H.L.A. Hart vs. Ronald Dworkin Regarding Legislating Morality

For this essay, I will compare and contrast Ronald Dworkin’s and H. L. A. Hart’s theories of law. I will begin by summarizing Hart’s theory, and then I will proceed to a summary of Dworkin’s theory. I will focus specifically on how each philosopher addresses the place of morality in the legal system. Next, I will compare and contrast some main points which resonate throughout the theories. Some main points I would like to compare and contrast are: (1) the role of society in the place of morality in law, and (2) the role of the judge in the place of morality in law, and (3) the justification and validation of the legal enforcement of morality.

In “Law, Liberty, and Morality,” Hart distinguishes between the use of the moderate or the extreme thesis to justify morality in law. The moderate thesis asserts “a shared morality is the cement of society; without it there would be aggregates of individuals but no society” (266). The moderate thesis asserts a shared morality has instrumental value in binding a society together and any action which goes against the shared morality, even if it is done privately so that it doesn’t directly harm anyone, is still contrary to the shared morality so it threatens the existence of society (266-267). The moderate thesis requires empirical evidence showing harm is done to society in order to validate the legal enforcement of a particular act of immorality; the act can’t be simply claimed to be harmful (267). The extreme thesis asserts “the enforcement of morality is regarded as a thing of value, even if immoral acts harm no one directly, or indirectly by weakening the moral cement of society” (266). The extreme thesis asserts morality has intrinsic value and should be upheld simply because it is moral.

Hart asserts “It is of course clear (and one of the oldest insights of political theory) that society could not exist without a morality which mirrored and supplemented the law’s proscription of conduct injurious to others” (267). He asserts the proposition that “some shared morality is essential to the existence of any society” is an “acceptable proposition” (ibid). Such a proposition could be accepted as a necessary truth, meaning true in itself without recourse to empirical observation, based on the definition of society “as a body of men who hold certain moral views in common” (ibid). However, the problem with the extreme thesis is that it necessarily implies a society is equivalent in all respects to its morality the destruction of the morality by the performance of private acts contrary to the morality, is the same thing as saying the entire society has been destroyed (ibid). Hart states “But even if conventional morality did so change, the society in question would not have been destroyed or ‘subverted’” (ibid). Hart continues, “We should compare such a development not to the violent overthrow of government but to a peaceful constitutional change in its form, consistent not only with the preservation of a society but with its advance” (ibid).

Hart is a legal positivist and as such he ascribes to the Separability Thesis which asserts law and morality are two distinctly different concepts and one does not necessarily entail nor require the other (Himma, online). Per Hart, the Separability Thesis asserts “that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have done so” (ibid). The Social Fact Thesis is another tenant of legal positivism and asserts laws acquire their validity from “certain social facts” (ibid). Hart asserts societies with advanced legal systems not only espouse “primary rules” which “regulate” criminal actions and “confer […] rights and obligations,” but also secondary “meta-rules” which dictate the processes involved in establishing and maintaining primary rules (ibid). The “rule of recognition” is a secondary meta-rule which “specif[ies] 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” (ibid). Even though morality and law are separate and just happen at times to coincide, Hart further asserts “the rule of recognition may incorporate as criteria of legal validity conformity with moral principles or substantive values” (ibid). In line with the Social Fact Thesis, per Hart, the validity of moral principles must be established by “rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behavior by its officials” (ibid). Hart, it seems, would support the moderate thesis to justify the enforcement of morality. Even though morality and law are distinct and separate concepts, a principle of morality can be incorporated into the legal system because it is validated by the common public adoption of the principle, which would serve to bind the society together. An immoral act can be made illegal if there evidence showing it is harmful to the unity of society. Conversely, it could be argued that Dworkin seems to support a version of the extreme thesis to justify morality in law.

In “Law as Integrity,” Dworkin asserts, descriptively, “Law is an interpretive concept” (135). Further, Dworkin asserts, “Law’s empire is defined by attitude, not territory or power or process” (137). Law’s attitude is interpretative, but being interpretative it is significantly multifaceted, with the attributes, among others, of being self-reflective, protestant, and constructive (ibid). Law, being self-reflective, means law is political in that it requires reflection upon the nature of the “political structure of [the] community” (ibid; Himma, online). In being protestant, law places responsibility on the citizen to reflect on “what his society’s public commitments to principle are, and what these commitments require in new circumstances” (137). Law, being constructive, means “it aims, in the interpretive spirit, to lay principle over practice to show the best route to a better future, keeping the right faith with the past” (ibid).

Dworkin asserts, normatively, judicial decisions should be reached “by interpreting the political structure of their community” “by trying to find the best justification they can find, in principles of political morality, for the structure as a whole, from the most profound constitutional rules and arrangements of the details” (Himma, online). Per Dworkin, the integrity of law is based in the adjudication and application of law in concert with interpretive and constructive principles. Dworkin states “According to law as integrity, propositions of law are true if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the law” (130). A judicial ruling must decide “whether legal practice is seen in a better light if we assume the community has accepted the principle” in question (130-131). Judges should look to the historical principles of law only to justify the principles “in an overall story worth telling now,” a story which affirms “that present practice can be organized by and justified in principles sufficiently attractive to provide an honorable future” (131). Dworkin established “two elements of a successful interpretation” regarding a legal issue (Himma, online). The first element requires that the interpretation of any legal issue must “fit” and “cohere” “with existing legal” principles regarding the issue (ibid). Second, the interpretation “must present” the principles “in the best possible moral light” (ibid). Both elements provide justification, including “moral justification” for the society’s principles (ibid).

Dworkin analogously offers the example of a chain novel to demonstrate his concept of law being interpretative and constructive. Dworkin’s example demonstrates how judges must thoughtfully consider what has been written before them, and then apply their own interpretations of the text based on layers of societal, political, and legal meaning and context (132). Judges must adjudicate constructively in order to continue the story of law in a way that fits and coheres with the principles of the past, present and optimism for the future with the goal of making the story the best it can be for society (ibid). For Dworkin, adjudication is both interpretative and constructive in that it considers the principles of the society, including political, social, and legal principles, and then forms a ruling based on what will “fit” and “cohere” with the principles, which thus provides “moral justification” for the principles by presenting the principles in the “best possible moral light” (Himma, online). Dworkin’s theory makes the judge a part of the whole of society, acting as a caretaker through thoughtful interpretation and then constructive application of principles reflecting of the society’s interests. In this way, the judge is not outside the realm of the citizenry, passing down rulings from obscure legal texts unreflective of social input, but instead deeply involved in the continuum of social discourse which reflects the principles of the society as a whole.

Hart and Dworkin both assert there is a role for society in determining the place of morality in law. Hart asserts a shared morality is necessary for the existence of society in that it helps bind the society and supplements the law’s enforcement of acts which may harm others. Social changes in morality can advance society. Such moral changes in society can act as rules of recognition, affirming the morality of the act in question is adopted by and compatible with the principles of the society. Hart seems to have a place for morality in law if it coheres with the social facts of the matter, meaning, if it coheres with the society’s adoption of the morality of the issue and evidence shows the immorality of the issue threatens the unity of society. Dworkin also has a place for society in determining the place of morality in law in that he asserts law requires citizens to be responsible for reflecting on the demands of public principles and the changes to such demands when society changes. The public principles entail social, political, and legal principles, which a society adopts. If a society adopts a principle, then the law must interpret and construct future decisions in ways which fit and cohere with the principle.

Both Hart and Dworkin assert society has a role in the adoption of principles, which then can become law. Hart, however, sees morality as being applied to law via the rule of recognition. For Hart, it seems, morality and law are distinctly separate, and as such, morality can only be applied to law through a rule which affirms the utility of morality for the greater good as law. Morality in law, for Hart, is justified and validated through the rule of recognition by the common public adoption of the moral principle and its utility in binding the society together. The role of the judge in such a case would be to not apply morality, but instead to apply the rule of recognition, i.e. morality affirmed as legal, and utility when deciding a case.

Dworkin, however, does not seem to think this rule is necessary (Himma, online). Dworkin asserts “if we treat principles as law we must reject the positivists’ first tenet, that the law of a community is distinguished from other social standards by some test in the form of a master rule” (ibid). Dworkin seems to assert morality and law are necessarily intertwined, and as such law must fit and cohere with the principles, including the moral principles, of society. For Dworkin, morality in law is justified and validated because it guides judicial decision making toward the best possible continuation of the law based on what is held as principles within society.

For Hart and Dworkin, society’s moral principles are paramount in determining morality’s place in law. However, for Hart, morality in law is due to utility, while for Dworkin, morality in law is due to necessity. Therefore, the judge’s role in Hart’s view would be to decide cases based on a rule of recognition in which the issue of morality has been previously legally validated and is of instrumental value, a tool of utility. Conversely, in Dworkin’s view, judges would use the intrinsic value of the principles of morality to guide their interpretation and construction of law.

Works Cited

Dworkin, Ronald A. “Law as Integrity.” In Philosophical Problems in the Law, by David M. Adams, 129-137. Boston: Wadsworth Cengage Learning, 2013.

Hart, H. L. A. “Law, Liberty, Morality.” In Philosophical Problems in the Law, 5th Ed., by David M. Adams, 266-268. Boston: Wadsworth Cengage Learning, 2013.

Himma, Kenneth Einar. “Legal Positivism.” Internet Encyclopedia of Philosophy. June 28, 2005. http://www.iep.utm.edu/legalpos/ (accessed November 2, 2012).

—. “Philosophy of Law.” Internet Encyclopedia of Philosophy. April 19, 2009. http://www.iep.utm.edu/law-phil/ (accessed November 2, 2012).

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