The hand of Midas: When concepts turn legal, or deflating the Hart-Dworkin debate

Abstract

The law shares many of its concepts with other areas of discourse. That most of these concepts have a specific legal meaning when used inside the law is a well established linguistic fact. The law develops its own conceptions of concepts it shares with other disciplines. Like King Midas, who turned anything he touched into gold, the law turns its concepts into legal ones. The deep reason for the Midas quality of the law lies in the specificity of the legal practice, its methods, doctrinal standards, and institutional setting. This holds also for the one area where shared concepts have triggered one of the main controversies in legal theory: the relation of legal and moral concepts. Dworkin initially attacked Harts separation thesis with the observation that the law employs moral principles in hard cases. Positivists have struggled ever since to accommodate this observation. But if the law has a Midas quality the whole debate deflates. Even in hard cases, the law applies legal conceptions of concepts it shares with morality. These conceptions are specifically legal and not to be confounded with their moral counterparts.

Keywords: Legal theory, Positivism, Hart-Dworkin debate, Law and morality, adjudication.