Harts Postscript Dworkin\'s Early Work

Harts Postscript

Dworkin's early work gained prominence for its attacks on legal positivism, in particular H.L.A. Hart's version of legal positivism. 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 not some overlapping issues about which one could accurately state that the theorists have contrary positions, only that to focus on these direct disagreements would tend to underestimate the extent to which the theorists are actually talking past one another (Dworkin, 1977-page 11).

In one of his responses to Dworkin, Hart began by contrasting theories about law in general vs. 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 brings up (among other things) the question 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-page 18). Basing the argument on the 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 put forward, for one of the most significant aspects of Hart's approach to law was that it demanded that 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 the images, on the 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.

Central to Hart's theory is the concept of a rule of recognition: a set of criteria by which the 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 the standards are also created by those actions. To explain: sometimes the standards applied are written down in an official text (e.g. A written constitution) or at the least are clearly expressed in criteria that the officials state that they are following (e.g. "to become valid law, proposed legislation must be passed by a majority of each House of the 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.

However, what should be kept centrally in mind 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-page 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, points to the separation of the identification of the law from its moral evaluation, and the separation of statements about what the law is and what it should be.

The Internal Aspect of Rules (And Of Law)

The "internal aspect" of rules is central to Hart's approach to law. It can best be understood within the context of (and it has repercussions for) certain general problems of constructing general social theories. There are two related problems to consider:

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

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

One factor which must be considered prominently in constructing a theory of law, which would not be relevant to the construction of theories about atomic composition, chemical interaction, photosynthesis and the like, is that law is a human creation to serve human purposes and it is an institution that requires human participation. Because of these aspects, understanding any social process, including law, will be different in kind from understanding processes which are purely physical, chemical or biological (Baird, 1994-page 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 the system or who participate in the system perceive it (Eekelaar, 1973-page 22). This "hermeneutic" approach; that is, giving priority to trying to understand how other people perceive their situation; is always in tension with those who want social theory to be more scientific.

The "scientific" approach to social theory would rely only on data that were "objective," data on which different observers would always agree (Mackie, 1977-page 10). The "scientific" approach to legal theory might be exemplified in various theorists' writings: for example, Christopher Columbus Langdell's view of legal theory as the search for the system of basic principles within the law, and the American legal realists (to some extent reacting against Langdell's view) emphasising what judges "actually do" as contrasted with what they are saying that they are doing (MacCormick, 1978-page 93). (Hart also specifically mentioned the work of the Scandinavian legal realist Alf Ross, who (according to Hart) "claimed that the only method of representation of the law fit to figure in a modern rational science of law was one which shared the structure and logic of statements of empirical science."

Hart's argument is that whatever advantage a "scientific" approach might have, it simply is not adequate for a full understanding of law (Austin, 1955-page 2). One can only understand normative; rule- following; behaviour if one leaves one's spectator's perspective and tries to understand the perceptions of the participants in the system (that is, the perceptions of the people who are following the rules, and who perceive themselves as doing so) (Epstein, 1973-page 5). In Hart's terms, to understand "any form of normative social structure," "the methodology of the empirical sciences is useless; what is needed is a 'hermeneutic' method which involves portraying rule- governed behaviour as it appears to its participants" (Baker, 1977-page 1).

The attack on a purely scientific approach can be seen in Hart's distinction between habitual behaviour and rule-following, mentioned earlier (Dworkin, 1994-page 23). As noted, Hart emphasised the difference between rules and habits, a difference that resided primarily in the participants' perceptions of what they were doing, and in their reactions to and attitudes towards the actions about them. When an action was done "as a rule," rather than "as a habit," the rule is given as a justification for the action, and the rule is also the basis for any criticisms (including self-criticism) for any divergence from the prescribed actions (Eskridge, 1994-page 45). By contrast, we tend to have no justifications at hand (and sometimes we lack explanations of any kind) for our habits, and we certainly do not criticize or expect criticisms when there are deviations from those habits. Because a scientific, purely "external," approach to law would conflate habitual actions and rule-following, according to Hart it would inevitably miss some matters which are at the essence of law. However, to say that one is going to take the perspective of a participant in the social practice is at best a first step. After all, most social practices have a large number of participants, all of whom do not share the same view of, or attitude towards, the practice (Hart, 1983-page 11). One prominent legal theorist, John Finnis argues that the perspective chosen should be that of a (hypothetical) practically reasonable person, who applies appropriate moral reasoning to conclude (if true) that the legal system creates binding (prima facie) moral obligations (Balkin, 1994-page 76). A second prominent legal theorist, Ronald Dworkin, argues that one should theorize as if one were a participant in the social practice, offering an interpretation of that practice that makes it the (morally) best practice it can be. Both of these perspectives are, from Hart's perspective, too extreme: he wants a legal theory which would be free from moral evaluations or moral commitments (unlike Finnis' approach), while remaining a descriptive theory of the practice rather than a participation in it (unlike Dworkin's approach). Hart was trying to keep a difficult middle position (Hacker, 1977-page 31). He argued that a legal theory should be constructed around the perspective of someone who accepted the legal system, but the theory itself (or, to put the matter differently, the theorist herself) need not, and should not, endorse the system (as one which is generally just or which creates binding moral obligations). In other words, the theory simultaneously:

(1) attempts to take into account the participant's perspective; and (2) manages to choose among possible participants' perspectives without having to make moral judgments; while

(3) keeping sufficient distance from the participants' perspective to allow for moral criticism of the whole system / enterprise (Perry, 1995-page 52).

The danger is of Hart's position sliding towards an Austin-like command theory, on one side, and a position closer to Finnis' or Dworkin's, on the other (Hacker, 1977-page 14). To put the matter a different way, the question is how to take seriously the need to accept the perspective of a participant in a practice while still maintaining a sufficient distance to be able to criticise the practice (and the participants) (Raz, 1979-page 17). In social theory (or perhaps, more accurately, "social sciences meta-theory"), this has led to an ongoing debate regarding whether an attempt to "explain each culture or society in its own terms ... rules out an account which shows them up as wrong, confused or deluded" (Ball, 1990-page 72). (One can say: if you claim to understand the perspective of the believing participant of a particular practice, but you think the practice is irrational and cruel, then you have not really understood or properly incorporated the perspective of the believer, because that is not how it looks to him or her (Twining, 1979-page 34). An additional complication, one whose implications are hard to tease out, is that in the social sciences one must consider the role of an internal point-of-view, both in the evaluation of data gathered and in the actual gathering of that data nor to evaluating it. This additional point is unclear in its implications because it ties into the debate on what it would mean to "gather evidence" (Cohen, 1984-page 18) for a general theory of law (and what kind of evidence one would want).