Hart versus Dworkin

A match is underway and something happens that the rulebook does not cover. One view says the referee must simply decide, sensibly, and his ruling becomes a new rule: the book ran out, so he legislates. Another view says the rulebook is not the whole of the game: behind its rules lie the principles of fair play that make sense of them, and a good referee asks which ruling best fits the game's history and shows it in its best light; the answer was already there to be found. The first is Hart, the second Dworkin. The question they fought over for thirty years is whether a judge in a hard case makes law or finds it. Dworkin's theory in full is in Note 19; judicial discretion is in Note 47.

Figure: The hard case: Hart's judge exercises discretion and makes new law where the rules run out; Dworkin's judge finds the right answer that principles already supply

1. Hart's Position

For Hart (The Concept of Law, 1961), law is a union of primary and secondary rules, identified by a rule of recognition that looks to a rule's source (pedigree), not its merit. Because rules are expressed in general language, they have an open texture. Each has a core of settled meaning, where it plainly applies, and a penumbra of doubt. In the penumbra the law is incomplete: there is no existing answer to find, and the judge must exercise discretion, creating new law. That creation is limited. The judge may not act arbitrarily; he must give general reasons and act as a conscientious legislator would, but only interstitially, filling gaps within the space the settled law leaves.

2. Dworkin's First Attack: The Model of Rules (1967)

Dworkin argued that when lawyers argue hard cases they rely on standards that are not rules: principles. The two differ logically. A rule applies in an all-or-nothing fashion: if its conditions are met and it is valid, it settles the case, and if two rules conflict, one must be invalid. A principle has a dimension of weight: it states a reason pointing one way, and when principles conflict, the judge weighs them and the weaker one survives intact for future cases. Principles are law, yet they cannot be identified by a pedigree test, because their authority comes from their sense of appropriateness developed over time. So Hart's rule of recognition, Dworkin concluded, cannot capture the whole of law.

Dworkin then distinguished three senses of discretion. Two are weak: a standard may require judgment to apply (a sergeant told to pick his five most experienced men), or an official's decision may be final and unreviewable (an umpire's call). The strong sense means that the official is not bound by standards set by the authority in question at all. Dworkin accepted that judges have discretion in the weak senses but denied that they have it in the strong sense, which is what Hart's theory needs. He also distinguished principles, which describe rights, from policies, which describe collective goals; judges should decide hard cases on principle, leaving policy to the legislature. This is his rights thesis.

3. Dworkin's Later Theory: Law's Empire (1986)

In Law's Empire Dworkin broadened the attack. The semantic sting argument (belonging to this 1986 book, not the 1967 essay) says that positivists assume lawyers share criteria for using the word 'law', so that disagreement can only be about facts or borderline cases. But lawyers disagree theoretically about what the grounds of law are. Law is therefore an interpretive concept, and every statement of law is an interpretation. The best interpretation must satisfy two dimensions: fit with the existing legal materials, and justification, showing them in their best moral light. Dworkin's image is the chain novel: each judge is like a novelist writing a new chapter of a novel begun by others, who must write so that the story reads as the work of a single author and is the best it can be. Law so understood is law as integrity: the community speaks with one coherent voice of principle. His ideal judge, Hercules, of superhuman skill and patience, first appears in Taking Rights Seriously (in the essay 'Hard Cases') and is developed in Law's Empire.

4. Hart's Replies

In 'American Jurisprudence through English Eyes: The Nightmare and the Noble Dream' (1977), Hart located his view between two extremes. The Nightmare is the realist claim that judges always make law and never find it. The Noble Dream is the belief that judges never make law, and Hart identified Dworkin as its most illustrious modern dreamer. The truth, said Hart, is that judges sometimes find and sometimes make law.

The fuller reply came in the Postscript, which Hart was drafting at his death in 1992 and which was published in the second edition of The Concept of Law (1994), edited by Penelope Bulloch and Joseph Raz. Hart made four points. First, his theory is descriptive and general, not a justification of any particular system, while Dworkin's is justificatory and tied to one culture. Second, the rule of recognition can identify many principles by their pedigree, since they are cited in cases and statutes. Third, and most importantly, the rule of recognition may itself include moral criteria of validity, as a bill of rights does; where it does, principles are law because the rule of recognition says so. This is soft or inclusive positivism. Fourth, judges do have discretion in the strong sense, but it is interstitial and constrained. Joseph Raz rejected Hart's concession and defended exclusive (hard) positivism: the existence and content of law must always be identifiable by social sources alone, without moral argument, because law claims authority.

5. The Two Compared

6. The Indian Perspective

Indian law offers a statutory twin of Riggs v Palmer. Section 25 of the Hindu Succession Act, 1956 disqualifies a person who commits or abets murder from inheriting the property of the person murdered. Where the legislature has enacted the principle, it is a rule identified by source, which Hart can easily explain. The debate matters where no text speaks.

7. Evaluation

Dworkin forced positivism to sharpen itself; the inclusive and exclusive camps both grew from his challenge. His critics make several points. The right answer thesis seems unrealistic when able judges disagree, and Hercules is a myth no real court can imitate. Balancing fit against justification is itself a choice that different judges will make differently, so discretion returns under another name. Critical legal scholars add that principles pull in opposite directions and can justify almost any result.

Hart's critics reply that a description of law which ignores its point misses what lawyers actually do: they argue as if there were a right answer, and they criticise judges for getting the law wrong even in hard cases, which makes little sense if the judge was simply legislating. Hart's defenders answer that saying a judge made law does not mean he acted arbitrarily. The debate remains open, and examiners reward answers that show both the strength of Dworkin's attack and the resilience of Hart's reply.

8. Frequently Asked Questions

Q. What is the core of the Hart-Dworkin debate?
A. Whether judges in hard cases make law or find it. Hart says legal rules have an open texture and in the penumbra the judge has discretion to create law interstitially. Dworkin says law includes principles as well as rules, so the judge is always bound by legal standards and must find the answer that best fits and justifies the law.

Q. How do rules differ from principles for Dworkin?
A. Rules apply in an all-or-nothing way and a conflict between rules means one is invalid. Principles have weight: when they conflict, the judge weighs them and the outweighed principle remains law. Principles describe rights; policies describe collective goals.

Q. Did Hart accept any of Dworkin's argument?
A. Partly. In the Postscript Hart accepted that principles can be part of the law where the rule of recognition includes moral criteria, a position called soft or inclusive positivism, but he maintained that judges retain a limited, interstitial law-making discretion.

Q. What is the difference between inclusive and exclusive positivism?
A. Inclusive (soft) positivism, accepted by Hart in the Postscript, holds that the rule of recognition may make moral principles part of the test of validity. Exclusive (hard) positivism, defended by Raz, holds that law must always be identifiable from social sources alone, without moral argument, because law claims authority to settle what people should do.

See also: Note 19 (Dworkin), Note 11 (analytical school), Note 47 (certainty and discretion), Note 42 (interpretation), Note 65 (Hart versus Fuller).