Critique that judges are not bound by law in


Dworkin characterizes a kind of
American legal thought which furthers a radical approach to the examination of
law and its place in society. In his texts, Taking Rights Seriously (1978) and
Law’s Empire (1986), he rejects natural law as well as the legal positivism associated
specifically with Hart. He argues that one cannot reduce the concept of a legal
system solely to patterns of rules but must include principles and policies.

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Dworkin in many ways attempts to
explain Harts theory. He depicts that Hart in his theory believed that judges
are not bound by law in the adjudication of hard cases. This then raises the
question, if the law is sufficient enough as law then how can a judge run out
of rules to employ? Dworkin asserted that Hart did not believe that the principles
that judges use to adjudicate hard cases form part of law.1
Dworkin sees positivism as an argument for the concept of law as a mere system
of rules and specifically states,

want to make a general attack on positivism and I shall use H. L. A Hart’s
version as a target…. My strategy will be organized around the fact that when
lawyers reason or dispute about legal rights and obligations, particularly I hard
cases when our problems with these concepts seem most acute, they make use of
standards that do not function as rules, but operate differently as principles,
policies, and other sorts of standards. Positivism, I shall argue, is a model
of and a system of rules, and its central notion of a single fundamental test
for law forces us to miss the important roles of those standards that are not

Hart in his analysis of judicial
function avers that rules will be clear in majority of cases but will at some
point become ambiguous or have some kind of defect because of what he refers to
as ‘open texture’, a flaw inherent in any use of language. Dworkin responds and
argues that legal positivism cannot be used to justify judicial behavior in
hard cases. According to Dworkin, the judge does not revert to policy and
formulate law but rather applies legal principles and adjudicates based on the
law. Dworkin insists that if a judge uses his discretion to decide a case then
he is not using the legal rules.2 Critics have argued that this
creates a situation where judges may have uncontrolled discretion to which
Dworkin responds by stating that

1 Raz, ‘Legal Principles and the Limits of Law’ Yale Law Journal 81

John W.Van Doren ‘Theories of Professors
H.L.A.Hart and Ronald Dworkin-A Critique, Cleveland State Law