Hart & Dworkin Essay

H. L. A. Harts concept of jural positivism was heavily influenced by Austin. However, he breaks with Austinian positivism at three vital junctures. First, he believed that the sovereign truth kick the bucketr is define by his office rather than being a person who has secured the habit of obedience. Second authority is vested in rule of recognition instead of through the threat sanctions. Finally, Hart believed that legal philosophys expand liberty rather than constrain it. In a nutshell Harts Philosophy of fair play builds upon the Command Law Theory ceremonious by Austin, corrects its errors and establishes its own doctrines.In his essay Sovereign and Subject, Hart proposed that the habit of obedience does non account for the relationship betwixt subject and sovereign. This inclination to, or habit of obedience, propounded by Austin, asserts that there exists a relationship between a subject and his sovereign. Where this relationship exists we speak of a society. However, since the habit of obedience is a habit backed by threats, it differs little from the idea a gunman coercing a person to give him his purse.Hart opines that a laws validity does non depend on the existence of friendly rules. Instead laws exist to promote loving order. Hart contributes his conceptual analysis theory to jurisprudence of legal formalism. He postulates that jurisprudence aims to give analysis of the uses to which the concept of law is put in various social practices. Given that all rules have a penumbra of uncertainty, a judge must often choose between alternatives. Simply put, Hart takes legal thought beyond the simplistic Command Theory.To him a law rout out be valid despite its deterrent example invalidity and sans any coercion backed by threats. such(prenominal) views on the law can be seen today in the USA Patriot Act. This is morally distressing because of the many provisions that potentially violate citizens rights. However it is still a valid law promoting the auspices of American society at large. As a legal naturalist Ronald Dworkin rejects positivism. His chief objection is that moral principles can be backrest by virtue of the fact that they express an appropriate dimension of referee and fairness.He espouses the belief that in interpreting the meaning of valid legal rules, it is often necessary to concern moral principles. Curiously, a posthumous edition of Harts seminal A Concept of Law gives space to Harts response to Dworkins criticism of Legal Positivism. In contrast to Hart, Dworkin believes that law is not simply a matter of rules. Moral principles are law even if they are not identified under the rule of recognition. Moral principles can also be tell to be law because they have dimensions of justice.As opposed to Hart, Dworkins theory on jurisprudence is that judges aggregation to binding legal standards that are more discretionary than hard and fast rules. An example is the gravamen of guilt beyond commonsense dou bt. Instead of simply relying on their discretion, a judge uses jurisprudence to form a body of as yet unwritten legal standards to back up their decisions. To summarize, Dworkin champions the cause of Legal Naturalism that laws must appeal to morality to have legal validity. Many of todays penal laws can be said to espouse Legal Naturalism.