Dworkin's "One-system" conception of law and morality

Boston University Law Review

Volumn 90, Issue 2, 2010, Pages 857-862

  Baxter, Hugh ^a  

^a BOSTON UNIVERSITY   (United States)

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EID: 77954317112     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (49)

1. Dworkin invokes his prior major works on law: RONALD DWORHN, TAHNG RIGHTS SERIOUSLY (1977);
2. RONALD DWORHN, A MATTER OF PRINCIPLE (1985);
3. RONALD DWORHN, LAW'S EMPIRE (1986);
4. and RONALD DWORHN, JUSTICE IN ROBES (2006). Rather than "summarize [his] jurisprudential views in any detail," he says, he wants instead to "show how these form part of the integrated scheme of value this book imagines."
5. RONALD DWORKIN, JUSTICE FOR HEDGEHOGS (forthcoming 2010) (Apr. 17, 2009 manuscript at 289, on file with the Boston University Law Review).
6. DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 252).
7. Id. (manuscript at 256).
8. Id. (manuscript at 294).
9. Id. (manuscript at 252).
10. Id.
11. Id. Justice in Robes distinguishes among different "stages" in thinking about law semantic, jurisprudential, doctrinal, and adjudicative - as well as different concepts of law: taxonomie, sociological, aspirational, and doctrinal.
12. See DWORKIN, JUSTICE IN ROBES, supra note 1, at 2-5. His focus there, as in Justice for Hedgehogs, is on the doctrinal concept and the doctrinal stage, where the question is whether "moral criteria are ever, and if so when, among the truth conditions of propositions of law."
13. Id. at 2;
14. see also, e.g., id. at 5 ("[T]he important question is whether and how morality is relevant to deciding which propositions of law are true.").
15. DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 253).
16. Id.
17. See, e.g., H.L.A. HART, THE CONCEPT OF LAW 203-04 (Clarendon Press 2d ed. 1994) (1961) (stating that we see the influence of morality on law "at a thousand points").
18. DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 253). Dworkin's draft of Justice for Hedgehogs indicates that a footnote yet to be written will provide an "[e]xception for 'soft' ['inclusive'] positivism."
19. Id. (manuscript at 253 n.212). My formulation in text, I think, accounts for that exception.
20. Id. (manuscript at 253).
21. See ROBERT ALEXY, THE ARGUMENT FROM INJUSTICE: A REPLY TO LEGAL POSITIVISM 127 (Bonnie Litschewski Paulson & Stanley L. Paulson trans., Clarendon Press 2002)
22. (1994) (defining law as a system of norms that, inter alia, "are not themselves unjust in the extreme").
23. I doubt however, that one can understand all natural law theories as presupposing a two-system, rather than a one-system, view of law and morality.
24. DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 253).
25. Id.
26. Id.
27. Id.
28. As Dworkin puts it "we take law and morality to compose separate systems of norms there is no neutral standpoint from which the connections between the supposed two systems can be adjudicated." Id.
29. Id. (manuscript at 253-54).
30. Id. (manuscript at 255).
31. Id. (manuscript at 254) ("If law and morals are two separate systems, it begs the question to suppose that the best theory of what law is depends on... moral issues.").
32. Id. (manuscript at 255).
33. The classic and comprehensive work on law as an "autopoietic" system is NIKLAS LUHMANN, LAW AS A SOCIAL SYSTEM (Klaus A. Zeigert trans., Oxford Univ. Press 2004) (1993).
34. One attempt to make the theory comprehensible and useful to Anglo-American legal academics is Hugh Baxter, Autopoiesis and the "Relative Autonomy" of Law, 19 CARDOZOL.REV. 1987 (1998).
35. DWORHN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 255).
36. Id.
37. Id.
38. Id.
39. Id.
40. Id.
41. Id.
42. See id. (manuscript at 256) (raising, without answering, the question of whether "anthropologists can find the historical origins of the elaborate legal structures and practices with which we are familiar in the development of... tribal moralities" and referring to this approach as a "genealogy").
43. For an indication of Habermas's admiration for Dworkin's work, see generally JÜRGEN HABERMAS, Ronald Dworkin - A Maverick Among Legal Scholars, in EUROPE: THE FALTERING PROJECT 37 (Ciaran Cronin trans.. Polity Press 2009) (speech honoring Dworkin on his reception of the Niklas Luhmann Prize in December 2006).
44. Habermas's most systematic consideration of law is JÜRGEN HABERMAS, BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW AND DEMOCRACY (William Rehg trans., MIT Press 1996) (1992).
45. Id. at 111.
46. Id. at 155-56.
47. Dworkin, too, sees a connection between the concept of a legal right and its enforcement: "Legal rights," he says, "are political rights that are properly enforced, directly on a citizen's demand, by an adjudicative body." DWORHN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 2).
48. DWORKIN, JUSTICE IN ROBES, supra note 1, at 225 (stating that he has held this position "for many years").
49. DWORKIN, JUSTICE FOR HEDGEHOGS, supra note 1 (manuscript at 256).