I.
INTRODUCTION
Who is Dworkin? Ronald Myles Dworkin was born in Worcester, Massachusetts (USA) and is an American philosopher of law and one of the greatest contemporary thinkers in the field of legal philosophy and politics. In 1977, he published his work: “Taking Rights Seriously.” which is about a landmark book on philosophy of law. It also contains his argument against dominant philosophies of legal positivism and utilitarianism by proposing that rights of the individual against the state exist outside of the written law and precede the interest of the majority. In 1986, he then had a book published titled: “Law’s Empire” is about the explanation of how the Anglo-American legal system works and on what principles it is grounded. Watch YouTube video for the explanation: https://www.youtube.com/watch?v=S1frSMlzlyA Who is Hart? Herbert L. Adolphus Hart (1907-1992)He was a lawyer candidate and professor of the chair of jurisprudence at Oxford University becoming one of the most influential philosophers of the twentieth century. He was considered the best representative of legal positivism. In 1961, he wrote his book The Concept of Law” which is about a set of lectures that Hart began to deliver in 1952, and it is presaged by his Holmes lecture, Positivism and the Separation of Law and Morals delivered at Harvard Law School. Also, from the first published book followed another which was published after his death, it was the Second Edition of his work The Concept of Law which included a new postscript. How the debate started? The debate between Hart & Dworkin throws light on the nature of the thesis of each one of them. The sequence of the unending debate has so far been: First has been in Hart’s Concept of Law, published in 1961. Following that Dworkin’s criticism of Hart’s thesis is principally found in Law’s Empire. And the last of the debate is found in 2nd edition of the Concept of Law published in 1995 which is Hart’s response in the postscript of the book. II. THE ISSUE Hart’s legal positivism vs. Dworkin’s (quasi-) natural law theory IV. FIRST ACT DWORKIN ON RULES Protection of Rights and Individuals -
For Dworkin, the central approach within law emphasizes rights and the protection of the individual, including the protection of minorities who are left out of the consideration of the utilitarian. Unlike the legal positivists, Dworkin insists that you can’t think of law as just rules. The idea that laws are rules induces distortion in legal reasoning. Instead we must distinguish rules from principles, policies and other non-rule standards. In the operation of the legal system, policies are not appropriate to legal reasoning and principles are more important than rules as they surround the structure of rules. All rules produce problem cases or hard cases which cannot be resolved by logical application of rules.
All-or-Nothing -
Rules are applicable in an all-or-nothing fashion, in the sense that when two rules conflict, “one of them cannot be a valid rule.” Thus when a valid rule states that the speed limit is 60 miles per hour, another rule cannot simultaneously stipulate that the speed limit is 35 miles per hour.
Hard Cases -
Dworkin, judges are always constrained by the law. In every adjudication of the so-called “hard-cases’ there are controlling standards which a judge is obligated to follow. Hard cases are cases where judges agree on the facts of the case and on what the positive rules require, but they continue to debate what the law on the matter is. Dworkin objects to judges acting as ‘deputy legislators’ for 2 reasons: 1. Separation of Power: It offends the democratic ideal that a community should be governed by elected officials answerable to the electorate. The judge not being elected must not substitute his own will as against the legislature. (In Lord Simmons words, “it’s a naked usurpation of legislative functions). nd 2. Retrospectivity & The Rule of Law: Dworkin’s 2 objection to judicial originality is that “if a judge makes a new law and applies it retrospectively in the case before him, then the losing party will be punished, not because he has violated some duty he had, but rather a new duty created after the event.”
In Riggs v Palmer, Riggs is a case in which the plaintiff, Elmer Palmer, murdered his grandfather in order to expedite his inheritance. He was charged, and found guilty of murder. He then came before the Court and asked to receive his inheritance nonetheless. Even though Elmer was clearly set to inherit under the Statute of Wills that governed the case at the time, and even though there were no contravening posited laws overriding the Statute, the Court split in its judgment, with the majority siding against Elmer. It is true, the majority argued, that under the positive law, Elmer stood to receive his grandfather’s inheritance. Had the court taken the positivist view, that all laws are valid by the formal test (as per Hart’s thesis), the court would most probably decide in favor of Elmer. But the court did not allow Elmer to profit from his own wrong. That decision proceeded not on rules but on a principle of law, Nullus Commodum Capere Potest De Injuria Sua propria, that is, no one can profit from his own wrong. For Dworkin, judges are always constrained by the law. There is no law beyond the law. In every adjudication of hard cases there are controlling standards which the judge is obligated to follow. Judicial decisions are generated by principles and enforces existing rights so that litigants are entitled to the judge ‘best judgment’ about what their rights are. Judges may not rely on their own political views but only on their belief in the soundness of their contributions. Dworkin’s point in raising Riggs cannot merely be to show that there is one principle, namely, the principle that no man should profit from his own wrong, whose validity positivists cannot explain. This argument would fail to warrant his general anti-positivists conclusion. Nor, then, can Riggs be taken to show that judges must sometimes appeal to moral principles, but that which principles are legally valid, and when judges ought to make appeal to them, is a matter of posited law. If the test for legal validity of moral considerations is itself a posited one, then positivists could, in principle, posit a further rule recognizing these moral considerations as legally binding, making their error one of omission rather than impossibility, again failing to ground Dworkin’s general anti-positivist conclusion. HART ON RULES Practice theory of Rules -
Hart’s practice theory of rules relies upon a central distinction between primary and secondary rules. “Primary rules of obligation” are rules that impose duties or obligations on individuals, such as the criminal law. Secondary rules are meta-rules that work to specify ways in which primary rules may be created, recognized, eliminated or varied. The existence of secondary rules is regarded as necessary to combat the problems of stasis, inefficiency and uncertainty
that a pre-legal regime encounters as the community grows in size and complexity. Hart thereby presents his idea of law in “modern municipal legal systems” as an effective union between primary and secondary rules. However, in acknowledging that a primitive system of primary rules has such deficiencies, Hart is effectively making a normative claim by using standards relating to the guidance of conduct to assuming how a functional society ought to work. This claim is evaluative in nature and does not align with Hart’s concept of law as one that serves to simply provide a description of social practice. All or Nothing Refute -
When Hart spoke of legal rules, it is usually pointed out, he did not mean to single out only “all or nothing” standards that cannot conflict and lack the dimension of weight. He simply intended to refer to standards that are binding in a particular legal system and have as their function the guidance and evaluation of conduct.
Penumbra of uncertainty -
Penumbra of uncertainty must surround all legal rules, then their application to specific cases in the penumbral area cannot be a matter of logical deduction, and so deductive reasoning, which for generations has been cherished as the very perfection of human reasoning, cannot serve as a model for what judges, or indeed anyone, should do in bringing particular cases under general rules. In this area men cannot live by deduction alone. And it follows that if legal arguments and legal decisions of penumbral questions are to be rational, their rationality must lie in something other than a logical relation to premises. So if it is rational or "sound" to argue and to decide that for the purposes of this rule an airplane is not a vehicle, this argument must be sound or rational without being logically conclusive. What is it then that makes such decisions correct or at least better than alternative decisions? Again, it seems true to say that the criterion which makes a decision sound in such cases is some concept of what the law ought to be; it is easy to slide from that into saying that it must be a moral judgment about what law ought to be. So here we touch upon a point of necessary "intersection between law and morals" which demonstrates the falsity or, at any rate, the misleading character of the Utilitarian’s emphatic insistence on the separation of law as it is and ought to be. Surely, Bentham and Austin could only have written as they did because they misunderstood or neglected this aspect of the judicial process, because they ignored the problems of the penumbra.
Dworkin on Principles Rule of Recognition -
Dworkin takes aim at the rules of recognition. Dworkin’s criticism of rules of recognition takes place at two levels. At one level, he doesn’t think that any general theory of law is possible. The reason for this is that he feels that in at least some jurisdictions, no single set of recognition rules is adequate to describe where all the settled law comes from. Instead, Dworkin narrows the scope of what he is doing and develops a theory of what American judges think they are doing and should be doing. Dworkin argues that when judges reach a decision for a case, they see themselves as firstly, finding the law not only from particular rules, but also from principles and secondly, reaching their decision from within the bounds of the law and not going beyond it.
Legality of Principles -
Principles work differently. Principles are not all or nothing; they can apply to some cases, and not to others. They do not have explicit exceptions, because the principles themselves are not explicit. They are simply part of our common conception of justice.
One of Dworkin's example cases is Henningsen v. Bloomfield Motors (1960). Mr. Henningsen bought a car; the warrenty said the manufacturer's liability was limited to "making good" defective parts, and abosolutely nothing else. Hennginsen argued that the manufacturer should be liable for more than just parts. At the time, there were no rules governing this issue, but the court decided for Henningsen. The court said that cars are important and dangerous, so manufacturers need to be liable for more than just parts. The court also said it couldn't support an agreement where someone's economic necessity has been exploited. The court relied on principles - especially the bit about not exploiting economic necessity. The court considered another principle - the need to hold up contracts. Here we have two principles that contradicted each other; the judge needed to weigh the two against each other. This is another aspect of principles; they have weight. In each case, the judge must decide which of the possibily contradictory principles is the most important. And how do judges weigh principles? Well, it's what you call a hermenutic process. Unfortunately, the rule of recognition cannot deal with principles; the RoR can only handle rules. Principles, Dworkin believes, spring from the meaning of justice itself. For Dworkin, the law is a continuing story. Each judge - or generation of judges, I guess - writes the next chapter. When dealing with an open texture case, a judge needs to look back over the precedent cases, and find the themes and ideas that are most important, and find a way to tie his current case to those themes. Principles, says Dworkin, do not necessitate a particular decision the way that rules do. When a clear rule exists that should be applied to a case, the judge simply applies the rule to decide the case. Principles are not rules, but rather reasons that the judge takes into consideration. A crucial distinction between rules and principles, then, is that rules are applied all-or-nothing, whereas principles have a dimension of weight or importance. When two principles conflict, one principle may supersede another (Dworkin, Rights, 77-78). Hart on Principles Rule of recognition in conjunction with principles -
Hart's rule of recognition is akin to a constitution and a constitution must itself be presupposed as valid in order to validate inferior rules. Therefore in order even to say that legally an individual or a state ought to do something, whether in municipal or international law, one must logically presuppose an ultimate ought statement, a basic norm, or a rule of recognition. Thus if "State X ought to do Y" is a valid legal norm, its normative character is ultimately based upon a presupposed basic norm, as with Kelsen. Of course, it is true that any analogue of a municipal constitution in international law would be partial and vague, but if one interprets international relations as legal at all, as Hart proposes to do; that is as normative (as what ought to be), then one presupposes in one's thinking, a higher norm which validates the particular normative judgment. Hart questions this: 206 "... why should we make this a priori assumption ... and so prejudge the actual character of the rules of international law?" (Hart, op.cit., p.228) which is to suggest that there is no logical necessity of a basic norm in international law; that international law lacks a rule of recognition: 207 "Yet if rules are in fact accepted as standards of conduct, and supported with appropriate forms of social pressure distinctive of obligatory rules, nothing more is required to show that they are binding rules, even though, in this simple form of social structure, we have not something which we do have
in municipal law: namely a way of demonstrating the validity of individual rules by reference to some ultimate rule of the system". (Hart, op.cit., p.229). -
But "acceptance" is a socio-psychological phenomenon and from the point of view of an analysis of law the assumption is made that behaviour ought to conform to the rules of law, not that it actually does so conform. Because behaviour and "acceptance" never totally conforms to rules of law, it must be possible to say that individual X ought to do Y, but does not do so; or that state Z did not behave as it ought to at International law. But Hart's behavioural analysis renders such judgments problematic, perhaps logically impossible. His analysis represents law ultimately as what in fact happens, as opposed to what ought to happen. And what s worse, it does so while purporting to be a normative - i.e. an ought-to-be - analysis of law.
Creation from a recognized authoritative source -
Principles should be created from a recognized authoritative source, for example, legislative enactments, judicial decisions, or social customs.
IV. SECOND ACT Criticism 1. Any meaningful legal theory must take into account the viewpoint of the participant of the legal system considered. Hart’s descriptive approach fails to do this. Hart's Reply. There is in fact nothing in my book to preclude a non-participant external observer from describing the ways in which participants view the law from such an internal point of view … I explained … that participants manifest their internal point of view in accepting the law as providing the guides to their conduct and standards of criticism. Explanation: Hart has always maintained that his analysis of law has been from a detached ‘external’ point of view, even if he acknowledges that legal theory must take into account the ‘internal committed’ point of view of participants in the legal system. Dworkin said that all meaningful theories of law are driven by a view of law’s point or function that this entails a ‘justification’ of law in liberal democracies. Hart’s doctrine of the internal point of view is a methodological prescription which demands that legal theories resonate with the shared experiences of legal natives. Jurisprudence must take the point of view (or views) of the insider: it must be “hermeneutic” in orientation. Legal theories that take into account the internal point of view are, thus, to be contrasted with ones which ignore the beliefs and attitudes of those who live under the law. The clearest examples of "external" theories would be those motivated by concerns of philosophical behaviorism. Many sociological theories of law are external accounts in this sense insofar as they limit the observer’s role to recording the frequency of compliance in a given population and correlating its absence with the appearance of sanctions. Hart himself, qua legal theorist, actually takes the external point of view towards the law, though here external means theoretical and the particular theoretical stance hermeneutic. It is precisely because he takes a hermeneutical perspective towards the law that he rejects sanction-centered theories, for despite the fact that such theories take into account the bad man’s point of view, they ignore the internalized point of view. What are internal and external points of views? The internal point of view is the perspective of participants in the system. Thus, the internal point of view is paradigmatically the point of view of legal officials (such a judges). The external point of view is the perspective of outsiders. Thus, the external
point of view is paradigmatically the point of view of a sociologist or anthropologist from a different culture, who observes the legal system. Here are some examples: - Doctrinal theories (e.g. a theory of the Commerce Clause of the United States Constitution) are usually stated from the internal point of view. This is the kind of theory that law students usually encounter early in their legal education. - Causal theories (e.g. a public-choice theory that explains why a particular area of law has come to be the way it is) are usually stated from the external point of view. In first-year law school courses, causal theories are usually stated in a very compact, even off-hand form. There may be a brief classroom discussion of the causal forces that shaped a particular legal doctrine, but it is fairly rare actually to read social science literature on topics like this. Criticism 2. Hart’s thesis is defective in the criteria according to which the rule of recognition identifies what is law is confined to ‘plain facts’, of an historically established ‘pedigree’, i.e., that Hart is a ‘hard positivist’. Hart's Reply. Hart rejects the charge. In attributing to him a doctrine of ‘plain fact positivism’, Dworkin has mistakenly treated my theory as not on requiring that the existence and authority of the rule of recognition should depend on the fact of its acceptance by the courts but also as requiring that the criteria of legal validity. Explanation: Dworkin declares: “Incredibly, our jurisprudence has no plausible theory of theoretical disagreement in law.” This is so because “our jurisprudence” is committed to a “plain-fact” view of law. The plain fact view, according to Dworkin, consists of two basic tenets. First, it maintains that the grounds of law in any community are fixed by consensus among legal officials. If officials agree that facts of type f are grounds of law in their system, then facts of type f are grounds of law in their system. Second, it holds that the only types of facts that may be grounds of law are those of plain historical fact. The law is only a matter of what legal institutions, like legislatures and city councils and courts, have decided in the past. If some body of that sort has decided that workmen can recover compensation for injuries by fellow workmen, then that is the law. If it has decided the other way, then that is the law. So questions of law can always be answered by looking in the books where the records of institutional decisions are kept. As Dworkin convincingly argues, the plain-fact view cannot countenance the possibility of theoretical legal disagreements. For if, according to its first tenet, legal participants must always agree on the grounds of law, then it follows that they cannot disagree about the grounds of law. Criticism 3. Hart’s scheme fails to accommodate the fact that the purpose of jurisprudential system is to justify coercion.
Hart's Reply. Hart dismisses this charge - : … whereas Dworkin’s interpretative legal theory … rests on the presupposition that the point or purpose of law or legal practice is to justify coercion; it certainly is not and never has been my view that law has this as its point or purpose. Like other forms of positivism, my theory makes not claim to identify the point or purpose of law Explanation: 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”. Criticism 4. In representing law as consisting of fixed rule’s, Hart’s picture is defective in that it ignores the existence and significance of another form of legal standards, knows as principles. Hart's Reply. Some critics who have found this defect in my work have conceived of it as a more or less isolated fault which I could repair simply by including legal principles along with legal rules as components of a legal system, and they have thought that I could do this without abandoning or seriously modifying any of the main themes of the book. Explanation: Dworkin argues that in a legal system there are other things besides rules, for he says that a legal system cannot be conceived merely as a code of rules. Thus, Dworkin makes a differentiation between a rule and a principle, and articulates that a legal system has to be conceived as an institution based on certain standards, principles and policies. According to Dworkin, the conception of law as a system of rules fails to take account of what he calls ‘principle’. A question that naturally arises is: What is the difference between a rule and a principle? Rules are thought as detailed while principles are general. Principles are broad reasons that lie at the foundation of a rule of law; they are wide formulations of reason or generalizations which underlie and comprehend particular rules. The principles are wider than rules and the rules are categorical precepts attaching a definite, distinct and detailed legal effect; they are more specific and detailed than principles. Dworkin says that the distinction between a principle and a rule is a logical one. Both points to particular direction about legal obligation in particular circumstances, however, they differ in the character of the discretion they give. Rules are applicable in all-or-no fashion, principles state ‘a reason that argues in one direction but do not necessitate a particular decision. Principles are a matter of more or less while rules are a matter of yes or no. All that is meant, when it is said that a particular principle is a principle of law, is that the principle is one which officials must take into account, if it is relevant, as a consideration inclining in one direction or another. A principle has a dimension of weight or importance which a rule does not have. Rules, by contrast, are functionally significant. Principles may conflict. If rules conflict, a further rule will be needed to regulate the clash. The force of a principle may become attenuated over a period of time; its strength may become eroded. This is not so with rules. Criticism 5. The next issue concerns the relationship between law and morality, in particular with regard to rights and duties. Hart's Reply. For Hart, who as a positivist treats law and morality as being separate, there can be a legal rights and duties that have no moral justification whatsoever. Dworkin, on the other hand, holds the view (ultimately derived from his own imperative theory of law) that there must be at least prima facie moral grounds for asserti0on of the existence of the legal rights and duties. Explanation: Hart says that there is no indispensable logical connection between the content of law and morality, and that the existence of legal rights and duties may be devoid of any moral justification. Thus, his interpretation of the relation between law and morality is different from that of Ronald Dworkin, who in Law’s Empire suggests that every legal action has a moral dimension. Dworkin discards the concept
of law as acceptance of conventional patterns of recognition, and describes law not merely as a descriptive concept but as an interpretive concept which combines jurisprudence and adjudication. Hart distinguishes law from morality, custom, etiquette, and other kinds of social rules. According to Hart, four features of morality are necessary for a clear picture of his concept of law. They are—(i) importance, (ii) immunity from deliberate change, (iii) voluntary character of moral offence and (iv) forms of moral pressure. An indispensable feature of a moral rule is that it is regarded as something of great importance. Hence, individuals cannot omit it. It is an attribute of a legal system that new legal rules can be introduced and the old ones can be changed or replaced by deliberate enactment. On the contrary, moral rules cannot be brought into being or eliminated in this manner. Moral responsibility is a matter of internal behaviour while law is generally concerned with external behaviour. If a person after committing an offence establishes that he did that act involuntarily, then, he is excused from the moral responsibility, and blaming him, in such a situation, would itself be considered morally wrong. Whereas, there are certain exceptions in so far as fixing legal responsibility of a lawbreaker is concerned. Lastly, in case of law, the typical form of legal pressure may consist in physical punishment or unpleasant consequences. Whereas, the characteristic feature of morality, on the other hand, is the distinguishing form of moral pressure (appeals to respect the rules and the appeals to conscience) which is wielded in its support. V. BEYOND THE HART-DWORKIN DEBATE Stated in The Hart-Dworkin Debate: A Short Guide for the Perplexed by Scott Shapiro In the 7 th Part of the Article: THE FUTURE OF THE HART-DWORKIN DEBATE also citing Leiter in his work “Beyond the Hart-Dworkin Debate”: In a recent article, “Beyond the Hart-Dworkin Debate,” Brian Leiter makes the following provocative claim: “The moment now seems opportune to step back and ask whether the Hart/Dworkin debate deserves to play the same organizing role in the jurisprudential curriculum of the twenty-first century that it played at the close of the twentieth. I am inclined to answer that question in the negative, though not, to be sure, because I can envision a jurisprudential future without Hart’s masterful work at its center. Rather, it seems to me – and, I venture, many others by now – that on the particulars of the Hart/Dworkin debate, there has been a clear victor, so much so that even the heuristic value of the Dworkinian criticisms of Hart may now be in doubt.” Therefore, Leiter is saying that Hart was the clear winner and that the Hart-Dworkin debate no longer needs the scholarly and pedagogical pride of place that it has been accorded for the past four decades. If we identify the Hart-Dworkin debate solely by Dworkin’s criticisms in “The Model of Rules I” and the discussion generated by them, which is how Leiter and many others understand it, then I think that the positivists clearly have “won,” at least in the sense that they have successfully parried Dworkin’s challenge. Narrowly construed, the Hart-Dworkin debate is indeed past its intellectual sell-by date. For whether positivism can account for the fact that judges are often required to apply non-pedigreed principles in hard cases is a question that, as lawyers say, has been asked and answered. Dworkin’s critique of Hart and legal positivism did not end with “The Model of Rules I.” His challenge evolved over time and, in the process, became resistant to the existing positivistic defenses. Thus, I part company with Leiter when he writes that “The point is not, I hasten to add, that there remain no challenges to legal positivism, but rather that the significant issues that face legal positivists are now different, often in kind, from the ones Dworkin made famous.” I have argued, however, that positivism is particularly vulnerable to Dworkin’s critique in Law’s Empire. To overlook this challenge, which
most positivists have done, is to ignore the most serious threat facing legal positivism at the beginning of the twenty-first century. VI. CONSLUSION The main difference between the 2 professors is that whereas for Hart, at the point where law is incomplete in that it provides no answer to a question at issue, judges exercise their discretion in reaching a solution that fills the gap, thereby creating a new law. For Dworkin, on the other hand, the law never runs out; the answer is always there to be found. If the judge applies his mind to the matter properly, the winner could be found. Lastly, 50 years has passed since Hart first published his book “A Concept of Law” which was the root of this debate after Dworkin’s criticism on Hart’s view written in Dworkin’s book the Law’s Empire. The last debate was fired was Hart's incomplete work. Just 2 years ago, Dworkin has passed away and the possibility of further debate between the two gentlemen will now be posthumously honored. Now, the only thing we ask ourselves would be whether the debate that Hart and Dworkin had still have some relevance in today’s time. VI. SOURCES •
Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence by Brian Leiter The University of Texas School of Law American Journal of Jurisprudence, Vol 48, pp17-51, 2003 • Oxford Journal of Legal Studies, Vol. 24, No. 1 (2004) pp 1-37, Concept of Law by Heart,Laws Empire by Dworkin\ • Dworkin, R. (1986). Law's empire. Cambridge, Mass: Belknap Press • Dworkin, R. (1977). Taking rights seriously. Cambridge: Harvard University Press. • Shapiro, Scott J. "THE “HART-DWORKIN” DEBATE: A SHORT GUIDE FOR THE PERPLEXED." PUBLIC LAW AND LEGAL THEORY WORKING PAPER SERIES (2007): n. pag. Print. Internet Sources: • https://en.wikipedia.org/wiki/Taking_Rights_Seriously • http://www.hup.harvard.edu/catalog.php?isbn=9780674518360 • https://en.wikipedia.org/wiki/H._L._A._Hart
