Dworkin's Main Criticisms of Hart's Theory

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Dworkin’s Main Criticisms of Hart’s Theory

The concept of law is an important philosophical subject in legal jurisprudence that has provoked debate in previous years, especially between Hart and Dworkin’s . Hart's theory was contained in the Book, the Concept of Law that provided a general and normative description that explained the notion of law. Herbert L.A Hart is famous for his legal philosophy that sought to define the concept of law. He redefined jurisprudence and established a line of inquiry in philosophy regarding the concept of law. Dworkin’s criticisms of Hart’s arguments have a focus on the doctrine of judicial discretion and the separation of morality and the law.

Hart’s position as a rule based approach that included the emphasis on the different perspectives both internally and externally as well as the distinction between secondary and primary rules. Hart argued that primary rules are rules that impose certain duties to individuals while secondary rules are rules that confer power . For example, the most important secondary rule is the rule of recognition that sets out criteria that can be used to identify laws within the legal system. The two major claims in Hart's arguments were the law comes only into existence through the recognized social sources. This is known as the sources thesis. The second contingent claim, known as the separation thesis established that there is not a necessary connection between morality and the law . Through this concept of rules, Hart suggests that, in situations where there are no legal rules that regulate cases, judges have the discretion to make rules or the law to apply in such situation and similar ones that may arise in the future.

Dworkin’s argument seemed to advance what H...

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...gland: Ashgate, 2010).

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Leiter, B. "Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence." The American Journal of Jurisprudence 48, no. 1 (2003) PL 17.

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