An earlier version of this paper was given to the Philosophy Department at San Francisco State University, May 12, 1989.1 would like to thank the members of the Department for valuable comments and suggestions. Thanks are also due to Steve Burton, Leslie Francis, Thomas Grey, Kate Massey, Edward Rocklin, Laurie Shrage, and Richard Wasserstrom, who commented on earlier drafts.

1. There are a number of useful introductions to the critical legal literature. See, e.g., Hutchinson, Allan C. (ed.), Critical Legal Studies, (Ottawa: Rowman and Littlefield, 1989);Google Scholar; Kairys, David (ed.), The Politics of Law: A Progressive Critique, (New York: Pantheon Books, 1982);Google Scholar Kelman, Mark A Guide to Critical Legal Studies, (Cambridge: Harvard University Press, 1987);Google Scholar Unger, Roberto The Critical Legal Studies Movement, (Cambridge: Harvard University Press, 1986);Google Scholar “Symposium and Critical Legal Studies” (1984), 36 Stanford Law Review; Essays on Critical Legal Studies (Cambridge: Harvard Law Review Association, 1986).Google Scholar

2. See, e.g., Kennedy, Duncan “The Structure of Blackstone’s Commentaries” (1978), 28 Buffalo Law Review, 205–382;Google Scholar Unger, Roberto Knowledge and Politics, (New York: Free Press, 1975).Google Scholar

3. Unger, “The Critical Legal Studies Movement”, (1983), 96 Harvard Law Review, 563–675.Google Scholar

4. I take up this theme below. For a discussion of the “patchwork quilt” thesis, see Altman, Andrew “Legal Realism, Critical Legal Studies, and Dworkin” (1986), 15 Philosophy and Public Affairs, 205–35.Google Scholar For a sampling of CLS work in core fields of law, see the following. In contract, Feinman, May M. “Critical Approaches to Contract Law” (1983), 30 UCLA Law Review, 829–60;Google Scholar Peter, Gabel and Feinman, Jay “Contract Law as Ideology” in Kairys (ed.), The Politics of Law, supra n. 1, pp. 172–184;Google Scholar Gordon, Robert “Unfreezing Legal Reality: Critical Approaches to Law” (1987), 15 Florida State Law Review, 192–220;Google Scholar Horwitz, Morton “The Historical Foundations of Modern Contract Law” (1974), 87 Harvard Law Review, 917–56.CrossRefGoogle Scholar In tort, see Abel, Richard “Torts”, in Kairys ed. The Politics of Law, supra n. 1, 185–200;Google Scholar Horwitz, Morton “The Doctrine of Objective Causation”, ibid., 201–213.Google Scholar In criminal law and procedure, Mark, Kelman “Interpretive Construction and the Substantive Criminal Law” (1981), 33 Stanford Law Review, 591–624;Google Scholar Mark, Tushnett and Jaff, Jennifer, “Critical Legal Studies and Criminal Procedures” (1986), 35 Catholic University Law Review, 361–84.Google Scholar In constitutional theory, Paul, Brest “The Fundamental Rights Controversy: The Essential Contradictions Contradictions of Normative Constitutional Scholarship” (1981), 90 Yale Law Journal, 1062–1109;Leubsdorff, John “Deconstructing the Constitution” (1987),90 Stanford Law Review 181–201;Google Scholar Tushnett, Mark Red, White and Blue: A Critical Analysis of Constitutional Law (Cambridge: Harvard University Press, 1988).Google Scholar

5. Dworkin, Ronald Law–s Empire (Cambridge: Harvard University Press, 1986)Google Scholar, (hereafter cited as LE). This builds on some of Dworkin's other recent work. See the essays collected in A Matter of Principle (Cambridge: Harvard University Press, 1985), Google Scholar (hereafter cited as MP), see also, “Natural Law Revisited” (1982),34 University of Florida Law Review, 165–87, hereafter cited as NL). See Fiss, “Objectivity and Interpretation” in Levinson and Mailloux (eds.), Interpreting Law and Literature (Evanston: Northwestern University Press 1988), 229–249;Google Scholar Fiss “The Death of Law” (1986),Google Scholar 7 Cornel] Law Review, 1-16; Richards, Toleration and the Constitution (publisher-loc>Oxford: Oxford University Press, 1986);Oxford:+Oxford+University+Press,+1986);>Google Scholar Weinrib, “Legal Formalism: On the Immanent Rationality of Law” (1988), 97 Yale Law Journal, 949–1016.Google Scholar See also the books by Milner Ball: The Promise of American Law (Athens: University of Georgia Press, 1981);Google Scholar Lying Down Together: Law, Metaphor and Theology (Madison: University of Wisconsin Press, 1985).Google Scholar

6. For a discussion of the views of the orthodox writers, see Grey, Thomas C. “Langdell ’s Orthodoxy”, (1983), 45 University of Pittsburg Law Review, 1–563 Google Scholar On the apologetic tendencies of Common Law theory and Postema, Gerald Bentham and the Common Law Tradition (Oxford: Clarendon Press, 1986),Google Scholar esp. chaps. 1 and 2. On the apologetic battle against “nihilism”see Couzens Hoy, David “Dworkin’s Constructive Optimism v. Deconstructive Legal Nihilism” (1987), 6 Law and Philosophy 321–56.Google Scholar

7. Two excellent introductions to the “law as interpretation” literature are Levinson, and Mailloux, (eds.) Interpreting Law and Literature, supra n.5, and Interpretation Symposium (1985), 58 Southern California Law Review, 1–725.Google Scholar See alsoGrey, Thomas C. “The Constitution as Scripture” (1984),37 Stanford Law Review, 1–25 Google Scholar

8. Fiss, “ The Death of Law ” supran. 5, 11.

9. Dworkin’s discussion of the “chain-novel” as a way of modeling interpretive adjudication in a hard case. LE 229; MP 158-166

10. Weinrib, “ Legal Formalism ” supran. 5, 1012 and 955.

11. Ball,“ Legal Formalism ” The Promise of American Law, supra n. 5,96.

12. Weinrib maintains that “ the distinctive rationality of law is immanent to the legal material on which it operates ” “ Legal Formalism ” supran. 5, 953.

13. Ibid925.

14. Richards, David A.J. “Human Rights and the Moral Foundations of the Substantive Criminal Law”(1980), 13 Georgia Law Review, 1428–30.Google Scholar

15. Bowers v. Hardwick 478 U.S. 186 (1986). Justice White’s reading of the Court’s “privacy” jurisprudence as concerned only with protecting interests in “family, marriage, or procreation”, neither fits nor best justifies that jurisprudence. See Richards, David A.J. “Constitutional Legitimacy and Constitutional Privacy” (1986), 61 New York University Law Review, 800–62.Google Scholar

16. See, for example Charles Fried, “ Contract as Promise: A Theory of Contractual Obligation (Cambridge: Harvard University Press, 1981);Google Scholar Ernest Weinrib, “Toward a Moral Theory of Negligence Law” (1983),2 Law and Philosophy, 37–62;Google ScholarPubMed Richards, “Human Rights and the Moral Foundations of Substantive Criminal Law” supran.14.For works sympathetic to apologetics, see the earlier but influential series of articles byGoogle Scholar Richard Epstein, “A Theory of Strict Liability” (1973),2 Journal of Legal Studies, 151–204; “ Google Scholar “ Defences and Subsequent Pleas in a System of Strict Liability” (1974), 3 Journal of Legal Studies 165–215;Google Scholar “ Intentional Harms” (1975), 4 Journal of Legal Studies 391–442;Google ScholarPubMed and “ Nuisance Law: Corrective Justice and its Utilitarian Constraints” (1979), 8 Journal of Legal Studies 49–102.Google ScholarPubMed

17. See,e.g., Balkin, J.M. “Taking Ideology Seriously: Ronald Dworkin and CLS Critique”, (1987), 55 UMKC Law Review, 392–433;Google Scholar “ The Crystalline Structure of Legal Thought” (1986), 39 Rutgers Law Review 1–110;Google Scholar Robert Gordon “Critical Legal Histories” (1984),36 Stanford Law Review 58–125;Google ScholarPubMed Willard Hurst, J. and the Common Law Tradition in American Legal Historiography” (1975), 10 Law and Society Review 9–55;Google Scholar Hutchinson, Allan C. “ Indiana Dworkin and Law’s Structure of Blackstone’s Commentaries supran.2; Google Scholar “Toward An Historical Understanding of Legal Consciousness” (1980),3 Research in Law and Society 3–24; Google Scholar Elizabeth Mensch, “The History of Mainstream Legal Thought” in Kairys (ed.)The Politics of Law supran.1;Google Scholar Roberto Unger, Knowledge and Politics, supra n.2;Google Scholar Roberto Unger, The Critical Legal Studies Movement supra n.1.Google Scholar

18. Fiss regards the “ nihilism ” of CLS as so irrational that “nothing can be said in response”. “Objectively and Interpretation”, supra n. 5,248. Weinrib takes the only lesson to be that “once we step outside the most vigorous notion of internal coherence, the slide to nihilism is swift and easy.” An uncompromising apologeticism is the answer. “Legal Formalism”, supra n. 5, 1016.

19. Texas v. Johnson 57 U.S.L.W. 4770 (1989); U.S. v. Eichman 89-1433 (1990); Thompson v. Okalahoma 101 L Ed 2d 702 (1988); California v. Greenwood 100 L Ed 2d 30 (1988).

20. Cf. David Richards’ claim that legal interpretation must “express fidelity to our history, along with a critically defensible political theory ”, it must “define a perspective on constitutional interpretation that is both rooted in history and convention and adequate to the moral mission of the law”, Toleration and the Constitution, supra n. 5, 21 and 28.

21. The term is used by Dworkin (LE 13-15); Fiss, “Objectivity and Interpretation”, supra n. 5, 236-37; and Weinrib, “Legal Formalism”, supra n. 5, 952,962 and 975

22. Fiss, Ibid., 236

23. “Legal formalism is the effort to make sense of the lawyer’s perception of an intelligible order ”, Weinrib, “Legal Formalism”, supra n. 5,951.

24. Weinrib, ibid., 952. In its crudest form, external theory focuses solely on the legal “input” - those social and ideological forces that forge legal consciousness - and the legal “output” - the impact of specifically legal concepts, rules, and decisions on the larger society of which they are a part. See Freidman, Lawrence,The Legal System: A Social Perspective(New York:Russell Sage Foundation,1975),esp. chap. 1. (An excellent example of external theory as Dworkin describes it. See, e.g., Friedman’s explicit rejection of the claim that the truth-conditions for propositions of law must be “internal” to legal reasoning (245-6). Whether Dworkin means that all or nearly all sociological or historical writing conforms to this extreme position he does not say. Plainly, many in these fields would decry such a reading of their discipline and its methods. See, for instance, Louis Mink, “Narrative Form as a Cognitive Instrument”,Google Scholar in Canary, Robert and Kozicki, Henry (eds.) The Writing of History: Literary Form and Historical Understanding(Madison: University of Wisconsin Press,1978),and Hayden White, “The Value of Narrativity in the Representation of Reality””,Google Scholar in Mitchell, W.J.(ed.), On Narrative(Chicago: University of Chicago Press,1980).Google ScholarPubMed

25. Fiss, “Objectivity and Interpretation”,supran.5, 248.

26. Most apologists reject “ originalism ” as an intepretative methodology. See LE 55-59 and 313-27; Fiss, “ Conventionalism ” (1985), 58 Southern California Law Review, 177-97; Richards, Toleration and the Constitution, supra n. 5, ch. 2.supran.5, 248.

27. See LE, ch. 4–6.

28. See LE, ch. 11.

29. Fiss, “Objectivity and Interpretation”.supran. 5, 230, 248–49

30. Mark Tushnet, Red, While and Blue: A Critical Analysis of Constitutional Law, supran.4,49.

31. Ibid

32. This view has been forcefully expressed by Stanley Fish. See “Working on Ihe Chain-Gang: Interpretation in the Law and in Literary Criticism”, in Mitchell, W.J. (ed.) The Politics of Interpretation (Chicago: University of Chicago Press (1983), 271–86;Google Scholar “Wrong Again” (1983) 62 Texas Law Review, 229–316; Google Scholar “Still Wrong After All These Years” (1987),6 Law and Philosophy, 401–18.Google ScholarPubMedSee also “Dennis Martinez and the Use of Theory (1987),96 Yale Law Journal,1973–1800. Google Scholar

33. The last of the characterizations is from Dworkin, “Reply to Critics” in Marshall Cohen (ed.), Ronald Dworkin and Contemporary Jurisprudence, Totowa: Rowman and Allanheld, 1984),277 Google Scholar

34. This argument appears to beg the question. The crucial, operative assumption is that propositions of the form “Slavery is objectively wrong” or “There is a right answer to the question of slavery, namely that it is wrong” can only be understood in one of two senses; as offering evidence for the claim that slavery is wrong by affirming the existence of a realm of moral facts to which those propositions correspond and which force moral beliefs upon us, or as nothing more than rhetorical flourish. But there is no reason to think that this crude dichotomy exhausts the possible interpretations of “objectivity” in morals which the skeptic means to deny. For a more sensitive account, see Thomas Nagel, “The Limits of Objectivity”, in McMurrin (ed.), The Tanner Lectures on Human Values, Vol. 1 (Salt Lake City: University of Utah Press, 1980), 77-139; for a critique of ethical objectivity understood in Dworkin’s sense see J.L. Mackie, Ethics: Inventing Right and Wrong (Harmondsworth: Penguin Books, 1977), ch. 1.

35. Painly, a number of familiar issues are fudged in this formulation. But this statement of the doctrinal principle will suffice for present purposes, as my intent is not to explore the concept of causation, but simply to explicate a tension with the legal doctrine

36. 34 So.2d 513 (La. Ct. App. 1948).

37. Ibid518.

38. 9 So.2d 780 (Miss Sup.Ct. 1942).

39. In Re Polemis, [1923] 3 K.B. 560; Overseas Tankership (U.K.) Ltd. v. Moris Dock and Engineering Co. Lid. (The Wagon Mound) (1961), A.C. 338; Palsgraf v. Long Island Railroad Co. 248 N.Y. 339, 162 N.E. 99 (1928). Directness is also invoked, e.g., in Smith v. Leech Brain and Co. (1962), 2 Q.B. 405; and foreseeability in Petition of Kinsman Transit Co. 338 F.2d 708 (2nd Cir. 1964), cert denied 380 U.S. 944 (1965).

40. See, for example, In Re Polemis 91923) 3 K.B. 560; Gibson v. Avis Rent-A-Car System, Inc. 386 So.2d 520 (Fla. 1980); Restatement (Second) ofTorts,sec. 435, subd.

41. Jules Coleman has recently defended the claim that no single moral principle or consistent set of moral principles can coherently explain or justify the tort system and its doctrine. See“Moral Theories of Torts; Their Scope and Limits” Parts 1 and 2 (1982),Google Scholar 1 Law and Philosophy, 371–90 and (1983), and 2 Law and Philosophy, 536 Google ScholarCritical scholar J.M. Balkin argues that the tension between the direct causation and foreseeability principles has numerous iterations throughout tort: in the question of whether there should be a state-of-the-art defense in products liability cases, or a defense of mistaken self-defense is intentional tort; whether negligence or strict liability is the appropriate general standard of tortious liability; and whether the doctrine of res ipsa loquitor is justified. See Balkin, “The Crystalline Structure of Legal Thought” supra n. 17.

42. Witness Fried’s concession that the doctrine of consideration in the law of contract is “too internally inconsistent” to stand as an impediment to his reconstruction of contracts as promises. Contract As Promise, supra n. 16, 35. See also William Prosser's lament regarding law of defamation “it must be confessed at the beginning that there is a great deal of the law of defamation which makes no sense. It contains anomalies and absurdities for which no legal writer ever has a kind word.... Page Keeton, W. et. al.(eds.), Prosser and Keeton on Torts 5th ed., (St. Paul: West Publishing Co., 1984),771Google Scholar

43. On the gravitational force of precedent, see Dworkin, Ronald Taking Rights Seriously, London: Duckworth, 1977), 110–5(hereafter cited as TRS)Google Scholar

44. Dworkin attempts to contain the impact of legislative supremacy by introducing the idea of legislative integrity. Integrity requires, Dworkin now explains, that we view a Congressional enactment as an act of the community personified. That is, each citizen must view such legislation as a principled attempt by the community both to express and extend in a coherent way its deeper commitments of political morality. Legislative integrity requires consistency in policy, not simply in principle (LE 447-8, n. 8). This seems to represent a major break with Dworkin's earlier view of how legislatures should proceed. See TRS, 88, 111, 112-5, and “A Reply by Ronald Dworkin”, in Cohen (ed.) Ronald Dworkin and Contemporary Jurisprudence, supra n. 33,268-70. At the same time, however, Dworkin realizes that the requirement of legislative integrity cannot be absolute. Faced with the practical constraints of time, lobbying pressure, and so on, the legislature may justifiablyenact statutory schemes inconsistent to one degree or another with the settled law (LE 217-8).

45. See Guido Calabresi's discussion of the especially in reference to attempts to deal with anachronistic statutes that no longer “ fit” within a larger doctrinal context. Calabresi, A Common Law For the Age of Statutes (Cambridge: Harvard University Press 1982).Google Scholar

46. Integrity is limited in another way in constitutional practice by the concept of federalism. In those areas where the states are sovereign, integrity holds only with respect to each state. So there is no violation of integrity where, say, the tortlaw of various states disagree on matters of principle (LE 185-6).

47. Dworkin, in fact, seems to concede the force of this concern near the end of Law’s Empire. Adjudicative integrity, he says, is inclusive, requiring a coherent reconstruction of principles of fairness (including legislative supremacy) and procedural due process (including stare decisis), as well as of substantive justice (LE 404-5). Pure integrity, by contrast, imagines what law would be if reconstructed free of the constraints of compartmentalization, stare decisis, and legislative supremacy. Dworkin admits that even the ideal of inclusive integrity may not be attainable (LE 184; 213): it reduces to “law”s cunning”, which is simply another name for “the ability of good judges to impose whatever order they can...on a historically haphazard process” (LE 409).

48. Even if Dworkin could show that “competing” principles or doctrines are in fact not inconsistent, this would still fail to yield what integrity requires; for while competing principles may be logically consistent (and perhaps probabilistically consistent as well), bare consistency (of either sort) is not sufficient for coherence. The members of a coherent set cannot simply fail to contradict, but must actually support or reinforce each other in some significant way. For an illuminating account of these matters, see Bonjour, Laurence The Structure of Empirical Knowledge Cambridge: Harvard University Press, 1985ch. 5 (esp. sec. 5.3).Google Scholar

49. A discussion of the relationship can be found in Airman, “Legal Realism, Critical Legal Studies, and Dworkin”, supra n. 4.

50. See Holmes, ,“The Path of the Law”(1897),10Harvard Law Review,462ff.Google Scholar

51. Ibid.

52. Consider the following characterization of critical interpretive methodology: "Here’s an account of the technique we in Critical Legal Studies use in analyzing legal texts, a technique I call ‘Trashing’: Take specific arguments very seriously in their own terms; discover that they are actually foolish…and then look for some (external observer’s) order (not the germ of truth) in the internally contradictory, incoherent chaos we've exposed." Mark Kelman, ,“Trashing”(1984),36Standard Law Review,293(emphasis in original).Google Scholar

53. One of the aims of critical legal historians, for instance, has been to demonstrate that traditional legal historiography has been “too internalist”. See Robert Gordon, ,“Critical Legal Histories”supran. 17;Morton Horwitz, ,The Transformation of American Law(Cambridge:Harvard University Press,1977);Google Scholar Rosenberg, Normal L.,Protecting the Best Men: An Interpretive History of the Law of Libel(Chapel Hill:University of North Carolina Press,1986).Google Scholar

54. On the last two points, see LE, ch. 6.

55. See, e.g., Herman Oliphant, ,“A Return to Stare Decisis”(1927),6American Law School Review,215–50;Google ScholarMax Radin,“The Theory of Judicial Decision: Or, How Judges Think”(1925),11American Bar Association Journal,357–400;Google Scholar Llewellyn, Karl“TSome Realism About Realism”44Harvard Law Review,1222–64.Google Scholar

56. See See Louisell, Kaplan,and Waltz (eds.)Cases and Materials on Evidence,3rd ed.(Mineola:Foundation Press,1976),ch. 12.Google Scholar

57. For further examples, see Leubsdorff, ,“Deconstructing the Constitution”supra n. 4.Google Scholar

58. Ball, The Promise of American Law, supra n. 5, 25.

59. See Richmond v. Croson 102 L. Ed 2d 854 (1989).

60. For an account following roughly this line, see Alan David, Freeman,“Legitimizing Racial Discrimination Through Antidiscrimination Law”(1978),62Minnesota Law Review,1049–1119,also an illuminating account of the interplay within antidiscriminatory law of conflicting basic moral aims. See also the controversial reading given the Constitution by Charles Beard. Both the basic structure of the document (the system of federated and divided powers, the major competencies of the federal government – taxation, war, control of interstate commerce – ) as well as many specific clauses (e.g., the Slave Trade clause) may all be explained, Beard alleged, on the single assumption that they served to protect the economic interests of the (almost uniformly) wealthy and propertied framers.Google Scholar An Economic Interpretation of the Constitution(New York:Macmillan,1913).Google Scholar

61. Ball sees the on-going constitutional commitment to equality as nothing less than the continual dramatic reenactment of the covenantal beginning of a semi-divine people. The Promise of American Law, supra n. 5, ch. 7.

62. Some legal realists in fact advocated just such a restriction to the actual pattern of judgments made, as contrasted with justifications given. See Herman Oliphant, “A Return to Stare Decisis”supra n. 55,215:“Not the judges opinions, but which way they decide cases, will be the dominant subject matter of any truly scientific study of law. See also Karl Llewellyn’s discussion of the “theory of rationalization” in “Some Realism About Realism”, supra n. 55.Google Scholar

63. Peter, Winch,The Idea of a Social Science and its Relation to Philosophy,(London:Routledge Paul,1958),ch.2.Google Scholar

64. It is just this presumption and aspiration of “internal” or “participatory” legal theory which distinguishes Dworkin’s contrast of internal and external legal theory from Hart’s familiar distinction between internal and external points of view respecting social rules. (See Hart, H.L.A.,The Concept of Law,(Oxford:Clarendon Press,1961)(hereafter cited as CL) passim, but esp. ch. 5 and 6).Google Scholar

65. Clifford, Geertz,The Interpretation of Cultures: Selected Essays,(New York:Basic Books,1973), 3–30.Google Scholar

66. Richard, Cf,Rorty’s avowed method of“trying to outflank the objections by enlarging the scope of one’s favorite metaphors”Contingency, Irony and Solidarity,(Cambridge:Cambridge University Press,1989), 44.Google Scholar

67. For a discussion of the “hermeneutic circle” in application to social theory, see Charles Taylor, “Interpretation and the Sciences of Man” (1971), 25 Review of Metaphysics, 3–51. For Weinrib’s attempt to meet the “circularity” objection, see “Legal Formalism”, supra n. 5,924–5.

68. Karl Llewellyn, ,The Common Law Tradition: Deciding Appeals,(Boston:Little, Brown,1960),3.Google Scholar

69. See, generally, ibid., 178–235.

70. “My defense of adjudication as interpretation...assumes that the Constitution has some meaning…” Fiss “Objectivity and Interpretation”, supra n. 5,248.

71. Alan, Gewirth,Reason and Morality(Chicago:University of Chicago Press,1978),Mackie, J.L.Ethics: Inventing Right and Wrong, supra n. 34.Google Scholar