1. INTRODUCTION

Ronald Dworkin was born in 1931 in Providence, Rhode Island, United States. He studied

atHarvard University and at Magdalen College, Oxford, where he was a Rhodes Scholar and

a student of Sir Rupert Cross. After completing his final year's exams at Oxford, the

examiners were so impressed with his script that the Chair of Jurisprudence was summoned

to read it.1 Dworkin then attended Harvard Law School and subsequently clerked for

Judge Learned Hand of the United States Court of Appeals for the Second Circuit.2 After

working at Sullivan & Cromwell, a prominent law firm in New York City, Dworkin became

a Professor of Law at Yale University, where he became the holder of the Wesley N.

Hohfeld Chair of Jurisprudence.

In 1969, Dworkin was appointed to the Chair of Jurisprudence at Oxford, a position in which

he succeeded H. L. A. Hart, and elected Fellow of University College, Oxford. After retiring

from Oxford, Dworkin became the Quain Professor of Jurisprudence at University College

London, where he subsequently became the Bentham Professor of Jurisprudence. During the

early portion of Dworkin's career, social movements such as those connected with civil

rights, women's equality, the environment, and the Vietnam War, confronted philosophers

with the task of reassessing liberalism. Influential radicals, including Herbert Marcuse, held

liberalism responsible for the injustices of the era. However, other philosophers sought to

reformulate and defend liberal ideas. John Rawls was the leading figure in the reformulation

of liberalism, but next to Rawls, no thinker writing in English has played a larger role than

Dworkin. His work is informed by the conviction that the moral task of citizens and public

officials is not to jettison liberal democracy but to make their society a more faithful

realization of liberal ideals.

Dworkin argues that legal reasoning has an ineliminable moral dimension and defends a form

of liberalism that regards the right to equality as the sovereign political principle. His

argument about legal reasoning rejects the positivist view that the existence of laws depends

ultimately on social facts that can be ascertained without resort to moral judgments. It also

opposes those natural law theories that hold the legal validity of a norm to depend on its

consistency with substantive justice. Dworkin's defense of liberalism rejects the radical view

1 Then, H.L.A. Hart.2 Judge Hand would later call Dworkin the finest clerk he ever employed, and Dworkin would recall Judge Hand as an enormously influential mentor.

that liberal principles are complicit in the perpetuation of oppression. It opposes as well the

conservative view that liberal ideas have a corrupting influence on society. Writing as a

public intellectual, Dworkin has contributed to controversies over civil disobedience, free

speech, campaign financing, affirmative action, physician-assisted suicide, abortion, and civil

liberties. He has also addressed debates over constitutional interpretation in the United States,

rejecting theories resting on the framer's intent and advocating interpretations informed by

moral principles that protect individual rights.

The most widely discussed thesis in jurisprudence for a decade was Dworkin's rights thesis,

defended in Taking Rights Seriously(1977). The thesis holds that, in almost all legal cases,

one side has the legal right to win. Dworkin criticizes H. L. A. Hart's positivist classic  The

Concept of Law (1961) for claiming that in hard cases, where legal rules do not determine

which side should win, judges have discretion to render decisions as social utility dictates.

Dworkin argues that Hart neglects the moral principles that underlie legal rules and constitute

part of the law. Such principles help to determine the legal rights of persons whereas rights

function as "trumps" that an individual holds against the government and its efforts to

promote utility or some other societal good at the individual's expense. Dworkin imagines a

superhuman judge "Hercules," who knows all the best moral principles underlying the settled

law. Though more limited in their cognitive capacities, human judges should, and

characteristically do, seek out those principles that bear on the cases they decide.

The judiciary plays an important role in all legal system. But the question is: How does a

judge decides a case? If a case is brought to the court, the judge cannot refuse to adjudicate it

on the basis that there is no precedent or the lawyer cannot cite any authority on the point of

law.In this connection, Dworkin observed that there is a right answer to each case3.

Dworkin’s Right Thesis involves the general claim that within legal practice and a proper

understanding of the nature of law, rights are more fundamental than rules. This is the

opposite claim to most legal positivists. Rights are trumps in Dworkin’s Theory, which

means that if there is any right which comes into conflict with any policy, the right must

prevail.

3 Taking Rights Seriously. Cambridge, MA: Harvard University Press, 1977.

2. LAW AS A SEAMLESS WEB

2.1 Rule of law

The law is to be treated as a seamless web in which there always is a right answer. Judicial

decisions are characteristically generated by principles and enforces existing political rights,

so that litigants are entitled to the judge’s best judgment about what their rights are. To

Dworkin, different judge may come to different conclusions but he insists that judges may

not rely on their own political views but only on their beliefs in the soundness of those

convictions.

It has long been received opinion that judges “filled in the gaps” left by rules by using their

discretion. HLA Hart has written, “That the rule-making authority must exercise

discretion…” Hart saw rules as ‘open-textured’. Austin saw no problem in this. It is the thesis

of Dworkin that judicial discretion in what Dworkin calls its “Strong Sense” does not exist.

Dworkin rejects the view regarding judicial discretion. The judges often are heard to say:

“We find the law to be this”, and they say they discover the law. They do not profess the law

to be their own discretion.

For Dworkin, judges are always constrained by the law. In every adjudication of the so-called

“hard-cases’ there are controlling standards which a judge is obligated to follow.

Dworkin objects to judges acting as ‘deputy legislators’ for 2 reasons:

(i) Separation of Power: It offends the democratic ideal that a community should be

governed by elected officials answerable to the electorate. The judge not being elected must

not substitute his own will as against the legislature. (In Lord Simmons words, “it’s a naked

usurpation of legislative functions”4).

(ii) Retrospectivity & The Rule of Law5: Dworkin’s 2nd objection to judicial originality is

that “if a judge makes a new law and applies it retrospectively in the case before him, then

the losing party will be punished, not because he has violated some duty he had, but rather a

new duty created after the event.”6

If judges are to make law, as what Hart said7, that would be in contradiction to the theory of

separation of power. If judges were to make law in hard cases, they would be applying the

law retrospectively; that’s against the rule of law. Citizen has a complaint that even though he

was not surprised by retrospective legislation, there was no liability at that time he did the act.

If the citizen is being made retrospectively liable, it is because there was no law at that time 4 Lord Simmons 5 Ronald Dworkin I edited by Arthur Ripstein. Cambridge University Press 1st Edn.20076 Taking Rights Seriously. Cambridge, MA: Harvard University Press, 1977.7 The Concept of Law, H.L.A. Hart

that made him liable that places a special duty upon the legislature to justify retrospective

legislation.

2.2 Judicial Descretion

For legal positivism, the law is the law posited. So what is the position in a case where a rule

has not been posited? Take a skateboard case. The actual legal position is likely to focus on

language: “Is a skateboard a vehicle for the purpose of the by-law which prohibits vehicles to

be used in Hyde Park? The rule does not extend to determine the question of skateboards.

Thus there is a gap in the law. We can simply say that because there is no mention, they are

permitted. Both sides cannot refer to decided case-laws. The prosecution might say it is

included in the mischief of the Act.

Dworkin wishes us to consider carefully what lawyers are actually doing as a matter of legal

principle in hard cases. If both sets of lawyers are serious, both sides believe that they are

correct. Both sides actually believe that there is an answer. Why then go to the court if you do

not believe that your side is correct, that the law Is as you claim?

Austinian positivism is clear – when the rules ran out the judge operate as a deputy legislator

filling in the gaps. To Austin, rules do not have extensionality. However, Neil MacCommick

in his “Legal Rights and Legal Reasoning” said that we can extend rules by analogy but this

will extend positivism in a way which goes against the essential core: it’s clarity. Austinwas

interested in the absolute clarity of law.

If for example, a judge decides that skateboards are included in the definition and are banned

from Hyde Park, he adds to the wordings of the Statute – he comes to a posited decision. But

the judge has now extended the law and this binds the future.

Dworkin is not satisfied with this model8. The reasons are: Discretion is not free-standing but

part of a process. Discretion, like the hole in the doughnut, does not exist except as an area

left open by a surrounding belt of restriction. Discretion is not outside the law but internal to

the law. If judicial decision making was unfettered discretion we would have to say that it is

no special role for judges beyond being a political and administrative official. If judges were

unfettered law makers they would have to be democratically elected.9

If judges simply exercised discretion and make new rules they would be changing the rules of

the game. Each time they do so they also commit a fraud on the litigants.

8 RONALD DWORKIN, Is There Really No Right Answer in Hard Cases?, in A MATTER OF PRINCIPLE 119, 119 (1985).9 See ‘hard cases’ TRS,1977; Pg 81-131.

Dworkin has an alternative theory10. The first step is to make a distinction between strong and

weak discretion. Strong discretion is where the officials are bound by pre-existing standards

set by the authority. Weak discretion is when the standard cannot be applied in a mechanical

way. There’s a need to evaluate what the standard means in a new case. In weak discretion,

there is no gap in the law. Strong discretion does not exist for judges. Weak discretion is part

of the judicial role. The discretion is controlled and there are no gaps in the law.

Hart says that judges exercise strong discretion in hard cases. But that seems to equate: Rules

+ Discretion = New Rules.

In order to understand Dworkin’s criticism of Hart, we need to understand the distinction

drawn by Dworkin regarding Rules and Principles, and Constructive Interpretation as

propounded by Dworkin.

3. RONALD DWORKIN’S THEORY OF LAW

10 Ronald Dworkin, A matter of principle (1985).

Ronald Dworkin’s so-called third theory of law is best understood as a response to legal

positivism, which is essentially constituted by three theoretical commitments: the Social Fact

Thesis, the Conventionality Thesis, and the Separability Thesis. The Social Fact Thesis

asserts it is a necessary truth that legal validity is ultimately a function of certain kinds of

social facts; the idea here is that what ultimately explains the validity of a law is the presence

of certain social facts, especially formal promulgation by a legislature.

The Conventionality Thesis emphasizes law’s conventional nature, claiming that the social

facts giving rise to legal validity are authoritative in virtue of a social convention. On this

view, the criteria that determine whether or not any given norm counts as a legal norm are

binding because of an implicit or explicit agreement among officials. Thus, for example, the

U.S. Constitution is authoritative in virtue of the conventional fact that it was formally

ratified by all fifty states.

The Separability Thesis, at the most general level, simply denies naturalism’s Overlap Thesis;

according to the Separability Thesis, there is no conceptual overlap between the notions of

law and morality. As Hart more narrowly construes it, the Separability Thesis is “just the

simple contention that it is in no sense a necessary truth that laws reproduce or satisfy certain

demands of morality, though in fact they have often done so” 11.

Dworkin rejects positivism’s Social Fact Thesis on the ground that there are some legal

standards the authority of which cannot be explained in terms of social facts. In deciding hard

cases, for example, judges often invoke moral principles that Dworkin believes do not derive

their legal authority from the social criteria of legality contained in a rule of recognition12.

In Riggs v. Palmer13, for example, the court considered the question of whether a murderer

could take under the will of his victim. At the time the case was decided, neither the statutes

nor the case law governing wills expressly prohibited a murderer from taking under his

victim’s will. Despite this, the court declined to award the defendant his gift under the will on

the ground that it would be wrong to allow him to profit from such a grievous wrong. On

Dworkin’s view, the court decided the case by citing “the principle that no man may profit

from his own wrong as a background standard against which to read the statute of wills and

in this way justified a new interpretation of that statute”14.

11 H.L.A. Hart, The Concept of Law, Second Edition (Oxford: Clarendon Press, 1994)12 Dworkin TRS, 1977, Pg.40.13 115 N.Y. 506 (1889)14 Dworkin Taking Rights Seriously. Cambridge, MA: Harvard University Press, 1977;Pg.29

On Dworkin’s view, the Riggs court was not just reaching beyond the law to extralegal

standards when it considered this principle. For the Riggs judges would “rightfully” have

been criticized had they failed to consider this principle; if it were merely an extralegal

standard, there would be no rightful grounds to criticize a failure to consider it 15.

Accordingly, Dworkin concludes that the best explanation for the propriety of such criticism

is that principles are part of the law.

Further, Dworkin maintains that the legal authority of standards like the Riggs principle

cannot derive from promulgation in accordance with purely formal requirements: “[e]ven

though principles draw support from the official acts of legal institutions, they do not have a

simple or direct enough connection with these acts to frame that connection in terms of

criteria specified by some ultimate master rule of recognition”16.

On Dworkin’s view, the legal authority of the Riggs principle can be explained wholly in

terms of its content. The Riggs principle was binding, in part, because it is a requirement of

fundamental fairness that figures into the best moral justification for a society’s legal

practices considered as a whole. A moral principle is legally authoritative, according to

Dworkin, insofar as it maximally conduces to the best moral justification for a society’s legal

practices considered as a whole.

Dworkin believes that a legal principle maximally contributes to such a justification if and

only if it satisfies two conditions: (1) the principle coheres with existing legal materials; and

(2) the principle is the most morally attractive standard that satisfies (1). The correct legal

principle is the one that makes the law the moral best it can be. Accordingly, on Dworkin’s

view, adjudication is and should be interpretive: [J]udges should decide hard cases by

interpreting the political structure of their community in the following, perhaps special way:

by trying to find the best justification they can find, in principles of political morality, for the

structure as a whole, from the most profound constitutional rules and arrangements to the

details of, for example, the private law of tort or contract.

4. RIGHTS THESIS

4.1 Principles and Policies

15 Ibid ,Pg 35.16 Ibid, Pg 41.

Theories of adjudication have become more sophisticated, but the most popular theories still

put judging in the shade of legislation. The main outlines of this story are familiar. Judges

should apply the law that the other institutions have made; they should not make new law.

That is the ideal, but for different reasons it cannot be realized fully in practice. Statutes and

common law rules are often vague and must be interpreted before they can be applied to

novel cases. Some cases, moreover, raise issues so novel that they cannot be decided even by

stretching or reinterpreting existing rules. So judges must sometimes make new law, either

covertly or explicitly. But when they do, they should act as deputy to the appropriate

legislature, enacting the law that they suppose the legislature would enact if seized of the

problem.

That is perfectly familiar, but there is buried in this common story a further level of

subordination not always noticed. When judges make law, so the expectation runs, they will

act not only as deputy to the legislature but as deputy legislature. They will make law in

response to evidence and arguments of the same character as would move the superior

institution if it were acting on its own. This is a deeper level of subordination, because it

makes any understanding of what judges do in hard cases parasitic on a prior understanding

of what legislators do all the time. This deeper subordination is thus conceptual as well as

political.

In, fact however, judges neither should be nor are deputy legislators, and the familiar

assumption, that when they go beyond political decisions already made by someone else they

are legislating, is misleading. It misses the importance of a fundamental distinction within

political theory, which I shall now introduce in a crude form. This is the distinction between

arguments of principle on the one hand and arguments of the policy on another.

Arguments on policy justify a political decision by showing that the decision advances or

protects some collective goal of the community as a whole. The arguments in favour of a

subsidy for aircraft manufacturers that the subsidy will protect national defence, is an

argument of policy. Arguments of principle justify a political decision by showing that the

decision respects or secures some individual or group right. The argument in favour of anti-

discrimination statutes, that a minority has a right to equal respect and concern, is an

argument of principle. These two sorts of argument do not exhaust political argument.

Sometimes, for example, a political decision like the decision to allow extra income tax

exemptions for the blind, may be defended as an act of public generosity or virtue rather on

grounds of either policy or principle. But policy and principle are the major grounds of

political justification.

Dworkin added that when case at hand is a hard case, when no settled rule dictates a decision

either way, then it might seem that a proper decision could be generated by either policy or

principle. Consider, for example, the problem of the recent Spartan Steel Case17 . The

defendant’s employees had broken an electric cable belonging to a power company that

supplied power to the plaintiff, and the plaintiff’s factory was shut down while the cable was

repaired. The court had to decide whether to allow the plaintiff recovery for economic loss

following negligent damage to someone else’s property. It might have proceeded to its

decision by asking either whether a firm in the position of the plaintiff had a right to

recovery, which is a matter of principle, or whether it would be economically wise to

distribute the liability for accidents in the way the plaintiff suggested, which is a matter of

policy.

4.2 Jurisprudence

We have, therefore, in these political considerations, strong reason to consider more carefully

whether judicial arguments cannot be understood, even in hard cases, as arguments,

generated by principle. We have an additional reason in a familiar problem of

jurisprudence .Lawyers believe that when judges make new law their decision are constrained

by legal traditions but are nevertheless original and personal. Novel decisions, it is said,

reflect a judge’s own political morality, but also reflect the morality that is embedded in the

traditions of the common law, which might well be different. This is, of course, only law

school rhetoric, but it nevertheless poses the problem of explaining how these different

contributions to the decision of a hard case are to be identified and reconciled.

One popular solution relies on a spatial image; it says that the traditions of the common law

contract the area of a judge’s discretion to rely upon his personal morality, but do not entirely

eliminate that area. But this answer is unsatisfactory on two grounds. First, it does not

elucidate what is at best a provocative metaphor, which is that some morality is embedded in

a mass of particular decisions other judges have reached in the past. Second, it suggests a

plainly inadequate phenomenological account of the judicial decision .Judges do not decide

hard cases in two stages, first checking to see where the institutional constraints end, and then

setting the books aside to stride off on their own. The institutional constraints they sense are

pervasive and endure to the decision itself. We therefore need an account of the interaction of

personal and institutional morality that is less metaphorical and explains more successfully

that pervasive interaction.17 [1973] Q.B. 27

The rights thesis, that judicial decisions enforce existing political rights, suggests an

explanation that is more successful on both counts. If the thesis holds, then institutional

history acts not as a constraint on the political judgement of the judges but as an ingredient of

that judgement, because institutional history is part of the background that any plausible

judgement about the rights of an individual must accommodate. Political rights are creatures

of both history and morality: what an individual entitled to have, in civil society, depends

upon both the practice and the justice of its political institutions. So the supposed tension

between judicial originality and institutional history is dissolve: judges must make fresh

judgements about the rights of the parties who come before them but, these political rights

reflect , rather than oppose , political decisions of the past. When a judge chooses between

the rule established in precedent and some new rule thought to be fairer, he does not choose

between history and justice. He rather makes a judgement that requires some compromise

between considerations that ordinarily combine in any calculation of political right, but here

compete.

The rights thesis therefore provides a more satisfactory explanation of how judges use

precedent in hard cases than the explanation provided by any theory that gives a more

prominent place to policy. Judges, like all political officials, are subjects to the doctrine of

political responsibility. This doctrine states, in its most general form, that political officials

must make only such political decisions as they can justify within a political theory that also

justifies the other decisions they propose to make. The doctrine seems innocuous in this

general form; but it does, even in this form, condemn a style of political administration that

might be called following Rawls, intuitionistic. 18 It condemns the practice of making

decisions that seems right in isolation, but cannot be brought within some comprehensive

theory of general principles and policies that is consistent with other decisions also thought

right. Suppose a Congressman votes to prohibit abortion, on the ground that human life in

any form is sacred, but then votes to permit the parents of babies born deformed to withhold

medical treatment that will keep such babies alive. He might say that he feels some

difference, but the principle of responsibility, strictly applied, will not allow him these two

votes unless he can incorporate the difference within some general political theory he

sincerely holds.

The doctrine demands, we might say, articulate consistency. But this demand is relatively

weak when policies are in play. Policies are aggregative in their influence on political

decisions and it need not be part of a responsible strategy for reaching a collective goal that

18 See A Theory of Justice, Chap.10

individuals be treated alike. It does not follow from the doctrine of responsibility, therefore,

that if legislature awards a subsidy to one manufacturer one month it must award a subsidy to

another manufacturer the next. In the case of principles, however, the doctrine insists on

distributional consistency from one case to the next, because it does not allow for the idea of

strategy that might be better served by unequal distribution of the benefit in question. If an

official, for example, believes the sexual liberty of sort is a right of individuals, then he must

protect the liberty in a way that distributes the benefit reasonably equally over the class of

those whom he supposes to have the right. If he allows one couple to use contraceptives on

the ground that this right would otherwise be invaded, then he must, so long as he does not

recant that earlier decision, allows the next couple the same liberty. He cannot say that the

first decision gave the community just the amount of sexual liberty it needed, so that no more

is required at the time of the second.

Judicial decisions are political decisions, at least in broad sense that attracts the doctrine of

political responsibility. If the rights thesis holds, then the distinction just made would

account, at least in a very general way, for the special concern that judges show both

precedents and hypothetical examples .An argument of principle can supply a justification for

a particular decision, under the doctrine of responsibility, only if the principle cited can be

shown to be consistent with the earlier decisions not recanted, and with decisions that the

institution is prepared to make in the hypothetical circumstances. That is hardly surprising,

but the argument would not hold if judges based their decisions on arguments of policy. They

would be free to say that some policy might be adequately served by serving it in the case at

bar, providing, for example, just the right subsidy to some troubled industry, so that neither

earlier decisions nor hypothetical future decisions need be understood as serving the same

policy.

Consistency here, of course, means consistency in the applications of the principle relied

upon, not merely in the application of the particular rule announced in the name of that

principle. If, for example, the principle that no one has the duty to make good remote or

unexpected losses flowing from his negligence is relief upon to justify a decision for the

defendant in Spartan Steel, then it must be shown that the rule laid down in other cases,

which allows recovery for negligent misstatements, is consistent with that principle; not

merely that the rule about negligent misstatements is a different rule from the rule in Spartan

Steel.

4.3 CRITICISM

The proposition that judge have a weak discretion and that they are to find the right answer

from the principles is unsustainable.19 Critics such as Greenawalt have argues that the ‘denial

of discretion is wrong and is inconsistent with our ordinary understanding of judicial

responsibilities for opinions. To suggest that judges have discretion is not to imply that they

have license to do what they will. The institution of judging offers the judge choice only

within the constraints of judgment.’ Greenawalt argues that there are also examples which

contradict the right theories. For example, in a case of nuisance, the judge may consider the

effect of his discretion on the community before accepting the right of the claimant. Such

cases indicate that judges do decide on policies while determining the rights of the individual.

Dworkin replies that this is not a case of policy but a case where the judge compromises

competing rights. Other critics also criticize Dworkin on the ground that the right thesis

cannot be demonstrated that there is only one right answer to a question. Supposing two

judges are to decide whether Elmer is entitled to inherit his grandfather’s property, they may

answer this question differently from each other and yet claim that each answer is the right

answer. How do we demonstrate that there is only one right answer to a problem. Dworkin’s

answer is that it is insufficient to say that there can be no right answer just because they

cannot be proved or demonstrated. Hart criticizes Dworkin’s right answer thesis as flawed

and vulnerable to criticisms.20 Peter Fitzpatrick called Dworkin’s strategy to give systematic

unity to the legal system and legal practice “Myth Making”. To his critics, Dworkin continues

to build his myth and noble dream. While he began his writing in the early 1970s, Dworkin’s

best known work, Law’s Empire was published in 1986. To Dworkin’s supporters, he is

offering an uplifting image of law. Dworkin challenges us to renew our faith in the law by

recasting the lenses through which we view the role of law and legal practice. In Dworkin’s

word: “We live in and by the law … it makes us what we are …”. Stephen Guest says,

“Dworkin’s Thesis is not his own making but it has been ascribed to him. It can be said that

what Dworkin meant to say was that there is a possibility of finding the best answer.

5. CONCLUSION

On Dworkin’s view, while the legislature may legitimately enact laws that are justified by

arguments of policy, courts may not pursue such arguments in deciding cases. For a

consequentialist argument of policy can never provide an adequate justification for deciding

19 Assertion of Mc Commick.20 Hart described Dworkin as a “Noble Dreamer”.

in favor of one party’s claim of right and against another party’s claim of right. An appeal to

a pre-existing right, according to Dworkin, can ultimately be justified only by an argument of

principle. Thus, insofar as judicial decisions necessarily adjudicate claims of right, they must

ultimately be based on the moral principles that figure into the best justification of the legal

practices considered as a whole.

Notice that Dworkin’s views on legal principles and judicial obligation are inconsistent with

all three of legal positivism’s core commitments. Each contradicts the Conventionality Thesis

insofar as judges are bound to interpret posited law in light of unposited moral principles.

Each contradicts the Social Fact Thesis because these moral principles count as part of a

community’s law regardless of whether they have been formally promulgated. Most

importantly, Dworkin’s view contradicts the Separability Thesis in that it seems to imply that

some norms are necessarily valid in virtue of their moral content. It is his denial of the

Separability Thesis that places Dworkin in the naturalist camp.

Dworkin’s Right Thesis wants us not to relent but to make the utmost effort to get the best

answer. It is a sort of ideal that Dworkin seems to present to the judge in practical pursuit. As

per Stephen Guest, “He (the judge) may not get it right but the duty is upon him to try

nevertheless. Dworkin’s work has consistently been concerned with judicial interpretation of

law and the role of judges. Dworkin is clear as to the political values he is committed to. His

philosophy stresses a ‘Right’ approach over utilitarian calculations.

It is aptly to describe Dworkin’s theory of law lies in the best moral interpretation of existing

social practices. His theory of justice is that all political judgments ought to rest ultimately

upon the injunction that, people are equal as human beings, irrespective of the circumstances.

However, it seems Dworkin is very much influenced by professor Ron Fuller. His outlook of

law come to be colored deeply by ethics and morality as expressed in hi theory and can be

seen in his preferences of principles over rules.

As a matter of fact, all legal principles pertain to the domain of morality. My criticism of

Dworkin’s analysis is that Dworkin sought to merge the descriptive elements with the

prescriptive to the extent that he has sacrificed reality to a noble dream. However, dreams

have their place. They are better than nightmares. This dream looks at what the law can

achieve. It sees a purpose to law rather than a mere instrument for social control. We awake

from the dream refreshed. This is what law is: for the people we want to be and the

community we aim to have (Dworkin Law’s Empire)21.

21 Law's Empire. Cambridge, MA: Harvard University Press, 1986.