Course talk:Law312d

1) Given Dworkin's impassioned introduction that this debate is necessary, I find it odd that he never actually gives any reason why this is so. Instead, he ends his article with more questions and a waving of hands that his theory offers more hope at answering these questions than Hart's theory. Am I missing something, or are we still left to wonder what the point is?

2) In Dworkin's article "The Model of Rules", what is Dworkin putting forward to address the defiency in Hart's theory?

3) Can you please clarify Dworkin's argument explaining why the positivist's rule of recognition does not adequately capture principles?

4) Hart says the "sharpest direct conflict" between his theory and Dworkin's has to do with judicial discretion: Hart says in 'penumbral' cases judges make law, Dworkin says judges never have to go outside law (they can look to the 'implicit legal principles' of law to determine an answer) - p.272. If the RoR of a given system included certain moral principles (as Hart says it may), and if those moral principles were objectively discernible and orderly (Hart's theory is explicitly agnostic about this), would the difference between Hart and Dworkin disappear here?

5) In the second Dworkin piece, I understand the conclusion of the first section regarding social rules and the implications of those conclusions, but I'm having trouble tracking how he gets there. Could we follow that argument closer in class?

6) Does Dworkin's argument on page 862, paras 1-2 of the second article succeed? It seems to underlie many of his arguments

7) In Hart's reply to Dworkin, it seems as if Dworkin writes (in Law's Empire) that there is a right answer to penumbral cases? Is there any reason to think this? To what extent does Dworkin's argument depend on it?

8) Does Dworkin's distinction between law in its pre-interpretive sense and 'interpretive law' make him less of a natural law theorist - i.e., he no longer holds the position that there is a necessary connection between law and morality?

9) Is Dworkin's argument for law as interpretation a necessary feature of law? Does it provide a better picture of what the law is than Hart?

And finally: Why can't all of these theorists write as clearly as Dworkin does?