Dualistic Legal Phenomena and the Limitations of Positivism

Often, in a case of first instance, a judge will reach a decision by an appeal to legal principles. For example, in the 1889 case of Riggs v. Palmer a New York court had to decide whether a grandson who had murdered his grandfather could inherit under the will in which his grandfather had named him an heir. The statutes and rules of testamentary law did not prohibit the inheritance. The court, however, invoked the legal principle that no one should be permitted to profit by his own wrong and denied the claim to inheritance. The use of such principles by courts raises an important question for legal theory: Do these principles exist within or without the legal system? This note argues that an adequate conception of a legal system must include principles capable of justifying rules and acts. Part I describes two versions of positivist legal theory-one that contains only rules and another that includes principles derived from rules-and demonstrates that Professor Dworkin, while claiming to refute positivism, has actually advanced a theory consistent with the latter version. Part II argues that both versions of positivism are inadequate because they fail to describe and explain adequately some systemic operations, including legal fictions, and some legal phenomena, including adverse possession. Part III outlines a legal theory in which rules and nonderivative principles are equally basic and illustrates how such a theory is capable of describing and explaining complex legal phenomena