The “Hart-Dworkin” Debate: Critical Capacity for Russian Legal Theory

Abstract

This article is devoted to an analysis of the early arguments within the Anglo-American philosophical and legal discussion, known in the academic literature as the “Hart-Dworkin” debate. The key theses attributed by R. Dworkin to the legal positivism of H. Hart and his proponents are examined: the pedigree thesis, the discretion thesis, the obligation thesis and the separability thesis. R. Dworkin’s criticism of these theses, on the basis of legal positivists’ undervaluing of the role of legal principles, as well as the capacity of these arguments for reconsideration of the key assumptions of mainstream Russian legal theory, is characterized. The central statements of the exclusive (hard) and inclusive (soft) legal positivism as two strategies of reaction to R. Dworkin’s critique are analysed. The separability thesis is discussed through the framework of J. Coleman’s distinction between positive and negative versions of the positivist legal theory. The conclusion that the nature of the nexus between moral and legal norms has not been properly problematised in contemporary Russian legal theory and that the arguments in the Hart-Dworkin debate have critical capacity to challenge dogmatism on this issue is justified.