Controversial Propositions of Law and the Positivist Embarrassment: The Hart/Dworkin Debate Reconsidered

• Author: Simeon C.R. McIntosh
• Profession: Professor Emeritus of Law at Howard University, Washington, DC
• Pages: 127-147

Controversial Propositions

of Law and the Positivist

Embarrassment: The Hart/

Dworkin Debate Reconsidered

Introduction

Section 2-302 of the United States’ Uniform Commercial Code is a

mandate to judges to refuse the enforcement of unconscionable clauses and

contracts.1 Section 2-302 stipulates a general standard of contract adjudication;

a moral standard – a standard of conscience.2 In his essay on unconscionability,

John Dawson suggests that 2-302 is a mandate to judges to innovate; to be

‘creative’ and make new law ascribed to an independent authority of their

own.3 The granting of such discretion, it is reasoned, is precisely the function

of general clauses. Indeed, it is difficult to imagine how a codified system of

law could function without such loopholes. Thus, according to Dawson, the

application of the doctrine of unconscionability permits resort to non-neutral

principles, in contradistinction to formally recognizable rules that impose

restraint on official arbitrariness and offer certainty as to outcomes.4 In fine,

the inevitable consequence of the application of 2-302 is that the courts must

exercise discretion and legislate.

This chapter, however, does not discuss the application of the doctrine of

unconscionability in specific cases. That topic has already been exhaustively

treated by many an able scholar.5 Instead, I respond to the conclusion of

Dawson and others6 and argue that the doctrine of unconscionability, though

a general clause, is not a mandate for judicial legislation, but that 2-302

allows for no greater judicial discretion than any less general section of the

code. The theory of judicial discretion is one argued for by the positivist

theory of law as formulated by Professor H.L.A. Hart,7 positivism’s leading

exponent. Against the positivist theory, Professor Ronald Dworkin asserts a

theory of interpretation in which the room for judicial discretion is infinitely

more circumscribed.8

Reading Text and Polity

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To view law as Hart has, in terms of rules regulating the behaviour

of people,9 is to ask that such rules be formulated in language susceptible

of purely literal and perfectly univocal meanings. Such an instrumentalist

conception of law argues for a high degree of specificity of what may or may

not be done. But his view, in my opinion, misses the propriety of hermeneutics

in the explanation and understanding of law, which as a normative system

essentially teleological is therefore an object of the hermeneutic enterprise.

Indeed, the existence of individual rules of law presupposes a system in which

there are agents responsible for the application of those rules; and application

entails understanding and interpretation. Thus, a rule of law must be viewed

not only as a directive to people as to what they may or may not do, but also

as a set of judicial standards by which human conduct is to be judged. Because

the inescapable phenomenon of application entails a test of the meaning of

the law in the context in which it is to be applied, one hazards the thought

that it is at the level of hermeneutical inquiry that the adequacy of any theory

of law might most appropriately be evaluated.

The Jurisprudential Setting

H.L.A. Hart and the Positivist Position: Law as a System of Rules

It is suggested that a most central feature of the positivist theory of law

is the view that law is constituted by a system of rules.10 For Austin, law was

constituted by rules promulgated by a sovereign to whom the society paid

habitual obedience, and backed by threats of sanctions.11 Although Austin

first conceived the basic tenet of positivism – that law is a system of rules – his

theory is subject to two fundamental criticisms.12 First, in modern society it

is difficult, if not impossible, to identify any group or individual possessing

the requisite control to qualify as Austin’s sovereign.13 Second, Austin found

authority only in the power and the will of the sovereign to harm those who

disobeyed his commands.14

Although Hart has not abandoned the notion of law as a system of rules,

he had delivered himself of a searching critique of the Austinian view. Hart

argues that only a limited set of laws (e.g. criminal laws) within a mature legal

system bears resemblance to Austin’s concept of law as sovereign commands

backed by threats.15 For Hart, there exist other laws designed to facilitate

the conduct of human affairs, such as laws regarding the making of wills or

contracts.16 Thus, in Hart’s system there are two categories of rules: primary

and secondary rules.17 Primary rules set out claims and obligations;18 secondary

rules create capacities that stipulate who may do what and the procedures to