CHAPTER VI
Idealism and Fidelity to Law

1. THE DEATH OF LAW?

In the Philosophy of Right, Hegel writes,

The principle of rightness becomes the law when, in its objective existence, it is posited, i.e., when thinking makes it determinate for consciousness and makes it known as what is right and valid; and in acquiring this determinate character, the right becomes positive law in general.1

He then remarks that the "inner essence" of positive lawmaking (in which he includes judicial lawmaking) is the "knowledge of the content of the law in its determinate universality." By determinate universality Hegel means a unity or system wherein a single principle—the "principle of rightness"—is instantiated in diverse laws and applied to particular cases.

In the preceding chapters I have tried to comprehend the main branches of the common law in their determinate universality. Specifically, I have tried to interpret the common law as a series of instantiations of dialogic community, understood as the mutual recognition of distinct selves as ends. Moreover, I have tried to show that this idea not only unifies the classical system of formal right based on "possessive individualism"; it also unifies this system with the modem communitarian or welfarist legal paradigm in a way that keeps both within their proper bounds, preventing either from devouring the other. The upshot is that the common law is (inherently, though more or less imperfectly in fact) a unity not only of diverse doctrines but also of diverse doctrinal systems.This unity of subunities constitutes the good order and justice of the common law and reveals injustice as the hypertrophic extension of some constituent principle, such as formal liberty, the general happiness, or positive freedom. In exhibiting the common law's inherent unity, I believe I have vindicated the rule of

law against the prevalent view that the common law is inescapably torn by ideological conflict.

The final question we have to consider concerns the status of this interpretation. Does it offer only a particular perspective on the common law, one that can perhaps help us see law from an unfamiliar angle but that cannot lay claim to any superiority over alternative perspectives? Or has it succeeded in revealing the common law's own unity and in thus having told the truth about the common law? Moreover, if our interpretation has disclosed law's own unity, what is the normative status of the unity it has revealed? Have we simply described the positive unity of a particular tradition without justifying this unity by a standard of right valid for all traditions? Worse, have we, in describing the common law's internal unity, deferred uncritically to its normative standards, and have we thereby ascribed a false universality to a particular historical formation? Or have we revealed a unity of the common law that is justified by a critical standpoint different from the law's? And if so, how can justification in light of this external standpoint be squared with a claim to have surrendered ourselves to the internal unity of the common law?

I wish to argue that an interpretation of the common law in light of dialogic community both reveals the immanent unity of law and justifies this unity from a critical standpoint different from the law's. That is to say, such an interpretation is immanent without being uncritically deferential and transcendent without being constructionist or artificial. In short, an interpretation in light of dialogic community reconciles critical idealism with fidelity to law. To see better what is at stake in the search for this harmony, let us first see why the unity of idealism and fidelity to law might be a problem for legal interpretation; and let us consider the consequences of their disunity.

I shall begin by defining my terms. By idealism I mean the view of reality for which an object's true nature is given not by its immediate existence prior to the shaping it undergoes in being apprehended by consciousness but by its existence as mediated or formed in accordance with some self-conscious end or idea. In the idealist view of law, for example, law consists not in the mass of often contradictory decisions reached by lawmaking agencies but in the propositions that flow from the best unifying account of this material.2 So understood, idealism is critical because it distinguishes between the brute "existence" of an object and its "actuality" or full development; or it grasps an intellectual criterion for an object's true nature that may then be deployed to criticize empirical reality, to sort out the mature from the underdeveloped, the stable from the ephemeral, true intuitions from errors, rational traditions from merely positive ones. Our understanding of the common law has been idealist in this sense, for we have grasped a relation of mutual recognition between free and equal

selves as the idea of law; and we have applied this idea to the criticism of certain doctrines (e.g., the parol evidence rule, the Learned Hand test of negligence, negligence-based criminal liability) and to the justification of others.

By fidelity to law I mean the virtue of legal understanding that consists in its conforming to the inner unity of the common law considered as a semiautonomous normative order, distinct from political legislation for the common good, from the order constituted by norms of personal virtue, and from the order governed by an ideal of beatitude. The vice corresponding to this virtue is the artificial construction of law in light of a purpose foreign to it, or the imposition on the common law of an end (e.g., wealth maximization or human excellence) derived from normative systems external to it. Of course, the artificial construction of law is a defect of interpretation only if fidelity to law is an attainable ideal, which remains to be shown.

At first sight, idealism and fidelity to law are not in tension. If law's true nature lies in its conformity with an idea—a "principle of rightness"—then an interpretation of a legal tradition in light of this idea will be faithful to the true nature of law. More generally, if the nature of a practice is given by its ideal development, then cognition in light of the ideal yields a true understanding and valuation of the practice. Yet the unity of idealism and fidelity to law is very problematic indeed; and this problem has disquieting consequences for our project, for the rule of law hinges (as we shall now see) on the possibility of such a unity.

The problem may be introduced by asking why an idealist might plausibly be optimistic about his capacity for fidelity to a practice he is in the business of altering. After all, the idealist does not seek to conform thought to a human practice as the latter is immediately given to him in the way that a natural scientist seeks to conform thought to nature.3 Rather, he understands a practice only as shaped by a purpose that he surmises; and he is not averse to expelling some phenomena from the practice rightly understood on the ground that they do not fit within the unity he has constructed. A physicist whose theory of the atom failed to account for a repeatedly observed phenomenon would never dream of dismissing that phenomenon as a mistake or as "bad nature"; and yet (mutatis mutandis) this is just the sort of judgment an idealist interpreter of the common law might make regarding a legal rule marooned by his theory. But how can theory change a practice and be faithful to it at the same time?

For the optimistic idealist (we shall soon distinguish a skeptical one), a purposive interpretation of a human practice (such as law) can be faithful to its object because it does not impose meaning on something that is alien and indifferent to purposive order; rather, it unifies a practice under a conception of the latter's own end or point. It can do so, the idealist

contends, because human practices are intentional structures. Even if the participants regard them as existing independently of human agency (e.g., as immemorial custom or as divinely prescribed laws), they are nonetheless expressions of an idea or realizations of a human project. As such, they do not await philosophic reflection to tell them what they mean. Rather, they are themselves processes of self-interpretation—processes wherein those engaged in a practice try to intuit its point, to purify it of inessential elements, and to develop the practice further. For the idealist, accordingly, reflective interpretation can be true to a practice because it only grasps self-consciously the point of a practice that the participants already understand more dimly; and it thereby achieves a theoretical unification that is already partly accomplished prior to its setting itself to work. Indeed, it is precisely because human practices present themselves to reflective thought as already partially formed through interpretive work that their "actuality" or consummation lies in their explicit conformity with a self-conscious idea.

Law is a good example. When reflective thought confronts a body of law, it does not encounter a mass of disconnected rules and decisions. Rather, it finds something already organized under general categories such as property, contract, tort, and crime; and within these categories, it finds subunities based on such general ideas as possession, consideration, the neighbor principle, negligence, mens rea, and the like. These ideas embody intuitions concerning the scope of valid rights and of legitimate coercion—intuitions that reflection need only clarify and confirm to theoretical insight. In law, moreover, reflection encounters an enterprise that on its own plane aspires to organic unity and coherence—witness Hale's metaphor of "the Argonauts ship" that remains identical throughout successive changes,4 Lord Mansfield's description of the common law as law "that works itself pure,"5 and such maxims as "like cases must be treated alike" and "where the reason of the law stops, there also stops the law." Because law is already an interpretive practice—already a thoughtful, unifying, self-critical activity—reflection can (says the optimistic idealist) yield a true understanding of law if it provides an integrated account of law's own ideas. Such an integration no doubt alters the material originally presented to thought as a collocation of rules and principles; but this altering is no refraction or distortion, for it is just the fruition of law's own work.6

The interpretation of the common law offered in previous chapters proceeded within this general epistemological framework without, however, scrutinizing its capacity to support a true understanding of law. Thus one could describe our project in terms of this framework as an attempt to bring to explicit consciousness the idea of dialogic community that has been intuitively present to common-law jurists, who have themselves been imaginatively engaged in interpreting and specifying their tradition. And

we hitherto thought it a good confirmation of our interpretive thesis that it seemed to account for and integrate a significantly large body of well-settled legal doctrine.

We were, however, naive to think that an account of fidelity could rest there. That self-conscious interpretation seems to be in touch not with "facts" but only with prephilosophic interpretations of facts poses a problem for any idealism that wishes to be faithful to law. This is so because the law against which an interpretive idea is to be judged faithful or unfaithful is now itself an interpretation that, according to idealism, inchoately possesses the very idea to be tested. If the jurists' intuitions adduced to test an interpretive thesis did not already anticipate the thesis, then idealism could not defer to them for confirmation and remain idealism; for it would then treat untested opinion rather than reflection as the standard of true law: reason would have surrendered to prejudice or to the brute existence of a legal doctrine. If, however, idealism defers only to intuitions that foreshadow its idea, then it never hears aught but its own voice; it never gets beyond itself to an independent object and so never receives the confirmation it seeks. Accordingly, idealism seems to be faced with the following dilemma: either it exposes its interpretive thesis to falsification by any legal phenomenon, in which case it ceases to be idealism; or it submits only to those phenomena that satisfy its idea (and casts out the others as errors), in which case idealism does not submit to the object at all but rather manipulates it from outside. It would seem, then, that idealism cannot be faithful to law.7

The problem, however, goes deeper than this. To say that idealism cannot be faithful to law might suggest that there is something called "law" to which idealist interpretation can be faithful or unfaithful. However, one may doubt whether this is so and whether the idealist can thus even make sense of the idea of fidelity to law. An interpretation is meaningfully faithful to law only if the thematic unity it claims to see in the law is a unity of law or conforms to the structure of law as it exists prior to interpretation. Yet for idealism such a correspondence between theory and an independent object is inconceivable. This is so because the idealist is committed to the view that theory is prior to one's experience of an object or practice; that the selection of phenomena for interpretation already presupposes a theory of what gives unity and meaning to a practice; and that there is thus no sustainable distinction between one's theory of a practice and the practice presented for theorizing.8 I shall call this feature of idealist understanding (i.e., the identity of theory and object) its self-enclosedness or self-referentiality. That idealism exhibits this feature need not mean that interpretation is without disciplining constraints, since there usually exist common opinions about the boundaries and core elements of a practice to which the interpreter must conform if he wishes to persuade his

audience, or within which (according to some) he is inevitably situated. However, this caveat only reinforces the point that the only meaningful sense of fidelity for the idealist is fidelity to the common opinion and not to some independently existing object. On the idealist view, indeed, there is never available an embedded structure or meaning that announces itself without alteration by the interpreting subject and to which a theory might correspond; rather, the only structure available to the interpreter is the one that he, as situated within an interpretive tradition, introduces. For the consistent idealist, therefore, the interpreter who claims to be seeking law's own unity must appear a rather comic figure; for he is like the bungling sleuth who cannot help treading on the footprints he is trying to match to a shoe.

That the law is not available to a theorist except through an interpretation that changes it has the following consequences. First, there is no accessible preinterpretive unity against which an interpretation can be tested for its fidelity to the object; hence the ideas of fidelity and infidelity to law are incoherent. Second, all unity is manufactured by the interpreter and imposed on previous layers of inaccessible (and equally artificial) meaning. No doubt the artificiality of unity would warrant the conclusion that all interpretation must be unfaithful to its object if the preexisting object had any solid reality. For the idealist, however, it does not. Because objects present themselves only as shaped and formed through interpretive construction, their only reality (according to the idealist) lies in their mediated character. But then the unavailable object lacks the ontological standing that would render meaningful a judgment of fidelity or infidelity. Since the preexisting object is a will-o'-the-wisp—an untrue mode of the object's existence—it is of no interest to the idealist interpreter; and there is no point in calling an interpretation unfaithful if fidelity is not a desideratum of understanding. This conclusion casts a new light on our earlier statement that idealism cannot be faithful to law. This is so not because idealism falls short of capturing an existing law-in-itself but because there is no law-in-itself to capture. Or rather, the law itself is the law mediated by interpretation, outside of which there is nothing of significance.9

With this conclusion we have reached a thoroughgoing interpretive relativism. Since there is no independent object by which to confirm or disconfirm an interpretation, it follows that interpretation can be neither true nor untrue; it can only provide a perspective that is on a par (as far as truth is concerned) with any other point of view, and there is no limit to the number of possible perspectives. Lacking a criterion of fidelity, we cannot evaluate interpretations as faithful or unfaithful but only as more or less pleasing to our "considered" aesthetic and moral sentiments; and because these sentiments are themselves rooted in a particular interpretive outlook, there is ultimately no standard by which to judge an interpreta-

tion other than its service to the interests that drive a perspective. The implications for the rule of law are obvious: if law is, as the idealist holds, whatever accords with the idea that provides the best interpretation of a legal tradition, then law dissolves into the interest of those whose moral sentiments currently dominate the legal "community"; and the ideal of fidelity to law is the myth by which this hegemony is sustained. It would seem that the realization of the idealist conception of law is the collapse of law into masked tyranny.10

If idealism consumes the independent object and so makes fidelity to law a nonsensical idea, then an ideal of fidelity must (it would seem) be grounded in a rejection of idealism. One rejects idealism if one holds that the law is given independently of interpretation in light of a purposive idea; that it consists in the meaning of basic concepts (e.g., duty, right, possession) employed in legal discourse, in the well-settled meaning of words written in legal texts, in the intentions (considered as psychological facts) of their authors, and in certain social facts (such as habitual obedience) designating these authors and texts as authoritative sources of law. In short, an ideal of fidelity to law seems possible only within the framework of legal positivism.

Yet the rule of law turns out to be no less an illusion on the ground of positivism than it did on the ground of idealism. For if law is identified by nonnormative facts, then there is a famous analytical disjunction between what the law is and what it ought to be.11 This means that for anyone whose fidelity to law is built on positivism, moral criticism of the law must renounce fidelity. Such criticism, in other words, cannot claim to be evaluating law in light of its own aspirations but must confess to be judging law against a moral standard external to it. This dichotomy between fidelity and criticism gives rise to conflicting obligations for a judge. Where the law identified by positivist criteria is immoral by the external standard, the judge must choose between his institutional duty of fidelity to law and his moral duty to change it. This is an insoluble dilemma just because each duty captures one essential aspect of a genuinely ethical attitude and yet they are opposed. By an ethical attitude I mean one that distinguishes not only between the "is" and the "ought" but also between the "ought" considered as a public standard with a stable and ascertainable content and the "ought" as a general idea having nothing but private opinion to give it determinate shape.12 Ethical action seems to require conformity with an "ought" of the former kind, for if the "ought" is specified by private opinion, then its actualization produces a condition indistinguishable from the battle of self-interested forces characteristic of the "is." The ethical attitude shuns the tyranny of moral preference no less than submission to the given.

However, the ethical attitude is impossible for the positivist judge, as a

consideration of his dilemma will show. On the one hand, the judge may say that he must apply the law as given rather than change it in accordance with his personal moral views. But since the law as given is identified by criteria that abstract from value and purpose, the duty of fidelity becomes incomprehensible; there can, after all, be no obligation to obey the law just because it is the law if law is identified by factual criteria.13 On the other hand, the judge may abjure an apparently nonsensical fidelity and change the law to suit morality. But then he judges not according to law but according to a morality that, just because it is opposed to law as objective and publicly ascertainable fact, is a subjective or private morality that he now tyrannically imposes on others. Thus the choice for a positivist judge faced with an unjust law is between an immoral legality and an arbitrary moralism. And since each side of this antithesis has one element (objectivity or normativity) essential to ethical action, the choice is itself undetermined. A judge will be conservative or reformist according to his personal inclinations—according to whether he prefers an arrogant moral conscientiousness or a servile adherence to law. There is no unified obligation to constrain him.14

Accordingly, whether we initially stand on the ground of idealism or positivism, a tension emerges between critical idealism and fidelity to law; and this tension proves fatal to any normatively significant idea of the rule of law. On the ground of idealism, fidelity to law becomes an incoherent notion, and law dissolves into the tyranny of the dominant interpretive perspective. On the ground of positivism, fidelity and criticism are severed, and this divorce corrupts both poles. Fidelity to law means an abdication of reason to brute facts: law rules but without normative force. Moral idealism means a tyranny of moral preference: conscience rules but without law.15 Though perennial foes, therefore, idealism and positivism converge in a common fate, one that Owen Fiss has aptly characterized as the "death of law."16 They meet here because each lacks what the other posits as fundamental. Idealism lacks the "fact itself" against which interpretations could be tested as faithful or adventitious; positivism lacks the idea of immanent purpose that would harmonize its fidelity to law with moral criticism. The thought arises as to whether it may be possible to unify these old antagonists in a single conception of law.

2. DWORKIN'S ATTEMPTED SYNTHESIS

Let us consider a recent attempt by Ronald Dworkin to develop a theory of law that reconciles critical idealism with fidelity to law. That theory consists of two main parts. One part defends the interpretive approach to law generally against both legal positivism and moral instrumentalism; the other part offers a particular interpretive theory of law in light of an idea

Dworkin calls "integrity." By integrity Dworkin means the coherent elaboration of the conceptions of justice and fairness that provide the best interpretive account of a legal tradition, whatever those conceptions might be.17 I shall concern myself here only with the first part of Dworkin's theory. The entire preceding account of the common law of property, contract, torts, and crime may be taken as an alternative to Dworkin's reading of law in terms of integrity, albeit as one that also aims to exhibit integrity considered as a feature of any theoretical explanation worthy of the name. That account is, I believe, a better alternative, because the idea of integrity is a purely formal one that accounts for no specific legal doctrine or for any substantive goal or value; indeed, it is hospitable to any. Dworkin's defense of the interpretive approach is more interesting to us, for here he tries to reconcile an idealist theory of law with the thesis that disputes about the best interpretation of a legal practice are amenable to rational solution. I will try to show that Dworkin's attempted synthesis fails but that the failure reveals the ground of the possibility of a genuine reconciliation. That ground is dialogic community, which turns out to be neither idealism nor positivism but the synthetic unity of both.

In Law's Empire, Dworkin poses a time-honored question in a novel way. In asking "What is law?" Dworkin joins an ancient debate with such thinkers as Aquinas, Austin, kelsen, Holmes, Hart, and Raz. While the question is familiar, however, its meaning has changed radically in Dworkin's manner of posing it. Traditionally, the questioner asked for a definition of law in terms of genus and specific difference. He wanted a stable criterion for distinguishing law from what is not law—a criterion by which acts claiming the force of law could be tested, or that would identify sources to which judges and lawyers could appeal to justify their decisions or claims. The questioner might find this criterion in social facts that identified a supreme law-giving authority or a rule by which such an authority might be recognized; or he might find it in the moral dictates of human nature. In all cases, however, he sought an essence, a concept, something abstracted from the concrete instances of law and considered self-sufficient as a standard in this abstraction. Because the ground of law was preconceived in this way, the inquiry as to its nature traditionally organized a special discipline alongside the law of property, contracts, torts, crime, and the Constitution—a discipline known as jurisprudence.

Without clearly indicating why this line of inquiry is fruitless, Dworkin abandons it.18 The question "What is law?" is still central for him, but he no longer invites a reply in the form of a theory about law's abstract essence. Rather, he invites a theory of the meaning immanent in a concrete practice, that is, a theory of the law of property, contracts, torts, crime, and the Constitution. Law, according to Dworkin, consists in the propositions that flow "from the principles of justice, fairness, and procedural

due process that provide the best constructive interpretation of the community's legal practice" (LE, 225). This hermeneutic conception of law synthesizes two directions of legal thought that Dworkin believes are incapable of capturing what judges do in cases where neither statute nor precedent determines a solution. One, which he calls the plain-fact view, identifies law with the past decisions of bodies that convention specifies as law-giving and regards these decisions as law irrespective of their moral merit; its problem is that it cannot account for the attention judges and lawyers continue to pay to past decisions even when they fail to specify a result (LE, 130-131). The other orientation, which Dworkin calls pragmatism, views law as a means to an end justified by a moral reasoning unfettered by any independent (i.e., nonpragmatic) concern for consistency with past decisions; its problem is that it cannot account for the way in which past decisions constrain goal seeking in judicial argument, and so it must discount the latter as dissimulating rhetoric (LE, 154-156). In contrast to the plain-fact theorist, Dworkin sees law as mediated by moral theory; in contrast to pragmatism, he views the relevant moral theory as one embedded in past decisions.

At first sight, Dworkin's "interpretive turn" seems to abandon the quest for a universal idea of law that the essentialist inquiry sought. It seems to be a turn toward historicism and cultural relativity—a reorientation with disturbing implications when conjoined with Dworkin's antipositivist stance. In place of the positivist's amoral conception of law, Dworkin offers a theory of law that sees it as expressing an underlying public morality. Yet this theory is apparently hospitable to whatever values inform a particular tradition, so that (for example) Nazi laws may seem on this view to be not only laws but laws with moral force.19 Further, the interpretive turn seems to abandon the certainty of the metaphysical ground in favor of something far less secure. If there is an essence of law, then disagreements among lawyers about what the law is in a particular case can in principle be resolved by reference to its essence. There is a common standard to which they can appeal and that renders their disagreement meaningful. If, however, there is no such abstract essence—if disagreement is over whether this or that theory of purpose best explains and unifies past decisions—then disputes about what law is seem inherently insoluble. They begin to look less like lawyers' disputes and more like the debates literary critics have when they argue about the most illuminating view of a novel. Since there is apparently no right answer, what passes for a scholastic argument is really a political conflict among incommensurable perspectives.

Dworkin assures us, however, that the interpretive turn entails neither of these outcomes. It does not entail the loss of a standard by which to evaluate opinions, because "the competing interpretations are directed to-

ward the same objects or events of interpretation" (LE, 46). Further on he says that "[i]t does not follow . . . that an interpreter can make of a practice or work of art anything he would have wanted it to be . . . [f]or the history or shape of a practice or object constrains the available interpretations of it" (LE, 52). Hence a criterion of interpretive fidelity will be the degree to which an interpretation "fits" the object. It need not fit every aspect thereof (for interpretation has a reformist potential), "but it must fit enough for the interpreter to be able to see himself as interpreting that practice, not inventing a new one" (LE, 66). Accordingly, disagreements among interpreters are meaningful because they are disagreements about the best way of interpreting the same object. The object is the touchstone for the validity of theory.

However, the deferral of theory to the object raises the first concern we mentioned: that the interpretive turn renders theory incapable of evaluating a practice except by standards internal to it. The rejection of a transcendent essence of law seems to imply, in other words, an uncritical accommodation to the given norms of a tradition. Again, however, Dworkin assures us that this is not the case. The criterion of fit is only one of the standards by which to assess the merits of an interpretation. Another is the extent to which interpretation makes the object "the best possible example of the form or genre to which it is taken to belong" (LE, 52). Or again, "all interpretation strives to make an object the best it can be, as an instance of some assumed enterprise" (LE, 53). Thus the best interpretation, the right answer to the question "What is law?" is the one that makes the object the best it can be. There are two constraints here on the caprice of the interpreter. First, the object's empirical character sets limits on the value that can be ascribed to it; a tyranny (if I may offer my own example) cannot be dressed up as an ideal political order, but it can be interpreted so as to approximate this order to the degree that its tyrannical character allows—say, by reading out as nonintegral with the regime official acts lacking the elementary formal attributes (e.g., generality, prospectivity) of law. Thus interpretation renders a practice the best possible example of what it is. But second, the object's ideal nature sets limits on the kind of value ascribable to it, or it sets limits on the meaning of "best." The best is the object's own best, given that it is the kind of thing that it is. Thus (again my example) the ideal of the polity is different, presumably, from that of the family, so that the interpretation of a political despotism must be guided by the former ideal rather than by the latter. Accordingly, if the object as found is the touchstone of theory, this involves no mere accommodation to the given, because in turn the truth of the object is its ideal nature, in light of which the interpreter construes the object as a more or less adequate approximation. Moreover, this construal is interpretive rather than

arbitrarily constructionist, because it is constrained by the history and shape of the object. Thus interpretation, says Dworkin, "is a matter of interaction between purpose and object" (LE, 52).

To read Law's Empire is to observe the process by which this initially assumed harmony of idealism and fidelity breaks down, leaving Dworkin's position no different from that of the legal nihilists he seeks to refute. The first hint of trouble occurs when Dworkin begins to describe the stages of the interpretive process. The "preinterpretive stage" is that at which the object to be interpreted, say, the law of property, is identified or defined. This is the object, recall, whose historical shape must constrain interpretation and be capable of validating it as an interpretation rather than an invention. To perform this function, however, the object must be capable of demarcation in a value-free (i.e., noninterpretive) manner, for otherwise the definition of the object will itself be an interpretation in need of validation ad infinitum. But value-free definition is, Dworkin assures us, impossible. The identification of property law will itself be implicitly theory-laden (hence subject to controversy), for "social rules do not carry identifying labels" (LE, 66). Presumably, the meaning of this metaphor is that the categories under which rules are subsumed are not their own but are imposed on rules pursuant to some human interest. If so, then the object's demarcation already involves its alteration and hence the creation of a difference between the object as it exists in itself and the object as it exists for interpretation. From now on I shall call the former object—the one that interpretation leaves outside—the differentiated object or simply the "other." The differentiated object—the object that is other than the object mediated by interpretation—has now become the inaccessible object "out there." At various points in his argument, Dworkin acknowledges this object as something (a "noumenal metaphysical fact") the interpreting subject is compelled to think (LE, 81). But because he is an idealist, he regards this object as a thing not worth speaking about.20 It is insignificant. To the extent that Dworkin refers to it at all, he does so with galactic imagery ("what Law whispered to the planets," "transcendental tablets in the sky," or "atmospheric moral quaverings") conveying disdain (LE, 4, 80). Accordingly, the object by which interpretation is to be constrained turns out to be undifferentiated from it; it is itself the product of interpretation. Properly speaking, therefore, there is no preinterpretive phase, and Dworkin places the phrase within inverted commas. This means that it is, after all, not the object that is to constrain interpretation but a "consensus" within the interpretive community as to what the object is—a consensus that, Dworkin must admit, may or may not exist (LE, 66-68).

Furthermore, the constraint posed by this consensus-defined object translates into a requirement of fit between the interpretation and the practice. The assessment of a good fit, however, requires the interpreter

to have a "preinterpretive" sense of the paradigmatic or essential features of the practice, those features that "any plausible interpretation must fit" (LE, 72). Because, however, the practice does not autonomously announce its essential features, these too will be a matter of intuition and conviction that are once again interpretive. Thus not only the definition of the object but also the idea of a good fit is implicitly theory-mediated; and for Dworkin theory-mediated being now has the significance of relative being, of being-for-interpretation, since he cannot help thinking about the "fact" that mediation leaves outside, however much he would like to deny its importance. Moreover, as the object dissolves into interpretation, a contingent consensus is invariably introduced as a substitute constraint (LE, 67).

If the first criterion of interpretive truth (the historical shape of the object) evaporates in the preinterpretive phase, the second (does the theory make the object the best it can be?) dissolves at the interpretive stage. This is the stage at which the practice previously defined is integrated under a fully self-conscious theory of purpose. This activity, we will recall, was supposed to exhibit the object as the closest possible approximation to its own ideal nature. Since, however, the differentiated object (i.e., the "noumenal metaphysical fact") is assumed to be foreign and indifferent to purpose, any value-laden interpretation is necessarily the imposition on the object of the interpreter's own opinion as to what reveals it in its best light (LE, 67, 87). At this level, not even the consensus forged by professional socialization can be expected fully to arbitrate controversy; nor indeed (says Dworkin) would conformity be desirable here, for if there are no natural constraints on value judgments, conventional ones are tyrannical (LE, 88). Rather, the only constraint on the interpreter's fancy is the requirement of a good fit between the valued purpose and the paradigmatic features of the practice. For this constraint to operate, however, both the identification of paradigmatic features and one's idea of a good fit must be conceptually independent of the hypothesis as to the point of the practice (LE, 67-68). They cannot explicitly presuppose or adjust to the hypothesis, for then they could not constrain. Yet since the selection of paradigmatic features, the assessment of fit, and the formulation of purpose are all interpretive—since they all fall within the same interpreting mind —no strong distinction between these operations is possible here (unless we wish to take schizophrenia as the model of the interpretive attitude). Hence Dworkin must fall back on a "psychological" constraint—a voice of intellectual conscience—urging the interpreter to keep separate his judgments about fit and his judgments about what purpose lends most value to the practice (LE, 234-235).

This constraint is, however, problematic in two senses. First, because the selection of paradigmatic features is interpretive, it presupposes at some intuitive level a theory of the purpose that animates the practice. This

theory cannot be different from the one consciously adopted at the reflective stage of interpretation, for we are dealing here with one interpreting mind. Consequently, there is no clear or ontologically grounded distinction between the stages of interpretation to which scruple can conform, or at least none that Dworkin has revealed; hence any moral compunction the interpreter may feel about manipulating the object to suit his theory, while "phenomenologically genuine," appears within this framework as incoherent and so as merely sentimental (LE, 235). Accordingly, while reminding us of our psychological inhibitions against rigging interpretive outcomes, Dworkin actually gives the strong-minded a reason for shedding them.

Second, the psychological constraint is fragile on its own terms, both for a reason that Dworkin acknowledges and for one he does not. He admits that the standard of fit one adopts, as much as one's theory of purpose, reflects a judgment as to what lends value to a practice; and he admits that tradeoffs will occur between one's aesthetic convictions about how much integration is required and one's substantive convictions about which ends most ennoble a practice. However, if I am permitted to relax my standard of fit for the sake of the net gain in subjective value to be won by an ill-fitting ideal, then there is no meaningful sense in which my choice of purpose is constrained. My freedom is not limited in any important respect simply because my taste for a substantive ideal is balanced with my taste for an aesthetic one, for it is in the end my tastes that determine the law. Furthermore, the psychological constraint exerts at best a temporary hold, because another imperative of the interpretive attitude overrules it. The order to insulate the intuitive identification of paradigms from the thesis about substantive point is countermanded by the order to revise or at least to test intuitions in light of the thesis, for otherwise unexamined intuitions rather than reflection would be the criterion of law. Thus the supposedly core elements of a practice that were to constrain interpretation may in the end be revealed by interpretation as ephemera. What is phenomenologically genuine in the resultant oscillation between contradictory attitudes is not interpretive constraint but the simulation thereof.

Accordingly, because Dworkin is sure that the object of interpretation evinces no embedded meaning or purpose—that it does not autonomously announce its structure to the interpreting mind—interpretation becomes an artificial projection rather than a witness to an immanent order. As a consequence, the distinction that Dworkin wishes to make between interpretation and invention collapses: there are only inventions. In the face of this result, Dworkin can maintain a belief in the possibility of fidelity (and hence in the possibility of a rational solution to interpretive disputes) only by concealing the collapse. Partly this dissembling consists

in substituting a contingent and fragile consensus for the lost object as a constraint on interpretation. More basically, however, it takes the form of a virulent attack against the very relativism Dworkin espouses.

The name he gives to this relativism is "external skepticism" (LE, 78).21 The external skeptic opposes Dworkin's thesis about meaningful disagreement by claiming that value-oriented interpretation is necessarily perspectival because lacking an independent object capable of validating it. As the inaccessible residue of interpretive mediation, the object is unavailable to arbitrate disputes, which are therefore at bottom political conflicts between different worldviews. The skeptic may hold and attempt to defend interpretive hypotheses as passionately as the interpretive realist; he will not, however, defend them as true understandings of the object but rather as projections that are pleasing to the aesthetic and moral sentiments of those he seeks to persuade. Since these sentiments are, however, equally ungrounded in an independent reality, they are as naturally manifold as the interpretive claims that appeal to them. Hence an interpretation may only be popular or unpopular; it can never be right or even better than any other.

Dworkin's response to the skeptic's objection is to accept his epistemological assumptions but to deny their force against the thesis that interpretive disputes are soluble. They have no force against this thesis, argues Dworkin, because he does not claim for the hermeneutic concept of law the "bizarre" kind of objectivity that the skeptic denies (LE, 81). The kind of objectivity he claims is rather the subjective conviction of objectivity that accompanies moral statements as distinct from reports about taste. The difference, says Dworkin, between a statement like "slavery is wrong" and one like "rum raisin ice cream is good" is that with the former the speaker intends a proposition he believes to be impersonally valid rather than valid only for individuals with certain kinds of needs or interests. The further claim of objectivity for the moral statement, he argues, adds nothing except emphasis to this belief. It is only objectivity in this philosophically redundant sense, Dworkin now tells us, that he is claiming for the best interpretive theory of law. To this sense of objectivity as emphatic restatement of moral belief he contrasts the objectivity that consists in the matching of an interpretation to "a noumenal metaphysical fact" or in its confirmation by "atmospheric moral quaverings." This metaphysical sense of objectivity Dworkin both ridicules and renounces. In doing so, he thinks he has declawed the external skeptic, whose criticism assumed the relevance of objectivity in the metaphysical sense.

The derisive rhetoric Dworkin uses to characterize the notion of metaphysical objectivity serves a purpose. By dismissing this kind of objectivity as a chimerical and irrelevant standard, Dworkin reinforces the pretense that the conviction of interpretive fidelity can pass for the objectivity needed

to ground his thesis or to make it interestingly different from the nihilist one, even though everyone might defend conflicting ideas of fit and value with equal moral fervor. That there is a right interpretation of a practice is now reduced to the thesis that interpreters sincerely believe their interpretations are right rather than expressions of their particular interests. Moreover, we have only to inquire whether the belief is true or false to see that even this diluted thesis is an unstable resting point. To be sure, this question would make no sense to Dworkin if it assumed a "noumenal metaphysical fact" against which the belief in rightness could be tested. However, we can pose the question in a way meaningful for Dworkin if we ask whether the belief is true to, or coherent with, the rejection of metaphysical objectivity as a relevant standard for criticizing interpretations. If, as Dworkin believes, no objectivity in the metaphysical sense is available, then the distinction between convictions of impersonal rightness and subjective preferences is ultimately untenable; the former are but self-deceptive versions of the latter, albeit stronger and more widely shared. In the end, therefore, Dworkin is distinguished from the external skeptic only by his failure to follow through intransigently his rejection of metaphysical objectivity.

The pretense of opposition to external skepticism serves not only to conceal Dworkin's nihilism but also to repress the claims of the other that the skeptic in his own way properly asserts. For Dworkin, the skeptic's objection is "silly," "wasteful," "confused," and "to no point" (LE, 85-86). It is a second-level argument about the metaphysical status of interpretive claims rather than an argument within the enterprise of interpretation itself. Dworkin would like to convert the external skeptic into an internal one, that is, into one whose denial of the truth of some moral claim (e.g., that slavery is wrong) is not an argument about the epistemological status of such claims but an interpretive hypothesis about the actual practice of morality (LE, 83-86). Dworkin welcomes all skeptical challenges on this hermeneutic terrain but resents the use of metaphysical arguments of infidelity as easy substitutes for arduous, interpretive ones. This urge to reduce or to interiorize the skeptic is necessitated by the one-sidedness of Dworkin's hermeneutic standpoint. Since the differentiated object is taken to lie outside interpretation, any demands it makes to be respected must also be external (metaphysical) ones that, while entertainable in "a calm philosophical moment," are irrelevant to the actual business of interpretation. These demands can therefore (Dworkin thinks) be ignored by interpretive theorists: only internal skeptics need be listened to.

But are the claims of the other irrelevant? Dworkin himself makes these claims powerful, for his thesis states that interpretations may be criticized as right or wrong, better or worse, that disagreement about the best interpretation of a text or practice is meaningful. In other words, the ideal of fidelity to the object is already implicated in Dworkin's heremeneutic stand-

point: the latter claims to reveal the truth about the object, to have the right answer about its meaning. Thus Dworkin's right answer thesis makes relevant the very differentiated object that he must at the same time discredit to preserve the thesis against the skeptic's accusations of infidelity. Yet the disparagement of that which is immanently necessary exacts a price. Since the question as to whether fight answers are possible is a "metaphysical" question raised outside interpretation, interpretation itself must assume the existence of a right answer unquestioningly. Hence the only arguments Dworkin accepts as relevant to his thesis are those that cannot challenge the thesis because they take its truth for granted.22 However, this arbitrary silencing of opponents renders the thesis itself arbitrary and a mask for interest-based interpretation.

We can summarize our critique of Dworkin in the following way. In grounding law in the best interpretation of legal practice, Dworkin empowers against himself the very independent object that the idealist standpoint fails to compass. Because this standpoint holds that law is truly apprehended only through interpretation, it already implies an ideal of fidelity to the object or an intelligible distinction between interpretation and invention. Yet in actualizing itself as the ground of law, the idealist standpoint loses the very differentiated object needed to support that distinction. All interpretations are now artificial projections on an alien object. To sustain the distinction (between interpretation and invention) in the face of this loss, the independent object must be devalued, its demands ridiculed, its accusatory voice silenced. However, once the independent object—the criterion of fidelity—is declared to be of no significance for interpretation, there is nothing to distinguish the fight answer thesis from the thesis that there are no fight or wrong answers, only equally unprivileged perspectives. The gulf that originally separated Dworkin from the interpretive skeptic has narrowed to the vanishing point.

3. BEYOND SKEPTICISM IN INTERPRETATION

The collapse of the idealist standpoint as a foundation of interpretive truth yields a vantage point from which to understand and criticize contemporary skepticism about legal interpretation. That skepticism has now all but conquered the field. The starting point of contemporary theories of legal interpretation—a starting point most consider too well accepted to require a defense—is that truth or fidelity to the object is off the agenda. The debate is now over whether, once it is conceded that there is no independent object by which to test interpretation, the latter is free or significantly constrained by something else. For radical skeptics, the absence of a "text" means that interpretations are freely ideological and should openly declare their political interests rather than mask them with the rhetoric of

discovery.23 For conservative skeptics, legal interpretation is constrained by convention in ways that differentiate it (albeit contingently) from open-ended political advocacy—constrained, for example, by "disciplining rules" accepted as binding by an "interpretive community," by a consensus on values, or by traditional communal preconceptions within which the interpreter is always "already situated."24 Since I want to dispute the skeptical premise, I will not enter this intramural debate among varieties of skepticism except to remark that the conservative position seems an unstable halfway house between interpretive objectivism and interpretive nihilism. For once we deny the constraint of the object, there is nothing to guarantee the impartiality of the disciplining rule, of the interpretive consensus, or of the communal preconception. It will always be possible to criticize these surrogates for the object as dominant understandings masquerading as shared ones.25 If there are dissident understandings, then community is attained by ostracizing them; if there is a uniform understanding, this can only be because dissident ones have not yet emerged or have been suppressed. Community is either a facade or living on borrowed time.

It would seem, then, that the rule of an impartial law is theoretically possible only if we can recover the lost object as the touchstone of interpretive truth—only, that is, if we can rehabilitate on the ground of idealism the idea of fidelity to law. To do this we require a critique of skepticism. Such a critique cannot, however, dogmatically reassert the availability of a pristine fact—the plain meaning, the discoverable intention—undistorted by interpretation; such a positivist move would clearly have no persuasive force against our skeptical opponent. Indeed, the idealist's usual defense against criticisms of the self-enclosedness of his interpretive understanding is just that such criticisms betray a positivist hankering for an uninterpreted object, which simply does not exist. Since the idealist identifies the differentiated object with the pregiven fact whose authority he rejects, he is able to admit the circularity or self-referentiality of his understanding and yet deny that these features constitute a defect.26 He is even able to refuse the names skeptic, subjectivist, or relativist, since he believes that these labels assume the availability of the positivist alternative.27 Yet the idealist could not so easily deflect a critique of the self-enclosedness of his understanding (or refuse the name skeptic) if this feature were shown to be a defect (because of the availability of a differentiated object) from the standpoint not of positivism but of a more consistent idealism —one that revealed the skeptic as a vestigial positivist. This is another way of saying that a critique of skepticism must proceed on skepticism's own ground. Skepticism's ground is idealism, which holds that there is no significant object for consciousness apart from the object mediated by interpretation. A powerful critique of skepticism must show that skepticism is untrue to this—its own—insight.

Dworkin's critique of skepticism failed because skepticism is the nemesis—the logical culmination—of Dworkin's idealist position. Having seen, however, how skepticism emerges from this position, we now have a stronger base from which to criticize it. Skepticism claims to be the truth about interpretation. It claims to be the truth not about interpretation within a specific idealist framework but about interpretation per se. That there can be no such thing as fidelity to the object is held to be an absolute and freestanding truth. Yet this turns out to be an unsupported assertion. Having witnessed (in Dworkin's work) the collapse of the idealist ground of interpretive truth, we can see that skepticism is not an autonomous position but the outcome of a particular constructive theory of interpretive understanding. Contemporary skepticism about interpretation is, in Hegel's phrase, a "determinate negation," that is, the negation of a specific conception of the ground of interpretive truth. The truth of skepticism is thus a partial truth relative to that conception; any claims skepticism makes to universal truth are dogmatic, for they involve a logical leap from the failure of the idealist ground to the (undemonstrated) failure of all possible grounds.

Yet this by itself is not an adequate answer to skepticism. Even were it not a freestanding truth, skepticism would nonetheless be the final truth if there were no possibility of movement to a new ground of interpretive fidelity—to one that has encompassed the lessons learned through the collapse of the previous one. Yet there is such a possibility, and skepticism (as we shall now see) itself points the way to it.

Let us begin by reexamining the structure of the idealist foundation as it stood prior to its downfall. On that foundation, the fully reflective interpretation of a practice (like the common law) was initially thought capable of being true to the practice, because the latter exists only as already interpreted by the participants' intuitions, which inchoately possess the thematic idea consciously grasped by thought. The test of theory was thus its ability to integrate well-settled intuitions (Dworkin's "paradigms") held with a conviction approximating that produced by insight; and the theory so corroborated could then be used to sift more doubtful intuitions as well as to elaborate the practice in relation to novel problems. For an example of this procedure, consider how one might approach the question concerning the meaning of criminal negligence. In the relatively uncontroversial judicial intuition that criminal liability requires a "guilty mind," one might see a foreknowledge that just punishment must be the logical consequence of the claim of validity implied in the wrongdoer's intentional act; and this theory of mens rea might then be employed to select conscious recklessness rather than egregious negligence as the appropriate standard of fault for criminal negligence.

Observe, then, that the structure of interpretive truth on the idealist

foundation is a dialogic one. That is, reflection submits for confirmation of its theory to the participants' intuitions; and this submission of thought is compatible with its preservation as the standard of truth because intuition in turn submits to reflection as its criterion of validity.28 Thought and intuition are thus mutually complementary. Their complementarity is assured by the fact that both fall within one interpreting mind or self-consciousness; they are internal divisions of a whole. Thus intuition is an unclear mode of thinking, while thinking is a clearer form of intuition—a clarification of intuition's enigmatic insights. For simplicity's sake I shall refer to this whole (the idealist foundation) as "mind," which must in this context be understood with the following determinations. First, as a putative basis for the true nature of objects, mind is here not this or that individual mind but the universal mind of a human community—a cosmos or world that, while self-conscious only insofar as an individual mind comprehends its unity, nevertheless exists independently of any particular individual. Second, mind here denotes not simply thinking but the reflective organization of prior intuitions (embedded in language, customs, laws, etc.) already implicitly imbued with thought. That mind is a concrete totality of intuitions implies that its unity is quite compatible with its particularization in distinct communities possessing diverse languages, cultural traditions, and positive laws and yet recognizing certain ends as common to rational beings as such.

Now let us recall what went wrong with idealism. The dialogic foundation of truth collapsed because of its one-sidedness in relation to the other. Idealism excluded and made alien the very differentiated object whose autoconfirmation interpretation required; and the result was that interpretation became an imposition on the object rather than a truth independently confirmed by it. Further, once the criterion of truth was lost, the interpretive framework of an erstwhile universal mind disintegrated into the finite perspectives of a (theoretically limitless) multiplicity of parochial minds; and truth was then redefined as that which accords (for the time being) with the custom or consensus of the particular community. Accordingly, the idealist foundation collapsed because it was inadequate to its own dialogic structure. While implicitly encompassing the difference between subject and object (in the difference between reflection and intuition), the idealist foundation embraced this difference within an undifferentiated unity (since reflection and intuition fall within one mind) that excluded and devalued the truly different object. And with this exclusion, idealism's epistemological optimism turned into skepticism.

Yet insofar as idealism remains skeptical, it persists in the equivocation that characterized its position from the start. On the one hand, idealism claimed that mind is the foundation of all reality—the crucible wherein alone all things exist—and considered everything outside it a nullity; thus,

according to the idealist, there is nothing but interpretation, and so the positivist quest for a neutral touchstone is vain. On the other hand, idealism kept within a self-enclosed circle of interpretations only because it equated the other with the positivist's pregiven fact, which thus still maintains its power over the idealist. Idealism, in other words, defined itself in opposition to the positivist submission to brute facts. It thus allowed its conception of the foundation to be decisively shaped (as self-enclosed, self-referential) by the very object whose authority it denied. Given its residual dependence on this object, idealism had to admit the existence of an "outside" that rendered interpretation an "imposition." A cleft thus opened between mind's claim to be the sole ground of reality and the fact that its reality was now "for" interpretation and distinguished from objectivity. Idealism then sought to remove this contradiction (to go "beyond relativism") by denying the object's reality; but the result was the dissipation of idealism into interpretive "politics." Throughout this life cycle, idealism was shadowed by the pregiven object from which it recoiled and which its reflexive posture raised to a competing absolute. Because idealism identified the differentiated object with the positivist's object, it had to identify reality with a self-enclosed mind; having done so, it could not vindicate mind as the foundation without annulling objectivity per se and therewith itself as a foundation of truth. Idealism, accordingly, betrays a vestigial positivism, for it assumes the existence of an external other, which while in one breath declared to be without significance for human understanding, is in the next allowed to condition this understanding as "finite," "culture-bound," or "historical."

It will help us to see this equivocation as intrinsic to idealist skepticism if we observe it at work in the philosopher who gave this form of skepticism its most intransigent expression. Let us then consider the following passage by Nietzsche, the father of modem perspectivism.

Every center of force adopts a perspective toward the entire remainder, i.e., its own particular valuation, mode of action, and mode of resistance. The "apparent world," therefore, is reduced to a specific mode of action on the world, emanating from a center.
Now there is no other mode of action whatever; and the "world" is only a word for the totality of these actions. Reality consists precisely in this particular action and reaction of every individual part toward the whole—
No shadow of a right remains to speak here of appearance—The specific mode of reacting is the only mode of reacting; we do not know how many and what kinds of other modes there are.
But there is no "other," no "true," no essential being—for this would be the expression of a world without action and reaction—
The antithesis of the apparent world and the true world is reduced to the antithesis "world" and "nothing."—29

Here Nietzsche denies that the humanly constructed world—the world organized by the ends of action—is an "appearance," since there is no truth or reality outside action. At the same time, he acknowledges the existence of a residual antithesis between "world" and "nothing," an antithesis that conditions "world" as a multiplicity of perspectives. Elsewhere, while vehemently denying the existence of a thing-in-itself, he variously refers to the "arranged and simplified world" as one that is "true for us," or as a "falsifying" and an "overpowering."30 Thus, while all the sensible properties of the other have been brought within the horizon of consciousness, the bare thought of the other remains to constitute the intrahuman sphere a falsification. For skepticism, the positivist's object retains this power because it is taken to lie outside mind as a self-standing other—a competing absolute—upon which mind, pursuant to its own interests, constructs an artificial order. The image is one of an impenetrable curtain separating the humanly interpreted world from the void outside it. But the only reason the "nothing" is taken to lie "outside" is that idealism has privileged as the sole basis of truth a one-sided mind. Thus the absolutization of mind empowers a contrary absolute, whose annulment pluralizes mind, whose outcome reveals the persistent force of the annulled.

In the skeptic's shuttling between the poles of "world" and "nothing" we already see the mutual conditioning of opposites that belies the separation assumed by the skeptic. The absolutization of mind conditions the other as "outside"; the outsideness of the other conditions interpretation—the work of mind—as a multitude of opinions. This mutual conditioning suggests a connection or mutual dependence of the polarities. Insofar, however, as this interdependence is not consciously apprehended in a unified conception, it manifests itself subliminally as an endless cycle of violence against various popular representations of the other (nature, the feminine, the foreigner, the Jew, etc.) and as the perspectivism (i.e., cultural or gender relativism) of the crusaders against such violence. That is, the realization of mind as absolute foundation requires the annihilation of the other; but the other's disappearance leads to the fragmentation of mind, which must therefore continually reinstate the other to gain confirmation of its supremacy.31 However, were we to grasp the interdependence of the poles synthetically in a new conception of the ground of interpretive truth, then we will have transcended skepticism as well as the dreary cycle of violence it engenders. At the same time, we will have fulfilled skepticism's own aspirations, for we will only have followed through intransigently the skeptic's claim that there is nothing (i.e., no powerful reality) outside interpretation.

But what is the "other" whose connection with mind has suggested itself? How is it to be conceived? And how are we to conceive the connection between mind and the other? The argument will proceed best if we

consider the last question first. Having witnessed the collapse of the idealist foundation, we now know that the other is not the separate and independent reality that the skeptic takes it to be. The other became significant only through the negation of mind as the sole ground of reality. That is to say, the collapse of idealism showed that mind lacked the other's attestation to its being the structure of truth. And the other became significant only through mind's immanent need for it. This need for the other implies the enfranchisement of what has hitherto been excluded and devalued—no longer as a wholly autonomous, separate, or competing reality but as a partner in a dialogue; and it means, obversely, the renunciation of mind's claim to be the exclusive ground of truth and its sharing this ground with the other. Each pole now submits to the other as to that through whose recognition each is confirmed as an end. Thus the other (we shall soon see what it is) defers to mind as to that through whose need it first acquires an essential value; and mind reciprocally defers to the independence of the other, which confirms mind's dialogic structure as the other's own structure, in which mind sees itself reflected. We arrive, then, at the bedrock reality that guarantees the fidelity of interpretation in terms of dialogic community: the dialogic structure that characterizes mind also characterizes the relationship between mind and its other; hence this structure is indwelling in the independent object itself. Put succinctly, the other is itself embedded within a dialogic whole. But before we can fully grasp what is involved in this statement, we must ask the question we have hitherto postponed, namely, what is the "other"?

4. THE OTHER AS THE SINGULAR SELF

For the skeptic, of course, the other is precisely that which cannot be named or characterized, for any naming is an interpretation from which the other must again be distinguished. Thus Nietzsche writes,

But even supposing there were an in-itself, an unconditioned thing, it would for that very reason be unknowable! Something unconditioned cannot be known; otherwise it would not be unconditioned! Coming to know, however, is always "placing oneself in a conditional relation to something"—one who seeks to know the unconditioned desires that it should not concern him, and that this same something should be of no concern to anyone. This involves a contradiction, first, between wanting to know and the desire that it not concern us (but why know at all then?) and, secondly, because something that is no concern to anyone is not at all, and thus cannot be known at all.32

The unknowability of the other thus presupposes that the other is an unconditioned—that is, a wholly autonomous, self-standing, self-sufficient—object. We have already seen, however, that this way of looking at things

depends on privileging mind as the sole basis of reality and that the supposed unconditionedness of the other is thus itself something conditioned or created. It is only because idealism withdraws into a self-enclosed mind that the other appears autonomous and "of no concern to anyone." This means that the other is not truly autonomous but is rather the other of mind. Because the other is a determinate other—the other of something—there is really no insuperable problem in characterizing it; and indeed Nietzsche, after telling us emphatically that the other is unknowable, proceeds to characterize it in two ways. Let us then derive the conception of the other from the relativist's own mouth.

One of Nietzsche's names for the other we have already heard. He calls it the "nothing." The other is the "nothing" because it is the sheer abstraction from all the possible ways of interpreting objects. It is not what mind makes of the world, or more simply, it is the not-world. But we know what this abstraction from all determinateness is. It is the self. The self is precisely the void that we are forced to think when we strip away all the concrete features of the world—all the ways in which sensation and intuition mold objects in preparing them for thought. Accordingly, the other is not an inaccessible and unknowable beyond; nor is it the stars, planets, galactic monsters, non-Western cultures, the female, or the Jew. The other-than-mind is another mind, but an abstract mind, stripped of all determinate perceptions, feelings, and intuitions. If we now put this conclusion together with the one reached at the end of the previous section, we obtain the following result: the ground for the possibility of fidelity in interpretation is not the unity of a self-enclosed mind (as idealism believed) but the dialogic bond between one mind and another.

The second way in which Nietzsche describes the other is as follows:

Our psychological perspective is determined by the following: 1. that communication is necessary, and that for there to be communication something has to be firm, simplified, capable of precision The material of the senses adapted by the understanding, reduced to rough outlines, made similar, subsumed under related matters. Thus the fuzziness and chaos of sense impressions are, as it were, logicized. 2. the world of "phenomena" is the adapted world which we feel to be real. The "reality" lies in the continual recurrence of identical, familiar, related things in their logicized character. . . . 3. the antithesis of this phenomenal world is not the "true world," but the formless unformulable world of the chaos of sensations—another kind of phenomenal world, a kind "unknowable" for us.33

Here Nietzsche formulates the "unformulable world" as a formless world, a chaos. The phenomenal world, the world present to consciousness, is a world of structure in which diverse things are "logicized" or subsumed under universals. If, then, the other is that which escapes reduction to this artificial unity, then it must be conceived as that which is irreducibly singu-

lar, atomistic, as well as external and indifferent to other singular entities. It must be conceived, in other words, as formless multiplicity. Moreover, there is a connection between Nietzsche's two ways of conceiving the other. For if one assumes (as one must if one absolutizes a one-sided mind) that the atomistic monad has a self-standing or unconditioned reality, then a problem arises concerning how to understand the monad's unconditionedness. As a singular entity, after all, the monad is conditioned on all sides by other monads outside it. It is vulnerable to their influence, pressure, and impact; it is what it is by virtue of being different from something else, and so on. Any plausible notion of the monad's unconditioned-ness must therefore abstract from or exclude the particularity and external dependence of the monad. But this means that the monad is plausibly unconditioned only as emptied of all determinate character—only as the blankness of the self.

We arrive at the conclusion that the absent other—the other hitherto evicted from the real world by idealism, the other declared inaccessible, unknowable, and of no human significance—is the atomistic self or "person" of legal thought. This is the self who resists becoming reduced to, situated in, or constituted by, a one-sided communal mind and who instead takes the emptiness of its own freedom as the sole absolute end. Earlier, however, we saw that (contrary to what it thinks) the other does not stand self-sufficiently outside the communal mind; that it becomes salient only through the self-inadequacy of mind as a foundation of truth. And we said that this inherent connectedness between mind and the other pointed to a new ground of interpretive fidelity. Let us now pursue this suggestion further, armed with the understanding that the other is the atomistic self.

5. DIALOGIC COMMUNITY AS THE UNITY OF IDEALISM AND FIDELITY

Once we see the connection between mind and the other, the possibilities of interpretation are freed from the limitations of a one-sided idealism. Because the other is the other-of-mind, the two premises of interpretive skepticism—that the object is unavailable for testing and that it is devoid of an immanent, self-announcing structure—no longer hold. The object is not unavailable; on the contrary, it is that which is nearest and most familiar to us: it is the self of the individual. Nor is the object bereft of an immanent structure. Because the self's value inherently depends on the self-inadequacy of another self, its claim to self-sufficiency as an isolated monad will prove erroneous. The individual will rather experience its solitude as a defect from the standpoint of its own self-aggrandizing aims; and it will thus seek a reflected or received reality, one mediated through another's self-interested submission to its freedom. In particular, it will seek

confirmation as an end through another's recognition of its property, through another's promissory submission to its mastery of time, through another's reciprocated care for its welfare, through the vindication of mutual respect as the basis of its worth in compensation for torts and in punishment for crimes. Moreover, because the self wants to know itself as an end, it will give an account of this activity in a legal discourse that intuitively apprehends mutual self-abnegation as the basis of individual rights and that specifies this insight in endless detail. In this way, the "other" will evince an autonomous (and self-interpreting) motion toward structures of mutual recognition that reflect the dialogic structure of mind and that thus spontaneously attest to its being the structure of all valid claims to worth.

Once the object of interpretation is seen to possess both an autonomous motion and an embedded structure, interpretation has something to which it can be faithful. A criterion now genuinely exists for distinguishing between interpretation and invention, between true understandings and artificial constructions of law. Legal interpretation need no longer see itself as imposing meanings on an indifferent object; rather, it can submit to the spontaneous movement on the object, passively observing its self-structuring in accordance with the pattern of dialogic community and listening to the discourse through which the self renders this activity self-conscious. Moreover, once the radically differentiated object is seen to be itself embedded within a dialogic whole, the relation between the interpreting mind and its object ceases to be an incestuous one between two operations (reflection and intuition) of the same mind. The object is now sufficiently distinct from mind to be capable of constraining and validating (instead of merely echoing) an interpretation; and yet it is also sufficiently present to mind to yield itself up to interpretation without suffering distortion.

We can now see that the theme of dialogic community by which we have hitherto interpreted the common law is itself the ground for the possibility of this interpretation being true to its object. The ground of interpretation and the theme of interpretation are one and the same. Moreover, the interpretive method we followed itself reflected dialogic community as the ground of valid interpretation. Our method was to hover between, or to adopt simultaneously, two interpretive standpoints—the individualistic one of the common law and the philosophic one, which discerned the relations of mutual respect and concern formed by atomistic selves and certified by common-law judges as sources of right. We adopted this method because it is the one uniquely appropriate to the dia-logic foundation of true theoretical claims about the common law's inner structure. Thus the theme of dialogic community is validated as the immanent unity of law insofar as it is spontaneously produced by the atomistic self in search of its own individual reality; conversely, the atomistic self is

preserved as a thematic principle because the standpoint of community defers to it for the sake of its own confirmation as the foundation of valid rights.

We are now in a position to respond to the series of questions we posed at the outset of this chapter. First, an interpretation of the common law in terms of dialogic community can claim to be more than another "perspective" on law. It can claim to have discerned the common law's own unity, because the structure of dialogic community is, by virtue of the interdependence of mind and its other, immanent in the action of the atomistic self whose realized worth is the common law's end. Because this self's value depends on another self's need for its freedom, it freely enters into relations of mutual respect wherein alone it finds objective confirmation for its claims of final worth; and these relations define the scope of the rights that common-law courts enforce. Interpretation, as Hegel says, merely "looks on" at the spontaneous formation of these relations and self-consciously grasps the intersubjective basis of rights already intuitively apprehended by jurists. In that the object now independently attests to intersubjectivity as the basis of rights, interpretation can, without loss of fidelity, declare as "bad law" those doctrines implying a servile relation between the parties or between the community and the individual. Observe that this account of interpretive fidelity does not contradict the account given earlier by the naive idealist. We still say that an interpretation can be faithful to law because it only makes explicit the thematic principle already implicitly apprehended by the legal imagination; and we still say that our interpretation is well supported if it integrates a wide range of doctrine that in turn commends itself to reflection in light of our "principle of rightness." However, we are now entitled to say this, whereas the naive idealist was not. Because dialogic community embraces the full difference between the interpreting mind and its object (instead of collapsing the difference into a single mind), it provides a basis for the idealist's epistemological confidence that was missing within the idealist framework itself.

Second, the submission of thought to the law's internal unity involves neither a morally neutral description of a tradition's coherence nor an uncritical acceptance of the tradition's own norms. It involves no mere positive description of a tradition, because the unifying theme of the common law can plausibly lay claim to a normativity valid for all traditions. It can do so because, as a relation formed by the mutual surrender of free and equal selves, dialogic community is the structure of all nonviolent, nondomineering realizations of final ends, however these ends may be conceived (whether individualistically or communally); hence it is the structure of all valid claims to respect and concern as well as of their corresponding obligations. Nor does thought's submission to the common law involve an

uncritical deference to the law's internal norms. The principle of right by which we interpret the common law is not the principle that self-consciously animates it; our principle is rather the latent theme of the law, a theme only dimly known to it and which comes to clarity only through the collapse (when separately absolutized) of the principles (formal liberty, positive freedom) by which the law is explicitly ordered. For the law itself, the freedom of the atomistic self is the formative principle; private property, contract, tort, and criminal law are first and foremost realizations of a self that considers itself an end apart from any relation to another. Hence the normative standard by which reflection interprets the common law is different from that which manifestly informs it.

Third, an interpretation of the common law in terms of a normative standpoint different from its own is compatible with fidelity to law, because interpretation does not thematize dialogic community to the exclusion of the principles by which law is self-consciously ordered. It does not reduce the common law to its unifying theme; which is to say, it does not regard the law's atomistic standpoint as insignificant, illusory, or simply wrong. To be sure, the atomistic self's claim of self-sufficiency is mistaken; but because its mistake is necessary to mind's self-validation as the structure of right, interpretation does not disparage atomism in the name of a one-sided communitarianism. Rather, it regards the two perspectives as equal partners. Thus, interpretation looks on as its dialogic theme is validated out of the mouth of the very self-related person who has ostensibly repudiated relation with another; and it regards this autoconfirmation of its theme by a principle other than itself as the only real and satisfying confirmation. We can say, therefore, that legal interpretation occupies the ground where community and the atomistic self meet. It understands the common law in terms of both principles simultaneously; and this understanding itself reflects dialogic community—the mutual recognition of community and atomistic personality—as the ground of valid interpretation. Accordingly, it is this relation that makes possible a reconciliation of critical idealism and fidelity to law; and this reconciliation in turn secures the rule of law against the tyranny of the dominant perspective.

6. A FINAL OBJECTION

At this point, however, a seemingly powerful objection arises. According to our argument, the very possibility of an idealist fidelity to law depends on a postulate—the interdependence of community and atomistic personality—that seems to imply the greatest infidelity. By our own admission, this postulate is unknown to the participants of the common-law process—to lawyers, judges, and doctrinal scholars. These participants frequently speak of an irreconcilable conflict between individual freedom and the obliga-

tions of communal life—a conflict apparently borne out by their incessant struggle to fashion legal "compromises" to mediate it. To these toilers, therefore, the idea of dialogic community will seem fantastic. At best, it will appear as an unsupported object of faith incapable of persuading anyone not already disposed to accept it; at worst, as a mystical unity of opposites by which one conceals from oneself the realities of contradiction in life. As long, however, as our basic principle opposes the viewpoint of the ordinary lawyer, it comes forward as an external perspective by which we manipulate the law in the service of some unspoken interest. Put simply, if fidelity to law means respecting the law's own point of view, how can an interpretation in light of a utopian harmony of community and atom-istic selfhood claim to be faithful?

This objection is not as damaging as it may seem. In fact, we have already answered it repeatedly throughout the course of this book. An interpretation of law in terms of dialogic community is confirmed in its fidelity if and when the postulate we assume at the outset of interpretation is spontaneously produced by the law at the end, that is to say, if and when the law has developed to the point where the idea of dialogic community is already implicit in the oscillation and stalemate between communitarian and individualist paradigms of law. In this dynamic tension between rival absolutes there is revealed the mutual complementarity of the poles that dialogic community involves; all that remains is to grasp this complementarity as a relation of mutual recognition between subsidiary principles and to thematize this relation as the fundamental principle of law. Accordingly, the idea of dialogic community does not oppose the viewpoint of the ordinary lawyer; insofar as this lawyer speaks of a tension between individualism and community, he or she has already understood the bond between these principles and so has already understood that neither is separately an absolute end. This insight marks the timeliness of an interpretation of the common law in terms of dialogic community. Interpretation can be said to conform to the common law when the common law hands us the theme by which we interpret it.34

It seems appropriate to conclude these studies in Hegelian jurisprudence with a word of reconciliation. Our attempt to see the common law's unity has been mainly inspired by the movement called Critical Legal Studies, which denies the existence of such a unity and which thus denies the difference between law and partisan politics. In one sense, therefore, this movement is the principal intellectual adversary of those who seek to recover a viable conception of the rule of law. Yet the remarks in the preceding paragraph suggest that this adversarial relationship might be a superficial appearance. Roberto Unger has affirmed a deep hostility between CLS and mainstream lawyers and legal scholars.35 In doing so, he has failed to see the extent to which CLS merely gave clear expression to what

many in the profession already believed. Indeed, CLS is perhaps best understood as the epitome of the modern common-law consciousness—as the law's highest awareness of the incoherence of all one-sided grounds of law. Viewed in this way, CLS, far from being an adversary to our efforts at reconstruction, is the decisive precondition for whatever success they may achieve. The awareness of the self-contradictoriness in isolation of the poles of individualism and collectivism is just the precondition for our grasping the interconnectedness of the extremes in dialogic community; and so this awareness constitutes the intellectual situation that guarantees the fidelity to law of an interpretation guided by this theme. We are fortunate, then, to be able to conclude a work based on the unity of opposites with a paradox. The distinction between politics and law depends, we saw, on the possibility of a faithful interpretation of the common-law tradition. CLS guarantees the fidelity of an interpretation in light of the only principle that makes fidelity coherent. Hence CLS underwrites the distinction between politics and law.