Ronald
Dworkin’s Justice in Robes is a thought-provoking collection of essays
that aim to answer the following question: "Do moral considerations figure
among the truth conditions of propositions of law and, if so, how?" (5).
Lawyers, judges, philosophers of law, and political philosophers agree that the
propositions of law have truth-value.  For instance, it is either true or
false that "American constitutional law permits the President to order
foreigners suspected of terrorism to be tortured" (2).  (What this
truth-value is is, of course, another matter.)  The controversial question that
Dworkin addresses and, ultimately, answers is whether the truth-value of such
propositions depends on substantive moral considerations.  According to Dworkin,
moral principles necessarily belong to the set of the truth-conditions for
propositions of law, and Justice in Robes consists of both critical and
constructive arguments for this claim.  Thus, on the one hand, Dworkin argues
against positions that divorce moral principles from the questions of the validity
of propositions of law, and, on the other hand, he attempts to show that such
divorce is in fact impossible.

At
the heart of Justice in Robes’ critical essays (which include "Pragmatism
and Law", "Moral Pluralism", and "Hart’s Postscript and the
Point of Political Philosophy") is Dworkin’s attack on what he calls the "Archimedean"
approach to legal theory and philosophy in general.  Archimedeans, Dworkin
argues, insist on the sharp division between two levels of discourse:  "the
discourse of non-philosophers reflecting and arguing about what is right or
wrong, legal or illegal, true or false, beautiful or mundane" and the "meta-discourse",
in which such claims are "classified and assigned to philosophical
categories" (141).  In law too, according to this approach, while lawyers
and judges engage in the first-level discourse concerning what is legal and
what is illegal, philosophers of law and political philosophers engage in the second-order
(or meta-) discourse concerning the status and the truth-conditions of these
claims.  Dworkin argues that the Archimedean approach is misguided.   What he
finds especially objectionable about it is that it aims to separate the normative
propositions (which, Archimedeans argue, belong to the first-order
discourse) from descriptive propositions concerning the status of the
lower-level normative claims.  Against such attempts, Dworkin aims to show that
there is no gap between the normative claims of what he calls an "interpretative
discipline" (such as law) and the descriptive claims of a corresponding
meta-discipline (such as philosophy of law).  On the contrary, Dworkin aims to
show, questions concerning the truth-conditions of the propositions of law
(questions that Justice in Robes addresses) are themselves normative questions
and thus demand answers in normative terms.

The
Archimedean approach lies at the bottom of the three quite different and,
according to Dworkin, equally misguided legal doctrines — legal pragmatism
(such as Rorty’s and Posner’s), legal positivism (such as Hart’s and
Coleman’s), and moral pluralism (such as Berlin’s).  What Dworkin
attempts to spell out is, first, the anatomy of each position and the source of
its commitment to the normative/descriptive divide and, second, the reasons why
the position is unsound.

Pragmatism,
Dworkin argues, is a paradigm case of the Archimedean approach to law and
philosophy in general.  For a pragmatist, the inquiry into "what the law really
is" is pointless (37).  Rather, we need to recognize that there is no
external legal reality which our inquiry refers to.  Instead, judges "should
decide the cases before them in a forward-looking, consequentialist style"
(21).  In other words, according to pragmatists, to suggest that objective
moral principles serve as the truth-conditions for the propositions of law (as
Dworkin holds they must) is to misunderstand the nature of legal discourse: 
propositions of law (or any set of propositions, for that matter) do not
refer to some external reality at all; therefore, our best guide as to what
legal claims to accept as valid is a "forward-looking" assessment of
what legal claims let us "get on" best, i.e., what legal claims serve
the common good.  This pragmatic approach to law, Dworkin argues, is "philosophically
confused" (23).  According to pragmatism, there is a fundamental
difference between two kinds of claims, e.g., (A) ‘Bestiality is illegal’ and (B)
‘It is an objective truth that bestiality is illegal’.  For
pragmatists, (A) is a true, normative claim the proper place of which is in the
first-order (non-philosophical) discourse.  On the other hand, (B) is a
meta-legal descriptive claim, a claim concerning the status of (A).  This
meta-legal claim, a pragmatist holds, is false since it claims that (A) is true
in virtue of its relation to some independent reality.  Dworkin, on the other
hand, argues that there is in fact no difference between (A) and (B) and that
the pragmatist is merely "trying to hijack [us] to some mystical
philosophical level" (43), the level that is supposed to transcend the
legal discourse and that is supposed to be accessible only to philosophers (as
theoreticians of law) but not to lawyers and judges (as practitioners
of it).  Instead, Dworkin maintains, all discourse concerning law
belongs to the same level, the level that is normative through and through, and
drawing a sharp line between (A) and (B) is nothing more than a "verbal
inflation" (42).

H.
L. A. Hart’s The Concept of Law (which Justice in Robes uses as a
case-study in legal positivism) is another version of Archimedeanism in
legal philosophy.  According to Hart and contrary to Dworkin’s view, questions
such as ‘What is law?’ and ‘What is a valid law?’ are descriptive questions
in the sense that they ought to be answered in terms of an analysis (rather
than a normative interpretation) of the legal practice.  Furthermore, Hart
argues that questions such as these are philosophical questions that ought
to be answered by theoreticians who deal with meta-theory rather than by
practitioners (lawyers and judges) who are engaged in the legal practice
itself.  Dworkin disagrees with both claims.  Hart’s theory, he argues, fails
to show that there can be a descriptive (non-normative) answer to questions
concerning what law is in general and what a valid law is in particular.  A
descriptive answer would be possible, Dworkin says, had the concept of law (and
of a valid law) been akin to the concept of a bachelor or even to the
natural kind concepts such as ‘gold’ or ‘tiger’.  Had there been
an agreement concerning the criteria for the concept’s intension (as it is with
‘bachelor’) or at least with respect to its instances (as it is with ‘tiger’)
such an analysis would be possible.  But ‘law’ (and ‘valid law’),
Dworkin claims, are "interpretative" concepts.  And if this is the
case, then appealing to the legal practice in order to clarify the concept of
law requires either taking an empirical route of collecting the data
concerning the actual legal practices across cultures and times or a rather
bold claim that such an empirical inquiry is superfluous since the convention
concerning ‘law’ and ‘valid law’ is fairly uncontested.  Dworkin shows that
Hart’s project does not satisfy either of these conditions:  on the one hand, The
Concept of Law (like other positivist treatises) does not support its conclusions
with adequate empirical evidence.  (This, however, is not its main failure
since Hart claims his project to be philosophical rather than sociological.) 
On the other hand, it is plainly false that ‘law’ and ‘valid law’ are
uncontested concepts:  continuous arguments concerning what law is and what valid
laws require show clearly that "there is no convention" concerning
constitutional law at all.  Thus, Dworkin concludes, apart from sharing the
faults of pragmatism, positivism also fails to show that a purely descriptive
answer to the fundamental legal questions is possible.

In
addition to pragmatism and positivism, moral pluralism challenges
Dworkin’s project in another way.  According to moral pluralism (as Berlin puts it) "it is a conceptual truth" about our values that they inevitably
come into conflict, "the collisions of values", therefore, "are
the essence of what they are and what we are" (105).  This view challenges
Dworkin’s position since, on Dworkin’s account, the questions concerning what valid
law requires can be approached and answered by appealing to general moral
principles.  But what if the fundamental moral principles themselves come into
conflict and come into conflict necessarily?  Berlin’s position, Dworkin
argues, is poorly supported and, ultimately, untenable.  In fact, Dworkin
claims that moral pluralism is yet another case of the generally indefensible
Archimedean approach to philosophy.  Berlin, Dworkin points out, famously
claims that two important political concepts — liberty and equality —
inevitably come into conflict.  This claim, however, rests on Berlin’s
understanding of liberty as "freedom from the interference of others in
doing whatever it is that you might wish to do" (112).  In response to
this, Dworkin argues that Berlin’s commitment to pluralism plainly follows from
Berlin’s own interpretation of the fundamental political values, the
interpretation that neither is the only one available nor (according to
Dworkin) is correct.  If we interpret ‘liberty’ in a different (Kantian) sense
of "freedom to do whatever you like so long as you respect the moral
rights of others" (112), then the conflict between liberty and equality
disappears.  Dworkin concludes that Berlin ought to have but failed to argue
for his particular interpretation of ‘liberty’ (and other concepts) to make a
good case for pluralism.  As Dworkin puts it, an argument for pluralism "must
show why the understanding of the value that produces the conflict is the most
appropriate one" (116).  The more general flaw of Berlin’s account,
Dworkin says, is still due to the Archimedean approach that it takes:  "the
project of analyzing what liberty really means, Berlin thought, must be pursued
by some form of conceptual analysis [of liberty, equality, etc.] that does not
involve normative judgment" (146).  This, of course, is precisely the sort
of analysis that Dworkin argues is conceptually impossible.

Dworkin’s
Justice in Robes is bound to interest and challenge any student of law,
philosophy of law, and philosophy in general.  While the essays most directly
address the question ‘What makes a proposition of law true or false?’
they contain a more general analysis of influential philosophical doctrines
such as pragmatism, positivism, and pluralism.  The lessons of Justice in
Robes, therefore, go beyond the field of philosophy of law and reach to the
areas of metaphysics, philosophy or language, ethics, and politics.

© 2006 Tatiana Patrone

Tatiana
Patrone will take a position this fall as Assistant Professor of Philosophy at Montclair State University, New Jersey.

Categories: Philosophical, Ethics