CritiqueDworkin characterizes a kind ofAmerican legal thought which furthers a radical approach to the examination oflaw and its place in society. In his texts, Taking Rights Seriously (1978) andLaw’s Empire (1986), he rejects natural law as well as the legal positivism associatedspecifically with Hart. He argues that one cannot reduce the concept of a legalsystem solely to patterns of rules but must include principles and policies.
Dworkin in many ways attempts toexplain Harts theory. He depicts that Hart in his theory believed that judgesare not bound by law in the adjudication of hard cases. This then raises thequestion, if the law is sufficient enough as law then how can a judge run outof rules to employ? Dworkin asserted that Hart did not believe that the principlesthat judges use to adjudicate hard cases form part of law.1Dworkin sees positivism as an argument for the concept of law as a mere systemof rules and specifically states,’Iwant to make a general attack on positivism and I shall use H. L.
A Hart’sversion as a target…. My strategy will be organized around the fact that whenlawyers reason or dispute about legal rights and obligations, particularly I hardcases when our problems with these concepts seem most acute, they make use ofstandards that do not function as rules, but operate differently as principles,policies, and other sorts of standards. Positivism, I shall argue, is a modelof and a system of rules, and its central notion of a single fundamental testfor law forces us to miss the important roles of those standards that are notrules.’ Hart in his analysis of judicialfunction avers that rules will be clear in majority of cases but will at somepoint become ambiguous or have some kind of defect because of what he refers toas ‘open texture’, a flaw inherent in any use of language.
Dworkin responds andargues that legal positivism cannot be used to justify judicial behavior inhard cases. According to Dworkin, the judge does not revert to policy andformulate law but rather applies legal principles and adjudicates based on thelaw. Dworkin insists that if a judge uses his discretion to decide a case thenhe is not using the legal rules.2 Critics have argued that thiscreates a situation where judges may have uncontrolled discretion to whichDworkin responds by stating that1 Raz, ‘Legal Principles and the Limits of Law’ Yale Law Journal 81(1972),823.2John W.Van Doren ‘Theories of ProfessorsH.L.A.Hart and Ronald Dworkin-A Critique, Cleveland State LawReview,1980,295.