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).
, Hart refutes (in postscript) the semantic sting argument deployed by Dworkin. He says that he
never suggested all judges had one conception of what law is, merely that they share a belief
in what criteria need to be fulfilled for it to be applied. He never claimed that the RoR is used
to say what a law “is”.
Hart also says that his theory is capable of incorporating moral criteria or principles within the
rule of recognition, so that he is NOT a “plain fact positivist” as Dworkin claims (For objections
to Hart’s soft positivism concessions see Raz week 2 reading).
Hart denies that his positivism = what Dworkin terms conventionalism. Conventionalism’s
point according to Dworkin is to justify coercion, whereas Hart does not claim this. Hart says
that coercion is used when the law’s primary methods (promulgation of laws etc) breaks
down, so that he certainly does not consider the law’s aim.
Hart rejects Dworkin’s claim that soft positivism is inconsistent with the positivist aim to
provide certain, value-free criteria for identifying law (Dworkin is right here- see Raz week 2
notes). Hart says positivism is not minded to maintain absolute certainty but can make
concessions, so that the courts can make an informed decision in hard cases.
Hart says the difference between rules and principles is not so profound- it is a matter of
degree of conclusiveness. In Riggs v Palmer, which Dworkin often cites (man murdering his
grandfather to get the will) a principle (that a man shouldn’t profit from his own wrongdoing)
overcame contradictory statutory rules on wills, demonstrating how the distinction between
rules and principles is not so sharp as Dworkin claims. Thus principles can be legally binding
if recognised as such by RoR and Hart concedes that he was wrong not to consider principles
initially. Thus he goes on to make a half-concession: That laws can include moral standards
but do not have to in order to be valid.
Most importantly, Hart denies that positivists like himself set out to show law in its best light.
They seek to provide general information about social institutions and to explain how claims
concerning validity, obligations, rights, etc figure within such institutions. We need, Hart
maintains, a clear understanding of these matters as a precursor to evaluative theories.
In fact, he says, we can make propositions about the function of law without committing
ourselves as to whether these are valuable functions. Arguments for positivism are backed
up by professional practice – lawyers can convey information about law without apparently
committing themselves on questions of political morality – they may even describe the laws of
past, foreign or unjust legal systems.
Secondary texts
• Harris Legal Philosophies, Ch.14:
, ● Judges often take into account what the law ought to be in assessing whether X is a correct
interpretation e.g. “if that interpretation is correct then Y must be true which would be
unfair/illogical etc”.
● Dworkin says law isn’t something we give information about: it is something we argue about:
Discovery of law requires “constructive interpretation” i.e. the discovery of law involves finding
the morally truest statements about the rights of citizens which will fit the legal materials. This
is his “rights thesis”. NB if true then we cannot complain about result based reasoning or the
ensuing legal uncertainty.
● Dworkin says principles are legal and bind judges- see week 1 reading. This attacks the idea
of law as a system of rules only. Principles are different from rules since rules are either “all or
nothing” (2 conflicting rules cannot both exist) whereas principles “have a dimension of
weight”.
● Hart’s postscript argues that principles can enter law but only when validated by a superior
rule e.g. the rule of recognition. He also refutes that principles and rules differ in logical type:
he says the difference is one of degree: rules simply have more conclusive force but, like
principles, can be overridden.
● Dworkin denied the positive solution to where law runs out or “hard cases” (that judges have
a strong discretion to make law) and instead says that judges have no discretion: they are
bound by principles.
● The correct constructive interpretation will depend on which has the closes fit with the data
available and has political merit. Therefore law is interpreted in a moral way.
● How is state coercion to be justified? Three possible answers: Conventionalism (see week 1
reading); Legal pragmatism; or “law as integrity” (Dworkin’s answer).
o Conventionalism is bad as there often are no clear social conventions guiding the
application of law and when this is the case conventionalism provides no
justification for depriving people of their liberty, property etc. For Dworkin,
positivism = conventionalism.
o Legal Pragmatism says that there are no just grounds for state force. Since law =
justified coercion, there is no law, but merely a fiction that certain provisions
create legal consequences on pragmatic grounds. In so doing, the political
pragmatist favours whatever political goals he considers best. Dworkin rejects
this- judges and lawyers are not simply making up rules.
o Law as integrity says that coercion is justified where the community exhibits the
virtue of integrity i.e. so long as the community has a well thought out system of
values it has integrity. Dworkin says this explains why past political decisions
(taking effect in statute or precedent) still bind. This explains legal controversy:
disputes are not merely about the applicable social conventions, but what would
show the community’s treatment of its subjects in the best light i.e. law = the best
politics that fits the legal materials.
● Dworkin says the best politics (and that which therefore is used by the courts etc) is that of
“fraternity” i.e. shared responsibility for actions, concern for all equally etc. This standard of
integrity turns community force into law. Thus there is a fundamental right to be given equal
concern in the construction of law, which means giving everyone basic rights.
● Dworkin says that either positivists do believe in interpretation but in a value free way
(conventionalism, which he claims is false) OR deny the need for an interpretative attitude
because they say we know what law is by looking at the way ordinary people use the word
“law”. If it’s the second, lawyers who have a dispute about the law are really arguing purely
about linguistic usage, which would be absurd. Harris says the semantic sting argument is
bizarre: none of the positivists claim law is only used in one sense. How positivists like Hart
would apply the law is by seeing whether it fits their model e.g. complies with RoR etc, NOT
whether a rule can be defined as a law in accordance with ordinary use of language.
● Hart rejected Dworkin’s starting point (that law is primarily coercion- only Kelsen said 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).
, Hart refutes (in postscript) the semantic sting argument deployed by Dworkin. He says that he
never suggested all judges had one conception of what law is, merely that they share a belief
in what criteria need to be fulfilled for it to be applied. He never claimed that the RoR is used
to say what a law “is”.
Hart also says that his theory is capable of incorporating moral criteria or principles within the
rule of recognition, so that he is NOT a “plain fact positivist” as Dworkin claims (For objections
to Hart’s soft positivism concessions see Raz week 2 reading).
Hart denies that his positivism = what Dworkin terms conventionalism. Conventionalism’s
point according to Dworkin is to justify coercion, whereas Hart does not claim this. Hart says
that coercion is used when the law’s primary methods (promulgation of laws etc) breaks
down, so that he certainly does not consider the law’s aim.
Hart rejects Dworkin’s claim that soft positivism is inconsistent with the positivist aim to
provide certain, value-free criteria for identifying law (Dworkin is right here- see Raz week 2
notes). Hart says positivism is not minded to maintain absolute certainty but can make
concessions, so that the courts can make an informed decision in hard cases.
Hart says the difference between rules and principles is not so profound- it is a matter of
degree of conclusiveness. In Riggs v Palmer, which Dworkin often cites (man murdering his
grandfather to get the will) a principle (that a man shouldn’t profit from his own wrongdoing)
overcame contradictory statutory rules on wills, demonstrating how the distinction between
rules and principles is not so sharp as Dworkin claims. Thus principles can be legally binding
if recognised as such by RoR and Hart concedes that he was wrong not to consider principles
initially. Thus he goes on to make a half-concession: That laws can include moral standards
but do not have to in order to be valid.
Most importantly, Hart denies that positivists like himself set out to show law in its best light.
They seek to provide general information about social institutions and to explain how claims
concerning validity, obligations, rights, etc figure within such institutions. We need, Hart
maintains, a clear understanding of these matters as a precursor to evaluative theories.
In fact, he says, we can make propositions about the function of law without committing
ourselves as to whether these are valuable functions. Arguments for positivism are backed
up by professional practice – lawyers can convey information about law without apparently
committing themselves on questions of political morality – they may even describe the laws of
past, foreign or unjust legal systems.
Secondary texts
• Harris Legal Philosophies, Ch.14:
, ● Judges often take into account what the law ought to be in assessing whether X is a correct
interpretation e.g. “if that interpretation is correct then Y must be true which would be
unfair/illogical etc”.
● Dworkin says law isn’t something we give information about: it is something we argue about:
Discovery of law requires “constructive interpretation” i.e. the discovery of law involves finding
the morally truest statements about the rights of citizens which will fit the legal materials. This
is his “rights thesis”. NB if true then we cannot complain about result based reasoning or the
ensuing legal uncertainty.
● Dworkin says principles are legal and bind judges- see week 1 reading. This attacks the idea
of law as a system of rules only. Principles are different from rules since rules are either “all or
nothing” (2 conflicting rules cannot both exist) whereas principles “have a dimension of
weight”.
● Hart’s postscript argues that principles can enter law but only when validated by a superior
rule e.g. the rule of recognition. He also refutes that principles and rules differ in logical type:
he says the difference is one of degree: rules simply have more conclusive force but, like
principles, can be overridden.
● Dworkin denied the positive solution to where law runs out or “hard cases” (that judges have
a strong discretion to make law) and instead says that judges have no discretion: they are
bound by principles.
● The correct constructive interpretation will depend on which has the closes fit with the data
available and has political merit. Therefore law is interpreted in a moral way.
● How is state coercion to be justified? Three possible answers: Conventionalism (see week 1
reading); Legal pragmatism; or “law as integrity” (Dworkin’s answer).
o Conventionalism is bad as there often are no clear social conventions guiding the
application of law and when this is the case conventionalism provides no
justification for depriving people of their liberty, property etc. For Dworkin,
positivism = conventionalism.
o Legal Pragmatism says that there are no just grounds for state force. Since law =
justified coercion, there is no law, but merely a fiction that certain provisions
create legal consequences on pragmatic grounds. In so doing, the political
pragmatist favours whatever political goals he considers best. Dworkin rejects
this- judges and lawyers are not simply making up rules.
o Law as integrity says that coercion is justified where the community exhibits the
virtue of integrity i.e. so long as the community has a well thought out system of
values it has integrity. Dworkin says this explains why past political decisions
(taking effect in statute or precedent) still bind. This explains legal controversy:
disputes are not merely about the applicable social conventions, but what would
show the community’s treatment of its subjects in the best light i.e. law = the best
politics that fits the legal materials.
● Dworkin says the best politics (and that which therefore is used by the courts etc) is that of
“fraternity” i.e. shared responsibility for actions, concern for all equally etc. This standard of
integrity turns community force into law. Thus there is a fundamental right to be given equal
concern in the construction of law, which means giving everyone basic rights.
● Dworkin says that either positivists do believe in interpretation but in a value free way
(conventionalism, which he claims is false) OR deny the need for an interpretative attitude
because they say we know what law is by looking at the way ordinary people use the word
“law”. If it’s the second, lawyers who have a dispute about the law are really arguing purely
about linguistic usage, which would be absurd. Harris says the semantic sting argument is
bizarre: none of the positivists claim law is only used in one sense. How positivists like Hart
would apply the law is by seeing whether it fits their model e.g. complies with RoR etc, NOT
whether a rule can be defined as a law in accordance with ordinary use of language.
● Hart rejected Dworkin’s starting point (that law is primarily coercion- only Kelsen said this).
