For decades we’ve had the privilege of working with the legal scholar Ronald Dworkin, who passed away yesterday at 81. Widely considered the most influential legal philosopher of his generation, Dworkin’s work was built on his belief that morality must underlie the interpretation and application of our abstract principles of law. In one of his best-known works, 1986’s Law’s Empire, Dworkin offered a framework for the analysis of critical issues in law, addressing in the process the dominant but—to his mind—insufficient theories that then held sway. In the following excerpt from Law’s Empire he outlines the project’s aim.
This book is about theoretical disagreement in law. It aims to understand what kind of disagreement this is and then to construct and defend a particular theory about the proper grounds of law. But of course there is more to legal practice than arguments about law, and this book neglects much that legal theory also studies. There is very little here about issues of fact, for example. It is important how judges decide whether a workman has a legal right to damages when a fellow employee drops a wrench on his foot, but it is also important how a judge or a jury decides whether the workman (as his employer claims) dropped the wrench on his own foot instead. Nor do I discuss the practical politics of adjudication, the compromises judges must sometimes accept, stating the law in a somewhat different way than they think most accurate in order to attract the votes of other judges, for instance. I am concerned with the issue of law, not with the reasons judges may have for tempering their statements of what it is. My project is narrow in a different way as well. It centers on formal adjudication, on judges in black robes, but these are not the only or even the most important actors in the legal drama. A more complete study of legal practice would attend to legislators, policemen, district attorneys, welfare officers, school board chairmen, a great variety of other officials, and to people like bankers and managers and union officers, who are not called public officials but whose decisions also affect the legal rights of their fellow citizens.
Some critics will be anxious to say at this point that our project is not only partial in these various ways but wrong, that we will misunderstand legal process if we pay special attention to lawyers’ doctrinal arguments about what the law is. They say these arguments obscure—perhaps they aim to obscure—the important social function of law as ideological force and witness. A proper understanding of law as a social phenomenon demands, these critics say, a more scientific or sociological or historical approach that pays no or little attention to jurisprudential puzzles over the correct characterization of legal argument. We should pursue, they think, very different questions, like these: How far, and in what way, are judges influenced by class consciousness or economic circumstance? Did the judicial decisions of nineteenth-century America play an important part in forming the distinctive American version of capitalism? Or were those decisions only mirrors reflecting change and conflict, but neither promoting the one nor resolving the other? We will be diverted from these serious questions, the critics warn, if we are drawn into philosophical arguments about whether and why propositions of law can be controversial, like anthropologists sucked into the theological disputes of some ancient and primitive culture.
This objection fails by its own standards. It asks for social realism, but the kind of theory it recommends is unable to provide it. Of course, law is a social phenomenon. But its complexity, function, and consequence all depend on one special feature of its structure. Legal practice, unlike many other social phenomena, is argumentative. Every actor in the practice understands that what it permits or requires depends on the truth of certain propositions that are given sense only by and within the practice; the practice consists in large part in deploying and arguing about these propositions. People who have law make and debate claims about what law permits or forbids that would be impossible—because senseless—without law and a good part of what their law reveals about them cannot be discovered except by noticing how they ground and defend these claims. This crucial argumentative aspect of legal practice can be studied in two ways or from two points of view. One is the external point of view of the sociologist or historian, who asks why certain patterns of legal argument develop in some periods or circumstances rather than others, for example. The other is the internal point of view of those who make the claims. Their interest is not finally historical, though they may think history relevant; it is practical, in exactly the way the present objection ridicules. They do not want predictions of the legal claims they will make but arguments about which of these claims is sound and why; they want theories not about how history and economics have shaped their consciousness but about the place of these disciplines in argument about what the law requires them to do or have.
Both perspectives on law, the external and the internal, are essential, and each must embrace or take account of the other. The participant’s point of view envelops the historian’s when some claim of law depends on a matter of historical fact: when the question whether segregation is illegal, for example, turns on the motives either of the statesmen who wrote the Constitution or of those who segregated the schools. The historian’s perspective includes the participant’s more pervasively, because the historian cannot understand law as an argumentative social practice even enough to reject it as deceptive, until he has a participant’s understanding, until he has his own sense of what counts as a good or bad argument within that practice. We need a social theory of law, but it must be jurisprudential just for that reason. Theories that ignore the structure of legal argument for supposedly larger questions of history and society are therefore perverse. They ignore questions about the internal character of legal argument, so their explanations are impoverished and defective, like innumerate histories of mathematics, whether they are written in the language of Hegel or of Skinner. It was Oliver Wendell Holmes who argued most influentially, I think, for this kind of “external” legal theory; the depressing history of social-theoretic jurisprudence in our century warns us how wrong he was. We wait still for illumination, and while we wait, the theories grow steadily more programmatic and less substantive, more radical in theory and less critical in practice.