February 18, 2013
Dworkin-Lite and Constitutional Theory
Cass Sunstein (Harvard) gives a nice re-statement of those aspects of Dworkin's views that made him such an appealing figure in modern constitutional theory. Sunstein writes:
Consider a question about which people fiercely disagree: Does the U.S. Constitution require states to recognize same-sex marriages? In answering that question, judges have to deal with many precedents. For example, the Supreme Court has ruled that states can’t criminalize sexual acts between people of the same sex. The court has also forbidden states from banning racial intermarriages. At the same time, the court allows states to forbid polygamous marriages.
In resolving the same-sex marriage dispute, how can judges deal with such precedents? Here Dworkin introduced an arresting metaphor. Suppose that you are a participant in writing a chain novel. Others have written earlier chapters. Now it’s your turn. How shall you proceed?
Dworkin’s answer is that you have to engage in an act of interpretation. You can’t disregard what has come before. If your predecessors have started to write a romance, you can’t suddenly turn it into a work of science fiction without doing violence to what they have done. You owe a duty of fidelity to their work.
But your task is not mechanical. You have to fit the existing materials, and you have to justify them, by writing a new chapter that makes the emerging novel, taken as a whole, the best it can be.
Dworkin thinks that judging is a lot like that. Precedents are like the existing chapters, and a new case is an opportunity to produce a fresh one. Judges can’t just make the law up. But at least in hard cases, they can’t merely “follow the law,”because there isn’t anything to “follow.” What they have to do is produce a principle that both fits and justifies the existing legal materials. This is Dworkin’s conception of law as integrity.
This does, indeed, seem like one sensible recommendation about how judges should proceed when the law leaves a question unsettled (such that there is no law to follow), and nothing in the theory of law known as legal positivism actually takes issue with such a recommendation. But this isn't quite Dworkin's conception of law as integrity, and it elides the quite radical character of his views about the nature of law.
According to Dworkin, what the law is (not simply what a court should do in a hard case, but what the law in any given jurisdiction really is) is whatever follows from the best constructive interpretation (in roughly the fit-justification sense glossed by Sunstein) of the institutional history of the legal system, i.e., the prior legislative enactments, court decisions, and so on. That means, among other thing, that some prior legislative enactments and prior court decisions might not really express the law, since they might not follow from the best constructive interpretation of the system. Indeed, it means that no one may actually know what the real law is in the United States, or in any other jurisdiction, since no one may have yet figured out the best justification for the institutional history of the legal system. A theory of law that entails that no one might actually know what the law is faces a serious, shall we say, reductio ad absurdum problem.
The trademark Dworkinian move in his decades-long battle with legal positivism was always to run together questions about what the law is (on which he and positivists had opposing views) with the question how should courts decide cases (where positivists could often agree with Dworkin). Here's how I put it in reviewing his Justice in Robes a few years ago:
Dworkin organizes his reply [to Hart's criticisms of Dworkin in the "Postscript" to The Concept of Law]around a hypothetical case involving "Mrs. Sorenson", who has been injured by a defective drug whose precise manufacturer she cannot identify because many companies produced the same product. Common-law courts responded to this kind of problem by inventing a new doctrine, "market-share liability," requiring manufacturers to pay damages for harm based on their "market share" of the dangerous product without requiring individualized proof by the plaintiff that defendant’s version of the product caused the injuries in question. Dworkin thinks Mrs. Sorenson was legally entitled to this remedy even before clever judges crafted the new rule, and—more to the point here—he thinks Hart was committed to denying Mrs. Sorenson was entitled to such a remedy, since the existing legal authorities did not explicitly establish it. "Hart and I hold opposite opinions about the same issue", says Dworkin.
But this is false, if the issue is, as it appears to be, the remedy that ought to be awarded Mrs. Sorenson. For Dworkin runs together the question "What is the law in this jurisdiction?" with the question "How ought a particular case be decided?" Positivists have always been clear that a judge’s legal duty to apply valid law can be overridden by moral or equitable considerations in any particular case, and Hart’s general theory ("the sources thesis") that "laws" are distinguished by their source—by their being enacted, for example, by a legislative body or figuring in the holding of a court—is simply silent on how the wronged Mrs. Sorenson should be treated. On Dworkin’s [theory], however, it seems every moral wrong must have a preordained legal remedy—even though no one knew the law required it!— so that forward-looking jurists who craft new legal rules in response to real-world problems are really only "discovering" a legal remedy that already existed in Dworkinian Heaven.
Sunstein's Dworkin--who is, I think, the Dworkin that has been influential in constitutional theory--is Dworkin-lite, though I intend nothing pejorative by that (think "coca cola lite"--still quite good, but not the "real thing"). It's not quite the real Dworkin, since it obscures from view the counter-intuitive commitments of his conception of the nature of law. But it is the bit of Dworkin that seems most appealing, and helps make sense of one way in which constitutional lawyers and theorists argue.
ADDENDUM: This obituary from The Telegraph is indicative of how Dworkin's own misreadings have influenced the reception of legal positivism; the obituary states: "Hart held that the law is a set of rules based on customs and institutions and that legal deliberation need not take account of considerations of morality or fairness – the province of the legislature." Hart held something like the first bit, but never wrote anything that even suggests "that legal deliberation need not take account of considerations of morality or fairness," let alone that those were "the province of the legislature." It's really quite extraordinary that such basic features of Hart's views should be so consistently misrepresented, and I fear some of the blame for that does go to Dworkin.
ANOTHER: Is Dworkin "the most important" legal philosopher of the last century, as Professor Sunstein suggests he might be? I think the comments of John Gardner, who succeeded Dworkin as the Professor of Jurisprudence at Oxford, are closer to the mark: "There are several contenders for the title of greatest philosopher of law of the late twentieth century. But nobody rivals Ronald Dworkin for the titles of most innovative and most provocative." I assume Professor Gardner, in referring to the "late twentieth century," is also thinking of Joseph Raz and John Finnis. If we take the long view of the whole last century, and in a global rather than American perspective, I think it would be hard to find any legal philosophers who rival H.L.A. Hart or Hans Kelsen for the depth and breadth of their jurisprudential corpus and influence.
February 06, 2013
"Legal Realisms, Old and New"The final version (pending copy-editing), which was given as the 2012 Seegers Lecture in Jurisprudence this past fall at Valparaiso, and which will appear in their law review later this year.
January 21, 2013
"Why Tolerate Religion" on the radio in ChicagoHere (hit "click play" at the center top if you'd like to listen).
December 13, 2012
H.L.A. Hart Interviewed
Hart, along with Hans Kelsen, was one of the two great figures in legal philosophy of the past century. This wide-ranging interview a few years before his death covers the personal, professional, and intellectual. The quality of the audio is uneven, and a transcript is forthcoming. OUP has released the audio to mark the publication of the Third Edition of The Concept of Law, which includes a new, very useful introduction by Leslie Green and new notes, also prepared by Green, identifying the key literature since Hart discussing the issues he raises.
The part of the interview concerning Ronald Dworkin is particularly revealing, and consistent with what I've noted before about Dworkin's reputation among legal philosophers. Asked to comment on Dworkin, Hart describes his criticisms of legal positivism as "really very mistaken" and says Dworkin "goes over the board," but adds that he is a "marvelously gifted expositor...on his feet," knows more logic than Hart does, and has "wonderful writing" on American constitutional law in The New York Review of Books. This is a nice example of what Paul Grice dubbed conversational implicature, in which we infer meaning not from what the speaker explicitly said, but from what the speaker chose to say in the context. (In Grice's example, a letter of recommendation for an academic job candidate that says only that, "Mr. Smith has a beautiful handwriting and is neatly dressed" implies that Mr. Smith is a poor candidate, since a letter for an academic job candidate should mention the relevant, positive features of the candidate, if he has any!)
December 06, 2012
John Gray on "Why Tolerate Religion?" in The New Statesman
I'm sure my pal Todd Zywicki will be posting this review of my book by the British political theorist John Gray soon on his blog, but just in case, here it is; an excerpt: “A model of clarity and rigour and at points strikingly original, this is a book that anyone who thinks seriously about religion, ethics and politics will benefit from reading.” Gray makes one error in his discussion of my characterization of religion, which is that the characteristics identified are conjunctive; I quite agree with the points he makes about them considered individually.
UPDATE: Here's my talk on the book from the Carnegie Council in New York.
November 26, 2012
Todd Zywicki is obviously still smarting...
...from being whacked last Spring. How else to explain why he would post a link to a not very substantive, but critical, review of my book from an obscure blog? I guess he thinks it harms me! (If so, I guess my re-linking it is a failure of prudence on my part!)
The review itself elicits a pretty good response in the first comment from another libertarian reader of the website, who concludes, "Leiter’s book is one that is worthy of a real response. A review of his book, especially in a high quality site like this one, should be written by somebody with the professional and intellectual competence to do this." I can agree with all that! The reviewer, Mr. Anderson, is, for the record, co-author of a rather notoriously silly (Thomist-inspired) paper on the metaphysics of marriage, that I noted on my philosophy blog here in 2011. (It's a special feature of this kind of silly metaphysics that you can perform it on artifacts!)
For those actually interested in Thomism, pages 86-91 of my book are given over to the Thomist argument for the specialness of "religion." I rely on John Finnis's version of those arguments, viewing him, correctly, as a serious representative of the position. I argue that his argument's aren't very persuasive or sound. What the reviewer's counter-arguments are to my position remains, as of this writing, top secret.
(As if to prove the old adage, "There's no such thing as bad publicity," since Zywicki linked the review, the book went from a rank of around 250,000 on Amazon to the top 50,000.)
ADDENDUM: For those interested, there has been some adult discussion of themes from the book at the Talking Philosophy blog.
October 29, 2012
"The Methodology of Legal Philosophy"A draft of a new essay by Alex Langlinais (a philosophy grad student here at Chicago) and myself, to appear in the Oxford Handbook of Philosophical Methodology, being edited by Cappelen, Gendler, and Hawthorne. Comments welcome.
October 21, 2012
The Persistence of Fuller-Inspired Confusions about Legal PositivismIt is surprising, to those of us specializing in jurisprudence, how much staying power Lon Fuller's confusions have. This paper by Michael Sevel (Sydney) is a useful corrective.
October 17, 2012
Why Tolerate Religion?
The book is finally out. Thanks to all those who had expressed interest in the project.