On Ronald Dworkin’s “The Model of Rules” (1967) and Scott J. Shapiro’s “The ‘Hart-Dworkin’ Debate: A Short Guide for the Perplexed” (2007).
How do judges make decisions in hard cases? When the law “runs out” and doesn’t definitively decide, e.g., whether we have a general “right of privacy,” do judges then just draw on their personal moral judgment in deciding cases? And if they do, can they be wrong in doing so, or is the legal system actually designed to give them that discretion?
Dworkin objected to the idea that he attributed to Hart that law is all about rules. As discussed in our last episode, H.L.A. Hart said that law consists of primary rules for citizens’ behavior and secondary rules that describe how primary rules are to be enacted and enforced, with an underlying rule of recognition that ultimately determines what the law is for a given legal system.
Dworkin argued that this leaves out legal principles, which are of a different logical category than rules. Rules either apply or they don’t to a given situation. If you’ve discovered an exception to a rule, that just means that the rule, properly written, specifies that type of exception. So “do not kill except in self-defense or a war” is a rule with some exceptions written in. Two rules in the same legal system cannot conflict; if they do, then a judge may step in and invalidate one of the rules, or modify it to remove the conflict. Legal principles, however, do often conflict, and their force remains even if in a given circumstance, the principle is outweighed by other factors. So “do not create undue burdens in voting” is one legal principle and “make sure that voting is secure” is another. When the explicit guidance of the rules of law run out, then judges instead rely on these principles, which may or may not be explicitly articulated in laws on the books, but which are also not merely the moral opinions of the judges. This idea shows, according to Dworkin, that Hart was wrong in insisting on the independence of law from morality. Legal principles contain moral content (concepts like fairness) but yet are an indispensable part of law itself and how it is interpreted by judges. These principles, as not written explicitly in law, also aren’t necessarily traceable back to Hart’s rule of recognition. So Dworkin’s idea here amounts to a wholesale rejection of Hart’s theory of the foundations of law.
This was however, just the first move in this ongoing debate, and Dworkin wrote several more articles and books elaborating his critique of Hart and his alternative explanation of judging. The responses were largely not by Hart himself (though Hart wrote something that was published posthumously as the conclusion of the latest editions of The Concept of Law), but by his followers. Since we couldn’t read all of this, we read the Shapiro article as a secondary source to take us through the twists and turns of the debate. In addition to the initial critique that I just described, Shapiro lays out a later critique from Dworkin’s book Law’s Empire (1986) that focuses on the difference in judges’ decisions in hard cases as being theoretical disagreements about what law is. It’s like a judge is coming up with a legal theory that is supposed to cover as much existing law and precedent as possible (just like a scientist comes up with a theory that accommodates as much of the evidence and existing theory as possible), but in both of these cases, the data underdetermines the theory, and so judges (like scientists) can have honest disagreements. Just like science is the ongoing engagement of these disagreeing voices, so law essentially includes ongoing dialogue, as various judges navigate hard cases and argue for their theories of law over time.
Read “The Model of Rules” and the Shapiro article online. Most of us also at least started “Hard Cases,” which is ch. 4 of Dworkin’s Taking Rights Seriously (1977). Many of us also read an article that directly responded to Shapiro’s by Brian Leiter: “Explaining Theoretical Disagreement” (2009). Dworkin’s main example cases that we talk about is Riggs v. Palmer (1889). Watch the Jeffrey Kaplan video that introduced the Hart-Dworkin debate to us.
Though the view Dworkin criticized was well enough conveyed by the article we read for our last episode, the view is laid out in more detail in ch. 7, “Formalism and Rule-Skepticism,” of the book we read ch. 5 and 6 from, The Concept of Law. That volume in its current edition also includes an afterward wherein Hart some time between 1986 and his death in 1992 responded in detail to Dworkin’s critiques, but this proved too verbose and to on point for our purposes. (Hart mostly thought that Dworkin didn’t understand him.) Dworkin got the last word in a 2017 article, “Hart’s Posthumous Reply.”