WEEK 3
DWORKIN'S CRITIQUE OF POSITIVISM: JUDICIAL ROLE, INTERPRETIVISM,
AND LAW AS INTEGRITY
Introduction to Critiques of Positivism
Positivism has been identified with the thesis that the validity of individual laws depends upon
their sources and not their merits. A particularly powerful model for this approach is provided by
Hart’s conception of every legal system having a ‘rule of recognition’, establishing criteria by
which standards can be identified as legal standards. The rule of recognition of a particular legal
system identifies the sources of law which are valid in that system (legislation, precedent, …),
and laws are valid because they either belong to one of those sources or are validated by other
laws which do (e.g. delegated legislation).
The idea that the validity of a legal standard depends upon its sources rather than its merits is not
uncontroversial, since many legal standards in both private and public law seem to derive at least
part of their force from their intrinsic merits (e.g. no one is to profit from their own wrong, no one is
to be a judge in their own cause). How is positivism to account for the status of such standards,
often described as ‘legal principles’? Dworkin claims that positivism cannot, and that principles
show that law is not necessarily source–based.
Many positivists, on the other hand, think they can, since laws can specify moral conditions for
the validity of other legal standards (e.g. inhuman and degrading treatment, unconscionable
conduct). But does this deal adequately with the problem raised by the existence of principles?
So far as Dworkin’s critique of positivist accounts of validity goes, the original argument merely
claims that the positivist account is inadequate. Which leaves the question, what alternative
account of legal validity is there? This is the challenge to which Dworkin responded in his work on
‘hard cases’.
Dworkin argues for a much more liberal conception of the scope of legal considerations than
positivists. For Dworkin law encompasses not only court decisions and legislation considered
discretely, but the totality of law seen as an internally coherent and consistent set of individual
rights and duties. Law has to be seen as an enterprise with underlying values which inform its
content and interpretation.
But does this work, or does it make any type of consideration which a court relies upon in
reaching its decision a ‘legal’ consideration? Does it obliterate the idea that courts rely on both
legal and non–legal considerations in deciding cases?
Dworkin and Interpretative Approaches to Law
To resolve legal disputes, courts often need to interpret sources of law such as constitutions and
statutes and precedents, and they need to interpret the communications by which parties try to
order their own and others' legal rights and duties (such as leases and wills). Is interpretation a
technique for dealing with uncertainties and controversies as to the effect of such legal
instruments? Or does it take interpretation to answer any question of law? Is legal reasoning a
form of interpretation, or is it a form of reasoning that often requires interpretation?
Ronald Dworkin argues that law is an ‘interpretive concept’, by which he means that any true
statement of law is true because it follows from the best interpretation of the legal practice of the
community. We will consider Dworkin's claim that all questions of legal rights and obligations (in
what he calls 'easy cases' as well as what he calls 'hard cases') are to be answered by
interpreting the community’s legal practice in a way that shows that practice (as well as it can be
shown) to respect the rights of the members of the community.
, General Reading
Primary texts
•• Dworkin Taking Rights Seriously, esp. Chs. 2–5:
o Dworkin says that a descriptive account of law is useless: It only looks at the law from the
external perspective and is incapable of truly understanding the law from the POV of
participants. NB The descriptive account of Hart DOES take IPOV, as Hart points out in
his postscript.
o Dworkin states instead that useful theories of law must be ‘interpretive’ – one must
adopt an interpretive attitude. This involves inter alia bringing political convictions to bear
on the relevant data. It follows that legal theory must always be politically committed.
There is no room for value-free theorizing of the kinds set forth by Austin, Kelsen or Hart.
Hart responds that the way participants respond to the law can be recorded as a fact
within the descriptive approach: ‘description may still be description, even when what is
described is an evaluation’.
o Dworkin also criticizes positivism’s claim that value-free theories of law can exist. He
says that they may be denying the need for the interpretive attitude because they say that
we know what law is simply by attending to the way in which people use the word ‘law’ –
Dworkin calls this the ‘semantic sting’.
o This would mean that when people disagree about the law on any topic they are
disagreeing about questions of linguistic usage, and that would be such a silly view that
Dworkin charitably recasts positivists as theorists who do take up the interpretive attitude,
but the wrong one – conventionalism.
o Integrity: Why don’t we have checkerboard laws i.e. those that treat people in the same
situation differently. E.g. why don’t we make abortion legal on even years and illegal on
odd years, if the population is evenly split as to legalisation, and each person has equal
impact on the system? The checkerboard would surely be “fair” as it allows the views of
all people to be taken into account and reaches a compromise. Similarly it is just, since a
person who is opposed to abortion may consider a checkerboard solution more just than
full legalisation. He says the reason is “integrity”- i.e. that the law must take a decision
and justify it on the basis of the principles that it considers correct. A checkerboard
compromise undermines the principles for taking a particular decision, which integrity
demands.
o NB Dworkin says that the point of law is to justify coercion. NO: Hart’s postscript points
out that much of law is not concerned with coercion e.g. power-conferring rules.
• Hart The Concept of Law, Ch. 7 and Postscript:
➢ Sometimes cases are indeterminate i.e. the law is “open textured” (hard cases). Obviously
there must be discretion in such cases because “we are men, not gods” and therefore cannot
determine the outcome perfectly in uncertain cases. All legal systems have a tension
between the need for certainty and the need to leave the law open whether for fairness or for
future development. The courts have a “role producing function” in uncertain cases. Rule
scepticism is therefore valid in hard cases (Dworkin reject this).
DWORKIN'S CRITIQUE OF POSITIVISM: JUDICIAL ROLE, INTERPRETIVISM,
AND LAW AS INTEGRITY
Introduction to Critiques of Positivism
Positivism has been identified with the thesis that the validity of individual laws depends upon
their sources and not their merits. A particularly powerful model for this approach is provided by
Hart’s conception of every legal system having a ‘rule of recognition’, establishing criteria by
which standards can be identified as legal standards. The rule of recognition of a particular legal
system identifies the sources of law which are valid in that system (legislation, precedent, …),
and laws are valid because they either belong to one of those sources or are validated by other
laws which do (e.g. delegated legislation).
The idea that the validity of a legal standard depends upon its sources rather than its merits is not
uncontroversial, since many legal standards in both private and public law seem to derive at least
part of their force from their intrinsic merits (e.g. no one is to profit from their own wrong, no one is
to be a judge in their own cause). How is positivism to account for the status of such standards,
often described as ‘legal principles’? Dworkin claims that positivism cannot, and that principles
show that law is not necessarily source–based.
Many positivists, on the other hand, think they can, since laws can specify moral conditions for
the validity of other legal standards (e.g. inhuman and degrading treatment, unconscionable
conduct). But does this deal adequately with the problem raised by the existence of principles?
So far as Dworkin’s critique of positivist accounts of validity goes, the original argument merely
claims that the positivist account is inadequate. Which leaves the question, what alternative
account of legal validity is there? This is the challenge to which Dworkin responded in his work on
‘hard cases’.
Dworkin argues for a much more liberal conception of the scope of legal considerations than
positivists. For Dworkin law encompasses not only court decisions and legislation considered
discretely, but the totality of law seen as an internally coherent and consistent set of individual
rights and duties. Law has to be seen as an enterprise with underlying values which inform its
content and interpretation.
But does this work, or does it make any type of consideration which a court relies upon in
reaching its decision a ‘legal’ consideration? Does it obliterate the idea that courts rely on both
legal and non–legal considerations in deciding cases?
Dworkin and Interpretative Approaches to Law
To resolve legal disputes, courts often need to interpret sources of law such as constitutions and
statutes and precedents, and they need to interpret the communications by which parties try to
order their own and others' legal rights and duties (such as leases and wills). Is interpretation a
technique for dealing with uncertainties and controversies as to the effect of such legal
instruments? Or does it take interpretation to answer any question of law? Is legal reasoning a
form of interpretation, or is it a form of reasoning that often requires interpretation?
Ronald Dworkin argues that law is an ‘interpretive concept’, by which he means that any true
statement of law is true because it follows from the best interpretation of the legal practice of the
community. We will consider Dworkin's claim that all questions of legal rights and obligations (in
what he calls 'easy cases' as well as what he calls 'hard cases') are to be answered by
interpreting the community’s legal practice in a way that shows that practice (as well as it can be
shown) to respect the rights of the members of the community.
, General Reading
Primary texts
•• Dworkin Taking Rights Seriously, esp. Chs. 2–5:
o Dworkin says that a descriptive account of law is useless: It only looks at the law from the
external perspective and is incapable of truly understanding the law from the POV of
participants. NB The descriptive account of Hart DOES take IPOV, as Hart points out in
his postscript.
o Dworkin states instead that useful theories of law must be ‘interpretive’ – one must
adopt an interpretive attitude. This involves inter alia bringing political convictions to bear
on the relevant data. It follows that legal theory must always be politically committed.
There is no room for value-free theorizing of the kinds set forth by Austin, Kelsen or Hart.
Hart responds that the way participants respond to the law can be recorded as a fact
within the descriptive approach: ‘description may still be description, even when what is
described is an evaluation’.
o Dworkin also criticizes positivism’s claim that value-free theories of law can exist. He
says that they may be denying the need for the interpretive attitude because they say that
we know what law is simply by attending to the way in which people use the word ‘law’ –
Dworkin calls this the ‘semantic sting’.
o This would mean that when people disagree about the law on any topic they are
disagreeing about questions of linguistic usage, and that would be such a silly view that
Dworkin charitably recasts positivists as theorists who do take up the interpretive attitude,
but the wrong one – conventionalism.
o Integrity: Why don’t we have checkerboard laws i.e. those that treat people in the same
situation differently. E.g. why don’t we make abortion legal on even years and illegal on
odd years, if the population is evenly split as to legalisation, and each person has equal
impact on the system? The checkerboard would surely be “fair” as it allows the views of
all people to be taken into account and reaches a compromise. Similarly it is just, since a
person who is opposed to abortion may consider a checkerboard solution more just than
full legalisation. He says the reason is “integrity”- i.e. that the law must take a decision
and justify it on the basis of the principles that it considers correct. A checkerboard
compromise undermines the principles for taking a particular decision, which integrity
demands.
o NB Dworkin says that the point of law is to justify coercion. NO: Hart’s postscript points
out that much of law is not concerned with coercion e.g. power-conferring rules.
• Hart The Concept of Law, Ch. 7 and Postscript:
➢ Sometimes cases are indeterminate i.e. the law is “open textured” (hard cases). Obviously
there must be discretion in such cases because “we are men, not gods” and therefore cannot
determine the outcome perfectly in uncertain cases. All legal systems have a tension
between the need for certainty and the need to leave the law open whether for fairness or for
future development. The courts have a “role producing function” in uncertain cases. Rule
scepticism is therefore valid in hard cases (Dworkin reject this).
