Is Law Just the Rules, or Something More?

Here is a question that sounds simple until you sit with it: when a judge decides a hard case, one where the existing statutes don't clearly apply, or where following the letter of the law would produce a result that seems deeply unjust, what are they doing? Are they discovering the law? Making it up? Applying their own moral views? Finding the best interpretation of something that existed before they ruled?

Your answer to this question determines almost everything about how you think about legal systems, democracy, judicial review, and the relationship between law and morality.

The dominant 20th-century answer came from legal positivism, most rigorously developed by H.L.A. Hart in The Concept of Law (1961). Hart's view: law is a social fact. It consists of the rules that have been made through the recognized procedures of a legal system, passed by legislatures, decided by authorized courts, enacted by the sovereign. Whether something is law is a factual question about its pedigree, how it came to be, not a moral question about whether it is good law. Unjust laws are still laws. Judges in hard cases, where the law runs out, exercise discretion, they are, in effect, making new law rather than finding existing law.

Ronald Dworkin (1931–2013) spent his career arguing that this picture was fundamentally wrong, not in small details but in its core architecture. His challenge, developed in Taking Rights Seriously (1977), A Matter of Principle (1985), and Law's Empire (1986), is one of the great sustained philosophical arguments of the 20th century.

Dworkin's opening move is an observation: in actual legal argument, in courts, in briefs, in judicial opinions, lawyers and judges appeal not just to rules but to principles. The difference matters. A rule either applies to a case or it doesn't, "you must stop at a red light" either covers this situation or it doesn't. A principle, "no person should profit from their own wrongdoing," "individuals have a right to equal treatment", applies in a different way: it has weight, it can be outweighed by other principles, its application requires judgment about how strongly it applies here. Principles are not made law by being enacted; they are already present in the moral fabric of the legal order, waiting to be articulated.

His example: in the 1889 New York case Riggs v. Palmer, a grandson murdered his grandfather to inherit under the grandfather's will. The will was valid; the statute said valid wills must be honored. Strictly speaking, the letter of the law required the court to let him inherit. But the court refused, citing the principle that no man should profit from his own wrong. That principle was not in any statute. But Dworkin argues it was still law, and the court was right to apply it. If this is right, then Hart's picture of law as simply "the rules made by authorized procedures" is incomplete. The law already contains principles that didn't get there by being enacted.