Dyzenhaus on Positivism and Judicial Obligation

Abstract
The author criticizes the argument in Dyzenhaus (1991) that a study of South African judicial decisions establishes the superiority of Dworkinian anti-positivism over legal positivism. Among the claims criticized are: (1) Positivism and anti-positivism each imply a specific theory of judicial duty, and the decisions of South African judges are explained by their adherence to one or the other of these theories; (2) resistance to South African government policy was morally required of judges; (3) the only theory which supports this resistance (anti-positivism) is therefore the correct one; (4) the cases establish that judges do not have discretion in hard cases; (5) Dworkin's theory does not imply that South African judges are required to apply the wicked principles embedded in their legal system; (6) positivism involves a pragmatic contradiction.