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Ronald Dworkin Jurisprudence

Ronald Dworkin
Jurisprudence PVL3006H
Lesson 2 – September 2021
Golden Circle Tutoring

 Ronald M Dworkin ‘The Model of Rules’ (1967) 35 University of Chicago LR 14 [33]

3 Central Tenets of Positivism that Dworkin identifies:
Legal obligations and rights stems from valid legal rules
(4) Constructive Interpretation and Law as Integrity
 Ronald Dworkin Law’s Empire (1986) at 225-275 [51]**

Principles / Rules

THE MODEL OF RULES

To adequately critique legal positivism, he puts forth the best cases for it (Austin & Hart).

THE MODEL OF RULES

Ronald Dworkin: ‘The Model of Rules’

Section 2. Positivism

1. What, according to Dworkin, are the central tenets of legal positivism?

Dworkin, in ‘The Model of Rules I’, ascribes three tenets to legal positivism:
1. The law of a community is a set of special rules identified by their pedigree not their content
(i.e. by facts about what institutions have done, not the rules’ moral worth).
a. They only looking for (1) a valid legal source and that (2) it was validly created as law.
i. Legal Validity What counts as a valid law in a legal system:
1. Hart RoR
2. Judges inevitably exercise discretion when adjudicating cases in which the rules run out; they
must decide the case on the basis of extra-legal standards.
3. One has a legal duty if, and only if, one is the subject of a legal rule to that effect.
a. To say that someone has a "legal obligation" is to say that his case falls under a valid
legal rule that requires him to do or to forbear from doing something  (To say he has
a legal right, or has a legal power of some sort, or a legal privilege or immunity, is to
assert, in a shorthand way, that others have actual or hypothetical legal obligations to
act or not to act in certain ways towards him.)
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Q Legal Validity
LP not necessarily
Law is a Set of Special Rules
obsessed with valid
Identify How? Look at their pedigree?
legal rules. They
The manner in which they were adopted (statute)
only say the law
or developed (common law or customary rules)
must be from valid
legal sources

Q Judicial Discretion
The law is limited to a set of valid legal rules so if
there are no valid legal rules applicable to a case Link between Legal and
then you can’t say that you decided the case by Moral Obligations
applying the law.
Instead, when the LAW RUNS OUT a Judge needs to
step in and use their discretion (Judicial Discretion). THUS, LEGAL OBLIGATIONS &
When judges do this, they rely on some EXTRA- RIGHTS only stem from VALID
LEGAL standard and manufacture a NEW legal rule or LEGAL RULES and without valid legal
supplement an old one. rules, there can be no legal
obligations.
Section 3. Rules, Principles, and Policies

2. According to Dworkin, ‘when lawyers reason or dispute about legal rights and obligations,
particularly in those hard cases when our problems with these concepts seem most acute, they
make use of standards that do not function as rules, but operate differently as principles, policies,
and other sorts of standards.’
(a) What, according to Dworkin, is the difference between ‘rules’ and ‘principles’?

2 Main Differences:

1. logical distinction:
a. Rules are all-or-nothing or conclusive reasons, requiring a particular decision.
i. For example, suppose a judge adjudicating a case is faced with a binding
precedent stating, ‘If a will is not signed by two witnesses, it is invalid.’
ii. If it is in fact the case that the will was not signed by two witnesses, then the
judge must declare the will to be invalid. If the judge fails to do so then it cannot
be the case that the rule as stated is really part of our law.
iii. Either the rule provides the answer to every case where it has application, or it
is not a valid rule.
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Principles give support to decisions
Principles state reason in favour of legal outcomes… they do not necessitate an outcome.
They’re there lurking beneath the law…
Rules necessitate a particular legal outcome. All or nothing fashion; always applicable.

2. A distinction of Dimension of weight that Principles hold (either heavy or light) which rules do
not.
— Constitutional values can be principles and they have to be afforded weight whereas rules apply
in an all-or-nothing manner.
— “no person may profit from his own wrong”
o This supports Dworkin’s argument that seeking right answers is the point and that there
must be rules AND principles.
o This does not mean judges have a discretion to enforce policy.
o Judges can only use backward looking principles and not forward-looking policies.

Principles = no hierarchy
- It is possible to weigh
o Liberal judge vs orthodox judge
o The right to privacy v the right to dignity
o No hierarchy
VS
Rules = hierarchy
- All-or-nothing fashion
o You may not murder a person.
o Method for determining the hierarchy of rules (The Constitution empowering
legislation, regulation, by-laws)

(b) Is Dworkin correct to claim that lawyers rely not only on rules but also on principles?
- Yes, they do they on both.
- Apply rules and make creative arguments about principles to assist your client.
o Example? What happened in the Barkhuizen Case; specifically, the minority?
 Public Policy FAIRNESS Enforcement of a contractual clause.
 Socio-economic cases?
- Lawyers deal with rules more than principles (apply procedure; property law).
- Advocates deal with principles more and judges deal with it a lot.
Section 4. Principles and the Concept of Law

3. According to Dworkin, there are ‘two very different tacks’ that a legal theory (a concept of law)
might take with regards to the role of principles in adjudication. What are they?
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The role of principles in adjudication:
TACK ONE
- (a) That principles are treated in the same way as rules and are binding on lawyers and judges
when they have to make decisions of legal obligations.
- LAW = Legal Rules & Principles

TACK TWO
- (b) Principles are not treated as binding in the way rules are, but that in hard cases, judges can
reach beyond the rules and use these extra-legal principles at will.
- LAW = Legal rules
Hard cases judges’ resort to extra-legal principles.

4. Why, in Dworkin’s view, is the choice between the two tacks an important one?

The choice between the two tacks has consequences for the analysis of legal obligations, because it is a
choice between two concepts of a legal principle.

Consequences: It basically has an effect on how strongly we condemn judges

1. If we use the first track (Principles same as Rules)

a. LP would say a legal obligation ONLY arises where there is a legal rule
b. Legal rule to do X  it predicts outcome Y and invites criticism of judge Z were he to
decide against the rule then the criticism would be harsh
nd
2. 2 Track (Where the law = rules & (principles are ‘extra-legal’) 
a. Judges would treat principles as a guide
b. “what most judges have made it their principle to do”/ long standing tradition to
recognize equality or audi alteram partem.

5. Dworkin asserts that, on the face of it at least, positivism prefers one of the tacks. Which one?

Positivists prefer the second tack; that principles are not binding as rules are, and therefore judges can
reach beyond the law to make decisions.

Section 5. Discretion

6. In this section Dworkin appears to be making the following argument against the second positivist
tenet:

(a) According to the second positivist tenet, judges (sometimes) exercise a discretion.
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(b) When positivists claim this, they have in mind discretion in a ‘strong’ sense.
(c) It follows that positivists are necessarily taking the second tack to the role of principles in
adjudication: i.e., they are committed to the view that principles cannot be part of the law.
(d) But principles clearly are part of the law.
(e) Hence positivists are mistaken in claiming that judges (sometimes) exercise a discretion: the
second positivist tenet is false.

Is this Dworkin’s argument and, if so, is it a good argument?

He speaks about discretion as if it were a hole of a doughnut (which “only exists except in an area left
open by a surrounding belt of restriction”).

He distinguishes between discretion in a weak sense and a strong sense.

Weak discretion can mean 2 things:
1. A standard cannot be applied mechanically and involves some judgement call
a. E.g. HC judge and unique facts, they have rules but a small grey area and therefore
discretion is involved.
2. A decision that cannot be reviewed or reversed by any other authority
a. CC decision, they bound by rules or principles, but once they make a decision, who is
going to review that?

Strong discretion:
Dworkin says this is less than a licence, but it does involve an express directive of discretion. Thus, the
decision-maker is not bound by the standards set by the authority in question.
Still subject to standards of fairness, rationality and criticism.

Dworkin argues that judges can never exercise strong discretion. They never have this expressed
directive to decide what they want because they always bound by the standards set by the authority in
question (the law).
Dworkin says that there is ALWAYS a right answer to questions involving legal rights that may be
determined by recourse to legal rules or social principles.

If you have considered discretion in the strong sense, you reject the idea that there are principles in the
law. But we have established that principles are part of the law, so the second tenet of positivism is
wrong.

This presupposes that principles are part of the law.

Is this a good argument?

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Do positivists really believe that principle isn’t part of the law, do they really follow the 2 nd tack? Legal
Rule v Legal Source. Dworkin perceives that Positivists as obsessed with legal sources.
But a legal source CAN comprise of a legal rule or a principle (section 36 limitations analysis – it’s a
source of law but based heavily on the principles in the Bill of Right).
Raz wouldn’t agree that principles are not part of the law.

Section 6. The Rule of Recognition

7. In this section Dworkin appears to be making the following argument against the first positivist
tenet:

(a) According to the first positivist tenet, the law of a community is to be identified by a pedigree
test.
(b) It is impossible that there be a pedigree test that can identify principles as law.
(c) But principles clearly are part of the law.
(d) Hence positivists are mistaken in claiming that the law of a community is to be identified by a
pedigree test: the first positivist tenet is false.

Is this Dworkin’s argument and, if so, is it a good argument?

Yes, but it’s not a great argument. It is somewhat good, but it assumes that there cannot be a pedigree
test that identifies principles.
Further, did Hart not intend to include principles in his account of secondary rules?

P.S There is always the problem with Dworkin that he paints a picture of Hart’s argument and then
criticizes Hart on the basis of his own version.

The rule/principle distinction is not nearly as stark as Dworkin suggests.

Hart meant the term ‘rule’ to cover both ‘rules’ and ‘principles’ in Dworkin’s sense, so rules of
recognition could indeed pick out which principles are ‘legal’ & which not.

There are 3 great political virtues in any community:

1. Justice
2. Fairness
3. Political Integrity

Does Dworkin’s attack of Legal Positivism in the Model of Rules reach its target?
No, LP gets a really bad wrap and unnecessarily though.
Nazi Germany is an example of how people place the blame on legal positivism.
He misunderstands a lot of Hart’s, and legal positivists, conceptualizations and then criticizes them
based on this wrong conception.
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(note this was written at the beginning of his career).

LAW’s EMPIRE – Law as Integrity

Ronald Dworkin: ‘Integrity in Law’ (from Law’s Empire)

Laws have Integrity

Dworkin does come up for a reason for this (from Hard Cases) – The Notion of Political Integrity and he
uses this assertion sometimes
as (1) an independent justification for his view of adjudication but also for
(2) the justification for his idea that the law of a community includes the scheme of principles that
“fits” and “justifies” the bulk of its precedents statutes and constitutional provisions and whatever is
justified by that.

A Large View

1. Dworkin introduces this chapter by drawing a distinction between his conception of law,
namely ‘law as integrity’, and two others, namely ‘conventionalism’ and ‘legal pragmatism’.
What is the essence of each of these conceptions?
(1) Conventionalism is in essence an interpretation of positivism. It values certainty, predictability and
procedural fairness. Law is made up of conventions determined by backwards-looking considerations of
fact — what is the law; what has been said to be the law/made to be the law? 1
a. Law as Integrity (Dworkin’s theory of Law and Adjudication) – rejects conventionalism and
Legal Pragmatism)
i. Insists that legal claims are interpreted by judges and therefore binds backward and
forward looking. They interpret contemporary legal practice seen as unfolding
political narrative.
ii. Adjudicative Principle of Integrity – According to Law’s Integrity, judges must
identify legal rights and duties as far as possible on the assumption that law created
by a settled author of the community personified, expressed a coherent conception
of justification.
iii. According to Law’s Integrity: Dworkin notates his view of law and adjudication
within a broader view on how we actually interpret, on one hand, literature and the
arts and on the other hand, social practice.
1. Interpretative Concepts – he defends the particular view of interpretation
called constructive interpretation (he thinks this is the way we interpret
arts, literature, social practices and law).

1
Dworkin concedes RE: Conventionalism – Legal Positivism in an exclusive sense understood as a Constructive
interpretation of Legal Practice
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b. Legal Pragmatism (Legal Realism): Pragmatism resembles realism; it is a forward-looking,
case by case conception of law. The truth behind law is that the judges are making their own
political judgments, unconstrained by law, based on their own political convictions.
2. A key notion in Dworkin’s conception of law and adjudication, that is, law as integrity, is
‘constructive interpretation’. What is constructive interpretation? (How is it different from
interpretation aimed at discovering an author’s intention? What are its two dimensions?
c. Constructive Interpretation: not just conversations, but constructive as it is essentially
concerned with purpose and not cause.
Constructive interpretation is about interpreting something in light of its valuable purpose; to make it
the best version of itself. It is not about determining what words mean.
It requires two things: moving from a concept to a conception; and using moral argument to come up
with a fit and justifiable interpretation of that concept. The interpretation must both fit and justify the
concept.

i. Purpose is not modes of some author but of the interpreter.

ii. Roughly, CI, is a matter of imposing purpose of an object or practice in order to
make of it the best possible example of the form of genre to which it’s taken to
belong.
iii. The History and Shape of an object or practice constrains the available
interpretations of it.
iv. Creative Interpretation on the constructive view is a matter of interaction between
purpose and object.

What are the 2 dimensions of Constructive Interpretation?

2 Dimensions:
1. It must “fit” the object that is interpreted (concept to conception)
2. “Value” – of the possible interpretations, we must choose the one that has the best aesthetic
value of the object of its kind using moral arguments to come up with a fit and justifiable
interpretation of that concept.
a. We have to engage in the theorization of the practice or object itself. Law is essentially a
political practice. We cannot avoid political judgements about what would give law the
greatest political value.
Dworkin avers that the best constructive interpretation of the practice of law yields his account of
adjudication and law.

3. What role do principles play in law as integrity? What role is played by past decisions?
Principles play a role in the justification segment of law as integrity.
They are the forward-looking considerations that aim to make the law the best it can be.
Past decisions justify the law. They make sure the law, as it is found in accordance with the principles,
fits into the chain of legal decisions that precedes it.
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The Chain of Law

4. How is a ‘chain novel’ written?

Each author (judge) writes the latest chapter. Hence, she is constrained by what has been written in the
past chapters but is at liberty to improve the novel into the future. Judges, when they adjudicate cases,
are constrained by rules and past decisions, but are free to make the law the best they can, going
forward, by reference to principles which justify the law.

5. How does the metaphor of the ‘chain novel’ help to elucidate Dworkin’s account of law and
adjudication, that is, law as integrity?
Each law has to be fit; it must fit in (like a chain)
And we need to choose the principles that make the law the best going forward.
So the idea of ‘fit’ entails a connection to the past and the need for such a connection.
Justified, then, entails that it is the best thing going forward.
So, constructive interpretation works to combine the past and the future so as to express a coherent
flow of justice and fairness. Judges themselves are trying to constructively interpret their own law by
looking to the past to make in fit in the present and making sure that it is justified in making the law the
best possible thing for the future.

Dworkin on the ‘chain-novel’ metaphor:

“The adjudicative principle of integrity instructs judges to identify legal rights and duties, so far as
possible, on the assumption that they were all created by a single author – the community personified –
expressing a coherent conception of justice and fairness.”

Law: The Question of Emotional Damages

6. Explain Dworkin’s account of law and adjudication, that is, law as integrity, using a South African case
(dealing with any area of law other than that of emotional damage or nervous shock) instead of the case
that he uses, namely McLoughlin v O’Brian.
POTENTIAL EXAM QUESTION!!
Law as integrity asks judges to assume, so far as this is possible, that the law is structured by a coherent
set of principles about justice, fairness and procedural due process, and it asks them to enforce these in
the fresh cases that come before them. This, so that each person’s situation is fair and just according to
the same standards. This style of adjudication supports the ambition integrity assumes; the ambition to
be a community of principle.

S v Englebrecht: sentence to the rising of the court — domestic violence led to Ms Engelbrecht killing her
boyfriend/husband. Court sentenced her to the rising of the court; said she had undergone enough
punishment already.
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Community of principle? In Engelbrecht, the court is constrained to convict of murder given the absence
of a valid defence (due process); it is constrained by precedent. But in making the law the best it can be
going forward, the court justified the decision by reference to principles, sentencing her to the accused
rising of the court on the basis that she had seen punishment enough in her life (fairness; justice).

A Provisional Summary
7. Explain the notions of ‘fit’ and ‘justification’, and the relationship between them, in Dworkin’s
account of law and adjudication.
To be ‘fit’ is a consideration that requires judges to look back into the previous chapters of the chain
novel. It is a backwards-looking consideration that points judges to make decisions that fit what has
been decided in the past — it ensures consistency. Justification looks forward. It looks to the principles
that best justify the law, in light of what the law ought to be (its best version). These principles justify
the law by doing it the service it deserves; making it the best. Fitness solves the problems