Ronald Dworkin’s Criticism of Positivist Constitutional Interpretation

Criticizing Herbert Hart’s positivist theory of hard cases, Ronald Dworkin also turned to an analysis of hard constitutional issues. Starting his criticism with the chapter «Constitutional cases» in his fundamental work Taking Rights Seriously, Dworkin elaborates it in more detail in the book Freedom's law, The moral reading of the American constitution and in other works. The main criticism tool is the theory of «the moral reading» of the constitution developed by Dworkin. Based on it, Dworkin criticizes judicial originalism and textualism, taking the position of judicial activist. Defending the theory, he builds a defense against the argument about the antidemocratic nature of his approach. The theoretical basis of Dworkin’s criticism is his understanding of law as an interpretative entity. This basis is enriched by empirical argumentation: references and Dworkin’s analysis of real constitutional cases. The current essay will examine both criticism itself and its evolution.