Was Justice Antonin Scalia Hercules?  A Re-Examination of Ronald Dworkin's Relationship to Originalism


This article advances two novel propositions with respect to Dworkin’s theory of interpretivism: (1) Dworkin attempts to remain firmly within the positivist goal of creating an objective understanding of law but in a way that also enables judges to decide disputed legal questions through the internal morality of law; and (2) Dworkin addresses this challenge by adopting a modified form of originalism tied to legal principles. This article starts with a review of legal positivism and Dworkin’s critique. An examination of the characteristics of Dworkin’s ideal judge – Hercules – then frames Dworkin’s response to legal positivism and development of interpretivism as a theory of judicial interpretation. Dworkin seeks a theory of jurisprudence which combines the “is” and the “ought” of jurisprudence while at the same time avoiding appeal to extra-judicial sources of decision-making. By viewing Dworkin’s interpretive project in relation to the similarly objective goals of originalism, one can assess whether Dworkin succeeds at this. After a review of different forms of originalism and Justice Antonin Scalia’s own version of originalism, the article compares interpretivism and Hercules to the jurisprudence of Justice Scalia, drawing from his philosophical writings and selected Supreme Court opinions. While not a complete overlap, this comparison will reveal more similarities than may at first be apparent. Of particular interest is the question of whether judges can reasonably be confined to the existing corpus of the law in deciding cases for which there is no clear legal precedent. Dworkin’s emphasis on principles of law as an interpretive tool demonstrates how they can through a theory of “principle originalism.” 


Scalia, Originalism, Ronald Dworkin, Hercules, Law, Legal, Supreme Court, Theory of Interpretivism



Ryan Fortson (University of Alaksa Anchorage)



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