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Legal positivism is a philosophy of law that emphasizes the conventional nature of lawthat it is socially constructed.
According to legal positivism, law is synonymous with positive norms, that is, norms made by the legislator or considered
as common law or case law. Formal criteria of laws origin, law enforcement and legal effectiveness are all sufficient for
social norms to be considered law. Legal positivism does not base law on divine commandments, reason, or human rights.
As an historical matter, positivism arose in opposition to classical natural law theory, according to which there are
necessary moral constraints on the content of law.
Legal positivism does not imply an ethical justification for the content of the law, nor a decision for or against the
obedience to law. Positivists do not judge laws by questions of justice or humanity, but merely by the ways in which the
laws have been created. This includes the view that judges make new law in deciding cases not falling clearly under a legal
rule. Practicing, deciding or tolerating certain practices of law can each be considered a way of creating law.
Within legal doctrine, legal positivism would be opposed to sociological jurisprudence and hermeneutics of law, which
study the concrete prevailing circumstances of statutory interpretation in society.
The word positivism was probably first used to draw attention to the idea that law is positive or posited, as opposed
to being natural in the sense of being derived from natural law or morality.
On Harts view, Austins emphasis on coercive force leads him to overlook the presence of a second kind of primary rule
that confers upon citizens the power to create, modify, and extinguish rights and obligations in other persons . As Hart
points out, the rules governing the creation of contracts and wills cannot plausibly be characterized as restrictions on
freedom that are backed by the threat of a sanction. These rules empower persons to structure their legal relations within
the coercive framework of the law-a feature that Hart correctly regards as one of laws greatest contributions to social
life. The operation of power-conferring primary rules, according to Hart, indicates the presence of a more sophisticated
system for regulating behavior.
But what ultimately distinguishes societies with full-blown systems of law from those with only rudimentary or primitive
forms of law is that the former have, in addition to first-order primary rules, secondary meta-rules that have as their
subject matter the primary rules themselves:
[Secondary rules] may all be said to be on a different level from the primary rules, for they are all about such rules; in the sense that
while primary rules are concerned with the actions that individuals must or must not do, these secondary rules are all concerned with
the primary rules themselves. They specify the way in which the primary rules may be conclusively ascertained, introduced, eliminated,
varied, and the fact of their violation conclusively determined (Hart 1994, p. 92).
Hart distinguishes three types of secondary rules that mark the transition from primitive forms of law to full-blown legal
systems: (1) the rule of recognition, which specif[ies] some feature or features possession of which by a suggested rule is
taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts
(Hart 1994, p. 92); (2) the rule of change, which enables a society to add, remove, and modify valid rules; and (3) the rule
of adjudication, which provides a mechanism for determining whether a valid rule has been violated. On Harts view, then,
every society with a full-blown legal system necessarily has a rule of recognition that articulates criteria for legal validity
that include provisions for making, changing and adjudicating law. Law is, to use Harts famous phrase, the union of
primary and secondary rules (Hart 1994, p. 107). Austin theory fails, on Harts view, because it fails to acknowledge the
importance of secondary rules in manufacturing legal validity.
Hart also finds fault with Austins view that legal obligation is essentially coercive. According to Hart, there is no
difference between the Austinian sovereign who governs by coercing behavior and the gunman who orders someone to
hand over her money. In both cases, the subject can plausibly be characterized as being obliged to comply with the
commands, but not as being duty-bound or obligated to do so (Hart 1994, p. 80). On Harts view, the application of
coercive force alone can never give rise to an obligation-legal or otherwise.
Legal rules are obligatory, according to Hart, because people accept them as standards that justify criticism and, in
extreme cases, punishment of deviations:
What is necessary is that there should be a critical reflective attitude to certain patterns of behavior as a common standard, and that this
should display itself in criticism (including self-criticism), demands for conformity, and in acknowledgements that such criticism and
demands are justified, all of which find their characteristic expression in the normative terminology of ought, must, and should, and
right and wrong (Hart 1994, p. 56).
The subject who reflectively accepts the rule as providing a standard that justifies criticism of deviations is said to take
the internal point of view towards it.
On Harts view, it would be too much to require that the bulk of the population accept the rule of recognition as the
ultimate criteria for legal validity: the reality of the situation is that a great proportion of ordinary citizens-perhaps a
majority-have no general conception of the legal structure or its criteria of validity (Hart 1994, p. 111). Instead, Hart
argues that what is necessary to the existence of a legal system is that the majority of officials take the internal point of
view towards the rule of recognition and its criteria of validity. All that is required of citizens is that they generally obey the
primary rules that are legally valid according to the rule of recognition.
Thus, on Harts view, there are two minimum conditions sufficient and necessary for the existence of a legal system: On
the one hand those rules of behavior which are valid according to the systems ultimate criteria of validity must be
generally obeyed, and, on the other hand, its rules of recognition specifying the criteria of legal validity and its rules of
change and adjudication must be effectively accepted as common public standards of official behavior by its officials
(Hart 1994, p. 113).
Harts view is vulnerable to the same criticism that he levels against Austin. Hart rejects Austins view because the
institutional application of coercive force can no more give rise to an obligation than can the application of coercive force
by a gunman. But the situation is no different if the gunman takes the internal point of view towards his authority to make
such a threat. Despite the gunmans belief that he is entitled to make the threat, the victim is obliged, but not obligated, to
comply with the gunmans orders. The gunmans behavior is no less coercive because he believes he is entitled to make the
threat.
Similarly, in the minimal legal system, only the officials of the legal system take the internal point of view towards the rule
of recognition that endows them with authority to make, execute, adjudicate, and enforce the rules. The mere presence of
a belief in the officials that they are entitled to make law cannot give rise to an obligation in other people to comply with
their enactments any more than the presence of a belief on the part of a gunman that he is entitled to issue orders gives
rise to an obligation in the victim to comply with those orders. Harts minimal legal system is no less coercive than
Austins legal system.
questions is unsettled. In deciding such cases courts inevitably break new (legal) ground and their decision develops the law.
Naturally, their decisions in such cases rely at least partly on moral and other extra-legal considerations (Raz 1979, pp. 49-50).
If the judge can resolve an issue involving the First Amendment merely by applying past court decisions, then the issue is
settled by the law; if not, then the issue is unsettled. Insofar as the judge looks to controversial moral standards to resolve
the issue, she is going beyond the law because the mere presence of controversy about the law implies that it is
indeterminate. Thus, on Razs view, references to moral language in the law, at most, direct judges to consider moral
requirements in resolving certain unsettled questions of law. They cannot incorporate moral requirements into the law.
On this view, a judge cannot decide a case that does not fall clearly under a valid rule by interpreting or applying the law;
she must decide the case by creating or promulgating a law that did not exist prior to the adjudication. Thus, the discretion
thesis implies that judges are empowered with a quasi-legislative lawmaking authority in cases that cannot be decided
merely by applying law.
Though often associated with positivism, the discretion thesis does not belong to positivisms theoretical core. The
pedigree and separability theses purport to be conceptual claims that are true of every possible legal system. These two
claims jointly assert that, in every possible legal system, propositions of law are valid in virtue of having been
manufactured according to some set of social conventions. On this view, there are no moral constraints on the content of
law that hold in every possible legal system.
But many positivists regard the discretion thesis as a contingent claim that is true of some, but not all, possible legal
systems. Hart, for example, believes there will inevitably arise cases that do not fall clearly under a rule, but concedes a
rule of recognition could deny judges discretion to make law in such cases by requiring judges to disclaim jurisdiction or
to refer the points not regulated by the existing law to the legislature to decide (Hart 1994, p. 272). Indeed, Harts
inclusive positivism allows him to hold that a rule of recognition could require judges to decide cases in precisely the
manner that Dworkin advocates (Hart 1994, p. 263; and see Section IV-2, infra). Thus, at least for inclusive positivists like
Hart, the discretion thesis makes a different kind of claim than the conceptual claims that form positivisms theoretical
core (Himma 1999).
Moreover, the discretion thesis is consistent with some forms of natural law theory. According to Blackstones classical
naturalism, conformity with the natural law is a necessary condition for legal validity in every possible legal system. But
insofar as the natural law is incomplete, there will inevitably arise issues that have multiple outcomes consistent with the
natural law. Since none of the relevant outcomes in such cases offend the natural law, there is nothing in the assumption
of necessary moral constraints on the content of law, in and of itself, that precludes Blackstone from endorsing the
discretion thesis in such cases. Of course, if Blackstone believes the natural law contains a principle denying discretion to
judges, then that commitment is inconsistent with the discretion thesis. But the assertion there are necessary constraints
on the content of law, in and of itself, is consistent with the discretion thesis, even construed as a conceptual claim, as long
as there are cases to which the natural law is indifferent.
In any event, Dworkin distinguishes three different senses in which a judge might be said to have discretion: (1) a judge
has discretion when she exercises judgment in applying a legal standard to a particular case; (2) a judge has discretion
when her decision is not subject to reversal by any other authority; and (3) a judge has discretion when her decision is not
bound by any legal standards.
According to Dworkin, positivisms discretion thesis is committed to the third sense of discretion, which he refers to as
strong discretion. On Dworkins view, the thesis that judges have discretion only in the sense that they exercise judgment
is trivially true, while the thesis that judges have discretion in the sense that their decisions are not subject to being
reversed by a higher authority is false. Even the Supreme Court can be reversed by Congress or by constitutional
amendment. Thus, on Dworkins view, the discretion thesis implies that judges have discretion to decide hard cases by
what amounts to an act of legislation because the judge is not bound by any legal standards.
Thus construed, the discretion thesis is inconsistent with ordinary legal practice. Even in the most difficult of cases where
there is no clearly applicable law, lawyers do not ask that the judge decide the relevant issue by making new law. Each
lawyer cites cases favorable to her clients position and argues that the judge is bound by those cases to decide in her
clients favor. As a practical matter, lawyers rarely, if ever, concede there are no legal standards governing a case and ask
the judge to legislate in the exercise of discretion.
Nevertheless, the problem with Dworkins analysis is that it falsely presupposes an official cannot make new law unless
there are no legal standards constraining the officials decision. Indeed, lawmaking authorities in legal systems like the
U.S. never have what Dworkin describes as strong discretion. Even the legislative decisions of Congress, the highest
legislative authority in the nation, are always constrained by constitutional standards. For example, under the Fourteenth
Amendment, Congress cannot enact a law that sets one speed limit for male drivers on interstate highways and another for
female drivers.
For his part, Hart concedes that judicial lawmaking authority is limited in two respects: not only are the judges powers
subject to many constraints narrowing his choice from which a legislature may be quite free, but since the judges powers
are exercised only to dispose of particular instant cases he cannot use these to introduce large-scale reforms or new codes
(Hart 1994, p. 273). What explains the judges discretion to make new law in a given case, on Harts view, is not the
absence of legal standards constraining her decision; rather it is the absence of legal standards that dictate a uniquely
correct answer to the case. The judge cannot decide such a case merely by applying existing law because there is more than
one available outcome that coheres with existing law. In such instances, it is impossible to render a substantive decision
(as opposed to simply referring the matter back to the legislature) without creating new law.
The discretion thesis is vulnerable to one powerful objection. Insofar as a judge decides a difficult case by making new law
in the exercise of discretion, the case is being decided on the basis of a law that did not exist at the time the dispute arose.
If, for example, a judge awards damages to a plaintiff by making new law in the exercise of discretion, it follows that she
has held the defendant liable under a law that did not exist at the time the dispute arose. And, as Dworkin points out, it
seems patently unfair to deprive a defendant of property for behavior that did not give rise to liability at the time the
behavior occurred.
Nevertheless, Dworkins view fares no better on this count. While Dworkin acknowledges the existence of difficult cases
that do not fall clearly under a rule, he believes they are not resolved by an exercise of judicial discretion. On Dworkins
view, there is always a right answer to such cases implicit in the pre-existing law. Of course, it sometimes takes a judge of
Herculean intellectual ability to discern what the right answer is, but it is always there to be found in pre-existing law.
Since the right answer to even hard legal disputes is always part of pre-existing law, Dworkin believes that a judge can take
property from a defendant in a hard case without unfairness (Dworkin 1977, pp. 87-130).
But if fairness precludes taking property from a defendant under a law that did not exist at the time of the relevant
behavior, it also precludes taking property from a defendant under a law that did not give reasonable notice that the
relevant behavior gives rise to liability. Due process and fundamental fairness require reasonable notice of which
behaviors give rise to liability. As long as Dworkin acknowledges the existence of cases so difficult that only the best of
judges can solve them, his theory is vulnerable to the same charge of unfairness that he levels at the discretion thesis.
(P4), for example, cannot guide behavior because people will not be able to determine what the rules require. Accordingly,
Fuller concludes that his eight principles are internal to law in the sense that they are built into the existence conditions
for law: A total failure in any one of these eight directions does not simply result in a bad system of law; it results in
something that is not properly called a legal system at all (Fuller 1964, p. 39).
These internal principles constitute a morality, according to Fuller, because law necessarily has positive moral value in two
respects: (1) law conduces to a state of social order and (2) does so by respecting human autonomy because
rules guide behavior. Since no system of rules can achieve these morally valuable objectives without minimally complying
with the principles of legality, it follows, on Fullers view, that they constitute a morality. Since these moral principles are
built into the existence conditions for law, they are internal and hence represent a conceptual connection between law and
morality that is inconsistent with the separability thesis.
Hart responds by denying Fullers claim that the principles of legality constitute an internal morality; on Harts view,
Fuller confuses the notions of morality and efficacy:
[T]he authors insistence on classifying these principles of legality as a morality is a source of confusion both for him and his
readers. [T]he crucial objection to the designation of these principles of good legal craftsmanship as morality, in spite of the
qualification inner, is that it perpetrates a confusion between two notions that it is vital to hold apart: the notions of purposive activity
and morality. Poisoning is no doubt a purposive activity, and reflections on its purpose may show that it has its internal principles.
(Avoid poisons however lethal if they cause the victim to vomit.) But to call these principles of the poisoners art the morality of
poisoning would simply blur the distinction between the notion of efficiency for a purpose and those final judgments about activities
and purposes with which morality in its various forms is concerned (Hart 1965, pp. 1285-86).
On Harts view, all actions, including virtuous acts like lawmaking and impermissible acts like poisoning, have their own
internal standards of efficacy. But insofar as such standards of efficacy conflict with morality, as they do in the case of
poisoning, it follows that they are distinct from moral standards. Thus, while Hart concedes that something like Fullers
eight principles are built into the existence conditions for law, he concludes that they do not constitute a conceptual
connection between law and morality.
Unfortunately, Harts response overlooks the fact that most of Fullers eight principles double as moral ideals of fairness.
For example, public promulgation in understandable terms may be a necessary condition for efficacy, but it is also a moral
ideal; it is morally objectionable for a state to enforce rules that have not been publicly promulgated in terms reasonably
calculated to give notice of what is required. Similarly, we take it for granted that it is wrong for a state to enact retroactive
rules, inconsistent rules, and rules that require what is impossible. Poisoning may have its internal standards of efficacy,
but such standards are distinguishable from the principles of legality in that they conflict with moral ideals.
Nevertheless, Fullers principles operate internally, not as moral ideals, but merely as principles of efficacy. As Fuller
would likely acknowledge, the existence of a legal system is consistent with considerable divergence from the principles of
legality. Legal standards, for example, are necessarily promulgated in general terms that inevitably give rise to problems of
vagueness. And officials all too often fail to administer the laws in a fair and even-handed manner-even in the best of legal
systems. These divergences may always be prima facie objectionable, but they are inconsistent with a legal system only
when they render a legal system incapable of performing its essential function of guiding behavior. Insofar as these
principles are built into the existence conditions for law, it is because they operate as efficacy conditions-and not because
they function as moral ideals.
Fullers jurisprudential legacy, however, should not be underestimated. While positivists have long acknowledged that
laws essential purpose is to guide behavior through rules (e.g., John Austin writes that [a] law .. may be defined as a rule
laid down for the guidance of an intelligent being by an intelligent being having power over him Austin 1977, p. 5), they
have not always appreciated the implications of this purpose. Fullers lasting contribution to the theory of law was to flesh
out these implications in the form of his principles of legality.
According to Dworkin, principles and rules differ in the kind of guidance they provide to judges:
Rules are applicable in an all-or-nothing fashion. If the facts a rule stipulates are given, then either the rule is valid, in which case the
answer it supplies must be accepted, or it is not, in which case it contributes nothing to the decision. But this is not the way principles
operate. [A principle] states a reason that argues in one direction, but does not necessitate a particular decision (Dworkin 1977, pp.
24-25).
On Dworkins view, conflicting principles provide competing reasons that must be weighed according to the importance of
the respective values they express. Thus, rules are distinguishable from principles in two related respects: (1) rules
necessitate, where principles only suggest, a particular outcome; and (2) principles have, where rules lack, the dimension
of weight.
Dworkin cites the case of Riggs v. Palmer as representative of how judges use principles to decide hard cases. In Riggs,
the court considered the question of whether a murderer could take under the will of his victim. At the time the case was
decided, neither the statutes nor the case law governing wills expressly prohibited a murderer from taking under his
victims will. Despite this, the court declined to award the defendant his gift under the will on the ground that it would be
wrong to allow him to profit from such a grievous wrong. On Dworkins view, the court decided the case by citing the
principle that no man may profit from his own wrong as a background standard against which to read the statute of wills
and in this way justified a new interpretation of that statute (Dworkin 1977, p. 29).
The positivist might respond that when the Riggs court considered this principle, it was reaching beyond the law to
extralegal standards in the exercise of judicial discretion. But Dworkin points out that the Riggsjudges would rightfully
have been criticized had they failed to consider this principle; if it were merely an extralegal standard, there would be no
rightful grounds to criticize a failure to consider it (Dworkin 1977, p. 35). Accordingly, Dworkin concludes that the best
explanation for the propriety of such criticism is that principles are part of the law.
Further, Dworkin maintains that the legal authority of standards like the Riggs principle cannot derive from promulgation
in accordance with purely formal requirements: [e]ven though principles draw support from the official acts of legal
institutions, they do not have a simple or direct enough connection with these acts to frame that connection in terms of
criteria specified by some ultimate master rule of recognition (Dworkin 1977, p. 41). Unlike legal rules, legal principles
lack a canonical form and hence cannot be explained by formal promulgation.
On Dworkins view, the legal authority of a binding principle derives from the contribution it makes to the best moral
justification for a societys legal practices considered as a whole. According to Dworkin, a legal principle maximally
contributes to such a justification if and only if it satisfies two conditions: (1) the principle coheres with existing legal
materials; and (2) the principle is the most morally attractive standard that satisfies (1). The correct legal principle is the
one that makes the law the moral best it can be. Thus, Dworkin concludes, if we treat principles as law we must reject the
positivists first tenet, that the law of a community is distinguished from other social standards by some test in the form of
a master rule (Dworkin 1977, p. 44).
In response, positivists concede that there are legal principles, but argue that their authority as law can be explained in
terms of the conventions contained in the rule of recognition:
Legal principles, like other laws, can be enacted or repealed by legislatures and administrative authorities. They can also become legally
binding through establishment by the courts. Many legal systems recognize that both rules and principles can be made into law or lose
their status as law through precedent (Raz 1972, p. 848).
According to this view, legal principles are like legal rules in that both derive their authority under the rule of recognition
from the official acts of courts and legislatures. If the Riggs principle that no person shall profit from her own wrong has
legal authority, it is because that principle was either declared by a court in the course of adjudicating a dispute or
formally promulgated by the appropriate legislative body.
Further, inclusive positivists argue that Dworkins account of principles is itself consistent with the pedigree thesis. As
Hart puts it, this interpretative test seems not to be an alternative to a criterion provided by a rule of recognition, but
only a complex soft-positivist form of such a criterion identifying principles by their content not by their pedigree (Hart
1994, p. 263). The idea, familiar from Section II, is that a rule of recognition can incorporate content-based constraints on
legal validity, even those rooted ultimately in morality.
If lawyers disagree about the criteria of legal validity, then the grounds of legal validity cannot be exhausted by the shared
criteria contained in a rule of recognition. The semantic sting, then, implies that there must be more to the concept of legal
validity than can be explained by promulgation in accordance with shared criteria embodied in a rule of recognition.
The semantic sting resembles one of Dworkins earlier criticisms of Harts pedigree thesis. Hart believes that the rule of
recognition is a social rule and is hence constituted by the conforming behavior of people who also accept the rule as a
ground for criticizing deviations. Like all social rules, then, the rule of recognition has an external and internal aspect. The
external aspect of the rule of recognition consists in general obedience to those rules satisfying its criteria of validity; the
internal aspect is constituted by its acceptance as a public standard of official behavior. Hart believes it is this double
aspect of the rule of recognition that accounts for its normativity and enables him to distinguish his theory from Austins
view of law as a system of coercive commands. For, as Hart points out, a purely coercive command can oblige, but never
obligate, a person to comply (see Section I, supra).
Dworkin argues that this feature of Harts theory commits him to the claim that there cannot be any disagreement about
the content of rule of recognition:
Harts qualification that the rule of recognition may be uncertain at particular points undermines [his theory]. If judges are in fact
divided about what they must do if a subsequent Parliament tries to repeal an entrenched rule, then it is not uncertain whether any
social rule [of recognition] governs that decision; on the contrary, it is certain that none does (Dworkin 1977, pp. 61-62).
On Dworkins view, the requirements of a social rule cannot be uncertain since a social rule is constituted by acceptance
and conforming behavior by most people in the relevant group: two people whose rules differ cannot be appealing to
the same social rule, and at least one of them cannot be appealing to any social rule at all (Dworkin 1977, p. 55).
Jules Coleman responds that if the rule of recognition is a social rule, then Harts view implies there must be general
agreement among the officials of a legal system about what standards constitute the rule of recognition, but it does not
imply there cannot be disagreement as to what those standards require in any given instance:
The controversy among judges does not arise over the content of the rule of recognition itself. It arises over which norms satisfy the
standards set forth in it. The divergence in behavior among officials as exemplified in their identifying different standards as legal ones
does not establish their failure to accept the same rule of recognition. On the contrary, judges accept the same truth conditions for
propositions of law. They disagree about which propositions satisfy those conditions (Coleman 1982, p. 156).
Coleman, then, distinguishes two kinds of disagreement practitioners can have about the rule of recognition: (1)
disagreement about what standards constitute the rule of recognition; and (2) disagreement about what propositions
satisfy those standards. On Colemans view, Harts analysis of social rules implies only that (1) is impossible.
Under the U.S. rule of recognition, for example, a federal statute is legally valid if and only if it has been enacted in
accordance with the procedural requirements described in the body of the Constitution and is consistent with the first
fourteen amendments. Since, on Harts view, the U.S. rule of recognition is a social rule, U.S. officials must agree on the
procedures the federal government must follow in enacting law, the set of sentences constituting the first fourteen
amendments, and the requirement that federal enactments be consistent with those amendments.
But Harts view of social rules does not imply there cannot be any disagreement about whether a given enactment is
consistent with the first fourteen amendments. Legal practitioners can and do disagree on what Hart calls penumbral (or
borderline) issues regarding the various amendments. While every competent practitioner in the U.S. would agree, for
example, that torturing a person to induce a confession violates the fifth amendment right against self-incrimination,
there is considerable disagreement about whether compelling a defendant to undergo a psychiatric examination for the
purpose of increasing her sentence also violates that right. On Colemans view, there is nothing in Harts analysis of social
rules that precludes such borderline disagreements about whether a practice is consistent with the Fifth Amendment.
Despite its resemblance to this earlier criticism, Dworkins semantic sting argument takes aim at a deeper target. The
semantic sting targets all so-called semantic theories of law that articulate the concept of law in terms of shared rules
that set out criteria that supply the words meaning (Dworkin 1986, p. 31). Thus, while the earlier criticism is directed at
Harts extraneous account of social rules, the semantic sting is directed at what Dworkin takes to be the very heart of
positivisms theoretical core, namely, the claim that there are shared criteria that exhaust the conditions for the correct
application of the concept of law.
At the root of the problem with semantic theories, on Dworkins view, is a flawed theory of what makes disagreement
possible. According to Dworkin, semantic theories mistakenly assume that meaningful disagreement is impossible unless
we all accept and follow the same criteria for deciding when our claims are sound, even if we cannot state exactly, as a
philosopher might hope to do, what these criteria are (Dworkin 1986, p. 45). On this flawed assumption, two people
whose concepts of law differ cannot be disagreeing about the same thing.
Perhaps with Colemans response to his earlier criticism in mind, Dworkin concedes that semantic theories are consistent
with theoretical disagreements about borderline or penumbral cases: people do sometimes speak at cross-purposes in the
way the borderline defense describes (Dworkin 1986, p. 41). But Dworkin denies semantic theories are consistent with
theoretical disagreement about pivotal (or core) cases. According to semantic theories, he says,
[Y]ou and I can sensibly discuss how many books I have on my shelf, for example, only if we both agree, at least roughly, about what a
book is. We can disagree over borderline cases: I may call something a slim book that you would call a pamphlet. But we cannot disagree
over what I called pivotal cases. If you do not count my copy of Moby-Dick as a book because in your view novels are not books, any
disagreement is bound to be senseless (Dworkin 1986, p. 45).
The problem, on Dworkins view, is that many difficult appellate cases like Riggs involve theoretical disagreement about
pivotal cases:
The various judges who argued about our sample cases did not think they were defending marginal or borderline claims. Their
disagreements about legislation and precedent were fundamental; their arguments showed that they disagreed not only about whether
Elmer should have his inheritance, but about why any legislative act, even traffic codes and rates of taxation, impose the rights and
obligations everyone agrees they do. They disagreed about what makes a proposition of law true not just at the margin but in the core
as well (Dworkin 1986, pp. 42-43).
On Dworkins view, the judges in Riggs were not having a borderline dispute about some accepted criterion for the
application of the concept of law. Rather, they were having a disagreement about the status of some putatively
fundamental criterion itself: the majority believed, while the dissent denied, that courts have power to modify
unambiguous legislative enactments.
Accordingly, theoretical disagreement about pivotal cases like Riggs is inconsistent with semantic theories of law, on
Dworkins view, because it shows that shared criteria do not exhaust the proper conditions for the application of the
concept of law. For the majority and dissenting judges in Riggs were having a sensible disagreement about law even
though it centered on a pivotal case involving the criteria of legal validity. Thus, Dworkin concludes, the concept of law
cannot be explained by so-called criterial semantics.
In response, Hart denies both that his theory is a semantic theory and that it assumes such an account of what makes
disagreement possible:
[N]othing in my book or in anything else I have written supports [a semantic account] of my theory. Thus, my doctrine that developed
municipal legal systems contain a rule of recognition specifying the criteria for the identification of the laws which courts have to apply
may be mistaken, but I nowhere base this doctrine on the mistaken idea that it is part of the meaning of the word law that there should
be such a rule of recognition in all legal systems, or on the even more mistaken idea that if the criteria for the identification of the
grounds of law were not uncontroversially fixed, law would mean different things to different people (Hart 1994, p. 246).
Instead, Hart argues that his theory of law is a descriptive account of the distinctive features of law in general as a
complex social phenomenon (Hart 1994, p. 246). Hart presents his theory, not as an account of how people apply the
concept of law, but rather as an account of what distinguishes systems of law from other systems of social rules. On Harts
view, it is the presence of a rule of recognition establishing criteria of validity that distinguishes law from other systems of
social rules. Thus, according to Hart, Dworkins criticism fails because it mischaracterizes positivism as providing a
criterial explanation of the concept of law.