Dworkin critics Hart – Hart defends Dworkin’s critics

 Hart’s descriptive approach fails to take account of the viewpoint of the

participant of the considered legal system.

Hart’s writings do not preclude a non-participants external observer from describing

the ways in which participants external observer from describing the ways in which
participants view the law from such an internal point of view.

“The participant manifests their internal point of view in accepting the law as
providing guides for their conduct and standards of criticism”.

It is true that for this purpose the descriptive legal theorist must understand what it is
to adopt the internal point of view and in that limited sense he must be able to put
himself in the place of an insider.

 Hart’s thesis is defective in that the criteria according to which the rule of
recognition identifies what is law is, confined to plain facts of an historically
established pedigree (‘hard positivist’ -the criteria must be precisely identifiable. Soft
positivist – sources of law can be found from wider areas can include principles or
moral values).

Dworkin mistakenly regarded the existence and authority of the rule of recognition
where it depends on the fact of its acceptance by the courts and should have legal
validity.

First it ignores the acknowledgement that the rule of recognition may incorporate as
criteria of legal validity conformity with moral principles or substantive values.

Secondly there is nothing in Hart’s thesis to suggest that the plain fact criteria
provided by the rule of recognition must be solely matters of pedigree.

 Hart’s scheme fails to accommodate the fact that the purpose of a

jurisprudential system is to justify coercion
Hart’s theory makes no claim to identify the point or purpose of law. Law serves
beyond providing guides to human conduct and standard of criticism of such
conduct.

 Hart is being positivist that support of a legal system that provides reliable
public standards of conduct that can be identified by plain facts without depending on
moral arguments. And at the same time paint himself as soft positivist where he
asserts that there is connection between moral values/principles and law. Can’t
have both ways.

It is of course true that an important function of the rule of recognition is to promote

the certainty with which the law may be ascertained. Only if the certainty providing
function of the rule of recognition is treated as paramount and overriding could the
form of soft positivism that include among the criteria of law conformity with moral
principles or values which may be controversial be regarded as inconsistent.

 Harts’ treatment of social rule is defective

Hart admitted and made amendments.

 Dworkin’s charge that Hart’s concept of a legal system made up of rules is

defective in that it fails to take account of the existence and importance of
principles and that this omission is fatal to his thesis.

Hart contends that he does not see reason to accept a sharp distinction between
legal rules and legal principles, or the view that if a valid rule is applicable to a given
case it must, unlike a principle, always determine the outcome. The difference is a
matter of degree.

Hart acknowledges that non conclusive principles are an important feature of

adjudication and legal reasoning and it was not his intention by use of the word rule
to give the impression all or nothing stigma on a legal system. He had drawn
attention to a concept of variable legal standards which specified factors to be taken
into account and weighed against others in reaching a decision.

Therefore Hart rejects Dworkin’s contention that his theory does not have the
concept of principles. Therefore his theory remains unshaken however concede that
his theory touched principles only by passing.

 Hart’s main contention rules must be capable of being identified by a rule of

recognition and Dworkin’s contention is that principles cannot be identified by
rule of recognition, therefore the rule of recognition is defective and has to be
abandoned.

Dworkin contented principles are capable of being recognised by process of

constructive interpretation not by mechanical application of the rule of recognition.
Principles are identified as members of unique both best fits and justified the whole
institutional history of the settled law of a legal system.

As a response Hart relies on Dworkin’s pedigree theory as an authority trace to

justify the principles theory, principles authority can be identified by traced upwards
to an ultimate source which eventually will be authorised by approval by the courts.
Therefore, there is no significant difference between his rule of recognition and
Dworkin’s theory of pedigree in admission of principles. Dworkin’s interpretive test for
principles authority rests on acceptance by the courts. Dworkin’s notion of
constructive interpretation designed to show the law in the best moral light.

 The relationship between law and morality

Dworkin asserts that there must be at least prima facie moral ground for assertion of
the existence of legal rights and duties. Hart as a positivist contends that law and
morality as being separate, there can be legal rights and duties that have no moral
justification whatsoever.
  Can something be the law notwithstanding that if is morally iniquitous -
Dworkin

According to Dworkin in his holistic interpretive theory propositions of law are true
only if with other premises they follow from that set of principles which both best fit all
the settled law identified by reference to the social source of the law and provide the
best moral justification for it.
Hart asks where the social sources of the law sanction iniquity. The principles
derived from these may be iniquitous and lack any moral justifying force.Thus a law
may be identified without reference to morality, Dworkin’s theory leading to the same
justification as the same as positivist, if its rules are accepted and enforced by
officials, then the rules are law.

Dworkin agrees but he termed this situation as pre interpretative sense.

 The law is not incomplete, there are no gaps to be filled, so there is no

question of judges creating new laws to fill gaps.

Hart says las as being incomplete with gaps, when they appear, being filled by
judges exercising a discretion to create new law.

Dworkin justified his argument by explaining the three things that demonstrate that
law is there no need to make law just need to find it.

 The first concerns the language used by practitioners in the courts

 In a democracy only elected representatives and no official (judges) appointed
by the government have the power to create new law.
 A litigant should have their acts decided according to the lawas it exists at the
time that the acts are committed. No retrospective law.
The First
Concerns the language used by practitioners in the courts

The judges use the word they find the law is such and such. If he finds it, he must
find something that is already there.

Hart dismisses this as normal rhetoric of the judicial process, ritual languages used
by judges and this more to reflect general statements in the judicial process. In
cases in which no settled law applies judges make ‘new law’ in accordance with
principles of underpinning reasons recognized as already having a footing in the
existing law.

This does not eliminate the moment for judicial law making. In any hard cases
different principles supporting competing analogies may present themselves and a
judge will often have to choose between two by relying on his sense of what is best
and not on any already established order of priorities prescribed for him by law.

Since there is no hierarchy order scheme on principles to determine, judges have to

‘choose’ between two competing principles and thus judges ‘create’ law.

The Second
Only elected representatives have the power to create the law

Dworkin contends that endorse a form of law making that is undemocratic and unjust
when a government official has the power and means to make law.

Hart replies that to deal with disputes that law fails to regulate it is a necessary price
to pay if compared to an alternative which is referring to the legislature each time
such disputes occur. And also, the ultimate control will normally lie with a legislature
than can repeal or amend a judge’s decision.
The Third
No retrospective law.

Hart maintains that judges decide hard cases in that it would entail law being made
retrospectively. Not ex post facto at a later date.
Hart withdrew the contention since it is irrelevant to hard cases since hard cases is a
state of the law is not known therefore there is no expectation to rest on.

The Jigsaw Puzzle

Dworkin’s adjudication is how judge find himself to justify the coercion he is causing
another man.

My exercise of the power conferred on me by the state, the power to coerce this
person, can only be justified if I get things right.

There is no settled law on the matter, principles pull in the opposite direction. So
what is the law?

His decision should have taken into account everything that goes to make up this
society - its history, its multifarious religions and racial origins, its traditions, its form
of economy, its constitution, its notions of justice and the whole mass of law that
already exist. Decision would make sense in the light of all this, decision would fit in
with everything else and would add cohesion to the rest of the law.

History
Religions
Racial
Tradition
Economy
Constitution
Notion of justice
Law that already exist

Dworkin compares the analogy hard Case that occurs to a jigsaw puzzle and he
contends that a judge’s job in legal system is to find the right missing piece of puzzle
to complete the jigsaw puzzle If he finds the right decision that fit the puzzle, it would
strengthen the puzzle and it would stay together.

To find the right decision he has to see what are the pieces that are already in the
place all around it. Therefore, the decision should fit in with everything else by
making sense as being consolidated with everything else there already is.

The judge's job is not to go and cut and make a piece in the shape that he likes that
would fit into the puzzle. If he forced, it in it wouldn't fit the puzzle and would have
weaken it.

The Hercules Judge must find the piece that already exists on the table, it is already
there in front of him, all he has to do is find it.

Dworkin v Hart

Dworkin. A judge's weakness would lie in his failure to provide a satisfactory answer
to the question whether the duty of constructive interpretation applies irrespective of
the evil of the regime of which judges find themselves a part.

The judge ought to decide Hard cases in fact in his own society, best of them
consciously or unconsciously to the coercion to be justified.

Hart. The Flaw of his contention is in his assertion that in all legal systems, at all
times in history in which legal systems have existed, hard cases are decided by
judges having the discretion that he ascribes (attribute) to them. Judges may decide
hard cases by a variety of means, not only by Hartian discretions.

Dworkin telling us what ought to be if coercion is justified.

Hart is telling what is in any legal system.