Hart The Concept of Law, Ch. 7 and Postscript:

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  • Sometimes cases are indeterminate i.e. the law is “open textured” (hard cases). Obviously there must be discretion in such cases because “we are men, not gods” and therefore cannot determine the outcome perfectly in uncertain cases. All legal systems have a tension between the need for certainty and the need to leave the law open whether for fairness or for future development. The courts have a “role producing function” in uncertain cases. Rule scepticism is therefore valid in hard cases (Dworkin reject this).
  • Hart refutes (in postscript) the semantic sting argument deployed by Dworkin. He says that he never suggested all judges had one conception of what law is, merely that they share a belief in what criteria need to be fulfilled for it to be applied. He never claimed that the RoR is used to say what a law “is”.
  • Hart also says that his theory is capable of incorporating moral criteria or principles within the rule of recognition, so that he is NOT a “plain fact positivist” as Dworkin claims (For objections to Hart’s soft positivism concessions see Raz week 2 reading).
  • Hart denies that his positivism = what Dworkin terms conventionalism. Conventionalism’s point according to Dworkin is to justify coercion, whereas Hart does not claim this. Hart says that coercion is used when the law’s primary methods (promulgation of laws etc) breaks down, so that he certainly does not consider the law’s aim.
  • Hart rejects Dworkin’s claim that soft positivism is inconsistent with the positivist aim to provide certain, value-free criteria for identifying law (Dworkin is right here- see Raz week 2 notes). Hart says positivism is not minded to maintain absolute certainty but can make concessions, so that the courts can make an informed decision in hard cases.
  • Hart says the difference between rules and principles is not so profound- it is a matter of degree of conclusiveness. In Riggs v Palmer, which Dworkin often cites (man murdering his grandfather to get the will) a principle (that a man shouldn’t profit from his own wrongdoing) overcame contradictory statutory rules on wills, demonstrating how the distinction between rules and principles is not so sharp as Dworkin claims. Thus principles can be legally binding if recognised as such by RoR and Hart concedes that he was wrong not to consider principles initially. Thus he goes on to make a half-concession: That laws can include moral standards but do not have to in order to be valid.
  • Most importantly, Hart denies that positivists like himself set out to show law in its best light. They seek to provide general information about social institutions and to explain how claims concerning validity, obligations, rights, etc figure within such institutions. We need, Hart maintains, a clear understanding of these matters as a precursor to evaluative theories.
  • In fact, he says, we can make propositions about the function of law without committing ourselves as to whether these are valuable functions. Arguments for positivism are backed up by professional practice – lawyers can convey information about law without apparently committing themselves on questions of political morality – they may even describe the laws of past, foreign or unjust legal systems.