THESIS OF JUDICIAL DISCRETION IN THE DEBATE BETWEEN R. DWORKIN AND POSITIVISTS: ARGUMENTS OF THE ‘LATER’ H. HART

Abstract

Introduction: this article deals with Herbert Hart’s conception of judicial discretion, taken as an authoritative example of the theory of legal positivism in his debate with Ronald Dworkin. The article is of particular interest not only because it turns to the significant issues of legal proceedings as fundamentally conceptualized by the parties to the debate but also because it investigates the ‘later’ Hart’s doctrine of discretion, which is unexplored in Russian jurisprudence and presented in the foreign literature only in truncated form, leaving the author’s 1967–1980s works out of consideration. Purpose: reconstruction of the ‘later’ Hart’s arguments in favor of the positivist thesis of judicial discretion, evaluation of these arguments from the perspective of both development of the jurist’s views and the polemics between R. Dworkin and positivists. Results: the first section of the article presents H. Hart’s original 1961 doctrine as a starting point in the debate of R. Dworkin and positivists; the emphasis is placed on the opposition between the theses of legal indeterminacy and judicial discretion and the counter-theses of completeness of law and the single right answer. In the second section, H. Hart’s 1967–1994 contentions concerning judicial discretion related to R. Dworkin’s ideas are explicated. The third section provides over all reconstruction of the ‘later’ Hart’s doctrine, as well as its assessment in the perspective of the author’s 1961 and 1994 views and the polemic between R. Dworkin and positivists. Conclusions: in his 1967–1994 works, H. Hart follows in line with positivists’ argumentation in their debate with R. Dworkin, thus making a contribution to strengthening the potential of positivist theory. Despite his limited participation, the jurist monitors key points of the debate, trying to substantiate his basic conception of judicial discretion in the changed context. Its final updated version does not receive a full-fledged formulation from the ‘later’ Hart. However, it is clearly irreducible to the ideas of the ‘Postscript’ (1994), usually discussed in this capacity in Western literature: following a number of new arguments, consistent with his 1961 approach, Hart sets out important corrections / ways of development, associated with both departure from a purely linguistic model of legal indeterminacy and presumably problematic specificity of judicial discretion within the framework of moral identification of law, allowed by soft positivism.