Dimitrios Kyritsis (Essex): "Law in the Service of Legitimacy"

Abstract: Ronald Dworkin famously puts the problem of political legitimacy front and centre in his anti-positivist theory of law. He maintains that we ought to understand law through the lens of its moral point, which, he claims, is to justify state coercion; when it goes well, law serves this point by giving citizens a special political obligation to comply with it and, hence, states a moral warrant to use force against them. Dworkin is also typically taken to champion a court-centric conception of law. In Justice for Hedgehogs, the last book he published before his death, he explicitly endorses a particularly strong form of such a conception. He claims that judicial enforceability of a right or duty is the touchstone of its legal character; whether we have a legal right or duty turns on whether it would be morally appropriate for a court to enforce it on demand. That argument seems to find support in the fact that Dworkin elaborates his theory from the perspective of an ideal judge, Hercules. Many commentators have taken this presentational device to be a telltale sign of the metaphysical priority adjudication enjoys in interpretivism.

In this paper I want to examine these two positions together. Specifically, I want to assess whether the theory of legitimacy vindicates Dworkin’s court-centrism, as defined above. I shall do so by retrieving an intriguing theoretical possibility that Dworkin had left open in his earlier work, which his later position in Justice for Hedgehogs foreclosed. According to it, there may be duties that are legal despite the fact that they are judicially unenforceable. But my primary aim is not exegetical. Rather, I shall claim that this possibility brings into sharp relief a dimension of political legitimacy that is largely absent from Dworkin’s account. I call it the assurance dimension (or assurance legitimacy for short). Assurance legitimacy prescribes institutional guarantees that a political regime will reliably and systematically act in a morally justified way. I shall argue that assurance legitimacy is an attractive and important moral principle, and that law makes an essential contribution to it. Conversely, our philosophical understanding of law must also be informed by its connection with assurance legitimacy. Equipped with this connection we can return to the question regarding the centrality (or otherwise) of courts in Dworkin’s interpretive account and the theory of law more generally. We will then see how law’s normative significance stretches beyond the courtroom. Some of the most consequential constraints it imposes on government are policed not by judges but by other officials.