Comparison And Critical Evaluation Of The Hart And Dworkin’s Theories With Regard To The Case Of Riggs V. Palmer Essay Sample

Type of paper: Essay

Topic: Law, Criminal Justice, Rule, Supreme Court, Principles, Policy, Recognition, Decision

Pages: 8

Words: 2200

Published: 2021/01/08

Hart and Dworkin’s Theories in the case of Riggs v Palmer

Hart and Dworkin’s Theories
There has been a recent revival of Jurisprudence under the stimulation of professors Ronald Dworkin and H.L.A. Hart. It has been long believed in the United States that jurisprudence is esoteric and lack practical significance. The unconscious and conscious decisions made by the practitioners, professors and judges give a reflection of jurisprudential preferences.
However, recognizing what is at stake in a jurisprudential controversy is not easy because such disputes usually leave in obscurity any practical result. To a great extent, the criticism raised over by Professor Dworkin’s on Professor Hart’s positivistic jurisprudence make sharp of the focus of the matter. Hence, an illumination of the operations of the legal process in settling such disputes would be sharpened by a critique upon both Hart and Dworkin (Bayles, 2002).
Though, Professors Dworkin and Hart mix the traditional jurisprudence together with their own original contributions, the final results obscure and subverts much of the actual operations of the legal process. This research paper attempts to summarize the various views of Professor Hart and Dworkin by engaging in an advanced level of critical evaluation of the Professors’ thinking in the demonstration of what will seem as a disparity between the way legal machinery is operational today and the theories with respect t to the case of Riggs v. Palmer.

The Case of Riggs v. Palmer

In Riggs probate suit, the plaintiffs, Mrs. Preston and Mrs. Riggs, were seeking to invalidate their father’s will, Francis B. Palmer, a case that was testated on 13th August 1880. In this case, the defendant was Elmer E. Palmer, the grandson to the testator. The Mr. Francis will give some level of legacies to two of his daughters, Mrs. Riggs and Mrs. Preston, but the majority of the estate was directed to be given to Elmer Palmer whose mother, Susan Palmer, who is the widow of the late son of the testator will take of the estate until Elmer became of legal age (Winter, 2003).
With the knowledge that he was to be the greatest recipient of his grandfather’s estate and the fear that the grandfather could have made up his mind differently over the will, Elmer murdered the grandfather by poisoning him. The plaintiffs, Preston and Riggs argued that by executing the will the way it is made Elmer benefit from the crime he did. Though, there is existence of criminal law to punish Elmer over the murder claims, but there was no statute upon their probate or any form or criminal law that could invalidate his right to claim the estate based on his action of murdering the grandfather.
In the Professor Hart’s book of “The Concept of Law” he gave a classic restatement of the legal positivism, by basically believing that law should be looked at from an internal view as a set of rules. The rules are categorized into two major sets: primary and secondary. In a pre-legal or primitive society, there is exist no distinction between the moral tents and the primary rules. The difference only comes in at an advanced level of legal development in which the primary rules constitute the substantive rules of law which govern the society. The additional difference between advanced legal and pre-legal societies is the presence of secondary rules in the latter. The rules are known as rules of change, adjudication and recognition which enable one to find the distinction between the society’s moral rules from its legal rules. It’s essential to make the distinction since it allows legalists to solely use these legal rules in making a decision over controversies without depend on the society’s moral canons (Hart, 2002).

Criteria for the legal system existence

The belief of Hart over the existence of a legal system is that the officials must admit the secondary rules and at all cost, the populace must obey the accepted rules. That is, if the laws are valid by the tests of the system, and they are obeyed by the majority of the citizens, there exist a valid legal system. Even though, the notion that the populace have the habit of obedience and, therefore, cannot apply to the attitude of the officials in the context of their application of secondary rules (Bayles, 2002). Although the citizens’ obedience could be the result of fear, the official’s attitude towards the rules of recognition should be one that manifests an internal point of view. For instance, to consider that there exist a legal system, officials must be having an internal point of view in which at least the rule of recognition becomes a common standard of a right judicial behavior, but not something which each judge obey for his part only. The validity is allowed through official acceptance as a result of this aspect of the internal view of officials, thereby distinguishing the orders of the sovereign, that is, the laws, from the order of a gunman, which even though obeyed but are not laws.

The attack of Professor Dworkin on Hart Positivism

The argued brought forth by Professor Dworkin is that Hart’s legal system flops in the open-textured aspects. Basically, Dworkin restated three vital positivist positions: First, is that legal rules determine and define legal obligations and duties. Secondly, is the usage of the secondary rules of recognition provides for identification of the primary legal rules which give determination of the decisions within the legal controversies making these rules to be distinct and separate from the moral rules (Culver, 2009). Lastly, is that despite the primary rules and the rules of recognition, there is still an open-textured area in which judicial discretion can be exercised in the context of the decision-making process. The argument of Dworkin on positivism is that if a judge makes a decision on a case through exercising his discretion, he is out of the binding rules and consequently no legal duty or obligation exists.
The concentration of the Dworkin’s critics is on the rules of recognition that forms an essential part to a positivistic legal system. He restates Hart’s stance from the perspective that the secondary rules of recognition would be perceived as the master rules that specify the various essential features. The possession of these features through a suggested primary rule is considered as a conclusive affirmative indication showing that the particular rule is a valid primary rule of law. Moreover, the basis upon which validity of a secondary rule is such that it is generally accepted, and such acceptance impose a duty on the officials to ensure they follow it (Winter, 2003). The obligation to follow the secondary rule and then in turn the primary rule differentiates the officials from moral rules. For example, in the attempt finding an illustration of the aspect of acceptance is the majority of officials who are looking to the enactments of Congress in determining an answer to a legal problem. The practice then formulates a duty within every officialdom to operate likewise.
Dworkin gives assertions that this does not provide an answer as per to why the courts are tasked with the duty to follow the legislature. For instance, the how would one explain the distribution of the estate through a judge’s order in accordance to the statute of distribution and descent, as presented in Riggs v, Palmer. The response of Professor Hart would be that the internal point of view takes control, and the fact that there exist rules that are accepted by the officials results to creating a duty for everyone to follow. Hence, the rules of recognition discover the sources of law, that is, judicial precedent or the legislative enactments. This consequently identifies the primary rule that controls and then the application of a primary rule is done, and then a decision is made.
Dworkin further argues that there is collapse of this process in the open-textured areas because the measurement of the rules of recognition is by the standards judges “characteristically use,” and in a scenario that the standards are subjected to considerable disagreement, then there is no such a thing as “characteristic use.” Generally, this is automatically known because the officials constantly tend to disagree on standards and the sources of standards applicable in finding a solution for the legal problem. Thus, the explanation given by the rules of recognition over the process of judicial decision making in an open-textured areas is not justifiable.

Uncontrolled discretion negates Rules in the hand case area

Dworkin remarks that the positivist model acceptance of the uncontrolled discretion highly undermines the effect and force of the rules of the model. A rule is considered to be a precept which is easily applied in a case of a legal problem in an ironclad manner. But if any case, a rule can be modified or changed by the policies and principles at the uncontrolled discretion of an individual judge, then this particular rule cannot be applied as a rule in the positivist model. Moreover, in case the positivist perspective of a rule of an ironclad application is to be preserved, then standards controlling the rules should be recognized. For instance, in Riggs the rules to guide the distribution of estates in accordance to the will of Francis Palmer were ignored the time the heir shot the testator with the mission of preventing him from changing his will (Hoof, 2003). The principle which states that “no man shall profit from his own wrong” took precedence over the statute.
Therefore, the summary of Dworkin’s arguments can be put as follows: Certain standards must be in control of the application of the rules in hard cases. In a system in which the discretion to select the principles is uncontrolled is considered unacceptable and undermines the positivist rule model (Culver, 2009). The principles create the standards in which the rules can be changed, since the principles are often not agree upon, then there isn’t any single rule of recognition, and thus there is none for the positivist’s rules. The application of the new rule as exemplified in the Riggs case in finding their legal force is through principles which secondary rules do not govern.

The difference created between principles, rules, and policies.

The analysis of Dworkin is further refined when he makes the distinction between the principle, rules, and policies. The difference created between a rule, and a principle is that principle does not dictate the result as explicit as the former (Hart, 2002). For instance, the saying the no one should profit from his own wrongdoing becomes a principle since there exist no counter-examples in which one may have benefited from a wrong. The essence of the principle that make the circumstance in which it applies to a particular scenario could be unclear in contrast to a rule that dictates a result. On the other hand a policy is simply a goal or an aim to achieve a political, economic and social result in a society (Bayles, 2002).
In the case of Riggs, the court decided that an heir named in the will of his grandfather could not be given the estates due to the fact that he had murdered the testator (Guest, 1992). This preposition such that no one benefits from his own wrong-doing encompasses Dworkin’s examples of a principle. Dworkin argues that the principles have the effect to control judicial discretion within the hard case area since judges uphold preexisting rights of the parties by the application and the location of such principles.

Hard cases are controlled by Principles not Policies

As argued by Dworkin, the inquiry into the decisions in the context of hard cases cannot be polished over by giving reference to either the society’s goals, for example, economic efficiency or justice, or through relegation of the task on the legal process or the jurisprudence to suit instrumentalities or procedures that are designed to advance the goals of the society. The central issue for Dworkin is whether the decisions in the hard cases should be viewed as an application of principles, and if in any case the model is an appropriate one then what standards apply to such selection. He answers this that decisions in hard cases should be founded upon principles, and such principles are formulated by judges from the constructs of the preexisting legal materials, for example, cases, statutes and the constitution (Winter, 2003).
He further argues that policies, especially those policies that a decision maker can consider in their decision-making process. That is, those policies the decision-maker may think desirable from a personal preference, should not play a part in the judicial decisions. For instance, in the case of Riggs v, Palmer, the desirable decision for Elmer Palmer, the grandson of the testator, to murder his grandfather for the reason that he thought the grandpa could change his mind over the will which he was the greatest beneficiary, will not play any part in the decision making of the judicial process (Guest, 1992, Culver, 2009). In fact policies forming the wide collective goals of a society, are more suitably considered by the legislature. The judge would possible apply a legislative policy, but he should never implement his own policies. Therefore, principles create a limitation in choice and govern the cases happening between individuals; whereas, the policies which are judicially based become irrelevant. As a way of utilizing this particular theory, discretion would never be prevalent as supposed by some theories.


Bayles, M. D. (2002). Hart's Legal Philosophy: An Examination. Dordrecht: Springer Netherlands.
Culver, K. C. (2009). Readings in the philosophy of law. Peterborough, Ont: Broadview Press.
Guest, S. (1992). Ronald Dworkin. Stanford, Calif: Stanford University Press.
Guest, S. (2013). Ronald Dworkin. Stanford: Stanford Law Books.
Hart, H. L. A. (2002). The concept of law. New York: Oxford University Press.
Hoof, G. J. H. (2003). Rethinking the sources of international law. Deventer, Netherlands: Kluwer Law and Taxation Publishers.
Pavčnik, M. (1997). Legal systems and legal science. Stuttgart: Steiner.
Siltala, R. (2000). A Theory of Precedent: From Analytical Positivism to a Post-Analytical Philosophy of Law. Oxford: Hart Pub.
Winter, S. L. (2003). A Clearing in the Forest: Law, Life and Mind. Chicago: Chicago university press.

Cite this page
Choose cite format:
  • APA
  • MLA
  • Harvard
  • Vancouver
  • Chicago
  • ASA
  • IEEE
  • AMA
WePapers. (2021, January, 08) Comparison And Critical Evaluation Of The Hart And Dworkin’s Theories With Regard To The Case Of Riggs V. Palmer Essay Sample. Retrieved March 07, 2021, from
"Comparison And Critical Evaluation Of The Hart And Dworkin’s Theories With Regard To The Case Of Riggs V. Palmer Essay Sample." WePapers, 08 Jan. 2021, Accessed 07 March 2021.
WePapers. 2021. Comparison And Critical Evaluation Of The Hart And Dworkin’s Theories With Regard To The Case Of Riggs V. Palmer Essay Sample., viewed March 07 2021, <>
WePapers. Comparison And Critical Evaluation Of The Hart And Dworkin’s Theories With Regard To The Case Of Riggs V. Palmer Essay Sample. [Internet]. January 2021. [Accessed March 07, 2021]. Available from:
"Comparison And Critical Evaluation Of The Hart And Dworkin’s Theories With Regard To The Case Of Riggs V. Palmer Essay Sample." WePapers, Jan 08, 2021. Accessed March 07, 2021.
WePapers. 2021. "Comparison And Critical Evaluation Of The Hart And Dworkin’s Theories With Regard To The Case Of Riggs V. Palmer Essay Sample." Free Essay Examples - Retrieved March 07, 2021. (
"Comparison And Critical Evaluation Of The Hart And Dworkin’s Theories With Regard To The Case Of Riggs V. Palmer Essay Sample," Free Essay Examples -, 08-Jan-2021. [Online]. Available: [Accessed: 07-Mar-2021].
Comparison And Critical Evaluation Of The Hart And Dworkin’s Theories With Regard To The Case Of Riggs V. Palmer Essay Sample. Free Essay Examples - Published Jan 08, 2021. Accessed March 07, 2021.

Share with friends using:

Please remember that this paper is open-access and other students can use it too.

If you need an original paper created exclusively for you, hire one of our brilliant writers!

Contact us
Chat now