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Jurisprudence Hart vs Dworkin
Jurisprudence (University of Oxford)
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Compare and contrast Hart and Dworkin’s respective views on how judges
should decide difficult cases before them. Which view do you find most
persuasive and why?
In his article “The Model of Rules 1”1 Dworkin first attacked the positivist legal theory
advocated by Hart in “The Concept of Law.” In chapter VII of this book Hard develops a
theory on how judges decide hard cases. Dworkin claims that Hart’s view is wrong and
asserts that the Hartian model cannot account for what he called “legal principles.”
Firstly, I will outline and compare Hart’s Open texture model and Dworkin’s “rules and
principles” model respectively as found in their early works. I will then show that
Dworkin’s later, more refined criticism poses difficulties to Hart’s view of judicial
discretion that Hart fails to adequately discharge. In conclusion therefore Dworkin’s
assessment of judicial behaviour in hard cases is more convincing.
In “The Concept of Law” Hart develops the theory of what he calls “open texture” of legal
rules2 What he means by that is that legal rules can not, and indeed should not,
authoritatively determine the outcome in every possible case in advance. The language
of legislation, an indeed precedents, will only be easily applicable to plain cases. The
indeterminacies in the law, argues Hart, are desirable because human beings are fallible
and cannot predict any possible future circumstances and can therefore not ab initio
decide whether or not such a case should be included in the rule. “The rigidity of our
classification will thus war with our aims in having or maintaining the rule” 3
As a result, it is better when the law leaves room for future determination of cases. In
hard cases a judge is faced with the question “whether the present case resembles the
plain cases ‘sufficiently’ in ‘relevant’ respects.”4 The judge in such a case has discretion,
which is “in effect a choice”5 whether to add the new case to those falling under the rule.
He should exercise this discretion in deciding whether the facts of the case are
sufficiently close to prior cases decided under the rule and having in mind the initial aim
of the legislation or precedent. In some cases “much must be left to be developed by
courts…striking a balance, in light of the circumstances, between competing interests.” 6
Hart uses the example of a rule prohibiting the use of vehicles in the park and the
decision whether toy cars should fall under the rule. In this case a judge would have to
weight the initial aim of the rule (peace in the work) with the competing interest of the
child to be able to play.
In general Hart concluded the law is largely settled but “at the margin of rules…the
courts perform a rule-producing function which administrative bodies perform centrally” 7
1
Reprinted in Taking Rights Seriously (1977)
2
The Concept of Law, p.128
3
Ibid. p.130
4
Ibid. p.127
5
Ibid. p.127
6
Ibid. p.135
7
Ibid. p.135
Downloaded by olinder seth ()
Jurisprudence Hart vs Dworkin
Jurisprudence (University of Oxford)
Scan to open on Studocu
Studocu is not sponsored or endorsed by any college or university
Downloaded by olinder seth ()
, lOMoARcPSD|59658805
Compare and contrast Hart and Dworkin’s respective views on how judges
should decide difficult cases before them. Which view do you find most
persuasive and why?
In his article “The Model of Rules 1”1 Dworkin first attacked the positivist legal theory
advocated by Hart in “The Concept of Law.” In chapter VII of this book Hard develops a
theory on how judges decide hard cases. Dworkin claims that Hart’s view is wrong and
asserts that the Hartian model cannot account for what he called “legal principles.”
Firstly, I will outline and compare Hart’s Open texture model and Dworkin’s “rules and
principles” model respectively as found in their early works. I will then show that
Dworkin’s later, more refined criticism poses difficulties to Hart’s view of judicial
discretion that Hart fails to adequately discharge. In conclusion therefore Dworkin’s
assessment of judicial behaviour in hard cases is more convincing.
In “The Concept of Law” Hart develops the theory of what he calls “open texture” of legal
rules2 What he means by that is that legal rules can not, and indeed should not,
authoritatively determine the outcome in every possible case in advance. The language
of legislation, an indeed precedents, will only be easily applicable to plain cases. The
indeterminacies in the law, argues Hart, are desirable because human beings are fallible
and cannot predict any possible future circumstances and can therefore not ab initio
decide whether or not such a case should be included in the rule. “The rigidity of our
classification will thus war with our aims in having or maintaining the rule” 3
As a result, it is better when the law leaves room for future determination of cases. In
hard cases a judge is faced with the question “whether the present case resembles the
plain cases ‘sufficiently’ in ‘relevant’ respects.”4 The judge in such a case has discretion,
which is “in effect a choice”5 whether to add the new case to those falling under the rule.
He should exercise this discretion in deciding whether the facts of the case are
sufficiently close to prior cases decided under the rule and having in mind the initial aim
of the legislation or precedent. In some cases “much must be left to be developed by
courts…striking a balance, in light of the circumstances, between competing interests.” 6
Hart uses the example of a rule prohibiting the use of vehicles in the park and the
decision whether toy cars should fall under the rule. In this case a judge would have to
weight the initial aim of the rule (peace in the work) with the competing interest of the
child to be able to play.
In general Hart concluded the law is largely settled but “at the margin of rules…the
courts perform a rule-producing function which administrative bodies perform centrally” 7
1
Reprinted in Taking Rights Seriously (1977)
2
The Concept of Law, p.128
3
Ibid. p.130
4
Ibid. p.127
5
Ibid. p.127
6
Ibid. p.135
7
Ibid. p.135
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