CHAPTER 5

DWORKIN AND THE MORAL

INTEGRITY OF LAW
 The assault on positivism
Principles and policies
Hercules and hard cases
One right answer

DETAILED The semantic sting

The rights thesis
Law as literature

CONTENT Law as integrity

Community
Equality
Good lives and living well
The assault of Dworkin
WHO IS RONALD
DWORKIN?
RONALD DWORKIN

Born: December 11, 1931, Providence, Rhode Island, United States

Studied philosophy (under Willard Van Orman Quine at Harvard University and,
informally, with JL Austin at Oxford University) and law at both Oxford and the
Harvard Law School.
American legal philosopher, Jurist, and scholar of United States constitutional law.
Frank Henry Sommer Professor of Law and Philosophy at New York University and
Professor of Jurisprudence at University College London.
 The assault on positivism

Dworkin’s denunciation of legal positivism,

in 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 assault on positivism

Conventionalism rests on two main claims:

Argues that law is a function of social convention
which it then designates as legal convention.

Conceives law as incomplete: there are ‘gaps’ in the

law which judges fill by reference to their own
predilections
 The assault on positivism

Conceives law as incomplete: there are ‘gaps’ in the

law which judges fill by reference to their own
predilections—ie, judges have a ‘strong discretion.

Semantic theories are linguistic and logical.

The importance of Dworkin’s attack on conventionalism

 THE ASSAULT ON POSITIVISM
PRINCIPLES AND POLICIES
Principle-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.
Policy-kind of standard that sets out a goal to be
reached, generally an improvement in some
economic, political, or social feature of the
community.
Principles describe rights; policies describe goals.
HERCULES AND HARD
CASES
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’.
Hercules will decide on the theory of law and justice which best
coheres with the ‘institutional history’ of his community.
Hercules owes his existence to the image of law as a ‘gapless
system’.
Both Hercules and the notion of a ‘hard case’ have attracted (as
we shall see) a certain amount of criticism.
 THE ASSAULT ON POSITIVISM
ONE RIGHT ANSWER THE SEMANTIC STING

The proposition that there is, to every legal problem, ·Central to Dworkin’s assault on legal positivism. It
only one right answer, never fails to stop students in challenges the claim that there are common standards that
their tracks. This, they inevitably protest, is nonsense.
exhaust the conditions for the proper application of the
Dworkin’s model of adjudication points unequivocally concept of law.
to the idea that, in his pursuit of coherence and
·It entails that the concept of legal validity is more than
integrity, Hercules will find the best answer to the legal
question before him.
mere promulgation in accordance with shared criteria
embodied in a rule of recognition.
Lawyers accept that there is only one uniquely correct
result to any legal dispute. When giving advice, a lawyer
does not say ‘This will is neither valid nor invalid’; it is
either one or the other.
 THE ASSAULT ON POSITIVISM
THE RIGHTS THESIS
·Dworkin grounds his legal theory on a version of
liberalism that leads him not only to adopt a liberal
position on a number of specific issue but also to
define and defend a liberal theory of law that
informs his assault on positivism, conventionalism,
and pragmatism.
-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.
LAW AS LITERATURE
Law is like literature, an “interpretive
concept”. Judges are like interpreters of an
unfolding novel: they ‘normally recognize a
duty to continue rather than discard the
practice they have joined. So they develop,
in response to their own convictions and
instincts, working theories about the best
interpretation of their responsibility under
that practice. text
 THE ASSAULT ON POSITIVISM
LAW AS INTEGRITY
·Accepts law and legal rights
wholeheartedly
-Argues that rights and responsibilities flow
from past decisions and so count as legal,
not just when they are explicit in these
decisions but also when they follow from
principles of personal and political morality
the explicit decisions presuppose by way of
justification.
COMMUNITY
law’s legitimacy- political society that
accepts integrity
integrity- requires a sort of reciprocity
‘Associative Obligation’
“TRUE” Community rather than “BARE”,
when members consider their obligation as:
1. Special
2. Personal
3. Based on equal concern
4. For the welfare of all
 EQUALITY
Dwrokin’s equality- fairly high degree of
state interference in individuals’ lives.
TWO CORE CONCEPTS OF EQUALITY:
1.)Equality of Welfare- no adequate ideal
2.)Equality of Resources- when no one would prefer
another’s bundle of resources to his/her own.

Equality is secured through market mechanism

1.)Primary Market- refers to matters of resources in question.
Walrasian auction- matches supply and demand
“Envy test”
2.)Secondary Market- consists of insurance, lost of possibility that
there would be a need for another redistribution of resources
 EQUALITY
Equality is secured through market mechanism
Envy Test- applied diachronically. Over time no one envy the
occupation and resources another have.

Income Tax: neutralized the role of talent

Added variables: tastes, ambitions, talents, and approaches toward

risk- if these would be considered his objection would differ from
the “hypothetical auction”

Heart of all conceptions of equality- “abstract egalitarian principle”

GOOD LIVES AND LIVING WELL
Dworkin’s Justice for Hedgehogs- a powerful prescription for
how to live a moral, dignified life.
Hedgehogs- knows one big thing and is in alignment with dignity,
respect, and authenticity.
Unity of Value- Each of us are responsible to have a moral value
which is clear and coherent.
moral values are independent and objective
Ethical Principle: living well and having a good life
 THE ASSAULT ON DWORKIN
The attack on Hart
Rules may incorporate principles
Principles are not ‘principles’
Judges do have discretion
Judges rely on policy
There is no community morality
He misconstrues the rule of recognition
The law
The right thesis
A ‘hard case’ is inadequately defined
Hercules is objectionable
 THE ASSAULT ON DWORKIN
Hercules is objectionable
He is a politician
He is fraud
He is a tyrant
He is myth
The theory travels badly
One right answer
Law and literature
Integrity and ‘fit’
A ‘semantic’ theory