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.1
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 what the law was and what it ought to be, it suggested a greater importance than the positivists contemplated for “Judge and Company.” From the concrete issues Dworkin addressed and the results he advocated, it was clear that the judges he had in mind were the liberal majority on Earl Warren’s Supreme Court, and their company was made up of those lawyers and legal commentators who saw litigation, particularly constitutional litigation, as the most promising avenue of social reform.
To fortify judges and lawyers against both politicians beset by pressures from constituents and bureaucrats armed with cost-benefit studies, Dworkin centered legal and political thought on an idea that Bentham had condemned as “nonsense on stilts,” but that had nevertheless retained much force in common thought and speech—the “old idea of individual human rights.” For Dworkin, rights were valid claims that could both guide judicial decision and restrain the pursuit of the majority interest in politics. Thus conceived, rights breached the Benthamite wall separating law from political morality, and challenged the claim of utility to be the sole criterion of value in politics.
Though Dworkin connected legal with moral and political rights, he did not treat them as identical. He saw the principles of political morality as a kind of “law behind law,” whose “background rights”—for example, the right of equal access to material resources—constituted the just claims of individuals against society generally. These were to be distinguished from “institutional rights,” valid individual claims against particular social institutions. Legal rights were those institutional rights enforceable in the courts—for example, the right of a person meeting statutory eligibility requirements to a specified amount of welfare benefits. For Dworkin, the system of legal rights was thus much more specific than the system of background or moral rights.
Two natural questions about Dworkin’s theory of rights arise from the traditions of legal and political philosophy. The first is a question of hierarchy: When principles of political morality clash with rules of positive law, which determines ultimate legal rights? Viewed ambitiously, political morality might have overriding force, as in the natural law maxim “an unjust law is no law at all.” More modestly, the system of political rights might merely supplement positive law, deciding only those legal issues that statutes and other enactments leave in dispute.
The second question involves the source, and ultimately the scope, of political morality. Natural law theorists claim to base political morality on essential aspects of human nature or on universal moral truths, so that its principles are applicable everywhere and always. Less ambitious theorists argue that the background rights of political morality are historical in character, derived from the practices and ideals of a particular society, and hence applicable only locally, and only as long as those practices and ideals hold within that society.
Dworkin has not always been entirely clear in his answers to these questions about the hierarchical status and scope of the principles of political morality. He has sometimes resisted the choices they seem to pose, while some passages from his work suggest he accepts one or the other of the standard answers. The obscurities in his position may have resulted from the episodic development of his theory in a series of essays, in which he did not always make it clear when he was revising his earlier ideas.2 Now in Law’s Empire Dworkin offers a comprehensive statement of his position, which includes answers to the questions of hierarchy and of scope that, though complex, are no longer ambiguous.
On the question of hierarchy, Dworkin rejects (as he has before) the natural law maxim, “an unjust law is no law at all.” The law of the United States validly but unjustly provided for slavery before 1865, and the law of South Africa validly but unjustly provides for apartheid today. Judges and citizens within those legal systems as well as critics viewing them from outside can without contradiction find those institutions both lawful and unjustly violating of background rights.
This does not undermine Dworkin’s well-known description of rights as “trumps”—claims that override other considerations in cases of conflict. He does not conceive of background rights as competing directly with positive law in the judicial mind; rather they come into play as trumps when they override the majority interest within the process of lawmaking. For example, when harsh measures to suppress crime are supported by an aroused public opinion, a legislator might argue against them, on the ground that they violate suspects’ rights. Such an argument presupposes that rights trump the majority will as a matter of political morality. But if the legislator’s argument proves unpersuasive and the harsh measures are enacted, he is in no way logically committed to denying that they have the force of law. Background rights can override legislative enactments within the law itself, but whether they do so is a question to be answered not by general legal theory, but by interpreting the legal system in question. American law, for example, gives some background rights overriding legal force through their being incorporated in a judicially enforceable constitution. English law gives them no such force.
If Dworkin does not think background rights generally have overriding force, do they then simply work as tie breakers, determining legal outcomes when positive law is unclear? He has sometimes suggested this, sketching a rough scheme of decision for judges under which, in evaluating a legal rationale proposed as decisive in a case, they should first consider how the rationale “fits” with formal legal data—statutes, regulations, precedent judicial decisions—and turn to its political “value” only where two or more conflicting rationales both pass the test of adequate fit.
This two-step formula closely resembles the Benthamite positivist account of adjudication. According to that account, a clear existing rule applicable to a dispute is decisive. But in a case that does not fall under a single existing rule, the judge must fill the resulting legal “gap” by means of an independent value judgment, formulating a new rule in legislative fashion.
In Law’s Empire, Dworkin makes it clear that he rejects all such two-step accounts of adjudication. He argues that the supposed first step in the process—the attempt to apply positive law independent of considerations of political value—never in itself decides even the easiest case, because adjudication is impossible apart from moral and political presupposition. Surprisingly, he here shares common ground with such skeptics about the functions of Judge and Company as the Legal Realists who were centered at Yale and Columbia law schools in the 1930s, and the Critical Legal Studies movement, which has spread from its origins at the Harvard Law School to gain much influence in recent years.
He argues that the account of adjudication given by these skeptics (he calls it “pragmatism”) is decisively superior to the positivist two-step analysis with its easy “legal” and hard “political” cases. He agrees with the skeptics that adjudication is in every case thoroughly political, though, for reasons I will come to later, he does not follow them to their skeptical conclusion, which is that there is therefore no distinction between the “government of laws” and the entirely political “government of men.”
Dworkin views as illusory the positivist conception of the “easy case,” settled mechanically by a formal law that is independent of all contestable political assumptions. He does not deny that at any given time a great many questions of law are clearly settled, so that no competent lawyer would think those questions worth litigating. But what makes these cases easy is not positive law operating apart from political morality; it is rather the temporary coincidence of formal law and shared moral beliefs. The point can be seen most clearly when one examines occasions on which the law changes without formal amendment.
Between 1910 and 1930, for example, any competent lawyer would have said that the constitutionality of Jim Crow laws was well settled under the doctrine of “separate but equal.” Neither the text nor the legislative history of the equal protection clause of the Fourteenth Amendment was seen to condemn segregation, and the leading Supreme Court precedent, Plessy v. Ferguson, clearly endorsed it. A challenge to segregation laws would be an “easy case” for a judge to reject. But by 1950, the constitutional law on the question had become unsettled. A number of important decisions had found actual segregated institutions “unequal” under the prevailing doctrine. Respected legal scholars had reviewed and found “inconclusive” the evidence on the intent of the framers of the Fourteenth Amendment to exempt segregation from their general prohibition of racially discriminatory laws. Entangled with these developments were changes in the moral and political views of influential lawyers on issues of racial justice. Brown v. Board of Education thus was a “hard case.”
Today, under the same equal protection clause, the unconstitutionality of segregation is as well settled as its constitutionality was sixty years ago. The case is an “easy” one again, but the other way. Indeed the Brown decision has become so fixed a part in the American legal structure that many students can hardly believe that the law could ever have been different. But while an apparently solid string of judicial precedents provides the positivistic legal backing for the current settlement, legal history shows that no precedents are immune from being overruled. The solidity of the current law is no firmer than the prevailing agreement, in both political morality and law, that “separate is inherently unequal.”
Easy cases, then, are not easy because formal law makes them so without any need to refer to moral and political background views. What Dworkin does is to translate this central insight of modernist legal skepticism into standard lawyers’ discourse. Convention specifies that judges are bound always and only to interpret existing law in the decision of cases. Dworkin accepts this restriction, but accommodates it to what he sees as the inherently political nature of adjudication.
He does this through his account of interpretation itself. Interpretation for Dworkin is never simply the extraction of a meaning that is “there” to be found in a text. Rather it is always an interactive process in which an interpreter “gives a reading” to the collection of words and sentences that constitute the preinterpreted textual raw material. To do this, the interpreter must make sense of, must give intelligible point to, the textual data. But “giving point” has an essential judgmental component; textual data by themselves cannot dictate a single unique interpretation.
Dworkin’s new stress on this conception of interpretation supplements the role he gave to background rights in the earlier version of his theory. As he now presents it, the intrinsically interpretative nature of the judicial process combines with the central place of rights in legal discourse to overcome the strict Benthamite separation between the law that is and the law that ought to be. Dworkin’s lucid and extended theoretical elaboration and practical illustration of the process of interpretation forms the heart of his book. He draws on the work of such contemporary hermeneutic philosophers as Hans-Georg Gadamer, but goes beyond them in stressing the necessary evaluative element in all interpretation. In shaping the raw data before him, the interpreter must be guided by values.
Dworkin illustrates this by drawing on analogies from other forms of interpretation. In the case of literary, theatrical, or musical works, interpretation is intertwined with aesthetic evaluation; the interpreter seeks a reading or performance that puts the words or notes of the text, script, or score in their best light. Similarly, the legal interpreter aims to shape the data of the positive law so as to give them their strongest value as a matter of political morality. Given this essential evaluative aspect of interpretation, we cannot expect judges who hold different views of political morality to come to the same interpretative conclusions from the same positive legal data, even if they interpret those data with equal skill and in equal good faith.
Thus judges for whom segregation is racism and racism is a basic affront to human dignity will interpret a guarantee of equal protection of the laws as prohibiting the practice. Those who see segregation as a prudent accommodation to natural differences between peoples will find enforced separation consistent with legal equality. A Benthamite jurist would argue that no process of interpretation can settle the segregation case; because the equal protection clause has no neutral plain meaning on which all can agree, a judge must treat it either as a license to legislate a discretionary judicial resolution of the problem or (more likely, given democratic premises) as leaving the issue to be settled by more representative legislative institutions. For Dworkin “interpretation” does not imply that verbal meaning is to be extracted in an uncontroversial way; it provides a middle term, mediating between pure description and pure evaluation.
In the end, then, Dworkin does not resolve the hierarchical relation of political morality to positive law with either of the traditional and simple alternatives. Political morality does not rule over ordinary law and it does not overrule it in court; nor is it a safety net below, waiting to catch and resolve only those cases that fall through the gaps in the system of positive legal rules. Rather political morality and positive legal rules are interwoven at all levels, each bearing together on the decision of every case.
This brings us to the second question: Are the background rights of political morality natural rights, universally applicable, or are they historical rights, based upon and confined locally to the practices and ideals of the society within which they are claimed? The question invokes a controversy that goes back to the ancient Greeks, when philosophers argued with Sophists over whether morality was based in physis or nomos, nature or custom.
Again, Dworkin’s answer is not a simple one, but if we translate the traditional opposition into a continuum between more universal and more local conceptions of political morality, the account he gives in this new book tends toward the local and historical end of the spectrum. In Law’s Empire, Dworkin moves a decisive step further away than he had in his earlier work from the tradition in political philosophy that imagines abstractly conceived individuals designing a society from scratch, guided only by their common human nature and their insight into universal moral truths.
Here Dworkin’s evolution parallels that of John Rawls, whose Theory of Justice he recommended in his earlier work as the best systematic account of the background rights that constitute political morality. Rawls had said that principles of justice were those basic political standards that individuals would agree upon from behind a “veil of ignorance” that deprived them of all knowledge of their contingent personal and social advantages and disadvantages. Though much of the language in his book linked Rawls to the natural law tradition of political philosophy, he has recently repudiated any implication that he meant to give his principles of justice the status of “moral facts” or claim for them “universal truth” as seen from “the point of view of the universe.” Now he describes his theory only as “the most reasonable doctrine for us” given “our history and the traditions embedded in our moral life.”3 If we translate this into Dworkin’s terms, it is by the interpretation of that history and those traditions that the principles of political morality, like the content of law, are to be discerned. The work of these two major contemporary liberal theorists thus remains closely linked.
The conception of political morality that Dworkin derives from current practice and discourse, and recommends for use by contemporary English and American judges, is a pluralistic one. It involves no fewer than four separate and incommensurable categories of value. Briefly, justice requires that the outcomes of all processes of government respect substantive individual rights such as freedom of religion, and it requires as well that the community’s resources should be distributed in a way that treats each citizen as equally entitled to the community’s concern. Fairness concerns the lawmaking process, and requires that political power be distributed democratically so that people will have a roughly equal chance to have their opinions count. Procedural due process concerns the application of law, and requires that people should have reasonable notice of what their legal rights are and access to procedures that give them a reasonable opportunity to enforce those rights. Finally, integrity requires that the law should be principled and internally consistent, so that the community may speak through its law as if with a single voice. These are independent requirements: just results may be reached by unfair procedures; fair procedures may produce unjust results; a relatively coherent body of law may not be as just as a relatively incoherent one.
Of these four basic legal values, justice is the one that most nearly corresponds to standard notions of universal natural law. According to Dworkin, it is a concept of “latent global reach” in that we project our ideas of justice outward from our own communities and use them in criticizing the practices of others. But at the same time Dworkin says that conceptions of justice are “developed as interpretations of practices in which [those holding them] participate.” This seems to imply that communities with different practices will have different conceptions of justice; and Dworkin suggests no Archimedean standpoint outside the practices of any community from which to pass final judgment on competing conceptions. An element of relativism thus remains in Dworkin’s account of justice as “an institution we interpret,” an institution that “has a history.”
The other components of Dworkin’s scheme of values are more clearly relativist in their implications, and more directly tend to bring the political morality consulted by judges into line with the actual practices and opinions of their communities. In particular, the populist concern for fairness—democratic rule—makes concrete public opinion on specific issues a direct component of political morality. Procedural due process by requiring fair notice tends to protect the common expectations people actually have. And the local and communitarian strand in Dworkin’s account of political morality also emerges in his complex and novel account of integrity as a political value.
Integrity requires that, other things being equal, a community in its collective actions should follow a coherent scheme of goals and principles, just as a person whom we credit with the virtue of integrity would do. It should treat like cases alike, applying consistent criteria of similarity. Dworkin argues that collective integrity is linked in an important way to the political value of fraternity or community. For in pursuing integrity, the members of a political society strive to pull themselves together into a collectivity to which they can ascribe “moral agency and responsibility.” Such a collectivity is—and here Dworkin’s language recalls Rousseau or even Hegel—a “special kind of entity distinct from the actual people who are its citizens.”
He takes the point of integrity further, in an interesting argument that he does not fully develop. Liberal theory has traditionally held that the citizen’s obligation to obey the law depends either on some implied mutual promise or on the unfairness of the citizen’s taking the benefits of law and order while rejecting the burdens. Dworkin argues that political obligation derives rather from the citizens’ mutual participation in a community that accepts integrity as a special virtue, so that its political and legal structure is principled and consistent.
When the claims of integrity conflict with the relatively universal claims of justice, they, like the claims of fairness and procedural due process, will tend to incline the requirements of political morality in the direction of the community’s actual practices and shared value judgments. Integrity speaks against compromise, against accepting “half a loaf,” and for that reason reinforces those injustices that are relatively pervasive in society. For example, a community that consistently treated women as naturally dependent upon men, denying them many legal rights and privileges, would promote justice but violate integrity if it relaxed one of those restrictions while retaining all the others whose rationale was the same. This might happen if a reformist group decided to concentrate its limited influence on a single restriction that was rendered for the moment relatively vulnerable by the caprice of public opinion.
Integrity plays a large part in differentiating legal from political or pure practical decision making within Dworkin’s theory—so much so that he calls his theory of adjudication “law as integrity.” Dworkin must preserve some distinction between law and politics to give intelligible content to the celebrated slogan that provides his book with its title—James Harrington’s ideal of “an empire of laws and not of men.” Judge and Company, an elite not directly accountable to the public, could not justifiably have a large role in the government of a democracy if the decisions entrusted to them were made, as legal skeptics say they are, on grounds indistinguishable from those of electorally responsible officials.
On Dworkin’s account, a government of laws is a government subject to the restraint of a judiciary especially committed to guarding the community’s political integrity. In the ordinary political process, integrity serves as only one value in the balance. A legislature can legitimately confer benefits upon some farmers, for example, without treating all farmers in the same situation in the same way. It may do so in the name of the public good, in the service of democracy, on the ground that its time and energy are limited, and that it must deal with public demands as they arise. For the judge, by contrast, the articulate coherence of the law serves as an absolute constraint. A judge must stand ready to justify each decision, not merely by pointing to some value that it advances, but by showing that it fits consistently into the “seamless web” of doctrines justifying existing statutes and precedents.
Dworkin here draws attention to a factor that clearly distinguishes the discourse of law from the discourse of politics, and probably differentiates the actual thought processes of judges from those of legislators or administrators who have broad discretion to act. Further, he gives political point to this special judicial concern for coherence or consistency by linking integrity and the value of community, as has been mentioned earlier. To the extent he makes that link convincing, he challenges those legal skeptics who on the one hand regard community as an important political value, but on the other regard as an irrational fetish the special concern judges and lawyers take to reconcile the cases in order to make the law seem, or more nearly be, seamless.
Dworkin’s account of legal integrity shares important assumptions with current left-wing “critical” jurisprudence, while also differing with it. The members of the Critical Legal Studies movement—to oversimplify their position—treat conventional legal discourse not as empty chatter, as the Legal Realists did, but as an important instrument of ideology, designed to portray the existing social structure as more attractive, and in particular as less riddled by contradiction, than it really is. They might agree with Dworkin that a coherent system of legal principles is a sign of a political collectivity bound together in genuine community. From their radical perspective, however, current doctrine merely pretends to be coherent just as current society pretends to genuine community; by contrast, from Dworkin’s liberal reformist perspective, lawyers, in their efforts to make an already reasonably coherent body of doctrine more coherent, are working at the same time to advance fraternity within a society that is reasonably but imperfectly fraternal.
Dworkin’s great achievement in Law’s Empire is to bring the concept of interpretation to the center of Anglo-American legal theory. He treats interpretation as a pervasive activity that joins the ordinary work of lawyers to the speculations of legal theorists. Interpretation breaks down the rigid separation of description and prescription, is and ought, in welcome defiance of the canons of both legal and scientific positivisim. It does so without attempting to restore the natural law heritage in legal theory, for it bases the morality of law not in claims about human nature or universal ethical truth, but on extrapolation of the concrete beliefs and practices shared by an actual community of lawyers and citizens.
The strength of Dworkin’s conception is most evident in his chapter on statutory interpretation, perhaps the finest treatment of this subject in the legal literature, and only one of the many riches of his book that have been neglected in this review. Most of the commentators on statutory interpretation have treated statutes as acts of communication between legislators and public; they have argued mainly over how much consideration to give to evidence of the circumstances in which the statute was enacted. By contrast, Dworkin argues that the interpretation of a statute should be understood as an attempt to make narrative sense of a series of historical events, including not only the creation of the statute but its subsequent application. He would interpret these events in light of the political principles that best provide a “moral” to the story formed from them.
Dworkin’s notion of law as interpretation justifies a modest but significant role for Judge and Company. The judiciary and its surrounding corps of lawyers and commentators serve not as philosopher-kings, but as interpreters of the community’s traditions and ideals, and thus as critics of those of its practices that are not congruent with a coherent scheme of value for governing its common life. They are experts in integrity, in making society more consistently what it already is. They are not experts in what is ultimately right and wrong, though their conceptions of justice enter into their work as properly as the conceptions of justice of legislators and administrators enter into theirs. Thus Judge and Company were not meant to have the power to make slavery universally enforceable in a society founded on a compromise that established it half slave and half free, as the Supreme Court tried to do in the Dred Scott case. But the judges would also have gone beyond their authority had they tried to abolish slavery before the Civil War as well. By contrast, after the constitutional abolition of slavery and its associated forms, judicial invalidation of official segregation was the fulfillment of what had already been proclaimed, the removal of a stubborn but anachronistic, regionally isolated, and anomalous survival.
Dworkin’s arguments consistently support this modest conception of the judicial role. But he spoils some of the effect of his argument by consistent use, in his book’s title and throughout, of rhetoric that is much more grand. “We live in and by the law,” he writes. “It makes us what we are…. We are subjects of law’s empire, liegemen to its methods and ideals.” He tells us—in the nuclear age—that “no department of state is more important than our courts.” The all-important courts are “the capitals of law’s empire, and judges are its princes.” As in his earlier writings, his model judge is “Hercules,” a hero of “superhuman intellectual power.” Nor do the princely judges rule law’s empire alone; alongside them, formulating “law’s dreams,” are its “seers and prophets,” the legal philosophers.
These purple metaphors have their roots in American tradition. When Tom Paine urged the American colonists toward independence in 1776, he recommended that they substitute for monarchy a charter of fundamental law, a document that they could then parade, crowned, in public, “by which the world should know…that in America THE LAW IS KING.” As a nation we have developed a quasi-religious cult of the law, and particularly of the Constitution. But at the same time we have had a persistent distrust of lawyers—and a judge, as the saying goes, is a lawyer who once knew a politician. The cautious republican Paine warned that after his imagined coronation ceremony “lest any ill use should arise” from the law’s crown it should “be demolished and scattered among the people whose right it is.”
Dworkin himself qualifies the rhetoric of legal empire at the very end of his book. In a passage that recalls Paine’s notion that the crown should be scattered back among the people from whom it came, he writes that the jurisdiction of law’s empire is defined not by “territory or power” but by the sway of an attitude that is “self-reflective” and “protestant,” and that “makes each citizen responsible for imagining what his society’s commitments to principle are, and what these commitments require in new circumstances.” On these issues of legal principle, though judges may have “the last word,” the citizen should recall that “their word is not for that reason the best word.”
That is an appealing passage, but it poses certain questions. How is the metaphoric commonwealth it evokes, the republic with its independent and public-spirited citizenry, to coexist in integrity with that other realm whose spirit animates the imagery of Dworkin’s book—the legal and judicial empire of princes, prophets, and superhuman heroes? And in the self-reflective republic, should the judges really have the last word on all the largest questions of principle? Lincoln said that the Dred Scott decision had to be accepted as a resolution of the particular litigated dispute, but that the doctrine laid down in the case did not bind the nation as a “political rule.”
It is worth taking a long view of who Judge and Company are likely to be—looking not only back to Dred Scott, but also a little way ahead. Those of us New Deal liberals who thought the Warren Court did well by the country are now confronted by a federal judiciary headed by a Rehnquist Court, and increasingly made up of vigorous white males with right-wing views. Most of them have come into office on a platform that attacks the activism of the last generation of liberal judges on the basis of a narrow Benthamite conception of adjudication. But behind this judicially restrained front line awaits a second wave of potential right-wing judicial imperialists, ready to roll back the welfare state in the name of what they believe to be a self-consistent and principled development of the implications of the concept of private property.4
Dworkin, one of our best critics of Benthamism, effectively attacks its current variant, Edwin Meese’s “jurisprudence of original intention.” And he spells out the best account we have of a reasonable middle ground between Benthamite mechanical jurisprudence and the imperial judicial role that his own rhetoric too often suggests. One can only hope that the florid imagery of Law’s Empire will not obscure the balanced and attractive structure of its argument.
March 12, 1987
Taking Rights Seriously (Harvard University Press, 1977). ↩
Most of Dworkin’s essays published since 1977 are collected in A Matter of Principle (Harvard University Press, 1985). These essays anticipate some but by no means all of the new views he expresses in Law’s Empire. ↩
See John Rawls, “Justice as Fairness: Political not Metaphysical,” Philosophy and Public Affairs, Vol. 14, No. 3 (1985), p. 223; “Kantian Constructivism in Moral Theory,” Journal of Philosophy, Vol. LXXVII, No. 9 (1980), pp. 564, 570, 519. ↩
The bible of activist right constitutionalism is Takings by Richard Epstein (Harvard University Press, 1985), a detailed blueprint for the judicial abolition of virtually every aspect of the modern welfare state. Epstein, professor of law at the University of Chicago, is said to be the most sought-after speaker among right-wing law students, and has been prominently mentioned as a potential Reagan Supreme Court nominee. ↩