Moral limits of dworkin's theory of law and legal interpretation

Boston University Law Review

Volumn 90, Issue 2, 2010, Pages 595-602

  Lyons, David ^a,b,c  

^a Department of Law ^*  (United States)

^b BOSTON UNIVERSITY   (United States)

^c USA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77954328248     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (29)

1. See RONALD DWORKIN, JUSTICE FOR HEDGEHOGS (forthcoming 2010) (April 17, 2009 manuscript at 17, on file with the Boston University Law Review).
2. RONALD DWORHN, FREEDOM'S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION 32-39 (1996).
3. I will call that theory naturalism - a term Dworkin suggested in the source of our two principal examples. Ronald Dworkin, "Natural" Law Revisited, 34 U. FLA. L. REV. 165, 165 (1982).
4. Id. at 166.
5. We have more reason to endorse the moral fallibility of law than to accept any theory of law. Accommodating the former is arguably a plausibility condition for the latter.
6. Dworkin, supra note 3, at 172,186.
7. See id. at 165.
8. Id. at 179.
9. Id. at 186.
10. Id. at 172-73.
11. Id. at 172.
12. Id.
13. Id. at 172-73.
14. Naturalism also seems to imply that some precedents classified as mistaken were in fact correctly decided and represent sound moral judgments.
15. See, e.g., THOMAS HOBBES, LEVIATHAN 185 (Richard Tuck ed., Cambridge Univ. Press 1991)(1651).
16. RONALD DWORKIN, LAW'S EMPIRE 240-50 (1986).
17. See, e.g., id. at 240-42.
18. See DWORHN, supra note 1 (manuscript at 70) ("Convictions whose inconsistency is hidden in compartmentalization are also ineffective filters ... because inconsistency across departments of moral personality shows inattention rather than genuine respect and concern for others and permits what further examination shows to be arbitrary difference rather than principled evenhandedness.").
19. Ronald Dworkin, Response to Panel II: Interpretation at Justice for Hedgehogs: A Conference on Ronald Dworkin's Forthcoming Book (Sept. 25-26, 2009) (transcript on file with the Boston University Law Review).
20. Id.
21. See David Lyons, On Formal Justice, 58 CORNELL L. REV. 833,854 (1973).
22. Dworkin, supra note 3, at 172 (explaining that a judge may look at a long line of precedent dealing with negligence suits against lawyers, disagree with the decisions' "putative principle," and "properly regard this entire line of cases about actions against lawyers as mistakes, and ignore or overrule them").
23. Id. at 186-87.
24. Dworkin's constitutional objections to the Fugitive Slave Act of 1850, which denied due process to escaped slaves, are beside the present point.
25. See Ronald Dworkin, The Law of the Slave-Catchers, TIMES LITERARY SUPPLEMENT, Dec. 5, 1975, at 1437, 1437
26. (reviewing ROBERT M. COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PROCESS (1975)). The crucial point is the Constitution's support for slavery.
27. HOBBES, supra note 15, at 144-45 (explaining that under a sovereign government with unlimited power "men may fancy many evill consequences, yet the consequences of the want of it, which is perpetuall warre of every man against his neighbour, are much worse").
28. Dworkin, supra note 3, at 187.
29. I assume (as Dworkin allows might be the case) that the considerations which are capable of justifying property rights in general are incapable of including among them property in human beings.