Juris

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1. INTRODUCTION 1.1 Hart-Dworkin Debate  –  A  A Contextual Outline

The field of law will always and forever owe an enormous debt to H.L.A. Hart. His views ignited furious debate within the legal profession, even before his booklength treatment of the law was released. The Hart-Fuller debate, a predecessor to the topic of this thesis, percolated in the pages of the  Harvard Law Review in Review in the late 1950s. The disagreement was over the connection between the law and morality. Hart thought that there was a clear difference between what the law is and what it ought to be. Morality is one thing, legality another thing altogether. Lon Fuller passionately contended that morality was intimately related to the law, and was in fact the source of the law’s binding power. It was a debate with ancient roots, and would not be settled with a pair of jousting law r eview articles.

When Hart published The Concept of Law in Law  in 1961, it transformed the way lawyers and philosophers talked about the law. He took important insights from the field of linguistic philosophy  –   drawing on his close friendship with the influential language philosopher, J.L. Austin  –  and  and used them to analyze the way of the usage legal terms. The result was the most sophisticated picture of the law that the legal world had yet encountered. Hart corrected important oversights and simplifications from John Austin’s The Province of Jurisprudence Determined , the first work expressly founded upon legal positivism. He showed that legal positivism did not have to rest on the concise but far-fetched notion that the law is merely the command of the sovereign that is backed by sanction . The grip which Hart’s book and Hart himself had on the legal world would lead his most important critic to say of him, “in legal philosophy, constructive thought must start with a consideration of his views.” views.”1. That critic is Ronald Dworkin. Dworkin saw in Hart’s work serious oversights and simplifications. Ultimately, he found the flaws fla ws in Hart’s formulation of the entire project of legal positivism. He understood the vast improvement 1

Dworkin, Ronald. Taking Rights Seriously. Cambridge: Harvard University Press, 1978, p. 16

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which The Concept of Law represented over previous versions of legal positivism,  but he concluded that any sort of positivism was not enough to completely and accurately describe the law.

The debate is organized around one of the most profound issues in the philosophy of law, namely, the relation between legality and morality. Dworkin’s basic strategy throughout the course of the debate has been to argue that, in one form or another, legality is ultimately determined not by social facts alone, but by moral facts as well. In other words, the existence and content of positive law is, in the final analysis, governed by the existence and content of the moral law. This contention, therefore, directly challenges and threatens to undermine the positivist  picture about the nature of law, in which legality is never determined by morality  but rather by social practice. For if judges must consider what morality requires in order to decide what the law requires, social facts alone cannot determine the content of the law. As one might expect, the response by Hart and his followers has  been to argue that this dependence of legality on morality is either merely apparent or does not, in fact, undermine the social foundations of law and legal systems.

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1.2 Objectives Set in the above perspective or background, the broad objective of the study is to:

1. To study the historical background and believes of the debating philosophers.

2. To analyse the debate and draw out conclusions.

1.3 Scope of the study The present project is an attempt to analyze the Hart-Dworkin debate and what it entails. It also directs its focus towards the major sets of the ideas and how they contradict each other and concludes the study thusly.

1.4 Methodology of the study

This project is based on a doctrinal research methodology. Relevant points along with some examples have been provided to prove some points in the topic. Accumulation of the information on the topic includes various secondary sources such as books, articles, e-articles, etc. The matter from these sources has been complied and analysed to understand the topic in a better way.

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2. BRIEF HISTORY

2.1 HART  –  (1907 –  1992)

Herbert Lionel Adolphus Hart usually cited as H. L. A. Hart, was a British legal  philosopher, and a major figure in political and legal philosophy. He was  Professor of Jurisprudence at Oxford University and the Principal of Brasenose College,  Oxford. His most famous work is The Concept of Law (1961; 3rd edition, 2012). He is considered one of the world's foremost legal philosophers in the twentieth century, alongside Hans Kelsen. Although Hart was a positivist, he did acknowledge that it was a far cry from the largely coercive picture of law painted by his predecessors. He believed that law is a social phenomenon and can only be explained by reference to the actual social  practices of a community. Hart says there is a necessity for rules that protect property and persons, but despite this view he did not say that law is derived from morals or that there are any conceptual relationship between t he two. Hart wanted to advance legal theory by providing an analysis of the distinctive structure of legal systems and a better understanding of the differences between law, morality and coercion. Hart tells us within his book The Concept of Law, there are certain matters that influence human behaviour and he divides these into two categories, social habits and social rules. Hart maintains that a legal system, in contrast to a set of unrelated laws, consists of a union of primary rules of obligation and secondary rules of which the most important he believes is the ‘rule of recognition’. Primary rules are ones that actually tell people to do things or not to do something, they lay down duties. Secondary rules are concerned with the primary rules in that they lay down the ways in which primary rules may be introduced, can be varied or can be abandoned. In developing his theory of a legal system, Hart rejects both the strictly formalist view and the rule-scepticism movement and in doing so he strikes a compromise, he accepts that laws are indeed rules, but also recognises that for a judge to arrive at a

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decision, they have a wide discretion and he is driven to this conclusion by virtue of the rule of recognition.

2.2 DWORKIN –  (1931 –  2013)

Ronald Myles Dworkin was a Jewish-American  philosopher, jurist,  and scholar of   United States constitutional law. His theory of   law as integrity as presented in his  book titled Law's Empire,  in which judges interpret the law in terms of consistent moral principles, especially justice and fairness, is among the most influential contemporary theories about the nature of law. Dworkin advocated a "moral reading" of the United States Constitution, and an interpretivist approach to law and morality. He was a frequent commentator on contemporary political and legal issues,  particularly those concerning the  Supreme Court of the United States,  often in the  pages of The New York Review of Books. Dworkin as a critic of HLA Hart's legal positivism has been summarized by the Stanford Encyclopedia which has stated that: ‘Dworkin, as positivism's most significant critic, rejects the positivist theory on every conceivable level. Dworkin denies that there can be any general theory of the existence and content of law; he denies that local theories of particular legal systems can identify law without recourse to its moral merits, and he rejects the whole institutional focus of positivism. A theory of law is for Dworkin a theory of how cases ought to be decided and it begins, not with an account of the political organization of a legal system, but with an abstract ideal regulating the conditions under which governments may use coercive force over their subjects.’2 Dworkin is most famous for his critique of  Hart's legal positivism;  he sets forth the fullest statement of his critique in his book  Law's Empire.  Dworkin's theory is 'interpretive': the law is whatever follows from a constructive interpretation of the institutional history of the legal system. Dworkin argues that moral principles that people hold dear are often wrong, even to the extent that certain crimes are acceptable if one's principles are skewed enough. To 2

"Legal Positivism (Stanford Encyclopedia of Philosophy)".  Plato.stanford.edu. 2003-01-03. Retrieved 2013-02-14.

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discover and apply these principles, courts interpret the legal data (legislation, cases etc.) with a view to articulating an interpretation that best explains and justifies past legal practice. All interpretation must follow, Dworkin argues, from the notion of "law as integrity" to make sense. Dworkin’s opinion is demonstrated by the use of his interpretive theory and that is once the law is identified (pre-interpretive stage), he states that it should then be  justified (interpretive stage), for example a crime of burglary is justified by the moral need for the person to protect his/her property. He states that a legal theory does not merely identify the rules of the legal system, but it interprets them and allows them to  be evaluated. Dworkin moves away from positivism's separation of law and morality, since constructive interpretation implicates moral judgments in every decision about what the law is.

3. HART  –  DWORKIN DEBATE  –  AN ANALYSIS A starting point of Dworkin’s philosophy of law might sensibly be regarded by some as an attack on Hart’s model of rules. For Hart has an understanding of what the law is and what the law should be, Dworkin says this is unacceptable as law consists not merely of rules, but a court when it has to decide on a hard case will draw on moral or political standards, principles and policies in order to reach the appropriate decision. Dworkin’s criticism concerning Hart’s theory of legal positivism has been seen in many articles since its appearance in Dworkin’s ‘The Model of Rules I’ . Dworkin argues; the continually changing nature of law means that it should be analysed in terms of justice, legal principles and morals, not just plain facts. The sequence of the debate has been Hart’s Concept of Law, published in 1961, then it was Dworkin’s criticism of Hart’s thesis  Law’s Empire, published in 1986. Hart’s response to Dworkin is contained within the Postscript of the second edition Concept of Law, which was published in 1994. The principle difference between the two writers is that Hart, at the point where the law is incomplete, in that it provides no answer to a question, then the judge can exercise his discretion in reaching a solution

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to fill the gap, thereby creating new law. Dworkin believes that law never runs out and the answer is always to be found if a judge applies his mind to the matter fully. There are a number of core issue’s around the debate, for instance, does the law contain principles as well as rules, or does it concern whether judges have discretion in hard cases. In “The Model of Rules I,” Dworkin argues that legal positivism, so characterized, cannot account for the manifest existence of legal principles. Hart’s theory, or any such positivistic account, is a “model of and for a system of rules”

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and, as such, must be rejected. Dworkin claimed that the dispute between himself or rather his ideas and Hart was whether the law itself is a model of rules, even though Hart never actually claimed that law was simply a made of just rules, as in his  postscript he claimed that the use of the word ‘rule’ did not claim that the legal system comprised of an ‘all or nothing’ standard. Some of the main issues the debate dealt with were –  1) Judicial Discretion –  Hart’s doctrine concerning judicial discretion is not predicated on a model of rules, but rests on a picture of law, that privileges social acts of authoritative guidance. A legal rule for Hart is a standard that has been identified and selected as binding on the specific society, by a social act, whether that is from an individual directive, a judicial decision, legislative enactment or a social custom. The debate does not just concern issues as to the existence of judicial discretion, the foundations of rules, the function of law itself and the nature of any legal interference are other main topics, as well as the subject concerning law and morality. The critique offered by Dworkin on legal positivism in 1967 4  differs from what he wrote in 1986 5, therefore the debate itself was seen as an evolving issue. Dworkin begins his critique by arguing that the judicial discretion is implausible insofar as it ignores the many cases where judges regard themselves as bound by law even though no rules are clearly applicable. In H enningsen v. Bloomfield

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Ronald Dworkin, “The Model of Rules I,” Ibid. 5 Ronald Dworkin, “Law’s Empire: 4

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 Motors 6, for example, the court was asked to hold an automobile maker liable for injuries sustained as the result of defective manufacturing despite the fact that the injured plaintiff signed a waiver of liability. 7 The court could find no explicit rule that would authorize it to ignore such a waiver but nevertheless held for the  plaintiff. In support of its decision it cited a number of legal principles. These  principles, the court reasoned, were of such great importance that they outweighed contrary principles, such as those supporting the freedom to contract, which militated in favor of enforcing the waiver. According to Dworkin, Henningsen was not an aberration. “Once we identify legal principles as separate sorts of standards, different from legal rules, we are suddenly aware of them all around us. Law teachers teach them, law books cite them, legal historians celebrate them.”8  In fact, legal principles are most conspicuously at play in hard cases, where they guide and constrain judicial decision making in the absence of legal rules. Legal positivism ignores the existence of these norms precisely because it holds, via the Discretion Thesis, that cases such as Henningsen are not governed by law. Legal positivism, in other words, is a model of rules only. Dworkin is careful to point out that there are several “weak” senses in which  judges must exercise discretion even in hard cases. Judges must exercise discretion in the sense that they are required to use their judgment in reasoning from legal principles to legal conclusions. At least sometimes as well, they have discretion in the sense that they have the final say in a particular case. Dworkin denies, however, that judges must exercise what he calls “strong” discretion, namely, the idea that they must look beyond the law and apply extralegal standards to resolve the case at hand. Once one recognizes the existence of legal  principles, Dworkin claims, it becomes clear that judges are bound by legal standards even in hard cases. Judicial discretion is inevitable, according to Hart, because it is impossible for social acts to pick out standards that resolve every conceivable question. Contrary

32 N.J. 358, 161 A.2d 69 (N.J. 1960 ) Ibid. discussed in Dworkin, Taking Rights Seriously, 25 – 6. 8 Dworkin, “Model of Rules I,” 28. 6 7

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to Dworkin’s interpretation, Hart never embraced the model of rules, either explicitly or implicitly.

2) Rule of Recognition –  The Hart/Dworkin debate begins with Dworkin's 1967 paper “The Model of Rules,” where Dworkin rejects to Hart four doctrines: that law consists of “rules”; that legal rules are identified via a “rule of recognition”, “by tests with their  pedigree not content”; that where a rule does not control a case, judges have discretion; and that in those cases where judges have discretion, neither party has a pre-existing legal right to prevail. From Hart we gain a clearer understanding of law by maintaining, for the purpose of analysis, a separation between the law as it is the law as it ought to be. To Dworkin this is unacceptable and, indeed, impossible. This is because law consists not merely of rules but also of what Dworkin called “non-rule standards”. There is no rule of recognition which distinguishes between legal and moral principles. Dworkin opines that rules are “all or nothing” standards and they cannot conflict  because valid rules are conclusive reasons for action. If two rules conflict, then one of them cannot be valid. By contrast, principles do not dispose of the cases to which they apply and they are not necessary conclusive even they support to various actions. Valid principles, therefore, may conflict a nd typically do. Dworkin criticises Hart’s rule of recognition as he believes that it is not possible to claim that there is criteria that determines what is ‘law’ and what it is not. This can be seen when there is a disagreement amongst judges within case law. Dworkin’s argument is that Hart’s rule of r ecognition is based on content, due to its source and linguistic merits, rather than because of what it actually aims to achieve. He states there is no rule of recognition which distinguishes between legal and moral principles and a judge in a hard case must therefore appeal to  principles, which include his own conception of what is the best interpretation of the network of political structures and decisions within his community. Hart follows an approach based on understanding, not merely on the actions that occur, but also in the meanings those actions have to the participants in the

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 practices being studied, but without making any moral judgements, therefore his account is descriptive as it is morally neutral. Dworkin explains his theory by reference to hard cases that arise in the court and which have a large degree of uncertainty as to the outcome, owing to the fact that there is no pre-existing rule governing the relevant case. A case showing this is

Riggs v Palmer 9 in which a grandson murdered is grandfather in order to benefit under the will. Since the will itself was valid, there was at the time no law to say the grandson could not inherit, but the court held that because of the legal principle saying that no-one should be permitted to profit from his own fraud or take advantage of his own wrong, the grandson was therefore disbarred from the inheritance. Dworkin uses the above case to illustrate his believe that Hart has forgotten the importance of principles and in many cases the judges regard themselves as bound  by the laws of the land, even though there is no rule that is clearly applicable to the case in question. Hart within his postscript claims this is an example of a principle winning in competition of a rule, but he states that this shows that rules themselves do not have an ‘all or nothing’ character as they can be brought into conflict with  principles that may outweigh them. Dworkin claims that law is concerned not only with what has been established, and the rules relating to the laws themselves, but also with principles. He states that unlike rules, principles have the dimension of weight or importance or morality and when two principles lead to different conclusions, the judge must take into account the relative weight of each. Where rules do not have this, if two rules conflict, then only one can be valid and which one, will be decided on another rule, which may  be the rule laid down by a higher court. For Hart the ‘rule of recognition’ is a social rule and therefore established by th e conduct of those who also accept the rule as a justification for disparaging those who fail to observe it. Dworkin claims that this feature within Hart’s theory commits him to the proposition that the ‘rule of recognition’ may be uncertain within some particular points of the law itself. He also argues that if judges are divided about what they must do, if subsequent parliaments try to repeal an 9

115 N.Y. 506 (1889)

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entrenched rule, then he states that no rule can govern any decision. Hart denies this and regards The Concept of Law  as an explanation and description of the distinguishing characteristics of law from other systems of social rules, with the main ingredient being his ‘rule of recognition’. For Dworkin, Hart’s rule of recognition cannot include substantive moral sta ndards among its criteria of law, this has been denied and has been stated as being misunderstood and arises mainly through Dworkin overlooking the fact that, in  both hard and easy cases, judges share a high degree of common understanding about the criteria that determines whether a rule is actually a legal rule or not.

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4. CONCLUSION

“The moment now seems opportune to step back and ask whether the Hart/Dworkin debate deserves to play the same organizing role in the  jurisprudential curriculum of the twenty-first century that it played at the close of the twentieth. I am inclined to answer that question in the negative, though not, to  be sure, because I can envision a jurisprudential future without Hart’s masterful work at its centre. Rather, it seems to me  –   and, I venture, many others by now  –  that on the particulars of the Hart/Dworkin debate, there has been a clear victor, so much so that even the heuristic value of the Dworkinian criticisms of Hart may now be in doubt." 10

 Needless to say, Leiter thinks that Hart has been the clear winner and that, given this resounding victory, the Hart-Dworkin debate no longer deserves the scholarly and pedagogical pride of place that it has been acc orded for the past four decades.

Looking at the actual question within this piece of work, and the concerns relating to the Hart/Dworkin debate, one can actually say it is slightly deceiving as it tends to suggest that it was only Hart and Dworkin that were involved in it. In fact Hart himself never directly responded to Dworkin’s theory during his lifetime, even though he did criticize some of Dworkin’s positive proposals, it was left to others to defend. The debate was a dynamic entity carr ying itself for a long time.

10

Brian Leiter, ‘Beyond the Hart -Dworkin Debate’

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5. REFERENCES

Articles – 

Scott J. Shapiro, The “Hart-Dworkin” Debate: A Short Guide to the Perplexed, MLU,  No. 77 (2007)

Tommaso Pavone, A Critical Adjudication of the Hart-Dworkin Debate

Josh Taylor, On the Hart-Dworkin Debate  –   An Examination of Legal Positivism (2012)

Website – 

Concerning the Hart and Dworkin Debate, Lawteacher , http://www.lawteacher.net/free-law-essays/constitutional-law/concerning-the-hartand-dworkin-debate-constitutional-law-essay.php

Cara Howells, The Hart-Dworkin Debate, Prezi, (21 Feb. 2013), https://prezi.com/kqb7k72y3c8c/the-hartdworkin-debate/