J O H N F I NNI S

O N R E A S O N A N D A U T H O R I T Y I N L A W ' S E M P I R E
Law's Empire wi l l shape j ur i spr udence by its admi r abl y r esour cef ul
at t ent i on t o under st andi ng a communi t y' s l aw "internally". It pr o-
mot es r ef l ect i ve under st andi ng o f t he practical argumentation const i t u-
t i ve o f t he attitude(s) i n whi c h t hat l aw subsists. But t he book neglects
some o f practical underst andi ng' s resources o f political and mor al
t heor y, and overest i mat es practical reasoning' s p o we r t o i dent i fy
opt i ons as t he best and t he r i ght )
The book "takes up t he internal, participants' poi nt o f vi ew; it tries t o
grasp t he ar gument at i ve charact er o f our legal practice by j oi ni ng t hat
practice and st ruggl i ng wi t h t he issues o f soundness and t r ut h part i ci -
pants face" (14).
O f course, this ' [joining" is, at least f or t he most part, an "onl y
' vi r t ual ' " (422) participation; j ur i spr udence, as such, is onl y a
pr opaedeut i c to, or r ef l ect i on upon, choosing; it is not i t sel f a choi ce
such as t he participants t hemsel ves must make, t o aut hori se or wi t h-
hol d, or t o risk or accept, coer ci on - and take t he consequences. But
1 All parenthetical and/or otherwise unattributed numbers are references to
pages of Law' s Empire. I shall pass over many good things in the book: its
neo-classical identification (413) of the ontological basis of law in an attitude
(voluntas, habitus) rather than in propositions, processes or persons as such; its
identification, alongside its healthy individualism in ontology and epistemol-
ogy, of the practical and moral reality of corporate responsibility ("personifi-
cation") (167, 172, 296); its critique of two-level utilitarianism (290) and its
comments on "academic" and "practical" elaboration of moral/political
theory (285-87); its elaboration of communi t y in terms of fraternity; its link
between the t heory of law, the t heory of evil law, and the force of good
law (110-11).
Law and Philosophy 6 (1987) 357-380.
1987 by D. Reidel Publishing Company.
358 J o h n F i n n ~
Dwo r k i n r i ght l y insists t hat j ur i s pr udent i al wor k, i nsofar as it bears on
t he si t uat i on o f s ome c o n t e mp o r a r y c o mmu n i t y , is ge nui ne l y c on-
t i nuous, i ndeed h o mo g e n e o u s , wi t h t he practical r eas oni ng wh i c h
c har ac t e r i s t i c al l y pr ecedes actual legal choi ces (legislative, j udi ci al , or
pri vat e) i n t hat c o mmu n i t y : "no f i r m l i ne di vi des j ur i s pr ude nc e f r o m
adj udi cat i on or any ot he r aspect o f legal pract i ce .... Juri s-
p r u d e n c e is ... silent p r o l o g u e t o any deci si on at l aw" (90; see also 380).
Th e theory r at her conf us i ngl y l abel l ed "l aw as i nt egr i t y", but pr opos e d
as an al t er nat i ve t o t he t heor i es l abel l ed c o n v e n t i o n a l i s m and pr ag-
ma t i s m, "offers i t sel f as c ont i nuous wi t h - t he initial par t o f - t he
mo r e det ai l ed i nt er pr et at i ons it r e c o mme n d s " (226). An d since t he
o p p o r t u n i t y (or lack o f oppor t uni t y) t o ma ke a choi ce - t o literally
j o i n a pract i ce and t ake t he cons equences - does n o t affect t he
a r gume nt a t i ve c ont e nt o f practical reasoni ng, t he j ur i s pr udent i al
me t h o d envi saged is equal l y available, i n pri nci pl e, t o gui de t he s t udy
o f c o mmu n i t i e s and laws f or e i gn t o us, or past.
Dwo r k i n t hus i dent i fi es a r g u me n t a t i o n (t he ar gument at i venes s o f
legal practice: 14) as cent ral l y const i t ut i ve o f t he social p h e n o me n o n
o f law. Ta ki ng my cue f r o m that, I have s poken her e o f practical
reasoni ng. 2 But t hat is n o t a t e r m wh i c h Dwo r k i n pr omot e s . Instead,
he pr ef er s t o speak o f interpretation. N o w "i nt er pr et at i on" is usual l y
u n d e r s t o o d as, i n a sense, passive or at least der i vat i ve, wher eas pr act i -
cal r easoni ng, r eas oni ng t owar ds choi ce and action, is u n d e r s t o o d as
act i ve and creative. An d i ndeed, Dwo r k i n s ome t i me s fi nds i n t he pas-
sivity or der i vat i veness i mpl i ci t i n t he t e r mi n o l o g y o f his ma s t e r - c on-
cepts ( amongs t wh i c h interpretation has per haps pr i de o f place) a tacit
and, I t hi nk, illicit s uppor t f or his cour t - f ocus s ed c onc e pt o f law. Co n -
sider, f or exampl e, his b r i e f obiter d i c t u m a bout legislation: it is "t he
pract i ce o f recognizing as l aw t he expl i ci t deci si ons o f special
bodi es wi de l y assumed t o have t hat p o we r [scil. o f legislating]" (99,
emphasi s added). Shuf f l ed out o f v i e w is t he l aw- cr eat i ng r ol e and
2 Of course, Dworki n often speaks, as we have seen, o f law as a practice. But
it is clear that he uses the t erm "practice" t o include any way o f thinking or
arguing, any "methods [a social scientist's] subjects use in formi ng their own
opinions..." (64).
On Reason and Authority in Law' s Emp i r e 359
pr a c t i c e o f l egi sl at ures; t hei r r es pons i bi l i t i es t o e n g a g e i n pr act i cal
r e a s oni ng wi t h an e y e t o t he c o m m o n g o o d a nd t h e R u l e o f L a w as
Ful l er o u t l i n e d it t hus n e v e r c o me i nt o f ocus.
Bu t I a m r u n n i n g ahead, a nd p o i n t i n g t o a we a k n e s s wh e n , f o r t he
pr es ent , I wa n t t o d we l l u p o n t h e i l l umi na t i ng s t r e ngt h o f c e r t a i n o f
t he b o o k ' s g u i d i n g c onc e pt i ons . No t a b l e a mo n g s t t hes e is c e r t a i nl y its
a ut hor ' s wi l l i ngne s s t o e n d o w his t e r m o r c o n c e p t , interpretation, wi t h
mu c h o f t he r i chness o f pr act i cal r eas oni ng' s c r e a t i ve e n g a g e me n t
wi t h goods ( i n c l u d i n g o f c our s e t he i r pr i va t i on: ha r ms ) a nd ends o r
purposes. O f t he t h r e e t e r ms I h a v e j u s t italicised, D w o r k i n r eal l y
p r o mo t e s o n l y t h e t e r m " pur pos e " ; b u t a b o v e all he emphasi ses, ma s -
si vel y, t he i r f u n c t i o n a l e qui va l e nt : t h e r ol e o f point i n i nt e r pr e t a t i on.
T h e i n t e r p r e t a t i v e 3 a t t i t ude t o wa r d s a pr a c t i c e assumes, he says, t hat
t he pr act i ce "has va l ue , t hat it s er ves s o me i nt er es t o r p u r p o s e o r
e n f o r c e s s o me pr i nc i pl e - i n s hor t t hat it has s o me p o i n t " (47). I nde e d,
i n t he case o f s o me pr act i ces ( such as t he l aw) b u t n o t ot he r s ( such as
t enni s), t he i n t e r p r e t a t i v e a t t i t ude ma k e s a n o t h e r as s umpt i on: t hat t he
r e q u i r e me n t s o f t he pr a c t i c e ar e "s ens i t i ve t o its poi nt " , i.e., ar e t o b e
" u n d e r s t o o d o r appl i ed or e x t e n d e d o r mo d i f i e d ... b y t hat p o i n t " (47).
B u t at t hi s j u n c t u r e ( whi c h, as he says, is f o u n d a t i o n a l f o r t h e w h o l e
b o o k : 50), D w o r k i n shi ft s gear. T h e p o i n t or , s y n o n y mo u s l y her e, t he
me a n i n g o f t he soci al pr act i ce i n q u e s t i o n ( c our t e s y, o r l a w) is he says,
t o be " i mp o s e d " (47).
Int erpret at i on of . . . soci al practices ... is i ndeed essentially concer ned wi t h
pur pose not cause. But t he purposes in play are not (fundamentally) t hose o f
s ome aut hor but o f t he interpreter. Roughl y, const r uct i ve i nt erpret at i on is a
mat t er o f i mposi ng pur pose on an obj ect or practice in or der t o make o f it
t he best possible exampl e o f t he f or m or genre t o whi ch it is t aken t o
bel ong (52).
Thi s last as s er t i on l eaves mu c h uncl ear . Is t h e i n t e r p r e t e r s u p p o s e d t o
3 Usi ng a "relaxed" and t her ef or e (358) "liberal" concept i on o f t he r equi r e-
ment s o f fit, I shall take as nor mat i ve t he usage established b y t he repeat ed
use o f "i nt erpret at i ve" on p. 107, and, seeking t o put t he b o o k in "t he best
light" b y a const r uct i ve interpretation, shall treat t he appearance el sewhere
of " i nt e r pr e t i ve " as a mer e lapsus calami, a "mistake".
360 J o h n F i n n 8
have some ot her purpose than the formal purpose o f maki ng the
object as good an instance of a genre as it can be.~ I f genres provide
the basis or f r amewor k of this formal purpose of interpretation,
whose and what purposes i nf or m and make t he genre what it is.~
Dwor ki n does not stay to consider these issues. Indeed, what carries
hi m towards his rather puzzling affirmation of the constructiveness o f
interpretation seems partly to be an equivocation on t he wor d "cre-
ative". Interpretation of art and social practice is to be called "creative"
because it aims "to interpret somet hi ng created by people as an entity
distinct f r om t hem, rather than what people say, as in conversational
interpretation, or events not created by people, as in scientific i nt er-
pretation" (50). The syntax o f our language makes this use o f
"creative" hazardously equivocal be t we e n the thus announced mean-
ing ("pertaining to the created") and the meani ng ("creative of...")
whi ch is suggested by t he metaphors of "imposing" and "construct-
ing" meani ng and purpose. 4
The difficulties here are by no means all o f Dworkin' s own
making. We can, as I have suggested elsewhere, usefully bear in mi nd
f our orders o f intelligibility: t he order ( of nature) whi ch is in no way
established by human understanding; t he order (studied by logic,
met hodol ogy and epistemology) whi ch one can bring into one' s own
understanding; the order whi ch one can bring into objects (boats,
phonemes, poems, constitutions) by maki ng t hem according to an
intelligible plan or purpose; and the order whi ch one can bri ng into
one' s dispositions, choices and actions. By calling the interpretation
whi ch bears on law "creative", Dwor ki n seems to place it in the third
order ( of making, p o e i s i s , f a c t i o ) rather than the f our t h (doing, p r a x i s ,
a c t i o ) . Aristotle, Aquinas and t he classic West ern tradition down to
Bentham' s uncompr ehendi ng attack upon it chose to envisage law
4 Dworkin is clear that the official meaning of "creative" in his use of
"creative interpretation" is simply %f a created object", and that, accordingly,
"interpretation is by nature the report of a purpose; it proposes a way of"
seeing what is interpreted ... as if" this were the product of a decision to
pursue one set of themes or visions or purposes, one 'point', rather than an-
other" (58-59).
O n Reason and Au t h o r i t y i n Law' s Empi r e 361
(like t he ot her mai n aspects o f political reality) i n t he f our t h order:
l aw has its principal i nt el l i gi bi l i t y as a gui de t o choice, pr oposed t o a
c o mmu n i t y o f choosers by t he choi ce o f t hat communi t y' s l aw-
makers. 5 Still, one o f law' s usually characteristic features is t hat it has
part o f its real i t y as symbol s or formul at i ons, whi c h are creat ed
objects i n t he t hi r d order, br ought i nt o bei ng by legislation (i ncl udi ng
j udi ci al fiat) and t her eaf t er i mbue d wi t h a real i t y i ndependent o f t he
i nt ent i ons and choices o f t hei r maker(s) - a reality whi c h thus creates a
pr obl em f or i nt erpret at i on distinct f r om t he pr obl em o f i nt erpret i ng
those i nt ent i ons and choices as acts. Mor eover , we cannot say that wh e n
Dwo r k i n calls legal i nt er pr et at i on "creat i ve" he t her eby locates it i n
t he t hi r d or der as opposed t o t he f our t h, f or he does
not seem t o have any such di st i nct i on i n mi nd. But we can say t hat it
wo u l d have be e n hel pf ul i f he had. For t her e is s omet hi ng distracting
about his appeal t o t he i nt er pr et at i on o f artistic creations as t he para-
di gm o f t he act i vi t y (let us allow, f or t he present , that it is i nt er pr et a-
tive) i nvol ved in t he pract i ce o f l aw and legal ar gument at i on, a prac-
tice whi cf l at bot t om seeks t o br i ng or der i nt o huma n choices and
actions, pr esent and fut ure.
O f course, l aw i n its cent ral instantiations seeks t o regul at e pr esent
decisions and f ut ur e conduct ( ac t a, agibilia, agenda) pr i mar i l y by
at t endi ng t o entities (rules, orders, precedents. . . ) al ready existing
because s o me h o w br ought i nt o bei ng i n t he past OCacta). Dwo r k i n
acknowl edges this expl i ci t l y by embr aci ng "t he assumpt i on t hat t he
most gener al poi nt o f l aw, i f it has one at all, is t o establish a j ust i f yi ng
connect i on b e t we e n past political decisions and pr esent coer ci on"
( 9 8 ) . 6 But t he a c knowl e dge me nt leaves s omet hi ng t o be desired,
because this st at ement o f "t he mos t gener al poi nt o f l aw" revi ves or
cont i nues t he puzzle about whose purposes or poi nt are t he pr i mar y or
f undament al subj ect - mat t er o f j ur i spr udent i al r ef l ect i on upon law.
Her e, particularly, wh o is supposed t o be doi ng t he "establish-
5 See, e.g., Aquinas, in Eth. 1, 1; Summa Theol. I-II, q. 90 aa. 1-4. On the four
orders, see Finnis, Natural Law and Natural Rights, pp. 136-39, 157.
6 "The heart of any positive conception o f law.., is its answer to the ques-
tion why past politics is decisive o f present rights" (117).
362 J o h n H n n ~
ing".~ T h e j u d g e or j uri st , n o w del i ber at i ng about t he c oe r c i on wh i c h
mi g h t n o w be or de r e d and, i f so, j ust i f i ed by r el at i on t o t he past deci -
sions.~ Or t he past deci si on- maker s, wh o ma d e t hei r decision(s) wi t h a
v i e w t o establishing a j ust i fi cat i on - subsisting unt i l t e r mi n a t e d by
pr e or da i ne d expi r y or a n e w deci s i on - f o r f ut ur e ( i ncl udi ng n o w
pr esent ) c oe r c i on (and, as Ha r t wo u l d wi s h t o r e mi n d us, ot he r
pr es ent and f ut ur e social l aw- r egar di ng conduct).~
If, as t he par adi gm o f i nt er pr et at i on suggests, t he est abl i shi ng o f t he
j us t i f yi ng c o n n e c t i o n wi t h t he past is t he wo r k (and pur pose) o f t he
j u d g e or jurist, still it is clone as a mo me n t i n a process o f j us t i f yi ng
pr es ent choi ce and f ut ur e conduct . It is done, i n ot he r wor ds , i n t he
cour se o f a process o f practical r eas oni ng - i ndeed, r eas oni ng t owar ds
choi ce and action, praxi s - i n wh i c h t h e j us t i f yi ng r el evance o f t he past
deci si ons ( enact ment s, pr ecedent s, cust oms, etc.) mu s t c o mp e t e wi t h
count er vai l i ng consi der at i ons o f e xpe di e nc e and pri nci pl e. I n that
respect, this j udi ci al or j uri di cal process o f r eas oni ng or a r g u me n t a t i o n
r esembl es - and has pro tanto t he same p o i n t as - t he r eas oni ng wh i c h
mu s t pr ecede any j ust i f i ed act o f legislative deci s i on- maki ng.
An d i f we t ake t he ot he r al t ernat i ve, and suppose t hat t he j us t i f yi ng
c o n n e c t i o n is est abl i shed pr i mar i l y i n t he legislative deci si on and act,
t he p o i n t o f l egi sl at i ng is, e v e n mo r e . obvi ousl y, i n ne e d o f f ur t he r
i dent i fi cat i on. Classically, t hat poi nt was i dent i f i ed as p r o mo t i n g t he
c o m m o n g o o d o f t he c o mmu n i t y f or wh i c h t he l egi sl at ure is r espons-
ible. But t hat mu s t b e el abor at ed so a~s t o art i cul at e a mo r e specific
poi nt , goi ng t o t he legal f o r m i n wh i c h a ut hor i t y is t hus exercised.
Thi s mo r e specific p o i n t is s umma r i s e d by t he phrase " The Ru l e o f
Law", a mu l t i f o r m poi nt analysed by Fuller, Raz; and ot her s i n t e r ms
o f t he desiderata o f f or ma l l y o r st ruct ural l y g o o d l aw- maki ng. But this
is scarcely at t ended t o by Dwor ki n. 7
I n short , i nt e r pr e t a t i on accor di ng t o Dwo r k i n is t o be unde r s t ood
o n t he mo d e l o f pur pos e, practical reasoni ng, and i nt ent i on. Thi s
unde r s t a ndi ng l ends p o we r and i l l umi nat i on t o his account o f t he
i nt er pr et at i ve at t i t ude and its r ol e i n and i n r el at i on t o law. But t her e
7 "General theories o f law, for us, are general interpretations o f our own
judicial practice" (410). Why be so narrow.~
O n Re a s o n a n d A u t h o r i t y i n Law' s Empi r e 363
is an i r r educi bl e passi vi t y or der i vat i veness a bout t he c onc e pt o f i nt er -
pr et at i on, e v e n aft er it has be e n t r a ns mut e d b y Dwo r k i n f r o m " o f
cr eat ed real i t y" t o "a cr eat i ng and i mp o s i n g o f t he i nt er pr et er ' s
pur pos e " (and aft er " cons t r uct i on" has l i kewi se slid f r o m "cons t r ui ng"
t o "creation"). 8 I nt e r pr e t a t i on resists bei ng t aken f o r t he wh o l e o f
pract i cal reasoni ng; or, per haps mo r e clearly, pract i cal r eas oni ng - e.g.,
pol i t i cal p r a x i s - resists be i ng r e n d e r e d as " i nt er pr et at i on o f a practice".
Adj udi cat i on and j ur i st i c i nt er pr et at i on resist be i ng t aken f or t he c o n -
st i t ut i ve and legislative mo me n t s i n t he life o f t he law; t hose
mo me n t s resist be i ng unde r s t ood, t h r o u g h and t h r o u g h , as
i nt er pr et at i ve. The s e resistances s h o w up as mi ssi ng or u n d e r -
d e v e l o p e d e l e me nt s i n t he book' s depi ct i on o f law' s e mpi r e - an
e mpi r e wh i c h is t hus t r eat ed as i f it we r e acquired i n t he w a y t he
Bri t i sh ( some say) once acqui r ed theirs: i n a fi t o f absence o f m i n d .
I n short: e ve n i f Dwo r k i n s ucceeded i n s h o wi n g t hat his account o f
i nt er pr et at i on and t he i nt er pr et at i ve at t i t ude i n legal pr act i ce is t he
best account , he wo u l d n o t t h e r e b y have s h o wn ( nor does he o t h e r -
wi se s h o w ) t h a t l aw and legal pract i ce and its p o i n t are adequat el y
descr i bed and expl ai ned by t hat account .
II.
Th e r e is mo r e t o be said about t he book' s e pi s t e mol ogy be f or e I t ur n
t o a mo r e or de r l y t r e a t me n t o f its pol i t i cal and j ur i s pr udent i al t heor y.
Th e "i nt er nal i t y" o f f r ui t f ul j ur i s pr ude nc e has a di me ns i on or i mpl i ca-
t i on wh i c h goes b e y o n d s i mpl y t he r e s ol ve t o unde r s t a nd legal
p h e n o me n a as t he y are u n d e r s t o o d by t hose whos e unde r s t a ndi ng and
i nt e ndi ng o f t h e m ma k e t h e m wh a t t he y are. Thi s f ur t he r d i me n s i o n
or i mpl i cat i on is i n pl ay i n t he book' s discussion o f "i nt ernal " and
"ext er nal " scept i ci sm ( 76- 86) . Thi s discussion restates poi nt s made,
8 Of course, the transmutation or slide does not go the whol e way, but
remains in the tension established by t he requirements o f "fit" and "sound-
ness", t he former t endi ng t o hol d the interpreter to t he pre-interpretative
reality established by ot her people's purposes, practical reasoning and i nt en-
tion(s).
364 John Finn~
perhaps mo r e crisply and tellingly, i n several r ecent articles by
Dwor ki n. The correct ness or ot her wi se o f a legal answer t o a legal
question, or o f a mor al answer t o a mor al quest i on, can be det er -
mi ne d onl y by one wh o ent ers i nt o t he legal, or mor al , ar gument s
and uses legal, or moral , criteria t o j udge one answer bet t er t han
anot her. Fr om wi t hi n t he practices o f legal and mor al ar gument , t he
di s agr eement s not ed by t he ext ernal sceptic: are si mpl y i r r el evant
- no a r gume nt at all. Ar gume nt s agai nst t he obj ect i vi t y or t r ut h o f a
particular legal or mor al cl ai m are wort hl ess unless t he y are legal or ,
mor al argument s. The ext ernal sceptic's denials t hat such claims can
or do cor r espond t o "t ranscendent al reality" or "t he fabric o f t he
" " " 9
uni ver se t rade on unexpl ai ned, i ndeed "i ncompr ehensi bl e met a-
phors, and are e mpt y and futile.
Law's Empire concl udes that "t he onl y skepticism wo r t h anyt hi ng is
skepticism o f t he i nt ernal ki nd" (86; see also 82). I nt er nal scepticism
accepts t hat s ome social practices (or ot her objects o f i nt erpret at i on)
are bet t er t han ot hers but deni es t hat a particular obj ect o f i nt er pr et a-
t i on has any o f t he wo r t h at t r i but ed t o it by its participants and those
wh o share t hei r i nt er pr et at i ve attitude. But this concl usi on is stated
wi t hout t he ~clat o f chapt er 7 o f A Matter of Principle. I ndeed, Law's
Empire's official posi t i on (80, 266) is t hat nei t her t he gener al signifi-
cance nor t he rightness o f ext ernal scepticism need be consider' ed i n
t he book or, it seems, i n any ot her j ur i spr udent i al (or political or
moral ) reflections.
The t r ut h t hat e ve n wi despr ead di sagr eement is no a r gume nt
against a mor al or legal assertion has an equal l y i mpor t ant count erpart :
t he fact o f one' s a gr e e me nt wi t h an assertion is no gr ound for
agreeing. In t he l ogi c o f ar gument at i on, onl y t he content o f my
knowl e dge or beliefs is rel evant , not t he fact t hat I possess t hem.
Al bei t i n a r at her specialised cont ext (331-32), Dwo r k i n ve r y clearly
adverts t o this "transparency" o f "I bel i eve t hat p " f or "It is t r ue t hat
9 A Matter of Principle, 172. See, for the arguments paraphrased in this para-
graph, ibid., pp. 137-42, 171-77; Cohen (ed.), Ronald Dworkin and Con-
temporary Jurisprudence (1984), 277-80; Taking Rights Seriously (1978), pp.
123-24.
O n Re a s o n a n d A u t h o r i t y i n Law' s Empi r e 365
p " and "p". He also states t he i mpl i cat i on o f this transparency, viz., that
i n maki ng any affi rmat i on, r eachi ng any concl usi on, answer i ng any
question, one is "r el yi ng at t he deepest l evel on wha t [one
oneself] believes" (314). Dwor ki n' s wri t i ngs t aken t oget her make it
clear that he rejects any subjectivist r eadi ng o f this; i n r el yi ng (say, f or
t he premisses o f an ar gument ) on wha t one believes, one relies on it
unde r t he descri pt i on w h a t is [or: seems to be] t he case, not under t he
descri pt i on w h a t I believe about wha t is t he case.
But I doubt wh e t h e r Dwo r k i n has focussed sufficiently on t he
i mpl i cat i ons o f t hese positions. In my Maccabaean Lect ure, 1 I not ed
t hat his ar gument s against e nf or c e me nt o f "maj or i t y pr ef er ences" fail
t o observe t he t ransparency o f ma n y beliefs hel d and act ed upon, by
majorities, but not because t hey are so held. L a w' s Empi r e does not take
up t hose ar gument s, so I ne e d not restate that point. But it is wo r t h
not i ng her e h o w of t en t he book speaks i n a wa y whi ch, by syntacti-
cally ove r l ooki ng transparency, gives needless (and, I bel i eve, uni n-
t ended) c omf or t t o a subjectivist r eadi ng o f t he book and a sub-
j ect i vi st under st andi ng o f ethical, political and legal t heor y. Consi der
t he italicised r edundanci es i n t he f ol l owi ng key statements:
(i) "t he exercise i n hand is...: di scover i ng whi c h v i e w o f t he
sover ei gn mat t ers we discuss sorts best wi t h t he convictions w e
each, together or severally, have a n d retain about t he best account o f
our c o mmo n practices" (86).
(ii) '[Justice is a mat t er o f t he cor r ect or best t he or y o f mor al and
political rights, and anyone' s concept i on o f j ust i ce is his
t heor y, imposed by hi s o w n per s onal convictions, o f wha t these
rights actually are" (97).
(iii) "Hercul es is not t r yi ng t o reach w h a t he believes is t he best
substantive result, but t o fi nd t he best justification he can o f a
past legislative event " (338).
10 'A Bill o f Rights for Britain? The Moral o f Contemporary Jurisprudence',
Proc. Brit. Acad. 71 (1985) at 309-11.
366 . John Finnis
Or again: Perhaps Dworki n needed to say that the good j udge decides
a hard case "by empl oyi ng his own moral convictions" (120), for he
needed to make clear that the criteria of soundness ultimately used by
the j udge ar e of soundness as assessed by him, and not, in the last
analysis, as assessed by (other members of) society. But he woul d have
done well to add,' immediately, that the j udge does not empl oy his
moral convictions as his but as sound criteria, principles, rules or other
factors relevant as premisses in an argument. 11
Finally, Dworki n seems to give relativists - legion amongst law
students - needless (and again, I think, unintended) comfort by
extending his denials much wider than was called for by the meta-
phorical metaphysics of the external Sceptic. For Dworki n says that
"the practices of interpretation and morality give these claims [about
Hamlet and about the wrongness of slavery] all the meani ng they need
or could have" (83, emphases added); and "the ' objective' beliefs most
of us have [about such matters] are moral, not metaphysical, beliefs"
(82). True, those practices and beliefs do not include the external
sceptics' bugaboos, "transcendental reality", "the fabric of the
universe", the "out there", etc. But they do, commonl y, include or
presuppose conceptions of what counts as human flourishing, and
these conceptions not only presuppose some beliefs about the nature
of things (e.g., freedom of choice, continuity of personal identity), 12
but also contribute to (the rational justification of) other beliefs about
the nature of that (human) type of being whose flourishing could
involve the opportunities and responsibilities whi ch moral j udgment s
assert it does. The truth that practical knowl edge cannot be deduced
from theoretical does not entail that there is no ont ol ogy of morals,
or that ethics has not hi ng to learn from and nothing to Contribute to
the metaphysical understanding of our nature and our world.
1, Similarly, it is a pity Dworkin uses "conviction", rather than "considera-
tion", "factor", "argument", or "principle", is passages such as: "The constraint
fit imposes on substance ... is therefore the constraint of' one type of political
conviction on another in the overall judgment [bye] which interpretation
makes a political record the best it can be overall" (257, emphasis added).
12 As Dworkin himself says, one's view about the point of law must rest on
"large questions of'personality, life, and community" (101).
On Reason and Authority in Law's Empi re 367
l i e
Epistemological or met hodol ogi cal issues closer to the central con-
cerns o f jurisprudence are raised by Dworki n' s account of the "seman-
tic sting" and his renderi ng of legal positivism, legal Realism, and
natural law t heor y into "semantic theories o f law". Her e t he book
seems to me confused and seriously misleading.
The "semantic sting" is Dworki n' s name for "the ar gument that
unless lawyers and judges share factual criteria about t he grounds o f
law t here can be no significant t hought or debate about what t he law
is" (44). "Semantic theories suppose that lawyers and judges use mai nl y
the same criteria ... in deciding when propositions o f law are true or
false..." (33).
One notices at once the lack o f quantification o f "share factual
criteria": share some, share many, share all? The second passage says:
"mainly". But i f this bel i ef is fallacious - a poisonous sting to be drawn
- it seems indistinguishable f r om Dworkin' s ow'n bel i ef that "the law-
yers o f any culture wher e t he interpretive attitude succeeds must
largely agree at any one time" - agree, that is, "about what practices
are legal practices", and about "legal paradigms, proposition[s] of law
like t he traffic code that we take to be true i f any are" (91). Whe n
stating his vi ew that such "pre-i nt erpret i ve, agr eement is a necessary
precondi t i on o f any flourishing interpretative, critical or juristic ent er-
prise, Dwor ki n claims that his vi ew differs f r om the semantic sting in
not supposing "that we identify these institutions [and paradigms]
t hr ough some shared and intellectually satisfying definition of
what a legal system necessarily is and what institutions necessarily
make it up" (91).
But t he latter supposition seems quite distinct f r om the supposi-
tions earlier said to constitute the semantic sting and the semanticism
of semantic theories o f law - suppositions which, as we saw, made no
assertions about "what a legal system necessarily is", but wer e i den-
tified by Dwor ki n as claiming that t he criteria o f "the law" whi ch are
used by judges and lawyers - presumably, o f a given, particular legal
system - are "mainly shared". At this poi nt I am not considering
whet her anyone has ever held any o f the semantic theories, or been
368 John Finnis
t he victim of t he semantic sting. I am concerned onl y wi t h Dworki n' s
failure, bot h when defining vicious semanticism, and when speaking
in his own voice, to distinguish bet ween "the law" ( of a
particular communi t y, the topic o f t hought by that communi t y' s law-
yers and judges) and "law" (a topic o f t hought o f anthropologists,
sociologists, ot her historians, moralists and jurisprudents such as Hart,
Kelsen and Dwor ki n) . Dwor ki n treats "the law" and "law" as
synonymous, ~3 and I fail to see how he can be so i ndi fferent to t he
manifest difference bet ween the t wo terms, corresponding to the dif-
ference bet ween the t wo sorts o f intellectual enterprise whi ch I have
just indicated.
Positivist and natural law theories in jurisprudence are not, and do
not even l ook like, theories about the law o f any particular communi -
t y (in t he sense o f offeri ng to identify propositions of law whi ch are
true for that legal system), or about the criteria for identifying t he law
whi ch are used by the lawyers and judges of any particular communi -
ty. They l ook like theories about what law - a(ny) legal system -
"necessarily is" (at least in its paradigmatic instantiations, its central
c a s e s ) .
Mor eover , such theories are not, and do not even look, "semantic",
whet her in t he sense stipulated by Dwor ki n or in any other. Austin's
"main idea", Dwor ki n says, was "that law is a mat t er o f historical deci-
sions b y people in positions of political power " (36). Hart's, he says, is
"that the t rut h o f propositions of law is in some i mport ant way
dependent upon conventional patterns o f recognizing law" (35).
Nei t her "main idea" is semantic. 14
13 E.g., in describing semanticism, he moves - without comment, and in
consecutive sentences - from (the assumption that) "we all use the same
criteria in framing ... statements about what the law is" to (the assumption
that) "we do share some set of standards about how 'law' is used" (32).
14 The account of Hart is quite inaccurate, too. Dworkin asserts that,
according to Hart, the rule of recognition, in whose acceptance lie "the true
grounds of law", "assigns to particular people or groups the authority to
make law" (34). Consequently, anyone who obeyed Hitler's commands
simply out of fear, and who thus did not accept a rule of recognition
entitling Hitler to make law, would be committed, according to Dworkin's
On Reason and Authority in Law' s Emp i r e 369
Si mi l ar l y, Dwo r k i n ' s s e ma nt i c r e n d e r i n g o f nat ur al l a w t h e o r y
p r o d u c e s a t hesi s wh i c h nat ur al l a w t heor i s t s h a v e n o t t r e a t e d as
i nt egr al t o t he i r t heor i es : " t hat l a wy e r s f o l l o w cr i t er i a t hat ar e n o t
e n t i r e l y fact ual , b u t at l east t o s o me e x t e n t mor a l , f o r d e c i d i n g wh i c h
p r o p o s i t i o n s o f l a w ar e t r u e " (35).
T h e t r u t h is t hat n e i t h e r pos i t i vi s m n o r nat ur al l a w t h e o r y is a n y
m o r e c o n c e r n e d a b o u t " h o w all l a wy e r s us e t he w o r d ' l a w' " (36) t ha n
D w o r k i n i s ) 5 T h e b o o k ' s c o n c e r n a b o u t t h e s e ma nt i c st i ng a nd
s e ma nt i c t h e o r i e s o f l a w s e e ms t o me a mu d d l e a nd a di st r act i on, save
i n o n e r espect : t h e di s cus s i on o f t he p s e u d o - q u e s t i o n w h e t h e r
i mmo r a l l egal s ys t e ms r e a l l y c o u n t as l aw. I t is t he case t hat s o me l egal
phi l os ophe r s , e.g., Ha r t , h a v e t h o u g h t t hat j u r i s p r u d e n c e mu s t ma k e ,
" o n c e a nd f o r all", a c h o i c e b e t w e e n a " wi d e " sense o f " l a w " ( such t hat
t he Nazi s ha d l aw) a nd a " n a r r o w" ( such t hat t h e y di d not ) . Dwo r k i n ' s
di s cus s i on br i ngs o u t we l l t h e c o n t e x t - a nd a u d i e n c e - r e l a t i v i t y o f
s t a t e me nt s s uc h as " t he Nazi s ha d l a w" ( 1 0 3 - 0 4 ) . 16 C o n t e m p o r a r y
, Hart, t o say that " no proposi t i ons o f l aw we r e t rue" in Nazi Ger many (35).
~This over l ooks that Hartian rules o f r ecogni t i on are usually multiple, and
contain rules whi ch are in no wa y der i ved f r om ( even wh e n
t hey are subj ect t o) t he supr eme rul e o f change whi ch identifies t he peopl e
or gr oup wi t h supr eme aut hor i t y t o make laws.
15 As Dwor ki n qui et l y concedes in t he not es tO anot her chapter, Hart' s
t he or y was not cont r ol l ed b y semantic considerations, but by j udgment s
about "what wo u l d cure defects in t he organization o f political coer ci on that
wo u l d be inevitable wi t hout [special legal] convent i ons [broadl y accept ed
t hr oughout t he communi t y] " (429), and by a vi e w o f whi ch concept o f l aw
wo u l d "facilitate moral refl ect i on" (430). Dwor ki n' s discussion o f Raz' s
positivism is inaccurate. He claims that it "explicitly denies any reliance on
political convi ct i ons o f any sort", and that it "fall[s] back on linguistic rules,
t o say that this is j us t what ' law' or ' aut hori t at i ve' means under any criteria
f or its application educat ed l awyers and l aymen all accept" (429-30).i In t he
article cited, viz, ' Aut hori t y, Law and Moral i t y' , The Monist 68 (1985):
295- 324, Raz in fact denies that he assumes any such consci ous
unanimity (p. 304) or conceptual clarity (p. 321), and founds his argument on
claims about what practices are "servic[e]able" and beneficial (p. 304) and
(evaluatively) "i mport ant " (p. 320).
16 See also Finnis, Natural Law and Natural Ra'ghts, pp. 234- 37, 365- 66;
contrast Hart, The Concept of Law, pp. 203, 206- 07; Essays on Bentham, p. 146.
370 John Finn8
jurisprudence, in some of its argument s and positions; has indeed suf-
fered somewhat f r om what I ha ve called "conceptual dogmatism",
and Dworki n' s protest against that is wel l taken, iv But he errs in
claiming t hat the f r amewor k self-interpretation of recent juris-
prudence is, has been, or can be usefully represent ed as concerned
wi t h or f ounded upon linguistic agreement, or bei ng in any ot her
way "semantic". 18
IV.
It is time to at t end, t o Dworki n' s t heory of law. But there is a bridge
bet ween his t heory oi nt erpret at i on and one of the mai n features of
his t heory of l aw "as integrity". The bridge: those pervasive Dwor -
kinian categories, "the best" and "the right".
The task of interpretation, r emember , is to make its object the best
it can be (within its genre), to show it "in the best light possible"
(243). The goal of l aw as integrity, i.e., of the interpretative attitude
constitutive of the practice we call law, is to find in every situation of
civil dispute the right answer whi ch the gi ven civil society' s law makes
available "in most hard cases" (viii), and whi ch is identified by the best
interpretation or t heory of that legal system. So: "Judges who accept
the interpretive ideal of integrity decide hard cases by trying t o find,
17 There has been a good deal of loose thinking, or talk, about "conceptual
analysis", explaining "the concept of law", and the like. See, e.g., Natural Law
and Natural Rights, pp. 278-79. But the malady is not well diagnosed in terms
of "semantic theories", afortiori when "semantic" is itself used imprecisely (in
the ways mentioned above, and so as to extend even to proposals about how
words should be used: e.g., Law's Empire, 135).
18 So Dworkin in the end misstates his legitimate point. He says that it is a
mistake to ask whether wicked legal systems are law, because the question
assumes that its answer turns on whether the linguistic rules we share for
applying "law" include or exclude such systems - whereas in fact "we do not
share any rules of the kind it assumes" (108): It would have been more
accurate to say that while we do share linguistic rules which bear on the
question, we can and do use or adapt or discard those rules, intelligibly,
when certain contexts make our understanding and our communicative
intentions sufficiently clear.
O n R e a s o n a n d A u t h o r i t y i n Law's Empi re 371
in some coherent set o f principles about people' s rights and duties, t h e
best constructive interpretation o f t he political structure and legal
doctrine o f their communi t y!' (255; also 262). Law, or "law's attitude",
"aims, in the interpretive spirit, to lay principle over practice to show
t h e best route to a bet t er future, keepi ng t h e right faith wi t h t he past"
(413). "We accept i nt egri t y as a distinct political ideal, and
we accept the adjudicative principle o f integrity as sovereign over
law, because we want to treat ourselves as an association o f principle,
as a communi t y gover ned by a single and coherent vision o f justice
and fairness and procedural due process in t h e right relation" (404; also
219, 398). 19
No w it is true that injustice is done onl y when w r o n g choice is
made in distributions o f goods or in ot her dealings bet ween persons.
So, when no wr ong is done in such dealings, a right answer has been
f ound to a practical probl em. But that in no way entails that justice
has anyt hi ng to do wi t h searching for "the right" distribution, or "the
right" answer.
Dworki n' s efforts to show that a u n i q u e l y correct ("the right")
answer is normal l y available in a hard case provi de an impressive
dialectical ar gument for t he cont rary and classical vi ew that whi l e
t here are many ways o f going and doi ng wrong, t here are also in
most situations o f personal and social l i f e a variety o f incompatible
right options - that we should seek good answers, and eschew bad
ones, but not dream of best ones. Indeed, Dworki n' s account o f the
relations bet ween "fit" and "soundness" in interpretation helps make
clear w h y , in any realistic context, no uni quel y correct answer could
be available in any case wher e t here is identifiable a set o f
t wo or mor e options/answers whi ch do not violate any rule binding
on the j udge or ot her chooser or interpreter.
19 And justice "is a matter of the right outcome of the political system: the
right distribution of goods, opportunities and resources" (404), while fairness
"is a matter of finding political procedures ... that distribute political power
in the r i g h t way" (164; also 404), and procedural due process "is a matter of
the r i g h t procedures ... that promise the r i g h t level of accuracy..." (165; also
405).
372 John Finn8
It is i mport ant t o not e that my denial that uni quel y correct, or best,
answers are available t o practical questions has not hi ng t o do wi t h
scepticism, internal or external. No r has i t anything t o do wi t h the
popular argument whi ch Dworki n, as we have seen, is rightly con-
cerned t o scorn and demolish, viz., that disagreement is endemic. (The
existence o f disagreement is a mer e fact about people, irrelevant t o
the merits o f any practical or ot her interpretative claim.) As Dwor ki n
says, "the wi se-soundi ng j udgement that no one interpretation could
be best must be earned and def ended like any ot her interpretive
claim" (237-38). 20 Dwor ki n hi msel f provides the l abour and materials
for such a defence.
Nor does my denial rest on the observat i on that none o f us has the
"superhuman" power s o f Dworki n' s Hercules. Hercules himself, no
mat t er how superhuman, coul d not justifiably claim uni que correct -
ness for his answer t o a hard case (as lawyers in sophisticated legal sys-
tems use that term). For in such a case, a claim t o have f ound the right
answer is senseless, in much the same way as it is senseless t o claim t o
have identified the English novel whi ch meet s the t wo criteria
"shortest and most romant i c" (or "funniest and best", or "most English
and most profound"). 21 Two i ncommensurabl e criteria o f j udgment
are proposed - in Dworki n' s theory, "fit" (with past political decisions)
and '[justifiability" (inherent substantive moral soundness). A hard case
is hard (not mer el y novel) when not onl y is there mor e than one
answer whi ch violates no applicable rule, but the answers thus avail-
able are ranked in different orders along each o f the available criteria
20 In the context, however, Dworkin seems to treat "no interpretation
could be best" as equivalent to: no interpretation is worthwhile because
none can be identified as bad. I endorse the sentence quoted only in its literal
meaning.
21 Of course, it is conceivable that a novel might happen to be both the
most romantic and the funniest. In any realistically rich field, such as the
English novel, this cannot be expected and the injunction to look for such a
novel is practically senseless.
O n Re a s o n a n d A u t h o r i t y i n Law' s E mp i r e 373
o f eval uat i on: b r e v i t y , h u mo u r , Engl i shness, f i t ( i nt egr i t y) , 22 r o ma n c e ,
,, " ,, - . . . . ,, 23
i n h e r e n t q u a h t y , p r o f u n d i t y , i n h e r e n t 3 u s u f i a b i l l t y , a nd so f or t h.
I n ear l i er wo r k s , D w o r k i n t r i e d t o he a d o f f t he p r o b l e m o f i n c o m-
me n s u r a b i l i t y o f cr i t er i a b y p r o p o s i n g a k i n d o f l exi cal or de r i ng: c a n-
di dat es ( t he or i e s o f l aw) mu s t f i t adequately, a nd o f t h o s e wh i c h sat i sfy
this " t h r e s h o l d " cr i t er i on, t hat wh i c h r anks hi ghe s t i n s oundne s s is " t he
best" e v e n t h o u g h it fits less we l l t ha n (an)ot her(s). 24 Thi s s o l u t i o n wa s
e mp t y , f o r he i de nt i f i e d n o cri t eri a, h o w e v e r s k e t c h y o r "i n p r i n -
ci pl e", f o r s pe c i f yi ng w h e n f i t is " a de qua t e " , i.e., f o r l oc a t i ng t h e t hr e s -
h o l d o f f i t b e y o n d wh i c h t h e c r i t e r i o n o f s oundne s s w o u l d pr evai l .
P r e s u ma b l y , candi dat es f o r " t he r i ght a n s we r " t o t h e q u e s t i o n " Wh e n
22 Cf.: "questions o f f i t surface again, because an i nt erpret at i on is pro tanto
mor e satisfactory i f it shows less damage t o integrity than its rival" (246-47).
Is it not surprising t o find "i nt egri t y" denot i ng bot h t he overall vi r t ue o f t he
whol e i nt erpret at i ve/ l egal enterprise and one o f t he "dimensions" o f that
enterprise.~ Dwor ki n' s r epl y seems t o say that because c ommi t me nt t o
i nt egri t y makes no sense wi t hout c ommi t me nt t o fairness and justice, ever y
legal ef f or t t o be fair and j ust "f l ows f r om [ an] initial c ommi t me nt t o
i nt egri t y" (263). No n sequitur.
23 Is it not fishy t o find ~ustifiability", an i nher ent l y f r a me wor k concept,
denot i ng one o f t he di mensi ons or criteria, whe n t he ot her criterion, "fit", it
i t sel f i nher ent l y evaluative, i.e., justificatory.~ "Best and shortest" is similarly
dubi ous, insofar as br evi t y is c o mmo n l y account ed a vi r t ue in novels. O f
course, even wh e n br evi t y is t reat ed as a me r e neut ral fact, t he quest f or t he
best and shortest will still be chimerical in any realistically rich and compl ex
field o f candidates.
24 See Taki ng Rights Seriously, pp. 340- 41 ( wher e Dwor ki n expressly
envisages t he onl y really interesting and genui ne f or m o f hard case or con-
test b e t we e n t heori es or i nt erpret at i ons o f t he l aw as a case whe r e t he rank
or der in t erms o f fit o f alternatives whi ch all fit "adequat el y" is di fferent
f r om t he rank or der in t erms o f soundness), 342, 360, also 122; Ronal d Dwor-
ki n and Contemporary Jurisprudence (1984), p. 272. In t he third o f these pas-
sages, Dwor ki n refers also, as i f it we r e equivalent, t o t he account gi ven in
'Is Ther e Real l y No Ri g h t Ans wer in Har d Cases.~' N e w York L. Rev. 53
(1978), n o w A Mat t er o f Principle (1985) at 143; but t here t he st or y is that
pol i t i cal / moral soundness comes i nt o pl ay if, and, it seems, onl y if, " t wo
justifications [sci l . theories o f law, interpretations, answers] pr ovi de
an equally good fit wi t h t he legal materials" (emphasis added).
374 John Finn#
is fit adequate.~" wo u l d t hems el ves be r anked i n t er ms b o t h o f fit and
o f soundness. An i nfi ni t e regress, o f t he vi ci ous sort wh i c h nul l i f y
p u r p o r t e d expl anat i ons, was wel l u n d e r way.
I n Law's Empire, Dwo r k i n abandons t he si mpl e pi ct ur e o f a lexical
or de r i ng b e t we e n t he di mens i ons o f fit and soundness. He stresses t hat
wi t hi n t he s econd di me ns i on "quest i ons o f fit surface again, because
an i nt er pr et at i on is pro tanto mo r e satisfactory i f it shows less damage
t o i nt egr i t y t han its rival" ( 246- 47) ; " e ve n wh e n an i nt er pr et at i on su>-
vi ves t he t hr es hol d r e qui r e me nt , any infelicities o f fit wi l l c o u n t
against it ... i n t he gener al bal ance o f pol i t i cal vi r t ues" (256; see also
257). Thi s is a gai n i n mor a l realism. But it strips away t he last vei l
hi di ng t he p r o b l e m o f t he i nc omme ns ur a bi l i t y o f t he cri t eri a
p r o p o s e d f or i dent i f yi ng a best or u n i q u e l y r i ght i nt er pr et at i on,
t h e o r y or answer. We are l eft wi t h t he me t a phor : "balance" - as i n
"t he gener al balance o f pol i t i cal vi rt ues" e mb o d i e d i n c o mp e t i n g
i nt er pr et at i ons. But i n t he absence o f any me t r i c wh i c h c oul d c o m-
me ns ur a t e t h e di f f er ent criteria (t he di mens i ons o f fit and
i nhe r e nt mor al mer i t ) , t he i ns t r uct i on t o "balance" (or, earlier, t o
"wei gh") can l egi t i mat el y me a n no mo r e t han bear i n mi nd, c o n -
sci ent i ousl y, all t he r el evant factors, and choose.
It is a f eat ur e o f t he p h e n o me n o l o g y o f choi ce t hat aft er one has
chosen, t he factors f a vour i ng t he chos en al t er nat i ve wi l l usual l y s eem
t o o u t we i g h or over bal ance t hose f a vour i ng t he r ej ect ed
ahernative(s).2 s Th e chos en al t er nat i ve wi l l s eem t o have a s upr emacy,
a uni que rightnessl Bu t t he t r u t h is t hat t he choi ce was n o t guided by
"t he r i ght answer", b u t r at her established it i n t he sent i ment s, t he di spo-
sitions, o f t he chooser. Wh e n t he choi ce is t hat o f t he maj or i t y i n t he
hi ghest r el evant appeal c our t (a me r e br ut e fact), t he uni que r i ght ness
o f t he ans wer is est abl i shed n o t onl y f or t he at t i t ude o f t hose wh o
have chos en it, b u t also f o r t he legal syst em or c o mmu n i t y f or wh i c h
i t has t hus be e n aut hor i t at i vel y chos en and laid d o wn as Or i n a rule.
I n t he real wor l d, o f course, t he p r o b l e m o f c omme ns ur a bi l i t y is
mu c h mo r e i nt ense t han I have por t r a ye d it; f or t her e is n o t j us t one
2s See Germain Grisez, "Against Consequentialism", Am.J.Jurisp. 23 (1978):
21- 72 at 46-47.
On Reason and Authority in Law's Empi re 375
dimension o f soundness or substantive political justifiability, but many
i ncommensurabl e dimensions. Thei r i ncommensurabi l i t y is pr of ound-
ly i mport ant for ethics and political, not mer el y for legal, adjudication.
It has not been sufficiently noted, in debate on Dworki n' s work, how
t hor oughl y he shares utilitarianism's deepest and most fl awed assump-
tion: t he assumption o f the commensurabi l i t y o f basic goods and thus
of the states of affairs whi ch instantiate them. And this assumption is
not marginal to his t heor y o f law, as his denial o f absolute rights, 26
t hough important, can perhaps be said to be marginal; it is o f its
essence.
In sum: t here are countless ways o f going wr ong in a hard case; t he
j udgment that Mrs. McLoughl i n and her legal advisers should be
summari l y execut ed and their pr oper t y distributed to t he defendant
can head a list o f possible but erroneous j udgment s whi ch has no end.
A case is hard, in the sense whi ch interests lawyers, when t here is
mor e than one right, i.e., not wrong, answer. Dworki n' s discussion o f
the t wo dimensions has made this clearer than ever.
The objection I have made in this section is not, I think, con-
front ed in the book. Instead, Dwor ki n imagines and responds to some
related objections whi ch are easy to handle because exaggerat ed and
ill-focussed. "There can be no best interpretation when mor e than
one survives [the] test [ of fit]"; t herefore Hercules' claim to be
enforci ng the law is fraudulent, or grammatically wrong, or confusing
(261,262). Dworki n' s reply? First, Hercules' claim could be grammat i -
cally wr ong onl y i f t he semantic sting wer e t rut h rather than error.
That we should accept. Second, Hercules' claim woul d be fraudul ent
onl y i f he did not share Dworki n' s vi ew that the j udgment s made by
each j udge in a hard case are i nt ended to state what the law is, not
mer el y what it should now become. That, too, we should accept;
deception is not an issue in jurisprudence.
26 Taking Rights Seriously, p. 354. On incommensurability, see Raz, The
Morality of Freedom (1986), ch.13; Finnis, Natural Law and Natural Rights, pp.
112-18 (and see pp. 223-26 on absolute rights); Fundamentals of Ethics, pp,
86-93; Finnis, Grisez and Boyle, Nuclear Deterrence, Morality and Realism
(1987), pp. 241-54, 267-70, 286-87 (and see pp. 286-87 on moral absolutes).
376 John Fi nn~
But to t he charge that Hercules' claim is confusing, Dwor ki n
makes no reply. And the claim /s confusing (and confused), precisely
because (for the reasons I have been setting out, and not for the bad,
sceptical, or external reasons whi ch Dwor ki n envisages as objections),
in a hard case, in legal systems like ours, t here will be no one answer
which, because uni quel y right, should be described as "the law gover n-
ing t he case". Mor eover (t hough t he descriptive sociology o f all this is
a secondary issue), Hercules' claim obscures t he reality that conscienti-
ous judges do acknowl edge that t hey are maki ng new law, breaking
new gr ound - interstitially, no doubt, and usually by a "devel opment "
whi ch respects and makes use of existing legal concepts and nor ma-
tive resources wi t h an exclusiveness forei gn to the legislature's
vent ures in l aw-maki ng - but for all that, by choice, a new
commi t ment , not mer e discovery and application. To describe a con-
scientious j udgment in a hard case as legal rather than moral is not
wrong, for such a j udgment will be bot h constrained and shaped by
existing law in a way quite unlike any ot her moral j udgment . 27 But to
deny t he difference bet ween application and devel opment , easy cases
and hard cases in t he sense I have specified, is indeed misleading.
Dwor ki n is right to insist that the answers to easy cases, too, pr e-
suppose conceptions of fairness and justice (354), and in that sense he is
right to consider easy cases "onl y special cases o f hard ones" (266). But
he has no valid ar gument against t he commonsense o f lawyers and
others who t hi nk that in some cases t here is onl y one answer whi ch is
not wrong, while in ot her (not i nfrequent ) cases t here is mor e than
one such answer, and reason itself (whet her legal or even moral) lacks
t he resources to identify one as best.
V.
A pri mary and perennial source of t he need for aut hori t y (including
what Dwor ki n calls "convention") is t he rich variety o f eligible - i.e.,
27 But, unlike Raz and Dworkin, I don't care whether these judgments are
called judgments of law or not: see Natural Law and Natural Rights, p. 290.
On Reason and Aut hori t y in Law's Empi re 377
not wr ong - but incompatible answers to issues o f choice 28 in social
life. 29 I have already observed, in section I above, how Dworki n' s
attention is di vert ed f r om t he constituent and legislative moment s o f
law's "practice". Similarly, it is di vert ed f r om t he question o f political
and legal authority' s ultimate justification and legitimacy. We come
upon law hal f-way t hr ough the story; t he "most abstract and
fundament al poi nt o f legal practice is to guide and constrain the
power o f gover nment in t he fol l owi ng way..." (93). 30 But why
acknowl edge the "power" o f "gover nment " at al l ? For what
should a rul er be exercising his power?
The book does offer a defence o f t he legitimacy o f political
authority. But it is ver y thirr It consists centrally o f t he claim that
denyi ng political legitimacy (Dworkin' s t er m for what I woul d call
justified authority) entails denying, implausibly, the legitimacy o f all
ot her associative obligations, i.e., t he obligations whi ch arise f r om
family, friendship and ot her fraternal relationships (see 207). A pri n-
cipal weakness o f this argument , as devel oped in t he book, is that
these ot her fraternal associations are characteristically f ounded upon
shared interest in substantive human goods, whereas t he political
communi t y, so far as Dwor ki n invites us to envisage it, eschews any
official concern - certainly any imposition o f obligations on the basis
28 It is hazardous to call such issues "problems", a phrase which seems to
suggest that the major issues of personal or social choice should be under-
stood on the analogy of mathematical or technical problems which com-
monly do have a uniquely correct or best solution; the tendency to see life
as a series o f problems is doing major damage to Western morality and civili-
zation.
29 See Natural Law and Natural Rights, pp. 231-33. Of course, there are other
primary sources of the need for authority: the transaction costs of negotia-
tion and deliberation; selfishness, malice, etc.
3o Sometimes Dworkin speaks as i f "i f l aw exists it provides a justification f or
the use of collective power against individual citizens or groups" (109,
emphasis added) and says that "the ultimate point of law is to license andjusti-
. ~ state coercion..." (127, emphasis added). But the initial statement (at 93) is
truer to his account, which is of law as a constraint upon the exercise of
authority.
378 John Finnis
o f such concern - f o r substantive human goods such as health,
knowl edge, beauty, the transmission o f human life and culture, and so
forth. In this respect, the book, whi l e it differs f r om Dworki n' s earlier
books by abstaining f r om explicitly (but cf. 274) describing itself as
"liberal", retains the salient characteristic o f Dworki ni an liberalism: it
portrays j ust i fi ed politics, and thus law, as neutral about what is truly
wor t hwhi l e and what worthless i n human life. 31 It lacks any
articulated concept o f the c ommon good, an ensembl e o f conditions
whi ch favour the human flourishing (including rights) o f all member s
o f the communi t y, and whi ch ought t o be pr omot ed as wel l as
respected by those in authority, and for the sake o f whi ch others
acknowl edge that authority.
The ot her principal weakness in Dworki n' s account o f legitimacy
or aut hori t y is that his discussion o f the pr obl em o f securing any
desirable degree o f co-ordination o f human action in communi t y is
buri ed in his pol emi c against "conventionalism" (see 144-50). No w I
have n o br i ef for (or against) conventionalism, an imaginary
doctrine 32 whi ch Dwor ki n envisages as the substantive political/juris-
prudential count erpart (432) to the semantic t heor y he calls
"positivism".33 I will, however , observe in passing that his critique o f
31 The unwillingness to speak of goods or harms is remarkably far-reaching.
Thus, in the discussion of negligence, where we would expect a reference to
harms we find only a reference to rights: see 293; cf. 307, 309, where, at last,
the categories "fundamental interests" and "damage - e.g. threats to life" are
acknowledged.
32 Conventionalism, t hough imaginary, is presented in loaded terms: see 95,
135.
33 Dworkin admits that perhaps no one has ever subscribed to conven-
tionalism precisely as he describes it (94). But I doubt whether anyone
significant subscribes to anything even resembling Dworkin's conventional-
ism, the key tenet of which is that "the past yields no rights tenable in court,
except as these are made uncontroversial by what everyone knows and
expects" (118). To claim that "if convention is silent there is no law" (118) is
a far cry from asserting that the past has no justificatory "power over the
present" of a kind highly relevant to the judge's proper exercise of his
judicial power and in that sense "tenable in court" - an assertion few indeed
have made, even those who have unwisely spoken of judicial
"discretion" when the law runs out.
On Reason and Authority in La w' s E mp i r e 379
c o n v e n t i o n a l i s m ( 1 4 7 - 5 0 ) is v e r y we a k. F o r he s i mp l y enr ol l s " p r a g -
ma t i s m" t o ma k e t he r es pons e, a nd p u r p o r t s t o e n d o r s e a p r a g ma t i s t
cl ai m t ha t p r a g ma t i s m is m o r e " e f f i c i e nt " at c o o r d i n a t i n g ci t i zens'
act i ons b e c a u s e "i t is s o mu c h mo r e a da pt i ve " (149). H e h i ms e l f
wi l l r i g h t l y l at er ar gue, i n e f f e c t , t hat p r a g ma t i s m is u n wa r r a n t e d i n
t a ki ng e f f i c i e n c y as t he c r i t e r i o n o r mo d e l o f pol i t i cal j us t i f i cat i on.
Bu t m y p r e s e n t p o i n t is s i mp l y this: Dwo r k i n ' s t h e o r y o f l aw, a nd
o f l aw' s a u t h o r i t y o r l e gi t i ma c y, is we a k e n e d b y his f a i l ur e f r a n k l y t o
a c k n o wl e d g e t he case, n o t m e r e l y f o r ma k i n g "past pol i t i cs de c i s i ve o f
p r e s e n t r i ght s " i n a c c o r d a n c e wi t h an i deal a nd v i r t u e o f " i nt e gr i t y" ,
b u t f o r c r e a t i ng a nd a p p l y i n g rules wh o s e l egal a n d mo r a l a u t h o r i t y is
d i r e c t l y a nd s i mp l y as cr i bed t o t he i r source, a u t h o r i t a t i v e e n a c t me n t o r
j udi c i a l a d o p t i o n o r s o me o t h e r f o r m o f " c o n v e n t i o n " . 34 I n a t t e n d i n g
t o t h e f act o f c ons e ns us - so f u n d a me n t a l t o t he e xi s t e nc e a nd
w o r t h 35 o f l egal s ys t ems , a nd o f a c o mmu n i t y ' s j u d i c i a r y - D w o r k i n
34 Dwor ki n' s t ext leaves me in d o u b t about whe t he r he takes t he c onve n-
tions wi t h whi ch "convent i onal i sm" is concer ned t o be quasi-constitutional
convent i ons defining br oad institutions such as legislation, Congress,
precedent , etc., or whe t he r he takes t hem t o include also particular institu-
tions and rules established under t hose constitutional convent i ons. Muc h in
t he t ext suggests t he f or mer , but ot her passages are consistent wi t h t hel at t er ,
and at least one seems t o requi re it: "Suppose t her e is a convent i on in s ome
legal c o mmu n i t y that j udges must gi ve bot h sides an equal oppor t uni t y t o
state their case" (123).
3s Ma ny will t hi nk that Dwor ki n' s emphasis on consi st ency wi t h t he past
(passim), and on demandi ng that a principle gi ven ef f ect t o in one part o f l aw
shoul d " f l ow t hr oughout t he scheme" o f t he l aw (436), shoul d have been
balanced b y a clear r ecogni t i on (clearer and earlier than 401) o f t he wo r t h o f
havi ng clear rules (and loyal adherence t o t hem) f or securing that litigants
are t reat ed uni f or ml y at a gi ven time, and so do not suffer mor e than is
i nevi t abl e f r om t he excruci at i ng sense that i f their case had been tried on
the same day by t he j udge next door it woul d pr obabl y have been det er -
mi ned di fferent l y (e.g. because each j udge is at t empt i ng t h e impossible
and al l -t oo creative i nt erpret at i ve task envisaged f or hi m b y Dwor ki n,
instead o f applying t he rules). Is it sympt omat i c that t he b o o k contains
some bi g mistakes in r epor t i ng precedent s t o whi ch it refers, (not abl y
(2) Attorney-General v. Jonathan Cape Ltd [1976] Q.B. 752; and (185) Roe
v. Wade 410 U.S. 113); and s ome implausibly dismissive opinions about
380 J o h n F i n n ~
tries to make us choose bet ween basing that consensus on convent i on
- whi ch means treating legal propositions as true ' just because ever y-
o n e else accepts t hem" (136) - or on "consensus o f i ndependent con-
viction", "the way we all accept that it is wr ong to t ort ure babies or
to convict people we know are innocent" (136). This disjunction
bet ween convent i on and consensus o f conviction, so defined, is
ent i rel y inadequate to explain and justify legal authority, institu-
tions and obligation. We should refuse to make this choice. But i f we
wer e forced to choose, a sound natural law t heor y woul d have no
hesitation in tracing t he legal and thus t he moral aut hori t y o f most o f
t he law's rules and institutions (the establishment, t hough not t he
content, of whi ch is urgent l y requi red for t he sake o f fairness and t he
ot her component s o f t he c ommon good) not to consensus of
i ndependent conviction but to convent i on. 36
University College,
Oxford OX1 4BH,
England
the integrity (as distinct from the justifiability in principle) of certain rules,
such as the one giving immunity in tort to barristers in court (cf. 220, 401),
or forbidding the importation of slaves only after a 20-year run-off period
(184)? The horizon is ordinarily not the best focus for the judicial gaze.
36 See Nat ural L a w and Nat ural Rights, 281-90; 'The Authority of Law in the
Predicament of Contemporary Social Theory', Notre Da me Journal o f Law,
Ethics and Public Policy 1 (1984) 115-37.