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A THEORY OF RIGHTS: SOME REFLECTIONS ON THE
DEVELOPMENT OF RONALD DWORKIN’S

PHILOSOPHY OF LAW

BY

Thomas D. Kotulak

A THESIS

Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of

MASTER OF ARTS

Department of Philosophy

1988

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ABSTRACT

A THEORY OF RIGHTS: SOME REFLECTIONS ON THE
DEVELOPMENT OF RONALD DWORKIN'S
PHILOSOPHY OF LAW

BY
Thomas D. Kotulak

The jperennial debate between. the partisans of
judicial "restraint" and judicial "activism" has become
increasingly poignant and public. Since the articulated
majority opinions of the Supreme Court have the force of
"the law of the land," the explicit or implicit
philosophies of law promulgated therein, dramatize an
important way in which philosophy affects our daily lives.

This thesis attempts to elucidate some of the salient
elements of Dworkin's jurisprudence. The first section is
an introduction, which conveys the importance and timeli-
ness of the topic. The second part is expository inasmuch
as it attempts to extrapolate a theory of rights from
Taking Rights Seriously, A Matter of Principle, and LQEL§
Empire. The third part defends this theory of rights as a
particularly illuminating' account. of constitutional
adjudication. The concluding section provides an account
of how Dworkin’s theory of rights can be seen to affect

future development in the philosophy of law.

ACKNOWLEDGMENTS

Although I have benefited from many members of the
Philosophy Department at Michigan State University, I am
especially grateful to Dr. Bruce Miller (Chairman), Dr.
Martin Benjamin, and Dr. Albert Cafagna for guiding the
progress of this work.

Thanks are also due to Dr. Winston Wilkinson for his
valuable counsel as graduate advisor and to the late Dr.
Lewis Zerby for getting me started down a new and exciting
intellectual path.

Finally, I want to thank my mother, father, sister,
brother, and Uncle Charley, who, in their own special
ways, gave me the benefit of their advice and encourage-

ment.

iii

TABLE OF CONTENTS

Section

I. INTRODUCTION . . . . . .

II. ELEMENTS OF A THEORY OF RIGHTS

Taking Rights Seriously:
of Rights . . . . .

A Matter of Principle
Intention . . .

 

Principle . . . . .
Law's Empire . . . . .
Interpretation . . .

Law as Integrity . .

III. CONSTITUTIONAL ADJUDICATION

IV. POST-DWORKIN JURISPRUDENCE:
INQUIRY IN THE PHILOSOPHY

BI BLI OGRAPHY O O O O O O O O O 0

iv

A

Taxonomy

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11

ll
26
26
35
43
43
53

60

72

89

SECTION I

INTRODUCTION

The inherent weaknesses of a particular conception of
"liberalism" were recognized and articulated long before
conservatives proclaimed the end of dominance by that
political tradition at the dawn of the current decade. I
hope to demonstrate in this thesis why that proclamation
may yet prove premature.

The liberal political tradition reflects the history
of a remarkably resilient political philosophy. The
central concepts it employs like "liberty," "equality,"
and "democracy" admit of many conceptions. Moreover, the
proper relationship between and among these concepts is a
matter of interpretation that determines the particular
conception of liberalism espoused. It should not be
surprising, therefore, to find competing conceptions that
all claim to fall within the liberal political tradition.
It also follows, however, that if the justificatory force
of a particular conception is found lacking, it is not
necessarily the case that the political tradition itself
is imperiled. The explanatory power of a rival conception

within the same tradition may be found to be superior to

any conception found in other traditions. In other words,
recognition of the inherent weaknesses of justificatory
force of a particular conception of liberal political
philosophy may signal the need for a profound reordering
of conceptual relationships within that tradition. If
successful, this reordering may result in a more vital and
encompassing explanatory and justificatory model.

Philosophers have noticed that there is an intimate
connection between political philosophy and the philosophy
of law. Both have a conceptual component and both have a
normative component. In addition, the domain of discourse
for each is inextricably intertwined with the other. It
has also been observed that they are mutually supportive
interpretive enterprises. If this latter claim can be
demonstrated, it will become evident how a philosophy of
law can offer a powerful critique of conceptions within
political philosophy.

The development of Ronald Dworkin’s philosophy of law
purports to provide this demonstration and therefore
claims to show why a particular conception of liberal
political philosophy, utilitarianism, viewed as a goal-
based political theory, is inferior in its justificatory
force to a rights-based political theory. If Dworkin is
successful, "liberalism" may emerge as an even more
powerful political tradition. Rumors of its demise will

not simply be premature, they will be groundless.

Several additional observations are in order by way
of introduction. The first of these is that Dworkin’s
legal and political philosophy is exceptionally difficult
to characterize. Since he is engaged in the process of
reordering and redefining conceptual relationships within
a political tradition already rich in established
distinctions, those very distinctions, based as they are
on more conventional conceptual relationships, fail to
place his philosophy within one of the more traditionally
recognized schools of thought such as natural
law, positivism, or legal realism. His enterprise is much
more ambitious: It attempts to reconstruct the frame of
reference itself. In this regard it is not unlike the
process described by Thomas Kuhn for the interpretation of
data within the enterprise of science. More specifically,
Kuhn makes use of the notion of a theoretical construct.
Simply stated, the theoretical construct functions as a
frame of reference for conceptual relationships. Since
science attempts an ever more encompassing explanation of
natural phenomena, it is always possible that new
empirical data will be anomalous within the established
theoretical construct. If only minor adjustments among
the established conceptual relationships are needed to
accommodate the anomalies, the explanatory value of the

construct is preserved. If the anomalies prove to be

intransigent, however, this may sometimes signal the need
for a new theoretical construct that accommodates the
anomalies without transforming previously explainable
phenomena into anomalies within the new construct.

Dworkin's approach is also not unlike the position
adopted by Kant when the latter hoped to rescue
metaphysics from pure empiricism. Dworkin thinks that
many of the conceptual difficulties encountered in the
philosophy of law are due to an inordinate attention to
linguistic analysis. In answer to the perennial philo-
sophical puzzle, "What is law?," Dworkin responds that it
is an interpretive concept. With this seemingly simple
response he hopes to rescue jurisprudence from the
"semantic sting."

As might be expected from the foregoing, Dworkin’s
legal and political philosophy is exceptionally complex
and holistic, in addition to being difficult to character-
ize. This makes it virtually impossible to isolate a
single conceptual relationship for analysis without also
taking due notice of a plethora of distinctions found in
his philosophy taken as a whole.

Nevertheless, the theory of rights that Dworkin
develops is central to both his legal philosophy and his
political philosophy. He develops it somewhat differently
in each of his three major works. In Taking Rights

Seriously (hereafter referred to as TRS), Dworkin points
out the defects of "the ruling theory of law," which he
sees as consisting of legal positivism in its conceptual
component and utilitarianism in its normative component,
and provides the structural framework for his own
alternative theory. This work is foundational in more
than just the chronological sense. In it Dworkin provides
us with an account of rights that purports to rescue that
valuable notion of the liberal political tradition from
its supposed connection to a questionable ontology of
ethereal entities. Indeed, he claims that the idea of
individual rights is "of no different metaphysical
character from the main ideas of the ruling theory itself"
(TRS, p. xi).

In A Matter of Pringiple (hereafter referred to as
AMP), there is a shift in emphasis to the domain of
political philosophy. Dworkin argues that law and
politics do not occupy independent domains, but he also
rejects the view that they are the same. In constructing
his argument Dworkin develops the notions of "intention"
and "principle," which will prove central to his theory of
adjudication.

Another major theme of this second work is a critique
of liberalism. Dworkin argues that the liberal political

tradition has not taken sufficient pains to elucidate the

form of egalitarianism that it espouses. He thinks that
this failure is responsible for some of the muddled
criticisms now being leveled against that tradition by
more extreme partisans of both the "left" and "right"
positions of the political spectrum.

Building on these seminal works, the idea of "law as
integrity" comes to fruition in Law’s Empire (hereafter
referred to as LE). In TRS Dworkin utilized issues in
legal philosophy to illuminate broader issues in political
philosophy. In AMP his extensive discussion of issues
within political philosophy served to deepen our
understanding of the process of adjudication, an issue
central to legal philosophy. In LE he explicitly states
the intimate connection between political philosophy and
the philosophy of law implied in the earlier works:
"Political philosophers consider problems about the
force of law, and academic lawyers and specialists in
jurisprudence study issues about its grounds" (LE,
p. 111). This substantive distinction, in turn, throws
light on the rationale behind his methodology:

We must hold constant certain parts of our attitudes

and convictions about law, as not under present

study, in order to evaluate and refine the rest. We
use the distinction between grounds and force to that

end. (LE, p. 111)

~ In some ways LE is the most unified and unifying of

the three. In the first place, the earlier works are

primarily collections of essays bound together by a common

theme: the idea of "rights" in TRS and the idea of
"principle" in AMP. The subject matter of each essay
often overlaps with others, and the general tone is
analytic. In LE the tone is more synoptic. The
relationship between and among the central concepts
employed is more clearly developed and seen as part of a
broader and more coherent general philosophy of law. In
addition, as was noticed before, the earlier works took
grounds (TRS) or force (AMP) as different primary
perspectives of reference. The frame of reference of the
latter work is more encompassing inasmuch as it tries to
elaborate on both the grounds and force of law.

In LE we more clearly see the ambitious nature of
Dworkin’s enterprise. He is not content with engaging in
the traditional debate among advocates of natural law,
positivist, and "realistic" schools of thought about the
primacy of justice, legal certitude, or social utility in
a well-developed philosophy of law. He wants, rather,
nothing short of a complete reexamination of the context
of the debate itself. Dworkin sees jurisprudence as
"interpretation" rather than linguistic analysis. For
this reason he rejects some of the classical
characterizations of arguments within that debate, like
the argument about the relationship between law and

morals, as profoundly misleading:

In jurisprudence texts that debate is pictured as a
contest between two semantic theories: positivism,
which insists that law and morals are made wholly
distinct by semantic rules everyone accepts for using

"law," and natural law, which insists, on the

contrary, that they are united by these semantic

rules. In fact the old debate makes sense only if it
is understood as a contest between different
political theories. . . . The argument is not
conceptual in our sense at all, but part of the
interpretive debate among rival conceptions of law.

(LE. P. 98)

As might be expected as a result of this account,
Dworkin discards some of the classic distinctions found in
the philosophy of law as obfuscating terminology left over
from the "semantic sting." He proposes, instead, a new
classification of schools of thought based on their
"interpretive" positions: conventionalism, pragmatism,
and law as integrity. The value of an interpretive
judgment is how well it "fits" and "justifies" what has
gone before. Although the extended discussion of these
two main dimensions of interpretation is long and complex,
suffice it to say for now by way of summary that he finds
law as integrity as a superior interpretation of our legal
practices and applies that interpretation to issues in
common law, statutory construction, and constitutional
adjudication.

It should be evident from the foregoing summary
of Dworkin’s labors that any attempt to do full justice to

the development of his philosophy of law would require a

work much more substantial in scope than that suggested

by the title of this thesis. He himself provides an
outline of the requirements for a general theory of law.
It should have a normative as well as a conceptual
component. The normative component should provide a
theory of legislation, adjudication, and compliance. The
theory of legislation should include a theory of
legitimacy and legislative justice. The theory of
adjudication should provide a theory of controversy and a
theory of jurisdiction. The theory of compliance should
contain a theory of deference and a theory of enforcement.

To say the least, this is quite a comprehensive
agenda, and this thesis makes no attempt to assess how
completely or successfully Dworkin has met the
requirements he himself has set for a general theory of
law. Although it might be argued that the three main
works under consideration do, taken as a whole, provide
the requisite rudimentary elements from which a general
theory of law might be extrapolated, this thesis has a
narrower focus. It concentrates attention on one type of
one element of one branch of Dworkin’s schema,
constitutional adjudication, and tries to show how his
theory of rights provides a superior interpretation of
that practice. Dworkin observes that:

Constitutional law can make no genuine advance

until it isolates the problem of rights against the

state and makes that problem part of its agenda.
That argues for a fusion of constitutional law and

10

moral theory, a connection that, incredibly, has yet

to take place. (TRS, p. 149)

This thesis is offered in hopes of stimulating additional
interest in the connections advocated by these
observations.

The remainder of this paper is divided into roughly
three sections. The first attempts to extrapolate a
theory of rights from the three major works heretofore
outlined. The following section concentrates on issues
pertaining to constitutional adjudication and tries to
show how Dworkin’s theory of rights provides a superior
account of that practice. The final section attempts to
show how the development of that theory of rights affects

future inquiry in the philosophy of law.

SECTION II

ELEMENTS OF A THEORY OF RIGHTS

Taking Rights Seriously: A Taxonomy of Rights

Early in his introduction to TRS, Dworkin provides an
operational definition of the central concept he plans to
examine:

Individuals have rights when, for some reason, a

collective goal is not a sufficient justification for

denying them what they wish, as individuals, to have
or to do, or not a sufficient justification for
imposing some loss or injury upon them. That
characterization of a right is, of course, formal in
the sense that it does not indicate what rights
people have or guarantee, indeed, that they have any.
(TRS, p. xi)
His cautious and formal tone here is understandable once
we remember that he is trying to remove what he believes
to be a major obstacle to taking rights seriously, namely,
that rights have some "special metaphysical character."
Indeed, he wants to insist that his forthcoming argument
about the idea of rights is of no different metaphysical
character than the ideas promulgated by the "ruling theory
of law." To say simply that rights are "political trumps
held by individuals" is vacuous at this stage of the

argument, without additional explanation. The complex

account he begins in TRS will culminate in LE with the

11

12

notion that the idea of rights provides a superior
"interpretation" of our legal practices in terms of "fit"
and "justification." But this evolution must await the
development of law as integrity. For now he is concerned
with differentiating his account of rights from accounts
that do depend on ideas of a special metaphysical
character.

In Chapter 4 of TRS we are provided with a more
elaborate and detailed taxonomy and vocabulary of rights.
.A fundamental distinction, however, provides the context
for this elaboration. This is the distinction between
arguments of policy and arguments of principLe. Dworkin
believes that policy and principle are the two major
grounds for political justification. He admits that they
are not the only grounds but contends that other grounds
are utilized in an "ad hoc" manner (like an extra income
exemption for the blind defended on the grounds of public
generosity). He also admits that these grounds are not
mutually' exclusive. Indeed, he believes that any
legislative program of sufficient complexity will probably
require both forms of argument. In this case it will
prove helpful to think sometimes that a policy generates a
right qualified by a principle and sometimes that a
principle generates a right qualified by policy. They are
sufficiently different, however, to make the following

crucial distinction:

13

Arguments of policy justify a political decision by
showing that the decision advances or protects some
collective goal of the community as a whole. . . .

Arguments of principle justify a political decision

by showing that the decision respects or secures some

individual or group right. (TRS, p. 82)

This distinction is crucial because the rights
thesis that Dworkin advances, "that judicial decisions in
civil cases, even in hard cases . . . , characteristically
are and should be generated by principle not policy" (TRS,
p. 84), needs greater specificity of distinction between
rights and goals if it is to provide an adequate account
of adjudication. "If the rights thesis is to succeed, it
must demonstrate how the general distinction between
arguments of principle and policy can be maintained
between arguments of the character and detail that do
figure in legal argument" (TRS, p. 89). The crucial
distinction cited above provides the structural framework
for the bridge linking principle to right and policy to
goal: "Arguments of principle are arguments intended to
establish an individual right; arguments of policy are
arguments intended to establish a collective goal.
Principles are propositions that describe rights; policies
are propositions that describe goals" (TRS, p. 90).

The additional specificity called for in the
foregoing is now possible. Dworkin now focuses on the

"distributional character" of claims about rights. He

begins by stipulating that a political aim is a generic

14

political justification. If arguments of policy and
arguments of principle are the major sources of political
justification, then both express political aims. But the
aims they express differ in their distributional claims.

A political right is an individuated [emphasis mine]

political aim. An individual has a right to some

opportunity or resource or liberty if it counts in
favor of a political decision that the decision is
likely to advance or protect the state of affairs in
which he enjoys the right, even when no other
political aim is served and some political aim is
disserved thereby, and counts against that decision
that it will retard or endanger that state of
affairs, even when some other political aim is

thereby served. (TRS, p. 91)

It is important to note that the individual is in the
foreground in this description. Other political aims are
seen as relative to the individual’s state of affairs.
There is no question of the proper distribution of some
resource at issue. The macrocosmic perspective is in the
background.

This is not the case when the discussion turns to
goals. "A goal is a nonindividuated [emphasis mine]
political aim, that is, a state of affairs whose
specification does not in this way call for any particular
opportunity or resource or liberty for particular
individuals" (TRS, p. 91). Here the community is in the
foreground. Other political aims are seen as relative to

the community's state of affairs. There is certainly a

question of distribution here. The microcosmic

15

perspective is in the background. Trade-offs in terms of
benefits and burdens on particular individuals or groups
are justified as long as the overall aggregate good of the
community is maintained or enhanced.

In short, distributional claims do not of themselves
provide sufficient justificatory force for an individuated
political aim, whereas they are of paramount importance in
determining the justificatory force for a nonindividuated
political aim.

It follows that the character of a political aim is
dependent on its place and function within a broader
political theory. In some theories the aim advanced will
be seen as a goal, whereas in other theories the same
statement of the political aim will be seen as a right.
The simple proposition that individuals are entitled to
freedom of speech offers an example. If the background
political theory espoused holds that "democracy" is best
served when individuals can freely articulate their
political positions, the proposition functions as a policy
statement because it describes a goal. If, on the other
hand, the background political theory espoused holds that
"democracy" best serves the capacity of each individual to
participate in community decisions, then the proposition
functions as a principle because it describes a right. In
the first case the proposition is more easily qualified by

other propositions that purport to serve the broader

16

aggregate Igoal of‘ serving "democracy." Trade-offs of
benefits and burdens among individuals within the
community are encouraged as long as it can be shown that
the aggregate welfare is enhanced.‘ Dworkin makes the same
point about collective goals: "In each case
distributional principles are subordinate to some
conception of aggregate collective good, so that offering
less of some benefit to one man can be justified simply by
showing that this will lead to a greater benefit overall"
(TRS, p. 91). In the second case, the proposition is not
as easily qualified by other propositions because it
expresses an individuated political aim. The notion of
"distributional principles" is inappropriate here. The
background political theory espoused is not parasitic on
any particular conception of an aggregate good. Offering
less or more of freedom of speech to some individuals is
incomprehensible in the second account. Each possesses it
in an equal though abstract way.

The next set of distinctions that Dworkin elaborates
brings us closer to the degree of specificity required for
a more detailed account of adjudication. The first of
these is the distinction between background and
institutional rights:

An adequate theory will distinguish, for example,

between background rights, which are rights that

provide a justification for political decisions by
society in the abstract, and institutional rights,

17

that provide a justification for a decision by some
particular and specified political institution. (TRS,

p. 93)
Both are species of political rights, and for that reason
both express individuated political aims. But it is
important to note that the political aims expressed by
institutional rights are seen as being justified
by the political aims expressed by background rights and
not the other way around. Dworkin provides a particularly
illuminating example in this regard. An individual may
believe that X has a background right to the property of Y
if X needs it more and yet concede that X does not have an
institutional right to a decision by a court which would
condone theft. X may argue that the legislature ought to
be empowered or that the constitution ought to be amended
to recognize his background right, but he cannot appeal to
an institutional right. that. presumes the existence of
institutions created by society acting as a whole.
The second distinction differentiates between
abstract and concrete rights:
An abstract right is a general political aim the
statement of which does not indicate how that general
aim is to be weighed or compromised in particular
circumstances against other political aims. . . .
Concrete rights, on the other hand, are political
aims that are more precisely defined so as to express
more definitely the weight they have against other
political aims on particular occasions. (TRS, p. 93)

Dworkin points out that the grand rights of political

rhetoric are good examples of abstract rights. The rights

 

18

of free speech, liberty, equality, and. so on, do :not
specify what rights a particular person has on a
particular occasion, especially when there is a question
about the force of a competing claim of right. The
proposition utilized earlier in the discussion about the
character of political aims, that individuals are entitled
to freedom of speech, is a principle expressing an
abstract right. The proposition that individuals are
entitled to freedom of speech except when their exercise
of that right causes others to lose their lives (yelling
"Fire!" in a crowded theater when there is no such treat),
expresses a more concrete right. It is more concrete
because the weighting of conflicting claims is taken into
account in the expression. The force of the abstract
right is not denied: it is mitigated in a context—
dependent way. "Abstract rights in this way provide
arguments for concrete rights, but the claim of a concrete
right is more definitive than any claim of abstract right
that supports it" (TRS, pp. 93-94).

The stage has now been set for a more detailed
account of the role of the rights thesis in adjudication.
Before commencing that account, however, it might prove
helpful to review the course of Dworkin's development thus
far. He first asserted that the two primary grounds for
political justification were arguments based on policy and

arguments based on principle. He argued that arguments of

 

19

policy tried to advance or protect a collective goal,
while arguments of principle attempted to respect or
secure some right. But the rights thesis maintained that
judicial decisions in civil cases, even in hard cases, are
and should be generated by principle rather than policy.
At the level of adjudication, however, legal arguments
have a greater degree of specificity than that provided by
his first distinction. The second distinction, by linking
principle to right and policy to goal, provided for a more
precise formulation: Principles are propositions that
describe rights, and policies are propositions that
describe goals. This move allowed for a more enlightening
discussion of rights and goals as political aims. If
political aims are generic political justifications and if
a political right is an individuated political aim, then
principles could also be seen as individuated political
aims. In the same way, if goals are nonindividuated
political aims, then policies can also be seen as
nonindividuated political aims. In phis manne; he
d onstr es hat the 'us fic to o o ot o i

and i ci le derives rom 01' 'cal st be
gpgued on that same terripppy. Different political
theories give rise to different political justifications.
These justifications are expressed as political aims which

may be either individuated or nonindividuated. If they

20

are individuated, they will be classified as either
background or institutional political rights. If they are
background rights, they are "residual" in the sense that
they do not presuppose the existence or creation of
particular political institutions. If they are
institutional rights, they do presume these political
institutions as somehow expressing the consent of society
taken as a whole. Since the former are more "proximate"
to the domain of political theory, they cannot be
justified in terms of the latter, which are less
"proximate" in terms of logical priority, whereas the
latter can be justified in terms of the former.
Similarly, an abstract right cannot be justified in terms
of a concrete right, but an abstract right may provide a
powerful rationale for the force of a concrete right.
Given the aforesaid distinctions that summarize the
progress of Dworkin’s development thus far, we can now
more adequately assess the role of the rights thesis in
adjudication. If adjudication is seen as a process of
decision making that purports to determine the relative
strength of competing political aims within a political
community, then several features of that process become
apparent. In the first place, if rights are claimed, the
"competing aims" feature of the process mandates a
judgment that concrete rights be either affirmed or

denied. Since abstract rights do not prescribe what

21

rights a person has on a particular occasion and since
litigation is predicated on controversy inherent in
competing claims between particular parties in particular
circumstances, adjudication must be context-dependent.

But more is needed to assess the role of the rights
thesis in adjudication than simply noticing that concrete
rights are at issue.

The rights thesis provides that judges decide hard

cases by confirming or denying concrete rights. But
the concrete rights upon which judges rely must have
two other characteristics. They must be

institutional rather than background rights, and they

must. be legal rather ‘than. some. other form of

institutional rights. (TRS, p. 101)
Legal rights are thus placed in conceptual relationship to
other rights within Dworkin's schema: "Legal rights may
then be identified as a distinct species of a political
right, that is, an institutional right to the decision of
a court in its adjudicative function" (TRS, p. xii). At
first glance it may seem that this move, which subsumes
legal rights as a species of institutional rather than
background political rights, supports the positivist
assertion that law and morality are made wholly distinct
by semantic rules that define the territory encompassed by
"legal." But this is only a brief illusion made possible
by the "semantic sting." Although the move does deny the

assertion of natural-law theorists that law and morals are

united by shared semantic rules, it also denies the

 

22

positivist assertion that they are "wholly distinct." To
see why this is so, we must remember that although a
background right cannot appeal to an institutional right
for additional justificatory force, an institutional right
may appeal to a background right for precisely that
support. Dworkin makes the point that institutional
rights are fixed by "constitutive and regulative rules"
that are recognized as belonging distinctly to the
enterprise in question. Some institutions are completely
autonomous inasmuch as they define their own parameters
and procedures in such a way that appeal to extra-
institutional norms is ruled out by stipulation. He
offers the game of chess as an example. But other
institutions are only partly autonomous in this sense.
This is especially true of political institutions. The
constitutive and regulative rules that belong to this
enterprise are rarely sufficient to determine what
institutional rights an individual has in controversial
situations. A citizen is expected to repair to political
morality when he wishes to argue for such rights. "The
fact that some institutions are fully and others partly
autonomous has the consequence mentioned earlier, that the
institutional rights a political theory acknowledges may
diverge from the background rights it provides" (TRS, p.
101). In this way we see that Dworkin permits an appeal

to extra-institutional norms in adjudication and thus

23

denies the positivist assertion that such appeals are only
disguised acts of judicial legislation.

He hastens to add, however, that institutional rights
are nevertheless genuine rights. If a background right is
asserted that X has a right to the property of Y if X
needs it more and that assertion is not recognized as an
institutional right, it would be wrong under the
constitutive and regulative rules in force to appropriate
the property of Y and give it to X. Participants in the
enterprise have a genuine right that the rules adopted by
the political society will be honored.

It might be objected, however, that if legal rights
must be institutional rights rather than background rights
and if judges can appeal to extra-institutional norms to
determine what those rights are, then the foregoing
account of adjudication seems hopelessly subjective. But
this apparent confusion is a result of our thinking in
terms of traditional conceptual relationships left over,
once again, from the "semantic sting." Although a more
detailed elaboration of "interpretation" must await our
analysis of Dworkin’s development in AMP and LE, suffice
it to say for now that law seen as an interpretive concept
is best illustrated by the process of adjudication in hard
cases:

The hard case puts, we might say, a question of
political theory. . . . The concept of a game’s

24

character is a conceptual device for framing that

question. It is a contested concept that

internalizes the general justification of the
institution so as to make it available for
discriminations within the institution itself. (TRS,

pp. 104-105)

Dworkin observes that legal arguments in hard cases
turn on such contested concepts. The critical point to be
observed is that although a legal right must be an
institutional right to be enforced by a judge in
adjudication, it is often unclear exactly wha 1e a ri ht
has been established by the institutional right in
dispute. In easy cases the institutional right is seen
clearly to establish a legal right with nothing more. In
hard cases, however, one cannot simply repair to the
institutional right for guidance because what legal right
has been established by the constitution or the statute or
the precedent is precisely what is in dispute. The judge

has no choice but to repair to extra-institutional norms.

The fact that judges do sometimes behave in this way is

generally agreed. The gharacpgrizgtiop of that behavior
is the crux of the controversy. Some would characterize

such behavior as "legislating interstitialLy between the
rules": others might hold that judges behave "as if" they
are applying established "principles" of the law.
Dworkin's account is much different. He sees no
reason to accept the aforesaid explanations of what judges

do in hard cases. He asks us to examine what it means to

25

say that the conventions associated with an institutional
enterprise have run out:
It is important to see, however, that the conventions
run out in. a particular way. They are not
incomplete, like a book whose last page is missing,
but abstract, so that their full force can be
captured in a concept that admits of many
conceptions; that is, in a contested concept. (TRS,
p. 103)
In this account the judge is seen as deciding what
particular conception he or she must adopt to enforce the
convention. It is not a matter of supplementing the
convention or pretending that its force has not run out.
Since legal arguments turn on such contested
concepts, it will be profitable to examine some of these
in greater detail. Dworkin proposes that two will be
particularly illuminating. The first is the concept of
"intention" or "purpose": "This concept provides a bridge
between the political justification of the general idea
that statutes create rights and those hard cases that ask
what rights a particular statute has created" (TRS, p.
105) . The second concept he wants to scrutinize is the
idea of "principles" that underlie the rules of positive
law: "This concept provides a bridge between the
political justification of the doctrine that like cases
should be decided alike and those hard cases in which it

is unclear what that general doctrine requires" (TRS, p.

105).

26

These concepts, although treated in TRS, are more
elaborately formulated in AMP. In this latter work
"intention" and "principle" are treated more generically.
Since we are primarily concerned with adjudication rather
than legislation and since LE draws upon AMP fairly
extensively, it is now time to turn our attention to the

second of Dworkin's major works.

A Matter of Principle

Intention

It was observed earlier that judges often appear to
be repairing to extra-institutional norms when deciding
hard cases. This is especially true in constitutional
adjudication, or at least it seems to be the case that
constitutional issues dramatize the controversial nature
of this phenomenon. Dworkin maintains that judges cannot
do otherwise in such cases; the nature of the activity in
question entails such a repair. Others, however, deplore
such a state of affairs. They may agree that this is an
accurate account of what the judges are doing but may
insist that it is simply wrong to engage in such an
activity.

What is at stake here, and why are the debates
surrounding the "interpretation" of the Constitution so
intense? One possible explanation is that critics of

extra-institutional appeal see a fundamental tension

27

between "judicial review" and "democracy." If judges
appeal to extra-institutional norms, which norms are they
appealing to--their own or those held by the community in
establishing a constitution in the first place? Since
there is always a possibility of conflating the former
with the latter, it is safer for "democracy" to deny, or
at least severely limit, such a potentially subjective
practice. Judicial review, in the account of these
critics, should concentrate attention on trying to
ascertain framers’ "intention" when hard cases arise.
Although this may sometimes prove to be a difficult task,
it may be the only way that we can ensure some degree of
objectivity in constitutional adjudication. The presumed
tension between "judicial review" and "democracy" is thus
seen to be resolved in favor of the latter.

Upon closer examination, however, it is not at all
clear that reliance on "framers' intention" ensures such
objectivity. Indeed, insistence on the primacy of
"framers' intention" within a constitutional theory is
itself parasitic on a particular conception of "democracy"
that finds its justificatory force in the realm of
political theory. This, too, is an appeal to an extra-
institutional norm of the same type that is condemned by
critics of Dworkin's account.

Some part of any constitutional theory must be

independent of the intentions or beliefs or indeed
acts of the people the theory designates as Framers.

28

Some part must stand on its own in political or moral

theory: otherwise the theory would be wholly

circular. . . . It would be like the theory that
majority will is the appropriate technique for social
decision because that is what the majority wants.

(AMP, p. 54)

As was pointed out earlier, the set of critics under
discussion do not deny the 1193; that judges sometimes
appeal to extra-institutional norms: they only claim that
such appeals are am. But if these critics must
themselves appeal to extra-institutional norms to justify
their condemnation of the practice, it would seem that
their value judgments are misplaced at this level of
discourse. If, as Kant has suggested, "ought" implies
"can," then the inability to extricate constitutional
adjudication from reliance on extra-institutional norms,
as Dworkin maintains, precludes the possibility of
ascribing "rightness" or "wrongness" to the practice. The
real issue is not what the framers intended the
Constitution to mean, but what conception, if any, of
framers' intention the Constitution requires. This issue
can only be argued within the realm of political morality,
and the "rightness" or "wrongness" of a particular
conception is the real value judgment in question.

Even if the concerns articulated by the opponents of
appeal to extra-institutional norms were granted, however

(and as we have seen, there is no compelling reason to do

this), what sort of "objectivity" would be gained by an

 

29

appeal to "framers' intention" viewed as an alternative
theory of judicial review? The presumption is that we can
accurately determine or approximate the "meaning" intended
by the framers by a close examination of historical
records, committee reports, and the like. There may be
something reassuring about examining something tangible
and external to the interpreter that beguiles that person
into believing that the resulting interpretation is more
"objective" simply because of the labor involved.

But there are serious problems with this account.
The "framers’ intention" advocates of judicial review
presume a definitive answer to a series of questions that
can only be agreed upon by those already holding a
particular conception of constitutionalism. In the first
place, who are we to count as "framers"? Are the mental
states of just the drafters of the document to be
considered, or should we try to ascertain the mental
states of those who ratified the document as well?
Moreover, how are we to count? Should those who express
their opinions more vociferously or more frequently in
debates count more than those who simply have their vote
recorded? Anyone approaching the interpretation of the
Constitution from a "framers' intention" orientation
presumably has formed some judgments in answer to these
questions if he or she hopes to convince others of the

"objectivity" of the methodology employed. But these

30

judgments are precisely the sort that reasonable people
will disagree on. Agreement is likely only among those
who, as was mentioned. before, share a particular
conception of constitutionalism.

But let us assume for the sake of argument that the
complex calculation required in the fOregoing account is
agreed on by those charged with the responsibility of
constitutional adjudication. Even so, there are
additional complications.

Dworkin maintains that we must be clear to
distinguish between hopes and expectations when trying to
determine the psychological state of an individual framer.
That person may vote, for example, in the affirmative on a
particular provision, hoping that it will be construed in
a particular way but expecting that it will not be. The
decision to vote in the affirmative may have been an
exceptionally complex deliberation which ultimately turned
on the feasibility of getting a better worded provision,
from the point of view of the framer in question, passed.
Are we then to say that our framer’s intention is the same
as the intention of the framer whose wording is finally
adopted? This certainly complicates the calculation that
we have assumed earlier.

In addition, is it reasonable to assume that there is

a single intention in the mind of a particular framer? If

31

there is more than one, which certainly seems likely, how
are we to determine the dominant intention? How are we to
weight, if at all, a multiplicity of intentions?

It is also important to distinguish between a
framer's abstract and concrete intentions. A framer
may intend to vote for a particular provision because he
or she believes in its statement as a matter of general
principle and yet express concrete convictions that may
seem to others at variance with the abstract principle
that is formally espoused. That person may believe, for
example, that Congress should make no law respecting the
establishment of any religion as a matter of general
principle. He may believe, that is, that state support of
religion would violate a certain spirit of toleration for
different religious beliefs. He may also express the
belief, however, that Congress should encourage religious
observances among the citizenry, perhaps by making it
unlawful to conduct interstate commerce on Sundays, as
long as it does not specify 1111231 religion must be
observed. He votes for the provision because he
understands it to prohibit the establishment of any
particular religion. His understanding is that
prohibiting interstate commerce on Sundays does not
violate the spirit of toleration for different religious
beliefs. It does not occur to him that the provision

might be construed to prohibit Congressional action with

 

32

regard to religion generically. Which "intention," the
concrete or the more abstract, should our "framers’
intention" advocates count in making their determination
of what the Constitution requires? The framer's abstract
intention is that government should not violate the spirit
of religious toleration by formally adopting a state
religion. But he does not believe that Congressional
action to prohibit interstate commerce on Sunday
establishes a state religion. His abstract intention is
consistent with the wording of the provision, but his
concrete intention is a particular conception of what the
abstract wording does or does not require.

Thus far, attention has been given to the attendant
difficulties of establishing a definitive "intention" for
an individual framer. As might be expected, the problems
are compounded when one tries to ascertain a collective
intention. One approach that Dworkin labels a "majority
intention" approach assumes that there is a set of
intentions held by each member of a subclass defined
numerically as the majority of the pertinent population
under consideration. Setting aside for a moment the
complexities noticed before in trying to determine the
membership of this "pertinent population," there is a
deeper difficulty illuminated by the aforesaid discussion

about concrete and abstract intentions. Even if there is

33

sufficient agreement at the level of abstract intention
among the majority of the members in the given population,
the expression of any one member's concrete intentions as
to what is being allowed or prohibited by the provision
under discussion is unlikely to command the same degree of
majority assent enjoyed by the more abstract statement of
intention. The recitation of a series of hopes held by
any particular member of the majority may encounter
opposition from other members as the degree of specificity
is increased. This is because rival conceptions of a
contested concept are now brought into the forum of public
debate.

Another approach that Dworkin considers is that of
"representative intention." According to this account, a
sort of composite intention is formulated that is not too
far from any one framer's intention but is identical to no
single framer’s intention. Obviously, the major drawback
of this approach is that it requires a judgment call that
is not too far removed from the sort of "subjectivity"
that advocates of the "framers' intention" school of
judicial review hope to overcome by their theory.

It seems, therefore, that the "framers’ intention"
theory of judicial review faces serious impediments in its
search for "objectivity." Dworkin provides a succinct

summary of such attempts:

34

There is no stubborn fact of the matter--no "real"
intention fixed in history independent of our
opinions about proper legal or constitutional
practice--against which the conceptions we construct
can be tested for accuracy. The idea of an original
constitutional understanding therefore cannot be the
start or ground of a theory of judicial review. At
best it can be the middle of such a theory, and the
part that has gone before is not philosophical
analysis of the idea of intention, and still less
detailed historical research. It is substantive--and
controversial--political morality. (AMP, pp. 39-40)

It is important to emphasize, however, that Dworkin
sees a role for "intention" in constitutional
adjudication. He merely wants to place that concept in
proper perspective:

I do not mean that we can sensibly state any

political conclusion we choose in the language of

intention, so that if we think the delegates to the
original constitutional convention should have
outlawed slavery, for example, we can say that they
intended to do so, whatever they said or thought.

The concept of constitutional intention is bounded by

those aspects of the concept of intention that are

not contested. . . . (AMP, p. 40)

Later, in his development of law as integrity, the
concept of "intention" functions as a parameter for
coherence in judicial interpretation. It is not the only
one, to be sure, nor is it necessarily the most important
parameter, but it is a valuable guide to determining what
legal rights the Constitution, as an institution,
provides.

If we cannot repair to the original "intention" of

the framers as a starting point for constitutional

adjudication in hard cases and if we accept the notion

35

that ultimately we must engage issues of political
morality in constitutional discourse, then we should be
prepared to articulate at least the broad outlines of a
political theory that justifies our approach as to what
the Constitution requires in judicial decision making. As
Dworkin observes:
If we want judicial review at all . . . then we must
accept that the Supreme Court must make important
political decisions. The issue is rather what
reasons are, in its hands, good reasons. My own view
is that the Court should make decisions of principle
rather than policy--decisions about what rights
people have under our constitutional system rather

than decisions about how the general welfare is best
promoted. . . . (AMP, p. 69)

Principle

In Part Three of AMP, Dworkin attempts to provide
the outlines of the political theory described above. It
is a liberal political theory, to be sure, but it is
fundamentally' different from the liberal political
theories associated with utilitarianism.

In introducing the topic of this thesis, it was
observed that the liberal political tradition was seen by
many to be losing its justificatory force. Indeed,
Dworkin himself attacks the brand of liberalism associated
with what he calls the "ruling theory of law." In AMP he
more fully develops an alternative account of liberalism.
If we take seriously his claim that political philosophy

is an integral part of any philosophy of law (a claim made

36

most forcefully in LE), then it will be important to
examine the main features of Dworkin's political
philosophy to more adequately assess the development of
his jurisprudence.

He begins, characteristically, with a fundamental
distinction between constitutive political positions and
derivative political positions. The former are valued for
their own sake, while the latter are valued only insofar
as they can be seen as viable strategies for achieving
what is required by the constitutive positions. Dworkin
argues, contrary to the modern, popular, and conventional
wisdom, that the disarray within the "liberal" camp is not
due to any loss in justificatory force of constitutive
positions but is a result of failure to recognize the
inadequacies of some of the derivative positions in light
of changing social values. Moreover, and more seriously,
many who claim a liberal allegiance confuse derivative
positions with constitutive positions and thus undermine
the tradition they claim to espouse.

Dworkin offers a particularly illuminating example in
this regard. Many "New Deal" liberals seemed to advocate
a. greater' role: for’ government in stimulating' economic
growth. The tenets of Keynesian economics and the visions
of a "Great Society," "New Deal," "Fair Deal," "New
Frontier," and so on, all seemed to focus on the notion

that greater material prosperity for more and more

37

citizens was a proper political aim. As social
circumstances changed, however, and as people began to
question the intrinsic value of economic growth per se,
new values began to emerge. Environmental quality,
consumer protection, and other issues related to the
"limits of growth" ethic began to demand attention.
Insofar as rampant economic growth was seen to be inimical
to these emerging values and insofar as it was seen to be
associated with the liberal political agenda, some began
to question the justificatory force of the tradition
itself and either abandoned it altogether or sought,
sometimes in vain, to reconcile it with other conceptions
of the tradition which were, themselves, not without
features that could be accepted wholesale within the new
rhetoric. For these reasons it became fashionable to
denigrate liberalism and to search elsewhere for a
coherent political theory.
Dworkin, however, is not so willing to abandon this
venerable and resilient tradition:
But is this emphasis on growth a matter of
constitutive principle because liberalism is tied to
some form of utilitarianism that makes overall
prosperity a good in itself? . . . Or is it a matter
of derivative strategy within liberal theory--a
debatable strategy for reducing economic inequality,
for example--and therefore a matter on which liberals

might disagree without deep schism or crisis? (AMP,
p. 184)

38

It will come as no surprise that Dworkin affirms the
second possibility given above. He then proceeds to give
his own account of what is constitutive of the liberal
tradition and begins by asking whether there is a common
thread or principle that unites the core liberal
positions. He thinks that there is and calls this
principle the "liberal conception of equality."

Elaboration of this principle requires another
distinction:

We must distinguish between two different principles

that take equality to be a political ideal. The

first requires that the government treat all those in
its charge as egpals, that is, as entitled to its
equal concern and respect. . . . The second principle
requires that the government treat all those in its
charge egpally in the distribution of some resource

[or] opportunity, or at least work to secure the

state of affairs in which they all are equal or more

nearly equal in that respect. (AMP, p. 190)

Although Dworkin maintains that the first principle
is constitutive and the second is derivative, he takes
pains to point out that, as stated, even those of a
conservative orientation might be persuaded to accept this
distinction and characterization. More is needed to
specify the "liberal conception of equality" that he has
in mind.

Toward that end he asks us to consider what it means
for a government to treat its citizens as equals. There

are two basic answers to this question:

The first supposes that government must be neutral on
what might be called the question of the good life.

39

The second supposes that government cannot be neutral
on that question, because it cannot treat its
citizens as equal human beings without a theory of
what human beings ought to be. (AMP, p. 191)
Advocates of the second answer insist on a
substantive answer to the question of what constitutes the
good life. It is not unusual to hear arguments, even from
those who profess a liberal persuasion, which extol the
virtues of community, "aesthetic appreciation," and so on,
as constitutive of the good life. Positions which do not
specifically include these values are viewed as hopelessly
individualistic or atomistic, or, worse still, expressive
of anarchic tendencies. But proponents of this point of
view, although they generally express noble and altruistic
ideals, seem to ignore the fact that it is one thing for
an individual to pursue what seems to him the path of
greatest virtue and quite another for a government to
pursue what seems to it the path of greatest virtue. The
latter is an abstract concept expressing a relationship
among individuals in all societies. As such, the notion
of "agency," properly construed as the active force
resulting from volition, cannot be predicated of
government. In short and in a deep sense, there is no
such thing as a "government" pursuing what seems to it the
path of greatest virtue, but only individuals temporarily

entrusted to secure the conditions of agency for their

fellow citizens as members of a society. For these

 

40

individuals so entrusted, no matter how enlightened they
may seem to themselves and to others, to make substantive
determinations of "the good life" for others is tantamount
to subverting the sense of community assumed by a
particular conception of democracy.

Advocates of what might be called the "neutral"
position on the good life, on the other hand, accept the
fallibilities and frailties of the human condition as a
given and offer the following account:

The first theory of equality supposes that political

decisions must be, so far as possible, independent of

any particular conception of the good life, or of

what gives value to life. Since the citizens of a

society differ in their conceptions, the government

does not treat them as equals if it prefers one
conception to another, either because the officials
believe that one is intrinsically superior, or
because one is held by the more numerous or powerful

group. (AMP, p. 191)

There is a specific recognition in this account that
particular conceptions of the good life are always held by
individuals "qua" individuals, even when they are acting
in a governmental capacity. Since all individuals are
subject to fallibilities and frailties, it would be wrong
to institutionalize individual. preferences for"what is
constitutive of "the good life."

There is also recognition in this account of the
truth that is somewhat obscured by the familiar rhetorical

slogan that democracy is a government of laws and not men.

The particular conception of democracy envisioned by

41

proponents of the "neutral" position heretofore outlined
see community in a special way. It is not synonymous with
society but a way of ordering society. As a way of
ordering society it is an interpretation of the proper
relationship between and among individuals who constitute
the society. That relationship, in turn, is characterized
by a respect for the active agency which is seen to be the
most fundamentally human aspect of human society. The
role of government in this account is to secure and
maintain this relationship. Law functions as the means by
which a government seeks to accomplish the ends entrusted
to it by society.

Viewed in this way, the "liberal conception of
equality" that Dworkin maintains is a constitutive
position of liberalism does not lead to atomistic
individualism. Agency is not confused with autonomy. The
latter connotes the notion of functioning freely and
independently without the control of others, whereas the
former insists only that constraints on the individual are
justified when that individual impairs the capacity of
other individuals to function as agents. There is an
"other-directed" quality about agency that is not
expressed by the notion of autonomy. Conflating the terms
misrepresents the former in a serious way that does not do
justice to the sense of community espoused by the "liberal

conception of equality." Indeed, both the explanatory

42

power and justificatory force of this conception are
dependent on a sense of community that is far more
consistent with democratic principles than conceptions of
equality that see community as an outgrowth of government.
The liberal conception of equality assumes community from
the outset as a necessary condition for "the good life"
(however that is interpreted by each member of the
society). In this view, governments are fashioned to
secure and maintain that necessary condition through law.
Those who posit substantive notions of "the good life" as
a starting point for their political theories impose their
own versions of this problematic concept on the other
members of a society through government. This is
tantamount to allowing a subset of society's members, no
matter how enlightened and benevolent, to determine the
aspirations for all the other members. But when we speak
of "democracy" the sense of community we seem to value is
one that recognizes the inherent dignity and capacity for
agency of each individual. Community is seen as enabling
the fruition of individual aspirations rather than the
end-point of all aspirations. In short, the liberal
conception of equality views community as logically
antecedent to government, whereas many rival conceptions
see community as a much-hoped-for consequence of

government.

43

Dworkin’s political philosophy is therefore a
powerful conception of liberalism: "In this respect,
liberalism is decidedly not some compromise or halfway
house between more forceful positions, but stands on one
side of an important line that distinguishes it from all

competitors taken as a group" (AMP, p. 192).

w's ° e
Integpretation

After providing an elaborate and complex account of
the taxonomy of rights in TRS, Dworkin more closely
scrutinized the notions of "intention" and "principle" in
AMP. These latter were viewed as "contested concepts"
which illuminated the connection between the theoretical
and the normative components of his political and legal
philosophy. As was noticed before, TRS focused attention
on the grounds of law, whereas AMP was primarily concerned
with the notion of the force of law.

In LE a more unifying and holistic account
of Dworkin’s position is proffered. The unifying concept
of this major work is that of "interpretation":

But if law is an interpretive concept, any

jurisprudence worth having must be built on some view

of what interpretation is, and the analysis of
interpretation I construct and defend in this chapter

is the foundation of the rest of the book. (LE,
p. 50)

44

But even here, in keeping with the spirit of his
substantive account, Dworkin recognizes the inherent
limitation of the project he proposes to pursue:

Unfortunately, even a preliminary account will be

controversial, for if a community uses interpretive

concepts at all, the concept of interpretation will
be one of them: a theory of interpretation is an
interpretation of the higher-order practice of using
interpretive concepts. (So any adequate account of

interpretation must hold true of itself.) (LE, p. 49)

Nevertheless, although it is important to keep this
qualification in mind, Dworkin has constructed an
impressive case for his notion that law is an interpretive
concept. If we accept his argument, then the traditional
debates within the enterprise of jurisprudence will be
recast as rival interpretations of the force of law.

Indeed, Dworkin begins his discussion of interpretive
concepts by noticing the "semantic sting" implicit in the
traditional debates: "The logic that wreaks this havoc is
the logic just described, the argument that unless lawyers
and judges share factual criteria about the grounds of law
there can be no significant thought or debate about what
the law is" (LE, p. 44).

Dworkin believes that the aforesaid account of when
genuine disagreement is possible is not exhaustive and
failure to recognize this fact is responsible for a great
deal of muddled thinking in the philosophy of law: "But

much disagreement in law is theoretical rather than

empirical. legal philosophers who think there must be

45

common rules try to explain away the theoretical
disagreement" (LE, p. 46). In particular, he notices that
the "semantic sting" does not account for a whole set of
disagreements about social practice. Members of a
particular community share certain practices and
traditions and sometimes disagree about the best
interpretation of these practices and traditions. They
might disagree, that is, about what those practices and
traditions require in particular circumstances:
These claims are often controversial, and the
disagreement is genuine even though people use
different criteria in forming or framing these
interpretations; it is genuine because the competing
interpretations are directed toward the same objects
or events of interpretation. (LE, p. 46)
In short, at least when speaking of social practices in
general, it is not necessary for the disputants to share
factual criteria before disagreement of a genuine kind is
possible and the "semantic sting," insomuch as it purports
to set the ground rules for disagreement, is clearly an
inadequate account. Dworkin suggests that attending to
the way that disagreements occur within our social
practices will illuminate an important way in which they
occur within our legal practices as well. This requires a
closer look at the process of interpretation.
Initially, an overview will prove helpful. Dworkin

asks us to attend to the two components of any

interpretive attitude. First of all, when we are

46

interpreting a particular practice, we are assuming not
only that it exists but that it also has value. We
assume, that is, that there is some point to the practice.
The fact that it is a social practice assumes that, to
varying degrees, it is accepted by the members of a
community as having some value for the community. Second,
the behavior or judgments that the practice calls for are
seen to be sensitive to its point. These behaviors and
judgments are not necessarily or exclusively associated
with the practice in question but have become connected to
the practice by convention. In other words, it is always
appropriate to evaluate these behaviors and judgments in
relationship to their point. The "point" thus modifies or
qualifies the behaviors and judgments.

Once the members of a society adopt this interpretive
attitude toward their social practices, the institution in
question no longer represents "unstudied deference to a
runic order" (LE, p. 47). The members of the society
attempt to impose meaning on the institution.

Dworkin is quick to notice, however, that the generic
features of the interpretive attitude can be applied to a
number of different contexts of interpretation, and his
aim is to elucidate a distinct species of interpretation:

The form of interpretation we are studying--the

interpretation of a social practice--is like artistic

interpretation in this way: both aim to interpret
something created by people as an entity distinct

47

from them, rather than what people say, as in

conversational interpretation, or events not created

:g)people, as in scientific interpretation. (LE, p.
He calls this form of interpretation "creative
interpretation" because he sees the interpretation of
social practices and works of art as essentially concerned
with purposes as opposed to causal explanations.

Having made these distinctions, however, he
recognizes that it will not be enough simply to notice
that the interpretive attitude will be applicable to a
wide variety of interpretive contexts. In; needs an
interpretation of interpretation that will accommodate the
various contexts in such a way that creative
interpretation will be seen to be a subset of a more
encompassing enterprise. The conception of interpretation
that performs this role he calls "constructive":
"Roughly, constructive interpretation is a matter of
imposing purpose on an object or practice in order to make
of it the best possible example of the form or genre to
which it is taken to belong" (LE, p. 52).

Once again, he is quick to point out that this
account does not allow for unrestrained subjectivity.
That which is being interpreted exists apart from the
observer, and that concept, or entity, or practice being

interpreted brings a history, a contour, or some other set

of restraints on possible interpretations. Still:

48

The constructive account of creative interpretation,
therefore, could perhaps provide a more general
account of interpretation in all its forms. We would
then say that all interpretation strives to make an
object the best it can be, as an instance of some
assumed enterprise, and that interpretation takes
different forms in different contexts only because
different enterprises engage different standards of
value or success. (LE, p. 53)

To summarize, the interpretation of social practices
is similar to the interpretation of art inasmuch as both
are. concerned. essentially' with. purposes as opposed to
causal explanations. For this reason Dworkin wants to
call them forms of "creative interpretation." Creative
interpretation can then, in turn, be seen as a subset of a
particular conception of interpretation that he calls
"constructive," which embraces other contexts of
interpretation.

Since he is ultimately concerned with law as an
interpretative concept, however, more is needed by way of
examining the similarity between interpretation as it
functions in social practices and interpretation as it
functions in art. Keeping in mind the components of the
interpretive attitude outlined before, Dworkin asks us to
consider what can be meant by the concept of author’s
"intent" when interpreting a literary work. If
interpretation as a generic enterprise is seen as an
attempt "to make an object the best it can be, as

an instance of some assumed enterprise," it is clear that

no Ihistorical, conscious-mental-state conception of

49

"intention" will suffice. The societal context, for
example, may have changed sufficiently since the
literary work was created that many of the original
author’s concrete intentions no longer have meaning for
the interpreter. The interpreter must bring to the work
of art the entire cultural milieu in which he is immersed
and try to do justice to an author's abstract intention in
constructing an interpretation.

Another’ difficulty 'with. the conscious-mental-state
account is the problem of "not unintended" intentions. If
an author is confronted by a critic with an account of the
former's work that that person had not even considered
when creating his work but now, on reflection, sees as
even further illuminating his original intention, he is
apt to say that this account is what he "intended,"
although, strictly speaking, he might say that he did not
unintend that account. Which account, the author's
original or the one informed by the critic, shall we take
as the author’s "intention"? Dworkin sees no reason why
we cannot accept the latter.

Moreover, he sees interpreting social practice in
much the same light. Utilizing, by way of example, the
social practice of courtesy, he observes:

Each citizen, we might say, is trying to discover his

own intention in maintaining and participating in

that practice--not in the sense of retrieving his
mental state when last he took off his cap to a lady

50

but in the sense of finding some purposeful account

of his behavior he is comfortable in ascribing to

himself. (LE, p. 58)

We should now recall Dworkin's discussion of
"intention" in AMP. In that work he denied the
possibility of ascertaining some "framers' intention" in
interpreting the Constitution. He did not deny any role
whatsoever for intention but only rejected a particular
conception of that concept that held for a discoverable,
historical, conscious-mental-state on the part of the
framers. The role that intention plays in Dworkin's
philosophy of law is now more evident:

For even if we reject the thesis that creative

interpretation aims to discover some actual

historical intention, the concept of intention
nevertheless provides the gomal structure for all
interpretive claims. I mean that an interpretation

is by nature the report of a purpose; it proposes a

way of seeing what is interpreted--a social practice

or tradition as much as a text or painting--as if
this were the product of a decision to pursue one set
of themes or visions or purposes, one "point," rather

than another. (LE, pp. 58-59)

Discussion of law' as an interpretive concept of
social practice must await further elaboration of what is
involved in constructive interpretation. Toward this end
Dworkin makes an analytical distinction among three stages
of any interpretation. The stages are distinguished by
the degree: of consensus required for' each if the
interpretive attitude is to flourish there. The first of

these is the "preinterpretive" state where the tentative

content of the practice to be interpreted is given. It is

51

important to note that a fairly high degree of consensus
within a community is required at this stage. There must
be some minimally controversial account here of what
counts as the practice in question. The second stage is
the interpretive stage at which the interpreter determines
a general justification for the practices enumerated at
the preinterpretive stage. Finally, there is a post-
interpretive stage at which he reevaluates what the
practices require in light of the justification he
provides at the interpretive stage. Dworkin employs the
helpful example of courtesy as a social practice designed
to show respect. There are certain practices that will be
viewed as unmistakable instances of courtesy in a society.
Identification of these occurs at the "preinterpretive"
stage of interpretation. Our interpreter might see these
practices as justified by the desirability of showing
respect to fellow members of the society. This occurs at
the interpretive stage. Finally, in the postinterpretive
stage, the interpreter may want to reexamine the social
practice of courtesy and what it requires in light of what
he has accepted as its justification in the interpretive
stage.

The distinction between concept and conception is
also helpful here in discussing the nature of constructive

interpretation. Debate within a community about courtesy,

52

Dworkin maintains, will have a tree-like structure.
Generally accepted abstract propositions about courtesy
will form the trunk of the tree. At a certain stage in a
community’s development almost everyone will agree that
courtesy is employed as a sign of respect, for example.
But the community may divide on the correct interpretation
of respect. Some members of the community may feel that
people of a certain rank or social status are deserving of
respect, whereas other members may feel that respect is
something that is earned. This is the first branching of
the trunk of the tree in the proposed analogy. The first
group may further divide as to which ranks are deserving
of respect, while the latter group may divide over the
issue of what acts are deserving of respect, and so on.
In these circumstances the initial trunk of the tree
--the presently uncontroversial tie between courtesy
and respect--would act, in public argument as well as
private rumination, as a kind of plateau on which
further thought and argument are built. (LE, p. 70)
There is thus a conceptual relationship between respect
and courtesy. Respect can be seen as providing the
concept for courtesy, and different accounts of what
respect requires are conceptions of the basic concept:
The contrast between concept and conception is here a
contrast between levels of abstraction at which the
interpretation of the practice can be studied. At
the first level agreement collects around discrete
ideas that are uncontroversially employed in all
interpretations: at the second the controversy latent

in this abstraction is identified and taken up. (LE,
p. 71)

53

Law 5 n e
The somewhat detailed foregoing account of Dworkin's
notion of interpretation is a necessary prelude to his
development of law as integrity. If, as he maintains,
law is an interpretive concept, we must be clear about his
particular conception of interpretation before we can
reexamine 'the field. of jurisprudence from. a fresh
perspective:
Just as we understood the practice of courtesy better
at one stage in its career by finding general
agreement about the abstract proposition that
courtesy is a matter of respect, we might understand
law better if we could find a similar abstract
description of the point of law most legal theorists
accept so that their arguments take place on the
plateau it furnishes. (LE, pp. 92-93)
As might be expected, Dworkin believes he has such an
abstract description: "Our discussions about law by and
large assume, I suggest, that the most abstract and
fundamental point of legal practice is to guide and
constrain the power of government" (LE, p. 93). In short,
law determines when government is justified in using or
withholding coercive force. Collective coercive force, in
turn, is seen as justified only when it can be shown to
flow from past political decisions establishing individual
rights and responsibilities.
This abstract account of the concept of law admits of

several conceptions. These conceptions are distinguished

by their answer to three fundamental questions. The first

54

question asks whether the link between law and coercion is
justifiable. In other words, is there a "point" to the
linkage? If there is a "point," the second question asks
what that point is. The third question asks what notion
of consistency with past political decisions best serves
the justification of the linkage referred to in the first
question.

Dworkin maintains that the various schools of
jurisprudence have been distinguished in the past by
discriminations made by linguistic analysis. But these
classifications are misleading because law is an
interpretive concept. Using the model of law as
constructive interpretation, Dworkin thinks that new
classifications of schools of thought can be based on the
answers given to the questions cited earlier. These new
classifications are "conventionalism," "legal pragmatism,"
and "law as integrity." Although there are parallels
between these classifications and some of the traditional
schools of thought, it would be a mistake to assume that
the change in nomenclature disguises an identity
relationship. Traditional schools of thought were
distinguished by semantic claims, while Dworkin’s
classifications discriminate on the basis of interpretive
claims. It is likely, therefore, that no single self-

proclaimed positivist would cast himself as a

55

"conventionalist" in Dworkin's account, nor would a legal
realist necessarily consent to all that is implied by
"legal. pragmatism." Nevertheless, aspects of ‘the old
debates are illuminated by the new account.

But the more immediate concern of this paper is the
development of law as integrity and the account of
constitutional adjudication that this conception provides.
It is appropriate, therefore, to take a closer look at the
special way in which this third conception answers the
questions posed by Dworkin in the foregoing. Unlike legal
pragmatism but in conunon with conventionalism, law as
integrity provides an affirmative response to the first
question. But whereas conventionalism sees the point of
law's constraint in the predictability and procedural
fairness that this constraint provides, law as integrity
provides a much different response to the second question:

It supposes that law’ 8 constraints benefit society

not just by providing predictability and procedural

fairness, or in some other instrumental way, but by
securing a kind of equality among citizens that makes
their community more genuine and improves its moral
justification for exercising political power as it
does. (LE, pp. 95-96)
It will be recalled here that in AMP a more precise
formulation of "the kind of equality" required was
developed as "the liberal conception of equality." It was
argued in that second work that the justificatory force of

that conception was superior as an account of liberalism.

In contrast to the more restricted response of

56

conventionalism to the third question regarding the
requirements of consistency, law as integrity provides a
more flexible account:

It argues that rights and responsibilities flow from

past decisions and so count as legal, not just when

they are explicit in these decisions but also when
they follow from the principles of personal and
political morality the explicit decisions presuppose

by way of justification. (LE, p. 96)

In this connection it is helpful to remember that Dworkin
has previously argued that it is impossible for a judge
not to repair to extra-institutional norms when concrete
right claims are controversial. The answer a conception
gives to this third question about the requirements of
consistency will therefore determine the concrete legal
rights it recognizes.

At the level of adjudication, the acceptance of the
conception of law as integrity provides the following
guidance for judges:

The adjudicative principle of integrity instructs

judges to identify legal rights and duties, so far as

possible, on the assumption that they were all
created by a single author--the community
personified--expressing a coherent conception of

justice and fairness. (LE, p. 225)

This guidance is a statement of Dworkin's position about
the grounds of law:

We form our third conception of law, our third view

of what rights and duties flow from past political

decisions, by restating this instruction as a thesis
about the grounds of law. According to law as

integrity, propositions of law are true if they
figure in or follow from the principles of justice,

57

fairness, and procedural due process that provide the

best constructive interpretation of the community's

legal practice. (LE, p. 225)

With this latter move Dworkin satisfies the two
minimal conditions he has established for a political
theory of law:

A full political theory of law, then, includes at

least two main parts: it speaks to both the gpounds

of law--circumstances in which particular proposi-
tions of law should be taken to be sound or true--and
to the fopce of law--the relative power of any true
proposition of law to justify coercion in different

sorts of exceptional circumstance. (LE, p. 110)
Answers to the first and second questions speak to the
force of law in any political theory of law, while the
answer a particular conception of law provides for the
third question determines what it takes to be the grounds
of law.

Dworkin maintains that in the past philosophies of
law have been unbalanced insofar as they paid inordinate
attention to the grounds of law at the expense of
discussing rival conceptions of the force of law. In
reconceptualizing and reordering the distinguishing
features of the various interpretations of legal practice
via the three questions posed by the concept of law, some
hidden assumptions in these jurisprudential traditions are
exposed. Conventionalism, legal pragmatism, and law as
integrity all qualify as political theories of law under

Dworkin's schema; that is, they all provide answers to the

three questions posed by the concept of law.

58

But how are we to decide among these conceptions of
law? The answer to this question is found in the
conception of interpretation that has been defended. The
value of an interpretation, in this account, is how well
it fits and justifies what has gone before.

Before turning to the issue of how successful the
conception of law as integrity is an account of constitu-
tional adjudication, it may prove helpful to summarize our
progress thus far. The foundation of Dworkin’s theory of
rights was examined in TRS, and the taxonomy of rights
explained there showed how legal rights could be seen as a
distinct species of institutional rights, thus adumbrating
his fuller treatment of the grounds of law in LE. The
distinction drawn in that early work between arguments of
policy and arguments of principle as the two primary modes
of political justification shifted focus to the realm of
political theory in AMP. Cruder conceptions of the
concept of "intention" were rejected in that later work
and thus paved the way for the notion, developed in lib
that the concept of intention provides the formal
structure for all interpretive claims. AMP also
elaborated on the liberal conception of equality as
providing the justificatory force for an especially
powerful form of liberalism. This conception of equality

provided law as integrity with an answer to the first two

59

questions posed by the concept of law in LE. This latter
work united many of the themes found in TRS and AMP and
offered an account of interpretation that was foundational

to the development of law as integrity.

SECTION III

CONSTITUTIONAL ADJUDICATION

By way of introduction, it was observed that
constitutional adjudication provides the most public forum
for the great debates within the philosophy of law. This
is true because the articulated opinions of the Court
explain the rationale behind the decisions that are made.
Since the Court characteristically must decide "hard
cases," the interaction between conceptions of grounds and
force of law is illuminated. Academic lawyers and
political philosophers scrutinize the opinions of the
justices in order to ascertain the broad outlines of the
constitutional theories contained therein.

Having’ extrapolated. the salient elements of a
theory of rights from the development of Dworkin's
jurisprudence, the remaining task is to assess the
relative value of that theory for constitutional
adjudication. Law as integrity is the fruition of that
theory of rights and is, therefore, the conception of a
political theory of law that will be defended and

advanced.

60

61

Perhaps a good place to begin our inquiry is with the
institution of judicial review itself. After all,
constitutional adjudication would have a very different
character and status today had it not been for the
monumental decision of Marbury v. Madison at the dawn of
our political history. Surely no conception of a
political theory of law can count as an eligible
interpretation for constitutional adjudication unless it
is coherent with judicial review.

The Constitution limits the various branches of
government in different ways. This much is explicit. But
at the time of the landmark case under discussion, it was
unclear whether the Constitution required any particular
procedure for determining when those limits were
transgressed. One possible interpretation would have
given the power to make this determination to the branch
of government against which the transgression was claimed.
Officials within that branch, to be sure, would have had a
legal and moral obligation to obey the Constitution, but
such an interpretation would have made them their own
judges.

Justice Marshall, however, utilized the "supremacy
clause" of Article VI as well as the judicial structure
provisions of Article III to establish the precedent of
judicial review. The decision was controversial then, and

it is not impossible to find critics even today. Indeed,

62

if one accepts the view that there is a firm analytical
distinction between questions about what the law is and
questions about whether courts are justified in enforcing
the law, it is possible to make a case that the original
decision establishing judicial review was mistaken. But
law as integrity rejects the analytical distinction upon
which critics of judicial review build their case:

Law as integrity, on the contrary, supports

Marshall's argument. He was right to think that the

most plausible interpretation of the developing legal

practices of the young country . . . supposed that an
important part of the point of law was to supply

standards for the decision of the courts. (LE, p.

356)

So law as integrity provides a coherent account of
judicial review and remains an eligible conception that
can be utilized for constitutional adjudication.

Although law as integrity survives the first test,
there are several other prominent conceptions that pass
this initial threshold that we have established. All
accept the institution of judicial review (although in
more modern times the degree of this acceptance is perhaps
less wholehearted within some conceptions) but differ in
the degree of flexibility they will allow the Court in
exercising that review.

One such conception is "historicism." As a

constitutional theory it shares much with the

conventionalist theory of law outlined in Dworkin's

63

account. For that reason, as might be expected, it is not
unlike the positivist theories within traditional
jurisprudence. A distinguishing feature of historicism is
the following: "It identifies, for each clause, a
canonical moment of creation, and insists that what the
framers thought then, no matter how peculiar this might
seem now, exhausts the Constitution we have" (LE, p. 361).

But we have already noticed the serious limitations
of any conception of a political theory of law that
depends on a simple conscious-mental-state idea of
"intenticwn" Historicism, insofar as it reflects the
conventionalist position, can be dismissed as a viable
interpretation on the basis of its weakness in terms of
justificatory force; that is, it cannot adequately justify
what has gone before. Moreover, it does not even fit
current constitutional practice. The Court has extended
the protections against government outlined by the Bill of
Rights to the individual states via the "equal protection"
and "due process" clauses of the Fourteenth Amendment.
Given this fact, constitutional adjudication has outrun
historicism’s basic claim. That claim can no longer fit
what has gone before.

Another popular theory of constitutional adjudication
is "passivism": "We must understand passivism to declare
that as a matter of law the abstract clauses of the

Constitution grant citizens pp rights except concrete

64

rights that flow uncontroversially from the language of
these clauses alone" (LE, p. 371).

In essence, this theory is also not unlike the
conventionalist position in its insistence on a strict
account of when it is proper to say that rights "flow
from" past political decision. Passivism and its more
generic counterpart, conventionalism, both maintain that
rights must be "explicit" in past political decisions, or
at least made to be explicit by means of conventional
methods or techniques of legal practice.

Once again, however, we notice a serious limitation
in the passivist account. If rights must be explicit in
past political decisions, or at least made to be so
through conventional techniques, how should we adjudicate
a "hard case" in which conventions that we normally rely
upon have run out? After all, this is a not uncommon
feature of constitutional cases. The passivist maintains
that the judge in this kind of case is free to make new
law or, perhaps, "legislate interstitially between the
rules." But this is an inadequate account because it
undermines some of the values passivists usually espouse.
Only Congress and the legislatures are expressly granted
the power to legislate. There is no "explicit" right to
legislate reserved for the Court. The passivist is placed

in the position of denying the grounds of law he

65

initially asserts, unless he is prepared to say that his
"new law" opinion is not "really" law.

At first glance it might seem that judicial
"activism," or some form of it, may provide a better
interpretation of constitutional adjudication than either
historicism or passivism inasmuch as these latter
positions are generally associated with the position known
as judicial "restraint." But this is not the case. On
closer examination judicial activism can be seen as a
"virulent form" of legal pragmatism. As such it answers
the first question posed by the concept of law in the
negative; that is, it denies that the supposed link
between law and coercion is justified. It denies that
there is any point to requiring that force be used only in
ways conforming to rights and responsibilities that can be
seen to flow from past political decisions. It is almost
completely forward looking in that it allows judges to
make decisions which seem to them best for the future of
the community, although for practical political reasons it
may be prudent for them to act "as if" they were seeking
consistency with what has gone before:

An activist justice would ignore the Constitution' s

text, the history of its enactment, prior decisions

of the Supreme Court interpreting it, and long-
standing traditions of our political culture. He

would ignore all these in order to impose his own
view of what justice demands. (LE, p. 378)

66

Basically, legal pragmatism, and the constitutional
theory of activism that it informs, are skeptical
conceptions of law. But the Skeptic's position is not
unassailable because his practice undermines his
own position. If there is no point to the connection
between law and coercive force so that a judge may decide
what justice requires by repairing only to his own opinion
of the matter, then the skeptic denies that there is a
right answer that the litigants are entitled to in
adjudication. He may hold, in general, that all political
matters are matters of opinion and have no right answer.
He does, however, assume that there is a right answer to
the question of whose opinion should govern when the issue
at stake is only a matter of opinion.
As Dworkin observes:
The alternative to passivism is not a crude
activism harnessed only to a judge's sense of
justice, but a more fine-grained and discriminating
judgment, case by case, that gives place to many
political virtues but, unlike either activism or
passivism, gives tyranny to none. (LE, p. 378)
Although the foregoing constitutional positions are
not exhaustive nor would any one of them be likely to be
accepted in total by any jurist, their broad outlines do
serve to illuminate the deficiencies that a superior

interpretation of constitutional adjudication would have

to eliminate.

67

Law as integrity provides such an account. Unlike
conventionalism, law as integrity is not primarily
backward looking, and, unlike legal pragmatism, it is not
exclusively forward looking. It seeks to offer an account
of adjudication in the constitutional sphere that shows
our past legal practice in the best light while trying to
capture the "aspirational" nature of a constitutional
community:

. . . As in the Constitution’s history and text, an

aspirational dimension is present in the

Constitution’s logic. The remaining chapters of this

book show that by viewing constitutional problems in

light of a commitment to a constitutionally ideal

state of affairs, constitutional theory acquires a
coherence it cannot otherwise achieve. (Barber, 1984,

p. 34)

This "coherence," viewed as consistency in principle,
is an essential component of law as integrity: "But
conventionalism differs from law as integrity precisely
because the former rejects consistency in principle as a
source of legal rights. The latter accepts it" (LE,
p. 134). Law as integrity seeks consistency in principle
because it wants to express a single and comprehensive
vision of justice. It wants to reduce the number of
anomalies present in our legal practices, anomalies
defined against the vision of justice that is constantly
being interpreted in constitutional adjudication.

Law as integrity informs a theory of rights for

constitutional adjudication and insists on the primacy of

68

right-claims in qualifying the coercive use of power by
the government. Moreover, unlike other rival conceptions
of a political theory of law, law as integrity holds that
rights flow from past political decisions not just when
they are explicit in those decisions but when they can be
shown to follow from principles of political morality

which justify the decisions in the first place. This is a
1

far more encompassing notion of the role of rights in
constitutional adjudication than that provided by other
accounts. It is also consistent with another position in
constitutional analysis:

It is not analytically sound to consider the
organization of the federal government and its
relationship to the state governments before
considering the constitutional aspects of individual
liberty because constitutional questions concerning
the protection of individual liberty arise in all
constitutional cases. . . . So any analysis of the
cases involving the distribution of powers between
the states and federal government postpones the
fundamental inquiry contained in all such cases as to
whether either government has the power to engage in
the regulatory activity involved, or whether, on the
other hand, neither the state governments nor the
national government can regulate because such
regulation would interfere with individual liberty.
(Williams, 1979, pp. 35-36)

It would seem that the Constitution also takes rights
very seriously. They are logically prior to
considerations involving the structure of government
because law as integrity sees the existence of community
as a necessary condition for government. Governments

exist to secure and maintain the relationships that

69

characterize the community. The sense of community
espoused by the liberal conception of equality is one
characterized by the respect due each member of the
society as an active agent. This precludes coercion
except in circumstances where an agent's activity
threatens the ability of another member of society to act
as an agent. Those entrusted with the function of
"government" must therefore respect the ordering
principles of community that the society adopts.

The theory of rights being advocated for
constitutional adjudication also assumes that there are
right answers in hard cases. If this is true, then, at
least in principle, there should be a "correct"
constitutional theory, correct in the sense of providing a
process by which right answers can be arrived at. Law as
integrity presents itself as a program 9; interpretation,
whereas conventionalism and legal pragmatism present
themselves pg interpretations. In this respect the former
is more dynamic and flexible than the other two. It
recognizes that an interpretation is not a static report
of an uncontroversial proposition of law. It notices the
symbiotic relationship between the interpretive and
postinterpretive stages of interpretation. When a judge
makes a determination about the proper way to construe a
statute or constitutional provision, he is operating at

the postinterpretive stage of interpretation: that is, he

70

provides a rationale for what the statute or provision
"really" requires in light of the justification he has
provided at the interpretive stage of interpretation.
This in turn becomes his new interpretive sense on which
other postinterpretive judgments will be made. If, for
example, a judge must decide whether the equal protection
clause of the Fourteenth Amendment prohibits racially
segregated schools, he will examine the interpretive claim
that treating people as equals requires not depriving them
of an equal opportunity to better themselves. At the
postinterpretive stage of his interpretation, he may
determine that equality of opportunity "really" requires
that different educational opportunities should be
minimized. If this becomes the result of his
interpretation, it will henceforth act as the new
interpretive claim upon which a future postinterpretive
judgment will be based (perhaps he will be asked to
determine if quota systems in higher education are fair).
In any case, it is important to recognize:
The very decision to debate an interpretive judgment
presupposes the possibility of, and justifies the
quest for, the correct constitutional theory. Those
who make a thorough attempt to deny the possibility
of getting the meaning of the Constitution right will
eventually have to explain their own reliance on the
possibility of others correctly interpreting what
they want to say. (Barber, 1984, p. 37)

Given the limitations noticed in other constitutional

theories, it would seem that Dworkin's theory of rights

71

provides a superior interpretation of constitutional
adjudication. This is true not simply because it remains
after others have been discarded but for the positive
reasons just outlined. It offers a program Lf constant
interpretation rather than a static interpretation that
does not take into account the phenomenon of social growth
and understanding. Moreover, it recognizes the primacy of
rights in constitutional discourse because its Conception
of democracy is one that assumes a sense of community that
respects the agent capacity of each member of society.
Finally, the broader conception of a political theory of
law by which it is informed, law as integrity, is
profoundly aspirational and therefore constantly
challenges us as a people to refine our sense of justice.
In short, it succeeds along both dimensions of
interpretation. It both fits and justifies what has gone

before.

SECTION IV

POST-DWORKIN JURISPRUDENCE: FUTURE INQUIRY

IN THE PHILOSOPHY OF LAW

The development of Ronald Dworkin's philosophy of law
is not just a singularly important contribution to the
dialogue within that discipline. As suggested in the
introduction, it can be viewed as nothing short of a
complete rethinking of the frame of reference for that
dialogue.

This is especially the case when one examines the
issues raised in more traditional accounts of the problems
facing the philosophy of law. In this regard it will
prove helpful to review H. L. A. Hart’s analysis, which is
treated in the Encyclopedia of Phiiosophy (hereafter
referred to as EP). Here Hart identifies three
fundamental difficulties: problems of definition and
analysis, problems of legal reasoning, and problems of the
criticism of law.

Remnants of "the semantic sting" are evident in
Hart's treatment of the problems associated with the
definition of the law. After dismissing early attempts at

definition which involved identifying and/or describing

72

73

the "essence" of law and attempts which purported to
identify and describe the "standards" actually accepted
for various terms and expressions to count as instances of
legal discourse as hopelessly unrealistic, Hart observes,
Thus it is often asserted that in the case of law,
the area of indeterminacy of actual usage is too
great and relates to too many important and disputed
issues, and that what is needed is not a
characterization or elucidation of usage but a
reasoned case for the inclusion in or exclusion from
the scope of the expressions "law" and "legal system"
of various deviations from routine and undisputed
examples. (EP, p. 265)
Hart is correct in rejecting the possibility of lexical
definitions, but, relative to Dworkin's account, he has
not gone far enough. Noticing that theorists from the
"natural law" and "positivist" traditions utilize semantic
rules differently in their approaches to defining "law"
and simply concluding that this kind of definition poses
insurmountable difficulties misses the point. Any
definition which fails to account for the "indeterminacy"
of actual usage that Hart observes, including the more
limited types of "pragmatic" definitions he seems to
favor, will fail in its explanatory power because it is
precisely this "indeterminacy" that provides the clue for
the proper direction of the definitional endeavor.
Hart vaguely anticipates but does not fully
articulate the ramifications of this latter view when he

recognizes that "pragmatic" definitions, despite their

legitimacy and utility for dealing with practical issues

74

such as the delineation of areas of study, avoid rather
than resolve the fundamental theoretical complexities:

But reflection on what is thus identified by the

common usage of such terms shows that the area they

cover is one of great complexity; laws differ
radically both in content and in the ways in which
they are created, yet despite this heterogeneity they
are interrelated in various complex ways so as to
constitute a characteristic structure or system.

Many requests for the definition of law have been

stimulated by the desire to obtain a coherent view of

this structure and an understanding of the ways in
which elements apparently so diverse are unified.

(EP, p. 265)

Dworkin's stark assertion that law is an interpretive
concept provides for such a coherent view of this
structure. It recognizes that the "indeterminacy" of
legal concepts is intrinsic to the very process of
interpretation whereby purpose or meaning is imposed on a
practice in order to see it as the best example of an
assumed enterprise. The various legal concepts in
question operate as plateaus of generality or abstraction
defined by relatively uncontroversial instances of the '
enterprise. This makes discourse about legal matters
possible. Beyond these levels of generality and
abstraction, however, there is a realm of indeterminacy
which can only be resolved at the level of political
morality. Thus the "area of indeterminacy of actual
usage" that Hart refers to is not to be characterized as

an unfortunate and lamentable fact in the philosophy of

law but as an inescapable requisite for understanding the

75

nature of jurisprudential disputes. Parties to these
disputes should be seen as advancing and defending rival
interpretations or conceptions of a legal concept.
Insofar as this process is characterized by bounded
choice, that is, since it must fit and justify what has
gone before, "defining" the law is essentially an active,
creative, and dynamic endeavor, ever sensitive to the
experiences of the society doing the defining. This
contrasts with the more static characterization of the
definitional endeavor encouraged by the "semantic sting"
which seeks a relatively uncontroversial account of "what
counts" as law or what elements exhaust what can be
subsumed under that heading. In short, Hart’s account of
the problems associated with the definition of the law
fails to recognize how the intractability of
the "indeterminacy" issue illuminates a more enlightening
account of the definitional process itself when applied to
interpretive enterprises.

A second though related inadequacy of Hart's
treatment of the problems associated with the philosophy
of law is his failure to recognize the geptrai role of
political morality in providing an intelligible context
for core disputes in legal discourse. Beyond a nodding,
occasional reference to the fact that it is at least

sometimes the case that such disputes reflect divergent

76

conceptions of law in general, nowhere in Hart's account
do we find a full and satisfying explanation of the
implications of this phenomenon. It always seems to be at
the periphery of his discussion, whereas it is at the
center of Dworkin's account. The net result is that Hart
provides a listing of difficulties without an adequate
discussion of the context in which further inquiry can be
pursued. This is at least not very helpful and perhaps a
little distorting, for if Dworkin is correct, failure to
recognize or adequately discuss the role of political
morality in the philosophy of law is tantamount to a tacit
espousal of a particular political morality.

A good example of Hart's failure in this regard is
his discussion of the problems associated with the
analysis of legal concepts. After acknowledging that
legal rules can be classified in a number of different
ways, Hart maintains, correctly, that there are still a
number of identifiable common elements; moreover,
situations and relationships created by these rules are
constantly recurrent in social life. The existence of
these common elements, situations, and relationships makes
it possible for us to refer to them by utilizing a
vocabulary that expresses the organizing concepts. But
Hart notices that there are problems with this vocabulary:

These problems arise in part because this vocabulary

has a more or less established use apart from law,
and the points of convergence and divergence between

77

legal and nonlegal usage is not always immediately
obvious or easily explicable. It is also the case
that the ways in which common elements in law or
legal situations are classified by different
theorists in part reflect and derive from divergent
conceptions of law in general. (EP, p. 266)
It is important to notice here that Hart, once again,
fails to go far enough. He fails to provide us with an
account of why our vocabulary for these organizing
concepts is troublesome. It is not the case that our
choice of vocabulary was simply an unfortunate
development. “The choice of vocabulary was dictated by the
linkages to morality and political philosophy inherent
in our organizing concepts of legal discourse. The
vocabulary proves troublesome at times because it attempts
to accommodate a variety of competing interpretations at a
less abstract level than that of the "organizing concept."
It will be helpful to recall Dworkin’s tree analogy in his
account of interpretation (LE, pp. 70, 71) in this regard.
The "organizing concept" provides the uncontroversial
plateau on which future argument is based. It can be seen
as the trunk of the tree and represents the "common
elements" of various social practices that Hart alludes
to. Beyond this level, however, it will be controversial
and a matter of interpretation of what to subsume under
the rubric expressed by the "organizing concept." In

Dworkin’s example there will be sufficient community

agreement at some stage of its development that courtesy

78

is utilized as a sign of respect. The uncontroversially
common elements of instances of courtesy provide us with
an "organizing concept," i.e., respect. But what is to
count as an instance of respect is at a lower level of
abstraction and will, therefore, be more controversial.
Interpretations will "branch" away from the
uncontroversial "trunk." Similarly, our organizing legal
concepts derive from uncontroversial instances of
certain common and recurrent features that characterize
our social practices. There will be general agreement,
that is, on certain abstract propositions in legal
discourse, but when the consensus breaks down or when the
conventions run out, we are confronted with a problem of
interpretation that must, of necessity, repair to
political morality for resolution.

It is interesting to note Hart’s choice of words in
describing the problems associated with conceptual
analysis in the philosophy of law inasmuch as his choice
reflects an unwillingness to confront the basic issue. He
contrasts "legal" with "nonlegal" usage of the pertinent
vocabulary. Surely "nonlegal" is too broad and obfuscates
the intimate connection between legal and moral discourse.
In this he betrays a reluctance to concede the point that
although law and morality are not identical, neither are
they totally distinct. "Scientific" is arguably a species

of "nonlegal" vocabulary usage as much as "moral," yet it

79

seems unreasonable to say that the practices associated
with the former term are as proximate to "legal" usage as
are the practices associated with the latter term. But
Hart’s intention seems to be the isolation of "strictly"
legal usage, and so the choice of "nonlegal" rather than
"moral" in his treatment of usage serves to create an
artificial dichotomy that allows him to evade an
explanation of the central importance of political
morality to the conceptual analysis of legal discourse.

Moreover, when Hart says that the choice of
classifications for the observed "common" elements
reflects and derives, at least in part, from different
general conceptions of law, he provides no guidance as to
how these concepts are formulated. He is unwilling to
concede that they are formulated in the broader realm of
political morality and therefore, once again, rests
content with a purely descriptive account of the
phenomenon.

As might be expected, this failure to recognize the
central role of political morality in the conceptual
analysis of legal terms results in some confusing
examples. In analyzing the concept of "duty," Hart relies
on the distinction between viewing this concept from its
"predictive" and "normative" standpoints and observes that

this yields "apparently conflicting analyses."

80

Nevertheless, he seems content to retain the distinction
in the interest of separating the realms of law and
morality rather than rethink the terms of the distinction
to emphasize the common ground. In discussing the
advantages of the "predictive" standpoint, Hart says: "On
the one hand it has seemed to free the idea of legal duty
from metaphysical obscurities and irrelevant associations
with morals, and on the other to provide a realistic guide
to life under law" (EP, p. 266). But, as Dworkin argues
in TRS, repair to political morality in legal discourse
need not depend on "metaphysical obscurities." Indeed, he
showed in this early work how the central tenets of the
positivist position were inescapable, if not always
consciously articulated, results of a substantive
position in political morality.
Hart's account of the "normative" standpoint is also
flawed:
By contrast, the normative point of view, without
identifying moral and legal duty or insisting on any
common content, stresses certain common formal
features that both moral and legal duty possess in
virtue of their both being aspects of rule-guided
conduct. (EP, p. 266)
Although it is true that those who advocate what Hart
chooses to call the "normative" standpoint do not wish to

My moral and legal duty, it is not the case that

they would not insist on gpy common content.

81

Although Hart suggests that these two standpoints
must be "illuminatingly combined," he fails to see that
the distinction itself is a remnant of the "semantic
sting." It might prove more profitable to abandon it
altogether in favor of a more holistic political theory of
law with two interdependent parts--one speaking to the
ground of law (circumstances in which particular
propositions of law should be taken to be sound or true)
and one speaking to the force of law (the relative power
of any true proposition of law to justify coercion in
different sorts of exceptional circumstances) (see LE, pp.
110, 225). In this manner Dworkin reconciles what is
valuable in the standpoints given by Hart. The grounds of
law will provide a "realistic guide to life under law,"
and the force of law will affirm the justification for the
use of coercion in "rule-guided conduct" by appeal to
political morality.

Hart’s account of the problems of legal reasoning
does not reach the level of sophistication achieved by
Dworkin. The former expends a considerable amount of
energy in characterizing the salient issues here as
an ongoing debate about the role of logic in legal
reasoning. An exhaustive (and somewhat exhausting)
account is given of the place of deductive and inductive

reasoning in legal discourse. Not surprisingly, the

82

positions of those who criticize the role of logic in
adjudication are charitably explicated.

Only toward the end of his analysis does Hart fasten
on the issue that, for Dworkin, is the starting point of
substantive inquiry--the "no-right-answer" theory of
adjudication when the rules are indeterminate:

Yet however it may be in moral argument, in the law

it seems difficult to substantiate the claim that a

judge confronted with a set of conflicting

considerations must always assume that there is a

single uniquely correct resolution of the conflict

and attempt to demonstrate that he has discovered it.

(EP, p. 27)

Once again the futile attempt to disassociate the realm of
law from the realm of political morality is evident in
Hart’s account.

Dworkin adopts a different approach that asks us to
engage ourselves within the activity of legal discourse so
as to better characterize the nature of legal disagreement
in adjudication:

Certain legal concepts, like the concept of a valid

contract, of civil liability, and of a crime, have

the following characteristic: If the concept holds
in a particular situation, then judges have a duty,
at least prima figgie, to decide some legal claim one
way; but if the concept does not hold, then judges
have a duty, at least prima fagig, to decide the same
claim in the opposite way. I shall call such

concepts "dispositive" concepts. (AMP, p. 119)

The question now becomes a matter of how such dispositive
concepts figure in legal discourse. Dworkin goes on to

observe:

83

Lawyers seem to assume, in the way they talk and
argue, [wjhat we might call the "bivalent thesis"
about dispositive concepts: that is, that in every
case either the positive claim, that the case falls
under a dispositive concept, or the opposite claim,
that it does not, must be true even when it is
controversial which is true. (AMP, pp. 119-20)

Having appealed to the language of disagreement as it
is commonly described in legal discourse, we are now in a
better position to state more precisely the "no-right-
answer" thesis: that the bivalence thesis does not hold
for important dispositive concepts. But there are two
versions of the "no-right-answer" thesis which must be
considered in turn because each holds that the bivalence
thesis fails in a different way.

The first version asks us to discount the linguistic
behavior of lawyers and others within the context of legal
discourse because their pronouncements fail to take into
account that both propositions about the dispositive
concepts may be false. On this version, the bivalent
thesis makes no provision for a logical space between the
alternatives; in short, it ignores the possibility of a
third answer. Dworkin provides a helpful illustration
here to explain what is meant by this first version of the
"no-right-answer" thesis:

On this first version of the thesis, the question "Is

Tom’ s contract valid or invalid?" makes a mistake

like the one the question "Is Tom a young man or an

old man?" makes. The latter question may have no

right answer because it ignores a third possibility,
which is that Tom is a middle-aged man. (AMP, p. 121)

84

At first glance, it might seem that the bivalent
thesis is flawed, but on closer examination the first
version of the "no-right-answer" thesis has a more serious
problem:

It is a semantic claim, about the meaning of legal

concepts, and it would therefore be natural to

support the claim by some appeal to a linguistic
practice that is decisive. But since lawyers do seem
to treat "not valid" as the negation of "valid," "not

liable" as the negation of "liable," and "is not a

crime" as the negation of "is a crime," the argument

cannot take that natural course. (AMP, p. 123)

In short, the similarity of questions in the example is
denied.

The second version of the "no-right-answer" thesis,
though also rejecting the bivalent thesis, is more
complex. Essentially, it holds that the bivalent thesis
must fail because it ignores the possibility that either
proposition may not hold up. This account suggests that
there is a similarity in the questions "Is Tom's contract
valid or not valid?" and "Is Tom middle-aged or not?"
There may be no right answer to the latter question if Tom
is a "border" case: that is, it would be a mistake to
classify him as either middle-aged or not when the
parameters for inclusion in one of the classifications are
not clear and distinct.

Dworkin maintains that this version is also mistaken

but in a different way. Although he responds to various

formulations of the second version with long and complex

85

arguments, suffice it to say for the purposes of our
discussion regarding the problems facing the philosophy of
law, that he ultimately depends on an elaborate
distinction between "borderline" and "pivotal" cases.
This distinction argues that what is at stake in the
latter are the larger questions of constructive
interpretation. Since this is the case, even the way we
look at legal reasoning is affected by the political
morality we espouse.

When he turns to the problems associated with the
criticism of law, Hart remains adamant in his contention
that law, properly understood, can be considered in
isolation from the demands of political morality: "A
division between inquiries concerned with the analysis of
law and legal concepts and those concerned with the
criticism or evaluation of law seems not only possible but
necessary" (EP, p. 272). Yet after listing potential
objections to pure analysis, his replies to those same
objections fall wide of the mark:

None of the above seem to constitute serious

objections. The difficulties of decision in

particular cases arising from the relative
indeterminacy of legal rules are of great importance,
but they are distinct from analytical questions such
as those illustrated earlier, which remain to be
gngwered even when legal rules are clear. (EP, p.

In this account he neglects to notice that, in the absence

of the possibility of repair to political morality, he

86

has provided us with no guidance as to ppy_yg_ggp_pppgggg
with conceptual analysis. Moreover, and more importantly,
he has provided no convincing argument my we must
separate the questions he sees as distinct other than
stark assertion!

In summary, Hart's account of the problems of the
philosophy of law is seriously lacking. His treatment of
the problems surrounding the definition of law and the
analysis of legal concepts fails to explain adequately the
indeterminacy of legal discourse and is a remnant of what
Dworkin calls the semantic sting. His exposition of the
problems involved with legal reasoning is overly concerned
with the proper role of logic in adjudication and does not
address the more substantive issue of analyzing the
character of legal disagreement. Finally, he fails to
provide a standard of criticism for the law that does not
ultimately depend on a substantive political morality and
thus undermines his own assertion that questions of
analysis and questions of criticism can be properly
answered in isolation from each other.

We must conclude that the problems facing the
philosophy of law are more profitably discussed in the
schema provided by Dworkin.

To be sure, the account that Dworkin provides is not

without its difficulties, and it may prove profitable to

87

notice some of these in order to stimulate further
development of his position.

In the first place, more is needed to explain the
adequacy of his account relative to legal practice outside
of the Anglo-American tradition. More specifically, it
would be interesting to see how the liberal conception of
equality he advances as providing the best justificatory
force for the liberal political tradition might be
accommodated within socialist states. "Rights-talk" is
certainly not peculiar to capitalist societies.

A related area of inquiry ‘might be the applicability
of the notion of law as integrity to the field of
international law. How would community be defined among
nation-states, and how would interpretation function among
different traditions?

Although it is conceded that Dworkin's project has
been sufficiently ambitious in its present form, the claim
that law is an interpretive concept is a generic claim.‘
From the philosophical point of view, we are not
unjustified in examining any anomalies that may arise in
attempting to predicate his claim over a wider universe of
discourse.

Perhaps the most severe criticism of Dworkin's
philosophy of law is its excessive formalism. Although he
spends a great deal of time in TRS showing why his account

of rights does not exclusively depend on notions derived

88

from the natural-law tradition, it is interesting that his
new classification of jurisprudential traditions roughly
parallels the older classifications, with the exception of
natural law. We find a great deal of the positivist
tradition in the conventionalist interpretation and a
great deal of legal realism in the legal pragmatist
interpretation. Yet natural law as a traditional school
of thought has no counterpart in his new schema. There
are elements within law as integrity that resemble some
natural law positions, but Dworkin seems to hesitate to
acknowledge them.

There has been a great deal of new work in the area
of ethical rationalism that does not depend on mysterious
metaphysical entities. Concentrating on the generic
features of action, this tradition purports to demonstrate
the viability of a modified "naturalism" that could
provide some substance to Dworkin's formal claims.

Notwithstanding’ the aforesaid, Dworkin's political
and legal philosophy is an impressive intellectual
endeavor that will demand serious reflection on the part

of anyone who takes rights seriously.

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Dworkin, Ronald. Law’s Empire. Cambridge, Mass.: The
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. A Matter of Principle. Cambridge, Mass.:

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