Excerpt
Inhalt
INTRODUCTION
DWORKIN’S ATTACK ON HART
HART’S POSTSCRIPT
DOES THE POSTSCRIPT END THE DISPUTE?
ARE THEY REALLY ENGAGED IN DIFFERENT ENTERPRISES?
CONCLUSION
BIBLIOGRAPHY
INTRODUCTION
Throughout their intellectual lives, eminent legal theorists, Ronald Dworkin and Herbert Lionel Adolphus Hart, have had an ongoing debate where they have presented their own theories of law, whilst criticising each other’s theories. In fact, Dworkin’s criticisms of Hart’s theory are the basis on which Dworkin uncovers his own theory. Their arguments, at times, can be tricky for people other than themselves to get a hand on; but what can easily be detected is that Dworkin thinks there is an argument between them, whilst Hart does not.
This paper will dissect the current nature of dispute between Hart and Dworkin following an in depth, yet concise, elucidation of the main aspects of Dworkin’s attack on Hart’s positivism in both Taking Rights Seriously and Law’s Empire. This will be followed by Hart’s response in his Postscript to the second edition of The Concept of Law, and an examination of the subsequent academic opinions that have arisen on the basis of their debate.
DWORKIN’S ATTACK ON HART
(a) Taking Rights Seriously
It is undoubtedly the case that early in his work, Ronald Dworkin, gaining prominence, was making trouble with Hart[1]. He specifically stated that he wanted to make “...a general attack on positivism,” using “H. L. A. Hart’s version as a target...”[2] Dworkin’s core idea in this attack is based on his picture of adjudication which looks radically different from Hart’s.[3] His idea is that the legal positivism method of identifying the law exclusively by social sources is wholly inadequate[4] in capturing the true nature of legal reasoning and judicial judgement in so-called ‘hard cases’ at the appeal court level[5].
For Dworkin, in addition to settled legal rules, the law is comprised of legal principles which arise from the moral interpretation of these rules, rather than from ‘social sources’ alone. Although Hart expressly acknowledges that “in some systems, as in the US, the ultimate criteria of legal validity explicitly incorporates principles of justice or substantive moral values”[6] ; for Dworkin, incorporating such principles is essential in a theory of law. As evidenced in Riggs v Palmer[7], the strict application of rules in an ‘all or nothing fashion’ are commonly ineffective in deciding some cases.[8] He states that positivism “forces us to miss the important roles of these standards that are not rules,”[9] and thus rejects Hart’s rule of recognition for the very reason that it fails to incorporate principles.[10] Dworkin calls Hart’s account of the law brilliant but ‘flawed at its foundations’.[11] It is once we address these flaws, and acknowledge the existence of principles, we would get a theory like his own. It follows that, if Dworkin’s account of the law, and its incorporation of legal principles, is correct, then the ‘key tenets’ of positivism, including the sources thesis and the separation thesis, must be abandoned.[12]
(b) Law’s Empire
Although his basic criticisms of positivism remain the same[13], Dworkin’s picture of legal philosophy was substantially changed in his later works. It was thus difficult to see it carry on that project of critically evaluating Hart. In fact, when Law’s Empire was first published, many people were inclined to set aside its arguments on the basis that it was not really contradicting Hart’s theory.[14]
Firstly, Dworkin, early on in Law’s Empire, seems to accuse Hart of offering a semantic theory of law. Under such a theory, disagreements only arise because people have attached different meanings to the same words, such as the word ‘law’[15]. According to Dworkin, ‘law’ is an interpretative concept, and legal theories must therefore be interpretative, allowing one to choose between fairly different conceptions of the law[16]. Therefore, he rejects a semantic theory of law.[17] Dworkin has found support in some academics[18] ; but in spite of this, his argument here seems to be based upon a false depiction of Hart.[19]
Secondly, Dworkin concludes that legal philosophy is a matter of constructive interpretation and that there are three different types; namely, pragmatism, conventionalism and law as integrity[20]. He believes that the correct type to apply is ‘law as integrity’, and criticises the others[21]. ‘Law as integrity’ is Dworkin’s own account of the nature of law and incorporates principles rather than policy[22]. It holds that there will typically only be one right answer[23] for any given case, provided by a single interpretation of the law.[24]
Yet, it is his criticism of conventionalism that seems to be a direct criticism of legal positivism. According to the conventionalist, judges must follow the conventions in their legal systems, such as a rule of recognition, to tell them what the law is. Sometimes those conventions are left out, and leaves judges to fill in the gaps in a way similar to statutory law[25]. Indeed, Dworkin suggests that Hart is a conventionalist very briefly in this discussion.[26] But, if Hart is a conventionalist, Dworkin may also be indirectly criticising his positivism.[27]
Even if Hart can both be a conventionalist and offer a semantic theory of law, the difficulty is showing how Dworkin's arguments against these interpretations undermines Hart’s legal positivism. According to Lucy, there is really not much in Law’s Empire specifically in relation to the attack on Hart’s positivism [28] . You have to work awfully hard to find one, at the very least, for it is less obvious to see how the arguments of Law’s Empire are a direct challenge to the separation thesis, for example. [29] Perhaps Dworkin was bored with it, as his tone in Chapter 3 suggests, or that he simply ignored it.
Consequently, it appears that Dworkin has moved on from his conflict with legal positivism. Many critics argue that we that can accept everything Dworkin says in Law’s Empire for it is not necessarily incompatible with the separation thesis.
HART’S POSTSCRIPT
Although Hart was getting bored with the Concept of Law, and had gone on to write other things, he always said he would reply to Dworkin. Eventually, a ‘Postscript’ was posthumously attached to the Concept of Law, where Dworkin’s views on legal theory were intensely contested.[30]
Hart saw himself as giving a descriptive and general account of the nature of law.[31] It is general in the sense that it explains law wherever we find it and whenever we find it, and is not tied up with any particular legal system[32]. It is also descriptive in the sense that “it does not seek to justify or commend on moral or other grounds...”[33] He further writes that Dworkin’s theory is not descriptive and general in this way; thus, finding it difficult to understand why Dworkin maintains that general and descriptive theories which describe legal theory are at best ‘useless’.[34]
What Dworkin has been doing in Taking Rights Seriously and onwards was giving an account of what happens in a few legal systems – particularly in the US and the UK. Dworkin even states in Law’s Empire that his conception of law is “addressed to a particular legal culture,” that is, the culture of Anglo-American law. [35] Hence, according to Hart, they have never been engaged in the same task.
Hart acknowledges that “it is not obvious why there should be or indeed could be any significant conflict between enterprises so different as my own and Dworkin’s conceptions of legal theory”[36]. But concludes that since they are doing different things, they cannot disagree, and so, jurisprudence has room for the both of them.[37]
DOES THE POSTSCRIPT END THE DISPUTE?
In his ‘ Postscript’, Hart argues that he and Dworkin were in fact offering theories on different things. The only area of dispute between them, as it seems to Hart, is not about the nature of legal positivism or the separation thesis; rather it is about the question of method.
Dworkin has found that hard to swallow. He states that, “since Hart and I hold opposite opinions about the same issues...it is hard to credit his claim that we are not really disagreeing or that we are not trying to answer the same questions.”[38] Dworkin cannot accept the idea and his argument to that is in his article, ‘ Hart’s Postscript and the Character of Political Philosophy ’, where he offers why Hart is wrong in concluding that there is no dispute between them.
In the article, Dworkin points out their disagreement “not only about how law is to be identified, but also about what kind of theory a general answer to that question is. He [Hart] believed that such a theory is only and purely a description of legal practice. I believe that such a theory is an interpretation of legal practice that makes and rests on moral and ethical claims.”[39]
Firstly, Dworkin rejects Hart’s belief that his concept of law was purely descriptive in nature[40]. He claims that the only appeal that legal positivism has is when its core views on law’s function are brought out because it is not possible to merely describe a concept of law[41]. “How can Hart think that his conceptual study is ‘descriptive’?” Dworkin questions, “What sense of ‘descriptive’ can he have in mind?”[42]
Secondly, Dworkin is adamant that legal positivism, particularly Hart’s positivism, is driven by underlying moral and ethical claims. He rejects Hart’s view that he is simply a detached onlooker describing a concept of law from the outside[43].
Based on these arguments, Dworkin concludes that they are both engaged in the same enterprise and therefore there is still a dispute about the nature of legal philosophy. However, he claims that he is just doing it better that Hart.
ARE THEY REALLY ENGAGED IN DIFFERENT ENTERPRISES?
There are various speculations about what was really at dispute between Hart and Dworkin, and this is evidenced by the enormous amount of academic literature on the issue. We will in turn focus on arguments that claim they were engaged in: (a) completely different enterprises, on one hand, and (b) differing views of the same enterprise, on the other.
(a) Different Enterprises
The argument, put forward by Hart himself, was that there was no real dispute between them, and that they were engaged in “radically different enterprises.”[44] In fact, the only differences that might have arisen were simply regarding questions and concerns in legal theory, rather than arguments on the concept of law[45]. It could be argued that there were in fact some overlapping issues between the two theorists, but to focus on these would fail to show exactly how much the theorists were really just “talking past one another.”[46]
[...]
[1] Bix, B. Jurisprudence: Theory and Context (4th Edition). London: Sweet & Maxwell, 2006. – P. 96.
[2] Dworkin, R. Taking Rights Seriously. Cambridge, MA: Harvard University Press, 1977. – P. 22.
[3] Simmonds, N. Central Issues in Jurisprudence (3rd Edition). London: Sweet & Maxwell Limited, 2008. – P. 208.
[4] Dworkin, R. “Hard Cases”. Harvard Law Review. 88(6): 1975. – P. 1090.
[5] The inadequacies of the legal positivist account of judicial adjudication in ‘hard cases’ is discussed in both “The Model of Rules” (1967) and “Hard Cases” (1975).
[6] Hart, H. L. A. The Concept of Law (2nd Edition with a Postscript ed. P. A. Bullock and J. Raz). New York: Oxford University Press, 1997. – P. 204.
[7] (1889) 115 NY 506.
[8] Marmor, Andrei. “The Nature of Law”. The Stanford Encyclopedia of Philosophy. 2007.
[9] Dworkin, R. supra note 2 - P. 22.
[10] Dworkin, R. supra note 2 - P. 46-50.
[11] Raz, Joseph. “Two Views of the Nature of the Theory of Law.” Hart’s Postscript: Essays on the Postscript to the Concept of Law. Ed. Jules L. Coleman. New York: Oxford University Press, 2001. – P. 28.
[12] Dworkin, R. supra note 2 - P. 17.
[13] McCoubrey, H. and White, N. Textbook on Jurisprudence (3rd Edition). London: Blackstone Press Limited, 1999. – P. 160.
[14] Simmonds, N. supra note 3 - P. 215.
[15] Dworkin, R. Law’s Empire. Cambridge, MA, USA: Harvard University Press, 1986. – P. 32, P. 46.
[16] Ibid. P. 104.
[17] Simmonds, N. supra note 3 - P. 217.
[18] See Stavropoulos, N. “Hart’s Semantics.” Hart’s Postscript: Essays on the Postscript to the Concept of Law. – P. 59.
[19] Hart dismisses out of hand the allegation that he suffered from a ‘semantic sting’. He states: ‘ nothing in my book or in anything else I have written supports such an account of my theory ’ (Hart. H.L.A. The Concept of Law. supra note 6 - P. 246).
[20] Dworkin, R. supra note 15 - P. 115-275.
[21] Hart, H.L.A. supra note 6 - Ch. 4 & 5.
[22] Dworkin, R. supra note 15 - P. 221.
[23] Also known as ‘the rights thesis’.
[24] Dworkin, R. supra note 15 - P. 226.
[25] Hart, H.L.A. supra note 6 - P. 116 - 117.
[26] Dickson, J. “Is the Rule of Recognition Really a Conventional Rule?” Oxford Journal of Legal Studies. 2007– P. 400-402.
[27] McCoubrey and White. supra note 13 - P. 160.
[28] Lucy, W. Class Lecture. Jurisprudence. University of Manchester, Manchester, England. 25 February 2010.
[29] Ibid.
[30] Bix, B. supra note 1- P. 96.
[31] Hart, H.L.A. supra note 6 - P 239.
[32] Hart. H.L.A. “Comment”. Issues in Contemporary Philosophy. Ed. R Gavison. Oxford: Clarendon Press, 1987. – P. 36-40.
[33] Hart, H.L.A. supra note 6 - P. 240.
[34] Ibid. P. 242.
[35] Dworkin, R. supra note 15 - P. 102.
[36] Hart, H.L.A. supra note 6 - P. 241.
[37] Dworkin, R. “Hart’s Postscript and the Character of Political Philosophy”. Oxford Journal of Legal Studies. 24:2004. – P. 2.
[38] Ibid. P. 5.
[39] Ibid. P. 5.
[40] Ibid. P. 20.
[41] Ibid. P. 3.
[42] Ibid. P. 5.
[43] Ibid. P. 1-2.
[44] Hart, H.L.A. supra note 6 - P. 240.
[45] Hart, H.L.A. supra note 32 - P. 36-40.
[46] Bix, B. supra note 1 - P. 96.