Hart & Dworkin Essay Example for Free

Hart Dworkin EssayH. L. A. Harts concept of legal positivism was heavily influenced by Austin. However, he breaks with Austinian positivism at three vital junctures. First, he believed that the sovereign right giver is defined by his office rather than being a person who has secured the clothing of obedience. encourage authority is vested in rule of recognition instead of through the threat sanctions. Finally, Hart believed that laws expand familiarity rather than limit it. In a nutshell Harts Philosophy of honor builds upon the Command Law Theory established by Austin, corrects its errors and establishes its own doctrines. In his essay Sovereign and Subject, Hart proposed that the enjoyment of obedience does not account for the relationship between 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. Howeve r, since the habit of obedience is a habit plunk for by threats, it differs little from the idea a gunman coercing a person to give him his purse.Hart opines that a laws effectuality does not depend on the existence of social rules. Instead laws exist to promote social order. Hart contributes his conceptual analysis opening 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 much choose between alternatives. Simply put, Hart takes legal thought beyond the simplistic Command Theory.To him a law mint be valid despite its moral invalidity and sans any coercion backed by threats. Such views on the law can be seen today in the USA patriot Act. This is morally reprehensible because of the many provisions that potentially violate citizens rights. However it is still a valid law promoting the security of A merican society at large. As a legal naturalist Ronald Dworkin rejects positivism. His pass objection is that moral principles can be binding by virtue of the fact that they express an get hold of dimension of justice and fairness.He espouses the belief that in interpreting the meaning of valid legal rules, it is a good deal necessary to consult 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 redden if they are not identified under the rule of recognition. Moral principles can also be express to be law because they have dimensions of justice.As opposed to Hart, Dworkins theory on jurisprudence is that settle appeal to binding legal standards that are more discretionary than hard and fast rules. An example is the gravamen of guiltiness beyond reasonable doubt. Instea d 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 naive realism that laws must appeal to morality to have legal validity. Many of todays penal laws can be said to espouse Legal Naturalism.