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RADICAL DISCOURSE IN LEGAL THEORY: HART AND DWORKIN Frederick C. DeCoste* The point of critique is not justification but a different way of feeling: another sensibility. Gilles Deleuze, I. INTRODUCTION Dominant legal theory is positivist because it conceives of itself and of legal practice epistemically. 2 But an epistemic vantage is not its only distinguishing feature. Dominant theory is also defined by a number of moral and political consequences which follow ineluctably from its epistemic self-conception.3 Charles Taylor contends that some very specific consequences of this sort follow necessarily from "the modem conception of knowledge". 4 This is so, he argues, because an * Faculty of Law, University of Alberta. I am indebted to Hans Mohr of Osgoode Hall Law School for his help and especially his encouragement with this work. I G. Deleuze, Nmrzci-m AND PmLosopHy, trans. H. Tomlinson (London, Athlone Press: 1983) at 94. 2 That is, dominant theory declares itself positivist because it views legal practice as a knowledge practice and legal theory as a demonstration that a practice of that sort is possible. See FC. DeCoste, Retrieving Positivism: Law as Bibliography (1990) 12 DALHOUSiE L.J. [forthcoming] [hereinafter Retrieving Positivism], where I argue that dominant legal theory, including especially the work of Hart and Dworkin, is positivist precisely because it defines an epistemic project for both legal theory and legal practice. 3 That is, legal theory is positivist not only because it conceives legal theory and legal practice in epistemological terms, but also because such a conception implicates certain moral and political consequences. There are, I believe, three such consequences. An epistemic view first requires the privileging of epistemic competence and the degradation of the incompetent and their estrangement from practice. Second, it effects the closure of legal discourse and renders the moral and political life of practice incontestable. Finally, it defines officials as epistemic subjects and, in so doing, renders them moral cowards and defines their practice as one of aestheticism. In this essay, I deal with the second consequence. I deal elsewhere with the first and the third. See EC. DeCoste, Citizens in Legal Theory: Incompetence and Estrangement; F.C. DeCoste, The Official as Subject in Hart and Dworkin: Cowardice and Aestheticism [unpublished manuscripts available from author]. 4 C. Taylor, Overcoming Epistemology in K. Barnes et al., eds, AFrER PHnosopHy: END OR TRANSFORMATION (Cambridge: M.I.T. Press, 1987) at 464, 470- 73.

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RADICAL DISCOURSE IN LEGALTHEORY: HART AND DWORKIN

Frederick C. DeCoste*

The point of critique is not justification but a different way of feeling:another sensibility.

Gilles Deleuze,

I. INTRODUCTION

Dominant legal theory is positivist because it conceives of itselfand of legal practice epistemically.2 But an epistemic vantage is notits only distinguishing feature. Dominant theory is also defined by anumber of moral and political consequences which follow ineluctablyfrom its epistemic self-conception.3 Charles Taylor contends that somevery specific consequences of this sort follow necessarily from "themodem conception of knowledge". 4 This is so, he argues, because an

* Faculty of Law, University of Alberta. I am indebted to Hans Mohr ofOsgoode Hall Law School for his help and especially his encouragement with thiswork.

I G. Deleuze, Nmrzci-m AND PmLosopHy, trans. H. Tomlinson (London,Athlone Press: 1983) at 94.

2 That is, dominant theory declares itself positivist because it views legalpractice as a knowledge practice and legal theory as a demonstration that a practiceof that sort is possible. See FC. DeCoste, Retrieving Positivism: Law as Bibliography(1990) 12 DALHOUSiE L.J. [forthcoming] [hereinafter Retrieving Positivism], where Iargue that dominant legal theory, including especially the work of Hart and Dworkin,is positivist precisely because it defines an epistemic project for both legal theory andlegal practice.

3 That is, legal theory is positivist not only because it conceives legal theoryand legal practice in epistemological terms, but also because such a conceptionimplicates certain moral and political consequences.

There are, I believe, three such consequences. An epistemic view first requiresthe privileging of epistemic competence and the degradation of the incompetent andtheir estrangement from practice. Second, it effects the closure of legal discourse andrenders the moral and political life of practice incontestable. Finally, it defines officialsas epistemic subjects and, in so doing, renders them moral cowards and defines theirpractice as one of aestheticism. In this essay, I deal with the second consequence. Ideal elsewhere with the first and the third. See EC. DeCoste, Citizens in LegalTheory: Incompetence and Estrangement; F.C. DeCoste, The Official as Subject inHart and Dworkin: Cowardice and Aestheticism [unpublished manuscripts availablefrom author].

4 C. Taylor, Overcoming Epistemology in K. Barnes et al., eds, AFrERPHnosopHy: END OR TRANSFORMATION (Cambridge: M.I.T. Press, 1987) at 464, 470-73.

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"epistemological construal" of knowledge constitutes a "moral ideal"which carries inescapable "moral and spiritual consequences". 5

I do not wish to parse Taylor's argument nor do I intend todefend it in any specific fashion although if my analysis is persuasive,it would, I think, serve as a partial and localized demonstration. I willinstead take Taylor's suggestion as a point of departure for making anargument with respect to one such consequence that follows from legaltheory's epistemic construal of legal practice.

In this essay, I argue that dominant legal theory's conception oflaw as a knowledge practice defines legal practice as a practice ofmaintenance and reproduction which necessarily sediments a settledand incontestable social world. I argue, that is, that dominant legaltheory prohibits radical discourse. I use the term radical in the samefashion as does Judith Shklar - as denoting "the belief that peoplecan control and improve themselves and collectively their social en-vironment". 6 Dominant legal theory, I contend, forecloses such a beliefbecause it makes its practice unthinkable.

In Part I, I argue generally that epistemological views of practice- including especially of legal practice - "totalize" a practice'smoral and political life and discourse, not only because such a viewnecessarily seeks to justify the present form of the practice, but moreprofoundly because it pursues this end in a fashion which at oncecolonizes and trivializes the good.7 In Parts II and II1, I seek todemonstrate that consequences of this sort inhere in positivist legalliterature. I should make two comments with respect to this secondstrategy. First, with respect to authors, I will read Hart and Dworkin. 8

I read Hart because his CONCEPr 9 is the central, agenda-setting proc-

5 Taylor also contends that these consequences in turn implicate certainpositions in moral, social and political theory, ibid. at 470-72, 480-81.

6 See J.N. Shklar, AFTER UTOPIA: THE DECLINE OF POLITICAL FArrIH (Prince-

ton: Princeton University Press, 1957) at 219: "Radicalism is not the readiness toindulge in revolutionary violence; it is the belief that people can control and improvethemselves and collectively their social environment. Without this minimum of utopianfaith, no radicalism is meaningful."

So conceived, radicalism is really a variety of utopianism. See, e.g., M.Ignatieff, THE NEEDS OF STRANGERS: AN ESSAY ON PRIVACY, SOLIDARITY AND THE

PoLICs OF BEING HUMAN (New York: Viking, 1984) at 19: "Utopian thought is adream of the redemption of human tragedy through politics."

7 I appropriate this term, for my own purposes, from Foucault or, moreaccurately, from the Dreyfus and Rabinow commentary on Foucault. As I deploy it,the term means simply the practice of ordering and organizing everything: see H.L.Dreyfus & P. Rabinow, MICHEL FOUCAULT: BEYOND STRUCTURALISM AND HERME-NEUTICS (Brighton: Harvester Press, 1982) at xxii, 201-03.

8 I do not, of course, mean to imply that other positivist theorists cannot beread in a similar fashion. The incident which, in this essay, I seek to disclose in Hartand Dworkin is, for instance, easily read in both Austin and Kelsen.

9 H.L.A. Hart, THE CONCEPT OF LAW (Oxford: Clarendon Press, 1961)[hereinafter CONCEPT].

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lamation of modem positivism in terms of which alone later work,including Dworkin's, is intelligible;'0 I read Dworkin because legalpositivism has, I believe, come fully of age with his EMPIRE." Sec-ondly, and more generally, I adopt the strategy of close reading inorder to avoid mere allegation. Much recent critical scholarship hasbeen criticized for mistreating the literature with which it deals.12Critical scholars, it is said, manipulate and fail to take seriously thetexts they read and, in consequence, theirs is a scholarship of accu-sation and not of analysis. I believe that much of this criticism iswarranted, but not necessarily in the spirit in which it is made. In myview, it is critical to listen carefully to texts because inattention ismore likely to produce either repetition or reverie than is serioustextual engagement and because analysis is more likely to permittransformation than is allegation. In this essay, I attempt to listen.

10 For instance, the legal academy's recent turn to interpretive theory makessense, I believe, only if one views law, as did Hart, as communications (ibid. at121ff) towards which one adopts what he termed the internal point of view (ibid. at55-56). See Law And Literature: A Symposium (1982) 60 TEXAS L. Rnv. 373;Symposium on Interpretation (1985) 58 S. CAL. L. REv. 1. Indeed, Hart himselfthinks just this, for he later termed as "hermeneutic" the method appropriate to theinternal perspective. See H.L.A. Hart, ESSAYS IN JURISPRUDENCE AND PHILOSOPHY(Oxford: Clarendon Press, 1983) at 14.

11 R. Dworkin, LAW'S EMPiRE (Cambridge, Mass.: Harvard University Press,1986) [hereinafter EMPIRE].

12 See, e.g., W. Ewald, Unger's Philosophy: A Critical Legal Study (1987-88) 97 YALE L.J. 665 at 665, 691, 702, and 754 (arguing that the version ofliberalism which Unger criticizes is a "straw-person" because "it is dubious that [itwas] ever held by anybody at all" and attributing Unger's mistake to his being "incontrol neither of the literature he cites, nor of his own arguments"); B. Langille,Revolution Without Foundation: The Grammar of Scepticism and Law (1987-88) 33McGRL L.J. 451 at 486 n.162 (submitting that "the legal theorists under attack as'mainstream' or 'liberal' all hold more sophisticated theories about legal reasoning,the requirements of legal certainty or determinacy, and the ideal of the rule of lawthan those ascribed to them"). See also J. Stick, Can Nihilism Be Pragmatic? (1986-87) 100 HARVARD L. Rnv. 332 (commenting that "many observers have noted thatstrong critics in assembling the target of 'liberal' law for destruction engage in theexercise of constructing a 'straw-man'); M. Krygier, Critical Legal Studies andSocial Theory - A Response to Alan Hunt (1987) 7 OxFoRD J. LEG. STUDIEs 26 at28 (arguing that in critical characterizations of liberalism, "the arguments of indivi-duals are rarely analysed singly or at length but are briefly and abstractly characterizedand dissolved into the one, antinomy-ridden portrait" and that the "claims attributedto them.. .are at times the opposite of what [they] believed"); and J.M. Finnis, Onthe Critical Legal Studies Movement (1984-85) 30 AMEmiCAN J. JURISPRUDENCE 21at 42 (arguing that Unger "distorts our human situation as that situation is understoodin the social theory of Aristotle and... Aquinas").

More hopeful responses to critical scholarship, especially Unger's, have, ofcourse, also been offered. See Unger Symposium (1987) 81 NORTHWESTERN UNrVER-srry L. REv. 589; and R. Rorty, Unger, Castoriadis and the Romance of a NationalFuture (1988) 82 NORTvHWESTERN UNIVERSITY L. REv. 335 at 351 (arguing, amongother things, that Unger's work "has a better chance than most to be linked, in thehistory books, with some.. .world-transforming event").

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II: THE NATURE OF EPIsmMIc PRACTICE

Epistemological projects such as positivism constitute and producetruth claims. There are, the epistemolog claims, answers which areright as a matter of the special competence of those who search forand find them. A number of things follow from this proposal. First,and most obviously, the practice of answer-finding and the answersfound together form a practice of justification. Secondly, and moredeeply, truth and rightness - the true and the good - becomeconflated. Finally - and as a consequence, I think, of the first twoimplications - the social life of the practice, its objective field,becomes incontestable because it necessarily becomes fully occupiedby, and fully the object of, the epistemic. I shall deal briefly with each.

To declare that answers are right by virtue of methodologicalcompetence is to announce as correct both the methodology itself andthe products of its deployment. It is to declare that each is, in somefashion or another, in accordance with truth (or, as alternatively put,with reason or with fact) and that truth and method are, therefore,interdependent and interconstitutive. The epistemic is justificatory justfor this reason: unavoidably and as part and parcel of its self-under-standing, it is a demonstration that its deployment is ineluctable 3 andthat its consequences are necessary. Neither is contingent because eachis a truth-matter.

When, as in law, the methodological object is social and politicallife, and the methodologues are the courts, all of this is to declarevery much indeed.14 Not only does the configuration of the life of thepolity become, as a matter of correctness, the object of a special andprivileged methodological competence,15 it thereby also becomes en-tirely a matter of epistemic necessity and never a matter of contingentchoice. This is so axiomatically: if truth is methodological, and if amethodology of correctness is available with respect to the form ofsocial and political life, then social and political life is a matter oftruth and, in consequence, always a matter of discovery and never amatter of creation.' 6

13 Or if not ineluctable, then at least the only true alternative.14 This is not to deny that the epistemic is always a grand pronouncement or

that it has always a social geometry as an incident. It is merely to say that law asepistemology is different to the degree that its ambitions are imperial.

15 See Retrieving Positivism, supra, note 2.16 We shall see shortly it is also, for this reason, beyond contest and occludes

altarity. I should add that I mean here only to assess the consequences of positivismas an epistemic proposal and project. I argue elsewhere that law as positivity hasincidents somewhat similar to those we are now discussing. Those incidents, however,arise from an entirely different source and are unassociated with law being incidentallyconceived epistemologically. See EC. DeCoste, Meanings of Law: Law as CivilStrategy and Law as Cultural Praxis [unpublished manuscript available from author].

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Positivist legal consciousness is a practice of justification inprecisely this sense. Judicial actors17 conceive of their transactions withthe world (in-the-legal-text) epistemically: what they are about indealing with the world is knowing the world. And because this is so,their practice is justificatory and never critical. In their very conceptionof knowing, they must represent the world as necessary because it iscorrect and as correct because it is true: for them, the world is notonly inevitable, but right. And because it is right, not only it, but themethodology of right practice - their practice - becomes justified.18

However - and this begins the second point - the positivistproposal is significant not only because it consists entirely of truthclaims but also, and more profoundly, because of the manner in whichthose claims are made. The moral and political import of positivistpractice is to be found not merely in its being a legitimization dis-course, but in how that discourse conceives itself as practiced - inthe fashions in which it undertakes and accomplishes its task. Positiv-ism declares that there are right answers because legal truth is meth-odological: the right answer is the answer which accords with the truthwhich method alone discloses. The world, the truth of which positivismdiscloses, is the legal text. 19 I want now to suggest that positivism, inconsequence, conflates the true and the good in two distinct andimportant fashions.

It does so first quite directly and simply because the truth impli-cates the good. The truth is good not because there are no alternatives, 20

but because of the character of those alternatives - they are false.The truth simply is superior to the false; because it is, that which isdisclosed as true is itself superior and good and that which is rejectedas false is inferior and bad.

Yet there is another less direct - and more specifically method-ological - way in which the true becomes the good. Simply, theepistemic is imperial morally because it declares some values asjustifiably a part of the cognitive canon. It does not matter ultimately

17 I deal here only with the judicial and not with the legislative simply becausepositivist consciousness is generally conceived by positivists as distinctively judicial.I deal elsewhere with the legislature: See EC. DeCoste, Desire and the Word:Interpreting Law as Interpretation [unpublished manuscript available from author].

,2 Peter Gabel has offered an analysis which is similar to mine in a numberof respects. See P. Gabel, Reification in Legal Reasoning (1980) 3 REsEARCH IN LAw& SocioLoGy 25 at 30-32: "In his very way of knowing the social world, the judgerepresents it as natural and it is precisely his intention to show, in the manner of thenatural scientist, that the social world follows certain law."

He attempts to show, that is, "that what is, is inevitable, universal, timeless:the facts of life".

19 See Retrieving Positivism, supra, note 2.20 Indeed, in the legal positivist incarnation of epistemology just the opposite

is the case: there are alternatives precisely because texts are so fecund. See ibid.

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which values are canonized, 21 but an epistemic project must declareand cognitively encompass some values. This is so because otherwisethe project becomes both pointless and impossible. It would be point-less because it would then have no purpose: that is, unless the cognitivefield is embedded with values, there exists no reason for cognitivegazing. More importantly, it would be impossible, for a cognitive givenis impossible to conceive without the constructing weave of value. Forwithout such a yam, a world cannot come to view: it would be afabricless form and because it is formless, meaningless and unman-ageable. 22

This interpenetration of the cognitive and the good, and the shiftsback and forth between the two, has a grand resonance in the positivistconsciousness of the world-in-law. The social production of judicialpractice thereby becomes viewed not merely as inevitable because itis true, but as true because it is good. Positivist methodology thustransfigures itself from an ordered search for the right to a practice ofthe good: our social and political lives have the form they have because,in the final analysis, they are the forms of the good which have beendiscovered and designated methodologically.

This takes me to my final point. Because it is an epistemicproposal, positivism views the forms of social and political life itspractice produces 23 as inevitable because they are both true and good.Inevitability so conceived leads necessarily, I will now propose, toincontestability. By incontestable, I mean simply beyond dispute orcontestation; I will argue that the configuration of social life, as viewedand defined by positivism, is incontestable in just this sense becauseit is held to be morally and veridically certain.

First then, whence this certainty? It is not just a semantic matter- the social production of positivism is not thought certain simplybecause positivism defines it to be so. Clearly positivism is such adefinition; but what is important in terms of incontestability is not thedefinition itself, but the consequences that definition has in terms ofthe unavailability of moral space that alternative definitions require.Simply, because positivism occupies and claims as its own the wholeof truth and the whole of the socially and politically significant good,

21 This is not to say that their selection is haphazard. On the contrary, thevalues chosen are a statement of epistemic purpose. For this reason science, forinstance, embeds in its cognitive field values such as simplicity, scope and cogency.See T.S. Kuhn, THE STRuruRE OF SciNTmc REVOLUTIONS, 2d ed. (Chicago:University of Chicago Press, 1970) at 115ff [hereinafter STRUCTURE OF SCmNTIFICREVOLUTIONS]; and N. Goodman, WAYS OF WORLDMAKING (Hossacks, U.K.: Har-vester Press, 1978) at 18-19.

22 My point here is, of course, reminiscent of Kuhn's notion of paradigms asan "entire constellation of beliefs, values, techniques and so on": STRUCTURE OF

ScmNTIFc REvoLUTIONS, ibid. at 175.23 Again, a caution: the judicial is but a part of the productive process. I deal

elsewhere with the positivist view of the other, legislative part: See supra, note 17.

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there remains in the polity no geography in and from which to mounta contest. This, I think, is obviously the result of positivism's truthclaim. If the consequences of positivist practice are true, then alter-natives are false and the only ground for contest is, therefore, alsofalse. But the claim of goodness is more significant, because whenpositivism - as it must - claims the values which it embeds in itscognitive field, it is at once colonizing part of the good and trivializingthe rest.

To announce some values to be cognitively significant is to declarethose values superior. It is to declare, that is, that they are properlythe object of cognition - properly part of the true and, in consequence,of the good. In this fashion, the good becomes occupied by and theobject of the epistemic. It too is discoverable; it is discoverable becauseit, too, is assayable methodologically.

Together these claims to moral and veridical certainty constitutewhat I earlier referred to as the totalization of social and political lifeand discourse.2 4 There is no place beyond the epistemic because theepistemic orders, and by ordering, encloses and constitutes, the wholeof the significant. The rest (and there is, indeed, and must be, aremainder)2 becomes a chaos of insignificance which, even if speak-able, 26 can never be spoken with purpose; such a discourse is beyondpurpose because it is beyond the true and the good. And because it iscondemned from the beginning to insignificance, it can never championa contest - the valid cannot be invalidated by that which is invalidityitself.

This is just the incontestability that is borne of the epistemic: bysimultaneously colonizing, taming and trivializing the good, it makesresistance an empty, because valueless, gesture. True, resistance ispossible,27 but it can never be effective because resistance is necessarilywithout that - a language of truth and goodness - which alone couldmake it significant.

III: HART AND THE CLOSURE OF POLITICS

Hart's theory prescribes a practice of justification which renderssocial and political life incontestable in just these fashions. I shall dealfirst with his theory's justificatory aspects because they arise from his

24 See supra, note 7.25 This is so because truth requires the false, the good, and the bad. Indeed,

it is only because false and bad alternatives are available that the true and the goodcome to view. See supra, note 20, where I mention this necessity with reference tothe fecundity of texts.

26 And it must be speakable if only because the insignificant - which iscomprised of the false and the bad - is necessary.

27 If only because the false and the bad are forever present.

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more general theory of law. I shall then consider the dimensions ofincontestability these foundations implicate in his theory of legalreasoning and interpretation.

A. Legal Values: Coherence and Acceptance

In none of the various stated conceptions of his enterprise2s doesHart appear to think it value-based. Indeed, he would seem to professjust the opposite view. By proposing to analyze "the distinctive struc-ture" of legal systems 29 so as to lay bare their "foundations" 30 and todistinguish them from other "types of social phenomena", 31 his wouldappear to be a descriptive and, in consequence, value-free undertaking.I want to argue that this is not at all the case and that Hartian theoryis, from the very beginning, constructed from the twin values ofcoherence and acceptance. The first value is associated with Hart'sview of the minimal form and content of a legal system; and thesecond with his theory of legal rules and the notion of legal actorshipwhich it defines. These values combine to make Hart's a theory ofjustification which, as we shall see, tends to render incontestable legaldiscourse and practice.

1. Coherence

Hart develops his concept of law in conversation with his con-ception of the "social structure" of "primitive communities". 32 Ac-cording to Hart, the social structure of a primitive community is "oneof primary rules of obligation" 33 and "only a small community closely

2 Hart appears to make three different claims with respect to his enterprise.The first is empirical at least in its import: He claims that ordinary language analysiscan produce a "descriptive sociology" which discloses "important distinc-tions... between types of social situation or relationships": See CONCEPT, supra,note 9 at Preface. His second claim is anthropological - i.e., that to move from apre-legal to a legal regime, every society must introduce secondary regulation (seeCONCEPT, supra, note 9 at 92, 165; and infra, note 32). His final claim is heuristical(see CONCEPT, supra, note 9 at 95, 151 and infra, note 32). He claims that hisparadigm will explain the distinctive difference between legal systems and other rule-based, behaviour regulating systems; the nature of legal rules; and the distinctiveprocess of legal reasoning.

29 Ibid. at 17.30 Ibid. at 97.31 Ibid. at 17.32 Ibid. at 89. One cannot be certain whether Hart is making an anthropological

claim in this conversation or whether he is merely using the simple society as anexpository device. In either event, however, the result I here claim is the same -his concept of law is in origin and yield value-laden because it seeks to correct statesof affair which his notion of simple community alone discloses as problematic.

33 Ibid.

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knit by ties of kinship, common sentiment, and belief, and placed ina stable environment, could live successfully by such a regime". 34 Inany other circumstances, he tells us, "such a simple form of socialcontrol must prove defective". 35 Hart develops his theory of secondaryrules - the appearance of which signifies the apparently anthropolog-ical "step from the pre-legal into the legal world" 36 - in reference tothese defects. Indeed, he conceives secondary rule regulation as theremedy for the defects of a simple social structure; it is on the basisof that remediation that he later proposes the "union of primary andsecondary rules" 37 as both the "centre" 38 and the "essence" 39 of law.

Now, neither that proposal nor his argument for it matters here.My concern, rather, is his assessment of the defects of a regime ofprimary regulation because that assessment discloses the first of Hart'sfounding values. Simply, for Hart, a "form of social control" 40 can-constitute a legal system if, and only if, it both values and displayscoherence.41

Hart contends that a simple regime of primary rules suffers fromthree defects - uncertainty, stasis and inefficiency.42 It is, first of all,uncertain because it can provide no "procedure"43 for determiningeither the existence or scope of a rule. No procedure is possible,according to Hart, because a regime of primary rules lacks order.Because it lacks order, it cannot "form a system" 44 and must, instead,comprise a disparate "set of separate standards, without any identifyingor common mark". 45 Secondly, a regime of primary rules has a "staticcharacter" 46 because it can provide "no means. . . of deliberatelyadapting the rules to changing circumstances, either by eliminating oldrules or introducing new ones". 47 Finally, rule maintenance in such aregime is inefficient both because "no agency [is] specially empoweredto ascertain finally, and authoritatively, the fact of [rule] violation",and because "punishments for violations . . . are not administered by

34 Ibid.31 Ibid. at 90.36 Ibid. at 91, 165. See also supra, notes 28 and 32.37 Ibid. at 96.38 Ibid.39 Ibid. at 151.40 Ibid. at 90.41 Coherence, of course, is not a sufficient condition; there must also be

acceptance, at least by officials, and general obedience.42 Supra, note 9 at 89-96.43 Ibid. at 90 [emphasis added].44 Ibid.45 Ibid.46 Ibid. [emphasis in original].47 Ibid. [emphasis added].

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a special agency".48 Like the first, the latter two defects arise from alack of procedure begot by an absence of systemization. 49

Hart offers secondary regulation in remedy of these defects: therule of recognition cures uncertainty, the rules of change, stasis andthe rules of adjudication, inefficiency. These rules are remedial pre-cisely because they systematize primary rules. They systematize notonly because they provide a procedure for dealing with primary rules,50

but also because the procedure they provide is conclusive.5 That is,the system that secondary rules create is not only orderly, it is coherent;and it is coherent because it is characterized by a self-referencingcompleteness and finality.

Now this coherence, which Hart thinks to be "the heart of a legalsystem" 52 does not appear unassisted. It is only because Hart firstadopted the simple society as a point d'appui that the defects whichhe purports to cure even appear; had he, instead, commenced from adifferent point, different features would have emerged. Uncertainty,stasis and inefficiency do not appear as problems pre-theoretically; nor,obviously, are certainty, ordered change and efficiency cures pre-theoretically. On the contrary, both the problems and their curesimplicate a theory for, and in terms of, which they are values. All ofwhich is merely to say that coherence is a value because it is perspec-tive dependent.

I mentioned earlier that coherence is a value in terms of theminimal content of law as well as in terms of its minimal form. Iwant now briefly to deal with coherence in that aspect before I proceedto discuss coherence as a value more fully. Hart introduces his notionof minimal content during his discussion of the primitive society.53 Wehave already seen that in Hart's view, such a society can succeedunder a regime of primary rules only if it is both closely knit geneticallyand spiritually, and otherwise situated in a stable environment.54 But

48 Ibid. at 91.49 Ibid. at 93, 95. Hart describes the rules of change and of adjudication as

defining "the procedure to be followed": See ibid. at 93.5o Ibid. at 91-92. For this reason secondary rules are different in kind from

primary rules: They are rules "about" primary rules. Hart identifies two dimensionsof difference - the nature of the activity regulated (primary rules regulate naturalactivities and secondary rules, rule-related activities) and the nature of the regulation(primary rules are duty imposing rules and are backed by sanctions, whereas secondaryrules are power conferring and are sanctionless).

51 Ibid. at 92. Secondary rules, he contends, "specify the ways in which theprimary rules may be conclusively ascertained, introduced, eliminated, varied, andthe fact of their violation conclusively determined". [emphasis added]

52 Ibid. at 95.53 Ibid. at 89. In addition to Chapter IX, which we come to shortly, Hart also

raises legal content during his discussion of justice and morality: See ibid. at 167,169, 176.

54 Ibid. at 89-90.

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that is not the only condition which must be met: "[G]ranted a few ofthe most obvious truisms about human nature and the world we livein", a regime of primary rules must also "contain in some formrestrictions on the free use of violence, theft and deception".5 5 Whereasthe other conditions for the success of primary rule regulation fadeaway with the introduction of secondary regulation,5 6 this conditionpersists, and it persists because the predicates from which the conditionarises - those "obvious truisms" 57 concerning human nature and theworld in which human beings live - also persist because they areindependent, at least, from the form of law.5 8 So long as they do exist,a legal system must meet a second threshold condition: it must containcertain substantive primary provisions responsive to certain "naturalfacts" about and the "natural aims" of human beings; namely, "min-imum forms of protection for persons, property, and promises". 59 This,of course, means that law must also display a certain minimal ordersubstantively; coherence, therefore, is a value not only formally, butin terms of content as well.

Its origin now established, I wish next to consider more carefullycoherence as a value. So far I have indicated that coherence is anordering which seeks to be conclusive because it is both complete andfinal. However, this fails to capture the matter fully. We can beginwith order. By valuing order, one is valuing, as is Hart, certainty -a state of affairs which is settled and determined. Coherence is a formof order characterized by the nature and extensiveness of its settledness.

55 Ibid. at 89. While only this condition goes to content, there is yet another:The primary rules must be efficacious in the sense that a majority obeys them.

56 Excepting, of course, efficacy.S7 Supra, note 9. Hart's argument is, in fact, slightly more complex. It runs

like this: Given, first, certain "natural facts" about humans (namely, their vulnera-bility, approximate equality, limited altruism, limited resources and limited understand-ing and force of will) and given, secondly, humans' "natural aims" (namely, theirsurvival), the law must, as a matter of "natural necessity", have a certain minimalcontent; namely, "minimum forms of protection for persons, property and promises":Supra, note 9 at 181-95.

58 1 say at least because Hart appears undecided with respect to the status ofhis natural facts: While they are indeed truisms, they are not "necessary truth[s]; forthings might have been, and might one day be, otherwise": Ibid. at 190. His syllogismis, therefore, expressly "contingent on human beings and the world they live inretaining the salient characteristics which they have": Ibid. at 195.

59 Ibid. at 195. Hart never makes explicit the nature of this compulsion. Anargument is, however, available to him and it arises from the second condition hethinks requisite for success under a regime of primary rules; namely, that it beefficacious. This condition too is independent from legal form and for a legal systemto exist, its primary rules of obligation "must be generally obeyed": Ibid. at 100-01, 113. If this is so, and if "the minimum purposes of beings constituted as menare", (ibid. at 195) what Hart says they are, then a minimum content responsive tothose purposes and that constitution becomes requisite because otherwise personswould have no reason to obey.

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I referred to this earlier (as does Hart) as conclusiveness. Conclusive-ness, I indicated, occurs when a state of affairs is complete and finalbecause it is self-referencing. Coherence, in this sense, is accomplishedthrough closure: a system becomes coherent when - through closure- it comes to refer only to itself. Conclusivity, therefore, adds thedimension of inevitability to the certainty which the system exists toprovide: not only is the system complete and final qua system, it isalso unavoidable because it excludes any means - at least any meansinternal to the system 60 - by which it can be avoided. 61

2. Acceptance

Coherence and acceptance are symmetrical values. 62 It only mat-ters that a system is coherent if it is certain and inevitable forsomeone.63 Hart creates denizens for his system through his theory oflegal rules and the theory of legal actorship which the rule theory, inlarge measure, implicates. I shall argue that together these theoriesdisclose acceptance as a second founding value of Hartian theory. Iwill then explore the meaning of acceptance as a value and proposethat it demands unity.

Early along in CONCEPT, Hart introduces his notion of a socialrule.64 A group, he says, follows a social rule, when and only when:a) its members behave in a regular way; b) deviations from thisbehaviour are regarded as lapses, criticized and met with pressure toconform; c) the criticism referred to in "b" is regarded as justified;and d) at least some people take the internal point of view. Thisdefinition is foundational to Hart's enterprise in two fashions. First, itserves as a basis for his definition of obligation65 which, in turn, is

60 We shall later discuss whether this internal closure has effects external tothe system.

61 By way of caution, I should stress again that rules of change and ofadjudication too are responses to the value of certainty and, in consequence, contributeto closure: See supra, note 51 and accompanying text.

62 And, as we shall shortly see, it is precisely this symmetry which makesHart's a theory of justification.

63 Otherwise, of course, the system would be desuetude and while it could yetbe said to exist, such an assertion would be "generally pointless": Supra, note 9 at100-01, 247.

64 Ibid. at 54-55. Hart's social rule theory is the first of four arguments hemakes to his sunmative statement (ibid. at 113) with respect to the conditions whichare both necessary and sufficient for the existence of a legal system. The secondargument concerns the existence of obligations (ibid. at 80-85); the third, the socialneed for obligation imposing rules; and the fourth, the insufficiency of obligationimposing rules and the need for secondary regulation.

65 According to Hart (ibid. at 80-85), one has an obligation when and onlywhen: a) there is a rule as defined requiring one to do x; b) that rule is enforced byserious social pressure; c) that rule is believed necessary to the maintenance of sociallife or some prized feature thereof; and d) it is generally recognized that there is apossibility of conflict between what the rule requires and what the individual wantsto do.

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foundational to his argument with respect to both the necessity66 andinsufficiency 67 of duty-imposing rules. It is foundational, secondly,because it serves to distinguish Hart's project inasmuch as his entiretheory becomes defined by, and in a large and critical measure de-pendent upon, the distinction between the internal and external pointsof view. It is the second which concerns us here. I argue elsewherethat the internal/external distinction serves to create a cleavage betweenofficials and citizens in terms of how each need relate to the legalsystem. 68 I want here to examine more closely the nature of theofficial's and the citizen's relation to the system.

The internal aspect of rules defines one way of relating to thelegal system. 69 By adopting the "critical reflective attitude" that isconstitutive of the internal point of view, one is declaring a normativeacceptance of the legal system. 70 Acceptance displays itself in "alle-giance to the system" 71 precisely because the critical attitude is directed

66 As we have seen, primary rule regulation is necessary because given "afew of the most obvious truisms about human nature and the world we live in" (ibid.at 89), human life would be otherwise a rather grim affair: See ibid. at 89, 169, 176,191. 67 Primary regulation alone is insufficient because it produces a social order

which is uncertain, static and inefficient: See ibid. at 89-96 and supra, note 49 andaccompanying text.

68 See supra, note 2.69 For Hart's definition of the internal perspective, see CONCEPT, supra, note

9 at 55-56, 86.70 Ibid. at 56, 59-60, 64, 86-87. This is not, however, to say that the internal

point of view is the moral point of view. Indeed, Hart holds just the opposite view:That while the internal point of view is necessarily normative, it is only contingentlymoral. It is normative because it is "committed" in the sense that viewed from theinternal perspective, rules are "standards for the evaluation of the conduct of othersto whom they apply": See, H.L.A. Hart, ESSAYS ON BENTHAM: STUDIES IN JURISPRU-DENCE AND POLITICAL THEORY (Oxford: Clarendon Press, 1982) at 160 [hereinafterESSAYS ON BENTHAM]. Yet it is not for that reason necessarily moral because,according to Hart, one may adopt this point of view for reasons other than moralreasons and, indeed, for no reason at all: Ibid. at 158-59; and CONCEPT, supra, note9 at 198-99. And, in consequence, the moral point of view is really "irrelevant" tothe internal point of view: See generally ESSAYS ON BErTHAM.

This may seem curious given the form of practice, particularly hostility (seeCONCEPT, ibid. at 88), which the internal point of view requires. However, this is acuriosity of substance. By distinguishing between the normative and the moral, Hartis attempting to maintain the traditional positivist view that moral debate and criticismof law is possible precisely because there is something beyond and outside of law. Idiscuss this matter at length below: See infra, note 96 and accompanying text. Hart'sclaim in this regard had produced a long running debate between himself and JosephRaz: See CONCEPT, ibid. at 153-61, 264-68; J. Raz, PRACTICAL REASON AND NORMS(London: Hutchinson, 1975) at 123-29, 146-48, 162-77; J. Raz, THE AUTHORrrY OFLAW: ESSAYS ON LAW AND MORALrr (Oxford: Clarendon Press, 1979) at 153-57; J.Raz, THE CONCEPT OF A LEGAL SYSTEM: AN INTRODUCTION TO THE THEORY OF LEGALSYSTEM, 2d ed. (Oxford: Clarendon Press, 1980) at 234-38; J. Raz, THE MORALrrYOF FREEDOM (Oxford: Clarendon Press, 1986) at 22-28; and J. Raz, Hart on MoralRights and Legal Duties (1984) 4 OxFoRD J. LEG. STUDIES 123 at 129-31.

71 CONCEPT, ibid. at 198.

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not toward the legal order, but toward how its membership relates tothat order.72 Acceptance is, from this perspective, a form of practiceconsisting of allegiance. That practice takes two forms. First, and withrespect to one's own relation to the system, one seeks to maintain thesystem both by seeing one's behaviour in terms of the rules whichconstitute the order and, more affirmatively, by voluntarily co-operatingin perpetuating those rules. 73 Allegiance also requires a certain formof practice with respect to the behaviour of others. Persons who takethe internal point of view will demand of others that they too conformto - and, thereby, contribute to the maintenance of - the rules. 74

When others fail to comply with that demand, when they violate therules, the internal point of view will be a "reason for hostility"towards them.75

According to Hart, only "the officials or experts of the system" 76

need relate to the legal order in these fashions. 77 It may appear,therefore, that the value I am proposing informs Hart's theory only inpart, and that the symmetry I say pertains between coherence andacceptance is illusory. I do not think either conclusion follows. It is,of course, true that Hart does not require non-officials - those heterms "ordinary citizens"78 - to relate to the system from an internalpoint of view. Indeed, it may even be true that, in most societies, hethinks they will not. 79 But citizens are not, for either reason, any lessaccepting in fact (if not, of course, normatively) of the social order.

72 Ibid. at 56.73 Ibid. at 88. Persons who take the internal point of view, Hart tells us, both

"voluntarily co-operate in maintaining the rules" and "see their.. .behaviour in termsof the rules".

74 Ibid. at 56.75 Ibid. at 88, 10. I will argue that the allegiance which the internal point of

view requires and produces, informs the whole of social life - if one relates to thesystem in these fashions, one sees not only one's own behaviour, but the behaviourof all other persons in terms of the system's rules. The rules become, for such aperson, both the "guide" (ibid. at 10, 88) and the "reason" (ibid.) for relations withthe world; social practice, in consequence, becomes consumed by the rules. Sociallife, that is, becomes "a life... in terms of rules" (ibid. at 87) and its sole value,the maintenance and perpetuation of the rules which guide it and of which it iscomprised.

76 Ibid. at 59.77 Ibid. at 113.78 Ibid. at 59, 113.79 Hart's view on this matter is inconsistent. At some points, he appears to

think (for no stated theoretical reason) that "a healthy society" (ibid. at 113) is onein which citizens also adopt the internal vantage and accept the rules as normativestandards of social practice. At still other points (ibid. at 88), he implies that theinternal point of view will be adopted by those "who normally are the majority ofsociety". Yet, throughout he declares that "acquiescence" (ibid. at 60, 86, 112, 114)will more likely be the citizen's response to the way of the social and legal order.Indeed, at least at one point (ibid. at 114), he seems to imply that where there is aunion of primary and secondary rules, the "ordinary individual" will as a rulepassively acquiesce.

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This is so because Hart still requires that citizens obey the law;80

indeed, their obedience is its whole purpose and its "end product".81

Obedience, in consequence, constitutes a second way of relating to thelegal system. I will argue that this way, every bit as much as theofficial way, discloses acceptance as a value.

According to Hart, if one does not adopt an internal point ofview, one necessarily adopts an external point of view. 82 He character-izes the internal point of view as one of acceptance which he definestheoretically along the lines we have just discussed. 83 He fails, how-ever, to offer any parallel account of the external point of view. Indeed,Hart seems to define the external merely and exclusively as the absenceof the normative acceptance of the internal.84 He does, however, havemuch to say about the phenomenon of obedience which is necessarily8 5

the practice of those members of a social order who adopt the externalperspective, and we may gather from these pronouncements an under-standing of the second way.

According to Hart, the practice of persons who obey rules andwho do not otherwise (and contingently)86 adopt an internal perspectiveis acquiescence. 87 Nowhere does he clearly define what he means byacquiescence; 88 but if he intends to contrast acquiescence with accep-tance,89 then acquiescence must mean an assent which is absent thenormative enthusiasm characteristic of the internal point of view. Ifthis is so,90 then acquiescence is a practice of unprotesting consent to

80 Ibid. at 113.81 Ibid. at 109.82 Hart's dichotomy raises the interesting and critical question whether these

perspectives exhaust the points of view which it is possible to adopt with respect toa social order. I do not pursue the matter in this form here. However, an inquirycould appropriately begin by asking, first, whether normative acceptance necessarilyexcludes criticism and, second, whether even if it does, the other perspective needbe that of either a disengaged observer or one who rejects the system.

83 See supra, note 69 and accompanying text, and supra, note 9 at 55-56, 86-88.

94 Ibid. at 86-88.85 Ibid. at 112: Necessarily, because while those who must obey may, as a

contingent matter, adopt an internal perspective, their obedience is not defined by thatcontingency.

86 See supra, note 85.87 Ibid. at 60: "The ordinary citizen manifests his acceptance largely by

acquiescence in the results of these official operations". See also, ibid. at 114: "[T]heacceptance of the rules.. .may be split off from the relatively passive matter of theordinary individual acquiescing in the rules...".

88 Often, however, he equates acquiescence with obedience: See, e.g., ibid. at197: "[T]he existence of a legal system... involves the attitudes and behaviourinvolved in the voluntary acceptance of rules and also the simpler attitudes andbehaviour involved in mere obedience or acquiescence"; since obedience meansminimally "compliance" (ibid. at 19), acquiescence is a form of compliance.

89 And he must: See ibid. at 112.90 And it must be so: See Hart's discussion of the attitude of the obedient,

ibid. at 88, 112.

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the configuration of the social order. This consent may arise from merehabit91 or from prudence, 92 but its effect is, in either case, the same.Like those who adopt the internal perspective, those who adopt theexternal perspective defer to the existing form and substance of legaland social life. Only the form of the deference differs - some accept,many acquiesce.

Acceptance, for this reason, entails unity.93 The denizens of Hart'sworld-in-law are united in their assent to the legal order. That assentmay or may not constitute a practice of approval; but it must, anddoes, constitute a practice of uniformity.

B. Theory as Justification

Hart, I believe, is a positivist in the enlightenment tradition. 94 Bydistinguishing between law and morality,95 he sought to leave the"sense. . .that there is something outside the official system. . .byreference to which" that system and the social order it creates andsustains could be evaluated. 96 I also believe, however, that Hart failedin this effort.

I will argue that the values of coherence and acceptance; thevalues foundational to his enterprise, make Hart's a theory which cansupport only the justification of social order and practice. They carrythis result because they exclude the possibility of a practice of criticism.Criticism is impossible, I will argue, because there is nothing (at leastof significance) for the critic to say in Hart's world and because evenif there were, there would be no one to speak it.

1. The Absence of Vocabulary

I have already argued that the certainty which Hart seeks for thelegal system is achieved through a closure worked by his insistencethat a legal system have a minimal form and content. I want now tosuggest that the effect of closure is to make the conclusivity of thesystem unassailable because a vocabulary of assault will either beunavailable or, if available, insignificant.

91 Ibid. at 54, 56.9 Ibid. at 88, 112.93 Hart at one point indicates that a unity of this sort is definitive of the state:

Ibid. at 52.94 See ibid. at 181-82, 205-07; and N. MacCormick, H.L.A. HART (Stanford:

Stanford University Press, 1981) at 158-62.95 CONCEPT, ibid., c. IX.96 Ibid. at 206. [emphasis added]

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To begin, I will recite three central Hartian premises. The firstconcerns the effect on morals of the introduction of secondary regu-lation.97 According to Hart, when this "step from the pre-legal intothe legal world is taken,. . [the] contrast between legal and otherrules [including moral rules] hardens into something definite". 98 Thisis so, he tells us, because "[t]he primary rules of obligation identifiedthrough the official system are now set apart from other rules, whichcontinue to exist side by side with those officially recognized." 99 Theeffect, then, is to distinguish legal from moral rules: legal rulesbecome, by definition, those which, because they are officially en-dorsed, are authoritative within the legal system.

The second and third premises concern the nature of the relation-ship which Hart thinks pertains between legal rules and the moral ruleswhich continue, at least notionally,100 to exist outside the legal system.On the one hand, while generally these moral rules bear no necessaryrelationship to the legal system, a legal system may as an empiricaland, therefore, contingent matter, "reproduce" 10' or "correspond" 10 2 tomoral rules. 03 The range of this contingency is endless, although (andthis is worthy of note) Hart appears to think that in modem legalsystems, the "ways in which law mirrors morality are myriad". 104 Yet,as we have seen, the general quality of the relationship does notpreclude there being, in a limited context, a necessary relationship.For "if it is to be viable,"105 a legal system must contain "certain rulesof conduct" which provide "minimum forms of protection for persons,property and promises".106

I want to begin with the second premise. It declares that therelationship between law and morals will fall at or between twoextremes. At one extreme, law and morality may be synonymous; atthe other, there may be no relationship between the two save for thereproduction of the minimal content necessary for the system's viabil-ity. Thus, in a circumstance where the first extreme is met, there willobviously be no language beyond law on which to found a practice ofcriticism. In such a case, all discourse would be internal to the systemand, since legal discourse requires either acceptance or acquiescence,

97 In a simple society, there may be no "clear distinction.. .between legal andmoral rules": Ibid. at 165.

98 Ibid.99 Ibid.

100 1 say notionally because Hart's first premise with respect to the relationshippermits that, as a contingent matter, law and morals may be synonymous. I discussthis possibility below.

1) CONCEPT, supra, note 9 at 181.102 Ibid. at 170.103 See generally ibid. at 170, 181-82, 199.'04 Ibid. at 199.105 Ibid. at 188.106 Ibid.

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such a discourse would necessarily be non-critical and orthodox. Butwe cannot found an argument on that extreme alone since Hart appearsto think that the relationship will normally fall somewhere betweenthe two extremes. 1 7

Let us suppose, therefore, that law and morals are not, as acontingent matter, synonymous and that, instead, law bears no rela-tionship to morality (nor morality to it) save for the minimal corre-spondence. I want to inquire whether, in such a circumstance, themorality which Hart claims exists "outside the official system", 108 canfound a practice of criticism. Hart thinks it can.10 9 I will attempt toprove him wrong.

First we have to become clear about Hart's concept of morality.While the introduction of secondary regulations creates the distinctionbetween legal and non-legal rules, it does not, without more, distin-guish moral from other non-legal rules o or, for that matter, moralrules from legal rules with which they share so much. Hart distin-guishes moral from other non-legal rules both in terms of the "impor-tance [which] is attached" to moral rules", and in terms of the "manysimilarities" which moral rules alone among the non-legal rules, haveto law.'1 2 Moral rules are like legal rules in both form and content.Both, that is, are framed in language of obligation and duty; theobligations and duties which each prescribe are, in consequence, "man-datory" and prohibitory.113 This kinship between law and morals iscritical to Hart because it causes him to seek first to distinguish lawfrom morality "in spite of these similarities",11 4 and then to define amorality which, in spite of the similarities, permits criticism.

Hart thinks that law and morals are different despite their simi-larities because "there are certain characteristics which [they] cannotshare"." 5 He identifies four such characteristics:1 6 importance (allmoral rules, but not all legal rules, are important in the sense that"compliance with them secures vital interests which all share alike");117

107 See generally ibid. at 199. See also ibid. at 166, where Hart states, "[in]all communities there is a partial overlap in content between legal and moralobligation..

108 Ibid. at 206.109 Ibid. at 163, 178-79 and 201-07.110 Such as rules of etiquette or of games. See ibid. at 166, where Hart offers

a general characterization of non-legal rules.I"' Ibid.112 Ibid.113 Ibid. at 177.114 Ibid. at 168.Is Ibid.116 Ibid. at 169-76. I deal with Hart's distinctions briefly and only to the extent

that they are important to my subsequent argument.117 Ibid. at 170.

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immunity from deliberate change (moral rules, unlike all legal rules, 118

"cannot be brought into being or changed or eliminated. . .by humanfiat");" 9 the voluntary character of moral offenses (unlike legal rules,blame, in the case of moral rules, "is. . .excluded [if the offender]has done all that he could do");120 and the special form of moralpressure (unlike law where "the typical form of .. .pressure... consist[s]in. . .threats", moral pressure "is characteristically. . .exerted. . .byreminders of the moral character of the action contemplated and of thedemands of morality").121

Having thereby established a separate domain for morality, Hartseeks next to construct "forms"' 2 2 of morality which will, in part orin whole,123 found the "moral criticism of society" he desires.124 Hedivides morality into the two general categories of "accepted socialmorality" and "wider moral ideals".125 "Moral obligation and duty arethe bedrock of social morality"' 2 6 - one wants to say the core 27 -and is comprised of "prohibitions of conduct" cast in the languageand "structure of mandatory.. .obligations and duties" which are "rec-ognized in the actual practice of social groups". 28 The first form ofmorality, in other words, consists of those parts of morality which aremost like legal rules. 29

But moral rules, in this sense, "are not the whole" of morality130

because there are, according to Hart, "forms of morality which extendbeyond the accepted shared morality".' 3 1 These "moral ideals"' 32 maybe either private or public. Private ideals are "values. . .pursued byindividuals" which the individual "need not either share with others

118 This includes law's minimal moral content, although if those laws wereeliminated, the system would, according to Hart, cease to be viable.

119 CONCEPT, supra, note 9 at 171. This is so, according to Hart, becausemoral rules, unlike legal rules, are necessarily "ingrained": See ibid. at 172.

120 Ibid. at 173.121 Ibid. at 175. According to Hart, "all social rules and standards which, in

the actual practice of a society, exhibit [these] four features" are moral.122 Ibid. at 176.23 It is not clear whether Hart thinks all morality can found what he calls "the

moral criticism of society". I will argue below that of the categories he identifies,only one could possibly be a candidate for the criticism he desires.

124 Ibid. at 179.25 Ibid. at 199.

126 Ibid. at 176.127 The "wider moral ideals" are, according to Hart, "[t]he further reaches of

morality" (ibid. at 178) and this is not unlike the relation his theory of interpretationsupposes exists between "a core of settled meaning" and the penumbra of meaning(ibid. at 140). See also infra, note 231 and accompanying text.

128 Ibid. at 177.129 This, we shall presently see, is in part responsible for disqualifying accepted

morality as a language of criticism.,30 CONCEPT, supra, note 9 at 176.131 Ibid. at 177.132 Ibid.

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or regard as a source of criticism of others, still less of society as awhole". 133 On the other hand, public ideals are public precisely becausethey are related to accepted morality, and because they can, therefore,be used "in the moral criticism of society itself".134 They are relatedto accepted morality in the same fashion as virtue is related toobligation. They are, that is, ideals of "qualities of character" whichdemonstrate "the ability and disposition to carry forward beyond thelimited extent which duty demands". 135 Virtue, in this sense, can taketwo forms - either an "exceptional devotion to duty" or "the pursuitof substantive moral ideals in the face of special temptation or dan-ger". 1

36

We must now ask whether any of these forms of morality canprovide the language necessary for a critical practice. Hart's privatemoral ideals cannot, I think, provide such a language.137 Hart, remem-ber, added a caveat to his definition of private ideals. Because theyare ideals recognized and pursued by individuals, private ideals neednot be shared with others nor, more to the point, need they be regardedby the individual who adopts them "as a source of criticism of others,still less of society". 138 There is good cause for this caution. First,private ideals, at least as identified by Hart, are specialist and idiosyn-cratic, and, in consequence, to the extent that they could be used insocial criticism, their deployment would be insignificant.139 Second,and more critically, Hart marginalizes private ideals theoretically. Theyare "analogous to some of [the ideals] recognized in the moralityof.. .society", but the analogy is "not one of content; it is one ofform and function". 140 Private ideals may look like those ideals which"take the form of social criticism", 141 but they do not, for that reason,take that form themselves, because their content and function is

133 Ibid. at 179.134 Ibid. at 178.135 Ibid.136 Ibid.137 Nor apparently does Hart. When introducing his discussion of private ideals,

he says: "[N]ot all extensions of morality need take the form of social criticism":Ibid. at 179.

138 Ibid. If this is so, then at least with respect to private ideals, one need notadopt a fully internal attitude, since the critical attitude will not extend to the behaviourof others.

139 Ibid. "Lives", as he says, "ruled by dedication to the pursuit of heroic,romantic, aesthetic or scholarly ideals or, less agreeably, to mortification of the flesh."I am, incidentally, not admitting that private ideals, despite their specialty andidiosyncrasy, could found criticism. Indeed, it may well be that they would beunintelligible when used for that purpose. My point here, rather, is that even if theycould be so used, the critical language they would provide would be insignificantbecause special and idiosyncratic.

140 Ibid.141 Ibid.

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restricted to the private "life of individuals".142 If it be possible at allthen, the practice of "the moral criticism of society" 143 must befounded on the public - upon either accepted moral rules or thepublic moral ideals which relate to these rules.

Hart appears to believe that criticism means "denunciation";therefore, when we criticize, we are engaging in a practice of blamingor accusing social arrangements as defective in some fashion or an-other.144 This, of course, means that critics must profess some standardto which they claim the law must "conform" and in terms of which itmay be blameworthy.145 Accepted morality and public moral ideals areHart's candidates for the standard of criticism. I will argue that neitherof these qualifies and that Hart, in consequence, falls to provide thefoundation necessary for critical practice.

Accepted social morality is disqualified for reasons of both formand content. The moral rules which constitute this morality are, wemust first remember, the non-legal rules which are most like legalrules, because they share with legal rules a distinctive form andstructure. Like legal rules, they are cast in a vocabulary of duty andobligation; like legal rules, they declare prohibitions as mandatory. 146

According to Hart, moral rules may, despite these formal similaritiesto legal rules, found a criticism of law - laws may be "condemnedas morally bad 147 because they fail to conform, either positively ornegatively,148 to the obligations raised by moral rules. This proposalmakes a certain sense. There are, after all, two vocabularies, and onecould be used to refer to the other. I want to suggest, however, thatthis sense - and the practice it would inform - is both trivial andshallow. Of what, after all, would such a discourse consist? Clearly, Ithink, it would be comprised exclusively of claims to substitution -the critic would be condemning the law only in the sense and only to

142 Ibid. at 180.143 Ibid. at 178.144 Ibid. at 179. This is so, of course, by implication only. It is necessary to

construct his view of criticism by implication because, notwithstanding that much ofhis work arises from a desire to prove it possible, Hart did not conceive of his taskin CONCEPT as "the criticism of law": See ibid. at Preface and 201-07.

I should add that I accept Hart's view for the purpose of present argumentonly, and that I do not thereby mean to endorse his view in any fashion. On thecontrary, because I believe that criticism is a constructive practice, I do not at allbelieve that accusation captures, or indeed, that it is always necessary for, criticism.For an excellent discussion of critical practice in the context of social science, seeB. Fay, CRITICAL SOCIAL SCIENCE: LIBERATION AND ITS Lirrs (Ithaca, N.Y: CornellUniversity Press, 1987) at 23, 29-30, and 99-101.

145 CONCEPT, ibid. at 201.146 Ibid. at 166-68 and 176-77.147 Ibid. at 163.148 Positively if a law "require[s] men to do particular actions which morality

forbids" and negatively if a law "require[s] men to abstain from doing [actions]which are morally obligatory": Ibid.

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the degree that the moral obligations in question ought to be substitutedfor the legal obligations in question. This is so because legal andmoral rules are so similar, and because, in consequence, a contestbetween them can only consist of a claim that one and not the otherought to govern. But if this is the practice, it is trivial because it isso narrow and shallow - because, that is, it is so void of aspiration.Criticism would become possible only in those circumstances where acontest of this sort appeared and even in those instances, it wouldconsist exclusively of demands for replacement.149

However, this does not conclude matters because a practice ofeven this limited sort may be unavailable. This will be so at least tothe extent that moral rules and legal rules are necessarily synonymousand completely to the extent that there are either no moral rules ornone of significance beyond that identity. Moral and legal rules arenecessarily synonymous if the "vital interests" which moral rulessecure are synonymous with the minimal moral content of law.' 50 Thiswould appear necessarily to be the case since Hart's "natural necessity"argument for minimal correspondence arises from the same premise asdoes his argument with respect to the importance of moral rules,namely, that all persons share alike the interests in question.15' If thisis the case, then no criticism is possible with respect to a wide rangeof some very elemental aspects of "the arrangements of society", 152

including most notably private property and security and state enforce-ment of private promises. 153

Accepted morality can found criticism, then, only if it containsobligations in addition to those replicated by law's minimal contentand if obligations of the sort are not otherwise and contingentlyreproduced in the system's primary rules. 154 Hart is largely silentregarding the content of accepted morality beyond the vital interestswhich he thinks universal because "essential to the survival of anysociety".155 He does attempt a classification of the "fundamental" kindsof morality which appears to separate moral rules into two sorts: those

149 This absence of aspiration becomes all the more pronounced if one remem-bers that, according to Hart, moral rules are experienced largely as a given by themembership of any society - they cannot be changed or eliminated by "human fiat"because they are so "ingrained" in a society's consciousness: Ibid. at 171-72.

SO Ibid. at 170.151 Ibid. Hart appears to recognize just this. There are, he says, certain

"protections and benefits... which [underlie] both law and morals": Ibid. at 195.152 Ibid. at 178.153 Ibid. at 195.-5 I have restricted my inquiry to the minimal extreme of correspondence

between law and morals. If, however, Hart is correct and law "mirrors" morality ina "myriad" of ways, then the substance of all "points" of influence will also bebeyond criticism: Ibid. at 199.

15 Ibid. at 167.

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which attach to all members of society,156 and those which attach onlyto some, according either to those members' role or function. 157 If thisis a composite picture of the architecture of accepted morality, thentwo things, I think, follow: first, it is clear, if only by definition, thatthere are indeed moral rules beyond those which accepted moralitynecessarily shares with law; second, it becomes obvious that thoseadditional rules cannot provide a vocabulary for significant criticism.

My concern is the second implication which arises because of theprivate character of moral rules of this variety. By private I meansimply that rules of this sort concern matters having less to do withthe structure of society and more to do with the conduct of persons inparticular roles and situations. Hart refers to a number of rules of thiskind - for instance, "the duties of a father or husband to care for hisfamily"158 - and cites the "moral regulation of sexual behavior" as"the most prominent aspect of what plain men think morality to be". 159If, indeed, the rules which constitute accepted morality are, in additionto its universal and necessary content, rules of this kind and concern,then accepted morality cannot provide a vocabulary of any criticalsignificance. This is so simply because those rules are not concernedwith "the arrangements of society"160 and because the concern theydo have, namely, conduct in its personal and private aspects, is largelyinconsequential to the conduct of political affairs, at least as conceivedby Hart. 161 The situation of society, rather, is fully contemplated bythe minimal content of law and morality. If, with Hart, we conceiveof criticism as denunciation, then moral rules concerning private con-duct can provide no vocabulary for the criticism of most of the affairsof polity and can, instead, at best, provide demands for substitutionin those instances where a contest contingently emerges between thoserules and legal rules.

Nor, finally, do public moral ideals provide a vocabulary forsignificant criticism. This is so because "even here important connex-ions remain with the primordial social form of morality"' 62 and be-cause, in consequence, moral ideals talk is both necessarily reformistand, in its highest expression, formalist. Moral ideals are connected

156 These are of two sorts: "general obligations" which always attach (forinstance, "to abstain from violence") and "special obligations" which attach byvoluntary action (for example, promise making). Together they comprise the minimalcontent of both law and morality: Ibid.

157 These apparently comprise the contingent content of accepted social moralitywhich "may vary from society to society": Ibid.

158 Ibid.159 Ibid. at 170.160 Ibid. at 178.161 I add this caveat because moral rules of this sort can obviously be the

object of a critical practice of the more sophisticated sort to which I referred earlier:See supra, note 144.

162 CONCEPT, supra, note 9 at 178.

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with accepted morality because they are both formed and informed bythat morality. They are, first of all, formed by accepted moralitybecause, as we have already seen, 163 moral ideals are, by definition,virtuous forms of "the primary mandatory forms of social obligationand duty". 164 According to Hart, virtue so conceived, contemplatestwo forms of practice - either "exceptional devotion to duty" or "thepursuit of substantive moral ideals". 165 Because, however, each arisesfrom accepted morality, neither practice is critical. On the contrary,both are for that reason reformist, and reformist in such a fashion andto such a degree that moral ideals add nothing of appreciable signifi-cance to the practice already available in terms of accepted morality.

Take first a devotional practice. It must be devoted either to thenecessary and universal content of accepted morality or to its contingentcontent. Such a practice could demand only two things: that, wherethe law already recognizes these moral rules, it represents them moreadequately or that, where the law does not recognize them or recog-nizes contrary values, it corrects this. A devotional practice would bereformist. It would not criticize at all to the extent that the lawadequately contains the minimal moral content (and it is this contentthat is elemental to societal arrangements). To the extent that itcriticized inadequacy in respect of minimal content or failure ofrepresentation with respect to additional rules, it would claim merelyaggrandizement or substitution.

Hart's second practice does not salvage criticism because the"substantive moral ideals" 166 which are its substance also relate toaccepted morality, albeit in a more reified and formalist fashion. By"substantive moral ideals" Hart means rationality and generality. 67

These ideals require two things: first, "that social arrangements. . .notrest on beliefs which can be shown to be mistaken";168 second, thatthe rules that constitute the arrangements of society be applicable toall. 169 Moral ideals do not, for either reason, cease to relate to acceptedmorality. This is so because the ideals of rationality and of generalityare not merely about rules; they are, rather, "a version of these, refinedand extended so as to meet the two demands". 170 Nor, for this reason,do they offer a critical practice; just the contrary - discourse of thisformal sort will, in the main, consist of demands for application ofthe rules. When it consists of anything further - as, for instance,

163 See supra, note 136 and accompanying text.164 CONCEPT, supra, note 9 at 178.165 Ibid.166 Ibid.167 Ibid.168 Ibid. at 179. See also ibid. at 201.169 Ibid.170 Ibid. at 179.

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when a belief is "shown to be mistaken"171 - it will be comprisedmerely of demands for elimination. This appears less critical a practicethan the claims for substitution characteristic of the discourse providedby both accepted morality and devotional practice.

If my argument is correct, Hart's division of law and moralityhas failed its purpose, because it fails to provide the required something"outside the official system" 172 by which that system can be signifi-cantly criticized. So far I have framed that argument in terms internalto Hart's discourse by arguing that his discourse fails him. I wish nowto relate that failure more explicitly to the characteristic of closurewhich, I earlier argued,173 is the result of his theory's valuing ofcoherence. Closure, I suggested, is a consequence of coherence becausecoherence requires that a system refer only to itself, that it be conclu-sive. I also argued that a closed system becomes inevitable because itexcludes any means, at least internal to itself, by which it can beavoided. I now want to suggest that closure has much the same effectexternally and that this is demonstrated by Hart's failure.

There are at least two separate points in his narrative 74 at whichHart acknowledges that legal systems are often impervious to the moralcriticism he thinks possible. "[M]unicipal legal systems", he says whendiscussing the criticism of law, "have long endured though they haveflouted.. .principles of justice". 175 Nowhere, however, does he providean analysis of this phenomenon. I wish briefly to provide an analysiswhich relates the insignificance of the criticism he offers to the closureof legal systems that his theory requires.

Legal systems become closed, we must first remember, onlybecause Hart so values systematization and the conclusivity that char-acterizes it. Absent that value, or some other value that would bringthe same result, there is no reason why legal systems should or mustbe closed. If the closure of the legal order is then a value enterprise,we may intelligibly ask whether that enterprise also has effects externalto the system and, more particularly, whether it makes discourseexternal to the system insignificant, at least as it regards the system.I want to propose that it does and that external discourse is necessarilyinsignificant critically, precisely because it lacks conclusivity, the solevalue which the system considers significant.

A system's values, in this case certainty, are imperial in just thisfashion - they create and protect the system by systematically deni-grating external discourse as valueless, just because it is external.17 6 It

171 Ibid. Since Hart offers nothing with respect to how a social arrangementcould be shown to rest on a mistaken belief (mistaken, after all, with respect towhat?), this further discourse may be rare indeed.

'7 Ibid. at 206.173 See supra, note 62 and accompanying text.174 CONCEPT, supra, note 9 at 201.175 Ibid.176 And because it does not, therefore, share the value.

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is not only that the legal system is supreme internally and independentfrom other systems, 177 but rather that other systems are not independentfrom it because they are debilitated by it.

2. The Absence of Speakers

Even, however, if this were not the case and even if, in conse-quence, there were a vocabulary - at least external to the system -by which it could be criticized, that would not make Hart's theory onethat permits a critical practice. The effect of his second founding valueacts to depopulate the legal world in critical terms in such a way thatthere can be none to speak the vocabulary or to undertake the practice.

We saw previously 17s that Hart's world-in-law is populated byofficials and citizens who are united in their deference to the legalsystem. Because they must adopt the internal point of view, officialsmust accept the system normatively; because their obedience is its"end product", 79 citizens must, at least,180 acquiesce in the system.Officials, in consequence, are by definition precluded from engagingin critical practice - theirs is always and fully181 a practice ofjustification because justification is part and parcel of "the notion ofan accepted rule".1 82 If, therefore, there are to be critical actors, citizensmust be able to qualify for that role. I want now to suggest that Hart'stheory makes any such audition pointless.

According to Hart, citizens acquiesce in law either because ofhabit or because of prudence. He also, we have seen, 183 believes thata critical practice of "resistance"184 is possible "outside the officialsystem".185 My view is that he cannot have it both ways, and that byrequiring citizens to acquiesce in either of these two fashions, he isprecluding them from acting critically.

Let us first take acquiescence occasioned by habit. Hart discusseshabit in two different contexts, neither of which goes directly or

177 CONCEPT, supra, note 9 at 24: "The legal system. . .is characterized by acertain kind of supremacy within its territory and independence of other systems....[emphasis Hart's]

178 See supra, note 92 and accompanying text.179 CONCEPT, supra, note 9 at 109.180 Citizens may, as a contingent matter, adopt an internal point of view, but

their way of relating to the legal system is defined by their obedience and not bythat contingency: See supra, notes 79 and 86 and accompanying text.

181 We shall discuss this matter at some length below. It is sufficient for presentpurposes to realize that official - and particularly judicial - practice is justificatoryeven where it permits choice: See CONCEPT, supra, note 9 at 200.

182 Ibid. at 73.183 See supra, note 108 and accompanying text.184 CONCEPT, supra, note 9 at 205.185 Ibid. at 206.

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expressly to our concern.186 We can, however, gather from his com-ments in those contexts his more general view of obedience by habitwhich would have to inform his notion of acquiescence by the manybecause of habit. The first thing that we can gather is that Hart isconfused about the whole matter. The habit of obedience, he tells us,"is an essentially vague and imprecise notion" which shares with "theidea of obedience" much "complexity".187 He does, however, identifyat least two of the elements of habit. Habit, he says, is a regularityof conduct'88 - here, compliance - which is "unreflective, effortless,[and] engrained".189 If this is so, then citizens who acquiesce by habitcannot possibly found a critical practice because they are, by definition,non-critical. Criticism, as Hart appreciates, 190 requires a very specificlis, namely, that obedience become a normative problem. Only ifobedience becomes problematic can the critical questions and distancerequisite for critical practice emerge; since, for the habitual, obedienceis unproblematic, it cannot become for them a matter of criticalconduct. 191

Nor, for similar reasons, can the prudent engage in critical prac-tice. The prudent "are only concerned with [legal rules] when andbecause they judge that unpleasant consequences are likely to followviolation". 192 Theirs, therefore, is a calculated acquiescence. However,it is not, for that reason, critical, because obedience has, for theprudent too, none of the problematic aspects necessary for criticism.Like the somnambulism of habit, prudence is unreflective preciselybecause it does not constitute a normative position. 193

Neither category of the obedient, then, has cause for resistancebecause each is normatively and critically passive with respect to theway of the world-in-law. Since, however, the obedient are the obedientprecisely because they share the external point of view, this should notsurprise. Passivity, after all, is characteristic of that point of viewbecause each "obey[s] [the rules] for his part alone"' 194 and is uncon-cerned with the larger normative aspects of the life of the polity.

Before concluding this part, I should mention one other possiblesource of critical actors in Hart's world. I refer to those whom Hartdescribes as "a minority of hardened offenders".195 This minority would

186 He discusses habit in his argument for his theory of social rules (see ibid.at 9-12 and 54-59) and in his argument with respect to the inadequacy of theAustinian version of law (see ibid. at 23-24 and 49-64).

187 Ibid. at 50.188 Ibid. at 51.189 Ibid.190 Ibid. at 206-07.191 Ibid. at 58. According to Hart, "habits are not 'normative' "192 Ibid. at 88.193 In his definition of the internal aspect, Hart is entirely correct in equating

reflectiveness with normativity: See ibid. at 56.194 Ibid. at 114.195 Ibid. at 55.

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consist of those who both reject the system and do not calculatinglyacquiesce. 196 Hart, unfortunately, does not deal with this minority atany length. He does, at one point, indicate that "the life of any societywhich lives by rules. . .is likely to consist in a tension between thosewho. . .accept. . .and those who. . .reject the rules. . .".197 While thisis suggestive of many things, Hart pursues none of them. He fails totell us either why the minority would reject the rules or why theirrejection would produce tension. He also fails to identify the kind oftension it would produce. There are, however, good reasons for thisoversight. Since general obedience is one of the conditions necessaryfor the existence of a legal system, Hart's minority is really outsidethe legal system and its conduct is, from the system's perspective,truly pathological. 19SAny critical practice which the minority mayundertake is, in consequence, insignificant unless it results in revolu-tion. 199 Even then, however, its impact is insignificant systemicallybecause the result of revolution is not structural - it is merely tosubstitute one regime of officials for another. The dialectic of obedienceand acceptance would remain, necessarily, the same.200

C. Incontestability: Harmony and Integration

Coherence and acceptance, and the dimensions each begets, existnot only in symmetry, but in an absolute harmony. They are not merelyinterrelated parts of a whole; their agreement, one with the other, isthe whole. Law has an "enduring and settled character" 20' preciselybecause of this "congruence" 202 between coherence and acceptance,and between the system's closure and the unity with which it isaccepted. Indeed, according to Hart, a legal system is that congru-ence;203 it therefore makes sense to say, as he does,204 that a system ispathological just to the extent and degree that that congruence isabsent.

196 Although at some points Hart appears to think the prudent must also rejectthe rules (see, e.g., ibid. at 88), there is no reason why this ought to be the case.Like the habitual, the prudent may relate to the system in the way that they do simplybecause they have not adopted the normative stance of the internal. But their failureto accept the rules in that sense does not necessarily entail a rejection of the rules ina critical or, for that matter, a descriptive sense.

197 Ibid. at 88.198 See generally Hart's discussion of revolution: Ibid. at 114-16.199 Ibid.200 This is so because a legal system is defined in terms of that dialectic: Ibid.

at 113.201 Ibid. at 24.202 Ibid. at 114. As put by Hart, "the two sectors are congruent... The rules

recognized as valid at the official level are generally obeyed."203 Ibid.204 Ibid.

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Harmony in this sense means that a legal system is a fullyintegrated whole. It can be possessed of the symphonic wholeness Hartrequires of it only because and to the extent that it occludes difference.It is this integration that renders incontestable Hart's world-in-law.Because it is fully integrated, there is nothing and no one to contest.No new sensibility is possible because there is neither a place nor apersona for such a sensibility.

D. Reasoning Legally: The Practice of Incontestability

"[T]he courts", Hart tells us, "are charged with the responsibilityof determining what the law is".2 05 In order to permit them to dischargethat responsibility, Hart offers a theory of legal reasoning whichincludes a theory of legal hermeneutics. In this part, I will argue thatthose theories disclose judicial practice to be one of incontestability. Iwill make this argument, not in terms of the internal (and, therefore,accepting) attitude which judicial actors must display,20 6 but in termsof the theories which Hart thinks must inform a practice of that sort.I take this tactic because it is in his theory of reasoning that the "day-to-day" 20 7 incontestability of legal practice is best disclosed.

For courts to determine what the law is, they must, according toHart, be able to both identify and interpret the rules of which it iscomprised. 208 Hart attempts to inform theoretically each of these aspectsof judicial work. He offers his theory of a secondary rule of recognitionin support of the practice of rule identification and his theory ofinterpretation in support of the practice of meaning discovery. Boththeories show judicial practice to be an undertaking which is incon-testable both in method and in yield.

1. The Practice of Identification: Authority and Validity

Hart claims that a rule of recognition is foundational to a legalsystem;209 I will argue that if this be so, then legal systems arefoundationally incontestable.

205 Ibid. at 59. This, incidentally, can be construed as another instance ofHart's denigration of the law-making portion of the positivist version. I discuss thismatter in detail elsewhere: See supra, note 17.

206 Although an argument along these lines could obviously support the assertionthat judicial practice is justificatory.

207 CONCEPT, supra, note 9 at 109.208 This is so foundationally. Because the courts are rule followers (see ibid.

at 132 and 150), it is necessary that they be able to identify which rules are legalrules (see ibid. at 97-107) and because legal rules are communicated textually (seeibid. at 121) it is necessary that they be able to interpret the rules so identified (seeibid. at 127-32).

209 Ibid. at 97.

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The rule of recognition, Hart tells us, identifies which rules ofobligation210 and of procedure 211 comprise the law. It is critical, how-ever, to understand how it accomplishes this identification and to whateffect. A system's rule of recognition is, we must first recall, distinctivein purpose and status from all other rules in the system. Its purposeis to declare the criteria by virtue of which those other rules are rules.Unlike those other rules, which exist as law because they are validaccording to the rule of recognition, the rule of recognition is outsidethe system's chain of validity212 and exists only in the sense that it ischaracteristically observed by officials.2 13 While its existence is, there-fore, an "empirical" matter and "a question of fact", 214 the rule cannotbe reduced entirely to custom because Hart requires that it provide asource of law other than custom. 2 5 We may, therefore, define the ruleof recognition as a statement216 of a custom practised by officials withrespect to the valid sources of law.

Hart's rule, for this reason, conflates validity with authority andit is this conflation which first marks the incontestability bred of therule of recognition. The logic of the conflation is easy. The law is thatwhich is valid because conclusive;217 it is that which is conclusivebecause ultimate;218 and it is that which is ultimate because practisedby officials. Easy, too, is the incontestability this requires. Law be-comes a matter of truth defined by the practice of officials recognizingthis, and not that, as an indicium of truth. To the extent that truth andauthority thus become one, law is incontestable.

There is another aspect. Hart's version of the rule of recognitiondoes not permit that there be an instance where no rule applies orgoverns. On the contrary, he assumes that while there may be difficultyin ascertaining what an identified rule means, there will never 219 beany difficulty in identifying the rule which applies. Notionally, at least,a legal system is, in consequence, seamless - there is always a rulewhich applies.220 Because this is so, the world-in-law is fully occupied;

210 Ibid.211 Ibid. at 95.212 Ibid. at 104.213 Ibid. at 98, 104-05, 107-08, 245.214 Ibid. at 245.215 Because it must specify criteria: See ibid. at 97.216 The statement may be issued either by external observers or by officials

themselves: See ibid. at 99-100.217 Ibid. at 100. It must pass "all the tests provided by the rule of recognition".218 There is, after all, no other basis for assessing legal validity: See ibid. at

103-04.219 Or only rarely. See Hart's discussion of uncertainty of the rule of recognition

(see ibid. at 144-50). That discussion does not, however, defeat my present pointbecause it is directed at doubts regarding official custom and not at all at whetherthere is something to be identified.

220 The only point which may be at issue is what that rule means. I will addressthat matter below.

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as a matter of theory, there is no place for contestation becausecontestation makes no sense.

If my argument is correct, the law is incontestable because thereis always law and because what is law can always be validly, becauseauthoritatively, identified. I wish now to turn to Hart's theory ofinterpretation which is often thought22' to provide an open contestabilityborn of an absence of constraint. I shall attempt to show this view tobe misconceived.

2. The Practice of Interpretation: Truth and Virtue

Hart thinks that legal actors, especially judicial actors, face twovarieties of cases, those that are simple and those that are hard. 222 Itis not, however, certain - at least not immediately - why he thinksthis. Clearly, easy cases223 are cases in which a legal rule is determinateand a result follows syllogistically; likewise, a hard case224 is one inwhich the rule is indeterminate and a choice is required by the official.However, to come at all to terms with his proposal, we must inquirewhy rules are sometimes determinate and sometimes indeterminate.

The difficulty in Hart is that his general theory of language is somixed with his theory of interpretive practice with respect to rule-following, that the answer to this inquiry becomes hidden. His theoryof language is very much a statement of the English philosophy oflanguage current when he was writing,25 and according to whichlanguage is both immediately settled at some points and open-texturedat others. 226 His interpretive theory, on the other hand, is convention-alist - whether a term applies may be a matter of convention producedand practiced by relevant actors. 227 "The open texture of law" 228 maybe due to either proposal; a rule may be indeterminate either becauseits language is open-textured or because no convention exists as to itsapplication. Viewed in this fashion, an easy case is one in which the

221 See, e.g., R. Dworkin, TAKING RIGHTS SERIOUSLY, 2d ed. (London, U.K.:Duckworth, 1978), at 31-39.

222 Hart introduces this dichotomy very early along in CONCEPT, supra, note 9at 12, although he reserves a full discussion until chapter VII. Incidentally, I followHart in assuming that my argument applies equally to statute and precedent: Supra,note 9 at 124, 131-32.

M Ibid. at 123-25.24 Ibid. at 124-27, 131-32.225 1 am here referring to ordinary language philosophy: See, e.g., G.J. War-

nock, ENGLISH PILOSOPHY SINCE 1900 (London: Oxford University Press, 1966) at10-19, 35-40.

226 Or, as put by Hart, it has both "a central core of undisputed meaning" and"a penumbra of uncertainty" because "there is a limit, inherent in the nature oflanguage": CONCEPT, supra, note 9 at 12, 123.

227 Ibid. at 123-131. I use "may be" because his conventional theory onlycomes into play in the penumbra.

228 Ibid. at 132.

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language is closed or, even where it is not, one regarding which thereis consensus with respect to its application, and hence meaning, inthis case. Conversely, a hard case is one in which the language of therule is open and there has been no successful prior choice with respectto its meaning in this instance. 229 Because language has always "afringe of open texture", 230 every legal rule may be indeterminate atsome point, although it need not be;231 whether it is or not will depend,of course, on whether a consensus exists among officials regardingmeaning. If no such convention exists, the application of the rule willbe hard and will require that the official involved make a choice withrespect to the meaning of the rule in this instance.

It is on the basis of this version of matters that Hart constructshis theory of judicial practice concerning us here. According to Hart,the nature of the practice varies according to whether the case is simpleor hard. Where the case is simple - where, that is, the governingrule is determinate because the case is subsumable under the rule'slinguistic or conventional core - judicial practice is legal in a propersense because it is determined and its product is a discovery. Where,however, this is not true and the case is, in consequence, a hard one,judicial practice is merely judicial because it must involve a choiceand is, therefore, creative.2 32 I want now to argue that under neitherform of practice is its conduct or outcome at all contestable.

This is obviously the case with respect to legal reasoning. It is,by definition, incontestable because it is, by definition, a demonstrationthat the decision -is "uniquely correct". 233 It can be so because it isdetermined, 234 a closed syllogism which "cannot be challenged withinthe system". 235 No challenge is possible because the practice could nothave been any other - it is driven not by choice, but by "discovery". 236

229 Which is to say, there has been no choice which has become conventionalbecause accepted: Ibid. at 149-50. Hart attributes the absence of consensus to "twoconnected handicaps" which we "labour under .. .whenever we seek to regu-late... some sphere of conduct"; namely, "our relative ignorance of fact" and "ourrelative indeterminacy of aim": Ibid. at 125.

230 Ibid. at 130. Open texture is, he says, "a general feature of humanlanguage": Ibid. at 125.

231 I am disregarding here the implication that, notionally at least, every legalrule is indeterminate at some point in its history conceived in terms of time - i.e.,if all human language is open textured at some conceptual point, there must be apoint chronologically at which that openness is first encountered.

232 Hart implies the distinction between legal and judicial reasoning at numerousstages: See especially supra, note 9 at 144, 200. I will argue below that the twostand in a defined relation to one another - namely, that legal reasoning is a subsetof a style of reasoning that is judicial.

233 Ibid. at 200.24 It does not matter if it is determined by the inherent quality of language

(the core) or by convention (which has resolved an uncertainty in the penumbra).235 Supra, note 9 at 142.236 Ibid. at 149.

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Hart thinks that "the vast, central areas of the law" 237 are closed inthis fashion; for him "the life of the law" 238 is characterized byincontestability. Indeed, incontestability is, for him, "a necessary con-dition of a legal system existing". 239

Nor is judicial practice any less closed or incontestable where, asa result of the limits of language and a failure of consensus, the rulesare indeterminate. True, judicial reasoning is, in those instances, "cre-ative",240 but it is reasoning nonetheless and it is neither arbitrary norits outcomes chaotic. This is so because in order for choice to bejudicial at all, it must be "an informed, official choice".241

Not surprisingly, Hart thinks judicial choice to be informed andconstrained by both language and convention. It is constrained bylanguage because, even in the penumbra, a rule's core meaning hassignificance, for it establishes criteria of relevance and resemblance. 242

Indeed, the first thing a judicial actor must do, in a hard case, isinquire "whether the present case resembles the plain case 'sufficiently'in 'relevant' respects". 243 So, the official is not set adrift and officialchoice is not arbitrary or irrational simply because it may be assessedby precisely these criteria. This "type of reasoning" 244 may, it is true,leave one a "very wide" discretion;245 but even here not all answerswill do because, according to Hart, judicial reasoning is confined byconvention as well. For Hart, judicial choice is orthodox both inmethod and in aspiration.

Constraint of this conventional sort is provided in two ways -by the virtue which the judicial actor is expected to display, and bythe reception the official's choice subsequently receives from otherofficials. 246 The first arises from Hart's view that judicial reasoning isa style of reasoning which "display[s]" certain "virtues"247 which, inhis view, are particularly appropriate to legal decision-making. Thesehe identifies as "impartiality and neutrality in surveying the alterna-tives; consideration for the interest of all who will be affected; and a

237 Ibid. at 150. On the other hand, there is yet "a vast field for creativeactivity": Ibid. at 200, 132.

238 Ibid. at 132.239 See ibid. at 148-49: "[T]hough every rule may be doubtful at some points,

it is indeed a necessary condition of a legal system existing, that not every rule isopen to doubt at all points".

240 Ibid. at 144.241 Ibid. at 127.242 Ibid. at 124.243 Ibid.244 Ibid. at 144.245 Ibid. at 124.246 Hart seems to imply that the two are interdependent, i.e., that a choice

which is informed by virtue is more likely to be well received.247 Supra, note 9 at 200.

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concern to deploy some acceptable general principle as a reasonedbasis for decision". 248 Official choice, therefore, is judicial if and onlyif its origins are acceptable.

For this reason, in the penumbra at least,249 truth and virtue areone - a choice is correct only if it is proper. Since it is only properif ultimately acceptable, legal and judicial reasoning exist in perfectsymmetry; the judicial is the factory by which the necessary penumbraof rules expressed in language is endlessly confined and narrowed.250

In consequence, not only is choice not free, its aspiration, at leastnotionally,251 is its elimination.

Hard cases, therefore, are also unchallengeable in style insofar asthey display judicial reasoning; they are also incontestable in substanceinsofar as, because they display that style, the meanings they establishare accepted as part of the core by others. When all is said, whateveris contestable in judicial practice is contestable only by the few andon the narrowest of grounds. 252

IV: DWORKIN AND THE EPISTEMIZATION OF THE GOOD

Dworkin thinks his is a theory which both prizes and permitscontroversy. 253 Furthermore, he thinks that this controversy is availabledespite his viewing legal practice as a "process of justification" oflegal history.254 I propose to show that he cannot have it both ways,and that the controversy he salvages for legal practice is so thin and

248 Ibid.249 1 say at least because to the extent that Hart's is a conventionalist theory

of language, truth is virtue - that is, if the core is only the core because it isaccepted as such, all official reasoning turns on acceptance.

250 Convention is, therefore, a bridge between penumbra and core; the "chiefend product" of successful choice is more rules: See supra, note 9 at 121-50.

251 This is only notionally the case because if, as Hart proposes, ignorance isa necessary "feature of the human predicament", there will always be instances inwhich no successful choice has been made: Ibid. at 125.

252 If a decision is judicial in Hart's sense, it is difficult to imagine how itcould be criticized because, by definition, it would be both rational and virtuous.

253 "[L]egal judgments", Dworkin tells us, are "pervasively contestable"; heconceives his project as a determination of how this "theoretical disagreement ispossible and what it is about": See EMPIRE, supra, note 11 at 411, 11, 43-45, 67,136-39, 407-09. His present views regarding contestability are, incidentally, a moreexact statement of views he has expressed before: See TAKING RIGHTS SERIOUSLY,supra, note 221 at 67, 340-41; see also R. Dworkin, A MATrER OF PRINCIPLE(Cambridge: Harvard University Press, 1985). For issues he thinks "controversial inour own practice", see EMPIRE, supra, note 11 at 99-101.

254 See TAKING RIGHTS SERIOUSLY, ibid. at 67. Dworkin is not alone in thinkingjustification central to law. See, e.g., N. MacCormick, LEGAL REASONING AND LEGALTHEORY (Oxford: Clarendon Press, 1978) at 2-8, 13-28, 64-65, 265-74; J. Dewey,Logical Method and Law (1924) 10 CoRN. L.Q. 17 at 24; and, more recently, D.Lyons, Substance, Process and Outcome in Constitutional Theory (1987) 72 CORN.L. REv. 745 at 761-62.

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narrow a matter as not to warrant the label controversy at all. I willmake two arguments. I will first argue that his theory of legal practiceas justification requires an endorsement of official consensus that bothmarginalizes and trivializes controversy. I shall then argue that theinterpretive theory which founds that view of practice so colonizes thegood as to make legal discourse and its social production incontestablenot only internally, but externally as well.

A. Legal Discourse: Allegiance and Justification

At one point in EMPIRE, Dworkin tells us, quite offhandedly, thatlegal education is inevitably conservative.255 He does not, however,tell us why this should be so. 256 But we can, I think, easily providehim with a reason - if law is indeed an interpretive practice whichseeks to justify the past, then legal education would likely be conser-vative because it would likely seek to train persons as practice con-servers. 257 In this part, I will explore the theoretical foundations whichmake that reply possible and, in so doing, I hope to show that, forDworkin, the whole of legal practice is not only conservative, but non-controversial as well.

We must first recall that, according to Dworkin, law is aninterpretive social practice.258 Because this is so, law is not merely "an

25 Supra, note 11 at 88. He makes this comment when discussing the "varietyof forces" which "conspire towards convergence" of judicial opinion. "The inevitableconservatism of formal legal education," he says, "adds further centripetal pressure"to the other factors he identifies (and which I will address below).

Dworkin has not offered a theory of legal education in any of his major works.In the one piece he has dedicated exclusively to this topic (see R. Dworkin, PoliticalTheory and Legal Education, in M. Richter, ed., POLITICAL THEORY AND LEGALEDUCATION (Princeton: Princeton University Press, 1980), he (unfortunately) does notoffer such a theory; there he describes legal education as yet another location forcriticizing what he then termed the "non-problematical theory of law" and what henow terms "the plain-fact view" (see EMPIRE, ibid. at 6-11). His comment here,however, appears to indicate that he carries a version of legal education, and thatversion is either a significant predicate or implication of his theory.

256 However, he does make a number of comments which suggest an answer.He tells us, for instance, that "[j]udges normally recognize a duty to continue ratherthan discard the practice they have joined": Ibid. at 87. If this is so, then unanimitymust be assigned a cause. Dworkin appears to think legal education is the cause:"Each lawyer," he says, "has joined the practice of law with [certain cognitive]furniture [having to do with the sources and forms of law] in place and with a sharedunderstanding that [certain] institutions together form our legal system": Ibid. at 91.This makes sense. If legal (including judicial) practice seeks to preserve itself, thenlegal education must educate persons as preservers and, therefore, must be conser-vative.

257 1 say "likely" rather than "necessarily" for the reason that even if legalpractice is the practice described by Dworkin, we would only wish to train personsto preserve that practice if we thought legal practice ought to be like that.

258 See EMPRnE, supra, note 11 at 14, 65, 87, 99, 410.

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institution we interpret", 259 it is an institution of interpreting. 260 Andfor law in this sense to be at all possible, there must, as Dworkinfully understands, be some "plateau of consensus" from which theinterpretive arguments of which law is comprised can arise and onwhich they may be built. 261 In Dworkin's view, controversy (or at leasthis version of it)262 typically emerges from the consensus whichinterpretive practice, in this fashion, requires. This is a surprisingcalculation (consensus, after all, is the antithesis of controversy); I willbegin by searching for the arithmetic that makes it possible. The searchwill disclose that the controversy Dworkin thinks survives consensusis, on the contrary, consumed by it, and that any remainder ofdisagreement is a disagreement without either critical point or sub-stance.

1. Controversy and the Consensual Attitude

We must begin with the attitude Dworkin claims necessary263 fora practice of constructive interpretation, such as law, to emerge.264

That notion informs the whole of his interpretive and political theory,including his theory of controversy.265 According to Dworkin, in ordereither for such a practice to emerge or for any individual to "join" 266

the practice once it has emerged, a certain "complex interpretive

259 Ibid. at 73 (although we do of course interpret it).-6o Therefore, it makes sense to say, as Dworkin does, that "[jludges should

decide what the law is by interpreting the practice of other judges deciding what thelaw is" (ibid. at 410); they should so do because, if law is interpretation, they coulddo nothing else.

261 Dworkin uses the plateau analogy throughout EMPIRE: See, e.g., ibid. at 70("a kind of plateau on which further thought and argument are built"); at 74 ("theplateau from which arguments... largely proceed"); at 108-09 ("for us, legal argu-ment takes place on a plateau of rough consensus"). Of course, consensus is necessarybecause otherwise there would be nothing to interpret - no object concerning whichinterpretive argument could be made (see, e.g., ibid. at 46) and no criteria fordeciding which arguments are sound (ibid. at 45).

262 See infra, note 323 and accompanying text.263 1 am here treating the interpretive attitude as a theoretical device which

permits Dworkin his theory of constructive interpretation. The relationship betweenthe two can, however, be treated differently - i.e., the interpretive attitude is priorto, and not merely a device that permits, constructive interpretation. But priority inthis sense is not ultimately important because the two interpenetrate at the level oftheory.

264 See generally, supra, note 11 at 14, 46-49, 76-78, 91.265 His argument for integrity as the most appealing conception of law is, for

instance, only intelligible in terms of the structure which the interpretive attitudeprovides his more general interpretive theory.

266 See EMPRE, supra, note 11 at 64.

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attitude" must be adopted with respect to the social practice or insti-tution - here law267 - which is the object of interpretation. 268 Thisis so because otherwise our attitude toward the practice - and,therefore, the practice itself - must, he claims, be merely "mechan-ical" and, in consequence, both unreflective towards and unconstructiveof the practice.269 This interpretive attitude requires two things ofpractice participants. First, they must assume 270 that the practice has a"point" - that "it serves some interest or purpose or enforces someprinciple" - which "can be stated independently of just describingthe rules that make up the practice". 27 They must assume, secondly,that the "requirements" of the practice - "the behaviour it calls foror judgments it warrants" - are "sensitive to its point" and are,therefore flexible and not "fixed by history and convention". 272 Onceboth these "components of the interpretive attitude" are taken up, the"assumed point acquires critical power" because "people now try toimpose meaning on the institution - to see in its best light". 273 Adialectic thus emerges between the requirements of the practice and its

267 In the case of law, Dworkin thinks the institution is the practice ofinterpretation: See supra, note 260 and accompanying text.

268 See EMPIRE, supra, note 11 at 47-48.269 Ibid. Dworkin defines the mechanical attitude as an "unstudied deference

to a runic order" (ibid.); such an attitude is, of course, the precise antithesis of theone necessary for "imposing purpose" on a practice, the activity which definesconstructive interpretation (ibid. at 52). If we merely mechanically defer to a practice,we cannot at all seek "to make of it the best possible example of the form or genreto which it is taken to belong" (ibid.).

Dworkin's calculation of the attitudinal alternatives with respect to our socialpractices is very similar to Hart's and raises the same question (see supra, note 82;and infra, note 275). According to both, we either unreflectively defer to the practiceor reflectively accept the practice. Each, of course, thinks our attitude towards thepractice is constitutive of the nature of the practice. Dworkin does add to Hart.Acceptance, in his view, need not be uncritical because controversy within consensusis still possible, but in other respects, his account is the same. For instance, likeHart, Dworkin thinks the quality of practice is static for those with an unreflectivepoint of view: See also infra, note 272.

270 And it is for Dworkin just that, an "assumption": EMPIRE, supra, note 11at 47.

271 Ibid.272 Ibid. at 47-48. Two incidental notes: First, Dworkin thinks "[t]he two

components of the interpretive attitude are independent of one another." .[W]e can,"he says, "take up the first component of the attitude toward some institution withoutalso taking up the second". This we do, he thinks, "in the case of games andcontests" for there "[w]e appeal to the point of these practices in arguing about howtheir rules should be changed, but not... about what their rules now are." In games,rather, the rules are fixed with finality because the second part of the attitude ismissing and because, in consequence, interpretation "plays only an external role".

This raises the second note: Dworkin's interpretive attitude is not at all dissimilarto Hart's dichotomy between the internal and external points of view. Each uses hisdevice to define the nature of the practice for participants; and both think the natureof the practice varies in terms of the presence or absence of participant reflection.

273 Ibid.

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interpretation - interpretation will come to "fold back into the prac-tice, altering its shape and the new shape [will encourage] furtherreinterpretation". 274

As I have indicated, the interpretive attitude is important for ourimmediate purposes because of the direction and demands it sets fortheory.275 The direction, obviously enough, is consensus. When"[e]veryone develops a complex 'interpretive' attitude", 276 what theyare developing is a consensus of two parts: first, that their practice has"value" 277 and second, that their proper relation to the practice is "tosee it in its best light". 278 It is this direction which articulates therequirements of interpretive theory. If the sediment of the interpretiveattitude is this twofold consensus, interpretive theory must first permitthe identification of a practice which can serve as the object ofinterpretive activity. It must then allow that practice to have a pointabout which interpretive debate can be undertaken. Dworkin's inter-pretive theory meets both requirements. His pre-interpretive stagepermits the practice to be identified and his interpretive stage allowspractice to have a point and interpretation to be controversial. Whatwe must now do is identify the moments of interpretive practice atwhich Dworkin thinks this controversy possible because that will verymuch define his notion of controversy. Only then can its significancebe assessed.

Dworkin attempts to salvage controversy from consensus by ma-nipulating the standard of consensus required by the interpretive attitudeat different points in his interpretive theory.279 At the pre-interpretivestage - the stage at which the practice is tentatively identified - nocontroversy is possible because "a very great degree of consensus isneeded". 280 Consensus is required because interpretation is required

274 Ibid. at 48.275 This is not to imply that Dworkin's notion is unreproachable. On the

contrary, it can be challenged on at least two grounds. I have already alluded to thefirst (see supra, note 269), namely, his assumption that there are but two forms ofparticipation in social practices, either mechanical deference or his interpretive atti-tude. This is all the more troublesome at this stage - and this is the second ground- since we now know that his interpretive attitude permits only two forms ofpractice. In the case of persons who adopt only the first component, practice requiresonly acceptance that the rules are beyond reproach because they are "fixed by historyand convention". In the case of persons who adopt both components, practice consistsof an undertaking "to impose meaning on the institution - to see it in its bestlight. . .": Ibid. at 47. [emphasis in original] Neither practice is, of course, criticalin the Hartian or any other sense. I will discuss this matter at length below.

276 Ibid.277 Ibid.278 Ibid.279 We will presently see that he deploys two conceptual devices for this

purpose: the distinction between concepts and conceptions and the distinction betweencompetition and contradiction.

280 See EMPnmE, supra, note 11 at 66.

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even at this moment.281 The standard of consensus is high becauseotherwise there would be nothing on which "our [interpretive] imagi-nation [could] be trained" and nothing, in consequence, by which ourimagination could be constrained.282 It is, instead, at the interpretivestage - or, rather, at a part of it - that Dworkin thinks controversyto be possible. He deploys two devices to achieve this result - adistinction between concepts and conceptions and a distinction, whichwe will come to somewhat later,283 between competition and contra-diction.

Dworkin has long used the distinction between concepts andconceptions, 284 deploying it to differentiate between the kinds of ar-gument which are possible in moral and political debate.285 Suchdifferentiation is possible, he claims, because concepts and conceptionsare simultaneously different in kind and related in practice.2 6 Theyare different because concepts are communal and conceptions areindividual; they are related because concepts establish standards whichconceptions seek both to meet and to explain. 287 Concepts are com-munal in the sense that, with respect to any practice, "[p]eople by andlarge agree about the most general and abstract propositions about[it] ."288 Conceptions are about those agreements and they are individualbecause the interpretive life of a practice does not require agreementwith respect to the "more concrete refinements or subinterpretations"there at issue.289 Indeed, just the contrary: an interpretive practice willsurvive only to the degree that such agreement is absent.

The concept/conception distinction is the first predicate of Dwor-kin's notion of controversy. If it is to be an interpretive practice, lawmust have a point toward which the conceptions comprising its argu-mentative life are directed, a point at which they arise, and a pointaround which they are organized. 290 He tells us that the point of law- its "justifying purpose or goal or principle" 291 - is "to guide and

281 Ibid. at 66, 425 n. 22.282 Ibid. at 75.23 See infra, note 335 and accompanying text.2 See, e.g., TAKING RIGHTS SERIOUSLY, supra, note 221 at 134-36, 226. See

also A MATrER OF PRINCIPLE, supra, note 253 at 49-55.285 See EMPIRE, supra, note 11 at 70-72.286 See TAKING RIGHTS SERIOUSLY, supra, note 221 at 136.287 Ibid. at 135, or, as he later puts it, concepts pose issues which conceptions

attempt to answer.288 See EMPIRE, supra, note 11 at 70, 136.289 Ibid. at 70.290 Ibid. at 93. Dworkin here offers his statement of law's point "as an abstract

account that organizes further argument about law's character".291 Ibid. at 87-88.

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constrain the power of government" in certain fashions. 292 However,that declaration does not concern us here;293 our concern, rather, is thedegree of consensus Dworkin thinks necessary at the conceptual andconceptional moments of interpretive practice. Because it is the "pla-teau" from which and in terms of which legal argument is undertaken,the point of law - its concept - requires absolute consensus. 294 Therequirement is absolute because one can only join the practice byassenting to its point - otherwise, one is simply "outside the com-munity of . . discourse about" the practice.2 95 If, therefore, there is tobe controversy, it must relate to conceptions, and, according to Dwor-kin, this is just the case.

For Dworkin, the controversy that attends law as interpretivepractice consists of disagreements about conceptions; practice partici-pants can, and characteristically do, "disagree. . .about what. . .[the]practice actually requires in concrete circumstances". 296 More generally,they can and do disagree "about the best justification of [the] prac-tice". 297

Controversy, then, is ultimately a function of the second compo-nent of the interpretive attitude. It arises from the theory Dworkinconstructs to make that component practical. It is controversy in thissense that he claims possible despite - or rather, because of - themany convictions which interpreters must share to make practicepossible. 298

2. The Ambit of Controversy

My view, as earlier indicated, is that controversy of this Dwor-kinian sort is not controversy at all. It is now possible to begin toargue for that view. I want next to explore, in finer detail, thetheoretical structures which support and, more importantly, define

292 Ibid. at 93. The entire passage reads as follows:

Our discussions about law by and large assume, I suggest, that the mostabstract and fundamental point of legal practice is to guide and constrainthe power of government in the following way. Law insists that force notbe used or withheld, no matter how useful that would be to ends in view,no matter how beneficial or noble these ends, except as licensed orrequired by individual rights and responsibilities flowing from past polit-ical decisions about when collective force is justified.

293 But not because it is not otherwise very intriguing. Indeed, it is a verysignificant instance of the dominant view of law as civil strategy, which I pursueelsewhere: See supra, note 16.

294 See infra, note 314 and accompanying text.295 See EMPIRE, supra, note 11 at 71.296 Ibid. at 46, or, as he later puts it (ibid. at 67): "[O]ver the exact dimensions

of the practice they all interpret".297 Ibid. at 67.298 Ibid. at 67, 88.

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Dworkin's view of controversy in law. There are, I think, three. First,there is the relationship between the pre-interpretive and interpretivestages. Second, within the interpretive stage, there is the relationshipbetween concepts and conceptions, on the one hand, and convictionswith respect to fit and appeal of conceptions, on the other. I will arguethat each of these relationships confines controversy and that in concertthey trivialize it.

The pre-interpretive and interpretive stages are necessarily inti-mately related because practice in the latter sense is not merely directedtowards, but is confined by the pre-interpretive given. This is sobecause "an interpretation that falls below [the] threshold of fit" withthe practice as pre-interpretively given "shows. . . [the practice] in anirredeemably bad light". 299 Since by definition, interpretation is thepractice of showing practices in their best light, an interpretation whichfails the threshold is no interpretation at all. 300 Much, therefore, isimmediately and foundationally removed from interpretive discourseand from the controversy which Dworkin thinks it provides. 30 1 Onlythose proposals which fit the practice may possibly be within "thecommunity of.. .discourse about the institution". 302 Since the pre-interpretive shape of the practice and, as we shall see shortly, thecriteria of fit are matters of consensus, this diminishes substantivelyany practice of controversy which may yet be available.

However, that is only the initial diminution because we cannoteven then freely "[assign] meaning to what we find" pre-interpre-tively.303 We are further constrained, first of all, because concepts andconceptions - which together provide the currency of the interpretivemoment - are also related. They are related because conceptions are,in some measure, 304 concept dependent. This relationship is not justformal 305 - concepts do not merely "[organize the] further argument"which takes the form of conceptions; they also define, at least at thethreshold, its content. 306

Paradigms are that definitional constraint. Concepts beget para-digms simply because concepts have content. 307 They are not a grantof interpretive discretion. 308 On the contrary, a concept "sets a stan-dard. . .because it assumes that one conception is superior to an-

299 Ibid. at 257.300 Ibid.301 I discuss this matter more fully below.302 EMPIRE, supra, note 11 at 71.303 Ibid. at 91.304 See infra, note 313 and accompanying text.305 The relation is formal as well because it permits "a standard form of

argument": EMPRE, supra, note 11 at 92.306 Ibid. at 93.307 See Dworkin's definition of paradigms, ibid. at 72, 88, 91.308 See TAKING RIGHTS SERIOUSLY, supra, note 221 at 135.

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other". 309 It can make this assumption because a concept contemplates- indeed it is to some degree comprised of - "a great number ofstandard cases" about the point of the practice. 310 Paradigms are thosecases - "concrete examples any plausible interpretation", any concep-tion, "must fit"311 - and controversy is further diminished for justthis reason. Concepts too, remember, are a matter of consensus, atleast to the extent that they are constituted by paradigms. 312 To thatextent, concepts and the conceptions which must seek to fit 3'3 themare, by definition, uncontroversial. 314

There is yet another constraint that affects the ambit of contro-versy. At numerous stages Dworkin speaks of convictions which nec-essarily inhere in the interpretive attitude. 315 Central among these areconvictions regarding fit and appeal. 316 An interpreter must have aview regarding "how far the justification he proposes at the interpretivestage must fit the standing features of the practice to count as aninterpretation of it rather than the invention of something new".3 17

Also, he must have more "substantive convictions about which kindsof justification really would show the practice in the best light". 318

309 Ibid.310 Ibid. at 134.311 Ibid. See also infra, notes 313 and 320.312 At one point, Dworkin indicates that paradigms "need not be matters of

convention": "It will be sufficient", he says, "if the level of agreement.. .is highenough at any given time to allow debate over fundamental practices... to proceed":See EMPIRE, supra, note 11 at 138-39. However, that is just the point - to theextent that there is agreement of that variety, there is consensus. His earlier discussionsof paradigms appear to recognize just this: See EMPIRE, supra, note 11 at 72, 88,91-92.

313 Understood in this way, fit takes the form, in argumentative practice, ofquestions which each proposed conception must seek to answer: See ibid. at 94,where Dworkin articulates the questions posed by his concept of law as constraint ofgovernmental coercion.

314 Dworkin appears hesitant with respect to whether agreement defines thepoint of practice: Compare ibid. at 92 (where he poses the question) and ibid. at 93(where he states that his subsequent arguments do not "depend on finding an abstractdescription of that sort"). See also ibid. at 87-88. This is curious; clearly theinterpretive attitude requires at least that there be consensus that a practice has "somepoint" (ibid. at 47). Inasmuch as interpretation consists of imposing meaning on apractice in terms of the content of its point, it would appear necessary for participantsto agree on content as well, because otherwise they would not be engaging in thesame interpretive practice. Indeed, Dworkin seems to recognize this immediately:"Conceptions of law", he says, "refine the initial, uncontroversial interpretation Ijust suggested provides our concept of law": Ibid. at 94. See also ibid. at 71, wherein discussing respect as a proposed concept of courtesy, he declares that the claimwill fail "unless people are by and large agreed that courtesy is a matter of respect".See also ibid. at 136.

315 Ibid. at 67, 88.316 Or, as he sometimes calls them, "dimensions of fit and substance": Ibid. at

257.317 Ibid. at 67.318 Ibid.

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Dworkin distinguishes between those convictions of fit and substance,both in terms of priority and in terms of the degree of consensusrequisite to each. Substantive convictions, he says, are logically "in-dependent of the convictions about fit" because "otherwise the lattercould not constrain the former, and [the interpreter] could not, afterall, distinguish interpretation from invention". 319 This is to restate theconstraint we have already encountered between the pre-interpretiveand interpretive with perhaps the twist that, at the interpretive stageas well, the meaning of fit pertains to concepts and conceptions.3 20

We are more concerned, however, with the second basis ofdistinction. Convictions of fit differ from convictions of appeal becausethe former are communal and the latter are, to some degree, individual."[T]here cannot be too great a disparity in different people's convic-tions about fit" because otherwise the foundational distinction betweeninvention and interpretation would itself become contestable and inter-pretation to that extent would be impossible.321 An interpreter's con-victions of appeal, on the other hand, "need not be so much sharedwithin his community" simply because a shared definition of appealis not necessary for the interpretive attitude to take hold.322

We have, then, identified numerous concessions to consensus.And on that basis, we can come finally to define more precisely theambit of Dworkinian controversy. For Dworkin, controversy consistsof disagreement concerning "the best conception of [the] concept" ofthe practice in question, and then of disagreement concerning what thebest conception requires in any instance.323 Because the concept mustfit the practice as given by pre-interpretive consensus; and because theconception mustfit the concept which is, itself, a matter of consensus;and finally, because the standards of fit are communal in both theseinstances, controversy of this sort is dependent solely upon the degreeto which interpreters are free to conceive of conceptions (and of theirrequirements), independent from the interpretive community to whichthey belong. This is entirely a matter of how far the interpreter'sconvictions of appeal "need not be so much shared within his com-munity". To the extent that they must be shared - to the extent, thatis, that akin to convictions of fit, these convictions are also communal- controversy of even this special and limited sort becomes impos-sible. 324 Dworkin, of course, thinks it is possible. He thinks that"similarity of interests and convictions need hold only to a point", and

319 Ibid. at 67-68.320 See supra, note 313.321 See EMPmE, supra, note 11 at 67.322 Ibid. at 68.323 Ibid. at 74, 47.324 Ibid. at 68.

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that "genuine disagreement" is, in consequence, possible.325 In thenext two parts, I will inquire as to whether he is correct.

3. Competition and Individuals: The Interpretive Economy

Disagreement is possible for Dworkin because he thinks practiceparticipants survive as individuals despite their agreement over such"a great deal in order to share [the] social practice". 326 In this sense,interpretation is ultimately a "protestant" practice 327 - because socialpractices are constituted by individual assent, individuals are neverconsumed by the practices they collectively create. Instead, eachremains, even within the practice and as practice participants, individ-ually responsible for what the practice means and requires. 328 I wantto inquire whether this is so - not in ontological terms, 329 but interms of Dworkin's exploration and defence of disagreement amongpractice participants. We will be concerned with two matters: hisdefinition of disagreement as competition; and his argument that disa-greement in this sense survives the convergence produced by interpre-tive constraints.

We have already seen that the distinction between concepts andconceptions is the first predicate of Dworkin's notion of controversy.The distinction between competition and contradiction is the second.By deploying this distinction, Dworkin seeks to articulate the qualityof the relationship which must pertain between the different conceptionsthat different practice participants are thought to be able to articulate. 330

Different conceptions about what a concept "really requires" are, hesays, "claims" about the practice which can only compete with oneanother.331 They must be competitive, because if they were to contra-dict, they could not all be about, 332 nor would they all, therefore, be

325 Ibid. at 64. This may be put in terms of legal practice. Although "thelawyers of any culture where the interpretive attitude succeeds must largely agree atany one time" (ibid. at 91), they can still disagree because each individual may havea "response to the tradition": Ibid. at 49.

326 Ibid. at 63.327 Dworkin describes interpretation as protestant on numerous occasions: See

ibid. at 190, 252, 413.328 Ibid. at 413.329 Dworkin must, I think, believe that the self is ontologically prior to praxis

and that it is not, therefore, acquired socially. I discuss this matter at some lengthwhen I assess the success of the positivist project: See supra, note 17. Our presentconcern is much more confined - given what appears to be his ontological premise,can Dworkin make out that a controversy of substance survives the consensus hisinterpretive theory requires?

330 See EMPIRE, supra, note 11 at 64, 71, 235, 268-71, 274, 443-44 n. 20.331 Ibid. at 71, 64.332 They could not be, because if they were to contradict one another, they

could not fit the practice.

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within, the practice.333 It is not necessary for our present purposes tosubject this dichotomy to critical appraisal; 334 rather, I wish to explorebriefly the distinction in order to disclose more fully Dworkin's un-derstanding of the interpretive situation. We can then proceed todetermine whether disagreement, or at least morally and politicallysignificant disagreement, can survive in such a situation.

Dworkin's interpretive situation335 is defined by a certain form ofconflict and by a certain version of interpretive practice. Because heexcludes contradiction, conflict is both confined and constrained. Thisis so because disagreement is about something, yet that something isnot itself subject to disagreement, as it would be if contradiction werepermitted. Interpretive conflict, in consequence, is really about coher-ence, or more accurately, about the proper form of coherence. WhatDworkinian interpreters disagree about is which competing proposalsshow the practice most coherently, in its best light. To this extent, itis a closed conflict - only certain proposals count and of those thatcount, only some appeal. 336 However, and this is the crux, whichappeal is not, according to Dworkin, a matter of consensus, 337 bothbecause practice participants are free to dissent, and because, notionallyat least, it is possible to discriminate among those freely articulatedproposals on a basis other than acceptance. 338 Because they are free,and because appeal is not a consensus matter, there exists a market ofproposals from which individuals may select and to which they maycontribute. This economy is our interpretive situation - individualsare its motor and their production is assayable along criteria whichinhere in its situation.

333 See EMPIRE, supra, note 11 at 71.334 For this appraisal, see J.M. Balkin, Taking Ideology Seriously: Ronald

Dworkin and the CLS Critique (1986-87) 55 U.M.K.C.L. REv. 392 at 417-22.335 Dworkin, incidentally, uses this term: See EMPIRE, supra, note 11 at 270.336 Closure will subsequently be discussed more fully: See infra, note 367 and

accompanying text.337 See EMPIRE, supra, note 11 at 88, 232-33.338 I do not pursue the latter point here. Suffice it to say that Dworkin's

epistemic inclinations - namely, the proposition that legal propositions are true ifthey follow from that coherent scheme of principle which both explains and bestjustifies legal history - commit him to some theory which permits a differentiationof what is best on some non-conventionalist basis: See EMPIRE, ibid. at 225 andTAKING RIGHTS SERIOUSLY, supra, note 221 at 283. Unless Dworkin thinks that lawas integrity is the theory (and it cannot be because it is a conception of the bestjustification, not a method for differentiating between conceptions of best), he hasnot offered such a theory. However, Hercules must signify his belief that such atheory is possible: See EMPIRE, ibid. at 245, 265 and TAKING RIGHTS SERIOUSLY,supra, note 221 at 68, 340.

For a discussion of Dworkin in terms of this issue, see A. Altman, LegalRealism, Critical Legal Studies and Dworkin (1986) 15 PHILOSOPHY AND PUBLICAFAIS 205.

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But are practice participants really free interpretively at all? Thewhole of Dworkinian hermeneutics is, as we have seen, predicatedupon constraint 39 wrought of consensus (it is such a constraint afterall, that distinguishes interpretation from invention); and if individualssurvive in practice, they survive as individuals in that practice subjectto all its constraints, and not as individuals simpliciter.340 Dworkin is,of course, aware that "most powerful influences toward convergence"inhere in this situation, 341 but he still thinks that "[t]he dynamics ofinterpretation resist as well as promote convergence" and that practiceparticipants need not, in consequence, become caught by the drive toconvergence or be entrapped in the consensus that would otherwiseappear to be its result. 342 He does not, however, identify those counter-consensual forces with any sophistication;343 and in order to test hisnotion of controversy we must look elsewhere. The most fertile groundis to be found, I believe, in his view of interpretive practice in wickedlegal systems and in his notion of post-interpretive practice. 344 Theseinstruct that whatever controversy Dworkin has salvaged for interpre-tive practice is not at all one of moral or political significance, becausewhen all is said, that form of controversy does not permit practiceparticipants to dissent, not even from evil. I undertake this argumentin the next part. In a concluding part, I will explore, on a granderscale, why this must be so in Dworkin's project.

339 See, e.g., EMPIRE, ibid. at 52, 63-64, 234-35, 257, 270.340 The individual does not survive as a subject except in the most obvious and

trivial sense. By joining the practice, individuals "give up methodological individu-alism" and begin to "use the methods" which other participants "use in formingtheir opinions about what [the practice] really requires": Ibid. at 64. This is so attwo levels: Generally, because the interpretive attitude requires the individual toassume both that the practice has value and that the individual's task is to show it inits best light; and more particularly, because the interpretive market - and theinterpretive requirements expected of the individual - will vary from practice topractice.

34, Ibid. at 88.342 Ibid.343 Perhaps Dworkin's failure in this regard is the result of his view that critics

will typically hold just the contrary view of matters - namely, that despite his theory,interpreters (and especially judicial interpreters) are always free: See, e.g., ibid. at258-75, where Dworkin responds to what he calls "familiar objections", all of whicharise from the allegation that judges are unconstrained because they are interpretivelyfree.

344 They are the most fertile because a theory of practice in wicked systemswill most dramatically disclose how practice may be controversial and because atheory of post-interpretive practice will disclose the effects of controversy. We willdiscover below that the inquiries are interdependent.

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4. The Practice of Controversy: Wicked Legal Systems and thePost-Interpretive Moment

If Dworkinian controversy provides a discourse of any signifi-cance, we can reasonably expect it to demonstrate its significance bothin terms of the opportunity it provides for contesting evil, and in termsof the substance of the transformation of practice it provides post-interpretively. On both of these counts, however, Dworkin's contro-versy shows itself to be shallow indeed. It does not permit participantsto dissent as participants from wickedness in their practice; 345 and thepost-interpretive change it provides is reformist at best and mererepetition at worst.

Because individuals must have adopted the interpretive attitudebefore joining a practice, they must, as participants, seek to perpetuateits point or value by showing the practice in its best light. But whatif the practice is evil? 46 Or, as Dworkin puts it in the case of law,what if the legal system in which they are participants is "wicked"? 47

In such a case, Dworkin tells us, the participant must either resignfrom the enterprise or lie about the content of law in order to diminishits wickedness. This is so because the interpretive attitude "demandsthat [participants] continue the overall story" of the practice: theycannot as participants seek to do otherwise.348

Any proposal that contradicts the value and history of the practice- here its evil value and its wicked history - would mark the

proposer "as outside the community of. . .discourse", simply becausecontradiction fails to show the practice in its best light. 349 No contro-versy about wickedness is, therefore, permissible within the practice- dissension is possible only by abandoning the practice or, in whatamounts to the same thing,350 through a bad faith pretence that one isacting qua practitioner.351

The impoverishment of Dworkinian discourse is not, however,special or confined to wicked legal systems, although it is surely mostdramatically disclosed there. Each of us would wish, after all, to beable to speak against evil in law as participants in law. It is just the

345 I will discuss below whether dissent is possible outside the practice.346 One may wonder, incidentally, how evil could be recognized if our society

is as Dworkin envisions it, i.e., "divided in project, interest, and conviction": EMPIRE,supra, note 11 at 413. See also EMPIRE, supra, note 11 at 166, 213-14, 217, 221,411.

347 Dworkin discusses wicked legal systems at several points in EMPIRE: See

ibid. at 107-08, 218-19, 230, 262, 421 n. 12. He also discusses the matter in TAKINGRIGHTS SERIOUSLY, supra, note 221 at 326-27.

341 EMPIRE, ibid. at 270.349 Ibid. at 71.350 It is indeed the same thing because the judicial liar would be refusing to

take part in the practice of showing the practice in its best light.351 But even this would not constitute controversy because it consists of silent

subversion, not interpretive discourse.

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contrary - Dworkin's notion of the post-interpretive moment disclosesthe whole of interpretive practice to be a discourse of meager (becauseaccidental) significance. The post-interpretive stage, he tells us, is thestage at which the interpreter "adjusts his sense of what the practice'really' requires so as better to serve the justification he accepts at theinterpretive stage". 352 The post-interpretive moment, that is, is dialect-ical to the interpretive moment - that is, it is the moment ofconsequence in which "[i]nterpretation folds back into the practice,altering its shape." 353 But if this be so, how far, we may ask, may thesubstance of the practice - the commitments its value requires ofpractitioners - be altered?

If we accept Dworkin's view of matters, the answer to this inquiryis simple enough - not very far at all. This is so, not merely becausethe interpreter must seek to continue the practice, 354 but more pro-foundly, because of the relationship which necessarily pertains betweenthe interpretive and post-interpretive moments of practice. For accord-ing to Dworkin, "interpretation of a social practice seeks equilibriumbetween the justification of the practice and its post-interpretive re-quirements". 355 And this is to define the very notion of interpretation- the very project of showing a practice in its best light - as anexercise which foundationally prohibits significant alterations to prac-tice. It is, therefore, not just that the interpreter must show the practicein its best light; it is that the interpreters can only do this by definingtheir aspirations in terms of the "practice as they find it".356 Interpretivediscourse and the controversy which Dworkin claims inheres in it is,in consequence, shallow by design. Practitioners can speak significantlyonly to the extent that the hermeneutic balance between what is andthe justification for it happens to capture significance. To the extentthat it does not, as is the case in wicked legal systems, the interpretermust stand mute or lie.

All of this is reflected in Dworkin's occasional references toinstances of substantive change - in these contexts he is brief andobscure.357 In his discussion of paradigms, for instance, he says that

352 EMPIRE, supra, note 11 at 66.353 Ibid. at 48.354 Ibid. at 69, 270. This is not to denigrate the significance of the interpretive

mission in this respect; it is merely to say that its foundations are more profoundthan the mission (and its emphasis on the interpreter) would otherwise indicate.

355 Ibid. at 424 n. 17; see also ibid. at 88-90; and TAKING RIGHTS SERIOUSLY,

supra, note 221 at 150-83.356 EMPIRE, ibid. at 90. Dworkin makes the following comment with respect

to the relation between legal theories as constructive interpretations and legal practiceas a pre-interpretive given: Legal theories "try to show legal practice... in its bestlight, to achieve equilibrium between legal practice as they find it and the bestjustification of that practice".

357 See, e.g., ibid. at 70-72 and 88-89.

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"no paradigm is secure from challenge by a new interpretation". 358 Hecites the paradigm of gender in a not-so-very imaginary community asan example:

In our imaginary community, the paradigm of gender might have survivedother transformations for a long time, just because it seemed so firmlyfixed, until it became an unrecognized anachronism. Then one day womenwould object to men standing for them; they might call this the deepestpossible discourtesy. Yesterday's paradigm would become today's chau-vinism.359

Elsewhere Dworkin says that such "pattern[s] of agreement anddisagreement" might "disappear tomorrow" 360 and do so "suddenly". 36'However, he does not - because, I think, he cannot - tell us howthis change could possibly occur within an interpretive community ofhis sort, with its necessary ambitions and contingent aspirations. Hecan only surmise that "a new or even radical interpretation of someimportant part of legal practice is developed in someone's chambersor study which then finds favor within a 'progressive' minority". 362

Conjecture, however, is no substitute for theory.The post-interpretive moment, then, reveals the whole of inter-

pretive practice - and not just its incarnation in wicked systems -to be a practice which, because it prohibits radical discourse, prohibitspractitioners from multiplying their community's moral and politicalcommitments. This is so even in those instances in which discourse iscomparatively more significant because of a contingent overlap ofinterpretive ambition and moral aspiration. Even in such instances,"we have not progress, but repetition". 363 Interpreters, there as else-where, must seek continuously "interpretive adaptations" of the pastas a guide to calculate their future; 364 because they are free in thatsense only, they are not permitted to re-imagine aspirationally how thepast may give birth not merely to adapted, but to alternative futures.

5. The Truth of the Matter (Or: Why Controversy Must BeShallow)

Dworkin's interpretive theory requires interpreters to practiceallegiance to the past, but it is not this alone which makes his theoryunable to speak to the transformation of our moral and political

3S8 Ibid. at 72.359 Ibid. at 72-73.360 Ibid. at 71.361 Ibid. at 89.362 Ibid. at 89-90. Incidentally, Dworkin's mentioning of "favor" is revealing,

for he appears to be saying that contrary to his standing, nonconsensual version ofjustification, the best is that which is ultimately accepted.

363 See G.C. Spivak, The Politics of Interpretation in G.C. Spivak, ed., INOTHER WORLDS: ESSAYS IN CULTURAL POLMCS (New York: Methuen, 1988) at 122.

364 EMPIRE, supra, note 11 at 69.

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commitments. 365 Rather, his theory is mute - and the controversy itpermits is no controversy at all - because of the particular epistemicform he wishes allegiance to take. For Dworkin requires practiceparticipants not merely to recognize and to address the past, but tocleave to the past because it is true.366 It is precisely because of this,I will argue, that allegiance in the Dworkinian sense so closes criticalreflection and discourse. Absent that view of the past, there is noreason for constraint to effect this kind of closure. 367 Just the contrary- allegiance to or constraint by the past need foreclose criticalcontroversy only when it is thought adjudicative; and it can be thoughtof in that way only if it is thought to be both methodologicallyaccessible and significant.

We can begin by asking why, and in what fashion, consistencyis a value for Dworkin. He makes it abundantly clear that consistencyis neither merely a matter of sameness or repetition. 368 Consistency,rather, is a value because it is adjudicative in a fashion that exceedsmere logical relationship.

Dworkin values consistency precisely because it may take theform of coherence;3 69 and it is an adjudication of coherence which heseeks and to which he directs practice participants. However, this raisestwo questions. If coherence is not mere consistency: (a) what is it?and (b) how is it possible? We can start with the second. Dworkinmakes it possible for coherence with the past to be different fromconsistency with the past by assuming that the past has, or, at least,can be seen to have, a certain character - namely, that it can be seento be the deposit of "a hypothetical single author" 370 who speaks with"a single voice". 371 It is just this personification of the past that permitsus to cohere to the point in a fashion which exceeds traditionalism.However, the coherence it makes possible excludes controversy to theextent that it promotes monism.

365 This is to say a hermeneutic understanding does not, without more, prohibiteither critical reflection or transformational praxis.

366 I should mention that Dworkin's distinction between vertical and horizontalconsistency is no matter in any of this: See EMPIRE, supra, note 11 at 227-28. Itspurpose is to confine the meaning of the past in a fashion that requires coherenceand not merely consistency.

367 1 mean this quite literally. Neither Dworkin's requirements of fit or appealnor the coherence which they demand, without more, prohibit critical discourse. Itis, rather, only because fit and appeal - and, subsequently, coherence - are viewedas truth matters that officials such as Siegfried would ever have to lie.

368 Indeed the whole of EMPIRE is a declaration of this: See supra, note I 1 at219-24, 227-28.

369 Dworkin discusses coherence throughout EMPIRE: See ibid. at 19-20, 95-96, 228-29; see generally at 400-13.

370 Ibid. at 240.371 Ibid. at 186. See also ibid. at 228-29 and 232-39, and R. Dworkin, "Natural

Law" Revisited (1981-82) 34 U. FLA L. REv. 165 at 166-68.

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It is because the past can be viewed as a deposit of a personifiedwill that we can relate to it constructively and not just runically. Forif the past is like that, we can look to it for more than mere guidance,and we can see our practices as something more than merely fittingthe present to the past in a piecemeal, case by case fashion. We can,instead, see the past as a coherent whole, "a decision to pursue oneset of. . .purposes, one 'point', rather than another";372 and we cansee our practice as a partnership in continuing that structure, or asDworkin often puts it, that story.373 Our interpretive practice becomespledged to coherence in that sense - every instance of interpretationis "the report of a purpose" because it is the activity of imposingpurpose on practice.374

Law as integrity is that pledge;375 and according to Dworkin, thepledge is to the truth because interpretive proposals which cohere bestwith the past are true.376 There is, in consequence, an interpretive truthof matters; and because there is, consistency become coherence ismonistic and tends either to preclude or to trivialize controversy. Thisis so because truth is imperial; it seeks always to destroy plurality.377

It is this that explains Dworkin's difficulty in preserving contro-versy: simply, he had to forsake plurality to find the truth. In order totranslate consistency into truth, he had to conceive of our relation tothe past in a fashion which forbade controversy to the extent that itensured coherence. Coherence requires that we come to the past withan understanding already in place - with an understanding that thepast has a point and that ours is its continuation. To that extent, thepast is shallow. Its text becomes an occasion of instruction, instead ofan opportunity for learning; and our practice becomes a moment ofconfirmation rather than of reflection. There is no controversy becausethe past has only the thinnest of meaning for us.

372 EMPIRE, ibid. at 58-59. Coherence, here, reveals itself as an expression ofthe interpretive attitude in terms of which it both arises and is defined. This viewdoes not, incidentally, commit Dworkin to intentionalism: See ibid. at 53-65.

373 Ibid. at 313.374 Ibid. at 58-59.375 Dworkin offers concise definitions of integrity: See ibid. at 225, 245.376 Dworkin's conflating the best and the true may appear curious because it is

unnecessary. However, I believe he has substantive reasons for the equation. If, as Ibelieve to be the case, Dworkin sees the whole of the law as a discourse about thepreservation of moral autonomy (his notion of the point of law supports this view:EMPIRE, ibid. at 93), it makes sense to limit law in terms of truth if only becausetruth is a formidable - but not, of course, insurmountable - obstacle to statecoercion: Ibid. at 219.

377 In the next part, I inquire into whether law is imperial and external to thesystem.

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B. Taming the Good: Law as Empire

Dworkin's entire project is a sophisticated and continuing attemptto preserve the moral autonomy of the individual. 378 He pursuesautonomy in his legal theory by making law be about autonomy,379 byconfining judicial discourse to that point,380 and by permitting contro-versial claims about autonomy to be made in adjudication. 38 1 He

378 This is foundational to Dworkin's commitment to a liberalism defined interms of equal treatment and to an equality defined in terms of the neutrality of thestate. He claims that "[s]ince the citizens of a society differ in their conceptions 'ofthe good life, or of what gives value to life', the government does not treat them asequals if it prefers one conception to another, either because the officials believe thatone is intrinsically superior, or because one is held by the more numerous or morepowerful group": Ibid. at 127; R. Dworkin, Liberalism, in S. Hampshire, ed., PUBLICAND PRiVATE MORALITY (Cambridge: Cambridge University Press, 1978) 113 at 127.See also A MATrER OF PRINCIPLE, supra, note 253 at 181-204.

This appraisal of moral pluralism is the predicate of the whole of his legaltheory: See EMPIRE, supra, note 11 at 166, 213-17, 221, 411-13, that includes bothhis notion of the point of law (ibid. at 93) and his argument for law as integrity.Curiously, nowhere does Dworkin clearly articulate the status of the predicate; thatis, whether he is making a descriptive or a theoretical claim. If he is making adescriptive claim, (and he sometimes speaks as if this is the case: Ibid. at 214), thenpluralism and autonomy are contingent values. If (and this seems clearly the case)his claim is theoretical, then he must be asserting that difference in moral vision isunavoidable, and this would appear to commit him to some variety of moralskepticism. However, Dworkin expressly disavows skepticism (ibid. at 152, 441 n.19) by proposing that there are right - because better - answers in morals. SinceDworkin is not, therefore, a moral realist (see, e.g., R. Werner, Ethical Realism(1983) 93 ETmIcs 653), his moral pluralism predicate must be both a description anda prescription - pluralism is itself a right answer which happens contingently to bea value in the societies he addresses. But if this is the case, it is difficult to see howhe can conceive of adjudication as principled in any significant fashion. See A.Maclntyre, AFrER VmTUE: A STUDY IN MORAL THEORY, 2d ed. (Notre Dame:University of Notre Dame Press, 1984) at 252-53.

379 When Dworkin claims that the point of law is "to guide and constrain thepower of government" by prohibiting coercion "except as licensed or required byindividual rights and responsibilities flowing from past political decisions about whencollective force is justified" (EMPIRE, ibid. at 93), he is claiming that law is, in itsentirety, about the autonomy of individuals because law is, in this fashion, aboutwhen the state can impose a conception of the good life on them.

380 Law as integrity serves two purposes. It prevents the state from interferingin an unjustified way with moral autonomy and it prevents judicial officials fromthemselves becoming a threat to autonomy. It achieves the latter benefit by requiringofficials to be uniform in their ambitions and by defining those ambitions in a fashionthat precludes any thick notion of the good. Indeed, for officials, the sole good isthe prevention of unjustified state interference with moral autonomy.

381 It is necessary that there be controversy within the legal system; otherwise,the past could become a threat to autonomy by reducing discourse to "runic tradi-tionalism", an unreflective acceptance of state action: See EMPIRE, supra, note 11 at89.

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appears to think that together these initiatives will both preserve themoral autonomy of individuals outside the legal system and permitthem a critically reflective attitude towards the system. 382 I have justargued that Dworkin's third initiative fails - that the controversy hethinks he salvages within law is no controversy at all, and that themark of significant controversy is the speaker's banishment from thepractice. I want now to argue that Dworkin's legal theory also haseffects external to law and that, like Hart's, his theory at leasttrivializes external criticism so that even the discourse of the banishedbecomes insignificant. This, of course, does not necessarily mean thatDworkin has failed to secure individual autonomy in law. However, ifhis appraisal of law's ambitions has the implications I assign to it,then, at best, moral autonomy is secured contingently.

1. Deep ReasonsISurface Reasons

It is Dworkin's genius to recognize that the law we see - andparticularly, the settled surface of doctrinal discourse - resonatesdeeper theoretical and moral commitments. 38 3 Legal discourse is theo-retical because it is necessarily predicated upon some theory concerningboth the significance and the requirements of law; it is moral becausetheory, in this sense, requires a choice articulated in terms of substan-tive convictions of political morality.38 4 This understanding of thetheoretical and moral significance of law is critical for our purposesbecause it leads Dworkin to take two positions that have much to dowith the possibility of a practice of criticism external to law.

382 See, e.g., Dworkin's description of citizens in his "community of principle",ibid. at 189-90, 263, 413.

383 For this reason, every judicial opinion is, according to Dworkin, "a pieceof legal philosophy, even when the philosophy is hidden and the visible argument isdominated by citation and lists of facts": Ibid. at 90. Herculean methodology "showsus [this] hidden structure of.. .judgements": Ibid. at 265. See also ibid. at 217, 269,413; and TAKING RIGHTS SERIOUSLY, supra, note 221 at 67-68, 158.

394 This is so at two levels. Any particular theory will be comprised ofconvictions of both fit and substance, and choice among theories will be made interms of such convictions. Notice also that Dworkin thinks convictions of these sorts,and particularly, I suppose, convictions of appeal, implicate "large questions ofpersonality, life, and community on which [they].. .must rest": Ibid. at 101. I willaddress this matter below.

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It leads him first to conflate law and the good - the "is" withthe "ought". 85 This is required simply because, in Dworkin's view,moral conviction and judgment are constitutive of law. This, of course,is the whole point of both his interpretive theory and his proposal oflaw as integrity. Dworkin maintains that legal propositions are true ifthey both fit legal history and otherwise justify that history by showingit in its best light, which is to say, as cohering with and expressive ofthe best set of substantive convictions of political morality.386

This view, in turn, leads him to make a two part appraisal oflaw. First, because it concerns and expresses political morality, law isconstitutive of our social arrangements. As Dworkin says, law "makesus what we are". 387 Second, because law is justified - because thoseconvictions, at least as regards integrity, are the best convictions - itis imperial in nature because optimistic in attitude.

It is this appraisal that renders external criticism of law insignif-icant. Before I get to that, however, we must consider more carefullythe conflation from which it arises.

2. Conflating the "Is" and the "Ought"

The poles of the conflation are clear. On the one hand, there isthe object, a legal history comprised of past political decisions. Onthe other hand, there is a subject, the legal interpreter. Dworkinconflates the two by making the truth of propositions concerning theformer depend upon the propriety of moral convictions held by thelatter.388 This statement of the matter, however, is not sufficient for ourpurposes. We have to grasp the breadth and substance of the conflationmore closely before we can safely assess its significance.

385 Although Dworkin's notion of the good is particularly thin, its thinnessdetracts neither from my present point nor from the argument with respect to theimplications of conflation which I will offer below.

I should mention that I am not alone in noting this conflation: See, e.g., D.Lyons, Reconstructing Legal Theory (1987) 16 PHILOSOPHY AND PUBLIC AFFAIRS 379at 388, where it is noted that Dworkin "maintains that properly developed conceptionsof law fuse normative and analytic elements and that both legal theory and thecontinuing interpretation of existing law involve moral judgement"; H.J. Berman,Toward an Integrative Jurisprudence: Politics, Morality, History (1988) 76 CAL. L.REv. 779 at 785 n. 15, describes Dworkin as "groping towards" a jurisprudencewhich integrates traditional positivism, natural law and historical jurisprudence; J.Donato, Dworkin and Subjectivity in Legal Interpretation (1988) 40 STAN. L. REv.1517 at 1535 argues that Dworkin asserts the unity of fact and value; K. Kress, TheInterpretive Turn (1987) 97 ETHICS 834 at 842 declares that Dworkin's interpretivetheory is "an ingenious attempt to bridge the fact-value gap that plagues the field".

386 See EMPIRE, supra, note 11 at 225, 245.387 Ibid. at vii.388 1 am here treating convictions of fit, as Dworkin does, as ultimately a

matter of moral conviction: Ibid. at 239.

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The first thing we should notice is that permitting this movebetween "ought" and "is" has been at the centre of Dworkin'senterprise all along and is not merely an incident of his more recentexplorations in interpretive theory.389 The move has, however, come tofull theoretical age with his work in EMPIRE because it is his notionof the interpretive attitude which permits him to dissolve, at the mostfundamental of levels, the dichotomy between fact and value.

The interpretive attitude is foundational to both the existence of,and participation in an interpretive practice such as law.390 What alegal system in this sense requires to exist and what one requires toparticipate in it is a fusion of description and evaluation. One mustseek neither merely to describe the system nor grandly to evaluate it;rather, one must seek to construct the system by viewing it in a fashionthat entangles value and content. 391As we have seen, one does this inessentially three steps: first, by consenting to the consensus whichisolates and defines the practice descriptively or pre-interpretively;second, by agreeing that the practice so described has value; and third,by agreeing that its content, what is true of it, is responsive to thatvalue.

To assume all of this is to do many things. Clearly, it is tointertwine description and evaluation and content with justification. Itis also to entangle discovery with invention (if what the law is, is aconstructive matter in this sense, then discovery/invention is a "falsedichotomy") 392 and, more profoundly and fundamentally, the observerwith the participant (after all, we become participants by viewing thepractice in a particular fashion) and therefore, subject with object. Itis to declare that we are, at least as participants, what the law is. Iwill now attempt to show that this is to declare much and at muchexpense.

389 The move between "ought" and "is" became central to the theory of "thesoundest theory of law" that he proposed in TAKING RIGHTS SERIOUSLY (see supra,note 221 at 67-68, 79, 283) because that theory sought to hinge the truth of legalpropositions on a justification predicated on "political and moral theory": Ibid. at 67.See A MATTER OF PRINCIPLE, supra, note 253 at 147, where Dworkin states that"propositions of law are not merely descriptive of legal history,.. .nor are. theysimply evaluative in some way divorced from legal history. They are interpretive oflegal history, which combines elements of both description and evaluation but isdifferent from both." See also R. Dworkin, Law as Interpretation in W.J. Mitchell,ed., THE POLITICS OF INTERPRETATION (Chicago: University of Chicago Press, 1982)249 at 252, where he references literary theories "which challenge the flat distinctionbetween description and evaluation that had enfeebled legal theory".

I will argue below that the move ought not be part of his project if his projectis to preserve individual moral autonomy, for while it may serve to constrain thepower of judicial officials, it does so only at great expense to autonomy.

390 There is a single caveat on both counts; description and evaluation, the"is" and the "ought", fracture in wicked legal systems: See EMPIE, supra, note 11at 106-07.

391 Ibid. at 48.392 Ibid. at 228.

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3. Law's Ambitions

Because it combines content and conviction, legal practice"fuses. . .[the] moral and political lives" of participants. 393 By consti-tuting the law, participants are thereby becoming constituted by it.However, Dworkin does not think law's prowess ends there. On thecontrary, he thinks that law is constitutive on the grandest of scalesbecause it makes all of us, citizens as well as officials, "what weare". 39 4

This extension would not appear to be required by his generalinterpretive theory. It is, however, an appropriate result of its appli-cation to law and legal philosophy. Law as integrity is Dworkin'sproposal for the best conception of legal practice that his interpretivetheory requires. It is this proposal which, as we have seen, equatestruth with justification. 395 Law's grander ambitions arise from theconfidence born of this equation.

If, under law as integrity, truth and practice are one, then legalpractice ought be a self-confident and optimistic enterprise. 396 For legalpractice then becomes the story worth telling because it is simultane-ously true and good.397 It is just this that defines law's attitude: becauseit is the good story, it is a story that is worth telling repeatedly and inever-widening contexts. 398 The practice of justifying the past is imperialbecause it takes this attitude and because it tends, in consequence, tocolonization. I will conclude this part by describing the practice ofcolonization and by arguing that its effect is to trivialize externalcriticism of law.

Law is imperial in both its interpretive and post-interpretivemoments. The interpretive moment is imperial both in yield and inmethod. Its product is imperial simply because interpretation is con-structive. Unlike interpreters in literary practices, judicial interpretersare not just critics. They are authors - they add to the tradition theyinterpret. 399 Because they are to interpret the law by interpreting thepractice of other judges interpreting the law in precisely this fashion,their enterprise is continually expanding and productive. 4°° The Her-culean method is likewise imperial. 40 In his pursuit of the elegance

393 Ibid. at 189.394 Ibid. at vii.395 Constructive interpretations are "true if they figure in or follow from the

principles of justice, fairness, and procedural due process that provide the best[conception]... of the community's legal practice": Ibid. at 225.

396 See ibid. at 228, where Dworkin speaks about the optimism bred of integrity.397 Ibid. at 227.398 See ibid. at 190, 252, 413, where Dworkin discusses law's attitude.399 Ibid. at 229.400 Ibid. at 413.-1 The Herculean method is expressly a method: See ibid. at 239-40, 259; see

also TAKING RIGHTS SERIOUSLY, supra, note 221 at 130.

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and uniformity of coherence,402 Hercules and his human followers must"expand the range of [their]. . .study in a series of concentric cir-cles", 40 3 to include, if necessary, the whole of law in order to distin-guish, in terms of integrity, between interpretations which otherwisefit.4°4 The vistas of interpretation are for both reasons and in bothsenses endless - the hermeneutic circle will endlessly expand becauseexpansion is its very raison d'gtre.

The post-interpretive moment is imperial in consequence of all ofthis. It is the moment in which the interpreter "adjusts his sense ofwhat the practice 'really' requires so as better to serve the justificationshe accepts at the interpretive stage". 405 It is the stage in which theproduct of interpretation is made productive by being added to andthereby expanding the practice. The post-interpretive question, there-fore, is always in what direction or in what fashion to expand thepractice. Whether the practice ought to expand never becomes an issue.Indeed, according to Dworkin, different conceptions of law differ notin terms of their attitudes to law's ambitions, but in terms of theirassessment of the proper substance of empire. They differ, that is,"over the exact dimensions of the practice" 40 6 and "about the rightway to expand or extend the practice in areas presently disputed oruncultivated". 407

Law, then, is epic and its dreams are imperial. 408 By its verypractice, it seeks endlessly to capture the whole of social and politicallife. It is for that reason that law trivializes external criticism. Becauselaw, at every moment, contemplates the whole of the significant,criticism comes to "belong to law" 40 9 and claims of dissent becometransformed to petitions for colonization. 410 One's criticisms are sig-nificant only to the extent that law can come to contemplate their

402 See EMPmE, ibid. at 403, where Dworkin describes coherence in theseterms.

43 Ibid. at 402.-01 Ibid.

405 Ibid. at 66.4m6 Ibid. at 67.47 Ibid. at 99.408 Ibid. at 407-10.409 Ibid. at 408.410 Revolution might be a caveat to this. Unfortunately, Dworkin is strangely

silent on this matter. He does say practices like law have "the continuity. . .of a ropecomposed of many strands" (ibid. at 69), and he does contemplate the question,"[w]hich changes are great enough to cut the thread of continuity?": Ibid. at 69-70.But, he offers no theory of revolution or substantive change of any variety. Theremay, however, be very good reasons for these omissions. If not only justification,but, as I am now proposing, criticism also must in some way fit or be about apractice in order to count (see, e.g., Dworkin's discussion of Marx, ibid. at 75,408), then change - any change - becomes profoundly difficult because practiceprescribes only repetition.

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substance; otherwise, they are forever denied access to empire andbecome either barbarous or, worse still, gradually unimaginable. 41

From this perspective, it makes sense to say that law "fusescitizens' moral and political lives".412 It fuses them because both whatthe citizen is and what she or he may become awaits in law.41 3

Dworkin's citizens truly "live in and by the law" in both thesesenses. 414 They are constituted by the law prospectively as well asretrospectively; and if they are to have any dreams that count, law'sdreams must become their dreams. 415

V. CONCLUSION

Political technologies advance by taking what is essentially a politicalproblem, removing it from the realm of political discourse, and recastingit in the neutral language of science. Once this is accomplished theproblems have become technical ones for specialists to debate. . .. Atechnical matrix [is] established. By definition there ought to be a wayof solving any technical problem. Once this matrix [is] established .. ,there [is] -nothing else to appeal to; any other standards [can] be shownto be abnormal or to present merely technical problems. We are prom-ised. . . happiness through science and law. When they fail, this onlyjustifies the need for more of the same.4 16

Hart's and Dworkin's positivism sediments orthodoxy. Legal prac-tice is, for both, necessarily unimaginative morally because it is bothconsumed by incontinent ambition and bereft of any aspiration. It isaspirationless because officials are bound to the past, not only meth-odologically, but spiritually as well. Theirs is a practice which seeksto repeat that past through a solidarity of official opinion. Judicialactors cannot seek criticism - they cannot imagine a different way- because to criticize is to aspire that the practice be different andthat is both to contradict and renounce the practice.

411 See, e.g., Dworkin's passing discussion of Marxism, Dworkin states thatMarx's theory of justice is "not only radical but perhaps not really [a theory].. .ofjustice at all" (ibid. at 75) because it contests much that is taken as paradigmatic ofjustice. Later, Dworkin states that Marxism is not a candidate for law's dream becausethere is not "enough present law distinctively explained by his political philosophyto qualify for the contest": Ibid. at 408.

412 Ibid. at 189.413 Ibid.414 Ibid. at vii.415 The neutral matrix which Dworkin thinks constitutive of liberalism (see

supra, note 378) is, I am claiming, neutral neither in substance nor practice. On thecontrary, by colonizing at any given moment some values and excluding others, it isboth pursuing a vision of the good life and declaring others as, at least, insignificant.By linking the future so closely to the past, it is prohibiting any significant changeand instead, is tending to freeze present arrangements.

416 See Dreyfus & Rabinow, supra, note 7 at 196.

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But their practice is not, for that reason, without ambition. Justthe contrary: judicial practice is ripe with ambition because it is soinsolent. Law respects no boundaries save its own, and its boundariesare forever tentative because they are defined by ambition, an ambitionto expand and to contemplate more and more of social life and space.And, it is law's imperial ambition that renders orthodox or, if notorthodox, then at least insignificant, non-official discontent. Becauselaw declares the significant, there is neither a place nor any reason fordiscontent, and disappointment becomes the highest expression ofdissent. For both Hart and Dworkin, citizen practice is, therefore,expectational - a hope that law's imperial countenance will look atthem and at their desires favourably. But colonization comes at theprice of aspiration because only those desires which cohere withimperial practices are eligible. The rest, if there is any, is designatedto be insignificant, outside both the claim and practice of law'sambitions.

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