Dworkin and the Natural Law Tradition
Ronald Dworkin, following a holistic conception of thought, claims the law to be “a branch of political morality”. Taking this as a starting point, I explore two implications he derives thereof. The first one is that in the analysis of the concept of law,
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Dworkin and the Natural Law Tradition María Lourdes Santos Pérez
In order to analyze the relationship between Dworkin’s thought and the Natural Law Tradition, I will analyze one of his theses, which, although appearing explicitly formulated in his later works,1 is already traceable from his early writings, owing to his holistic ambitions.2 I am referring to his conception of law as “a branch of morality”. In particular, to understand its meaning, I will investigate two implications of this thesis. The first has to do with the concept of law. Synthetically, Dworkin’s position is that, in his analysis, moral considerations are necessarily involved. The second implication has to do with the concept of human rights. Synthetically, his position is that human rights are a part of the content of morality. At first glance, this thesis, thus stated, would seem to place Dworkin inside the tradition of Natural Law. As I will try to show in these pages, he is actually recovering certain premises associated with this school of thought, reorganizing the academic debate on the relationship between law and morality in a much more illuminating and rigorous sense, away from false trivializations. 1. Dworkin articulates his thesis according to which moral considerations are necessarily involved in the analysis of the concept of law on the basis of the following arguments. Firstly, he emphasizes that there are different concepts of law. Secondly, Dworkin argues that, although there are different concepts, the discussions that are generated about them have in common the fact that they involve moral manifestations or, in other words, raise questions about the relationship between law and justice. Now, according to his thesis, (this could be the third argument), because these manifestations are diverse, the discussions will take various courses.
1 2
See Dworkin (2008, 2011). See Santos Pérez (2003).
M.L. Santos Pérez (*) Historia del Derecho y Filosofía jurídica, University of Salamanca, Campus Miguel de Unamuno s/n, 37007 Salamanca, Spain e-mail: [email protected] 211 F.J. Contreras (ed.), The Threads of Natural Law: Unravelling a Philosophical Tradition, Ius Gentium: Comparative Perspectives on Law and Justice 22, DOI 10.1007/978-94-007-5656-4_13, © Springer Science+Business Media Dordrecht 2013
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M.L. Santos Pérez
Put another way, Dworkin’s position is that, although discussions about the concept of law involve moral considerations, the consequences of the lack of consensus on the issue of the relationship between law and justice are not uniform. More specifically, Dworkin begins by stressing the importance of distinguishing the various concepts that are used to talk about law. Namely: “the doctrinal concept”, “the sociological concept”, “the taxonomic concept” and “the aspirational concept”. The first one is used in stating what the law of a jurisdiction requires or forbids (so, for example, when someone says that “ignorance is no defense under the law”, he would be mobilizing a concept of this kind). The second one is used when
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