HUMA 1825 Note
- Thursday, December 6th Lassonde A, 9:00 A.M. till 11:30
- Last Lecture: Monday, December 3 : last day of classes.
- November 26 : Test on Fuller, Dwarkin, and the three cases. Also Note
Appendix 3, which gives the amendments to the US constitution. This is
relevant to Dwarkin and the Dronenburg case.
- Like Fuller, a formidable opponent of legal positivism
- He’s still alive. Born in 1931. He’s a participant in political and legal life.
- He’s considered one of the most illustrious contemporary legal positivists.
- He’s engaged with legal and political theory: comments at length about the
US Supreme court, judges, the intensely political issues in the US, and he
writes many books and articles.
- Believes in liberal politics and is a natural theorist.
- He’s critical of Hart’s rule-based law.
- Page 155: the editor’s head note of the article:
o Dwarkin seeks to expand Fuller’s point, arguing that fundamental
values of fairness are implicated in every legal decision.
o Positivists make bad decisions, when they try to make moral
judgments of fairness.
- Hart first met Dwarkin when he was a law student at Harvard. Visiting
professor. He found Dwarkin to be a brilliant opponent.
o He spent most of his life trying to answer Dwarkin’s criticisms against
Hart’s legal positivism.
- The significance in Hart v. Dwarkin is that they’re talking across purposes:
they have different ideas of law and morality
o Hart believes that the concept of law is predicated on the separation
of the law and morals
o Dwarkin believes that his understanding of law and integrity “the full
law” is predicated on the integration of law and morals.
o Both Hart and Dwarkin are interested in how the law changes through
adjudication: what judges do when they interpret the law.
Distinguished between laws changed through legislation.
o Dwarkin: theory of judicial interpretation.
o Hart knows that judges use core and the penumbra when deciding
When the rule of law runs out, when it doesn’t cover off the
facts of the case.
What makes these cases hard is that there is no law to call it
o Each of these has a different theory about what happens.
Hart: judges in a hard case make their own choice, what
“ought” to be the law. Sometimes that includes a moral “ought” Thus, judges legislate.
- Dwarkin: judges don’t make laws; he thinks that they “find” law.
o He thinks that every time the judge finds law, they use the “moral
principle” in order to do so.
o This distinction has contemporary resonance: the argument between
activist judges and judicial restraint judges (they decline to legislate
from the bench)
Dwarkin’s Idea of Interpretation and Integrity of Law
- He returns to the ideas consistently.
- 2011: Justice for Hedgehogs
o Refers to Isaac Berlin and wrote an essay called “the hedgehog and the
fox”. The fox knows many things (runs around), whereas the
hedgehog knows only one big thing (its head is in the ground)
- Dwarkin thinks there’s an overarching framework for moral truth. There is
unity in ethical and moral values. Truths don’t conflict in the domain of
morality any more than they conflict in science. Therefore, he’s a hedgehog.
o He says: by ethics, he means what we owe to ourselves. By morality, is
what we owe to others? The first challenge is to live well. To take our
own lives seriously, and ensure that our own lives are “successful
performances, rather than wasted opportunities.”
o Secondly, we have to be concerned how our living well connects to
what we owe to other people
Respect and concern to other lives
o The truth to living well and being good, is not only coherent, but is
mutually supportive. He ties this project of living well and being good
to Aristotle’s project of good. Aristotle treated morality as a kind of
interpretation. This means that law and literature is also an
- Dwarkin says that the interpretive endeavor (the action of explaining the
meaning of something) is everywhere. He insists furthermore, that this
interpretive endeavor contains truth.
o He says we are all, all the rime, engaged in interpretation:
Conversation: meaning and signification of what is being
- For example, Sociologists and anthropologists interpret cultures and
o Historians, events
o Critics; poems and plays
o Religious figures; sacred texts
o Lawyers, documents, statutes
o Judges interpret the law. \
- There are three kinds of interpretation:
o Collaborative: the kind that occurs in law and literature between the
text and the reader (interpreter)
o Exclamatory: occurs in history o Conceptual: occurs in philosophy
- He then makes a further claim in saying that where legal judgment is
concerned, there is actually a “best” interpretation. There is only one right
o In saying this, he is in direct opposition to Hart: in the penumbra,
where there is no settled law, the judge makes a choice between and
among plausible alternatives by exercising discretion.
If a judge sent an accused criminal to jail, or awarded a huge
verdict against a civil resentment, and then decided that other
interpretations of the law that would require other decisions
would be just as valid as his own would find this outrageous.
When a judge is deciding the case, the judge is NOT
exercising discretion, the judge feels as if they’re finding
the truth. The decision they come up with is the best
- Dwarkin’s law and integrity: he makes analogies between law and literature,
and thinks that the enterprise of both law and literature aluminate each
other very well.
- When a judge decides a case, they try to do so on the assumptions that there
are a string of cases created by the community as the entity. They express the
community’s ideas of fairness and justice.
o The judge inserts themselves into a line of cases. By making a
decision, they transform that “chain of law”.