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of England or the USA on sex or race discrimination cannot be explained
without reference to moral and political principles, but they can be fully
described without moral judgement one way or the other. This,
MacCormick argues, is the defensible form of the separation thesis, rather
than the claim that the law is intrinsically value-free.
As a modified version of Hart s model of rules, extending it to include
Dworkinian principles, this is a plausible alternative to Dworkin s theory of
constructive interpretation. MacCormick s further insistence, however, that
no positivist has seriously entertained the intrinsic interpretation of the
separation thesis, and that this suspension of judgement was what they had
in mind all along, is unconvincing. The least that can be said is that the
leading defenders of the separation thesis (Bentham, Austin, Holmes,
Kelsen) equivocated between the two versions as described by MacCormick.
What he implies is that they did not see the issue clearly, and that his explan-
ation is a clarification of what they really meant. There is little doubt,
however, that they were proposing more than a method of objective detach-
ment, of refraining from evaluation. The underlying reality of law described
from this position law as an object of legal science was indeed under-
stood to be value-free , a bare pyramid structure of commands, rules or
Kelsenian norms, stripped of the moral language of rights and duties. It was
this image of law that Dworkin, following Fuller, was challenging.
To use MacCormick s own example (MacCormick 1978: 200 4), the Rent
Restriction Act of 1920 would not have been understood by the classical
positivists to have no moral implications for the interests of landlords and
tenants, but their separation of law and morals would have required not only
that they look dispassionately at the content and operation of the Act, but
also that they disregard the moral or political principles of fairness, justice
and rights governing the introduction of the rules. What they were looking
for was the underlying structure of validation of these legal rules, in terms of
the authority of the sovereign, the basic norm or whatever. This science of
law requires the expulsion of these principles from the domain of law; they
are regarded as extraneous factors. Dworkin s response was to argue for their
inherent legality, not by virtue of their sources or points of origin, but by
virtue of their mere presence in the common law. MacCormick s acceptance
of these principles as authentically legal, by virtue of their function in rela-
Contemporary theories of law 63
tion to rules, thus indirectly validated by the rule of recognition, aligns him
with a developed Hartian positivism against Dworkin while at the same time
distinguishing his own position from that of classical positivism.
While Dworkin s assault on the model of rules and his emphasis on the role
of principles have received a generally favourable response, and have stimu-
lated refinements and adjustments to the positivist position, it is his own
alternative to these models that has attracted the most fundamental criticism.
Dworkin s moral objectivism
Much of the criticism of his theory as a whole is an extension of the wider
philosophical disputes about the moral objectivism upon which Dworkin s
legal theory rests. If it were true that all moral judgement had an
inescapably subjective element (Mackie 1977a), then it would be clear that
the one right answer thesis would have to be rejected. Given that Dworkin s
concept of law includes moral standards, we would have to conclude that
with questions of law there is either more than one possible right answer, or
that the very idea of correctness as applied to law is inappropriate. Those
critics of Dworkin who do emphatically reject any form of moral object-
ivism tend to focus their criticism accordingly on the figure of the ideal
judge Hercules, who symbolises the possibility of objective judgement. If
Hercules can be exposed as a fraud, it is believed, the idea that every hard
case has a unique correct answer, and that this answer will be based on the
recognition of objective rights, will go down with him.
Arguments from disagreement
The most common criticism of Hercules is that, as a mythical figure
embodying the possibility of objectivity about legal problems with a moral
dimension, he is inappropriate because the supposition that such a judge is
possible in principle presupposes what Dworkin is trying to prove. Sceptical
feelings about the role of Hercules are reinforced by the suspicion that the
objectivity claimed on his behalf is just another substitute for God as the abso-
lute and omniscient authority and ultimate arbiter of human disagreement. On
this reading, the theory of constructive interpretation is no more than a recy-
cling of a discredited legal formalism, declaring that fallible human judges can
shed their subjectivity and use the law as a whole to cut through intractable
moral problems and conflicts between rights to find the elusive right answer,
which in fact does not exist. Those more sympathetic to Dworkin s approach,
however, regard this as an exaggeration of the problem of objectivity and a
misrepresentation of what it requires. Dworkin himself, it should be remem-
bered, sees objectivity in the assessment of conflicting rights in accordance
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