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Ronald Dworkin was born in 1931 in Providence, Rhode Island, United States. He studied atHarvard University and at Magdalen College, Oxford, where he was a Rhodes Scholar and a student of Sir Rupert Cross. After completing his final year's exams at Oxford, the examiners were so impressed with his script that the Chair of Jurisprudence was summoned to read it.1 Dworkin then attended Harvard Law School and subsequently clerked for Judge Learned Hand of the United States Court of Appeals for the Second Circuit.2 After working at Sullivan & Cromwell, a prominent law firm in New York City, Dworkin became a Professor of Law at Yale University, where he became the holder of the Wesley N. Hohfeld Chair of Jurisprudence. In 1969, Dworkin was appointed to the Chair of Jurisprudence at Oxford, a position in which he succeeded H. L. A. Hart, and elected Fellow of University College, Oxford. After retiring from Oxford, Dworkin became the Quain Professor of Jurisprudence at University College London, where he subsequently became the Bentham Professor of Jurisprudence. During the early portion of Dworkin's career, social movements such as those connected with civil rights, women's equality, the environment, and the Vietnam War, confronted philosophers with the task of reassessing liberalism. Influential radicals, including Herbert Marcuse, held liberalism responsible for the injustices of the era. However, other philosophers sought to reformulate and defend liberal ideas. John Rawls was the leading figure in the reformulation of liberalism, but next to Rawls, no thinker writing in English has played a larger role than Dworkin. His work is informed by the conviction that the moral task of citizens and public officials is not to jettison liberal democracy but to make their society a more faithful realization of liberal ideals. Dworkin argues that legal reasoning has an ineliminable moral dimension and defends a form of liberalism that regards the right to equality as the sovereign political principle. His argument about legal reasoning rejects the positivist view that the existence of laws depends ultimately on social facts that can be ascertained without resort to moral judgments. It also opposes those natural law theories that hold the legal validity of a norm to depend on its consistency with substantive justice. Dworkin's defense of liberalism rejects the radical view
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Then, H.L.A. Hart. Judge Hand would later call Dworkin the finest clerk he ever employed, and Dworkin would recall Judge Hand as an enormously influential mentor.

that liberal principles are complicit in the perpetuation of oppression. It opposes as well the conservative view that liberal ideas have a corrupting influence on society. Writing as a public intellectual, Dworkin has contributed to controversies over civil disobedience, free speech, campaign financing, affirmative action, physician-assisted suicide, abortion, and civil liberties. He has also addressed debates over constitutional interpretation in the United States, rejecting theories resting on the framer's intent and advocating interpretations informed by moral principles that protect individual rights. The most widely discussed thesis in jurisprudence for a decade was Dworkin's rights thesis, defended in Taking Rights Seriously(1977). The thesis holds that, in almost all legal cases, one side has the legal right to win. Dworkin criticizes H. L. A. Hart's positivist classic The Concept of Law (1961) for claiming that in hard cases, where legal rules do not determine which side should win, judges have discretion to render decisions as social utility dictates. Dworkin argues that Hart neglects the moral principles that underlie legal rules and constitute part of the law. Such principles help to determine the legal rights of persons whereas rights function as "trumps" that an individual holds against the government and its efforts to promote utility or some other societal good at the individual's expense. Dworkin imagines a superhuman judge "Hercules," who knows all the best moral principles underlying the settled law. Though more limited in their cognitive capacities, human judges should, and characteristically do, seek out those principles that bear on the cases they decide. The judiciary plays an important role in all legal system. But the question is: How does a judge decides a case? If a case is brought to the court, the judge cannot refuse to adjudicate it on the basis that there is no precedent or the lawyer cannot cite any authority on the point of law.In this connection, Dworkin observed that there is a right answer to each case 3. Dworkins Right Thesis involves the general claim that within legal practice and a proper understanding of the nature of law, rights are more fundamental than rules. This is the opposite claim to most legal positivists. Rights are trumps in Dworkins Theory, which means that if there is any right which comes into conflict with any policy, the right must prevail.

Taking Rights Seriously. Cambridge, MA: Harvard University Press, 1977.


2.1 Rule of law
The law is to be treated as a seamless web in which there always is a right answer. Judicial decisions are characteristically generated by principles and enforces existing political rights, so that litigants are entitled to the judges best judgment about what their rights are. To Dworkin, different judge may come to different conclusions but he insists that judges may not rely on their own political views but only on their beliefs in the soundness of those convictions. It has long been received opinion that judges filled in the gaps left by rules by using their discretion. HLA Hart has written, That the rule-making authority must exercise discretion Hart saw rules as open-textured. Austin saw no problem in this. It is the thesis of Dworkin that judicial discretion in what Dworkin calls its Strong Sense does not exist. Dworkin rejects the view regarding judicial discretion. The judges often are heard to say: We find the law to be this, and they say they discover the law. They do not profess the law to be their own discretion. For Dworkin, judges are always constrained by the law. In every adjudication of the so-called hard-cases there are controlling standards which a judge is obligated to follow. Dworkin objects to judges acting as deputy legislators for 2 reasons: (i) Separation of Power: It offends the democratic ideal that a community should be governed by elected officials answerable to the electorate. The judge not being elected must not substitute his own will as against the legislature. (In Lord Simmons words, its a naked usurpation of legislative functions4). (ii) Retrospectivity & The Rule of Law5: Dworkins 2nd objection to judicial originality is that if a judge makes a new law and applies it retrospectively in the case before him, then the losing party will be punished, not because he has violated some duty he had, but rather a new duty created after the event.6 If judges are to make law, as what Hart said7, that would be in contradiction to the theory of separation of power. If judges were to make law in hard cases, they would be applying the law retrospectively; thats against the rule of law. Citizen has a complaint that even though he was not surprised by retrospective legislation, there was no liability at that time he did the act.
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Lord Simmons Ronald Dworkin I edited by Arthur Ripstein. Cambridge University Press 1 st Edn.2007 6 Taking Rights Seriously. Cambridge, MA: Harvard University Press, 1977. 7 The Concept of Law, H.L.A. Hart

If the citizen is being made retrospectively liable, it is because there was no law at that time that made him liable that places a special duty upon the legislature to justify retrospective legislation.

2.2 Judicial Descretion

For legal positivism, the law is the law posited. So what is the position in a case where a rule has not been posited? Take a skateboard case. The actual legal position is likely to focus on language: Is a skateboard a vehicle for the purpose of the by-law which prohibits vehicles to be used in Hyde Park? The rule does not extend to determine the question of skateboards. Thus there is a gap in the law. We can simply say that because there is no mention, they are permitted. Both sides cannot refer to decided case-laws. The prosecution might say it is included in the mischief of the Act. Dworkin wishes us to consider carefully what lawyers are actually doing as a matter of legal principle in hard cases. If both sets of lawyers are serious, both sides believe that they are correct. Both sides actually believe that there is an answer. Why then go to the court if you do not believe that your side is correct, that the law Is as you claim? Austinian positivism is clear when the rules ran out the judge operate as a deputy legislator filling in the gaps. To Austin, rules do not have extensionality. However, Neil MacCommick in his Legal Rights and Legal Reasoning said that we can extend rules by analogy but this will extend positivism in a way which goes against the essential core: its clarity. Austinwas interested in the absolute clarity of law. If for example, a judge decides that skateboards are included in the definition and are banned from Hyde Park, he adds to the wordings of the Statute he comes to a posited decision. But the judge has now extended the law and this binds the future. Dworkin is not satisfied with this model8. The reasons are: Discretion is not free-standing but part of a process. Discretion, like the hole in the doughnut, does not exist except as an area left open by a surrounding belt of restriction. Discretion is not outside the law but internal to the law. If judicial decision making was unfettered discretion we would have to say that it is no special role for judges beyond being a political and administrative official. If judges were unfettered law makers they would have to be democratically elected.9

RONALD DWORKIN, Is There Really No Right Answer in Hard Cases?, in A MATTER OF PRINCIPLE 119, 119 (1985). 9 See hard cases TRS,1977; Pg 81-131.

If judges simply exercised discretion and make new rules they would be changing the rules of the game. Each time they do so they also commit a fraud on the litigants. Dworkin has an alternative theory10. The first step is to make a distinction between strong and weak discretion. Strong discretion is where the officials are bound by pre-existing standards set by the authority. Weak discretion is when the standard cannot be applied in a mechanical way. Theres a need to evaluate what the standard means in a new case. In weak discretion, there is no gap in the law. Strong discretion does not exist for judges. Weak discretion is part of the judicial role. The discretion is controlled and there are no gaps in the law. Hart says that judges exercise strong discretion in hard cases. But that seems to equate: Rules + Discretion = New Rules. In order to understand Dworkins criticism of Hart, we need to understand the distinction drawn by Dworkin regarding Rules and Principles, and Constructive Interpretation as propounded by Dworkin.


Ronald Dworkin, A matter of principle (1985).


Ronald Dworkins so-called third theory of law is best understood as a response to legal positivism, which is essentially constituted by three theoretical commitments: the Social Fact Thesis, the Conventionality Thesis, and the Separability Thesis. The Social Fact Thesis asserts it is a necessary truth that legal validity is ultimately a function of certain kinds of social facts; the idea here is that what ultimately explains the validity of a law is the presence of certain social facts, especially formal promulgation by a legislature. The Conventionality Thesis emphasizes laws conventional nature, claiming that the social facts giving rise to legal validity are authoritative in virtue of a social convention. On this view, the criteria that determine whether or not any given norm counts as a legal norm are binding because of an implicit or explicit agreement among officials. Thus, for example, the U.S. Constitution is authoritative in virtue of the conventional fact that it was formally ratified by all fifty states. The Separability Thesis, at the most general level, simply denies naturalisms Overlap Thesis; according to the Separability Thesis, there is no conceptual overlap between the notions of law and morality. As Hart more narrowly construes it, the Separability Thesis is just the simple contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so 11. Dworkin rejects positivisms Social Fact Thesis on the ground that there are some legal standards the authority of which cannot be explained in terms of social facts. In deciding hard cases, for example, judges often invoke moral principles that Dworkin believes do not derive their legal authority from the social criteria of legality contained in a rule of recognition12. In Riggs v. Palmer13, for example, the court considered the question of whether a murderer could take under the will of his victim. At the time the case was decided, neither the statutes nor the case law governing wills expressly prohibited a murderer from taking under his victims will. Despite this, the court declined to award the defendant his gift under the will on the ground that it would be wrong to allow him to profit from such a grievous wrong. On Dworkins view, the court decided the case by citing the principle that no man may profit
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H.L.A. Hart, The Concept of Law, Second Edition (Oxford: Clarendon Press, 1994) Dworkin TRS, 1977, Pg.40. 13 115 N.Y. 506 (1889)

from his own wrong as a background standard against which to read the statute of wills and in this way justified a new interpretation of that statute14. On Dworkins view, the Riggs court was not just reaching beyond the law to extralegal standards when it considered this principle. For the Riggs judges would rightfully have been criticized had they failed to consider this principle; if it were merely an extralegal standard, there would be no rightful grounds to criticize a failure to consider it15. Accordingly, Dworkin concludes that the best explanation for the propriety of such criticism is that principles are part of the law. Further, Dworkin maintains that the legal authority of standards like the Riggs principle cannot derive from promulgation in accordance with purely formal requirements: [e]ven though principles draw support from the official acts of legal institutions, they do not have a simple or direct enough connection with these acts to frame that connection in terms of criteria specified by some ultimate master rule of recognition16. On Dworkins view, the legal authority of the Riggs principle can be explained wholly in terms of its content. The Riggs principle was binding, in part, because it is a requirement of fundamental fairness that figures into the best moral justification for a societys legal practices considered as a whole. A moral principle is legally authoritative, according to Dworkin, insofar as it maximally conduces to the best moral justification for a societys legal practices considered as a whole. Dworkin believes that a legal principle maximally contributes to such a justification if and only if it satisfies two conditions: (1) the principle coheres with existing legal materials; and (2) the principle is the most morally attractive standard that satisfies (1). The correct legal principle is the one that makes the law the moral best it can be. Accordingly, on Dworkins view, adjudication is and should be interpretive: [J]udges should decide hard cases by interpreting the political structure of their community in the following, perhaps special way: by trying to find the best justification they can find, in principles of political morality, for the structure as a whole, from the most profound constitutional rules and arrangements to the details of, for example, the private law of tort or contract.

Dworkin Taking Rights Seriously. Cambridge, MA: Harvard University Press, 1977;Pg.29 Ibid ,Pg 35. 16 Ibid, Pg 41.
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4.1 Principles and Policies
Theories of adjudication have become more sophisticated, but the most popular theories still put judging in the shade of legislation. The main outlines of this story are familiar. Judges should apply the law that the other institutions have made; they should not make new law. That is the ideal, but for different reasons it cannot be realized fully in practice. Statutes and common law rules are often vague and must be interpreted before they can be applied to novel cases. Some cases, moreover, raise issues so novel that they cannot be decided even by stretching or reinterpreting existing rules. So judges must sometimes make new law, either covertly or explicitly. But when they do, they should act as deputy to the appropriate legislature, enacting the law that they suppose the legislature would enact if seized of the problem. That is perfectly familiar, but there is buried in this common story a further level of subordination not always noticed. When judges make law, so the expectation runs, they will act not only as deputy to the legislature but as deputy legislature. They will make law in response to evidence and arguments of the same character as would move the superior institution if it were acting on its own. This is a deeper level of subordination, because it makes any understanding of what judges do in hard cases parasitic on a prior understanding of what legislators do all the time. This deeper subordination is thus conceptual as well as political. In, fact however, judges neither should be nor are deputy legislators, and the familiar assumption, that when they go beyond political decisions already made by someone else they are legislating, is misleading. It misses the importance of a fundamental distinction within political theory, which I shall now introduce in a crude form. This is the distinction between arguments of principle on the one hand and arguments of the policy on another. Arguments on policy justify a political decision by showing that the decision advances or protects some collective goal of the community as a whole. The arguments in favour of a subsidy for aircraft manufacturers that the subsidy will protect national defence, is an argument of policy. Arguments of principle justify a political decision by showing that the decision respects or secures some individual or group right. The argument in favour of antidiscrimination statutes, that a minority has a right to equal respect and concern, is an argument of principle. These two sorts of argument do not exhaust political argument.

Sometimes, for example, a political decision like the decision to allow extra income tax exemptions for the blind, may be defended as an act of public generosity or virtue rather on grounds of either policy or principle. But policy and principle are the major grounds of political justification. Dworkin added that when case at hand is a hard case, when no settled rule dictates a decision either way, then it might seem that a proper decision could be generated by either policy or principle. Consider, for example, the problem of the recent Spartan Steel Case17 . The defendants employees had broken an electric cable belonging to a power company that supplied power to the plaintiff, and the plaintiffs factory was shut down while the cable was repaired. The court had to decide whether to allow the plaintiff recovery for economic loss following negligent damage to someone elses property. It might have proceeded to its decision by asking either whether a firm in the position of the plaintiff had a right to recovery, which is a matter of principle, or whether it would be economically wise to distribute the liability for accidents in the way the plaintiff suggested, which is a matter of policy.

4.2 Jurisprudence
We have, therefore, in these political considerations, strong reason to consider more carefully whether judicial arguments cannot be understood, even in hard cases, as arguments, generated by principle. We have an additional reason in a familiar problem of jurisprudence .Lawyers believe that when judges make new law their decision are constrained by legal traditions but are nevertheless original and personal. Novel decisions, it is said, reflect a judges own political morality, but also reflect the morality that is embedded in the traditions of the common law, which might well be different. This is, of course, only law school rhetoric, but it nevertheless poses the problem of explaining how these different contributions to the decision of a hard case are to be identified and reconciled. One popular solution relies on a spatial image; it says that the traditions of the common law contract the area of a judges discretion to rely upon his personal morality, but do not entirely eliminate that area. But this answer is unsatisfactory on two grounds. First, it does not elucidate what is at best a provocative metaphor, which is that some morality is embedded in a mass of particular decisions other judges have reached in the past. Second, it suggests a plainly inadequate phenomenological account of the judicial decision .Judges do not decide

[1973] Q.B. 27

hard cases in two stages, first checking to see where the institutional constraints end, and then setting the books aside to stride off on their own. The institutional constraints they sense are pervasive and endure to the decision itself. We therefore need an account of the interaction of personal and institutional morality that is less metaphorical and explains more successfully that pervasive interaction. The rights thesis, that judicial decisions enforce existing political rights, suggests an explanation that is more successful on both counts. If the thesis holds, then institutional history acts not as a constraint on the political judgement of the judges but as an ingredient of that judgement, because institutional history is part of the background that any plausible judgement about the rights of an individual must accommodate. Political rights are creatures of both history and morality: what an individual entitled to have, in civil society, depends upon both the practice and the justice of its political institutions. So the supposed tension between judicial originality and institutional history is dissolve: judges must make fresh judgements about the rights of the parties who come before them but, these political rights reflect , rather than oppose , political decisions of the past. When a judge chooses between the rule established in precedent and some new rule thought to be fairer, he does not choose between history and justice. He rather makes a judgement that requires some compromise between considerations that ordinarily combine in any calculation of political right, but here compete. The rights thesis therefore provides a more satisfactory explanation of how judges use precedent in hard cases than the explanation provided by any theory that gives a more prominent place to policy. Judges, like all political officials, are subjects to the doctrine of political responsibility. This doctrine states, in its most general form, that political officials must make only such political decisions as they can justify within a political theory that also justifies the other decisions they propose to make. The doctrine seems innocuous in this general form; but it does, even in this form, condemn a style of political administration that might be called following Rawls, intuitionistic.

It condemns the practice of making

decisions that seems right in isolation, but cannot be brought within some comprehensive theory of general principles and policies that is consistent with other decisions also thought right. Suppose a Congressman votes to prohibit abortion, on the ground that human life in any form is sacred, but then votes to permit the parents of babies born deformed to withhold medical treatment that will keep such babies alive. He might say that he feels some


See A Theory of Justice, Chap.10

difference, but the principle of responsibility, strictly applied, will not allow him these two votes unless he can incorporate the difference within some general political theory he sincerely holds. The doctrine demands, we might say, articulate consistency. But this demand is relatively weak when policies are in play. Policies are aggregative in their influence on political decisions and it need not be part of a responsible strategy for reaching a collective goal that individuals be treated alike. It does not follow from the doctrine of responsibility, therefore, that if legislature awards a subsidy to one manufacturer one month it must award a subsidy to another manufacturer the next. In the case of principles, however, the doctrine insists on distributional consistency from one case to the next, because it does not allow for the idea of strategy that might be better served by unequal distribution of the benefit in question. If an official, for example, believes the sexual liberty of sort is a right of individuals, then he must protect the liberty in a way that distributes the benefit reasonably equally over the class of those whom he supposes to have the right. If he allows one couple to use contraceptives on the ground that this right would otherwise be invaded, then he must, so long as he does not recant that earlier decision, allows the next couple the same liberty. He cannot say that the first decision gave the community just the amount of sexual liberty it needed, so that no more is required at the time of the second. Judicial decisions are political decisions, at least in broad sense that attracts the doctrine of political responsibility. If the rights thesis holds, then the distinction just made would account, at least in a very general way, for the special concern that judges show both precedents and hypothetical examples .An argument of principle can supply a justification for a particular decision, under the doctrine of responsibility, only if the principle cited can be shown to be consistent with the earlier decisions not recanted, and with decisions that the institution is prepared to make in the hypothetical circumstances. That is hardly surprising, but the argument would not hold if judges based their decisions on arguments of policy. They would be free to say that some policy might be adequately served by serving it in the case at bar, providing, for example, just the right subsidy to some troubled industry, so that neither

earlier decisions nor hypothetical future decisions need be understood as serving the same policy. Consistency here, of course, means consistency in the applications of the principle relied upon, not merely in the application of the particular rule announced in the name of that principle. If, for example, the principle that no one has the duty to make good remote or unexpected losses flowing from his negligence is relief upon to justify a decision for the

defendant in Spartan Steel, then it must be shown that the rule laid down in other cases, which allows recovery for negligent misstatements, is consistent with that principle; not merely that the rule about negligent misstatements is a different rule from the rule in Spartan Steel.

The proposition that judge have a weak discretion and that they are to find the right answer from the principles is unsustainable.19 Critics such as Greenawalt have argues that the denial of discretion is wrong and is inconsistent with our ordinary understanding of judicial responsibilities for opinions. To suggest that judges have discretion is not to imply that they have license to do what they will. The institution of judging offers the judge choice only within the constraints of judgment. Greenawalt argues that there are also examples which contradict the right theories. For example, in a case of nuisance, the judge may consider the effect of his discretion on the community before accepting the right of the claimant. Such cases indicate that judges do decide on policies while determining the rights of the individual. Dworkin replies that this is not a case of policy but a case where the judge compromises competing rights. Other critics also criticize Dworkin on the ground that the right thesis cannot be demonstrated that there is only one right answer to a question. Supposing two judges are to decide whether Elmer is entitled to inherit his grandfathers property, they may answer this question differently from each other and yet claim that each answer is the right answer. How do we demonstrate that there is only one right answer to a problem. Dworkins answer is that it is insufficient to say that there can be no right answer just because they cannot be proved or demonstrated. Hart criticizes Dworkins right answer thesis as flawed and vulnerable to criticisms.20 Peter Fitzpatrick called Dworkins strategy to give systematic unity to the legal system and legal practice Myth Making. To his critics, Dworkin continues to build his myth and noble dream. While he began his writing in the early 1970s, Dworkins best known work, Laws Empire was published in 1986. To Dworkins supporters, he is offering an uplifting image of law. Dworkin challenges us to renew our faith in the law by recasting the lenses through which we view the role of law and legal practice. In Dworkins word: We live in and by the law it makes us what we are . Stephen Guest says, Dworkins Thesis is not his own making but it has been ascribed to him. It can be said that what Dworkin meant to say was that there is a possibility of finding the best answer.

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Assertion of Mc Commick. Hart described Dworkin as a Noble Dreamer.

On Dworkins view, while the legislature may legitimately enact laws that are justified by arguments of policy, courts may not pursue such arguments in deciding cases. For a consequentialist argument of policy can never provide an adequate justification for deciding in favor of one partys claim of right and against another partys claim of right. An appeal to a pre-existing right, according to Dworkin, can ultimately be justified only by an argument of principle. Thus, insofar as judicial decisions necessarily adjudicate claims of right, they must ultimately be based on the moral principles that figure into the best justification of the legal practices considered as a whole. Notice that Dworkins views on legal principles and judicial obligation are inconsistent with all three of legal positivisms core commitments. Each contradicts the Conventionality Thesis insofar as judges are bound to interpret posited law in light of unposited moral principles. Each contradicts the Social Fact Thesis because these moral principles count as part of a communitys law regardless of whether they have been formally promulgated. Most importantly, Dworkins view contradicts the Separability Thesis in that it seems to imply that some norms are necessarily valid in virtue of their moral content. It is his denial of the Separability Thesis that places Dworkin in the naturalist camp. Dworkins Right Thesis wants us not to relent but to make the utmost effort to get the best answer. It is a sort of ideal that Dworkin seems to present to the judge in practical pursuit. As per Stephen Guest, He (the judge) may not get it right but the duty is upon him to try nevertheless. Dworkins work has consistently been concerned with judicial interpretation of law and the role of judges. Dworkin is clear as to the political values he is committed to. His philosophy stresses a Right approach over utilitarian calculations. It is aptly to describe Dworkins theory of law lies in the best moral interpretation of existing social practices. His theory of justice is that all political judgments ought to rest ultimately upon the injunction that, people are equal as human beings, irrespective of the circumstances. However, it seems Dworkin is very much influenced by professor Ron Fuller. His outlook of law come to be colored deeply by ethics and morality as expressed in hi theory and can be seen in his preferences of principles over rules.

As a matter of fact, all legal principles pertain to the domain of morality. My criticism of Dworkins analysis is that Dworkin sought to merge the descriptive elements with the prescriptive to the extent that he has sacrificed reality to a noble dream. However, dreams have their place. They are better than nightmares. This dream looks at what the law can achieve. It sees a purpose to law rather than a mere instrument for social control. We awake from the dream refreshed. This is what law is: for the people we want to be and the community we aim to have (Dworkin Laws Empire)21.


Law's Empire. Cambridge, MA: Harvard University Press, 1986.