n South African Law Journal - Hart, Dworkin and the nature of (South African) legal theory

Volume 123, Issue 4
  • ISSN : 0258-2503
  • E-ISSN: 1996-2177



The &lt;i&gt;Postscript&lt;/i&gt; to H LAHart's <i>Concept of Law&lt;/i&gt; is examined in this article, which appraises its response to points raised by Ronald Dworkin and considers the implications of the debate between these theorists for South African law. The authors conclude that through his embrace of 'soft positivism' Hart gained the upper hand against Dworkin's early criticisms, but that his central suggestion in the &lt;i&gt;Postscript&lt;/i&gt; - that his project and Dworkin's can be reconciled, or forced into a type of accommodation - is unconvincing. More specifically, they contend, Hart does not adequately recognize the threat that Dworkin's 'semantic sting' argument poses to the 'rule of recognition', a central plank of positivist theory. The final part of the article seeks to demonstrate the relevance of Dworkin's notion of constructive interpretation to South African law by engaging with the question how the equality clause in the Bill of Rights should be interpreted. The article suggests that many debates about the nature and requirements of the South African Constitution-such as how best to interpret the equality guarantee set out in s 9 - may be understood as disagreements about the purpose of the Constitution, which translate into disagreements about which interpretation best exemplifies the purpose that the Bill of Rights is alleged to serve.

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