Hart And Dworkin: A Comparative Analysis

Introduction

The aim of this paper is to discuss the theories of law of Hart and Dworkin from the perspective of three Ulpian statements in order to uncover some of the major dialectics in legal philosophy. At the core of the debate between H. L. A. Hart and R. Dworkin lies the latter’s critique of Hartian legal positivism. The analysis starts by discussing the philosophical assumptions of both scholars and continues with a short discourse of the Ulpianus statements. At the same time, it proceeds to a comparative analysis vis-a-vis several key values as presented by both scholars, their relation to the Ulpian law system and concludes with their dialectic relationship. Instead of merely engaging into the well-know debate the paper will elaborate

The paper adopts the comparative approach in its research methodology as the most appropriate means to answer the questions-points between the two sides of the debate. It first describes the core issue under question, then it develops the compared theoretical concepts involved and, finally, it discusses the logic of comparison concluding to the relationship of the debated issues.

Hart and Legal Positivism

In his famous and controversial work The Concept of Law first published in 1961, Hart placed law into a social context aiming to provide explanatory assertions to a number of jurisprudential questions including the definition of law, the relationship between law and rules and the morality factor. He uses the theory of legal positivism in the framework of analytical philosophy.

As adopted by Hart, legal positivism stands for the absence of connection between law and morality and promotes the view that law is comprised by rules made by human beings. Legal positivism sees law as a social construction whose legality, even in case of insufficiency or imprudence, must not be

Thus, in a sense, Dworkin's criticism on Hart was not contradictory but rather complementary. Even with his theory about the Herculean judge, a rule of recognition is needed and, actually, presupposed. What is more, the very essence of Dworkin's theory is based on the Hartian view; he does not suggest something completely different as a theory; what he does make is points that are based upon a well-structured theory on law's nature.

While Dworkin's theories ofter are utopian, Hart's viewpoints could not respond to modern societies. Hart's fixation for the external description of legal practice with no moral statements and his commitment to positivism created a loop in his analysis. Needless to say that, this debate is a representative example of how dialectics contribute in social sciences

What we conclude in is that it rests upon the ever changing nature and character of society itself to synthesize and generate law; after all, law is always bound with societal features over time. We explicitly saw how law was perceived during the Justinian era and how its nature has changed over the years. Law, like societies, changes, evolves and improves as years go