Dworkin and interpretivism

Dworkin is best understood as Hart’s most important internal critic. He does not merely add morality to law in the manner of a simple natural lawyer, nor does he deny that statutes, precedents and institutions matter. His claim is more exacting: legal rights and duties are those that follow from the best constructive interpretation of the community’s legal practice. The lawyer does not first identify law by a social rule of recognition and then ask whether morality should affect its application. Rather, the identification of legal rights already involves interpretive judgment about which principles make the existing legal materials the best they can be.

For Cambridge Part II purposes, the central contrast is with the positivism studied in Week 1. Hart’s model explains law through social sources: a legal system exists where officials accept secondary rules, especially a rule of recognition, from an internal point of view. Dworkin argues that this picture is defective in hard cases. Courts do not simply exercise discretion when rules run out. They reason from principles, such as fairness, equality, reliance, due process and political responsibility, and they treat those principles as already part of law. The disagreement is therefore not simply about judicial technique. It is a disagreement about the nature of legal validity and the relation between legality and political morality.

Dworkin’s interpretivism has two famous components. First, law includes principles as well as rules. Principles differ from rules because they have weight rather than all-or-nothing application. Secondly, adjudication is constructive interpretation. An interpreter asks which account of the law both fits the institutional history and justifies it in its best moral light. Dworkin’s ideal judge, Hercules, has superhuman knowledge and patience, but the device is not meant to describe actual judges psychologically. It is a model of responsibility: judges must treat litigants as having rights, not merely as recipients of retrospective policy choices.

The mature theory in Law’s Empire is law as integrity. The state must speak with one principled voice. Integrity is not bare consistency, nor is it simple justice unconstrained by legal materials. It is the ideal that coercive state action should be justified by principles which make sense of the community’s past political decisions as a coherent scheme. This is why Dworkin rejects both conventionalism, which treats law as exhausted by social conventions, and pragmatism, which treats adjudication as forward-looking social engineering.

A good Tripos essay should avoid caricature. Dworkin is not saying judges may impose their own morality. Nor is he saying every hard case has an easy answer. He says there is, in principle, a right answer to legal questions because legal reasoning is an interpretive practice governed by standards of fit and justification. The strongest criticism is not that morality sometimes enters law; positivists can accept that. The stronger positivist answer, developed by Raz, Coleman and Shapiro in different ways, is that Dworkin confuses disagreement about what the law ought to be with disagreement about what legal sources require, or that his theory threatens law’s capacity to guide by identifiable social facts. The best essays show exactly where that dispute lies.

Dworkin’s theory emerges from a particular moment in Anglo-American jurisprudence. In the mid-twentieth century, legal positivism had been restated with great subtlety by HLA Hart. Hart rejected Austin’s command theory and replaced it with the union of primary and secondary rules. Law was not the gunman situation writ large; it was a rule-governed institutional practice in which officials accepted standards for identifying valid law. Hart also accepted a distinction between the core and penumbra of rules. In easy cases rules determine outcomes; in penumbral cases judges exercise discretion, though not arbitrary discretion, by making law for the future.

Dworkin’s early essays, especially The Model of Rules and Hard Cases, are directed at that Hartian settlement. The immediate target is the positivist thesis that legal validity depends on pedigree, not content. Dworkin’s examples, drawn from American private law and constitutional law, are designed to show that courts often rely on standards that do not have the pedigree of enacted rules yet are treated as legal reasons. The classic examples are Riggs v Palmer, where a murderer was prevented from inheriting under his victim’s will, and Henningsen v Bloomfield Motors, where a manufacturer’s limitation clause was not allowed to defeat consumer protection values. English lawyers should not be distracted by the American provenance of the examples. The point is general: adjudication frequently invokes principles that cannot be reduced to explicit rules.

The second historical background is the post-war anxiety about legality and injustice. Natural lawyers such as Fuller had argued that law has an internal morality: generality, publicity, prospectivity, clarity, consistency, possibility of compliance, constancy and congruence. Finnis, from a different natural law tradition, treated law as a reasoned contribution to the common good. Dworkin shares the rejection of a morally inert account of law, but he does not adopt the classical natural law thesis that unjust law is not law. He is concerned less with metaphysical participation in reason and more with adjudicative responsibility in a constitutional democracy. The relevant moral question is not simply whether a norm is just, but whether it forms part of the best principled interpretation of legal practice.

The third background is American constitutionalism. Dworkin was writing in the aftermath of Brown v Board of Education, the Warren Court, civil rights litigation and fierce debates about judicial review. He opposed both mechanical originalism and free-form judicial activism. His conception of rights as trumps against collective goals gave a moral defence of constitutional adjudication: courts are legitimate when they enforce the rights that flow from the best interpretation of the community’s constitutional principles.

For Cambridge students, two warnings follow. First, do not treat Dworkin as a mere continuation of Fuller or Finnis. He is an interpretivist, not a traditional natural lawyer. Secondly, do not treat Hart and Dworkin as disagreeing only about whether judges are creative. The deeper disagreement concerns the grounds of law. Hart thinks the ultimate criteria of validity are social facts accepted by officials. Dworkin thinks that the grounds of law include interpretive principles that cannot be captured by a purely conventional master rule. The Hart-Dworkin debate therefore becomes a debate about whether legal theory can be descriptive and morally neutral, or whether any adequate account of legal practice must already engage with political morality.

1. Rules and principles

Dworkin’s first move is to deny that law consists only of rules. Rules apply in an all-or-nothing way: if the conditions are satisfied, the rule determines the outcome unless an exception applies. Principles, by contrast, have a dimension of weight. A principle may count strongly in one direction without conclusively determining the result. It may be outweighed by another principle without being invalidated. This distinction matters because legal reasoning regularly involves weighing principles rather than applying pedigree rules.

The positivist can answer that principles may be law if the rule of recognition incorporates them, or that judges may be morally guided when legal rules are indeterminate. Dworkin’s reply is sharper: judges and lawyers argue about principles as legal rights, not merely as moral suggestions. A litigant who invokes equality, fairness or legitimate expectation is not asking the court to legislate benevolently; he claims that the law, properly understood, already protects him.

1. The critique of discretion

Hart’s account of judicial discretion is modest. In hard cases judges do not apply pre-existing law; they exercise a limited law-making power. Dworkin objects that this misdescribes adjudication and offends legality. If a judge creates a new legal duty after the events, the losing party is retrospectively burdened. Dworkin therefore insists that even hard cases are governed by existing legal rights, though identifying those rights may be difficult and controversial.

This does not mean judges mechanically discover answers. Dworkin’s judge must interpret legal materials in the light of principle. But interpretive judgment is not the same as unconstrained legislation. It is disciplined by institutional history and by the requirement of justification.

1. Constructive interpretation

Constructive interpretation has three stages. At the pre-interpretive stage, the interpreter identifies the rough data of the practice: statutes, precedents, constitutional arrangements, institutional roles and settled doctrines. At the interpretive stage, the interpreter proposes a justification for the practice. At the post-interpretive stage, the interpreter adjusts his understanding of what the practice requires in the light of that justification.

This three-stage account explains why Dworkin is neither a source positivist nor a pure moralist. Fit matters: an interpretation that ignores statutes and cases is not an interpretation of this legal system. Justification matters: where more than one interpretation fits, the better one is the account that gives the practice greater moral coherence.

1. Fit and justification

Fit is the threshold condition. A proposed legal interpretation must cohere sufficiently with the legal materials. It need not fit every decision; legal history contains mistakes and compromises. But it must make sense of enough of the practice to count as an interpretation rather than an external reform proposal.

Dworkin’s own canonical cases are American, but a Cambridge answer should be capable of testing interpretivism against English legal practice. The point is not that any one case proves Dworkin correct. It is that many leading cases are difficult to explain if law is presented as a closed catalogue of pedigree rules.

Ex parte Simms is the cleanest illustration. The issue concerned prisoners’ access to journalists, but the jurisprudential significance lies in the principle of legality. Lord Hoffmann’s reasoning treats fundamental rights not as external moral considerations but as internal constitutional principles shaping the meaning of statutes. A strict source positivist can respond that the principle of legality is a judge-made rule whose validity depends on judicial acceptance. Dworkin’s stronger account is that such acceptance is intelligible because legality gives the law its best political justification.

Ghaidan v Godin-Mendoza is equally useful. The House of Lords interpreted tenancy legislation compatibly with Convention rights by treating a same-sex partner as capable of succeeding as a spouse-like survivor. The case shows how statutory language, legislative purpose and equality principle interact. The court did not simply disregard the statute. It asked how far interpretation could go while remaining faithful to the legislative scheme. That resembles Dworkin’s fit and justification structure.

R v R is useful for common law development. The House of Lords abolished the marital rape exemption. A crude positivist might describe this as judicial law-making. Dworkin would ask whether the supposed exemption still fitted the principles of equality, bodily integrity and modern criminal law. The court’s reasoning can be presented as reinterpretation of the common law rather than retrospective legislation.

A v Secretary of State for the Home Department, the Belmarsh case, demonstrates the judicial use of constitutional principle against executive and legislative judgment. The House of Lords held that indefinite detention of foreign terrorist suspects was incompatible with Convention rights. Dworkin’s rights-as-trumps thesis is directly relevant: security policy cannot automatically defeat individual rights. Critics will answer that the Human Rights Act supplied the legal source and that the judicial role was institutionally limited to a declaration of incompatibility.

Evans and Miller show interpretivism in constitutional law. Evans limited the Attorney General’s power to override a judicial decision about disclosure. Miller held that ministers could not use prerogative power to alter domestic law and remove statutory rights without parliamentary authority. Both cases turn on principles of legality, accountability and parliamentary sovereignty. They are not mere exercises in semantic interpretation. Their importance lies in the way judges articulate the constitution as a principled structure.

Finally, Gillick remains a good example of common law reasoning in moralised terms. The House of Lords rejected an absolute parental veto over contraceptive advice for children under sixteen. The decision is not Dworkinian in vocabulary, but it shows legal reasoning through principles of welfare, autonomy, parental responsibility and professional judgment. A Dworkinian can say that such principles are part of the law because they best justify the doctrine.

In the Tripos, use cases sparingly and analytically. A jurisprudence essay is not a case note. Each case should be made to do theoretical work: does it show principles operating as law, judicial discretion, moralised interpretation, constitutional integrity, or positivist incorporation?

See practice questions section below.

See further reading section below.