Law’s Empire Ronald Dworkin Hart vs. Dworkin - Hart o Law as social facto No necessary moral content of law o Jurisprudence = analytical o Legal reasoning involves applying shared criteria for legal value - Dworkin o Law as moral judgment about social facts o Law carrying integrity o Jurisprudence = general part of adjudication o Legal reasoning is a special form of moral reasoning - Jurisprudence is often divided into “normative juri” and “analytical” juri. o Some think that such distinction is misleading because they are intertwined. Dworkin’s Critique of Hart: Rules and Principles- Dworkin started by critiquing Hart, but then moved to develop own theory. - So must first understand Dworkin’s criticism of Hart. - Dworkin takes issue with Hart’s insistence that law develops entirely in reference to rule of recognition, and by way of Riggs v. Palmer (if we understand the “rule” of testaments”to be the “principle” that acts of legislature (in this case regarding wills) tells us that law develops in relation to legal principles which are different from rules in 3 ways. o Rules apply in all or nothing fashion, if rule applies, must decide that way.  Principles guide decisions but don’t give conclusive reason. o Valid rules cannot conflict and conflict must be remedied, valid principles can conflict. o Because can conflict, principles have dimension of weight that rules do not have. Principles and Positivism - Hart is simply speaking of the necessary features of law, but does not deny possibility of continent sources of indeterminacy that may or may not be present in a particular legal system. - Attack on positivism only comes when Dworkin tells us how legal principles are identified as part of law- not by rule of recognition. - Principles may exist without any court having vocalized them. - Thus, we must engage in moral/political discussion of what principles should be invoked to justify black letter rules of law.- Positivist Response: Principles are identifiable by some form of rule of recognition, and principles are not a part of law because they are just morals. - Principles are identifiable by some form of rule of recognition. o Judges disagree about what the law is  Ex: Riggs v. Palmer - If law is rule-based, there can be no meaningful disagreement about the content of the law. o Legal positivism cannot incorporate moral principles into law because morality is essentially contestable.  Rule of Recognition cannot pick out moral principles because the rule of recognition only exists if there is convergent behavior among officials. - Principles not part of law because just morals o If principles not part of law then rules are not binding. o Positivist must think Riggs v. Palmer was wrongly decided or that judges can change rule where they conflict with what judges think is best so not bound by rules at all and legal positivism collapses into ‘rule skepticism’ The Rule of Recognition and the Soundest Theory - Dworkin says not all moral principles are legal principles. - So some argue that Dworkin himself needs a rule of recognition to decide what are legal and what are non-legal principles. o Dworkin responds by pointing out that Hart’s rule of recognition identifies rules by source of enactment, not content, but legal principles are not identified by source of enactment, but by showing they are embedded in established rules and decisions. - Hercules, the ideal judge, who, when deciding a Hard case, will need to find some theory/principles to underpin legal rule. o Thus criterion that distinguishes legal from non-legal principle is that legal principle is part of “soundest theory of law” that can be offered as justification for established legal rules and institutions in a particular jurisdiction. o Hercules (unlike officials in Rules of Recognition) does not seek to apply theory accepted by other judges, but the ‘soundest’ theory - Responses to Dworkin’s early Challenge o However, still not clear that Dworkin’s attack is inconsistent with Hart’s theory because Hart leaves open the content of RoR, doesn’t claim that RoR identifies rules only by source or nonmoral factors, himself points out that in places like US Constitution principles of justice or substantive moral values are part of ultimate criteria of validity.  Dworkin’s response: wrote “Law’s Empire” Constructive Interpretation- Dworkin says legal theory (normative) inseparable from intellectual activity (analytical)and will offer us prescriptive guidance rather than “clarifying” our “concepts” - For Dworkin legal theorists = exercise of what Hercules does o Interpreting practices - This is done by answering how practice should be followed and applied, questions thatarise for participants (so we must take standpoint of participant not external observer). o “The interpreter (whether a judge or a legal theorist) must ‘join the practice heproposes to understand.’” - Key to Dworkin’s Constructive Interpretation of legal practice is the conception of Law asIntegrity. o Law as integrity holds a vision for judges which states that as far as possiblejudges should identify legal rights and duties on the assumption that they wereall created by the community as an entity, and that they express the community’sconception of justice and fairness. - According to law as integrity, proposition of law are true if they figure in or follow fromthe principles of justice, fairness and procedural due process, which provide the bestconstructive interpretation of the community’s legal practice. - Law as integrity states that the law must speak with one voice, so judges must assumethat the law is structured on coherent principles about justice, fairness, and proceduraldue process, and that in all fresh cases which comes before them, judges must enforcethese so as to make each person’s situation fair and just by the same standard- that is tosay, treat everyone equally. - Integrity is both a legislative and an adjudicative principle. o Legislative principle requires lawmakers to try to make the laws morallycoherent. Lawmakers are required to ask the assumption that integrity is a distinctideals of politics, for politics, and honors politics. - If it fits these dimensions, the adjudicative principles is ready tobegin. - Central to Dworkin’s project that to develop a theory of adjudication it is necessary toengage in a constructive