Hart's Postscript: Legal Positivism and the Dworkin Debate

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.

The Rule of Recognition and Legal Positivism

Central to Hart's theory is the concept of a rule of recognition: a set of criteria by which officials determine which rules are, and which rules are not, part of the legal system. The standards applied are referred to as justifications for the actions of the officials, although to some extent those standards are also created by those very actions. Sometimes the standards applied are written down in an official text — for example, a written constitution — or are at least clearly expressed in criteria that officials state they are following (e.g., "to become valid law, proposed legislation must be passed by a majority of each House of Congress and then signed by the President"). At other times, the standards the officials are following can only be determined after the fact by reference to the decisions they have made.

A number of issues have been raised by later commentators regarding the rule of recognition: for example, whether it is best understood as a duty-imposing or power-conferring rule, and whether there can be more than one rule of recognition within a given legal system.

What should be kept centrally in mind, however, is what the concept of a rule of recognition indicates — what it stands for. The rule of recognition expresses, or symbolizes, the basic tenet of legal positivism (Dworkin, 1986, p. 34): the fact that there are, in principle, criteria largely agreed upon by officials for determining, in the vast majority of cases, which rules are and which are not part of the legal system. This points to the separation of the identification of law from its moral evaluation, and the separation of statements about what the law is from statements about what it should be.

The Internal Aspect of Rules and Social Theory

The "internal aspect" of rules is central to Hart's approach to law. It can best be understood within the context of certain general problems of constructing general social theories — and it has repercussions for those problems. Two related questions must be considered:

(1) How must social theories differ from theories in other areas?

(2) To what extent can a social theory be "scientific"?

One factor that must be considered prominently in constructing a theory of law — a factor that would not be relevant to theories about atomic composition, chemical interaction, photosynthesis, and the like — is that law is a human creation serving human purposes, and it is an institution that requires human participation. Because of these aspects, understanding any social process, including law, will differ in kind from understanding processes that are purely physical, chemical, or biological (Baird, 1994, p. 134).

This is the context for understanding Hart's concept of the internal aspect of rules. The idea is that one cannot understand a social system unless one understands how the people who created or participate in the system perceive it (Eekelaar, 1973, p. 22). This "hermeneutic" approach — giving priority to understanding how other people perceive their situation — is always in tension with those who want social theory to be more scientific.

Conclusion

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 involves looking at the system "from the outside." 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 his 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.

To the extent that there is a true conflict between Dworkin and Hart, it arises at those moments when Dworkin states or implies that there is no room for a substantive, detailed, and interesting descriptive theory of law that is not also interpretive. This struggle can be seen not only in Hart's insistence on the space for, and need for, a non-interpretive descriptive theory of law in general, but also in his disagreement with any attempt to recast legal positivism as being about justifying present or future coercion, and in his claim that even if the "sense" of legal propositions in most or all legal systems is interpretive or evaluative, it does not follow that a descriptive theory of such matters need also be interpretive or evaluative.

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