THE UNIVERSITY OF TEXAS SCHOOL OF LAW

Public Law & Legal Theory Working Paper No. 70September 2004

The End of Empire:Dworkin and Jurisprudence in the 21st Century

Brian Leiter

The University of Texas School of Law

This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection:

http://ssrn.com/abstract=598265 An index to the working papers in

The University of Texas School of Law Working Paper Series is located at: http://www.utexas.edu/law/

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Forthcoming in a special issue of the Rutgers Law Journal (2005)

THE END OF EMPIRE:

DWORKIN AND JURISPRUDENCE IN THE 21ST CENTURY

Brian Leiter*

On the happy occasion of the establishment of the Rutgers Institute for Law and

Philosophy—happy not only for the faculty and students of Rutgers University, but also

for the field of jurisprudence more generally—it seems appropriate to take stock of the

field of law and philosophy over the past quarter-century, to see where the field has been,

where it is going, and what it is now time to leave behind. On the latter score, I shall

focus, in particular, on the well-known and distinctive jurisprudential contributions of

Ronald Dworkin—especially as crystallized in his 1986 book Law’s Empire—which are

now, I fear, a prime candidate for views the field has outgrown. This may seem a

surprising suggestion to many outside the field of legal philosophy, but, as I shall

suggest, it is increasingly the sotto voce—and sometimes manifest—consensus within.

The New York University School of Law web page describes Ronald Dworkin as

"probably the most influential figure in contemporary Anglo-American legal theory” and

says “Dworkin is probably one of the two or three contemporary authors whom legal

* Joseph D. Jamail Centennial Chair in Law, Professor of Philosophy, and Director of the Law &

Philosophy Program, University of Texas at Austin; Visiting Professor of Philosophy, University College London. This is a slightly revised version of an address presented on May 24, 2004 on the occasion of the inaugural dinner to celebrate the creation of the Institute for Law and Philosophy at Rutgers University. I am grateful to Les Green for helpful comments on an earlier draft, to Dennis Patterson for the invitation to deliver the lecture, to Matthew Kramer and Mark Murphy for some corrections, and to members of the audience at the Rutgers dinner for laughing at the right points and for their consensus view that this was “ninety percent right.”

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scholars will be reading 200 years from now.” Both statements are, I shall suggest, rather

hyperbolic, at least with respect to Dworkin the legal philosopher (I offer no assessment

of the importance or long-term impact of his writings on equality1). Notwithstanding the

majestic sweep and ambition of his jurisprudential corpus, my conclusion—which I’ve

come to only gradually over the last decade of reading, writing, talking and teaching

about problems in legal philosophy—is that in legal philosophy, Dworkin now deserves

to go the way of Skinner in psychology or Derrida in literary theory, that is, the way of

figures whose work, at one time, was a stimulus to new research, but who, in the end,

led—or, in Dworkin’s case, tried to lead—their field down a deeply wrong-headed path.

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.

Given the limited amount of time I have today—not to mention the amount of

alcohol my audience has already consumed—I’m going to support this polemical thesis

with just two kinds of considerations. First, in most of the areas that have made law and

philosophy an intellectually vibrant area in recent decades, Dworkin’s work has been

largely irrelevant. Second, in the areas where Dworkin has had an impact—namely, the

development of his own theory of law and adjudication—his views are, I am afraid,

implausible, badly argued for, and largely without philosophical merit. The first point

shall be easier to establish this evening than the second, needless to say. I take them up

in turn.

1 See, e.g., RONALD DWORKIN, SOVEREIGN VIRTUE (2000).

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Let us begin with a short—and not, I think, especially contentious—list of the

major developments in the field of law and philosophy over the past generation:

First, there is the development well-represented by this inaugural conference,

namely, the expansion of criminal law theory beyond the traditional questions about the

justification of punishment and the “limits” of the criminal law (that is, what behavior is

properly criminalized?) to an intense focus on the conceptual logic and moral

underpinnings of criminal law doctrines: the nature of intentions and acts, the distinction

between justification and excuse, the logic of the particular excuses (duress, insanity, and

so on), as well as the nature of attempts, omissions, and specific crimes like rape. In the

work of theorists such as Larry Alexander, Mitchell Berman, George Fletcher, John

Gardner, Kent Greenawalt, Michael Moore, Stephen Morse, and Paul Robinson the

substance of the criminal law itself has been subjected to unparalleled theoretical and

philosophical probing.2 At the same time, even the older questions about punishment and

the moral limits of the criminal law have received important new treatments by many of

these same authors--as well as by, most importantly, Joel Feinberg, but also by John

2 See, e.g., Larry Alexander, Reconsidering the Relationship Among Voluntary Acts, Strict

Liability, and Negligence in Criminal Law, 7 SOC. PHIL. & POL. 84 (1990); Larry Alexander, Inculpatory and Exculpatory Mistakes and the Fact/Law Distinction, 12 LAW & PHIL. 33 (1993); Larry Alexander, Self-Justification, Justification, and Excuse, 22 PHIL. & PUB. AFF. 53 (1993); Larry Alexander, Insufficient Concern: A Unified Conception of Criminal Culpability, 88 CAL. L. REV. 931 (2000); Mitchell N. Berman, The Evidentiary Theory of Blackmail: Taking Motives Seriously, 65 U. CHI. L. REV. 795 (1998); Mitchell N. Berman, Justification and Excuse, Law and Morality, 53 DUKE L.J. 1 (2003); GEORGE FLETCHER, RETHINKING CRIMINAL LAW (1978); John Gardner, The Gist of Excuses, 1 BUFF. CRIM. L.J. 575 (1997); John Gardner & Stephen Shute, The Wrongness of Rape, in OXFORD ESSAYS IN JURISPRUDENCE, FOURTH SERIES (Jeremy Horder ed. 2000); Kent Greenawalt, The Perplexing Borders of Justification and Excuse, 84 COLUM. L. REV. 1897 (1984); MICHAEL S. MOORE, ACT AND CRIME (1993); MICHAEL S. MOORE, PLACING BLAME: A THEORY OF CRIMINAL LAW (1997); Stephen J. Morse, Excusing the Crazy: The Insanity Defense Reconsidered, 58 S. CAL. L. REV. 777 (1985); Stephen J. Morse, Culpability and Control, 142 U. PA. L. REV. 1587 (1994); PAUL H. ROBINSON, STRUCTURE AND FUNCTION IN CRIMINAL LAW (1997).

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Deigh, David Dolinko, Antony Duff, Jean Hampton, Douglas Husak, Nicola Lacey,

Andrew von Hirsch, and many others.3

Second, the growth of serious philosophical work on the conceptual and moral

foundations of private law over the past two decades has been extraordinary, and has

perhaps been most responsible, along with criminal law theory, for bringing philosophy

in to the core of the law school curriculum. We see this development in the work of

philosophers and philosophically-minded legal scholars like Jules Coleman, Richard

Craswell, Charles Fried, Heidi Hurd, Stephen Munzer, Stephen Perry, Arthur Ripstein,

T.M. Scanlon, Jane Stapleton, Jeremy Waldron, Richard Wright, and Benjamin Zipursky,

to name only a few of the most prominent contributors to this literature.4

Third, the fundamental, but most abstract, philosophical questions about law—the

kinds of questions at the core of the work of Hans Kelsen and H.L.A. Hart, the two

dominant figures in twentieth-century legal philosophy—have benefitted from the

3 See esp. JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW, 4 vols. (1984-

1988). See also, John Deigh, On the Right to be Punished: Some Doubts, 94 ETHICS 191 (1984); David Dolinko, Some Thoughts about Retributivism, 101 ETHICS 537 (1991); David Dolinko, Three Mistakes about Retributivism, 39 UCLA L. REV. 1623 (1992); R.A. DUFF, TRIALS AND PUNISHMENTS (1986); Jean Hampton, The Moral Education Theory of Punishment, 13 PHIL. & PUB. AFF. 208 (1984); Douglas N. Husak, Why Punish the Deserving? 26 NOUS 447 (1992); NICOLA LACEY, STATE PUNISHMENT: POLITICAL PRINCIPLES AND COMMUNITY VALUES (1988); Nicola Lacey, Penal Theory and Penal Practice: A Communitarian Approach, in THE USE OF PUNISHMENT (S. McConville ed., 2003); ANDREW VON HIRSCH, CENSURE AND SANCTIONS (1993).

4 See, e.g., JULES L. COLEMAN, RISK AND WRONGS (1992); Richard Craswell, Contract Law, Default Rules, and the Philosophy of Promising, 88 MICH. L. REV. 395 (1989); CHARLES FRIED, CONTRACT AS PROMISE (1981); Heidi Hurd, Nonreciprocal Risk Imposition, Unjust Enrichment, and the Foundations of Tort Law, 78 NOTRE DAME L. REV. 711 (2003); STEPHEN R. MUNZER, A THEORY OF PROPERTY (1990); Stephen R. Perry, The Moral Foundations of Tort Law, 77 IOWA L. REV. 494 (1992); Stephen R. Perry, Responsibility for Outcomes and the Law of Torts, in PHILOSOPHY AND TORT LAW (Gerald Postema ed., 2001); ARTHUR RIPSTEIN, EQUALITY, RESPONSIBILITY, AND THE LAW (1999); T.M. Scanlon, Promises and Contracts, in THE THEORY OF CONTRACT LAW (Peter Benston ed., 2001); Jane Stapleton, Law, Causation, and Common Sense, 8 OX. J. LEG. ST. 111 (1988); Jane Stapleton, Legal Cause: Cause-in-Fact and the Scope of Liability for Consequences, 54 VAND. L. REV. 941 (2001); JEREMY WALDRON, THE RIGHT TO PRIVATE PROPERTY (1988); Richard Wright, Causation in Tort Law, 73 CAL. L. REV. 1735 (1985); Benjamin Zipursky, Rights, Wrongs and Recourse in the Law of Torts, 51 VAND. L. REV. 1 (1998); John C.P. Goldberg & Benjamin Zipursky, The Moral of MacPherson, 146 U. PA. L. REV. 1733 (1998).

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systematic analysis and refinement of central concepts that were previously under-

theorized, concepts like “authority,” “reasons,” “rules,” and “conventions.” In the hands

of theorists such as John Gardner, Leslie Green, Gerald Postema, Joseph Raz, Frederick

Schauer, and Scott Shapiro, these concepts have taken center stage in jurisprudential

debate in recent decades.5

Fourth, over the last quarter-century, we have seen a revival of philosophically

substantial versions of natural law theory, versions that can stand apart from the

theological premises that have rendered much of the historical tradition irrelevant in the

post-Enlightenment world. In the work of natural law theorists like David Brink, John

Finnis, Michael Moore, and Mark Murphy, important aspects of the tradition of Aquinas

find a place at the jurisprudential table.6

Fifth, while moral and political theory was the primary, indeed exclusive, point of

reference for jurisprudential writers of the 1960s and 70s, the last quarter-century has

seen philosophy of language, metaphysics, and epistemology (three fields in which

Rutgers, as it happens, is the world leader) emerge as the primary vehicles for

philosophical insight in to the familiar questions about the nature of law and legal

5 See, e.g., John Gardner, Legal Positivism: 5 ½ Myths, 46 AM. J. OF JURIS. 1999 (2001); John

Gardner and Timothy Macklem, Reasons, in THE OXFORD HANDBOOK OF JURISPRUDENCE AND LEGAL PHILOSOPHY (Jules Coleman & Scott Shapiro eds., 2002); LESLIE GREEN, THE AUTHORITY OF THE STATE (1988); Leslie Green, The Concept of Law Revisited, 94 MICH. L. REV. 1687 (1996); Leslie Green, Positivism and Conventionalism, 12 CAN. J. L. & JUR. 35 (1999); Gerald Postema, Coordination and Convention at the Foundations of Law, 11 J. LEG. ST. 165 (1982); JOSEPH RAZ, THE AUTHORITY OF LAW (1979); Joseph Raz, Authority, Law, and Morality, 68 THE MONIST 295 (1985); FREDERICK SCHAUER, PLAYING BY THE RULES (1991); Scott Shapiro, On Hart’s Way Out, 4 LEGAL THEORY 469 (1998).

6 See, e.g., David O. Brink, Legal Theory, Legal Interpretation, and Judicial Review, 17 PHIL. & PUB. AFF. 105 (1988); David O. Brink, Legal Interpretation, Objectivity, and Morality, in OBJECTIVITY IN LAW AND MORALS (Brian Leiter ed., 2001); JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS (1980); Michael S. Moore, A Natural Law Theory of Interpretation, 58 S. CAL. L. REV. 277 (1985); MARK C. MURPHY, NATURAL LAW AND PRACTICAL RATIONALITY (2001); Mark C. Murphy, Natural Law Jurisprudence, 9 LEGAL THEORY 241 (2003).

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reasoning, the relationship between law and morality, and the philosophical foundations

of various substantive areas of law (criminal law and evidence, most notably). This

development has been manifest in my own work on a variety of topics--from the

objectivity of law, to the jurisprudence of American Legal Realism, to the social

epistemology of evidence law7—and has been equally important in the writings on law

and legal philosophy of Timothy Endicott, Alvin Goldman, Larry Laudan, Andrei

Marmor, Michael Moore, Dennis Patterson, and Nicos Stavropoulos, among others.8

What can not fail to strike any informed observer of the field is that in none of

these five major developments in law-and-philosophy scholarship over the past quarter-

century has Dworkin’s work played a significant role. In the two cases where it has

played a minor role, it has been as a foil (for example, for natural law theorists9 or for

those writing on objectivity in law10 or on vagueness11) or as a background source of

inspiration (for example, in Stavropoulos’s work12). To return, then, to the NYU web

page hyperbole, we can say this: on the evidence of the developments that have made

7 See, e.g., Brian Leiter, Law and Objectivity, in THE OXFORD HANDBOOK OF

JURISPRUDENCE AND PHILOSOPHY OF LAW, supra n. 5; Brian Leiter, Rethinking Legal Realism: Toward a Naturalized Jurisprudence, 76 TEX. L. REV. 267 (1997); Brian Leiter, Prospects and Problems for the Social Epistemology of Evidence Law, 29 PHIL. TOPICS 319 (2001).

8 See, e.g., TIMOTHY ENDICOTT, VAGUENESS IN LAW (2000); ALVIN I. GOLDMAN, KNOWLEDGE IN A SOCIAL WORLD 272-314 (1999); Larry Laudan, Is Reasonable Doubt Reasonable?, 9 LEGAL THEORY 295 (2003); ANDREI MARMOR, INTERPRETATION AND LEGAL THEORY (1992); MICHAEL S. MOORE, OBJECTIVITY IN ETHICS AND LAW (2004); DENNIS PATTERSON, LAW AND TRUTH (1996); NICOS STAVROPOULOS, OBJECTIVITY IN LAW (1996).

9 So, e.g., Mark Murphy, in his recent important “state of the art” essay on Natural Law Jurisprudence, 9 LEGAL THEORY 241 (2003) mentions Dworkin just once at the start, noting that, “While it is not entirely misleading to describe” Dworkin as a natural law theorist, “it is hard to square the notion…with Dworkin’s limited theoretical ambitions, that is, to provide an account of our practice of law….A parochial natural law theory is no natural law theory at all.” Id. at 241 and 241 n. 2.

10 See, e.g., Brian Leiter, Objectivity, Morality and Adjudication, in OBJECTIVITY IN LAW AND MORALS 66 (Brian Leiter ed., 2001); Michael S. Moore, Metaphysics, Epistemology, and Legal Theory, 60 S. CAL. L. REV. 453 (1987).

11 See, e.g., ENDICOTT, supra n. __ at 63-72. 12 See, e.g., STAVROPOULOS, supra n. __.

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law and philosophy an exciting, active, and important field over the last twenty-five

years, it would reflect only palpable ignorance to describe Dworkin as “the most

influential figure.” He is, in fact, almost entirely absent.

Now it might be objected that I’ve omitted two lively topics of discussion in legal

philosophy in which it appears Dworkin has been a more important presence. First, and

most obviously, one might point to the so-called “Hart/Dworkin debate,” the debate

whose starting point is Dworkin’s 1967 critique of Hart’s 1961 book The Concept of

Law. Second, one might also note the more recent “methodology” debate in

jurisprudence, the debate about whether a theory of law can be a purely “descriptive”

theory, or whether it must necessarily ask about the moral merits of particular kinds of

laws and legal systems in order to have a satisfactory theoretical account of its subject

matter. Since I have dealt with both debates in greater argumentative detail elsewhere,13

I will only report, conclusorily, my understanding of the “state of play” in these debates

here.

On the first: the Hart/Dworkin debate, so vibrant in the 1970s and early 1980s,14

is long over, and it is uncontroversial (outside, perhaps, the small coterie of Dworkin’s

former students) that Dworkin “lost,” as it were, on the central issues about positivism’s

ability to account for legally binding principles and about Hart’s doctrine of judicial

discretion.15 In many cases, Dworkin simply got Hart wrong, and in other cases,

13 Brian Leiter, Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence,

48 Am. J. Juris. 17 (2003). 14 One thinks of seminal papers by Rolf Sartorious, Joseph Raz, David Lyons, Philip Soper, and

Jules Coleman, among others—many of which are usefully collected in RONALD DWORKIN AND CONTEMPORARY JURISPRUDENCE (Marshall Cohen ed., 1983).

15 See Leiter, supra n. 13 at 19-24.

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positivists produced compelling rejoinders.16 It is striking that in the posthumously

published “Postscript” to The Concept of Law, Hart fairly complains in more than a

dozen places that Dworkin misstated Hart’s views. Indeed, Hart begins the “Postscript”

by referring to a (never completed) “second section” where he planned to respond to

critics other than Dworkin. About these other critics, Hart writes: “Here I have to admit

that in more instances than I care to contemplate my critics have been right…” (emphasis

added).17 On only one point does Hart credit Dworkin with similar insight: namely, in a

1972 paper arguing against the original version of Hart’s “practice theory of rules,”

Dworkin demonstrated quite persuasively that Hart was mistaken to claim that the

existence of a duty always requires the existence of what Hart called a “social rule,” that

is, a practice of convergent behavior in which those engaged in the behavior accept a rule

describing their conduct as a standard to which they felt bound to adhere.

Now to be fair, Dworkin’s criticisms of Hart, even the mistaken ones, were

undoubtedly an important stimulus to the development of legal positivism over the past

thirty years—for example, the debate between soft/inclusive and hard/exclusive

16 In a forthcoming paper (to appear in THE CAMBRIDGE COMPANION TO DWORKIN [A.

Ripstein ed.]), Scott Shapiro makes the surprising suggestion that there is another Dworkinian challenge positivists have ignored, namely, Dworkin’s challenge to positivists to account for disputes about the grounds of law (i.e., the criteria of legal validity). Yet as Shapiro notes, positivists in fact have offered two replies to this (rather marginal) phenomenon: namely, that disputes about the grounds of law are either incoherent or disingenuous. They are incoherent (or confused) insofar as the grounds of law are exhausted by the conventional practice constituting the rule of recognition; they are disingenous insofar as disputants about the grounds of law are trying to disguise their law-making (as, e.g., judges often do). The first possibility—incoherence or confusion—presents a somewhat different theoretical issue than the second. In the second case, it is easy enough to say that we should not be misled by superficial appearances: everyone knows that those who want to prescribe an outcome in law will prefer to claim that they are compelled to reach that outcome by the existing law. In the first case, we need some additional reason to prefer the “confusion” explanation to the face-value explanation. That reason, for positivists, would, of course, be the general explanatory and descriptive fruitfulness of their theory of law. Since Dworkin’s theory, which would favor the face-value explanation, is itself explanatorily unfruitful and extravagant—as I’ll discuss below—there is no reason to prefer his account of the marginal phenomenon of disputes about the grounds of law.

17 H.L.A. HART, THE CONCEPT OF LAW 239 (2nd ed. 1994)..

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positivism clearly arose out of Dworkin’s challenge to Hart to account for non-pedigreed

principles that judges sometimes talk about as if they were legally binding.18 As long as

Hart and legal positivism are topics of study, there can be little doubt that Dworkin will

remain a figure of interest for intellectual historians wanting to understand the

development of positivist theories of law.

On the second point I can be even briefer: the primary stimulus for the recent

“methodology” debate in legal philosophy has been the work of Stephen Perry,19 not

Dworkin, and while Perry gestures at Dworkin’s influence, it is clear—indeed, even

acknowledged by Perry himself20—that the primary intellectual force behind this debate

is Chapter 1 of John Finnis’s Natural Law and Natural Rights, to which Dworkin himself

is also clearly indebted.

So although Dworkin has not been a major figure in any of the five significant

developments in legal philosophy noted at the beginning—or even in the more recent

methodology debate—he has, indisputably, been a very active presence in one area:

namely, the systematic development of his own view of law and of adjudication. This

enterprise begins with his early critiques of Hart in the late 1960s and early 1970s,

continues with the 1975 paper “Hard Cases”21 and then largely concludes with the 1986

book Law’s Empire,22 though he has offered some emendations and clarifications in a

18 See Leiter, supra n. 13 at 24 ff.. Oddly, once the debate began, Dworkin contributed nothing to

it, and, instead, began resorting to ad hominem attacks on those who disagreed with his view—see the discussion, below.

19 See Stephen R. Perry, Interpretation and Methodology in Legal Theory, in LAW AND INTERPRETATION (A. Marmor ed., 1995); Stephen R. Perry, Hart’s Methodological Positivism, in HART’S POSTSCRIPT (Jules Coleman ed., 2001).

20 See id. at 313: “My thinking about methodology in legal theory has greatly benefited from Finnis’s general discussion of this topic, and in particular from his illuminating critique of Hart.”

21 Reprinted in RONALD DWORKIN, TAKING RIGHTS SERIOUSLY (1977). 22 (1986).

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handful of articles since. So what is the status of these “positive” contributions to legal

philosophy? Here is a brief and, admittedly, slightly polemical (only slightly) summary:

(1) At one time, Dworkin maintained that a theory of law and adjudication had to

attend to two kinds of legal standards, “rules” and “principles,” standards distinguished

by the logic of their application in legal disputes.23 Dworkin gave up this distinction

(after others showed it to be unstable24), and thus, in effect, gave up one of the key

foundations of his attack on Hart’s doctrine of judicial discretion.

(2) At one time, Dworkin maintained the importance of distinguishing between

“policies” and “principles,” since, he claimed, it was the actual practice of judges to

eschew policy arguments in favor of principled (i.e., rights-based) arguments.25 After

Neil MacCormick’s seminal Legal Reasoning and Legal Theory and John Bell’s Policy

Arguments in Judicial Decisions,26 Dworkin quietly abandoned this wildly implausible

claim. Overt policy decisions are simply everywhere in the cases.27

(3) Dworkin says a theory of law “must explain how what it takes to be law

provides a general justification for the exercise of coercive power by the state,”28 and

presents this theory as a challenge to Hart’s. Yet Hart never claimed that this was the

concept of law he was trying to explain, and Dworkin never shows that our concept of

law is really such that a norm’s being legally valid thereby “provides a general

23 The Model of Rules I in DWORKIN, supra n. 21 at 22-28. 24 See Joseph Raz, Legal Principles and the Limits of Law, reprinted in RONALD DWORKIN

AND CONTEMPORARY JURISPRUDENCE, supra n. __. 25 Dworkin, supra n. 23. 26 NEIL MACCORMICK, LEGAL REASONING AND LEGAL THEORY (1978); JOHN BELL,

POLICY ARGUMENTS IN JUDICIAL DECISIONS (1983) 27 I owe this point to Les Green. 28 DWORKIN, supra n. 22 at 190.

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justification for the exercise of coercive power by the state.”29 This has contributed to a

widely shared sense that the Hart/Dworkin debate, like the old Hart/Fuller debate, was a

case of ships passing in the night—though at least Hart, unlike Dworkin, realized clearly

that this is what had happened.30

(4) Dworkin argued in Law’s Empire that all interpretation is “constructive

interpretation,” that is, interpretation which aims to show the object interpreted in its

“best light.”31 This implausible thesis was subjected to withering criticisms by a diverse

group of philosophers interested in interpretation in the arts, literature, and law,32 and no

one in any hermeneutic area of philosophy has found plausible or adopted his approach to

interpretation. Twenty years after he advanced these ideas about interpretation, there are

no Dworkinians working in literary, artistic, or musical interpretation. Dworkin appears

to have abandoned his general thesis about the nature of interpretation, or, in any case,

stopped talking about it.

(5) Dworkin claims that all theories of law except his own fall prey to what he

calls “the semantic sting.” According to Dworkin, legal positivists purportedly think that

“we can argue sensibly with one another if, but only if, we all accept and follow the same

criteria for deciding when our claims are sound.”33 If legal positivists believed this, then

it would follow that they could not explain disagreement between lawyers about the

29 The peculiarity of Dworkin’s posture is simply compounded by the fact that his own theory of

“law as integrity” relies for its justification of coercive power on the theory of “associative obligations,” whose paradigm instance is the family: we take ourselves to have obligations to family members, notwithstanding the largely non-voluntary nature of that association. Yet this is an account fraught with problems when extended to law, problems now much-noted: see, e.g., Leslie Green, Law and Obligations, in THE OXFORD HANDBOOK OF JURISPRUDENCE AND LEGAL PHILOSOPHY, supra n. __ at 532-535.

30 See, e.g., HART, supra n. __ at 241. 31 DWORKIN, supra n. 22 at 65-68. 32 See, e.g., David Hoy, Interpreting the Law: Hermeneutical and Poststructuralist Perspectives,

58 S. Cal. L. Rev. 135 (1985); MARMOR, supra n. ___.

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“grounds of law,” that is, about the criteria in that legal system’s rule of recognition. In

fact, of course, no positivist accepts the semantic view which would “sting” them in the

manner described;34 as Joseph Raz puts a representative positivist rejoinder: “Each

person takes his use of terms and concepts to be governed by the common criteria for

their use…The criteria that governs people’s use of language are simply the criteria

generally relied on in their language community for the use of those terms.”35 Or as

Dworkin himself puts it more recently: “The purpose of my ‘semantic sting’ argument

was [to show] …that…sharing a concept does not necessarily mean sharing criteria for

its application.”36 Since everyone agrees, the argument “stings” no one.

The confusion about the “semantic sting” is closely related, I suspect, to

Dworkin’s recent penchant for complaining that he has no idea what Hart could have

meant in calling his own theory “descriptive” and as aimed at elucidating the “concept”

of law. Yet Dworkin himself begins a recent attack on legal positivism by summarizing

his own view as being descriptive in exactly the sense at issue for legal positivists: “I

argued that [positivism] is not faithful to the actual practices of citizens, lawyers, and

judges in complex political communities: in practice, I said, people who argue about the

content of law draw on moral considerations in a way that positivism cannot explain.”37

But positivism explains it, and has explained it, for decades, though Dworkin never

seems to notice;38 nor does Dworkin respond when positivists ask Dworkin how he

33 DWORKIN, supra n. 22 at 45. 34 See, e.g., Jules Coleman, “Methodology,” in THE OXFORD HANDBOOK OF

JURISPRUDENCE AND LEGAL PHILOSOPHY, supra n. __ at 314-319. 35 Joseph Raz, Two Views of the Nature of the Theory of Law: A Partial Comparison, 4 LEGAL

THEORY 249, 263 (1998). 36 Ronald Dworkin, Thirty Years On, 115 HARV. L. REV. 1655, 1684 (2003). 37 Id. at 1655. 38 See, e.g., Raz, supra n. 24; HART, supra n. __ at 263-268.

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proposes to demarcate those invocations of morality that are supposed to be legally

binding from those that are simply cases of judges “legislating from the bench” or

exercising discretion.39 Dworkin, who invokes “actual legal practice” as the benchmark

of adequacy for a legal theory, knows full well that in “actual practice” lawyers and

judges recognize this distinction, and it has been a fundamental difficulty for Dworkin

that he has no account of it. But the real point I want to emphasize here is just this:

Dworkin himself has essentially the same view as Hart as to what a descriptively

adequate theory of law would look like, all the talk about “interpretation”

notwithstanding.

(6) Dworkin claims that there exists a right answer as a matter of law in all (or

almost all) cases. The thesis, as everyone knows, strikes law students and lawyers as

extravagantly strange, but the question is what philosophical problems afflict it? Here is

one: since the right answer as a matter of law for Dworkin turns explicitly on moral

considerations, it was objected, most famously by John Mackie in the late 1970s,40 that if

there are not objectively right answers to moral questions, there can not be objectively

right answers to legal questions. Dworkin’s response has been to deny the relevance,

even the intelligibility, of two thousand years of metaethical theorizing about the

objectivity of morality, from Plato to Stevenson to Mackie to Railton. He does so

through a series of arguments so baroque and muddled41 that they have been completely

ignored by those working in metaethics, with one exception: Simon Blackburn, now the

Professor of Philosophy at Cambridge University, responded and then concluded by

39 See, e.g., RAZ, supra n. __ at 48-50. 40 See John Mackie, The Third Theory of Law, reprinted in RONALD DWORKIN AND

CONTEMPORARY JURISPRUDENCE, supra n. __. 41 See Leiter, Objectivity, Morality and Adjudication, supra n. __.

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deriding Dworkin’s “incursions…into philosophy [as]...wearying, pointless and

unprofitable.”42

(7) Finally—and this has really been the most persistently annoying feature of his

work—Dworkin has throughout his career run together the claim that “such-and-such is a

valid law in this jurisdiction” with claims about which party ought to prevail in some

particular dispute. Legal positivists have always been clear that their theory concerned

the former, but by collapsing the two, Dworkin saddles positivists with implausible

claims about adjudication that their theory does not, in fact, entail. What is astonishing is

that this conflation has been pointed out to Dworkin in print and in seminars for decades,

yet he continues to propound it. Here is an illustrative passage from Dworkin’s most

recent publication, his Hart Lecture at Oxford, which has recently appeared in the Oxford

Journal of Legal Studies.43 Dworkin asks the reader to consider the hypothetical case of

Mrs. Sorenson who has sued multiple drug-makers, all of whom produced the kind of

drug that injured her, but none of whom she knows to have produced the particular drug

she took—obviously, the hypothetical illustrates the familiar market-share liability theory

from tort law. According to Dworkin,

Hart’s sources thesis [the thesis that “the existence and content of law can be

identified by reference to the social sources of law”44] is very far from netural

between the parties in Mrs. Sorenson’s case....No ‘source’ of the kind Hart had

in mind had provided that people in Mrs. Sorenson’s position are entitled to

recover damages on a market-share basis, or stipulated a moral standard that

42 Simon Blackburn, Comments on Dworkin,

http://www.brown.edu/Departments/Philosophy/bears/9611blac.html (1996) (last viewed September 21, 2004).

43 Hart’s Postscript and the Character of Political Philosophy, 24 Ox. J. Leg. St. 1 (2004).

15

might have that upshot or consequence. So if Hart is right Mrs. Sorenson cannot

claim that law is on her side....Mrs. Sorenson’s lawyers argued to the contrary.

They denied the sources thesis: they said that general principles inherent in the

law entitled their client to win. So Hart’s view is not neutral in the argument: it

takes sides. It takes sides, in fact, in every difficult legal dispute, in favour of

those who insist that the legal rights of the parties are to be settled entirely by

consulting the traditional sources of law.45

But this misstates Hart’s view, as Dworkin by now must surely know: Hart’s view, as

expressed in the sources thesis, simply does not “take sides” on how Mrs. Sorenson’s

case comes out. The sources thesis entails that, to the extent that a judge has a duty to

decide according to law, then the judge must apply the source-based norms; but it is no

part of the sources thesis, or Hart’s view, to deny that in some cases, the duty to apply

legally valid norms is, and ought to be, overridden by other equitable and moral

considerations.46

So there we have it: seven distinctive Dworkinian theses, none very plausible,

many spectacularly wrong-headed, all extensively criticized, and some abandoned

already by Dworkin himself. That, as far as I can see, is Dworkin’s “positive” legacy in

core jurisprudence.

Supposing I am right about all this, there does remain a final puzzle: namely,

why is Ronald Dworkin so famous in legal circles if his positive jurisprudential

contribution turns out, sadly, to amount to so little? The explanation resides in two

44 HART, supra n. __ at 269. 45 Dworkin, supra n. 43 at 20. 46 Thanks to Les Green for help in formulating this aspect of Hart’s view.

16

important facts about Dworkin’s writing. First, he is an extremely good writer: smooth,

inviting, glib, a natural for The New York Review of Books. He is, in many ways, the

quintessential “sophist” of legal theory, in both the good and bad senses of that term: his

rhetoric is compelling, often inspired, and the rhetorical gift carries the bold and

implausible jurisprudential theses along. Second, and not unrelated, Dworkin has

repeatedly commented on the pressing legal issues confronting the United States

Supreme Court, thus guaranteeing him a wide legal audience in the United States where

the business of the Supreme Court looms large on the academic horizon. While Hart, to

be sure, may have had a direct influence on the decriminalization of homosexuality in

Britain,47 neither he nor any other jurisprudent has intervened with such frequency on

“hot” legal questions (even if Dworkin can claim no practical success comparable to

Hart’s).48

Now while Dworkin often writes as if his arguments about affirmative action, free

speech, judicial confirmations, the rights of defendants, and so on, depended on his

jurisprudential claims, the good news is that they are almost all detachable from them. No

politically liberal legal positivist has any reason to quarrel with Dworkin’s defense of

liberal values in law, except in the trivial sense that Dworkin pretends these liberal values

are always the requirements of law, as opposed to simply morally attractive answers to

the legal and policy questions.49 But Dworkin is justly famous as a liberal American

constitutional theorist, whose expansive view of the Constitution’s meaning has been an

47 See, e.g., H.L.A. HART, LAW, LIBERTY, AND MORALITY (1963). 48 As Les Green has reminded me, on the most pressing issues of the day—such as, most recently,

the criminal and immoral invasion of Iraq by the United States—Dworkin has been silent. 49 Distinguishing between these two possibilities is not mere fussiness: it fundamentally affects

the kinds of arguments appropriate to justify the claims at issue, as well as implicates views about the proper role of courts in a democratic society.

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inspiration for many.50 This fact, alas, has led many to assume that there must be merit in

the underlying philosophical views about law which Dworkin himself presents, wrongly,

as necessary for his substantive arguments.

There is now reason to think that Dworkin himself recognizes the grim state of

affairs for his idiosyncratic jurisprudential program, as I have described it here. The

evidence I have in mind is that in recent years Dworkin has increasingly taken the

desperate route of accusing his jurisprudential opponents of being not just wrong, but of

being uninteresting, boring, and having bad motives. So, for example, in an essay

published recently on “Hart’s Postscript and the Character of Political Philosophy,”51

Dworkin concludes with the following anecdote:

A few weeks ago, talking to Professor John Gardner of Oxford University, I said

that I thought that legal philosophy should be interesting. He jumped on me.

“Don’t you see?” he replied. “That’s your trouble.” I am guilty of his charge.52

The surrounding text makes clear that legal positivists—John Gardner is one—are not,

needless to say, “guilty” of being “interesting.” Unfortunately, Dworkin omits the actual

context of Gardner’s statement, which—as reported to me by Gardner—

concerned Dworkin’s assumption that philosophical questions about law had to be of

interest, i.e., practically relevant, to lawyers and judges. I am fairly confident that

Professor Gardner--like Professors Coleman, Green, Hart, Kramer, Marmor, Raz,

Waluchow, and so on—finds legal positivism, and the philosophical issues it raises, quite

50 See, e.g., CHRISTOPHER EISGRUBER, CONSTITUTIONAL SELF-GOVERNMENT

(2001); LAWRENCE G. SAGER, JUSTICE IN PLAINCLOTHES: A THEORY OF AMERICAN CONSTITUTIONAL PRACTICE (2004). It is perhaps worth noting that Professors Eisgruber and Sager were both, at one time, Dworkin’s colleagues at New York University.

51 Dworkin, supra n. 43. 52 Id. at 36.

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interesting. But they are modest enough to recognize that it does not exhaust the

problems lawyers and judges confront.

More dramatic was Dworkin’s hatchet job in the Harvard Law Review in 2003 on

Jules Coleman’s book The Practice of Principle, in which Dworkin jeered at legal

positivism as a kind of “scholastic theology.” As evidence of this “sacred faith” of the

positivists, Dworkin writes that,

They [meaning positivists] teach courses limited to "legal philosophy" or

analytic jurisprudence in which they distinguish and compare different

contemporary versions of positivism, they attend conferences dedicated to those

subjects, and they comment on each other's orthodoxies and heresies in the most

minute detail in their own dedicated journals.53

Put aside the falsehood that legal positivists who teach legal philosophy ignore non-

positivist authors like Finnis, Fuller, and Dworkin, what is astonishing about this passage

is that we could change the target to philosophers of mind and rewrite it as follows:

They teach courses limited to “philosophy of mind” or theories of content in

which they distinguish and compare different contemporary versions of the

causal theory of content, they attend conferences dedicated to those subjects,

and they comment on each other’s orthodoxies and heresies in the most minute

detail in their own dedicated journals.

Prior to Dworkin, one might have thought this was simply a description of scholarship,

not an activity that was risible or reprehensible. Oddly, the only contemporary

53 Dworkin, supra n. 36 at 1679. The “dedicated journal” is a reference to Legal Theory, which I

edit with Larry Alexander and Jules Coleman. The journal is not, of course, “dedicated” to legal positivism, though that is one of many topics covered by contributors.

19

philosopher who would think to deride philosophy of mind in these terms would be

Richard Rorty, a figure for whom Dworkin otherwise has little patience.

This Rorty-style anti-intellectualism does, alas, seem to have taken a hold on

Dworkin, for in the same review essay, he levels the following remarkable ad hominem at

legal positivists, namely, that their real motive is to preserve “legal philosophy as an

independent, self-contained subject and profession.” So legal positivists accept

positivism not because they think it true, but because it makes it possible for them to

have a career! Dworkin continues: “Positivists since Hart…have defended with great

fervor a guild-claim: that their work is conceptual and descriptive in a way that

distinguishes it from a variety of other crafts and professions.”54 Well, yes, Hart does

believe that, though Dworkin might have added that Hart doesn’t think this distinguishes

his method from the craft and profession of philosophy, at least as traditionally

conceived. We should be appalled, I imagine, if someone thought it appropriate to

attack, say, Frank Jackson’s recent defense of conceptual analysis in ethics and

metaphysics55 on the grounds that it makes philosophy independent of other disciplines,

and thus Jackson’s real motivation must be to preserve a professional niche for

philosophers!

Dworkin’s recent rhetoric, then, borders, I’m afraid, on the “unhinged,” though

perhaps it is explained by the fact that, with literally a handful of exceptions, the

jurisprudential landscape in both the United Kingdom and the United States is now

54Id. 55 FRANK JACKSON, FROM METAPHYSICS TO ETHICS: A DEFENCE OF

CONCEPTUAL ANALYSIS (1998).

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populated by legal positivists: in that very tangible sense, the field is passing Dworkin

by.

It is a fairly reliable sign, I think, that a research program is on its last legs when

the best its proponent can do is accuse those not engaged in the program of having bad

“motives” and of not being very “interesting.” Interest, like beauty, is in the eye of the

beholder, and just as we would be suspicious if Dworkin complained that the theories of

legal positivists were “ugly,” we should be equally worried when he resorts to calling

them “uninteresting”: the only philosophical issue, I’m afraid, is whether they’re true.

Dworkin, alas, has largely given up trying to show that they aren’t; and, what is worse, he

has failed to respond to the army of legal theorists who have argued that his own views

are false.

* * * * *

I shall conclude on a personal note. I’ve never met Ronald Dworkin.56 Once,

about a half-dozen years ago, he e-mailed me out of the blue to express his appreciation

for an obscure article of mine—or, perhaps I should say, “a more obscure-than-usual

article of mine”—showing that Quine was not a postmodernist.57 It was a kind gesture

by a famous man, and I’ve obviously repaid that kindness badly.

But philosophy is not about kindness, it’s about getting things right. A large

number of those who work in legal philosophy say privately what I’ve said publicly this

evening. Perhaps because, unlike the vast majority of those who work in jurisprudence, I

56 As Doug Husak pointed out to me, this says more about Dworkin’s disengagement from his

professional colleagues, than about my not “getting out” enough. Dworkin, for example, has never attended the annual Analytic Legal Philosophy conference, the major professional event in the field—even in the year when it was held at his university! Given the widespread perceptions about the argumentative feebleness of his own views, this may simply be prudence on his part.

57 Brian Leiter, Why Quine is not a Postmodernist, 50 SMU L. REV. 1739 (1997).

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never passed through Oxford during my studies, I never internalized the “reverence for

the great man” which keeps so many others silent. Perhaps because I did my graduate

work at the University of Michigan, in a philosophical climate that was ferocious and

often merciless in its pursuit of an argument—and in which the standards of excellence in

philosophy were set by the likes of Allan Gibbard and Peter Railton—I have reacted

badly to Dworkin’s merry-go-around of confusing distinctions, his endless reinvention of

the wheel (as though no philosophical work on the topic had come before), his failure to

represent either his critics or his targets correctly, and his dismissal of serious

philosophers like Railton as making irrelevant or unintelligible claims about basic

philosophical questions.

The historians of 20th-century jurisprudence will certainly want to understand the

ideas and arguments of an intellectually agile and rhetorically gifted thinker named

Ronald Dworkin. But the legal philosophers of the 21st-century, including those at the

new Institute for Law and Philosophy at Rutgers University, will not: they will make

their mark, I predict, on a jurisprudential landscape in which the Dworkinian skyline is a

fading image on the horizon. The field will be better for it.