Reading the law

Thomas Nagel

  • Law’s Empire by Ronald Dworkin
    Harvard/Fontana, 470 pp, £16.95, May 1986, ISBN 0 674 51835 7

This important theoretical work appears in a definite political context. In the United States, theories of jurisprudence are politically controversial. The public is vividly aware that the way in which the law is interpreted, especially by Federal courts of appeal and the Supreme Court, has had and will continue to have large consequences for their lives and liberties. Controversy arises not just over specific issues like prayer in the schools, censorship, abortion, reverse discrimination, and the rights of accused criminals, but over the sorts of grounds on which cases involving these issues are to be decided. Much of the name-calling that breaks out anew with every major Court decision or right-wing nomination to the Federal bench has a distinctly philosophical character: liberals accuse conservatives of refusing to recognise individual rights; conservatives accuse liberals of inventing law rather than discovering it.

Growing out of the same legal culture, American philosophical jurisprudence is also enmeshed with political controversy, and at the theoretical level with moral and political philosophy. The most distinguished and original American philosopher of law, Ronald Dworkin, has been Professor of Jurisprudence at Oxford for many years, but his heart, and much of his influence, are to be found in the United States. Though he often uses examples from British law, the large questions that most engage him are those concerning equality, and the rights of individuals before the power of the state, which are especially conspicuous on the American legal scene.

Dworkin is a liberal, in the American sense – one of the most prominent intellectual representatives of that position. He is just the sort of person American conservatives have in mind when they accuse liberals of asking judges to ignore what the law is and to substitute their personal views of what it ought to be – an abuse of power and a circumvention of the democratic process. Conservative judges, it is implied, will not allow their political views to influence their judicial practice, but will sternly uphold what the law plainly says.

This is a familiar sort of humbug: invoking the authority of a higher-order, ostensibly neutral position of principle in support of one’s substantive, partisan convictions. But it is an important and difficult question, about all parties to these jurisprudential debates, what the relation is between their general theories of law and their specific views on controversial cases. Dworkin is identified, for example, with strong liberal positions on the permissibility of reverse discrimination and the impermissibility of suppressing pornography. He is also identified with the position that moral reasoning plays a crucial role in legal interpretation. Those who disagree with him on the substantive issues may be tempted to charge that his theory of adjudication is just an excuse for reading his own moral and political preferences into the law.

One of the many virtues of his new book is that it enables one thoroughly to examine and to dispose of that charge. Law’s Empire is a rich and multi-layered work: it brings out the distinctions among the many strands of Dworkin’s thought about law, politics, and morality, and the ways in which they are and are not independent of one another. Up to now he has written essays, many of them collected in two previous books, Taking Rights Seriously (1977) and A Matter of Principle (1985). But this is the first sustained, full-length treatment of his general theory of law, and the first book he has written from scratch. It is an ambitious book, and it does not disappoint the expectations appropriate to a major work by an important thinker. Dworkin has developed a complex and powerful system of ideas, and they are expounded here with the clarity and elegance to which his readers are by now accustomed.

Judges inevitably exercise great power in any society where important disputes are settled by appeal to the law – all the greater where laws may be struck down by appeal to a written constitution. This is because the law must be applied to actual cases whose range of variation over many dimensions is open-ended, and no significant statute or constitutional provision or earlier decision, however carefully drawn, can say on its face how it should be applied in every possible case that could be brought under it. Often the application will be clear, but sometimes, and often in very important cases, the law must be interpreted to be applied and the correct interpretation will not be obvious. To be a judge it is not enough to be able to read.

Dworkin’s first point is that when judges disagree over the correct decision in a difficult case, they are disagreeing over the correct interpretation of the law – over what the law is. There is not in such cases a plain fact as to what the law is, which anyone with enough information can discover. But that does not mean that there is no law at all, so that judges can make it up. Law, as Dworkin puts it, is an interpretive concept. To decide what the law requires in a given case it is necessary to consider, not only the facts of the case, the ‘plain language’ of the statute, and the examples of its previous application, but also the point of the law and of the larger institutions and practices in which it is embedded. All this is built into the practice of adjudication.

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