Institutional Morality and the Constitution

Abstract

It is obvious that any general theory of law must include an adequate explanation of the most fundamental parts of legal systems. That is, they must explain the nature of constitutions and of constitutional law, and in so doing must give a satisfactory account of the grounds of legal decision making which are properly appealed to in the justification of decisions in cases which raise questions of constitutional law. It is therefore an important question whether positivist theories of law can and do provide a satisfactory explanation of these matters.¹ This question has been posed recently by Ronald Dworkin, who suggests that legal positivism entirely fails this test. In the present chapter, I shall approach a discussion of jurisprudence and the constitution by first indicating some considerations which make Dworkin’s view seem an attractive one; secondly reviewing the outlines of the Dworkinian theory; thirdly examining British literary and judicial approaches which tend to corroborate the theory; fourthly, showing that there are, however, central elements in positivistic analyses of law which are not so much subverted as presupposed by Dworkin’s argument; and finally throwing out some rather sketchy outlines of what seems to me the right way forward from here.