Indiana Dworkin: The Juristic Hero Defending Law's Empire, Study notes of Law

Download Indiana Dworkin: The Juristic Hero Defending Law's Empire and more Study notes Law in PDF only on Docsity! Indiana Dworkin and Law's Empire "A new look at ancient problems ofjudicial romance, philosophical mystery, and academic adventure." -Socrates "Join our Local Hero in this soaring spectacle through the exotic terrain of Modern Thought. Each confrontation more amazing and intriguing than the last." -The Mid-Atlantic "Set to an exciting tempo of incisive writing. You can share the for- gotten experience of Empire-building and marvel at the Palace of Principle." -The Old Republic "An enchanting performance-it will leave you breathless." -John Locke OPENING CREDITS Law's Empire. Written, directed, and acted by Ronald Dworkin.* Produced and distributed by Harvard University Press. Release date: 1986 Running time: 470 pp. Price of Admission: $20.00 Allan C. Hutchinsont I. THE STORY So FAR (OR JURISPRUDENTIAL ENCOUNTERS OF EARLIER KINDS) "Movies are dreams. They're daydreams you often get bad grades over when not concentrating on school work. You grow up being a daydreamer like I did and some day you take those daydreams and turn them into . . . something." -Steven Spielberg Indiana Dworkin needs little introduction. He is a juristic adventurer of international fortune and fame. Full of cosmopolitan dash and derring-do, Indy never shirks or ducks a challenge: He is a Man for All Legal Sea- * Professor of Jurisprudence, Oxford University, and Professor of Law, New York University School of Law. t Associate Professor, Osgoode Hall Law School, York University, Toronto, Canada. The edito- rial assistance of The Yale Law Journal, Jeff Goldsworthy, and Tim Pinos is greatly appreciated. 1. T. CRAWLEY, THE STEVEN SPIELBERG STORY 105 (1983). The Yale Law Journal sons. He thrives on and searches out opportunities to risk his professorial neck in crusades to slay academic dragons or to rescue philosophical dam- sels in distress. He is the classic hero who, armed only with the "bull- whip" of his wit and courage, defends Law's Empire against the intellec- tual barbarians who work toward its demise and the forces of legal evil that covet its moral prestige. In his own version of The Greatest Legal Story Ever Told, Indy finds himself in a procession of tight corners, close calls, and near-misses which he manages to survive by dint of his own ingenuity and imagination. With a knowing wink and deceptive ease, he reassures us that "I'm making this up as I go." But, not only does he survive these escapades unscathed, he manages to come through a stronger and better person for them, stronger in his conviction about Law's poten- tial and better in his ability to justify its Empire. With each assault on its authority and citadels, Law's Empire is buttressed and its dominion ex- tended. While others exhaust themselves in the hopeless search for the jurisprudential grail, Indiana Dworkin leaps to the defense of existing vir- tues. All his adventures end at the same place that they began-safe at home in the Palace of Principle. Law's Empire2 is Indiana Dworkin's first full-length feature film and, like his earlier efforts, is bound to be a massive box-office success. It is an action-packed, stand-'em-up-knock-'em-down extravaganza. Those earlier works, Taking Rights Seriously3 and A Matter of Principle," were collec- tions of short videos, little more than a sparsely edited "The Best of .... " Yet, although not essential to the viewer's enjoyment or under- standing, a familiarity with the Dworkin genre will enhance the viewer's experience and encourage a critical perspective. Dworkin captured the public imagination with Taking Rights Seri- ously. Although his dreams of Empire can be detected in that work, Dworkin's immediate project was to topple the positivist regime and its utilitarian ethic, and to dislodge H.L.A. Hart, its reluctant juristic pro- consul, with a naturalist putsch. Dworkin laid the ground for future im- perialism in Taking Rights Seriously, but more importantly, Indy per- formed sufficiently well in these early shorts to establish himself as The Man Who Would Be King and to give warning to all the other aspiring usurpers that he was the one to watch and beat. The significance of these early works must not be overlooked. Reworking the craft and insights of earlier American juristic moguls like Roscoe Pound, Benjamin Cardozo, Alexander Bickel, and Lon Fuller, Indiana Dworkin revived the flagging energies of political jurisprudence and brought his Technicolor touch to 2. R. DWORKIN, LAW'S EMPIRE (1986) [hereinafter by page number only]. 3. R. DWORKIN, TAKING RIGHTS SERIOUSLY (1977) [hereinafter TAKING RIGHTS SERIOUSLY]. 4. R. DWORKIN, A MATTER OF PRINCIPLE (1985) [hereinafter A MAIrTER OF PRINCIPLE]. Vol. 96: 637, 1987 Indiana Dworkin selves better: "No department of state is more important than our courts, and none is so thoroughly misunderstood by the governed."1 7 After this anguished cry of the frustrated and responsibility-laden leader, Dworkin reminisces about and relives the triumphs of more simple days. He assails the Plain-Facters who hold the law to be a morality-independent matter of historical fact. Wearing the contemporary mask of conventional sense and sculpted from the stone of Hartian positivism"' or Finnisian natural- ism,1 ' these anachronistic figures make mischief by a dogged use of the "semantic sting."20 Although Dworkin presents it as little more than a logical dodge, this argument holds that reasoned debate is possible only when parties share an interpretive horizon that contains substantially common definitions of terms. Those who have fallen prey to the semantic sting's "great mischief" thus place all argument into three categories: ar- guments about the logical consequences of agreed premises; arguments about the borderline meanings of generally agreed upon definitions; and futile discussions based on divergent definitions. Because those who deliver the semantic sting believe that, whatever else it might be, "Law . . . is not a grotesque joke,""1 they reject the suggestion that legal arguments fall into the third category. As a result, they waste their time searching for the generally accepted, but forever elusive, premises which must buttress legal discourse. Although the Plain-Facters' view commands considerable support, it is disposed of with a minimum of fuss. To Hercules, the Hartians, Finni- sians, and other victims of the semantic sting fail to capture the dynamic tension of the interpretive dimension in law. Unlike Michaelangelo's Pieta, with its unique artistry, their works are static and empirical monu- ments whose accounts fail both as descriptions of how judges struggle to fill the legal gaps, and as prescriptions of how judges should fill such gaps. Where there are complex and subtle disagreements of a theoretical and evaluative nature, these dolmens see only mechanical and empirical disagreements; "we are marked as [their] target by too crude a picture of what disagreement is or must be like."22 B. Jurisprudential Armageddon In effect, Indy uses these Plain-Facters as sparring partners to warm up for the more demanding struggle ahead. All interpretations take part 17. P. 11. 18. H. HART, THE CONCEPT OF LAW (1961). 19. J. FINNIS, NATURAL LAW AND NATURAL RIGHTS (1980). 20. Pp. 45-46. 21. P. 44. 22. P. 46. The Yale Law Journal in the ideological fray; there can be no position of moral neutrality or political fence-sitting. The real villains of the piece and threats to Law's Empire are those who have seen the interpretive light, but not its best light. Whereas some have been blinded by its intensity, others have mis- taken its source and direction and still others have become enthralled by its kaleidoscopic refractions and optical illusions. In confronting these rogue interpreters, Dworkin follows a familiar strategy in engineering their downfall: Having divided them, he seeks to conquer by engaging them in an ennervating game of jurisprudential cut-and-thrust. They are made to stumble over their own flaws and faults and Indy allows them to surrender in the face of his withering intellectual artistry. By way of in- surance, he makes sure that he entices these competitors onto the labyrin- thine territory of some cannily chosen legal set-pieces: Riggs v. Palmer,2" Tennessee Valley Authority v. Hill,24 McLoughlin v. O'Brian,25 and Brown v. Board of Education.26 For Dworkin, interpretation is a constructive affair. The raw data often do not determine the ascription of value, in the sense of allowing a variety of interpretations-value judgments. Thus, interpretation "is a matter of imposing purpose on an object or practice in order to make of it the best possible example of the form or genre to which it is taken to belong."2 The challenge in understanding this dynamic interaction between object and purpose is not to retrieve some original purpose or authorial inten- tion, because the primacy of this task can only be a consequence of prior interpretive decision. Instead, such understanding demands a self-reflective set of interpretive convictions about what counts as the thing to be inter- preted, the extent of fit with those data required by any suggested justifi- cation, and a body of substantive beliefs about the kinds of justifications that show the data in the best light. Although the nature of the first two convictions must be roughly shared within the relevant community, the third must be relatively independent or else it might not be possible to "distinguish interpretation from invention."' 2 ' Fortunately, there is "a fairly uncontroversial preinterpretive identification of the domain of law."" Although there is more debate about the appropriate convictions of "fit" and "substance," Indy holds that there is a sufficiently abstract 23. 115 N.Y. 506, 22 N.E. 188 (1889) (when statute of wills is silent, common law proscribes murderer's inheriting from victim). 24. 437 U.S. 153 (1978) (snail darter case; appropriations may not be used to modify or repeal environmental legislation by implication). 25. [1983] 1 A.C. 410 (plaintiff received damages after learning about accident to family members and visiting hospital, despite previous rule that generally denied recovery for nervous shock). 26. 347 U.S. 483 (1954). 27. P. 52. 28. P. 68. 29. P. 92. Vol. 96: 637, 1987 Indiana Dworkin and uncontroversial "description of the point of law most legal theorists accept so that their arguments take place on the plateau it furnishes":3 0 Governments have goals: they aim to make the nations they govern prosperous or powerful or religious or eminent; they also aim to re- main in power. They use the collective force they monopolize to these and other ends. . . . [T]he most abstract and fundamental point of legal practice is to guide and constrain the power of govern- ment in the following way. Law insists that force not be used or withheld . . . no matter how beneficial or noble these ends, except as licensed or required by individual rights and responsibilities flow- ing from past political decisions about when collective force is justified. The law of a community on this account is the scheme of rights and responsibilities that meet that complex standard: they license co- ercion because they flow from past decisions of the right sort. They are therefore "legal" rights and responsibilities."' On this "plateau," Dworkin scripts and restages the pitched battles of contemporary jurisprudence. Three contending forces of juristic wisdom are pitted against one another in a deadly struggle for control of Law's Empire: Conventionalism, Legal Pragmatism, and Law as Integrity. In short, Conventionalism insists that legal rights and responsibilities can be recognized only when there exists explicit consistency with past decisions, and that "when the force of convention is spent judges must find some wholly forward-looking ground of decision."13 2 In contrast, Pragmatism is more skeptical; it maintains that consistency with past decisions has no intrinsic value in deciding what is best for the community's future, but may be relied upon for strategic or expedient reasons. Law as Integrity brings together Conventionalism and Pragmatism, as Dworkin suggests, in a novel and convincing blend. It goes beyond explicit consistency with the legal past by looking to "the principles of personal and political mo- rality the explicit decisions presuppose by way of justification."3 3 Legal integrity offers more than the appeal of predictability and procedural eq- uity "by securing a kind of equality among citizens that makes their com- munity more genuine and improves its moral justification for exercising the political power it does."'3 4 Law as Integrity supplements the stiffness of conventionalism by taming the wildness of pragmatism. In this titanic encounter, there is never any doubt about the outcome for, we all know, 30. P. 93. 31. Id. 32. P. 95. 33. P. 96. 34. Id. The Yale Law Journal their attendant obligations.""" Law as Integrity is the organic bond of any political association that goes beyond bare similarity of interest and as- pires to fraternal status. Although people have no need to love each other, as "this would mean the extinction not the universality of love," 48 they must recognize that group obligations are special, that they are personal and not owed to the group as a whole, that each member must be con- cerned for the well-being of others, and that that concern must be equal for all members. What does this mean for political practice and organization? Indy's an- swer is predictably predictable. Dismissing the possibility of "community as a matter of circumstance and as a matter of rules,"' 9 he champions "the community of principle": [M]embers of a genuine political community ...accept that they are governed by common principles, not just by rules hammered out in political compromise. Politics ... is a theater of debate about which principles the community should adopt as a system ...not the different story . . . in which each person tries to plant the flag of his convictions over as large a domain of power or rules as possi- ble. . . .So each member accepts that others have rights and that he has duties flowing from that scheme, evei though these have never been formally identified or declared. . . . [T]hese obligations arise from the historical fact that his community has adopted that scheme, which is then special to it, not the assumption that he would have chosen it were the choice entirely his. In short, each accepts political integrity as a distinct political ideal and treats the general acceptance of that ideal, even among people who otherwise disagree about polit- ical morality, as constitutive of political community.5" With his typical feel for realpolitik, Dworkin concedes that integrity might not hold much sway in a political community that was "abstract and timeless" and "perfectly just and fair."15 ' But it does represent the best interpretation of "a morally pluralistic society."' 52 Accordingly, Indy's Janus-faced Law as Integrity puts paid to thl challenge of the backward- looking Conventionalists and the forward-looking Pragmatists: He defeats both by becoming both. All that now remains for Dworkin and Hercules to do is to complete the rout by revealing the detailed route through the doctrinal maze of Elmer and his friends to the Palace of Principle and, by 47. P. 206. 48. P. 215. 49. P. 210. 50. P. 211. 51. P. 216. 52. P. 213. Vol. 96: 637, 1987 Indiana Dworkin so doing, to enhance the power of Law's Empire. They give us a sneak preview of "the unfolding political narrative" 3 that is contemporary legal practice. C. Through the Maze Reflecting the lawyer's cultivated disregard of history, Law as Integrity does not seek to recapture the legal past, but to reconstruct it for the pre- sent as "a single unified novel that is the best it can be."" In this way, judges are "novelists with epics in mind."'55 Interweaving textual engage- ment with political judgment, Indy dispatches Hercules on a series of doc- trinal excursions. His first voyage of discovery is through the tortious ter- rain of the McLoughlin Challenge.56 After an arduous tour, Hercules completes his labors by declaring that the best interpretation of the emo- tional damage cases is that compensation is available if emotional injury is "directly caused by careless driving and foreseeable by a reasonably thoughtful motorist."' 57 Yet, and this is crucial, the key to the doctrinal chest is not the choice of the right answer, but the cultivation and adop- tion of the correct interpretive attitude: "Law's empire is defined by... an interpretive, self-reflective attitude addressed to politics in the broadest sense."5 8 A different decision is unremarkable provided that the judges were "trying to find, in some coherent set of principles about people's rights and duties, the best constructive interpretation of the political struc- ture and legal doctrine of their community." 59 Having laid out the required interpretive mind-set of those who serve Law's Empire, Dworkin proceeds to lead us along the common law, stat- utory, and constitutional pathways of the imperial labyrinth that legal in- tegrity has illuminated. He begins by dealing with the economic approach to the common law; his critical moves are well-known and well- rehearsed.6 0 Although meeting a reasonable threshold of doctrinal fit, the justification of wealth as a cherished value is indefensible as an ethic for social or personal morality. However, with characteristic theoretical thrift, Indy argues that market-simulating behavior is defensible from a more egalitarian perspective. Although there is no general duty for people to act always to increase communal happiness, is there not, he asks, "a duty to take others' interests as of equal importance . ..when abstract legal 53. P. 225. 54. P. 229. 55. P. 409. 56. See supra text accompanying note 25. 57. P. 258. 58. P. 413. 59. P. 255. 60. See A MATrER OF PRINCIPLE, supra note 4, at 237-89. The Yale Law Journal rights conflict?""' From the variety of equality theories on offer, Dworkin opts for "equality of resources"-not a constant levelling of resources, but a continuing effort to compensate the less talented beyond what their mar- ket transactions produce. This "fits our legal and moral practices no worse [than any other] and is better in abstract moral theory." '62 Conse- quently, if rights conflict, we should forego our plans when the damage to our overall life-plans will be less than the damage to others'. Further- more, if resources are fairly evenly divided, damage is to be assessed by "comparative financial harm," 3 the monetary amount each would be pre- pared to pay the other not to carry on with her plans. Although a direct repair to equality is appropriate in common law cases, it becomes less so in conflicts arising under statutory schemes. Armed with a whole host of assumptions about the legislative process, Dworkin has Hercules wend his way through the fragile environment of the Snail Darter Clash. As an intellectual diversion, Hermes makes a cameo appearance as the mythic hero of those who seek to interpret a statute by discovering the communicative will of the legislators. Hermes is "just as patient" as Hercules and "almost as clever."64 Their encounter is rather tedious and contrived, however, for Hermes is in fact "Hercules' twin,"65 albeit an inferior relation who can only make something of him- self if he emulates the Herculean method. The upholding of Law as In- tegrity means that "Hercules interprets not just the statute's text but its life, the process that begins before it becomes law and extends far beyond that moment. He aims to make the best he can of this continuing story, and his interpretation therefore changes as the story develops."6 Finally, Dworkin permits Hercules to lead us across the Olympian range of the Constitution and back home to the heartland of Law's Em- pire. Our training in the statutory foothills of Law as Integrity has pre- pared us well for this climb and its more rarefied philosophical atmo- sphere. As the Constitution is the foundational law, its interpretation must both fit the most basic institutional arrangements of political power and be justified by abstract political theory.6" In the climb to the interpretive summit, Indy and Hercules clamber over the exhausted bodies of earlier failed expeditions, like those of the active/passive and liberal/conservative interpretation theories. The last obstacle to be surmounted is the Brown Saga. After much huffing and puffing, Hercules declares that, although 61. P. 296. 62. P. 301. 63. P. 306. 64. P. 317 (emphasis added). 65. P. 337. 66. P. 348. 67. P. 380. Vol. 96: 637, 1987 Indiana Dworkin the right places, the universe will reveal its secrets to us; the unblinking eye will illuminate dark corners of existence. The use of such stratagems as "double blinds" to counteract prejudice works to underline, not modify, the reliance on the visual method. Clearly, the Cartesian icon still holds contemporary society in its spell: The "objective observer" is the door- keeper at the temple of scientific truth. Within such a culture, the attain- ment of knowledge is a clinical and voyeuristic activity. Yet, in all this, the politics of seeing are overlooked or ignored. Vision is deformed by interest and perspective; there is no image that is not pre- censored. What we believe is not what we perceive and what we perceive is not what we see; we see with much more than our eyes. When we "look and see" more happens than the passive physical connection between light waves and optic nerves. To "look and see" involves a whole apparatus of mental images, intellectual habits, social assumptions, imaginary con- structs, and, often, a wilful act of attention. The "male" stare of the Dworkinian eye distorts the world in at least two ways: It objectifies and desensitizes the world of personal relations and it places part of the world out of sight. The eye sees, but it does not always understand. By honing our visual skills at the expense of our other senses, we lose in intimacy and engage- ment what we gain in detachment. The rational eye divests people of their history and their experience: It breeds estrangement and alienation. Yet this lack of involvement in the rich emotions of life enables a distanced control. By freezing and fixing the fluidity of social life, the staring eye is better able to control it. The words of Susan Sontag highlight the shared ideological shortcomings of photography and jurisprudence: "Through photographs, the world becomes a series of unrelated, freestanding parti- cles . . . .The camera makes reality atomic, manageable, and opaque * . . [T]he habit of photographic seeing-of looking at reality as an ar- ray of potential photographs-creates estrangement from, rather than union with, nature."76 In Dworkin's world, there are no settled relations, bonds of dependency, nor lasting ties. It is the moral terrain of middle- class America, where a comfortable isolation is interrupted by occasional confrontations that are quickly defused, before life returns quickly to nor- mal. It is a robust world in which people stand alone and only form alli- ances to further their own interests. Indeed, Indy himself represents the epitome of the good imperial citizen: an independent and decisive spirit who has the moral courage and foresight to know what integrity demands. In short, he is the Man of Principle. The other way that the jurisprudential stare affects the representation 76. S. SONTA;, ON PHOTOGRAPHY 22-23, 97 (1977). The Yale Law Journal of the world is through its artful filtering out of certain images and inter- ests. For, as we all know, a way of seeing is always a way of not seeing; sight and blindness are simultaneously present. Jurisprudential cinema is the drama of the visible and the invisible. It is often the silences that speak most and the spaces that reveal most. Indeed, for thirty percent of the time that a film is on the screen, the screen is blank. So it is with Law's Em- pire. It is an almost exclusively male affair; Dworkin's metaphysical com- mitments conceal the man-made and man-serving construction of reality by making women's experience and standpoint unseen or trivial. In Law's Empire, women are best represented when they are absent. Those women who do make it to the silver screen are stereotypically "female." In his romp through the jurisprudential jungle, Indy encounters only five women: the distressed and nervous Mrs. McLoughlin," the dimwitted Senator Smith,"8 the rebellious daughter, 9 and Lear's daughters, the sav- age Goneril and the treacherous Regan."0 Law's Empire is a male bastion in which women must become "as important as men"' to be recognized as its citizens. In a paradoxical sense, Law's Empire is a land of the blind in which the one-eyed lawyer has become king. Because people are reduced to prin- cipled dependence, the ability of lawyers to see principles has given them power. Yet the jurisprudential gaze not only fails to see that there are many different scenes to shoot, locations from which to film, and cameras to use, but it also uses the glassy stare of ahistorical reason to the exclu- sion of other ways of being in and reacting to the world. The project of radical jurisprudence must be one "of jamming the theoretical machinery itself, of suspending its pretension to the production of truth and of mean- ing that are excessively [uniocular]." 8' 2 lit must strive to open up our thoughts to the manifold other ways of experiencing and living in the world. Rather than focus exclusively on the relating individuals, attention must shift to include the more subtle, sustaining, and often elusive charac- ter of the relation itself. We must explore and expand the rich and re- warding possibilities for intersubjective experiences. An acceptance of in- tersubjectivity helps us to come to terms with our vulnerability to and dependence on others, our commitment to and responsibility for others. By viewing the individual self as constituted in and through inteisubjective experience, we can more fruitfully understand the notions of autonomy and solidarity; criticism and commitment, innovation and connection can 77. P. 24. 78. P. 321. 79. P. 205. 80. P. 15. 81. P. 204. 82. L. IRIGARAY, SPECULUM OF THE OTHER WOMAN 78 (1985). Vol. 96: 637, 1987 Indiana Dworkin be mutually supportive. By emphasizing intersubjectivity, we can better avoid the over-socialized fate that an unrelieved communitarianism promises and the splendid anomie that a full-blooded liberalism has effected. Through the Lens Bestly (From Film Community) Dworkin's directorial style is self-confessedly of the "best light" school of jurisprudential cinematography. He takes very seriously the idea that "interpretation strives to make an object the best it can be." 83 He not only adopts this as a narrative injunction, but also projects this preference onto Indy such that his juristic credo demands "the best justification of legal practice as a whole."'" Filmed through a battery of rose-tinted lenses and filters, Law's Empire has a surreal and sentimental gloss. Dworkin's art does not mimic legal life, but idolizes and fantasizes it as an almost perfected project of human endeavor. Of course, all filming requires cam- eras to be situated somewhere and operated by some directing eye. Yet, while the "worst light" school of jurisprudential cinematography is exces- sively bleak and pessimistic in its imagery and symbolism, the "best light" approach wants to see many more silk purses than sows' ears. Its opti- mism is contrived and ultimately self-defeating. While many think of the U.S.A. as becoming ever more the United States of Anomie, Dworkin gazes upon it and represents it as a United States of Association. Where others see despair and isolation in American political and social life, Dworkin sees an enviable community of personal contentment and social solidarity. Dworkin manages to effect a spiritual aestheticism in a world of moral asceticism. Indeed, Law's Empire is por- trayed as a civic community of fraternal responsibility, a moral agency of principled proportions. Bonded together by the political virtue of integrity, Law's Empire is "a special form of community, special in a way that promotes its moral authority to assume and deploy a monopoly of coercive force."'85 Yet, no matter how lyrical or rhapsodic the quality of Dworkin's political cinematography, it is simply impossible to ignore experience suf- ficiently to give credence to this fraternal imagery. As Dworkin says of other communal tropes, it "rings hollow as an expression of fraternity."86 The fraternal essence of Law's Empire is the existence of associative obligations. "Bare" geographic or genetic communities can become "true" communities if they meet the institutional and personal conditions of 83. P. 53. 84. P. 152. 85. P. 188. 86. P. 212. The Yale Law Journal wishes in cultures that give parents power to choose spouses for daughters but not sons?""8 In a few short frames, Dworkin inadvertently captures the oppressive power relations that characterize Law's Empire; the famil- ial setting is the wider political environment writ small, the private is the public. Assuming that in such cultures it is possible that "women are as important as men,"99 Dworkin explores whether such an "isolated" act of paternalism can place strong obligations on a daughter. Dworkin con- cludes that in such circumstances, "a daughter who marries against her father's wishes ...has something to regret. She owes him at least an accounting, and perhaps an apology, and should in other ways strive to continue her standing as a member of the community she otherwise has a duty to honor."100 Surely little needs to be said about the powerful and destructive dynamic at work; it is oppression of women masquerading as traditional honor. What does her father owe her? How is he treating her as an equal? How has she participated in this decision? What is the source of her duty? Duty is assumed through mutual connections and not imposed in the name of principle. Yet, despite its offensiveness, this familial cameo is not aberrational. In Law's Empire, political life is organized as a grand national seminar. Evoking traditional jurisprudential symbolism A la Rostow,101 Dworkin casts judges as republican schoolmasters. Deciding upon the agenda and appropriate principles of justice in the cloistered atmosphere of the faculty common room, they transmit these values to the masses. Education be- comes an alienating exercise in the rote learning of principled values; any attempt to encourage participation in or questioning of the formation or wisdom of these values is deplored. Education becomes the heart and mus- cle of social control and imperial conformity. The cult of the teacher/ father-figure serves to foster an inegalitarian sense of cognitive and moral superiority. This is not the stuff of the civic good life, but the hierarchical caste of empire. In a true community, all imperial trappings would be banished: Political knowledge would become a matter of practical, popu- lar, and interrelational judgment that works to recast the world in its own developing and experimental image. Dworkinian philosophers would be exiled, for "[g]enuine philosophers are. . . commanders and legislators: they say, 'thus it shall be ... , ",o Democracy abhors such politics. 98. P. 204. 99. Id. (emphasis added). 100. P. 205. 101. See Rostow, The Democratic Character of Judicial Review, 66 HARV. L. REv. 193, 208 (1952). 102. F. NI-rzSCHE, BEYOND GOOD AND EVIL #211 (W. Kaufmann ed. 1966). Vol. 96: 637, 1987 Indiana Dworkin Off the Plateau (From The Lizard) - The least satisfying encounter in Indy's adventure is the encounter that never takes place-his jurisprudential stand-off with the Glinsk. These are a modern and eclectic bunch of academics (a.k.a. The Crits) who maintain, so Dworkin thinks, a global internal skepticism toward Law's Empire: They deny the possibility of a coherent and unified inter- pretation of legal practice. Over the past decade, they have generated a rich and radical body of tribal literature. The story they tell is vast and varied. Its textual heart lies in the historical insistence that legal reasoning is not only indeterminate and contradictory, but serves to sustain political hierarchy and social domination. To avoid a geniune locking of juristic horns, Indy relies on the full range of his rhetorical skills. As a prelude to being conquered, the Glinsk are first divided by a clas- sic piece of Dworkinian obscurantism. Without bothering to identify any real-life skeptics and without reference to skepticism's own intellectual traditions, Indy distinguishes the Glinsk from the non-metaphysical Ext- skeps who make the external and disengaged claims that do not challenge the conduct of interpretation, but merely reject its epistemological valid- ity.103 In effect, Indy confers on the Glinsk the status of official opposi- tion. Yet his distinctions are crude and contrived; they do not respect the intellectual or genealogical self-understanding of the Skeptical Nation. The Glinsk and the Extskeps are not genetically pure, but interbreed in many complex ways. It is typical of Indy's imperial anthropology that he classifies and comprehends all others in accordance with his own philo- sophical and epistemological lights. Conveniently forgetting his own criti- cal injunction that "there is no position of interpretive neutrality," he stands outside the skeptical tradition and imposes his own political predis- positions on their tribal traditions. Indy fails to extend that interpretive generosity he demands others extend to him: He refuses "to make of it the best possible example of the form or genre to which it is taken to be- long."104 As a story of contradiction and ideology, he does not read it in its best light by interpreting it as a tale of coherence and ideals. If only he were anything approaching consistent, Indy would find that his interpre- tive weapons cut both ways. Having converted the Glinsk into an interesting instance of scholarly counter-culture, he proceeds to patronize them. Indy confesses that "[t]heir work is useful to Hercules, and he would neglect it at his 103. Pp. 76-86. 104. P. 52. The Yale Law Journal peril,"" 5 but he concludes, without actually examining any arguments, that they "have so far been spectacular and even embarrassing fail- ures."' 8 Indy's style is philosophical debate by fiat, a matter of imperial decree rather than engaged argument. He pats the Glinsk collectively on the head and tells them to come back when they have grown up. He sug- gests that the Glinsk have struggled to demonstrate only that a flawed account of law fits as well as a smoother one; he argues that "[n]othing is easier or more pointless."10 The task of jurisprudential manhood, accord- ing to Indy, is to "show that the flawed and contradictory account is the only one available."1 ' This is exactly the task that the Glinsk have un- dertaken and accomplished. Indy's decision to note rather than face them is not an act of colonial superiority, but a gesture of jurisprudential cow- ardice. Indy may be the present king of the jurisprudential castle5 but the dirty rascals are already inside the gates. Even assuming that Dworkin was prepared to face the Critical chal- lenge, he has stage-managed his enactment of the jurisprudential Arma- geddon so well that The Crits would fare no better than the Convention- alist or Pragmatist forces. The "plateau" of conflict 09 is situated in a theoretical environment and at a level of philosophical abstraction that preempt their participation. Indeed, it is this very kind of apolitical theo- rizing, with its loaded epistemological standards and reduced hermeneutic horizons, that the Critical project is most at pains to deconstruct and re- ject.110 With its conditions of "individual right" and "past decisions of the right sort," to expect The Grits to agree to such a venue is like asking a fish to swim in a pool of oil so that it will swim faster and with less resistance than in water .... A Wicked Weakness (From The Popular Press) the flashbacks to the horrible days of Nazi Germany and Civil War America are particularly disturbing. The "too wicked" scenes of in- stitutionalized slavery and anti-semitism are brutally graphic. Yet Dwor- kin's technique and its theoretical underpinnings are at their weakest and most exposed in these moments. Although still on the side of the gods, 105. P. 273. 106. P. 274. 107. Id. 108. Id. 109. See supra text accompanying note 30. 110. See Hutchinson & Monahan, Law, Politics, and The Critical Legal Scholars: The Un- folding Drama of American Legal Thought, 36 STAN. L. REV. 199 (1984); Hutchinson, Part of an Essay on Power and Interpretation (With Suggestions on How To Make Bouillabaise), 64 N.Y.U. L. REv. 830 (1985). Vol. 96: 637, 1987 Indiana Dworkin scenes, Dworkin explains that his project "centers on formal adjudication, on judges in black robes, but these are not the only or even the most important actors in the legal drama."11 As in the pornographic film trade, judicial fetishism is no less a fetish because it is dignified with eu- phemistic garb. The whole work is an indulgent exercise in judge-watch- ing. The momentary parade of "legislators, policemen, district attorneys, welfare officers, schoolboard chairmen . . . bankers and managers and union officers"119 merely serves to emphasize their complete absence from Indy's adventures and to highlight the judicial center of Law's Empire. From these opening moments, the production hardly ever moves beyond escapist fantasy: Law's Empire is a travelogue through the intellectual landscape of Dworkin's jurisprudential mind. His psychic opponents bear little resemblance to their real-world counterparts. Indeed, Dworkin con- cedes that the juristic dissidents are little more than fragments of his own fertile imagination: While "each [deliberately constructed conception of le- gal practice] captures themes and ideas prominent in that literature," the conceptions "are not meant precisely to match the 'schools' of jurispru- dence. . . and perhaps no legal philosopher would defend [them] exactly as I describe [them]." 120 Although his motives might be honorable, the result of Dworkin's effort is a massive act of condescension and arrogance. Dworkin offers his reconstituted versions of legal thought as "more illu- minating than the stale battles of the texts."1 21 Yet it is difficult to escape the conclusion that he "constructs" and "illuminates" his adversaries only to defeat them more easily. It is a tempting but illegitimate technique. As in the musicals of the 1930s, Dworkin seems to be hoping that Indy will lure back many of the scholarly malcontents to the legal fold with his own modernist brand of jurisprudential romance. In a cleverly cast and lavishly choreographed production, the insouciant Hercules steals the show with his effortless combination of urbane philosophical charm and rough-house skills of realpolitik. Yet, when you have seen one Indiana video, you have seen them all; the intended mythic massage for the bruised judicial ego is in danger of becoming a gratuitous pummelling. The appeal of Indy's bootstrap trickery is decidedly short-lived and ulti- mately self-defeating. The constant effort to inject the vivid colors of he- roic adventure into the dreariness of daily life in contemporary society defeats itself by heightening future expectations and existing frustrations. Dramatic tension turns to tedium and what Dworkinian lawyers consider brilliant becomes merely boring; there is a limit to the fascination of 118. Id. 119. P. 12. 120. Id. 121. P, 94. The Yale Law Journal watching lawyers roll up the stone of Sisyphus by dint of the paring and parsing of endless tomes of law reports and philosophical treatises. The identification of universal principles in the soil of parochial facts is not the mark of the critical thinker, but the obsession of the formalistic gardener. While the achievement of turning this task into an elevated art form is not to be underrated, its credibility and value are beginning to wear extremely thin. HARPOON'S INDEX It matters how judges decide cases.1 2 No department of state is more important than our courts .... 113 The United States is a more just society than it would have been had its constitutional rights been left to the conscience of majoritarian institutions."24 [T]he social revolution that [Brown] announced was both national and foundational. The courts developed a distinct jurisprudence of racial integration, neither entirely successful nor entirely coherent, but nevertheless largely a credit to law. 25 Percentage of black children who live below the poverty line: 47.3.126 Percentage of non-black Americans who say that there should be a law against interracial marriage: 28.127 Percentage of non-black Americans who say that blacks "should not push themselves where they are not wanted": 58.128 Chance that a white male in the U.S. will be murdered in a given year: 1 in 9927.129 Chance that a black male in the U.S. will be murdered in a given year: 1 in 1539.130 122. P. 1. 123. P. 11. 124. P. 356. 125. P. 391. 126. UNITED STATES DEP'T OF COMMERCE, BUREAU OF THE CENSUS, STATISTICAL ABSTRACT OF THE UNITED STATES 1985, at 455 (105th ed. 1984) [hereinafter 1985 ABSTRACT) (1982 data). 127. T. SMITH, A COMPENDIUM OF TRENDS ON GENERAL SOCIAL SURVEY QUESTIONS 169-70 (1980) (1977 data). 128. Of 751 white respondents, 434 agreed "strongly" or "slightly" to the statement. NATIONAL OPINION RESEARCH CENTER, GENERAL SOCIAL SURVEY (Question 126, Feb. 4, 1985). 129. 1985 ABSTRAcr, supra note 126, at 170 (10.4 per 100,000; 1981 data). 130. Id. (64.8 per 100,000; 1981 data). Vol. 96: 637, 1987 Indiana Dworkin Percentage of black high school graduates over 16 who are unemployed: 18.3.131 Percentage of white high school dropouts under 25 who are unemployed: 15.2.132 Percentage of blacks unemployed in 1984: 17.2.133 Percentage of whites unemployed in 1984: 7.2.134 Percentage increase in ratio of black to white unemployment rates be- tween 1965 and 1984: 20.135 Percentage of elected officials who were black in 1985: 1.2.136 Earnings of black families as a percentage of earnings of white families: 56.137 Percentage of black families below poverty level: 32.4.18 Percentage of white families at poverty level: 9.7.139 Ratio of male black children dying in first year of life to male white chil- dren dying in first year of life: 1.8 to 1.40 Percentage of persons in New Orleans who are black: 50.141 Percentage of qualified applicants for police in New Orleans who are black: 40.142 Percentage of police officers in New Orleans who are black: 2.143 Chance of an American being in state prison on any given day: 1 in 800.144 Chance of a black male American being in state prison on any given day: 1 in 33.145 Median income for all black families in 1983: $14,506.146 Median income for all white families in 1983: $25,757.147 Median income of black families as a percentage of that of white families in 1970: 61.148 131. Id. at 407 (1984 data; comparable figure for whites is 7.4%). 132. Id. (1984 data; comparable figure for blacks is 27.3%). 133. Id. 134. Id. 135. Id. (8.5/4.3 in 1965; 17.2/7.2 in 1984). 136. JOINT CENTER FOR POLITICAL STUDIES, BLACK ELECTED OFFICIALS 11 (1985). Blacks constitute 10.8% of the voting age population. Id. 137. Clauss, Keynote Address, 13 N.Y.U. REv. L. & Soc. CHANGE 225 (1985). 138. 1985 ABSTRACT, supra note 126, at 456 (1983 data). 139. Id. 140. Id. at 71 (2165 blacks per 100,000; 1182 whites per 100,000; 1981 data). 141. Clauss, supra note 137, at 227-38. 142. Id. 143. Id. 144. See Blumstein, On the Racial Disproportionality of U.S. Prison Populations, 73 J. CRIM. L. & CRIMINOLOGY 1259, 1260 (1982). 145. Id. 146. 1985 AEs'RACr, supra note 126, at 446. 147. Id. 148. Id. (black family income: $16,111; white family income: $26,263).