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Furthermore, in such cases, judges are exercising strong discretion insofar as they are obligated to look beyond the law and apply these extralegal principles to the case at hand. 38 4:26 P1: KNP 0521664128c01 CUFX110/Ripstein 0 521 66412 8 The “Hart–Dworkin” Debate: A Short Guide for the Perplexed March 30, 2007 33 B. Inclusive Legal Positivism Most legal positivists, however, have not taken the exclusivist route. Instead, they have sought to deflect Dworkin’s critique by rejecting his characterization of positivism.
31 Contrary to Dworkin’s interpretation, Hart never embraced the model of rules, either explicitly or implicitly. Nor would it be accurate to claim that the core issue of the debate revolves around the question of judicial discretion. To be sure, Hart and Dworkin did disagree about whether judges have strong discretion in hard cases. Yet this dispute is a derivative one: both sides take their positions on judicial discretion because of their very different theories about the nature of law. As we have just seen, Hart held that judges must sometimes exercise strong discretion because he takes the law to consist in those standards socially designated as authoritative.
They are disagreeing about the identity of the grounds of law, that is, about what must take place in their legal system before a proposition of law can be said to be true or false. ”49 This is so because “our jurisprudence” is committed to a “plain-fact” view of law. The plain-fact view, according to Dworkin, consists of two basic tenets. First, it maintains that the grounds of law in any community are fixed by consensus among legal officials. If officials agree that facts of type f are grounds of law in their system, then facts of type f are grounds of law in their system.