Tuesday, August 24, 2010

Is the Right Answers Thesis Superfluous?

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.

9 comments:

Patrick S. O'Donnell said...

Mike,

I've yet to read the FindLaw column but wanted nonetheless to say a thing or two about the discussion of Dworkin's "right answers" thesis.

Of course Dworkin himself does not believe "the fact of profound moral disagreement means that the right-answers thesis has no practical bite," for if it had no practical bite, as Dworkin explains in a response to an essay by Waldron, the dedication evidenced in judges' responsibility to pursue legal issues in depth (and citizens' responsibility to judge those issues for themselves) would be "delusional" (he mentions the value of judges struggling 'in good faith' to find right answers to legal puzzles).

His is not in the first instance a metaphysical claim or argument for, as he's insisted on several occasions, his interest is in ordinary legal and moral argument. To be sure, we might respond by saying that it relies on metaphysical assumptions (or principles, constitutional and otherwise, that serve to give the law its coherence and integrity), but it seems that Dworkin believes those assumptions are not of the axiomatic sort (in which case the moral argument would be a deduction therefrom), as he rejects the "transcendental strongbox" theory of right answers (in his essay on civil disobedience), or the view that there is "a privileged perspective from which one could absolutely verify moral claims in an authoritative manner."

Nonetheless, Dworkin concedes that "the importance of these responsibilities does not depend on any assumption that judge or any citizen will find the right answer on any occasion; still less on the deeply improbable assumption that they will all agree about what the right anwser is." The "right answers" (I first typed 'rights answers'--which I suppose is some sort of Freudian slip!) thesis thus strikes me as akin to what Kant intended by the meaning of a "regulative ideal,' which would give it practical bite, but perhaps not in the sense that Dworkin's many critics have understood by same.

Much appreciation for prompting some of us to think once again about these topics.

Sam Rickless said...

As you say, Mike, practically speaking, a client will want his or her lawyer to predict how a Court will decide such and such a case. If the lawyer's answer is "I don't know", then it doesn't much matter whether the type of indeterminacy behind the answer is metaphysical or epistemic. Perhaps there is a right answer, but it hasn't been discovered. Perhaps there is no legal fact of the matter. It makes no practical difference. So if we think of a lawyer's function exclusively as involving providing advice to clients, then I agree with you that the truth-value of the "right answers" thesis is neither here nor there.

But law school is a training ground for constitutional and appellate lawyers, law clerks, and eventually judges, as well. Now if you point out to new law students (i) that lower court judges (and their clerks) act as if there are right answers in (at least some) hard cases, (ii) that constitutional and appellate briefs are underwritten by the same presupposition, and (iii) that they should prepare to act as if there are right answers, then, here too, it does not much matter whether the "right answers" thesis is true or false. All that matters is that lawyers be trained to act as if the thesis were true.

But, finally, law school is also supposed to provide training to the small number of lawyers who will eventually find themselves on SCOTUS. And here it makes a world of difference whether a SCOTUS judge merely acts as if the thesis were true or truly believes that the thesis is true. Believing that the thesis is true makes you work all that much harder to discover the right answer. Acting as if the thesis is true is compatible with making your opinion fit the answer you've already picked for other reasons. If you think of yourself as merely filling a gap in the law by exercising judicial discretion, then you aren't going to care much whether there is a right answer and your discretion will be almost completely unmoored (and certainly not moored in the moral facts, which are important to many cases).

Legal education, in my view, should prepare future SCOTUS judges to make the right decisions. If many of those decisions are right if and only if they are based on the relevant moral facts (that is, if and only if the "right answers" thesis is true, then law school should prepare students to work at discovering moral facts and should make discussion of the "right answers" thesis a central part of the curriculum.

Michael C. Dorf said...

I take Sam to be elucidating my position, rather than contradicting (or otherwise refudiating!) it. After all, SCOTUS Justices--and indeed all judges--take the internal perspective, which, as I say, the positivist account does not fully capture.

I'm not sure whether Patrick is disagreeing with my characterization of Dworkin or simply noting that Dworkin himself would disagree. I don't doubt that Dworkin would disagree, but calling a metaphysical claim "ordinary legal and moral argument," indeed, even insisting on that characterization, does not make it so.

When I said that the right-answers thesis was metaphysical, I meant "metaphysical" in the standard sense of "pertaining to first principles and ultimate grounds." I did not mean to distinguish metaphsyics from law and morality but from epistemology, the study of knowledge. And what I had in mind was the claim by Dworkin that there can be right answers even if we can't agree on what they are. One can say that one only means this in some "ordinary" sense, but that, to my mind, is to espouse a kind of pragmatism while denying the fact. The ridiculing of the "transcendental strongbox," like Dworkin's ridiculing of the notion of "morons" as the (meta)physical basis for morality (in Dworkin's "You Better Believe It"), has all of the hallmarks of pragmatism, even though Dworkin (for reasons that have never been clear to me) rejects the pragmatist label.

Bottom Line: much as I enjoy and appreciate these thoughtful comments from Patrick and Sam, the exchange as a whole persuades me that I was right to omit any hint of it in an essay aimed at beginning 1Ls!

Sam Rickless said...

I hate to disagree with you, Mike, because we clearly agree about so much. But if I, or rather we, are right, and it matters (from the internal perspective) to the practice of judging whether the "right answers" thesis is true, then (a) I don't see how the thesis is a distraction even for sophisticates, and (b) it seems to me a good idea to tell incoming law students that they should be thinking about the relation between law and morality, and whether judicial discretion involves filling gaps in the law or searching for the correct legal principle.

I suppose an argument could be made that this really *is* a question for sophisticates. Let students learn property, contracts, torts, civil procedure, etc. before asking themselves the hard (philosophical) questions. By the beginning of 2L, law students will be familiar with a great deal of the law as practised, and this will provide them with the kind of background knowledge that is needed to understand the debate over the "right answers" thesis....

Michael C. Dorf said...

Sam,

1) As to students, I very much agree with the view you tentatively offer. In my experience, jurisprudence courses work much better once students have been exposed to a substantial body of substantive law.

2) That leaves us potentially disagreeing only as to sophisticates. As I said, if judges could be persuasively shown that the right-answers thesis could be shown to be wrong, then judges would likely change their behavior. But I don't think the right-answers thesis can be shown to be wrong or, for that matter, right. (I know that Dworkin thinks he has shown it to be right, but more jurisprudes think he hasn't.)

3) Perhaps the greatest value of teaching the right-answers thesis is as a kind of reinforcement. I tend to agree with a wonderful article by Scott Altman in the early 90s, in which he argued that even if legal realism is right, it's good for judges to believe in something like the right-answers thesis, because that belief will itself constrain them. So offering potential judges (i.e., students) grounds for resisting legal realism does important work.

I still want to say that's not quite the same thing as debating the right-answers thesis for its own sake, but perhaps that's slicing the seitan too thin.

Bob Hockett said...

Nice thoughtful post as ever, Mike. For what it is worth, I both agree with your practical point, and find a perhaps casuistic distinction helpful in pithily giving that point its full due in discussion. The distinction is that between determinacy and uncertainy. The former is a metaphysical category, the latter an epistemic one. It seems to me that even when one accepts determinacy in respect of the 'facts of the matter' grounding legal claims, one can nevertheless admit that many determinate facts are oftentimes difficult to ascertain. And such uncertainty is, practically speaking, a more important attribute than determinacy for most of the practicing lawyer's (and the would-be law-abider's) practical purposes. Judges' purposes, on the other hand, are different, and are such as to render the metaphysical category at least as important as, if not more important than, the epistemic one. The judge must admit to something very like determinacy, I think, for much the same reason that all of us must employ something much like a realist conception of truth. That is as what I suppose Putnam and followers would call a 'regulative ideal.'

Thanks again,
Bob

Publius the Clown said...

Drawing on what Professor Hockett says, and building on Professor Dorf's categories, I think that we should distinguish between three categories: 1) questions where the law is clear (e.g., the Constitution requires two witnesses to testify in support of a treason conviction); 2) questions where the law is not as clear, but where the answer is nevertheless determinate (e.g., the Constitution, interpreted correctly, does not require Lochnerian freedom of contract); and 3) questions where the law is in fact indeterminate.

With respect to questions in category 2 that the Supreme Court has not decided, we are metaphysically certain of the right answer but are epistemically uncertain as to what the Court's decision (and hence "the law," in the sense of the holding that will in fact govern the country) will be. That is, we know what the law should be but not what the law is.

In light of this, I don't think you're slighting Dworkin, Professor Dorf, when you say that the law contains gaps and ambiguities for judges to fill, because this statement doesn't preclude the possibility that every situation that doesn't fit into category 1 fits into category 2.

The closest you come to saying something outright anti-Dworkin comes when you say in your FindLaw column that some "borderline" cases are "indeterminate." Do you mean to say here that there are definitely some category 3 situations, or do you simply use "indeterminate" to mean epistemically uncertain in the category 2 sense? You suggest in your blog post that your claim is about how the law functions, which makes me think that you're primarily thinking about epistemic uncertainty.

For the record, if you are saying that category 3 situations do sometimes exist, I think you're probably right and Dworkin is probably wrong. (I'd have to think about it some more to be sure, and that's not the subject of your blog post anyway.) I'm just not sure whether you intended to make that claim, given that your main question in your blog post is whether your column contradicts Dworkin.

Bacon13 said...
This comment has been removed by the author.
Bacon13 said...

Either the “right answers” thesis is true or false. If the thesis is true, then, it does not seem that there should be widespread disagreement in properly reasoned judicial decisions unless we are willing to accept different solutions to 2+2. But judges do disagree; it is the sole fact of the matter here. So either judges are hopelessly wrong in their decisions or the thesis is false. If the thesis is false, then it seems deeply unsettling that judges would be operating under false beliefs or delusions of “right answers” regardless of the potential positive consequences from an externalist view. Does the justification of our legal system boil down to preserving belief in Santa Claus because we want the presents? Is there a way out of this seemingly grim situation that is not a shameless dodge?!