INTRODUCTION

Lord Denning once famously remarked, Jurisprudence was too abstract a subject for
my liking. All about ideologies, legal norms and basic norms, ought and is, realism
and behaviourism: and goodness knows what else I like to get down to the practical
problems which come up for decision (Denning 1985, p. 240). In this quote the
learned Law Lord lamented about the diversity of legal theories, each purporting to
offer the best conceptual explanation of law. His statement, however, neglects the rich
practical dimension of legal theories, which both describe and prescribe how law
functions in reality. This essay will focus on the practical utility of theories of law,
specifically with regard to judicial decisions, in keeping with a utilitarian position.
The first part of the essay discusses the content legal theories should include, while
the second part critically evaluates the Hartian, Dworkinian and economic approaches
to legal theory according to the criteria established in the first.

WHAT THEORIES OF LAW SHOULD EXPLAIN

In this first part, three tensions concerning the substantive content of legal theories
will be discussed descriptive versus prescriptive, general versus system-specific,
and conceptual versus practical.
Descriptive versus Prescriptive
A descriptive legal theory is one that seeks to answer the question of What is law?
without seeking to justify or commend on moral or other grounds the forms and
structures which appear in the theory (Hart 1994, p. 240). In comparison, a
prescriptive legal theory advances claims about what law ought to be. While there is
no inherent conflict between the two, the substance of a legal theory can incline it
towards either approach. Legal positivism, for instance, is characteristically
descriptive. John Austin, an important pioneer of legal positivism, explained a
fundamental tenet of positivism as such - The existence of law is one thing; its merit
and demerit another. Whether it be or be not is one enquiry; whether it be or be not
conformable to an assumed standard, is a different enquiry (Austin 1832, p. 158).
Since positivists understand law independently from its merits, they are more
concerned with describing law in terms of what it is (Schauer 2009) rather than
evaluating what it ought to be.
Purely descriptive legal theory, however, has been criticised by natural law theorists,
and rightly so. To John Finnis, a description of what law is should be made in light of
the purpose and value of law in order to be fruitful (Finnis 2000). This view is also
shared by Ronald Dworkin, who asserts that law has no DNA (Dworkin 2004, p.
22), and is thus not susceptible of description. Dworkin further argues that purely
descriptive theories of law are not possible because descriptions inevitably turn on the
respective interpretations of laws value; people are drawn to definitions that seem
most naturally to support their own substantive positions (Dworkin 2006, p. 148).
Therefore, theories that purport to be descriptive invariably contain value
judgements and cannot be said to be neutral or objective. Support for this position can
also be found in the Critical Legal Studies (CLS) movement, which rejects the
purported objectivity and neutrality of law on the basis that it marginalises groups of

people, such as the black race (Lawrence 1992). CLS focuses instead on the
prescriptive approach, proposing what ends law should pursue.
As argued, theories of law should not adopt a purely descriptive approach or make
claims to neutrality. That is not to say, however, that the descriptive approach is
entirely without merit. Description creates a foundation, a common understanding of
law, upon which prescriptive theories can then build (Shapiro 2010). Prescription, too,
is desirable because it inspires the law towards a better future. It is therefore accepted
that theories of law should explain both what law is, and what law ought to be.
General versus System-Specific
Some legal theorists explain law in general, as a universal notion (Aquinas 12651274). Others theorists reject the value of a general theory of law on the basis that it
would be at such a high level of generality that it would not tell us anything
interesting (Dworkin 1987). The premise behind the latter argument is that any
theory that purports to characterise a legal systems content must ensure that, for
every system, it specifies all and only those norms that belong to that system
(Shapiro 2009). Dworkins theory therefore applies to a single legal system (Dworkin
2006). Similarly, Lon Fullers theory applies only to Western societies which share
comparable legal systems. This approach, however, is less valuable because it is not
widely applicable.
An alternative happy medium, and the preferred approach, is to discuss law in
general, but without making claims that necessarily apply to all legal systems (Bix
2012). This prevents high levels of abstraction, and can account for key societal
aspects that affect the operation of law. As Frederick Schauer argues, it is often
valuable to discover, discuss, and emphasize the widespread and important aspects of
law, even if those characteristics are not strictly necessary (Schauer 2011). After all,
law is a complex discipline that interacts with many major elements of society like
morality and government. While there might not be a necessary relationship between
these elements and law, they should nonetheless be discussed within legal theories
because they often operate in tandem with the law in practice. As such, the approach
of discussing a general theory of law without the requirement that a theory of law
must describe the necessary conditions of law has more practical utility.
Conceptual versus Practical
Legal theories range from purely conceptual to predominantly practical. An example
of a purely conceptual theory is Hans Kelsens Pure Theory of Law, a neo-Kantian
transcendental deduction which focuses on logical analysis (Bix 2012). Unlike other
analytical theorists, like Hart, who described actual practices, Kelsen resisted any
reduction of normative standards to facts or sociological observations (Paulson 1993).
At the other end of the spectrum, legal realism (as its name suggests) is primarily
practical. Realists criticise traditionally formalistic legal reasoning, in which the
argument was presented as if the conclusion followed simply and inexorably from
undeniable premises (Bix 2012, p.195). Being practically oriented, realists focus
instead on the true nature of judicial decisions, which they claim are often based on
personal biases and policy rather than legal reasoning. They therefore advocate for the
role of public policy and social sciences judicial decision-making to be studied
(Holmes 1894).

The practical approach of realism is favoured because of the functional nature of law;
since law serves a practical role in society, theories of law should facilitate that
purpose. While the philosophical basis of legal theory is inevitable, the very fact that
law exists to organise society and adjudicate makes it inextricably intertwined with
the actual society in which it operates. As such, theories of law should not attempt to
cleanly delineate law from the practical reality. Theories of law should instead deal
with real issues and draw links with other aspects of society that are fundamental to
the operation of law in order to achieve the ultimate aim of benefitting society.

AN EVALUATION OF THREE THEORIES

In the first part of this essay, it was argued that theories of law should explain what
law is and ought to be, as a means of understanding a particular system. It was
further asserted that theories of law should be general, and practically useful. Rather
than estrange law from society, theories of law should examine the relationships
between law and key societal aspects, focusing particularly on judicial decisions, in
order to benefit society. This second part will evaluate the Hartian, Dworkinian and
economic approaches to legal theory by the aforementioned criteria, and conclude that
the Hartian approach is most persuasive because of its practical usefulness.
In terms of the first criterion that theories of law should explain what law is, Harts
theory is notably outstanding. This is unsurprising, given that Hart devotes nearly his
entire theory to describing the general nature of law. Hart describes law as a system
comprised of primary and secondary rules, which respectively impose duties and
confer powers (Hart 1994, p. 81). Of the secondary rules, he identifies one, the
socially accepted rule of recognition, as conferring legal validity to all other rules
(Hart 1994, p. 100). In doing so, Harts theory provides a clear explanation of the
structure of law, as well as the sources of its validity, which make laws distinct from
other types of habits or obligations.
Dworkins theory, on the other hand, does not explain what law is; to him, law is not
susceptible of objective definition. He does however assert that law contains not only
rules, but also principles, which are standard[s] to be observed because [they are]
requirement[s] of justice or fairness or some other dimension of morality (Dworkin
1967, p. 23). He also argues that law is an interpretive process. Although the precise
interaction between rules and principles is not clearly elucidated, Dworkins approach
still explains the structure of law, and attributes the sources of its validity to some
dimension of morality.
Law and economics is the least successful in describing law in general, though it does
attempt. According to Richard Posner, the common law is best explained as if the
judges were trying maximise economic welfare (Posner 1983, p. 4). This approach
justifies law as the formalisation of predictions about efficient behaviour (Hayman &
Levit 1994), but illuminates little about the structure or source of legal validity.
Law and economics, however, makes it abundantly clear what law ought to be
efficient (Coleman 1980). With the goal of efficiency in mind, economic theorists go
on to focus on what governments (such as courts) should do to mimic the effects of

the free market. The strength of law and economics is ultimately the unity of its
position its end goal of efficiency is clear, and any prescribed action always goes
towards the furthering that aim.
Dworkins theory of law also addresses the question of what law ought to be,
primarily by prescribing that judges should apply principles, through the process of
interpretation, to come to the one right answer. A limitation of this theory is that the
interpretative process requires judges to consider both existing laws and the
development of the law, which might produce conflicting results. While Dworkin
asserts that there is a right answer which judges can come to by ascribing the
appropriate weight to the correct principles, this is only possible for his Herculean
judge, and not in reality. Furthermore, Dworkins theory is limited because it focuses
almost exclusively on the adjudicatory process, neglecting other aspects of law.
As for Hart, who fully intended his theory to be descriptive and free from moral
evaluations, the question of what law ought to be is scarcely addressed. While he does
touch on the duty of judges, such statements are made in context of what they do,
rather than what they should be doing.
Law and economics seems practically useful at first glance, since it focuses primarily
on the practical aim of efficiency, guided by economic principles. However, its
neglect of certain key characteristics of society is extremely damaging to its practical
utility. Economics, as a model, makes many poor assumptions; for instance, it
assumes that people are always rational maximisers of their own welfare, which the
law and economics theorists then proceed to define in economic terms, like wealth
(Posner 1990). This oversimplifies the complex reality, in which morality,
interpersonal relationships, politics and the like are all at play. The result is ironic
while purporting to create practical benefits, applying the economic analysis of law,
an imprecise model of reality, might instead produce consequences that do not
maximise utility, or are even harmful (Leff 1974, p. 476). Economic analysis is
therefore not susceptible of real-world application.
Harts theory, on the other hand, is surprisingly the most useful. By establishing a
clear structure of law, Hart also identifies instances when the law runs out. He then
tries to plug the gap by suggesting that in such cases judges have the discretion to
decide, with recourse to principles of morality or policy considerations. While this has
been criticised by Dworkin as giving judges carte blanche to decide as they fancy,
judges will experience social pressure to decide in a reasonable and defensible
manner, as Hart rightly notes. This inevitably involves deference to some general
principle, which will thereby constrain the discretion of judges (Hart 1994).
Dworkins approach is extremely similar to Harts (Phang 2007), although there are
some differences that make it less useful. Dworkin asserts that judges have no
discretion instead, they apply principles to the facts of specific cases that come
before them. He then argues that there is a single right answer which judges can find
if they ascribe the appropriate weight to the correct principles. While both the Hartian
and Dworkinian approaches, and even the economic approach, try to be practically
useful by explaining the adjudicatory process, Harts theory is ultimately the most
useful because it most accurately depicts reality. Dworkin himself acknowledges that
even if he were correct and a single right answer does in fact exist, it would be

impossible in practice to fully consider all the relevant principles as he prescribes.

This aspect of his theory, which he industriously defends (Dworkin 1986), would
therefore not lend itself to practical application. In contrast, while Harts theory lacks
the prescriptive element of Dworkins, its empirical nature makes it extremely
grounded in reality, making it a good foundation upon which other theories can be
built, contributing further to its usefulness to the operation of law. This makes it the
most persuasive of the three theories discussed.
CONCLUSION
The persuasiveness of the Hartian approach lies in its practical usefulness. While the
Dworkinian approach is more comprehensive in addressing all the aforementioned
aspects of what theories of law should explain, the fact remains that the scope of a
theory alone is an inaccurate yardstick to measure its persuasiveness. After all, law is
a complex phenomenon, and no theory of law will ever be complete in itself; theories
of law therefore have to complement and build upon each other. Since the most
significant feature of law is ultimately the essential role it plays in ordering society,
the most persuasive theory is the one that best facilitates the operation of law, and is
therefore most beneficial to society. Harts descriptive and empirical approach which
is grounded in practical observation, is most persuasive because of its propensity to tie
in with other legal theories, which can inspire progress in the field of law.
(2420 words)

BIBLIOGRAPHY

Aquinas, Thomas. Summa Theologica (Chicago: Benzinger Brothers Printers to the

Holy Apostolic See, 1917).
Austin, John. The Province of Jurisprudence Determined (London: John Murray,
1832), p. 158.
Coleman, Jules. Efficiency, Exchange, and Auction: Philosophic Aspects of the
Economic Approach to Law, 68 California Law Review (1980).
Dworkin, Ronald. Harts Postscript and the Character of Political Philosophy.
Oxford Journal of Legal Studies, Vol. 24, No. 1 (2004) p. 22.
Dworkin, Ronald. Legal Theory and the Problem of Sense. Issues in Contemporary
Legal Philosophy (Oxford: Oxford University Press, 1987) p. 16. Quoted in Brian
Bix, Jurisprudence: Theory and Context (London: Sweet & Maxwell, 2012), p. 11.
Dworkin, Ronald. The Model of Rules. Faculty Scholarship Series, Paper 3609
(1967); available on http://digitalcommons.law.yale.edu/fss_papers/3609, accessed
April 2014.
Dworkin, Ronald. Justice in Robes (Cambridge, Massachusetts: Harvard University
Press, 2006), p. 145.
Dworkin, Ronald. Laws Empire (Cambridge, Massachusetts: Harvard University
Press, 1986)
Finnis, John. On the Incoherence of Legal Positivism (2000). Scholarly Works.
Paper 202. http://scholarship.law.nd.edu/law_faculty_scholarship/202, accessed April
2014.
Hart, H. L. A. The Concept of Law (Oxford: Oxford University Press, 1994), p. 240
Hayman, Robert L. Jr. and Nancy Levit. Jurisprudence: Contemporary Readings,
Problems, and Narratives (St. Paul, Minnesota, West Publishing: 1994).
Holmes, Oliver Wendell. Privilege, Malice, and Intent, 8 Harvard Law Review 1
(1894).
Lawrence, Charles R. The Word and the River: Pedagogy as Scholarship as
Struggle, Southern California Law Review, (1992).
Leff, Arthur. Economic Analysis of Law: Some Realism about Nominalism.
Faculty
Scholarship
Series,
Paper
2820
(1974);
available
on
http://digitalcommons.law.yale.edu/fss_papers/2820
Lord Denning. The Family Story (London: Butterworths, 1985), p. 240.
Paulson, Stanley L. Continental Normativism and Its British Counterpart: How
Different Are They?, 6 Ratio Juris 227 (1993).
Phang, Andrew. Jurisprudential Oaks from Mythical Acorns: The Hart-Dworkin
Debate Revisited. Ratio Juris, 3, 385-398 (1990).
Posner, Richard. The Economics of Justice (Cambridge, Massachusetts: Harvard
University Press: 1983), p. 4.
Posner, Richard. The Problems of Jurisprudence (Cambridge, Massachusetts: Harvard
University Press: 1990), p. 356.
Schauer, Frederick. On the Nature of the Nature of Law. May 9, 2011, McMaster
University Conference, The Nature of Law: Contemporary Perspectives ; available on
SSRN website, http://ssrn.com/abstract=1836494, accessed April 2014.
Schauer, Frederick. Was Austin right after all?: On the role of sanctions in a theory of
law Mar 12, 2009, Or Emet Lecture at the Osgoode Hall Law School, York

University, Toronto; available on SSRN website, http://ssrn.com/abstract-1403269,

accesed February 2014.
Shapiro, Scott J. What is Law (and why should we care)? May 20-22, 2010, 1st
Conference on Philosophy and Law: Neutrality and Theory of Law; available on
Tribunal Electoral del Poder Judicial de la Federacin website,
http://www.te.gob.mx/ccje/Archivos/scott_j_Shapiro.pdf, accessed February 2014.
Shapiro, Scott J. What is the Rule of Recognition (and does it exist)? The Rule of
Recognition and the U.S. Constitution (Oxford: Oxford University Press, 2009);
available on SSRN website, http://ssrn.com/abstract=1304645, accessed April 2014.