Explaining theoretical disagreement

University of Chicago Law Review

Volumn 76, Issue 3, 2009, Pages 1215-1250

  Leiter, Brian ^a  

^a UNIVERSITY OF CHICAGO   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 71849093425     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (178)

1. Scott J. Shapiro, The 'Hart-Dworkin' Debate: A Short Guide for the Perplexed, in Arthur Ripstein, ed, Ronald Dworkin 22,49 (Cambridge 2007).
2. See Brian Leiter, Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence, reprinted in Brian Leiter, ed, Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy 153, 154 (Oxford 2007), originally published in 48 Am J Juris 17 (2003).
3. For a shorter, punchier, and more polemical version of these doubts see generally Brian Leiter, The End of Empire: Dworkin and Jurisprudence in the 21st Century, 36 Rutgers L J 165 (2004).
4. Ronald Dworkin, Law's Empire 4-6 (Belknap 1986).
5. Id (describing "theoretical disagreement" as a disagreement about law's grounds).
6. Shapiro, Short Guide at 50 (cited in note 1).
7. See Leiter, Beyond the Hart/Dworkin Debate at 155-164 (cited in note 2) (providing an overview of the arguments in the Hart-Dworkin debate).
8. Dworkin, Law's Empire at 5 (cited in note 3).
9. I shall follow Shapiro in treating the argument from theoretical disagreement as independent of what Dworkin calls the" semantic sting" argument. See Shapiro, Short Guide at 41, 54 n 57 (cited in note 1).
10. As Shapiro puts it:The semantic sting [argument] is used to explain why positivists require the grounds of law to be determined by consensus [that is, by the social rule constituting the Rule of Recognition]. Dworkin hypothesizes that positivists insist on consensus because they tacitly subscribe to a criterial semantics, according to which concepts may be shared only if the criteria for the proper application of the concepts are shared. Id.
11. For a discussion of the Rule of Recognition, see text accompanying note 32. There is as various writers have pointed out, no reason to think that the positivist theory of the concept of law is committed to criterial semantics A locus classicus for this point is Joseph Raz, Two Views of the Nature of the Theory of Law: A Partial Comparison, 4 Legal Theory 249, 258-65 (1998). The argument from theoretical disagreement survives the refutation of the "semantic sting" argument because it calls our attention to cases in which people disagree about the "grounds of law" even in the absence of any criteria (even criteria unknown to the speakers) that settle what the grounds of law are.
12. There are two levels at which judges might disagree about the "meaning" of an authoritative legal source: they might, most obviously, disagree about the meaning of the text, or they might agree about the meaning but disagree about the correct theory of meaning or interpretation that explains why the text means what it means This distinction proves important in Parts II and III.
13. 22 NE 188 (NY 1889).
14. Id at 189 (noting that Elmer poisoned his grandfather to prevent him from changing the favorable provisions of his will).
15. Dworkin discussed the case in his famous The Model of Rules I, in Ronald Dworkin, Taking Rights Seriously 14, 23 (Harvard 1977), but in Law's Empire refers to it as "Elmer's Case."
16. See Dworkin, Law's Empire at 15 (cited in note 3).
17. The change in name probably is not accidental, since the features of the case that are important for Dworkin's argument twenty years later in Law's Empire are rather different than those he emphasized in 1967. See generally Ronald M. Dworkin, The Model of Rules, 35 U Chi L Rev 14 (1967). I shall return to that point in Part III.
18. Dworkin, Law's Empire at 16 (cited in note 3).
19. Id at 17.
20. Riggs, 22 NE at 191 (Gray dissenting).
21. Dworkin, Law's Empire at 18 (cited in note 3).
22. Id at 19.
23. 437 US 153 (1978).
24. Endangered Species Act of 1973, Pub L No 93-205, 87 Stat 884, codified as amended at 16 USC § 1531 et seq.
25. See Endangered Species Act § 7, 87 Stat at 892, codified at 16 USC § 1536 (authorizing the Secretary of the Interior to designate endangered species and their critical habitats).
26. See also Hill, 437 US at 159-160 (explaining how the snail darter came to be designated as an endangered species).
27. Hill, 437 US at 166, 171.
28. Id at 173.
29. Dworkin, Law's Empire at 21 (cited in note 3).
30. Id at 23, quoting Hill, 437 US at 196 (Powell dissenting).
31. Dworkin, Law's Empire at 23 (cited in note 3),
32. citing Hill, 437 US at 196 (Powell dissenting).
33. Dworkin, Law's Empire at 5 (cited in note 3).
34. Id at 11. In order to explain theoretical disagreement, Dworkin argues we must treat law as an "interpretive concept," and that his theory, "Law as Integrity," provides the best interpretation of that concept.
35. Id at 87, 94-95. But notice that the central rationale for treating law as an interpretive concept is that doing so is necessary to make sense of theoretical disagreement. See id at 87.
36. Id at 6.
37. Id at 15.
38. Dworkin, Law's Empire at 11 (cited in note 3) ("If [we] have no good answer to the question how theoretical disagreement is possible and what it is about, we lack the essentials ... for intelligent and constructive criticism of what our judges do.").
39. There are, to be sure, competing theories see, for example, Brian Greene, The Fabric of the Cosmos: Space, Time, and the Texture of Reality 230 (Knopf 2004), but not one of them is well established.
40. See Margaret Warner, Expanding Universe, PBS Online NewsHour (Feb 27, 1998), online at http://www.pbsorg/newshour/bb/science/jan-june98/universe-2-27. html (visited Sept 1, 2009) (discussing the disjunction between the implications of gravity and the data on the nature of the universe and the lack of any commonly accepted explanation).
41. H.L.A. Hart, The Concept of Law 80-81 (Oxford 2d ed 1994) :[W]e have already seen... the need, if we are to do justice to the complexity of a legal system, to discriminate between two different though related types [of legal rules]. Under the rules of the one type, which may well be considered the basic or primary type, human beings are required to do or abstain from certain actions, whether they wish to or not. Rules of the other type are in a sense parasitic upon or secondary to the first; for they provide that human beings may by doing or saying certain things introduce new rules of the primary type, extinguish or modify new ones or in various ways control their incidence or control their operations
42. Id at 106.
43. Id at 107-110
44. Id at 109.
45. Hart, The Concept of Law at 91 (cited in note 31).
46. This is the "positive" aspect of the positivist theory of law: what the Rule of Recognition is in a community, hence what the law is, is just a complicated psychosocial fact about the practice of officials and their attitudes towards that practice. See Hart, The Concept of Law at 97 (cited in note 31).
47. Perhaps, as Mark Greenberg suggested to me, the chief justice's first response would be, "Because the Constitution is the highest law." But then if we replied, "Yes we agree it is the highest law, but so what? Why invalidate lower laws just because they are contradicted by the highest law?" At some point, we would elicit a version of the (perplexed) reply I described in the text.
48. A more striking, recent example involves former Alabama Chief Justice Roy Moore, who refused to comply with a federal court's order that the Alabama Supreme Court's display of the Ten Commandments violated the Establishment Clause and should be removed. See Moore v Judicial Inquiry Commision of Alabama, 891 S2d 848, 852-853 (Ala 2004). His refusal to recognize the legal validity of that higher court's decision resulted in his being removed from office by a state judicial ethics commission.
49. See id at 854. Other legal officials, in short, manifested their acceptance from an internal point of view that part of the Rule of Recognition in the United States requires lower courts to abide by the decisions of higher courts, and they did so by (severely) sanctioning Moore for his divergence from the normal practice embodied in the rule.
50. I will return to the details of what the judges actually said in Riggs in Part IV.
51. As Jane Stapleton correctly reminds me, Dworkin is silent on the many cases where common law judges explicitly (that is at Face Value) acknowledge making law and weighing considerations of policy. That fact already considerably reduces the universe of cases for which the Dworkinian theory purportedly has the better explanation.
52. See Sigmund Freud, Notes upon a Case of Obsessional Neurosis (originally published 1909),
53. in James Strachey, ed, 10 The Standard Edition of the Complete Psychological Works of Sigmund Freud 151, 188-189 (Hogarth 1955) (James Strachey, trans).
54. Id at 189.
55. More precisely, the positivist accounts do not try to vindicate the Face Value of the disagreement in the sense that positivist explanations for theoretical disagreement do not rely on the assumption that there is a fact of the matter about what the law is Yet this latter assumption is one that is either explicit or can be reasonably imputed to the parties based on the Face Value of their disagreement
56. Dworkin, Law's Empire at 7 (cited in note 3).
57. Dworkin puts this second possibility somewhat misleadingly: he says that positivists "say that theoretical disagreement is an illusion, that lawyers and judges all actually agree about the grounds of law." Id at 7. It is true that on this second account, theoretical disagreement is a kind of illusion, but nothing requires the positivist to claim in addition that lawyers and judges all actually agree about the grounds of law. If they did, then they would not think they were disagreeing!
58. Judge Richard Posner's account is illuminating in this regard. See Richard A. Posner, How Judges Think 105-107 (Harvard 2008).
59. See, for example, J.L. Mackie, Ethics: Inventing Right and Wrong 35 (Penguin 1977).
60. See, for example, Hartry H. Field, Science without Numbers: A Defence of Nominalism 1-2 (Princeton 1980).
61. Error Theories are, strictly speaking, semantic theories that is, theories to the effect that certain expressions or judgments (for example, about ethical or mathematical properties) are genuinely referential, and thus truth-evaluable, yet systematically fail to refer because the properties in question do not exist. In the text, I prescind from the particulars of the semantic account, since I do not see them as at issue in Dworkin's critique of positivism.
62. Mackie, Ethics at 33 (cited in note 47).
63. Id at 35.
64. For a more complex account of the motivations for religious belief, see Friedrich Nietzsche, On the Genealogy of Morality 66-71 (Cambridge 1994) (Carol Diethe, trans).
65. See also Brian Leiter, Nietzsche on Morality 235-244 (Routledge 2002). But Nietzsche's account is also quite compatible with the Error Theoretic treatment of religious discourse.
66. The classic contemporary noncognitivist treatment of moral discourse is Allan Gibbard, Wise Choices, Apt Feelings: A Theory of Normative Judgment (Harvard 1990).
67. Consider Administrative Office of the US Courts Statistical Tables for the Federal Judiciary 37 table C-4 (Dec 2007), online at http://www.uscourtsgov/ stats/dec07/C04Dec07.pdf (visited Sept 1, 2009) (reporting that out of 236, 256 cases in 2007, 53, 581 were resolved without court action, and only 9, 858 were resolved by the court at trial);
68. Administrative Office of the US Courts, Judicial Case Load Indicators: 12-month Periods Ending March 31, 1998, 2003, 2006, and 2007 (Mar 2007), online at http://www.uscourtsgov/caseload2007/front/IndicatorsMar07.pdf (visited Sept 1, 2009) (reporting that in 2007, 254, 850 cases were terminated in the US district court system and that only 60, 668 appeals were filed in the US court of appeals system).
69. The point was made in the jurisprudential literature against reckless claims about legal indeterminacy by the Critical Legal Studies writers a generation ago. See, for example, Frederick Schauer, Easy Cases, 58 S Cal L Rev 399, 429-30 (1995);
70. Brian Leiter, Legal Indeterminacy, 1 Legal Theory 481, 488 (1995);
71. Ken Kress, Legal Indeterminacy, 77 Cal L Rev 283, 296-97 (1989). There is a certain irony in now needing to reemphasize a similar point against Dworkin, the true believer in global legal determinacy! The difficulty, of course, is that Dworkin's belief in the determinacy of legal reasoning is only a metaphysical thesis not an epistemological one-were it epistemological, then there would be no room, of course, for theoretical disagreement.
72. I simplify, unavoidably, the complexity of considerations that influence parties in a modern legal system. My colleague Adam Muchmore has emphasized to me three other important scenarios though ones consistent with the basic hypothesis about massive agreement about the law. First, large law firms are less likely to tell their corporate clients to "go home," as opposed to give them odds on their chances of success-and corporate clients even with low odds may for all kinds of reasons proceed with litigation. Second, even where the law is not clear, pretrial rulings may "clarify" it-at least for purposes of the dispute at hand-such that parties can calculate what they are willing to pay given what juries are likely to believe about the facts Third, and finally, criminal defendants have more compelling reasons for appeal, even in the face of relative clarity about the law and the facts, than others, and so their rate of appeal would not count against the hypothesis that there is massive agreement about the law.
73. Leiter, 1 Legal Theory at 490-491 (cited in note 55).
74. A defender of Dworkin's view might say that even if theoretical disagreements are not frequent, they are qualitatively important to a legal system since, for example, they arise in cases where the courts must license the exercise of the coercive power of the state, as well as in cases that attract considerable attention because of their overlap with ethical matters that are the subject of public controversy. Of course, no legal positivist accepts the idea that a general jurisprudence must explain how the exercise of coercive power by the courts is generally justified or the idea that cases that attract attention in the newspapers are a central datum to which a theory of law must answer. To be sure, the positivist explanations for theoretical disagreement explain such cases though not in terms congenial to Dworkin's theory.
75. Here I benefited from discussions with Mark Greenberg.
76. To be clear, mere silence does not show there is no theoretical disagreement: the parties have a theoretical disagreement if they have conflicting beliefs about the grounds of law, whether those are clearly expressed. But, of course, what the parties say will be our evidence for imputing such conflicting beliefs to them, so the absence of explicit disagreement creates a serious evidential problem for the claim that there is a genuine theoretical disagreement. I take up that issue in this Part
77. Since Dworkin's central examples of theoretical disagreement are drawn from the US context, I am going to focus on the American legal system, which, arguably, will present the strongest case for Dworkin's view. It is worth noting, of course, that in many legal systems among the authoritative rules binding on officials are rules of interpretation, which eliminate much of the theoretical disagreement familiar in the American context. See, for example, Interpretation Act, Rev Stat Brit Colum, ch 238 (1996). One possibility that needs to be considered is that as we move up the pyramid of cases in the US legal system, there is simply less and less law and more and more lawmaking-more so, perhaps than in those legal systems with judiciaries more disciplined by binding rules of interpretation.
78. Karl N. Liewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons about How Statutes Are to Be Construed, 3 Vand L Rev 395, 398 (1950).
79. Philip Bobbin, Constitutional Fate: Theory of the Constitution 93-94 (Oxford 1982) (explaining that judges often use the six modalities-the historical, textual, doctrinal, prudential, structural, and ethical arguments-in combination).
80. See Daniel A. Farber, Do Theories of Statutory Interpretation Matter? A Case Study, 94 Nw U L Rev 1409, 1410 (2000). Farber examined statutory interpretation decisions by Judges Richard Posner and Frank Easterbrook of the Seventh Circuit, noting that "[i]n terms of their theoretical writings about interpretation, Posner (a leading pragmatist) and Easterbrook (a leading textualist) are as far apart as two judges could be."
81. Id at 1409.
82. Yet Farber found that the cases in which Posner and Easterbrook disagree also provide a test of how closely theories of interpretation are linked to outcomes Somewhat to my surprise, I have concluded that the effect is quite limited. Posner and Easterbrook are as serious about legal theory (and certainly as capable of theoretical analysis) as any two judges we are ever likely to see. Their theories of interpretation are sharply opposed. In the four opinions that I examine in detail, however, these theoretical differences seem to have had only a marginal relationship with outcomes Moreover, it turns out that Posner and Easterbrook are somewhat less likely to dissent from each other's opinions than is typical for judges on their court, the Seventh Circuit. There is in short, a resounding absence of evidence that these judges' sharp theoretical difference has any substantial effects on their judicial votes This means either that their theoretical difference does not matter or that it is precisely offset by their similarities in other respects Like other federal appellate judges they agree on the outcome in the vast majority of the cases on which they sit. At the very least, it seems fair to say, the differences in their work as judges are dramatically smaller than the differences in their jurisprudential writings
83. Id at 1410-11
84. See also Posner, How Judges Think at 346 (cited in note 46).
85. For the classic example of statutory construction to avoid absurdity, see Holy Trinity v United States, 143 US 457, 460-61 (1892):If a literal construction of the words of a statute be absurd, the act must be so construed as to avoid the absurdity.... [T]he Bolognian law which enacted "that whoever drew blood in the streets should be punished with the utmost severity,' did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit." Peter Cane suggests to me that in common law jurisdictions there is a related rule for cases of ambiguity: if the plain meaning is ambiguous, then consult the purpose.
86. See William Blackstone, 1 Commentaries on the Laws of England 58-62 (Chicago 1979).
87. Theoretical disagreement is also possible, of course, about case law: what it means which case is controlling, and so on. If there is an analogue to the Plain Meaning Default Supposition in this context, it would be something like what Hart said about precedent:First, there is no single method of determining the rule for which a given authoritative precedent is an authority. Notwithstanding this in the vast majority of decided cases there is very little doubt. The head-note is usually correct enough. Secondly, there is no authoritative or uniquely correct formulation of any rule to be extracted from cases On the other hand, there is often very general agreement, when the bearing of a precedent on a later case is in issue, that a given formulation is adequate. Thirdly, whatever authoritative status a rule extracted from precedent may have, it is compatible with the exercise by courts that are bound by it of... two types of creative or legislative activity. On the one hand, courts deciding a later case may reach an opposite decision to that in a precedent by narrowing the rule extracted from the precedent, and admitting some exception to it not before considered, or, if considered, left open. . . . On the other hand, in following an earlier precedent the courts may discard a restriction found in the rule as formulated from the earlier case, on the ground that it is not required by any rule established by statute or earlier precedent. . . . Notwithstanding these two forms of legislative activity, left open by the binding force of precedent, the result of the English system of precedent has been to produce, by its use, a body of rules of which a vast number, of both major and minor importance, are as determinate as any statutory rule.
88. Hart, The Concept of Law at 134-35 (cited in note 31). Even though, as I have argued, this is not an adequate response to the Realist arguments for indeterminacy in appellate cases (towards the pinnacle of the pyramid, as it were),
89. see Brian Leiter, Legal Realism and Legal Positivism Reconsidered, in Leiter, Naturalizing Jurisprudence 59, 74-79 (cited in note 2),
90. originally published in 111 Ethics 278 (2001), this seems wholly apt for describing, even in the American system, how case law functions on the vast majority of occasions when legal judgments are required-hence the massive agreement about the law, to which I have already alluded.
91. See notes 54-55 and accompanying text.
92. Shapiro, Short Guide at 35 (cited in note 1).
93. Riggs, 22 NE at 189.
94. Id at 190-191 (declining to follow Owens v Owens, 6 SE 794 (NC 1888)).
95. Riggs, 22 NE at 189.
96. Id at 190 (emphasis added).
97. What I am calling the "natural law" argument could ground different kinds of theoretical disagreements to be sure; my point here is only that in Law's Empire, Dworkin does not so utilize it 73 Dworkin, The Model of Rules I at 23 (cited in note 11).
98. Riggs, 22 NE at l90.
99. See Leiter, Beyond the Hart/Dworkin Debate, reprinted in Leiter, Naturalizing Jurisprudence at 155-158 (cited in note 2).
100. Riggs, 22 NE at l89.
101. Id.
102. Id at 190.
103. Id at 192 (Gray dissenting).
104. The historical context of the decision, discussed in Part IV, confirms this worry.
105. Riggs, 22 NE at 191 (Gray dissenting).
106. Id (noting that the court could not ignore the legislature's rules that were meant to provide safeguards for "grave and important acts").
107. Id at 192.
108. Id. This second observation is in tension with the public policy of enforcing the intentions of testators as written.
109. Riggs, 22 NE at l93.
110. Compare Dworkin, Law's Empire at 16 (cited in note 3).
111. Dworkin's account is also usefully contrasted with the more realistic account of Hill by Richard Lazarus based on a study of Justice Harry Blackmun's papers See Richard Lazarus, Human Nature, the Laws of Nature, and the Nature of Environmental Law, 24 Va Envir L J 231, 255 (2005) (indicating that both the majority and dissent were concerned with the policy implications of upholding the injunction).
112. Dworkin, Law's Empire at 21 (cited in note 3).
113. Hill, 437 US at 196 (Powell dissenting).
114. Dworkin, Law's Empire at 23 (cited in note 3).
115. Hill, 437 US at 184, 185.
116. Dworkin, Law's Empire at 21 (cited in note 3).
117. Hill, 437 US at 194.
118. Id at 196 (Powell dissenting).
119. Dworkin, Law's Empire at 23 (cited in note 3).
120. Id at 6.
121. Id at 15.
122. Id at 11.
123. See Dworkin, Law's Empire at 37-43 (cited in note 3).
124. Shapiro, Short Guide at 42 (cited in note 1). Shapiro, however, thinks there is a stronger argument available to Dworkin. He writes:One need notice only that judges are not the only ones who engage in theoretical disagreements-legal scholars do so as well. The law reviews after all, are filled with articles arguing for the legal propriety of one interpretive methodology over another. Indeed, the great disputations of legal theory-those between originalism and dynamism, textualism and purposivism, documentarianism and doctrinalism-have been precisely about theoretical disagreements in the law. Judges may have a great political interest in hiding the true nature of their activities but scholars generally do not.
125. Id at 42-43. Put to one side the fact that academic debate about law must count as an even more marginal phenomenon for a theory of law than debates at the pinnacle of the pyramid by courts The crucial (but unsupported) claim here is that these academic debates are about the "legal propriety" of these interpretive methods, as opposed to their moral and political virtues So, to
126. take but one current, and much-noted, example, Randy Barnett argues for originalism, not on the grounds that "the law" requires it, but on the grounds that it is morally required given a certain conception of individual rights and the constraints they impose upon morally legitimate government.
127. See, for example, Randy Barnett, Scalia's Infidelity: A Critique of Faint-hearted Originalism, 75 U Cin L Rev 7, 17-19 (2006). The merits of the argument do not matter here; the point is that Barnett is typical of how legal scholars more generally often debate these questions, namely, not in terms of their "legal propriety" but in terms of the moral and political considerations that favor or disfavor competing approaches.
128. See, for example, W.V. Quine and J.S. Ullian, The Web of Belief ch 6 (Random House 2d ed 1978);
129. Paul R.Thagard, The Best Explanation: Criteria for Theory Choice, 75 J Phil 76 (1978);
130. Lawrence Sklar, Methodological Conservatism, 84 Phil Rev 374 (1975),
131. reprinted in Lawrence Sklar, Philosophy and Spacetime Physics 23 (California 1985).
132. See notes 41-42.
133. Compare Dworkin, Law's Empire at 15-20 (cited in note 3),
134. with Dworkin, 35 U Chi L Rev 14 (cited in note 11).
135. See Kim Lane Scheppele, Facing Facts in Legal Interpretation, 30 Representations 42, 49-54 (1990).
136. Id at 50.
137. Id at 51-52.
138. Id at 52.
139. 18 NE 148 (NY 1888).
140. Scheppele, 30 Representations at 52 (cited in note 104).
141. Id.
142. See, Avery, 18 NE at 150.
143. Scheppele, 30 Representations at 53 (cited in note 104).
144. Id.
145. Professor Scheppele suggests that a case like Riggs could have been distinguished from Avery on the grounds that "[djepriving people of property they already have in their possession [at issue in Avery] is a very different matter from restricting the ways in which they can come by property in the first place [at issue in Riggs]."
146. Id at 53-54. In that event, Judge Earl could have simply appealed in Riggs to "a quite straightforward view of legislative intent" since the "statute of wills was undoubtedly drafted against a background where the civil death fiction was assumed to be part of the existing law," and so there was no need to explicitly address the question of inheritance by convicted murderers
147. Id at 59-60. The distinction suggested by Professor Scheppele might well have been drawn, but it is far from obvious that it marks a relevant difference between the cases against the background of a repudiation of the principle that convicts forfeit their property rights One suspects that is why Judge Earl in Riggs opted for a different approach.
148. 22 NE 272 (NY 1889).
149. Id at 273.
150. See Warner v Fourth National Bank, 22 NE 172, 173 (NY 1889).
151. 22 NE 145 (NY 1889).
152. Id at 145.
153. 22 NE 938 (NY 1889).
154. Id at 939 (holding that the deceased's will was invalid because it suspended the absolute power of alienation required by state law).
155. See, for example, O'Brien v Home Benefit Society of New York, 22 NE 954, 955 (NY 1889) (setting aside the language of a contract without discussion based on common law doctrine and thus rejecting the defendant's defense of breach by the plaintiff);
156. People v Charbineau, 22 NE 271, 272 (NY 1889) (resolving the case on a literal reading of the relevant statute without attempting to justify his interpretive method).
157. On the other hand, in Wood v Mitchell, 22 NE 1125 (NY 1889), Judge Earl's rather brief opinion did appeal to the idea that "[i]t may also be supposed that it was the purpose of the legislature" in interpreting a statute.
158. Id at 1126 (relying on a literal reading of the text as well as hypothetical legislative intent to find the case to be an easy one).
159. 22 NE 670 (NY 1889).
160. Id at 674-675
161. See Lochner v New York, 198 US 45, 53 (1905).
162. See, for example, West Coast Hotel Co v Parrish, 300 US 379, 396-397 (1937).
163. 198 US 45 (1905).
164. Id at 53-55.
165. Budd, 22 NE at 680-681 (Gray dissenting).
166. See John Stuart Mill, On Liberty 13 (Bobbs-Merrill 1956): [The Harm Principle] is that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.
167. 22 NE 169 (NY 1889).
168. id at 169 (finding the defendant guilty of engaging in adultery with a prostitute based on the testimony of the prostitute).
169. Id at 169-170
170. Perhaps there is a final way for Dworkin to redeem his preferred account against the Realist explanation of the decision. For could not Dworkin argue that the moral and political visions that animate Judges Gray and Earl are really just the touchstones for their conflicting constructive interpretations of the law in Riggs? In other words the correct reconstruction of their differing approaches to statutory interpretation in Riggs is that each judge is relying on a principle that he judges to be the morally best of those that have some dimension of fit with prior decisions-where the determination of which is morally best grows out of the moral and political visions that the purportedly Realist interpretation of their behavior makes explicit. This is an intriguing, though I fear ultimately fanciful, proposal. Most obviously, there is not even the pretense in Riggs that the argument is explicitly motivated by competing moral principles a significant problem for a theorist emphasizing the Face Value of the disagreement. More importantly, though, it is unclear how Judge Earl's moralistic prudery translates into a principled argument against inheritance by felons. Equally importantly, we would need some evidence that the moral and political visions evidenced in the cases noted in the text are actually operating across a range of cases in a way that could be described as "constructive interpretation" in the Dworkinian sense. Finally, even if we could reconstruct the evidence adduced by the Realist in support of a Dworkinian account of the behavior of the judges in Riggs and other cases, we would still have to show that the explanatory power of that account is such that it warrants including within the class of valid legal norms moral and political principles that lack any recognizable pedigree in authoritative sources In any case, let this footnote stand as a challenge to Dworkin's remaining defenders to offer an account that meets the explanatory burden.
171. Dworkin, Law's Empire at 39 (cited in note 3).
172. Recall that Dworkin describes Law's Empire as being "about theoretical disagreement in law. It aims to understand what kind of disagreement this is and then to construct and defend a particular theory about the proper grounds of law."
173. Id at 11.
174. On the positivist account, legal professionals agree about what the law requires so often because, in a functioning legal system, what the law b is fixed by a discernible practice of officials who decide questions of legal validity by reference to criteria of legal validity on which they recognizably converge.
175. See text accompanying notes 59-60.
176. Dworkin would be forced to appeal to epistemic considerations to explain why there is this massive agreement, notwithstanding the strange metaphysics of the situation (that is that what the law is might be unknown by all existing jurists and lawyers). Dworkin's theory has of course, long depended on this distinction. But Dworkin has never given an explanation for why the epistemic constraints under which jurists and lawyers operate should lead to massive convergence.
177. Dworkin, Law's Empire at 190 (cited in note 3).
178. Notice that even Dworkin's "interpretivist" reading of theoretical disagreement goes far beyond the Face Value of the opinions even in Riggs.