"For three decades now, much of the Anglo-American legal philosophy curriculum has been organized around something called 'the Hart/Dworkin debate,' a debate whose starting point is Ronald Dworkin’s 1967 critique of the seminal work of Anglophone jurisprudence in the twentieth-century, H.L.A. Hart’s 1961 book The Concept of Law. Hart’s final word on that debate is now available to us in the posthumously published 1994 “Postscript” to The Concept of Law, while Dworkin has not published anything substantially new about the debate since his book Law’s Empire in 1986.

"The moment now seems opportune to step back and ask whether the Hart/Dworkin debate deserves to play the same organizing role in the jurisprudential curriculum of the twenty-first century that it played at the close of the twentieth. I am inclined to answer that question in the negative, though not, to be sure, because I can envision a jurisprudential future without Hart’s masterful work at its center. Rather, it seems to me--and, I venture, many others by now--that on the particulars of the Hart/Dworkin debate, there has been a clear victor, so much so that even the heuristic value of the Dworkinian criticisms of Hart may now be in doubt."

So I begin my paper on "Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence" (Download file here), which is appearing this fall in the American Journal of Jurisprudence, as part of a symposium on "Law's Moral Foundations: Has It Any?" (with other papers by Joseph Raz, Timothy Endicott, Matthew Kramer, and John Finnis--and Finnis responds in part to my paper, in particular, my criticism of his views). [Note: an earlier, and rather different version, of this paper appeared as a working paper on the SSRN network quite some time ago. The final version is quite different.]

What I say in the opening paragraphs constitutes the "received wisdom" among legal philosophers these days, though oddly it is little known outside those who work in jurisprudence, where Dworkin still looms very large (the explanation for that I leave to another occasion). Among significant legal philosophers, there are really only two--Stephen Perry at NYU and Nicos Stavropoulos at Oxford--who have offered important defenses of Dworkinian views; the rest of the landscape is populated by legal positivists of one kind of another, mostly Razians, many of those Raz students.

In this and subsequent postings, I want to examine some of the peculiarities of Dworkin's jurisprudential work (I will ignore his influential work on equality for these purposes) that have led to this state of affairs, i.e., that his views should be so relatively moribund among legal philosophers.

One longstanding difficulty has been Dworkin's inability to represent his opponent's views fairly. In the paper, above, I discuss this in connection with his original critiques of Hart, but the problem has actually gotten worse over time, as indicated by the bizarre and slightly unhinged polemic against legal positivism he recently published under the title, “Thirty Years On,” Harvard Law Review 115 (2002): 1655-1687.