University of Kansas, Spring 2005
Philosophy 674: Philosophy of Law

In-class writing: natural-law theory and legal positivism
(correct answer and comments)

What is the main difference, or what are the main differences, between Dworkin’s natural-law theory and Hart’s legal positivism?

Please write your answer below the following line, after writing your name here: ___________________________

As before, please fold your paper along the following line, with the following line on the outside of the fold, not the inside.

So that was the assignment. Here is a perfectly fine answer:

The main difference between Hart and Dworkin has to do with their views on the question of whether the law includes moral principles—ones that it takes moral judgment to arrive at—in addition to positive law (such as laws passed by the legislature, or rules established by the judiciary). Hart says no. He says that, once you have identified a political community’s positive law, then you have identified its law. Dworkin says yes. He says that a political community’s law includes not only its positive law, but also the best (morally best) moral principles that fit that positive law. (Moral principles fit a political community’s positive law when they are consistent with it and justify or rationalize it.)

Some people wrote this or something close to it, but there were also some misunderstandings evident in the answers that were turned in. Here are some questions and answers addressing some of these points:

Q1.    Doesn’t Dworkin say that the judge should check each law against the correct moral principles, in order to tell whether it is valid? Isn't that what his criterion of “fit” is about?

A1.    No, it’s the other way around: The judge, when deciding what moral principles are part of the law, must first see which moral principles fit with the positive laws of that political community. It would be nice if a political community’s positive laws fit with the best moral principles, but if they don’t, then the best moral principles aren’t part of that community’s positive law; rather, some not-quite-best ones are. (This was a very common mistake on this assignment.)

Q2.    But doesn’t Dworkin think that if a positive law is unjust, then it’s invalid?

A2.    No—at least, not if ‘invalid’ means ‘legally invalid’. Of course Dworkin, or anyone, might think that an unjust law is morally invalid; if that just means immoral, then that would seem to follow from the law’s being unjust. But Dworkin joins the positivists in rejecting the traditional natural-law claim (associated with Aquinas most of all) that an unjust law isn’t really a genuine law. A law can be unjust and still be a valid law.

Q3.    Given that Hart is a legal positivist rather than a natural-law theorist, does that mean that he believes that morality is made by humans rather than existing independently of them, as Dworkin believes?

A3.    No, Hart’s being a legal positivist does not mean this. It just means that, whatever his views about the origins or status of morality may be, he does not believe that moral principles are part of the law of any political community.

Q4.    Both Hart and Dworkin recognize that legal systems contain what Hart calls primary rules. Only Hart, though, gives a prominent place to the idea of secondary rules, while Dworkin gives a prominent place to moral principles. Do secondary rules play the role in Hart’s theory that moral principles play in Dworkin’s theory?

A4.    No. Secondary rules—rules of recognition, change, and enforcement—can be accommodated in Dworkin’s system as easily as in Hart’s, without interfering with the inclusion, in Dworkin’s conception of law, of moral principles. It’s just that Dworkin, being less concerned to trace out the precise contours of positive law, has less need to delve into the specifics of such things as secondary rules. But since Hart thinks that positive law is all the law there is, he is more interested in being thorough in his account of positive law, and specifically discussing the various kinds of rules contained in the positive law of a typical political community.