Principled Formalism: The Hart/Dworkin Debate’s Lessons for Judicial Adjudication Open Access

Lessnick, Jaden (Spring 2020)

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In the coming months and years, courts will be tasked with resolving increasingly controversial and consequential cases that affect, in some way or other, every citizen. Accordingly, the process by which judges make decisions is paramount and deserves heightened scrutiny. One of the most seminal and enduring debates to consider not only the legal adjudicatory process but also the nature of law more broadly is the debate between HLA Hart and Ronald Dworkin. While this debate has been contemplated by many legal scholars, few have considered the debate on its normative merits.

This paper utilizes the Hart/Dworkin debate to normatively deliberate regarding how judges ought to make decisions. By examining Hart’s discretion and Dworkin’s interpretivism, I develop a set of requirements to inaugurate a new theory of judicial decision-making. In short, I conclude that judges should be bound by moral principles even if not explicitly codified in the text of the law. I adopt a constructivist approach to explain the origin of these moral principles, which recognizes morality as socially constituted. I ultimately develop a theory of “principled formalism” that explains a mechanical process by which judges ought to incorporate morality into their decision-making processes. Principled formalism is the product of lessons gleaned from a normative analysis of the Hart/Dworkin debate, and will hopefully galvanize future consideration into the methods with which judges adjudicate their controversial cases. 

Table of Contents


1) Hart's New Legal Positivism......6

2) Dworkin's Rights-Based Interpretivism......17

3) Evaluation of Discretion......35

4) Evaluation of Moral Interpretivism......44

5) A New Theory of Judicial Decision-Making......57

6) Conclusion......72


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