The Emperor's New Clothes
| Author | David Schiff,Richard Nobles |
| Date | 01 January 2007 |
| DOI | http://doi.org/10.1111/j.1468-2230.2006.00630.x |
| Published date | 01 January 2007 |
REVIEWARTICLE
The Emperor’s New Clothes
Richard Nobles and David Schi¡
n
Ronald D workin, Justice in Robes, Cambridge, Mass. and London:The Belknap Press
of Harvard University Press, 2006, 308 pp, hb d22.95
INTRODUCTION
In Justice in Robes
1
Ronald Dworkin undertakes a restatement of his approach to
jurisprudence, and provides a series of replies to his critics, ending with a com-
ment on the relationship of his own work to that of John Rawls.This latest book
provides an opportunity to take stock of Dworkin’s theory of law; most particu-
larly, to explore whether it is possible for him both to reject positivist legal the-
ories, which seek to identify a non-normative starting point for the identi¢cation
of legal propositions, and still to establish a coherent and plausible foundation for
the interpretive exercise that he wishes to claim forms a common framework
both foreach law within a legal system, and law as an activity.We intend toshow
that Dworkin’s response to positivist approaches within legal theory removes
much of the foundation forhi s own i nterpretive approach.It becomes, ultimately,
paradoxical, namely it involves ‘an inconsistency among nearly unrevisable prin-
ciples that can be resolved only by recognizing some essential limitation of
thought or language’.
2
However, this does not lead us to conclude that Dworkin
is wrong, and the positivists correct, but to explore the assumption that underlies
their debate, which proceeds on the basis that it is possible to produce a clear phi-
losophical statement of the conditions which allow us to identify a legal proposi-
tion.That Dworkin’s interpretive approach involves paradoxdoes not, in the end,
necessarily make it an inadequate philosophical description of legal operations.
Rather, it points to the limitations of attempting to describe law’soperations phi-
losophically, rather than sociologically.We argue thata ny adequate foundation for
Dworkin’s interpretive approach is not ultimately a philosophical, but a sociolo-
gical one, even though it is available for endless philosophica l digression. It is law’s
operations that provide the grounding for the interpretive exercise which Dwor-
kin describes. But that grounding for interpretation anticipates a sociological
n
Law Department, Queen Mary,University of London. We wi sh to thank Manolis Mel issaris for his
comments on a draft of thisreview article.
1 HereafterJIR.
2 R. A. Koons, Paradoxes of Belief and StrategicRationality (Cambridge: Cambridge University Press,
1992)8. For an explanation of our use of paradox, see n 32 below.
r2007 The Authors.Journal Compilation r2007 The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2007) 70(1)MLR 139^160
investigation, rather than solely a philosophical one.
3
Thus, we believe, Dworkin
is unable to o¡er an adequate philosophical description of the underpinning of
the interpretive activity which he sees functioning throughout legal system s.
What he is able to do, with considerable persuasive force, is to undermine
attempts by his philosophical critics, most particularly legal positivists but also
others he describes as pragmatists,
4
to provide alternative philosophical descrip-
tions of the truth conditions for legal propositions. If the creation of legal propo-
sitions is the result of an activity that can only be described by philosophical
statements that are paradoxical, then neither side in this debate can ever claim
ultimate victory. Each will be able to demonstrate that the other’s position is
incomplete and ultimately incoherent, and claim that their own description is
the better one.
5
To move beyond this protracted and inconclusive debate, one
needs to consider the ability of law, through its operations, to o¡er grounding to
the interpretive practices described by Dworkin.This same exercise will also illu-
minate Dworkin’s ability to demonstrate the incompleteness and incoherence of
legal positivists’attempts to state the conditions thatground interpretive practices
in law.
To assist the reader, here is a brief statement of what follows. Dworkino¡ers a
new statement of his approach to law in termsof interpretive concepts. Suchcon-
cepts require one to describe a socialpractice in relation to its point, orpurpose(s).
At its most concrete level, that of a particular legal proposition, its existence as an
interpretive concept requires one to identity its content in relation to its compat-
ibility with the point or purpose of surrounding legal propositions. But what
prevents this interpretive process det eriorating into a paradox, with surrounding
3 Dworkin admits, in his Introduction, that there are sociological concepts of law, but claims that
unless tightened up by de¢nitions to facilitate particular research, these concepts operate only to
allowdiscussion oflegal systems at the most general level, across societies, and even planets (lawon
Mars).Even these concepts are, he claims, underpinned by philosophy, as nothing can function as a
legal system that does not involve‘rightsand duties’. (JIR, 3^4) In the newlywritten chapter for th is
book, chapter 8,Dworkin utilises his understanding of a sociological concept of law as‘an impre-
cise criterial concept’ to criticise manyof h is critics, and even to show that many long-standing
debates within jurisprudence are misconceived, such as the argument about ‘whether the Nazis
had a legal system’which is ‘bootless for that reason.’ (224)In this review article we use a particular
sociological approach, but one that, we hope, does not lead to a concept of law that su¡ers from
Dworkin’s criticism of sociological concepts of lawas ‘not su⁄cientlyprecise to yield philosophi-
cally interesting ‘‘essential features.’’ . . . its boundaries are too malleable to support an esse ntial-
feature philosophical investigation.’(228).
4 Especially Rorty and Posner, but also Fish and Sunste in.
5 There are points in this book when Dworkin reveals his frustration with whathe sees as the extra-
ordinary commitmentof modern legal positivists to legal positivism: ‘Academic defenders of legal
positivism, like Coleman and Raz, remain. But their arguments, as I have tried to show, have the
arti¢ciality and strain of theories that defenders of a sacred faith construct in the face of embarras-
sing evidence.’ (JIR, 212). His question, in the light of such frustration, is whyare the defenders so
committed to defend. His answer to that question, representing as it does an analysis of contem-
porary jurisprudential writings, is not something that we can dealwith here, but have started to
explore in our book, A Sociology ofJurisprudence (Oxford and Portland Oregon: Hart Publishing,
2006).We believe that the particular historical or evolutionary analysis that Dworkin attempts,
from Jeremy Bentham until the present day (especially at 211^216), could be better explored from
the sociological perspectivethat we adopt in that book (see, as an example,our chapter 3 ‘A Socio-
logical Understanding of Natural Law and Common LawTheory: Constructing the Conditions
for Legal Positivism’).
The Emperor’s New Clothes
14 0 r2007 The Authors.Journal Compilationr20 07 TheModern Law Review Limited.
(2007) 70(1)MLR 139^160
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