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Last Updated on June 19, 2019, by eNotes Editorial. Word Count: 360

In Ronald Dworkin's discussions of jurisprudence in the form of several essays that together compose Taking Rights Seriously (first published in 1977), he posits the existence of a theoretical judge, whom he names Hercules. Dworkin describes Hercules as follows:

We might do well to consider, therefore, how a philosophical judge...

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In Ronald Dworkin's discussions of jurisprudence in the form of several essays that together compose Taking Rights Seriously (first published in 1977), he posits the existence of a theoretical judge, whom he names Hercules. Dworkin describes Hercules as follows:

We might do well to consider, therefore, how a philosophical judge might develop, in appropriate cases, theories of what legislative purposes and legal principles might require . . . . I have invented, for this purpose, a lawyer of superhuman skill, learning, patience, and acumen, whom I shall call Hercules. I assume that Hercules is a judge in some representative American jurisdiction. I assume that he accepts the main uncontroversial constitutive and regulative rules of the law in his jurisdiction. He accepts, that is, that statues have the general power to create and extinguish legal rights, and that judges have the general duty to follow earlier decisions of their court or higher courts whose rationale, as lawyers say, extends to the case at bar.

Dworkin's hypothetical judge is used to illustrate Dworkin's ideal that law should be based on moral rights—rights for whose existence he argues throughout his work. Dworkin later describes this judge's process as follows:

So Hercules is driven . . . to a process of reasoning that is much like the process of a self-conscious chess referee. He must develop a theory of the constitution, in the shape of a complex set of principles and policies that justify that scheme of government, just as the chess referee is driven to develop a theory about the character of his game. He must develop by referring alternately to political philosophy and institutional detail. He must generate possible theories justifying different aspects of the scheme and test the theories against the broader institution. When the discriminating power of that test is exhausted, he must elaborate the contested concepts that the successful theory employs.

This metaphor of the hypothetical Herculean judge is Dworkin's legal philosophy in a nutshell (though he expounds on variations and applications of this philosophy elsewhere, relying on historical examples). Dworkin's thesis is that citizens have "moral rights against their governments" that are not explicitly stated in a constitution and not always applicable by legal precedent.

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