Good Essay On Comparative Analysis Of The Philosophical Positions Of Hart And Dworkin On The Law As A Social Institution

Type of paper: Essay

Topic: Law, Criminal Justice, System, Supreme Court, Society, Jurisprudence, Philosophy, Theory

Pages: 10

Words: 2750

Published: 2020/11/05


The law is seen by many as a system of promoting morality through the institutionalisation of rules and regulations and consolidating them. This gives the impetus for the creation of rules and regulations that can be used by members of the society to ensure there is law and order. Numerous philosophers who came up after the Medieval Ages had different perspectives, opinions and views on how the Law could be construed by members of the society. Some of the biggest and most significant figures in this period are Hart and Dworkin who had different perspectives on how the law can be instituted and applied to members of the society and community.
The purpose of this paper is to assess the viewpoints advanced by the two philosophers. The fundamental aim is to identify which of them presented an argument about the law in the context of social institutions that is most applicable to the law in contemporary times. To this end, the paper will assess the accuracy of both authorities and conclude on whether Dworkin’s argument was a more accurate account of the nature of law as a social institution than Hart’s argument or not.

Jurisprudence and the Theory of Law

“Jurisprudence consists of the nature of law and its related ideas”. Jurisprudence is strongly linked to legal theory which is fundamentally steeped in political morality which is fundamentally based on philosophical and abstract questions. These questions are intertwined in the issue of history and sociology which helps to define the way and manner through which the law can be institutionalised and interpreted in order to meet its ends and goals in the society.
These discussions are important because they validate the moral authority and identify whether a legal system and structure is legitimate or not in the context of the existing views of members of the society. The nature of jurisprudence is that it comes with some elements of subjectivity and this means that there are different views and perspectives that define jurisprudence and legal theory. Due to this, there is no correct and accurate standard in identifying which legal theory and legal philosophy is right. There are thus, different opinions and different views on how the law must behave and how the law operates in relation to the society and in setting social standards.
In the 20th Century, there were numerous philosophers who critiqued philosophy of law and how it operates in the context of law and its operations. Notable amongst them was H. L. A. Hart who is viewed universally as one of the greatest whilst some view him as the greatest in the unqualified sense in defining modern legal philosophy. Hart was the Chair of Jurisprudence in Oxford from 1952-1968. However, he was succeeded by Ronald Dworkin as Chair of Jurisprudence as Oxford from 1969 to 1998. Dworkin is considered by some to be more influential and greater than Hart and they continuously differed on the fundamental philosophy of Law and its functions in society.

Hart and Legal Positivism

Hart and several other philosophers who share his views identify that the law should be viewed internally as a set of rules. The premise of this argument is that in the modern society, there are primary and secondary categories of rules. Primary rules are substantive rules of law that govern the way things are done and how issues are judged in order to draw conclusions.

Secondary rules are mainly three in outlook and they include:

Rules of recognition
Rules of change and
Rules of adjudication
Rules of recognition involve the rules and regulations that are based on how issues are handled and how issues are dealt with. Rules of change are about the way the rules of recognition evolve in a legal system. Finally, rules of adjudication include the way and means through which issues are handled and dealt with in the right context and system.
In pre-legal societies, primary rules are morals and they are the society’s belief of what is right and what is wrong. However, in the modern legal society, primary rules are based on objective realities that are construed from the secondary rules. And these rules are codified and consolidated into law. On the other hand, they are not moral codes in the modern society.
Primary rules cover specific situations and matters. This includes specific laws that are based on decision-making steeped in factual situations. Therefore, primary rules are specific laws that address specific legal questions and this allows the facts to be evaluated and analysed in relation to specific adjudication situations.
Thus, the law recognises a series of primary rules and regulations and these are applied in the context of secondary rules. Therefore in every case, the secondary rules will give impetus for the process of adjudication and this is based on the rules of regulation in the system. This leads to the identification of primary rules and regulations that are applied to the case in order to critique and analyse the facts of the case at hand.
Therefore, according to Hart’s positivist legal system, there are four main ways through which cases are heard and ruled in courts or entities of legal authority and they include:

Identification of a legal question based on the primary legal question;

Trace question to the legal system and identify the secondary legal questions and processes;
Apply secondary rules and interpret it within the context of primary rules
Conclude on the facts of the case.
The validity of a legal question or point of law in a legal case is in the context of examining existing rules or primary rules. Alternatively, it could be the power of an authority or entity that is empowered to do certain things.
The definition of a legal system is based on the identification of secondary rules and these secondary rules are rules that are obeyed by the majority of people in a given society. Hence, the citizens of the society obey these rules and regulations and the rule manifest as an internal point of view. The secondary rules evolve over the years and they control the judicial behaviour and define the legal tradition of a given society and/or community.
Hart defines the game analogy and he states that the legal system has definite rules like a tennis or football game and they are “established and reflects the core of the meaning of the game”. Thus, the referees and judges interpret the rules in closed textured areas where there are clearly applicable rules and there are major consistent approaches are consistent requirements that are used to carry out things.
In the closed textured areas, Hart asserts that there are no judges’ discretion and they carry out the interpretation of the laws by applying the laws and the rules in an objective way and manner. This will prevent the abuse and integration of new ideas and new concepts.
Law and morals are separated in Hart’s positivist theory. These are separated by primary rules that exist without any reference to morality or the need to be good or meet some subjective requirements of judges.

Limitations and Inherent Weaknesses of Hart’s Legal Positivism

The fundamental and central weakness in Hart’s legal theory is that he places an emphasis on ideologies ahead of the objective interpretation of rules. This is because the rules are based on stare decisis and this is opened to the creation of a society which is based on the fundamental values and rules of the society and community within which it exists.
Secondly, the critics of Hart’s legal positivism argue and assert that stare decisis are fundamentally optional. There is no obligation for a judge to find new facts and throw out stare decisis. This means that there is no consistency in viewing law as a consistent system of getting rules. This does not really appeal to those who are misled by people who are flexible and seek improved and enhanced results.
Finally, authorities like Edward Levi argue that Hart’s world view does not encourage the concept of the law or constitution being a living system. This is because he identifies that there could be new and predictable and consistent laws that must be applied in all situations.

Dworkin’s Attacks on Legal Positivism

Dworkin’s rendition of positivism could be summarised in three main pointers which forms the basis for the counterargument against the system of philosophy in relation to the law. The argument indicates that:

Legal rules define and determine legal duties and obligations;

Secondary rules of recognition helps to identify primary rules in cases of controversies;
Open textured areas of judicial discretion meant the system is not as consistent and certain as it might be argued by the positivists like Hart
The pointers indicate that there are master rules and there are more basic rules. This is because in cases where new positions are taken by courts, the arguments advanced by Hart are not applicable. In Riggs V Palmer, the courts applied a completely different approach to the case of a man who killed his grandmother because he wanted to inherit from her will and the courts barred him from benefiting from the will. This was not rooted in any form of stare decisis and it was a completely new approach that was used by the judges to deal with a situation that did not previously exist. Therefore, it asserts that the system of having structured systems of developing laws as Hart put it is not realistic.

Dworkin’s Rights Thesis

Dworkin goes on to argue that judicial acceptance of rules does not lead to an obligation to obey it as it is posited by Hart and other thinkers. This is because where people accept the judicial system it does not mean it is institutionalised or accepted by all.
Secondly, uncontrolled use of discretion negates the idea that the law is based on a series of rules that guide the way things are done. This is because technically, the judge can find new facts and new circumstances in the case and based on that, he can rule the case in a manner that completely disregards the idea of stare decisis.
Therefore, Dworkin presents the Rights Thesis which asserts that there is a logical and factual structure for the evaluation and analysis of cases. And this is done through the evaluation of the parties’ natural rights in the case. This indicates that the judge will have to use his discretion but within the scope of the discretionary model. This is particularly the case in open textual cases where new rules allow a judge to set up a system that will prevent the “opening of the floodgates”.

Rules, Principles and Policies and Dworkin’s Right Thesis

Dworkin states that rules in cases are decided by principles. This is because principles set the framework and scope for the discussion and conclusion on the matter. Therefore principles define the way through which cases are construed. This leads to the formulation of policies which are the social, political and economic results of the situation. This leads to the formulation of new systems based on the rights of the parties and the need to form some kind of process for protecting members of the public in dealing with issues and matters.

Critical Analysis

It is apparent that Hart provides a set of first principles to a learner of jurisprudence and legal theory and this includes how laws come about and how laws are formulated and given force in the society. This provides a set of relatively stable norms about how the law evolved from pre-legal societies into modern societies.
Hart’s analysis also indicates an important framework of rules that were steeped in authorised use of power and generally accepted rules that provided the legitimacy for these rules. And hence, there was some kind of consistency that came through the application of the secondary rules that is fundamentally constitutional power and due process in the legal system. This is an accurate description of the judiciary in most countries and how the judiciary functions as an arm of government in most modern states and this is an accurate description of modern states and modern countries.
On the other hand, this is mainly descriptive and does not include the identification of the realities of situations and circumstances that exists. These gaps are filled by Dworkin who identifies the way and means through which the law exists.
Dworkin’s work does not accurately describe the way society’s legal systems operate and works. On the other hand, they seem to criticise Hart’s work on the fundamental elements of the law. This is done by punching holes in Hart’s work and identifying its weaknesses.
Dworkin feeds on the limitations of Hart’s work and proposes an approach that is somewhat based on the realism of the way the law works and how it operates in modern nations. First of all, most modern nations, particularly the United States and France were formed on the premise of protecting the rights of its citizens. Hence, they have constitutions that mention the rights of the people. And this forms the basis on which the legal system is structured. The interaction of these rights includes the interactions of rules, principles and policies which evolve as a result of the conflict between numerous competing rights.


The study identifies that Hart’s descriptions of the nature of law fits a conservative Western democracy that is based on a set of stable systems and structures. This description could apply for the old United Kingdom with conservative values and systems. On the other hand, Dworkin’s description and analysis is more applicable to modern countries with democratic structures where human rights are considered sacred. Hence, there is the need for rights to be defined and these rights are varied from time to time and the interactions of the different rights provide the basis for the operation of the legal system. Therefore, it is conclusive that Dworkin’s definition is more applicable to modern legal systems. However, Hart’s description is a thorough analysis of the nature of law and it provides a different dimension of the conservative systems and structures of a nation on the basis of first principles of law.


Dworkin, Ronald, Taking Rights Seriously Cambridge, MA: Harvard University Press, 1977
Freeman, Michael, Lloyd’s Introduction to Jurisprudence London: Sweet & Maxwell, 2007
Guest Stephen, Geary Adam, Penner James & Morrison Wayne, Jurisprudence and Legal Theory London: University of London, 2012
Hart, Herbert Lionel Adolphus, The Concept of Law London: Clarendon Law, 1961
Levi, Edward, An Introduction to Legal Reasoning Oxford: Oxford University Press, 1974
Mikhail John, “Plucking the Mask of Mystery from its Face: Jurisprudence and HLA Hart” Georgetown Law Journal 95 pp733-779, 2007
Van Doren John, “Theories of Professor HLA Hart and Ronald Dworkin – A Critique” Cleveland State Law Review 29(279), 1980
Riggs V Palmer 115 NY 506 22 NE 188 (1899)

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