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Seriously and Playing Fast and Loose with the Law." But it will become plain, as I go on, why I was tempted.
I call it the third theory of law because it contrasts both with legal
positivism and with the doctrine of natural law, and is in some ways
intermediate between the two. The natural law doctrine is well summarized by Blackstone: "This law of nature being coeval with mankind and dictated by God himself is of course superior in obligation to
any other. It is binding over the whole globe, in all countries and at
all times. No human laws are of any validity if contrary to this, and
such of them as are valid derive their force and all their auithority,
mediately or immediately, from this original."2 This entails that a
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law is made somehow by human beings, and that the (detailed) question, What is the law? makes sense only if construed as asking, What
is at a certain time the law of England, or of France, or of the United
States, or of South Dakota? The validity of a law is wholly relative to
fundamental test for law, such as Professor Hart's "rule of recognition." In its place he puts the sort of reasoning that he ascribes, in
"Hard Cases," to his imaginary judge, Hercules. Some parts of the
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The
Third
Theory
of
Law
which would exclude a duty to decide the case one way rather than the
other (TRS, pp. 3I-35, 68-7I).
inal cases. The accused may have a right to be acquitted, but the
prosecution never has a right to a conviction. So a court m!ay some-
ration of law from morality. However, this is a tricky issue. The legal
positivism he has explicitly taken as his main target is that of Professor
Hart, and Professor Hart recognizes many ways in which law and
morality are closely linked. For example, he says, "In some systems,
as in the United States, the ultimate criteria of legal validity explicitly
incorporate principles of justice or substantive moral values . . ."
" statutes may be a mere legal shell and demand by their express
terms to be filled out with the aid of moral principles; the range of
enforceable contracts may be limited by reference to conceptions of
3. TRS, pp. 82-84. Professor Dworkin gave this clarification in reply to a
question from Professor Sir Rupert Cross at a seminar on Hard Cases in Oxford,
I2 May I976.
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morality and fairness .. .." and "Judicial decision, especially on matters of high constitutional import, often involves a choice between
moral values... ." But one point on which Professor Hart stands firm
is that we can sometimes say, "This is law but too iniquitous to obey
dures can be given by a theory which recognizes only rules as constituting the law. This must, I think, be conceded. But he further main4. H.L.A. Hart, The Concept of Law (Oxford, I96I), pp. I8I-207, esp. I99200 and 205-207.
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tains that the way in which judges reason in hard cases is some
approximation to that which he ascribes to his superhuman judge,
Hercules; and such a view is much more controversial. Along with
other aspects of his descriptive theory it needs to be checked empirically and in detail. But some general preliminary comments can be
made.
what judges say they are doing, what they think they are doing, and
the most accurate objective description of what they actually are doing. They may say and even believe that they are discovering and
applying an already existing law, they may be following procedures
which assume this as their aim, and yet they may in fact be making
new law. Such a divergence is not even improbable, because even
where new law is being made, it will seem fairer if this fact is concealed and the decision is believed to enforce only presently existing
rights; and because the making of new law will usually mean only
that existing rules or principles are extended somewhat beyond their
previous field of application.
Secondly, even though legal reasoning in hard cases involves, appeals to principles and rights and is affected by "the gravitational
force of precedents," it does not follow that it does or must or even
should work in terms of a complete theory of the underlying law for
about rights which are supported by elements in the settled law that
are remote from the case in hand. We may or may not want this; but
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will often justify a decision in his favor which is against the interests
of the community as a whole. However, Professor Dworkin himself
does not regard all rights as absolute, but admits that they may
sometimes be overruled by community interest. And when rights con-
flict with one another, interests may help to determine which right
is the stronger in the particular circumstances.
bers from playing cricket unless they took adequate steps to prevent
stray balls from hitting his house and garden. There is a conflict of
rights here: prima facie the club has a right to go on playing cricket
and the plaintiff has a right to enjoy his home and garden in safety.
The court refused, by two to one, to grant the injunction. The judges
on the majority side spoke of the public interest and also stressed that
the injunction sought was a discretionary remedy. Lord Denning said
that the public interest lay in protecting the environment by preserving playing fields in the face of mounting development and enabling
our youth to enjoy the benefits of outdoor games, in contrast to the
private interest, which lay in securing the privacy of a home and
garden without intrusion or interference. Lord Justice Cumming-Bruce
said that in considering whether to exercise a judicial discretion to
grant an injunction the court was under a duty to consider the in-
terests of the public. That is, they seemed to think that while each
party had a prima facie righ,t, when these rights came into conflict the
importance of the public interest made the cricket club's right the
stronger. Professor Dworkin may deplore such reasoning, but he can
hardly deny that it occurs, nor can he argue that it should not occur
merely because in a hard case there are appeals to principles and
rights.
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the other, and yet they are not finely balanced. Consider the analogous
question about three brothers: Is Peter more like James than he is
to this question, but again there may not. It may be that the only
correct reply is that Peter is more like James in some ways and more
like John in others, and that there is no objective reason for putting
Hercules' judgment about what the law is on some specific issue de-
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make them commonly think that they are objectively valid and mean
cause each has reasoned coherently in the light of his own moral
views. Though each of them will sincerely and consistently believe
that the law already is as he determines it, I maintain that they will
both be wrong. The grounds on which they rely fail to determine an
objective preexisting law. Whichever judge's opinion wins the day in
the final court of appeal will become the law and will then be the
law. The judges who finally decide the case will have been legislating,
though they will sincerely, consistently, and rationally believe that
they have not. By making a choice determined by their subjective
moral judgments for which they honestly but mistakenly claim objective validity, they will have been making law on an issue on which
there was previously no determinate law, on which they had no
antecedent duty to decide one way rather than the other, and on
applies his theory to cases which arose before the American. Civil War
under the Fugitive Slave Acts.6
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acts, sending alleged runaway slaves back from states in which slavery was not permitted to states where it still existed and from which
they were alleged to have escaped. But why is there a puzzle? Were
these judges not, as they themselves said, simply doing their legal
duty of enforcing what was then the law of the land, despite the fact
that it conflicted with their own moral views? Professor Dworkin
argues that it is not so simple. The relevant law was not settled: these
Congress and, earlier, in the Constitutional Convention. These legislators had, in their several enactments, created and maintained a
compromise between the slave states and the nonslave states; therefore, sending an alleged slave back to the state from which he had
come was the natural fulfilment of that compromise.
According to Professor Dworkin, the reasoningof these judges was
a "failure of jurisprudence." If they had been adherents, not of positivism, but of the third theory, they could have found in the general
structure of the American Constitution "a conception of individual
freedom antagonistic to slavery, a conception of procedural justice
that condemned the procedures established by the Fugitive Slave
Acts, and a conception of federalism inconsistent with the idea that
the State of Massachusetts had no power to supervise the capture of
men and women within its territory." These principles were "more
central to the law than were the particular and transitory policies of
the slavery compromise."
refused to enforce the Fugitive Slave Acts. Then the judges would
have held 'that even if the Acts were settled law in the sense of being
unambiguous and regularly enacted sitatutes, they were not genuine
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law because they violated principles of justice and natural right which
were prior to any man-made system of law. The problem is whether
the (federal) Fugitive Slave Acts "left open many questions of procedure, particularly about the power of the free states themselves to
impose restrictions on the process in the interests of the alleged slave."
held that these restrictions were overruled by the federal laws, and
this seems to follow from a straightforward interpretation of Article
VI lof the United States Constitution: "This Constitution, and the/ laws
of the United States which shall be made in pursuance thereof, . . .
shall be the supreme law of the land; and the judges in every State
the law was not, for all that, settled. The only ground on which he can
claim, in a way that is even initially plausible, that the law was not
settled, is that the procedures laid down in these acts "offended ordinary notions of due process." The federal official who returned the
alleged slave to his purported master was "a mere commissioner who
received a higher fee if the alleged slave was sent back than if he was
not, there was no question of a jury trial, and the defendant was not
allowed to contest whether he was in fact a slave, that issue being left
to be decided in the slave state after his retum."
But it is far from clear that these provisions offend against due
process. They would be defended on the ground that these proceedings
were only preliminary: the legal issue about the fugitive's status was
still to be decided in the state from which he had come, and that,
surely, was where witnesses to his identity and status would be avail-
judges may have had about this, it was an essential part of the federal
compromise that they should not be guided by such doubts in their
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legal decisions. Article IV, Section i, of the Constitution says that "full
faith and credit shall be given in each State to the public acts, records,
and judicial proceedings of any other State." The Virginian slaveowner could have argued that if he were not allowed to get his slave
What principles that are relevant to this case are implicit in the
settled law? The fundamental fact is the Union itself, which arose
out of an alliance, against Britain, of thirteen separate and very
different colonies. It was recognized from the start that these col-
onies, and the states which they have become, have diverse institutions and ways of life. The Unilon exists and can survive only
through compromises on issues where these differing institutions
7. Cf. Plato, The Apology of Socrates 40e-4ra: "Would it be such a bad journey if one arrived in Hades, having got rid of the self-styled judges here, and
found the true judges who are said to have jurisdiction there, Minos and Rhadamanthus and Aeacus and Triptolemus and such other demigods as were just
during their lives?"
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and ways of life come into conflict. One salient principle, then,
enshrined as clearly as anything could be in the federal Constitution and in various statutes, is that the rights which individuals
The contrary view, that the Constitution presupposes a conceptilon of freedom antagonistic to slavery, cannot be upheld. Jefferson,
who actually wrote the Declaration of Independence, and who later
of men and women in its territory, but this power must be exercised
Even if Joseph Story and Lemuel Shaw had shared Professor Dworkin's theory of jurisprudence, they might still have followed Rhada-
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the rights thesis, like the natural law doctrine that it in some ways
resembles, is a two-edged weapon. It is particularly risky for an opponent of slavery and of racial discrimination to appeal to states' rights
positivism that would make the law in hard cases indeterminate, since
it envisages situations in which the law as a whole, not merely the
settled law, has run out. Judges are then called upon to legislate,
bringing in considerations of policy as well as morality, and it tells
judges that they thus have discretion in the strong sense. His theory,
on the other hand, holds that there is on every issue a determinate
and, in principle, discoverable, though perhaps not settled or certain,
law.
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would be easy cases into hard ones. Secondly, this approach would
encourage a holistic treatment of the law, letting very general principles and remote parts of the law bear upon each specific issue.
The third theory of law is thus a plea for a more speculative and
enterprising handling by judges of their traditional materials land data.
Like the natural law doctrine, this theory allows the consciences and
the speculations of judges to inltervene more significantly between
what the legislative and executive branches try to do-or, for whatever
reason, leave undone-and the law as it actually operates. We know
well that people's prejudices, training, and social position-the movements in which they are caught up and the ideologies linked with
these-strongly influence their consciences and their speculations.
Whether we consider this a merit or a demerit depends upon our
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