§4 lays out the issue on which Dworkin’s criticisms of Hart (and of positivism generally) will center. Even before you go on to consider Dworkin’s arguments against Hart, think whether you would choose option (a) or (b) (see p. 198).

Section § 5 is the heart of Dworkin’s argument against positivists in general and Hart in particular, and it will occupy the bulk of our time. It can be divided into four parts, with each of the first three providing a key element of the argument.

• Dworkin’s distinction among three sorts of discretion (pp. 199-202) serves to define what is at issue between him and the positivists. Get a good sense of the differences among the three senses using both his examples and his descriptive comments about them.

• Dworkin next presents and replies to three arguments positivists might offer for their position (pp. 203f). Choose the argument you take to be the strongest and get clear about the way Dworkin tries to get around it.

• Dworkin offers one positive argument for his own position (pp. 204f). Read it carefully both to evaluate it and to get a better sense of the position he holds.

• The last part of the section (pp. 206f) is not part of the argument itself but provides an important supplement to it: Dworkin attempts to explain why, if the positivists’ position is false, anyone would have been inclined to adopt it.

In §6, Dworkin asks whether a positivist like Hart could accept principles as binding while remaining a positivist. Three steps in Dworkin’s negative answer are distinguished below; think how you would state each of these steps in your own words.

• Dworkin first argues (pp. 207-208) that there could be nothing that would do for principles what Hart’s rules of recognition do for the rules that are found in legislation and precedent.

• Next (pp. 209-210) he considers Hart’s treatment of customary law as another possible route for incorporating principles and argues that doing so would undercut Hart’s structure of primary and secondary rules.

• A final option is to replace the rule of recognition by a principle, but Dworkin argues (pp. 210-211) that this would be to give up on legal positivism.

Dworkin’s concluding comments about the positivists’ theory of legal obligation point to the way he develops his own theory of the law. His comment here about what “we might want to say” (p. 211 col. 2) is a fair description of what he does say.