Electronic copy of this paper is available at: http://ssrn.com/abstract=968657
cogency, with some arguing that Hart was wrong to reply to Dworkin in the way thathe did
and others countering that such criticisms of Hart are unfounded.
In this essay, I will not take sides in this controversy over Hart’s reply toDworkin. I will be interested, rather, in a more preliminary matter, namely, inattempting to set out the basic subject matter of the debate. My chief concern,therefore, will be to identify the core issue around which the Hart-Dworkin debate isorganized. Is the debate, for example, about whether the law contains principles
rules? Or does it concern whether judges have discretion in hard cases? Is itabout the proper way to interpret legal texts in the American legal system? Or is itabout the very possibility of conceptual jurisprudence?To pinpoint the core of the debate, I will examine at some length the mainargumentative strategies employed by each side to advance their cause. Thus, I willbegin by exploring Dworkin’s characterization and critique of Hart’s positivism andwill then follow up by presenting the rebuttals offered by Hart and his followers. Myhope is that by laying bear the basic structure of the debate, we will be able not onlyto explain why the jurisprudential community has been fixated on this controversy,
3 See Scott J. Shapiro, “On Hart’s Way Out,” in
Hart’s Postscript: Essays on the Postscript to the
Concept of Law
, ed. J. Coleman (Oxford: Oxford University Press, 2001); “Law, Morality and theGuidance of Conduct,”
6 (2000): 127–70; Jules L. Coleman, “Incorporationism,Conventionality and the Practical Difference Thesis,” in
.4 See Kenneth Einar Himma, “H. L. A. Hart and the Practical Difference Thesis,”
6(2000): 1–43; W. J. Waluchow, “Authority and the Practical Difference Thesis,”
6(2000): 45–81; Matthew Kramer, “How Morality Can Enter the Law,”
6 (2000): 83–108; Matthew Kramer, “Throwing Light on the Role that Moral Principles Play in the Law,”
8 (2002): 115–43.