| Phi 213 Spring 2016 |
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Ronald Dworkin (1931-2013) was 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.
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.