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  • Writer's pictureJordan Perkins

Was Dworkin a Legal Positivist?

Updated: Feb 15, 2022

In the world of live theories in contemporary jurisprudence, Dworkinian interpretivism is often presented as the primary threat to legal positivism from the last few decades. The battle lines are roughly as follows: According to legal positivists, law is purely a matter of social fact. Whether a purported norm represents (part of) the law of a given legal system is nothing but a factual question–say, what a legislature has passed or what an executive agency has commanded of regulated entities in a rulemaking.

For Dworkin, this understanding of the nature of law creates a puzzle: where judges, lawyers, and others disagree about what the law says, they often have exactly the same set of statutes, regulations, written judicial opinions, and so on sitting in front of them. The parties and the judge, as competent English readers, can all read these sources and determine what they mean. So how is disagreement possible? How is it that we can all disagree what the sources say when we all have access to them and know how to read them?

The Dworkinian answer to this question lies in the realm of, as a twitter acquaintance (@dbaten3) put it, hermeneutics. It is, in essence, about what happens in our heads when we reason about what the law means in a given context. There are two elements to the process of legal reasoning: fit and justification. Fit is about how well a given interpretation matches the positivistic sources. There may be several different legal rules or principles which fit reasonably well with those sources. The sources themselves are thus not dispositive. We enter the realm of justification when we assume that the proper legal rule is the one which puts the law in its “best moral light.” In other words, we assume, where the sources leave a range for interpretive discretion, that the law is less wicked instead of more, and we trade off interpretations which fit the sources somewhat better for those which are morally better. We come to an interpretation which strikes us as the best one, all things considered, taking account of both dimensions.

This is Dworkin’s so-called interpretivist theory of law. It is, at least in principle, a theory of how one could interpret any text, from a statute to a novel. In some of my earliest jurisprudential work, I took issue with the idea that the “justification” stage is necessarily moral. I argued, for example, that if the overall purpose of a statutory scheme is to resolve a certain economic problem in an economically efficient way–say, by forcing polluters to internalize the externalities of their activities and thereby continue polluting only if the overall process is a net social benefit–then the principal component of a proper justification is that, all else equal, the rule should be interpreted in a way which is as efficient as possible, in a rule utilitarian sense. Morality enters the picture insofar as the most efficient possible interpretation of the statute might do great violence to the statutory text, so that there would be rule-of-law fairness issues with the “morally best” possible interpretation of the statute. (Note: This account of the rule-of-law values involved comes close to saying that Fullerian internal morality of law values are part of the fit stage, not the justification stage.) However, these sorts of constraints (and perhaps others) aside, in the justification stage, respecting the underlying purpose of the statutory scheme (and thereby the sovereign power exercised through its promulgation) would require that we choose an efficient interpretation, not a moral one. To the extent that Dworkin is a natural lawyer, it sneaks into his theory here, in the idea that the justification stage is about moral justification, and not justification under some other yardstick such as economic efficiency. In my view, the law’s justification thus need not be a moral justification. Such doctrines as efficient breach and disgorgement as a penalty for unjust enrichment are most plausibly seen as an outgrowth of an interpretivist methodology which reads private law as interpretivist in this sense, not in Dworkin’s. And, of course, we see alternative yardsticks throughout the law: the Freedom of Information Act should not be interpreted to make the law as good as possible, but to maximize the transparency of government action, subject to certain efficiency constraints. As a final example, the Administrative Procedure Act should probably be read as an attempt to place agencies under a certain kind of oversight from the courts and other actors, lest they break free from their statutory mandates, not to make administrative law as morally good as it can possibly be. (The reader who disagrees with my account of the 'purposes' behind these particular legal developments can most certainly supply other examples offhand.)

My major point here is that, if we loosen Dworkin’s ‘justification’ step in the way I just suggested, it is unclear how the best possible version of legal positivism is not an interpretivist theory, and one very much like Dworkin’s. The simplest version of positivism is surely Austin’s, under which what it means to be law is to be the command of a sovereign power to an inferior. In any normal context, the interpretation of a superior’s command, or a principal’s to an agent, is interpretivist in my sense. A lawyer tells his client to do something. An employer does the same to his employee, or a parent to a child. If there is room for any ambiguity whatsoever regarding what the command meant, the inferior power or agent must interpret the command in light of the ostensible purposes of the superior or principal. To purposefully choose a wooden, overly literal interpretation of the words uttered over one clearly consonant with the purposes and wishes of the principal would be just as much a dereliction of duty as to completely ignore the words spoken altogether. (A blog post for another day: This is exactly the problem with the wooden textualism of Neil Gorsuch’s jurisprudence. He systematically loads the interpretation stage with parochial ideas about the nature of democratic government, as opposed to the commonplace rules of interpretation that we use just about everywhere in our lives.) Why should the commands which make up our law be treated differently from any other?

If this is right–and I think it is–it suggests that there’s much less space between legal positivism and Dworkinian interpretivism than we might assume. It is not so much that the well-meaning positivist is not an interpretivist. It is merely that, when he interprets the legal sources which are the grounds of law, he should have a somewhat more open-ended understanding of the justification stage than Dworkin had. Moral reasoning is always, again “hermeneutically,” part of the law. Return to the simple example of a command given by an employer to an employee or a parent to a child: under normal circumstances, one would not choose a murderous interpretation over a morally benign one; one does not, as a general rule, interpret one’s linguistic interlocutors so as to render them psychopaths. There is thus always something of a Dworkinian justification stage in interpreting the utterances of others insofar as we assume that our conversation partners are not morally wicked. “I must have misheard you” or “You must have misspoken.” However, as we have seen, a more natural interpretation will generally load other values into the justification stage; the parent does not merely wish the child to behave morally, but also to avoid unreasonable risks of physical injury. An interpretation of the parent's actual purpose which does not take this other component of justification into account is deficient. The more natural–more applicable to everyday linguistic interpretation–we make the justification stage of an interpretivistic theory, the more amenable it would seem to be to at least Austinian positivism. I doubt that Dworkin would be happy with this modification to his theory; he had specific, ideologically derived purposes behind front-loading a theory of Ivy League liberal morality into his theory of law. My refinement of his theory thereby severs the work product from the reason he produced it. However, it is unclear to me that the positivist should object to this modification of Dworkin’s theory. And, if not, the answer to the question in my title: No, Dworkin was not a positivist, but perhaps he should have been?

Addendum (Feb. 14, 2022): Another way to think of the normative standards internal to the law is to think that the law encapsulates morality, as Dworkin says, but the conventional morality of the political-legal community, not the objectively true morality. (That Dworkin himself intended the latter view is the unavoidable conclusion of, at least, his Justice for Hedgehogs period.) The norms and values which make up the conventional morality of a particular community are, of course, a sociological fact about that community and is thus fully compatible with a positivistic jurisprudential framework: we can treat the conventional moral norms of a community as part of the social facts which determine what the law is. The problem with this view, as Dworkin himself might point out, is that any attempt to understand the morality of a distinct community, whether our own or a foreign one, will involve an interpretation of their practices which utilizes our own moral concepts in certain, unavoidable ways. A machine learning algorithm with no moral conceptual apparatus whatsoever may be able to sort the moves of players in a legal community between licit and illicit, but I seriously doubt it could ever understand which moves are illicit because of the stamp of disapprobation which accompanies violations of the moral law (or, perhaps, our moral law). Interpreting such standards involves having and applying like standards of our own, even where we come to the conclusion that the community's morality is very different from ours. Thus, there is a danger that an interpretivist approach of this sort can never be truly pure, and will always lapse unconsciously into a true-morality interpretivist framework like Dworkin's. However, such a framework has some advantages over Dworkin's. It respects the pure concept of sovereignty, as seen, for example, in the British notion of parliamentary supremacy, in a way that natural law-infused frameworks cannot. Sovereign authorities may simply wish to command that which we believe to be irredeemably evil, a fact we can presumably never fully acknowledge while following the imperative to place the legal sources in their best moral light; we will always attempt to soften rough edges that the sovereign may not wish to be softened, and that cannot be softened so long as we acknowledge its sovereignty. Further, because no human being has unerring access to "true" morality, the right answer framework Dworkin builds upon moral realism places us in the unhappy position that we can never really know what the law says: so long as we cannot be certain that our moral intuition perfectly tracks true morality in a given case, we cannot know that our attempt to place the law in its best moral light is the right one. The law risks evanescing into the realm of Kantian noumena, where we can never perceive more than its fuzzy reflection. My own view is that we gain far more than we lose by abandoning Dworkin's commitment to moral realism as a position required by the right stance in analytical jurisprudence, especially if we want jurisprudential views which are sufficiently universal to provide a sociological lens on the legal practices of societies with conceptions of true morality very different from our own.

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