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 of the rules which exemplify them, but at least contributing to their justification. These two distinctions are accepted by Hart as valid, but here is a difference of view on the third distinction. Dworkin sees that rules ‘function in an “all or nothing” manner in the sense that if a rule is valid and applicable to a given case then it conclusively determines the legal result or outcome’. Legal principles differ from such ‘all or nothing’ rules in that while they may point or count in favour of a decision, they do not invariably determine the outcome. Hart refers to this feature of principles as their ‘non-conclusive’ character.
Hart replies that he sees no reason to accept a sharp distinction between legal rules and legal principles and or the view that if a valid rule is applicable to a given case it must, unlike a principle, always determine the outcome. This is a logical argument on Hart’s part, after all a basis for this view cannot be easily found - so the question is whether it was an assumption of the part of Dworkin to create this ‘all or nothing’ rule? Of course not. One can see that rules have more power to determine the outcome of the case than principles - this can be taken to be accepted by both theorists. But it could well be that Dworkin on his part has slightly exaggerated the extent to which rules are influential in relation to principles; rules do not have an all or nothing character as Hart goes on to show.
He cites the case of Riggs v. Palmer which was also used by Dworkin, to show that the fact there is sometimes conflict between rules and principles and that the principle will sometimes win. He takes this to mean that rules don’t possess that all or nothing character that Dworkin assigns them. Hart claims that he did not intend in the use of the word ‘rule’ that legal systems comprise only ‘all or nothing’ rules.
Hart rightly gives credit to Dworkin for illustrating the importance of principles and acknowledges that they are an important feature of adjudication and legal reasoning. However, though Hart didn’t use the term ‘principles’, in Concept he talked of ‘variable legal standards’ which specified factors to be taken into account and weighted against others in reaching a decision. He mentioned how these would not be better in some areas of conduct in comparison to near conclusive rules.
Thus, Hart puts forward a very convincing reply by logically showing that he could include principles without having to abandon the central doctrines to his theory, and so his thesis stands unshaken.
PRINCIPLES AND THE RULE OF RECOGNITION.
The next issue concerns the rule of recognition. It’s an essential feature of Hart’s thesis that there must be rules but it follows that these must also be capable of being identified by a rule of recognition. However Dworkin holds that principles are not capable of being identified by a rule of recognition and so this doctrine must be abandoned. He asserts that principles are identified by a process of constructive interpretation.
Hart relies on a notion that Dworkin had himself introduced, that of principles having pedigree, and claims that Dworkin is wrong to dismiss pedigree as a means by which principles can be identified. He states the example that various principles of the common law can be traced up to the principle that a person should not be allowed to profit from his own wrong, a principle given authority by its approval by the courts. Following from this he argues that there are at least some legal principles which may be captured or identified as law by pedigree criteria provided by a rule of recognition, and thus concluding that Dworkin’s criticism was wrong to say that principles and the rule of recognition are incompatible.
It seems the use of the notion of pedigree which Dworkin himself introduced helps weigh the argument down in the favour of Hart. As Hart himself also suggested, Dworkin’s interpretative test for establishing the validly of principles is no more than the specific form that is taken in some legal systems by a conventional rule of recognition whose existence and authority rests on its acceptance by the courts. Though Hart understands that this would be rejected by Dworkin for completely misrepresenting his notion of ‘constructive interpretation’, one cannot help but see the connection. If principles are identified because they are member of a set of principles which justify the history of all the law in the legal system, then it follows that these set of principles are part of the history of all law and so principles can be traced up to an ultimate source which also has to be part of the history of all the law.
The above shows that ‘constructive interpretation’ and pedigree and so the ‘rule of recognition’ are interlocutory, there is just the obvious difference between the two, the difference that one is based on a more specific level then the other. It would be very interesting to see Dworkins reply to this.
LAW AND MORALITY.
Now we come to the final point of disagreement, the relationship between law and morality. Dworkin holds that there must be prima-facie moral grounds for assertions of the existence of legal rights and duties, however Hart on the other hand claims that there are no necessary conceptual connections between the content of law and morality, because he claims ‘morally iniquitous provisions may be valid as legal rules or principles.
This last point is true if one thinks in the sense that there are rights and duties that are the law irrespective of whether they are according to morality good or bad, for example racist laws in countries ordering for the genocide of minority groups ( Nazi Germany). This supports Hart’s claims. But Hart cannot accept Dworkins view as it would mean taking away the foundations of the whole of his thesis as a positivist.
However, it seems to me an assumption on Hart’s part that morality means moral goodness. Even if it does, there has to be a morally bad for a morally good to exist in the first instance and therefore morality has two extremes; morally good and morally bad. It is very possible that rights and duties in law be based on either of the two extremes of morality and so there can be a connection between the content of law and morality.
It follows form this that something that is morally iniquitous can be valid law ( refer to nazi Germany example above). Even though Hart at this point is right to think so here, his last related argument that morality and the content of law have no connections was wrong. Dworkin on the other hand here believes that law that is morally iniquitous is not valid law and so seems wrong especially in the face of such examples as the Nazi Germany one above.
CONCLUSIONS.
Hart’s replies to Dworkins objections have followed logic on all occasions and so have been quite adequate, except on the last point of disagreement. Hart’s arguments were enough to show that Dworkin was wrong about the idea that something morally iniquitous was not valid law, but Hart’s ideas as was shown were based on the wrong foundations.
One could argue forever on the last disagreement upon law and morality, as it possible to see it from all view points. If one strongly believes and argues rationally and logically, then their claims can stand unshaken. If they do not then at one point or another they will be caught out and forced to reassess their claims.
BIBLIOGRAPHY.
Davies. H., & Holcroft. D., ‘Jurisprudence’, (1991), chapter 4.
Hart. H. L. A., ‘The Concept of Law’, (1994, 2nd ed.), pp259-272.
Riddall. J. G., ‘Jurisprudence’, (Butterworths, London, 1991)
Riddall. J. G., ‘Jurisprudence’, (Butterworths, London, 1991), p.25
Hart. H. L. A., ‘The Concept of Law’, (1994, 2nd ed.), Postscript, p.259
Riddall, op. cit., p.42 - A rule of recognition i.e.. enabling people to know what is and what is not law.
Hart, op. cit., p.263 - constructive interpretation: under which principles are identified as being members of the unique set of principles which both best fits and best justifies the whole institutional history of the settled law of the legal system.
ibid., p.264 - pedigree of principles: that is the manner of their creation or adaption by a recognized authoritative source.