Abstract

The fundaments of Dworkin's third theory of law include two claims: (1) judges in legal systems like that of the US lack lawmaking discretion in hard cases; and (2) the content of the law in such legal systems is determined by moral norms that show existing legal practice in its morally best light. In this essay, I argue that these claims are in tension with each other and with the uncontroversial fact, acknowledged by Dworkin, that the highest court with jurisdiction over an issue of law has final authority to determine the content of the law with respect to that issue. In addition, I suggest that Dworkin's third theory is more fruitfully construed partly as an analysis of a normatively thick concept of law and partly as a descriptively functional explanation of the content of the law