Phi 213 Sp13
 
Reading guide for Fri. 2/8: H. L. A. Hart, The Concept of Law, ch. 7, §§2-3 (pp. 136-147)
 

While the first section of chapter 7 focused on respects in which Hart agreed with Holmes and other legal realists, these sections outline his criticisms of their views.

Section 2 serves to define the issue that Hart will go on to discuss in §3. When reading §2, think through each of the forms of “rule-skepticism” Hart describes and ask yourself which seems most plausible. Although Hart will focus on one form to discuss in depth in §3, some of the others are worthy of further consideration. For example, Dworkin will reject Hart’s way of avoiding the “false dilemma” described on p. 139, but he will still hold that the dilemma is false (since, according to him, judges can be bound by standards other than rules). As a result, Dworkin could be considered a kind of rule skeptic; but, if so, he is not a rule skeptic who would agree with the views of the American legal realists that Hart calls attention to.

In §3, look for the way in which Hart wishes to distinguish finality and infallibility. In particular, think about his discussion of the significance of statements of the score made by official scorers in ordinary games by contrast with their significance in what he calls a game of “scorer’s discretion.” These ideas will probably be the ones we will spend most time on in our discussion. (They will reappear when we discuss Dworkin. He will attack Hart’s ascription, at the end of §7.1 (pp. 135f), of a limited legislative role to judges in the way Hart attacks the broader legislative independence asserted by the legal realists.)