Hart's Concept of Law and Dworkin's challenge

1. Hart against Austin

H.L.A. Hart (1907–1992), Professor of Jurisprudence at Oxford, published The Concept of Law in 1961; a second edition (1994) added a posthumous Postscript replying to Dworkin. Hart begins with the gunman who orders a bank clerk to hand over money: the clerk is obliged, but not under an obligation. Austin’s model is the gunman situation writ large, and it fails because:

• Variety of laws. Many laws confer powers (to make contracts, wills, marry, legislate) rather than impose duties under threat. Treating nullity as a sanction is artificial.
• Range of application. Legislators are bound by their own laws; a command is addressed to others.
• Mode of origin. Custom and other rules are not commanded.
• Continuity and persistence. Habitual obedience to Rex I does not explain why Rex II’s first order is law, nor why a statute of a dead sovereign is still law.
• Limited sovereignty. Constitutional limits cannot be explained if the sovereign is by definition illimitable.

2. Rules and the internal point of view

A habit is mere convergent behaviour; a social rule exists when people treat deviation as a reason for criticism and use the rule as a standard (“you ought to”). This is the internal aspect. An observer who records only regularities and predicts reactions has the external point of view and misses what makes the rule a rule. The emphasis on how participants understand their practice is Hart’s debt to linguistic philosophy (Wittgenstein, J.L. Austin).

3. Primary and secondary rules

Primary rules impose duties. A society with only primary rules (a “pre-legal” society) suffers three defects, each cured by a secondary rule:

The union of primary and secondary rules is, for Hart, the key to the science of jurisprudence.

4. The rule of recognition

The rule of recognition specifies the criteria by which rules are identified as valid law (in the United Kingdom, roughly, what the Queen in Parliament enacts is law; in India, the Constitution and laws made under it, with the Supreme Court’s interpretations). Its existence is a matter of fact: it exists because officials, especially judges, accept it from the internal point of view and use it. It is neither valid nor invalid; it is simply accepted. This is the contrast with Kelsen’s presupposed basic norm.

A legal system exists when (a) the valid primary rules are generally obeyed by citizens and (b) the secondary rules are accepted by officials as common public standards. Citizens need not share the internal point of view; officials must.

5. Open texture and judicial discretion

Language has a core of settled meaning and a penumbra of doubt. “No vehicles in the park” clearly covers a car; it is unclear for bicycles, roller skates or a war memorial tank. In the penumbra the rule runs out, and the judge exercises discretion, making new law interstitially. Hart thus steered between formalism (rules always decide) and realist rule-scepticism (rules never decide).

6. Law and morality

Hart kept the separation thesis: there is no necessary connection between law and morality. He accepted a minimum content of natural law (see the note on the revival) and the Hart–Fuller debate on the Nazi grudge informer. In Law, Liberty and Morality (1963) he argued against Lord Devlin (The Enforcement of Morals, 1959 lecture) that the law should not punish private immorality merely because society condemns it, following Mill’s harm principle. The Wolfenden Committee (1957) had recommended decriminalising private homosexual acts between consenting adults, the trigger for the debate; the same reasoning was used by the Supreme Court in Navtej Singh Johar v. Union of India, 2018 INSC 790, where the Court preferred constitutional morality over popular morality.

7. Dworkin’s challenge

Ronald Dworkin (1931–2013), Hart’s successor at Oxford, attacked positivism in “The Model of Rules” (1967, reprinted in Taking Rights Seriously, 1977) and developed his own theory in Law’s Empire (1986).

• Rules and principles. Rules apply in an all-or-nothing fashion; principles have a dimension of weight and are balanced. In Riggs v. Palmer (New York Court of Appeals, 1889) a grandson who murdered his grandfather could not inherit under the will, because no one should profit from his own wrong, although the statute of wills said nothing of the kind. That principle was law, yet it cannot be identified by a rule of recognition based on pedigree.
• No strong discretion. Judges in hard cases are bound by principles, so they do not legislate; they discover the rights the parties already have.
• Rights as trumps. Rights trump collective goals; arguments of principle (rights) differ from arguments of policy (collective welfare), and courts should decide on principle.
• Hercules, the ideal judge, constructs the theory that best fits and justifies the whole body of law.
• Law as integrity. The community should speak with one coherent voice; the judge is like a writer in a chain novel, adding a chapter that fits what has gone before and makes the work the best it can be. Interpretation has two dimensions: fit and justification.
• One right answer. Even in hard cases there is usually a right answer.
• The semantic sting. Positivists wrongly assume lawyers share criteria for using the word “law”; in fact legal disagreement is theoretical, about what the grounds of law are.

8. The positivist reply

• Inclusive (soft) positivism (Hart’s Postscript, Waluchow, Coleman): a rule of recognition may include moral criteria, such as a bill of rights that makes fairness a test of validity. Principles can then be law because the rule of recognition says so.
• Exclusive (hard) positivism (Raz): law claims authority, and a rule can have authority only if its content can be identified without moral reasoning; moral principles that judges apply are not yet law but reasons outside it.
• Hart’s Postscript also insisted that his project was descriptive and general, whereas Dworkin’s is evaluative and specific to particular legal cultures.

9. Indian illustrations

Indian constitutional adjudication is often used to support Dworkin. The basic structure (Kesavananda Bharati, 1973 INSC 91) is a set of principles of weight, not rules. Proportionality, adopted for rights limitation in K.S. Puttaswamy v. Union of India, 2017 INSC 801, is a balancing exercise of the kind Dworkin described. On the other side, the positivist can say that the Indian rule of recognition includes the Supreme Court’s authority under Article 141 to declare law, so these principles are law because the system recognises them.

How this is examined

For Hart’s contribution: critique of Austin, internal point of view, primary and secondary rules, rule of recognition, open texture, law and morals, and a paragraph on Dworkin as critic. For a comparison of Hart and Dworkin or Hart and Kelsen, use the tables. A short note may ask for the rule of recognition alone.