Law & Society Blog

Drhfk objects to my take on Dworkin:

I fail to understand how Dworkin’s chain novel theory, as interpreted by Bloomfield, could solve the genetic problem of legitimacy…. I don’t think that the chain novel metaphor solves the problem of legitimacy; it does not serve as an independent source of legitimacy for judicial decisions.

The objection is valid, of course. I described what Dworkin tries to do; whether he succeeded is a different matter. It is clear that he did not supply anything of the same conceptual force as big-bang legitimacy (brilliant term). But what else was Dworkin trying to do, if not get closer to a theory of common-law democratic legitimacy? The traditional common law restraints on judicial power are jurisdiction and stare decisis. Dworkin is supplying more in constructing the chain-novel theory. By placing the judge in the stream of the developing chain novel, Dworkin is imbuing the judicial decision with the same historical legitimacy that the U.S. constitution has. It is the same thing, I read Dworkin to say, for the courts to contribute to the chain novel as it is for the legislature to act within the procedural and substantive requirements of the constitution (the substantive requirements being the Bill of Rights in particular). Even though the courts are thus potentially applying pre-constitutional law, they are placed in the particular confines of the chain novel, which connects back to the constitutional and thus the archetypically democratic foundation of the United States. To repeat myself:

It’s not the same thing as “the mouth of the law” of course, but is more than traditional common law or the normative nihilism of the realists can supply.

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