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Law, Moral Facts and Interpretation: A Dworkinian Response to Mark Greenberg’s Moral Impact Theory of Law

Published online by Cambridge University Press:  08 February 2019

Thomas Bustamante
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Abstract

Ronald Dworkin’s philosophy of law, in its mature version, is grounded in at least two central claims: first, a thesis about law and morality, which we might call the One-System Thesis; second, a thesis about how moral and legal propositions can be said to be true or false, which we might call the Interpretive Thesis. While the One-System Thesis holds that law and morality form a single system, the Interpretive Thesis makes two distinct claims: first, truth of interpretive propositions—such as moral and legal propositions—must be established from within the practice in which they figure; second, the soundness of an interpretive proposition is related to the purpose of the practice under consideration. Mark Greenberg’s Moral Impact Theory of Law accepts the One-System Thesis while rejecting the Interpretive Thesis. The Moral Impact Theory is a metaphysical theory of how moral facts rationally determine the content of the law. Its main contention is that the actions of legal institutions have an impact on the moral obligations people have in a polity, and the content of the law is made up of the moral obligations that result from the actions of such institutions. Greenberg assumes that moral facts pre-exist and have some metaphysical priority in relation to legal facts. Moral facts must be prior and independent from legal practice in order to play a part in the rational determination of the content of the law. The point of this paper is to offer a response to Greenberg. I argue that the One-System Thesis only should be supported if the Interpretive Thesis is correct, and that without the latter the former becomes an implausible version of natural law jurisprudence.

Type
Research Article
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Canadian Journal of Law & Jurisprudence , Volume 32 , Issue 1 , February 2019 , pp. 5 - 43
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Copyright © Canadian Journal of Law and Jurisprudence 2019 

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Footnotes

The research that led to the publication of this paper was funded by The Brazilian National Council for Scientific and Technological Development (CNPq), Grant # 305645/2017-0 (CNPq Research Fellowship, Level 2). I would like to thank Brian Bix, Misabel Derzi, Saulo Matos, Thiago Decat, David Gomes, Emílio Peluso, Marcelo Cattoni and my research students Franklin Dutra, Vinicius Faggion, Igor Enríquez, Henrique Noya, Rodrigo Dornas, Tiago Clemente and Ludmila Lacerda, who provided very helpful comments on previous versions of this paper. Furthermore, I am indebted to an anonymous reviewer of the Canadian Journal of Law & Jurisprudence for the comments on the original submission.

References

1. Dworkin, Ronald, Justice for Hedgehogs (Belknap Press, 2011) at 405-07.CrossRefGoogle Scholar

2. Mark Greenberg, “The Moral Impact Theory of Law” (2014) 123:5 Yale LJ 1288 at 1290.

3. Ibid at 1288 [emphasis added].

4. Ibid at 1302.

5. Dworkin, Ronald, Justice in Robes (Belknap Press, 2006) at 34-35.Google Scholar

6. Dworkin, Justice for Hedgehogs, supra note 1 at 405.

7. Ibid at 402.

8. Ibid at 405.

9. Ibid at 301.

10. Dworkin, Ronald, Law’s Empire (Belknap Press, 1986) at 7.Google Scholar

11. Greenberg, Mark, “The Standard Picture and its Discontents” in Leslie Green & Brian Leiter, eds, Oxford Studies in Philosophy of Law, vol 1 (Oxford University Press, 2011) 39 at 56.CrossRefGoogle Scholar

12. Greenberg, “Moral Impact”, supra note 2 at 1310.

13. As Brian Bix explains, what is distinctly relevant in Greenberg’s position is not that the action of legal officials can change our moral obligations, given that most legal scholars, from natural lawyers like Thomas Aquinas to legal positivists like Joseph Raz, can easily agree with that. Greenberg’s actual contribution, which distinguishes it from mainstream legal theoretical works, is the view that the law is the set of moral obligations that result from the action of legal institutions. Institutional directives have a legal content “only to the extent that they alter our moral profile”. Brian Bix, “When Law Becomes Morality: Comments on Mark Greenberg’s Moral Impact Theory of Law” (2014) University of Minnesota Legal Studies Research Paper Series No 14-27, DOI: 10.2139/ssrn.2434075.

14. Riggs v Palmer, 115 NY 506, 22 NE 188 (1889).

15. Dworkin, Law’s Empire, supra note 10 at 17 [emphasis added].

16. Greenberg, Mark, “The Moral Impact Theory, the Dependence View and Natural Law” in Duke, George & George, Robert P, eds, The Cambridge Companion to Natural Law (Cambridge University Press, 2017) 275 at 281.Google Scholar

17. Waldron, Jeremy, “Jurisprudence for Hedgehogs” (2013) NYU Public Law and Legal Theory Working Papers, Paper 417 – 1 at 12, online: http://lsr.nellco.org/nyu_plltwp/417.Google Scholar

18. As it will become clear in this section, the account of the Interpretive Thesis that I offer in this section should not be confused with Nicos Stavropoulos’s definition of “legal interpretivism”. Legal interpretivism, for him, is a metaphysical thesis about the foundations of law; it is the view that “for any legal right or obligation, some moral principles ultimately explain how it is that institutional and other nonmoral considerations have roles as determinants of the right or obligation. In the order of explanation, morality comes first.” See Nicos Stavropoulos, “Legal Interpretivism” in Edward N Zalta, ed, The Stanford Encyclopedia of Philosophy (Summer 2014 Edition), online: https://plato.stanford.edu/archives/sum2014/entries/law-interpretivist/. Stavropoulos’ definition of “legal interpretivism” should be avoided for four reasons. First, it is unable to distinguish the One-System Thesis, which is commonly held by Dworkin and Greenberg, from the Interpretive Thesis, which is the view that Dworkin upholds about how any moral norms are determined; second, it is presented as a metaphysical thesis or a general ontology of law, and this is not the position supported by Dworkin, who thinks that legal interpretation is needed only as long as we are considering a doctrinal concept of law; third, it assumes a precedence of morality with regards to law, which is inaccurate once we read law and morality as a single normative system; and finally, Stavropoulos’ concept of “legal interpretivism” says nothing about how moral truths are redeemed and moral reasoning is conducted.

19. The expressions “interpretive” and “political” concepts are used in the same sense in different works of Ronald Dworkin. See Dworkin, Justice in Robes, supra note 5 at 145-59, for “political” concepts, and Dworkin, Law’s Empire, supra note 10 at 45-86 and Dworkin, Justice for Hedgehogs, supra note 1 at 158, for “interpretive” concepts.

20. Dworkin, Justice for Hedgehogs, supra note 1 at 158.

21. For Dworkin’s account of concept types, including a clear distinction between “criterial”, “natural-kind” and “interpretive” concepts, see Dworkin, Justice in Robes, supra note 5 at 9-12, 145-62, 223-40 and Dworkin, Justice for Hedgehogs, supra note 1 at 157-88.

22. Dworkin, Justice for Hedgehogs, supra note 1 at 160.

23. Dworkin, Justice in Robes, supra note 5 at 142.

24. Ibid at 225-26.

25. Ibid at 142.

26. Dworkin, Justice for Hedgehogs, supra note 1 at 10.

27. For Dworkin, an interpreter “must interpret what has gone before because he has a responsibility to advance the enterprise in hand rather than strike out in some new direction of his own. So he must determine, according to his own judgment, what the earlier decisions come to, what the point or theme of the practice so far, taken as a whole, really is.” Dworkin, Ronald, A Matter of Principle (Belknap Press, 1985) at 159 [emphasis in original].Google Scholar

28. Ibid at 160.

29. Dworkin, Law’s Empire, supra note 10 at 47.

30. Dworkin, Justice for Hedgehogs, supra note 1 at 152.

31. Ibid at 153-54.

32. Ibid.

33. Ibid.

34. Ibid at 7.

35. Dworkin, Justice in Robes, supra note 5 at 224.

36. Dworkin, Law’s Empire, supra note 10 at 52.

37. Ibid.

38. Ibid at 13 [emphasis added].

39. Ibid at 82.

40. Ibid at 80-81.

41. Ibid at 83.

42. Ibid at 90.

43. Ibid.

44. Dworkin, Ronald, “Hart’s Posthumous Reply” (2017) 130 Harv L Rev 2096 at 2097.Google Scholar

45. Ripstein, Arthur, “Introduction: Anti-Archimedeanism” in Ripstein, Arthur, ed, Ronald Dworkin (Cambridge University Press, 2007) 1 at 9.CrossRefGoogle Scholar

46. Greenberg, Mark, “How Facts Make Law” in Hershovitz, Scott, ed, Exploring Law’s Empire—The Jurisprudence of Ronald Dworkin (Oxford University Press, 2006) 225 at 227.Google Scholar

47. Ibid at 225.

48. Ibid at 226.

49. Ibid.

50. The expressions “metaphysical determination” and “constitutive determination” are used by Greenberg as synonyms, and concern the descriptive facts that are considered to be the determinants of the content of the law. In the following paragraphs I will use both expressions in Greenberg’s sense, regardless of any other technical and ordinary usages of the terms.

51. Greenberg, “How Facts Make Law”, supra note 46 at 227-28.

52. Ibid at 227.

53. Mark Greenberg, “Hartian Positivism and Normative Facts: How Facts Make Law II” in Exploring Law’s Empire, supra note 46 at 268.

54. Greenberg, “How Facts Make Law”, supra note 46 at 240.

55. Ibid at 245.

56. Ibid.

57. Ibid at 246-47.

58. Ibid at 254.

59. Greenberg, “How Facts Make Law II”, supra note 53 at 271.

60. Levenbook, Barbara Baum, “How to Hold the Social Fact Thesis: A Reply to Greenberg and Toh” in Leslie Green & Brian Leiter, eds, Oxford Studies in Philosophy of Law, vol 2 (Oxford University Press, 2013) 75 at 82-83.Google Scholar

61. Ibid at 83. In response to this view, Levenbook argues that Greenberg’s demand for this type of rational intelligibility is ad hoc and, in any case, too strong, since the value facts Greenberg requires to explain the significance of the sources of law would also stand in need of something else to determine their own relevance. In her view, moral facts comprise considerations like fairness, democracy and so on. But “fairness and the like are not, on their face, reasons for the legal content being what it is, given that law is a social artifact; and that is a failing they share with social facts.” Ibid at 88. If Levenbook is correct, the “explanatory force” of citing “non-legal normative facts” is not self-evident, and thus “cannot meet Greenberg’s own demands.” Ibid at 88.

62. Dworkin, Justice for Hedgehogs, supra note 1 at 24-25.

63. Dworkin, “Hart’s Posthumous Reply”, supra note 44 at 2098.

64. Guest, Stephen, Ronald Dworkin, 3rd ed (Stanford University Press, 2013) at 76.Google Scholar

65. Patterson, Dennis, “Dworkin and the Semantics of Legal and Political Concepts” (2006) 26:3 Oxford J Legal Stud 545 at 557 n 64.CrossRefGoogle Scholar Patterson thinks, for this reason, that Dworkin should avoid any analogy with natural kinds in order to explain his account of political concepts. The key assumption about natural-kind concepts is that they have some “deep structure” that determines what counts as a correct and incorrect application of them. Dworkin should refrain from attributing to political concepts any deep structure that appears similar to that of the natural-kind concepts that he purported to avoid, otherwise he will end up needing something that he claims is not possible for value concepts, which is a procedure or a metaphysical test for resolving disagreements in matters of value. Ibid at 553-54.

66. Dworkin, Justice in Robes, supra note 5 at 225.

67. Ibid at 147.

68. Greenberg, “How Facts Make Law”, supra note 46 at 227.

69. Greenberg, “Moral Impact”, supra note 2 at 1302.

70. Although Greenberg assumes the existence of fundamental value facts, he does not make it clear how these value facts are determined. Since no account is provided in order to avoid the problem of circularity (given that further facts would be required to ground these fundamental value facts), it is fair to suggest that he is supposing that just like the Basic Goods in Aquinas’ account of Natural Law, the ultimate moral facts “are not derived or inferred from anything.” See John Finnis, Natural Law and Natural Rights, 2nd ed (Oxford University Press, 2011) at 35.

71. There are influential legal philosophers who reject this claim and subscribe to Greenberg’s interpretation of Dworkin. Scott Hershovitz, for instance, recently attributed to Dworkin a metaphysical theory that holds that law has some kind of “distinctive normativity” when compared to moral or pragmatic considerations. Dworkin would think that there are some “distinctively legal upshots—that is, normative or quasi-normative upshots that are legal but not moral or prudential.” Scott Hershovitz, “The End of Jurisprudence” (2015) 124:4 Yale LJ 1160 at 1165. Dworkin’s disagreement with positivists would be a metaphysical disagreement about “what facts determine the content of law” (ibid at 1167), in such a way that “the only difference is that Dworkin took morality to play a part in determining the content of distinctively legal rights, obligations, privileges and powers.” Ibid at 1195. All participants in this debate, including Dworkin, would “purport to provide a metaphysical account of our legal rights, obligations, privileges, and powers.” Ibid. I am skeptical about this description of Dworkin’s conception of law. Hershovitz neglects Dworkin’s own statements on the nature of jurisprudence and ends up taking for granted the assumption that Dworkin—just like Hart—is proposing an Archimedean legal theory to explain the concept of law. But Dworkin’s position is not that jurisprudence is a metaphysical inquiry. His actual view is that when we—I mean “we” as citizens, as lawyers, as officials or as professional legal theorists—join a jurisprudential controversy, we raise arguments and counter-arguments from within the practice we participate. The kind of “normativity” of law is not unique to a specific domain, for law functions in the same way as all interpretive concepts do. At an abstract level, arguments that resolve jurisprudential disagreements about the best conception of law are moral arguments, and these arguments are not antecedently-given facts we are merely asked to ascertain. Well understood, they are ordinary moral arguments. Just as legal standards lack a second-order point of view from which we can describe them, moral principles (or, if you prefer, moral facts) lack a meta-ethical point of view from which we can establish their truth. Once we understand this point, we can see that in fact Dworkin tries to avoid the metaphysical controversy that Hershovitz mistakenly categorized as the “Hart-Dworkin debate” (i.e., a controversy about what facts make law). As a matter of fact, Hart himself did not fail to notice this important difference between the two theoretical projects, when he wrote in the Postscript to The Concept of Law that “legal theory conceived in this [Hart’s] manner as both descriptive and general is a radically different enterprise from Dworkin’s conception of legal theory as in part evaluative and justificatory and ‘addressed to a particular culture’”. HLA Hart, The Concept of Law, 2nd ed by Penelope A Bulloch & Joseph Raz (Oxford University Press, 1994) at 240. Instead of focusing on a metaphysical debate about the necessary properties of law, Dworkin was concerned with a theory of law which is a branch of a theory of political legitimacy. His interpretivist account of “what the law is” should be seen not as a metaphysical enquiry, but rather as part of the answer of the more general question of what our political obligations are.

72. Greenberg, “Moral Impact”, supra note 2 at 1299-300 n 28.

73. Dworkin, Justice for Hedgehogs, supra note 1 at 406.

74. Greenberg, “The Moral Impact Theory, the Dependence View and Natural Law”, supra note 16 at 283.

75. Dworkin, Justice for Hedgehogs, supra note 1 at 403; Greenberg, “The Moral Impact Theory, the Dependence View and Natural Law”, supra note 16 at 283-84.

76. Greenberg, “The Moral Impact Theory, the Dependence View and Natural Law”, supra note 16 at 284.

77. Ibid.

78. Dworkin, Justice for Hedgehogs, supra note 1 at 9.

79. Ibid.

80. Ibid at 37.

81. Guest, Stephen, “The Unity and Objectivity of Value” (2011) 25:4 Ethics & Int’l Affairs 463 at 469.CrossRefGoogle Scholar

82. Dworkin, A Matter of Principle, supra note 27 at 171.

83. Greenberg, “The Moral Impact Theory, the Dependence View and Natural Law”, supra note 16 at 284 n 23.

84. Ibid.

85. Dworkin, Law’s Empire, supra note 10 at 139.

86. Dworkin, Justice in Robes, supra note 5 at 2.

87. Stephen Perry, “Associative Obligations and the Obligation to Obey the Law” in Exploring Law’s Empire, supra note 46 at 186. In the same vein, Dan Priel argues that the core of the difference between analytical legal positivism and Dworkin’s theory of law lies in the explanation of political legitimacy: the former maintains the “separation between the jurisprudential question of validity and the political question of legitimacy” (Dan Priel, “The Place of Legitimacy in Legal Theory” (2011) 57:1 McGill LJ 1 at 18), whereas the latter argues that jurisprudence is continuous with legal practice because “it is jurisprudence that can explain how coercive acts of the state—including those involved in legal decisions—are (potentially) legitimate, and are not merely force backed by the threat of punishment.” Ibid at 23.

88. Dworkin, Justice for Hedgehogs, supra note 1 at 331. The paradigmatic example of a legal right for Dworkin is a “right enacted by a legislative body of a legitimate government to be enforced on demand of individual citizens through the decisions, if necessary, of an adjudicative institution like a court.” Ibid. These rights are different from mere political rights because “no nation turns all political rights into constitutional rights or even ordinary legal rights.” Ibid. Dworkin thinks that the U.S. legal system, for instance, “failed in its duty” to its people to provide adequate health care or insurance for them. Ibid. Political rights, on Dworkin’s view, create moral obligations for governments and legislatures, but do not create enforceable rights and obligations for citizens.

89. Waldron, Jeremy, “What is Natural Law Like?” in Keown, John & George, Robert P, eds, Reason, Morality and Law: The Philosophy of John Finnis (Oxford University Press, 2013) 73 at 78.Google Scholar

90. Greenberg, “The Moral Impact Theory, the Dependence View and Natural Law”, supra note 16 at 286.

91. Ibid.

92. Ibid.

93. Dworkin, Ronald, Taking Rights Seriously, revised ed (Belknap Press, 1978) at 47.Google Scholar

94. Ibid.

95. Greenberg, “Moral Impact”, supra note 2 at 1299.

96. Ibid at 1301.

97. See my comment on Stavropoulos, supra note 18.

98. See my comment on Greenberg’s account of justification below at note 126.

99. Greenberg, “The Moral Impact Theory, the Dependence View and Natural Law”, supra note 16 at 297.

100. Dworkin, Justice for Hedgehogs, supra note 1 at 23-39.

101. Ibid at 131.

102. Ibid at 101.

103. Greenberg thinks that “fit should be understood as an aspect of justification”, for otherwise Dworkin would rely on “two unrelated dimensions, one non-normative and one normative”, without any way of “balancing them against each other.” Greenberg, “Moral Impact”, supra note 2 at 1300 n 29. Greenberg is probably right about this. Nonetheless, because justification is something made within the practice of law, by participants of this practice and with the arguments that these participants employ when they succeed in establishing the truth of their legal propositions, justification must be also an aspect of fit.

104. As Dworkin explains in his early essay Hard Cases, reprinted in Taking Rights Seriously, “institutional history acts not as a constraint on the political judgments of judges, but as an ingredient of that judgment, because institutional history is part of the background that any plausible judgment about the rights of an individual must accommodate.” In short, “political rights are creatures of both history and morality.” Dworkin, Taking Rights Seriously, supra note 93 at 87.

105. Dworkin, Justice in Robes, supra note 5 at 50-53.

106. Postema, Gerald J, “Protestant Interpretation and Social Practices” (1987) 6:3 Law & Phil 283 at 286.CrossRefGoogle Scholar

107. Ibid.

108. Dworkin, Law’s Empire, supra note 10 at 14.

109. Greenberg, “Moral Impact”, supra note 2 at 1302. The quote inside Greenberg’s paragraph is from Dworkin, Law’s Empire, supra note 10 at 262.

110. Greenberg, “The Moral Impact Theory, the Dependence View and Natural Law”, supra note 16 at 298.

111. Ibid.

112. See Dworkin, Law’s Empire, supra note 10 at 261-62, where it reads: “The second elaboration [of the objection that Hercules is disingenuous] does not rely on skepticism: ‘Hercules is a fraud even if morality is objective and even if he is right that the principle of foreseeability he settled on is objectively fairer and more just. He is a fraud because he pretends he has discovered what the law is, but he has only discovered what it should be.’ That is the form of the objection I shall consider here. We ask of a conception of law that it provide an account of the grounds of law—the circumstances under which claims about what the law is should be accepted as true or sound—that shows why it licenses coercion. Law as integrity replies that the grounds of law lie in integrity, in the best constructive interpretation of past legal decisions, and that law is therefore sensitive to justice in the way Hercules recognizes. So there is no way Hercules can report his conclusion about Mrs. McLoughlin’s case except to say that the law, as he understands it, is in her favor. If he said what the critic recommends, that she has no legal right to win but has a moral right that he proposes to honor, he would be misstating his view of the matter. He would think that a true account of some situations—if he found the law too immoral to enforce, for example—but not of this one. A critic might disagree with Hercules at many levels. He might reject law as integrity in favor of conventionalism or pragmatism or some other conception of law. Or he might accept it but reach different conclusions from Hercules because he holds different ideas about the necessary requirements of fit, or different convictions about fairness or justice or the relation between them. But he can regard Hercules’ use of ‘law’ as fraudulent (or grammatically wrong) only if he suffers from the semantic sting; only if he assumes that claims of law are somehow out of order when they are not drawn directly from some set of factual criteria for law every competent lawyer accepts.”

It seems to be clear, once we read the whole paragraph, that Dworkin is not advocating that when the concept of law is used in an interpretive way it can be too immoral to be enforced. Perhaps a clarification of Dworkin’s use of the interpretive concept of law can be helpful here. Dworkin thinks that the concept of law is interpretive in the context of the doctrinal debates we have in a political community: “Interpretive theories are by their nature addressed to a particular legal culture, generally the culture to which the authors belong.” Ibid at 102. It makes sense to read the law as an interpretive concept when it matters from the practical point of view to know what our rights and duties are. In the case of judges and citizens, they have a political responsibility of interpreting the law in order to make the best moral sense of it. When the law is applied in that way, Law as Integrity does not admit that the law can be too unjust to be enforced. There might be exceptional or historic examples in which Dworkin could admit this conclusion, but only when we don’t use the concept of law in a doctrinal way, i.e., when we don’t use the concept of law to figure out what our enforceable obligations are. The question whether Nazi Germany had a “law” is one of these cases. There is, for Dworkin, a sense in which one can sensibly say that Nazis had a legal system: one can argue that the institutional enactments and rules of their institutions are “law” in a “pre-interpretive sense.” Ibid at 103. That is to say, we can understand the talk of a historian or a sociologist who speaks of Nazi decrees as “law” in some general sense, even though we can clearly distinguish that sense from the fully interpretive sense that we use in our doctrinal debates. By the time Dworkin wrote Law’s Empire, his distinction between a sociological, a taxonomic and a doctrinal concept of law had not appeared in his philosophical works. But it is easy to see now what he meant at that time: we can use a sociological or a taxonomic concept of law to explain foreign or historical legal systems we despise, but since we assume that this class of extremely unjust systems can neither justify state coercion nor impose legitimate obligations upon their citizens, we do not adopt an interpretive attitude towards these systems. Furthermore, Dworkin is convinced that the important question is not how we call Nazi statutes, but rather how we should act given their existence. The important issue is the normative issue, not the semantic question of how we should call grossly immoral authoritative sources. Ibid at 102-08. When state violence reaches the level that we observed in Nazi Germany, overall integrity is not a possible ideal and there is no reason to adopt an interpretive attitude towards the law. Once we grant that we cannot plausibly argue that one’s moral judgment should fit the practice of Nazi officials, Law as integrity is not the appropriate conception for this extremely unjust system. Rather, it is a jurisprudential theory for communities that recognize a duty of equal respect and consideration for each citizen. In the communities to which Law as Integrity applies, integrity “insists that each citizen must accept demands on him, and make demands on others, that share and extend the moral dimension of any explicit political decisions. Integrity therefore fuses citizens’ moral and political lives: it asks the good citizen, deciding how to treat his neighbor when their interests conflict, to interpret the common scheme of justice to which they are both committed just in virtue of citizenship.” Ibid at 189-90. Dworkin is aware, however, that there might be situations where a judge in good faith—call him Judge Siegfried—might be asked to adjudicate in accordance with the laws of a wicked legal system. In this situation, a new difficulty arises: “In ordinary cases in our own legal system, we reach opinions about hard cases by asking which decision flows from the best interpretation we can give of the legal process as a whole. In our new example, however, we cannot do this, because we believe that Siegfried’s legal system is too wicked to be justified in any overall interpretation.” Ibid at 106. What should Siegfried do? The Dworkinian answer is that Siegfried might take up different intellectual attitudes, depending on the context and the factual circumstances of the case. It might be the case, for instance, that we end up with a fully skeptical interpretation of Siegfried’s judicial duties: “We might decide that the interpretive attitude is wholly inappropriate there, that the practice, in the shape it has reached, can never provide any justification at all, even a weak one, for state coercion.” Ibid at 105. If this is the case, perhaps we should advise Siegfried to “simply ignore legislation and precedent altogether, if he can get away with it, or otherwise do the best he can to limit injustice through whatever means available to him.” Ibid. If, on the contrary, we believe there are parts of the legislation that can be applied without flagrant injustice, such as, for instance, in an “ordinary contract case that seems to involve no issue of racial or political discrimination or otherwise any piece of tyranny” (ibid at 105), we might advise Siegfried to adopt a more “local” interpretation of the legal materials, minimizing the impact of the overall system of wicked enactments. In both cases, however, we are dealing with legal pathologies, i.e., with normative systems where Dworkin’s interpretive attitude is unavailable—or at least severely restricted—and we are not using a properly interpretive concept of law.

113. Postema, supra note 106 at 284.

114. Stavropoulos, supra note 18.

115. Waluchow, Wil, Inclusive Legal Positivism (Oxford University Press, 1994) at 44Google Scholar [emphasis added], citing Dworkin, Law’s Empire, supra note 10 at 225.

116. Dworkin, Law’s Empire, supra note 10 at 176.

117. Ibid 176-77.

118. Ibid at 200.

119. This point is the basis of a powerful objection to the application of Dworkin’s theory in the realm of international law. According to the objection, “interpretivism as a theory of law relies on the very existence of community and more importantly a community which is aimed at … equal concern and respect for individual lives.” Başak Çali, “On Interpretivism and International Law” (2009) 20:3 Eur J Int’l L 805 at 817. For an attempt to show that Dworkin’s theory survives this criticism, see Thomas Bustamante, “Revisiting Dworkin’s Philosophy of International Law: Could the Hedgehog Have Done it Any Other Way?” (2017) 30:2 Can JL & Jur 259.

120. Guest, supra note 64 at 19.

121. As Ronaldo Macedo explains, “for him [Dworkin], legal practices occur within and impact a context. This contextual impact of law is measured and evaluated in moral terms. For this reason, the concept of law is a political concept. It is important to stress that what makes it political is the presence of a point in reference to a claim for moral legitimacy. This is not about acknowledgment of its political nature simply because it involves an influence from interests articulated in the form of power or because they report to a public differentiation between friends and enemies, but rather a demand for moral legitimacy of the exercise of power itself. Ronaldo Porto Macedo Jr, “On How Law is Not Like Chess—Dworkin and the Theory of Conceptual Types” in Thomas Bustamante & Bernardo Fernandes, eds, Democratizing Constitutional Law (Springer, 2016) at 304.

122. Dworkin, Law’s Empire, supra note 10 at 109.

123. Ibid.

124. Dworkin, Justice in Robes, supra note 5 at 51.

125. Perry, supra note 87 at 99; Priel, supra note 87 at 21-28.

126. We should pause to consider an argument that Greenberg levies against Dworkin when he considers the concept of justification in Law as Integrity. For Greenberg, Dworkin’s notion of justification includes a requirement of fit with existing practices, and therefore it cannot be the “ordinary notion” of justification. On Greenberg’s description of the “ordinary” view, “for an action to be morally justified is for it to be supported or required by the balance of reasons.” Greenberg, “Moral Impact”, supra note 2 1301 n 29. Given that some actions taken by institutions “are not supported by the balance of reasons”, when Dworkin seeks for principles that justify these actions “he is seeking for principles that are not in fact morally justified in the ordinary sense.” Ibid. In other words, “Dworkin’s idea is that in trying to find the principles that best justify the relevant practices, there is a trade-off between increasing the degree of fit and improving the moral merit of the principles.” Ibid. At first sight, one can think that there might be some truth in this description of Dworkin’s position in Law’s Empire, since Dworkin characterizes “integrity” as a political value that can come into conflict with the values of “justice” and “fairness.” Dworkin, Law’s Empire, supra note 10 at 178. Dworkin’s position was, in fact, that integrity is a political value “independent” from others such as justice and fairness. This position, however, changed in Justice for Hedgehogs, where Dworkin explicitly upholds the thesis of the “Unity of Value” and claims that in the realm of value—which includes ethics, morality, politics and law—there is no principle or single proposition that can be defined or interpreted independently of the others. In a critical—yet sympathetic—comment, Jeremy Waldron criticized Dworkin’s Law’s Empire view because it is based on a “category mistake” consistent in treating these values as “to some degree independent of one another.” Dworkin, Law’s Empire, supra note 10 at 177. Waldron’s point is that justice, integrity and equity are not independent in the sense accepted by Dworkin in Law’s Empire, given that each of these values is “functionally related to the other.” Jeremy Waldron, Law and Disagreement (Oxford University Press, 1999) at 196. On Waldron’s view, “any putative trade-off between justice and integrity begs the question of which contestant view about justice is being privileged in our account of such a trade-off. It seems better to say, not that justice and integrity conflict, but that integrity like fairness is a political value that approaches issues of justice from an oblique angle—an angle defined functionally by the need to deal with the fact that various decisions to which our community has already committed itself have been made on the basis of disparate and conflicting conceptions of justice.” Ibid at 198. I think that Dworkin’s account of interpretation in Justice for Hedgehogs is closer to Waldron than to his own original formulation in Law’s Empire, as we can read in the following excerpt: “Interpretation is pervasively holistic. An interpretation weaves together hosts of values and assumptions of very different kinds, drawn from very different kinds of judgment or experience, and the network of values that figure in an interpretive case accepts no hierarchy of dominance and subordination. The network faces the challenge of conviction as a whole; if any one strand is changed, the result may be locally seismic.” Dworkin, Justice for Hedgehogs, supra note 1 at 154. On Dworkin’s later view, integrity is the standard of success of moral propositions: “if you can’t help believing something, steadily and wholeheartedly, you’d better believe it, not of course because the fact of your belief argues for its truth but because you cannot think any argument a decisive refutation of a belief it does not loosen. In the beginning and in the end is the conviction. Integrity lies in the middle.” Ibid at 86. As we can see, Greenberg’s criticism simply does not apply to Dworkin’s Justice for Hedgehogs view, which is the one I’m considering in this paper. In Justice for Hedgehogs, there is no trade-off between integrity and justice.

Moreover, Greenberg’s criticism would be unsound even if we considered Dworkin’s earlier view that we might sacrifice justice to protect integrity. Under this earlier view, it is not correct to conclude that Dworkin’s judgment about justification is not a moral judgment, given that Dworkin’s theory is a theory of legitimacy. Even in the cases where integrity might win the competition against the best decision from the point of view of justice, we would still be morally obligated to abide by the solution at stake, given that our associative obligations and the fact that the norm under consideration is legitimately established by the community provide a moral reason for us to regard it as binding. Under Dworkin’s earlier position, we might have a conflict between the obligations we have in virtue of justice and the obligations we have in virtue of integrity; nonetheless, this is still a conflict of moral reasons. Even in Law’s Empire, Dworkin never admitted a conflict between legal obligations (when we use the concept of law in an interpretive sense) and moral obligations.

127. See Dworkin, Justice in Robes, supra note 5 at 225, where it reads: “I have argued for many years that in many circumstances moral facts figure among the basic truth conditions of propositions of law”; Ronald Dworkin, “Legal Theory and the Problem of Sense” in Ruth Gavison, ed, Issues in Contemporary Legal Philosophy—The Influence of HLA Hart (Oxford University Press, 1987) at 11, where he describes “theoretical disagreements” as disagreements “about which non-legal facts make a proposition of law true or false.” Furthermore, in a short comment on How Facts Make Law, Dworkin comes into an explicit agreement with Greenberg: “I agree, as he [Greenberg] notes, with his conclusion that ‘value facts are among the determinants of the content of the law.’” Ronald Dworkin, “Response” in Exploring Law’s Empire, supra note 46 at 310. This agreement, however, requires a qualification that places a limit in its scope, for Dworkin’s talk of “moral facts” must presuppose, on the pain of falling into a spectacular contradiction, that moral facts have an interpretive status and, as a consequence, lack any non-moral metaphysical ground.

128. Dworkin, Justice for Hedgehogs, supra note 1 at 70.

129. Ibid at 85.

130. Ibid at 118-19 [emphasis added].

131. Ibid at 11.

132. Ibid.

133. Greenberg, Mark, “What Makes a Method of Legal Interpretation Correct? Legal Standards vs. Fundamental Determinants” (2017) 130:4 Harv L Rev Forum 105 at 112.Google Scholar

134. We should stress here that there is more than a mere terminological difference between Greenberg’s talk of “moral facts” and Dworkin’s talk of objective moral truths. Moral propositions can be recognized as true, for Dworkin, only if they are demonstrated by an interpretive reasoning, which requires a holistic assessment of these moral propositions in the web of moral principles in which they are supposed to figure. As we saw above, Dworkin believes that there are no basic moral facts that can be grounded without a constructive interpretation. I would like to thank John Finnis for attracting my attention to this point.

135. Greenberg, “What Makes a Method of Legal Interpretation Correct? Legal Standards vs. Fundamental Determinants”, supra note 133 at 112-13.

136. Dworkin’s opinion in this matter is quite radical: in his view, “Archimedeans are bad metaphysicians who think that the old-fashioned, full-blooded, shameless morality of the face value [i.e., the morality we talk about in our ordinary moral and political judgments] needs non-moral foundations.” Ronald Dworkin, “Objectivity and Truth: You’d Better Believe It” (1996) 25:2 Phil & Public Affairs 87 at 127. He advocates that moral Archimedeanism is a fallacy because he is convinced that “we cannot climb outside morality to judge it from some external tribunal, any more than we can climb out of reason itself to test it from above.” Ibid at 128.

137. Dworkin, Justice for Hedgehogs, supra note 1 at 10.

138. Ibid at 101.

139. Ibid at 100.

140. Ibid at 101.

141. Greenberg, “What Makes a Method of Legal Interpretation Correct?”, supra note 133 at 110 [emphasis added].

142. Ibid [emphasis added].

143. Ibid.

144. Greenberg, “The Moral Impact Theory, the Dependence View and Natural Law”, supra note 16 at 298.

145. Dworkin, Law’s Empire, supra note 10 at 65-66.

146. Dworkin, Justice for Hedgehogs, supra note 1 at 121.

147. Ibid at 177.

148. Ibid at 120.

149. According to Greenberg, “to say that the content of the law is determined in a particular way at the most fundamental level is to say that the content of the law is determined in that way and that it is not the case that it is determined in that way because of some further determinant.” Greenberg, “What Makes a Method of Legal Interpretation Correct?”, supra note 133 at 112 [emphasis in original]. For Dworkin, on the other hand, even the most abstract principles of political morality—for instance, the value of “dignity”—must be determined in what Dworkin describes as the “interpretive” way.

150. Greenberg, “The Moral Impact Theory, the Dependence View and Natural Law”, supra note 16 at 295-97.

151. Murphy, Mark, Natural Law in Jurisprudence and Politics (Cambridge University Press, 2006) 1.CrossRefGoogle Scholar

152. Greenberg, “The Moral Impact Theory, the Dependence View and Natural Law”, supra note 16 at 275-76.

153. Murphy, Natural Law in Jurisprudence and Politics, supra note 151 at 4. According to Murphy, the “natural law account of practical rationality” maintains that “the fundamental reasons for action are certain basic goods, whose status as goods is grounded in human nature, and, further, [that] there are correct principles of practical reasonableness that govern how one ought to pursue these goods, which principles have their warrant from the features exhibited by the basic goods.” Ibid.

154. Ibid.

155. Finnis, Natural Law and Natural Rights, supra note 70 at 18.

156. Kenneth Einar Himma, “How much a Theory of Law can Tell us about the Nature of Morality: A Response to Mark Greenberg’s ‘How Facts Make Law’” (2012) 40 Dir Estado e Sociedade 132 at 141.

157. Ibid at 151.

158. Ibid at 134.

159. Mark Greenberg, “‘How Facts Make Law’ and the Nature of Moral Facts” (2012) 40 Dir Estado e Sociedade 165 at 172.

160. Ibid.

161. To recap, Greenberg is convinced that “a method of legal interpretation is correct if it accurately identifies the legal facts.” Greenberg, “What Makes a Method of Legal Interpretation Correct?”, supra note 133 at 110 [emphasis added].

162. Dworkin, Law’s Empire, supra note 10 at 65-66.

163. Finnis, Natural Law and Natural Rights, supra note 70 at 18.

164. Ibid at 65. Although Finnis writes in this fragment that basic goods are “self evident, obvious”, one may argue that this is just an unhappy sentence in the context of a more plausible theory. In a more charitable reading, one may hold that Finnis uses the word “self evident” not to mean “obvious”, or at least not obvious to everyone. Properly understood, Finnis’ point would be just that these values are not subject to further proof, but understood by observation and reflection. See ibid at 32 (I thank Brian Bix for pointing out to me this interpretation). Even the more charitable interpretation, however, concedes that these values lack a complete metaphysical demonstration.

165. Murphy, Natural Law in Jurisprudence and Politics, supra note 151 at 57.

166. Finnis, Natural Law and Natural Rights, supra note 70 at 23.

167. See Joseph, Raz, Practical Reason and Norms, 2nd ed (Oxford University Press, 1999) at 37Google Scholar where an “exclusionary reason” is defined as a “second-order reason to refrain from acting on some reason.”

168. Finnis, Natural Law and Natural Rights, supra note 70 at 233 [emphasis in original].

169. Ibid at 265.

170. Waldron, “What is Natural Law Like?”, supra note 89 at 74.

171. Murphy, Natural Law in Jurisprudence and Politics, supra note 151 at 10-11.

172. Greenberg, “The Moral Impact Theory, the Dependence View and Natural Law”, supra note 16 at 296.

173. Most contemporary natural law theories of law adopt only Murphy’s weak natural law thesis (see Finnis, Natural Law and Natural Rights, supra note 70 at 354-66 and Murphy, Natural Law in Jurisprudence and Politics, supra note 151 at 57-59). Yet, there might be an intermediate position between the weak and the strong versions of the natural law thesis, which holds that statutory enactments become “unlawful” only in the rare cases in which they produce an “extreme” or “insupportable” degree of injustice. In the years that followed World War II, this was the position of the German Constitutional Court, which was based on Gustav Radbruch’s post-war papers on legal philosophy. According to this intermediate position, which came to be known as Radbruch’s Formula, “appropriately enacted and socially effective norms lose their legal character or their legal validity when they are extremely unjust”. Robert Alexy, “A Defence of Radbruch’s Formula” in David Dyzenhaus, ed, Recrafting the Rule of Law: The Limits of Legal Order (Hart, 1999) 17. See also Gustav Radbruch, “Statutory Lawlessness and Supra-Statutory Law” (2006) 26:1 Oxford J Legal Stud 1; Gustav Radbruch, “Five Minutes of Legal Philosophy” (2006) 26:1 Oxford J Legal Stud 15; Robert Alexy, The Argument from Injustice: A Reply to Legal Positivism (Oxford University Press, 2010); Stanley L Paulson, “On the Background and Significance of Gustav Radbruch’s Post-War Papers” (2006) 26:1 Oxford J Legal Stud 17. There is an important difference, however, between the argument of Radbruch’s Formula and the Moral Impact Theory, since the former is applicable only to marginal cases in which there are extremely unjust laws, whereas the latter is meant to apply to the ordinary application of laws in reasonably just legal systems. I should add, finally, that the interpretation of Radbruch offered by Alexy (and some decisions of the German Constitutional Court) is not uncontroversial. Brian Bix, for instance, plausibly argued that Radbruch might be making not a conceptual point about the nature of law, but only a political claim about how judges should decide difficult cases. See Brian Bix, “Radbruch’s Formula and Conceptual Analysis” (2011) 56:1 Am J Juris 45, 52.

174. Shapiro, Scott, Legality (Belknap Press, 2011) at 8-9.CrossRefGoogle Scholar

175. See Finnis, Natural Law and Natural Rights, supra note 70 at 1-18.

176. Murphy, Liam, “The Political Question of the Concept of Law” in Jules Coleman, ed, Hart’s Postscript—Essays on the Postscript to ‘The Concept of Law’ (Oxford University Press, 2001) at 372.Google Scholar

177. Hart, supra note 71 at 240.

178. Finnis, Natural Law and Natural Rights, supra note 70 at 18.

179. Finnis, John, “Natural Law Theory—Its Past and Its Present” in Marmor, Andrei, ed, The Routledge Companion to Philosophy of Law (Routledge, 2012) at 25.Google Scholar

180. Ibid at 26.

181. Brennan, Jason, Against Democracy (Princeton University Press, 2016).Google Scholar

182. Murphy, “The Political Question of the Concept of Law”, supra note 176 at 384.

183. Greenberg, “The Moral Impact Theory of Law”, supra note 2 at 1334.

184. Ibid at 1330.

185. Dworkin, Law’s Empire, supra note 10 at 410.

186. Dworkin, Justice for Hedgehogs, supra note 1 at 321-22.

187. You might think that I am making a caricature of natural law, but I am not making a general claim about all natural lawyers. In fact, almost no natural lawyer sustains the strong version of the natural law thesis. According to Finnis and most experts in natural law theory, Aquinas has never held such position. If I am making such caricature, it is only because Greenberg explicitly accepts the core elements of the caricaturized version of natural law. If we think of other senses of natural law, even Dworkin might be said to be an adept of such view. If natural law is the view that “what the law is depends in some way on what the law should be”, or that “the content of law sometimes depends on the correct answer to some moral questions”, then Dworkin would happily accept to be called a natural lawyer. See Ronald Dworkin, “Natural Law Revisited” (1982) 34:2 U Fla LR 165.