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Justifying Hercules: Ronald Dworkin and the Rule of Law

Published online by Cambridge University Press:  20 November 2018

Gregory C. Keating
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Type
Review Symposium on the Work of Ronald Dworkin
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American Bar Foundation Research Journal , Volume 12 , Issue 2-3 , Spring-Summer 1987 , pp. 525 - 535
Copyright
Copyright © American Bar Foundation, 1987 

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References

1 See, e.g., R. Dworkin, Reagan's Justice, N.Y. Rev. Books, Nov. 8, 1984, attacking the jurisprudence of the Reagan administration, and Dworkin, A Matter of Principle chs. 10, 12, & 13 (1984) (henceforth cited as “AMP”), criticizing the views of Michael Walzer, Richard Posner, and Guido Calabresi.Google Scholar

2 Dworkin, The Law of the Slave-Catchers, 3847 Times Literary Supp. (London), Dec. 5, 1975, at 1437, reviewing R. Cover, Justice Accused: Antislavery and the Judicial Process (1975): “The debate between natural law and [legal] positivism … squeezed out a third theory of law according to which … the law of a community consists not simply in the discrete statutes and rules that its officials enact but in the general principles of justice and fairness that these statutes and rules taken together presuppose by way of implicit justification.”Google Scholar

3 Rawls, Compare J., A Theory of Justice §§ 4 & 87 (1971), and Rawls, Kantian Constructivism in Moral Theory: The Dewey Lectures 1980, 77 J. Phil. 515, 519 (1980), with Dworkin, , Hard Cases, in Taking Rights Seriously ch. 4 (1977) (henceforth cited as “TRS”) and Justice and Rights in id. at ch. 6. Dworkin, refers to the “constructive” model of justification and contrasts it with the “natural” model of justification, whereas Rawls uses the expressions “constructivist” and “naturalist.” The general idea is the same.Google Scholar

4 See Dworkin, Law's Empire ch. 2 (1986) (henceforth cited as “LE”).Google Scholar

5 Compare Dworkin, What Rights Do We Have?in TRS 266, 272–73, and Liberalism in AMP 181, 190, with LE at 200–201.Google Scholar

6 See esp. TRS chs. 2 & 4.Google Scholar

7 “The present book, particularly in Chapter 4, emphasizes the interpretive rather than the phenomenological defects of positivism, but these are, at bottom, the same failures.” LE at viii.Google Scholar

8 Dworkin, TRS at 86–87 (“Hard Cases”). He makes the same point in LE at 130–31, in the Opening salvo of his attack on conventionalism.Google Scholar

9 As this suggests, Dworkin's interpretive conception of legal theory leads to an oblique response to pragmatism's head-on attack on consistency in principle as a mere fetish. Pragmatism, Dworkin argues: an neither fit nor justify the practice that we do, in fact, have.Google Scholar

10 LEat 185: This connection between integrity and the rhetoric of equal protection is revealing. We insist on integrity because we believe that internal compromises would deny what is often called “equality before the law” and sometimes “formal equality.” It has become fashionable to say that this kind of equality is unimportant because it offers little protection against tyranny. This denigration assumes, however, that formal equality is only a matter of enforcing the rules, whatever they are, that have been laid down in legislation, in the spirit of conventionalism. The equal protection cases show how important formal equality becomes when it is understood to require integrity as well as bare logical consistency, when it demands fidelity not just to rules but to the theories of fairness and justice that these rules presuppose by way of justification.Google Scholar

11 Rawls, A Theory of Justice 235 (1971). Though Dworkin suggests that integrity is a widely overlooked political ideal (LE at 167), the link between law and formal justice that “integrity” captures is widely recognized. Lon Fuller's “internal morality” of law and H. L. A. Hart's “precepts of legality” are both versions of the same ideal. See L. Fuller, The Morality of Law ch. 2 (rev. ed. 1969), and H. L. A. Hart, The Concept of Law 156 ff & 202 ff. (1961).Google Scholar

12 Dworkin, TRS at 105 (“Hard Cases”).Google Scholar

13 For evidence that the idea has always been central to Dworkin's work see esp. TRS chs. 2, 4, & 6.Google Scholar

14 See TRS chs. 2, 4, & 13 and AMP chs. 5–7.Google Scholar

15 AMP at 143 (“Is There Really No Right Answer in Hard Cases?”): The dimension of fit supposes that one political theory is pro tanto a better justification than another if, roughly speaking, someone who held that theory would, in its service, enact more of what is settled than would someone who held the other. Two different theories may well provide equally good justifications, along that dimension, in immature legal systems with few settled rules, or in legal systems treating only a limited range of the conduct of their constituents. But in a modern, developed, and complex system, the antecedent likelihood of that kind of tie is very small. The tie result is possible in any system, but it will be so rare as to be exotic in these. (Emphasis in orginal). Compare TRS at 106–7 & 283–87 (esp. at 286).Google Scholar

16 LE at 266–75, esp. at 213–14 [the claim] that any competent contemporary justification of these different parts [of the law] would necessarily display fundamental contradictions of principle, that Hercules must fail in imposing a coherent structure on law's empire as a whole … is powerful and germane, however, only if it begins where Hercules begins: it must claim to have looked for a less skeptical interpretation and failed. Nothing is easier or more pointless than demonstrating that a flawed and contradictory account fits as well as a smoother and more attractive one. The internal skeptic must show that the flawed and contradictory account is the only one available.Google Scholar

17 The other question, of course, is whether Dworkin's theory “fits” our practice. Because I believe that Dworkin does succeed in giving an account of legal decision more faithful than positivism or realism to legal decision's delicate balance between formal and moral reasons, I shall not pursue the difficulties of that account in terms of its “fit” here.Google Scholar

18 More exactly, he offers an account of obligation which dissolves the problem. Dworkin simply states a set of conditions he takes to be sufficient to generate political obligation. The four conditions he sets out are one interpretation of the basic principles presupposed by democratic political institutions. Dworkin assumes that, as heirs of Western democratic traditions, we all accept such ideas.Google Scholar

19 See note 14 above.Google Scholar

20 See P. Soper, A Theory of Law, esp. at 52–55, 103–6, 112–17 (19—). Soper writes: “Dworkin's descriptive and normative claims about the judicial process [are] understandable only when seen as an aspect of a conceptual theory of law” (at 114).Google Scholar

21 “The law of the community on this account is the scheme of standards that … license coercion because they flow from past decisions of the right sort … law insists that force not be used or withheld, no matter how beneficial or noble [the ends pursued might be], except as licensed or required by individual rights and responsibilities flowing from past political decisions about when collective force is justified.” LE at 93 (I have rearranged the order of the sentences).Google Scholar