Jurisprudence Hart vs Dworkin PDF

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Compare and contr contrast ast Hart and Dworkin’ Dworkin’ss respective views on how judges should decide difficult cases before them. W Which hich view do you find most persuasive a and nd why? In his article “The Model of Rules 1”1 Dworkin first attacked the positivist legal theory advocated by Hart in “The Concept of Law.” In chapter VII of this book Hard develops a theory on how judges decide hard cases. Dworkin claims that Hart’s view is wrong and asserts that the Hartian model cannot account for what he called “legal principles.” Firstly, I will outline and compare Hart’s Open texture model and Dworkin’s “rules and principles” model respectively as found in their early works. I will then show that Dworkin’s later, more refined criticism poses difficulties to Hart’s view of judicial discretion that Hart fails to adequately discharge. In conclusion therefore Dworkin’s assessment of judicial behaviour in hard cases is more convincing.

In “The Concept of Law” Hart develops the theory of what he calls “open texture” of legal rules 2 What he means by that is that legal rules can not, and indeed should not, authoritatively determine the outcome in every possible case in advance. The language of legislation, an indeed precedents, will only be easily applicable to plain cases. The indeterminacies in the law, argues Hart, are desirable because human beings are fallible and cannot predict any possible future circumstances and can therefore not ab initio decide whether or not such a case should be included in the rule. “The rigidity of our classification will thus war with our aims in having or maintaining the rule” 3 As a result, it is better when the law leaves room for future determination of cases. In hard cases a judge is faced with the question “whether the present case resembles the plain cases ‘sufficiently’ in ‘relevant’ respects.”4 The judge in such a case has discretion, which is “in effect a choice”5 whether to add the new case to those falling under the rule. He should exercise this discretion in deciding whether the facts of the case are sufficiently close to prior cases decided under the rule and having in mind the initial aim of the legislation or precedent. In some cases “much must be left to be developed by courts…striking a balance, in light of the circumstances, between competing interests.”6 Hart uses the example of a rule prohibiting the use of vehicles in the park and the decision whether toy cars should fall under the rule. In this case a judge would have to weight the initial aim of the rule (peace in the work) with the competing interest of the child to be able to play. In general Hart concluded the law is largely settled but “at the margin of rules…the courts perform a rule-producing function which administrative bodies perform centrally”7 and this is so as much as judges try to obscure the creative practice with references to interpreting the legislative intent and construction of pre-existing law. Dworkin rejects the Hartian notion of discretion and asserts that judges do not have a “choice” in deciding difficult cases. He argues that Hart overlooked the importance of legal principles. Legal 1

Reprinted in Taking Rights Seriously (1977) The Concept of Law, p.128 3 Ibid. p.130 4 Ibid. p.127 5 Ibid. p.127 6 Ibid. p.135 2

7

Ibid. p.135

principles are also part of the law but as opposed to rules they do not operate in an “all-or-nothing” fashion but it is possible that they compete with each others. Moreover principles have a relative weight, i.e. one might be more important than the other, and their relative importance depends on the circumstances of the case. In hard cases therefore judges do not resort to extra-legal reasoning but decide the matter as a matter of principles that are in essence moral rules. Dworkin asserts that principles, just as rules are binding in that “officials must take [the relevant principle] into account, as a consideration inclining in one direction or the other.”8 The judge is under a duty to consider relevant principles, a duty that is equivalent to applying a relevant rule.9 Dworkin disarms two further positivist

criticisms. First he argues that while a single principle might not be capable of dictating an outcome a set of principles can since they have relative weight and if a judge concludes that one is more important than the other he must decide accordingly. That is different from having discretion 10 Secondly, Dworkin concedes that validity of principles and their respective weight cannot be demonstrated with reference to identifying their origin as a valid legal source. The weight is determined by interpretation of a community practice and legislative and judicial history. The fact that the judgment might be controversial does not mean it is discretionary. Dworkin argues elsewhere that a judge must “bring to his decision a general theory of why, in the case of his institution, the rules create or destroy at all, and he must show what the general theory requires in hard cases.”11 The judge thus does not decide in a legal vacuum unconstraint by any binding principles but against the background of legal history from which he has to deduct the right outcome of the case. Hart, in response to Dworkin12, accepts that what Dworkin calls “principles” are part of the law and rejects that view attributed to him that he argued otherwise. Hart acknowledges that “legal validity [may include] conformity with moral principles.” 13 That does however not alter the fact that the “law in [hard case] is fundamentally incomplete”14 and the courts must exercise a creative law-making function. Dworkin on the other hand, had developed a refined criticism of legal positivism. In his later work “Law’s Empire” he developed the concepts of “propositions of law” and “grounds of law.”

15

The first

one is simply a statement of what the law is. The second is what makes the proposition true, for example a purported rule (“proposition of law”) is true if they are passed by the majority of a certain legislature (“grounds of law”). In hard cases judges will disagree about what the grounds of law are, they will engage in “theoretical disagreement.”

He gives the example of the case of Tennessee Valley Authority v Hill16 in which the majority and the minority were divided over the issue of whether a statute must be given its plain meaning even if it 8

TRS, p. 27 TRS, p.35 10 See TRS, p.36 11 TRS, ch.4, p.104 12 Published postum in CL, Postscript 13 CL, Postscript, p.240 14 Ibid. p.252 15 Law’s Empire, p.46-53 16 437 US 153 (1978) 9

lead to absurd results in absence of evidence that Congress did not intend the absurd result (majority) or whether a statute must be interpreted so as not bear absurd results in absence of evidence that that absurd results was intended (minority). To resolve a hard case a judge must engage in constructive interpretation of the law, this means “imposing purpose on…a practice in order to make it the best possible example of the form or genre to which it is taken to belong.”17 According to Dworkin the best interpretation of a legal practice is one that both fit the practice (i.e. is in harmony with historic legislative and judicial history) and justifies it (i.e. shows the substantive value of the purpose imputed to the practice). Judges may naturally disagree which interpretation is the best, because they can disagree about the moral value of law. But these disputes are legal disagreements. “Judges develop a particular approach to legal interpretation by forming…apolitical theory sensitive to the issues which interpretation in particular cases will defend…It will include both structural features, elaborating the general requirement that interpretation must fit doctrinal history, and substantive claims about social goals and principles of justice.” 18 The fact that “grounds of law” are controversial does not mean that the law is incomplete. Hart argues that when judges disagree about what the law is, they do agree that a particular test of legal validity (which can include conformity with moral values) is relevant and really only disagree what a particular test requires in the circumstances of the case.19 In resolving that issue they have to decide afresh. This explanation however does not answer Dworkin’s criticism in full. It presupposes that a legal rule exists only by virtue of general acceptance and that there is a consensus on the relevance of the test. Dworkin in contrast asserts that the test itself is controversial (in his example, whether the test is that statutes should be given their plain meaning, or whether the test is that...