Reply to Critics of "The Problematics of Moral and Legal Theory"

Abstract

The Review is to be commended for having assembled so formidable an array of distinguished scholars well qualified to criticize my Holmes Lectures. Nussbaum is a leading normative moral philosopher (what I call in the Lectures an moralist), with a side interest in law. Dworkin is also a distinguished academic moralist, but in addition he is the leading scholar of jurisprudence in the Englishspeaking world and a prominent constitutional theorist. Dean Kronman has a background in moral philosophy that has informed most of his influential academic writings. And Justice Fried and Judge Noonan are probably the most distinguished living judges who, before ascending the bench, made important contributions as academics to both jurisprudence and moral theory. Those who think, as I do, that John Stuart Mill was correct when he said in the second essay in On Liberty that no position can be confidently affirmed until it has been tested in the fires of hostile criticism' will understand the importance of my five critics' Responses and of this Reply to a proper evaluation of my Lectures. Having now read the Responses, I am more confident of the position taken in the Lectures, although willing to concede the need for amplification or correction in several particulars. The many disagreements among the five critics, their own criticisms of academic moralism and its applicability to law, the vulnerability (which I shall try to demonstrate) of their arguments, the defensive cast of some of the Responses and the scornful tone of the others, their sheer length, and their failure (with the very partial exception of Dworkin's Response) even to attempt to demonstrate how moral reasoning can actually convince doubters or aid judges reinforce my belief in the essential soundness of the Lectures.