Concerning the Hart and Dworkin Debate

“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.”

[Brian Leiter, ‘Beyond the Hart-Dworkin Debate’]

DISCUSS

Before we can look at the issue’s surrounding the question concerning the Hart/Dworkin debate or anything can be discussed the first thing to be addressed is who Hart was, and who Dworkin is and what the subject matter concerns.

Professor Hart was one of the most important legal and political philosophers of the twentieth century. A valuable starting point of Hart is from ‘Positivism and the Separation of Law and Morals’, [1] where he states there are five main views that seem to be associated with legal positivism;

That Laws are commands of Human Beings.

That there are no necessary connection between law and morals.

That a legal system is a closed logical system in which correct decisions may be deduced from predetermined rules by logical means alone.

That the analysis of legal concepts is worth pursuing, distinct from sociological and historical enquiries and critical evaluation.

That moral judgments cannot be established as statements of fact. [2]

Certain jurists are described as positivists and these include Hart, Bentham, Austin and Kelsen. They were seen as the most seemingly influential within jurisprudential theory of law, but each of these writers not only pose different questions [3] , but each of their methods of enquiry and objectives are as different as the features they tend to share. Legal positivism concentrates its attention on what law is, not on what its substantive content should be, nor on what useful things can or could be done with it.

Jurisprudence is the study of the nature of law, one of the main questions that may occur in a person’s mind is ‘what is law?’. John Austin made this question a focus of his attention and in the late ninetieth century Austin’s views were established as a dominant force within English legal thinking, and his work within jurisprudence has been regarded in the Anglo-American tradition as the leading work in opposition to the natural law theory.

Austin’s notion of law, as orders backed by threats of sanctions, with the fundamental legitimacy of the legal system resting on a general ‘habit of obedience’, was so simplistic that it would have been difficult not to improve on it. His legal positivism sees the issue of laws reducing to the issue of who sets the rule or command and how it is enforced. This has been criticised (including principally by Hart) as “the gunman situation writ large”. Austin most certainly did not set out to arrive at an analysis of law conterminous with the bully-boy situation [4] . He was, however, dissatisfied with much of the fairly vacuous and impenetrable material which was being taught and in British universities. Austin’s was seen as a back-to-basics approach to the analysis of law.

Austin himself was a disciple of Bentham and both Austin and Bentham represent the classical school of English legal positivism, which are often regarded as misguided. Bentham sought to subject the common law to the cold light of reason, he attempted to demystify the common law and to expose what actually lay behind the mask [5] . The law itself at the time was a perplexing network of technical rules created by lawyers and judges, which seemed to serve their own interests.

Bentham devoted a significant portion of his onslaught against the common law tradition to the theory of common law and the extent to which the theory itself differed from actual practice. In the eighteen century the common law was considered to be an expression of immemorial custom and long standing practice which embodied natural reason.

For Bentham the law lay quite simply in codification and he stated that once the law was codified “ a man need but open the book in order to inform himself what the aspect borne by the law bears to every imaginable act that can come within the possible sphere of human agency” [6] .

A number of points have been made concerning both Austin and Bentham, but Kelsen was seen by some as being the least understood of legal theorists [7] . He insisted on the separation of law and morals. His “pure” theory of law had become as important as Hart’s theory and to some represents a significant strand of modern legal positivism. The ‘pure’ theory is a profound statement about the way in which he states the law should be understood, he argues that it should be conceived to be a system of ‘ought’s’ or ‘norms’, but he also acknowledges that the law consists not merely of norms, but is made up of legal norms and legal acts as determined by those norms. [8] By ‘norms’ Kelsen meant that something ought to be or ought to happen, especially that an individual ought to have behaved in a specific way. [9]

Joseph Raz another legal theorist argues that the identity and existence of any legal system can be tested by reference to three elements; sources, efficacy and institutional character. He states that law is therefore autonomous and can be identified without recourse to morality. Raz says the existence of every law and its content can be determined by a factual enquiry about conventions, institutions and the intention of the participants within the legal system. Law always concerns facts, it is never about moral judgements, and some therefore see Raz as a Hard Positivist. He believes that the law is authoritative and it guides behaviour in a way that morality cannot do, the law asserts its primacy over all other codes of conduct and is the ultimate source of authority.

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 [10] . 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 the 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 [11] . 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.

Hart believes the secondary rules are very important in any society as an attempt to analyse the law in terms of a single type of rule would be distorted, so the secondary rules attempt to cure failing within primary rules. He argues the most important feature of the secondary rules is the ‘rule of recognition’, as through this rule, conduct can be regulated even if there are some moral disagreements. Wherever such a rule of recognition is accepted, both private individuals and officials are provided with authoritive criteria for identifying primary rules of obligation [12] . Thus Hart believes that the basis of any legal system is where the primary rules are identified by the secondary rules of recognition.

Furthermore Hart in distinguishing primary rules of obligation from the secondary rules he takes the position that there is at least one type of law that imposes an obligation [13] , which tells citizens that they must not do this or that they must do it, which raises the question of what an obligation with respect to legal rules actually mean [14] .

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 decision, they have a wide discretion and he is driven to this conclusion by virtue of the rule of recognition [15] .

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.

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’ [16] 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 to fill the gap, thereby creating new law.

Dworkin says the law never runs out, the answer is always there to be found and if the judge applied his mind to the matter fully a clear winner can be found [17] .

There are a number of core issue’s around the debate, for example does the law contain principles as well as rules, or does it concern whether judges have discretion in hard cases. 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 [18] he claimed that the use of the word ‘rule’ did not claim that the legal system comprised of an ‘all or nothing’ standard.

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 [19] . 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 [20] , the function of law itself [21] 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 differs from what he wrote in 1986, therefore the debate itself was seen as an evolving issue.

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 recognition is based on content, due to its source and linguistic merits, rather than because of what it actually aims to achieve. [22] 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 [23] .

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 practices being studied, but without making any moral judgements, therefore his account is descriptive as it is morally neutral [24] .

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 [25] 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. [26]

Another example of principles outweighing rules can be seen in Henningsen v Bloomfield Motors [27] , where the court was asked to hold a car maker liable for injuries sustained as a result of defective manufacturing, even though the plaintiff signed a contract wavering liability. There was no explicit rule concerning the signed waiver, but the court held for the plaintiff. The court used a number of legal principles to support its decision and ‘in a society such as ours the motor manufacturer is under a special obligation in connection with the construction, promotion and sale of his vehicles’ [28] . The court believed these were more important, that it outweighed contrary principles, such as those that support the freedom to contract. No court before the Henningsen case applied the principle that car manufacturers were subject to a greater standard of care.

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 [29] . He states that unlike rules, principles have the dimension of weight or importance 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.

He describes principles as a standard that is to be observed, not because it will secure a economic, political or make a social situation desirable, but because it is a requirement of fairness or some dimension of morality.

Although principles are at times well established by judicial precedent, they are also at times not established until there is an adjudication of ‘hard cases [30] . Dworkin defends his concept of legal principles with intent and vigour in ‘The Model Of Rules’, but his position emerges much more clearly in his article ‘On Not Prosecuting Civil Disobedience’ [31] , where his opposition to legal positivism is a kind of conundrum for philosophy of law. He is able to demonstrate that the rules approach of Hart to certifying valid positive law does not take into account the presence of principles within jurisprudence, it seems to appear in his article that principles play a role by some judges, when arriving at their decision, interpreting their reasoning and justifying their claim.

Hart’s response to this must take into account that he sees law as an institution within a larger social system, which he believes is a form of rule-making, rule-applying and rule enforcing behaviour. The rules do appear to have a connection to morality, in origin and on occasion through interpretation, but Hart explains this overlap by his introduction of the ‘rules of recognition’. [32]

Dworkin criticises Hart in many points, but he says Hart’s descriptive theory of law is misguided as it cannot satisfactory take into account the insider’s viewpoint of the law [33] , which he believes is essential in understanding the legal system. He states that a theorist should speculate as if he were a participant in the practice. Dworkin therefore is saying that the most valuable theories of law are the interpretive ones. Hart believes Dworkin’s central objections seem to be that any legal theory must take account of the internal perspective of the law and that no adequate account can be provided by a descriptive theory as their viewpoint is not one of a participant, but of an external observer [34] .

Hart argues that there is nothing in the project of descriptive jurisprudence to preclude a non-participant external observer from describing the ways in which the law can be viewed from such an internal point of view. A descriptive legal theorist may understand and describe the internal perspective of the law without actually adopting it [35] .

Hart states that there are no necessary conceptual connection between the content of law and morality and there can be legal rights and duties, which have no moral justification whatever. Whereas, Dworkin rejects this in favour of the view that there must be some form of prima-facie moral grounds for assertions of the existence of legal rights and duties. So for him legal rights must be understood as a species of moral rights, this is a crucial element in his legal theory and he states that the opposed positivist doctrine belongs to ‘the peculiar world of legal essentialism’ [36] , in which they just give pre-analytical legal rights and duties without any kind of moral ground or force. Hart says legal rights and duties are the point at which the law with its coercive resources respectively protects individual’s freedom and restricts it or confers on individuals to them the power to avail themselves of the law’s coercive machinery. ‘So whether the law itself, is good or bad, just or unjust, rights and duties demand attention as focal points in the operations of the law, which Hart believes is extremely important to human beings and it is independent of moral merits’ [37] .

For Hart the ‘rule of recognition’ is a social rule and therefore established by the conduct of those who also accept the rule as a justification for disparaging those who fail to observe it [38] . 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 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’.

Dworkin says what ought to be if coercion is to be justified and what at its best actually happens in his own society, whether it be consciously or unconsciously and how judges decide or try to decide on hard cases, his defect seems to be his failure to provide a sufficient answer concerning the question on whether the duty of constructive interpretation applies irrespective of the evil of a regime of which a judge can find themselves a part of [39] . Hart is telling us what any legal system is, but his defect lies in his assertion that all legal systems, at all times, hard cases are decided by judges having the discretion that he ascribes to them.

For Dworkin, Hart’s rule of recognition cannot include substantive moral standards 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.

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 [40] , it was left to others to defend. But who actually wins the debate, I believe no-one as they both have a different starting point and they talk past each other.

While Hart’s theory is probably the dominant view among analytically inclined philosophers of law, it is also the subject of competing interpretations together with persistent criticisms and misunderstandings. Many others have argued on both sides including Joseph Raz, Jules Coleman, Harold Granville, John Finnis, Hans Kelsen, Lon Fuller and Kenneth Himma to name but a few.

With regard to Brian Leiter’s view that there is a clear winner, I believe this to be untrue, neither party has conceded (in respect of Hart now this would be impossible) and due to the number of other jurists that have argued on both sides of the debate, it seems that this argument will continue and in the future will probably evolve due to new followers in each camp.

Case

Henningsen v Bloomfield Motors 32 N.J. 358, 161 A.2d 69 (1960) discussed in Dworkin, Taking Rights Seriously, 25-26

Riggs v Palmer 115 NY 506, 22 NE 188 (1889)