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

The interpretive attitude

Author: Dr Robert N Moles

Dworkin commences his discussion of interpretation by speaking of the different circumstances in which it might arise. The first example he looks at is "conversational" interpretation:

Conversational Interpretation

“People interpret in many different contexts, and we should begin by seeking some sense of how these contexts differ. The most familiar occasion of interpretation - so familiar that we hardly recognize it as such - is conversation. We interpret the sounds or marks another person makes in order to decide what he has said.” [p50]

One wonders at this stage what audience Dworkin has aimed his book at. It is hard for me to appreciate who would be interested in legal theory, yet not appreciate that conversation involves a complex process of interpretation. He then discusses "scientific interpretation".

Scientific Interpretation

“So-called scientific interpretation is another context: we say that a scientist first collects data and then interprets them.” [p50]

It is difficult to know who the "we" refers to - presumably Dworkin and some others. It is hard to accept the claim which Dworkin made a little earlier to the effect that this section of his book was going to be philosophical. One does not need much awareness of philosophy to appreciate that since David Hume, not many people have accepted that we collect data and then interpret them. Karl Popper, Michael Polanyi, Ludwik Fleck, T.S. Kuhn and R.G. Collingwood - to name but a few - have put forward accounts explaining that before we can have data, we must have both theories which the existence of that data presupposes, and questions which those theories in their turn presuppose.

An example of this not being appreciated in a legal context was in the case of Rossminster. Here the Inland Revenue descended on the premises of a firm marketing tax avoidance schemes - they removed lorry loads of documentation from the offices, and took them to a warehouse. Unfortunately they were unable to make any sense of the piles of papers, because they did not know anything about the "theory behind" the tax avoidance schemes of which they were part, and without that, the papers were all quite meaningless. A similar point is appreciated by computer firms who keep their data base in one jurisdiction and the index to it in another - an order by a court to disclose one or the other is of no value. If one selects the jurisdictions properly, an order to disclose both may not be possible.

Having referred to scientific interpretation, Dworkin goes on to speak of his next category.

Artistic Interpretation

“Artistic interpretation is yet another: critics interpret poems and plays and paintings in order to defend some view of the meaning or theme or point. The form of interpretation we are studying - the interpretation of a social practice - is like artistic interpretation in this way: both aim to interpret something created by people as an entity distinct from them, rather than what people say, as in conversational interpretation, or events not created by people, as in scientific interpretation. I shall capitalize on that similarity between artistic interpretation and the interpretation of social practice. I shall call them both forms of "creative" interpretation to distinguish them from conversational and scientific interpretation.” [p50]

At this stage, I find it difficult to accept or follow the point of Dworkin's imaginings and ad-hoc distinctions. He has distinguished a social practice from conversations and scientific activity, although it seems to me that conversations and scientific activity are both forms of social practice. He tells us that we are studying "social practice" although he has not specified what social practice is the object of study - lawyers, courts, legal doctrine, legal philosophy, primitive societies, psychology? He then tells us that he will call the interpretation in art and social practice "creative" to distinguish it from that involved in conversation and science.

I do not understand how one can conceive of the interpretation involved in conversations and science as not being creative, and at this point my credulity in following Dworkin can strain no further, being lost as it is in the welter of confusing and meaningless distinctions. My determination to persevere collapses when I see that on the next page Dworkin goes on to say:

“The phrase ‘scientific interpretation,’ we might say, is only a metaphor, the metaphor of data ‘speaking to’ the scientist in the way one person speaks to another; it pictures the scientist as straining to understand what the data try to tell him. We can dissolve the metaphor and speak accurately, we might think, only by eliminating the idea of purpose from our final description of the scientific process." [p52]

It is funny, of course, to think of data queuing up to speak to us, but it is only funny because it is so far removed from any sensible conception of scientific interpretation that it could only happen in a place like courtesy. But what does it mean to eliminate purpose? To have no regard to the purpose of the scientist, or to eliminate (on the back of this trivial depiction) the views of those who may feel that the physical world in which we exist is a manifestation of God's purpose? However, Dworkin's point in all this is to get to the main point of this section.

Interpretive methodology - imposition of purpose

Dworkin points out that:

“Creative interpretation aims to decipher the author's purposes or intentions in writing a particular novel or maintaining a particular social tradition... creative interpretation is not conversational but constructive.” [p52 emphasis in original]

However, two sentences later he says that:

“But the purposes in play are not (fundamentally) those of some author but of the interpreter. Roughly, constructive interpretation is a matter of imposing purpose on an object or practice in order to make of it the best possible example of the form or genre to which it is taken to belong.” [emphasis added]

What Dworkin is saying is that, in one view, creative interpretation aims to decipher the author's purpose. His preferred solution is that creative interpretation is constructive and constructive interpretation concerns the interpreter's purpose. The author's purpose and the interpreter's purpose are distinct, as Dworkin appreciates, and I should have thought that anyone engaged in the process of interpretation would want to be very careful to ensure that he does not substitute one for the other in the way in which Dworkin will now show us he regards as being entirely legitimate.

We may notice, by the way, that when he spoke of hunting mechanical jurisprudes, Blackstone and Beale had to be released after examining their texts. [see previous reference to Dworkin 1977 p16] Presumably he thought at that stage that their meaning could be ascertained from their texts - now he thinks meaning - the interpreter's meaning - must be imposed on [their] texts.

It is truly surprising that although Dworkin is speaking of the interpretation of social practices, he makes no attempt to demonstrate any awareness of the extensive anthropological literature on the subject, and although the discussion of Gadamer and Habermas indicate a slightly less crude awareness of the problem than the text suggests, this discussion is consigned to the notes at the back of the book. As the anthropologist Raymond Firth pointed out, anthropologists are, of course, well aware of the need to strive towards an associational or contextual theory of meaning [Malinowski] or to seek that "context dependent rationality" [Lukes] whilst aware that "'the assumptions due to the conditioning and personal interest of the investigator must influence his findings” and that “bias should be consciously faced". [Firth 1985]

If one was looking to see whether Dworkin actually could mean that interpretation is the act of imposing the interpreter's purpose on the text, we only have to reflect on his interpretation of Austin and Aquinas to confirm that this is so. At no stage is there the slightest concern to understand the works in the context of the authors' expressed intentions and of the information we have concerning the authors' lives and interests.

Dworkin also speaks of the assignment of a work to a genre without making it at all clear what he means by this. Who is to do the assigning? Obviously Dworkin has assigned the work of Aquinas to the genre of "sociology of law" whereas Aquinas would have preferred it to be viewed as a work of theology. It appears to me that the assignment of a work to a genre must in the initial stages be done only tentatively, and one must strive to be aware of the possibility, whilst reading, that the book could have been assigned to others.

It may be the case that a good work of fiction may work at a number of different levels. It may be just a rattling good story, or it may also be seen to have historical, cultural, psychological insights. Our sensitivity to these may depend on our own knowledge and experience which will enable us to pick up on the cues which will assume much greater significance when seen from a different perspective and enable us to access different layers of meaning.

These different levels or perspectives on interpretation do not mean that some pay attention to the text and others do not - just that we can alter and deepen the significance of our reading, by appreciating the different dimensions within which it may be seen. What we know of the author and of the circumstances prevailing at the time may assist us in developing our awareness of the range of possible meanings.

Dworkin goes on to make the observation that "the constructive account of interpretation will strike many readers as bizarre". [p53]  I can confirm that in my case he is correct, but not for the reason he suggests. He supposes that the reason for this reaction is because we prefer the idea of interpretation being a conversation addressed to an author. This reflects a difficulty in the way in which Dworkin develops his argument - he not only puts his own case forward, but also, what he considers to be the case against it.

This can be an interesting and stimulating way to develop an argument, or indeed one's understanding. It was, of course, the method employed by Aquinas. Unfortunately, whilst in most other things, Dworkin speaks of making them "the best they can be" he does not do this with such counter arguments as he constructs. The best argument against his position is not that others prefer the data to have a conversation with them, but that his view is unstructured, contradictory, at odds with our perception of scholarship and knowledge - and unimaginable.

It should also be said that what we have looked at so far is merely confusing - the bizarre is yet to follow. Dworkin did refer to a more acceptable view of interpretation, but unfortunately he did so only in order to reject it.

In this section we can see Dworkin's specific rejection of a more sensible approach to the nature of interpretation and its substitution with an idea which is bound to lead to the greatest confusion. He says that:

“One solution is very popular... Creative interpretation aims to decipher the authors' purposes or intentions in writing a particular novel or maintaining a particular social tradition, just as we aim in conversation to grasp a friend's intentions in speaking as he does. I shall defend a different solution". [p51 emphasis added]

The reason he appears to go astray at this stage is because of his confusion of two issues. The confusion develops in this way: (the following points are taken from the discussion at p55)

1. Is artistic interpretation inevitably a matter of discovering some author's intentions? [One might perhaps want to answer that the artistic evaluation of something is clearly a separate issue from the determination of what the author intended, but that the latter might well assist the former].

2.Is discovering an author's intentions a factual process independent of the interpreters own values? [One might want to distinguish between the interpreter's conceptual framework which is of course essential to any understanding and the interpreter's values, i.e. the criteria utilised by the interpreter in attributing importance or significance to aspects of those experiences. The former is essential to determining an author's intentions, whereas the latter is not. Dworkin's obfuscation of this issue lies at the very centre of his confusion].

3.Artistic interpretation is not simply a matter of retrieving an author's intention if we understand by that a conscious mental state - not if we mean by that "some particular conscious thought wielding its baton in an author's mind." [I cannot imagine what he means by this. It appears to be a similar point to that in 1 with perhaps a slightly different emphasis].

4.Interpretation in art cannot be then just a question of recovering an author's intention; is there, therefore, so sharp a distinction between discovering an artist's intention and finding value in what he has done?

Now we can see clearly the basic slip - it seems to come in when thoughts start wielding batons and is seen most clearly in this last observation.

INTERPRETATION (evaluation as art) - is not just intention

INTENTION      - must involve evaluation as art.

[This is a non-sequitur]

He then only has to add that the matter of finding INTENTION is also a matter of maximising artistic VALUE - and he is then on the road to his constructive, pie-in-the-sky approach to other people's work - as we shall see shortly.

 The better view is that we should keep those questions separate, because we can then utilise different evidence in attempting to answer each of them - and thus attain a fuller and more sophisticated understanding than Dworkin can manage.

Let me give a practical (and real) illustration. At the present time I have put forward an interpretation of Austin's work which I would claim is sound and in accordance with the author's intention (in Definition and Rule in Legal Theory). Dworkin would find this persuasive evidence perhaps in support of his view that in interpreting the work of another, one has to make of the work "the best it can be". But this is clearly wrong. Both W.L. Morison and Wilfrid Rumble take the view that Austin intended his work to be empirical whereas I claim that he intended it to be conceptual.

During the next few months I shall be reconsidering my view of this matter. I shall reconsider the evidence that Morison and Rumble put forward to support their arguments, and I shall seek out whatever evidence may be available, whether it provides further support for their view or my own. There is the possibility that in some writing of Austin's of which I am unaware - or even in that of which I am aware but have not fully appreciated - I shall find a clearer and more conclusive expression of his views.

If the further evidence should support the view taken by Morison and Rumble, then I shall not have lost anything - rather I shall have improved my understanding of something in which I am interested - the work of John Austin. In that event, it will then be clearer to me that my own views and his diverge rather more than I previously thought; but this will not oblige me to change my position on what I regard as being the best way to view legal theory. What it will do is give me further impetus to try and understand why he held those erroneous views. Was it because the nature of scientific understanding had changed between then and now in a way in which I had not previously fully appreciated?

However, if I want to know what is the best way to approach legal philosophy, then my arguments and line of enquiry would be quite different. I could take up the Austinian theme and, acknowledging that this is not what Austin would have done, turn it into something else. But why on earth would I want to call that an interpretation of Austin's ideas? To call it an adaptation of his views would do quite adequately, and this makes clearer where the responsibility lies. Yes, the questions "What did it mean to him then?" and "What can I do with it now" are quite different, and the answer to one is not dependent on the answer to the other. Dworkin has these issues hopelessly confused.

When we remember the interpretations to which Dworkin is led, and the fact that he rejects so much of our intellectual history, we may be tempted to condemn this new approach of his out of hand. We might feel, too, a sense of sadness at his seeing so little of value in the work and labours to which others had dedicated much of their lives.

The specific methodological means for the imposition of purpose is arrived at by a discussion of Stanley Cavell's "imagined-conversation test":

“He [Cavell] notices that a character in Fellini's film La Strada can be seen as a reference to the Philomel legend, and he asks what we need to know about Fellini in order to say that the reference was intentional (or, what is different, not unintentional). He imagines a conversation with Fellini in which the filmmaker says that although he has never heard of the story before, it captures the feeling he had about his character while filming, that is, that he now accepts it as part of the film he made. Cavell says that he is inclined in these circumstances to treat the reference as intended.” [p56 emphasis added]

Dworkin says that he regards this as an important analysis for us, because it suggests a conception of intention quite different from the crude "conscious mental state" view. [p57] This is quite surprising because this more sophisticated view leads us into a whole series of confusions. In the first place the conversation is "imagined"; what we know for certain is that it did not take place - yet it is supposed to illuminate our understanding of what did take place - the making of a film in this case. Dworkin obviously approves of the use of "imagined conversations" and even goes so far as to say that:

“We can, if we wish, use Cavell's account to construct a new description of what the citizens of my imaginary community of courtesy are doing in interpreting their social practice, an account that might have seemed preposterous before this discussion.” [p58]

The "conversation" states that the film maker had never heard of the story before - in other words it could not have influenced him one way or the other at the time of making the film. We now have to imagine that Fellini, some time after the event, came across the legend and expressed the view that in some way it captured the feeling he was trying to express in his film, "in other words he now accepts it as part of the film he made." But this, of course, is quite mistaken - he cannot accept it as part of the film he made because he is just taken to have stated explicitly that it was not - he did not at that stage know anything about it. To say, after the event, that another view or experience that one comes across is compatible with an earlier view or experience is all well and good, but no matter how much one wants to rewrite history, one cannot say that the latter was part of the former.

Dworkin points out that Cavell is then inclined to treat the reference (of which the person is acknowledged to have been unaware) as having been intended by him. If all this were preparatory to a telephone call to Fellini to discuss the matter with him then perhaps there would be no great harm in such musings. However, Dworkin then goes on to observe that:

“the imagined-conversation test can be applied to authors long dead, as it must be if it is to be of general critical use.” [p57 emphasis added]

I am not unaware that the imaginary conversation with the dead is a well recognised and interesting literary genre - men as diverse as Lucian, Dante and Walter Savage Landor have used it with effect. Dworkin, I would claim, misuses it by suggesting that it provides "evidence" which can be utilised in place of that other evidence (books and manuscripts) to which we should otherwise resort. He goes on to make an observation, in this respect, which is particularly odd for a lawyer:

“This brings the interpreter's sense of artistic value into his reconstruction of the artist's intention in at least an evidential way, for the interpreter's judgment of what an author would have accepted will be guided by his sense of what the author should have accepted, that is, his sense of which readings would make the work better and which would make it worse.” [p57 emphasis added]

The whole idea of some imagined conversation with an author long dead as providing some evidence of what that author intended may be the way in which scholarship is pursued at Oxford, but it does not suggest that the priceless collection of rare books and manuscripts in the Bodleian library is being put to good use.

The idea that my views of what an author should have accepted could be used as the basis for making assertions about what he did accept is plainly to confuse the different issues we referred to earlier - that of interpretation in the light of our historical knowledge of the author and his concerns with that of criticism and evaluation. Dworkin accepts this openly and without embarrassment.

For a person who adopts this cavalier approach to interpretation and finds it difficult to distinguish it from evaluation, it is very easy to slip from a reconstruction of what a person said, based on a desire to improve upon it, to a reconstruction based on the desire to have an opponent who is easily conquered (a straw man). We know that Hart's reconstructed Austin bore very little resemblance to the real thing, and that the Hartian version was not of course a stronger version as he claimed - nor was it difficult to dismiss. So too with Dworkin's treatment of other theorists. 

If I wish seriously to understand the work of Aquinas or Austin, then I must leave my imagined conversations with them and read what they actually wrote. In both cases there is sufficient clear evidence in their texts to refute Dworkin's view of what it was they intended to do. I might be able to extend my understanding of what an author meant by reading the opinions of his contemporaries on the matter, or of others who had reason to be interested in his work.

I might then look to the general cultural, intellectual and political milieux of which he was a part, appreciating, of course, that it is always open to a person to react against the prevailing ethos as it is open to him to acquiesce in or support it. The way in which I eventually weigh the various factors and the interpretation that I come up with at the end of the day will, of course, be shaped by the influences of my own place and time and my capacity to empathise with what I take to be the rationale implicit in the work of another.

It is very surprising that a man who is able to find so little of interest in the history of human learning should not have stopped to question whether it is not in fact his approach to interpretation which renders the scholars he dismisses so ridiculous. One of the difficulties with Dworkin's discussion is that it is carried on in such an abstracted fashion from any empirical or theoretical context, and it lurches about so wildly from one point to another, that it is difficult to know how to deal with it. Let us turn to consider one of the basic contradictions running through Dworkin's discussion.

A social practice and participants'views

Dworkin at first rejects Austin's interpretation of the nature of law, because not all lawyers speak of law like that - then later on he recommends that:

“interpreting the practice [a social practice] be treated as different from understanding what other participants mean by the statements they make in its operation.” [p55]

He also indicates his awareness of this point when he says:

“the raw data of how friends typically treat one another are no more conclusive of an argument about the obligations of friendship than raw data were conclusive for arguments about courtesy in the community I imagined.” [p197 emphasis added]

We might add that "raw data" is a rather infelicitous way of referring to social facts which are complex constructions, especially when they are derived from an imagined community. But at least when Dworkin says that understanding a practice is different from understanding the statements of participants in it, I can almost hear Austin and Aquinas shouting in unison:

Precisely! Now you have it - so even if we had been engaged in the interpretation of legal practice, you could not, on your own admission, use what a lawyer would say to reject our interpretation of it - especially when that lawyer is only a figment of your imagination.

Having said that, I must admit that my sudden vision of Austin and Aquinas shouting in unison makes me suspect that the Dworkinian approach is perhaps beginning to rub off.

The problem with all these new starts, is that when people approach something such as interpretation de novo there is a great likelihood that they will run together a great many things which should be distinguished. If one says, sitting in one's armchair in the garden, "How do I understand a practice?", it is likely that one will run together art, law, creative, constructive, conversational, scientific and a great many other ideas.

To arrive at the conclusion that understanding what a person says and understanding the practice in which that person is engaged are different questions will hardly come as a revelation to psychologists, sociologists, anthropologists, literary critics - or judges; so why start afresh - why not look at the literature on interpretation in one or several of these areas? Perhaps, to start afresh is easier - but we are almost certain to reintroduce a good many confusions which others have already cleared up.

We can also see that fresh starts, without any attempt to provide an explanatory framework to enable us to see the coherent and consistent relationships between our ideas is likely to lead to confusion. Without it we are likely to emphasise a point when it suits our convenience, and then emphasise the opposite when the argumentative need changes. Hart, for example was quite happy to say of Austin's idea of dual capacity - seeing the legislator in his official capacity as one person, and in his private capacity as another - that "this complicated device is really quite unnecessary." [Hart 1961 p42]

Later on, when speaking of the secondary rules which the officials must accept he adds, "Of course, it is also true that besides these there will be many primary rules which apply to officials in their merely personal capacity which they need only obey." [Hart 1961 p113] The point about dual capacity being a complicated and unnecessary device (when rejecting the arguments of others) has now been forgotten. When reintroduced without comment in support of one's own argument it is a clear indication that it is not, indeed, regarded as either complicated or unnecessary.

Similarly with Dworkin and his acceptance of the distinction between interpreting a practice and determining what the participants in a practice have to say about it. Dworkin's appreciation of this distinction, like that of many others, is spasmodic - depending, by and large on whether he is discussing his own views, or somebody else's. Despite what he has just said, he uses the views of imaginary practicing lawyers to dispense with major theorists, legal and otherwise - and of course he uses the opinions of judges (as participants in a practice) to determine the nature of that practice when it suits:

“the dispute about Elmer was not about whether judges should follow the law or adjust it in the interests of justice. At least it was not if we take the opinions I described at face value and (as I shall argue later) we have no justification for taking them in any other way. It was a dispute about what the law was...”. [p20 emphasis added]

Later, when discussing the Brown case, he points out that:

“This case, like our other sample cases, was fought over the question of law. Or so it seems from the opinion, and so it seemed to those who fought it.” [p30]

In fact the whole of Dworkin's argument from page 37 to page 43 concerning the role of the judge is based on accepting statements by the judges concerning the nature of their practice.

“Nor is there any evidence in our sample cases that any of the lawyers or judges actually believed what this defense attributes to them. Many of the arguments would be entirely inappropriate as arguments for either the repair or the improvement of law; they make sense only as arguments about what judges must do in virtue of their responsibility to enforce the law as it is.” [p38 emphasis added]

Here Dworkin is happily accepting that judges' statements about the practice of judging must be right. In his discussion of the McLoughlin case, he points out that:

“but that was not the view of Lord Scarman, who thought he was bound by principles embedded in the precedents... though the disagreement was subtle it was nevertheless a disagreement about what the law was, not about what should be done in the absence of law.
          In fact there is no positive evidence of any kind that when lawyers and judges seem to be disagreeing about the law they are really keeping their fingers crossed. There is no argument for that view of the matter except the question-begging argument that if the plain-fact thesis is sound they just must be pretending.” [p39 emphasis added]

What a pity that Dworkin did not stop to look at Lord Scarman's speech in Furniss v Dawson as an example of Lord Scarman not being embarrassed by the principles embedded in the precedents.

Is there really no evidence of any kind, or no justification to say that the practice of the judges is other than the judges say it is? Can it be that the only way to make sense of what the judges say is to accept it at face value? Dworkin suggests, somewhat naively, that if we do not accept what the judges say at face value, then they must be either telling lies or prevaricating with the truth. At least, this is what I take him to mean when he refers to judges keeping their "fingers crossed".

This is of course not correct, and it would be astounding if it were. When judges are involved in complex cases, often having to give extempore judgments, it would be remarkable if they had a persuasive and detailed analysis of what is involved in judging. This is why they might look to the university professors to take a wider view, and to come back to them with views based on that wider perspective which they, with their detailed understanding could not be expected to have. There are of course a good many political and social reasons, which are well understood by people (other than Dworkin - sometimes) as to why the judges are reluctant to state openly in their judgments what exactly might be going on in the cases. That this is so can easily be established.

The Norman 1952

In the case of The Norman, the ship ran aground off the coast of Greenland in October 1952, with the loss of 19 of the crew of 20. The shipowners, although vicariously liable for the improper navigation of the vessel, would have been entitled to limit their liability to a rate per ton of the registered tonnage of the vessel, if they could establish that the stranding occurred "wholly without the actual fault or privity of the owners". To anybody reading the report of the case, it is clear that their lordships in the House of Lords, looked at the facts of the case and then decided that there were some things which the owners could have done, but that they did not do, therefore the owners could not prove that the stranding occurred without their actual fault or privity.

They would not therefore be entitled to take advantage of the provision of the Merchant Shipping Act of 1894 to limit their liability. As we shall see in a moment, in no case since then, have the shipowners been able to establish that they had done all they should have done so as to be able to limit their liability. On the face of it, it would appear that shipowners, since the early 1960s must have become more careless.

Of course, there is more to it than that. There were some very important factors operating in the judges' minds, but which they did not refer to in their speeches in The Norman. To go back to the facts of that case. If the owners had successfully established that they were not personally responsible for the loss of the ship (although they were vicariously liable for its improper navigation) then they would have brought themselves within the provisions of S503 of the Merchant Shipping Act 1894. Liability would then be limited to £15-00 per ton of the ships registered tonnage which was 522 tons. Total liability for the loss of the ship's crew would have amounted to £7830-00. If this was divided equally between the families of the lost seamen, they would have received £412-00 per family.

Even in 1960, when the case was reported, this was not big money, and compared very badly with the amount the family would otherwise have received. The judges, we are told, were very unhappy with the fact that the rate had not been increased since the 19th century to take account of the loss of the value of money due to inflation. They responded in the way they knew best - by finding ways in which any shipowner who wanted to avail of the protection of the provision, could have done more. In less judicial language, the provision, since 1960 became a dead duck, "the Lords have taken away that which by statute the law gave to ship-owners." [Sheen 1987 p158]

One would not have to be very astute to appreciate why it was that the judges did not announce that they were going, in effect, to repeal S503 of the Merchant Shipping Act. Certainly, there is not one word that I can find in the speeches in The Norman to say that the application of the section was unjust. Yet according to Sheen J. in his address to the Chartered Insurance Institute:

“What I seek to demonstrate is that in a situation in which the law appears to any right thinking person to be manifestly unfair, judges will find a way of producing an answer which is fair... What may be of real interest to you is to see how judges can change a law which they regard as unjust.” [Sheen 1987 p158]

As Austin pointed out in his discussion of statute law, "if it be generally disliked, although it be perfectly perspicuous, it probably will be abrogated by the tribunals at the instance of public opinion." [Austin 1885 p656]

In Rossminster, Lord Denning pointed out that judges are not allowed to read Hansard when concerned with the interpretation of a statutory provision. Although he did not say so in terms, it is a clear implication from what he did say that he did in fact read the parliamentary debates. [Rossminster CA at p399] Perhaps he was unwilling to be as explicit as he had been in Davis v Johnson, for his openness there about referring to Hansard was subjected to serious criticism by their Lordships in the House of Lords. It is clear from what Denning says in these judgments that he was also claiming that other judges consulted Hansard although they were not willing to admit this openly. [Davis CA at 850-1 and HL 1132]

I am afraid that if we were to adhere to the line which Dworkin advocates, that what the judges say in their judgments is to be taken at face value, then we should have a very odd jurisprudence, and one which is quite incapable of acknowledging even the existence of most of the interesting legal developments in recent years. And of course, if legal advisers had adhered to the Dworkinian view, then perhaps most of those developments would not have taken place.

Austin may have had few students, very little income and no computerised retrieval systems, but he did know that:

“Generally the new rule is not introduced professedly, but the existing law is professedly ascertained by interpretation or construction... If the new rule obtains as law thereafter it... is considered as evidence of the previous state of the law; and the new rule, thus disguised under the garb of an old one, is applied as law to new cases.” [Austin 1885 p531]

An interesting observation to the effect that "interpretation" is often used by the judges as a cover for activities of a different sort. He did go on to point out that:

“Law of this kind... has been styled by Mr. Bentham ‘Judge-made law:’- a term pithy and homely, and which I therefore love, but which nevertheless I am constrained to reject.
          For, first, it does, in some sort, smack or savour of disrespect. And, as I cannot concur with Mr. Bentham, in his sweeping dislike of law made by judges, I cannot consent to mark or brand it with a name importing irreverence.” [Austin 1885 p532]

Whilst appreciating that judicial creativity was essential, Austin also appreciated that judges sometimes hid behind what he called "childish fictions" [Austin 1861 p634] and that we should blame them for legislating under cover of vague and indeterminate phrases which would be censurable in any legislator. [Austin 1885 p219]

Given Dworkin's occasional commitment to the fact that the judges are not involved in changing the law, he now has to construct a theory which allows for the obvious fact that the law does change, and to ensure that his account of this is compatible with his view of political theory.

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