Continuing from part one on Roland Dworkin’s “The Model of Rules” (1967) and Scott J. Shapiro’s “The ‘Hart-Dworkin’ Debate: A Short Guide for the Perplexed” (2007), plus some of Dworkin’s “Hard Cases” (1977).
We go through some responses by Hartians to Dworkin’s initial attack, revisiting the issue of whether judges can employ moral considerations when making decisions, or whether as the logical positivists seem to claim that legality and morality must be separate. Can Hart’s theory incorporate morality by saying “judges are required when facing a hard case to consult their society’s morality”?
Another case Dworkin brings up to argue that judges in hard cases are engaged in theoretical disagreement is Tennessee Valley Authority v. Hill. Wes brings up by comparison to figuring out lawmakers’ intent our past episode on authorial intent.