Rejecting the view, widely held among legal theorists, that judges create law rather than merely interpret it, Ronald Dworkin insists that for every hard case there is one right answer: the one that fulfills the obligation of the community to treat its members in a coherent and principled manner.
Examining cases from common law, statute law, and American constitutional law, Dworkin formulates guidelines for finding that elusive right answer. The right interpretation, he concludes, should try to incorporate the virtues of justice, or moral justifiability; fairness, or respect for the expressed will of the majority; and integrity, or adherence to principled consistency rather than capriciousness.
The author’s notion of integrity requires that judges steer between the two extremes of a slavish adherence to the letter of existing law, on the one hand, and an arbitrary disregard for all legal precedent, on the other. Judges’ decisions, therefore, must be constrained by precedent even as they adapt the law to new situations. Dworkin ascribes to other legal theorists a cavalier indifference to precedent; in doing so, he comes perilously close to setting up a straw man.
With regard to questions of constitutional law, Dworkin tries to chart a middle course between a too-meddlesome judicial activism and the passivism favored by American conservatives. Judges, the author asserts, intervene rightly when they preserve a principle by overruling laws that violate individual rights; they intervene wrongly when they interfere in matters of policy. Unfortunately, Dworkin’s sharp theoretical distinction between policy and principle can easily become blurred in real life.
Although LAW’S EMPIRE is difficult for the average reader to plow through, it is no more difficult than it has to be. Specialized legal terms, and ordinary words used in a special way, are carefully defined. The author makes deft use of homely examples and illuminating analogies to clarify his more complex arguments. The explanatory footnotes provide a mine of bibliographical information; the index is also useful.
Dworkin’s abstract, tightly reasoned work will appeal chiefly to scholars in the fields of legal and political philosophy rather than to the general reader. The author has provided a nourishing broth for all those who are hungry for intellectually challenging argumentation.