Dworkin's 'Imperialism' and Socio-Legal 'Empiricism'

Abstract

This is an essay not in, but about, socio-legal studies.1 It is about the relationship between that discipline and analytical jurisprudence in its Dworkinian guise. It will examine Dworkin's attitude to socio-legal studies, and some socio-legal criticisms of the rights thesis. In particular, I will try to reconstruct a 'sociologically interesting' Dworkin, which I will try to defend against conventional socio-legal readings of Dworkin, as well as against Dworkin himself. At the centre of Dworkin's theory there is a paradox. On the one hand, his approach seems to mark a shift from the sterility of an analytical jurisprudence, more or less exclusively concerned with giving definitions of law, legal systems, rights, rules, and so on. For Dworkin, jurisprudence exists in legal practice itself, where it is merely 'the general part of adjudication, silent prologue to any decision at law'.2 Indeed, his critique of positivism seems to depend on such a particularist view. How does Dworkin try to persuade us that Hart is wrong in giving a two-tiered account of legal reasoning, one where lawyers lurch from considerations of what the law is to what it ought to be? Dworkin directs us to the 'argumentative structure' (LE 14, 15) of legal practice. Legal theories are displayed as competing accounts of practice, their adequacy to be judged firstly along a dimension of'fit'. Surely this, if anything does, seems to invite some extended piece of socio-legal research and reflection. On the other hand, however, Dworkin, having built a bridge halfway, seems to destroy any possibility of being reached from the other side. His work is studded with crude characterizations of what legal sociology amounts to. It is said to be empiricist (LE 11-15) and instrumentalist3 in orientation, individualist in its methodology, (LE 64) and concerned essentially with causes not purposes (LE 52).4 It asks 'external' questions about class or economic dererminism (LE 12), rather than 'internal' questions about the nature of legal argument. And even lay attitudes to the law are rejected as a 'sad affair of empty slogans' (LE 11). In short, he both requires and rejects the possibility of a compatible sociology of law.s This leaves him stranded midstream, an easy target for those taking pot-shots from the banks of both jurisprudence and socio-legal studies.