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DWORKIN’S CRITICISM OF HART

Ronald Dworkin was a major figure in the world of legal philosophy. As an anti-positivist,
Dworkin rejected the separation between law and morality. In fact, Dworkin though that legal
questions could only be properly answered by connecting them with the more abstract
considerations found in moral and political philosophy.
Dworkin’s first sustained critique of Hart’s positivism was his 1967 article “The Model of
Rules.” In that piece, Dworkin articulates three thesis he thinks captures the essence of
positivism, including that of Hart:
(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.”
(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.”
The first thesis has been dubbed the “pedigree thesis.” As Scott Shapiro has commented, the
thesis states a composite claim. First is the claim that in any legal system, there is a master rule
that distinguishes law from non-law. The second claim is that this master rule sets out criteria of
legality that refer only to social facts. Importantly, the master rule may not articulate criteria of
legality that depend on the moral worth of a norm: the master rule may never require legality to
be conditional on morality.
Points of criticism:
1. Dworkin’s central claim of the pedigree thesis is that a test of pedigree is the central
feature of the Rule of Recognition. But Hart nowhere imposes such a requirement. In
fact, he states that the Rule of Recognition may make explicit reference to moral
considerations.
2. The second thesis is the Discretion thesis. Law, for Hart, is a phenomenon composed of
primary and secondary rules. Dworkin argued that Hart was simply incorrect about legal
norms because he famously failed to take account of legal principles. Dworkin argued
that rules apply in an “all or nothing fashion” whereas principles have a dimension of
weight or importance.
3. The third thesis is a corollary of the second. If legal obligations can only be generated by
legal rules then, in the absence of an extant legal rule, no obligation can be found.

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