Essay: Dworkin’s criticism of Hart’s positivism

H.L.A. Hart, a legal positivist, describes his view of law as a model of rules, more specifically, primary and secondary rules. Primary rules are rules that govern behavior whereas secondary rules are rules that allow the fabrication, modification, or elimination of said primary rules. An example of primary rules are those regarding our criminal law which include the outlaw of murder, rape, robbery and speeding while driving. An example of a secondary rule is how congress chooses to enact legislation, also the execution of wills and contracts because these are power-conferring rules, which mean that they contain no sanction or legal obligation attached to it. Dworkin, a natural law theorist, criticizes Hart’s positivist jurisprudence.
A legal positivist like Hart, believes in the separation between law and morality, and a natural law theorist like Dworkin, believes that legality and morality are interconnected. Focusing on the relation between legality and morality, Dworkin attacks Hart’s positivist concept of law by using the concept of judicial discretion. Judicial discretion is an official, more specifically, a judge, who reaches “beyond the law for some other sort of standard to guide him in manufacturing a fresh legal rule or supplementing an old one” (pg. 17). The way that Dworkin attacks positivism with judicial discretion is by using hard cases. Hard cases are cases in court in which a rule of law is not applicable.
Dworkin states that “my strategy will be organized around the fact that when lawyers reason or dispute about legal rights and obligations, particularly in those hard cases when our problems with these concepts seem most acute, they make use of standards that do not function as rules, but operate differently as principles, policies, and other sorts of standards. Positivism, I shall argue, is a model of and for a system of rules, and its central notion of a single fundamental test for law forces us to miss the important roles of these standards that are not rules.”(pg. 22-23). With this, Dworkin is providing the reader this view that the law and people that uphold that law (i.e. lawyers, judges, etc) are malicious and out to strictly punish with the judge’s use of discretion instead of the use of principles. Dworkin wants the law to both include rules and principles because principles serve as the moral context whereas rules do not.
An example of two hard cases that Dworkin uses to back up the inclusion of morality or principles within rules, is Riggs v. Palmer and Henningsen v. Bloomfield Motors Inc. In Riggs v. Palmer, the court had to decide on a verdict whether an heir of his grandfather’s inheritance could receive the inheritance despite the fact that the grandson poisoned his grandfather to obtain it. Since there was no set rule that specifically stated what to do when a will is inherited due to murder, the court came to the reasoning that some rules can be affected by other standards beyond rules or “penumbras”, which in this case includes that no person shall acquire money or property due to his own wrongdoings. Same thing in Henningsen v Bloomfield, dealing with how much liability a car manufacturer, in this case Bloomfield, uphold himself to in case the car is defective. There was no rule of law that prohibited the Bloomfield from standing on the contract signed by the plaintiff, which is Henningsen. The court’s verdict nevertheless went in favor of Henningsen. According to Dworkin, this was because the court appealed to standards, more specifically, principles, instead of a rule of law. With these cases, Dworkin argues that principles not only bring forward morality into rules of law but there can be no law if there’s no way to distinguish rules and principles. Therefore stating that 1. law is not law without principles 2. The law does not contain principles 3. Therefore, it is not law. Principles, according to Dworkin, being “a standard that is to be observed, not because it will advance or secure an economic, political, or social situation deemed desirable, but because it is a requirement of justice or fairness or some other dimension of morality”(pg. 23). More simply, Principles give support to decisions when the rules are black and white and a rule is a way of determining what behavior will be punished under those rules of law.
My critique of Dworkin’s premise if that it is a dangerous to have that mindset regarding the law. If a citizen’s morals don’t align with the rules of law then that shouldn’t give them a free pass to disobey it. H.L.A. Hart’s concept of the model of rules is more attractive and applicable universally because not everyone’s morals are going to be the same and therefore the law cannot please every single person. Hart departs from Dworkin by diverging from morality and instead look to social facts. Social facts are facts about people, what they believe, have said and done. This is important because social facts allows the law to be interpretive and also reliable on precedent or experience rather than morals or politics.
One point that Dworkin makes is that if judges use their judicial discretion to legislate, then the parties whose cases are being punished or rewarded are based on the law that is made after they did the things act that brought them to court. This is known as ex post facto legislation. Ex post facto simply means the making of prior conduct criminal by the legislation. Dworkin asks, how can we require a person to comply with a law that doesn’t exist until after? It’s not that judges want to use their judicial discretion to impose brand new rules just for the sake of it, but rather because when presented with a hard case they’re obligated to.
Dworkin seems to forget that impartiality can be a part of judicial discretion and hence the interpretation of rules. Lawyers and judges don’t have to pick sides with Hart and Dworkin in order to do their job with the highest professional standards. A judge can apply a just verdict or sentence by simply understanding the practice of the laws in courts. At the same time, in hard cases when the use of judicial discretion is needed, partiality can sometimes be inevitable. Dworkin makes lawyers and judges out to be deviant by using their discretion for their own self-interest when in reality, interpretation is just a part of our court system and judges are legally obligated to reach beyond the law for extralegal norms. Extralegal norms means outside the scope of the law. Rules of law cannot be molded specifically for every case an individual in a community may have, hence having judicial discretion.
Dworkin’s problem is that he assumes the general public won’t find out about the true nature of which the law is representative of which is predominantly to do good and avoid wrongdoing. If every lawyer is truly out to get people, then I figure most people would catch up with this unconstitutionality especially officials that enforce the law. If judges were using judicial discretion to repair the law, then most decisions made would go very differently. For example, in Riggs v. Palmer, the defendant did not receive the inheritance due to the fact that he was profiting off his wrongdoing. However, there are many cases where people profit legally from their wrongdoings (e.g. adverse possession). This being the case, a judge would “fix the law” by upholding every other wrongdoer that profits of their own fraud up to the same standards as Riggs so that there will be no more of those people getting away with it legally. This of course, isn’t the case.
In conclusion, Dworkin’s criticism of Hart’s positivism, including judicial discretion and morality, has its flaws. Judicial Discretion is not a malicious act from our judges and lawyers but rather a legitimate and at times inevitable. Hand in hand, legality and morality are better off separate since not everyone’s morals are going to be in accordance with the rules of law. In the end, I believe Dworkin’s criticism was all in good faith since these very criticism allow for us to evaluate the validity of our legal rules more with a more analytical eye and also help to better sculpt the structure of our legal system.