The Postscript in the second edition of Hart’s THE CONCEPT OF LAW

Introductory

Focus of postscript is on Dworkin, because he has argued that nearly all the distinctive theses of this book are radically mistaken, and called into question the whole conception of legal theory and of what it should do which is implicit in the book.

  1. The Nature of Legal Theory
  • my book is general and descriptive, not tied to any legal system, but seeks to explain account of law as complex social and political institution with rule governed aspect.
    • Dworky on other hand, central task of legal theory is ‘interpretive’ and partly evaluate, since it consists in identification of principles which both best “fit” or cohere with settled law and legal practices of a legal system and also provide the best moral justification for them, showing law in “its best light”. For Dworky “jurisprudence is silent prologue to any decision at law”.
  • Dworky and my own are very different, and no reason why there must be conflict. Dworky devotes Laws Empire to comparative merits of three diff accounts of way in which law “past political decisions” justifies coercion, and so yields three different forms of legal theory which he calls “conventionalism”, “legal prag” and “law as integrity”.
    • Hart objects that positivist legal theory (like concept of law HLA Hart) can be re-stated as such an interpretive theory.
    • Now Dworky refined himself, saying that jurisprudence is general part of adjudication only true about question of sense.

II: Nature of Legal Positivism

(i) Positivsm as a Semantic Theory

  • Dworkin finds a lot of errors in Hart’s version of legal positivism. Most fundamental: view that truth of propositions of law such as those that describe legal rights and duties depends only on q of plain historical fact including facts about individual beliefs and social attitudes.
  • Dwork spends lot of time of criticism legal positivism to show that theoretical disagreement as to what constitutes the grounds of law is a prominent feature of Anglo American legal practices.
  • How did positivists arrive at confused view? In Dwork mind, they use word law and mean different things and talk past each other.
  • Hart says nothing in his book Suggests that he is plain fact positivist and suffers from semantic sting.
  • Dworkin wrong to ascribe plain fact positivism to me: Dwork misrepresents my form of legal positivism. He treats my doctrine of ROR as requiring that criteria which it provides for identification of law must consist only of historical facts. Though my examples used may be so, I expressly state at page 72 that in some system of law like US the ultimate criteria of legal validity might explicitly incorporate principles of justice or substantive moral values.

(ii) Positivism as an Interpretive Theory

  • Dwork second account of plain fact positivism does not treat it as a semantic theory or as based on linguistic considerations but attempts to reconstruct it as a form of Dworkinian interpretive theory called Conventionalism. In this theory the positivist, in guise of an interpretive theorist committed to showing law in best light, presents the criteria of law as consisting of plain facts, uncontroversially fixed not by vocab of law but by conviction which is hared by judges and lawyers.
  • But wrong to say this interpretivist account of positivism as conventionalism is plausible reconstruction of Hart’s theory. 2 reasons:
    • Hart theory not plain fact since it has values among its criteria of law.
    • Justification of coercion not main point of law according to Hart.
    • Read the article from Abogados de accidentes
  • Dworky sticks Hart into conventinliast camp (and rejects it) because of Chapter V section 3 of Harts book, but Hart says that nowhere makes any claim that legal coercion is only justified when it conform to all the rules laid out therein (stagnates, uncertainty, inefficiency…)
    • “Nothing in my theory Suggests that general point or purposes of ROR – or law for that matter – is only justification for coercion“