Professional Documents
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O rd e r N u m b e r 8904261
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A STUDY
by
Milwaukee, Wisconsin
July, 1988
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Kevin E. Sullivan
ABSTRACT
LAW AS AN INTERPRETIVE CONCEPT:
A STUDY OF THE LEGAL
PHILOSOPHY OF RONALD DWORKIN
superior
alternative to the traditional views in legal theory natural law and legal positivism.
Dworkin conceives of law as an interpretive concept
designed to construct an internal, participants' view of a
community's legal practice. This constructive interpretation
is meant to show that each community's legal practice
embodies principles and values drawn from the community's
basic political morality. Moreover, this interpretation both
explains the existing elements of the legal record (e.g.,
statutes, precedents,regulations, etc.), and justifies these
elements by connecting them with a defensible background
political morality.
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Kevin E. Sullivan
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Preface
insti
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(2)
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necessary.4
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view. Hence, the bulk of this study concerns itself with ana
lyzing his views in that book. Law's Empire is intended as
both a deepening and focusing of Dworkin's earlier work and
as an attempt at connecting his jurisprudence with broader
philosophical issues. Reference to these earlier works es
pecially the book-length collections Taking Rights Seriously
and A Matter of Principle will serve primarily to clarify
and amplify the content of Law's Empire.
Why does Dworkin's theory of law merit such close atten
tion and study? Dworkin's views are highly controversial and
have elicited a torrent of critical comment, most of it seri
ous but largely unsympathetic to his substantive conclusions.
The justification for this study (and the working assumption
throughout)
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in an institu
judges must de
is the
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viii
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since it requires as
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TABLE OF CONTENTS
Chapter
I.
II.
III.
IV.
V.
204
N O T E S ....................................................... 211
BIBLIOGRAPHY ............................................... 259
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Chapter One:
The Form and Function of A Legal Theory
r>
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of the jurispru
1. Basic Questions
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theories of law will take and the specific aim they will be
designed to achieve. Namely, a comprehensive theory of law
must provide specific content to such concepts as validity,
legal justification and reasoning and the meaning of 'law.1
And by tracing the mutual relations among these concepts a
theory thereby presents an overall picture of what law is.
For expository purposes this view outlined by Sartorius
will be considered the "standard" model of a legal theory. By
standard here it is meant merely that this manner of modeling
legal theories is a fairly common practice among legal
philosophers. In fact there are good reasons for endorsing
this theoretical model, not the least being its usefulness as
an analytical tool. The content of virtually any theory of
law can be brought out by applying this informal "test."10 It
succeeds as well in exposing a theory's characteristic pre
occupations and limitations.
Consider,
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is possible independent of
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"what is
"content-independent" analysis of
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10
(as op
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11
and his
in legal philosophy
of the modelframed in
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12
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13
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14
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15
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justifica
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functions
a distinction)
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18
[B]
[C]
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19
general theory.30
Even more crucial is the fact that fairness is also a
moral concept. Indeed, as an evaluative notion even of law
there seems no clear separation between the moral and the
specifically legal content of the concept of fairness. Hence,
in a very basic sense, the content of a general legal
theory's conception of fairness will be derived from a con
structive interpretation of a specific moral concept of fair
ness. Fairness will be embodied in various parts of the legal
theory in various ways,but overall will reflect a specific
moral view of the content of fairness. Again, the connection
of legal theory with an underlying moral theory is
inescapable.
One final point to consider in this connection, even the
largely conceptual question of what constitutes applying an
established adjudicative standard or how such standards are
to be identified in the first place belie connections with
underlying moral issues.
For example, if a judge's decision in a given case
clearly contradicts a line of past judicial precedent that is
unmistakably analogous to the instant case, the decision
could be criticized (evaluatively) as unfair. But this judg
ment ultimately turns upon specific conceptual questions in
the theory of legal reasoning; namely, upon an analysis of
the constraining power of precedent, upon specific interpre
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20
(e.g.,
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21
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22
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Chapter Two:
The Model of Rules
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24
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ophy.
as
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is its
(legislative or judicial)
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27
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28
(1)
and
"functions" or other
wise;
(4)
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29
'command,1 cannot ac
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30
"applying" such
rules to relevant particular cases. Extra-legal resources e.g., political values, moral standards or the aims of social
policy - are neither desirable or necessary for generating
purely legal outcomes.
This rather rigid portrayal of law as a gapless logical
system, capable of operating by mechanical deduction, is
often associated with Kelsen's version of positivism.45 Cer
tainly this view emphasizing law's systematic character is
consistent with positivism's general theme of preserving the
separateness of law and other systems of rules and practices,
most notably morality. But positivism is in no way logically
committed to either this view of the internal structure of
legal systems or to the accompanying "mechanical" depiction
of adjudication.
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31
The
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"the
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respectively,
(2) the separation thesis,
(3) the distinction between the conceptual analysis of
law and other critical, evaluative or descriptive
studies of law, and
(5) the non-cognitivist thesis in ethics.
At first, there seems little to suggest any obvious log
ical connections among these claims. And yet, by clarifying
these claims, two facts become clear:
such
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34
(ex.,
(ex., the
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In view of all this, the claim that law and morality are
"separate" can only mean that the two are conceptually dis
tinct - i.e., law and morality, though their content may
often coincide, are not logically identical or logically
interchangable. This claim can be restated in various ways
each of which expresses a slightly different shade of mean
ing. Thus, the validity
of the laws
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(e.g.,
'good,'obligation') in
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(2)
(from without).
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2. A Philosophical Preliminary
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42
"what is law?"
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(illocutionary
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towhich it is
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a.
b.
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47
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(i.e., "central")
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(if not
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legislatures
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"what is a
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inconsis
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Moreover,
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Chapter 3:
The Plane Of Principle
(2)
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[B]
[C]
[D]
[E]
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"the manufacturer
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is
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is norm-creating,
principle
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b. Dworkin's Rejoinder
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disputed.
An example is ready at hand. In Henningsen. the court
imported into its deliberations certain considerations re
garding the economic fairness of a contract between a rela
tively economically weak consumer on the one hand and a pow
erful automobile corporation on the other. These are not, of
course, irrelevant factors in the case of business contracts.
But by making them decisive in this case the court also ren
dered a distinct judgment on the economic aims that ought to
be served by the rules governing contracts. And the very fact
that many corporations affected by this ruling would disagree
with the judge's judgments
considerations)
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80
the rigid test for the identity and validity of law provided
by rules of recognition in positivist legal theory, moral
standards, political values and similar considerations cannot
themselves be part of the law. They are, rather, standards by
which judges, exercising their discretion, may extend law in
directions they see as justified and beneficial morally,
politically and socially.
But Dworkin's objections to positivism do not rest on
this line of criticism alone. His strongest arguments center
upon the recognition that there is more at stake in the issue
of judicial discretion than simply the extent of the judge's
interpretive latitude. Dworkin's stronger criticisms of posi
tivism speak to the unsettling political issue that lies at
the heart of the whole question of discretion. If the stan
dard judicial function is the application of existing rules
of law in settling disputes, what entitles judges to venture
outside the law to find extra-legal principles and standards
for justifying its decisions in hard cases? This is an issue
in political theory because it concerns the proper role and
power of the judiciary in a community's general arrangement
of political institutions and the legitimacy of judicial
acts.
Moreover, it is an important issue in legal theory
because it directly involves the conceptual means by which
theories of law classify the "data"
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[it] ad
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(b)
is already
(b) one of
since
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law is fundamen
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since it
ignores the more common easy case and takes the hard case
exception for the rule.117
The other solution is to locate the root difficulty in
the positivist conception of law as rule and the accompanying
analysis of validity in terms of authoritative origin. What
is required is a more complex basic conception of law that
includes,
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should be prevented.
(a) is specifically
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in
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appealed in
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for an
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(ii)
(iii)
(i)
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principles can be
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justifications
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(b)
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in a certain direction.143
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108
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Rights,
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blind treatment,
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(among other
to ask another
one, how would Hercules decide the issue in Brown? The far
sighted Hercules would reach the correct decision, i.e., the
outcome that best preserved the overall coherence of the
entire legal system as a whole, by grounding his interpre
tation in the general principles comprising the soundest
justificatory theory of the law as a whole.
The aim in Brown or in any other case
is acomprehensive
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118
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there must be some ultimate ground for thinking that the law
as a whole is coherent. That is, there must be some principle
or set of principles of political morality which both set
forth the underlying, general aims of law and help to illumi
nate existing law by showing it to be a practical attempt to
realize those aims.
The concept of the soundest theory of the settled law
embodies Dworkin's faith that law, from the perspective of
political morality, is a justifiable and, thus, coherent
enterprise. Further, given the possibility of a coherent,
comprehensive understanding of those aims that the law ought
to pursue insofar as it is justifiable,
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(and was, in
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Chapter Four:
Law As An Interpretive Concept
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(or legal
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legal data. The term applies not only to explicit legal rules
but also to implicit legal principles that are embedded in
the law and reflect the background moral and political justi
fication for the law.
Judges discover legal principles by interpreting the
explicit legal data. This requires them to view legal prac
tice as a whole in terms of the background values law seeks
to incorporate and promote. The principles revealed by this
interpretive process provide grounds for specific decisions
in particular cases. Moreover, since such principles reflect
the continuity between legal practice and its background jus
tification, they promote adjudicative decisions that preserve
the consistency of law with political morality.
But why is Dworkin's interpretive model of adjudication
preferable to the quasi-legislative model proposed by legal
positivism?162 Because, argues Dworkin, the interpretive model
better illuminates the nature and function of legal argument
and decisionmaking in general. Even in clear cut, easy cases,
adjudicative outcomes represent interpretive decisions about
the concrete, practical requirements that are demanded by the
abstract background principles that underlie and justify the
law. In hard cases these mechanisms of interpretation and
justification are simply closer to the surface and thus more
obvious.
This last claim and indeed Dworkin's whole theory rests
on a deeper claim: legal argument and decisionmaking are in
terpretive because law itself is interpretive. In other
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In light of
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are theories about what law in general is, since both propose
distinct grounds for identifying what the law is on any given
issue.167
For positivism, theoretical disagreement is simply not
possible, since
unless lawyers and judges share factual cri
teria about the grounds of law there can be
no significant debate about what the law
is. 168
for identifying
an interpre
it embodies
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law is a collective
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it is
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[B]
[C]
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for law as integrity are these: Why does law require that
public coercion be used only in ways permitted by the scheme
of rights and responsibilities sponsored by past political
decisions? And to what extent should current and future legal
practice continue to adhere to this scheme? The answers to
these questions must both justify and explain existing legal
practice.
Law as integrity proposes two related answers to these
questions. One is based on the deep moral background of legal
practice, the other on the internal standards for guiding any
activity that has a unifying point or purpose.
First, recall that law functions at least partly to give
the political morality of a community a practical, institu
tional form. Legal practice is that form, so it will
inevitably reflect the political morality of its community.
But it does so in a highly abstract way, so only the most
general values of political morality are actually be embodied
in the scheme of legal practice.
Paraphrasing Hilary Putnam, we might say there is a
"moral image of the law" that interpretation tries to elicit
in order to clarify law's background moral justification.192
Law as integrity proposes that the moral ideal of equality193
is the central value embodied in the law. Because law is an
institutionalized means of establishing equal concern and
respect for all members of the community, it finds its justi
fication in the commitment of the community to equality as a
moral ideal.
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4. Two Applications
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even though her injury was sustained not at the scene of the
accident but at the hospital some time later. How would a
judge adjudicate this case on the law as integrity view? For
Dworkin:
law as integrity asks a judge... to think of
himself as an author in the chain of [law]...
He knows that other judges have decided cases
that, although not exactly like his case,
deal with related problems; he must think of
their decisions as part of a long story he
must interpret and then continue, according
to his own judgment... [His decision] must be
drawn from an interpretation that both fits
and justifies what has gone be fore.200
The judge's interpretation must, first, explain how the line
of precedents cited in McLoughlin has evolved and what under
lying principle regarding liability for emotional injury they
embody. Second, her interpretation must show how the line of
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(2)
(3)
(4)
(5)
(6)
compensation
physical, that
careless con
or unforesee
would result
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(1) is obvi
(2)
(2) does
fit the line of precedent, which clearly has not granted com
pensation for emotional injuries sustained away from the
accident scene. But the distinction
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153
with accidents. So (3) does not fit the past decisions very
w ell.
Even more important is the fact that (3) appeals to social
policy grounds for determining whether a legal right to com
pensation should be recognized in cases of emotional injury.
On the law as integrity model, the judge assumes as part of
her interpretive stance that law embodies a coherent set of
background principles - e.g.,
justice, equality,
fairness -
law as integrity
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(4),
(5) and
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fair
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consistency,
justifying point.
In a broader sense,
Integrity demands that the public standards
of the community be both made and seen, so
far as this is possible, to express a single
coherent scheme... An institution [such as
law] that accepts this ideal will sometimes,
for that reason, depart from a narrow line of
precedents in search of fidelity to princi
ples conceived as more fundamental to the
scheme as a whole.206
The interpretive requirements of integrity - moral and
internal coherence - may require that judges recognize some
past decisions as ill-founded and erroneous and take steps to
repair them. Also,
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"political moral
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Chapter Five:
A Critical Appraisal
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for example -
justifying principles.
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in Dworkin's
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it
is on the concept
since a community's
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166
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(in the
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first place. But the two tasks can be, and are, carried out
independently.
But such a theory would be inadequate for theorizing
about legal practice. In a legal practice, content and justi
fication commingle. Understanding a legal practice means
understanding the point or purpose of that practice as a
whole. And the point of a legal practice is internal to the
practice in the following way: it is the abstract scheme of
values and principles the community strives to express in its
system of laws. So the point of legal practice is the refer
ence point for determining what counts as legal in a given
community. Only those rules, principles and institutions that
incorporate and promote the internal point of law are granted
recognition by a community's legal practice.
Dworkin's idea, in short, is that the internal,
justify
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... "is
ritualistic forms of
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sions) are derived from both English and American legal prac
tices. Moreover, English and American legal practice reflect,
both in their background moralities and in the actual content
of their law,clear commitments to principles of equality and
equal treatment.
These considerations illustrate the most serious limita
tion of Dworkin's interpretive approach to law. Because in
terpretation requires assuming a value-laden standpoint
within a given community's legal system, the most it can ever
produce is a theory of a particular legal practice, not a
theory of legal practice as such. The sort of legal theory
Dworkin champions can be used by participants for articulat
ing the meaning of their own legal practice. But it would be
applicable to the legal practices of other communities only
if those communities shared the same scheme of background
values and legal institutions.
It is easy to imagine systems of legal practice in which
the principal features of Dworkin's conception of law are not
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(though
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As chapter 3 indicated,
interpretation in general is
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conflicting elements.
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any given
a coherent scheme of
the background
principles of this
for example,
(the Consti
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182
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For
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of
franchised dealer of
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"... a general
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was known
decisions
requiring
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194
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designed to pursue, the systematic separation of the races apartheid. Equally evident would be the systematic
inegalitarianism apartheid creates throughout South African
society.
Racial separation is undeniably an underlying purpose in
South African legal practice. But does racial separation
truly justify South African law? In other words, can it pro
vide morally compelling reasons for licensing or constraining
public coercion and for recognizing individual rights and
responsibilities?252
One reply is that plainly it cannot. Since mandatory
racial segregation is itself morally indefensible it can pro
vide no compelling reasons for exerting public coercion to
secure it. In the absence of such reasons, the legal practice
that pursues racial segregation and the rights and responsi
bilities it recognizes is fundamentally defective. It is
defective in the sense that, for Dworkin, South African legal
practice can yield "... no interpretation that can have, in
any acceptable political morality, any justifying power at
all.253
Such a legal practice would be, in Dworkin's view, law
in the "preinterpretive" sense only. It is a less sophisti
cated form of legal practices like that of the United States
that are fully justified by a coherent and detailed back
ground morality.254 Dworkin's claim here rests on his concep
tion of what constitutes the justifying power of an interpre
tation. Consider American legal practice again. Dworkin has
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199
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(2)
(3)
it means that
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This claim does not depend on the justifying role that equal
ity plays in American legal practice. It makes the broader
claim that equality is the best justifying ground for legal
practice in general. Hence, it assumes what was identified
earlier as perspective
(3).
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204
C o n c lu d in g
R e m a rk s
This study has had two purposes, one expository and the
other critical. A brief review of these will help in summa
rizing our conclusions.
superior alterna
tive to the traditional perspectives in legal philosophy natural law and legal positivism.
Dworkin conceives of law as interpretation aimed at pre
serving the overall integrity of legal practice. Underlying
this conception is Dworkin's claim that a community's legal
practice reflects, in its scheme of rules, principles and
institutions, the basic convictions of the community regard
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205
ing the most desirable and just ways of organizing and regu
lating its political life. These convictions of political
morality, embracing fundamental values like equality and jus
tice, form the basis for the community's legal practice. So
the specific branches of the law (e.g., contracts, torts,
criminal law) can be considered coherent schemes of rules and
principles to the extent that they consistently embody these
underlying values of political morality. Also, the specific
branches of law taken together form a coherent scheme of
legal practice. Again, this is because they embody
(albeit in
for example,
insists that
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judges
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since on
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210
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NOTF.S
1.
3.
1984), p. 186.
4.
(see
6.
1985), p. 148.
(New York:
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212
7.
Sartorius,
(1954).
Ibid., p. 134.
Although, as Dworkin is at pains to show, this purport
edly neutral test in fact is heavily biased toward for
mal questions like the systemic character of law and
semantic issues such as the meaning of 'law' ques
tions and issues which are characteristically at the
core of legal positivism. Perhaps inadvertently reveal
ing this bias, Sartorius employs Austin's legal theory
as an illustration of his theoretical model. See Sarto
rius, op. cit., pp. 134-135.
11.
Thomas Aquinas,
(articles)
90,
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213
(pp. 611-613 in
90,
(pp.
14.
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214
(articles)
5,7.
15.
16.
17.
18.
Dworkin,
Ethics 47,
(October, 1964).
19.
(1977) .
20.
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215
22.
23.
24.
since it is an expli
description of the
of its
27.
28.
Ibid., p. v i i i .
29.
30.
vii.
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216
- a. .
31.
32.
33.
34.
"The
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217
Path of the Law, "Harvard Law Review 10 (1897): 457478, and The Common Law, ed. by Mark DeWolfe (Boston:
Little, Brown, 1963); Roscoe Pound, An Introduction to
the Philosophy of Law (New Haven: Yale University
Press, 1922) .
35.
37.
38.
39.
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218
Hart,
42.
43.
44.
45.
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219
47.
as the "possibility of
vagueness":
although we can make a decision in any given
kind of case... there will always be an
indefinite number of other conceivable cases
with respect to which [a] concept is still
not delimited
Alston, Philosophy of Language
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220
49.
50.
51.
inCohen,
53.
Ibid.. p. 181.
54.
(a) "due
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221
1954) p. xv.
57.
Lyons,
58.
59.
60.
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222
62.
63.
64.
65.
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223
66.
Philosophical Papers
69.
Hart,
(London:
is Austin's formulation;
(b) is
71.
Ibid., p. 133.
72.
73.
74.
p. 15.
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224
The Concept of
Law, p. 56.
76.
Ibid.. p. 84.
77.
78.
Hart describes
1775), p. 15
81.
83.
Ibid.. p. 123.
84.
122.
124.
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225
85.
86.
87.
89.
90.
91.
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226
92.
93.
94.
95.
96.
Ibid.. p. 24.
97.
Ibid.. p. 24.
98.
Rights Seriously,
as anexample
p. 24.
ofcontracts
(1983).
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227
100.
plaintiff,
(1972),
102.
103.
cit., p. 125.
104.
cit., p. 106.
105.
courts in
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228
107.
108.
109.
110 .
112 .
Ibid., p. 82.
113.
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229
115.
Taking Rights
Seriously, p. 84.
116.
Taking Rights
Seriously, p. 29.
117.
of
de
119.
120.
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230
See Gadamer,
123.
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231
125.
126.
127.
128.
129.
130.
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232
132.
Dworkin,
(Cambridge: Univer
136.
137.
138.
MacCormick,
139.
Ibid., p. 233.
140.
141.
Ibid.. p. 157
142.
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233
143.
144.
145.
Joel Feinberg,
Social Philosophy
Prentice Hall,
1973), p. 58.
See Ibid.. pp. 55-67; also, Lyons, Ethics and the Rule
of Law, op. cit., p. 124: and, S.I. Benn and R.S. Pe
ters, The Principles of Political Thought
Macmillan,
146.
(New York:
147.
148.
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234
149.
150.
151.
152.
153.
154.
155.
156.
157.
Ibid., p. 84.
158.
159.
MacCormick,
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235
160.
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from
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237
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238
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239
factually oriented
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240
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241
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242
1977). There is an important element of culture-boundedness in Dworkin's notion of legal interpretation and,
particularly,
principles of law. See Law's Empire, op. cit., pp. 206208, 413.
179. This is Dworkin's procedure for explaining interpretation
in Law's Empire. The account given here follows Dworkin's
account closely. See Law's Empire, op. cit.., pp. 4 6-4 9
and pp. 68-73.
180. This is the dimension of fit Dworkin noted in his discus
sion of the soundest theory of the settled law. The
underlying principles of courtesy (as of law) must
actually fit with and explain all or most of the practice
as it really is. The dimension of morality refers to the
demand that the underlying principles portray the prac
tice as consistent with the background morality that it
is intended to embody and express. See A Matter of
Principle, op. cit., p. 143.
181. Two points should be mentioned here. First, the model of
interpretation shows how the two levels of analysis,
concept and conception, mutually influence each other.
The concept of courtesy, respect, provides a unifying
point for the whole practice. Respect must be the
unifying point because respect is simply what the whole
practice and all its rules taken together seem to
express. So the concrete rules given in the conception of
courtesy provide support for saying courtesy is a matter
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243
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244
189. Law's
190. Law's
191. Law's
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245
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possible. See Law's Empire, op. cit., pp. 96, 193, 219.
See also A Matter of Principle, op. cit., pp. 159-161.
199. See chapter 3, section 2 of this study. Dworkin uses
op. cit.,
p.248.
op. cit.,
p.249.
op. cit.,
p.219.
cases already
National Cash
the
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?48
.. , , , . <
...
209. In the three works that comprise the focus of this study,
Taking Rights Seriously. A Matter of Principle and Law's
Empire. Dworkin offers no formal definition of "political
morality." What is presented here is an interpretation of
the term based on careful attention to the way Dworkin
has used it in his arguments.
210. Law's Empire, op. cit., p. 97.
211. The legal system is, however, committed to those princi
ples of political morality implied as justifications for
existing law. These principles, unlike the purely per
sonal convictions that comprise popular morality, have
become institutionalized through the successive decisions
that have been taken in legal practice. Dworkin's notion
of political morality is especially apt for a legal
practice like that of the United States, in which the
basic principles of political morality are given in
summary form in the Constitution.
212. The reader will recall the analysis of the decision in
Riggs v. Palmer in chapter 3. In that case, the need to
interpret the existing legal rules in terms of more gen
eral background principles was brought about by two fac
tors. First, the case was novel in that its facts were
unanticipated- Second, the outcome dictated by a noninterpretive, mechanical application of the relevant
rules seemed offensive to the law's clear underlying
purposes.
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249
it is ex
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250
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251
for
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253
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254
(London: Routledge
"Under
i Talcott
88 .
229. See Weber, The Theory of Social and Economic
Organization, op. cit., p. 88. For Dworkin, the theorist
of law must view legal practice in essentially the same
way a participant does. The basic difference is that the
theorist must view it in its entirety, from the narrowest
legal rule to the broadest, most abstract principles of
political morality. In this sense, the theorist is Her
cules.
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255
Ibid.
Co..350F. 2d
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(1957). Besides
(1964).
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257
(1984) .
(e.g.,
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Bibliography.
Primary Sources
Secondary Sources
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260
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1976.
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262
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263
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