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occasionally also as “matter of plainfact” and “plain-fact” theories, “lit-
eralism,” “historicism,” “passivism,” or “semantic theories”). Dworkin™s
own theory is rechristened as “law as integrity” and presented not as a
radical alternative to the “ruling theory,” but rather as the moderate
middle ground between the two extremes of “conventionalism” and
“pragmatism.” Pragmatism, which he sometimes also calls “activism,” is
the view that judges may ignore coherence and “make whatever decisions
seem to them best for the community™s future.” In this moderate mood,
Dworkin grants that both extremes possess certain virtues. Conventional-
ism, by insisting that judges confine themselves to interpreting formal
legal rules and observing precedent, provides a sense of security for
expectations. Pragmatism, on the other hand, has the flexibility that
conventionalism so conspicuously lacks. But against conventionalism,

53
Ronald Dworkin, Law™s Empire (Cambridge, MA: Belknap, 1986), 219.
54 55
Ibid., 114. Ibid., 378.
Ronald Dworkin 297
he marshals all the earlier criticisms of the “rule book theory.” And
pragmatism fails, he argues, because it carries flexibility too far by al-
together rejecting “the idea of law and legal right.”56
Nevertheless, although both the introduction of pragmatism as the
opposite of conventionalism and the criticism of it are new, for the most
part what Dworkin has to say about “law as integrity” is merely a
moderated version of the lessons taught in the earlier books, i.e., that
law does not consist of explicit formal rules but of the moral principles
underlying such rules; that adjudication must be based on a wide-ranging
political theory rather than on formal legal rules; and that law is insepar-
able from politics. The last point receives more emphasis in Law™s Empire
through Dworkin™s regular use of “past political decisions” as a synonym
for law. But the more important novelty is Dworkin™s description of
“integrity” as a “political ideal” that should dominate political life.57 This
new theme is important because it holds the clue to the presuppositions
of what Dworkin had been teaching all along and of all political
jurisprudence.
One of these presuppositions is stated explicitly. Thus, it becomes clear
for the first time that Dworkin identifies the essence of law with the
coercion sanctioned by it. The central question for any conception of
law is, he says, “What can ever give anyone the kind of authorized power
over another that politics supposes governors have over the governed?”
To answer that question, “A conception of law must explain how what it
takes to be law provides a general justification for the exercise of coercive
power by the state . . . Each conception™s organizing center is the explan-
ation it offers of this justifying force.”58 When law is not simply coupled
with the exercise of coercion, it is described as an instrument employed by
the “governing power” to “control” the behavior of the governed.
The reason why Dworkin explicitly points out the connection between
law and coercion is that the object of his jurisprudence, as he describes
it in Law™s Empire, is to find a conception of law sufficiently “attractive”
to persuade people that the coercion sanctioned by the law is “legitimate.”
And he considers the peculiar virtue of “law as integrity” to be its ability
to connect “past political decisions” with “present coercion” by offering
a better explanation of how “past political decisions” allow collective
force to be trained against individuals. Therefore, “a state that accepts
integrity as a political ideal has a better case for legitimacy than one that
does not.”59


56 57
Ibid., 95; see also 8, 33, 130, 378. Ibid., 188“91.
58 59
Ibid., 190“92, 219. Ibid., 191“92, 98, 227“28.
298 The idea of law repudiated

The principle of integrity teaches us first of all not to ask whether
judges “find” or “invent” the law. Instead, judges are recognized to “do
both and neither.” For “The adjudicative principle of integrity instructs
judges to identify legal rights and duties, so far as possible, on the
assumption that they were all created by a single author “ the community
personified.”60 Although Dworkin has argued throughout for seeing the
law as a coherent whole, only in Law™s Empire does it become clear how
his emphasis on coherence differs from the traditional view, which also
requires judges to see the law as a coherent whole. In Dworkin™s account,
the coherence of the law becomes synonymous with “the state speaking
with a single voice,” with seeing the law in terms of a single principle, or as
the work of a single author.61 Moreover, Dworkin takes great pains to
emphasize that “law as integrity” is not to be confused with consistency.
On the contrary, adjudication that “accepts that ideal,” he points out,
“will sometimes, for that reason, depart from a narrow line of past
decisions in search of fidelity to principles conceived as more fundamental
to the scheme as a whole.” The ideal of integrity is far more demanding
than consistency. It is “a more dynamic and radical standard” than it
seems at first sight because “it encourages a judge to be wide-ranging and
imaginative in his search for coherence with fundamental principle.”
Judges must be ready to see that “an important part of what has
been thought to be law is inconsistent with more fundamental principles
necessary to justify law as a whole.”62
The emphasis on equating the coherence of law with a single objective,
created by a single author with a single voice, is the most significant
novelty in Law™s Empire. That emphasis springs from the basic presup-
position of “law as integrity” and that the “organic” community is the
only “true” community. This community is contrasted by Dworkin to the
“rule book model” of community where the “concern it displays is too
shallow and attenuated to count as pervasive”63 because unity is achieved
“through [such superficial arrangements as] negotiation and comprom-
ise,”64 contractual relationships, the definition of discrete responsibilities,
and “Explicit agreements hammered out at arm™s length.”65 Dworkin
presents the organic community as if it were the only alternative to
reducing the idea of a community to a sum of competing interests. He
accordingly describes an organic community as “a society of principle”
which “takes a more generous and comprehensive view” of a shared
understanding. The members “accept that they are governed by common
principles, not just by rules hammered out in political compromise.” As a

60 61 62
Ibid., 225. Ibid., 217“18, 225. Ibid., 219“21.
63 64 65
Ibid., 190, 212. Ibid., 210. Ibid., 220.
Ronald Dworkin 299
result, politics in an organic community “is a theater of debate about
which principles the community should adopt as a system” instead of
being an effort by each individual “to plant the flag of his convictions
over as large a domain of power or rules as possible,”66 as in the rule book
idea of community.
But what is really at issue here is whether the subjects of law are
taken to be independent persons, pursuing projects of their own choosing
while observing a common set of rules (as in the traditional view of
law), or whether law is to be regarded as the instrument of an enterprise
pursuing a single objective. In the latter sort of community, individuals
are related like the parts of a machine or the organs of a body, that is
to say, their activities are directed to serve a single end, the end of the
whole of which they are the parts. It is the latter understanding of a
community, it becomes clear in Law™s Empire, that is postulated by
Dworkin™s view of law.
If a community is understood in this fashion, it follows, according to
Dworkin, that the rights and duties of its members “are not exhausted by
the particular decisions their political institutions have reached,” but
depend more generally on “the scheme of principles which those decisions
presuppose and endorse.” Why Dworkin has insisted all along that law
consists not of formal rules but of moral principles becomes evident when
he says that each member of a true community “has duties flowing from
that scheme” even though these have never been formally identified or
declared. Moreover, Dworkin emphasizes, no member supposes that such
rights and duties “are conditional on his whole hearted approval of that
scheme.”67 And political obligation is “not just a matter of obeying the
discrete political decisions of the community one by one, as political
philosophers usually represent it.” Instead, political obligation “becomes
a more protestant idea: fidelity to a scheme of principle each citizen has a
responsibility to identify, ultimately for himself, as his community™s
scheme.”68 The old concept of political obligation has then to be replaced
by a new concept of “associative or communal obligations,” which “are
complex, and much less studied by philosophers than the kinds of per-
sonal obligations we incur through discrete promises and other deliberate
acts.” “Associative obligations” cannot be defined through explicit rules.
They are just part of the community™s “scheme.” It follows, Dworkin
argues, that the emphasis on choice to which we are accustomed is
misplaced because the connection between “associative obligation” and
choice “is much more complex and more a matter of degree that varies
from one form of communal association to another.”69

66 67 68 69
Ibid., 211. Ibid. Ibid., 190. Ibid., 196.
300 The idea of law repudiated

Dworkin is not advocating the Hobbesian concept of authority, which
claims that as long as individuals accept the authority of the reigning
legislature, they are obliged to observe the law even when they do not
approve of it. Instead, the moral principle that underlies Hobbes™s con-
cept of authority “ that no man may be obligated save by a choice of his
own “ is firmly repudiated. In the organic community admired by Dwor-
kin, there is no place for a concept of authority because what individuals
approve of is irrelevant. The only thing that matters is maintaining the
whole in good working order, or pursuing the objective of the enterprise.
That is why Dworkin opposes what he describes as the normal way of
arguing about social and political institutions “ “by attacking or
defending them on grounds of justice or fairness.” Integrity, he says,
cannot be defended in this normal way because “integrity will sometimes
conflict with what fairness and justice recommend.” Instead, Dworkin
prefers “French revolutionary rhetoric” because it recognized “a political
idea we have not yet considered.” This new political idea is “fraternity.” It
is, he tells us, “in the neighbourhood of fraternity or, to use its more
fashionable name, community,” that we must look for the defense of
integrity. Furthermore, a political society “that accepts integrity as a
political virtue thereby becomes a special form of community, special in
a way that promotes its moral authority to assume and deploy a mono-
poly of coercive force.”70 This community is an organic whole, not an
association of individual persons.
Once we think of a community as an organic whole with a unitary end,
it makes sense to say, as Dworkin does, that “Law is not exhausted by any
catalogue of rules or principles, each with its own dominion over some
discrete theater of behavior. Nor by any roster of officials and their
powers each over part of our lives.” What defines Dworkin™s “empire”
of law is “attitude, not territory or power or process . . . It is an
interpretive, self-reflective attitude addressed to politics in the broadest
sense. It is a protestant attitude that makes each citizen responsible for
imagining what his society™s public commitments to principle are, and
what these commitments require in new circumstances.”71 It is also true
that in such a community, “the set of recognized public standards,” as
Dworkin puts it, “can expand and contract organically . . . without the
need for detailed legislation or adjudication on each possible point of
conflict.” Integrity is accordingly described by Dworkin as “a vehicle for
organic change” since judges guided by the principle of integrity cannot
be accused of usurping power that does not belong to them when they
reject the rules of a statute in favor of promoting more adequately the

70 71
Ibid., 188. Ibid., 413.
Ronald Dworkin 301
underlying “scheme” of the whole. Instead of thinking in terms of “nego-
tiated solutions to discrete problems,” citizens governed according to the
principle of integrity accept demands on them and make demands on
others “that share and extend the moral dimension of any explicit polit-
ical decisions.” Integrity therefore both fuses citizens™ “moral and political
lives” and “infuses political and private occasions each with the spirit of
the other to the benefit of both.”72 All are thus made one; multiplicity
ceases to exist.
In short, all the traditional notions about the rule of law, and especially
the fundamental belief that there can be no crime without a legal rule
defining it, are dismissed. Instead, the citizens of an organic community
are governed by a “common . . . scheme of principles.” And only a self-
interested bigot, or an ignoramus seduced by “conventionalism,” would
try to pin down a charge brought by officers of the government to a set of
words explicitly justifying that charge. Thus, Dworkin rejects what the
rule of law has traditionally postulated “ that a community governed by
law consists of independent subjects pursuing their own projects and
associated by their observance of a common set of rules “ in favor of
“Fraternal association,” which is “conceptually egalitarian.” And he
points out that the “obligations of fraternity need not be fully voluntary,”
and that the community need not “agree in detail” about what responsi-
bilities each has for one another. The members of a true, organic commu-
nity accept “associative” obligations; they “share a general and diffuse
sense” of “what sort and level of sacrifice” may be expected of them.73
Moreover, they recognize that “the best defense of political legitimacy . . .
is to be found not in the hard terrain of contracts or duties of justice or
obligations of fair play that might hold among strangers, where philoso-
phers have hoped to find it, but in the more fertile ground of fraternity,
community, and their attendant obligations. . .”74
By inventing “law as integrity,” Dworkin has attempted to produce
what the Russian Marxist jurist, Pashukanis, declared to be impossible “
an understanding of the rule of law that would be compatible with a
community understood as an enterprise pursuing a single objective. Given
this objective, it is hardly surprising that Dworkin™s writing is distin-
guished by a “Byzantine complexity.” For he is attempting to produce a
square with the formula for a circle. Indeed, Dworkin™s project is even
more difficult than the one Pashukanis repudiated because Dworkin does
not write as a Marxist.



72 73 74
Ibid., 188“90. Ibid., 211, 198“201. Ibid., 206.
302 The idea of law repudiated

Where there is an enterprise, there must be an objective that the
enterprise is seeking to achieve. In other words, an organic community
has to have a single objective. There is no such objective for the kind of
community postulated by the traditional idea of law because it does not
seek to order the activities of its members so as to promote a superior
unitary good, but to allow each peacefully to pursue, either alone or in
association with others, whatever projects one chooses. As the pursuit of a
unitary good is precisely what defines the organic community presup-
posed by “law as integrity,” the government of such a community is
dedicated to achieving certain results rather than to maintaining proced-
ures whereby individuals can choose whatever results they regard as
desirable.
This poses no problem for advocates of an organic community who are
Marxists or socialists like Beatrice and Sidney Webb. They take it for
granted that the objective of an organic community is the efficient pro-
duction of wealth, or what the Webbs described as maintaining “the
health of the social organism.” The Webbs accordingly emphasized re-
peatedly that the object of their form of socialism is not equality but
ensuring that each individual adequately performs a task required for
maintaining the whole. That is also the message of the Marxist slogan:
“From each according to his abilities, to each according to his needs,” But
not even avowed Marxists are willing to commit themselves to an object-
ive of this kind. Nor has any of them adopted the aggrandizement of
national power as his aim. As a result, they are left floundering in a
swamp of commitments, concerns, ideals, values, obligations, responsi-
bilities, principles, and standards, without being able to grasp any sub-
stantial objective for the enterprise that their idea of law is meant to serve.
In Law™s Empire Dworkin addresses this difficulty directly, as he had
never done before. And having squared the circle at last, he can
speak more moderately about the opponents against whom he had been
battling all along, but never so successfully as with his invention of
the principle of “integrity,” “associative obligations,” and an “organic
community” in Law™s Empire.
There it becomes clear why he has so steadily emphasized the concept
of “equal concern and respect”: It is his solution to the problem of
discovering an objective for an organic community that might appear to
be compatible with the rule of law. For the concept of equal concern
and respect brings to mind the phrase, “equality before the law,” and
might even be regarded as a synonym for that traditional idea. But in
advocating “equal concern and respect” as the single objective of law,
Dworkin means something very different from equality before the law.
“Integrity” requires, Dworkin tells us, “that government pursue some
Ronald Dworkin 303
coherent conception of what treating people as equals means.” However,
he warns us, “it does not require that particular programs treat every
one the same way.”75 In plain words, Dworkin is advocating that the law
be used as an instrument for redistributing resources so as to secure
equality. To do so the government may be required not to “treat everyone
the same way,” because securing equal results may require positive dis-
crimination. And he leaves us in no doubt that it is an equal distribution
of resources that offers the best explanation of “what it means to treat
people as equals.” This, Dworkin says, “is the goal of law purified, the
community™s star in its search for integrity seen from the standpoint of
justice alone.” Unlike others who have pursued this objective, however,
Dworkin proposes to achieve it through handing over power to the
“capitals” and “princes” of “law™s empire,” the courts and the judges.76
The weapons he proposes to use are as original as the revolution he hopes
to make.
Dworkin thus completes an explanation of why law is inseparable from
politics. But instead of elucidating the idea of law, in Law™s Empire the
understanding of law that began to take shape in ancient Athens is
decisively renounced.

75 76
Ibid., 223. Ibid., 407“8.
Part VI

New foundations
15 A skeptical jurisprudence:
Michael Oakeshott
_____________________________________________________________________________________________________________________________________________________


One reason why the renunciation of the idea of law has seemed plausible
and gained increasing acceptance is the failure of Hobbes™s successors to
complete his account of law as a purely human artifact. They explored
new aspects of the traditional idea by questioning and explicating much
that had never before been noticed. But they failed to provide a way of
understanding the relation of the rule of law to the civilization that it had
shaped. The many refinements on the idea of law offered no adequate
anchor for law in a world where human intelligence lacks the power to
discover rational certainties such as Plato and Aristotle had relied on. The
task of discovering a new kind of anchor for a system of legal rules was
completed by Michael Oakeshott in what may be best described as a
skeptical jurisprudence.
The originality and significance of Oakeshott™s jurisprudence is, how-
ever, difficult to grasp. For it rests on the paradoxical character of
Oakeshott™s skepticism. The pattern for that character was established
by David Hume. What makes both Hume and Oakeshott paradoxical is
that, although they are skeptics in the sense that they recognize no
rational source of indisputable truth, they could hardly be more antagon-
istic to nihilism. They both insist, without qualification, that men can
know truth from falsehood and right from wrong. Nor does their
skepticism entail atheism; on the contrary, it is allied to the theology of
Augustine and Hobbes, where such skepticism is not merely tolerated but
required as the consequence of acknowledging that God is a Creator
irrevocably separate from His creatures and utterly unknowable.
Yet it is not surprising that this skepticism has been confounded with
nihilism. For it is hardly obvious how, in the skeptic™s world of ever
shifting sands, we can find a solid rock to stand on. The lack of such a
rock has made it plausible to think of legal rules and decisions as products
of caprice disguised by elaborate but empty procedures and to repudiate
the idea of law. Moreover, Hume invited confusion by emphasizing the
destructive part of his project and leaving it unfinished. An understanding
of the human condition that could deal with the dilemmas bequeathed by

307
308 New foundations

Hume without renouncing skepticism was provided by Oakeshott. He
showed how a skeptic need not, indeed should not, be a nihilist. And in
doing so, he solved “ or at least showed the way to solving “ the skeptic™s
dilemma by answering the question that has agitated all modern philoso-
phers: How can we reconcile the apparent orderliness of the human world
with the conviction that human beings have no access to an infallible
source of rational truth?
Other modern philosophers have evaded this question either by
returning, more or less surreptitiously, to classical or medieval metaphys-
ics or by trying to relocate the source of infallibility within the human
world or else they have thrown up their hands in despair and assured us
that it is a delusion to suppose that we can escape from the abyss of
nothingness and the dreadful freedom with which it confronts us. The
same responses, as we have seen, appear in the history of the philosophy
of law. Oakeshott set himself to showing that although the human world
has no cosmic anchor, it is nevertheless full of stable and objective
standards for thought and conduct.
The pattern of Oakeshott™s solution is nowhere clearer than in his
account of the rule of law where he provides answers for the most
awkward questions that confront the skeptic: If human laws cannot be
founded on indisputable truths given to man by a non-human source,
how can any law claim to be just or preferable to any other? If the
human world is constantly changing, how can fixed rules of law be
appropriate? As everything can be other than it is, why are we obliged
to obey the established law? How can we distinguish objective legal
decisions from expressions of prejudice or arbitrary exercises of will?
Defenders of the rule of law have denounced and denied the skepticism
that inspires such questions and insisted that the meaningfulness of law
can be saved only by recognizing some “absolute standard” such as
“natural law” or “natural rights.” Their opponents have argued that
any claim to objectivity or justice in legal decisions is fraudulent, that
we should dispense with rules, and that we cannot be obliged to obey a
law of which we disapprove. Oakeshott proposed a wholly new way of
thinking about the human condition and hence about law. Understanding
it requires learning a new vocabulary and following a fairly taxing maze
of distinctions.
The foundation of Oakeshott™s solution to the skeptic™s dilemma is a
radical redefinition of reason. When Hobbes and Hume rejected the old
pantheist view of human reason as a participation in the cosmic ordering
principle, they reduced reason to a capacity for doing two things: dedu-
cing conclusions from premises that could not be questioned, as in geo-
metry, and seeking satisfaction for the desires given by the passions,
Michael Oakeshott 309
which Hume summed up in his description of reason as “the slave of the
passions.” This view of reason intensified the alienation of individuality
from rationality, which the ancient pantheist metaphysics made inevit-
able. In the modern picture, whether derived from Hobbes or from Kant,

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