Harts Postscript Dworkin's Early Work Essay

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Both of these perspectives are, from Hart's perspective, too extreme: he wants a legal theory which would be free from moral evaluations or moral commitments (unlike Finnis' approach), while remaining a descriptive theory of the practice rather than a participation in it (unlike Dworkin's approach). Hart was trying to keep a difficult middle position (Hacker, 1977-page 31). He argued that a legal theory should be constructed around the perspective of someone who accepted the legal system, but the theory itself (or, to put the matter differently, the theorist herself) need not, and should not, endorse the system (as one which is generally just or which creates binding moral obligations). In other words, the theory simultaneously:

(1) attempts to take into account the participant's perspective; and (2) manages to choose among possible participants' perspectives without having to make moral judgments; while

(3) keeping sufficient distance from the participants' perspective to allow for moral criticism of the whole system / enterprise (Perry, 1995-page 52).

The danger is of Hart's position sliding towards an Austin-like command theory, on one side, and a position closer to Finnis' or Dworkin's, on the other (Hacker, 1977-page 14). To put the matter a different way, the question is how to take seriously the need to accept the perspective of a participant in a practice while still maintaining a sufficient distance to be able to criticise the practice (and the participants) (Raz, 1979-page 17). In social theory (or perhaps, more accurately, "social sciences meta-theory"), this has led to an ongoing debate regarding whether an attempt to "explain each culture or society in its own terms ... rules out an account which shows them up as wrong, confused or deluded" (Ball, 1990-page 72). (One can say: if you claim to understand the perspective of the believing participant of a particular practice, but you think the practice is irrational and cruel, then you have not really understood or properly incorporated the perspective of the believer, because that is not how it looks to him or her (Twining, 1979-page 34). An additional complication, one whose implications are hard to tease out, is that in the social sciences one must consider the role of an internal point-of-view, both in the evaluation of data gathered and in the actual gathering of that data nor to evaluating it. This additional point is unclear in its implications because it ties into the debate on what it would mean to "gather evidence" (Cohen, 1984-page 18) for a general theory of law (and what kind of evidence one would want).

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Conclusion

Hart offers a contrast between possible types of legal theory, a contrast based on images. One type of theory is to be used "within" the legal system: for example, in telling a judge how to decide disputes. Another type of theory involves looking at the system "from the outside." Basing the argument on the images, one would say that a theory cannot be simultaneously part of the legal system and a description of the system from the outside. In some ways, this last argument is a strange one for Hart to have put forward, for one of the most significant aspects of Hart's approach to law was that it demanded that we look at the perspectives of citizens and officials within a legal system, the "internal point-of-view," in constructing a theory of law.

The main question for this exchange between Dworkin and Hart is how much we can rely on the images, on the metaphors, alone in evaluating or creating arguments. It does sound strange to say that a theory is simultaneously part of the system and the best explanation of the system. However, this type of argument, with all its hints of circularity, is actually relatively common in modern philosophy; examples include the hermeneutic circle in literary theory, and John Rawls' use of reflective equilibrium in moral and political theory.

To the extent that there is a true conflict between Dworkin and Hart, it is at those times when Dworkin states or implies that there is no room for a substantive, detailed and interesting descriptive theory of law (that is not interpretative). This struggle can be seen not only in Hart's insistence on the space for and need for a (non? interpretative) descriptive theory of law in general, but also in his disagreement with any attempt to recast legal positivism as being about justifying present or future coercion, and his claim that even if the "sense" of legal propositions in most or all legal systems is interpretative or evaluative, it does not follow that a descriptive theory of such matters need also be interpretative or evaluative.

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