Reading Dworkin Critically

Published in 1992 by

Berg Publishers, Inc.

Editorial offices: 165 Taber Avenue, Providence, RI02906, U. S. A. 150 Cowley Road, Oxford OX4 1)), UK © Alan Hunt 1992 All righ ts reserved. No part of this publication may be reproduced in any form or by any means without the permission of Berg Publishers. British Library Cataloguing in Publication Data R eading Dworkin Critically. - (Social and legal studie s)

I. Hunt, Alan II. Series 320.01 ISBN 0-85496-761-3

Library of Congress Cataloging-in-Publication Data

R eading Dworkin Critically / edited by Alan Hunt. p. em. - (Social and legal studies) Includes bibliographical references and index. ISBN0-85496-761-3 1 . Law-Philosophy. 2. Critical legal studies. 3. Dworkin, R. M. I. Hunt, Alan. II. Series. . K230.D92 R43 1991 91-19642 340' .1-dc20 CIP

Printed and bound in Great Britain by Billing and Sons Ltd, Worcester

,Contents

Reading Dworkin Critically

1

Alan Hunt

t. Law's Empire or Legal Imperialism? Alan Hunt

9

I, The Last Emperor? Allan C. Hutchinson

45

a. 'The Decline and Fall of Law's Empire Robert Moles

71

.t.

Is Hermes Hercules' Twin? Hermeneutics and

Legal Theory

123

Costas Douzinas, Shaun Mc Veigh and Ronnie Warrington

I. Ronald Dworkin and the Challenge of Postmodernism

1 41

Anne Barron 6.

Fissures in the Integrity of Law's Empire: Dworkin and the Rule of Law

1 57

Andrew Altman 'I.

Reading Dworkin Empirically: Principles, Policies and Property

1 87

Brendan Edgeworth 8.

Dworkin's Dutiful Daughter: Gender Discrimination in Law's Empire

209

Valerie Kerruish and Alan Hunt ,.

Impartiality, Bias, and the J udiciary

241

Sheldon Leader Vll

Contents References

269

Notes on Contributors

281

Index

285

Reading Dworkin Critically Alan Hunt

Ronald Dworkin is probably the most influential figure in contem­ porary legal theory. His writings represent a sustained effort to elaborate upon and to defend a coherent liberal .iurisprudence grounded in a liberal political theory. As a broad characterization his writings exemplify a position that strives to be a radical liberalism whose hallmark lies in the central preoccupation with equality as a primary political and ethical value, a conception in which equality stands alongside rather than subser­ vient to the traditional liberal priority accorded to liberty. The contributors to the present volume express varying degrees of reservation about how far Dworkin succeeds in securing this shift from orthodox liberal jurisprudence. There is no disagreement, however, that his position remains fIrmly within the liberal tradi­ tion in a way that is well captured by the characterization of Dworkin's position as 'radical individualism' (Tucker 1980). Dworkin's commitment contrasts with traditional liberalism, which attaches priority to liberty (Hayek 1982, Nozick 1974) . Dworkin is, of course, not alone in seeking to advance a radical liberalism (Rawls 1971, Walzer 1 983); but his work is significant because it provides the most sustained intervention of radical liberalism within j urisprudence. His work has justifiably attracted much debate and discussion and Dworkin himself has vigorously defended and amplified upon his position. It is significant that criticism of Dworkin's project has emanated from commentators who espouse positions generally to 'the right' of his own (Cohen 1 983) . The essays published in this collection are, as their title enjoins, 'critical'. While all pay tribute to Dworkin's achievement they each move, more or less rapidly, into critical gear. It is desirable at the outset to stress the common ground that his critics share with him. There is a broad consensus around of a number of themes that go to 1

Alan Hunt

the heart of modern legal theory. The most important of these are: 1 . There is a general endorsement of Dworkin's attempt to move beyond legal positivism (an endorsement from which Robert Moles dissents) . 2. The contributors applaud the major breach he has effected in the ideology ofj urisprudential isolationism - of the possibility of a legal theory suffIcient unto itself. They applaud his insistence on the dependence of legal theory on political and moral theory, although probably the most distinctive common theme of these essays is the shared view that Dworkin fails in whole or in part to ground his legal theory in an adequate or attractive political theory. 3. There is a general endorsement of his preoccupation with grounding legal theory within a theory of interpretation and there is general welcome for his powerful criticism of inter­ pretive fundamentalism (original intention doctrine) . 4. The contributors approve of Dworkin's concern to install a defence of the political value of equality at the heart of legal theory. But in all cases this common ground is paradoxical. While his promise of transcending the traditional standoff between legal positivism and natural law is attractive, his alternative seems merely to face both ways; rather than overcoming the opposition he finds ways of re-presenting the classic oppositions such that he can be read as either positivist or naturalist, while the Dworkin that purports to be neither turns out to be elusive, ambiguous and ultimately unsatisfactory. It is instructive to note that none of the essays is able to supress a certain irritation, and some see a positive virtue is trying to track down the source of this irritation; the dissatisfaction stems as much from the elusiveness of his style as it does from disagreement with the substance of his case. While his insistence on the necessity of grounding legal theory in political theory is applauded, his project of a law that works itself pure seems a retreat to a belief in the possibility of legal autonomy. His embrace of the 'interpretive turn' is sympathetically received even though his position within the interpretation debate takes a de­ cidedly conservative turn in retaining his preoccupation with the quest for 'right answers' and his privileging of a presumed 2

Reading Dworkin Critically interpretive community of lawyers and judges. His attempt to ground his legal theory in a conception of community offers much promise, but finally disappoints because he oscillates between the reinvention of the sovereign individual and the celebration of a potentially authoritarian community. The hallmark of the essays collected in this volume is that they embody responses that stem from positions that are explicitly critical. But that having been said, it should be stressed that they do not pretend to share a common ground about either the content or the method of what constitutes a 'critical' response. These differ­ ences both in emphasis and substance attest to the deep doubts that traverse contemporary radical thought. It is thus in the most qualified sense that one can identify Dworkin's present critics as taking up positions to 'the left' of his own. But there remains a sense in which this label is still helpful, if only in a provisional way. For example, most, if not all, of the present essays take issue with Dworkin for not attaching sufficient signifIcance to the profound structural inequalities of modern capitalist democracies. However, the contributors offer different, if not necessarily incompatible, prescriptions for what is involved in taking inequality seriously. Some are concerned to make his commitment to pluralism more rigorous, others emphasize the need to engage with a more radical commitment to participatory democracy and a third group enjoins the necessity of legal theory giving voice to subordinated interests and constituencies . What is, however, evident is that radical opinion on law has changed in important respects over the last two decades. There has been a marked shift away from an emphasis on the repressive role oflaw and towards the quest for a more complex understanding of the part played by law in social, economic and political relations. Perhaps the most emblematic manifestation of these changes was E.P. Thompson's now famous embracing of the rule of law as a universal human good (Thompson 1 975) . Many were not prepared to go as far as Thompson, but this shift has led radical scholars to engage more directly with the concerns of liberal legal thought. Just as Dworkin urged the need to ' take rights seriously' , many on the left were moving more or less rapidly to 'take liberalism seriously' . The essays written for this collection attest to that shift through their sustained engagement with the work of Ronald Dworkin. There is a second respect in which the essays in this volume have 3

Alan Hunt something in common. They each, albeit in different ways and to different engagement of their authors with the Critical Legal Studies move­ ment (CLS) . In this age of intellectual and political uncertainties uncertainties of dramatic proportions for radicals and progressives - it is not surprising that influential intellectual positions bear the ambiguous and consciously undecided label 'post', as in poststruc­ turalism, postmodernism, etc. In the field of legal theory it is perhaps now time to identify a contemporary phase of post-Critical Legal Studies (post-CLS) . Just as it is important to stress that postmodernism does not necessarily imply the espousal of anti­ modernist positions, so it should be stressed that to be post-CLS is not to be anti-CLS; the internal divergences within the critical legal tradition now need to be more openly confronted. The present essays take up a range of themes that stem from that tradition. Thus, while these essays are united by their concern to engage with liberal legal theory in the person of Ronald Dworkin, their approaches manifest considerable variation in style, focus and orientation. I will renounce the editor's prerogative of providing my own summary of the views of the contributors to this collection or of engaging in an internal debate with the variety of positions and themes taken up. Instead I will suggest one approach to a mapping of the general theoretical or strategic positions taken up by the contributors. It goes without saying that today radical opinion manifests itself in a great diversity. Even the traditional labels of self-identification - radical, critical, Left, socialist, etc. - lack any of the certainty of the past. This state of affairs attests to the unpre­ cedented crisis of contemporary politics. Even such a conventional designation as 'progressive' , which was always a nebulous label yet nevertheless had a useful heuristic role when there was a least some consensus about the arrangement of politics along a linear typology from left to right, is now redundant in the face of environmental and postmodernist challenges to the evolutionary lumber that surrounds the term. Yet it remains true that there is a simple (and seemingly unavoidable) process whereby we start with some in­ tuitive identification of 'friends' and 'enemies'. It is this that gives the contributions gathered here a degree of unity, as the work of people who see themselves - even if only in some tentative way - as being on the same side, even though the 'sides' are more complex 4

Reading Dworkin Critically and of more rapidly changing composition. It follows that any attempt to suggest a 'labelling' of the respect­ ive positions of the contributors would be fraught with danger. In its place I will offer the suggestion that these essays exhibit a set of what may be called 'critical traces' that serve to mark out different dimensions and degrees of their distance from Dworkin's project and its textual expression. These traces manifest themselves in different combinations and with different degrees of intensity; they express themselves in the following guises: (a) The sociological critique contends that in rej ecting the self­ referential character of positivism's attempt to ground the validity of law Dworkin provides an inadequate social and political theory on which to ground a persuasive legal theory. Some view his commitment to a conception of community that is unfractured and not torn by structural antagonism around class, race and gender, and which merely disagrees about the value to be placed on its competing ends as the primary source of the deficiency of his sociological underpinnings. Others come to much the same point via a critique of his celebration of the sovereign individual whose 'difference' is only about ends and values and not about the antag­ onistic locations within which individuality is constituted. There is a broad consensus that Dworkin betrays a complacent assumption of the unity and integration of law, which in turn leads to highly problematic ascription of purpose and intentionality to law. As Nietzsche aptly observed: The pu rpos e of law . . . is absolutely the last thing to employ in the '

'

history oflaw: on the contrary . . . the cause of the origin of a thing and its eventual utility, its actual employment in a system of purposes, lie worlds apart; whatever exists, having somehow come into being, is again and again reinterpreted to new ends, taken over, transformed, and redirected by some power superior to it. (Nietzsche 1 973:77)

(b) The interpretive critique welcomes Dworkin's interpretive turn, but holds that his complex mix of rationalism (exemplified in his continuing quest for 'right answers') and his hermeneutics (the quest for meaning without a unitary source of truth), misses, avoids or even evades the potentially radical implications of the interpretive turn and fatally undermines his quest for legal certainty. (c) The political critique, while welcoming his forceful argument 5

Alan Hunt that jurisprudence needs to ground itself in political theory, ex­ presses major reservations about the direction of the political theory he proposes. The objection is not that his political theory is liberal. The Left (or at least much of it) �as belatedly been trying to shake off its ambivalence towards liberalism and, more positively, is attempting to rework its relationship with liberalism. It is thus predisposed to attend to Dworkin's radical liberalism, but in all the essays his political theory is found wanting, though for a range of rather different reasons. It is here that an internal debate between the contributors comes most explicitly to the surface. One version is preoccupied with the failure of Dworkin's radical commitment to equality because it holds out no promise of over­ coming the classic opposition between individual rights and the pervasive reality of structural inequalities. While he has provided a worthy defence of a variety of programmes of affirmative action these always seem to foreclose on the possibility of engaging with the most persistent and intractable inequalities. He simply puts too much faith in law and too little in social action; social mo vements are absent from his agenda with the result that there is an ultimately naive reliance on legal paternalism. The other strand, which is marked by its positive espousal of variants of postmodernism, locates his deficiency in a continuing commitment to the conventional metanarratives of classical politic­ al theory, whether liberal or socialist, to engage with the fragmen­ tation of discourses and the multiple experiences of subjectivity, and of a principled incredulity towards grand narratives. 'Law' itself, far from being integrated and coherent, is composed of an infinity of incommensurable elements and, as an instrument of power, is reinforced by a multitude of nonjuridical techniques. Dworkin lapses into a naive faith in the curative properties of law and thus evades consideration of the strategies for emancipation that can empower the claims to knowledge that law excludes and thus render them capable of opposition to the coercive discourses in which legal discourses unwittingly participate. Yet beneath the surface of these different modes of identifying what it is that prevents Dworkin from fulfllling his radical promise there is a Common core. It lies in the shared critique of Dworkin's legal paternalism, personifIed in his fictional hero Hercules. It resides in his apprehension of allowing full play to democratic politics in which the j udiciary in general, and Hercules in particu6

Reading Dworkin Critically lar, plays the role of substitute. This gathering critique of legal paternalism suggests the possibility of a new radical consensus; it is one that ascribes a significant role to the legal enterprise as policing and guarding the contested boundaries of the political. Law itself is not the solution, but legal discourses, practices, strategies and tactics need to take their proper and modest places as part of the solution. There can and should be no Law's Empire; rather law (modest and uncapitalised) can and must contribute to the achieve­ ment of a set of arrangements that can allow play to the possibility of radical democratic transformations.

7

1

Law's Empire or Legal Imperialism? Alan Hunt

Law's Empire or Legal Imperialism?

This essay offers an overview of the liberal legal theory advanced and expounded by Ronald Dworkin. It is particularly concerned to trace the linkages between the major elements of his theory rather than to dwell in detail upon its particular components. The focus is almost exclusively directed to his first full-length presentation of his legal theory in Law's Empire (Dworkin 1986) . Not only is this work ambitious in its scope but it is also significant that Dworkin, aspiring to a readership beyond jurisprudential specialists, has been deliberate in seeking to achieve a more popular style of exposition. 1 The result is that this presentation of his views has a breadth and sweep not present in his earlier essays, but the price is a certain looseness of expression and a rather cavalier treatment of many intellectual positions from which he wants to distance himself. This essay seeks to mount a general challenge to the version of liberal legal theory that Dworkin has made his own. In the intro­ duction the concept of 'legal imperialism' is introduced and its connection with Dworkin's work established. In the second part, two distinct theories within Dworkin's work are identified and their connection explored; the contention is advanced that Dworkin's legal theory is not supported by the political theory on which he seeks to ground it. In the third part a critique of his political theory and, in particular, of his conception of the personification of the com­ munity and state is developed. In the fourth part his methodology 1. Dworkin's previous style of work, namely the periodic publication of collec­ tions of essays, allowed shifts and frequent reformulations of his argumentation (Dworkin 1978 and 1985) and thus always left the integration of his views into a general theory tantalizingly unfulfilled.

9

Alan Hunt of internalism is criticized and the fifth explores the consequences for his theory of interpretation. The conclusion advances the argu­ ment that the weaknesses and vulnerabilities of Dworkin's theory of law as integrity can best be understood as a fear of and attempt to escape from politics. Dworkin's title, Law's Empire, is tantalizing in that he makes no effort to explain it nor does its imagery figure directly in his exposi­ tion, yet the imagery is itself revealing and suffuses the whole text. The imagery of empire is only invoked on two occasions: We are the subjects ofIaw's empire, liegemen to its methods and ideals. (Dworkin 1986:vii) The courts are the capitals of law's empire, and judges are its princes. (1 986:273)

What is striking about these formulations is the distinctly feudal and hierarchical flavour of their imagery. The question that has puzzled me is: what should the reader make of Dworkin's title with its vivid, if paradoxical, imagery? I can only hope to fill Dworkin's own silence. At the most commonplace level the imagery celebrates law as the substitute for monarchy within representative democracies in terms familiar to a traditionalist conservative ideology of 'the majesty of law'. 2 At a more signifIcant level Dworkin should be understood as advancing an expansionist theory of law. His position is ex­ pansionist in a dual sense. First, it denotes his insistence that law cannot fruitfully be studied in isolation from wider issues of politi­ cal philosophy and morality. Second, and more importantly, his 2 . This imagery also makes reference to the origins of liberal theory in the

struggle against political absolutism and its association with monarchy and sover­

eignty. The rule of law as the negation of absolutism nevertheless inherits its majestic attributes and pretensions. Foucault captures this linkage oflaw, monarchy and sovereignty: At bottom, despite the differences in epochs and objectives, the representation of power has

remained under the spell of monarchy. In political thought and analysis we still

the head of the king.

have not cut off

Hence the importance that the theory of power gives to the problem of

right and violence, law and illegality, freedom and will, and especially the state and

sovereignty.... To conceive of power on the basis of these problems is to conceive it in terms of a historical form that is characteristic of our societies:

(1978:8�9,

10

my emphasis. A.J.H.)

the juridical monarchy.

Law's Empire or Legal Imperialism?

theory is expansionist in that he makes major claims about the centrality of law in contemporary society. Yet it is significant that he nowhere makes explicit the precise nature of this centrality; he appears content merely to imply it. His position suggests, without arguing the case, that law is constitutive of the structure and texture of representative democracies in the sense that it is the primary vehicle that manifests, institutes and celebrates the foundational principles that are the distinctive and distinguishing features of liberal society. Law is, for Dworkin, the very heart or core of liberal democratic society. The imagery of law as empire is linked to another figure embed­ ded in the high idealism that he assigns to philosophers who must advance a utopian vision to ' show how law can develop in the direction ofjustice while preserving integrity' (Dworkin 1986:409). Law is a 'dream' and in the tradition of courtly love its true vocation is a purity in which 'law works itself pure' (1986:400). 3 It is the connection between these illusive images and Dworkin's substantive legal theory that I propose to explore. To Dworkin's image of law's empire I have chosen to invoke the counterimage of 'legal imperialism'. My claim is that this imagery more accurately grasps the substance of Dworkin's theory than the nostalgic imagery of 'law's empire' . Legal imperialism involves a conception of law as a purposive enterprise in which state law is conceived as first selecting its targets and then aspiring to colonize, rule or otherwise govern major fields or aspects of liberal demo­ cratic society. The idea that law selects its targets draws attention to the sense in which the purposive proj ect involves a view of both its own limits and of its proper sphere; some version of the public/private distinction delimits areas appropriate to legal

I

3. It is interesting to note that Dworkin's conception of law as dream is circum­ Icribed in that each dream 'is already latent in the present law'. This thesis bears a .triking resemblance to one of the themes of Critical Legal Studies, at least the versions advanced by R oberto Unger and Duncan Kennedy, who see the trans­ formatory potential of the principle of altruism already present in legal doctrine, only needing to be given predominance over the ruling paradigm of individualism (Unger 1982:616-17; contract doctrine constructed around a limited number of competing principles, each matched by a competing counterprinciple; and Kennedy 1976:1685; historical shift in the priority accorded to altruism and individualism). Neither Dworkin nor the critical legal theorists offer an account of why our vision of what may be possible and desirable should be restricted to that which is already present in legal doctrine.

11

Alan Hunt

intervention and excludes others. 4 Having selected its appropriate field of operation, law must construct it in such a way as to render it amenable to legal governance. For example, law aspires to governance over politics, but the dispersion and heterogeneity of politics makes it ungovernable; instead politics is constructed in a truncated fashion as the decisions of a range of legally identified roles within specifiable institutional settings. Thus administrative law seeks to exercise governance over a legally identified concep­ tion of governmental decisions while constitutional law sets up in judgment over the boundaries of legislative competence. In gen­ eral, social relations must first be legally constructed as a prior condition for legal intervention. This point is significant in drawing attention to the fact that law is not simply a mechanism that seeks to bring under its governance preexisting social relations, but that law both constitutes and is constituted by social relations. The legal exclusion of some social relations as free from legal regulation is not simply an act of exclusion. It has a more complex function in that it involves as its first stage the separation of legal from other modes of governance and social control (for example, law is distinguished from custom) and in so doing installs a hier­ archy that demarcates the preeminence of the legal. Law proclaims itself sovereign. The sovereignty of law is not a matter of external political fact, as held by the legal positivist tradition from Austin to Hart; rather, sovereignty is an aspiration to which law lays claims and which it must vigilantly guard against all challenges. 5 In its most innocent form 'legal imperialism' denotes the role assigned by Dworkin and, more generally, by liberal legal theory to law as the impersonal sovereign that replaces the monarchical 4. This self-image of the spheres of intervention and non-intervention does not necessarily correspond to the actual boundaries of legal intervention. which may be revealed by an enquiry directed to determine the extent of legal penetration. The deployment of the public/private distinction, an unstable and unruly device, would obscure the extent to which, for example. property law constitutes an intervention in the field of labour relations; I have in mind the analysis of the relation between property and labour advanced by Karl R enner (1949) 5. See Arthurs' account of the nineteenth-century struggle between the English judiciary, in alliance with the legal profession, and the civil service around legal sovereignty over the administrative process (1985). A similar struggle has taken place over a longer period between the judiciary and commercial interests over judicial surveillance of arbitration and other commercial conflict resolution mech­ anisms.

12

Law's Empire or Legal Imperialism? sovereignty of absolutism. In its more developed form the imagery of legal imperialism seeks to capture the substance of what I will call the 'problematic of legitimacy', which takes the central prob­ lem about politics and about power to be whether or not the exercise of power is legitimate or illegitimate; a problematic that contrasts with that of radicalism, whose concern is with the results of power as a mechanism of domination. This defining characteris­ tic of liberal political and legal theory, and Dworkin's version of it, is further explored in the next section. Legal imperialism should not be conceived as a negative strategy. Dworkin proclaims an important positive role for law. Law is assigned the task of acting as the guardian of the boundary between state and civil society. Law, through the agency of rights bestowed on legal subjects, makes possible a form of politics in which the capacity of the state exists within prescribed and controllable bound­ aries. His position is characteristically liberal in that law is pre­ sumed to be separated from the contestation between social interests. In this guise law is the neutral umpire who enforces the rules of the game of constitutional politics - that is, law is a politics that imposes constraint upon both political actors and the state as a special political actor. The neutrality of law does not take the form of indifference toward the contending interests as is presumed in the due process models of liberalism; for Dworkin the value of ,integrity' gives effect to particular values and is thus only neutral when the issues in conflict do not impinge upon the value-set associated with integrity. In this conception of the role of law it is given an elevated and central space within the institutional arrangements of society. In this vision of sovereignty law can and must do every­ thing; the positing of the centrality of law excludes from consider­ ation the very notion that political and other social processes impose limits both on the capacity and the effectiveness of law. Dworkin has an unwarrantable confidence in the capacity of law to realise the political and ethical g oals of community and frater­ nity. This false confidence is founded on what can only be regarded as a nai've faith in the capacity of law to check and control the power centres of the political and economic system. Law holds out the great dream of social peace. We have an institution [law] that calls some issues from the battleground of power politics to the forum of principle. It holds out the promise that

13

Alan Hunt

the deepest, most fundamental conflicts will once, someplace, finally, become questions ofjustice. (Dworkin 1 985a:71)

More generally, as I will argue, the siren call of 'law as integrity' expresses the desire for an escape from personal preferences or political conviction. Underlying his legal optimism lies a parallel lack of confidence in democracy, in the capacity of popular participation in the public affairs of society to subject power centres to control through the primary agency of political rather than legal process. We should not assume, as Dworkin does, that the law can and does exercise governance over economic and political power. But this does not commit us to the opposite view that law has no capacity to affect such power. Instead it is necessary to recognise that a central problem for legal theory is precisely the need to focus on the limits and capacity of law. In order to explore these issues it is necessary to direct our attention to Dworkin's account of the connection between legal and political philosophy.

Two Theories or One? The Search for a Third Theory of Law

There is a flaw at the heart of Dworkin's project. I will attempt to state that deflciency in its most general form and then to identify a set of more specific issues that must be examined in order to make an assessment of his enterprise. The flaw I seek to reveal is that Dworkin advances two quite distinct theories but fails to provide a satisfactory linkage between them. The first is a recasting of his theory of adjudication in which he defends an account of judicial decision making in 'hard cases' in the form of a restatement of his longstanding opposition to the standard versions of the theory of judicial discretion. 6 The second theory is a political theory that incorporates his preferred version of liberal political philosophy. 6. I employ the notion of a ' recas ting ' of Dworkin's theory of adjudication to catch the sense in which there are a number of significant differences in the mode of expression that he employs in Law's Empire while the general content remains much the same as in early formulations (see 'Model of R ules II' and 'Hard Cases' in Dworkin 1978). Yet, at the same time, no change of linguistic form can leave the content entirel y unaffected.

14

Law's Empire or Legal Imperialism?

His claim is that his political theory broadens the terrain of juris­ prudence and is necessary to sustain and justify his theory of adjudication. I will argue that his political theory is naIve and furthermore that it fails to provide the promised support for his theory of adjudication. 7 It is significant that the great bulk of criticism and controversy generated by Dworkin's writing to date has been focused on his theory of adjudication and has largely neglected the wider political philosophy within which it is located. I will argue that the result of this neglect has been a failure to notice the glaring inadequacies within the general theory upon which the former has been con­ structed. Dworkin claims that one of the virtues of his theory is that it involves an explicit sensitivity to questions of political philosophy and political morality. This dimension is too often absent from or merely implicit in the rival theories that he criticizes. His quest is to lay the foundations of 'a more general politics of integrity, com­ munity, and fraternity' (Dworkin 1986: viii) that is capable of providing some unifying vision of the connection between legal practice and political justification. This focus is generated by his identification of the core issue of legal theory as the grounds for the legitimation of state coercion against citizens. It is thus necessary to examine the connection he posits between legal practice and politi­ cal morality. Dworkin's political theory revolves around what I have called the problematic of legitimacy, which focuses attention on the task of establishing the distinction between legitimate and illegitimate power. It establishes a paradigm that seeks to assign all incidents of social power to one of the dichotomous categories of, on the one hand, the legitimate exercise of power bounded by limits defined by rights and, on the other, illegitimate exercise of power, which transgresses those limits, thus justifying the normative label of oppressive power. So ubiquitous has this paradigm become that it seems to offer the only pertinent questions about power. Its per­ vading imagery is one in which power is a necessary evil; every 7. Philip Soper advances a similar distinction between two separable theories in

Law's Empire that he sees as presenting problems for Dworkin's project, but Soper

does not go so far as my argument in pressing the implications of the bifurcation of Dworkin's theory (Soper 1987).

15

Alan Hunt

instance and manifestation of which requires justification. 8 Within the liberal paradigm of legitimacy, law is assigned the double role of both providing the rules by which the distinction is made and then providing the means to police it. This conception of power imports a set of significant assumptions. Its preoccupation is with power as emanating from the unitary source of the state; and it is conceived as acting 'downward' upon the citizen/legal subject. Thus Dworkin operates with the presumption that state power is the maj or force that impinges on the individual. Within this conception of power law is conceived as operating through the mechanism of rights, which creates power-free zones for individual autonomy into which the penetration of power is illegitimate. The paradigm valorizes or confers special status upon the legitimating status of specific roles and discourses; for Dworkin the judiciary and the discourse of the appellate judgment are the central mechanisms. Finally it assumes that the problem of power can be solved; it assigns to law the key role of limiting state power or 'corralling' it behind the stockade of rights conceived as 'trumps' against the state. This paradigm of legitimacy serves to focus on a specific set of issues. It does not deny other questions or issues but operates to focus attention in such a way that other perspectives are ignored, forgotten Or marginalized. Thus Dworkin's preoccupation with state power acts to ignore all other sources of power; it is the state and its ever expanding power aspirations that threaten the citizen. That economic or corporate power may have far greater impact on the individual is not denied; it is simply not considered. Similarly this paradigm assumes that all forms of social power are amenable to legal policing and that law, at least in principle, has the capacity to contain or even to eliminate oppressive power. Thus it ignores all those forms of oppression and domination that are impervious to the corrective balm of legal rights. 9 8. That another problematic about power is possible is attested by Foucault's emphasis upon the productivity of power as the counter to the conventional negativity of power and the diffusion of power: 'power is everywhere' (1980). 9 . This assumption of legal effectiveness has particularly damaging consequences if one holds the view that the most pervasive forms of domination or oppression are associated with the structural dimensions of power revolving around class and gender, whicb are largely impervious to direct legal regulation. I do not claim tbat law is irrelevant to the contests over structural oppression; I contend tbat legal strategies may have a significant part to play in what I call counter-hegemonic

16

Law 's Empire or Legal Imperialism? We can understand much about Dworkin's position once we identify the mechanism he employs in drawing the distinction between legitimate and illegitimate power. His key procedure is to invoke the conception of 'integrity'. If an exercise of power is consistent with the requirements of integrity, that exercise is legit­ imate; conversely, if it is not, then the exercise is illegitimate. There is a shift in Dworkin's theory between the earlier invoca­ tion of 'principles' and his current focus upon 'integrity' . 10 One of the undoubted strengths of his theory is its attempt to go beyond the dualism of positivism and natural law, the rubric under which the history of legal theory has been written for nearly two cen­ turies. He does this by deploying the concept of principles con­ ceived as 'underpinning' (note the architectural metaphor) society or community. The importance of principles is that they are taken to be constitutive features of each society. In other words these criteria are in some sense sociologically real or grounded. They are then employed as the criteria for distinguishing between legitimate and illegitimate power. The importance of this device is that it avoids both the formalism oflegal positivism (law's self-refer�ntial employment of legally constructed tests of validity) and the exter­ nal normative criteria of legitimacy employed by natural law theory. While this strategy avoids the respective deficiencies of legal positivism and natural law, it brings with it another and quite different set of problems. The central question that needs to be addressed is the extent to which it makes any sense to conceive of societies as being founded upon normative principles, and if it does, whether Dworkin is justified in his claim to discover these constitutive norms in con­ temporary liberal democracies. These issues will be addressed below. At this stage I merely want to note the very limited attempts that Dworkin makes to ground the claim that principles are constitutive. He needs to be able to provide some account of strategies (Hunt 1990). It is not my intention to defend this large contention but merely to indicate its potentially disruptive effects for Dworkin's problematic of legitimacy. 10. In the Introduction to Taking Rights Seriously Dworkin raises the possibility that the right to equal respect and COncern might provide a unifying framework; he comments that this 'promise of unity' was not provided for in that collection and would need to be defended 'elsewhere' (1978:xv). I take it that the discussion of Integrity in Law's Empire seeks to honor that promise.

17

Alan Hunt where principles come from, how they are to be identified and what part they play in the construction of social relations in order to flesh out the metaphorical assertion that they underlie a com­ munity's institutions. His discomfort with sociological problems may lie at the root of his failure to address this question. If he is not able to provide an account that ' grounds' principles, there are serious consequences for his theoretical project. Without such a grounding his advocacy of integrity and the right of equal respect and concern is but another version of a Kantian rationalism, which merely serves to provide a set of more or less persuasive arguments in favour of his preferred normative values. But for Dworkin to retreat to this position would mean the surrender of many, if not all, of the claims to distinctiveness of his jurisprudential proj ect.

The Community Personified or Idealized?

The core concept of Dworkin's political theory is ' community' : the community ('true community')11 is identifIed as a moral agent that generates normative standards and creates moral obligations on the part of citizens to obey the law. At the same time, the primary virtue of a true community, namely, 'integrity' , provides the criteria for evaluating rival legal theories and is also the source of the best justification for judicial decisions in hard cases. It is immedi­ ately evident that he imposes a heavy burden upon his conception of 'community'; I will argue that his conception is unable to discharge this burden. He himself is conscious that it is likely to 'trouble' readers that his conception involves 'a particularly deep personifi­ cation of the community or state' (Dworkin 1986:167) . I will reserve for later consideration his lumping together of 'community' and 'state' and attend first to his case for the personification of community. The central proposition he wishes to sustain is that the com­ munity as such can be committed to principles or held to a collec­ tive responsibility in a way that is not derived from an extra­ polation from ordinary principles of private morality. It follows from this 'deep personification' that a community can and should 11. A true community is a 'bare community' that fulfills four conditions of reciprocity (Dworkin 1986:198-201).

18

Law 's Empire or Legal Imperialism? be treated as a moral agent. This personification has important connections with his account of interpretation. Conceiving of the community as personified leads through the texture of the language of personality to the presumption of the community as a univocal subj ect. The key move he makes is to treat law as univo­ cal. The result is that it allows him to pursue 'constructive interpreta­ tion' because it seems to follow naturally from his personification of the community itself that he is allowed to treat law as if were authored by a single writer. 1 2 The attention Dworkin gives to the problem of personification and collective responsibility is pursued in order to justify him in attributing collective or 'associative' responsibilities and obliga­ tions, in particular the obligation to obey the law, to political communities, of which the nation-state is the paradigm case. The solution to the problem of legitimacy of the nation-state that he proposes rests upon his contention that the nation-state is an instance of a 'fraternal community', which range along a spectrum from family and friendship up to the nation-state. His conception of political communities is normative in that they must meet certain conditions before they can impose obligations upon mem­ bers. The most important of these conditions is that the practices of the association must show equal concern for all its members. 13 Translated into the language of the 'model of principle' this condi­ tion requires that people are members of a genuine political community only when they accept that their fates are linked in the following strong way: they accept that they are governed by common principles. (Dworkin 1986:21 1)

He has no hesitation in accepting that modern Britain and the United States meet these conditions. We perhaps need to be re­ minded that his explicit project is one of 'defending an interpreta­ tion of our own political culture, not an abstract and timeless 12. This connection between the personification of the community and the assumption of the unitary authorship of the law is given specific affirmation and directly employed when he invites us to accept the analogy of law as a 'chain novel' (1986:288) . 13. The requirements Dworkin itemizes for the existence of a true community all revolve around the nature of the responsibilities that members owe one another; for example, that the responsibilities are personal. special, concern for the well-being of others, etc. (1986:199-201).

19

Alan Hunt

political morality' (1986:216) . It is, I believe, significant that he does not stop to consider that his view of modern Britain and the U . S . might be contentious and in need of some defence. My objection to Dworkin's conception of community is that, whatever might be the merits of his model of political associations as an exercise in utopian political philosophy, it focuses the core of likely disagreements on a terrain that he persistently avoids, namely, a sociological or empirical enquiry into the conditions under which fraternity may be said to be realised. 1 4 One of his examples may serve as an illustration: he argues that an army may meet the conditions of a 'fraternal association' if its structure and hierarchy reflect the assumptions of its participants that its roles and rules are equally in the interests of all (1986:201). I doubt whether agreement would be easy to secure that any army had ever met these condi­ tions. Thus Washington's armies in the War of Independence were probably too over-officered to pass the test, while Trotsky's Red Army giving key roles to political commissars was often bitterly resented by active soldiers . Whatever our views on these examples, it is scarcely a serious position to suggest that the structure and organization of the modern British and United States armies have rules and roles in the interests of all. An alternative account would focus on which participants were advantaged and which disadvan­ taged, and then would link this to their normative evaluation of their institutional structure. Dworkin's unquestioned assumption that contemporary Britain and the United States fulfill his conditions for fraternal association is breathtaking. Since he does not appear to regard it as contro­ versial there seems little point in developing an empirical argument deploying socioeconomic data to support such a challenge. 15 Rather it may be more fruitful to seek to identify the sources of disagreement between Dworkin and critics who regard his political judgment as naive. Any theory that employs the method, central to 14. A signifIcant line of objection to Dworkin's model of principle for political associations is that it omits to specify any material as distinct from normative conditions for a fraternal political association. I have particularly in mind the question of what forms and what degree of social and economic inequalities are compatible with fraternity. Dworkin, I suggest, is more inclined than is warranted to accept the conditions of formal political equality supported by some minimal welfare provisions as meeting the requirements of fraternity. 15. Allan Hutchinson uses precisely this technique to great effect in quoting statistics on racial and economic inequality in the U.S. (1987:662�3).

20

Law's Empire or Legal Imperialism?

Dworkin's approach, of judging social phenomena by means of their realisation of normative principles must confront the question: what kind of evidence is relevant to such an enquiry? Dworkin's implicit answer to this question is to place heavy reliance on the verbal pronouncements of high officials. Thus when politicians and judges conduct their discourse in terms such as e quality, equal respect and concern, rights, justice, etc. , he admits this as evidence to justify conclusions that such judgments can be said to be true of the political system within which they are deployed. His critics will claim that this is naive in the sense that it fails to recognise that such formulations are more plausibly regarded as components of specific legitimating discourses. 16 Given his interest and involvement in debates about interpretation, this failure is surely significant. It is also evidence towards the contention argued below that the absence of a concept of ideology reinforces Dworkin's naivete in political judgment. My objection is not to the conception of fraternal association itself but rather that, as constructed, the conception offers no prospect of agreement as to a 'fit' in concrete cases; as his own usage demonstrates, it is more revealing of the preferences of the user. Indeed we should note that his ideal community is one that asserts the compatibility of a radical or deontological individualism and a communal unity; he envisages it as united in community but divided in project, interest and conviction (1986:413)

Such a conception of community must presume that conflicts of interest are nothing more than individual preferences that can be reconciled by tolerance (e. g. , I am supremely indifferent to my neighbor's musical taste - that is, as long as he doesn't play it too loud!) . Such a conception collapses once cognizance is taken of structural conflicts (e. g., class, gender, race) where tolerance can­ not smooth away the ubiquitous or irresolvable. This obj ection can also be expressed in another form by noting the absence of any concept of ideology (or of any substitute) in 16. It is important to recognise that legitimating discourses are not always false (indeed truth/falsity questions are generally unhelpful); all that is required is a dose of commonsense skepticism that does not take the self-justiflcatory accounts of officials at face value.

21

Alan Hunt Dworkin's theory. He treats the political and legal discourse of officials in an entirely literal fashion; where political debates are couched in terms of rival conceptions of equality or respect he assumes that it is legitimate to assume that these virtues are in some self-evident sense adequate descriptors of the society or state about which they are used. The charge against Dworkin is that he is complacent in accepting the discursive or ideological conventions of insiders, in particular of the holders of political and judicial office, as giving access to adequate descriptions and evaluations of the political and legal systems in which they function. Dworkin's conception of the political community may be ob­ jected to on grounds of naivete in a second sense. He assumes the existence of a level of social consensus that fails any test of socio­ logical realism. He explicitly avoids resorting to social contrac­ tarian justiflCations of the legitimacy of political communities, but despite his attempt to avoid such argument he ends up advancing a modifIed version thereof. His 'model of principle' involves the contention that people accept that their fates are linked because they are governed by common principles. He is quick to insist that this condition does not involve the assumption of political consensus on substantive issues but merely an acceptance that politics is con­ ducted in a 'theatre of debate' within a scheme of principles whose existence is an historical fact. The conclusion of this argument he summarizes as follows: In short, each accepts political integrity as a distinct political ideal and treats the general acceptance of that ideal, even among people who otherwise disagree about political morality, as constitutive of political community. (Dworkin 1 986:211)

This position involves both the assertion of consensus about the rules of the political game and a contractarian thesis that this consensus exists by virtue of its general acceptance. Nobody would have any reason to accept substantive political decisions of which slhe disapproved unless assured that there was such a general accept­ ance which allowed her or him to fight again another day in the theatre of debate. Any such contractarian argument is subject to the harsh light of the demand to demonstrate that such reciprocal acceptance can be shown to exist; indeed this is one of the reasons Dworkin gives for avoiding contractarian theories. Yet he himself 22

Law's Empire or Legal Imperialism?

has walked into just such a trap in that his position relies on the assumption of shared values. He omits to tell us what evidence is relied upon in making this assumption that a normative consensus actually exists. I will not labour the point that Dworkin's account does not have the ring of truth for many minorities, both large and small, who are deeply alienated from and hostile towards the existing political order, whether in the U .K. or in the U . S. Nor will I press the more complicated point that we should be wary of assuming that large numbers do in fact play out their struggles in the political theatre within the rules laid down because they accept the universality of those rules; it may simply be that this is the only way such games can be played. A more adequate account would note that, since the political system is authoritatively established and defended by powerful forces, for subordinate interests to make any headway it may require a tacit acceptance of the dominant paradigm of political discourse. 17 An exactly similar point may be made with respect to the phenomenon of official lawlessness, corruption, deception and unapologetic cynicism . It would necessitate a much more detailed discussion to establish how much significance we should attach to it or just how much official lawlessness actually occurs and what volume of such practices can exist without it significantly undermining any claim that there exists a general acceptance of the ideal of integrity. Persons operating in public and political institutions know and work and, in particular, speak within the appropriate discourse either with little conviction or with such elastic views as to its substantive content that any judgment that this is evidence of general acceptance would verge on the foolhardy. All these objec­ tions come down to the claim that Dworkin is naive in giving too much weight to the surface of political discourse and not enough to its substance, and further that in listening to its surface he is at the same time lending his ear to those with power who successfully employ that discourse to the greatest advantage and not to the often silent or silenced minorities. The most damaging consequences of Dworkin's views on the personification of the community are manifested in his treatment of the state. He naively assumes that the state can be treated as an 17. The complex relationship between dominant and subordinate values and ideologies is discussed by Michael Mann (1970).

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Alan Hunt

institutionalized expression of the community. For example: Integrity becomes a political ideal when we make some demand of the state or community taken to be a moral agent. (Dworkin 1986: 166, emphasis added A.J.H.)

In a similar vein he simply assumes that state officials and, in p articular, judges 'represent' the community. Thus in speaking of judges he asserts that judicial opinions formally announced in law reports . . . are themselves acts of the community personified. (1986:248)

It should be noted that these positions are inserted in passing and he provides no argumentation to support this running together of community, state and officials. In substance Dworkin fails to provide a theory of the state. The seriousness of this omission, not uncommon in liberal legal theory, is to say the least surprising in one who has staked his ground on the importance of linking political and legal theory. Dworkin's assumption of the unproblematic connections among community, state and officials involves the simple but important omission of any dimension of power. If the state is a major site of the condensation of power it is of critical importance to enquire how power is distributed within the community. Where that distribution is uneven, the state, which should be conceived as acting upon and not merely reflecting the community, will reflect that uneven distribution of power. A similar naIvete is evident with respect to the relationship between 'officials' and 'community' . His account deploys a foun­ dational myth, which presumes that what may be called the 'natu­ ral community' predates state formation. It pictures people who through their free association create a 'community of free and independent people' (1986:41 1), which in tum gives rise to public roles and functions for which some members of the community take responsibility by becoming officials. The community through extension becomes 'the nation' and its institutional expression is born as 'the state'. What Dworkin does is to take a folk-myth view of the state formation of the United States and universalize it as a general theory of community and state. In Dworkin's account judges and other ofEcials are treated as 24

Law's Empire or Legal Imperialism?

direct representatives of the community; they are simply citizens who undertake certain public duties. Such a view simply assumes the truth of the prejudices and rationalizations of state officials who characteristically deny any separation or conflict of interest between officials and citizens. Any political theory worthy of serious con­ sideration must offer some account of the relationships among the representative process, the distribution of power, the existence of groups, classes and other expressions of particular interests and . their impact upon the practices of officials . In sum, a political theory requires some account of the interaction between the diverse practices and institutions that constitute the state whose outcomes are specifIc and involve complex distributions of advantage and disadvantage within society. The consequence of the absence of any serious theory of the state and political representation for Dworkin's theory is damning. He advances the claim that his theory of adj udication is founded upon an articulated political theory; but on inspection we fmd that not only are there serious defIciencies in his account of the personifIca­ tion of the community, but more importantly, his assumptions about the state and state officials, and the relationship between state and law, are of breathtaking naIvete. The result is that the major prop on which his legal theory rests is , if not absent, so weak as to make it incapable of supporting the legal theory which purports to rest upon it.

The Consequences of Internalism

The defIciencies of Dworkin's political theory are closely related to the methodology he adopts. He commits himself to the adoption of an 'internal point of view'. This methodology of internalism has wide-ranging implications for his whole project. The internal point of view takes as its starting point 'the participant's point of view' and, in particular, 'the judge's viewpoint' (1986:14) . The justifIca­ tion for this prioritization of the judicial viewpoint involves two grounds: fIrst, that judicial discourse has influence over other forms of legal discourse. Second, and more problematic, is the linkage he makes between his foundational contention that the 'distinctive' feature of law is its argumentative character and his methodological conclusion that the judge's viewpoint offers 25

Alan Hunt

a useful paradigm for exploring the central propositional aspect of legal practice. (Dworkin 1 986:1 4)

It is thus a view that treats litigation as the paradigm of legal practice. He qualifIes his commitment to internalism in two ways, both of which are unsatisfactory. The fust is to stress the narrowness of his current proj ect, which justifIes the focus on judges in black robes, whereas: A more complete study of legal practice would attend to legislators, policemen, district attorneys, welfare officers. . . . . [etc. ] (Dworkin 1986:12)

Dworkin assumes that the viewpoints of other participants in the legal process merely serve to flesh out or to complete the judge's viewpoint; he thus ignores the possibility that viewpoints can and do conflict. The internal point of view is not innocent but becomes a bearer of the interests of the judiciary and the legal profession. Aside from any grounds of intellectual justifIcation it should not be forgotten that lawyers and judges have a material and political interest in a centralized and unitary legal order. The internal point of view as represented by Dworkin is afflicted by the same un­ warranted faith in the effectiveness of law that is endemic among lawyers and judges. A serious application of an internal approach would construct its account of its object of enquiry from not only complementary but from contrasting and conflicting viewpoints. This would lead to a recognition that law can fruitfully be con­ ceived in ways foreign to the prevailing judicial ideology. As Habermas observes, in a different context, we need to take account of the view that what looks from the inside to be a totality, from the outside is some­ thing particular, that could also be otherwise. ( 1987:252)

Dworkin is careful to insist that the external viewpoint is also 'essential', but in what way he does not make clear. All his sub­ stantive comments about external theories are derogatory. For example we are referred witout explanation to 'the depressing history of social-theoretic jurisprudence in our century' (1986: 14). More serious i s the fact that he sets u p external theory as an 'Aunt 26

Law's Empire or Legal Imperialism?

Sally' to be knocked down. We are told that such theories ignore questions about the internal character of legal argument, so their explanations are impoverished and defective. (Dworkin 1986: 1 4)

Aside from a single reference to O.W. Holmes - and this, one suspects, takes cognizance only of some of his choicer aphorisms we are given no indication of who has committed such self-evident folly. 1 8 It is frankly an infuriating habit, in which Dworkin specializes, of making wide and sweeping characterizations of theoretical positions of which he disapproves without troubling to identify which authors are being criticized, and thus brushing aside any alternative position with a dismissive gesture. He does, however, defend internal theory against an unattributed objection of 'some critics' who are presumed to insist that we will misunderstand legal process if we pay special attention to lawyers' doctrinal arguments about what law is. They say that these arguments obscure . . . the important social function oflaw as ideologi­ cal force and witness. (Dworkin 1986:1 2)

He claims that this objection fails because it cannot provide the social realism to which it is committed. This is an interesting example of Dworkin's argumentative tactics. First note that his argument is launched against an unidentified group of critics; then the strong claim is made that they 'cannot', not that they 'do not', provide 'social realism'. But the essential argumentative step that supports his shadowy opponent's genetic incapacity to deliver the goods is missing. Instead, he sidesteps the issue and simply claims that both the internal and the external approach are pertinent and that they ask different questions . It is only because he imposes on external theory the unsubstantiated claim that it 'ignore[s] the structure of legal argument' (1 986:14) that he can fmd fault. 19 18. In contrast to Dworkin's dismissal of an external methodology one might counter with Pierre Bourdieu's eminently plausible defence of the need to adopt the perspective of the 'outsider' in order to inhibit the unreflective adoption of the Assumptions and values of ,insiders' (1977) . 19. In order to demonstrate that Dworkin's criticism of external theory conllates A range of different positions we can note a number of different strands. Empirically oriented 'socio-Iegal' studies generally ignore 'lawyers' doctrinal arguments'. but this is not because these are regarded as unimportant, but rather because the focus of

27

Alan Hunt

The obj ection against Dworkin's judge centered internalism is that it places the theorist/observer too close to its subj ect matter. It adopts the questions which concern judges or other privileged legal actors as providing the subj ect matter of legal theory; there is no recognition that their concerns may manifest the constellation of interests that surround their role within the legal enterprise or that they may be preoccupied with a desire to provide justifIcation for their self-conceptions. He adopts the self-description and self­ account of judges as a sufficient empirical grounding for legal theory. It is signifIcant that despite his concern with interpretation he adopts an entirely literalist view of appellate judgments in the sense that they are treated as an entirely self-sufficient form of discourse produced by authors who are innocent of all ideology, without interests, and with no concern for self-justifIcation. He should be criticized not, as many commentators believe, for his introduction of the ideal judicial hero, Hercules; rather, criticism should be focused upon his idealization of the judges that we have. His adoption of internal theory fails to provide sufficient grounds for the key leap that he makes from the uncontroversial view that 'judges are important' to the methodological fIat 'adopt the judge's viewpoint in the construction of legal theory'. It should be rela­ tively uncontroversial to insist that all forms of social theory, including legal theory, should embrace a hermeneutic dimension, that is, take account of the meanings and forms of consciousness of participants. Dworkin grossly oversimplifIes the methodological debates within the social sciences in thinking that they provide justifIcation for committing legal theory to the adoption of the standpoint of 'judges in black robes' (1986: 12) .

attention is upon the 'results' or 'output' of legal processes. But nearly all versions of theoretical sociology of law focus significant attention on the forms of legal reasoning; this is apparent in such contrasting views as those of Weber and Marx. On the other hand the fact that Durkheim, for example, has little to say about judicial reasoning is not a consequence of the external or sociological approach but an issue to be evaluated with respect to the heuristic of the theory. The different versions of sociological and realist jurisprudence, for example Pound, Llewellyn and Frank, all offer more or less developed accounts of judicial reasoning. More recently, Critical Legal Studies has, as has been widely observed, a very distinctive, and some might feel obsessive, focus upon internal doctrinal argumentation. We can conclude that Dworkin's criticism misses its point entirely, since ignoring doctrinal argument is not a common characteristic of external perspectives and that he conflates a range of substantively different positions on the very issue he is discussing.

28

Law's Empire or Legal Imperialism?

Dworkin's commitment to an internal methodology is very closely linked to the position he takes up with regard to the nature of interpretation. He seeks to place himself within the hermeneutic tradition, which contends that the understanding of any social phenomenon must take cognizance of the meanings of social prac­ tices for participants. He adopts a very aberrant element of this tradition by insisting that an adequate interpretation requires refer­ ence to 'purpose' or 'intention'. In his deployment of interpretation theory we should note that his immediate aim is to find grounds for rejecting all versions that attach primacy to an author's purposes. His rejection of theories of authorial intention fmds its practical expression in the debate over the proper construction of the U. S. Constitution; here Dworkin's immediate targets are those accounts that attach primacy to the intentions of the framers. Now that we know the use to which Dworkin puts his account of interpretation we can attend to one of his more significant moves. The most important step is one that appears innocent but has wide-ranging implications. The initial introduction of 'pur­ pose' has a common sense reference to the purposes or intentions of participants in social practices. But his proposed 'constructive interpretation' locates purpose not with individuals but with social practices. [C]onstructive interpretation is a matter of imposing purpose on an object or practice in order to make of it the best possible example of the form or genre to which it is taken to belong. (Dworkin 1986 :52) 20

This move raises an important question: in what sense, if any, is it either meaningful or helpful to attribute purposes to social objects or practices as distinct from the individuals who participate in 20. It should be noted that in order to avoid any suggestion that the interpreter might impose any purpose Dworkin immediately enters a qualification to the formulation quoted above. It

does not follow . . . that an interpreter can make a practice . . . anything he would have

wanted it to be. . . . For the history or shape of a practice or object constrains the available interpretations of it. though the character of this constraint needs careful accounting as we shall see. (Dworkin 1 986:52)

It is far from clear that Dworkin provides this promised account of the constraints

On interpretation; his requirement that an interpretation must 'fit' is only a qualify­ ,Ins condition which leaves entirely open the degree of fit necessary,

29

Alan Hunt

them? Dworkin is aware that there are problems with attributing consciousness to social collectivities and is anxious to avoid any hint of group minds or collective will. He seeks to avoid these problems by insisting that the purposes he refers to are those imposed by the interpreter and not those of authors or participants in a social practice. This intellectual move determines the direction of his subsequent enquiry: the key issue becomes how to judge which of a number of alternative interpretations is to be preferred or, in his terminology, which shows the practice 'in the best light' . I will have something to say on this below. But in the meantime it is necessary to pursue the issue of whether Dworkin's shift of focus from practices to interpreters solves the problem of 'purpose'. Dworkin seeks to implement this promised approach towards 'purpose' by means of a strategy he calls constructive interpreta­ tion. The problem is that he never succeeds in escaping from formulations that slip back into the location of 'purpose' as an attribute or characteristic of the practice itself rather than as some characterization 'imposed' by the interpreter. For example, in connection with his example of courtesy he distinguishes between (a) the opinions of participants about what courtesy requires (which is discovered by reflecting upon what are the 'distinct motives and purposes' of courtesy) , and (b) the interpreter's judgment about what 'courtesy really requires' (1986:65) . Despite brief excursions in footnotes into some aspects of the methodological debates in the social sciences (1986:419-20, 422) , his position is hopelessly con­ fused. He is unable to sustain his important claim that interpreta­ tion is something imposed by the interpreter because he persists in attributing 'motives' or 'purposes' to the social practice itself. The reason he gets himself into this difficulty is that he is anxious to maintain his commitment to the judge's viewpoint, and his account of purpose seems to give reinforcement by requiring that the interpreter be a 'virtual participant' (1986:422) ; yet at the same time he repeatedly lapses into the attribution of motive and purpose to social practices in a way that cannot be sustained or justifIed by reference to this methodology. To avoid the confusions Dworkin commits is simple; restrict all attribution of 'purpose', 'motive', 'meaning', etc. , to social actors (in this context it is perfectly proper to refer to the motives of a participant or of an observer) and do not extend this usage to the analysis of social Or legal p ractices. The implications of this simple 30

Law's Empire or Legal Imperialism?

move are important: law has no purpose or motive! Social institu­ tions and social practices do not have motives, purposes, inten­ tions, aims, or plans; what they do have are both meanings for participants and roles, results or functions. One particularly im­ portant consequence of denying the attribution of purpose to law is that it also denies the sense of Dworkin's reflexive usage in which he endows law with purposes for itself. His idea that 'law works itself pure' (Dworkin 1 986:400) or of 'law's ambition for itself (1 985b: 1) results in Dworkin being trapped by his own metaphors. His very metaphors of 'law's empire' and 'law's dream' take over; they are taken so literally that he ends up with a thoroughly dreamlike or romantic view of law as its own maker and mover. This combination of metaphor, metaphysics and methodology is fatal to the proj ect of legal theory; to attribute self-realising pur­ poses to law reduces legal theory to a metaphysical flight of fancy. The connection between Dworkin's espousal of an internal meth­ odology and his account of interpretation is manifested in his treatment of skepticism, and in particular the distinction he draws between internal and external skepticism. Unfortunately, this is another example of his use of an argumentative strategy of setting up a nonposition and then pounding it to death and thereby avoiding coming to grips with a more worthy objection. His position rests on a distinction between internal (skepticism within interpretation) and external skepticism (skepticism outside and about interpretation). The internal skeptic accepts the general interpretive project but challenges either all or some possible interpretations. An external skeptic is presented as rejecting the very proj ect of interpretation. S/he is deemed to deny that any discussion of the correct or best interpretation is a self-deception. Dworkin wants to use this to suggest that the external skeptic is hostile to the very proj ect of interpretation; but this is not the case. The serious point, which Dworkin evades, concerns his claim that interpretation holds out the possibility of a 'best' interpretation. His conception of 'best' is not used in a simple comparative sense, for example about whether one interpretation is 'better' than some rival interpretation; rather he seeks an interpretation that makes 'best' mean the same as 'right'. This step he needs in order to sustain the position that a judicial in terpre tatio n can produce a 'right answer' in law. Contemporary skepticism makes a far more serious point. It recognises that all interpretation is internal in the 31

Alan Hunt

sense that it is mounted from within some intellectual framework or set of evaluative assumptions. It is possible to have a discussion among interpreters about which interpretation is 'better' than another, but where there is disagreement about the evaluative framework within which the interpretive activity takes place, skepticism denies that there is an external Archimedean point from which it is possible to adj udicate between competing interpretive frameworks; it only remains possible to continue advancing reasons in favour of one framework rather than another. Skepticism in this serious form is not some external attack on the interpretive project but a salutary warning about the claims we are entitled to make about the very project of interpretation. The only sense that can be made of the claim for a 'right answer' would be in an interpretive context in which there was specific and detailed agreement about not only the framework of interpretation, but also around rules of priority about what makes one interpreta­ tion better than another (threshold requirements such as Dworkin's test of 'fit' would not be sufficient) . Is it possible that judicial interpretation might qualify as such an enclosed interpretive frame­ work in that it could, within the serious limitation identified above, claim to make 'correct' interpretations? As the rival theories of adjudication testify, there is no such consensus. But what if Dworkin succeeded in converting all jurists and judges to law as integrity, could we look forward to 'right answers'? The answer is still no, because it seems improbable that a theory ofjudicial interpretation could be reduced to a set of rules, in the gapless sense that different mathematical systems achieve, which would make possible iden­ tification of right answers; the closest that law as integrity might come to this goal is when it would be at its least attractive, namely, involving nothing other than the requirement of coherence, but since it is impossible to conceive of a sufficiently precise consensus about the substantive values against which coherence is to be tested, this route to certainty is seriously blocked. In short, Dworkin's distinction between internal and external skepticism turns out to be another device for privileging the stand­ point of one particular interpretive community, that of the appel­ late j udiciary. Judges are viewed as sharing homogenous set of decision procedures. Such a homogeneity is sociologically improb­ able and sits uncomfortably with the diversity of substantive values that Dworkin himself expects among judges. He seeks to domesticate 32

Law's Empire or Legal Imperialism?

skepticism by engaging only with an internal skepticism that is inside the interpretive community that Dworkin's theory presumes.

Interpretation, Ideology and Discourse

If Dworkin's methodology places him too close to his object of enquiry, the absence of concepts of ideology and discourse (or their equivalents) shifts his legal theory toward legal apologetics. He has an entirely uncritical view of judicial utterances; for him they provide direct access to the working of the legal process. He treats the surface level of argumentative strategies as providing direct access not only to the operative reasoning in particular judgments but as revealing the value commitments, goals and obj ectives that underlie the j udicial enterprise. What judges say is important be­ cause it frequently includes a j ustification of what they do to others in the name oflaw. Dworkin fails to grapple with the problem that, like other discourses, legal discourses have the content they do because they are constructed not only within the rules of particular language games, but also within an ideological framework, which creates limits to what can be said. what motives may be admitted, what interests declared, etc. One would have anticipated that Dworkin's interest is interpretation would have given him some awareness of these issues. The consequences of the absence of a concept of ideology become clearer if we examine the theory of interpretation he constructs. Dworkin's theory of interpretation is a rather simple one, con­ sisting ofj ust two levels: the first is the immediately given surface. which only requires interpretation as to meaning. To discover what the speaker 'means' is a semantic matter (which Dworkin calls conversational interpretation) . The deep layer of interpretation, and the one that marks his most distinctive but at the same time idiosyncratic position, is what characterizes 'creative' or 'construc­ tive interpretation'. This mode reaches down below the surface of the text for the values or principles that underlie the social practice to which the text refers. But exactly what these metaphors of depth and surface signify is the unstable and intangible core of Dworkin's legal theory. To come to grips with these issues involves consider­ ation of the constitutive thesis of constructive interpretation: con­ .Itructi ve interpretation consists of making the best of what is 33

Alan Hunt

interpreted, and the best interpretation is that which gives ex­ pression to the most attractive value(s) on which the object of interpretation is based. What this requires is shrouded in confusion. I will consider what it might mean to show something in the best light. As we have seen, Dworkin's theory of interpretation requires the interpreter to impose 'purpose' on the object of interpretation. The objective of this exercise is to make of the practice 'the best possible example of the form or genre to which it is taken to belong' (1986:52); in general the interpreter is asked to show the practice being interpreted in 'the best light possible' (1986:243) . It is necess­ ary to enquire what is involved in a theory that seeks to present its object of enquiry in the best light. There are a number of different constructions that can be placed on Dworkin's phrase 'in the best light'. Dworkin appears to employ the following different versions at one time or another. 'In the best light' is used in the sense of 'accentuating the positive, eliminating the negative' . There is evidence that this is his sense when he contrasts it with the view attributed to Critical Legal Studies: They may want to show law in its worst rather than its best light. (Dworkin 1986:275)

This sense is testimony to his unquestioned optimism about law and his clear dislike (manifest in his discussion of skepticism and of Critical Legal Studies) of views that he takes to be suspicious or unenthusiastic about law. This approach has an unpalatable side to it: it reduces theoretical differences to a simple loyalty test; loyalty tests are illiberal in general and especially so when employed by liberals. 2 1 There is little that is attractive in this conception: it makes it difficult to draw a distinction between showing law in its best light and the sense in which this aim invites us to conceal Or to distort that which we interpret. 22 This is such an unsustainable 21 . llIiberal responses by liberals when confronted with a radical critique are manifest in the demonology that imagines critical legal theory as posing threats to 'law as we know it' invoked by professed liberals Paul Carrington (1984) and Owen Fiss (1986). 22. No doubt the touch-up men of the old Pravda believed they showed their subject 'in the best light' when they removed the birthmark on Gorbachev's

34

Law's Empire or Legal Imperialism?

position that despite his lapses in this direction we must assume that this is not what Dworkin means by showing something in its best light. A second possible version of 'in the best light' is one that might be used only in the limited sense carrying the idea that some interpretations may be 'better' than others. But this version cannot be what he has in mind because it would not provide the necessary support for his 'one right answer' position. To say that one inter­ pretation is better than another simply does not say enough. A more significant reading of 'in the best light' can be con­ structed as expressing the quest for the true or correct interpreta­ tion. In this area Dworkin's views are extremely muddy. He makes a number of inconsistent intellectual moves. He denies the possi­ bility of obj ectivity, which he calls a 'kind of a fake' (1985a:172). 23 But he asserts the possibility of a correct or right interpretation. The importance of this step is crucial because his distinctive claim to 'one right answer' in hard cases rests upon it. His position is most clearly set out in his account of how Hercules would retry the McLoughlin case24 concerning liability for emotional injury. He extracts six possible interpretations, which are subj ected to the first test of 'fit' with past decisions. 25 Those interpretations that pass that test are now subject to the judgment of 'law as integrity'; from which test there is a clear winner, or 'right answer' and this is the one which shows the community's structure of institutions and decisions ­ its public standards as a whole - in a better light from the standpoint of political morality. (Dworkin 1 986:256)

forehead, as did the White House publicity staff when they portrayed President Reagan as intellectually and physically vigorous. 23. He insists, for example, that 'I have no interest in trying to compose a general defence of the objectivity of my interpretive or legal or moral opinions' (Dworkin 1985a:172). 24. McLoughlin v. O'Brien, [ 1 983] 1 A.C. 410. 25. In his earlier work the test of fit was a threshold or qualifying one; it was sufficient that the fit was adequate (Dworkin 1978:246-47) . Interpretations, like athletes competing in the Olympics, must first achieve a qualifIcation standard, but thereafter enter the main competition on terms of formal equality. However, in Law's Empire, 'fit' seemS to play a different, and I suggest more confusing, role. Now he wishes to take account of the degree of fit (1986:246, 256) . This idea can only cause havoc for his account since we now have two active criteria but no measure of the weight to be accorded to these incommensurate standards.

35

Alan Hunt

The immediate problem with this position is whether it provides a sufficient degree of resolution to support the claim that it can pick out the winner even when the competition between viable inter­ pretations is close. There might be widespread agreement about the interpretation that employed Dworkin's tests to narrow the field to the most attractive intepretation. But he would not accept this dilution of his position. Dworkin seems unwilling to meet the objection that his theory cannot yield the degree of resolution that it claims. The problem that needs to be confronted is simple to formulate: his theory requires him to be able to identify a community's principles or public standards with a degree of precision such that these formu­ lations can then be compared with alternative interpretations of some rule of law in such a way that a determinate distinction between the alternative formulations can be arrived at. He fails to meet these requirements in two respects: he tells us almost nothing about how we might discover what a community's principles are; instead he advances a lengthy defence of his own favoured principle (law as integrity) . Then without argumentation of any kind he assumes that this principle is connected in some way or another unspecified - with the political and legal systems of the modern United States and Britain. He seems supremely uninterested in a number of extremely controversial and problematic issues that surround this quest for the community's values and their relation­ ship with the justification of legal doctrine. Where do 'principles' (or 'purposes' since he seems to use these terms interchangeably) come from? The problem I have in mind in this roughly framed question is the important issue of whether Dworkin is m aking the claim that principles are in any sense foundational for or constitutive of social practices and institutions . In what sense, if any, is law 'based' or 'founded' on principles? Dworkin seems to think that his view can be sustained. His most general conception of principles is that they are 'moral principles that underlie the community's institutions and laws' (1978:22) ; he makes no effort to explain or to explore in what way principles might be said to 'underlie' institutions or laws. On the other hand he emphasizes that his focus is not upon principles but rather upon 'arguments of principle' that fulfill a justificatory role in legal theories. His oscillation between treating principles as social facts and treating them as forms of argument is deeply embedded in his 36

Law's Empire or Legal Imperialism?

theory by means of his two stages of interpretive judgment, namely, fIt and justification. It is the dimension of 'fit' that in this respect creates problems; every proposed interpretation must meet a threshold level of fit with the historical record either of a particu­ lar line of precedent cases or sometimes, expressed in more general terms, with the background morality of the community. In other words, there is a shift in Dworkin's account from historical or sociological argument, which makes appeal to some criteria of verification, to an entirely different level, one in which the issue changes to the problem of what is involved in providing the best justification for the historical or sociological claims implicit in the formulation of a specifIc legal principle or of ' law as integrity' as a composite umbrella of principles. It is the blurring or confiation of these two quite different issues that allows Dworkin to give the appearance of advancing a legal theory that connects accounts of the process of adjudication (i. e. , what judges are doing when they decide cases) with a normative justification of the institutional structure of contemporary liberal democracies in a form that simply takes for granted correspondence between the operation of legal and political institutions and the theoretical justifications advanced. It is this general lapse into political apologetics that fatally under­ mines his 'one right answer' thesis. It is significant that he makes no attempt to describe the criteria to be employed when the judge or some other interpreter is comparing the formulation of the alterna­ tive rules with the formulation of the principles/standards from which is expected to emerge the best or most attractive account. There is no dispute that the methodology he ascribes to Hercules provides an interesting and potentially fruitful way of arguing the merits of a number of alternative formulations of a controversial rule and that it makes possible the exclusion of 'wrong' answers. But the burden must rest with Dworkin to support his claim to have prescribed a method to arrive at a uniquely right answer. The nearest he comes to addressing this objection is to pose it in the following form: that 'he has no way to prove, against those who disagree, that his opinion is better' (1 986:264) . His dual response to this obj ection is strange because the first entirely concedes the point when he argues that the best we can expect from judges is that they stick in a principled fashion to their own convictions. This does not provide any help to the reader anxious to know which of two 37

Alan Hunt

equally principled judges has arrived at the 'right answer'. His second response is that the present obj ection could not count as an objection to law as integrity distinctly, for it would apply in its full force to pragmatism or to conventionalism. (Dworkin 1 986:264)

This is an evasion: Dworkin claims that there is one right answer, and the critic challenges 'How can we get from the argumentative claim that one interpretation is better than another to the claim that one of them is right?'; to which Dworkin replies 'That's an unfair question because theories X and Y can be challenged in the same way'! The real difficulty is that he does not confront the key difference that makes his claim interesting; he persistently evades considering the move from the uncontroversial 'better' interpreta­ tion to the controversial 'right answer'. There is a connection between the deficiencies in Dworkin's theory identified in this section. His problem is that he needs to make intellectual shifts from the real world (e. g. , how to provide the most satisfactory descriptive account of what it is that judges do) to the interpretive evaluation of arguments. But he has no conceptual apparatus with which to link these realms; yet at the same time he is concerned not to trap himself inside a simple positivist distinction between fact and value. It is in this respect that the absen t dimension of a theory of ideology or discourse capable of providing the mediation between the speeches and texts pro­ duced and the language, signs, values and beliefs in and through which they are constructed is particularly serious. This absence has serious consequences for his claim to provide an interpretive account of law because it confmes him to the surface of the interpretive process. In practice that comes down to what judges say in justifying their decisions. The only other level at which he can function is to rationalize these utterances by the speculative activity of searching out those argumentative formula­ tions (called 'principles') that render judicial utterances coherent. It is to this project that he gives the impressive title of 'law as integrity' . I find it very difficult to share his excitement about integrity; it is merely an extrapolation from the stock in trade idea of treating like cases alike. Integrity itself comes down to 'consist­ ency in p rinciple valued for its own sake' (Dworkin 1986:167). He fails to persuade me that consistency and coherence are anything 38

Law's Empire or Legal Imperialism?

more than limited and formalistic values that have a self-evident place in legal theory but are incapable of providing its whole structure. Reduced to this role, the social function of legal theory becomes to provide a second-order justification for judicial decisions. 26

Law as the Escape from Politics

We can finally understand Dworkin's project. It is the construction of a legal theory motivated by a linked set of fears or aversions: the fear of subjectivism or personal preference, the fear of relativism or nihilism (external skepticism) , and the fear of pragmatism/ utilitarianism; these taken in aggregate make up the fear of politics. This fear of politics and the corresponding dream of discovering a means of resolving political problems by some means other than politics is deeply embedded in the problematic of legitimacy and is endemic within the liberal tradition. In Dworkin's case the fear of politics is embodied in his preoccupation with the problematic of legitimacy with its search for the most attractive justification of state coercion against citizens. Law is the answer, that is, the conception of a unified and coherent system of state law as a decision process for disputes that is separated from politics. The logic, then, of legal imperialism is to impose law over politics. Legal imperialism or 'law over politics' is a dream. It expresses the desire for a realm of principle in which law embodies the 'attractive' values of the political community and omits the less 'attractive' face of politics, the clashing and trading between con­ flicting interests. The hostility to politics as trade-offs between interests is explicit in his criticism of 'checkerboard' legislation (1986: 1 78fI) . His conception of principle manifests a desire for an alternative decision process to replace the inevitability of making hard choices in a world sullied by compromises and coalitions founded on competing interests. 27 In the same vein the dream of a law which works itself 'pure' involves a conception of purity in 26. The justificatory role of legal theory is entirely consistent with a reserve role

of criticizing those decisions which cannot be pressed into the justificatory mould. 27. A particularly bizarre alliance of strange bedfellows is that which has emerged

in both the U . K. and Canada in defence of sunday observance laws when left wing trade unions in the retail industry stand alongside right wing religious fundamentalists.

39

Alan Hunt

which principle is conceived as counterposed to politics. Even his developed conception of principle, now in the garb of 'law as integrity', is pared down to the rather unattractive but safely apolitical value of coherence. The fear of politics does not simply function as a mechanism of exclusion. It operates to establish a separation between law and politics and, at the same time, to instate and prioritize one set of political values, because as Dworkin is fully aware, the substance of law as integrity involves a particular mix of political and moral values. What keeps Dworkin from explicit self-contradiction is an interesting separation in his conception of politics between a realm of political theory where the preoccupation is with questions of morality and the less edifying world of 'real politics' where com­ promise, conflict, and power are the order of the day. By speaking in two different voices about politics Dworkin conceals the coexis­ tence of the fear of politics with the espousal of liberal politics. Legal theory as the embodiment of liberal political values is far from being the worst kind of politics or the worst kind of legal theory. What needs to be criticized is his attempt to construct the agenda of legal theory in such a way as to embrace the concerns of the liberal tradition while marginalizing or excluding the alter­ natives thereto, particularly where, as is the case with Critical Legal Studies and feminist jurisprudence, they seek to grapple with the power and political dimensions of law from a realist rather than utopian standpoint. 28 The dream at the heart of Law's Empire is really a nightmare. It is the nightmare first identified by H.L.A. Hart, for whom the nightmare was that law was really politics in disguise;29 and his criticism was accordingly directed against the Legal Realists. Dworkin's nightmare is the fear of facing up to the inescapably political nature of law and it is significant that his sharpest and most focused criticism is directed at Critical Legal Studies, which has taken over significant features of the realist tradition;30 it is Critical 28. Joseph Singer offers a persuasive argument, via a critique of the dualism of objectivism/nihilism, for the necessity of legal theory engaging with law as a form of political practice (1984). 29. Dworkin was for Hart 'the noblest dreamer of them all' with his advocacy of

the 'one right answer' version of the search for judicial certainty (Hart 1983). 30. For an account of the relationship between realism and Critical Legal Studies see White 1981 .

40

Law 's Empire or Legal Imperialism? Legal Studies which more loudly even than realism insists on the political character of legal practices. His nightmare expresses the fear of falling into the abyss of subj ectivism and relativism. It is important to stress that to wake from the nightmare does not involve an acceptance of a simple conflation of law and politics (a position occasionally encountered in leftist critiques of law31 ) , but rather that law is a special and particular form of politics. In just the same way representative democracy and academic controversy are special varieties of politics. The differences and consequently the boundaries between the different forms of politics are well worth defending; for example, the majoritarian principle plays a different part in law, representative democracy and academic debate. Legal politics can thus be differentiated from other forms of politics - for example, principles of coherence or consistency are most pro­ nounced within law but are also important in academic debate and much less so in representative democracy. While legal politics is different from other varieties of politics Dworkin's nightmare is caused by his unrealisable desire to erect a clear and permanent boundary around law. His project can be grasped with the meta­ phor that he seeks to surround law with a semipermeable mem­ brane through which 'politics' can only pass in a suitably purified form of moral principles. Dworkin has set himself the obj ective of changing the landscape of legal theory. He has sought to displace the traditional battle­ ground between legal positivists and natural lawyers. This is a laudable goal, but the unavoidable conclusion is that he has failed to put in place an alternative theoretical framework within which debate about law can fruitfully take place. His failure is precisely the refusal to confront the inescapably political dimension of law or to acknowledge that law is politics in a special and distinctive form. It is a failure because the persistent and organizing concern of his theory, sometimes on the surface and in other places buried, is the fear of politics. The recognition that this fear is the motivating force behind his text explains some of the more opaque features of his work. In particular it helps explain the tension generated by his espousal of an interpretive approach to law while, at the same time, adhering to his 'one right answer' position. He retreats from the 3 1 . As illustrations of positions that come very close to the equation oflaw and politics see Bankowski and Mungham (1976) and Lefcourt (1971).

41

Alan Hunt recognition, accepted by the realist and the critical legal theorists, that adjudication is a form of politics. Similarly it explains why he takes such pains to personify community and law because it then makes it possible to assign a 'purpose' to law that both marks and celebrates the separation oflaw and politics. It helps to explain why the much vaunted law as integrity turns out on closer inspection to be a rather tame and unattractive prioritization of the properties of coherence, since this once again serves to keep politics at bay. The recognition of the fear of politics tells us that the distinction between policy (politics) and principle (law) is a political distinction, which has the political aim of claiming for policies of which Dworkin approves the privileged label of principle. 32 His aspira­ tion to reach the pure heights of the realm of principle IS like the shock experienced by the modern hiker in search of pure air and water who discovers that even the wilderness is being ren­ dered sterile by acid rain. Just as there is no escape from the politics of pollution so there is no escape from the politics of law. Perhaps it is not overstating the importance of this issue to say that whereas the separation between law and morals was the touchstone of the jurisprudential encounter between legal positiv­ ism and natural law, today the theoretical and ideological divisions in legal theory revolve around the debate over the separation oflaw and politics. In conclusion I want to borrow some of Dworkin's optimism. Although I conclude that his Herculean labors are a failure and that in particular he has not succeeded in transcending the opposition between natural law and positivism but rather has merely shifted the dichotomy from law-morals to law-politics, we can learn much from his failure. We can see, perhaps more clearly than before, that his dream of a law free from politics can never be realised. He has pursued that goal with single-mindedness, deploying all his un­ doubted abilities, throughout the text of Law's Empire, but is no nearer to realising the goal than in his earlier work. The difference is that if Dworkin, the most persuasive advocate ofliberal legalism, has failed in his project, we may set out with some confidence in what we have always been led to believe is the minefield of 32. Stanley Fish links this characteristic of Dworkin's theory to his 'egregious elitism', which pictures politics as a sordid arena while law is an elevated and potentially pure forum of principle (1987:415-16).

42

Law's Empire or Legal Imperialism ? law-as-politics. We may discover that the minefield is nothing more than the fact that we all, to some degree, share the liberal fear of politics. The task oflegal theory is to grapple with the specificity of law as a form of politics.

43

2

The Last Emperor? Allan C. Hutchinson *

Contemporary jurisprudence is a crazy combination of morality play and playground game. It not only moves back and forth between the two, but seems to exist in a continual and simul­ taneous state of high intellectual drama and knockabout comedy. Actors and comics come together in an academic version of 'King of the Castle' . But one should not assume that the thespians have the corner on truth nor that the vaudevillians are not deadly serious. No mistake should be made over the importance of the battle between the incumbent King of the Castle and the aspiring Dirty Rascals nor the earnestness of the protagonists. The intellec­ tual stakes are high and influence over the legal enterprise is the prize: 'madmen in authority, who hear voices in the air, are distilling their frenzy from some academic scribbler a few years back' (Keynes 1936:383-84) . At the heart of contemporary jurisprudence is the work of Ronald Dworkin. In his own imperialistic rendering, he is the philosopher king of the jurisprudential castle; 'the courts are the capitals of law's empire, and judges are its princes, but . . . [phil­ osophers are] its seers and prophets' (Dworkin 1986:407). Having dislodged H.L.A. Hart in the early 70s with a 'naturalist' putsch, he has managed to retain his preeminent position in the face of a constant wave of assaults by a variety of dirty rascals . His power *

I am grateful to Corinne Doan and Richard Epstein for their assistance in preparing this chapter for publication. This essay attempts to weave together different threads of argument that I have developed in a series of arguments about/against D workin over the past few years. In retrospect. I realise that he has been one of the most important influences on my intellectual career. l owe him a great debt in that my own work has taken shape through efforts to articulate to myself the error of his ways.

45

Allan C. Hutchinson base comprises a small cluster of traditional ideas, which he draws on and applies in an almost infinitely resourceful and imaginative way. His claim to originality, ifany, lies in his own particular blend and defence of those ideas rather than in their intrinsic thrust or pedigree. Indeed, the glamour and longevity of his reign is, at least in part, due to the opportunities his foes have provided him to develop, strengthen and consolidate his theory. His most import­ ant contributions to the jurisprudential tradition have been made in these altercations. His especial talent lies in his uncanny ability to turn the apparently debilitating attack to his own advantage. Few can have owed so much to their aspiring usurpers. In this essay, I intend to play the part of a particular and notorious kind of dirty rascal - the Critical Legal Scholar. Not surprisingly, I maintain that the Critical assault is truly fatal to Dworkin's project and cannot be resisted by fancy Dworkinian footwork. If at times Critical Legal Studies tends to be too playful, the traditionalists take themselves much too seriously. After a brief account of Dworkin's ideas and arguments, I will subj ect them to the Critical critique. This comprises two related lines of attack. First, I explore his persistent efforts to establish a workable distinc­ tion between legal reasoning and ideological argument. Secondly, I will challenge his defence of the claim that law is grounded on a coherent and just theory of social justice. After setting out these two points of criticism, I will bring them together by paying particular attention to Dworkin's appropriation of communitarian rhetoric as a possible way to complete his jurisprudential project. The conclusion suggests an alternative and constructive mode of jurisprudential thinking and practice that might be pursued.

I

Espousing a robust brand of 'liberal legalism' , Dworkin's reign has been characterized by a potent combination of philosophical wit and political savvy. He is equally at home in the rarefied atmos­ phere of metaphysical mind games and the muck-and-bullets of realpolitik. He has managed to shift the focus of jurisprudential concern away from a purely philosophical and barren analysis of legal abstractions. His theory oflaw and adjudication seeks to bring the cool climate of traditional legal philosophy into the hothouse of 46

The Last Emperor? political debate. It is a tribute to his charisma that he has induced most of the leading contemporary legal and political theorists to address his writings, if only to dismiss them. He has two stock responses to criticisms; he chastises the critic for having misread him and not appreciating the subtlety of his argument or he thanks the critic for having provided him with the opportunity to develop further a vague argument. The fact that he has been subject to so many 'fatal' attacks and yet still managed to rise phoenix-like from the ashes says much about the state of contemporary jurisprudence. As with all important thinkers, Dworkin's ideas have not stood still and his writings evidence a marked progression. He is con­ stantly refining and developing his arguments and ideas. Indeed, Dworkin's ideas have undergone significant alteration. But there is an increasing sense of desperation to his manoeuvering. Although he remains committed to a basic set of operative assumptions and foundational premises, he has made considerable changes and his ideas have shifted with the critical wind. On his arrival on the jurisprudential scene in the 1 960s, Dworkin correctly identified H.L.A. Hart as the incumbent philosopher king and began his own campaign to step into that position with a stylish critique of Hart's theory of law. Hart had revived the moribund positivism of English jurisprudence. Using Austin as a convenient foil, he offered an elegant and sophisticated account of law as a dynamic system of rules whose unity and pedigree were ensured by a master rule of recognition. His ambition was to put the positivist insistence of a separation between law and morality on a much sounder footing. Yet he did not make the exaggerated pseudo-scientific claims of his formalist forebears. He took on board, albeit in a suitably domesticated form, the realist critique. Rules of law were described as 'open-textured' (Dworkin 1986:124); although there was a settled core of meaning, the penumbral regions of rules allowed for judicial creativity. Dworkin attacked this maj estic edifice on all fronts, alleging that such a concept oflaw was inaccurate and incomplete. For Dworkin, rules were merely a particularly inflexible variety of legal precepts; other standards and principles of a more pliable nature comprised a large part of legal system. Moreover, no master rule could be devised to control these principles for 'they are controversial, their weight is all important, they are numberless, and they shift and change so fast that the start of our list would be obsolete before we reached the middle' 47

Allan C. Hutchinson (Dworkin 1978:44) . The identity of the operative precepts of any legal system becomes a matter of political morality. In making these criticisms, Dworkin was not simply replaying the old realist refrain. These criticisms were intended to act as the foundation for his own revitalized theory of liberal legalism. He charged Hart with having conceded too much to the realists. Even if rules were incapable of definitively disposing of all disputes, this did not lead to sporadic outbursts ofjudicial anarchy. Although it might require a Herculean effort beyond the resources. of any human judge (Dworkin 1 978:106-10) , they could still meet their democratic responsibility to apply and not make law. Indeed, Dworkin insisted that there was, at least theoretically, a single 'right answer' to all possible legal controversies. Any doctrinal uncertainty or disagreement was not attributable to the law itself, but to its judicial articulation and presentation. All this, however, represents the prototype of Dworkinian juris­ prudence. The present model has moved a long way from those rather brash beginnings. Dworkin's most recent writings have sought to demonstrate that 'law . . . is deeply and thoroughly political . . . , [b]ut not a matter of personal or partisan politics' (1985a:527). Judges are political actors, but their power is con­ strained by a society's history and its democratic character. The state does not give them a blank cheque on which to write in the political currency of their choice. For Dworkin, legal theory is not so much about the legal materials, but about the reading of them. The judge must breathe political life into the dormant words of legal texts. This is done by applying the twin tests of 'formal fit' and 'substantive justice'. Any interpretation of the legal materials must be able to demonstrate some plausible connection with so­ ciety 's legal history. However, the better theory is not necessarily the one that accounts for the most decisions or opinions. It is only a heuristic device or rule of thumb. Accordingly, simply because Judge Posner, for example, might claim that his 'economic effi­ ciency' thesis seems to explain more cases than a 'rights' thesis, this does not settle the jurisprudential debate in his favour (Posner 1981 :48-1 18) . The requirement of fit interacts with the second requirement of 'substantive justice' and merely acts as a threshold; 'if an interpretation . . . is far superior "substantively" it may be given the benefit of a less stringent test of fit for that reason' (Dworkin 1985a: 172) . 48

The Last Emperor? The requirement of 'substantive justice' obliges the judge to develop a scheme of rights that a just state would establish and enforce. Of course, this task can only be performed in a partial, piecemeal and provisional way. Yet, for Dworkin, the conscious striving for such a perfected theory is the hallmark of adjudication. Nevertheless, Judge Posner might still persist in his support for the efficiency thesis not only because it accounts for more cases, but also because it offers the better political justification for existing judicial practice. Dworkin's response to this stubborn strain of heresy is as clever as it is convincing . In constructing their theories of political morality, judges are further guided by the fact that they operate within a democratic regime of governance. This does not demand a vulgar reliance on conventional morality, which is but an ephemeral product of democracy. The bedrock of democracy is 'the right each person has to be treated, by his or her government, as an equal' (Dworkin 1985a: 1 80) . Consequently, judicial power is legitimated by this commitment to uphold the existing political order of rights and only to extend it in some equal manner. In this way, law is rational and just. By engaging in this limited public formulation of substantive values , Dworkin concludes that his theory of adjudication better actualised the democratic ideal than any of his positivist pretenders or, presumably, radical detractors. IT

Notwithstanding the success of many critical challenges to Dworkin's work, 1 the most unrelenting and unmitigated campaign against him has been waged by the so-called 'Critical Legal Scholars'. Put crudely, the main thrust of the Critical attack has been to follow through on the realist project and ally it to a programme of leftist radical politics. The major unifying feature of this eclectic group is its opposition to the intellectual and political dominance of the liberal establishment. As such, the group contains many differ­ ent strands and its members run from the militant marxist through the disaffected liberal and radical feminist to the utopian anarchist. Many of their conclusions are far from novel or surprising, 2 but 1. For a collection of the leading critiques, see Cohen (1 983). 2. The works of F. Cohen (1935) and ] . Shklar (1964) are obvious examples. For

49

Allan C. Hutchinson they do provide the most sustained and serious attempt to date by the Left to expose the political dimensions of the adjudicative and legal process. Their major contribution has been to explain and criticise the operation oflaw as ideology. Moreover, they recognise themselves as a political movement, unlike the realists who were mainly liberals themselves. Operating from a clear and radical political base, the Critical Legal Scholars charge that the attempts to demonstrate how judicial power is objectively bounded and democratically justified are iU­ advised and futile. Legal doctrine is riddled with indeterminacy and adjudication is essentially a process of choice. By attempting to mask this fact with increasingly sophisticated theories, jurists serve an important political function and number among those 'who, attributing universality and cosmic rightness to their own views, put them forward as the teaching of Science, History or The Law' (Noonan 1 976:viii-ix) . 3 Contemporary society is characterised by disparity and domina­ tion. Prevailing social arrangements are merely temporary respites in the constant struggle between different factions in society. The enterprises of adjudication and legal scholarship merely serve to clothe this political organization with the essential garments of political legitimacy. Judges and scholars enable society to convince people that its present organization is not only rational and just, but necessary and inevitable. The construction of elaborate schemes and entitlements from available materials helps to justify the status quo and direct formidable barriers to social change (Gordon 1987) . By pretending that legal outcomes are the product of an apolitical and neutral algorithm rather than the imposed preferences of an elite hierarchy, the rule of law manages to transform the jungle of social order into a world of legal right. Legal thought helps to suppress the horrible conditions of social life and offers itself as a timeless way of understanding and conquering the world. The esoteric and convoluted nature of legal discourse is the direct consequence of the need to obscure and mystify judicial choice. The evolution of legal doctrine is best understood as an endless general introductions to CLS's background and approach. see M. Kelman (1987) and A. Hutchinson (1 988). 3. This criticism has been made by other critics - see Levinson (1978) and Pangle (1978:160) .

50

The Last Emperor? series of fragile and makeshift compromises. At bottom, legal dis­ course is nothing more than a stylized version of political discourse. This crude statement of the main arguments of the Critical Legal Scholars does not of itself dispense with Dworkin's thesis. It is necessary to develop a more detailed and subtle response to Dworkin's particular claims. The 'indeterminacy' thesis can best be explicated in relation to a particular area of legal doctrine. Some of Dworkin's favourite examples come from the area of tort law and this seems as good an area as any in which to weigh the competing claims of Ronald Dworkin and the Critical Legal Scholars. Indeed, the seminal judgment of Cardozo in MacPherson v. Buick4 is a favourite of Dworkin's. This is itself rather surprising since it is held out by many as being an excellent example of judicial creativity. The tort doctrine of remoteness of damage serves as an appropri­ ate testing ground. The central question to be answered is: in what circumstances will a negligent defendant be liable for the injuries of the plaintiff? The solution of the courts has been ambivalent. There are two principles competing for attention. The currently favoured principle is admittedly individualistic. A tort-feasor's liability must be limited so as to provide some rough correlation between the degree of fault and the extent of responsibility. Accordingly, flow­ ing from the central notion of fault, a defendant is only liable for damage that is reasonably foreseeable (Fleming 1983: 1 70-302). To do otherwise would obliterate any actual opportunity for auton­ omous action. Any more onerous rule might prevent people from engaging in many kinds of future activity with its threat of high awards disproportionate to the initial lapse. However, an exclusive reliance on such a principle might deprive entirely innocent and worthy victims of compensation. Consequently, there is a com­ peting, less dominant, but established counterprinciple. This stipulates that tort-feasors are liable for any direct consequences of their actions, notwithstanding that they might not be reasonably foreseeable. 5 Although this principle flourished and dominated for a time, it presently enjoys a more limited range of application in cases where victims, such as hemophiliacs, are particularly suscep­ tible to injury; 'a tort-feasor must take his victim as he finds him. ,6 4. 217 N.Y. 382 (1916). 5. The Wagon Mound (No. 1 .), [1961] A . C. 388. 6. Dulieu v . White, [1901] 2 K.B. 669, 679 per Kennedy J . ; and Dworkin 1985a:184.

51

Allan C. Hutchinson At first glance, this area of tort doctrine might not seem to present difficulty for Dworkin. But, once it is remembered that 'fit' is only a threshold requirement and that it is possible for an imaginative judge, like Cardozo in MacPherson v. Buick, to make 'an interpretation that has occurred to no one else', the choice must be made at the level of 'substantive justice' alone. Yet a resolution is unlikely between the 'reasonable foreseeability' principle and the 'direct consequence' counterprinciple under his favoured, but con­ cededly 'very abstract' standard of equal concern and respect (Dworkin 1985a: 1 85). Moreover, his insistence that any solution must be consistent with the dictates of democratic governance is of little assistance. The remoteness doctrine is animated by a deep logic of contra­ dictory arguments and visions. Each principle derives from and is empowered by two entirely different visions of accident compen­ sation and, more generally, justice in a democratic society (Ken­ nedy 1976: 1 685) . One draws on the tortious notion that 'it is unfair to impose liability where there has been no wrongdoing'; it favours private choice and prefers to confine liability to occasions of con­ tractual privity. It rests on an individualism that represents a world consisting of independent and self-sufficient persons, confidently drawing up and robustly pursuing their own life plans . Values and tastes are relative and subj ective. The legal regime is committed to protecting private property, enforcing bargains and creating auton­ omous spheres of activity. The other vision is informed by the tortious notion that 'as between two blameless individuals, the one who caused the damage should pay'; it is motivated by a concern for greater public control and communal responsibility. This flows from a collectivism that views the world as made up of interdepen­ dent and cooperating persons . Recognising the vulnerability of individuals, it encourages greater solidarity and altruism. There exists a belief in the possibility of communal values and the capacity to know a common good that cannot be known alone. The legal regime contributes to such a world by dismantling private prop­ erty, regulating the distribution of resources and promoting inter­ active proj ects. Each vision represents only a partial and incomplete depiction of social life and its possibilities. For present purposes, the solution preferred by the Critical Legal Scholars is immaterial. They simply seek to demonstrate that a choice of either principle is fully justified as a matter of 'fit' and 52

The Last Emperor? 'substantive justice'. Neither principle necessarily flows from a belief that 'each be morally free to make some decisions answerable only to our own particular conceptions of the best lives for us to lead, to our own aims and projects, our own developed attach­ ments and concerns' (Dworkin 1978: 266) . It is likely that Dworkin would opt for the individualist principle of 'reasonable foresee­ ability', but he cannot claim that it offers a better justification in any theoretical or reflective sense than the principle of 'direct consequence'. Whichever principle Dworkin opts for is simply his preference. Once that choice is made, Dworkin has nothing to say by way of persuasion to anyone who disagrees with him. He translates his sectarian preferences into a universal truth; 'the status of the bour­ geoisie is particular, historical; man as represented by it is universal, eternal' (Barthes 1972: 141). Dworkin's response to this criticism is unpersuasive and seems to concede the point rather than refute it: [T]he confident assignment of the two principles to two contradictory 'visions' of society is procrustean and groundless. These principles are inevitably part of any decent response to the world's complexity. They differ only in their distribution of the risk of loss between two actors . . . and it is implau sible to suppose that someone who makes that choice differently in different kinds of circumstances . . . is for that reason morally schizophrenic. The problem for Hercules, faced with the set of decisions this critic describes is . . . pedestrian. He constructs two principles: that people should not be held responsible for causing injury they could not reasonably foresee and that people should not be put at disadvantage . . . in virtue of physical disabilities beyond their control. He has no difficulty in recognizing both at work in the law of tort and more generally, and no difficulty in accepting both at the level of abstract principle. These principles are sometimes competitive, but they are not contradictory. He asks whether past decisions in cases in which they do not conflict have resolved them coherently. Perhaps they have, though whatever account he accepts of that resolution will probably require him to treat some past decisions . . . as mistakes . . . . Then he must ask . . . whether one of the choices the system might make . . . is superior in personal and political morality, and though others would decide differently, that in itself is no objection to his choice. (1 986:443-44)

This is pure Dworkin: it is an emblematic passage that is larded with his characteristic circumlocutions and subtle evasions. Of 53

Allan C. Hutchinson course, judges who make ' choice[s] differently in different kinds of circumstances' are not necessarily 'morally schizophrenic'. How­ ever, they will soon become so, if there is not available a discover­ able meta principle of difference - as there is not - that is able to identify one kind of circumstance from another. Similarly, he begs the very questions that are to be answered; namely, that principles are 'competitive' rather than 'contradictory' and that 'mistakes' can be isolated in a noncontroversial manner. Further, as is usual he closes with the concession that it will come down to the judges' assessment of 'which is superior in personal and political morality '. All of this adds up to very little by way of critical response. But perhaps the most revealing and typical aspect of Dworkin's retort is its ahistorical and non-substantive character. There is no attempt to engage in the doctrinal trenches and to show how his interpretive method might work out at anything other than 'the level of abstract principle'. An evenhanded study of accident law shows that judicial method is a defective product (Steiner 1987) .7 The common law has moved from one doctrinal peak to another through the misty vales of fiction. Contrary to what Dworkin wants to believe, principled integrity has not been the guide, but the contingent choices of the judicial personnel.

III

Throughout his writings, Dworkin forgets that meaning is not a source of agreement, but a function of it. For there to be meaning, there must already exist a shared sense of justice. Without such a consensus, legal interpretation remains either an act of faith or an exercise of power and no amount of intellectual anguish will wish that fact away (Fiss 1982). A Dworkinian brand of liberal legalism is of no help in this regard. Indeed, the epistemological foundations of the liberal tradition make a valid theory of legal interpretation necessary, but render its successful discovery or establishment impossible (Tushnet 1 988) . This failing is underlined in Dworkin's discussion of patently unjust laws. The central question is whether 7. A benchmark of Critical scholarship is its general tendency to offer richly detailed accounts of doctrinal development. For a sample of this work, see Hutchin­ son (1 988).

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The Last Emperor? wicked legal systems generate legal rights and whether judges must enforce such rights . Did slave owners have the right to the return of their escaped slaves? Did a judge have to confiscate the property of Jews at the request of Aryans? Dworkin is sorely troubled by these cases; not simply because he fmds them intolerable, but because legal integrity seems to warrant their answer in the affirmative. A good faith reading of the relevant legal materials points to the existence of such rights . Undaunted, Dworkin offers a distinction that is intended to finesse this ignom­ inious outcome: A full political theory of law . . . includes at least two main parts; it speaks to both the grounds of law - circumstances in which particular propositions of law should be taken to be sound or true - and to the force oflaw - the relative power of any true proposition oflaw to justify coercion in different sorts of exceptional circumstance. . . . If a judge's own sense of justice condemned [the grounds of law] as deeply immoral . . . , he would have to consider whether he should actually enforce it . . . , or whether he should lie and say that this was not the law after all, or does not necessarily have the last word about how the coercive power of the state should be used. But it does have the fIrst word, and normally there is nothing to add to what it says. (Dworkin 1986: 1 10--1 1 and 219)

Yet, Dworkin has bought this victory at too high a price. Shaved so thin, legal integrity will be of little use in future skirmishes. The judge's own sense ofjustice' is regnant. This means that judges are unconstrained by past judicial and legislative decisions if they consider them sufficiently wicked. But wickedness is a notoriously contested concept; one judge's iniquity is another's equity. In circumstances that are not 'exceptional', the primacy of the judge's conscience is not fatal because 'the principle of integrity' will provide the necessary institutional constraint. But, in 'exceptional circumstances ', the judge's 'own sense ofjustice' will be irresistibly paramount. Indeed, contrary to Dworkin's later statements, the dreaded Marxist or fascist (or feminist or Crit or whoever) would 'qualify for the [jurisprudential] contest' (Dworkin 1986:408). Fur­ thermore, the threshold requirement of 'exceptional circumstances' operates as no check at all, as it would be logically impossible to ask 'the principle of integrity' to determine the conditions of its own applicability. Accordingly , on a showing of wickedness, a j udge is 55

Allan C. Hutchinson free to 'lie', 'resign', or 'refuse to enforce the law': this is a profoundly disturbing conclusion for someone devoted to justify­ ing the legitimacy and moral force of the judicial enterprise. The law of torts provides a more mundane, but equally com­ pelling example of this failing (Dworkin 1986:23-29, 240-50 and 268-71). Suppose a judge believed that any system that did not provide full compensation for all victims of misfortune in all circumstances was wicked because failing to compensate would be to treat people's lives as mere commodities to be traded in the market of accidents. Or imagine a judge who believed that no one should ever be required to compensate another for injury unless it was deliberately caused because to do otherwise would be to curtail people's liberty. In his 'morally pluralistic society' (1986:21 3) Dworkin has little comeback against such judges. He must rely on the fact that 'legal argument takes place on a plateau of rough consensus' (1986 : 108-09) . When that fragile consensus breaks down, Law's Empire will begin to crumble. It is on such occasions that the imperial foundations of Dworkin's theorising, supposedly formed from the hard rock of principle, will be revealed to rest upon the shifting sands of ideological consensus. D workin's complacency about that consensus is born of a splendid isolation from popular movements. He depends on the moral inertia of the undifferentiated political centre and the tyranny of the familiar; 'no one really thinks the law wicked or its authors tyrants' (Dworkin 1 986: 1 1 1 ) . Sez who? Has Dworkin spoken to many women, gays, blacks, or Indians recently? Law's Empire deals with the deprived and disadvantaged in society by simply pretending that they do not exist Qu'ils mangent de la brioche. -

IV

In itself, the indeterminacy critique might be passed over as no­ thing more than a skillful reworking of the realist project, dressed in fancy intellectual garb. In some ways it is, but this does not necessarily enfeeble it. However, the indeterminacy critique is more the fll'st part of the critical assault. The second part centers directly on the ideological component of Dworkin's work. This criticism relieves Dworkin of any obligation to live up to his ambition ofjudicial objectivity, however bounded or minimal, and 56

The Last Emperor? tackles the vaunted justice of his liberal theory of political equality. The basic Critical tactic is to demonstrate that whatever the aes­ thetic or intellectual claim of his political theory, it lacks any adequate social theory. As such, it must be dismissed as, at best, irrelevant and, at worst, dangerous. The Dworkinian world consists of individuals, armed with rights against each other and the community at large, pursuing their own freely created life plans and projects in a world of equal opportunity. Of course, Dworkin does not pretend that we live in such a 'desirable' state. To his credit, he has no truck with Reaga­ nite conservatism and is committed to cleansing society of such excesses. He is, after all, a welfare liberal (Dworkin 1985a: 181). Yet he does remain committed to the fundamental structure of a market based society. A good society is one that facilitates the pursuit of any common good or the establishment of shared values. Indeed, he accepts that 'a society devoted to [the rights thesis) may pay a price . . . in the communitarian spirit that too much concern with law is supposed to cripple' (1985a:286-87) . At bottom, Dworkin is happy with the status quo, suitably and cosmetically reformed. He subscribes to its belief in personal fulfillment and individual freedom. The obj ection to this strain of liberal theorising is twofold. 8 First, the Dworkinian theory of rights encourages people to see others as resources to be used in achieving their own ends. It alienates people from each other and prevents the establishment of a true spirit of sharing and friendship. Moreover, people begin to think of the possession of rights as some actual gain in real terms; rights are viewed as having a 'reified' life of their own (Gabel 1980) . 9 The struggle to obtain and possess a series of rights is viewed as an end in itself. This romanticises politics. Equality and liberty are a mask for anxious privatism and practical domination. As people come together in ever closer physical proximity, they seem to live in ever greater moral isolation (Gabel 1977). Second, the particular set of rights on offer is almost completely formal and processual in nature. There are no concrete or substan­ tive rights. While the legal materials paint a picture of formal

8. For a fuller account of this 'critique of rights', see Hutchinson and Monahan (1984). 9. See Gabel, 'Reiflcation in Legal Reasoning' (1980), 3 Res. In Law & Soc'y 25.

57

Allan C. Hutchinson equality and j ustice, society is characterised by substantive in­ equality and inj ustice. Political and civil rights dominate; social and economic rights have been largely ignored. to Indeed, some liberal scholars go so far as to suggest that the establishment of any social-economic rights might 'press [the j udiciary's] institutional capacity . . . past the breaking point' (Perry 1 981 : 161). Yet the formulation of a scheme of political-civil rights, however sophisti­ cated, is meaningless and useless without the economic ability to take equal advantage of them. The preoccupation with formal rights draws attention away from and, in a broad sense, legitimates the pervasive substantive inequality in modern life . There i s a massive discrepancy between the world a s imagined and depicted by lawyers and the actual conditions of social life. Legal discourse is a form of political practice that obscures that existential dissonance. This nai'vete is evidenced by Dworkin's belief that the courts can act as the crucial public institutional forum in which a community can meet 'the challenge of making the standards that govern our collective life articulate, coherent and effective' (1985a: 187) . Yet there is ample evidence to demonstrate that this is nothing more than a ritualistic reaffIrmation of our vague commitment to justice and fairness. Judicial conversation is an elite ceremony, administered and controlled by the initiated few . Legal change does not amount to social change (Hutchinson 1987) . Canada's experience with the introduction of the Charter of Rights illustrates this weakness (Hutchinson 1988:223-46) . Estab­ lished through a profoundly undemocratic process, it is hailed as a watershed in the life of each and every Canadian. With the strength of the Charter around them, Canadians are now said to be fuller and freer individuals. But the actual impact on the quality and standard of life is marginal and peripheral. It has had no effect upon the vast disparity of wealth and power within our society . And changes are merely rhetorical. Its greatest impact has been to change the culture oflegal and political argument. 1 1 Where was the Charter when B . C. workers were being arbitrarily dismissed from their government posts? What help has the Charter been to the record number of homeless on the streets of our large cities? What 10. For a liberal exception, see Michelman (1979) . 1 1 . This is not to underestimate this development, merely to place it in perspec­ tive; see J. White (1 984).

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The

Last

Emperor?

assistance has the Charter offered to the millions who are unem­ ployed and socially frustrated? Valuable energy and attention will not be defected into Charter arguments and litigation. It is theorists like Dworkin who must shoulder some of the responsibility and blame for this state of affairs. v

Although liberalism remains the ruling legal and political theory, it is presently under heavy fire from communitarians. 12 They are challenging liberals at all levels - metaphysical, ontological, nor­ mative and practical - of inquiry and justification. They combine to rej ect the core values and assumptions of the liberal credo. In particular, the communitarian critique focuses on some of the mainstays of the Dworkinian project, such as the primacy of private values over public virtues, the celebration of the indepen­ dent individual as the source and standard of normative worth, and the collectivity's neutrality between competing conceptions of the Good (Dworkin 1985a:181). By contrast to liberals, communi­ tarians emphasise civic virtue over universal rights, situated citizens over abstract individuals, and public connectedness over personal autonomy . They do not seek to reconcile the different interests of private persons, but to transcend them in the search for a common ground and civic unity through a virtuous public life . Self-interest is juxtaposed to communal virtue and the locus of moral authority moves from the subjective life to the republican polity itself; the modernist individual is replaced by the mature citizen. Instead of collapsing the barrier between public and private life, the public sphere becomes the nursery for private action and responsibility. Until the publication of Law's Empire, Dworkin had been fairly open about the individualistic foundations of his work. Indeed, he was a leader in the liberal establishment. He conceded that 'a society devoted to [his liberal vision of law and justice] may pay a price . . . in the communitarian spirit that too much concern with law is supposed to cripple' (1985a:32) . Yet he now seems to have

12. The leading salvoes in this attack have come from Sandel (1982) and Mac­ Intyre (1981).

59

AI/an C. Hutchinson some second thoughts about the value and need for this 'com­ munitarian spirit'. He presents Law's Empire as the epitome of the political community in which moral legitimacy is not secured through social contracting, but is anchored in 'fraternity, com­ munity and their attendant obligations' (Dworkin 1986:206) . Held together by an organic bond that goes beyond bare similarity of interest, imperial subjects must recognise the existence and force of group obligations for mutual well-being. Members of a genuine political community are governed by a common set of principles that are constitutive of social justice (1986:21 1). Although Dwork­ in's suggestion holds superficial appeal, it is a flawed attempt to use communitarian rhetoric in the service of liberal ideals; the packing may change, but the package remains the same. Dworkin's 'com­ munity of principle' fails as a descriptive account of political reality and as a prescriptive proposal for political action. While many think of the U . S . A. as becoming ever more the U nited States of Anomie, Dworkin gazes upon it and represents it as a United States of Association. Where others see despair and isolation in American political and social life, Dworkin sees an enviable community of personal contentment and social solidarity . It is no small achievement that Dworkin manages to effect a spiritual aestheticism in a world of moral asceticism. Indeed, Law's Empire is portrayed as a civic community of fraternal responsi­ bility, a moral agency of principled proportions. Bonded together by the political virtue of integrity, Law's Empire is .'a special form of community, special in a way that promotes its moral authority to assume and deploy a monopoly of coercive force' (Dworkin 1986 : 1 88) . Yet, no matter how lyrical or rhapsodic the quality of Dworkin's political cinematography, it is simply impossible to ignore experience sufficiently to give credence to this fraternal imagery. As Dworkin says of other communal tropes, it 'rings hollow as an expression of fraternity' (1986:212) . The fraternal essence o f Law's Empire is the existence of associ­ ative obligations. 'Bare' geographic or genetic communities can become 'true' communities if they meet the institutional and per­ sonal conditions of equal concern for each individual. In a style redolent with MacIntyrean motifs, 13 Dworkin blends traditional

13. See note 12.

60

The Last Emperor? social practices with principles of justice to establish a just com­ munity. However, even Dworkin's 'true' community is a pale and anemic shadow of its full-blooded ideal. It is little more than an aggregate of self-interested individuals who band together to fa­ cilitate the pursuit of their own life projects - a relation of strategic convenience and opportunism rather than mutual commitment and support. Stripped of its solidaristic rhetoric, it amounts to the very Lockean social contract of the conditional kind that Dworkin is at pains to discredit and disclaim. People are bound in associative arrangements that are ' contingent on reciprocity' (1986: 198) . I need only count others as friends if and so long as they extend the same concern to me. Moreover, I am morally free to act as I choose so long as I do not interfere with others' similar rights; I need only consider others' interests when our rights compete or our projects overlap. Indeed, Dworkin's metric of comparative financial harm ­ I should forgo my plans when the amount others would be pre­ pared to pay me not to continue would be greater than that I am prepared to pay others not to continue with theirs - is premised on exactly the kind of moral accounting that communal aspirations, if they are to be meaningful, must aim to resist: 'If I forgo an opportunity in one case, because the relative loss to you would be greater, this should be entered to my credit in a moral ledger against the next decision I (or you) have to make' (1986:306) . This moral discourse of costs and benefits is surely anathema to the citizen committed to the community. It is the language of economic transactions and not of personal relations; it makes morality into a matter of quantitative dealings and not qualitative experiences. While commercial dealing is likely to feature in any possible social world and political regime, it ought not to become the organising metaphor for life in general. 'Moral ledger' thinking reveals an ethical bankruptcy that must be compensated for and not embraced by a communal mode of social life; the standard of a community's moral well-being is not measured by its balance of moral trade. In the 'bare' community of moral ledgers, any possi­ bility of nurturing warm habits of the heart is lost in the cool calculations of the head. Moral accounting is the language of impoverishment and not empowerment. Within Law's Empire, communal and interpersonal relations are haunted by Emerson's chilling protest; 'Then, again, do not tell me, as a good man did to-day, of my obligation to put all poor men in good situations. 61

Allan C. Hutchinson Are they my poor?' (Emerson 1983:262) . Not only does Law's Empire transact in a devalued moral coin­ age, but it is also profoundly elitist and undemocratic. Under the ostensibly liberating tutelage of principle, there functions a subtle regime of oppression. Despite paying lip service to 'a theater of debate' (1986:21 1) Law's Empire is about accepting and assuming political obligations and not about participating in the making of them. Rationality and expertise are the political order of the day. Imperial citizenship is about 'fidelity to a scheme of principle each citizen has a responsibility to identify' and 'sensing and exploring what these principles require' (1986: 1 90, 1 88) . This, of course, should come as no surprise, for empires are not known for their popularist concerns and participatory initiatives. In Law's Empire, judges have been elevated to the rank of moral prophets and philosopher monarchs. For citizens, politics has become a spectator sport. Yet, philosophy has no monopoly on truth and justice; its privilege is contrived and invalid. Our images ofjustice should not be the philosopher's gift, but should be produced through the sweat of our democratic brows. In that way, they are likely to be valued more. Law's Empire is an unadulterated form of oligarchic politics. Its stunted character of public discourse confirms Rousseau's dictum that without robust debate and active citizens, there is nothing but debased slaves from the judicial and j uristic rulers on down (Rous­ seau 1 950). A community worthy of its name is not based on a set of abstract commitments to universal principles, but is grounded in the experience of interpersonal relations and its ties. It is more of an emotional and shared existence than a disembodied and cognitive enterprise of rule by j udicial proconsuls. Abstract knowledge is second or third-hand; the abstract gossip of philosophical experts is no substitute for the engaged conversation of ordinary citizens. Principled discourse represents one small part of the dramatic dialogue that composes communal life and politics. Individuals are products of their social contexts, not ahistorical entities of given preferences. As such, people must be encouraged to participate in and revise the social context through which their preferences are cultivated and questioned. As Richard Rorty so wonderfully put it, 'persons have dignity not as internal luminescences, but because they share in contrast-effects' (Rorty 1985:218). Politics is legit­ imated by participation and not principle. 62

The Last Emperor? The oppression and transparency of Dworkin's conception of community is beautifully captured in the plaintive scenes between father and daughter: 'Does a daughter have an obligation to defer to her father's wishes in cultures that give parents power to choose spouses for daughters but not their sons?' (1 986:204) . In a few short frames, Dworkin inadvertently captures the oppressive power relations that characterize Law's Empire; the familial setting is the wider political environment writ small, the private is the public. Assuming that in such cultures it is possible that 'women are as important as men' (1986:205), Dworkin explores whether such an 'isolated' act of paternalism can place strong obligations on a daughter. Dworkin concludes that in such circumstances, 'a daughter who marries against her father's wishes . . . has some­ thing to regret. She owes him at least an accounting, and perhaps an apology, and should in other ways strive to continue her standing as a member of the community she otherwise has a duty to honor' (1 986:205) . Surely little needs to be said about the powerful and destructive dynamic at work; it is oppression of women masquerading as traditional honor. What does her father owe­ her? How is he treating her as an equal? While duty and obligation are necessary and desirable, they must be assumed through mutual connections and not imposed in the name of principle. Yet, despite its offensiveness, this familial cameo is not aber­ rational. In Law's Empire, political life is organised as grand national seminar. Evoking traditional jurisprudential symbolism a la Rostow (1952:208), Dworkin casts judges as republican school­ masters. Deciding upon the agenda and appropriate principles of justice in the cloistered atmosphere of the faculty common room, they transmit these values to the masses. Education becomes an alienating exercise in the rote learning of principles and values; any attempt to encourage participation in or questioning of the for­ mation or wisdom of these values is deplored. Education becomes the heart and muscle of social control and imperial conformity. The cult of the teacher/father figure serves to foster an inegalitarian sense of cognitive and moral superiority. This is not the stuff of the civic good life, but the hierarchical caste of empire. In a true community, all imperial trappings would be banished. Political knowledge would become a matter of practical, popular and inter­ relational judgment that works to recast the world in its own developing and experimental image. Dworkinian philosophers 63

Allan C. Hutchinson would be exiled, for '[g]enuine philosophers are . . . commanders and legislators: they say, " thus it shall be. (Nietzsche 1973:21 1 ) . Democracy abhors such politics.

VI

Of course, Dworkin rej ects the charge that his theory is undemo­ cratic or antidemocratic. He maintains that there is no necessary tension between judicial activism and democratic decisionmaking; law as integrity has an important role to play in modifying the excesses of modern elitist politics. 14 Dworkin does not deny that the democratic community has the right to be wrong. He simply contends that this prerogative exists within a closely circumscribed sphere. If the democratic community s trays outside its appointed domain and trespasses onto prohibited turf, the appropriate response is self-evident - like antibodies attacking a foreign substance, the judiciary should move swiftly to excise the offending contagion before it spreads uncontrollably throughout the body politic. Of course, the perennial difficulty is to defme the alleged bound­ aries of democratic politics. Contemporary political philosophers, like Dworkin, claim to have noticed these boundaries lurking in the interstices of Kantian moral theory. The argument runs a typical course. Individuals are entitled to be treated as ends in themselves, rather than as a means to someone else's ends. In order to give effect to this background political ideal, it is necessary to specify the conditions under which each individual's qualities of moral agency and personality are recognised. These political conditions form a coherent whole. They can be expressed in the form of a series of entitlements or rights which must be respected by the community if it is to be true to the notion of individual autonomy. A com­ munity cannot be said to bejust or rightly ordered until and unless it recognises and guarantees these individual rights. Such a schema represents the fixed fulcrum around which democratic politics must swing. Although this rights theory purports to leave basic democratic principles intact, it frustrates and paralyses them. This results as 1 4. For an extended discussion of the relation between democracy and liberal legalism. see Hutchinson and Monahan (1987:97) .

64

The Last Emperor? much from what is excluded as from what is included in the theory. Significantly, such a rights based conception of law and adjudi­ cation has an impoverished or nonexistent conception of com­ munal politics. There is very little respect and a good deal of anxiety surrounding attempts on the part of the community to define its group identity. For the rights theorist, wherever collec­ tivities gather together to express their moral beliefs in law, there lurks the stale but unmistakable whiff of totalitarianism on the political breeze. Questions of morality and values are considered to be inescapably relative. Such matters of taste must be left in the · hands of individuals, freed fro m the tyranny of the opinions of others regarding their life-styles. Dworkin's constitutional analysis exemplifies this impoverished conception of community with its corresponding emphasis on the privatization of morality (Dworkin 1 978) . His analysis is premised on the notion that everyone has the right to be treated with equal concern and respect. This conCern for equality is violated when the community allows a 'corrupting' element to contaminate its calcu­ lation of general welfare. The corrupting element can be identified on the basis of a distinction between personal and external prefer­ enCeS. Individuals' personal preferences relate to the assignment of goods or advantages to themselves, while external preferences relate to the assignment of goods or advantages to others. Accord­ ing to Dworkin, a utilitarianism that counts both personal and external preferences is vulgar and corrupt. External preferences do not respect the right of everyone to be treated with equal concern and respect; they suppose that a particular form of the ' good' life or community is more valuable than any other. For instance, to take one of Dworkin's examples, if there is a proposal to build a swimming pool, only the votes of those who want to use the pool may properly be counted in its favour. Nonswimmers who might support the construction of the pool because they wish to promote the activity of swimming should be ignored. This is because the nonswimmers are suggesting that a certain life-style or activity is inherently more valuable than another. Far from purifying utilitarian discourse, Dworkin's proposal debases it. In the guise of offering a style of political discourse that is neutral and egalitarian, Dworkin has simply ordained that only certain values or ideals may be tolerated in political debate and argument. The accepted idiolect is that employed by individuals 65

Allan C. Hutchinson bargaining in their own self-interest. They are entitled to be heard only if they frame their claims in terms of what they hope to gain personally from a decision. Any appeal to the values or interests of the community as a whole is corrupting. While Dworkin's view concludes that the invocation of public as opposed to private considerations is a violation of the norm of equal concern and respect, it results in a public morality that is the aggregation of particular vested interests. D workin exhibits a profound antipathy for common conscious­ ness among citizens. Politics becomes nothing more than a lackey for private interest. Pluralism and relativism are constitutionally mandated because there can be no genuine public interests. The result is an aggregate of individuals secure in their abstract rights and liberties but divorced from each other. This, of course, is entirely predictable given the background theory of personality which underlies contemporary liberal accounts of politics. The common starting point of these accounts is a fictitious choosing self, stripped of almost all its particularity. This abstract self be­ longs to no particular family or community, has no set of al­ legiances or commitments and possesses no substantive life plan. Although liberalism fetes the individual and celebrates personal freedom, it recommends a set of social organising principles that rests on a pessimistic notion of human personality. By depicting individuals as indifferent to others, it establishes an ephemeral life-style that stifles the ameliorating potential in them and surren­ ders political reform to the limiting vision of the self-absorbed. In a liberal regime, individuals becomes exiles in their own society, only united in their separateness and self-interestedness. The domi­ nant motif of liberal society is its tendency to anomie; individuals drift with no communal connections. The difficulty with this individualistic ideology is that it ignores and suppresses actual human experience (Hutchinson and Monahan 1984: 1 534-37) . Individuals are located in history, within a context of allegiances. They are not abstract or bloodless, but are in part constituted by their social context. To divorce individuals from this structure of allegiances is to rob them of the 'railings to which [individuals 1 can cling as they walk into the mist of their social lives' (Dahrendorf 1979:32) . A Dworkinian form of politics stunts the possibility of developing a set of shared ends and values, a precondition to the emergence of a genuine populist democratic 66

The Last Emperor? practice. By developing a moral sense and practical experience of community, individuals will be better able to contribute to the growth of a shared set of values and institutions in accordance with which social life could be organised. Persons might come to be respected as themselves and not as simply rightholders. In this way, society could develop a modus vivendi that encourages caring and sharing and actualises the possibility for meaningful connection with others. Nevertheless, hostility to liberal individualism ought not to lead to an unthinking rush into the arms of communitarianism. There are very real problems with how the shared norms of civic virtue can operate as principles of inclusion and exclusion. The search for community overwhelms difference in its dangerous drive toward uniformity . By reducing everything and everyone to a lowest common denominator, communalism includes by exclusion and achieves shared values at the expense of diversity: what is 'inside' is implicated in that it places 'outside' . What seems to be envisaged is a Salem without the witches, the Ku Klux Klan without its racism or a Moral Maj ority without its bigotry; that is, much wishful thinking and no cause for realistic confidence. Like so much intellectual debate, the liberals' and communi­ tarians' disagreement is impoverished because they trap themselves in an either/or dilemma, a choice between an oversocialised fate or a splendid anomie. Any meaningful reconstruction of political morality must go beyond the personal indifference of liberal poli­ tics, but not as far as the public saturation of communitarianism. In the former, freedom is the freedom to be a conscript in a continual state of social war. In the latter, virtue becomes an enforced solidarity in which failure to identify completely with others is an act of civic treason; you are with the community or against it. Both possibilities traduce any realistic achievement of 'love'. Whereas one reduces it to the by-product of transactions in the market economy of anomic morality, the other devalues it by obliging us to treat strangers as intimates and intimates as strangers. Liberalism downplays those aspects of human experience that communi­ tarianism treats as central and vice versa. Any genuine alternative of political thinking and practice must recognise that social life 'con­ sists of connectedness and autonomy, love and hate, toleration of others and anger at their differences from an everchanging "us'" (Tushnet 1 988:318) . 67

Allan C. Hutchinson A further and more deep-seated difficulty is that, although the notions of 'individual' and 'community' stand in supposed oppo­ sition, they are interdependent and mutually reinforcing; they exist as the mirror-image and condition of the other. Each uses the perceived threat of the other to ensure its own unity. Both theories resort to the flawed 'metaphysics of presence'. Whereas individual­ ism denies difference by implying the sameness of all, communi­ tarianism denies sameness by implying the difference of all. 15 Each is part of, not an alternative to, contemporary political theory and practice. The obvious challenge is to break out of this either/or neither/nor dialectic and to conceive of the multidimensional re­ lations between subject and structure in different terms. By decon­ structing the morphology of social thinking, it might be possible to reconstruct social relations. One reconstructive possibility is to explore the neglected spaces of intersubjective relations. By thinking about and understanding our personal and social lives as complex and overlapping accumu­ lations of such relations, political theory and practice can cut across the traditional organising dichotomies; it can borrow and combine innovatively much from each without succumbing to the excesses and sterile options of either. An acceptance of intersubjectivity helps us to come to terms with our vulnerability to and dependence on others as well as our commitment to and responsibility for o thers. It allows us to reach flexible and contingent balances of negative and positive liberty, a freedomJrom and a freedom to. In the current search for absolutes, we deny our finitude and, there­ fore, our humanity. We overlook what we can discover in the hopeless search for what we can never find: 'by corning to terms with our fmitude, we gain the humility necessary to overcome the hubris of individualism' (Cornell 1 985:338) . 1 6 By viewing the individual self as constituted in and through its intersubjective connections, the notions of autonomy and solidarity can be better and differently understood: criticism and commitment, innovation and connection can be mutually supported. Intersubjectivity is not a novel state of affairs to be exalted, but is 1 5 . For a fuller discussion, see Hutchinson (1989:281-87) and Young (1986) . 16. The following pages owe a great deal to Cornell's excellent article (1985). It is a Hegelian-inspired attempt to show how 'dialogism can serve as a powerful regulative ideal' in the development of an ethic for political practice.

68

The Last Emperor? a standard feature of human history that has always been under our noses, if we only bothered to lower our gaze from the enticing horizons of absolutes that seems daily in sight, but forever out of reach. In this shift in focus from the identity between self and other to their relational context, the work of feminist writers is especially insightful and important. Feminism is the cutting edge of social theory and change; it offers itself as a revolutionary alternative to contemporary practice and ideas. Although there are many shades of opinion in the feminist movement, there exists the basic decon­ structive belief that knowledge and gender are not mutually ex­ clusive categories; metaphysical commitments operate to conceal the manmade and man-serving construction of reality by making women's experience and standpoint invisible or trivial. At the top of the feminist agenda is the need to rethink and rework not only the human drama, but the way we think about the idea and experience of what is and can be the human drama. As well as multiplying the number of female actors and authors, the drama and performance themselves must be made on wider, more popular fronts and by virtue of a different ethic and voice. At the heart of this enterprise is the understanding that self-definition is a function of intersubj ective experience; it is the relation and not the relating entities that should be protected and nutured. As Carol Gilligan puts it, 'a world comprised of relationships rather than of people standing alone, a world that coheres through human connection' (Gilligan 1 982:29) .

VII

A genuine commitment to an unadulterated democratic practice will represent the most powerful institutional complement to inter­ subjectivity. Participatory politics is regenerative, experiential and empowering. Instead of giving ontological priority to individual interest, participatory democracy enables people to appreciate and rework the profound and sensitive dialectical tension between self and others; it enhances the opportunities for the continuous nego­ tiation of the multiple interplay between the unique and the indi­ vidual, and the common and the communal. It is an engaged, not an abstract, rapprochment between particular and general concerns; it looks to the relation as much as the relators. In this way, 69

Allan C. Hutchinson democratic arrangements also meet the challenge of historical con­ tingency. They respect its imperative, but do not become enslaved to it: the possibility and importance of normative discourse are retained and invigorated. 17 The stakes will be high in any attempt to revise radically the terms and conditions of our collective and individual lives. And there will be no guarantees. But participatory democracy offers a chance that its stunted contemporary articulation in Dworkin's liberal legalism can never imagine or realise. Of course, the play­ ground of jurisprudence is only one venue for the struggle for popular justice. While its importance must not be exaggerated, it ought not to be trivialised either. The Critical assault on the imperial posturing of traditional jurists is gaining ground; the Dirty Rascals are at the Castle's gates. Although the days of Dworkin's reign as King of the Castle are numbered, his fall from legal grace will not be enough. No one should be satisfied until the last emperor is laid to rest and ordinary people assume full authority over their own lives.

17. For a detailed and focused application of this democratic ambition, see Hutchinson (1989).

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3

The Decline and Fall of Dworkin's Empire Robert N. Moles

Introduction

The discussion of this paper falls broadly into three sections. The fIrSt section will focus on the negative and superficial approach that Dworkin takes to the work of other theorists. He utilises criteria for assessing their ideas which, if accepted, make it hard to under­ stand how they could ever have been taken seriously. In passing, I shall indicate features of those theorists' positions which make it clear that they were not engaged in the enterprise that Dworkin attributes to them. The observations here are important to the discussion of the second section, which looks in detail at the exposition of Dworkin's own account of a sensible way to ap­ proach legal philosophy. Central to this account is his exposition of the nature of interpretation. When we see that this allows him to 'impose meaning' on the works of others, we should reflect upon the meanings which he chooses to impose upon the works of other legal theorists and ask ourselves why he should want to impose 'those meanings'. He clearly accepts that his reading of them makes them look quite ridiculous, and we should perhaps pause to ask ourselves what this charade tells us about Dworkin's purposes. Given that the other emphasis in his account ofinterpretation is that we should make of a work 'the best it can be', we should be mindful of the difference between the approach to interpretation that Dworkin advocates and that which he employs. While Dworkin places great emphasis on the need to appreciate the way in which ideas develop or fit together (in his discussion of law), he clearly regards this as unnecessary in legal philosophy. The fmal parts of the fIrst and second sections are intended to reflect this 71

Robert N. Moles problem with Dworkin's account. Why should integrity and fit be so important to an understanding of law, and have so little influ­ ence in our understanding of legal theory? The fmal section will take up this point and suggest that Dwork­ in's ideas only appear to be plausible so long as We do not, paradoxically, try to take them seriously. He stresses the need for integrity and fit, yet it is noticeably lacking in the development of his own ideas. Law's Empire does not (on his account) have to be related to any of Dworkin's other writings. Dworkin's work as a whole does not need to be related to the works of others - classical or modern - as he puts it. Yet I suggest in this section that useful comparisons may be drawn. There are, for example, method­ ological similarities between the work of Hart and of Dworkin that lead to a breakdown in our understanding of the development of ideas. I also suggest that a useful contrast may be made between the method employed by John Austin, which allows for the systematic development ofideas, and that employed by Dworkin, which leads to a philosophical approach that can only be described as ad hoc.

Philosophy oj Rejection It is clearly Dworkin's objective in Law's Empire to put forward what he regards as a new approach to our understanding of law. However, before doing so, he feels it will be instructive to reflect for a moment on the shortcomings of other theorists. In this respect, his presentation has similarities with that of Hart in The Concept oj Law. Hart felt it necessary, before developing his own discussion of the nature of law, to dismiss the theory that Austin expounded: 'The investigation of the deficiencies of this theory occupies the next three chapters' (1 961 : 1 6) . Hart would then deal later with the shortcomings of natural law theorizing. Dworkin's treatment of the shortcomings of others is, in fact, far more economical than that of Hart. Instead of taking three chapters to dismiss Austin, Dworkin finds that he can dismiss both Austin and Hart in just over two pages, and Natural Law theories and the Realists in j ust under two (1 986:33-37). The method is remarkably simple - first he claims that: (a) Philosophers insist that lawyers all follow certain linguistic criteria for judging propositions of law. (b) They then produce theories to identify these criteria (1986:32) . 72

The Decline and Fall of Dworkin's Empire

All we have to do now is call such theories 'semantic theories' then go on to show that semantic theories have little to rec­ ommend them and the job is done. All the work of theologians, philosophers and lawyers spanning a period of, well, let's say 800 years, can be jettisoned. This modern philosophy fair takes one's breath away. We should remind ourselves that these few pages in Dworkin contain within them the major discussion in his book of the theories of the Positivists and of the Natural Lawyers. Let us take the opportunity, then, to examine in a little more detail what Dworkin has to say about these theories. Before doing so we should pause for a moment to appreciate the point which Twining made in the introduction to his book on Llewellyn: A common error in contemporary jurisprudence consists in treating all 'legal theories' as if they were rival attempts to answer the same question or set of questions . . . . It is an elementary axiom of intellectual history that the first step towards understanding a thinker is to identify the questions which worried or puzzled him. (1 973:3)

It will become clear that Dworkin, like Hart before him, has failed to pay attention to this 'elementary axiom'. Positivism Rejected

Dworkin refers to John Austin 'whose theory I shall shortly de­ scribe' (1 986:32) . In fact the description of Austin's theory on the following page is so short that we can actually include the whole of it here: John Austin, a nineteenth-century English lawyer and lecturer, said that a proposition of law is true within a particular political society if it correctly reports the past command of some person or group occupying the position of sovereign in that society. He defmed a sovereign as some person or group whose commands are habitually obeyed and who is not in the habit of obeying anyone else. (1 986:33, emphasis added)

Unfortunately, the research assistant who prepared Dworkin's footnotes for him (1 986:ix) was unable to distinguish between John Austin the nineteenth-century legal philosopher, and J.L. Austin the twentieth-century linguistic philosopher. The latter would 73

Robert N. Moles almost certainly turn in his grave at the thought of being credited with The Province ofJurisprudence Determined and Lectures inJurispru­ dence (1986:419, note 30). So limited a statement (two sentences) cannot reasonably be called a 'description' of Austin's position, which took him 1 1 00 pages to set out in preliminary form. Even so , there are one or two points which should, in fairness, be made. Austin, we remember, was dealing with an analysis of the various types of law. He did, of course, state as part of that analysis that laws were commands. He did not state that the commands were past, present or future. This would obviously depend on the circumstances of any particular case, and is not a necessary part of the general concept of a law. We may infer that commands are likely to precede the imposition of sanctions, but this is not necessarily the case, as Austin made clear. Indeed, Austin criticised Blackstone for failing to appreciate that there are occasions when a judge will introduce a new principle, which, in regard to the case being decided, is an ex post facto law (1885:633-34) . He also goes on to point out that in relation to the case by which the rule is introduced, a rule of judiciary law is always (strictly speaking) an ex post facto law, but that where it has been well anticipated by the practitioners, it may not have this effect (1885:651 ) . W e know, as well, that Austin attached great importance to this judiciary law: Wherever, therefore, much of the law consists of judiciary law, the statute law is not of itself complete, but is merely a partial and irregular supplement to that j udiciary law which is the mass and bulk of the system. (1 885:659, emphasis added)

Austin clearly did not restrict his conception of law to past com­ mands as Dworkin claims. We should also point out that when Dworkin refers to the sovereign as the person or group who is not in the habit of obeying anyone else that this again is not correct. Austin obviously thought it would be a very happy day if the sovereign obeyed God's laws, as revealed or as understood through the principle of utility - or else acted in accordance with positive morality in so far as this did not conflict with God's laws. Austin does point out, again in his criticism of Blackstone, that: 74

The Decline and Fall oj Dworkin's Empire Now, he may mean that all human laws ought to conform to the Divine laws. If this be his meaning, I assent to it without hesitation. (1885:215, emphasis in original)

The question is not whether the sovereign actually obeys anyone else, but whether the purported sovereign habitually obeys another in the position oj political superior in which case that purported sovereign is not in fact sovereign. One must accept that the compression of Austin's lectures (which take up more than 1 000 pages) into two sentences is bound to give a somewhat limited account, but there is no reason why that account should also be inaccurate. Can Dworkin's claim that philosophers insist that lawyers all follow certain linguistic criteria for judging propositions of law be related to the Positivist position? If we look at Austin's work it is clear that on almost every topic he turns to, he points out the confusing way in which people speak of things. Indeed, he opens his discussion of 'Equity' by heading the chapter 'Different Mean­ ings Of Equity' and then proceeds to point out: -

If I liked, I could point at books and speeches, by living lawyers of name, wherein the nature of the Equity administered by the Chancellor . . . is thoroughly misapprehended. (1 885:577)

If Austin is pointing out that lawyers oj name confuse the nature of Equity, and use the term with different meanings, then he at least cannot be taken to say that all lawyers follow the same linguistic criteria to determine what it is. In other words, we could say that Austin was making a normative claim, not a descriptive one. He was concerned with how people ought to use language and ac­ cepted that actual usage was confusing and in need of reform. We can say in response to this claim by Dworkin, as we did in response to a similar claim by Hart, that: Austin, and Hohfeld after him, were very much concerned with the confusing aspect of usage and unlike Hart who, as we shall see, attempts to construct a theory which incorporates it, they were reformers and were concerned to try and do something about it. 'It is common enough to use ordinary words in variable senses. There is peril, however, in this common multiple usage of important words; it very frequently . . . causes misunderstanding. He [HohfeldJ took these words out of this

75

Robert N. Moles common usage, even though that usage is confused, overlapping, and inconsistent. His effort was to remove the overlap and inconsistency, forcing a judge or other user to have a clear and definite meaning (thought, concept) and to choose the one word that would convey that exact meaning to another person . . . . One whose own mind is cloudy and confused is certain to convey only cloudy and confused thoughts to others' . (Moles 1 987:60, citing Hohfeld 1 9 1 9:vii-viii)

I think that Austin would have approved of that way of putting it. If we also bear in mind Twining's point that not all theorists are answering the same question then it is clear that anything Dworkin has to say in answer to the question 'What do most (or all) lawyers think?' will be quite irrelevant to our appreciation of Austin's work. On other occasions Dworkin uses a rather wider test by referring to the rule for using the word law 'that everyone accepts' (1986:40) , an d later he puts it in a most confusing way when he refers to the old debate between law and morals: in jurisprudence texts that debate is pictured as a contest between two semantic theories: positivism, which insists that law and morals are made wholly distinct by semantic rules everyone accepts for using 'law', and natural law, which insists on the contrary, that they are united by these semantic rules. (1 986:98)

This way of putting it attributes to the Positivists a position that is contradictory and, in the Case of Austin, inaccurate. It is COntra­ dictory because the claims are that: 1 . Positivists insist that there are rules that everyone accepts regard­ ing the distinction between law and morals. 2. Natural Lawyers do not accept such a distinction. 3. If we accept that the Positivists are aware of the existence of the N atural Lawyers, then Dworkin is attributing to them a pos­ ition that could not be accepted on their own terms. He is attributing to the Positivists a view in which they assert that everyone accepts something, and at the same time he is saying that they acknowledge that a good many people do not accept it. This is not to say, of course, that one should not make such claims regarding them, but that if they are to be made, some evidence 76

The Decline and Fall of Dworkin's Empire should be adduced in support of what may seem on the face of it to be a highly improbable claim. It is clear that Austin did not make any claims regarding what everyone accepts. When discussing this very issue - that of the relationship between Positivism and Natural Law - Austin made the point that: By the confusion of the meaning which I endeavoured to explain, with the meaning which I now have suggested, the grossest contradiction and nonsense is frequently engendered. (1885:573) Perhaps things have not changed much since then. In any event, these are not the words of someone who believes that there are rules that everyone accepts regarding the proper distinction between natural law and positive law. Austin's efforts would have been entirely pointless if it were the case that everyone accepted the distinctions which he laboured so hard to clarify. His labours had, and still have, a point because very few people have taken the trouble to think in a sustained and critical way about this issue. He was willing to make great sacrifices because he thought he might be capable of efforts which no One else could, or would, make to clarify these confusions. Austin did not often speak of what he thought of most men or all men, but as Sarah Austin pointed out in the preface to the Lectures: He Uohn Austin] demanded from his hearers or readers the full force of their attention; and as he knew how lax and flitting the attention of most men is apt to be, he adopted every expedient for fixing and recalling it. (1885:22)

He clearly did not want to chase after what 'all lawyers' think or what 'everyone' thinks - and one is surprised that Dworkin should fInd value in such an unappealing exercise or that he should er­ roneously suggest that this was the aim of others. Austin did think that there was some value in sustained and careful reflection on the nature of the relationship between law and morals, and in making the attempt to understand that relationship by developing a number of specific and very carefully chosen concepts. There would then arise the p roblem of how that understanding was to be commu­ nicated to others . Although Austin was not particularly success­ ful in this regard, no one who has any understanding of his experiences could be misled into thinking that he ever hoped to 77

Robert N. Moles communicate this understanding to more than a small group of people who might have the time and inclination to think about these things . We can now see that what Dworkin has been doing is to take Austin's lengthy attempt at conceptual analysis, and to reinterpret it as making certain empirical claims about what people actually think and do. Instead of understanding the lengthy discourse on the nature of command, duty, sanction, sovereignty, subjection and independent political society as an attempt to give articulate ex­ pression to a conceptual framework, which would help to clarify our understanding if adopted, Dworkin rejects it because it has not already been adopted.

Natural Law Rejected The rejection of natural law theories follows a similar line to that taken in the rejection of positivist theories: If we treat these as semantic theories . . . they have this in common: they argue that lawyers follow criteria that are not entirely factual, but at least to some extent moral, for deciding which propositions of law are true. The most extreme theory of this kind insists that law and justice are identical, so that no unjust proposition oflaw can be true. This extreme theory is very implausible as a semantic theory because lawyers often speak in a way that contradicts it. (1986:35, emphasis added)

Dworkin does point out that in chapter three he describes a better way of understanding natural law theories (1986:35) but unfor­ tunately this later description is as bad as the first. Natural law theories, he says, on this view, are not now semantic theories, but ' general interpretations of legal practice' (1986:98) . This means, according to Dworkin, that they were showing how 'legal rights are those flowing fro m past political decisions' adding for good measure, 'according to the best interpretation of what that means' (1 986:96). One only has to stop for a moment to consider this idea to see how implausible it is. While the 'most extreme theory' of which Dworkin speaks is not identified, we might reasonably assume that he is perpetuating the same misunderstanding as Hart: The clearest, perhaps, because it is the most extreme form of expression

78

The Decline and Fall of Dworkin's Empire of this point of view, is that associated with the Thomist tradition of Natural Law. (1961 : 1 52)

When the theory of Aquinas is placed in its proper context, we can see that there is nothing 'extreme' about it. We should ask ourselves how Dworkin's interpretation of such a view could be derived from the evidence we have concerning it. If we take up the suggestion of Twining and stop to think about the sort of question Aquinas was dealing with, we can see that, while teaching in Rome at Santa Sabina, he conceived a plan to instruct beginners in theology, a plan that was to take form as the Summa Theologiae. Aquinas completed the main body of this 'sum­ mary of theology' (which takes up some 60 volumes in the recent Blackfriars edition) between 1 265-68, and continued working on the third part of the Summa until D ecember 1 273. J . A . Weisheipl points out that: In the prologue Thomas states that it belongs to the doctor of Catholic truth to instruct not only advanced students, but also beginners . . . . Therefore his intention in this work is 'to present those things that pertain to the Christian religion in a manner befitting the education of beginners'. (1974:218, emphasis added)

Aquinas says that he will try, 'confident of divine help, to present those things pertaining to sacred doctrine briefly and clearly insofar as the matter will permit' (Weisheipl 1 974:218) . Weisheipl takes the view that: The three parts of the Summa are ultimately divided into two vast visions of God: the exitus of all things from God, and the reditus of all things, particularly man, to God as to his ultimate goal. (1974:219)

We should note the expression here - 'two vast visions of God' i.e. , no visions (vast or otherwise) of legal practice. It would have been amazing if this medieval monk had interrupted his extended discourse on God to explain to his theology students the nature of 'legal practice' and on how 'legal rights flow from past political decisions'. To picture him engaging in disputations with his the­ ology students in an attempt to ascertain 'what most lawyers think' does not sound quite right either. This is because his natural law was part of his theology - not his sociology of law. The more sensible 79

Robert N. Moles interpretation is that what he was actually dealing with was a person's spiritual source and standing in the context of their eternal destiny. As Thomas Gilby points out: Unless the natural-law doctrine of the Summa is seen in the light of this origin and this end, it loses its theological force and becomes a matter of philosophy, which may well be defended, but as something less than the meaning set forth in the Summa. (Aquinas 1966: 1 69)

We can see, then, that Dworkin fails to realise the inapplicability of his 'all lawyers' or 'everyone' test, because he makes no attempt to understand the question that Aquinas was dealing with. As a result, Dworkin puts forward an interpretation that - if we are to take it as being of a Thomist position - is quite unacceptable. In this respect, there is some similarity between the approach of Dworkin and that of Hart. Dworkin constantly suggests that the j ob of the legal theorist is to capture how 'all lawyers' use the word 'law' . He says, in rej ecting Hart's views, that 'and then Hart's theory would not, after all, capture how all lawyers use the word "law'" (Dworkin 1986:35) , and then he says in connection with natural law that 'this extreme theory is very implausible as a semantic theory because lawyers often speak in a way that contra­ dicts it' (1986:36) . There is, unfortunately, an ambiguity here. It is not at all clear from this discussion whether the 'all lawyers' test is one that Dworkin thinks would be accepted by the theorists of whom he speaks, or is one that he (Dworkin) takes to be valid. I deal with both possibilities here to make it clear that in either view, such a test is quite absurd, and the whole discussion would have been better avoided. In the event, it appears that D workin is using Hart's most valued test to undermine Hart's own position - and in doing so, he confIrms what a vacuous test it is - as well as showing us the assumptions that he and Hart share about the nature of philosophy. Hart placed stress on clarifying our use of language, and felt that this could be achieved by adopting the approach of linguistic philosophy. He used as his test of acceptability what people cus­ tomarily / usually / normally / characteristically / naturally say or do - without identifying, of course, where these people of whom he speaks may be found (Hart 1961 : 1 8, 19) . Dworkin, as we have seen, adopts the more demanding test of what 'all lawyers', or even 'all people' think or say . Of course Dworkin can attribute to 'all 80

The Decline and Fall of Dworkin's Empire lawyers' such knowledge as will enable him to reject Hart's views despite the fact that Hart claimed to be putting forward what ' most people' usually thought. Either way, we can see that this is to turn philosophy on its head. Previously, most people believed in a flat earth, witches and de­ monic possession. We presumably would not want to say that those who questioned these universal beliefs, or even disagreed with them, were in error. In fact, we may accept that frequently, knowledge has advanced because a few people have had the intel­ lectual and moral courage to dissent from widely shared - and deeply held - beliefs . There seems little point in paying professors at prestigious universities large salaries, and giving them research funding, research assistants, computers and access to some of the best literary and scholarly resources in the world if all they are going to do is to tell us 'what everyone knows' . However, the very suggestion that 'most lawyers' (let alone all lawyers, or even worse, all people) actually have any degree of Consensus about the nature of law and legal institutions stretches credulity . The suggestion that the corporate tax lawyer and the country solicitor have a shared conception about the nature of law seems to me to be unlikely - and certainly Dworkin brings forth no evidence in support of his claims. My own guess would be that they would both be too busy to think about it - and that if we were to press them for an opinion, it would be of very little value because they had not had the opportunity to think about it. This brings us, of course, to the poverty of Hart's and Dworkin's legal philosophy. If one were genuinely attempting to establish what most (or all) lawyers think, one would not rate very highly assertions in that regard that had not first made some attempt to fmd out what they do in fact think. Assertions about what lawyers think, which are not based on any evidence, may well tell us something about the assumptions of the person making the as­ sertions - what they will not do is tell us anything further. What must now be clear is that this approach is merely a circuitous route to enable one to put forward opinions and im­ pressions as if they were something more substantial. We know, of course, that Austin 'never had the slightest idea of rendering his subj ect popular or easy' (1885:22) - so he knew from the outset that it would be a pipe dream to suppose that all lawyers (or indeed many of them) would ever take the time to master, as he had done, 81

Robert N. Moles an understanding of the interrelationship between the various concepts. Dworkin later makes great play about what it means to 'respect the text' and suggests that often it is not that one person respects the text and that the other does not, but that they have conflicting ideas of what 'respecting the text' means (1986:238) . I prefer to endorse the approach advocated by Twining, namely, that we should attempt to understand the problem a particular theorist was trying to deal with. Whatever may be Dworkin's ideas about the role of interpretation, we at least know that whatever else the process involves, it requires us to make of a work ' the best it can be' . However, when we see the extent to which his interpretations, like those of Hart before him, lead him to reject other theorists, then we must seriously doubt whether he has actually made of these works 'the best they can be'.

Continuing Revolutions and the Decline of an Intellectual Community Dworkin's suggestion is that we should rej ect the theories of Austin, Hart, and others, because we should treat jurisprudence as interpretation rather than linguistic analysis. In Chapter 1 we reviewed classical theories or philosophies oflaw, and I argued that, read in the way they usually are, these theories are unhelpful because [they are] paralyzed by the semantic sting. Now we can ask what kind of philosophical theories would be helpful to people. . . . (Dworkin 1 986:68, emphasis in original)

It cannot be accepted that the cursory references to 'classical the­ ories' amounted to a review of them, or that the interpretation Dworkin has put forward is the 'usual' interpretation. In most cases, as we have seen, the theorists concerned are not even men­ tioned by name and their theories, as presented, are virtually unrecognisable. These continuing rejections of earlier theorists lead us to an increasingly superficial understanding of them. This can be seen not only in the comparison between Hart's and Dworkin's depictions of them, but also in the comparison of Dworkin's earlier accounts with that now on offer. Students may well feel that if all of the previous intellectual giants can be shown to have been in error concerning such basic aspects of their theories, then there is no reason to believe that we are any closer to the truth now. The next 82

The Decline and Fall of Dworkin's Empire Professor of Jurisprudence at Oxford will be bound to 'rubbish' Dworkin, and we shall then have to start all over again - again. Hart and Dworkin have cut us adrift from the past, from any sense of the development of ideas within our discipline, and from appreciating that there are problems of epistemology which law­ yers have in common with social and natural scientists. Hart stated this quite explicitly: I combine it with the view that the time the student can afford to spend on jurisprudence is likely to be better spent on the close and careful analysis offundamental legal notions and those lying on the boundary of a legal system than in assimilating what he can of other social disciplines . . . I think the analysis oflegal concepts very important and a much more important educative tool than sociological jurisprudence. (1957:955) .

These comments were made by Hart shortly before he produced his book, which he described as an essay in 'descriptive sociology' as well as in 'analytic philosophy' (l961 : vii) . How can the rejection of sociological jurisprudence lead to a descriptive sociology oflaw? If it becomes a sociology that you make up as you go along - as Hart did. No wonder Harris described it as a 'sociology flt for Martians' (1980:21) . It was, of course, an approach that Dworkin was to develop with some enthusiasm. This modern trend should be contrasted with the integrative approach of Austin, who recommended that a legal education should be developed within an understanding of the philosophy of the human mind, logic, ethics, politics and political economy. If these suggestions had been taken seriously, and professors of jurisprudence had paid serious attention to our developing under­ standing of the human mind, for example, I doubt very much whether we would still be trying to get by with the sort of fiction that follows.

Dworkin's Contribution: A Philosophy of Speculations

The Trip to Courtesy We fmd that having dismissed other theorists in the first chapter, Dworkin can, in chapter two, get on with the next stage, which, as 83

Robert N. Moles he says, 'must be philosophical' (1 986:44). Immediately, he launches into something that is to be quite typical of the approach taken in the rest of the book - imagined examples . The first thing we must do is to imagine the following history of an invented community: Its members follow a set of rules, which they call 'rules of courtesy', on a certain range of social occasions. They say, ' courtesy requires that peasants take off their hats to nobility', for example, and they urge and accept other propositions of that sort. For a time this practice has the character of taboo: the rules are just there and are neither questioned nor varied. But then, perhaps slowly, all this changes. Everyone develops a complex 'interpretive' attitude toward the rules of courtesy. (1 986:47, emphasis added)

A little later we are told that: Once the interpretive attitude takes hold, the institution of courtesy ceases to be mechanical; it is no longer unstudied deference to a runic order. People now try to impose meaning on the institution. (1986:47, emphasis in original)

It is very difficult to take such imaginings seriously. This may be the easiest way for Dworkin to get to a discussion of his new 'philosophical' idea - that law is interpretive - but what he has just said makes very little sense. We are obviously being asked to imagine the existence of a 'static community', which subsequently 'starts changing'. But the community is supposed to have both peasants and nobility. It is supposed to be a community in which people follow rules which are just there. I am afraid that it is impossible for me to imagine a static or mechanical community which has such a degree of social stratification. I cannot accept that such a degree of social differentiation was 'just there' - even to assist the development of Dworkin's argument. Bronislaw Malinowski, the anthropologist, insisted that there is no fact without theory, which should lead us to question whether any of Dworkin's social facts could be 'just there' (Overing 1985:preface) . It seems to me that any society with peasants and nobility is going to have a great many social tensions, which to m y mind would indicate that it could not have 'mechanical stability' whatever that is. After all, it was Dworkin himself who observed 84

The Decline and Fall of Dworkin's Empire in Taking Rights Seriously that those who criticise mechanical juris­ prudence: are right in ridiculing its practitioners. Their difficulty, however, lies in finding p ractitioners to ridicule So far they have had little luck in caging and exhibiting mechanical jurisprudents (all specimens captured - even Blackstone and Joseph Beale - have had to be released after careful reading of their texts) . (1978: 16) .

I suppose the critics should have realised that the solution is that what you cannot fmd you can make up; if we do not know of a mechanistic society (or theorist) then why not j ust talk about one anyway. This does not help us with the difficulty that the reason why mechanical j urisprudence is unacceptable (as Dworkin admits) is that it is impossible. How does one 'imagine' that which is impossible - a body without extension for example? It is also impossible for me to conceive of a society that has peasants and nobility in which the members of that society have not already understood that their institutions have meaning. I would have to say that the differentiation of people in the way Dworkin suggests must be an important manifestation of meaning. Yet we are asked to imagine this community - with peasants and nobility, with mechanical stability, and no meaning - and then to accept that only later does the 'complex interpretive attitude' develop (how, or why, is not explained or even imagined) . Only then does change come about and meaning develop. Dworkin then remarks that ' that is a bird's-eye view from the perspective of history of how the tradition of courtesy changes over time' (1 986:49). It is very difficult to know whether Dworkin thinks he is simply explaining the history of his imaginings, in which case we can only sit back, as a psychologist would, and try to sustain our interest. Or is he trying to suggest that this account has wider implications? If it is the latter, and the wider implications are 'philosophical' as Dworkin claims, then we would have to say that the account is so conceptually incoherent as to be unhelpful. If the wider impli­ cations are of an historical nature then we would have to conclude that this account is so counterfactual as to be positively unhelpful. As John Dewey pointed out in his foreword to Paul Radin's Primitive Man as Philosopher published as long ago as 1 927: -

The prevalent idea that the customs of the group provide automatic

85

Robert N. Moles moral standards and rules receives a severe shock . . " Dr. Radin explodes this traditional notion. He makes it clear that objects and nature were conceived dynamically; that change, transition, were primary, and transformation into stability something to be accounted for. (1927: xvii, xviii)

Radin wrote that: Among the more important of these assumptions is the notion that there is a dead level of intelligence among primitive peoples, that the individ­ ual is completely swamped by and submerged in the group, that think­ ers and philosophers as such do not exist - in short, that there is nothing even remotely comparable to an intellectual class among them. These conceptions of primitive mentality the writer regards as wholly unj us­ tified, and it is with the object of contraverting them that the following pages have been written. (1927:x)

Even if the idea of societies with blind adherence to customs was prevalent in the 1 920s, it is certainly no longer so, and why we should want to resurrect it in legal circles today I cannot under­ stand. Hoebel made a similar point in his discussion of Malinow­ ski's Crime and Custom in Savage Society: Malinowski insisted that law exists in primitive societies as distinct from mere custom. Custom is not king. He vigorously asserted that primitive man is not the supine slave of custom . . . he does not automatically or spontaneously follow the rules of his society. (1954:1 78, see particularly Part 1 'The Automatic Submission to Custom and the Real Problem' in Malinowski 1 926)

I do not mean to suggest, of course, that these comments based on observations of actual societies could contradict anything that Dworkin could imagine. It only indicates that Dworkin's imagin­ ings are counterfactual, are lacking in philosophical or explanatory capacity and are liable to mislead. There is a great deal in this discussion of Dworkin's that reflects Hart's discussion of simple, stable societies and those which have rules of change. Hart said that 'the remedy for the static quality of the regime of primary rules consists in the introduction of what we shall call "rules of change'" (1 961 :93, emphasis in original) . We could try to enter into the spirit of the thing by saying that however Dworkin gets there, he is now discussing 'interpretive 86

The Decline and Fall of Dworkin's Empire concepts' and as 'the analysis of interpretation I construct and defend in this chapter is the foundation of the rest of the book' (1 986:50) we really should try to see of what this process of interpretation consists . As this next section is the foundation for the rest of the book, we should perhaps set it down as we discuss it.

The Interpretive Attitude Dworkin commences his discussion of interpretation by speaking of the different circumstances in which it might arise. The first example he looks at is 'conversational' interpretation: Conversational Interpretation People interpret in many different contexts, and we should begin by seeking some sense of how these contexts differ. The most familiar occasion of interpretation - so familiar that we hardly recognize it as such - is conversation. We interpret the sounds or marks another person makes in order to decide what he has said. (Dworkin 1986:50)

One wonders at this stage what audience Dworkin has aimed his book at. It is hard for me to appreciate who would be interested in legal theory, yet not appreciate that conversation involves a complex process of interpretation. He then discusses 'scientific interpretation': Scientific Interpretation So-called scientific interpretation is another context: we say that a scientist first collects data and then interprets them. (1 986:50)

It is diffIcult to know who the 'we' refers to - presumably Dworkin and some others. It is hard to accept the claim that Dworkin made a little earlier to the effect that this section of his book was going to be philosophical. One does not need much awareness of philos­ ophy to appreciate that since David Hume, not many people have accepted that we collect data and then interpret them. Karl Popper, Michael Polanyi, Ludwik Fleck, T.S. Kuhn and R. G. Collingwood - to name but a few - have put forward accounts explaining that before we can have data, we must have both theories that the existence of that data presupposes, and questions that those theories in their turn presuppose. 87

Robert N. Moles An example of this not being appreciated in a legal context is in the case of Rossminster. Here the Inland Revenue descended on the premises of a firm marketing tax avoidance schemes - they re­ moved lorry loads of documentation from the offices, and took them to a warehouse. Unfortunately they were unable to make any sense of the piles of papers, because they did not know anything about the 'theory behind' the tax avoidance schemes of which they were part, and without that, the papers were all quite meaningless. A similar point is appreciated by computer firms who keep their data base in one jurisdiction and the index to it in another - an order by a court to disclose one or the other is of no value. If one selects the jurisdictions properly, an order to disclose both may not be possible. Having referred to scientific interpretation, Dworkin goes on to speak of his next category: Artistic Interpretation Artistic interpretation is yet another: critics interpret poems and plays and paintings in order to defend some view of their meaning or theme or point. The form of interpretation we are studying - the interpretation of a social practice - is like artistic interpretation in this way: both aim to interpret something created by people as an entity distinct from them, rather than what people say, as in conversational interpretation, or events not created by people, as in scientific interpretation. I shall capitalize on that similarity between artistic interpretation and the in­ terpretation of social practice; I shall call them both forms of 'creative' interpretation to distinguish them from conversational and scientific interpretation. (1 986:50)

At this stage, I find it difficult to accept or follow the point of Dworkin's imaginings and ad hoc distinctions. He has dis­ tinguished a social practice from conversations and scientific ac­ tivity, although it seems to me that conversations and scientific activity are both forms of social practice. He tells us that we are studying 'social practice' although he has not specified which social practice is the object of s tudy - is it lawyers, courts, legal doctrine, legal philosophy, primitive societies, or psychology? He then tells us that he will call the interpretation in art and social practice 'creative' to distinguish it from that involved in conversation and science. I do not understand how one can conceive of the interpret­ ation involved in conversations and science as not being creative, 88

The Decline and Pall of Dworkin's Empire and at this point my credulity in following Dworkin can strain no further, being lost as it is in the welter of confusing and meaning­ less distinctions. My determination to persevere collapses when I see that on the next page Dworkin goes on to say: The phrase 'scientific interpretation', we might say, is only a metaphor, the metaphor of data 'speaking to' the scientist in the way one person speaks to another; it pictures the scientist as straining to understand what the data try to tell him. We can dissolve the metaphor and speak accurately, we might well think, only by eliminating the idea of purpose from our final description of the scientific process. (1986:51)

It is funny, of course, to think of data queuing up to speak to us, but it is only funny because it is so far removed from any sensible conception of scientific interpretation that it could only happen in a place like courtesy. But what does it mean to eliminate purpose? To have no regard to the purpose of the scientist, or to eliminate (on the back of this trivial depiction) the views of those who may feel that the physical world in which we exist is a manifestation of God's purpose? However, Dworkin's point in all this is to get to the main point of this section.

Interpretive Methodology: Imposition of Purpose Dworkin points out that: Creative interpretation aims to decipher the author's purposes or inten­ tions in writing a particular novel or maintaining a particular social tradition . . . creative interpretation is not conversational but construc­ tive. (1 986:52, emphasis in original)

However, two sentences later he says: But the purposes in play are not (fundamentally) those of some author but of the interpreter. Roughly, constructive interpretation is a matter of imposing purpose on an object or practice in order to make of it the best possible example of the form or genre to which it is taken to belong. (1 986:52, emphasis added)

What Dworkin is saying is that, in one view, creative interpretation aims to decipher the author's purpose. His preferred solution is that 89

Robert N. Moles creative interpretation is constructive and constructive interpret­ ation concerns the interpreter's purpose. The author's purpose and the interpreter's purpose are distinct, as Dworkin appreciates, and I should have thought that anyone engaged in the process of in­ terpretation would want to be very careful to ensure that slhe does not substitute one for the other in the way in that Dworkin will now show us he regards as being entirely legitimate. We may notice, by the way, that when he spoke of hunting mechanical jurisprudents, Blackstone and Beale had to be released after examin­ ing their texts (see previous reference to Dworkin 1977: 1 6) . Presum­ ably he thought at that stage that their meaning could be ascertained from their texts now he thinks meaning - the in­ terpreter's meaning - must be imposed on [their] texts. It is truly surprising that although Dworkin is speaking of the interpretation of social practices, he makes no attempt to demon­ strate any awareness of the extensive anthropological literature on the subj ect, and although the discussion of Gada mer and Habermas indicates a slightly less crude awareness of the problem than the text suggests, this discussion is consigned to the notes at the back of the book. As the anthropologist Raymond Firth pointed out, anthropologists are, of course, well aware of the need to strive towards an associational or contextual theory of meaning (Mali­ nowski) or to seek that 'context dependent rationality' (Lukes) while aware that ' ''the assumptions due to the conditioning and personal interest of the investigator must influence his fmdings" and that bias should be consciously faced' (Firth 1985:30--3 2). If one were looking to see whether Dworkin actually could mean that interpretation is the act of imposing the interpreter's purpose on the text, we only have to reflect on his interpretation of Austin and Aquinas to confirm that this is so. At no stage is there the slightest concern to understand the works in the context of the authors' expressed intentions and of the information we have concerning the authors' lives and interests. Dworkin also speaks of the assignment of a work to a genre without making it at all clear what he means by this. Who is to do the assigning? Obviously Dworkin has assigned the work of Aquinas to the genre of 'soci­ ology of law' whereas Aquinas would have preferred it to be viewed as a work of theology. It appears to me that the assignment of a work to a genre must in the initial stages be done only tentatively, and one must strive to be aware of the possibility, -

90

The Decline and Fall of Dworkin's Empire while reading, that the book could have been assigned to others. It may be the case that a good work of fiction may work at a number of different levels. It may be just a rattling good story, or it may also be seen to have historical, cultural, psychological insights. Our sensitivity to these may depend on our own knowledge and experi­ ence, which will enable us to pick up on the cues that will assume much greater signiflcance when seen from a different perspective and enable us to access different layers of meaning. These different levels or perspectives on interpretation do not mean that some pay attention to the text and others do not - j ust that we can alter and deepen the significance of our reading, by appreciating the different dimensions within which it may be seen. What we know of the author and of the circumstances prevailing at the time may assist us in developing our awareness of the range of possible meanings. Dworkin goes on to make the observation that 'the constructive account of interpretation will strike many readers as bizarre' (1986:53) . I can confirm that in my case he is correct, but not for the reason he suggests. He supposes that the reason for this reaction is because we prefer the idea of interpretation being a conversation addressed to an author. This reflects a diffIculty in the way in which Dworkin develops his argument - he not only puts his own case forward, but also what he considers to be the case against it. This can be an interesting and stimulating way to develop an argument, or indeed one's understanding. It was, of course, the method employed by Aquinas. Unfortunately, while in most other things Dworkin speaks of making them ' the best they can be' , he does not do this with such counterarguments as he constructs . The best argument against his position is not that others prefer the data to have a conversation with them, but that his view is unstructured, contradictory, at odds with our perception of scholarship and knowledge - and unimaginable. It should also be said that what we have looked at so far is merely confusing; the bizarre is yet to follow. Dworkin did refer to a more acceptable view of interpretation, but unfortunately he did so only in order to reject it. In this section we can see Dworkin's specific rejection of a more sensible approach to the nature ofinterpretation and its substitution with an idea which is bound to lead to the greatest confusion. He says that: 91

Robert N. Moles One solution is very popular. . . . Creative interpretation aims to de­ cipher the authors' purposes or intentions in writing a particular novel or maintaining a particular social tradition, just as we aim in conversation to grasp a friend's intentions in speaking as he does. I shall defend a different solution. (1986:51 , emphasis added)

The reason he appears to go astray at this stage is because of his confusion of two issues. The confusion develops in this way (the following points are taken from the discussion in 1986:55) : 1 . Is a rtistic interpretation inevitably a matter of discovering some author's intentions? (One might perhaps want to answer that the artistic evaluation of something is clearly a separate issue from the determination of what the author intended, but that the latter might well assist the former. ) 2 . Is discovering an author's intentions a factual process independent of the interpreters own values? (One might want to distinguish between the interpreter's conceptual framework, which is of course essential to any understanding and the interpreter's values, i. e. , the criteria utilised by the interpreter in attributing importance or significance to aspects of those experiences. The former is essential to determining an author's intentions, whereas the latter is not. Dworkin's obfuscation of this issue lies at the very centre of his confusion. ) 3. Artistic interp reta tion i s not simply a matter o f retrieving an author's intention if we understand by that a conscious mental state - not if we mean by that 'some particular conscious thought wielding its baton in an author's mind'. (I cannot imagine what he means by this. It appears to be a similar point to that in 1 with perhaps a slightly different emphasis.) 4 . Interpreta tion i n art cannot b e then just a question o f recovering an author's intention; is there, therefore, so sharp a distinction between discovering an artist's intention and finding value in what he has done? Now we can see clearly the basic slip - it seems to come in when thoughts start wielding batons and is seen most clearly in this last observation: interpretation (evaluation as art) is not Just intention; and intention must involve evaluation as art. This is a non-sequitur. Dworkin then only has to add that the matter of finding intention is 92

The Decline and Fall of Dworkin's Empire also a matter of maximising artistic value - and he is then on the road to his constructive, pie-in-the-sky approach to other people's work - as we shall see shortly. The better view is that we should keep those questions separate, because we can then utilise different evidence in attempting to answer each of them - and thus attain a fuller and more sophisti­ cated understanding than Dworkin can manage. Let me give a practical (and real) illustration. At the present time I have put forward an interpretation of Austin's work that I would claim is sound and in accordance with the author's intention (in Definition and Rule in Legal Theory) . Dworkin would find this persuasive evidence, perhaps, in support of his view that in inter­ preting the work of another, one has to make of the work 'the best it can be'. But this is clearly wrong. Both W.L. Morison and Wilfrid Rumble take the view that Austin intended his work to be empirical whereas I claim that he intended it to be conceptual. During the next few months I shall be reconsidering my view of this matter. I shall reconsider the evidence that Morison and Rumble put forward to support their arguments, and I shall seek out whatever evidence may be available, whether it provides further support for their view or my own. There is the possibility that in some writing of Austin's of which I am unaware - or even in that of which I am aware but have not fully appreciated - I shall find a clearer and more conclusive expression of his views. If the further evidence should support the view taken by Morison and Rumble, then I shall not have lost anything; rather I shall have improved my understanding of something in which I am interested - the work of John Austin. In that event, it would then be clearer to me that my own views and his diverge rather more than I previously thought; but this would not oblige me to change my position on what I regard as being the best way to view legal theory . What it would do is give me further impetus to try to understand why he held those views. Was it because the nature of scientific understanding had changed between then and now in a way in which I had not previously fully appreciated? However, if I want to know what is the best way to approach legal philosophy, then my arguments and line of enquiry would be quite different. I could take up the Austinian theme and acknowl­ edging that this is not what Austin would have done, turn it into something else. But why on earth would I want to call that an ,

93

Robert N. Moles interpretation of Austin's ideas? To call it an adaptation of his views would do quite adequately, and this makes clearer where the responsibility lies. Yes, the questions 'What did it mean to him then?' and 'What can I do with it now?' are quite different, and the answer to one is not dependent on the answer to the other. Dworkin has these issues hopelessly confused. When we remember the interpretations to which Dworkin is led, and the fact that he rejects so much of our intellectual history, we may be tempted to condemn this new approach of his out of hand. We might feel, too, a sense of sadness at his seeing so little of value in the work and labours to which others had dedicated much of their lives. The specific methodological means for Dworkin's imposition of purpose is arrived at by a discussion of Stanley Cavell's 'imagined­ con versation test': He [Cavell] notices that a character in Fellini's fIlm La Strada can be seen as a reference to the Philomel legend, and he asks what we need to know about Fellini in order to say that the reference was intentional (or, what is different, not unintentional) . He imagines a conversation with Fellini in which the fIlmmaker says that although he has never heard of the story before, it captures the feeling he had about his character while filming, that is, that he now accepts it as part of the film he made. Cavell says that he is inclined in these circumstances to treat the reference as intended. (Dworkin 1986:56, emphasis in original)

Dworkin says that he regards this as an important analysis for us, because it suggests a conception of intention quite different from the crude 'conscious mental state' view (1986:57). This is quite surprising because this more sophisticated view leads us into a whole series of confusions. In the first place the conversation is 'imagined'; what we know for certain is that it did not take place. Yet it is supposed to illuminate our understanding of what did take place - the making of a film in this case. Dworkin obviously approves of the use of 'imagined conversations' and even goes so far as to say that: We can, if we wish, use Cavell's account to construct a new description of what the citizens of my imaginary community of cou rtesy are doing in interpreting their social practice, an account that might have seemed preposterous before this discussion. (1986:58)

94

The Decline and Fall of Dworkin's Empire The 'conversation' states that the filmmaker had never heard of the story before - in other words, it could not have influenced him one way or the other at the time of making the film. We now have to imagine that Fellini, some time after the event, came across the legend and expressed the view that in some way it captured the feeling he was trying to express in his film; 'in other words he now accepts it as part of the film he made'. But this, of course, is quite mistaken - he cannot accept it as part of the film he made because he is just taken to have stated explicitly that it was not - he did not at that stage know anything about it. To say, after the event, that another view or experience that one comes across is compatible with an earlier view or experience is all well and good, but no matter how much one wants to rewrite history, one cannot say that the latter was part of the former. Dworkin points out that Cavell is then inclined to treat the reference (of which the person is acknowledged to have been unaware) as having been intended by him. If all this were prepara­ tory to a telephone call to Fellini to discuss the matter with him then perhaps there would be no great harm in such musings . However, Dworkin then goes on to observe that: the imagined-conversation test can be applied to authors long dead, as it must be if it is to be ofgeneral critical use. (1986:57, emphasis added)

I am not unaware that the imaginary conversation with the dead is a well recognised and interesting literary genre - writers as diverse as Lucian, D ante and Walter Savage Landor have used it with effect. Dworkin, I would claim, misuses it by suggesting that it provides 'evidence' which can be utilised in place of that other evidence (books and manuscripts) to which we should otherwise resort. He goes on to make an observation, in this respect, which is particu­ larly odd for a lawyer: This brings the interpreter's sense of artistic value into his reconstruction of the artist's intention in at least an evidential way, for the interpreter's j udgment of what an author would have accepted will be guided by his sense of what the author should have accepted, that is, his sense of which readings would make the work better and which would make it worse. (1986:57, emphasis added)

The whole idea of some imagined conversation with an author long 95

Robert N. Moles dead as providing some evidence of what that author intended may be the way in which scholarship is pursued at Oxford, but it does not suggest that the priceless collection of rare books and manu­ scripts in the Bodleian library is being put to good use. The idea that my views of what an author should have accepted could be used as the basis for making assertions about what that author did accept is plainly to confuse the different issues we referred to earlier - that of interpretation in the light of our historical knowledge of the author and that author's concerns with that of criticism and evalu­ ation. Dworkin accepts this openly and without embarrassment. For a person who adopts this cavalier approach to interpretation and fmds it diffIcult to distinguish it from evaluation, it is very easy to slip from a reconstruction of what a person said, based on a desire to improve upon it, to a reconstruction based on the desire to have an opponent who is easily conquered (a straw man) . We know that Hart's reconstructed Austin bore very little resemblance to the real thing, and that the Hartian version was not of course a stronger version as he claimed - nor was it difficult to dismiss. So too with Dworkin' s treatment of other theorists. If I wish seriously to understand the work of Aquinas or Austin, then I must leave my imagined conversations with them and read what they actually wrote. In both cases there is suffIcient clear evidence in their texts to refute Dworkin's view of what it was they intended to do. I might be able to extend my understanding of what an author meant by reading the opinions of his contempor­ aries on the matter, or of others who had reason to be interested in his work. I might then look to the general cultural, intellectual and political milieu of which he was a part, appreciating, of course, that it is always open to a person to react against the prevailing ethos as it is open to him to acquiesce in or support it. The way in which I eventually weigh the various factors and the interpretation that I come up with at the end of the day will, of course, be shaped by the influences of my own place and time and my capacity to empathise with what I take to be the rationale implicit in the work of another. It is very surprising that a man who is able to find so little of interest in the history of human learning should not have stopped to question whether it is not in fact his approach to interpretation which renders the scholars he dismisses so ridiculous. One of the diffIculties with Dworkin's discussion is that it is carried on in a fashion so abstracted from any empirical or theoretical context, and 96

The Decline and Fall of Dworkin's Empire it lurches about so wildly from one point to another, that it is difficult to know how to deal with it. Let us turn to consider one of the basic contradictions running through Dworkin's discussion.

A Social Practice and Participants' Views Dworkin at flrst rejects Austin's interpretation of the nature oflaw , because not all lawyers speak of law like that - then later on he recommends that: interpreting the practice [a social practice] be treated as different from understanding what other participants mean by the statements they make in its operation. (1986:55)

He also indicates his awareness of this point when he says: the raw data of how friends typically treat one another ate no more conclusive of an argument about the obligations of friendship than raw data were conclusive for arguments about courtesy in the community I imagined or for arguments about law for us. (1986:197, emphasis added)

We might add that 'raw data' is a rather infelicitous way of referring to social facts, which are complex constructions, es­ pecially when they are derived from an imagined community. But at least when Dworkin says that understanding a practice is differ­ ent from understanding the statements of participants in it, I can almost hear Austin and Aquinas shouting in unison: Precisely! Now you have it - so even if we had been engaged in the interpretation of legal practice, you could not, on your own admission, use what a lawyer would say to reject our interpretation of it - especially when that lawyer is only a figment of your imagination.

Having said that, I must admit that my sudden vision of Austin and Aquinas shouting in unison makes me suspect that the Dworkinian approach is perhaps beginning to rub off. The problem with all these new starts is that when people approach something such as interpretation de novo there is a great likelihood that they will run together a great many things which should be distinguished. If one says, sitting in one's armchair in the garden, 'How do I understand a practice?' , it is likely that one will 97

Robert N. Moles run together art, law, creative, constructive, conversational, scien­ tific and a great many other ideas. To arrive at the conclusion that understanding what a person says and understanding the practice in which that person is engaged are different questions will hardly come as a revelation to psychologists, sociologists, anthropol­ ogists, literary critics, or judges; so why start afresh - why not look at the literature on interpretation in one or several of these areas? Perhaps to start afresh is easier; but we are almost certain to reintroduce a good many confusions which others have already cleared up. We can also see that fresh starts, without any attempt to provide an explanatory framework to enable us to see the coherent and consistent relationships between our ideas, is likely to lead to confusion. Without it we are likely to emphasise a point when it suits our convenience, and then emphasise the opposite when the argumentative need changes. Hart, for example, was quite happy to say of Austin's idea of dual capacity (seeing the legislator in his official capacity as one person, and in his private capacity as another) that 'this complicated device is really quite unnecessary' (1961 :42) . Later on, when speaking of the secondary rules that the officials must accept he adds, 'Of course, it is also true that besides these there will be many primary rules which apply to officials in their merely personal capacity which they need only obey' (1961 :1 13) . The point about dual capacity being a complicated and unnecessary device (when rejecting the arguments of others) has now been forgotten. When reintroduced without comment in support of one's own argument it is a clear indication that it is not, indeed, regarded as complicated or unnecessary. The situation is similar with Dworkin and his acceptance of the distinction between interpreting a practice and determining what the participants in a practice have to say about it. Dworkin's appreciation of this distinction, like that of many others, is spas­ modic - depending, by and large, on whether he is discussing his own views or somebody else's. Despite what he has just said, he uses the views of imaginary practicing lawyers to dispense with major theorists, legal and otherwise - and of course he uses the opinions of judges (as participants in a practice) to determine the nature of that practice when it suits: the dispute about Elmer was not about whether judges should follow the

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The Decline and Fall of Dworkin's Empire law or adjust it in the interests ofj ustice. At least it was not if we take the opinions I described at face value and (as I shall argue later) we have no justification for taking them in any other way. It was a dispute about what the law was . . . . (Dworkin 1986:20, emphasis added)

Later, when discussing the Brown case, he points out that: This case, like our other sample cases, was fought over the question of law. Or so it seems from the opinion, and so it seemed to those who fought it. (1 986:30)

In fact the whole of Dworkin's argument from page 37 to page 43 concerning the role of the judge is based on accepting statements by the judges concerning the nature of their practice. Nor is there any evidence in our sample cases that any of the lawyers or judges actually believed what this defense attributes to them. Many of the arguments would be entirely inappropriate as arguments for either the repair or the improvement of law; they make sense only as argu­ ments about what judges must do in virtue of their responsibility to enforce the law as it is. (1986:38, emphasis added)

Here Dworkin is happily accepting that judges' statements about the practice of judging must be right. In his discussion of the McLoughlin case, he points out that: that was not . . . the view of Lord Scarman, who thought he was bound by principles embedded in the precedents . . . though the disagreement was subtle it was nevertheless a disagreement about what the law was, not about what should be done in the absence of law. In fact there is no positive evidence oj any kind that when lawyers and judges seem to be disagreeing about the law they are really keeping their fingers crossed. There is no argument for that view of the matter except the question-begging argument that if the plain-fact thesis is sound they just must be pretending. (1986:38-39, emphasis added)

What a pity that Dworkin did not stop to look at Lord Scarman's speech in Furniss v . Dawson as an example of Lord Scarman not being embarrassed by the principles embedded in the precedents. Is there really no evidence of any kind, or no justification to say that the practice of the judges is other than the judges say it is? Can it be that the only way to make sense of what the judges say is to accept 99

Robert N. Moles it at face value? Dworkin suggests somewhat naively that if we do not accept what the j udges say at face value, then they must be either telling lies or prevaricating. At least, this is what I take him to mean when he refers to j udges keeping their ' fmgers crossed'. This is of course not correct, and it would be astounding if it were. When judges are involved in complex cases, often having to give extempore judgments, it would be remarkable if they had a per­ suasive and detailed analysis of what is involved in judging. This is why they might look to the university professors to take a wider view, and to come back to them with views based on that wider perspective that they, with their detailed understanding could not be expected to have. There are of course a good many political and social reasons, which are well understood by people (other than Dworkin - sometimes) as to why the judges are reluctant to state openly in their judgments what exactly might be going on in the cases. That this is so can easily be established. In the case of The Norman, the ship ran aground off the coast of Greenland in October 1952, with the loss of 19 of the crew of 20. The shipowners, although vicariously liable for the improper navi­ gation of the vessel, would have been entitled to limit their liability to a rate per ton of the registered tonnage of the vessel, if they could establish that the stranding occurred 'wholly without the actual fault or privity of the owners'. To anybody reading the report of the case, it is clear that their lordships in the House of Lords looked at the facts of the case and then decided that there were some things that the owners could have done, but that they did not do, there­ fore the owners could not prOlle that the stranding occurred without their fault. They would not therefore be entitled to take advantage of the provision of the Merchant Shipping Act of 1 894 to limit their liability. As we shall see in a moment, in no case since then have shipowners been able to establish that they had done all they should have done so as to be able to limit their liability. On the face of it, it would appear that shipowners since the early 1960s must have become more careless. Of course, there is more to it than that. There were some very important factors operating in the judges' minds, but which they did not refer to in their speeches in The Norman. To go back to the facts of that case: if the owners had successfully established that they were not personally responsible for the loss of the ship although they were vicariously liable for its improper navigation) 1 00

The Decline and Fall of Dworkin's Empire then they would have brought themselves within the provisions of S503 of the Merchant Shipping Act of 1 894. Liability would then be limited to £15.00 per ton of the ship's registered tonnage, which was 522 tons. Total liability for the loss of the ship's crew would have amounted to £7830.00. If this had been divided equally between the families of the lost seamen, they would have received £41�.00 per family. Even in 1960, when the case was reported, this was not big money, and compared very badly with the amount the family would otherwise have received. The judges, we are told, were very unhappy with the fact that the rate had not been in­ creased since the 19th century to take account of inflation. They responded in the way they knew best - by fmding ways in which any shipowner who wanted to avail herself/himself of the protec­ tion of the provision could have done more. In less judicial language, the provision, since 1960, became a dead duck; 'the Lords have taken away that which by statute the law gave to shipowners' (Sheen 1 987: 1 58) . One would not have to be very astute to appreciate why it was that the judges did not announce that they were going, in effect, to repeal S503 of the Merchant Shipping Act. Certainly, there is not one word that I can find in the speeches in The Norman to say that the application of the section was unjust. Yet according to Sheen in his address to the Chartered Insurance Institute: What I seek to demonstrate is that in a situation in which the law appears to any right thinking person to be manifestly unfair, judges will find a way of producing an answer which is fair. . . . What may be of real interest to you is to see how judges can change a law which they regard as unjust. (1987:158)

As Austin pointed out in his discussion of statute law, 'if it be generally disliked, although it be perfectly perspicuous, it probably will be abrogated by the tribunals at the instance of public opinion' (1885:656) . In Rossminster, Lord Denning pointed out that judges are not allowed to read Hansard when concerned with the interpretation of a statutory provision. Although he did not say so in such terms, there is a clear implication fro m what he did say that he did in fact read the parliamentary debates (Rossminster CA at 399) . Perhaps he was unwilling to be as explicit as he had been in Davis v. Johnson, for his openness there about referring to Hansard was subjected to 101

Robert N. Moles serious criticism by their Lordships in the House of Lords. It is clear from what Denning says in these judgments that he was also claiming that other judges consulted Hansard although they were not willing to admit this openly (Davis CA at 850-1 and HL 1 1 32) . I am afraid that if we were to adhere to the line that Dworkin advocates, that what the judges say in their judgments is to be taken at face value, then we should have a very odd jurisprudence, and one which is quite incapable of acknowledging even the existence of most of the interesting legal developments in recent years. And of course, if legal advisers had adhered to the Dworkinian view, then perhaps most of those developments would not have taken place. Austin may have had few students, very little income and no computerised retrieval systems, but he did know that: Generally the new rule is not introduced professedly, but the existing law is professedly ascertained by interpretation or construction . . . . If the new rule obtains as law thereafter it . . . is considered as evidence of the previous state of the law; and the new rule, thus disguised under the garb of an old one, is applied as law to new cases. (1885:531)

This is an interesting observation to the effect that 'interpretation' is often used by the judges as a cover for activities of a different sort. He did go on to point out that: Law of this latter kind . . . has been styled by Mr. Bentham 'Judge-made law : a term pithy and homely, and which I therefore love, but which nevertheless I am constrained to reject. For, first, it does, in some sort, smack or savour ofdisrespect. And, as I cannot concur with Mr. Bentham, in his sweeping dislike of law made by judges, I cannot consent to mark or brand it with a name importing irreverence. (1885:532, emphasis in original) '

While appreciating that judicial creativity was essential, Austin also appreciated that judges sometimes hid behind what he called 'childish fictions' ( 1 861 :634) and that we should blame them for legislating under cover of vague and indeterminate phrases which would be censurable in any legislator (1885:219) , Given Dworkin's occasional commitment to the fact that the judges are not involved in changing the law, he now has to construct a theory that allows for the obvious fact that the law does 1 02

The Decline and Fall of Dworkin's Empire change, and to ensure that his account of this is compatible with his view of political theory.

Integrity and Fit Dworkin makes the suggestion that the answer to all our ills is to appreciate that 'integrity' is what we have been looking for. But, of course, in many ways he has rather cooked his own goose. If he is telling us something new, then we can reject it by applying the Dworkinian test of what everyone knows or how everyone speaks - as not everyone, or all lawyers (even Dworkin up until now) speaks like that, then he must be wrong. If he is not telling us anything new, then we should ask him why he has to imagine so many odd things to enable him to tell it to us. The compromise between the old and the new is brought into play by assertions regarding what 'we' accept and think is right. We all believe in political fairness: we accept that each person or group in the community should have a roughly equal share of control over the decisions made by Parliament. (Dworkin 1986:178) A working political theory must be more relaxed: it requires only that government pursue general strategies that promote the overall good as defined roughly and statistically to match what equal concern requires according to the conception in play. (1986:222)

But look how loosely worded this is. Of course it is easy to say 'we all believe in political fairness', but this tells us precisely nothing. It is like saying we all believe in happiness or nice things. It is uncontentious because it is vacuous. What does he mean by each person or group - and how equal is roughly equal - what does roughly and statistically mean? Apparently integrity stands beside justice and fairness, and it is our 'Neptune', (Dworkin 1986: 1 83) which makes a change from the old claims about keys to the science of juris­ prudence. He does, however, say that it is ' the key to the best constructive interpretation of our distinct legal practices and par­ ticularly of the way our j udges decide hard cases at law' (1986:216). The argument at this stage is rather rambling - a view confIrmed when we fmd a section called 'untidy endnotes' which gives the impression of further ad hoc observations that Dworkin could not be bothered to flt into the body of the text. It is particularly surprising to fInd this in a central chapter of the book discussing 103

Robert N. Moles integrity and fit (Dworkin 1 986:216). We are told that integrity and flt have to do with principles assumed by past political decisions; that as people become more sensitive about what these principles require in new circumstances, the recognised pUblic standards can expand and contract organically (1 986:188) . After discussing John Rawls's views, Dworkin rather unfairly suggests that 'we can avoid the fantasy of the argument from consent' (1986 :194) . Perhaps Dworkin is not so committed to equality of treatment after all, and wants to keep all the fantasies for himself. This is particularly surprising because a few sentences later he picks a rather nice one that of a philosopher broadcasting a stunning and valuable lecture from a sound truck. One of the disturbing things about this whole discussion is that Dworkin asserts that 'integrity is about principle and does not require any simple form of consistency in policy' (1 986:221) . Un­ fortunately this is one of the few occasions when Dworkin does provide a footnote to his earlier work. He refers us back to his attempts to recover from the admission in Taking Rights Seriously that while we can distinguish between principles and policies, 'nothing in the present argument turns on the distinction' and that 'the distinction can be collapsed by construing one in terms of the other' (1978:22). We are later presented with extensive arguments to the effect that the distinction is important as well as tenable (1978:294-330) . We find a little later that Dworkin's appeal to consistency has to be diluted further: History matters in law as integrity: very much but only in a certain way. Integrity does not require consistency in principle over all historical stages of a community's law; it does not require that judges try to understand the law they enforce as continuous in principle with the abandoned law of a previous century or even a previous generation. It commands a horizontal rather than vertical consistency of principle across the range of legal standards the community now enforces. . . . Law as integrity, then, begins in the present and pursues the past only so far as and in the way its contemporary focus dictates. (1986:227)

How can one run together the claims that: 1 . Integrity has to do with principles assumed by past political decisions; 1 04

The Decline and Fall of Dworkin's Empire 2. History matters - very much; 3. Integrity does not require consistency of principle in any histori­ cal sense (p. 227) ; and 4. Integrity does require consistency of principle (p. 228) . This appears to me to be not only a rambling discussion that is difficult to follow, but one which is now riddled with contradic­ tions. Apparently though, the situation is recoverable - but at a price. We now have to return to creative interpretation - the idea that allows us to 'impose purpose over the text or data or tradition being interpreted' (Dworkin 1986: 228) . With our capacity to im­ agine conversations and rewrite the data accordingly, one wonders why there should be any problem of consistency. We are now required to compare the judge deciding what the law is, not only with citizens of courtesy, but with another artistic and creative situation.

The Chain Novel Because the distinction between author and interpreter is more a matter of different aspects of the same process, we can fmd an even more useful comparison, Dworkin claims, 'by constructing an artiftcial genre of literature that we might call the chain novel . ' Each author writes a chapter - then hands the whole work to the next author. Each subsequent author aims to create a single unified novel which is ' the best it can be' (1986:229) . Since his earlier discussion of interpretation, practically every­ thing that Dworkin has referred to has to be 'the best it can be' . He sometimes adds 'all things considered' - as if this might make a difference. The truth is of course that it does not make a difference, because the whole approach is so utterly vague and vacuous. To speak of an enterprise being 'the best it can be' does not even begin to have any significant meaning until we know the nature of the enterprise and the standards which are to be utilised in ascertaining what constitutes excellence, and the circumstances that affect the extent to which it is attainable. Unfortunately this discussion continues at much the same level. We are told that the approach will have to be 'complicated and multifaceted' and that we will have to find 'layers and currents of meaning' (1986:230) . To round off this part of the discussion we are told that 'we can give structure to any interpretation . . . by distinguishing two dimensions on which it must be tested' : 105

Robert N. Moles 1 . The dimension of fit - the chain novelist has to make all the sections of the chain novel flt. Well, says Dworkin, 'that does not mean his interpretation must fit every bit of the text' (Dworkin 1986:230) . He later waters this down, when discuss­ ing judges, to 'must achieve some fit with past judicial decisions' (1 986:439 note 1 1 , emphasis added), and apparently, fit has to do with 'which interpretation makes a political record the best it can be overall, everything taken into account' (1 986:257) . 2. The second dimension requires the interpretation to 'make the work in progress best, all things considered' (1 986:231). Dworkin adds that an interpretation which 'flts more' might show the text in a better light, so that 'the distinction between the two dimen­ sions in less crucial or profound than it might seem' (1986:231). I regret to say that it does not appear to me that the tests are in the least profound. In fact it is hard to see how these supposed criteria could be a 'test' of anything. To talk in such a vague manner about such things as 'integrity', 'fit', and 'the best it can be' may well evoke in some a good many pleasant feelings, but it assists me not one jot in understanding the very real complexities of the judicial role. Of course, I would like things to be 'the best they can be, overall, everything taken into account' but I would not mislead myself into thinking that I am any further advanced in my under­ standing, having said that, than I was before. The next stage in the development of the argument requires us to use our imagination again.

Hercules Dworkin points out that he will: try to exhibit that complex structure of legal interpretation, and I shall use for that purpose an imaginary judge of superhuman intellectual power and patience who accepts law as integrity. (1986:239)

One feels as if it is the reader of such an account who needs superhuman patience to cope with Dworkin's endless stream of fantasies . It is also somewhat annoying to find that Dworkin constantly refers to the development of his argument as coming to terms with the complexities of the law and the profundities of interpretation, when the truth of the matter is that he has glided over them all with pleasant sounding, but essentially meaningless words. 106

The Decline and Fall of Dworkin's Empire The superhuman judge - Hercules - appeals to an adjudicative principle of integrity which instructs judges to identify legal rights and duties, so far as possible, on the assumption that they were all created by a single author: Law as integrity, then, requires a judge to test his interpretation of any part of the great network of political structures and decisions of his community by asking whether it could form part of a coherent theory justifying the network as a whole. No actual judge could compose anything approaching a full interpretation of all of his community's law at once That is why we are imagining a Herculean judge ofsup erhuman talents and endless time. (1986:245, emphasis added) .

The wording, again, is very loose here. In the first sentence Dworkin speaks of a judge interpreting ' the great network of political structures and decisions of his community' and in the next sentence it becomes an interpretation of 'all of his community's law'. One might imagine that the great network of political struc­ tures and decisions of his community might go a great deal wider than interpreting the laws of the community, but it is not clear whether this is intended, and, if it is, what the difference is. We are told, of course, that an actual judge can imitate Hercules in a limited way: He can allow the scope of his interpretation to fan out from the cases immediately in point to cases in the same general area or department of law, and then still farther, so far as this seems promising. (1986:245)

Unfortunately we are not told anything about the procedure or the mechanism involved in this 'fanning out' . Judges have to deal, and can only deal, with the cases that come before them, and this may rather limit their scope in spreading their views. Occasionally, a judge might be able to influence when or where a case is heard. We know of course that Lord Denning was instrumental in ensuring that Davis v. Johnson went to the Court of Appeal, (Davis:856) and that Lord Scarman (who was then a member of the House of Lords) appeared in the Court of Appeal in Ramsay, and gave a scarcely veiled hint that an appeal to the House of Lords might be no bad thing . In fact, he pointed out in Ramsay (221) that he was hopeful that the maj ority decision of the Court of Appeal in Floor v. Davis might, in the not too distant future, be reviewed by the House of 1 07

Robert N. Moles Lords. He added that it was unfortunate that when Floor got to the House of Lords some eighteen months earlier, it was argued and decided upon a point other than the one their Lordships wished to deal with (Ramsay:22l) . Not a lot of scope for 'fanning out' there. Dworkin continues a little later, as ifhe were discussing an actual occurrence, rather than a figment of his imagination: , I must call special attention to a feature of Hercules practice that has not yet clearly emerged. His judgments of fit expand out from the immedi­ ate case before him in a series of concentric circles [from the immediate case to emotional injury, accidental damage to the person, then econ­ omic interests, etc. ] . (1986:250)

Well I suppose this is intended to mean that judges can conceptual­ ise the nature oflegal problems at different levels, but this is hardly new or exciting. When he goes on to speak about Hercules seeking a constructive interpretation of compartmentalisation - the division of the law into contract, tort, land law etc. , he adds: If legal compartments make sense to people at large, they encourage the protestant attitude integrity favors, because they allow ordinary people as well as hard-pressed judges to interpret law within practical bound­ aries that seem natural and intuitive. (1986:252)

We shall of course remember having had some diffIculty earlier with the knowledge that Dworkin was willing to attribute to 'most lawyers', but I should think that he rather overstates the capacity of 'ordinary people' when he suggests that the legal categories allow them to interpret law within practical boundaries that seem natural and intuitive. My impression is that if ! were to state the boundaries between 'legal departments', a lot of ordinary folk would be likely to respond as Scott's Mrs. Bertram did: 'That sounds like nonsense to me my dear'. Only perhaps to be met in turn with Mr. Ber­ tram's: 'May be so my dear, but it may be very good law for all that' (Guy Mannering) . Ordinary people may well respond to particular substantive issues which come to their attention, but I could more easily be persuaded that the categorisation of the various areas of law has much more to do with responding to the needs of practitioners or pedagogic reasons than it has to do with responding to popular conviction. 1 08

The Decline and Fall of Dworkin's Empire What all this leads us to, apparently, is that, as critics, we can impose structure on Hercules' working theory by teasing out its rules of thumb about fit (Dworkin 1986:256) . His convictions about fit are of course responsive to his political judgment, not mechanical (1986:257) . The constraint fit imposes on substance is the constraint of one type of political conviction on another in the overall judgment as to which interpretation makes a political record the best it can be overall, everything taken into account. But of course: He must accept that in finally choosing one interpretation over another of a much contested line of precedents, perhaps after demanding thought and shifting conviction, he is developing his working conception oflaw in one rather than another direction. (1986:258)

Now I see that Hercules - after much thought and shifting convic­ tion - realises that he is making a choice.

The Missing Elements: Structure and Sense

Perhaps at this stage we should pause for breath and ask ourselves how such a confusing view of legal philosophy has been allowed to develop. To get a clearer view of recent developments, we should, I think, have to go back to the issue we raised at the outset - that of Hart's role as precursor of Dworkin. If we look at the work of Dworkin in isolation, we shall, I believe, fail to see the real malaise implicit in the two most signifi­ cant contributions to postwar Oxford jurisprudence. In order to understand the full extent of the problem we have to have some understanding of what led up to it. Dworkin, like his predecessor at Oxford (H. L.A. Hart), claims to be putting forward new theories and new ideas. Yet, for all its differences, Dworkin's approach has more in common with that of Hart than is often appreciated. The tools employed by Hart have become more efficient in Dworkin's hands, but this is not something that should give rise to satisfaction. Rather, it should occasion serious concern about the aims and methods ofju risprudential scholarship at the present time. In order to draw out the similarities, let us consider first the approach that Hart took to his work. 1 09

Robert N. Moles Similarities in Hart's and Dworkin's Approaches We remember that Hart took the view in the The Concept oj Law that he did not intend to write a book which simply dealt with what could be found in other books. Although much of his book was to be concerned with the deficiencies of a simple model of a legal system 'constructed along the lines of Austin's imperative theory' (Hart 1 961 :viii) , he pointed out that 'in the text the reader will fmd very few references to other writers and very few footnotes' ( 1961 :viii) . The explanation for this was that 'the argument of the book is a continuous one, which comparison with other theories would interrupt' (1961 :viii) . Unfortunately, this simply does not follow and indicates how Hart confused two distinct points that should have been dealt with separately. The three earlier chapters of his book did indeed present a continuous discussion of what Hart thought was an improved version of Austin's position. 'So we have not hesitated where Austin's meaning is doubtful or where his views seem inconsistent to ignore this and to state a clear and consistent position' (196 1 : 18). But, of course, there was no need to adopt the 'no references and no footnotes' approach in this section of the book. References and footnotes would not have rendered the argument any the less continuous - for one uses footnotes in order to ensure the continuity of the discussion. What Hart was confusing here was: (1) the use of footnotes to support the views which he had attri­ buted to Austin, and which were a central part of his critique, with (2) the discussion of other theorists, that is, theorists other than the one he was focusing upon at that time. Certainly, to bring into the discussion, at this stage, the views of other theorists, might well have distracted the reader's attention from the argument that Hart wanted to make in respect of Austin. However, this does not mean that the use of footnotes and refer­ ences to indicate where these supposedly confusing views of Austin's could be found would have done anything other than make the argument more forceful and more convincing. In fact, this discipline might even have improved the argument itself - in attempting to track down precisely where Austin said something, Hart might well have realised that Austin did not in fact say it at all. I was faced with a similar problem when discussing Hart's own work in Definition and Rule in Legal Theory (1987:chaps 2,3). I 110

The Decline and Fall of Dworkin's Empire concluded that it would be better not to break up the criticisms of the development of Hart's argument in The Concept by including comments on the views of other theorists. The main difference between my approach and that of Hart was that instead of referring to Hart's work in abstract and general terms, I used direct quo­ tations and footnotes on each occasion when I referred to his views, in order to substantiate the argument. The same approach has been followed in this article. Such an approach, far from making the argument less continuous, assists the skeptical reader in checking the account being offered against the author's actual text. Hart's view was different; he said that: I hope that this arrangement may discourage the belief that a book on legal theory is primarily a book from which one learns what other books contain. So long as this belief is held by those who write, little progress will be made in the subject; and so long as it is held by those who read, the educational value of the subject must remain very small. (1961 :viii)

This did not mean that Hart was not going to discuss the views of other theorists, as this might suggest. Indeed, he actually stated that he was going to examine, not only the views of Austin, but the doctrines of Holmes, Gray, Llewellyn and Kelsen ( 1961 :232). Despite Hart's avowed intentions, The Concept became the primary vehicle through which people learned what other books - The Province ofJurisprudence Determined and Lectures on Jurisprudence or The Philosophy of Positive Law contained. I take it that no one (apart from S tephen Guest) would doubt that the discussion in chapters two through four of The Concept was not only intended, but was taken by a great many people to be a representation of what may be found in these books. Hart did state that 'the deficien­ cies of this theory [the theory Austin expounded] occupies the next three chapters' (Hart 1 961 : 1 6 and Guest 1 988:645) . Hart's only innovation - if it may be called that - was that he was not going to correlate his account of what other scholars said with what they actually said. Looking back on it, it seems very strange, particularly to a lawyer, that a legal philosopher could be so dismissive of the views of so many other theorists in the field without having to set forth any of the evidence from which those conclusions were derived. In the discussion of 'the Austinian pos­ ition' - or something quite like it - which takes place over fifty-nine pages, there are very few specific references to Austin's text. -

111

Robert N. Moles Further references are provided in the discussion in the 'endnotes' at the back of the book, but this still leaves many of the major points to which Hart refers unsupported by any signifIcant refer­ ences. One wonders how Hart thought that this would enable us to make 'progress' in the subject, or how the 'educational value' of the subject would thereby be enhanced. It is unfortunate that in the years since 196 1 , neither Hart himself nor his successor has taken steps to correct the account of the earlier theorists given in The Concept, or to deal seriously with the con­ fusions and contradictions contained within it. It is clear that, in terms of methodology, Dworkin actually approves of the approach taken by Hart, and in his recent book takes it even a s tep further. Instead of the wholesale dismissal of named scholars, Dworkin simply dismisses whole categories of them: I have not tried generally to compare my views with those of other legal and political philosophers, either classical or contemporary, or to point out how far I have been influenced by or have drawn from their work. (1986:ix)

As we have seen, despite this claim, Dworkin does discuss 'the positivists' , ' the natural lawyers', and ' the realists' in Law's Empire. There are no detailed references to the work of the theorists being discussed, and what discussion there is, is superficial, misleading, and entirely dismissive of them. Having, like Hart, given short shrift to his predecessors, he can then get on with developing his own new ideas (1986:68, 109) . S trangely, however, Dworkin even gives the impression that he cares as little for his own work as he does for that of others: I

have made no effort to discover how far this book alters or replaces positions I defended in earlier work. (1986:viii)

Not only does he regard it as unnecessary to build on the contri­ butions of o thers, but he will not even relate what he has to say currently to his own previous contributions . This, of course, is bound to create considerable difficulties for those who take an interest in his work. It certainly gives the impression tha t Dworkin neither knows nor cares about the coherence and consistency of his work as a whole. Those who take an interest in his work may well 112

The Decline and Fall oj Dworkin's Empire find it to be of importance to know whether a view expressed in

Law's Empire is intended to be consistent with, or an alteration or replacement of a view expressed earlier. It seems strange that Dworkin should feel that it would take effort to discover the relationship between his present and his previous views. Given the number of times he must have gone over them in discussions, one would have thought that he would be perfectly familiar with them. Perhaps this is just another manifestation of the ad hoc philosophising which is so apparent in this recent work. Neil MacCormick has taken the view that the problem Hart was grappling with was that: Clear ideas needed clarification of speech, not elaborate constructions of philosophical systems. (1981:13)

While Hart rightly indicated the need to have clear ideas about those things we talk about, he seemed to think this was compatible with the claim that what we do not need is 'elaborate constructions of philosophical systems' . However, there is a problem of consist­ ency here. MacCormick's observation immediately followed another to the effect that: Laws are formulated and promulgated in words. Legal acts and decisions involve articulate thought and public utterance- often also public argument. A comp licated conceptual framework and indeed a large and partly specialized vocabulary is essential to the structure of the wide range of practices and activities which constitute a legal order. (1981 :12, emphasis added)

If a complicated conceptual framework (that presumably must be the product of some philosophical system) was essential, then this would lead us to believe that the claim attributed to Hart that we do not need 'elaborate constructions of philosophical systems' is wrong and contradictory. If one attempts to resolve the contra­ diction by claiming that the necessity for a complicated conceptual framework was one that was made b y the analytical jurists, (about whom MacCormick was speaking) but not by Hart, then Mac­ Cormick makes it clear that this is not his view when he says that what he is discussing is: . . . the intellectual context to which his [Hart'sj jurisprudence belongs, and the end to which it is directed. (1981:12)

1 13

Robert N. Moles On this view, it appears that Hart accepts the need for a compli­ cated conceptual framework in order to understand law, while at the same time rejecting the need for 'elaborate constructions of philosophical systems'. It is, in my view, doubtful whether Hart did in fact appreciate the need for a complicated conceptual framework, for in many ways it is probably the unsystematic approach in the Hartian restatement in legal theory that allowed it to survive for so long. The proliferation of questions that are asked but not answered, the subtle distinctions that are made and dis­ carded, all give the impression that some serious intellectual ac­ tivity is going on. So long as one does not ask questions about where we are going or why, then one can have endless fun with these puzzles and conundrums. As soon as one attempts to weld together the bits and pieces of Hart's approach into a systematic unit, the contradictions become apparent (Moles 1 987:chap. 3) . To take just one example, on an issue which was quite central to his concerns in The Concept Hart's discussion of precedent: -

Any honest description of the use of precedent in English law must allow a place for the following pairs of contrasting facts. First, there is no single method of determining the rule for which a given authoritative precedent is an authority. Notwithstanding this, in the vast majority of decided cases there is very little doubt. The head-note is usually correct enough. Secondly, there is no authoritative or uniquely correct formu­ lation of any rule to be extracted from cases. On the other hand there is often very general agreement, when the bearing of a precedent on a later case is in issue, that a given formulation is adequate. (1961 : 1 3 1 , emphasis added)

Then, on the following page, Hart makes a claim that plainly contradicts what he has j ust said: None the less, the life of the law consists to a very large extent in the guidance both of officials and private individuals by determinate rules which, unlike the applications of variable standards, do not require from them a fresh judgment from case to case. (1961 :132, emphasis in original)

How can one say that it is not possible to have any single method of determining what the rule is in a case - then add that officials are guided by determinate rules that do not require from them a fresh judgment from case to case? If the former is correct, assertions 114

The Decline and Fall of Dworkin 's Empire regarding what the rule is are unavoidably the products of judg­ ment. Hart seems not to appreciate that the existence of agreement as to how the judgment is to be made is a very different thing than saying that a judgment is not required. The suggestion that 'the head-note is usually correct enough' simply means that the under­ standing of what these judgments are can be delegated to the reporter of the case - a practice which I, as a student, was taught was unacceptable. It was surprising to find such an approach being advocated by an eminent jurist, in a book on legal philosophy. When Dworkin came to consider the state of legal theory he could say that 'the most powerful contemporary version of posi­ tivism is that proposed by H . L. A . Hart, and it is Hart's version which is criticised in this book' (1978:ix), adding that this theory is not only powerful but also clear and elegant (1978: 16) . As we have seen, in the time of Law 's Empire it did not seem to be in the least powerful. Dworkin rejected Hart's views with less consideration than Hart had given to Austin in rej ecting his views. But how had things been before the advent of the continuous revolutions? Well, Austin was as insistent as anybody else about the need for clarity of expression - only in this regard, he was far more successful than some of his successors. In his view, style should only be sought as an aid to clarity. Sarah Austin (his wife) made this clear when she said that: . . . the labour he bestowed on style was bestowed solely with a view of expressing his thoughts with the greatest possible clearness and pre­ cision. (1885:27)

It was Austin's pursuit of precision in language that provided a severe impediment to the pursuit of his career as a barrister. As Sarah Austin pointed out in her posthumous account of her husband's difftculties: He was, as he says, intolerant of any imperfection; and so long as he could descry the smallest error or ambiguity in a phrase, he recast it again and again till his accurate mind could no longer suggest an objection or a difficulty. (1885:5)

In telling accounts such as these we come to understand that there is no doubt regarding Austin's commitment to the need for clarity of thought and speech. But in such accounts we also come to appreciate 1 15

Robert N. Moles the means by which Austin thought that such clarity could be achieved - and it is here that we see the clear distinction between the method which Austin employed in achieving it and what which was later to be employed by Hart and Dworkin. For Austin, clarity could only be achieved by the use of concep­ tual analysis based on the use of definition - he had to ' recast it again and again till his accurate mind could no longer suggest an objection or a difficulty' . The problem was, as Austin saw it, that: These terms, nevertheless, are beset with numerous ambiguities: their meaning, instead of being simple, is extremely comfllex: and every discourse which embraces Law as a whole, should point distinctly at those ambiguities, and should sever that complex meaning into the simpler notions which compose it. (1885:1075)

This process of breaking down the complex ideas into their simpler constituent aspects - a process of conceptual analysis - could only be achieved by the use of defmition. These definitions, in turn, had to be linked together as part of a dissertation which was 'long, intricate and coherent' (1885 : 1 076) . In other words, understanding a complex social system could only be achieved through a process of analysis - and that process of analysis could only proceed by using definitions that would be employed to construct a complex and coherent conceptual system, which could give some structure and unity to our thoughts. This is attested by the fact that the lectures contain a list of contents (9 pages) , an outline of the course oflectures (43 pages) , an abstract of the outline (3 pages) and a table of the abstract (1 page). Now we know, of course, that the Lectures were not published until after Austin's death, and what in effect we are seeing presented here are Austin's 'working papers ' . We can see then that these abstracts and tables were not produced after the event for the purpose of publication, but were necessary to Austin while work­ ing on his lectures in order that he could retain before him a clear understanding of the structure of his overall project. Whether or not we would agree with the details, or even the overall orientation of this project, what cannot be doubted is that Austin saw the need to develop explicitly a highly structured approach - by the use of definitions - thereby ensuring that when terms were employed, they would thereafter be used consistently. 1 16

The Decline ay,d Fall of Dworkin's Empire We also see Austin opening his lectures with a broad definition of 'a law in general', then subdividing this into laws Divine (or natural) and Human, then dividing the latter category into positive law and positive morality. Then he returns to his broad definition and shows how it is more complex, insofar as laws embrace the ideas of command, duty and sanctions. Then he shows that positive law is distinguished by the concepts of sovereignty, subjection and independent political community. At each stage he indicates where the dividing line is to be drawn and not only what comes within it, but also what is to be excluded by it and why. There are rules (improperly termed laws) which govern the growth and move­ ment of inanimate bodies, but these will not be regarded by Austin as laws, because there is not the intelligence to conceive the p urpose of the laws - there is not the will to act upon in these latter instances. So we have the emergence of a very carefully developed struc­ ture, which is gradually given increasing complexity - while at the same time careful explanations are given as to why the structure is being developed as it is, both in terms of why it covers what it does, and why it excludes what it does. He not only tells us of the nature of the distinctions that he was employing and how they fit into the overall structure, but he also emphasises frequently the manner of their connections with each other - he not only discusses command, duty, and sanction separately and in detail, but he then adds that the terms are inseparably connected. Even then, he uses very precise language to tell us about the manner of that connection: Each of the three terms signifies the same notion; but each denotes a different part of that notion, and connotes the residue. (1 885:92, emphasis in original)

He makes a quite similar point at the level of his most general distinctions - we have to understand the differences between ' posi­ tive law', 'positive morality', and 'Divine Law' (this latter is otherwise referred to as 'ethics' or 'natural law') but then we have to understand that they are 'the inseparably connected parts of a vast organic whole' (1885 : 1 7) . Indeed, he states explicitly that 'to explain their several natures, and present them with their common relations, is the purpose of the essay on which the author is employed' ( 1 885 : 1 6) . In other words, the analysis (explaining their 1 17

Robert N. Moles several natures) is intimately tied into the synthesis (presenting them with their common relations). Each term is introduced and explained - often at length; its relationship to the overall structure is clarifIed, as is its relationship to the other terms that have been discussed so far. Not only this, however, but we are also told along the way which other legal theorists have employed the same terms differently, and why Austin has chosen to employ them in the way he did in preference. He points out, for example, that Locke, Bentham and Paley em­ ployed the term 'sanction' to include conditional good as well as conditional evil, but this seemed to Austin to be 'pregnant with confusion and perplexity' (1 885:90) . In discussing the way in which he distinguishes between a law and a particular command, Austin observes that 'a different line of separation has been drawn by Blackstone and others' (1885:94) . Whether or not we would agree with the particular choices Austin made in the development of his views on law, what we cannot doubt is that he made strenuous efforts to retain a coherent intellectual grasp on the whole fIeld of his endeavour. It is important for our present purposes to appreciate the extent to which Hart's and D workin's approach differs from this. Austin was developing this conceptual framework in order to do some­ thing about the confusing and inconsistent way in which people use language - he actually believed in social and intellectual progress and change. Hart, by contrast, gave the impression at times that he was merely trying to reflect the diversity of language and the way in which words were used. Contrary to what MacCormick says, Hart did not want to change social practices - he wanted merely to reflect their diversity. Hence he described his essay as one of 'descriptive sociology', although as we now recognise, it wasn't really sociology at all. Like his successor, when he wanted to refer to social practices, he made them up to suit the case. It may of course be doubted whether there was anything revol­ utionary or even new in what Hart was doing - he certainly appeared to be none too clear on this himself. In his discussion of analytical jurisprudence in the article in reply to Professor Boden­ heimer, he points out that important aspects of the subject had been quite neglected: these remained to be revealed by a more patient examination of

118

The Decline and Fall of Dworkin's Empire legal concepts and legal language with new tools and with a new sensitivity to logical and linguistic distinctions. (1957:958, emphasis added)

The problem, Hart points out, is that of 'a frontal attack on single words', or that we should abandon 'the attempt to defIne single words' in favour of a different technique which is 'a very old technique . . advocated by Bentham' (1957 : 96 1 , emphasis added). It is clear from the preceding discussion that the object of Hart's criticism was Austin's work (or at least, as he said, an improved version of it). However, to suggest that Austin advocated any attempt to defIne single words is to ignore the heavy emphasis throughout his work on the interdependence of the concepts he utilised. It also seems hard to reconcile what Hart says on one page about the need for 'new tools' with what he says three pages later about it being 'a very old technique'. It is clear that in Hart's approach, the superficial reconstruction of earlier theories - and the contradictory, confusing and often trivial observations and questions - are presented as subtleties and refinements. This is an approach which we find later in Dworkin's work. As we stumble through his Empire we find him saying 'we need some distinctions' (1986:3), and 'we need yet another distinc­ tion' (1 986:285). We see him discussing the different types of interpretation without making it at all clear what the differences were between them, and we also find him doing this with the different types of obligations (1 986:196) . In fact, if we look to the index of Law's Empire we find a veritable catalogue of entries under 'distinctions' (1 986:458) . Yet there is no attempt to develop these distinctions in a systematic way, as Austin did. If we compare Austin's careful approach with that of Dworkin, we see that in D workin's view we have to look to the principles behind past political decisions, but we also know that we can depart from them. We know that there is an important distinction be­ tween principles and policies - but the distinction can be collapsed. We know that 'integrity', 'fit', and ' the best it can be' come into it, but quite what difference they make is difficult to ascertain. The unintended consequence of this new approach is that it debases the currency. People have been given what it is claimed are good reasons to stop reading the earlier writers, yet may feel that much of what comes forth from 'modern writers' reminds them of the dilemma faced by the patient of Dr. Sacks who was suffering from .

119

Robert N. Moles short term memory loss (Sacks 1 985: chap. 1 2) . Not being able to remember where he had come from, he was only able to keep at bay that existential dread of not knowing who he was by keeping up an unceasing, and to others, meaningless and frantic mono­ logue. He felt compelled to fill the void with a constant noise, which may well have lacked 'meaning', but fulfilled an important function. He had constantly to keep recreating the world in which he lived. With no past, no capacity or time for reflection, the pressure to recreate his existence at every moment meant that he constantly lived with fear and confusion. The ideas he had were of necessity fleeting and confused. Unable to remember them, he was unable to retain them. Each one was new and individual and constantly being lost. Words such as structure, system and coherence would have very little meaning to him. As Sacks points out, after observing that Mr. Thompson, ' with his ceaseless, unconscious quick-fIre inventions continually improvised a world around him' (1986:104) : A man Ileeds [to see his life as part of] such a narrative, a continuous inner narrative, to maintain his identity, his self. This narrative need, perhaps, is the clue to Mr. Thompson's desperate tale-telling, his ver­ bosity. Deprived of continuity, of a quiet, continuous, inner narrative, he is driven to a sort of narrational frenzy - hence his ceaseless tales, his confabulations, his mythomania. . . . Unable to maintain a genuine narrative or continuity, unable to maintain a genuine inner world, he is driven to the proliferation of pseudo-narratives, in a pseudo-continuity, pseudo-worlds peopled by pseudo-people, phantoms. (1986:106, em­ phasis in original)

Reading Law's Empire reminded me very much of Mr. Thompson and his plight. Only with Dworkin it is the willful abandonment of all that has gone before, rather than a lack of capacity, as in Mr. Thompson's case. In Law's Empire, ideas were introduced, toyed with for a moment and then passed over. Unable or unwilling to study real cases (those referred to were often seriously misunder­ stood) (Lee 1 988:278), we came to inhabit a world where we could rewrite what others said on the basis of imagined conversations. These conversations were to be all the more effective when the other party was ' long since dead'. Ins tead of studying any real societies, we imagined static societies that suddenly and inexplica­ bly started changing. Instead of reading literature we invented 1 20

The Decline and Fall of Dworkin's Empire chain novels and chain novelists. Unable to appreciate the nature of the judicial role, we invented superhuman judges and talked of them instead. We added to the mixture mad philosophers broadcasting their lectures from sound trucks and mad farmers burying their priceless collections of Renaissance paintings under deep straw beside the railway tracks (Dworkin 1986:282). To avoid the cognitive disso­ nance which might ensue otherwise we spoke of pleasant things like 'integrity' and 'fit' and 'being the best it can be all things considered'. This is much in accordance with some contemporary views as to what constitutes ' doing philosophy' . In the pages of Philosophy and Public Affa irs - to which Dworkin is a frequent contributor (as well as being on the editorial board for a number of years) we find other people doing similar things. Judith Jarvis Thomson, for example, thinks that we shall understand the problems of abortion by im­ agining people who are kidnapped and rendered unconscious. Then when they recover they fmd themselves back to back with an unconscious (but famous) violinist - suffering from some kidney ailment - whose circulatory system has been plugged into that of the kidnapped person. Can the violinist be unplugged? Or what about someone trapped in a tiny house with a rapidly growing child so that they are in fear of being crushed? Or what if people seeds blow about in the air, like pollen, and come in through the window and take root in the carpet - does the person-plant have a right to the use of the house, or can you vacuum the living room carpet as usual? (Thomson 1 971 :47) Approaches such as these seem to me to be a poor attempt to substitute an utterly fantastic and rather tasteless fiction for philosophy - and has the effect of trivia­ lising the subject matter with which it deals . For Dworkin, difficulties such as how things fit with the principles of previous cases were dealt with by saying that they could sometimes be abandoned. Why we should have to do this when we could just as easily 'constructively interpret' them I know not. I do know that the constant conjunction of so many meaningless tests and fantasies gives me the feeling of travelling fast but going nowhere. If Dworkin wishes to ignore an author's intentions and to substitute for them intentions of his own, whether or not they are dressed up as 'inte­ grity', 'fit' and 'the best they can be', then of course one could have an uninterrupted Dworkinian line of thought from the beginning of time until the present day. This might be fun, fiction or it might be megalomania; it must surely rank as a very poor form of scholarship. 121

4

Is Hermes Hercules' Twin? Hermeneutics and Legal Theory Costas Douzinas, Shaun Mc Veigh and Ronnie Warrington

I

Dworkin's theory attempts to provide answers to two persistent problems of both liberalism and positivism: how to integrate theory and practice in law and how to understand the use of values in legal theory and adjudication. His major work, Law's Empire, is concerned with the same issues that have long dominated liberal legal jurisprudence; the (Kantian) question 'Quid est juris?' frames the book. Dworkin's contribution is to move the jurisprudential exercise from the level of rules and the grammar of the legal system in the abstract to the act of legal interpretation and application. The legal edifice is treated as a meaningful and purposeful whole, and legal action, in particular adjudication, is treated as a meaning-seeking and purpose-imposing interpretation - in other words, as a herme­ neutics. What we propose in this essay is to make explicit the relationship between hermeneutics and D workin's theory and explore the stakes behind this belated discovery by American jurisprudence of an old continental philosophical tradition. We begin by outlining certain features of hermeneutics that will indicate why the tradition of interpretation is of interest to lawyers, examining in particular the contribution of Gadamer, the main contemporary exponent of hermeneutics. We then raise the question of the critical stance of hermeneutics and review briefly the debate between Gadamer, Habermas and Ricoeur. Sections IV and V place D workin's theory within the tradition of hermeneutics. We suggest that Dworkin fails to show sufficient sensitivity to the critical aspects of the

123

Costas Douzinas, Shaun Mc Veigh and Ronnie Warrington tradition. Finally, in attending to Dworkin's text, we fmd it under­ mining his own claim to have introduced the hermeneutic tradition in to law.

II

Modern social thought since the Enlightenment has come to be dominated by conceptual distinctions such as fact and value, truth and taste, techne and praxis, individual and society, freedom and coercion, reason and prejudice. Legal study is also saturated with these bipolarities: the subjective/objective opposition bedevils the law of tort; the fact/value opposition is translated into the is/ought distinction, and now principles are routinely distinguished from policies (Dworkin 1 978). Truth and taste are rigorously separated as the law tries to concern itself with the one while denying the place of the other. But this process of bifurcation is always ac­ companied by the opposite urge to reconcile, unify and totalise. Intersubjectivity, cultural exegesis, and textual interpretation are some of the rallying cries of the movements that promise the collapse of the key oppositions on which much thinking in the social sciences, including law, has depended. In the midst of this, the art of hermeneutics has acquired some­ thing of a cult status in the humanities and social sciences. Kuhnian epistemology, postempirical and antipositivist philosophy, cultural anthropology, ethnomethodology, and sociology have started to approach social phenomena as clusters of meaning to be understood with an eye to their interpretative possibilities, rather than as 'objective' data, or indices of underlying laws to be explained. Hermeneutics has been resurrected, reassessed and put to a double use; fIrst it has questioned the positivist, rationalist social scientifIc certainties; but second, and somewhat ironically, it has also spear­ headed the last, rather desperate attempt to save the notions of objectivity and truth. 1 Hermeneuein, a Greek word, means to interpret, to understand 1 . There are several introductions to hermeneutics and its use in the social sciences and humanities. See among others, Hoy 1 987, Bleicher 1 980, Thompson 1981 and 1984. Wachterhauser 1986. For the use of hermeneutics in literary criticism see Eagleton 1976. For a general critique of the use of hermeneutics and aesthetics in legal theory see Douzinas and Warrington (1991 :Chap. 1-3).

1 24

Is Hermes Hercules' Twin? the meaning of texts. The term derives from Hermes, the messen­ ger of the Gods, the mediator between the divine and the secular; his task, in part, was to interpret the wishes of the one to the other. Hermeneutics, in a general sense, is the theory and practice of explication and interpretation. It is hardly surprising that the latest hermeneutical bonanza has penetrated legal thinking, to an extent revitalising it, for hermeneutics seems to be at the heart of legal work, academic and practical. 2 Indeed, according to Gadamer, the father of contemporary philosophical hermeneutics, legal hermen­ eutics is the model of hermeneutics in general (Gada mer 1975:292) . The turn to hermeneutics appears to solve, or at least bypass, the major problems that legal positivism has always faced. Positivism takes the sentences of the law as the object of study, but its sententiousness has never provided a satisfactory basis for deter­ mining the meaning of legal pronouncements. Hermeneutics does not solve the problem of the meaning of specific sections, judg­ ments or legal documents, but it allegedly instructs us on the necessary protocols for determining meaning. Indeed, for Gadamer, the hierarchy is quite clear. 'There is an essential connec­ tion between legal hermeneutics and legal dogmatics, in which hermeneutics has the more important place' (Gadamer 1 975 :294) . This switch from interpretations to the theory of interpretation holds great attraction for j urisprudence. In the U. S . , in particular, the interest in hermeneutics was rekindled as a result of an impasse. In a legal culture obsessed with constitutional meaning and adj udi­ cation, the realisation that both judges and theorists disagreed fundamentally on the correct interpretation of the Constitution was traumatic. Thus the move from meanings to the production of meaning can be seen as a return to basics, but also as a defensive strategy; people may not agree on what this or that amendment means, but at least they should know that they share the same protocols - which, although they do not guarantee one right answer, can regulate the act of interpretation, and guide us through the canonical texts. Suddenly, a large number of writings on legal hermeneutics, and even a 'Hermeneutics Reader' (Levinson and Mailloux 1 988) appeared in the U . S . As Hutchinson puts it: 'Con­ stitutional scholars have become absorbed in the quest for the 2. For a brief history of the legal hermeneutic tradition see D.R. Kelly (1983) pp. 644-68.

1 25

Costas Douzinas, Shaun Me Veigh and Ronnie Warrington hermeneutic grail - namely, the search for an appropriate set of methodological principles with ethical intuitions' (Hutchinson 1 989: 1 65) . In jurisprudence, Dworkin's work takes the herme­ neutic step. We suggest, however, that this last-ditch effort to stabilise (plural) meaning in a world that has lost faith in the post­ Enlightenment certainties will prove implausible. (Douzinas and Warrington 1 991). For hermeneutics understanding and truth are not based on the timeless and wordless intuitions of an eternal transcendental sub­ ject. On the contrary, all understanding takes place in context; it is historical and linguistic. To understand is to stand in history and to speak in language. History and language are the two horizons of being, of thought and understanding. The subject is 'thrown' into history. 'Man' always fmds himself in media res, a being pitched in the middle of things, in the waters of an ancient river. The being in history, what Heidegger called Dasein (being there) is a fmite, changeable being. We are our history, a function of our tradition and community, a creation of those customs and practices and prej udices in which we fmd ourselves. Our past opens up the possibilities we experience but also limits the ways we understand the present, and thus organises future projections and the world. As Gadamer has put it, 'understanding itself is not to be thought of so much as an action of subjectivity but as entering into an event of transmission in which past and present are constantly mediated' (Gada mer 1 975:258) . It was theology and jurisprudence, two predominantly scriptural disciplines, that initially developed and practiced the art of inter­ pretation. ' [H]ermeneutical theorising was confmed almost exclus­ ively to two domains where correct interpretation was a matter of life and death (or Heaven and Hell) - the study of scripture and the study of law' (Hirsch 1 972: 1 9-20) . But the art of hermeneutics went further. 'Everything written is in fact in a special way, the object of hermeneutics' (Gadamer 1 975:336) . The additional insight was that understanding and interpretation are not just textual practices. 'The ability to understand is the fundamental endowment of man, one that sustains his communal life with others' (Gadamer 1 975:21). Heidegger had turned understanding from a method­ ological principle into an ontological category, the fundamental predicate of human existence. Gadamer explored and extended his teacher's insight. All attempts at understanding society, or com1 26

Is Hermes Hercules' Twin? menting on its operations, could be brought under the long arm of the law of hermeneutics. Whether we are trying to understand something as complex as a series of statutes, or Finnegans Wake, or something as simple as the instructions from a set of traffic lights, interpretation must take place. Indeed, the possibility of immediate understanding never exists. When confronted with a text we are always at one remove, at a distance. Texts lack the immediacy of face to face encounters and as a result they appear as more or less distinct in time and alien in meaning. To make sense of a text we must overcome that distance. This act of overcoming is possible because we live in history and tradition. Gadamer claims that we bring to the texts we interpret our preformed and linguistically mediated understandings and preju­ dices. Human beings find in the language, customs and institutions of their community a given body of materials which, as in learning to speak, they make their own. The Enlightenment claimed to have replaced the authority of tradition, and of prejudice, with the allegedly eternal protocols of reason, which stand outside history. But, according to Gadamer, the hostility to prejudice is itself rooted in the prejudices of rationalism. The universality of reason is the greatest prej udice of the Enlightenment. Reason is itself con­ crete, historical, what is accepted as reasonable within a particular (linguistic) tradition. But this rehabilitation of prej udice and tradition is not, for Gadamer, an apologia for the univocal power of the past. Preju­ dices constitute our ability to experience and are the bases of our openness to the world. They are not false judgments, but fore­ judgments, j udgments given before all evidence is in, preliminary verdicts. All understandings take place against them. In this sense we cannot occupy some neutral vantage point outside our own history and tradition. When confronted with a text, we can only approach it from our own particular place and perspective. Gadamer claims, however, that this is not a case of radical relativism; his hermeneutics avoids both subjectivism and objectivist rationalism. First relativism; Gadamer argues that as fully historical beings we bring to the text not just our own prej udices but also the ideas and knowledge accumulated in the tradition to which we belong. In other words, we are not passive transmitters but active mediators between ourselves and the tradition from which the text reaches

1 27

Costas Douzinas, Shaun McVeigh and Ronnie Warrington out. But second, as we come to understand and assess the object, our own prej udices are reassessed and amended. We come to create a third shared language and understanding with the text. This is of course an application of the wider principle of the hermeneutical circle. The circle is a metaphor for the dialectic of general and particular. The part can only be grasped in the light of the whole entity, but the whole, too, can only be understood in the context of its parts. To understand a novel we develop certain expectations and project on it a provisional meaning. We assess in advance its genre, plot, narrative and characters. And in the light of these anticipations we make sense of its parts as we progress. But this projection is continually reassessed; the more we grasp the drift of the text, the more its chapters and characters reveal their secrets. The operation assumes that the text forms a unity, a consistent whole, that allows the continuous readj ustment between part and whole and shows certain interpretations to be better than others. The obvious objection is that if this is not a vicious circle, it has a self-fulfIlling character. Only the assumed unity and completeness of the text makes interpretative choices possible. In other words, the original projection of certain characteristics onto the text will determine and validate the later interpretations. Gadamer's re­ sponse here is an act o f faith that posits the completeness and unity of a text as a rule. We are asked to assume that a text is true, and that it therefore has something to teach us. Thus the anticipation of formal completeness is coupled with a gesture of goodwill towards the text. When Derrida, in an exchange in 1 98 1 , challenged the basis of this claim, Gadamer's answer was that 'one does not go about identifying the weaknesses of what another person says in order to prove that one is always right, but one seeks instead, as far as possible, to strengthen the other's viewpoint so that what the other person has to say becomes illuminating' (Gadamer 1 989b:55). This charitable attitude is only provisional and may be readjusted or jettisoned completely. But unless we are prepared to approach the text in good faith we will not be able to grasp its meaning. Gadamer's answer to the opposite charge of objectivism links hermeneutics with the wider linguistic turn in contemporary phil­ osophy. For Gadamer, all being is mediated by language. We discover ourselves in language, thought is experienced preemi­ nently linguistically, language is the medium and the model of all social relations . But language is not solely an instrument of ex1 28

Is Hermes Hercules' Twin? pression and communication. It rather constitutes the world as an ongoing dialogue between past and present, and creates an inter­ subjective network of semantic projections. In language the world becomes meaningful, and necessary common sense understandings emerge. 'Being that can be understood is language' (Gada mer 1975:450) . But meaning is never fully retrievable. Unspoken meanings, past voices, present ambiguities and future possibilities inhabit the linguistic fIeld, and create the possibility of alternative readings. Language carries in it '. . . the infinity of the unsaid' (Gadamer 1 975:425) . With this recognition, Gadamer reintroduces an element of interpretative freedom. Thus hermeneutics claims to acknowledge both the creative character of interpretation and its constrained nature, which allows the emergence of meanings relevant to us. Language is understood as a developing Platonic dialogue. A text understood, therefore, belongs neither to the author nor to the reader. It has created a common language and a shared view of a topic, subject, or event. In the dialogue between the text and its tradition and our own position and tradition, we always understand differently. This is our 'effective history'; we come to know cultural objects in their otherness, an otherness that affects our present concerns . It is played out in acts that fuse the texts and our horizon into a common third. 'To recognise oneself (or one's own) in the other and find a home abroad - this is the basic movement of spirit whose being consists in the return to itself from otherness' (Gada mer 1 975 : 1 5) . Gadamer therefore denies that meaning is objective, and can be discovered somewhere in the text. But, as a part of tradition, the text is 'a harmony of voices ', a fusion of previous opinions and interpretations that have been handed down to us. In other words, Gadamer seems to have replaced the allegiance to personal preju­ dice or to meanings given in the text with an allegiance to the past. Both the old interpretations, to be found in the text, and the new understandings to be achieved from it are creations of the over­ bearing tradition. The attempt to answer the charge of interpret­ ative relativism leads to an all-encompassing and inescapable tradition, and the negation of interpretative freedom. Hermen­ eutics moves in a series of concentric circles from objectivism to subjectivism and back. The hoped for reconciliation seems elusive. 1 29

Costas Douzinas, Shaun Me Veigh and Ronnie Warrington III

Despite Gadamer's claims to have overcome the twin dangers of subjectivism and objectivism a suspicion remains that too much is conceded to the possibility of mutual and genuine agreement. Indeed, for hermeneutics to solve the large problems it sets itself, it has to be a critical activity. But both Habermas and Ricoeur dispute that Gadamer's philosophy in its present form can become a critique. According to Habermas, Gadamer is unable to distinguish be­ tween those forestructures and preunderstandings that are the necessary foundation of all understanding, and the unnecessary preju­ dices, which prevent our forming a critical perspective. Critique involves both a self-reflexive and a transcendental moment. A critical hermeneutics should both reflect on the preconditions of understanding and expose and criticise the constraints they impose on human activity. The emphasis of philosophical hermeneutics on an all-encompassing tradition neglects its outside, the material conditions that shape tradition, and the crystalisations of social inequality and domination that permeate both language and com­ munity. But to understand ideological distortions we must aban­ don tradition and symbolic meaning, and occupy an external position. In other words, we need a theory of society that brings to the surface the repressed pathology of social relations . Hermen­ eutics cannot succeed because it remains totally subservient to tradition. In summary, Habermas's accusation is that: 'Gadamer is motivated by the conservatism of that first generation, by the impulse of a Burke that has not yet been turned against the rationality of the eighteenth century; he is convinced that true authority need not be authoritarian' (Habermas 1 986:268) . For Gadamer this critique is totally misplaced. On the one hand the confrontation with our historical tradition is always a critical challenge to it. But on the other it is futile to try to mount a total challenge to tradition. As fully historical beings we cannot achieve some transcendental rationality or universal norms outside history and language to turn them into a universal method or content of critique. Critique is always possible, but has to start from tradition. Indeed, even the 'outside' of tradition, those material conditions and hierarchies that, according to Habermas, influence symbolic meaning and language, are potentially hermeneutically retrievable. To influence our lives at all they must enter our world and become 1 30

Is Hermes Hercules' Twin? part of our tradition. History, art, texts norms, and symbolic structures are a kaleidoscope of voices and meanings. Critical acts of interpretation will prize out discordant voices. Critique itself is the dialogue that we are. Critique, then, exists, but only as a moment in the dialogue that tradition allows. But as tradition creates all meaning it is impossible either to retrieve fully all its presuppositions, or to plan consciously its transcendence. This reply, though, merely reinforces the charge of conserva­ tism. At best, Gadamer has replaced an absolute notion of truth with a more open-ended one. Gadamer is a historicised and egali­ tarian Hegelian who knows that ' . . . the self-same and unchanging truth can always be understood differently and there are no grounds for saying that it is understood better by one of its finite bearers than it is by another. The absolute never assumes absolute and canonical form' (Caputo 1 987: 1 1 1) . But what happens when con­ flict breaks out, when values are no longer shared, when the tradition is not a seamless web? Gadamer's flexibility has only limited possibilities. The critical upshot of hermeneutics comes to an end at this point. Paul Ricoeur's intervention in this fierce polemic is designed to rescue the best of both sides. He tries to show that a critical hermeneutics is both possible and necessary, indeed inevitable. Ricoeur argues that hermeneutics must remind critique that all criticism starts somewhere, and that somewhere has to be tradition. An interest in emancipation, Habermas's central concern, will remain merely a pious vow , if it does not l.mbody the possibility of reawakening communicative action. The only concrete support for reawakening such action can be found in a creative renewal of the cultural heritage. The possibility of critique lies in the interaction between autonomous, already partly formed cultural heritages, artifacts and texts and autonomous, already partly formed subjects and readers . Both are only partly formed and both will change as the result of the 'reinterpretative process'. The critique of ideology and its interest in human emancipation can only be carried out in this form. Ricoeur's rereading of hermeneutics as critical is a kind of grammatology based on the nature of writing and its differentia­ tion from speech. Writing gives texts a threefold autonomy. First, texts are autonomous from the intentions of the author. The text is distanced from its writer and circulates without his or her comfort­ ing support. Second, texts are autonomous from the receptions of 131

Costas Douzinas, Shaun Mc Veigh and Ronnie Warrington their original audience. And finally they are autonomous from the economic, social and cultural context of their production. Texts mediate between meanings and readers. A reading, the 'referential moment', as Ricoeur calls it, refers not to an intention hidden in or behind the text but to 'a world unfolded in front of it' . This openness makes the text a 'resource against any given reality' (Ricoeur 1 986:331) . And as readings unfold not the hidden world of the text, but possibilities in front of it, the reader is released from the tyranny of subjectivism. 'To understand is not to project oneself into the text but to expose oneself to it' (1986:332). The reader, in the act of reading, is freed: '[I]n reading I "unrealise myself" (1986:332) . In a word, distanciation, the essence of dis­ course, creates also the potential for critique. Thus, every reading is an act of subjective imagination that places the subject in the world opened by the text and gives him or her the necessary resources to return critically to his or her own world. 'Reading is like the execution of a musical score; it marks the realisation, the enactment of the semantic possibilities of the text' (Ricoeur 1 981 : 1 59). But there is a sneaking suspicion that Ricoeur's argument is merely stating what it is trying to prove, that hermeneutics is indeed a critical discipline. Textual analysis may imply a form of overcoming of distanciation, but that does not necessarily equal a critical overcoming. On the contrary, if we were to accept one of Ricoeur's primary ideas, that there is no direct access to history and that history is, strictly speaking, unverifiable, then the threefold autonomy of the text seems inevitable. Fictions and history and readings are the work of imagination. Perhaps this is so; but it is a necessary imagination, not necessarily a critical one. There is a similar problem in relation to Ricoeur's attempt to deny the dangers of subjectivism. He accepts the polysemy of texts, but claims that it is possible to produce ' methods for the validations of competing accounts' , for some accounts will be more probable than others (quoted in Thompson 1 984:59) . But as Thompson points out, Ricoeur is unconvincing, 'can we take it for granted that there are evident standards - "criteria of relative superiority which may be easily derived from the loci of subjective probab­ ility" as Ricoeur blandly announces at one point - by means of which conflicts of interpretation can be arbitrated and resolved?' (Thompson 1 981 :20 1 ) The clear answer to this question must b e ' n o ' . There i s an untidy 1 32

Is Hermes Hercules' Twin?

gap in the steps in both arguments, just as notions of 'more probable than others ', and 'methods for the validation of compet­ ing accounts' are plainly contentious, unargued, and perhaps un­ arguable. Hermeneutics may be critical. But the claim that it is necessarily so because it is the art of understanding texts freed from the prison of closed meaning is unconvincing. Hermeneutics can equally be bland, accepting and uncritical.

IV

Dworkin's overall project has been motivated by the desire to mediate those bipolar oppositions (fact/value, principle/policy, public/private, etc. ) that have plagued legal theory, and in doing so to answer what he sees as the embarrassment oflegal positivism: its halfhearted admission that unbounded judicial choice and context dependent, contingent factors influence adjudication, his central instance of legal action. For Dworkin the fruitless debates on the declaratory or creative role ofj udges, on judicial activism or on constructive interpretation are the result of positivism's vaccilation between an objectivist theory of rules and its opposite, a potentially unconstrained, sub­ jectivist assertion of 'strong judicial discretion'. Steering a middle way between formalism and relativism, Dworkin attempts to bring together his liberal belief in freedom and his paternalistic view of the law as a closed, coherent system of principle. In his earlier work the reconciliation was achieved through the assertion of an underlying 'grammar of principles'. All legal action and meanings are allegedly produced through the application of this code to everchanging contexts and, in this sense, all legal problems have a 'right' answer. But judges are free, within the constraints of institutional and historical 'fit' to develop their own theory of political morality and accordingly a code of principled legal meanings. In the later, imperial version of his project, Dworkin's attempt to reconcile subject and object and value and fact is transformed into a theory of interpretation. The attraction of philosophical hermen­ eutics for this enterprise is obvious. Despite limited reference to Gadamer and the tradition, Law's Empire is a stylistically stilted application of Gadamerian hermeneutics to law that has all but lost the critical sting of the original. 133

Costas Douzinas, Shaun Mc Veigh and Ronnie Warrington The outline of the argument is quite simple. Law is an interpret­ ative exercise. Legal interpretation resembles the interpretation of literary texts, which can therefore be used as a model for under­ standing the law. At the centre of the edifIce lies an aesthetico­ hermeneutic hypothesis. All interpretation is constructive - it im­ poses 'a purpose on an object [of art] or [social practice] , to make it the best possible example of the form or genre to which it is taken to belong' (Dworkin 1 986:52). In its earlier transitional version, literary theory was presented as a form of 'interpretation of a text that attempts to show it as the best work of art it can be, and the pronoun insists on the difference between explaining a work of art and changing it into a different one' (Dworkin 1983:253). Interpreters may differ on the purpose or value of an assumed common enterprise, like art or law, and different enterprises will have differing purposes and values. Their attempt to make the object the best it can be will, therefore, depend on those diverging perspectives on purpose and value. Literary interpretation is ac­ cordingly theory and value dependent. So too is law as interpreta­ tion. The judge must construct a theory of political morality that will show the law in its best possible light. The theory must both fIt the institutional history of the community's law and include norm­ ative claims about the purpose of the enterprise. Judges may reaso­ nably differ on this, as do art critics on the question of where aesthetic value lies . The emphasis on the reader is here quite pronounced. D workin categorically denies that intentions of authors can be raised into a global basis for meaning or that their discovery can become the aim of interpretation. It is interpretation that makes the object the best it can be, and to do that it must ascribe purpose to the enterprise. A particular interpretative position, a conception of interpretation, may move authorial intention to centre stage. But that would still be just one interpretation of what is valuable in art, rather than a global concept or theory. D workin argues along similar lines when he attacks the 'meta­ physical' position he calls 'external scepticism'. Allegedly, such sceptics claim that interpretations and moral opinions are subjective preferences that cannot be proven, or shown to exist 'objectively' , 'out there' , i n some 'ideal' world. But this i s nonsensical, claims Dworkin, since the 'practices of interpretation and morality give [to interpretations] all the meaning they need or could have' and the 134

Is Hermes Hercules' Twin?

demand of any further, noninterpretative proof must necessarily appeal to some metaphysical realm (Dworkin 1986:83). The only way in which sceptics can succeed is by giving arguments and reasons for their belief. But in doing so they necessarily adopt an abstract moral or interpretative position from which to mount their critique. In other words, their argument is either without any force because it leaves all substantive interpretations unscathed, or it is self-defeating. If interpretations are theory and value dependent, and no more, Dworkin's exercise would be a form of the dreaded scepticism. The second step of D workin's argument is meant to turn it into a closed and coherent system by transcending the various bipolarities. 'The history and the shape of a practice and object constrain the available interpretations of it' (Dworkin 1 986:52). If the first step celebrates interpretative choice the second recognises textual constraint. Their reconciliation takes the form of a hermeneutical act. It is the it of the 'best interpretation it can be' that will constrain interpretation in its interaction with the purposes the interpreter will ascribe to it. Let us examine this it. Dworkin claims that all theories of interpretation must include a formal theory of identity of their object 'in order to be able to tell the difference between interpreting and changing the work' (Dworkin 1 983:53). They must assume their text to be complete and coherent and must insist that 'all the words of the text' must be taken account of and none may be changed to make it a putatively better work of art' (1983:53). The inj unction of coherence commands that an 'interpretation cannot make a work of art more distinguished if it makes a large part of the text irrelevant, or much of the incident accidental, or a great part of the trope or style unintegrated and answering only to independent standards of fine writing' (Dworkin 1 983:254). His theory of interpretation is the hermeneutical circle in dis­ guise. The reader approaches the text as purposeful, and creates its meaning in a dialogue between the imputed purpose or value of the enterprise, and the canonical text. In Gadamer, the circle reveals the work's truth; in Dworkin it makes it the best instance of the enterprise. The various interpretations of nineteenth-century realist literature that Dworkin offers follow the circumference of this circle. 3 3. The only type of literature that Dworkin has in mind is the nineteenth-century

1 35

Costas Douzinas, Shaun Mc Veigh and Ronnie Warrington The circle enters for a second time masked as a chain. The chain novel is not a literary genre, but the second coming of hermen­ eutics. The hermeneut is upgraded from a mere reader and critic to a writer and author. What is at stake in this innocent looking reformulation? The chain novel 'genre' asserts the possibility of a harmonious interplay between the constraints of the past and the principled freedom of the present. As a chain novel it recognises the claims of the canon and the constraints of formal identity. As a chain novel it promises authorial freedom but announces its future totalisation, which, although infmitely delayed, demands of its authors to write as if theirs is the last chapter that would bring the book to a close. But furthermore, and crucially, the image of writing-as-interpretation claims that the text is a subspecies of the hermeneutical act, a recovery and a transmission of meaning. These claims are repeated in the analysis oflaw as interpretation. The best conception of interpretation, that of law as integrity, instructs judges 'to identify legal rights and duties [in the legal materials] on the assumption that they were all created by a single author - the community personified - expressing a coherent con­ ception of justice and fairness' (Dworkin 1 986:225) . The claim to textual identity is both formal and normative. It must identify and account for the whole of the legal canon, but it must also construct the canon so as to display a horizontal coherence of principle. The theory of political morality that the judge constructs to show the law in its bes t possible light must both fit institutional history and justify it 'as a single, coherent scheme of justice and fairness in the right relation' (Dworkin 1 986:21 9) . Dworkin's theory oflaw is an adaptation of Gada mer's problem­ atical assertions. However, the transformation of the formal princirealist novel, as amply shown by his examples. Modernist or postmodern novels would seriously embarrass the intended analogy between literature and law. The high modernism of Joyce, Proust and Beckett brackets reality and reference and celebrates the emancipation and free play of the linguistic sign. It has been argued, rather too hastily, that such a ttitudes have now migrated to pOststructuralist criticism, which is then seen as the transference of modernist literary devices onto theory (Ulmer 1985). The postmodern novels of Borges, Pynchon, Doctorow, Bath, Barnes and Ackroyd, on the other hand, reintroduce 'reality' and hlstory but in a highly ironical and even p arodical fashion that questions the possibility of ever drawing a clear line between 'reality' and fiction - at the very moment they try to mark it. One is tempted at times to read Dworkin's story and the chain story in it as a postmodern play of illustration, simulacra and disappearing worlds.

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Is Hermes Hercules' Twin? pIe of textual identity into the normative assertion of the principled coherence of the law as a whole is unconvincing. Dworkin's claim that he offers a theory of interpretion rather than one interpretation of adjudication ultimately fails. Hercules, the ideal judge of the theory, is also the clearest sign of its failure.

v

Within the hermeneutical tradition the belief in a right answer or indeed in a sole 'best' answer is implausible to say the least. Gadamer says, teasingly: 'In view of the fmite nature of our historical existence there is , it would seem, something absurd about the whole idea of a uniquely correct interpretation' (Gadamer 1 975: 1 07) . While clearly trying to avoid the dangers of relativism or solipsism, Gadamer asserts that there cannot be any interpretation 'that is correct "in itself" (1975:358). The difficulties Dworkin's analysis faces with the right answer have been succinctly summarised by Finnis ( 1987) . He argues that the unique COrrect answer thesis is an impressive argument for the view contrary to Dworkin's. Finnis asserts that in all circumstances oflife there are many ways of going wrong (1987:37 1 ) . But if this is correct, then equally there will be as many ways of going right, and this will apply as much to legal decisions as to anything else. Finnis's argument is that Dworkin's liberalism ignores substantive human goods; he therefore has no means of measuring or 'bal­ ancing' competing claims. One does not need to accept Finnis's equally implausible claims about the fundamental human goods in order to agree that he is right to question the whole argument that Hercules, or anyone else, can produce anything approaching a right answer. But the real problem comes when one tries to produce right answers from within the hermeneutic tradition. Instead of 'equal concern and respect' for texts and interpretations that can not be arbitrarily ranked in some rather simplistic order, Dworkin simply wishes the problem away by producing, of all things, one right answer. But in the postmodern world, interpretation is the problem. Dworkin avoids it by creating the puppet of Hercules. Dworkin's creation must be either a machine or a god. Machines can be programmed to produce right answers but not, of course, to the sort of questions that Dworkin wants to raise. A machine is not 1 37

Costas Douzinas, Shaun McVeigh and Ronnie Warrington a person, and cannot therefore indulge in the complex weighing up process that Dworkin demands of his superman, and Ricoeur demands of all interpretations. On the other hand, if Dworkin has turned Hercules from the semidivine into a god, and he is only a god (or at least an interpreter with access to divine guidance) then again he can be no human j udge. Dworkin's judge is neither human nor divine. In the suspension between the two it becomes nothing. Dworkin's creation of Hercules is a gesture - the throwing up of hands in despair in the attempt to justify the role of legal institu­ tions in western democracies. Hermeneutics claims that continuous work on the question of interpretation is necessary. This endless game cannot be expected to produce results in the way Dworkin thinks, or in the way a structured system of appeals with a final court can. Indeed those hermeneuticians who have specifically compared the interpretative process with the system of judicial appeals have concluded that 'whereas in the legal tribunal there is an accepted point at which the procedures of appeal are exhausted, there is no such point in literary criticism and the social sciences; and if ever these procedures are exhausted in the latter disciplines only dogmatism and violence ensue' (Thompson 1 984:65) . And it must be remembered here that when formal appeals in law come to an end the process of interpretation does not stop, as even the House of Lords can discover. 4 Despite his imperial edifice Dworkin only touches on the ques­ tion of interpretation in law. Hercules is created in order to solve the problems of the hermeneutic tradition, the tricks of Hermes. Hercules is turned into Hermes, by being pronounced ' Hercules' twin' (Dworkin 1 986:337) . But this devout consummation is dis­ tinctly unconvincing. The superman, Hercules, who produces 'solutions' , right answers, is what the hermeneutic tradition ex­ plicitly denies. Hermes and Hercules, far from being twins, are in fact representatives of the opposite tendencies in Dworkin's texts. Hermeneutics raises the problem of interpretation, which it can never really take beyond problematising, while D workin, appar­ ently locating his text within that tradition, produces the very result that to the hermeneutic tradition must be anathema. Hercules, at the centre of the legitimating process, is a majestic, awesome figure. Order, rule, and certainty lllay indeed be his 4. See for example, Murphy

1 38

v.

Brentwood, [1990] 2 ALL ER 908.

Is Hermes Hercules' Twin? trademarks. By contrast, Hermes is a figure of misrule and disrup­ tion. Hermes denies the legitimacy of the right answer. As Serres asks, is Hermes, the god of commerce, not also the father of comedy? 'Is he the god of crossroads, of thieves, and of secrets, this god sculpted on milestones and adorned with such conspicuous virile organs who, like Psychopomp, accompanies Don Juan to He1l?' (Serres 1980: 14) . This place of meeting, the crossroads, is a limit or edge. 'To cross the broken threshold of the work. The essential thing is indeed bifurcation' (1980:47) . This god of cross­ roads, this ' twin' of Hercules is mischievously undoing what Hercules is patiently and painstakingly putting together. Hercules tries to unite those treacherous thoughts that 'do set the word itself/ Against the word'. The duplicitous messenger is at the cross­ roads of interpretation, pulling them apart. Here, within the heart of Dworkin's theory, the superman is brought face to face with what his creator claims is his alter ego, the hermeneutic tradition, in the fIgure of Hermes himself. Dworkin's superhuman effort must collapse. Far from producing a solution, hermeneutics must deny the legitimacy of the goal. The interpretation process that is involved in any hermeneutical exercise is, or claims to be, critical. But how can this Herculean judge actually be critical? The attempt to make of something the best it can be implies strong approval. Why else make it the best? But can we at the same time seek the best interpretation of the tradition and be critical of it? We are caught in a perennial tension between the possibility of understanding the culture in which we fmd ourselves, and the need to 'overcome' that culture, to change and improve it, to move toward the emancipatory discourses urged by Habermas. Hermeneutics is always faced with this problem, and engages with it in a Herculean struggle. It is precisely at this point that Dworkin's analysis comes to a stop. But it is here that we have the condition of the problem. What does it mean to understand in any full sense? Is understanding always preformed and performed by the tradition out of which it comes, and on the basis of which new understanding is (im)possible? Or, on the contrary, is the tradition only an inevitable starting place, and nothing more? Despite the differences between them, Habermas, Gadamer and Ricoeur would of course argue the latter. In Gadamer's important notion of 'play', for example, so crucial to his explanation of truth in artistic interpretation, which then leads him to his notion of truth

139

Costas Douzinas, Shaun Me Veigh and Ronnie Warrington in the social sciences, there is the necessity of openness and freedom. Such is the inevitability of any linguistic endeavour. Dworkin at­ tempts arbitrarily to close this possibility; the attempt must be farfetched. When situated within the context of his 'appeal' to Gadamer, it becomes slightly ludicrous. In a curious way, Dworkin recognises the problem at the start of the text. He acknowledges the central role of 'reason and imagination' as the . key elements in the hunt to find right answers (Dworkin 1986:ix) . 'Reason versus imagination' might have been a better way of putting it. It is the supposed death wish of reason that may be upset by the life wish of imagination that Dworkin wants to emphasise. Imagination is the key, not to right answers, but to multiple possibilities , to the proclivity, the life-giving forces of the text, the 'rightness' of which is to be argued for and not solved, as Ricoeur suggests. It is a case of Hercules versus Hermes. One of the functions of Hermes was to act as the messenger between the human and the divine. In doing so, he (mis)represented both. The result was comedy; not rule, but misrule. This father of laughter is therefore the perfect counterpart to the pretensions of the right answers of Hercules. Explicitly as a figure, and more significantly as the tradition to which Dworkin turns, the seeds of the disunity of Hercules are sown. Dworkin's attempt to bring jurisprudence to the book of textual analysis is no doubt admirable; but the means he uses to do so seem to stop short precisely at the very place where the interesting problems start to arise. For hermeneutics, since Socrates, the dif­ ficult thing is the question, not the answer (let alone anything approaching a right answer) . 'It is the historically experienced consciousness that, by renouncing the chimera of perfect enlighten­ ment, is open to the experience of history' (Gadamer 1975:340) . And what that historical experience teaches hermeneutics is that there are no answers in anything approaching a Dworkinian sense. 'The voice that speaks to us from the past - be it text, work, trace ­ itself poses a question and places our meaning in openness ' (Ga­ darner 1 975:337) . In the hermeneutics of openness, Hermes is going to win every time in his duel with Hercules.

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5

Ronald Dworkin and the Challenge of Postmodernism Anne Barron

Ronald Dworkin has provided scholars of law with a compelling account of the process by which legal knowledge is produced and legitimated by the judicial systems of contemporary liberal democ­ racies. In a body of work extending over a period of many years, Dworkin has developed and refmed his theory of adjudication. - a theory that purports to be both a description of how judges in fact interpret legal doctrine (at least in the United States) and of how they should interpret legal doctrine if the 'rightness' of their inter­ pretations is to be guaranteed. Dworkin's mission is to describe in detail how the practice of adjudication does and should operate to produce the truth of a given legal dispute: he shows that adjudica­ tion works by filtering, hierarchising and ordering knowledge claims, disqualifying some as illegitimate or false, and elevating others to the status of law . The judicial quest for legal truth and the coherence embedded in doctrinal history is, for Dworkin, a sacred quest, beyond reproach, and indeed the only possible justifICation for the exercise of judicial power. By producing true propositions of law, judges persuade us of the justice of their decision making. One of the themes of postmodern thought, however, has been the interrogation of received assumptions concerning the relation­ ship between the generation of truth and the exercise of power. Postmodernity is characterized by a preoccupation with the pro­ cesses of exclusion and marginalization, which produce truth, unanimity, rationality, sameness - while suppressing difference. It is suspicious of the Enlightenment heritage that still informs the discourses governing social and political life, denouncing the 'totali­ tarianism' of its universalizing pretensions . Legal discourse, as a system of thought and a practice of social regulation, is perhaps a 141

Anne Barron model of the kind of approach to social relations that postmodern­ ism denies: 'vengeance against the law' (Lyotard 1 983:44) , broadly conceived, is after all the characteristic strategy of postmodern thought and politics . The aim of this paper is to suggest how the institution of law, as presented and defended by Ronald Dworkin, supports its claim to universal applicability, proclaims its solidarity with the Western metaphysical tradition as a whole, and in this way refuses 'the challenge of postmodernism'. Part I describes how Dworkin sets up his conception of the legal enterprise in opposition to that of positivist jurisprudence, and claims to reject the ruling assumptions of that tradition's understanding of law. Part II goes on to suggest that in its insistence upon the unity oflaw, the role of intentionality in the production of legal discourse, and the primacy of the subject in the explanation and justification of the legal enterprise, Dworkin's approach reproduces key features of the positivism it sets out to deny. The paper concludes with some remarks on the possibility ofa non-universalizing approach to law.

I

Dworkin's most important theses about the nature of law in modern society arise out of his rejection of traditional positivist approaches to law. Legal positivism rests upon the notion that law is a unified and readily identifiable phenomenon, distinguishable from other normative systems by virtue of its lineage, Or 'pedigree' (Dworkin 1 978: 1 7) . Thus, for John Austin, the origin of law, properly so called, is to be found in the commands of a sovereign, a determinate entity whose authority resides in its monopoly of force within a given political community, and the habit of obedience citizens display in deferring to those commands (Austin 1961 : 1-25) . For H.L.A. Hart, the law of a given political community is simply that which is deSignated as such by the 'rule of recognition' (Hart 1 961 ) . This is a fundamental master rule, the existence of which depends upon its universal acceptance by that community' s gov­ ernmental officials. Both Austin and Hart would see law as a discrete system of rules. Rules are the essence of law: that which is outside the system is not-law. Dworkin's thoroughly modern insight is that law is an infmitely more diffuse phenomenon than orthodox versions of positivism 142

Dworkin and the Challenge of Postmodernism can admit. Contemporary societies are marked by a dispersion of public power among many groups and institutions: 'political con­ trol in a modern nation is pluralistic and shifting, a matter of more or less, of compromise and cooperation and alliance' (Dworkin 1 978: 1 8) . Thus it is often impossible to isolate a single source of law-making power. Moreover, the insistence that law is a system of rules suppresses the part played by principles in legal practice ( 1 978 :22-45) . Dworkin turns on its head the traditional positivist understanding of rules as constituting the essence of the legal system, and principles as nonlegal supplements to it. In his view, principles (such as, for instance, the principle that no one may profit from his own wrong) are the building blocks of legal doc­ trine, and for this very reason the edifice is not one whose founda­ tions can be located anywhere in particular. Dworkin prefers to describe law as a web rather than a structure, woven out of innumerable elements that 'hang together rather than link together' (1 978:29) . Identifying legal principles is not a matter of discovery and description of what this or that institution has said or done. There is no first utterer: principles do not owe their existence to any particular institutional source and they are thus not amenable to any ultimate test of 'pedigree'. Principles have no pedigree: they are mongrels, congenitally impure, constructed out of a set of ingredi­ ents so dispersed, volatile and controversial that they can find no place in the traditional positivist schema. 'We make a case for a principle, and for its weight, by appealing to an amalgam of practices and other principles in which the implications of legislat­ ive and judicial history figure along with appeals to community practices and understandings' (1 978:36) . The only 'test' for law that D workin attempts to provide is not one that can yield uncontro­ versial or scientific results: 'a principle is a principle of law if it figures in the soundest theory of law that can be provided as a justification for the explicit and substantive rules of the jurisdiction in question' (1 978:66) . In other words, to identify what the law is requires an exercise, not of discovery, but of construction. All legal knowledge is interpretive: 'legal practice is an exercise in interpretation not only when lawyers interpret particular documents Or statutes but gener­ ally' (Dworkin 1 985a: 146) . Legal history does not speak directly to us; it is made meaningful only by the actions of an intermediary. Hence Dworkin's fascination with the role of the judge, and with 1 43

Anne Barron the process of adjudication in general. Moreover, in his view, adjudication, although central to the legal enterprise, is in its turn 'essentially political' (1985a:162) . Judges cannot, and do not in practice, separate the functions of deciding what a legal rule means and deciding whether it is valuable and where its value lies. This means, of course, that 'any judge's opinion about the best interpret­ ation will . . . be the consequence of beliefs other judges need not share' (1985a : 1 62) . Moreover, it seems to imply that in interpreting rules, j udges will impose their own individual meanings upon them, and thus create law, rather than drawing out meanings intended by sovereign legislatures. But Dworkin is no legal realist. Although scornful of the positivist assertion that legal propositions are merely descriptive of legal history, he is reluctant to counter this with the suggestion that propositions of law are simply ex­ pressions of what the speaker wants the law to be. Dworkin's maj or contribution to jurisprudence lies in his claim that legal interpretation is a matter neither of description nor of evaluation, but of hermeneutics. Law is an 'enterprise', a repository of funda­ mental political values, possessed of a continuity that transcends the apparently random shifts and reversals onegal history. The enterprise is to be understood as internally consistent, a coherent whole, its individual features intelligible only in terms of the purposes embed­ ded in and unifying the entire tradition. Hence, each interpretation of legal practice is political only in the sense that it is inescapably dependent upon a political theory, or in other words, a theory about which 'point or value' unifies law as an institution. It is not only the practice but the duty ofjudges to act upon such a theory in interpreting legal texts: like other government offIcials, they exer­ cise considerable power, and 'it is unfair for officials to act except on the basis of a general public theory that will constrain them to consistency' (1978:1 62) . Thus, political theory, far from providing the judge with a licence to find in doctrinal history whatever slhe thinks should have been there, constrains the process of adjudica­ tion by enabling the judge to reconstruct and act upon the unifying values embedded within that history. To fulfill this role effectively, it must include both a conception of the 'identity, coherence and integrity' ( 1 985a:160) of doctrinal history, and a conception of the principles ofjustice to which the institution of law should adhere: 'a plausible interpretation oflegal practice must . . . both fit that practice and show its point or value' (1985a:160). Correspondingly, it must 144

Dworkin and the Challenge oj Postmodernism serve both a formal function - to identify what the law is, and to determine the criteria whereby its component parts can be said to fit together - and a substantive function - to j ustify the law as consistent with the theory's principles of political morality. SignifI­ cantly, however, the theory will also include a doctrine of mistake, for 'if the history of his court is at all complex, [the j udge] will find, in practice, that the requirement of consistency he has accepted will prove too strong' (1978:1 1 9) . Adapting the Rawlsian technique of 'reflective equilibrium' (Rawls 1 971 :48-51 ) , Dworkin would give content to the concept of law by balancing a normative political theory against an existing body of legal doctrine. This process of mutual adjustment terminates in a coherent identifICation! justification of institutional history, and displays a minute part of that history as 'mistaken' . This account o f the method by which legal knowledge i s pro­ duced seems in many ways to eschew reliance on those categories of Western philosophical and j urisprudential thought most dis­ credited by the experience of postmodernity. Dworkin presents an analysis of law as diffuse, perpetually unstable, lacking the unity afforded by the certainty of origins, and traced through with fragments of its other, the nonlegal. It is never immediately access­ ible to the knower, a part of the real that can be discovered and described. On the contrary, to know what the law is, is 'always already' to have carried out an act of interpretation. Nor is in­ terpretation a straightforward matter of retrieving the subjective intention of a sovereign will, whether legislative or judicial. Dworkin emphatically rejects the 'concrete intention theory' (1 985a 38-57, 1 62-64; 1 986:53-59) of statutory interpretation, according to which the meaning of a statute resides in the conscious mental state of particular legislators at the time of its enactment. 'There is no stubborn fact of the matter -. no "real" intention fixed in history independent of one's opinions about proper legal . . . practice. . . . ' (1 985a:39-40). Likewise, in common law adjudication, the judge 'must read through what other j udges in the past have written not only to discover what these judges have said or their state of mind when they said it, but to reach an opinion about what they have collectively done' (1985a: 1 59, emphasis in original) . For Dworkin, discovering the intention behind a particular legal provision is inevitably a creative activity. There is no difference between discovering a legislative intention and determining the 1 45

Anne Barron point or value of what the legislature has done, or, in other words, applying a political theory that justifies and explains the legal enterprise. Thus legislative intent cannot be regarded as a stable fact, accessible to all in the same way. On the contrary, it is a contested concept (1978: 1 05-1 1 0) , and because it can only be con­ structed with the aid of a political theory, different conceptions will exist as to what has been the purpose behind a legal provision. The concrete intention theory is one conception rather than a total explication of the concept of legal interpretation, 'a conception which claims that the best political theory gives the intentions of legislators and judges a decisive role in interpretation' (1985a: 1 63) . Dworkin himself does not accept this claim. To insist that the truth value of a legal proposition rests upon its association with an original meaning or intention would be to reiterate the positivist thesis that true propositions of law are those that simply describe decisions taken by people or institutions in the past. But this theory is implausible. The modern legislature is as fragmented as any other social grouping. Legislative decisions are never more than pro­ visional compromises in a dynamic process of conflict and realign­ ment among many individuals and interest groups. Thus any attempt to forge a single intention from the story of a typical bill's progress through, say, the British Parliament could only end in failure; it would surely be more likely to prove impossible to find any collective intention at all on most important issues. If it were possible, disagreement among lawyers and litigants as to what the law is on these issues would presumably never arise. Yet, as Dworkin recognises, the legal system would be inconceivable without disputation, and there is no way of putting an end to it by positing a single legislative intent, understood as brute psychologi­ cal fact (1985a:43-48) . The language of intentionality, then, seems to have been elim­ inated from Dworkin's description of adjudication. If it appears at all, it is as a shorthand for what he terms the 'purpose' embedded in the legal enterprise, rather than the emanation of an originating individual mind or group of minds: 'an interpretation is by nature the report of a purpose' ( 1 986:58) . Any object of interpretation, even those, like social practices, for which there is no historical author, must be seen as 'the product of a decision to pursue one set of themes or visions or purposes, one "point" rather than another' ( 1986:58-59) . Thus the legal enterprise can itself be regarded as 146

Dworkin and the Challenge oj Postmodernism having an 'intention'. This is not merely the sum of all concrete intentions of all past legislators, not could it be, for concrete intentions can yield only a plurality of conflicting meanings. Rather, it is an abstract intention, or a set of these, the determina­ tion of which is a matter of construction, of giving shape to a more global and transcendent purpose implicit, though not necessarily conscious, in the actions of past legislators and other legal actors (1 986:56; 1 985a: 1 63) . The task of constructive interpretation rests with the judge, and here again Dworkin seems to come up with a conception of the judicial role that transcends the traditional categories of positivist jurisprudence. The judge occupies an ambiguous role within ortho­ dox positivist theory, alternately effaced by, and competing with, the sovereign - author of the law. When applying a legal rule, the judge becomes inert, deferring to its clear and incontrovertible meaning, the intention of its author. When operating outside the system (where a case arises for which no existing rules seem appropriate, or where those that do exist are vague and uncertain) the judge comes to life as an independent and unfettered creator of law. Dworkin's judge, however, operates neither as the passive and obliging channel from the source oflegal truth, nor as a dangerous outlaw, stalking the terrain not yet conquered by the legislature. He is Hercules, ( 1 978: 1 05-30) the hero of a narrative. Although a part of the very institution to be interpreted, he is nevertheless not erased by it; indeed membership of the institution provides the capacity to have an active role within it. The subject of the enunci­ ation, the one who speaks, is at the same time an obj ect, one who has been 'spoken' (Lyotard 1985: 33). The enterprise of which he is a part has given him a name: he is a judge, and as such is defmed by the institutional rules and practices which set the limits to the competence of the judiciary. The judge is also one who has been spoken to: he is the addressee of the interlocking narratives which comprise doctrinal history and which he is obliged to pass on (Lyotard 1 985:34) . Thus, in Dworkin's account of adjudication, the judge can never exercise autonomy with respect to the discourse of law; he is never free to legislate. Rather, he claims to belong to a tradition, to inhabit a network of institutional understandings and expectations. Dworkin graphically characterizes judicial activity as analogous to that of a participant in the exercise of constructing a chain novel: 1 47

Anne Barron Any judge forced to decide a lawsuit will find, if he looks in the appropriate books, records of many arguably similar cases decided over decades or even centuries past by many other judges of different styles and judicial and political philosophies, in periods of different orthodoxies of procedure and j udicial convention. Each judge must regard himself, in deciding the new case before him, as a partner in a complex chain enterprise of which innumerable decisions, structures, conventions, and practices are the history; it is his job to continue that history into the future through what he does on the day. He must interpret what has gone before because he has a responsibility to advance the enterprise in hand rather than strike out in some new direction of his own. (1985a: 1 59, emphasis in original)

Dworkin's judge, then, can never be original. But neither is he merely the passive recipient of past meanings; creativity is permit­ ted, if not demanded, by the nature of his position within the enterprise of law. To continue legal history into the future is to engage in a continual active reconstruction of what that history means for us in the present, rather than merely to imitate what has been done in the past. In the words of another of Gadamer's disciples, Gerhard Ebeling, '[t)he very nature of interpretation is to say the same thing in a different way, and, precisely by virtue of saying it in a different way, to say the same thing' (Ebeling quoted in Gadamer 1976:xxvii) . In Dworkin's account of the legal enterprise, Gadamer's influence becomes especially apparent. J oining with Heidegger in his critique of the subjectivism of Western thought, Gadamer rejects the author's intention theory of interpretation, because it simultaneously subjectifies understanding and objectifies that which is to be interpreted. Understanding becomes ' a transac­ tion between the creative consciousness of the author and the purely reproductive consciousness of the interpreter' (Gadamer 1 976:xxiv) . Meanwhile the text remains a passive object of know1edge, yielding up its truth under the gaze of the situationless knower. For Gadamer, the gulf between the horizons of text and interpreter is bridged, not by the conquest of object by subject, but by the continuity of history itself, which encompasses and consti­ tutes both the subjective consciousness and the obj ects it ap­ prehends. The subject's present situation, and the 'prejudices' that attach to it, are therefore given by the very movement of tradition. Far from blocking the reception of the text's pure original meaning, the interpreter's historicity facilitates the discovery of the essential 1 48

Dworkin and the Challenge of Postmodernism unity of past and present that is the basis of understanding. Inter­ pretation is therefore a process of dialogue between a past meaning and a contemporary situation, and as such 'is not a reproductive procedure but rather always also a productive one' (Gadamer 1 976:xxv) . Following Gadamer, Dworkin insists that his judge acknowl­ edge his membership of an 'enterprise', and that true loyalty to the enterprise will involve creative interpretation of past legal texts. But like Gadamer, Dworkin also concludes that there are limits to the inventiveness of the interpreter. Creativity serves the higher end of fidelity to the institution; the judge must 'advance the enterprise at hand' (1985a: 1 59) . What enables interpretation in law is the fundamental continuity of the enterprise: to understand the law is to uncover this unifying essence lurking within every prin­ ciple, rule and regulation in the system. True, the interpreter must construct a unity from the disparate elements that constitute doc­ trinal history, and in doing so will bring to that history a political theory reflecting his own preconceptions, 'beliefs other judges need not share' (1985a: 1 62) . But, properly speaking, these precon­ ceptions are not the possession of any individual judicial mind. They arise from the enterprise itself: in Gadamer's terms, the (legal) past already shapes and participates in the interpreter's present horizon. Thus the prejudices associated with that horizon do not interfere with interpretation, but rather facilitate it. To be sure, some preconceptions will be mistaken, but a sensitive judge who 'listens' to the hidden message of the enterprise will be able to sort out which assumptions of political theory are appropriate and which are not. For Dworkin, a fusion of the horizons of text and interpreter occurs at the moment when the judge's normative presuppositions and the object of his interpretative efforts are m equilibrium; the moment of (legal) truth.

II

It can be seen from the foregoing that Dworkin's own conception of law and legal interpretation emerges out of an attack upon the central tenet of traditional positivism - that the integrity of law resides in its identity as a product of the unified consciousness of a sovereign subject, and that legal meaning results from the reproduction of the 1 49

Anne Barron acts of this subject, the discovery oflegislative intent. In this section it will be argued that Dworkin rejects these notions of unity, intentionality and the primacy of the subject only to resurrect them in another form. Dworkin's basic affinity with the positivism that he seems to rej ect consists in his insistence that the production oflegal meaning, although 'essentially political' , is far from being merely the contin­ gent outcome of a perpetual and radically undecidable conflict of interpretations. On the contrary, it is a rational exegetical process, guaranteed to uncover the truth of any legal dispute, the 'right answer' (1 978:81-88; 1 985a: 1 19-45). Legal history is capable, po­ tentially at least, of yielding a single meaning to the interpreter. However, in D workin's analysis, this univocity is attributable, not to the agency of a sovereign, but to the coherence of the values and purposes embedded within the body of rules and principles that constitute the legal enterprise. Dworkin assumes that there is a unifying essence hidden within institutional history, that there is such a thing as the 'nature of the enterprise' that can be found, rather than invented, by the judge. Here the enterprise appears to replace the legislature as the true sovereign, and in the process to become anointed with the legislature's qualities of agency and subj ectivity. Possessed of its own 'intention' , its own values and its own rationality, the enterprise, it seems, holds an authority to which judge and citizen alike must submit. Now it would seem that to defer to this view of law is to contradict the central assumption of liberal democracy - that law is emphatically a product of human agency, and that its author is a conglomeration of individual citizens expressing its will through a democratically elected legislature. Within liberal political theory, legal or political obligation is again derived from a particular conception of the subject, but here the subj ect is the People, rather than Tradition or Spirit. For liberalism, the essence of subjectivity is freedom, defined as the capacity to choose. At fIrs t glance, the very notion of obligation seems not to sit easily with this idea of autonomy; the latter seems after all to imply the absence of con­ straint. But liberal theory neatly sidesteps this apparent dilemma. The liberal subject can be said to act autonomously, even when following principles designed to regulate its actions, if those prin­ ciples have already been chosen by that subject. These principles, being self-imposed, are morally binding, for in giving effect to 150

Dworkin and the Challenge oj Postmodernism them, the individual affirms his true identity as a free and rational person. If one is the author of a moral law, slhe does not com­ promise that freedom by submitting to its constraints, because slhe has already chosen or willed its imperatives. Equally, political obligation rests upon the consent of those obligated. A collective subject, the People, elects a legislature that represents itself, a mirror image of the social body. The accuracy of the representation will be such that acts of the legislature are the acts of this People. Thus the social subject will be subject to the law only insofar as it has already been the author of the law, the source of its creation. The people, as a heteromorphous mass of conflicting individuals and interest groups, may disagree as to what the content of the law should be, but the People, as a conglomeration of rational persons, is characterized by an essential unity: the possession by each of an autonomous will. There can be only one answer to the question of what qualifies as true law. Law is that which is chosen jointly by all the wills . Or, that which the legislature enacts is law, regardless of its content. In this liberal vision, the People is subject in two senses: subject (author of the law and subject to the law, Deleuze and Guattari 1 988: 1 29-30) . The interchangeability of these roles in turn has two implications. On the one hand, it guarantees the transparency of legal prescriptions. True law is the law its author - the legislature, the People - intended to enact. To insist upon any other meaning would be to impose on the People an obligation to which it did not consent. But the author of the law could never be in any doub t as to what that meaning is: access to the instituting intention is assured, for it is nothing less than the author's own intention. Since all of those who must understand the law are also its authors, legal interpretation fmds its anchor in the realm of knowable fact; it is unproblematic. Secondly, the notion of the legislator-subject guarantees the legitimacy of legal prescrip­ tions. Justice consists in the subjection of the People only accord­ ing to the criterion of autonomy - according to a law chosen by the People. Within liberal political theory, the concept that connects these processes of identification and legitimation of the law must, there­ fore, be that of legislative intention. Legal propositions are true to the extent that they accurately represent the intention of the legis­ lature, and to that extent they are also just. Yet Dworkin, in his 151

Anne Barron struggle to distance himself from positivism, seems to jettison the liberal concept of legislative intent, and instead to ascribe an inten­ tion to legal tradition itself. This latter move therefore presents Dworkin with a dilemma - by locating the source oflegal authority in tradition, rather than in a sovereign legislator, he can discredit the claims of positivist jurisprudence, but only, it seems, by denyin g the validity of liberal democratic justifications of law. This he refuses to do, and it is this refusal that ultimately returns him once again to the positivism he purports to reject. For Dworkin, that which reveals the essential coherence of legal tradition is a higher principle than the tradition itself, one that is presupposed by, rather than being an effect of, legal history. Now, inevitably, different judges will construct this 'point or value' of the enterprise in different ways. Some might see its evolution as a story of progress towards efficiency and the maximisation of wealth; others as the actualisation of the natural law . But, 'if two justifications provide an equally good fIt with the legal materials, one nevertheless provides a better justification if it is superior as a matter of political or moral theory: if, that is, it comes closer to capturing the rights that people in fact have' (Dworkin 1 985a: 1 43). In Dworkin's view, the rights that people in fact have are rights to equality of concern and respect in the design and administration of the political institu­ tions that govern them (1978:272-78). The point or value of law is, therefore, to 'capture' and give effect to these rights. It follows that for Dworkin the political theory that best justifies the legal enterprise must be a liberal political theory. Dworkin's subject, the bearer of the basic right to equal concern and respect, is in fact the subject of Kantian philosophy, as modifIed and adapted by the American political theorist, John Rawls (Dworkin 1 978: 1 50-83) : it is an individuated, rational autonomous subject, 'capable offorming and acting upon intelligent conceptions of how [her/his life] should be lived' (1 978:272). The emancipation of this subject - through the recognition of her/his basic right to equal concern and respect - is the presupposition of contemporary legal and political institutions, the underlying purpose that gives coherence, unity and ultimately legitimacy to legal doctrine. In Dworkin's work, then, the notion of the acting subject as the source of the legal system's unity, although killed off in the figure of the legislator and the judge, makes a dramatic reappearance in the guise of the rational, free individual . The authority of the 1 52

Dworkin and the Challenge of Postmodernism enterprise must ultimately yield to the authority of the individual, because the higher principle that explains the continuity and pur­ posiveness of the enterprise is that of autonomy - the emancipation of this subject from everything that prevents it from governing itself. In this, clearly, there is no departure from liberal presupposi­ tions. Dworkin's conception of subjectivity as rational, efficacious human agency, his belief that this conception is descriptive of a universal human essence, his invocation of the category of the subject - being the repository of universal reason - as the touch­ stone against which all disagreement can be negotiated and re­ solved: these are the characteristic strategies of Kantian thought and indeed of the Enlightenment tradition as a whole. Dworkin un­ equivocally signals his convergence with liberalism when he states that the fundamental aim of the legal enterprise is the protection of the rational subject's autonomy. The essence of subjectivity, for Dworkin too, is the capacity for rational choice, and the grand recit that explains human history, and legal history in particular, is the further emancipation of the autonomOuS subject. But his commit­ ment to these liberal values necessarily leads him to resurrect the very proposition he seems anxious to deny: that the identity of law can be understood in terms of its origin in a single unifIed source. Like the positivists, Dworkin's aim is to produce a method whereby true legal propositions can be distinguished from false legal propositions (1985a:146) . A legal proposition is true if it fmds a place within the theory that best justifies the settled practices of the legal system. To demonstrate the existence of a 'best' political theory would be to guarantee, with the positivists, that the possi­ bility of disagreement can be eliminated from the j udicial process. The best political theory is one that can justify the discourse and practices of the law by reference to the ultimate authority of the sovereign (individual) , and in so doing, impose order on what would otherwise be a chaos of rules and principles, banishing some as 'mistaken' and rendering the others coherent and commensurable. To produce rational order out of chaos, the 'right answer' out of conflict and disputation: this is the aim and the achievement of the adjudicative process as described by Ronald Dworkin. At every turn in his analysis of the legal enterprise, Dworkin insists upon the translation of the many into the one, the diffuse into the central­ ized, the other into the same - and always in the name of truth and justice. Thus, the role of political theory in interpretation is 1 53

Anne Barron simultaneously to unify the elements of which legal history is composed - to 'fit' legal history - and at the same time to function as a discourse oflegitimation with respect to the law as so identified - to show the 'point or value' of legal history (1985a:160) . In its 'dimension of fit' (1 985a: 1 43), political theory will licence the exclusion and marginalisation of claims to legal knowledge, and the suppression of conflict over what the law can be taken to be. The judge's 'conception of the integrity and coherence of law as an institution', (1 985a:161) operates to limit and constrain argument and dissensus; it is the touchstone against which all interpretations can be measured and all disagreements resolved. Equally, in its 'dimension of political morality' (1985a:143) - that aspect of the theory that includes claims about the social goals and principles of justice that the legal system should pursue - the theory will subor­ dinate every claim concerning the meaning of justice to its own metadiscourse. Further, through the 'monological reduction', (Le­ noble and Ost 1 986:532) at work in this interpretative method, the history of the legal system can be represented as one of continu­ ously increasing rationality and linear progression towards a single goal, rather than one of rupture, discontinuity and, above all, conflict. Gaps, ambiguities and indeterminacies, if uncovered in the process of interpretation, are bullied into submission and rational­ ised out of existence. The constitution of the subj ect is an inevitable concomitant of this process of systematisation. As Foucault remarks, '[m]aking historical analysis the discourse of the continuous and making human consciousness the original subject of all historical develop­ ment and all action are two sides of the same system of thought' (Foucault 1 972:12) . For Dworkin, the subject is the source of the law's unity and continuity. It is also the reason for the universal applicability of the law; as rational subjects we are all the same, and therefore all equally subject to the law. Here, as in other contexts, the processes of subjectification and subjection presuppose each other (Foucault 1 983) . Legal discourse makes the individual (a) subject, first by creating her/his identity in terms of a category that can be universally recognised and controlled, and then by tying her/him to that identity. The living person becomes an abstract legal subject, characterized by an autonomous responsible will, and as such becomes bound to obey rules of which s/he is notionally both author and addressee. Liberal theory thus posits freedom as a 1 54

Dworkin and the Challenge of Postmodernism universal human essence, but only in order to legitimate the im­ position of limitations upon that freedom. Our sameness as human beings is said to enable the expression of diversity, but also to require its suppression; we are free to choose to be different, but 'choices' that conflict with the law are proscribed. Postmodernity calls into question this conception of human identity and social relations. In particular, 'postmodernism' refuses the liberal affirmation of the autonomous, universal subject: thus Lyotard characterizes the social order in The Postmodern Condition (1984) as a complex network of discourses, and conceives of the human person as one 'positioned' by these discourses. If this conception of the present age is somewhat sceptical of the notions of freedom and choice - the self is never an origin, but always already an effect - it nevertheless recognises and celebrates diver­ sity. That which precedes and makes possible individual conscious­ ness is itself a fractured, highly differentiated and always unstable reality: it yields a plurality of incommensurable identities, both within and between persons. In opposing the Enlightenment vision of society as an ordered totality, unified by reference to an essential subjectivity, postmodernism insists upon the irreducible hetero­ geneity and multiplicity of human experience. This, the postmod­ ern 'Idea' (Lyotard 1985) discredits the 'grand narrative' (Lyotard 1 984) to which Ronald Dworkin's theorisation of the legal enter­ prise appeals, a narrative the hero of which is the individuated, autonomous, universal subj ect. The threat that it presents to Dworkin's picture of law as a coherent unity, expressive of shared human values , can, however, equally be read as a challenge. Postmodernity demands that 'dissensus' be given a voice where otherwise it would be repressed in the production of coherence and truth. It demands an attack upon 'all mechanisms of repression, all courts, institutions, systems of thought that perpetrate the injustice of universal judgment and do not recognise the silence imposed on their victims' (Carroll 1984; Barron 1991) . It calls, finally, for the development of interpretive strategies which, far from reinforcing the closure of legal language, would enable 'opposition and . . . struggle against the coercion of a theoretical, unitary, formal and scientific discourse' (Foucault 1 980:85) .

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6

Fissures in the Integrity of Law 's Empire: Dworkin and the Rule of Law Andrew Altman

Introduction

The principle that political societies should operate under the rule of law has been central to Western legal and political thought since ancient times. The Greeks of the fifth century B . C . saw the rule of law as one of the main features distinguishing their free political system from the despotism of the Persians (Finley 1 977:34, 58-59; Herodotus 1 972:216, 238-40) . Plato and Aristotle both endorsed the rule of law and criticized what they saw as serious violations of it by the political system of fourth-century Athens (plato 1961 :54b-c; Plato 1980:71 5d; Aristotle 1 885:1287a). Modern liberal thinkers, such as Locke, Bentham, Constant, and Hume, have been no less vigorous in their defense of the principle of the rule of law and their criticism of regimes thought to engage in the systematic violation ofit. However, the grounds upon which modern liberal thinkers have embraced the principle are quite different from those upon which Plato and Aristotle endorsed it. For the ancients, freedom was necessarily connected to virtue and the ultimate aim of a political society, and thus of the law, was the inculcation of virtue in its citizens. Virtue was understood as consisting of the qualities of character that would enable persons to lead the best human life, and the ancients had a narrowly drawn conception of what constituted such a life. The free and virtuous life included participation in political affairs and philosophical con­ templation. It did not include economic activity or manual labor because they were viewed as manifestations of humankind's

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Andrew Altman enslavement to merely physical needs. Plato and Aristotle saw the law and legal regulation as means for inculcating in citizens the qualities that would be needed to live the free and virtuous life. The modem liberal defense of the rule of law severs the connection between freedom and personal virtue. The notion that the aim of political society is to promote some narrowly drawn conception of the best human life is rejected. The principal advantage of the rule of law, on the standard liberal view, is not that it can inculcate the ethical virtues, but rather that it establishes a weIl-defmed, noncon­ troversial zone of freedom within which each person can defme and pursue his or her own conception of what kind of human life is best. Rawls gives expression to this traditional liberal idea: Now the connection of the rule oflaw with liberty is clear enough . . . . [Ilf the precept of no crime without a law is violated, say by statutes being vague and imprecise, the boundaries of our liberty are uncertain. And to the extent that this is so, liberty is restricted by a reasonable fear of its exercise. . . . The principle of legality has a firm foundation, then, in the agreement of rational persons to establish for themselves the greatest equal liberty. To be confident in the possession and exercise of these freedoms, the citizens of a well-ordered society will normally want the rule of law maintained. (1971 :239-40)

There is, however, a major problem with the traditional liberal idea that the key advantage of the rule of law lies in the clear-cut boundaries it sets up around a Zone of individual freedom. The legal systems of contemporary liberal democracies seem pervas­ ively to violate the conditions that would have to be satisfied for law to provide a well-defmed, noncontroversial zone of individual freedom that all citizens could readily discern, whatever their moral or political views. The law is filled with vague and open-ended terms, such as "due process, " "unconscionability, " and "good faith. " The authoritative interpretation of these terms often explicitly relies on controversial conceptions of justice and goodness. The discretion of administrative agencies in carrying out the vague mandates of the legislature is extensive. Courts have engaged in the substantial reconstruction of legal doctrine in areas such as tort and contract on the basis of controversial political and moral principles. Moreover, the ordinary citizen has only the vaguest idea of the requirements imposed on her or him by our enormously compli­ cated system of law. In light of these facts, it seems difficult to

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Fissures in the Integrity of Law's Empire avoid the conclusion that twentieth-century liberal democracies systematically violate the rule of law. Liberal thinkers have not been entirely blind to the implication of such facts. Nearly a half century ago, Hayek saw the growth of the regulatory-administrative state as subversive of the rule of law and the freedom it was meant to protect. Hayek accepted the traditional liberal view that the advantage of law lay in its clear-cut demarca­ tion of the boundaries of individual freedom and judged harshly the movement of liberal democracies away from their traditional wis­ dom (1944:78; see also 1 960: 234-47) . Ronald D workin has adopted a very different response to the recent developments in Western legal culture. His aim has been to construct a new liberal account of the nature and advantages of the rule of law that would be compatible with the legal culture of contemporary liberal democracies. In his article, "Political Judges and the Rule of Law, " and especially in his latest book, Law's Empire, Dworkin attempts to carry out this vital liberal project of reconceptualizing the rule of law. The principal aim of this paper is to examine critically Dworkin's effort to carry out that project. I will argue that it is beset by crucial ambiguities in his key theoretical concept, that of integrity, and by fatal inconsistencies between his central theoretical commitments. Dworkin has understood better than most contemporary defenders of the rule of law that the old liberal pieties about the separation of law and politics and the virtues of legality need serious reexamina­ tion. His jurisprudence, along with that of his opponents in the Critical Legal Studies movement, bring into the light important aspects of contemporary legal culture that have lain hidden beneath a blanket of slogans and half-truths. However, Dworkin's effort to construct a theory of contemporary legal culture suffers from serious descriptive and normative deficiencies. Before proceeding to my examination of the details of Dworkin's theory, I will provide a brief analysis of the concept of the rule of law and of the traditional liberal understanding of the concept.

The Rule of Law

The concept of the rule of law implicates the distinction between the public and the private. The distinction was familiar to the 159

Andrew Altman ancients and basic to their political thought. Public power was power that was deployed by the organs of the political community and whose exercise demanded justifICation in terms of the good of that community. Private conduct was action other than that taken by the organs of the political community. It did not demand justification in terms of the good of the community, although it could not j us tifiably do significant damage to the community. The rule oflaw, as Plato and Aristotle understood it, was the regulation of public power and private conduct by positive law. Although the ancients were familiar with the distinction between public power and private conduct, they were unfamiliar with another distinction, one that has played a key role in the way liberal thought has understood the rule of law. This is the distinction between state and society. Society is the domain of interaction within and between groups, each of which is organized around a distinctive set of interlocking beliefs, inclinations, and values. The state-society distinction emerges when the interacting groups have competing conceptions of the good, the divine, the sacred, the right, the just, and the beautiful. On the standard version of the modern liberal view, the state is the power that is to stand above these diverse groups and regulate their interaction. Citizens do not necessarily see the state as a wholly alien power; yet neither can they fully embrace it as the embodi­ ment of their normative vision of the world. It is in the particular social groups to which they belong that citizens find an objective embodiment of their normative visions. The value of the state resides principally in protecting social groups from each other and preserving the freedom of the individual to mold a normative vision and j oin others with a similar vision in pursuing it. On this version of the liberal view, a society is under the rule of law when there is a state that treats all of the competing social groups fairly and regulates itself and society by means of rules that are (1) general in scope, (2) made public, (3) applied prospectively, (4) clear in meaning, (5) duly enacted, i . e. , enacted in conformity with existing authoritative rules, (6) possible to obey, (7) stable, i.e. , remaining in force for a reasonable period of time, and (8) enforced in a manner consonant with their meaning (Fuller

1969:33-94) . A corollary of this traditional liberal conception of the rule oflaw is the thesis that there must be a sharp distinction between law and

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Fissures in the Integrity of Law's Empire politics in any political society that operates under the rule of law. The political realm is that in which competing conceptions of what is good and right for the political community clash and, through a process of compromise and accommodation, produce settlements that are embodied in legal rules. The realm of law is that in which the rules generated by the legal process are interpreted and applied. The law-politics distinction means that the process of interpreting (or applying) the law should be insulated from any assessment of the substantive merits of the contending normative views in the political arena whose clash led to the law. The meaning of the settlement that was reached in the political arena is not to be viewed as a function of which of the contending normative views was more sound and which less sound. Given that the political process that generated the settlement was fair to all, the function of the legal process is now to construe the meaning of that settlement with no reference to the merits of the positions held by those groups. Only in this way will the meaning of the settlement, and thus the location of the boundary between freedom and obligation, be noncontro­ versial. Everyone in society will be able to agree on what those boundaries are, because their location will not hinge on contro­ versial assessments of the moral and political positions that contend with one another in the political arena. Virtually every contemporary thinker of note who defends this version of the rule of law will concede that it is in practice imposs­ ible to insulate the legal process completely from judgments about the relative merits of the views that compete in the political arena. And even Robert Bork rejects the view that sound legal decisions can be reached by the mechanical application of existing doctrines and rules (Bork 1 990: 167-68) . But the standard liberal view pro­ ceeds to make two crucial claims about the infiltration of such political judgments into the legal process. The fIrst is that it is something to be regretted, a symptom of the inevitable imperfec­ tion of the world. The second is that it can be kept to a minimum, reduced to a merely marginal phenomenon in a process that for the most part operates (or can operate) uninfluenced by such judg­ ments. In his recent work, D workin has come to reject in an explicit and forceful manner the traditional liberal distinction between lavv and politics. He accepts the idea that there is a pervasive infiltration of political judgments into the process of legal interpretation. Indeed,

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Andrew Altman the extent of inftltration he sees is far greater than what many of his liberal colleagues perceive. Moreover, he does not regard such infiltration as something to be regretted or marginalized. He be­ lieves that it can be reconciled with a commitment to the rule oflaw and the tenets of liberal political morality. Dworkin thus sets for himself the following tasks: (1) arguing against theories that see a system approximating the traditional liberal version of the rule of law still operating in contemporary liberal democracies (particularly the United States and England); (2) arguing against theories that assert that the rule of law has completely broken down in contemporary liberal democracies; and (3) developing a conception of the rule of law that applies to such democracies and that is coherent with the basic principles of liberal political morality. Dworkin uses the term "conventionalism" to refer to the view. point taken by those contemporary theories that seek to defend the traditional liberal version of the nature and virtue of the rule oflaw and that see current liberal democracies as approximating that version of the rule oflaw. He uses the term "legal pragmatism" to refer to the viewpoint taken by certain consequentialist theories, which deny that there is any intelligible sense in which twentieth­ century liberal democracies are governed by the rule oflaw and that claim that it is a good thing that we are not so governed. And he uses the phrase "law as integrity" to refer to his version of the rule of law. Let us now turn to Dworkin's analysis and critique of conventionalism.

Conventionalism

The core of conventionalism is the thesis that the fundamental purpose of our legal practices and institutions is to give people fair notice of the conditions under which the coercive power of the political community will be used against them. Our legal culture accomplishes this, according to the conventionalist, by requiring that the proposed deployment of state coercion fall within the ambit of what was explicitly decided in the past by those organs of the state conventionally agreed to have the authority to make such decisions and operating according to conventionally accepted pro­ cedures. This requirement means that "collective force should be

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Fissures in the Integrity of Law's Empire trained against individuals only when so me past political decision has licensed this explicitly in such a way that competent lawyers and judges will all agree about what that decision was, no matter how much they disagree about morality and politics" (Dworkin 1986:1 1 4) . Moreover, the conventionalist regards the principal virtue of the manner in which our legal institutions operate to lie precisely in the fair notice it gives people of the conditions under which state coercion will be deployed. Although Dworkin declines to identify particular theorists as adherents of the conventionalist school, it: is not difficult to discern that he has in mind those whose theorie:s he has previously criti­ cized as forms of legal positivism. H.L. A Hart, Hans Kelsen, and Joseph Raz are among the principal flgU:ces. The connection between convention
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Andrew Altman institutions are good ones. Let us turn to the descriptive attack first. Dworkin claims that conventionalism fails to fit our legal prac­ tice sufficiently well to count as a viable interpretation of our legal culture. Following up on his critique of positivism in his earlier writings, Dworkin tries to show that conventionalism cannot provide an adequate account of how j udges decide cases that do not clearly fall within the ambit of some prior authoritative decision by a legislature or court. He claims that conventionalism entails that the authoritative materials of the law 'run out' in such cases, that judges will quickly realize this in examining the cases, and they will thereby be compelled to turn to extralegal considerations in order to arrive at a decision. Against this picture of judicial practice, Dworkin argues that it is in precisely such hard cases that judges pay extremely close attention to the authoritative materials, examining every nuance in order to discover some grounds for decision in them. Thus, if a statute is prominently involved in such a case, then we characteristically find judges "probing the statute, obsessed with the question whether one decision was more consistent with its text, or its spirit, or the right relation between it and the rest of the law" (1986:131). Dworkin contends that such sustained and careful attention to the statute and related authoritative materials is incon­ sistent with the implications of conventionalism . He concludes that conventionalism does not fIt our legal practice sufficiently well to count as an acceptable theory of our legal culture. Dworkin's second line of attack on conventionalism focuses on its claim that fair notice is the fundamental good secured by the adherence of the organs of our political community to the rule of law. Such adherence means that proposed deployments of state power by those organs must follow from, or be authorized by, past authoritative decisions of the political community. Dworkin argues that the conventionalist claim regarding fair notice conflicts with two other theses typically asserted by conventionalists. The first such thesis is that, at the periphery of the operation of our legal system, there are a significant number of cases with respect to which the existing law is indeterminate. These cases arise on the margins of the law, where existing rules and doctrines suffer from gaps not yet filled and conflicts not yet resolved. The second thesis is that in these cases, . the judge ought to render a decision on grounds of social utility. Dworkin points out that, if fair notice were the sole basic good 1 64

Fissures in the Integrity of Law's Empire meant to be served by our state's submission to the rule of law, then there would be an authoritative metarule that fills in all the gaps and resolves all the conflicts. The simplest example of such a metarule would require a decision against the plaintiff in any case where she or he could not clearly and noncontroversially establish that the authoritative first order rules entitled her or him to win. But since no such metarule is part of our legal practice, Dworkin concludes that conventionalism is wrong in claiming that fair notice is the sole basic good served by our adherence to the rule of law. He also notes that fair notice is poorly served by the sugges­ tion that judges ought to decide hard cases on grounds of social utility, since it is difficult to predict just what a judge will think best promotes social utility. Let us begin our examination of Dworkin's critique of conven­ tionalism with his claim that conventionalism cannot account for judicial behavior in hard cases. Why should judges engage in a p ainstaking examination and analysis of the authoritative materials in a case where the law has run out and social utility is to dictate the decision? Kelsen has sketched out a concept that provides resources for a conventionalist reply. The concept is that of a "frame" within which a judicial decision is made. The idea is that, although the law may be indeterminate with respect to the question of whether the plaintiff or defendant should win, it nonetheless imposes certain rough boundaries on the decision and the reasoning supporting it. These boundaries define the frame, or outer limits, within which a decision and its rationale must fall (Kelsen 1 967:351-52). Conventionalists such as Kelsen could respond to Dworkin that the thorough inspection a judge gives to the authoritative materials in a hard case aims, not so much at discovery of the right answer, but rather at determining the frame within which the decision must be rendered. There is no need for a conventionalist to argue that, Once there is no single right answer in a case, then everything is up for grabs as far as the decision goes. If everything were up for grabs, then there would be little point in a close inspection of the relevant legal materials . But conventionalism need not be commit­ ted to that thesis, and Kelsen's is one clear example of such a theory. Dworkin's second line of attack on conventionalism focuses on the idea of fair notice. There is little question that fair notice has 165

Andrew Altman been a value that has played a prominent role in the liberal defense of the rule of law. From Locke to Bentham to Rawls, it has occupied a key position in liberal legal theory. But it seems to me that its importance has been exaggerated, both by defenders and by critics of the traditional liberal model of the rule of law. Even in the context of a legal system whose terms can be mastered by the average citizen, it seems to me that the value of fair notice is relatively limited. Most people most of the time can go about their business with no conCern for the precise boundary between free­ dom and legal obligation. This is because most people most of the time act well within the borders of freedom, not because they suffer from the sort of "chilling effect" referred to by Rawls, but rather because they have no particular desire to engage in the activities that "walk the line" between freedom and obligation. It would, of course, be an intolerable situation if the average person had no idea of what was required and what was forbidden by law. But remember that the virtue of the rule of law, on the standard account given by both defenders and critics of traditional legal liberalism, is its precision in marking the boundaries. I do not doubt that some marginal increase in freedom might be ac­ complished by rendering more precise the rules that govern social life. And it is certainly possible to think of tyrannical governments that grotesquely abuse their criminal law by persecuting dissidents and outcasts through vague statutes and decrees. But the govern­ ments of contemporary liberal democracies have little inclination to engage in such persecution and the law of such states consists of far more than just the criminal law. Moreover, most of the law of contemporary liberal democracies is far too complex to be mastered by the average citizen. Only the legal professional has any hope of knowing where the precise line is between freedom and obligation. Corporations may be in the habit of consulting with legal counsel in order to walk the line, but most p rivate individuals have neither the money nor the time to do so and live most of their lives happily out of touch with the legal profession. I have no objection, then, to Dworkin's contention that any adequate liberal theory must specify some basic good in addition to that of fair notice as one that is served by the submission of our political community to the rule of law. But I believe that there is a distinct good that traditional liberal theories have regarded as 166

Fissures in the Integrity of Law's Empire crucially important and that is fully consistent with conventional­ ism. In fact, this additional good is clearly articulated in Dworkin's account of conventionalism, and yet he unaccountably ignores it in reconstructing the conventionalist account of why it is a good thing that our political community operates under the rule of law. The traditional liberal model of the rule law is meant, not merely to provide fair notice, but also to constrain the power of the organs of the political community by an additional and logically distinct requirement. The organs of state power must be able to show that their deployments of power are authorized by preexisting, auth­ oritative rules or decisions. It will be insufficient for them to claim that what they are doing promotes the good of the political com­ munity. Indeed, it will also be insufficient for them to claim that they gave citizens fair notice of what they intended to do. Their proposed actions must be authorized by the existing rules or else they are beyond the bounds of legality and will not be coun­ tenanced by a political society that operates under the rule of law. The exercise of governmental power must be accountable to the existing system of rules and not merely to some public official's sense of what promotes the good of the political community. In the language of the liberal tradition, the rule of law must replace the arbitrary exercise of political power. The more vague the terms of an authorizing rule, the more room there is for the organ of government so authorized to maneuver in order to promote its sense of the public good (or to promote some private interest) . Precision in the formulation of legal rules is important for the liberal because he or she sees it as serving to better confme the organs of state power. Without such precision, the distinction tends to collapse between a government under the rule of law and a government constrained only by its own judgment of what is for the public good. Such a distinction is, however, crucial for liberal legal theory. In the eyes of liberalism, it draws the jurisprudential line that separates twentieth-century liberal democ­ racies from their authoritarian and totalitarian rivals. For the traditional liberal, the submission by a political com­ munity to the rule of law is much more likely to constrain the tyrannical and abusive exercise of state power than it is to hamper the benevolent deployment of such power. That is why he or she can give virtually unqualified praise to the rule of law. The liberal idea of the legal accountability of public power plays

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Andrew Altman a central role even in those contexts where most persons do not seek to walk the line between freedom and obligation. The idea is distinct from that of fair notice and represents a different liberal value. When the state seeks to deploy its coercive power against a person, he or she may demand that the organ of state power in question j ustify its conduct by citing the basis of its legal authority for the coercion. Access to courts and to professional legal services is, of course, crucial for the accountability of public power to be more than a worthless paper promise. There is little doubt that for centuries, the accountability of public power was largely a fiction for most people. However, liberals may point to the tremendous growth in access to courts and professional services over the last several decades and claim that it represents movement in the direction of meeting the practical requirements of the liberal rule of law. Conventionalism retains this liberal concept of the legal account­ ability of public power and seeks to combine it with a realistic sense of the inevitable indeterminacy in any system of rules . If gaps and conflicts were invariably pervasive in any system of legal rules, the notion of the accountability of power would clearly make little sense. There would be nothing sufficiently definite to which any deployment of power could be held accountable. But the contem­ porary conventionalist concedes only a marginal area within the law for indeterminacy. If he or she is correct, this means that most acts of state power can be judged as authorized or not with regard to definite standards. It seems to me that it is with this idea of the legal accountability of public power that conventionalists and other defenders of the traditional liberal model of the rule of law have their real problem in reconciling their theory to the actual practice of contemporary liberal democracies. It is perfectly plausible to assert that precision in the formulation of rules and doctrines is crucial to providing effective rule-based constraints on the power of the organs of the state. The rise of the administrative-regulatory state, however, has cast serious doubt on the idea that precise rules constrain the power of the organs of the state. To take only the most obvious examples, administrative and regulatory agencies exercise extensive dis­ cretionary powers, guided by only the vaguest of standards. If this is a good thing, and many if not most contemporary liberals think it is, then it can only mean that it is a good thing to have large 168

Fissures in the Integrity of Law's Empire segments of state power virtually removed from submission to the traditional liberal rule of law. This is not to throw the rule of law entirely overboard, but it is to imply that its virtues must be qualifIed considerably compared to the days when there was uni­ form suspicion among liberals of all deployment of public power. A much more nuanced and qualified endorsement of the rule of law is required by any conventionalist who sees our current institu­ tional arrangements and practices as defensible ones. This is per­ haps a deep source of disagreement between Dworkin and his conventionalist foe. For Dworkin seeks an account of the rule of law that both permits the nearly unqualifIed embrace that tradi­ tional liberals gave it and yet does not require any radical criticism of existing institutional arrangements and practices. Before turning to Dworkin's account, it will be useful to examine his treatment of a view that is radically different from both his own and from conventionalism, the view he calls "legal pragmatism. "

Legal Pragmatism

On Dworkin's account, legal pragmatism revolves around two key claims. The first is that our political community does not in fact submit itself to the rule of law. The second is that the basic justification for any deployment of power by the political com­ munity must be the consequences of that deployment and only those consequences. Submission to the rule of law prevents a state from being purely forward-looking in its exercise of power. It requires that proposed deployments of state power be authorized by past authoritative decisions. When the past decisions fail to provide authorization, a proposed deployment must be forgone, no matter how good the expected consequences of the deployment. O n this idea, all ver­ sions of the rule of law agree. Legal pragmatism concedes that the rhetoric ofj udges and other public officials makes it appear as though their power is confined within the scope of what the authoritative decisions of the past authorize. On Dworkin's picture of pragmatism, though, the appearance is wholly illusory: past decisions in fact carry no authority for the present. Current officeholders will deploy state power in a radically forward-looking manner: the true bases of current 169

Andrew Altman exercises of state power are perceptions of future consequences, and the alleged constraints on that power emerging from the past carry no weight. For the legal pragmatist, it would be misguided for our political community to submit to the rule of law. Consequences are what justify decisions and actions of any sort, including the decisions and actions of the political community. Submission to the rule of law would require a willful refusal to take account of consequences when doing so would require actions transgressing the limits of authority imposed by past decisions. For Dworkin's pragmatist, this can count as nothing better than willful irrationality. Dworkin finds legal pragmatism wholly implausible as a de­ scriptive account of our legal institutions and practices, though somewhat more cogent as a normative theory of the way institu­ tions and practices ought to be organized. As a descriptive account, pragmatism implies that all of the legal rhetoric that makes it appear as though past authoritative decisions really do work to confine current deployments of public power is little more than wholesale deception. Dworkin finds it impossible to swallow such an implication. Let us agree with Dworkin on that point. The initial problem is that his account gives us, at best, the most extreme form of legal pragmatism imaginable and one that was held by few , if any, American thinkers who can be identified with the pragmatic approach to law. Again, Dworkin declines to name the principal fIgures who allegedly embrace legal pragmatism as he portrays it. Any good account of twentieth-century American jurisprudence will reveal the important role that pragmatism plays in the thought of such legal theorists as Holmes, Pound, and Felix Cohen (Purcell 1973:74-94; White 1 947:59-75) . Yet, none of those figures held that our legal practice was, or should be, entirely forward-looking. It is true that they often criticized the "dead hand of the past" for obstructing efforts to make the legal doctrine of their day more responsive to existing social and economic conditions. But such criticisms were clearly not intended to recommend a general repudiation of the limits placed on the present by the past. The issue for these pragmatic legal thinkers was always one of the proper mix of deference to the constraints imposed by past rules and decisions, on the one hand, with a pragmatic attention to consequences, on the other. 1 70

Fissures in the Integrity of Law's Empire There were a number of key theoretical problems that the legal pragmatists did not attend to with sufficient care. One concerned the standard to be used in determining the proper mix between the authority of the past and the attention to consequences. If it were a purely consequentialist standard, then it seems that the past would carry no inherent authority and would merely be derivative from consequentialist considerations. Dworkin appears to interpret the legal pragmatists as adopting such a purely consequentialist stan­ dard, but I think that it is historically more accurate to say that they never developed any considered approach to the theoretical problem. More important than Dworkin's suspect picture of legal prag­ matism is that he understates the extent to which legal practice in the United States and other liberal democracies can be seen as exhibiting the pragmatic virtues: attention to social consequences, adaptability to changed social conditions, flexibility in treating the peculiarities of a given case, an experimental spirit, and the willing­ ness to compromise. These pragmatic virtues abound in the legal culture of the United States, and they are not restricted to such obvious instances as when lawyers reach an out of court settlement in a case. The adoption of the Federal Rules of Civil Procedure in 1 938 by federal courts was a victory for legal pragmatism over the inflexibilities of the procedural requirements of code and common law pleading Games 1 965:20-21). In addition, the pragmatic virtues can be seen as operating in the substance of the law, when j udges carry out their formal duty to decide cases. One imponant example, mentioned in passing by Dworkin in a context far removed from his discussion of legal pragmatism, is that of the j udicial practice of crafting an opinion and holding, not to express what the judge believes is the best possible legal argument, but rather to gain the support of the other j udges hearing the case (1986:380). One prominent instance of this is Chief Justice Warren's opinion in Brown v. Board of Education (1 954; also see Kluger 1 976:666-99), but the law is undoubtedly filled with such compromise opinions. The pragmatic virtues are quite different from, and even in conflict with, the legalistic virtues. The latter set of virtues de­ mands uncompromising adherence to the authoritative rules and the limits they set. Such virtues require a studied indifference to consequences, compromises, and the like . It should come as no surprise that the pragmatic virtues are typically taken to have their proper sphere of operation in the political arena, the legalistic 171

Andrew Altman virtues in the legal arena. This view of the appropriate domains for each set of virtues is, of course, a corollary of the traditional liberal model of the rule of law, with its sharp separation of law and politics. Legal pragmatism was, in large measure, a call for the infusion of the pragmatic virtues into the legal arena. The implication of this call was to blur the law-politics distinction and to challenge the traditional liberal model of the rule of law. However, the legal pragmatists did the bulk of their thinking at the level of particular legal doctrines. They largely left unstated the implications of their views for the theoretical idea of the rule of law and did not make any systematic effort to articulate an alternative theory of the rule of law. The implicit implication of their view was that the rule of law could be embraced only in a highly qualified and conditional way. It had to be balanced against and mixed with other models for the exercise of public power, models which left the organs of state power much freer to pursue the public good. And the pragmatist premise was that the administrative-regulatory state contained just about the right mix of the two models. To this extent, legal pragmatism dovetails with conventionalism; the two arrive at the same practical destination from opposite directions. Conventionalism begins its account of law with the elements of the traditional liberal rule oflaw that remain in contem­ porary liberal democracies; legal pragmatism begins with the new models of public power that were needed to make sense of the administrative and regulatory apparatus of contemporary liberal democracies. Neither theory could, in good theoretical conscience, ignore the features of legal culture from which the other started; nor could theorists from either school (with few exceptions) bring themselves to declare that the rule of law was dead or to propose radical transformations in existing practices and institutions. And so both approaches were compelled to the conclusion that, although public power is not entirely subjugated by the traditional liberal model of the rule of law, the current deployment of public power reflects j ust about the right mix between the old liberal model and less suspicious and restrictive models of public power. Into this situation steps Dworkin with the ambitious theoretical project of reconceptualizing the rule oflaw in a way that shows that existing legal practices and institutions do conform to the recon­ ceptualized model. We can cogently understand contemporary 172

Fissures in the Integrity of Law's Emp ire liberal democracies as submitting themselves to the rule oflaw. We need not give up, even partially, the enduring liberal embrace of the rule of law; nor need we propose radical changes in the existing legal culture. The commitment to the rule of law can be seen as fully operative (given allowances for our imperfect world) in the here and now. That, at any rate, is the promise of Dworkin's theoretical project.

Law as Integrity

Dworkin uses the phrase "law as integrity" to refer to his version of the rule of law. The core prinCiple of this model is that "prop­ ositions of law are true if they figure in or follow from the principles ofjustice, fairness, and procedural due process that provide the best constructive interpretation of the community's legal practice" (1986:225). A constructive interpretation seeks to understand something by seeing it as "the best possible example of the form or genre to which it is taken to belong" (1986: 52) . Two criteria guide a constructive interpretation: descriptive fit and normative value. A good constructive interpretation must not only have sufficient descriptive accuracy, it must also comprehend the object of in­ terpretation as embodying some defensible normative idea. When the object of interpretation is the legal practice of a political com­ munity, this means that a good interpretation will construe the authoritative rules and doctrines as embodying a set of defensible normative political principles. 1 The more cogent the principles, the better the interpretation, holding descriptive fit constant. By construing legal rules and doctrines in the light of some underlying set of normative principles, legal interpretation will fill in the gaps and resolve the conflicts that would afflict a convention­ alist model of rules. Moreover, it will give legal interpretation a kind of critical distance from the authoritative doctrines and rules: because the descriptive fit requirement does not (and could not 1. This does not make Dworkin an adherent to the view that a law that violates a true moral principle is ipso facto invalid. If that view is the defming feature of natural law theory, then Law's Empire does not present a natural law theory. The interpretation of Dworkin given by Weinreb is thus mistaken on this point (1987:12(}-21). A better interpretation of Law's Empire on the connection between morality and law is provided by David Lyons (1987:391-92).

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Andrew Altman reasonably) require a perfect fit between the authoritative materials and the underlying normative principles, the latter can be used to criticize, revise, and reject as mistaken some of the rules and doctrines belonging to the former. Of course, Dworkin believes that there are serious limits on such critical power, and for him those limits are defmitive of the difference between legal interpret­ ation and the unconstrained moral or political criticism of prevail­ ing institutions. A political community submits to Dworkin's model of the rule of law, then, only when it demands that any proposed deployment of state power be consistent with the most defensible scheme of normative political principles embodied in the past decisions of the political community. In such a political community, decisions according to law will often invoke controversial ideas and prin­ ciples regarding the just and the good. As the authorized interpreter of the law, ajudge will determine which scheme of principles is the most defensible one that is embodied in the authoritative materials. This will involve the j udge in the assessment of the conflicting normative views that contend in the political arena. The distinction between law and politics will be blurred, because legal interpreta­ tion will invite the consideration and assessment of the controversial normative conceptions that battle in the political arena. Dworkin is quick to acknowledge such an invitation and its implications: "Different judges belong to different and rival political traditions, and the cutting edges of different judges' interpretations will be honed by different ideologies" (1986:88). The inevitable upshot is that "legal judgments are pervasively contestable" (1986:41 1). Dworkin contends that law as integrity provides a conception of the rule o f law that fits the legal practice and institutions of contemporary liberal democracies. H e contends, in addition, that it is a conception of the rule of law that is worthy of our allegiance, more worthy indeed than the traditional liberal conception as embodied in the conventionalist view. In what follows, I will challenge both contentions. Law as integrity relies on a mode of legal interpretation in which the judge imports into the process of interpretation his or her own assessment of the substantive merits of the normative views that contend in the political arena. This importation of political judg­ ment into the legal process is an explicit and authorized part of judicial practice on Dworkin's model. It is not some ineliminable 1 74

Fissures in the Integrity of Law's Empire imperfection, nor some breach in propriety that judges would or should be inclined to hide. It is an essential phase of the process of legal interpretation. Yet, judges in our legal practice are quite reluctant to concede that their decisions hinge on their own assess­ ments of the views contending in the political arena. In fact, they go to great lengths to argue that the normative conceptions in­ forming their decisions are not necessarily their own, but are rather those of the legislature, the framers of the Constitution, the com­ munity at large and! or its historical traditions. They disclaim the authority of their own political judgments, arguing vehemently that this is not the proper role ofthejudiciary in a liberal democracy characterized by the separation of powers. In brief, legal rhetoric is suffused with the traditional liberal distinction between law and politics. 2 Dworkin is quick to take legal rhetoric at face value when it conflicts with the implications of legal pragmatism or convention­ alism. But he does not acknowledge that such rhetoric is also in conflict with his own model of the rule oflaw. Dworkin is guilty of a double standard. This point does not get us that far, though, because I believe that the correct standard is one that does not take inconsistency with some elements of judicial rhetoric to be a decisive obj ection to the descriptive accuracy of an account of the operation of the legal system. There are many reasons why aspects of such rhetoric may present a distorted picture, including the need of courts to maintain their perceived legitimacy. Thus, Dworkin's model may yet be descriptively accurate despite the apparent con­ fli ct between the judicial rhetoric and law as integrity. There is a wealth of evidence, though, that our legal practice does not conform to the Dworkinite model. This is not to say that Dworkin's picture is entirely off the mark. It is not, and indeed it does capture important elements of the legal practice of contempor­ ary liberal democracies. But the reality is much more complicated 2. In many controversial legal cases, the dispute between dissenting judges and their colleagues on the bench is formulated in terms of the rhetoric of the law­ politics distinction. Thus, in Griswold v. Connecticut, 381 U . S . 479 (1965), the case in which the United States Supreme Court first found a general constitutional right to privacy, Justice Black wrote a vigorous dissent in which he accused the majority of usurping the political function of the legislature, while Justice Douglas's opinion for the majority insisted that the Court was not deciding the case as a "super­ legislature. "

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Andrew Altman and messy than the model and may be best described as an amal­ gam of elements captured by law as integrity, legal pragmatism, and conventionalism. Moreover, it is likely that different liberal democracies combine these elements in different proportions, with, for example, the United States having a relatively larger dose of pragmatism and law as integrity and England having a relatively larger dose of conventionalism (Atiyah and Summers 1987) . The hybrid character of contemporary legal systems is best appreciated if we first examine the central concept in Dworkin's model, the concept of integrity. I will argue that Dworkin equivo­ cates on the meaning of the concept and that our legal practice does not exhibit integrity in the sense that would be required for law as integrity to be a good model of how that practice operates. For Dworkin, integrity is, as a rough flfSt approximation, consist­ ent adherence to some defensible scheme of normative principles (1986:165-66). He argues that the concept may be legitimately applied not only to individual persons, but to institutions as well. Just as individuals honor themselves by sticking to the normative principles to which they have committed themselves and dishonor themselves by violating those principles, so do institutions. The value, or virtue, in question in such situations is integrity. It is perfectly true that consistency with evil principles is a possibility. This was the nub of Hegel's criticism of Kantian ethics and the vast weight of philosophical opinion since has been On Hegel's side of the issue. But I think it would be a mistake to think that this can be easily parlayed into a criticism of Dworkin's idea that integrity is an important moral value. Let us grant that con­ sistency with evil principles is no virtue. Dworkin's point about integrity is a mOre subtle one than can be refuted by such a claim. There is a wide range of possibilities between evil principles, on the one side, and the true principles of justice and good, on the other. Persons who fall short of embracing the true principles of justice and good may yet exhibit a virtue in consistent adherence to the principles they hold. Put somewhat more subjectively, one person can see the virtue in another's consistency to certain prin­ ciples, even if the former believes that the latter's principles are not the correct ones. If the principles fall below some moral threshold, the threshold of what is "defensible, " to put a label on it, then we would see no virtue in consistency. The point is that there is a good deal of room above that threshold but below the moral truth about 1 76

Fissures in the Integrity of Law's Empire justice and goodness. For Dworkin, integrity is the virtue that exhibits itself in consistent adherence to principles that fall within that range (including, of course, the true principles) . In order to make us appreciate the importance of integrity, Dworkin concocts a series of examples in which legal and political institutions neglect to carry through consistently on the principles they have adopted, and the apparent judgment to be made in each case is that the institutions should be criticized precisely because they failed to display integrity. Thus, he imagines one example where a legislature adopts strict liability but only for manufacturers of automobiles and not for manufacturers of washing machines. In another example, a legislature prohibits racial segregation on buses but permits it in restaurants. He claims that most of us would criticize such "checkerboard solutions, " as he calls these failures to follow through consistently on a principle that had been adopted (Dworkin 1 986:179). Matters of principle are at stake in these situations and, when that is the case, we believe " that each point of view must be allowed a voice in the process of deliberation but that the collective decision must nevertheless aim to settle on some coherent principle whose influence then extends to the natural limits of its authority" (1 986: 1 79) . In Dworkin's view, the concept of integrity helps explain why we do and should reject the kind of compromises represented by such checkerboard solutions. When our institutions adopt such compromise solutions, they are violating integrity by cutting a principle short of its full range of legitimate application. Only when a principle is allowed to run to the "natural limits of its authority" has the virtue of integrity been displayed. Dworkin believes that integrity is a virtue in terms of which both legislative and judicial institutions ought to be judged. It is not the only virtue and may conflict with other virtues, such as substantive justice. Moreover, Dworkin clearly recognizes that legislatures have the legal authority to adopt compromise solutions that violate the demands of integrity, although he thinks that it is always grounds for criticism when such solutions are adopted. As for courts, they labor under a strict duty to maintain integrity, and that is why, for Dworkin, they must decide cases according to the most defensible scheme of normative principles embodied in the past authoritative decisions of the political community. Much of Dworkin's discussion rests on a sharp contrast between 1 77

Andrew Altman integrity and compromise. To engage in compromise with respect to principles is, ipso facto, to flout integrity; to maintain integrity entails refusing to engage in compromise on such matters. As Dworkin initially explains the contrast, it is rooted in the fact that integrity does, but compromise does not, allow a principle "to extend to the natural limits of its authority" (1986: 1 79). However, a careful reading shows that after this initial contrast is established, Dworkin subtly shifts the meaning he gives to the concept of integrity. Having sharply contrasted it with compro­ mise for the sake of establishing its normative credentials, he then slides into a much looser conception of integrity. On the looser conception, integrity is consistent with compromise, as long as the compromise is dictated by some higher-order principle to which one adheres. The following example will make clearer the contrast between the stricter and looser conceptions of integrity. Consider a person who holds that (1) ideally all manufacturers ought to be strictly liable for the injuries caused by their defective products, but that (2) if it is not politically feasible to hold all manufacturers strictly liable, then at least the most profitable ones ought to be so held. Principle (2) functions as a second-order principle dictating when (1) is to be compromised, i.e. , when (1) is to b e applied in a way that stops short of the natural extent of its normative authority. If the person, or institution, adhering to these two principles endorses a checkerboard solution in a situation in which it is not possible to hold all manufacturers strictly liable, then he or she could still be adhering to his or her metaprinciple, thus satisfying the looser sense of integrity. However, he or she would be violating the stricter sense of integrity, which would demand the rej ection of all compromise solutions. Integrity in the stricter sense is not consistent with the embrace of any metaprinciples permitting the compromise of one's first-order principles. Integrity in the looser sense is consistent with the embrace of such metaprinciples. The importance of this shift in the meaning of integrity is that there is no plausible account of our law that sees it as embodying principles that are allowed to extend within the law to the full limits of their moral authority. To the extent our law can be understood as embodying normative principles, those principles are truncated and confined to domains much narrower than would be the case if they were consistently followed through to the full extent of their moral authority . Indeed, Dworkin explicitly concedes the point, 1 78

Fissures in the Integrity of Law's Empire although not until the final chapter of Law's Empire, well after his initial discussion of integrity, compromise, and checkerboard solu­ tions. In conceding the point, he distinguishes between "pure integrity" and "inclusive integrity" (1986:404-07) . The former cor­ responds to his initial, strict notion of allowing principles to extend to their full range of application without any compromise. The latter corresponds to the looser sense that is consistent with compromise. Dworkin concedes that judges cannot be thought of as custodians of pure integrity, for they operate under institutional metaprin­ ciples that obligate them to apply the substantive principles em­ bodied in the law in a truncated and compromised manner, if that is how the law laid down by the legislature gives expression to them. This shift from pure to inclusive integrity involves Dworkin in an inconsistency. The truncated and compromised application of substantive principles by our institutions was precisely what Dworkin criticized so vehemently in his discussion of checkerboard solutions. Now it turns out that courts, praised by Dworkin as the custodians of integrity, can do no better than enforce such solutions themselves. The sort of integrity of which judges are the custodians involves refusing to allow the substantive principles of the law to extend to the full scope of their legitimate moral authority. Yet, it is that sort of refusal that Dworkin had earlier criticized as a serious vice. This inconsistency may not, by itself, do great damage to Dworkin's theory. After all, he may respond that inclusive integ­ rity is different from, and better than, no integrity at all. Basing a decision on an underlying normative principle, even if the principle has its full range of application truncated and compromised, is still quite different from the conventionalist insistence on making de­ cisions based on the explicit decisions of the past and recommend­ ing utility as the standard when the case at bar does not fall within the ambit of any such decision. Yet, it is highly questionable whether even this compromised form of law as integrity provides a good descriptive model of how the rule of law operates in contemporary liberal democracies. The model ignores the considerable extent to which conventionalist and pragmatic reasoning characterize our legal culture. First consider conventionalism. Judges often will refuse to seek out and assess underlying normative principles and instead stick to the explicit voice of the authorities of the past. They do this, not be­ cause they have deliberated on such principles and have concluded 1 79

Andrew Altman that they do not change the legal outcome, but because they re­ gard such principles as irrelevant to the case at hand. They believe that the case should be decided without regard for underlying principles. Of course, given that the case is being litigated, the counsel for one of the sides is likely to be urging that the explicit decisions of past authorities should not be decisive and that the judge should consider underlying principles that would lead to a different outcome. Sometimes such urgings are successful, but often they are not. Moreover, often it is recognized in advance of litigation that they will not be successful and so the case never gets to that stage. Pragmatic reasoning also is present within the law. Judges some­ times refuse to listen to the explicit decisions and implicit principles of the past and base their decisions on the forward-looking con­ siderations characteristic of pragmatic reasoning. The explicit ap­ pearance of this sort of reasoning is, I think, somewhat more rare than that of the conventionalist and Dworkinite variety, since it involves a clear break with the liberal concept of legal accountabil­ ity . Yet, such pragmatic reasoning is present to some degree; for example, it can be found in the development of product liability doctrine in the United States over the last half century. 3 Moreover, as I pointed out in the section on legal p ragma tism there are more covert ways in which pragmatic reasoning infiltrates legal thinking, e . g . , in the crafting of judicial opinions to gain the assent of the other judges on the case. The descriptive inadequacy of the law as integrity model - even with the watered-down notion of integrity - is a serious defect in the theory offered by Law's Empire. However, there are even more damaging flaws in the theory . These will be revealed if we turn to Dworkin's account of the kind of political community that, on his theory, is to accompany legal institutions modeled on law as integrity. ,

3. Escola v. Coca-Cola Bottling Co. , 150 P. 2d 436 (1944), was one of the key cases in the development of products liability doctrine, and Traynor's concurring opinion in the case first formulated crucial ideas that would be part of that develop­ ment. Traynor's opinion is an excellent example of pragmatic reasoning in the law.

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Fissures in the Integrity of Law's Empire Political Community

Dworkin's model of the rule of law is designed to work hand in hand with a certain kind of political community, what he calls a "community of principle. " Such a community can be best under­ stood by contrasting it to a model of political society endorsed in some contemporary liberal circles, what Dworkin calls the "rule­ book model. " On the rulebook model, politics is an arena in which different groups pursue their own sectarian interests by competing for the favors and advantages government has the authority to bestow. Politics is not regarded as an arena in which principles ofjustice or obligation are discussed, debated, and hammered out. Politics is essentially an arena where sectarian interests strike deals and bar­ gains in pursuit of their own good. Dworkin argues that Conven­ tionalism is the legal correlate of this model of political society. Where politics is not committed to hammering out normative principles to guide the life of the polity, it makes no sense for legal interpretation to proceed as though the products of political activity were the expressions of underlying principles. Where politics is devoted to deals and bargains struck by sectarian interests, legal interpretation ought to proceed by enforcing the explicit terms of the bargains: there is no basis for interpreting the bargain in the light of some assessment of the relative merits of the competing interests, since they arejust so many particular wills, none of which carries any normative authority, doing battle with one another. In opposition to the rulebook model of community, Dworkin p oses the model of community. Here politics is an arena in which an effort is made to work out and institute a coherent and sound system of principles of justice and obligation. There is argument and dispute, but it is argument and dispute over issues that are regarded as ones of principle, not as issues of sectarian interest. Substantive normative disagreements may divide the political com­ munity, but the sense of being involved in the common enterprise of hammering out and institutionalizing authoritative normative principles binds it together. Law as integrity is the legal correlate of the model of com­ munity. Where the common and fundamental aim of politics consists of discussing and instituting principles ofjustice and obli­ gation, legal interpretation must remain faithful to that aim. Law as 181

Andrew Altman integrity remains faithful to that aim; its competitors do not. Conventionalism regards the products of political activity as deals worked out among sectarian interests. Pragmatism's radically forward-looking character ignores as well the principles that underlie the past efforts of the political community to hammer out and institute authoritative normative principles. Only law as inte­ grity treats the products of the political arena as expressions of such principles. Dworkin develops a rather elaborate argument to show that the community of principle generates political obligation, i. e. , the moral obligation of the citizen to obey the law and of the public official to uphold the rule of law, while the rulebook community cannot generate any such obligations. Without recounting the entire argument, I think it can be said that Dworkin makes some solid points in the course of it. As he claims, it is very difficult to see why anyone in a rulebook community would have a moral obliga­ tion to obey the law in a situation where he or she could gain by disobedience. The deals worked out in the political arena of the rulebook community are little more than reflections of the de facto distribution of power and privilege in society. It is unclear why such deals should have the normative authority to generate obliga­ tions that would override self-interest. Whether Dworkin succeeds in demonstrating that the com­ munity of principle can generate political obligations is a question that I will leave open for current purposes. I think it is fair to say that a stronger case can be made for political obligation in the community of principle than in the rulebook community, but that is not to assert or to deny that the case is strong enough. The point on which I intend to focus is a different one. It revolves around a difficulty for Dworkin's theory that arises from a simple observa­ tion: it is entirely implausible to view the political arenas of existing liberal democracies as (good approximations of) communities of principle, and yet Dworkin insists that our legal institutions do, and should, exemplify the legal correlate of such communities, law as integrity. Dworkin must tread carefully on the question of whether our Current liberal democracy is a community of principle. He needs to stake out a position that avoids both the implausibility of claiming that we have a community of principle and the theoretical incoher­ ence that would result were he to concede that we have a largely 1 82

Fissures in the Integrity of Law's Empire rulcbook politics. The incoherence would result because the prac­ tice of law as integrity makes no sense within the context of a politics dominated by the rulebook model. Within the framework of such a politics, law as integrity would treat the products of politics as something they would manifestly not be: the expressions of the efforts of the political community to rule itself in conformity with a sound scheme of principles of justice and fairness. The practice of law as integrity would require that lawyers and judges proceed in delusional disregard of the nature of politics as an arena in which sectarian interests fought for the favors of government. This creates the following dilemma for Dworkin. If he portrays our politics as that of a community of principle, he displays a wholly unacceptable naivete about the actual conduct of politics in our liberal democracy. The rosiest picture of such politics can do no more than portray it as dominated by the deals worked out by sectarian interests, even on issues Dworkin would describe as matters of principle. On the other hand, if he concedes that our politics is largely that of a rulebook community, he undermines his contention that it is (or would be) a good thing that our legal practice reflects law as integrity. I have already argued that law as integrity does not give a descriptively accurate portrait of our legal practices, but even if it did, that would hardly be a recommenda­ tion for it in the context of a largely rulebook politics. For the practice of law as integrity in such a context would require a completely mistaken view of polities. Law as integrity makes little sense when politics is largely devoted to the fight for the favors of government by sectarian interests. In Law's Empire, Dworkin's response to this dilemma is to impale himself on one of the horns: he portrays our liberal democ­ racy as a community of principle. To be sure, he is willing to concede that there are aspects of contemporary politics that do not fit the model of principle, but he treats them as relatively marginal. Dworkin's description of the community of principle is meant as an idealized model and our political practices are interpreted by him as reasonable approximations of the model (1986:213-14) . I a m not loathe t o concede that there is a sense i n which our poli tical culture has an ideal that condemns the treatment of issues of principle as matters of sectarian bickering. But the coherence of Dworkin's theory requires that the ideal be operative in the actual institutions and practices of the political arena. It is not enough that 183

Andrew Altman there are a large number of persons who think it would be a good idea if our politics operated as a community of principle. Our politics must in fact operate that way, or at least as a reasonably good approximation of it. The plain truth, however, is that the ideal simply does not fit nearly enough of actual political practice. It must be admitted that the ideal of a community of principle does have some toehold in our political practice, but Dworkin's theory requires that the model of principle provide a good descriptive fit for the bulk of our political practice. In light of the clear dominance of the rulebook model in our politics, this is simply not a plausible claim. In fact, in an article written a few years before Law's Empire, Dworkin himself portrays politics as largely devoid of integrity and adherence to principle (1985a) . In the piece, he is defending judicial review. The key element in the defense is the contention that the political arena does a very poor job at treating issues as matters of principle but that judicial review enables judges to treat issues in exactly that way. He writes of the institution ofjudicial review: We have an institution that calls some issues from the battleground of power politics to the forum of principle. It holds out the promise that the deepest, most fundamental conflicts between individual and society will once, someplace, finally, become questions ofj ustice. (1985a:71)

Dworkin is portraying politics here as a rulebook model struggle of sectarian interests where power, not right, dictates the outcome. Judicial review insures that there will be an arena in which public power is disciplined to some extent by considerations of principle. Whether this defense of judicial review can work or not is beside my present point. That point is simply that the picture of politics Dworkin offers in the Course of that defense is far more accurate than, and wholly incompatible with, the picture he gives us in Law's Empire. The latter picture results purely and simply from the demands of theoretical consistency. Law as integrity requires the politics of principle as its institutional correlate. Yet, this is a clear case of theoretical consistency leading to descriptive implausibility.

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Fissures in the Integrity of Law's Empire The Future of Law as Integrity

Even if our current politics would make the practice of law as integrity an exercise in self-deception, it is still possible to argue that law as integrity is a model of the rule of law toward which we ought to work, building the kind of political world that it takes for that model to operate in the process. After all, the politics of a community of principle seem clearly preferable to our current rulebook politics. And so it may appear that Dworkin's distorted picture of the political and legal world may be reinterpreted as a noble vision of what law and politics should be like. It seems to me, however, that there is a deep tension between law as integrity (if we take "integrity" in the strong sense) and one of the central commitments of the liberal political morality that Dworkin embraces. Legal institutions that practiced integrity in the strict sense would interpret legal doctrines and rules in light of underly": ing moral and political principles, which would be allowed to run to the full extent of their inherent normative authority . The prin­ ciples would not be compromised or truncated by legal reasoning. The question that arises is whether this sort of legal practice is possible in a pluralistic community of principle in which there are many competing views of the most cogent principles of morality and politics and in which no single group or coalition can gain a lasting grip on government power. Dworkin's liberalism commits him to such a pluralism, and yet there are good reasons to be very skeptical of the possibility of the judiciary practicing the strict sense of integrity in such a setting. Liberal pluralism would have a powerful tendency to create a system of law that was a kind of patchwork of principles and counterprinciples. Principles would not be able to run to the full extent of their inherent normative authority because at some point they would be compromised by counterprinciples that the opposing political forces were able to inscribe in some portion of the law. In fact, such a patchwork is precisely what we have today, and it is what makes it necessary for legal institutions to fall back to the loose sense of integrity (to the extent that they practice integrity at all) . There is no reason to think that this patchwork quality will disappear even if our politics comes to be dominated by the requirements of a community of principle. As long as the community is fragmented along lines of principle and no single group can gain lasting dominance, then the law will 185

Andrew Altman likely be a patchwork of compromised principles. In the concluding chapter of Law's Empire, Dworkin argues that the law can slowly move toward a situation where the principles it embodies are consistently applied to the full extent of their legit­ imate moral authority. He calls this "the purer form of law within and beyond the law we have" (1 986:407) . In such a situation, the practice of law as integrity, in the strict sense, would be possible. But Dworkin never explains how such a situation can come about without the prior, or concurrent, destruction of liberal pluralism. He never explains how the law of a society deeply divided over fundamental questions of moral and political principle can produce a system of law that is anything other than a patchwork of com­ promised and truncated principles. And if we accept the idea that such a patchwork is the invariable consequence of liberal pluralism, then law as integrity is not a form of legal practice that any liberal, including Dworkin, can consistently embrace.

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7

Reading Dworkin Empirically: Principles, Policies and Property Brendan Edgeworth

Introduction

With the publication of Law's Empire, Ronald Dworkin's work has developed from a theory ofjudicial practice into a general theory of interpretation and philosophy of law. To be sure, most of the themes that characterised his earlier work reappear, but in this latest work they are expanded and defended by the use of theoretical insights from a number of other disciplines, such as literary criti­ cism and hermeneutics. For all the refinements, however, his conclusions are familiar ones. Once again, his paragon of judicial virtue, Hercules, is vindicated, principle triumphs over policy and the various major '-isms' of contemporary jurisprudence - positiv­ ism, realism and conventionalism - are jointly and severally in­ terrogated and dismissed. Central to Dworkin's most recent arguments are examples of how Hercules, recently descended from Olympus, would decide a selection of real cases. Clearly, Dworkin is responding to some critics who have wondered about the general utility of his theory for practical adjudication. 1 Also, Dworkin is now consciously attempting to universalise his conclusions by scrutinizing cases decided by British judges as well as their Ameri­ can counterparts. In this paper I propose also to test Hercules' mettle in the context of a few conceptual problems in the area of Australian property law. My aim is to use some concrete, empirical examples of hard cases as a way of developing a much broader critique of his theory. The reason for choosing the particular area of property is out of an interest, as a teacher of property law, to make 1 . See, for example, Raz (1978); Bell (1983); McHugh (1988).

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Brendan Edgeworth use of some general jurisprudential insights to acquire a more penetrating understanding of aspects of this area of substantive law. Indeed, this is to employ theory in exactly the way Dworkin recommends. Furthermore, insofar as property law provides rather harder cases than Dworkin himself chooses for analysis and, being traditionally at the heart of ideological dispute, it throws into question many key elements of his theory. Also, it may provide evidence to suggest that whatever relevance this philosophy might have for the United States' legal system, it is much less useful or desirable in the Australian context. It is important to emphasise, however, as Jeremy Waldron has recently done, that there is no sustained treatment of the concept of property in Dworkin's work (1988: 1 5) . This does not necessarily invalidate the exercise proposed here since the practical examples that will be examined are being used to test the validity of the theory as a whole, in much the same way that Dworkin himself seeks to demonstrate the validity of his theory by focussing on discrimination and nervous shock cases. First, however, it is necessary to examine some of the distinctive features of his legal philosophy. This involves looking at his work as a whole, since his discussions of property, while both derivative from and consistent with key elements of his theory, are somewhat fitful and scattered. Moreover, since he addresses both principles of legislation as well as adjudication, some consideration of the particular flavour of his political theory is necessary .

Law as Integrity and Legal Practice

Law's Empire shares the concern of Dworkin's earlier work to establish the prescriptive, or normative, basis of legal philosophy. Insofar as all legal theories entail legal practices of some sort, so the argument goes, they cannot be value-neutral. Furthermore, every critique of a theory must likewise be value-loaded, for to criticise a theory is to criticise, at least implicitly, the practices that it informs. Accordingly, theories that claim to be pure description are merely attempting to conceal their ineradicable prescriptions . Thus Dworkin rejects the idea that the long-running debate between natural lawyers and legal positivists is basically a semantic dispute about the meaning of the term 'law': 1 88

Reading Dworkin Empirically In fact the old debate makes sense only if it is understood as a contest between different theories, a contest about how far that assumed point of law requires or permits citizens' and officials' views about what legal rights have been created by past political decisions. The argument is not conceptual in our sense at all, but part of the interpretive debate among rival conceptions of la w. (1986:298)

This interpretive debate is much more than a matter of identify­ ing the most accurate description of the practice of law. It also involves the articulation of the most morally justifiable case for that practice. For Dworkin, the most morally defensible legal practice is law as integrity, defined as a commitment to the idea that propositions of law are true if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community's legal practice. (1986:225)

Law as integrity is equally applicable to the legislator and the judge, though it requires rather different duties from each. For the former, integrity entails a balance between justice, defmed as desirable ends, and fairness in the sense of equitable procedures. As these legislative principles have obvious ramifications for a theory of property they will be examined separately below. Integrity as an adjudicative principle, by contrast, requires judges to act in the manner of chain novelists, creatively developing the plot while keeping faith with the story so far. The role model of the chain novelist is chosen to contrast the internal, or insiders', perspective that this requires with that of the literary critic who is seen to stand on the outside looking in. If judges take law as integrity as their lodestar, they will attempt to interpret the law of the community in question in the best possible light so as to 'fa' the determination in an instant case with that community's past political decisions (1986:chap.7) . Importantly, legal interpretation is not monopolised by officials: citizens routinely engage in the process as well (1986: 14) . It can be seen that the key elements in this scheme are (a) community; (b) the requirement of 'fit' with past political decisions as an exercise in constructive interpretation; (c) the relation between officials' and citizens' views; and (d) internal and external perspectives. Each of these relates to Dworkin's foundational principle of political morality: that all citizens should be treated with equal respect and 189

Brendan Edgeworth Concern. Noble as that sentiment is, it will be argued that Dworkin fails in his development of the elements listed above to achieve it. It will be necessary to examine them separately.

Communities. Real and Presumed

Dworkin identifies four separate requirements for a genuine politi­ cal community. First, if a group or an association is to qualify as a community its members must regard its obligations as special to the group, rather than owed to members and nonmembers equally. Second, those obligations must be felt by members to be owed to all other members of the group rather than to the group as a whole. 'Third, members must see these responsibilities as flowing from a more general responsibility each has of concern for the well being of others in the group' (1986 :200 emphasis in original) . Finally, the group or association must act on the supposition that all members must not only be shown concern but an equal Concern. On this test, he is prepared to rule out certain associations as qualifying as true communities. For instance, societies where caste systems operate cannot qualify, as some members are deemed to be inherently less worthy than others. Such societies, concludes Dworkin, 'yield no communal responsibilities' (1 986:201) . But what of those societies, indeed most actual societies, which do not in fact meet these conditions? Do they also fail to yield communal responsibilities? Dworkin's answer is 'no'; The Concern they require is an interpretive property of the group's practices of asserting and acknowledging responsibilities - these must be practices that people with the right level of concern would adopt - not a psychological property of some fixed number of the actual members. (1986:201)

The existence of a true community, therefore, is not established by any empirically verifiable occurrence of these conditions in the attitudes of actual members, but rather by virtue of a measure of concern that is empirically verifiable in the ' group's practices of asserting and acknowledging responsibilities'. As can be seen, this is a fai rl y low standard that any grouping of individuals must attain in order to be a 'true' community for the very reason that Dworkin has already argued that the judge who adjudicates with integrity 190

Reading Dworkin Empirically will decide cases in accordance with the community's legal practice. As long as there is a community that demonstrates equal respect and concern in 'asserting and acknowledging responsibilities', then judges will be constrained in the same way as chain novelists are. With the exception of caste-ridden societies, any society whose legal discourse demonstrates some measure of formal legal equality would impose normative restraints on judges of Hercules' persua­ sion so as to prevent them from looking beyond its past political decisions as evidenced by its present store of rules and principles. This skeletal notion of community has serious implications for achieving the general objective of reaching 'the best constructive interpretation of the community's legal practice' . Perhaps this point may become a little clearer by reference to some decided case law in the area of property. This method of analysing Dworkin's theory appears to be particularly apposite given the extensive use he makes of it himself. Furthermore, if the function of legal philosophy, as Dworkin maintains, is both to inform and to provide the most morally defensible case for judicial and legislative practice in orde! to examine it effectively then the question of its practical applica­ tion must be a central focus in that endeavour. I should like to examine an important decision in the area of Australian property law that highlights the problems with this particular notion of com­ munity. In Milirrpum and Ors v. Nabalco Pty Ltd and the Commonwealth of Australia ((1971) 1 7 FLR 141) the plaintiffs, representatives of Aboriginal clans, sought declarations and injunctions to prevent mining operations undertaken by the first defendants under leases granted by the second. They claimed that the Minister, in granting such leases, had acted ultra vires as the plaintiffs were owners of the land. While conceding that their property rights could be extin­ guished (a) with their consent or by forfeiture after insurrection, or, perhaps, (b) by explicit legislation or by an act of state, they insisted that in the absence of any of these factors their ownership of the land, and thus the right to exclude strangers from it, continued to subsist. After a meticulous examination of the historical and anthropo­ logical evidence, and a painstaking analysis of both local and international law - not to mention some apparent moral discomfort - Justice Blackburn decided in favour of the defendants. On the specific issue of property rights he started by offering a general definition of property:

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Brendan Edgeworth I think that property, in its many forms, generally implies the right to use or enjoy, the right to exclude others, and the right to alienate. I do not say that all these rights must co-exist before there can be a pro­ prietary interest, or deny that each of them may be subject to qualifica­ tions. (Milirrpum:272)

This definition was enough to defeat the Aborigines' claim that they had an interest in the disputed lands. For the judge, their relationship with the land demonstrated none of these rights: their rights to use and enjoy the land were collectively rather than individually owned. For good measure, His Honour confirmed earlier authority that Australia was, in law, a settled rather than conquered colony. Accordingly, as a terra nullius, there were no local laws capable of recognition at the time of settlement and, further, the Aborigines would only be entitled to such property rights as had been acquired after 1 788 in accordance with the relevant common law rules. This judgment has been subject to extensive critique (Hookey 1984:1) and the question of its being the 'right answer' is currently the subject of an appeal to the Australian High Court. Indeed Justice Blackburn's judgment has been explicitly repudiated more than once by the Supreme Court of Canada in the context of disputes over indigenous rights. 2 Its relevance for the argument here is that its conclusions confront directly the basic tenets of Dworkin's legal philosophy. First, the decision to affirm, as the determinative 'principle' in the case, a Eurocentric definition of property, which characterises property in exclusivist and in­ dividualist terms effectively denies traditional owners any safe­ guards against annexation ofland occupied by themselves and their ancestors for millenia. It is difficult to see how this affords them the 'equal concern and respect' with which other Australians are treated, particularly when the definition of property that is advanced envis­ ages a relationship between land and proprietor that is a direct inversion of Aboriginal custom. Indeed, this was recognised by Justice Blackburn, who concluded that it was more accurate to say that, according to their own customary law, Aborigines saw them­ selves as being owned by the land rather than owning it (Milirrpum:270--7 1 ) . Second, would law as integrity as an adjudica2. See, for instance, Calder v . Attorney-Gmeralfor British Columbia (1973) 34 DLR (3d) 145; Guerin v. The Queen (1 985) 13 DLR (4th) 321 .

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Reading Dworkin Empirically tive principle require a different answer in this case and thereby the overruling of earlier precedents that rejected customary rights? Dworkin's detailed analysis of the landmark U. S. Supreme Court decision, Brown v. Board oj Education, supplies some clues. In that case, he argues, the Court overruled earlier authority consistently with the demands of integrity. However, an application of the various elements of Dworkin's notion of community along with other components of the theory will demonstrate that they are quite consistent with preventing similar judicial 'creativity' in a case such as this - indeed, it will be argued that they conduce to the conclusion actually reached - and they thereby confirm the in­ equalities at the heart of the decision. Before this argument is developed, it will be necessary to look at Dworkin's examination of the j udgment in Brown. The American case offers some interesting parallels to a decision about Aboriginal land rights. The key issue was whether the earlier authority of Plessy v. Ferguson ((1896) 163 US 537) was correctly decided. It established that ' separate but equal' treatment did not amount to constitutionally proscribed racial discrimination. For Dworkin, Hercules would have decided the case as the majority did - provisionally overruling Plessy and heralding a new era of oppor­ tunity for America's racial minorities. This is heartening to dis­ cover, but more important still are the reasons why he decided this way. First, Hercules is justified in rejecting 'historicism' - the belief that the true legal meaning lies in the framers' intent. Not only did the legislators who passed the Fourteenth Amendment fail to address specifIcally the question of education, they actually did embrace the 'separate but equal' doctrine that formed the basis of the Plessy decision. Dworkin can reject this approach on the basis that that particular ruling entailed that black schoolchildren 'are being cheated of what their Constitution, properly interpreted, defmes as independent and equal standing in the republic' (1986:389). The 'even more influential theory' (1986:369) of 'passivism' is also shunned insofar as it really does end up promoting the very evil it was supposed to avoid, namely, leaving the constitution as it is by deferring to the legislature in controversial cases. The result of such a position is to allow the legislature to engage in constitutional amend­ ment: 'Under law as integrity, controversial constitutional issues call for interpretation, not amendment' (1986:371). The decision in Plessy, based on suspect theories, was therefore justifiably overruled, but, 193

Brendan Edgeworth decisively, on the basis that America's 'growing sense that racial segregation was wrong in principle' and the fact that 'the old legisla­ tive history is no longer an act of the nation personifIed declaring some contemporary public purpose' (1986:388). This latter quotation makes clear that the propriety of overruling is very much dependent on the prevailing political and sociological climate, as does Dworkin's introduction to the above argument where he claims that 'perhaps this theory [the right to discriminate on the grounds of race] would have been adequate under tests of fairness and fit at some time in our history; perhaps it would have been adequate when Plessy was de­ cided' (1986:387). This moral and legal relativism operates as a considerable limitation on the judge's creativity. It will be explored in detail below. These general arguments provide a persuasive rejoinder to the no t uncommon criticism that Dworkin's theory of adjudication inevitably directs judges 'al ways to perpetuate the existing ideology of the law' (Raz 1978:134) . But the question that now arises is how would Dworkin's newly refmed theory, with its central concepts of community and integrity, apply to a hard case such as the Milirrpum decision? As outlined above, Dworkin's test of a true community would seem to qualify Australia in 1971 when the case was decided, given that his four formal requirements seem to have been met at that time. Yet the reality of the Aborigines' plight ever since settlement has been one of systemic oppression, disadvantage and at times genocide (Rowley 1970) . Even more signifIcantly, Abori­ gines have historically neither been seen as fully part of Australian society, nor indeed have they felt themselves to be so. For most of the period of European settlement they have been denied the right to vote. They only received this right in 1 967. For the purposes of Dworkin's test of a true community, presumably from that time onward Australia would be seen to have moved from the category of 'caste' system to that of true community. Could this history have any relevance to Hercules' decision? It seems not, given the formal, rather than historical or sociological, nature of Dworkin's theory of community. After all, the common law applied to all equally at the time of the decision. Therefore, it would be hard to argue that Aborigines were shown less concern in the 'asserting and acknowledging of responsibilities' . They had the same rights as any other citizens to acquire, alienate and protect their property at common law.

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Reading Dworkin Empirically In addition, to the extent that it has been a feature of Australian legal and political history since settlement to disregard Aboriginal customary rights, Justice Blackburn was really doing nothing more than constructively interpreting past political decisions of the 'com­ munity personifIed', a 'community' that has refused to recognise the different culture, values and normative structures of Aboriginal society. Against this it might be argued that there is ample j udicial authority to suggest that this decision is wrong at common law. This, of course, is what makes it, in Dworkin's terms, a hard case. This body of countervailing precedent indicates that Aboriginal title is usufructuary in nature and operates as a burden on the title of the Crown. 3 Also, it is inalienable except to the Crown and extinguish­ able only by Act of Parliament. This line of reasoning found favour with the majority ofj udges on the Canadian Supreme Court in the case of Calder v. Attorney-General for British Columbia ((1973) 34 DLR 145) only a short time after Milirrpum was decided. But however appealing this and earlier judgments are for all who consider the legal treatment of Aborigines to be shameful, a judge armed with Dworkin's theories would be nudged in the direction of rejecting it. This is because the requirement of 'fit' imposes a duty on the judge to ensure that the community's store of rules and principles are constructively interpreted to fulfIl some contempor­ ary public purpose. If that contemporary public purpose happens to be, for instance, the exploitation of mineral resources to maximise 'community' - that is, national - wealth and in light of that objective to deny Aboriginal land rights, then the existence of ancient precedents that derive fro m a contrary philosophy of ac­ ceptance and recognition of indigenous rights is irrelevant to that contemporary purpose. As Dworkin emphasises in his discussion of Brown, the fact that a present decision conforms with the state of the law at some period in our past should not determine the issue here and now: tests of fairness and fIt are historically specifIc. Accordingly, even if Justice Blackburn had recognised the con­ fusion of the authorities (which he did not), he would have been even more inclined to opt for the decision he actually reached if he had embraced the Herculean approach. He would have been in­ fluenced by the gravitional pull of the preponderance of principles, 3. Early examples are, Johnson v. M'Intosh (1823) 8 Wheaton 543; St. Catherine's Milling and Lumber Co v. The Queen (1889) 14 App Cas 46.

1 95

Brendan Edgeworth past and present, at odds with customary law. This is despite the fact that overruling earlier decisions is welcomed by Dworkin. Justice Blackburn's decision was very much in keeping with the temper of the time or, in Dworkin's terms, consonant with 'con­ temporary public purpose' . As such, the conditions necessary for rej ecting the judicial trend since settlement in 1 788, analogous to those that appeared in Brown, were absent.

Citizens' Interpretations

In this context it may be relevant to consider the role of citizens' interpretations in the process of determining the relevant legal truth. This issue has been a recurrent and politically progressive feature of Dworkin's work. He has consistently maintained that citizens are justifIed in rej ecting, for instance, judicial interpreta­ tions of the law in those circumstances where they have a reason­ able disagreement about the fundamental principles that underpin the legal system as a whole (1985:chap. 5) . This is not an argument in favour of civil disobedience, but rather a plea for tolerance of dissent and the coexistence of rival interpretations of the law. It is difficult to imagine a situation where a more j ustifIable disagree­ ment between citizens and authorities about the meaning of the law could arise than in this case. The Aborigines' interpretation of the law amounted to an attempt to persuade the dominant culture to recognise their alien concept of property: they proposed a form of legal pluralism. On one level, this seems to be the logical conclusion of Dworkin's advocacy of toleration of citizens' interpretations, communitarian­ ism and treatment of all with equal respect and concern. When it comes to genuinely hard cases, however, these particular elements are discarded in favour of the privileged prerogatives of a judicial community enjoined to pursue the 'right answer' . This is because Dworkin provides no mechanisms whereby the adjudicative pro­ cess could accommodate such dissenting voices when the doctrinal and institutional corpus of legal materials indicates otherwise. For instance, his concept of community is far too inflexible to address the empirical features of actual power distributions within particu­ lar legal systems given its rigid formalism, which prevents consid­ eration of such factors . It will be remembered that considerations 196

Reading Dworkin Empirically such as 'psychological alienation' are quite irrelevant to the issue of identifying communities and corresponding communal responsi­ bilities. Also, as a matter of sociological fact, judges monopolise legal interpretation, at least to the extent that they determine authoritative legal meanings, however much social actors them­ selves may do so in their daily lives. There is no form of com­ munitarianism that allows for interpretations at odds with theirs in Dworkin's theory, even though the requirement that all citizens be treated with equal concern and respect is posited as a paramount cons iderati on. Accordingly in this case, though there was insur­ mountable evidence that the Aborigines had for millenia developed and applied a set oflegal rules quite at odds with the now dominant meaning of property, this meant absolutely nothing to the judge in legal terms. It is precisely in this respect that the apparently demo­ cratic and open form of Dworkin's legal interpretation can be seen to be of minimal practical effect. A further weakness in Dworkin's argument concerns the ques­ tion of the relationship between principles and his emphasis on justice, fairness and procedural due process. While these grander ideals are seen to be necessary components of the j udge's normative universe, there seems to be no way for them to provide assistance in hard cases such as this . At a more fundamental level Dworkin's philosophy represents the imperialism associated with the modern rise of nationalism. Modern, or Western, nationalisms developed by ultimately eliminating 'traditional' societies. This involved the destruction of their social and economic structures and, more importantly for the purposes of this argument, their laws and customs. Modern legal theory's obsession with absolutist concep­ tions of legal truth has been centrally implicated in this process. Dworkin's political and legal philosophy is no less insensitive to this historical pattern. It would be unfair to Dworkin to suggest that his theory is unambiguously of this nature: in keeping with his 'left-wing' credentials (Posner 1990: 1382) it is likely that he would recognise the injustice here. His theory, however, is insufficiently attentive to the still present claims of indigenous peoples to offer guidance to judges in these hard cases. Only a j udicial philosophy that accords some priority to human rights can avoid this pitfall. This point will be developed below.

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Brendan Edgeworth Constructive Interpretation

Hercules would be precluded from considering that history in coming to his decision not merely by Dworkin's theory of com­ munity, but also by virtue of his theory of interpretation. In the early chapters of Law's Empire it is made quite clear that construc­ tive interpretation is a form of hermeneutical activity quite at odds with historical or sociological accounts. There are two ways of studying law, he concludes: One is the external point of view of the sociologist or historian, who asks why certain patterns of legal argument develop in some periods rather than others, for example. The other is the internal point of view of those who make the claims. (1986:13)

Dworkin points to ways in which these two approaches might overlap, but not in any way that might clearly inform Hercules' practice. To begin with, he emphasises that judicial decisions are subject to a requirement of 'fit'. In the manner of soap opera script writers, judges must keep faith with the plot and characters who have appeared so far. Does this not conflict with the process of constructive interpretation? Yes, and Dworkin recognises this, but he does little to resolve the problem. Thus, while pointing out that there is scope for the individual judge's personal perspectives here, he fails to explore its attendant significance. In order to understand how a particular j udge balances 'fit' and ' constructive interpreta­ tion' he merely directs attention to that judge's convictions (1986:236-7). But such convictions can themselves only be realisti­ cally understood in the light of the interpretive community of which the j udge is a member, which includes its own internal norms as to what passes for appropriate interpretation, and external forces that in turn may impinge on this question (Cotterrell 1 989: 1 80) . In the context of the settled colony doctrine, which was one of the key issues in the Milirrpum case, these factors, among others, were a judiciary that has, since settlement, been stubbornly resistant to claims that Aborigines had any indigenous rights, civil or proprietary, and a general legislative scheme that treated them as an inferior and backward race. No clearer instance of this collective corporate ethos was the sacking in 1 836 of one judge who dared to suggest that Aboriginal law continued to operate alongside the common law after settlement (Hookey 1984:4) . 198

Reading Dworki,: Empirically In consequence, historical facts, however disturbing a judge might find them, would be ruled out of account by this approach. A Hercules faced with the precedents before Justice Blackburn would therefore feel obliged to conclude, as indeed most Australian judges to date have done, that such historical considerations are irrelevant to the decision at hand (Reynolds 1 987:chap. 7). Thus, citing Kent's Commentaries, Justice Blackburn in Milirrpum sug­ gested that 'what is important is the legal theory, and for this purpose historical fact may give way to legal fiction' and, further­ more, that 'the attribution of a colony to a particular class [settled o r conquered] is a matter of law, which becomes settled and is not to be questioned upon a reconsideration of the historical facts' (Milirrpum:202-03) . The key to these arguments is, as Dworkin urges, a commitment to a rigid separation of internal and external points of view. History is external to the practice of law, even though it may reveal that a particular society's structure is mark­ edly at odds with what a thoroughgoing communitarianism would require and that a particular legal culture has been instrumental in creating it. Would an attempt by judges to combine in some way internal and external points of view turn them into sociologists or his­ torians, or might such an approach provide a better model of j udicial practice? Some clues towards an answer to this question are provided by Stanley Fish (1 980) . Fish begins by making the very obvious point that judges are members of an interpretive com­ munity bound by shared understandings of what counts as appro­ priate interpretation. He adds that interpretation is never determined by the text itself, in the sense of a causal chain whereby text precedes interpretation. On the contrary, interpretation constitutes the text. According to this view, the truth of legal propositions is always contingent on the nature of the relevant community rather than being a property of particular texts. An example of how a judge might benefIt from such a sociological awareness is shown by the comments of the former Australian High Court judge, the late Justice Lionel Murphy, in a more recent Aboriginal land rights case, Coe v. Commonwealth ((1 979) 53 ALJR 403) where he de­ scribed the formal, legal doctrine that Australia was a terra nullius on settlement as a 'convenient legal falsehood' designed to allow the unjust expropriation of Aborigines' land (Coe:412) . For Her­ cules such an assessment would be impermissible as substantive 1 99

Brendan Edgeworth historical analysis and would thus be irrelevant and external to the 'constructive interpretation' of the community's past political deci­ sions: legal truth or falsity is to be assessed exclusively on the anvil of internal analysis of the relevant legal materials. This orthodox position represents the opinion of Chief Justice Gibbs in the same case. Can judges do better than this ?

A Better Model of Judicial Practice?

It is rather easy to suggest defects in Hercules' approach without offering some outlines of a preferable alternative. One critic who has attempted to do this is Simon Lee (1988:chap. 24) . While Lee's criticisms of Dworkin's project oscillate from trivialisation to incisive critique, he nonetheless does argue for a different model of judicial law making: he would prefer judges to embrace policy openly in hard cases. Dworkin's antipathy to policy arguments intruding into judicial reasoning is not unrelated to the conse­ quences of the United States' Constitution, which privileges the judicial role. An activist judiciary would be in a position to veto legislative programs if so minded in light of the powers the Con­ stitution gives them. Furthermore, there are many instances in U. S. history of this having taken place. But however justified this fear may be in that country, constitutional arrangements that draw the boundaries ofjudicial power differently would require a rather different set of responses even if one accepted Dworkin's basic theory of adjudication. Lee, therefore, characterises the role reserved for the judge by British constitutional principles - in particular, Parliamentary sov­ ereignty - as akin to that of deputy legislator. This more restricted role necessarily reduces the scope for judges to usurp the demo­ cratic will. It follows that they are justified in taking policies into account when the existing authorities do not provide a clear an­ swer. In Australia, a different constitution again confers a range of powers somewhere in between the British and the U .S. positions. While the overall structure of government is determined by a written constitution, it contains no bill of rights. There is corre­ spondingly less scope for the policy-informed judicial activism so consistently repudiated by Dworkin. This fact might lead one to conclude that the competing elements of rules, principles and 200

Reading Dworkin Empirically policy should be weighted differently. Moreover only are different constitutional structures relevant to the most desirable form of judicial practice, but the social settings and historical traditions within which they operate should be factors in determining what the scope ofj udicial power should be. As the discussion of Aboriginal land rights demonstrates, the nature of the community in which that practice takes place is a crucial dimension to the adjudicative process. Importantly, Dworkin has identified a number of limiting conditions, such as his concept of community, but they are insufficiently sensitive to the specific prob­ lems of time and place to offer real guidance. In this context, Law's Emp ire compounds this weakness since it purports in a much more ambitious way than his earlier work to advance a universal model of both adjudicative and legislative practice: the theory is presented as equally applicable across geographical space and historical time. What might be a better way of addressing this problem? Some solutions may lie in the discourse of human rights. This is suggested in a recent decision concerning the property rights of indigenous people. In Mabo v. Queensland ((1988) 63 ALJR 84) the Australian High Court considered the validity of legislation passed by the defendant state government after the plaintiffs had com­ menced an action seeking declarations that they were the legitimate owners of the island land they occupied. The legislation bluntly declared that the land, on becoming part of Queensland, was vested in the Crown in right of Queensland. It thereby became Crown land subject to the State's Crown land legislation from time to time. The legislation also provided that no compensation was payable in respect of any prior right. The Court held that, assum­ ing that the traditional legal rights pleaded by the plaintiffs existed prior to the enactment of the legislation in 1985 (determination of this matter being held over for a later hearing), the legislation contravened s. 1 0 of the Racial Discrimination Act 1975 (Cth). which provides for equality of enjoyment of rights. For the minority, the effect of the legislation was not to create an inequality but 'to remove a source of inequality formerly existing between the plain­ tiffs and persons of another race' (Mabo: 90) . This is a modern version of the terra nullius doctrine, the gist of the argument being that even if indigenous groups have customary legal rights, it is justifiable to annul these rights by legislation without compensa­ tion if the policy objective is to achieve formal equality for all

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Brendan Edgeworth citizens. For the majority, by contrast, the rights referred to by the section, insofar as it made reference to Article 5 of the International

Convention on the Elimination of All Forms of Racial Discrimination, were basic human rights. The necessary consequence of the legisla­ tion was that plaintiffs 'enjoy their human right of the ownership and inheritance of their property to a more limited extent than others who enjoy the same human right' (p. 96) . This latter interpretation of the statutory provision clearly accommodates pluralistic forms of proprietary rights while simultaneously pro­ tecting indigenous cultures and economies . In so doing, it raises the status of indigenous property rights to those of other citizens. As an exercise in statutory interpretation, however, it does not directly address the issues raised in the Milirrpum case. Indeed, that question was specifically reserved for determination by the Queensland Supreme Court. But, importantly, it does demonstrate how argu­ ments based on human rights are rather more amenable to notions of 'equal concern and respect' and genuine communitarianism than Dworkin's 'integrity' and 'community' appear to be. This is of particular significance for judicial practice within the framework of state constitutions, such as Queensland's, which contain no bills of rights. In response to this it might be argued that this shift in judicial attitudes reflects a changing climate of public opinion, so that the protection of indigenous rights might now be a 'contemporary public purpose' of the 'community personified' and is thus very much consonant with Dworkin's description of constructive inter­ pretation. The answer to this is that this makes judicial creativity heavily dependent on the often crude yardstick of popular opinion, even in the case where basic human rights are at stake. There seems no principled reason, for instance, why it is right to protect the customary property rights of indigenous people in 1988 but not in 1971 . Obviously, this is a very superficial j ustification of the merit of concepts of human rights for the purpose of guiding judicial creativity (cf. Kirby 1988: 514) . Whatever flaws may exist in this approach, however, it would at the very least not be subject to, or shackled by, the same vagaries of time and place that law as integrity appears to be.

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Reading Dworkin Empirically Law as Integrity: Legislation and Property

Integrity is no less a source of advice for the legislator than it is for the judge. Legislators are urged to translate policies into laws with a view to maximising rough equality and procedural j ustice. Signifi­ cantly, equality takes priority over freedom in Dworkin's scheme (Dworkin 1985:chap. 9) . This identification of equality rather than freedom as one of the very principal political virtues originates in Dworkin's insistence that each community should treat its citizens with equal concern and respect. He argues that liberals must be concerned about equality since it requires that no individual or group should be sacrificed at present for a putatively more prosper­ ous future. Of necessity, a commitment to equality in this form entails a theory of, and set of policies around, the institution of property. Unlike free market libertarians he maintains that equality cannot be purely a matter of equal freedom from interference by the state in respect of economic activity. It must also encompass a range of ample social welfare programs and a redistribution of wealth by means of a progressive tax system. So, for instance, 'if economic policy contemplates an increase in unemployment, it must also contemplate generous public provision for retraining or public employment' (Dworkin 1985a:21 1). More fundamentally, if the present distribution o f property systematically 'pushes people below the level at which they can help shape the community and draw value from it in their own lives . . . then it forfeits the only premise on which its conduct might be j ustified' (Dworkin 1 985a:212) . Perhaps predictably, sen­ timents such as these have provoked a leading law and economics theorist to brand Dworkin a 'left-wing utilitarian' (Posner 1980:487) . The important point for the purposes of this discussion is that his theory of property is measurably at odds with that of c1assical liberalism. As Anthony Arblaster concludes, he can be best characterised as being squarely within the European social­ democratic tradition (Arblaster 1 984:338) . After identifying the principled necessity for some redistribution of wealth, Dworkin advances an ingenious model for assessing how a community might achieve a minimum level of resources to which all would be entitled (1981 :283). To illustrate his argument, he starts with a hypothetical shipwreck that leaves survivors stranded on a desert island. An auction of all unowned goods on the 203

Brendan Edgeworth island is then held with the survivors given equal numbers of clamshells as currency. The auction's purpose is to distribute re­ sources. The price of goods is determined by shopping lists pro­ vided to the auctioneer by all intending bidders . A market for exchange of the goods so distributed is then introduced to allow individuals to acquire the goods they prefer in return for those they least want. This rather complicated scheme is preferred to a straight equal division among all survivors . In order to achieve a more equitable distribution this model is structured to take into account certain types of bad luck by the creation of a hypothetical insurance market. Bad luck in this context includes loss of earning power, so that the greater one's earning power, the greater the payable insurance premium. This market then forms the basis of a gra­ duated tax system. Dworkin is prepared to admit that this formula might be incapa­ ble of fully achieving its aims, since he acknowledges that the most telling criticism of his argument is that an insurance principle might deliver too little redistribution. Nonetheless, he has little to say against it. There are a number of elements to this criticism. First, there is no way of knowing what measure of redistribution this would achieve, since the only reference point Dworkin offers is the 'average coverage level' (1981 :322) . Those transfers would be di­ rectly proportionate to the general disparities in income that existed in any society. But presumably the actual amounts of these trans­ fers would be affected by the structure of the particular insurance market, its efficiency, its profitability and so on. Even if these problems of imperfect markets could be ironed out, Dworkin does not show that even a perfect market-based system provides the most compelling moral basis for a fair redistribution of resources. As in much economic theory his market is driven by 'preferences' but the many ways in which preferences are structured - among other things, by fashion, advertising, ignorance and the culture of the relevant corporate actors - makes an unreliable basis by itself whatever tinkering might take place - for organising a progressive tax system. John G. Bennett makes the important point that preferences for consumption items are not usually simply brute facts about us. They represent s trategies for satisfying more important aims, and there is room for quite a bit of divergence between the outcome and the satisfaction of the aims it is intended to serve. There is no reason to 204

Reading Dworkin Empirically believe that we should take these strategies seriously as indicators of anything important. (1985:102)

Furthermore, Dworkin overstates the hypothetical argument that his model might redistribute too little. He notes that a taxation system based on an insurance model would need to be 'ambition­ sensitive' in the sense of according recognition 'to the cost of one person's life to other people' and ' to the wholesale effects of any scheme of distribution or redistribution on the lives that almost everyone in the community will want and be permitted to lead' (1981 :334) . This is an important qualifIcation: a society where a more equitable distribution of material goods would not be a signifIcant advance on what exists at present if it led to a consider­ able narrowing for many of general opportunities for developing their talents in education or the employment of their choice. To this extent, Dworkin provides something of an answer to those critics who have questioned his conclusions because of their exclusive focus on a minimum level of material goods rather than on the relevance of property for the fulfilment of 'a fully human life' (Munzer 1 990:251). But his answer is nonetheless unsatisfactory for a number of reasons. In the first place, it does not necessarily follow that a greater measure of redistribution than the hypothetical insurance would provide would lead to such a narrowing of opportunity. Indeed, where an increase in taxation had the effect of funding training, educational, and leisure activities, a corresponding increase in gen­ eral opportunities might arise. Second, his scheme for requiring some redistribution of resources fails to take into account the factor of the size of the disparity of property ownership between rich and poor. As Stephen Munzer puts it, the weakness of Dworkin's position lies in the fact that it addresses only one aspect of inequal­ ity, which he describes as the 'Floor Thesis' (1990:241). This thesis addresses exclusively the issue of a basic minimum: once that is established, the necessary and sufficient level of redistributive jus­ tice will have been achieved. However, Munzer suggests that there is another necessary dimension. He calls this the ' Gap Thesis'. This is derived from the Kantian notion that a society must treat all persons as equal in moral worth. He adds that: [tJo treat them in this way is to ensure a fully human life in society for all

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Brendan Edgeworth those willing to accept it (ascetics are still allowed) , provided that it is reasonably possible to do so. Hence, if a society exhibits wealth inequal­ ities that are wide enough to disrupt or render impossible this sort oflife, then it is not ensuring a fully human life for all, and it traverses the Kantian injunction to treat persons as equal in moral worth. Therefore, inequalities are justifiable only if they do not undermine a fully human life in society. (1 990:248)

Third, where there are considerable differences in levels of wealth and particularly where those differences are based on ran­ dom factors such as inheritance rather than desert arising from labour, then they 'rest on no differences in moral merit and are instead an affront to equal moral worth' (1990:249) . The fact that the poorest members of one society are much better off than the well-to-do of another is irrelevant. The signifIcant issue in this context is that once one is below a certain level in a particular society one is denied the self-respect that comes from being a productive member of society. While what constitutes a fully human life will vary from society to society depending on the relevant society's overall wealth, the combination of 'gap' and 'floor' theses will assure not only a basic minimum but also a narrowing of disparities between rich and poor. There are clear echoes in Munzer's argument of Dworkin's fundamental ethical postulate that all citizens should be treated with equal respect and concern, which in turn echoes that moral philosophy of Immanuel Kant. While Dworkin seems to stop at this point, Munzer adds that 'the idea of a fully human life in society has a Kantian foundation, but the foundation includes, if you will, some Aristotelian and Marxian bricks' (1990:247) . In other words, Dworkin's approach to redistributivism needs to be supplemented with some sociologi­ cal and wider moral evaluation of the effects of large disparities of wealth. This raises the inevitable consequence of very uneven distribu­ tions of wealth on the fair functioning of all social institutions. This is an aspect of the more serious criticism still of his moderate redistributivism and the complete absence of any consideration of the question of power. As has been noted above, Dworkin's theory of interpretation and adjudication glosses over the ways in which certain meanings actually become the 'true' or 'right' ones. This criticism is no less relevant to legislative integrity and rough equality. As he notes in his introduction to his theory of equality of 206

Reading Dworkin Empirically resources , 'an overall theory of equality must find a means of integrating private resources and political power' (Dworkin 1981 :283) . That exercise, might entail a dramatic revision not merely of his prescriptions for legislators but for judges - Hercules included - as well.

Conclusion

The intention of this chapter has been to test some of Dworkin's key concepts in a specific area of adj udicative and legislative prac­ tice. To this extent the argument is a rather modest one: that Dworkin's philosophy has little that is po s itive to contribute to assist judges with the intractable problems of land rights for in­ digenous peoples, or to advise legislators committed to a policy of redistribution of resources . This is not to deny that Dworkin's approach contains many valuable insights as well as an admirable political egalitarianism. In some respects, however, many of the difficulties with Dworkin's work lie in the fact that promising concepts remain undeveloped. As noted above, this is dearly indicated by his formalistic definition of community which offers no guidance in instances where minorities, such as Aborigines, for example, are disadvantaged. This is not to imply that the weaknesses in the theory are only manifest at the margins, or in a narrow range of comparatively isolated instances. Hopefully, the discussion of property has sug­ gested evidence of rather more far-reaching flaws. As others have shown, if the proof of a theory lies in its concrete application, then a critical approach ought not only to examine the evidence Dworkin himself provides to support his arguments; it should put it to the test in other areas (Atkinson 1979:541) . This is particularly justified given that Dworkin presents his work as an attempt to provide a comprehensive and overarching theory of legal practice. Furthermore, his project is not limited in application to any histori­ cal or jurisdictional region. Indeed, inasmuch as it purports to be relevant across both historical time and geographical space it falls squarely within Jean-FranC$ois Lyotard's definition of a metanarra­ tive: an all-encompassing theoretical project proposing both a comprehensive vision of history and a universal agenda for emanci­ pation (Lyotard 1986) . As Lyotard has argued, the political philo207

Brendan Edgeworth sophy of liberalism is just one version of such a project. Obviously, Dworkin's particular liberalism also qualifies. A preferable alterna­ tive in the area of property, for example, would be the affirmation of legislative and adj udicative projects that could take seriously on the one hand the specific histories and contexts in which redistribu­ tive policies had to be devised and, on the other, the local particu­ larities of hard cases to be decided. As the very tentative discussion of human rights and the notion of a fully human life has hinted, the grand purpose of doing justice in the different environments of the legislative chamber and courtroom should not be frustrated by an artificial shortage of freely available and more eminently service­ able tools.

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8

Dworkin's Dutiful Daughter: Gender Discrimination in Law's Empire Valerie Kerruish and Alan Hunt*

The Dilemma for Dutiful Daughters

In Law's Empire Ronald Dworkin proposes a theory of associative obligation in answer to the classical problem of political obligation, namely: do citizens have a genuine moral duty to obey the normat­ ive requirements of legal rules by virtue of nothing more than the fact that they are part of the legal system? He argues that law gives rise to such moral obligations only if it is the law of a 'true community'. Such a community is one which, in addition to meeting the conditions for being a 'bare community', also requires that the community's practices meet the conditions for 'reciprocity' (1 986:200) . Such a community, according to Dworkin, expresses the political virtue of integrity and gives rise to a general and abstract obligation to obey its laws. However, he recognizes that this abstract obligation cannot be simply concretized as an obliga­ tion to obey each and every legal rule. In other words he rejects the commonplace conservative argument, which moves from the moral duty to obey the law to the contention that this requires obedience to each and every rule of law. 1 The reason why an abstract duty does not necessarily generate a concrete legal obliga­ tion is that integrity is not the only relevant political virtue; in particular the requirements of justice must also be taken into

*

We are grateful to Peter Fitzpatrick and Hans Mohr for their comments and suggestions on an earlier draft. 1 . Dworkin's rejection of a conservative theory of legal obligation underlay his earlier defence of civil disobedience; see 'Civil Disobedience' (Dworkin 1978:206).

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Valerie Kerruish and Alan Hunt account. The result is that there is (at least in our imperfect world) a standing possibility of conflict between integrity and justice, such that citizens may be faced with genuine dilemmas as to whether they should obey some particular legal rule. Thus far Dworkin's position is consistent with the liberal posi­ tion he espouses. 2 We will, however, argue that one of his maj or assumptions, namely, that personal obligations are continuous with political obligations, shifts his position decisively towards the conservative wing of liberalism. It is just this assumption that underlies the illustrative example he selects of a conflict between the requirements of an established social rule and other precepts of justice. His example is the dilemma for dutiful daughters; and it is through a consideration of this example that we will interrogate his theory of the obligation to obey the law. Dworkin asks us to consider a community within whose culture parents choose the spouse for their daughters but not for their sons. We are asked to assume that the institution of the family within this culture satisfies the conditions of reciprocity and is thus a true community, with the consequent obligations of obedience for its members . More specifically, he asks us to accept that the practice is not grounded on an assumption of unequal concern and respect owed to women. However, although the culture accepts equality of the sexes, the discriminatory practice regarding parental choice is not so inconsistent with 'the rest of the institution of the family' that it can easily be interpreted out of the culture as an aberration (1986:205) . Accordingly, we must suppose that good faith pater­ nalism towards women in all aspects of family life is the only feature of the institution that we are justified in regarding as unjust. Now we have the conditions of a genuine conflict between prin­ ciples of integrity and justice. Dworkin's account of it should be quoted in full. Now the conflict is genuine. The other responsibilities of family mem­ bership thrive as genuine responsibilities. So does the responsibility of a daughter to defer to parental choice in marriage, but this may be overridden by appeal to freedom or some other ground of rights. The difference is important: a daughter who marries against her father's wishes, in this version of the story, has something to regret. She owes 2. The fullest account of Dworkin's understanding ofliberalism is in 'Liberalism' (Dworkin 1985 : 1 81-204).

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Dworkin's Dutiful Daughter him at least an accounting, and perhaps an apology, and should in other ways strive to continue her standing as a member of the community she otherwise has a duty to honor. (1986:205)

The dutiful daughter's dilemma is thus posed as a particular in­ stance of the problem of unjust laws within an overall just legal system. Our contention is that Dworkin's resolution of the dutiful daughter's dilemma is conservative, not merely because it imposes the responsibility for resolving the conflict upon the party who is wronged, but because it places a burden of obligations (to account, honor, and perhaps apologize) on that party as the price of pursuing her rights . Even if we assume that he would concede that the father has a correlative duty to sustain familial relations with his daughter it is significant that Dworkin does not refer to it; nor is there any suggestion that the father might owe an apology to his daughter. His solution is also, and perhaps more fundamentally, conserva­ tive in that it ascribes an abstract obligation to the daughter to accept the normative power embedded in the discriminatory rule. We presume that Dworkin does not approve of the offending practice; rather he uses it to illustrate the possibility of genuine conflicts between individual rights and culturally prescribed rules. However, the weight he gives to the abstract obligation to obey the law of a true community has the effect of legitimizing its laws irrespective of their content. The result is that his solution offers no guidance, either practical or theoretical, towards the task of ending sexual discrimination. The parable of the dutiful daughter high­ lights the need for a theory of the obligation to obey the law that is sensitive to the issue of standpoint within a sex-gender structure. 3 The ideological stakes are high. Dworkin is a bright star in the firmament of liberal legal and political philosophy and Law's Em­ pire is an ambitious work. It proposes a utopian vision of continued progress towards an ever more complete substantive justice, which not only p rovides a justification for the institutional and constitu­ tional structures of the United States, but also argues for the extension of liberal legalism into the fields of moral and political philosophy. Plato's philosopher kings, it would seem, have been 3. For a discussion of standpoint in relation to both gender and class see Cain (1986).

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Valerie Kerruish and Alan Hunt downwardly mobile all this time, 4 and religion of the old-fashioned sort, which was serious about the existence of God as King, seems to have departed the scene, leaving only a legacy of protestantism with a small 'p'. In earlier work Dworkin had been content to represent law as an exemplary instance of conflict resolution. We have an institution that calls some issues fro m the battleground o f power politics t o the forum of principle. I t holds out the promise that the deepest, most fundamental conflicts between individuals and society will once, someplace, finally, become questions ofjustice. I do not call it religion or prophecy. I call it law. (Dworkin 1 985:71)

In Law's Empire he goes further and proposes a metaphysics of 'the law beyond the law', 5 which discovers 'matter in this mysteri­ ous image' (1986:400) . This matter is the stuff of our political morality. While we would readily seek alliance with Dworkin's powerful defence of welfare principles against their conservative opponents, this should not blind us to other facets of his position that are far from progressive. His theory of the 'true community', we will argue, is grounded in ontological individualism, pragmatic personification, and utopian political philosophy and is, as such, an apologetic misrepresentation of contemporary liberal democratic society. In order to support these contentions we will, first, analyse the underlying assumptions and the structure of his presentation of the dilemma of the dutiful daughter; in particular this will require us to focus attention on his conception of political community. Second, we will criticize his ascription of rights, responsibilities and obliga­ tions within political community. In conclusion we will outline an approach to political obligations more adequate to a transformatory project concerned to challenge sex-gender discrimination.

4. 'The courts are the capitals oflaw's empire, and the judges are its princes, but not its seers and prophets. It falls to philosophers, if they are willin g , to work out law's ambition for itself, the purer form oflaw within and beyond the law we have' (Dworkin 1 986:407) . 5. For an intellectual history of this metaphor and an account ofits significance in American jurisprudence see Dickinson (1 929).

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Dworkin's Dutiful Daughter Dworkin's Conception of Community

Our interest in the dilemma of the dutiful daughter is not in some minor byway within Law's Empire; the issues involved go to the heart of his proj ect. Chapter VI, ' Integrity', is the one in which he elaborates his organizing concept and ideal of integrity. It is here that he advances his conception of 'true community'; and it is in the course of this discussion that he poses the dilemma of the dutiful daughter. His aim in constructing the dis tinction between bare and true community is intimately related to an important argument in his version of liberalism that he sees as being distinctively modern and that overcomes many, if not all, of the orthodox criticisms directed against the individualism of classical liberalism. This argument attempts to ground claims about individual rights in associative relations. 6 However, although the liberalism that Dworkin develops abandons methodological individualism, it continues to confer ontological and political privilege upon the individual as citizen. The centrality of the associative individual or citizen is manifest in his persistent preoccupation with the possibility of structural con­ flict between society and the individual; it is still the threat of illicit public (rather than private) violation of individual/citizen rights that is the hallmark of" his political concerns. It is a significant feature of the liberal problematic that the threat to rights is seen as coming from the associated community or state. It is not that Dworkin denies either the power potential or the impact of corpor­ ate capital; rather he ignores it. The real problem is that the orthodox liberal dualism of the public/private within which he works is uncomfortable about the conceptual status of public power and persists in seeing the contemporary political agenda as constituted as an arena of contestation between the individual! citizen and the state. It is not surp rising that the socialist and the nonliberal radical traditions have encountered no such problems and have focused attention on the interaction of corporate and state power as the s ource of social and economic oppression. Dworkin's abandonment of methodological individualism has its roots in his focus upon 'social practices' (1986:6) . We might say that it is social practices that form his theoretical object (obj ect of 6. Dworkin's rejection of methodological individualism is most clearly seen in his polemical rejection of the model of liberalism critiqued by critical legal theorists (1986:271-74 and 440-44).

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Valerie Kerruish and Alan Hunt inquiry) . However, he retains an empiricist ontology in insisting that 'flesh-and-blood people' (p . 1 68) are real - that is, have an 'independent metaphysical existence' (p . 171) in a way that society is not. Society, for him, is a personification (a metaphor) of 'our' thought and language. It is this retention of an empiricist ontology that we call his ontological individualism. Social practices and individuals are linked, in Dworkin' s view, by interpretive activity. So while he says that 'social practices are composed, of course, of individual acts' (p . 63), he goes on to stress that an adequate or full understanding of social practices requires interpret­ ative activity and reference to an interpretive communityJ The implications of his treatment are made clear in the ' crucial distinc­ tion' he draws between interpreting the acts of individuals 'one by one' and 'interpreting the practice itself, that is, what they do collectivel y' (p . 63) . 8 The substance of Dworkin's conception of the political com­ munity may be summarized as follows: (a) Social practices are sets of individual acts, but their meaning is 'social' because it can only be discerned by people participating in social practices. (b) 'Flesh-and-blood' individuals are real in the sense in which community (group, society, state) is not. They are characteristi­ cally human by virtue of their associational practices. (c) Political community is spoken of as ifit were a 'special kind of entity distinct from the actual people who are its citizens' (p. 168) . It has no 'independent metaphysical existence' (p. 171) but is a creature of practices of thought and language, which personify it in order to ascribe moral agency to it ('pragmatic personification') . (d) Associational responsibilities (and ultimately the obligation -

7. The emphasis on interpretation embodies a generalized hermeneutic perspec­ tive on Dworkin's part, which starts from the insistence that the interpretive attitude involves recognition of the significance of the meanings that participants attribute to social practices. He draws primarily upon Gadamer (1975) and also on Habermas (Dworkin 1986:420). For fuller discussion see Kerruish (1988). 8. It may be objected that Dworkin draws a too simplistic distinction between the individual and the social. If the social is conceived as 'what they do collectively', then it displaces the social into an exceptional ghetto, since collective action in the literal sense is rare. The really difficult sense of sociality is the sense in which our individual actions can also be said to be social practices. Here we encounter some of the central epistemological and methodological problems of the social sciences; it is sufficient for our purposes to note the inherent limitations of Dworkin's distinction between the individual and the social.

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Dworkin's Dutiful Daughter towards law) arise only when certain conditions are met. The first level, 'bare community' , is distinguished from the higher stage, 'true community' , which exists only when the community's prac­ tices meet the requirements of reciprocity. For present purposes the significant requirements are the first, that members of the group must regard the group's obligations as internal to the group and not owed equally to persons outside it, and the last, that members of the group show 'an equal concern for all members' (p. 200) . (e) The existence of a true community generates a general and abstract obligation of obedience to that community's laws. The dutiful daughter, as a participant in a true community, faces a dilemma because her obligation of obedience to the community's laws conflicts with her abstract right to choose her own spouse. Pragmatic personification and ontological individualism are central features of this theory. The former relies on the idea of an interpretive community, which we suggest is problematic. We may, following Wittgenstein, think of an interpretive community as constituted by those who share a form of life (1 958) . Unfortu­ nately, neither Wittgenstein nor Dworkin attempt to specify what is involved in sharing a form of life. Dworkin merely asserts the constitution of interpretive communities by agreement On the most general and abstract propositions about a given subject, whether it be law or art, the state or courtesy. He tends to assume that these interpretive communities are roughly coextensive with the nation­ state. What is absent is any appreciation of the fractured and complex nature of communities in the real world; hence he tends to assume a unitary model in which, for example, the majority share an interpretive community with respect to law and those who do not share it are dismissed as deviant (1986:71 ) . We will consider the implications of our criticism of his conception of an interpretive community below when discussing associative obligations. The conception of ontological individualism, as we have indicated, treats 'flesh-and-blood' individuals as 'real' because they are sensu­ ously perceptible, thus importing an empiricist conception of 'reality'.

Associative and Political Obligation

Before considering the dutiful daughter's dilemma in more detail we should take stock of what is at stake. Dworkin's line of argument is 215

Valerie Kerruish and Alan Hunt designed to extend our intuitive acceptance of the existence of binding obligations in intimate or local communities (e. g . , family, friendship, etc. ) to an acceptance of equivalent obligations towards societal communities and, in particular, towards state institutions and their legal systems. In his view there is a necessary connection between integrity and the moral authority of law. A conception oflaw must explain how what it takes to be law provides a general justiflCation for the exercise of coercive power by the state, a justification that holds except in special cases when some competing argument is specially powerful. (1986:1 90) \,

This is, of course, the classical problem of the legitimacy of state power. Although it is not i dentical with the question of political obligation, that is, whether the state's decisions impose genuine obligations on its citizens, the two issues are closely linked. [A] state is legitimate if its constitutional structure and practices are such that its citizens have a general obligation to obey political decisions that purport to impose duties on them. (1 986: 191)

The establishment of the existence of political obligation is, ac­ cordingly, the condition for the legitimacy of the state. The important feature of Dworkin's argument here is that he denies that there is a distinction between political and personal obligations; only with this assumption can a theory of political obligation be derived from intuitive conceptions of personal obli­ gations. It is therefore necessary to consider the two related con­ cepts of 'obligation' and 'legitimacy'. Obligation is concerned with the question: under what circumstances can considerations regard­ ing others override the freedom of action implied by the moral autonomy of individuals? Legitimacy is concerned with the ques­ tion: how is it that state agents have the right to coerce individuals? That the two issues are not symmetrical manifests itself in the characteristic liberal contention that there are many circumstances in which a person may have a moral obligation that it would be wrong to enforce by state coercion. The state, in Dworkin's account, is only entitled to invoke legitimacy claims for its coercive enforcement where it meets the requirements of being a true, rather than a bare, community, though even here it is not entitled to enforce all moral obligations.

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Dworkin's Dutiful Daughter The lack of symmetry between obligation and legitimacy might

be thought to give rise to two different types of relations of

obligation - 'personal obligations' between community participants and 'political obligations' of citizens towards the state. Dworkin denies such a duality of relations. He insists on a continuity be­ tween personal and political obligations; he does so by appealing to the idea of 'associative obligations' as the generic type of both. These are defined as

the special responsibilities social practice attaches to membership in some biological or social group, like the responsibilities of family or friends or neighbours. (1 986:1 96)

There are a number of problems with this account. The first is that these responsibilities are perceived as natural in that they embody what 'most people think' . It is precisely this taken-for­ granted 'what most people think' that grounds all forms of ques­ tionable inequality, one form of which - gender discrimination - is the focus of our present concerns. Such common sense naturalism fails to appreciate the historical and cultural contingency both within and between cultures as to what 'most people think' . The second p roblem is that his account of associative obligation is simply an extension from individual responsibility; political obligation is thus derived from personal obligation. 9 Dworkin is quite explicit that this shift is his obj ective. He claims that the 'best defence of political legitimacy' is to be found in what he describes as the 'fertile ground of fraternity, community and their attendant obligations' (1 986:206) . This derivation fails to address the obj ec­ tion that challenges the assumption of continuity between personal and political relations. Political relations, following Ignatieff, are 'relations between strangers' (Ignatieff 1 984), and this casts doubts upon any effort to derive them from reflections upon face-to-face relations . Dworkin anticipates this objection; he acknowledges that

9. A neoclassical (Aristotelian) derivation of political from personal obligation is explicitly advanced by Finnis (1980:chap. 6). An alternative derivation, the republi­ can tradition, is advanced by MacIntyre (1981). Dworkin proceeds along this path apparently unaware of its controversial implications. His derivation of the political from the personal is defective as scholarly political work insofar as it is neither related to nor distinguished from other versions of the same intellectual strategy. His decision to ignore Finnis is particularly surprising.

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Valerie Kerruish and Alan Hunt communal obligations are widely thought to depend upon emotional bonds that presuppose that each member of the group has personal acquaintance of all others. (1986: 1 96)

To avoid this objection he suggests an interpretation that is not just an interpretation of a single associative practice, like family or friendship or neighborhood, but a more abstract interpretation of the yet more general practice oj associative obligation itself. (1986:197, emphasis added)

But this simply begs the question since this more 'general practice', that is, political practice, is precisely the derivation from personal relations that has been challenged. The next steps in Dworkin's argument are sufficiently strange to warrant attention. Having asserted that which he undertook to examine, he next rejects a contractarian account of associative obligation (which is most unlikely to be the source from which the objection to the derivation of the political from the personal would come) . This rejection of contractarian views leans heavily on the good sense observation10 that many of our most important respon­ sibilites arise where we have the least choice, family membership and its res ponsi bilities being the most obvious case. But then he illustrates his point by reference to friendship, where choice plays a signiflcant role. He fails to make any point at all. He offers no argument; he simply reasserts his original contention that political obligation is a form of associative obligation and thus of the same type as personal obligation. He seems to be aware of the inadequacy of his own argument. He anticipates the objection that his solution to the problem of legitimacy is merely an evasion of it, and says: There is some justice in this complaint, but not enough to be damaging here. The new approach, it is true, relocates the problem of legitimacy and so hopes to challenge the character of the argument. It asks those who challenge the very possibility of political legitimacy to broaden their attack and either deny all associative obligations or show why political obligation cannot be associative. (1986:207) 10. 'Good sense' is that part of common sense that enables us to cope with our social and physical environment. The concept serves to stress that common sense is neither inherently good nor bad but is composed of elements of both good and bad sense (Gramsci 1971 :323-28).

21 8

Dworkin's Dutiful Daughter In the ftrst place this is an attempt to shift the burden of proof. But more significantly it blatantly distorts the objection, which was to the possibility of deriving political legitimacy from personal obli­ gations; it is changed beyond recognition to ' those who challenge the very possibility of political legitimacy'. Who? Where? They simply do not exist and D workin knows it! But his argument gets even worse; having set up a dummy opponent he now challenges it to 'deny all associative obligations' ; if one denies that political legitimacy can be derived from familial obligations it is surely ridiculous to impute the view that one is thereby denying the existence of familial obligations! We have encountered Dworkin at his worst; he anticipates an objection to his case and, rather than addressing it, he distorts and parodies it. The basic issue in dispute remains . Persons in political relations, typified by the relationship between state and citizens, do not associate, and this is a prima facie objection to deriving the ground of political legitimacy from forms of relationship that are characterized by their associational and even intimate character. But perhaps our response has been too polemical and too literal­ ist. Maybe we need to take a more relaxed view of the text in order to appreciate the flavour of his attempt to derive political legitimacy from personal associative obligation. Thus far our obj ections only go to what Dworkin calls 'fit' , that is, they are concerned with the sociologically descriptive adequacy of his account of political and associative obligations. If we were to leave the matter here we would be making the same mistake that Dworkin makes. For although political obligations, like legal obligations, necessarily presuppose the existence of political relations, treating political relations and political obligations as synonymous confuses and conflates different levels of social activity and thereby misses the central problem of political legitimacy. The point is that some political relations, as power relations, may be of questionable legitimacy. In other words we are arguing that there is a nonsym­ metrical relation between political relations and political obliga­ tions. All situations exhibiting political obligation involve political relations, but not all political relations involve political obligation. This must be the case unless the very idea of 'political' is equated with political legitimacy . This, however, is the means for the 'relocation' of the problem of political legitimacy to which Dworkin refers. He shifts it to the discursive level of interpretive 219

Valerie Kerruish and Alan Hunt attitude by treating the historical and material conditions of politi­ cal relations (bare communities) as necessary conditions of 'true communities' but not as constitutive of them. On the face of it his strategy is a trivial solution to the problem, which utilizes the tedious ploy of stipulative definition ('political' means 'legitimate') . However, showing that Dworkin has no de­ cent arguments in support of his thesis that political relations are associative, does not prove that they are not. We could rest our case here, claiming that the burden of proof placed on Dworkin by the sociological considerations we have invoked concerning political relations has not been discharged. The problem with such a strategy is that is misapprehends the power relations at play in the production of social and legal theory. It is therefore necessary to consider the political tendency of his argument. If this tendency is, as we have suggested, to leave the burden of resisting discrimina­ tion on its victims, it may be none the worse for that. Far be it from us to argue for paternalism or to concede the humanist conceit of the transformatory potential of elite forms of knowledge. But if it makes that burden heavier then it is, quite literally, an oppressive theory. If he still feels 'entitled - indeed obliged' to assert its truth, so be it. We will then be a little clearer about his political relation­ ship with the women's and other liberatory movements . 1 1 We will begin this consideration o f the political tendency of Dworkin's theory with a suspension of our skepticism and mistrust of his derivations of political obligation and legitimacy. We recall that he has renounced methodological individualism. He claims that the meanings with which he invests words are those of an interpretive community. His claim must be along the lines that most people think that 'political' means 'obligation attracting' or, to make his position more plausible, that there is a group of participants in our political culture who think that ' political' means 'obligation attracting'; and no doubt there is - a group constituted by those who agree on this general and abstract prop­ osition about 'political' . So we will concede that point. Let us also embrace the assumption that this group comprises 'most people'. We now turn our attention to the issue of whether this 1 1 . In Dworkin's 'Do We Have a Right to Pornography?' (1986:350), he insists that 'any political theory is entitled - indeed obliged - to claim truth for itself, and so to exempt itself from any skepticism it endorses'.

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Dworkin's Dutiful Daughter interpretation of 'political', and the solution it leads to concerning 'legitimacy' is justified. Nowhere is this more pertinent than with respect to our current concern with the duties of children towards their parents.

Attaching Responsibilities to Dutiful Daughters

We have followed Dworkin's account of associative obligations to this point in order to join issue with him about the obligations of dutiful daughters. The issue is whether the responsibilities that arise from the social practices of the family - which aside from its good faith paternalism is otherwise just - attach to daughters in a co­ herently defensible way. The relevant alternative is that they do not, so that, following Dworkin's own argument, the daughter's integrity demands and legitimizes resistance to them. We should first examine her circumstances in more detail. The institution of the family is deemed to be a true community; that is, the four reciprocity conditions that transform a bare community into a true community are met. The culture genuinely accepts that women are as important as men but it sees the special and differen­ tial parental authority over daughters as genuinely in the interest of all daughters. Associative responsibilities are, on Dworkin's ac­ count, subj ect to interpretation in which a conception ofjustice will play its 'normal interpretive role' in deciding what a person's responsibilities 'really are' (1 986:203) . This means that it may be a moral fact or a fact of normative consistency in the history of this community that daughters are not obliged to accede to parental wishes on marriage. In this case, the discrimination against daughters may be so inconsistent with the rest of the institution of family, that it may be seen as a mistake within it and not as a real requirement. (1 986:205)

But this circumstance does not obtain either. The unjust practice cannot simply be interpreted out because the culture 'in good faith thinks that equality of concern requires paternalistic protection for women in all aspects of family life' (p. 205). We have already given the full text of Dworkin's solution, but for ease of reference we repeat it here. 221

Valerie Kerruish and Alan Hunt Now the conflict [between justice and integrity] is genuine. The other responsibilities of family membership thrive as genuine responsibilities. So does the responsibility of a daughter to defer to parental choice in marriage, but this may be overridden by appeal to freedom or some other ground of rights. The difference is important: a daughter who marries against her father's wishes, in this version of the story, has something to regret. She o wes him at least an accounting, and perhaps an apology, and should in other ways strive to continue her standing as a memb er of the community she otherwise has a duty to honor. (1 986:205)

This argument amounts to the contention that subjective moral beliefs that are held 'in good faith' by an interpretive community can be the source of obligations so long as they are not inconsistent with the four, very abstract, requirements of reciprocity. The daughter has an abstract responsibility to defer to her father's wishes, but not a concrete obligation to marry the man her father chooses. The conflict is between the abstract responsibility, which comes from the general obligation to obey the law of the 'true community' , and an individual right not to obey any p articular unjust law. It is Dworkin's attempt to arrive at a sustainable resolution of this conflict that is controversial. The clash of obliga­ tions is resolved by a ' compromise' that spawns other concrete obligations (e. g . , to apologize, etc. ) ; these obligations all impinge upon and constrain the daughter. It is not clear that this solution is a genuine compromise, for while the daughter is able to escap e marrying the man her father has chosen, all the new obligations fall on her and none fall upon members of her family or the wider community. The dutiful daughter, it would seem, must 'buy' her right to choose her own spouse by undertaking new obligations. The obligation to account presumably involves a requirement that she explain to her father why she acted against his will. She is not, apparently , entitled simply to claim her right. To do so would expose her to the charge of being undutiful. Furthermore she must plead her cause according to criteria established within the com­ munity whose rule she refuses. Perhaps she should recognize that she has hurt her father in the eyes of his peers or disappointed his legitimate expectations. But as we concede the possibility ofloss or harm to the father, so we may insist that the daughter has similarly suffered loss or harm. She has been den ied part of her ide n tity as a moral person capable of choosillK her own partm�r; she ill denied this 222

Dworkin's Dutiful Daughter expression of her personality and her sexuality. Yet for Dworkin this does not raise the possibility that she be owed an account or an apology by her father in reparation. Accounting and apologizing aside, what does striving to con­ tinue her standing in the community entail? The good faith pater­ nalistic practices against which she reacts must be embedded in other practices that constitute the family as a community. Because, the terms of the problem are such that this is not an isolated example capable of being interpreted o ut. It is necessary to inquire what these other aspects entail. Are women confined to the home? Can they decide whether they will bear and rear children? Even when we confme ourselves to the single practice of partner selec­ tion we should ask Dworkin whether the dutiful daughter should teach her sons that their sisters and future wives have limited moral capacity. In general, should she be a party to the repression of female sexuality that underlies the community's rule? Dworkin is aware that a hierarchical social structure, which is the necessary consequence of good faith paternalism, is a persistent feature of many communities, but he thinks that it is possible to reconcile this with the requirements of 'equal concern'. [T]he structure and the hierarchy must reflect the group's assumption that its roles and rules are equally in the interest of all. (1 986:200)

The consequences of grounding obligation in the interpretive atti­ tude of 'the group' now become clear. It allows Dworkin to propose a test, which rests upon the sincerity or the good faith of those generating or defending a social rule, to determine whether genuine obligations are created. It is, accordingly, sufficient that the group genuinely and sincerely believes that the rule is consistent with the requirements of equal respect. There are a number of rather obvious objections to this. The first objection interrogates his conception of 'the group'. In Dworkin's discourse 'the group' or 'the community' invokes more than majoritarian democracy; it is not so much 'what the majority thinks' but rather 'what most people think' . 1 2 Maj ority talk leaves 1 2. Dworkin explicitly denics that his conception of the community is reduci ble to convcllliunal or 1!0 1!\lI�r morality, that is, to the beliefs and con v i ctio n s of most cltizena ( 1 1)116: 1 611) , H()w�ver, in most instanccs, he appeals to 'what most people think' 10 ll.ulbll,1I tho Inl,rpratlvc requirement of 'fit'. Thereafter it is for the

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Valerie Kerruish and Alan Hunt space for the presence of a minority whereas 'most' merely avoids connotations of universality and group minds while managing to devalue minorities and their role in discursive struggles within communities to a point of exclusion. 1 3 These considerations make it important to inquire how 'the group' comes to be constituted. If the public space within which social norms are generated is peopled by males then it matters what view they form of what is in the best and equal interests of women, and that holds however sincerely they hold their views. Closely connected with this is the objection that Dworkin's appeal to 'the group' and his failure to inquire how it is structured in terms of sex-gender relations provides a convenient mask, which disguises the fact that the dutiful daughter may be oppressed not by 'group­ think' but b y 'male-think' . Dworkin chooses to ignore the social fact that attitudes towards hierarchy vary with the position occupied within the hierarchy. For example, he suggests that armies may qualify as fraternal organiza­ tions where the test of sincerity is met such that their hierarchical structures are regarded as being in the best interests of all ranks. He takes no account of the possibility that although the officers may justify the hierarchy of power/privilege/danger in terms that meet his test, these arrangements may be significantly less persuasive to the ordinary soldier. The latter, however, will have no alternative (except in rare but significant outbreaks of military democracy) but to accept the typical military hierarchy as a fact of Hfe. We make no claim that those low in hierarchies necessarily reject the legitimat­ ing rationale of the appeal to 'the best interests of all'. Rather we claim that our approach has the merit of putting on the agenda the very important question of how and why those who are disadvan­ taged by hierarchical structures and discriminatory practices come to accept (in all the varieties of acceptance from enthusiastic en-

interpreter to impose his [sic] purposes on the practice, which , 'if popular enough, contributes to its own vindication' (1986:407) . What is the interpretive community that personifies society in its practices of thought and language? At best it is just what Dworkin denies it is - conventional or popular belief - and at WOrst it is the ideology of the liberal intellectual establishment. 13. We borrow the concept of 'discursive struggle' from Abercrombie et.al. (1986). This concept has the merit of capturing the sense in which an interpretive community, while sharing, in Wittgenstein's sense, a way oflife, constantly engages in a contestation over the language it employs.

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Dworkin's Dutiful Daughter dorsemcnt to cynical resignation) both the fact and the legitimation thereof. The central deficiency of relying on a subj ective test of sincerity is that it provides no way of distinguishing between crude rational­ ization of inequality in the language of 'equal concern' and the sincerely held, albeit erroneous belief, that some hierarchical or discriminatory practices serve the best interests of all participants. A subj ective test of sincerity can never yield any solid ground from which to judge discriminatory practices . This should be especially obvious when judging political rhetoric. What kind of challenge to sincerity could succeed against the counter that it is merely evi­ dence of the challenger's own subjective bias? What kind of evi­ dence would Dworkin admit on which to ground a challenge to sincerity? Consider Margaret Thatcher's consistent opposition to economic sanctions against South Africa. One important limb of her argument has been to invoke criteria of equal concern with the contention that economic sanctions would inflict disproportionate suffering on the black majority. How are we to evaluate such a position? Since we do not have any independent criteria of sincerity it is futile to debate whether or not she is sincere. Even if we could determine sincerity it does not follow that sincerity saves or other­ wise helps a bad argument. This challenge is to the relevance of the test of sincerity; discriminatory rules are no less discriminatory because they are adhered to with sincerity. We might go further and suggest that the sincere sexist is more of a problem and probably no less morally reprehensible than one who hides behind an ideological mask or who denies the equality principle. Dworkin's response to these obj ections would be that they miss the point; he has given up methodological individualism and by this means has gone beyond the objective/subjective antithesis around which our objections revolve. The interpretive attitude of good faith paternalism that exists within the hypothetical com­ munity is quite different from the sincerely held beliefs of individ­ uals. It is, he tells us, the culture that thinks this way : . . . the culture accepts the equality of sexes but in good faith thinks. . . . (1986:205)

And looking back at his discussion of reciprocity, we are reminded that it is 'the group 's assumption that its roles and rules are equally in

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Valerie Kerruish and Alan Hunt the interests of all' (p. 200, emphasis added). His claim is that the community as such can be committed to principles or held to a collective responsibility that is not reducible to the moral obliga­ tions of individual participants; it is this that gives the community its status as a moral agent. [T]he community can adopt and express and be faithful or unfaithful to principles of its own, distinct from those of any of its officials or citizens as individuals. (1986:1 72)

Yet at the same time he is most insistent that this does not involve a metaphysical lapse into the supposition of a group mind. What we need to clarify is what this community is if it is neither the aggregation of its members nor a group mind. To answer this question we must take up Dworkin's account of the personification of the community. His account may be summarized as follows. To make sense of many of 'our' views and beliefs about the political community (for example, that the community has an obligation to provide for the education of its citizens) we 'need an idea' that the community as a whole has obligations and responsibilities (1986: 1 75) . So we engage in practices of thought and language that personify the community, that is, 'we' think and speak as if the community were a person. Dworkin takes this linguistic practice and seeks to transform a useful and convenient metaphor into a philosophical ground for attributing moral agency to collective entities such as states, nations and communities. We suggest that this strategy is unacceptable because it fails to take cognizance of the inherent limitations of the original metaphor. The metaphor provides a way of speaking about complex social entities as unitary subjects but it is simply silent about the way in which collectivities are not reducible to individuals . It is in this respect that social and political theory is faced with the difficult problem of seeking to interrogate both the similarities and differences between the entities that the metaphor links . There is quite simply nothing to be gained by adopting a metaphorical usage as if it solved the more difficult theoretical problem that the metaphor conceals or obscures. Dworkin's view of community conceived as a personification is dependent upon the interpretive community (the 'we') that he assumes to be founded on an interpretive consensus . Our objection

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Dworkin's Dutiful Daughter is that this offers a dangerously oversimplified conception of the nature of political communities . Dworkin's unitary conception of an interpretive community, with the presumption that it involves a shared 'form of life', leaves unexamined the sociologically im­ portant question of the complex coexistence of interpretive consen­ sus and 'dissensus' between constituent groups and classes within any concrete community. His simple unitary conception, epitom­ ized by his unexplored category 'we', has the effect of universaliz­ ing the interpretive perspective of one constituency, namely of lawyers and judges, and ignoring or omitting the interpretive practices of other participants in legal or other social practices. We want to emphasize the potential for interpretive conflicts that manifest real differences in perspectives and life situations. This can be simply illustrated by reference to Dworkin's illustrative example of 'courtesy ' . The interpretive community whose voice he hears is one that offers a modernized version of courtesy; no longer should peasants doff their caps to their masters merely because of superior rank, but rather courtesy is transposed to imply 'respect' . But looked at from the standpoint of the subordinate, 'courtesy' has always been and, we suggest, has remained a mechanism for securing, policing and reproducing social difference and as such is a mechanism of power. Those expected to practice courtesy experi­ ence it as a manifestation of power r elations; they, in turn, express themselves in many different ideological responses from endorse­ ment of the power relations, to compliance with subtle irony ('Yes, Sir; No, Sir; Three Bags Full'), through to resistance. A powerful exemplifIcation is provided by Margaret Atwood when she de­ scribes how the captive handmaid is elated at discovering the inscription by a previous inmate of 'Nolite te bastardes carborun­ dorum' inside a closet; the joy of resistance is not diminished by her inability to translate the slogan (Atwood 1 987). One way of generalizing this issue is to point to the absence in Dworkin's discussion of any recognition of ' discursive struggle' as constitutive of all communities; i t is not that we take issue with the importance of interpretive communities but that we regard his view as being na'ive. Dworkin's personiflcation of the community has three fatal and interrelated weaknesses. First, it ignores the competitive relation between interpretive communities . Second, it ignores the power dimension active in determining the outcomes of these competitive 227

Valerie Kerruish and Alan Hunt encounters. Third, it presumes a high level of both the interpretive and social integration of contemporary societies . His conception of the community is perilously close to being the assumption of a univocal agent. It is the voice, of course, of socially dominant discourses that Dworkin re-presents as the voice of the interpretive community and thus of the community. We contend that while Dworkin claims that the renunciation of methodological individualism supersedes the subjective/obj ective distinction, he simply displaces it by renaming it the internal! external distinction. The result is that the empiricist rej ection of the 'merely subj ective' (whether in science or law) by a positivistic insistence on veriflcation/faisification (Popper) and on the objective norm (Hart, Kelsen) , becomes in Dworkin a rejection or exclusion of those interpretive communities whose meanings are 'outside the community of useful or ordinary discourse about an institution' (1986:71 ) . W e encounter here an important component o f Dworkin's ar­ gumentative strategy, one that revolves around his distinction between internal and external skepticism. The point at issue con­ cerns the legitimate boundaries of disagreement within the inter­ pretive processes that he takes to be the core of what is involved in legal argument. Dworkin mounts an argument in favour of adopt­ ing ' the internal, participants' point of view' of which, he says, 'the judge's viewpoint' is the most useful paradigm (1986: 1 4) . 14 Dworkin conflates two related but different features of any 14. In setting up the defence of the internal perspective, Dworkin advances a travesty of the alternative position, which is characterized loosely as critical, socio­ logical, or historical and advocated by those unspecified phantoms 'some people' (those unfortunate souls who are forever doomed to lose every argument). These general social-theoretic positions are apparently committed to the view 'that we will misunderstand legal process if we pay special attention to lawyers' doctrinal argu­ ments'; these approaches 'pay no or little attention to jurisprudential puzzles over the correct characterization of legal argument' (1986:12); they 'ignore the structure of legal argument' (p. 13) . This is argument by caricature, and as such it is a sad failure. The subjects cartooned are not identified, we suggest because no one holds these self-evidently silly views. Indeed it is significant that the positions he may have had in mind and that he subsequently criticizes in more detail - namely, Critical Legal Studies - does, in our view, distinguish itself by the very close concern its exponents give to the play oflawyers' doctrinal arguments. What is truly controver­ sial is how closely a theorist can adopt the standpoint and perspective of a particular role in the legal process without being so blinded by particular preoccupations that the end result is nothing more than an apologia for these sectional interests. It is our claim that Law's Empire is such an apologia.

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Dworkin's Dutiful Daughter adequate theory of law; he conflates hermeneutics with the adop­ tion of the insider's point of view. Any adequate theory must attend to the meanings constructed by participants in social prac­ tices; j ust how much weight is assigned to this hermeneutic dimen­ sion is controversial. But it does not follow from this recognition of the inescapability of the hermeneutic dimension that one is committed to adopt the internal view that Dworkin espouses. Law, like most social practices, involves a complex of participants and Dworkin's appeal to judicial argument as a 'useful paradigm' (1986: 1 4) is an insufficient reason for adopting the viewpoint of one category of participants if different or opposed standpoints are involved. Even if there is some obvious sense in which judges play an important role in legal practices, there are two objections to constructing legal theory around their viewpoint. First, to adopt one viewpoint is to exclude or minimize perceptions from other participants. Second, and in our view more serious, there is the danger that in standing so close to one of the participants the theorist listens only to the selected viewpoint and is unable to establish any critical distance from the interests associated with that role. Lapse into an apologetic or legitimating role becomes difficult to avoid and we suggest that Dworkin's text fails to avoid that lapse. What Dworkin does is to exclude all those constituencies that are outside his selective conception of the interpretive community. We want to insist that the damage inflicted by his approach is the exclusion of constituencies that are internal, in the important sense that they are minority or oppositional voices to the dominant paradigm. Because they do not share sufficiently in the values of the dominant group! class Dworkin, intentionally or otherwise, jus­ tifies the exclusion of their standpoint. Dworkin's commitment to equal respect and concern is itself put to the question; we question whether this commitment is manifested in his deafening silence over feminism , or in his unsavory linking of Marxism and fascism (1986:405) . If he is going to take arguments about the position of women seriously, then dissident voices from feminism and Marx­ ism must be heard. W e detect the same exclusionary tactic, in more sophisticated form, in his discussion of Critical Legal Studies, where he tries to separate out an unacceptable 'external' critique from a more domesticated and less radical critique, which he indicates his preparedness to treat by classifying it as 'internal' 229

Valerie Kerruish and Alan Hunt (1 986:271-75, 440-44) . Thejustification Dworkin might advance is that the excluded views are morally and/or politically false because they are inconsistent with the views of the interpretive community. Such a claim is procrustean and also illiberal in the sense of being beside the point of the value of liberalism for subordinated groups and classes . Dworkin, we would suggest, is unable to entertain oppositional voices because, lacking any decent understanding of ideology, he works with a unitary conception of the community's values. What the concept of ideology makes possible is to under­ stand the contested nature of community values and community discourses as the outcome of complex interaction, silencing, polic­ ing and resisting between dominant and subordinate paradigms. 1 5

Associative Obligations and the Obligation to Obey the Law

We have argued that Dworkin's resolution of the dutiful daughter's dilemma is indicative of a conservative turn in his intellectual position. How and why has this turn come about? A full answer to that question would locate his position in the context of the shift to the right in both common sense and academic discourse that has taken place over the last decade. Here we deal only with the conceptual dimensions of this change. We want in this section to support our contention that the conceptual root of his turn to the right lies in his denial of an important discontinuity between personal and political relations, and thus his conflation or elision of the personal and the political. 16 We have shown that the grounds for the obligations that Dworkin attaches to dutiful daughters rest on the interpretive attitude of the group. The group, however, exists as a homogeneous and autono­ mous entity only in Dworkin's own discourse. We do not sub­ scribe to the empiricist belief that the real constituents of the social group are the individual acts of real flesh-and-blood individuals. 15. For fuller discussion of the contribution of the concept of ideology in legal theory see Balkin (1987), Hunt (1985) and Kerruish (1991). 16. The point of the feminist slogan 'the personal is political', as we understand it, is nqt to conftate the personal with the political. Its importance has been to draw the attention of the male-dominated Left to the construction of the personal as an important subject for critical analysis and as a site of praxis.

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Dworkin's Dutiful Daughter Rather, we suppose that the real constituents of social groups are social relations, that is, persistent ways in which people relate and are related to each other as individuals, as classes and as genders, within a material and cultural environment. Social relations are not synonymous with Dworkin's theoretical objects, social prac­ tices. Social relations may exist outside the consciousness of human beings, whereas practices must be conscious (though not necessarily fully conscious) . 17 Social practices are indeed an important source o f meanings. Here, if we have a difference with Dworkin, i t is that we reject his essentialism. Our more salient differences appear at the next stage of analysis. Dworkin 'derives' the political community from the meanings and values associated with interpersonal rela­ tions of friendship and family. Our route is unapologetically sociological. 18 Philosophically we insist on the necessity of a rela­ tional ontology for an adequate description of the social world. Sociologically such a description must be made in terms of different types and forms of social relations that make it possible to capture the concrete complexities of social life. Dworkin's account of community ignores (or more actively it excludes) major categories of social relations. Most important is that his construction of community and political obligation takes place in the absence of class and sex-gender. The case of the dutiful daughter reveals his blindness to sex-gender relations. This blind­ ness is not simply a personal failure on his part (although it is this as well) . It is also a failure of the interpretive community of which he is a spokesperson, which has been shaped by an ideology that denies the structuring role of sex-gender relations in social life and thought. Women starting out from their historical experience of being dominated by men and recognizing that this domination resides at many levels of social practice have formed their own interpretive communities. Within a women's movement comprising many such com munities, political solidarity is not coterminous with the boundaries of nation states. Hence, feminists might well regard 17. Both sub-levels and supra-levels of consciousness, theoretically identified by psychological and ideological analysis, present the possibility of social practices as less than fully conscious. 18. Our account relies very heavily on the recent work of Maureen Cain, to whom we express a special appreciation. In particular our ideas have been greatly influenced by 'Realism, Feminism, Methodology and Law' (Cain 1986 and 1987).

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Valerie Kerruish and Alan Hunt their political community as being with other feminists rather than with their fellow citizens. The characteristics of these communities depend, in part, on the theoretical and political practices upon which they draw. Without losing sight of the diversity within the women's movement, it is feminist awareness of the systematic construction of gendered identity and gendered structures that underwrites the movement's capacity to further social knowledge and understanding. There are no doubt many scripts that would resolve the sparsely stated conditions of the dutiful daughter's dilemma. Rather than tying her into a discriminatory culture, we would provide her with a rite of passage that takes her out of that community and into others in a process of working out her feelings and thoughts about her relationship with her parents, her partner, and her children. She might leave sadly, but with a sense of relief rather than of regret, recognizing that it would be pointless to attempt to explain her actions to her father, since he had shown himself to be incapable of understanding her point of view. She may resolve to return to the community, when she has gained sufficient understanding of her­ self and others, to express care and concern for those suffering from its discriminatory practices by engaging in political activity aimed at changing those practices. Although Dworkin's construction of the problem of the dutiful daughter invites the use of language that suggests that the problem is a conflict between the individual and the community, our ac­ count refuses this invitation. The individual/social conflict is a central problematic ofliberal political philosophy. While we under­ stand the set of issues that liberals address we do not accept the assumptions that constitute their problematic. More prosaically, we do not accept that what they are talking about is, either self-evidently or as a matter of common sense, an individual/ society conflict. The conflict raised by the case of the dutiful daughter is not, in our view, between the daughter's individual justice rights to freedom and the obligations she owes as a member of a community to act and think in a way that acknowledges the moral coherence of the roles constitutive of that mode of associa­ tion. The problem has two dimensions and both are much closer to home. Its personal dimension is the conflict raised for individuals by loving others who cannot reciprocate that affection because they live by and within an ideology that denies the full identity of the

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Dworkin's Dutiful Daughter other. Its political dimension reflects contradictory principles of political ideology: the principle of bourgeois ideology, which de­ mands that political allegiance be given first and foremost to the political community of the nation state, and the contradictory principle, which requires solidarity within and across nation states with those with whom some standpoint is shared. We do not suggest that these dimensions of the conflict are not interactive; nor do we ignore the need to grapple with the dialectic of the personal and the political. We contend that Dworkin's resolution of the dilemma conceals the truth that the dutiful daughter's interests lie not with the unitary community of his account, but with those committed to ending sexual and other forms of discrimination. Her liberation only begins with the recognition of this necessity. Her dilemma is generated not by an individual/society conflict but by repressive sex-gender relations. The question that we insist D workin must be made to face up to is: how can a woman be expected to develop a full sense of self-awareness and personal responsibility while internalizing, however abstractly, the normative dimensions of a social practice that denies the full moral capacity of women? We do not overlook that strand of his analysis that recognizes her right as an individual to resist that ascription of moral incapacity and we have no quarrel with his assertion of such a right. But we consider that he com­ promises it by conflating her personal and political duties in his conception of the community to which the latter are owed. The issue we need to take up is identifIed by asking with whom the dutiful daughter has real or true political community. This brings us back to our earlier contention concerning the discon­ tinuity between personal and political relations. Participation in familial relations does generate a particular form of responsibility personal responsibility; in this context we concede that the dutiful daughter has responsibilities to her father, though we would take issue with Dworkin's jnsensitive understanding of those responsi­ bilities and with where he places their burden. However, his derivation of political obligations from personal obligations entails obligations to honor a group (in this case 'the community', but by extension the nation state) partially constituted by discriminatory social relations. Political relations h ave the general function of reproducing (or changing) the community as constituted. It is nonsense to imply, as Dworkin's position does, that the daughter

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Valerie Kerruish and Alan Hunt has political obligations to sustain those discriminatory structures. Thus, although the daughter has obligations towards her father, it does not follow that she has obligations towards the discriminatory familial relations within which her personal relationship with her own father is located. Discriminatory norms and practices can g enerate no political obligations from those disadvantaged by them. This is not because of an abstract right not to be discrimi­ nated against (though we do not deny such a right) , but because the daughter's real political community in this case is with those suffering fro m disadvantage. This community, her sorority, is in conflict with the community that promotes and justifies the dis­ criminatory norms and practices. No doubt it is Dworkin's belief that the regretful and apologetic assertion of the rights he permits the dutiful daughter will challenge the institutional foundation of the discriminatory practice. Here is the 'protestant idea', which places responsibility on 'each citizen . . . to identify, ultimately for himself [sic] . . . his community 's scheme' (1986: 1 90) . We find his position inadequate in that it provides her with the most limited entitlements and resources for resisting a form of discrimination that, he will undoubtedly concede, is deeply and pervasively embedded in the culture. Even if rights are 'pol­ itical trumps held by individuals' to be used to safeguard against infraction by the state (Dworkin 1 978:xi) , we must question whether they are necessarily effective or are sufficient to advance the interests of people resisting gender discrimination. 'Trumps' may not be enough when male-think determines the rules of their use. This practical inadequacy is demonstrated by posing two ques­ tions. First, how does Dworkin envisage that the daughter be­ comes aware of her rights? Second, does he envisage that she should only act on her own account? The daughter's access to knowledge of her rights is problematic, since it is unclear how she is expected to realize that she is unfree if, together with the other members of her family, she believes that she lacks the relevant moral capacity for freedom. Freedom and the capacity to exercise it are different, but they are also intimately related. We do not identify our inability to fly like a bird as a lack of freedom precisely because we recognize our incapacity to fly . N or will the daughter look across the table to her brothers and demand the same treat­ ment from their father because she is likely to believe that it is in her

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Dworkin's Dutiful Daughter best interest not to get it. 19 To put this another way, since ex hypothesi the community does not believe that the principle of equal respect requires that women and men be subject to the same rule, but rather that this has to be achieved by protecting women from their own choices, the daughter is all too likely to believe that she and her brothers are treated the same. Liberal theory encounters considerable difficulties in determining how such predicaments are to be overCome. One favoured route provides the expert lawyer advising the client of her rights. This solution is only a version of the Cinderella myth, the real social role of which is so sharply exposed by Simone de Beauvoir (1 972: 1 68 and 215), in which the powerless woman is rescued by the lawyer in the role of law 's prince. Such a solution has little in common with the history of the struggle for women's rights. Our second question is again practical: is the dutiful daughter entitled to act only on her own account? This presumes th
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Valerie Kerruish and Alan Hunt of their interaction develop a feminist theory to better understand their position. Working with such a theory they are likely to come to the realization that the good faith paternalism that ignited their reaction has its roots closely intertwined with social institutions other than the family (for example with the property and inherit­ ance system) . By whatever path some will reach the point at which their challenge encompasses the most general structural character­ istics of the society as a whole. Does Dworkin's position offer any grounds for supporting such structural challenge or does it limit his support to the pursuit of in dividual rights?2o We suggest that Dworkin has a real problem in meeting this challenge. The community that discriminates against daughters thinks that good faith paternalism is justified and since Dworkin has stipulated that it is the only unjust practice in a community otherwise having the virtue of integrity, they must, according to his argument, be entitled, even obliged, to assert the truth of their interpretation and to denounce the other as false. Accordingly they must be entitled to use the coercive capacity of the community against some, if not all, acts of the political exponents of such falsity. 21 Precisely because their community is a true (liberal) community, they will allow the dutiful daughter to assert her individual right. They will, to a greater or lesser extent, seek to ensure that she does so in isolation from her real political com­ munity. Just so long as she exercises her individual right, while regretting and accounting for her action, would she continue to honor the community by acknowledging the legitimacy not only of its discriminatory practice but its use of the political resources of the organized community to retain these practices. Dworkin, we contend, is no friend to the dutiful daughter. We agree that she is justified in refusing to participate personally in good faith discriminatory practices. But there our agreement with Dworkin ends. We have argued that far from having an obligation to maintain her standing in the community, she is entirely justified 20. We emphasize that we do not ask: would Dworkin personally support such political resistance? Our concern is whether his theory as elaborated provides any grounds or justifications for political action. 21. Real communities will, of course, differ as to where the line is drawn between disapproved conduct and that which merits a coercive response; typically, for example, bourgeois democratic states offer a protected or partially protected field of free speech and accordingly distinguish between speech and overt p olitical action.

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Dworkin's Dutiful Daughter in refusing to sustain the institution of the family in that culture and, furthermore, she is entitled to either leave the community or to engage in oppositional political activity within it. Her political obligations here are owed not to the political community that discriminates against her but to an actual or potential community that will resist that discrimination. We have pointed out that Dworkin is obliged, by the logic of his argument, to deny her these entitlements and would be hard-pressed not to have to justify the use of coercive power against her. Absent from Dworkin's political theory are the dimensions of power and hierarchy. Once these are introduced they problematize the relationship between rules or norms generated by the dominant group and the obligations of those adversely affected. The discrimi­ natory norms Dworkin describes establish political relations that, from the feminist standpoint, lack value in that they are disem­ powering. Their legitimation cannot be realized by an appeal to 'difference', but only on the basis of an appeal to superiority/ inferiority in gender relations. To claim that discriminatory as­ sociative practices may be legitimated by appeal to good faith, as does Dworkin, only serves to demonstrate the necessarily partisan nature of political legitimation in a hierarchical community. While it may be possible to claim that moral obligations towards that community are generated by principles of the responsible exercise of power appropriate to the good faith interests of the dominant group, we strongly deny that these obligations can be transferred to or imposed upon subordinate groups. To impose obligations to sustain discriminatory practices upon members of a subordinate or dominated group, we would have to believe that it is both rational and necessary for the oppressed to support their own repression.

Conclusion

Our position is distinguished from Dworkin's in three main re­ spects. Most immediately we provide a stronger and more firmly grounded case for the resistance of dutiful daughters in gender discriminatory communities or societies. We argue that, in addition to the private right to go against her father's wishes, which Dworkin himself recognizes, she has a right to engage in concerted political action to challenge not only the discriminatory practice but also its 237

Valerie Kerruish and Alan Hunt roots in other institutions and practices of the community. Second, we have outlined an argument against the gender blind­ ness, which by extension relates to class blindness, of his account of political obligation. To reinsert gender and class into political obligation leads to the important and radical conclusion that politi­ cal obligations vary depending on the relational position of the group or social category within any system of domination or subordination. This contention takes the place of Dworkin's de­ rivation of an abstracted set of political obligations of 'the citizen' . Hence i t follows that subordinated social groups d o n o t owe the same obligations as does the dominant social group towards a political community within which they are subordinate. Our argu­ ment does not imply that the subordinated have no political obli­ gations, merely that they are different. Further specification of that difference can only be made by reference to particular and concrete social contexts. Third, we have argued that the line of reasoning that has resulted in a conservative turn in Dworkin's position is his attempted derivation of political relations from personal relations. His desire to establish continuity between personal and political relations leads towards a legitimation of hierarchical structures because the as­ sumption of homogeneity in the interpretive community is such that structural or relational position has no implications for the interpretive stance of participants. In consequence we discover that equal respect and concern, in Dworkin's true community, comes down to, even requires and legitimates, the taking of an expression of female sexuality - choosing a partner22 - into the protective custody of men. D workin's earlier and more radical liberalism, with its defence of conscientious objection, advocacy of positive discrimination and espousal of equality of initial resources, has given way to a reluctant and apologetic acknowledgment of an obligation to honor gender discriminatory communities. Our inquiry into the fable of the dutiful daughter throws many of the distinctive features of Dworkin's politi­ cal philosophy into sharp relief. It has also shown that when the 22. We focus on partner selection as an expression of female sexuality precisely because one important dimension of paternalism (or patriarchy, as it is more often referred to in feminist literature) involves the denial of female sexuality as active choice and restricts it to a passive or responsive character.

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Dworkin's Dutiful Daughter high priest of liberal political and legal philosophy set out to systematize and popularize his views in Law's Empire he took a distinct lurch towards the right. The recognition of this shift throws a more accurate light on his theory even though it may not show his position in the best possible light.

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9

Impartiality, Bias and the Judiciary Sheldon Leader*

Introduction

What exactly is bias in the judiciary? The abuse seems easy enough to identify when we see the requirements o f fair procedure violated in establishing matters of fact, such as rules about cross examina­ tion or admissibility of evidence, and we suspect that this happens in order to get a result that the judge favours. But what is it to show bias in answering questions oflaw? What exactly are the constraints which, when violated, reveal that kind of abuse? It is tempting to say that bias consists in a failure to show neutrality towards the merits of the issue being litigated, particu­ larly when it engages strong feelings of political or moral convic­ tion. But when we look closely at this idea, we are brought up short. For an understanding has begun to cross the boundary between many legal philosophies: the understanding that we should stop looking for a model of the judicial decision as one that imagines the ideal judge refusing to take sides on controversial issues of politics or morality. When it is necessary to do so in order to decide the case, judges must and do take such sides. For example, they have to enter into the controversy over whether or not majorities of communities have a right to regulate the private lives of their members; many of the leading cases on the issue could not have been decided o therwise. 1

* I have greatly benefited from detailed comments on an earlier version of this essay from Stephen Guest and Jim Gobert. 1 . Tw o recent cases raising this question. Bowers v. Hardwick 106 S. Ct. 2841 (1 986) and Dudgeon v. UK, (Strasbourg: Council of Europe Repts, 1981 ) are discussed in this essay.

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Sheldon Leader If that is true, a question naturally emerges: how can we couple our realisation that judges often deploy their moral and political principles in deciding cases with our demand that they deploy those principles impartially? I shall, in this essay, try to hold both of these questions in view: working towards an identifIcation of political bias in the judiciary while also acknowledging that it cannot be politically neutral. In doing so I shall look closely at the insightful work of Ronald Dworkin. It offers an integrated set of answers to both of the questions, but the relationship between law and politi­ cal principle that emerges from this theory does not give us, I submit, adequate purchase on the phenomenon of bias. Before going further, its worth trying to defme our main terms more closely. To be biased in deciding a dispute, the Shorter Oxford Dictionary tells us, is to have an 'inclination or a prejudice towards one of the parties' . The Dictionary then defines impar­ tiality as the absence of bias. We can take further these two notions as they apply to adjudication in the following way: for ajudge to be impartial in deciding a dispute between two parties slhe must respect some constraint, which might produce a result that the judge would not have chosen without those constraints. The con­ straint might not always apply, leaving the judge free to produce the outcome slhe most prefers, but if slhe is impartial slhe will yield to the constraint when it appears right to do so. To be biased, in turn, is to respect no such constraint, but to arrange the elements of one's procedure so that one ends up deciding on a result that one would have produced without the constraint at all. There is, in addition, a nonintentional variant of bias to consider in what follows. That is, bias can be displayed when the back­ ground constraints acknowledged by a judge vary in a way that regularly favours one sort of outcome in answering questions of law rather than another, even if slhe does not arrange this by design. Impartiality, in turn, can be displayed when the back­ ground constraints do not vary in this way and with this effect. It should also be noted, again for later purposes, that bias is a particular sort of moral failing, and impartiality a particular sort of virtue; for one can produce evil consequences while being impar­ tial, and good consequences by being biased. Thus, a j udge can arrive at a morally condemnable decision impartially, as slhe would if slhe reluctantly concludes that s/he must, on the basis of a canon of statutory interpretation that slhe normally follows, find that a 242

Impartiality, Bias and the Judiciary particular individual is to be classified as of a certain race that the law aims to exterminate; or slhe can be quite biased while produc­ ing results that are otherwise quite praiseworthy, as where the same judge introduces an unorthodox method of statutory interpreta­ tion, that elsewhere slhe would never use, in order to avoid the worst effects of such a law.

Circularity

Now, one clear challenge to an account of impartiality in legal decisions is that it must avoid a particular sort of trap, which can threaten an adequate understanding of the relationship between law and political principle. On the one hand we know, as Dworkin tells us, that judges can and should be willing sometimes to abandon their favourite political principles so as to achieve best fit with the settled law. But what makes it difficult to convey this idea is that there is a difference between bare fit with the settled law and what amounts to adequate fit. The latter is, as Dworkin also insists, crucial for any judge to identify and is a threshold established inter alia in the light of the best political theory informing a judge's w orking conception of law . What will count as a binding prece­ dent, and what is to be the best strategy of statutory interpretation, are the results of selecting and weighing different elements of the legal system in the light of the best political theory. It is this in turn that contributes to a picture of adequate fit. When we push the model in this direction, of helping us to identify adequate fit, we risk moving in a circle. Thus if one judge favours, say, giving priority to recent precedent over older prece­ dent while herlhis colleague favours the opposite priority, then they will start out with different descriptions of the threshold of fit that demands to be satisfied before choices based on the substantive merits of competing solutions can be considered. A particular proposition may then display adequate fit with the settled law for the first j udge and inadequate fit for the second judge, or vice versa. But ifit is true that the conclusion that a proposition of law displays adequate fit can only be taken in the light of a political theory, then there is no way in which that political theory can be chosen by means of the test of adequate ftt. Such a test cannot simultaneously be a product of and guide for the choice of principles of political 243

Sheldon Leader morality. To claim that it can be is to take us in a circle (Leader 1 986:32ff; Simmonds 1 987:469fI) . Dworkin's later work aims to avoid this problem but, as I shall argue, it is not certain that he succeeds. If he does not, then this is more than a peripheral concern. For if a theory of law, and the practice it inspires, is liable to this defect then it renders the law vulnerable to ideology. I mean to use this word in a particular sense. It is not here understood as simply a connected body of moral and political beliefs. It is, in addition, a system of such beliefs that conceals parts of social reality, and this may include the obscuring of certain real mechanisms at work in political and legal decisions . This in turn can allow the interests of a dominant group within society to be misrepresented as the general interest. 2 I shall argue later on that this is so in some of the judicial approaches to the problem of the enforcement of morals. The law in this case is rendered vulnerable to ideology; it does not automatically purvey it. It will be so vulnerable if the j udge is able to claim that the solution s/he prefers in a hard case fits best with settled law, whereas the solution actually fits best with the settled law because of the political theory the judge thinks it best to deploy. Fears about the power of judges would then have a focus that is different from the one we are used to: one would no longer have to cope with a judge trading on the myth that s/he is neutral on issues of political morality, but instead with one that is forth­ right in admitting that s/he takes a position on such issues. Only now s/he might engage in the further myth that the position s/he adopts as s/he interprets the law fits the corpus of existing law more adequately than do those of a rival, when in fact s/he has merely described that corpus in a way that permits the position s/he adopts to take hold. The constraint of impartiality would silently dissolve, even though it continues to be advanced as an important value in the legal system. An ideology about adjudication would have taken root.

2. This feature of ideology is pointed to by theorists of otherwise very different persuasions. Compare, for example. Marx and Engels (1 967:439) with Geuss (1981 :Chapters 1 and 3).

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Impartiality, Bias and the Judiciary Impartiality and Integrity

One way in which one might try to avoid falling into a circular account is to draw a distinction between two regions of a judge's p olitical and moral beliefs: her/his beliefs about the substantive merits of competing arguments advanced in a dispute, and her/his beliefs about the best way in which disputes should be adj udicated ­ where each domain is informed by political and moral principles, but principles distinct enough to enable the one to be checked against the other. If we observe that s/he produces outcomes that regularly happen to favor her/his substantive beliefs over her/his declared faith in certain constraints on the j udiciary, then we might have a satisfactory touchstone for identifying bias. This is the strategy followed by Professor Dworkin. His model judge works with a complex political theory, and everything is not in play at once. Thejudge's own views about appropriate fIt are the product of one set of convictions about the appropriate structure of the sources of law, and these may be in fruitful tension with her/his substantive views about the right outcome in a case. 'The con­ straint fit imposes on substance, in any working theory, is . . . a constraint of one type of political conviction on another', as Dworkin puts it (1 985a:257) . 3 Dworkin maps out this terrain by distinguishing between justice, fairness, and procedural due process. Fairness in politics is a matter of fmding political procedures - methods of electing officials and making their decisions responsive to the elector­ ate - that distribute political power in the right way . . . . J ustice on the contrary, is concerned with the decisions that the standing political institutions, whether or not they have been chosen fairly, ought to make. (1986:164--f>5) ,

Justice is a quality of the outcomes of a decision procedure; fairness is a quality of the structure of that decision procedure. Fairness is both a quality of the process leading to legislation and a quality of the different process leading to a particular judicial decision. The former sort of fairness aims at the proper allocation of power 3. We fmd a similar description of internal friction between the elements of an author's or critic's conception of a good work of art (Dworkin 1985:170).

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Sheldon Leader between legislator and public, and the latter aims at the proper articulation of power between the judge and the community within which slhe is located. For the judge, respect for the fair allocation of political power calls on herlhim at certain points to defer to the will of the legislature, to the constitution, to public opinion, etc. All of these sources, each with a measure of authority over herl him, may lead the judge to choose an outcome that, on grounds o f strict justice alone, slhe would have preferred t o avoid. Procedural due process is, in turn, distinct from justice and fairness in that it is concerned with 'right procedures for judging whether some citizen has violated laws laid down by the political procedures' (Dworkin 1986: 1 65) . Respect for a doctrine of pre­ cedent can show respect for this value when the judge takes a particularly 'strict' view of the weight and character of precedent. Different views of precedent, however, may result from differing weights given to the other two values, as we shall see further on. 4 As the judge is called o n to interpret the law slhe must, Dworkin argues, often compromise her/his commitments to fairness and justice: sometimes deferring to the demands of the former in reaching a decision that the pull of justice alone would have led herlhim to avoid, and at other times feeling the pull of justice so strongly that the claims of fairness must cede. This compromise is effected in the name of integrity - the distinct political virtue of linking solutions that balance the demands of justice, fairness and the fair application of laws, with the added component of deploy­ ing that compromise between these ideals across the community in a way that can be defended on grounds of principle rather than by drawing lines in an ad hoc way ( 1 986: 1 78) . On this account, the possibility of bias in the courts emerges in the following way: Anyone who accepts law as integrity must accept that the actual political history of his community will sometimes check his other political convictions in his overall interpretive j udgement. If he does not - if his threshold of fit is wholly derivative from and adj ustable to his convic­ tions of justice, so that the latter automatically provide an eligible interpretation - then he cannot claim in good faith to be interpreting his legal practice at all . . . . He is acting from bad faith or self-deception. (1 986:255) 4. See the brief discussion in Dworkin (1986:405).

246

Impartiality, Bias and the Judiciary For future purposes, we can summarise this point b y saying that according to Dworkin the ideal judge may occasionally compro­ mise fit with the settled law in favour ofjustice, if the weight of the latter is clearly stronger than that of the former, but may not regularly vary her/his criterion of what counts as fit with the settled law to suit the demands of justice so closely that the constraint ceases to function as a real constraint at all. So far, so good. Problems arise, however, when we look more closely at the relationship between the three sets of beliefs: can they be kept separate enough in Dworkin's account to allow justice to be checked by fairness and due process? If not, then even if the theory provides an accurate portrayal of how many judges think, it is not so clear that we should follow the theory in its further ambition - to build onto its observation of practice the particular prescriptions for adjudication that it advances.

Internal Friction

Does Dworkin's account of the friction between the different parts of a judge's political principles, allowing some to be checked by others, enable us to break out of the circle? I do not think so, and the reason is that in Dworkin's picture there is the invitation to think that the model j udge could legitimately find a perfect adjust­ ment as a movement between those political principles that should help to resolve the substance of a conflict before the courts on the one hand, and the political principles governing the appropriate structure and method of adjudication on the other. The problem, in other words, lies in his conception of integrity. The ideal judge is meant to reach for a coherent decision between the domain of principles that help to fix the nature and character of the institution about which s/he is adjudicating - such as freedom of speech or the boundaries of trade union power - and the domain of her/his theory that assigns appropriate weight to different por­ tions of precedent or to different kinds of evidence of the intention of the legislator. With the ideal qualities of knowledge and judge­ ment possessed by Hercules, s/he would tailor the constituents of what counts as settled law to provide the most just outcome while simultaneously compromising just enough of the ideally just out­ come so as to fit with the settled law. As Dworkin puts the point, 247

Sheldon Leader The adj udicative principle that governs our law enforces inclusive integ­ rity: this requires a judge to take account of all the component virtues. He constructs his overall theory of the present law so that it reflects, so far as possible, coherent principles of political fairness, substantive justice, and procedural due process, and reflects these combined in the · righ t relation. (1986:404-5)

This does not break the circle. It would if, for example, the structural constraint of fairness always took priority over the substantive attractions of justice. For then one would have no grounds to fear that substantive convictions would colour struc­ tural ones in turn. But Dworkin deliberately refuses this option. He says that: No judge is likely to hold the simplistic theory that fairness is automati­ cally to be preferred to justice, or vice versa. Most judges will think that the balance . . . must be struck differently in different kinds of cases. Perhaps in ordinary commercial or private law cases . . . an interpreta­ tion supported in popular morality will be deemed superior to one that is not, provided that it is not thought very much inferior as a matter of abstract justice. But many judges will think the interpretive force of popular morality very much weaker in constitutional cases . . . [where] they think the point of the Constitution is in part to protect individuals from what the majority thinks right. (1986:250)

As a concrete illustration, we see Hercules' approach to a prob­ lem in tort. We imagine his choice between two principles that can guide an interpretation of the law, neither of which actually contra­ dicts the bulk of past decisions. One of the principles fixes damages for careless conduct causing foreseeable harm, without limiting the ability to claim such damages in circumstances that could impose massive and destructive financial burdens on people who have been careless out of proportion to moral fault. The competing principle limits the ability to claim damages in order to avoid just this sort o f destructive consequence for defendants (1986:241). The latter, says Dworkin, might be preferred by the j udge on grounds of substan­ tive moral principle, but it might fail his test of fairness since it might be a radical view not shared by any substantial portion of the public and unknown in the political and moral rhetoric of the times. He might then decide that the story in which the state insists on the view he thinks right, but against the wishes of the people as a whole, is a poorer story,

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Impartiality, Bias and the Judiciary on balance. He would be preferring fairness to justice in these circum­ stances. (1986:249)

Remember, however, that for judges who subscribe to this theory, it is open to them to believe that while 'an interpretation supported in popular morality will be deemed superior to one that is not', they are also entitled to qualify this with the proviso that popular morality will be followed only if it 'is not thought very much inferior as a matter of abstract justice'. It may well be, then, that another judge will deem the principle that imposes unlimited financial loss on a careless individual to be one that is radically inferior to its competitor as a matter of abstract justice, taking it out of the range of reasonable views held by the public, by which he is prepared to be bound. At that point, slhe would differ from her/his colleague, favouring the principle fixing limits on damages both on the grounds that it was substantively superior and that the con­ straint of fairness did not compel her/him to abandon it. So two things have happened in this second case, not just one: the second j udge doesn't just have a different appreciation of the qualities of the competing principles in front of her/him - also, the impact of the requirement of fairness on her/him is, as a consequence, different as well. S/he is not prepared to defer to public opinion on the issue, whereas the first judge is prepared to do so. Neither judge has tampered with her/his conception of integrity, itself fixed in advance. That is, before encountering the competing principles in the case, each had fixed in the abstract the weight s/he was prepared to give to the constraint of fairness in relation to justice and this has not changed to suit the outcome in the particular case. However, what looks ex ante like a protocol for an impartial decision, looks ex post very different. What seems fishy here is that when one stands away and looks across the decisions rendered by the two judges, one sees that the impact of the constraint of fairness has varied as a result of the different prospects for a satisfactory outcome that the judges offer. There is something further. It is not simply the impact of the other constraints that varies with the jud ge's substantive view about just outcomes, but also the very description of what those constraints amount to. We can see this with the constraint of precedent, a constraint sometimes taking on a strict character out of respect for procedural due process, and at other times taking on a 249

Sheldon Leader different, more flexible character as a result of respect for the other values. Again, an illustration can be drawn from Dworkin's dis­ cussion of the possible choice between our two principles fixing liability for negligence. Whereas the first principle, to be explicitly found in past decisions, contains no qualiflCation as to the liability for damages in the light of the circumstances of defendants, it may be, as Dworkin points out, that actual assignments of liability in those cases have always fallen short of what the first principle permits. The second principle could provide a competing explana­ tion of those results even though it has in fact been mentioned in no previous case (1986:247-48) . Do both of these interpretations fit the decided cases? Different judges, following Dworkin's theory, will have different answers. For as Dworkin himself points out, one judge may attach great importance to avoiding undue novelty, thereby staying close to what other judges have actually said. For this individual, says Dworkin, 'the political history of the community is pro tanto a better history . . . if it shows judges making plain to their public, through their opinions, the path that later judges guided by integ­ rity will follow' (1986:248) . However, Dworkin adds that a j udge must set these reasons 'against his more substantive political con­ victions', and if he believes that the principle limiting liability 'is much superior from that perspective, he will think it makes the legal record better overall by selecting it even at the cost of the more procedural values. Fitting what judges did is more important than fitting what they said' (1986:248) . So, in deciding our question in tort one judge will attach importance to what past decisions explicitly lay down, feeling obliged to forego the novelty of an interpretation announcing a fresh principle that slhe thinks the decisions implicitly display, so yielding the first interpretation as the law; while another judge will feel less bound by the actual words of those past decisions because slhe finds the first interpreta­ tion markedly inferior to its competitor as a matter ofjust outcome. Now, the worry here is not that the second judge is willing to go beyond principles explicitly stated in the law to those implicitly there. That seems quite legitimate. The worry is rather over the way in which this facet is woven into the overall objectives of Dworkin's theory, and in particular its aim to help a j udge avoid bias, as Dworkin himself describes that failing. For we began with a theory that aims to avoid the threshold of fit being so described as 250

Impartiality, Bias and the Judiciary to deliver the outcome that the judge wanted for independent reasons to deliver. Yet the fust j udge will listen to counsel advanc­ ing the interpretation limiting liability and will say that, as inter­ esting as it is, the principle advanced is unfortunately not the law. S/he will surely mean by this that, as attractive as it is, the principle does not pass the threshold offit; the second judge will fmd precisely that it does pass that threshold. In deciding what is to count as passing the threshold the two judges will have deployed different criteria. That is in itself inevi­ table and understandable, but in this model the dominant reason for the different ways in which the threshold of fit is set lies in the different attractions to each judge offered by the outcomes in the case: one finds the principle that does not limit liability so repug­ nant that slhe is prepared to ignore the fact that no previous case mentions it, while her/his colleague holds to the explicit statements in past cases as setting the threshold of fit with those past cases s/he is not so repelled by the prospect of unlimited liability for careless defendants. The difference between judges that we observe in this example could occur for a single judge across several cases. In some cases slhe could limit herself/himself to explicit reasons given in past cases as determining what the cases say, but if an interpretation offered is one that slhe finds particularly compelling as a matter ofjustice, slhe might then jettison this constraint and be prepared to look at what the cases implicitly say as well. In either event, the criterion for that which was meant to check outcomes can be varied to suit outcomes. If conceptions ofjustice can so affect the very description of the threshold of fit, then we have fallen back into the circular account from which Dworkin's theory aimed to escape. Moral and political principles that we thought were to be checked by fit with the settled law now affect the very description of that settled law, and can do so in a way that facilitates their deployment. Bias in the courts can emerge in an unintentional way.

Some Possible Objections to this Argument

It might be said that I am distorting Dworkin's theory by inflating a marginal feature of the j udicial practice it licenses into a central feature of that practice. When Dworkin describes the biased judge, 251

Sheldon Leader he distinguishes between the judge who occasionally and partially compromises her/his way of fixing the threshold of fit with both the settled law and the proper distribution of political power in favour of what s/he conceives to be particularly urgent demands of justice, from the judge whose 'threshold of fit is wholly derivative from and adjustable to his convictions of justice, so that the latter automatically provide an eligible interpretation'. In this way, pre­ sumably, we can distinguish the judge who departs from her/his recognised way of taking account of precedent, of statutory in­ terpretation, and of public opinion in order to avoid an egregiously unjust outcome from the judge who regularly tailors each and every part of her/his method so as to achieve the outcome s/he desires, and who is willing to do so not simply in the service of outcomes s/he feels raise fundamental and important issues of j ustice, but for the full range of outcomes, be the issue of principle minor or major. Why, it might be asked, make out the former sort ofjudge to be like the latter? The answer, it seems to me, is that the differences here are of degree, not of kind. The latter is an image of a totally biased judge, who almost never appears in reality. But how exactly is s/he different from the former sort ofjudge, who does occasion­ ally appear? To the party who has lost in an important case, is it relevant to learn that the first judge's departure from her/his ordinary standard of fit is , in the run of his decisions, a rare event? If anything, that marks the decision out as all the more a product of bias. As an example, we can cite the decision of Lord Denning, M.R. in Hadmoor Productions Ltd. v. Hamilton. s In this case he decided, against a well established convention shared by his col­ leagues, that he would examine P arliamentary debates in Hansard in order to discover the meaning of a provision in statute. The meaning he was thereby able to establish supported his substantive conviction, voiced in many cases, speeches, and writings, that trade union power needed to be controlled more closely. Quite apart from the merits or demerits of Denning's views about trade union power, this seems a biased way in which to give effect to them. Should we draw any distinction between varying the criteria for correct fit with the text of a statute so as to obtain 5. [1981 J 2 All England Law Reports 724, reversed by House of Lords [1982]

IRLR 1 02.

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Impartiality, Bias and the Judiciary what seems to be an overwhelmingly right and important outcome - as Lord Denning certainly thought he was pursuing - as opposed to a marginally right one? It is hard to see how the procedure is any less biased in the former case than in the latter. The reason this is so takes us back to the initial point made about bias as a particular sort of failing. It may itself produce, when all is said and done, a morally praiseworthy outcome, just as impartiality may produce a morally condemnable one. Dworkin insists on as much in the general run of his theory. Ifwe try to temper this point for what seem to judges to be particularly important matters of substantive principle, then we obscure the issue ofjudicial power in a democracy. At crucial points, judicial decisions will be allowed to vary in the respect they accord to the constraints of fairness and procedural due process as a result of outcomes they want to avoid or to achieve. This allows judges to claim that the political prin­ ciples they prefer £lt best with the law, when actually the law is seen as it is because it fits best with the political principle they wish to favour. As a second objection, I might be said to be taking aim at an obj ect of my own construction and not at the real theory: I am assuming that I am dealing with a model that aims to set substance and fit apart from one another, when by the theory's own account the two shade into one another. Thus, Dworkin tells us that 'the distinction between the two dimensions [offit and substance] is less crucial and profound than it might seem' (1986:231). The distinc­ tion helps to 'form a sense of when an interpretation fits so poorly that it is unnecessary to consider its substantive appeal because [the interpreterJ knows that this cannot outweigh its embarrassments of fit' (1986:231). But when considering two or more interpretations that £lt the bulk of legal history, it is not substantive considerations alone that £lgure; 'the formal and structural considerations that dominate on the £lrst dimension £lgure on the second as well' (1986:231). Dworkin is, in this quotation, exploring the parallel with interpret­ ation in literature, where considerations of the best integration of style and content might be more decisive than considerations of content alone in carrying on the enterprise of the chain novel. It is not difficult, however, to see how a judge might do the same, preferring one interpretation over another, where both fit the bulk of the law, on the grounds that the one s/he prefers carries further 253

Sheldon Leader considerations of fairness and justice as an integrated whole better than does the rival, which may be best on grounds ofjustice alone. S/he may, for example, prefer an interpretation of the law of blasphemy that keeps it in line with collateral developments in the criminal law rather than an interpretation that is faithful to the direct line of cases dealing with blasphemy, most of which were decided well before these recent collateral developments took place. Yet s/he may be much more in sympathy with the spirit behind the blasphemy cases, looked at alone. Both interpretations 'fit', but one m arries fit and substance more effectively than does the other, which would itself be preferable were grounds of substance alone decisive. 6 But while this shows that structural considerations cover much more ground than bare problems of fit with the settled law, figuring in the choice of solutions that have passed the threshold of fit, the theory still aims in this second dimension to show how structural considerations of fairness and due process can act as a check on justice, even when well into the second dimension of choice of rival interpretations on grounds other than fit. Yet here the problem remains that the impact and constitution of this constraint can be varied by the judge to suit the outcome s/he thinks it important to achieve. The only qualifIcation in her/his willingness to do so lies in outcomes s/he thinks it particularly important to achieve as opposed to those marginal enough to merit concession to the demands of fairness . As indicated, this does not slot the requirement of i mpartiality into its proper place - it subverts it.

An Alternative

The problem here, I submit, does not lie in Professor D workin's conception of impartiality, but rather in the way it stands against the b ackground of his conception of integrity. I have argued that the way the latter works makes it difficult to give the former purchase at crucial points. Furthermore it is not the concept of integrity that causes diffIculty, but rather the particular conception of it that we find spelt out. That is, the way in which the elements 6. See the discussion of R .

254

v.

Lemon, \1979) 1 AER 898 in Dworkin (1986:439) .

Impartiality, Bias and the Judiciary within the concept of integrity are articulated against one another, forming a particular conception of it, gives rise to the sort of circular relationship between fit and substance that leaves the concept vulnerable as a vehicle for an ideology of judicial power. It should be possible to take the same elements out of which the concept is built - fairness, procedural due process, and justice - and to cast their relationship with one another in such a way that the full political theory that results can have elements that act as a more steady check on one another in adjudication. To see how this might happen, consider again the requirement of fairness, this time in the context of litigation about fundamental rights. We can take as an illustration recent litigation about the right to privacy. Consider the case of Dudgeon v. U. K.7 Article 8(1) of the Euro­ pean Convention on Human Rights provides that 'Everyone has the right to respect for his private and family life, his home and his correspondence'. Article 8(2) provides, inter alia, that 'there shall be no interference by a public authority with the exercise of this right except as is . . . necessary in a democratic society . . . for the protection of . . . morals . . . . ' Northern Ireland's Offences against the Persons Act 1 861 prohibited buggery, and the Criminal Law Amendment Act 1 885 prohibited acts of gross indecency between men in public or in private. Mr. Dudgeon, a practicing homo­ sexual, sought a declaration to the effect that his right to privacy was violated as per Article 8(1) and that the restriction could not be justified as necessary in a democratic society for the protection of morals, as provided by Article 8(2) . The U . K. government claimed that the scope of the margin of appreciation for member states was es pecially extensive in the area of the protection of morals, and that they ought therefore to be allowed to regulate this domain without interference. 8 The Court of Human Rights found for Mr. Dudgeon. It said that in this sort of case the law 'touched the most intimate aspect of private life' , so violating Article 8(1), and that any reasons for j ustified restriction within the terms of Article 8 (2) ' must be par­ ticularly serious'. It held that no such adequate reasons had been given in this case, saying that there is : 'no pressing need to make 7. Strasbourg: Council of Europe Repts. 198 1 . 8. Ibid. p. 22, quoting Handyside v . UK (Strasbourg: 7 December 1 976 Series A, no. 24, p. 22 para 48).

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Sheldon Leader such acts criminal, there being no sufficient justifICation provided by the risk of harm to vulnerable sections of society'. It added that, 'although members of the public may be shocked, offended or disturbed by the commission by others of private homosexual acts, this cannot on its own warrant the application of penal sanctions'. It finally emphasised that it was 'not concerned with making value judgments abou� the morality of homosexual relations between consenting adults' (Dudgeon p. 1 6) . Judge Zekia o f Cyprus dissented, o n grounds o f interest to us. He refused to bring homosexual practices within the scope of Article 8(1) 's protection, not because he wanted to rid the com­ munity of homosexuality, but because the community did. North­ ern Ireland, he said, has 'a great majority of people who are completely against unnatural moral practices. Surely the majority is entitled to respect for their religious views' . 'A democratic society', he went on, 'is governed by the rule of the majority. It seems to me somewhat odd and perplexing in considering respect for one's private life to underestimate the necessity for keeping the law in force for the protection of the morals held in high esteem by the majority of the people' (p. 31). ' State authorities of each country are in a better position than is an internationaljudge to give an opinion as to the prevailing standards of morality in their country' (p. 23) . Compare and contrast the case of Bowers v. Hardwick before the U . S. Supreme Court. 9 The facts and question of law were for our purposes essentially similar to those in Dudgeon. A homosexual challenged the constitutionality of a Georgia statute that makes sod­ omy a crime. 10 The claim was that since this penalised private acts among consenting adults, it violated a right to privacy, which could be extracted from an appropriate reading of the Fifth, Ninth and Fourteenth Amendments. Mr. Hardwick lost. Mr. Justice White, speaking for the majority in the Supreme Court, stressed that they were not passing judgement about the wisdom of the legislation, but simply could not say that it offended the Constitution. 11 While the Court did not rej ect its previous case law, which has interpreted the Constitution's provisions so as to protect private sexual rela­ tionships in marriage and family, it refused to extend such protec9. Supra note 1 . 1 0 . Ga. Code Ann Para 1 6-6-2 (1984) . 1 1 . Supra note 1 at 2843.

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Impartiality, Bias and the Judiciary tion to homosexuality between consenting adults. 'The issue', as it put the point, 'is whether the Federal Constitution confers a funda­ mental right upon homosexuals to engage in sodomy' . The an­ swer, saidJustice White, was that it clearly did not (Bowers at 2843) . Like Judge Zekia in Dudgeon, the Court made it very clear that it thought the issue to be one about the limits of its own legitimacy. It refused to go against the will of the majority of the people of Georgia, since to do so, in its view, would be to step beyond its proper role in a democracy. As Justice White put the point, Mr. Hardwick had insisted ' . . . that maj ority sentiments about the morality of homosexuality should be declared inadequate. We do not agree, and are unpersuaded that the sodomy laws of some 25 states should be invalidated on this basis' (Bowers at 2846) . The Court wanted to respect the principle that 'the Constitution's text involves much more than the imposition of the Justices' own choice of values on the States and the Federal Government' (2844) . There was a dissent in the case, which in many ways followed the contours of the reasoning of the majority in Dudgeon. It rejected the notion that the case was about a fundamental right to engage in sodomy. It was instead about the right to privacy, and this right is more than 'the mere aggregation of a number of entitlements to engage in specific behavior' (2852) . Therefore, past decisions of the court requiring that privacy be respected in certain sorts of sexual relationships should be understood to have done something more than fix boundaries around those activities alone. They also estab­ lish, as the dissent puts it, a comprehensive 'right to be let alone', and as such the right should embrace this homosexual activity between consenting adults (2848) . The dissent also rejected the idea that 'the length of time a majority has held its convictions or the passions with which it defends them can withdraw legislation from the Court's scrutiny' (2854) . Before we consider a possible approach to the differences in these cases, we should consider the view that Professor Dworkin would be likely to take. He looks at positions similar to those of the maj ority of the court in Bowers or the dissent in Dudgeon in a discussion of what he calls constitutional passivism (1 986:369). 12 He argues that this orientation relies on two dubious claims about 1 2. The discussion does not specifically treat either case. Bowers was decided by the Supreme Court after the book was written.

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Sheldon Leader fairness. First is the claim 'that fairness, properly understood, demands that the majority of voters in any legislative jurisdiction be constrained in what they can do to a minority only by principles they themselves endorse'. Second is the claim that 'political fairness so understood is of paramount importance in the constitutional context, [such] that it must steadily be preferred to justice when the two are thought to conflict' (1986:376) . Now, as Dworkin points out, simple inspection of the American Constitution reveals th�t both claims simply fail to fit its general structure. The same can be said of the European Convention. For at several explicit points both Constitution and Convention demand that maj ority rule yield to its demands for the protection of minor­ ity rights. One cannot, for example, understand the procedural requirements for criminal trials in any other way (1986:376) . In other words, Dworkin argues, the Constitution demands that fairness yield to justice. As he puts it, it is clear that 'some constitu­ tional rights are designed exactly to prevent majorities from fol­ lowing their own convictions about what justice requires' ( 1 986:376). The crucial part of his argument then follows, addressing the precise issue in both of these cases. Once the passivist's claims about the character and i mportance of fairness are rejected as an explanation of the explicit rights that are present in the constitu­ tion, Dworkin argues tha t they 'cannot reappear as decisive over controversial cases that ask how far integrity requires these explicit rights to be extended to implicit rights not yet acknowledged' (1 986:377). In other words, if majority rule must already yield to some just outcomes it would prefer to avoid, inscribing particular rights of minorities, then when fresh demands appear for the inclusion of new minority rights within the scope of a broad fundamental right such as the right to privacy, then majority rule must also yield unless there is a convincing reason of principle for refusing to do so. What cannot be enough is the bald reassertion of the claim, 'the maj ority has a right to rule', without more. The problem with the analysis comes at this stage. For the species of judicial passivism that emerges from these cases - and they are quite representati ve of the passivist orientation - may well escape this criticism. Indeed, it might even be that it is an orienta­ tion that satisfies the constraint of integrity, as we are given the interpretation of that concept. Furthermore, once a threshold of fit 258

ImpartialityJ Bias and the Judiciary with integrity's requirements has been passed, we might have no way of knowing if passivism satisfies its requirements any better or any worse than would a rival orientation. The reason goes back to the way in which Dworkin allows fairness to be traded against justice. These passivist judges seem to be doing just that. That is, they do not hold to the view that maj ority rule should 'steadily be preferred to justice when the two are thought to conflict'. Passivism does not, despite its way of often advertising itself, involve a judge's complete shelving of her/his own views about just outcomes so as to allow those of the majority to win. Instead, the judges do take a view about just outcomes: it is that maj orities should be allowed to protect themselves from outrage at what they think is a norm of decent behavior. This is not a belief in majority rule as the best way in which decisions should be made, which is the province of a principle of fairness, but a view that a maj ority is entitled to protect itself against a particular sort of damage. As Robert Bork has written, in support of the position taken in Bowers, ' (P)hysical danger does not exhaust the categories of harms society may seek to prevent by legislation, and no activity that society thinks is immoral is victimless. Knowledge that an activity is taking place is a harm to those who fmd it profoundly immoral' (Bork 1990:1 23) . This view is then married to a concep­ tion of fairness, and this is where we find the rhetoric supporting the majority's right to rule, as opposed to the majority's right to self-protection. It is here as well that we find, as a corollary, the doctrine of the need for judicial deference to the legislature. The result in the passivist's position is an amalgam ofjustice and fairness. The general principle that emerges could be rendered as something like: 'majorities have prima facie a right to rule via their legislatures as freely as possible from constitutional constraints. This prima facie right can be overridden by clear minority rights to be found in the text of the Constitution, or it can be overridden if the minority has a claim to protection that amounts to a fresh right that is a reasonable and consistent extension of its existing rights, unless doing so provokes strong feelings of moral outrage in the maj ority of the community'. Such position marries a conception of fairness, informing the best way of reaching a decision, with a view about justice, inform­ ing a view of the right outcome of that decision. Professor Dworkin's conception of integrity would seem to allow this sort of marriage. 259

Sheldon Leader Of course there is plenty to find objectionable in it. Its child is a conception of democratic decision making that opens the way to intolerance. It is, in other words, likely to yield injustice. But if this is the course that the argument takes, then we have shifted ground from our previous concern. The critical work is now being done by notions ofjustice per se, and the conception of integrity is bearing very little weight on its own. We are now assessing a judge's conception of fairness by reference to the kind of just outcomes slhe produces, and yet we began by wanting a way of seeing whether or not a particular outcome emerges convincingly from a legitimate way of reaching the decision. Only then can the judge say that, in the distinct role ofjudge, slhe has a solution that merits our respect. In other words, if the demand of integrity is to have any pur­ chase, then fairness should act as a constraint on the choice of just outcomes, and be a constraint strong enough to deliver solutions in those marginal cases - those hard cases - in which views about what the outcomes should be are strongly and passionately divided. Yet the two-way movement between justice and fairness that the theory allows seems to deprive us of this tool. On Professor Dworkin's approach, the passivist is as entitled as is his critic to test her/his conception of fairness against the just outcomes it delivers. Furthermore, there is no way of saying that either satisfies the constraint of integrity better than the other (unless they happen to cheat on their own view of what amounts to fairness andlor justice more than the opponent does) . But what, it might be asked, about the dimension of fit? Can we not tax the passivist's principles ofjustice, and her/his principles of fairness, for their failure to fit with the actual legal and political history of the community for which slhe is adjudicating? Here again, we seem caught by the fact that it is difftcult to make the constraint o f fit with the settled law really do critical work for hard cases, given the way the requirement is conceived in the overall theory. For judges who accord weight to their convictions about justice are also allowed, on Dworkin's model, to fold them back onto their view of what is 'settled' about the settled legal, political, and moral history of their community. That history is not naturally given to us, but, as D workin convincingly shows, is the product of constructively weighing and ranking various competing parts of it, proj ecting some into relief as the major elements and placing 260

Impartiality, Bias and the Judiciary others into the background. This will be the result, inter aI/a, of 1\ theory of how that history should be constructed, worklnK through to a view of the best approach to interpretation of Klich things as a moral tradition, of common law precedents and of statutes. There is, in other words, no neutral body of history with which a proposition of law must fit. Instead, the identity of that body is in part a product of the interpreter's working conception of integrity. That much seems very right. What complicates the matter, however, is that, as we have seen, the general conception of integrity allows views about just outcomes to have their effect 011 this configuration of elements that constitute the past. Thull, it seems to be open to a judge to marry her/his convictions about the right of the maj ority to enforce sexual morality with a view that the constitution should be interpreted to accord with the ori!.!;illill understanding of its founders, and that one should approach pre­ cedent fixed by recent cases narrowly if the cases show a tendency to go beyond what that original understanding delivers and whll! current public opinion supports. Notice that s/he has in hand the core of the identity of the body of law, in the light of which later parts should be added. Other elements of that body of law, in the form of earlier precedents set by the Court, are definitely there IIIHI support a contrary view, but the judge is entitled to accord them limited significance. 13 They cannot, in her/his view, outbalance the force of the most important legal event, the foundation of the Constitution, coupled with the best interpretation of that event thllt the judge's integrated conception of j ustice and fairness deliver!!, since s/he sits (we assume) on the Supreme Court. Her/his politicRI theory does fit with the settled law as s/he is entitled to construe it, Of course, her/his opponents on the bench have it equally opcn to them, in the service of their strong and opposed convictions of justice, to heighten the significance of recent precedent, which lends implicit support to the extension of the right to privRcy to private sexual conduct between adults, and to look to more 13. Thus Justice White, in Bowers, did not seek to overrule cases such as GriM wold v. Connecticut, 381 US 479 (1 965) and Stanley v. Georgia, 394 US 557 (1 %1)), which have been taken implicitly to establish the existence of a right to privAI·Y. What the majority refused to do was to allow to scope of the right to extend 10 homosexual activity in private. As Justice White put it, ' . . . the privacy rlMhl, which the Griswold line of cases found to be one of the protections provided by tho Due Process Clause, (does) not reach so far' (106 S. Ct. 2841 (1 986) at p. 2R44) ,

261

Sheldon Leader contemporary understandings within the community of values to which the Constitution can be taken to have given formal expression. They will acknowledge the weight of public opinion but, as Dworkin entitles them to do, they can discount it if it falls well below their strong convictions about justice in this particularly important sort of case. In other words, each side in the division of opinion about the merits of the decision in Bowers can draw on Dworkin's conception of integrity by giving different content to the just outcomes they think it particularly important to achieve. The way is open to bias. An alternative conception of integrity can proceed in the follow­ ing way: it places in the centre the need for judicial impartiality towards outcomes, refusing to compromise fairness against any commitment to justice over an issue such as that raised in our two cases. When dealing with the boundaries of toleration, judicial integrity calls for the compromise of justice against fairness, but not the other way around. As an illustration of this strategy, consider the following ap­ proach to the problem raised in our two cases. 14 Let us agree that it is not the right of a judge to impose onto the community her/his moral convictions about the rights of individuals to enjoy personal liberty, nor about the right of a maj ority to protect its deep feelings. A fortiori, s/he is not entitled to substitute her/his own conception of appropriate sexual morality for that of the com­ munity. However, s/he must be faithful to the obligation to allow the community as a whole to pursue its conception of sexual morality. On the issue of which such morality is appropriate, the conviction of the community contains parts that are in tension with one another, maj ority and minorities having fundamentally op­ posed positions. The judge, qua impartial occupant of her/his off1ce, cannot do other than oblige the majority of the community to leave space for the minority's convictions to figure in the picture of the community's social morality that emerges. It is not a matter of achieving a just outcome, but of functioning impartially in her/his role. 1 5 Indeed, s/he may have deep convictions of justice that would otherwise 14. For a more extensive version of this argument, extracts of which are given here, see Leader (1990:115-34). See also Fiss (1979:13) and Fuller (1978:364). 15. Dworkin has argued, in a piece that took Bowers as its starting point, that minorities have a moral right to contribute to the character of the moral environ-

262

Impartiality, Bias and the]udiciary incline her/him not to do this, since s/he may believe with Profes­ sor Bork that the majority has a right to avoid assault on its sense of the decent and sacred; but this conviction must cede to her/his obligation, as a judge, to hold to the particular distribution of political power within the community that preserves freedom for the minority to contribute to the character of the sexual morality of the community. To do otherwise is to allow a morality of a sub-group, the majority, to substitute itself for that of the larger entity. If the judge passes to that majority the power to speak for the community, s/he abdicates her/his obligation to defer to that community's morality in the process. For her/his obligation to defer to the com­ munity can only be discharged if s/he keeps intact a sense of the community to which s/he is deferring: treating it as this whole the parts of which are in tension with one another. An accurate render­ ing of what the community wants as a whole for its sexual morality cannot escape being portrayed as a balance of different commit­ ments. To expunge one of those commitments in favour of the others in the name of preserving the community's morality is to allow a special interest to masquerade as the general interest. An opening for ideology occurs. If a judge is charged with the duty of accurately assessing what the moral commitments are within the community taken as a whole, then slhe must attend to the difference between occasions on which people demand to be tolerated by the majority in order to indulge themselves in an amusing and harmless pastime, and those who see their activity as an integral part of what makes their lives valuable. There is a case for toleration under both heads, but differently framed. The one that interests us here is the latter. Thus, it is clear in the cases of Dudgeon and Bowers that the intimate relationship between homosexuals formed part of what the plain­ tiffs found to be morally important as part of their own personal development. As the dissent in the Supreme Court put it: Only the most willful blindness could obscure the fact that sexual intimacy is a sensitive, key relationship of human existence . . . the fact ment; see 'Liberal Community', 77 Calif. Law Rev. 479. The argument here is not concerned to argue for a moral right to be accorded to minorities as a matter of justice, but rather on the special obligations to minorities that the role of the judge carries.

263

Sheldon Leader that individuals define themselves in a significant way through their intimate sexual relationships with others suggests, in a Nation as diverse as ours, that there may be many 'right' ways of conducting those relationships. 1 6

If the morality of society as a whole is made up of this composite, then how can an impa rtial court pass to the majority of society the definitive work of accurately describing that morality, as the Court did in Bowers and the dissent did in Dudgeon? Given that the majority dismisses that portion of the community's morality that stands behind homosexual relationships as not deserving of a place in anyone's moral make up, how can the court properly rely on the majority to provide a more accurate account than it can of the place those values should occupy in the values of society as a whole? The answer is that it cannot. If it nevertheless tries to pass on this task of accurate description, saying that the majority is better situated than is the judge to say what counts as public morality, then society's morality, a legitimate object ofjudicial deference, wrongly collap­ ses into the majority's morality, from which it is quite distinct. If follows that the only legitimate way in which one decides what is and is not to count as part of the morality of the community is for the judge to assign appropriate scope and weight to moral commit­ ments of minority and majority. It is this that links respect for her/his function to respect for - a demand for - the right to toleration. It also leads her/him to rej ect passivism. For this mix­ ture of moralities can be impartially fIxed as the morality of the community only if the judge carves out an appropriate place for each part of the mixture (Leader 1990: 1 29) . The community does, it is further submitted, have a right to enforce its morality against recalcitrant individuals. But it may do this only once it is dear that the whole is uniform enough on the point at issue, and not that the sexual morality of one part of the community is doing proxy for the whole. If, for example, the state intervenes in private family life to protect children from being encouraged into prostitution, this is a plausible way of enforcing a community's moral commitments, and it is difficult to argue that we have along the way j ettisoned any moral commitments of a dissident minority. Those who encourage their children into pros16. Bowers

264

v.

Hardwick, 106 S. Ct. 2814 at 2851 (1986).

Impartiality, Bias and the Judiciary titution do not usually do so out of a view that this furthers their view of appropriate sexual morality: that the practice has the sort of value that will contribute meaning to their childrens' lives. Worse. they are encouraging their children to do something that may ultimately prevent them later from leading lives they think are morally worthwhile. By permitting intrusion into the family home to allow the removal of children in such circumstances, the judge gives effect to moral commitments in the community that all point in one direction on this part of the issue of child welfare. The same cannot be said about invasions of privacy so as to prevent the sort of activity in Dudgeon or Bowers. There is a final issue of fairness that is central here. The strategy followed in Bowers, as an attempt at impartial constitutional litiga­ tion, has instead produced a biased solution, since it makes the majority of a community judge in its own cause. The reason is that the point of both the Convention and the Constitution is to test legislation against their standards. If we presume (unless and until a repeal shows otherwise) that the legislation being tested has the backing of the majority, then if that majority is also entitled to tell the judge deferring to it what the scope of a constitutional right should be, they formulate the test by which their own legislation is to be tried. They have been made both constitutional defendant and constitutional judge. 17 We would thereby stand constitutional principles on their head: an interpretation of a constitution is meant to function as a potential limit on a piece of legislation and on those who support it; here those who support the legislation function as limits on available interpretations of the constitution. When you enable the people both to legislate and to fix the boundaries of the constitution, which is meant to test that legislation, they will usually think that the two fit together quite comfortably. It would be surprising were it otherwise (Leader 1990: 1 24) . It follows, on this approach, that the solution advanced in Dudgeon v. U.K. was superior to that in Bowers v. Hardwick. The 17. Of course, the legislation may no longer be supported by public opinion, and if so then one can try to have it repealed. That is a different case. I want here to deal with the harder one, where we assume that the legislation is backed by popular opinion but nevertheless faces constitutional challenge. Note also that even if the majority in a constitutional referendum was required to be a much larger one than that backing MP's voting for a particular bit of legislation, this doesn't change the fact that the bulk of both majorities would consist of the same people.

265

Sheldon Leader issue all along can be treated as a structural one about the distribu­ tion of power and authority between an impartial court and the community. No convictions about just outcomes enter into the way in which that distribution is constructed. Having barred consideration ofjust outcomes so far, where does this leave us when we come to look at the body of past case law? How are we to decide which of several rival solutions fits best with precedent in a case such as Bowers? This question has also strongly divided critics, some saying that a decision such as that of the majority in the case is simply a refusal to respect the Court's own precedents, which implicitly support a general right to privacy available for extension, while others say that a decision such as this gives those precedents no greater weight than they deserve, since the rights they establish fall short of fixing such a comprehensive and extendable general right. Notice that the issue is not whether one takes account of these past cases per se, but what significance, at the end of the day, one accords to them. It is at this point that one must come up with a reason for interpreting that case law in a way that is not vulnerable to the claim that the importance of those precedents has been arbitrarily heightened so as to serve the political convictions of the interpreter. The opponent simply replies in kind - by taking account of that case law but reducing its significance in a way that suits better her/his different preferred outcome. As we have seen, it is in these terms that the majority in Bowers proceeded, not over­ ruling past case law, and indeed acknowledging that it established a right to privacy, but saying with Justice White that 'the right to privacy . . . [does] not reach so far'. 18 As one defender of this approach argues, 'it does seem harsh to berate a judge for not extending a precedent of dubious relevance in order to reach a result he regards as unconstitutional' (Rees 1985:38) . It is here that we come back to the contrast between neutrality and impartiality discussed at the outset. There is no refuge here in a body of precedent that stands neutrally between opposing points of view. Either one chooses an interpretation that shows those de­ cisions as having established a right of privacy robust enough to cover the fresh set of facts, or one does not; there is no third way. However, there is an impartial way of exercising this non-neutral 18. Bowers

266

v.

Hardwick, 106 S. Ct. 2841 at 2844 (1986).

Impartiality, Bias and the Judiciary function, providing a choice among available interpretations of the precedents. This is via principles that limit themselves to looking at the legitimate powers and function of a judge. On the basis of the earlier argument advanced about those principles, a judge should choose that reading of precedent which allows the right to privacy to reach and protect the intimate relationships considered in our two cases. The judge's political convictions, which help to identify this sort of support from the past, are properly limited to matters of fairness if slhe is to be impartial. Ironically, it is those such as Professor Bork who come closest to embracing this ideal when they aim to draw a sharp line between legal reasoning based on good results as opposed to legitimate process (Bork 1990:261fi). But as we have seen, the place Bork assigns to majority rule as a constraint on the judge robs his theory of its ambition to function impartially. Indeed, it is worse than that for Bork, since we can also see that he favours a particular sort of substantive outcome in a case such as Bowers, one that recognises the moral right he accords to maj orities not to have their sense of decency outraged. 19 The strategy advocated here relies on no moral and political right of minorities against majorities advanced as a matter of abstract justice, open to the full run of debate between advocates and enemies of a liberal institution of toleration. That is, it does not call on the judge to engage that part of herlhis political convictions about the nature and appropriate place of individual liberty and social morality, which normally underlies a full theory of toleration and its limits. Instead, it aims at a way of filtering out some theories on these matters and allowing others by arguing for a moral and political right of minorities to toleration that flows from the judicial office: a right that ajudge, thinking about the proper distribution of power between herselflhimself and the community within which slhe is adjudicating, must accept even if apart fro m her/his role slhe would prefer to see an outcome in which no such right was accorded. S/he cannot be neutral on the question of the scope of majority rule and minority rights to toleration: slhe must take a view on their proper balance, but s/he can arrive at that balance impartially.

19. For other inconsistencies in Bork's overall position, see Sagar (1 990:23ff).

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Sheldon Leader Conclusion

It is fair to ask, of course, how far this alternative approach can extend over the range of issues in publi c and private law. That would take us beyond the confmes of a single essay, and beyond the objectives of this one. However, we should have in hand enough to stand back and look at Professor Dworkin's strategy. It is an important strategy not least because it responds to a particular sort of challenge. This is to show us how the law can serve as a check on a judge's political convictions without reifying the legal system meant to serve as that sort of constraint, so thinking of it as some system of rules and principles that possess natural qualities limiting the judge: natural qualities that diligent inspection will uncover. That route obscures the fact that all along we are dealing with a human artifact and with political choices that participants implicitly or explicitly make all the time. Dworkin's theory warns us against this while taking on directly the task of reconciling two apparently irreconcilable ideas: that j udges cannot avoid relying on their own political convictions in reaching decisions on questions of law, and that at certain crucial points they are not entitled to do so. The difficulty facing the reconciliation, I have argued, arises from the invitation to the judge to reach across the full domain of her/his political theory so as to flOd a balance between each el­ ement. Instead, we should understand some of the elements of a judge's political theory as fundamentally discontinuous with others. When the elements can be so held apart, then a theory informing the best political structure and method of adjudication can serve as a touchstone for the judge who is invited to entertain a variety of competing claims to the best outcome in a case serving goals of social justice. S/he needs such a touchstone if the hold of bias, and the mystifications of ideology, are to be broken.

268

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