The value of community, or how burke compromises dworkin

Legal Theory

Volumn 9, Issue 2, 2003, Pages 125-156

  Mian, Emran ^a  

^a University of Cambridge   (United States)

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EID: 84923432615     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325203000065     Document Type: Article

References (40)

1. He refers to the “curious philosophy of Edmund Burke”: R. Dworkin, TAKING RIGHTS SERIOUSLY x (1978) (hereinafter “TRS”).
2. R. Dworkin, LAW'S EMPIRE 243 (1986) (hereinafter “LE “).
3. “Astronomers postulated Neptune before they discovered it. They knew that only another planet, whose orbit lay beyond those already recognized, could explain the behaviour of the nearer planets. Our instincts about internal compromise suggest another political ideal standing beside justice and fairness. Integrity is our Neptune.” LE at 183.
4. LE at 183. Footnote omitted.
5. E. Burke, REFLECTIONS ON THE REVOLUTION IN FRANCE 170 (1986) (hereinafter “RRF “).
6. LE at 188. In a gracious footnote to the term “fraternity,” Dworkin adds: “The word is unfortunate because it is etymologically masculine. I mean sorority as well, or the idea common to these latinate terms.”
7. RRF at 171.
8. RRF at 373.
9. RRF at 280.
10. RRF at 171.
11. RRF at 280.
12. RRF at 171.
13. RRF at 280.
14. Cf. D. Bromwich, Burke, Wordsworth and the Defense of History, inACHOICE OF INHERITANCE: SELF AND COMMUNITY FROM EDMUND BURKE TO ROBERT FROST (1989); B.J. SMITH, POLITICS AND REMEMBRANCE: REPUBLICAN THEMES IN MACHIAVELLI, BURKE, AND TOCQUEVILLE (1985).
15. RRF at 280-282.
16. LE at 199-200.
17. R. Dworkin, SOVEREIGN VIRTUE: THE THEORY AND PRACTICE OF EQUALITY 1-3 (2000) (hereinafter “SV “).
18. SV at 231.
19. The case for this shared responsibility for political decisions is made at greater length in R. Dworkin, The Partnership Conception of Democracy 86 CALIFORNIA LAW REVIEW 453 (1998).
20. For complaints that Dworkin's notion of communal life is too thin or question-begging, see respectively, P. Selznick, Dworkin's Unfinished Task 77 CALIFORNIA LAW REVIEW 505 (1989); and B. Williams, Dworkin on Community and Critical Interests 77 CALIFORNIA LAW REVIEW 515 (1989).
21. SV at 233.
22. SV at 236.
23. The allusion is to Robert Nozick's theory of justice, cf. Anarchy, State, Utopia (1978).
24. SV at 235.
25. LE at 204-205.
26. LE at 201.
27. LE at 407.
28. LE at 190.
29. Nordahl suggests that the moral force of law is ultimately, in Dworkin's work, connected to authorship, the allocation of a role to the citizen in the theater of debate. Law as integrity does proffer this role. However, Dworkin does not pay very much attention to it. The role of judges seems much more important. I am thus skeptical of Nordahl's claim but I believe that this altered conception of law, involving justice in the place of integrity, allows for authorship in at least the same way: R. Nordahl, The Place of Community in Dworkin's Jurisprudence 12 WINDSOR YEARBOOK OF ACCESS TO JUSTICE 263 (1992); Nordahl, Rousseau in Dworkin 3 LEGAL THEORY 317 (1997).
30. J. Waldron, The Circumstances of Integrity, in LAW AND DISAGREEMENT (1999). Hereinafter referred to as CI. Waldron does state more “circumstances,” but these are the two which are relevant to the discussion which follows.
31. The argument here is similar to the argument made by Ken Kress. Law as integrity seems to be threatened by the same sorts of uncertainty and indeterminacy problems as natural law-perhaps I should be using the term “natural law” myself for the alternative set up against law as integrity-and yet it is not even incurring those risks for the sake of moral correctness: K. Kress, Why No Judge Should Be a Dworkinian Coherentist 77 TEX. L. REV. 1375 (1999).
32. Many commentators contend that Dworkin does not give due regard to systemmaintaining forces and that his protestant theory of interpretation, whereby each judge must interpret under the illumination of his own moral lights, slights the social forces that are at work in giving rise to and maintaining the systematizing and regularizing phenomenon we know as law. See, e.g., R.H. Fallon, Jr., Reflections on Dworkin and the Two Faces of Law 67 NOTRE DAME L. REV. 553 (1992); N. Simmonds, Between Positivism and Idealism 50 CAMBRIDGE L.J. 308 (1991).
33. LE at 87-88.
34. CI at 205.
35. RRF at 280.
36. Dworkin seems to be invoking a similar notion of gradualism when he approvingly refers to “Otto Neurath's happy image,” the boat at sea which must be repaired one plank at a time: LE at 111, 139.
37. See, e.g., D. Newman, Individual, Subnational and International Identity: A Critique of Dworkin's Conception of Community 17 WINDSOR YEARBOOK OF ACCESS TO JUSTICE 86 (1999); E. Lagerspetz, Ronald Dworkin on Communities and Obligations: A Critical Comment 12 RATIO JURIS 108 (1999); E. Christodoulidis, The Suspect Intimacy between Law and Political Community 80ARCHIV FUR RECHTS UND SOZIALPHILOSPHIE 1 (1994).
38. RRF at 135.
39. RRF at 135.
40. RRF at 315.