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1. INTRODUCTION
1.1

Hart-Dworkin Debate A Contextual Outline

The field of law will always and forever owe an enormous debt to H.L.A. Hart.
His views ignited furious debate within the legal profession, even before his booklength treatment of the law was released. The Hart-Fuller debate, a predecessor to
the topic of this thesis, percolated in the pages of the Harvard Law Review in the
late 1950s. The disagreement was over the connection between the law and
morality. Hart thought that there was a clear difference between what the law is and
what it ought to be. Morality is one thing, legality another thing altogether. Lon
Fuller passionately contended that morality was intimately related to the law, and
was in fact the source of the laws binding power. It was a debate with ancient
roots, and would not be settled with a pair of jousting law review articles.
When Hart published The Concept of Law in 1961, it transformed the way lawyers
and philosophers talked about the law. He took important insights from the field of
linguistic philosophy drawing on his close friendship with the influential
language philosopher, J.L. Austin and used them to analyze the way of the usage
legal terms. The result was the most sophisticated picture of the law that the legal
world had yet encountered. Hart corrected important oversights and simplifications
from John Austins The Province of Jurisprudence Determined, the first work
expressly founded upon legal positivism. He showed that legal positivism did not
have to rest on the concise but far-fetched notion that the law is merely the
command of the sovereign that is backed by sanction. The grip which Harts book
and Hart himself had on the legal world would lead his most important critic to say
of him, in legal philosophy, constructive thought must start with a consideration
of his views.1. That critic is Ronald Dworkin. Dworkin saw in Harts work serious
oversights and simplifications. Ultimately, he found the flaws in Harts formulation
of the entire project of legal positivism. He understood the vast improvement
which The Concept of Law represented over previous versions of legal positivism,

1 Dworkin, Ronald. Taking Rights Seriously. Cambridge: Harvard University Press, 1978, p. 16

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but he concluded that any sort of positivism was not enough to completely and
accurately describe the law.
The debate is organized around one of the most profound issues in the philosophy
of law, namely, the relation between legality and morality. Dworkins basic strategy
throughout the course of the debate has been to argue that, in one form or another,
legality is ultimately determined not by social facts alone, but by moral facts as
well. In other words, the existence and content of positive law is, in the final
analysis, governed by the existence and content of the moral law. This contention,
therefore, directly challenges and threatens to undermine the positivist picture
about the nature of law, in which legality is never determined by morality but
rather by social practice. For if judges must consider what morality requires in
order to decide what the law requires, social facts alone cannot determine the
content of the law. As one might expect, the response by Hart and his followers has
been to argue that this dependence of legality on morality is either merely apparent
or does not, in fact, undermine the social foundations of law and legal systems.

1.2

Objectives
Set in the above perspective or background, the broad objective of the study is to:

1. To study the historical background and believes of the debating philosophers.

2. To analyse the debate and draw out conclusions.

1.3

Scope of the study

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The present project is an attempt to analyze the Hart-Dworkin debate and what it
entails. It also directs its focus towards the major sets of the ideas and how they
contradict each other and concludes the study thusly.

1.4

Methodology of the study

This project is based on a non-doctrinal research methodology. Relevant points
along with some examples have been provided to prove some points in the topic.
Accumulation of the information on the topic includes various secondary sources
such as books, articles, e-articles, etc. The matter from these sources has been
complied and analysed to understand the topic in a better way.

2.

BRIEF HISTORY

2.1 HART (1907 1992)

Herbert Lionel Adolphus Hart usually cited as H. L. A. Hart, was a British legal
philosopher, and a major figure in political and legal philosophy. He was Professor of
Jurisprudence at Oxford University and the Principal of Brasenose College, Oxford.
His most famous work is The Concept of Law (1961; 3rd edition, 2012). He is
considered one of the world's foremost legal philosophers in the twentieth century,
alongside Hans Kelsen.
Although Hart was a positivist, he did acknowledge that it was a far cry from the
largely coercive picture of law painted by his predecessors. He believed that law is a
social phenomenon and can only be explained by reference to the actual social

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practices of a community. Hart says there is a necessity for rules that protect property
and persons, but despite this view he did not say that law is derived from morals or
that there are any conceptual relationship between the two.
Hart wanted to advance legal theory by providing an analysis of the distinctive
structure of legal systems and a better understanding of the differences between law,
morality and coercion.
Hart tells us within his book The Concept of Law, there are certain matters that
influence human behaviour and he divides these into two categories, social habits and
social rules. Hart maintains that a legal system, in contrast to a set of unrelated laws,
consists of a union of primary rules of obligation and secondary rules of which the
most important he believes is the rule of recognition. Primary rules are ones that
actually tell people to do things or not to do something, they lay down duties.
Secondary rules are concerned with the primary rules in that they lay down the ways
in which primary rules may be introduced, can be varied or can be abandoned.
In developing his theory of a legal system, Hart rejects both the strictly formalist view
and the rule-scepticism movement and in doing so he strikes a compromise, he
accepts that laws are indeed rules, but also recognises that for a judge to arrive at a
decision, they have a wide discretion and he is driven to this conclusion by virtue of
the rule of recognition.

2.2 DWORKIN (1931 2013)

Ronald Myles Dworkin was a Jewish-American philosopher, jurist, and scholar

of United States constitutional law. His theory of law as integrity as presented in his
book titled Law's Empire, in which judges interpret the law in terms of consistent
moral principles, especially justice and fairness, is among the most influential
contemporary theories about the nature of law. Dworkin advocated a "moral reading"
of the United States Constitution, and an interpretivist approach to law and morality.
He was a frequent commentator on contemporary political and legal issues,

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particularly those concerning the Supreme Court of the United States, often in the
pages of The New York Review of Books.
Dworkin as a critic of HLA Hart's legal positivism has been summarized by
the Stanford Encyclopedia which has stated that:
Dworkin, as positivism's most significant critic, rejects the positivist theory on every
conceivable level. Dworkin denies that there can be any general theory of the
existence and content of law; he denies that local theories of particular legal systems
can identify law without recourse to its moral merits, and he rejects the whole
institutional focus of positivism. A theory of law is for Dworkin a theory of how cases
ought to be decided and it begins, not with an account of the political organization of
a legal system, but with an abstract ideal regulating the conditions under which
governments may use coercive force over their subjects.2
Dworkin is most famous for his critique of Hart's legal positivism; he sets forth the
fullest statement of his critique in his book Law's Empire. Dworkin's theory is
'interpretive': the law is whatever follows from a constructive interpretation of the
institutional history of the legal system.
Dworkin argues that moral principles that people hold dear are often wrong, even to
the extent that certain crimes are acceptable if one's principles are skewed enough. To
discover and apply these principles, courts interpret the legal data (legislation, cases
etc.) with a view to articulating an interpretation that best explains and justifies past
legal practice. All interpretation must follow, Dworkin argues, from the notion of "law
as integrity" to make sense.
Dworkins opinion is demonstrated by the use of his interpretive theory and that is
once the law is identified (pre-interpretive stage), he states that it should then be
justified (interpretive stage), for example a crime of burglary is justified by the moral
need for the person to protect his/her property. He states that a legal theory does not
merely identify the rules of the legal system, but it interprets them and allows them to
be evaluated.

2 "Legal Positivism (Stanford Encyclopedia of Philosophy)". Plato.stanford.edu. 2003-01-03. Retrieved 2013-02-14.

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Dworkin moves away from positivism's separation of law and morality, since
constructive interpretation implicates moral judgments in every decision about what
the law is.

3. HART DWORKIN DEBATE AN ANALYSIS

A starting point of Dworkins philosophy of law might sensibly be regarded by
some as an attack on Harts model of rules. For Hart has an understanding of what the
law is and what the law should be, Dworkin says this is unacceptable as law consists
not merely of rules, but a court when it has to decide on a hard case will draw on
moral or political standards, principles and policies in order to reach the appropriate
decision.
Dworkins criticism concerning Harts theory of legal positivism has been seen in
many articles since its appearance in Dworkins The Model of Rules I. Dworkin
argues; the continually changing nature of law means that it should be analysed in
terms of justice, legal principles and morals, not just plain facts.
The sequence of the debate has been Harts Concept of Law, published in 1961, then it
was Dworkins criticism of Harts thesis Laws Empire, published in 1986. Harts
response to Dworkin is contained within the Postscript of the second edition Concept
of Law, which was published in 1994. The principle difference between the two
writers is that Hart, at the point where the law is incomplete, in that it provides no
answer to a question, then the judge can exercise his discretion in reaching a solution
to fill the gap, thereby creating new law. Dworkin believes that law never runs out and
the answer is always to be found if a judge applies his mind to the matter fully.
There are a number of core issues around the debate, for instance, does the law
contain principles as well as rules, or does it concern whether judges have discretion
in hard cases. In The Model of Rules I, Dworkin argues that legal positivism, so
characterized, cannot account for the manifest existence of legal principles. Harts
theory, or any such positivistic account, is a model of and for a system of rules
3 Ronald Dworkin, The Model of Rules I,

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and, as such, must be rejected. Dworkin claimed that the dispute between himself or
rather his ideas and Hart was whether the law itself is a model of rules, even though
Hart never actually claimed that law was simply a made of just rules, as in his
postscript he claimed that the use of the word rule did not claim that the legal system
comprised of an all or nothing standard.
Some of the main issues the debate dealt with were
1) Judicial Discretion
Harts doctrine concerning judicial discretion is not predicated on a model of
rules, but rests on a picture of law, that privileges social acts of authoritative
guidance. A legal rule for Hart is a standard that has been identified and selected
as binding on the specific society, by a social act, whether that is from an
individual directive, a judicial decision, legislative enactment or a social custom.
The debate does not just concern issues as to the existence of judicial discretion,
the foundations of rules, the function of law itself and the nature of any legal
interference are other main topics, as well as the subject concerning law and
morality. The critique offered by Dworkin on legal positivism in 1967 4 differs
from what he wrote in 19865, therefore the debate itself was seen as an evolving
issue.
Dworkin begins his critique by arguing that the judicial discretion is implausible
insofar as it ignores the many cases where judges regard themselves as bound by
law even though no rules are clearly applicable. In Henningsen v. Bloomfield
Motors6, for example, the court was asked to hold an automobile maker liable for
injuries sustained as the result of defective manufacturing despite the fact that the
injured plaintiff signed a waiver of liability.7 The court could find no explicit rule
4 Ibid.
5 Ronald Dworkin, Laws Empire:
6 32 N.J. 358, 161 A.2d 69 (N.J. 1960)
7 Ibid. discussed in Dworkin, Taking Rights Seriously, 256.

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that would authorize it to ignore such a waiver but nevertheless held for the
plaintiff. In support of its decision it cited a number of legal principles. These
principles, the court reasoned, were of such great importance that they outweighed
contrary principles, such as those supporting the freedom to contract, which
militated in favor of enforcing the waiver.
According to Dworkin, Henningsen was not an aberration. Once we identify
legal principles as separate sorts of standards, different from legal rules, we are
suddenly aware of them all around us. Law teachers teach them, law books cite
them, legal historians celebrate them.8 In fact, legal principles are most
conspicuously at play in hard cases, where they guide and constrain judicial
decision making in the absence of legal rules. Legal positivism ignores the
existence of these norms precisely because it holds, via the Discretion Thesis, that
cases such as Henningsen are not governed by law. Legal positivism, in other
words, is a model of rules only.
Dworkin is careful to point out that there are several weak senses in which
judges must exercise discretion even in hard cases. Judges must exercise
discretion in the sense that they are required to use their judgment in reasoning
from legal principles to legal conclusions. At least sometimes as well, they have
discretion in the sense that they have the final say in a particular case. Dworkin
denies, however, that judges must exercise what he calls strong discretion,
namely, the idea that they must look beyond the law and apply extralegal
standards to resolve the case at hand. Once one recognizes the existence of legal
principles, Dworkin claims, it becomes clear that judges are bound by legal
standards even in hard cases.
Judicial discretion is inevitable, according to Hart, because it is impossible for
social acts to pick out standards that resolve every conceivable question. Contrary
to Dworkins interpretation, Hart never embraced the model of rules, either
explicitly or implicitly.

8 Dworkin, Model of Rules I, 28.

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2) Rule of Recognition
The Hart/Dworkin debate begins with Dworkin's 1967 paper The Model of
Rules, where Dworkin rejects to Hart four doctrines: that law consists of rules;
that legal rules are identified via a rule of recognition, by tests with their
pedigree not content; that where a rule does not control a case, judges have
discretion; and that in those cases where judges have discretion, neither party has a
pre-existing legal right to prevail.
From Hart we gain a clearer understanding of law by maintaining, for the purpose
of analysis, a separation between the law as it is the law as it ought to be. To
Dworkin this is unacceptable and, indeed, impossible. This is because law consists
not merely of rules but also of what Dworkin called non-rule standards. There is
no rule of recognition which distinguishes between legal and moral principles.
Dworkin opines that rules are all or nothing standards and they cannot conflict
because valid rules are conclusive reasons for action. If two rules conflict, then
one of them cannot be valid. By contrast, principles do not dispose of the cases to
which they apply and they are not necessary conclusive even they support to
various actions. Valid principles, therefore, may conflict and typically do.
Dworkin criticises Harts rule of recognition as he believes that it is not possible to
claim that there is criteria that determines what is law and what it is not. This can
be seen when there is a disagreement amongst judges within case law. Dworkins
argument is that Harts rule of recognition is based on content, due to its source
and linguistic merits, rather than because of what it actually aims to achieve. He
states there is no rule of recognition which distinguishes between legal and moral
principles and a judge in a hard case must therefore appeal to principles, which
include his own conception of what is the best interpretation of the network of
political structures and decisions within his community.
Hart follows an approach based on understanding, not merely on the actions that
occur, but also in the meanings those actions have to the participants in the
practices being studied, but without making any moral judgements, therefore his
account is descriptive as it is morally neutral.

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Dworkin explains his theory by reference to hard cases that arise in the court and
which have a large degree of uncertainty as to the outcome, owing to the fact that
there is no pre-existing rule governing the relevant case. A case showing this is
Riggs v Palmer9 in which a grandson murdered is grandfather in order to benefit
under the will. Since the will itself was valid, there was at the time no law to say
the grandson could not inherit, but the court held that because of the legal principle
saying that no-one should be permitted to profit from his own fraud or take
advantage of his own wrong, the grandson was therefore disbarred from the
inheritance.
Dworkin uses the above case to illustrate his believe that Hart has forgotten the
importance of principles and in many cases the judges regard themselves as bound
by the laws of the land, even though there is no rule that is clearly applicable to the
case in question. Hart within his postscript claims this is an example of a principle
winning in competition of a rule, but he states that this shows that rules themselves
do not have an all or nothing character as they can be brought into conflict with
principles that may outweigh them.
Dworkin claims that law is concerned not only with what has been established, and
the rules relating to the laws themselves, but also with principles. He states that
unlike rules, principles have the dimension of weight or importance or morality and
when two principles lead to different conclusions, the judge must take into account
the relative weight of each. Where rules do not have this, if two rules conflict, then
only one can be valid and which one, will be decided on another rule, which may
be the rule laid down by a higher court.
For Hart the rule of recognition is a social rule and therefore established by the
conduct of those who also accept the rule as a justification for disparaging those
who fail to observe it. Dworkin claims that this feature within Harts theory
commits him to the proposition that the rule of recognition may be uncertain
within some particular points of the law itself. He also argues that if judges are
divided about what they must do, if subsequent parliaments try to repeal an
entrenched rule, then he states that no rule can govern any decision. Hart denies
9 115 N.Y. 506 (1889)

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this and regards The Concept of Law as an explanation and description of the
distinguishing characteristics of law from other systems of social rules, with the
main ingredient being his rule of recognition.
For Dworkin, Harts rule of recognition cannot include substantive moral standards
among its criteria of law, this has been denied and has been stated as being
misunderstood and arises mainly through Dworkin overlooking the fact that, in
both hard and easy cases, judges share a high degree of common understanding
about the criteria that determines whether a rule is actually a legal rule or not.

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4. CONCLUSION

The moment now seems opportune to step back and ask whether the
Hart/Dworkin debate deserves to play the same organizing role in the
jurisprudential curriculum of the twenty-first century that it played at the close of
the twentieth. I am inclined to answer that question in the negative, though not, to
be sure, because I can envision a jurisprudential future without Harts masterful
work at its centre. Rather, it seems to me and, I venture, many others by now
that on the particulars of the Hart/Dworkin debate, there has been a clear victor, so
much so that even the heuristic value of the Dworkinian criticisms of Hart may
now be in doubt."10
Needless to say, Leiter thinks that Hart has been the clear winner and that, given
this resounding victory, the Hart-Dworkin debate no longer deserves the scholarly
and pedagogical pride of place that it has been accorded for the past four decades.
Looking at the actual question within this piece of work, and the concerns relating
to the Hart/Dworkin debate, one can actually say it is slightly deceiving as it tends
to suggest that it was only Hart and Dworkin that were involved in it. In fact Hart
himself never directly responded to Dworkins theory during his lifetime, even
though he did criticize some of Dworkins positive proposals, it was left to others
to defend. The debate was a dynamic entity carrying itself for a long time.

10 Brian Leiter, Beyond the Hart-Dworkin Debate

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5. REFERENCES
Articles
Scott J. Shapiro, The Hart-Dworkin Debate: A Short Guide to the Perplexed, MLU,
No. 77 (2007)
Tommaso Pavone, A Critical Adjudication of the Hart-Dworkin Debate
Josh Taylor, On the Hart-Dworkin Debate An Examination of Legal Positivism
(2012)
Website
Concerning the Hart and Dworkin Debate, Lawteacher,
http://www.lawteacher.net/free-law-essays/constitutional-law/concerning-the-hartand-dworkin-debate-constitutional-law-essay.php
Cara Howells, The Hart-Dworkin Debate, Prezi, (21 Feb. 2013),
https://prezi.com/kqb7k72y3c8c/the-hartdworkin-debate/