Legal Philosophy Essay - In Order to Understand a Philosopher We Have to Understand What Scares Them: What are Dworkin and Hart Afraid Of?

Legal Philosophy Essay - In Order to Understand a Philosopher We Have to Understand What Scares Them: What are Dworkin and Hart Afraid Of?

To understand the arguments of a philosopher, this paper will contend that it is important to understand what Dworkins and Hart are afraid of, but additionally how these fears shape their normative views and hence approach to law. The complex relationship between fears, normativity and philosophical argument are particularly evident when considering the area of judicial discretion. For Hart, he is fearful of the potential coercive nature of law however for Dworkin, this is based upon a fear of poor adjudication. Whilst Dworkin’s generally views judicial discretion as undesireable even with the morality law synthesis, Hart provides a more complex and nuanced account of judicial discretion. Dworkin’s fears of improper adjudication do not always fit within the broader teleology which underlies his arguments that law gradually improves over time. Hart’s fear of oppressive law however is dealt with in the form of rules of recognition and adjudication and provide a richer account of judicial discretion.

Hart and The fear of Coercive law
Hart’s fear of the potential of law to be coercive is an apparent theme in his writings and account of positivist philosophy. Informed by this particular fear, his analytical focus is upon formulating a methodology to determine legal norms and the specific conditions which are needed for its operation (GLF: 1973 p 1381). This methodology is based upon particular assumptions about the operation of law. Firstly, he posits the often misunderstood axiom of the separation of law and morality. Secondly, in order for the legal system to operate, it can be considered as comprising two separate categories of rules. Firstly, there are primary rules which effectively impose duties upon citizens (Concept of Law: Hart: P

2). These rules are insufficient on their own as a legal system requires more than just compliance ( Hart’s rule of law: Lacey: p129). In addition, there are also secondary rules which create and change power, duties and obligations ( The concept of law: p3). Secondary rules comprise of three tiers, namely ; the rules of recognition, change and adjudication. It is the secondary rules which will be the main concern of this particular paper and how, through Hart’s fear of coercive law, he provides a more comprehensive account of judicial discretion and how it relates to the broad schema of positivism.

Dworkin Fear of Poor Adjudication
Dworkin’s analytical fear of poor adjudication is in part driven by his normative view of what the law should be as well as a response from Hart’s conception of judicial discretion. Firstly, this paper will consider Dworkin’s criticisms of the inherent problems of Hart’s analysis of judicial discretion. Secondly it will critically examine Dworkin’s approach to judicial discretion as informed by the “Rights Thesis”.

Criticisms of Hart
According to Dworkins, Hart’s ontology which solely focuses upon the body of rules fails to understand legal argument and legal reason. As a consequence, Hart fails to see how judges are bound by principles (Judicial Discretion and the Concept of Law). Dworkin’s is highly critical of Hart’s conception of judicial discretion which operates between the “core of certainty and penumbra of doubt” (Hart The concept of law p 119). This is particularly problematic to Dworkin as it means that the judge is not held to any particular legal standards. Dworkin views this as constituting “strong discretion” due to the judge is exercising beyond the law (Dworkin’s Rights Thesis p 1169). Driven by his concern of poor quality adjudication, he asserts that judicial decisions in hard cases should be directed by principle rather than solely by discretion. Principles, according to Dworkin, also comprise of part of the law as much as “black letter laws” and this avoids the limitations of positivist jurisprudence (Rights thesis p 1170). In light of these criticisms of Hart’s approach, it is helpful to examine Dworkin’s analytical response to these apparent limitations.

Dworkin’s Rights Thesis
Dworkin’s fear of poor adjudication is based upon his concern of the judiciary operating as a deputy legislature in the area of “Hard Law”. Poor adjudication is problematic to law and society as judges are not elected officials with the capacity to manage conflicting interests. Dworkin’s argues that the normative role of the courts should be to protect or ensure an individual or collective rights (Hard Cases ; Dworkin p 1059). This fear of poor adjudication and concern for individual liberties does explain the Rights Thesis. Essentially, the Rights Thesis is based upon two tiers, namely policy and principle. According to Dworkin, policy seeks to justify a political decision which advances or strives to protect a collective goal. The policy branch of the Rights Thesis is assumed by Government, who have the legitimacy of representing the majority in the creation of laws. The second tier encompasses the Principle element of the Rights Thesis. Principle is distinct from policy as is seeks to prevent or secure an individual or collective right.

The implications of his analysis is the judicial discretion is exercised under an encompassing principle that judicial discretion must be in the public interest rather than based upon private prejudice. Dworkin’s fear of poor adjudication is alleviated somewhat by the expectation that judges justify their decision and argue their reasoning in the public arena (Judicial discretion ; Dworkin p 635-656). However, Dworkin recognises that discretion becomes increasingly problematic in very hard cases. The judge therefore may increasingly rely up their own subjective view which may be difficult to justify in the public arena. (ibid p 637)

Hart v Dworkin

The Role of Principles Judicial Discretion
Dworkin’s places considerable importance upon the role of principles in determining judicial discretion. His criticism of Dworkin’s is based upon the assumption that principles are not included as part of the rules of recognition framework. However, this argument is limited as principles do comprise of Hart’s rules of recognition approach. Therefore, Dworkin’s critique of Hart’s theory is problematic. Hart does not postulate that discretion occurs in a complete legal vacuum, rather

The main crux of Dworkin’s argument is that law and morality are not two separate entities, rather they are intricately related..This places law in a teleological epistemology, insofar as law is continuously improving towards “better” law as a result of its relationship to political philosophy and morality. Hard law, therefore is important in this schema. Hard law allows the exploration between the “rules” of the law with other supposedly external influences, such as principles and morality. Judicial discretion is the key mechanism by which this complex interrelation between

The consideration of both Hart and Dworkin’s fears injects additional analytical value when considering their respective arguments. For Dworkin, his fear of poor adjudication by an unelected body is apparent in the “Rights Thesis” and concern of strong discretion. The Rights Thesis seeks to resolve these concerns by stating that judges do not simply draw on sources beyond the law, rather they rely upon principles which are akin to law as part of their decision making. This is particularly interesting as it is a remarkably similar approach to the one adopted by Hart. Whilst Hart’s fears can be located in his concern of coercive law this has lead him to develop a most sophisticated ontology to understand judication discretion. Hart’s approach is misunderstood by Dworkins, who views the positivist approach to judicial discretion as drawing upon a vacuum. Rather, upon closer analysis, principles are also subsumed in the “Rules of Recognition”. However, whilst Hart has a more sophisticated approach to judicial discretion, overall his theory appears static. Dworkin’s however recognises that law does change and evolve over time, his approach is underpinned by a teleology which argues that law improves over time as a result of its relationship to political philosophy and morality. Whilst Dworkin’s overall approach is considerably more subjective than Hart’s rule centrism, his fears of inproper adjudication provides a positive representation of what the law is capable of achieving over time.