Zreik - Ronald Dworkin and Duncan Kennedy. Two Views of Interpretation (2019)

Canadian Journal of Law & Jurisprudence XXXII No.
1 February 2019, 195-234 195

© Canadian Journal of Law & Jurisprudence 2019 doi: 10.1017/cjlj.2019.9
Ronald Dworkin and Duncan Kennedy:

Two Views of Interpretation
Raef Zreik
Introduction
In many ways, Duncan Kennedy and Ronald Dworkin represent two opposite
poles in American legal theory at the end of the last century. Their opposition has
many different faces and phases: Ronald Dworkin was taken to be a champion
of a theory of rights and the title of his paper—which became the title of his
book—“Taking Rights Seriously”1, has come to epitomize an attitude towards
the issue of rights; even the format of the title has been borrowed widely by other
writers.2 Dworkin is also associated with a certain theory of interpretation which
holds that even in hard cases, the judges have limited discretion at most,3 while
on other occasions he seemed—at the very least—to be advocating that we have
a right answer to every legal question we might reasonably encounter.4 At other
times, Dworkin appears almost to be is claiming that there is truth and objectivity
in legal reasoning5, and that we can identify and differentiate between better and
worse interpretations to the point of reaching the right interpretation to the ques-
tion at hand.6 In many ways, Dworkin’s work on interpretation is a reconstructive
project7, seeking to rebuild after the deadly skeptical assault by legal realists in
America; some might even call it a normative idealist project that seeks to view
law in its own best light.8 Furthermore, Dworkin understands law as a whole9,
Thanks to Shai Lavie, Roy Krietner, Lewis Sargentich, Alon Harel, and mostly to Talha Syed who
corrected some mistakes and encouraged me to publish.
1. Ronald Dworkin, Taking Rights Seriously (Harvard University Press, 1978).
2. See other titles that have the structure “Taking (something) Seriously”: Galen Joseph, “Taking
Race Seriously: Whiteness in Argentina’s National and Transnational Imaginary” (2000) 7:3
Identities; Julie Archambault, “Taking Love Seriously in Human-Plant Relations Rights in
Mozambique” (2016) 31:2 Cultural Anthropology.
3. See Ronald Dworkin, “Hard Cases” in R Dworkin, supra note 1 at 81-130 [Dworkin, “Hard
Cases”].
4. Ronald Dworkin, “Can Rights Be Controversial?” in R Dworkin, supra note 1 at 279-90
[Dworkin, “Can Rights Be”].
5. Ronald Dworkin, “On Interpretation and Objectivity” in R Dworkin, ed, A Matter of Principle
(Harvard University Press, 1985) at 167-77 [Dworkin, “Interpretation”].
6. Ronald Dworkin, “Is There Really No Right Answer?” in R Dworkin, supra note 5 at 120-45
[Dworkin, “No Right Answer”].
7. Though Dworkin uses the term “constructive interpretation” in his book Law’s Empire,
(Harvard University Press, 1986) at 52 [Dworkin, Law’s Empire]. Still this is not the reason to
call him reconstructive. In the history of legal thought Dworkin would continue to be consid-
ered as pursuing a reconstructive project (responding to the Realist), even if he had not used
the term ‘constructive interpretation’. (Thanks to Talha Syed for this clarification.)
8. See, for example, the writings of Pierre Schlag, who views Dworkin as the paradigmatic advo-
cate of what he calls “normative legal thought.” For Schlag, the aim of normative legal thought
is to develop a norm that is “complete, self-sufficient, discrete, separable, trans-situational, non-
contradictory, and non-paradoxical.” See Pierre Schlag, “Normativity and the Politics of Form”
in P Schlag, S Smith & P Campos, eds, Against the Law (Duke University Press, 1996) 29 at 39.
9. See Ronald Dworkin, “Keynote Address” in François De Bois, ed, The Practice of Integrity:
Reflections on Ronald Dworkin and South African Law (Juta, 2004) at 14 [Dworkin, “Keynote
Address”].
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196 Zreik
and develops what he calls “the integrity of law”10, as if law was speaking to us
in one unified voice. Dworkin believes in the possibility of drawing a distinction
between what is law and what lies outside law. He does this by distinguishing
between principles, which are inherent to the law and constitute part of it and
which are the basis of rights and aims that society can pursue as a whole in the
form of ‘policy’. Thus, while arguments over ‘principles’ lie within the law and
are legitimate arguments to deploy in court, ‘policy’ issues do not belong to the
empire of law: they are external to it and belong to what we may call the domain
of politics.11 In general, Dworkin holds what might appear a non-tragic image of
values. He holds that if we think hard and deep enough, we can come to a certain
settlement between competing values, which is mandated, required and possible
in many ways. Freedom and justice may conflict, and we may experience a sense
of loss by preferring one over the other, but if we get it ‘right’ then the conflict
will more apparent than real, and nobody is, in fact, wronged. This is true within
the legal domain, though not limited to it, but is also true to morality at large.12
When Dworkin wants to summarize his take on law and its role he only uses
strongly affirmative terms: law’s attitude is constructive: it aims, in the interpre-
tive spirit, to lay principle over practice to show the best route to a better future
keeping the right faith with the past. It is, finally, a fraternal attitude”13.
It might seem that Kennedy disagrees with Dworkin in every conceivable
respect. Specifically, Kennedy appears to depart from Dworkin on each of the
following: on the nature of law and legal reasoning, on the role of the rights
10. See, Dworkin, Law’s Empire, supra note 7 at 225-75.

11. The distinction between policy and principles went through different phases, so while at one
point Dworkin put both of them together in one line against rules, he later had to distinguish
between them; thus, after putting them together he had to separate them. See Ronald Dworkin,
“The Model of Rules I” in R Dworkin, supra note 1 at 14-45. It is in this essay, “The Model
of Rules I”, where he argues that a principle is “a standard that is to be observed, not because
it will advance or secure an economic or political or social situation deemed desirable, but be-
cause it is a requirement of justice or fairness or some other dimension of morality […].” Ibid
at 22. But the distinction is further elaborated and developed in his essay “Hard Cases” where
he argues that “[a]rguments of principle are arguments intended to establish an individual
right; arguments of policy are arguments intended to establish a collective goal. Principles
are propositions that describe rights; policies are propositions that describe goals.” Dworkin,
“Hard Cases”, supra note 3 at 90. In Dworkin, Law’s Empire, supra note 7, the distinction
between principles and policy is watered down.
12. This is a theme recurrent in Dworkin writings, but which appears mainly in his essays “Hard
Cases”, supra note 3, and “Can Rights be Controversial?”, supra note 4, both of which were
republished in Taking Rights Seriously, supra note 1. But Dworkin holds this position outside
law as well and this is one of his critiques of philosopher like Isaiah Berlin who has a more
tragic sense of conflicting values. See Ronald Dworkin, “Do Liberal Values Conflict?” in M
Lilla, R Dworkin & Robert Silvers, eds, The Legacy of Isaiah Berlin (New York Review of
Books, 2001) 73 at 90: “Perhaps, after all, the most attractive conceptions of leading liberal
values do hang together in the right way. We haven’t yet been given reason to abandon that
hope.” Dworkin warns against “any lazy conclusion that political values must conflict” and
for him “the supposed conflict is an illusion, because on the best understanding of the two
virtues, they are complementary.” See Ronald Dworkin, “Do Values Conflict? A Hedgehog’s
Approach” (2001) 43 Ariz L Rev 251 at 259. Dworkin develops this position into a fully-
fledged theory in his later book, Justice for Hedgehogs (Harvard University Press, 2011)
[Dworkin, Justice for Hedgehogs]. For a critique of Dworkin’s position on the matter see,
generally, Bernard Williams, “Liberalism and Loss” in M Lilla, R Dworkin & Robert Silvers,
above in this footnote at 91-103 (defense of Isaiah Berlin’s concept of values pluralism).
13. These are almost the last words of Dworkin’s Law’s Empire, supra note 7 at 413.
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Ronald Dworkin and Duncan Kennedy 197
discourse, on the relation of law to what is outside law (law and politics/ideol-
ogy). The two scholars thus seem differ regarding the overall role of law in life
and society.
Kennedy would also appear to be highly skeptical of any theory that argues for
the objectivity of law and legal reasoning or entertains the possibility of reach-
ing the right answer to a given question. Instead, he would insist on the open
nature and manipulability of legal materials14, or what in the literature has been
called “radical indeterminacy”15. While Dworkin might think in terms of the ob-
jective truth that one discovers in the legal materials—however Herculean and
complex the search may be—Kennedy thinks that rights reasoning is ideological
and instrumental,16and what appears as a discovery in the Dworkinian model
appears as almost an invention by Kennedy’s lights17. While Dworkin, as seen
above, thinks of law as a whole, as integral and speaking in one coherent voice,
Kennedy thinks of the law as a hodge-podge, an endless patchwork of incoher-
ent materials,18 full of conflicts and internal contradictions that no coherence can
hide or overcome.19

In addition to their disagreement regarding the nature of legal reasoning and
interpretation, they also differ on the role of rights discourse, of which Kennedy
is very critical and skeptical.20 They also seem to differ on the nature of the
separation between law and politics, where Kennedy would want to insist on the
political/ideological nature of adjudication.21 While Dworkin thinks of the lofty
14. Duncan Kennedy’s take on the defeasible nature of legal arguments can be found, among other
places, in his paper “Semiotic of Legal Argument” in D Kennedy, ed, Legal Reasoning: Collected
Essays (Davies Group, 2008) [Kennedy, “Semiotics”], where he seems to be trying to show that
“[a]rgument bites come in opposed pairs”. Ibid at 90. Kennedy argued that “[r]ights discourse is
internally inconsistent, vacuous or circular”. See Duncan Kennedy, “Legal Education as Training
for Hierarchy” in David Kairys, ed, The Politics of Law: A Progressive Critique (Basic Books,
1998) at 62 [Kennedy, “Legal Education”].
15. Kennedy may have used the term, but I have been unable to find a clear reference to it; nev-
ertheless, the term does reflect the way his approach is perceived. See, for example, Andrew
Altman, Critical Legal Studies—A Liberal Critique (Princeton University Press, 1990).
Altman characterizes both Critical Legal Studies (CLS) and Kennedy as having what he calls
“radical indeterminacy”. Ibid at 15, 90-98. For a similar attack that interprets CLS and the
work of Kennedy as “radical indeterminacy”, see Lawrence B Solum, “On the Indeterminacy
Crisis: Critiquing Critical Dogma” (1987) 54:2 U Chicago L Rev at 462.
16. As Kennedy argues, “[t]o many participants in American legal culture, rights reasoning seems
no more plausible exclusive of ideological influence than more apparently open-ended moral
or instrumental argument.” Duncan Kennedy, A Critique of Adjudication (Harvard University
Press, 1998) at 125 [Kennedy, Critique of Adjudication].
17. Kennedy argues that “[l]egal thought can generate plausible rights justifications for almost any
result.” See Kennedy, “Legal Education“, supra note 14 at 62.
18. For Kennedy, “[d]octrine is not consistent or coherent. The outcomes of these conflicts form a
patchwork, rather than following straight lines.” Duncan Kennedy, “The Political Significance
of the Structure of the Law School Curriculum” (1983) 14:1 Seton Hall L Rev 1 at 15.
19. For the general theme of internal contradictions in law, see Duncan Kennedy, “The Structure
of Blackstone‘s Commentary” (1979) 28:2 Buffalo L Rev 205 [Kennedy, “Blackstone
Commentary”].
20. See Duncan Kennedy’s take on rights in Critique of Adjudication, supra note 16 at 315-38.
Kennedy is not the only one in the CLS who is skeptical of rights discourse. See also Morton
Horowitz, “Rights” (1988) 23:2 Harvard Civil Right-Civil Liberties L Rev at 393-40; Mark
Tushnet, “A Critique of Rights: An Essay on Rights” (1984) 62:8 Tex L Rev 1363.
21. For the nature of ideological work of adjudication according to Kennedy, see Critique of
Adjudication, supra note 16 at 157-79.
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198 Zreik
ideals of law, Kennedy thinks of law mainly as “an instrument of apology—an

attempt to mystify both the dominators and the dominated”;22 so law is rather an
attempt to put a smooth face to a harsh, messy, and ugly reality. Additionally,
while Dworkin embraces a vision that champions the role of reason and its abil-
ity to adjudicate between conflicting values, and as such represents a straight-
forward Enlightenment tradition, Kennedy embraces an opposing thesis of the
“death of reason” narrative, a tradition spanning from Kierkegaard to Weber.23

If this the case, what do the two have in common?
This, in truth, is the aim of this paper: to put the two legal theorists alongside
each other, rather than in opposition. This does not mean that I want to eliminate
the differences; far from it. But I do wish to offer a few interpretations that would
destabilize this image of unrelenting opposition. One way to do this is through a
closer reading aimed at softening what appear to be rigid, harshly opposing posi-
tions held by each, and thus to show that the gap between their positions is not
wide as one might imagine. For example: Kennedy is not appealing to a degree
of indeterminacy that is as absolute as might appear and Dworkin is not advo-
cating an apparently radical image of determinacy. This would be one strategy.
Another strategy would be to look for common themes, presuppositions, images
of law, and sensibilities that both share either explicitly or implicitly. While mak-
ing the comparison in this paper, I want to focus exactly on the arguments that
are attributed to them but they themselves deny they are making.
It is probably more appropriate to begin with the second strategy, showing the
common themes, and then to move on to what distinguishes them, showing the
gap but narrowing it at the same time. In the last section of this paper I want to go
back to articulate what the real differences between Kennedy and Dworkin are,
after I have “refined” their positions. In doing so, I will examine the value of this
exercise and ask what it says about the nature of legal theory today: legal theory
after Legal Realism and after Critique.
In this regard, the paper could be read as part of an attempt to think the
nature and status of contemporary legal theory.24 Legal theory today seems to
be in search of direction; Samuel Moyn has characterized the status of legal
theory today as “legal theory among the ruins”25 where “there is no successful
Zeitgeist now”,26 while others have noted that legal theory turned out to be “writ
22. See Kennedy, “Blackstone Commentary”, supra note 19 at 210. Kennedy adds that this mys-
tification is made by “convincing them of the naturalness, the freedom, and the rationality of a
condition of bondage” (ibid).
23. Kennedy writes: “The critical project within Liberalism itself has led us to lose any hope of an
outside to which we could resort in order to have better way of doing official justice through
reason. Reason is Felo Da se, dead by its own hand” in Duncan Kennedy, The Rise and Fall of
Classical Legal Thought (Beard Books, 2006) at xxv [Kennedy, Rise and Fall]. For more on the
death of reason narrative, see James Hackney, Legal Intellectuals in Conversation: Reflections
on the Construction of Contemporary American Legal Theory (New York University Press,
2012) at 32-33 [Hackney, Legal Intellectuals].
24. See Justin Desautels-Stein & Christopher Tomlins, eds, Searching for Contemporary Legal
Thought (Cambridge University Press, 2017).
25. Samuel Moyn, “Legal Theory Among the Ruins” in Justin Desautels-Stein & Christopher
Tomlins, supra note 24 at 99-113.
26. Moyn, supra note 25 at 103.
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small”27 avoiding generalizations or abstractions. Moyn has an explanation for

this situation: “Legal theory is in ruins partly because, in its leftist sector, its
partisans concurred as infighters in their project to unsettle, but not as architects
in their plans to build anew.”28 This paper could be read as a prelude to a re-
thinking of current legal theory today, aiming to map where we have left before
we move on to any exercise in reconstruction.
1. Common themes and sensibilities:
1.1 The Thickness of Law—Or the politico-moral Stakes of Law
This common theme will become clearer when we juxtapose Kennedy and
Dworkin with other thinkers associated with formalism. Clearly, formalism
could be considered in many different ways and in many forms29, but here I want
to focus on formalism as that theory of law which aims to draw a sharp distinc-
tion between rules and the reasons for the rules: the rules being internal to law
and the reasons external to it. The reasons may well be important as historical
facts that can explain and justify the rules, but once the rules are in place, they
are all we have: the rules become in themselves reasons to enforce themselves,
and we need not resort to the reasons that lie behind them. This is a thin image
of law that understands the legal domain as a bundle of rules, and sees a threat
in treating the rules as being dependent or parasitic on external reasons.30 Now,
this image could be associated with classical formalists, but it could also be as-
cribed—paradoxically—to legal realists, because the realists turn their attention
to other disciplines, outside the law, when they think that rules run out and can
never dictate a solution to the legal question at hand.31 But they reach too quickly
for what they see as an extra-legal domain to “supplement” the legal, and bring
the case to closure. In this sense, there might be more affinity between Legal
Realists and H.L.A. Hart, as both “jump” to extra-legal materials to supplement
27. Adrian Vermeule, Mechanisms of Democracy: Institutional Design Writ Small (Oxford
University Press, 2007) at 2.
28. Moyn, supra note 25 at 111. Moyn in this regard concurs with Roberto Unger’s view that the
task of Critical Legal Studies should move from critique to reconstruction. Unger advocated
this mission as early as 1985 in his book, The Critical Legal Studies Movement and recently
updated his argument in the new version of the book: see Robert Unger, The Critical Legal
Studies Movement: Another Time, A Greater Task (Verso, 2015).
29. Here is a just a short list of the different takes on formalism: See, Duncan Kennedy, “Legal
Formalism” in N Smelser & P Baltes, eds, Encyclopedia of Social & Behavioral Sciences, vol
13 (Elsevier, 2001) 8634; Robert Summers, Form and Function in Legal Theory, A General
Study (Cambridge University Press, 2006); Frederick Schauer, “Formalism” (1988) 97:4 Yale
LJ at 509; Ernest Weinrib, “Formalism: On the Immanent Rationality of Law” (1988) 97:6
Yale LJ 949.
30. One might think that this picture belongs to history and that there are few who still hold this
view. But see Antony Scalia on formalism: “The Rule of Law as a Law of Rules” (1989) 56:4
Chicago L Rev 1175. In one version of formalism the text is independent from the purposes, in
another it is rules that are independent of reasons for the rules.
31. For a classical formulation about the contradictory nature of rules see Karl N Llewellyn,
“Some Realism about Realism Responding to Dean Pound” (1931) 44:8 Harv L Rev 1222 at
1252.
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the law whenever the rules run out. There is obviously a vast difference between
the realists and Hart, but the difference lies in the fact that a realist thinks that
rules run out very often, whereas Hart thinks that most cases are solved by the
rules, because they lie at the core, not in the penumbra of the rule.32

Against these kinds of thinner takes on law, Kennedy and Dworkin think of
law as a thick domain: by this I mean that law and legal reasoning, includes, al-
lows and incorporates moral and political principles and ideas and ideals. Both
Kennedy and Dworkin agree there is more to law than just a bundle of rules.
Jurisprudence can’t only be a matter of conceptual analysis; by definition it has a
normative dimension to it.33

In this regard, one can see Dworkin as precursor of Kennedy, bizarre though
it may seem. Dworkin’s extension of the law to include moral and political prin-
ciples was made early on, already in his early papers on the model of Rules in
the late 1960s. Equally, Kennedy’s insistence of the political stakes in law could
be viewed as a radicalization not only of the Legal Realist tradition, but as a
radicalization of Dworkin himself.34 I say it is a radicalization of Dworkin for
the obvious reason that Kennedy never stops at the level of principles and he
thinks, as we know, that law is penetrated all the way up by policy, politics and
32. See, for example, HLA Hart, “American Jurisprudence Through English Eyes: The Nightmare
and the Noble Dream” (1977) 11:5 Georgia L Rev 969. Hart concedes the case for the real-
ist that there are cases where rules run out, but he thinks that those are just few and that their
significance is exaggerate or overstated, while on the other hand Dworkin underestimates the
crisis and believes that law can too often—if not always—solve the problem at hand. See HLA
Hart, The Concept of Law (Oxford University Press, 2012) at 124-51.
33. Ronald Dworkin, “Introduction” in R Dworkin, supra note 1 at 1. This is a theme that cuts
through Dworkin‘s work from beginning to end. Early on in his introduction to his book
Taking Rights Seriously, he writes right at the first page: “A general theory must be normative
as well conceptual.” Ibid at i. Later in the same book he continues: “[b]ut if jurisprudence is to
succeed it must expose these issues and attack them as issues of moral theory” (ibid at 7) and
“[i]t remains for jurisprudence to construct the bridges between legal and moral theory (that
supports that claim).” Ibid at 13. “If a theory of law is to provide a basis for judicial duty, then
the principles it sets out must try to justify the settled rules by identifying the political or moral
concerns and traditions of the community which, in the opinion of the lawyer whose theory it
is, do in fact support the rules. This process of justification must carry the lawyer very deep
into political and moral theory.” Ronald Dworkin, “Model of Rules II” in R Dworkin, supra
note 1 at 67 [Dworkin, “Model of Rules II]. While writing on the nature of the approach in
Constitutional law he advances a theory that this “[…] argues for a fusion of constitutional
law and moral theory, a connection that, incredibly, has yet to take place.” Ronald Dworkin,
“Constitutional Cases” in R Dworkin, supra note 1 at 149. Almost fifty years later he writes:
“you see at once that jurisprudence or legal theory cannot be seen as an isolated discipline
to be pursued, let’s say, in law schools independently from the rest of the university…then
Jurisprudence cannot be seen as distinct from political philosophy or theory more generally….
and my claim over the years has been that the separation cannot succeed and if we try to do it
we impoverish both sides.” Dworkin, “Keynote Address”, supra note 9 at 4.
34. See Kennedy, Rise and Fall, supra note 23 at 27. For Kennedy, “legal Realism did to legal
doctrine what we did to policy analysis.” Ibid. In this sense, he is a radicalization of the Realist
for he views ideology and policy analysis itself as underdetermined. “Ideology can be highly
influential. However, ideology is also full of gaps, conflict and ambiguities”. Ibid at 27. On the
other hand, he argues that “[…] Dworkin appears as the heir and—in his own attack on seman-
tic view of law, on originals, and passivism—as the developer of the legal realists.” Kennedy,
Critique of Adjudication, supra note 16 at 121. The combination of these two statements al-
lows us to read Legal Realism, Dworkin and Duncan along a continuous line, and Kennedy is
a radicalization of the former.
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ideology.35 In a figurative way, we can argue that if Dworkin has managed to

question the line between rules and principles by viewing the issues of moral/
political principles as being part of law. This bears some affinity with Kennedy’s
questioning and blurs the line that Dworkin struggles to maintain: the line be-
tween principle and policy, between what is inside the law and what lies outside
the law’s empire.36

There is another paradoxical way in which Kennedy radicalizes Dworkin: By
questioning the line separating law and ‘non-law’ (ideology, politics, religion)
Kennedy extends and expands law’s empire even more than Dworkin. For if we
blur the dividing line between law and politics and question its sharpness and its
impenetrability, the penetration can work both ways: not only can what is ‘out-
side’ the law penetrate law, but rather, law can penetrate what seems to be outside
law; while Kennedy thinks that it is politics and ideology all the way down, it is
law all the way up: Politics shape law, but politics are shaped by law as well.37
1.2 The Always-already Approach
When Dworkin discusses the role of moral/political principles in Law’s Empire38

he gives the example of the case of Elmer39 (among other examples that he of-
fers). This is the famous case where Elmer E. Palmer murdered his grandfa-
ther, knowing that his grandfather wrote a will, bequeathing him all his property.
Dworkin gives this example in order to try to answer a much more profound
question related to the question about disagreement in law: what do judges dis-
agree about when they disagree?40 Dworkin thinks that answering this question
can give us an insight into the nature of law. He argues that when judges disagree
about law they do not disagree about a fact, in the same way that we might dis-
agree about the number of cars parked in the parking lot. Rather, disagreements
about the law are always disagreements about how the case should be decided,
and who has the right to win the case. In this sense, the disagreement is not just
about fact, but it has always an aspect of ‘ought’ to it, as if the question of what
the law is and how we should decide according to it (as judges) are inseparable
questions. But here is the point that Dworkin wants to emphasize: he never tires
of arguing that what judges are disagreeing about while debating the case, for
and against, are disagreements within the law. It is not the case that the judge
35. “I argue that ideology influences adjudication, by structuring legal discourse and through stra-
tegic choice in interpretation”, ibid at 19.
36. “The first modification is to get rid of the idea that there is an objective boundary line we can
draw between questions of law that have correct determinate answers and questions that can
be resolved only through ideological choice.” Ibid.
37. “The economy was the ‘base’ and ideology was ‘superstructure’. Now people often think that
we are saying that ideology is the base, and law is superstructure. NO…We do not believe that
ideology is the base. We believe that things mutually affect each other and that each level has
its resistance, its impenetrability, its opacity, none is simply a transparent reflection or product
of another level.” Hackney, Legal Intellectuals, supra note 23 at 39. See also Karl Klare, “The
Politics of Duncan Kennedy’s Critique” (2001) 22:3-4 Cardozo L Rev 1073.
38. See Dworkin, Law’s Empire, supra note 7 at 15.
39. Riggs v Palmer, 115 NY 506 (1889).
40. See Dworkin, Law’s Empire, supra note 7 at 3.
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goes through two distinct stages and says to himself: “I know that the law does
not prohibit the grandson to inherit his grandfather and legally speaking he is en-
titled, but this is an unacceptable outcome morally, and for that reason he should
not be able to inherit”. Dworkin argues that this is neither the way that judges
disagree, nor the way they argue; rather, they think and write their decision as
if the grandson is not entitled legally to inherit from his grandfather.41 Dworkin
does not accept the two stages picture, in which the judge first reaches a legal
answer allowing the grandson to inherit, and only then uses his moral principles
to change this initial result. There are no separate stages in the legal reasoning,
and morality is not being enforced from without on the legal materials: the moral
principles are there from the first stage of legal reasoning, and if they exercise
any constraints it is a constraint from within, not from without, for principles are
not external to the practice of legal reasoning. Legal reasoning can’t make a first
move without resorting to principles.
I think that this sense of the “always already”42 is very apparent in Kennedy’s
writings. This is not to argue that Dworkin had influenced Kennedy in this mode
of reasoning, and in fact it can be the opposite, or may be both had internalized
Heidegger and Gadamar’s take on interpretation. But Kennedy never tires of
arguing in similar mode when it comes to ideology/politics: Kennedy’s argu-
ment in this regard is that ideology/politics is internal to the practice of legal
reasoning. Of course, Kennedy never argues that ideology determines the result
of the process of legal reasoning, but on the other hand it is not external to it.
As he put it only recently, “political ideology is no more an outside, external
determinant, than it’s an excluded irrelevance.”43 When judges sit down to write
their decisions there is no reason whatsoever to think that they do not have
an interest—ideological, political, sympathy, religious or other interest—in the
outcome of the case. All of these are ‘always already’ present in the process,
though Kennedy never argues that they ‘determine’ the result of the case. I think
that this ‘thrownness’ in respect of the world as a totality is a sensibility that
both thinkers share.
1.3 Theorist Across the Board
Here I want to offer an argument of three layers, which, when all put together,
establish the image of Dworkin and Kennedy as theorists across the board.
The first layer relates to their theory of interpretation, where both attenu-
ate the difference between hard cases and easy cases, thus holding one theory
41. “The dispute about Elmer was not about whether judges should follow the law or adjust it in
the interests of justice…It was a dispute about what the law was.” Dworkin, Law’s Empire,
supra note 7 at 20.
42. My use of the term “always already” clearly has some reference to Heidegger’s use of the
term. Heidegger refers to the idea that in the disclosedness of the world, beings are discovered,
and the “being of these beings is always already understood in a certain way, although not ap-
propriately conceived ontologically.” Martin Heidegger, Being and Time, edited and translated
by Joan Stambaugh (State University of New York Press, 1996) at 186.
43. See Duncan Kennedy, “Introduction” in D Kennedy, supra note 14 at 4 [Kennedy, “Introduction”].
09_Zreik_40.indd 202 1/16/19 12:43 PM

of interpretation (Unitarian Theory). Second, both are legal theorists that have
some insights about law that they apply to spheres outside law, morality and
society (Relational Theory). The third layer relates to their shared belief that
their position within law and outside law (determinacy/indeterminacy accord-
ingly) is crucial for the question of the legitimacy of the legal and social order
(Legitimacy Theory).
The first point that they share—is the way that both Dworkin and Kennedy
view law and legal interpretation as totality.44 By this I mean that both have a the-
ory of interpretation for hard cases and easy cases alike: in fact they do not make
a clear distinction between what might be called “easy cases” and another theory
for “hard cases”, because what is “easy” and what is “hard” is not something
given beforehand at the surface of the text, rather something that emerges at the
end of a process of struggling with the legal materials. In this regard they both
reject what might be thought of as the two-stage theory of interpretation: “first
we look at the text, if it is clear then there is no need for interpretation, interpreta-
tion enters the stage only if the text is not clear”.45 I choose to call this a Unified
Theory of interpretation, which reflects a certain manner and disposition in ap-
proaching legal materials as a totality. Furthermore, one can view Dworkin’s and
Kennedy’s writings over several decades as aiming toward one major argument
(or family of arguments). When put together, each body of writing establishes a
world view. So, while they occupy opposing poles in their analysis and supply
opposing answers, they are nevertheless in many ways mirror images of each
other. They give different answers to similar questions.
As to the second layer of Relation Theory: while both are first and foremost
legal theorists, they are not only legal theorists. I do not mean merely that they
deal with issues other than those of legal theory; there are many legal theorists
who deal with issues proper to philosophy, economics, linguistics, etc. What
matters is that their world view haunts their legal scholarship, and the same sen-
sibility that guides their legal scholarship guides their social and political phi-
losophy as well. Moreover, both start first as legal theorists, tinkering with ques-
tions internal to legal interpretation (in the case of Kennedy, doctrinal questions
of tort and contract law), but end up with theories that extend beyond the realm
of law to social and political theory. To put it more metaphorically, their insights
regarding the nature of law and legal interpretation emigrate from law, all the
way to other fields of social and political theory (coherence and non-conflict in
the case of Dworkin, and incoherence and conflict in the case of Kennedy). This
suggests a different movement to the usual one,—in which philosophy, econom-
ics and political theory instruct and guide legal analysis—towards a new dynam-
ic whereby legal theory has something to offer to other disciplines: here legal
theory is not on the receptive, but on the disseminating side. This is clearly the
case with Kennedy, and less so with Dworkin. Yet, if we follow Dworkin’s early
writings on truth and objectivity in law, as opposed to his later writings about
44. For further elaboration see below at 14-15 accompanying footnote 114 in particular.
45. See, for example, Hart, The Concept of Law, supra note 32 at 124 or Dennis Patterson, Law
and Truth (Oxford University Press, 1996) at 95.
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204 Zreik
conflict between values, we will be able to discern how the model of Hercules
has been generalized. Hercules starts as a judge, but he becomes the paradigm
of the philosopher in Dworkin’s later writing.46 When Dworkin argues that the
idea that values conflict is an “illusion”, he is not making this argument from a
position internal to law, but rather from within political philosophy in general.
Kennedy is far more aware of this movement in his work. First, he spends
time working on legal materials. He shows the internal incoherence and conflict
within legal materials, showing what he calls the false necessity and appearance
of necessity of the legal materials, but he then proceeds to look at the larger world
of society, politics and ideology and deploys the same tools he acquired within
law in order to be able to say something about the shape of ideology, politics and
society. Kennedy is clearly also inspired in his project by non-lawyers, think-
ers like Feuerbach, Marx and Sartre,47 and he clearly appropriates them to gain
insights into legal analysis. But Kennedy develops and ‘exports’ these insights,
after they had been sharpened, to social theory itself, and offers critiques of these
social theorists and others. Thus, the critique of indeterminacy advances to social
and political theory.48 By contrast, early Dworkin (of Hard Cases) thinks of the
right answer as something emerging from inside law and legal principles, but the
late Dworkin of Law’s Empire, thinks that the right answer comes rather from
ideas not limited only to law, but inclusive of political principles of community
in general and ideas of integrity that personify law, speak in univocal voice and
establish community and fraternity.49

This creates a picture in which both Kennedy and Dworkin maintain similar
focal points and pose similar questions regarding the nature of law, and with re-
gard to philosophy, politics and society. The first of these, which we have already
alluded to, is the relation of law to these other fields.50 Is there a necessary rela-
tion between our views of the one in relation to the other? Is there a necessary
relation between the determinacy/objectivity of law and determinacy/objectivity
of moral values in general?
On the first question the answer of both Dworkin and Kennedy is in the posi-
tive. There is a relation between objectivity/non-objectivity inside the law and
46. I refer mainly to his later writings such as his papers “Do Liberal Values Conflict?”, supra note
12, “Do Values Conflict? A Hedgehogs Approach”, “Keynote Address”, supra note 9, and his
book Justice for Hedgehogs, supra note 12.
47. See Kennedy, Critique of Adjudication, supra note 16 at 18-20, 199-201.
48. Duncan Kennedy, “A Left/Phenomenological Alternative to the Hart/Kelsen Theory of Legal
Interpretation” in R Dworkin, supra note 14 at 168; Kennedy, “Phenomenological Alternative”.
(“Ideologies are indeterminate in just the way that legal order is.”)
49. Some interpreters see an important change between early Dworkin and late Dworkin; in this
regard, see Jules Coleman & Brian Leiter, “Determinacy, Objectivity, and Authority” (1993)
142:2 U Pa L Rev at 214. Others stress the continuity between early and late Dworkin. See,
for example, Stephen Gust, “How to Criticize Ronald Dworkin’s Theory of Law” (2009)
69:2 Analysis 352 at 356; Jeremy Waldron, “Did Dworkin Ever Answer the Crits?” in Scott
Hershovitz, ed, Exploring Law’s Empire: The Jurisprudence of Ronald Dworkin (Oxford
University Press, 2006) at 161.
50. In this regard both share a Hegelian impulse. According to this, the ‘whole’ and its elements
reside in the ‘part’ such that the law as a field and doctrine contains within itself that which is
otherwise discovered through the study of the whole of being, philosophy, religion etc., with
its contradiction/non-contradiction, coherence/incoherence.
09_Zreik_40.indd 204 1/16/19 12:43 PM

outside it—in morality/politics.51 This can be clearly distinguished from a posi-

tivist approach that would make a disjunction between law and morality and
would not render the objectivity of the one being dependent on the other.52

The third and last point (Legitimacy Theory) is related to the consequences
of the different and opposing answers that both theorists give to the questions of
determinacy/objectivity of law and morals (determinacy and objectivity clear-
ly are not one). Both of them do think that this determinacy is rather crucial for
law’s enterprise and its legitimacy: the lack of objective determinate answers
threatens the legitimacy of law.53 The difference is that Dworkin thinks we can
have a right answer while Kennedy thinks we can’t, but they do agree on the
importance of this relation between legitimacy and determinacy. Their point of
view differs from other theorists who do not put much weight on determinacy
in the first place. H.L.A. Hart54, Coleman and Leiter55, Ernest Weinrib56, Ken
Kress57 are just few of the many that could be mentioned. These writers con-
51. For such a reading of Dworkin, see Patterson, supra note 45 at 8 (where he suggests that the
truth of legal proposition is dependent on the truth of moral propositions). Dworkin is not
alone of course. Michael Moore could also be read in the same way.
52. For Waldron, for example, the need to separate law and morality does not depend on the fact
that there is no moral objectivity in morality. Jeremy Waldron, “The Irrelevance of Moral
Objectivity” in Waldron, ed, Law and Disagreement (Cambridge University Press, 1999) at
164-87.
53. There is some shift in Dworkin‘s emphasis in this regard between his early work in “Hard
Cases”, supra note 3, and “Can Rights Be Controversial?”, supra note 4, compared to his posi-
tion in Law’s Empire, supra note 7 at 190, when he discusses the “[P]uzzles of Legitimacy”.
The relation between the right answer theses is clearer in his early writings compared to his
position in Law’s Empire. He argues that “a state is legitimate if its constitutional structure and
practices are such that its citizens have a general obligation to obey political decisions that
purport to impose duties on them.” Ibid at 191.
54. For Hart, indeterminacy is rare and at the margin and as such can’t threaten law’s legitimacy.
See Hart, The Concept of Law, supra note 32.
55. For Coleman and Leiter, law in fact can be indeterminate and this indeterminacy can be per-
vasive (for Leiter more than for Coleman), but the issue does not threaten its legitimacy or
threaten liberal legality, for what is important for our (their) purposes is predictability not
determinacy, and law can be predictable while not necessary determinate. See Jules Coleman
& Brian Leiter, “Determinacy, Objectivity and Authority” in Andrei Marmor, ed, Law and
Interpretation (Oxford University Press, 1995) 203-79. In particular see 229-33. Coleman and
Leiter draw attention to the fact that Dworkin and CLS actually agree as to the centrality of
determinacy to the legitimacy of law. Ibid at 214-15.
56. In a series of papers and books Weinrib has been developing a theory of formalism that by-
passes many of the problems associated with formalism as simply a matter of mechanical
application of rules or determinacy. Drawing on the work of Kant, Weinrib severs the link
between legitimacy and determinacy. “Kant would define legitimacy in terms not of prede-
termined correct answers but of subsumption under the concept of right…what matters for
legitimacy is the conformity of public law to the imperatives of practical reason in its external
aspect. Law’s moral force comes not from its determinacy but from its embodying the rational
freedom of purposive being.” Ernest Weinrib, “Law as a Kantian Idea of Reason” (1987) 87:3
Colum L Rev 472 at 507. Not only that, but Weinrib understands indeterminacy as inherent in
the Kantian project (which he thinks is the basis of our legal conception of law). As he writes:
“[i]ndeed, indeterminacy is a necessary aspect of Kant’s legal conceptualism, something built
into its foundations. Any conceptual system is necessarily indeterminate.” (At 505.) For the
irrelevance of indeterminacy and its ineffectiveness attack on legal formalism, see his book
The Idea of Private Law (Oxford University Press) 222-29.
57. Kress argues that “Determinacy appears to have limited relevance to legitimacy…determi-
nacy is neither necessary nor sufficient for legitimacy”. Ken Kress, “Legal Indeterminacy and
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206 Zreik
cede the existence of lack of determinacy, but do not think that this threatens
law’s legitimacy, or indeed poses a threat to the liberal project of legality.
These three aspects put together (unitarian theory, relational theory, centrality
of determinacy), establishes them as two opposing poles and casts the debate
descriptively and normatively in an image of either/or.
2. Dworkin
2.1 On Objectivity, its Meaning and its Limits
A reader of Dworkin can get the impression that he represents everything that
Kennedy is skeptical about. This is especially true regarding Dworkin’s writings
on the objectivity of interpretation and the right answer thesis. In the following
section, I will try to read Dworkin’s thesis in this light, but in a way that can pre-
pare the ground for my discussion in the next chapter where I compare his take
with that of Kennedy.
That hypothetical reader of Dworkin can indeed get the impression that
Dworkin is proposing a theory that there is a right answer for legal questions and
that the role of judges is to discover that answer. Already in his first book, Taking
Rights Seriously, Dworkin states at the introduction the following:
The essays emphasize that there are hard cases, both in politics and in law… it may
be objected that in such circumstances it is nonsense to suppose that any rights ex-
ist at all. This objection presupposes a general philosophical theory according to
which no proposition can be true unless some procedure exists, at least in principle,
for demonstrating its truth…Chapter 13 argues that we have no reason to accept
that general philosophical position and good reason to reject it, particularly insofar
as it applies to arguments about rights.58
In fact, when we examine in Chapter 13, which deals with the question of wheth-
er right can be controversial, we see that Dworkin makes the claim that: “I insist
that the process, even in hard cases, can sensibly be said to be aimed at dis-
covering, rather than inventing, the rights of the parties concerned [emphasis
added].”59 A few years later, Dworkin articulated what appears to be a similar
view, if formulated a bit differently:
I now wish to defend the unpopular view that in the circumstances just described
the question of Tom’s contract may well have a right answer against certain argu-
ments on which its opponents knowingly or unknowingly rely [emphasis added].60
But what does Dworkin mean by this?
Legitimacy” (1989) 77 Cal L Rev 283, reprinted in Gregory Leyh, ed, Legal Hermeneutics:
History, Theory, and Practice (University of California Press, 1992) 200 at 210-11.
58. Dworkin, “Introduction”, supra note 1 at xiv.
59. Dworkin, “Can Rights Be”, supra note 4 at 280.
60. Dworkin, “No Right Answer”, supra note 6 at 119.
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2.2 Right Answer Thesis
2.2.1 As Fact or as Likelihood
However rarely, Dworkin still writes sometimes as if his thesis on the Right
Answer is a kind of a report on the state of legal materials themselves. Dworkin
thinks that a judge can reach a “right” answer in most cases. That is far from say-
ing that this task is easy, and in fact it needs a judge who is no less than Hercules.
Dworkin entertains the idea that at times there is a tie—a situation of equal argu-
ments both ways—“but” he adds:
[…] In a modern, developed, and complex system, the antecedent likelihood of that
kind of tie is very small. The tie result is possible in any system, but it will be so
rare as to be exotic in these…it will be rare, I think, that many lawyers will agree
that neither provides a better fit than the other [emphasis added].61
Soon after, in a later paper, Dworkin tries to put his argument within limits—
claiming that he did not mean it to be a global argument about the legal system
in general, but about those he is acquainted with:
I believe that such cases, if they exist at all, must be extremely rare in the United
States and Great Britain [emphasis added].62
The reason that Dworkin holds such a hopeful position can be traced to his thick
vision of law that includes principles that can always supplement rules, thus leav-
ing no place for gaps; this position thus stems from his holism, and to his view
of law as integrity. But whatever the reasons for the ‘rareness’ of such cases are,
this portrayal of ‘rareness’ reminds us of H.L.A. Hart’s take on the issue without
adding much to it. Let us look for another meaning of the right answer thesis.
2.2.2 Right Answer as Deduction:
One way to understand Dworkin’s argument would be view it as a deduction in

the Kantian sense (similar to Hans Kelsen deduction of the Grundnorm).63 By
this I mean the idea that having a right answer is not something out there that we
are able to show or prove, but rather something whose existence we can deduce.
How? If we watch the way judges write their decisions, the way they argue, the
way they justify their positions, we can learn that when they sit down to write
their decisions they assume the existence of a right answer lying within the legal
materials. We need this assumption in order to make sense of the practice of legal
argumentation, and without it we will be committing a rational error. Dworkin
61. Dworkin, “No Right Answer”, supra note 6 at 143.

62. Ibid at 144. Dworkin sometimes speaks in terms of likelihood: “The availability of this second
dimension makes it even less likely that any particular case will have no right answer” [empha-
sis added]. Ibid at 143.
63. Hans Kelsen, Pure Theory of Law, edited and translated by Max Knight (University of
California Press, 1967) [Kelsen, Pure Theory of Law].
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208 Zreik
thinks that this is the way we argue about law and about morality at large. When
people disagree about moral issues they continue to defend their position as be-
ing the “right” position, regardless of the fact that there is no brute fact out there
that corresponds to their position. He says:
People who make these judgments do not believe any of this nonsense about brute
facts (I doubt there is anything there to believe), and yet they continue to make and
argue about their interpretive claims in a critical and judgmental way, supposing
that some claims are better than others, that some are right and others wrong.64
Dworkin makes a similar argument regarding the nature of disagreement be-

tween judges. The disagreement is genuine, in good faith, and robust at the same
time. The judges do not write their decisions in a way that says: ‘I thought about
it and I prefer this position, and I am sure that your position is equally right, but
I simply prefer this one’. Judges think that they ‘got it right’; that their position
is the right position, and had other judges thought thoroughly about the matter
they would have reached the same decision that they had. That is to say, that
judges experience their decision as something more than a reporting their mere
opinions—as reflecting something more immanent in the legal materials, though
not exhausted by the materials themselves, and that their decisions come closest
to capturing that essence.65

In this sense the Right Answer thesis could be read along the lines of concept/
conception distinction that Dworkin develops.66 The Right Answer thesis holds
that there is a univocal reference that lies behind and beneath disagreements and
allows their existence at the first place. If we do not assume the existence of a
‘concept’ that lies beneath our different conceptions of the same concept, and
if we do not assume the existence of right answer, then we are merely talking
across each other, and not really having a genuine disagreement.67
2.2.3 Right Answer as Regulative Idea or Practical Reason
By practical, I mean something along the lines of how Kant uses the term. At
times Dworkin seems to be arguing that though we can never be sure whether
64. Dworkin, “Interpretation”, supra note 5 at 167.

65. See Dworkin, Law’s Empire, supra note 7. Dworkin does not use the word ‘essence’ and fo-
cuses on purposes and goals: “Interpretation of works of art and social practices […] is indeed
essentially concerned with purpose not cause […] Constructive interpretation is a matter of
imposing purpose on an object or practice.” Ibid at 52. He adds that a “participant interpreting
a social practice […] proposes value for the practice by describing some scheme of interests or
goals or principles the practice can be taken to serve or express or exemplify” (ibid).
66. Ibid at 71-72. The concept/conception distinction was been already made by Immanuel Kant
in his Grounding for the Metaphysic of Morals, where he writes: “Freedom and self-legislation
of the will are both autonomy and hence reciprocal concepts. Since they are reciprocal, one of
them cannot be used to explain the other or to supply its ground but can at most be used only
for logical purposes to bring seemingly different conceptions of the same object under a single
concept.” Grounding for the Metaphysics of Morals: On a Supposed Right to Lie because of
Philanthropic Concerns, edited and translated by James W Ellington (Hackett, 1993) at 52.
67. For the importance of the distinction concept/conception in Dworkin see David Brink, “Legal
Interpretation, Objectivity and Morality” in B Leiter, ed, Objectivity in Law and Morals
(Cambridge University Press, 2001) 12 at 22-23.
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there might be a right answer, it would be a good idea if we, and the judges as
well, assume that there is a right answer. At one point, Dworkin uses the lan-
guage of duty:
I shall argue that even when no settled rule disposes of the case, one party may
nevertheless have a right to win. It remains the judge’s duty, even in hard cases, to
discover what the rights of the parties are, not to invent new right retrospectively
[emphasis added].68
At other times, Dworkin uses the terminology of “responsibility”:

The proposition that there is some “right” answer to that question does not mean
that the rules of chess are exhaustive and unambiguous; rather it is a complex state-
ment about the responsibilities of its officials and participants [emphasis added].69
Dworkin is very aware that there is no theoretical way to exclude the possibility
of a tie, but still he wants to the judges to work harder:
“[…] that instruction does not deny the theoretical possibility of a tie, but it does
suppose that, given the complexity of the legal materials at hand, judges will if they
think long and hard enough, come to think that one side or the other has, all things
considered and marginally, the better of the case.”70
This is not a claim about the ‘existence’ of a right answer as much as an invita-
tion to think of the judging process as one that assumes the fact that there is a
right answer. The same holds regarding the view that law is a whole, as some-
thing which has integrity. Dworkin again, is aware that “[t]he law may not be a
seamless web; but the plaintiff is entitled to ask Hercules to treat it as if it were
[emphasis added].”71

One way to think of the nature of this argument would be along the lines of
Kant’s idea of freedom in the Third Antinomy72, or Kant’s idea of progress in
history73. To put it briefly and simply: given the fact that there are arguments for
68. Dworkin, “Hard Cases”, supra note 3 at 81.

69. Ibid at 104. The theme of responsibility is developed further in Dworkin’s book Justice for
Hedgehogs, supra note 12 in the essay titled ‘Moral Responsibility’, where he writes that “the
value of moral philosophy depends more on its contribution to responsibility than to truth.”
Ibid at 121.
71. Dworkin, “Hard Cases”, supra note 3 at 116.
72. For the distinction between speculative and practical reason in Kant, see Immanuel Kant,
Critique of Pure Reason, edited and translated by Norman Kemp Smith (St Martin’s Press,
1965). See Kant’s discussion in the chapter ‘The Canon of Pure Reason’ at 630-44. See also
‘The Transcendental Doctrine of Method’, Chapter III, in particular at 657-60.
73. Kant’s writings regarding progress in history bear resemblance to his writings about freedom:
progress in history is not something one can prove through theoretical reason, but nor can one
can deny it. What one needs is heuristic evidence from history, like the case of the French
Revolution, that history can progress. Our inability to deny that history is progressing com-
bined with heuristic evidence from history that it can progress, may allow us to reconcile our
practical interest and hope in history with our theoretical reason. Kant develops these ideas in
the essays “Toward Perpetual Peace”, “The Contest of the Faculties”, and “Anthropology from
a Pragmatic Point of View”. See Immanuel Kant, Toward Perpetual Peace and Other Writings
on Politics, Peace and History, edited by Pauline Kleingeld, translated by David L Colclasure
(Yale University Press, 2006). See in the same volume Allen Wood, “Kant’s Philosophy of
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210 Zreik
and against the existence of freedom, we are not able to prove its existence or
to disprove it. This is a kind of skepticism about skepticism itself that can give
rise to hope, which implies that freedom is a possibility that cannot be absolutely
denied. As such, we can deploy freedom as a regulative idea for practical purpos-
es—as an idea of reason.74 I think that Dworkin’s take is similar to this position:
given the fact that we are not able to confirm or deny ontologically the existence
of a right answer, we have good reasons to behave and act as if there was such a
right answer. At one point, he puts this in clearer terms:
There are many reasons (perfectly practical reasons among them) for asking judges
to decide hard cases on their best judgment about rights even when that judgment
cannot be demonstrated to be true to the satisfaction of all, and may in fact be
false.75
Among such reasons one can mention at least two. One is that if judges work
under such a presumption, there is a good reason to think that they will try hard to
reach that decision instead of stopping at the middle of their deliberation, settling
for a decision that simply appears to reflect their ideological/political biases.
Second: there is good reason to hope that such an assumption is required to estab-
lish the legitimacy of state coercion. Either way, it is important to keep in mind
that this argument foregrounds the practical consideration. Dworkin reminds us
that at the end of the day—from the perspective of the judge—the question has a
practical tilt to it—i.e., it focuses on what is to be done—not merely a theoretical
one.76 Later in his writing, Dworkin emphasizes this aspect of responsibility: at
the end of the day, the judge must deliver a decision, and the moral philosopher
must take a stand. Any theoretical position is ultimately internal to the substan-
tive internal debate. “There is no philosophical safe harbor in the neighborhood.
We must each believe what we responsibly believe. We are all out on some limb,
even if it is not the same limb.”77 This sentiment for responsibility is something
I will discuss in Kennedy’s work.
2.2.4 Right Answer as More Than Opinion-Persistence of Reasons
Many times, and in different forms, Dworkin’s argument for the right answer
thesis seems to be that the judge’s decisions are far more than mere preferences
or opinions that the judges happen to hold. Dworkin insists on the possibility of
making a judgment, of evaluating different arguments and making a judgment
History” in P Kleingeld & I Kant, ibid at 243-63. For a different view from Wood (who stresses
the reconciliation of practical reason with theoretical reason) see Kleingeld, “Introduction” in
P Kleingeld & I Kant, ibid at xx (who stresses that Kant’s philosophy of history is mainly “pure
normative theory”).
74. Ernest Weinrib develops a whole thesis about law as an idea of reason in several papers: see
Ernest Weinrib, “Law as a Kantian Idea of Reason” (1987) 87:3 Colum L Rev at 472.
76. “Shall we say that the judge must look for the right answer to the question….? Or is it more
realistic to say that there simply no right answer to the question [emphasis added]?” Dworkin,
“No Right Answer”, supra note 6 at 119.
77. Dworkin, Justice for Hedgehogs, supra note 12 at 121.
09_Zreik_40.indd 210 1/16/19 12:43 PM

as to their relevant weight, and of the possibility of giving reasons for preferring
this argument over that argument. Some arguments are superior to others:
I assume that persuasive arguments can be made to distinguish one theory as supe-
rior to another. But these arguments must include arguments on issues of norma-
tive political theory.78
Dworkin goes out of his way to argue against those positions that hold all argu-
ments to be mere opinions with equal weight, and that there is no way to measure
that weight. For Dworkin, to argue against slavery is not simply to say “I am
against slavery and that is just my opinion”; to Dworkin, this mode of argument
is poison:
[…] that these arguments are just their opinions, that there is nothing more to be
said, and that if they think that equality, say racial equality, is of a paramount
importance, they also have to think that there is nothing objective about that view
and that the contrary view has as much claim to be true as theirs. I think that this
is a poison.79
In many ways, Dworkin wants to keep a clear distinction between ‘mere’ opinion
and what he takes to be more than only ‘mere’ opinion, but an opinion supported
by reasons. Thus, for him, when I say that slavery is unjust, I do not mean to
report only my state of mind, but to observe that everyone has good reasons to
oppose slavery, and that I can state and articulate those reasons.80

I am not here to evaluate the soundness of Dworkin’s argument—rather than
to reconstruct it—but it is clear that much of his argument will hinge on what
could be considered as a reason, and whether what is considered by you as a
reason, could be thought by me as mere preference or just a whim.81
78. Dworkin, “The Model of Rules II”, supra note 33 at 68.

79. Dworkin, “Keynote Address”, supra note 9 at 2.
80. Dworkin, “Interpretation”, supra note 5 at 173. In this regard Dworkin is not unique. The
idea of objectivity in moral opinions as being ‘susceptible to reasons’ is wide spread. For a
review of McDowell’s position, see Brian Leiter, “Objectivity, Morality, and Adjudication”
in B Leiter, supra note 67 at 78-83. See Gerald Postema, who holds a methodological view
of objectivity whereby objectivity is basically publicity: when the judgment could be sup-
ported by giving reasons publicly, “[b]roadly speaking a judgment is correct, on this view, if its
backed by sound reasons that are or can be articulated and assessed publicly.” Gerald Postema,
“Objectivity Fit for Law” in B Leiter, supra note 67 at 117. See a recent reconstructive at-
tempt in this direction by Rainer Forst in Rainer Forst, The Right to Justification: Elements
of Constructivist Theory of Justice, translated by Jeffrey Flynn (Columbia University Press,
2012).
81. Take, for example, the distinction between ‘internal reasons’ and ‘external reasons’ developed
by Bernard Williams. See Bernard Williams, “Internal and External Reasons” reprinted in
Moral Luck (Cambridge University Press, 1981) at 101-13. Internal reasons seem to be valid
only within a certain group that accepts certain basic assumptions, while they are not valid
outside the group. If you are a shareholder in a company that deals with oil, and a new field
of oil is discovered in Africa and someone in the company says: “we have to take over those
fields, for that will increase the value of our shares”, then it is clear that raising the value of the
shares is valid reason for shareholders. But it is a non-sequitur for those who are not. External
reasons, on the other hand, seem to be valid for everyone: e.g., ‘we should protect the environ-
ment’. In a way, internal reasons could be thought as hypothetical imperatives, while external
reasons as categorical ones. Dworkin seem to think that we have plenty of external reasons that
are valid for everyone; otherwise it would be difficult to make sense of his theory.
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212 Zreik

I think, however, that the point that Dworkin wants to stress in this regard has
an affinity with the Kantian aesthetic judgment, which is an instance of reflective
judgment. We can speak of objectivity even when we are not reporting a state of
empirical fact—as in the empirical sciences. Not only that, but we can speak of
some meaning of objectivity even when we do not have a determining judgment in
the Kantian sense.82 Kant thought of moral judgment basically in terms of determi-
nate judgment. Dworkin does not think of morality, or law, in this was—as being
fully subject to determining judgment. In fact, Dworkin’s analysis bears traces of
both of determinate and reflective judgment and does not view these as mutu-
ally exclusive of one another. But his inspiration of determinate judgment draws
on Kant treatment of duties of virtue in particular, not duties of right, in which
the judgment allows some latitude.83 Here, however I want to stress the aspect of
universality that lies in reflective judgment as source of inspiration for Dworkin.84

Kant thought in two sense of universality: one that emerges from his vision
of the work of the categorical imperative that operates according to determining
judgment, and the other mode of universality that emerges from the judgment of
the beautiful. Kant distinguishes between judgments of the beautiful from those
of the merely pleasant. In judgments of the pleasant “[E]veryone is content that
his judgment, which he bases upon private feeling and by which he says of an
object that it pleases him, should be limited to his own person.”85 In judging the
pleasant, there is no claim for universality whatsoever. But things are different
with the judgment of beauty, where there is a claim for universality. Someone
making the judgment that this object is beautiful is not reporting that it pleases
him rather “[h]e must believe that he has reason for attributing a similar satisfac-
tion to everyone. He therefore will speak of the beautiful as if beauty was a char-
acteristic of the object and the judgment logical, although it is only aesthetical.”
Kant immediately adds that “the judgment of taste, accompanied with the con-
sciousness of separation from all interest, must claim validity for every man.”86
This is what Kant calls the Subjective Universal.
82. Kant makes a distinction between determinate judgment and reflective judgment. Judgment
in general “is the faculty of thinking the particular as contained under the universal”. Now “if
the universal (the rule, the principle, the law) be given, the judgment which subsumes the par-
ticular under it…is [determining]. But if only the particular be given for which the universal
has to be found, the judgment is merely reflective.” Immanuel Kant, Critique of Judgement,
translated by James Creed Meredith, edited by Nicholas Walker (Hafner, 1951) at 15 [Kant,
Critique of Judgement].
83. Kant makes a distinction between external, narrow perfect duties which belong to the domain
of right—the legal domain—and duties of virtue, which that are wide, imperfect, internal du-
ties. The first set can be formulated with exactitude, while the second retain some latitude in
their performance. Still, both are categorical and allow no exceptions. Dworkin’s treatment of
law, insofar as it includes principles, does in fact resonate with Kant’s treatment of virtue. See
Immanuel Kant, Metaphysics of Morals, translated and edited by Mary J Gregor (Cambridge
University Press, 2000) at 145-50.
84. Long before Dworkin, Hannah Arendt was inspired by Kant’s Critique of Judgment to develop
what she takes to be Kant’s implied political philosophy. See Hannah Arendt, Lectures on
Kant’s Political Philosophy, edited by Ronald Beiner (Chicago University Press, 1992).
85. Kant, Critique of Judgement, supra note 82 at 46. Kant adds “as regards the pleasant, there-
fore, the fundamental proposition is valid: everyone has his own taste (the taste of sense).” Ibid
at 47.
86. Kant, Critique of Judgement, supra note 82 at 46.
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It is in this sense, I think that Dworkin wants to claim that there is more to
legal Judgment than just mere preference or pleasure. This, however, does not
amount to logical necessity, or determining judgment. If someone continues to
insist that there is nothing objective or universal in the judgment, it would seem
that Dworkin, apart from suggesting further reasons, is not in a position to press
his case or to ‘prove’ it.87

Dworkin nevertheless seems to have a problem, for while he establishes that
moral and legal reasoning is not merely about preferences, as is the case with
taste, and while one might still think that reasons go beyond mere preference,
this in itself is not good enough to establish the case for a Right Answer thesis.
I can have an imperfect duty to support my elderly mother and spend time with
her, while also having a duty towards my children to spend time with them as
well. I have good valid reasons—moral reasons—that support both sides of the
argument, but this does not imply that there is a right answer for this dilemma.
Be that as it may, the aim of this sub-section was in fact to show that Dworkin’s
right answer thesis is committed to something that is less than the right answer
thesis.
2.3 Anti-Foundational Objectivity
Dworkin develops his theory of objectivity and truth in several places. The first
is his essay “On Interpretation and Objectivity”88; he went on to develop the
thesis in the more detailed paper, “Objectivity and Truth: You’d Better Believe
it”,89 and most recently in a chapter in his book Justice for Hedgehogs.90 From
an early stage, Dworkin gives up any idea of a general theory of objectivity of
morals that pretends to be neutral, and meta-ethical in itself. “I see no point in
trying to find some general argument that moral or political or legal or aesthetic
or interpretive judgments are objective.”91 There is no external objective neutral
point from upon which the objectivity of morality can stand or from which it can
derived, rather, it is morality and interpretation all the way down. As he puts it: “I
have no arguments for the objectivity of interpretative except moral arguments,
no arguments for the objectivity of interpretive judgments except interpretive
judgments.”92 Thus, when people argue that slavery is “objectively” wrong, they
are not asserting a second, neutral, meta-ethical level of scientific objectivity—
rather, they do so “to distinguish the opinions so qualified from other opinions;
they mean to distinguish the opinions so qualified from other opinions that they
87. Compare this to Kant: “There is no rule according to which anyone is forced to recognize
anything as beautiful. We can’t press upon others by the aid of any reasons or fundamental
propositions our judgment that a coat, or a house, or a flower is beautiful. People wish to sub-
mit the object to their eyes….and yet, if we then call the object beautiful, we believe we speak
with a universal voice.” Ibid at 50.
88. Dworkin, “Interpretation”, supra note 5 at 167-80.
89. Ronald Dworkin, “Objectivity and Truth: You’d Better Believe it” (1996) 25:2 Philosophy &
Public Affairs 87 [Dworkin, “Objectivity and Truth”].
90. Dworkin, Justice for Hedgehogs, supra note 12. See in particular chapters 2 and 6.
92. Ibid.
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214 Zreik
regard as subjective—just a matter of their tastes.”93 It is basically an emphatic

assertion, and expresses the fact that my idea of the iniquity of slavery is not just
a consequence of people saying it is wrong. It is not simply a matter of conven-
tion, rather, it is wrong.
This approach allows Dworkin to establish a position that goes beyond con-
ventionalism in ethics and in law, but without committing himself to a realist
view of morality that thinks of moral values as being part of the fabric of the
universe.
It is clear by now that the kind of objectivity that Dworkin is alluding to is in-
ternal to practice and does not depend on anything external to it. In fact, Dworkin
questions the idea of an external skeptic: the philosopher who thinks he can stand
outside the practice of the legal argumentation is mistaken and in fact holds an
incoherent position.94 In some sense, Dworkin launches a critique of positivism
reminiscent of the critique that H.L.A. Hart launched against Austin’s theory of
law, and he pushes this internalist shift to its ultimate end.95 Dworkin wants to
insist that his theory works from within the practice and the kind of objectivity
he means to advocate is achieved from within this practice, not as observer:
The judge trying a law suit in the position of churchgoer, not the sociologist. He
does not mean to state, as a cold fact, simply that most judges believe that they
have a duty to follow what the legislator have said; he means that they do in fact
have such a duty and he cites that duty, not others’ beliefs, as the justification for
his own decision.96
For Dworkin, there is no place outside interpretation where one can stand and
make a judgment about truth or falsity of the interpretation. In this sense, Dworkin
simply denies the coherence and relevance of so-called meta-ethics. It is inter-
pretation all the way down. The external skeptic is de facto an internal skeptic
masquerading in externalist garb. Thus, when someone argues that law is law
regardless what we think of its morality—say, H.L.A. Hart—then for Dworkin
this is an interpretative position itself, and not a position about interpretation.
According to Dworkin this is true for morality as much as it is true for law:
I have yet been given no reason to think that any skeptical argument about morality
can be other than moral argument, or skeptical argument about law other than legal
argument, or skeptical argument about interpretation other than an interpretive argu-
ment. I think that the problem of objectivity, as it is usually posed, is a fake because
93. Dworkin, “Objectivity and Truth”, supra note 89 at 98.

94. For an elaboration of Dworkinian anti-foundationalism, see Arthur Ripstein, Ronald Dworkin
(Cambridge University Press, 2007). For a critique of Dworkin on the question of external skep-
ticisms and values of meta-ethics, see Brian Leiter, “Objectivity, Morality, and Adjudication”,
supra note 67 at 66.
95. “We need a social theory of law, but it must be jurisprudential just for that reason. Theories
that ignore structure of legal argument for supposedly larger questions of history and society
are therefore perverse […] This book takes up the internal, participants’ point of view; it tries
to grasp the argumentative character of our legal practice by joining the practice and struggling
with the issues of soundness and truth participants face.” Dworkin, Law’s Empire, supra note
7 at 14.
96. Dworkin, “Model of Rules II”, supra note 33 at 51.
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the distinction that might give it meaning, the distinction between substantive argu-
ments within and skeptical arguments about social practices, is itself a fake.97
This position is part of Dworkin’s worldview that rejects the two-levels theory
when it comes to evaluative-interpretative enterprises like morality, art, or law.
Dworkin rejects the idea that we can distinguish between the everyday evaluative
conversation and the philosophical conversation about the first conversation.
The meta-ethical position argues that the discussion that you and I have in our daily
life belongs to a world of discourse that is separate from the philosophical. We are
talking normatively evaluative. We are making value judgments. But philosophers
are asking questions whether not within our conversation, but about our conversa-
tion… Now in a good deal of writing I tried to oppose that view.98
By the time we get to the later Dworkin of Justice for Hedgehogs, he argues that
the value of moral philosophy depends more on contributing to responsibility and
not to truth, but this statement is so categorical that he is forced to ask: do we need
truth?99. Dworkin’s answer is very interesting and very telling, because he thinks
that abandoning truth will come at a high cost: “Explicitly declaring a lack of inter-
est in truth would pass for skepticism, and that would encourage all the confusion
we uncovered in part one. Insisting on truth has more positive virtues as well”.100

The picture emerging from this sense of truth in Dworkin is that it is inter-
nal to practice, is not foundational, and it is a precept of practical reason rather
than a theoretical fact.101 And I think that understanding the meaning of truth in
Dworkin writings in this manner might attenuate our perception of his opposition
to Kennedy.
2.4 Freedom and Constraint in Dworkin’s Project of Interpretation
When read in opposition to H.L.A. Hart, mainly regarding the question of discre-
tion in hard cases, Dworkin appears as an objectivist—as someone who thinks
that a judge’s role is to struggle hard to discover the right answer, and that judges
have very limited discretion. The persistence of principles, the holistic approach,
the chain constraint—all of these can orient the judge and lead him to the ‘right’
decision. This is a charge that has been leveled at Dworkin, and a charge that he
went out of his way to refute:

98. Dworkin, “Keynote Address”, supra note 9 at 2.
99. Dworkin, Justice for Hedgehogs, supra note 12 at 120.
100. Ibid at 121. It is very hard to miss the Kantian theme in this passage that resonates well
with Kant privileging practical reason to theoretical reason. See Immanuel Kant, Critique of
Practical Reason, edited and translated by Werner S Pluhar (Hackett, 2002) at 152-54. This
priority was reframed in Kant’s Critique of Judgement, supra note 82: “No use of this concept
is possible except its use for practical reason according to moral laws, and the final purpose of
creation is that constitution of the world which harmonizes with that which alone we can put
forward definitely according to laws, viz., the final purpose of our pure practical reason, in so
far as it is to be practical.” Ibid at 306.
101. Some took Dworkin to be making postmodern arguments. See Brian Leiter, “Objectivity,
Morality, and Adjudication”, supra note 67 at 77.
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216 Zreik
One reader of the original essay (‘How Law is Like Literature’), at least, though
that in spite of my many disclaimers, I was committed to a silly metaphysi-
cal theory of interpretation, according to which meanings are “just there” in
the universe, literary genres are “self-announcing” texts act as “self-executing
constraint” on my interpretation and interpretation is therefore the discovery
of brute, non-interpretive, and recalcitrant facts. Of course, I never said any of
these things… I did say, among other things, that interpreting was different from
inventing.102
But one can imagine easily also the opposite charge launched against Dworkin:
if it is a matter of interpretation, then rules are malleable in the hand of the judge
and they can hardly exercise any constraint.103 Since Dworkin puts considerable
emphasis on the non-explicit nature of law—morality, principles, integrity—the
role of the judge seems to be empowered compared to the authority of the legal
text. In this sense, the ‘subjective’ aspect of legal interpretation is increased at
the expense of the authority of legal rules. This clearly can invite the image of
‘invention’.
In many ways, both images are right and wrong at the same time. It is true
that Dworkin’s holistic approach, which puts rules within the overall project of
interpretation, and makes them dependent on principles and on moral and politi-
cal values, does question their independence; this approach opens the way for
interrogating the rules themselves, and as such, for threatening the stability and
determinacy of these rules, as they are not free-standing but rather form a part of
a larger web. There is always more in law than what there is in rules, and rules
can never exhaust the legal world. Law has always something unsaid about it,
something implicit that is still waiting to be unearthed by the judge.
This could be viewed as a destabilizing image. But for Dworkin this is the
opening moment in the process of interpretation, not its end. This first apparent
destabilization is ‘followed’ by a more stabilizing image of law. The practice of
the judge might destabilize the rules, but at the end the practice is fairly stable
within the law. If we view law as system of rules, then it can clearly be destabi-
lizing, but if we view law as a whole—as Dworkin sees it—then there is closure
that comes ‘after’ the initial moment of openness. Principles might be a problem,
but they are the solution as well.
The organizing theme for Dworkin here is the concept of ‘purpose’. Law is
an interpretative project, and judges approach the materials knowing that the
law has a purpose. This purpose is separate and distinguished from the intent of
legislator, and the subjective intent of the judge himself. By the analogy of law
to a certain practice, Dworkin invites us to view law as an enterprise that aims at
some purpose which it is the judge’s role to articulate, time and again.104

103. Joseph Raz has launched such a critique: “there is no gap between ideal law and interpretation
of exiting law. Under these conditions one can interpret the Constitution to mean anything at
all. It can be read to mean the same as Shakespeare’s Hamlet.” Joseph Raz, “Dworkin: A New
Link in the Chain” (1986) 74:3 Cal L Rev at 1103. From my experience in class, this is one of
the impression students get from reading Dworkin—that it is all in the hands of the judge.
104. See Dworkin, Law’s Empire, supra note 7 at 45-65.
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Dworkin, in a sense, blurs the distinction between hard cases and clear or
easy cases, for what appears, at first glance, as a clear case might turn out to be
something else after we invoke principles, political morality and after the judge
Hercules enters the stage. On the other hand, cases which appear to be hard cases
might turn out in the end to have a right answer latent within the legal materials,
although we may have to dig deep, and treat law as a whole, to uncover them.
As he writes: “The distinction between easy and hard cases at law is neither so
clear nor so important as this critics assumes […] So easy cases are, for law as
integrity, only special cases of hard ones.”105

Dworkin’s image of the practice of interpretation is definitely an image of
both freedom and constraint at the same time, and he has been open to two kinds
of charges: of subjectivism (or manipulation,) and of objectivism. He goes out of
his way to defend himself against both.
The ‘subjective’ aspect lies in the fact that rules can never exhaust the legal
world, because the legal world is about values. This invites an active role on
the part of the judge. As in the case of interpreting a practice—which represents
a value and is not exhaustive—“so that the strict rules must be understood or
applied or extended or modified or qualified”106 Thus, legal interpretation is a
purposeful activity on the part of the judge. And as is the case in interpreting
a practice, “people now try to impose meaning on the institution—to see it in
its best light and then to restructure it in the light of that meaning.”107 And as
in interpreting a practice, the judge has to move back and forth between the
rules representing the practice and those values that stand behind it.108 This
back-and-forth is a purposeful activity, which aims at something; it is an activ-
ity that entails “striving”,109 and imposing purpose.110 Viewed as such, it would
be inappropriate to use the language of discovery anymore, for interpretation
is more an interactive enterprise.111 This image of Dworkin’s Hercules invited
the criticism that Hercules is in fact “playing politics”112, as well as the charge
of invention.113
But as we know, Dworkin’s Hercules, while indeed engaged in creative in-
terpretation, imposing purpose and striving, is still constrained. While the idea
of principles does some work in Law’s empire, the distinction between rules
and principles is still watered down. Instead, Dworkin deploys a language that
105. Dworkin, Law’s Empire, supra note 7 at 266.

106. Ibid at 47.
107. Ibid.
108. “Interpretation folds back into the practice, altering its shape, and the new shape encourages
further [re]interpretation, so the practice changes dramatically.” Ibid at 48.
109. “We [w]ould then say that all interpretation strives to make an object the best it can be, as an
instance of some assumed enterprise” [emphasis added]. Ibid at 53.
110. “Roughly, constructive 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
be[long] [emphasis added].” Ibid at 52.
111. “Creative interpretation, on the constructive view, is a matter of interaction between purpose
and object [emphasis added].” Ibid.
112. Ibid at 258. Dworkin defends himself from this charge.
113. “The first is this: interpretation, on my account, really is no different from invention.”
Dworkin, “Interpretation”, supra note 5 at 168.
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218 Zreik
emphasizes integrity and coherence, and which includes principles. But now he
emphasizes the “overall” structure, law as “whole”.114

If the first pole of “imposing purpose” has a centrifugal image, then the idea
of law as a whole, the integrity of law supposed to give weight to history and
previous decisions of the court, evokes a centripetal image. But these are in fact
just that—images; for the purpose of the ‘centrifugal’ as the purpose of the ‘cen-
tripetal’ is to find the overall balance of ‘fit and justification’ that gives the right
interpretation. In this sense, Dworkin is right to describe his project as one that
intends neither to discover nor to invent the answer, for the dichotomy collapses
in his system. There is no difference between finding and inventing, as the judge
is neither free nor constrained but both at the same time.115
Dworkin does not juxtapose objective-external constrains with the subjective
desire of the judge. The constraints could be internal to the judge himself. The
judge’s convictions, and the way he “experiences” the medium itself could be a
constraint on him. In this sense Dworkin’s understanding of the process of judg-
ment is very much phenomenological.116 It is so more than he admits.
The answer that the judge’s reach does not guarantee anything and does not
necessarily reflect the right balancing, all things considered. These answers re-
flect only what the judge has reached according to his best judgment at that
moment:
We must not suppose that his answers to the various questions he encounters de-
fine law as integrity as a general conception of law. They are the answers I now
think best. But law as integrity consists in an approach, in questions rather than
answers, and other lawyers and judges who accept it would give different answers
from his to the questions it asks. [emphasis added]117
114. Dworkin, Law’s Empire, supra note 7 at 227. Dworkin invokes this language mainly when
he discusses integrity in general and in particular when he discusses integrity in law. “It aims
rather to justify what they did in an overall story worth telling now” [emphasis added] (ibid)
(discussing the role of law as integrity). “He must try to make this the best novel it can be
construed […] That calls for an overall judgment on his part, or a series of overall judgments
as he writes and rewrites” [emphasis added] (ibid at 229-30) (discussing the role of the novelist
in the Chain Novel). “You must then ask yourself which interpretation makes the work of art
better on the whole” [emphasis added] (ibid at 234). “Whether any interpreter’s convictions
actually check one another, as they must if he is genuinely interpreting at all, depends on
the complexity and structure of his pertinent opinions as a whole” [emphasis added] (ibid at
237). “Law as integrity, then, requires a judge to test his interpretation of any part of the great
network of political structure and decisions of his community by asking whether it could form
part of a coherent theory justifying the network as a whole.” [emphasis added] (ibid at 245).
“Law as integrity has a more complex attitude towards departments of law. Its general spirit
condemns them, because the adjudicative principle of integrity asks judges to make the law
coherent as a whole.” [emphasis added] (ibid at 251). “The spirit of integrity, which we located
in fraternity, would be outraged if Hercules were to make his decision in any way other than
by choosing the interpretation that he believes best from the standpoint of political morality as
a whole.” [emphasis added] (ibid at 263).
115. “A free or constraint judgment? The answer is plain enough: neither of these two crude
descriptions—of total creative freedom or mechanical textual constraint—captures your situa-
tion, because each must in some way be qualified by the other.” Ibid at 234.
116. “We might say that in these examples the constraint is “internal” or “subjective.” It is nev-
ertheless phenomenologically genuine, and that is what [is] important here.” Dworkin, Law’s
Empire, supra note 7 at 235.
117. Ibid at 239.
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It is interesting to notice that Dworkin thinks of law as integrity, and the right an-
swer thesis mainly as an approach, and mainly as consisting in “questions rather
than answers [emphasis added]”. We can now ask: Is Dworkin’s theory mainly a
‘discourse on method’? Can we retitle his major piece, “Is There Really No Right
Answer?” by replacing it with “Is There Really No Right Question?”.
Perhaps this is the moment to move to Duncan Kennedy, to see what his posi-
tion is, and in what sense he differs from Dworkin.
3. Kennedy
Kennedy is one of the major founders of the Critical Legal Studies (CLS) move-
ment. The kind of intellectual influences on his work seems to be different from
those that influenced Dworkin. Kennedy sees himself in continuity with the
Legal Realism tradition within law, as well as with an antinomian decisionist tra-
dition that takes inspiration from the writings of Kierkegaard, Marx, Nietzsche,
Weber, Saussure, Schmitt, Sartre and the Frankfurt School. However, he is not
a fan of ‘schools’, and his work is, intentionally, very eclectic.118 Many of those
that influenced his writings were also the targets of his harsh critique.
As I mentioned in the beginning of this paper, Kennedy seems to symbolize
the exact opposite of what Dworkin stands for in legal theory today. In the fol-
lowing section, however, I want to suggest a close reading of Kennedy’s work,
and place some emphasis on some of the qualifications he offers: when and
where he declares that his theory ‘is not’ one thing or another, or that it has been
‘misunderstood’. This, in part, will allow me to see the reach of the theory and its
limits. I also think that this approach will allow me a clearer perspective on the
differences between the two theorists.
I now wish to focus on some themes in Kennedy’s work that will allow me to
draw comparisons with the work of Dworkin, before I turn to the final chapter,
where I discuss the differences between the two theorists, the meaning of those
differences and their relevance.
3.1 Working on the Materials-Freedom and Constraints
Kennedy starts from the simple truism that any talk about judging in the abstract
is almost meaningless. We always stand somewhere. Thus, he claims: “I don’t
find myself at all convinced when people start out claiming they can tell us about
judging without some grounding in a specific imagined situation.”119
The idea that we can separate ourselves and claim an objective distance from
the legal materials, as if those materials were something standing on their own is
118. For a very conscious ‘appropriation’ of intellectual traditions in the law see Duncan
Kennedy, “A Semiotics of Critique” (2001) 22:3-4 Cardozo L Rev 1147. In the introduction to
his Critique of Adjudication Kennedy puts it clearly: “This book is methodologically eclectic.”
Dworkin, Critique of Adjudication, supra note 16 at 15.
119. Kennedy, “Semiotics”, supra note 14 at 12. There are almost no references in Kennedy’s
work to Heidegger or Gadamer, but the association of interpretation and application is a strand
of this intellectual heritage.
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220 Zreik
in part an illusion. We meet legal materials in the process of applying them, and
this is the project that Kennedy assigns to himself: “I am going to be looking at
law as a person who will have to apply it.”120 In this, sense Kennedy narrows the
gap between law and applying the law, but as we saw, this is also an impulse that
Dworkin develops when he challenges that positivist understanding of law as
plain fact.121 As we also saw, Dworkin questions this separateness and defines the
question of what law is and what law should be (the question of application) as
untangled questions. But Dworkin reserves some ontological priority for the ‘le-
gal materials’—as explicit materials or implicit latent principles—that Kennedy
denies. Thus, late Kennedy works carry a phenomenological stress, aiming to
focus more on the activity of judging and the way the judge experiences this
activity, and less on the legal materials themselves.122 The more time passes, the
more Kennedy seems to focus on the ‘meeting’ of the judge with the materials,
and less on each separate side of this meeting.
The key word for Kennedy is “work”.123 As he puts it: “The phenomenologi-
cal account is supposed to persuade the reader that jurists often destabilize their
initial experience of legal compulsion by legal work [emphasis added].”124 The
image that Kennedy has of the judge is different, in a way from Hercules, for while
Hercules is an active judge imposing purpose, he is still an absolutely disinterested
judge who has no stakes whatsoever in the result case in front of him. Kennedy’s
judge, on the other hand, has a strategic goal. He works on the materials and tries
to take them one direction or the other, but that does not mean that the materials do
surrender to his desire, or interest, to move this way or that way: “The two pieces
together represent the experience of legal reasoning as an activity perused in a
medium that is at once plastic and resistant” [emphasis added].125
Sometimes, judges feel they can manipulate the materials in a direction that
they want the case to come toward; at other times they experience the resistant
power of the legal materials constraining their activity and their strategic attempt
to take the decision one way or another.126 But this constraint is never a quality
120. Ibid.
121. Ibid at 6-7.
122. Phenomenology has been there all along in Kennedy’s work—from the very start, and it is
not a new discovery in his later work. He deploys it early on in his Rise and Fall and in his ear-
ly on paper on “Freedom and Constraint in Adjudication”. Yet some of his early works are fo-
cused on the legal materials themselves, as in his paper “Blackstone Commentary”, supra note
19, or his early on paper Duncan Kennedy, “Form and Substance in Private Law Adjudication”
(1976) 89:8 Harv L Rev at 1685-778 [Kennedy, “Form and Substance”]. Phenomenology be-
comes more and more dominant in his work and he distances himself from his early global
“fundamental contradiction” thesis, without abandoning it completely.
123. As he mentions in his paper, he borrows the idea of work from Karl Marx and deploys it
creatively on the legal materials themselves.
124. Kennedy, “Introduction”, supra note 43 at 3.
125. Ibid.
126. Despite the fact that Kennedy admits the influence of both Marx (the concept of work) and
Husserl’s phenomenology (borrowing the concept of “epoche”), I still think that much of the
insight comes from Hegel and Heidegger. Kennedy rejecting subjectivism and objectivism
resonates with Heidegger’s collapsing the subject-object distinction into a totality of being:
“Self and world are not two beings, like subject and object, or like I and thou, but self and
world are basic determination of the Dasein itself in the unity of the structure of being-in-
the-world.” Martin Heidegger, The Basic Problems of Phenomenology, translated by Albert
Hofstadter (Indiana University Press, 1988) at 297.
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of the materials ‘themselves’, because for Kennedy the ‘materials themselves’

are no more than the Kantian thing itself—which we know does exist but we can
never know what it really is; it will remain a black hole for us, or a sealed box.127
Sometimes, judges start their work on the materials with a certain experience of
constraint that stands in the way of their attempt to reach their preferred deci-
sion, but in a later stage, they destabilize this constraint and feel freer to decide
otherwise. At other times still, judges can experience the materials the other way
around: although they started with a sense of freedom to decide, they end up with
an experience of constraint.128

The moment we begin to view the work of the judge from inside practice, the
question stops being whether the judge is free or constrained, for this is difficult
to say this in abstract terms without regard to the specific experience of the judge
at hand: “The judge is neither free nor bound. I do not see it that way from inside
the situation. From inside the situation the question is, where I am going to de-
ploy the resources I have available for this case? The issue is how I should direct
my work to bring about an outcome that accord with my sense of justice.”129

Here, Kennedy pushes the impulse of the “persistence of purpose” to its end.
The judge works with a purpose and this purpose persists through and through
the legal work: “Legal reasoning is like a work with purpose.”130 The idea of
purpose is not at all alien to Dworkin, but Dworkin thinks that this purpose is
somehow explicitly or implicitly latent in the legal materials themselves; while
the judge’s role is to construct this purpose in a creative interpretation, the pur-
pose is also latent and awaiting its active reconstruction by the judge, and it is
separable from the judge’s own purposes, and as such it might be identifiable.
While Kennedy goes all the way in questioning the subject-object distinc-
tion, Dworkin, despite his anti-foundationalism, retains the distance that allows
the judge, through creative interpretation to ‘find’ those latent purposes. But for
Kennedy, while being a judge clearly means being aware of the constrains of
the medium, there is no reason to assume that being a judge consumes all of our
human existence and interests in life—as citizens, husbands, fathers, workers,
intellectuals etc., with ideas ideals and convictions. As such, Kennedy argues
that “having to work to achieve an outcome is in my view fundamental to the
situation of the judge.”131 Despite this however, Kennedy never argues that the
judge’s purposes will always decide the case for this or that party; on the con-
trary, he bluntly admits that “the judge’s work may end by reversing rather than
127. One can argue that Kennedy’s argument could in many ways be read as taking the Kantian
philosophy of the thing-in-itself, as it was reformulated by early twentieth century phenom-
enology, to its logical conclusion.
128. In Kennedy’s formulation “[t]he phenomenological account is supposed to persuade the
reader that jurists often destabilize their initial experience of legal compulsion by legal work.”
Kennedy, “Introduction”, supra note 43 at 3. At other times, the opposite happens: “The goal is
to describe convincingly the way in which the judge’s personal convictions about justice enter
into the decision process. They do so in my account, as what orients the direction of the judge’s
work of interpretation.” Ibid at 4.
129. Ibid at 18.
130. Duncan Kennedy, “Freedom and Constraint” in D Kennedy, supra note 14 at 24.
131. Ibid at 18.
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222 Zreik
allowing the realization of his personal agenda.”132 If this is Kennedy’s position,

then the difference between him and Dworkin turns not on the fact of creativity,
work, and constrains by legal materials—as they both agree on those; rather, it
turns on the fact that Kennedy will insist that judges have a ‘personal agenda’ or
personal purpose, while Dworkin tends to water down this important fact.
3.2 Kennedy on Determinacy
All of this brings me to Kennedy’s take on determinacy. As we saw, Dworkin’s

position on determinacy is complicated: he never makes a clear argument that
legal questions have one objective answer, so his determinacy is not strongly
determined.
I will now formulate Kennedy’s take on determinacy, in order to show that
while there is a clear difference between the two thinkers, Kennedy’s argument
is actually far from being that all cases can be manipulated, and always allow
one to argue either way, resulting in radical indeterminacy in the process of legal
reasoning. Kennedy’s phenomenological approach stands in the way here and
does not in fact allow him to make such an ontologically sweeping argument
about the nature of legal materials ‘themselves.’ Kennedy suggests that rules
can sometimes work and can be ready for application. He denies any global ar-
gument based on theories of Wittgenstein or on Derrida that rules can never be
applied to concrete particular cases. He writes:
I believe that it is possible to communicate with another person so that we both
have roughly same rule in mind […] it is sometimes meaningful to describe what
has happened as we “applied the rule to the facts”.133
Kennedy thus avoids sweeping arguments that general rules do not decide cases,
as they sometimes do.134 But the “they sometimes do” is not something that we
can predict beforehand without entering practice itself, without struggling with
the materials, working on them, trying to twist them, use them, abuse them etc.
The closure, or the application, is just something that the judge may experience
from within practice, but one will not be able to identify anything global, objec-
tive, and external to the practice itself. It is not clear why the judge sometimes
feels or experiences closure and application, while at other times, he does not.135
So it would be absurd, in Kennedy’s view, to argue categorically that rule appli-
cation can never happen: that would be as dogmatic as arguing that it always hap-
pens. For this reason, he sums up his position by arguing that “[r]ule application

133. Kennedy, “Semiotics”, supra note 14 at 82.
134. Kennedy goes out of his way to distinguish his position from those positions based on theo-
ries of language or meaning like those of Derrida or Wittgenstein that perceive legal indeter-
minacy as just one particular case of the insight that “[n]o rule can determine the scope of its
own application.” Ibid at 142-45.
135. “[F]rom my position inside the practice of legal argument, I can’t say anything one way or
another about this fancy argument. I have no way of knowing, from inside the practice, why
it is that sometimes the field gives way but sometimes refuses to budge at all. From inside the
practice of argument, I just don’t know.” Kennedy, “Semiotics”, supra note 14 at 83.
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is something that does happen, but I never experience it as something that has to
happen.”136 Rules always appear in the process of being applied by someone, to
a particular case, and as such, the same rule “may at any given moment appear
objective; but at the next moment it may appear manipulable.”137

Given this understanding of law and legal reasoning, it should not come as a
surprise that Kennedy asserts in his later writings that “I make no general asser-
tion that law is always indeterminate, or that it is both possible to argue both sides
of a question.”138 Kennedy does not support elaborate theories of deconstruction
that claim we can deconstruct every rule and every principle: “Deconstruction
is rather an event brought about by someone doing the work of deconstruction:
whether it will ‘happen’ in any given case cannot be known in advance, no matter
how sure the de-constructor may feel that he or she will succeed.”139

Rule application, necessity, closure, do happen, but they happen as an ‘effect’,
as product of the judge’s experience, and as the end result of the struggle with the
materials—as something that appears at the end of a process, not as something
primordial that dictates the result from the start.
This understanding allows Kennedy to read other legal theorists as having
something in common, despite the first impression that they may appear to be
holding opposite or contradictory positions. Kennedy applies his insights to ana-
lyze and compare the work of both Hart and Kelsen.140 Anyone acquainted with
Hart’s and Kelsen’s theories of interpretation141 is aware of the difference be-
tween the two. Hart makes the distinction between ‘core’ and ‘penumbra’ of the
norm, where at the ‘core’ of the norm, rule application takes place without strong
discretion, and at the penumbra the judge has a strong discretion and has to act as
deputy legislator. Kelsen, on the other hand, thinks that every norm has several
competing reasonable interpretations, and that there is no scientific legal way
to decide which the better interpretation of the norm is. In this view, there is a
certain box within which all interpretations are reasonable and equally valid for
Kelsen, and the judge has to choose among them. For Kelsen, this choice must
be political by its nature, as the judge is left without guidance. To any reader,
there is a clear difference between the two approaches: for Kelsen, even within
the box, the choice is political and unavoidable, but for Hart, there are cases
within the ‘core’ where rule application seems simply to follow without discre-
tion. What Kennedy insists on noting, through his phenomenological approach,
is that both Kelsen and Hart assume the ontologically separate independence of
the rule, and that both assume that they can make a distinction between what is
136. Ibid.
137. Ibid at 84.
138. Ibid at 139. In a later piece he makes it even more clear by arguing that “CLS rejects both
the idea of global indeterminacy and the idea that there is always a correct interpretation,
however obscure or difficult to arrive at. But it also rejects the idea that determinacy and inde-
terminacy are ‘qualities’ or ‘attributes’ inherent in the norm, independently of the work of the
interpreter.”Ibid at 160. Kennedy, “Phenomenological Alternative”, supra note 48, 153 at 160.
139. Kennedy, “Semiotics”, supra note 14 at 143.
140. See Kennedy, “Phenomenological Alternative”, supra note 48.
141. See mainly HLA Hart, The Concept of Law, supra note 32 at 124-54 (on rule skepticism);
and Kelsen, Pure Theory of Law, supra note 63 at 348-56 (on interpretation).
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224 Zreik
inside the box and what lies outside the box in the case of Kelsen, or in the ‘core’
and the ‘penumbra’ in Hart’s case. But for Kennedy, these distinctions do not
make any sense, since they assume the existence of the legal materials indepen-
dent of the judge’s work, struggle, or strategic reading of the materials.142
3.3 Kennedy, Legal Materials and Phenomenology
Though phenomenology seems to be the last word of late Kennedy, I still think
that late Kennedy is better understood in relation to early Kennedy. One may
mark the article “Roll over Beethoven”143 as signaling this change. Let’s make
it clear from the outset: this is not a major change, but rather a change in em-
phasis and level of sophistication to avoid critiques by other legal theorists. In
the phenomenological approach, Kennedy explains, “there is no outside per-
spective from which to judge that a period experiences operativeness in con-
cepts that are ‘really’ so vague or incoherent as to be useless, or, conversely,
that period failed to understand the ‘underlying logic’ of legal relations.”144 In
this approach, it becomes useless to speak of abuse of deduction in general
or legal formalism in the abstract, as if we have a clear method to distinguish
cases of right deduction from cases where deduction is abused. Kennedy ex-
plains: “In my version, all systems are deductive but they vary in the level
of abstraction at which the deduction is experienced as convincing. This is a
phenomenological criterion because we distinguish systems according to how
the participants experience them, rather than according to whether they really
are or are not using deduction correctly.”145
Still, I want to argue, the late Kennedy needs the “supplement” of ear-
ly Kennedy, and it is with the help of the early Kennedy that late Kennedy
makes more sense. By putting some emphasis on early Kennedy, I aim to push
Kennedy in the direction of Dworkin. Although phenomenology already plays
a major role early on in Kennedy’s project,146 I nevertheless want to argue
that it plays an even greater role in late Kennedy. While early Kennedy deals
142. “For CLS, the important point is that the anti-formalism of H/K presupposes the schema ac-
cording to which every case is located either in the area of determinacy or in the penumbra or
frame.” Kennedy, “Phenomenological Alternative”, supra note 48 at 157.
143. Duncan Kennedy & Peter Gabel, “Roll Over Beethoven” (1984) 36:1-2 Stan L Rev at 1. In
this dialogue with Peter Gabel, Kennedy withdraws from his early ‘Fundamental Contradiction’
thesis and chooses rather a more minimalist internal local critique. He explains this retreat as
being driven by a fear of overgeneralization of concepts that may lead to frozen and abstract
theory, while expressing his distaste of privileged concepts that pretend to do all the analysis
for us. In fact, it is about the same time that Kennedy publishes his long paper “Freedom and
Constraint in Adjudication: A Critical Phenomenology”, supra note 130. It is telling that in a
recent book that Duncan published that collects several of his articles titled Legal Reasoning:
Collected Essays, supra note 14, (to which I refer very often in this paper), he chose not to
include his text on Blackstone, nor his celebrated “Form and Substance”. This might have been
for technical reasons due to the length of these papers, but I do think that there is more to it than
that. Kennedy prefers the local, limited, phenomenological critique.
144. Kennedy, Rise and Fall, supra note 23 at xviii.
145. Ibid. Kennedy writes “[w]hat then can be said of the body of legal materials ‘itself’ consid-
ered in isolation from the particular context within which particular judges experience it? Not
much.” Kennedy, “Freedom and Constraint”, supra note 130 at 60.
146. Kennedy, Rise and Fall, supra note 23 at Introduction.
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with the question of how judges decide cases, much of his effort goes else-
where—to the ‘nature’ of legal materials themselves. The reader of Kennedy’s
two early major papers “Form and Substance in Private Law Adjudication”147
and “Blackstone Commentary”148 can discern a certain focus on the conflictual
nature of the legal materials themselves: ‘Individualism’ and ‘Altruism’, be-
ing alone and being with others. These two poles push and pull us to different
directions all the time, and it is futile to think that we can find a rational way
to create equilibrium between the two; any way we decide to draw the line
is a compromise that requires decision. This aspect of the works of Critical
Legal Studies attracted perhaps most of the attention, as if CLS and Kennedy
were arguing that legal materials by their nature are always indeterminate and
conflictual to the point that it does not make sense to speak of legal reasoning
as a process that can lead us to the ‘right’ answer. In this regard, if Dworkin
maintains a distinction between policy and principle and thinks that we can
reach a closure by weighting and balancing between the different principles,
Kennedy clearly questions that: it would be naïve to think that principles can
bring us to any closure, if rules are not able to achieve this. Principles are as
undetermined, indeterminate and conflicted as rules are.
I believe that reading early Kennedy, with a touch more emphasis on legal
materials, helps us accept the later Kennedy, who focuses on the phenomenology
of decision making by judges. In this regard, one can discern is a double move-
ment in the work of Kennedy, which joins together into a complete picture: on the
one hand, Kennedy stresses the active role of the judge (subject), and on the other
hand he shows the open/manipulative nature of the legal materials themselves
(object). The outcome of this double movement is a new totality of subject and
object entangled together, and mutually constitutive of each other in a restless
movement. Kennedy does not reach this conclusion as a matter of philosophical
reflection, but rather by reflecting on legal materials and the way judges treat
these materials.149 Kennedy’s phenomenology appears on the surface ‘after’ an at-
tempt to struggle with the legal materials themselves, subduing them at times and
surrendering to them at others. In this regard, phenomenology ends up being the
concept that describes Kennedy’s experience in tinkering with the legal materials,
rather than a philosophical approach that guides his project; in phenomenology,
Kennedy finally finds the vocabulary to capture the nature of his struggle with the
legal materials. In this sense, one does not need to commit beforehand to Hegel’s,
Sartre or Husserl’s phenomenology to accept Kennedy’s take on the nature of
legal reasoning and interpretation. Clearly, Kennedy was inspired by Sartre’s phe-
nomenology—as he himself testifies150—but the insights of his analysis stands
on their own, and they do so because they work closely and intimately with the
147. Kennedy, “Form and Substance”, supra note 122.

148. Kennedy, “Blackstone Commentary”, supra note 19.
149. The immediate candidate for such a phenomenology is the one introduced by Hegel in the
phenomenology of spirit. In fact, in many places one can discern many echoes of Hegel in
Kennedy’s writings, albeit with a major difference: Kennedy’s phenomenological approach
‘emerges’ from the materials after he tried hopelessly to subdue them.
150. See his footnote to his paper “Freedom and Constraint”, supra note 130 at 8.
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226 Zreik
legal materials themselves.151 The work and effort that early Kennedy invested in
exploring the legal materials ‘themselves’ plays an important role in the overall
project, despite the distance that Kennedy stresses later in his writings.
But to complete the picture, we need Dworkin again. And I want to argue that
phenomenology plays also an increasing role in Dworkin’s project throughout
the years. If the No-Right-Answer in Kennedy shifts from being a statement
about the nature of the legal materials, to becoming more of a phenomenology
of judging, something similar happens to Dworkin’s thesis regarding the right
answer: it becomes less a statement about the nature of the legal and moral mate-
rials and becomes—among other things—a statement about the phenomenology
of judging.152
3.4 Kennedy On the Relative Autonomy of Law
It is often thought that Kennedy collapses the distinction between law and poli-
tics completely, as if law was just another form of politics. That is true, but only
partially so. We saw above that for Kennedy, law is always penetrated by politics
and ideology, but that does not mean that law is reducible to either, as if there was
no unique domain called ‘law’. This is clearly not a position that Kennedy will
subscribe to in any way. In fact, one of the distinguishing features of Kennedy’s
work within the CLS tradition is this exact insistence on what he labeled ‘Legal
Consciousness’,153 in contrast to the work of Morton Horowitz, for example,
which bears some Marxist influences, in particular, the concepts of base and
superstructure.154 Kennedy wants to insist on the relative autonomy of law and
legal thought, though it is not always easy to pin down exactly what this means,
in part because Kennedy leaves it intentionally vague. On the one hand, legal
consciousness is a sub-system within consciousness.
151. In a figurative manner I would say that Kennedy’s analysis of legal reasoning can help law-
yers in understanding what phenomenology is all about, more than phenomenology can help
us to understand legal reasoning itself.
152. See Dworkin, Law’s Empire, supra note 7 at 235 (discussion of Hercules experience). See his
section on disagreement in law within Law’s Empire, ibid at 4-6 (where he starts from the phe-
nomenology of judging). In a more recent paper, he resorts to phenomenology to establish the
truth of moral arguments while denying an Archimedean basis: “I have considerable evidence
in my own experience—as I think you have in yours—of a capacity to make moral judgments
that bring conviction, that are mainly durable, that agree with great many others.” Dworkin,
“Objectivity and Truth”, supra note 89 at 118. In another recent lecture titled “Is There Truth
in Interpretation? Law Literature and History”, Dworkin states:
We disagree, then we level, and we are ambivalent about that disagreement. Is there a
truth to be heard? Are we contesting what the truth is? That is to use a grand phrase, that
is the phenomenology of most lawyers: we read, we puzzle, we puzzle again, then we
come to a judgment, and it is a judgment, not a choice, does not feel like a preference,
it feels like a judgment.
See Library of Congress, “Is There Truth in Interpretation? Law, Literature and History”
(December 17, 2009) YouTube, online: www.youtube.com/watch?v=742JyiqLhuk at 14:13
-15:01.
153. This is a position Kennedy has held since his work on Rise and Fall, supra note 23.
154. Morton Horowitz, The Transformation of American Law 1870-1960 (Oxford University
Press, 1992). Horowitz assigns an explanatory role to economics and politics in the devel-
opment of law and legal thought that Kennedy will not endorse, keeping a further distance
between legal thought and economic/political reality.
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A sub-system is distinct from the larger entity, utilizing a small set of conceptual
building blocks, along with small set of typical arguments as to how the concepts
should be applied, to produce results that seem to the jurists involved to have a
right level of coherence within and across legal fields.155
Now, this is clearly an image of law that does not consider law and politics as just
one and the same domain. In fact, Kennedy states clearly that he thinks that legal
thought “is distinguishable from other bodies of thought, say economic and po-
litical and social and religious thought, and also ‘relatively autonomous’ from the
interests, material and ideal, that impel social actors to take positions about what
the law in particular cases is or ought to be.”156 This is a position that Kennedy
adopts early on, and he wants to avoid any Marxist style of determinism that can
‘explain’ law simply by referring it to interest structures, and powers outside law.
In his study of the Blackstone Commentary, he focuses on legal thought itself
while “ignoring the question of what brings a legal consciousness into being,
what causes it to change and what effects it has on the actions of those who live
it.”157 But why that severing of legal thought from its environment? Kennedy’s
answer is that “we need to understand far more than we [now] do about the con-
tent and [the] internal structure of legal thought, before we can hope to link it in
any convincing way to other aspects of social, political, or economic life.”158 The
Kennedy of these passages is Kennedy the lawyer, who wants to argue for the
importance, complexity, and richness of legal doctrine, and for legal conscious-
ness as being relatively autonomous.159 In this regard, Kennedy wants to insist
that sometimes law and legal doctrine act according to their own ‘logic’, without
being determined from the outside.
Let me pause here to indicate some level of homology in the form of arguments
of both Dworkin and Kennedy. Dworkin seems to let law loose, an open-ended
project penetrated by moral principles, facing the accusation of manipulability.
But Dworkin is swift to dissolve this superficial picture by limiting principles
to legal principles, drawing boundaries between law and policy, between rights
155. Kennedy, Rise and Fall, supra note 23 at xiv.

156. Ibid at x.
157. Kennedy, “Blackstone Commentary”, supra note 19 at 220.
158. Ibid at 220-21.
159. The question of autonomy and ‘relative autonomy’ has a very long history, beginning with
Kant and the autonomy of reason as the model for other models of autonomy. But the idea
of Relative Autonomy has a special history in Marxist and neo-Marxist thought, aiming to
constrain the classical Marxist interpretation that holds a determinist view of relation be-
tween base and superstructure. The Relative Autonomy thesis has it both ways, it allows some
level of determinism, but places limits on this, while allowing autonomy and also placing a
limit on this autonomy as well. For a classical formulation of the idea in Marxist thought,
see Louis Althusser, For Marx, translated by Ben Brewster (Pantheon Books, 1969). For a
more specific account of the relative autonomy of law, see EP Thompson, Whigs and Hunters:
The Origins of the Black Act (Breviary Stuff Publications, 2013 at Afterword. Some within
CLS argue for the relative autonomy of law: see Karl Klare, “Law-Making as Praxis” (1979)
40:123-25 Telos. For a more recent articulation, see Dennis Davis, “Duncan Kennedy’s A
Critique of Adjudication: Challenge to The Business as Usual Approach of South African
Lawyers” (2000) 117:4 South African LJ 697. (To some extent, both Klare and Dennis think
that Kennedy underestimates the universal potential of law.) For a classical position of deter-
minism between economy and superstructure see GA Cohen, Karl Marx’s Theory of History
(Princeton University Press, 2001) at Chapter 6 and 8.
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228 Zreik
and goals and thus establishing the boundary between law and non-law. At first
reading, one might think that Kennedy also opens the line between law and poli-
tics/ideology, but closer reading will reveal immediately that he holds law to be
‘separate’ from politics, or at least as not entirely collapsing into it. Rather, he
thinks that “we believe that these things mutually affect each other and that each
level has its resistance, its impermeability, its opacity, none is simple transparent
reflection or product of another level”.160 Still, there is a difference.
3.5 Kennedy on Responsibility
Dworkin has stressed the question of responsibility of the judge. The question
arises in relation to Kennedy: if neither the legal materials, nor principles or pol-
icy, nor ideology bring closure, then what does? and how does closure happen? If
the necessity that judges experience is a ‘false necessity’, then what is the judge’s
responsibility, and how is it different from the judge’s responsibility in Dworkin?
Kennedy wants the judges to be aware of the fact that they have discretion.
“The jurist has to decide in every case how to orient his or her work or non-work
[…] the actors/agent has to decide, according to his or her personal convictions,
in which direction to work.”161 Kennedy wants judges to remember that they are
“constantly exercising a denied discretion in choosing a work strategy. Once
I have acknowledged this, my thought is that I have to start taking responsi-
bility for the discretion.” The responsibility that Kennedy is referring to is the
Weberian sense of responsibility, meaning “responsibility for all the consequenc-
es, without being able to appeal to a coherent socially accepted set of criteria of
justification.”162 Given that both use the term ‘responsibility’, the difference lies
in the different ways they understand the term, and the object of responsibility. In
Dworkin responsibility means responsibility to the ‘judgment’, but in Kennedy it
means responsibility to the ‘decision’. What, then, is the nature of the difference
between decision and judgment?
4. The Structural Commonalities and the Persisting Differences Instead

of Conclusion
First, I would like to refine and to put in perspective the ideas and approaches
that we tend to associate with each of the two thinkers.
Dworkin’s understanding of objectivity ranges from deduction, to likelihood,
and to giving reasons for a practical decision. At any case, it is not strong ob-
jectivity. On the other hand, Kennedy’s thesis of indeterminacy is also not as
it sounds: the phenomenological account stands in the way of his making any
global claim about indeterminacy in general. Sometimes, the judges simply ex-
perience determinacy and closure and sometimes rules are just operative and
160. Hackney, Legal Intellectuals, supra note 23 at 39.

162. Ibid at 8.
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deduction works, or at least we experience that it does. Legal materials are not
always manipulated, and judges sometimes feel constrained. For Kennedy, law
and politics are not one and the same; in a certain sense they are separate, but
unlike Dworkin, he does not know exactly how to find out where the boundary
ends. At the end of the day, Kennedy is not particularly subjectivist, and Dworkin
is not particularly objectivist.
On the other hand, we also saw some common themes. At the expense of
some reductionism, I want to sum up some of the views of law that both theorists
share, to prepare the ground for a refined way of elucidating the deep differences
that they still have.
Law is not merely a collection of rules: background principles, values, and
policies, play a major law in law and adjudicating. These are already part of
legal reasoning. Both theorists think that law is not a collection of explicit legal
materials but agree that there is always an implicit body of law. Law is never
exhausted by what has been written or said. Both have a unified theory of hard
and easy cases, and they view law as totality. Both hold theories of law that
have an intimate relation between their vision of the objectivity/ non-objectivity
within law, and the objectivity/non-objectivity of ideology/morals in generals.
The same is true for freedom and constraint in adjudication: both think in terms
of freedom and constraints. The judge is not on the receptive side—rather, like
the Kantian pupil of the Critique of Pure Reason one asks questions and inter-
rogates the legal materials. The judge is neither fully free, nor fully constrained.
For both of them, interpretation is purposive activity, and the interpreter works
on legal materials armed with purpose.
This leads me to an important commonality that lies on the surface but hides a
deeper divide, and, I think, contains a clue as to the nature of some of the deeper
divides between Kennedy and Dworkin. This is the question of the internal and
external point of view.
As we explained above, both Kennedy and Dworkin are internalist—they
eschew any Archimedean theory, focusing rather on legal practice itself. Both
resort to the phenomenology of judging as part of their arguments, and both take
the internal point of view extremely seriously.
I think that issue of internal/external needs to be elaborated in order to clarify
the difference between Dworkin and Kennedy. In many ways, Dworkin does take
the internal point of view already taken by Hart.163 Kennedy takes the internal
perspective as well, but there is a difference between the two internal points of
view that each of them inhabits. Dworkin—following Hart—takes the internal
point of view in order to make sense of the participants’ understanding of the
practice of law. But as we know, Hart’s internal point of view aims, among other
things, at solve the problem of normativity of law, which he thought the theory
163. HLA Hart introduces the internal point of view in reaction to Austin jurisprudence that thinks
of law only from the point view of the external observer. Such an observer “is content merely
to record the regularities of the observable behavior in which conformity with the rules partly
consists and those further regularities.” But such an account “does not give an account of the
manner in which members of the group who accept the rules view their own regular behavior.”
Hart, The Concept of Law, supra note 32 at 89.
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230 Zreik
of Austin could not and is not able to resolve.164 Thus, the turn to the internal has
not only one mission—it has two: one is associated with descriptive sociology,
which claims that in any accurate description of the practice must make sense
from the point view of the participants themselves, while the second is norma-
tive: the participants in the practice have good (normative) reasons to comply
with its rules.
Now, in what sense Dworkin is internal? And how does his internal point dif-
fer from that of Kennedy?
As we saw above, the internal point of view that starts with Hart ends up
with Dworkin as mainly a normative point of view, if not to say the moral point
of view. As Stephen Perry succinctly notes, “the seeds of Dworkin’s strong
version of interpretivism where sown by Hart himself.”165 With Hart, the in-
ternal point of view was playing some normative role, but it was mainly part
of a sociological understanding of law.166 With Dworkin, the main question of
jurisprudence ends up being the question of how judges should decide cases.
No wonder that jurisprudence for Dworkin ends up mainly as something about
interpretation practiced by the judge. For Dworkin, legal theorists became en-
gaged in the same sort of activity as those of judges, “which is a form of practi-
cal reasoning.”167

I take it that one of the ways to account for the differences between Dworkin
and Kennedy lies in their attitudes to this issue. While Kennedy is clearly com-
mitted to the internal point of view, he is not committed to the practical question
of how judges should decide cases. In many ways, Kennedy’s phenomenology
of adjudication hopes to provide a close analysis of the experience of judging,
aimed at discovering the process itself, and describing it a refined manner.168 A
reader of Kennedy does not experience the normative practical pressure as to
how the judge should decide, here and now. Kennedy takes his time understand-
ing what is going on before he decides to move further and say something about
the decision made by the judge.169 Kennedy is more interested in exposing and
164. After Hart had introduced the internal point of view as way to understand the practice from
the point view of its participants, he adds another dimension and assigns further role for the
internal point of view. The external “treats the (traffic) light merely as natural sign that people
will behave in certain ways, as clouds are the sign that rain will come. In so doing he will miss
out the whole dimension of the social life of those whom he is watching, since for them the
red light is not merely a sign that others will stop: they look upon it as a signal for them to
stop, and so as a reason for stopping.” Hart, The Concept of Law, supra note 32 at 90. This is
the normative aspect of the internal point of view: it gives reasons for following the rule. The
internal explanatory, and the internal normative got mixed within Hart account.
165. Stephen Perry, “Interpretation and Methodology in Legal Theory” in Andrei Marmor, supra
note 55 at 101.
166. Hart describes his book as “an essay in descriptive sociology”, see The Concept of Law,
supra note 32 at Preface.
167. Perry, supra note 165 at 133.
168. Kennedy would call this being ‘true’ to truth telling impulse, even while denying the pos-
sibility of ‘truth’. Kennedy, Critique of Adjudication, supra note 16 at 358.
169. See Pier Schlag on the need to suspend this urge to ask questions with a normative tone:
“What needs to be done and where we should go? The first thing is to figure first where we
are.” Pier Schlag, “Normativity and the Politics of Form” in P Schlag, S Smith & P Campos,
supra note 8 at 32-33.
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demystifying the judicial process that conveys false necessity, the false necessity
which “is always obstacle to emancipation”.170 While Kennedy, in this sense, is
sitting within the practice, he does not collapse the question of jurisprudence into
the question of interpretation by the judge. Kennedy is far from being unique
on that point, as many have intended to maintain the difference between expla-
nation and description on the one hand, and interpretation on the other.171 But
what may well make him unique is the strong combination he offers of internal
understanding together with a descriptive account of law. That is not to say that
Kennedy has interest only in theoretical reasoning, as such, and lacks any inter-
est in the practical. He obviously has an interest in both—it would be surprising
if he didn’t—but the issue is that he thinks of the judge in political terms, not
only legal terms. The judge is still a citizen, and part of the world of politics.
The judge can act either by politicization of the legal discourse, or simply by
withdrawing from the system whenever the judge feels “there is nothing else to
do” apart from “politicization or hypocrisy”.172 On the other hand, it is clear that
Dworkin is in no rush to give up on the gravity of the past and to quit the system.
He nevertheless recognizes that at a certain point, the judge must become aware
that he can’t achieve anything within the existing legal system, principally in the
case of iniquitous or ‘evil’ legal systems. What then? For Dworkin, this is simply
the time for more drastic measures; time for revolution, no more, no less.173 In
this sense, both Dworkin and Kennedy, think that at some point, one needs to
leave the system, and they differ on two things: when to leave the system, and
the attitude one should adopt while still within the system.
This inquiry leads me to narrow the gap between the two, not in order to
eliminate it but rather to illuminate it in such a way that it becomes clearer and
we become aware of the stakes of the debate. Before I spell out the main differ-
ence, let me add some of the caveats that Kennedy offers throughout his writings,
where he aims to set the limits of his theory and to avoid misunderstandings.
First, Kennedy avoids dogmatic global skepticism. Though he is skeptical
in regard to concepts of objectivity, the subject, and representation, he is also
skeptical of any possibility of proving that they do not exist. “I just don’t think
anyone has shown it so far, but I could be wrong. I’ve lost faith in the enterprise
of trying to show it.”174 Trying to prove their absence is as dogmatic as the at-
tempt to show their presence.
Second, Kennedy denies and rejects the charge of nihilism. He, and others
like him, make moral and ethical choices all the time, and commit themselves to
170. Kennedy, “Introduction”, supra note 43 at 6 and Legal Reasoning, supra note 14 at 6.
171. See, for example, Michael Moore, “Interpreting Interpretation” in Andrei Marmor, ed, supra
note 55 at 29.
172. Kennedy, Critique of Adjudication, supra note 16 at 374.
173. “How does this relate to bad or evil legal systems, like the Apartheid legal system? Such a
legal system is one in which the process values that we are drawn to respect could be respected
only at the cost of assigning principles to that legal system which are wholly disreputable
principles. When that is the best we can do, then, in my view, legality has nothing further to
offer us. Then it is time for revolution, it is time for dramatic measures, because we reached
the point that legality can no longer serve.” Dworkin, “Keynote Address”, supra note 9 at 16.
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232 Zreik
projects, but he argues that he is simply not able to demonstrate the correctness
of those choices.175

Third, Kennedy sets clear limits on the role of critique, and does not dispense
with the category of ‘faith’. Critique does not leave us with nothing; there is
always something that survives critique, something that we can have ‘faith’ in.
Critique changes our feeling of self-righteousness.176

Four, despite Kennedy’s clear aversion to theory and abstractions, he is fully
aware that we are not able to stop—and that we perhaps should not stop—writ-
ing theory but notes that “it just means giving up the expectation of rightness in
the doing”.177
Five, when it comes to his critique of rights, Kennedy is not against the deploy-
ment of the discourse of rights in courts or public debates. Sometimes it might
work, though at others it may not. But he is in favor of this deployment “as long
as the deployer has in mind the element of bad faith in his or her performance”.178

I think these smart caveats make Kennedy’s argument more immune to much
of the critique directed against him and CLS in general. But this immunity comes
at the expense of the thinness of his theory. The reader of Kennedy’s work feels
the influence of the first part of Kant’s Critique of Pure Reason, in which Kant
sets the limits beyond which reason should not step. Dworkin, on the other hand,
continues to read the second half of the first Critique, where the frustrated hopes
of theoretical reason are redirected to moral reasoning. It seems, however that
Kennedy does not pursue this path, appearing instead to move to aesthetics. No
wonder that in much of his writings, and the above quotation can testify to this,
he deploys aesthetic terminology of self-fashioning, ways of living and experi-
encing life. His work is replete with terms such as anxiety, ecstasy, irony, libera-
tion, enticement, transgression, and so on.179
Conclusion
The aim of this paper was modest: it aimed to put together representatives of
what seemed to be two opposing strands in legal theory: Duncan Kennedy and
Ronald Dworkin. I tried to show that beneath the image of opposition there are
175. “Those of us who are not moral realists are used to committing ourselves to projects, and
deciding on strategies, on the basis of […] balancing of conflicting ethical and practical con-
siderations. In the end [,] we make a leap into commitment or action. That we don’t believe we
can demonstrate the correctness of our choices doesn’t make us nihilists….” Ibid at 362.
176. “We misunderstand internal critique if we imagine that it might lead to a situation in which
we had lost faith in ‘everything’, so that we just wouldn’t know what to believe in or do.
Critique changes our attitude toward a particular theory that generated a particular sentiment
of rightness. […] It seems odd to me to suppose that we could ever, conceivably, be without
resources of this kind, even if each of us was a veritable Hercules of critical destruction.” Ibid.
177. Ibid at 361.
179. “But internal critique is part of the project when it is aimed at the pleasure of shedding
Reason’s dead skin.” Ibid at 344; a “transgressive artifact […] ‘shatters’ the forms of ‘proper’
expression in order to express something that those forms suppressed.” Ibid at 342. “It deploys
internal critique to loosen the sense of closure or necessity that legal and rights analyses try to
generate.” Ibid. “I don’t think I can prove that such an attitude is wrong. My strategy aims only
to undermine and entice.” Ibid at 340.
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many commonalities that allows us to read them together. These commonalities

can testify to some of the common threads of legal theory and its common un-
derpinning despite the apparent opposition. Furthermore, I tried to destabilize the
common image of each: Dworkin as holding an objectivist theory of determinacy
and Kennedy as champion of indeterminacy. In the paper I tried to modify this
stark image of opposition. This does not mean that I intended to eliminate the
difference but between the two rather to have a better grasp of it.
In this sense, we could say that Kennedy and Dworkin have different sensi-
bilities on the one hand, and different projects, on the other. They do compete on
certain levels, but on other levels they simply speak across each other, dealing
with different levels of the legal experience. In certain ways, Kennedy locates the
sense of objectivity, closure, rightness as the enemy,180 while Dworkin views this
the other way around: these could be liberating, or at least deployed for progres-
sive politics. Kennedy will not object to this deployment but will ask demand
awareness of the fact that the objectivity that you are deploying does not exist. In
this regard we can say that Dworkin’s theory of interpretation can help us make
moves within the legal field, but Kennedy tells us how to reflect on and how to
feel about these moves. We are not only practitioners; we can also take a step
away from the practice.
Because of the difference in emphasis, we can view both thinkers as aiming
in part at doing different things and as addressing different audiences. On the
level of descriptive theory, I find Kennedy’s phenomenology more appealing and
more accurate. (In the present paper I will not able to offer any proof for this in
any way or add arguments beyond those presented in the existing literature.)181
Additionally, Kennedy’s descriptive jurisprudence allows him to develop in-
sights about law that are not related to legal reasoning and the role of the judge
but speak about law not only through the eyes of the judge. It seems to me that
one of the most crucial and an important contribution of Kennedy to legal theory
is his insistence on the constitutive role of law: if it is politics all the way down,
it is law all the way up. Law shapes politics and economics as well. Property, the
market, the family: all of these are institutions that are constituted and shaped by
law.182 What enables this insight, as I see it, is both the descriptive ‘truth-telling
impulse’, together with the internal take on law. In this sense, the advantage of
Kennedy’s take on law is the scope that he assigns to legal theory, which goes
beyond being an advisory role to the judge.
I take one of the major differences between both thinkers to lie in Dworkin’s
insistence on the centrality and priority of practical reason. Dworkin can argue
that regardless of the better descriptive phenomenology of the judging process
180. In fact, he clearly states that “[t]he pretension to objectivity as an enemy.” Kennedy, Critique
of Adjudication, supra note 16 at 341.
181. I can refer the readers to the strong arguments brought by Waldron, “Did Dworkin Ever
Answer the Crits?” in Scott Hershovitz, supra note 49.
182. This is a theme recurrent in Kennedy’s writings and here are just a few relevant examples
of them: Duncan Kennedy, “The Stakes of Law, or Hale and Foucault!” (1991) XV:4 Legal
Studies Forum; Duncan Kennedy, “Three Globalizations of Law and Legal Thought: 1850-
2000” in DM Trubek & A Santos, eds, The New Law and Economic Development: A Critical
Reader (Cambridge University Press, 2006) 19 at 19-20.
09_Zreik_40.indd 233 1/16/19 12:43 PM

234 Zreik
itself, it is desirable that we can hold on to this image of the judge—it is better
for the judge personally and for the community at large. Kennedy—one will
object—does not have a normative theory of adjudication, and for him the judge
is just another policy-maker who makes choices. Not only just that, but the con-
cept of mere choice or decision seems incoherent. What does it mean to have a
decision that seems to stand outside the gravitational force of normative consid-
erations? The Weberian responsibility that Kennedy is referring to is not much
different from what I would call judgment. I have not claimed that there are
logical entailments between the premises and the result, and Kennedy does not
really think that it is just a matter of preferences or whims. The difference is that
my theory enjoins the judge to dig harder, while his does not. Kennedy owes
us a theory of decision and an explanation of how it is different from making a
judgment.
Dworkin’s analysis of legal reasoning and practical reasoning in general in-
vites images of coherence and of the compatibility, despite the competition, of
values in general. This image stands in contrast to the one Kennedy portrays in
his writings: an aesthetic of pain and rupture, a split and unredeemed self, full of
wounds that can never be healed, and wounds that one should embrace instead
of hiding. There is something aesthetic about the difference between the two.
Saying aesthetic is not intended to play down this difference; rather, it is intended
to portray it as comprehensive and conveying a different outlook on life, politics
and law. By using the word ‘aesthetic’ I mean to suggest that the difference be-
tween the two theorists is unbridgeable. There is no way to convince one of them
to adopt the other’s point of view, for the simple reason that they are driven by
different drives, visions of life, pleasures, and senses of what makes life interest-
ing and worth living.
09_Zreik_40.indd 234 1/16/19 12:43 PM

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Canadian Journal of Law & Jurisprudence XXXII No.

1 February 2019, 195-234 195

Ronald Dworkin and Duncan Kennedy:

The Canadian Journal of Law & Jurisprudence February 2019

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10. See, Dworkin, Law’s Empire, supra note 7 at 225-75.

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ideals of law, Kennedy thinks of law mainly as “an instrument of apology—an

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small”27 avoiding generalizations or abstractions. Moyn has an explanation for

1. Common themes and sensibilities:

1.1 The Thickness of Law—Or the politico-moral Stakes of Law

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ideology.35 In a figurative way, we can argue that if Dworkin has managed to

1.2 The Always-already Approach

When Dworkin discusses the role of moral/political principles in Law’s Empire38

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1.3 Theorist Across the Board

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outside it—in morality/politics.51 This can be clearly distinguished from a posi-

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2.1 On Objectivity, its Meaning and its Limits

But what does Dworkin mean by this?

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2.2 Right Answer Thesis

2.2.1 As Fact or as Likelihood

2.2.2 Right Answer as Deduction:

One way to understand Dworkin’s argument would be view it as a deduction in

61. Dworkin, “No Right Answer”, supra note 6 at 143.

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Dworkin makes a similar argument regarding the nature of disagreement be-

2.2.3 Right Answer as Regulative Idea or Practical Reason

64. Dworkin, “Interpretation”, supra note 5 at 167.

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At other times, Dworkin uses the terminology of “responsibility”:

68. Dworkin, “Hard Cases”, supra note 3 at 81.

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2.2.4 Right Answer as More Than Opinion-Persistence of Reasons

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78. Dworkin, “The Model of Rules II”, supra note 33 at 68.

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2.3 Anti-Foundational Objectivity

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regard as subjective—just a matter of their tastes.”93 It is basically an emphatic

93. Dworkin, “Objectivity and Truth”, supra note 89 at 98.

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2.4 Freedom and Constraint in Dworkin’s Project of Interpretation

97. Dworkin, “Interpretation”, supra note 5 at 174.

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102. Dworkin, “Interpretation”, supra note 5 at 167.

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105. Dworkin, Law’s Empire, supra note 7 at 266.

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3.1 Working on the Materials-Freedom and Constraints

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of the materials ‘themselves’, because for Kennedy the ‘materials themselves’

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4. The Structural Commonalities and the Persisting Differences Instead