Adjudicating in the Kingdom of Ends: A Constructivist Response to the Hart/Dworkin Debate
Matthew D. Friedlander | 2011 U. Ill. L. Rev. 1387
In the late 1960s, the opposing ideologies of legal philosophers H.L.A. Hart and Ronald Dworkin began to define the now-ubiquitous debate over the relationship between morality and law; specifically, whether or to what extent the latter is derived from the former. Hart’s position asserts that, although there can be overlap between the law and moral imperatives, laws are not derived from moral conceptions. Thus, it is inappropriate for a judge to consider morality in adjudication, even when current legal rules do not resolve a particular dispute. Dworkin’s philosophy counters by pointing out that legal principles (not only rules) play an essential role in judicial decision making, even in the application of settled law. Dworkin argues that it is the application of these principles, with due consideration for moral concepts, that leads to the correct resolution of cases in unsettled areas of the law. The debate between adherents of these philosophies, however, has largely served to demonstrate that neither concept is an adequate framework for improving the processes of real-life adjudication.
Perhaps reacting to the current disfavor of the concept of an “activist judge,” recent Supreme Court appointees have given short shrift to the idea of jurisprudential philosophy, likening an ideal judge to an umpire who mechanically applies hard-line rules. The author takes issue with these ideas, however, arguing that our modern legal system is too complex to be effectively dealt with by judges who turn a blind eye to jurisprudential philosophy. Acknowledging the limitations of the Hart and Dworkin poles of the law and morality debate, the author turns to Christine Korsgaard’s Kantian constructivist moral theory, which posits that moral truths are not concepts to be “discovered,” but rather that they are constructed by means of practical reasoning.