Critique He depicts that Hart in his theory believed


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.1

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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.2
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

Dworkin insists that if a judge
uses his discretion to decide a case then he is not using the legal rules.3 Critics have argued that this
creates a situation where judges may have uncontrolled discretion to which
Dworkin responds by arguing that there is no such thing as uncontrolled
discretion in judicial decision making. He gives an example of a sergeant who
is ordered to select five men to go on patrol. The sergeant in this case has
discretion but it is limited. Dworkin believes that judicial disputes do not
occur in a vacuum and that there are particular standards that bind a
particular decision. He finds that there are limits that can be placed in
adjudicating hard cases, such boundaries can be derived from the moral and
political realm.4

In order to understand the right
answer thesis Dworkin discusses Hercules. Hercules is a judge who is wise and
patient, ideally, a perfect judge. According to Dworkin, the judge Hercules
will always come down to one conclusion when presented by a case, this is the
right answer for the case. He argues that despite the facts of the case and how
hard a case is, there is only one right answer to a case.

One of the most important things
to note, is that judges are not perfect. Judges just like all other human
beings have inclinations and attitudes and thus the ‘right answer’ may not be
the right one for the regular judge. Dworkin responds by asserting that judges
already have experience and a lot of knowledge in their areas of adjudication. This
means that judges obviously know “instinctively which interpretation of a small
set of cases”5.One
of the problem of the right answer thesis is that because of the vast knowledge
and experience of Hercules he may` end up coming up with many right answers to
one question.







1 L.
B. Curzon, Jurisprudnce, Routledge-Cavendish,
Psychology Press, 2002

2 Raz,
‘Legal Principles and the Limits of Law’
Yale Law Journal 81 (1972),823.

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

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

on Monday 15 January 2018.