Phi 213 Sp12

Reading guide for Wed. 2/15: Ronald Dworkin, “The Model of Rules,” The University of Chicago Law Review, vol. 35 (1967), §§I-III (on JSTOR at 1598947, pp. 14-29)
 

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. What we will discuss this time is preliminary to Dworkin’s criticism of Hart, but it introduces one idea, the distinction between rules and principles, that will be central to his own view.

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.

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).