Defending Dworkin’s One-System Anti-Positivism

Abstract

In this article, I argue that Dworkin’s one-system view of law and morality is not as easy to refute or dismiss as some would suggest. In a recent article, Dindjer criticizes a new kind of opposition to legal positivism characterized by both its opposition to a two-system view of law and morality and its promotion of a one-system alternative picture. By re-examining Dworkin’s criticisms of the two-system view and by providing additional reasoning of my own, I show that Dworkin’s one-system interpretative approach is not just sensible but also promising in refocusing contemporary debates in general jurisprudence on a moral and political reading of the structural features of law.

Introduction: A new kind of opposition to legal positivism

In the article “The New Legal Anti-Positivism,” Hasan Dindjer criticizes a “new wave of anti-positivist writing” that is characterized, at least in part, by its opposition to an orthodox two-system view of law and morals. ¹ As a result, Dindjer sees this new and distinct kind of opposition to legal positivism as promoting a ‘one-system’ view of law and morals, a one-system picture that owes much of its notoriety or influence to its most prominent proponent, Ronald Dworkin. ² Although Dindjer is correct that Dworkin’s explicit discussion in Justice for Hedgehogs of both his opposition to the orthodox two-system view of law and morals, as well as his ‘tree structure’ of law as morality, is both “brief and suggestive,” I will suggest that a failure to account for Dworkin’s full reasoning for opposing the two-system picture meant that Dindjer’s characterization of the ‘one-system’ view is significantly problematic, and much of Dindjer’s arguments end up missing the mark. ³ In this paper, I want to explain Dworkin’s account of the “fatal flaw” of the two-systems approach, provide additional arguments in support of his criticisms of this two-systems picture (and the legal positivism that seems to be easier to justify within this picture), and then show the implications of Dworkin’s “tree structure” picture for understanding the importance and significance of the structural features characteristic of the legal institutionalization of political morality. ⁴

In the first section, I will focus more on Dworkin’s explicit reasons for rejecting the two-system view and develop his arguments further. In the second section, I will provide additional reasons of my own (inspired by Winch’s regrets about his early influential account of rule-governed social practices) in support of Dworkin’s rejection of the two-system picture of law and morals, and then draw out some implications of these arguments for his tree structure view of law and morality. ⁵ In the third section, I will explain why Dindjer’s characterization of the “core commitments” of the one-system viewpoint is problematic as it relates to Dworkin’s one-system view. ⁶ In the process, it will become clear why the “structural features” of law are so crucial to an evaluation of Dworkin’s one-system view of law and morality. ⁷

1. Dworkin’s rejection of the orthodox two-picture view of law and morality

In an autobiographical note in the last chapter of Justice for Hedgehogs, Dworkin acknowledges that he had previously attempted to defend interpretivism within the framework of an orthodox two-picture view of law and morals. He states,

I assumed that law and morals are different systems of norms and that the crucial question is how they interact. So I said what I have just said: that the law includes not just enacted rules, or rules with pedigree, but justifying principles as well. I soon came to think, however, that the two-systems picture was itself flawed, and I began to approach the issue through a very different picture. ⁸

He adds that he only became aware of the full significance of his alternative picture and the implications of rejecting the two-system picture with his research for this book. However, he also is aware of the reaction people might have to his own very unorthodox ‘tree structure’ picture of law as a branch of political morality. He states, “We have replaced this with a one-system picture.… Many readers will think that I have finally pressed my ambition to unify value too far: I have indeed become Proscrustes sacrificing sense to a philosophical theory.” ⁹ Thus, his task in this chapter is not just to provide his reasons for rejecting the orthodox two-system picture, but also to provide some reasons for thinking his alternative picture makes sense. In this section, I will explain the orthodox two-system picture and Dworkin’s explicit reasons for rejecting it. I will explain how this leads Dworkin to a criticism of analytic philosophy and its emphasis on conceptual analysis. In the next section, I will provide additional support for Dworkin’s arguments by considering problems with Hart’s second-order ‘sociological’ approach to conceptual analysis.

Dworkin describes the orthodox two-picture view of law and morals (or “classical view”) as presenting law and morals as two distinct systems of norms, with the differences between these two systems being “deep and important.” ¹⁰ This orthodox view can be seen in the early legal positivism of Austin, who sought to determine the ‘province’ of jurisprudence by distinguishing positive law (law’s commands from a particular political superior at a time and place) from both a positive morality (what passes for morality at a time and place, regardless of its merits) and from the critical morality or true moral standards (the commands of a god as expressed best according to Austin in utilitarianism). ¹¹ Thus, the difference in systems of norms is sometimes described as a difference between a historically and politically constituted set of legal norms and an abstract, objective, and universally valid set of moral norms (or god-given moral commandments or natural laws or categorical imperatives). But it is also clear from Austin there is a significant and important difference between positive law and positive morality; the system of legal norms has its source in the commands of political superiors, while positive morality is not so established by political superiors (having its source in customary practices and other kinds of human superiors). ¹²

With Hart’s ‘sociological’ approach in The Concept of Law (a sociological approach influenced by Wittgenstein) ¹³ the key to jurisprudence is to see law as a rule-governed social practice (characterized by a union of primary and secondary rules) distinct from other rule-governed social practices like rules of etiquette or rules of grammar or moral practices. ¹⁴ As such, law is a system of valid legal norms (some of which impose legal obligations and others facilitate the realization of people’s wishes “by conferring legal powers upon them to create, by certain specified procedures and subject to certain conditions, structures of rights and duties within the coercive framework of the law”) ¹⁵ that have their source for validity in an ultimate constitutive rule which authoritatively determines some practices as properly legal norm-making and legal norm-applying practices. Thus, ‘valid’ legal norms are identified by an ultimate rule of recognition (an ultimate social practice of recognition by officials for identifying legitimate or authoritative social/institutional sources for creating and applying legal norms). The ultimate rule of recognition does the work of not just identifying specific valid legal norms but also constituting a distinct ‘system’ or social practice by identifying properly ‘legal’ processes and procedures. This system, so identified by this ultimate rule of recognition, is distinct from not only other legal systems (with their own ultimate rule or rules of recognition) but is also distinct from other rule-governed social practices, like rules of etiquette and rules of grammar. ¹⁶

Thus, law and morality are two significantly different ‘systems’ of rules or norms for Hart. They differ primarily in terms of their ultimate source (legal norms have their ‘source’ for validity in an ultimate rule of recognition or an ultimate constituting and customary practice of recognition by legal officials, while moral norms do not have this source). This also means that these two systems differ in terms of their relation to institutional processes and thus the social practices and beliefs of people at a specific time and place (legal norms are relative to the institutional legal processes determined by people at a specific time and place, while moral norms are not). They differ clearly in their content (there are valid legal norms that are unjust and immoral, but also ones that facilitate the doing of things whether these things are moral or not). Although these differing systems of norms will overlap in content due to certain facts (simple truisms) about our nature and the limited resources of nature itself (Hart famously calls this overlap a “minimum content” that all legal systems and moral systems have in common) ¹⁷ and the influence of both the “social morality” and “wider moral ideals” on legal systems is undeniable, ¹⁸ the important distinctness of these two systems (whether we are distinguishing positive law from the ‘accepted’ positive or customary morality or whether we are distinguishing positive law from a ‘wider’ critical/objective morality) is undeniable too.

The two-system picture of law and morality is made even more definite and mutually exclusive (at least, analytically speaking) by exclusive legal positivists like Joseph Raz and Andrei Marmor. For Raz, the ultimate rule of recognition is:

the point (one such point) at which—metaphorically speaking—law ends and morality begins. It is the fact that enables us to separate legal from moral facts.… Because we can identify a social fact of the judicial recognition of the law by the courts, we can establish that there is a law in a certain country and establish its content even if it is a morally bad and illegitimate system of law. The rule of recognition, being a social fact, enables us to identify the law without recourse to morality. ¹⁹

Both Raz and Marmor characterize this ultimate customary practice as a ‘constitutive rule’ or an ultimate customary social practice (which is a social fact) that constitutes a distinct system of norms that can be identified as legally valid independently of moral reasoning and a moral perspective. In other words, both embrace a more extreme version of the Separation Thesis due, in part, to their embrace of what Marmor refers to as the Social Thesis. ²⁰

The Social Thesis is described by Marmor and Sarch as particularly important in seeing how law is,

profoundly, a social phenomenon, and that the conditions of legal validity consist of social—that is, non-normative—facts.… One way of understanding the legal positivist position here is to see it as a form of reduction: legal positivism maintains, essentially, that legal validity is reducible to facts of a non-normative type, that is, facts about people’s conduct, beliefs and attitudes. ²¹

Exclusive legal positivists like Marmor and Raz then see the Separation Thesis as a “negative implication” of the Social Thesis: “properly understood, [it] pertains only to conditions of legal validity. It asserts that the conditions of legal validity do not depend on the moral merits of the norms in question. What the law is cannot depend on what it ought to be in the relevant circumstances.” ²² Of course, so construed, many inclusive legal positivists (including Hart) would not accept this more extreme version of the Separation Thesis (and Marmor and Sarch both explicitly acknowledge this). But, for our purposes, it is crucial to see that the orthodox two-system picture of law and morals is reinforced by the exclusive legal positivist’s emphasis on the Social Thesis: valid legal norms are identified by reference to non-normative and so non-moral facts, while valid moral norms are not. A legal system, consisting of valid legal norms and authoritative processes for creating and applying these valid legal norms, is clearly distinct from morality. Morality represents a significantly different ‘vantage point’ from which to view legal rules and determine our obligations in relation to them; the vantage point of law is completely independent of this moral perspective. ²³

Dworkin explicitly rejects this orthodox or classical two-system picture of law and morals. He states that interpretivism:

denies that law and morals are wholly independent systems. It argues that law includes not only the specific rules enacted in accordance with the community’s accepted practices but also the principles that provide the best moral justification for those enacted rules.… Interpretivism, in other words, treats legal reasoning as I have argued in this book we must treat all interpretive reasoning. It treats the [doctrinal] concept of law as an interpretative concept. ²⁴

He will provide a further explanation of his view that law is a branch of political morality (his own tree structure picture) and how legal rights are distinct from political rights; but what is Dworkin’s criticism of the two-system picture of law and morals?

The most explicit and obvious argument is made right after his characterization of “the classical view” in his description of “The Fatal Flaw.” ²⁵ He describes the ‘fatal flaw’ in the two-system view of law and morality in the following way: “Once we take law and morality to compose separate systems of norms, there is no neutral standpoint from which the connections between these supposedly separate systems can be adjudicated.” ²⁶ If we assume that each system has its own set of norms with its own ‘logic’ or vantage point for determining its content, then we seem to be required to either treat the question of the “connection between law and morality” (and thus questions about the plausibility of interpretivism versus legal positivism) from either a legally based perspective or a morally based perspective. ²⁷ However, Dworkin argues that each perspective would beg the question of whether interpretivism or legal positivism is correct (and thus provide a ‘circular argument’ for conclusions about connections between law and morality). ²⁸ It is crucial to see that Dworkin’s argument here assumes the two-picture viewpoint; thus, for the sake of argument, he represents interpretivism and legal positivism as assuming this two-system picture. His own view of interpretivism (in this book and arguably elsewhere) represents a version of interpretivism that rejects this two-system picture and must be understood and characterized as such.

If we assume the two-system view of law and morality, and if we treat this from a legally-based perspective (or a legal vantage point), then whether or not we include justifying principles in our determinations of the content of ‘law’ would clearly beg the question of whether interpretivism or exclusive legal positivism is more plausible. ²⁹ But how can we have a stance on what the ‘law’ is on any matter (a stance that is crucial to characterizing a legal perspective or vantage point as a legal one) without presupposing some theory of what constitutes the content of law and how this content is connected (or not) to morality? Some assumptions must be made to characterize the legal vantage point as a legal one, and this involves some assumptions about what determines the ‘law’ on some matter. To assume that the content of valid law can be determined independently of justifying moral principles in one’s characterization of the legal vantage point is already to assume what one is trying to prove or support: namely, the conclusion that exclusive legal positivism is plausible or defensible and that valid law is determinable from a non-normative detached legal perspective. To assume that the content of valid law can be determined by justifying principles but only if these principles are deemed criteria of validity by the ultimate rule of recognition is to already assume what one is trying to prove as well: namely, that the connection between law and morality is a contingent one as understood by inclusive legal positivism. Finally, to assume that the content of valid law must include justifying moral principles in any interpretation of the ‘law’ on some matter is also to reinforce this basic assumption of interpretivism, rather than provide any independent support for a conclusion on the connection between law and morality. In this way, from a strictly legal perspective or vantage point, no conclusion about the connection between law and morality (or no conclusion about the plausibility of exclusive legal positivism versus inclusive legal positivism versus interpretivism) can be supported without begging the question about this connection between law and morality.

However, it is equally circular to approach this question of the connection between law and morality from a moral perspective (again assuming a two-system picture of law and morality). Dworkin argues that, from this perspective, “we beg the question in the opposite direction.” ³⁰ How so? Assuming that morality forms a separate and distinct system (with its own logic and its own distinct vantage point on our obligations), how one characterizes the connections between this system and a legal system from a purely moral vantage point can only beg the questions we are trying to prove (about which account of the connection between law and morality, interpretivism or legal positivism, is more plausible). Does morality or political morality require a legal viewpoint on valid law that maintains a Separation Thesis or denies it? If political morality is seen as requiring the Separation Thesis for determining valid law (say, justice is better promoted by the determination of valid law independently of morality), then we are already assuming that valid law can be determined in separation from justificatory moral principles. If political morality requires an appeal to moral principles to determine valid law (and thus legal norms become a subset of moral norms), we are already begging the question of determining valid law with justifying moral principles. If each position is presented as a viewpoint on the connection (or lack thereof) between two distinct systems of morality and law, then there is no way to argue in support of a position from a vantage point that already presupposes a characterization of this connection.

Clearly Dworkin came to see that it is the two-system view of law and morality that is at the heart of a current stalemate in philosophical jurisprudence between versions of legal positivism and anti-legal positivists like himself, a debate that has been going on since Hart proposed his more contemporary version of legal positivism in 1961. If we try to look at what ‘fits’ legal practice (from a strictly ‘legal’ perspective, which assumes a two-system view), we cannot provide evidence, in a non-question-begging way, for the truth of legal positivism versus interpretivism or even the truth of inclusive legal positivism versus exclusive versions. Whether we try to look at legal participants’ views on their own practice or what their practice indicates about their underlying views, we end up with a diversity of legal participants with a diversity of evidence that could be used to support different theories. ³¹ How we characterize the evidence and practices as ‘legal’ already begs the question in favor of legal positivism or interpretivism. And the situation is no better if we look to provide moral arguments (assuming again a moral vantage point or system distinct from a legal vantage point or system) for interpretivism or legal positivism. Thus, “the two-systems picture therefore faces an apparently insoluble problem: it poses a question that cannot be answered other than by assuming an answer from the start.” ³²

As a result, analytical jurisprudence, according to Dworkin, has attempted to solve this dilemma by attempting to detach the theorist from both a purely legal approach/vantage point and a purely moral one, and instead emphasize a meta-ethical, second-order philosophical approach, one that focuses on conceptual analysis or the elucidation of the concept of law. ³³ From this outside, observer-theoretical perspective, we can “excavate the nature or essence of that concept without making any prior legal or moral assumptions.” ³⁴ Dworkin raises questions about how we should understand conceptual analysis in this more detached philosophical approach. He describes Hart’s approach in The Concept of Law as one where conceptual analysis “consists in making evident the hidden convergent speech practices of ordinary users of the language.” ³⁵ But, Dworkin adds right away, “there are no convergent practices to expose.” ³⁶ And, of course, according to Hart, the mere converging patterns or predictable regularities, whether in practices or speech, cannot by themself yield the notion of a legal “norm” and legal “obligation” (a notion crucial to understanding a legal system and legal practice). ³⁷ To understand social behaviors as meaningful, we need to see them as more than merely converging or predictable patterns (like making marks on a piece of paper); we need to see them as rule-governed social activities (like voting in an election). ³⁸ Thus, Hart also models his philosophical analysis of concepts on the methods of a descriptive sociology (like that of Winch’s version of a Wittgenstein idea of social philosophy) ³⁹ and attempts to describe the rule-governed social practices in a way that helps us (the observer legal philosopher) “understand [the] understandings” of legal participants. ⁴⁰

But can such a detached philosophical perspective yield anything of value by assuming a two-system view of law and morality? Clearly, Dworkin had earlier in Justice for Hedgehogs challenged philosophers who appeal to such a ‘meta-ethical’ stance to approach ethical and moral questions to justify this approach. Although he acknowledged explicitly the value of such second-order, somewhat detached perspectives of the social sciences (like historical, sociological, or psychological interpretations of our moral and ethical life), he also argued that there are “no distinctly philosophical questions of that kind” (unless we count the question of whether meta-ethics is itself a metaethical question). ⁴¹ Thus, Dworkin does, in part, rely on his earlier arguments to at least raise suspicions about the value of such a detached, second-order observer-theorist approach for philosophy. But can additional reasons be provided for rejecting this second-order philosophical two-system view on law and morality?

2. Additional reasons for rejecting an observer-philosophical approach that assumes the orthodox two-system picture of law and morals

Let me add more reasoning in support of his view that this detached, second-order observer-philosophical approach is especially problematic with the two-system picture of law and morality. My argument is based on Winch’s expressed regrets about promoting a misleading account of rule-governed social practices. I will argue that this misleading account contributed to the orthodoxy of the two-system view of law and morality, and an analysis of why this account is misleading exposes the problems with this two-system picture for understanding ‘law’ and legal obligation.

In the Preface to the second edition of The Idea of a Social Science and its Relation to Philosophy, Winch expresses regret about some passages in the first edition of this book; in particular, he has some regrets about how he characterized Wittgenstein’s discussion of rule-following as it applied to language and to other kinds of social practices. Winch states, “unfortunately, I was far from sufficiently careful in the way I expressed the relevance of the notion of a rule, both to language and to other forms of behaviour.” ⁴² For instance, he had claimed that “all behaviour which is meaningful (therefore all specifically human behaviour) is ipso facto rule-governed.” ⁴³ He argues that this is not the case either for him or for Wittgenstein, and that it encourages a distortive picture of human behaviour. He quotes Wittgenstein’s Philosophical Investigations at length to explain his mistake. Wittgenstein states that “in philosophy, we often compare the use of words with games and calculi which have fixed rules, but cannot say that someone who is using language must be playing such a game.” ⁴⁴ Here Wittgenstein is distinguishing the philosopher’s use of analogies to understand a social practice (whether this is the analogy of language users and rules of a game or the more contemporary analogy of legal practice and fiction or role-playing) with the committed participant’s actual actions and beliefs. ⁴⁵ It is clear that the analogy is just an analogy; attributing all the characteristics or elements of a game or a fiction to law distorts the actual practice of law.

Again, Winch quotes Wittgenstein at length to raise questions about his initial characterization of social practices as rule-governed (with clearly defined constitutive and procedural rules like those in games). Wittgenstein asks what is the ‘rule’ by which a language user proceeds and makes a number of suggestions to answer to this question. He asks whether the rule is:

The hypothesis that satisfactorily describes his use of words, which we observe; or the rule which he looks up when he uses signs; or the one which he gives us in reply if we ask him what his rule is?—But what if observation does not enable us to see any clear rule, and the question brings none to light?—For he did indeed give me a definition when I asked him what he understood by “N”, but he was prepared to withdraw and alter it.—So how am I to determine the rule according to which he is playing? He does not know it himself.—Or, to ask a better question: What meaning is the expression “the rule by which he proceeds” supposed to have left to it here? ⁴⁶

This passage by Wittgenstein is relevant since it pertains to an ‘observer-theorist’ looking at a rule-governed social practice (in this case, the use of language by a language user) from the outside, seeking to ‘understand the understandings’ of language users. By comparing the use of language by language users to the moves in a game by players (a comparison often made by philosophers), we give the impression not only of a clearly defined set of rules constituting and governing a practice, but also the impression that people are actually following and governed by these clearly defined rules. However, Wittgenstein raises doubts about the meaning of the ‘rule’ by which a language user or committed participant proceeds (i.e., whether it is the rule that I, the observer-theorist, am attributing to the practice or whether it is the rule a participant says or believes they are following or whether it is the rule that is somehow discernable or expressed in their practice regardless of what they may say or believe). If there is no consensus among committed participants or if committed participants are willing to withdraw or alter their views when questioned, how can we (the observer-theorist) give any meaning to the expression ‘the rule by which he proceeds’?

Clearly, legal positivists like Hart and Raz see law as a rule-governed activity comparable to rules of a game; both kinds of social practices consist of a set of valid norms identified as such by an ultimate constitutive rule or constitutive set of rules. This ultimate rule of recognition (which is often construed as a customary practice of recognition by officials and a ‘social fact’ of the beliefs and practices of officials) is itself a ‘constitutive rule’ which both governs the practice of officials and constitutes the system of valid legal norms generated by authoritative law-making and law-applying processes. Ehrenberg sums up contemporary legal positivism’s view of this ultimate and constituting rule in the following way: “According to Hart and those who follow his general lead, collective acceptance and application of this basic validity rule by key officials determines what counts as legally binding within a given jurisdiction.” ⁴⁷ But is there really some “collective acceptance and application” of the same unambiguous ultimate rule of recognition (or ultimate set of rules) by legal officials in any legal system? If there is a rule that truly governs the customary practice of officials (i.e., the ultimate rule is not a mere regularity or predictable pattern, but a meaningful/rule-governed way of proceeding), how can an observer-theorist in any unarbitrary way decide the ‘rule’ by which different officials proceed when these officials would provide different accounts of this ultimate rule and especially if they are prepared to change their minds when challenged? ⁴⁸

Ehrenberg acknowledges that, for “collective acceptance and application” of this basic rule, the basic rule must be the “object of collective intentionality” and “[k]ey legal officials must operate with the same rule in order to have a coherent legal system.” ⁴⁹ He adds that key officials must “follow the rule because it is the rule that the group accepts (although they may also have other reasons upon which they rely, and they need not be fully psychologically self-aware in their use of the rule).” ⁵⁰ Ehrenberg also distinguishes the differing psychological motives of legal officials with respect to following this basic constitutive rule from the ‘content of the intention’ in this respect. These qualifications—both acknowledging that some officials are not “fully psychologically self-aware” of the rule that governs their own practice and that different motivations for following the same rule are possible—help to explain some of the differing psychological beliefs, statements, and actions of, for example, different U.S. Supreme Court Justices with respect to the U.S. Constitution and the ultimate sources for validity. But it still does not show that the observer-theorist can unambiguously identify the same content in the ultimate rule of recognition, a content that is collectively intended—and actually used by—different legal officials as a rule for proceeding.

Ehrenberg acknowledges in a footnote that some philosophers (like Dworkin and Adler) “raise doubts” about whether officials actually share the content of this basic validity rule, but he believes that these doubts do not “threaten its status as an object of collective intention.” ⁵¹ In this way, Ehrenberg is saying that a rule can be an object of collective intention without agreeing about its content. This is true so far as it goes. For instance, people can collectively intend to invalidate a specific rule without agreeing about its content (and with significant disagreement about even paradigm cases). However, it is difficult to see how one could say that a given rule actually governs a practice (i.e., that the rule governs how committed participants proceed) without some agreement about its content (at least in paradigm cases). ⁵² Thus, if the content of this ultimate rule is significantly different for different U.S. Supreme Court Justices (as it seems to be for originalists and for those who challenge originalism, for instance), then there is no way for us (the observer-theorist) to unambiguously say X is the rule by which legal officials proceed.

Winch’s takeaway from these passages from Wittgenstein is a need to avoid “the impression sometimes given in this book of social practices, traditions, institutions etc. as more or less self-contained and each going its own, fairly autonomous, way.” ⁵³ In other words, he sees that the emphasis on conceiving of meaningful social practice as rule-governed (analogous with clearly rule-defined games) gives the mistaken impression that different social practices are self-contained and independent from each other. This emphasis mistakenly characterizes each social practice as containing its own principles of development (i.e., having its own ‘logic’ and distinct vantage point for discerning not just the content of valid norms but authoritative processes and procedures for developing and applying this system of norms). If we see law as a system of valid norms created and applied by properly legal processes so-identified by an ultimate constituted rule (and all of this, like a game of football, proceeding according to a definitive and authoritative rulebook), then it gives the impression that law is distinct and essentially self-contained both from other social practices and from morality (conceived here, with this two-system picture, as itself a rule-governed social practice with its own distinct vantage point and clear principles of development).

In the first edition of his book, Winch did try to address the problem of portraying all these rule-governed practices as distinct and autonomous systems by emphasizing the overlap between different social practices (as Hart does himself with his minimum content shared between law and morality). ⁵⁴ However, Winch adds:

[T]he suggestion that modes of social life are autonomous with respect to each other was insufficiently counteracted by my qualifying remark … about the ‘overlapping character of different modes of social life’. Different aspects of social life do not merely overlap: they are frequently internally related in such a way that one cannot even be intelligibly conceived as existing in isolation from others. ⁵⁵

Thus, the main problem with the two-system picture of law and morality is that it represents these systems as merely overlapping in substantive content, rather than seeing the complexity of the interdependence of law and morality. As we shall see, Dworkin’s emphasis on the structural features and processes of law and the complex relationship between legal rights and political rights assumes a one-system picture that can acknowledge a complex interdependence of law and morality. As a result, this represents Dworkin’s one-system view of law and morality in a significantly different way than as characterized by some critics like Dindjer.

3. Dindjer’s characterization of the one-system view versus Dworkin’s one-system view of law and morality

In his article “The New Legal Anti-Positivism,” Dindjer characterizes the “one-system” view of law and morality (in fairness, focusing directly on the more “detailed” accounts of the one-system view given by Greenberg and Hershovitz) in terms of an “Identity Thesis” and a “Correspondence Thesis.” ⁵⁶ Since Greenberg and Hershovitz focus on the content of legal norms and affirm that legal norms are a subset of moral norms, Dindjer believes he can, at least at the start, put aside all discussion of the systematic or procedural/structural aspects of both law and morality and focus instead on the claim that legal norms are a subset on moral norms. ⁵⁷ This approach has the merit of enabling him to deal with a diversity of one-system views that all share the same core commitment. Thus, he writes: “The convenience of the ‘one-system’ label notwithstanding, it will not be important for our purposes whether morality and law are systemic in any interesting (or unified) sense. What matters is that any one-system view holds that legal norms (obligations, rights, etc.) are a subset of moral norms.” ⁵⁸ Dindjer explicitly treats the one-system view of law and morality as having a ‘core commitment’ that can be isolated from and treated independently from other parts of the one-system view (other aspects like Dworkin’s interpretivism, for instance). This ‘core commitment’ can be characterized in terms of its stance on legal norms (i.e., focusing on the content of valid legal norms in isolation and independently from the context of a system of institutional or structural practices and political principles). At its core, the one-system position, according to Dindjer, is committed to the view that each legal norm is a ‘type’ or ‘subset’ of moral norms (again, understanding moral norms also in isolation and independently from any larger ethical and moral theory). ⁵⁹

Dindjer further analyzes this core commitment in terms of an Identity Thesis and a Correspondence Thesis. The Identity Thesis states: “Necessarily, every legal obligation (privilege, power, etc.) is a moral obligation (privilege, power, etc.).” ⁶⁰ Dindjer describes this Identity Thesis as asserting “a metaphysical relationship between legal and moral norms” (and thus the former norms are just “a type of” the latter norms). ⁶¹ The Correspondence Thesis basically states that “wherever one has a legal obligation, there exists a moral obligation with the same content. If this were false, the Identity Thesis could not be true.” ⁶² To clarify this notion of correspondence, Dindjer adds the following:

Notice that asking whether legal and moral obligations correspond, in the relevant sense, does not assume they are separate entities whose content is independently knowable. For legal and moral obligations to correspond is just for them to have the same content. Every norm corresponds to itself, since it has the same content as itself. If legal obligations were moral obligations, they would correspond to them by being them. ⁶³

Dindjer is clearly aware that his focus on the content of legal norms versus the content of moral norms and his talk of a ‘correspondence’ between legal norms and moral norms makes it seem as if he is assuming a two-system view of law and morality. ⁶⁴ However, by explicitly acknowledging that this would be a mistaken view of his characterization of the one-system’s core commitment (as represented in both the Correspondence and Identity Theses) and by emphasizing that legal norms and moral norms are metaphysically the same (regardless of any ‘systemic’ account of law or any larger ethical or moral theory), he hopes that readers will avoid this rather obvious (and question-begging) misinterpretation of the Identity and Correspondence Theses.

With this characterization of the one-system position, Dindjer proceeds to consider counterexamples. We are implicitly encouraged by Dindjer’s approach to trust our common-sense moral views or intuitions, in abstraction from any ethical or political theory, and then assess areas of disconnect between what our moral intuitions say about our obligations and duties and what common or mundane legal practices say about our obligations, powers, and privileges (like those legal practices that allow for strict liability or those that allow companies to pollute the earth). He will later bring in “‘content-independent’ considerations, such as democracy, fairness, solving coordination problems, and the vindication of legitimate expectations” to argue that none of these content-independent considerations, either considered by themselves or in some patchwork combination, are “sufficiently reliable” to vindicate the Correspondence Thesis. ⁶⁵ All of this sets the stage for Dindjer’s more detailed outline of counterexamples against the one-system position (i.e., to support the conclusion that legal normativity is not subsumable into morality or into any “otherwise robust normativity”) and in support of the conclusion that the one-system version of anti-positivism has taken a “wrong turn.” ⁶⁶

It is true that if we abstract out this core commitment as Dindjer characterizes it from Dworkin’s general views on interpretation and morality, we do get a seemingly easy position to refute. Dworkin himself acknowledges that many will find his claim that law is a branch or part of political morality as “absurd” or “paradoxical,” given that “[i]t seems to suggest, idiotically, that a community’s law is always exactly what it should be.” ⁶⁷ In other words, the claim that law is a branch of morality seems to suggest that legal norms are moral norms (or a subset of moral norms); this, in turn, portrays all legal norms as being as they morally ought to be and legal obligations (as well as powers and privileges) as corresponding to moral obligations (as well as powers and privileges). It is not hard to find counterexamples (as Dindjer amply provides). On the surface, it seems like Dworkin’s claim about law as a branch of morality is, at best, seriously confused (or a ‘wrong turn’ for anti-positivism). However, I will argue that if we take seriously both Dworkin’s views on law and morality, as well as his interpretative approach to both, his one-system view can be represented in a defensible and sensible way.

Dindjer’s account of the one-system view, especially in terms of its opening characterization of the ‘core commitment,’ seems very far from Dworkin’s own interpretative approach to law or his ‘tree structure’ picture of law and morality from Justice for Hedgehogs. Instead of building law up into a branch of a complex moral and ethical tree picture (a picture that assumes his arguments about the metaphysical independence of value and a vision of mutually supporting ethical and moral principles), Dindjer’s account of the core commitment breaks down this ‘one-system’ picture into specific pieces and legal contents, representing the ‘systemic’ part of the one-system view as incidental or irrelevant to an assessment of its ‘core’ commitment. ⁶⁸ In this way, Dindjer represents the tail of the one-system view as wagging the dog; the insistence that legal obligations are a subset of moral obligations is portrayed here as more important or central than the justification and explanation of a larger system of moral principles that might make sense of this very insistence.

Further, Dindjer’s emphasis on the ‘substance’ of law’s norms (again, understood independently of the structural or institutional processes and procedures that created them or any appeal to a system of mutually supportive principles of political morality) fails to address Dworkin’s explicit comments about how this emphasis on substance versus process is reinforced by a two-system picture of law and morals. Dworkin states explicitly that the two-system picture “created an important distinction between process and substance: between the procedures through which law is created and the content of the law that is created. The long debate about law and morals concentrated on substance.… The debate left process largely alone.” ⁶⁹ In other words, the two-system view of law and morality encourages us to distinguish two distinct vantage points: a legal vantage point from which to discern legal norms, and a moral vantage point from which to morally evaluate these legal norms and discern moral norms. These distinct vantage points are characterized, at least in part, by a distinct approach or distinct processes for identifying norms in each system (the conditions for legal validity consist of non-normative social facts about properly ‘legal’ processes and procedures for making and applying law, while the conditions for moral validity are decidedly different). As a result of this two-system picture, an observer-theorist seeking to ‘compare’ or ‘connect’ these two disparate systems is encouraged to abstract from these distinct processes and procedures (discernable in each vantage point) and focus only on a comparison of the substance or content of norms (i.e., what results from these distinct processes and distinct vantage points). But if we reject this two-system picture of law and morality and see law as ‘systematically’ interdependent with political morality, we must turn our attention to the processes and structural parts of law in order to understand this interdependence. Thus, Dworkin states, “once we reject the two-systems model, and count law a distinct part of political morality, we must treat the special structuring principles that separate law from the rest of political morality as themselves political principles that need a moral reading.” ⁷⁰

If this reading of Dworkin is correct, then any adequate critical analysis of Dworkin’s ‘one-system’ picture should focus on the moral reading of the ‘structural features’ of law, rather than just the ‘substance’ or content of legal norms. The structural features of law are, for Dworkin, what he means by the “phenomenon of institutionalization” that distinguishes law from other parts of political morality. ⁷¹ Only a moral reading of these structural features enables us to see the interdependences of law and morality implicit in Dworkin’s interpretative approach. It is the neglect of these basic processes or structural elements that is reinforced by an oversimplistic two-system picture of law and morality. Further, the reduction of these structural features to some non-normative social facts about legal practice (arguably what Hart and Raz do with the law-making and law-applying processes) represents legal structures as unchallengeable aspects of a legal system from a legal vantage point. ⁷² However, with a moral reading of these structural features impacting on law-making and law-applying (a moral reading implicit in an interpretative approach to ‘law’ and ‘legal practice’), we must see how these structural principles fit into an overall justificatory picture of political morality.

As an illustration of a “special structuring” principle, Dworkin gives the example of a principle of parliamentary supremacy in Britain. ⁷³ In this passage, he points out how, some 50 years before the publication of Justice for Hedgehogs, law schools in England treated this structuring principle as an unchallengeable ‘social fact’ of Britain’s legal system. However, if one is aware of the history, it is clear that this structuring principle was not always considered an unchallengeable fact (see, for example, Lord Coke’s appeal to natural rights in the 17th century). ⁷⁴ Further, with the recognition of the importance of human rights, it is not considered an unchallengeable fact today. Dworkin’s point is that these structural principles should always be seen not as some unchallengeable social fact determining a strictly legal vantage point, but as principles in need of continual justification in the context of a system of other principles of political morality and new circumstances in life.

Clearly, Dworkin’s own one-system approach introduces a dynamic or temporal element into the striving for justifications for these special structural principles of law. ⁷⁵ This means that the structural principles of different legal systems may differ from one to another (and change at different times in terms of their relation to other principles of political morality); but the striving to justify the coercion used by the ‘artificial collective body’ with reference to justice, equality, and liberty is intrinsic to law and its institutionalization of political morality. His point is not that ‘morality’ is relative to a time and place (a point he explicitly denies with his arguments for the metaphysical independence of value), but that the striving to justify our use and practices of coercion by the ‘artificial collective person’ is compatible with a rethinking and reshaping of structural processes and principles (for instance, the principle of parliamentary supremacy) in the context of other political principles over time.

Finally, the fact that social facts and conventions, no doubt, shape our legal practices and legal obligations does not, by itself, distinguish law from morality (as some versions of the two-system view would maintain); social facts and conventions shape our personal moral obligations, too. ⁷⁶ In this way, particular customary practices and traditions can be seen as realizations of more general moral and ethical principles in a similar way that a particular institutionalization of law is a way of realizing more general political principles. Dworkin’s comparison of the moral dynamics within a family (with its story of conflicts, the use of coercion, and the relevance of family history) to the institutionalization of law is meant to bring out a number of comparisons between law and personal morality (and thus to deny some versions of the orthodox two-system view).

Both cases involve attempts to justify the use of coercion by some authority. Both cases involve appeal to past practice or what was done in the past as relevant for determining what is ‘fair’ now in dealing with a present conflict. In this way, the appeal to facts about past practice is an appeal to a moral reason and not merely frustrated expectations. ⁷⁷ Both represent a “dynamic morality,” since, like law, “as pronouncements are made and enforced on concrete occasions, that special family morality shifts.” ⁷⁸ In this way, both cases involve ‘structuring principles’ and a mutually supporting system of general ethical and moral principles that are the basis for justifying the use of coercion. But, most fundamentally for Dworkin’s one-system view, both cases are interpretative in how they treat these structuring principles and general moral principles in application to specific cases. Thus, Dworkin acknowledges: “The best interpretation of the structuring principles may well require that some decision now regretted nevertheless be followed as a precedent. Fresh interpretation of these principles might well mitigate the difference between family and more general morality. But it cannot erase the difference.” ⁷⁹ Thus, he explicitly acknowledges the possibility of a divide between what a family’s morality (or institutional law) may require at a given time and what it ought to require. He sometimes describes this divide as a divide between integrity and justice. ⁸⁰ But for our purposes, Dworkin is not saying that the law always is as it ought to be (any more than he is claiming that a family’s morality always is as it ought to be). However, he concludes: “The family story nicely illustrates how a distinction between what law is and what it ought to be can arise as a complexity within morality itself.” ⁸¹

Although there are challenges for anyone defending Dworkin’s one-system view of law and morality (and I do not claim to have dealt with all the objections that could be raised against his views on morality and his interpretative approach), I hope that I have shown that it is not as easily refutable as Dindjer makes it seem. I also hope to have shown that there are good reasons for rejecting the orthodox two-system view of law and morality. I do believe that the problems with this orthodox two-system view of law and morality are significant and have undermined attempts to move forward from old debates within the philosophy of law. Dworkin’s interpretative approach has the merit of refocusing the debate in legal theory on the structural features of law—whether we are referring to the reliance on precedent, or the separation of powers, or the striving for rule of law principles crucial for the guidance of rational beings. Although Dworkin’s interpretative approach deals with these structural features of law with an unabashedly moral and political viewpoint, it holds the promise of justifying changes to these structural features that will make law a better realization of what it could be.