Ronald Dworkin has based his theory of law on his on-going
critique of positivist theories of law, especially the theory developed by Hart
in “The Concept of Law
”, as Dworkin believed that Hart’s theory was the “ruling
theory of law”
. Over the years, however, Dworkin's theory has evolved in the
course of his response to critiques of his work or alternatively due to the fact
that positivists in response to his criticisms, adapted the theory of
From the 1960's onwards, this evolution of the anti-positivist
theory can arguably be said to have occurred in three phases. Although it is
possible to look at Dworkin’s theory in various ways, this particular note will
take the approach of understanding how these three phases of development in his
theory evolved and changed while enriching his interpretive theory all the time
focusing on his developing critiques on Hart’s work.
Ronald Dworkin’s theory of Law:
Ronald Dworkin was undoubtedly one of
the foremost legal thinker who moved away from the influence of legal positivism
which continued to be dominant even in its modified version in H.L.A Hart’s
legal philosophy. Dworkin extended support to legal philosophy of Kant’s
principles of morality and ethics. Human dignity which was central point of
Kant’s legal thinking found a prominent place in Dworkin’s writing and in his
major work Justice for Hedgrhogs (2011) he places human dignity as a hall-mark
of his legal philosophy. He mainly focused on dignity, responsibility and free
will in relation to freedom of speech, right to privacy and human rights.
Dworkin distinguished dignity from morality, in a very distinct manner
emphasing that morality is other-regarding (i.e., objective) whereas dignity is
self-regarding i.e., subjective. According to him, dignity implies individual
autonomy which every individual must be capable of enjoying the way one wants to
enjoy it. Generally speaking, dignity or dignified life implies living well.
Dworkin introduced 2 principles for living well, namely:
According to Dworkin, these two principles of dignity do triple duty.
- Self-respect which requires to take one’s life seriously; and
- Autonomy that requires taking responsible decisions about oneself for
successful in life.
- First, as a matter of personal ethics, they provide guidance about what
we should do in order to live well.
- Second, they elucidate the rights that individuals have against their
- And third, they account for the moral duties we owe to others.
The principles of dignity that Dworkin identifies might play a valuable role in
these first two domains. But in this Comment, I will raise some doubts about the
value of this “dignity framework” in the third domain, in explaining and
grounding interpersonal moral duties. Specifically, the principles of
self-respect and authenticity sometimes fail to justify the non-consequentialist
positions that Dworkin wishes to endorse.
Moreover, even when these principles
do plausibly entail moral duties of a particular scope, that scope is often
significantly weaker, or in some cases significantly stronger, than many non-consequentialists
would endorse. Through-out his writings on law and legal philosophy, Dworkin
emphasized on utilization of law and legal system for ensuring human dignity
which, according to him, is the foundation of all rights and liberties of people
in all societies for ensuring peace and progress of every individual in society.
At the outset, I would like to clarify that while discussing a particular norm
of law, the law per se is to be applied and, generally speaking, it is not the
function of the Courts to look into the moral basis of law. At the same time,
some legal norms, particularly those which are jurisprudentially expounded by
the Courts or developed as common law principles, would have moral backing
behind them. In that sense moral aspects of an issue may assume relevance. This
relevancy and rationale are quite evident in the discussion about euthanasia. In
fact, the very concept of dignity of life is substantially backed by moral
We may remind ourselves with the following classical words uttered
by Immanuel Kant:
“We must not expect a good constitution because those who make
it are moral men. Rather it is because of a good, constitution that we may
expect a society composed of moral men.”
Dworkin's original critique of Hart's model of rules in
"The Concept of Law" revolved around the role of 'rules and principles' in law
among other issues such as the role of customs as well as the problems of
judicial discretion and retrospection.
It is clear that Dworkin found Hart's
theory to be “under inclusive”. This is due to the fact that, as per Dworkin,
Hart fails to take into account concepts beyond rules and thus his “positivism
is a model of and for a system of rules, and its central notion of a single
fundamental test for law…forces us to miss the roles of...standards which are
not rules.” In other words, by limiting the scope of law to only rules that can
be identified by the rule of recognition, Hart fails to consider the role of the
existing body of customs (for example the royal assent and other prerogative
powers in the British legal system) in law, as well as concepts such as
'principles' that can influence judicial decision making.
While rejecting Hart’s
‘ruling theory of law’, Dworkin also rejects the reasoning of Natural Law
theorists that there are predetermined, absolute and metaphysical moral
principles which determine the moral standards upon which the validity of all
human laws are based. He is also opposed to the view that there is necessarily a
close link between justice and the law which Natural Law advocates.
rejects such a proposition based on the concept that the fact of law is such
that its validity must not be derived from the justice it can deliver or the
injustice. It is therefore possible to observe that Dworkin’s place in
jurisprudence is one where he is neither a natural lawyer, nor is it possible to
say he is a legal positivist as he theoretically rejects some of the most common
and basic views of Natural Law theories while also being very critical about the
positivists. His theory thus provides students of jurisprudence a theoretical
forum for a middle ground between the two theories.
In conclusion, over the years, Dworkin's initial critique of positivism has been
modified (almost beyond recognition) and has changed a great deal. However, the
greatest change has occurred due to his adoption of the "utilization of law"
ensuring human dignity as this phase of the theory has proved to be completely
different from the first two phases in that Dworkin has inadvertently accepted a
great deal of positivism in his critique of positivism, thus (in part) defying
the purpose of this critique.
However, the theories he has formulated are no
less important in the study of jurisprudence even if they have ultimately not
been as helpful to Dworkin in criticizing positivism as one would expect. This
is so because his approach involves a more mixed approach to legal theory.
Neither major school of Jurisprudence (Natural Law and Positivism) is completely
correct. Nor are these schools completely incorrect, and in effect, it is
possible to try to reject some parts of the theories while blending other parts
to have a more holistic approach in jurisprudence itself.