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THE END OF EMPIRE:
DWORKIN AND JURISPRUDENCE IN THE 21 st 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 scholars will be reading 200 years
from now.",
2
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 equality
3
).
Notwithstanding the majestic sweep and ambition of his jurisprudential
corpus, my conclusion-which I've come to only gradually over the last
* 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."
i. New York University School of Law, Faculty Biography - Professor Ronald
Dworkin, at http://www.law.nyu.edu/faculty/profiles/bios/dworkinrbio.html (last visited
Nov. 30, 2004) (quoting READING DWORKIN CRITICALLY (Alan Hunt ed., 1992)).
2. Id.
3. See, e.g., RONALD DWORKIN, SOVEREIGN VIRTUE (2000).
R UTGERS LAW JOURNAL
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, that is, the way of a figure 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-his 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. This is certainly
no objection to his contributions, just the hyperbole that surrounds them.
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.
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.
4
At the same
4. See, e.g., Larry Alexander, Insufficient Concern: A Unified Conception of Criminal
Culpability, 88 CAL. L. REv. 931 (2000); Larry Alexander, Inculpatory and Exculpatory
Mistakes and the Fact/Law Distinction, 12 LAW & PHIL. 33 (1993); Larry Alexander, Self-
Defense, Justification, and Excuse, 22 PHIL. & PuB. ArF. 53 (1993); Larry Alexander,
[Vol. 36:165
INSTITUTE FOR LA WAND PHILOSOPHY
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
Deigh, David Dolinko, Antony Duff, Jean Hampton, Douglas Husak, Nicola
Lacey, Andrew von Hirsch, and many others.
5
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.
6
Reconsidering the Relationship Among Voluntary Acts, Strict Liability, and Negligence in
Criminal Law, 7 SoC. PHIL. & POL'Y 84 (1990); Mitchell N. Berman, Justification and Excuse,
Law and Morality, 53 DUKE L.J. 1 (2003); Mitchell N. Berman, The Evidentiary Theory of
Blackmail: Taking Motives Seriously, 65 U. CHI. L. REV. 795 (1998); GEORGE FLETCHER,
RETHINKING CRIMINAL LAW (1978); John Gardner & Stephen Shute, The Wrongness of Rape,
in OXFORD ESSAYS IN JURISPRUDENCE, FOURTH SERIES (Jeremy Horder ed., 2000); John
Gardner, The Gist of Excuses, I BUFF. CRIM. L. REV. 575 (1997); Kent Greenawalt, The
Perplexing Borders ofJustification and Excuse, 84 COLUM. L. REv. 1897 (1984); MICHAEL S.
MOORE, PLACING BLAME: A THEORY OF CRIMINAL LAW (1997); MICHAEL S. MOORE, ACT AND
CRIME (1993); Stephen J. Morse, Culpability and Control, 142 U. PA. L. REv. 1587 (1994);
Stephen J. Morse, Excusing the Crazy: The Insanity Defense Reconsidered, 58 S. CAL. L. REV.
777 (1985); PAUL H. ROBINSON, STRUCTURE AND FUNCTION IN CRIMINAL LAW (1997).
5. See, e.g., JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW, 4 vols. (1984-
1988); John Deigh, On the Right to be Punished: Some Doubts, 94 ETHICS 191 (1984); David
Dolinko, Three Mistakes about Retributivism, 39 UCLA L. REV. 1623 (1992); David Dolinko,
Some Thoughts about Retributivism, 101 ETHICS 537 (1991); 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 PRINCIPALS 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).
6. 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, Responsibility for Outcomes
2004)
RUTGERS LAWJOURNAL
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 benefited from the 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.
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.
8
and the Law of Torts, in PHILOSOPHY AND TORT LAW (Gerald Postema ed., 2001); Stephen R.
Perry, The Moral Foundations of Tort Law, 77 IOWA L. REV. 494 (1992); 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, Legal Cause:
Cause-in-Fact and the Scope of Liability for Consequences, 54 VAND. L. REv. 941 (2001);
Jane Stapleton, Law, Causation, and Common Sense, 8 OXFORD J. LEGAL STUD. 111 (1988);
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).
7. See, e.g., John Gardner, Legal Positivism: 5 12 Myths, 46 AM. J. OF JURIS. 1999
(2001); John Gardner & Timothy Macklem, Reasons, in THE OXFORD HANDBOOK OF
JURISPRUDENCE AND PHILOSOPHY OF LAW (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).
8. See, e.g., David 0. Brink, Legal Interpretation, Objectivity, and Morality, in
OBJECTIVITY IN LAW AND MORALS (Brian Leiter ed., 2001); David 0. Brink, Legal Theory,
Legal Interpretation, and Judicial Review, 17 PHIL. & PUB. AFF. 105 (1988); 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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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 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 lawg-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.'
0
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 cases where it has played a minor role, it has been as a foil (for
example, for natural law theorists" or for those writing on objectivity in
law
12
or on vagueness
13
) or as a background source of inspiration (for
9. See, e.g., Brian Leiter, Law and Objectivity, in THE OXFORD HANDBOOK OF
JURISPRUDENCE AND PHILOSOPHY OF LAW, supra note 7; 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).
10. 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).
11. 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 & 241 n.2.
12. See, e.g., Brian Leiter, Objectivity, Morality and Adjudication, in OBJECTIVITY IN
LAW AND MORALS 66 (Brian Leiter ed., 2001) [hereinafter Leiter, Objectivity, Morality and
Adjudication]; Michael S. Moore, Metaphysics, Epistemology, and Legal Theory, 60 S. CAL.
L. REV. 453 (1987).
13. See. e.g., ENDICOTT, supra note 10, at 63-72.
2004]
R UTGERS LAW JOURIAL
example, in Stavropoulos's work
4
). To return, then, to the NYU web page
hyperbole, we can say this: on the evidence of the developments that have
made 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,
5
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,1
6
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.
7
In many cases,
Dworkin simply got Hart wrong, and in other cases, positivists produced
compelling rejoinders.1
8
It is striking that in the posthumously published
14. See, e.g., STAVROPOULOS, supra note 10.
15. Brian Leiter, Beyond the Hart/Dworkin Debate: The Methodology Problem in
Jurisprudence, 48 AM. J. JURIS. 17 (2003).
16. 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).
17. See Leiter, supra note 15, at 19-24.
18. 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 disingenuous insofar as disputants about the
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"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. . . ."19 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 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. 0 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
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.
19. H.L.A. HART, THE CONCEPT OF LAW 239 (2d ed. 1994) (emphasis added).
20. See Leiter, supra note 15, at 24. 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.
2004)
R UTGERS LAW JOURNAL
Stephen Perry,
2
1 not Dworkin, and while Perry gestures at Dworkin's
influence, it is clear-indeed, even acknowledged by Perry himself?
2
-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.
Even if 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"
' 23
and then largely concludes with the 1986 book Law's
Empire,
24
though he has offered some emendations and clarifications in a
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.
2
' Dworkin gave up this distinction (after others showed it to be
unstable
26
), 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.,
21. 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) [hereinafter Perry, Hart's Methodological
Positivism].
22. Perry, Hart's Methodological Positivism, supra note 21, 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.").
23. Ronald Dworkin, Hard Cases, reprinted in RONALD DWORKIN, TAKING RIGHTS
SERIOUSLY (1977) [hereinafter DWORKIN, TAKING RIGHTS SERIOUSLY].
24. RONALD DWORKIN, LAW'S EMPIRE (1986) [hereinafter DWORKIN, LAW'S EMPIRE].
25. The Model of Rules I, in DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 23, at
22-28.
26. See Joseph Raz, Legal Principles and the Limits of Law [hereinafter Raz, Legal
Principles], reprinted in RONALD DWORKIN AND CONTEMPORARY JURISPRUDENCE, supra note
16.
[Vol. 36:165
INSTITUTE FOR LA WAND PHILOSOPHY
rights-based) arguments.
27
After Neil MacCormick's seminal Legal
Reasoning and Legal Theory
28
and John Bell's Policy Arguments in Judicial
Decisions,
30
Dworkin quietly abandoned this wildly implausible claim. Overt
policy decisions are simply everywhere in the cases.
31
(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, 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 justification for the exercise
of coercive power by the state.
33
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.
34
(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.",
35
This implausible thesis was subjected
to withering criticisms by a diverse group of philosophers interested in
interpretation in the arts, literature, and law, 6 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
27. DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 23.
28. NEIL MACCORMICK, LEGAL REASONING AND LEGAL THEORY (1978).
30. JOHN BELL, POLICY ARGUMENTS IN JUDICIAL DECISIONS (1983).
31. 1 owe this point to Les Green.
32. DWORKIN, LAW's EMPIRE, supra note 24, at 190.
33. 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 PHILOSOPHY OF LAW, supra note 7, at 532-35.
34. See, e.g., HART, supra note 19, at 241.
35. DWORKIN, LAW's EMPIRE, supra note 24, at 65-68.
36. See, e.g., David Hoy, Interpreting the Law: Hermeneutical and Poststructuralist
Perspectives, 58 S. CAL. L. REv. 135 (1985); MARMOR, supra note 10.
2004]
R UTGERS LAW JOURNAL
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.
37
If legal positivists believed this, then it would follow that they
could not explain disagreement between lawyers about the "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;
38
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 govern people's use
of language are simply the criteria generally relied on in their language
community for the use of those terms.
' 39
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.
' 4
O 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."
41
But positivism explains it, and has explained it, for decades,
though Dworkin never seems to notice;
42
nor does Dworkin respond when
37. DWORKrN, LAW'S EMPIRE, supra note 24, at 45.
38. See, e.g., Jules Coleman, Methodology, in THE OXFORD HANDBOOK OF
JURISPRUDENCE AND PHILOSOPHY OF LAW, supra note 7, at 314-19.
39. Joseph Raz, Two Views of the Nature of the Theory of Law: A Partial Comparison,
4 LEGAL THEORY 249, 263 (1998).
40. Ronald Dworkin, Thirty Years On, 115 HARv. L. REv. 1655, 1684 (2003)
[hereinafter Dworkin, Thirty Years On].
41. Id. at 1655.
42. See, e.g., Raz, Legal Principles, supra note 26; HART, supra note 19, at 263-68.
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positivists ask Dworkin how he proposes to demarcate those invocations of
morality that are supposed to be legally binding from those that are simpl y
cases of judges "legislating from the bench" or exercising discretion.
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,
44
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 muddled
45
that they
have been completely ignored by those working in metaethics, with one
notable exception: Simon Blackburn, now the Professor of Philosophy at
Cambridge University, responded to Dworkin's arguments at length and
concluded by deriding Dworkin's "incursions ... into philosophy
[as] ... wearying,
pointless
and unprofitable.
' 4 6
(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
43. See, e.g., RAZ, supra note 7, at 48-50.
44. See John Mackie, The Third Theory of Law, reprinted in RONALD DWORKIN AND
CONTEMPORARY JURISPRUDENCE, supra note 16.
45. See Leiter, Objectivity, Morality and Adjudication, supra note 12.
46. Simon Blackburn, in Symposium, Ronald Dworkin, Objectivity and Truth: You'd
Better Believe It. 25 Phil. & Pub. Aff. 87 (1996), at http://www.brown.edu/Departments/
Philosophy/bears/961 Iblac.html (Sept. 11, 1996).
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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.
47
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"
48
] is very far from
neutral 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 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.
4 9
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.
50
So there we have it: seven distinctive Dworkinian theses, none very
plausible, many spectacularly wrong-headed, all extensively criticized, and
47. Ronald Dworkin, Hart's Postscript and the Character of Political Philosophy, 24
OXFORD J. LEGAL STUD. 1 (2004) [hereinafter Dworkin, Hart's Postscript].
48. HART, supra note 19, at 269.
49. Dworkin, Hart 's Postscript, supra note 47, at 20.
50. Thanks to Les Green for help in formulating this aspect of Hart's view.
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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 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,
5
1 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)."
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.
3
But Dworkin is justly famous as a liberal
American constitutional theorist, whose expansive view of the Constitution's
meaning has been an inspiration for many.
4
This fact, alas, has led many to
51. See, e.g., H.L.A. HART, LAW, LIBERTY, AND MORALITY (1963).
52. 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 largely silent.
53. 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.
54. 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.
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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,"
55
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.
56
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 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
55. Dworkin, Hart's Postscript, supra note 47.
56. Id. at 36.
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those subjects, and they comment on each other's orthodoxies and heresies in
the most minute detail in their own dedicated
journals.5
7
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 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.
58
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
57. Dworkin, Thirty Years On, supra note 40, 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.
58. Id.
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recent defense of conceptual analysis in ethics and metaphysics
59
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
unprofessional, 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 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 have never met Ronald Dworkin.
6
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.
6
1 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
59. FRANK JACKSON, FROM METAPHYSICS To ETHICS: A DEFENCE OF CONCEPTUAL
ANALYSIS (1998).
60. 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 Philosophy of Law 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.
61. Brian Leiter, Why Quine is not a Postmodernist, 50 SMU L. REv. 1739 (1997).
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said publicly this evening. Perhaps because, unlike the vast majority of those
who work in jurisprudence, I 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 21 st_
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.
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