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09 Hart's postscript

Hart critiques Dworkin's interpretation of his legal theories, particularly regarding the nature of legal rules, the role of discretion in judicial decision-making, and the relationship between law and morality. He argues that his theory is descriptive and can coexist with Dworkin's evaluative approach, while also clarifying misconceptions about legal positivism and the rule of recognition. Hart emphasizes the importance of pedigree in law and maintains that legal rights can exist independently of moral rights.

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09 Hart's postscript

Hart critiques Dworkin's interpretation of his legal theories, particularly regarding the nature of legal rules, the role of discretion in judicial decision-making, and the relationship between law and morality. He argues that his theory is descriptive and can coexist with Dworkin's evaluative approach, while also clarifying misconceptions about legal positivism and the rule of recognition. Hart emphasizes the importance of pedigree in law and maintains that legal rights can exist independently of moral rights.

Uploaded by

Osamah Bakhsh
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd
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Hart’s response to Dworkin

Dworkin attributes 4 doctrines to Hart:


1. that law consists of “rules”
2. that legal rules are identified by a “rule of recognition” – a test that does
not involve their content, but their pedigree.
3. that where a rule does not control a case, judges have discretion
4. in those cases where judges have discretion, neither party has a pre-
existing legal right to prevail

Hart’s Postscript was published after his death.


It is unfinished; the only critic whom he addressed was Dworkin.
Some of the criticisms of Dworkin are based on criticisms that Dworkin
made in a later book, Law’s Empire.
Hart had struggled with the Postscript’s writing for many years.
What comes through, I think, is a sense of befuddlement about what views
Dworkin attributed to him.

The Nature of Legal Theory


Hart argues that his theory is descriptive and general and that it does not
have to conflict with Dworkin’s evaluative and justificatory conception of
legal theory.

On page 242, Hart argues that the interpreter can describe the insider’s
point of view without sharing it.
“Description may still be description, even when what is described is an
evaluation.” 244
For example, I can describe the beliefs of a religious community of which I
am not a member without actually believing what they believe.
Dworkin, Hart claims, denies this.

The Nature of Legal Positivism


Positivism as a Semantic Theory
Dworkin claims that Hart believes that the truth of legal statements is a
matter of plain fact.
If this is the case, then, a plain-fact positivist like Hart would have to
claim that all legal disagreements are a matter of the parties talking past
one another. There disagreements are pointless.
This is what Dworkin calls his “semantic sting” argument.

Hart responds that he simply does not make this claim about the meaning of
“law.” Dworkin has confused the meaning of a term with its application.
The meaning of law, like the meaning of justice, may be uncontroversial but
its application most certainly may be controversial.
Hart also points out that he is not a plain-fact positivist; he does admit
pedigree, but he also says that the rule of recognition can also include
principles of justice or substantive moral values (This is equivalent to a
position that is sometimes called “inclusive positivism.”)

Positivism as an Interpretive Theory


Another version of Hart’s theory, according to Dworkin, is that the plain
facts are not fixed by the vocabulary of law, but by a conviction shared by
lawyers and judges.

Hart denies this and claims that, for Dworkin, the point or purpose of law
and legal practice is to justify coercion.
Hart claims that law has no more specific purpose other than providing a
guide to human conduct and standards of criticism for such conduct.

Soft Positivism
“Dworkin’s most fundamental criticism is that there is a deep inconsistency
between soft positivism and the general positivist ‘picture’ of law as
essentially concerned to provide reliable public standards of conduct which
can be identified with certainty as matters of plain fact without dependence
on controversial moral arguments.” (page 251)

Hart, however, replies that he always acknowledged a “penumbra” of


uncertainty.

Also, Dworkin denies that the law sometimes can be fundamentally


incomplete and he denies that on those occasions judicial discretion is
necessary.
His theory claims that a judge must find the best fit for the legal system’s
institutional history and also must provide the best moral justification for it.
A soft positivist, like Hart, cannot say this because it violates the positivist
commitment to not resort to controversial philosophical theories about the
status of moral judgments. This would detract from the descriptive aspect of
positivism.

The Nature of Rules

The Practice Theory of Rules


“The external point of view of social rules is that of an observer of their
practice, and the internal point of view is that of a participant in such
practice who accepts the rules as guides to conduct and as standards of
criticism.” Page 255

Dworkin argues that Hart has confused these two things:


1. the consensus of independent convention manifested in a group’s
conventional rules 2. the consensus of independent conviction manifested
in the concurrent practices of a group

2
Hart admits that Dworkin is right to point out that he did not make this
distinction.
He says that he now thinks that the practice theory of rules does not
provide an adequate account of morals.

The practice theory of rules does, however, still account for the rule of
recognition.
Dworkin argues that even simple conventional rules have a normative
character and that this character cannot be explained by reference to the
kind of factual criteria used by Hart.
A certain normative state of affairs must be present. Hart thinks that this is
far too strong and points out that it is easy for us to understand morally
iniquitous legal rules.

Rules and Principles


In this section, Hart replies specifically to the argument that Dworkin made
in “The Model of Rules.” (259)
Recall that Dworkin claimed that Hart’s theory contains only ‘all-or-nothing’
rules and that it ignores legal principles.

If Hart allowed for legal principles, he would lose the 3 main claims of
positivism:
1. that criteria exist within the rule of recognition accepted in the practice
of the courts, 2. that the courts sometimes have discretion
3. that there is a necessary distinction between law and morality.
These are the core views of positivism.

Hart argues that he can admit principles without such momentous


consequences upon his theory.
He does admit that he spent too little time in the book discussing
adjudication.
Relative to rules, principles are broad, general, and unspecific.
Principles refer specifically to some purpose, goal, entitlement, or value
and, as such, can help justify rules.
Dworkin claims that principles are non-conclusive; they are taken into
account and point the court in one direction or another.
Dworkin’s law, therefore, has all-or-nothing rules and non-conclusive
principles. Dworkin sometimes claims that principles can win out over
rules. If this is the case, how can they be “all-or-nothing?”

Principles and the Rule of Recognition


Pedigree and Interpretation
Hercules is Dworkin’s name for the ideal judge.
He represents an holistic system-wide approach to jurisprudence and he
seeks the best fit and best justification of institutional history.

3
Hart claims however, that many legal systems owe their status to matters of
pedigree. This leads Dworkin to two mistakes: that legal principles cannot
be identified by their pedigree and that a rule of recognition can only
provide “pedigree” criteria, not “principle” criteria.
If Dworkin’s interpretive criterion is the only way to find principles; he
needs a rule of recognition underlying them.
The use of the interpretive criterion presupposes a settled area of law which
the principle fits and helps to justify; this can only be the case if the rule of
recognition has specified the sources of law and the relationships of
superiority and subordination holding between them.
Hart argues that the rule of recognition is a “conventional form of judicial
consensus.”

Law and Morality


Rights and Duties
Dworkin thinks that there cannot be legal rights where there are not moral
rights. Hart strongly disagrees.

The Identification of the Law


Hart says that “the existence and content of the law can be identified by
reference to the social sources of the law without reference to morality
except where the law thus identified has itself incorporated moral criteria
for the identification of the law.”

Dworkin’s holistic interpretive theory requires a search for moral


justification. But if there is a morally iniquitous law, the least iniquitous
principles can have no justifying force. Therefore, what the theory comes to
is no different than positivism.
One other route that Dworkin takes is his distinction between interpretive
and preinterpretive law. Preinterpretive law may be iniquitous; this Hart
argues concedes the case to descriptive positivism.
At some points, Dworkin argues that the prima-facie moral force of rights
must flow from a general interpretive theory of the law.
In Law’s Empire, however, he backs away from this (105 – 106).

Judicial Discretion
Hart: Law is in part indeterminate and incomplete; thus, discretion is
necessary.
Dworkin denies this and instead claims that what is actually incomplete is
the positivist’s picture of the law.
Hart claims that the law-making powers of judges are interstitial.

Dworkin argues that this is not the case for three reasons.

4
1. This is a false description of the judicial process and what courts do in
hard cases; he proves this by looking at legal language and the self-
perception (phenomenology) of judges.
Judges, according to Dworkin, never see themselves as making the
law. They never see themselves as quasi-legislatures.

Still, Hart says judicial law-making does occur.


Even though principles are used in drawing analogies, law is made: “since
in any hard case different principles supporting competing analogies may
present themselves and a judge will often have to choose between them,
relying, like a conscientious legislator, on his sense of what is best and not
on any already established order of priorities prescribed for him by law.”
(275)

2. Dworkin also claims that Hart’s account of discretion is undemocratic


because it grants such great power to judges.

Hart says this may be necessary to resolve conflict outside of the


legislature. Also, we are used to executives taking some law-making power,
so the blurring of the separation of powers has already occurred.

3. Dworkin claims that this is ex post fact law-making and that it is unjust.

Hart responds that this is irrelevant in hard cases because in these cases
there is no known state of clear, established law to justify expectations
anyway.

With that point, Hart’s postscript stops.


I know that it is hard to keep the positions straight, but I urge all of you to
read carefully and puzzle out the debate for yourselves.

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