Comparative Legal History & 4-5 June The pros and cons of legal positivism (H L A Hart s version)

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1 UPPSALA UNIVERSITY EXAM Department of Law Contemporary Jurisprudence Comparative Legal History & 4-5 June 2013 Contemporary Jurisprudence Write an essay about: The pros and cons of legal positivism (H L A Hart s version) Max 4 pages. NOTE! To receive full marks on the exam, you must answer the questions correctly. Read them carefully. Moreover, the answer must be independently formulated and carefully argued in a way that demonstrates a mastery of the topics discussed. That is, a mere retelling of the theories discussed in the course material is not enough. Good Luck!

2 Academic quality demands and exam requirements By the grading at the Contemporary Jurisprudence part, the ability to analyse in an independent, relevant and competent way will be assessed. Compare and analyse implies that the student have made a consequent, systematic and coherent comparison between different legal traditions. Independent implies that the student is not only describing, but also reflecting over similarities and differences between different legal traditions and the laws relation to different historical factors. Relevant implies that the student can identify and focus on the question and make a balanced disposition of the questions different part aspects. Competent implies to demonstrate familiarity with the course literature and sources and the ability to make use of them when responding the question. It also implies the ability to collect, revise and melt together information from different sources to one piece. To obtain the grade AB a very good ability is demanded, for BA a good ability is demanded and for the grad B an acceptable ability to achieve the above mentioned requirements is demanded.

3 1 Code Number: Introduction Legal positivism has been the most influential theory of law during the recent centuries and has left its mark on all modern Western legal systems. Hart s positivism further developed the ideas of its fathers, Bentham and Austin, and fixed some shortcomings of their original theories thus creating a more coherent version of positivism. Hart s theory can, nevertheless, be criticised from the standpoint of several other legal theories. One of the sharpest critics was Dworkin, who criticised the way Hart s theory ignores the prevalence of legal principles. Positivism can be even criticised from the natural law perspective due to its separation of law and morality as well as from the standpoint of legal realism as it can be questioned how binding rules in reality are for judges. This essay will first discuss the main tenets and merits of Hart s legal positivism and then proceed to the criticism of his theory. 2. The Positive Side of the Positivism Hart s Main Tenets and Merits According to Hart, law consist of a system of rules that everyone has an obligation to follow. 1 The most obvious pros of Hart s theory can be seen to be the improvements he made to the original ideas of classic positivists who claimed that the legal system consisted of commands of sovereign backed by sanction. 2 Hart managed to cure the chronic problems of the command theory by showing that not all legal rules are coercive but that there exist even facilitative rules in the legal system and by giving a more realistic explanation as to why people find law authoritative. As regards the legal obligation, Hart did not accept that it would be only fear of sanctions that granted law its authority as this would mean that there was no difference between the rule of law and the rule of a gunman. 3 According to Hart, the crucial element of a legal obligation is that people actually accept the existence of rules, instead of just obeying the rules out of fear or habit. 4 There can naturally be other aspects that affect the feeling of being legally bound to follow the rules, but Hart s theory is undoubtedly more nuanced than its predecessors in taking account what he calls the internal aspect of the rules. Hart also asserts that the legal system consists not only of obligating primary rules but even of secondary rules. 5 The most important rule of the second category is the rule of recognition, which helps to distinguish legal rules from other non-legal rules such as moral rules. It thus validates the other rules in the legal system, being itself accepted rather than legally validated 1 McCoubrey & White, p McCoubrey & White, p McCoubrey & White, pp McCoubrey & White, p McCoubrey & White, pp

4 2 Code Number: 303 as the rest of the rules. 6 Generally, Hart s description of a legal system stands out as more convincing compared to the command theory, as it not only identifies even the internal and facilitative aspects of law but also recognizes that the primary rules, even those that can be perceived as commands, need to be supported by secondary rules. Further, the central tenet of positivism about separation of what is and what ought, is even the heart of Hart s theory as becomes clear from his article Positivism and Separation of Law and Morals. Consequently, the legal validity of a rule is completely independent from its moral value and a mere moral value of a rule cannot make it law. This does not, however, mean that morality can in no way intersect with law. Moral, as well as social and economic, values can very well play in when creating new rules either by legislature or by courts in unclear cases when judges use their discretion. Some rules also can require moral aspects to be taken into account. Moreover, Hart s adamant separation of law and moral makes the criticism of legal system easier as it clearly defines its object, i.e. the legal rules. The morality of law thus lies in the hands of lawmakers and in a liberal democracy this lucid division can be thought to provide an ideal ground for critical outlook on the legal system. It can, nonetheless, be questioned if the distinction is tenable in the case of tyrannical lawmakers. 3. Law, Morality and Natural Law Is Hart s Positivism Unnatural and Immoral? It should accordingly be clear that the distinction theory does not mean that there can be no interaction between law and morality as is the case e.g. when creating new rules. It can, however, be discussed if law and morality should not exist in an even greater symbiosis. Firstly, it can be discussed if there is a need for minimum moral standards in every legal system in order for it to be viable. And how can we ever be sure that no new Third Reich will turn up? Hart concedes that there exists a so called minimum content of natural law, which every legal system needs to contain in order to function, but these truisms aim principally to guarantee the basic survival of the people and the effectiveness of legal system and do not have any explicitly moral content as such. 7 In case it is felt desirable that morality should permeate law deeper than this and have some relevance as regards the legal validity of a rule, Hart s theory has nothing more to offer in that sense. One of the pros of Hart s theory is, however, that it recognizes the facilitative quality of law and it can thus be discussed if this aspect of legal system should not be used in order to achieve even greater social good. Why should law aim to make it easier for people to make 6 McCoubrey & White, pp McCoubrey & White, pp

5 3 Code Number: 303 contracts and wills but not further their good life in general? According to Finnis natural law theory, which has been inspired by the positive aspects of law in Hart s theory 8, law should advance the general human good derived from human nature. This is further concretized in his model of seven basic forms of human good, which there is a duty to respect. This duty leads in turn to the creation of absolute human rights. 9 Including these kinds of moral purposes in the concept of law is light years from Hart s theory and serves well to demonstrate the difference between positivism and natural law. There exists a form of soft positivism that asserts that moral criteria, such as human rights, may be incorporated in the rule of recognition 10, but Hart s original theory holds on tight on the assertion that law is law and morality is morality. That Hart s theory has inspired a modern natural lawyer to develop a theory with opposite outlook on relationship between law and morality can been seen as a merit in itself as it underlines the importance of his recognition of the facilitative side of law. 4. Legal Principles and Non-legal Factors Do Rules Really Rule It All? If Hart s positivism survives the scrutinizing of the pure natural law theories as the differences are based on fundamentally different understandings of the relationship between law and moral, Dworkin s natural law inspired criticism manages to reveal vital incoherencies in his theory. As said above, the core of Hart s theory can be described as a system consisting of rules only. Rules hence being the main constituents of the Hartian legal system, it can be discussed how his theory would survive in case it could be shown that in reality rules were not the only factors that affected the actual legal decision-making? According to Dworkin, law consists not only of rules, but also of principles. So when courts decide unclear cases they do it with help of already existing principles instead of creating new rules by using their discretion as Hart claims. 11 As Dworkin is able to show with help of examples from case law that this is something that courts actually do and manages to moreover demonstrate that Hart s theory, particularly his rule of recognition, is unable to explain the binding force of these principles, it can be argued that Dworkin has managed to seriously undermine Hart s positivism. Not being able to account for something that is evidently taking place in the courts all over the world is an obvious con of Hart s theory. Dworkin succeeded thus in showing that courts do something, that is to say apply principles, which Hart s theory cannot explain. The theories of legal realists can be seen to 8 McCoubrey & White, p. 82, 9 McCoubrey & White, pp McCoubrey & White, p McCoubrey & White, pp

6 4 Code Number: 303 pose the same kind of challenge to positivism as regards the importance the rules themselves. The legal realists argue that even non-legal factors, such as the morals, prejudices and policies of judges, play a central role in the judicial decision-making. 12 While the positivism connotes that the predictability of law follows from the correct application of rules, the realists deny that it is possible to make correct predictions of courts decisions without understanding all the others factors that affect judges activities. Therefore, in order to be able to predict the outcome of a case, it is more important to concentrate on the behaviour of the judges instead of just the rules they are applying. If Hart s theory is immune for the existence of legally binding principles, it is even more difficult to see how it would be able to accommodate a standpoint that questions the entire validity of legal rules. Even though legal positivism accepts that judges can have discretion when dealing with hard cases, it is inherently incompatible with the ideas of rule and fact scepticism advocated by some legal realists. 5. Potent Pros or Conclusive Cons? The Conclusion To sum it up, the greatest merits of Hart s theory can be argued to be that he managed to upgrade legal positivism to correspond more closely to the way legal rules actually work, which goes way beyond dealing out coercive sanctions. He even defined a legal obligation in more realistic terms as consisting of more than merely of a fear of sanctions. His theory manages, however, not to fit in some aspects of legal system that undoubtedly exist, as is the case with legal principles and possibly even the non-legal factors as asserted by the legal realists. When it comes to the distinction between law and morals, those who feel that law should be used as a moral tool promoting the further good of the people and not just as a mechanism for upholding some sort of social order, might experience the positivist distinction theory as unreasonably restricted and ignoring the full beneficial potential of law-making. Yet the different standpoints as regards this classic legal philosophical debate about the right relationship between is and ought should be taken for what they are: different standpoints on a classic legal philosophical debate. On the contrary, it is much more crucial that legal theories are able to correctly describe what the courts are actually doing. But as Gräns has pointed out, this is surprisingly often not the case. 13 That is why the conclusive con of Hart s theory can be argued to be the fact that it is not able to account for legal phenomena that do exist in the courts but do not fit in his theory. So while Hart s theory is positively an improved version of positivism compared to its earlier manifestations, it cannot accommodate the increasing knowledge about what it is that judges actually do. 12 McCoubrey & White, pp Gräns, pp

7 5 Code Number: 303 Sources Gräns, Minna, Some Aspects of Legal Decision Making in Light of Cognitive Consistency Theories, in Peter Wahlgren & Mauro Zamboni (eds) Perspectives on Jurisprudence. Essays in Honour of Jes Bjarup (Stockholm: Faculty of Law Stockholm University, 2005) pp Hart, H.L.A., Positivism and the Separation of Law and Morals, Harvard Law Review 71 (1958) pp McCoubrey, H, White, Nigel D, McCoubrey s & White s Textbook on Jurisprudence, Oxford University Press, 2008

8 The pros and cons of legal positivism (H L A Hart s version) Take-home exam in Contemporary Jurisprudence Code number: 308

9 Contemporary Jurisprudence Code no. 308 Uppsala University B-period, Spring 2013 Legal positivism and Hart s criticism Legal positivism is the theory that law is a constructed system of rules which is totally separated from moral ideas. Within this main thesis fits two important statements. The first is that law consists of rules that have been written down in legal sources. As long as a law can be derived from a legal source, it is the law, no matter if it is considered immoral or unfair. In the same way, a way of acting which is considered morally correct does not constitute the law only because it is the moral way of conduct; it must be found in a legal source. The second statement is that terms such as legal rights and obligations are not connected to morality and should thus be kept apart from moral rights and moral obligation. Although Hart built his theory on criticizing many parts of the classical legal positivism, this main thesis still makes up the core of Hart s theory of legal positivism. Legal positivism, like many other theories of jurisprudence, aims inter alia at answering the question what is law?. Bentham and Austin s theory on the command rule tried to explain the question separating it from morals. The command rule states that law is a sovereign authority s command to people to comply with the rules and behaviours prescribed or to face penalties. The sovereign authority constitutes the authority from whom the majority of the people would take behavioural commands, and it does not answer to anyone else s commands. Even though the theory might appear logical in any democratic society where the legislative power does belong to an authority which the people choose to follow, this theory became the basis for Hart s criticism and evolution of legal positivism. Hart meant in his criticism that rules do not only create obligations for people to follow rules under the threat of punishment. He meant that rules also can give individuals authority e.g. to enter agreements or write a testament. In Hart s opinion there is also a clear distinction to be made between an obligation and a command, as a threat of punishment might induce someone to obey a command but does not create an obligation to act in accordance with that command. A robber, for example, can induce someone to give him money by threatening with a weapon, but giving the money is not an obligation that derives from law. Primary and Secondary Rules Hart distinguishes between primary and secondary rules. Primary rules are laws that impose obligations on people to enact certain behaviour in order to regulate conformity in society. These are complemented by secondary rules which are rules that regulate the function of the 1

10 Contemporary Jurisprudence Code no. 308 Uppsala University B-period, Spring 2013 primary rules, such as how to impose a rule, how to change it and how to adjudicate it. Furthermore, in order for a legal system to be effective, Hart insists that primary rules are rules that ought to be followed by people, while secondary rules must be accepted by society s officials to ensure the legality of the primary rules. Even though Hart manages to distinguish the role of different kind of laws, I do not think that he explicitly raises the question what law is. In his criticism of Austin s command theory he raises the issue that Austin relied on a behavioural pattern to explain how law represents peoples following of the sovereign s commands instead of relying on a rule stating that it shall be done. Hart s response to Austin s theory is that people have an inner aspect to consider in excess of the outer aspect represented by the behavioural pattern. This inner aspect is reflected in the fact that when people act in discordance with the law they will be subject to critique by society and this critique is deserved. This creates inner legal threads which people want to follow or adapt. The legal threads represent what people ought to do. In this case, I find it very difficult to maintain the separation between law and morality in Hart s theory. Although we are rather intelligent creatures that manage to identify both external aspects such as the majority s behavioural pattern as well as internal aspects saying we will be blamed on a deserved ground, I cannot see any other incitement for us to follow those aspects than moral or the threat of punishment (or infringement of rights or security, for e.g. when renting accommodation). What we feel we ought to do is surely based on an indictment we have saying it is more important than another way of conduct. Yet, a criminal might feel he ought to rob a bank and thus have a different set of moral values. It seems that Hart is trying to explain what law actually is and not necessarily why we follow it or not. Nonetheless, what is a written law if it does not have any effect? Rule of recognition One of the most fundamental secondary rules in Hart s theory is the rule of recognition. The rule of recognition is the rule stating from where the legality of legislation derives. Any primary rule has to be traceable back to the rule of recognition in order to be valid. Different from all other laws, the rule of recognition is not written, and thus one might ask how it is established. As any other secondary rule it has to be generally accepted and followed by officials due to their internal aspects and legal threads. Who these officials more specifically are is not clarified by Hart, which might be problematic. However, they must be some sort of socially recognizable authority as the people are expected to feel obliged to follow the 2

11 Contemporary Jurisprudence Code no. 308 Uppsala University B-period, Spring 2013 primary rules established by them. Also in this part of his theory does Hart rely on empirical behavioural patterns which he had criticized Austin for doing. Although I do agree with Hart s theory more than Austin s, I do find some of his critique unfair. If the empirical facts show that we follow the authority deriving from the rule of recognition, what is it that makes us do so if not fear for punishment or morals? Although moral is not needed for recognizing what the legal sources actually state, the legal sources themselves must imply some indictment to follow them in order to gain their authority. No matter what it is that makes people and officials act in accordance with the legal threads, Hart s rule of recognition allows for the legislative authority to remain flexible with the evolution of society. Especially in contrast to Kelsen s ground rule which states that an assumption must be made that the authority in power must be obeyed. Hart disapproved with Kelsen s theory by stating that a law s validity is not equivalent to an obligation to obey it. I agree with Hart on this matter, although I remain very confused regarding whether Hart s rule of recognition can remain compatible with the legal positivism s main thesis. Ideas expressing legal obligations as a kind of moral obligations, and thus compatible with the thesis in legal positivism that the law is the law no matter if it is unfair or not, can be found in doctrine. 1 The morality in such case is not expressed as all laws being fair, but as an acceptance of that law derives from an empirically proven behavioral pattern and ought to be followed. I fully agree with the conclusion that the discussion led to, namely that the internal aspects are a moral set of mind towards how we should treat the valid law, not necessarily a moral liking of the law s content. Law and the role of judges The most famous criticism against Hart s rule of recognition is probably Dwarkin s which mainly focuses on Hart s theory s inability to recognize legal principles as law. Considering the importance of principles such as pacta sund servanda in most civilized legal systems I find this critique highly relevant. The critique developed from Hart s explanation of courts application of the law. In the clear cases, where there is no doubt that a law is applicable; the judges must apply that particular law. In hard cases, where it is unclear which law is applicable, the judges must use their discretion and create new rules using the motives behind the laws and social values. In Dwarkin s example case, Riggs v. Palmer, where he argues that 1 Nigel E Simmonds, Juridiska principfrågor, Nordstedts Juridik 2008, P

12 Contemporary Jurisprudence Code no. 308 Uppsala University B-period, Spring 2013 the court used principles instead of written laws, the question arises if principles do not make part of the law as well, although not recognized by Hart. Hart did emphasize that when answers cannot be found in the laws, judges will have to seek the answer elsewhere, and it is in the nature of the language that we use that inconsistency in interpretations of the law arise. This recognition, I believe, is one of Hart s most important strengths as it eases the acceptance of a theory that might otherwise seem much too formalistic. I also find the explanation, simple as it might seem, as much more logic and pragmatic than the ones presented within legal realism. It would in my opinion as well seem like a hopeless conception of law to expect the law to predict exactly how each case will be judged in court, although I must admit it would be theoretically desirable. 2 Although Hart does not explicitly include legal principles as law in his theory which also stands in accordance with Dwarkin s arguments in his critique, it seems one could argue that Hart s and Dwarkin s theories are compatible in certain aspects. Even the distinguished legal principles of which Dwarkin speaks must correspond to a criteria making it a legal principle. One could ask if we could not distinguish legal principles as well as using the rule of reason. Conclusion Although I remain sceptical about the separation Hart tries to maintain between law and morality, I believe his theory contributes well to answering the questions of what law is and where it gains legitimacy. Hart manages well to illustrate that it is a misconception that legal positivism does not account for moral at all. On the contrary he shows it has importance, for example in hard cases. It occurred to me that the definitions of morality sometimes appear to change in Hart s theories and conception of morals. In the distinction between moral and legal rights and obligations morality gains a particular connection to fairness, while in the context of behaviour it is connected to society s expectations. A precision in Hart s theory that the conception of that what one ought to do does not always necessarily relate to what is fair but also to what one might believe is expected from oneself, would however only further confirm what has already been concluded above, namely that it is a moral conception to accept the law although it is not fair. 2 McCoubrey, H & White, Nigel D, McCoubrey & White, Textbook on jurisprudence, p. 78 4

13 Contemporary Jurisprudence Code no. 308 Uppsala University B-period, Spring 2013 Sources Nigel E Simmonds, Juridiska principfrågor Rättvisa, gällande rätt och rättigheter, Nordstedts Juridik, 2008 McCoubrey, H & White, Nigel D, McCoubrey & White, Textbook on jurisprudence, Oxford University Press,

14 Code #316 The pros and cons of legal positivism (H.L.A Hart s Version) Jurisprudence is the theoretical study of law 1. H.L.A Hart s version of legal positivism is a legal theory, which describes what the law is, this being the dominant question raised by legal philosophy 2. The pivotal tenets of positivism in general are that law is a set of exhaustive rules and the validity of such is due to their method of adoption, not content. This essay analyses the advantages of H.L.A Hart s theory against Austin s classical positivism, as Hart s method brought clarity and sophistication to Austin s theory. Further, the advantage of Hart s minimum content of natural law over the natural law theory is presented. Finally I highlight the disadvantages of Hart s theory demonstrated by Dworkin in terms of the failure to recognise principles with the rule of recognition and Fuller with regards to not progressing the worth of fidelity in the law. II H.L.A HART S THEORY H.L.A Hart s theory was established as a criticism of the of the positivist command model described by Bentham and Austin. 3 There they described the validity of a law as a command issued by the sovereign to ordinary people backed by a sanction, these sanctions being foreseen consequences for noncompliance. 4 Austin s model rests on the assumption that an institution or sovereign can be identified that has ultimate control over all groups. Although, this is not valid in a modern society where political power is pluralistic and changing 5 therefore it is frequently impossible to say a sovereign has such exceptional control. 6 Also, Austin s command theory is inadequate in its description of how rules produce obligations as it determines them only when a threat of force is applied 7 and therefore cannot describe the complicated structures of a real society 8 The command theory does not result in people internalising rules as in Hart s theory; the feeling of such allows a distinction to be made between being obligated and being obliged. Being obligated allows us to identify laws even if the sanction, or threat of force is not expected to be applied. 1 J.E Penner and Dr E Melissaris, McCoubrey & Whites Textbook on Jurisprudence (Oxford University Press. 5 th Ed, 2012), 1 2 Ibid 1, 2 3 Ibid 59 4 Ibid 42 5 Dworkin, R.M, Is law a System of Rules? 39 6 Ibid 39 7 Ibid 40 8 J.E Penner and Dr E Melissaris, McCoubrey & Whites Textbook on Jurisprudence (Oxford University Press. 5 th Ed, 2012), 62 1

15 Code # 316 Hart s model states that obligations are imposed on people through a facilitative system of primary and secondary rules, rather than a coercive command. 9 Primary rules are those that place obligations on or give rights to the people of the community, where secondary rules specify how the primary rules are to be established, removed or altered by the systems officials. Hart refers to the foundational secondary rule as the rule of recognition, which gives primary rules their authority over the general public through providing the officials with a benchmark of their behaviour. 10 The advantage of this is that Hart is providing a theory where the rules are not dependent on the physical authority of the sovereign as in the command theory 11 but rather the constitutional norms that the officials accept and act within, the rule of recognition. 12 By adding in the hermeneutic aspect of the law; that it is dependent upon what people think it is and not just a mere coercion, it better describes the system of what the law is. Hart s model of duty imposing and power conferring 13 rules also has an advantage over Austin s theory as it removes four fundamental failures of what the law is. It allows an explanation for rules that do not emerge from commands, for example those from customs. It explains laws that create powers and not only duties, for example delegated legislative authority. Also, the command model did not explain laws that did not result in sanctions, for example the making of a contract. Finally that law under Hart s theory applies to those that enact them, not just those subject to the sovereign. III ADVANTAGES OVER NATURAL LAW To be able to provide an extensive account of what the law is, the effect of moral considerations upon the assessment of a legal theory requires consideration. A natural law theorist argues that legal officials are subject to moral standards in the making and application of laws 14. Hart is of the opinion that adoption of morals in determining the legal validity of laws is flawed and natural law theory should be rejected as it inadequately distinguishes the character of legal obligation; an advantage over natural law theories ability to determine what the law is IBID Ibid Dworkin, R.M, Is laws a System of Rules? Ibid E Penner and Dr E Melissaris, McCoubrey & Whites Textbook on Jurisprudence (Oxford University Press. 5 th Ed, 2012), Ibid Ibid 59 2

16 Code #316 Further, Hart recognises a minimum content of natural law, this being the adoption of five truisms which respect natural law theory and are fundamental to a legal system being effective. Essentially they provide a base of fairness and support the interests of those that the law applies to, therefore creating stability in the legal system. In contrast to this, a system that did not display these truisms would be subject to disruption 16. Hart has been criticised that this law does not provide a minimum content of natural law but rather it is merely a functional argument for an effective order that regulates society 17. The advantage of this is that the minimum content is more general than the natural law theory and can be applied across more legal systems therefore giving a further account of what the law is in comparison to natural law. IV DISADVANTAGES OF HART S THEORY Another aspect of Hart s theory is the analysis of the role of judges. Hart holds that even though the majority of rules being applied will be clear, there will be cases where the rule becomes uncertain due to the open texture of words, e.g. the definition of vehicle is open where a definitive list is not supplied 18. Hart states that where a judge cannot determine a case by accepted rules they must use their discretion, looking to the purpose and policy considerations of the rule 19. Through the use of case examples, Dworkin argues against judges being able to make decisions based on policy and not law, demonstrating that judges do not become lawmakers, but rather exercise legal principles founded by law in deciding hard or unclear cases; 20 principles being laws that give support for an argument in a certain direction, but don t require a particular decision like a rule. 21. For example in Riggs v Palmer, the court applied the principle no man may profit from his wrong to find that a murder could not inherit under the will of his victim even though the law allowed it. 22 Here, Dworkin is also giving principles another function. In addition to being gap fillers in the law, they are being applied to prevent injustices IBID Ibid Ibid Dworkin, R.M, is law a System of Rules? E Penner and Dr E Melissaris, McCoubrey & Whites Textbook on Jurisprudence (Oxford University Press. 5 th Ed, 2012) Dworkin, R.M, Is the law s System of Rules? E Penner and Dr E Melissaris, McCoubrey & Whites Textbook on Jurisprudence (Oxford University Press. 5 th Ed, 2012) 85, IBID 86 3

17 Code # 316 The above demonstrates a disadvantage of Hart s theory due to the fact that if the law is a system of rules identified by the foundational secondary rule, the rule of recognition does not recognise these principles that form a significant part of the law 24. Also, Hart holds that when there are such hard cases, the judge may either make new laws or extend a current precedent to cover the factual scenario. This choice allows Dworkin to argue that the decision is based on what the judge sees as best for society and not legal determinates. Dworkin states that such a role is for the legislator and opposes that judges hold discretion in the strong sense, being able to decide cases without being bound by the law 25. Another disadvantage of Hart s theory arises when political groups use positive law for oppressive reasons 26 resulting in reduced fidelity of the law. Using the grudge cases of Nazi Germany as an example; where people made use of oppressive laws to resolve personal grudges, under Hart s theory no matter how immoral the law was, as long as the law was validly made it is still law. In response to this, Fuller argued that positivism s attempts to segregate legal obligation as the duty to obey laws from all other obligations was wrong 27. Although Hart states that the law may be set aside through retrospective legislation, Hart s argument does not progress the worth of fidelity to the law. 28 V CONCLUSION The advantage of Hart s theory in comparison to Austin s is that by internalising obligations as opposed to the command theory, it better describes what the law is as it accounts for the complex structures in the law that fall outside Austin s theory of coercive obligation. Also Hart s and his minimum content of natural law better explains what the law is compared to natural law theories that have only recently started coming back into favour after the rise of totalitarian states in the mid 20 th century. 29 Finally it is evident that Hart s theory of the law as a system of rules fails to recognise legal principles as law, which results in disturbing Hart s tenet that judges may exercise discretion in the strong sense when faced with hard or unclear cases. Finally, Hart and legal positivism do not promote the worth of fidelity in the law. 24 Dworkin, R.M, Is the law a System of Rules? 42, E Penner and Dr E Melissaris, McCoubrey & Whites Textbook on Jurisprudence (Oxford University Press. 5 th Ed, 2012), Ibid Ibid Suri Ratnapala, Jurisprudence (Cambridge University Press, 2009), E Penner and Dr E Melissaris, McCoubrey & Whites Textbook on Jurisprudence (Oxford University Press. 5 th Ed, 2012), 27 4

18 Code #316 Bibliography Dworkin, R.M, Is the law a System of Rules? E Penner and Dr E Melissaris, McCoubrey & Whites Textbook on Jurisprudence (Oxford University Press. 5 th Ed, 2012) Hart, H.L.A, Positivism and the Separation of Laws and Morals, Harvard Law review 71 (1958) pp Suri Ratnapala, Jurisprudence (Cambridge University Press, 2009) 5