Advice for ‘Judge and Company’

Law’s Empire

by Ronald Dworkin
Harvard University Press (Belknap Press), 470 pp., $20.00

Introducing his first book a decade ago, Ronald Dworkin proposed to work out a new liberal theory uniting law with political morality. This was necessary, he argued, because of the inadequacies of what he called “the ruling theory”—the disjointed combination of legal positivism and political-moral utilitarianism formulated by Jeremy Bentham and developed by such successors as John Austin, Oliver Wendell Holmes, and H.L.A. Hart.

Behind the “ruling theory” was the urge to deflate the larger claims of the judiciary and the commentators on the law—the tribe that Bentham called “Judge and Company.” Bentham’s own primary target was Sir William Blackstone, who had described English judges as the “living oracles” of a law that distilled “ancient and long established custom” into “the perfection of reason.” Oxford professor, High Court judge, commentator on the laws on England, Blackstone was, in his eloquent complacency, the prototype for every subsequent bar association orator on the glories of the law.

Bentham began his jurisprudential career with an attack upon Blackstone’s celebrated definition of law as “a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.” In Bentham’s view, this definition deceptively promoted the power of judges and lawyers by confusing the question of what the law is with the question of what it ought to be. These, he argued, were distinct questions, to be answered in practice by separate branches of government and in theory by separate branches of legal science.

For Bentham, the law that is was to be identified by “expository jurisprudence” and applied by judges; its content must be a pure matter of fact, whose determination involved no moral or political value judgments. Accordingly, he defined law as whatever statutes and other official directives had been laid down or “posited” (hence “positivism”) by the supreme power in the state, however unjust or immoral these might be. Once this positive law was identified, “censorial jurisprudence” could then proceed with the separate task of its evaluation, and the legislative branch of government with its reform.

The censorial jurist and the legislator were to judge laws and institutions solely by their contribution to the well-being of those affected by them, freed both from the prejudices of inherited custom and from the superstitious belief in a transcendental higher law. Bentham believed that a legislature chosen by the broadest possible electorate was the institution most likely to produce laws that served the public welfare, and that the legislators so chosen should spell out the law in the form of detailed statutes, which left judges and commentators little discretion in their interpretation and application.

In his book Dworkin attacked this Benthamite fragmentation of legal theory, and proposed that the studies of law and of morals be reunited. His theory was a politically committed one, formulated during the civil rights, antiwar, and antipoverty political movements of the 1960s and early 1970s. Because it rejected any sharp distinction between deciding …

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