Mendoza, Urika Loi M.

XXX X, 2019
2018-20861 Law 117- Legal Theory
CHAPTER SUMMARY
H.L.A. Hart’s The Concept of Law, 2nd Edition
Postscript

H.L.A. Hart’s The Concept of Law was published in 1961. He intended to write a
prescript as a response to the reactions of his work. However, the postscript was
unfinished when he died. The editors of the book published the most finished parts of the
postscript but the drafts were not meant to be final.

In the postscript, Hart wanted to focus on the criticisms of his view that was
advanced by Ronald Dworkin. Meanwhile, the second section of the postscript was too
undeveloped at the time of Hart’s death for the editors to include in the book. As such,
the postscript wholly focuses on Dworkin’s views.

The Nature of Legal Theory

In a general sense, legal theory is not tied to any particular legal system or legal
culture. It seeks to give an explanatory and clarifying account of law as a complex social
and political institution with a rule-governed aspect. Such institution has taken the same
general form and structure. However, there are many misunderstandings and obscuring
myths, and calling for clarification that clustered around it.

A way to clarify such misunderstanding is through the widespread common

knowledge of the salient features of a modern municipal system. Legal theory conceived
in both descriptive and general is a radially different enterprise from Dworkin’s
conception of general theory. Dworkin termed the central task of legal theory as
interpretive and partly evaluative. This is so because it consists in the identification of the
principles that both best fit or cohere with the settled law and legal practices of a legal
system.

For Dworkin, “Jurisprudence is the general part of adjudication, silent prologue to

any decision at law.” In his latest work, Law’s Empire, he characterizes such principles in
an “interpretative sense.” This yields three different forms of legal theory:
conventionalism, legal pragmatism, and law as integrity. In his books, Dworkin appears
to rule out general and descriptive legal theory as misguided or at best simply useless.

Hart reviews the major concepts introduced in Dworkin’s book and distinguishes
his legal theory from Dworkin’s. Dworkin thinks that jurists should look for principles,
often moral, that best make sense of and render coherent settled law and legal practices.
He rejects the “descriptive” legal theory that is part of Hart’s view. Hart claims to be
largely unable to follow Dworkin’s arguments.

Dworkin’s central objection revolves around the idea that legal theory must take
account of an internal perspective on the law – that is the viewpoint of an insider or
participant in a legal system. However, according to Hart, there is nothing in the project
of descriptive jurisprudence that precludes a non-participant external observer from
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describing the ways in which participants view the law from such an internal point of
view.

The Nature of Legal Positivism

i. Positivism as a Semantic Theory

In this section, Hart reviews some of Dworkin’s criticisms of how Hart handles
the concept of legal positivism. Dworkin finds a large number of errors in Hart’s version
of legal positivism, the most fundamental of which is the view that the truth of
propositions of law (such as those that describe legal rights and legal duties) depends
only on questions of plain historical fact including facts about individual beliefs and
social attitudes.

Many illuminating pages of Dworkin’s criticism of legal positivism show that

theoretical disagreement as to what constitutes the grounds of law is, contrary to the
positivist’s view, a prominent feature of Anglo-American legal practices. He offers two
different accounts of how it is the positivists have come to adopt their radically mistaken
view:

1. Positivists believe that if the grounds of law were not uncontroversially

fixed by rules, then the word “law” would mean different things to
different people. In using it, they would be simply taking past each other,
not communicating the same thing.
2. Positivists claim that Dworkin’s theory of law is not a semantic theory, but
a descriptive account of the distinctive features of law in general as a
complex social phenomenon, presents a contrast with semantic theory that
is empty and misleading.

There is a semantic theory of law that Dworkin said to be a theory about the word
“law” makes law depend on certain specific criteria. However, propositions of law are
typically statements not of what “law” is but of what the law is (i.e. what the law of some
system permits, requires, or empowers people to do). This means that even id the
meaning of these propositions of law was determined by definitions or by their truth-
conditions, it does not lead to the very meaning of the word “law” makes law depend on
certain specific criteria.

Dworkin treats Hart’s doctrine of the rule of recognition as requiring that the
criteria that it provides for the identification of law must consist only of historical facts
and so as an example of “plain-fact positivism.” Hart claims that the “semantic” version
of plain-fact positivism that Dworkin arrtibutes to Hart is plainly not Hart’s. In fact, Hart
claims that his theory is not in any form of plain-fact positivism.

ii. Positivism as an Interpretive Theory

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The second account of Dworkin’s 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 Drowkinian interpretive theory called conventionalism 1 . Dworkin ultimately
rejects this theory as defective. This theory casts favorable light on law because it shows
that the occasions for legal coercion are made to depend on plain facts available to all.
This is so that all will have fair warning before coercion is used.

Hart treats this interpretivist account of positivism as conventionalism that cannot

be presented as a plausible version or reconstruction of his theory of law. He provided
two reasons:

1. Hart’s theory is not a plain-fact theory of positivism since among the criteria of
law it admits values, not only “plain” facts.
2. While Dworkin’s interpretative legal theory in all its forms rests on the
presupposition that the point or purpose of law and legal practice is to justify
coercion, it certainly is not and never has been Hart’s view that law has this as its
point/purpose.

iii. Soft Positivism

In this section, Hart claims that Dworkin has mistakenly treated his theory as not
only requiring (as it does) that the existence and authority of the rule of recognition
should depend on the fact of its acceptance by the courts, but also as requiring (as it does
not) that the criteria of legal validity the rule provides should consist exclusively of the
specific kind of plain fact that he calls “pedigree” matters – which concern the manner
and form of law-creation or adoption

Hart provided two reasons why Dworkin was doubly mistaken:

1. Dworkin’s version ignores Hart’s explicit acknowledgement that the rule

of recognition may incorporate as criteria of legal validity conformity with
moral principles or substantive values. As such, Hart’s doctrine has been
called soft positivism and not Dworkin’s version of it “plain-fact”
positivism.

2. There is nothing in Hart’s book that suggests that the plain-fact criteria
provided by the rule of recognition must be solely matters of pedigree.

The following are Dworkin’s criticisms:

1. There is a deep inconsistency between soft positivism that permits the

identification of the law to depend on controversial matters of conformity
with moral or other value judgments. Further, he claims that there is the

1Based on this theory, the positivist presents the criteria of law as consisting of plain facts,
uncontroversially fixed not, as in the semantic version, by the vocabulary of law but by a
conviction that is shared by judges and lawyers.
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general positivist “picture” of law as essentially concerned to provide
reliable public standards of conduct that can be identified with certainty as
matters of plain fact without dependence on controversial moral
arguments.

Hart: Such criticism of soft positivism seems to exaggerate both the

degree of certainty that a consistent positivist must attribute to a body of
legal standards and the uncertainty that will result if the criteria of legal
validity include conformity with specific moral principles or values.

2. The consistency of Hart’s version of soft positivism raises different and

more complex issues concerning the determinacy and completeness of
law.

Hart: Certain cases are legally unregulated and to reach a decision in such
cases, the courts must exercise the restricted law-making function that
Hart calls discretion.

3. The idea of a criterion of legal validity can still be a genuine test for pre-
existing law because its controversial character is perfectly compatible
with there being facts in virtue of which it is true.

Hart: Soft positivism, as Dworkin claims, is not only inconsistent with the
positivist “picture” of law as identifiable with certainty, but also
inconsistent with the wish that he attributes to positivists to make the
objective standing of propositions of law independent of any commitment
to any controversial philosophical theory of the status of moral judgments.

The Nature of Rules

i. The Practice Theory of Rules

In this section, Hart recalls the distinction between internal and external
statements of law and between internal and external aspects of law that were discussed in
the various points of his book. Dworkin has extensively criticized Hart’s practice theory
of social rules. Here are some of Dworkin’s criticisms:

1. Hart’s account is defective in ignoring the important difference between a

consensus of convention manifested in a group’s conventional rules and a
consensus of independent conviction manifested in the concurrent
practices of a group.
2. Hart’s account of social rules is applicable only to rules that are
conventional. However, according to Hart, this considerably narrows the
scope of his practice theory and he does not regard it as a sound
explanation of morality, either individual or social.
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Dworkin argues that Hart’s account cannot explain the normative character
possessed by even the simplest conventional rule. Further, according to Dworkin, a
normative rule with reason giving and duty establishing features can only exist if there is
a “certain normative state of affairs. For Hart, he finds these quoted words tantalizingly
obscure.
Lastly, Dworkin argues that the practice theory of rules, even if restricted to
conventional rules, must be abandoned because it cannot accommodate the idea that the
scope of a conventional rule may be controversial and so the subject of disagreement.
Moreover, Dworkin contends that in hard cases, there are frequent theoretical
disagreements between judges as to what the law on some subject is, and that these show
that the appearance of uncontroversiality and general acceptance is an illusion.

ii. Rules and Principles

Generally, Dworkin’s criticism of Hart’s view of law is that it represents law as

consisting of “all-or-nothing” rules and ignores legal principles used in legal reasoning
that have more grey area. Hart thinks that whatever is valid in the criticisms can be
accommodated within his theory without abandoning it totally.

In this section, Hart attempted to answer the thing that he was charged with
ignoring. His critics accused him of ignoring principles. However, he claims that there
are at least two features that distinguish principles from rules:

1. Principles are, relatively to rules, broad, general, or unspecific in the sense

that often would be regarded as a number of distinct rules can be exhibited
as the exemplifications or instantiations of a single principle.
2. Principles, because they refer more or less explicitly to some purpose,
goal, entitlement, or value, are regarded from some point of view as
desirable to maintain.
3. In addition to the two above, the third distinguishing feature is a matter of
degree whereas Dworkin who regards it as crucial does not.

For Hart, he sees no reason to accept either sharp contrast between legal
principles and legal rules, or the view that if a valid rule is applicable to a given case, it
must (unlike a principle) always determine the outcome of the case. According to him,
there is no reason why a legal system should not recognize that a valid rule determines a
result in cases to which it is applicable, except where another rule, judged to be more
important, is also applicable to the same case.

Hart considers that arguments from non-conclusive principles are an important

feature of adjudication and legal reasoning, and that it should be marked by an
appropriate terminology.

Principles and the Rule of Recognition

i. Pedigree and Interpretation

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In this section, Hart covers Dworkin’s arguments to the effect that legal principles
cannot be identified by rules of recognition manifested in juridical practice because the
principles are essential elements of the law. Dworkin conceives of the body of law
holistically, interdefining itself and thus resists Hart’s more dualistic theory of law.

According to Dworkin, legal principles can only be identified by constructive

interpretation as members of the unique set of principles that both fits and best justifies
the whole institutional history of the settled law of a legal system. No court (English or
American) has ever explicitly adopted such a system-wide holistic criterion for
identifying the law.

Law and Morality

i. Rights and Duties

Hart argues in this book that though there are many different contingent
connections between law and morality, there are no necessary conceptual connections
between the content of law and morality. Hence, morally iniquitous provisions may be
valid as legal rules or principles. One aspect of this form of the separation of law from
morality is that there can be legal rights and duties that have no moral justification or
force.

Dworkin rejected Hart’s idea in favor of the view that there must be at least prima
facie moral grounds for assertions of the existence of legal rights and duties. Dworkin
regards the ide that “legal rights must be understood as species of moral rights” as
“crucial” element in his legal theory and says that the opposed positivist doctrine belongs
to the “peculiar world of legal essentialism” in which it is just given to us to know pre-
analytically that there can be legal rights and duties without any moral ground or force.

According to Hart, Dworkin’s criticism of the doctrine that legal rights and duties
may be devoid of moral force or justification is mistaken because of the following
reasons:
1. Legal rights and duties are the point at which the law with its coercive
resources respectively protects individual freedom and restricts it or
2. Confers on individuals or denies to them the power to avail themselves of
the law’s coercive machinery

Hart concluded that it is untrue to say that statements of legal rights and duties
can only make sense in the real world if there is some moral ground for asserting their
existence.

ii. The Identification of the Law

According to Hart, the most fundamental difference relating to connections

between law and morality between his legal theory and Dworkin’s concerns the
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identification of the law. In Hart’s theory, the existence and content of the law can be
identified by reference to the social sources of the law (e.g. legislation, judicial decisions,
social customs) without reference to morality, except where the law incorporated moral
criteria for the identification of the law. Meanwhile, in Dworkin’s interpretive theory,
every proposition of law stating what the law on some subject is necessarily involves a
moral judgment.

Judicial Discretion

One major issue that we should focus on in this section is Dworkin’s challenge to Hart’s
view that due to the indeterminacy of language, law will be indeterminate, and so judges
must have discretion to make the law determinate. Dworkin thinks that there is always
one correct answer as to what the law must be, though people can reasonably disagree
about it.

Dworkin thinks that there is always one correct answer as to what the law must be,
though people can reasonably disagree about it. Dworkin thinks Hart’s view commits him
to thinking the content of law is determined in an ex post facto fashion and is
fundamentally anti-democratic.

Hart denies both claims on the grounds that: (1) ex post facto laws are bad because they
change expectations and judicial discretion of Hart’s sort does not do this, and (2) there is
nothing anti-democratic about delegating some power of discretion to judges.