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Also among the Prophets: Some Rejoinders to Ronald Dworkin’s Attacks on Legal Positivism

MATTHEW H. KRAMER

in In Defense of Legal Positivism: Law Without Trimmings

This chapter responds to Ronald Dworkin’s numerous criticisms of H. L. A. Hart’s legal positivism. It first lengthily challenges Dworkin’s model of adjudication and law-ascertainment, and then repels ... More

This chapter responds to Ronald Dworkin’s numerous criticisms of H. L. A. Hart’s legal positivism. It first lengthily challenges Dworkin’s model of adjudication and law-ascertainment, and then repels his efforts to establish necessary connections between law and morality. His efforts, like those of Detmold (examined in Chapter 5), have run together the distinct dimensions of morality.Less

Social Justice and Environmental Goods 1

David Miller

in Fairness and Futurity: Essays on Environmental Sustainability and Social Justice

David Miller grapples with the sustainability question in the context of liberal theories of justice. He believes that environmental goods are as appropriately related to theories of justice as any ... More

David Miller grapples with the sustainability question in the context of liberal theories of justice. He believes that environmental goods are as appropriately related to theories of justice as any other type of good, but that no systematic attempt has been made to do so. He reaches this conclusion after examining the work of Ronald Dworkin and John Rawls. Miller argues that some environmental goods can be regarded as Rawlsian primary goods, and that others may possess sufficiently universal value to present few problems of justice. Where conflicts do occur, Miller suggests that a modified form of cost‐benefit analysis can be used to resolve disputes.Less

Two Views of the Nature of the Theory of Law: A Partial Comparison 1

Joseph Raz

in Between Authority and Interpretation: On the Theory of Law and Practical Reason

This chapter considers the theses of Ronald Dworkin and HLA Hart. It explains (1) why Dworkin was wrong to think that Hart and others were concerned with the meaning of the word ‘law’; (2) why ... More

This chapter considers the theses of Ronald Dworkin and HLA Hart. It explains (1) why Dworkin was wrong to think that Hart and others were concerned with the meaning of the word ‘law’; (2) why nevertheless if the semantic sting is a good argument against explanations of the meaning of the word ‘law’ it is also a good argument against any explanation of the concept of law, including that which Hart provides; and (3) why it is a bad argument. It then explains some mistakes that may have led Dworkin to endorse his third thesis about the nature of legal philosophy, namely the thesis that jurisprudence is a silent prologue to any legal decision.Less

The Province of Jurisprudence Moralized

Allan C. Hutchinson

in The Province of Jurisprudence Democratized

This chapter explores the sophisticated and controversial work of Ronald Dworkin. After introducing his basic ideas, it looks at how he manages to capture both the best and worst of this ... More

This chapter explores the sophisticated and controversial work of Ronald Dworkin. After introducing his basic ideas, it looks at how he manages to capture both the best and worst of this anti-positivist approach and its connection to a more democratized rendition of jurisprudence.Less

On the Currency of Egalitarian Justice

G. A. Cohen

Michael Otsuka (ed.)

in On the Currency of Egalitarian Justice, and Other Essays in Political Philosophy

This chapter examines answers to the question posed by Amartya Sen in his Tanner Lecture of 1979 called “Equality of What?” Sen asked what metric egalitarians should use to establish the extent to ... More

This chapter examines answers to the question posed by Amartya Sen in his Tanner Lecture of 1979 called “Equality of What?” Sen asked what metric egalitarians should use to establish the extent to which their ideal is realized in a given society. What aspect(s) of a person's condition should count in a fundamental way for egalitarians, and not merely as cause of or evidence of or proxy for what they regard as fundamental? The chapter also advances the Cohen's own answer to Sen's question. This answer is the product of an immanent critique of Ronald Dworkin, one that rejects Dworkin's declared position because it is not congruent with its own underlying motivation.Less

The Market’s Place and Scope in Contemporary Egalitarian Political Theory

Debra Satz

in Why Some Things Should Not Be for Sale: The Moral Limits of Markets

This chapter examines two prominent but divergent contemporary views about the relationship between markets and equality. On the first view, while markets have an important role to play in society, ... More

This chapter examines two prominent but divergent contemporary views about the relationship between markets and equality. On the first view, while markets have an important role to play in society, egalitarians should seek to rectify the distributional inequalities that markets create by using a tax and transfer system. On the second view, egalitarianism requires equality in certain specific goods. The strengths and weaknesses of each view are shown and lay the groundwork for the author’s own theory of how markets relate to equality.Less

Individual Rights and Collective Interests: Dworkin on ‘Equal Concern and Respect’

Robert P. George

in Making Men Moral: Civil Liberties and Public Morality

This chapter criticizes the liberal view of placing more importance on individual rights at the expense of the collective interest of the community. The chapter focuses on Ronald Dworkin's arguments ... More

This chapter criticizes the liberal view of placing more importance on individual rights at the expense of the collective interest of the community. The chapter focuses on Ronald Dworkin's arguments against government regulation of morals. According to Dworkin, individual rights should prevail over government initiated laws promoting the collective good because such laws violate every person's right to equality. The chapter disproves Dworkin's antagonistic view of the relationship between collective good and a person's equality by arguing that laws promoting the collective good protect human equality and dignity by preventing a person's actions that may cause him to lose his dignity.Less

Expensive Taste Rides Again

G. A. Cohen

Michael Otsuka (ed.)

in On the Currency of Egalitarian Justice, and Other Essays in Political Philosophy

This chapter is a reply to “Equality and Capability,” in which Ronald Dworkin responded to some of the criticisms of his work that the Cohen made in “On the Currency of Egalitarian Justice.” It ... More

This chapter is a reply to “Equality and Capability,” in which Ronald Dworkin responded to some of the criticisms of his work that the Cohen made in “On the Currency of Egalitarian Justice.” It begins by distinguishing two broad criticisms of equality of welfare that Dworkin has developed, one surrounding the indeterminacy of the concept of welfare and one surrounding the problem of expensive taste. It then explains what the phrase “expensive taste” means within the present debate. The remainder of the chapter discusses brute taste, that is, taste that is not guided by judgment; refutes the principal argument that Dworkin deploys against compensation for expensive judgmental taste; explains why the dispute about expensive taste matters; and offers a fragment of a taxonomy that distinguishes contrasting degrees of control that people display over the acquisition and the persistence of their tastes.Less

Objectivity, Morality, and Adjudication *

BRIAN LEITER

in Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy

This chapter considers the views of two philosophers — Ronald Dworkin and John McDowell — who repudiate the premise of the location problem, namely, that causal efficacy is always the mark of the ... More

This chapter considers the views of two philosophers — Ronald Dworkin and John McDowell — who repudiate the premise of the location problem, namely, that causal efficacy is always the mark of the real. From the standpoint of legal philosophy, Dworkin's response is particularly significant, since his theory of law and adjudication makes a party's legal rights turn on the answer to moral questions: if those answers are not ‘objective’, then Dworkin's theory is a license for extraordinary judicial discretion. It shows that Dworkin has no good arguments against taking the location problem seriously, and that his and McDowell's alternative account of the objectivity of morality is both empty and entails counter-intuitive conclusions.Less

The Concept of Overall Freedom

Ian Carter

in A Measure of Freedom

Some authors, such as Felix Oppenheim, Will Kymlicka and Ronald Dworkin, have claimed that the notion of degrees of freedom makes no sense, or in any case plays no part in a liberal theory of ... More

Some authors, such as Felix Oppenheim, Will Kymlicka and Ronald Dworkin, have claimed that the notion of degrees of freedom makes no sense, or in any case plays no part in a liberal theory of justice. Their various arguments can be classed as ontological, epistemological and normative, given that they aim to show, respectively, that there is no such thing as overall freedom, that overall freedom cannot be measured, and that overall has no normative importance. For these authors the freedom of a person to do a specific thing is the only kind of freedom that exists, or the only kind that we can know about, or the only kind that matters. In answer to the ontological objection, it can be shown that there is such a thing as overall freedom if there is such a thing as specific freedoms, given that one can quantify over each of the elements of the triadic relation in which a specific freedom consists (agents, constraints, actions). The normative objection is answered in chapters 2 and 3, and the epistemological objection in chapters 7-9.Less

The Nightmare and the Noble Dream

Nicola Lacey

in A Life of H.L.A. Hart: The Nightmare and the Noble Dream

This chapter focuses on H. L. A. Hart's views about Ronald Dworkin. In ‘The Nightmare and the Noble Dream’ lecture, published in the Georgia Law Review in 1977, Hart sketched a bold map of the ... More

This chapter focuses on H. L. A. Hart's views about Ronald Dworkin. In ‘The Nightmare and the Noble Dream’ lecture, published in the Georgia Law Review in 1977, Hart sketched a bold map of the American 20th-century jurisprudential scene. American legal theory was, he argued, focussed on adjudication because it was organized around the need to justify the power of judges to strike down democratically validated legislation on constitutional grounds. American legal theorists have reacted to this distinctive constitutional situation, he suggested, in one of two ways: the ‘nightmare’ of total indeterminacy and unconstrained judicial discretion and the ‘noble dream’ of complete legal determinacy. The ‘nightmare’, represented by the Realist jurisprudence of the early part of the 20th century indulges in scepticism about whether judges are bound by law at all in either complex constitutional cases or more generally. By contrast, the American ‘noble dream’ is particularistic and holistic: it finds reasons constraining judges' discretion within the resources of particular legal systems, and it sees law as consisting in more than merely rules, asserting that even when appearances are to the contrary, judges are in fact finding and declaring rather than making law.Less

The Central Problem of Liberal Constitutional Theory

Robert Song

in Christianity and Liberal Society

This chapter examines the key problem in liberal constitutional theory. It attempts to develop some theological understanding of the issues of constitutional and political theory connected with the ... More

This chapter examines the key problem in liberal constitutional theory. It attempts to develop some theological understanding of the issues of constitutional and political theory connected with the judicial review of legislation, with special reference to the introduction of a Bill of Rights into British domestic law. It discusses Ronald Dworkin's defence of judicial review and John Finnis' criticism on Dworkin's position. This chapter also aims to produce a general theological account of the relation of the legislature and the judiciary.Less

Liberal Principles of Human Rights Interpretation

George Letsas

in A Theory of Interpretation of the European Convention on Human Rights

This chapter looks at the work of John Rawls and Ronald Dworkin with a view to explain the idea that states can justifiably interfere with ECHR rights under the relevant limitation clauses of ... More

This chapter looks at the work of John Rawls and Ronald Dworkin with a view to explain the idea that states can justifiably interfere with ECHR rights under the relevant limitation clauses of articles 8-11 ECHR. Particular emphasis is placed on the distinction between reason-blocking and interest-based theories of rights. It is argued that the ECHR does not create abstract entitlements that certain individual interests be protected up to a certain degree. It is misleading to think of justiciable human rights as rights to particular interests. Rather, we have rights not to be deprived of some liberty or opportunity on the basis of certain impermissible considerations. Rights thus understood are absolute and subject to no ‘balancing’ exercise: it can never become justified for the government to restrict someone's liberty on the impermissible considerations that rights rule out.Less

‘Mistakes of Law’ and Legal Reasoning: Interpreting Kleinwort Benson v Lincoln City Council

Aruna Nair

in Philosophical Foundations of the Law of Unjust Enrichment

The chapter considers the implications of the decision of the House of Lords in Kleinwort Benson v Lincoln City Council for an understanding of the nature of legal reasoning. It also considers the ... More

The chapter considers the implications of the decision of the House of Lords in Kleinwort Benson v Lincoln City Council for an understanding of the nature of legal reasoning. It also considers the implications of alternative models of legal reasoning for the substantive law relating to the recovery of benefits conferred under the influence of ‘mistakes of law’. In Kleinwort Benson, the House of Lords decided that a bank that had paid money to a local authority in reliance on a ‘settled interpretation of the law’, departed from by a later judicial decision, had made a mistake of law. They held that this mistake qualified as an ‘unjust factor’ entitling the bank to recover the money. It is argued, first, that Ronald Dworkin's explanation of the nature of legal reasoning cannot provide a plausible account of the facts of the case or of the response of the judges to those facts. It is claimed that this demonstrates the limitations of an analysis of legal reasoning that treats it as an individualistic process of moral reasoning; such an analysis cannot make sense of the way in which English law is experienced by those affected by it, as constrained, structured, and altered by a hierarchical system of authoritative decision-making. Secondly, it is argued that, if Dworkin's model of legal reasoning were applied in the context of the substantive law of unjust enrichment, unacceptable conclusions would follow. These can be avoided if a positivist account of law were accepted instead.Less

The Principal Questions of Constitutional Interpretation

Sotirios A. Barber and James E. Fleming

in Constitutional Interpretation: The Basic Questions

This chapter takes up the principal questions of constitutional interpretation and the assumptions underlying the enterprise of constitutional interpretation by considering William Rehnquist's ... More

This chapter takes up the principal questions of constitutional interpretation and the assumptions underlying the enterprise of constitutional interpretation by considering William Rehnquist's classic criticism of the notion of a “living constitution” and defense of a narrow originalism. It argues that fidelity to the Constitution as written — understood as a scheme of abstract moral principles or concepts like fairness rather than as a code of concrete historical conceptions of those concepts — requires what Ronald Dworkin has called a “fusion” of constitutional law and moral philosophy. Such a philosophic approach would require “judicial activism”, not “judicial deference”. It also would, as Dworkin argues, presuppose a moral objectivity of principle, not, as Rehnquist assumes, moral skepticism.Less