Kvitka Becker Jurisprudence Essay 110065716

“What are the major strengths and weakness of Dworkin’s theory of law as compared to a
positivist or natural law perspective? Discuss

I. Introduction
Ronald Dworkin is an influential modern theorist who has developed a significantly different
theory of law which has challenged the positivist theories. There are several strengths and
weaknesses in Dworkin’s theory, especially when compared to a positivist’s perspective.
Dworkin’s theory is an attempt to bridge the inadequacies and anomalies present in the
positivist approach as espoused by theorists like Herbert Hart. The paper will present an
overview of Dworkin’s theory followed by a summary of the main elements of Hart. In its
second part, the paper will discuss the differences between the main propositions of
Dworkin and Hart with a particular focus on Dworkin’s constructive interpretation and his
challenge of Hart’s views on judicial discretion. By way of conclusion, the paper will argue
that Dworkin’s attempt to bridge the gap of judicial discretion that Hart misses is a wise and
intelligent way of developing a legal theory.

II. Overview of Dworkin's Theory

Dworkin has become an influential legal theorist of this generation, and he has developed a,
“sophisticated alternative to legal positivism.”1 Dworkin’s theory is an “interpretive theory
of law,”2 primarily asking the quintessential question of whether there is truth in
interpretation and judgment.3 Essentially humans understand that disagreement is inherent
in many aspects of life, especially when looking at provisions within the law. It seems that
disagreements in interpretation are endless and the fact that a judge cannot say anything
other than, "he sees it this way, or he sees it differently," does not sit well within legal
argument according to Dworkin. According to Dworkin, the first principle of his theory
suggests that saying that there is no truth at all is skeptic and is just another judgment or
position.4 The most that one can say is that there is an inherent disagreement because
through saying that there is no truth, this develops another truth, resulting in a convoluted
and circular argument. Dworkin’s answer to this issue is that humans have a personal

1
Brian Bix, Jurisprudence: Theory and Context (Sweet and Maxwell, 5th ed, 2009) 91.
2
Ibid.
3
Ronald Dworkin, ‘Is there truth in Interpretation? Law, Literature and History (Speech delivered at the lecture
on Jurisprudence, Washingston D.C, 2009) <http://www.youtube.com/watch?v=742JyiqLhuk>.
4
Ibid.
Kvitka Becker Jurisprudence Essay 110065716

responsibility to interpret; he suggests that judges are simply interpreting against a

backdrop of everyone who has interpreted before. “Dworkins argument does not refute
legislative intent but instead suggests there is reason to think that the legislature is capable
of intentional action.”5 He uses the metaphor of an iceberg to compliment his theoretical
answer. In other words, he suggests that the judgment is merely the tip of an iceberg and
the build up to the tip is a concoction of other interpretations, and this build up is just as
important as the climactic tip. As Dworkin’s interpretive theory suggests, this, in fact, is how
truth arises; the shared responsibility of interpretation over time is what gives the judgment
truth. This theory contradicts the opinions of a positivist because Dworkin concentrates
more on judicial action and interpretation as compared to the positivists.

III. Positivism
Positivism revolves around the idea that legal systems are posited, created by people rather
than having a natural or metaphysical existence. It is based on the idea that a, “descriptive
or at least morally neutral theory of law is both possible and valuable.”6 The central
question of legal positivism is ‘what is law,’ not what the law should be, “the existence of
law is one thing; its merit or demerit is another.”7 Hart is known as one of the prominent
theorists in positivism, and is known for moving positivism forward from the initial ideas
developed by Austin. Hart criticized Austin’s theory in suggesting that it did not look at the
internal point of view; it did not question the difference between being obliged and having
an obligation. On this point, Hart suggested that law is connected to having an obligation to
act as the law tells us to.

a). Hart's legal theory

Central to Harts approach is the internal aspect of rules and laws in which he rejects
sovereignty as itself being a necessary feature of the legal system. The theory which Hart
developed is grounded on his concept of rules, and how they differ from habits. 8 In this
way, he consequently divides his theory into two groups, primary and secondary rules which
are joined and made coherent by a superior rule. Hart’s overriding superior rule, is the rule

5
Richard Ekins, ‘Legislative Intent in Law’s Empire’ (2011) 24 Ratio Juris 435.
6
Brian Bix, Jurisprudence: Theory and Context (Sweet and Maxwell, 5th ed, 2009) 33.
7
John Austin, The Province of Jurisprudence Determined (W.E Rumble ed., Cambridge University Press,
Cambridge 1995) 157.
8
Brian Bix, Jurisprudence: Theory and Context (Sweet and Maxwell, 5th ed, 2009) 38.
Kvitka Becker Jurisprudence Essay 110065716

of recognition which he develops as the basic source of authority in any legal system. 9 Hart
most importantly argued that there are two necessary conditions for the existence of a legal
system: “That the valid rules of the system must be generally obeyed, and that the criteria
set forth in the systems rule of recognition must be effectively accepted as common public
standards of official behavior by its officials.”10

IV) The differences between Hart’s and Dworkin’s theory

The essential issue of disparity is the question of what makes the rule of recognition valid.
Hart suggests that the rule of recognition is assumed by the officials of the legal system and
it is at this point in which Dworkin finds his first point of difference with legal positivists.
Where Dworkin argues for the, “existence of legal principles,”11 Hart argues that:
“there will inevitably arise cases that do not fall clearly under a rule, but concede a rule of recognition
could deny judge’s discretion to make law in such cases by requiring judges to disclaim jurisdiction or
to refer to points not regulated by the existing law to the legislature to decide.”12

Based on Dworkin’s views, there appears to be a certain weakness that through allowing
judges to decide cases by acting as legislature, there are inherent faults in parting judges
with the discretion to override or create an act of legislation. For Dworkin,
“propositions of law are true if the figure in or follow from the principles of justice,
fairness and procedural due process that provide the best constructive
interpretation of the community’s legal practice.”13
Through this, Dworkin finds a weakness in Hart’s theory which is umbrage with this idea of
discretion as it contradicts the basic tenets of democratically elected parliaments creating
laws. Contrastingly, Dworkin attempts to, “term law as integrity,”14

V) Comparison of both theories

Although Hart suggests that the rule of recognition relies upon the attitude of the systems
officials, and thus begging the question of who or what makes the officials official, Dworkin
believes that this positivist approach gives judges too much discretion in their judgment,
allowing them to be the legislature and giving them too much power. An example of this is

9
Hart, The Concept of Law (Oxford University Press, 2nd ed, 1994) 82-86.
10
Brian Bix, Jurisprudence: Theory and Context (Sweet and Marshall, 5th ed, 2009) BB pg 40
11
Ibid, 92.
12
H.L.A Hart, The Concept of Law (Oxford University Press, 2nd ed, 1994) 272.
13
Ronald Dworkin, Law’s Empire (Harvard University Press, 1985).
14
Richard Ekins, ‘Legislative Intent in Law’s Empire’ (2011) 24 Ratio Juris 435.
Kvitka Becker Jurisprudence Essay 110065716

the hard case of Donoghue v Stevenson15 in which there was no prior ruling. The positivist
approach is problematic as Dworkin illuminates. Hart proposed that being a judge involves
making law, consequently giving judges too much free will to reign over the case. A rule
governs an outcome, if you do not have a rule, as in Donoghue v Stevenson,16 there is too
much discretion imparted onto the judges. The weakness of this approach according to
Dworkin is that this allows a judge to become a legislature. One may conclude that in light of
the positivist approach, there is a contradiction with the democratic society in which we
live, because judges are not elected, rather they are merely appointed. Dworkin came to
assume that “moral facts”17 are what should be relied upon when a hard case arises. The
moral facts which Dworkin discusses are derived from political theory.18 Dworkin uses the
concept of the ‘right answer’ due to the moral facts; positivist critics question the term
‘right.’ In counter argument to such critique, Dworkin simply suggests that, “there are
almost always right answers to the moral questions confronting society.”19 Consequently,
Dworkin further develops the idea that positivists should actually be concerned with their
theory because given there is so much discretion; it is in contradiction with the
quintessential theory that the law is laid down. Ostensibly, due to this discretion attributed
to the judges, Dworkin believes that there should be another theory which prevents this
anomaly. Therefore, Dworkin puts forward the idea of interpretation. He suggests that every
case has a right answer which needs to be interpreted, removing the need for discretionary
power. This goes against positivism by establishing the fact that the judge cannot be the
legislature creating the law.

It is interesting to compare the two theories through looking at the case of McLoughlin v
O’Brian,20 which was a case regarding murder with an issue which had not yet become
precedential in court. Positivists believe that because there was no law in place to
adequately deal with this case, judges could create a new law and that it is inherently
retrospective. Dworkin disagrees with these ideas through suggesting that the judge cannot
give a personal position, one that he thinks that the majority will want, “In Dworkin’s vision

15
[1932] AC 562.
16
Ibid.
17
Christie George C, ‘Ronald Dworkin The Herculean Judge’ (2008) 3 Thompson/West 1013.
18
Ibid.
19
Ibid.
20
[1983] 1 AC 410.
Kvitka Becker Jurisprudence Essay 110065716

of law as integrity a judge must not think of himself as giving voice to his own moral or
political convictions.”21 Further, the fact that the judge looks back on other decisions before
having to interpret and develop on his judgment is constrained because they simply need to
construct law on previous law and merely make it fit. Hence, Dworkin concludes that there
is no law beyond the law and that law and morals are inextricably interwoven. He suggests
that judges look at principles that emanate from the cases, and the general principles in this
case rely on morality and the sense that you should not benefit from your own wrong.
These are not rules Dworkin concludes, these are principles. Based on Dwokin’s views, he
says that the judge’s role is not to consider policy; a judge should weigh principles about
individual’s rights. Therefore, judges should weigh principles and then they make the
judgment justifying why they chose one principle over another. Dworkin highlights that law
as interpretation results in no gap in law; rather it is an ongoing narrative of weighing
principles. Dworkin aims to create a community under the law, in the sense that everyone
should abide by the law and come to court as equals battling out principles which have been
historically embedded in previous case law.

VI) The distinction between rules and principles

Further, it is necessary to discuss the distinction between rules and principles, a concept
which varies between both theories of law. One of Dworkin’s principle ideas is the
importance of principles. Dworkin ascertains that it is the task of the judge to actually, “find
a coherent set of principles which will justify their decision.”22 The legal question and
analysis results in a moral and principled outcome, this is the bench mark which Dworkin
develops through his theory, the guiding principles are selected, “in the way that fairness
requires.”23 This is a complete difference between Harts theory which aims to separate law
and morals,

“it was the task of the judge to resolve this uncertainty as best he could, given the legal sources
available to him…according to Hart, this exercise of some degree of judicial discretion was
inevitable.”24

21
Ronald Dworkin, Laws Empire (Harvard University Press, 1985) 144.
22
Christie George C, ‘Ronald Dworkin The Herculean Judge’ (2008) 3 Thompson/West 1014.
23
Ibid.
24
Ibid, 1013.
Kvitka Becker Jurisprudence Essay 110065716

Through this, he focuses on the importance of rules rather than principles, and essential to
Hart’s approach of legal theory is the “internal aspect of rules of law.”25 Therefore, based on
Hart’s approach, Dworkin has clearly set out the weaknesses from such theories as has been
discussed above.

VII) Conclusion

A conclusion can be drawn that Dworkin’s attempt in bridging the gaps which Hart’s theory
leaves ambiguous, is commendable. Although there are several strengths and weaknesses
which both theories of law possess, Dworkin’s ability to scope so deeply into the positivists
way of legal theory and discover the weaknesses which it possesses is very clever and
intelligent. Therefore, as commentators note, Dworkin is, “probably the most influential…
legal theorist of this generation…(and) has developed a sophisticated alternative to legal
positivism.”26

25
Brian Bix, Jurisprudence: Theory and Context (Sweet and Maxwell, 5th ed, 2009) 64.
26
Ibid, 91.