In “Hard Cases― published in 1975 13, Dworkin renewed his attack on Hart.

The same war that

began in “The Model of Rules―9, waged on, but the weapons had changed. Previously Dworkin
had only claimed that morality in the form of principles bound judges to decide in a particular way. In
“Hard Cases―, Dworkin explores the notion of this binding morality further by introducing the
concept of the soundest theory of law and to demonstrate with greater precision the role played by
moral and political theory in its construction and application. But his conception of morality was vastly
different from that of the natural lawyers. According to Dworkin, what is morally required could be
discovered by finding out what best fits with the soundest theory of law; the soundest theory of law
being that which justifies all existing legal materials of a legal system, namely, the institutional history,
past laws and judicial decisions of a legal system. Dworkin points out that the institutional history (good,
bad or ugly), past laws (draconian or noble) and decisions (sound, monstrous or ridiculous) create a
unique morality of their own and a judge in a hard case cannot be unmindful of that and he has to
follow in the footsteps of the past for that is precisely what morality requires. Dworkin aimed to show
that law is indeed gapless and is hence a system of pre-existing entitlements in which judges are never
given to play the role of “deputy legislators―. His principal contention was his “Rights Thesis―
which said that judicial decisions in hard cases should be generated by principle, not policy. He insisted
that judges decide hard cases by either confirming or denying legal rights. Hence decisions in hard cases
are always declarations of antecedent legal rights.14 For Dworkin, in all cases there is no uncertainty
about what the law is but only in judges unearthing it. According to Dworkin, a hard case is one which is
not settled by a rule15 or the rules are subject to competing interpretations

A decision in a case which best fitted and cohered with the political morality, arising from past
institutional history was the real law. He says a principle is a part of the law and authoritative if it is part
of the theory that provides the best explanation and justification of the settled law. But how could one
discover what was the political morality and what best fits with it? What best fits with the whole of the
political morality, was something which even a dozen Cardozos would not profess to be able to crack, let
alone an ordinary common law judge. To crown it all, Dworkin claimed that in every case there was one
and only one unique right answer and it could be found. No doubt this was all a Herculean task. Thus
was born Hercules, Dworkin’s imaginary common law genius; a judge who alone could discover and
apply Dworkin’s theory of adjudication. One could reasonably say that no human judge could do
what Hercules was expected to do. Hercules was to first see all of the settled law. Then Hercules had to
ask himself what theory of law could weld all those decisions together. Then in each hard case, Hercules
had to apply that very theory. Hercules only interpreted the law. But law threw up its own answers. All
Hercules did was use his superhuman skills to find what that was, much like the Oracle at Delphi which
threw up answers but needed priests to be interpreters. No one could be sure if the priest or Hercules
was right or wrong. But Dworkin wanted us all to believe that there was one right answer and Hercules
would find it. But which side of the natural law-positivism divide does Dworkin stand on, one may
wonder. Confusing as it may sound, the answer to that is—neither side and both sides. Dworkin stands
on neither side because Dworkin is neither a legal positivist nor a natural lawyer as law for him derives
validity neither from sources nor merits. However, I also said he stands on both sides; in the natural
lawyer’s vein Dworkin disputes positivism’s sources thesis; for Dworkin, law is much more than
sources that positivists keep harping on. But Dworkin also disputes the natural lawyers insistence on
morality; the morality that Dworkin speaks of isn’t the same as the natural lawyers; Dworkinian
morality is morality arising from a positivist’s sources (which Dworkin calls the settled law). Thus for
Hercules, the enquiry about what is moral would begin with an analysis of the sources. Because of
peculiar philosophical commitment of Dworkin, J.L. Mackie termed Dworkin’s theory as the “third
theory― of law.