In lieu of an abstract, here is a brief excerpt of the content:

Thinking about the authority of law can lead one to dizzying heights of wonder, like those reached in Ronald Dworkin’s Law’s Empire.1 It can also lead to oppressive depths of despair, like those depicted in Franz Kafka’s The Trial.2 The stark contrast between the views of law found in these two works—one of fiction, the other of, well, legal fiction—illuminates old disputes over the nature of law and the grounds of its authority. Is law essentially anything more than a miscellany of imperatives and instructions issued by individuals or groups within a society who are specially designated to guide the society’s members and by whom those members are disposed to be guided? And is its authority grounded in anything firmer or more certain than the existence of this general disposition in the membership? In particular, is its authority grounded in some moral property that law necessarily has? Dworkin answers each of these questions with an unqualified yes.On his view, law is an enormously rich and complex intellectual object whose exposition requires a theoretical understanding of a very high order. The elements of positive law—statutes, judicial decisions, written constitutions, and the like—are on his view merely evidence of what the real law is, and the judge’s task in any particular case is to discern from an assemblage of such evidence the true law that underpins these surface phenomena and yields the correct decision. To do this, the judge must have a theory that enables him or her to understand these disparate elements as forming a coherent system of normative political thought. On the best theory, Dworkin Chapter Eleven Emotion and the Authority of Law Variation on Themes in Bentham and Austin John Deigh  maintains, the disparate elements of positive law are unified through a set of underlying principles, which includes the abstract principles of justice and fairness at the core of the society’s political morality. It is the best theory , moreover, not only in virtue of the coherence and unity it brings to our understanding of the law but also in virtue of the accuracy it achieves in its representation of the law.Hence,law,on Dworkin’s view,is essentially more than a miscellany of imperatives and instructions. It is a coherent system of normative thought organized by fundamental principles of justice and fairness and perhaps by other principles of political morality and wisdom. It thus draws its authority from the authority of these principles, and since they are moral principles, the law’s authority is a form of moral authority. What is striking about the legal world that Kafka describes in The Trial, when compared with this grand vision of law that Dworkin presents,is how it turns Dworkin’s vision upside down. One would never for a moment think that law in the world Kafka described was a coherent system of normative thought or that it rested on fundamental principles of justice and fairness. The arbitrary legal decisions and actions that define the protagonist ’s case are the essence of Kafka’s characterization of law, and one would have to be a singularly obtuse reader to regard them, instead, as mere surface phenomena behind which existed a coherent and just legal order. This is, after all, a Kafkaesque world. At the same time, the law’s authority in this world is compellingly evident throughout the novel. Indeed, its authority seems to be enhanced by the very incomprehensibility of the legal regime in which the protagonist finds himself enmeshed. Not that there should be anything surprising in this. An institution’s authority will appear increasingly imperious to those subject to its governance as it makes them feel increasingly small, and an institution can make those subject to its governance feel small by preventing them from understanding how the decisions applying to them were reached, what methods or reasons were followed in reaching them, and what their consequences are. The principle is the same as one we teachers know well. Few things if any, I submit, can make one seem a more profound teacher to one’s credulous students than mystification. Students are dependent on their teacher for instruction; he or she is the authority under whose tutelage they have come; and by promoting their helplessness, a teacher can enlarge the authority he or she has in their eyes. Likewise with legal authority: it too will appear grander to those subject to it when it works to...

Share