ABSTRACT
In a posthumously published Postscript to The Concept of Law, H.L.A. Hart considers a number of the objections to his rule-based theory of legal positivism, particularly those advanced by Ronald Dworkin. We concentrate just on three, which have formed the core of our readings from Hart and Dworkin. First, Hart defends his descriptive approach to legal theory against Dworkin’s claim that legal theory must be interpretive and so evaluative. Second, Hart defends his commitment to the separation thesis. In doing so, Hart distinguishes between “soft positivism” and “hard positivism” (called by others inclusive and exclusive positivism). He characterizes soft positivists, including himself, as insisting that there is no necessary conceptual connection between the content of law and the content of morality, but as recognizing that some legal systems may incorporate moral or political values and principles into their rule of recognition through a written constitution. This, he thinks, is the best description of the U.S. system, given that it includes basic moral principles within its Bill of Rights and other constitutional amendments. But it is only because, as a matter of social fact, the courts and other officials within the legal system accept the Constitution as their rule of recognition that such principles are incorporated into the law, and other legal systems may not similarly incorporate moral principles into their law. Hart argues, furthermore, that Dworkin’s distinction between legal rules and principles does nothing to undermine the separation thesis. Indeed, Hart rejects the sharp distinction that Dworkin draws between rules and principles, and he denies that positivists must abandon their core doctrines if they want to recognize that principles are also part of the law. Finally, Hart also defends his theory of judicial reasoning in hard cases and insists that Dworkin’s reasons for thinking that judges never exercise discretion and so make law are inadequate to support his position.
