Scott Shapiro (University of Michigan Law) has posted The Hart-Dworkin Debate: A Short Guide to the Perplexed on SSRN. Here is the abstract:
For the past four decades, Anglo-American legal philosophy has been preoccupied – some might say obsessed – with something called the “Hart-Dworkin” debate. Since the appearance in 1967 of “The Model of Rules I,” Ronald Dworkin's seminal critique of H.L.A. Hart's theory of legal positivism, countless books and articles have been written either defending Hart against Dworkin's objections or defending Dworkin against Hart's defenders. My purpose in this essay is not to declare an ultimate victor; rather it is to identify precisely the core issue around which the debate is organized. Is the Hart-Dworkin debate, for example, about whether the law contains principles, as well as rules? Or does it concern whether judges have discretion in hard cases? Is it about the proper way to interpret legal texts in the American legal system? Or is it about the very possibility of conceptual jurisprudence?
Although trying to capture the essence of a philosophical debate can be tricky, I think that there is an important unity to the Hart-Dworkin debate that can be described in a relatively straightforward manner. I suggest that the debate is organized around one of the most profound issues in the philosophy of law, namely, the relation between legality and morality. Dworkin's basic strategy throughout the course of the debate has been to argue that, in one form or another, legality is ultimately determined not by social facts alone, but by moral facts as well. This contention directly challenges, and threatens to undermine, the positivist picture about the nature of law, in which legality is never determined by morality, but solely by social practice. As one might expect, the response by Hart and his followers has been to argue that this dependence of legality on morality is either merely apparent or does not, in fact, undermine the social foundations of law.
The Hart-Dworkin debate, I also try to show, is not a monolithic entity. In the second half of the paper, I describe how Dworkin modified his critique to circumvent the responses of Hart's followers, thereby inaugurating a new phase in the debate. Virtually no attention, however, has been paid to this latter challenge, which is especially surprising given that none of the previous positivistic defenses are helpful against it. I then sketch out a possible response positivists might offer to this extremely powerful objection.
And a bit more from the paper:
Dworkin sensed the impasse as well, for his critique changed dramatically after “The Model of Rules I.” As we will see, the new objection, first broached in “The Model of Rules II” but fully developed only in Law’s Empire, attempts to show that legal positivists are unable to account for a certain type of disagreements that legal participants frequently have, namely, those that concern the proper method for interpreting the law. The only plausible explanation for how such disagreements are possible, Dworkin claimed, is that they are moral disputes. Contrary to legal positivists, therefore, Dworkin argued that the law does not rest on social facts alone but is ultimately grounded in considerations of political morality as well as institutional legitimacy.
And from later in the paper:
Given the distinction between propositions and grounds of law, Dworkin argues that two different types of legal disagreements are possible.49 The first type involves disagreements about whether the grounds of law have in fact obtained. Parties could dispute, for example, whether Congress passed a certain law by the requisite majorities or whether the president vetoed the bill. Dworkin calls these “empirical disagreements.”
The second type of disagreement does not relate to whether the grounds of law have obtained; rather, it involves conflicting claims about what the grounds of law are. For example, one party to a dispute might argue that a statute is valid because Congress has the authority to enact a certain kind of legislation and has so acted. The second party might concede that the formal conditions for enactment have been met but nevertheless claim that Congress lacks the authority to so legislate. These parties are not embroiled in an empirical disagreement inasmuch as they agree about the historical record. According to Dworkin, they are engaged in a “theoretical” disagreement about the law.
How, then, are theoretical disagreements possible? Dworkin’s explanation centers on the claim that legal interpretation is, at bottom, “constructive” interpretation. Constructive interpretation is the process of “imposing purpose on an object or practice in order to make it the best possible example of the form or genre to which it is taken to belong.”57 A purpose makes an object the best that it can be when it both “fits” and “justifies” the object better than any rival purpose. A purpose “fits” the object to the extent that it recommends that the object exists or that it has the properties it has. A purpose is “justified” to the extent that it is a purpose worth pursuing.
To determine which facts are grounds of law in a particular legal system, Dworkin believes that the interpreter must engage in constructive interpretation. She must first impute a point to the particular practice that presents it in its best light, namely, one that best fits and morally justifies it. Then, she must use this point to ascertain the grounds of law for the particular system.
In my opinion, this paper is a must, especially in conjuction with Brian Leiter's recent Explaining Theoretical Disagreement.
Highly recommended. Download it while its hot!
In the postscript to The Concept of Law, H.L. A. Hart describes the on-going debate inspired by his book, focusing on the criticisms of Ronald Dworkin. In this essay, I will discuss Dworkin’s criticisms of Hart, as well as Hart’s responses, showing that while Hart responds adequately to some criticisms, he fails to respond adequately to others. I will also reconstruct and evaluate the arguments given for and against the separation thesis by Dworkin and Hart. Finally, I will argue that the debate about the separation thesis – the thesis that morality and law are separable – is misguided, conflating as it does two distinct questions. These are the questions of what the positive law is, that is, the law that is posited in a specific time and place, and of what the natural law is, that is, the law that (if it exists) is universal and timeless. Once we distinguish these questions, we will see that the answer to the question of whether law is separable from morality depends on which sense of ‘law’ is relevant, and that there are two different answers corresponding to the two senses of positive law and natural law. Positive law is separable from morality while natural law is not.