By Mike Dorf
The recent 50th Anniversary issue of The New York Review of Books contains three wonderful nuggets for lawyers, law professors and the simply law-curious: (1) A marvelous interview with Justice Stephen Breyer on his love of French author Marcel Proust, in which Breyer reveals himself to be not only un homme de lettres but a person of deep feeling rather than the technocrat one might assume he is from some of his work on the Court; (2) a clear-eyed essay by David Cole in which he discusses what an end to the "war on terror" would require and look like, during the course of which he analyzes President Obama's May speech at the National Defense University and the excellent new book, What Changed When Everything Changed: 9/11 and the Making of National Identity by my soon-to-be-colleague Joseph Margulies; and (3) a posthumous essay by Ronald Dworkin, taken from remarks that Dworkin delivered in Rome last year on the occasion of his well-deserved receipt of the Balzan Prize for his "fundamental contributions to Jurisprudence, characterized by outstanding originality and clarity of thought in a continuing and fruitful interaction with ethical and political theories and with legal practices." With apologies to readers who don't subscribe to the NY Rev of Books and thus can't peer over the paywall, here I want to make a few points about Dworkin's essay and then connect it to one of the main arguments in Margulies' book.
Dworkin's essay is a summary of how his career led him from focusing on relatively concrete legal questions to quite abstract philosophical ones, a process he has elsewhere called "justificatory ascent." In a nutshell, it goes like this: Dworkin wanted to know the meaning of open-ended language in the Constitution (like "cruel" punishments and "equal protection"); he was unsatisfied with the answers given by legal positivists--either these terms are indeterminate so they simply provide interpreters with discretion or they can be made determinate only by reference to the concrete intentions and expectations of those who drafted them--so he concluded that the seemingly moral language of the Constitution was best understood as invoking true moral principles; but this led him to confront the argument of moral skeptics and expressivists that there is no such thing as a true moral principle, and so he became interested in and ultimately endorsed moral realism, the notion that moral statements do indeed have truth value; in the course of that journey he needed to think more broadly about the nature of truth, which led him to reject "scientism," the view that all propositions are true only insofar as they meet the test of truth as measured by the standards of science, in favor of a view attributable to philosopher Charles Sanders Peirce, which posits broader criteria for truth that cash out differently in different domains, including domains of value such as morality; secure in the belief that there are standards of truth in morality and thus law, Dworkin set out to apply them, which led him to ask what constitutes an individual life well lived, which in turn led him to confront the argument that the existence of physical laws makes free will, and thus ethical choice, impossible, an argument that he rejected as based on a misunderstanding of the consequences of a deterministic universe (if that is in fact the sort of universe we inhabit); he tied all of the domains of non-scientific value together under a single rubric, thus adopting the perspective of a "hedgehog" (in Isaiah Berlin's terminology).
Needless to say, this is all fascinating, and the posthumous essay merely summarizes the journey Dworkin charted over the course of his remarkable career. (For an affectionate and generally laudatory account of Dworkin's journey by a longtime Dworkin colleague, read Tom Nagel's still-more-recent essay in the latest NY Rev of Books, which is also, alas, mostly behind a paywall.) Nonetheless--and notwithstanding my enormous respect and admiration for Dworkin's work--putting it all out there in the single foregoing paragraph leads me to think that somewhere along the line Dworkin's jurisprudential journey took a wrong turn. To be sure, I agree with a great deal of what Dworkin says about particular subjects. I especially like his reliance on Peirce's pragmatism to ground moral realism, as against a relatively common view that begins with pragmatist principles and ends in moral skepticism or moral relativism. But at the end of the day I can't help but think that Dworkin's intellectual life journey was backwards or at best an engaging detour.
In the mid to late 1990s, Cass Sunstein wrote a series of articles describing the virtues of minimalism, including one on "incompletely theorized agreements." The core of the idea is that sometimes people can agree on a particular--e.g., Sheila is the best person for the job or the death penalty is too severe a penalty for the defendant--without agreeing on the ultimate reasons for that particular decision--in these examples, exactly what qualities make for the ideal job candidate or a theory of punishment.
Some critics of minimalism rightly noted that "thin" agreement has its limitations and Dworkin in particular argued for thicker, deeper justifications for legal interpretations in particular. But these criticisms often missed Sunstein's core point, which was not that thin justifications are superior to thick justifications but that agreement on a thick justification is often impossible--especially given what Jeremy Waldron (in a play on a term coined by Rawls) calls the "circumstances of politics," i.e., the inevitable fact of disagreement about fundamental moral propositions. If we are no more likely to come to agreement about meta-ethics, the nature of truth or free will than we are to come to agreement about such concrete questions as whether laws banning same-sex marriage deny the equal protection of the laws, then there is little point in arguing that disagreements about the more fundamental questions ultimately underlie our disagreements about the concrete ones.
For Dworkin, of course, whether society or legislators or judges come to agreement is largely beside the point because his model of legal interpretation and moral reasoning is highly de-institutionalized. His idealized judge Hercules decides cases on his own according to his own understanding of how to make the law the best it can be. Hercules does not need to persuade other judges, much less ordinary citizens, of the correctness of his views, because right answers are right answers regardless of how many people believe in them.
Perhaps in theory that's right, but it seems to me largely beside the point. Over a decade and a half ago, I wrote a review of one of Dworkin's books in which I criticized the idealized nature of Dworkin's enterprise in this way: Dworkin's writing addresses a metaphysical question--are there right answers in law and morality?--but our problem is a practical one. Given the circumstances of politics, what institutions should decide what questions (including morally laden legal questions) according to what procedures and substantive criteria? Dworkin's work says very little about that sort of quintessentially lawyerly question.
Cole's review of the Margulies book provides a useful contrast. Margulies argues that the American "creed"--the commitment to such gauzy ideals as liberty, equality and justice--is sufficiently malleable that it can be and has been used as a justification for repression, rather than simply serving as an engine for liberation and an ever-widening circle of justice. He discusses recent experience during the war on terror as well as older episodes in American history.
One can imagine a Dworkinian responding that the best understanding of liberty, equality and justice does not permit these concepts to be invoked in support of nativism, censorship and the curtailment of civil liberties, but that is not in fact how Cole responds to Margulies. Instead, Cole says (although the nature of a brief review does not allow him to give a full argument for the proposition) that the historical record supports a more optimistic reading--that in fact creedal language more often does produce progress towards what Dworkin and most contemporary liberals (including Cole, Margulies, Dworkin and yours truly) would regard as the "true" meaning of the American ideals.
But Cole rightly understands himself to be making a contingent historical claim, not a claim about meaning, because Margulies is also not making a claim about meaning. Margulies claims that Americans have, in different times and different eras, both sincerely subscribed to the same creedal language that we now embrace, while also engaging in practices that we now regard as fundamentally inconsistent with the creed. If he is right, then the creed is indeterminate in the sense that really matters--in its capacity actually to constrain the behavior of those who sincerely pledge allegiance to it. Here, as elsewhere, the problem is practical, not metaphysical.
Nagel surmises that Dworkin's moral realism inspired his rejection of positivism, and I suppose Nagel's right that there's at least a temperamental association between moral realism and Dworkin's jurisprudential views, but it's worth emphasizing that there is no contradiction between positivism and moral realism. (Nagel does not say otherwise.) One need not believe in anything like a complete separation of law and morality to worry that Dworkin's account of legal reasoning pays insufficient attention to the practical fact that judges, lawyers and citizens sometimes disagree about the content of morality. One still might think that in particular circumstances the law empowers judges to look to morality to fill in gaps in the law, but the positivist way of speaking about such circumstances--as exercises of judicial discretion--has always struck me as more appropriately modest than Dworkin's way of speaking about them. The broader point on which I wish to conclude, however, is more basic: Dworkin's long detour into metaethics and thence to metaphysics and beyond strikes me as quixotic, because positivism--the view he sought to undermine--never depended on any particular metaethical claims, either for or against moral realism.