The Hypothesis Presented by Hart: the Process of Legislation - Essay Example

The concept of law of institute] [Philosophy What exactly is Dworkin’s ground for thinking that legal systems can lack rules of recognition that are jointly accepted by officials? In order to develop an understanding regarding the objections raised by Dworkin on the legal theory presented by Hart, it is first and foremost important to shed light upon the salient features of the legal theory that has been presented by Hart himself. In his famous work known as the Concept of Law, Hart accentuates upon a couple of key factors related to the concepts that are applied during the process of legislation. He talks about a rule of recognition upon the basis of which the process of legislation gets initiated by selected officials. In addition to this the hypothesis presented by Hart provides clear cut distinction between laws and morality. However it is important for us to shed some light for the understanding of rule of recognition which according to Hart is a master-meta rule that defines and underlies the foundation of the legal system and for any rule to enjoy the position of being denoted a law, it is important that it passes and clears the rule of recognition as it would provide that rule with the proper validity and authenticity of being a law. This can further be explained with the help of the following quotation: “...to say that a given rule is valid is to recognize it as passing all the tests provided by the rule of recognition and so as a rule of the system. We can indeed simply say that the statement that a particular rule is valid means that it satisfies all the criteria provided by the rule of recognition”(Rosa, 2008) Once we have developed an understanding regarding the perspective Hart had regarding the process of law making and legislation, it is now important that we also shift our attention towards the opposition and counter arguments that have been presented by Dworkin. A key argument and opposition that was raised by Dworkin against the rule of recognition hypothesis of Hart is through the rejection and marginalization of a master rule as theoretically presented by Hart as the benchmark which determines the validity of any rule and its subsequent graduation and transition into law. Dworkin rejects these conceptions primarily on the grounds that since the process of labeling any rule or law as being valid is dependent upon the officials nominated, the probability of the validation process getting contaminated and corrupted due to controversies increases substantially. A crucial reason for the emergence of these controversies according to Dworkin is the fact that since the task of law validation is conducted by normal people who under every condition also have the responsibility of safeguarding their political agenda that they adhere to, and hence accompanied with so many other miscellaneous tasks it is not possible for them to conduct this task effectively. In addition to Dworkin also presents his argument on the rule of recognition by saying that in many legal cases in which the rule of recognition is openly applied, there are many disputes and controversies that can arise even when a correct legal outcome is anticipated. Hence it is important to understand here that Dworkin while presenting his reservations about the rule of recognition also makes the inherent human instinct of difference of opinion and freedom of expression as a valid claim and ground in refuting the rule of recognition. Along with these reasons there are also some other grounds on the basis of which the reservations of Dworkin can be explained. These reservations are fundamentally based on the differentiation between law and morality. It is important to mention here that many laws that form the basis of any legal system in a country are first validated and authenticated by the rules and salient features of morality. It is on the basis of these morality and ethical grounds which form the first tier of fundamental rules and laws that constitute the law making process in any state. Hence the claim made by Hart that law and morality are completely different things can easily be refuted and has been debunked in the counter argumentative writings one can obtainthrough the writing of Dworkin. Another key objection that emerges from the very same context is related to some other reservations that can easily be raised about the rule of recognition in this context. One can easily understand that all rules and laws, irrespective of their distinction are whenever filtered on moral grounds makes most sense since on the basis of morality it intends to provide people the fundamental right and protection for the purpose of which laws and pre-dominantly legislated. In addition to this one can also find overwhelming consensus also among officials belonging to different origins on a certain rule only if it is being discussed on the basis and salient features of morality. Hence Dworkin’s reservation regarding the fact that the point upon which the rule of recognition can most easily be accepted and can be implemented upon the majority has been termed as two separate entities and forms by Hart. 1. Couldn’t Hart revise his official theory (given in his chapter 6) about when a legal system exists or prevails in a community in light of what he himself says about international law in chapter 10? (In other words, couldn’t he revise his account of when legal systems exist so that it incorporates the view that legal systems may exist even in the absence of jointly-accepted rules of recognition?) What would the new theory look like? Wouldn’t the new theory be quite plausible and also handily deflect Dworkin’s criticism outlined above? Explain. In my opinion I feel it is quite possible that Hart can easily revise his theory and not only should he consider revising his theory, instead it is mandatory that such alterations should be made in his theory. There are a couple of reasons for this. First and most important being that the kind of perspective and outlook Hart has provided with the theory he currently advocates has become self-contradictory and highly skeptical in terms of its credibility. This lack of credibility in the theory comprehensibly manifests itself when Hart talks about the rules of recognition as the way in which they are applied to local as well as on international law making standards. Secondly, as we have observed Hart seems to be a staunch antagonist of morality and morals intervening in affairs that are related to law making. (Rosa, 2008) However it is a generally accepted and acknowledged fact that countries and states all over the world when initiate the task of law making and designing their constitutional framework provide foremost attention and concentration to fundamental ethics and principles of morality, hence in order to further add to the plausibility that Hart theory lacks at present it is important that these changes must be incorporated in his theory as soon as possible. As a result of these changes the theory would become when incorporated with these changes would become more generic in nature and its scope of application would subsequently increase. Furthermore it is also important to mention here that since many countries and states of the world are democratic in terms of the political system and ideology that they adhere to, it automatically implies that the scope and universal nature of the rule of recognition becomes null and void since the system of democracy is based upon the foundation of difference of opinion and voicing concerns against the legislation that has been presented in law making bodies of any country. In order to further prevent criticism that has been made by people like Dworkin on the theory presented by Hart it is important that the concept of rule of recognition which has been pioneered by Hart is further explained and elaborated in an effective manner so that the limitations, applications and objections to this rule of recognition can easily be understood among his other contemporaries and also among common people. References Rosa, Leonard, “On the possibility of periodization of Dworkins criticism of legal positivism”, Linkages Newsletter {2008}: accessed October 15, 2011, http://www.law.yale.edu/documents/pdf/sela/Newsletter_Proof_final.pdf Read More