Abstract
To classify Dworkin as a republican flies in the face of much conventional labelling, notably the division that wants interpretivists opposing republicans.1 I will say nothing about the division because I believe it misleading, but will treat Dworkin as both interpretivist and republican because, it is my claim, his major work Lawn Empire relies on law’s interpretative nature to provide a powerful statement of the containment thesis. This work not only sets community at the heart of a theory of law, but also uses law as a lever for politics and the self-determination of community. I will take Dworkin up on his suggestions; the interpretative one, that the nature of law can only be understood in the practice of a community; and the republican one, about how the community substantiates itself through arguing legal questions in the interpretative way, and how this thorough involvement in legal argument allows communal self-government through law.
‘We live in and by the law. It makes us what we are. We are subjects of law’s empire, liegemen to its methods and ideals, bound in spirit while we debate what we must therefore do … [Law] is a fraternal attitude, an expression of how we are united in community … That is anyway what the law is for us: for the people we want to be and the community we aim to have.’ (Dworkin)
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Preview
Unable to display preview. Download preview PDF.
Notes
Kahn, 1989, 43 and Feldman, 1992, passim.
There is an ambivalence in LE about where ‘the point of a practice’ is to be sought. Should we assume with Postema (1987) that the point of a practice exists as the shared understanding of participants, or should we take Dworkin up on his word that a practice is ‘an entity distinct from [people]’ (1986, 50) and has little to do with group consciousness? S C Smith (1990, 263) explains this confusion in Dworkin’s account of the internal point of view, the latter carried at both the’ subjective’ level of participants’minds and the’ social’ level of the autonomous discourse. Smith pushes the independence between practice and practicing individuals ‘further than Dworkin ever has,’ by proposing a reading of ‘practice’ in Luhmann’s systems-theoretical terms. An insightful argument this, but one that would disarticulate law’s connection with politics and self-determination in community, a connection that Dworkin vitally needs to uphold.
Dworkin, 1986, 55
ibid., 442
As Postema has resumed it: ‘Law is a social practice. Participants of the social practices act from an understanding of their actions as appropriate to the practice and this understanding is constitutive of the practice.’ (1987, 286). Dworkin says: ‘This book takes up the internal, participant’s point of view; it tries to capture the argumentative nature of our legal practice by joining the practice and struggling with the issues of soundness and truth participants face.’ (1986, 14)
Dworkin, 1986, 211
ibid., 47
ibid., 56
ibid., 58-59
ibid., 65-66
ibid., 75
ibid., 66
On this see Fish’s argument (1982) that if we rightly take ‘fit’ to be interpretative it can no longer provide the testing ground for the competition of justifications, for as ‘best fit’ it is itself absorbed in the justification.
Dworkin, 1986, 115
A ‘bare’ rulebook community would opt for the conventionalist type of law. A conventionalist theory of law would attach the legitimacy of law or political obligation towards the law to the necessity of having publicly ascertainable rules for coordinating behaviour. Note the proximity of the conventionalist’s ‘checkerboard’ legislation with the republicans’description of the legislative outcomes of Ordinary politics’, that also consist of compromises and coalitions in the political marketplace. (See also Hunt, 1991, 39)
Dworkin, 1986, 95
ibid., 219, my emph.
Dan-Cohen puts it this way: ‘that we should be wary of a fable that likens the operation of the judicial system to the composition of a novel. It is quite a strange novel that has as its dramatic punchline the execution of some of its intended readers. And this prospect, while no doubt concentrating the readers’ minds, may put a strain on their interpretive skills that is quite unfamiliar in literary circles.’ (1989, 1676)
The concept of the narrative is, of course, a favourite of the structuralists in the 60s. For an early, structuralist account, see Barthes (1977). I employ it here in the way MacIntyre does in (1981, passim and ps 204ff). Also Benhabib, 1987, 349: ‘At any point in time, we are one whose identity is constituted by a tale. This tale is never complete; the past is always reformulated and renarrated in the light of the present and in anticipation of a future.’
A difference between Ackerman and Dworkin is worth noting here. While for both the judge looking backwards retrieves and articulates the narrative that informs present identity-moulding legal decisions, what Dworkin describes as a task fit for Hercules, for Ackerman describes as a potentially oppressing activity that he attributes to the ‘traditional professional narrative’ (1991, ps 42-4, 62). The task is that of reading past constitutional history as a coherent whole. Such a coherence imposing reading would stemroller over Ackerman’s constitutional moments as disruptions of the narrative and would thus ‘unduly minimize [the community’s] creativity.’ Constitutional moments need to be preserved as breaking points with past history and as initiating future chain novels. Ackerman’s would best be read as a three-chapter chain novel, coherence playing an important part in legal interpretation within but in no case beyond the time-span between two consecutive constitutional moments.
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 1998 Springer Science+Business Media Dordrecht
About this chapter
Cite this chapter
Christodoulidis, E.A. (1998). Dworkin and the Law as Forum of Principle. In: Law and Reflexive Politics. Law and Philosophy Library, vol 35. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-3967-0_5
Download citation
DOI: https://doi.org/10.1007/978-94-011-3967-0_5
Publisher Name: Springer, Dordrecht
Print ISBN: 978-1-4020-0283-0
Online ISBN: 978-94-011-3967-0
eBook Packages: Springer Book Archive