Shapiro Hart Dworkin Debate

PUBLIC LAW AND LEGAL THEORY WORKING PAPER SERIES
WORKING PAPER NO. 77 MARCH 2007
THE “HART-DWORKIN” DEBATE:

A SHORT GUIDE FOR THE PERPLEXED
SCOTT J. SHAPIRO
THE SOCIAL SCIENCE RESEARCH NETWORK ELECTRONIC PAPER COLLECTION:

http://ssrn.com/abstract=968657
The “Hart-Dworkin” Debate:
A Short Guide for the Perplexed
1
SCOTT J. SHAPIRO
For the past four decades, Anglo-American legal philosophy has been preoccupied –
some might say obsessed – with something called the “Hart-Dworkin” debate. Since
the appearance in 1967 of “The Model of Rules I,” Ronald Dworkin’s seminal
critique of H. L. A. Hart’s theory of legal positivism, countless books and articles
have been written either defending Hart against Dworkin’s objections or defending
Dworkin against Hart’s defenders.2 Recently, in fact, there has been a significant
uptick in enthusiasm for the debate from its already lofty levels, an escalation no
doubt attributable to the publication of the second edition of The Concept of Law,
which contained Hart’s much anticipated, but alas posthumous, answer to Dworkin in
a postscript. Predictably, the postscript generated a vigorous metadebate about its
1 I would like to thank Michael Bratman, Les Green, Brian Leiter, Joseph Raz, and Arthur Ripstein
for extremely helpful comments that enabled me to improve the present draft substantially. Thanks are
also due to Mark Greenberg for many helpful discussions related to the matters discussed in the paper.
This essay was written while a Fellow at the Center for Advanced Study in the Behavioral Sciences. I
am grateful for financial support provided by the Andrew W. Mellon Foundation.
2 Ronald Dworkin, “The Model of Rules I,” reprinted in Taking Rights Seriously (Cambridge, MA:
Harvard University Press, 1977).
Electronic copy of this paper is available at: http://ssrn.com/abstract=968657

2
cogency, with some arguing that Hart was wrong to reply to Dworkin in the way that
he did3 and others countering that such criticisms of Hart are unfounded.4
In this essay, I will not take sides in this controversy over Hart’s reply to
Dworkin. I will be interested, rather, in a more preliminary matter, namely, in
attempting to set out the basic subject matter of the debate. My chief concern,
therefore, will be to identify the core issue around which the Hart-Dworkin debate is
organized. Is the debate, for example, about whether the law contains principles as
well as rules? Or does it concern whether judges have discretion in hard cases? Is it
about the proper way to interpret legal texts in the American legal system? Or is it
about the very possibility of conceptual jurisprudence?
To pinpoint the core of the debate, I will examine at some length the main
argumentative strategies employed by each side to advance their cause. Thus, I will
begin by exploring Dworkin’s characterization and critique of Hart’s positivism and
will then follow up by presenting the rebuttals offered by Hart and his followers. My
hope is that by laying bear the basic structure of the debate, we will be able not only
to explain why the jurisprudential community has been fixated on this controversy,
3 See Scott J. Shapiro, “On Hart’s Way Out,” in Hart’s Postscript: Essays on the Postscript to the
Concept of Law, ed. J. Coleman (Oxford: Oxford University Press, 2001); “Law, Morality and the
Guidance of Conduct,” Legal Theory 6 (2000): 127–70; Jules L. Coleman, “Incorporationism,
Conventionality and the Practical Difference Thesis,” in Hart’s Postscript.
4 See Kenneth Einar Himma, “H. L. A. Hart and the Practical Difference Thesis,” Legal Theory 6
(2000): 1–43; W. J. Waluchow, “Authority and the Practical Difference Thesis,” Legal Theory 6
(2000): 45–81; Matthew Kramer, “How Morality Can Enter the Law,” Legal Theory 6 (2000): 83–
108; Matthew Kramer, “Throwing Light on the Role that Moral Principles Play in the Law,” Legal
Theory 8 (2002): 115–43.

3
but also to determine the most profitable direction for the debate to proceed in the
future.
Capturing the essence of a philosophical debate, however, can be a tricky
business for several different reasons. First, as in any debate, participants may not
agree on what they are arguing about. One side may firmly believe that the issue is
whether X is true, whereas the other supposes that it is whether Y is true.
Notoriously, the Hart-Dworkin debate began on just such a note. In “The Model of
Rules I,” Dworkin claimed that the dispute between him and Hart concerned whether
the law is a model of rules. This formulation of the debate, though, is misleading –
and has misled several generations of law students – because, as it is now generally
recognized, Hart never claimed that the law is simply a model of rules (in Dworkin’s
sense of “rule”), nor is he committed to such a position.5
Second, philosophical debates are hard to characterize because, unlike formal
debates, they are not usually about just one issue. In philosophy, everything is
ultimately connected to everything else, and hence philosophical controversies tend
to range over many different, though in-the-end related, questions. Thus, the Hart-
Dworkin debate concerns such disparate issues as the existence of judicial
5 In the Postscript, Hart accepts some responsibility for the confusion: “Much credit is due to
Dworkin for having shown and illustrated [the] importance [of legal principles] and their role in legal
reasoning, and certainly it was a serious mistake on my part not to have stressed their non-conclusive
force.” H. L. A. Hart, The Concept of Law, eds. Penelope Bulloch and Joseph Raz (Oxford: Clarendon
Press, 1994), 263. Yet he goes on to disavow Dworkin’s interpretation of his views: “But I certainly
did not in my use of the word ‘rule’ claim that legal systems comprise only ‘all or nothing’ standards
or near conclusive rules.”

4
discretion,6 the role of policy in adjudication,7 the ontological foundations of rules,8
the possibility of descriptive jurisprudence,9 the function of law,10 the objectivity of
value,11 the vagueness of concepts,12 and the nature of legal inference.13
Third and last, philosophical debates are difficult to represent because they
are typically moving targets. Philosophers are remarkably agile advocates and tend to
shift their positions to accommodate the objections of their opponents. The critique
of legal positivism that Dworkin offered in 1967, for example, differs dramatically
from the one that he presented in 1986. Any description must, therefore, attempt to
capture this fluidity by treating the debate as an evolving entity that over time adapts
to rational pressures coming from without and within.
6 Compare Ronald Dworkin, “Judicial Discretion,” Journal of Philosophy 60 (1963): 624–638 and
“Model of Rules I” with Hart’s Concept of Law, Ch. 7.
7 Compare Dworkin’s “Hard Cases” in Taking Rights Seriously with Hart’s Concept of Law, 128–36;
Kent Greenawalt, “Discretion and Judicial Discretion: The Elusive Quest for the Fetters that Bind
Judges,” Columbia Law Review 75 (1975): 359, 391.
8 Compare Dworkin’s “The Model of Rules II,” reprinted in Taking Rights Seriously, with Hart’s The
Concept of Law, 55–7 and 254–9.
9 Compare Ronald Dworkin’s Law’s Empire (Cambridge, MA: Harvard University Press, 1986), Chs.
1–2; Stephen Perry’s “Interpretation and Methodology in Legal Theory,” in Law and Interpretation,
ed. A. Marmor (Oxford: Clarendon Press, 1995); and Jeremy Waldron’s “Ethical (or Normative)
Positivism,” in Hart’s Postscript with Hart’s Concept of Law, vi, 248–50 and Jules Coleman’s The
Practice of Principle (Oxford: Oxford University Press, 2001) Ch. 12.
10 Compare Dworkin’s Law’s Empire, 93 with Hart’s Concept of Law, 249.
11 Compare Dworkin’s “On Objectivity and Interpretation,” in A Matter of Interpretation, Law’s
Empire, 76–86. and “Objectivity and Truth: You’d Better Believe It,” Philosophy & Public Affairs 25
(1996): 87–139 with Hart’s “American Jurisprudence through English Eyes: The Nightmare and the
Noble Dream,” in Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983), 139–40,
and “Legal Duty and Obligation,” in Essays on Bentham (Oxford: Clarendon Press, 1982) 149, 159.
12 Compare Dworkin’s “Is There Really No Right Answer in Hard Cases?” reprinted in A Matter of
Principle (Cambridge, MA: Harvard University Press, 1985), and “On Gaps in the Law,” in
Controversies about the Law’s Ontology, eds. Neil MacCormick and Paul Amselek (Edinburgh:
Edinburgh University Press, 1991) with Hart’s Concept of Law, 123–36, Joseph Raz’s “Legal
Reasons, Sources and Gaps,” in The Authority of Law (Oxford: Clarendon Press, 1979), and Timothy
Endicott’s Vagueness in Law (Oxford: Clarendon Press, 2000), esp. Chs. 4 and 8.
13 Compare Dworkin’s “The Model of Rules I,” 41 and “Model of Rules II” with Hart’s Concept of
Law, Chs. 5 and 6.
5
Despite these complications, I think that there is an important unity to the
Hart-Dworkin debate that can be described in a relatively straightforward manner. I
will suggest in what follows that the debate is organized around one of the most
profound issues in the philosophy of law, namely, the relation between legality and
morality. Dworkin’s basic strategy throughout the course of the debate has been to
argue that, in one form or another, legality is ultimately determined not by social
facts alone, but by moral facts as well. In other words, the existence and content of
positive law is, in the final analysis, governed by the existence and content of the
moral law. This contention, therefore, directly challenges and threatens to undermine
the positivist picture about the nature of law, in which legality is never determined by
morality but rather by social practice. For if judges must consider what morality
requires in order to decide what the law requires, social facts alone cannot determine
the content of the law. As one might expect, the response by Hart and his followers
has been to argue that this dependence of legality on morality is either merely
apparent or does not, in fact, undermine the social foundations of law and legal
systems.
Because the Hart-Dworkin debate is, as mentioned earlier, a dynamic entity, I
will try also to show how Dworkin modified his critique to circumvent the responses
of Hart’s followers. As we will see, however, virtually no attention has been paid to
this latter challenge, which is especially surprising given that none of the previous
positivistic defenses are helpful against it. I will then sketch out a possible response
6
positivists might offer to this extremely powerful objection. My aim in this last part
of the paper will be not merely to defend positivism, but also to show why it is
important that it be defended. As I will argue, the primacy that positivism affords to
social facts reflects a fundamental truth about law, namely, that the law guides
conduct through the authoritative settlement of moral and political issues. Moral facts
cannot ultimately determine the law, as I will show, because they would unsettle the
very questions that the law aims to resolve.
1. THE OPENING BLAST
Whatever else the Hart-Dworkin debate is about, it is at least about the validity of
Hart’s version of legal positivism. To understand the debate, therefore, we must first
examine how Dworkin characterized its core commitments. Once this has been set
out in Section A, we will turn to Dworkin’s first critique of that position in Section B.
A. Three Theses
In “The Model of Rules I,” Dworkin sets out three theses to which he believes Hart
and most legal positivists are committed.
(1) “The law of a community can be identified and distinguished by specific criteria, by tests
having to do not with their content but with their pedigree or the manner in which they were
adopted or developed.”
7
(2) “The set of these valid legal rules is exhaustive of ‘the law,’ so that if someone’s case is
not clearly covered by such a rule (because there is none that seem appropriate, or those that
seem appropriate are vague, or for some other reason) then that case cannot be decided by
‘applying the law.’ It must be decided by some official, like a judge, ‘exercising his
discretion.’”
(3) “To say that someone has a ‘legal obligation’ is to say that his case falls under a valid
legal rule that requires him to do or to forbear from doing something.”14
Because this description of Hart’s theory is somewhat idiosyncratic, we should dwell
on it for a moment.
The first thing to notice about the first proposition, which we can call the
Pedigree Thesis, is that although Dworkin portrays it as a singular commitment, it is
in fact a composite claim. The initial part asserts that in any community that has a
legal system, there exists a master rule for distinguishing law from non-law. The
latter part places an important restriction on this rule: the criteria of legality set out by
the master rule may refer only to social facts – in particular, to whether the rule has
the appropriate social “pedigree” or source. Such a rule may, for example, require
that the norms related to certain subject matter be enacted solely by the legislature by
majority vote, or it may recognize the actions of other bodies, such as courts or
administrative agencies, in these regards. The master rule of any legal system,
however, may not set out criteria of legality that either refer to a norm’s moral
14 Ronald Dworkin, “The Model of Rules I,” 17.

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properties or require for their implementation the exercise of moral reasoning. No
master rule, therefore, may condition legality on morality.
Dworkin clearly intends the Pedigree Thesis to capture Hart’s doctrine of the
rule of recognition.15 One might question, however, whether it does so. For example,
Hart nowhere imposes a pedigree requirement on the rule of recognition; indeed, in
certain places, he specifically allows that the criteria of legality may explicitly refer
to moral considerations.16 In addition to being too strong, the Pedigree Thesis is too
weak. For Hart specifically claims that the rule of recognition is a “social” rule, that
is, a convention among judges to treat certain rules as authoritative. The Pedigree
Thesis, however, places no social requirement on the master rule. Thus, a test for
legality may satisfy the Pedigree Thesis and still not be a rule of recognition in Hart’s
sense.
The second positivistic thesis holds that the law consists solely in legal rules.
Accordingly, if a case is not clearly covered by an existing legal rule, either because
there seems to be no applicable legal rule or because the rule contains vague or
ambiguous terms, the deciding judge cannot apply the law but must exercise his or
her discretion to resolve the case. Call this the Discretion Thesis. Finally, the third
thesis is the counterpart of the Discretion Thesis for “legal obligation”: it claims that
legal obligations can be generated only by legal rules. Call this the Obligation Thesis.
15 Ibid., 39.
16 See, for example, Hart’s Concept of Law, 204.
9
Whereas the Pedigree Thesis is at least recognizable as a colorable
commitment of Hart’s theory, the Discretion and Obligation Theses do not seem to
state peculiarly positivistic positions. After all, what else does the law consist in if
not rules? And where else would legal obligations arise if not from them? To
understand the distinctive nature of the Discretion and Obligation Theses, we must
first understand what Dworkin means by a “rule” and how rules differ from other
norms that he calls “principles.”
In Dworkin’s terminology, rules are “all or nothing” standards.17 When a
valid rule applies in a given case, it is conclusive or, as a lawyer would say,
“dispositive.” Because valid rules are conclusive reasons for action, they cannot
conflict. If two rules conflict, then one of them cannot be a valid rule.
By contrast, principles do not dispose of the cases to which they apply.18
They lend justificatory support to various courses of actions, but they are not
necessarily conclusive. Valid principles, therefore, may conflict and typically do.
Moreover, in contrast to rules, principles have “weight.” When valid principles
conflict, the proper method for resolving the conflict is to select the position that is
supported by the principles that have the greatest aggregate weight.
Given the logical distinction between these two types of norms, we can see
that the Discretion and Obligation Theses are far from trivial. The Discretion Thesis
17 Ronald Dworkin, “The Model of Rules I,” 24.

18 Ibid., 25–7.
10
holds that the law consists solely of legal rules; no principles, in other words, are
legal principles. Likewise, the Obligation Thesis states that legal obligations can be
generated only by legal rules. Where legal rules are inapplicable, legal obligations do
not exist, and judges by necessity must look beyond the law to decide the case.
B. Against Judicial Discretion
In “The Model of Rules I,” Dworkin argues that legal positivism, so characterized,
cannot account for the manifest existence of legal principles. Hart’s theory, or any
such positivistic account, is a “model of and for a system of rules”19 and, as such,
must be rejected.
Dworkin begins his critique by arguing that the Discretion Thesis is
implausible insofar as it ignores the many cases where judges regard themselves as
bound by law even though no rules are clearly applicable. In Henningsen v.
Bloomfield Motors, for example, the court was asked to hold an automobile maker
liable for injuries sustained as the result of defective manufacturing despite the fact
that the injured plaintiff signed a waiver of liability.20 The court could find no
explicit rule that would authorize it to ignore such a waiver but nevertheless held for
the plaintiff. In support of its decision it cited a number of legal principles, including
“freedom of contract is not such an immutable doctrine as to admit of no
19 Ibid., 22.
20 32 N.J. 358, 161 A.2d 69 (1960), discussed in Dworkin, Taking Rights Seriously, 25–6.
11
qualification in the area in which we are concerned”21 and “in a society such as ours
the automobile manufacturer is under a special obligation in connection with the
construction, promotion, and sale of his cars.”22 These principles, the court reasoned,
were of such great importance that they outweighed contrary principles, such as those
supporting the freedom to contract, which militated in favor of enforcing the waiver.
According to Dworkin, Henningsen was not an aberration. “Once we identify
legal principles as separate sorts of standards, different from legal rules,
we are suddenly aware of them all around us. Law teachers teach them, law books
cite them, legal historians celebrate them.”23 In fact, legal principles are most
conspicuously at play in hard cases, where they guide and constrain judicial decision
making in the absence of legal rules. Legal positivism ignores the existence of these
norms precisely because it holds, via the Discretion Thesis, that cases such as
Henningsen are not governed by law. Legal positivism, in other words, is a model of
rules only.
Dworkin is careful to point out that there are several “weak” senses in which
judges must exercise discretion even in hard cases.24 Judges must exercise discretion
in the sense that they are required to use their judgment in reasoning from legal
principles to legal conclusions. At least sometimes as well, they have discretion in
the sense that they have the final say in a particular case. Dworkin denies, however,
21 32 N.J. 388, 161 A.2d 86.

22 32 N.J. 387, 161 A.2d 85.
23 Dworkin, “Model of Rules I,” 28.
24 Ibid., 31–4.
12
that judges must exercise what he calls “strong” discretion, namely, the idea that they
must look beyond the law and apply extralegal standards to resolve the case at hand.
Once one recognizes the existence of legal principles, Dworkin claims, it becomes
clear that judges are bound by legal standards even in hard cases.
C. Content, Not Pedigree
According to Dworkin, the pervasiveness of legal principles not only falsifies the
Discretion Thesis, it also discredits the Pedigree Thesis. This is so because the
legality of principles depends, at least sometimes, simply on their content.
The origin of [the Henningsen principles] as legal principles lies not in a particular decision
of some legislature or court, but in a sense of appropriateness developed in the profession and
the public over time. Their continued power depends upon this sense being sustained. If it no
longer seemed unfair to allow people to profit by their wrongs, or fair to place special
burdens upon oligopolies that manufacture potentially dangerous machines, these principles
would no longer play much role in new cases, even if they had never been overruled or
repealed.25
Insofar as positivism requires legality to be purely a function of pedigree, it cannot
account for the existence of principles such as those operative in Henningsen, whose
legal recognition is conditioned on the moral perception that, for example, it is “fair
25 Ibid., 40.
13
to place special burdens upon oligopolies that manufacture potentially dangerous
machines.”26
Dworkin does not, of course, claim that pedigree is legally irrelevant. He
concedes that legal principles usually have institutional support and that having such
support is normally crucial to their legality. “True, if we were challenged to back up
our claim that some principle is a principle of law, we would mention any prior cases
in which that principle was cited, or figured in the argument. … Unless we could find
some such institutional support, we would probably fail to make out our case.”27
Dworkin does, however, deny that a positivistic master rule could be constructed that
would test a principle based on its institutional support.
We argue for a particular principle by grappling with a whole set of shifting, developing and
interacting standards (themselves principles rather than rule) about institutional
responsibility, statutory interpretation, the persuasive force of various sorts of precedent, the
relation of all these to contemporary moral practices, and hosts of the other standards. We
could not bolt all of these together into a single ‘rule’, even a complex one, and if we could
the result would bear little to Hart’s picture of a rule of recognition, which is the picture of a
fairly stable master rule specifying ‘some feature or features, possession of which by a
suggested rule is taken as a conclusive affirmative indication that it is a rule.’28
Dworkin’s argument appears to be this: the legal impact of a principle’s institutional
support on its legality and weight is itself determined by principles, namely, those
26 Ibid.
27 Ibid.
28 Ibid., citing Hart’s The Concept of Law, 94.
14
relating to institutions and their authority. For example, whether a judge should
recognize the principles in Henningsen and, if so, how much weight to attribute to
them depends on a whole constellation of principles relating to the institutional
authority of common law courts, their relations to legislatures, and to ordinary moral
practices. These institutional principles, in turn, are supported by very broad
principles of political morality.29 Dworkin believes that no rule could be fashioned
that accurately reflects the verdicts of all these political principles, presumably
because the possibilities that would have to be considered and codified are infinite in
number. Moreover, these principles and their weights fluctuate over time, based on
their own degree of institutional support, and hence any resulting master rule would
fail to be stable.
According to Dworkin, therefore, the Pedigree Thesis must be rejected for
two reasons. First, legal principles are sometimes binding on judges simply because
of their intrinsic moral properties and not because of their pedigree. Second, even
when these principles are binding in virtue of their pedigree, it is not possible to
formulate a stable rule that picks out a principle based on its degree of institutional
support. Having previously disposed of the Discretion Thesis, Dworkin concludes
that legal positivism must be rejected as an adequate theory of law.
29 See Dworkin, “Model of Rules I, 41: “We might argue, for example, that the use we make of
earlier cases and statutes is supported by a particular analysis of the point of the practice of legislation
or the doctrine of precedent, or by the principles of democratic theory, or by a particular position on
the proper division of authority between national and local institutions, or some-thing else of that
sort.”
15
2. THE ISSUE
Dworkin is often criticized for having ascribed to Hart a highly implausible view,
namely, that the law consists solely of rules, never of principles. When Hart spoke of
legal rules, it is usually pointed out, he did not mean to single out only “all or
nothing” standards that cannot conflict and lack the dimension of weight.30 He
simply intended to refer to standards that are binding in a particular legal system and
have as their function the guidance and evaluation of conduct.
These criticisms are not entirely fair, however. Understood charitably,
Dworkin’s attribution to Hart was an exercise in charitable interpretation. On this
reading, Dworkin was not reporting anything that Hart actually said; rather, he was
attempting to explain Hart’s doctrine of strong discretion by attributing to him a view
that he never expressed but nonetheless held. Why, Dworkin asked, did Hart believe
that judges are not bound by law in hard cases, despite the fact that they appeal to
principles to resolve such cases? It must be, he answered, that Hart did not believe
that these principles are part of the law. If the law contains only rules, then when the
rules “run out,” so must the law.
30 See, for example, Raz, “Legal Principles and the Limits of Law,” Yale Law Journal 81 (1972):823,
845; Shapiro, “On Hart’s Way Out,” 163; Leiter, “Beyond the Hart-Dworkin Debate,” American
Journal of Jurisprudence 48 (2003):17, 20; and Lyons, “Principles, Positivism and Legal Theory,”
Yale Law Journal 87 (1977):415, 422. See also Hart’s comments in the Postscript to his Concept of
Law, as I quoted in footnote 5.
16
Although Dworkin’s interpretation of Hart is fair, I don’t think it is the best
explanation for Hart’s theory of judicial discretion. Its major defect stems from the
fact that Hart explicitly offered a very different, and more plausible, explanation for
his doctrine of strong discretion. According to Hart, judicial discretion is a necessary
byproduct of the inherent indeterminacy of social guidance. It is impossible, Hart
argued, to transmit to others standards of conduct that settle every contingency in
advance. Guidance by precedent is imperfect because, although the exemplar is
identified, the relevant standard of similarity is not. Although common sense will
eliminate certain similarity standards as inappropriate, there will always be a healthy
number of conflicting standards that will seem more or less reasonable. Whereas
guidance by legislation might settle some of these doubts, Hart maintained that the
use of general terms in statutes cannot eliminate them all. This is so because of the
“open texture” of language. “In all fields of experience, not only that of rules, there is
a limit, inherent in the nature of language, to the guidance which general language
can provide. There will be plain cases constantly recurring in similar contexts to
which general expressions were clearly applicable … but there will also be cases
where it is not clear whether they apply or not.”31
Thus, Hart’s doctrine about judicial discretion is not predicated on a model of
rules. It rests, rather, on a picture of law that privileges social acts of authoritative
guidance. For Hart, a legal rule is a standard that has been identified and selected as
31 Hart, Concept of Law, 123.

17
binding by some social act, be it an individual directive, a legislative enactment, a
judicial decision, an administrative ruling, or a social custom. Judicial discretion is
inevitable, according to Hart, because it is impossible for social acts to pick out
standards that resolve every conceivable question.
As we can see, the debate between Hart and Dworkin does not concern
whether the law contains principles as well as rules. This cannot be the issue of the
debate because it was never an issue of the debate.32 Contrary to Dworkin’s
interpretation, Hart never embraced the model of rules, either explicitly or implicitly.
Nor would it be accurate to claim that the core issue of the debate revolves
around the question of judicial discretion. To be sure, Hart and Dworkin did disagree
about whether judges have strong discretion in hard cases. Yet this dispute is a
derivative one: both sides take their positions on judicial discretion because of their
very different theories about the nature of law.
As we have just seen, Hart held that judges must sometimes exercise strong
discretion because he takes the law to consist in those standards socially designated
as authoritative. Dworkin, on the other hand, believes that judges do not have strong
discretion precisely because he denies the centrality of social guidance to
determining the existence or content of legal rules. Recall that the point of Dworkin’s
32 Although no one disputes that the law contains principles as well as rules, some have objected to
the way Dworkin distinguishes between these two classes of norms. In particular, they have argued
that rules do not always operate in an “all or nothing” fashion. See, for example, Raz, “Legal
Principles and the Limits of Law” and George Christie, “The Model of Principles,” Duke Law Journal
17 (1968):649. For Dworkin’s response, see Dworkin, “Models of Rules II,” 71–80.
18
critique in “The Model of Rules I” is to show that the law contains norms that are
binding even though they have not been the subject of past social guidance. They are
binding, rather, because of their moral content. Moreover, even with respect to those
norms that have been the subject of past social guidance, the bindingness of those
norms, according to Dworkin, does not depend on the fact that they have been
socially designated as binding. They are binding because the principles of political
morality make them binding. Thus, even when social guidance runs out, the law does
not, for moral guidance does not.
The “real” debate between Hart and Dworkin, therefore, concerns the clash of
two very different models of law. Should law be understood to consist in those
standards socially designated as authoritative? Or is it constituted by those standards
morally designated as authoritative? Are the ultimate determinants of law social facts
alone or moral facts as well? Dworkin’s challenge purports to demonstrate that we
must choose the latter. As we will see, the positivist response has been to argue that
Dworkin has shown no such thing.
3. THE RESPONSES
The traditional moniker “the Hart-Dworkin debate” is slightly deceiving, for it tends
to create the impression that Hart and Dworkin have been the sole participants in the
debate. In point of fact, however, Hart never directly responded in writing to

19
Dworkin’s critique during his lifetime.33 He apparently left to others the task of
defending his theory.
In this section, I will survey the two main responses offered by Hart’s
followers to Dworkin’s challenge. As we will see, some positivists accepted
Dworkin’s characterization of legal positivism but rejected his proposed explanation
for why legal principles are part of the law. For them, legal norms are never valid
because of their moral content – the principles that Dworkin cites either have social
pedigrees or they are not law. Others accepted Dworkin’s explanation for the legality
of principles as conceptually possible, and even empirically plausible, but rejected
his characterization of legal positivism. For these theorists, legal principles can be
valid in virtue of their moral content without rejecting the core commitments of legal
positivism.
A. Exclusive Legal Positivism
Although Hart himself seemed to reject the Pedigree Thesis, some legal positivists
agreed with Dworkin about its centrality to positivism and, hence, enthusiastically
embraced it. For them, tests of legality must always distinguish law from non-law
based exclusively on their social source and must be implementable without resort to
33 Hart did criticize Dworkin’s positive proposals on several occasions. See Hart, “Legal Duty and
Obligation,” 147–53; “American Jurisprudence through English Eyes: The Nightmare and the Noble
Dream,” 137–41; “Law in the Perspective of Philosophy,” in Essays in Jurisprudence and Philosophy,
153–8; and “Comment on Dworkin, ‘Legal Theory and the Problem of Sense’,” in Issues in
Contemporary Legal Philosophy: The Influence of H. L. A. Hart, ed. Ruth Gavison (Oxford:
Clarendon Press, 1987).
20
moral reasoning. Traditionally, these positivists have been known as “hard” or
“exclusive” legal positivists.34
How, then, do exclusive legal positivists respond to Dworkin’s claim that
judges are often bound by principles that have no pedigree? One reply has been to
point out that these norms do have pedigrees, appearances notwithstanding.35 For
these principles typically have been used by courts over a period of time as the basis
for their decisions. This usage amounts to the existence of a “judicial custom,”
thereby constituting an adequate social pedigree from the perspective of the Pedigree
Thesis.
The weakness of this response, however, is that judges often take themselves
to be obligated to apply principles that seem entirely novel. As Dworkin pointed out,
no court before Henningsen applied the principle that automobile manufacturers are
subject to a greater standard of care. Yet that court nevertheless felt compelled to
apply that norm.
Accordingly, exclusive legal positivists have offered a second, more nuanced
response. They concede that judges are sometimes legally obligated to apply
34 Joseph Raz, exclusive legal positivism’s leading advocate, refers to his view as the commitment to
the Sources Thesis. The Sources Thesis was first set out in “Legal Positivism and the Sources of
Law,” in Raz, The Authority of Law and received its most vigorous defense in his “Authority, Law and
Morality,” reprinted in Raz, Ethics in the Public Domain (Oxford: Clarendon Press, 1994). Raz further
develops his position in Joseph Raz, The Concept of a Legal System, 2nd ed. (Oxford: Clarendon
Press, 1980) 211–12; “Problems about the Nature of Law,” “The Inner Morality of Law,” and “The
Autonomy of Legal Reasoning,” all appearing in Ethics in the Public Domain; and “Postema on Law’s
Autonomy and Public Practical Reasons: A Critical Comment,” Legal Theory 4 (1998):1.
35 See, for example, Genaro Carrio, Legal Principles and Legal Positivism, (Buenos Aires: Abeledo-
Perrot, 1971), 25.
21
principles that lack any institutional pedigree. But this fact, they contend, does not
impugn the Pedigree Thesis. For in such cases, judges are simply under a legal
obligation to apply extralegal standards.
According to this second response, first made prominent by Joseph Raz,
Dworkin’s critique assumes that the law of a system consists of all those standards
that judges of that system are required to apply.36 From this it follows, of course, that
if judges are required to apply moral principles that lack pedigrees, these principles
must be legal principles. However, Raz argues, this assumption is mistaken. In
choice of laws cases, for example, judges are often required to apply the law of a
foreign jurisdiction. Yet the obligation to apply foreign rules does not transmute them
into local rules. The distinction between normative systems is preserved even when
one system borrows from another. Analogously, Raz claims, the judicial obligation to
look to morality does not ipso facto incorporate morality into the law.37
According to Raz, therefore, when pedigreed standards run out, judges are
under a legal obligation to look to moral principles to resolve the case at hand.
Furthermore, in such cases, judges are exercising strong discretion insofar as they are
obligated to look beyond the law and apply these extralegal principles to the case at
hand. Strong discretion does not, therefore, entail the existence of “extra-legal
36 See Joseph Raz, “Postscript to ‘Legal Principles and the Limits of Law’,” in Ronald Dworkin and
Contemporary Jurisprudence, ed. Marshall Cohen (Totowa, NJ: Rowman& Allanheld, 1983), 84–5.
37 Raz, The Authority of Law, 46.
22
principles [a judge] is free to apply if he wishes.”38 Rather, judges are legally
constrained to apply certain extralegal principles, namely, the morally best ones.39
B. Inclusive Legal Positivism
Most legal positivists, however, have not taken the exclusivist route. Instead, they
have sought to deflect Dworkin’s critique by rejecting his characterization of
positivism. Legal positivism, they have argued, does not prohibit moral tests of
legality.40 Hence, even if Dworkin is right and judges are sometimes obligated to
apply principles that lack pedigrees in mature systems such as our own, positivism
would remain unscathed. Positivists who embrace this position are usually known as
“soft” or “inclusive” legal positivists.
This response to Dworkin begins by setting out a more traditional version of
legal positivism, one that sees it as defined by two commitments. The first thesis,
sometimes called the “Separability Thesis,” denies any necessary connection between
legality and morality. For the positivist, there is some possible legal system where the
38 Dworkin, “Model of Rules I,” 29 (emphasis added).

39 See, for example, Joseph Raz, “Legal Principles and the Limits of Law,” 847–8. Timothy Endicott
has recently argued that when judges are legally required to apply moral principles to plug a gap in the
law, and those principles dictate a unique solution, judges lack strong discretion. This represents
somewhat of a compromise view: with Dworkin, Endicott believes that judges do not always have
strong discretion in hard cases; with Raz, he believes that in these situations, judges are making, not
finding, law. See Timothy Endicott, “Raz on Gaps – The Surprising Part,” in Rights, Culture and
Law, ed. L. H. Meyer, S. L. Paulson, and T. W. Pogge (Oxford: Oxford University Press, 2003).
40 For this type of response see Philip Soper, “Legal Theory and the Obligation of a Judge: The
Hart/Dworkin Dispute,” Michigan Law Review 75 (1977): 473; David Lyons, “Principles, Positivism
and Legal Theory,” Yale Law Journal 87 (1977): 415; Jules Coleman, “Negative and Positive
Positivism,” in Markets, Morals and the Law (Cambridge: Cambridge University Press, 1988);
Wilfred Waluchow, Inclusive Legal Positivism (Oxford: Clarendon Press, 1994).
23
legality of a norm does not depend on any of its moral properties: in that system, an
unjust law is still a law. The second thesis, sometimes known as the “Social Fact
Thesis,” holds that the existence and content of the law are ultimately determined by
certain facts about social groups. Legal facts are grounded, in the final analysis, on
social, not moral, facts.
Clearly, the Separability Thesis does not rule out master tests that incorporate
moral criteria of legality. It states simply that tests of legality need not be moralized,
not that they could not. Would the existence of such tests, however, offend the Social
Fact Thesis? Not necessarily, according to the inclusive legal positivist. The Social
Fact Thesis would be satisfied, on this view, just in case such tests of legality
themselves have social pedigrees. For as long as the criteria of legality are set out in a
rule whose existence is underwritten by a social fact, the law would have the
appropriate social foundations.
In fact, the inclusive legal positivist points out that Hart’s master rule, the rule
of recognition, has the requisite pedigree. As mentioned earlier, the rule of
recognition is necessarily a social rule – it is a convention among judges to recognize
certain norms that bear certain characteristics as binding. The Social Fact Thesis is
compatible with rules of recognition that set out nonpedigree, moral criteria of
legality, for, contrary to the exclusive positivist, it does not require every legal rule to
have a social source – it merely requires that the rule of recognition have one. Thus,
as long as legal positivism’s commitment to social facts can be satisfied by the

24
existence of a social rule of recognition, there is no bar to treating morality as a
condition of legality.41
The simplicity of this response, however, is offset by a hidden weakness. It
would seem that the inclusive legal positivist cannot claim that the rule of recognition
requires judges to resolve hard cases by resorting to moral principles and still
maintain that the rule of recognition is a social rule. The difficulty stems from the
fact, as Dworkin pointed out in “The Model of Rules II,”42 that the contents of social
rules are determined by agreement. A social rule imposes an obligation to p if and
only if members of the group agree that p is required. Controversy about the
requirements of a social rule, thus, seems impossible: social rules rest on agreement,
whereas controversy entails disagreement.
Yet, the objection continues, in hard cases, judges disagree with one another
about which principles they are required to apply. If the rule of recognition required
judges to apply moral principles, hard cases would, therefore, involve controversy
about the content of the rule of recognition. However, as mentioned above,
controversy about a social rule is impossible. Hence, if inclusive legal positivists
41 Some positivists took a slightly different tack: they claimed that as long as a norm is morally
derivable from a legal norm that has a pedigree, the morally derivable norm need not have a pedigree
to be law. Suppose, for example, that a norm imposing a duty of reasonable care on everyone has a
legally appropriate pedigree and that reasonable care requires homeowners to clear snow from the
sidewalk in front of their house. These positivists – sometimes called “incorporationists” – hold that
the snow-clearing norm is a legal norm despite its lack of a pedigree because it is morally entailed by a
pedigreed norm. For such a response, see Rolf Sartorious, “Social Policy and Judicial Legislation,”
American Philosophical Quarterly 8 (1971): 151.
42 Ronald Dworkin, “The Model of Rules II.”
25
maintain that the rule of recognition requires hard cases to be resolved by reference
to moral principles, then the rule of recognition cannot be a social rule.
In “Negative and Positive Positivism,” Jules Coleman showed how to
overcome this objection.43 Coleman distinguished between two types of
disagreements. The first type involves disputes over the content of the rule of
recognition. Call these “content disputes.” By contrast, certain disagreements
presuppose consensus about the content of a rule but involve disputes about its
implementation. Call these “application disputes.”
Coleman suggested that we see hard cases as involving disputes about the
applicability of the rule of recognition. They are application disputes, not content
disputes. In controversial cases, there exists an accepted convention among judges to
look toward the principles of morality to resolve legal disputes. When judges
disagree about which principles to apply, they are disagreeing over the correct
application of the rule of recognition, not about its content. All judges agree, in other
words, that the rule of recognition requires them to look toward moral principles in
adjudication, thereby making those moral principles valid law. They simply disagree
about which principles are moral principles (and hence legal principles).
It should be noted that Hart eventually endorsed Coleman’s strategy in the
Postscript to The Concept of Law. First, Hart rejected Dworkin’s contention that
exclusive legal positivism was the only true positivism. “In addition to such pedigree
43 Coleman, “Negative and Positive Positivism,” 20.

26
matters the rule of recognition may supply tests relating not to the factual content of
laws but to their conformity with substantive moral values or principles.”44
Moreover, he dismissed Dworkin’s inference that controversy entails the absence of a
convention. “Judges may be agreed on the relevance of such tests as something
settled by established judicial practice even though they disagree as to what the tests
require in particular cases.”45
4. ACT TWO
A detailed examination and comparison of these two versions of legal positivism, and
their respective responses to the Dworkin, are clearly beyond the scope of this essay.
I will, however, simply assert without argument that Hart’s followers have succeeded
in blunting the force of Dworkin’s critique in “The Model of Rules I.” The fact that
judges are sometimes obligated to apply moral principles in hard cases does not
show, by itself, that legal positivism is false. This is not to say, of course, that such a
critique could not be made out but only that Dworkin has yet to make it.
Perhaps Dworkin sensed the impasse as well, for his critique changed
dramatically after “The Model of Rules I.” As we will see, the new objection, first
broached in “The Model of Rules II” but fully developed only in Law’s Empire,
attempts to show that legal positivists are unable to account for a certain type of
44 Hart, Concept of Law, 258.

45 Ibid., 258–9.
27
disagreements that legal participants frequently have, namely, those that concern the
proper method for interpreting the law. The only plausible explanation for how such
disagreements are possible, Dworkin claimed, is that they are moral disputes.
Contrary to legal positivists, therefore, Dworkin argued that the law does not rest on
social facts alone but is ultimately grounded in considerations of political morality as
well as institutional legitimacy .
As we will see, this critique of positivism is extremely powerful. Moreover,
none of the responses to the first critique mentioned earlier are effective against it.
Whether positivists have any defense against it is a matter to which I will return at
the end of the essay.
A. Theoretical Legal Disagreements
At the beginning of Law’s Empire, Dworkin argues that the law is a social
phenomenon that has a special structure. Legal practice, he claims, is
“argumentative,”46 by which he means that the practice consists largely in
participants advancing various claims about what the law demands and defending
such claims by offering reasons for them. “Every actor in the practice understands
that what it permits or requires depends on the truth of certain propositions that are
46 Dworkin, Law’s Empire, 13.

28
given sense only by and within the practice; the practice consists in large part in
deploying and arguing about these propositions.”47
To understand the law as a social phenomenon, then, one must appreciate
that, for the most part, it is a practice of argumentation. Legal philosophers must,
therefore, study the different modes of argumentation that legal participants actually
use when engaging in legal reasoning. However, as Dworkin argues, modern
jurisprudence fails utterly in this regard. Following the dominant approaches in legal
philosophy, he claims, many of the disagreements that legal participants engage in
either do not exist or are complete nonsense.
To formulate this charge, Dworkin begins by introducing two related sets of
distinctions. He first distinguishes between “propositions of law” and “grounds of
law.”48 A proposition of law is a statement about the content of the law in a particular
legal system, such as “the law forbids states to deny anyone equal protection within
the meaning of the Fourteenth Amendment” and “the law requires Acme Corporation
to compensate John Smith for the injury he suffered in its employ in February.”
Propositions of law may be true or false. The proposition “motorists are not legally
permitted to drive in California over 65 miles per hour” is true, whereas “motorists
are not legally permitted to drive in California after sunset” is false.
47 Ibid.
48 Ibid., 4.
29
Propositions of law are true in virtue of the “grounds of law.” In California,
for example, propositions of law are true (roughly speaking) if a majority of state
legislators vote for bills that contain texts to those effects and the governor then signs
it. These acts of legislation make propositions of California law true and hence are
grounds of law in the California legal system.
Given the distinction between propositions and grounds of law, Dworkin
argues that two different types of legal disagreements are possible.49 The first type
involves disagreements about whether the grounds of law have in fact obtained.
Parties could dispute, for example, whether Congress passed a certain law by the
requisite majorities or whether the president vetoed the bill. Dworkin calls these
“empirical disagreements.”
The second type of disagreement does not relate to whether the grounds of
law have obtained; rather, it involves conflicting claims about what the grounds of
law are. For example, one party to a dispute might argue that a statute is valid
because Congress has the authority to enact a certain kind of legislation and has so
acted. The second party might concede that the formal conditions for enactment have
been met but nevertheless claim that Congress lacks the authority to so legislate.
These parties are not embroiled in an empirical disagreement inasmuch as they agree
about the historical record. According to Dworkin, they are engaged in a
“theoretical” disagreement about the law. They are disagreeing about the identity of
49 Ibid., 4–6.
30
the grounds of law, that is, about what must take place in their legal system before a
proposition of law can be said to be true or false.
With these distinctions in tow, Dworkin declares: “Incredibly, our
jurisprudence has no plausible theory of theoretical disagreement in law.”50 This is so
because “our jurisprudence” is committed to a “plain-fact” view of law.
The plain fact view, according to Dworkin, consists of two basic tenets. First,
it maintains that the grounds of law in any community are fixed by consensus among
legal officials. If officials agree that facts of type f are grounds of law in their system,
then facts of type f are grounds of law in their system. Second, it holds that the only
types of facts that may be grounds of law are those of plain historical fact.
The law is only a matter of what legal institutions, like legislatures and city councils and
courts, have decided in the past. If some body of that sort has decided that workmen can
recover compensation for injuries by fellow workmen, then that is the law. If it has decided
the other way, then that is the law. So questions of law can always be answered by looking in
the books where the records of institutional decisions are kept.51
As Dworkin convincingly argues, the plain-fact view cannot countenance the
possibility of theoretical legal disagreements. For if, according to its first tenet, legal
participants must always agree on the grounds of law, then it follows that they cannot
disagree about the grounds of law. Any genuine disagreement about the law must
50 Ibid., 6.
51 Ibid., 7.
31
involve conflicting claims about the existence or nonexistence of plain historical
facts. They must, in other words, be purely empirical disagreements.
B. The Prevalence of Theoretical Disagreements
Dworkin proceeds to argue that, pace the plain-fact view, theoretical disagreements
do exist in the law. He makes his case by presenting numerous examples where it is
plausible to suppose that legal participants all agree about the historical record but
dispute their legal significance. For example, in Tennessee Valley Authority v. Hill,
several conservation groups sued the Tennessee Valley Authority (TVA) to prevent
them from completing a $100 million dollar dam project.52 They claimed that the
dam would threaten the existence of the snail darter – a three-inch fish of no
particular scientific, aesthetic, or economic interest – and hence would violate the
Endangered Species Act of 1973. The TVA, however, argued that the Endangered
Species Act did not apply to a project authorized, funded, and substantially
constructed before it was passed and, hence, should not be construed to prohibit the
dam’s completion.
The Supreme Court sided with the conservationists. Although Chief Justice
Burger, writing for the majority, admitted that halting the project would involve an
enormous waste of public funds and, from a policy perspective, could not be
justified, he noted that the text clearly requires the government to terminate projects
52 Tennessee Valley Authority v. Hill, 437 US 153 (1978).

32
posing risks to species designated as “endangered.” Furthermore, he could find no
indication that Congress intended otherwise. Burger thus concluded that the Court
had no choice but to issue the injunction, even at so late a date.
The dissent, led by Justice Powell, argued that courts should not construe
texts to lead to absurd results, except where it can be demonstrated that such results
were intended by the legislature. Because it would be ludicrous to shut down a nearly
completed $100 million construction project simply to save an unimportant, albeit
endangered, fish and because Congress did not clearly endorse this result, the Court
is obligated to give an interpretation that “accords with some modicum of common
sense and the public weal.”53
Dworkin argues that the disagreement between Burger and Powell is
ultimately theoretical in nature.54 Both sides agreed that the Endangered Species Act
of 1973 is valid law, that halting the construction of the dam is terribly wasteful even
in the light of the benefits to the snail darter, and that Congress never considered this
type of case when drafting or voting on the legislation. Their disagreement concerned
the legal relevance of these plain facts. According to Burger, the plain meaning of the
text should control even when absurdities follow unless compelling evidence can be
found to show that Congress did not intend the absurd result. Powell, on the other
hand, argued that plain meaning should not control when absurdities follow unless
compelling evidence can be found that Congress did intend the absurd result.
53 Ibid., 196.
33
Those who subscribe to the plain-fact view are, of course, aware that legal
participants often seem as though they are engaged in theoretical disagreements. But,
they claim, appearances are deceiving. In these types of cases, when participants
seem to be disagreeing about what the law is, they are actually disagreeing about
what the law ought to be. According to the plain-fact view, therefore, the debate
between Burger and Powell concerned the law’s repair. Burger should be understood
as seeking to extend the reach of the Endangered Species Act to construction projects
that were substantially completed by the time the act was passed. Powell, on the other
hand, should be taken as arguing that the Act, in the light of the wasteful
consequences of such an expansion, should not be so expanded.
If judges are not actually engaging in theoretical disagreements, why do
judges act as though they are? The standard answer supplied by the plain-fact view is
that judges are trying to conceal the true “legislative” nature of their actions. In
systems of separated powers, where legislatures alone are authorized to make law
and judges are required to apply it, it is dangerous for judges to admit that they are
exercising discretion and attempting to repair the law. Courts preserve their
legitimacy when they act as though there really is law “out there” to discover rather
than admitting that the law is sometimes indeterminate and that they are filling in the
gaps.
Dworkin finds this response implausible for two reasons. First, he cannot see
why, if the plain-fact explanation is true, the general public has yet to uncover the
34
ruse. “If lawyers all agree there is no decisive law in cases like our sample cases, then
why has this view not become part of our popular political culture long ago?”55
Second, Dworkin points out that if judges were seeking to repair, not report, the law,
it would be difficult in many cases to explain why they end up deciding as they do. In
TVA, for example, Burger claimed that halting the dam’s construction was disfavored
from a policy perspective. If he wanted to repair the law, why did he come to such a
decision? By Burger’s own admission, the Court’s ruling would result in an
enormous waste of public funds for no apparent benefit.56
Dworkin infers from TVA v. Hill and cases like it that theoretical
disagreements not only take place but abound. Because the plain-fact view cannot
account for the possibility of these disputes, Dworkin concludes that it does not
capture the argumentative structure of legal practice and as a result must be rejected.
C. The Possibility of Theoretical Disagreements
How, then, are theoretical disagreements possible? Dworkin’s explanation centers on
the claim that legal interpretation is, at bottom, “constructive” interpretation.
Constructive interpretation is the process of “imposing purpose on an object or
practice in order to make it the best possible example of the form or genre to which it
55 Ibid., 37.
56 Likewise, in Riggs v. Palmer, Judge Gray argued in dissent that beneficiaries who murder testators
should be permitted to collect their bequests, even though this interpretation of the Statute of Wills
results in absurdity. If judges are supposed to be acting in these cases as legislators, as the plain-fact
view urges, then their actions are inexplicable – they routinely choose the less socially beneficial
course of action.
35
is taken to belong.”57 A purpose makes an object the best that it can be when it both
“fits” and “justifies” the object better than any rival purpose. A purpose “fits” the
object to the extent that it recommends that the object exists or that it has the
properties it has. A purpose is “justified” to the extent that it is a purpose worth
pursuing.
To determine which facts are grounds of law in a particular legal system,
Dworkin believes that the interpreter must engage in constructive interpretation. She
must first impute a point to the particular practice that presents it in its best light,
namely, one that best fits and morally justifies it. Then, she must use this point to
ascertain the grounds of law for the particular system.
By treating the determination of legal grounds as a process of constructive
interpretation, Dworkin is able to account neatly for the possibility of theoretical
interpretations in law. Disagreements about the grounds of law are predicated on
disagreements about the moral value of law and/or law’s relation to practice. Thus,
unlike the plain-fact view, this account need not treat theoretical disagreements as
incoherent or insincere: insofar as the content of the law is dependent on which
principles portray legal practice in its morally best light, genuine moral
disagreements will induce genuine legal disagreements.

36
5. THE TWO CRITIQUES COMPARED
Dworkin’s critique of legal positivism in Law’s Empire has many similarities to the
one he put forth in “The Model of Rules I.” Both characterize positivism as
committed to a Pedigree Thesis. Both claim that positivism cannot explain judicial
behavior in hard cases. And both maintain that the proper explanation for such
behavior involves understanding judges looking to morality to resolve the legal
matters at hand. Despite these commonalities, however, Dworkin’s latter critique is a
vastly different and, as we will soon see, more effective one.
The distinction between critiques becomes plain when the first is recast using
the terminology of the second. To translate between critiques, we start by noting that
a “criterion of legality” (in the language of the first critique) tests whether certain
“grounds of law” (in the language of the second critique) obtain in a particular case.
For example, the criterion “All rules passed by both houses of Congress that regulate
interstate commerce are laws of the United States” takes the facts of bicameral
passage and regulation of interstate commerce as grounds of law in the U.S. legal
system. Thus, instead of speaking of kinds of criteria of legality, we can speak simply
in terms of the kinds of grounds of law that these criteria set out.
On this translation, the first critique can be understood as purporting to show
that in hard cases judges take morally relevant facts to be grounds of law. It does this
by examining cases such as Henningsen where judges regard themselves as bound by

37
principles whose legal authority derives from their moral content. But positivism is
committed to the plain-fact view, which precludes moral grounds of law. Hence, the
first critique concludes that legal positivism cannot explain judicial behavior in hard
cases.
Whereas the first critique seeks to exploit the alleged fact that judges often
take the grounds of law to be moral in nature, the second critique tries to capitalize
on the alleged fact that judges often disagree with one another about what the
grounds of law are. The dispute in TVA, for example, was grounded in a dispute
about whether to privilege the statutory text even in the face of absurd results.
Positivism cannot explain such disagreements, the second critique concludes,
because it is committed to the plain-fact view, according to which the grounds of law
are fixed by agreement.
Thus, though both Henningsen and TVA are hard cases, they are hard for
different reasons. Henningsen is hard because, although the court agreed on the
grounds of law, figuring out whether those grounds obtain in the particular case is a
demanding question that reasonable people may disagree about. TVA is hard because
to determine the correct outcome of the case, the court had to first resolve what the
grounds of law are, and reasonable people can disagree about that question as well.
As we saw earlier, hard cases like Henningsen are not hard for the positivist
to accommodate. For example, the positivist may take the exclusivist route and claim
that, in such cases, judges are legally obligated to apply extralegal norms. Or she can
38
take the inclusive route and simply admit that the grounds of law can be moral in
nature, provided that there is a convention among judges to regard those facts as the
grounds of law. But cases like TVA cannot be explained away in either manner. For it
is common ground between exclusive and inclusive legal positivists that the grounds
of law are determined by convention. How can they account for disagreements about
the legal bindingness of certain facts whose bindingness, by hypothesis, requires the
existence of agreement on their bindingness?58
Curiously, positivists have had little to say about this problem. Indeed, it is
one of the great ironies of modern jurisprudence that in spite of the huge amount of
ink spilled on the Hart-Dworkin debate, so little attention has been paid to this
second, more powerful objection. To be sure, legal positivists have relentlessly
attacked Dworkin’s positive theory of constructive interpretation. Yet they have
made almost no effort to defend their own theory against Dworkin’s negative
58 It is important not to conflate the objection from theoretical disagreements with the argument
Dworkin calls the “semantic sting.” In Law’s Empire, Dworkin introduces the semantic sting argument
after he makes the objection from theoretical disagreements. See Ibid., 43–4. The semantic sting is
used to explain why positivists require the grounds of law to be determined by consensus. Dworkin
hypothesizes that positivists insist on consensus because they tacitly subscribe to a criterial semantics,
according to which concepts may be shared only if the criteria for the proper application of the
concepts are shared. Thus, a criterial semantics for the concept of law would require that community
members can share the same concept of law – and hence have meaningful dialogue about their law –
only if they share the same criteria for the application of the concept. Since the criteria for the
application of the concept of, say, U.S. law are just the grounds of U.S. law, a criterial semantics
demands that communities share the same grounds of law in order to share the same concept of law.
Dworkin argues that criterial semantics is defective precisely because criterial semantics is unable to
account for theoretical legal disagreements. This is the semantic sting argument. Notice that the
semantic sting argument is no objection to positivism if positivism is not committed to criterial
semantics. See, for example, Joseph Raz, “Two Views of the Nature of the Law: A Partial
Comparison,” in Hart’s Postscript; Jules Coleman and Ori Simchen, “Law,” 9 Legal Theory 9 (2003):
1.
39
arguments in Law’s Empire. They have made no attempt to show how theoretical
legal disagreements are possible.
One explanation for this neglect may be that positivists have not recognized
that these later objections differ in kind from the earlier ones. They may have thought
that their responses to the “Model of Rules I” critique are equally applicable to the
Law’s Empire critique. This, we have just seen, is a mistake. Dworkin’s later critique
seeks to show that the grounds of law cannot be determined by convention, whereas
the positivistic responses to the earlier critique presuppose that the grounds of law are
indeed fixed conventionally. There is another possibility, however. Positivists may
have recognized the differing nature of the second critique and may simply be
unmoved. For they might still cling to the repair argument: they might maintain that
theoretical disagreements about the law are impossible, that when judges appear to be
occupied by such disputes they are, for various political reasons, really engaged in
covert arguments about repairing the law, and that nothing Dworkin has said has
given them any reason to think otherwise.
To be fair to the positivist, it must be said that Dworkin’s specific responses
to the positivist argument about repair are not particularly compelling. Recall that
Dworkin objected to the repair argument by wondering why, if the positivist is
correct, the public has yet to pick up on the judicial ruse. But the explanation for such
a fact – if it is indeed a fact – is simple: the law is a professional practice and lay
persons are either ignorant of its ground rules or too intimidated by legal officials to
40
challenge them. Dworkin also argued that the repair argument makes it difficult to
explain why judges make the rulings they make. If Burger were interested in
repairing the law, Dworkin reasoned, he would not have shut down the construction
project to save the snail darter. But this objection overlooks the possibility that
Burger had bigger fish to fry. Burger might have wanted to repair not the specific
statute itself but rather the norms of statutory interpretation. His concern, in other
words, might have been with denying judges the discretion to deviate from the
statutory text when they happen to disagree with its result. Understood in this way,
Burger’s ruling in favor of the snail darter was a rational choice for legal repair.
Although Dworkin’s objections to the repair argument are not, to my mind,
convincing, I think that it would be a mistake to dismiss his entire critique so quickly.
For it is relatively simple to refashion his objections in such a way that the repair
argument no longer looks particularly attractive. One need notice only that judges are
not the only ones who engage in theoretical disagreements – legal scholars do so as
well. The law reviews, after all, are filled with articles arguing for the legal propriety
of one interpretive methodology over another. Indeed, the great disputations of legal
theory – those between originalism and dynamism, textualism and purposivism,
documentarianism and doctrinalism – have been precisely about theoretical
disagreements in the law. Judges may have a great political interest in hiding the true
nature of their activities, but scholars generally do not. No doubt, some theorists
tailor their interpretive theories to fit their politics. But if theoretical disagreements
41
were incoherent, trying to convince one’s peers in this manner would be folly, for
surely they would see right through it.
Positivists, therefore, appear to be in an awkward position. If they wish to
deny the existence of theoretical legal disagreements, they are forced to say that legal
scholars are so confused about the practice they study that they routinely engage in
incoherent argumentation. This result is unattractive but perhaps not fatal. For it
cannot be demanded that legal theories fit every lawyerly preconception. Lawyers
can certainly be wrong about the practice in which they participate. What the
positivist must show, however, is that there are compelling theoretical reasons to
either dismiss or reinterpret the self-understanding of these experts. Whether this can
be shown is a question that positivists have yet to face.59
6. ACCOUNTING FOR THEORETICAL
DISAGREEMENTS
There is one more option available to the positivist. Instead of trying to explain away
theoretical disagreements, she might nevertheless attempt to account for them within
59 There is a third possible reason why positivists have misjudged the force of Dworkin’s critique:
they may have conflated the objection from theoretical disagreements with the semantic sting
argument, as discussed in the previous note. The thought goes as follows: since positivism is not
committed to criterial semantics and since the semantic sting argument is an objection to criterial
semantics, the semantic sting argument poses no threat to positivism. This is true, of course, but given
that the semantic sting argument is not the same as the objection from theoretical disagreements, the
failure of the former is irrelevant to the success of the latter.
42
a positivistic framework. She might, in other words, show how proper interpretive
methodology might be anchored in social facts. It is to this possibility that we now
turn.
A. Looking for Social Facts
The first step in accounting for theoretical disagreements in a positivistic framework,
I believe, is to concede that the plain-fact view, or any other account that privileges
interpretive conventions as the sole source of proper methodology, ought to be
rejected. Because theoretical disagreements abound in the law, interpretive
methodology may be fixed in ways other than specific social agreement about which
methodologies are proper.60 The positivist should also agree with Dworkin that when
theoretical disagreements abound, ascertaining proper interpretive methodology
involves attributing a purpose to legal practice. One cannot understand disagreements
over interpretive methodology unless one sees them as disputes about the point of
engaging in the practice of law. Finally, the positivist should also maintain with
Dworkin that in such cases proper interpretive methodology for a particular legal
system is primarily a function of which methodology best harmonizes with the
objectives of that system.
60 It should be noted that sometimes courts settle theoretical disagreements. See, for example,
Edwards v. Canada (Attorney General) [1930] A.C. 124, where the Privy Council rejected originalism
as an appropriate method of constitutional interpretation. I thank Les Green for making this point to
me.
43
Here, however, the agreement must end. Although ascertaining interpretive
methodology involves attributing a purpose to legal practice, the positivist cannot, of
course, treat this attributive process in a Dworkinian manner, namely, as an exercise
in moral and political philosophy. The positivist, rather, must seek social facts. The
fact that some set of goals and values represents the purposes of a certain legal
system must be a fact about certain social groups that is ascertainable by empirical,
rather than moral, reasoning. Proper interpretive methodology would then be
established by determining which methodology best harmonized with these goals and
values. In this way, the positivist will have blunted Dworkin’s critique: by claiming
that interpretive methodology is a function of empirically derivable objectives, the
positivist will have grounded the law in social fact. Moreover, the positivist will have
established the social foundations of law in a manner that does not rely on specific
conventions about proper interpretive methodology, thereby accounting for the
possibility of theoretical disagreements. Theoretical disagreements would simply be a
product of disputes over which purposes are in fact the objectives of the system or
about which methodology best harmonizes with those objectives.
This proposed response, of course, is purely schematic, for it does not specify
how the political objectives are to be ascertained. The proposal does not tell us, for
example, whose objectives are relevant to determining the purposes of a legal system,
nor how these objectives must be related to the actual behavior of legal participants.
No doubt, these are questions that any adequate positivistic theory of legal
44
interpretation must address. The above proposal, however, merely sets out a strategy:
it claims that for the positivists to account for the possibility of theoretical
disagreements, they should drop their conventionality requirement, concede that
proper methodology is a function of systemic purpose, and yet maintain nevertheless
that systemic purpose is a matter of social fact.
B. Settling on an Ideology
To be sure, it is not enough for positivists to advance a theory of legal interpretation
that grounds interpretive methodology in social facts. Their account must be
plausible as well. What, then, would a plausible positivist theory of legal
interpretation look like? Although space limitations prohibit a detailed exposition of
such an account, I will attempt in the remainder of this section to sketch the outlines
of one such theory.61
The proper task of the legal interpreter, I would like to suggest, is to impute to
legal practice the political objectives that the current designers of the legal system
sought to achieve.62 The purposes that are legally relevant, in other words, are those
that explain, rather than justify, the current practice. These objectives might be
61 I explore these issues in much greater detail in Interpretation and the Economy of Trust
(forthcoming).
62 Because legal systems always contain mechanisms for revision, the designers of a system will
change as the structure of the system is intentionally revised. The designers of the present American
system include not only the framers and ratifiers of the Constitution of 1787, but the numerous agents
over the past two hundred years who have changed the complexion of the system. The framers and
ratifiers of the 14th Amendment are as much the designers of the current regime as the framers and
ratifiers of the original constitution. How the objectives of a system change as the institutional
structure is revised is a complex question that I cannot explore here.
45
laudable ones, such as promoting democratic self-rule and protecting individual
liberty, or they may be more morally suspect, such as seeking to implement the will
of God or hastening the proletariat revolution. The proper methodology for a
particular legal system would be the one that best harmonizes with the ideological
objectives of those who designed the current system, regardless of the moral
palatability of their ideology.
According to this proposal, proper interpretive methodology is grounded in
social fact because the specific purposes of a legal system are matters of social fact.
Whether a legal system ought to be understood as advancing some political goal G or
realizing some value V depends on whether those with authority to design the system
designed it to advance G or realize V. To uncover the political objectives of a legal
system, the interpreter must analyze its institutional structure and determine which
goals and values best explain why the legal system has its current shape. Thus, one
might conclude that a system that made provisions for voting, representation,
elections, and some protection for public deliberation is a system in which
democratic self-rule is prized. By contrast, an institutional structure that empowered
clerics to decide matters of principle and policy and minimized the degree to which
secular forces can affect the direction of the law would be a system in which
religious values are designed to be promoted.
It should be emphasized that the reason to privilege the objectives of legal
designers in legal interpretation is not simply motivated by the desire to answer

46
Dworkin’s objections. More importantly, deference to the ideology of designers is
necessary if designers are to do their job, which is to settle questions about which
specific objectives the group should pursue.63
To see why this is so, let us start with the idea that the fundamental function
of all legal systems is to achieve certain very general political and moral objectives.
These objectives include the maintenance of order, the prevention of undesirable and
wrongful behavior, the promotion of distributive justice, the protection of rights, the
provision of facilities for private ordering, and the fair settling of disputes. How legal
systems should go about attaining these objectives, of course, is likely to be a
complex and contentious matter. What rights do individuals have and which deserve
legal protection? Which distribution of goods is the just distribution? Against which
moral metric is behavior to be assessed? These questions are apt to provoke serious
doubts and disagreements. It is reasonable to suppose that without some mechanism
for settling on which specific goals and values the legal system ought to pursue, there
is a significant risk that the massive amount of coordinated behavior necessary for
the law to achieve its moral mission will not take place.64
63 Not every legal system has designers or has been designed. In some cases, the structure of a legal
system, or some part thereof, is the result of custom. In these situations, there may be no ideology that
underlies the system’s institutional structure and thus no way to resolve theoretical disagreements
(indeed, in these cases theoretical disagreements are not even possible). I say that there may be no
ideology because legal officials may theorize previously untheorized customary aspects of a certain
system and develop the system in the direction of this new ideology. These officials will then be
considered designers, and theoretical disagreements can be resolved by reference to their ideology.
64 Even in those rare instances where there is a very broad consensus in the community on which
specific political objectives to pursue, how conflicts between them should be adjudicated, and how
they ought to be implemented institutionally, there will still be a pressing need to have mechanisms
47
It is one of the primary functions of legal designers to resolve these very
issues. They settle questions about specific political objectives through the process of
institutional design, that is, by distributing rights and responsibilities in such a way
that the exercise of the allocated powers and the observance of the assigned duties
achieve the goals and realize the values they wish to promote. In this way, the
behavior of members of the community will be channeled in the direction of the
selected objectives. This is not to say that the law’s fundamental functions will be
achieved simply through deference to the institutional structure designed by those in
authority. Indeed, if the designers are untrustworthy and design the system poorly,
the broad moral objectives mentioned earlier are guaranteed not to be met. The point,
rather, is that if those in authority are basically trustworthy, which is what the law
always supposes, deferring to the designers’ judgments about how to attain the
fundamental aims of the system is a highly effective strategy for actually attaining
those ends.65
Once it is recognized that legal designers play this “settling” function, one
can see why their resolutions concerning particular ends and values must be
privileged when ascertaining interpretive methodology. For if members of the group
are permitted to engage in moral and political philosophy to determine the proper
that can quell dissent, should it arise. Given that in politics not everyone wins, there is always the
threat that the loser will challenge the results, and without some way of settling these sorts of disputes,
the ability of the legal system to achieve its fundamental ends will be significantly imperiled.
65 It should be clear that this argument does not entail that members of the community are always
morally obligated to defer to the system designers. For when those in authority are not trustworthy, or
otherwise not entitled to deference, there may be no reason to defer to their judgments about
fundamental aims.
48
justification for legal practice, they would effectively unsettle these matters. We
might say that accounts of legal interpretation such as Dworkin’s defeat the purpose
of having legal authorities – they allow subjects to reopen the questions that
authorities resolved by designing a legal system. After all, the judgments of designers
are just more fodder for constructive interpretation. Their judgments will receive only
the amount of deference that the Dworkinian interpreter deems to be morally
appropriate in the light of current practice. To make that judgment, the interpreter
will be forced to engage in abstract philosophical reflection and confront questions
that have baffled humanity for the past few millennia.
Once we see the necessity of deferring to authoritative settlements about
which particular objectives to pursue, the same argument counsels respect for
decisions about how specifically they ought to be pursued. For authorities don’t will
just the ends, they will the means as well. It is also their task, in other words, to
determine how to allocate rights and responsibilities based on their assessments of
the competence and character of various members of the group. If, after having
designed a particular institutional arrangement, those members were then to ask
themselves afresh “Which assignment of power to me would best justify the
practice?” they would be undoing precisely what the designers intended to do.
To preserve the ability of legal designers to design (and redesign) a legal
system, the interpreter must defer not merely to the designers’ decisions about
specific political objectives, but also to those decisions concerning roles and trust.
49
Thus, the interpreter must figure out how those with authority to design the system
divided labor and which roles they entrusted to various participants. She must also
determine which judgments or claims of trust and distrust underwrite such a division
of labor. Thus, for example, broad grants of power to certain participants, with
comparatively few attendant duties, might evidence high degrees of confidence in the
competence and character of those individuals, whereas highly diffused distribution
of power, with few opportunities for the exercise of discretion, might suggest low
degrees of trust instead.
How should an interpreter process this information about ends and means?
The interpreter might begin by drawing up a list of possible interpretive
methodologies and attempting to ascertain their basic properties. She should try to
discover, for example, whether certain methodologies require a great deal of
expertise to implement or comparatively little, and whether they are easy to abuse or
hard to manipulate. Having ascertained the basic properties of the candidate
methodologies, the interpreter should then attempt to extract certain information from
the institutional structure of the legal system in question. She ought to ascertain the
attitudes of those who designed the system regarding the competence and character
of certain participants, as well as the objectives that they are entrusted to promote.
Finally, the interpreter should apply the information culled from the first two tasks to
determine proper interpretive methodology. She must try to figure out which
interpretive methodologies best further the extracted goals in the light of the
50
extracted attitudes of trust. The relationship between interpretive method and
systemic ideology can often be quite complex, but it can also be rather simple. Here
is an example of a straightforward connection: an interpretive methodology that
requires for its effective implementation a high degree of competence or moral
character will be inappropriate for systems where high degrees of trust are
inappropriate; instead, hermeneutic procedures that are easier to apply and less
subject to abuse – perhaps ones that defer to plain meaning, instead of purpose –
would be more fitting.
As mentioned previously, a virtue of this type of proposal is that, insofar as
interpretive methodology is not determined by a specific convention about proper
interpretive methodology, it is able to account for the possibility of theoretical
disagreements. Participants in a practice can disagree over proper interpretive
methodology because they disagree about any of the steps mentioned above. They
might disagree about the demands imposed by particular methodologies, the
ideological purposes of the system, its distribution of trust and distrust, or which
methodology best harmonizes with such purposes and judgments of competence and
character.
Notice further that this theory is strongly positivistic. Because it takes a
regime’s animating ideology as its touchstone, this account may end up
recommending an interpretive methodology based on a morally questionable set of
beliefs and values. The legal system in question, for example, may exist to promote
51
racial inequality or religious intolerance; it may embody ridiculous views about
human nature and the limits of cognition. Nevertheless, the positivist interpreter takes
this ideology as given and seeks to determine which interpretive methodology best
harmonizes with it.
This account of legal interpretation is positivistic in the most important sense,
namely, it roots interpretive methodology in social facts. That a legal system has a
certain ideology is a fact about the behavior and attitudes of social groups. The
account privileges social facts, as mentioned earlier, not out of fanatical desire to
save positivism at all cost, but because the alternative would render legal systems
incoherent. Imputing to legal systems purposes, division of roles, and judgments of
trustworthiness that are morally justified undercuts the basic division of labor
between those with authority to settle such matters and those under a duty to
implement such settlements.
It is possible, then, for the positivist to maintain that the grounds of law are
determined by social facts and to account for theoretical disagreements about those
very grounds, Dworkin’s contention in Law’s Empire notwithstanding. The
commitment to the social foundations of law, I have tried to show, can be satisfied in
the absence of a specific convention about proper interpretive methodology just in
case a consensus exists about the factors that ultimately determine interpretive
methodology. The law will be grounded in social facts, that is, if the current
designers agree about the basic objectives of the system, the competence and
52
character of participants, and the proper distribution of roles.66 The fact that
interpretive methodology is determined by these factors not only renders theoretical
disagreements possible, it explains why they are so prevalent. For it is highly likely
that participants will disagree with one another about what these shared
understandings are and which methodologies are best supported by them.
To be sure, it is a consequence of this approach that, in the absence of these
shared understandings, disagreements about proper interpretive methodology will be
irresolvable. And even if shared understandings do exist, they may be quite thin and
thus will provide neither side much leverage in interpretive debates. I am not sure,
however, that these implications undermine the solution I am offering. First, although
thin shared understandings may not determine a unique methodology, they might
nevertheless rule out certain interpretive stances. There may be no right answer to
these disputes, but there are usually wrong ones. Second, and more important, a
theory of law should account for the intelligibility of theoretical disagreements, not
necessarily provide a resolution of them. An adequate theory, in other words, ought
to show that it makes sense for participants to disagree with each other about the
grounds of law. Whether a unique solution to these disputes actually exists is an
entirely different, and contingent, matter, and a jurisprudential theory should not,
indeed must not, demand one just because participants think that there is one.
66 Similarly, there must exist a shared understanding among participants in the system about who the
designers are and which institutional structures they have created.
53
7. THE FUTURE OF THE
HART-DWORKIN DEBATE
In a recent article, “Beyond the Hart-Dworkin Debate,” Brian Leiter makes the
following provocative claim:
The moment now seems opportune to step back and ask whether the Hart/Dworkin debate
deserves to play the same organizing role in the jurisprudential curriculum of the twenty-first
century that it played at the close of the twentieth. I am inclined to answer that question in the
negative, though not, to be sure, because I can envision a jurisprudential future without Hart’s
masterful work at its center. Rather, it seems to me – and, I venture, many others by now –
that on the particulars of the Hart/Dworkin debate, there has been a clear victor, so much so
that even the heuristic value of the Dworkinian criticisms of Hart may now be in doubt.67
Needless to say, Leiter thinks that Hart has been the clear winner and that, given this
resounding victory, the Hart-Dworkin debate no longer deserves the scholarly and
pedagogical pride of place that it has been accorded for the past four decades.
To some extent, I agree with Leiter. If we identify the Hart-Dworkin debate
solely by Dworkin’s criticisms in “The Model of Rules I” and the discussion
generated by them, which is how Leiter and many others understand it, then I think
that the positivists clearly have “won,” at least in the sense that they have
successfully parried Dworkin’s challenge. Narrowly construed, the Hart-Dworkin
67 Leiter, “Beyond the Hart-Dworkin Debate,” 18.

54
debate is indeed past its intellectual sell-by date. For whether positivism can account
for the fact that judges are often required to apply nonpedigreed principles in hard
cases is a question that, as lawyers say, has been asked and answered.
Yet, as I have tried to show, Dworkin’s critique of Hart and legal positivism
did not end with “The Model of Rules I.” His challenge evolved over time and, in the
process, became resistant to the existing positivistic defenses. Thus, I part company
with Leiter when he writes that “The point is not, I hasten to add, that there remain
no challenges to legal positivism, but rather that the significant issues that face legal
positivists are now different, often in kind, from the ones Dworkin made famous.” I
have argued, however, that positivism is particularly vulnerable to Dworkin’s critique
in Law’s Empire. To overlook this challenge, which most positivists have done, is to
ignore the most serious threat facing legal positivism at the beginning of the twenty-
first century.
Reports of the demise of the Hart-Dworkin debate, therefore, would be
greatly exaggerated. The particulars have changed, but the basic issue, and its
fundamental importance, remains the same today as it did forty years ago. Is the law
ultimately grounded in social facts alone, or do moral facts also determine the
existence and content of the law? Only the future will tell who has the right to claim
victory in this debate.

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PUBLIC LAW AND LEGAL THEORY WORKING PAPER SERIES

WORKING PAPER NO. 77 MARCH 2007

THE “HART-DWORKIN” DEBATE:

THE SOCIAL SCIENCE RESEARCH NETWORK ELECTRONIC PAPER COLLECTION:

A Short Guide for the Perplexed

critique of H. L. A. Hart’s theory of legal positivism, countless books and articles

a postscript. Predictably, the postscript generated a vigorous metadebate about its

Electronic copy of this paper is available at: http://ssrn.com/abstract=968657

Dworkin. I will be interested, rather, in a more preliminary matter, namely, in

about the very possibility of conceptual jurisprudence?

begin by exploring Dworkin’s characterization and critique of Hart’s positivism and

Electronic copy of this paper is available at: http://ssrn.com/abstract=968657

Capturing the essence of a philosophical debate, however, can be a tricky

whether X is true, whereas the other supposes that it is whether Y is true.

sense of “rule”), nor is he committed to such a position.5

Second, philosophical debates are hard to characterize because, unlike formal

ultimately connected to everything else, and hence philosophical controversies tend

Dworkin debate concerns such disparate issues as the existence of judicial

Electronic copy of this paper is available at: http://ssrn.com/abstract=968657

discretion,6 the role of policy in adjudication,7 the ontological foundations of rules,8

the possibility of descriptive jurisprudence,9 the function of law,10 the objectivity of

value,11 the vagueness of concepts,12 and the nature of legal inference.13

to rational pressures coming from without and within.

Despite these complications, I think that there is an important unity to the

Hart-Dworkin debate that can be described in a relatively straightforward manner. I

Because the Hart-Dworkin debate is, as mentioned earlier, a dynamic entity, I

very questions that the law aims to resolve.

1. THE OPENING BLAST

and most legal positivists are committed.

legal rule that requires him to do or to forbear from doing something.”14

Because this description of Hart’s theory is somewhat idiosyncratic, we should dwell

Pedigree Thesis, is that although Dworkin portrays it as a singular commitment, it is

14 Ronald Dworkin, “The Model of Rules I,” 17.

properties or require for their implementation the exercise of moral reasoning. No

master rule, therefore, may condition legality on morality.

Hart nowhere imposes a pedigree requirement on the rule of recognition; indeed, in

Whereas the Pedigree Thesis is at least recognizable as a colorable

norms that he calls “principles.”

In Dworkin’s terminology, rules are “all or nothing” standards.17 When a

By contrast, principles do not dispose of the cases to which they apply.18

Moreover, in contrast to rules, principles have “weight.” When valid principles

supported by the principles that have the greatest aggregate weight.

17 Ronald Dworkin, “The Model of Rules I,” 24.

B. Against Judicial Discretion

Dworkin begins his critique by arguing that the Discretion Thesis is

bound by law even though no rules are clearly applicable. In Henningsen v.

“freedom of contract is not such an immutable doctrine as to admit of no

the automobile manufacturer is under a special obligation in connection with the

According to Dworkin, Henningsen was not an aberration. “Once we identify

legal principles as separate sorts of standards, different from legal rules,

principles to legal conclusions. At least sometimes as well, they have discretion in

21 32 N.J. 388, 161 A.2d 86.

C. Content, Not Pedigree

legality of principles depends, at least sometimes, simply on their content.

Insofar as positivism requires legality to be purely a function of pedigree, it cannot

to place special burdens upon oligopolies that manufacture potentially dangerous

Dworkin does not, of course, claim that pedigree is legally irrelevant. He

support is normally crucial to their legality. “True, if we were challenged to back up

would test a principle based on its institutional support.

interacting standards (themselves principles rather than rule) about institutional