Kyle Sutliff
Philosophy of Law
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A Positivist Response to Criticism
In Law’s Empire Ronald Dworkin puts forth a compelling criticism of H.L.A. Hart’s
theory of Legal Positivism. This criticism is based on the rigidity of Hart’s “Rule of
Recognition” and its inability to account for theoretical disagreements. In this paper I intend to
prove that though Dworkin’s argument is logically valid, a further analysis that expands his
conclusion, results in a contradiction. This is because such a rigid interpretation of the rule of
recognition eliminates not only the possibility of theoretical disagreements but also empirical
disagreements and the need for a rule of change. Since Hart’s theory provides for the possibility
of both, Dworkin’s criticism must be flawed.
The first two premises of Dworkin’s argument are simply definitions of terms. He claims
that a theoretical disagreement arises when legal officials “disagree about whether statute books
and judicial decisions exhaust the pertinent grounds of law.”(Dworkin 5) In other words
disagreement is not about historical facts of law but about whether these facts thoroughly
identify with a specific case. This distinction is important because Dworkin would have Hart
claim that such disagreements are non-existent; that for such cases that the historical facts are
insufficient to resolve a situation, the legal officials simply make new law. This claim is based on
Dworkin’s second premise which is a definition of a semantic theory.
Such a theory “suppose[s] that lawyers and judges use mainly the same criteria in
deciding when propositions of law are true or false; They suppose that lawyers actually agree
about the grounds of law.”(Dworkin 33) This is important because if legal officials use the same
criteria for deciding the grounds of law then they must agree when they are exhausted by
historical facts. What this does for Dworkin is prove that if a theory is semantic then it must deny
the existence of theoretical disagreements. As his third premise Dworkin proves the existence of
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Philosophy of Law
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theoretical disagreements through the example of real cases. This generates the conclusion that
semantic theories must be flawed, since they cannot account for reality.
The only step that remains is to prove that positivism is a semantic theory. To do this
Dworkin points to the rule of recognition. According to Hart the rule of recognition acts to
“specify 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 94) In this definition Dworkin takes the suggested rule to be the law or
proposition of law in question. The features such a proposition must possess, to affirm it as law,
become the grounds of law. Based on Dworkin’s definition, taking the grounds of law to be
“circumstances in which particular laws should be taken to be sound or true,”(Dworkin 110) this
interpretation of the rule of recognition is, at worst, plausible. It is remarkable how similar Hart’s
term “features” is to Dworkin’s “circumstances” and how “affirmative indication” matches
“taken to be sound” in meaning. Given this, Dworkin has proven legal positivism to be a
semantic theory and thus completing his argument disproving the validity of legal positivism.
So far, this argument seems to be, not only valid but perfectly sound. However, let us
follow Dworkin’s reasoning further and consider the validity of the resulting conclusions. The
main strength of the argument is its proving that the rigidity, caused by the assumption of mutual
agreement that is required for the rule of recognition to function, cannot account for reality.
Keeping that in mind, consider a case in which a previous decision was overturned as being
unconstitutional. If we thought that all legal officials agreed upon the grounds of law when
making the first ruling how is it that they could then rule in an opposite direction at a later time?
This question highlights the problem of how law ever changes in a semantic theory.
Based on the current definition of a semantic theory it is impossible to ever change or eliminate
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Philosophy of Law
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law. This inability exists because the assumption of the mutual knowledge and common sense
required for mutual agreement, on the grounds of law, creates a requirement for a sudden
unanimous revelation of circumstance in order to change current law. Imagine a society in which
all members possessed almost identical knowledge and thought in the same rational
manner(shared common sense). What would it take for this society to change its mind on a rule
that was unanimously agreed upon? It seems like nothing short of a revelation of previously
unattainable information would suffice. It is completely implausible, for it to be true, that for
every overturned legal proposition a sudden, unexpected change in circumstance appeared to the
shock and awe of all legal officials.
This would seem to be another problem for the positivist, except for the blaring
contradiction created by the existence of the rule of change. Hart defines this rule as “that which
empowers an individual or body of persons to introduce new primary rules…and to eliminate old
rules.”(Hart 95) It would seem odd, given the information we have already divined from
Dworkin’s argument, that Hart would bother to define such a rule. Yet, within his theory Hart
identifies not only the existence, but necessity, of such a rule as a counter to the problem of a
static legislature. Since we have already shown the impossibility of meeting the circumstances
required to eliminate a law, the existence of the rule of change is a contradiction amidst our
argument. Since this contradiction is the result of an expansion of Dworkin’s argument it implies
the existence of a flaw inherent within.
Dworkin can respond to this implication in two ways. The first way would be to attack
the premise stating that positivism doesn’t allow for legal change. This approach would be
ineffective in that to adequately attack the premise Dworkin would have to dispute the rigidity of
the rule of recognition, an assumption upon which his initial argument is dependent. The second
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option available to Dworkin would be to continue to promote the rigidity inherent in the rule of
recognition and claim that the existence of an elimination function within the rule of change is a
mistake. This argument is reminiscent of his portrayal of the standard positivist defense to his
argument. Dworkin portrays the first positivist response to his original argument as a denial of
the existence of theoretical disagreements. He disproves this denial through showing us
examples in which legal officials believe they are interpreting existing law. We can also
demonstrate examples of judges overturning law and of Hart explaining this ability in the rule of
change. Dworkin could attempt to deny the existence to a further extent by trying to prove Hart
as mistaken, confused or even communicating on a different level than us, but this type of
argument would be subject to his own counterargument of the semantic sting.
Dworkin eliminated any defense he could make to the claim that elimination actually
exists, within the rule of change, when he presented arguments to defend his claim that
theoretical disagreements actually exist. He also cannot deny the rigidity of the rule of
recognition because this premise is one upon which his argument is dependent. Therefore since
this rigidity creates a contradiction within Hart’s theory, Dworkin’s argument must be flawed.
This is true despite its original appearance as sound because the extrapolation of his premises
have led to a contradiction. Overall Dworkin’s argument does require us to consider the
existence of theoretical disagreements and how Hart could address them, but due to this flaw, it
does not provide us with a good reason to abandon legal positivism.
Kyle Sutliff
Philosophy of Law
Bibliography
Dworkin, Ronald. Law's Empire. Cambridge, MA: Belknap, 1986. Print.
Hart, H. L. A. The Concept of Law. Oxford: Oxford UP, 1997. Print.
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