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
HART’S POSTSCRIPT
DOES THE POSTSCRIPT END THE DISPUTE?
ARE THEY REALLY ENGAGED IN DIFFERENT ENTERPRISES?
CONCLUSION
Objectives and Topics
This paper examines the ongoing intellectual debate between Ronald Dworkin and H.L.A. Hart regarding the nature of legal theory and the validity of legal positivism. It specifically explores Dworkin’s critiques of Hart, Hart’s subsequent response in his Postscript, and the broader academic discussion on whether these two scholars were fundamentally addressing different research questions.
- The divergence between Dworkin’s interpretative approach and Hart’s descriptive legal positivism.
- Dworkin’s critique of the 'sources thesis' and the role of principles in hard cases.
- Hart’s defense of the methodology of legal positivism.
- The scholarly debate over whether Hart and Dworkin were truly engaged in a substantive dispute or merely 'talking past each other'.
Excerpt from the Book
DWORKIN’S ATTACK ON HART
It is undoubtedly the case that early in his work, Ronald Dworkin, gaining prominence, was making trouble with Hart. He specifically stated that he wanted to make “...a general attack on positivism,” using “H. L. A. Hart’s version as a target...” Dworkin’s core idea in this attack is based on his picture of adjudication which looks radically different from Hart’s. His idea is that the legal positivism method of identifying the law exclusively by social sources is wholly inadequate in capturing the true nature of legal reasoning and judicial judgement in so-called ‘hard cases’ at the appeal court level.
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”; for Dworkin, incorporating such principles is essential in a theory of law.
Summary of Chapters
INTRODUCTION: This chapter introduces the ongoing debate between Ronald Dworkin and H.L.A. Hart and outlines the scope of the paper, including Dworkin’s critiques and Hart’s eventual response.
DWORKIN’S ATTACK ON HART: This section details Dworkin’s foundational arguments against legal positivism as presented in his early work and his later shift toward an interpretative view of law in Law’s Empire.
HART’S POSTSCRIPT: This chapter analyzes Hart’s response to his critics, where he asserts that his work and Dworkin’s were intended as distinct, non-conflicting projects.
DOES THE POSTSCRIPT END THE DISPUTE?: This section discusses the reception of Hart’s Postscript and Dworkin’s insistence that their disagreement over the nature of legal theory remains substantive.
ARE THEY REALLY ENGAGED IN DIFFERENT ENTERPRISES?: This chapter explores the academic debate on whether Hart and Dworkin were addressing different questions or if they were engaged in a fundamental conflict over the nature of law.
CONCLUSION: This chapter synthesizes the discussion, arguing that while Dworkin’s work presents a challenge to positivism, Hart’s view of their projects as fundamentally different remains highly plausible.
Keywords
Legal Positivism, Dworkin, Hart, Jurisprudence, Adjudication, Legal Principles, Hard Cases, Law as Integrity, Sources Thesis, Separation Thesis, Constructive Interpretation, Legal Theory, Philosophy of Law
Frequently Asked Questions
What is the fundamental nature of the debate between Hart and Dworkin?
The debate primarily concerns whether legal theory should be a descriptive account of social facts (as Hart maintains) or an interpretative endeavor rooted in moral and ethical claims (as Dworkin argues).
What are the core thematic fields covered in this work?
The work covers legal philosophy, the methodology of jurisprudence, the role of moral principles in judicial adjudication, and the compatibility of descriptive positivism with normative legal theory.
What is the primary research question of this study?
The study asks whether the disagreements between Dworkin and Hart constitute a genuine, irreconcilable conflict or if they are essentially performing different intellectual tasks.
Which scientific methodology is employed in this research?
The paper utilizes a qualitative analysis of academic literature, dissecting the primary works of Dworkin and Hart and examining subsequent scholarly commentary.
What does the main body of the work focus on?
It focuses on the progression of Dworkin's attacks, the publication of Hart's Postscript, and the subsequent efforts by legal scholars to categorize the relationship between these two theories.
Which keywords best characterize this publication?
Key terms include Legal Positivism, Jurisprudence, Law as Integrity, and the Hart-Dworkin debate.
How does Dworkin define the role of 'principles' in his critique?
Dworkin argues that legal principles, which reflect moral standards, are essential for adjudication in hard cases, making the positivist focus on social sources alone insufficient.
Why did Hart claim in his Postscript that he and Dworkin were not in conflict?
Hart argued that his own theory was a general, descriptive account of law, while Dworkin's theory was specifically addressed to the Anglo-American legal culture, implying they were doing different jobs.
What is the author's final conclusion regarding the dispute?
The author concludes that Dworkin's arguments do not ultimately undermine legal positivism and that the academic focus on this 'dispute' has become excessive given that the two theorists may have been pursuing fundamentally different projects.
- Quote paper
- Samar Dehghan (Author), 2010, Legal Theories. The Dispute Between Dworkin and Hart, Munich, GRIN Verlag, https://www.hausarbeiten.de/document/371880
