Chapter 7

Responsibility for Legal Knowledge

Archana Parashar

The aim of this project is to advance theoretical ideas about the nature
of legal knowledge. In the field of legal theory, whose responsibility
is it or should it be to explore the possibility of achieving or even to
aspiring for social justice? I would suggest that every legal thinker, by
virtue of being in the position of creating authoritative knowledge,
must also own up to the responsibility of conceptualising in a manner
that is inclusive and non-oppressive for everyone. I will develop this
argument with the specific example of how the nature of the judicial
task and the concept of legal reasoning are theorised. My main aim
is to push to its logical conclusion the postmodern insight that legal
knowledge, like all knowledge, is constructed. If so, it is important to
also ask how this construction happens, what gets classified as relevant
knowledge, and by whom.
I wish to argue that ideas are cultural products that are ‘created’ by
thinkers, including legal thinkers. The conventions of legal reasoning
that disassociate the ideas and the thinkers’ responsibility for those
ideas result in theories that help maintain the status quo. All legal
thinkers, whether they are in the mainstream or in critical strands, need
to accept their responsibility for such theories. I will use the example
of theoretical explanations for the judicial role to illustrate the role of
theory in legitimising certain worldviews.
The context of my argument is the increasing trend in many areas
of law of replacing judicial discretion with strict legislative rules. Judicial
task is an integral aspect of law in a common law system, and the ne-
cessity of interpretation of any rule cannot be wished away. However
strict the formulation of a rule, no legal theorist suggests doing away
with the institution of the judiciary. And if the judges are to remain the
ultimate arbiters of the meaning of any rule, the real issue is: what is
 Responsibility for Legal Knowledge 179

the basis of judicial authority? Why do we entrust the judges with this
task? What is their special expertise or authority?
Mainstream legal theorists answer these questions by deploying
the doctrine of separation of powers, where the legislature and the
judiciary mutually check and balance each other. It follows that the
judicial authority is to apply the law, while the legislature only can
make laws. The nature of the judicial task is thus determined as a
jurisdictional issue. The alternative theorists (starting from the legal
realists to the modern day critical legal theorists) have challenged the
make/apply division, but have ended up with analyses that explain
judicial authority as the exercise of almost unrestrained power. This
is where most postmodern analyses are: they can deconstruct the
conventional claims of judicial authority but cannot provide any alter-
native. Hence, even though unsatisfactory, the status quo remains.
However, it needs to be recognised that legal theorists make choices
resulting in whether law is conceptualised as maintaining the status quo
or as having a transformative potential, and therefore they must
also carry the responsibility for the consequences flowing from those
choices.
Judges, as part of an institution that is expected to pursue fairness
and justice (and thus substantive equality), should be able to be trusted
to make the right decisions. Therefore, rather than curtailing judicial
discretion, it is important that the conventions of legal reasoning
change. Judges in performing their role of interpretation could be ex-
pected to make choices, but more importantly, they should carry the re-
sponsibility of explaining why the consequences flowing from those
choices are fair. With this conception of the judicial role, it is possible
to expect that justice or substantive equality is to remain an open
category, interpreted contextually. While the contemporary critical
theory endorses contextual analyses, it seems to have lost sight of the
responsibility of the legal thinkers to pursue the possibility of justice.
I argue that there is an urgent need to reconceptualise the nature
of the judicial task and legal reasoning. In doing so, the aspiration
of achieving justice and fairness in law through the courts could be
realised, or at least revived. In order to develop this argument, I will first
discuss the mainstream theory about the nature of legal reasoning;
next, I analyse the efforts of the critical theorists in this regard; and
finally, I build an argument that a new conception of reasoning,
where the agency of the thinker leads to his or her responsibility for
the views, can allow a more plausible basis of the judicial authority
for interpretation.
180 Parashar

Mainstream View of the Judicial Task

Traditional legal theory conceptualises the role of the judges as that
of applying the law. It follows that when judges reason in a legal
manner, they are not concerned with what justice or morality might
require. The judges are constrained so as to not act as political actors
but base themselves on the law. One consequence of this way of the-
orising is that form takes precedence over substance. Legal theory
that compartmentalises legislative and judicial functions is then
unable to correlate the consequences of both — that is, the theorists who
insist on a separation of powers and the constrained role of the judges
can do so only when they ignore the related or even the prior question
of how the legislature makes any rules. This compartmentalising is
one way that form takes precedence over substance. It also allows for
a logical but ultimately problematic severance of law and morality/
justice/substantive fairness.
There is a growing trend across many jurisdictions to replace
judicial discretion with strict rules. The ostensible reason behind
this trend is that the judges have limited authority to apply the rules
and they should not be given the option of ‘making’ the law. That
is supposedly a task for the legislatures. However, it is also generally
accepted that one of the main aims of judicial review is to balance
the exercise of power with the legislature, and that the courts are the
institution that can pursue fairness and justice in the law. If this view
is correct, then rather than legislation providing strict rules, it would
be more desirable that legislation enables a court to make a context
specific determination in a dispute.
This suggestion acknowledges the reality that, however clearly
a statute may define terms and concepts, it cannot preclude the ne-
cessity for interpretation.1 But it also seems to be showing a naïve
belief in the judges as the guarantors of fairness or justice. Even though
feminists have analysed the judiciary as a patriarchal institution,
I would like to argue that the potential for pursuing justice and fairness
inheres in the courts. Why the judiciary does not consistently do so
now is because of the mistaken emphasis on separating law from its
context, as well as the idea that legal reasoning is a distinct form of

1 Jurisprudential texts carry the mandatory debates about the nature of

judicial activity. See, for example, Bix (2003: 145–56). Bix, in another article,
says that the topic of interpretation receives attention primarily in connection
with prescriptions for judges — see Bix (1995: 137–54, especially p. 141).
 Responsibility for Legal Knowledge 181

reasoning. A brief look at the literature discussing the nature of judicial

reasoning will help in identifying the problems with conceptualising
the judicial task as a limited task.
Traditional jurisprudential debates about the separation of law
and politics readily assume that the legislatures are political creatures,
but (at least some schools of thought do hold that) the judiciary
can be expected to pursue justice and fairness (Fuller 1958) and be
apolitical as well (Dworkin 1977). Whether this aim is achieved or not
of course remains a debated issue. In the standard version of posi-
tivist theory, law is separable from politics (and morality). And the
role of the judges is to maintain this separation by applying the law
as it is. The judges are attributed the institutional role of applying the
law, and they thus maintain the legitimacy of the institution of the
Court as the upholder of the ‘Rule of Law’. However, as famously
discussed by Hart, sometimes the judges are faced with the reality
that the law has ‘run out’ and they have to make the law, albeit as
interstitial legislators. The problem, however, is that ‘making law’ is
deemed to be a political activity, while ‘applying law’ is supposed
to be a neutral or non-political activity. Various theories of judicial
role are thus concerned with establishing that the judges reason, or
ought to reason, in the legal manner. If they stray over into reasoning
in a non-legal manner, they are exceeding their authority. Concep-
tualising the judicial task in this manner allows the judges to assume
a distance from the law as they are merely applying what is given
and cannot be blamed for the consequences that follow from their
decisions.
The school of thought that maintains the most rigorous distinc-
tion between making and applying law would be the literalist or tex-
tual interpreters. Frederick Schauer is the most well-known con-
temporary thinker who endorses formalism as the correct approach
for judicial interpretation (see Schauer 1991). The significance of him
insisting that judges ought to be bound by the rules ultimately lies in
his understanding that the doctrine of separation of powers only
authorises the judges to ‘apply’ and not ‘make’ the law. The jurisdic-
tional allocation of power, therefore, takes precedence over any
imperative to achieve substantive justice or fairness in the formalist
understanding.2 While it is common to state that formalism and
literalism are different, I cannot find much that differentiates them.

2 For an extensive discussion of aspects of this thesis, see Meyer (1999).

182 Parashar

But there are other thinkers who maintain that the separation of law
and politics is not possible. The insistence of Hart that law and morality
are separate or at least separable was, on the one side, challenged
by Lon Fuller, a modern natural law theorist, who insisted that words
have meaning in context and therefore judges can only interpret a rule
by reference to its purpose. Since the purpose or function of any rule of
law is not specified explicitly, the judge necessarily has to take the help
of extra legal factors in ascertaining this. These moral and political
factors help make a law meaningful, but there is no scope for saying
that the judge ought to resort to these factors only in some cases. An
implication of this view of the judicial role is that judges have very
wide discretion in interpreting, and they may not be constrained by
the ‘law’ in their deliberations. The law/not law division thereby seems
to be transgressed. The judge in this view exercises wide discretion,
but why we can trust the judge then becomes an issue. The earlier
prominent role given to the common law judges went hand in hand
with a view that the artificial reason of law was different from ordinary
reason. The judges, by virtue of being the trained professionals, had
access to this artificial reason. Since we no longer subscribe to this
view of the nature of legal reasoning, we cannot explain the authority
vested in the judges to interpret in the manner that Fuller requires of
us (see Cotterrell 1989: 21–51). I will return to this point again but,
for now, I turn to Ronald Dworkin’s theory.
On the other side, Dworkin has taken issue with Hart’s argument that
judges in hard cases have to reason in a political manner. Dworkin has
constructed the thesis of the judge who reasons in a non-formalistic
manner, but remains within the law. The task of the judge is to make
the law fit with what has gone before and make it the best that it can
be. The important point, however, is that in doing so, the judge is
remaining within the law, as the law is a gapless system of rules and
principles. It follows in Dworkin’s theory that we can trust the judge
to interpret the legal rules in an expansive manner, or replace them
with appropriate principles, because the judge reasons in an apolitical
manner as he remains within the law.
The significant point in this literature is that jurisprudential theories
are trying to contain judicial authority by arguing that, in interpreting
rules, judges ought to reason in a legal rather than a political manner
(see Campbell 2002). What is legal reasoning then becomes a question
of what is valid interpretation. However, very sophisticated discus-
sions about the meaning of interpretation are far removed, or even
insulated, from any arguments about substantive justice. While the
 Responsibility for Legal Knowledge 183

literalists (or formalists) argue against functionalists (or purposivists),

both are ultimately intentionalists. That is, ultimately they are all trying
to determine what the intention of the rule makers was. They identify
this intention in very different ways, but consider themselves bound
by the discovered intention. For example, the collection of essays in
a recent edited volume titled Law and Interpretation (Marmor 1995)
discusses, in detail, what is intention and how it is to be ascertained.
What this literature does not seem to do is concern itself with the prior
question of what is the point of judicial interpretation. A perusal of
this literature does not yield any useful guidance as to how law can
ensure substantive equality. Legal theory manages to conceptualise
the issue as one about jurisdiction and allocation of authority, rather
than focus on the desirability of reaching substantively just outcomes.
It is this conceptualisation that needs further analysis as it can bring
into view the choice of the thinker.
Furthermore, since the judges are working with an already con-
stituted object called ‘law’, they cannot be expected to bear any re-
sponsibility for what consequences follow from this application. This
object ‘law’ may be the bearer of certain values, but the judges (being
mere appliers of law and not the makers of law) are not personally
responsible, and in some views at least, may not even endorse those
values. The neat division between making and applying the law thus
absolves the judges of any responsibility to try and achieve a fair
outcome, but in the process, judges are upholding the more important
value of reasoning in a legal manner.3 In both cases, the conventions
of legal theory take precedence over the aim of achieving a fair and
just outcome.
I wish to explore the possibility of challenging the way ‘legal
reasoning’ is construed. In particular, there is a need to engage with
the conventions of legal reasoning that portray legal knowledge as
capable of being understood as independent of what morality or
justice might demand. Although feminists and other critical theorists
have consistently critiqued mainstream legal theory, they have not
developed a specific theory of judicial reasoning. Such a conception
of legal reasoning would require a rejoining of law and justice and
morality.

3 See, for a different view of legal reasoning, Finley (1989). See also

Menkel-Meadow (1987) for a similar argument and an illustration of how

the recent entry of non-white men and women and white women has slowly
started changing things.
184 Parashar

There are a number of consequences of separating law and mor-

ality. This disjuncture between law and morality or law and justice is
a relatively recent phenomenon. The predominance of this way of
theorising law obscures the fact that, historically, law and justice have
gone together. The main reason for the legitimacy of legal authority
is variously described as law representing the will of the people, or
representing the collective wisdom of the community, etc. That is,
there is a reason for accepting legal authority. The same idea lies
behind the endeavours to distinguish between law and force. So,
too, the arguments to establish a clear distinction between law and
politics signal that law is about principles rather than about arbitrary
power. However, somewhere along the line, the belief that law can
be or is disassociated from justice and fairness has become the dom-
inant idea. A particular manifestation of this conception is that the
judges can only apply the law as it is. Such an insistence that the
judges ought to apply the law in a formal manner misses the internal
standpoint of law as obligation. In this way of theorising, the legitimacy
of legal authority becomes irrelevant or certainly less important than
the formal binding nature of the authority. I agree with Marianne
Constable when she argues that law as obligation is accepted because
it provides us with reasons to act. Moreover, she says that there is a
connection between law and justice, and the possibilities of justice are
to be realised, not by being bound by rules, but by glimpsing what lies
behind the rules (1999). Thus, when the dominant ways of discussing
the positivist conventions of legal theory posit a radical separation
between law and morals, one consequence is that it allows for the
form of law to become more important than the moral or substantive
content of the legal rules. Such legal theory then develops further
arguments about the nature of judicial authority as an extension of
the idea that courts ought to apply what is given to them. Since all
attention is focused on whether something is entitled to be called
‘law’, not much argument is forthcoming on the substantive content of
these rules. The next logical step is to build a theory of the nature of
judicial authority as an aspect of the doctrine of separation of powers.
That is, the judges are to apply what is made as law, and they cannot
concern themselves with the substantive content or outcome.
In the mainstream positivist theory, this prioritising of form over sub-
stance is achieved by making the authority of law depend exclusively
on the democratic will of the people. The contemporary conventions
of judicial authority are a logical extension of this fiction. It is assumed
that the legislative actions are a legitimate exercise of power, and
 Responsibility for Legal Knowledge 185

from that it follows that judges, not being the elected functionaries,
ought not to alter the expressed will of the people. In this view, the
Rule of Law is upheld if the courts refrain from interpreting the rule in a
non-literalist sense. Instead, they must only engage in legal reasoning
and simply apply the rule.4 ‘Legal Reasoning’ therefore means that
it is different from ordinary, common sense reasoning, as the judges
are constrained from taking into account extraneous factors like the
effect of the rule or the purpose of the rule. Their role is to be bound
by the language in which the rule is expressed.
But even positivist thinkers sometimes acknowledge the limita-
tions of formalism and argue that judges ought to interpret the rule in
order to uphold explicit values — but only to be met with the objection
that this makes the judge ‘free’ of the constraint of rules. An alternate
view put forward by other theorists is that ‘intentionalism’ as the basis
of interpretation can keep the judges within bounds but, at the same
time, allows them to transcend literalism. The proponents of this view
hold that it is a preferable option, as the former alternative would permit
the judges to virtually amend the statutory provisions — something
not permitted by constitutionalism. What this demonstrates is that
the separation of powers doctrine maintains its hold on mainstream
theory; theory that seeks to maintain the law/politics distinction is
caught in its own web.5

Authority and Obligation

The disjuncture in legal discourse happens when theorists give fantastic
reasons for legal, meaning legislative, authority and the corresponding
obligation to abide by this law. I will make my argument with regard
to positivist theory, as it is the dominant form of legal theory.6 His-
torically, the rise of the positivist conventions in legal theory is explained
as due to the influence of rationalism and scientific knowledge’s claim

4 This is also described as ‘Ethical Positivism’. See, for example, Tom

Campbell (1996).
5 See the discussion between Tom Campbell and Jeffrey Goldsworthy in

their edited volume, Legal Interpretation in Democratic States (2002).

6 Most CLT does not seem to focus on the law making aspect of the legal

system. With very few exceptions, critical scholars concern themselves with
the judiciary. Natural law theorists do address these issues but falter as, in the
contemporary pluralistic societies, they are not able to postulate universal or
invariable ethical or moral values.
186 Parashar

to objectivity. Legal theorists who adopt a positivist position maintain

that the validity of law is not dependent on its content. In its more
extreme form, this leads to the view that something validly enacted
is law, and thus the legislatures can enact anything as law so long as
they remain within the constitutional constraints.
What gets obscured in this way of theorising is that even liberalism
makes a distinction between a good and bad or right and wrong
law. However, legal theorists in the exclusive positivism tradition are
strident in their claim that the authority of law is based on its being
law, rather than being good or bad law. From that it follows that law,
validly made, is binding, and the doctrine of ‘Rule of Law’ demands
that judges remain within the law. The judges, therefore, cannot reason
independently of the rule, irrespective of the consequences.
For example, Joseph Raz is the well-known exponent of the view
that we have an obligation to abide by the law because of the nature
of legal rules as exclusionary reason (Raz 1975: 35–48; see also Raz
1979, 1994). That is, to accept the authority of law is to say that we
are bound to do what the law asks us, irrespective of whether we think
it is right or wrong. The nature of this authority is that we replace our
reasons for acting or not acting with the reasons of law. Raz describes
this as the ‘service conception’ of authority. That is, the authority
performs this service for us — it gives us reason to act and we replace
independent reasoning with the authority of law. If we had to judge
in every instance whether the reasoning of law was correct or valid
or moral, etc., the entire purpose of legal authority would be made
redundant.7
In my view, this way of explaining the authority of law becomes
absurd to the point of being nonsensical. Since in positivist legal theory
we no longer seriously focus on the substantive content of the legis-
lative rules, simply to enjoin the courts to uphold those rules will not
do, as it cannot ensure justice. The legitimacy and the moral authority
of the law is highly suspect if all that it has going for it is the majority
opinion (as expressed in the legislation).
Moreover, in focusing all our efforts on making the judiciary ac-
countable, we overlook the obvious fact that the authority of the le-
gislature (rule maker) can be as problematic as that of the judiciary
(rule applier). Jeremy Elkins uses this insight in arguing against the
formalist suggestion that the judges ought to defer to the legislature

7 For this interpretation I draw upon Meyerson (2006: 54–58).

 Responsibility for Legal Knowledge 187

(1999: 103). He makes the point that if the perspective of the rule
maker is the normatively relevant perspective, it must follow that
the legislature can decide or ought to be able to decide what sort of
judgments the courts should make. This is what it means for the court
to be bound by the rules. However, most commentators agree that
when a rule is ambiguous, the courts rely on canons of interpretation
and moreover, these canons are invariably established by the courts.
Most canons of interpretation are not premised upon a theory of
subjective intention or meaning but on democratic or constitutional
principles. For example, the canons that statutes in derogation of
common law should be narrowly construed, that statutes should
be interpreted to avoid constitutional controversies, or that various
provisions of a statute should be read as a coherent whole. Now, if
the legislature was to restrict the authority of the court in respect of
any of these canons of interpretation, it is not clear why a court might
consider itself bound by a legal rule that exacerbates the pathologies
of the legislative system itself. Surely this is not an acceptable
understanding of the division of powers doctrine. It is to uphold this
very understanding of the division of authority that the consequent
theories of interpretation seek to make judicial activity non-political.
It is needless to say that the endeavour fails.
Obviously, the legitimacy of the law is not only maintained by the
courts. At a minimum, both the legislature and the judiciary need to
work together towards that aim. If the fiction of democratic control
on the legislature is dismantled, the ‘making’ of law would need to
be as principled as the applying of law by the judiciary. If that could
be achieved, the necessity of constraining the judges so that they do
not ‘make’ law would be obviated, or the constraints on the judges’
role would not be artificial, as both institutions would be expected to
pursue fair and just outcomes.
If we could conceptualise the legislative action as principled in
a manner that the validity of law would be linked to its capacity to
deliver justice or substantive equality, it may, just may, follow that the
judges ought to simply ‘apply’ this law.8 However, in the absence of

8 I am aware that natural law theory claims such a role for the legislature.

However, there are many reasons why the modern versions of natural law
theory do not appear to be able to displace the dominance of positivist
thinking. However, that is a topic for another essay. The fact that even
contemporary natural law theorists invoke judicial restraint suggests that
we have not transcended the problem of distrusting the judges. See for an
example, Fiss (1982).
188 Parashar

such a paradigm shift in legal theory, I argue that we should openly

acknowledge the necessity that the judges make law as fair as possible.
That is, the judges can, and ought, to reason in a responsible manner.
It might even enable the necessary paradigm shift to happen.
In the meanwhile, the neat division between legislative and judicial
authority, or making and applying law, needs to be deconstructed. This
is necessary so that the courts can play an active and much required
role in imbuing the law with the values of fairness and justice. This role
of the courts is presently overshadowed by the emphasis on restraining
the judges. Restraint in itself is not a problem, but the artificiality of
the reasons for which restraint is exercised ought to be exposed. The
contemporary theories of the judicial role do not articulate a clear
moral basis of judicial authority and, therefore, rely on jurisdictional
allocation of powers as supplying this basis.

Critical and Postmodern Analyses of the Judicial Task

Postmodern theorists have gained acceptance for the nature of all
authoritative knowledge as being constructed knowledge. In brief, as
eloquently explained by Stanley Fish, it means that the authors accept
that the categories of knowledge, and their factuality or truth, are
not natural or given, but conventional and established by interested
forces. In law, this perspective leads to the challenging of mainstream
claims of the neutrality and objectivity of the law. However, it also
follows that since there are no objective truths, it becomes difficult, if not
impossible, to aspire to justice/fairness/substantive equality through
law. It follows that the role of the judges is not different from that of
the legislators, and both are unrestrained exercises of power. Thus,
this view leads to another kind of determinism — if everything is an
exercise of power, nothing needs to change.
Postmodern critics have analysed the claims of the objectivity and
neutrality of legal knowledge and, as an illustration of this genre, I will
use Stanley Fish’s argument in ‘Anti-Professionalism’. In this article,
Fish critiques writers, both on the right and the left political spectrum,
for espousing ‘anti-professionalism’ as a response to the malaise of
professional conduct that seems to be less than reasonable, ethical
or honourable. He is particularly critical of left leaning intellectuals,
that is, the writers who accept that ‘the present arrangement of
things — including . . . categories of knowledge with their attendant
specification or factuality or truth — is not natural or given, but is con-
ventional and has been instituted by the operation of historical and
 Responsibility for Legal Knowledge 189

political (in the sense of interested) forces, even though it now wears
the face of “common sense”’ (1985: 655–56). He insists that any cri-
tique of institutional practices invokes a problematic and essentialist
view that constructed knowledge can be described as fabricated or
made up because it relies on the assumption that pure, natural or
objective truth is existing, accessible and can thus serve as a standard
against which the institutional practices can be measured.
Stanley Fish is explicit in his criticism of Duncan Kennedy’s cele-
brated argument that law teachers are engaged in mystifying legal
knowledge. Fish says that when Kennedy demonstrates that teachers
who persuade students that legal reasoning is a special kind of
reasoning, distinct from ethical and political discourse, are teaching
nonsense, he is incorrect. The teachers may be teaching something
false, but it is not nonsense. In fact, they are teaching from an interested
perspective — just as, if Kennedy wants to teach something other
than what they say, he will no more teach from a neutral perspective
or standpoint. Why and how a perspective becomes dominant
can be explained but not replaced with a neutral or objective view
(Fish 1985: 659).
Fish is scathing in his criticism of left leaning intellectuals for
suggesting that historically contingent knowledge can be critiqued
with the assumption that there is a truth that transcends history. I
am, however, not so sure that Fish is reading these authors in good
faith. He is so insistent that there are no standards that are natural
that he even overlooks the inevitability of conventional standards.
For example, when he critiques Kennedy for arguing that the law
teachers are teaching nonsense, he says that it is not nonsense even
though it may be ‘false’. However, the possibility of classifying anything
as ‘false’ is as much dependent on the existence of ‘truth’ as is the
possibility of classifying something as nonsense on the existence of
something ‘sensible’. Fish seems to be suggesting that it cannot but be
that no judgment or evaluation of any stand is permissible, as there
are no objective standards against which to measure practices. It is
of course not difficult to see what these critics are doing: all that they
are asking for is an acknowledgement that knowledge is contingent.
What may follow from that insight is not the focus of their analyses,
and what others may do with their analyses is not strictly in their
control. I suggest that even Fish recognises this when he acknowledges
that, in his critique of anti-professionalism, he can be charged of
endorsing quietism or acquiescence in the status quo. And I suggest
that he is being less than responsible in arguing that all that follows
190 Parashar

from his argument is that ‘it makes no sense to fault someone for
acting in the only way one can possibly act’ (ibid.: 673). He goes on to
say that this does not rule out opposition, for one can always be faulted
for acting in institutional ways that you deplore; you can always
argue that certain institutional ways and their consequences should
be changed or abolished.
Fish does not explain what is, or can be, the basis for judging whether
one viewpoint is better than another. Since Fish is so insistent that one
cannot invoke objective/real truths, every standpoint is as good as any
other. If effort must be put into changing institutional values, whose
values would these be? To suggest that it is more desirable that the
legal actors can (or must) work to make the judiciary more efficient,
rather than more just, seems at least problematic.

Law and Power

Whether formalists, functionalists, interpretivists or even decon-
structionists, all of the theorists are concerned with explaining how the
judges make sense of a rule that does not yield an obvious meaning.
The mainstream emphasis is on justifying the judicial role as a re-
sponsible or constrained choice.9 The alternative or postmodern
emphasis is on not allowing a false sense of security, and forcing
the issue that judges are exercising power.10 Both of these ways
of explaining judicial authority are flawed. Therefore, I argue that
it is incumbent upon legal thinkers to explore the possibility of
reconceptualising the basis of judicial authority as an aspect of each
individual’s responsibility for the consequences that flow from his or
her opinion.
Feminist and other critical legal scholars are uniquely able to carry
the responsibility of making law respond to the demands of justice
and fairness. One way of doing that is to conceptualise the judicial
task of interpretation as one of attributing meaning to legal rules. If,
as eloquently argued by the deconstructionists, the meaning of any
rule or concept is not pre-existent, it follows that human agency is
involved in attaching or constructing meaning. If so, those making the
choices ought to justify the consequences flowing from those choices.
In this way, judges could be expected to pursue justice through law.
I designate this as the imperative of the judges’ accountability.

9 Robin West classifies this as ‘objective interpretation’. See West (1987).

10 West classifies this as ‘subjective interpretation’ (ibid.).
 Responsibility for Legal Knowledge 191

An obvious objection to this view is, how do I explain the basis of

judicial authority — why do the judges get to decide the meaning of
any rule (of law)? This objection refers to the objective nature of rules
and what the consequent conception of the judge’s proper role is. My
argument is that, once we accept the need for the judge to interpret
the rule, it cannot be claimed with any sense of confidence that ‘law’
is a pre-existing object which the judges are enjoined to discover.
Therefore, the question for us is: if law and politics are not separable,
does it follow that the exercise of power in the name of law is always
bad? That such exercise of power can be oppressive and unjust is in
a strange way a function of the prior, if unarticulated, expectation
that law can, and should, deliver non-oppression and justice. This is
equally true of critical and postmodern analyses that show up the
law as not living up to its claims, but do not go on to explain whether
it is possible for law to be fair, consistent, principled, etc. Or to put
it differently, there is an expectation in all critiques of law that legal
authority ought to be legitimate authority. However, since the con-
ventions of mainstream legal thinking have disassociated law and
justice, there seems to be no firm basis on which to pin the expectation
that law can deliver non-oppression — that is, equity and justice of
law no longer seem to have a firm foundation. That being so, simply
expecting the judges to act in the prescribed manner — that is, in
a non-political manner — does not and cannot guarantee fairness
or justice.11 If anything, this is a very weak effort at maintaining the
legitimacy of the institution of the law (courts), and no wonder the
judges fail. There is a contradiction in legal theory which has no
hold over the lawmakers but wishes to confine the judges within the
‘law’ made. So too, in critical scholarship the main emphasis is on
deconstructing categories. There is no explanation forthcoming as to
how we may agree upon a vision of a desirable society. Since we have
no way of articulating what is desirable, not much effort needs to be
spent on working out how to achieve social change.

11 This is a particular problem with Dworkin’s conception of the judge’s role.

Dworkin seems to be entirely focused on the role of the judge, without paying
much attention to how the legislative rules are enacted in the first place. The
responsibility of his judge to weigh up the relevant principles leaves the judge as
the ultimate and the only knower of the appropriate principles. The judge
seems to be not accountable to anyone other than himself.
192 Parashar

Conceptualising Postmodern Responsible Judges

In this part I argue that it is time to extend the postmodern insight that
knowledge and power are connected. Most contemporary postmodern
theory does not entertain the issue that if both the legislative and the
judicial function entail exercise of power, whether it means that no
responsibility attaches or should attach to those roles. Legal scholars
and judges are involved in the construction of authoritative know-
ledge. And it is incumbent upon these intellectuals to take responsibility
for the consequences that flow from their views. One way of doing
that is to recognise the institutional position of the intellectuals and
how that institutional position vests their views with authority. With
this recognition comes the responsibility for legitimising or changing
an oppressive status quo.

Institutional Position and Responsibility

Rather than trying to maintain the conceptual distinction between
law and politics, it would be far more useful if we could acknowledge
the political nature of law, and then argue why and how this political
power ought to be exercised responsibly. It is towards this end that
the postmodern accounts of interpretation are a helpful starting
point. They can be different from the realist and later CLS strands,
since the notion of responsibility can and ought to be part of the
argument.
The deconstructionist insight that all knowledge is constructed
can be the starting point of reconceptualising judicial authority. I
propose that, rather than giving in to relativism, it is possible and
desirable that one takes the responsibility of acknowledging one’s pos-
ition and institutional status to constitute authoritative knowledge.12
That is, judges, by virtue of their official status, have not only the
opportunity, but also the responsibility to determine the substantive
content of law. This authority can only be legitimately exercised if
the judges acknowledge their agency. I will develop this idea with
the assistance of Margaret Davies’ argument that, by showing the
partial nature of knowledge, an opening is made for conceptualising
differently the idea of responsibility for one’s choices in an inclusive

12 I take this point from Hank Bromley who, in another context, argues

for extending the poststructuralists’ insights in a non-relativistic manner. See

Bromley (1989).
 Responsibility for Legal Knowledge 193

and contingent manner (2002). The judges could be expected to

exercise discretion in interpreting laws with these aims.
It is generally accepted that postmodern and deconstructive the-
ories have challenged the conventional ways of understanding the
meaning of any text (including the legal rules). However, postmodern
analyses need not be conflated with nihilism or destruction of meaning.
And this is possible if it is understood that a postmodern analysis de-
centres and relocates meaning. It can at once illustrate how political
or ethical imperatives are embedded within meaning. The efforts of
conventional legal theorists that expect the judges to find the intention
of the author (legislature) ignore the obvious truism that ‘intention is
neither pure nor primary as it is always mediated, always capable of
being inappropriately rendered, and never accessible except through
language’ (Davies 2002: 119). Moreover, the meaning of the statute
arises from a decision of the interpreters; they choose whether to be
guided by the presumed intention, consensus, social conditions, or
some other factor. The ‘authority’ of the intention operates as a fiction,
‘an ex-post facto reconstruction of a composite or collective intention
which we treat as if it informs the meaning of the text’(ibid.).13
Davies argues that it is obvious that the text and interpretation are
not separate, as the text does not have a pre-interpretation meaning.
The content of the text is brought into being by interpretation. From
this it follows that there is no such thing as plain or objective meaning
that can obviate the need for interpretation. All interpretation comes
from a standpoint; none can claim to be apolitical or neutral. But this
understanding of deconstruction is not, and should not be, equated
with the view that no meaning is possible or that ‘anything goes’. Instead,
the displacement of meaning achieved through deconstruction shows
that it is important that we analyse the indeterminacy of meaning
and discuss openly who gets to say whether something has a ‘plain’,
‘central’, or ‘core’ meaning. These exclusions, when made evident, can
only lead to a re-examination and revision of the conventional methods
of interpretation and of attaching meaning to legal rules.
Deconstruction thus attempts to expose how interpretation is, like
the act of laying down the law, an act of force (see West 1987).

13 See also the set of essays in Part III, ‘Interpretation and Legislative

Intent’, in Marmor (1995: 329–450), where the fictitiousness of the intention

of the lawmaker is very well illustrated.
194 Parashar

The presumed objectivity or neutrality of interpretation masks this exercise

of power. Deconstruction, as an act of unmasking this exercise of power,
serves the political functions of challenging domination and, more
importantly, ‘uncovering new possibilities’ (Davies 2002: 125). This
is also what Balkin means when he says that ‘what one does with
deconstruction is up to the individual’ (1987).
Similarly, Robin West argues that literary interpretation and legal
interpretation are different because of the force behind legal inter-
pretation (1987: 252). The implications of subjective interpretivism
(as propounded by Stanley Fish) are problematic because in that
view there is no standard of what ‘ought’ to be, independent of the
texts/values that are created by the intellectual professionals.14 Thus,
every meaning is ultimately about us imagining alternatives, but none
of these imaginings is based on or invokes our ‘real’ needs, nature or
potential. Thus, law and interpretation are non-different from each
other on the same lines as the literary text and its interpretation. West
argues that this conflation of the law and its text can be avoided if
we can acknowledge that we have real needs that may or may not be
met by the historical, contingently chosen values of the empowered.
West cautions that the difference between the critic and the judge
simply cannot be conflated. While the critic is simply professing another
‘imagining’, which may or may not prove successful, the judge is
doing something very different. When the judge interprets, he speaks
with the force of the State behind that command, in contrast to the
literary critic who only speaks with the backing of reason. Therefore,
literary interpretation and legal interpretation are profoundly dif-
ferent. While subjective interpretivists accept that law is indeed an
act of power, what they and even the objective interpretivists deny
is that ‘adjudication, even though it is imperative, has more in
common with legislation than it has with either literary creativity or
literary criticism’ (ibid.: 227). West goes on to argue that how we
should criticise acts of power is not by reference to their rationality,
coherency or integrity, but by reference to their motivation and their
effects (ibid.).

Basis of Judicial Authority

Therefore, I argue that critical analyses of law can pin a moral sub-
stantive content to law by helping to change the conventions of legal

14 West discusses Stanley Fish’s ‘Anti-Professionalism’ (1985).

 Responsibility for Legal Knowledge 195

reasoning. Challenging the accepted idea that there is a distance

between the law and its interpretation can do this. Keeping in view
the constructed nature of knowledge, the agency of judges must be
acknowledged explicitly. However, the issue is more than the con-
ventional jurisprudential concern of whether the judges are engaging
in a purposive or literal interpretation. It is also more than saying, as
most critical scholars do, that the judges make political choices but
do not have the option of admitting the influence of extraneous factors
(Kennedy 1997). No, the issue more appropriately is to be able to
acknowledge that the task of interpretation involves a conscious
choice. The choice that the interpreter makes should pin the respon-
sibility (for the consequences flowing from that choice) on the same
person. This inevitable connection between the act of making a choice
and carrying the responsibility for it is ignored or at least camouflaged
in legal reasoning. It is this way of understanding legal reasoning that
needs change. I will explicate this point with the help of an example.
In most common law jurisdictions, abortion is regulated through crim-
inal law and the defence of necessity.15 Whether it was ‘necessary’ to
perform or undergo abortion is always a matter of interpretation. A
judge making a choice between allowing and disallowing an abortion
in a particular case would have to confront the reality of the woman’s
agency rather than hide behind the façade of ‘applying’ an already
existing law.
What this means is that the judge’s own value preferences will come
into play. Surely, they come into play in the judicial pronouncements
even now! The only difference is that ‘we’, the legal thinkers, manage
to distance ourselves from any responsibility for this state of affairs
by invoking the discredited yet prevalent idea that the judges can be
neutral and impartial in making their decisions. Such an exercise of
discretion need not be seen as unconstitutional (invoking the separation
of powers doctrine) if the Constitution is seen as an expression of
the aspiration for a just legal system, but in a more than formal sense.
The focus of all legal theory ought to be on the substantive outcomes. If

15 For example, in Australia, in the state of New South Wales, women live
with a rather stringent legal regime. Technically, abortion is a crime on the
statute books. However, the ‘defence’ of necessity has been interpreted to
allow for abortion on fairly liberal grounds. See McSherry (2004).
196 Parashar

the act of choice in attributing meaning could be made a central focus

of legal theory, it would make it possible to reconceptualise the judicial
task as a responsibility to make the law just, non-oppressive and fair,
but in a much more transparent manner than Dworkin’s Judge.
In contemporary constitutional theory, the courts have the function
of making the legislature comply with the Constitution while they are
attributed authority on various bases, none of which is very satisfactory.
As a consequence, courts cannot play a meaningful role in making the
legislature accountable. My proposal is that the basis of authority for
the courts to interpret the rules should be openly acknowledged as an
exercise of power. The judiciary is no different from the legislature in
this regard. But in neither instance (of the legislature or the judiciary)
is the power unfettered. If anything, in this conceptualisation, the
judges will be expected to take responsibility for making the law just
or unjust, oppressive or non-oppressive, since they can no longer
absolve themselves by saying that they are merely ‘applying’ the
law. This accountability for one’s views is a surer way of making
judges responsible. Judges, like all others engaged in governance,
are entrusted with power, and it is not inevitable that power will be
exercised in an arbitrary manner.
In this conception of the judicial role, morality and justice are obvi-
ously integral aspects of the law. However, by acknowledging value
preferences to be an aspect of law as a first step, we can more usefully
argue about which morals and values the law ought to incorporate.
The danger of imposing certain values through law will not be such
a danger because it will be possible to discuss openly which values
to pursue through law and why. However, it may be argued that this
deliberation happens at the level of enactments and it should not
happen at the level of judicial consideration. This objection serves to
create a false sense of confidence by invoking the fiction of demo-
cratic control. Rather than continuing to perpetuate this fiction, it is
far more important to be able to acknowledge that when courts in
the contemporary context are asked to apply/interpret the rule, it is
no part of their brief to examine whether the ‘values’ chosen by the
legislature are permissible or desirable ones. On the contrary, the
only task of the court is to check whether technical requirements
are met. Thus, in effect, there is no review of the substantive values
incorporated in any law. I believe this is one of the main reasons why
the legislatures manage to enact patriarchal, homophobic and racist
 Responsibility for Legal Knowledge 197

laws.16 If, however, the courts conceptualised their role as one of

making laws just and ensuring substantive justice, each of these laws
would have to be read down at least.
The fact that the courts are complicit with the legislature is in part
due to the legal theories absolving them of the responsibility to check
the exercise of unbridled power by the legislature. If the courts were
to check the legislature, they in turn would be exercising power, and
it might be argued that this exercise of power would not even have
the safeguard of the democratic recall of the lawmakers. Unlike the
classical common law theory, we neither have recourse to the con-
cept of the ‘artificial reason of law’ or the ‘special expertise of the
judges’ to access this reason. The available jurisprudential theories
of judicial authority leave this issue unresolved.17 The issue here is
where the legitimacy of judicial authority can be situated. I will argue
that the imperatives of legitimacy (of the judiciary), and the changed
conventions of what constitutes legitimate knowledge, can work
together to provide an adequate basis of judicial authority.
My argument is premised upon an assumption, or at least a hope,
that the courts will exercise this power, but subject to open scrutiny and,
if nothing else, the courts need legitimacy. At present, such legitimacy
for the decisions of the courts comes from the fiction of separation
of powers and the courts merely applying the law. In the open, ac-
countable and transparent system that I am proposing, this legitimacy

16 For example, in Australia, the attempts to curtail the scope of the Sex
Discrimination Act to allow the state legislatures to restrict the availability of
IVF treatment to women only in heterosexual relations; the Commonwealth’s
attempt to override the ACT legislation, recognising same sex unions as
marriage-like relationships; and the amendment of the Heritage Act by the
Commonwealth parliament, to override the objections of a group of indigenous
women and permit the construction of the Hindmarsh island bridge. These are
instances of legislative actions that the courts, and especially the High Court,
are not expected to curtail.
17 As discussed above, Dworkin’s judge can, or ought to, find the right

principles already existing in the law. However, only the judge knows what
these principles are or what relative weight they will carry in a decision. So
too, Hart’s judge in the penumbra of uncertainty of any rule, is almost free to
decide according to his or her value preferences. In either case, no explanation
is forthcoming as to why such a judge should be expected to do the right thing
by the woman seeking an abortion. The realists and critical legal theorists only
manage to analyse the judicial role as one of exercising unbridled power.
198 Parashar

could depend on the courts’ ability to deliver substantive justice. It

has been argued that a requirement that judges give reasons for their
decisions — grounds of decision that could be debated, attacked and
defended — would serve a vital function in constraining the judiciary’s
exercise of power (Shapiro 1987: 737; Zeppos 1989: 406).
That is, judges would inevitably have to make choices, and the
only guiding principle for the choices made would be that of achieving
substantive equality or justice. The permissibility of abortion, when
it came to be decided by the court, would depend upon the judges’
understanding of what would be a just solution in the given instance.
It follows that what would constitute a just outcome would in turn
be dependent upon the judge being informed of gender hierarchies,
sexual mores in the particular social and cultural context, and the inter-
dependence of legal and social institutions. Therefore, an important
aspect of my argument is that all legal knowledge would have to be
broad based.18 It is therefore, imperative that the judges (and all other
legal thinkers) acknowledge the postmodern insight that knowledge
is constructed rather than a pregiven. If we as legal thinkers are the
ones doing this construction, then we must necessarily carry the re-
sponsibility for legitimising some ideas and delegitimising others.
A judge who is fully conversant with the social realities and the im-
plications of gender hierarchies can be expected to make an informed
decision that would lead to substantive justice for the woman. In this
conceptualisation, not only is the judge able to draw upon a wider
base of knowledge, but is also expected to make a morally right
decision. This is in stark contrast to the present conceptions of the
judicial role, as the judge here is personally implicated in constructing
moral choices. I believe that such a judge has to openly argue for his
or her value preferences as a moral agent, rather than take cover under
the ideas of conventional jurisprudence.
I gain support for my stand from Gerald Postema’s argument that
professional responsibility is different from a lay person’s respon-
sibility, but the professional is not absolved of acting in a moral way
(1980). He makes this argument with regard to lawyers, but I think

18 This assertion is based on an assumption that the form and content of legal
knowledge and education would be broad based. However, that is another
topic and I cannot develop the arguments here.
 Responsibility for Legal Knowledge 199

it is equally applicable to judges. Postema uses Aristotle’s concept

of practical judgment to say that judgment is ‘neither a matter of
simply applying general rules to particular cases nor a matter of mere
intution’(Postema 1980: 68). Judgment is a complex faculty where
general principles and the particularities of a case both come into play.
While the general principles provide the broader framework and a target,
they do not provide the final outcome. The ultimate decision, however,
takes into account the particular circumstances and resolves the con-
flict of values. Such a judgment is, therefore, a comprehensive
view of the values and concerns at stake, which in turn involves an
‘awareness of the full range of shared experience, beliefs, relations, and
expectations within which these values and concerns have significance’
(ibid.). Thus, morality is not merely a matter of getting things right,
but of relating to people in a special and specifically human way.
Professionals have to act in specifically moral ways, and the distinction
between professional and private morality can remain. What can be
done is to conceptualise the moral responsibility of the professional
in a broader sense — in some ways, as an acknowledgement that the
professional role is not a fixed role. A ‘recourse role’ conception allows
for the possibility of accepting that ‘the recourse role requires the agent
not only to act according to what he perceives to be the explicit duties
of the role in a narrow sense, but also to carry out those duties in
keeping with the functional objectives of the role’(ibid.: 83). But a
stumbling block here is: what are the institutional objectives the role
(of the judge) is designed to serve? Therefore, Postema’s suggestion
that a lawyer’s role can be reconceptualised as a recourse role needs
to be supplemented with the idea that the institutional role of the
judge should be one of exercising judgment.
I will briefly explore how this conception of the judicial role can
work out, with regard to the permissibility of abortion. Suppose such
a judge has strong moral views about the impermissibility of abor-
tion. Would he or she be justified in thus prohibiting its availability?
I suggest that the answer comes from the liberal principle that law
ought not to impose moral values unless there is a strong reason for
curtailing individual autonomy. Thus, the judge would have to find
reasons for curtailing this autonomy of the woman. It is by now well
and truly established by feminist analyses that the claims of stronger
rights of the foetus are simply incoherent. The fact that judges still
200 Parashar

keep finding reasons for denying autonomy to the woman is because

they have the option of abdicating responsibility in the name of that
is what the law says, whether in the form of statutes or precedents.
If the judge had to take personal responsibility for making a moral
decision, the line of reasoning would have to be very different. An
imposition of a personal moral standpoint would not constitute valid
reasoning under my proposal, while it does so in the contemporary
system. The only difference is that at present the judges do not have to
acknowledge their interpretations to be personal value preferences. If
this were not the case, the issue of who is occupying the bench of a
higher court would be an irrelevant consideration. Therefore, I suggest
that an open acknowledgement that judges have to make responsible
decisions opens the possibility (but does not guarantee) that their
decisions would be more amenable to the demands of justice and
substantive equality.
Substantive equality for women in regard to abortion would thus
amount to a legal system, through courts allowing a woman (rather
than the doctor or the priest or the law) to decide when to have an
abortion. It is essential that the woman gets to make the decision, as it is
her body, her conscience, and her understanding of the relationship
between the foetus and herself. Legal systems that ‘allow’ abortion in
some circumstances make it the decision of the doctors and eventually
of the courts. However, as Catherine MacKinnon (1987: 94) has
famously said: life and death decisions are made routinely, but why
should women not be able to make these decisions for themselves?
The role of the judge can only be to facilitate the decision-making by
the woman.
However, this brings me back to the issue of prevalent female
foeticide in parts of the world. It might be argued that the conception
of substantive equality I have proposed might lead to the logical
conclusion that abortion is available on demand by the woman, and
thus there can be no legitimate constraint on this practice. Nivedita
Menon has argued eloquently that Indian feminists cannot avoid the
incoherence of a position when they ask for the legal availability of
abortion, but want to restrict female foeticide through law (Menon
1993). She argues that this incoherent response of Indian feminists
shows at least that the rights discourse cannot simply be transferred
from one context to another. In responding to these objections, I also
 Responsibility for Legal Knowledge 201

wish to include in the discussion the question of whether there is any

fundamental or principled difference in aborting a female foetus and
a foetus with disabilities.
It is undeniably true that sexism and eugenics are equally rep-
rehensible. However, that one practice has invited immense soul
searching by feminists while the other does not seem to attract quite
the same scrutiny needs an explanation. I am tentatively making the
argument that this is a problem only because of an expectation that
we have to respond to both in exactly the same way. Maybe it is possible
and desirable that we adopt a contextual approach in determining
how to respond to the two similar but not identical issues.
Ideally, abortion laws should work to facilitate choice by the preg-
nant woman, but if the particular social conditions are such that
women are coerced into aborting female foetuses, then the contextual
approach should be adopted. That is, abortion is available, but only
on the condition that the sex of the foetus is not divulged. This ap-
proach makes gender justice the guiding principle, and even though
there is an element of paternalistic restraint, that is in recognition of the
particular social reality. The solution to the problem is not a universal
rule but rather a contextual decision.
The contextual approach is somehow considered to be less prin-
cipled or less desirable than the universal approach in law. I take
support from the arguments of Minow and Spelman to contend that
a focus on the context is necessary in order to be able to recognise the
patterns of differences that have been used historically to distinguish
among people, places or problems (1990: 1600). The emphasis on
context does not and need not undermine capacities for political,
moral or legal judgments. It is common to object to an emphasis on
context by suggesting that such decisions lead to relativism. How-
ever, such criticisms rest on an unwarranted dichotomy between con-
text and abstraction. But surely by now it must be obvious that there
is no ‘view from nowhere’ (Nagel 1986 in Minow and Spelman
1990: 1627).
Moreover, criticisms that contextual judgments disable principled
judgment do not acknowledge that one can make a principled choice
of context. Once we can get over the hurdle of choosing between con-
text and abstraction, we can focus on the important issue of deciding
which context should matter: ‘The basic norm of fairness — treat like
202 Parashar

cases alike — is fulfilled, not undermined, by attention to what particular

traits make one case like, or unlike, another’ and ‘what makes a pos-
ition a principled one is whether one applies it to all situations so
specified and not how those situations are specified’(ibid.: 1629–30).
Bringing out into the open a discussion about what differences should
matter in classifying cases as like or unlike is not abandoning principle
for particularity, but making the decision transparent, rather than
hiding behind the claim of applying abstract rules.
By its very nature, a context specific decision comes to be made by
the judiciary, and the reason we should have confidence in the judges
is that they can be expected to exercise discretion in a responsible
and a morally justifiable manner. And since the imperative to make
a context specific decision stems from a concern with avoiding op-
pression and exclusion, ‘those concerns may only grow deeper with
immersion in the context of people’s actual experience’ (ibid.: 1633).
Given this conception of judicial authority, I suggest we can hope
to achieve substantive equality in the law for women and every other
disadvantaged section of society.

References
Balkin, Jack M. 1987. ‘Deconstructive Practice and Legal Theory’, Yale Law
Journal, vol. 96: 743–86.
Bix, Brian. 1995. ‘Questions in Legal Interpretation’, in Andrei Marmor (ed.),
Law and Interpretation: Essays in Legal Philosophy. Oxford: Clarendon
Press, pp. 137–54.
———. 2003. Jurisprudence: Theory and Context. London: Thomson, Sweet
& Maxwell.
Bromley, Hank. 1989. ‘Identity Politics and Critical Pedagogy’, Educational
Theory, vol. 39(3): 207–23.
Campbell, Tom. 1996. The Legal Theory of Ethical Positivism. Aldershot:
Dartmouth.
———. 2002. ‘Grounding Theories of Legal Interpretation’, in Jeffrey
Goldsworthy and Tom Campbell (eds.), Legal Interpretation in Democratic
States. Ashgate: Dartmouth, pp. 45–66.
Constable, Marianne. 1999. ‘Laying Aside the Law: The Silences of
Presumptive Positivism’, in Linda Meyer (ed.), Rules and Reasoning:
Essays in Honour of Fred Schauer. Oxford: Hart Publishng, pp. 61–78.
Cotterrell, Roger. 1989. ‘Theory of Common Law’, in Roger Cotterrell, The
Politics of Jurisprudence: A Critical Introduction to Legal Philosophy.
London: Butterworths, pp. 21–51.
 Responsibility for Legal Knowledge 203

Davies, Margaret. 2002. ‘Authority, Meaning, Legitimacy’, in Jeffrey

Goldsworthy and Tom Campbell (eds.), Legal Interpretation in Democratic
States. Ashgate: Dartmouth, pp. 115–30.
Dworkin, Ronald. 1977. ‘Is Law a System of Rules?’, in Ronald Dworkin (ed.),
The Philosophy of Law. Oxford: Oxford University Press, pp. 38–65.
Elkins, Jeremy. 1999. ‘Frederick Schauer on the Force of Rules’, in Linda
Meyer (ed.), Rules and Reasoning: Essays in Honour of Fred Schauer.
Ashgate: Dartmout, pp. 79–108.
Finley, Lucinda. 1989. ‘Breaking Women’s Silence in Law: the Dilemma of
the Gendered Nature of Legal Reasoning’, Notre Dame Law Review, vol.
64: 886–910.
Fish, Stanley. 1985. ‘Anti-Professionalism’, Cardozo Law Review, vol. 7:
645–77.
Fiss, Owen. 1982. ‘Objectivity and Interpretation’, Stanford Law Review,
vol. 34: 739–64.
Fuller, Lon. 1958. ‘Positivism and Fidelity to Law: A Reply to Professor Hart’,
Harvard Law Review, vol. 71: 630–72.
Kennedy, Duncan. 1997. Critique of Adjudication: Fin de Siecle. Cambridge,
Mass.: Harvard University Press.
MacKinnon, Catherine. 1987. Feminism Unmodified: Discourses on Life and
Law. Cambridge, Mass.: Harvard University Press.
Marmor, Andrei (ed.). 1995. Law and Interpretation: Essays in Legal
Philosophy. Oxford: Clarendon Press.
McSherry, Bernadette. 2004. ‘Abortion and the Criminal Law’, Journal of
Law and Medicine, vol. 11(4): 409–13.
Menkel-Meadow, Carrie. 1987. ‘Excluded Voices: New Voices in the Legal
Profession Making New Voices in the Law’, University of Miami Law
Review, vol. 42: 29–54.
Menon, Nivedita. 1993. ‘Abortion and the Law: Questions for Feminism’,
Canadian Journal of Women and the Law, vol. 6(1): 103–18.
Meyer, Linda (ed.). 1999. Rules and Reasoning: Essays in Honour of Fred
Schauer. Oxford: Hart Publishing.
Meyerson, Denise. 2006. Essential Jurisprudence. London: Routledge-
Cavendish.
Minow, Martha and Elizabeth Spelman. 1990. ‘In Context’, Southern
California Law Review, vol. 63: 1597–652.
Nagel, Thomas. 1986. The View from Nowhere. New York: Oxford University
Press.
Postema, Gerald. 1980. ‘Moral Responsibility in Professional Ethics’, New
York University Law Review, vol. 55: 63–89.
Raz, Joseph. 1975. Practical Reasons and Norms. London: Hutchinson.