Review Essay

Legal Fictiont

LAW'S EMPIRE. By Ronald Dworkin.* CAMBRIDGE, MASS.: HARVARD

UNIVERSITY PRESS, 1986. Pp. 416. $20.00.

By
JAMES D.A. BOYLE**

Ronald Dworkin occupies a role midway between jurisprudential sa-

vant and liberal legal guru. (Nice work if you can get it.) His latest book,
Law's Empire is long, heavy (about three pounds, I would guess) and
well written. It has a blue cover which reminds me of the linoleum in
innumerable Glasgow slum bathrooms. Having said that much I am at a
bit of a loss how to continue. It is not that I suffered the fate of which all
reviewers are terrified-agreeing with the author-though I came much
closer than I had expected. Rather, the problem is that I could no more
give an abstract explanation of what this book means, than I could give
an abstract explanation of the irony in the fact that one of the less suc-
cessful men in the Ford family was called Edsel.
If there was ever a book which positively cried out "I am a cultural
artifact, bring on the visiting anthropologists," this is that book. Law's
Empire tells us something about the liberal reaction to Meese and "origi-
nal intent," it says something about the changing consciousness of that
small subgroup of the legal elite who produce Jurisprudential Theories,
and it has a place in the intellectual history of "the turn to interpreta-
tion," for those who are interested in such things. Along the way the
book develops a sophisticated jurisprudential argument which combines
literary criticism, the high theory of the equal protection clause, and an
imaginary superhuman judge called Hercules. But the most interesting,
and in many ways, the most moving aspect of this book-as-artifact is the
t © Copyright 1986, James D.A. Boyle.
* Professor of Jurisprudence, University College, Oxford University; Professor of Law,
New York University. A.B. 1953, Harvard University; B.A. 1955, Oxford University; LL.B.
1957, Harvard University.
** Associate Professor of Law, American University. LL.B. 1980, Glasgow University;
LL.M. 1981, Harvard University.

[10131
 THE HASTINGS LAW JOURNAL [Vol. 38

plea for a particular, "principled and abstract" vision of politics, moral-

ity, and law-a plea which probably divides the "progressive" (weasel,
weasel) community in the United States. I want to say something about
all of these things but I have approximately four words for every page of
Dworkin's book. Consequently, I am going to resort to the expository
method of mountebanks and charlatans-the anecdote.
I was at a Law Review Dinner the other day. (Those of you who
have the slightest familiarity with such an event will already be shivering,
and the rest could never understand the horror this phrase conjures up.)
The speaker was a prominent and widely respected ACLU lawyer. The
audience was probably expecting "tales from the trenches"-accounts of
battles fought, rights saved, or lost-spiced up, perhaps, by a few pieces
of legal gossip about the remaining liberal members of the Supreme
Court. ("Justice X told his clerks that if he dies they are to prop him up
at the bench and keep voting." "These days the main job of the ACLU
lawyers is to stand outside the court with an umbrella to stop any of the
Justices from catching a chill.") What they got was something rather
different. ,
What they got was a painstaking and respectful account of the argu-
ment made in this book, carefully attributed to Professor Dworkin and
hailed as an escape from the present dilemma of liberal jurisprudence,
caught as it is between Mr. Meese's "original intent" and "the legal nihil-
ism of critical legal studies." 1 (Another county heard from.) This
seemed a little strange, to say the least. Why should a practising civil
rights lawyer be concerned with a fancy theory full of allusions to integ-
rity, interpretation, and chain novels? Are judicial confirmation hearings
going to be turned into seminars on literary theory? ("Mr. Rehnquist,
will you deconstruct the law or will you function as a faithful author in a
chain novel whose origins stretch back into history?") How is Dworkin's
work connected to the ideology of the law, to the catch phrases that are
written on the fronts of public buildings but not in the hearts of lawyers?
These questions provide the best indication I can offer of the multiple
realities, the Edsel Ford ironies, over which Law's Empire stretches. I
will try and get to them all. But to our tale...
Every well-known author, no matter how subtle or recondite, will
sooner or later acquire a two-word tag line in the minds of his readership.
This isn't just a mark of fame, it's what fame is. "Right-answers Dwor-
kin" is no exception. By arguing that there are "right answers" to hard
legal questions, Dworkin gave solace to those who believed that we can
really have a "rule of laws not men" and offense to those who believed
that judicial objectivity was a myth, necessary to shore up the legitimacy
of the liberal state. Notice what has happened. An academic argument
about the possibility of constructing a correct judicial method has be-

1. They also got the gossip and I stole the jokes.

July 1987] BOOK REVIEW

come an argument about the ideology of law and state. If some of what
follows has a "Toto, I don't think we're in Scranton any more" air to it,
this is why.
In Law's Empire, Dworkin may have earned himself a different, and
certainly a more subtle, sobriquet than "Right-answers." I have to admit
that I thought the most admirable thing about his earlier work was its
sheer implausibility. In an era when everyone else was playing around
with relativism, pragmatism, and all the rest of the fuzzy "-isms," Dwor-
kin was apparently relying on natural rights and eighteenth-century ide-
alism. (There can be right answers even if nobody knows, or could ever
know, what they are.) To understand what this argument means one
needs to have some sense of the context in which it was put forward. The
problem that legal philosophers were wrestling with was that law seemed
to be too indeterminate. There were too many plausible answers to legal
questions, too many arguments. There seemed to be a risk (or a hope)
that law was (merely?) political argument, even when "properly" applied
by conscientious judges.
Dworkin's answer seemed to be that we didn't need to worry be-
cause judges were enforcing determinate politicalrights which lay under-
neath the legal system. Given that it was the contentiousness and
relativism of politics that made people want to separate (objective) law
and (subjective) politics in the first place, this was a rather unexpected
move. It was as if a group of modern philosophers of science, in the
middle of a heated discussion of how best to describe the scientific
method in this era of falsiflability, paradigms, and the paradoxes of
probability physics, had suddenly been interrupted by a calm voice which
claimed that the authority of science came directly from God. One has
to admire the sheer chutzpah of the argument, if nothing else.
In Law's Empire, right answers remain but everything has become a
lot more complicated. In fact, I would like to propose a label for this
type of argument: inoculation theory. Dworkin's arguments have been
given weakened versions of the indeterminacy disease in order to prevent
them from falling victim to the disease itself. Law is presented as an
interpretive activity. The distinction between what the law is and what
the law should be has been erased. A judge describing what the law "is"
can only do so by giving the best available interpretation of all of the
strands of doctrine, principle, and policy. This collapses what the law
"is" into what the law "should be" in the same way that a producer's
interpretation of Macbeth collapses the question of what the play "is
about" into the question of what the production "should be about." But
the fact that the judge is making contentious choices based on interpre-
tive criteria that are themselves contentious does not mean that she is
completely free. The judge is working in an interpretive tradition and
her duty is to be faithful to what she interprets to be the potential within
that tradition. At times Dworkin's description of this vision of the "in-
 THE HASTINGS LAW JOURNAL [Vol. 38

tegrity of law" has overtones of an Army advertisement-the judge is

going to make the law "be all that it can be."
Dworkin now confronts his argument with a number of imaginary
objections. (Almost all the challenges in the book are imaginary,
although Dworkin has had no shortage of real ones.) The most impor-
tant one is obvious. Even given his claims about the integrity of the law,
isn't his picture of interpretation actually a mask for complete judicial
discretion? Dworkin responds with his now-famous analogy between
legal reasoning and a chain novel. (I am not sure if there is any signifi-
cance to the fact that he now gives soap operas and the Bible as examples
of the possibilities of multiple authorship. They are certainly more re-
spectable, if no less surprising, than the example he used to use, Naked
Came the Stranger, which is a soft-porn novel.)
Dworkin's idea runs something like this. The judge interpreting a
law is close to the position of one of the later authors in a chain novel.
Each chapter is written by a different author. By the time the novel
reaches our author, characters have been developed, and the plot has
been worked out to a certain extent. Obviously our author can kill off a
character, or introduce a new one. She can give the plot an unexpected
turn or make us see the action through another character's eyes. What
she cannot do (and still be recognized by her community to be "writing a
novel") is turn Romeo and Juliet into a do-it-yourself manual on suicide,
or Around the World in Eighty Days into a brochure for package tours.
Of course each new author is not completely constrained by the intention
of the first author (bang goes Meese's original intent), but neither is the
new author free to do anything she wants. She is limited by the need to
respect, and improve on, the integrity and wholeness of the plot as it has
been developed so far (bang goes critical legal studies).
There are some fairly obvious, and not necessarily fatal, objections
one can make at this point. The modernist conception of writing could
be seen to make it not only acceptable, but positively desirable, to have a
novel that is full of fractures, discontinuities, and shifts of genre. Dwor-
kin says that the interpretation the new author/judge has of the plot
must "fit" what has gone before. An interpretation is ruled out if the
author believes that "no single author who set out to write a novel; with
the various readings of character, plot, theme, and point that interpreta-
tion describes could have written substantially the text that ...[she] has
been given." (p. 230) Where does this canon of construction come from?
If we see the whole genre of novel writing as itselfa chain-novel, would the
injunction I have just quoted 'fit" the "chapters" we have been given? Do
people actually incorporate this principle of "integrity of interpretation"
into their writing or do they, on the contrary, strive for contradiction,
shifts of viewpoint, the aesthetic of the unassimilated fragment? (I must
admit, I would love to see Around the World in Eighty Days suddenly
turn into a holiday brochure.) Like most people who borrow from other
July 1987] BOOK REVIEW

disciplines in order to shore up their own, Dworkin seems to be borrow-

ing from fifty years ago, rather than from the present.
I could carry on this criticism for the rest of the review, but, fear
not, I won't. Dworkin's own discussion contains a number of possible
responses, each of which, I believe, would ultimately turn out to be in-
defensible. He might claim that his principles of literary interpretation
don't need to be turned on themselves because they are matters of form
rather than substance, or that the books which don't fit his model are
actually wrong and should be ignored, or that the premodernist style of
novel is the only one to which we should analogize moral and legal rea-
soning. I am going to limit myself to this, last, idea-partly because I
think it links together all of the puzzles I mentioned after my description
of the Law Review dinner.
It is certainly fairly plausible to think that we should only analogize
moral and legal reasoning to a premodernist idea of creation and inter-
pretation. After all, the analogy is only an analogy. The validity of
Dworkin's philosophical argument does not depend on it, even though its
attractiveness may. Anyway, contradictions and fragments may be all
right aesthetically, but would you want Marcel Duchamp deciding the
extent of your civil rights? Dworkin argues that we feel a revulsion to-
ward inconsistent decisions, and thus that we prefer a consistent applica-
tion of a principle we disagree with to a "checkerboard" pattern of
results which follows no overall principle. "Even if I thought strict lia-
bility for accidents was wrong in principle, I would prefer that manufac-
turers of both washing machines and automobiles be held to that
standard than that only one of them be." (p. 182) He claims that it is his
idea of "integrity" which explains such adverse reactions to
inconsistency.
Despite the plausibility of this set of objections I want to argue that
there is an irreducible and positively good element of modernist contra-
diction and genre-smashing in moral and legal thought, that this element
is much in evidence in the history of the legal system, and that we
should welcome it and work with it. I say this even though the "progres-
sive community" displays conflicting feelings about contradiction, con-
textuality, and form-breaking, and the ideology of law does not
acknowledge that such things could or should be part of our legal system.
In fact I think it will turn out that this complex of conflicting feelings
and implausible denial provides part of the explanation for the unex-
pected appearance of Dworkin's ideas at the Law Review Dinner.
Dworkin does not deny that there are sudden changes-moments
when a line of cases is interpreted out of the picture, when "a property
rights issue" suddenly becomes "a first amendment issue," or when "sep-
arate but equal" suddenly becomes "unequal." But I think he underval-
ues, or underestimates, the importance of changes in the genre, style, or
 THE HASTINGS LAW JOURNAL [Vol. 38

form of legal interpretation as opposed to changes in the results that one

reaches with that interpretation. Paradigms shift in law too. A whole
area of tort law which had been conceived of as a set of "hard-edged
rights" may become an area for "contextual utilitarian calculation."
This can be seen as a conflict between interpretations. But Dworkin's
examples of interpretive conflict concern such vexed issues as whether or
not to emphasize Scrooge's class origins. The shift I have just described
seems more like the challenge to the traditional novel posed by surrealist
automatic writing. It brings into question not only past interpretations
but the criteria under which those interpretations were judged-includ-
ing Dworkin's ideas of fidelity, integrity, and "fit." Can "integrity" im-
munize itself from reinterpretation? Dworkin does more than tip his hat
to these shifts in genre-but I think that they undermine (or should I
say, "give an unruly reinterpretation of") one of the main parts of his
project. Law's Empire often mentions features of character, plot, or stat-
utory policy that must be accounted for if one wants to produce a "com-
petent" interpretation. Justifications of the Endangered Species Act
must appeal to a policy of protecting endangered species, for example.
Seems fair. But what do we do if one of the most fundamental aspects of
the legal system, as seen by its community of "readers," is its iconoclas-
tic, method-trashing, genre-breaking, tendency? What if judges, law-
yers, and the rest of the legal profession seem to embrace contradiction,
tangle, and opposition as legitimate, perhaps even central parts of what
they do. What if law seems to be built on a latticework of contradictions:
rights and utility, communal and individualistic visions of the social
world, tort and contract images, rules as iron cages and rules as useful
rhetoric, law as dispute resolution and law as social engineering, judges
as "umpires, detached from society" and judges "in tune with changing
mores," and so on, and so on. If all this is true, one could argue that, in
order to "fit" past legal practice, Dworkin's vision of law as integrity
must also include the metaprinciple that interpretive judgments should
as a matter of course contradict past judgments, that Hercules should be
a poststructuralist one day and a literalist the next, that not just result,
not just style, but form, genre, and self-conception should be changed
constantly.
I am not trying to argue that this is the true interpretive
metaprinciple and that Dworkin's is the false one. (Although I would be
hard put to choose between them if I had to pick one.) It is more compli-
cated than that. I think Dworkin makes a false association between
"consistency according to some reasoned interpretation" and morality,
justice, and the good. Similarly I think he makes a false association be-
tween contradiction and (crass interest-group) politics, biased decision-
making and injustice. This leads him to deny the contradictions and in-
consistencies in the legal system. Perhaps "deny" is the wrong word,
unless it is used in a psychoanalytic way. It leads him to "explain away"
July 1987] BOOK REVIEW

inconsistencies as correctable aberrations, or as things that seem to be in

contradiction but which can actually be reconciled by some deeper inter-
pretation, or as the surface confusion found in any social institution
which has to reconcile complex goals, or as the inevitable shortfall be-
tween the ideal and the actual, or whatever. This process of "explaining
away" contradiction is an heroic task-somewhat akin to explaining
away the theme of ambition in Macbeth. We should honor Dworkin for
it. But that does not mean we should believe him.
So far I have argued that Dworkin is wrong to exclude the modern-
ist ideas of form-breaking, genre-smashing, and creative experiment
which seek directly to contradict past principles. If we ignore this side of
moral and legal thinking we condemn ourselves to a compulsive and
fruitless attempt to explain away past contradiction. We would also be
denying something which is more than an aesthetic. The modernist idea
of constantly destabilizing the context-whether social, legal, or moral-
can be portrayed as the most basic manifestation of the struggle between
the infinite potential of the human spirit and the finite possibilities of a
social world.2 By breaking the previously settled patterns of acceptable
sexual preference, or the "form" of the nuclear family, we may be assert-
ing a freedom and a morality which is "destructively reinterpreted" by
Dworkin's concern with integrity. But what could all this possibly have
to do with the appearance of Dworkin's ideas at the Law Review Dinner?
I think there is a connection which, though mundane, is nevertheless
interesting.
There is a kind of angst experienced by liberals who can find no
formal, qualitative distinction between the attitude towards constitu-
tional precedent shown by today's Supreme Court and that shown by the
Warren Court. It would be nice if there were some independent legal
criterion that would allow us to condemn the contemporary Court for
effecting a radical change in what most of the profession understand to
be the law on affirmative action. It would be even nicer if this criterion
turned out to support the Warren Court's actions on the occasions when
it made similarly radical changes. Obviously the criticism can't be of
"judicial activism." Dworkin is particularly effective in pointing out how
little this phrase means. Must we hang our heads and admit that we just
like the outcomes, that we change our formal criteria to fit the kind of
substantive result we like, and that there is nothing else to it? Law's
Empire does not set out directly to deal with this problem, but a lot of
people will read it for this reason, and will draw from it the plausible, but

2. Those who are interested in the idea of a modernist social theory and a modernist
conception of the self might want to try the later work of Roberto Unger. Interestingly, Dwor-
kin seems to be getting closer and closer to Unger's conception of law-"expanded doc-
trine"---while at the same time taking the opposite view of modernism. See Boyle, Modernist
Social Theory: Roberto Unger's Passion, 98 HARV. L. REV. 1066 (1985).
 THE HASTINGS LAW JOURNAL [Vol. 38

mistaken, answer that liberal judicial interpretation has been faithful to

the idea of "law as integrity," but that conservative interpretation has
not. It was the promise of this resolution that marked the appearance of
Dworkin over white wine and rubber chicken. Given Dworkin's state-
ments in the book and elsewhere it is hard to know his own ideas on the
issue. But I think that, in any event, the whole debate is misconceived.
It is misconceived because there is more to the law than on the one hand
liking the outcomes and, on the other hand, being "principled." What
does it mean to say that law is politics? It need not mean that it is simply
a matter of who wins and who loses, that it all reduces to some concep-
tion of instrumental interest. It is this impoverished conception of poli-
tics that leads people to talk about the "legal nihilism" of critical legal
studies. By escaping from this impoverished conception one can find a
way to distinguish between the Warren and (Rehnquist?) Courts that is
more than just outcome preference, but is less than some determining
principle.
Law is objectified social theory, it is a utopian lexicon, a pifiata full
of images of the good life. This does not mean that these images "deter-
mine" some particular result, or that liberals have their collective finger
on the pulse of the true "integrity" of the legal system. It does mean that
one can endorse the political visions, ideas, and emancipatory images
that came out of the Warren Court, and condemn the vision of society
enunciated by today's Court, without having the grubby feeling that one
is supposed to associate with "mere" outcome preferences. But there is a
further point. Once one has got this far it would be rather a shame if the
most that one could manage was to do a patch-up job on the legalistic
political vision of mainstream American liberalism.
I remember a Supreme Court ruling which shifted the boundaries of
the private sphere from the outside to the inside of a plastic bag in the
trunk of someone's car. It turned out that one could fit an "expectation
of privacy" into a plastic bag. Recently, the Supremes (as they are
known in the trade) changed their minds. It turned out that that bag was
too flimsy after all. It could not hold such a metaphysical burden. This
meant that a search which had discovered drugs in the bag was not un-
constitutional. The thing that interested me was the degree and extent
of political energy that was spent in debating this case (and "other simi-
lar erosions of the fourth amendment") at a time when profitable facto-
ries were being closed (for the tax write-off), America was bombing or
invading some new country, and a million of the private oppressions of
everyday life were starting up or winding to a close. A political vision
fixated on drawing the boundaries between individual and state power is
blind to all of these-but it need not be. The utopian lexicon of the law
contains more words than those used by ACLU liberalism. Ideas of sub-
stantive equality, of reliance, of community and personal connection, of
the importance of day-to-day dignity, of unjust enrichment and collective
July 1987] BOOK REVIEW

rights in the environment-these are all part of law's empire, and per-
haps even part of Law's Empire, though it's hard to tell. But it seems to
me that the redemption of these ideas is more likely to call for a practice
that is inspired by Breton, Feuerbach, and Sartre than by Dworkin's
Judge Hercules.
Having taken issue with Dworkin on his attitude towards modern-
ism, commented on the liberal angst over the contemporary Supreme
Court, and redescribed law's empire, I feel that I must redress the bal-
ance of my remarks. There are a lot of good things about this book.
While it may not turn out to be the legal equivalent of Rawls' A Theory
of Justice,3 it will undoubtedly be one of the "industry standards" for
liberal legal thought for some time to come-and deservedly so. In his
previous books 4 Dworkin seemed to have mastered the key to jurispru-
dential success, or at least invulnerability-to be able to write clearly on
the level of paragraphs and yet obscurely over the length of a book. One
could not say that about Law's Empire.
There are other differences between the old and the new Dworkin.
He has always been fond of using hypothetical objections to move his
argument forward. That pattern remains. But his old imaginary oppo-
nents could barely manage a twitch as he hacked them to pieces, straw
flying everywhere. The "conventionalist" and the "pragmatist" de-
scribed in Law's Empire are much more believable; they are interesting
adversaries rather than devices to advance the argument. They too, may
turn out to be straw men, but at least they are armed.
Dworkin's examples-the cases in which he works out the details of
this method-are similarly transformed. It is not that they are all new
examples. (Devotees will be happy to know that "the murdering heir"
reappears in Law's Empire, faithful as a soap opera rerun.) It is the level
and depth of the analysis that has changed. Hercules, the imaginary
judge Dworkin wheels on to deal with his imaginary opponents, would
always arrive in the argument with a flurry of Uriah Heep self-depreca-
tion (" 'umble, 'umble, yer honour"). Despite the humility, we would be
told a few moments later that he had solved the case using Dworkin's
method. Since we never saw his opinion this procedure somehow failed
to convince. "I have invented a superhuman who uses my method, so my
method must be right." The new cases have some complexity of fact,
they are taken apart in more detail, and Hercules reveals a little more of
his judicial and stable-cleaning methods by actually pronouncing in some
detail on the question of who should win and lose.
Above all, though, Law's Empire is simply a richer and more honest
account of legal practice. In order to make the move away from formal-

3. J. RAwLS, A THEORY OF JUSTICE (1971).

4. R. DWORKIN, A MATTER OF PRINCIPLE (1985); R. DWORKIN, TAKING RIGHTS
SERIOUSLY (1977).
1022 THE HASTINGS LAW JOURNAL [Vol. 38

ism, Dworkin is forced to depart radically from the popular ideology of

law. "The rule of laws and not men" has become the rule of men (and
women, we hope) who engage in a frankly contentious attempt to tell a
"good" story which preserves the integrity of the legal system. To com-
plicate things further, the criteria for what counts as a good story and
what counts as integrity are, themselves, matters of heated debate. Not
only would this be harder to engrave in marble on the front of a public
building (the fate of all successful ideologies), it seems to offer "interpre-
tive integrity under judges" in the place of "Equal justice under laws."
Despite Dworkin's seductive prose and his implausible insistence that
this is what he meant by right answers all along, he is probably going to
be on the receiving end of a few charges of nihilism, himself. Inocula-
tions are always accused of being as bad as the disease. And unsuccess-
ful inoculations, well...