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Imperial Visions and Mundane Practices

Published online by Cambridge University Press:  16 January 2009

N. E. Simmonds
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In his first book, Taking Rights Seriously, Ronald Dworkin opposed the view that law is a body of publicly ascertainable rules identifiable by some basic master test or rule of recognition. In place of that account he offered a rival vision. Law was portrayed as inherently controversial in content. Discovering the law on this or that subject is not, Dworkin argued, simply a matter of looking up the established rules: it is a matter of constructing a justificatory theory beneath which the established legal rules can be subsumed. In his latest book, Law's Empire, that account of the nature of law has been backed up by an analogous account of the nature of legal theory. A sound theory of law, we are told, is not one that unearths semantic rules governing the use of the word ‘law’. Disputes between rival legal theories do not hinge on the discovery of such deep semantic criteria, any more than disputes about the content of the law in hard cases hinge on the correct application of a rule of recognition. Disputes of both kinds are interpretive disputes: they concern the proper interpretation of legal practices.

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Articles
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The Cambridge Law Journal , Volume 46 , Issue 3 , November 1987 , pp. 465 - 488
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Copyright © Cambridge Law Journal and Contributors 1987

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References

1 Revised edition, (London 1978).

2 (London 1986).

3 Law's Empire, p. 47.

4 Op. cit., p. 66. Dworkin is careful to note that even the preinterpretive stage involves “some kind of interpretation.”

5 Simmonds, , “Practices and Professor Dworkin” (1978) 23 Juridical Review 142Google Scholar; “Practice and Validity” [1979] C.L.J. 361; “Law as a Rational Science” (1980) Archiv Für Rechts und Sozial-Philosophie p. 535, esp. at p. 550 et seq.; “Lawyers, Philosophers and the Ambivalence of Practice” (1984) Rechtstheorie, p. 139. See also Simmonds, , The Decline of Juridical Reason: Doctrine and Theory in the Legal Order, (Manchester 1984)Google Scholar, Ch. 1, 2 and 7.

6 Op. cit., n.1 above.

7 Taking Rights Seriously, pp. 54–58. For discussion of Dworkin's argument, see the first two articles cited in n.5 above.

8 Taking Rights Seriously, pp. 101–108.

9 See generally, Law's Empire, pp. 101–108. Dworkin is also able to use the idea of interpreting practices to cast light on the distinction between concept and conception which played a prominent part in his earlier work. In Taking Rights Seriously, Dworkin employed this distinction while depriving himself of precisely that form of analysis which was most likely to cast light on it. Later he began to grope towards a more enlightening view: see e.g. his “Reply to Critics” in Cohen, Marshall (ed.), Ronald Dworkin and Contemporary Jurisprudence (London 1983) at pp. 250–252Google Scholar.

10 Although, as we shall see, Dworkin also needs to suggest the discontinuity between ordinary disputes and the clear self-consciousness of the “interpretive attitude.”

11 Law's Empire, p. 90.

12 Law's Empire, pp. 55–62.

13 Law's Empire, pp. 62–65. See also Simmonds, , The Decline of Juridical Reason (Manchester 1984) pp. 103–104Google Scholar.

14 Law's Empire, p. 425.

15 Loc. cit.

16 Loc. cit.

17 Law's Empire, p. 111.

18 Law's Empire, pp. 136–138. In assuming that conventions cannot be developed by argument which is, in a sense, internal to the convention, Dworkin seems to have momentarily forgotten his own analysis of practices. Surely he would not deny that the rules of courtesy are conventions: no one could plausibly maintain that people raise their hats in certain circumstances because of shared convictions about the rightness of doing so. People may believe that the convention has an important moral point, but that does not make it any less of a convention: the moral point requires a convention and the precise nature of the convention could have been otherwise (it might have been the case that one bowed one's head, instead of raising one's hat). Yet Dworkin's own analysis shows how conventions such as the rules of courtesy may be changed by interpretive dispute. At this point in his book, Dworkin seems to have reverted to his earlier position (in Taking Rights Seriously) that practices cannot be uncertain.

19 Law's Empire, pp. 138–139.

20 Law's Empire, p. 425. Quoted above p. 472.

21 At one point in his writings Dworkin does advert to the possibility that his theory of interpretation may be involved in a vicious circle. His discussion of the possibility reveals a striking inability to confront the issue squarely without shifting the terms of the argument. The passage occurs in A Matter of Principle (Harvard 1985) at pp. 153–154. Dworkin is discussing his claim (which he calls “the aesthetic hypothesis”) that different theories or traditions of interpretation depend upon differing theories of art. He notes (p. 153) that “a theory of art may depend upon a theory of interpretation as much as vice versa,” but he claims that this does not count as an argument against the aesthetic hypothesis. This is a bold claim. Dworkin's general argument is that a theory of interpretation wholly and necessarily depends upon a theory of art. It follows that, if a theory of art depends upon a theory of interpretation as much as vice versa, the two theories are in a relationship of complete reciprocal dependence, which inevitably involves vicious circularity. Dworkin's way out of this hole consists in the suppression of the issue that he began by squarely recognising. The suppression of the issue of circulatory proceeds through various stages. We are reminded that theories may be “mutually reinforcing”: we are left to remind ourselves that mutual reinforcement is not reciprocal dependence. We are then told (p. 154) that a particular approach to interpretation must depend upon a theory of art, “And this may be true even though the opposite is, to some extent, true as well” (my italics). Once again we must remind ourselves that the issue is one of complete reciprocal dependence (“a theory of art may depend upon a theory of interpretation as much as vice versa” [my italics]) not partial dependence. Finally, Dworkin concludes by asserting that there is no sceptical consequence in the idea that what we take to be a work of art “must comport” with our view of interpretation. Dworkin presumably hopes that, by this stage, the reader has forgotten that we are not talking about one position “comporting” with another, but about two positions in complete dependence on each other. The whole paragraph is a fine example of Dworkin seeing, but rapidly averting his gaze from, the problem of circularity.

(I am indebted to Matthew Kramer both for drawing this passage to my attention, and for the analysis of it set out in this footnote.)

22 Sandel, Michael, Liberalism and the Limits of Justice, (Cambridge 1982)Google Scholar.

23 Williams, Bernard, Problems of the Self, (Cambridge 1973)CrossRefGoogle ScholarChaps. 1 and 2.

24 Law's Empire, p. 67.

25 Loc. cit.

26 Law's Empire, p. 68.

27 See Law's Empire, pp. 69–70, on the question of historical continuity of practices.

28 Law's Empire, p. 90.

29 Law's Empire, pp. 11–15.

30 Law's Empire, pp. 12–13.

31 Law's Empire, p. 14.

32 Law's Empire, p. 105.

33 Law's Empire, p. 47.

34 See n.4 above.

35 Law's Empire, p. 74.

36 Macintyre, Alasdair, After Virtue, (London 1981)Google Scholar; A Short History of Ethics (London 1966).

37 Stein, Peter, Regulae Iuris, (Edinburgh 1966) pp. 16–25Google Scholar.

38 These are the questions I tried to confront in The Decline of Juridical Reason (Manchester 1984).

39 Law's Empire, pp. 199–201.

40 Law's Empire, pp. 201.

41 Loc. cit.

42 See above.

43 An earlier version of this paper was delivered to seminars at the University of Kent and at Keble College, Oxford. I am much indebted to participants in both seminars. I have also benefited from discussions with Barry Gardiner, Hyman Gross and Matthew Kramer, and from the comments of Neil MacCormick on an earlier draft.