Wednesday, March 26, 2008

"In Praise of Realism (and Against 'Nonsense' Jurisprudence)"

I've posted on SSRN a draft of my Dunbar Lecture in Law and Philosophy, titled as above, which I will deliver tomorrow at the University of Mississippi.  The Lecture is sponsored by the Law School and Department of Philosophy.  When they kindly invited me to deliver the lecture, I was told that past Dunbar Lecturers had included Richard Epstein, Stanley Fish and, as it happens, one of the subjects of my Lecture, Ronald Dworkin.  The abstract follows:

Ronald Dworkin describes an approach to how courts should decide cases that he associates with Judge Richard Posner as a Chicago School of "anti-theoretical, no-nonsense jurisprudence." Since Professor Dworkin takes his own view of adjudication to be diametrically opposed to that of the Chicago School, it might seem fair, then, to describe Dworkin's own theory as an instance of "pro-theoretical, nonsense jurisprudence." That characterization is not one, needless to say, that Professor Dworkin welcomes. Dworkin describes his preferred approach to jurisprudential questions, to be sure, as theoretical, in opposition to what he calls the practical orientation of the Chicago School. But while there is a real dispute between Dworkin and Posner, it is not one illuminated by the contrast between theory and practice. It is, rather a dispute about the kind of theory that is relevant and illuminating when it comes to law and adjudication. And the fault line marked by this dispute is profound indeed, one that extends far beyond Dworkin and Posner and has a venerable and ancient history. I shall describe it, instead, as a dispute between Moralists and Realists, between those whose starting point is a theory of how things (morally) ought to be versus those who begin with a theory of how things really are. The Lecture endeavors to show that our contemporaries, Ronald Dworkin and Richard Posner, are reenacting a version of the dispute between the paradigmatic philosophical moralist Plato and the paradigmatic historical realist Thucydides.

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