CONVERSATION BETWEEN ME AND INTERLOCUTOR ON THE HART DWORKIN DEBATE

 Me:

I recently heard it explained that in the back and forth between Hart and Dworkin, Dworkin argues against a pure conception of positive law that there are moral or normative principles external to positive law but nevertheless inform decisions.

An example he gives is the case where the law of succession itself would have awarded an estate to an otherwise entitled beneficiary even if the beneficiary murdered the testator. But the obvious outrageousness of such a result forecloses any such result. 

But my thought is that it’s the equitable doctrine of unconscionability yielding the result. And as it does, and as it’s part of positive law, not external to it, then at a minimum doesn’t this defeat Dworkin’s example? 

Which then might raise the question, what principle can Dworkin cite that informs decisions but is truly extra-legal?

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Interlocutor:

You're diving into a fascinating debate between H.L.A. Hart and Ronald Dworkin, specifically Dworkin's critique of Hart's positivism and his argument that moral or normative principles external to positive law shape judicial decisions. Let’s unpack your question about Dworkin’s example of the murdering heir and whether the equitable doctrine of unconscionability, as part of positive law, undermines his point. Then we’ll explore what truly "extra-legal" principle Dworkin might rely on.

Dworkin’s Argument and the Murdering Heir Example

Dworkin’s critique of Hart’s legal positivism centers on the idea that law is not merely a system of rules (as Hart’s positivism suggests) but also includes principles that have moral content and guide judicial decisions, especially in hard cases. In the case of *Riggs v. Palmer* (1889), which Dworkin references, a New York court faced a situation where a beneficiary, Elmer Palmer, murdered his grandfather to inherit under the will. The law of succession, if applied mechanically, would have allowed Elmer to inherit. However, the court ruled against him, citing the principle that "no one shall profit from their own wrong." Dworkin uses this to argue that judges rely on principles beyond explicit legal rules—principles that carry moral weight and are not necessarily codified in positive law.

Does Unconscionability Defeat Dworkin’s Example?

Your point is that the equitable doctrine of unconscionability, which is part of positive law (developed through judicial precedent and equitable traditions), might explain the *Riggs* outcome. If the court’s decision rested on unconscionability—a recognized legal doctrine—doesn’t this undermine Dworkin’s claim that the decision relies on an *external* moral principle?

Let’s break this down:

1. **Unconscionability as Part of Positive Law**:

   - Unconscionability, rooted in equity, allows courts to refuse to enforce contracts or legal outcomes that are shockingly unfair or oppressive. It’s a flexible doctrine, often applied case-by-case, and is indeed part of positive law, as it’s embedded in judicial precedent and equitable principles.

   - In *Riggs v. Palmer*, you could argue that the court’s refusal to let Elmer inherit was an application of unconscionability: it would be unconscionable for a murderer to profit from their crime. If so, the decision could be seen as grounded in positive law, not an external moral principle, challenging Dworkin’s example.

2. Dworkin’s View on Principles vs. Rules**:

   - Dworkin distinguishes between *rules* (specific, codified norms applied in an all-or-nothing fashion) and *principles* (broader, normative standards that guide decisions but lack the same specificity). He argues that principles like “no one shall profit from their own wrong” are not just legal rules but carry moral weight and exist in the broader normative fabric of the legal system.

   - Even if unconscionability explains *Riggs*, Dworkin might argue that the principle underlying unconscionability—fairness or justice—transcends its codification in positive law. The doctrine of unconscionability itself draws on moral intuitions about fairness, which Dworkin sees as external to the mere “pedigree” of positive law (i.e., Hart’s idea that law is valid based on its source, not its moral content).

   - In *Riggs*, the specific principle (“no one shall profit from their own wrong”) isn’t explicitly codified in the law of succession but is invoked as a moral and legal maxim. Dworkin would likely say this principle’s moral force, not its status as part of equity, is what drives the decision.

3. Does This Defeat Dworkin’s Example?**:

   - Your argument is strong: if unconscionability, as a positive law doctrine, fully accounts for the *Riggs* outcome, then Dworkin’s claim that the decision relies on an *external* moral principle is weakened. The principle would simply be part of the legal system’s equitable framework.

   - However, Dworkin could counter that unconscionability itself is a legal doctrine infused with moral content. Its application requires judges to make normative judgments about what is “unconscionable,” which draws on moral reasoning beyond the black-letter law. Thus, even if unconscionability is part of positive law, its reliance on moral principles supports Dworkin’s broader point: judicial decisions in hard cases involve moral reasoning that goes beyond Hart’s rule-based positivism.

   - In short, while unconscionability might explain *Riggs* within positive law, Dworkin would likely argue that the moral reasoning embedded in applying unconscionability still reflects his view that law incorporates extra-legal normative principles.

What Truly Extra-Legal Principle Can Dworkin Cite?

This brings us to your second question: what principle can Dworkin point to that is *truly extra-legal*—outside the scope of positive law—and still informs judicial decisions? This is trickier, as Dworkin’s theory blurs the line between law and morality, arguing that principles are part of the law’s “interpretive” fabric, even if not explicitly codified. However, let’s explore possibilities:

1. Moral Principles as Interpretive Guides**:

   - Dworkin’s concept of law as “integrity” suggests that judges interpret the law to cohere with the community’s moral principles, even if those principles aren’t explicitly legislated. For example, in *Riggs*, the principle “no one shall profit from their own wrong” could be seen as a moral maxim that exists in the community’s shared normative understanding, not just in legal precedent.

   - A truly extra-legal principle might be a fundamental moral value like *justice* or *fairness* that informs judicial reasoning but isn’t reducible to a specific legal rule or doctrine. These values are “extra-legal” in the sense that they originate in moral philosophy or societal norms, not in a statute or case law, yet judges draw on them to interpret and apply the law.

2. Example of an Extra-Legal Principle**:

   - Consider a hypothetical case where a statute is silent or ambiguous, and no clear equitable doctrine like unconscionability applies. Suppose a court must decide whether to enforce a contract that, while technically valid, exploits a vulnerable party in a way that shocks the conscience but doesn’t meet the formal threshold of unconscionability.

   - Dworkin might argue that the court could invoke a principle like “the law should protect the vulnerable from exploitation.” This principle, while not codified, could be seen as part of the legal system’s moral underpinnings. It’s extra-legal in the sense that it’s not explicitly part of positive law (no statute or precedent directly mandates it) but informs the judge’s interpretive duty to render the law coherent with moral ideals.

   - In practice, such a principle might resemble the “public policy” considerations courts sometimes invoke. For instance, in cases involving contracts against public morals (e.g., contracts to commit a crime), courts refuse enforcement based on broad societal values, not just specific legal rules.

3. Challenges to Finding a Truly Extra-Legal Principle**:

   - Critics of Dworkin (like Hart) might argue that any principle influencing a judicial decision is, by definition, part of the legal system once applied. If a judge invokes “justice” or “fairness,” those principles become part of the precedent or equitable framework, making them positive law. This makes it hard to identify a *truly* extra-legal principle that remains outside the law.

   - Dworkin’s response would likely be that the moral content of these principles exists independently of their legal adoption. For example, the idea that “no one should profit from their own wrong” has moral force before it’s ever cited in a case like *Riggs*. Its extra-legal status lies in its origin in moral reasoning, even if it’s later absorbed into legal doctrine.

4. A Concrete Example**:

   - To illustrate, consider a case like *Brown v. Board of Education* (1954). The U.S. Supreme Court struck down racial segregation in schools, citing the Equal Protection Clause. While the clause is part of positive law, the decision leaned heavily on the moral principle of equality as a fundamental value. Dworkin might argue that the principle of equality, while reflected in the Constitution, draws its normative force from a broader moral commitment to human dignity, which is extra-legal in the sense that it exists beyond the text of the law.

   - This principle informs the decision but isn’t reducible to a specific rule or doctrine within positive law at the time, especially given the prevailing “separate but equal” doctrine in Plessy v. Ferguson* (1896).

Conclusion:

Your argument that unconscionability, as part of positive law, might explain the *Riggs* outcome is a strong challenge to Dworkin’s example. It suggests the decision could be grounded in existing legal doctrine, not an external moral principle. However, Dworkin would likely counter that unconscionability itself relies on moral reasoning, supporting his view that law incorporates normative principles beyond Hart’s rule-based positivism.

For a truly extra-legal principle, Dworkin might point to fundamental moral values like justice, fairness, or equality that guide judicial interpretation in hard cases. These principles are extra-legal in the sense that their normative force originates outside the formal sources of positive law (statutes, precedents), even if they become part of the legal system when applied. An example might be the principle of equality in a case like *Brown v. Board*, where moral reasoning about human dignity shaped the court’s interpretation beyond existing legal rules.

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Me

You’ve provided a lot to think about but to go to possibly a more straightforward point that then might have broader implications, isn’t the crux of Brown at least two fold: it was a factual matter that black only schools were materially worse than white only schools; and, separate but equal rested on the assumption that blacks are inferior to whites and therefore whites shouldn’t have to share the same social spaces with them including importantly schools. But equality as a matter of law entailed no racial superiority among races. Therefore the legal demand of equality of necessity had to strike down separate but equal as inherently contradictory. A problem with the notion of extra legal norms like justice or fairness or dignity etc, is that in their generality they can resolved in plausibly divergent ways. And as you note, it takes positive law to make them specific to individual cases, which then have precedential force. So maybe noting that extra legal moral norms are a starting point for legal reasoning is more truism than insight?

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Interlocutor:

Your question cuts to the heart of the *Brown v. Board of Education* (1954) decision and raises a sharp challenge to Dworkin’s reliance on extra-legal moral principles like justice, fairness, or dignity. 

You suggest that *Brown* can be explained through a combination of factual findings (the material inferiority of segregated Black schools) and a legal principle of equality inherent in the Equal Protection Clause, which logically undermines the "separate but equal" doctrine of *Plessy v. Ferguson* (1896). 

This framing casts *Brown* as a decision grounded in positive law and empirical evidence, potentially diminishing the need for extra-legal moral norms. You further argue that moral principles like justice or fairness are so general that they can lead to divergent outcomes, and their application in specific cases becomes part of positive law through precedent, making Dworkin’s emphasis on extra-legal norms more of a truism than a profound insight. 

Let’s unpack this and explore its implications.

Analyzing *Brown v. Board* and Your Twofold Argument

1. **Factual Basis: Material Inferiority of Black Schools**:

   - In *Brown*, the Supreme Court relied on social science evidence, notably Kenneth Clark’s doll studies, to demonstrate that segregation caused psychological harm to Black children and that Black schools were often materially inferior (e.g., in funding, facilities, and resources). This factual finding supported the conclusion that “separate but equal” was not being achieved in practice.

   - You’re correct that this empirical dimension grounded the decision in observable disparities, suggesting that the ruling could be justified within the framework of positive law—specifically, the Equal Protection Clause’s mandate that states provide equal treatment. If segregation demonstrably produced unequal outcomes, it violated the Constitution’s text and intent without necessarily invoking extra-legal moral principles.

2. Legal Principle: Equality Undermines Racial Superiority**:

   - Your second point is that *Plessy*’s “separate but equal” doctrine rested on an assumption of racial inferiority, which is inherently incompatible with the legal principle of equality embedded in the Equal Protection Clause. By 1954, the Court in *Brown* rejected the idea that segregation could be “equal” because it inherently stigmatized Black children, signaling their inferiority.

   - This argument is compelling: the principle of equality, as a legal norm within the Constitution, logically demands the rejection of any doctrine (like *Plessy*) that presupposes racial hierarchy. The Court’s reasoning in *Brown*—that segregation generates a “feeling of inferiority” with lasting effects—can be seen as applying the Equal Protection Clause’s internal logic to strike down *Plessy*. This suggests the decision was rooted in positive law, not necessarily external moral norms.

Does This Undermine Dworkin’s Extra-Legal Norms?

Your argument challenges Dworkin’s reliance on extra-legal moral principles in two ways: first, by showing that *Brown* can be explained through positive law and facts, and second, by questioning whether moral norms like justice or fairness are too vague to provide meaningful guidance without being crystallized into positive law.

1. **Can *Brown* Be Fully Explained by Positive Law?**:

   - You’re right that *Brown* can be framed as a straightforward application of the Equal Protection Clause, supported by factual evidence of unequal treatment. The text of the Fourteenth Amendment (“nor shall any State… deny to any person within its jurisdiction the equal protection of the laws”) provides a legal principle—equality—that logically conflicts with segregation’s implicit endorsement of racial hierarchy.

   - However, Dworkin would likely argue that the interpretation of “equal protection” in *Brown* required moral reasoning beyond the text. The Equal Protection Clause is broad and open-ended, and its application in *Brown* involved a normative judgment that segregation’s psychological and social harms violated equality in a deeper sense. This judgment drew on moral concepts like human dignity, which Dworkin sees as informing the law’s interpretive process.

   - For example, Chief Justice Warren’s opinion in *Brown* emphasized that segregation “generates a feeling of inferiority as to [Black children’s] status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” 

This language goes beyond empirical disparities (e.g., funding or facilities) and invokes a moral understanding of equality as tied to dignity and social standing. Dworkin might argue that this moral dimension—while expressed through the legal text—is extra-legal in its normative force, as it draws on societal values about human worth.

2. The Generality of Moral Norms

   - Your point about the generality of moral principles like justice, fairness, or dignity is a strong critique. These concepts are abstract and can indeed be resolved in divergent ways. For instance, in *Plessy* (1896), the Court upheld segregation by arguing that “separate but equal” facilities satisfied equality, reflecting a different moral interpretation of fairness—one that accepted racial separation as compatible with justice in its historical context.

   - Dworkin acknowledges this challenge but argues that judges, through the process of “law as integrity,” must interpret vague legal principles (like equality) in a way that best coheres with the community’s moral framework and the law’s overall purpose. In *Brown*, the Court’s interpretation of equality rejected *Plessy*’s moral assumptions in favor of a more inclusive vision, influenced by evolving societal norms about race and dignity.

   - However, you’re correct that once such a principle is applied in a case like *Brown*, it becomes part of positive law through precedent. The moral norm of equality, as interpreted in *Brown*, shaped subsequent legal doctrine, making it harder to see it as truly “extra-legal.” This leads to your suggestion that Dworkin’s emphasis on extra-legal norms might be a truism: moral reasoning is a starting point, but it’s only through positive law that it gains concrete legal force.

Is Dworkin’s Insight a Truism?

Your argument that noting extra-legal moral norms as a starting point for legal reasoning is more truism than insight is a powerful critique, especially in the context of Hart’s positivism. Let’s explore this:

1. Why It Might Be a Truism

   - Hart’s positivism doesn’t deny that judges sometimes draw on moral reasoning, but he insists that law’s validity depends on its source (e.g., statutes, constitutions, precedents), not its moral content. In *Brown*, the Equal Protection Clause provided the legal source, and the Court’s moral reasoning about equality was incidental to applying that legal norm. If moral norms are only relevant once incorporated into positive law, Dworkin’s claim that they’re “external” seems less revelatory.

   - As you note, the generality of moral principles (justice, fairness, dignity) means they lack specificity until applied in a legal context. Once a court applies them, they become part of positive law (e.g., *Brown*’s interpretation of equality as precluding segregation). This suggests that moral norms are less “extra-legal” than Dworkin claims and more a routine part of judicial interpretation within positive law.

   - In this sense, Dworkin’s insight might be seen as stating the obvious: judges, as human beings, inevitably draw on moral intuitions when interpreting vague legal texts, but those intuitions only become binding through positive law’s mechanisms (e.g., precedent).

2. Why Dworkin Might Still Claim Insight

   - Dworkin’s theory of “law as integrity” goes beyond acknowledging moral reasoning as a starting point. He argues that law is inherently normative, and judges must interpret it to reflect the best moral justification of the legal system as a whole. This contrasts with Hart’s view that law can be identified and applied without reference to morality.

   - In *Brown*, Dworkin would likely argue that the Court’s rejection of *Plessy* wasn’t just a mechanical application of the Equal Protection Clause but a moral reinterpretation of what equality means, driven by principles of dignity and fairness that transcend the text. These principles, while reflected in the law, draw their normative force from the community’s moral framework, not just the Constitution’s words.

   - Dworkin’s insight lies in emphasizing that law is not a closed system of rules (as Hart suggests) but a dynamic, interpretive practice that integrates moral principles to resolve hard cases. This is particularly evident in cases like *Brown*, where societal shifts in moral understanding (e.g., rejecting racial hierarchy) influenced the Court’s reading of a vague constitutional provision.

3. Broader Implications

   - Your critique highlights a tension in Dworkin’s theory: if moral principles only gain legal force through positive law, their “extra-legal” status is fleeting. Once a court invokes a principle like equality or dignity, it becomes part of the legal system, blurring the line between law and morality.

   - This raises a broader question about whether Dworkin’s framework overstates the role of extra-legal norms. If moral principles are too general to dictate specific outcomes without judicial interpretation, and if their application becomes positive law, then Hart’s positivism might better explain the law’s operation: moral reasoning informs judicial discretion, but law’s authority stems from its formal sources.

   - However, Dworkin’s approach has broader implications for understanding judicial creativity in hard cases. By framing law as an interpretive practice, he challenges the positivist separation of law and morality, suggesting that judges inevitably engage in moral reasoning to make law coherent and just. This view resonates in cases like *Brown*, where the Court’s decision reshaped legal and social norms.

Conclusion

Your twofold analysis of *Brown*—that it rested on factual evidence of unequal schools and the legal principle of equality contradicting *Plessy*’s racial hierarchy—offers a robust explanation grounded in positive law. This challenges Dworkin’s reliance on extra-legal moral norms, as the decision can be seen as applying the Equal Protection Clause’s internal logic, supported by empirical findings. Your point that moral norms like justice or fairness are too general to provide specific guidance, and only gain force through positive law, further suggests that Dworkin’s emphasis on extra-legal principles may be more truism than insight.

However, Dworkin would likely counter that the moral reasoning behind *Brown*’s interpretation of equality—drawing on concepts like dignity—reflects the integration of extra-legal norms into judicial decision-making. While these norms become part of positive law once applied, their normative force originates in the broader moral framework, supporting his view that law is inherently normative. 

Your critique highlights a key limitation: the generality of moral principles and their absorption into positive law may make Dworkin’s “extra-legal” distinction less profound than he claims. Yet his framework still offers insight into how judges navigate hard cases, especially when legal texts are vague or societal values evolve.

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