45 Pages Posted: 9 Apr 2004
Dworkin's thesis that there is one right answer in hard cases has been much criticized over the past quarter century. This thesis is counterintuitive particularly since Dworkin has a hermeneutical theory of legal interpretation and acknowledges that contemporary liberal democracies are morally and politically pluralistic. Nevertheless, Dworkin's thesis is not easily dismissed if put in proper context. This paper reconstructs Dworkin's theory of law as systematic and unified - the one law principle - and examines his thesis from the standpoint of counterfactual reconstruction. After articulating the criteria and uses of counterfactual reconstruction, the paper assesses Dworkin's counterfactual theory of adjudication centered around the superhuman judge Hercules. Drawing on Dworkin's distinctions between principle and policy and concept and conception, the paper concludes that Dworkin's thesis does not follow from his own premises and that pluralism at times calls for a plurality rather than a single right answer in hard cases.
Keywords: dworkin, jurisprudence, right answers
Suggested Citation: Suggested Citation
Rosenfeld, Michel, Dworkin and the One Law Principle: A Pluralist Critique. Revue Internationale de Philosophie, 2004. Available at SSRN: https://ssrn.com/abstract=528562