Postscript

Part 1 (The Nature of Legal Theory):Hart started his postscript by saying that he will attempt to reply to some of the criticisms present by Professor Dworkin in the latter’s different works such as Taking Rights Seriously, A Matter of Principle, and Law’s Empire.What Hart established in the book is to provide a generaland descriptivetheory of what law is, meaning it is not tied to any legal system or culture, but seeks to give an explanatory and clarifying account of law. Hart gives focus on the presence of the salient features of a municipal legal system and has the aim of giving a morally neutral descriptionof law. With this, recurring concepts were mentioned such as duty-imposing rules, power-conferring rules, rules of recognition, rules of change, and more. These concepts are ever present on a variety of legal institutions and legal practices, which were ultimately analysed in the book. Questions that were thrown include What are Rules? How do rules differ from mere habits? What is it for rules to form a system?

From this, Hart says that by using a general and descriptive way to define what Law is, it comes to show that this is radically different from that of the Dworkin’s conception of Legal Theory (or jurisprudencein his own terms). Dworkin’s work is focused on one particular legal system, which was his own, and not considering that of other’s. Dworkin’s theory focused on it being interpretative, since it fits with the existing and settled law and legal practices of a legal system. After mentioning this, Hart says that there is no true conflict with his work and that of Dworkin’s given that they are focusing on different aspects of legal theory, where his is broad and Dworkin’s is specific. Hart says, I am not concerned to dispute his elaboration of these interpretive ideas except in so far as he claims that positivist legal theory such as that presented in this book can be illuminatingly restated as such an interpretive theory.

However, there is a contention from Hart when Dworkin rules out general and descriptive legal theory as misguided. Dworkin is saying that legal theory must be specific including the time that is being studied. Dworkin’s objection is that legal theory must take account of an internal perspective on the law which the viewpoint of an insider in a legal system, and that no account of this internal perspective can be provided by a descriptive theory. Hart answers back by clarifying that the internal perspective is essential to his theory as well, but he submits that a descriptive legal theorist does not share the participants acceptance of the law in these ways, BUT he can sure describe what acceptance is.

While Dworkin focused on the internal perspective, Hart claims that Dworkin ruled out the obvious possibility of an external observer. Dworkin argues that legal theory or jurisprudenceis part of the law itself, therefore only participants can see what lawmay be. In response, Hart says that even if acceptance is manifested by the internal participants, they still believe that there is a moral imperative as to why they are supposed to follow these rules. 

Dworkin conceded that interpretation is not the only proper issue for jurisprudence, as he earlier argued. Instead, he said that his statement should be qualified, since this is only true of jurisprudence about the question of sense.This correction was welcomed by Hart, as he said that the prior statement was extravagant and imperialist. Even with this revision of statement, Hart still appears dubious with the caution Dworkin added: But it is worth stressing how pervasive that question [of sense] is in the issues that general theories have mainly discussed. Hart says that it would be a serious error to suppose that the judges’ decisions were mere interpretive and evaluative, and had already shifter from being descriptive. Description may still be description, even when what is described is an evaluation.

Part 2 (The Nature of Legal Positivism):(i) Positivism as a Semantic Theory:Hart starts this part by illuminating Dworkin’s contention to his work as a departure from earlier versions of legal positivism, such as those of Bentham and Austin. Dworkin argues that there are errors in 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, which Dworkin calls as the grounds of law. Dworkin devoted his criticism of legal positivism to showing that theoretical disagreement as to what constitutesthe grounds of law is, contrary to the positivist’s view, a prominent feature of Anglo-American legal practices.

Dworkin presented two different accounts of how it is that positivists have to adopt their radically mistaken view. First, positivists believe that if what the grounds of law are was not uncontroversially fixed by rules, but was a controversial matter allowing theoretical disagreements, then the word ‘law’ would mean different things to different people using it. Hart says that this belief by Dworkin is wholly mistaken because it rests on a theory about the meaning of the word Law. Hart defends his theory by stating the way he developed his doctrine by starting with the concept of municipal legal systems containing a rule of recognition specifying the criteria for the identification of the laws which that court may apply. It is a mistake to assume that Hart based this doctrine on the idea that it is part of the meaning of the word Lawthat there should be such a rule of recognition in all legal systems. This then confuses the meaningof a concept with the criteria for its application. 

According to Hart, Dworkin’s argument against his theory lies in his claim that legal coercion is only justified when it conforms to conventional understandings, which Hart talked about in Chapter 5 of the book. In that chapter, Hart talked about the secondary rules of recognition, change, and adjudication as remedies for the defects of an imagined simple regime consisting only of primary rules of obligation. Hart defended his theory by saying that although he presented such ideas, he did not make any claim that legal coercion is only justified when it conforms to these rules. The justification of coercion to which the rule of recognition contributes therefore cannot be represented as its general point or purpose, still less can it be represented as the general point or purpose of the law as a whole. Hart says that nothing in his theory suggests that it can.

(iii) Soft Positivism: The next criticism that Dworkin focused on is his attribution to Hart of a doctrin og plain-fact positivism. This has mistakenly treated Hart’s theory as not only requiring that the existence 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 which the rule provides should consist exclusively of the specific kind of plain fact which he calls pedigree. Hart says that this is mistaken for two reasons. First, Hart’s theory ignores the fact that the rule of recognition may include conformity with moral principles. Hart calls this soft positivism, instead of plain-fact positivism, which Dworkin is insisting on. Secondly, Hart never mentioned that pedigree is the sole criteria for the rule of recognition. He says that, they may instead be substantive constraints on the content of legislation.

Another fundamental criticism that Dworkin presented is that there is a deep inconsistency between soft positivism and the general positivist picture of law as essentially concerned to provide reliable public standards of conduct which can be identified with certainty as matters of plain fact without dependence on controversial moral arguments. Hart says that this is exaggerated as to both the degree of certainty usually attributed to a positivist, and the uncertainty which will result if the criteria of legal validity include conformity with specific moral principles or values. Hart defends his doctrine by saying that complete uncertainty is not the goal of his theory, thus conceding that uncertainty will always be part of legal theory and the concept of rule of recognition. He said this explicitly in the book when he mentions that the Rule of Recognition entails with it a certain degree of penumbraor uncertainty. He then conceded that a certain degree of uncertainty can be tolerated – and is actually welcome – so that an informed judicial decision can be made.

Dworkin’s second criticism concerns the determinacy and completeness of law. Hart, to answer this criticism, introduced in the book the concept of open textureand hard cases, where a given rule applies to a certain case the law fails to determine an answer, thus rendering it incomplete. Dworkin rejects the idea of an incomplete law since it leaves gaps to be filled by using law-creating discretion. For Dworkin, if there is a disagreement in the in application or interpretation of law, there is no way to determine what is true or false. Hart, on the other hand, says this is a mistaken belief since even in the inception of a law or rule, there is not certain way to determine what is true or false. The argument for an interpretation to be true can be superior than the one ascertaining it to be false, or the situation could be reversed where the argument for falsity is superior. Given all these, Hart declares that he understands where Dworkin is coming from since the latter leveraged his theory on the importance of moral judgments, and since for Dworkin moral judgments are essentially controversial, so are all propositions of law.

Another inconsistency pointed out by Dworkin involves his contention that morality is not only inconsistent with the positivist pictureof law as identifiable with certainty, but inconsistent also with the wish which he attributes to positivists to make the objective standing of propositions of lawindependent of an commitment to any controversial philosophical theory of the status of moral judgments. Hart did not directly answer this contention, but he does declare that legal theory should leave open the general question of whether they have what Dworkin calls objective standing; it doesn’t matter whether a judge is making a decision based on his or her moral understanding. As supported by Raz, whenever the law requires for a certain moral standard to be used, it is merely a direction to make a new law; it does not convert morality into pre-existing law.

Part 3 (The Nature of Rules):(i) The Practice Theory of Rules:Hart calls the theory of the distinction between internal and external statements of law and between internal and external aspects of law as the Practice Theory of Rulesbecause it treats the social rules of a group as constituted by a form of social practice comprising both patterns of conduct regularly followed by most members of the group and a distinctive normative attitude to such patterns of conduct. For this criticism, Hart agreed to some points made by Dworkin and had conceded to modify his original account. The first modification is on the difference between a consensus of a conventionand that of independent convictionmanifested in the concurrent practices of a group, the latter being the individual choices made by the people involved in the group. 

The second modification is regarding Dworkin’s claim that the theory is only applicable to rules which are conventional in the sense of what was talked about in the book. This considerably narrows the scope of practice theory, and Hart now regards this asnot a sound explanation of morality, either individual or social. Dworkin’s central criticism of the practice theory of rules is that it mistakenly takes a social rule to be constituted by its social practiceand so treats the statement that such a rule exists merely as a statement of the external sociological fact. Dworkin’s contention is that a normative rule with the features introduced by Hart can only exist if there is a certain normative state of affairs. Hart argues that this cannot be the case since this would entail injustice and inequity if rules that are punishable are only based on the normative state of a society. An example he gave was that of the people removing their hats in the Church, where it has become the norm to do such actions. Finally, Dworkin argues that the practice theory of 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. To answer this, Hart says that there is a misunderstanding on the function of the rule by saying that Dworkin assumed that the rule is meant to determine completely the legal result in particular cases. This is not the case because the rule merely constructs general conditions which correct legal decisions must satisfy, and notto predict the actual outcome of decisions. If the latter view is accepted, then the rule of recognition and the practice theory of rules do not conflict.

The third modification Dworkin is proposing on Rules and Principles, where Dworkin is saying that the book mistakenly represents law as consisting solely of all-or-nothingrules, and ignores a different kind of legal standard (legal principles). Hart answered this simply by saying that the concept of legal principles could easily be integrated as a component of a legal system. Dworkin then further argues that this is not consistent since if legal principlesis part of Hart’s theory, then it does not follow to retain the central doctrines of the theory. Here, Hart concedes that he said little about this topic, particular in relation with adjudication and judgment, in his book, and thus agree that it is a defect of the book that the topic was merely mentioned in passing. Dworkin argues that there are differences between legal principles  and legal rules, where the latter he considers as an all-or-nothingkind of thing. According to Dworkin, legal principles differ from these because when they are applicable, they do not necessitate a decision but point towards or count in favor of a decision(which Hart calls thenon-conclusivecharacter of principles). The main difference then lies on the relativity of a decision being made, instead of it being an absolute yes or no, black or white. Hart, though, says that he cannot accept such differences as to say that legal principles and legal rulesare so much different. He said that a rule may be superseded by a more important rule in a given case may, like a principle, survive to determine the outcome in other cases where it is judged to be more important than another competing rule. According to Hart, this contention may be cured if we consider that the distinction between all-or-nothing rules and non-conclusive principles is a matter of degree, meaning they may co-exist with each other. Certainly, a contrast can be made, but this is not the case in all scenarios.

Part 4 (Principles and the Rule of Recognition):Pedigree and Interpretation: Dworkin’s main argument for this topic is that the doctrine of a rule of recognition should be abandoned because legal principles cannot be identified by the criteria set by it. According to Dworkin, legal principles may only be identified by constructive interpretation as members of the unique set of principles which both best fits and best justifies the whole institutional history of the settled law of a legal system.On the other hand, Hart contends that the focus on constructive interpretation has led Dworkin to ignore the fact that many legal principles actually owe their status not to their content serving as interpretation of settled law, but to what he calls their pedigree – the manner of their creation and adoption.Hart says that this is wrong in two ways, namely that it is wrong to assume that legal principles cannot be identified by their pedigree, and that a rule of recognition can only provide pedigree criteria. Basically, Hart is saying that although there are some instances where legal principles may be identified as law by pedigree criteria provided by a rule of recognition, there are more numerous principles that do not fit such description. 

Given these arguments by Hart, it can be said that the acceptance of principles as part of the law is consistent with the doctrine of a rule of recognition, even if Dworkin’s interpretive test were the sole appropriate criterion for identifying them. Hart even mentions that the rule of recognition is actually necessary if legal principles are to be identified by such criterion. Hart then proceeds to identify some differences between his book and that of Dworkin’s Law’s Empire. For one, he said that he ascribes the general agreement among judgments as to the criteria for the identification of the sources of law to their share acceptance of rules. On the other hand, Dworkin speaks of a consensusand not that of rules, where Dworkin reiterates that rules and consensus are two different things. However, in the end, Hart says that Dworkin’s interpretation of consensuscould be substantially the same as his understanding and meaning of rulesin his book, though there are still differences altogether. For one, Dworkin – which Hart disagrees to – presents the identificationof law as a central feature of much social thought and social practice besides the actual law itself. Hart however says that since there are no actual legal systems where this full holistic criterion is used, but only systems like English law and American law, the only question then to be considered is whether such exercises are to be understood as the application of a criterion provided by a conventional rule of recognition or in some other way, and if so what their legal status is.

Part 5 (Law and Morality):(i) Rights and Duties:In the book, Hart argued that since there is no necessary conceptual connections between the content of law and morality, therefore morally iniquitous provisions may be valid as legal rules or principles. This means that law and morality  can be separated from each other and can coexist with each other. Dworkin, on the other hand, believes otherwise, by saying that there should be a moral ground from which a legal right or duty can be enforced, and believes that if this was not the case, then we fall into the idea of legal essentialism. Again, Hart reiterated that he does not agree with this notion, since even if laws are morally good or bad, just or unjust, rights and duties demand attention as focal points in the operations of the law which are of supreme importance to human beings and independently of moral merits of the laws.

(ii) The Identification of the Law:Hart calls the identification of the lawas the most fundamental difference between his and Dworkin’s understanding of the connection of law and morality. For Hart, laws come from social sources such as legislation and judicial decisions even without concerning that of morality. On the other hand, Dworkin works with the idea that all laws necessarily involves moral judgment. To this, hart said that Dworkin’s theory was vulnerable to the criticism that where the law is morally iniquitous, principles providing the best ‘justification’ for it could only be the least iniquitous of principles fitting that law. According to Hart, Dworkin’s proposition that principles which passes what the latter calls background moralitymay indeed provide limits to what counts as law, is actually fully compatible with Hart’s claim that the law may be identified without reference to morality. Due to the concept of preinterpretivelawintroduced by Dworkin himself, those morally iniquitous laws (such as the rule of the Nazi), though, as mentioned, morally iniquitous, is still considered law by Dworkin. The said law may be so evil that internal skepticism is in order, in which case the interpretation of the law involves no moral judgment and interpretation as Dworkin understands it must be given up. Dworkin himself recognized that even where the system is so morally iniquitous or there is no moral or justifying interpretation of law as a whole is possible, there may still be situations where individuals may properly be said to have rights with at least prima-facie moral force. Dworkin qualifies this by saying that these kinds of laws’ moral force must flow from a general interpretive theory of the law.

Part 6 (Judicial Discretion):With regards judicial discretion, Hart says that he conceives of a scenario where pre-existing laws are not compatible with a case, therefore rendering incomplete or indeterminate laws. If this scenario arises, it is but right for judges to fill the gaps by exercising limitedlaw-exercising discretion. This notion is rejected by Dworkin as he claims that what is incomplete is not the law but the positivists’ picture of it. Dworkin argues that besides the explicit law, there lies implicit legal principles which both best fit and cohere with the explicit law, and ultimately provides the best moral justification for it. This makes law then as never considered incompleteor indeterminate. Hart clarifies that this discretion is very much limited when compared to actual legislative powers. Judges cannot arbitrarily introduce new codes, as they are only tasked to fill in small gaps where existing laws do not fit. With this, Dworkin presented three main criticisms.

First, Dworkin believes that this is a false description of the judicial process and what courts do in hard cases. Dworkin says that lawyers do not face judges considering their cases as actual hard cases. Instead, they face judges as always concerned to discover and enforce existing law, and the judges speak as if the law were a gapless system. Hart then throws the question, how seriously should this scenario be taken?It has been said time and time again by countless jurists such as Oliver Wendell Holmes, Cardozo, Lord Reid, and more that there really are cases which are left incompletely regulated by the law, where the judge is left with the task to exercise limited law-making powers. Hart further elucidates by saying that although what the judges make are considered new law, it should be noted that these new laws are based on analogous to and in accordance with the interpretation of existing laws. When creating them, judges start with a general principle already laid out in existing law, and proceeds with some considerable area regarding the hard case.

Second, Dworkin condemns the doctrine for endorsing a form of law-making which is undemocratic and unjust, since judges are not elected to do legislation. Hart answers this criticism in two ways, namely that judges need this limited law-making powers to fill in gaps with existing law, and that the distribution of such limited power is akin to that given to the executive department. Added to this, Hart says that if the legislature finds the created law to be unjust, they can legislate their own law which would ultimately overturn that that was made by the judiciary.

Lastly, Dworkin makes the accusation that judicial law-making is unjust and considers it as a form of retrospective orex post factolaw-making. Hart simply said that this will never be the case since the limited law-making power to be exercised by the judiciary is only limited to hard cases. This means that there is actually no established law in the first place that would lead the new law to be considered ex post facto.