Friday, February 15, 2013

Requiem for a Hedgehog: Ronald Dworkin R.I.P.

By Mike Dorf

Ronald Dworkin died yesterday.  There will doubtless be a great many memorials written in his honor.  I knew him a little and greatly admired his work, which is not to say I agreed with all of it.  But I think that it's impossible to gainsay his importance as a thinker about law.  Here I'll record a few thoughts about some of Dworkin's most important ideas, exploring the relationship among them.

Principles Versus Rules: Dworkin's early work in academic jurisprudence took aim at H.L.A. Hart's version of positivism, which was then the leading model of law.  In The Concept of Law, Hart described law as a system of primary rules (rules that govern conduct of ordinary citizens) and secondary rules (rules that govern government officials), all grounded by an ultimate "rule of recognition," which is a widely observed convention that identifies the source of the law.  Hart's work falls within the great tradition of legal positivism, which dominated Anglo-American thought about law at least since Bentham.  Dworkin criticized what he called the "model of rules" in the work of Hart and other positivists.  Law does not just consist of rules that have an on/off character, Dworkin said, but also includes moral principles that have weight and that are not traceable to any formal authority.

Law as Integrity:

The job of a judge, Dworkin said, is to make the law cohere.  He does this by finding the decision that best "fits" the existing legal materials, where "fit" connotes continuity with existing sources of law (such as statutes and precedents) and "best" imports principles of political morality--at least to the extent that the authoritative sources do not at first blush lead to a clear answer, i.e., in hard cases.

Right Answers

But even in hard cases, Dworkin insisted that the law provides right answers.  Hart had said that in hard cases the law does not determine a unique answer but instead has an open texture.  In such cases, the positivist view is that the law leaves to the decision maker (typically a judge) discretion about what to do, including discretion to fill in the gap in the law.  Dworkin believed there were no such gaps and he cited the way in which judges characterize their practices in hard cases as the search for answers in the law, rather than as the exercise of discretion.

Reaction

Hart did not publish a response to Dworkin in Hart's lifetime but in a posthumously published Postscript to The Concept of Law, he did--and the Postscript is best read as narrowing the gap between Dworkinianism and Hart's brand of positivism (sometimes called "soft" positivism or, following Jules Coleman's terminology, "inclusive" positivism).  In the Postscript, Hart accepted that a particular legal system could satisfy his criteria and also include principles as well as rules.  He also accepted that a particular legal system could delegate to judges the Herculean task of making the law the best it can be in accordance with Dworkin's law as integrity.  In short, with one important exception to which I'll return momentarily, Hart thought that his own general account of law was sufficiently capacious to include Dworkin's account as one possible legal system.

To be sure, Dworkin thought that in order to accommodate a view like his own, soft positivism needed to be so soft as to sacrifice whatever virtues positivism is thought to have.  And he continued to think that what he characterized as real positivism--the notion that the law could be identified by reference only to authoritative sources--was not faithful to the way in which law actually functions.  But even if one thinks (as I do) that Hart's Postscript shows that it is possible to reconcile some important elements of Dworkin's view with positivism, there remains the important exception: Dworkin's view about right answers really is incompatible with positivism.

Hart's Postscript says that Dworkin's argument for the right answers thesis is naive.  Hart acknowledged that judges talk as though they look to the law for right answers in hard cases, but that this is a cover--that in truly hard cases they look outside the law.  This is a kind of legal realism, albeit of a modest sort.  In the body of The Concept of Law Hart offered a powerful critique of full-on legal realism.  In the Postscript he only endorsed it to the extent that he said that non-legal materials decide truly hard cases.

But here's where the rubber meets the road, for while it's true that Dworkin's early work grounded the right answers thesis in the self-described practices of judges, his later work connected the right-answers thesis to moral realism.  His book Justice for Hedgehogs offers a coherentist account of value as against Isaiah Berlin's value pluralism. (One might think that Dworkin's view that the law includes principles that have weight invokes a kind of value pluralism but the opposite is true: Because Dworkin thought that there is a single metric of value, he could trade off different values against one another, without succumbing to incommensurability.)  The crucial point here is that Dworkin thought that there are right answers in law because there are right answers in the domain of value.  His clearest statement of the position was in a 1996 essay in Philosophy & Public Affairs.  Increasingly, over time, what made Dworkin's view distinctive was his moral realism--his view that moral propositions have real truth value.

Although I consider myself a moral realist in the way that Dworkin was, I found one of his frequent arguments for moral realism quite unpersuasive.  He repeatedly would say that moral skepticism was self-defeating because the moral skeptic affirms that there are no moral truths, but this is itself a moral proposition.  To my mind this is just silliness. The proposition that there are no moral truths is a proposition of meta-ethics, not a proposition of morality.  Dworkin's argument against moral skepticism is a bit like someone saying that people who deny the existence of unicorns actually affirm the existence of unicorns because they use the word unicorn.

As I said, I'm a moral realist of the Dworkinian sort in the sense that when I say that slavery, murder and torture are wrong I mean that they are wrong, not just that I feel bad when they happen, or that they're wrong for me but are right for other people or other cultures.  But despite my agreement with Dworkin's moral realism, and despite my overall admiration for (indeed awe at) his body of work, I can't help thinking that the weight that his later work placed on moral realism was a wrong turn.

The great issues that divide people when it comes to matters of law and public policy are not questions of meta-ethics.  Progressives, conservatives, liberals, and libertarians all agree that values matter.  They disagree about which values matter most and about how to implement their values.

Because of the coherentism of his methodology, Dworkin is sometimes described as a kind of legal Rawlsian: In this view, Dworkin did for law what Rawls did for political theory.  But there is a very important difference.  Rawls saw political liberalism as necessarily bracketing comprehensive conceptions of the good, precisely because people disagree about the content of morality. He understood that even assuming that there are right answers to moral questions, we have no agreed-upon mechanism for coming to agreement on those right answers.  By contrast, Dworkin's later work appears to make comprehensive moral views central  to law and politics.  Accordingly, it seems less suited to serving as the foundation for a modus vivendi than does Rawls's thinner liberalism.

Having noted these areas of disagreement, I nonetheless want to affirm my overwhelming bottom line: Dworkin was a giant the likes of whom we won't soon see again.