Introduction to Law Series
Ronald Dworkin’s Interpretative Theory of Law
The question “What is law?” lies at the core of jurisprudence, prompting exploration into the nature, purpose, and operation of legal systems. In this third installment of our Introduction to Law Series, we examine the groundbreaking work of Ronald Dworkin (1931–2013), one of the most influential legal philosophers of the 20th century. Unlike earlier seminars, which considered thinkers like Jeremy Bentham’s utilitarianism or H.L.A. Hart’s legal positivism, this post focuses on Dworkin’s distinctive interpretative theory, articulated most comprehensively in Law’s Empire (1986). Rooted in the Anglo-American jurisprudential tradition, Dworkin challenges positivism’s separation of law and morality, offering a vision of law as a practice of constructive interpretation that integrates moral principles with social facts. His approach contrasts with Continental thinkers like Hans Kelsen, whose normative theories emphasize systemic coherence, and provides a fresh perspective on the role of judges in hard cases. This introduction explores Dworkin’s biography, his critique of legal positivism, his theory of constructive interpretation, and his concept of law as integrity, illuminating how his ideas reshape our understanding of law as a morally engaged, coherent practice. By delving into Dworkin’s arguments, their strengths, and their critiques, we uncover a dynamic framework for understanding legal systems and their moral foundations.
Dworkin’s Background and Intellectual Context
Ronald Dworkin, an American legal and political philosopher, is celebrated for his profound contributions to jurisprudence and political theory. Born in 1931, Dworkin studied at Harvard University and Oxford University, where he was a student of H.L.A. Hart, the leading positivist whose work Dworkin would later critique. His legal career included a clerkship with Judge Learned Hand, a revered U.S. federal judge, and a period practicing tax law at Cravath, Swaine & Moore, a prestigious New York firm. These experiences grounded Dworkin in the practical realities of legal practice, shaping his focus on judicial reasoning, a hallmark of the Anglo-American tradition. In 1969, he succeeded Hart as University Professor of Jurisprudence at Oxford, later holding positions at Yale, New York University, and University College London as Quain Professor of Jurisprudence. His transatlantic career reflects the Anglo-American emphasis on blending philosophical inquiry with practical legal concerns, distinct from the Continental tradition’s focus on abstract normative systems, as seen in Kelsen’s Pure Theory of Law.
Dworkin’s extensive writings include Law’s Empire, his only full-length jurisprudential work, and essay collections such as Taking Rights Seriously (1977), A Matter of Principle (1985), and Freedom’s Law (1996). His political philosophy, notably his theory of equality in Sovereign Virtue (2000), complements his legal theory, underscoring his interdisciplinary influence. Unlike Hart, whose writing is clear and generous to rival views, Dworkin’s style is abstract and rhetorical, often using the agonistic method—attacking opposing theories to highlight his own. Critics, including Hart, argue that Dworkin sometimes caricatures rival theories, distorting them to emphasize differences, which can obscure genuine points of contention. Additionally, his legal background may lead him to make strategic arguments, prioritizing persuasion over philosophical truth, a tactic more suited to advocacy than academic discourse. Despite these critiques, Dworkin’s work remains a cornerstone of Anglo-American jurisprudence, redefining debates about law’s nature and its moral dimensions.
Key Distinctions in Dworkin’s Framework
Dworkin’s theory rests on several conceptual distinctions that clarify his approach. First, he distinguishes between a concept and a conception, drawing on John Rawls’ A Theory of Justice. A concept is a general description of a practice’s objective—for example, law as a system ensuring justified state coercion—while a conception is a specific interpretation, such as conventionalism or law as integrity. This distinction allows Dworkin to argue that theorists may agree on law’s abstract purpose but disagree on its best interpretation, reflecting the Anglo-American tradition’s focus on interpretive flexibility.
Second, Dworkin differentiates between fairness, justice, and integrity. Fairness governs political participation, ensuring equitable access to political processes. Justice regulates the distribution of social benefits and burdens, aiming for equitable outcomes. Integrity, central to Dworkin’s theory, ensures principled consistency across legal decisions, lending moral authority to state actions. This emphasis on integrity contrasts with Continental theories, like Kelsen’s, which prioritize formal normative hierarchies over moral coherence.
Finally, Dworkin distinguishes between the grounds of law (rules that determine when legal propositions are true) and the force of law (the moral weight of those propositions in justifying coercion). He criticizes Hart for focusing solely on the grounds of law, identified through social sources like legislation and precedents, while ignoring the force of law, which assesses whether a law’s moral weight justifies its coercive application. This critique underscores the Anglo-American tradition’s engagement with the moral dimensions of judicial reasoning, particularly in complex cases.
Dworkin’s Critique of Legal Positivism
Dworkin’s theory is a direct challenge to legal positivism, particularly Hart’s concept of the rule of recognition, which identifies valid laws based on social sources without reference to morality. Dworkin argues that positivism fails to account for fundamental disagreements in “hard cases,” where judges dispute the criteria for legal validity itself. He illustrates this with two landmark cases: Riggs v. Palmer (1889) and TVA v. Hill (1978).
In Riggs v. Palmer, a New York court faced the question of whether Elmer Palmer, who murdered his grandfather to secure his inheritance, could claim under the will. The New York statute of wills was silent on whether a murderer could inherit, leading to a dispute. The majority applied an equitable principle—“no one should benefit from their own wrongdoing”—to deny Elmer’s claim, while the dissent insisted that courts must apply the statute as written, leaving reforms to the legislature. Dworkin sees this as a “pivotal” disagreement about the criteria for legal validity, not a borderline dispute over vague rules.
In TVA v. Hill, conservationists sought to halt the Tennessee Valley Authority’s Tellico Dam, which threatened the snail darter, an endangered species. The Endangered Species Act required protecting endangered species, but the dam was nearly complete, and halting it would waste $100 million. The Supreme Court’s majority upheld the Act’s plain text, prioritizing environmental protection, while the dissent urged a pragmatic interpretation to avoid economic waste. Dworkin argues that these disputes reflect fundamental disagreements about the rule of recognition’s criteria, with judges applying different conceptions of law’s sources—statutory text versus broader principles.
Dworkin introduces the “semantic sting” to critique positivism’s reliance on a shared rule of recognition. If judges use fundamentally different criteria for what counts as law, they are “talking past one another,” rendering debate pointless. For example, in Riggs, the majority prioritized moral principles, while the dissent emphasized statutory text, suggesting different definitions of “law.” Dworkin contends that positivism cannot accommodate these theoretical disputes, as it recognizes only empirical (factual), normative (what law ought to be), or borderline (vague rule application) disagreements. Hart counters that positivism can account for such disputes, as the rule of recognition may incorporate controversial moral criteria, and most cases are “easy,” requiring no such debate. This exchange highlights the Anglo-American tradition’s focus on judicial practice, contrasting with Continental theories that prioritize systemic unity.
Dworkin’s Theory of Constructive Interpretation
Dworkin proposes that law is a practice of constructive interpretation, akin to interpreting a social practice or work of art, rather than a conversational or scientific endeavor. Conversational interpretation seeks the speaker’s intent, while scientific interpretation explains data. Constructive interpretation imposes purpose on a practice to make it the best it can be, constrained by its history. Dworkin uses the metaphor of a “chain novel,” where each judge, like an author, adds a chapter that fits with prior chapters while making the story the best possible. This process involves two criteria: fit (consistency with existing legal materials) and moral attractiveness (alignment with principles of justice, fairness, and due process). Unlike Hart’s positivism, Dworkin argues that every legal proposition involves a moral judgment, as judges select the interpretation that best justifies the law’s coercive force.
Constructive interpretation unfolds in three stages: the pre-interpretative stage (identifying the practice), the interpretative stage (determining its purpose), and the post-interpretative stage (adjusting the practice to fit that purpose). These stages, though analytically distinct, often occur simultaneously. Dworkin introduces this framework to address morally iniquitous laws, arguing that such laws are law only in a pre-interpretative sense, avoiding the positivist claim that law’s validity is independent of morality. Hart contends that this concession supports positivism, as it acknowledges that law can be identified without moral reference at the pre-interpretative stage. This debate underscores the Anglo-American tradition’s emphasis on moral reasoning in adjudication, contrasting with Continental theories that separate law from morality.
Dworkin’s Concept of Law and Competing Conceptions
Dworkin defines law as a system that ensures state coercion is justified only by “individual rights and responsibilities flowing from past political decisions” (Law’s Empire, p. 93). This concept, echoing the command model but emphasizing moral justification, assumes a necessary connection between law and morality, challenging positivism’s core tenet. Dworkin tests three conceptions of this concept: conventionalism, pragmatism, and law as integrity.
Conventionalism, a distorted version of positivism, holds that judges apply law based on community conventions, resorting to extralegal standards in hard cases. Dworkin argues it fails fit, as judges prioritize principled consistency, and moral attractiveness, due to its rigidity in easy cases and unprincipled discretion in hard cases. He claims it is undemocratic and unjust, applying ex post facto law. Hart counters that positivism allows flexible rules of recognition and constrained discretion, and ex post facto concerns are irrelevant in hard cases where expectations are indeterminate.
Pragmatism, a caricature of legal realism, denies the intrinsic importance of past decisions, focusing on future-oriented goals. Dworkin argues it fails fit, as judges respect past decisions, and moral attractiveness, permitting unprincipled “checkerboard” solutions that violate integrity. Stanley Fish argues that pragmatism, as defined, is impossible, as all reasoning is historically grounded, rendering Dworkin’s critique trivial.
Law as integrity, Dworkin’s preferred conception, views law as interpretative judgments balancing consistency with moral principles. Judges act as if writing a chain novel, ensuring coherence with the community’s legal principles. Integrity promotes equality and legitimacy, aligning with the Anglo-American tradition’s focus on moral coherence, unlike Continental theories that prioritize formal validity.
Critiques and Reflections
Dworkin’s theory faces challenges. His insistence on constructive interpretation risks infinite regress, as determining “best” requires further interpretation. The interdependence of fit and moral attractiveness lacks clear guidance, and his rejection of alternative interpretive purposes may be restrictive. Fish argues that Dworkin’s critique of conventionalism and pragmatism is trivial, as no one can adopt these approaches, and law as integrity is what judges naturally do. Fish suggests Dworkin’s true contribution lies in his political theory of equality, not his legal theory.
Dworkin’s position blurs positivism and natural law. He is positivist in viewing law as ascertainable through immanent principles but naturalist in insisting that law’s content is inseparable from moral justification. This hybrid approach reflects the Anglo-American tradition’s engagement with moral reasoning, contrasting with Continental theories like Kelsen’s. Critiques also question Dworkin’s internal perspective, with Hart advocating a moderate external perspective for critical analysis without assuming law’s moral purpose.
Conclusion: Dworkin’s Legacy
Ronald Dworkin’s interpretative theory redefines law as a morally engaged practice, challenging positivism’s separation of law and morality. His concepts of constructive interpretation and law as integrity emphasize judicial reasoning and moral coherence, distinguishing his work within the Anglo-American tradition. Despite critiques of his rhetorical style and caricatures, Dworkin’s ideas illuminate hard cases and the moral dimensions of law. As we explore Seminar 3, his framework invites us to view law as a dynamic, value-laden practice, shaping our understanding of legal systems and their role in fostering justice.
The Introduction to Law Series previous posts include:
What is Law? What is a Legal System?AUTHOR’S SAMPLE PEER-REVIEWED ACADEMIC RESEARCH (FREE OPEN ACCESS):
State Sovereignty: Concept and Conceptions (OPEN ACCESS) (IJSL 2024)
AUTHOR’S PUBLISHED WORK AVAILABLE TO PURCHASE VIA:
Wednesday 30th April 2025
Dr Jorge E. Núñez
Twitter: @DrJorge_World
