A defence of Dworkin's arguments against Hartian legal positivism

Abstract

Dworkin’s critique against the dominant Hartian position in general jurisprudence has no doubt been greatly influential ever since its appearance. Dworkin’s critique aims mainly at Hart’s separation thesis, namely the thesis that legal reasoning is completely cut off from any moral considerations. Dworkin contends that Hart’s legal positivism fails to accurately capture the complexity of legal reasoning, and argues that legal officials should interpret legal matters in light of moral considerations. Despite their considerable strength, Dworkin’s arguments have generated serious pushback from defenders of Hartian legal positivism. In this paper, I seek to defend Dworkin’s critique from contemporary defenders of Hartian legal positivism. In the first half of the paper, I will explicate Hart’s position in detail, alongside some of his key philosophical assumptions. Next, I will explicate two of Dworkin’s essential arguments against Hartian legal positivism. In the second half of the paper, I will present contemporary counterarguments against Dworkin and argue that these counterarguments presuppose certain axiological and linguistic assumptions that are ultimately faulty. Consequently, I conclude that contemporary counterarguments, in fact, fail to undermine Dworkin’s thesis that legal and moral reasoning are necessarily intertwined.