Does dworkin commit dworkin's fallacy?: A reply to justice in robes

Oxford Journal of Legal Studies

Volumn 28, Issue 1, 2008, Pages 33-55

  Green, Michael Steven ^a  

^a The College of William and Mary   (United States)

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EID: 41349094852     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gqm025     Document Type: Note

References (117)

1. Michael Steven Green, 'Dworkin's Fallacy, Or What the Philosophy of Language Can't Teach Us About the Law', 89 Virginia L Rev 1897-1952 (2003).
2. Ronald Dworkin, Law's Empire (Cambridge, Massachusetts: Harvard University Press, 1986).
3. See Green, above n 1 at 1915-1927.
4. Ibid at 1915, 1927-29.
5. Ronald Dworkin, Justice in Robes (Cambridge, Massachusetts: Harvard University Press, 2006) at 226.
6. Ibid.
7. Ibid.
8. Dworkin, above n 2 at Chs 4-6.
9. Dworkin, above n 5 at 226-227.
10. In fact, sometimes Hart speaks of the rule of recognition not as a social practice but as a proposition specifying the criteria for enforceability within the legal system. See Benjamin C. Zipursky, 'The Model of Social Facts' in J. Coleman (ed.), Hart's Postscript: Essays on the Postscript to the Concept of Law (Oxford: Oxford University Press, 2001) 219 at 227-228.
11. But he also uses the term to refer to the social fact that a certain rule of recognition (in the propositional sense) is practised by officials. The proposition is practised 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 propositional sense and the practice of that rule, see Jules L. Coleman, Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory (Oxford: Oxford University Press, 2001) at 77-78.
12. Dworkin equates a theory of law with an account of the truth conditions of propositions of law at Dworkin, above n 5 at 230, 244, 246-247.
13. Sometimes, however, he treats a theory of law as being articulated at the 'jurisprudential stage' of legal theory and an account of the truth conditions of propositions of law as occurring later in the 'doctrinal stage'. See especially ibid 12-14. Dworkin's theory of law as integrity, which occurs at the doctrinal stage, would therefore be an account of the truth conditions of propositions of law, not a theory of law. I shall argue below that law as integrity (as well as the two other positions Dworkin entertains at the doctrinal stage, namely Dworkinian conventionalism and pragmatism) are actually applications of Dworkin's theory of law to particular jurisdictions. They should therefore be understood as accounts of the truth conditions of propositions that describe the law of a particular jurisdiction. A theory of law, in turn, should be understood as an account of the truth conditions of all propositions of law, no matter what particular jurisdiction they happen to be about.
14. H.L.A. Hart, The Concept of Law (Oxford: Oxford University Press, 2nd edn, 1994) at 94.
15. The existence of a rule of recognition in a legal system also requires that the primary rules that are valid according to the rule of recognition are generally - although not necessarily always-obeyed by the population. Ibid at 116-117.
16. Of course, officials might disagree about how a case should turn out even though they agree 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 statutes enacted by the legislature but disagree about whether there was a quorum required for enactment.
17. In speaking of Hart's theory as conventionalist, I mean only and vaguely that the rule of recognition rests upon agreement within the jurisdiction. I do not take a stand on whether it should be understood as the solution to a coordination problem. See David K. Lewis, Convention: A Philosophical Study (Cambridge, Massachusetts: Harvard University Press, 1969).
18. For such an account of the rule of recognition, see Gerald J. Postema, 'Coordination and Convention at the Foundations of Law', 11 Journal of Legal Studies 165-203 (1982)
19. Jules Coleman, 'Incorporationism, Conventionality, and the Practical Difference Thesis' in J. Coleman (ed.), Hart's Postscript: Essays on the Postscript to the Concept of Law (Oxford: Oxford University Press, 2001) 99 at 114-121.
20. 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 Philosophical Review 327-341 (1992).
21. For such an account of the rule of recognition, see Coleman, above n 10 at 96-99.
22. See n 19 below.
23. See H.L.A. Hart, 'Jhering's Heaven of Concepts and Modern Analytical Jurisprudence' in Essays in Jurisprudence and Philosophy (Oxford: Oxford University Press, 1983) 265 at 274
24. Nicos Stavropoulos, 'Hart's Semantics' in J. Coleman (ed.), Hart's Postscript: Essays on the Postscript to the Concept of Law (Oxford: Oxford University Press, 2001) 59, 63-88.
25. 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.'
26. Dworkin, above n 5 at 145.
27. In Justice in Robes, Dworkin argues that a general theory of law should be understood as investigating the doctrinal concept of law, that is, the concept that one employs when one makes claims about what is valid or invalid law in various jurisdictions.
28. Ibid at 9.
29. He argues that some confusion has resulted from the failure to distinguish the doctrinal from other concepts of law. Ibid at 2-5. I will accept, at least for the purposes of argument, Dworkin's position that a theory of law reveals the content of the doctrinal concept of law.
30. David Kaplan, 'Afterthoughts' in J. Almog et al. (eds), Themes from Kaplan (Oxford: Oxford University Press, 1989) 565 at 573-576
31. Green, above n 1 at 1905 n 21
32. Jules L. Coleman and Ori Simchen, "'Law"', 9 Legal Theory 1-41 at 12, 18 (2003).
33. I follow him in using the word 'semantic' in this way in Michael Steven Green, 'Halpin on Dworkin's Fallacy: A Surreply', 91 Virginia L Rev 187-201 (2005).
34. Dworkin, above n 5 at 9.
35. In Law's Empire, Dworkin describes as 'semantic' the view that '[w]e follow shared rules... in using any word: These rules set out criteria that supply the word's meaning'. Dworkin, above n 2 at 31.
36. Dworkin, above n 5 at 9.
37. For a fuller description of the metasemantic conventionalist approach, see Green, above n 1 at 1899-1903.
38. Dworkin, above n 2 at 31-35.
39. Dworkin, above n 5 at 30 33, 165-166, 225-226.
40. Ibid at 225. I explore this example of Dworkin's fallacy more fully in Michael Steven Green, 'Dworkin v. The Philosophers: A Review Essay on Justice in Robes', U of Illinois L Rev 1477-1503 (2007).
41. Hart, above n 12 at 246.
42. Green, above n 25 at 1496-1497
43. Stavropoulos, above n 16.
44. For arguments that metasemantic theories would not necessarily have such consequences, see Brian H. Bix, 'Can Theories of Meaning and Reference Solve the Problem of Legal Determinacy?', 16 Ratio Juris 281-295 (2003)
45. Green, above n 1 at 1946-1948.
46. Ibid at 1919-1929. I explore this source of Dworkin's fallacy in greater detail in Green, above n 25 at 1491-1495.
47. Dworkin, above n 5 at 9.
48. Dworkin, above n 2 at 73.
49. Ibid at 43-46
50. Dworkin, above n 5 at 223-26.
51. At times, however, Hart suggests that he and Dworkin are indeed talking past one another. Hart, above n 12 at 239-244.
52. Dworkin, above n 5 at 226.
53. Dworkin, above n 2 at Chs 4-6.
54. Dworkin, above n 5 at 226.
55. Ibid at 12.
56. Dworkin, above n 2 at 66.
57. Ibid at 87; Dworkin, above n 5 at 226-227.
58. Green, above n 1 at 1921.
59. Dworkin, above n 5 at 11.
60. Green, above n 1 at 1920 n 63.
61. Dworkin, above n 2 at 96.
62. Dworkin, above n 5 at 226.
63. Dworkin, above n 2 at 226.
64. Dworkin, above n 5 at 226 (emphasis mine). At times Dworkin suggests that the laws of other jurisdictions can be understood only in the light of the moral interpretation of the legal practices of one's own jurisdiction. Having determined that law as integrity is the proper approach to our jurisdiction, the laws of all other jurisdictions would be seen in the light of law as integrity as well.
65. See Dworkin, above n 2 at 102 (useful theories of law are 'interpretive of a particular stage of a historically developing practice' and 'are by their nature addressed to a particular legal culture, generally the culture to which their authors belong').
66. But see Dworkin, above n 5 at 163 (he seeks to answer the question of what makes a claim of law true 'not just for a particular legal system, like English law, but for law in general, whether in Alabama or Afghanistan'.)
67. ibid at 185 (his account 'aims at very great generality')
68. ibid at 230-231 (same). One problem with the suggestion that the laws of other jurisdictions are seen in the light of the moral purposes of the practices of one's own jurisdiction is it makes Dworkin vulnerable to the charge of parochialism. If we must see all legal systems in the light of law as integrity, wouldn't people in my hypothetical jurisdiction see us in the light of Dworkinian conventionalism?
69. But setting this problem aside, it would still be the case that law as integrity is the application of Dworkin's interpretive theory of law and thus not a theory of law in its own right, for the fact would remain that the criteria that identify the laws of our jurisdiction (and, through it, all other jurisdictions) are whatever result from the moral interpretation of our legal practices.
70. See Hart, above n 12 at 241-242, 248-250.
71. Indeed Dworkin himself admits that the argument for Dworkinian conventionalism is 'self-defeating' for the positivist. Dworkin, above n 5 at 180.
72. Ibid at 226.
73. At Green, above n 1 at 1916, for example, I characterized Dworkin's interpretive theory of law in the following way:
74. According to Dworkin's interpretive jurisprudence, the law consists of the set of norms that would be accepted after a process in which 'the interpreter settles on some general justification for the main elements of [legal] practice' and then reforms it by 'adjust[ing] his sense of what the practice "really" requires so as better to serve the justification'.
75. The quoted passage is from Law's Empire, Dworkin, above n 2 at 66, where Dworkin describes interpretive concepts. I repeatedly spoke of Dworkin's theory of law as involving moral interpretation of legal practices, and never as involving moral interpretation of the bulk of pertinent standing law. Green, above n 1 at 1916, 1919, 1920 n 62, 1921, 1925, 1928 n 76.
76. Ibid at 1909-1915; 1918 (arguing that 'it took a good deal of interpretation on my part to draw an interpretive theory of meaning out of Dworkin's work').
77. Ibid at 1904.
78. Ibid at 1909-1910.
79. Dworkin, above n 5 at 152.
80. Ibid at 153.
81. Ibid at 166.
82. Ibid at 11-12. Unfortunately, Dworkin cannot seem to make up his mind on this issue, for elsewhere in Justice in Robes he suggests that '[t]he purpose of my "semantic sting" argument was to make [the following] point: Sharing a concept does not necessarily mean sharing criteria for its application, but might instead mean sharing paradigms as the basis for interpretive claims'.
83. Dworkin, above n 5 at 218.
84. At one point in Justice in Robes Dworkin concludes, bizarrely, that the metasemantic theory I attribute to him is realist: [Green] discusses at some length a philosophical dispute between what he calls a 'traditionalist' and a 'realist' view of the concepts of gold, water and tiger. The former view treats these concepts as criterial, and the latter insists that they are not criterial but function rather as natural kind concepts. Green apparently assumes that this is a dispute about how all concepts should be understood. So he says that I make 'arguments about meaning similar to those of the realists in order to attack the jurisprudential position that law is exhausted by agreement or convention'. That is not correct, and the misunderstanding is important. I did reject a criterial account of the doctrinal concept of law. But I did not adopt a natural kind semantics for that concept; in Chapter 6 of this book I explicitly rejected a natural kind interpretation of any of the concepts of law. Instead I said that the doctrinal concept, like other important political concepts, is interpretive.
85. Ibid at 227. Dworkin comes to this conclusion about my argument on the basis of my single observation that Dworkin 'employs arguments about meaning similar to those of the realists'.
86. Green, above n I at 1908. But Dworkin does employ arguments similar to the realists, since he insists that questions about the content of the concept of law can have right answers even when there is disagreement about what that content is. Indeed, in Justice in Robes Dworkin himself speaks of 'instructive similarities' between natural-kind concepts and interpretive concepts like the concept of law, because the content of these concepts is not beholden to people's current attitudes.
87. Dworkin, above n 5 at 154.
88. See also Dennis M. Patterson, 'Dworkin on the Semantics of Legal and Political Concepts' (2006) 26 OFLS 545-557.
89. To say that Dworkin's metasemantics is similar to realism in this respect is not to say that he was a realist. Indeed, after introducing the possibility that Dworkin's metasemantic theory is realist, I immediately and clearly reject the idea, Green, above n 1 at 1909-1910, and attribute an interpretive theory of meaning to him repeatedly in the rest of the article.
90. Ibid at 1914, 1915, 1920, 1921, 1924.
91. Ibid at 1913-1914.
92. Dworkin, above n 5 at 289.
93. Nelson Goodman, "The New Riddle of Induction' in Fact, Fiction, and Forecast (Indianapolis, Indiana, 3rd edn, 1979) 59.
94. Dworkin, above n 5 at 289.
95. Green, above n 1 at 1915
96. see also ibid at 1916.
97. Ibid at 1914.
98. Goodman, above n 61 at 63.
99. Ibid.
100. Nelson Goodman, The Structure of Appearance (Cambridge, Massachusetts: Harvard University Press, 1951).
101. Green, above n 1 at 1912.
102. John Rawls, A Theory of Justice (Cambridge, Massachusetts: Harvard University Press, rev edn, 1999) 17-18.
103. Green, above n 1 at 1912.
104. Dworkin, above n 2 at 424 n 17
105. Dworkin, above n 5 at 161.
106. Green, above n 1 at 1914 n 50.
107. Dworkin, above n 5 at 141
108. see also Ronald Dworkin, 'Objectivity and Truth: You'd Better Believe It', 25 Philosophy & Public Affairs 87-139 at 88 (1996) (describing as 'archimedean' a theoretical approach that 'purport[s] to stand outside a whole body of belief, and to judge it as a whole from premises or attitudes that owe nothing to it').
109. Green, above n 1 at 1910, 1913.
110. See Patterson, above n 58.
111. Dworkin, above n 5 at 11.
112. In Law's Empire, Dworkin also suggests that language-users' current attitudes are what determine the content of their concepts. He argues, for example, that the concept of law is interpretive because '[j]Judges 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'. Dworkin, above n 2 at 87.
113. Dworkin, above n 5 at 221.
114. Ibid at 224.
115. See also ibid at 221.
116. Dworkin, above n 2 at 87.
117. Dworkin, above n 5 at 12.