KEY POINTS: DWORKIN AND THE MORAL INTEGRITY OF LAW

ASSAULT ON POSITIVISM

• Dworkin’s campaign against Hart’s model of rules provides the springboard for his
denunciation of legal positivism, in one of his works titled, Law’s Empire he mounts a more
comprehensive onslaught on what he calls ‘conventionalism’, which includes what he calls the
‘semantic sting’ of positivism.
• The ground of Dworkin’s own legal theory is based on his version of liberalism which he describes
as springing from the proposition that ‘government must treat people as equals’. By this he means
that it ‘must impose no sacrifice or constraint on any citizen in virtue of an argument that the citizen
could not accept without abandoning his sense of equal worth’.
• As Dworkin put it there is ‘no law beyond the law’; contrary to the positivist thesis, there are no
‘gaps’ in the law. Law and morals are inextricably intertwined. There cannot therefore be a rule of
recognition by which to identify what is ‘law’. Nor does law ‘as a union of primary and secondary
rules’ provide an accurate model, for it fails to account for principles and policies.

PRINCIPLES AND POLICIES

• There are ‘principles’ and ‘policies’ which, unlike rules, have ‘the dimension of weight or
importance’. In other words, if a rule applies, and it is a valid rule, a case must be decided in a way
dictated by the rule. A principle, on the other hand, provides a reason for deciding the case in a
particular way, but it is not a conclusive reason: it will have to be weighed against other principles
in the system. A distinction must, however, be drawn between ‘principles’ and ‘policy’. A ‘principle’
is a standard to be observed, not because it will advance or secure an economic, political, or social
situation, but because it is a requirement of justice or fairness or some other dimension of morality’.
A ‘policy’, on the other hand, is ‘that kind of standard that sets out a goal to be reached, generally
an improvement in some economic, political, or social feature of the ‘community’. Of course,
Dworkin rejects any master rule or rule of recognition by which
these principles and policies gain admission to the legal system, indeed such a rule would
be an impossibility for such standards ‘are numberless, and they shift and change so fast
that the start of our list would be obsolete before we reach the middle. Even if we succeeded, we
would not have a key for law because there would be nothing left for our key
to unlock.’ Principles describe rights; policies describe goals.
 WHO IS HERCULES?
• Hercules is a judge ‘of superhuman skill, learning, patience, and acumen’. Hercules is
expected to ‘construct a scheme of abstract and concrete principles that provides a coherent
justification for all common law precedents and, so far as these are to be justified
on principle, constitutional and statutory principles as well’. Where the legal materials
allow for more than one consistent reconstruction, Hercules will decide on the theory of
law and justice which best coheres with the ‘institutional history’ of his community.

THE SEMANTIC STING

• The ‘Semantic Sting’ is an argument, that is philosophical, meant to picture a fundamental flaw in
the descriptive approach to jurisprudence. It also contends that the jurisprudential method is
descriptive in the sense that it does not rest on substantive commitments about what is morally
right and wrong.

• The semantic sting is central to Dworkin’s assault on legal positivism. It challenges the claim that
there are common standards that exhaust the conditions for the proper application of the concept
of law. This is an important objection for it illustrates Dworkin’s unease about all semantic theories:
they wrongly assume that important disagreement is impossible unless ‘we all accept and follow
the same criteria for deciding when our claims are sound, even if we cannot state exactly, as a
philosopher might hope to do, what these criteria are’.

COMMUNITY

• Dworkin’s case for law’s legitimacy rests on the idea that a political society that accepts integrity
becomes a special form of community in that it asserts its moral authority to use coercion. And
‘integrity’ requires a sort of reciprocity between citizens, as well as their recognition of the
importance of their ‘associative obligation’. A community’s social practices generate ‘genuine’
obligations when it is a ‘true’ rather than a ‘bare’ community. This transformation occurs when its
members consider their obligations as ‘special’ (ie, applying specifically to the group), ‘personal’ (ie,
flowing between members), and based on equal concern for the welfare of all.
 EQUALITY

• Dworkin’s concept of equality endorses a high degree of state interference in individuals’ lives. To
this end, he distinguishes two core concepts of equality: equality of welfare and equality of
resources. In respect of the first, he isolates a number of conceptions of welfare that might be
adopted in order to fulfill the ideal of equality of welfare. But none, he contends, provides an
adequate ideal. Only a conception of equality of resources will do; this relates to those resources
privately owned by individuals. How is this aspect of equality to be measured? Dworkin answers
that a division of resources is equal if, when it is complete, no one would prefer another’s bundle
of resources to his or her own (envy test). This is secured by a market mechanism in which the
primary market that comprises the resources in question and the secondary market consists of
insurance.