JURISPRUDENCE

RESEARCH PAPER

RELEVANCE OF ETHICAL THEORY IN CONTEMPORARY LAW: RONALD

DWORKIN

SUBMITTED BY: SUBMITTED TO:

JYOTI MAURYA MR. RABINDRA PATHAK
ROLL NO.: 866 ASSISTANT PROFESSOR
SEMESTER: V ‘A’

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW,

RANCHI

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 I. INTRODUCTION

Dworkin’s theory of law came as a critique of legal positivism and is described as “hedgehog
approach” that is demonstrative of integrity of law, politics and morality. He rejected the
notion of general law and contended that the same law cannot be enforceable in the society of
different cultural and moral principle. (i) There is a standard social rule in any society which
governs the act of both public officials as well as private individuals. (ii) the rule of
recognition exists as an authoritative test to identify valid rules of law, (iii) a law, generally,
does not require moral validation, therefore, law and morality are conceptually different
concept and (iv) whether to decide a case on the basis of morality is based on the discretion
of the judge1; these four points summarized the theory evolved by Dworkin.

According to him justice is relied on the notion of just society and state.2 Secondly, he
contended that apart from the concept of equality, liberty and democracy, the political
morality is also connected to law of the society, and lastly, he believed that there exists a
mutual connection between individual ethics, personal and political morality. His
gnoseological conception3 concerning concept of value in law, politics and morality, and his
epistemological conception4 in respect to objective truth in the field of values describe his
theory of ethical and moral foundation.

The narrower interpretation of the term ‘ethics’ alludes to individual ethics, the study of how
to live well, while the broader interpretation refers to personal morality, the study of how we

1
Ronald Dworkin, Justice for Hedgehogs, Cambridge/London 2011
2
There are two conceptions of the relation between a political morality, individual ethics, and a neutrality of the
state. The first is called a “strategy of discontinuity”, in which the neutrality of the state is a fundamental
principle, and the justice matters only in a form of procedures concerned with neutral institutional regulations,
having nothing to do with individual value orientations and with a common good. The state does not and must
not concern itself with individual ethics (with individual value-concepts of the good). The second is called a
“strategy of continuity”, according to which the neutrality of the state is a derived principle. In this case, a
connection between a common good, value pluralism of individual conceptions of a good life, and justice, has
been an internal one. While the “strategy of continuity” implies that the neutrality of the state can be compatible
with a perfectionist demand that the state concerns itself with a common good as well as with individual value-
conceptions of the good, the “strategy of discontinuity” implies an incompatibility between a political morality
and perfectionist ethics. Two abovementioned conceptions essentially result in two different designs of
liberalism. (See: Ronald Dworkin, note 3, 1990; note 2, 2000)
3
Axiological/gnoseological conception of the status and integrity of values is elaborated in “The Foundations of
Liberal Equality”, in the article “Justice for Hedgehogs” (Available from http://www.nyu.edu /accessed August
26, 1999),
4
Epistemological explanation of objective truth in a field of values is given in an article, “Objectivity and Truth:
You’d Better Believe It”, Philosophy & Public Affairs 25, 1996. As well as in the above-mentioned article
“Interpretation, Morality and Truth”

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must treat other people.5 However, the term ‘morality’ is used primarily to denote a political
morality, the issue of how a sovereign power should treat its citizens.6

Dworkin’s work was based on the string which unite people rather than the point which
divide them. He coined the term ‘democratic dilemma’, he focused on the cardinal value of
‘ethical humanism’, a value which is followed by every individual in spite of their personal
discrepancy.

II. DWORKIN’S LIBERAL THEORY OF JUSTICE AND POLITICAL MORALITY

Liberal theory of justice and political morality proposed by Dworkin drew on the principles
of the ethical individualism and the individual responsibility.

In his book Sovereign Virtue Dworkin interpretated the principle of equal importance as an
equal responsibility of a sovereign power towards its citizens. The principle of ethical
individualism states that the constitutionality of a sovereign power derives from fair concern
for each and every citizen. He establishes that “equal concern... is the special and
indispensable virtue of sovereigns.”7 In other words, an “equal concern is the sovereign
virtue of political community.”8 The essence of the discussion is that a just and fair
distribution of the resources among its citizen is of utmost importance for the sovereign
power, that means “endowment insensitive” (indifferent towards individual’s social status as
well as in natural talents and handicaps) and “ambition-sensitive” (heedful to personal
choices). Therefore, the two principles of humanism have to be conducted through an
implementation of Dworkin`s conception of justice.

The second principle of the individual responsibility directs an individual to be responsible

for his/her own life choices, and a person’s choice concerning what is viewed as a fruitful or
debilitated within the bound of his culture and resources. 9 As indicated by Dworkin, the
principle of individual responsibility doesn't imply that individuals don’t need to think about
others and that they can do whatever they wish. His elucidation of the exceptional obligation
regarding accomplishment in individual lives has been additionally evolved, it might be said
that it should be viewed as not just from the viewpoint of chances and assets accessible to us,

5
Ibid, 13.
6
Ibid, 19.
7
Ibid, 134.
8
Ibid,144.
9
J.G.Riddall, “Jurisprudence" Lexis Nexis U. K, Butterworths, 2nd ed 1999.

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yet in addition from the point of view of vital aggregately made choices with respect to
which assets and fortuity will indeed be available to us.

II.I. LIBERAL ETHICS

‘Foundations of Liberal Equality’ by Dworkin talks about liberal ethics but he barely
mentioned the concept of liberal ethics in his later book ‘Sovereign Virtue’. Nonetheless, in
‘Justice for Hedgehogs’ Dworkin didn't further express his origination of liberal ethics.

According to Dworkin liberal ethics should be theoretical, and not depend upon the
acceptance by various individual ethical sentiments. notional liberal ethics necessitate that
people “test their solid suppositions in a specific light.”10 Liberal ethics build upon the
essence of a decent life, with dynamic issues, for example, the accompanying: What is the
origin of the inquiries concerning ethics? For what reason would it be a good idea for us to
stress over how to live? Whose obligation is it to make lives great? What is the proportion of
a decent life?11

Dworkin believed that the two basic standards of humanism (the guideline of equal
importance and that of exceptional responsibility) offer alluring responses to the initial two
questions with respect to the source and the duty. Retaliation to the query "Whose obligation
is it to make our lives great?" is associated with his explanation that equity is a sovereign
excellence of a political network, just as to the assertion that equity is a boundary of
individual ethics.12

Dworkin addresses the inquiry fasten with the proportion of a decent life by expounding a
"challenge model of ethics" - rather than an “impact model of ethics” -by distinguishing
between a "basic prosperity" and a "voluntary prosperity", and between "basic personal
matters" of people and their "voluntary personal circumstances". The fact is that the problem
is not only of self-centred interest but in addition, those which make for an inner association
between acts and a basically decent life. "Basic prosperity" and "basic personal matters" lead
toward an acknowledgment of equity as a boundary of individual morals. This implies that
the "basic prosperity" assumes contemplating - what might be, as a rule, a finer life – likewise
as an exclusively important origination of a decent life.13

10
24 R. Dworkin, (note 2, 2000), 231.
11
Ibid,234.
12
Ibid 241-242.
13
Ibid 248.

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The "challenge model of morals", which works on the Aristotelian principle that a decent life
has an innate estimation of a skilful execution, offers a legitimate space to thoughts about
basic interests of people putting forth a valiant effort to effectively address difficulties which
they face to improve their lives, and to interface boundaries of challenge and of skilful
execution with their own way of life and other different conditions.14

II.II. ETHICAL PRINCIPLE OF DWORKIN

At the level of individual ethics, the principle of self- respect and the principle of
authenticity, the two ethical principle got place in the principle of law of Dworkin, these two
basic philosophical principles together build an outset of human dignity. Although, in his
earlier book he argued that society ethics and moral fabrics which is developed in society
helps in formulation of laws, policies and principles. He gives considerably more
consideration to a moral obligation and individual morals than to political ethics, later
development in his theories argues that integrity of law must be consistent and while
retaining integrity of law it may fail popular morality of the society.

As previously mentioned, the two crucial standards of legislative issues are the necessity that
the public authority treats those it oversees with an equivalent concern and the prerequisite
that it regards its subjects' moral duty. Notwithstanding, in the Justice for Hedgehogs,
Dworkin builds moral analogues of the political standards and associates profound quality to
the morals undoubtedly.15

There are two notions of the connection between a political ethics, individual morals, and
objectivity of the state. The first is known as a “strategy of discontinuity”, in which the
impartiality of the state is a key guideline, and the equity matters just in the form of
procedures along with objective institutional guidelines, having nothing to do with individual
moral intention and with a common good. The state doesn't and should not worry about
individual morals (with the individual ethical intention of the good).

The second is known as a “technique of congruity”, as per which the unbiased state action is
a determined rule. In this situation, there exists an indirect or internal connection between the
common good, the value pluralism of the individual impression of a decent life, and equity.
While the “technique of congruity” infers that the impartiality of the state can be viable with
a stickler request that the state frets about common good along with individual's desirable
14
Ronald Dworkin, (note 3, 1999).
15
24 R. Dworkin, (note 2, 2000), 245. Dworkin, (note 4, 2011), 196. 25

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value for the better life, the “strategy of discontinuity” infers a contradiction between
political morality and idealist morals.

Two previously mentioned formulation basically bring about two distinct propositions of
progressivism. In his book, Dworkin underlines that we have an ethical obligation to make
something good out of our lives and that the moral obligation is objective. Moreover, he
contends that our different duties and commitments to others go along the previously
mentioned moral duty towards our own lives. In any case, an obligation to others exclusively
in legislative issues mainly requires fairness among individuals and the other members of the
society.16

III. RELEVANCE IN CONTEMPORARY LAW

Dworkin’s approach to constitutional adjudication is characterised by judges exercising a

more judgmental and less mechanical role in interpreting the Constitution.

Supreme Court of India in several cases adopted Dworkin’s interpretive theory and while
withholding the equity conceivably disturb the sentiment and cultural value of the society. In
New India Assurance Co. Ltd. vs Takhuben Raghabhai And Ors. 17, court opined that, ‘The
judges are restricted to adjudge the case within the boundaries of values set by the legal
system. Judgement passed by the courts are meant to further those values and portray legal
doctrine as a whole, as integrated and consistent expression of them’

While citing Dworkin judges in SR Bomai case18 reckoned, “As Ronald Dworkin observed,
some parts of any constitutional theory must be independent of the intentions or beliefs or
indeed the acts of the people the theory designates as Framers. Some part must stand on its
own political or moral theory; otherwise, the theory would be wholly circular. The courts as
an interpreter are called upon to fill was significant constitutional gaps in variety of ways.
The court should vigorously describe, as determiners, of public values as and small
revolution and principles. Their source of moral foundation, available at the time when
momentous issues based on ethical or moral principles arise.”

Dworkin’s idea of ethical humanism has been a major part of the contemporary legal system
of India. The idea of values which exist irrespective of discrepancy in cultural ethics have
been enshrined in the constitution of India in the shape of fundamental rights. Diverse culture
16
Ronald Dworkin, (note 3, 1996, 1999 2002; note 4, 2011). See also: D. Vujadinovic (note 11).
17
2008 ACJ 989
18
 (1994)3 SCC1

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of India is well known and implementing a common law system is the implementation od
Dworkin’s idea of ethical humanism. Fundamental rights as natural rights in every human
society which exists regardless of one’s cultural background.

IV. CONCLUSION

Dworkin's original criticism of positivism has been through the years, changed (almost
beyond recognition) and updated a lot. However, the biggest shift happened as a result of his
implementation of the philosophy of law as "interpretive" as this step of the theory has
proven to be totally different from the first two steps of Dworkin. Inadvertently, he embraced
a great deal of positivism in his criticism of positivism. However, the ideas he has proposed
are no less significant in the study of jurisprudence, even though they were essentially not as
useful to Dworkin in criticizing positivism. This is because his approach requires a more
mixed approach to legal philosophy. Neither the Main School of Jurisprudence is entirely
correct, nor are these schools entirely correct, and in consequence, it is possible to attempt to
dismiss certain parts of the theories when blending the other pieces to provide a more
systematic approach to jurisprudence itself.

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