A suggestion, if I may, to your analysis of the suggested lack of legitimacy of the common law (as compared with Continental law).

The common law is developed not only through the decisions of judges (Herculean or of another type) but also through jury participation. Juries are, perhaps, the great democretizers not only of the judiciary but also of the entire system in which the judiciary operates. Juries are much more representative of actual classes, ethnicities, genders etc. than any other part of the regime (by which I mean political institutions). (Not to mention the fact that the compulsory element of the jury duty draws in those who otherwise do not participate in the political process as evidenced by measly voters turn-outs; paternalistically perhaps engaging larger constituencies.)
Take, for example, the OJ Simpson trial. Assume, for the sake of argument, that OJ was, in fact, guilty. Is the outcome of the trial a failure in terms of justice? Perhaps, in terms of criminal justice. But more broadly defined - it allowed for a group otherwise effectively marginalized in politics to send a loud and clear message regarding race relations. A message muffled in all other branches of the political institutions (with an emphasis on institutions as opposed to the public discourse at large).
Viewed in this light, to use another example, otherwise-egregious jury tort awards may be viewed as a form of redistributive justice exacted by members of classes who cannot affect actual taxation legislation the way those who have access to, say, expensive lobbyers, can and do.

Hence, it is suggested, the analysis of democracy and legitimacy of the common law –and particularly of the judiciary understood in the context of checks-and-balances — in comparison to the (orderly, oh so orderly) Continental system would benefit from inclusion of the function of the jury in the analysis.

As to Dworkin’s contortions, I am sure those will continue to baffle some of us for some time to come…

Nico Artzi.