By Mike Dorf
In my latest FindLaw column, I revisit a theme I explore roughly once every five years: Advice to new law students about what to expect in law school. (The column provides links to the earlier essays.) Here I want to ask whether one of the points I make in the new column contradicts one of the leading theoretical accounts of law. (My answer: Maybe, but so what?)
In the column, I claim that law teachers ask more or less two kinds of questions: 1) Questions to which the law provides a clear answer (e.g., Absent a confession, how many witnesses does the Constitution require to testify to support a treason conviction? Answer: Two); and 2) Questions to which the legal materials do not provide a determinate answer (e.g., Does California's Proposition 8 violate the federal Constitution? Answer: We won't know definitively until the Supreme Court rules on the matter.)
This way of framing things is broadly consistent with how legal positivists think about law. They say that where the law has gaps and ambiguities, judges have discretion to choose from a range of plausible answers, although once an authoritative court has given an answer, the law is clear (unless and until some actor with the power to change it does so).
However, for over 40 years, Ronald Dworkin and various of his followers have been attacking the positivist view. Dworkin argues that there are unique right answers, even in hard cases (the "right answers thesis"), and notes, among other things, that lawyers and judges certainly do not talk as though the judges are merely exercising discretion in hard cases. For example, when Judge Walker held that Prop 8 violates the Constitution, he gave reasons why the pre-existing legal materials compel that result. The 9th Circuit will likewise write an opinion either affirming or reversing based on a reading of the case law and other materials. And so will the Supreme Court, if it takes the case. No judge will say anything like "I have discretion to decide whether Prop 8 is unconstitutional, and I exercise it in thus and such a manner."
Positivists in turn respond that Dworkin is taking judicial rhetoric too seriously. Although positivists generally reject the thoroughgoing legal realist position that says that law is thoroughly indeterminate, they acknowledge indeterminacy at the margin. The rhetoric of right answers, the positivists say, is basically a means of legitimation for courts exercising countermajoritarian power in constitutional cases. (Dworkinians and positivists have the same fight even in sub-constitutional cases, but the stakes are higher in constitutional ones, so I focus on them here.)
I'm not especially interested in refereeing the dispute between Dworkin and the positivists, but I do want to raise the question of whether my column slights the Dworkinian position by simply asserting the proposition that the law contains gaps and ambiguities, without noting the Dworkinian alternative. In response to this objection, I'll offer two defenses.
The first is situational. In an essay aimed at beginning and prospective law students, introducing a central debate in jurisprudence would have been tangential and confusing.
My second defense cuts deeper. I want to say, albeit tentatively, that the right answers thesis is a distraction even for sophisticates. It offers a metaphysical claim--there really are right answers to hard legal questions--in answer to a practical question: How does law function? Dworkin is correct that judges write opinions as though they believe that they are discovering answers in legal materials rather than simply filling gaps and resolving ambiguities. And the positivist's legal realist rejoinder that this is only so much rhetorical cover strikes me as too fast; many judges actually do believe that they are discovering right answers. That belief itself probably plays an important role in shaping and constraining what the positivist believes is the judges' discretion.
But nothing in this debate seems to turn on whether the really are right answers (in REALITY AS IT REALLY IS, as Richard Rorty might say). The important points for understanding how law functions seem to be these: 1) The law is often indeterminate in the sense that a well-informed observer will have difficulty predicting the outcome of a hard case using the conventional legal materials; 2) When judges decide hard cases, they justify their decisions in opinions that speak as though they really believe that the answer was determined by the legal materials; 3) Many such judges probably do believe that their answers are determined by the legal materials; even though 4) Judges frequently disagree with one another about how to resolve hard cases.
I suppose that if Dworkin's right-answers thesis could somehow definitively be shown to be false, that could be important, because it might change 2) and/or 3). But it's not at all clear to me that a demonstration of the truth of the right-answers thesis would have any implications for either how we understand law or how judges should decide cases. Dworkin himself seems to realize this. He sometimes acknowledges that it is possible for a judge to practice his brand of coherentism (what he calls "law as integrity") but to reach very different substantive outcomes. That's because the "glue" in Dworkin's version of coherentism consists of principles of political morality.
Now it happens that Dworkin, as a moral realist, also thinks there are right answers to moral questions, even though people disagree about what they are. But the fact of profound moral disagreement means that the right-answers thesis has no practical bite. From what H.L.A. Hart (the leading positivist) called the "external" perspective, courts will appear to be filling genuine gaps and ambiguities through the exercise of discretion, even though from the perspective of each individual judge, the judicial task will consist in trying to figure out the right answer. This explains why Hart was able to say in the posthumously published Postscript to his The Concept of Law that Dworkin's theory was mostly compatible with his own.
Does all of this mean that the right-answers thesis is wrong? Hardly. I tend to think that there is something very important going on in Dworkin's observation that judges understand what they are doing as searching for correct answers, not just exercising discretion. But it's important for the internal perspective, not the external perspective.