Ronald Dworkin Criticism of Legal Positivism in “The Model of Rules”

Ronald Dworkin Criticism of Legal Positivism in “The Model of Rules”

For more than five decades, Anglo-American Legal Philosophy has been preoccupied
with the so-called Hart-Dworkin debate. In his seminal work “The Model of Rules”, Dworkin
(1967) presented his critique of legal positivism, arguing that H.L.A Hart’s legal positivism
theory had failed to consider the role of moral factors in determining law contents. The main
contention in the debate has always been the legal validity, or what Dworkin refers to as grounds
of law -that is, what is criteria does a norm has to fulfil to satisfy that is legally binding
(Hershovitz, 2015) . Over the years, the debate has given rise to vigorous metadebate. While the
debate has generated significant metadebate, it is not in the interest of the paper to analyze the
metadebate. In this essay, the interest of the writer is the original criticism of positivism by
Dworkin (1967) presented in the “Model of Rules.” The paper’s premise is that Dworkin
criticism is well-founded and presents a better approach to the concept of legality relative to
Hart’s theory.
The Three Theses
Dworkin (1967) begins by outlining the three theses that he believes underpins Hart’s
legal positivism. First, a community’s law is based on a specific criterion for determining how
the law is developed or adopted rather than the content of the law. The first theses can be termed
as a pedigree proposition, in which Dworkin provides a composite claim of what legal positivists
believe. The initial part of the claim is that there is a master rule for determining whether a
particular norm is a law or a non-law – that is, laws have a social pedigree or the way they are
adopted. The process of adopting those rules is what differentiates spurious legal rules from valid
legal rules. In the second these, Dworkin (1967) contends that legal positivism premises that
such valid legal rules are exhaustive, in that they cannot be applied to cases where such laws

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cannot exhaustively resolve the issue. In such situations, a person with legal power will use their
discretion to determine the best approach to develop a new law that either supplements the
existing laws or form a new standard.
The third thesis, according to Dworkin (1967), is that legal obligation, according to legal
positivism, arises if a case falls within a valid legal rule that requires him to take a specific
action. The third thesis represents then the obligation thesis, which means that only legal rules
can create legal obligations. If existing rules are inapplicable to a case, then there is no legal
obligation, and judges must look beyond existing laws for an answer. Dworkin (1967) contends
that these principles may differ from one positivist to another. He argues that Hart’s represents
the best target for criticism since his theory is more advanced than other theories. The theory is
highly developed as it distinguishes primary laws from secondary laws. According to Dworkin
(1967), Hart theory opines primitive communities only possess primary rules since such
communities accept some practices as acceptable. On the other hand, secondary rules arise when
there is a recognition of a rule, which requires one to trace the process through which the rule
underwent to become a valid legal rule.
Fallacy of Judicial Discretion and Pedigree Thesis
Dworkin (1967) begins by arguing legal positivism should be considered a “model of and
for a system of rules” and thus should be rejected. In his argument against legal positivism,
Dworkin (1967) contends that while the discretion thesis held by legal positivists holds that the
judge is at discretion valid legal laws, there is none that is actually not true. He presents the case
of Henningsen v. Bloomfield, where the court had to decide on whether manufacturers could
waive liability. However, there was no clear legal precedent that the court could follow to
determine the case. In the case, the court ruled against the defendant, arguing that motor vehicle

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manufacturers had a special obligation related to the production and promotion of their products.
These moral obligations were more significant than contrary principles, and thus the court could
not reinforce the contract, which waived liability obligations. For Dworkin (1967), the case, like
other cases, does not show that judges at discretion to develop new valid legal precedents, rather
it shows that they are bound by legal principles that determine how they solve cases, where there
are no legal