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.
Table of Contents
- Introduction
- Dworkin's Attack on Hart
- Taking Rights Seriously
- Law's Empire
- Hart's Postscript
- Does the Postscript End the Dispute?
- Are They Really Engaged in Different Enterprises?
- Conclusion
Objectives and Key Themes
This paper aims to analyze the ongoing debate between Ronald Dworkin and Herbert Hart, two eminent legal theorists. The paper examines Dworkin's critique of Hart's legal positivism, focusing on the arguments presented in "Taking Rights Seriously" and "Law's Empire." It then analyzes Hart's response in the Postscript to the second edition of "The Concept of Law," and explores the subsequent academic discussions on this debate.
- The nature of legal positivism and its adequacy in understanding legal reasoning and judicial judgment.
- The role of legal principles in legal decision-making, particularly in "hard cases."
- The interpretation of legal concepts and the difference between semantic and interpretative theories of law.
- The relationship between descriptive and general theories of law.
- The nature of legal disagreement and whether Dworkin and Hart are truly engaged in a dispute.
Chapter Summaries
- Introduction: The introduction sets the stage for the debate between Dworkin and Hart, highlighting their opposing views on the nature of law. It emphasizes Dworkin's critique of Hart's positivism, which forms the foundation of his own theory of law. The introduction also suggests that Dworkin believes there is a dispute between them, while Hart does not.
- Dworkin's Attack on Hart: This section details Dworkin's criticism of Hart's positivism. Dworkin's core idea is that Hart's method of identifying law solely through social sources fails to capture the complexity of legal reasoning and judicial judgment in "hard cases." He argues for the inclusion of legal principles, derived from moral interpretations of legal rules, as an essential element of law.
- Hart's Postscript: This section examines Hart's response to Dworkin's criticisms in the Postscript to "The Concept of Law." Hart asserts that he and Dworkin are engaged in different tasks – a descriptive and general account of the nature of law versus a more specific account of legal practice in certain legal systems. Therefore, he argues, they are not actually disagreeing.
- Does the Postscript End the Dispute?: This section explores the extent to which Hart's Postscript resolves the dispute. Dworkin, however, continues to argue that he and Hart hold opposing views on the same issues and are genuinely disagreeing. The section presents both perspectives on the nature of the disagreement.
Keywords
The main keywords and focus topics of the text include: legal positivism, legal theory, judicial reasoning, hard cases, legal principles, social sources, rule of recognition, separation thesis, descriptive theory, interpretative theory, semantic theory, disagreement, jurisprudence.
Frequently Asked Questions
What is the core of the dispute between Dworkin and Hart?
The dispute centers on the nature of legal positivism. Dworkin criticizes Hart’s view that law is identified solely through social sources, arguing it ignores moral principles used in "hard cases."
How does Hart respond to Dworkin's criticisms?
In his Postscript, Hart argues that they are engaged in different enterprises: he provides a descriptive, general theory of law, while Dworkin provides a normative, system-specific account.
What are "hard cases" in legal theory?
Hard cases are legal disputes where existing rules are unclear or insufficient. Dworkin argues that judges must then rely on legal principles rather than mere discretion.
What is the "Rule of Recognition"?
A central concept in Hart's theory, it is the social rule that specifies the criteria by which the validity of all other rules in a legal system is determined.
Does Hart's Postscript end the debate?
Not entirely. While Hart felt they were talking past each other, Dworkin maintained that they were genuinely disagreeing on the fundamental nature and interpretation of law.
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- Samar Dehghan (Autor:in), 2010, Legal Theories. The Dispute Between Dworkin and Hart, München, GRIN Verlag, https://www.grin.com/document/371880
