26 February 2014

Dworkin: What is law? 1986 1

Notes on Dworkin's 1986 (Law's empire, Harvard UP).

Dworkin is as big a figure in American legal thought as there is. And this is his Big Book. Let me see if I can figure out what his main (famous) views actually come to, and whether or not I share them.

Start (in chapter 1) with what he calls the plain-fact view: "[t]he law is only a matter of what legal institutions...have decided in the past" (7). I suppose this is the legal realist's view (Holmes and the like), but in a nice move D remarks that the critical legal studies people--about as far left as you can go from the far right (?) realist view--are simply drawing radical conclusions from real law. I have to admit that this is a little opaque to me though. Says D: 
They say that past institutional decisions are not just occasionally but almost always vague or ambiguous or incomplete, and that they are often inconsistent or even incoherent as well. They conclude that there is never really law on any topic or issue, but only rhetoric judges use to dress up decisions actually dictated by ideological or class preference. The career I have described, from the layman's trusting belief that law is everywhere to the cynic's mocking discovery that it is nowhere at all, is the natural course of conviction *10 once we accept the plain-fact view of law and its consequent claim that theoretical disagreement is only disguised politics. (9-10)
Maybe it's just a verbal point, but the claim that the people who think the law is nowhere to be found are real law people sounds odd to me. But I suppose if you take them to be looking for real law, that's enough to make them realists of a sort. Okay.

D clearly is right, though, in his observation that lawyers are often realists in practice, but when asked about the goings-on of tricky cases, become nuanced "theoretical-disagreement" types. You can see him angling to get his own interpretive-type semantic-ish theory started.

D thinks critics might complain that he will misconstrue the legal process if he partitions off all but "lawyers' doctrinal arguments about what the law is" (12). Such a critic (sounds lefty) would worry that focusing so high-level and abstract threatens to "obscure--perhaps they aim to obscure--the important social function of law as ideological force and witness" (12). This of course is foreshadowing, but it is instructive: D will not aim to undress the real law and expose its true sordid character. Instead he will take the law into the abstract space of logic and philosophy of language, and explore it as fundamentally as it will tolerate.

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