DWORKIN’S THEORY OF CONSTITUTIONAL INTERPRETATION AND THE SEPARABILITY OF LAW AND MORALITY

Abstract

Ronald Myles Dworkin (1931- 2013), was, by loud acclaim, one of the major legal theorists of the twentieth century. His seminal contributions to several subjects and themes in jurisprudence or philosophy of law have remained points of reference (and are almost certain to remain so into the foreseeable future) for scholarship in this specialized area of philosophical studies. Dworkin’s theory of constitutional interpretation – the moral reading, as Dworkin calls it - has generated a fair amount of scholarly debate. In this paper, I examine one major objection to ‘the moral reading’, namely, that it undermines the distinction between law and morality. I draw two main conclusions. (1) Although Dworkin seems sometimes ambivalent when it comes to fidelity to the separability thesis, the position most consistent with Dworkin’s general theory of law is a rejection of the separability thesis. (2) For theoretical as well as for practical reasons, such as Professor H.L.A. Hart has ably canvassed, the separability thesis is worth preserving.