Abstract
Many of Dworkin’s interlocutors saw his ‘one-system view’, according to which law is a branch of morality, as a radical shift. I argue that it is better seen as a different way of expressing his longstanding view that legal theory is an inherently normative endeavor. Dworkin emphasizes that fact and value are separate domains, and one cannot ground claims of one sort in the other domain. On this view, legal philosophy can only answer questions from within either domain. We cannot ask metaphysical questions about which domain law ‘properly’ belongs in; these would be archimedean, and Dworkin has long argued against archimedeanism. The one-system view, then, is best understood as an invitation to join Dworkin in asking moral questions from within the domain of value. Finally, I argue that Dworkin’s view can be understood as a version of ‘eliminativism’, a growing trend in legal philosophy.
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Notes
Ronald Dworkin, Justice for Hedgehogs (Cambridge: Harvard University Press, 2011), p. 405.
See Jeremy Waldron, ‘Jurisprudence for Hedgehogs’, NYU School of Law, Public Law Research Paper No. 13–45 (2013). Available at https://ssrn.com/abstract=2290309.; Mark Greenberg, ‘The Moral Impact Theory of Law’, Yale Law Journal 123 (2014); Scott Hershovitz, ‘The End of Jurisprudence’, Yale Law Journal 124 (2015), p. 2.
Ronald Dworkin, Law’s Empire (Cambridge: Harvard University Press, 1986), p. 93: ‘The law of a community on this account is the scheme of rights and responsibilities that … license coercion because they flow from past decisions of the right sort’.
For the semantic sting, see ibid., pp. 33–45; for later arguments against different descriptive approaches, see Ronald Dworkin, ‘Hart’s Postscript and the Point of Political Philosophy’, in Justice in Robes (Cambridge: Belknap Press, 2006), pp. 151–166.
See, e.g., Ronald Dworkin, ‘Objectivity and Truth: You’d Better Believe It’, Philosophy and Public Affairs 25(2) (1996).
For recent pieces making or rejecting some version of an eliminativist claim, see: Lewis A. Kornhauser, ‘Doing Without the Concept of Law’, NYU School of Law, Public Law Research Paper No. 15–33 (2015). Available at https://ssrn.com/abstract=2640605; Greenberg, ‘The Moral Impact Theory’; Hershovitz, ‘The End of Jurisprudence’; Liam Murphy, What Makes Law (Cambridge: Cambridge University Press, 2014).
Dworkin, Justice for Hedgehogs, p. 403.
Ibid.
Ibid.
Ibid., p. 7: ‘I believe that there are objective truths about value’.
Ibid., p. 9: ‘I defend…the metaphysical independence of value’.
Ibid., p. 1: ‘This book defends a large and old philosophical thesis: the unity of value’.
Hume, A Treatise of Human Nature 302., Book III, Part I, Section I; and Ibid., p.17.
Dworkin, Justice for Hedgehogs, p. 17. Dworkin elaborates the Humean position at ibid., pp. 44–46.
See ibid., p. 343, referring to ‘the crucial difference between the domains of fact and value that we have now several times noticed’.
Ibid., p. 41. Indeed, after he says that cosmology is a domain, he says ‘it is part of science more broadly understood’. Ibid. In what follows, I too will occasionally refer to the ‘moral domain’, but I intend this to be understood as a reference to the moral domain as a subdomain of the domain of value.
Ibid., p. 123.
Ibid., p. 12.
See Section IV, Against Metaphysics.
Dworkin, Law’s Empire, p. 93.
Ibid., p. 227.
On this point, see W.J. Waluchow, Inclusive Legal Positivism (Oxford: Clarendon Press, 1994). Chapter 3, ‘The Forces of Law’, argues that ‘the political morality embedded in settled law…figures importantly in all cases, hard and easy’. Ibid., p. 43. ‘In short, law just is an important part of political morality; it is not a set of special rules supplemented by political morality’. Ibid., p. 44. Dan Priel has also made a compelling argument that legitimacy is the core and starting point of Dworkin’s theory. See Dan Priel, ‘The Place of Legitimacy in Legal Theory’, McGill Law Journal, 57(1) (2011), pp. 22, 24. Legitimacy is always part of the inquiry for Dworkin, and ‘goes “all the way down” in easy cases as in hard cases’. Ibid., p. 29. This further ‘explains Dworkin’s claim that legal theory is properly understood as a branch of political philosophy’. Ibid. Similarly, Stephen Perry argues for an interpretation of Dworkin according to which ‘political and legal philosophy are inextricably connected’. Stephen Perry, ‘Associative Obligations and Obligation to Obey the Law’, in Scott Hershovitz (ed.), Exploring Law’s Empire: The Jurisprudence of Ronald Dworkin (Oxford: Oxford University Press, 2006).
Dworkin, Law’s Empire, p. 190.
As I will clarify below, there are also some questions about law which belong in the factual domain.
Dworkin, Law’s Empire, p. 98.
Ibid., p. 109.
Dworkin, Justice for Hedgehogs, p. 485, fn 4. The introduction to Justice in Robes might suggest that his view did change. He says ‘My discussion has so far not challenged the traditional understanding that “morality” and “law” name departments of thought that are in principle distinct, though perhaps interdependent in various ways’. Ronald Dworkin, Justice in Robes (Cambridge: Belknap Press, 2006), p. 34. He then suggests that we could understand things differently, and briefly sets out what would eventually be the one-system view in Justice for Hedgehogs: ‘We might do better with a different intellectual topography: we might treat law not as separate from but as a department of morality’. Ibid. This seems to suggest that the view in Justice in Robes is different from the view in Justice for Hedgehogs. But the foundational assumption is the same: we must understand law as genuinely justifying coercion. To start from that assumption is to place law within the moral domain already, whether or not Dworkin expresses this as the one-system view.
Dworkin, Justice for Hedgehogs, p. 402.
Ibid., p. 402, and see ibid., p. 486 fn 5.
Ibid., p. 402.
Dworkin, Law’s Empire, p. 33.
Ibid., p. 45.
Ibid., p. 90.
Ibid., p. 91.
See Joseph Raz, ‘Dworkin: A New Link in the Chain’, California Law Review 74(3) (1986), p. 1109: ‘I venture to suggest that Dworkin’s theory implies the acceptance of something that is at least like the Rule of Recognition as a necessary means for the identification of legal sources’.
Ronald Dworkin, ‘A Reply by Ronald Dworkin’, in Marshall Cohen, Ronald Dworkin and Contemporary Jurisprudence (New Jersey: Rowman and Allanheld, 1983), p. 254.
H.L.A. Hart, The Concept of Law (Oxford: Oxford University Press, 1994), pp. 242–243.
See, e.g., Ibid., p. 244–248; Michael S. Green, ‘Dworkin v. The Philosophers: A Review Essay on Justice in Robes’, University of Illinois Law Review 5 (2007); Dennis M. Patterson, ‘Dworkin on the Semantics of Legal and Political Concepts’, Oxford Journal of Legal Studies 26(3) (2006); Timothy A.O. Endicott, ‘Herbert Hart and the Semantic Sting’, Legal Theory 4 (1998): 283–300; Joseph Raz, ‘Two Views of the Nature of the Theory of Law: A Partial Comparison’, Legal Theory 4 (1998): 249–282, p. 276; Joseph Raz, ‘Can There Be a Theory of Law?’ in Martin Golding and William Edmundson (eds.), Blackwell Guide to Philosophy of Law and Legal Theory (Blackwell Publishing, 2004); Kenneth Einar Himma, ‘Ambiguously Stung: Dworkin’s Semantic Sting Reconfigured’, Legal Theory 8 (2002): 145–183.
Dworkin, ‘Hart’s Postscript’, p. 151.
Ibid., p. 152.
Ibid.
Ibid., pp. 153–154.
Ibid., p. 165.
Ibid., p. 166.
See above Section II A.
Dworkin, Justice for Hedgehogs, pp. 403–404.
Ibid., p. 404.
Ibid.
Ibid.
Ibid., p. 407.
Ibid., p. 405.
Raz says that Dworkin doesn’t argue for the normative approach, but simply assumes it: ‘The argument suffers from a crucial weakness; it assumes that law is necessarily moral, so that it follows that if the law is thus and so then one has different moral duties and rights than if it were otherwise’. Raz, ‘New Link’, p. 1114. This assumption, Raz says, is wrong. But this is precisely the issue: Raz thinks that there can be argument about whether law is properly conceived of as moral or not. It is this archimedean disagreement that I will argue below is spurious.
See Lawrence Sager, ‘Putting Law in its Place’, in Wil Waluchow and Stefan Sciaraffa (eds.), The Legacy of Ronald Dworkin (Oxford: Oxford University Press, 2016), p. 118: ‘Conceiving of law as a branch of morality is at least as loaded a beginning as it would be to embrace the two-system view and elect to treat the question of positivism versus interpretivism as situated in the domain of morality’.
Arthur Ripstein, ‘Introduction: Anti-Archimedeanism’, in Arthur Ripstein (ed.), Ronald Dworkin (Cambridge: Cambridge University Press, 2012), p. 5. See also Stephen Guest, Ronald Dworkin (Stanford: Stanford University Press, 2013). Chapter 7, ‘Objectivity in Law and Morality’, unpacks the arguments about objectivity and against archimedean skepticism that Dworkin has made throughout his career. Thomas Bustamante also defends a view of Dworkin that distinguishes it from Greenberg’s position precisely on the basis of Dworkin’s anti-archimedean and anti-metaphysical commitments. See Bustamante, ‘Law, Moral Facts and Interpretation: A Dworkinian Response to Mark Greenberg’s Moral Impact Theory of Law’, Canadian Journal of Law and Jurisprudence 32(1) (2019).
I have argued this point in depth elsewhere. See Hillary Nye, ‘Staying Busy While Doing Nothing? Dworkin’s Complicated Relationship with Pragmatism’, Canadian Journal of Law and Jurisprudence 29(1) (2016), 71–95.
See Dworkin, ‘Objectivity and Truth’, p. 88.
See, e.g., Dworkin, ‘Hart’s Postscript’; Dworkin, Justice for Hedgehogs.
Dworkin, ‘Hart’s Postscript’, p. 142.
Dworkin, ‘Objectivity and Truth’, p. 97.
Ibid., p. 100.
Ibid., p. 99.
Ibid., p. 127.
Ronald Dworkin, ‘In Praise of Theory’, in Justice in Robes (Cambridge: Belknap Press, 2006), p. 60.
Ibid. See also discussion of Dworkin’s dispute with Rorty in Nye, ‘Staying Busy While Doing Nothing?’, p. 74.
Dworkin, Justice for Hedgehogs, p. 155.
Ibid., p. 38.
‘Dworkin, ‘Hart’s Postscript’, p. 145.
Ibid. (emphasis added.)
Many analytic legal philosophers take themselves to be doing metaphysical projects. Scott Shapiro says: ‘Normative jurisprudence deals with the moral foundations of the law, while analytical jurisprudence examines its metaphysical foundations’. Scott J. Shapiro, Legality (Cambridge: Harvard University Press, 2011), p. 2. (emphasis in original.) Andrei Marmor understands his project as one of ‘metaphysical reduction’. Andrei Marmor, ‘Farewell to Conceptual Analysis (in Jurisprudence)’, in Wil Waluchow & Stefan Sciaraffa (eds.), Philosophical Foundations of the Nature of Law (Oxford: Oxford University Press, 2013), 209–229, p. 216; Jules Coleman says that the most fundamental question in legal philosophy is metaphysical; that is, he interprets the grounds of law debate as a metaphysical question. Jules L. Coleman, ‘The Architecture of Jurisprudence’, Yale Law Journal 121(1) (2011), pp. 61–62. Greenberg, talking about the determinants of legal content, says that ‘the determination relation with which we are concerned is primarily a metaphysical, or constitutive, one’. Mark Greenberg, ‘How Facts Make Law’, in Scott Hershovitz (ed.), Exploring Law’s Empire (Oxford: Oxford University Press, 2006), p. 226. Others talk about the ‘nature’ of law, which can be understood as a metaphysical inquiry: see Raz, ‘Two Views’, p. 251; Julie Dickson, Evaluation and Legal Theory (Oxford: Hart Publishing, 2001), p. 17.
I will pick up this thread further below, in Section V, where I will argue that there are multiple concepts of law, leading to a variety of questions we can answer, none of which is the metaphysical question about law’s true nature.
Dworkin, Justice in Robes, p. 223: The doctrinal concept states ‘what the law of some jurisdiction requires or forbids or permits’; the sociological concept is used ‘to describe a particular form of political organization’; the taxonomic concept classifies ‘a particular rule or principle as a legal principle rather than a principle of some other kind’; and the aspirational concept describes ‘a distinct political virtue’.
Dworkin, Justice for Hedgehogs, p. 405.
Dworkin, Law’s Empire, p. 111.
See section II C above.
Dworkin, Justice for Hedgehogs, p. 411.
Ibid., p. 412.
Ibid.
There is an interesting and related discussion in Dworkin, Justice in Robes, pp. 223–240. Dworkin says Raz might be best interpreted as engaged in taxonomic positivism. Taxonomic positivists are occupied with trying to draw a precise line around what properly counts as law. Dworkin says that this is not a worthwhile discussion. ‘It is of course important what we take to be relevant to deciding what legal rights and duties people and officials have. But nothing important turns on which part of what is relevant we describe as “the law”’. Ibid. We simply have ‘leeway in making that linguistic choice’. Ibid. This supports my view of the question as a verbal dispute, and Dworkin’s talk of ‘law’ as a matter of choice among a number of concepts.
Waluchow, Inclusive Legal Positivism, p. 43.
Ripstein, ‘Introduction’, p. 13.
Dworkin, Justice for Hedgehogs, p. 407. (emphasis added.)
This is not to deny that there can be distinct departments of value within the general domain of value. There is sense in distinguishing ethical questions from political/institutional ones, and along the same lines, it makes sense to say that there is a ‘legal’ domain within the domain of value. What I mean to deny here is only that there is some legal domain that would compete with the domain of value or the domain of fact, such that there could be ‘legal’ questions that did not resolve ultimately into moral or factual questions.
Once law is located within political morality, Dworkin asks ‘how that concept should be distinguished from the rest of political morality’. Dworkin, Justice for Hedgehogs, p. 405. His answer is that ‘[l]egal rights are those that people are entitled to enforce on demand, without further legislative intervention, in adjudicative institutions that direct the executive power of sheriff or police’. Ibid., p. 406. This might suggest that Dworkin ultimately is concerned with the correct categorization of law. But rather than seeing this as taxonomical – as genuinely interested in the proper categorization – it is better to interpret Dworkin as making a choice along the lines suggested above. This is a useful way to structure the conversation because it helps us to spell out the moral differences between the kinds of things we can claim to have enforced by courts and those we can only ask our legislature for. (See the distinction between legal rights and legislative rights in ibid., p. 406.) But the claim is not that this way of carving things up tracks the nature of reality.
Hershovitz, in ‘The End of Jurisprudence’, argues explicitly for eliminativism, as does Kornhauser in ‘Doing Without the Concept of Law’. Greenberg, in ‘The Moral Impact Theory of Law’, might be interpreted as coming close to eliminativism, if not wholly embracing it. Murphy, on the other hand, argues against eliminativism in What Makes Law, but in so doing, provides a nice elucidation of what it might entail.
Kornhauser, ‘Doing Without the Concept of Law’, p. 3.
Ibid., p. 15.
Ibid., p. 27. Waldron also provides a reading of Dworkin’s position that brings it close to eliminativism. Waldron, ‘Jurisprudence for Hedgehogs’, pp. 13–16.
Kornhauser, ‘Doing Without the Concept of Law’, p. 27.
Murphy, What Makes Law, p. 4.
Ibid., p. 77.
Ibid.
Dworkin, Justice for Hedgehogs, p. 407.
Ibid., p. 408. At least, they are both moral questions as framed by Dworkin, given his starting point. There are, as mentioned above, some questions about law that belong in the domain of fact, but these are not Dworkin’s questions.
Ibid., pp. 408–409.
Ibid., p. 412.
Dworkin himself says it is unhelpful to debate whether judges really find or make law: Dworkin, Law’s Empire, p. 225.
The idea that morality is really the fundamental issue here, that morality determines what we should do, is, Waldron argues, very close to Raz’s position. Waldron, ‘Jurisprudence for Hedgehogs’, pp. 17–20. This is surprising, given that Raz and Dworkin are supposed to be on opposite poles of the jurisprudential landscape. But there remain differences: ‘unlike Dworkin, Raz thinks that there really is something, some thing – the law – which having been made displaces moral requirements’. Ibid., p. 19. This is the key: Dworkin denies that there is some thing called law whose boundaries we could correctly describe.
Dworkin, Justice for Hedgehogs, p. 406.
Ronald Dworkin, ‘The Model of Rules II’, in Taking Rights Seriously (Cambridge: Harvard University Press, 1978), p. 76. (Originally published as Ronald M. Dworkin, 'Social Rules and Legal Theory', Yale Law Journal 81(5) (1972))
Ibid., p. 75.
Ibid., p. 76.
Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1978), pp. 292–293.
Ibid., p. 293.
Dworkin, ‘Reply’ in Cohen, pp. 250–252.
Ibid., p. 263.
Ibid.
See Murphy, What Makes Law, pp. 87–88: ‘…the invitation to figure out the nature of law by thinking about what would make law seem best is fairly obviously deeply unappealing to anyone who has any kind of attraction to the positivist picture’.
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This paper has gone through many iterations, and has been improved by more people than I can thank individually. I am grateful to audiences and fellow participants at the following workshops for valuable comments: The Special Workshop on Metaphysics, Morality, and Interpretation in Dworkin’s Justice for Hedgehogs, at the World Congress of the International Association for the Philosophy of Law and Social Philosophy (IVR), at the University of Lucerne; the Julius Stone Institute of Jurisprudence, at the University of Sydney; The UCL-Yale Jurisprudence Symposium, ‘The Debate that Never Was? Hart, Dworkin and the Future of Jurisprudence’, at University College London Faculty of Laws; and the ‘New Directions in Philosophy of Law’ conference at the University of Oxford. I am also grateful to two reviewers for their astute feedback that greatly improved the paper. Finally, I wish to thank Lawrence Sager for indirectly inspiring me to write this paper by challenging my interpretation of Dworkin when I proposed it to him during a Q&A at a talk he gave at University College London.
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Nye, H. The One-System View and Dworkin’s Anti-Archimedean Eliminativism. Law and Philos 40, 247–276 (2021). https://doi.org/10.1007/s10982-020-09401-7
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DOI: https://doi.org/10.1007/s10982-020-09401-7