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Dworkin hart

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Harts theory

Part A

This essay will outline all the ways in which Hartand Dworkin would reconcile the decision in Chester v Afshar with their theories, simultaneously offering a critique of both the theories.

Chester v Afshar in context of Harts theory

There is a general consensus on the pre-eminence of Harts positivist theories; built on the works of Bentham it maintains that morality and the law are distinct concepts.[1]Hart in developing these theories introduced “the pedigree thesis[2] which is considered central to positivist theory. It claims that rules valid with in a modern legal system must meet the criteria set out in the rule of recognition[3].

He espouses the belief that in interpreting the meaning of valid legal rules, it is often necessary to consult moral principles. Curiously, a posthumous edition of Hart’s seminal A Concept of Law gives space to Hart’s response to Dworkin’s criticism of Legal Positivism. In contrast to Hart, Dworkin believes that law is not simply a matter of rules. Moral principles are law even if they are not identified under the rule of recognition. Moral principles can also be said to be law because they have dimensions of justice.

Therefore, according to Harts scheme, only those rules which satisfy the criteria of legal validity set out in a legal system's rule of recognition may be classified as law. Anything else, including rules of morality and other social standards, cannot be law and will therefore not be directly relevant in the process of adjudication carried out by the courts.
Hart opines that a law’s validity does not depend on the existence of social rules. Instead laws exist to promote social order. Hart contributes his conceptual analysis theory to jurisprudence of legal formalism. He postulates that jurisprudence aims to give analysis of the uses to which the concept of law is put in various social practices. Given that all rules have a penumbra of uncertainty, a judge must often choose between alternatives. Simply put, Hart takes legal thought beyond the simplistic Command Theory.


Based on these facts it can be concluded that in Chester v Afshar dissenting judge's, Lord Bingham and Lord Hoffman, approach is more positivists like Hart that is applying the law within the rule of recognition, in this case it is the strict rule of causation.

As Lord Bingham stated in Chetser v Afshar:

“Satisfying the ‘but for' test is necessary if not a sufficient condition of establishing causation. Here in my opinion, it is not satisfied.

H. L. A. Hart’s concept of legal positivism was heavily influenced by Austin. However, he breaks with Austinian positivism at three vital junctures. First, he believed that the sovereign law giver is defined by his office rather than being a person who has secured the habit of obedience. Second authority is vested in rule of recognition instead of through the threat sanctions. Finally, Hart believed that laws expand liberty rather than limit it. In a nutshell Hart’s Philosophy of Law builds upon the Command Law Theory established by Austin, corrects its errors and establishes its own doctrines.

Miss Chester has not established that but for the failure to warn she would not have undergone surgery.”[5]

Lord Hoffman supported the view with his own hindsight. His subsequent statement perhaps reflects Harts view of separating identification of the law from its moral evaluation.

Joseph Raz another legal theorist argues that the identity and existence of any legal system can be tested by reference to three elements; sources, efficacy and institutional character. He states that law is therefore autonomous and can be identified without recourse to morality. Raz says the existence of every law and its content can be determined by a factual enquiry about conventions, institutions and the intention of the participants within the legal system. Law always concerns facts, it is never about moral judgements, and some therefore see Raz as a Hard Positivist. He believes that the law is authoritative and it guides behaviour in a way that morality cannot do, the law asserts its primacy over all other codes of conduct and is the ultimate source of authority.

“ Nor do I agree with Professor Honores moral argument for making the doctor an insurer, namely that his act caused the damage. ”[6]

Seeing from positivist view such as Hart, It would be very difficult to suggest the modification of the rules of causation without accepting that there would be a moral cost associated with it. Hart might perhaps refer to the case of the Speluncean explorers[7] where we saw that the positivist judges applied the law the idea was that you should leave it to parliament to make changes to the law, and even if there are moral issues the judges should just follow the law.

Dworkin’s criticism concerning Hart’s theory of legal positivism has been seen in many articles since its appearance in Dworkin’s ‘The Model of Rules I’ [16] Dworkin argues; the continually changing nature of law means that it should be analysed in terms of justice, legal principles and morals, not just plain facts.

At a first glance, one might conclude that Hart would regard the outcome is Chester v Afshar[8] as unacceptable, as despite there being a rule the judges decide to go a bit further. However deep observation reveals that Hart might justify the conclusion reached by the majority[9] as one falling under his concept of ‘open texture'.

Hart states that there are no necessary conceptual connection between the content of law and morality and there can be legal rights and duties, which have no moral justification whatever. Whereas, Dworkin rejects this in favour of the view that there must be some form of prima-facie moral grounds for assertions of the existence of legal rights and duties. So for him legal rights must be understood as a species of moral rights, this is a crucial element in his legal theory and he states that the opposed positivist doctrine belongs to ‘the peculiar world of legal essentialism’ [36] , in which they just give pre-analytical legal rights and duties without any kind of moral ground or force. Hart says legal rights and duties are the point at which the law with its coercive resources respectively protects individual’s freedom and restricts it or confers on individuals to them the power to avail themselves of the law’s coercive machinery. ‘So whether the law itself, is good or bad, just or unjust, rights and duties demand attention as focal points in the operations of the law, which Hart believes is extremely important to human beings and it is independent of moral merits’ [37] .

Hart argued that with all general rules, there will be a ‘core of certainty', central cases where the application is clear, and a ‘penumbra of doubt', where the application of the rule is uncertain.[10] At this margin of uncertainty Hart concluded that judges inevitably must use their discretion to make new law, on the occasions where the legal rules have “open texture”. In exercising this discretion, the judge or official will look to the purposes or the social consequences of adopting a certain interpretation of the rule (eg. competing policy arguments),[11] as the majority judges did in Chester.

Certain jurists are described as positivists and these include Hart, Bentham, Austin and Kelsen. They were seen as the most seemingly influential within jurisprudential theory of law, but each of these writers not only pose different questions [3] , but each of their methods of enquiry and objectives are as different as the features they tend to share. Legal positivism concentrates its attention on what law is, not on what its substantive content should be, nor on what useful things can or could be done with it.

The majority went on to allow the policy extension, telling us that, just as in Fairchild,[12] there was in this case, too, a special case for making an exception.

Lord Steyn, one of the majority judges justifies the outcome in Chester in the following words:

“…. the present case -cannot neatly be accommodated within conventional causation principles. But he was also right to say that policy and corrective justice pull powerfully in favour of vindicating the patient's right to know.

For Hart the ‘rule of recognition’ is a social rule and therefore established by the conduct of those who also accept the rule as a justification for disparaging those who fail to observe it [38] . Dworkin claims that this feature within Hart’s theory commits him to the proposition that the ‘rule of recognition’ may be uncertain within some particular points of the law itself. He also argues that if judges are divided about what they must do, if subsequent parliaments try to repeal an entrenched rule, then he states that no rule can govern any decision. Hart denies this and regards The Concept of Law as an explanation and description of the distinguishing characteristics of law from other systems of social rules, with the main ingredient being his ‘rule of recognition’.


According to positivist like Hart, the process of adjudication in these situations then amounts to almost legislation, giving judges the ability either to make new law or fundamentally to alter the meaning and range of application of existing laws.


Chester v Afshar reconciled with Dworkins theory

However theorists like Ronald Dworkin argue that this positivist approach does not accurately reflect and explain what in fact happens when courts make decisions in ‘hard cases'.


Dworkin's starting-point might sensibly be regarded as his attack on Hart's model of rules.

[16] For Dworkin law consists not merely of rules (as Hart would have us believe) but also of what Dworkin calls ‘non-rule standards'. ‘Dworkin believes that when a court has to decide a hard case it will draw on these (moral or political) standards -principles and policies- in order to reach a decision. And that there is no rule of recognition which distinguishes between legal and moral principles.
Dworkin criticises Hart’s rule of recognition as he believes that it is not possible to claim that there is criteria that determines what is ‘law’ and what it is not. This can be seen when there is a disagreement amongst judges within case law. Dworkin’s argument is that Hart’s rule of recognition is based on content, due to its source and linguistic merits, rather than because of what it actually aims to achieve. [22] He states there is no rule of recognition which distinguishes between legal and moral principles and a judge in a hard case must therefore appeal to principles, which include his own conception of what is the best interpretation of the network of political structures and decisions within his community [23] .

' [17]

i) Moral standards and the law

In Justice in Robes[18] Dworkin reflects upon the appropriate function of morals in legal theory. Dworkin proffers a hypothetical case in which he argues that adopting a Hartian ‘source thesis'[19]would annihilate Mrs Sorensen's action since it fails to include moral principles, and there is no legislation or judicial decision that would satisfy Hart's source thesis that could come to her aid.

Dworkin explains his theory by reference to hard cases that arise in the court and which have a large degree of uncertainty as to the outcome, owing to the fact that there is no pre-existing rule governing the relevant case. A case showing this is Riggs v Palmer [25] in which a grandson murdered is grandfather in order to benefit under the will. Since the will itself was valid, there was at the time no law to say the grandson could not inherit, but the court held that because of the legal principle saying that no-one should be permitted to profit from his own fraud or take advantage of his own wrong, the grandson was therefore disbarred from the inheritance.

[20] Dworkin therefore concludes that in cases such as this one, the question of what is the law is resolved ‘by asking whether the best justification of negligence law as a whole contains a moral principle that would require that result in her circumstances.'[21]

It could be said that Dworkin may categorise Chester to be in line with the Sorensen's case, likely requiring moral considerations to be taken in account.

ii) Principles and rules distinguished

Principles describe rights; policies describe goals.[22] It is part of Dworkins argument for ‘taking rights seriously' that he contends that rights have a ‘threshold weight' against community goals; this is his theory of ‘rights as trumps'. If we are to respect individual rights, he argues, they must not be capable of being squashed by some competing community goal.

To him a law can be valid despite its moral invalidity and sans any coercion backed by threats. Such views on the law can be seen today in the USA Patriot Act. This is morally reprehensible because of the many provisions that potentially violate citizens’ rights. However it is still a valid law promoting the security of American society at large. As a legal naturalist Ronald Dworkin rejects positivism. His chief objection is that moral principles can be binding by virtue of the fact that they express an appropriate dimension of justice and fairness.

By using cases such as Riggs v Palmer[23] Dworkin demonstrates that certain situations necessitate the application of principles in order to avoid absurd results. The court held in Riggs, that the application of the rules was subject to the principle that ‘no man should profit from his own wrong'.

Another example of principles outweighing rules can be seen in Henningsen v Bloomfield Motors [27] , where the court was asked to hold a car maker liable for injuries sustained as a result of defective manufacturing, even though the plaintiff signed a contract wavering liability. There was no explicit rule concerning the signed waiver, but the court held for the plaintiff. The court used a number of legal principles to support its decision and ‘in a society such as ours the motor manufacturer is under a special obligation in connection with the construction, promotion and sale of his vehicles’ [28] . The court believed these were more important, that it outweighed contrary principles, such as those that support the freedom to contract. No court before the Henningsen case applied the principle that car manufacturers were subject to a greater standard of care.

Dworkin argues that this decision demonstrates that, in addition to rules, the law incorporates principles.[24].

Dworkin would perhaps argue that in Chester the majority judges are applying principles, the relevant principle or right that judges are protecting in Chester is the right of autonomy and dignity.

Lord Steyn quoted Ronald Dworkin , Life's Dominion, in support :

“ The most plausible[account] emphasises the integrity rather than welfare of the choosing agent; the value of autonomy, on this view derives from the capacity it protects.”[25]

In the case of Chester Dworkin might disagree with dissenting judges, as they were inclined towards applying the strict rule of causation, rather than taking principles in account.

iii) Hercules and the limits of judicial discretion

Hart argues that in certain circumstances a “penumbra of doubt” occurs whereby judges inevitably use their discretion in deciding cases.[26]Although Dworkin acknowledges strong discretion in specific circumstances,[27] he provides an alternative theory regarding judicial decision-making processes in “hard cases”.

Dworkin argues that by apportioning weight to principles and applying them when deciding “hard cases” the penumbra of doubt is removed leaving a single correct answer ascertainable in each case.

Within this theory Dworkin developed Hercules J, as an archetypal judge capable of ascertaining this correct answer.
Dworkin claims that law is concerned not only with what has been established, and the rules relating to the laws themselves, but also with principles [29] . He states that unlike rules, principles have the dimension of weight or importance and when two principles lead to different conclusions, the judge must take into account the relative weight of each. Where rules do not have this, if two rules conflict, then only one can be valid and which one, will be decided on another rule, which may be the rule laid down by a higher court.

It can be argued that in Chester Dworkin would perhaps say that the majority judges are weighing principles, as two principles are seen to be conflicting. First one being the traditional principle of English law that a tortfeasor would not be liable unless he had, by his conduct, increased the risk to which a Claimant was exposed.

Austin's notion of law, as orders backed by threats of sanctions, with the fundamental legitimacy of the legal system resting on a general 'habit of obedience', was so simplistic that it would have been difficult not to improve on it. His legal positivism sees the issue of laws reducing to the issue of who sets the rule or command and how it is enforced. This has been criticised (including principally by Hart) as "the gunman situation writ large". Austin most certainly did not set out to arrive at an analysis of law conterminous with the bully-boy situation [4] . He was, however, dissatisfied with much of the fairly vacuous and impenetrable material which was being taught and in British universities. Austin's was seen as a back-to-basics approach to the analysis of law.

Secondly the principle or right judges are trying to protect is that of an individual's autonomy and dignity. According to Dworkin in such a situation the conflicting principles have to be weighed and balanced against each other before the decision is made to apply one or the other.
As opposed to Hart, Dworkin’s theory on jurisprudence is that judges appeal to binding legal standards that are more discretionary than hard and fast rules. An example is the gravamen of guilt beyond reasonable doubt. Instead of simply relying on their discretion, a judge uses jurisprudence to form a body of as yet unwritten legal standards to back up their decisions. To summarize, Dworkin champions the cause of Legal Naturalism: that laws must appeal to morality to have legal validity. Many of today’s penal laws can be said to espouse Legal Naturalism.

[28]As we see the outcome of Chester is based on policy grounds by the majority judges, Dworkin would justify this outcome explaining that in a hard case the judge will apply rules, or, when rules do not apply, as seen in Chester,he will balance legal principles in order to work out which one ‘fits' in the scenario before him. There is ‘one right answer' which the judge strives to find (‘Hercules' would always find it ).Dworkin would say that in cases where principles conflict, as in Chester, Hercules would be able to talk about policy, only because both the principles fit, it would be relevant to consider the political considerations of these principles as both of them fit.
A starting point of Dworkin’s philosophy of law might sensibly be regarded by some as an attack on Hart’s model of rules. For Hart has an understanding of what the law is and what the law should be. Dworkin says this is unacceptable as law consists not merely of rules, but a court when it has to decide on a hard case will draw on moral or political standards, principles and policies in order to reach the appropriate decision.


Furthermore, Hercules treats ‘fit' holistically. This may require him to consider related branches of the law to see whether the community has committed itself to some background right from which the concrete right would follow.

Bentham devoted a significant portion of his onslaught against the common law tradition to the theory of common law and the extent to which the theory itself differed from actual practice. In the eighteen century the common law was considered to be an expression of immemorial custom and long standing practice which embodied natural reason.

[30] Thus in arriving at the outcome of Chester, Dworkin would say that the judges have indeed taken in account other related branches of law in arriving at the conclusion, for example by referring to medical law, as well as the law of uninformed consent. And have weighed the two principles at hand and applied the one that best fits.
There are a number of core issue’s around the debate, for example does the law contain principles as well as rules, or does it concern whether judges have discretion in hard cases. Dworkin claimed that the dispute between himself or rather his ideas and Hart was whether the law itself is a model of rules, even though Hart never actually claimed that law was simply a made of just rules, as in his postscript [18] he claimed that the use of the word ‘rule’ did not claim that the legal system comprised of an ‘all or nothing’ standard.

In this case in conflict with the traditional principle of causation, as mentioned above, the principle of a right to autonomy (informed consent) overrules in terms of political morality.

Moreover, in Taking Rights Seriously, Dworkin specifically addresses the Spartan Steel[31]case, which he regards as proving his theory of adjudication[32],as he quotes:

‘That is, I suppose, what is meant by the popular idea that a court must be free to decide a novel case like Spartan Steel on policy grounds.'[33]

Dworkin would further justify the outcome of Chester based on policy grounds, by arguing that ‘if a judge's decision appears, on its face, to be based on considerations of public policy, it ought really to be understood, as an appeal to the rights of individual members of the public.


Criticism of Hart and Dworkin

However both the approaches adopted by Hart aswell as Dworkin are not free from criticism. Although compelling, Dworkins critique is not without flaw.

Dworkin criticises Hart in many points, but he says Hart’s descriptive theory of law is misguided as it cannot satisfactory take into account the insider’s viewpoint of the law [33] , which he believes is essential in understanding the legal system. He states that a theorist should speculate as if he were a participant in the practice. Dworkin therefore is saying that the most valuable theories of law are the interpretive ones. Hart believes Dworkin’s central objections seem to be that any legal theory must take account of the internal perspective of the law and that no adequate account can be provided by a descriptive theory as their viewpoint is not one of a participant, but of an external observer [34] .

Hart argues that the existence of discretion is a “conceptual truth”[34] Dworkin theory being “a noble dream” [35].Also principles can be considered “qualitatively different”[36] making it impossible to comparatively weigh them.
The sequence of the debate has been Hart’s Concept of Law, published in 1961, then it was Dworkin’s criticism of Hart’s thesis Law’s Empire, published in 1986. Hart’s response to Dworkin is contained within the Postscript of the second edition Concept of Law, which was published in 1994. The principle difference between the two writers is that Hart, at the point where the law is incomplete, in that it provides no answer to a question, then the judge can exercise his discretion in reaching a solution to fill the gap, thereby creating new law.

For Raz, Dworkin has misstated legal principles[37], “far from excluding discretion…they presume its existence and direct it”[38]. Perhaps too cynically, this leads Raz to suggests that one can only expect a low degree of consistency from judicial pronouncements[39] due to the fact that strong discretion allows them to decide cases based on their own opinions and conceptions of what is right[40].
The debate does not just concern issues as to the existence of judicial discretion, the foundations of rules [20] , the function of law itself [21] and the nature of any legal interference are other main topics, as well as the subject concerning Law and morality. The critique offered by Dworkin on legal positivism in 1967 differs from what he wrote in 1986, therefore the debate itself was seen as an evolving issue.

Within his post-scripts[41] Hart concedes that tests whether the law conforms to morals or principles may be applied, provided law and morals remain distinct.[42] However,in many ways, Hart discussion of “open texture” was preliminary: there is much work that still must be done in disentangling arguments based on the nature of language and arguments based on the nature of rules, and Hart is probably too quick to conclude immediately from the existence of “open texture” that judges do or (should) have discretion in deciding hard cases.[43]


It can therefore be argued that the outcome reached in Chester would be supported by Dworkin on the basis that the judges have exercised ‘weak discretion' and are applying principles reflecting policy to protect individual rights, which is ultimately the aim of a Dworknian approach ‘protection' of individual rights.

Or the other end of the argument could be that the outcome of Chester is in fact a little more vague than that, the law could be seen as being in line with Harts opens texture , that we have a rule on causation, but it's only a very strict rule and we have seen it in the past that it has been modified for eg in Fair child therefore it can be modified again because the rule has an open texture, so that you can narrow and widen precedent in which case Hart would not have such a problem with it, however he might has some problem with it because Hart talks about efficiency and rules being certain as positivist think that the best rules would be rules that tell us what to do, having rules which we can chop and change would be seen as problematic by a positivist like Hart.

Part B

The object of this essay is to analyse the strengths and weaknesses of ‘fact scepticism' in context of Miller v Jackson. Firstly it will distinguish between ‘rule scepticism' and ‘fact scepticism' and then go examine ‘fact scepticism' with reference to Miller v Jackson.

With regard to Brian Leiter’s view that there is a clear winner, I believe this to be untrue, neither party has conceded (in respect of Hart now this would be impossible) and due to the number of other jurists that have argued on both sides of the debate, it seems that this argument will continue and in the future will probably evolve due to new followers in each camp.

It will then look at the strengths and weakness of ‘fact scepticism'. The final part of the essay will argue that although with strengths ‘fact scepticism' is not free of flaws.

Fact scepticism v Rule scepticism

Those who declare allegiance to the banner of legal realism might just as easily be called sceptics, and they sometimes are, or even cynics.[44] Legal realists attack what they claim to be only too prevalent in traditional legal science, the conception of law as a ‘brooding omnipresence in the sky'.[45]

In order to discuss the strengths and weaknesses of fact scepticism it's important that we briefly reflect the idea of rule scepticism as well.

In developing his theory of a legal system, Hart rejects both the strictly formalist view and the rule-scepticism movement and in doing so he strikes a compromise, he accepts that laws are indeed rules, but also recognises that for a judge to arrive at a decision, they have a wide discretion and he is driven to this conclusion by virtue of the rule of recognition [15] .

Rule sceptics, include those like Llewellyn,[46] concentrate on the notion that rules do not necessarily, automatically lead to a particular conclusion or judgement so they argue that judges do not reach their decisions in a formalist way by applying rules, principles and concepts to the facts.
Although principles are at times well established by judicial precedent, they are also at times not established until there is an adjudication of ‘hard cases [30] . Dworkin defends his concept of legal principles with intent and vigour in ‘The Model Of Rules’, but his position emerges much more clearly in his article ‘On Not Prosecuting Civil Disobedience’ [31] , where his opposition to legal positivism is a kind of conundrum for philosophy of law. He is able to demonstrate that the rules approach of Hart to certifying valid positive law does not take into account the presence of principles within jurisprudence, it seems to appear in his article that principles play a role by some judges, when arriving at their decision, interpreting their reasoning and justifying their claim.

Oliver Wendell Holmes Jr[47], whose concept shows shades of legal positivism,[48] famously quoted that “General propositions do not decide concrete cases”[49].Realists however, argue that the legal process is really a rationalisation of a result, judges decide on the results usually by reference to politics and then retrospectively rationalise it, so that it seems as legally right and inevitable.

For Dworkin, Hart’s rule of recognition cannot include substantive moral standards among its criteria of law, this has been denied and has been stated as being misunderstood and arises mainly through Dworkin overlooking the fact that, in both hard and easy cases, judges share a high degree of common understanding about the criteria that determines whether a rule is actually a legal rule or not.

However, some of the later legal realists like Jerome Frank[50] took a more radical position. He criticised authors like Llewellyn for what he called their “upper courtitis”.[51]They were merely ‘rule sceptics' whereas he, Frank, was a ‘fact-sceptic ‘, who were concerned to ‘uncover the unconscious forces that affect the discovery and interpretation of the facts of the case.'[52]

For Frank, most realists missed the important aspect of unpredictability in the judicial process: the elusiveness of facts.

Hart tells us within his book The Concept of Law, there are certain matters that influence human behaviour and he divides these into two categories, social habits and social rules [11] . Hart maintains that a legal system, in contrast to a set of unrelated laws, consists of a union of primary rules of obligation and secondary rules of which the most important he believes is the ‘rule of recognition’. Primary rules are ones that actually tell people to do things or not to do something, they lay down duties. Secondary rules are concerned with the primary rules in that they lay down the ways in which primary rules may be introduced, can be varied or can be abandoned.

Thus the various prejudices[53] of judges and jurors often crucially affect the outcome of the case.[54]The main thrust of Frank's attack was directed against the idea that certainty could be achieved through legal rules. This, in his view was absurd.[55]Thus 'fact scepticism', typified by the works of Frank, ‘essentially claimed that the facts of cases were ‘illusive' and therefore one could never produce any theory which systematically mapped the facts of cases to the decisions of the court'[56] One commentator has gone so far as to describe the assertion, “in deciding cases judges respond primarily to the stimulus of the facts of the case”, as the “core claim” of American legal realism.[57]

Fact scepticism in context of Miller v Jackson

Referring to the case in question that is Miller v Jackson[58] it is hard to deny that Lord Denning was very much persuaded by the ‘realist' school of thought: one only has to look to the idyllic village cricket club that his Lordship portrays in Miller, to find that it accords perfectly with the realist fact sceptic analysis[59] and as such it is not surprising that his theory best fits with realism. Moreover, the law being whatever the courts said it was would greatly appeal to his Lordship as he was always trying to rid himself of the constraints of the law to do what he, sincerely, thought was best.

Looking at the actual question within this piece of work, and the concerns relating to the Hart/Dworkin debate, one can actually say it is slightly deceiving as it tends to suggest that it was only Hart and Dworkin that were involved in it. In fact Hart himself never directly responded to Dworkin’s theory during his lifetime, even though he did criticize some of Dworkin’s positive proposals [40] , it was left to others to defend. But who actually wins the debate, I believe no-one as they both have a different starting point and they talk past each other.

So when describing the events Lord Denning is presenting the facts in a way that suggests the merit of the outcome which he has already reached. As he quotes:

“In summertime village cricket is the delight of everyone…... [I]n the village of Lintz in County Durham they have their own ground, where they have played these last 70 years. They tend it well…………. [T]he whole village will be much the poorer. And all this because of a newcomer who has just bought a house there next to the cricket ground.

In his essay “Sovereign and Subject”, Hart proposed that the habit of obedience does not account for the relationship between subject and sovereign. This inclination to, or habit of obedience, propounded by Austin, asserts that there exists a relationship between a subject and his sovereign. Where this relationship exists we speak of a society. However, since the habit of obedience is a habit backed by threats, it differs little from the idea a gunman coercing a person to give him his purse.


Strengths and Weaknesses

Frank is certainly the most accessible of the realists, indeed, as Twining puts it, ‘clever rather than wise…. but somewhat erratic in his judgements…'[61] .At the end of the day Frank's fact scepticism is implausible simply because it is wildly exaggerated. ‘To accept that the facts are so illusive, that there is simply no rhyme or reason to the judge's or jury's decision, seems to misrepresent and insult both at the same time. It is also worth pointing out that one does not really find any disagreement that supports a genuine scepticism about facts.

That the analysis of legal concepts is worth pursuing, distinct from sociological and historical enquiries and critical evaluation.

'[62] Rather, the scepticism lies in scepticism about human rationality. His scepticism lay in a judge's or jury's ability to respond to that reality in any sort of realistic way; his position eventually amounts to the assertion that judges and juries are unable to decide like cases alike and unlike cases differently, the most basic requirement of justice.
Dworkin says what ought to be if coercion is to be justified and what at its best actually happens in his own society, whether it be consciously or unconsciously and how judges decide or try to decide on hard cases, his defect seems to be his failure to provide a sufficient answer concerning the question on whether the duty of constructive interpretation applies irrespective of the evil of a regime of which a judge can find themselves a part of [39] . Hart is telling us what any legal system is, but his defect lies in his assertion that all legal systems, at all times, hard cases are decided by judges having the discretion that he ascribes to them.

Again, whether in fact judges and juries often fail to be rational in just this way is open to question; a claim that they are constitutively unable to do so seems exorbitant.[63]

If the belief that rules matter, inside and outside courts, were to be totally discredited, it would not merely confirm the cynicism that many share about the law; it would also lead to total negativity about the efficacy of law reform.

Hart believes the secondary rules are very important in any society as an attempt to analyse the law in terms of a single type of rule would be distorted, so the secondary rules attempt to cure failing within primary rules. He argues the most important feature of the secondary rules is the ‘rule of recognition’, as through this rule, conduct can be regulated even if there are some moral disagreements. Wherever such a rule of recognition is accepted, both private individuals and officials are provided with authoritive criteria for identifying primary rules of obligation [12] . Thus Hart believes that the basis of any legal system is where the primary rules are identified by the secondary rules of recognition.

The only possible ‘law reform' would be to substitute officials with enviable prejudices for those officials we have. Judges, old or new, would automatically have absolute discretion, but we might as well make this plain by giving it to the new ones expressly- for rules to guide them would not guide them.
Austin himself was a disciple of Bentham and both Austin and Bentham represent the classical school of English legal positivism, which are often regarded as misguided. Bentham sought to subject the common law to the cold light of reason, he attempted to demystify the common law and to expose what actually lay behind the mask [5] . The law itself at the time was a perplexing network of technical rules created by lawyers and judges, which seemed to serve their own interests.


However more positively, it has had ‘some influence in directing research towards non-rule-governed operations -towards studies of the personal background of judges, the actual workings of the jury system, the practical importance of availability of legal representation, and the consequences of formality in procedure.

Dworkin’s opinion is demonstrated by the use of his interpretive theory and that is once the law is identified (pre-interpretive stage), he states that it should then be justified (interpretive stage), for example a crime of burglary is justified by the moral need for the person to protect his/her property. He states that a legal theory does not merely identify the rules of the legal system, but it interprets them and allows them to be evaluated.

But these matters were not altogether neglected before'[65] the introduction of the concept of fact scepticism.



Ø Ronald Dworkin, Taking Rights Seriously, Gerald Duckworth & Co. Ltd (1996)

Ø James Penner, David Schiff and Richard Nobles, Introduction to Jurisprudence and Legal Theory: Commentary and Materials, Oxford University Press (2002)

Ø Brian Bix, Jurisprudence: Theory and Context, (Thompson: Sweet & Maxwell) 4th Edition

Ø Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory, Oxford University Press (2005)

Ø J.W. Harris, Legal Philosophies, LexisNexis (2003), 2nd Edition

Ø Routledge.Cavendish ‘Jurisprudence' fifth edition

Ø J.E. Penner, McCoubrey & White's Textbook on Jurisprudence, 4th ed., OUP (2008)


Ø Jerome Frank, “Are judges Human?”, 80 University of Pennsylvania Law Review 17

Ø (1931)K. Himma ‘Trouble in Law's Empire: Rethinking Dworkin's Third Theory of Law' (2003) OJLS Vol.

Hart argues that there is nothing in the project of descriptive jurisprudence to preclude a non-participant external observer from describing the ways in which the law can be viewed from such an internal point of view. A descriptive legal theorist may understand and describe the internal perspective of the law without actually adopting it [35] .

23, No.3 (2003)

Ø Allan C. Hutchinson and John N. Wakefield, A Hard Look at ‘Hard Cases': The Nightmare of a Noble Dreamer, [1982] 2 OJLS 86

Ø Stephen Perry, Judicial Obligation, Precedent and The Common Law [1987] 7 OJLS 215

Ø Lon L. Fuller, The Case of the Speluncean Explorers [1949] 4 Harvard Law Review 616


Ø Miller v Jackson [1977] QB 966

Ø Spartan Steel & Alloys Ltd v Martin & Co. (Contractors) Ltd [1973] 1 QB 26

Ø Chester v. Afshar [2004] UKHL 41

Ø Fairchild v. Glenhaven Funeral Services Ltd [2003] 1 AC 32

Ø Riggs v Palmer [1899] 115 NY 506

[1] H.L.A Hart ‘Positivism and the Separation of Law and Moral'(1958) Quoted in Penner, Schiff and Nobles, Jurisprudence and Legal theory: commentary and materials (Butterworths,LexisNexis 2002) p.151

[2] Also known as “ the master rule theory”

[3] Also known as ‘master rule'

[4] Routledge.Cavendish ‘Jurisprudence' fifth edition, at page 65

[5] Chester v.Afshar [2004] UKHL 41 at page 141

[6] Chester v.Afshar [2004] UKHL 41 at page 147

[7] “The Case of the Speluncean Explorers,” Harvard Law Review, vol. 4 (1949) pp.616-645

[8] Will be referred to as ‘Chester' in the remaining essay.

[9] Majority judges in Chester v Afshar; Lord Hope, Lord Walker, Lord Steyn

[10] Hart, The Concept of Law,p.123

[11] James Penner, David Schiff and Richard Nobles, Introduction to Jurisprudence and Legal Theory: Commentary and Materials, Oxford University Press (2002) at page 121

[12] Fairchild v. Glenhaven Funeral Services Ltd [2003] 1 AC 32

[13] Chester v.Afshar [2004] at page 146

[14] Routledge.Cavendish ‘Jurisprudence' fifth edition at page 65

[15] They are those cases which deal with a fundamental proposition of law, upon which lawyers disagree. See Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory, Oxford University Press (2005) at page 147

[16] Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory, Oxford University Press (2005) at page 142

[17] Ibid

[18] Ronald Dworkin, Justice in Robes (Cambridge, Mass and London; Harvard University Press,2006).

[19] i.e. that law identified by reference to statutes, precedents, and social practice

[20] Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory, Oxford University Press (2005) at page 151

[21] Ronald Dworkin, Justice in Robes (Cambridge, Mass and London; Harvard University Press,2006).

[22] Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory, Oxford University Press (2005) at page 145

[23] Riggs v Palmer [1899] 115 NY 506

[24] Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory, Oxford University Press (2005) at page 146

[25] Chester v.Afshar [2004] UKHL 41 at page 144

[26] Argued by J. Raz quoted in S. Perry ‘Judicial Obligation, Precedent and the Common Law' (Summer 1987) OJLS Vol.

While Hart’s theory is probably the dominant view among analytically inclined philosophers of law, it is also the subject of competing interpretations together with persistent criticisms and misunderstandings. Many others have argued on both sides including Joseph Raz, Jules Coleman, Harold Granville, John Finnis, Hans Kelsen, Lon Fuller and Kenneth Himma to name but a few.

7 No.2 page 233.

[27] R Dworkin A Matter of Principles p.122 quoted in J.W Harris Legal Philosophies( 2nd edition Lexis Nexis UK 2003) page 207.

[28] Routledge.Cavendish ‘Jurisprudence' fifth edition at page 66

[29] Ronald Dworkin, Taking Rights Seriously, Gerald Duckworth & Co. Ltd (1996) at page 60

[30] J.W. Harris, Legal Philosophies, LexisNexis (2003), 2nd Edition at page 200

[31] Spartan Steel & Alloys Ltd v Martin & Co. (Contractors) Ltd [1973] 1 QB 26

[32] Ronald Dworkin, Taking Rights Seriously, Gerald Duckworth & Co. Ltd (1996) at page 83-85

[33] Ibid

[34] K. Himma ‘Trouble in Law's Empire: Rethinking Dworkin's Third Theory of Law' (2003) OJLS Vol.

Jurisprudence is the study of the nature of law, one of the main questions that may occur in a person’s mind is ‘what is law?’. John Austin made this question a focus of his attention and in the late ninetieth century Austin’s views were established as a dominant force within English legal thinking, and his work within jurisprudence has been regarded in the Anglo-American tradition as the leading work in opposition to the natural law theory.

23, No.3 (2003) page 346.

[35] Hutchinson and Wakefield ‘A Hard Look and ‘Hard Cases': The Nightmare of the Nobel Dreamer'(Spring 1982) OJLS Vol.2 No.1 page 90.

[36] J.W. Harris Legal Philosophies (2nd edition Lexis Nexis UK 2003) page 209.

Furthermore Hart in distinguishing primary rules of obligation from the secondary rules he takes the position that there is at least one type of law that imposes an obligation [13] , which tells citizens that they must not do this or that they must do it, which raises the question of what an obligation with respect to legal rules actually mean [14] .

[37] James Penner, David Schiff and Richard Nobles, Introduction to Jurisprudence and Legal Theory: Commentary and Materials, Oxford University Press (2002) at page 353

[38] Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory, Oxford University Press (2005) at page 136

[39] Stephen Perry, Judicial Obligation, Precedent and The Common Law [1987] 7 OJLS 215 at page at page 233

[40] J.W. Harris, Legal Philosophies, LexisNexis (2003), 2nd Edition at page 209

[41] HLA Hart, The Concept of Law.Second edition, page 250 discussed in R Wacks Understanding Jurisprudence (OUP, Oxford 2005) page 70.

[42] Also termed “soft positivism” JW Harris Legal Philosophies 2nd edition page 121.

[43] Brian Bix, Jurisprudence: Theory and Context, (Thompson: Sweet & Maxwell) 4th Edition at page 47

[44] Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory, Oxford University Press (2005) at page 172

[45] J.W. Harris, Legal Philosophies, LexisNexis (2003), 2nd Edition at page 98

[46] Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory, Oxford University Press (2005) at page 179

[47] Holmes meant to refer to quite general legal concepts or principles. Holmes believed that specific legal rules would determine results in most legal cases.

That a legal system is a closed logical system in which correct decisions may be deduced from predetermined rules by logical means alone.

[48] Followers of legal positivism are generally called legal positivists like Hart mentioned in part A.

[49] Loncher v New York, 198 U.S. 45 at 76 (1905)

[50] Jerome Frank, “Are judges Human?”, 80 University of Pennsylvania Law Review 17 (1931)

[51] J.W. Harris, Legal Philosophies, LexisNexis (2003), 2nd Edition at page 100

[52] Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory, Oxford University Press (2005) at page 179

[53] For example,plus or minus reactions to women,or unmarried women, or red-haired women,or brunettes, or men with deep voices or those who have pronounced gestures or nervous tics.See Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory, Oxford University Press (2005) at page 179

[54] Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory, Oxford University Press (2005) at page 179

[55] Ibid

[56] J.E. Penner, McCoubrey & White's Textbook on Jurisprudence, 4th ed., OUP (2008) at page 60

[57] Brian Leiter, “Legal Realism”, in A Companion to the Philosophy of Law and Legal Theory (Dennis Patterson ed, Blackwell, Oxford,1986),pp. 261-279,at p.269

[58] Miller v Jackson [1977] QB 966

[59] Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory, Oxford University Press (2005) at page 180

[60] Miller v Jackson [1977] QB 966 Per Lord Denning MR, at 976.

[61] Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory, Oxford University Press (2005) at page 180

[62] J.E. Penner, McCoubrey & White's Textbook on Jurisprudence, 4th ed., OUP (2008) at page 62

[63] Ibid

[64] J.W. Harris, Legal Philosophies, LexisNexis (2003), 2nd Edition at page 103

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