Blackstone's Tower: The English Law School - College of Social ...

The Quest For a Core
"Of course, law is a social phenomenon. But its complexity, function,
and consequence all depend on one special feature of its structure. Legal
practice, unlike many other social phenomena, is argumentative. Every
actor in the practice understands that what it permits or requires
depends on the truth of certain propositions that are given sense only
by and within the practice; the practice consists in large part of
deploying and arguing about these propositions... .This crucial argumentative
aspect of legal practice can be studied in two ways or from
two points of view. One is the external point of view of the sociologist
or the historian, who asks why certain patterns of legal argument
develop in some periods or circumstances rather than others, for
example. The other is the internal point of view of those who make the
claims." 27
While both points of view are essential to understanding law, the
external point of view is dependent upon an understanding of the
internal perspectives of participants:
"The historian's perspective includes the participant's more pervasively,
because the historian cannot understand law as an argumentative social
practice, even enough to reject it as deceptive, until he has a participant's
understanding, until he has his own sense of what counts as a good
or bad argument within that practice. We need a social theory of law,
but it must be jurisprudential just for that reason." 28
In short, external study of law is dependent upon its internal study,
which in turn is dependent on morality. Thus, for Dworkin, an
external historical or social scientific account of law which ignores
the internal point of view is "impoverished and defective, like
innumerate histories of mathematics." 29 But why the emphasis on
argumentation? To put the matter simply: one cannot understand,
expound or apply legal rules without interpreting them and the best
interpretation is that which is justified by the strongest argument.
Argument about a contested question of law depends upon a twostage
process: it must fit the authoritative sources of law, what has
gone before, but very often arguments about fit are not dispositive.
In such "hard cases" any problem of interpretation must be
resolved by reference to the underlying principles which justify the
practices of law in a given system. These justificatory principles
are principles of political morality which give a legal system its
coherence and "integrity":
"Law is not exhausted by any catalogue of rules or principles, each with
its own dominion over some discrete theater of behavior. Nor by any
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