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| Professor Schauer’s review of Professor Lacey’s recent biography of H.L.A. Hart ignores the personal issues in Hart’s life on which other reviewers have focused to offer some highly interesting comments on the state of jurisprudence in Anglophone law schools. He suggests, first, that though Hart benefited the subject by making it more philosophical, one unfortunate consequence of that shift is the impoverishment of the empirical side of jurisprudence; second, that jurisprudence since Hart has been dominated by adjudication, in which he had little interest, at the expense of Hart’s most important insight; and, third, that an important difference exists between the normative arguments that Hart’s earliest arguments deployed and the purely descriptive and analytic arguments he later came to favor.
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| Schauer exaggerates the extent to which most courses in jurisprudence have become courses in technical philosophy and also the extent to which Hart is responsible for such philosophical character as the subject now has. While philosophy is certainly prominent, the ordinary language philosophy that Hart practiced appears less often than political and moral philosophy and technical philosophy of language. Moreover, empirical social science is thoroughly represented not only in jurisprudence classes, but throughout the legal curriculum. Any absence of social science from legal theory can hardly be the consequence of Hart’s choosing, more than four decades ago, to write about particular issues that he thought were conceptual, not empirical.
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| Hart’s Concept of Law is now mistakenly read, Schauer says, as a theory about how judges should decide cases, and that it “would be difficult to overestimate” my own responsibility for that misreading, one result of which is that Hart’s insight that law is a system comprising primary rules and secondary rules has been unjustly neglected.
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| Schauer distinguishes between theories of adjudication — how judges should decide cases — and theories of the very nature of law which, he supposes, is a different matter. We must take care to distinguish two questions, both of which might be described as questions about the nature of law. The first is sociological: what makes a particular structure of governance a legal system rather than some other form of social control? The second is doctrinal: what makes a statement of what the law requires true? The sociological question has very little to do with adjudication; the doctrinal question, if not answered skeptically, has everything to do with it. Schauer thinks that Hart’s book is an answer to the sociological question, and therefore that it is only marginally concerned with adjudication. However, Hart offered interconnected answers to both questions, and his answer to the doctrinal question is more original and much more important.
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| The practical importance of the doctrinal question is obvious. Judges and other political officials justify decisions of great consequence by citing propositions of law — say, that a certain act constitutes a breach of contract. It obviously matters very much whether any such proposition is true, and therefore what test should be used in determining its truth.
Hart’s distinctive contribution was his claim that in paradigmatic legal systems secondary rules have the force of law only through convention. This claim is as much doctrinal as sociological, and is also the whole point of his complex argument about primary and secondary rules. It is therefore a serious misunderstanding to say that Hart has no genuine theory of adjudication. His theory of validity, the heart of his book, is a theory of adjudication.
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In his Postscript, Hart mistakenly said that our projects could not conflict because he aimed to describe how lawyers reason about law, whereas I offer a normative account of legal reasoning. In representing his theory as entirely descriptive, Hart turned his back on his earlier, correct insight that, as Lacey notes,
there was a strong moral case for espousing the inclusive positivist conception of law according to which even morally unappealing standards may count as fully valid legal rules.
An adequate answer to the crucial doctrinal question, about the truth conditions of propositions of law, must be grounded in the theorist’s own moral or political convictions. Political philosophy, rather than Hart’s ordinary language philosophy, is central to the analysis and understanding of the doctrinal concept of law.
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Suggested citation: Ronald Dworkin, Hart and the Concepts of Law, 119 Harv. L. Rev. F. 95 (2006), http://www.harvardlawreview.org/forum/issues/119/jan06/dworkin.pdf
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