Law’s Empire by Ronald Dworkin (Book Review)

  • Debanjali Singha Roy
  • July 31, 2020

Content :

Law’s Empire is a book written by legal philosopher Ronald Dworkin. The book was published by Belknap press in 1986 at USA. The volume consists of 470 pages and is written in English language. Professor Dworkin was an American philosopher, jurist, and scholar of United States constitutional law. At the time of his death, he was professor of Law and Philosophy at New York University and professor of jurisprudence at University College London. Professor Dworkin had taught previously at Yale Law School and the University of Oxford, where he was the professor of jurisprudence, successor to renowned philosopher H. L. A. Hart. As influential contributor to both philosophy of law and political philosophy, Prof. Dworkin was awarded Holberg International Memorial Prize in the Humanities for "his pioneering scholarly work" of "worldwide impact in 2007. The theory of law as integrity was presented in his book titled Law\'s Empire, in which judges interpret the law in terms of consistent moral principles, especially justice and fairness, is among the most influential contemporary theories about the nature of law. Prof. Dworkin recommended a "moral reading" of the United States Constitution, and an interpretivist approach to law and morality.

In this book the author continues his criticism of the philosophy of legal positivism as promoted by H.L.A. Hart during the middle to late 20thcentury. This book particularly introduces professor Dworkin\'s Judge Hercules as an idealized version of a jurist with extraordinary legal skills who is able to answer various principal schools of legal interpretation and legal hermeneutics prominent throughout the 20thcentury. Judge Hercules who was challenged by Judge Hermes, another jurist who is suffering from an affinity to respecting historical legal meaning arguments which don’t affect Judge Hercules within the same manner. Judge Hermes theory of legal interpretation is found by Dworkin in the end to be less important to the approach of Judge Hercules.In the20th Centurythe legal philosophy has been characterized by the confrontation of legal positivism with natural law theory as being among the most prominent legal theories seen in the century. One major supporter of the Anglo-American version of legal positivism was H.L.A. Hart, a professor at Oxford University, who was a teacher of Dworkin\'s and with whom eventually Dworkin would come to strongly disagree. To challenge the prevailing schools of legal interpretation and philosophy in the late 20th century professor Dworkin invented the personage of Judge Hercules to represent a version of legal philosophy which he saw as effectively answering many of the shortcomings he had come to identify with professor Hart and other legal schools prominent in his time.

Prof. Dworkin\'s approach in his book is to present his argument in ten chapters with one summary chapter added at the end of the book titled, "Law Beyond Law". The book is original in its format which is  compared to conventional approaches to academic studies in the law by introducing the personage of Judge Hercules early in the text to answer many of the legal theories which Dworkin wishes to discuss as to their being insufficient to meet the requirements of late 20th century jurisprudence. In authors perspective, the prevailing climate of legal theory at the end of the 20th century was understood by him as being represented by the deficiencies of many competing and opposed legal theories being presented by the legal academy. The ten chapters of this book build logical argument sequentially and in growing complexity of exposition where each chapter is dependent upon the logical demonstrations made in previous chapters which establish the rationale and comprehension at work in the mind of the legal personage represented by Judge Hercules.

In the first chapter of his book which is named as ‘What is law?’ professor Dworkin states that there are three types of law with which he is primarily concerned. These three areas of law are outlined as (a) Conventionalism, (b) Pragmatism, and (c) Law as integrity. Professor Dworkin shall make a primary point of defending law as integrity throughout the subsequent chapters of his text. In the second chapter of his book named as ‘Interpretive concepts’ states that his principle of the \'semantic sting\' of the semantic philosophy of law. He develops and distinguishes between two forms of skepticism to present his arguments differentiating between "internal skepticism" and "external skepticism", for use in subsequent chapters. In third chapter of his book named as ‘Jurisprudence revisited’ states that the concept of law is the theory of what forms the ground of law. The ground of law is the basis on which the suppositions for the working and application of law are based and form an unavoidable basis for subsequent discussion of differing concepts of law. The phrase \'concept of law\' was used by Hart as the title for an approach to law strongly oriented for reading of positive law to which Dworkin would take exception as to its insufficiency for dealing with issues of jurisprudence encountered throughout the 20th century. In the fourth chapter of his book named as ‘Conventionalism’ professor Dworkin stated his three part, 3-tier assessment of law with his criticism of Conventionalism. He differentiated Conventionalism into two different kinds, which are insufficient, in the end, to the needs of contemporary jurisprudence at the end of the 20th century leading to the start of the 21stcentury. The author ends the chapter asserting the failure of Conventionalism. In the fifth chapter ‘Pragmatism and personification’ the author rejects the pragmatism here as insufficient to the requirement of adjudication requirements and legislative principles which he sees as prevailing at the end of the twentieth century. The author begins to stress that contemporary jurisprudence in his view needs to hold in high esteem the values of justice as integrity, fairness and due process. In the sixth chapter ‘Integrity’ professor Dworkin states that "Justice is a matter of outcomes: a political decision causes injustice, however fair its procedures that produced it, when it rejects people some resource, liberty, or opportunity that the best theories of justice entitle them to have." For him the answerability of jurisprudence to political theory and political obligations is central. Political ideals are presented as operating from a base of moral concerns which do influence what is legislated as law.In the seventh chapter ‘Integrity in law’ states that law as integrity denies the statements of law are either the background looking factual reports of conventionalism or the forward-looking instrumental programs of legal pragmatism. It insists that legal claims are interpretive judgements and therefore combine both backward- and forward-looking elements, they interpret contemporary legal practice seen as an unfolding political narrative.So, law as integrity rejects an unlawful the ancient question whether judges find or invent law, we understand legal reasoning. It suggests only by seeing the sense in which they do both and neither. The last three chapters are ‘The common law’, ‘Statues’ and ‘The Constitution’.In hisbook Professor Dworkin has refined and re-expressed his statement of the law-which is actually a vision for the law. Where his earlier work seemed satisfied to prove there were such creatures as ever-valid principles, and where more recent work focused on the viability of principles in day-to-day law, example that one right answer to hard legal questions like "affirmative action" did exist, Professor Dworkin has taken his boldest step in this book. In his manner, the approach is as incomplete as it is illuminating. In beginning his quest for a radical "new" view of law, author states an obvious underlying tenet. Law is not mechanically self-applying, but instead predominantly relies on interpretation. Of course, once law is seen as primarily an interpretive endeavour, the positivistic attitudes of "strict constructionism" and "mechanical" judicial reasoning (e.g., that judges simply and only should follow stare decisis) must be dismissed. If law is not self-applying, if law requires constructive and substantial interpretation to "live" in the system, then an emphasis on written rules and history-and a .de-emphasis of the judicial function-is misplaced.Once it is admitted that law is based and should be based on constructive interpretation, the next logical query becomes, what if anything should that interpretation be based upon? Perhaps responding to general criticism aimed at such "natural law"\' theories, Dworkin has attempted a summary exposition of the interpretive principles. However, the exposition is not what one would have expected, and perhaps is not particularly helpful. "Integrity" is the guiding juridical light, the goal and underlying attitude of the growth of the law.\' Integrity includes such notions as justice, fairness, and procedural due process.7 By justice is meant a moral social order. By fairness is meant a concern for the plight of the individual. By procedural due process is meant a concern for maximizing equality among society\'s citizens. Integrity encompasses these values, but above all, demands there be consistency to society\'s moral fabric. The judge, in the process of decision, should take an attitude typified foremost by integrity and its above stated values. And that, it turns out, is the heart of this matter. In a manner less clandestine than any of his previous writing (although the style continues to be overly academic and abstruse) Professor Dworkin argues for a moral standpoint, a moral attitude to law. In core, he tells us that the "attitude" of the judge is everything, for it is from this attitude that all decisions manifest. A concern for the result (justice), for the individual (fairness), and most importantly for a self-consistent dynamic framework for society to live (integrity) characterizes the empire of law-which, as such, is if not all-inclusive, then certainly far-reaching. Professor Dworkin, like the fabled flawed knight, Don Quixote, is a moralist. I salute him for that and for making this long a waited admission. However, when all is said and done, I do not believe he has said much more than, be moral in your legal decisions, keep them principled, consistent to the goals of the past, and with an eye to the goals of the future. Further, when specific guidance is required, there is available. Although Dworkin expresses an unproven need for a redistribution of society\'s wealth so as to maximize "equality"\' and also expresses a concern for governmental neutrality regarding matters of belief, we are left with merely an attitude. The problem with a principled moral perspective is teaching it to others. I can’t believe Professor Dworkin will enlist followers because of this book. Law, is not a legacy, certainly not an empire.

Ignoring the view, which was widely held among legal theorists, that judges create law rather than merely interpret it, Professor Dworkin insists that for every hard case there is one right answer: the one that fulfills the obligation of the community to treat its members in a logical and principled manner. Examining cases from common law, statute law, and American constitutional law, author formulates guidelines for finding right answer. The right interpretation, he concludes, should attempt to incorporate the virtues of justice, or moral; fairness, or respect for the expressed will of the majority;and integrity, to principled consistency instead of inconstant. Professor Dworkin assign to other legal theorists a cavalier indifference to precedent; in doing so, he comes perilously close to setting up a straw man. With respect to queries of constitutional law, professor Dworkin tries to chart a middle course between a too-meddlesome judicial activism and the passivism favored by American conservatives. Judges and the author argue, arbitrate justified after they preserve a principle by prevailing laws that violate individual rights;they intrude wrong after they interfere in matters of policy. Unfortunately, professor Dworkin’s sharp theoretical distinction between policy and principle can easily become blurred in real life. Although LAW’S EMPIRE is tough for the average reader to travel through, it is no more harder than it has to be. Specific legal terms, and normal words utilized in a special way, are carefully outlined. The author makes deft use of homely examples and illuminating analogies to clarify his more complex arguments. The informatory statements provide a mine of bibliographical information; the index is also additionally useful. Professor Dworkin’s abstract, tightly reasoned work can attractiveness greatly to students within the fields of legal and political philosophy instead of to the overall reader. The author has provided a nourishing broth for all those who are hungry for intellectually challenging argumentation.