Hart, Dworkin and the Nature of (South African) Legal Theory

The publication of HLA Hart's Postscript to The Concept of Law has reinvigorated a debate that dominated much of twentieth century jurisprudence. This article provides an overview and limited appraisal of Hart's Postscript, as well as a consideration of the implications of this debate for South African law. The first part of the article provides a brief account of Hart's positivism and Dworkin's early criticisms. Here we conclude that Hart gains the upper hand through his embrace of 'soft' positivism. Thereafter the article considers Dworkin's later criticisms of Hart's project, as expounded in Law's Empire. Here we suggest that Hart's central suggestion in the Postscript, that his project and Dworkin's can be reconciled, is unconvincing. More specifically, Hart does not adequately recognise the threat that Dworkin's 'semantic sting' argument poses to the 'rule of recognition'. The final part of the article discusses the continuing relevance of Dworkin's notion of constructive interpretation to South African law.