University of Kansas, Spring 2005
Philosophy 674: Philosophy of Law
Ben Eggleston—eggleston@ku.edu

Class notes: Dworkin

The following notes correspond roughly to what we cover, including at least a portion of what I put on the board or the screen, in class. In places they may be more or less comprehensive than what we actually cover in class, and should not be taken as a substitute for your own observations and records of what goes on in class.

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  1. chapter 1: “What is Law?”
    1. three main kinds of disagreement about law
      1. factual
      2. legal
      3. moral (often called the question of fidelity)
    2. two kinds of legal disagreement
      1. empirical: disagreement about what bills made it through Congress, what the statute books say, etc.
      2. theoretical: disagreement about the grounds of law—what empirical facts would have to be true in order for something to be law
    3. theories with implications for theoretical disagreement
      1. semantic theories: In deciding what the law is (i.e., which propositions of law are true and false), lawyers and judges use mainly the same factual criteria.
      2. positivist theories: In deciding what the law is, lawyers and judges use factual criteria referring to certain historical events. (So, positivist theories are a subset of semantic theories.)
      3. plain-fact theories: In deciding what the law is, lawyers and judges use factual criteria referring to certain historical events having to do with legal institutions. (So, plain-fact theories are a subset of positivist theories.)
      4. The theories of Austin and Hart are examples of plain-fact theories.
    4. implications of these views
      1. Lawyers and judges mainly agree on the grounds of law.
      2. Disagreement about the grounds of law hardly ever happens.
      3. When such disagreement appears to arise, something else is actually going on instead, such as one of the other four kinds of disagreement, or disagreement about how to repair or improve the law.
    5. Dworkin’s objection to semantic theories: The reasoning we see employed in particular cases shows that the disagreement occurring is about the grounds of law, not something else.
    6. the challenge for chapter 2: to show how judges and lawyers using different factual criteria can still be talking about the same thing when they talk about the law
  2. chapter 2: “Interpretive Concepts”
    1. the challenge for chapter 2: to show how judges and lawyers using different factual criteria can still be talking about the same thing when they talk about the law
    2. the argument
      1. Lawyers and judges using different factual criteria are disagreeing about creative interpretation.
      2. When people disagree about creative interpretation, they can still be talking about the same thing.
      3. Therefore, when lawyers and judges use different factual criteria, they can still be talking about the same thing.
    3. What is creative interpretation? (How are premises 1 and 2 both true?)
      1. Creative interpretation is interpretation of something created by people as an entity distinct from themselves, such as a social practice, tradition, or work of art.
      2. Creative interpretation is constructive: it’s “a matter of imposing purpose on an object or practice in order to make of it the best possible example of the form or genre to which it belongs” (p. 52).
      3. This means that interpreters with different values may settle on different interpretations.
      4. Different interpretations may involve different factual criteria.
        1. For example, some interpreters of courtesy might think that whether something is courteous depends on whether it preserves traditional class distinctions—their factual criteria would have a lot to do with this. Others might think it depends on whether it promotes individual achievement—their factual criteria would have a lot to do with this.
        2. Another example: some interpreters of the law might think that whether something is legal or not depends on precedent—their factual criteria would have a lot to do with this. Others might think it depends on legislative intent—their factual criteria would have a lot to do with this.
    4. What are the stages of interpretation? (clarification of step 2, above)
      1. identifying the basic content of the practice
      2. setting on some justification of the practice as the best justification that fits
      3. adjusting one’s sense of what the practice “really” requires based on this justification
    5. objection: interpreting something involves figuring out the intentions and motives of its authors or creators
    6. reply
      1. Even artistic interpretation requires the constructive approach.
      2. Whenever we ought to discover intentions, it is only because the constructive approach so requires.
      3. The techniques of ordinary conversational interpretation are inappropriate for interpreting a social practice (such as courtesy or law).
  3. chapter 7: “Integrity in Law”
    1. p. 225.9 - main thesis: “propositions of law are true if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community’s legal practice” (p. 225). (This is a statement of the grounds of law that judges should recognize.)
    2. p. 227.5 - law as containing not only legal decisions but also principles
    3. chain novel
      1. pp. 230–231 - two dimensions of fit
      2. why a chain novel?
    4. judging different from legislating
    5. objection: judging should be morally neutral
    6. objection: what Hercules does goes beyond what integrity requires