You can think of this paper as analogous to the first selection from Hart that you read: Dworkin sets out some issues and then explains and criticizes Hart’s position on them (in much the way Hart explained and criticized Austin’s). And, as he does this, he introduces some ideas that will play a central role in his own positive view, which he will develop in a selection from his book Law’s Empire that we will read later. The first part of Culver’s introduction to this section of his anthology (pp. 179-182) is an introduction to this paper.

I’ve also assigned the judicial decision Riggs v. Palmer. This is a case Dworkin will refer to, so you can regard this part of the assignment as a supplement to Dworkin. You might either read the decision first to have it mind when you read Dworkin or wait and read it after you have seen what he has to say about it (on pp. 192-193).

• You can think of the “nominalists” Dworkin discusses in §1 as the American legal realists. The term “nominalist” might be surprising in this context since it derives from a label for a medieval philosophical school whose opponents were called “realists”; however, from the point of view of philosophical terminology, Dworkin’s label is better than the usual one since the sort of general philosophical position occupied by the American legal realists runs counter to the kind of philosophical position for which philosophers tend to use the term “realism.” In the selection from Law’s Empire, Dworkin will use the term “pragmatists” for the American legal realists; and that’s an even better label because, in its philosophical sense, “pragmatism” refers to an American philosophical movement contemporary with and closely related to the views of people like Holmes.

• §2 is Dworkin’s presentation of positivism in forms given to it by both Austin and Hart. Part of the value of Dworkin’s account of their views is his departure from the terms they themselves use, so be sure to think about what features of Hart’s views Dworkin is referring to at each point—it may not always be obvious.

• The key distinction in § 3 is between principles “in the generic sense” and rules. The distinction, among principles in the generic sense, between principles (in the narrow sense described on p. 192) on the one hand and policies on the other is largely ignored in the rest of this paper. However, it is important for his own view of the law, and it will reappear in the selection from Law’s Empire.