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Institutional and Empirical Basis of the Rights Thesis, 11 Georgia Law Review 1173 (1977)


In rece~t years a new challenge to positivism has been issued in
the form of several articles by Professor Ronald Dworkin which
both raise objections to positivism and attempt to provide an alternative.
1 Professor Dworkin's new theory, the "rights thesis," is distinctive
because of three attributes-institutional autonomy, absence
of judicial discretion, and lack of judicial originality-which
he evidently believes answer his objections to positivism. This Article
is not so much a defense of positivism as an attempt to show that
the rights thesis does not possess, by virtue of these three characteristics~
greater normative or descriptive appeal.

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