Law & Society Blog

Consider Dworkin’s Law’s Empire chain-novel image. What does it achieve? The chain-novel concept sees judges connected and constrained by what has gone before and connecting to and contraining what comes after. Is this just a fanciful version of stare decisis? No. Dworkin is patching a hole in the legitimacy-fabric of democracy in the U.S.

The continental European states with their constitutions and codifications are built on the following model: The people give themselves a constution which establishes and constrains the state and state power. The people give themselves, through the legislature, (conceputally) complete legal regimes to govern their affairs (the codes). The people, through their elected representatives, appoint executives who in turn appoint the judiciary. The judiciary is bound by the (democratically legitimized) codified law, and not by precedent, at least not primarily. This account is a simplified and stark sketch, of course, but it is how it was meant to work and how the European states have historically been organized.

Compare the U.S.: Sure there is the constitution, given by the people. But there is no code of law, no systematic and comprehensive shaping of the legal fabric of society through the democratic process. There is plenty of legislation, but is is not designed to address more than a small topical area, and it is functionally equivalent to judge-made law. The judge-made law was imported into the fabric of U.S. society simply because it existed at the time and it worked. There was no attempt made to democratically legitimize the English common law and its reception in the U.S. Compared to the European states, there is no firm ground of democratic legitimacy on which either the Common Law or the adjudication by the courts rests. The exercise of judicial power is more often justified by reference to the need for neutral arbitration of disputes than by reference to actions of democratically legitimized intermediaries or to democratic will expressed in statutory normativity. (Again, this is almost criminally simplistic and stark.)

One reaction to this legitimacy gap is to throw the concept of legitimacy overboard. That’s American realism. Real conflicts and real people, and no real need for anything but a bit of windowdressing beyond that.

But look at Dworkin: He is trying to patch the hole. Integrity and the chain-novel is taking the functional role of the codification, a democratically legitimate, conceptually complete ordering of human affairs within the state. The chain of chain-novel judges provide a conceptually complete and democratically (constitutionally) legitimate normative fabric. If this works, it doesn’t matter that the judge is not acting on the democratically-expressed and codified will of the people but rather on the whims of a 15th-century judge who was a royal subject. It doesn’t matter because each judge in the American democracy is a link in a chain that reaches back to the constitution and to Integrity. 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. Once I realized this, I found it easier to appreciate the contortions Dworkin untertakes for the sake of his Hercules, integrity, and the judicial chain-novel. YMMV.

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