Ronald Dworkin (1931-) is an American who was educated at Harvard and Oxford and, after teaching for a time at Yale, succeeded H. L. A. Hart as Professor of Jurisprudence at Oxford. He currently teaches at New York University.
You can think of this paper as analogous to the first parts of The Concept of Law: 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 the second paper we will read. The most important of these appear in §§III and V.
• You can think of the “nominalists” Dworkin discusses in §I 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.” Dworkin later used the term “pragmatists” for the American legal realists; and, as I noted when we discussed Holmes, that’s an even more accurate label.
• §II 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 §III 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. 23) 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 “Hard Cases,” the paper of Dworkin’s that we will start discussing next week.
• Section IV lays out the issue on which Dworkin’s criticisms of Hart (and of positivism generally) will center. Even before you go on to consider Dworkin’s arguments against Hart, think whether you would choose option (a) or (b) (see pp. 29f).
• Section V is the heart of Dworkin’s argument against positivists in general and Hart in particular, and it will occupy the bulk of our time. It can be divided into four parts, with each of the first three providing a key element of the argument.
• Dworkin’s distinction among three sorts of discretion (pp. 32-35) serves to define what is at issue between him and the positivists. Get a good sense of the differences among the three senses using both his examples and his descriptive comments about them. Think back to ch. 7, §3 of Hart’s book; Dworkin is working with some of the same ideas. (His reference to Hart on p. 35 appears at the beginning of ch. 7 §4 of The Concept of Law, on p. 147 in the second edition.)
• Dworkin next presents and replies to three arguments positivists might offer for their position (pp. 35-37). Choose the argument you take to be the strongest and get clear about the way Dworkin tries to get around it.
• Dworkin offers one positive argument for his own position (pp. 37-39). Read it carefully both to evaluate it and to get a better sense of the position he holds.
• The last part of the section (pp. 39f) is not part of the argument itself but provides an important supplement to it: Dworkin attempts to explain why, if the positivists’ position is false, anyone would have been inclined to adopt it.
• In §VI, Dworkin asks whether a positivist like Hart could accept principles as binding while remaining a positivist. Three steps in Dworkin’s negative answer are distinguished below; think how you would state each of these steps in your own words.
• Dworkin first argues (pp. 40-42) that there could be nothing that would do for principles what Hart’s rules of recognition do for the rules that are found in legislation and precedent.
• Next (pp. 42-44) he considers Hart’s treatment of customary law as another possible route for incorporating principles and argues that doing so would undercut Hart’s structure of primary and secondary rules.
• A final option is to replace the rule of recognition by principles that are in force, but Dworkin argues (pp. 44f) that this would be to give up on legal positivism.
Dworkin’s concluding comments about the positivists’ theory of legal obligation point to the way he develops his own theory of the law. His comment here about what “we might want to say” (p. 45) is a fair description of what he will say in “Hard Cases.”
Dworkin will refer to several legal cases, most notably Riggs v. Palmer. If you are curious about the details of these decisions, it is pretty easy to search for them in the LEXIS-NEXIS database. You can find links to that on the library website. For example, if you go to the “Federal & State Cases” page of the “US Legal” section of LEXIS-NEXIS, you will be able to search by the name of the case. When you get to it (the date will help you pick the right one of the search results), you will find the page numbers Dworkin cites in square brackets in the text on LEXIS-NEXIS preceded by one or two asterisks (he will give you two different page numbers referring to different sources, and the page breaks are different so using both can help in locating things).