Putting Law in its Place

Larry Sager (UT Austin)


In Justice for Hedgehogs, Ronald Dworkin focuses at some length on what he callsthe “one system” approach to the question of the relationship between law and morality. In the one system understanding, law is morality…more exactly, law is a branch of political morality. Dworkin argues that a noteworthy consequence of the one system view is that it undermines claims that there are valid legal precepts that are not properly enforceable by courts; and further, that the view clarifies the problem of the ethical judge who is confronted with an evil law or an evil legal regime.

This paper looks critically at both Dworkin’s defense of the one system view and his claim that one can embrace the idea of judicially underenforced legal norms only by embracing positivism. It also sets forth reasons to be skeptical of Dworkin’s claims on behalf of the one system view as clarifying the problem of evil law.

The paper concludes with an homage to Ronald Dworkin, who taught many of us so very much, even — perhaps especially — when we found ourselves disagreeing with him.