Immodesty in Dworkin's 'Third' Theory: Modest Conceptual Analysis, Immodest Conceptual Analysis, and the Lines Dividing Conceptual and Other Kinds of Theory of Law

Abstract

Although Dworkin sees his theory as a rival to positivism, it can seem to be about something other than the concept of law that positivism seeks to explicate. For example, one might think the positivist attempts to explicate a descriptive “preinterpretive” notion of law while Dworkin attempts to explicate a normative “interpretive” concept of law. Although it is not obvious these two enterprises engage directly, Dworkin consistently insists that (1) he is doing the same kind of theory as legal positivism, and (2) his theory is, as a matter of logic, a rival to positivism, and, (3) is a better justified theory than positivism.I dispute all three claims. First, utilizing Frank Jackson’s distinction between a “modest” (MCA) and “immodest” approach (ICA) to conceptual analysis, I argue Dworkin deploys ICA while positivism deploys MCA. Second, I argue the two approaches to legal theory make presuppositions about the nature of the concept of law – as opposed to the nature of law itself – that are sufficiently different as to justify the claim that Dworkin and positivism are best regarded as engaging in different theoretical enterprises. Third, I argue that ICA, unlike MCA, can result in an “error theory” of law. Fourth, I argue that Dworkin’s theory implies an error theory of law, and that he has failed to meet the justificatory burden an error theory must meet. I conclude that Dworkin is best seen as engaged in a different theoretical enterprise than the positivist and that, if not, his theory should be rejected insofar as it implies an unjustified error theory of law.