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Was Dworkin an Originalist?

The Legacy of Ronald Dworkin, Oxford University Press, Forthcoming

San Diego Legal Studies Paper No. 15-185

33 Pages Posted: 11 Mar 2015  

Larry Alexander

University of San Diego School of Law

Date Written: March 10, 2015

Abstract

In this essay I endorse the conclusion reached earlier by Jeffrey Goldsworthy that Ronald Dworkin was an originalist regarding the meaning of canonical legal texts. I briefly canvas the evidence for that claim. I then ask how the truth of that affects Dworkin’s fit-acceptability account of the nature of law.

I first digress to give my own broad-brush view of the jurisprudential debate between legal positivists and natural lawyers, a view that sees their positions as complementary rather than antagonistic. I then explain why I believe the natural law view must fail and why legal positivists must make an unpalatable choice between a gunman model and a model based on deception. Finally, I situate Dworkin’s “third way” jurisprudence and point out its fatal flaws.

I conclude the essay by circling back to Dworkin’s originalism and pointing out how devastating it is for Dworkin’s view that law consists of those principles that best justify the community’s past and present coercive political decisions.

Keywords: originalism, law, positivism, natural law, obligation, principle, semantic intent

JEL Classification: K10

Suggested Citation

Alexander, Larry, Was Dworkin an Originalist? (March 10, 2015). The Legacy of Ronald Dworkin, Oxford University Press, Forthcoming; San Diego Legal Studies Paper No. 15-185. Available at SSRN: https://ssrn.com/abstract=2576416

Lawrence Alexander (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
619-260-2317 (Phone)
619-260-4728 (Fax)

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