Dworkin and interpretivism

Ronald Dworkin (1931–2013) is the central critic of twentieth-century legal positivism and the architect of interpretivism, the view that law is not merely a system of social rules but a practice of constructive interpretation aimed at presenting the community's coercive practices in their best moral light. Against Hart's separation of law and morality, Dworkin argues that moral reasoning is internal to legal reasoning; against Austin and Kelsen, he insists that law is irreducibly evaluative. His mature theory—law as integrity—demands that judges articulate principles that both fit and justify past legal decisions, treating the law as a coherent, principled whole.

Dworkin's corpus spans five decades: Taking Rights Seriously (1977), A Matter of Principle (1985), Law's Empire (1986), Freedom's Law (1996), Justice for Hedgehogs (2011). For FHS purposes, focus on law as integrity, the distinction between rules and principles, the rights thesis, the model of Hercules, and his semantic sting objection to positivism.

This note complements Weeks 1 and 2 on Hart and natural law. Dworkin occupies the conceptual space between them: he rejects Hart's sources thesis and conceptual separation of law and morality, yet does not ground law in metaphysical natural law. Instead, law is interpretive all the way down, combining institutional history with moral-political philosophy. Understanding Dworkin is essential for essays on adjudication, the rule of law, rights, and the nature of legal reasoning.

Dworkin succeeded Hart as Professor of Jurisprudence at Oxford in 1969 and held the chair until 1998, simultaneously teaching at NYU. His early work—particularly the 1967 article 'The Model of Rules'—launched a direct assault on *Hart's The Concept of Law*** (1961), the dominant positivist account at the time.

The intellectual context includes:

1. Hart's positivism. Law is a union of primary and secondary rules; the rule of recognition is a social fact; judges exercise discretion in hard cases; law and morality are conceptually separate.

2. American Legal Realism. Dworkin rejects realist scepticism about legal determinacy but accepts that judges do not mechanically apply rules.

3. The Warren Court era. Brown v Board of Education (1954), Griswold v Connecticut (1965), and Roe v Wade (1973) raised questions about whether judges 'make' law or 'discover' rights implicit in legal principles. Dworkin argued the latter.

4. Moral and political philosophy. Dworkin was influenced by Rawls's revival of normative political theory and by Wittgenstein's focus on interpretive practices. He sought to reunify jurisprudence with moral philosophy.

5. The Hart-Dworkin debate. This became the defining jurisprudential exchange of the late 20th century, dominating seminars and examination questions. Hart's Postscript (published 1994, after his death) responded to Dworkin's critiques, accepting 'soft positivism' but rejecting interpretivism.

Dworkin's project is not merely critical: he offers a positive theory of law as an interpretive practice, a normative theory of adjudication centred on principles and rights, and a political morality grounded in equality and dignity. His work reshaped Anglo-American legal theory and is indispensable for FHS Jurisprudence.

A. The Distinction Between Rules and Principles

In 'The Model of Rules' (later Ch 2 of Taking Rights Seriously), Dworkin argues that Hart's model of law as a system of rules is incomplete because it ignores principles. Rules apply in an all-or-nothing fashion: if a rule's conditions are satisfied, the rule applies; if not, it contributes nothing. Principles have a dimension of weight or importance: they incline a decision in one direction but do not dictate outcomes. Examples: 'No one may profit from his own wrong' (Riggs v Palmer, 1889); 'Courts should not enforce unconscionable bargains'.

Principles cannot be identified by a Hartian rule of recognition because their status as legal norms depends not on pedigree alone but on institutional support (how courts cite them), moral soundness, and coherence with other norms. This undermines the sources thesis central to positivism.

B. The Rights Thesis

Dworkin contends that individuals possess legal rights prior to judicial decision. In hard cases, judges do not exercise strong discretion (as Hart claims) but must identify the right answer by reasoning from principles embedded in the legal system. Even when statutes and precedents do not dictate an outcome, principles supply constraints. Judges are not legislators; they declare rights that already exist in 'institutional morality'.

This thesis is both descriptive (judges talk as if there are right answers) and normative (there should be right answers for the rule of law to be legitimate).

C. The Semantic Sting and Theoretical Disagreement

Foundation

1. Explain Dworkin's distinction between rules and principles. Why does he think Hart's theory of law cannot account for principles?

1. What is 'law as integrity'? How does it differ from conventionalism and pragmatism?

Standard

1. 'Dworkin's right-answer thesis is inconsistent with the observable fact that judges reasonably disagree.' Discuss.

1. Does Dworkin's interpretivist theory successfully refute Hart's rule of recognition?

Challenge

1. 'By making law depend on moral interpretation, Dworkin undermines the rule of law and licenses judicial activism.' Critically evaluate this claim with reference to both adjudication theory and democratic legitimacy.

Primary Texts

• Dworkin, R., Taking Rights Seriously (Duckworth 1977) chs 2–4 [the model of rules, principles, rights thesis]
• Dworkin, R., Law's Empire (Hart Publishing 1986) chs 1, 6–7 [semantic sting, law as integrity]
• Dworkin, R., Justice in Robes (Harvard UP 2006) chs 6–7 [response to critics; moral reading]

Critical Responses

• Hart, H.L.A., The Concept of Law (3rd edn, OUP 2012) Postscript [Hart's reply to Dworkin]
• Raz, J., 'Legal Principles and the Limits of Law' (1972) 81 Yale LJ 823 [critique of principles thesis]
• Leiter, B., 'Beyond the Hart/Dworkin Debate' (2003) 48 Am J Juris 17 [naturalism and interpretation]

Sympathetic Exposition

• Guest, S., Ronald Dworkin (3rd edn, Stanford UP 2012) [comprehensive overview]
• Hershovitz, S. (ed), Exploring Law's Empire: The Jurisprudence of Ronald Dworkin (OUP 2006) [essays by leading scholars]

Comparative and Contextual

• Finnis, J., Natural Law and Natural Rights (2nd edn, OUP 2011) ch XIII [Finnis on Dworkin]
• Waldron, J., Law and Disagreement (OUP 1999) chs 1, 11 [democratic objection to judicial review]
• Alexy, R., A Theory of Constitutional Rights (OUP 2002) [German principles theory; compare with Dworkin]