Hart's Postscript: Legal Positivism and the Dworkin Debate
This paper examines H.L.A. Hart's theoretical responses to Ronald Dworkin's critique of legal positivism, with particular focus on Hart's posthumously published postscript. It explores how the Hart–Dworkin exchange is best understood not as a direct debate but as two theorists working from fundamentally different assumptions about what legal theory should accomplish. Key topics include Hart's rule of recognition as an expression of positivism's separation thesis, the internal aspect of rules and its methodological implications for social theory, and Hart's attempt to occupy a middle ground between purely scientific and morally committed approaches to jurisprudence. The paper concludes by assessing the residual conflict over whether a non-interpretive descriptive theory of law remains viable.
- Introduction: The Hart–Dworkin Exchange: Framing the Hart–Dworkin exchange as methodological divergence
- The Rule of Recognition and Legal Positivism: Rule of recognition as expression of legal positivism's separation thesis
- The Internal Aspect of Rules and Social Theory: Why social theory requires understanding participant perspectives
- Scientific vs. Hermeneutic Approaches to Law: Limits of scientific method for understanding normative behaviour
- Hart's Middle Position Between Finnis and Dworkin: Hart's difficult middle ground avoiding moral commitment and pure description
- Conclusion: Residual conflict over descriptive versus interpretive legal theory
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What makes this paper effective
- The paper frames the Hart–Dworkin relationship as a methodological divergence rather than a simple point-counterpoint dispute, which produces a more nuanced and intellectually honest analysis.
- Transitions between sections are logically ordered: the paper moves from the nature of the exchange, to Hart's key conceptual tool (the rule of recognition), to the broader epistemological stakes (hermeneutics vs. scientific method), and finally to Hart's contested middle position.
- The paper draws on a wide range of primary and secondary sources — Hart, Dworkin, Finnis, Raz, Weber, and others — to situate Hart's theory within both legal and social-scientific debates.
Key academic technique demonstrated
The paper demonstrates comparative theoretical analysis: rather than summarizing one thinker in isolation, it situates Hart's positions in relation to competing approaches (Austin's command theory, Dworkin's interpretivism, Finnis' natural law) to reveal what is distinctive and difficult about Hart's middle-ground stance. This technique shows how a theorist's position is defined as much by what it rejects as by what it asserts.
Structure breakdown
The paper opens by characterizing the Hart–Dworkin exchange as a disagreement about the purpose of legal theory rather than a debate over specific propositions. It then explains Hart's rule of recognition as the embodiment of positivism's separation thesis. The central body shifts to methodological questions — the internal aspect of rules, the limits of scientific approaches, and the hermeneutic alternative — before analyzing Hart's contested effort to hold a position between moral commitment and detached description. The conclusion revisits the core tension over whether a non-interpretive descriptive jurisprudence is possible.
Introduction: The Hart–Dworkin Exchange
Dworkin's early work gained prominence for its attacks on legal positivism, and in particular on H.L.A. Hart's version of it. What little direct response there was from Hart tended to come late in his life, and a good portion of it was only published posthumously.
The "debate" between Dworkin and Hart may be best understood as not having been a debate at all, as the term is normally used. The differences between the two theorists are not so much contrary views on particular issues, but both more and less than that: differing ideas about which questions and which concerns in legal theory are most pressing (Tushnet, 1983). This is not to say that there are no overlapping issues about which one could accurately state that the theorists hold contrary positions — only that to focus on these direct disagreements would tend to underestimate the extent to which the two theorists are actually talking past one another (Dworkin, 1977, p. 11).
In one of his responses to Dworkin, Hart began by contrasting theories about law in general with theories about a particular legal system — or, as he read Dworkin's theory, theories about how judges in a particular legal system should decide cases. This claim raises, among other things, questions about the possibility of general jurisprudence and the proper characterization of Dworkin's theory.
Elsewhere in the same article, Hart offers a contrast between possible types of legal theory, a contrast based on images. One type of theory is to be used "within" the legal system: for example, in telling a judge how to decide disputes. Another type of theory involves looking at the system "from the outside" (Weber, 1949, p. 18). Basing the argument on these images, one would say that a theory cannot be simultaneously part of the legal system and a description of the system from the outside. In some ways, this last argument is a strange one for Hart to have advanced, for one of the most significant aspects of Hart's approach to law was that it demanded we look at the perspectives of citizens and officials within a legal system — the "internal point of view" — in constructing a theory of law.
The main question for this exchange between Dworkin and Hart is how much we can rely on images and metaphors alone in evaluating or creating arguments. It does sound strange to say that a theory is simultaneously part of the system and the best explanation of the system. However, this type of argument, with all its hints of circularity, is actually relatively common in modern philosophy. Examples include the hermeneutic circle in literary theory and John Rawls' use of reflective equilibrium in moral and political theory.
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