Legal Positivism: Dworkin’s challenge towards Hart’s account of law

Dworkin criticizes Hart’s theory primarily on two grounds, namely the Rule of Recognition and Judicial discretion. 

H.L.A. Hart tries providing a middle course between Formalism and Rule-Scepticism. He called Mechanical Jurisprudence a “noble dream”, where the judges interpret the law on the basis of the pre-existing rules and without any societal consideration. This Formalism is opposed by Hart as it leaves zero room for interpretation by the judges. On the other hand, he is also against the “nightmare” or Realist Jurisprudence, where judges have complete discretion to adjudicate cases, without any rules being applied on them. Hart’s middle course introduces the “open-texture” of law.

Here, law is neither considered as a completely closed domain nor is it seen as an open field with complete discretionary powers to the judges. Therefore, he tries striking a balance by providing some area of conduct to the judges, while also adhering to certain pre-determined rules. Hart believes that it is impossible to create rules or law which are so exhaustive that no interpretation of the same is necessary while applying it in different scenarios. In consonance to this, Hart introduces the concept of the Core and the Penumbra, wherein the penumbra of the rule is around the core. The core primarily consists of rules which are mechanically applied, while the penumbra is where the judges do a purposive interpretation of the law at their discretion. This is solely because 

Dworkin believes that these ‘core’ rules should be substantiated with his theory of principles. Further, he believes that the penumbra being such a vast grey area leads to the application of extreme realism, with no set standards which the judges need to be mindful off while dealing with the case.

Dworkin states that the rule of recognition or the concept of rules in Hart’s theory fails to address the complexity of law. Under Hart’s theory, the Rule of Recognition is seen as a touchstone which validates the other rules. It is a “matter of fact” which must be obeyed irrespective. However, Dworkin introduces the concept of “principles”. He argues that Hart’s rules are nothing but a standard for human conduct or behavior. According to Dworkin, these rules would cease to exist once they are overturned. On the contrary, his concept of principles would continue to exist since they are an underlying value of the legal system which guides the rules. Therefore, he states that Hart’s theory lacks this concept and is more simplistic than it should be. 

Furthermore, Dworkin criticizes this theory of the penumbra and states that this could lead to injustice. I agree that this discretion to the judges needs to be backed by his principles in order to guide the judges while addressing cases. Complete arbitrariness could lead to a mayhem. Therefore, certain laid principles and standards could bring in some uniformity in the judiciary and ensure accountability and democracy. 

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.


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