Legal Theory Article
The Decline And Fall Of Dworkin's Empire Part One

Author: Dr Robert N Moles

INTRODUCTION

[This article was first published in Reading Dworkin Critically, ed Alan Hunt, Berg New York / Oxford (1992). Page references in the text are to Dworkin’s Law’s Empire except where otherwise stated. Certain minor amendments to style and layout have been made for the purposes of this online publication.]

The discussion of this paper falls broadly into three sections. The first section will focus on the negative and superficial approach which Dworkin takes to the work of other theorists. He utilises criteria for assessing their ideas which, if accepted, makes it hard to understand how they could ever have been taken seriously. In passing, I shall indicate features of those theorists’ positions which make it clear that they were not engaged in the enterprise which Dworkin attributes to them.

The observations here are important to the discussion of the second section, which looks in detail at the exposition of Dworkin's own account of a sensible way to approach legal philosophy. Central to this account is his exposition of the nature of interpretation. When we see that this allows him to impose meaning on the works of others, we should reflect upon the meanings which he chooses to impose upon the works of other legal theorists and ask ourselves why he should want to impose those meanings.

He clearly accepts that his reading of them makes them look quite ridiculous, and we should perhaps pause to ask ourselves what this charade tells us about Dworkin's purposes. Given that the other emphasis in his account of interpretation is that we should make of a work the best it can be, we should be mindful of the difference between the approach to interpretation which Dworkin advocates, and that which he employs.

Whilst Dworkin places great emphasis on the need to appreciate the way in which ideas develop, or fit together (in his discussion of law) he clearly regards this as unnecessary in legal philosophy. The final parts of sections one and two are intended to reflect this problem with Dworkin's account. Why should integrity and fit be so important to an understanding of law, and have so little influence in our understanding of legal theory?

The final section will take up this point and suggest that Dworkin's ideas only appear to be plausible, so long as we do not, paradoxically, try to take them seriously. He stresses the need for integrity and fit, yet it is noticeably lacking in the development of his own ideas. Law's Empire does not (on his account) have to be related to any of Dworkin's other writings. Dworkin's work as a whole does not need to be related to the works of others - classical or modern - as he puts it.

Yet I suggest in this section that useful comparisons may be drawn. There are, for example, methodological similarities between the work of Hart and of Dworkin which lead to a breakdown in our understanding of the development of ideas. I also suggest that a useful contrast may be made between the method which was employed by John Austin, which allows for the systematic development of ideas, and that employed by Dworkin, which leads to a philosophical approach which can only be described as ad-hoc.

Philosophy of rejection

It is clearly Dworkin's objective in Law's Empire, to put forward what he regards as a new approach to our understanding of law. However, before doing so, he feels it will be instructive to reflect for a moment on the shortcomings of other theorists. In this respect, his presentation has similarities with that of Hart in The Concept of Law. Hart felt it necessary, before developing his own discussion of the nature of law, to dismiss the theory which Austin expounded:

"The investigation of the deficiencies of this theory occupies the next three chapters." [Hart 1961 p16]

Hart would then deal later with the shortcomings of natural law theorizing.

Dworkin's treatment of the shortcomings of others is, in fact, far more economical than that of Hart. Instead of taking three chapters to dismiss Austin, Dworkin finds that he can dismiss both Austin and Hart in just over two pages, and Natural Law theories and the Realists in just under two. [pp33-37] The method is remarkably simple - first he claims that:

(a) Philosophers insist that lawyers all follow certain linguistic criteria for judging propositions of law.

(b) They then produce theories to identify these criteria. [p32]

All we have to do now is call such theories “semantic theories” - then go on to show that semantic theories have little to recommend them and the job is done. All the work of theologians, philosophers and lawyers spanning a period of, well, let's say 800 years, can be jettisoned. This modern philosophy fair takes one's breath away.

We should remind ourselves that these few pages in Dworkin contain within them the major discussion in his book of the theories of the Positivists and of the Natural Lawyers. Let us take the opportunity, then, to examine in a little more detail what Dworkin has to say about these theories. Before doing so we should pause for a moment to appreciate the point which Twining made in the Introduction to his book on Llewellyn:

“A common error in contemporary jurisprudence consists in treating all "legal theories" as if they were rival attempts to answer the same question or set of questions...It is an elementary axiom of intellectual history that the first step towards understanding a thinker is to identify the questions which worried or puzzled him.” [Twining 1973 p3]

It will become clear that Dworkin, like Hart before him, has failed to pay attention to this "elementary axiom".

Positivism rejected

Dworkin refers to John Austin, "whose theory I shall shortly describe". [p32] In fact the description of Austin's theory on the following page is so short that we can actually include the whole of it here:

"John Austin, a nineteenth-century English lawyer and lecturer, said that a proposition of law is true within a particular society if it correctly reports the past command of some person or group occupying the position of sovereign in that society. He defined a sovereign as some person or group whose commands are habitually obeyed and who is not in the habit of obeying anyone else ." [p33 emphasis added]

Unfortunately, the research assistant who prepared Dworkin's footnotes for him [pix] was unable to distinguish between John Austin the nineteenth-century legal philosopher, and J.L. Austin the twentieth-century linguistic philosopher. The latter would almost certainly turn in his grave at the thought of being credited with The Province of Jurisprudence Determined and Lectures in Jurisprudence. [p419 note 30]

So limited a statement (two sentences) cannot reasonably be called a "description" of Austin's position, which took him 1100 pages to set out in preliminary form. Even so, there are one or two points which should, in fairness, be made. Austin , we remember, was dealing with an analysis of the various types of law. He did, of course, state as part of that analysis that laws were commands. He did not state that the commands were past, present or future. This would obviously depend on the circumstances of any particular case, and is not a necessary part of the general concept of a law. We may infer that commands are likely to precede the imposition of sanctions, but this is not necessarily the case as Austin made clear.

Indeed, Austin criticised Blackstone for failing to appreciate that there are occasions when a judge will introduce a new principle, which, in regard to the case being decided, is an ex post facto law. [Austin 1885 pp633-4] He also goes on to point out that in relation to the case by which the rule is introduced, a rule of judiciary law is always (strictly speaking) an ex post facto law, but that where it has been well anticipated by the practitioners, it may not have this effect. [Austin 1885 p651]

We know, as well, that Austin attached great importance to this judiciary law:

“Wherever, therefore, much of the law consists of judiciary law, the statute law is not of itself complete, but is merely a partial and irregular supplement to that judiciary law which is the mass and bulk of the system .” [Austin 1885 p659 emphasis added]

Austin clearly did not restrict his conception of law to past commands as Dworkin claims.

We should also point out that when Dworkin refers to the sovereign as the person or group who is not in the habit of obeying “anyone else” that this again is not correct. Austin obviously thought it would be a very happy day if the sovereign obeyed God's laws, as revealed or as understood through the principle of utility - or else acted in accordance with positive morality in so far as this did not conflict with God's laws. Austin does point out, again in his criticism of Blackstone, that:

“Now, he may mean that all human laws ought to conform to the Divine laws. If this be his meaning, I assent to it without hesitation.” [Austin 1885 p215]

The question is not whether the sovereign actually obeys “anyone else”, but whether the purported sovereign habitually obeys another “in the position of political superior” - in which case that purported sovereign is not in fact sovereign.

One must accept that the compression of Austin's lectures (which take up more than 1,000 pages) into two sentences, is bound to give a somewhat limited account, but there is no reason why that account should also be inaccurate.

Can Dworkin's claim that philosophers insist that lawyers all follow certain linguistic criteria for judging propositions of law be related to the Positivist position? If we look at Austin's work it is clear that on almost every topic he turns to, he points out the confusing way in which people speak of things. Indeed, he opens his discussion of "Equity" by heading the chapter "Different Meanings Of Equity" and then proceeds to point out:

“If I liked, I could point at books and speeches, by living lawyers of name, wherein the nature of the Equity administered by the Chancellor...is thoroughly misapprehended:-" [Austin 1885 p576]

If Austin is pointing out that lawyers “of name” confuse the nature of Equity, and use the term with different meanings, then he at least cannot be taken to say that “all lawyers” follow the same linguistic criteria to determine what it is. In other words, we could say that Austin was making a normative claim, not a descriptive one. He was concerned with how people ought to use language and accepted that actual usage was confusing and in need of reform. We can say in response to this claim by Dworkin, as we did in response to a similar claim by Hart, that:

“Austin, and Hohfeld after him, were very much concerned with the confusing aspect of usage and unlike Hart who, as we shall see, attempts to construct a theory which incorporates it, they were reformers and were concerned to try and do something about it. It is common enough to use ordinary words in variable senses.  There is peril, however, in this common multiple usage of important words; it very frequently... causes misunderstanding. He [Hohfeld] took these words out of this common usage, even though that usage is confused, overlapping, and inconsistent. His effort was to remove the overlap and inconsistency, forcing a judge or other user to have a clear and definite meaning (thought, concept) and to choose the one word that would convey that exact meaning to another person... One whose own mind is cloudy and confused is certain to convey only cloudy and confused thoughts to others."[Moles 1987 p60 citing Hohfeld 1919 ppvii-viii]

I think that Austin would have approved of that way of putting it. If we also bear in mind Twining's point that not all theorists are answering the same question then it is clear that anything Dworkin has to say in answer to the question "What do most (or all) lawyers think?" will be quite irrelevant to our appreciation of Austin's work.

On other occasions Dworkin uses a rather wider test by referring to the rule for using the word law "that everyone accepts" [p40 emphasis added] and later, he puts it in a most confusing way when he refers to the old debate between law and morals:

“in jurisprudence texts that debate is pictured as a contest between two semantic theories: positivism, which insists that law and morals are made wholly distinct by semantic rules everyone accepts for using "law", and natural law, which insists on the contrary, that they are united by these semantic rules." [p98 emphasis added]

This way of putting it attributes to the Positivists a position which is contradictory and, in the case of Austin, inaccurate. It is contradictory because the claims are that:

1. Positivists insist that there are rules which everyone accepts regarding the distinction between law and morals.

2. Natural Lawyers do not accept such a distinction

3. If we accept that the Positivists are aware of the existence of the Natural Lawyers, then Dworkin is attributing to them a position which could not be accepted on their own terms.

He is attributing to the Positivists a view in which they assert that everyone accepts something, and at the same time he is saying that they acknowledge that a good many people do not accept it. This is not to say, of course, that one should not make such claims regarding them, but that if they are to be made, some evidence should be adduced in support of what may seem on the face of it to be a highly improbable claim.

It is clear that Austin did not make any claims regarding what everyone accepts. When discussing this very issue - that of the relationship between Positivism and Natural Law - Austin made the point that:

“By the confusion of the meaning which I endeavoured to explain, with the meaning which I now have suggested, the grossest contradiction and nonsense is frequently engendered.” [Austin 1885 p573]

Perhaps things have not changed much since then. In any event, these are not the words of someone who believes that there are rules which everyone accepts regarding the proper distinction between natural law and positive law. Austin 's efforts would have been entirely pointless if it was the case that everyone accepted the distinctions which he laboured so hard to clarify. His labours had, and still have, a point because very few people have taken the trouble to think in a sustained and critical way about this issue. He was willing to make great sacrifices because he thought he might be capable of efforts which no one else could, or would, make to clarify these confusions.

Austin did not often speak of what he thought of most men or all men, but as Sarah Austin pointed out in the Preface to the Lectures:

“He [John Austin] demanded from his hearers or readers the full force of their attention; and as he knew how lax and flitting the attention of most men is apt to be, he adopted every expedient for fixing and recalling it.”[Austin 1885 p22]

He clearly did not want to chase after what "all lawyers" think or what "everyone" thinks - and one is surprised that Dworkin should find value in such an unappealing exercise or that he should erroneously suggest that this was the aim of others. Austin did think that there was some value in sustained and careful reflection on the nature of the relationship between law and morals, and in making the attempt to understand that relationship by developing a number of specific and very carefully chosen concepts.

There would then arise the problem of how that understanding was to be communicated to others. Although Austin was not particularly successful in this regard, no one who has any understanding of his experiences could be misled into thinking that he ever hoped to communicate this understanding to more than a small group of people who might have the time, leisure and inclination to think about these things.

We can now see that what Dworkin has been doing is to take Austin's lengthy attempt at conceptual analysis, and to reinterpret it as making certain empirical claims about what people actually think and do. Instead of understanding the lengthy discourse on the nature of command, duty, sanction, sovereignty, subjection and independent political society as an attempt to give articulate expression to a conceptual framework which would help to clarify our understanding if adopted, Dworkin rejects it because it has not already been adopted.

Natural Law rejected

The rejection of natural law theories follows a similar line to that taken in the rejection of positivist theories:

“If we treat these as semantic theories... they have this in common: they argue that lawyers follow criteria that are not entirely factual, but at least to some extent moral, for deciding which propositions of law are true. The most extreme theory of this kind insists that law and justice are identical, so that no unjust proposition of law can be true. This extreme theory is very implausible as a semantic theory because lawyers often speak in a way that contradicts it." [p35 emphasis added]

Dworkin does point out that in chapter three he describes a better way of understanding Natural Law theories [p35] but unfortunately this later description is as bad as the first. Natural Law theories, he says, on this view, are not now semantic theories, but "general interpretations of legal practice." [p98] This means, according to Dworkin, that they were showing how "legal rights are those flowing from past political decisions" adding for good measure, "according to the best interpretation of what that means". [p96]

One only has to stop for a moment to consider this idea to see how implausible it is. Whilst the "most extreme theory" of which Dworkin speaks is not identified, we might reasonably assume that he is perpetuating the same misunderstanding as Hart:

“The clearest, perhaps, because it is the most extreme form of expression of this point of view, is that associated with the Thomist tradition of Natural Law.” [Hart 1961 p152]

When the theory of Aquinas is placed in its proper context, we can see that there is nothing "extreme" about it. We should ask ourselves how Dworkin's interpretation of such a view could be derived from the evidence we have concerning it.

If we take up the suggestion of Twining and stop to think about the sort of question Aquinas was dealing with, we can see that, while teaching in Rome at Santa Sabina, he conceived a plan to instruct beginners in theology, a plan that was to take form as the Summa Theologiae. That Aquinas completed the main body of this "summary of theology" (which takes up some 60 volumes in the recent Blackfriars edition) between 1265-68, and continued working on the third part of the Summa until December 1273. J A Weisheipl points out that:

“In the prologue Thomas states that it belongs to the doctor of Catholic truth to instruct not only advanced students, but also beginners... Therefore his intention in this work is "to present those things that pertain to the Christian religion in a manner befitting the education of beginners".[Weisheipl 1974 p218 emphasis added]

Aquinas says that he will try, "confident of divine help, to present those things pertaining to sacred doctrine briefly and clearly insofar as the matter will permit." [Ibid] Weisheipl takes the view that:

"The three parts of the Summa are ultimately divided into two vast visions of God: the exitus of all things from God, and the reditus of all things, particularly man, to God as to his ultimate goal." [Ibid p219]

We should note the expression here - "two vast visions of GOD" - i.e. no visions (vast or otherwise) of LEGAL PRACTICE. It would have been amazing if this medieval monk had interrupted his extended discourse on God to explain to his theology students the nature of "legal practice" and on how "legal rights flow from past political decisions". To picture him engaging in disputations with his theology students in an attempt to ascertain "what most lawyers think" does not sound quite right either. This is because his natural law was part of his theology - not his sociology of law.

The more sensible interpretation is that what he was actually dealing with was a person's spiritual source and standing in the context of their eternal destiny. As Thomas Gilby points out:

“Unless the natural-law doctrine of the Summa is seen in the light of this origin and this end, it loses its theological force and becomes a matter of philosophy, which may well be defended, but as something less than the meaning set forth in the Summa.” [Gilby 1966 p169]

We can see, then, that Dworkin fails to realise the inapplicability of his "all lawyers" or "everyone" test, because he makes no attempt to understand the question that Aquinas was dealing with. As a result, Dworkin puts forward an interpretation which - if we are to take it as being of a Thomist position - is quite unacceptable.

In this respect, there is some similarity between the approach of Dworkin, and that of Hart. Dworkin constantly suggests that the job of the legal theorist is to capture how "all lawyers" use the word "law". He says, in rejecting Hart's views that, "and then Hart's theory would not, after all, capture how all lawyers use the word 'law'", [p35]  and then he says in connection with natural law that, "this extreme theory is very implausible as a semantic theory because lawyers often speak in a way that contradicts it." [p36]

There is, unfortunately, an ambiguity here. It is not at all clear from this discussion whether the "all lawyers" test is one which Dworkin thinks would be accepted by the theorists of whom he speaks, or is one which he (Dworkin) takes to be valid. I deal with both possibilities here to make it clear that on either view, such a test is quite absurd, and the whole discussion would have been better avoided.

In the event, it appears that Dworkin is using Hart's most valued test to undermine Hart's own position - and in doing so, he confirms what a vacuous test it is - as well as showing us their shared assumptions about the nature of philosophy. Hart placed stress on clarifying our use of language, and felt that this could be achieved by adopting the approach of linguistic philosophy. He used as his test of acceptability what people customarily / usually / normally / characteristically / naturally say or do - without identifying, of course, where these people of whom he speaks may be found. [Hart 1961 pp18,19]

Dworkin, as we have seen, adopts the more demanding test of what "all lawyers", or even "all people" think or say. Of course Dworkin can attribute to "all lawyers" such knowledge as will enable him to reject Hart's views despite the fact that Hart claimed to be putting forward what "most people" usually thought.

Either way, we can see that this is to turn philosophy on its head. Previously, most people believed in a flat earth, witches and demonic possession. We presumably would not want to say that those who questioned these universal beliefs, or even disagreed with them, were in error. In fact, we may accept that frequently, knowledge has advanced because a few people have had the intellectual and moral courage to dissent from widely shared - and deeply held - beliefs. There seems little point in paying professors at prestigious universities large salaries, and giving them research funding, research assistants, computers and access to some of the best literary and scholarly resources in the world if all they are going to do is to tell us "what everyone knows."

However, the very suggestion that "most lawyers" (let alone all lawyers, or even worse, all people) actually have any degree of consensus about the nature of law and legal institutions stretches credulity. The suggestion that the corporate tax lawyer and the country solicitor have a shared conception about the nature of law seems to me to be unlikely - and certainly Dworkin brings forth no evidence in support of his claims. My own guess would be that they would both be too busy to think about it - and that if we were to press them for an opinion, it would be of very little value because they had not had the opportunity to think about it.

This brings us of course to the poverty of Hart's and Dworkin's legal philosophy. If one was genuinely attempting to establish what most (or all) lawyers think, one would not rate very highly assertions in that regard which had not first made some attempt to find out what they do in fact think. Assertions about what lawyers think, which are not based on any evidence, may well tell us something about the assumptions of the person making the assertions - what it will not do is tell us anything further.

What must now be clear is that this approach is merely a circuitous route to enable one to put forward opinions and impressions as if they were something more substantial. We know, of course, that Austin "never had the slightest idea of rendering his subject popular or easy" [Austin 1885 p22] - so he knew from the outset that it would be a pipe-dream to suppose that all lawyers (or indeed many of them) would ever take the time to master an understanding of the inter-relationship between the various concepts as he had done.

Dworkin later makes great play about what it means to "respect the text" and suggests that often it is not that one person respects the text and that the other does not, but that they have conflicting ideas of what "respecting the text" means. [p238] I prefer to endorse the approach advocated by Twining, when he said that we should attempt to understand the problem a particular theorist was trying to deal with. Whatever may be Dworkin's ideas about the role of interpretation we at least know that whatever else the process involves, it requires us to make of a work "the best it can be." However, when we see the extent to which his interpretations, like those of Hart before him, lead him to reject other theorists, then we must seriously doubt whether he has actually made of these works "the best they can be."

Continuing revolutions and the decline of an intellectual community

Dworkin's suggestion is that we should reject the theories of Austin, Hart and others, because we should treat jurisprudence as interpretation rather than linguistic analysis.

“In Chapter 1 we reviewed classical theories or philosophies of law, and I argued that, read in the way they usually are, these theories are unhelpful because paralyzed by the semantic sting. Now we can ask what kind of philosophical theories would be helpful to people…” [p68 emphasis added]

It cannot be accepted that the cursory references to "classical theories" amounted to a review of them, or that the interpretation which Dworkin has put forward is the "usual" interpretation. In most cases, as we have seen, the theorists concerned are not even mentioned by name and their theories, as presented, are virtually unrecognisable. These continuing rejections of earlier theorists lead us to an increasingly superficial understanding of them.

This can be seen not only in the comparison between Hart's and Dworkin's depiction of them, but also in the comparison of Dworkin's earlier accounts with that now on offer. Students may well feel that if all of the previous intellectual giants can be shown to have been in error concerning such basic aspects of their theories, then why should we believe that we are any closer to the truth now. The next Professor of Jurisprudence at Oxford will be bound to "rubbish" Dworkin, and we shall then have to start all over again - again.

Hart and Dworkin have cut us adrift from the past, from any sense of the development of ideas within our discipline, and from appreciating that there are problems of epistemology which lawyers have in common with social and natural scientists. Hart stated this quite explicitly:

“I combine it with the view that the time the student can afford to spend on jurisprudence is likely to be better spent on the close and careful analysis of fundamental legal notions and those lying on the boundary of a legal system than in assimilating what he can of other social disciplines...I think the analysis of legal concepts very important and a much more important educative tool than sociological jurisprudence.”  [Hart 1957 p955]

These comments were made by Hart shortly before he produced his book which he described as an essay in "descriptive sociology" as well as being "analytic philosophy". [Hart 1961 pvii]  How can the rejection of sociological jurisprudence lead to a descriptive sociology of law? If it becomes a sociology which you make up as you go along - as Hart did. No wonder Harris described it as a "sociology fit for Martians". [Harris 1980 p21]  It was, of course, an approach which Dworkin was to develop with some enthusiasm.

This modern trend should be contrasted with the integrative approach of Austin who recommended that a legal education should be developed within an understanding of the philosophy of the human mind, logic, ethics, politics and political economy. If these suggestions had been taken seriously, and professors of jurisprudence had paid serious attention to our developing understanding of the human mind, for example, I doubt very much whether we would still be trying to get by with the sort of fiction which follows.

Dworkin's contribution - a philosophy of speculations

The trip to courtesy

We find that having dismissed other theorists in the first chapter, Dworkin can, in chapter two get on with the next stage, which, as he says, "must be philosophical". [p44]  Immediately he launches into something which is to be quite typical of the approach taken in the rest of the book - imagined examples.

The first thing we must do is to imagine the following history of an invented community:

“Its members follow a set of rules, which they call ‘rules of courtesy,’ on a certain range of social occasions. They say, ‘Courtesy requires that peasants take off their hats to nobility,’ for example, and they urge and accept other propositions of that sort. For a time this practice has the character of taboo: the rules are just there and are neither questioned nor varied. But then, perhaps slowly, all this changes. Everyone develops a complex ‘interpretive’ attitude toward the rules of courtesy.” [p47 emphasis added]

A little later we are told that:

“Once the interpretive attitude takes hold, the institution of courtesy ceases to be mechanical: it is no longer unstudied deference to a runic order. People now try to impose meaning on the institution.” [p47 emphasis added]

It is very difficult to take such imaginings seriously. This may be the easiest way for Dworkin to get to a discussion of his new "philosophical" idea - that law is interpretive - but what he has just said makes very little sense. We are obviously being asked to imagine the existence of a "static community" which subsequently "starts changing". But the community is supposed to have both peasants and nobility. It is supposed to be a community in which people follow rules which are just there. I am afraid that it is impossible for me to imagine a static / mechanical community which has such a degree of social stratification. I cannot accept that such a degree of social differentiation was "just there" - even to assist the development of Dworkin's argument. Bronislaw Malinowski, the anthropologist, insisted that there is no fact without theory which should lead us to question whether any of Dworkin's social facts could be "just there". [Overing 1985 preface]

It seems to me that any society with peasants and nobility is going to have a great many social tensions, which to my mind would indicate that it could not have "mechanical stability" - whatever that is. After all, it was Dworkin himself, who observed in Taking Rights Seriously that those who criticise mechanical jurisprudence:

“are right in ridiculing its practitioners. Their difficulty, however, lies in finding practitioners to ridicule. So far they have had little luck in caging and exhibiting mechanical jurisprudents (all specimens captured - even Blackstone and Joseph Beale - have had to be released after careful reading of their texts).” [Dworkin 1977 p16]

I suppose the critics should have realised that the solution is that what you cannot find you can make up - if we do not know of a mechanistic society (or theorist) then why not just talk about one anyway. This does not help us with the difficulty that the reason why mechanical jurisprudence is unacceptable (as Dworkin admits) is that it is impossible. How does one "imagine" that which is impossible - a body without extension for example?

It is also impossible for me to conceive of a society which has peasants and nobility in which the members of that society have not already understood that their institutions have meaning. I would have to say that the differentiation of people in the way Dworkin suggests must be an important manifestation of meaning. Yet we are asked to imagine this community - with peasants and nobility - with mechanical stability - and “no meaning” - and then to accept that only later does the "complex interpretive attitude" develop (how, or why, is not explained - or even imagined).

Only then does change come about and meaning develop. Dworkin then remarks that "that is a birds-eye view from the perspective of history of how the tradition of courtesy changes over time". [p49]

It is very difficult to know whether Dworkin thinks he is simply explaining the history of his imaginings - in which case we can only sit back, as a psychologist would, and try to sustain our interest. Or is he trying to suggest that this account has wider implications? If the latter, and the wider implications are "philosophical" as Dworkin claims, then we would have to say that the account is so conceptually incoherent as to be unhelpful. If the wider implications are of an historical nature then we would have to conclude that this account is so counter-factual as to be positively unhelpful. As John Dewey pointed out in his foreword to Paul Radin's Primitive Man as Philosopher - published as long ago as 1927:

“The prevalent idea that the customs of the group provide automatic moral standards and rules receives a severe shock... Dr Radin explodes this traditional notion. He makes it clear that objects and nature were conceived dynamically; that change, transition, were primary, and transformation into stability something to be accounted for.” [Radin 1927 ppxvii, xviii emphasis added]

Radin wrote that:

“Among the more important of these assumptions is the notion that there is a dead level of intelligence among primitive peoples, that the individual is completely swamped by and submerged in the group, that thinkers and philosophers as such do not exist - in short, that there is nothing even remotely comparable to an intellectual class among them. These conceptions of primitive mentality the writer regards as wholly unjustified, and it is with the object of contraverting them that the following pages have been written.”[Ibid px]

Even if the idea of societies with blind adherence to customs was prevalent in the 1920s, it is certainly no longer so, and why we should want to resurrect it in legal circles today I cannot understand. Hoebel made a similar point in his discussion of Malinowski's Crime and Custom in Savage Society:

“Malinowski insisted that law exists in primitive societies as distinct from mere custom. Custom is not king. He vigorously asserted that primitive man is not the supine slave of custom... he does not automatically or spontaneously follow the rules of his society." [Hoebel 1954 p178 - see particularly Part 1 "The Automatic Submission to Custom and the Real Problem" in Malinowski 1926 emphasis in original]

I do not mean to suggest, of course, that these comments based on observations of actual societies could contradict anything which Dworkin could imagine. It only indicates that Dworkin's imaginings are counter-factual, are lacking in philosophical or explanatory capacity and are liable to mislead. There is a great deal in this discussion of Dworkin's which reflects Hart's discussion of simple, stable societies and those which have rules of change. Hart said that "the remedy for the static quality of the regime of primary rules consists in the introduction of what we shall call 'rules of change'". [Hart 1961 p93]

We could try and enter into the spirit of the thing by saying that however Dworkin gets there, he is now discussing "interpretive concepts" and as "the analysis of interpretation I construct and defend in this chapter is the foundation of the rest of the book" we really should try and see what this process of interpretation consists of. As this next section is the foundation for the rest of the book, we should perhaps set it down as we discuss it.

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