RONALD DWORKIN’S LEGAL PHILOSOPHY
RONALD DWORKIN’S LEGAL PHILOSOPHY
Ronald Dworkin, Taking Rights Seriously (1978)
1. Policy vs. Principle
a. policy focuses on furthering a collective goal: arguments of policy “justify a
political decision by showing that the decision advances or protects some
collective goal of the community as a whole.”
b. Principle focuses on furthering a right: arguments of principle “justify a
political decision by showing that the decision respects or secures some
individual or group right.”
c. Law privileges principle over policy: “If the plaintiff has a right against the
defendant, then the defendant has a corresponding duty, and it is that duty,
not some new duty created in court, that justifies the award against him.”
2. Legal Rights
a. Rights mediate history and morality: “When a judge chooses between the
rule established in precedent and some new rule thought to be fairer, he does
not choose between history and justice. He rather makes a judgment that
requires some compromise between considerations that ordinarily combine
in any calculation of political right, but here compete.”
3. Judge Hercules
a. Hercules represents the ideal-typical judge: “I have invented… a lawyer of
superhuman skill, learning, patience, and acumen, whom I shall call
Hercules. I suppose that Hercules is a judge in some representative
American jurisdiction.”
b. Hercules determines the fit between a moral theory and the law “to see
which [theory of morality] provide[s] a smoother fit with the constitutional
scheme as a whole.”
c. Hercules derives a political justification for the law: “It calls for the
construction, not of some hypothesis about the mental state of particular
legislators, but of a special political theory that justifies this statute, in the
light of the legislature’s more general responsibilities, better than any
alternative theory.”
d. Hercules only takes account of principled arguments: “Hercules, when he
defines the gravitational force of a particular precedent, must take into
account only the arguments of principle that justify that precedent.”
e. Hercules assumes that prior legal promulgations were principled: “Since
judicial practice in his community assumes that earlier cases have a general
gravitational force, then he can justify that judicial practice only by
supposing that the rights thesis holds in his community.”
f. Hercules treats the law as if it were a seamless web: “The law may not be a
seamless web; but the plaintiff is entitled to ask Hercules to treat it as if it
were.”
g. Hercules may deem past institutional choices mistaken: “Hercules must
expand his theory to include the idea that a justification of institutional
history may display some part of that history as mistaken.”
h. Hercules may oppose conventional morality: “Hercules’ techniques may
sometimes require a decision that opposes popular morality on some
issues… He does not, in this case, enforce his own convictions against the
community’s. He rather judges that the community’s morality is inconsistent
on this issue: its constitutional morality… condemns its discrete judgment
on the particular issues.”
4. Against judicial skepticism
a. Judicial fallibility is no reason to not to aspire to be Herculean: For this
argument “is perverse; it argues that because judges will often, by
misadventure, produce unjust decisions they should make no effort to
produce just ones.”
b. Constitutionalism precludes judges from being deferential: “There is no
reason to credit any other particular group with better facilities of moral
argument,” and indeed “constitutionalism- the theory that the majority must
be restrained to protect individual rights- may be a good or bad political
theory, but the United States has adopted that theory, and to make the
majority judge in its own cause seems inconsistent and unjust. So principles
of fairness seem to speak against, not for, the argument from democracy.”
5. Concepts vs. conceptions
a. Concepts vs. conceptions: “The man who appeals to the concept in this way
may have his own conception, as I did when I told my children to act fairly;
but he holds this conception only as his own theory of how the standard he
set must be met, so that when he changes his theory he has not changed that
standard.”
b. When legislators articulate concepts, they invite judicial activism:
“If those who enacted the broad clauses [in the US Constitution] had meant
to lay down particular conceptions, they would have found the sort of
language conventionally used to do this, that is, they would have offered
particular theories of the conceptions in question… If we take them as
appeals to moral conceptions they could not be made more precise by being
more detailed.”
i. “The difficult clauses of the Bill of Rights, like the due process and
equal protection clauses, must be understood as appealing to moral
concepts rather than laying down particular conceptions, therefore a
court that undertakes the burden of applying these clauses fully as law
must be an activist court, in the sense that it must be prepared to frame
and answer questions of political morality.”
Ronald Dworkin, A Matter of Principle (1985)
1. Courts as fora of principle
a. Judicial review is so entrenched that it should be accepted and justified.
Indeed, “abdication would be more destructive of consensus, more a defeat
for cultivated expectation, than simply going on as before.”
b. Judicial review is justified by privileging principle over policy: “In hard
cases, normatively it would be wrong for judges to decide civil suits on
grounds of policy. Descriptively… judges adjudicate civil claims through
arguments of principle rather than policy, even in very hard cases.”
i. “We have an institution that calls some issues from the battleground
of power politics to the forum of principle. It holds out the promise
that the deepest, most fundamental conflicts between individual and
society will once, someplace, finally, become questions of justice. I do
not call that religion or prophecy. I call it law.”
2. Originalism is an inadequate interpretive theory
a. Judges cannot interpret the framers’ intent without substantive judgments:
“Judges cannot decide what the pertinent intention of the Framers was, or
which political process is really fair or democratic, unless they make
substantive political decisions of just the sort the proponents of intention or
process think judges should not make.”
b. Originalism is at best the mid-part of an interpretive theory: “At best it can
be the middle of such a theory, and the part that has gone before … is
substantive-and controversial-political morality.”
3. Interpreting Legislative Intent
a. We should distinguish between concepts and conceptions: “When phrases
like “due process” or “equal protection” are in play, we may describe a
legislator’s or delegate’s intention either abstractly, as intending the
enactment of the “concept” of justice or equality, or concretely, as intending
the enactment of his particular “conception” of those concepts.”
i. “If the abstract statement is chosen as the appropriate mode or level of
investigation into the original intention, then judges must make
substantive decisions of political morality not in place of judgments
made by the “Framers” but rather in service of those judgments.”
b. We should not be faithful to legislative intent via reference to said intent:
“Some part of any constitutional theory must be independent of the
intentions or beliefs or indeed acts of the people the theory designates as
Framers. Some part must stand on its own in political or moral theory;
otherwise the theory would be wholly circular in the way just described.”
Ronald Dworkin, Law’s Empire (1986)
1. Law is an interpretive enterprise
a. The “internal point of view” constitutes interpretation. H. L. A. Hart may
have laid the foundation for such a conclusion via his exposition of law’s
“internal point of view,” but he was frustratingly vague with regards to its
constitutive nature and character. Interpretation endows the internal point of
view with its form and substance, and the positivist neglect of this activity
suffices to reject it as a theory of law. “[L]aw is an interpretive concept,”
and therefore “any jurisprudence worth having must be built on some view
of what interpretation is.”
2. Law as integrity: Implications for interpretation
a. The interpretation of law is a constructive interpretation: as with the
interpretation of a work of art, legal interpretation is a constructive
interpretation: it “is indeed essentially concerned with purpose not
cause…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 belong.”
b. The interpretation of law requires abstracting from individual intent:
Interpretation is not reducible to aggregating individual intentions; rather, it
is about abstracting from individual intent and treating the social whole as
endowed with a collective will meritorious of interpretation. It requires
“interpreting the [social] practice itself … because the claims and arguments
participants make, licensed and encouraged by the practice, are about what it
means, not what they mean.”
c. The interpretation of law requires one’s participation: unlike the
interpretation of art or the scientific interpretation of empirical data, “judges
think about law…within society, not apart from it.”
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3. The concept of integrity
a. Integrity demands interpreting community standards as morally coherent:
Integrity requires that the “the public standards of the community be both
made and seen, so far as this is possible, to express a single, coherent
scheme of justice and fairness in the right relation,” namely a coherent set of
principles “fundamental to the scheme as a whole.” Integrity requires judges
to assume that legal rights and duties “were all created by a single author -
the community personified - expressing a coherent conception of justice and
fairness.”
b. Integrity is the foundation of morality in a “genuine” community alongside
“justice” and “fairness.” Dworkin understands a genuine community as
being one where
i. Individuals interpret their social responsibilities as “special,” or as
holding distinctly within the group rather than in general
ii. Individuals deem responsibilities to be “personal,” or running directly
from each member to each other member
iii. Individuals perceive these responsibilities to be ground in the
“concern for the well-being of others in the group”
iv. Individuals demonstrate an “equal concern for all members”
c. The Herculean judge applies law as integrity
d. Hercules acts as the author of a chain novel, “a multi-authored, incomplete,
yet fundamentally coherent epic to which he must now contribute and
remain faithful.”
e. Hercules is constrained by a community’s political history: “Anyone who
accepts law as integrity must accept that the actual political history of his
community will sometimes check his other political convictions in his
overall interpretive judgment. If he does not…then he cannot claim in good
faith to be interpreting his legal practice at all.”
f. Hercules abstracts from the immediate case to uncover a single political
morality: As Hercules’ “judgments of fit expand out from the immediate
case before him in a series of concentric circles” to latch onto precedent, it
seeks to uncover within historical empirics a single political morality. Hence
Hercules’ interpretation of the legal system as the “community personified”
that “created” legal rights.
