RONALD DWORKIN'S CONCEPT OF LAW IN LAW'S EMPIRE

Abstract

This dissertation aims to examine Dworkin's theory of law in Law's Empire. Although he admits that it is not a general jurisprudential theory, he claims to have identified an important problem which any general theory ought to examine - the problem of sense, which is the subject of Chapter 1. Dworkin's claim is that positivists cannot have genuine legal disagreements because they have a 'pedigree' theory of law. That is to say, positivists think a certain rule or a set of criteria can pick out a legal proposition X from all other kinds of propositions. This means, Dworkin thinks, that they cannot disagree on what the law is. Thus, he says, they have problems explaining what lawyers and judges think they are doing when arguing about law. I maintain that Dworkin is wrong, because the positivist' s pedigree thesis only commits him to saying that X is a law. It does not, however, commit him to saying that X means A. where A is any particular interpretation of the law. They can, therefore, disagree about the meaning of a law In Chapter 2, I shall probe this problem further by investigating Dworkin' s charge against the positivist's language. He claims this language, with its insistence that legal and moral claims be separated, is inflexible. In its stead, he recommends his own language, which he says is more flexible, because it accommodates both the claims that wicked laws are laws, and the claims that there are not. I argue that this flexible language is confusing because it does not tell us what it means for a person to assert or deny that a system has laws. In Chapter 3, I examine Dworkin's claim to be able to give a better account of adjudication that the positivist. Positivism, as spelled out by Hart, allows a judge some judicial discretion in making laws in controversial cases, where the existing laws are silent. Dworkin points out that in these cases, the legislative judge acts undemocratically and imposes laws retroactively. This problem would not arise, he says, once we see are other things in the system, called principles, which guarantees answers to every case. I show that there is no real difference between rules and principles. Further, Dworkin' s theory cannot exclude the theoretical possibility of gaps in the law and thus cannot sustain h.is claim that there are right answers in law. In the last chapter, I shall examine Dworkin's attempt to explain the notion of political legitimacy, as well as formulating a theory of the Anglo-American legal tradition, which he calls Law as Integrity. He says that the correct explanation of legitimacy lies in the fact that the government undertakes to treat all is citizens equally, and in their tum, they agree to participate in this process by obeying laws. I argue that his argument fails because his notion of equality is specious and a belief in the integrity of a legal system, no matter how strong, cannot ground political obligations.