Dworkin’s Interpretative Theory

A. Key Characteristic: Legal interpretation requires the making of moral judgments.

- This doesn’t discount positive laws (which may be unjust), it simply assert that morality will
have a significant influence over the way rules (including positive laws) will be understood.
 Laws are not limited to “rules (statutory codes, judicial decisions, and other official
documents) explicitly adopted as authoritative by the political community.” It isn’t just
a collection of norms or the result of power politics (not just based on how people act
and how the people in power decide). It is an expression of the philosophy of the
government.
 Moral principles of the fundamental purpose of the government and its relationship
with its people; serves as a legitimate basis of legal decisions and a guide for the
interpretation of legal rules in hard and unclear cases. Laws are explicitly adopted rules
PLUS the best moral principles behind these rules.
 How to determine the “best moral principles” behind explicitly accepted rules? A
person must judge for himself/herself which “fits”:
 Fit is a matter of logical consistency. It doesn’t have to be completely consistent
(impossible to expect), just with MOST of the rules to show to reflects the
philosophy of the government.
 Fit must be a principle that justify the rules. It must explain how it’s a good
explicitly adopted rule.
 Persons will disagree over what is morally best. Morality is always a point of
contention. Deciding as an individual might mean an incorrect legal outcome but a
judge under Dworkin’s would act in good-faith to determine what is morally best.
B. Example: 4th Amendment
- “The right of people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures” by government.
 Logically consistent and explain how the rule is a good one:
 Not about government using whatever means to detect criminal activity. Not
logically consistent because if this was the principle, there should be little or no
limitation to search for possible crimes.
 About the principle of privacy (both in the physical and informational sense) and
people’s consent to give it up. Not an absolute right but there needs to be a basis for
it to be taken away.
- Olmstead v. United States (1928) allowed wire-tapping because privacy was understood
only as “searches and seizures” which are simply physical manifestations of privacy.
- Under Dworkin’s theory, the moral principle of the 4th Amendment is to protect privacy
(so the person can protect himself from others who might wish to do him harm) and
informational aspect of privacy is just as relevant to this principle as its physical on.
- The right to privacy can also be understood dependent on the intimacy of the information
to the person (i.e. contraception or abortion v.s. drug testing)
C. Criticisms and Responses

Criticisms:
People will be skeptical of the law. The moral
disagreements of people will be unavoidably
played out in the sphere of legal interpretation.
This will cause disputes over interpretation and
what is right. There is no right moral answer.
Responses:
Disagreement doesn’t mean there is no right
answer. People disagreed about the position of the
earth but it was still correct so say it’s not the
center of the universe. (However this doesn’t
respond to the concern of skepticism of the law

External Skepticism: No objective standard to
determine what is true or false for morality.
Unlike statements of empirical features of the
world, morality has no basis that is universally
accepted as a standard for it.
Problem this argument poses: How is there moral
obligation when the world is comprised of
empirical facts? Where do obligations come from
and what is the authority that obligates us? Are
these obligations real? The only basis we can
measure this with in the world is empirical facts
and there is none with morality.)
(Though it isn’t just about the lack of empirical
facts. It is also about weighing the competing
modes of moral argument)
*** But isn’t empirical standards what the critics
are trying to weigh these differences with? It’s not and genocide)
as if you just compare one mode of morality with
one empirical standard. It’s about comparing
different modes of morality with one empirical
standard to ascertain which one is more correct.
and it’s possible deprecations.)
This rests on the false premise that there needs to
be fact to understand what is right or wrong and
that empirical standards are necessary to resolve
such disagreements. It is possible to be
meaningful and reasonable without empirical
facts. “torturing babies are wrong” – wrongness
is perceived differently from a question of height
but it is still possible to reasonably argue why it is
wrong.
(Correct to argue that reasoning for moral
questions will always be different from empirical
one but this doesn’t respond to the multiple ways
people can reason morality.)
(Could have simply accepted that the basis of
moral theory is an unproven assumption that
there are right moral answers. It is a reasonable
assumption that there is right and wrong: torture
*** Is it really a safe assumption when there are
clear grey areas (Torture in times of war)

Internal Skepticism: The best moral principles Dworkin disagrees with the assessment that there
aren’t enough to separate law from power are contradictions in law and that it is oppressive.
politics. The legal system is fundamentally unjust
and oppressive because the system promotes the
interests of the wealthy and privileged at the
expense of the rest of society. Different rules
reflect incompatible moral viewpoints. There are
moral contradictions and inconsistencies.

D. Assessing Dworkin:
- Differences with:
 Aquinas: traditional version of natural law theory identifies unjust rules as invalid
rules.
 For Dworkin, positive law can be unjust but how it will be understood will use
morality.
 Fuller: principles of legality are sufficient to create prima facie obligations to obey the
rules of any system of positive law. You follow the law because of the position of
legality of such rules.
 For Dworkin, legal obligation roots more of the integrity of the law because it is
based on the best moral principle.
- Assuming but not conceding that cases require moral judgments of individuals, it does not
give judges the authority to decide using their own moral judgment. The correct moral
judgment doesn’t mean the correct legal answers. One alternative is to rely on judgment
widely accepted in society.
  Dworkin: The integrity of the law is the result of correct morality. What is widely
accepted doesn’t necessitate correct morality. There is no assumption of good-faith
when dealing with society in general. Integrity might not assure justice but it
guarantees that morality, to some degree, is used to determine the law.
 Dworkin never explained why law needed to be determined by morality. He explained
that laws should not be mere products of power politics but never explained why it
can’t be just that.

Legal Positivism

A. Key Characteristic: Rejects the idea that genuine law is a just law. They reject the necessary link
between positive law and morality. Law does not need to meet any moral test.
- Austin: superior alternative to Blackstone and Aquinas’ traditional natural law theory.
- H.L.A. Hart: developed version of positivism that addresses the flaws of Austin’s version of
it.

Austin’s Theory of Law

A. Key Characteristic: Law as Command. Laws are rules laid down by superiors to guide the
actions of those under then.
- Laws impose obligations on those whom it covers. They are liable to have undesirable
actions done unto them if they act contrary to said commands.
 Commands by God: divine laws with moral obligations (heaven and hell).
 Commands by political rulers: positive laws with legal obligations (jail).
 Commands by society in general: Positive morality which are informally accepted by
society (low opinion of offenders)
- Positive laws: laid down and enforced by the sovereign of an independent political society.
Sovereign is the supreme power (It is defined by power and not morality. It does not need to
claim to be just). Obeyed by people but doesn’t obey any other earthly power.
- The question of the existence of law is separate from the question of it merit/demerit. To
say that positive laws which are inconsistent with divine laws (morality) are not laws is
absurd because the most pernicious laws are enforced by judicial tribunals. To proclaim
that unjust laws are void will lead to anarchy. A wise benign rule will be similar to a stupid
tyranny.
- Positive morality is an important source of positive law.

*** But doesn’t this concede that morality is the basis of law since positive morality comes
from the collective morality of individuals as well?

B. Example: International Law

- Rejects international law as law. There is no global sovereign to enforce the commands.
Positive morality at best, with no legal obligation.
C. Criticisms and Responses

Criticisms: Responses:
To claim that pernicious laws will still be
implemented is value neutral because natural law
theorists agree. The question is: does the
implementation of it assume validity given that it
 goes against morality? It is not enough create
validity for the law by punishing those who
believe it unjust and invalid. It is an illegal
employment of brute force.
The argument that traditional natural law theory Anarchy will result from natural laws theory.
invited anarchy is questionable. It assumed that There are too many conflicting ideas that it
law should be judged based on its practical cannot result to moral progress.
consequences.
(shows the difference with Aquinas’ medieval
*** And comparatively, it’s not like people won’t society which had a collective moral belief based
cause anarchy if laws that are being imposed are on the Church and Austin’s modern society which
pernicious. was more secular and diverse in its moral beliefs.)

The bigger consequence with the natural law

theory is the progress achieved by the rejection of
unjust laws. This can outweigh the disorder it
might cause. Disobedience and conflict can
sometimes result to moral progress (Civil Rights
Movement and Matin Luther King)

Hart: Laws as Primary and Secondary Rules

A. Key Characteristic: There are different types of legal rules.

- Some legal rules cannot be completely understood as a command. While criminal law
(which prohibits certain actions) fit the command characterization, some legal rules
empower individuals to do things that would normally be impossible to do.
B. Example: Contract law
- It empowers individuals to enter into legally binding contracts. While they can still agree, it
isn’t legally binding without the rule of contract law.
- Power conferring rules- empower both individuals as well as public officials. Gives people
the power to enforce contracts and judges the power to interpret the law.
C. Criticisms and Reponses:

Criticism:
Still like commands in an important way: the goal
is to alter the world in some way instead of simply
affirming the way the world is. Even the power-
conferring rules seek to change society by
empowering individuals.
Also, power conferring rules are still issued by the
sovereign. They allow people to enter contracts
and write wills. It is still based on their say so.
The lack of delineation of declarations from
commands of the sovereign doesn’t mean that it
cannot be explained in the terms of the power of a
political sovereign.
Fear of the consequences is the primary motivator
of individuals to be obliged to act in a certain way.
Responses:
Legal obligation cannot be limited to commands
backed by threats because this is equitable to a
gunman. While a person might comply and give
his money to a gunman in fear of undesirable
consequences, it does not mean that he had the
obligation to give his money. Being OBLIGED to
do something is different from being OBLIGATED
to do it.
(Natural law will understand the distinction
between the gunman and the sovereign as
morality)
Obligation must be explained in terms of the idea
of a rule. And a rule exists when people generally
(1) act in a certain way, (2) deviation from that
way of acting is something to be criticized.

How can international law constitute a genuine
legal system if it requires the unity of primary and
secondary rules? Specifically looking at the
Nuremberg trial.
The extreme case scenario (with fear being the
sole creator of obligation), which Hart still
recognizes as legitimate, is still comparable to that
*** Sounds a lot like morality. Given people act a
certain way based on their idea of divine
law/morality, then the rule can only call on
obligations when it is moral for the collective.
There must be a great deal of social pressure to
conform to the rule. The rule must maintain a
certain aspect of society that it regards to be
important which can sometimes require
individuals to act against their own self-interest. It
isn’t solely fear that motivates people to follow
primary rules (this can happen only in extreme
cases; which is still legitimate) but with the
regards that its violation is something to be
criticized.
A genuine legal system requires a unity of primary
and secondary rules
Primary Rules: Rules imposing obligations.
Identified by society (Common laws. Social norms)
Secondary Rules: Cannot exist unless there are
rules that impose obligations.
1. Rule of Recognition- a rule that singles out
the rules that actually impose obligations
in society. People must recognize the rules
which they will be made accountable.
Diminish uncertainty over people’s
obligations.
2. Rules on how legally valid rules can be
changed- adapt to changing conditions.
3. Rules to empower specific individuals to
enforce and apply society’s legally valid
rules- ensure that obligations being
imposed are met.
People must generally comply with the legal
primary rules and officials must accept the
secondary rules and enforce primary rules
(identified by the rule of recognition). This means
that public officials must regard the departure of
these rules as something to be criticized.
The existence of a legal system is a matter of
degree and not all or nothing. The absence of
secondary rules means that the Nuremberg trial
wasn’t enacted by legal system (given that it was
incomplete). But it is the best feasible way to
promote the establishment of an international rule
of law (since it enforces primary rules and
attempts to create secondary ones)
The government isn’t as arbitrary as a gunman.
There is basis for the primary rules which is what
they uphold with the secondary rules.
of a gunman. Positive law ultimately stems from the exercise of
power by some human agency. Morality does not
necessarily regulate it. Hart separates himself
from Austin by affirming that the rules of positive
law themselves empower specific individuals to
make, enforce and apply the law. They direct the
sovereign on how those tasks must be carried out
(secondary rules).

Possible to have a sovereign that acts arbitrarily

Difference of the gunman and the sovereign is the
power they hold: which is why one can only
oblige a person to act but not impose legal
obligations.
but it is also possible to have a different kind.
Unlike the gunman, this sovereign is limited by
secondary rules.
Both the arbitrary sovereign and the gunman are
on the same side of the line because they both
have arbitrary power.
(Never explained why it is more relevant to
account the use of power instead of who is
wielding it. He only provided for a method to
address the need to counter arbitrary use of
power, through the secondary laws, but never
why it was necessary. Natural law would say that
it is because the use of power calls on a prima
facie force of morality. It identifies what is right or
wrong.)

Summary: The dividing line between Natural law and Positivism centers around the concept of legal
obligation (how it is understood, how it is enforced, and is morality necessary)

Hart’s International Law

- Connection between “threat backed by an order” with “morality” but there is a danger of
exaggerating it and blurring the difference of law and other means of social control. Though the
union of primary and secondary rules has this possibility, it is a sufficient condition for the
application of the term “legal system” but not “law”.
- It is the nature of law and not the definition of law that must be assessed.
Example: German case: certain laws should not be considered as valid due to their moral
iniquity.  This must be rejected. Not because all rules in a system must be called laws or the
weight of usage. It must be rejected because the exclusion of what is morally iniquitous will
narrow the class of valid laws but not advance or clarify theoretical inquiries or moral
deliberations.

A. International Law
- International law isn’t structured similarly. It lacks “legislature, courts with compulsory
jurisdiction, and centrally organized sanctions”. This makes it more of a social structure
(primary rules of obligation) than law (lack of secondary rules of (recognition, change, and
adjudication).
- Is international law really law? Not dismissing the doubts caused by the current use of
terms (order backed by a threat/secondary rules) and will not affirm the existence of the
 union of primary and secondary. Look at the detailed doubts a will a wider usage of
“international law” obstruct any practical or theoretical aim.
- Some think it’s a question of accepting the current model/understanding of international
law or moving away from it.  Too shallow. Must also look into what principles have
guided it to its existing usage.
B. Doubts
- Laws as commands backed by threats
How is international law binding? How is
something binding? It is a valid rule which a
person has an obligation or duty to follow.
Confusions with occupied Belgium.
Absence of centrally organized sanctions.
Nature of law begins from the assumption that
its existence makes certain conduct obligatory.
Municipal systems have provisions which are
necessary (such as prohibiting the free use of
violence and provisions for the official use of
force as a sanction). Why are they not
necessary for international law?
This, however, is a question of law arising
from within some system of law. It doesn’t
question the validity of international law,
simply the scope of it.
Assuming that Article 16 of the Covenant of
the League of Nations and Chapter VII of the
UN Charter cannot replicate the sanctions of
municipal laws because it can easily be
paralyzed by a veto…
The argument still assumes the obligation
theory of orders being backed by threat.
Even municipal rules, which have effective
organized sanctions, need to differentiate
external predictive statements (I am likely to
suffer for disobedience) and internal
normative statements (I have an obligation to
act a certain way). The latter assesses a
person’s situation from the point of view of
rules as guiding standards of behavior. Not all
rules call for obligation but the ones that do so
call for personal sacrifice, conformity, and
criticism of deviation. There is no good reason
to limit the normative idea of obligation to
rules supported by organized sanctions.
Different environment and context.
In a municipal setting, individuals have
approximately equal physical strength and
vulnerabilities. Physical sanctions are
necessary (so the ones who do follow the rules
aren’t victims for doing so, no natural
deterrence because the crime can be
hidden/easy to escape, easier to commit a
crime because the other is an approximate
equal, and simplest form restraint) and
possible (it can be used with small risks but
adds to what other natural deterrence there
may be)
The use of violence between states must be
public. The risk of war is high because it isn’t
predictable but the costs are great. Fear isn’t
the only factor given there is already a strong

- States are incapable of being subjects of legal obligation.
A state which is a sovereign should not have
obligations. It is inconsistent to say that a
sovereign is subject to law. It is a Being
inherently lawless but the source of laws.
The notion of sovereignty is not applied on a
legislature or a person within a state, but the
state itself.
In a municipal system, we assume there must
be a sovereign legislator with no legal
limitation. With international systems, we
assume it must be able to respond to
sovereigns incapable of legal limitation save by
natural deterrent.
There general pressure of conformity to these
rules which makes it obligatory: a breach of
such laws can justify the demands of
compensation, reprisals and counter measures.
(only efficacious if there are willing parties to
launch counter measures but this doesn’t
discount that organized sanctions aren’t a
necessity in international law unlike municipal
laws)
“A state” is not “by nature” outside the law. A
state refers to (1) a population within a
territory under an ordered government
provided by a legal system (legislature, courts,
primary rules) and (2) government enjoys a
defined degree of independence (some are
dependent: federal states of the US, colonies,
protectorates, etc. some have legislature which
reflects their dependence but not all.
Dependence will be reflected in other ways
such as limitations of powers to internal affairs
or a puppet government).
There are many different international
authority and limitations on the independence
of states.
The differences are important because it
addresses the idea that sovereigns cannot be
bound by international laws. Sovereign now is
simplistically understood as independent, not
subject to types of control, and has an area of
conduct that is autonomous.
While a certain degree of autonomy is
important, it does not mean that it must be
unlimited. States can only know if they are
sovereign and by what degree they experience
it if there are rules which identify them as
such. While international law is vague and
more space is given to municipal law to
identify a citizen’s freedom, it doesn’t mean
that absolute sovereignty belong to states.
No way to know what sovereign states have
until we know what the forms international
laws and whether or not they are empty forms.
 themselves.

Voluntarist or auto-limitation- absolute
sovereigns which self-impose international
obligations. Counterpart of the social contract.
(1) Never explained why sovereigns can only
be obligated when it is self-imposed and
why it should remain to be the assumption.
(2) Inconsistent in itself to say that
sovereignties are only subject to
themselves. Even if it is self-imposed, there
is another they are bound to. It is a
promise to give rise to obligations. This
means that there needs to be an
acknowledgement of fulfillment. Even the
most voluntary form of social obligation
involves rules that are binding
independent from the choice of the party
bound by them. This is inconsistent with
the supposition that sovereigns are free
from all rules.
(3) States can only be bound by self-imposed
obligations, no other obligation exist under
the present rules of international law.
Modern international law is very largely
treaty law and is dependent on consent
(whether given freely, tacitly, or inferred).
There are some exceptions:
 A new state: bound by general
obligations of international law
including rules that give binding force
to treaties.
 A state acquiring territory or
undergoing some change, brings with it
the incidence of obligation which it
didn’t have before.
 Effects on non-parties of general or
multilateral treaties.

This proves that the assumption that all

international obligations are self-imposed has
been based on abstract dogma and little facts.

C. International Law and Morality

- Some claim that morality is the difference between municipal and international rules. This
is based on the idea that every social structure that isn’t reducible to orders backed by
threats can only be a form of morality.
- For international law specifically, there are multiple reasons why it should reject the
classification of its rules as morality.
 States constantly reproach each other for immoral conduct or praise each other for
fulfilling international morality. Some action might, but not all of it, will be subsumed
under international law. Morality is not international law.
  Appraisal of states’ conduct in terms of morality is different from formulation of the
claims, demands and acknowledgement of rights and obligations under the rule of
international law. Morality doesn’t deal with fear of threats of retaliation or demands of
compensation.
 International law, like municipal law, is joined with moral appeal. What predominate
in the arguments between states are references to precedents, treaties and juristic
writings. There is often no mention of morality, right or wrong.
 Relations of states are half way houses of what is clearly law and what is clearly
morality.
 Rules of international law are often morally different. A rule can exist for organization
and have no moral purpose. Examples: how many witnesses can be valid/which side to
drive on. Not all are morally neutral but there are some which exists. It might result
into changing a person’s morality but it isn’t the attempt.
 Morality is an ultimate standard for human action to be evaluated on. It is an absolute a
non-negotiable value. International law is open to change.
 International law must rest on the conviction of states and that there is a moral
obligation to obey them.  it can’t be helped that some might act based on what they
conceive as morally acceptable. But this doesn’t mean morality must exist in
international law, only that some might follow it due to morality.
 Reason for accepting the law will always be diverse. Even with municipal laws, some
voluntarily accept a more coercive system.

Summary: None of the said difference between municipal law and international law is significant. It is
sufficiently analogous to municipal law.

- Order backed by a threat  fear of retaliation.

- Not assured retaliation due to the possible veto  can also be paralyzed by a general strike.
- Municipal law need a basic norm/rule of recognition international law is a set of
primary obligations which the rule giving binding force to treaties is one. It doesn’t need to
contain a basic norm. It can be binding even if it’s a set of separate rules.
- If rules are accepted as standards of conduct and supported with social pressure distinctive
of obligatory rules, then it has what municipal law has.