Ronald Dworkin, RIP

I never met Ronald Dworkin, and I have not studied his work on legal philosophy carefully, but one essay that he wrote many years ago made a deep impression on me when I read it over 40 years ago as an undergraduate, and I still consider it just about the most profound discussion of law that I ever read. The essay, “Is Law a System of Rules?” (reprinted in The Philosophy of Law)  is a refutation of the philosophy of legal positivism, which holds that law is simply the command of a duly authorized sovereign law giver, an idea that was powerfully articulated by Thomas Hobbes and later by Jeremy Bentham.

Legal positivism was developed largely in reaction to theories of natural law, reflected in the work of legal philosophers like Hugo Grotius and Samuel Pufendorf, and in William Blackstone’s famous Commentaries on the Laws of England. The validity of law and the obligation to obey law were derived from the correspondence, even if only imperfect, of positive law to natural law. Blackstone’s Commentaries were largely a form of apologetics aimed at showing how well English law corresponded to the natural law. Jeremy Bentham would have none of this, calling “natural rights” (i.e., the rights derived from natural law) simple nonsense, and “natural and imprescriptible rights” nonsense on stilts.

Legal positivism was first given a systematic exposition by Bentham’s younger contemporary, John Austin, who described law as those commands of a sovereign for which one would be punished if one failed to obey them, the sovereign being he who is habitually obeyed. The twentieth century legal philosopher H. L. A. Hart further refined the doctrine in a definitive treatise, The Concept of Law, in which he argued that law must have a systematic and non-arbitrary structure. Laws are more than commands, but they remain disconnected from any moral principles. Law is not just a set of commands; it is a system of rules, but the rules have no necessary moral content.

As a Rhodes Scholar, Dworkin studied under Hart at Oxford, but he rejected Hart’s view of law. In his paper “Is Law a System of Rules?” Dworkin subjected legal positivism, in the sophisticated version (law as a system of rules) articulated by Hart, to a searching philosophical analysis. When I read Dworkin’s essay, I had already read Hayek’s great work, The Constitution of Liberty, and, while Hayek was visiting UCLA in the 1968-69 academic year, the first draft of his Law, Legislation and Liberty. In both of these works, Hayek had also criticized legal positivism, which he viewed as diametrically opposed to his cherished ideal of the rule of law as a necessary condition of liberty. But his criticism seemed to me not nearly as effective or as interesting as Dworkin’s. Despite disagreeing with Dworkin on a lot of issues, I have, ever since, admired Dworkin as a pre-eminent legal and political philosopher.

Dworkin’s main criticism of the theory that law is a system of rules was that the theory cannot account for the role played by legal principles in informing and guiding judges in deciding actual cases whose outcome is not obvious. Here is how Dworkin, in his essay, described the role of one such principle.

In 1889 a New York court, in the famous case of Riggs v. Palmer had to decide whether an heir named in the will of his grandfather could inherit under that will, even though he had murdered his grandfather to do so. The court began its reasoning with this admission: “It is quite true that statutes regulating the making, proof and effect of wills, and the devolution of property, if literally construed, and if their force and effect can in no way and under no circumstances be controlled or modified, give this property to the murderer.” But the court continued in to note that “all laws as well as all contracts may be controlled in their operation and effect by general, fundamental maxims of the common law. No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or acquire property by his own crime.” The murder did not receive his inheritance.

From here Dworkin went on to conduct a rigorous philosophical analysis of the way in which the principle that no one may profit from his own wrong could be understood within the conceptual framework of legal positivism that law is nothing more than a system of rules. In fact, Dworkin argued, rules cannot be applied in a vacuum, there must be principles and standards that provide judges with the resources by which to arrive at judicial decisions in cases where there is not an exact match between the given facts and an applicable rule, cases in which, in the terminology of legal positivism, judges must exercise discretion, as if discretion meant no more than freedom to reach an arbitrary unprincipled decision. Principles govern judicial decisions, but not in the same way that rules do. Rules are binary, on or off; principles are flexible, they have weight, their application requires judgment.

If we take baseball rules as a model, we find that rules of law, like the rule that a will is invalid unless signed by three witnesses, fit the model well. If the requirement of three witnesses is a valid legal rule, then it cannot be that a will has signed by only two witnesses and is valid. . . .

But this is not the way the sample principles in the quotations operated. Even those which look most like rules do not set out legal consequences that follow automatically when the conditions provided are met. We say that our law respects the principle that no man may profit from his own wrong, but we do not mean that the law never permits a man to profit from wrongs he commits. In fact, people most often profit, perfectly legally, from their legal wrongs. . . .

We do not treat these . . . counter-instances . . . as showing that the principle about profiting from one’s own wrongs is not a principle of our legal system, or that it is incomplete and needs qualifying exceptions. We not treat counter-instances as exceptions (at least not exceptions in the way in which a catcher’s dropping the third strike is an exception) because we could not hope to capture these counter-instances simply by a more extended statement of the principle. . . . Listing some of these might sharpen our sense of the principle’s weight, but it would not make for a more accurate or complete statement of the principle. . . .

All that is meant, when we way that a particular principle is a principle of our law, is that the principle is one which officials must take into account, if it is relevant, as a consideration inclining in one direction or another.

Just as an aside, I will observe that this passage and others in Dworkin’s essay make it clear that when Chief Justice Roberts appeared before the Senate Judiciary Committee in 2005 and stated that in his view the job of a judge is calling balls and strikes but not pitching or batting, he was using a distinctly inappropriate, and perhaps misleading, metaphor to describe what it is that a judge, especially an appellate judge, is called upon to do. See Dworkin’s essay on the Roberts hearing in the New York Review of Books.

Although I never met Dworkin, I did correspond with him on a few occasions, once many years ago and more recently exchanging emails with him about various issues — the last time when I sent him a link to this post commenting on the oral argument before the Supreme Court about the Affordable Health Care Act. His responses to me were always cordial and unfailingly polite; I now regret not having saved the letters and the emails. Here are links to obituaries in the New York Times, The Guardian and The Financial Times.

13 Responses to “Ronald Dworkin, RIP”

  1. 1 David R. Henderson February 14, 2013 at 7:37 pm

    Nicely done. I didn’t know any of this.

  2. 2 Greg Hill February 14, 2013 at 7:57 pm

    Well done. I’ve seen a lot of intellectuals on the News Hour (PBS), but Ronald Dworkin was the only one who gave me the impression that he was thinking deeply before he answered the interviewer’s question. His essay, “Equality of What?” opened up a lot of interesting questions about what egalitarians should care about.

  3. 3 David Glasner February 15, 2013 at 8:43 am

    David, Thanks, glad to be of service.

    Greg, Thanks. Where was that essay published?

  4. 4 Greg Ransom February 15, 2013 at 12:54 pm

    There is a lot of overlap between Hayek and Dworkin — Hayek’s understanding of the significance the English constitutional tradition and the writings of Burke and the Founders is in enriched by reading Dworkin.

    Hayek has a richer understanding of “rules” which overlaps in ways with what Dworkin talks of as “principle”, see in particular Hayek’s essays in his Studies and New Studies on rules, tradition and the “abstract”.

    I took a graduate course on Dworkin from a philosopher of law who’s written his dissertation at Berkeley on Dworkin and Rawls — I found Dworkin and the conservation of the seminar to be a repeated illustration of Hayek insights on the nature of unarticulated background rules and patterns with examples from judicial interpretation of law.

  5. 5 a.concerned.reader February 16, 2013 at 5:32 am


    You should stick to economics

    Law is a system of rules enforced by a sovereign

    Legal principles play no role in its formation.

    You cite, for example, Riggs v. Palmer, but wholly fail to talk about a far more important case, Dred Scott, where the court used the common sense proposition that blacks were inferior to obliterate any civil right of a black person in America, including the right to be a citizen

    How do you distinguish the common sense basis for the decision in Dred Scott from the common sense basis for the decision in Riggs. You cannot. There is no distinction. You just have personal preferences. Since history isn’t over, we still cannot say for sure whether the ruling in Dred Scott was right or wrong, save our personal bias. Slavery certainly was supported by the Bible and, if there is a Revelation, who knows what we will learn.

    The answer is there is no distinction, for neither is the reason why the Court ruled as they did. The courts ruled as they did because the judges decided on the result they wanted and they gave a rationale.

    Judges simply make up rationalizations for decisions based on personal bias.

    Courts opinions are nothing really but propaganda.

    Remember, there is no law. There is merely a prediction what a court will do if presented with the case.

    Thus, the grandson might not take under the will in Riggs, but the great grandchildren likely will

  6. 6 Philo February 16, 2013 at 9:57 am

    It seems that Dworkin was opposing an amoralist conception of law, in which case he needed to show that a society in which the law had no connection to morality was impossible (or perhaps very, very unlikely; of course, “no connection” is awfully vague, but it is hard to be more precise). This is not a task one would entrust to a mere philosopher; it requires too much theoretical knowledge of psychology and social/political science.

    Dworkin misdirected his fire by attacking legal positivism. Conceiving of law in the positivist manner does not necessarily deprive law of moral content, for the commands of the sovereign may include moral content (as they do in the English Common-Law tradition). Their having such content does not follow straightforwardly from the positivist definition, but the positivist might accept a further argument that some moral content is inevitable. But I do not see that Dworkin actually provided such an argument (let alone that he specified the connection to morality at all precisely).

  7. 7 Greg Hill February 17, 2013 at 1:20 pm

    David, “Equality of What?” was published in Philosophy & Public Affairs in two parts.

  8. 8 W. Peden February 18, 2013 at 10:35 am

    Norman Barry wrote a good article on the similarities and differences between Hayek’s philosophy of law and Dworkin’s. I think it was titled something like “Dworkin’s Unbounded Legalism”. As has been noted, both opposed positivism, but Dworkin had a very radical philosophy of law, similar to that of Godwin, whereas Hayek was obviously in the tradition of Burke and his philosophy of law was laced with the same 18th century Scottish scepticism as much of his economics and sociology. Thomas Sowell, in “A Conflict of Visions”, does a good job of outlining these different forms of anti-positivism in jurisprudence and their connections to more general epistemological positions.

  9. 9 Wonks Anonymous February 18, 2013 at 10:51 am

    The title is indeed “Dworkin’s Unbounded Legalism“.

  10. 10 David Glasner February 21, 2013 at 11:47 am

    Greg, Glad to see that we agree that, despite their political disagreements, Hayek and Dworkin shared a lot in common in their understanding of the law and how judges decide. And you are exactly right that, for Hayek, rules actually signify more than just the specific provisions of the law, but encompass the dispositions and moral principles that guide action and inform judicial decision making.

    a.concerned.reader, Dred Scott was wrongly decided, as Lincoln unanswerably demonstrated at the time of the decision, and it no longer carries any legal weight. Your assertion that there is no distinction between the decision in Riggs and the decision in Dred Scott is wildly anti-intellectual. Read Lincoln’s refutation of the Dred Scott decision and then tell me that there is no difference between Riggs and Dred Scott.

    Philo, I think that Dworkin was certainly using the Anglo-American common law system as a counterexample to the positivist notion that all that matters is the will of the sovereign. You can try to reconcile the two views by saying well in the common law system the sovereign has willed a legal system in which there are moral principles that must be taken into account. But that is a funny way of looking at a legal system that has not really been willed by anyone, but has grown in a piecemeal fashion over many centuries based on countless decisions by individual judges that somehow has come to have a reasonably coherent overall architecture and whose implementation can be reasonably well predicted.

    Greg, Thanks.

    W. Peden, Dworkin was a moderate liberal. I am not sure what was so radical about him.

    Wonks Anonymous, Thanks.

  11. 11 W. Peden February 21, 2013 at 2:46 pm

    David Glasner,

    It wasn’t his liberalism that was radical, but rather how much he believed that legal decisions should be based on pursuing social reforms. He’s at the extreme end of anti-positivism, taking a very strong stance in favour of the interconnection of morality and law. Hayek was less robustly so and in my opinion better.

  12. 12 David Glasner February 25, 2013 at 9:28 am

    W. Peden, I won’t argue this point with you, because I don’t know Dworkin’s work well enough. However, my impression is that the approach to judicial interpretation was not based on an explicit policy agenda, but on deep principles which he described as treating every individual with equality, respect and dignity. I don’t think that that it is an inherently radical approach to the law or legal interpretation.

  1. 1 Ronald Dworkin, RIP | Fifth Estate Trackback on February 15, 2013 at 10:45 am

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About Me

David Glasner
Washington, DC

I am an economist in the Washington DC area. My research and writing has been mostly on monetary economics and policy and the history of economics. In my book Free Banking and Monetary Reform, I argued for a non-Monetarist non-Keynesian approach to monetary policy, based on a theory of a competitive supply of money. Over the years, I have become increasingly impressed by the similarities between my approach and that of R. G. Hawtrey and hope to bring Hawtrey's unduly neglected contributions to the attention of a wider audience.

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