‘Outline Hart’s Reply To Dworkin In the Postscript To the Concept of Law. Do the Arguments Advanced By Hart Adequately Answer Dworkin’s Objections To the Positivist Conception of Law?’

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‘OUTLINE HART’S REPLY TO DWORKIN IN THE POSTSCRIPT TO THE CONCEPT OF LAW.  DO THE ARGUMENTS ADVANCED BY HART ADEQUATELY ANSWER DWORKIN’S OBJECTIONS TO THE POSITIVIST CONCEPTION OF LAW?’

ADEEBA  NASEEM

JURISPRUDENCE

WORD COUNT:1603

INTRODUCTION.

There has over recent years been a debate between Hart and Dworkin over the concept of a Legal system.

Hart a positivist is one who regards a law as being valid not by reference to some higher law or moral code, but by reason of no more than its existence.  Dworkin through his ‘interpretive’ theories of settled law and legal systems on the other hand, expounds that particular laws are not really laws.  He has become the main critic of Harts thesis which is based on analysis and ‘description’.  

Before his own death Hart advanced arguments to Dworkins objections of his positivist concept of law.  My purpose here is to evaluate the replies given by Hart in the Postscript to The Concept of Law as well as summarizing his arguments contained within it.

RULES AND PRINCIPLES.

The main point of dispute and from which all other criticisms flow is that in representing law as consisting of rules, the picture that Hart draws is defective because it ignores the existence and significance of another form of legal standard - principles, which play an important and distinctive part in legal reasoning and adjudication.  

However Hart points to the fact other critics that have found the very same, have ruled it as ‘a more or less isolated fault’ which can be easily repaired by the inclusion of legal principles alongside his legal rules as components of the legal system.  Hart claims that he could do this without any serious consequences for his theory as a whole, and agrees that it is a flaw in his book that he only manages to touch upon principles.

This admission by Hart shows that he is willing to accept criticism when it logical and thus willing to adapt changes.  Logic is the key element in all useful and good theories so Hart has no choice but to integrate legal principles into his theory.  

However it was Dworkins claim that this could not be done without Hart abandoning the central doctrines of his theory, and so proving that his theory has fatal omissions, making it unable to stand up.  

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Before attempting to evaluate the adequacy of Harts reply we should identify in much more detail what principles are and what rules are and the differences between them, as these two concepts are the bases  of the claims of the two theorists.

Firstly compared with rules, principles are broad, general and unspecific.  A number of rules could be cited that are instances of the application of a single principle.  Secondly, principles because they refer more or less to some purpose, goal, entitlement or value are desirable to maintain and so not only as providing an explanation or rationale ...

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