THE DIALOGICS IN HART-DWORKIN DEBATE ON THE CONCEPT OF LAW

Abstract

One of the critical problems in philosophy of law for two decades is the clash between Hart’s views and those of his former student and successor as Professor of Jurisprudence at Oxford University, Ronald Dworkin. Hart is a positivist whose account of law, or ‘what the law is’ is always potentially different from ‘what the law ought to be’. Other positivists include Jeremy Bentham, John Austin, Hans Kelsen, Joseph Raz, and a host of others. In his Essays in Jurisprudence and Philosophy, Hart brings out a number of ways the expression ‘legal positivism’ has been used. He discerns five tenets or contentions ‘legal positivism’ has assumed in contemporary jurisprudence. With this, he arrives at the conclusion that law is basically a system of rule; a union of primary and secondary rules. The opposite contention of natural lawyers appeared easily dismissed by reference to professional practice. When lawyers give information about the law, or apply the law, they often complain about its contents; they show no readiness to trace its validity back to a moral basis. If asked to justify an assertion about the law, they cite authority, not reason; precedents and statutes, not treatises about justice or the good life. Dworkin does not challenge the conventional positivist assumptions about the decision of legal questions in clear cases by the application of valid rules. In ‘Taking Rights Seriously’, Dworkin arrives at three important conclusions about the nature of law. First, law is not solely comprised of rules. The logic of adjudication in ‘hard cases’—that is, cases about which informed people can reasonably disagree—leads him to the conviction that rules are part of the law. But in hard cases, he argues, judges are guided to their decisions by standards which are not rules. Secondly, no line can be drawn between law and morality because the non-rule standards which judges employ in order to determine ‘what the law is’ in hard cases include principles embedded in the community’s morality. Thirdly, judges do not legislate because reasons never run out and there is never a middle ground. He insists that there must be a right answer to virtually any questions of law. It is clear Dworkin has developed a distinctive system that transcends, and bridges the gap between naturalism and legal positivism; thereby integrating law into a branch of political morality. How then are we to adjudicate between Hart and Dworkin on these issues? It is the position of this work that principles are not propositions describing rights as Dworkin upholds. Rather, principles are relatively general norms which are conceived of as ‘rationalizing’ rules or sets of rules’. A legal principle, in the view of the person putting it forward as a principle, explains and justifies existing legal rules. It authorizes any new ruling which it would also explain and justify. This study examines Hart-Dworkin debate and draws a response.