Dworkin V. the philosophers: A review essay on Justice in Robes

University of Illinois Law Review

Volumn 2007, Issue 5, 2007, Pages 1477-1503

  Green, Michael Steven ^a  

^a The College of William and Mary

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EID: 36049035883     PISSN: 02769948     EISSN: None     Source Type: Journal    
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References (142)

1. In a list Brian Leiter compiled of the most cited law professors by specialty for the academic year 2002-2003, the number of citations to Dworkin (4750) was larger than the number of citations to the next ten law professors writing in the philosophy of law combined. Brian R. Leiter, Top 10 Most Cited Faculty by Areas, 2002-03, http://www.leiterrankings.com/faculty/ 2002faculty_impact_areas.shtml (last visited Mar. 13, 2007).
2. See Leslie Green, Three Themes from Raz, 25 OXFORD J. LEGAL STUD. 503, 503 (2005) ("To find another legal theorist [besides Raz] who has not only produced an indispensable body of work, but who taught and encouraged so many jurisprudents of the next generation, one has to go back to his forebear, H.L.A. Hart.");
3. Brian Leiter, The Law School Observer, 5 GREEN BAG 101, 103 (2001) ("Among philosophers, [Dworkin] has long been overshadowed by Raz, who is generally thought by specialists in the field to be the most important living legal philosopher.").
4. See Brian Leiter, The End of the Empire: Dworkin and Jurisprudence in the 21st Century, 36 RUTGERS L.J. 165, 166 (2004) ("The only good news in the story about Dworkin's impact on law and philosophy is that most of the field declined to follow the Dworkinian path-something, interestingly, that those not working in legal philosophy generally do not know.");
5. Thom Brooks, Book Review, 69 MOD. L. REV. 140, 140 (2006) ("[Dworkin's] wide readership has not translated into more than a small number of disciples. It is quite rare to find anyone in the field identifying herself as a 'Dworkinian.'").
6. RONALD DWORKIN, JUSTICE IN ROBES 35 (2006).
7. See Ronald A. Dworkin, "Natural" Law Revisited, 34 U. FLA. L. REV. 165, 165 (1982) (noting that critics have characterized his theory as a natural law theory).
8. Most philosophers of law are positivists. Inclusive legal positivists claim that the law may contain moral criteria of validity, but need not do so. Whether the law includes morality is ultimately answered by social facts-namely the conventions that form the foundation of a legal system. See, e.g., JULES L. COLEMAN, THE PRACTICE OF PRINCIPLE 67-148 (2001) [hereinafter COLEMAN, PRACTICE OF PRINCIPLE];
9. H. L. A. HART, THE CONCEPT OF LAW 250-54 (2d ed. 1994);
10. W. J. WALUCHOW, INCLUSIVE LEGAL POSITIVISM (1994);
11. Jules L. Coleman, Negative and Positive Positivism, 11. J. LEGAL STUD. 139 (1982).
12. Exclusive legal positivists agree that the criteria of legal validity are ultimately determined by social facts, but argue that morality cannot be incorporated into the law at all. See Joseph Raz, Authority, Law, and Morality, in ETHICS IN THE PUBLIC DOMAIN: ESSAYS IN THE MORALITY OF LAW AND POLITICS 195 (rev. ed. 1994);
13. Joseph Raz, Legal Positivism and the Sources of Law, in THE AUTHORITY OF LAW: ESSAYS ON LAW AND MORALITY 37 (1979);
14. Scott J. Shapiro, On Hart's Way Out, in HART'S POSTSCRIPT: ESSAYS ON THE POSTSCRIPT TO THE CONCEPT OF LAW 149 (Jules Coleman ed., 2001).
15. See, e.g., JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS (1980).
16. See, e.g., Stephen R. Perry, Interpretation and Methodology in Legal Theory, in LAW AND INTERPRETATION (Andrei Marmor ed., 1995).
17. See Michael Moore, Law as a Functional Kind, in NATURAL LAW THEORY: CONTEMPORARY ESSAYS 188 (Robert P. George ed., 1992).
18. Only Dworkin's arguments have been described as "riddled with philosophical confusions," COLEMAN, PRACTICE OF PRINCIPLE, supra note 6, at 155, and "largely without philosophical merit," Brian Leiter, supra note 3, at 166.
19. See RONALD DWORKIN, LAW'S EMPIRE 45-46 (1986).
20. Indeed, according to Brian Leiter, it "has by now been subjected to so many withering criticisms, that... if any argument is no longer worth discussing, it is this one." Brian Leiter, Beyond the Hart/Dworkin Debate, 48 AM. J. JURIS. 17, 31 n.49 (2003).
21. DWORKIN, supra note 4.
22. Id. at 30-33, 165-66, 225-26.
23. See Michael S. Moore, Interpreting Interpretation, in LAW AND INTERPRETATION: ESSAYS IN LEGAL PHILOSOPHY 1, 26-27 (Andrei Marmor ed., 1995).
24. HART, supra note 6, at 94. The existence of a legal system also requires that the primary rules that are valid according to the criteria are generally-although not necessarily always-obeyed by the population. Id. at 116-17.
25. On the complexity of these criteria in the American legal system, see Michael Steven Green, Legal Revolutions: Six Mistakes About Discontinuity in the Legal Order, 83 N.C. L. REV. 331, 343-51, 358-60, 374-82 (2005),
26. and Kent Greenawalt, The Rule of Recognition and the Constitution, 85 MICH. L. REV. 621, 630-60 (1987).
27. In fact, sometimes Hart speaks of the rule of recognition not as a social practice but as a proposition specifying the criteria of legal validity within the legal system. See Benjamin C. Zipursky, The Model of Social Facts, in HART'S POSTSCRIPT: ESSAYS ON THE POSTSCRIPT TO THE CONCEPT OF LAW, supra note 6, at 219, 227-28. But he also uses the term to refer to the social fact that a certain rule of recognition (in the prepositional sense) is practiced by officials.
28. The proposition is practiced in the sense that officials agree to enforce only that which satisfies the criteria in the proposition. On the distinction between a rule of recognition in the prepositional sense and the practice of that rule, see COLEMAN, PRACTICE OF PRINCIPLE, supra note 6, at 77-78.
29. DWORKIN, supra note 4, at 9.
30. Judges might disagree about how a case should turn out even though they agreed on enforcement criteria, for they might disagree about whether those criteria are in fact satisfied. They might agree, for example, that the case could be resolved only by a statute validly enacted by the legislature, but disagree about whether the legislative quorum required for valid enactment was satisfied because the presence of a legislator at the time of voting was in dispute.
31. In speaking of Hart's theory as conventionalist, I mean only and vaguely that the rule of recognition rests upon agreement. I do not take a stand on whether it should be understood as a convention in the sense articulated by David Lewis, that is, as a solution to a coordination problem. DAVID LEWIS, CONVENTION: A PHILOSOPHICAL STUDY (1969).
32. For such an account of the rule of recognition, see Jules Coleman, Incorporationism, Conventionality, and the Practical Difference Thesis, in HART'S POSTSCRIPT: ESSAYS ON THE POSTSCRIPT TO THE CONCEPT OF LAW, supra note 6, at 99, 114-22;
33. Gerald J. Postema, Coordination and Convention at the Foundations of Law, 11 J. LEGAL STUD. 165 (1982).
34. Nor do I take a stand on whether it should be understood as a shared cooperative activity in Michael Bratman's sense. Michael E. Bratman, Shared Cooperative Activity: Three Features, 101 PHIL. REV. 327 (1992).
35. For such an account of the rule of recognition, see COLEMAN, PRACTICE OF PRINCIPLE, supra note 6, at 96-99.
36. DWORKIN, supra note 4, at 7.
37. Id. at 8.
38. Id. at 144.
39. Id. at 14.
40. See H. L. A. Hart, Jhering's Heaven of Concepts and Modern Analytical Jurisprudence, in ESSAYS IN JURISPRUDENCE AND PHILOSOPHY 265, 274 (1983);
41. Nicos Stavropoulos, Hart's Semantics, in HART'S POSTSCRIPT: ESSAYS ON THE POSTSCRIPT TO THE CONCEPT OF LAW, supra note 6, at 59, 63-88.
42. E.g., Stavropoulos, supra note 26, at 59, 64.
43. HART, supra note 6, at vi.
44. See, e.g., Jules L. Coleman & Ori Simchen, "Law, " 9 LEGAL THEORY 1, 1 n.1 (2003);
45. Joseph Raz, Two Views of the Nature of the Theory of Law: A Partial Comparison, in HART'S POSTSCRIPT: ESSAYS ON THE POSTSCRIPT TO THE CONCEPT OF LAW, supra note 6, at 1, 7-8.
46. See DWORKIN, supra note 4, at 2.
47. E.g., id. at 2-5. The sociological concept of law is used to identify "a particular type of institutional social structure." Id. at 3. It is employed, for example, when we ask whether a primitive tribal society has law. Dworkin believes, perhaps rightly, that this concept of law is insufficiently determinate for such questions to have an interesting answer. Dworkin also identifies the taxonomic concept of law as that used to identify which standards "are legal standards as opposed to moral or customary or some other kind of standards." Id. at 4. For example, even when a judge must use arithmetic to decide the appropriate damages that must be paid by a defendant, it does not mean that arithmetic is part of the law in the taxonomie sense. Id. at 4-5. Likewise, a Polish court might use Greek law to decide a case, but that does not necessarily mean that, taxonomically, Greek law has become part of Polish law. Id. at 235. Once again, Dworkin does not think that the question of what is law in the taxonomie sense is an interesting one. One can understand Hart's theory as concerning the concept of law in both the sociological and taxonomie sense. Hart's idea of a rule of recognition was intended to identify those societies in which law, rather than a more informal system of norms, exists. Furthermore, Hart's theory might be understood as concerning the taxonomie concept, in the sense that only those norms identified by the rule of recognition should be considered laws. But Dworkin accepts that Hart's conception of a rule of recognition provides an account of the doctrinal concept of law and so is a theory of law in the proper sense. Id. at 26. Hart's theory provides truth conditions for propositions of law. It simply gives the wrong truth conditions.
48. Id. at 140-86. As we shall see later, it might be the case that Hart, like Dworkin, did not insist upon a neat separation between the analysis of the concept of law and concrete applications of the concept.
49. For example, in Justice in Robes, Dworkin notes that "[i]n one respect... [Hart and I] are in the same boat. We both believe that we will understand legal practice and phenomena better if we undertake to study, not law in some particular manifestation, like the law of product liability in Scotland, but the very concept of law." Id. at 145;
50. see also id. at 8-9 (stating that an account of the doctrinal concept of law is the development of a "general theory of law").
51. He does not join Quine, who questions the very existence of philosophical truths that follow from the content of a concept. He is not a skeptic about conceptual analysis. W. V. Quine, Two Dogmas of Empiricism, 60 PHIL. REV. 20, 20-34 (1951).
52. For a Quinean position in the philosophy of law, see Brian Leiter, Legal Realism, Hard Positivism, and the Limits of Conceptual Analysis, in HART'S POSTSCRIPT: ESSAYS ON THE POSTSCRIPT TO THE CONCEPT OF LAW, supra note 6, at 355, 357.
53. David Kaplan, Afterthoughts, in THEMES FROM KAPLAN 565, 573-76 (Joseph Almog et al. eds., 1989);
54. see also Coleman & Simchen, supra note 29, at 12, 18;
55. Michael Steven Green, Dworkin's Fallacy, Or What the Philosophy of Language Can't Teach Us About the Law, 89 VA. L. REV. 1897, 1905 n.21 (2003).
56. DWORKIN, supra note 4, at 9.
57. In Law's Empire, Dworkin also describes this metasemantic position as the view that "[w]e follow shared rules... in using any word: these rules set out criteria that supply the word's meaning." DWORKIN, supra note 11, at 31.
58. DWORKIN. supra note 4, at 9.
59. For a fuller description of the metasemantic conventionalist approach, see Green, supra note 35. at 1899-1903.
60. DWORKIN, supra note 4, at 9-12.
61. Id.
62. DWORKIN, supra note 11, at 73.
63. DWORKIN, supra note 4, at 223-26;
64. WORKIN, supra note 11, at 43-46.
65. DWORKIN, supra note 4, at 10.
66. Id. at 152.
67. Id. at 153.
68. Id. at 166.
69. Id. at 11-12.
70. Id. at 12.
71. I shall not say anything more here about the specifics of Dworkin's nonconventionalist metasemantics. I explore that issue in Green, supra note 35, at 1908-29. In particular, I argue that, much as Dworkin confuses metasemantic conventionalism with a conventionalist theory of law, he confuses metasemantic nonconventionalism with a nonconventionalist theory of law.
72. Dworkin has criticized my interpretation in Justice in Robes, Dworkin, supra note 4, at 226-27, 289 n.5,
73. and I have responded in Michael Steven Green, Does Dworkin Commit Dworkin's Fallacy?, 28 OXFORD J. LEGAL STUD, (forthcoming 2008). I will not discuss this disagreement between the two of us here.
74. See DWORKIN, supra note 11. at 45-46.
75. DWORKIN, supra note 4, at 31 ("Hart assumed, in effect, that the doctrinal concept of law is a criterial concept and that analyzing that concept means bringing to the surface the criteria that lawyers actually use, even if unselfconsciously, in applying it.").
76. Id. at 225-26.
77. In Law's Empire, Dworkin describes theories of law like Hart's as "semantic theories of law" because they allegedly follow from conventionalist (meta)semantic views.
78. WORKIN, supra note 11, at 31-35.
79. DWORKIN, supra note 4, at 31.
80. Id. at 166.
81. Id. at 31.
82. Indeed, it is arguable that there is nothing that conventionalist metasemantics excludes as the content of a criterial concept. Assume that it is claimed to exclude a candidate content. To be a plausible candidate, what the content is must be described by describing what it is about. (For example, the content bachelor can be described by saying that it is about unmarried males.) One has not adequately described a candidate content simply by saying that it is about an indescribable something, for the metasemantic conventionalist could simply deny that thinking about this indescribable something is thinking about anything at all. But once a description of the content is offered, the description itself could be the criteria agreed upon for using a concept. The fact that any description can be made the criteria of a concept has been taken advantage of by defenders of conventionalist metasemantics. Consider the metasemantic theory for natural-kind terms, discussed earlier, according to which the meaning and reference of these terms is fixed by the underlying structure of a paradigm sample. See supra text accompanying notes 43-19. Although such accounts appear incompatible with conventionalist metasemantics-since the underlying structures of these paradigm samples can be unknown to those using the term-metasemantic conventionalists can reply that the description by means of which this alternative metasemantic theory is articulated is itself part of the criteria for using the term. The word "gold," for example, means "whatever has the same structure as the stuff picked out by the appropriate causal-historical relationship with the first uses of the term 'gold.'" See, e.g., Green, supra note 35, at 1950-51;
83. Frederick W. Kroon, Causal Descriptivism, 65 AUSTRALASIAN J. PHIL. 1 (1987);
84. David Lewis, Putnam's Paradox, 62 AUSTRALASIAN J. PHIL. 221 (1984). Indeed, if Dworkin argued that his theory of law could not be the content of a criterial concept, he would be saying, in effect, that conventionalist metasemantics is unable to explain how one could think his theory of law, even to reject it. I doubt-and Dworkin never suggests-that he thinks metasemantic conventionalism is that bad of a theory. To say that conventionalist metasemantics renders no content unthinkable is not to say that a content cannot be unthinkable in particular circumstances. What conventionalist metasemantics makes impossible is thinking a content that outstrips currently accepted criteria for the concept's use. Any content can be thought if it is formed in the right way, and any content can be unthinkable if it is formed in the wrong way. For this reason, conventionalist metasemantics can make conventionalist theories of law unthinkable. Consider Dworkin, who currently accepts a nonconventionalist theory of law. According to metasemantic conventionalism, when Dworkin is thinking about the law, he cannot be thinking about the law as identified by a conventionalist theory like Hart's, because that attributes a content to Dworkin's concept of law that outstrips the criteria for using the concept that Dworkin currently accepts. For the metasemantic conventionalist, Dworkin thinks about Hart's theory of law (in order to reject it) only when he generates a concept whose criteria are, by stipulation, those spelled out in Hart's theory. In contrast, nonconventionalist metasemantics would open up the possibility that Dworkin is actually thinking about the law as identified in Hart's theory when he tries to think about the law as identified by his own theory.
85. Green, supra note 35, at 1917-18.
86. HART, supra note 6, at 246.
87. DWORKIN, supra note 4, at 141.
88. Green, supra note 35. at 1919-29.
89. DWORKIN, supra note 4, at 163.
90. Id. at 190;
91. see also id. at 32, 165-66, 214.
92. He makes the same claim in Law's Empire: "Semantic theories [of law] suppose that lawyers and judges use mainly the same criteria (though they are hidden and unrecognized) in deciding when propositions of law are true or false ...." DWORKIN, supra note 11, at 33.
93. See supra text accompanying notes 62-63.
94. This is true even if one expands the agreement required in a conventionalist theory of law beyond officials to include the general population in the jurisdiction.
95. (On the question of whose practices are constitutive of a legal system, see Matthew Adler, Popular Constitutionalism and the Rule of Recognition: Whose Practices Ground U.S. Law?, 100 NW. U. L. REV. 719 (2006).) The point remains that a population can agree concerning the concept of law and nevertheless not have the type of agreement that is necessary for law according to a conventionalist theory of law. That has to be possible, for they must be able to agree that they have no law.
96. DWORKIN, supra note 4, at 31;
97. see also id. at 225 (noting that positivist theorists of law assume that the analysis of the concept of law must "consist in elucidating the tests that lawyers share, except in borderline cases, for judging whether propositions of law are true");
98. WORKIN, supra note 11, at 43 (noting that the project of semantic theories of law like Hart's is "digging out shared rules from a careful study of what lawyers say and do").
99. Of course, because the primary rules that are valid according to the rule of recognition must be generally-although not necessarily always-obeyed by the population, HART, supra note 6, at 116-17, it would probably be the case that most lawyers must obey the Act, however grudgingly. It would not, however, be necessary that they think it is actually enforceable.
100. Of course, it is possible that language-users' criteria for the concept of law specified that they should defer to experts concerning the content and scope of the concept. Cf. Coleman & Simchen, supra note 29, at 10-11. But, once again, that would be true not because the experts said so, but because language users did.
101. DWORKIN, supra note 11, at 44.
102. Id.
103. For a similar argument, see COLEMAN, PRACTICE OF PRINCIPLE, supra note 6, at 181.
104. For a similar argument, see Kenneth Einar Himma, Ambiguously Stung: Dworkin's Semantic Sting Reconfigured, 8 LEGAL THEORY 145, 160-65 (2002).
105. HART, supra note 6, at 126.
106. Paradigm samples (such as motor cars) clearly fall under the term because we agree that they do. Id. at 129.
107. Stavropoulos, supra 26, at 59.
108. Id. at 67-69.
109. Raz, supra note 29, at 1, 1-27.
110. See, e.g., Timothy A.O. Endicott, Herbert Hart and the Semantic Sting, in HART'S POSTSCRIPT: ESSAYS ON THE POSTSCRIPT TO THE CONCEPT OF LAW, supra note 6, at 39;
111. Veronica Rodriguez-Blanco, A Defence of Hart's Semantics as Nonambitious Conceptual Analysis, 9 LEGAL THEORY 99 (2003).
112. See David O. Brink, Legal Theory, Legal Interpretation, and Judicial Review, 17 PHIL. & PUB. AFF. 105 (1988).
113. HART, supra note 6, at 126.
114. Stavropoulos, supra note 26, at 59. 61.
115. See Brian Bix, Can Theories of Meaning and Reference Solve the Problem of Legal Determinacy?, 16 RATIO JURIS 281 (2003);
116. Green, supra note 35, at 1946-48.
117. Indeed, at one point in Justice in Robes, Dworkin suggests he is such a person. He argues that interpretive concepts, like the concept of law as he understands it, "require that people share a practice: they must converge in actually treating the concept as interpretive."
118. WORKIN, supra note 4, at 11.
119. Dworkin appears to argue that the concept of law has the content to which he assigns it because people agree that it does. The same idea pops up in Law's Empire. He argues that the concept of law is interpretive because "[j]udges normally recognize a duty to continue rather than discard the practice they have joined. So they develop, in response to their own convictions and instincts, working theories about the best interpretation of their responsibilities under that practice.
120. " DWORKIN, supra note 11, at 87. Once again, Dworkin suggests that language-users' current attitudes are what determine the contents of their concepts.
121. I rejected Dworkin's argument in Green, supra note 35, at 1927-29.
122. Timothy Endicott, Law and Language, in THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Edward N. Zalta ed., Winter 2007 ed.), http://plato.stanford.edu/entries/law-language/.
123. Id.
124. Himma, supra note 72, at 165.
125. Dennis M. Patterson, Dworkin on the Semantics of Legal and Political Concepts, 26 OXFORD J. LEGAL STUD. 545, 546 n.7 (2006).
126. Raz, supra note 29, at 1, 35.
127. HART, supra note 6, at 246.
128. See Stavropoulos, supra note 26, at 59.
129. Dworkin mentions this essay at DWORKIN, supra note 4, at 288 n.39.
130. Stavropoulos, supra note 26. at 59.
131. See Stephen R. Perry, Hart's Methodological Positivism, in HART'S POSTSCRIPT: ESSAYS ON THE POSTSCRIPT TO THE CONCEPT OF LAW, supra note 6, at 311.
132. Dworkin mentions this essay at DWORKIN, supra note 4, at 31 & 265 n.23.
133. Indeed Perry suggests, contrary to Dworkin, that Hart was not a metasemantic conventionalist. Rather, he engaged in a form of conceptual analysis very similar to Dworkin's own approach. Perry, supra note 93, at 312-13. It is worth noting that in a review of Coleman's book, Perry acknowledges that Coleman's critique of Dworkin's semantic sting argument is correct: Coleman asserts it is possible to disagree about the content of the concept of law while agreeing about the criteria of legality in a particular legal system. He also asserts, more importantly, that it is possible to agree about the content of the concept while disagreeing about the criteria in a particular system. He is clearly right on both counts. He is also right that in Law's Empire Dworkin did not distinguish as clearly as he should have done between the criteria for applying the term "law" and the criteria of legality in particular legal systems.
134. Stephen R. Perry, Method and Principle in Legal Theory, 111 YALE L.J. 1757, 1800-01 (2002).
135. He agrees with Coleman that two Dworkinians can be understood as agreeing concerning the content of the concept of law even though they disagree about the criteria of validity within their legal system. Perry does offer a different interpretation of Dworkin's argument, however, according to which "this carelessness on Dworkin's part may well be nothing more than harmless error." Id. at 1801. As Perry notes, it is clearly possible for there to be theoretical disagreement about the criteria of validity in a legal system, that is, disagreement that is motivated by different theories of law. Perry offers as an example the disagreement between inclusive and exclusive legal positivists: It follows that we cannot determine which theory of law we should adopt simply by looking for agreement about the content of the concept of law, because there is no such agreement. In this sense, we can agree with Dworkin's rejection of "semantic" theories (without, it should be noted, having to accept his claim that substantive positivist theories have heretofore all been semantic in character). Id. at 1802. Perry's point is that the disagreement between those offering different theories of law suggests that conventionalist metasemantics cannot be true. For these people do not feel as if they are talking past one another. But this is not all that there is to Dworkin's argument. Dworkin does not merely suggest that conventionalist metasemantics cannot explain theoretical disagreement concerning the law. On that matter Coleman agrees. Dworkin also argues that conventionalist theories of law like Hart's follow from conventionalist metasemantics. Perry refuses to sign on to this part of Dworkin's argument. He refuses to accept "[Dworkin's] claim that substantive positivist theories have heretofore been [meta]semantic in character." Id.
136. COLEMAN, PRACTICE AND PRINCIPLE, supra note 6, at 181.
137. Id. at 182.
138. DWORKIN. supra note 4. at 221.
139. Id. at 221-22.
140. COLEMAN, PRACTICE AND PRINCIPLE, supra note 6, at 182.
141. Id. at 181.
142. See Michael Steven Green, Legal Realism as Theory of Law, 46 WM. & MARY L. REV. 1915, 1939-56 (2005).