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Exploring Law's Empire$
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Scott Hershovitz

Print publication date: 2008

Print ISBN-13: 9780199546145

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199546145.001.0001

Did Dworkin Ever Answer the Crits?

Chapter:
(p.155) 7 Did Dworkin Ever Answer the Crits?
Source:
Exploring Law's Empire
Author(s):

Jeremy Waldron (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199546145.003.0008

This chapter highlights a dilemma for Dworkin arising from tension between his principle of integrity and his constructivism about legal background. A certain critique from the Critical Legal Studies (CLS) movement pushes Dworkin to be a constructivist regarding the background elements of a legal system. Dworkin must argue that the legal background of a legal system is constructively coherent: it is capable of being made coherent at the hands of a sufficiently resourceful interpreter. Dworkin also motivates a conception of law as integrity, which he invokes to justify the claim that making coherent sense of the existing legal materials, foreground and background, is something we are morally required to do. This chapter explores the following dilemma: If Dworkin hangs on to the integrity position, he makes it harder to respond to the scepticism of CLS via his constructivist argument. But if he weakens the integrity requirement, then he leaves himself defenceless against pragmatism about legal background.

Keywords:   Dworkin, integrity, legal background, descriptive optimism, Critical Legal Studies, pragmatism

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