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Law as social Fact
Law as moral judgment about social facts
No necessary moral content of law
Law carrying integrity
Jurisprudence = analytical
Jurisprudence = general part of adjudication
Legal reasoning involves applying shared criteria for legal validity
Legal reasoning is a special form of moral reasoning
Jurisprudence often divided into "normative juri" (Rawls, Fuller,etc) and "analytical" juri (Hart). Some think that such distinction misleading because they are intertwined. Dworkin's Critique of Hart: Rules and Principles
Dworkin started by critiquing Hart, but then moved to develop own theory. So must first understand Dworkin's criticism of Hart. Dworkin takes issue with Hart's insistence that law develops entirely in reference to rule of recognition, and by way of Rigss v Palmer (if we understand the "rule" of testaments to be the "principle" that acts of legislature (in this case regarding wills) tells us that law develops in relation to legal principles which are different from rules in 3 ways:
1. Rules apply in all or nothing fashion, if rule applies, must decide that way. Principles guide decisions but don't give conclusive reason.
2. Valid rules cannot conflict and conflict must be remedied, valid principles can conflict.
3. Because can conflict, principles have dimension of weight that rules do not have. Principles and Positivism
Even if Dworkin right, what does this have to do with Legal Positivism? Hart is simply speaking of the necessary features of law, but does not deny possibility of continent sources of indeterminacy that may or may not be present in a particular legal system. Attack on positivism only comes when Dworkin tells us how legal principles are identified as part of law - not by RoR. Principles may exist without any court having vocalised them. Thus, we must engage in moral/political discussion of what principles should be invoked to justify black letter rules of law. Positivist response: Principles are identifiable by some form of RoR and principles not part of law because just morals?
A. Principles are identifiable by some form of RoR.?Coleman: moral principles which satisfy the RoR test are then law in virtue of the rule of recognition = 'inclusive legal positivism.' This is the view Hart himself adopts in his Postscript. Dworkin: Judges disagree about what the law is - e.g. in Riggs v Palmer --> but if law is rule-based, there can be no meaningful disagreement about the content of the law. --> Legal positivism cannot
incorporate moral principles into law because morality is essentially contestable --> RoR cannot pick out moral principles because the rule of recognition only exists if there is convergent behaviour among officials..
B. Principles not part of law because just morals?
Joseph Raz: something may be binding on legal officials without being law. Even if morality is binding upon judges (who are, after all, people and as such are bound by morality), it does not follow that morality is part of the law. Dworkin: If principles not part of law then rules are not binding. Positivist must think Riggs v Palmer was wrongly decided or that judges can change rule where they conflict with what judges think is best so not bound by rules at all and LP collapses into 'rule scepticism'
The Rule of Recognition and the Soundest Theory
Dworkin says not all moral principles are legal principles. So some argue that Dworkin himself needs a RoR to decide what are legal and what are non legal principles.
*Dworkin responds by pointing out that Hart's RoR identifies rules by source of enactment, not content, but legal principles are not identified by source of enactment, but by showing they are embedded in established rules and decisions. Enter Hercules, the ideal judge, who, when deciding a Hard case, will need to find some theory/principles to underpin legal rule. ? Thus Criterion that distinguishes legal from non legal principle is that legal principle is part of 'soundest theory of law' that can be offered as justification for established legal rules and institutions in a particular jurisdiction. NB that Hercules (unlike officials in RoR) does not seek to apply theory accepted by other judges, but the 'soundest' theory. Responses to Dworkin's early challenge
However, still not clear that Dworkin's attack is inconsistent with Hart's theory because Hart leaves open the content of RoR, doesn't claim that RoR identifies rules only by source or non-moral factors, himself points out that in places like US Constitution principles of justice or substantive moral values are part of ultimate criteria of validity.
*Dworkin's response: wrote "Law's Empire" Constructive Interpretation
Dworkin says legal theory (normative) inseparable from intellectual activity (analytical) and will offer us prescriptive guidance rather than "clarifying" our "concepts". For Dworking legal theorists = exercise of what Hercules does: interpreting practices. This is done by answering how practice should be followed and applied, questions that arise for participants (so we must take standpoint of participant not external observer).
The interpreter (whether a judge or a legal theorist) must 'join the practice he proposes to understand." (LE, 64)
In contrast to Hart, Dworkin claims that question of legal theory arise between participants, and
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