Does Dworkin Commit Dworkin's Fallacy? A Reply to Justice in Robes

Abstract

In Fallacy, Or What the Philosophy of Language Can't Teach Us About the Law, I described a common fallacy among philosophers of law, in which jurisprudential conclusions are misderived from semantic premises, and argued that the fallacy can be found in Ronald Dworkin's classic book, Law's Empire. Dworkin responds to my essay in his most recent book, Justice in Robes, where he claims that, rather than committing Dworkin's fallacy in Law's Empire, he took pains to warn against it. This paper is a reply to Dworkin. I argue that his response to my essay, far from showing that he did not commit Dworkin's fallacy, is itself an example of the fallacy. But this paper is also a critique of Dworkin's larger argument in Justice in Robes, for I claim that Dworkin's fallacy pervades his most recent book just as much as it did in Law's Empire. Dworkin repeatedly treats theories of law - both his own and his adversaries' - as if they were, or were entailed by, semantic positions. Because he succumbs to Dworkin's fallacy, his descriptions of his own views on semantic issues are unreliable, and I spend much of the paper teasing out what I believe is Dworkin's latent semantic theory.