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This and the next several essays will, I hope, exposit many ideas from Dworkin's immensely fruitful book Taking Rights Seriously (TRS, 1977). These essays were written between 1963 and 1975 and are designed to be his critique of positivism (what he calls the ruling conceptual theory) and economic utilitarianism (ruling normative theory) as well as the advancement of his "moral" or principle-based theory of law. In a nutshell, Dworkin believes that positivism has no capacity to explain law's appeal to principles outside of the statute or precedent at hand when making difficult decisions. Only a theory large enough to include the notion that judges render decisions (and ought to do so) based on principled moral reflection will do justice to law as it is actually practiced.

Dworkin's World

Thus we are aware immediately upon opening the book that Dworkin occupies a different intellectual world than HLA Hart. Though having studied at Oxford in the 1950s as a Rhodes Scholar (he was never a student of Hart, however) and imbibed the neo-positivism of Hart, Dworkin's concern was not to resurrect a weak English jurisprudence (as Hart did) but rather to forge an understanding of law that took into consideration the shape of the Supreme Court's activism in the 1950s and 1960s. I am not clear either from his book or the long interview of Dworkin in the current NYU Law School Magazine the genesis of his moral reading of law and the constitution, but by the time he wrote TRS the method is clear and to the point.

So, TRS will be both a critique of the "ruling theory" of jurisprudence at the time and a statement of his own "principled" approach to law. The remainder of this essay will highlight points from the Introduction which illustrate his approach. He is aware that he is writing during a time of great political controversy about what law is. Indeed, the View Nam War, which hovers as a sort of looming omnipresence behind some of his essays, brought the issue of law's authority to the fore both because of the debate over the legality of our intervention in SE Asia as well as the ethical issues surrounding conscientious objectorship to the War. But in the Introduction he is more concerned to lay out the ambition of his project as a critique of the "ruling theory of law."

Though Bentham is credited with originating the dual theories of legal positivism (the "conceptual" theory, which "holds that the truth of legal propositions consists in facts about the rules that have been adopted by specific social institutions, and nothing else"--vii) and economic utilitarianism (the "normative" theory), the more immediate target of Dworkin will be HLA Hart's work, especially for the conceptual material. But before getting to that critique it might be informative to understand the sweep of Dworkin's ambitions with respect to a "general theory of law" he propounds.

A General Theory of Law

Dworkin lays out the ambitious scope of a "general theory of law." It must have a theory of legislation, of adjudication and compliance. This reflects the three "actors" in the legal system who are affected by legal actions--legislators, judges and citizens. But each of these three can be broken down into two parts. A theory of legislation must have a theory of legitimacy as well as a theory of legislative justice; a theory of adjudication must contain a theory of controversy as well as a theory of jursdiction; and a theory of compliance must have a theory of derference (the citizen's duty to obey the law) and a theory of enforcement, which identifies the goals of enforcement and punishment. Overlying this is a "general theory of law" which will demonstrate "interdependencies" with other departments of philosophy, such as philosophical and moral philosophy as well as logic and metaphysics. Thus, in the space of two pages Dworkin has outlined much of his life's work for us, though most of his focus in the ensuing years would be on theories of adjudication and interpretation. It is good, however, for younger people (he was in his mid-40s at the time) to develop ambitious approaches to things, even if the breadth of the vision bespeaks a moral earnestness which will no doubt recede as the realities of middle age and the refinement of vision, influence the shape of personal ambitions.

One other point in the Introduction deserves mention. He tips his hand on the important of rights for his work on p. xi.

"Neither of these very different critiques of the ruling theory challenges one specific feature of that theory I mentioned, however. Neither argues that the ruling theory is defective because it rejecs the idea that individuals can have rights against the state what are prior to the rights created by explicit legislation....The idea of individual rights, in the strong sense in which the idea is defended in this book, is for them (critics of the ruling theory) simply an exaggeraged case of the disease from which the ruling theory already suffers."

Conclusion

Already from the Introduction we can tell that a significant challenge to Hart and positivism is here and one grounded deeply in the soil of the American experience in the 1950s and 1960s, especially the experience of the expansion of rights during these decades. One way to look at Hart is to see him as almost passe as soon as he wrote, because he wanted to come to grips primarily with the dead past of English jurisprudence, while Dworkin's theories will have a muscularity to them for decades after they were written.

But Dworkin begins first with telling the story of English and American jurisprudence before he came on the scene. Let's turn to that story.

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