You are on page 1of 2

Kevin Brown/PHIL 105/Paper 3/6 Nov.

2015
The primary theories of law that Hart is opposed to is command theories of law, not
only because this view of law is not specific enough to what a command is, but also because
there are many laws that do not fit the mold of being a command. The command theory is meant
to describe laws as authoritative imperatives, ones that often take the form of a coercive order. In
the view of the command theory, the law creates certain obligations and rules for citizens, and
these rules and obligations often take the form of an order backed by a threat (18-20). Dworkin
opposes the view that the law and what it mandates can be discerned through the speakers
meaning or plain-fact theories of law. The speakers meaning theory attempts to discover what
a legislator intended for a statute to mean when the meaning of the statute itself is not clear;
stated another way, it tries to learn the state of mind of the legislators (315). This theory is often
also applied in the ways judges may try to gauge the intentions of the framers of the Constitution
and whether or not they will take the document at face-value or apply a more liberal
interpretation of it (359).
Harts view of the law is opposed to command theories of law because he believes those
theories to be too narrow to explain the law in its entirety. First of all, not all commands take the
same form of an order, which is the primary form of a command that the theory employs (18-19).
Secondly, there are all several laws which do not take the form of a command of all (35). Hart
primarily maps out these differences in types of laws in his explanation of primary and secondary
rules. The primary rules are what the law stipulates and can most readily be conceived as orders
or commands; the secondary rules are what modifies or creates the conditions of application for
the primary rules, and are not as easy to characterize as orders or commands (81). Hart also
objects to the command view on the basis of citizens convergent habits. If the majority of
peoples habits converge with what the law states, can we truly consider the law to still be a
command? (55-57). A final aspect of Harts view of law that is important is what he terms the
open texture of law. Hart holds the view that the language of the law is always vague and
indeterminate so that it can be applied more broadly and readily to any situation; furthermore, it
also allows for multiple interpretations (128-130).

Kevin Brown/PHIL 105/Paper 3/6 Nov. 2015


Dworkins view of the law disregards the speakers meaning theory in favor of the
convictions of the legislators and framers. In Dworkins opinion, we cannot look to what a
legislator votes or communicates to try and discern their intentions, because their intentions and
their votes may not always accurately reflect what they in fact want; furthermore, it is not always
possible to figure out what a legislator meant through their vote. Instead, judges should rely on
the convictions of the legislators or framers when attempting to suss through the ambiguities of
law; Dworkin believes convictions are the right thing for judges to rely on because they are a
more static indicator of what the framers or legislators actually wanted through a statute or the
Constitution (333-337). It is the judges responsibilities to determine what the law stipulates by
looking at its history and the convictions behind the legislators and framers.
The score-keeping analogy made by Hart puts the judge in the role of the referee or
score-keeper. In this role, the judge is able to make calls on what the rules of the game permit
and does not permit; in this way, the judge has certain powers to control the primary rules of the
game because he has been granted these powers through the secondary rules. This analogy helps
to make Harts view of primary and secondary rules more clear, but also his view of the open
texture of law; Hart also emphasizes that it is possible that the judge may make a bad call or
interpretation of a law. Dworkins analogy is the chain-novel and this analogy is meant to draw a
comparison between the law and a book that is written by several authors over a long period of
time. This analogy helps to clarify Dworkins point about the interpretive authority of judges;
judges do not simply apply the law, but instead have to make the law fit within a history and
context of previous applications of the law.