1. The present essay comprises the second half of a long chapter on Dworkin from my forthcoming book Law Without Trimmings: A Defense of Legal Positivism. I have made numerous modifications to facilitate the abridgment of the chapter.

The principal texts by Dworkin which I consider in this essay are Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978) [hereinafter TRS]; “A Reply by Ronald Dworkin” in Marshall Cohen, ed., Ronald Dworkin and Contemporary Jurisprudence (London: Duckworth, 1984) 247 [hereinafter “Reply”]; Law’s Empire (London: Fontana, 1986) [hereinafter LE]; “Legal Theory and the Problem of Sense” in Ruth Gavison, ed., Issues in Contemporary Legal Philosophy (Oxford: Clarendon Press, 1987) 9 [hereinafter “Theory”].

2. See, e.g., Andrei Marmor, Interpretation and Legal Theory (Oxford: Clarendon Press, 1992) at 56–57: “Suppose we concede Dworkin’s thesis that interpretation should strive to present its object in its best light. Now it is true that for the participants in a practice like law this would naturally mean ‘best’ in its moral sense.”

3. See Matthew Kramer, “Justice as Constancy” (1997) 16 L. & Phil. 561; “Scrupulousness Without Scruples: A Critique of Lon Fuller and His Defenders” (1998) 18 Oxford J. of Legal Stud. 235; “Requirements, Reasons, and Raz: Legal Positivism and Legal Duties” (1999) 109 Ethics 375.

4. For some previous criticism, see Michael Bayles, “Hart vs. Dworkin” (1991) 10 L. & Phil. 349 at 380; H. L. A. Hart, “Comment” in Ruth Gavison, ed., Issues in Contemporary Legal Philosophy (Oxford: Clarendon Press, 1987) 35 at 36–37 [hereinafter Hart, “Comment”]; H. L. A. Hart, “Postscript” in The Concept of Law. 2nd ed. (Oxford: Clarendon Press, 1994) 238 at 242–44 [hereinafter Hart, “Postscript”]; Andrei Marmor, supra note 2 at ch. 3; W. J. Waluchow, Inclusive Legal Positivism (Oxford: Clarendon Press, 1994) at 27–29. (All of my references to the text of The Concept of Law—hereinafter cited as Hart, Concept—are to the first edition, which was published by the Clarendon Press in 1961.)

My delineation of perspectives in this section of my essay is obviously indebted to Hart, Concept at 55–56, 86–88; H. L. A. Hart, “Introduction” in Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983) 1 at 14–15; Neil MacCormick, Legal Reasoning and Legal Theory (Oxford: Clarendon Press, 1978) at 275–92; Joseph Raz, Practical Reason and Norms (Princeton: Princeton University Press, 1990) at 175–77; Joseph Raz, The Authority of Law (Oxford: Clarendon Press, 1979) at ch. 8. There are some points of resemblance between my analysis in this section and the analysis in Stephen Perry, “Interpretation and Methodology in Legal Theory” in Andrei Marmor, ed., Law and Interpretation (Oxford: Clarendon Press, 1995) 97. However, the differences between my approach and Perry’s approach (which is largely pro-Dworkinian and strongly anti-Hartian) are considerably more numerous and significant than the similarities.

5. As Gregory Kavka brilliantly argued—in his Hobbesian Moral and Political Theory (Princeton, NJ: Princeton University Press, 1986) 254–66—there can exist legal systems in which every official (as well as every citizen) is motivated only by fear. In these possible but exceedingly improbable circumstances, the distinction between the internal perspective and the uncommitted perspective has become blurred altogether. In the more likely event that some officials are motivated only by fear, the internal/uncommitted distinction has become blurred in relation to them.

6. Of course, Dworkin does not preposterously maintain that jurisprudential scholars render or seek to render adjudicative decisions by virtue of devising their theories. Though the Dworkinian theorist undoubtedly hopes to influence the practice of adjudication, she can hardly fail to realize that she is not directly engaged in that practice herself.

7. Cf. Matthew H. Kramer, John Locke and the Origins of Private Property: Philosophical Explorations of Individualism, Community, and Equality (Cambridge: Cambridge University Press, 1997) at 9.

8. Among the relevant passages are the following: TRS at 66–68, 103, 106–07, 340–42; “Reply” at 254; LE at 231, 233, 255–56, 259; “Theory” at 14. For some of the secondary works that have touched on this aspect of Dworkin’s thought, see Larry Alexander, “Striking Back at the Empire: A Brief Survey of Problems in Dworkin’s Theory of Law” (1987) 6 L. & Phil. 419 at 427–31; Larry Alexander & Ken Kress, “Against Legal Principles” in Andrei Marmor, ed., Law and Interpretation (Oxford: Clarendon Press, 1995) 279 at 284–85, 287–88; T. R. S. Allan, “Justice and Fairness in Law’s Empire” (1993) 52 Cambridge L. J. 64 at 68, 75–76, 84–85; John Finnis, “On Reason and Authority in Law’s Empire” (1987) 6 L. & Phil. 357 at 373–74; David Lyons, “Moral Aspects of Legal Theory” in Moral Aspects of Legal Theory (Cambridge: Cambridge University Press, 1993) 64 at 94–95; Gerald Postema, “‘Protestant’ Interpretation and Social Practices” (1987) 6 L. & Phil. 283 at 293–95.1 shall not here explore a difficulty that has been pointed out by Joseph Raz among many other commentators: “Fit is a threshold test [in Dworkinian adjudication,] and we are given no guidance at all on what counts as meeting the test.” Joseph Raz, “Dworkin: A New Link in the Chain” (1986) 74 Cal. L. Rev. 1103 at 1118 1138. For an especially astute investigation of some further difficulties relating to Dworkin’s criterion of fit, see Nigel Simmonds, “Imperial Visions and Mundane Practices” (1987) 46 Cambridge L. J. 465 at 477–80.

9. See especially my articles on Fuller and Raz, supra note 3.

10. The relevant texts by the former theorist are H. L. A. Hart, Essays on Bentham (Oxford: Clarendon Press, 1982) at 150–53; Hart, “Comment” at 40–42; Hart, “Postscript” at 271–72. The relevant texts by Dworkin are “Reply” at 256–60; LE at 104–08; “Theory” at 18–19. For some secondary works that bear on the present topic, see Larry Alexander, supra note 8 at 427–31; Michael Bayles, supra note 4 at 375–80; David Lyons, supra note 8 at 75–76; Philip Soper, “Dworkin’s Domain” (1987) 100 Harv. L. Rev. 1166 at 1181–83; W. J. Waluchow, supra note 4 at 45–46, 58–64.

11. In this respect, though not in certain other respects, I agree with Joseph Raz, Ethics in the Public Domain (Oxford: Clarendon Press, 1994) at 219–21.

12. Once again, the most relevant texts are my articles on Fuller and Raz, supra note 3.

13. Lon Fuller, The Morality of Law. rev. ed. (New Haven: Yale University Press, 1969).

14. See especially my article on Fuller, supra note 3.

15. I of course acknowledge that some highly sophisticated legal positivists have resisted Dworkin’s stance. See, e.g., W. J. Waluchow, supra note 4 at 58–64. Cf. Steven Burton, “Ronald Dworkin and Legal Positivism” (1987) 73 Iowa L. Rev. 109 at 125–27. Indeed, what prompted Dworkin to issue his call for flexibility was Hart’s adducing of moral reasons in favor of the legal-positivist use of “law” (in Hart, Concept at 203–07). I regard Hart’s position—which has been followed and amplified by Neil MacCormick in his “A Moralistic Case for A-Moralistic Law” (1985) 20 Valparaiso L. Rev. 1—as inconclusive and ill-advised. For an excellent corrective, see Philip Soper, “Choosing a Legal Theory on Moral Grounds” in Jules Coleman & Ellen Frankel Paul, eds., Philosophy and Law (Oxford: Blackwell, 1987) 31. For a rather verbose and strident (but not inapposite) reply to Hart from a natural-law perspective, see Deryck Beyleveld & Roger Brownsword, “The Practical Difference Between Natural-Law Theory and Legal Positivism” (1985) 5 Oxford J. of Legal Stud. 1.

16. For a book-length elaboration of this one-sentence analysis of rights and duties, see Matthew H. Kramer, “Rights Without Trimmings” in Matthew H. Kramer, N. E. Simmonds, & Hillel Steiner, A Debate Over Rights: Philosophical Enquiries (Oxford: Clarendon Press, 1998) 7.

17. Once again, the most relevant piece of work is my article on Fuller, supra note 3.