merely on the basis of arbitrary native characteristics, so asnto reward the most qualified members of the group (whonwill, as a statistical matter, tend to come from its morenadvantaged portions). Hence, the irony of the De Funis andnBakke cases. De Funis, a Sephardic Jew from a relativelynpoor background, was not admitted to the University ofnWashington Law School, while most of the minoritynstudents admitted on the basis of preferential treatmentnLegal CulturenAs the 20th century rounds thenbend, it is impossible to look back atnthe steady march of rights tramplingnon privileges without a sense ofnastonishment. Was it really only inn1920 that Congress ratified women’snsuffrage? Has forced busing fornintegration only been with us forntwo decades? The revolution innrights has not been an affair of thenheart but of legislatures and, especiallynin the U.S., the courts.nOf the recent philosophers ofnlegal right, none is more influenhalnthese days than Ronald Dworkin.nStill near the center of Dworkin’snattention in A Matter of Principlen(Harvard University Press, Cambridge,nMA) is his insistence (modifiednover the years but not abandoned)nthat courts should decidenqueshons not for reasons of policynbut on the basis of principle. Judgesnare not to consider the general welfarenor the probable consequencesnof their decisions; instead, they arento uphold general rights.nLike most fashionable distinctions,nthere is less than meets theneye. If judges are really forced tonchoose between the common goodnand the principle of equality, whichnis preferable? Is equality before thenlaw, for example, a good per se, ornis it good because it leads to fairnjudgments and social harmony?nThe fuzziness we sometimesnencounter in Dworkin derivesnfrom a typically modern refusal tonexamine first principles, in hisncase, rights. Dworkin insists upon ancitizen’s “right not to be convictednif innocent.”nEven an accidental violation ofnthis right does serious damage innthe form of “moral harm.” A delib-nREVISIONSnerate injustice constitutes a “specialninsult to the dignity of the person.”nThese considerations lead Dworkinnto propose “two principles of fairnplay in government”: (1) citizensnare entitled to equal concern andnrespect; and (2) enforcements ofnpolitical decisions must also benequal in impact.nThe trouble with this line ofnreasoning is not so much that itnleads to false conclusions, sincenDworkin often has sensible thingsnto say on subjects like civil disobedience.nBesides, most political theorynis—let us be candid—a process ofnideological justification. (Tell me anphilosopher’s party, and I have anfair chance of guessing his politicalntheory.) No, the problem withnDworkin’s principles is simply this:nrights, as he understands them,nsimply don’t exist, and saying theyndo — over and over — will nevernmake it so.nYou don’t need a philosophicalntheory in order to have a workablenlegal system. If anything, the reversenis true. Dworkin’s view of thencourts as a place for settling questionsnof principle is exactly what wenhave in the U.S. Britain and Francenare far more democratic: they settlenfirst principles by elections—a ridiculousnmethod surely, but preferablento judicial fiat. Brian Barry, inna penetrating review of Dworkin innthe Times Literary Supplementnpoints out that judicial impositionnof rights, as in Roe v. Wade, has theneffect of straining the social fabric.nLegal theory in the 1980’s is anmess, but that is nothing terriblynnew. As Alan Watson observes innhis masterful study. The Evolutionnof Law (Johns Hopkins UniversitynPress, Baltimore), no one can understandnthe history of law if he failsnwere, apparently, from more advantaged backgrounds (or,nat least, were the children of black professionals). On thenother hand, the program at the University of California atnDavis which the Court struck down in the Bakke case wasnunusual for having procedures in place to direct specialnconsideration to those who actually came from economicallyndisadvantaged backgrounds. Theoretically, the programnwhich the Court struck down in Bakke was defensiblennnto consider the conservatism of lawyers.nThey will fold, spindle, ornmutilate an old law before they willnadmit it was foolish to begin with.nWatson’s examples, Roman ContractnLaw, customary law, and thenwelcome given to Roman law in then11th century, illustrate nicely hisncontention that “law … is abovenall and primarily the culture of thenlawyers.” They may be created innresponse to social interests, butnonce a legal system develops, equitynmay often be achieved in spite of,nrather than because of, writtennlaws.nIt does not take a great deal ofnreflection to conclude that Anglo-nAmerican theory is an epiphenomenonnof our legal culture. Startingnwith utterly fantastic notions liken”rights” or Austin’s concept of lawnas command, they are compelled toncome up with increasingly clevernarguments to save appearances. Butnadmit it’s all nonsense to beginnwith? Never. It is rare for a philosophynof law to survive a generation.nAustin and Kelsen — where arentheir disciples now? The great exception,nnatural law theory, onlynproves the rule, because natural lawnwas deduced from the nature ofnthings rather than the nature ofnlaws. Watson points out that despitenthe obvious difficulty of conceptualizingnlegal ideas, “the elite ofnlawmakers . . . become so involvednwith law as law that theynoften talk of it as if it existed for itsnown sake, and they cease to regardnit … as existing for specific societalnpurposes.” No, a philosophy ofnlaw is a contradiction in terms, andnin America that contradiction hasnturned the frail intellect of a JudgenGarrity or a William O. Douglasninto a mortal god. ccnMAY 1986/13n