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RONALD DWORKIN’S THIRD THEORY

Ronald Dworkin
Duke Law Journal

Ronald Dworkin has dominated jurisprudential discussion over the past twenty years even
more completely than John Rawls has dominated discussion of ethics since the
publication of ‘A Theory of Justice' in 1971. He has been the phenomenon of our age. It
has often seemed that, if an author was not prepared to focus primarily on Dworkin's
work, he was not doing jurisprudence. Whether this domination of a field by one person
is a healthy phenomenon is another question. The importance of Dworkin's latest work,
‘Law's Empire’, however, lies not only in the fact that it will undoubtedly continue Dworkin's
domination of jurisprudential discourse, but also in the fact that it is his first real book. His
enormously successful ‘Taking Rights Seriously’ was a collection of previously published
essays, as was most of his second book, ‘A Matter of Principle’. Law's Empire, by
contrast, was written to be read as a coherent whole.

Dworkin began his domination of contemporary jurisprudence by attacking H.L.A. Hart's


concession that, at its penumbras, law was uncertain. It was the task of the judge to
resolve this uncertainty as best he could, given the legal sources available to him. In the
performance of this task, according to Hart, the exercise of some degree of judicial
discretion was inevitable. Dworkin set out to show that, even in cases where the
conventional sources of law did not seem to provide a clear answer, the courts were not
called upon to exercise the significant degree of discretion that Hart supposed.

Dworkin initially asserted that, when existing rules of law did not cover a case or when
the existing rules of law were in conflict, resort could be had to the "principles" embedded,
so to speak, in the legal system to ascertain the right decision of the case. He recognized
that a number of principles could point in competing directions and might even directly
conflict. A means for weighting principles was thus required. Neither Dworkin nor anyone
else has yet produced that weighted list of principles, however. Taking a slightly different
tack, Dworkin then asserted that, in difficult cases (the so-called hard cases), it is the task
of the judge "to find a coherent set of principles" that will justify his decision. These guiding
principles are to be selected "in the way that fairness requires" in light of the "institutional
history" of a society's legal structure. Pursuing this suggestion further, Dworkin next
claimed that in nearly all cases, at least in advanced and complex societies with long legal
traditions such as the United States or Great Britain, one set of principles, and the
decision they justify, would provide a better fit with that society's basic legal structure than
would a competing set of principles pointing to a different or even contrary decision.9
Dworkin did not, however, support this assertion; he assumed that it was obviously true.
He came to assume that there was some notion of "normative consistency" that could be
relied on to support his position. Furthermore, when one of those rare cases arises in
which no one set of principles is accepted as dispositive by most of the participants in the
legal enterprise, Dworkin thought that recourse should be had to what he called "moral
facts. These moral facts in some way proceed from political theory and ultimately produce
moral rights. Thus, in hard cases, when conventional legal theory cannot produce the
right answer, the right answer may still be found by asking what moral rights are at stake.
Dworkin claimed that it would be an extremely rare case, if any such case exist at all, for
which there would be no right answer.

In trying to meet the objections of his critics, Dworkin thus came to assume that there are
almost always "right answers" to the moral questions confronting a society. Otherwise,
under Dworkin's theory, there could not almost always be right answers to legal questions.
Seeking to support this thesis, Dworkin broadened the scope of his intellectual interests.
He became interested in interpretation and the similarity he detected between the task of
the literary critic trying to come up with the best interpretation of a literary text and the
task of the judge trying to come up with the best decision in the light of his society's legal
traditions-traditions informed ultimately by the basic morality underpinning that society. In
the course of expanding his intellectual focus, Dworkin openly came to acknowledge that
legal decisions are a species of political decision not merely because they necessarily
involve the application of power by state organs, but also because they are and must be
motivated by basic political theory. While some might think that law and politics are
diametrically opposed, Dworkin seemed driven to equate them. For him, politics is
ultimately premised on morality, and, as we have seen, it is only through resort to morality
that the legal system attains the closure that permits us to claim that there are indeed
right answers to almost all legal questions.

Analytic Jurisprudence

The principal objective of analytic jurisprudence has traditionally been to provide an


account of what distinguishes law as a system of norms from other systems of norms,
such as ethical norms. As per John Austria, it is the "the essence or nature which is
common to all laws that are properly so called. It pertains to providing necessary and
sufficient conditions for the existence of law that distinguish law from non-law.

To avoid confusion as to both the value and character of conceptual analysis in


philosophy of law, Brian Leiter, explained that the philosophy of law is one of the few
philosophical disciplines that takes conceptual analysis as its principal concern; most
other areas in philosophy have taken a naturalistic turn, incorporating the tools and
methods of the sciences. He also distinguished a number of different purposes that can
be served by conceptual claims, to track linguistic usage to stipulate meanings; to explain
what is important or essential about a class of objects; and to establish an evaluative test
for the concept-word.

Conceptual theories of law can be divided into two main headings, those that affirm there
is a conceptual relation between law and morality and those that deny that there is such
a relation. Ronald Dworkin's view is often characterized as a third theory partly because
it is not clear where he stands on the question of whether there is a conceptual relation
between law and morality. As provided by Internet Encyclopedia of Philosophy.
Third Theory

Ronald Dworkin rejects positivism's Social Fact Thesis on the ground that there are some
legal standards the authority of which cannot be explained in terms of social facts.
Nevertheless, judges must be characterized as law. Thus, Dworkin concludes, "if we treat
principles as law we must reject the positivists' first tenet, that the law of a community is
distinguished from other social standards by some test in the form of a master rule.

Dworkin believes that judges should decide hard cases by interpreting the political
structure of their community in the following, perhaps special way: by trying to find the
best justification they can find, in principles of political morality, for the structure as a
whole, from the most profound constitutional rules and arrangements to the details of, for
example, the private law of tort or contract. There are two elements of a successful
interpretation, first, since an interpretation is successful insofar as it justifies the particular
practices of a particular society, the interpretation must fit with those practices in the
sense that it coheres with existing legal materials defining the practices; second, since an
interpretation provides a moral justification for those practices, it must present them in the
best possible moral light. Thus, Dworkin argues, a judge should strive to interpret a case
in roughly the following way:

Dworkin's view is that the legal authority of a binding principle derives from the
contribution it makes to the best moral justification for a society's legal practices
considered as a whole. Thus, a legal principle maximally contributes to such a justification
if and only if it satisfies two conditions, the principle coheres with existing legal materials;
and the principle is the most morally attractive standard that satisfies. However, the
correct legal principle is the one that makes the law the moral best it can be.

Dworkin, in his later years, expands the scope of his "constructivist" view beyond
adjudication to encompass the realm of legal theory. Dworkin distinguishes
conversational interpretation from artistic/creative interpretation and argues that the task
of interpreting a social practice is more like artistic interpretation:

The most familiar occasion of interpretation is conversation. We interpret the sounds or


marks another person makes in order to decide what he has said. Artistic interpretation
is yet another: critics interpret poems and plays and paintings in order to defend some
view of their meaning or theme or point. The form of interpretation we are studying-the
interpretation of a social practice-is like artistic interpretation in this way: both aim to
interpret something created by people as an entity distinct from them, rather than what
people say, as in conversational interpretation.

Artistic interpretation, like judicial interpretation, is constrained by the dimensions of fit


and justification: constructive interpretation is a matter of imposing purpose on an object
or practice in order to make of it the best possible example of the form or genre to which
it is taken to belong.
Dworkin pointed out that any general theory of law is to interpret a very complex set of
related social practices that are created by people as an entity distinct from them; for this
reason, Dworkin believes the project of putting together a general theory of law is
inherently constructivist:

General theories of law must be abstract because they aim to interpret the main point and
structure of legal practice, not some particular part or department of it. But for all their
abstraction, they are constructive interpretations: they try to show legal practice as a
whole in its best light, to achieve equilibrium between legal practices as they find it and
the best justification of that practice. So no firm line divides jurisprudence from
adjudication or any other aspect of legal practice.

Jurisprudence is no more than the most general part of adjudication. Hence, any judge's
opinion is itself a piece of legal philosophy.

Hart distinguishes two perspectives from which a set of legal practices can be understood.
A legal practice can be understood from the internal point of view of the person who
accepts that practice as providing legitimate guides to conduct, as well as from the
external point of view of the observer who wishes to understand the practice but does not
accept it as being authoritative or legitimate. However, Dworkin rejects not only
positivism's Social Fact Thesis, but also what he takes to be its underlying
presuppositions about legal theory.

Hart understands his theory of law to be both descriptive and general in the sense that it
provides an account of fundamental features common to all legal systems which
presupposes a point of view that is external to all legal systems. For this reason, he
regards his project as "a radically different enterprise from Dworkin's conception of
jurisprudence as in part evaluative and justificatory and as addressed to a particular legal
culture, which is usually the theorist's own and in Dworkin's case is that of Anglo-American
law.

These remarks show Hart believes Dworkin's theoretical objectives are fundamentally
different from those of positivism, which, as a theory of analytic jurisprudence, is largely
concerned with conceptual analysis. Dworkin conceives his work as conceptual but not
in the same sense that Hart regards his work:

All lawyers share a concept of law and of legal right, and we contest different conceptions
of that concept. Positivism defends a particular conception. Lawyers disagree about what
legal rights are in much the same way as philosophers argued about justice disagree
about what justice is.

These differences between Hart and Dworkin have led many legal philosophers, most
recently Bix, to suspect that they are not really taking inconsistent positions at all.
Accordingly, there remains an issue as to whether Dworkin's work should be construed
as falling under the rubric of analytic jurisprudence. (Internet Encyclopedia of Philosophy)
3 Stages in Dworkin’s Theory of Interpretation
Boston University Law Journal

Published in Boston University’s law journal, justice for Hedgehogs offers a new theory
of interpretation, and it also represents the culmination of decades of theorizing by Ronald
Dworkin. There are 3 Stage of his theory; two was developed in his book Law’s Empire
and is the basis for his theory, law as integrity. Stage three is found in Justice for
Hedgehogs. Dworkin may or may not accept this three-stage sequence as an adequate
reconstruction of the positions he intended to convey, but the three stages do represent
distinct moments in the understandings of his readers and interlocutors.

Fit and Justification (Hard Cases)

Dworkin offered a view of interpretation, in hard cases that seemed to distinguish between
easy cases, where the legal sources did the work, and hard cases, in which judges were
required to move beyond the rules that were explicit in legal texts (such as constitutional
provisions, statutes, and cases) and resort to principles. At this stage, Dworkin explicitly
distinguished between the criteria of fit and justification, and seemed to suggest a two-
step process.
Step 1: identify the set of possible legal rules that fits the existing institutional history. If
there is only one rule that fits, or if all the rules that fit favor the same resolution of the
case, then we need not proceed beyond step one.
Step 2: select from among those rules on the basis of the principles or values that provide
the best justification for that institutional history.

Law’s Empire

Dworkin offered a more fully developed and systematic theory of the law, the law as
integrity; this theory is an application of the more general method that he calls
interpretivist. That theory seemed to differ from the theory offered in Hard Cases in
several respects, but for our purpose, one of these differences is particularly important.
Dworkin adopts the position that the method for deciding hard cases and easy cases is
identical, and this seems to imply that Dworkin parts company with Hart on the related
notion that there is a sharp distinction between the core and penumbra of a legal rule. In
this second stage of development, interpretation begins with construction of the normative
theory that best justifies the institutional history, including the texts of the authoritative
legal materials. That theory then supplies the content of the law. Of course, fit still plays
a role in a certain sense. The normative theory is a theory that provides the best possible
justification for the institutional history of a particular community, and that history includes
constitutional provisions, statutes, and court decisions. Thus, the normative theory must
fit the institutional history. But if it turns out that the best normative theory requires that a
particular case be decided in a way that is contrary to the core of an existing legal text,
then the normative theory prevails and the seeming core of the legal rule must give way.
We could call this implication of Dworkin’s theory, the instability-of-the-core thesis.
Whereas the theory of interpretation offered in Hard Cases seemed to be a two-step
theory, the theory offered in Law’s Empire looked like a one-step theory. Fit and
justification were not two distinct moments in the interpretive enterprise; rather,
justification now does all the normative work and fit merely identifies that which must be
justified.

Different comprehensive moral theories will give different justifications for a judicial
obligation of fidelity to law; for example, consequentialists might argue that judicial
adherence to the law produces better consequences than the alternatives. The next stage
in the objection argues that in hard cases, judges should have direct recourse to the first-
best moral theory but it doesn’t permit them to do so. Instead, Dworkin’s ideal judge,
Hercules, must decide on the basis of the moral theory that best justifies the law as a
whole, and if the law contains substantial moral mistakes, as it surely does, then this
moral theory will systematically vary from the first-best moral theory. Thus, we might call
the moral theory that Hercules constructs the “second-best moral theory.” The objection
then concludes that law-as-integrity requires judges to adhere to the second-best moral
theory in hard cases, when it is plain that in such cases, our best theory of morality would
require that the judge act directly on the basis of the first-best moral theory itself.

The first-best moral theory does indeed require that judges decide on the basis of the
theory that best fits and justifies the law as a whole. Indeed, there are passages in Law’s
Empire that seem to aim at this conclusion. But there is a problem with the execution of
this strategy; in Law’s Empire, Dworkin does not offer a comprehensive theory of morality.
This means that Dworkin’s critics are free to argue that Dworkin is mistaken about the
moral attractiveness of law as integrity, because there are good and sufficient reasons to
affirm a comprehensive moral theory that implies that law as integrity is not correct.

Justice for Hedgehogs (The Unity of Interpretation)

Dworkin argues that both law and morality are interpretive. In addition, he argues that
interpretation is a general normative practice, and that law and morality, as well as a
variety of other human activities, are best understood as instances of interpretation.
Indeed, it turns out that the normative standards that govern every human activity except
science are interpretive.

The Theory’s Account of Statutory Interpretation


Yale Law Journal

According to a standard account of what statutory interpretation involves, in interpreting


a statute, it seek the meaning or, better, the linguistic content of the statutory text. This
account is assumed without argument by both the majority and dissenting opinions in
Smith. Smith highlights a serious problem for this account, however. As the contemporary
study of language and communication has made clear, there are multiple components
and types of linguistic content. In Smith, there are at least two types of linguistic content
plausibly associated with the statutory text that would yield opposite outcomes in the
case. First, there is the semantic content of the statutory text roughly, what is
conventionally encoded in the words. Second, there is the communicative content
roughly, what the legislature intended to communicate (or meant) by enacting the relevant
text.
The familiar account according to which interpreting a statute is extracting its linguistic
content has no way of adjudicating between multiple linguistic contents of the statutory
text. The statutory text in Smith has both a semantic content and a communicative
content, and they point in opposite directions. The account therefore offers no answer to
the problem posed by Smith’s trading a gun for cocaine.

The second main view is that of Ronald Dworkin, which, though well-known and
influential, is far less widely accepted. Dworkin conceives of the law as an underlying,
idealized source from which all legal practices flow. More specifically, the content of the
law is the set of principles that best morally justifies past legal and political practices.
Dworkin famously explicated the relevant kind of moral justification with his notions of fit
and justification.

The Moral Impact Theory, like Dworkin’s theory and unlike the Standard Picture, holds
that the relation between legal practices and the law is a moral one. But, unlike Dworkin’s
theory, the Moral Impact Theory holds that the law is the moral impact or effect of certain
actions of legal institutions rather than the set of principles that best justify them. To use
a spatial metaphor, on the Moral Impact Theory, the law is downstream of the legal
practices; on Dworkin’s theory, by contrast, the law is upstream of the legal practices.

Moral Impact Theory: first, the distinctive form of interpretation according to which the
basic question is which interpretation would make the legal system the best it can be, or,
more specifically, which principles best morally justify the practices of the system. In fact,
according to the Moral Impact Theory, working out the content of the law is not a genuinely
hermeneutic enterprise rather, it involves straightforward moral reasoning about the moral
consequences of various facts and circumstances. Second, according to the Moral Impact
Theory, the content of the law is a subset of what morality, taking into account all the
relevant considerations, requires. By contrast, there is no obvious reason why the set of
principles that best morally justifies the actual practices of a legal system would be a
subset of what morality requires. Certainly, Dworkin never argues for or even suggests
any such claim. Dworkin accepts that legal requirements may not be moral requirements,
indeed that law may be too immoral to enforce. Finally, the Moral Impact Theory does not
license an argument that because a standard would be a morally good one ex ante, it is
part of the content of the law. On Dworkin’s view, however, the fact that a principle is
more morally justified counts in favor of its being part of the content of the law.

In terms of the heuristic that Dworkin often used to explain his account of legal
interpretation, it involves finding the most morally justified interpretation that sufficiently
well fits the legal practices. The Moral Impact Theory rejects both understandings of legal
interpretation. When the relevant actions do involve issuing texts, the linguistic content of
those texts is only one relevant consideration in the calculation of the moral impact of the
actions.
The prominence of the Standard Picture and the Dworkinian view may make it seem that
there is a stark choice: either legal interpretation does not involve moral reasoning or it
involves the kind of moral reasoning that Dworkin spells out moral reasoning directed at
answering the question of which candidate interpretation makes the legal system the best
it can be, to use Dworkin’s phrase. The Moral Impact Theory opens a third way: legal
interpretation involves moral reasoning about what is required as a consequence of the
relevant lawmaking actions.

Dworkin’s Concept of Legal Theory


University of Chicago Law School Journal

Dworkin's idea of theory, specifically of the kind that should guide judges faced with
difficult cases, requires that judges justify legal claims by showing that principles that
support those claims also offer the best justification of more general legal practice in the
doctrinal area in which the case arises. The best justification is the one that fits the legal
practice better, and puts it in a better light. In determining fit, the judge may find himself
swept up in a process that Dworkin calls justificatory ascent. The judge finds himself
challenged to consider how the justification that he has seized upon coheres with ever
broader swatches of legal doctrine as questions are raised about its consistency with this
or that legal or moral rule or principle. The concept of justificatory ascent is Dworkin's
acknowledgment that judges more often reason upward from particular cases and
arguments than downward from an overarching principle-such as egalitarianism, or
utilitarianism, or Mill's conception of liberty-that makes the whole body of the law
consistent. But he insists that through justificatory ascent a judge may be lofted to a high
level of generality.
Dworkin equates theory to philosophy to treating the entire Constitution, and through
justificatory ascent the entire body of American law, as an integrated structure of moral
and political principles.
Dworkin insists that theory is a word with no fixed or definite meaning, at least in normative
discourse. Scientists, including social scientists, generally understand by theory an
abstract, logically consistent model of causal relationships, applicable to some domain of
physical reality or social practice, from which hypotheses can be deduced that can be
confirmed or refuted with objective data generated by experimental or other systematic
observation. The successes of the natural sciences have induce practitioners of other
disciplines to describe their own work as theory. Yet what should count as, say, a moral
or a legal theory, or more precisely what these terms exclude, is completely unsettled.
Some moral theories have the approximate form of the scientist's hypothetical-deductive
conception of theory. They set forth and defend a logical model that has implications for
specific moral issues, and they use the moral intuitions of the theorist, or of the theorist's
moral community, as the data to confirm or refute the hypotheses. Some moral theorists
insist that even our most deeply intuitive moral principles should, if necessary, be
changed to conform to the theory. A typical legal theory is far more modest-a mere
generalization that is claimed to subsume the leading cases in a particular field or subfield
of law.
More ambitious legal theories, such as Bork's theory of free speech that Dworkin found
insufficiently theoretical, use principles drawn from other fields of discourse, such as
economics or political theory, as criteria for evaluating specific legal doctrines and
decisions. Some degree of generality or abstraction, and an insistence on consistency,
are the bedrock requirements of theory. Beyond this it does not seem possible to specify
preconditions for what is to count as a moral or a legal theory.
Dworkin means that this conception of legal theory is in the line of descent from
Wechsler's influential article on neutral principles, which in turn has affinities to the legal
process school and to natural law, to both of which Dworkin has fairly direct links, and on
the side of philosophy to the approach of Kant, as contrasted with that of Aristotle. The
heart of Dworkin's conception, as earlier the conception of legal theory held by. Wechsler
and by Hart and Sacks, is the imposition of master themes, such as democratic
legitimacy, or federalism, or relative institutional competence, or equality, on the
particulars of the law.
Justificatory ascent should not be confused with induction. After the judge has reached
the top, he kicks away the ladder. He accepts, by being forced to climb the ladder, that
he cannot decide the case without adopting a master principle, but once it is adopted it
decides the case. The top-down quality of the approach is shown by its practitioners' lack
of serious, sustained interest in legal particulars from either a doctrinal or an empirical
standpoint. As illustrated by the Philosophers' brief that so strikingly fails to engage the
many difficult institutional issues raised by its proposal of a constitutional right to
physician-assisted suicide, there is little texture to Dworkin's analysis of legal issues, just
as there was little texture to Hart and Sacks, or to Wechsler's. Dworkin operates with ideal
types of affirmative action, pornography, and abortion, just as Hart and Sacks operated
with ideal types of the court, the legislature, and the administrative agency, and Wechsler
with an ideal type of apartheid, in which the harm to blacks from being prevented from
associating with whites is exactly balanced by the harm to whites from being forced to
associate with blacks. Dworkin's principles are different but the approach is the same,
except that Dworkin evinces even less interest than Hart and Sacks or Wechsler in how
a legal system actually works, in the practical capacities and political constraints of
judges, in the text and history of particular enactments, in the difference between holding
and dicta, in the data and theories of the social sciences that relate to the issues that
arise in the legal cases that interest him, or in the effects of legal rules. Dworkin's is one
possible way of doing law, but it is not the only way that can claim to be theoretical.
References:

http://www.bu.edu/law/journals-archive/bulr/documents/solum.pdf

http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=5749&context=journal_
articles

http://www.iep.utm.edu/law-phil/#SH1c

http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2977&context=dlj

http://www.yalelawjournal

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