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