PRACTICE MADE PERFECT?
| Published date | 01 September 1987 |
| Date | 01 September 1987 |
| DOI | http://doi.org/10.1111/j.1468-2230.1987.tb01731.x |
REVIEW ARTICLE
PRACTICE MADE PERFECT?
LAW’S
EMPIRE
by Ronald Dworkin. [London, Fontana,
1986.
xiii
and 470pp.,
including
Notes
and Index. Paperback
f6.951
ACCORDING
to Dworkin,
Law’s
Empire
presents an extended discussion
of
a thesis which he has “been developing piecemeal, in fits and starts, for
several years: that legal reasoning is an exercise in constructive
interpretation, that our law consists in the best justification
of
our
legal
practices as a whole, that it consists
in
the narrative story that makes
of
these practices
the
best they can be” (p,vii). Sceptics may suppose that
there is little point in reading on.
Law’s
Empire,
they may think, is just
another
of
Dworkin’s yarns about Hercules, the emperor who foolishly
believes that, where the law is unclear, he can cover his naked power with
a cloth spun out
of
principles and right answers. Such a knowingly
sceptical response, however, would be a serious mistake. Notwithstanding
Dworkin’s modest prefatory remarks,
Law’s
Empire
is not only his most
determined attempt to make out the case for Hercules and the Rights
Thesis, it is also his first systematic attempt to present his concept
of
law
and his methodological understanding
of
legal concept-formation.
The discussion in
Law’s
Empire
is
organised around three inter-locking
theses, which we can term the “methodological”, the “conceptual”, and
the “adjudication” theses. Broadly speaking, Chapters
1-3
focus on the
first thesis, Chapters
4-6
on the second, and Chapters
7-11
on the third.
The methodological thesis holds that disputes about the concept
of
law
are not
to
be read as arguments concerning the use of the word “law”, but
as essays in the “constructive interpretation”
of
the practice commonly
referred to as the practice of law. Of course, common employment
of
the
word “law” directs jurists to the relevant practice in the first instance; but
conceptual disputation, Dworkin contends, must not be thought to be
of
a
linguistic nature (the “semantic sting” as he calls the linguistic reading).
Instead, jurists who contest the concept of law must be read as offering
different accounts
of
the best justification of the practice. In these terms,
the best account will be that conception which fits most smoothly with the
empirical features of the practice and which portrays the practice in the
most compelling moral light.
Dworkin short-lists three conceptual stories (i.e. conceptions
of
the
practice
of
law) for this Booker Prize
of
jurisprudence, namely
“conventionalism”, “legal pragmatism”, and “law as integrity.” Briefly,
Dworkin suggests that the stories can each be measured relative to the
following foundational idea:
“Our discussions about law by and large assume,
I
suggest, that the
most abstract and fundamental point
of
legal practice is
to
guide and
constrain the power
of
government in the following way. Law insists
that force not be used
or
withheld, no matter how useful that would
be to ends in view, no matter how beneficial or noble these ends,
except as licensed or required by individual rights and responsibilities
flowing from past political decisions about when collective force is
justified.” (p.93)
662
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