Forty Years On
37 Pages Posted: 4 Apr 2007 Last revised: 9 Oct 2009
Date Written: 11 Feb 2008
Since the 1960's Ronald Dworkin has been arguing for a particular account of law that he believed was both explanatorily superior to the one offered by competing theories, and also the basis for normative arguments for producing right answers to legal questions. Justice in Robes collects Dworkin's most recent essays on this subject and thus provides the appropriate opportunity for assessing the legal theory of one of the more influential legal philosophers. In this Review I seek to offer a clearer account than appears in the book itself of Dworkin's project, and in this way offer a measured assessment of his work. My argument shows that there has been significant misunderstanding of Dworkin's project and that once it is cleared we can see that Dworkin's questions are not so far apart from those of other legal theorists. This approach has another benefit, as it ties together Dworkin's disparate discussions in Justice in Robes into a more coherent whole. Once the structure of Dworkin's argument is clarified, I move on to examine the details of his argument. Here, I argue, his arguments are often less convincing. Nevertheless, I argue, this need not lead us to wholesale rejection of his theory. I show how his ideas make more sense within a broader account of law that shows the limited but undeniable sense in which his arguments are correct, and inform our understanding of legal practice.
Keywords: jurisprudence, legal positivism, Dworkin, courts, politics
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