ABSTRACT

Dworkin's views as to the connection between the grounds and force of law are said to lead hirn to see law as essentially a scheme of rights to decisions from judges and consequently to a cluster of 'peculiar and troublesome difficulties': if we think law is basically a scheme of rights against judges we will, for instance, fail to see that legal rights are typically held against fellow citizens rather than judges and will have difficulty explaining how the law might provide compelling reasons for lower court judges but not for those in higher courts. For these and related reasons, Waluchow claims, we must distinguish between law and what he calls its institutional and moral force, and be sensitive to variations in these forces. Those legal theorists who follow H.L.A. Hart in positing secondary rules of recognition and adjudication are particularly weil placed in this regard. They can, Waluchow concludes, accommodate Dworkin's intuition that the identification of law is in some measure dependent upon judges while respecting the distinction between law and its institutional and moral forces.