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Ronald Dworkin was an outspoken critic of pragmatism, and engaged in extensive and at times virulent disagreements with Richard Posner and Richard Rorty. Yet, I argue here, that Dworkin himself had a number of deeply pragmatist commitments. I examine how we can square these two aspects of Dworkin’s thought. I suggest that part of the answer lies in seeing that there are different strands of pragmatism, and that Dworkin falls on the more objective, Peircean side of the divide, while Rorty and Posner belong more in the skeptical, Jamesian camp. But even with this distinction in mind, we should note the substantial overlap between the views of Dworkin and his pragmatist interlocutors—in particular, their anti-archimedeanism and their rejection of metaphysics. Attentiveness to this shared perspective is helpful in illuminating Dworkin’s disagreements with legal positivists. The more foundational divide, I argue, is between analytic legal philosophers who aim to provide an account of the metaphysics of law, and those, like Dworkin and the pragmatists, who reject such a project. I conclude by discussing the implications of Dworkin’s pragmatism for legal philosophy. I argue that it may lead to what some have recently called ‘eliminativism’, and engage with some new and prominent work on this current topic in legal philosophy.

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The concepts of the rule of law, the separation of powers, and checks and balances are related in complicated ways. Jacob T Levy brings this to light in his thought-provoking McDonald Lecture, “The Separation of Powers and the Challenge to Constitutional Democracy.”1 In this response to Levy’s paper I want to further explore the relationship between these three ideas. I will argue that, when thinking about the rule of law, we must consider the idea of “role morality” and its place in constraining power. We should think of the constraints on power that stem from role morality as “internal” as opposed to “external” checks on power. I also suggest that we would do well to broaden our understanding of what the rule of law requires, and to think of it not just as a matter of ensuring impartiality and formal legal equality in the sense that the law applies to all actors within the system. We might benefit from thinking of the rule of law as a weightier moral concept that demands that decision-makers comply with moral ideals, and not just with the rules as laid out.

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