IT MAY TAKE a bit of groping for one who is not versed in current jurisprudential battles to find his bearings in this book. But the journey, once oriented, is both refreshing and rewarding.
Ronald Dworkin is professor of jurisprudence at Oxford, and unfortunately jurisprudence is (and perhaps always was) a popularly neglected field. We need it no less for all that. Like political philosophy, of which it is a vital branch, it offers rigorous examination of issues as topical as the recent Meese-Brennan dispute over "original intention" as the sovereign guide for judges interpreting the Constitution.
Law's Empire is Dworkin's framework for the analysis of critical issues in law; and such are the elegance and power of the book that one who has read it may find it hard to return patiently to the stale and shallow categories (e.g., "loose" vs. "strict" construction; "activism" vs. "judicial restraint") in which so much argument about the role of judges is nowadays conducted.
Law's Empire aspires to be both a theory of what law is and a theory of our sense of obligation to it. For Dworkin, interpretation is the key -- which sounds at first glance obvious enough. In fact, there are influential schools of thought that would assimilate law to semantic word-play (legal propositions as mere predictions of behavior); or would, in the fashion of the much-written-about "critical legal studies," explain law in terms of a glib and puerile sociology. Either way, law is denied dignity and moral seriousness.
Dworkin's view, which he calls "law as integrity," would rescue law from semantic or sociological trivialization. But it would do more. It would also rescue law from two popular but fallacious conceptions that appear to take it more seriously -- conventionalism and pragmatism.
The conventionalist says that the law is the law because it's the law -- its sanction lies in tradition and custom and the fact of its having been canonically laid down by recognized authority. The pragmatist, on the other side, sees law as a useful and evolving code, distinguished by its plasticity, so that the interpreter of the moment may feel free to render it as useful as it can be by his lights, or those of contemporary society.
Having explored the strengths of both views, Dworkin ultimately discards them for his alternative, "law as integrity."
LAW, Dworkin says, is best seen as part of a continuing "story" or narrative, extending into both past and future and, in another dimension, laterally connecting society's rulebook with the deepest and worthiest values of a "community of principle." (If the reader is a bit reminded of classical Burkean conservatism, Dworkin presumably would not object.)
What conscientious lawgivers do, at least in the Anglo-American system, is interpretive. In Dworkin's felicitous metaphor, interpretation of law resembles the collective writing of a "chain novel" by many hands, through time. Legislators and judges, especially judges, are challenged to carry the continuing story forward in a plausible and internally consistent manner, as well as in a manner most congruent with the best community values.
Consider, as Dworkin does by way of illustration, Charles Dickens' Christmas Carol. Suppose you were given the early pages and challenged to complete the tale. You would first have to decide whether what is already told of Ebenezer Scrooge's character suggests that the story is about original sin, on the one hand, or the corrupting influence of a harsh industrial system on the other. Either might be a plausible reading, given what you know. In any event, carrying the story forward would be a labor of serious interpretation, calling for many skills and much lore. That is precisely what judges do under the law as integrity, Dworkin says: They carry the story on, as responsibly and plausibly, as consistently with honored community principles, as they can.
Obviously, then, both history and current policy demands have something to do with legal interpretation; but neither can overwhelm it. Law as integrity is not free, as the pragmatist would claim he is, to disregard history and precedent and what the "framers" had to say; nor, however, is it paralyzed by the conventionalist's worship of a "canonical moment" when the law was fixed and frozen forever. It rejects both the "historicism" of the conventionalist and the relativism of the pragmatist. It is a third way, the way of integrity or wholeness.
In Dworkin's own words, the law as integrity "begins in the present and pursues the past only so far as and in the way that its contemporary focus dictates. It does not aim to recapture . . . the ideals or practical purpose of the politicians who first created it. It aims rather to justify what they did . . . in an overall story worth telling now . . . sufficiently attractive to provide an honorable future. Law as integrity deplores the mechanism of the older 'law is law' view as well as the cynicism of the newer 'realism.' It sees both views as rooted in the same false dichotomy of finding and inventing law."
Law as integrity does not claim that there are right and wrong answers, substantively speaking, to every judicial dilemma. It does say that there is a way attentive to wholeness, as distinguished from partiality, of coaxing from law the best available story about our aspirations to justice, fair play and due process.
Dworkin's case seems to me persuasive, not only at the level of "is" but at the level of "ought." It fits what competent judges do; it tells us what good judges ought to do. The book's only defect is a defect of virtue: Dworkin's scrupulous willingness to anticipate and deflect even the pettiest quibbles sometimes leads him into a wilderness of capillaries. But when his eye is on the arteries, which is most of the time, he is magisterial. Law's Empire isn't easy reading, but its clarifying powers are such that grasping its argument will save you time and breath in the long run.