Ronald Dworkin: Law as Integrity and the Rights Thesis

Imagine a cricket umpire who meets a situation the Laws of Cricket do not expressly cover. One view says the rulebook has run out, so the umpire must simply decide as he thinks best, in effect making a new rule on the spot. Another view says the umpire is still bound: the game has a spirit, a set of purposes and fair-play principles that lie behind the written Laws, and his job is to find the decision that best fits the game as a whole. Hart took the first view of hard cases in law. Ronald Dworkin took the second. His whole theory is an argument that judges are never simply free: behind the rules stand principles, and behind the principles stands the ideal of treating people with equal concern and respect.

Figure: Dworkin's two dimensions of interpretation: an interpretation must fit the settled law (horizontal axis) and justify it in its best moral light (vertical axis); Hercules chooses the reading that does both

1. Dworkin and His Place in Jurisprudence

Dworkin, an American who studied at Harvard and Oxford and clerked for Judge Learned Hand, succeeded H.L.A. Hart as Professor of Jurisprudence at Oxford in 1969, and later also taught at New York University. Examiners test the relationship: he was Hart's successor and critic, not his student. His project had two parts. The negative part was an attack on legal positivism, especially Hart's version (Note 11). The positive part was an interpretive theory of law in which moral principles are part of what the law is, so that law, morality and political philosophy form one connected enterprise. He is therefore often placed in a third position between positivism and natural law (see Note 3).

2. Rules and Principles: 'The Model of Rules' (1967)

Dworkin's opening essay, 'The Model of Rules' (1967), reprinted in Taking Rights Seriously, argued that positivism sees law as a system of rules identified by a master test of pedigree (Hart's rule of recognition). That picture, he said, leaves out the principles that lawyers and judges actually use, especially in hard cases.

Rules apply in an all-or-nothing fashion. If the facts a rule stipulates are given, then either the rule is valid and the answer it supplies must be accepted, or it is not valid and contributes nothing to the decision. If two rules conflict, one of them must be invalid or subject to an exception. Principles work differently. A principle states a reason that argues in one direction but does not necessitate a particular decision. Principles have a dimension of weight or importance: when principles conflict, the judge weighs them, and the principle that loses does not become invalid. It survives, ready to prevail in another case.

3. Principles versus Policies

Dworkin drew a second distinction inside the wider class of standards that are not rules. A policy sets out a goal to be reached for the community; a principle is observed because justice, fairness or some other dimension of morality requires it (his exact definitions are in the box below). Put simply, principles describe individual rights; policies describe collective goals.

This distinction carries his theory of adjudication. The legislature may legitimately act on policy, trading off one group's interests against another's for the general good, because it is elected and accountable. The court, in a hard case, must decide on principle: its job is to determine what rights the parties already have, not to pursue collective goals that no one voted for. An argument that 'this ruling will help the economy' is an argument of policy; an argument that 'this party has a right to be compensated' is an argument of principle.

4. The Three Senses of Discretion

Hart had said that when the rules run out the judge has discretion. Dworkin replied that the word has three senses, and that positivism slides between them. He used the example of a sergeant told by his lieutenant to pick men for a patrol.

5. The Rights Thesis and Rights as Trumps

Taking Rights Seriously (1977) gathers these essays into the rights thesis: judicial decisions in civil cases, even hard ones, characteristically are and should be generated by principle, and enforce existing political rights. The judge does not invent a new right and apply it retrospectively; he discovers the right a party already had. Dworkin's claim is that a party may have a right to win even in a hard case, where no settled rule decides the matter. That is carefully worded. He did not claim that every legal dispute has one party with a right to win in all conceivable circumstances; he accepted that a genuine tie is possible in principle, but argued that in a developed legal system with a rich body of principle such ties would be very rare.

Individual rights, Dworkin said, are political trumps held by individuals. If a collective goal is not a sufficient justification for denying a person what he wishes to have or to do, he has a right to it. To take rights seriously is to accept that the government may not override a right merely because doing so would produce some gain in the general welfare. Underlying all rights is the most fundamental one: the right of each person to be treated with equal concern and respect.

6. Hard Cases and Judge Hercules

A hard case is one where no settled rule clearly dictates the outcome, or where the rules seem to point to an unjust result. The positivist says the law has run out and the judge must legislate in the gap. In 'Hard Cases' (1975), reprinted in Taking Rights Seriously, Dworkin introduced Hercules, an imaginary judge of superhuman skill, learning, patience and acumen. Hercules constructs the scheme of abstract and concrete principles that provides the most coherent justification for all the settled law: the constitution, the statutes and the precedents. He then applies that scheme to the case before him. Hercules is not a description of real judges; he is a model of what the judicial task requires, against which real judges can measure their reasoning.

Hercules tests each candidate interpretation on two dimensions (see the figure). Fit: it must fit the settled materials reasonably well, or it is not an interpretation of this legal system at all. Justification: among the readings that fit, he prefers the one that shows the law in its best moral light. The reading that best combines the two yields the answer, and the parties had the rights it recognises all along.

7. Law's Empire (1986): Law as Integrity

In Law's Empire (1986) Dworkin restated his theory as a theory of interpretation. Law, he argued, is an interpretive concept. Lawyers do not share a neutral test for what counts as law; they argue about what the law requires by offering competing interpretations of legal practice. Interpretation is constructive: it tries to make the object the best example of its kind that it can be. It moves through three stages: pre-interpretive (identifying the practice), interpretive (settling on its general justification) and post-interpretive (adjusting what the practice really requires).

The semantic sting

Dworkin attacked positivism with the argument of the semantic sting. Positivists, he claimed, assume that lawyers share common criteria for using the word 'law', so that disagreements can only be about borderline applications or empirical facts (what the legislature actually enacted). But lawyers and judges often have theoretical disagreements about the very grounds of law, as in Riggs v Palmer, where the judges disagreed about how a statute should be read. A theory that cannot explain such disagreement has been 'stung'. (Hart replied in the Postscript that his theory was never a semantic theory of this kind.)

Three conceptions of law

Dworkin compared three conceptions. Conventionalism: law is what past conventions decided, and where they run out the judge makes new law. Pragmatism: judges should decide whatever is best for the community's future, giving past decisions no independent claim. Law as integrity, which he defended: rights flow from past decisions, including not only what they explicitly state but also the principles that best justify them.

Integrity in legislation and in adjudication

Integrity is a political virtue alongside justice, fairness and procedural due process. It requires the State to speak with one voice and to act on a coherent set of principles towards all its citizens. It has two parts. The legislative principle asks lawmakers to try to make the total set of laws morally coherent. Dworkin's example is the checkerboard statute, a compromise such as allowing abortion for women born in even years and forbidding it for those born in odd years; even if it split the difference between two views, we reject it as unprincipled. The adjudicative principle asks judges to treat the law, so far as possible, as coherent in this way, and to decide new cases in the light of it.

The chain novel

Dworkin's most famous image appears in Law's Empire. Imagine a novel written by several authors in series, each adding a chapter to those already written. No author is free to write anything he likes, because his chapter must fit the characters and plot already established; nor is he a mere copyist, because he must make the novel as a whole the best it can be. The judge is in the same position: precedents are the earlier chapters, and his decision is the next one.

8. Later Works: Freedom's Law and Justice for Hedgehogs

In Freedom's Law (1996) Dworkin defended the moral reading of constitutions: abstract clauses such as equal protection, due process and free speech are appeals to moral principles, which judges must apply to modern problems within the discipline of fit with text, history and precedent. In Justice for Hedgehogs (2011), named after the saying that the fox knows many things but the hedgehog knows one big thing, he argued for the unity of value: law is a branch of political morality, not a separate system that sometimes borrows from it.

9. The Debate with Hart, in Brief

Hart's reply came in the Postscript to The Concept of Law, published posthumously in 1994. He accepted that law contains principles but said that his rule of recognition could identify them, and that it may even incorporate moral tests (a position often called soft or inclusive positivism). He maintained that judges do have a limited, interstitial law-making discretion where the law is incomplete, and that his theory was a general and descriptive account of law everywhere, while Dworkin's was a justificatory account tied to a particular legal culture. The full comparison belongs to Note 64 (Hart versus Dworkin).

10. Criticism and Evaluation

11. Dworkin's Ideas in Indian Law

Indian courts rarely rest a decision on Dworkin by name, but his categories explain much of Indian constitutional reasoning. The illustrations below show his ideas at work; they do not suggest that the courts were applying his theory.

12. Frequently Asked Questions

Q. What is the difference between rules and principles for Dworkin?
A. Rules apply all-or-nothing: if a valid rule applies, it settles the case. Principles have weight: they give reasons pointing one way, are weighed against other principles, and survive even when outweighed. Principles are not identified by a pedigree test such as Hart's rule of recognition.

Q. Did Dworkin say every case has one right answer?
A. He said that a party may have a right to win even in a hard case, so the judge's job is to find that right rather than create it. He accepted that ties are possible in principle but thought them very rare in a developed legal system with a rich body of principle.

Q. What is the Indian counterpart of Riggs v Palmer?
A. Section 25 of the Hindu Succession Act, 1956, which disqualifies a murderer, or a person who abets the murder, from inheriting the property of the victim. It turns the principle that no one may profit from his own wrong into a statutory rule.

See also: Note 11 (analytical positivism and Hart), Note 43 (legal reasoning), Note 47 (certainty and discretion), Note 64 (Hart versus Dworkin).