Vol. 3, No. 3 (March, 1993) pp. 17-18
READING DWORKIN CRITICALLY by Alan Hunt (ed.), New York: Berg,
1992.
Reviewed by Paul Peterson, Department of Politics, University of
South Carolina, Coastal Carolina College
READING DWORKIN CRITICALLY is a collection of nine essays by
legal scholars who have varying degrees of affiliation with the
Critical Legal Studies movement. The editor, Alan Hunt, maintains
that we may now be in a post-Critical Legal Studies phase due to
"internal divergences within the critical legal tradition
[that] now need to be more openly confronted." Hunt views
the essays in this volume as a reflection of these divergences.
According to Hunt, "the present essays take up a range of
themes that stem" from the critical legal tradition (p. 4).
Of the eleven scholars involved in this project, one (Andrew
Altman) is from the United States, two (one being Hunt) are from
Canada, three are from Australia, and five are from England. As
their identification with the Critical Legal Studies movement (in
either its original form or its post-CLS form) indicates, these
authors share a position that is politically and
jurisprudentially to the left, understood within the context of
this volume as placing a greater emphasis on equality (generally
understood as equality of condition) than on liberty and property
rights. Hunt is sensitive to the problematics of such terms as
left and right, but notes: "[T]here remains a sense in which
this label [left] is still helpful, if only in a provisional way.
For example, most, if not all, of the present essays take issue
with Dworkin for not attaching sufficient significance to the
profound structural inequalities of modern capitalist
democracies" (p. 3).
It is the leftward, or "critical," bent of these essays
that, for Hunt, is one of the hallmarks of this anthology. As he
correctly observes: "It is significant that criticism of
Dworkin's project has emanated from commentators who espouse
positions generally to 'the right' of his own" (p. 1).
Recognizing that these essays emerge from a Critical Legal
Studies perspective makes at least several of them fairly
predictable. Thus, Hunt, in the lead essay, finds Dworkin guilty
of "a naive faith in the capacity of law to check and
control the power centres of the political and economic
system" (p. 13) and that "Dworkin's preoccupation with
state power acts to ignore all other sources of power" (p.
16). Allan C. Hutchinson argues that Dworkin's jurisprudence is
"a devalued moral coinage" that is "profoundly
elitist and undemocratic" (p. 62) and that serves to thwart
participatory democracy that receives only a "a stunted
contemporary articulation in Dworkin's liberal legalism" (p.
70). In one of the better essays in this volume, Anne Barron
suggests that Dworkin fails to meet the challenge of
post-modernism. Unlike enlightenment thought,
"post-modernism insists upon the irreducible heterogeneity
and multiplicity of human experience" and, therefore,
"demands an attack upon 'all mechanisms of repression, all
courts, institutions, systems of thought that perpetrate the
injustice of universal judgment and do not recognize the silence
imposed on their victims'" (p. 155). Dworkin, with his
insistence upon right answers (universal judgment), is too
grounded in the liberal tradition to join cause with
post-modernists of this description.
These essays do not all share equally in their rootedness in the
assumptions of Critical Legal Studies, and several can be read
independently of that school of thought. In particular Sheldon
Leader has a thoughtful essay on Dworkin's treatment of the
problem of bias in the judiciary. Leader concludes that Dworkin's
effort to have the role of moral and political principles checked
by their fit with settled law is undermined by the role that
these same principles play in describing that settled law.
In "Fissures in the Integrity of LAW'S EMPIRE: Dworkin and
the Rule of Law," Andrew Altman maintains that Dworkin's
view of the rule of law requires a correlation with a politics of
principle that Altman finds missing in the complexity of a
contemporary society such as America. In Altman's view, Dworkin
"never explains how the law of a society deeply divided over
fundamental questions of moral and political principle can
produce a system of law that is anything other than a patchwork
of compromised and truncated principles" (p. 186). Costas
Douzinas, Sahaun McVeigh, and Ronnie Warrington examine the
relationship between Dworkin's legal theory and hermeneutics,
finding LAW'S EMPIRE to be "a stylistically stilted
application of Gadamerian hermeneutics to law that has all but
lost the sting of the original" (p. 133).
Another essay not necessarily tied to Critical Legal Studies and
the best essay in this collection is Robert Moles's "The
Decline and Fall of LAW'S EMPIRE." Moles successfully
demonstrates the superficial and cavalier manner in which Dworkin
discusses other theorists, noting "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" (p. 96). Moles finally concludes that Dworkin's
imposition of an intention on authors that is clearly contrary to
their real intentions and his creation of fantasies "might
be fun, fiction or it might be megalomania; it must surely rank
as a very poor form of scholarship" (p. 121). In a similar
vein, Hutchinson has a brief but excellent discussion of how
slippery and evasive Dworkin can be in responding to his critics
(pp. 46-47).
What most of the critics in this volume, particularly Hunt,
Hutchinson, and Barron, have to say about Dworkin they would
probably say about almost anyone else writing outside of the
Critical Legal Studies perspective. Having noted that, it can be
said that this volume may be most helpful in locating Dworkin's
place in contemporary jurisprudence. Just as John Rawls and
others have sought to reformulate liberalism, Dworkin has sought
to apply that reformulation to jurisprudence. Both Rawls and
Dworkin have sought to move liberalism away from the Lockean
liberalism that uses equality as the basis for justifying liberty
and property rights to a very different kind of liberalism that
places an emphasis on equality of power, access, and outcome.
This reworking of the principle of equality is a point that
Dworkin shares with the Critical Legal Studies movement, and it
is something of a point of contention between Dworkin and more
mainstream commentators on jurisprudence. But for those in the
Critical Legal Studies movement, Dworkin's radicalism does not go
far enough. The Critical Legal Studies movement has always had
something of at least a quasi-Marxist view of the law, a view
which sees the law as being epiphenomenal and, therefore,
derivative from more primary economic forces. This is a view of
the law that Dworkin does not share. Like most mainstream
commentators, Dworkin treats the law as a force that can be
explained and changed independently of other non-legal and
non-political forces in society.
These essays remind us that however unique or radical Dworkin may
appear, he still tends to speak the same language as his more
traditional critics when it comes to conceptualizing the nature
of law. Put another way, Dworkin's view of the nature of law has
much more in common with his critics from "the right"
than it does with the critics who write in this volume. By
showing the chasm that exists between the jurisprudence of
Dworkin and that of the Critical Legal Studies movement, this
collection might be of greatest use to those who have identified
with one or more of the concerns of that movement and who have
also found Dworkin's jurisprudence rewarding.
Copyright 1993