Hart-Dworkin Debate Research Articles

H.L.A. Hart's Lost Essay on Policies, Principles, and Adjudication

Abstract This introductory essay accompanies the publication of H.L.A. Hart’s “Policies, Principles, and Adjudication,” which I uncovered amongst Ronald Dworkin’s papers at Yale. Hart’s previously unpublished paper was composed between 1977 and 1982 and delivered at a seminar at Oxford. It offers an extended critique of Dworkin’s conception of “policies” in his Taking Rights Seriously. This critique is not reproduced elsewhere in Hart’s published work. The paper also provides an expanded version of Hart’s thoughts, in his “Postscript” to The Concept of Law, on judicial reasoning by analogy and the phenomenology of judicial decision-making. Hart’s essay adds significantly to our understanding of the so-called “Hart-Dworkin debate,” around which much of contemporary Anglophone jurisprudence continues to be structured.

How laws are interpreted can make a positive difference in de-normalizing violence: Revisiting the Hart-Dworkin debate

There are several long standing and interesting efforts to work for democratization in Latin America, including in public services sectors such as education. This includes notably efforts in which successful developments have drawn on the use of principles that align with post-structuralist discourses and interpretivist traditions in legal adjudication. The analysis presented in this article elaborates on the Hart-Dworkin debate in US legal philosophy and implications of positivist versus interpretivist approaches to legal decisions and education policy for professionals such as teachers in Latin America. The research question pertains to how two distinct approaches of legal interpretation impact the reproduction of cultural and structural forms of violence in societies. As a concrete example of this is discussed the impact that positivist and interpretivist legal traditions have by framing possibilities and limitations in the work of professional practitioners such as teachers. The analysis is contextualized using self-reported descriptive education data from Latin America and the Caribbean. Recent examples of empirical case studies relevant for education governance in Brazil and Chile are also noted. The analysis presented raises a few points about how effective organizations and professionals are constructed as an outcome of how laws are interpreted. This is explained as a contributing factor to normalizing practices in which the broader citizenry is excluded from deliberative practices. Such forms of exclusion have in the context of education been critically defined by scholars as a form of cultural violence. The article concludes by highlighting the role that interpretivist, negotiated and participatory approaches can play in enabling professionals involved in the everyday of citizens in local communities. An example of this is how teachers can work for de-normalizing socio-political forms of violence. Specifically, this article considers the normalization of structural violence that manifests itself in how we conceptualize what is an effective organization and what is the legitimate role of public service representatives such as teachers in de-normalizing structural violence.

The “Hart-Dworkin” Debate: Critical Capacity for Russian Legal Theory

This article is devoted to an analysis of the early arguments within the Anglo-American philosophical and legal discussion, known in the academic literature as the “Hart-Dworkin” debate. The key theses attributed by R. Dworkin to the legal positivism of H. Hart and his proponents are examined: the pedigree thesis, the discretion thesis, the obligation thesis and the separability thesis. R. Dworkin’s criticism of these theses, on the basis of legal positivists’ undervaluing of the role of legal principles, as well as the capacity of these arguments for reconsideration of the key assumptions of mainstream Russian legal theory, is characterized. The central statements of the exclusive (hard) and inclusive (soft) legal positivism as two strategies of reaction to R. Dworkin’s critique are analysed. The separability thesis is discussed through the framework of J. Coleman’s distinction between positive and negative versions of the positivist legal theory. The conclusion that the nature of the nexus between moral and legal norms has not been properly problematised in contemporary Russian legal theory and that the arguments in the Hart-Dworkin debate have critical capacity to challenge dogmatism on this issue is justified.

Legal Principles, Law, and Tradition

Legal reasoning and legal discourse take place within historical traditions that develop over time. Moreover, law is characterized by the past’s authoritative presence. This observation vindicates the basic positivist insight that law is ultimately grounded in social facts. Yet these social facts include the history of the legal tradition, the work and shared understanding of legal scholars, and the ostensibly moral reflections of legal participants. These aspects have been mistakenly left aside by legal positivists and their usual focus on coercive institutions. I use the Hart-Dworkin debate as a starting point for reclaiming the notion of law as a historically grounded practice. The debate highlights that philosophical reflection about law becomes impoverished without history. A closer look at history shows that both Dworkin and Hart were partially right. As Dworkin argued, law is not only a matter of purely source-based legal rules, but also incorporates principles with weight and a less straightforward connection to social facts. However, the ubiquity of legal principles and their operation show that a socially grounded conception of law, as the one defended by legal positivism, is entirely consistent with the existence of legal principles. At a deeper level, positivism is entirely consistent with moral argument taking place within legal institutions. But realizing this requires seeing law as a traditional and backward-looking practice that is partially constituted by the work of legal scholars, that depends on genealogy, and that constitutes a depository of human societies’ moral reflection. It also requires questioning the usual picture of morality in contemporary jurisprudence. Taking the historicity of law seriously, the Essay focuses on recent jurisprudential debates regarding the rule of recognition and eliminativism. While law is not a model of rules that rests on a simple master criterion of legal validity, and legal reasoning is not discontinuous with moral reflection, it nevertheless is, as Hart argued, ultimately grounded in social facts.

The History and Foundations of Criticism of H.L.A. Hart’s Legal Positivism in R. Dworkin’s Philosophy of Law

The paper discusses the Anglo-American philosophy of law of the 20th century, more specifically the philosophy of law of Ronald Myles Dworkin and his criticism of the legal positivism of Herbert Lionel Adolphus Hart. The author presents the history of the criticism of legal positivism in Ronald Dworkin’s philosophy of law and distinguishes historical stages. The subject of the study is the critique of legal positivism but not the Hart-Dworkin debate itself, well known in Western philosophy of law. The reason is that the discussion was conducted between Dworkin and Hart’s supporters but not between Dworkin and Hart by himself. The latter responded to the criticism only after twenty seven years. The article explains why Dworkin chose for his criticism Herbert Hart’s version of legal positivism. This is due to the fact that Dworkin highly appreciated Hart’s positivist theory of law and characterized it as the “most clear.” The article presents the methodological foundations of criticism of Hart’s legal positivism in Dworkin’s philosophy of law. It reveals a methodological divergence between the two legal theories, which directly affects the understanding of the concept of law and its content. Therefore, we can assume that the legal theories of Hart and Dworkin are two competing models of law: Dworkin’s model considers law as a set of rules and principles and Hart’s model acknowledges only rules and court decisions as a source of law. The article also presents the key principles of positivism criticized by Dworkin. These principles, firstly, interpret law as a set of legal rules determined through a special legal criterion, secondly, provide the judge with an opportunity to make a decision “at his own discretion” in a situation not regulated by law, and, thirdly, recognize only legal rights and obligations enshrined in legal regulations. It is important to note that in this article the author describes criticism as an independent phenomenon of legal philosophy with a particular focus on the history and foundations of this phenomenon.

Relendo o debate entre Hart e Dworkin: uma crítica aos positivismos interpretativos

Com este trabalho, pretendemos lançar uma crítica a variações atuais do positivismo jurídico. Para tanto, consideramos útil, ainda hoje, traçar a trajetória do debate Hart-Dworkin como espécie de espinha dorsal da teoria dworkiniana sobre o direito válido, apresentada na forma de ataque geral (general attack) ao positivismo jurídico. Na sequência, expomos brevemente a teoria de Dworkin e como ela encaminha a polêmica que segue hoje. Por fim, propomos uma reflexão a respeito da via interpretativa deixada aos positivismos.

The Debate that Never Was

The Hart-Dworkin debate, which is widely understood to have dominated jurisprudence since the late 1960s, is a philosophical fiction. Hart only responded to Dworkin's work in his Postscript to the Concept of Law (posthumously published in 1994), and although Dworkin wrote a rejoinder at the time, it had remained to this day unpublished. (It is now forthcoming in 130 Harvard Law Review.) What has really dominated the field is a debate between Dworkin and his critics. The critics have resisted Dworkin’s assertion that morality plays a fundamental role in the explanation of legal rights and obligations. It is, however, doubtful that the role of morality that the critics have been denying is the one that Dworkin asserted.

The Missing Link in the Hart–Dworkin Debate

The Missing Link in the Hart–Dworkin Debate

The Missing Link in the Hart–Dworkin Debate

The Missing Link in the Hart–Dworkin Debate

La reforma al derecho de la responsabilidad contractual: consecuencias específicas de la constitucionalización del Derecho Privado

<p>La promulgación de la Constitución de 1991 en Colombia ha generado una reforma fundamental en el Derecho colombiano. Se ha dado lugar a la <em>juridización </em>de la Constitución, antes considerada esencial- mente un programa político. Esta fenomenología ha dado lugar a una crisis de la concepción tradicional del derecho. Tal tendencia tiene que ver directamente con el debate Hart-Dworkin: el poder creador del juez, o la distinción entre reglas y principios. El régimen de la responsabilidad civil no ha sido ajeno a este proceso. Las perspectivas que se abren ante esta nueva realidad ofrecen interesantes oportunidades para modernizar el derecho de la responsabilidad ante las nuevas realidades sociales y económicas.</p>

A Crítica de Dworkin ao Positivismo Jurídico e a Construção do Conceito de Discricionariedade

Conhecido como Debate Hart-Dworkin, o entrechoque de opiniões entre esses dois autores gerou intensa discussão acerca do positivismo jurídico e das teorias que buscam refutar suas teses fundamentais. Neste contexto, Ronald Dworkin se empenha em repreender a doutrina positivista demonstrando que as noções elementares dessa teoria não são capazes de produzir uma doutrina eficaz sobre a natureza do direito. No presente artigo, pretendo analisar as críticas lançadas por Dworkin ao positivismo jurídico e às conceituações de Herbert Hart, com específica atenção para o conceito de discricionariedade que Dworkin imputa ao positivismo. A partir de uma discussão teórica envolvendo as principais obras desses autores, procuro confirmar a hipótese de que a teoria positivista moderna não está comprometida com o sentido atribuído por Dworkin à noção de discricionariedade, prejudicando assim o fundamento da crítica de Dworkin acerca da interpretação no positivismo jurídico. Ao final, irei considerar também a gravidade desta vicissitude para a teoria dworkiniana como um todo, avaliando se as críticas de Dworkin restam comprometidas ou resistem a este empecilho.

Da li sudije stvaraju pravo? - Debata između Harta i Dvorkina

This paper analyzes one of the issues that were part of the Hart-Dworkin debate. This is an issue whether the judges, by applying legal principles, create or discover the law. In order to get an answer, it is necessary to determine where the difference between legal principles and legal rules is, and what is their relationship. By analyzing the viewpoints, in particular Hart's and Dworkin's, we come to the conclusion that a key difference between legal rules and legal principles is the level of generality and that legal rules may be in a conflict, after which one of them shall cease to exist. As far as the relationship between legal principles and legal rules is concerned, we may conclude that legal principles are the mean of interpretation of legal rules. It is also demonstrated how application of different legal principles to the same case may result in different, even controversial solutions. This situation imposes a question whether the judges, by applying the legal principles, only discover or create law. This issue is especially important in cases where the legal rules do not offer single or any solution. In these situations we think that the judges create law to the extent to which they are free to choose one of the several legal principles that lead them in decision making, since the content of this decision, as it was illustrated in this paper through the examples from the practice, may occasionally differ, depending on the principle to which the judges opted for.

Die Hart-Dworkin-Debatte als Grundlagenkontroverse der angloamerikanischen Rechtsphilosophie

2011 marks the 50th anniversary of the publication of H. L. A. Hart’s The Concept of Law - a milestone in the development of legal positivism. The book gained its broad influence particularly through the early critique by Ronald Dworkin. Five decades later the Hart-Dworkin debate still constitutes the discursive centre of Anglo-American legal philosophy. Multiple factors add to the persistent dynamic of the debate, including the multilayered critique of Dworkin himself, but also the broad and controversial reception of Dworkin’s theoretical counter-conceptions of law as a system of rules and principles and „law as interpretation“. Perhaps most importantly, in response to Dworkin the competing schools of inclusive and exclusive legal positivism emerged in simultaneous defense and modernization of the Hartian tradition. The relation of the Hart-Dworkin debate to German legal philosophy is marked by ambivalences. Although the philosophy of Gustav Radbruch played an important role in the formation phase of Hart’s theory, the discursive link weakened over the years, mainly due to the discourse-shifting influence of the substantial features of the German Grundgesetz of 1949.

Una Visita al Debate Hart – Dworkin (Revisiting Hart – Dworkin Debate) (in Spanish)

Hart-Dworkin Debate is the biggest academic obsession of current jurisprudence. In this paper, I revisit the debate to make it understandable for a Latin American Reader. I refer to particularly three points: First, what is the origin and meaning of the debate. Second, the problems of the reception in Latin America, in particular, the bad translations. Third, I suggest a promising view to see this debate in the future.

The "Hart-Dworkin" Debate: A Short Guide for the Perplexed

For the past four decades, Anglo-American legal philosophy has been preoccupied – some might say obsessed – with something called the “Hart–Dworkin” debate. Since the appearance in 1967 of “The Model of Rules I,” Ronald Dworkin's seminal critique of H. L A. Hart's theory of legal positivism, countless books and articles have been written either defending Hart against Dworkin's objections or defending Dworkin against Hart's defenders. Recently, in fact, there has been a significant uptick in enthusiasm for the debate from its already lofty levels, an escalation no doubt attributable to the publication of the second edition of The Concept of Law , which contained Hart's much anticipated, but alas posthumous, answer to Dworkin in a postscript. Predictably, the postscript generated a vigorous metadebate about its cogency, with some arguing that Hart was wrong to reply to Dworkin in the way that he did and others countering that such criticisms of Hart are unfounded. In this essay, I will not take sides in this controversy over Hart's reply to Dworkin. I will be interested, rather, in a more preliminary matter, namely, in attempting to set out the basic subject matter of the debate. My chief concern, therefore, will be to identify the core issue around which the Hart–Dworkin debate is organized. Is the debate, for example, about whether the law contains principles as well as rules? Or does it concern whether judges have discretion in hard cases?

The Methodology of Jurisprudence: Thirty Years Off the Point

This essay considers the growing interest in the methodology of jurisprudence in the context of a broader examination of the relationship between legal theory and the practice of law. Attention is drawn to the particular puzzles of how theory can both be independent of and yet inform practice, and how methodology can take a similar stance towards theory. Through a detailed analysis of the methodological positions adopted by Dworkin, Raz, and Coleman and Simchen, the conclusion is reached that methodology is not a resource capable of offering an independent assessment of the merits of competing theories.Mainstream jurisprudential discussion is traced through the Hart-Dworkin debate to assumptions on the relationship between theory and practice initially adopted by Hart and sustained by subsequent contributors. The morbid condition of a prominent part of contemporary jurisprudence is identified with an unwarranted elevation of theory over practice. A more fruitful role for theory is suggested, in expounding the controversies met in the practice of law and considering the potential that exists for resolving them. It is suggested that this approach breaks down an artificial divide between descriptive and normative jurisprudence.A number of ancillary matters are discussed in the essay including: semantic (and metasemantic) approaches to legal theory, Dworkin’s semantic sting, the distinction between methodological and theoretical elements of Law's Empire, Dickson on the ‘indirectly evaluative approach’, the position of Hart in his Postscript, and Raz's split theory of legal reasoning and law.

Leaving the Hart-Dworkin Debate

Leaving the Hart-Dworkin Debate

Contested Concepts and Hard Cases

Previous articleNext article No AccessContested Concepts and Hard CasesThomas D. PerryThomas D. Perry Search for more articles by this author PDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by Ethics Volume 88, Number 1Oct., 1977 Article DOIhttps://doi.org/10.1086/292053 Views: 18Total views on this site Citations: 3Citations are reported from Crossref Copyright 1977 The University of ChicagoPDF download Crossref reports the following articles citing this article:ANDREW BOON LEONG PHANG Jurisprudential Oaks from Mythical Acorns: The Hart-Dworkin Debate Revisited, Ratio Juris 3, no.33 (Dec 1990): 385–398.https://doi.org/10.1111/j.1467-9337.1990.tb00068.xStanley C. Brubaker Taking Dworkin Seriously, The Review of Politics 47, no.11 (Aug 2009): 45–65.https://doi.org/10.1017/S0034670500037748Ruth Gavison Taking Rights Seriously. By Ronald Dworkin [Harv. U.P., 1977, enlarged edition, 1978]., Israel Law Review 14, no.33 (Feb 2016): 389–397.https://doi.org/10.1017/S0021223700006427