Jurisprudence | Legal Theorists

Question 2

From the perspective of your approved topic consider the value of legal theorists arguing about what the law “ought” to be and for particular visions of the “good society” as opposed to focusing solely on questions about the nature of law.

Twentienth-century legal positivism subscribe to the view that an analytical distinction must be maintained between law and morality, between “is and ought”.

Contemporary legal positivism includes three main claims about the nature of law, the separability thesis which denies the existence of necessary moral constrains on the content of law, The pedigree thesis which articulates necessary and sufficient conditions for legal validity in respect of how or by whom law is promulgated, the discretion thesis which asserts that judges decide hard cases by making new law. This paper will focus on issue of nature of law considering the value of legal theorists Professor H.L.A Hart and Professor Ronald Dworkin. The discussion is more inclined to “defend” and rationalize Professor Hart's theories against the attack directed by Professor Dworkin, namely hart's objection to Dworkin according to “The Law Empire” by Professor Hart.

Hart's theory provides an insight onto the “nature of law” as himself put it “the general framework of legal thought” as illustrated in his “The Concept of law” Hart claimed two important features of what law is and how valid law is to be identified. First, it is a descriptive rather than a morally or ethically evaluative project and second, it is a philosophical rather than a legal project. Hart's Theories offered a clear idea of the nature of present law besides his criticisms against Professor's John Austin's “command theory” to the expositions of weaknesses and incompatibility of Austin's theory with the contemporary legal system.

Hart claimed that law is a social phenomenon and can only be understood and explained by reference to the actual social practices of a community, namely the “social rule”. There is a need for obligation rules, “the minimum content of natural law” in all societies because human's capacities are very limited. They are thus of external aspects and internal aspects which stand for observation by outsiders and the awareness of the group members themselves. Social rules are divisible into social conventions and rules which imposing obligations. Obligation rules was sub-divided into rules of moral obligations and rules which take the form of law. Legal rules comprise primary rules which laid down fundamental duties and secondary rules in altering the primary rules. The primary rules might be uncertain in application, static in development and inefficient, led to the introduction of secondary rules of change, adjudication and recognition. Rule of change facilitate legislature or judicial changes while rule of adjudication associated with a further power to punish wrongdoer and these two secondary rules usually confer power but do not impose duties.

The Rule of Recognition, on the other hand, appears to impose duties in determining the validity of law. The rule of recognition is “common, public standard of correct judicial decision” which is binding only if accepted by the officials in question. Hart emphasized that a legal theorist who wishes to understand the obligation the law imposes from secondary and primary rules in a legal system must view the legal system from the point of view of an actor in the system. This acceptance was termed by Hart as the “internal aspect of law” as contrary to habit or custom. Professor MacCormick tried to cover lacunas within Hart's theory by suggesting a “volition element”. From here, one might say that Hart views the legal system as a “form of life,” rather than merely as a formal system.

One rule of recognition can be derived from another and it is generally yet effective derived from social practice since there is no specific way in identifying it. Hart claims that there is an “ultimate rule of recognition” whose validity cannot be questioned and its existence depends solely on the fact that it is accepted by officials from the internal point of view.

In his development of a “union of primary and secondary rules” legal system, Hart strikes a compromise between the strictly formalist view and the rule scepticism of the American Realist movement by accepting that law are indeed rules, but he recognises that judges have fairly wide discretion in delivering judgement. when rules have an “open texture” where there is no applicable legal rule or the rules are uncertain, in such “hard” situations, the judges must use their discretion to fill in the gasps.

Hart observed a fundamental distinction between “analytical” and “normative” jurisprudence. One would categorise Hart's own theory as “analytical” jurisprudence which aimed at clarifying the concept of law, not by telling what is good or bad, just or unjust while Rawl's theory could be granted as “normative” jurisprudence at prescribing the way our institutions ought to be reformed.

Dworkin, on the other hand, suggested law should mainly concern about individual rights and thus quashed the contention that law should serve the community goal as a whole. The Hart/Dworkin debate begins with Dworkin's 1967 paper “The Model of Rules,” where Dworkin rejects to Hart four doctrines: that law consists of “rules”; that legal rules are identified via a “rule of recognition”, “by tests with their pedigree not content”; that where a rule does not control a case, judges have discretion; and that in those cases where judges have discretion, neither party has a pre-existing legal right to prevail.

From hart we gain a clearer understanding of law by maintaining, for the purpose of analysis, a separation between the law as it is the law as it ought to be. To dworkin this is unacceptable and, indeed, impossible. This is because law consists not merely of rules but also of what dworkin called “non-rule standards”. There is no rule of recognition which distinguishes between legal and moral principles. Dworkin opines that rules are “all or nothing” standards and they cannot conflict because valid rules are conclusive reasons for action. If two rules conflict, then one of them cannot be valid. By contrast, principles do not dispose of the cases to which they apply and they are not necessary conclusive even they support to various actions. Valid principles, therefore, may conflict and typically do.

The discretion and obligation thesis are far from trivial having regard the distinction between them. The discretion thesis holds that the law consists solely of legal rules; no principles. Likewise, the obligation thesis states that legal obligations can be generated only by legal rules. Where legal rules are inapplicable, legal obligations do not exist, and judges by necessity must look beyond the law to decide the case. For instance in hard cases of Riggs v Palmer and Henningsen v. Bloomfield Motors, where the courts were influenced by numerous of policies and principles which pull them in difficulty to make decisions. Dworkin emphasises that there is always one correct decision even in unclear cases after taking relevant considerations, although the decision might be unknown. Subsequently, Dworkin argues that a judge's decision in unclear cases is characteristically determined, and should be, entirely by principles specifying rights and entitlements. Thus, it is the judge's role to use his own discretion regarding when he thinks rules need to be applied, changed, improved, or abolished.

Dworkin claims that rule of recognition cannot simply distinguish law from non-law. He illustrated that law are identified by pedigree not by content. Dworkin argues that Hart's rule of recognition is to provide a body of rules which will be publicly ascertainable can only make sense if the rule of recognition identifies the law by pedigree. Legal principels, on the other hand, are not identified by pedigree and the pervasiveness of legal principles also falsifies the Discretion Thesis. This is because the legality of principles depends simply on their content. Thus, one would seek to show that the principle “no man shall profit from his own wrong” is an existing principle of the law when numerous specific legal rules embody the principles, the principle might be invoked as a general justification for the content of those rules in specific application of principle to diverse contexts. Dworkin alleges that the Pedigree Thesis must be rejected for two reasons. First, legal principles are sometimes binding on judges simply because of their intrinsic moral properties and not because of their pedigree. Second, even when these principles are binding in virtue of their pedigree, it is not possible to formulate a stable rule that picks out a principle based on its degree of institutional support.

Dworkin also differentiated between the operation of principles and policies where the legislature enacts law while judge makes judicial decision. He points out, principles protect individual or group right whilst policy forms the basis of a political decision which achieve collective goals of the community benefit. In cases like Spartan Steel and Alloys ltd v Martin & Co, judges should reach decision on grounds of principles but not grounds of policy because he emphasises that one's individual right should not be neglected for reason of public policy.

Dworkin describes an imaginary judge with “super-human skills” called Hercules. Hercules as a model of perfect judge in deciding hard cases begins by constructing a theory of law applicable “in its best light”. Hercuels does not seek to apply the soundest theory of law whether or not is accepted by other judges rather than the theory of law that is only accepted by his judges. A theory will be tested in two dimensions, fit and substance. “Fit” means fit with what is accepted as settled law while “substance” refers to concordance with substantive political morality.

Dworkin rejects Hart's “analytical” and “normative” jurisprudence distinctions in Law's Empire. He claims that legal theory, will be inseparable from the process of interpreting the law rather than simply “clarifying” our “concepts” because its objective is to offer a prescribe guidance. Dworkin argues for a “constructive interpretation” and an interpretive dispute can be divided into “pre-interpretive stage”, “interpretive stage” and “post-interpretive stage”. Dworkin sees legal theory as part of society's reflection upon the scope of a presumed duty to obey and apply the law.

Dworkin alleged the fundamenatal of “law as integrity” demonstrated what “judges ought to do”, equality of treatment and “fitness” as to the coherent decisions reach throughout the legal practice having regards all factors inherent. A society accepts integrity as a moral virtue to justify its moral authority to assume and deploy a monopoly of coercive force. More importantly, integrity promotes the ideal of self-government and participation in democracy. Dworkin cites McLoughlin v O'Brian to support his integrity where Lord Scarman seems to embody Hercules to a certain extent, yet the majority judges seems willing to balance policy consideration against a set of precedents concerning psychiatric injuries claims.

In objection to Dworkin's criticism published in Law's Empire, Hart altered some substances of his theory and inserted a “postscript” in The Concept of Law 2nd Edition. Hart responded to Dworkin's attack on his descriptive methodology incapability in establishing “an effective legal theory must consider the external point of view of all participant in the legal system” by stating that Dworkin had misunderstood it as a descriptive jurist only need to observe the internal point of view in a limited sense, and need not accept or agree that point slavishly.

Hart criticises Dworkin's reinterpretation of legal positivism as an interpretive theory of law termed “conventionalism” and rejects Dworkin's connection between legal theory in section 2 (ii) of the “Postscript.” In this guise, legal positivism emphasising “plain fact” criteria for the identification of law, is capable of justifying coercion puts those subject to the law on clear and fair advance notice of the occasions upon which such coercion will be employed against. Hart claims that Dworkin's reinterpretation approach is falsely presupposes because the law is the justification of state coercion; and hence any adequate theory of law must attempt to explain how and under what circumstances law can achieve this aim. Hart makes it clear in the “Postscript” that he does not regard the point of law as being to justify coercion and indeed states that he is wary of characterizing law in terms of its having one main point or function at all.

Dworkin insists that positivists must identify the law by “pedigree”, not content had been criticized by Hart. Hart is concerned to deny the existence of conceptually necessary connections between law and morality, he is not denying the existence of contigent connection between law and morality in the law system, even though Dworkin's Herculean adjudication captures the legal thinking character. Legal validity, established by a rule of recognition in each legal system is dependant upon criteria. He acknowledges that “In some system, the ultimate criteria of legal validity explicitly incorporate principles of justice or substantive moral values”, so this is definitely not “hard positivism” termed by Dworkin.

Dworkin attacked Hart for his ignorance of the existence of principles and claimed that the recognition rule should be abolished. Hart replied that there is strictly no need for an over-emphasized distunction between legal rules and principles. By citing Riggs v Palmer, Hart pointed out that it is a question about the range of application of rules or principles in jurisdiction process regarding when and where rules may prevail over principles, and vice versa. He nevertheless admitted his fault in failing to discuss the importance of principles more than the “variable legal standards” instead such discussion is “touched only in passing”. It remains very unclear why Dworkin has to persist in a very narrowed way when principles can be recognized by “pedigree” or “constructive interpretation”. Hence there is no need to abandon the recognition rule since judges can constructively derive principles from the process or simply “discover” them during tracing it by referral to the development and exercise of social practice.

Dworkin characterised Hart's theories as “semantic” law theories had produced “penumbral uncertainty” stemming from open texture of language as well as “the adoption of the position of soft positivism”. Semantic theories seek to reduce uncertainty by refining the relevant criteria at the borderline. Hart retorted that Dworkin had mischaracterization his theories, he does not see legal theory as concerned with the borderline concept: indeed, he insists that such borderline questions do not raise interesting philosophical issues. However, he conceded that the rule of recognition might have “penumbra of uncertainty” but it is a matter of degree as to how much of uncertainties can be tolerated from the possibility of any “significant advance from a decentralized regime of custom-type rules”.

Dworkin acknowledges that judges have a weak discretion and denies the existence of strong discretion. Judges do not make law because the existing law provides all the resources for their decisions. Regarding this, Hart responded that the law has left incompletely regulated where there is no known state of clear established law to justify expectations, especially in hard cases. Although Hart sees the function of law as being one of a system of rules, he maintains a firm belief that where there are gaps in the system judges should use their own discretion when applying the law. According to Hart, statutes and common law rules are often too vague and unclear, law in the area of open texture is a guarded prediction of what the courts will do between competing interests, which vary in weight from case to case, must leave much to be developed. Even if the rules are clear to all, the statement of it may often be made in the form of a prediction of the court's decision. Importantly, the courts regard legal rules not as predictions, but as standards to be followed in decision. When legal rules fail to determine a unique result, judges do not generally, intrude their personal preferences or blindly choose among alternatives. In case if there is any arbitrariness then legislature is always there to negate it down.

Having regard Hart's objection to Dworkin, it is observable that Dworkin had imposed his own web of ideology upon Hart to intersect or replace his own theories into Hart's theories. This subsequently form his fatal mistake in the issues discuss below since he had negligently or recklessly left some explicit and significant allegation made by Hart in total obligation.

Dworkin had misconstrued the rule of recognition according to soft positivists, and even by Hart himself where Dworkin sees Hart's recognition cannot include substantive moral standards among its criteria of law. Kramer charges Dworkin's misunderstanding of purpose and nature of recognition rule through Dworkin's error observation that judges share a high degree of common understanding in determine whether a rule is indeed a legal rule in both hard and easy cases. In other words, in attacking the rule of recognition for neglecting the interpretative divergences that exists between judges, such discrepancies “cannot go beyond the point where they would bring about substantial indeterminacy and erraticism in the law at the level of concrete results”.

One would suggests that Dworkin had inadequately defined “hard cases” because he failed to distinguish sufficiently a hard case from an easy case in his description as one in which lawyers would disagree about rights where no settled rule disposed of the cases and the rules are subject to competing interpretations. He is committed to view all cases as hard cases in his reasons that: to discover hard cases, Hercules must apply the “soundest theory”, principle reasoning is employed and must be used to identify hard cases, and Hercules is committed to view that all cases are “hard cases”. In addition, Hercules is objectionable because he is fabrication and myth, no real judges can act in his Utopian style. Some would also argue that Hercules is a politician rather than a judge because he substitutes political judgment for the politically neutral, correct interpretation of previous interpretation.

Judges do have discretion. Dworkin's contention that judges should not “find” principles instead of using their discretion to create new law is just wrong. In fact, as Hart rightly pointed out, judges are already creating a new law in choosing between competing principles, is the exact contemporary situation of judicial process. Joseph Raz has even suggested that Dworkin's view did not significantly differ from Hart. According to Raz, Dworkin has misstated the distinction between rules and principles.

A theory of law tells us what we ought to do, provided that we ought to obey the law. Both Hart's and Dworkin's theories are not so different when they do tell us what we ought to do, if we ought to obey the law. The distinction is that Hart clarify law nature with disengagement from moral debate whilst Dworkin, on the other hand, links moral understanding in deliberation on law's nature.

Dworkin's Law's empire did not really contradict Hart's theory, one might question that his pre-interpretive stage mean that we must begin with something like a rule of recognition before interpret them in the Herculean way. Readers would feel that he needed to rely upon something like Hart's theory therefore his own theory of interpretation was not a true rival of Hart's theory, but a mere supplement to it. Hart's positivism is clearly neutral on prescriptive issues since he only offered a theory of law's nature, not prescriptive theory of adjudication but for Dworkin, he offers a prescriptive theory of adjudication then simply mistakes it for a theory of law.

It would be possible to consider that Dworkin's theories seems too perfect and unrealistic in achieving it. However, one could not simply conclude that Hart's theories are sufficient to meet the demand of the contemporary society. Hart's substantive theory fails to provide a satisfactory analysis because Hart is committed to “methodological positivism” which holds that a theory of law should provide external description of legal practice that are morally neutral and without justificatory aims. M.J. Detmold pointed out that the Concept of Law failed to separate the analysis of sociological statements from bindingness and moral statement with the analysis of internal normative statements. Therefore, Hart's twin analytical ambitions of analyzing both the concept of law and its normativity cannot be achieved by adopting an external, purely descriptive approach.

To conclude this paper, what matter is which theory provides the most compatible guideline to the nature of law and adjudication process, a positivist's positivism or a naturalist's naturalism? Notwithstanding that one could suggest that Dworkin has erred in some of his contention and observe that Hart's theory has ensconces and withstand the charges, one should not simply ignore it because Hart's thesis is not perfect and leaves many loopholes. Even Hart now appears to accept that there may be moral reasons for conforming to the law, and a moral justification for coercion. Moreover, Hart is now willing to acknowledge that the rule of recognition “may incorporate as criteria of legal validity conformity with moral principles or substantive values”. Therefore, it would be elegantly plausible if Dworkin's theories are meant to supplement ad fill out the lacuna of Hart's theory. More significantly, it is always depends on the features of the society to strike out a complete structural theory which concurrent with the contemporary law, as the society is to be ever developing and changing, just like the law.