Law in the Service of Legitimacy

Abstract

This paper proposes that an interpretive theory would do well to abandon the proposition that legal rights and duties are those that can be judicially enforced on demand. Ronald Dworkin emphatically embraces this proposition in Justice for Hedgehogs. But in Law’s Empire he is more ambivalent. The chapter picks up this thread in Dworkin’s work to argue that court-centrism flows from an unduly narrow understanding of how law contributes to political legitimacy. That understanding leaves out what I call the assurance dimension of legitimacy (or assurance legitimacy for short). Assurance legitimacy prescribes institutional guarantees that a political regime will reliably and systematically act in a morally justified way. The paper advances the claim that assurance legitimacy is an attractive and important moral principle, and that law makes an essential contribution to it. Conversely, our philosophical understanding of law must also be informed by its connection with assurance legitimacy. Understood in light of assurance legitimacy, law’s moral significance stretches beyond the courtroom. Some of the most consequential constraints that it imposes on state action are policed not by judges but by other state officials. Moreover, attention to assurance legitimacy allows us to enrich the notion of the rule of law or legality, which for Dworkin is the most abstract characterization of law’s moral point.

Keywords: Dworkin, judicial enforceability, legality, legitimacy, separation of powers, interpretivism, anti-positivism