Dworkin of Taking his crap SERIOUSLY and of

Turtles.
These are my notes on how to TRULY understand Dworkin.
Dworkin is really serious stuff. Deciphering Dworkin was tougher than all the
jurists in the syllabus put together and more. You really really really have to
utilize all the brain juice you have to read Dworkin. It is also extremely
difficult because there is no master theory or formula. It is just a big
mesh of ideas here and there. So dont worry if dont see the big picture.
However, if it seems that you understand Dworkin without much effort then
either youre not getting it or youre more brilliant than Steven Guest.
You really have to focus when understanding Dworkin but the result is quite
rewarding and relevant to many aspects of jurisprudence and LIFE. These
notes are the result of dwelling on Dworkin for a few days straight and many
many much gin and tonic. To gain the full impact (hopefully with just one
reading) you have to read these notes slowly. And try to take note of
how the theme of finding the underlying purpose repeats itself in
various forms. I do not guarantee that I have fully understood him and in
fact, I may even be totally wrong but here is my take on Dworkin.
You may now begin, young padawan...
In one word, Dworkin is all about INTERPRETATION it sounds really duh!
but you really have to dwell on what it means to interpret something (e.g. a
social practice) and imagine if more than one person were interpreting the
same thing what would the result be? And would all of you be really
interpreting the same thing, or just your own idea of the same thing?
This is both Dworkins genius and also his weakness. This set of notes is
going to be necessarily relatively long compared to my other notes but I do
think it is quite intriguing and a super exercise in brain gymnastics. No prior
knowledge of anything needed just common sense and rational thought.
But then again, common sense is not so common
Before you Dwork your way through Dworkin, it is of rather crucial
importance to have an understanding of the background leading up to his
theory.
Background

Modernity was founded by the Enlightenment, of which one main aim

was to make it possible for humans to see things AS THEY TRULY ARE.
Positivism SEEMED to offer the answer by proffering a value-free and
totally objective scrutiny of the law (via description) so that you can see
the truth. But it is clear now, jurists like Hart, were fudging the issue. Harris
(1980) says his descriptive sociology is a sociology fit for Martians.
It is clear now that there is nothing truly objective about the social
sciences. What is supposedly purely descriptive only is in fact highly
interpretive. Objectivity is actually infused with the moral and political
stance of the observer and there is no such thing as the detached
observer. Interpretation (hermeneutics) is inescapable.
To quote Wayne Morrison:
The world does not reveal its structures, its beingness, to us for our theories
simply to reproduce of picture; the truth of our theories was not a reflection
of the entries of the reality of the world, but the result of an interactive act of
our interpretative faculties as we went about our practical business of living
within and belonging to the world.
So how to you find the truth? The answer is: You cant. You can only
find the truth in reference to something only that is agreed upon
in the first place. In other words, you can only find the truth from one
particular agreed upon perspective. Modern hermeneutics is the
interpretation of action and meaning within a tradition to which that
action and meaning belong; i.e. you only interpret the practice from
within it and from the context of the tradition of that particular practice only.
This is what Dworkin offers. Legal practitioners (insiders) interpreting the
meaning of their legal practice from their perspective of the traditions of the
practice only. Ascertain the meaning of their practice as it means to them
only by asking what is the point/purpose of the practice to begin with
(the underlying theme/rationale). No outside observers allowed.
Dworkin was influenced by Lon Fuller who said that the fundamental
difference between social sciences and natural sciences is that social activity
can only be understood through interpreting it in the light of the meaning it
has for the participants.
With this, you may now begin Dworking your way through Dworkin.
What was Dworkin trying to achieve?

As is with most people, before they set out doing anything, they
actually already have the end in mind. As such, it is easier to understand a
jurist if you know what they are trying to achieve. (I think) Dworkin was
trying to paint a picture of a legal system that is just, fair, and
principled without having to resort to something as controversial as
morality, and it achieves this through fluidity.
His theory of constructive interpretation can be visualized like this:

There are 3 stages:

1. Pre-interpretive (*the usual spelling is interpretative but this is
Dworkins own personal spelling and we shall use it)
This stage is where you identify the practice you want to interpret.
2. Interpretive
This is where you come up with a variety of reasons as to why there is
such a practice and pick a couple of the more likely ones.
3. Post-interpretive
This is where, based on the most likely reason you picked, you modify
the rule/practice to suit currents needs to that it can grow.
For a simple example of this, see the hat-doffing example in the
subject guide. It also helps in understand Dworkin to visualize this example:
Imagine 2 players are playing chess. And one irritating player is
deliberately trying to distract the other by smiling like an idiot. The other
player protests and complains to the referee/umpire. However, this situation
is not covered in the rule book. The referee then has to think: what is the
point of playing chess to begin with? and comes up with various
theories/reasons like to pit wits against each other, to move pretty pieces
on a board to make a pretty pattern, to assert ones (intellectual)
superiority in a civil and gentlemanly manner, etc. Then based on the
reason he thinks most likely, he then decides whether smiling like an idiot
should be allowed or not.
Thus Dworkin is asking the legal practice: What is the point to all this
practice? What is the purpose? What reason do we have for having law? And
according to him, this purpose is already latent in the activities of the
participants. Dworkin is trying to tell the truth of law by working with an
insider view of law and is concerned to retain fidelity to the material.
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Modern institutions and practices have histories; there is no one dominant

perspective but we must treat them as if there was a coherent underlying
rationality.
For Dworkin, law is speaking to us and is written by the community
personified. Law embodies commitment integrity and pursuit of truth. We
must believe in the possibility of a right answer to legal and moral problems,
and nothing irreconcilable and although conflict is inherent, contradiction is
not. The practice of law involves reflection, reflexivity, theoretical
clarification and criticism, the resolving of disputes and arguments,
researching answers, finding the law, and arguing the case law is an
interpretive practice.

How to interpret
Hercules
Hercules is a HYPOTHESIS only (dont argue in exams that Hercules doesnt
exist, isnt realisitic etc because that was not the point of Dworkin positing
Hercules.)
Hercules is a standard of measurement for good or bad decisions. He is
a lawyer of superhuman, skill, learning, patience and acumen who is fully
conscious of his constitutional responsibility.
His constitutional responsibility is that the constitution confers
autonomy upon the courts and if he accepts the settled practice (the
autonomy) of his legal system, he must accept some general political
theory that justifies these practices i.e. the whole point or the purpose of
the system. (For America, according to Dworkin, the whole point of the US
legal system is to protect rights or to protect democracy therefore
justifying judicial coercion in accordance with legislation). *this is on
a large scale; it can go down to a smaller scale, e.g. the whole point of
contract law which would be the theory of consideration.
The main thing that Hercules does is that he can produce theories
underlying the accepted practices of the legal system and of legal
rules. So, based on the case/issue at hand, Hercules will construct political
theories, which are justifications for the rules relevant to the matter at hand.
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Then if there are two or more theories that fit equally well, then Hercules can
look to the remaining rules of the constitution and then see which theory is a
better fit. A successful theory will present the (supposedly conflicting) rules
as a unified coherent body (by reference to the underlying theme/rationale).
Like the Riggs v Palmer case, the rule if literally constructed will
mean that the murderer gets to benefit from the will of the testator whom he
murdered. This does not make sense. Therefore the judge asked himself,
What did the author of the Wills Act intend? Did he intend this? and then
he takes a step back further and asks What is the underlying rationale
beneath all this rules and the common law? He found that there was a
principle that one should not benefit from his own wrong, if he could then
that would go against the whole point of this legal system, and he concluded
that the author of the Wills Act could not have intended it also. Thus, the
murderer was not allowed to benefit.
Dworkin clearly says also that this does not mean that all judges are
supposed to reach the same conclusion. They are supposed to find a theory
that has institutional fit reconcilable with political and moral philosophy.
Different judges have different perceptions of these things but some theories
and preferences will be superior that will fit overall coherence of societys
moral and political development. In time, these superior theories will be
settled law. Legal development is an unfinished project of shaping social
interaction into (a bunch of) principles.
One Right Answer thesis
Law is actually an attitude of mind, and this attitude is
argumentativeness. If two people are arguing, that means that each thinks
that they are right. That means that in their mind, there is a right answer
to whatever it is they are arguing about. The fact that they are arguing
implies that they have accepted that there is a right answer to be
found. Thus the argumentative nature of law implies that there is law to find.
Thus the legal practice necessarily involves the acceptance of the idea
of a right answer. In a hard case, the rules provide no obvious answer. So ask
what is the rationality of the various aspects to the social practices involved?
Then find your answer from there.
Judicial Practice aims for Principled (articulate) Consistency (not
mechanical consistency).

We all know that a previous authority sets the standard. However in a

hard case, the standard cant be applied straightforward. You must consider
what this standard means in the new case. This gives the judge only a weak
discretion and this is an acceptable judicial practice which leaves no gap in
the law. The answer can be found in the arguments presented by the lawyers
and the principles contained in the precedents. In contrast with rules,
principles have a dimension of weight and are not destroyed when
conflicting. Rules operate in an all or nothing fashion either they apply or
they dont.
Law as Integrity
Dworkin talks about 3 different types of conceptions of law.
The conception of law as:

Conservationism look purely are past decisions and apply exactly

(backward looking)

Pragmaticism screw precedents entirely and forget about them, lets

just be 100% practical and deal with the matter practically (forward
looking)

Integrity a combination of both backward and forward looking

elements. It establishes a justifying connection between past decisions
and present coercion. Through interpretation it will show a relationship
between law and morals. (*I think it ties in with the arguments of fit
and substance)

Law as integrity will thus be like a narrative of the unfolding political story
of this particular society.
Law as integrity is displayed in cases like Riggs v Palmer. Interpreting
the statute clearly would not give a fair outcome, i.e. it would not fit with the
political morality of the society. The judge then went and asked himself what
was the intent of the author of the statute, i.e. the spirit of the statute. He
found that the spirit of the statute could not intend such a result and held
that we need not be much troubled by the general language contained in
the laws. Instead one should ask what the real statute is and then he
found his right answer.
This reminds me of the poem by Kahlil Gibran that Dr Anand handed
out which talks about thoughts, will come out half-murdered when

expressed in words. The poem used the imagery of a bird trapped in a cage;
the bird being the true thought or expression and the cage being words that
end up trapping true thoughts. Thus, when reading a statute, we only see the
cage you must open the cage and talk to the bird and ask the little birdie
what it wants to say. Tweet, tweet.
Fit and Substance
A legal argument is always a tension between two dimensions of
argument:

A fit with settled law; and

substance an issue of political morality.

Dworkin was heavily influenced by Lon Fuller and Fuller did talk about a
morality of aspiration whereby society is at its best and is excellent. I
personally think that Dworkin thereby meant political morality to be the
morality of aspiration of the particular society that the legal system is in. It
is definitely not some political manifesto of some political party
whatsoever although there could be a connection between them. The idea
of a political morality tends to be more encompassing in nature and
represents the aspiration of the people in general but not the type which
religion espouses that have utopian connotations. For example, the political
morality of Nazi Germany would have been ideas of the superiority of the
Aryan Race. Thus a Nazi judge must make his decision fit with past
precedents and also help further this political morality of the Nazi society.
But otherwise in a normal moral society, the usual kinds of political
morality will contain virtues like fairness, justice for all,
reasonableness, etc. These are the substantive arguments.
The law is an unfinished project The Chain Novel
This ties in with law as integrity as well (see how Dworkin puts his stuff
everywhere?). Interpretive judgments combine backward and forward
looking elements. Hercules must impose order on all the backwards and
forwards that is going on in law. He must make sense of what has gone in the
past so that this project can be developed and given life for the future.
This is very much like writing a chain novel where the next writer
(building upon the work of the previous writer) must consider factors like the
theme, plot, coherence, and characterization. It is the same for the law. The

new writer has an obligation to write something that fits while adding new
material (again to do with fit and substance what did I say about
Dworkin throwing his stuff everywhere?).
This tells the story of societys development and growth in modernity.
The judge must strike a balance and neither put too much faith in the past
nor rush to fulfil community goals/aspirations. Integrity is the inner morality
of law (see the influence of Fuller on Dworkin?). Law as integrity links
community aspirations and individual professional concern. This is
constructive interpretation.

Summary of How to interpret

Before this, we saw how an interpretive stance is better than the
flawed descriptive stance. Since interpretation can be so subjective and
relative, Dworkin avoids a nihilistic relativism (self-defeating i.e. pointless
since everybodys equally valid and theres no right or wrong etc.) by
restricting interpretation only from the insider point of view and what
meaning the practice holds for them only. That way, the truth of law can be
ascertained (at least where legal practitioners themselves are concerned). So
he espouses a theory of constructive interpretation.
And how to do this interpretation is as follows:
*Note: this is my view of how Dworkin says we should interpret and Im
trying to compartmentalize as neatly as possible Dworkins big mesh of stuff
here and there. He throws in rights as trumps and all that but Ive put that in
a different compartment for later. The point is that I may be wrong but this
is the neatest way to Dwork and to criticize him later.
1. You must try to be like Hercules and construct political theories
(justifications/reasons) that underlie the bunch of rules that are
relevant to the issue at hand.
2. In doing so, you must accept that there is a right answer because
the argumentative nature of law implies that there is a right answer to
find.
3. The law is consistent but not in a mechanical way but in an articulate
way. Try to find the real statute or common law maxims as the case
may be. Principles can conflict due to their having a dimension of

weight. Which principle overrides is a matter of substance wherein

you take into account things like political morality.
4. After doing so, your decision must have integrity. It must fit past
decisions as well in addition to it having substance. Thus, the right
answer is one that retains fidelity to the law yet promotes the
aspiration of the society that it serves. Or simply put, puts the law in
the best light.
5. Law is like a chain novel. This is Dworkins constructive interpretation.

Political Morality
Political morality features quite prominently in Dworkins theory and
there are many ideas as to what it is, but I think it is roughly this. The fact
that it is called political morality therefore means that it is definitely not
morality like we mean in the everyday sense, e.g. be a good person etc,
but it does influence this concept.
Like I mentioned earlier, it seems to stem from Fullers idea of the
morality of aspiration. It is not a moral standard per se but rather
representative of the aspiration of the people regarding the way they wish to
be governed and what they want to achieve as a community rather than
individually. Political morality can be determined by asking what was it that
the people instituted the legal order for in the first place?, what were they
trying to protect or guarantee?, were there any sort of rights that existed
before the legal system that they wanted enshrined?
Thus, you can see that political morality differs from society to society.
And the political morality of the US seems to be, as Dworkin put it, rights as
trumps. That is what the Americans hold as fundamental and important. The
political morality of a fundamentalist Islamic state could very well be the
opposite, e.g. Quranic principles as trumps over individual rights. Perhaps
Malaysias political morality could be, assuming BN governs for another 100
years, Malay rights as trumps.
However Dworkin talks so strongly about rights as trumps as if it was
an essential feature in his theory. I personally feel that it is only a political
morality that he espouses which is particularly true in the US but tries
nonetheless to extend it to states that practice Democracy. But all in all, I
think it is just the political morality of the US but since he features it so
prominently, we will consider it below.

Rights as trumps
For Dworkin, rights must trump over policy considerations. This is the
basis of any or most democratic states. Im sure we are all familiar of the
arguments of separation of powers and why the judge shouldnt give priority
to policy because he not an elected representative etc. The judges job is to
determine the rights of the parties before him, not legislative policy
considerations, and enable individuals to have this secure social space (the
court) wherein they do not become pawns of utilitarian/policy objectives.
In allowing rights to trump, the judge displays moral integrity and is
faithful to the rights of the parties. Principles are an internal and integral part
of the law and law is a seamless web of principles, and the underlying
rationality of all these principles is the protection of rights (at least
in a democratic state).
Dworkins rights thesis has 8 propositions:
1. Every legal system has a dominant political philosophy (in US: rights as
trumps) that gives coherence and unity to it (the legal system).
2. This philosophy is expressed in the values and traditions of the law. You
can find it there.
3. A political system (perhaps he means society) is also made out of legal
principles which express the dominant political values
*A funny example would be The Snail Darter Case where the court
ordered work to stop on a nearly completed dam which cost US$100
million in favour of the protection of the Snail Darter conferred by The
Endangered Species Act 1973. The Snail Darter is a 3 inch fish of no
particular beauty or is of any significant biological or ecological
importance. The court decided that the rights of an ugly 3 inch fish of
no importance should trump over the building of a US$100 million
dam. So the principle here is that everyone (or thing) must be afforded
equal protection under an Act that confers it to them this principle is
an expression of the underlying political philosophy of the US society
that rights must trump (the dominant political value).
4. Rules differ from principles in 3 ways:

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Principles emerge slowly (as opposed to rules) and are refined,

extended, amended, reduced as cases come before the court.

Principles have a dimension of weight; they do not apply in an all

or nothing fashion.

Principles can conflict and offer guidance in opposite directions.

This is just a matter of judicial craftsmanship.

5. The judge does not have an uncontrolled discretion. He is constrained

by principles and the political morality of society.
6. There is always a right legal answer. The argumentative nature of law
implies it.
7. The judge must, as far as possible, emulate Hercules. He is the best
interpretation of actual legal reasoning.
8. Every judge has the obligation to aim for the right answer.
Evil Legal Systems
As we have seen how we are supposed to apply constructive
interpretation, Dworkin still adds a further dimension to his theory. In
applying constructive interpretation, you may get the grounds of law, but
these grounds nonetheless have varying degrees of moral force to it.
*This, I think, is Dworkins way of trying make his theory fit to accommodate
evil legal systems as well. Because of the way he has described political
morality, an evil societys political morality would still be just as valid and
important as one from a moral society. But he wanted, from the beginning,
to paint a picture of law as very fair, justice, principled, etc. Thus he now
adds another element to his theory (which seems quite groundless) and talks
about law, despite being validly identified by constructive interpretation as
the theory that puts it in the best possible light, as also having a moral force.
According to him, producing theories/justifications from grounds of law
does not also mean that you thereby endorse it (but then why produce them
in the first place?) Thus a Nazi judge who produces, based on past decisions
and arguments of substance, produces full-blooded political theories (of
Aryan superiority) is not a 100% bound to carry it out. Any structure of
community power will have some moral force. And determining whether the

11

community has the right to use this coercive force depends on moral
arguments.
Thus, Nazi law is valid law but the judge is not inevitably bound to
carry it out. He has to determine the moral force of such a law first.

How to criticize Dworkin!

*I shall leave the standard and rather weak criticisms of Dworkin out. At this
point you may want to stock up on brain juice or however/whatever it is that
gets your brain running.
Dworkins enterprise is about constructive interpretation. But what
provides the foundation for this enterprise? The answer is TURTLES!
[An Englishman] having been told that the world rested on the back of an
elephant which rested in turn on the back of a turtle, asked What does
that turtle rest on? Another turtle. And that turtle? - Ah, Sahib, after
that, it is turtles all the way down.
(Clifford Gleetz, The Interpretation of Cultures, 1973:29)
Dworkins interpretive/hermeneutic framework manages to avoid
relativity (nihilism) by keeping the idea of purpose as it means to the
practice only. He states that an interpretive attitude necessarily assumes
that practices have value, or has a point to it. The point of the practice is
made clearer and the interpretive attitude thereafter imposes meaning, by
seeing it in its best light, and then restructure/reform/modify it in light of that
meaning.
The 3 stages used (once again) are:

Pre-interpretive this identifies the practice to be interpreted.

Interpretive justifies why the practice is worth continuing.

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Post-interpretive reform according to established justification. This is

a self-referential reform whereby the justification comes out internally
from the practice, not from outside observers.

However, the problem is that identifying what is law, i.e. the practice to be
interpreted is subject to so many diverse views. How do you know whether
you have correctly identified the right thing? Identifying law again is subject
to interpretation, i.e. depends on whose interpretation.
Dworkins reply is that we work from an internal perspective and the
interpretive practice is founded on the basis of general agreement
(consensus) among the internal players (legal practitioners) of what law is
about. His interpretation, he claims, is true to the nature of practice, and
excludes sceptics (outside observers).
We shall show that this is not true and act like we are smarter than
Dworkin. We need to look at the first 2 stages of the interpretive process.
1. Pre-interpretive identifying the practice/laws (the object)
The process of identifying itself is an interpretation. There is no such
thing as objectively identifying something like a social practice. Nonetheless,
Dworkin avoids this problem by saying that we identify it by constraining our
interpretation of this object as law as identified by the traditions and history
of the legal practice. The flaw of this argument is as follows:
First, the paradox of interpretation:

You cannot begin interpretation without established facts.

There can be no facts without interpretation (because the process of

identifying facts is an interpretation itself).

Dworkin admits at the very beginning itself that a value-free

(objective) identification is impossible; it is implicitly value laden. So in
reality there is no pre-interpretive stage. However, he goes around this by
saying that we identify the object (law) by the consensus of what the law is
within the interpretive community (legal practitioners). BUT SUCH A
CONSENSUS MAY NOT EXIST.
This consensus is a defined object that is constrained by the
requirement of fit (has to fit) between the interpretation (of what the object
is in the first place) and the (legal) practice. Therefore you need to know the

13

essential features of the practice (which again is another pre-interpretive

stage subject to the same complex problems). But the practice does not
announce to everybody what its essential features are; you have to again
interpret what those features are.
The definition of the object and making a good fit is mediated by
theory. This is hardly objective even if you are only working from the
internal perspective. Dworkin refuses, or perhaps cannot, analyse the
conditions under which this supposed consensus comes about.
2. Interpretive the defined practice integrated with a purpose (or
trying to discover the point of the practice)
The aim of such an integration or interpretation is to ask: Does the
theory/reason make the object the best it can be?
But the object itself was an interpretation of the interpreter in the first
place therefore already imbued with the interpreters own preconceived
notion of what is the best light from the very beginning. Thus, the
object was identified based on and influenced by what the interpreter
already had in mind as its best light.
Dworkin realises this internal disagreement of interpretation and says
that it is in fact desirable but puts an operative bind/restraint on the
interpreter to find a good fit by between valued purpose (what the best
light is) and the paradigmatic features of the practice (the object).
So there are 3 things here:
1. A good fit (which purpose puts the object in its best light)
2. Identification of the pragmatic features (the practice to be
interpreted/object)
3. Valued purpose (the point/purpose of the practice)
This can only work if items 1 and 2 are conceptually INDEPENDENT of
the hypothesis of item 3. However, people being people, this is not possible.
All 3 items are all interpretive and are interpreted BY THE SAME
INTERPRETING MIND. No strong distinction, by the interpreter, of these
operations is possible. The standard of fit that one adopts will reflect ones
own judgment as to what lends value to the practice.

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Thus, the distinction between correct and false interpretation collapses

and in fact there is no interpretation; only invention.
So Dworkins solution of excluding external sceptics does not salvage
his thesis from nihilism. He excludes the external sceptics by calling their
perspectives as silly, wasteful, confused, and to no point. But at the
least, while the external sceptic may defend and hold his own interpretive
stance as passionately as the internal practitioner, the external sceptic does
not maintain that his perspective is true understanding; but Dworkin does so.
We must thereby, according to Dworkin, assume the existence of a right
answer unquestioningly. His arbitrary silencing of outside opponents renders
his own thesis arbitrary and a mask for interest based interpretation, i.e. it is
actually the theory of what Dworkins thinks is law. The truth of his theory is
therefore suspect and for Dworkin... it is turtles all the way down.
(* you may applaud me now :D)
To summarise this criticism:
1. Pre-interpretive:
Identifying law itself in an interpretive act. But Dworkin counters this
by saying we shall take law as determined by consensus among the legal
practitioners thereby shutting out any external perspectives of what law
is. Therefore we have a working definition of what law is to start our
interpretive process.
So since Dworkin says we shall use consensus within the legal
practice of what is law to identify law, we need to find/determine this
consensus. To determine it is to find a good fit between the
interpretation of what is law against the essential features of the legal
practice.
But the legal practice does not announce what its essential features
are. To determine what these essential features are is yet another
interpretive process.
2. Interpretive
Supposing now we have identified the object (law) to interpret, we
now need to ascribe value to it; in other words, come up with theories as
to its purpose. In doing so, we need to ask: does the theory make the

15

object the best it can be? i.e. come up with a list of purposes and find
the one that puts the object in its best light.
However the identified object was an interpretation to begin with.
Wont the person identifying the object therefore identify it according
to an already preconceived theory of the best it can be? Thus, already
having the theory in mind, to him, that makes the object the best it can
be, his identification of the object is biased. He will identify the object
as one that already suits his pre-conceived theory.
Dworkin tries to restrict this by putting a bind on the person by saying
that he has to find the best fit between what the best light is and the
paradigmatic (essential) features of the object.
This can only work if 1. identification of the essential features of the
practice, and 2. what the best light is are conceptually independent (not
influenced by or influences) from the process of coming up with a list of
purposes. This is really not possible. Ones idea of what the best light is
is really a reflection of his judgment of what the purpose of the object is
which he already believes even before starting all this.

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