The next issue concerns the rule of recognition. It's an essential feature of Hart's thesis that there must be rules but it follows that these must also be capable of being identified by a rule of recognition. However Dworkin holds that principles are not capable of being identified by a rule of recognition and so this doctrine must be abandoned. He asserts that principles are identified by a process of constructive interpretation. Hart relies on a notion that Dworkin had himself introduced, that of principles having pedigree, and claims that Dworkin is wrong to dismiss pedigree as a means by which principles can be identified.
He states the example that various principles of the common law can be traced up to the principle that a person should not be allowed to profit from his own wrong, a principle given authority by its approval by the courts. Following from this he argues that there are at least some legal principles which may be captured or identified as law by pedigree criteria provided by a rule of recognition, and thus concluding that Dworkin's criticism was wrong to say that principles and the rule of recognition are incompatible.
It seems the use of the notion of pedigree which Dworkin himself introduced helps weigh the argument down in the favour of Hart. As Hart himself also suggested, Dworkin's interpretative test for establishing the validly of principles is no more than the specific form that is taken in some legal systems by a conventional rule of recognition whose existence and authority rests on its acceptance by the courts18. Though Hart understands that this would be rejected by Dworkin for completely misrepresenting his notion of 'constructive interpretation', one cannot help but see the connection.
If principles are identified because they are member of a set of principles which justify the history of all the law in the legal system, then it follows that these set of principles are part of the history of all law and so principles can be traced up to an ultimate source which also has to be part of the history of all the law. The above shows that 'constructive interpretation' and pedigree and so the 'rule of recognition' are interlocutory, there is just the obvious difference between the two, the difference that one is based on a more specific level then the other.
It would be very interesting to see Dworkins reply to this. LAW AND MORALITY. Now we come to the final point of disagreement, the relationship between law and morality. Dworkin holds that there must be prima-facie moral grounds for assertions of the existence of legal rights and duties19, however Hart on the other hand claims that there are no necessary conceptual connections between the content of law and morality, because he claims 'morally iniquitous provisions may be valid as legal rules or principles.
This last point is true if one thinks in the sense that there are rights and duties that are the law irrespective of whether they are according to morality good or bad, for example racist laws in countries ordering for the genocide of minority groups ( Nazi Germany). This supports Hart's claims. But Hart cannot accept Dworkins view as it would mean taking away the foundations of the whole of his thesis as a positivist. However, it seems to me an assumption on Hart's part that morality means moral goodness.
Even if it does, there has to be a morally bad for a morally good to exist in the first instance and therefore morality has two extremes; morally good and morally bad. It is very possible that rights and duties in law be based on either of the two extremes of morality and so there can be a connection between the content of law and morality. It follows form this that something that is morally iniquitous can be valid law ( refer to nazi Germany example above).
Even though Hart at this point is right to think so here, his last related argument that morality and the content of law have no connections was wrong. Dworkin on the other hand here believes that law that is morally iniquitous is not valid law and so seems wrong especially in the face of such examples as the Nazi Germany one above. CONCLUSIONS. Hart's replies to Dworkins objections have followed logic on all occasions and so have been quite adequate, except on the last point of disagreement.
Hart's arguments were enough to show that Dworkin was wrong about the idea that something morally iniquitous was not valid law, but Hart's ideas as was shown were based on the wrong foundations. One could argue forever on the last disagreement upon law and morality, as it possible to see it from all view points. If one strongly believes and argues rationally and logically, then their claims can stand unshaken.If they do not then at one point or another they will be caught out and forced to reassess their claims.
Davies. H. , & Holcroft. D. , 'Jurisprudence', (1991), chapter 4. Hart. H. L. A. , 'The Concept of Law', (1994, 2nd ed. ), pp259-272. Riddall. J. G. , 'Jurisprudence', (Butterworths, London, 1991) 1Riddall. J. G. , 'Jurisprudence', (Butterworths, London, 1991), p. 25 2Hart. H. L. A. , 'The Concept of Law', (1994, 2nd ed. ), Postscript, p. 259