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O rd e r N u m b e r 8904261

Law as an interpretive concept: A study of the legal philosophy


o f R onald Dw orkin
Sullivan, Kevin Edward, Ph.D.
Marquette University, 1988

300 N. Zeeb Rd.


Ann Arbor, M I 48106

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LAW AS AN INTERPRETIVE CONCEPT:

A STUDY

OF THE LEGAL PHILOSOPHY OF


RONALD DWORKIN

by

Kevin Sullivan, B.A., M.A.

A Dissertation Submitted to the Marquette University


Graduate School in Partial Fulfillment of the
Requirements for the Degree of Doctor of
Philosophy

Milwaukee, Wisconsin
July, 1988

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Kevin E. Sullivan

ABSTRACT
LAW AS AN INTERPRETIVE CONCEPT:
A STUDY OF THE LEGAL
PHILOSOPHY OF RONALD DWORKIN

The purposes of this study are both expository and


critical. The expository purposes are: first, to show that
Dworkin's legal philosophy presents a comprehensive and
unified conception of law; second, to show that Dworkin's
conception is a significant and (in some respects)

superior

alternative to the traditional views in legal theory natural law and legal positivism.
Dworkin conceives of law as an interpretive concept
designed to construct an internal, participants' view of a
community's legal practice. This constructive interpretation
is meant to show that each community's legal practice
embodies principles and values drawn from the community's
basic political morality. Moreover, this interpretation both
explains the existing elements of the legal record (e.g.,
statutes, precedents,regulations, etc.), and justifies these
elements by connecting them with a defensible background
political morality.

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Kevin E. Sullivan

Dworkin's conception of law as interpretation provides a


more consistent account of (a) the process of adjudication.,
especially in hard cases: and (b) the internal obligations of
legal practitioners, particularly judges. Moreover, the
interpretive conception of law allows Dworkin to offer a
better account of the connection between law and moral and
political principles and convictions.
The critical appraisal of Dworkin's theory reveals two
serious problems. First, it presupposes an unlikely degree of
moral and political coherence in existing legal practice.
Second, interpretations on Dworkin's theory are contextdependent and provide no theoretical ground for making
evaluative judgments between divergent forms of legal
practice.

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Preface

At the outset of his most recent book Ronald Dworkin


summarizes with remarkable concision the main lines of his
entire legal philosophy,
that legal reasoning is an exercise in
constructive interpretation, that our law
consists in the best justification of our
legal practices as a whole, that it consists
in the narrative story that makes of these
practices the best they can be.^
In broad terms the purposes of this study can be stated
equally concisely. First, as an expository account it is in
tended both to present in detail the substance of Dworkin's
sometimes cryptic views in legal theory and to trace their
development over the course of his several celebrated but
controversial works.
Second, as a critical account it seeks to answer two
overall evaluative questions. Does Dworkin's analysis of law
as an interpretive concept with the central role he assigns
to such seemingly non-juridical concepts as integrity,

insti

tutional history and political morality provide a plausible


or valuable account of what law is? And granting the value of
Dworkin's theory, can it offer solutions to the most pressing
theoretical problems presently under debate in legal philoso
phy?
In particular, what account does Dworkin offer for:
(1)

the relationship of a community's law with its back


ground morality and its forms of political practice;

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(2)

the unique adjudicative role and obligation of judges in


legal systems?
As a preliminary, some explanatory remarks are in order.
Dworkin's theory of law presents some peculiar exposito

ry difficulties owing to its piecemeal development in a se


ries of published works ranging from the seminal article
"Judicial Discretion"

(1963) to the present full-scale theo

retical statement in Law's Empire (1986). The recurring theme


of these varied works indeed, their consistent focal point
has been the theory of adjudication and, in particular, the
account of how judges reach decisions in so-called "hard cas
es."2 Such hard cases occur at "gaps" in the law where there
exists no clear legal rule applicable to the dispute at hand.
According to the received view, largely inspired by posi
tivist jurisprudence,

judges in such cases are entitled to

strong discretion i.e., in adjudicating they render an in


dependent value judgement which simultaneously disposes of
the dispute at hand and closes the legal gap by formulating a
new legal rule.
Dworkin's work has represented a consistent protest
against this account of adjudication, particularly the notion
of strong judicial discretion. In its place, Dworkin urges a
view of adjudication, applying equally in both standard and
"hard" cases, as constructive and interpretive, but deeply
connected to the background moral and political principles
presupposed by the regime of legal practices itself. Adjudi
cation is never a routine mechanical application of general

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rule to particular case. Rather it will always involve some


interpretive reference to background rights and principles
that constitute the moral and political context of legal
practice though such interpretive reference will vary in
degree of explicitness depending upon the straightforwardness
of the case at hand. Consequently, adjudication in law for
Dworkin always involves political interpretation. Law and po
litical morality are thus intimately connected; indeed,
"jurisprudential issues are at their core issues of moral
theory."3
Dworkin has employed a wide array of devices for articu
lating and justifying these claims: at different times he has
employed different themes or arguments in stating his overall
theory. Thus, in Taking Rights Seriously one finds the themes
of background rights, political morality and the distinction
between principle and policy receiving primary emphasis. In
Law's Empire attention has shifted to loftier theoretical is
sues like the nature of interpretation itself, the principles
of inegrity and coherence, and the role of the legal system
as a constituent of the larger political community. Estab
lishing the relationships among these patchwork elements in
Dworkin's legal theory is the principal expository task of
this study. Indeed, it is because

of the very complexity of

Dworkin's views and their tortuous path of development that


such an exegetical exercise is even

necessary.4

It is only fair that the theory of law presented in


Law's Empire be treated as Dworkin's mature and considered

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view. Hence, the bulk of this study concerns itself with ana
lyzing his views in that book. Law's Empire is intended as
both a deepening and focusing of Dworkin's earlier work and
as an attempt at connecting his jurisprudence with broader
philosophical issues. Reference to these earlier works es
pecially the book-length collections Taking Rights Seriously
and A Matter of Principle will serve primarily to clarify
and amplify the content of Law's Empire.
Why does Dworkin's theory of law merit such close atten
tion and study? Dworkin's views are highly controversial and
have elicited a torrent of critical comment, most of it seri
ous but largely unsympathetic to his substantive conclusions.
The justification for this study (and the working assumption
throughout)

is that Dworkin's theory of law is a major depar

ture from and a significant advance in contemporary jurispru


dence. Dworkin suggests a new starting point for legal phi
losophy: an adequate theory of law must be at once both nor
mative and conceptual.
It is a commonplace of legal philosophy that jurispru
dence comprises two distinct theoretical standpoints, analyt
ical and normative. The former is concerned with conceptual
questions involved in describing the fundamental nature of
law; the latter, with evaluative questions of the appraisal
of law and the various moral issues law generates.
Dworkin's most basic claim, that law is fundamentally a
constructive interpretation of a community's political moral
ity, is a challenge to the sharp theoretical disjunction of

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analytical and normative, conceptual and evaluative, that has


in Dworkin's opinion "enfeebled legal theory."5 On the theory
of law in La w s Empire, what the law of a given political
community is can be stated only by explicitly incorporating
those substantive background political and moral principles
that inform the milieu within which the la w s institutions
operate. Since the analytic/normative distinction is one of
the legacies of legal positivism, Dworkin's theory is a chal
lenge as well to the received tradition in contemporary ju
risprudence .
Moreover, the "enfeeblement" Dworkin perceives in legal
philosophy is most evident in a series of penumbral problems
are the focus of most current discussions problems which
are likewise among the legacies of positivism and which thus
far have had no satisfactory solutions. Issues such as (1)
the nature and extent of judicial discretion;

(2) the sources

of institutional constraints on adjudication; and (3) the


extent of the mutual influence exerted by law and morality on
each other's domains resist solution because they lie in a
penumbral region outside the neat theoretical categories
yielded by the analytic/normative distinction.
The value of Dworkin's legal theory is precisely in its
recognition that only a theory that reintegrates the norma
tive and conceptual elements of law in a single theory will
be comprehensive enough to address these penumbral issues.
Within such a theory these issues will in fact no longer be
penumbral but will represent the paradigm instances of the

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law's function as a mechanism for integrating,

in an institu

tional setting, the political morality of the community.


The previously cited instance of adjudication of hard
cases is an apt illustration. For orthodox positivism, the
hard case represents the outermost instance of the law's in
determinacy. As a regime of positive rules, law is under
standably incapable of anticipating every possible future
contingency. For these novel cases in which the law is silent
(or at least of dubious substantive guidance)

judges must de

cide by supplementing the law with independent value judg


ments "independent," that is, in the sense that they appeal
to no positive legal rule for justification. The net effect
is judicial legislation, "judge-made law." Such strong judi
cial discretion is disturbing from a theoretical standpoint
since it casts doubt upon the entire picture of law as an or
derly system of rules. Even more disturbing, however,

is the

fact that "judicial legislation" conflicts with some of the


most basic norms of political practice in democratic soci
eties .
In broad terms, Dworkin's view of adjudication as con
structive interpretation, by unifying the political and legal
elements in judicial action, provides a more coherent pic
ture. All adjudication, for Dworkin, is interpretation guided
by the substantive moral and political principles embodied in
the system of legal practices as a whole. It is only that, in
the hard case, this process of interpretation is more evi
dent; the political principles brought to bear must be made

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more explicit since the guidance provided by the legal facts


and rules themselves is less straightforward. And judges do
not stride off independently to plug gaps in the law. In ev
ery adjudicative act the judge is constrained in his inter
pretation by the demand that his construction be coherent and
consistent with the institutional history of the legal system
up to that point. It is this mechanism of internal constraint
that makes even vigorous and active judicial review and in
terpretation nevertheless consistent with other institutions
and norms of democratic government.
A final theme of Dworkin's deserves some comment here.
Clearly it is the mechanism of interpretation that unites in
law the normative and the conceptual. Hence, the concept of
interpretation and the philosophical issues surrounding it
demand some treatment even in a theory of law. A comprehen
sive theory of law, particularly one which turns upon the no
tion of interpretation, requires a comprehensive account of
what interpretation is. Moreover, a genuinely comprehensive
account of interpretation will necessarily involve the legal
theorist in epistemological issues as well.
All these concerns have a bearing upon the interpreta
tion of Dworkin's work because they speak to his unique con
ception of what an adequate, comprehensive theory of law must
be. Just as Dworkin resists the disjunction of political and
moral from legal elements in jurisprudence, so he insists
upon the reconnection of the philosophy of law with the larg
er concerns of philosophy in general.

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viii

The value of such attention to the philosophical assump


tions underlying any theory be it of law, physics or psy
chology is virtually self-evident. But the theory of inter
pretation is a particularly clear example. If, as some con
temporary conceptions claim, interpretation is an inherently
value-guided (not to say value-laden) process, any theory of
law that accords to interpretation a central role will neces
sarily view law as an integration of value and factual ele
ments. Moreover,

such a theory will be inimical to attempts

like that of legal positivism to sharply dichotomize the fac


tual and value dimensions of law. As will be seen, Dworkin's
differences with positivism are metaphysical as well as ju
risprudential .
The business of evaluating Dworkin's overall conception
of law requires first a detailed exposition of just what that
conception is. The plan of this study is to enter into
Dworkin's work by first presenting (in chapter 1) his concep
tion of what a general theory of law is, what elements it
should contain, and what types of questions it is designed to
answer. This conceptual scheme provides a basis for dis
cussing (in chapter 2) the legal theory of H.L.A. Hart, the
clearest and most powerful contemporary version of legal pos
itivism. In turn, Hart's positivism serves as a backdrop for
a study of Dworkin's reaction to positivism and the gradual
growth of his constructive views on the nature of law (in
chapter 3). Finally, the success and value of Dworkin's legal
theory is assessed (in chapter A) by applying his theory of

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law as an interpretive concept to a series of substantive le


gal issues ranging from formal questions like the sources
of judicial obligation to - substantive issues like that of
the most coherent interpretation of constitutional concepts
like the Fourteenth Amendment's "equal protection clause" in
cases of discrimination and preferential treatment.
Finally, chapter 5 explores the most serious problems
with Dworkin's interpretive approach to law. Specifically,
Dworkin's conception of interpretation,

since it requires as

suming the stance of a participant within a given legal com


munity,

is fundamentally context-dependent. This limits its

application as part of a general theory of law designed to be


equally applicable to legal systems with varying moral and
political backgrounds.

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TABLE OF CONTENTS

Chapter
I.

THE FORM AND FUNCTION OF A LEGAL T H E O R Y ...........1


Basic Questions
Dworkin's Basic Question
A Dworkinian Model of a Legal Theory

II.

THE MODEL OF R U L E S ................................ 23


The Province of Positivism Determined
A Philosophical Preliminary
Law as a System of Rules

III.

THE PLANE OF PRINCIPLE............................ 62


Adjudicating the Hard Case
Dworkin's Theory of Law
The Status of Principles
Rights: Background and Institutional
The Soundest Theory of the Settled Law

IV.

LAW AS AN INTERPRETIVE CONCEPT................... 124


Disagreement and the Grounds of Law
The Interpretive Attitude
The Concept of Law
Two Applications

V.

A CRITICAL APPRAISAL............................. 161


Interpretation and "Legal Practice"
Interpretation and Coherence
Law and Political Morality

CONCLUDING REMARKS ........................................

204

N O T E S ....................................................... 211
BIBLIOGRAPHY ............................................... 259

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Chapter One:
The Form and Function of A Legal Theory

On the subject of theories in general Whitehead once ob


served that "the criticism of a theory does not start from
the question, true or false? It consists in noting its scope
of useful application and its failure beyond that scope."6 In
settling upon a procedure for examining Dworkin's theory of
law it is especially important to keep in mind this question
of "scope of application." Understanding Dworkin's contribu
tions to legal philosophy is largely a matter of coming to
understand his distinctive theoretical point of view.
Indeed, a customary and generally reliable procedure for
approaching any legal theory is to connect it to an existing
tradition within the philosophy of law and then to demon
strate how the theory in question takes up and extends an
already viable thread of theoretical argument and discussion.
But this customary procedure must be largely abandoned in
approaching

r>

orkin's legal theory. There is a clear reason

for this: Dworkin's theory, as presented here, is less an


extension of some existing tradition than a challenge to the
existing configuration of competing theories in the
philosophy of law.
If legal theory can be viewed in terms of a spectrum of
views with positivism and natural law representing the two
extremes of orthodoxy Dworkin's conception of law should be
regarded as a somewhat less dogmatic hybrid intermediate be

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tween these two extremes. Though admittedly simplistic, this


image does indicate Dworkin's relationship with the two chief
perspectives in legal theory.7
But even more important

(particularly at the very outset

of a study of his work) are the more basic, critical ques


tions Dworkin asks about the nature of legal theorizing it
self. Obviously Dworkin intends to depart from the received
tradition by reaching independent substantive conclusions
about the philosophical problems of law. Less obviously, but
of no lesser importance, is Dworkin's concern for re-directing and reshaping the function and purpose of theorizing
about law.
Among other things, Dworkin insists that we re-examine
the form of a theory of law, the conceptual elements which
ideally it ought to include, in light of a similar re-examination of the kinds of questions we intend such theories to
answer. Dworkin's differences with the jurisprudential tradi
tion (as he sees it) are so complete that he disputes not
only the traditional conclusions but also the questions to
which these conclusions purport to be answers.
These are broad, rather unspecific claims. Arguing for
them as well as filling in the details, requires examining
what might be termed the "meta-theoretical" aspects of
Dworkin's legal philosophy. The present chapter, then, is
aimed at constructing a Dworkinian working model of a theory
of law based, for the most part, on the modest outlines
Dworkin himself has provided. Though these may seem purely

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procedural matters, this will not be a purely formal exer


cise. As will be seen, Dworkin's criticisms

of the jurispru

dential tradition as well as his peculiar emphasis on inter


pretation stem from his conception of what a theory of law
ought to be.

1. Basic Questions

What questions are legal theories designed to answer? We


can begin with the most basic question of legal theory, "What
is law?" That this questions is paradigmatically ambiguous
is, of course, a philosophical commonplace. Indeed, in a
still useful article,8 Rolf Sartorius sought to "disambi
guate" the question by listing four distinct forms of "what
is law?":
(1) What is a legal system?
(2) What is a valid law?
(3) What is the essence, or nature, of law?
(4) What is a good reason for a judicial decision?
As Sartorius indicates, these four forms of the question
"what is law?" though clearly distinct are nevertheless quite
closely related. And just as (l)-(4)

jointly encompass what

can be termed the basic questions confronting the philosophy


of law, it should not be surprising that the relationships
between the answers which a given legal philosopher gives to
them may also be so close that they may be said to constitute
a unified theory of law.9

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In effect, a theory of law on this view must at a mini


mum comprise systematic answers to all four forms of the
question "what is law?," as well as include some explicit at
tempt at relating these distinct answers into an internally
coherent account of law in general. Thus, reference to ques
tions

(l)-(4) yields clear indications of just what form

theories of law will take and the specific aim they will be
designed to achieve. Namely, a comprehensive theory of law
must provide specific content to such concepts as validity,
legal justification and reasoning and the meaning of 'law.1
And by tracing the mutual relations among these concepts a
theory thereby presents an overall picture of what law is.
For expository purposes this view outlined by Sartorius
will be considered the "standard" model of a legal theory. By
standard here it is meant merely that this manner of modeling
legal theories is a fairly common practice among legal
philosophers. In fact there are good reasons for endorsing
this theoretical model, not the least being its usefulness as
an analytical tool. The content of virtually any theory of
law can be brought out by applying this informal "test."10 It
succeeds as well in exposing a theory's characteristic pre
occupations and limitations.
Consider,

for example, the legal theory of Thomas

Aquinas, perhaps the seminal expositor of what has passed


into the jurisprudential tradition as the natural law per
spective. In general,

for Aquinas, the "natural law" is a

technical concept to be understood as a comprehensive prac

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tical principle which embodies or expresses, albeit in the


most abstract manner, an overall interpretation of human
nature and of man's relation to God and to the universe as a
whole.
In a more specific,

jurisprudential sense, the natural

law represents a fundamental standard of validity for the


evaluation of positive law and of social and political insti
tutions. It is essential to bear in mind such broad interpretational provisos even when approaching Aquinas1 doctrine
from a purely jurisprudential point of view.
What are the details of Aquinas1 account of law? In
other words, how does Aquinas answer the four basic questions
of legal philosophy? Aquinas' conception of the essence or
nature of law is admirably straightforward,
Law is a rule or measure of human action...
[in accord with] reason, the first principle
of human acts that must have as its proper
object the well-being of the whole commun
ity... promulgated by whoever is charged with
the care of the community.11
Equally evident here is Aquinas' account of legal valid
ity, a "valid law" must "partake of right reason," as well as
fulfill the other more specific requirements of (a) con
tributing to the common good;

(b) issuing from the duly rec

ognized, legally competent authority; and,

(c) being properly

promulgated among those subject to its provisions.12


Ultimately, however, legal validity is judged in terms
of the criterion of justice, a standard itself measured by
reference to right reason. The natural law represents general

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directives for conduct whereby human beings are enabled to


achieve the ends appropriate to human (i.e., "rational")
nature. As such, natural law is "the first rule of reason."
Further,
The validity of law depends upon its justice.
But in human affairs a thing is said to be
just when it accords with the rule of
reason... Thus, all humanly enacted laws are
in accord with reason to the extent that they
derive from the natural law. And if a human
law is at variance in any particular with the
natural law, it is no longer legal, but
rather a corruption of law.13
The purpose of positive

(human) law for Aquinas is to

make explicit the natural law and to apply it to particular


human circumstances. To the extent that positive law succeeds
in doing this in other words, to the extent that it ful
fills the rational requirements of justice it is properly
called "law" in the strict sense.14
The foregoing is a mere sketch of Aquinas' legal theory
and, in the interests of economy, a brief one at that. The
aim here has been illustration; to demonstrate the analytical
value of the standard model of a legal theory. For when
Aquinas' legal theory is mapped onto Sartorius' four basic
questions model, a clearer picture of his account of law
emerges.
Aquinas' theory is normative in the extreme. Little, if
any, consideration is given to purely conceptual questions,
(e.g., semantic vs. evaluative definitions of 'law'); indeed,
if anything Aquinas tends to conflate normative concerns

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about the moral evaluation of law with straightforward con


ceptual issues about how the concepts 'law' and 'validity1
function. So Aquinas answers questions

(2) and (3) by refer

ence to an explicit moral theory, his conception of natural


law, in this instance extended to provide an account of posi
tive law as well.
Moreover, Aquinas' failure (in general) to clearly draw
distinctions between normative and conceptual questions
accounts for the vagueness of his "response," if any, to
questions

(1) and (4). Answering the question of what consti

tutes a system of laws requires that a theory present some


explicit criteria of "identity" and "membership."15 "Identity"
provides a test for classing an item as a law in the first
place; "membership" indicates means for determining to which
institutionalized system a given law belongs.
Clearly such criteria require conceptual analysis, at
least as a preliminary. In fact, criteria of identity and
membership, though they obviously harken back to the ques
tions of validity and the essential characteristics of law,
are nonetheless independent of the substantive content in any
given law or legal system. To attempt an analysis of a legal
system by reference to a normative or moral theory is, at
least from the perspective of the standard theoretical model,
a confusion. Such an analysis confusedly makes the formal
criteria for legal systems and their constituents dependent
upon the substantive content of a particular theory for eval-

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uating such systems. Hence, Aquinas' failure on this question


evidences his deviation from the standard model.
Nor is it surprising that Aquinas provides no precise or
explicit account of the grounds for judicial decisionmaking.
Although this is a less straightforwardly conceptual issue
than the, preceding, it requires that a clear distinction be
made between the elements both normative and conceptual
at stake in judicial decisions.
Aquinas is clear and emphatic in enumerating the various
points of contact between moral and legal norms, even if the
exact influence of the former over judicial behavior is never
specifically addressed. This is largely because Aquinas pro
vides no explicit account of the function of legal institu
tions [in particular the judiciary], tending instead to focus
upon the legislator and the normative content of his enact
ments .
Finally, analyzing the grounds for judicial decisionmak
ing requires above all an account of the distinctive forms of
reasoning in the law. Legal reasoning, in the sense intended
here, is
the 'logic' of judicial decisionmaking... the
kinds of arguments judges give, the
relationships between the reasons and the
decisions, and the adequacy of these reasons
as support for the decisions.16
These are usually seen as predominantly conceptual issues
whose solution (in principle)

is possible independent of

questions about the substantive content of particular laws or

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judicial decisions. Given Aquinas' overwhelmingly normative


orientation, such issues are largely overlooked in his legal
theory.
The question of "orientation" is particularly interest
ing at this point for we can ask it not only of specific
legal theories

(as was done with Aquinas') but also of the

very "model" of a legal theory employed throughout here. Just


as the mapping of Aquinas' theory in terms of Sartorius'
model revealed Aquinas' explicitly normative orientation
toward the understanding of law, there also emerges a dis
tinct meta-theoretical orientation that the model itself
takes toward theorizing about law.
This orientation clearly centers upon the distinction
between the normative and conceptual elements in legal theo
ries. Paralleling this distinction is a bifurcation of the
possible approaches theories can take toward law assuming
either an evaluative-prescriptive or an analytical-descrip
tive point of view. And it is clear from the foregoing review
of Aquinas' legal theory that the standard model framed
around the four versions of the basic question,

"what is

law?" is aimed not only at systematically separating the


normative and conceptual elements in law, but seeks as its
ideal a purely formal,

"content-independent" analysis of

legal concepts, systems and institutions.


The aim, in other words, is toward what H.L.A. Hart has
described as "an evaluatively neutral, autonomous analytical
study of the law" that encompasses "a division between

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10

inquiries concerned with the analysis of law and legal con


cepts and those concerned with the criticism or evaluation of
law."17 Sartorius' four basic questions, viewed in this light,
become instruments for separating analytical from evaluative
questions. Moreover, given the separability of such questions
and the further recognition that conceptual issues

(as op

posed to evaluative ones) are more amenable to philosophical


analysis, the most successful realization of the "standard
model" is a theory that consistently eschews controversial
evaluative claims in favor of relatively uncontroversial con
ceptual-descriptive analysis. Legal theories, in the first
instance, must remain on the relatively objective ground of
conceptual analysis. Issues of evaluation and criticism,
though important, are nevertheless ancillary in constructing
a systematic theory of law.
This is clearly recognizable as the meta-theoretical
orientation of legal positivism, originating in Jeremy Bentham's admonition that legal philosophers treat separately
the distinct issues of the law "as it is" and "as it ought to
be."
It is also the fundamental point on which Dworkin de
parts from the "ruling" tradition in legal philosophy. For he
denies positivism's basic theoretical presupposition, the
separability of normative and conceptual elements in the law.
Hence, Dworkin's conception of the form and function of a
theory of law begins at an entirely different point.

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11

2. Dworkin*s "Basic Question"

In one of his earliest articles Dworkin addresses him


self

to the topic of "basic questions"

and his

view is a striking "inversion"

in legal philosophy
of the modelframed in

terms of Sartorius1 four questions:


What, in general, is a good reason for a
decision by a court of law? This is the
question of jurisprudence; it has been asked
in an amazing number of forms, of which the
classic "What is Law?" is only the
briefest.18
Dworkin's versions of the "basic question" seems an exaggera
tion calculated for shock effect. The issue of judicial deci
sionmaking is a rather parochial concern, enmeshed in the
mechanical technicalities of the law seen as a functioning
institution. To make this the central issue in legal philoso
phy seems misguided, if only because such a question lacks
the scope and generality of the more traditional philosophi
cal question,

"What is the essence of law?"

But Dworkin's intentions become clear if one considers


even briefly what would be involved in answering the ques
tion, What is a good reason for a decision by a court of law?
The point is to bring into focus the related concepts of in
terpretation and justification, concepts which for Dworkin
exemplify the paradigmatic legal phenomena and are the keys
for revealing the basic features of law. This point becomes
clearer by examining an actual instance.

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12

Consider Fortune v. National Cash Register Co..19 a case


in contract law, summarized as follows. Fortune was a sales
man whose employment contract with the defendant included,
inter alia, an explicit "termination at will" clause. It
should also be noted that the contract contained no express
provisions regarding the duration of Fortune's employment.
Fortune had been a 25-year employee of National Cash
Register in good standing. One day after he had negotiated a
five million dollar order thus positioning himself to re
ceive a substantial sales commission the defendant termi
nated Fortune's employment. In the ensuing action Fortune
contended that in terminating him the company had violated
its implied duty of "good faith in performance" of the con
tract's provisions; the company argued that it had merely
exercised its contractual right of "termination at will."20
The court found that Fortune had been terminated because
the company intended to avoid payment of his sales commis
sion. Hence, the court awarded Fortune damages sufficient to
compensate for the withheld commission,

finding that National

Cash Register had not acted in good faith in terminating


him.21
Dworkin's conception of the basic question of law what
is a good reason for a court's decision? provides a method
for understanding the decision in Fortune. At the same time
it outlines a means for showing how cases like Fortune effec
tively exemplify the function of law in general.

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13

First, the particular case, what constitutes a "good


reason" for the court's finding in the instant case? Even
with respect to the particular instance, for Dworkin, we are
asking a fairly complex question which takes the following
form:
(1)

What past "legal history,"

(e.g., statutes, court deci

sions) , does the judge consider relevant and how does


she interpret its bearing on the instant case?:
(2)

How does the judge justify both her interpretation in


(1) and her choice of extending the relevant line of
legal history in the particular direction implied by the
actual decision?22
One can "anatomize" the judge's procedure in Fortune

first by noticing the interplay here between interpretation


and justification. In examining the dispute in this case, the
judge not only notes its relationship with an entire body of
similar past decisions in which courts have in fact enforced
employment contracts in very specific ways. But in addition
[the judge] must regard himself... as a
partner in a complex chain enterprise of
which these innumerable decisions, struc
tures, conventions, and practices are the
history. It is his responsibility to continue
that history into the future. He must in
terpret what has gone before...he must
determine, according to his own judgment,
what the earlier decisions came to, what the
point or theme of the practice so far, taken
as a whole, really is.23
What foundational "theme" underpins previous courts' en
forcement of employment contracts? Put another way, around

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14

what theme can these various court decisions be organized and


viewed as a consistent, coherent body of judicial acts? Obvi
ously there are many such themes, but the law's concern for
preserving "good faith in performance" is clearly important,
not to say fundamental, to the very point of contract as a
legal mechanism. And since the maintenance of "good faith in
performance" is the clearly implied result of the judge's
best effort at interpreting the relevant past legal history,
the most justifiable way in which the judge can extend this
history in the Fortune case is by finding for the plaintiff
even if that entails limiting or overriding an explicit
contract provision. The judge's interpretation reveals the
underlying theme. At the same time, the substance of this
interpretation the specific legal principle or theme
supplies the judge's justification for his decision. By
deciding for Fortune, the judge embodies this historical
theme in the decision at hand.24
But in so doing the judge does not abandon concern with
issues

(of a conceptual nature) like the definition of 'law,'

legal validity or the criteria of membership in a given legal


system. These are necessary elements in his interpretation:
in effect, they represent criteria for specifying what is to
count as the relevant "legal history" to be interpreted. But
they no longer occupy center stage as the basic concerns in
law. Rather, what is fundamental is the historical path
described by the law and the continual need for interpreting
the meaning and direction of this path and how such inter-

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15

pretation functions as the key for uncovering not just what


the law has said but what it does say on a given specific
question.
As an account of adjudication this is decidedly sketchy.
But it does indicate some of the larger pqncerns that animate
Dworkins overall theory of law. Having focused upon inter
pretation as a means of explaining judicial decisionmaking,
it seems reasonable to assume that the depth and scope of in
terpretation (as Dworkin employs the concept) will expand in
proportion to the generality of the topic under considera
tion. For as we have seen a specific court's decision in a
narrow dispute over parties' enforceable rights in an employ
ment contract requires an exceedingly complex exercise in
interpretation a reflective attempt to discern, understand
and justify the basic principles

("themes") embodied in the

legal practices of contract.. Not surprisingly, the attempt at


understanding law in general will require interpretive analy
sis at a generality commensurate with the scope of its topic.
Interpreting law in its most general sense is the
primary task of a legal theory for Dworkin. This parallels
the interpretive process in the particular instance in that
it involves nothing less than the attempt at discerning, un
derstanding and justifying the "point or theme" of law as a
whole. This requires assuming a reflective position within
the regime of legal practice,

(in other words, as a partici

pant taking the "internal point of view"). This position must


be, at once, both explanatory and critical: it must seek both

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16

to describe the factual features of the law and to interpret


them in terms which portray the legal regime as a whole as
embodying in the most coherent way possible an underly
ing, systematic political morality.
The end-product of this sort of interpretive exercise is
a genuinely general theory of law which
must be abstract because [it aims] to
interpret the main point and structure of
legal practice... But for all its abstrac
tion, [it is a] constructive interpretation,
trying to show legal practice as a whole in
its best light, to achieve equilibrium be
tween legal practice as [it] find[s] it and
the best interpretation of that practice.26
But this, of course,

is the overall aim of a general theory

of law. It shows clearly Dworkin's basic presupposition: that


adjudication, because it exemplifies the operation of inter
pretation and justification, is the proper paradigm for
understanding law. A final question then remains to be
answered: What form will such a general theory of law take?

3. A Dworkinian Model of a Legal Theory

The aim of a legal theory is to develop through what


Dworkin has characterized as "constructive interpretation"
a coherent and 'consistent set of principles which both (a)
explains and (b) justifies legal practice. As theoretical
purposes

(a) and (b) seem naturally to divide along the now

familiar lines of the normative-analytical distinction:


explanation clearly being an analytical exercise,

justifica

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17

tion a normative or evaluative one. But for Dworkin, in a


constructive interpretation such as that involved in legal
theorizing, there is not

(nor can there be) a straightforward

gap between explaining/describing and justifying/evaluating.


Rather,

functions

(a) and (b) are mutually complementary com

ponents of the same process, each dependent upon the other


for its sense and its "ground" or foundation.
The difficulties in Dworkin's view of interpretation
will resurface shortly, particularly in chapters 3 and 4
below. At this point it suffices to notice another feature
relating to his conception of what a legal theory ought to
be. Namely, a theory such as the one being proposed here that
does not distinguish sharply between normative and conceptual
functions

(indeed, one that questions the possibility of such

a distinction)

is apt to be confused and disordered. How,

then, are the elements of such a legal theory to be orga


nized? What order and priority should be given to the various
concepts and principles employed in such a theory and to what
specific regions of legal practice should they be addressed?
These are largely questions of form. Surprisingly,
Dworkin provides a clear and direct response to them:
A general theory of law must be normative as
well as conceptual. Its normative part...
must have a theory of legislation, of adjudi
cation, and of compliance.27
Each of these major divisions represents a specific normative
perspective, that of lawmaker, judge and citizen
respectively.

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18

Corresponding to these three perspectives are three spe


cific sets of questions, each of which must be separately
accounted for in the theory:
[A]

A theory of legitimacy, which describes the circum


stances under which a particular person or group is en
titled to make law, and a theory of legislative justice,
which describes the law they are entitled to make...

[B]

a theory of controversy, which sets out standards judges


use to decide hard cases at law, and a theory of juris
diction, which explains why and when judges, rather than
other groups or institutions, should make the decisions
required by the theory of controversy...

[C]

a theory of deference, which discusses the nature and


limits of the citizen's duty to obey the law... and a
theory of enforcement, which identifies the goals of en
forcement and punishment, and describes how officials
should respond to different categories of crime or
fault.28

[A], [B] and [C] comprise distinct elements of a general


theory, at least in its normative part, but questions raised
within them need not be limited to just one part.
Consider,

for instance, the question of what constitutes

fairness in a judicial decision. Provisionally it might be


argued that it would be fairer (presumably because less arbi
trary) , if a particular court decision "represents the appli
cation of established standards rather than the imposition of
new ones."29 Just what such standards should be is a question
pertaining to the theory of controversy in adjudication. But
certainly a concern for consulting the intent of lawmakers
could figure in determining standards for decisionmaking.
Also relevant

(though not in exactly the same way) is the

question of the extent of the citizen's obligation to accept

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19

and abide by clearly controversial judicial acts. And these


concerns pertain, respectively, to parts

[B] and [C] of the

general theory.30
Even more crucial is the fact that fairness is also a
moral concept. Indeed, as an evaluative notion even of law
there seems no clear separation between the moral and the
specifically legal content of the concept of fairness. Hence,
in a very basic sense, the content of a general legal
theory's conception of fairness will be derived from a con
structive interpretation of a specific moral concept of fair
ness. Fairness will be embodied in various parts of the legal
theory in various ways,but overall will reflect a specific
moral view of the content of fairness. Again, the connection
of legal theory with an underlying moral theory is
inescapable.
One final point to consider in this connection, even the
largely conceptual question of what constitutes applying an
established adjudicative standard or how such standards are
to be identified in the first place belie connections with
underlying moral issues.
For example, if a judge's decision in a given case
clearly contradicts a line of past judicial precedent that is
unmistakably analogous to the instant case, the decision
could be criticized (evaluatively) as unfair. But this judg
ment ultimately turns upon specific conceptual questions in
the theory of legal reasoning; namely, upon an analysis of
the constraining power of precedent, upon specific interpre

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20

tations of the logical standards of consistency and coherence


in reasoning, even upon a criterion of relevance that appeals
ultimately to the validity of analogical reasoning. In this
sense, what is taken to count as "fairness" in judicial deci
sionmaking is equally dependent upon a conceptual analysis of
the established standards of adjudication and how they in
fact function in judges' actions.
There are two morals to be drawn from this brief exami
nation of the concept of fairness. One is fairly narrow and
of limited consequence; the other is of fundamental impor
tance to Dworkin's entire theoretical enterprise.
First, a comprehensive legal theory will be comprised of
numerous complex elements that are mutually interdependent.
So issues arising in one department of the theory

(e.g.,

fairness of adjudication in the normative portion of the


theory) may require for their solution reference to elements
in other departments of the normative portions of the theory
(e.g., fairness as embodying some reflection of the overall
theory's view of legislative intent). Moreover, the distinct
ly normative parts of the theory will be mirrored, in its
conceptual parts, by complementary analyses of the conceptual
elements for which the normative theory provides explicit
substantive content. To use one of Dworkin's own concepts
(the meaning of which will become clearer in subsequent chap
ters) , the concept of "legal right" is understood as
"whatever rights are sponsored by the principles that provide
the best justification of legal practice as a whole."31 The

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21

content of this concept

(i.e., the conception of a legal

right) in specific instances is provided by those normative


principles derived from a systematic political morality
that comprise the justification for legal practice.
The other moral here is crucial for understanding
Dworkin's dispute with traditional legal positivism for it
addresses the issue of the relation between the conceptual
and normative functions of legal theories.
The discussion earlier in this chapter of Sartorius'
standard model of a legal theory revealed that, from the per
spective of orthodox positivism, theorizing about law will
degenerate into confusion and incoherence unless a clear di
chotomy is observed between legal fact and legal value, or,
in other words, between the analysis of law and its critical
evaluation. For Dworkin, the positivists' approach results in
fragmentation. Since the evaluative and descriptive elements
of legal theorizing are effectively independent there is
therefore no means for unifying them into a coherent, overall
conception of law.
Dworkin's main point here is that the analysis of legal
concepts like right, adjudication and legal system, as well
as the criticism of existing regimes of rights, laws and ad
judicative practices, are essentially unified because both
contribute to an overall aim: a constructive interpretation
of legal practice in its entirety. And this interpretation
amounts to a systematic statement of how existing legal prac
tice reflects and embodies, in the most coherent manner pos

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22

sible, the past political decisions and basic moral convic


tions of the community governed by the practice. The form of
a legal theory, the complexity of its elements, even the re
lation between its conceptual and normative tasks, reflect
this overall aim.
Hart has characterized legal positivism as "the simple
contention that it is in no sense a necessary truth that laws
reproduce or satisfy certain demands of morality."32 In a
sense, Dworkin holds a reverse version of this "separability
thesis." For him, law is a practical means for interpreting
and institutionalizing a community's political morality.
Thus, unless a theory of law succeeds in both its normative
and conceptual components in articulating precisely this con
nection between legal practice and the political morality, it
will fail to capture what law is.
The issue between Dworkin and positivism is thus clearly
drawn. And since Hart's represents the most sophisticated and
plausible version of the positivist view, the significance of
Dworkin's claims can be tested by systematic comparison with
Hart.

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23

Chapter Two:
The Model of Rules

That legal positivism is currently the dominant theoret


ical view in the philosophy of law is hardly controversial.
From its loci classici in the works of Bentham and Austin to
its most sophisticated contemporary presentation in Hart's
The Concept of Law, positivism forms a set of related theses
comprising a systematic answer to the four basic conceptual
questions regarding law assayed in chapter 1. At the risk of
considerable oversimplification, positivisms answers to
these questions can be said to center upon a basic theme or
orientation: that law is best understood as those social
rules - essentially coercive and effective in regulating
human behavior - that are authoritatively recognized and reg
ularly observed within a community.33
Though various "positivists" incorporate this theme in
varying ways, it nevertheless expresses the core idea of what
Dworkin routinely refers to as the "ruling theory" in legal
philosophy.

The obvious question, then, is this: what

accounts for the strength and longevity of legal positivism's


"rule" over legal theory?
A partial answer to this question lies in the success
that positivist theories have had in first distinguishing and
then separately applying the discrete techniques of describ
ing and evaluating law. Moreover, most sophisticated versions
of positivism exhibit a continuity between their substantive

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24

claims about the nature of law and their supporting assump


tions, drawn largely from an empiricist metaphysics and a
philosophical methodology based in linguistic analysis. Both
of these features

(found in positivism's best representa

tives) show that the theory, despite the simplicity of its


elements,

is nevertheless internally coherent and philosophi

cally comprehensive. These features demonstrate as well posi


tivism's inherently controversial status - it rests ultimate
ly on methodological grounds which themselves are intensely
disputed.
But the main point here is that positivism's appeal as a
legal philosophy stems largely from its clarity and overall
simplicity. And Hart's version of positivism exemplifies just
these features more clearly and forcefully than any other.
Hence, Hart's positivism, as the leading representative of
the ruling theory of law, in great measure has established
the context within which all subsequent legal theorizing
takes place. Legal philosophy today (particularly in the cur
rently dominant Anglo-American idiom) is largely a critical
response, sympathetic or otherwise, to the form of legal pos
itivism developed in Hart's The Concept of Law. This is par
ticularly true of Dworkin's legal theory.
Understanding Dworkin requires initially a critical
appreciation of Hart's work. This is the main business of the
present chapter, though the task is approached in a two-fold
manner.

First, the chapter outlines the principal elements

of legal positivism as a general perspective in legal philos-

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25

ophy.

Second and more important, it examines Hart's powerful

version of positivism both

as a legal theory in its own right

and in its role as a target for Dworkin's criticism.


Dworkin's own theory can profitably be interpreted as a
"constructive" rejection of Hart's approach. It is essential,
then,

that one understands

what Dworkin rejects and why.

1. The Province of Positivism Determined

It is slightly paradoxical that despite legal posi


tivism's currency and numerous adherents, it is nevertheless
difficult to specify the essential elements of the theory.
Legal philosophies as diverse as those of Kelsen, Holmes and
Pound have been described (though not always accurately)

as

examples of legal positivism.34 Perhaps the most fruitful ap


proach in sorting out this problem of "doctrinal content" is
to attempt to isolate a set of propositions that expresses
legal positivism's core ideas - or, at the very least, propo
sitions that include the theoretical themes commonly encoun
tered in the writings of legal positivists.
Positivism begins

(historically as well as doctrinally)

with an essentially reductive tactic, defining jurisprudence


and its central object, law, in narrow, highly restricted
terms. Austin presents one of the first and clearest expres
sions of the "positivist" approach:
The matter of jurisprudence is positive
law... A law in the most general and compre
hensive acceptation in which the term in its

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26

literal meaning is employed, may be said to


be a rule laid down for the guidance of an
intelligent being by an intelligent being
having power over him.35
There is a polemical point to this conception of law,
one readily acknowledged by Austin. In order to render
jurisprudence "scientific" - that is, to place legal theoriz
ing on an objective, value-neutral plane - the concept of law
itself must be rescued from its confused identification with
morality, a theoretical view represented in Austin's time by
Blackstone.36
Moreover, this concern for demarcating the separate
provinces of law and morality reveals the theoretical impor
tance of positivism's preoccupation with the sources of law.
Though both law and morality share the character of being
systems of action-guiding rules, law's distinguishing feature
(for Austin as well as for subsequent positivists)

is its

having been "laid down" by some authoritative source. Laws


are, in a sense, "brute social facts,"37 which owe their exis
tence to specific, intentional acts

(legislative or judicial)

of specific individuals and institutions within the


community. In cruder terms, where morality may be a matter of
social and cultural belief deriving from a multitude of
sources, law is a matter of determinate, social fact.
Austin identified the "authoritative source" of the law
as the political sovereign, a person or persons habitually
obeyed by the members of the community but who owe no obedi
ence to any other persons. Moreover, in making law the

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27

sovereigns "intentional act" is to command his political


subordinates, backed by the threat of coercive sanction for
non-compliance.38 But these elements of Austin's theory, far
from defining legal positivism as such, merely describe a
specific variant of it, the "imperatival theory of law."
Austin is arguably the historical progenitor of the pos
itivist tradition in legal philosophy.39 His theory also con
tains many of the familiar conceptual rudiments of present
day positivism: the conception of law as behavior-guiding
rule, the separation (in source if not in content) of law and
morality, the analysis of legal validity in terms of authori
tative origin. But Austin's central thesis - that law is the
command of the sovereign - has largely been abandoned by con
temporary adherents of the tradition. At best Austin's theory
provides no more than a point of departure for analyzing the
"core" of legal positivism.
Is there, in fact, any doctrinal core of legal posi
tivism? That is, are there any propositions that must be held
if one is a legal positivist? Hart himself posed this ques
tion in an early article40 and proposed to answer it by con
sidering the various meanings attached to 'positivism' in the
literature of jurisprudence. Close attention to his comments
on these points serves at least two purposes: both to clarify
the meaning of positivism in general and (in passing) to
illustrate some features of Hart's own version of the theory.
Hart cites five possible candidates for "core doctrines"
of legal positivism:

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28

(1)

laws are commands of human beings;

(2) there is no necessary connection between law and


morals or law as its and as it ought to be;
(3) the analysis

(or study of the meaning) of legal con

cepts is (a) worth pursuing and (b) to be distin


guished from historical inquiries into the causes or
origins of laws, from sociological inquiries into
the relation of law and other social phenomena,

and

from the criticism or appraisal of law whether in


terms of morals, social aims,

"functions" or other

wise;
(4)

a legal system is a "closed logical system" in which


correct legal decisions can be deduced by logical
means from predetermined legal rules without refer
ence to social aims, policies, moral standards,
etc.;

(5) moral judgments cannot be established or defended,


as statements of facts can, by rational argument,
evidence, or proof. 41
Viewed in light of Austin's historical statement of the
theory, each of these propositions seems to capture the pre
vailing "spirit" of legal positivism. But are any of these
logically necessary components of a genuinely positivistic
legal theory?
Proposition

(1), a loose statement of the imperatival

conception of law, is the most obvious residue of Austinian


positivism. But it is narrow and inadequate as a conception

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29

of law since its fundamental notion,

'command,1 cannot ac

count for the variety of forms that law commonly takes.


The imperatival conception can be expanded by including
reference to the scope and source of laws, their coercive
character and accompanying social habits of obedience; law is
then understood as "general orders backed by threats given by
one generally obeyed."42 Even so, this more complex conception
still fails to capture the full range of forms of law.
As an example, Hart cites certain legal rules which un
derlie the exercise of legislative functions. Consider, for
example, that part of Article 1 of the U.S. Constitution
which apportions to the House of Representatives the respon
sibility for originating all "revenue-raising" legislation.43
Such a rule clearly seeks to regulate the manner in which a
specific aspect of legislative power is exercised. Just as
clearly, this particular rule fails to reproduce the form
(coercive command) required by the imperatival theory of law.
As Hart comments,
there is a radical difference between rules
conferring and defining the manner of exer
cise of legislative powers and the rules of
criminal law, which at least resemble orders
backed by threats.44
Two obvious conclusions can be drawn here. First, legal
positivism need not be committed logically to the clearly de
fective command conception of law - this even given posi
tivism's distinctive emphasis on the source of law. And sec
ond (as will become clearer in sections 2 and 3 below),

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30

Hart's own version of positivism centers upon the founda


tional concept of 'rule,' a more promising way of character
izing law's basic features than 'command.'
Proposition

(4) states that legal systems are self-con

tained - i.e., their contents

(legal rules) are sufficiently

clear and explicit in meaning and are related to each other


in an internally coherent scheme such that correct decisions
can be reached, even for factually novel cases, merely by
applying techniques of logical deduction. In other words,
judges can find all the resources necessary for generating
legal decisions within the legal system itself by consulting
existing legal rules and (unproblematically)

"applying" such

rules to relevant particular cases. Extra-legal resources e.g., political values, moral standards or the aims of social
policy - are neither desirable or necessary for generating
purely legal outcomes.
This rather rigid portrayal of law as a gapless logical
system, capable of operating by mechanical deduction, is
often associated with Kelsen's version of positivism.45 Cer
tainly this view emphasizing law's systematic character is
consistent with positivism's general theme of preserving the
separateness of law and other systems of rules and practices,
most notably morality. But positivism is in no way logically
committed to either this view of the internal structure of
legal systems or to the accompanying "mechanical" depiction
of adjudication.

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31

As Hart points out, even cursory attention to the lan


guage in which legal rules are expressed reveals that adjudi
cation can seldom be merely the mechanical, formal applica
tion of rules to cases. Rules as such are expressed in gen
eral terms, and "in all fields of experience, not only that
of rules, there is a limit, inherent in the nature of lan
guage, to the guidance which general language can provide."46
General terms are vague47 - there will always exist cases in
which it is indeterminate whether or in what way a given gen
eral term applies. For example, consider an ordinance that
prohibits operating vehicles in city parks after 6 pm.

The

rule appears to express a prohibition according to which a


certain standard type of "wheeled conveyance," namely motor
vehicles are not to be operated. But the term 'vehicle' is
vague. So it is not clear, given the resources provided for
interpretation within the rule itself, whether and, if so, in
what way, the rule applies to bicycles, skateboards, or an
entire range of non-standard wheeled conveyances.48
Moreover, the fact situations themselves - the particu
lar cases to which general rules are intended to apply - "do
not await us already marked off from each other, and labelled
as instances of the general rule."49 Plainly, the indeter
minacy of legal rules, a consequence of the vagueness of
their general terms, requires the exercise of interpretation
as a basic feature of adjudication. But
logic does not prescribe [the] interpretation
of terms; it dictates neither the stupid nor
the intelligent interpretation of any expres-

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32

sion... Logic is silent on how to classify


particulars - and this is the heart of a
judicial decision.50
Indeed, it is not mechanical deduction but (frequently) the
judge's attention to what he deems the social aims and pur
poses envisaged by a legal rule that "prescribes his inter
pretation" and, thus, his application of the rule.
Interestingly, the traditional positivist claim that law
and morality are separate does not conflict here with the in
sistence on the necessity of interpretation in applying legal
rules. In fact, these two points taken together enable legal
positivism to achieve an added dimension of clarity in its
account of legal adjudication - as will become clear in sec
tion 3 below.
If interpretation is inescapable in adjudication,

"the

separation thesis" makes possible a sharper distinction among


the various resources, both legal and extra-legal, available
to judges in interpreting the law. Further, the linguistic
distinction between determinate instances in which a general
expression clearly applies and indeterminate instances in
which its application is uncertain allows legal interpreters
themselves to decide

(a) in which instances resort to some

extra-legal resource is needed and (b) in cases in which


extra-legal resources are needed, what type of extra-legal
resource

(e.g., social aims, community moral standards) would

be most useful and appropriate. Indeed, a legal theory that


embodied some form of the separation thesis could not, with-

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33

out sacrificing its coherence, hold to a formalized, mechani


cal view of adjudication.
These considerations paint a picture of legal positivism
in which the separation thesis plays a crucial, almost a
defining role. But the narrow claim that a rule can be a law
even though it fails to satisfy any moral standards - and
this is the essential content of the separation thesis - is a
rather slender foundation for the whole of legal positivism.
The actual function of the separation thesis becomes clearer
in considering the remaining propositions Hart's list.
For purposes of economy the other three claims given in
Hart's survey [propositions (2),

(3) and (5)] will be dubbed

respectively,
(2) the separation thesis,
(3) the distinction between the conceptual analysis of
law and other critical, evaluative or descriptive
studies of law, and
(5) the non-cognitivist thesis in ethics.
At first, there seems little to suggest any obvious log
ical connections among these claims. And yet, by clarifying
these claims, two facts become clear:

(a) while legal posi

tivism is not committed to a form of moral skepticism,

such

as that represented by ethical noncognitivism, positivism's


status as a philosophical theory about law requires that it
offer some account of the status of morality; and (b) the
separation thesis and the notion of a purely analytic

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34

jurisprudence does, with some supplementation, provide a


largely accurate statement of positivism's basic tenets.
First, consider the separation thesis. It appears in the
writings of virtually all positivists, but seldom is its
meaning or form the same. The canonical form51 of the thesis
is given in the Concept of Law, in Hart's often-cited sugges
tion that legal positivism be "summarized" by
the simple contention that it is in no sense
a necessary truth that laws reproduce or
satisfy certain demands of morality, though
in fact they have often done so.52
As a summary of legal positivism this is as interesting for
what it excludes as for what it includes.
Hart's basic point seems to be this: if positivism's
central claim is that law and morality are separate, it is
important to take care in formulating the most plausible
meaning of that claim. The separation thesis must be viewed
against the backdrop of some incontestable facts about the
relations between law and morality. First, morality and law
share some important basic features, both are systems of
rules for guiding conduct; both incorporate distinctively im
perative and prescriptive concepts and locutions

(ex.,

'ought,duty,11 right'). Moreover, the historical development


of law has,

"in all times and places, been profoundly influ

enced by both the conventional morality and ideals of partic


ular social groups."55 Many existing valid laws

(ex., the

Fourteenth Amendment to the U.S. Constitution) have an ex


plicitly moral content.54

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35

In view of all this, the claim that law and morality are
"separate" can only mean that the two are conceptually dis
tinct - i.e., law and morality, though their content may
often coincide, are not logically identical or logically
interchangable. This claim can be restated in various ways
each of which expresses a slightly different shade of mean
ing. Thus, the validity

(as well as the identity)

of the laws

of a given community can be established independently of the


community's moral beliefs and practices. Moreover, morality
provides no test for whether a given rule is a rule of law:
first, in the absence of an expressed consti
tutional or legal provision, it could not
follow from the mere fact that a rule vio
lated standards of morality that it was not a
rule of law: and, conversely, it could not
follow from the mere fact that a rule was
morally desirable that it was a rule of
law.55
The conceptual separation of law and morality is thus
the ultimate terra firma of legal positivism. The theory's
other, more elaborate claims, such as substantive claims re
garding what law is. (and Hart's concept of law as the union
of primary and secondary rules is a good example), require
that the conceptual distinction between law and other systems
of social control already be clearly drawn.
Equally necessary is some measure of methodological
clarity.

Law's conceptual distinctiveness implies both the

possibility and desirability of approaching law from a


"purely analytical" point of view, that is, that there be a
"study of legal concepts...

[and] of the meaning of the dis

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36

tinctive vocabulary of the law" which is distinct from socio


logical, historical and even critically evaluative perspec
tives on law.56 This notion of an "analytic jurisprudence" em
bodies the content of proposition (3) by stressing the dis
tinction between the conceptual analysis of law and other,
mostly evaluative, studies of law. And this proposition de
serves inclusion in the doctrinal core if only because it
represents the methodological implication of the separation
thesis.
A legal theory

(like positivism) that requires that law

be clearly identified as a distinct social phenomenon will


also require that the concepts of law be clearly delineated.
Positivists in general have endorsed an analytic jurispru
dence; hence, contingently at least, it is a basic ingredient
of positivism. But the claim here is that, because of of the
separation thesis and in order to maintain its own coherence,
positivism is logically committed (at least in principle) to
a "value-neutral" analysis of law. As Lyons rightly observes,
it is not self-evidently clear just what such a value-neutral
analysis would amount to.57 But consistent with positivism's
core idea of distinguishing law and morality, analytic
jurisprudence is value-neutral when its elucidation of the
conceptual framework of law presupposes no specific moral or
evaluative standards for its adequacy as a conceptual analy
sis. If the separation thesis is correct, an analytic
jurisprudence of this sort is a clear requirement for a com
prehensive positivistic theory of law.

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37

One final candidate remains in Hart's "survey" of legal


positivism's core doctrines: the noncognitivist thesis in
ethics. Clearly, positivism's claim that law can be distin
guished from morality presupposes some conceptual means of
identifying and explaining morality as well. Legal theory
requires a corresponding moral theory in this respect. But is
legal positivism committed, because of its views about the
nature of law, to some specific theory about the nature of
morality?
Hart notes that the positivist insistence on the dis
tinction between law as it is and as it ought to be has led
to the theory's confusion with a moral theory, ethical
noncognitivism,
according to which statements of what is the
case belong to a category or type radically
different from statements of what ought to
b e .58
The latter category,

"value statements," are explained by

noncognitivists as expressions of feeling, emotion or atti


tude. Moreover, the point of value statements - containing as
they do such noncognitive components - is merely to express
such emotions or to get others to share in them. And the rad
ical distinction between factual and value statements implies
further that
judgments of what ought to be done... cannot
be argued for or established by rational
methods as statements of fact can be, and
cannot be shown to follow from any statement
of fact but only from other judgments of what
ought to be done in conjunction with some
statement of fact.59

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38

The fact-value distinction in ethical noncognitivism


neatly parallels the law-morality distinction in legal posi
tivism. Moreover, some legal positivists - notably Kelsen have explicitly embraced noncognitivism. So the "confusion"
Hart notes is understandable.60 It may well be that such con
fusion is actually a mistaken identification of legal posi
tivism with logical positivism - which includes a form of
noncognitivism as an explicit doctrinal element.61
But as Hart points out there is no logical connection
between the separation thesis in legal theory and the noncognitivist analysis of morality. The identification of what
constitutes the legal system of a community must, according
to the separation thesis, be possible by appeal to criteria
(e.g., "authoritative origin") that are distinctively legal.
A

community's moral beliefs, as well as the political and

other critical standards brought to bear on the evaluation of


its legal system, cannot figure as criterial means of identi
fying the law in the first place. Nor does this separation
imply anything about the substantive content of a community's
moral beliefs or, more important, the best available theoret
ical account of morality as such.
There is, however, one substantive implication about
moral theory derivable from the separation thesis. No form of
natural law moral theory in which moral terms are simply
interchangeable with legal terms would be consistent with the
separation thesis and, thus, with a positivistic legal
theory. It would be conceivable,

for example, that such a

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39

theory would propound a moral analysis of 'justice' as


'equality of treatment' of all relevantly similar persons.
But if this moral notion were made the standard not just for
evaluating laws but for identifying certain rules ^s. valid
laws, its use in this way would violate both the letter and
spirit of the separation thesis.02
Clearly, if there is any overall point to the separation
thesis it consists in providing a distinct point of view out
side of law from which critical evaluation of law can be
made. Assigning this sort of role to morality is meaningful
only if morality has some discernible substantive content to
inform and support extra legal-evaluations.
The "fathers" of positivism - Bentham and Austin - pro
vided this content for morality with a form of metaethical
naturalism and a normative theory that "cashed out" moral
ity's fundamental concepts

(e.g.,

'good,'obligation') in

terms of 'utility.' But Hart, responding to the tremendous


amount of criticism that utilitarianism has had to face over
the years, is more cautious in aligning conceptual legal pos
itivism with normative utilitarianism. In particular, Hart
recognizes the need to accommodate natural law in devising an
adequate set of normative standards for the criticism of
law.63 Nevertheless, Hart himself believes that utilitarianism
provides the most illuminating normative perspective on law.
It is worth noting in passing here that Dworkin's celebrated
endorsement of a rights-based, normative perspective on law

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40

is very much at odds with positivism's utilitarian perspec


tive.
As a conclusion to this doctrinal "survey" we can give
the following general description of legal positivism: a com
munity's law consists of that set of rules which is (1) most
widely observed and is supported by coercive sanctions,

(2)

whose validity is determined by reference to its source in


authoritative enactments,

(3) which is distinct from but in

fact shares content with the community's prevailing morality,


and (4) which is susceptible of both analytic description
(from within)

and normative appraisal

(from without).

Though this may constitute legal positivisms doctrinal


"core," it excludes from consideration those issues in
"general philosophy" - notably, questions of epistemology,
the philosophy of language and the metaphysical status of
values - that Dworkin sees as unavoidably integral to any
complete theoretical account of law. Part of the persuasive
force of Hart's legal theory lies in his sensitivity to just
these largely philosophical issues. His concept of law is
more than simply a sophisticated expression of the core of
legal positivism. It is also an attempt to draw upon other
areas of philosophy in order to solve some persistent concep
tual problems of law. So a brief review of these
"philosophical underpinnings" opens our discussion of Hart's
legal theory.

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41

2. A Philosophical Preliminary

Legal philosophy can be seen in two ways. First, there


is the traditional view defined by a group of "perennial
problems" that arise from philosophical thinking about law e.g., the law-morality relationship, the nature of legal
obligation, the legal meanings of such concepts as liberty,
justice and responsibility. These problems are narrower ver
sions of some of the larger perennial problems of philosophy
proper,

(e.g., the nature of 'obligation' as such), larger

problems because their scope intersects with the more spe


cific concerns of the law. Solving these purely philosophical
problems will in turn illuminate and dissolve the specifi
cally legal versions of them.
But there is a second approach to legal philosophy,
namely one of methodology. This approach to legal philosophy
encompasses the narrower, problems oriented approach.
It is the second approach that Hart adopts in The Concept of L a w . The methodology he employs is the type of lin
guistic analysis inspired (though in somewhat different
directions) by J.L. Austin and Wittgenstein. For Hart, this
linguistic philosophy [is] conceived as an
elucidation of the multiple forms and diverse
functions of language..., Its insights and
illuminations were available for the clarifi
cation not only of the discourse of everyday
life but of any discipline at the points
where there were reasons for thinking that a
failure to grasp the differences between one
form of discourse or another, which were
often concealed by identical grammatical

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42

forms, have produced perplexity or


confusions.64
This philosophical method has obvious applications to spe
cific problems in legal theory, such as the standard defini
tional question,

"what is law?"

Less obvious but no less important to Hart's philosophi


cal theory of law is the clear compatibility of the linguis
tic-analytic method with a program in jurisprudence, inaugu
rated by Bentham, that seeks to illuminate and organize law
by systematically clarifying its distinctive language.65 This
program is inseparable from some sort of account of linguis
tic meaning and, ultimately,

from a comprehensive metaphysi

cal theory - in effect, an account of the status of the


referents of legal language. According to Hart, Bentham made
significant contributions of his own to the required linguis
tic theory. He found the needed metaphysics in the skeptical
empiricism that dominated British during his lifetime.
An illustration of this approach is Bentham's theory of
"legal fictions." For Bentham, the law "constructs" ficti
tious entities - e.g., rights, privileges, property - to
serve as referents for these terms in legal discourse. His
view here is an application of his wider metaphysical nomi
nalism: class terms and words representing qualities and
relations refer not to real entities

(which are ineluctably

individual particulars) but to constructed fictions. Recogni


tion of this basic metaphysical distinction has enormous im
port for jurisprudence; in effect, it defines the role of

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43

jurisprudence. If (as Bentham claims) the general task of


metaphysics is to clarify the real meanings of our words, the
purpose of a metaphysical jurisprudence is to demystify and
clarify legal language by discovering in actual persons,
things and relations the referents for the law's terms.
Hart's inspiration (particularly in The Concept of Law)
is his recognition that Bentham's program of analytic
jurisprudence is more consistent and powerful when armed with
a coherent linguistic method and metaphysical theory such as
that provided by the philosophy of linguistic analysis. But
what precisely is the linguistic method Hart employs, and
what specific role does it play in his legal philosophy?
In simplest terms Hart's method involves a special
attention to the variations of form and function in legal
language and, even more important, a basic working assump
tion, that philosophical problems are largely confusions re
sulting from insufficient appreciation of these nuances of
discourse. Specifically, Hart applies two key ideas about the
analysis of language to the narrower task of elucidating
legal discourse:
(a) J.L. Austin's recognition that utterances may them
selves perform certain acts rather than simply
report or describe facts and, further, that a single
linguistic expression may serve simultaneously to
accomplish a variety of purposes

(illocutionary

acts) and produce a variety of effects


(perlocutionary acts) in its hearers.66

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44

(b) Wittgenstein's celebrated dictum that the meaning of


an expression is a function of its use, along with
the subsidiary claims that, for many general terms,
no definition stipulating the necessary and suffi
cient conditions for their application is to be
found and, given this, the meaning and application
of many such terms will be ineluctably indeterminate
- clear in certain "central" instances but vague in
"borderline" cases.67
Hart employs each of these analytic "tools" in his
analysis of the concept of 'law' itself.
For Hart, traditional analyses of legal termsrelied
upon an equally traditional method of definition, per genus
et differentiam. A natural assumption of this method is that
legal terms stand for or describe certain readily ascertain
able things, facts or relations in the world - in short, that
the meaning of legal terms must be denotative. But careful
attention to the actual use and contexts of legal terms, as
well as the "different ways in which the several instances of
[such] general terms may be related," are sufficient to ren
der dubious the "uncritical belief that if a general term...
is correctly used then the range of instances

towhich it is

applied must all share 'common qualities.'"68


The concept of law itself is no more susceptible of sim
ple definition per genus et differentiam than any other con
cept likely to appear in legal discourse. Consider two very
different attempts at defining 'law:'

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45

a.

Law is the coercive command of the sovereign.

b.

Law is the prophecy of what the courts will


decide.69

For Hart, both are mistaken definitions though they err in


different ways.
(a.) is Austin's formula and its errors as a general
conception of law are well known from section 1 above. But it
is also guilty of a methodological mistake. This type of def
inition assumes "a wider family or genus, about the character
of which we are clear, and within which the definition
locates what it defines."70 If the "wider family" here is
taken to be "command," we are no more illuminated about law's
uniqueness: morality, etiquette, even the rules of parliamen
tary procedure speak in the imperative mood as well. More
over, Austin's formula fails to cover all the instances of
use of the term 'law' found in ordinary discourse or even
legal practice, Hart's "secondary rules" being an apt example
here.
(b.) can be interpreted two ways. First, it can be read
as a baldly rhetorical expression of rule skepticism, the
claim that "talk of rules is myth, cloaking the truth that
law consists simply of the decisions of courts and the pre
diction of them."71 Second, it states that the practical value
of all that is designated as "law" is its use in predicting
the behavior of legal institutions. On either interpretation
it is a mistaken definition of law for Hart.

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46

On the latter sense, it proposes an impossibly narrow


conception for any adequate theoretical account of law. It is
more seriously mistaken on the former interpretation. For in
denying that rules are important features of law, it requires
us to ignore some of the incontestable facts about the actual
use of the term 'law.1 Reference to rules frequently (though
not always)

accompanies use of the term "law." Rules link the

diverse uses of the term in both legal and non-legal dis


course. "Rules" represent a central, indisputable meaning of
the word 'law,' though this fact by no means excludes the
possibility of less clear, "borderline" uses of 'law.1 Though
'law' and 'rule' are by no means synonymous terms, any pur
ported analysis of the meaning of 'law' that proposes to
ignore their clear and frequent linguistic linkages is obvi
ously defective.
Hart uses such techniques of linguistic analysis
throughout his work, and usually to similarly salutary
effect. But a final methodological point deserves to be
raised here. These and other linguistically-based conceptual
analyses share a common background assumption: linguistic
analysis can achieve valuable results because it appeals to
criteria derived from the shared social context of meaning
and practices within which language use takes place. In
short, such analysis can achieve a measure of objectivity
because its solutions to conceptual puzzles are based upon
careful description and elucidation of the roles concepts
play in public, communal "forms of life."72

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47

This point is of more then exegetical interest, for it


emerges in similar form in Hart's legal philosophy. Questions
about the meaning of the concept of law are susceptible of
objective answer by appeal to facts about the function of
'law' in legal and non-legal discourse. The existence of
shared criteria for the use of 'law' - relatively clear and
discernible through the careful analysis of discourse and its
multiple contexts - provides clear central tests for what law
is and, as well, helps to illuminate the less straightforward
"penumbral" uses of the term 'law.'. Providing factual
grounds for determining what law is renders questions regard
ing judicial interpretation - in which these "grounds" are
explicitly called into play - far simpler and clearer.
Too simple, in Dworkin's view. For the "semantic theory
of law" Hart presents - an attempt "to identify the hidden
ground rules that must be there, embedded though unrecog
nized, in legal practice"73 - ignores the complexity of the
law as a social system. Further,
related,

since law is essentially

for Dworkin, to other types of social belief and

practice - e.g., political morality - the complexities of


judicial interpretation are equally oversimplified by such
"semantic" theories.
These are questions to be aired more fully in chapter 3.
What remains for consideration here are the substantive ele
ments of Hart's theory of law. In what way does Hart make use
of the techniques of linguistic analysis to give his unique

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48

and powerful expression to the doctrinal core of legal posi


tivism?

3. Law as a System of Rules

Many of the details of Hart's legal theory have already


been mentioned in the preceding discussion. In what follows
it will often suffice merely to summarize Hart's view, while
placing special emphasis on those elements of Hart's posi
tivism that have provoked Dworkin's criticism. Hart's account
of law can be fairly accurately sketched by reference to
three basic, organizing ideas that comprise the framework of
his theory:
[A]

The most important

(i.e., "central")

feature of law and

legal systems is the notion of a "rule," which serves


not only to illuminate and characterize law but is also
a conceptual link showing the connections between law
and other systems of social practice.
[B]

The complexity and systematic character of legal systems


stem from the complexity and continually changing char
acter of society,

features that law must reflect if it

is to be effective; hence, law is most accurately de


picted as the union of two types of rules: primary rules
of obligation and secondary rules of change, recognition
and adjudication.
[C]

In light of [A] and [B], legal reasoning is essentially


reasoning with and about rules, and just as rules in

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49

general suffer from various defects and limitations, the


law is similarly afflicted and requires at certain
points judicial interpretation and even revision.
Mentioned nowhere in this framework are the core doctri
nal elements of legal positivism: the separation thesis, ana
lytical jurisprudence, etc. These core ideas are not thereby
relegated to the background of Hart's theory; rather, they
are so interwoven into the fabric of his specific views that
they define the general point of view he takes on the law.
This aspect of Hart's theory will emerge as each part of this
framework is considered in turn.
'Law,' of course, cannot be defined simply or strictly;
careful notice of the multiple uses of the term reveals this.
'Law' is for Hart a "family resemblance" concept the meaning
of which is best elucidated by distinguishing some central
feature of its use that connects the multiple ways in which
the concept actually functions.74 In the case of the concept
of law, this central, linking feature is the notion of a
rule.
Two traditional positivist analyses of the legal meaning
of 'rule' - the coercive command and predictive models - can
be readily dismissed. Rules are neither general orders backed
by threats nor predictive guidelines based on empirical gen
eralizations about the past behavior of officials or institu
tions.

To so view rules is to take a purely external,

"observational" perspective on them. But what is central to

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50

the meaning of social rules is their internal dimension, evi


denced by
a critical reflective attitude toward [rulegiven] patterns of behavior as a common stan
dard, and that this should display itself in
criticism (including self-criticism), demands
for conformity, and in acknowledgement that
such criticism and demands are justified, all
of which find their characteristic expression
in the normative terminology of 'ought,1
'must,' and 'should,1'right1 and 'wrong.'75
Only when,

in addition to a general compliance with cer

tain standards of conduct, members of a society also adopt


this "internal point of view" toward such standards, can a
genuine social rule be said to exist, for Hart. Such rules
impose obligations on the members of society when the general
demand for rule conformity is "insistent" and the social
pressure brought to bear (e.g., criticism, physical sanc
tions) on those who either deviate or are likely to is great.
On this analysis of rules, other rule-centered systems
of social practice have clear affinities with law - notably
morality, which is similarly characterized by the various
features of the "internal point of view." There is also the
shared terminology of law and morality, all of which indicate
at least contingent connections between the t w o . Given Hart's
endorsement of the separation thesis, there must be some ele
ments specific to law that indicate its conceptual

(if not

empirical) distinctness from morality. These uniquely legal


features can be brought out by considering the "complexity"
of legal systems.

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51

The paradigm case of a social rule for Hart is a primary


rule of obligation. Such rules enjoin specific types of be
havior "thought important because they are believed to be
necessary to the maintenance of social life or some highly
prized feature of it."77 It is conceivable for a social struc
ture to be comprised only of such primary rules, so long as
the community is simple and closely knit and its environment
relatively free from change. So rudimentary a set of rules
would suffice to maintain the cohesion of a primitive soci
ety.
But in circumstances of greater communal complexity or
in a less stable social environment, a regime of primary
rules would quickly break down, a victim of three specific
defects. First, as unanticipated social situations multiply,
uncertainty will arise as to the identity, meaning and scope
of the rules. Second, since primary rules have a customary or
informal source, they are relatively static in character; any
change in rules can result only from slow processes of growth
and decay ill-adapted to dealing with changing social circum
stances. Finally, only diffuse social pressure can maintain
compliance with a regime of simple primary rules, and there
is no designated agency empowered to determine when rule vio
lations have occurred. Hence, the simple regime will lapse
into inefficiency.
The effectiveness of law depends upon its capacity for
adaptation to its social environment and its reflection of
the complexity of the society it seeks to regulate. Hence,

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52

the defects of a regime of primary rules may be remedied by


introducing secondary rules - mechanisms for such
"adaptation" - which in turn account for the complexity of
law as a system of rules.
Uncertainty may be remedied by adoption of a "rule of
recognition" which specifies some set of features by which
legitimate primary rules may be authoritatively identified.
The static character of law is remedied by introducing sec
ondary rules of change which stipulate the authorized mecha
nisms and procedures for alterations of primary rules. Fi
nally, the inefficiency of a set of simple primary rules is
remedied by rules of adjudication which designate agencies
(and procedures)

for determining when legal rules have been

violated and also provide for enforcement. Each of these


types of secondary rules deserves some comment.
In his rules of recognition Hart presents his version of
the distinctive positivist account of legal validity - i.e.,
validity analyzed in terms of origin in some authoritative
source or enactment. The rule of recognition indicates the
common "mark" that identifies a given rule as an element of
the system - namely, that it satisfies the system's internal
criteria for the legitimate manner of adopting, developing or
altering rules. In complex legal systems rules of recognition
will be correspondingly complex; rules mentioning legislative
enactment and judicial precedent may both function as author
itative criteria for validity though not in every context and
not with equal strength. Rules of recognition will also be

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53

arranged hierarchically in order of authoritative precedence,


culminating in an "ultimate rule of recognition" whose crite
ria for validity are acknowledged as "supreme."78 Under the
American legal system, for example, an ultimate rule of
recognition (though complex) would basically comprise crite
ria for constitutionality by reference to the federal consti
tution.
Rules of change and adjudication, besides providing
mechanisms for rendering law more efficient and adaptable,
also create legal institutions such as courts,

legislatures

and agencies for executing and enforcing law. In doing so,


such rules build into the law the "jural complexity"79 found
in all advanced legal systems. Importantly, the validity of
legislative or judicial acts is, like any other element of
the system, determined by reference to the criteria provided
in the system's rules of recognition.
Hart's fully analyzed concept of law, then, is captured
in the formula: law is the union of primary and secondary
rules. Recalling the "four basic questions" model of a legal
theory from chapter 1, we can say that law's nature is that
of a union between two logically different but complimentary
types of rules. And the cement of this union is the common
criteria of validity given in the legal system's rule(s) of
recognition. Hence, questions concerning what makes a law
valid and what makes law a system have the same answer: the
common criteria for determining the authoritative source or
origin of law.

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54

This leaves a fourth question to consider:

"what is a

good reason for a legal decision?" This speaks to Hart's


account of legal reasoning, the third organizing idea of his
theory of law. But one final question about legal rules
merits comment before proceeding: Apart from the obvious pos
itivist concerns over the authoritative source and (to use
Dworkin's term)

"pedigree" of rules, must a legal system's

rules embody any specific, necessary content?


Despite his endorsement of the conceptual separation of
law and morality, Hart believes that legal systems must have
a "minimum content" which is substantive, not merely formal.
Moreover, this content is provided by "elementary truths
about human beings, their natural environment, and aims"
without which the "minimum purpose of survival which men have
in associating with each other" could not be fulfilled.80
The rules of both law and social morality must take
account of, if only for the sake of effectiveness, truths
about the physical vulnerability of human beings, their
approximate physical and intellectual equality, their limited
altruism,

foresight and self-control. Rule governed systems

of social control must. then, make provisions for protecting


persons and their possessions, curbing or channeling the
self-interest of individuals, and demanding of individuals a
minimal level of mutual respect for the interests of others.
Given the human and societal interests served by law, its
rules must include such content.

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55

Does this imply a connection between law and morality?


Yes, for Hart; though the connection is only, in his phrase,
"contingently necessary." These truisms about human beings
and their environment are only contingently the case, since
human beings could be (and may become) different. But given
such truths, and given the law's social purposes, an effec
tive system of legal rules must contain rules in conformity
with the "core of good sense" found in traditional natural
law thinking. It should be noted that Hart charts a perilous
course here, flirting with (if not lapsing into)

inconsis

tency with the separation thesis. For if the content of law


must satisfy some moral criteria, however minimal they may
be, to what extent can law be conceptually distinct from
morality? As chapters 3 and 4 will show, this question is yet
another one which Dworkin presses in his critical analysis of
legal positivism.
Moreover, Dworkin, though armed with a substantially
different basic conception of law than Hart, similarly argues
for a connection between law and morality: law requires as
its moral "underpinning" a systematic justification of itself
in terms of the community's prevailing political morality.
Neil MacCormick has correctly observed that "a theory of
legal reasoning requires and is required by a theory of
law."81 Hart's account of legal reasoning is more clearly
related to his conceptual account of law than in most theo
ries: if the central conceptual feature of law is 'rule,'
legal reasoning is largely reasoning with and about rules.

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56

Moreover,

legal reasoning is the nodal point for much of

H a r t s most illuminating employment of his explicit philo


sophical methodology. For the peculiarities of legal reason
ing are largely a result of the problematic logical and lin
guistic characteristics of rules features most readily
revealed by Hart's brand of linguistic analysis.
The claim that legal reasoning is reasoning about rules
suggests a very simple, straightforward model of this pro
cess. Rules are essentially "explicit general standards."82
These standards

(in most cases) concern a general type of

factual situation and enjoin, upon the actual occurrence of


such a situation,

a specific type of behavior.

The simplest picture of legal reasoning, then, is the


following: the rule describes a factual situation and certain
behavior is prescribed in that situation; and the rule itself
is used to guide such behavior in that situation. This model
of legal reasoning applies to the individual who stops his
car at a red light, correctly viewing his situation as
falling under the appropriate traffic regulation. It applies
as well to the judge who decides a specific legal- dispute by
determining that the facts of the case, by virtue of their
resemblance to the verbal description in a specific legal
rule, fall under that rule

(whether the rule is derived from

explicit statute or past judicial precedent does not alter


the process of reasoning employed).

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57

This model depends upon the ready applicability of gen


eral description to particular circumstances. There are such
clear, "plain cases,
where the general terms seem to need no
interpretation and where the recognition of
instances seems unproblematic or 'automatic'
... where there is general agreement in
judgments as to the applicability of the
general classifying terms.83
The rule,

"All vehicles must stop at traffic lights," is

surely one such case. In these instances - "easy cases" - the


meaning and identity of the relevant legal rule is settled
and clear. Moreover, the process of applying it is routine
and mechanical.
But as was discussed at length in section 1, legal rules
- by virtue of the indeterminacy of their general terms - are
inescapably vague. Legal rules are thus irreducibly vague and
this limitation emerges not in the uncontroversial central
case, but at the borderline where legal disputes often turn
on an interpretation of the meaning of a rule's terms - and
of what type of factual situation it is meant to describe. It
will be useful to examine briefly some ways in which legal
rules are indeterminate and how this affects Hart's concep
tion of adjudication.
Legal rules

(and other rules as well) often function by

exploiting the clarity of the "plain case" - i.e., the clear,


straightforward, uncontroversial meaning of a rule is shown
by some authoritative example. Hence, in the previously cited
example from section 1: the city ordinance prohibiting opera

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58

tion of vehicles in the park after 6 pm clearly takes, as its


authoritative example, the central case of motor vehicles.
What of the borderline case of bicycles? The indeterminacy of
the term 'vehicle' requires that the term be further inter
preted. But to what standards should a judge, for example,
appeal in deciding whether or not to include bicycles within
the extension of the term 'vehicle'?
For Hart, the indeterminacy of the rule is mirrored by
the indeterminacy of the overall social aim in enacting the
rule in the first place. One way of more clearly determining
the scope and meaning of the rule, then, is to clarify that
aim. If, for example, the judge determines that the aim of
the rule is to encourage unimpeded pedestrian use of the park
in the evenings, he may decide that extending the prohibition
of vehicles to bicycles contributes to that aim. But the
"central case" meaning of the term 'vehicle' provides little
interpretive assistance in this case. Indeed, even when an
appeal is made to the notion of a social aim:
the discretion thus left to [the judge] by
language may be very wide; so that if he
applies the rule, the conclusion, even though
it may not be arbitrary or irrational, is in
effect a choice.84
Consider a more difficult case, one in which the limita
tion of the rules in question involves not so much their
vagueness as their failure to include within their scope a
clearly unanticipated factual situation.

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59

In Riggs v. Palmer85 an heir named in his grandfather's


will murdered his benefactor rather than risk being later
written out of the will. When the murderer came forward to
collect his share of the estate other relatives challenged
his right to inherit, claiming that his crime disqualified
him from inheriting.
Reference to the applicable legal rules in this case
shows that, as long as the will in question had been made in
due form according to the law it must be given proper legal
effect. And reference to the social aims intended by the
statutes governing wills reveals the intention of facilitat
ing testators' disposal of their property as they wish. Noth
ing regarding the right of murderers to inherit the property
of their victims is indicated by appeal to these standard
canons of interpretation. As this is precisely the issue
under dispute, the relevant legal rules seem to uphold the
murderer's entitlement to his share of the inheritance.
Nevertheless, he was denied his share of the estate.
Instead, the court cited a fundamental maxim of the common
law, that "No one shall be permitted to take advantage of his
own wrong," and held that "he shall not acquire property by
his crime, and thus be rewarded for its commission.87" In
deciding Riggs, the court was forced in its interpretation to
go beyond the seemingly relevant legal rules that had clear
applicability to the facts of the case. Adjudication in this
case seems more clearly like an instance of judicial legisla
tion - expanding the legal rules pertaining to wills by

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60

including within their scope a previously unanticipated type


of case. Interestingly, the standard to which the court
appealed, an informal rule derived from the accumulated prin
ciples of common law, appears to embody of certain degree of
moral content as well.
In both these examples adjudication involved interpreta
tion of the meanings (and aims) of the rules in question. And
what both examples reveal is the need for this interpretation
to appeal to some standard outside the texts of the rules
themselves. In the former case, the perceived social aim of
the rule illuminated the most plausible interpretation of its
meaning. In the latter case, appeal to a principle seen by
the court as a fundamental element of the common law provided
the grounds for deciding a dispute that clearly lay outside
the scope of the relevant rules.
Both cases demonstrate that adjudication, for Hart, will
often require the exercise of judicial discretion to alter,
revise, extend or merely clarify the meaning, scope and aim
of existing legal rules. For Hart, as for positivists in gen
eral, discretion is essentially a question of a choice of the
most plausible among several possible alternatives in reach
ing a decisive interpretation of a legal rule. And since
there are alternatives available for each discretionary
"choice," the results of such instances of adjudicative dis
cretion will often depend upon the interpretive skills of the
judge as much as on the guidance provided by various "canons
of interpretation."

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61

For legal positivism, these are the consequences of the


inescapable limits of law. For Dworkin, this picture of judi
cial discretion and the "openness" of adjudication indicate
not so much the limits of law as the limitations of posi
tivism's conception of law. Dworkin's "rejoinder" to posi
tivism is the next topic for consideration.

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62

Chapter 3:
The Plane Of Principle

Riggs v. Palmer, the case discussed at the close of


chapter 2, is a classic example of a "hard case" a type of
dispute in which adjudication is made difficult because one
or both of the following conditions obtain:

(1) "case nov

elty, " in which the case presents a hitherto unforeseen fact


situation for which no explicit legal rules exist;

(2)

"adjudicative tension," in which several legal rules deemed


equally relevant to the case at hand tend to pull the adju
dicative outcome in opposing directions.87
Viewed in light of the framework for legal theories
established in chapter 1, the hard case is a localized prob
lem in the theory of adjudication, which is itself a division
of the conceptual branch of a general theory of law. An
account of hard cases must address several specific questions
regarding legal adjudication. First, why in such cases do
statute and case law fail to dictate a conclusive, non-controversial result? This is the question of legal indetermi
nacy. Second, what procedures do judges follow in adjudicat
ing hard cases, and how do these differ from those followed
in standard or "easy" cases? These are questions of legal
reasoning and legal interpretation. Lastly, what constraints
and standards govern, or ought to govern, the judge's adju
dicative function in hard cases? This is the question of
judicial discretion. A theory of hard cases unites all these

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63

questions within a legal theory's overall account of the pro


cess of adjudication in all classes of cases.
Dworkin's legal theory is, at least in part, a sustained
argument for re-evaluating the theoretical importance of hard
cases. For it is precisely this type of dispute that "...
send us to look for theories of law."88 The reason for this is
that the adjudicative guidance provided by the settled law is
absent or unclear in such cases and the legal outcome appears
to involve judges in explicitly moral or political argument
and interpretation. Because the adjudicative processes are
more exposed to view in hard cases it is thus easier to
appreciate the scope and extent of the reasoning, of both a
broadly theoretical and narrowly practical nature, that is
required to reach decisions in such cases.
Specifically,

for Dworkin, the dynamics of the hard case

reveal that "judges characteristically decide hard cases by


appealing to principles that are themselves justified as fig
uring in the best justification of settled law, and this pro
cess of justification includes a moral dimension."89
Faced with the seeming indeterminacy of law that is the
hallmark of the hard case, a judge can fulfill her institu
tional duty to decide disputes through the application of
valid law - only by engaging in a complex interpretive exer
cise, guided by and ultimately invoking the moral principles
and political values that underlie and justify the regime of
law as a whole. With hard cases, the law's indeterminacy pro
vokes as an integral ingredient in adjudication, a large

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64

scale theoretical reconstruction of the community's political


morality that is embodied in the law relevant to the case at
hand. This underlying morality serves at the same time as
justification for that relevant body of law. In effect, the
judge determines the legal rights and duties of parties in a
"hard case" dispute not by consulting her own political and
moral convictions but by discovering those rights and duties
authorized by the set of political and moral principles com
prising the "soundest theory of the settled law."90
Clearly, then, the hard case engages all the important
issues legal theories are design to settle - namely, the
nature and function of law, the criteria for legal validity,
the justification and legitimacy of legal decisions.91 More
over, providing an account of hard cases draws upon the nor
mative as well as conceptual resources of a theory of law.
For if, as Dworkin claims, legal interpretation is essen
tially value-guided,

and if, as seems to be the case, inter

pretation is an integral part of adjudication, then any the


ory's account of adjudication requires an accompanying ac
count of the relation between law and political morality.
Furthermore,

since a judge's adjudicative function involves

making explicit the connections between existing legal prac


tice and its political justification, no theory of adjudica
tion is complete without an account of the role and legiti
macy of the judiciary in the overall political arrangements
of the community.

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65

For Dworkin, hard case adjudication provides the


paradigm for adjudication in all cases. And this makes the
problem of the hard case the perfect vehicle for articulating
a comprehensive "Dworkinian" theory of law.
The legal theory Dworkin draws from his analysis of ad
judication in hard cases can be summarized in the following
series of propositions:92
[A]

Law consists of both legal rules, explicitly formulated


in some authoritative legal text or identifiable by ref
erence to institutionally accepted standards of recogni
tion, and moral/political principles which underlie and
are expressed in legal rules.

[B]

Legal argument and analysis is fundamentally interpre


tive in character and is both directed toward and con
strained by the constellation of rules and principles
(and the special institutional history) that comprises
the settled law of the community.

[C]

The content and validity of what is taken to be the set


tled law is ultimately determined by reference to those
principles encompassed in the soundest theory of that
law, i.e., the most defensible moral and political the
ory cohering with and justifying the settled law.

[D]

The aim of adjudication is the discovery of determinate,


individual rights in particular cases, such rights being
those specifically authorized by legal institutions and,
ultimately, sponsored by the justifying background the
ory of the legal system.

[E]

Law is itself an interpretive concept employed for con


structing an abstract description of the point of legal
practice as a whole and for justifying this practice in
light of the community's political morality.
Propositions [A] - [D] are drawn primarily from Taking

Rights Seriously. They represent both Dworkin's considered


rejoinder to legal positivism on the issue of adjudication in

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66

hard cases as well as his attempt at constructing a full


blown theory of law to support that rejoinder.
Proposition [E], from the more recent Law's Empire, rep
resents the "meta-theory" of law required as an explanation
of and support for the other elements of Dworkin's theory.
Drawing on elements of moral and political theory it seeks to
provide a conceptual framework on which to hang the more de
tailed, working theory articulated in Taking Rights
Seriously.
Three related matters will be discussed in the present
chapter. First,

I shall reconstruct the details of Dworkin's

arguments against positivism, centering upon hard case adju


dication and how this issue provides the impetus for
Dworkin's own constructive theory of law. Second, I shall
present an analysis of the most important features of that
constructive theory, the distinctive concepts of right, prin
ciple and interpretation as well as the pivotal notion of the
soundest theory of the settled law. Finally, the connection
between the adjudication-based theory in Taking Rights
Seriously and Dworkin's own "concept of law" in Law's Empire
is briefly explored, largely as a prelude to the more
detailed treatment of law as an interpretive concept in
chapter 4 below.
The best way to begin is to return to the "dusty
purlieus of the law" and examine some specimens of the hard
case in vivo.

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67

1. Adjudicating the Hard Case

Consider the following three cases, each of which ex


hibits the necessary degree of legal indeterminacy to qualify
as hard cases.
Riaas v. Palmer, the details of which are already famil
iar from chapter 2, presents a novel factual situation unan
ticipated by the relevant legal rules - in this case, those
governing the making of wills. Because one of the heirs named
in a presumably valid will murdered the testator in order to
insure his inheritance, the remaining heirs challenged his
right to inherit.
The court acknowledged that a literal reading of the
statutes of wills indicated that the will, since it satisfied
the explicit statutory conditions, deserved to be given
proper legal effect. But in this instance doing so would
amount to rewarding the murderous heir for his crime. Hence,
the court denied the murderer his share of the inheritance.
But it appealed for justification to a maxim of the common
law: no person should be permitted to take advantage of his
own wrong. According to the court this common law principle
was, by virtue of its very generality, relevant to the un
usual sort of factual situation described in Riggs.
In Henningsen v. Bloomfield Motors. Inc..93 a defective
products liability case, the plaintiff - who had purchased a
car - challenged a contractual provision limiting the car
manufacturer's liability to either replacement of or compen

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68

sation for defective parts. Specifically, Henningsen claimed


that his injuries in an accident were caused by the defective
steering mechanism on the purchased car. He petitioned for
compensation from the manufacturer on the grounds that, the
contractual limitation notwithstanding, the company should be
held liable for his injuries.
Unfortunately for Henningsen, relevant statute and case
law weighed heavily toward the court's enforcing the liabil
ity limitation clause, particularly since it was a provision
of a freely entered, non-fraudulent agreement that satisfied
all the background conditions for a binding contract.94
Despite these considerations, the court found the manu
facturer liable and ordered compensation for Henningsen's in
juries. The court stated (in explanation) that, given the
ubiquity of the automobile in daily life,

"the manufacturer

is under a special obligation in connection with the con


struction, promotion and sale of his product."95 It cited as
well the principle that ''the courts generally refuse to lend
themselves to the enforcement of a 'bargain' in which one
party has unjustly taken advantage of the economic necessi
ties of the other."96 Finally, the court noted that
There is no principle which is more familiar
or more firmly embedded in the history of
Anglo-American law than the basic doctrine
that the courts will not permit themselves to
be used as instruments of inequity and
injustice.97
In sum, the court considered the liability.limiting con
tract a classic "hard bargain."98 General considerations of

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69

social and economic justice as well as fairness between con


tracting parties of vastly different economic position reveal
that, despite its fulfillment of the law's "letter," the con
tract in Henningsen is nonetheless legally unconscionable.
Thus, the court felt compelled to nullify its liability-lim
iting provision.
Finally, McLoughlin v. O'Brian.99 a case in English law,
involves questions of liability and negligence. The plain
tiff, Mrs. McLoughlin, argues that on the basis of a series
of precedents involving liability and negligence decisions,
she should receive compensation for emotional injury suffered
upon witnessing

(at a hospital) the injuries her family sus

tained in an automobile accident caused by the negligence of


O'Brian. In other, similar cases, plaintiffs had been awarded
compensation for emotional injury resulting from viewing in
juries to loved ones at accident scenes.100
McLoughlin poses several distinct adjudicative ques
tions. What precisely are the details of the legal doctrine
of liability for negligence respecting emotional injury? What
are the sources of this doctrine,

(e.g., rules of statute or

precedent), and to what extent does the doctrine dictate a


result in this case? For what reasons should the court either
accept as relevant and apply the cited precedents or reject
them as distinct and thus inapplicable in case at hand?101
In successive litigations of this case, courts found the
precedent instances of compensation for emotional injury dis
tinguishable from the facts in McLoughlin - primarily because

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70

the emotional injury sustained in those cases occurred at the


actual accident scene, not elsewhere at a later time. More
over, this initial court's ruling in McLoughlin serves to
clarify the meaning of the doctrine of liability respecting
emotional injury: emotional injury sustained away from the
accident scene at a later time is not reasonably foreseeable,
unlike the injury involved in the precedent cases. Hence, it
would not be consistent with the common law principle,
"persons are liable for injury caused by their failure to ex
ercise reasonable care," to regard such injuries as a result
of negligence.
The Court of Appeals, to which the plaintiff next took
her case, also rejected McLoughlin's claims based on the
cited precedents - but not because it found these precedents
distinct and thus inapplicable. This court,in fact, did find
the injury to Mrs. McLoughlin foreseeable under the negli
gence principle. Rather, the appeals court cited specific
considerations of social policy as justification for its
denial of compensation for emotional injury in this case.
Specifically,
[to] recognize a larger area of liability,
embracing injuries to relatives not at the
scene, would have a variety of adverse
consequences for the community as a whole.102
The final appeal to the House of Lords resulted in a re
versal of the appeals court ruling and a new trial, although
the underlying reasoning for the decision was not altogether
"settled." The appeals court had distinguished McLoughlin

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71

from the line of cited precedents mainly because not to do so


would establish an undesirable legal policy regarding future
suits claiming compensation for emotional injury. In explana
tion of its decision, the higher court referred to two dis
tinct types of reasons.
First, the policy considerations advanced by the lower
court were insufficiently plausible to justify denial of Mrs.
McLoughlin's appeal. Enlarging the scope of the liability
doctrine is not likely to invite an inordinate number of
future liability suits.
Second, the lower court's finding that Mrs. McLoughlin's
emotional injury did conform to the requirements of the gen
eral negligence doctrine introduces considerations of princi
ple. into the case as well. Why? Because having recognized
that both the instant case and the cited precedents fall
under the principle of reasonable or due care, the lower
court cannot thereafter justify its refusal to enforce just
the types of rights and duties it had recognized and enforced
in like cases in the past. Having found for the plaintiff on
the issue of principle, the court cannot then in fairness
offer reasons of policy or social consequences to justify its
refusal to act on that principle.
These three cases represent moments in the institutional
history of the law. Moreover, they exhibit in varying degrees
the factual novelty and adjudicative tension characteristic
of the hard case. Despite their indeterminacy, adjudication
produced determinate results in each case. The question thus

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72

posed to any legal theory is this: what overall explanation,


couched in terms of a general theory of law, can account for
the adjudication in these and like cases?

a. The Positivist Response

The "standard judicial function" according to Hart is


the "impartial application of determinate existing rules of
law in the settlement of disputes."103 In hard cases this
function is complicated by the fact that the rules of law to
be applied are indeterminate, either because they are them
selves vague in meaning or because their relevance to a novel
set of circumstances is unclear. The mere fact of such inde
terminacy does not undermine H a r t 1s notion of the judicial
function. It simply suggests that a positivist account of the
judge's function in hard cases should begin by clarifying the
adjudication of clear or easy cases.
The judge's task in adjudicating any case is to deter
mine, based on the facts proved in the case, which legal rule
is relevant to this type of case. What marks the easy case is
that the particular facts proved neatly match the general
factual description provided in the rule:
the clear cases are those in which there is
general agreement that they fall within the
scope of a rule.103
There are other factors at work in the easy case as
well. The judge labors under the general institutional obli

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73

gation, given in Hart's notion of the standard judicial func


tion, to look to the materials of the law alone in deciding a
dispute. Moreover, this general obligation is exemplified and
thereby made clearer by the actions of fellow judges applying
specific legal rules.
For example, past traffic court judges may have deter
mined, as a result of their combined past rulings, that
crossing against a traffic light and crossing the street at
mid-block both fall within the scope of a city ordinance pro
hibiting jaywalking. A currently presiding judge is thus sub
ject to considerable institutional pressure, e.g., the social
desirability of predictive certainty in the law's rules, the
judicial desire to avoid being overruled by a superior court,
to apply the jaywalking rule in conformity with past judges'
application of it. Thus, the general agreement Hart alluded
to as the distinguishing feature of the easy case is, in a
sense, an institutional convergence of meaning regarding the
sense of particular legal rules, a convergence helped by the
adjudicative history of such rules.
Two other features of the easy case deserve notice here.
As the account of legal reasoning in chapter 2 indicated,
Hart is uncommonly sensitive to the need for interpreting
rules even in easy cases. The traffic court judge mentioned
above must still exercise a modicum of interpretive reasoning
to decide whether the case at hand does in fact instantiate
the general rule. But in easy cases the judge need not go

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74

beyond the resources for interpretation provided in the rule


itself, with only modest attention to its judicial history.
Moreover, in easy case adjudication

(at least on the

positivist model), the thornier issues of legal philosophy


seem not to come into play. The identity and validity of
legal rules are not problematic or unclear. The relation
between law and extra-legal values

(moral and political)

is

not explicitly invoked. Indeed, the only values that seem to


be involved are institutional, legal values: consistency in
adjudication, adherence to internal, institutional practices
like stare decisis.105 or the principle that legal disputes
deserve strictly legal settlement.
It is not these institutional values

(or judges' commit

ment to them) that change in hard case situations. Rather,


what changes is the general agreement about the determinacy
of existing legal rules with respect to a given case. In such
situations the case at hand does not appear to fall under a
single existing legal rule that would prescribe a unique
result. Either the factual situation involved is wholly unan
ticipated by the existing legal rules or more than one rule
is plausibly applicable, making a number of adjudicative
results equally plausible as well.
Yet courts are obliged to reach decisions in such cases.
On the positivist account, judges in hard cases must, there
fore, "create" new legal rules by deciding for one of the
parties in a dispute and, most important, by providing a
coherent rationale for the outcome. It is the rationale that

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75

is norm-creating,

since its reasoning and the generalizable

rules embedded in it create a new line of judicial precedent


which will exert institutional pressure on the actions of
future judges confronted with similar cases.
For positivism, hard case adjudication is "judging in
the shade of legislation,"106 since judges, in exercising
their discretionary choice among plausible outcomes in the
case at hand, effectively legislate for future like cases.
Moreover, the determinate rule they create likewise estab
lishes determinate legal rights and duties for future situa
tions of a similar sort.
How well does this account of hard case adjudication
explain the judicial outcomes in the three cases described
above?

In Riggs, the judge chooses to affirm a common law

principle

(one with a high degree of moral content) in nulli

fying an heir's right to inherit under a putatively valid


will. As part of the common law, the principle that no person
should be allowed to profit by his own wrong is part of the
legal data to which judges are obliged to appeal in rendering
decisions. The judge in Riggs chose to make this principle
both relevant and decisive by grounding his decision on it.
Likewise in Henningsen. the indeterminacy of the case
lies in the conflict between existing legal rules governing
the validity of contracts and considerations of political
principle and economic fact that seem to render the contract
under dispute unfair. The judge exercised his discretion in
making the latter considerations decisive, thereby invalidat

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76

ing the particular agreement at issue and expanding and clar


ifying the rules governing future contracts.
Finally, in McLoughlin. the House of Lords weighed the
competing considerations at issue in the case: legal stan
dards comprising the doctrine of negligence, social conse
quences of extending this doctrine to include emotional in
jury of a specific type, even the consistency of past prece
dents and the court's obligation to adhere to them in form as
well as in substance. In choosing to overrule previous hold
ings against the plaintiff, the higher court decided that
formal consistency was the most important consideration. In
effect, the higher court said that when courts recognize the
applicability of a precedent doctrine in a given case they
are bound by fairness and consistency to act on that doctrine
despite the resulting social consequences.
All three cases, then, are construed on the positivist
account as occasions for judicial discretion. Since no unique
result is dictated, the judge must select whichever result
seems most compelling and justify it. Moreover, these are all
cases of a kind of judicial legislation. Each reveals a gap
in the regime of existing legal rules which the judge, by an
exercise of her discretionary judgment, fills with a new
legal rule.

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77

b. Dworkin's Rejoinder

Dworkin has two principal lines of criticism of the pos


itivist account, one relatively weak and the other strong and
acute. Both, though, center upon a single theme: the posi
tivist judge does not fulfill the standard judicial function
of resolving disputes by impartial application of determinate
legal rules in hard cases. She either unwarrantedly ventures
outside the law in reaching such decisions or illegitimately
performs an essentially creative, legislative function.107
First, consider Dworkin's weaker line of criticism. The
positivist account of hard case adjudication accords to
judges the strongest, widest possible discretion. Once a
judge has determined that the case at hand falls outside the
ambit of any existing legal rule, she is obliged only to
reach a determinate result in the case. Little constraint
exists over what sorts of considerations the judge may exam
ine and ultimately appeal to in justifying her decision.
Moreover, this view of adjudication can be coupled with
positivism's core idea from chapter 2: that the valid law of
a community consists in those rules that have been laid down
or otherwise recognized by authoritative legal institutions.
Hence,
when a judge runs out of rules he has discre
tion, in the sense that he is not bound by
any standards from the authority of law, as
to say that the legal standards judges cite
other than rules are not binding on them.108

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78

In the absence of binding rules that have passed the test of


legal "pedigree," judges may appeal to a myriad of standards,
even to personal political or moral convictions, for reaching
and justifying a decision.
Dworkin's criticism here is uncompelling for several
reasons. The most obvious is that no actual positivist theo
rist, no matter how committed to the notions of legal
"pedigree" and the "limits of law" thesis, has proposed so
sweeping a conception of adjudicative discretion.
Even for positivism,

judicial discretion is more tightly

circumscribed than Dworkin's caricature indicates. As Hart


himself has noted,
cases for decision do not arise in a vacuum,
but in the course of the operation of a
working body of rules, an operation in which
a multiplicity of diverse considerations are
continuously recognized as good reasons for a
decision. These include a wide variety of
individual and social interests, social and
political aims, and standards of morality and
justice.109
Though there are many considerations which may figure in
a judge's decision, the judge is free to weigh and rank their
relevance. This does not entail that decisions resulting from
this process are arbitrary, or that the judge's discretionary
power is therefore completely unconstrained.
As earlier noted, judges labor within a matrix of insti
tutional values and expectations

(e.g., the practice of stare

decisis) which establish some constraint over the delibera


tive processes of judges. Because adjudication requires the

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79

judge to take the Hartian "internal point of view" with re


spect to these institutional practices, rules that are obvi
ously relevant to any given case at hand will demand the
judge's consideration.
But many of the diverse considerations that Hart men
tions as having the potential to figure as good reasons for
decisions in hard cases, are notoriously controversial. If a
judge invokes in her decision particular standards of morali
ty or a specific judgment about the political aims of her so
ciety, it is possible

(even likely) to be controversial or

disputed.
An example is ready at hand. In Henningsen. the court
imported into its deliberations certain considerations re
garding the economic fairness of a contract between a rela
tively economically weak consumer on the one hand and a pow
erful automobile corporation on the other. These are not, of
course, irrelevant factors in the case of business contracts.
But by making them decisive in this case the court also ren
dered a distinct judgment on the economic aims that ought to
be served by the rules governing contracts. And the very fact
that many corporations affected by this ruling would disagree
with the judge's judgments
considerations)

(again, based largely on economic

indicates the controversial nature of the

judge's economic conclusions.


What cannot be denied, however, is that all of the di
verse considerations Hart cites as possible justifications
for decisions in hard cases are extra-legal. That is, given

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80

the rigid test for the identity and validity of law provided
by rules of recognition in positivist legal theory, moral
standards, political values and similar considerations cannot
themselves be part of the law. They are, rather, standards by
which judges, exercising their discretion, may extend law in
directions they see as justified and beneficial morally,
politically and socially.
But Dworkin's objections to positivism do not rest on
this line of criticism alone. His strongest arguments center
upon the recognition that there is more at stake in the issue
of judicial discretion than simply the extent of the judge's
interpretive latitude. Dworkin's stronger criticisms of posi
tivism speak to the unsettling political issue that lies at
the heart of the whole question of discretion. If the stan
dard judicial function is the application of existing rules
of law in settling disputes, what entitles judges to venture
outside the law to find extra-legal principles and standards
for justifying its decisions in hard cases? This is an issue
in political theory because it concerns the proper role and
power of the judiciary in a community's general arrangement
of political institutions and the legitimacy of judicial
acts.
Moreover, it is an important issue in legal theory
because it directly involves the conceptual means by which
theories of law classify the "data"

(legal as well as non-

legal) that judges make appeal to in adjudicating hard cases.

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81

Specifically, positivism encounters the difficulty of


finding an explanation for hard case adjudication because of
its emphases on (1) a sharp separation between law and moral
ity,

(2) its construal of legal validity in terms of authori

tative origin and (3) its conceptual analysis of law as a


system of rules. Because hard cases by definition exhaust the
existing, determinate rules, positivism is left with no theo
retical alternative but to countenance judges' resorting to
moral and political standards, principles and values in adju
dicating hard cases. Further, given the conceptual linkages
of 'law' with 'rule' and 'validity' with 'authoritative ori
gin, ' such standards, principles and values must lie outside
the ambit of valid law.110
The critique of positivism that Dworkin has developed
here is complex and mutli-layered. Assessing it requires
first disentangling the interconnected theoretical issues,
both legal and political, that Dworkin appeals to in his cri
tique.
First of all, positivism appears to offer a bifurcated
conception of adjudication. The standard adjudicative func
tion - applying determinate law in clear cases - has been de
scribed at length above. In hard cases, a non-standard adju
dicative function is called into play. Judges in fact
make new law, either covertly or explicitly
[they] act as deputy to the appropriate
legislature, enacting the law they suppose
the legislature would enact if seized of the
problem.111

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82

As deputy legislatures, the procedures by which courts


reach their "law-creating" decisions resemble those of leg
islative bodies. Specifically, courts will appeal to the same
types of considerations as legislatures in justifying their
decisions. Thus, courts invoke both arguments respecting pol
icy and arguments respecting principle. An argument of policy
helps to justify a decision "... by showing that

[it] ad

vances some collective goal of the community as a whole;" and


argument of principle helps to justify a decision "... by
showing that [the] decision respects or secures some individ
ual or group right."112
For example, the decision to provide government subsi
dies for cranberry growers will differ in many respects de
pending upon whether it originates in legislative enactment
or as a result of a litigated dispute. But there will be no
difference, given the deputy legislature model for adjudica
tion, with respect to the sorts of arguments invoked to jus
tify it.
Suppose, for instance, that a cranberry growers' organi
zation files a class action lawsuit113 on behalf of its mem
bers, demanding that cranberry production be subsidized by
the government. It argues, let us say, that subsidizing cran
berry production
(a)

would advance the economic goal of stabilizing a partic


ular sector of the domestic agricultural economy, thus
contributing to economic growth in certain regions of
the country;

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83

(b)

would respect their rights to equality of treatment,


since regional agriculture (e.g., tobacco)

is already

provided similar subsidies elsewhere on grounds given in


(a) .
(a)

is clearly a consideration of policy,

(b) one of

principle. On the positivist account of adjudication,

court, in the absence of determinate legislative enactments


on the matter, is free to decide this suit on either type of
consideration, or on an amalgam of both. The resulting deci
sion will have political as well as legal consequences,

since

it will amount to a political decision regarding the desir


ability of allocating of a portion of the government's agri
cultural funding.
The question that Dworkin presses against the positivist
model of hard case adjudication is the following: are courts
politically competent to make what amount to political policy
decisions? The answer, particularly in democratic polities,
has to be no for two reasons. First, as Dworkin rightly
points out, such decisions are essentially compromises
among individual goals and purposes in search
of the welfare of the community as a whole
[and must be] made through the operation of
some political process designed to produce an
accurate expression of the different
interests to be taken into account.114
Such a process is better suited to popularly elected bodies
such as legislatures than to the electorally insulated judi
ciary.

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84

Second, "legislating" judges in hard cases create rights


and duties both for the future and for the case at hand
through their decisions. But to do so is to create an "ex
post facto penalty" in the case at hand, for
if a judge makes a new law and applies it
retroactively in the case before him, then
the losing party will be punished, not
because he violated some duty he had, but
rather a new duty created after the event.115
Both these reasons represent the undesirable political
implications of the positivist modelling of hard case adjudi
cation on the notion of a deputy legislature. But there are
even more serious difficulties for the positivist account
from the point of view of legal theory.
For Hart and other legal positivists,

law is fundamen

tally characterized by the notion of a rule. Among the theo


retical conclusions drawn from this basic tenet is that only
those rules capable of being identified as valid by reference
to a master rule recognizing and certifying their pedigree
are elements of a legal system. It is this set of rules that
explicitly details the actual legal rights and duties of
those subject to the legal system. Moreover, it is this set
of rules that judges are institutionally obliged to apply.
Hart and most other positivists also hold that, due to
the linguistic limitations built into general rules, specifi
cally their open texture, indeterminacy inevitably arises.
The resulting gaps in the system, points at which the sys
tem's rules fail to dictate a result, are closed when the

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85

judge " reaches beyond the rules he is bound to apply... for


extra-legal principles he is free to follow if he wishes."116
Positivist legal theory has no alternative but to pro
vide a bifurcated, fragmented account of adjudication: a
standard conception in which judges apply determinate law and
a nonstandard conception in which judges create law where no
determinate rules existed.
But by introducing the necessity of an appeal beyond the
law in hard cases, the positivist account also introduces a
degree of indeterminacy into the adjudicative process itself.
In particular, if on occasion judges must perform quasi-leg
islative functions that involve them in controversial politi
cal decisionmaking, in what sense can the "standard judicial
function" remain the impartial application of law?
There seem two possible solutions to this problem. The
first, a skeptical one, is simply to regard all adjudication
as inherently discretionary and legislative, the standard
function being merely a fiction to conceal the political,
moral and economic choices judges routinely make in their de
cisionmaking. This seems both extreme and false,

since it

ignores the more common easy case and takes the hard case
exception for the rule.117
The other solution is to locate the root difficulty in
the positivist conception of law as rule and the accompanying
analysis of validity in terms of authoritative origin. What
is required is a more complex basic conception of law that
includes,

in addition to rules, " standards that do not

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86

function as rules, but operate differently as principles."118


This, of course, is the solution Dworkin chooses to pursue.
There are two additional implications worth noting here.
First, the admission of standards such as principles
into the body of what is considered settled law destroys the
positivist distinction between value-neutral, easy case adju
dication and value-laden, hard case adjudication. Given the
unavoidable moral and political content of all such princi
ples, all adjudication will have a moral or political dimen
sion, even if only implicitly.
Second, the nature of adjudication must be conceived
differently on this view. For if the law contains principles
that connect the legal system with the community1s background
morality, the task of adjudication will be one of discovery,
not invention. Judges will be obliged to search the law's
underlying political morality for pre-existing rights and
duties that provide solutions to hard cases at law.

2. Dworkin's Theory of Law

Dworkin has said that the law, and particularly the


courts responsible for adjudicating it, operate on the "plane
of principle" in political life. The courts, in other words,
pursue unique and lofty aims and purposes. They protect
rights, consider questions of justice, and articulate and
affirm high level moral and political principles. Even more
important, these aims are not subject to the brawling compe

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87

tition of interests that is at the heart of ordinary politi


cal activity.119
Such, at least, is the picture of the law envisaged by
Dworkin's legal thought. But this picture looks suspiciously
idealized, particularly in the absence of any accompanying
theoretical account of law. If Dworkin's picture of the law
and the courts is correct, what must the law be like? Put
more bluntly, what theory of law can Dworkin offer to justify
his grandiloquent claims for the "plane of principle?"
Predictably, Dworkin's response to the question is a
theory that is complex and far-reaching, The general compo
nents of his view are captured in his statements that
a theory of law ... takes questions about
legal rights as special questions about
political rights.
the principles [a theory of law] sets out
must try to justify the settled rules of the
law by identifying the political and moral
concerns and traditions of the community
which... do in fact support the rules.
General theories of law are constructive
interpretations... they try to show legal
practice as a whole in its best light, to
achieve equilibrium between legal practice as
they find it and the best justification of
that practice.
theories of law cannot sensibly be understood
as linguistic analyses, or neutral accounts
of social practice, [they must be] based in
the end on some normative political
theory.120
This conception of a legal theory sounds a familiar
Dworkinian theme. A comprehensive account of law must reunite
the theoretical elements of law - the aims of evaluation and

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88

description and their accompanying normative and conceptual


apparatus - that legal positivism has sought so scrupulously
to distinguish.
But the new note revealed in these passages is the
emphasis on understanding theories of law, as well as legal
argument and analysis themselves, as exercises in interpreta
tion, aimed both at justifying and explaining law.121
"Interpretation," as Dworkin understands it, is a two-faceted
exercise in constructive reasoning. That is, it involves two
aims and two activities that are mutually dependent on and
supportive of each other.
First, interpretation aims at constructing a sound and
coherent set of normative principles that serve as justifica
tions for the specific materials of the settled law, i.e.,
the rules, rights, duties, etc., that comprise the legal
data.

Second, these justifying principles, based as they are

in the moral and political implications of the actual settled


law, illuminate the legal data by clarifying them and reveal
ing the most justifiable directions for adumbrating or
expanding law.
Constructive interpretation is simultaneously a reflec
tion of the settled law and an attempt at portraying the set
tled law as both internally coherent and as the practical ex
pression of the soundest conception of a community's politi
cal morality. Interpretation is, for Dworkin, the paradig
matic legal activity, revealing itself in everything from an
attorney's arguments in a specific legal dispute to the legal

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89

philosopher's attempts at formulating abstract theories of


law. Both activities are (though with markedly different aims
and emphasis) attempts to articulate the normative background
presupposed by legal practice and to determine the particular
institutional rights and duties authorized by this moral
background in specific instances.122
More important, however, is what the vantage point of
interpretation reveals about the structure of law. For if law
is best understood as fundamentally interpretive, and if
interpretation requires reference to the law's justifying
background political morality, then there is necessarily a
continuity between law and morality. Hence, describing law
will also require reference to principles involved in its
evaluation. As such, an account of what law is can only be
articulated in light of what from the standpoint of the com
munity's political morality the law ought to be.
This claim has enormous theoretical implications. In
light of it, the positivist "separation thesis" is untenable.
For Dworkin, law cannot be conceptually separate from moral
ity. Rather, the very concept of law entails reference to
substantive moral principles.
But Dworkin's claim has important consequences for legal
practice as well. For if a community's law is necessarily
connected with its background political morality, then the
institutions of the law, most notably, the judiciary, cannot
exercise their functions without awareness of, even explicit
reference to this moral background. In particular, adjudica

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90

tion can be viewed as a special instance of interpretive


legal analysis; for a judge must both formulate some concep
tion of the background moral purposes embodied in a particu
lar body of the settled law (e.g.. contracts) and then arrive
at a decision regarding the determinate rights and duties
authorized by this conception in a specific case at law.
Although Dworkin intends this interpretive account to
describe all adjudication, it best characterizes judicial
reasoning in indeterminate, hard cases. Hence, Dworkin's
account can be tested by applying it to the three hard cases
introduced earlier in this chapter.

Recall the court's reasoning in Riggs. An heirs claim


to inherit under a legally valid will was denied not because
the relevant statutes of wills so dictated. Indeed, it dic
tated the opposite. Rather, the court ruled that for this
particular prospective heir to inherit, since he had murdered
the testator to do so, would be repugnant to the deeper moral
purposes the law as a whole is intended to pursue, and to the
concomitant background principles that justify the law. The
issue in Riggs, viewed in light of Dworkin's theory, is one
of consistency. Can the law, in enforcing the institutional
right of heirs to inherit, even those who murder to do so, be
consistent with its more general purposes of protecting inno
cent lives and deterring intentional wrongdoing?
The only way for the court to resolve the question of
consistency is to examine the various background principles

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91

implicated in Riggs. First, the heir's claim of a right to


inherit rests on the fact that the will in question was exe
cuted in accordance with the statutes of wills. The legal
rules regarding wills are themselves reflections of deeper
and more general aims the law is intended to serve, aims that
can be stated in a general principle:
people should be able by clear writing to
dispose of their property to others after
death as they desire.123
This principle provides the background justification for
the detailed rules included in the statutes of wills. More
over, the heir's claim is consistent with both the data of
existing will law and the implied background aims they are
intended to promote. Viewed in this narrow, limited context,
the would-be heir's claim to inherit is consistent with,
indeed follows from, a coherent set of rules.
But Riggs represents a unique factual situation. If the
would-be heir inherited, he would do so as a result of a
criminal act, murder, that he himself committed. That fact
necessitates that the issue of consistency be addressed from
an even more general perspective. This case necessarily en
gages other regions of the law, in particular, the criminal
law, though not in the sense that it falls under the general
description of some specific rule of criminal law. Rather,
since a criminal act has a material bearing on the facts of
this dispute, the court's interpretive reasoning must take

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92

account of the background purposes and principles of criminal


law that are also implicated in this case.
But why must the court's deliberation range so far
beyond the core issue in Ricras. the legitimacy of an heir's
right to inherit, particularly when the relevant legal rules
are so clear on the point of law?
For Dworkin, the answer is that adjudication is, as a
species of legal reasoning, fundamentally interpretive. As
such, it serves the dual purposes of both explaining or
describing the existing law and constructing a justificatory
framework of background principles. A comprehensive legal
interpretation in a given decision must obviously include the
particular facts involved and the specific rules of law under
which such facts are deemed to fall.
But equally necessary is the attempt to fit the case at
hand (and the isolated rule or rules applicable to it) into a
coherent scheme of law and legal practice as a whole; what is
also needed, in other words, is a set of overall justifica
tory principles that are general enough to account for every
region of the law and yet are useful, in specific cases, for
yielding the decision that is most consistent with legal
practice as a whole.
The regulative ideal here is what Dworkin calls
"articulate consistency." Interpretation should aim at deci
sions that can be brought within some comprehensive theory
of general principles... consistent with other decisions also
thought right."124 Most important, such consistency is a

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93

requirement not only because it is internal to the character


of interpretation itself,125 but also because it is a specific
institutional obligation of the judiciary. Only by formulat
ing a coherent interpretation of the overall purposes and
principles of legal practice - and reaching decisions consis
tent with these purposes - can judges effectively advance
such purposes.126
Such is the theoretical account of adjudication as con
structive interpretation. But how does this interpretive pro
cess operate in practice? Specifically, how does Dworkin's
account of adjudication as interpretation explain the outcome
in Riggs v. Palmer?
In Riggs the court found it necessary to consider back
ground principles of the criminal law, since such principles
are implicated not only by the facts of the case but also by
the interpretive requirement of reaching decisions that can
be regarded as consistent with general legal practice as a
whole. The background principles drawn upon can vary in scope
and generality.
Consider the following principles:
(a) Criminal acts, particularly those involving grievous
harm to life and person,

should be prevented.

(b) The law shall permit no one to take advantage of his


own wrongdoing.127
(b)

is a background principle for various regions of law,

from contracts to torts to criminal law.

(a) is specifically

applicable to the criminal law. Nevertheless, both principles

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94

reflect some of the most general and uncontroversial back


ground purposes of the law in general, namely: the protection
of individuals from harm and the concomitant condemnation of
conduct that is harmful.
In Riggs the court weighed these background principles
against the other legal data - the facts of the case and the
statutes of wills with their underlying moral background before reaching, through constructive interpretation, a
determinate decision. A narrow reading of the facts in Riggs.
along with a strictly limited appeal to the rules governing
legal recognition of wills, would favor upholding the heir's
right to inherit. Indeed, a court that clung scrupulously to
Hart's notion of the standard judicial function would be
bound to so decide.
But guided by the ideal of articulate consistency, and
thus aiming at a decision consistent with fundamental moral
aims of the law, the court strove for a more comprehensive
interpretation. By invoking these more capacious background
principles, particularly that denying individuals the right
to profit from their wrongs, the court clearly illuminated
the general context within which it must decide the Rioas
case.
Specifically, to uphold the murderous heir's right to
inherit would be inconsistent with (and unjustified in light
of) the law's deepest background moral aims. Moreover,

in

denying the heir's right in this particular instance, the


court affirms an underlying value commitment in the law:

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individuals are not entitled to institutional


rights in the law which find no background
justification in the political morality that
supports and informs legal practice.
A similar, interpretive account can be given in both the
Henninasen and McLoughlin cases. In the former case, the
court found that some contracts need not be enforced, even
though they were undertaken in accordance with the statutory
and doctrinal standards that stipulate legal acceptability
for a contract. But, in addition, contracts must be assessed
in light of " requirement[s] of justice or fairness or some
other dimension of morality" that represent the moral
background principles implicit in the institution of con
tract .128
Again, so far-reaching an interpretation is required
because of the court's obligation to reach decisions in light
of articulate consistency. The decision in the case at hand
must be consistent with past doctrine regarding contract.
Moreover,

it must cohere with respect to the background prin

ciples revealed by an interpretive consideration of contract


law as a whole. In Henninasen. an automobile manufacturer
seeks to avoid the plaintiff's claim of liability for defec
tive parts and the injuries they caused by relying on a con
tractual provision that expressly limits its financial
responsibility.
The court, viewing the facts of the case in light of the
complete moral background of contract practice,

appealed in

its decision to principles regarding the substantive fairness

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of contracts. In particular, contracts which reflect the ex


ploitation of one party's economic necessity or which unfair
ly apportion contractual benefits to the economically more
advantaged party do not merit enforcement by the court. In
the Henninasen case, the manufacturer's vastly superior posi
tion and its attempt to limit its liability at the expense of
the economically weaker plaintiff make the application of
these background principles necessary. For the court to rec
ognize and enforce so unfair a contract in spite of these
facts would be inconsistent with past legal practice,

for an

interpretation of this practice reveals the operation of just


those background principles cited by the court. Moreover,
such a decision would be unjustifiable in light of precisely
those moral background principles found to be implicit in
past practice regarding contract.
Finally, in McLoughlin, the court was faced with decid
ing both substantive issues regarding the scope of negligence
liability and procedural questions regarding the bearing of
precedent and the extent to which courts may appeal to
grounds of public policy. The details of this case reveal
even more clearly than the others the analytical value of
Dworkin's portrayal of legal argument as interpretive.
The plaintiff petitioned for compensation for emotional
injury ultimately traceable to the negligence of the respon
dent, since he caused an accident resulting in injuries to
the plaintiff's family. The plaintiff's claim was not a
mechanical application of an existing negligence doctrine.

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97

Rather, it rested on an interpretation of that doctrine and


the precedent that embodies it.
Specifically, we can say that the following principles
are embodied in the existing precedent doctrine of negli
gence :
(i)

Persons should exercise the care that reason


able, prudent persons of their age, experi
ence and physical characteristics would exer
cise in the circumstances.

(ii)

The duty of care in (i) should extend only to


harms from foreseeable kinds of causes to
foreseeable persons.

(iii)

Persons should be liable for intentional in


vasions of others' interests in (inter alia)
their "emotional tranquility." 129

In light of these principles, the plaintiff's contention


in McLoughlin is twofold. First, it holds that principles
due care,

(i)

(ii) foreseeability, and (iii) liability for emo

tional injury,comprise the set of background moral principles


that both justify and explain the body of past precedent
holdings regarding negligence.
Second, and particularly in view of past courts' inclu
sion of emotional tranquility as a protected interest, the
principles underlying negligence law indicate that the type
of interest the plaintiff appealed to is clearly stated by
the relevant background principles here as equally deserving
of protection.130 Hence, the plaintiff is equally entitled to
(i.e., has a right to) compensation for the respondent's neg
ligent invasion of this interest.

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On final appeal, the court reversed the lower courts'


rejection of the plaintiff's claim. But it is the grounds to
which the higher court appealed in its ruling that are cru
cial in terms of Dworkin's theory. The plaintiff's claim of a
right to compensation rested on a "principled" interpretation
of precedent. That is to say, the justifying principles em
bodied in negligence doctrine in general also justify a spe
cific right to be compensated in the case at hand.
The lower court had recognized the cogency of the plain
tiff's interpretation and argument, but denied compensation
on grounds of policy. It found that to extend negligence doc
trine in the way demanded by the plaintiff would invite nui
sance suits alleging similar emotional injury - an undesir
able social and legal policy.
But in recognizing the plaintiff's interpretation, the
lower court implicitly acknowledged that the law, understood
as both the existing legal doctrine and the principles com
prising its soundest justification, does include precisely
the sort of right claimed by the plaintiff. The lower court's
refusal to recognize this right can be explained by reference
to social policy considerations, but it cannot be so justi
fied. As a claim of right, the plaintiff's argument is inde
feasible except by reference to a superior - that is a con
sistent, better justified - framework of justifying back
ground principles. Hence, the higher court ordered a new
trial, demanding in effect that the plaintiff's claim be

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99

given the consideration it deserved, on the plane of princi


ple .
The central idea of Dworkin's analysis of the three hard
cases is a distinctive conception of what law i s :
'law' comprises both the clear, existing
rules that are "products of deliberate social
or political decision" and the background
principles of political morality that are
embedded (by implication) in these rules and
their applications.131
According to this conception, the law cannot be accurately
described without explicit reference to its implicit back
ground justification. Nor can specific rules of law (and the
legal rights they determine) be justified without demonstrat
ing the connection between the general moral purposes em
bodied in law and the rules and decisions authorized by these
purposes. Legal interpretation finds this connection - and
the principles that express it - when it arrives at
The soundest theory of law that can be
provided as justification for the explicit
substantive and institutional rules of the
jurisdiction in question.132
Unfortunately, this conception of law raises as many
questions as it answers. There are questions of legal valid
ity.: Which principles qualify as legitimate elements of a
given legal system, how are they identified, and from what
sources are they derived? Second, there are questions of
force and priority: Do principles outweigh even explicit
legal rules and how are conflicts among principles to be
decided? Lastly, there are conceptual questions to be exam

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100

ined: Has Dworkin provided a clear and compelling account of


the concept of law and of legal adjudication?
The best way to approach these questions is by examining
some of the important components of Dworkin's theory of law,
specifically, his notions of principles,

rights and the

soundest theory of the law. The remainder of this chapter is


devoted to this task.

3. The Status of Principles

The ubiquity of the concept of a principle in theoret


ical discourse suggests that it is a vague notion whose con
tent is variable. Given Dworkin's heavy reliance on the con
cept, it is essential to achieve some precision about
'principle' and its employment in legal as well as non-legal
discourse.
In the most basic sense, a 'principle' is a general
statement of a fundamental ground or reason, expressed in
terms of either an ultimate value or an empirical truth, and
intended to serve as a rationale for specific conclusions,
decisions or evaluations. Irrespective of the context in
which they are used, principles serve generally as the ground
of appeal for argument - whether the argument in question is
scientific, legal, moral or metaphysical.
There are, however, contexual differences between prin
ciples. Scientific principles, e.g., "whenever a solid is
dissolved in a liquid, the boiling point of the liquid is

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101

raised," are mainly used as grounds for drawing specific fac


tual conclusions.

(In this case, that salt water has a higher

boiling point than plain water.) Such

principles can be

viewed as "shorthand summaries of experience," and as a means


for accounting for phenomena.133
But principles that figure in moral arguments have an
additional function. They are appealed to in judging as well
as in deciding, in evaluating as well as accounting for deci
sions, acts and choices.134 This is the familiar justificatory
role of general principles, familiar from the analyses of
principled hard case adjudications presented earlier in this
chapter.
The traditional view of legal principles is that they
are instruments for evaluating particular legal rules,
specifically those legal rules that are established in
precedents in common law systems.135 Such principles - e.g.,
"Involuntary transfers of property should be prohibited provide a general rationale for particular decisions. They
cover both the particular case and a general category of
cases under which the particular case falls. So these princi
ples also dictate the proper disposition of relevantly simi
lar cases in the future.
Further, as legal rules are said to be "embedded" in
precedent, the principles that provide the rationale for
these rules are "implicated" in precedent decisions. Such
principles need not be as specific as the principle of invol
untary transfers just mentioned. They may be general struc-

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102

tural principles of legal practice as a whole, for instance,


the principles of stare decisis or legislative supremacy. In
either case, such principles function as evaluative backdrops
for the more detailed materials (e.g., statutes, precedents)
of the law.
Woven throughout this account of principles are the by
now familiar dual functions of explanation and justification.
Principles can be viewed as providing either general explana
tions

(as in the case of scientific explanations) or ultimate

justifications

(as in the case of moral argument). Or they

can, as Dworkin claims, provide both explanation and justifi


cation. That is, principles of law must be viewed in terms of
two distinct but mutually supportive "dimensions:"
(a) the dimension of "fit," which closely corre
sponds to the explanatory function mentioned
above, whereby a given principle (or set of
them) provide the best fit with existing law,
i.e., they best explain why and for what pur
poses existing law has been enacted;
(b) the dimension of "justification," whereby a
given principle (or set of them) provide the
best moral or political justification for the
structure of institutional rights and duties
stated in the explanatory principles.136
Dworkin captures both functions of principles partly by
exploiting systematically the ambiguity between these two
characteristics of principles: explanation and justification.
Thus, although his conception of a principle is clearly
rooted in the traditional legal conception, he suggests the
interplay between the two dimensions simply by not distin
guishing consistently the explanatory and justificatory

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103

functions of principles. But his point here does not rest


merely on such terminological sleight of hand. Rather, for
Dworkin, the internal goals of legal interpretation itself articulate consistency and the coherence of the system as a
whole - require that explanation and justification be insepa
rable in practice.
The details of Dworkin's claim will become clearer by
considering an alternative conception of the role of legal
principles: MacCormick1s view that principles provide ratio
nalizations of whole regions of law.137
For MacCormick,

"principles are relatively general norms

which are conceived of as 'rationalizing' rules or sets of


rules."138 That is, principles provide a general framework of
underlying values in virtue of which a given system of legal
rules can be shown to be internally coherent or to "make
sense together." This rationalizing function can be under
stood wholly descriptively: the principles that comprise the
general ground for coherence can be read off the contents the specific rules - of the system itself. Hence, one can
neutrally describe the general principles of any legal system
without first taking the Hartian "internal point of view"
toward i t .
In many respects, MacCormick's conception of legal prin
ciples mirrors Dworkin's. For instance, principles represent
the underlying value-rationales which provide the system's
internal coherence. Principles perform (for MacCormick as for
Dworkin) the dual explanatory-justificatory function: they

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104

both make existing rules of law more precise in their appli


cation and encapsulate the ultimate values embodied in those
rules. But the two conceptions diverge on two important
points: the legal validity of principles of law and their
consequent applicability in adjudication.
As a legal positivist, MacCormick's account of princi
ples builds upon a prior premise: the identity and validity
of all elements of a legal system ultimately depend on their
origin in authoritative enactment by recognized institutions
or by officials of the system. It is the system's rules,
legislative enactments and decisions in precedent, that
directly satisfy this criterion of recognition.
The case is different with legal principles,
There is a relationship between the rule of
recognition and legal principles, but it is
an indirect one... the principles which are
principles of law are so because of their
function in relation to [legal] rules, that
is, the function which those who use them as
rationalizations of the rules ascribe to
them.139
Principles have validity only parasitically, because they are
implied rationales for existing valid rules. But they are
logically posterior to rules. Indeed, given their logical
dependence on rules, some principles that function as ratio
nales need not even figure in subsequent adjudicative deci
sions .
MacCormick cites two principles,
(a)

Public discrimination between people on racial


grounds ought not to be tolerated.

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105

(b)

One has a general duty to avoid causing foreseeable


harm to one's neighbors.140

These are implicit rationales for certain regions of English


law. Hence, they satisfy the background function MacCormick
has assigned to legal principles. Nevertheless, the "neighbor
principle" is observed by adjudicating courts only as a
guideline.
[A] court is perfectly free to say of any
generic act or omission not covered by a
mandatory rule that [its] careless perform
ance. . . is not a ground of liability even
though its careless performance may cause
foreseeable harm.141
Prior to the enactment of the Race Relations Acts by
Parliament

(in 1965 and 1968), principle (a) enjoyed no. ex

press legal validity in English law. Even though such a prin


ciple is endorsed by a wide spectrum of the population and
functions as a rationale in much of English public law, it
"enters" the legal system as a valid principle of law only
through some explicit decision or enactment. Given the posi
tivist criteria of validity, the positivist is prepared to
admit that the law will frequently fail to reflect the polit
ical and moral convictions of the community.
For Dworkin, the political principle of nontoleration of
discrimination states citizen rights and duties that ought to
be given concrete legal effect. In Dworkin's view, the rights
granted in political and moral principles are more than mere
ly implicit rationales for their institutional, legal coun
terparts. They also explain why those existing legal rights

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106

have the features they have. In addition, they outline direc


tions in which legal rights must be expanded, the better to
bring them into conformity with the considered moral convic
tions of the community.142
Moreover, principles state what individuals are entitled
to have as a matter of political morality. Insofar as moral
rights are embedded in existing legal practice, they can be
found in existing legal rules. Insofar as they cannot be,
principles provide a means (especially for the judiciary) to
detect and remedy gaps between the existing rules and the
underlying,

justifying values the rules should embody.

Finally, a judge's institutional obligation to apply the


law (and to protect and enforce the rights embedded in law)
requires her consideration of legal principle. For a genuine
adjudicative decision is an exercise of constructive
interpretation. It identifies the legal rights and duties of
parties in a particular dispute. But this can be accomplished
only by portraying these rights and duties as flowing from a
coherent system of rules that is consistent and justified by
the political morality of the community. This cannot be done
by showing, as in the positivist account of hard case
adjudication, that these rights spring from the quasi-leg
islative acts of particular judges.
What is required instead is an explicit appeal to these
background principles of political morality and a determina
tion that the rules of the system are consistent with them.
Hence, as Dworkin so often claims, background principles

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107

"weigh" on the adjudicative decision,

"inclining" the outcome

in a certain direction.143

4. Rights. Background and Institutional

If principles allocate individual rights and duties,


what relation exists between such rights and duties viewed as
elements of a political morality and their legal counter
parts? In short, how do background moral rights connect with
institutional legal rights?
Discourse in political, moral and legal theory bristles
with language about rights. There are some "standard" con
ceptions. For instance, rights are often conceived as
claims to performance, either action or for
bearance as the case may be. usually against
other private persons. [Rights] are also a
claim against the state to recognition and
enforcement.144
Moreover, rights characteristically possess a correla
tive, duty-imposing feature: they entail a correlative obli
gation of someone else.145 Upon whom such obligations fall de
pends on the character of the right in question and its
source. For example, legal rights generally are conferred by
specific legal rules. Thus, the rule of criminal law which
prohibits the intentional physical invasion of another's per
son confers a universal right. All persons are subject to
this rule; hence, all persons have a right to expect others

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108

to discharge the obligation of forbearance required by the


rule.
Not surprisingly, Dworkin's conception of a right con
tains all these standard features. But rights have a special
significance for Dworkin's theory of law. At least in its
earlier version, his legal theory is. a theory of individual
rights and the constraints such rights place on the operation
of the legal system, both in the legislature and the judicia
ry. In this respect, the theory is not a conceptually neutral
analysis of 'law' or 'right.'
Rather,

(as was indicated earlier in section 2 above),

the core of Dworkin's legal theory is a conception of law


that is both conceptual and normative: the law of a community
consists of its legal practice and institutions as a whole
and the best moral and political justification of that prac
tice. Understandably, Dworkin's conception of a right
requires the same admixture of normative and conceptual ele
ments .146
But despite the overriding importance of rights - and
notwithstanding the elaborate typology of rights he develops
- Dworkin seldom provides a clear, basic conception of what
he means by a 'right.' Hence, in what follows some construc
tive interpretation is called into play. Based on this recon
structed basic conception of a Dworkinian right the question
of the connection between political morality and legal rights
will be addressed.

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Rights,

for Dworkin, are "trumps," i.e., indefeasible

individual claims that set basic limitations on the operation


of political institutions.
Individuals have rights when... a collective
goal is not a sufficient justification for
denying them what they wish... or not a
sufficient justification for imposing some
loss or injury upon them.147
It is clear that the conception of a right employed here is
rooted in political theory, and a specific political theory
at that, liberalism. For liberal political theory, rights are
the vehicles for institutionalizing the basic value commit
ments that characterize the liberal perspective: the moral
inviolability of individuals and their claim to respect as
autonomous persons.
This connection between Dworkin's general conception of
a right and liberal theory shows two important features of
that conception. First, the rights that individuals have are
ultimately a matter of political morality; that is, rights
indicate the modes of treatment of individuals which politi
cal morality mandates as a matter of justice. For instance,
no society can satisfy the liberal requirements of justice
without, in its institutional arrangements, maintaining a
level of respect for individuals as persons.
Second, and more important for our purposes here, the
rights authorized by political morality are abstract and uni
versal. It is not immediately clear what practical political
arrangements such rights require until an attempt is made to

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make them concrete, that is, to give them practical political


effect in political institutions. Rights in this sense pro
vide a general concept of the justifiable political aims a
society should pursue. What is required, in giving rights
practical effect, is a detailed conception of what practical
institutional arrangements

(and corresponding institutional

rights) are required by this concept.148


This interplay between concept and conception can be
clarified by instancing what,

for Dworkin, is the most basic

(and thus, most abstract) right authorized by political


morality:
the right to be treated as an equal, that is,
with equal concern and respect.149
For Dworkin, this represents the core right of political
morality.
As the core right, equal concern and respect is also the
unifying concept of political morality. To the extent that
the principles comprising political morality are coherent, it
is because each incorporates forms of equal concern and
respect.
Moreover, given the continuity between the law and its
underlying,

justifying morality, the coherence of the legal

system as a whole depends upon its embodying the background


right of equal concern and respect in all of its rules, deci
sions and acts.
This relationship also provides a framework for under
standing what is at stake in, for instance, political debate

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111

and legal argument. Assume a wide general agreement in soci


ety regarding the basic premises of political morality, in
particular, that equal concern and respect for individuals
captures the fundamental social conviction about political
justice.150
In light of this framework, specific political proposals
can be seen as strategies for institutionalizing equal con
cern. Such proposals are, in effect, a specific conception of
what equal concern requires in specific practical circum
stances. Legislation mandating government financial assis
tance to disadvantaged persons for, say, medical care, rests
upon a substantive conception of equal concern: individuals
deserve equal access to medical care. If a person's meager
financial resources would seem to preclude such access, she

is^till entitled to government assistance to make medical


care possible. To say that persons are entitled to such a
benefit is to say that this benefit is a right, a right based
on a more fundamental right to equal concern and respect.
This concept of a core right also gives us more insight
into the dynamic of legal argument and judicial decision in
litigation. Legal disputes and their adjudication take place
within a matrix of rules and principles that are themselves
products of this process of "concretizing" the background
right of equal concern and respect. Nevertheless, competing
arguments in legal disputes reflect competing conceptions of
what equal concern mandates in specific circumstances. Such
conflicts are possible because rules typically invoke lower

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112

order principles of political morality reflected in the


"localized" rules of the region of law within which the dis
pute takes place. In effect, each side contends that equal
concern, as expressed in the set of legal principles actually
being appealed to, demands that the court recognize and
enforce the right urged in its argument.
The judge,

for her part, must quite literally judge

which argument best captures the requirements of equal con


cern and respect in the specific instance. For Dworkin, what
is required of the judge is an interpretive judgment, and it
is a judgment of extraordinarily wide scope. Particularly if
the case at hand is a hard case, the judge must consider var
ious aspects of the law itself. In addition to the facts of
the case, the relevant rules and principles invoked and even
the institutional history of these rules in precedent hold
ings must be considered.
Moreover, the judge must decide how such concerns bear
on the question of which side's right ought to be enforced by
the court. Answering this question requires interpretation in
light of the background principles that justify the region of
law engaged in the case at hand. Finally, this regional
interpretation must be grounded by the overall moral point or
purpose of law as such, namely, to protect the right of indi
viduals to be treated as equals.
What is required, then, is a general justifying theory
of law, a "soundest theory of the settled law", as Dworkin
puts i t . Formulating such a theory, given its vast scope and

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113

its implications for issues in both law and political and


moral theory, is clearly a herculean task. And Dworkin
invents a mythical judge, Hercules, as a model adjudicator.
Hercules possesses the intellectual insight to discern how,
in highly specific disputes, the best justification of the
law in general dictates narrow, institutional rights in par
ticular.

5. The Soundest Theory of The Settled Law

The analysis of principles and rights given above meets


in Dworkin's notion of a soundest overall justifying theory
of law. Such a theory provides two things:

(1) a coherent set

of principles of political morality which justify the system


of legal practice actually in place in a given jurisdiction:
and,

(2) an adjudicative decision procedure aimed at

revealing, in any specific case at law, which side's rights


most merit legal enforcement from the point of view of polit
ical morality. In the remainder of this chapter the second
aspect will be considered. The first aspect will be discussed
in chapter 4.
Perhaps the best way to illustrate the role Dworkin sees
for the "soundest theory" is to examine an actual case at
law. The sample case will exemplify two important features.
First, as with all legal disputes, it is specific: a narrowly
drawn dispute between specific individuals contending over
specific rights and duties. Second, the host of elements,

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114

present in all legal disputes - background moral principles,


narrower legal rules, even social beliefs and customary prac
tices - are all fairly evident in it. My purpose in dis
cussing it is to show how the interpretation of a legal dis
pute in light of the soundest available background principles
of political morality is the most reliable method of reaching
decisions that preserve the coherence of the legal system as
a whole.
Brown v. Board of Education of Topeka151 is a landmark
case in American law; so famous, in fact, that it is unneces
sary to recount the facts of the case in any detail. But some
context setting is necessary.
In Topeka, Kansas, a group of schoolchildren and their
parents challenged the constitutionality of the racially seg
regated school system of that community. Their contention was
that existing lav;, in the form of the 14th Amendment's clause
granting equal protection of the laws, made separate educa
tional facilities based solely on race impermissible. The
Amendment,

in effect, grants individuals the right to race-

blind treatment,

including access to state sponsored educa

tion. This, of course, represents an interpretation of what


the "equal protection" clause requires. It is, in fact, a
conception, in Dworkin's sense of the term, of what equal
protection mandates as far as access to public education is
concerned.
The supposed acceptability of the segregated Topeka
school system, as of most American school systems of the era,

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115

rested on an earlier interpretation of the same clause, an


interpretation which had the added merit

(from the legal

viewpoint) of proceeding from a prior Supreme Court decision.


In Plessy v. Ferguson.152 the Court held that the requirement
of "equal protection of the laws" is satisfied by access to
educational facilities which, though racially segregated, are
of equal quality. The doctrine of "separate but equal" pro
vided for the constitutional right to equal protection, but
it imposed important qualifications on the scope of that
right.
Viewed in terms of Dworkin's account of adjudication,
the Court's holding in Brown was an interpretive judgment. In
finding for the plaintiffs, the Court judged the plaintiff
argument a sounder conception of the practical requirements
of equal protection in this instance. Further, it effectively
reversed the Plessy decision, finding the "separate but
equal" conception insufficiently wide in scope to accommodate
the legitimate right of individuals to equality of legal
protection in public education.
On Dworkin's view the decision in Brown is a construc
tive interpretation, an attempt to make sense of the elements
of the dispute

(in this case, the two competing conceptions

of "equal protection of the laws") in light of the best jus


tificatory principles one can construct to account for the
law as it is. It is appropriate, then, to ask: what grounds
or principles did the Court appeal to in recognizing and
enforcing the plaintiff's rights in Brown?

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Now, the argument for the decision involved, first, a


finding of law: the concept of "equal protection of the laws"
is best captured, in the case of public education, by a con
ception of equal access and equal opportunity. Second, the
decision involved demonstrating that education organized
according to the separate but equal doctrine necessarily
failed to embody that conception. But the actual grounds for
the Brown decision are by no means as clearly principle invoking as the Dworkinian account of adjudication requires,
Relying on the writings of sociologists and
psychologists... The Court declared that
segregation of children in public schools
solely on the basis of race deprives the
children of equal educational opportunities,
even where the physical facilities and other
tangible factors may be equal, because the
separation of black children only because of
race narrows opportunities to learn by
association with others in the community and
also generates a feeling of inferior status
that may affect their minds and hearts
throughout their lives.153
Under the Court's conception of equal protection of the
laws, what children subject to racial discrimination are de
prived of is their right to equal educational opportunity.
The primary ground offered for this conclusion is factual
evidence, which shows that the existing educational
arrangements do not embody equal opportunity. But on what
grounds, presumably of higher order background principle, can
the Court justify the finding of law to which it appeals? In
other words, what justifies the Court's interpretation of

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117

equal protection of the laws as mandating

(among other

things) equal opportunity in education?


One way of answering this question is

to ask another

one, how would Hercules decide the issue in Brown? The far
sighted Hercules would reach the correct decision, i.e., the
outcome that best preserved the overall coherence of the
entire legal system as a whole, by grounding his interpre
tation in the general principles comprising the soundest
justificatory theory of the law as a whole.
The aim in Brown or in any other case

is acomprehensive

interpretation. The most comprehensive interpretation in any


given case requires the interpreter to venture far beyond the
elements of the dispute at hand. The ultimate aim is to
arrive at an overall conception of the entire institution of
legal practice,

a conception that "internalizes the general

justification of the institution so as to make it available


for discriminations within the institution itself."154
Hercules task, then, is to develop a conception of the point
of legal practice that both explains the fundamental aims
that law is intended to pursue and shows how these aims are
justified by the most defensible principles of political
morality.155
Moreover, armed with this conception, Hercules can clar
ify the various elements of existing law, explaining the
actual meaning and import of legal rules by tracing their
relationship with the fundamental aims given in his concep
tion of law. Finally, Hercules can critically assess the law

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118

in light of his conception, noting the points at which legal


rules adequately embody law's fundamental aims and, thus,
cohere. Or, in cases in which rules fail to embody law's fun
damental aims, Hercules can note as much and, when necessary
and appropriate, supplement or repair the law accordingly.
Such, at least, is the abstract account of Dworkin's
soundest theory of the settled law and the role he envisions
for it. There are two structural ideals embedded in the very
notion of a soundest theory of the law as a whole that reveal
Dworkin's deepest presuppositions.
First, the soundest theory of the settled law aims at
comprehensiveness,156 indeed, at complete closure. The moral
justification it arrives at must accommodate the aims and
purposes in each of the various regions of law. In effect,
Dworkin assumes at least the logical possibility that there
is an underlying skeleton of moral principle that all regions
of law share. Adjudication by a judge with the intellectual
powers of a Hercules would permit making explicit those moral
aims and values equally served by, for instance, both con
tract law and criminal law. In addition, the mere fact that
such underlying common aims are not intuitively obvious is an
exceedingly weak argument against their existence. Dworkin's
invention of Hercules is meant as a device for showing as
much.
This brings us to the second structural ideal at work in
Dworkin's notion of the soundest theory. For the foregoing
comprehensive interpretive justification to be possible,

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there must be some ultimate ground for thinking that the law
as a whole is coherent. That is, there must be some principle
or set of principles of political morality which both set
forth the underlying, general aims of law and help to illumi
nate existing law by showing it to be a practical attempt to
realize those aims.
The concept of the soundest theory of the settled law
embodies Dworkin's faith that law, from the perspective of
political morality, is a justifiable and, thus, coherent
enterprise. Further, given the possibility of a coherent,
comprehensive understanding of those aims that the law ought
to pursue insofar as it is justifiable,

"for all practical

purposes there will always be a right answer in the seamless


web of our law" to questions about specific, institutional
rights.157 The problem, of course, is that no mortal judge is
a Hercules. For actual judges, the web of law seems far from
seamless.
Nevertheless, what Dworkin considers here is an ideal
portrayed by means of an idealized adjudicator. And to return
then to our original question: how would Hercules, armed with
his soundest theory of the settled law, resolve the dispute
in Brown?
Recall that the issue concerns the best adjudicative in
terpretation of the 14th Amendment's equal protection clause
and the practical requirements that interpretation entails in
the case of public education. Hercules would begin by ques
tioning the legal text itself: why does the Constitution

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include a clause to the effect that individuals are entitled


to equal protection of the laws?
The answer to this question must embrace more than the
text of the rule itself. There is also the institutional his
tory of the Amendment, specifically, its enactment in the
postwar Reconstruction period when many legal obstacles to
racial equality were being systematically dismantled. More
over, there are also the frequent citations of the clause in
precedent decisions, citations which outline a tendency to
interpret it "as to insure genuine equality of public treat
ment to racial minorities."158
Finally, there is the all-important interpretive ques
tion of justification: what justifying principles are implied
by the "equal protection" clause? This is the "regional"
interpretation,

restricted only to the rule itself. There is

also a "global" interpretation: what principles of political


morality are implicated in legal practice as a whole and how
do they connect with the regional principles specifically
germane to the "equal protection" clause?
Hercules must make a comprehensive assessment of his
community's legal practice from the point of view of its
political morality. He does so as a member and participant,
with an understanding of what considered convictions of
political morality prevail in his community. His superior
intellectual powers allow Hercules to construct the most
cogent and defensible version of those convictions and to
show, moreover, how they are embedded in existing law.

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121

As stated in section 5, the core values of political


morality that Hercules discovers embedded in legal practice
as a whole are (unsurprisingly) the liberal values of the
moral inviolability of the individual and respect for indi
viduals as autonomous persons. These values ground an
abstract right - to equal concern and respect as a person that is generalized throughout the various regions of legal
practice. It is generalized in that it functions as a justi
fying ground for the narrower, more specific regional rights
in specific areas of law.
This abstract right is also the underlying justification
of the more concrete,

specific right, conferred in the 14th

Amendment, entitling individuals to equal protection of the


laws.. All of this taken together helps us to better under
stand the interpretive context of the dispute in Brown. For
this dispute is actually a contest between two competing
conceptions of the fundamental background right of the legal
system as a whole: the right to equal concern and respect.
Thus, Hercules' basic question is this: of the two rival
conceptions at issue in Brown - "equal opportunity and equal
access" or "separate but equal" - which best captures the
content of the underlying moral right to equal concern and
respect: For Hercules, only an educational system which em
bodied the conception of equal opportunity,
effect,

(and was, in

"color-blind" in the way envisioned by the 14th

Amendment's "equal protection" clause), would effectively

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122

institutionalize the background right of equal concern and


respect.
Sketchy though it may be, this account does illustrate
the role Dworkin's soundest theory of the settled law plays
in judicial interpretation. The principles arrived at through
constructive interpretation are the principles that comprise
the soundest theory. Moreover, only decisions arrived at in
light of those principles will, for Dworkin, preserve the
internal coherence of legal practice.
But there are equally important issues left unresolved
by this account. For example, by what procedure does Hercules
- or more important, actual judges - determine the content of
a community's political morality? What criteria can be
applied to separate genuine from spurious principles of
political morality? And finally, there is MacCormick's
question,

Is there a single soundest theory of the settled

law, or are there many equally sound though conflicting


justifying theories for existing legal practice? 159
An even deeper issue lurks in the background as well,
throughout his work has Dworkin emphasizes the fundamentally
interpretive character of legal argument and analysis. In a
trivial sense, this is both true and uncontroversial. Hart's
account of the application of legal rules illustrates the in
terpretive component of legal reasoning, even from the point
of view of positivism.
But as the foregoing account has shown, for Dworkin,
'interpretation' is a broad and comprehensive concept, one

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123

which covers a great deal of terrain in legal reasoning, and


one for which reference to the justificatory background of
legal practice is essential. What remains to be explored,
then, is the underlying justification of Dworkin's broad
claims on behalf of interpretation. This justification con
sists in Dworkin's belief that law itself is as an interpre
tive concept, and the means by which communities give practi
cal, institutional form to their deepest, most considered
convictions of political morality.
That law as an interpretive concept is the core of
Dworkin's legal philosophy, playing a role in his theory of
law analogous to Hart's basic claim that law is a union of
primary and secondary rules. Hence, it will also provide an
underlying theoretical framework by means of which more spe
cific questions about Dworkin's legal philosophy can be
addressed. It is to these issues that we now turn.

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124

Chapter Four:
Law As An Interpretive Concept

The previous chapter began with five propositions that


summarized the basic elements of Dworkin's theory of law.160
The first four stated the particulars of the theory, includ
ing its distinctive conceptions of rights, principles and
legal argument, and the roles played by these conceptions in
adjudication. Moreover, the theory was applied to a series of
actual cases involving issues ranging from negligence liabil
ity to constitutional interpretation.
The discussion in chapter 3 also showed that Dworkin's
claims rely heavily upon his conception of interpretation as
"constructive." This sort of interpretation is aimed at con
structing the principles of political morality that provide
the background justification for existing law. Since these
principles are also needed for elucidating the meaning and
content of existing law, Dworkin argues that any explanation
of what the law is must include reference to the best overall
justification of the law.
But why must we accept Dworkin's claims about interpre
tation, much less his subsidiary conclusion that the norma
tive and conceptual elements of law are inextricably entan
gled? Dworkin's answer is given in the last of the five sum
mary propositions that summarized Dworkin's theory of law:
Law is an interpretive concept employed for
constructing an abstract description of the
point of legal practice as a whole and for

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125

justifying that practice in light of the com


munity's political morality.
This is not just a more explicit statement of what
Dworkin means by interpretation. It is also the key claim of
his entire legal philosophy because it expresses his distinct
conception of what law is. It provides as well a meta-theory
for Dworkin's theory of law. That is, to say that law is an
interpretive concept is the underlying justification for the
more detailed claims about rights and principles that com
prise the body of Dworkin's theory. Further, in terms of the
framework for legal theories given in chapter 1, the inter
pretive concept 'law' is the conceptual nexus at which the
normative-evaluative and conceptual-descriptive elements of
Dworkin's theory meet. This can be shown by sketching briefly
what may be called the core argument of the theory.161
Dworkin's legal theory emerged first as a fairly narrow
challenge to legal positivism on the issue of hard case adju
dication. In hard cases, the settled legal rules

(or legal

data) to which judges are bound to appeal are inconclusive,


i.e., they dictate no unique adjudicative result. On the pos
itivist account,

judges are then free to appeal beyond the

rules, that is, to use any of a variety of extra-legal data


in reaching their decisions.
Dworkin acknowledges the indeterminacy of hard cases and
the consequent necessity for judges to appeal beyond the
rules in settling such cases. But in doing so judges are
still bound to consult and apply the relevant legal data.
Dworkin differs from positivists in the scope he gives to

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126

legal data. The term applies not only to explicit legal rules
but also to implicit legal principles that are embedded in
the law and reflect the background moral and political justi
fication for the law.
Judges discover legal principles by interpreting the
explicit legal data. This requires them to view legal prac
tice as a whole in terms of the background values law seeks
to incorporate and promote. The principles revealed by this
interpretive process provide grounds for specific decisions
in particular cases. Moreover, since such principles reflect
the continuity between legal practice and its background jus
tification, they promote adjudicative decisions that preserve
the consistency of law with political morality.
But why is Dworkin's interpretive model of adjudication
preferable to the quasi-legislative model proposed by legal
positivism?162 Because, argues Dworkin, the interpretive model
better illuminates the nature and function of legal argument
and decisionmaking in general. Even in clear cut, easy cases,
adjudicative outcomes represent interpretive decisions about
the concrete, practical requirements that are demanded by the
abstract background principles that underlie and justify the
law. In hard cases these mechanisms of interpretation and
justification are simply closer to the surface and thus more
obvious.
This last claim and indeed Dworkin's whole theory rests
on a deeper claim: legal argument and decisionmaking are in
terpretive because law itself is interpretive. In other

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127

words, law is a concept the function of which is to interpret


the political morality of a community and translate it into a
system of institutional practice.
The legal practice of a community, i.e., its system of
of legal rules and principles and the institutions and offi
cials' whose function it is to expound and apply them, is the
outcome of a process of constructive interpretation. The aim
of this process is the construction of a set of background
principles for law that serve two functions.
First, such principles function as internal standards,
in that they guide, and ultimately yield, institutional deci
sions that are consistent with the law's internal values.
Second, they forge justificatory links between legal practice
and political morality to insure that law accurately and
effectively reflects its background justification.163 In both
cases, the interpretive process and the background principles
it develops are reflections of an overall conception of law that of "law as integrity" which takes fidelity to principle
and the preservation of internal coherence as the central
features of legal practice.
The foregoing core argument is the common thread in
Dworkin's theory that ties together his specific claims about
rights and principles in Taking Rights Seriously and his gen
eral views on interpretation and integrity in Law's Empire.
His argument can be reduced to a single inference. Because
law is interpretive and integrity is its regulative ideal,

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128

legal institutions must act in ways that respect the back


ground rights and principles that anchor and justify law.
However, the connections among the elements of this
argument are far from clear. Nor does Dworkin provide a very
detailed explanation of the interpretive model he employs or
the theory of interpretation on which it depends.
In this chapter I will supply just such clarity and
detail. Specifically,

I will address three questions. First,

what is Dworkin's notion of interpretation and how does it


function as the connecting link to the earlier and later ele
ments of his legal theory? Second, how does Dworkin derive
from this notion of interpretation both a concept of law and
a substantive conception of law as integrity? Finally, how
does the concept of law as integrity enable Dworkin to
resolve two of legal philosophy's most troublesome issues:
(1)

the basis for judges' adjudicative obligations, and (2)

the relationship between law and morality?

1. Disagreement and the Grounds of Law

In Law's Empire. Dworkin shifts his focus from rights


and principles to the issue of interpretation in the law. The
shift in focus permits a recasting of a number of traditional
questions in legal theory. This in turn provides a new line
of argument for Dworkin and a new way of highlighting his
dispute with legal positivism.

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129

In chapter 1 I presented a traditional model of a legal


theory in terms of four variations on the basic question,
what is law? For Dworkin, one of these questions - what is a
good reason for a judicial decision? - represents the central
issue in legal philosophy.164 As chapter 3 has shown,
Dworkin's answer to this question is framed in terms of
rights. The best justification for a judicial decision is
that in a given case there is some institutional, legal right
that demands recognition and enforcement by a court. This is
so even in cases in which the rights in question are not
obvious but are revealed only by exploring the moral and
political principles that underlie the law.165
The interpretive perspective on law, however, places a
different question at the center of legal theory. This can be
seen by considering yet again the case of Riggs v. Palmer.
Legal practice, Dworkin reminds us, is fundamentally
argumentative. So in Riggs. as in any other case, the core of
the dispute is disagreement about what the law says regarding
a specific situation. Each side in the dispute offers compet
ing arguments designed to establish one "reading" of the law
over another. Specifically, in Riggs disagreement centered
upon whether the law governing wills permits an heir to
inherit even if he has committed murder to do so. The ques
tion Dworkin asks is this: how is this disagreement best
explained?
In Riggs. both plaintiff and defendant disagree over
whether the proposition,

"Elmer Palmer is entitled to inherit

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130

under the terms of his grandfather's will,


-'.is true. One way
of explaining this disagreement would be to regard each
side's argument as an appeal to a shared, factual ground by
which legal propositions may be judged true or false. Thus,
both sides might recognize the duly enacted statutes of wills
as the ultimate ground of truth or falsity in this case. This
would make the dispute an empirical issue about what the
statutes of wills say, an issue to be settled by appeal to
the relevant legal facts. And the facts in this case, the
statutes of wills themselves, would uphold Elmer's claim.
This empirical account of the disagreement is deficient
on two counts. It trivializes the dispute in Riggs and it
fails to fit the actual adjudicative outcome. If the ground
of law in every instance was a clear, undisputed set of legal
facts

(e.g., statutes, precedent holdings), reference to

which would determine uncontroversially the truth or falsity


of specific propositions of law, the problem of hard case
adjudication would seldom arise. Moreover, the dispute in
Riggs would never have reached the trial stage. For on this
view of law as "plain fact," "the law is only a matter of
what legal institutions, like legislatures and city councils
and courts, have decided in the past."166 The relevant law in
Riggs clearly indicated an outcome that hardly required for
mal adjudication.
For Dworkin, there is a clearer and more accurate
account of the disagreement in Riggs. The plaintiff and
defendant disagreed not only about the truth of the main

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131

proposition of law in this case, but also about the grounds


of law themselves, i.e., the background propositions by
virtue of which individual propositions of law (like the one
in Riggs) are made true or false. For the plaintiff this case
involved other significant issues, notably that Elmer had
murdered the person he said he had a valid claim to inherit
from. This meant that appeal to the plain facts of the
statutes of wills was inappropriate, because incomplete.
The proper grounds for judging whether Elmer was enti
tled to his inheritance are the deeper background principles
and values that are the implied justifications for the law in
general. Only by appealing to these grounds can the resulting
decision be consistent with the law as a whole.
For Dworkin, the disagreement in Riggs is not empirical
but theoretical. That is to say, both sides' arguments
invoked a particular theory of what the grounds of law prop
erly are. The defendant's argument appealed to the plain fact
view. The plaintiffs' appealed to the view that the ultimate
grounds of law are the background principles which are
implied by and justify existing legal practice.

In light of

the discussion in chapter 3 above, we can see that these


grounds are the elements of the "soundest theory of the set
tled law." A further implication of the plaintiffs' view is
that the coherence and cohesion of law as a form of social
practice depend upon the degree to which legal institutions
and activity maintain fidelity to the justifying grounds of
law. Both views, the plaintiffs' as well as the defendant's,

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are theories about what law in general is, since both propose
distinct grounds for identifying what the law is on any given
issue.167
For positivism, theoretical disagreement is simply not
possible, since
unless lawyers and judges share factual cri
teria about the grounds of law there can be
no significant debate about what the law
is. 168

The only possible type of disagreement positivism can


countenance is empirical, and this type of disagreement
always has one of two outcomes in each case. Either (1) the
shared, factual grounds of law - and these will typically
include some set of criteria, often semantic,

for identifying

what is to count as law - decisively indicate the truth or


falsity of a given proposition of law; or (2) the factual
test given in the grounds of law will indicate that the law
is silent on the issue in question, thus requiring that the
judge fill in this gap in the law with a rule-creating judg
ment of her own.
But as the dispute in Riggs shows, there can be dis
agreement not only about what the law says, but also about
the proper grounds one looks to to discover what the law
says.169 This sort of disagreement is not only possible but
inevitable because, according to Dworkin, every legal argu
ment contains

(either explicitly or implicitly)

tation of legal practice on two levels. First,

an interpre
it embodies

both a specific view of the overall point of law and a claim

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133

that this point or purpose is the one best justified by the


political morality of the community. Second, it identifies
this justifying point as the proper ground for determining
the truth or falsity of specific propositions of law, because
only such a ground can provide an internally coherent view of
what legal practice and its on-going institutional history
actually amount to.170
Legal positivism, because it presupposes a shared, fac
tual ground for law, is incapable of accounting for cases
like Riggs in which legal dispute involves the grounds of law
themselves. This is surely Dworkin"s strongest argument
against positivism in general. But since its force depends
upon his account of interpretation and the interpretive char
acter of law in general, it is to those issues that we must
now t u r n .

2. The Interpretive Attitude

Dworkin"s claim that law is a fundamentally interpretive


enterprise relies on a picture of the law hinted at by his
continual references to legal practice. According to this
picture, law is a complex form of social activity with an
equally complex set of internal goals, values and standards,
as well as a set of unique internal obligations that fall
upon it's practitioners. But law is a social practice of a
special character. It directly involves all members of soci
ety since it stipulates the enforceable rights and responsi-

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134

bilities of individuals and institutions. Moreover, the law


directly engages community convictions about justice and the
moral justification of political arrangements. These convic
tions provide both the context and the content for discourse
about and within legal practice.171
It is certainly not uncommon to consider law as a social
practice. The picture mentioned here is simply a reminder
that there are two possible perspectives on the law as a
social activity.
First, law can be approached externally, as a social
phenomenon to be described. The end result of this approach
is a portrayal of law as a social fact, that is, as a system
of rules governing institutional and individual conduct, sup
ported by coercive sanctions, and enjoying a high degree of
social acceptance and compliance. In large part this is the
descriptive picture of law found in legal positivism.172 From
this point of view, legal practice makes sense primarily as
an elaborate mechanism of social control.
But law can also be approached internally. From this
perspective, that of a participant,

law is a collective

enterprise or set of practices. This is a natural way of


approaching law, since we are all citizens subject to law's
expectations.
As a participant, viewing legal practice from within,
one characteristically adopts a unique, value-laden attitude
toward this practice. A participant regards law not just as a

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135

social practice that exists as a brute fact, but also as an


activity that has a value. The law
serves some interest or purpose or enforces
some principle - in short that it has some
point - that can be stated independently of
just describing the rules that make up the
practice.173
Moreover, this understanding of the overall point or
purpose served by the law conditions one's understanding of
the content of law as well. For what the law requires in spe
cific instances is not, insofar as law is believed to be
coherent, merely arbitrary but
is sensitive to [law's] point, so that the
strict rules [of law] must be understood or
applied or extended or modified or qualified
or limited by that point.174
The point of law not only clarifies the meaning of specific
legal rules; it also connects these rules with their justify
ing grounds. For one arrives at a conception of the overall
point of law by proposing for legal practice "... some scheme
of interests or goals or principles that [legal] practice can
be taken to serve or express or exemplify."175
Dworkin's point is that the internal attitude of the
participant in legal practice is best captured in the notion
of interpretation. When one interprets an activity like legal
practice, the aim is to discover the overall meaning of its
various elements, normally by relating them to the ultimate
purpose served by the activity.
But there is a qualification that needs to be added
here. Interpreting the law from the internal standpoint of a

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136

participant is not a neutral quest for the meaning of legal


practice. The interpreter is situated within the practice
itself and her interpretation presupposes an acceptance not
only of the goals of legal practice but of the value and
worth of these goals as well. Hence, interpretation is also
constructive, that is, it aims to show that legal practice is
the best possible expression of the underlying goals or point
embodied in law.176 "Best" here has two meanings. First, legal
practice is best if it is the most consistent, internally
coherent example of the type of practice that it is. Second,
legal practice is best if its overall point is most consis
tent with, and thus, justified by the community's background
convictions of political morality.177
In short, constructive interpretation, as Dworkin
describes it, is an attempt to formulate the justifying point
of the law as a whole. Built into the point itself is the
claim that legal practice so understood is the best, most
consistent and justifiable,

practical expression of the

political morality of the community.178


This is a forbiddingly abstract description of interpre
tation. To make it more concrete, let us consider a social
practice less lofty and complex than the law, that of cour
tesy .179
How would one interpret the practice of courtesy as a
participant? The interpretation would have three stages, each
one partly determined by the fact that the interpreter is
courteous, that is, is a participant in a shared practice.

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137

At the initial, pre-interpretive stage, one identifies


the rules and standards, adherence to which constitutes cour
teous behavior. A rule that requires peasants to remove their
hats in the presence of the nobility is a clear historical
example of a rule of courtesy. Such rules also provide a
basic paradigm for the behavior typical of the institution of
courtesy.
Next, the basic interpretive question is asked. Given
that courtesy flourishes as a social practice, what general
justification can be found for it? The answer to this ques
tion must be complex, since it must indicate both what pur
poses courtesy is designed to serve and whether these pur
poses are worth pursuing.
An interpretation of courtesy, then, is part description
and part justification. It must describe the actual features
of courtesy, i.e, the rules and conduct that constitute the
practice. Otherwise, it could claim no validity as an inter
pretation of courtesy rather than some other activity.180 Fur
ther, it must justify courtesy by showing how the practice
embodies an underlying point or purpose that is itself worth
while. It is at this point that the background moral convic
tions of both the interpreter and his community are engaged.
For the practice of courtesy entails,

(to speak loosely), the

underlying moral claim that the point pursued by courtesy is


morally desirable, and hence, that the practice of courtesy
is itself morally justifiable.

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138

The interpreter may conclude that the justifying point


of courtesy, based on the type of rules it contains, is to
show respect for others. Respect provides the basic or core
concept of courtesy. This is so because the rules that spec
ify what courtesy requires, when considered together, make
the most sense when seen as expressions of this underlying
point or purpose. Moreover, since the communitys moral con
victions about respect deem it valuable, courtesy as a an
institutional expression of respect is morally justified and
worth pursuing.
But what specific forms of conduct are required by a
commitment to courtesy as respect? Does courtesy really
require,

for instance, that the peasantry recognize the

higher social rank of the nobility? Does courtesy, viewed as


an institutional expression of respect, also require defer
ence to others based on differences in age and gender? These
questions signal the third stage of interpretation. Having
arrived at the justifying grounds of courtesy, argument can
begin within the practice over the concrete requirements of
courtesy in specific cases. The motivation at this stage is
to make courtesy an internally consistent practice embodying
respect.
Interpretation at this stage is aimed at providing a
specific content for the practice of courtesy, each element
of which bears a clear relation to the underlying point of
the practice as a whole. The aim, in other words, is to pro
vide a conception of just what forms of conduct and behavior

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139

courtesy, as a practice designed to express respect, must


include.
Reform and repair of the practice are paramount objec
tives at this stage. Moreover, community convictions about
respect may evolve, and this will require corresponding
changes in the conception of courtesy as a practice for
expressing respect. For example, the community that practices
courtesy may no longer think that social rank deserves spe
cial recognition, even though the underlying conviction about
the value of respect has not changed. A plausible conception
of courtesy, then, would reflect such changes in community
views. Specifically, this means that courtesy would no longer
be conceived as demanding formal expressions of respect for
social rank.181
The interpreter of courtesy imagined here reaches an
understanding of the practice by adopting the internal, par
ticipant's point of view. Her understanding of the practice
has both descriptive and evaluative components. Viewing cour
tesy from within, the interpreter discovers the conceptual
connection between courtesy and respect, and then tries to
formulate a specific content for the concept of respect. The
resulting conception must both fit the details of courtesy as
they stand and show that these details accurately express the
underlying moral value placed on respect by those who prac
tice courtesy.182
Courtesy is a relatively simple social practice. Its
interpretation is correspondingly simple and straightforward.

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140

Even though law is a vastly more complex practice, the inter


pretation of it proceeds in exactly the same way.

3. The Concent of Law

An interpretive understanding of legal practice begins


by identifying those practices and institutions that count as
legal in a given community. This seems obvious, but it speaks
to a central controversy in legal philosophy. Positivism
takes the problem of identifying what law is as the founda
tional issue in the philosophy of law. It is the source of
positivism's quest for a factual test for law and for the
positivist separation of conceptual analysis from normative
evaluation in legal theory.
Dworkin, however,

finds this problem a distraction, not

a serious or foundational issue in legal philosophy. As will


shortly become clear, his approach to the problem of identi
fying law is another of his original contributions to the
philosophy of law.
The culture in which an interpreter of law is situated
presents paradigm examples of legal practice: institutions
such as courts and legislatures, sets of propositions of law
like the penal codes. At the pre-interpretive stage, there is
broad cultural consensus that these paradigms represent the
most significant landmarks in the domain of law. In view of
this underlying consensus about what legal practice contains,
any prospective interpretation of that practice must include

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141

and account for these paradigms above all if it is to have


even minimal plausibility.
But this cannot be accomplished by first devising a fac
tual standard that specifies the features in virtue of which
any institution or proposition is deemed legal. Devising such
a test presupposes that the interpretive problem - that of
finding the justifying point of legal practice as a whole has already been solved.183
So the interpretive process begins with "a fairly uncontroversial preinterpretive identification of the domain of
law."184 As with courtesy, the crucial initial move is to dis
cover the central concept that captures the overall point of
legal practice, What concept, then, best captures the various
institutions and practices identified pre-interpretively as a
legal?
For Dworkin, determining the central concept of legal
practice requires understanding the wider political setting
in which the law operates. Law, from this perspective, is the
basic link between citizens and government. Characteristi
cally governments pursue various political ends. Some of
these involve collective goods and interests, others involve
interests specific to governments themselves. But in all
cases governments exercise the collective force over which
they have a monopoly to achieve their ends.
In light of this, the underlying point of all legal
practice and the basic purpose expressed in the law is the

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142

guidance and constraint of governments' use of power. This


point is expressed in the following standard:
Law insists that force not be used or with
held, no matter how useful that would be to
the ends in view, except as licensed or
required by individual rights and responsi
bilities flowing from past political deci
sions about when collective force is justi
fied. The law of a community... is the scheme
of rights and responsibilities that meet
[this] complex standard.185
Law is a complex practice so its basic concept is corre
spondingly complex. The basic concept also reflects substan
tive commitments in political theory, for it presupposes, in
its formulation of the basic point of legal practice, that
law's overall purpose is to limit the power of government.
This is a cardinal doctrine of liberal political theory.186 In
incorporating this normative position into his conceptual
understanding of law, Dworkin invites the charge that he has
confused evaluation and description.
But for Dworkin separating evaluation and description
risks missing the point of law. The reason f o r this is that
the content of a community's legal practice manifests not
only the overall purpose law is designed to attain, but also
the extent to which this purpose is justifiable. The whole
point of viewing law as essentially interpretative is to dis
cover the fundamental point at which legal practice and its
best justification come together. The function of this justi
fying point, once it is discovered, is to show in specific
cases what the law requires or permits. And what the law is

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143

seen as requiring or permitting in specific cases represents


the best expression of the underlying, guiding point of law
as a whole.
Moreover, Dworkins notion of justification is complex.
It refers first, to the fact that specific rights and respon
sibilities in the law must be grounded in the basic, justify
ing point of law, the constraint of public force. But this
point itself requires justification by reference to the com
munity's basic moral convictions about the proper arrangement
and administration of its political life. Ultimately,

it is

to these convictions that legal practitioners must look for


guidance if they expect their actions to be not only legally
consistent but politically justified.187
Dworkin's concept of law holds that the core content of
legal practice is the constraint of public coercion. Most of
the details of legal practice flow from this overall point.
But this concept is abstract in that it is "compatible with a
great many competing claims about exactly what rights and
responsibilities... do follow from past political deci
sions .1,188
In other words, the concept of law gives merely a rough
outline of legal practice, portraying it as a system of con
straints on public coercion and as organized into a scheme of
individual rights and responsibilities. The second stage of
interpretation requires the formulation of a substantive con
ception of law that gives a content to the abstract features

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144

of law specified by the concept. Specifically, the conception


of law must contain these three features,
[A]

The overall point or purpose of constraining public co


ercion and doing so by means of a scheme of rights and
responsibilities such as one finds in legal practice.

[B]

The manner in which law's overall point is best


expressed by existing legal practice.

[C]

The way in which legal rights and responsibilities flow


from past political decisions and the pressure for con
sistency this creates within legal practice.
There are various conceptions available for interpreting

legal practice. The conception will not only address the


three features of law given above but will do so by portray
ing "legal practice as a whole in its best light."189 For
Dworkin, the best overall interpretation is law understood as
integrity.
Law as integrity is the requirement that law be coherent
in principle and that those responsible for deciding what the
law is see and enforce it as coherent in this way.190 Specifi
cally, integrity means that there is some overall rationale
for the law that is consistently served by legal practice.
Moreover, this rationale or justifying point must be
reflected in all the features of legal practice, particularly
in its allocation of rights and responsibilities.191
The role of law as integrity is to show how these claims
about overall coherence can account for the ways in which
legal practice actually operates. So the central questions

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145

for law as integrity are these: Why does law require that
public coercion be used only in ways permitted by the scheme
of rights and responsibilities sponsored by past political
decisions? And to what extent should current and future legal
practice continue to adhere to this scheme? The answers to
these questions must both justify and explain existing legal
practice.
Law as integrity proposes two related answers to these
questions. One is based on the deep moral background of legal
practice, the other on the internal standards for guiding any
activity that has a unifying point or purpose.
First, recall that law functions at least partly to give
the political morality of a community a practical, institu
tional form. Legal practice is that form, so it will
inevitably reflect the political morality of its community.
But it does so in a highly abstract way, so only the most
general values of political morality are actually be embodied
in the scheme of legal practice.
Paraphrasing Hilary Putnam, we might say there is a
"moral image of the law" that interpretation tries to elicit
in order to clarify law's background moral justification.192
Law as integrity proposes that the moral ideal of equality193
is the central value embodied in the law. Because law is an
institutionalized means of establishing equal concern and
respect for all members of the community, it finds its justi
fication in the commitment of the community to equality as a
moral ideal.

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146

Moreover, the purpose of equal concern and respect is to


insure that no individual's interests are sacrificed merely
to serve some collective end. So the best way of effecting
such equality is to constrain the exercise of collective,
governmental force by allocating specific claim-rights to
individuals. This is precisely the structure of existing
legal practice. Hence, law as integrity succeeds in connect
ing law's background justification with the best account of
law's actual features.194
Law, then, is a matter of securing equal concern and
respect for all citizens. It is also an on-going activity, a
continuing process of interpreting this form of equality and
determining what it requires in specific situations. How
should this interpretive process operate, particularly since
law's institutional structure requires that the rights and
responsibilities recognized as legal must "flow from" past
political decisions?
Dworkin's answer to this question comprises the second
main thrust of his conception of law as integrity. The
details of his answer, however, should already be clear from
the discussion of adjudication in chapter 3.
Integrity demands that both judges adjudicating the law
and legislators creating it strive to maintain the law's
internal consistency. This means that they must interpret the
law in terms of its overall rationale or justifying point,
that of securing equal concern and respect for all citizens.

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147

This aspect of integrity will be called moral coherence,


since it connects law explicitly with its justifying grounds.
Integrity also demands that legal practice remain con
sistent with its own past. That is, the rights and responsi
bilities recognized and enforced in the past exert a con
straining pressure on legal practice in the present. This is
because past decisions of legal practice, viewed in the sym
pathetic light cast by constructive interpretation, are pre
sumed to be morally coherent in the sense outlined above.
This presumption can turn out to be unwarranted, of course.
But this will be revealed only by further interpretation in
the ongoing practice of law. In any case, integrity's demand
that the law be consistent with its own past will be called
internal coherence.
These two requirements function as regulative ideals for
legal practice. But they would apply in roughly the same way
to any collective activity designed to advance a basic,
underlying point or purpose.
These requirements also embody a factual claim. The
grounds of law, the past political and legal decisions from
which law's rights-based constraints on public force flow,
are stable and comprehensive.195 But they may not be (in fact
they rarely are) explicitly invoked in the valid past deci
sions of legal practice.196 So the interpretive process must
on occasion refer directly to law's grounds in order to more
clearly establish the internal connections between background
justification and foreground decision.

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148

As Dworkin states it, integrity's requirement of overall


consistency and coherence means that
rights and responsibilities flow from past
decisions and so count as legal, not just
when they are explicit in these decisions but
also when they follow from the principles of
personal and political morality the explicit
decisions presuppose by way of justifica
tion.^
Here we find the earlier and later versions of Dworkin's the
ory converging. In Taking Rights Seriously, consistency in
adjudication could be achieved only if judges occasionally
invoked principles implied as justifications for the statutes
and precedents they must interpret. The complete set of these
principles is the soundest theory of the settled law. It is
the sum total of justificatory principles implied by all
regions of the settled law.
In Law's Empire, we find the basic value that is the
source for the soundest theory of the settled law. It is the
ultimate justifying point of legal practice as a whole, to
secure a systematic form of equal concern and respect for all
citizens in the community. Moreover, since legal practice as
a whole is viewed as the best means of securing such equality
in the community, law's practitioners can most effectively
contribute to this end by striving to maintain the integrity
of the law as a whole.198

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149

4. Two Applications

We have identified two central features of Dworkin's


notion of law. First, law is a fundamentally interpretive
activity. Specifically, legal practice consists in the ongo
ing interpretation and practical implementation of the commu
nity's deepest convictions of political morality. Second, the
best account of this interpretive process, i.e., the account
that best fits and justifies the way legal institutions actu
ally function, is that interpretation is governed by the
ideal of integrity. In other words, the interpretive activity
that characterizes legal practice is aimed at maintaining the
internal consistency and moral coherence of the law as a
whole
Law as integrity represents Dworkin's attempt to steer a
middle course between the twin orthodoxies of positivism and
natural law. But has Dworkin provided here a useful concep
tion of law, one capable of addressing the perennial issues
of legal philosophy? We can answer this question by applying
law as integrity to two such issues,
tion of judges in adjudication.

(1) the role and obliga

(2) the connection between

law and morality.


First, consider the issue of adjudication. Integrity
seems most at home as a principle of adjudication. Hence, the
best test of what it requires will be to ask what it requires
of judges.

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150

At the very least, integrity constrains judges to apply


the law in accordance with its settled grounds. In other
words, adjudicative decisions in the present must be consis
tent in principle with the clear and uncontroversial deci
sions of the past. But fulfilling the requirements of
integrity demands some fairly complex interpretive reasoning
in actual cases.
Consider the now familiar case of McLoughlin v.
O'Brian.199 Mrs. McLoughlin, the plaintiff, sustained emo
tional injury as a result of witnessing the injuries her fam
ily suffered in an accident caused by O'Brian's negligence.
On the

basis of past precedents regarding emotional injury,

sheclaimed she was entitled to

compensation for her injury -

even though her injury was sustained not at the scene of the
accident but at the hospital some time later. How would a
judge adjudicate this case on the law as integrity view? For
Dworkin:
law as integrity asks a judge... to think of
himself as an author in the chain of [law]...
He knows that other judges have decided cases
that, although not exactly like his case,
deal with related problems; he must think of
their decisions as part of a long story he
must interpret and then continue, according
to his own judgment... [His decision] must be
drawn from an interpretation that both fits
and justifies what has gone be fore.200
The judge's interpretation must, first, explain how the line
of precedents cited in McLoughlin has evolved and what under
lying principle regarding liability for emotional injury they
embody. Second, her interpretation must show how the line of

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151

precedent implies a coherent justification. If the judge


finds such an interpretation, it will indicate the direction
in which she should extend the line of precedent and, more
important, w h y .
Why does the law recognize legal rights to compensation
for emotional injury? This is the judge's initial interpre
tive question and she tries to answer it by first listing
some possible candidates for the best interpretation of the
cited precedents:
(1)

No one has a moral right to compensation


except for physical injury.

(2)

People have a right to compensation for


emotional injury suffered at the scene of
an accident against anyone whose careless
ness caused the accident but have no right
to emotional injury suffered later.

(3)

People should recover compensation for emo


tional injury when a practice of requiring
compensation in their circumstances would
diminish the overall costs of accidents or
otherwise make society richer in the long
run.

(4)

People have a moral right to


for any injury, emotional or
is the direct consequence of
duct, no matter how unlikely
able it is that that conduct
in that injury.

(5)

People have a moral right to compensation


for emotional or physical injury that
results from careless conduct, but only if
that injury was reasonably foreseeable by
the person who acted carelessly.

(6)

People have a moral right to compensation


for reasonably foreseeable injury but not
in circumstances when recognizing such a
right would impose massive and destructive

compensation
physical, that
careless con
or unforesee
would result

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152

burdens on people who have been careless


out or proportion to their moral fault.201
It should be noted that each of these interpretations is
different in important, ways. For example, a judge who held
(1) or (2) would deny Mrs McLoughlin's claim, while a judge
holding (4) clearly would rule in her favor. Moreover, these
six interpretations are mutually incompatible. Only one can
figure in the best overall interpretation of the precedent
cases involving emotional injury.
Which interpretation best explains and justifies the de
cisions of the judges in the precedent cases?

(1) is obvi

ously ruled out. If judges in past cases held that people


never have legal rights to compensation for emotional injury
they would hardly have decided to recognize such rights.
is also ruled out, though for a different reason.

(2)

(2) does

fit the line of precedent, which clearly has not granted com
pensation for emotional injuries sustained away from the
accident scene. But the distinction

(2) draws between types

of emotional injury is arbitrary; it invokes no underlying


moral or political considerations as a justification. Recall
that the best interpretation, on the law as integrity view,
is one that both fits and justifies precedent.
Interpretation (3) invokes explicit economic considera
tions. On this interpretation, legal rights to compensation
for emotional injury are to be allocated on the basis of
overall social cost. In short, it urges that courts recognize

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153

such rights on policy grounds. Is this a plausible interpre


tation?
First, it is unlikely that past precedent recognizing
rights to compensation for emotional injury would help to
diminish the social costs of accidents, as (3) requires. By
extending the negligence standard of "due care" to include
emotional injury, the precedent rulings actually drive up the
costs

(e.g., insurance rates, legal settlements) associated

with accidents. So (3) does not fit the past decisions very
w ell.
Even more important is the fact that (3) appeals to social
policy grounds for determining whether a legal right to com
pensation should be recognized in cases of emotional injury.
On the law as integrity model, the judge assumes as part of
her interpretive stance that law embodies a coherent set of
background principles - e.g.,

justice, equality,

fairness -

that reflect the community's convictions about political


morality. Moreover,

law as integrity

asks [a judge] to enforce these [principles]


in the fresh cases that come before him, so
that each person's situation is fair and just
[and equal] according to the same stan
dards .202
Courts, unlike other legal institutions like legislatures,
are required to act on grounds of principle not policy. Only
by so doing can courts maintain the internal consistency and
moral coherence of the law. Hence, the judge in McLoughlin

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154

must dismiss interpretation (3) because it appeals inappro


priately to policy grounds.
Three interpretations remain.

(4),

(5) and (6) each

include a moral claim on behalf of the rights they recognize.


Each requires the judge to expand the range of her interpre
tation. That is, the judge must ask whether the moral claims
they invoke are compatible with similar claims invoked in
other areas of legal practice.
For example, the judge would consult negligence prece
dent in general in hopes of finding claims compatible with
the broad, unrestricted right to compensation for injury
stated in (4). In fact, the bulk of negligence precedents do
not recognize so unrestricted a right, but impose the condi
tion that injuries must have been reasonably foreseeable
before compensation is awarded.203
Eliminating (4) leaves

(5) and (6), both of which

include the foreseeability condition. The main difference


between them is that
pensation, while

(5) imposes no limits on rights to com

(6) prohibits recognizing any right to com

pensation for injury that would impose destructive financial


burdens on those who are ordered to pay. Since both
(6)

(5) and

fit the precedents regarding emotional injury and acci

dental damage (negligence) in general, how can the judge


choose between them?
The judge's interpretation at this stage no longer
involves merely fitting with the past legal record. In decid
ing between interpretations

(5) and (6), the judge must also

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155

"decide which interpretation shows the legal record to be the


best it can be from the standpoint of substantive political
morality."204
This poses a complex problem for the judge. Her choice
between (5) and (6) must answer two questions. First, which
interpretation best embodies the moral convictions that are
widespread in the community? These convictions are as spe
cific as views regarding moral responsibility for negligent
damage and as general as beliefs about justice and fairness
in general. Second, which of the two interpretations is more
justifiable from the point of view of morality as such? This
second questions involves the judge's own views about
justice, fairness and equality as well.
It should be noted in passing here that there is no rea
son to expect the judge's personal convictions of political
morality to coincide with his community's in every case. Nor
can we assume that the community's political morality is
itself wholly defensible in the abstract. But these are
issues that will be explored more fully in chapter 5.
In deciding whether (5) or (6) best interprets past
precedents regarding emotional injury, the judge determines
what moral commitments the community has made, through its
legal practice, to substantive principles of justice,

fair

ness and equality as they apply in this restricted context.


The judge, using her own convictions about these principles
as guides, constructs a coherent picture of past emotional

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injury cases by showing how these cases express the commu


nity's sense of justice, fairness and equality.
But the judge cannot simply project her own convictions
onto the body of past precedent, interpreting them wholly in
light of her personal principles of justice and the like. To
do so would violate integrity's demand that current decisions
(and interpretations) must accurately reflect the actual
legal record and the actual underlying values that prevail in
the community.
The judge supposes that the community
has adopted and is enforcing the principle of
foreseeability as its test of moral respon
sibility for damage caused by negligence,
that the various decisions it has reached [in
its legal practice] are intended to give
effect to that principle.205
Given the prevailing moral convictions of her community
regarding procedural fairness and equality of treatment,
issues of financial burden and social cost should not affect
legal recognition of rights to compensation for damage and
injury. So interpretation (6) is ruled out. This must be the
judge's decision, even if her personal convictions indicate
that it would be unjust to require compensation that was mas
sively burdensome. The judge's obligation here is to inter
pret past precedent in a way that is (a) faithful to the
actual legal data, and (b) portrays the data as being as
coherent in principle as possible.
Moreover, the judge's choice of (5) also indicates the
direction of her decision in the dispute between Mrs.

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157

McLoughlin and Mr. O'Brian. Recall that in a lower court, the


plaintiff had successfully argued that past precedent regard
ing emotional injury entitled her to compensation from Mr.
O'Brian. But the lower court chose not to enforce Mrs.
McLoughlin's right, ruling that to grant compensation for her
type of emotional injury would invite court-clogging nuisance
suits alleging similar kinds of injury.
On the law as integrity model, it is the underlying
principle of emotional injury that must dictate the decision
in this case. If the community's legal practice embodies a
principle according to which people are entitled to be com
pensated fully whenever they are injured by others' careless
ness, then the law's practitioners are obliged to acknowledge
and act upon it. To do otherwise damages the internal consis
tency of the law by introducing conflicting decisions into
the legal record. It also damages the law's moral coherence
by violating the background values of fairness and equality
that justify law.
So in the House of Lords was constrained by its interest
in consistency to order a new trial. For the lower court, in
recognizing that past precedent authorized Mrs. McLoughlin to
recover compensation, cannot consistently refuse to recognize
and enforce her right. For law as integrity, the justifica
tion for the entire system of law hinges on maintaining this
consistency. And in this we find the source for the judge's
internal obligation to adjudicate in light of constraints im
posed by consistency. By striving to preserve law's internal

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158

consistency,

judges also work to keep law in line with its

justifying point.
In a broader sense,
Integrity demands that the public standards
of the community be both made and seen, so
far as this is possible, to express a single
coherent scheme... An institution [such as
law] that accepts this ideal will sometimes,
for that reason, depart from a narrow line of
precedents in search of fidelity to princi
ples conceived as more fundamental to the
scheme as a whole.206
The interpretive requirements of integrity - moral and
internal coherence - may require that judges recognize some
past decisions as ill-founded and erroneous and take steps to
repair them. Also,

judges may find it necessary to extend

lines of precedent in the directions indicated by the deeper


justificatory principles underlying the law.207 In so doing,
they also clarify, for legal practice as well as for the com
munity at large,

just where the "chain of law" leads.208

But in either case judges are still performing what Hart


called the "standard judicial function." That is, they are
still impartially applying existing law. But their conception
of law as integrity has enabled them to see that applying law
requires sensitivity to the justifying purpose that the law
is intended to serve. This purpose, in turn, can be used to
show what a coherent system of law requires in specific
cases.
Dworkin's continual appeal to a justifying purpose of
the law as a whole touches on the question of justification

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159

in general. As Dworkin has been interpreted here, his


approach to the question of justification is by means of the
notion of political morality. For Dworkin,

"political moral

ity" refers to the basic moral convictions of a community re


garding the most desirable arrangement of its political life
and institutions.209 Since legal practice is best viewed
within the wider context of political life, its justification
is a feature of the wider justification of political arrange
ments in general.
Political morality differs from what Dworkin calls
"popular morality." Political morality, as Dworkin envisages
it, is a set of highly abstract propositions expressing the
political values of the community. The most basic (and most
abstract) of these is the claim that legal practice and
political life in general ought to secure equal concern and
respect for all persons.
Popular morality is both more concrete and more mal
leable than political morality because it encompasses the
prevailing opinions regarding personal virtue and specific
moral issues "that are held as a matter of personal convic
tion by members of the community."210
Dworkin"s distinction between popular and political
morality enables him to recast the question, In what way are
law and morality connected?
As we have seen, Dworkin holds that there must be a
moral image of the law implicit in any justifiable system of
legal practice. This moral image incorporates the political

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160

morality of the community as the ultimate justification for


law.211 However, because the principles incorporated are so
abstract, they provide no detailed, pre-interpretive indica
tions of the extent to which the law should incorporate
aspects of popular morality.
However, law as integrity does provide a highly general
standard relevant to this issue. Legal practice should incor
porate no features of popular morality that would risk com
promising the consistency of laws most fundamental point:
securing equal concern and respect for all individuals.

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161

Chapter Five:
A Critical Appraisal

In the preface to this study two general theses were


proposed as guides for the interpretation of Dworkin's legal
theory. The first was that Dworkin's theory in both its ear
lier and later versions presents a unified conception of what
law is. The second was that Dworkin's theory is a significant
contribution to the philosophy of law because it represents a
new alternative in legal theory, one that occupies a middle
ground between the traditional theoretical options of legal
positivism and natural law.
As the preceding chapters have shown, both the unity and
significance of Dworkin's theory rest on his use of interpre
tation as the pivotal concept for understanding law.
Interpretation,

first of all, is the connecting link

between the adjudication - based conception of law presented


in Taking Rights Seriously and the comprehensive theory of
law as interpretation found in Law's Empire. In the former
case, Dworkin explained adjudication as an exercise in inter
pretive reasoning. In reaching a decision in a particular
case, a judge must refer to the background principles implied
as justification for the existing law that is relevant to the
case. This requires that the judge interpret the particular
case in light of these general, justifying principles and
decide the case in a way that preserves the consistency of
the law with its background justification.212

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162

Above all, Dworkin's interpretive conception of adjudi


cation revealed that law has an internal structure more com
plex than that of the simple regime of rules suggested by
positivism. Each particular region of the law - the rules and
precedents that comprise the law of contracts,

for example -

reflects a scheme of background principles that both ratio


nalizes and justifies it.213 These intermediate principles
are, in turn, supported by a scheme of more general back
ground principles that rationalize and justify the whole of
law.
These layers of successively more inclusive schemes of
principles culminate in the most basic justificatory princi
ple of law, which Dworkin calls the principle of equal con
cern and respect. For Dworkin, only the exercise of interpre
tive adjudication with a view toward preserving the internal
consistency of law reveals the actual structure of the legal
system - that of a complex scheme of explicit rules and im
plicit,

justifying principles.

In Law's Empire, interpretation provides the deeper the


ory of law that justifies Dworkin's vision of the actual
structure of the legal system. In Dworkin's view, the only
way to accurately portray the institutions and activities of
legal practice is to assume toward this practice the inter
nal, participant's attitude. Participants accept legal prac
tice as a coherent,

justified enterprise because it pursues a

set of goals or purposes that are deemed valuable in them-

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163

selves and that provide a unifying point or ground for the


varied elements that make up legal practice.
Moreover, participants, because of their commitment to
the value of legal practice, characteristically strive to
preserve the coherence and justifiability of the system. As
participants, they may perform one of several functions in
legal practice: a judge adjudicating a dispute, a lawyer
arguing his client's case, a legislator debating a legisla
tive proposal. Each of these activities shares a common fea
ture . Each is an attempt to invoke the justifying point or
ground of law on behalf of a particular decision or piece of
legislation. Further, each tries to show that the decision or
legislation in question is required by the ground of law as
the best way in the circumstances to preserve law's consis-

tency with its existing rules and principles, its institu


tional history and its background justification.214
For Dworkin, each of these activities is an exercise in
interpretation. Further, as interpretation each strives to
preserve the integrity of legal practice. That is, each aims
not only at a specific goal such as the recognition of a par
ticular individual right (e.g., Mrs. McLoughlin's right to
recover compensation for emotional injury). In addition, they
aim at showing that the scheme of rules and principles that
comprises legal practice is more coherent and more consistent
with its justification if it includes the particular decision
or legislation in question.215 This concern for maintaining
the principled integrity of law better explains,

in Dworkin's

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164

view, the content and activities in our actual legal prac


tice.
However, the significance of Dworkin's theory of law as
interpretive lies in his claim that content and value are
fundamentally linked in law. Consequently, theories of law
must treat normative issues of justification together with
conceptual issues of description. Again,

it

is on the concept

of interpretation that Dworkin relies for this claim.


Interpretation is the best account of some of the funda
mental activities of legal practice - argument, adjudication,
legislation - because it best reflects the basic purpose of
law. In an abstract sense, law is the means by which a commu
nity interprets its own basic convictions about the most
desirable ways of arranging and regulating its political life
and translates these convictions into a coherent set of
institutions and practices.216
More concretely, each community's legal practice
reflects substantive commitments to specific moral and polit
ical values. These values represent the deepest justifica
tions for the actual rules, practices and institutions of the
community's legal system. These basic values also aid in
explaining the content of legal practice,

since a community's

specific convictions about political morality dictate what


sorts of rules, practices and institutions it will accept as
parts of its legal system.
Dworkin's frequent references to American legal practice
provide a case in point

(so to speak). In American law, the

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165

broad political value of equality for all citizens is insti


tutionally reflected in a multitude of ways: the right to
just compensation when an individuals property is seized for
public use, an individual's right to racially-blind access to
public education facilities, the right of indigent defendants
to obtain legal counsel at the state's expense.217
Each of these institutional rights reflects the broader,
background right of equal concern and respect. Moreover, the
existence of these rights in current legal practice repre
sents a concrete interpretation by that legal practice of the
best way to implement the political value of equality in nar
row, particular circumstances.
Values such as equality are the sources of the specific
legal rights recognized in legal practice. So legal rights
emerge from the community's commitment to specific political
values. But the legal validity of these rights nevertheless,
also depends upon their having obtained institutional recog
nition, explicitly or implicitly, in the past political deci
sions that ground and structure legal practice.218
American legal practice provides a paradigm example of a
past political decision that, while it grounds subsequent
legal practice,

requires continual interpretation in the

light of changing circumstances. This, of course, is the Con


stitution. Viewed as "an integrated structure of moral and
political principles,"219 the Constitution provides the funda
mental framework for the community's political life. But this
framework and the principles of political morality it implies

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166

as justification are abstract and general. It requires inter


pretation, and specifically an interpretation which both
enables the Constitution to be applied in specific circum
stances and to be applied in ways that preserve its
"integrated structure," i.e., its integrity.220
These examples from American legal practice indicate the
novelty of Dworkin's approach to legal theory. By viewing law
as interpretation, Dworkin is able to show that a community's
legal practice is an on-going critical narrative of its
political morality. Legal practice is responsible for inter
preting political morality and adapting it to the different
demands that changing circumstances force upon it. Moreover,
interpretation is guided by the need to preserve the
integrity of the practice. That is to say, interpretation
strives to integrate past legal decisions, existing rules and
principles and the background justification for these into a
coherent whole.
On this view, then, what is the law of a community? For
Dworkin, our perspective on law must simultaneously take in
what lies in the foreground as well as what lies in the back
ground. In the foreground, we find the explicit enactments of
the legal system - statutes, precedent holdings, the Consti
tution. In the background, we find the principles of politi
cal morality presupposed by these enactments as justification
- principles of fairness, justice and equality. Law is both
the foreground and the background, viewed as a coherent,
integrated whole.221

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167

This metaphor also provides a way of measuring Dworkin's


distance from the two dominant traditions in legal philoso
phy, positivism and natural law. Positivism concentrates on
the foreground, identifying as law only those rules that have
the proper authoritative origin in past decisions. Natural
law, on the other hand, concentrates on the background. Its
claim that "... moral validity is a logically necessary con
dition for legal validity" effectively substitutes moral
rules and principles for those of law.222
The two guiding theses discussed above indicate the piv
otal role interpretation plays in Dworkin's theory of law.
But interpretation also imposes serious limitations on his
theory.
The remainder of this chapter will focus on these limi
tations, viewing them as consequences of Dworkin's interpre
tive approach to law. Specifically, three claims are urged
against Dworkin, each of which shows that his theory has
serious problems.
(a) The interpretive method, particularly the form of inter
pretation used by Dworkin, is fundamentally context-de
pendent, and, thus, does not provide a widely applicable
theory of law.
(b) Law does not have the degree of internal coherence re
quired by Dworkin's interpretive conception of law as
integrity.
(c) Law's inherent dependence on a community's political
morality - an essential component of Dworkin's theory -

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168

makes the critical evaluation of legal systems difficult,


if not impossible, since legal practices would then be
self-contained, incommensurable systems on his theory.

1. Interpretation and "Legal Practice

As chapter 1 indicated, traditional theories of law aim


to articulate the fundamental nature of law and analyze basic
legal concepts like validity, law and obligation. Such theo
ries usually include definitions of basic legal terms and
criteria for their application. The presumption in tradi
tional theories of law is that they can be used to identify
and describe legal phenomena as they appear in any commu
nity's system of law.223
Dworkin's is not a traditional theory of law. His aim is
not to define the notion of law in the abstract, conceptual
sense of traditional theories. Rather, he is concerned with
understanding how law functions as the focal point for a com
plex web of institutions and activities which he designates
as "legal practice." As Dworkin describes it, legal practice
is a cultural phenomenon, a feature of a particular commu
nity's way of organizing and regulating its political life
and activities. As such, the actual content of legal practice
is equally specific to the community whose practice it is.224
Moreover, legal practice embodies particular moral and
political values because it is these values that shape and
determine the activities and institutions that count as legal

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169

for a particular community. In this sense, a community's val


ues and principles of political morality - i.e., the deepest
justifications for its form of political life - are partly
constitutive of its legal practice.
For example, if a community holds fairness to be a basic
principle of political morality, its legal practice will most
likely reflect this principle at all levels. Suppose, what
seems to be the case, that fairness, as a principle, is the
principle that all persons deserve impartial treatment by the
institutions and procedures of the legal system.225 In Ameri
can legal practice, the 5th Amendment to the Constitution
contains the clause that no individual shall "... be deprived
of life, liberty or property without due process of law."
This clause, from Dworkin's point of view, embodies the
underlying principle of fairness because fairness,

(in the

sense specified above) best justifies the inclusion of this


clause in the basic law of American legal practice. Further,
given its justificatory role, the principle of fairness also
helps clarify the meaning of the due process clause. For due
process must mean, in light of its connection with fairness,
the fair application of legal procedures which are themselves
fair.226
In contrast to the notion of law, the more inclusive
notion of legal practice involves issues of both description
and evaluation, explanation and justification. Value and con
tent commingle in legal practice to the extent that they de
termine each other. That is to say, a community's scheme of

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170

background moral and political values specifies what sorts of


rules, institutions and procedures legal practice must con
tain insofar as it is to be internally consistent and morally
justifiable. Conversely, by viewing the individual rules and
procedures of law from a justificatory standpoint, one can
develop a scheme of the justifying principles of political
morality that are implied by (and thus fit) the content of
existing legal practice. Indeed, legal practice is the means
by which communities fashion their basic value commitments
into a set of practical institutions for governing their
political and social lives.
What consequences do these observations about legal
practice have for the theorist of law? Consider legal posi
tivism, an example of the traditional sort of theory dis
cussed above. For positivism, theorizing is a dual task. It
first provides an analysis of the basic conceptual apparatus
of law that is both independent of context and normatively
neutral. It is context-independent in the sense that it seeks
to identify the common conceptual features that must be pre
sent in any legal system. It is normatively neutral in that
it presupposes no evaluative stance toward the conceptual
elements of legal systems. The second task of a positivist
theory is to evaluate the content of particular legal systems
from the standpoint of a normative theory regarding the ends
and purposes law ought to serve. The evaluative task, of
course, requires clarity about what counts as a law in the

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171

first place. But the two tasks can be, and are, carried out
independently.
But such a theory would be inadequate for theorizing
about legal practice. In a legal practice, content and justi
fication commingle. Understanding a legal practice means
understanding the point or purpose of that practice as a
whole. And the point of a legal practice is internal to the
practice in the following way: it is the abstract scheme of
values and principles the community strives to express in its
system of laws. So the point of legal practice is the refer
ence point for determining what counts as legal in a given
community. Only those rules, principles and institutions that
incorporate and promote the internal point of law are granted
recognition by a community's legal practice.
Dworkin's idea, in short, is that the internal,

justify

ing point of a legal practice can only be captured by an


interpretation situated within that practice. In other words,
the theorist, no less than the practitioner of law, must
adopt the internal standpoint on a legal practice. This
standpoint is constituted by the community's actual political
and moral commitments and by its background beliefs about the
value of legal practice as an instrument for promoting the
values inherent in these commitments. Only from this vantage
point can a legal theorist hope to accurately describe and
understand a community's legal practice. The conception of
law that emerges from this standpoint reflects its context
dependence: legal practice is the on-going interpretation of

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172

the community's political morality and the application of it


in the actual rules and procedures of the law.227
There are several important assumptions buried in
Dworkin's argument. Examining them more closely will reveal
some of the limitations inherent in Dworkin's interpretive
approach to law.
First, it is useful to notice that Dworkin's contention
about the context-dependence of interpretation is a variation
on a strain of argument, both in philosophy and in social
theory, about the unavoidable context-dependence of under
standing in general. One of the best known proponents of this
view is Peter Winch. "'Understanding," Winch says,

... "is

grasping the point or meaning of what is being done or


said."228 Understanding, on this view, requires grasping the
internal elements that constitute the context within which an
action or practice takes place. The most important of these
internal, constitutive elements is the overall point or aim
of the practice in question.
As the discussion of courtesy in chapter 4 showed, the
key to understanding courtesy, to viewing it as something
more than a mere collection of habitual,
behavior,

ritualistic forms of

is grasping its underlying point. Activities as

diverse as tipping one's hat or employing formal modes of


address such as "Mister" are meaningful insofar as they
express an underlying point, that of showing respect. Under
standing this point requires supplying the context, which in
turn requires assuming the interpretive stance of the insider

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173

or participant. On this view of understanding a social prac


tice, a kind of sympathetic empathy is demanded of the inter
preter if she is to grasp correctly the underlying point of
the practice as the practitioners themselves see it.229
In Dworkin's version of this approach, understanding
legal practice means first discovering the justifying point
that gives legal practice its unity and coherence. One's
interpretive conception of this point is judged or tested by
reference to two dimensions: fit and political morality. In
the former case, a conception of the justifying point of law
is "... a better justification than another if, roughly
speaking,

someone who held that

[conception] would, in its

service, enact more of [the settled law] than would someone


who held the other."230 On the latter dimension, a conception
of the justifying point of law is preferable if it reflects
the background political morality of the community more accu
rately than any other.
These dimensions function as rough standards for judging
prospective interpretations of legal practice. As standards,
they are fundamentally context dependent. To a great extent,
the content of these standards is derived from the content of
the practice being interpreted. So what is measured by the
dimensions of fit and political morality is the degree to
which a conception of the justifying point of law has cap
tured and integrated the details of content and justification
that exist in an actual system of legal practice.

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174

Consider Dworkin's own conception of the justifying


ground or point of legal practice. On this conception, the
law is the community's scheme of rights and responsibilities
that license or prohibit the use of public coercion. These
rights and responsibilities are arranged in a scheme of enti
tlements and duties allocated to individuals. This is based
on two reasons. First, such an arrangement better reflects
the body of past political decisions that establish and
authorize legal practice - and justify the use or constraint
of public coercion. Second, this arrangement best embodies
the justifying values and principles implicit in past ex
plicit political decisions, notably the value of equality and
the principle of equal concern and respect for all citizens.
Dworkin claims that this conception "fits" legal prac
tice in two ways. First, it accurately describes the struc
ture of law as a complex scheme of particular rules granting
individual rights and responsibilities together with their
justifying background principles. This conception also yields
a more plausible portrayal of the activities of participants
in legal practice. Since law is best seen as a coherent
scheme of rules and principles, practitioners of law (whether
they are adjudicators, legislators or enforcement personnel)
perform their functions in ways that both remain faithful to
the settled law and seek to preserve its internal coherence
or integrity.
This conception also satisfies the dimension of politi
cal morality. The background values of equality and equal

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175

concern, along with the intermediate principles of fairness


and due process, constitute the most coherent justificatory
scheme that can be constructed from the existing settled law.
Moreover, these values and principles better reflect the pre
vailing political morality of the community.
But which community's legal practice does Dworkin's con
ception fit? It is tempting to say that he intends only to
interpret Anglo-American legal practice. The legal data he
refers to

(e.g., cases, statutes and constitutional provi

sions) are derived from both English and American legal prac
tices. Moreover, English and American legal practice reflect,
both in their background moralities and in the actual content
of their law,clear commitments to principles of equality and
equal treatment.
These considerations illustrate the most serious limita
tion of Dworkin's interpretive approach to law. Because in
terpretation requires assuming a value-laden standpoint
within a given community's legal system, the most it can ever
produce is a theory of a particular legal practice, not a
theory of legal practice as such. The sort of legal theory
Dworkin champions can be used by participants for articulat
ing the meaning of their own legal practice. But it would be
applicable to the legal practices of other communities only
if those communities shared the same scheme of background
values and legal institutions.
It is easy to imagine systems of legal practice in which
the principal features of Dworkin's conception of law are not

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present. Totalitarian political systems or communities which


practice systematic inegalitarianism (e.g., South Africa)
would have markedly different forms of legal practice and di
vergent background convictions of political morality. Values
such as state supremacy and institutions that authorized mas
sive use of public coercion would most likely characterize
such systems.
Consider the South African constitution, which incorpo
rates two uniquely South African general principles,
apartheid and baasskap.231 The former signifies the systematic
separation of racial groups and the provision of separate
means for their parallel political, social and economic de
velopment. Baasskap literally means "mastery." As a constitu
tional principle,
political,

it represents the conviction that ultimate

social and economic control should reside in the

white or European race.


These two principles are woven throughout South African
legal practice, though they are most evident as background
principles underpinning the laws that regulate non-whites.
For instance, South African law restricts non-whites to sepa
rate residential districts, usually located nearby or adjoin
ing white districts. The law also grants to local units of
government in white districts

(e.g., town councils) the power

to issue "passes to non-white individuals, allowing them to


travel in white districts for work or other legitimate pur
poses. Without passes, non-whites are subject to summary
arrest if found by police in restricted white districts.

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177

These features of South African law clearly reflect the


underlying principles of apartheid and baasskap. As princi
ples of South African political morality, they embody a basic
conviction of South African society: a community organized in
accord with racial separation and white dominance is best and
most beneficial for South Africa.
On Dworkin's conception of law as interpretation a the
ory of South African law would have to incorporate the con
stitutional principles of apartheid and baasskap, as well as
the basic political conviction they reflect. Otherwise, the
theory would fail to "fit" the actual details of South
African legal practice.
Moreover,

a prospective interpretation of South African

legal practice must also satisfy what Dworkin calls the


dimension of political morality. That is to say, the inter
pretation must show how principles such as apartheid underpin
and justify specific parts of the South African legal record
like the "pass law" mentioned above. One can imagine

(though

not without difficulty) a South African judge or legislator


attempting to make a moral case for the pass law and for
apartheid itself. But it seems impossible that, lacking any
prior commitment to such principles, one would find such a
moral argument convincing.
A political morality like South Africa's, and the form
of legal practice it authorizes and justifies may be deemed
repugnant or offensive. Indeed, given Dworkin's endorsement
of equality as a principle of political morality, he would

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178

likely be one of South Africa's greatest critics. But..this


sort of criticism of it requires assuming a non-interpretive,
context-independent perspective. It requires that we view
this legal practice not from within but from the point of
view of political morality as such. On the traditional view,
it demands judgments of normative jurisprudence and normative
political and moral theory. This is vastly different from the
role played by political morality in fashioning an internal,
interpretive understanding of a community's actual legal
practice.
These issues will re-emerge in the following two sec
tions of this chapter. At this point it suffices to mention
them as illustrations of the limited applicability of
Dworkin's approach.

2. Interpretation and Coherence

As chapter 3 indicated,

interpretation in general is

regulated by the internal ideal of coherence. Interpretation


aims at viewing the interpreted item as a coherent, unified
whole. This is accomplished by identifying some underlying
point that integrates and harmonizes the various elements of
the item being interpreted. So, for instance, in interpreting
a novel one seeks a dominant theme the work is intended to
express and by virtue of which the plot, the subplots and the
various lines of character development are organized into a
coherent work. There may be apparent conflicts. Two plot

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179

lines, for example, may seem to lead to contradictory conclu


sions. Nevertheless, the novel's interpreter must assume that
there is a deeper, harmonizing theme that makes for an over
all coherence.
Dworkin's interpretive theory of law rests on a similar
assumption about the structure of law. For Dworkin, the body
of the settled law must express some consistent set of justi
fying background principles that can be developed by con
structive interpretation. Otherwise, constructive interpreta
tion would yield only inconsistent results. Moreover, these
principles themselves must form a coherent scheme harmonized
ultimately by the dominant background value of equality. In
Taking Rights Seriously. Dworkin assumes that the law's back
ground principles are internally coherent and proposes a
mythical super adjudicator, Hercules, to show how adjudica
tive interpretation would exploit this internal coherence in
settling hard cases. In Law's Empire. Dworkin provides his
conception of the source for law's internal coherence - the
justifying point of legal practice as a whole. In addition,
given that law is an integrated scheme of rules, principles
and justifying values,

legal practitioners must try to pre

serve this integrity.


Two questions arise here. First, what sort of coherence
must law have for Dworkin's interpretive project to succeed?
Second, is Dworkin correct in assuming that law has such co
herence?

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180

In answer to the first question, recall the two forms of


coherence identified in chapter 4. Internal coherence re
quires that the law, viewed as a scheme of rights and respon
sibilities, should include no internally contradictory ele
ments. Moreover, the rules and principles that constitute the
scheme of law must comprise an integrated whole. That is, it
must be largely free from internal conflicts among its rules
and principles. Also, whatever conflicts exist must be
resolvable by reference to some higher order principle that
harmonizes the seemingly

conflicting elements.

Moral coherence is simply the requirement that the con


tent of legal practice be consistent with the background
principles of political morality that justify it. For the
present, we will focus on internal coherence. Moral coherence
will play a role in the arguments of section 3 of this chap
ter.
Since Dworkin's interpretive conception of law presup
poses a strong degree of internal coherence in the law, one
question immediately arises. How can Dworkin account for this
coherence? This is especially important when we consider
areas of law such as contracts and torts. In these areas, the
bulk of the legal record is case law. The rules and doctrines
of contract and tort law have been developed gradually, by
means of the cumulative decisions of many courts dealing with
many individual cases. Given that many divergent parties and
interests have been involved in the development of the legal
record, is it plausible to assume that the record is inter

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181

nally coherent to the degree required by Dworkin's notion of


constructive interpretation?
The assumption of internal coherence is plausible only
on a further, causal assumption about the way law develops.
Specifically, the elements of
contracts comprise

any given

a coherent scheme of

area of law suchas


rules and principles

because they have been developed in accordance with a broad


consensus within legal practice about the background
principles that justify that area of law. Judges deciding
cases in this area

of law are guided by

the background

principles of this

consensus, as well as by the actual

materials in the legal record. Further, given their interest


in maintaining the integrity of this area of law, judges will
(through their decisions) expand and add to the legal record
only in ways that are consistent with these consensual,
background principles.
This process is clearly evident in the development of
constitutional law. In American legal practice,

for example,

the "consensus" is explicit. The background principles that


underpin and justify the practices and institutions of Ameri
can political life are stated, either explicitly or implic
itly, in the Constitution. Constitutional law develops in a
coherent way because there is a formal consensus

(the Consti

tution itself) about the principles that should guide and


govern judicial decisionmaking.
But is there a similar consensus underlying and guiding
development in areas of the law such as contracts? Fried

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182

believes there is and he tries to show the features of this


consensus by interpretively reconstructing contract law based
on the justifying moral principles it embodies.232
For Fried, contract is a legal version of the moral
institution of promising. Specifically, contract embodies
what Fried calls certain essential principles of liberal
political morality. These include the traditional liberal
doctrine that individuals are morally autonomous and possess
rights, among these the right to freely undertake promises
involving obligation and mutual trust.233 This latter right is
given explicit legal recognition in the institution of con
tract.
For Fried, the moral institution of promise is the
implicit model on which contract law has evolved and devel
oped. The background principles of contract law, on this
view, embody the conceptual elements of the moral institution
of promising. But Fried offers this as both a conceptual and
a causal account. For on occasion, courts have explicitly
referred to the moral background of promising in deciding
contract cases and, in so doing, deepening and expanding con
tract law.234
As evidence for this claim, Fried cites some of the
leading principles of contract law. We will briefly consider
two of these here.
Under the principle of duress, a contract requires vol
untary assent of both parties for it to be valid. Legal en
forcement is denied to contracts in which assent has been

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183

coerced because such coercion violates the autonomy of the


coerced party. A coerced contractor cannot freely consent to
an agreement.235
The principle of unconscionability has even more
explicit moral content. It
denies or limits enforcement of [a contract]
in the interest of fairness and decency, and
correct[s] harshness in contracts resulting
from unequal bargaining positions of the
parties.236
Contracts that are economically exploitative or otherwise
substantively unfair are not fully enforceable under this
principle. The reasons, again, lie in the moral background of
contract as based on promise. Unfair or exploitative agree
ments, even those entered freely, impose inherently injurious
obligations on the less advantaged contractor. Enforcing such
contracts would amount to granting legal sanction to economic
inequality and exploitation.237 This was essentially the
court's reasoning in Hennincrsen v. Bloomfield Motors. Inc..238
in which it refused to enforce a substantively unfair liabil
ity-limiting provision of a sales contract for an automobile.
Fried's point in all this is to show that contract law
has developed in an orderly and coherent fashion because it
has invoked, both implicitly and explicitly, the moral insti
tution of promising as a model. Contract law embodies princi
ples like duress and unconscionability because these princi
ples reflect the moral values

(e.g., respect for individual

autonomy, trust) basic to promising. Moreover, since this

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184

particular moral conception of promising is an essential part


of the background morality of the community, it provides a
background consensus for legal practice in interpreting and
developing the community's contract law.239
Fried's account of contract law embodies on a limited
scale the same kind of causal assumption implicit in
Dworkin's theory of law. Dworkin conceives of law as inter
pretation aimed at preserving overall integrity because law
does, in fact, have an integrated, coherent structure that
can be preserved. This is because law embodies a coherent
scheme of background principles of political morality that,
taken together,constitute the justification for law. If this
is so, it seems reasonable to assume that law did not simply
develop in a piecemeal way, fashioning ad hoc solutions to
isolated problems and disputes. Rather, it is more likely
that the various branches of law developed within a broad
consensus in legal practice about the background values and
principles that law ought to incorporate. Legal practice on
this account, embodies the broad principle of equal concern
and respect because there is a clear consensus, both within
legal practice and in the community at large, that equality
is a basic value that law ought to incorporate. This sort of
causal claim, similar to Fried's account of contract law,
seems a clear assumption of Dworkin's conception of law.
But suppose one adopts what Dworkin calls the "internal
skeptic's" point of view.240 One could take a skeptical
attitude toward Dworkin's assumption that legal practice

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185

embodies a single, coherent scheme of background principles.


If there is no underlying consensus about the principles of
political morality that law ought to incorporate, then one
would need to propose an alternative causal account of the
development of law. For example, legal practice could be
viewed as a reflection of the competition and compromise
among ideologies in the community's political life at large.
The political competition between the economic ideologies of
free, unconstrained markets and the regulation of economic
activity in the service of public or collective good provides
a good example. Political debate and public institutions re
flect an uneasy compromise between these two approaches to
economic activity, incorporating elements of both. Neither
ideology enjoys complete hegemony, which results in ideologi
cal fragmentation in public debate as well as in the politi
cal commitments of public institutions.
If law develops in a similar way, similar ideological
conflicts will be reflected in legal practice. Contract law
provides evidence that such conflicts do exist. For instance,
contract law includes principles stipulating that the law
will generally enforce any contractual agreement that does
not involve patent illegality or terms that are uncon
scionable. In broad terms, then, the law refrains from inter
fering in the freedom of contract. Yet federal law includes
the Wagner Act, which extends legal recognition to the prin
ciple of employee collective bargaining. Moreover, the Act
regulates in certain instances the negotiation of labor con

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186

tracts, requiring that employers acknowledge the powers of


duly recognized bargaining agents such as unions.
A pivotal example is National Labor Relations Board v.
Jones and Lauahlin Steel Corporation.241 in which the Supreme
Court affirmed the express regulation of the terms of labor
contracts. The defendant was found to have engaged in unfair
labor practices under the Wagner Act. Specifically, the cor
poration had been requiring its employees to pledge to avoid
union activity or membership as a condition of continued em
ployment. Such agreements, though ostensibly free and volun
tary, actually reflect the employer's power to manipulate and
pressure its less powerful employees.
The coexistence of these items in the data of contract
law reflect law's sensitivity to the ideological conflicts in
public political debate, particularly those regarding free
vs. regulated economic activity.
However, the fact that law can reflect such ideological
fragmentation is damaging to the notion of internal coherence
and, hence, to Dworkin's conception of interpretation.

For

the compromises required of legal practice in order for it to


incorporate elements of conflicting ideologies make the con
structive interpretation of law as a coherent expression of a
unified background morality highly implausible. Roberto Unger
states this view in the following passage:
... it would be strange if the results of a
coherent richly developed normative theory
were to coincide with a major portion of any
extended branch of law. The many conflicts of
interest and vision that law making involves,

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187

fought out by countless minds and wills work


ing at cross purposes, would have to be the
vehicle of an immanent moral rationality
whose message could be articulated by a sin
gle cohesive theory.242
On this view, each point at which ideologically inspired
legal data conflict is a point of indeterminacy in the law.
Moreover, each point of conflict is a potential hard case.
The law will suggest conflicting ways of resolving disputes,
reflecting its incorporation of conflicting ideological
views. The outcomes in such cases will ultimately depend upon
the ideological predilections of the adjudicator.
This suggests a re-interpretation of a hard case like
Hennincrsen. On Dworkin's reading of this case, the court re
fused to enforce the liability limiting provision of the con
tract between Henningsen and the manufacturer of his defec
tive automobile. The court cited considerations of fairness
and the economic disparity between the two parties. To permit
the manufacturer to avoid paying compensation for its defec
tive product would violate the moral principles that ground
and justify contract law in general.
But if contract law reflects the ideological fragmenta
tion of political life in general, the conflicting claims
brought to court in Henningsen can be interpreted as reflec
tions of an ideological split in contract law itself. The
manufacturer contends that, given the liability limiting pro
vision of a freely entered contract, it has no legal duty to
compensate the plaintiff. This claim reflects the free market
ideological stance, embodied in countless rules, principles

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188

and past decisions of contract law. Henningsen's claim that


the manufacturer unfairly exploits its more powerful economic
position by avoiding liability for defective products
reflects the collective regulation ideological stance.
The judge's decision for Henningsen is an affirmation of
collective regulation. It is an ideological choice, though
not a thoroughly unconstrained one. It is constrained in that
the ideological position that is chosen must already be rec
ognized in the existing legal data. In the case at hand, this
means that contract law must include rules and principles
(e.g., the principle of unconscionability that prohibits
grossly exploitative contractual agreements) that actually
reflect the ideological position in question. But given the
presence of this ideological stance and, further, given its
coexistence with other, conflicting ideological positions in
the same body of law, the adjudicating judge is free to
appeal to this ideological stance in her decision.243
On the internal skeptic's ideological interpretation

of

contract law, Henningsen reflects the dominance of the col


lective regulation view. But since, on this interpretation,
contract law is ideologically fragmented, the free market
ideology is equally represented. At times, it will dominate.
Consider Washington v. Courtesy Motor Sales. Inc.r244 in
which the plaintiff claimed that Courtesy had fraudulently
sold her a used car which had been represented as being new.
Since Courtesy is a duly authorized,

franchised dealer of

Ford automobiles, Washington included Ford Motor Company in

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189

the suit. Washington's claim was that the franchise contract


made Courtesy an agent of Ford's, thus exposing Ford to prin
cipal's liability for Courtesy's actions toward her.
The court decided against Washington, finding that no
agency relationship was created by the franchise contract
between Ford and Courtesy. Hence, Ford had no contractual
duty to control the actions of its franchisee, since no such
duty is expressly given in the franchise contract. The
court's restricted reading of the franchise contract repre
sents an equally restricted conception of the court's role in
interpreting and enforcing contracts: courts are limited to
enforcing only those explicit contract provisions actually
agreed to by the contracting parties. Respect for the freedom
and integrity of contracts prohibits any more expansive judi
cial role, even if considerations of public policy or collec
tive regulation might indicate otherwise.
Given the ideological conflicts within contract law,
many hard cases will be resolved only through an ideological
choice of the kind represented in Henningsen and Washington.
Such cases represent not the triumph of individual rights
painstakingly discovered by judicial interpretation but the
temporary dominance of an ideological position favored by a
sympathetic judge. This, of course, is a challenge as well to
Dworkin's restricted conception of judicial discretion.
The counter-explanation presented here is a skeptical,
alternative interpretation of law, one which finds competing
ideologies

(in this case, economic ones) operating in the

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190

background of the law and expressing themselves in the patch


work data of the legal record. This skeptical interpretation
does not defeat Dworkin's claims on behalf of law as
integrity. But it does show, at least, that Dworkin's inter
pretive project of constructing a coherent set of background
principles that both explain and justify legal practice has a
great many empirical obstacles to overcome.

3. Law and Political Morality

These remarks about the ideological impulses lurking in


law lead the discussion back to the question of political
morality. One of the genuine innovations of Dworkin's
interpretive approach to law is the strong connection he
forges between a community's legal practice and the
principles of political morality it expresses.
It is helpful, too, to recall his purpose in making this
connection. From the internal standpoint from which interpre
tation proceeds, it is vitally important that the community's
legal practice both is and is perceived as being justified
morally and politically. Law is, on Dworkin's conception, the
scheme of rights and responsibilities that license or con
strain public coercion. So it is understandably crucial that
the members of the political community subject to such coer
cion find its use justified.
Although this attitude exists throughout the community,
it is intensified in legal practitioners. For it is their

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191

responsibility to preserve the justifiability of law by main


taining the links between its content and political moral
ity.245
Dworkin's claims here rest upon an implicit conception
of what constitutes a community. For Dworkin, a community is
defined at least partly by a loose consensus regarding basic
questions of political morality. Such a consensus can be said
to exist when, among the members of the community, their con
sidered convictions regarding the most justified forms of
political organization converge in a set of basic principles
and values. These convictions reflect, in sum,

"... a general

attitude that members of a political community take toward


each other."246 The elements of this consensus will be
abstract and general, centering on values such as fairness,
justice and, especially, equality, the value Dworkin finds
most crucial to legal practice.
As section 2 of this chapter showed, the usefulness of
these basic convictions for legal interpretation depends upon
how comprehensively and coherently they are embodied in the
rules and institutions of the community's law. So there is a
double requirement of moral coherence involved here. The
scheme of background values must form a coherent, integrated
whole and the scheme must be expressed in the content of law
in an integrated, coherent way.
But even assuming that both conditions of moral coher
ence are met, it is not clear how much help these values can
lend to legal interpretation in particular cases.

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192

Consider the value of equality which, for Dwo rkin, spon


sors a background right of equal concern and respect, Obvi
ously this abstract right requires interpretation in light of
specific circumstances before it is applied. Indeed, legal
practice is designed for precisely this sort of interpreta
tion.
In Brown v. Board of Education.247 the relevant legal
data, which included the 14th Amendment's "equal protection"
clause, were interpreted as presupposing a right to equal
concern and respect as a background justification. Moreover,
the court concluded that the best expression of this back
ground right was a form of equal treatment which required
equality of access to public educational facilities.
However, the same jurisdiction (American legal practice)
includes decisions which are at odds with the right to equal
concern and respect. In Dronenbercr v. Zeck. a federal
district court upheld the

firing of the plaintiff because he

was known

to have engaged in homosexual behavior.248 Past

decisions

had interpreted equal concern and respect as

requiring

forms of equal treatment that are race-blind and

gender-blind. And yet the same background value is not


interpreted to mandate treatment that is blind to sexual
preference.
The issue in Dronenbercr points up a complexity that
Dworkin himself has noted. The abstract value, equality,
authorizes an abstract right to equal concern and respect.
However,

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193

there are two different rights that might be


comprehended by [this] abstract right. The
right to equal treatment, that is, to the
same distribution of goods or opportunities
as anyone else has or is given... The second
is the right to treatment as an equal. This
is the right to equal concern and respect in
the... decisions about how these goods and
opportunities are to be distributed.249
The distinction Dworkin draws here between these two
types of rights helps to illustrate the parallels between the
Brown and Dronenberg cases. For in both cases, the plaintiffs
alleged that their right to be treated as an equal had been
abridged. In other words, they had been subjected to dis
criminatory treatment in decisions allocating social goods
and opportunities

(e.g., access to public education, security

in employment). Moreover, the plaintiffs had been distin


guished for different treatment on the basis of certain prop
erties

(e.g., race, sexual orientation). Since these proper

ties or categories have not figured in similar allocative


decisions involving,

for example, white or heterosexual

citizens, the plaintiffs had not been accorded equal concern


and respect as citizens.250
The reason Dronenberg stands out as a disturbing incon
sistency is that it departs from a consistent theme in the
legal record regarding discrimination issues. From Brown in
1954, through later decades that witnessed the passage of
numerous anti-discrimination statutes, to Dronenberg in 1984,
American legal practice can plausibly be interpreted as show
ing the progressive prohibition of the use of discriminatory

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194

categories like race and gender in making decisions about the


distribution of social goods and opportunities. This has been
especially true when evidence showed that the use of these
categories rested on bias or prejudice. On this interpreta
tion, the legal record shows an on-going attempt to implement
the background right to treatment as an equal and, thereby,
to bring the law more clearly into line with its justifying
point: to secure equal concern and respect for all citizens.
Nevertheless, the court in Dronenberg failed to take up
this theme and, thus, chose not to prohibit the use of a
seemingly prejudicial category like sexual orientation in
employment decisions.
The problem illustrated here is with the notion of con
sensus, the source of the values used in legal interpreta
tion. The level at which a community achieves consensus about
political morality is so general that the elements of the
consensus - the abstract values and principles such as
equality - can provide little determinate guidance in par
ticular cases. At the level of individual cases like
Dronenberg. it is often unclear what specific decision would
best conform to a value as abstract as equality. Even if
equality is made more concrete by embodying it in an interme
diate principle, applicable to a narrowly defined range of
issues, the unclarity problem remains. For example, a court
could formulate a principle, based on past precedent and
existing statute, to the effect that, on grounds of equal
concern, discriminatory categories such as race and gender

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195

shall be prohibited from figuring in decisions about social


goods education, employment, housing, etc. But even with such
a principle to consult, the court would have no guidance
about whether sexual orientation is sufficiently similar to
these other discriminatory categories to merit inclusion in
this prohibition. Consulting equality in the abstract is even
less likely to provide such guidance.
So the problem for Dworkin's conception of interpreta
tion is that the scheme of background values that underpin
law in general can fit the existing legal data in a variety
of ways. For consensus on political morality to be coherent,
it must highly general. The values embodied in this consensus
will be correspondingly general. And this condition makes
them very hazy as guides for legal interpretation in specific
cases.
There are more serious questions we can ask about the
connection between legal practice and political morality. For
example, what consequences follow for legal practice when
there is little moral coherence in the community's political
morality or in the scheme of law that presupposes this
morality as justification?
South Africa provides a good contemporary example. At
least in its popular image South African law is vastly at
variance with any consistent scheme of moral and political
principles. On Dworkin's view, such a system of law would
lack the requisite justificatory connections with a coherent

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196

political morality. Does this mean that South Africa has no


legal practice?
Obviously, there are functioning legal institutions in
South Africa despite any dissent or uncertainty in the commu
nity about the best justification for these institutions. But
does the mere existence of these institutions settle the
question?
One way of arguing this question is to note how the two
traditional poles of legal theory, natural law and legal
positivism, would address it. For the natural lawyer, what
counts as legal must satisfy conditions of substantive
justice. Since South African law, with its institutionalized
system of racial separation and unequal treatment, fails to
meet this condition, it does not fully qualify as law.
For the positivist, what counts as law must originate in
procedures recognized as authoritative within a given legal
system. Consider the following statute, the Reservation of
Separate Amenities Act of 1953, which declares that
... it is unnecessary when a separate amenity
is provided for a particular class or race in
any public premises or vehicle, to provide
any or a substantially similar amenity for
any other class or race... it [is an] offense
for any person willfully to use an amenity
not allocated to the class to which he
belongs... Owners of hotels, theaters,
restaurants, and places of entertainment have
statutory powers to exclude persons on the
ground of race, colour or statutory class.251
For positivism, this act is valid South African law
because it has been enacted in accord with valid procedures

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197

by duly empowered legal institutions. But its content is


morally offensive, since it establishes a patently unjust and
unequal system of treatment for persons in public facilities.
Both the positivist and natural law approaches represent
external judgments made from outside the South African legal
system. They are based on criteria for identifying law that
are applicable across different local systems of law or legal
practices.
But for Dworkin, what counts as legal must be determined
by standards that are internal to a given legal practice.
Interpretation,

from within the practice itself, must aim at

constructing the most plausible account of the underlying


point of that law. It must explain how the Separate Amenities
Act and all the other elements of South African law incorpo
rate and promote some scheme of background values and princi
ples .
Moreover, whatever scheme of values and principles is
uncovered by such an interpretation must somehow justify the
law's systematic control of state coercion in South African
society. In short, interpretation must try to portray South
African legal practice in its best possible light.
An internal interpretation of South African law would
undoubtedly construct from the content of its law a scheme of
values expressed in that law. Conventional legal values like
public order would certainly be reflected. But woven through
out the rules, principles and institutions of its legal prac
tice would be a uniquely South African goal that the law is

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198

designed to pursue, the systematic separation of the races apartheid. Equally evident would be the systematic
inegalitarianism apartheid creates throughout South African
society.
Racial separation is undeniably an underlying purpose in
South African legal practice. But does racial separation
truly justify South African law? In other words, can it pro
vide morally compelling reasons for licensing or constraining
public coercion and for recognizing individual rights and
responsibilities?252
One reply is that plainly it cannot. Since mandatory
racial segregation is itself morally indefensible it can pro
vide no compelling reasons for exerting public coercion to
secure it. In the absence of such reasons, the legal practice
that pursues racial segregation and the rights and responsi
bilities it recognizes is fundamentally defective. It is
defective in the sense that, for Dworkin, South African legal
practice can yield "... no interpretation that can have, in
any acceptable political morality, any justifying power at
all.253
Such a legal practice would be, in Dworkin's view, law
in the "preinterpretive" sense only. It is a less sophisti
cated form of legal practices like that of the United States
that are fully justified by a coherent and detailed back
ground morality.254 Dworkin's claim here rests on his concep
tion of what constitutes the justifying power of an interpre
tation. Consider American legal practice again. Dworkin has

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199

interpreted American law as resting on a broad commitment to


the principle of equality. This principle provides the
underlying justification for the law's scheme of rights and
responsibilities. In turn, each of these rights and responsi
bilities marks a point at which the maintenance of equal
concern and respect requires either limiting or licensing the
exercise of public coercion. It is the justificatory connec
tion with equality that makes this a complete and powerful
interpretation of American legal practice.
But any interpretation of South African legal practice
will necessarily be incomplete, for Dworkin. It will lack a
feature "crucial to flourishing legal systems whose rules and
procedures do justify coercion."255 That feature is the con
nection of South African legal practice with an acceptable
political morality.
In South Africa's case, the principle of apartheid is
undeniably a constituent of the grounds of South African law.
The presence of this principle among the grounds of law means
that apartheid must figure in any plausible interpretation of
South African legal practice. Hence, any interpretation that
"fits" South African legal practice will necessarily portray
it as, in Dworkin's words, "morally infirm" in that it incor
porates legally sanctioned racial discrimination.256 This
infirmity becomes even more evident if we include in the
interpretation the other constitutional principle mentioned
in section 1, that of baasskap or white mastery.

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200

But there is a problem with the claim that South


Africa's legal practice lacks an adequate underpinning in
political morality and, thus, is morally infirm. From whose
perspective can such a judgment be made? In fact, there are
at least three points of view from which one could make
judgments about the adequacy of apartheid as a justifying
ground for South African legal practice:
(1)

an internal perspective, from within the legal practice


and political morality of South Africa;

(2)

an external perspective, from within some other


community's legal practice;

(3)

from the point of view of political morality as such,


i.e., in terms of the justifying values and principles
that any legal system ought to embody.
Consider perspective (2). An observer situated within

American legal practice,

for example, would find little to

commend in the South African legal system. In view of


American law's deep background values of equal concern and
respect for all citizens, an American observer would find
South African legal practice especially offensive because of
its background commitment to systematic inequality.
But what does this negative judgment really mean? On
Dworkin's conception of law as interpretation,

it means that

the grounds of law in South African legal practice include


justifying principles

(e.g., apartheid) that are inconsistent

with the justifying principles of American legal practice. So


legislation like the Separate Amenities Act, which is recog

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201

nized as valid and justified in South African law, would be


patently invalid and unjustified in American law.
But now consider perspective (1). A participant in South
African legal practice could object to this judgment on the
ground that it projects the background values of American law
onto South African law. Clearly, if South African legal
practice embodies justifying principles such as apartheid and
baasskap,

it cannot also embody a justifying principle like

equal concern and respect. So in judging South African legal


practice morally infirm and merely a preinterpretive version
of more fully justified legal systems, the American observer
has proposed an interpretation that does not actually fit the
community and legal practice of South Africa.
This raises once again the issue of context-dependence.
On Dworkin's theory, an interpretation of legal practice must
both fit the existing legal record and show how that record
incorporates the prevailing political morality of the commun
ity. This means that the best interpretations will always be
the most closely bound to the communities and legal practices
they interpret. This presents a major difficulty for making
evaluative judgments about legal practices other than one's
own. For one's convictions about the best justifying values
for law are likely to be conditioned by the ideological
commitments of one's own community and legal system.257
But suppose an American observer, anxious to break out
of this context-dependence, who makes the following claim:
although South African law does in fact embody background

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202

principles such as apartheid, it ought not to because the


background value of equality constitutes the most defensible
justification (in political morality)

for any legal practice.

This claim does not depend on the justifying role that equal
ity plays in American legal practice. It makes the broader
claim that equality is the best justifying ground for legal
practice in general. Hence, it assumes what was identified
earlier as perspective

(3).

It should be noted that this claim is not an internal,


interpretive judgment about a given community's legal prac
tice. That is to say, it does not seek to explain and justify
the legal practice of, say, South Africa, by showing how that
practice embodies the scheme of values and principles of
political morality that prevails in that community. Rather,
it is a general prescriptive judgment. It holds that, since a
political morality emphasizing equality is the best available
justification for law, all legal practices ought to incorpo
rate just such a justifying value.
But there is a problem with this claim. Its contention
that there are normative elements that all legal practices
should include assumes that there can be common elements
exhibited in all legal practices, independent of the local,
internal features emphasized by Dworkin's interpretive
approach to law. Further, granting this assumption seems to
concede too much to legal positivism. For positivists have
held all along that there are basic features exhibited by all
legal practices which can be used to identify any community's

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203

legal practice. Moreover, having identified the law of a


community, one can then proceed to evaluate it or. moral and
political grounds.
So Dworkin's interpretive approach to law seems commit
ted to one of two positions. First, one can accept that a
community's law is ultimately context-dependent since it de
rives its content from the particular political morality of
that community. This, however, makes the comparative evalua
tion of legal practices difficult. Or one can acknowledge
that legal practices share common features in virtue of which
they can be identified and criticized. But this view, of
course, is already held by positivism.

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204

C o n c lu d in g

R e m a rk s

This study has had two purposes, one expository and the
other critical. A brief review of these will help in summa
rizing our conclusions.

The expository account aimed at establishing two overall


claims about Dworkin's legal philosophy. First, despite their
piecemeal development, Dworkin's major writings present a
consistent and unified view of law. The comprehensive theory
of law in Law's Empire is really a broader articulation of
the same themes first explored in Taking Rights Seriously.
These themes - that law contains both explicit rules and
implicit background principles, that individual cases involve
determining what specific rights are authorized by the set
tled law, and that adjudication is an interpretive process of
explaining and justifying what the law is in a given case form the unchanging core of Dworkin's legal philosophy.258
The second expository claim is that Dworkin's legal the
ory is a significant and (in many respects)

superior alterna

tive to the traditional perspectives in legal philosophy natural law and legal positivism.
Dworkin conceives of law as interpretation aimed at pre
serving the overall integrity of legal practice. Underlying
this conception is Dworkin's claim that a community's legal
practice reflects, in its scheme of rules, principles and
institutions, the basic convictions of the community regard

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205

ing the most desirable and just ways of organizing and regu
lating its political life. These convictions of political
morality, embracing fundamental values like equality and jus
tice, form the basis for the community's legal practice. So
the specific branches of the law (e.g., contracts, torts,
criminal law) can be considered coherent schemes of rules and
principles to the extent that they consistently embody these
underlying values of political morality. Also, the specific
branches of law taken together form a coherent scheme of
legal practice. Again, this is because they embody

(albeit in

an abstract form) the fundamental values of political


morality that prevail in the community.
How does Dworkin's approach to law differ from and
improve upon natural law and legal positivism? Basically,
Dworkin offers a middle-ground alternative to the two tradi
tional theories, one that integrates the most compelling fea
tures of both.
The natural law perspective,

for example,

insists that

law must embody a specific moral content. That is to say,


what counts as law must reflect the practical requirements of
a natural moral order based on universal essences or purposes
fixed in nature.
Dworkin acknowledges that law embodies a specific moral
content. However,

for him, this content is both highly

abstract and localized. In other words, law's moral content


is the set of background principles and values of political
morality that prevails in a given community. It is abstract

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206

because it centers on highly general principles like justice,


equality and fairness. It is localized because legal prac
tices

(as well as political communities)

can and do differ

about what constitutes the most just, fair and egalitarian


forms of social and political life.
Moreover, Dworkin acknowledges the most compelling claim
of legal positivism, that there are factual tests, based on
origin and institutional practices of recognition, for iden
tifying the law of a community.
For Dworkin, it is virtually a truism that organized
legal practice embodies some conventional standards for rec
ognizing what counts as law. But these standards do not
exhaust the grounds of law. For when a community adopts spe
cific forms of legal practice

(and specific, determinate

rules in precedent and statute), it also makes implicit com


mitments to the principles of political morality that com
prise the best justification for these rules and practices.
So in those cases in which the settled, conventional grounds
of law "run out,11 the implicit background morality of legal
practice provides additional legal data to show judges, leg
islators and citizens where the thematic threads of law are
leading the community.
How has Dworkin "improved upon" the positivist and natu
ral law approaches to law? This question speaks to the criti
cal purpose of this study. Answering it requires exploring
Dworkin's conception of lav/ in slightly more detail.

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207

Throughout Law's Empire. Dworkin claims that conceptions


of law can be tested or measured by reference to two dimen
sions. First, a conception of law must fit a given legal
practice by accurately explaining how the bulk of its legal
record developed. Second, such conceptions must adequately
justify a legal practice by showing how it reflects a defen
sible political morality.
We can adapt and apply these same critical standards to
Dworkin's own theory of law. Dworkin holds that law is an in
terpretive concept. It is used to construct an interpretation
of a community's legal practice, portraying that practice as
an organized, coherent scheme of rights and responsibilities
that authorizes or limits the use of public coercion. Fur
ther, interpretation is designed to show that these rights
and responsibilities are not arbitrary. Indeed, they appear
in the scheme of legal practice at precisely those points at
which the community's conceptions of justice, fairness and
equality require either applying or withholding public coer
cion.259
On this conception of legal practice, practitioners like
judges are not simply enforcing existing law in a neutral
fashion. They are also acting upon and articulating the com
munity's implicit moral and political commitments. In view of
the coherent moral background that law expresses, and given
that participants in legal practice naturally regard law's
internal consistency as valuable and worth preserving,

judges

and other practitioners have an internal obligation to act in

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208

ways that preserve law's consistency with its justifying


background.
On this basis, Dworkin can provide a clearer and more
consistent account of adjudication (particularly in hard
cases) than the prevailing account derived from positivism.
In both easy and hard cases,

judges apply determinate law but

do so in a highly value-laden context. The difference between


easy and hard cases is that, in the latter, judges more self
consciously invoke the background political and moral commit
ments of the law. These commitments are still present in the
easy cases.
Dworkin's account is less disjointed and fragmented than
positivism's two-step explanation with its value-neutral,
easy cases and value-laden, hard cases. Moreover,

since on

Dworkin's view judicial discretion is strictly circumscribed


by the demands of integrity, his account of judicial behavior
is more defensible in terms of the background values of
democratic political communities. Unlike the positivist
adjudicator, who may legislate new legal rules as a means of
deciding hard cases, the Dworkinian judge performs a
different function. When a hard case arises, the Dworkinian
judge explores the implicit political morality in past
precedents and statutes. Her decision is not fresh
legislation but an articulation of the value commitments
embodied in past legislation.
Dworkin's interpretive approach to law succeeds because
of the connection he forges between legal practice and the

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209

background political morality that justifies that practice.


Clearly, one can construct an interpretation of the scheme of
justifying background principles of legal practice only
because legal practice has, in fact, incorporated just such a
scheme of principles. As we have seen, this feature of
Dworkin's theory rests on a causal assumption about the
coherence of the law that is, at least, arguable.
But the connection between political morality and legal
practice also accounts for the most serious problem with
Dworkin's theory.
Legal practices and their underlying political morali
ties are local features of particular cultural communities.
One's interpretation of a given legal practice, then, must
include those elements of the legal record and political
morality that are actually present in that practice. The more
an interpretation reflects the actual background convictions
and legal institutions of a given community, the better it
"fits" that community's law.
However, as the example of South African legal practice
has shown, political communities can differ from each other
(often drastically)

in terms of their reigning ideologies and

prevailing political moralities. These differences are, of


course, reflected in their distinctive forms of legal prac
tice .
But on the conception of law Dworkin proposes, the main
interpretive task aims at constructing an internal view of
legal practice. That is to say, one's interpretation aims at

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210

showing how a particular community's legal record reflects


and is justified by that community's underlying political
morality. The details of the interpretation are dependent
upon the context in which one is interpreting. So, while an
interpretation of American legal practice uncovers the basic
justifying value of equality, an interpretation of South
African practice shows an inegalitarian principle like
apartheid operating in the background.
But Dworkin's conception of law provides no contextindependent point within legal theory for making evaluative
judgments between divergent forms of legal practice. For what
counts as law in each legal practice is determined by the
scheme of background principles unique to that practice. So
Dworkin's interpretive conception of law is extremely limited
in scope of application.

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211

NOTF.S

1.

Dworkin, Law's Empire

(Cambridge, MA: Harvard Univer

sity Press, 1986), p. vii.


2.

Neil MacCormick provides one of the clearest defini


tions of "hard case:"
those litigated disputes in which, even apart
from any dispute about the facts of the mat
ter, there is a dispute between the parties
as to the bearing of the law on whatever
facts can be proven... The very point of the
dispute is as to what rule or doctrine among
rival possibilities governs.
"Dworkin as Pre-Benthamite," in MacCormick, Legal Right
and Social Democracy. (London: Oxford University Press,
1982). Reprinted in Marshall Cohen, ed., Ronald Dworkin
and Contemporary Jurisprudence (Totowa, NJ: Rowman and
Allanheld,

3.

1984), p. 186.

Dworkin, Taking Rights Seriously (Cambridge, MA: Har


vard University Press, 1977), p. 7.

4.

Dworkin himself admits to little concern over the rela


tionship between his earlier and later views,

(see

Law's Empire, intro., p. viii). Even so, there is re


markable internal coherence within the entire body of
Dworkin's work. But this is one of the claims of this
study that will be borne out in what follows.
5.

Dworkin, A Matter of Principle (Cambridge, MA: Harvard


University Press,

6.

1985), p. 148.

Alfred North Whitehead, Adventures of Ideas

(New York:

The Free Press, 1961), p. 221.

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212

7.

Dworkin's position is often referred to as a "third


theory of law," a distinctive "incorporation" of ele
ments derived from both the positivist and natural law
traditions which nevertheless presents independent, al
ternative answers to the philosophical problems common
to both "orthodox" traditions. In this regard see
especially John Mackie,

"The Third Theory of Law," in

Cohen, op. cit., pp. 161-170.


8.

Sartorius,

"Hart's Concept of Law," in Robert S. Sum

mers, ed., More Essays in Legal Philosophy. (Oxford:


Basil Blackwell,

1971), pp. 131-161. See particularly

pp. 132-135. See also another, even older treatment by


Richard Wollheim,
Studies 128
9.
10.

"The Nature of Law," 2 Political

(1954).

Ibid., p. 134.
Although, as Dworkin is at pains to show, this purport
edly neutral test in fact is heavily biased toward for
mal questions like the systemic character of law and
semantic issues such as the meaning of 'law' ques
tions and issues which are characteristically at the
core of legal positivism. Perhaps inadvertently reveal
ing this bias, Sartorius employs Austin's legal theory
as an illustration of his theoretical model. See Sarto
rius, op. cit., pp. 134-135.

11.

Thomas Aquinas,
(articles)

Summa Theologiae. Iallae,

90,

1, 2, 4, in Anton C. Pegis, ed.,

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213

Introduction to St. Thomas Aquinas (New York: Modern


Library,
12.

1948), pp. 610, 612, 615.

These elements of Aquinas' account of legal validity


are presented here merely as a sketch. Naturally some
questions arise concerning the content of his standards
of validity: Aquinas' answers to such questions are
found in several of his works. On(a)
Summa Theoloaiae. Iallae, 90, 4,

"common good" see

(pp. 611-613 in

Pegis), and De Recrimine Principum. Book I, ch. 1, in


A.P. D'Entreves, ed., Aquinas. Selected Political
Writings

(New York: Macmillan,

1959). On (b) "legally

competent authority" see Summa Theoloaiae. Iallae,


3,

90,

(pp. 613-615 in Pegis) : DeReaimine Principum. Book

I, chs. 2,8,10: Summa Theoloaiae. Ilallae, 104, 5,

(pp.

177-178 in D'Entreves). On (c) "promulgation" see Summa


Theoloaiae. Iallae, 90, 4,
13.

(pp. 614-616 in Pegis) .

Summa Theoloaiae. Iallae, 95, 2. Or more emphatically,


"lex humana intantum habet rationem legis, inquantum
est secundum rationem rectam... Inquantum vero a ratione recedit, sic dicitur lex iniqua: et sic non habet
rationem legis, sed magis violentiae cuiusdam."
Summa Theoloaiae Iallae.

14.

This summary, though correct in its main lines, short


changes Aquinas' quite sophisticated account of justice
with his complex analysis of natural and positive jus
tice and their mutual relations. See particularly Summa

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214

Theoloaiae Ilallae, 57, 2: S.T. Ilallae, 58,

(articles)

5,7.
15.

Joseph Raz, The Concept of a Legal System (Oxford:


Clarendon Press, 1970), see especially chapter VII.

16.

Martin P. Golding, Legal Reasoning (New York: Alfred


Knopf, 1984), p. 1.

17.

H.L.A. Hart, Essavs in Jurisprudence and Philosophy


(Oxford: Clarendon Press, 1983). pp. 109-110.

18.

Dworkin,

"Wasserstrom, The Judicial Decision," 75

Ethics 47,

(October, 1964).

19.

373 Mass. 96, 364 N.E. 2d 1251

(1977) .

20.

For a discussion of the Fortune case and its signifi


cance for contract law doctrine in general, see Charles
Fried, Contract As Promise

(Cambridge, MA: Harvard Uni

versity Press, 1981), pp. 85-91. The theory of contrac


tual obligation Fried elaborates is explicitly
"liberal" and, as will be seen in chapter 4 of this
study, closely parallels Dworkin's overall legal theo
ry.
21.

The relevant definition of "good faith" concerning per


formance of contractual obligations is taken from the
Uniform Commercial Code, article 1, part 2, section 19:
'Good faith' means honesty in fact in the conduct or
transaction concerned. See Len Young Smith, et. al.,
Essentials of Business Law (St. Paul. MN: West, 1983).
Appendix A. p. 3.

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215

22.

See especially Dworkin, A Matter of Principle (Cam


bridge, MA: Harvard University Press, 1985), p. 159.

23.

Ibid., p. 159. Emphasis added.

24.

One further point should be noted in considering


Fortune v. National Cash Register Co. The legal
principle of "good faith in performance" is, at the
same time, a part of statutory law governing contracts
(including employment contracts)

since it is an expli

cit provision of the Uniform Commercial Code, adopted


in all 50 state jurisdictions in the United States.
Fried rightly remarks on the novelty of statute paying
such explicit tribute to a legal principle. Fried, op.
cit., p. 77.
25.

Stated so broadly and generally this

description of the

"interpretive attitude" raises numerous problems

of its

own not the least being Gadamer's problem of the


"hermeneutic circle."

[See Truth and Method. Trans, and

ed. by Bardin and Cumming,

(London: Sheed and Ward,

1975).] These issues, as well as the connections be


tween Dworkin's account and Rawls' notion of "reflec
tive equilibrium" are explored in chapter 4 below.
26.

Dworkin, Law's Empire, p. 90

27.

Dworkin, Taking Rights Seriously, p.

28.

Ibid., p. v i i i .

29.

Dworkin, Taking Rights Seriously, op. cit., p. 5.

30.

"The question of justification has important ramifica

vii.

tions, because it affects not only how far judicial au-

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216

thority extends, but the extent of an individual's po


litical and moral obligation to obey judge-made law."
Dworkin, Ibid.. p. 5.

- a. .

31.

Dworkin, Law's Empire, p. 152.

32.

Hart, The Concept of Law. (New York: Oxford University


Press, 1961), p. 181.

33.

This statement of legal positivism's central theme suf


fers from several defects, ambiguity and oversimplifi
cation being only two of the more obvious ones. More
over, this statement on its face could apply equally
well to positive morality as to positive law. However,
at this point these defects merely need to be noted;
further elaboration of positivism's "central theme" in
section 1 below will justify its pretension to be a
statement of legal positivism's common content. The is
sue of specifying positivism's theoretical content is
usefully explored by David Lyons in two articles:
"Principles, Positivism and Legal Theory," Yale Law
Journal 87 (1977) : 415-35; "Moral Aspects of Legal The
ory, " Midwest Studies in Philosophy, vol. 7, 1982,
reprinted in Cohen, ed., Ronald Dworkin and
Contemporary Jurisprudence, pp. 4 9-69. See also Samuel
Shuman, Legal Positivism (Detroit: Wayne State
University Press, 1963).

34.

The principal works here are: Hans Kelsen, General


Theory of Law and State. Trans. Anders Wedberg (New
York: Russell and Russell, 1961); Holmes, O.W.,

"The

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217

Path of the Law, "Harvard Law Review 10 (1897): 457478, and The Common Law, ed. by Mark DeWolfe (Boston:
Little, Brown, 1963); Roscoe Pound, An Introduction to
the Philosophy of Law (New Haven: Yale University
Press, 1922) .
35.

John Austin, The Province of Jurisprudence Determined,


ed. by H.L.A. Hart

(London: Library of Ideas, 1954), p.

14. Compare with Bentham's various clarificatory state


ments about the meaning of 'law' in Of Laws in General,
ed. by H.L.A. Hart, in The Collected Works of Jeremy
Bentham (London: Athlone Press, 1970).
36.

Austin summarizes Blackstone's view in the following


way:
The laws of God are superior in obligation to
all other laws... no human laws could be suf
fered to contradict them... human laws are of
no validity if contrary to them..." The mean
ing of this passage of Blackstone, if it has
a meaning, seems rather to be this: ... that
no human law which conflicts with the Divine
law is a law.
Austin, The Province of Jurisprudence Determined, pp.
184-85.

37.

David Lyons, Ethics and The Rule Of Law (Cambridge:


University Press, 1984), p. 37.

38.

Austin, The Province of Jurisprudence Determined, pp.


18f f .

39.

Austin's use of the term "positive" to describe law in


terms of its origin as the legislative act of an au
thoritative person or institution largely accounts for

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218

the practice of designating the ensuing tradition in


jurisprudence as legal "positivism." See especially
Shuman, Legal Positivism, p. 11.
40.

Hart,

"Positivism and the Separation of Law and

Morals," Essay 2 in Essays in Jurisprudence and


Philosophy, pp. 49-88.
41.

Hart, Essays. This "survey" is adapted from a note to


pp. 57-58.

42.

Hart, The Concept of La w , p. 24. Hart's dismantling of


the imperatival theory here is not confined merely to
Austin's version but also criticizes the use of the
command concept in non-imperatival legal theories like
that of Kelsen. His complete discussion of the command
model spans chapters II-IV of The Concept of Law, pp.
18-76.

43.

Constitution of The United States. Article 1, section


7, paragraph 1:
All bills for raising Revenue shall originate
in the House of Representatives; but the
Senate may propose or concur with Amendments
as on other bills.

44.

Hart, The Concept of La w , p. 31.


As Hart notes further on in this discussion, the coer
cive command model of law engenders a "prejudice that
[all laws] must be reducible to a single type." The
Concept of Law, p. 32.

45.

See Shuman, Legal Positivism, particularly his discus


sion in chapter 1 of the "essential content" of legal

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219

positivism. See also Raz, Practical Reason and Norms


(London: Hutchinson University Press,

1975), pp. 129-

130. For some claims, characteristic of Kelsen's the


ory, that invite this sort of interpretation see General Theory of Law and State, especially the following
passages:
(a) Kelsen's denial of the notion of "gaps" in the law,
pp. 146-149;
(b) Kelsen's assertion that "only law can be the
'source' of law," pp. 152-153.
46.

Hart, The Concept of Law, p. 123.

47.

Following Waismann, William Alston connects the inher


ent vaaueness of general terms with the notion of open
texture, which Alston explains

as the "possibility of

vagueness":
although we can make a decision in any given
kind of case... there will always be an
indefinite number of other conceivable cases
with respect to which [a] concept is still
not delimited
Alston, Philosophy of Language

(Englewood Cliffs, NJ:

Prentice Hall, 1964), pp. 94-95.


48.

The example of a rule restricting operation of vehicles


in the park is Hart's most commonly cited illustration
of vagueness and indeterminacy of meaning in legal
rules. See especially The Concept of Law, pp. 125-126,
for one version; and Essays, pp. 63-65, for another.
Hart's analysis of these issues is vastly richer in
depth and scope than the point made here.

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220

49.

Hart, The Concept of Law, p. 123.

50.

Hart, Essays. p. 67.

51.

David Lyons, "Moral Aspects of Legal Theory,"

inCohen,

ed., Ronald Dworkin and Contemporary Jurisprudence, p.


49.
52.

Hart, The Concept of Law, pp. 181-182.

53.

Ibid.. p. 181.

54.

Of particular interest in this respect are the

(a) "due

process" and (b) "equal protection" clauses of the


Fourteenth Amendment:
[(a)] nor shall any state deprive any person
of life, liberty or property without due pro
cess of law; [(b)] nor deny to any person
within its jurisdiction the equal protection
of the law.
The phrases "due process of law" and "equal protection
of the law" embody substantive and not merely formal
content; and at least part of their meaning requires an
analysis of prevailing community moral and political
values. See Dworkin's discussion of the moral content
of these phrases in "The Forum of Principle" in A
Matter of Principle, p. 49. Also, see George W. Spicer,
The Supreme Court and Fundamental Freedoms. 2nd edition
(New York: Appleton-Century-Crofts,

1959), pp. 200-203,

for a discussion of the Supreme Court's successive


"elaboration" of the substantive content of these two
clauses.
55.

Hart, Essays, p. 55. Hart endorses this as the sub


stance of Bentham and Austin's positivism.

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221

It should be noted that, as David Lyons has pointed


out, even Hart's straightforward statement of the sepa
ration thesis is somewhat unclear. The actual content
of the claim is best expressed (or so Lyons contends)
in what he calls the "Minimal Separation Thesis":
law is subject to moral appraisal and does
not automatically satisfy the standards by
which it is judged. In brief, law is morally
fallible.
Lyons, p. 49, in Cohen, op. cit. Though Lyons is cor
rect in one sense - the "Minimal Separation Thesis" is
surely implicated in Hart's broader claim - it reduces
the whole idea of a separation between law and morals
to triviality.
56.

Hart, Essays, p. 57.


Hart elsewhere describes "analytic jurisprudence" as
the elucidation of fundamental legal notions
by the analysis of the distinctive vocabulary
of the law and by the classification of its
terms in such a way as to bring out their
logical interconnections.
Introduction to Austin, The Province of Jurisprudence
Determined, ed. by Hart

(London: Library of Ideas,

1954) p. xv.
57.

Lyons,

in Cohen, op.cit., p. 51.

58.

Hart, Essays, p. 82.

59.

Hart, Essays, p. 83.

60.

Shuman's Legal Positivism is a

particularly clear exam

ple of this confusion. Employing Kelsen as a positivist


"exemplar" he makes

(a) the separation thesis, and (b)

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222

ethical non-cognitivism the "tests" for a genuinely


positivistic legal theory. See chapters 3 and 5 in
Legal Positivism.
61.

A.J. Ayer, Language. Truth and Logic (New York: Dover,


1952), chapter 6.

62.

Such a theory would probably endorse a definitional


statement like the following:
A rule is a valid rule of law if and only if
it embodies the moral principle of treating
equally all those relevantly similar persons
who are subject to it. [That is, rule x is a
valid rule of law if and only if x is
"just."]
Note also that the role played here by an explicitly
moral conception of justice differs from Hart's notion
of "natural justice" as internally related to the con
cept of 'law' and from Fuller's thesis of the "internal
morality" of the law.

63.

Hart's "minimum content" thesis regarding natural law


is discussed in section 3 below. See The Concept of
Law, pp. 189-195.

64.

Hart, Essays. p.3.

65.

"All questions of law are no more than questions con


cerning the import of words. Questions the solution of
which depend upon skill in metaphysics."
From the University College Bent'nam Manuscripts. Box
69, p. 181., quoted in James Steintrager, Bentham.
(Ithaca, NY: Cornell University Press, 1977), p. 23.

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223

66.

See J.L. Austin,

"Performative Utterances" in his

Philosophical Papers

(London: Oxford University Press,

1961), p. 235; and his How To Do Things With Words


(London: Oxford, 1962), Lecture VIII.
67.

Wittgenstein, Philosophical Investigations, trans.,


G.E.M. Anscombe

(New York: Macmillan, 1953), Part I,

para. 43, p. 20:


For a large class
all - in which we
it can be defined
is its use in the
68.

of cases - though not for


employ the word 'meaning,'
thus: the meaning of a word
language.

The Concept of Law, note on general terms and common


qualities, p. 234.

69.

Hart,

"The Ascription of Responsibility and Rights," in

Flew, ed., Logic and Language. First Series,


Basil Blackwell,

(London:

1951), see especially pp. 156-160.

Note also that in this case both elements of Hart's


method - the Austinian distinction between descriptive
and performative functions of language and Wittgen
stein's notion of meaning as use - are brought to bear
in this analysis.(a)

is Austin's formulation;

(b) is

taken from Holmes' "Path of the Law," op. cit., p. 173.


70.

The Concept of Law, p. 14.

71.

Ibid., p. 133.

72.

Wittgenstein, op. cit., pp. 174, 226.

73.

Dworkin, Law's Empire, p. 47.

74.

The Concept of Law,

p. 15.

The several instances of a general term are often

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224

linked together in quite different ways from


that postulated by the simple form of defini
tion. They may be linked by analogy... by
different relationships to a central ele
ment... [or they] may be different constitu
ents of some complex activity.
75.

The Concept of

Law, p. 56.

76.

Ibid.. p. 84.

77.

The Concept of Law, p. 85.

78.

Hart describes

the "prioritizing" of such criteria in

the following way:


We may say that a criterion of legal validity
or source of law is supreme if rules identi
fied by reference to it are still recognized
as rules of the system, even if they conflict
with rules identified by reference to the
other criteria, whereas rules identified by
reference to the latter are not so recognized
if they conflict with the rules identified by
reference to the supreme criterion.
The Concept of Law, p. 103.
79.

M . P . Golding, Philosophy of Law (Englewood Cliffs,


N.J.: Prentice-Hall,

1775), p. 15

On the notion of jural complexity, Golding provides

set of five jointly sufficient conditions, all involv


ing the existence of specific types of adjudicative,
legislative and enforcement agencies, for asserting
that a legal system exists in a given society.
80.

The Concept of Law, p . 189.

81.

Neil MacCormick, Legal

Reasoning and Legal Theory

(Oxford: Clarendon Press, 1978), p. 229.


82.

The Concept of Law, p.

83.

Ibid.. p. 123.

84.

The Concept of Law, p.

122.

124.

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225

85.

115 N.Y. 506, 22 N.E. 188 (1889).

86.

Quoted in Golding, Legal Reasoning, op. cit., p. 85.

87.

This model for' a hard case is proposed here mainly as a


device to facilitate discussion of Dworkin's account of
adjudication. It should be noted that, though most hard
cases do reflect either case novelty or adjudicative
tension, many exhibit elements of both. Riggs, for
example, is both a novel fact situation (a murderer
seeking to inherit his victim's estate) and an instance
in which the legal rules governing wills and inheri
tance pull toward an adjudicative outcome at variance
with more general common law principles.

[In the case

of Riggs even, this description may be tendentious,


since the question of whether and in what way princi
ples may be considered part of the law is precisely the
issue on which Dworkin ana orthodox positivists dis
agree. But this issue will become clearer later in this
chapter.] See Thomas D. Perry,

"Contested Concepts and

Hard Cases," Ethics 88 (1977), 20-35; MacCormick, Legal


Reasoning and Legal Theory, op. cit., chapter VIII.
88.

Dworkin, Taking Rights Seriously, p. 45.

89.

"A Reply by Ronald Dworkin" in Ronald Dworkin and


Contemporary Jurisprudence, op.cit., p. 247.

90.

See Taking Rights Seriously, p. 67, for Dworkin's com


ments on the relation between a justifying theory of
the law and' judicial duty.

91.

See Chapter 1, section 1, above.

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226

92.

References for these formulations of Dworkins theory


are scattered throughout Taking Rights Seriously and
Laws Empire. They will be specifically cited in the
discussion that follows.

93.

32 N.J. 358, 161 A. 2d 69(1960).


A somewhat different account of this case is given in
G. Edward White, Tort Law in America; An Intellectual
History. (Oxford, University Fress. 1980), p. 170ff.
White tries to show that it fits in with a line of
precedent cases in which the doctrine of strict liabil
ity becomes the standard legal test in defective prod
ucts cases.

94.

Briefly, these encompass mutual assent of the parties,


consideration, the legality of the contract's object
and both parties' fulfillment of the conditions for
contractual capacity.

95.

Quoted by Dworkin, Taking

96.

Ibid.. p. 24.

97.

Ibid.. p. 24.

98.

Fried cites Henningsen

Rights Seriously,

as anexample

p. 24.

ofcontracts

("hard bargains") in which the law condones vastly un


equal economic position between contractors. See Fried,
Contract as Promise, op. cit., p. 104.
99.

Q.B. 599 (1981), 1 A.C. 410

(1983).

This case is especially noteworthy because it figures


prominently in Dworkin's arguments for his conception
of law as integrity in Law's Empire, esp. pp. 24 0-263.

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227

100.

In his summary of the McLoughlin case (which is em


ployed here), Dworkin notes two specific precedents
cited by the

plaintiff,

(a) Marshal?, v. Lionel Enterprises. O.R., 177

(1972),

in which a wife was compensated for emotional in


jury suffered from coming upon her husbands body
at the scene of a fatal accident;
(b) Chadwick v. British Transport. 1 W.L.R. 912 (1967),
in which a volunteer rescue worker was compensated
for delayed emotional injury suffered some hours
after he assisted at the scene of a train crash.
See especially Law's Empire, pp. 24-30.
1 01 .

MacCormick describes the process in the following


terms:
To the extent that a rule can be or has been
formulated in clear terms authorized by bind
ing precedent, it is to be applied according
to its terms when its operative facts are
satisfied [in the instant case].
Legal Reasoning and Legal Theory, op. cit., p. 220.

102.

Law's Empire, p. 27.


Among these consequences, encouragement of more law
suits for emotional injury and opening new opportuni
ties for possibly fraudulent claims of emotional in
jury.

103.

Hart, Essays, op.

cit., p. 125.

104.

Hart, Essavs. op.

cit., p. 106.

105.

This doctrine is ordinarily defined as theprinciple


that rules of law enunciated andapplied by

courts in

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228

past decisions are (later) adhered to and appealed to


in deciding cases of a similar nature.
106.

Taking Rights Seriously, p. 124.

107.

See especially Taking Rights Seriously, p. 82ff. for


Dworkin's discussion of these issues.

108.

Taking Rights Seriously, p. 34.

109.

Hart, Essays, op. cit., p. 107.

110 .

Dworkin also notes what he considers an important de


fect in what might be called the logic of rules,
Rules are applicable in all or nothing
fashion. If the facts a rule stipulates are
given, then either the rule is valid, in
which case the answer it supplies must be
accepted, or it is not, in which case it
contributes nothing to the decision.
Taking Rights Seriously, p. 24.
Positivism's insistence on the rule model of law vir
tually guarantees the generation of hard case situa
tions, since even the most explicit, detailed rules
will sometimes

fall short if they must apply in an all

or nothing fashion. Of course, as chapter 2 indicates,


Hart's account of rules is largely immune from this
particular criticism.
111.

Taking Rights Seriously, p. 82.

112 .

Ibid., p. 82.

113.

The class action is a legal device which "allows one or


more persons to sue or be sued on behalf of themselves
and other individuals who allegedly possess similar

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229

grievances." Mary Kay Kane, Handbook of Civil


Procedure. (St. Paul, MN: West, 1985), p. 253.
114.

Taking Rights Seriously, p. 85. See also Brian Barry,


Political Argument. (London: Routledge, 1965), pp. 207225.

115.

Taking Rights

Seriously, p. 84.

116.

Taking Rights

Seriously, p. 29.

117.

This is a conception of the


by both legal

adjudicative process shared

realists, who deny theexistence

of

de

terminate legal rules, and critical legal studies


scholars, who claim that the rules of legal systems are
simply the institutionalization of systematic class and
economic biases.
See Lyons, Ethics and The Rule of Law, op. cit., p. 39;
and David Kairys, ed., The Politics of Law. (New York:
Pantheon Books, 1982).
118.

Taking Rights Seriously, p. 22.

119.

Dworkin does use a similarly rhetorical flourish in re


ferring to the U.S. Supreme Court's unique political
role in exercising judicial review:
We have an institution that calls some issues
from the battleground of power politics to
the forum of principle. It holds out the
promise that the deepest, most fundamental
conflicts between individual and society will
once, someplace, finally, become questions of
justice.
A Matter of Principle, op. cit., p. 71.

120.

These passages are, respectively, Taking Rights


Seriously, p. 2 93; Ibid., p. 67; Law's Empire, p. 90;

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230

Cohen, ed., Ronald Dworkin and Contemporary


Jurisprudence. Reply by Dworkin, p. 254.
121.

Dworkin's conception of interpretation resembles in


many respects Gadamer's conception of textual hermeneu
tics, interpretation is fundamentally "circular," for
Gadamer, since there is a reciprocal interdependence
between the parts and the whole of the interpreted
item. Moreover, interpretation involves an open-ended
dialogue between the text (in Dworkin's case, the legal
data) and the point of view of the interpreter (that
is, the "perspective" represented by the justifying
background principles of political morality). These
points form the core of chapter 4 below.

See Gadamer,

Philosophical Hermeneutics, trans. by David Linge,


(Berkeley: U. of California Press, 1977).
122.

The attorney's aim, of course, is to invoke moral and


political principles in order to establish a certain
set of rights and duties in a specific case. The theo
retician, however, is concerned with showing how the
settled law embodies a particular,' detailed set of jus
tifying moral principles, and with showing how these
principles can, in specific cases, entail determinate
rights and duties. See Law's Empire, op. cit., pp. 98,
101, 106.

123.

Michael D. Bayles, Principles of Law: A Normative


Analysis. (Boston: D. Reidel, 1987), p. 367. Bayles

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231

this the "principle of succession" which is involved in


both will and more general contract law.
124.

Taking Rights Seriously, op. cit., p. 87.

125.

Law's Empire, o p . cit., p . 88.

126.

Dworkin must maintain, of course, that articulate con


sistency applies as a regulative ideal across the spec
trum of legal decision. In other words, any legal deci
sion must, at least potentially, be capable of being
justified and accounted for by reference to an overall
justificatory theory of the law.

127.

The first is adapted from Bayles' "principle of preven


tion, " a general normative standard of the criminal
law. See Bayles, Principles of Law, op. cit., p. 370.
The other is adapted from the New York Appeals Court's
opinion in Riggs v. Palmer. In Riggs we find the fol
lowing statement:
[A] 11 laws, as well as all contracts, may be
control led in their operations by funda
mental maxims of the common law. No one shall
be permitted to profit by his own fraud, or
to take advantage of his own wrong, or to
found any claim upon his own iniquity, or to
acquire property by his own crime.
See 115 N.Y. 506, 22 N.E. 188

(1889), op. cit.

128.

Taking Rights Seriously, op. cit., p. 22

129.

These principles are adapted from Bayles' normative ac


count of torts. See Bayles, Principles of Law, op.
cit., pp. 369, 225.

130.

The reader will recall that the emotional injury suf


fered by plaintiff McLoughlin occurred away from the

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232

accident scene - at the hospital some hours later - and


thus differed from the categories of emotional injury
in the cited precedents. See Dworkin, Laws Empire, op.
cit., pp. 24-30.
131.

See Dworkin, Taking Rights Seriously, op. cit., pp.


viii, 29.

132.

Dworkin,

"Social Rules and Legal Theory," Yale Law

Review 81 (1972), p. 876.


133.

Stephen Toulmin, Reason in Ethics.

(Cambridge: Univer

sity Press, 1968), p. 139. It should be noted that this


account of scientific principles is controversial. Many
philosophers of science propose alternative accounts.
134.

See G.J. Warnock, The Object of Morality. (London:


Methuen,

1371), pp. 86-87: R.M. Hare, Mora 1 Thinkincr,

(Oxford: Clarendon Press, 1981), p. 41. The same is


true of political principles.
135.

Bayles, Principles of Law, op. cit., p. 12. See also


Golding, Legal Reasoning, op. cit., pp. 61-65.

136.

Dworkin, A Matter of Principle, op. cit., p. 143.


Dworkin calls these the two "dimensions" of principles.

137.

MacCormick, Legal Reasoning and Legal Theory, op, cit.,


pp. 152-169, 233-239.

138.

MacCormick,

op. cit., p. 232.

139.

Ibid., p. 233.

140.

Ibid., pp. 235, 157.

141.

Ibid.. p. 157

142.

Taking Rights Seriously, op. cit., p. 87.

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233

143.

Although Dworkin does state this more forcefully at


times,
We might treat legal principles the way we
treat legal rules and say that some princi
ples are binding as law and must be taken
into account by lawyers and judges.
Taking Rights Seriously, op. cit., p. 29. See also pp.
26.

144.

145.

Joel Feinberg,

Social Philosophy

Prentice Hall,

1973), p. 58.

(Englewood Cliffs, NJ:

See Ibid.. pp. 55-67; also, Lyons, Ethics and the Rule
of Law, op. cit., p. 124: and, S.I. Benn and R.S. Pe
ters, The Principles of Political Thought
Macmillan,

146.

(New York:

1959), pp. 101-109.

As Dworkin explicitly acknowledges in Taking Rights


Seriously, his is a liberal theory of law, thus a
theory that embodies substantive commitments in moral
and political theory. The deeper point here, one that
is made throughout Law's Empire in the theory's later
version, is that a theory's normative and conceptual
elements cannot be separated without impairing the
soundness and completeness of the theory. Also, the
emphasis in Taking Rights Seriously on rights as the
core elements of the theory is supplanted, in Law's
Empire, by the more basic claim that law is an inter
pretive concept.

147.

Taking Rights Seriously, op. cit., p. xi.

148.

Ibid.. pp. 90-94.

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234

149.

Dworkin, A Matter of Principle, op. cit., p. 144.

150.

As will become clear in chapter 5, communal agreement


about basic convictions like justice is a basic presup
position of Dworkin's notion of political morality.

151.

347 U.S. 483 (1955). This is the standard citation to


the official federal recorder for Brown. In view of the
familiarity of the case, the sketch provided in the
text here will make no direct references to the federal
recorder, but will refer instead to the accounts given
in Dworkin, Law's Empire, pp. 29-30; Archibald Cox, The
Court and the Constitution (Boston: Houghton Mifflin,
1987), pp. 257-258; and, Spicer, The Supreme Court and
Fundamental Freedoms, op. cit., pp. 181-183.

152.

163 U.S. 537 (1896). See Spicer, op.cit., pp. 179-180.

153.

Cox, op. cit., p. 257.

154.

Taking Rights Seriously, op.cit., p. 105.

155.

In chapters 4 and (especially) 5 of this study, the


precise content of the phrase "the most defensible
principles of political morality" will be explored in
more detail.

156.

At times Dworkin refers to this as the requirement of


total consistency, though the same basic idea is given
here. See Taking Rights Seriously, op. cit., p. 119.

157.

Ibid., p. 84.

158.

Spicer, op. cit., p. 173.

159.

MacCormick,

"Dworkin as Pre-Benthamite," in Cohen, ed.,

op. cit., p. 183.

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235

160.

[A] Law consists of both legal rules, explicitly


formulated in some authoritative legal text or
identifiable by reference to institutionally
accepted standards of recognition, and moral/
political principles which underlie and are
expressed in legal rules.
[B] Legal argument and analysis is fundamentally
interpretive in character and is both directed
toward and constrained by the constellation of
rules and principles (and the special institutional
history) that comprises the settled law of the
community.
[C] The content and validity of what is taken to be the
"settled law" is ultimately determined by reference
to those principles encompassed in the soundest
theory of that law - i.e., the most defensible
moral and political theory cohering with and
justifying the settled law.
[D] The aim of adjudication is the discovery of
determinate, individual rights in each particular
case - such rights being those specifically
authorized by legal institutions and, ultimately,
sponsored by the justifying background theory of
the legal system.
[E] Law is itself an interpretive concept employed for
constructing an abstract description of the point
of legal practice as a whole and for justifying

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236

this practice in light of the community's political


morality.
161. To use a Dworkinian phrase, this core argument is a

constructive interpretation. It combines elements of both


the earlier and later versions of Dworkin's theory,

from

Taking Rights Seriously and Law's Empire, respectively.


The core argument represents the most plausible and
coherent reading of Dworkin's overall theory of law. In
effect, it is an interpretive attempt to reconcile the
two versions of the theory. The reader will also recall
that in the introduction to this study a distinction was
drawn between genetic and analytic accounts of Dworkin's
theory. The former traces the historical development of
the theory, the latter exhibits the logical connections
among its elements. The core argument presented here
draws on both types of accounts.
162. See chapter 3, section 1, part b of this study.
163. Though described in slightly different terms here these
"background principles" are equivalent to the "soundest
theory of the settled law" familiar from chapter 3.
164. See chapter 1, section 2 of this study.
165. As Dworkin puts it in Taking Rights Seriously
Legal rights may be identified as a distinct
species of a political right, that is, an
individual right to the decision of a court
in its adjudicative function, (p. xii)
Such a right is a politically justified claim on the part
of an individual, a claim which the institutions of legal

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237

practice are bound to recognize because they are bound to


maintain consistency between the law and background
political morality. See also Taking Rights Seriously, pp.
101, 104. The contrast Dworkin intends here with legal
positivism is clear. Rights alone are, for Dworkin,
justifiable grounds for judicial decision; this is so as
a matter of political morality. But for positivism,
community aims and social goals can function equally well
as grounds.
166. Law's Empirer op. cit., p. 7. See also Chapter 3, section
2 of this study for an extended discussion of Riggs v.
Palmer.
167. For Dworkin, the "grounds of law" are "the more familiar
kinds of propositions on which [the] propositions of law
are... parasitic" and in virtue of which the propositions
of law are either true or false.

(Law's Empire, op cit.,

p. 4). What Dworkin envisages here are general


propositions

(e.g., Hart's ultimate rule of recognition

or Dworkin's own basic principle of equal concern and


respect) stating the conditions that must be satisfied
for a given proposition of law to be true.
168. Law's Empire, op. cit., p. 44. The positivist concentra
tion on factual grounds for law leads, in Dworkin's
opinion, to evasions of the issue of theoretical dis
agreement. Since, for positivism, what the law is depends
upon plain facts about the past actions of legal institu
tions,

"theoretical disagreement is illusory and better

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238

understood as argument not about what law is but about


what law should be."

(Law's Empire, p. 31.) On this view,

legal argument in cases like Riggs is really a disguised


plea for repairing law in ways that are morally more
coherent or justifiable. And if this explanation fails to
reflect that legal argument appears to concern what law
is
Some positivists have a quick answer: judges
pretend to be disagreeing about what the law
is because the public believes there is
always law and that judges should always
follow it. On this view lawyers and judges
systematically connive to keep the truth from
the people so as not to disillusion them.

(Law's Empire,/ p. 37).


169. This point applies as well to the Henningsen and
McLoughlin cases. In these as well as in Riggs the
dispute centers upon principles that are not so much the
product of deliberate legislative enactment as they are
background principles that both justify the existing
legal rules and portray these rules as part of a coherent
scheme of legal practice.
170. Riggs exemplifies this clearly. The defendant Elmer,
assuming the plain fact view of the grounds of law,
argues that only the duly enacted statutes are relevant
to determining whether he should inherit. The plaintiffs
argue that the outcome can only be determined by first
establishing a justifying point or ground for law in
general. This point would reconcile both the underlying
purposes of the statutes of wills and the broader

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239

purposes of the law in general - e.g., to discourage


intentional wrongdoing for profit and to protect the
lives of innocent persons. When interpretation embraces
such large, background aims, it seeks to impose upon the
resulting decision a standard of consistency that is
correspondingly larger in scope as well. Thus, once the
abovementioned background purposes are made explicit, it
is clear that an internally consistent legal practice
could not countenance Elmer's inheriting a portion of his
murder victim's estate. In the language of Dworkin's
theory, these grounds of law would indicate that the
proposition of law,

"Elmer Palmer is entitled to inherit

under his grandfather's will," is false.


171. Dworkin expresses this point about the uniqueness of law
as a social practice in various ways. For example, in A
Matter of Principle, he says that the
Law is an enterprise such that propositions
of law do not describe the world in the way
ordinary propositions do, but rather are
propositions whose assertion is warranted by
certain ground rules, (p. 135)
172. Even Hart's noted distinction between the internal and
external points of view in The Concept of Law does not
deviate from the broadly descriptive,

factually oriented

project of positivism. Hart's aim is still one of


"descriptive sociology" intended to further the
"understanding of law, coercion and morality as different
but related phenomena. {The Concept of Law, op. cit.,
preface). An example of this: the difference between the

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240

internal and external points of view regarding a


particular social rule, even for Hart, is largely a
matter of behavioral facts, though the behavior involved
is different depending upon the point of view in
question. Citizens who adopt the internal point of view
toward a rule both comply with the rule and accept it.
But Hart's criteria for acceptance (or internalization)
are behavioral and consist in the willingness of such
citizens to use the rule as a standard of criticism of
self and others. See The Concept of Law, op. cit., pp.
84-85.
173. Law's Empire, op. cit., p. 47.
174. Ibid.. p. 47.
175. Law's Empire, op. cit., p. 52.
176. Dworkin gives a more formal description of constructive
interpretation as follows:
[C]onstructive interpretation is a matter of
imposing purpose on an object or practice in
order to make of it the best possible example
of the form or genre to which it is taken to
belong... Each interpreter's choice must
reflect his view of which interpretation
proposes the most value for the practice which one shows it in the better light.
Law's Empire, op. cit., pp. 52-53.
177. See Law's Empire, op. cit., p. 101. For Dworkin, one of
the implicit standards for choosing among competing
interpretations is the degree to which an interpretation
preserves the continuity between the details of legal
practice and their political justification.

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241

178. There are many instructive parallels between Dworkin's


conception of interpretation and Gadamer's notion of
hermeneutics. For Gadamer, hermeneutical interpretation
is "dialogical," since it requires a reciprocal
understanding of the elements of the elements of a text
or practice by reference to the overall whole. Further,
what one takes to be the shape of the whole is a product
of the best, most coherent arrangement of the elements.
Moreover, interpretation for Gadamer cannot be neutral or
objective in the sense of being "unconditioned" since the
interpretive standpoint is located within the text or
practice itself. The interpreter's standpoint is con
stituted by the pre-interpretive "legitimate prejudices"
the interpreter brings to the task. These stem from the
interpreter's commitment to the importance and value of
the practice or text in question, the influence of the
value assumptions of the interpretive community of which
he is a member, and the unavoidable conditioning worked
on the interpreter by the history of the community up to
that point. All these conditions built into the interpre
ter's standpoint entail that the resulting interpretation
will be culture-bound. See Gadamer, Truth and Method, op.
cit., pp. 241, 360. See also Christopher Norris, Contest
of Faculties. (London: Methuen, 1985), pp. 24-26; and
Jurgen Habermas,

"A Review of Gadamer's Truth and

Method," in Fred Dallmyr, ed., Understanding Social


Inquiry. (Notre Dame, Ind: Indiana University Press,

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242

1977). There is an important element of culture-boundedness in Dworkin's notion of legal interpretation and,
particularly,

in the content of the justifying background

principles of law. See Law's Empire, op. cit., pp. 206208, 413.
179. This is Dworkin's procedure for explaining interpretation
in Law's Empire. The account given here follows Dworkin's
account closely. See Law's Empire, op. cit.., pp. 4 6-4 9
and pp. 68-73.
180. This is the dimension of fit Dworkin noted in his discus
sion of the soundest theory of the settled law. The
underlying principles of courtesy (as of law) must
actually fit with and explain all or most of the practice
as it really is. The dimension of morality refers to the
demand that the underlying principles portray the prac
tice as consistent with the background morality that it
is intended to embody and express. See A Matter of
Principle, op. cit., p. 143.
181. Two points should be mentioned here. First, the model of
interpretation shows how the two levels of analysis,
concept and conception, mutually influence each other.
The concept of courtesy, respect, provides a unifying
point for the whole practice. Respect must be the
unifying point because respect is simply what the whole
practice and all its rules taken together seem to
express. So the concrete rules given in the conception of
courtesy provide support for saying courtesy is a matter

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243

of respect. The concept of respect in turn supports the


claim, given in the conception of courtesy, that courtesy
must contain just the sorts of rules and requirements the
conception says it does. Second, there is a clear historicist thread in Dworkin's view of interpretation. Since
the underlying community convictions about courtesy or
law may change, the content of courtesy or of legal
practice may change in response.
182. Dworkin describes these two levels in the following way,
The contrast between concept and conception
is here a contrast between levels of
abstraction at which the interpretation of
the practice can be studied. At the first
level agreement collects around discrete
ideas that are uncontroversially employed in
all interpretations; at the second the
controversy latent in this abstraction is
identified and taken up.
Law's Empire, op. cit., p. 71.
183. This is a curious argument. It really consists of two
claims. The first, that the cultural community has a
sufficient preinterpretive grasp of the domain of law to
permit interpretation to proceed, begs the question
against the positivist. The second claim is that the
positivist factual standard for law presupposes the
possibility of a purely conceptual description of law one
independent of law's justifying grounds. This begs the
question against Dworkin.
184. Law's Empire, op. cit., p. 92.
185. Law's Empire, op. cit., p. 93.

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244

186. See David Manning, Liberalism. (New York: St. Martin's,


1976), pp. 16-18. It should also be noted that Dworkin is
discussing here the participant's internal view of legal
practice. Such a view is not neutral, but characteris
tically tries to interpret law in light of a substantive
political morality that portrays law as valuable and
justified.
187. The justifying point of law operates differently depend
ing on the internal function of the legal official who
consults it. For legislators, the justifying point is
forward looking, guiding their decisions about what sort
of rules and purposes political morality deems appropri
ate for incorporating into law through legislation. For
adjudicators, it is backward looking, guiding their
discovery of what sort of rules and purposes political
morality does require in specific cases. See Law's
Empire, op. cit., p. 107.
188. Law's

Empire,op. cit., p. 93.

189. Law's

Empire,op. cit.,pp. 95-96.

190. Law's

Empire,op. cit., p. 90.

191. Law's

Empire,op. cit., p. 167.

The notion of integrity

also provides a bridge between the earlier and later


versions of Dworkin's theory. In Taking Rights Seriously.
Dworkin noted that adjudication was bound by the standard
of articulate consistency, the demand that judges reach
decisions that "... can be brought within some comprehen
sive theory of general principles and policies that is

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245

consistent with other decisions also thought right."


(Taking Rights Seriously, op. cit., p. 87.) Integrity is
simply articulate consistency taken out of its context in
adjudication and generalized to include all of legal
practice.
192. Putnam develops this idea as the "moral image of the
world" that is reflected in a given cultural community.
It is "... a picture of how our virtues and ideals hang
together with one another." The Many Faces of Realism.
(La Salle, 111.: Open Court, 1987), p. 51.
193. Aside from the account of equal concern and respect given
in his notion of rights, Dworkin provides little detailed
explanation of equality. Putnam provides a hazy explica
tion of the concept:
There is some aspect of human beings which is
of incomparable moral significance, with
respect to which all human beings are equal,
no matter how unequal they may be in talents,
achievements, social contributions, etc.
See Putnam, op. cit., p. 45. Dworkin's notion of equality
before the law is institutionalized and, thus, is a much
more restricted form of this general equality.
194. This point also connects law as integrity with "taking
rights seriously." Under the integrity interpretation of
law rights are more than mere protected interests. They
are also reflections of the basic moral commitments of
law and thus deserve to be taken seriously. This connects
with law's justifying point as well for on this view the
law is a matter of securing equal concern and respect for

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246

all individuals. This is precisely what rights are


designed to do.
195. For Dworkin, this is given in the notion of coherence.
Since law does have an underlying justifying point and
this point is the standard for recognizing what is to
count as legal, law has a coherent internal structure.
This is so even in cases in which the connection between
this underlying structure and particular legal rules or
decisions is not clear and explicit,

(ex., hard cases).

196. By "past decisions" Dworkin means two things. First, past


decisions are political enactments of legislative
institutions, such as statutes. Past decisions are also
the adjudicative acts of courts embodied in precedent.
The latter are largely clarifications of the former. But
both types of decisions sponsor specific rights and
responsibilities. Moreover, they both have the same
connection to the grounds of law, they are justified as
expressions of the political morality law is meant to
embody and promote.
197. Law's Empire, op. cit., p. 96.
198. Why should legal practitioners take this lofty view of
their task? Because,

for Dworkin, they discover what

their institutional task is by assuming the interpretive


attitude, an attitude which, by definition includes a
shared belief in the value of their practice. This
attitude also includes the desire to view and make of
their practice the best most consistent form of activity

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247

possible. See Law's Empire, op. cit., pp. 96, 193, 219.
See also A Matter of Principle, op. cit., pp. 159-161.
199. See chapter 3, section 2 of this study. Dworkin uses

McLoucrhlin as the centerpiece for his presentation of law


as integrity in Law's Empire. The account given here
follows Dworkin's. See Law's Empire, op. cit., pp. 238259.
200 . Law's Empire, op. cit., pp. 238-239.
201 . Law's Empire, op. cit., pp. 240-241.
202 . Law's Empire, op. cit., p. 243.
203. One of the classic statements of the notion of reasonable
foresight is Justice Cardozo's majority opinion in
Palscrraf v. Long Island Railroad, 248 N.Y. 339 (1928) .
204. Law's Empire,

op. cit.,

p.248.

205. Law's Empire,

op. cit.,

p.249.

206. Law's Empire,

op. cit.,

p.219.

207. These features of

adjudication are prominent in several

cases already

discussed in this study. SeeFortune v.

National Cash

Register Co.. in chapter 1 and

the

Henninasen and Riggs cases in chapter 3.


208. See A Matter of Principle, op. cit., p. 158. On the
account Dworkin gives here, legal interpretation is like
many authors cooperatively writing a chain novel. They
must first focus upon an underlying, unifying theme and
then compose the narrative in ways that will advance the
story as coherently as possible. See also Law's Empire,
op. cit., pp. 238-239.

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?48
.. , , , . <

...

209. In the three works that comprise the focus of this study,
Taking Rights Seriously. A Matter of Principle and Law's
Empire. Dworkin offers no formal definition of "political
morality." What is presented here is an interpretation of
the term based on careful attention to the way Dworkin
has used it in his arguments.
210. Law's Empire, op. cit., p. 97.
211. The legal system is, however, committed to those princi
ples of political morality implied as justifications for
existing law. These principles, unlike the purely per
sonal convictions that comprise popular morality, have
become institutionalized through the successive decisions
that have been taken in legal practice. Dworkin's notion
of political morality is especially apt for a legal
practice like that of the United States, in which the
basic principles of political morality are given in
summary form in the Constitution.
212. The reader will recall the analysis of the decision in
Riggs v. Palmer in chapter 3. In that case, the need to
interpret the existing legal rules in terms of more gen
eral background principles was brought about by two fac
tors. First, the case was novel in that its facts were
unanticipated- Second, the outcome dictated by a noninterpretive, mechanical application of the relevant
rules seemed offensive to the law's clear underlying
purposes.

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249

213. "Rationalize" here means that principles organize a col


lection of rules and precedents into a coherent body
whose elements each refer to a general point or purpose
served by the body as a whole. This sense of "rational
ize" is taken from MacCormick, Legal Reasoning and Legal
Theory, op. cit., pp. 152-155. See also chapter 3,
section 3 of this study. The sort of background principle
envisaged here is exemplified in Fried's principle of
duress in contract law,
Agreements made under conditions of duress
(i.e., when one or the other contractor has
not voluntarily assented to the conditions of
the agreement) are not recognized as binding.
(Adapted from Fried, Contract as Promise, op.
cit., pp 92-93.)
The principle of duress functions as the implicit justi
fication for the body of precedent decisions that cite
duress and involuntariness of assent as grounds for
voiding contracts.
214. Two observations should be made here. First,

it is ex

ceptionally difficult to describe the participant's point


of view in this abstract way. The reason for this is
obvious. The internal view is not content-free but is
defined by specific, substantive conceptions of the val
ues expressed in legal practice, the best justifying
principles for law and a set of underlying convictions
about political morality. Hence, participants in legal
practice also share in a moral image of the law though
they may dispute how best to interpret and implement the

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250

details of this image in specific circumstances. Also,


the Brown case, treated at length in chapter 3 above,
provides a clear example of how this interpretive process
operates. Taking "equal concern and respect" as the
justifying ground of law in this instance, the Supreme
Court was faced with deciding which conception of this
concept

(either "equal access" or "separate but equal")

would best fit with past legal practice regarding equal


protection issues. Moreover, their decision would also
aim toward choosing the conception that best expresses
the value of equality.
215. As Dworkin puts this point in Law's Empire.
According to law as integrity... [d]eciding
whether the law grants M r s . McLoughlin
compensation for her injury, for example,
means deciding whether legal practice is seen
in a better light if we assume the community
has accepted the principle that people in her
position are entitled to compensation, (pp.
225-226)
216. In this connection,

see especially Dworkin's discussion

of community in Law's Empire, op. cit., pp. 188-190.


217. For the right to equal access see Brown v. Board of
Education, cited previously in chapter 3 above. For the
right to counsel see Griffin v. Illinois. 351 U.S. 12, 76
S. Ct. 585, 100 L. Ed. 891

(1956). For the right to

compensation for public seizure of property,

see the U.S.

Constitution, the 5th Amendment's "just compensation"


clause and the 14th Amendment's "equal protection"
clause. These clauses were interpreted to provide re

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251

strictions on government seizure of property, even when


such seizures would result in clear public benefits, in
Chicago B. & O.R.R. v. Chicago. 166 U.S. 226, 241, 17 S.
Ct. 581, 586, 41 L. Ed. 989, 986,

(1897): and Missouri

Pacific Railway v. Nebraska. 164 U.S. 403, 17 S. C t . 130,


41 L. td. 489 (1896).
218. Such rights are "explicit" when they are clearly given in
existing statutes or precedents. They are "implicit," but
no less valid for Dworkin, when they follow from the
background principles such explicit data presuppose as a
justification. See Law's Empire, op. cit., p. 96.
219. Dworkin,

"The Bork Nomination," New York Review of Books..

XXXV (August 13, 1987), p. 10.


220. The questions addressed by interpretive legal practice
will vary in scope. Constitutional interpretation,

for

example, seeks to resolve issues as broad as the extent


of the stated and implied powers of the judiciary (see
Marbury v. Madisont or as narrow as the right of women to
abortions

(see Roe v. Wade) . See Law's Empire, op. cit.,

pp. 368, 386-389.


221. The actual structure of law contains more than simply
very detailed rules on one hand and abstract principles
on the other. The body of law is made up of layers of
rules and their backing principles in succeeding degrees
of generality. The reader will recall the discussion of
"regional" principles, applicable only to specific, nar

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252

row regions of law (such as contract or tort), in chapter


3.
222. Jeffrie G. Murphy and Jules Coleman, The Philosophy of
Law. (Totowa, NJ: Rowman and Allanheld, 1984), p. 17. On
the apparent similarity between Dworkin's view and the
natural law view presented here, two things should be
noted. First, Dworkin's notion of political morality is
context-dependent.

It refers to the basic convictions of

a particular community as expressed in its legal prac


tice. The natural lawyer's notion of morality is more
universal. It refers to a moral order of the world as
such based on purposes or essences fixed in nature. This
sort of morality may or may not coincide with an actual
community's political morality. Moreover, Dworkin acknow
ledges that some legal decisions may be discovered to be
inconsistent with the background justification for law.
Such decisions are not, therefore, invalid but may be
regarded as defective or mistaken. From the point of view
of integrity, legal practice should then attempt to
repair such decisions by bringing them back into line
with the background morality of law. This is accomplished
through subsequent decisions. See Law's Empire, op. cit.,
p. 40.
223. As Hart points out in his Essays on Jurisprudence and
Philosophy, traditional theories approach these defini
tional tasks in various ways. Theories may "... provide
an analysis or definition of law which is a neutral

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253

description or elucidation of usage" or "...they speak of


definition as 'stipulative,''pragmatic, ' or 'construc
tive, ' that is, as designed to provide a scheme or model
for the demarcation or classification of law." Essavs.
op. cit.., p. 90.
224. Law's Empire, op. cit., pp. 13-14.
225. The institutions and procedures must be free from par
tiality and bias as well. See Rawls' formulation of the
principle of fairness in A Theory of Justice. (Cambridge,
MA: Harvard University Press, 1971), p. 108. Also see
Dworkin's remarks on the principle of fairness in Law's
Empire, op. cit., p. 213.
226. Dworkin, Taking Rights Seriously, op. cit., p. 133. In
the context here, Dworkin points out that the principled
requirement that impartial procedures be applied impar
tially dictates outcomes in specific cases as well. In
Miranda v. Arizona. 384 U.S. 436, 86 S. Ct. 1602, 16 L.
Ed. 2d 694

(1966), the Supreme Couirt held that fairness

required, among other things, safeguards z ninst "offi


cial overbearing" that "trades on the weakness of indivi
duals." Specifically,

fair treatment required that

arrested suspects be fully and clearly informed of their


constitutional rights
self-incrimination)

(e.g., to counsel, to immunity from

and be protected from interrogation

methods that violate these rights.


227. Another way of putting this point is that unless a
theorist adopts the interpretive standpoint and views

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254

each element of law (each legal rule and precedent


decision, for example) as an expression of a coherent
scheme of background principles, she will risk distorting
and misdescribing the actual content of the community's
legal practice.
228. Winch, The Idea of a Social Science

(London: Routledge

and Kegan Paul, 1958), p. 89. See also Winch,

"Under

standing a Primitive Society," American Philosophical


Quarterly. 1, 4 (1964), p. 307. Winch's view is similar
to Weber's method of "verstehen," wherein the key to
understanding a form of action or social practice is
grasping the "subjectively intended meaning" expressed by
the actors themselves in the action or practice being
interpreted. See Weber, The Theory of Social and Economic
Organization, trans. by A.M. Henderson
Parsons,

i Talcott

(New York: Oxford University Press, 1947), p.

88 .
229. See Weber, The Theory of Social and Economic
Organization, op. cit., p. 88. For Dworkin, the theorist
of law must view legal practice in essentially the same
way a participant does. The basic difference is that the
theorist must view it in its entirety, from the narrowest
legal rule to the broadest, most abstract principles of
political morality. In this sense, the theorist is Her
cules.

(See chapter 3 above.)

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255

230. Dworkin, A Matter of Principle, op. cit., p. 143. It


should be noted that, for Dworkin, these "dimensions" are
.lexically ordered.
231. H . J .

May, The South African Constitution (Westport, CT:

Greenwood Press. 1970), pp. 152-153.


232. Fried, Contract as Promise, op. cit., p. 4.
233. Fried,

Ibid.

234. Fried, op. cit., p. 16.


235. Duress can take various forms. It can be economic
coercion, as in International Underwater Contractors v.
New England Telephone and Telegraph Company. 8Mass. App.
340, 393 N.E. 2d 968 (1979). Duress can also take the
form of undue influence exerted by one contractor over
another. See Francois v. Francois. 599 F. 2d 1286 (3rd
Cir. 1979) .
236. Len Young Smith, et. a l ., Essentials of Business Law, op.
cit., p. 219.
237.

See Williams v. Walker-Thomas Furniture

Co..350F. 2d

445 (D.C. Cir. 1965).


238.

See chapter 3, section 1 of this study.

239. Fried's contention here is that the community's political


morality is essentially that of liberal individualism.
Hence, its law will reflect the values and principles
associated with liberalism,

(e.g., individual autonomy).

Admittedly, this is a dubious contention. See Contract as


Promise, op. cit., especially pp. 8-17.
240. Law's Empire, op. cit., p. 266.

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256

241. 301 U.S., 57 S. Ct. 615, 81 L. Ed. 893

(1957). Besides

granting legal recognition to collective bargaining The


Wagner (Labor Relations) Act of 1935 also extended
protection to employees against termination for union
organizing activities. This provision conflicts with the
customary principle of "employment at will," whereby
employers are deemed free to terminate employees for
reasons of their own choosing.
242. Unger,

"The Critical Legal Studies Movement," Harvard Law

Review 96 (1983), p. 571.


243. If the available ideological alternatives are genuinely
in conflict, there can be no justifying background prin
ciples

(however abstract they might be) in light of which

the conflict could be resolved. There can be only compro


mise which results in the dilution of both ideological
positions, not their reconciliation. See Duncan Kennedy,
"Form and Substance in Private Law Adjudication." Harvard
Law Review 89 (1976), 1685.
244. 48 111. App. 2d 380, 199 N.E. 2d 263

(1964).

245. Two observations should be made here. First, the desire


to view the legal practice of one's community as morally
and politically justified is a constitutive element of
the internal standpoint. Hence, it is a given for
Dworkin. Second, this attitude provides the motivation
for legal practitioners to practice law as integrity,
since the internal coherence of the legal system is a
crucial element in its continuing justifiability.

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257

246. Law's Empire, op. cit., p. 211.


247. See chapter 3, section 5 of this study.
248. 741 F. 2d 1388

(1984) .

249. Dworkin, Taking Rights Seriously, p. 273.


250. Dworkin calls these "banned categories." The abstract
notion of equality, which requires that individuals be
treated as equals, also requires that social decisions
based on categories like race and gender be prohibited.
See Law's Empire, op. cit., pp. 383-384.
251. Quoted by May, The South /^.frican Constitution, op cit.,
pp. 451-452.
252. The notion of justification employed here is similar to
that proposed by Kurt Baier in "Justification in Eth
nics, " in NOMOS XXVIII: Justification, op. cit., pp. 4-5:
A social practice or institution is justified
if everyone has adequate, perhaps compelling,
reasons to want that social activity... con
tinued and... [everyone] has adequate reason
to regard its rules as authoritative
precepts.
253. It should be noted that Dworkin uses the notion of
justification in two ways. In one, a political sense,
coercion is justified if past political decisions

(e.g.,

legislation, constitutional provisions) warrant such


coercion. The other sense is closer to Baier's sense, for
it refers directly to the justification for state
coercion in the political morality of the community.
254. Law's Empire, op. cit., pp. 102-103. The argument Dworkin
gives here concerns Nazi law but its central claim about

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258

the justifiability of a legal system is applicable to


South African law as well.
255. Law's Empire, op. cit., p. 104.
256. Law's Empire, op. cit., p. 107.
257. Dworkin admits, but does not develop,

just this point.

Even if one attempts to remove ideological biases by


making one's conception of law more abstract and less
context-dependent,
there is no reason to expect even a very
abstract conception to fit foreign legal
systems developed in and reflecting political
ideologies of a sharply different character.
Law's Empire, op. cit., pp. 102-103.
One could imagine a Soviet legal theorist impugning the
background justification of American legal practice
because this practice rests upon a principle of equal
concern and respect drawn from bourgeois individualism.
258. The reader may wish to refer to the list of the basic
propositions of Dworkin's legal theory given in chapter
3. Also, j.ecall the sketch of the core argument of
Dworkin's theory given in chapter 4.
259. On this view, the due process clause of the 5th Amendment
to the U.S. Constitution is not an arbitrary addendum to
basic American law but a basic expression of the
community's underlying commitment to equal treatment and
fairness.

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259

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This dissertation has been approved by the following


committee:
_____ Chairperson

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