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The Hart/Dworkin Debate!

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by

Cara Howells

on 21 February 2013

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Transcript of The Hart/Dworkin Debate!

A lot of what Dworkin said has no reference in Hart's book
General and descriptive intentions
Positivism as interpretation
'Plain fact' positivism DEFENDING HART'S POSITION: Concedes on principles, wished he went into more depth
Rule of recognition in conjunction with principles
Creation from a recognised authoritative source HART ON PRINCIPLES: What is the Hart/Dworkin debate about? A presentation by Alice Webb, Cara Howells and Chris Wysling Introduction Jeremy Bentham & John Austin Ronald Dworkin H.L.A Hart The Debate! Beyond the Hart & Dworkin debate!
(Brian Leiter) Dworkin's Response Conclusion! Dworkin Hart's Response BENTHAM:
Represents the classical school of English legal positivism
The 'Luther of Jurisprudence'
Natural law is "Nonsense on stilts" AUSTIN:
Benthams disciple
3 basic points to theory;
1) Law is a command issued by the Sovereign;
2) Such commands are backed by threats of sanction and;
3) A Sovereign is one who is 'habitually obeyed' Nucleus = the existence of fundamental rules, accepted by officials as stipulating procedures by which the law is enacted.
Law is a system of rules
Divided into moral and Legal rules, with Legal rules further divided into Primary and Secondary rules
Internal/external POV
Internal aspect distinguishes between 'a rule and a mere habit' Positivism most significant critic!
Law and morals are completely intertwined
'Law contains a solution to almost every problem'
Legal Positivists cannot explain hard cases
RIGGS V PALMER 1899, decision reveals that in addition to rules, law also includes principles: The pioneers of legal positivism; Bentham & Austin
Modern legal positivist; Hart
Legal positivists greatest critic; Dworkin
The Hart/Dworkin debate
Dworkins response to Hart's Postscript
Beyond Hart and Dworkin
Conclusion Intro to the debate: Model of rules, Law's Empire, Taking Rights Seriously
Hart's Postscript
Dworkin's initial rejection DWORKIN ON RULES: Protection of rights and the individual
'Non-rule standards'
'Hard cases'
RIGGS V PALMER
HENNINGSEN V BLOOMFIELD MOTORS INC HART'S RULES: DWORKIN ON DISCRETION: Hart's position -'a necessary evil'
Dworkin's weak discretion
Principles DWORKIN'S PRINCIPLES: Rule of recognition
Legality of Principles
Pedigree Thesis NORMATIVE V CONSTRUCTIVE: Rejection of 'analytical' and 'normative' jurisprudence
"Constructive Interpretation"
"Law as Integrity"
Judge Hercules Practice theory of rules
'All or nothing' refute
Penumbra of uncertainty
RIGGS V PALMER HART'S DISCRETION: Cases that need to be decided either way (interstitial cases)
Judges as conscientious legislators
Necessary cost Finds Hart guilty of 'Archimedeanism' Oxford Journal of Legal Studies, Vol.24, No.1 (2004) pp 1-37 Question: Does the Hart/Dworkin debate deserve to play the same organising rule in the jurisprudential curriculum in the 21st Century?
He felt as though Hart had won the debate It has been 50 years since Hart first published his book 'A Concept of Law'
The last shot fired was Hart's incomplete work and since Dworkin has sadly passed away, the possibility of further debate from either iconic gentleman will now be posthumously honored.
Therefore, following Brian Leiter's work, we as a group have asked ourselves whether the debate is still relevant in the 21st Century
Full transcript