Abstract

This essay challenges Dworkin's account of the virtues and consistency of applying the right answer as given by a certain interpretive theory of local law (hereafter, the D-theory) with democratic theory. D-theory adjudication does not have all the virtues Dworkin claims for it. It may involve judicial law-creation as well, rather than being confined to the discovery of preexisting legal rights. It may also involve any of the morally objectionable features of judicial law-creation, including unfairness. It is not immune to the objection based on democratic theory that Dworkin considers. Moreover, discretionary judicial law-creation is free of some of the vices that concern Dworkin. For these reasons, neither Dworkin's view of D-theory adjudication nor his denial that judges commonly have legislative discretion seems to be especially significant for the justification of appellate adjudication.