Ronald Dworkin (1931-2013)

20th century - jurist and philosopher.

One of the most important contributions was that he tried developing what was called a third
way – a third way, it was not a compromise. He brings together the points he agrees with
from the side of the positivist and the natural law theorists. He does not fall in any of the
camps. Although his schooling started within legal positivism.
If there is one philosopher who inspired Dworkin move away from positivism, it was Fuller.
He takes on and develops many of his points, especially on the unity of law and morality. His
main contention with the positivism is the separation thesis. He rejects the idea that they can
be rejected in the way that the positivism does. He offers an alternative to Hart’s legal
positivism. Hart’s bases his positivism on the separation thesis. When he is rejecting the
separation thesis, he is rejecting his foundation, legal positivism. He considers that all the
versions of legal positivism are flawed, especially when it comes to legal validity. Dworkin
believes that legal positivism does not answer the basic philosophical question, why should
we obey the law?
When obeying the law or either when making or changing a law, there must be a
consideration as to whether that law is good or not, and that type of consideration is a type of
moral order, this means one cannot separate rules from morality, a consideration of what is
good. This is similar to what Finnis said, that we need to have good reasons to follow the law
not just a reason to follow the law. Although he criticised legal positivism, he disagrees with
one important thing of the natural law theory. They think that the law refers to a set of higher
principles which the law discovers. This means that the law discovers the principles, or rather
the moral principles which society should follow. For Dworkin, morality does not precede
law in this way. His theory of the relation between law and morality is best described as a
constructivist theory. A law is not something that becomes a law/good because people accept
it and because there is legal validity. For positivist all it needs is validity. He rejects this
understanding of the law and he says that the law includes both rules and principles, and
therefore refers to the requirements of justice and fairness. The law is not just an acceptance
by the majority, but some sort of acceptance of justice and fairness. Rules are accepted, they
are followed, or they are not. The other aspect of rules, and their reference to justice and
fairness is not very clear.
He says that the law itself, and especially judgements, the judgements of the courts construct
these principles. He says that moral principles are constricted through the work of the judges
and the courts. For him, the law, who was a practising jurist, the practice of law and
especially the work of the judges is practical philosophy. In handing out a judgment, a judge
is doing what he is supposed to do, apply the law, but according to Dworkin, he is doing
political philosophy. Reason, for Dworkin is the rational activity. There comes a point that
the legal positivist, a judge may and should refer to moral principles.
The idea of integrity and interpretation lie at the centre of Dworkin’s theory. His theory is
mainly concerned with the judgments of the courts, the process of judgement, rather than the
law-making process. He calls law a constellation of rules and principles. When a judge is
deciding on a case, he cannot just look at the written and unwritten law, but he must also look
at the spirit of the law.
Law as interpretation. Legal philosophy of this kind is always based on the works of the
courts. When he talks about interpretation, he is very clear that each jurisdiction, national etc,
each one has its own history. Dworkin’s answer is that a judge, although there might not be a
law of precedence, the judge must be aware that her or his judgment is not being handed
down in isolation, but that judgment comes on the back of history of judgements by that
court, and then his judgement will become part of that history. All judgements use the phrase
“the court”. This shows that the court is the one making the decision and not the judges.
Judges come and go, but courts and judgments live on.
The law is interpreted by the judges, and therefore when judgments are pronounced, they are
released in the name of the court. This shows that the court is greater than the judge and
although the judge is creating the law, he is still not greater than it. This is also because the
court will always remain, but the judge wont. The work done by the judge then goes down in
history and can be used by other judges in the future as reference. This judgement passed by
the judges must be in line with past judgments. The reason why Dworkin believes in this
system is because it removes the unfair task given to judges by the positivist of having to
interpret the law entirely by themselves.
Dworkin is different from Finnis because on the one hand Finnis believes that judges, when
interpreting the law, refer to principles that are there and that can be discovered through
practical reasonableness, while Dworkin believes that these principles are already there as
they have assembled and been created before by other judges. However, they believe that law
and morality are connected.
The best fit and its best possible light. Based on what has been said, the work of the judge is
an interpreter, against the backdrop of the principles, the principles of justice and fairness,
interpreted and expressed in the previous bodies of judgement. Law has interpretation
because what the judge is an interpreter of the law. This idea of law at integrity, represents a
third way of following the main theories.
The idea of integrity, wholeness, is this realisation that every judge is in conversation with
the whole history of the court.
Dworkin tries to find a third way, but not a compromise. At the heart of his debate is the
difference between legal rules and principles. The main argument he wants to make is that
since rules and standards are not antagonistic, but intertwine, there can be no separation
between them. Dworkin argues that rules and principles are not antagonistic, they intertwine,
because rules and standards are intertwined, the argument for their separation is invalid.
Since rules and principles coexist, because the law cannot conceive only as a set of rules, but
includes a sort of model for those rules, then the separation between them falls.
Distinction made by Dworkin between rules and standard/principles. The distinction between
legal rules and standards/principles lies at the heart of Dworkin’s objection to legal
positivism. For the positivists, law is an elaborate set of rules. According to Dworkin, this
definition is only one dimension of law. His main charge is that the definition they give of
law is only a partial one. Dworkin introduces the idea of standards. The main argument he
wants to make is that since rules and standards are not antagonistic, but actually intertwine,
there can be no separation between them. In his examination of legal positivism, what lies at
the core of Hart’s separation thesis, is this idea that rules and principles are somehow
antagonist to one another. The legal positivist put forward the separation thesis because they
believe that rules and principles are antagonistic.
For Dworkin, when a law becomes coherent, it becomes incoherent. The validity of a law
relies on judicial discretion.
The model of Rules – pgs. 20-25.
When writing about positivism and its critics is that his is “general attack of positivism” –
Dworkin.