LAW, RIGHTS, AND OTHER TOTEMIC ILLUSIONS: LEGAL LIBERALISM AND FREUD'S THEORY OF THE RULE OF LAW ROBIN WESTt In the last ten years, a distinctively American jurisprudence has emerged as the dominant liberal theory of law. 1 The proponents of this new theory have distinguished it from English legal positivism, 2 the old "ruling" liberal theory, by taking seriously what the old theory pur- portedly denied: the autonomous and imperative role of moral rights and principles in legal discourse. Given their serious regard for rights and principles, it is no surprise that the new liberal theorists reject the two definitive claims of legal positivism-that law is the outcome of a positive political procedure and that there exists no necessary connec- tion between law and morality-and endorse instead the natural law- yer's claim that law is both autonomous from politics and essential to the moral progress of civilization. 4 These new liberal theo- " Visiting Assistant Professor of Law, Stanford University. B.A. 1976, University of Maryland, Baltimore; J.D. 1979, University of Maryland; J.S.M. 1982, Stanford University. Ronald Dworkin presented a version of this new theory in his 1978 book, Tak- ing Rights Seriously. Dworkin contrasted his theory with legal positivism, which he characterized as the "ruling theory of law." R. DWORKIN, TAKING RIGHTS SERI- OUSLY at vii (1978). English positivism is also widely purported to be a "liberal" the- ory of law. See id. 2 Dworkin is sharply critical of legal positivism, "which holds that the truth of legal propositions consists in facts about the rules that have been adopted by specific social institutions, and in nothing else." Id. 0 The legal positivist insists that the morality of a norm is neither a sufficient nor a necessary condition of its legality. The legality of a norm is solely a function of social facts and carries with it no moral implications. See H.L.A. HART, THE CONCEPT OF LAW 97, 181-82 (1961); see also R. DWORKIN, supra note 1, at vii, ix (citing Jeremy Bentham as the prototypical English positivist and H.L.A. Hart as English positivism's most important contemporary proponent). 4 The belief of the new liberal legal theorist as described by Dworkin is closely akin to the faith of the constitutional believer as described by Corwin 50 years ago. Both the old constitutionalist and the new legal liberal believe that the highest, most authoritative source of law is non-positivist and that obedience to that anti-historical, impersonal imperative "moralizes," as well as legalizes, power: The theory of law thus invoked . . . [predicates] certain principles of right and justice which are entitled to prevail of their own intrinsic excel- lence, altogether regardless of the attitude of those who wield the physical resources of the community. Such principles were made by no human hands; indeed, if they did not antedate deity itself, they still so express its nature as to bind and control it. They are external to all Will as such (817)