Law as a System of Rights
Professor Susan Dimock
Copyright © Susan Dimock 2007
Not to be used without written permission of the copyright holder.
Ronald Dworkin (multiple works)
Law concerns which behavior will be punished or coerced by public power.
Law: the rights and duties that flow from past collective decisions and for that reason
license or require coercion.
Rules:
 apply in an all-or-nothing fashion
 they are either valid or invalid
 no conflict between rules is permitted; if two rules conflict, one must be invalid
 they are completely dispositive when they apply
Principles:
 a standard that is to be observed because it is a requirement of justice, fairness or
some other dimension of morality (e.g., that people should not profit from their own
wrongdoing)
 establish rights and duties
 gives a reason in favour of some decision, but does not determine it
 have a dimension of weight, relative strength
 officials must take them into account when they are relevant
 can conflict with one another
Policies:
 designed to achieve various social goals
 concern the balancing of competing interests in society
 may have thresholds
 properly set by elected politicians rather than judges
Cases: Riggs v Palmer; Henningsen; McLoughlin; Brown
Dworkin’s analysis of legal positivism – three theses
1) Law is a set of rules identified as law by some master rule, such as Hart’s rule of
recognition, which identifies valid law by the institutional history but not the content of
the rule (pedigree test).
2) When no rule clearly applies to a novel or otherwise uncertain case, judges have strong
discretion to decide the case as they choose.
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3) Legal rights and legal obligations are entirely the product of legal rules. If there is no
legal rule that applies to a case, neither of the parties to a dispute have a legal right to win
or a legal obligation, until a judge has decided the case by discretion.
Dworkin rejects all three claims.
If we accept (a) that the law contains principles as well as rules, and (b) that principles
are binding, so that judges have an obligation to consider them in making decisions, then
all three of the positivists’ theses are false.
The Rights Thesis:
Judges only enforce existing political rights and duties.
What rights people have is a function of two things:
1) the demands of political morality: two constitutive virtues are justice (abstract and
objective) and fairness (tied to the opinions and expectations of the community)
2) the institutional history and practices of a community
Explains the role of institutional history in judicial decisions, because judges must
determine what rights people have, and institutional history in part determines that.
Doctrine of Political Responsibility:
Political officials must only make decisions they can justify within a political theory that
also justifies the other decisions they propose to make.
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Sets a coherence constraint on decisions
Consistency in the application of principles is required (but not in the pursuit of
policy objectives)
Law as integrity applies the doctrine of political responsibility to the decisions of judges
(which differs importantly from the role of legislators).
Law as integrity:
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Thoroughly interpretive
Treats law as purposeful, an intentional creation
Judge is both interpreter and author (chain novel example)
The chain novelist must find an interpretation of what has been written before that is
an interpretation of a single novel (consistency and fit) that is the best it can be
(justified and presented in the best light)
1) Fit:
an interpretation must have explanatory power
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it must explain as many of the past decisions and their relative importance as possible
some past decisions might have to be considered mistakes and abandoned
2) Best Light:
An interpretation must make the law as a whole the best it can be
The judge asks, of all the interpretations that fit the past practices and decisions,
which makes the law best?
Depends upon substantive judgments about what makes the law best
“Best” means best from the standpoint of political morality (justice and fairness)
Decisions must both fit and justify what has been decided in the past, as far as possible.
The judge must find a coherent story about rights of various kinds (the right to limit
liability via contracts, the right to inherit, or the right to recover damages for injury to
persons or property, etc.)
Hercules accepts law as integrity. He must (a) assume that law is structured by a
coherent set of principles about justice, fairness and procedural due process, and (2)
extend those principles to new cases. He looks for some coherent story about legal rights
in some area (compensation, property, civil liberties, etc.) that would explain most of the
precedents and other parts of the institutional history, and would justify those rights.
3 questions:
Dworkin uses the example of the chain novel to explain his understanding of judicial
decision making as interpretive. The chain novelist has to ask herself which
interpretation and way of extending the story makes the ‘continuing novel better as a
novel.’ But now consider the analogy for law. The judge has to ask herself which
interpretation and way of extending the law makes the ‘continuing law better as law.’
Before we can answer this question, don’t we need to know what law is for and what
makes good law, just as we would have to know what makes a novel good before we can
answer the literary question?
Dworkin thinks law as integrity more accurately represents how judges make decisions
than either the positivist or the realist theories. But its strength seems to be as a theory of
common law adjudication. What can it say about judicial reasoning involving statutes?
If law contains not only rules and policies, but also principles, is there any reason to think
that a coherent story can be told?
Is it compatible with democracy to have judges decide what rights people have?
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