Dated: Sunday, 22 September 2025 *For Educational Purposes and Private Circulation Only

Interpretation and Principles:

Taking Rights Seriously
JURISPRUDENCE
ANUJAY SHRIVASTAVA ©
FALL 2025
[Image Description: Statute of Liberty.]
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2. These slides are not meant to be exhaustive. Students are expected to read from all primary
texts themselves. The content and extracts provided hereunder are primarily for class
discussion reference.
3. These slides are meant for circulation only to the students corresponding to B.A., LL.B. (Hons.)
2023 – Section(s) A and C.
4. These slides indicate at the top corner (left or right), what is the importance of a slide or set of
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 Important!

Suggested Readings (per Course Manual)

PRIMARY TEXTS:
• Ronald Dworkin, Taking Rights Seriously (Harvard University
Press 1977) (excerpts) (Chapters 2-4).(main focus)
FURTHER READING (BEYOND COURSE MANUAL):
• Dennis Patterson, ‘Dworkin’s Critique of Hart’s Positivism’ in TORBEN SPAAK
AND PATRICIA MINDUS (EDS), THE CAMBRIDGE COMPANION TO LEGAL POSITIVISM
675.
 Not Important!

RONALD DWORKIN:
A BIO
[Image Description: Prof. Ronald Dworkin.]
 Not Important!

Ronald Dworkin
• Professor Ronald Myles Dworkin (1931-2013) was an American legal
philosopher and constitutional law scholar born in Providence, Rhode
Island, USA to a Jewish family.
• Dworkin finished his Bachelor in Arts (summa cum laude) from Harvard
University (1953), majoring in philosophy followed by a second B.A.
(First Class) from Magdalen College, Oxford as a Rhodes Scholar, where
he was examined by Professor H.L.A. Hart. Thereafter, he finished his
J.D. (magna cum laude) from Harvard Law School in 1957.

Information Source: Various Sources

 Not Important!

Ronald Dworkin
• Dworkin later worked as a Judicial Clerk to Judge Learned Hand of the US Court of Appeals for
the Second Circuit. He was also offered an opportunity to work with Justice Felix Frankfurter of
the US Federal Supreme Court, which he declined to join Sullivan & Cromwell a leading New
York City law firm.
• Afterward, he joined Yale Law School as a Full Professor of Law. In 1969, he was called upon
by University of Oxford to succeed Professor H.L.A. Hart, as the Chair of Jurisprudence at
Oxford and a Fellow of University College, Oxford. It is said that Hart himself recommended
his candidature.
• Dworkin, a natural law philosopher, is considered to be among greatest critics of Hart and has
devoted significant time to engaging with Hart’s lifetime academic work. During this time, the
famous American legal philosopher, Jeremy Waldron was his PhD student (ironically, a
normative legal positivist, who is a critic of Dworkin and judicial review).

Information Source: Various Sources

 Not Important!

Ronald Dworkin
• Thereafter, he went on to teach at University College, London followed
by New York University School of Law and New York University where
he continued to teach until remainder of his life.
• Dworkin has authored several renowned works including over fifteen
books numerous journal articles. Some of his famous books include as
Taking Rights Seriously (1977), A Matter of Principle (1985), Law’s
Empire (1986), Justice for Hedgehogs (2011), and Religion Without God
(2013), all published by the Harvard University Press.
• Dworkin passed away aged 81 during 2013 in London, England.

Information Source: Various Sources

 Important!

THE MODEL OF RULES - I

Source: Ronald Dworkin, ‘The Model of Rules I’, in Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978), 14-45.
 Important!

THE EMBARRASSING
QUESTIONS

Source: Ronald Dworkin, ‘The Model of Rules I’, in Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978), 14-45.
 The Embarrassing Questions
• The important thing in this section is the way in which Dworkin relates talk about legal obligation
to the use of coercive force by the state: “we do use the concepts of law and legal obligation,
and we do suppose that society’s warrant to punish and to coerce is written in that
currency.” (p. 16) On the previous page, Dworkin remarks that people are sent to jail or fined day
in and day out, and that such action is justified by saying that they violated the law, which they had
an obligation not to do. In other words, Dworkin seems to hold on to the following thesis (which
we will call the ‘principle of legality’):
• (PL) Under normal circumstances, it is at least a necessary condition of the justifiability of a
coercive act directed by the state against any individual that the individual in question can be
shown to have made herself liable to punishment or coercion through a violation of her legal
obligations.

Information Source: Professor (Dr.) Lars Vinx

 The Embarrassing Questions (Contd.)
• In other words, we justify uses of coercive force on the part of the state against
individuals by pointing to the fact that they broke the law. This claim may not always
suffice to show that the state is justified in punishing or coercing someone (for example if
the laws are unjust).
• But Dworkin seems to think that it would not be acceptable to take the view that the state
can simply decide to coerce people for mere forward-looking reasons of policy. People
must be given the opportunity to avoid official coercion by guiding themselves in
accordance with previously known laws. A mode of governance that does not accept this
conception of the rule of law would be an arbitrary despotism (however benevolent) and
any use of the legal system for coercive purposes that violates PL would be an abuse of
legal institutions.

Information Source: Professor (Dr.) Lars Vinx

 The Embarrassing Questions (Contd.)

• The general charge against positivism that

Dworkin wants to make is that it is incompatible
with PL, and thus fails to make sense of our talk
of legal obligation and of the ideal of the rule of
law expressed in it.

Information Source: Professor (Dr.) Lars Vinx

 Important!

DWORKIN’S CHARACTERIZATION
OF POSITIVISM
 Dworkin’s characterization of positivism
• Let us begin by looking at Dworkin’s characterization of positivism. We will have to say more about
whether it is a good characterization at a later point. According to Dworkin, positivism is
committed to three key theses:
1. The Model of Rules: The law of a community is a set of special rules governing the use of force
of the community against its members. These rules are identified by their pedigree, i.e. by looking
at the manner of their production and not by appeal to the moral quality of their content.
2. The Discretion Thesis: The set of legal rules is exhaustive of the law. If someone’s case isn’t
covered by a rule, as inevitably happens in some cases, the official or judge deciding the case
cannot decide on the basis of the law. He must then use discretion, i.e. he must rely on his own
moral and political views in figuring out how best to deal with the situation.
3. The Obligation Thesis: To say that someone has a legal obligation is to say that his case falls
under a rule that requires him to do or not to do something.

Information Source: Professor (Dr.) Lars Vinx

 Dworkin’s characterization of positivism (Contd.)

• As Dworkin points out, this view has the following implication. If someone’s case
does not fall under a rule and an official consequently takes a discretionary
decision to apply coercive force, we cannot say that the official is enforcing a legal
obligation. Hence, the use of coercive force, in that case, violates PL.
• In other words, positivism, as described by Dworkin, entails that legal institutions
sometimes use coercive force in ways that cannot be justified by saying that they
are applying the law or enforcing legal obligations. And this is a result we have an
interest in avoiding since it conflicts with our liberal intuition that the legality of a
use of coercive force on the part of the state is to be considered a necessary
condition of its legitimacy.

Information Source: Professor (Dr.) Lars Vinx

 Dworkin’s characterization of positivism (Contd.)

• Clearly, this does not amount to an argument against positivism. The

positivist will reply that it is just an unavoidable fact that officials will
sometimes have to rely on discretion. If that is just an unavoidable fact, then
we have to reject PL as being unrealistic. So Dworkin has to do more than
point out that there is a conflict between PL and positivism.
• He has to show that positivism misrepresents what goes on when judges
decide cases and to show that there’s a better analysis of judicial activity that
does not conflict with PL.

Information Source: Professor (Dr.) Lars Vinx

 Important!

THE DISTINCTION BETWEEN

RULES AND PRINCIPLES
 The distinction between Rules and Principles

• Dworkin claims that there are two different kinds of practical

standards that judges rely on or invoke when they decide cases:
Rules and Principles. In this section, Dworkin is trying to establish
two different claims.
➢First, he argues that judges do indeed use principles frequently
when they decide cases.
➢Second, Dworkin wants to establish the claim that there is a ‘logical
difference’ between rules and principles.

Information Source: Professor (Dr.) Lars Vinx

 The distinction between Rules and Principles (Contd.)

• We will not discuss how Dworkin defends the first claim. Just
look at the article and read his examples. We already discussed
on of these examples: Riggs v. Palmer, 115 N.Y. 506 (1889)
(where the grandson, Elmer Palmer murders his grandfather, Francis B.
Palmer, to ensure that he inherits from an earlier will, but the New York
Court of Appeals decides to disallow such inheritance to a murderer by
creating a new “social purpose” rule of statutory construction).
Information Source: Professor (Dr.) Lars Vinx
 The distinction between Rules and Principles (Contd.)

• The claim that there’s a logical difference between principles and rules involves two more specific
theses:
1. Rules determine cases in an all-or-nothing way. If a valid rule in fact applies to a case, then it compels a
certain decision. In order to avoid deciding a case in line with what appears to be an applicable rule, we
have to show that the rule isn’t valid, that it doesn’t really apply to the case at hand, or that it has
exceptions that we failed to notice. Principles, on the other hand, provide reasons for deciding a case in
a certain way, but these reasons need not be conclusive. It is therefore possible for a principle to apply
to a certain case and yet for the case to be decided against the principle.
2. Principles have a dimension of weight. If several different, countervailing principles apply to a case, a
judge can weigh their relative importance and give precedence to the more important principle. Rules,
by contrast, lack a dimension of weight. If two contrary rules appear to apply to the same case, they
cannot both be valid or we must be making a mistake in thinking they both apply.

Information Source: Professor (Dr.) Lars Vinx

 Important!

WHAT TO DO WITH
PRINCIPLES?
 The distinction between Rules and Principles

• Dworkin takes himself to have established that, in taking or justifying their

decisions, judges appeal both to rules and to principles, and they do so in a
way that attests to the alleged logical difference between rules and principles.
• There are two interpretations of this observation, as Dworkin points out:
a) To treat principles as belonging to the law, and to hold that judges are
therefore bound to apply them.
b) To deny that principles belong to the law, and to understand them as
standards that do not bind judges, but that judges ‘characteristically use’ (in
cases where the law runs out) in taking discretionary decisions.

Information Source: Professor (Dr.) Lars Vinx

 The distinction between Rules and Principles

• The first option would lead to the following picture: People’s legal obligations are
determined by both the legal rules and the legal principles that belong to some
legal order. Judges and officials have a duty to apply both principles and rules. In
the case of principles, this means that a judge will at least have to take account of
principles that might be applicable to the case at hand.
• Note that the first option implies a rejection of the second and the third thesis of
positivism: If judges are bound by principles, they never have (true) discretion and
the decisions that they take in hard or penumbral cases can be said to enforce legal
obligations.

Information Source: Professor (Dr.) Lars Vinx

 The distinction between Rules and Principles

• The second option is thus what the legal positivist

needs to defend (according to Dworkin). This option
will portray a judge’s invocation of principle as a mere
reliance on his personal moral or political views. A
decision justified by resort to principle, in other words,
would be held to be discretionary.

Information Source: Professor (Dr.) Lars Vinx

 The distinction between Rules and Principles

• There are at least two prima facie considerations that, for Dworkin, make option (a)
interpretation (i.e., to treat principles as belonging to the law, and to hold that judges are therefore
bound to apply them) the more attractive alternative.
• On the one hand, adopting the thesis that principles are part of the law would allow us to
claim that cases in which the rules don’t speak clearly are nevertheless cases that are
governed by law (since they are governed by principles). Hence, we would be in a position
to say that a judge’s decision in such a case enforces a legal obligation, and we would thus
avoid any conflict with PL.
• On the other hand, judges actually talk and write as if they believed that principles are part
of the law. At least for a start, we should try to make sense of this attitude.

Information Source: Professor (Dr.) Lars Vinx

 Important!

THE PROBLEM OF
DISCRETION
 The problem of discretion

• Recall the Option (b) that Dworkin discussed earlier:

To deny that principles belong to the law, and to
understand them as standards that do not bind judges,
but that judges ‘characteristically use’ (in cases where
the law runs out) in taking discretionary decisions.

Information Source: Professor (Dr.) Lars Vinx

 The problem of discretion

• Dworkin now goes on to discuss whether option b) is a plausible account of the role of
the use of principles in judicial decision taking. According to option b), principles do not
belong to the law. They are just the moral or political grounds that judges tend to invoke
when they take a penumbral decision based on their personal view of what the law ought
to be. Dworkin’s assessment of b) has two steps.
• In a first step, Dworkin explains what he understands by ‘discretion’ and distinguishes
between three senses of discretion. A discretionary decision, in general terms, is typically
understood to be a decision that applies pre-existing standards, but that does so in a way
that gives a certain degree of decisional freedom to the agent who applies those standards.

Information Source: Professor (Dr.) Lars Vinx

 The problem of discretion (Contd.)

• More specifically, to say that some decision taker has discretion can mean …
a) …that the decision taker has to take a decision, on the basis of pre-existing
standards, that requires intelligent judgment. (Weak Discretion 1)
b) …that the decision taker has the final authority to take the decision, i.e. that there
is no appeal against his decision to some other authority. (Weak Discretion 2)
c) …that the decision taker is not bound, if acting within the limits of his
competence, to rely on any particular pre-existing standard in taking his decision.
(Strong Discretion)

Information Source: Professor (Dr.) Lars Vinx

 The problem of discretion (Contd.)

• The referee at a boxing match is to give the points to the more aggressive
fighter. To apply this standard requires intelligent judgment. Some people
may disagree with the referee’s judgment, but his judgment will normally
stand. Hence, the judge at a boxing match has discretion in the first two
senses.
• But he doesn’t have discretion in the last, strongest sense. He is not allowed,
for example, to award the title to the fighter he thinks is more handsome.
Rather, he has an obligation to decide on the basis of his view as to which
fighter is more aggressive.

Information Source: Professor (Dr.) Lars Vinx

 The problem of discretion (Contd.)

• Let’s assume that judges have weak discretion, in the first two senses. That would not give
us a reason to say that principles do not belong to the law or that judges aren’t bound to
apply them. Legal principles would be like the principle that a judge at a boxing match
must award the points to the more aggressive fighter. Judges would need intelligent
judgment in applying principles, and some judge might have final authority to do so. But
nothing would force us to say that it is open to that judges to decide the case on whatever
grounds he personally prefers.
• Hence, a proponent of the second option, someone who wants to argue that the
principles that judges use to decide cases do not belong to the law, must make the claim
that a judge’s use of a legal principle is always an exercise of strong discretion.

Information Source: Professor (Dr.) Lars Vinx

 The problem of discretion (Contd.)

• In a second step, Dworkin asks whether it is plausible to maintain that a judge who invokes a principle to
decide a case is exercising strong discretion. Dworkin starts by rebutting three reasons for denying legal quality
to principles:
1. Principles cannot be binding: Principles bind in the sense that judges and officials must take them into
account in arriving at their decisions.
2. Principles cannot determine a particular result: It is true that the use of a particular principle does not
typically mandate a particular decision. But it is wrong to infer from this that a set of applicable principles is
incapable of doing so. The overall weight of all principles involved will point to one solution, and this is the
solution a judge is bound to enforce.
3. Principles are controversial, but with respect to the ground of their authority and their weight:
Dworkin admits that this is true. But it only shows that judges must have discretion in the two weak senses.

Information Source: Professor (Dr.) Lars Vinx

 The problem of discretion (Contd.)
• After having concluded that none of the reasons for denying legal force to principles is convincing, Dworkin offers a
positive argument for accepting the legal status of principles:
1. At least in America and England, courts sometimes invalidate or change established legal rules.
2. If courts had the power to invalidate or change established legal rules as they see fit, they would not be bound by such rules.
3. However, courts are bound by established legal rules.
------------------------------------------------------------------------------------------
4. Hence, courts cannot have the power to invalidate or change established legal rules as they see fit.
5. Judges can have the power to invalidate or change established legal rules without having the power to do so as they see fit,
only if there are legal principles that determine whether a change to some established rule is legally required.
------------------------------------------------------------------------------------------
6. Hence, some principles must belong to the law.

Information Source: Professor (Dr.) Lars Vinx

 The problem of discretion (Contd.)

• Dworkin believes that this positive argument,

together with the arguments against the
positivist’s rejection of legal principles,
should lead us to accept the view that
principles indeed are part of the law.
Information Source: Professor (Dr.) Lars Vinx
 Important!

PRINCIPLES AND
POSITIVISM
 Principles and Positivism
• The argument so far implies a rejection of two of the three claims that
Dworkin uses to characterize positivism. If legal principles are part of the
law, judges will never have (strong) discretion, as there will always be
principles applicable to any case.
• Moreover, if principles are part of the law, we cannot equate having a legal
obligation with being subject to a legal rule. Being subject to legal principle
(or set of principles) can equally explain how one comes to have a legal
obligation.
• Hence, it becomes perfectly possible to say that judges enforce legal
obligations in cases where the decision isn’t dictated by a legal rule.

Information Source: Professor (Dr.) Lars Vinx

 Principles and Positivism (Contd.)

• However, Dworkin thinks that the first thesis of positivism,

that all laws are identified by pedigree and not by their
content (or its moral quality), is the most central element of
positivism.
• So where does the claim that principles are part of the law
leave the pedigree-thesis or, in other words, the theory of
the rule of recognition?

Information Source: Professor (Dr.) Lars Vinx

 Principles and Positivism (Contd.)

• Dworkin argues that the admission that there are

legal principles compels the abandonment of the
theory of the rule of recognition.
• It is impossible, in Dworkin’s view, to construct a
non-vacuous rule of recognition that identifies all
valid legal principles.
Information Source: Professor (Dr.) Lars Vinx
 Principles and Positivism (Contd.)

• First, Dworkin argues that the reason why some legal principle has binding force typically
depends on perceptions of the principle’s moral quality and not on its procedural
pedigree. Dworkin does not claim that any moral principle is automatically part of the law.
In order to show that some principle belongs to the law, judges will typically refer to past
legal practice and try to establish that the principle is widely recognized as having legal
standing.
• But it would be wrong to think that the principle’s legality depends exclusively on past
decisions of the courts, since it is impossible to specify precisely how much support of
this kind would make a principle belong to the law. A principle’s legal standing stems from
a “sense of appropriateness developed in the profession and the public over time” (p. 41)
that cannot be captured by a rule of recognition.

Information Source: Professor (Dr.) Lars Vinx

 Principles and Positivism (Contd.)

• Second, Dworkin argues that Hart will not be able to defend his theory of the rule
of recognition by claiming that legal principles are part of customary law and that
the rule of recognition may provide that customary norms are legally valid. Such a
move, Dworkin argues, would undercut the point of the rule of recognition, which
is to provide a clear and unambiguous standard for the identification of valid law:
“The master rule, says Hart, marks the transformation from a primitive society to
one with law, because it provides a test for determining social rules of law other than
by measuring their acceptance. But if the master rule says merely that whatever other
rules the community accepts as legally binding are legally binding, then it provides no
such test at all, beyond the test we should use were there no master rule.” (p. 43)

Information Source: Professor (Dr.) Lars Vinx

 Principles and Positivism (Contd.)

• Dworkin concludes that it is impossible to construct a

‘master rule’ of ‘pedigree’ that will capture all considerations
that govern our judgments concerning the legal standing of
principles.
• Hence, the rule of recognition, and the core positivist idea
that the legality of norms depends on their source and not
on their moral merit, in his view, must go.

Information Source: Professor (Dr.) Lars Vinx

 Important!

THE MODEL OF RULES - II

Source: Ronald Dworkin, ‘The Model of Rules II’, in Dworkin, Taking Rights Seriously, 46-80, at 48-58.
[Image Description: Providence, Rhode Island, USA.]
 Important!

THE PROBLEM OF
JUDICIAL DUTY

Source: Ronald Dworkin, ‘The Model of Rules II’, in Dworkin, Taking Rights Seriously, 46-80, at 48-58.
 The problem of judicial duty
• In the ‘Model of Rules II’ Dworkin renewed his attack
on the theory of the rule of recognition.
• The key claim that Dworkin puts forward in the first
major part of the article is that the theory of the rule
of recognition fails to explain why/how judges can be
said to have a duty to apply the law.
Information Source: Professor (Dr.) Lars Vinx
 The problem of judicial duty (Contd.)
• Hart’s answer: Recall that Hart, in his theory of social rules, argues that to
have a duty/obligation is to be subject to a social rule. Social rules exist when
the three practice conditions are met. There is a pattern of behavioural
conformity, departures from the pattern are met with criticism, and a certain
degree of social pressure is exercised on those who do not conform. Given the
theory of social rules, a judge’s duty to apply the law can be accounted for by
appeal to the rule of recognition (which is itself a social rule that meets the
three practice conditions). Judges have a duty to apply the law because their
behaviour is governed by the rule of recognition.
• Dworkin thinks that this account of judicial duty cannot be defended.

Information Source: Professor (Dr.) Lars Vinx

 The problem of judicial duty (Contd.)
• The vegetarian: If the theory of social rules is introduced as a general
account of moral duty or moral obligation, it must fail. Consider the
example of a vegetarian who claims that we have a duty not to eat meat.
In making that claim, the vegetarian does not appeal to the existence of a
social rule.
• Neither does s/he argue that a social rule prohibiting the consumption of
meat ought to be introduced. Rather, the claim is that we have a practice-
independent moral duty not to eat meat, notwithstanding the fact that
this duty is honoured, by most, only in the breach.

Information Source: Professor (Dr.) Lars Vinx

 The problem of judicial duty (Contd.)
• The theory of social rules, Dworkin
concludes, must be restricted in scope: it
accounts only for certain moral
duties/obligations, namely those that obtain
where ‘a community is by-and-large agreed that
some such duty exists.’ (53)
Information Source: Professor (Dr.) Lars Vinx
 Important!

CONCURRENT AND
CONVENTIONAL MORALITY

Source: Ronald Dworkin, ‘The Model of Rules II’, in Dworkin, Taking Rights Seriously, 46-80, at 48-58.
 Concurrent and conventional morality
• Concurrent and conventional morality: Even in cases where the
claim that there is a moral duty goes along with a social practice a
further differentiation is necessary. Members of a community might
concur in the view that there is a certain moral duty, and act
accordingly, in two different ways: They might either simply happen to
agree in moral opinion or they might take the view that the fact that
there is a concurrent practice is itself a reason to think that the duty in
question obtains.

Information Source: Professor (Dr.) Lars Vinx

 Concurrent and conventional morality (Contd.)

• Consider the example of the hat rule: Perhaps people do take off their hat
when they enter a church because they all agree that to do so is required to show
proper respect for the deity. People who took that view would, presumably, feel
that they ought to take off their hat when they enter a church even if others were
to refuse to do so. It is ‘the right thing to do’, they might say.
• It also possible, however, that people feel that they ought to take off their hat in
part because other people do so, say, because it is wrong to give offense. A hat rule
that works in the first of these two ways is a rule of concurrent morality, whereas a
rule of the second sort is a rule of conventional morality.

Information Source: Professor (Dr.) Lars Vinx

 Concurrent and conventional morality (Contd.)

• Dworkin argues that it follows that ‘the social

rule theory must be confined to conventional
morality’ (p. 54). In other words, the theory must
be narrowed further. It accounts only for duties
or obligations imposed by conventional rules.

Information Source: Professor (Dr.) Lars Vinx

 Important!

THE PROBLEM OF
DISAGREEMENT

Source: Ronald Dworkin, ‘The Model of Rules II’, in Dworkin, Taking Rights Seriously, 46-80, at 48-58.
 The problem of disagreement
• Dworkin argues that it follows that ‘the social
rule theory must be confined to conventional
morality’ (p. 54). In other words, the theory must
be narrowed further. It accounts only for duties
or obligations imposed by conventional rules.

Information Source: Professor (Dr.) Lars Vinx

 The problem of disagreement (Contd.)
• To show that this concession does not make for a comfortable fallback
position for Hart, Dworkin points out that even in case of a duty imposed
by a conventional rule, people ‘may still disagree about the scope of that
duty’ (p. 54).
• Imagine members of a community disagreed as to whether it is a violation
of the hat rule to take a baby wearing a bonnet into a church, so that
practice is split (some people take off their baby’s bonnets, others don’t).
Given this disagreement, the practice theory does not provide an answer to
the question whether there is a duty not to take a bonnet-wearing baby into
a church.

Information Source: Professor (Dr.) Lars Vinx

 The problem of disagreement (Contd.)
• One might of course reply that there is no duty, according to the theory of social
rules, since there is no coherent practice. But this reply, Dworkin thinks,
misrepresents the dispute between those who affirm and those who deny that
babies must not wear a bonnet in church.
• On its face, the dispute seems to be a dispute about what it is proper to do, about
what duties there are, or about how to understand the hat rule, and the practice
theory, it would appear, does not allow us to think of the dispute in this way. It
implies that it must either be clear what our duties are (where practice is uniform)
or that disputes about what the rule requires are meaningless (because there is no
uniform practice, and therefore nothing to be right or wrong about).

Information Source: Professor (Dr.) Lars Vinx

 Important!

INTERPRETIVE
JURISPRUDENCE

Source: Ronald Dworkin, ‘The Model of Rules II’, in Dworkin, Taking Rights Seriously, 46-80, at 48-58.
 Interpretive jurisprudence
• The problem of disagreement, Dworkin suggests, might affect the
rule of recognition. Either the practice that underpins the rule of
recognition is uniform (in respect of a certain question or
problem regarding the identification of law) or it is not.
• In hard cases the rule of recognition must therefore fail to
account for judicial duties, and it will make it impossible to
portray disagreements among judges as to how to understand the
demands of the rule of recognition as bona fide disagreements
about what the law is or what its requirements are.
Information Source: Professor (Dr.) Lars Vinx
 Interpretive jurisprudence (Contd.)
• Dworkin’s discussion intimates that we need to modify our
understanding of the relation between practice and the
normative claims that are made about it, from a participant
perspective.
• Instead of assuming that such claims merely express
acceptance of a uniform practice, we ought to see them as
interpretations of the point or purpose of practice.

Information Source: Professor (Dr.) Lars Vinx

 [NOTE: It would be
relevant to go back and
read Hart’s Postscript in
Module 5.3 again.]
[Image Description: Providence, Rhode Island, USA.]
-END-