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Justice in RobesReview - Justice in Robes
by Ronald Dworkin
Harvard University Press, 2006
Review by Tatiana Patrone, Ph.D.
Jun 20th 2006 (Volume 10, Issue 25)

Ronald Dworkin's Justice in Robes is a thought-provoking collection of essays that aim to answer the following question: "Do moral considerations figure among the truth conditions of propositions of law and, if so, how?" (5). Lawyers, judges, philosophers of law, and political philosophers agree that the propositions of law have truth-value. For instance, it is either true or false that "American constitutional law permits the President to order foreigners suspected of terrorism to be tortured" (2). (What this truth-value is is, of course, another matter.) The controversial question that Dworkin addresses and, ultimately, answers is whether the truth-value of such propositions depends on substantive moral considerations. According to Dworkin, moral principles necessarily belong to the set of the truth-conditions for propositions of law, and Justice in Robes consists of both critical and constructive arguments for this claim. Thus, on the one hand, Dworkin argues against positions that divorce moral principles from the questions of the validity of propositions of law, and, on the other hand, he attempts to show that such divorce is in fact impossible.

At the heart of Justice in Robes' critical essays (which include "Pragmatism and Law", "Moral Pluralism", and "Hart's Postscript and the Point of Political Philosophy") is Dworkin's attack on what he calls the "Archimedean" approach to legal theory and philosophy in general. Archimedeans, Dworkin argues, insist on the sharp division between two levels of discourse: "the discourse of non-philosophers reflecting and arguing about what is right or wrong, legal or illegal, true or false, beautiful or mundane" and the "meta-discourse", in which such claims are "classified and assigned to philosophical categories" (141). In law too, according to this approach, while lawyers and judges engage in the first-level discourse concerning what is legal and what is illegal, philosophers of law and political philosophers engage in the second-order (or meta-) discourse concerning the status and the truth-conditions of these claims. Dworkin argues that the Archimedean approach is misguided. What he finds especially objectionable about it is that it aims to separate the normative propositions (which, Archimedeans argue, belong to the first-order discourse) from descriptive propositions concerning the status of the lower-level normative claims. Against such attempts, Dworkin aims to show that there is no gap between the normative claims of what he calls an "interpretative discipline" (such as law) and the descriptive claims of a corresponding meta-discipline (such as philosophy of law). On the contrary, Dworkin aims to show, questions concerning the truth-conditions of the propositions of law (questions that Justice in Robes addresses) are themselves normative questions and thus demand answers in normative terms.

The Archimedean approach lies at the bottom of the three quite different and, according to Dworkin, equally misguided legal doctrines -- legal pragmatism (such as Rorty's and Posner's), legal positivism (such as Hart's and Coleman's), and moral pluralism (such as Berlin's). What Dworkin attempts to spell out is, first, the anatomy of each position and the source of its commitment to the normative/descriptive divide and, second, the reasons why the position is unsound.

Pragmatism, Dworkin argues, is a paradigm case of the Archimedean approach to law and philosophy in general. For a pragmatist, the inquiry into "what the law really is" is pointless (37). Rather, we need to recognize that there is no external legal reality which our inquiry refers to. Instead, judges "should decide the cases before them in a forward-looking, consequentialist style" (21). In other words, according to pragmatists, to suggest that objective moral principles serve as the truth-conditions for the propositions of law (as Dworkin holds they must) is to misunderstand the nature of legal discourse: propositions of law (or any set of propositions, for that matter) do not refer to some external reality at all; therefore, our best guide as to what legal claims to accept as valid is a "forward-looking" assessment of what legal claims let us "get on" best, i.e., what legal claims serve the common good. This pragmatic approach to law, Dworkin argues, is "philosophically confused" (23). According to pragmatism, there is a fundamental difference between two kinds of claims, e.g., (A) 'Bestiality is illegal' and (B) 'It is an objective truth that bestiality is illegal'. For pragmatists, (A) is a true, normative claim the proper place of which is in the first-order (non-philosophical) discourse. On the other hand, (B) is a meta-legal descriptive claim, a claim concerning the status of (A). This meta-legal claim, a pragmatist holds, is false since it claims that (A) is true in virtue of its relation to some independent reality. Dworkin, on the other hand, argues that there is in fact no difference between (A) and (B) and that the pragmatist is merely "trying to hijack [us] to some mystical philosophical level" (43), the level that is supposed to transcend the legal discourse and that is supposed to be accessible only to philosophers (as theoreticians of law) but not to lawyers and judges (as practitioners of it). Instead, Dworkin maintains, all discourse concerning law belongs to the same level, the level that is normative through and through, and drawing a sharp line between (A) and (B) is nothing more than a "verbal inflation" (42).

H. L. A. Hart's The Concept of Law (which Justice in Robes uses as a case-study in legal positivism) is another version of Archimedeanism in legal philosophy. According to Hart and contrary to Dworkin's view, questions such as 'What is law?' and 'What is a valid law?' are descriptive questions in the sense that they ought to be answered in terms of an analysis (rather than a normative interpretation) of the legal practice. Furthermore, Hart argues that questions such as these are philosophical questions that ought to be answered by theoreticians who deal with meta-theory rather than by practitioners (lawyers and judges) who are engaged in the legal practice itself. Dworkin disagrees with both claims. Hart's theory, he argues, fails to show that there can be a descriptive (non-normative) answer to questions concerning what law is in general and what a valid law is in particular. A descriptive answer would be possible, Dworkin says, had the concept of law (and of a valid law) been akin to the concept of a bachelor or even to the natural kind concepts such as 'gold' or 'tiger'. Had there been an agreement concerning the criteria for the concept's intension (as it is with 'bachelor') or at least with respect to its instances (as it is with 'tiger') such an analysis would be possible. But 'law' (and 'valid law'), Dworkin claims, are "interpretative" concepts. And if this is the case, then appealing to the legal practice in order to clarify the concept of law requires either taking an empirical route of collecting the data concerning the actual legal practices across cultures and times or a rather bold claim that such an empirical inquiry is superfluous since the convention concerning 'law' and 'valid law' is fairly uncontested. Dworkin shows that Hart's project does not satisfy either of these conditions: on the one hand, The Concept of Law (like other positivist treatises) does not support its conclusions with adequate empirical evidence. (This, however, is not its main failure since Hart claims his project to be philosophical rather than sociological.) On the other hand, it is plainly false that 'law' and 'valid law' are uncontested concepts: continuous arguments concerning what law is and what valid laws require show clearly that "there is no convention" concerning constitutional law at all. Thus, Dworkin concludes, apart from sharing the faults of pragmatism, positivism also fails to show that a purely descriptive answer to the fundamental legal questions is possible.

In addition to pragmatism and positivism, moral pluralism challenges Dworkin's project in another way. According to moral pluralism (as Berlin puts it) "it is a conceptual truth" about our values that they inevitably come into conflict, "the collisions of values", therefore, "are the essence of what they are and what we are" (105). This view challenges Dworkin's position since, on Dworkin's account, the questions concerning what valid law requires can be approached and answered by appealing to general moral principles. But what if the fundamental moral principles themselves come into conflict and come into conflict necessarily? Berlin's position, Dworkin argues, is poorly supported and, ultimately, untenable. In fact, Dworkin claims that moral pluralism is yet another case of the generally indefensible Archimedean approach to philosophy. Berlin, Dworkin points out, famously claims that two important political concepts -- liberty and equality -- inevitably come into conflict. This claim, however, rests on Berlin's understanding of liberty as "freedom from the interference of others in doing whatever it is that you might wish to do" (112). In response to this, Dworkin argues that Berlin's commitment to pluralism plainly follows from Berlin's own interpretation of the fundamental political values, the interpretation that neither is the only one available nor (according to Dworkin) is correct. If we interpret 'liberty' in a different (Kantian) sense of "freedom to do whatever you like so long as you respect the moral rights of others" (112), then the conflict between liberty and equality disappears. Dworkin concludes that Berlin ought to have but failed to argue for his particular interpretation of 'liberty' (and other concepts) to make a good case for pluralism. As Dworkin puts it, an argument for pluralism "must show why the understanding of the value that produces the conflict is the most appropriate one" (116). The more general flaw of Berlin's account, Dworkin says, is still due to the Archimedean approach that it takes: "the project of analyzing what liberty really means, Berlin thought, must be pursued by some form of conceptual analysis [of liberty, equality, etc.] that does not involve normative judgment" (146). This, of course, is precisely the sort of analysis that Dworkin argues is conceptually impossible.

Dworkin's Justice in Robes is bound to interest and challenge any student of law, philosophy of law, and philosophy in general. While the essays most directly address the question 'What makes a proposition of law true or false?' they contain a more general analysis of influential philosophical doctrines such as pragmatism, positivism, and pluralism. The lessons of Justice in Robes, therefore, go beyond the field of philosophy of law and reach to the areas of metaphysics, philosophy or language, ethics, and politics.

 

2006 Tatiana Patrone

 

Tatiana Patrone will take a position this fall as Assistant Professor of Philosophy at Montclair State University, New Jersey.


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