Dworkin's Argument Research Articles

The Differend of Justice: Violence and Redemption in Dworkin'sJustice for Hedgehogs

AbstractThis article uses Ronald Dworkin's argument for the unity of value to explore the redemptive core of modern legal order. Dworkin establishes a formal unity: all legal claims reside within a linked framework of moral justification. However, Jean-Francois Lyotard's concept of the differend exposes a lingering gap. Arguments within a moral universe do inevitably converge, but such unity is only possible due to the formative violence enactedbysuch orders. Dworkin hopes to provide the definitive statement against moral subjectivity, but in its purest form, he proves precisely the opposite. The lesson to draw from Dworkin's work is that ‘justice’ is ultimately only the means by which political orders categorize and thereby sustain their own formative acts of exclusion under the guise of offering their redemption.

Remarks on the Normativity of International Legal Rules and Global Constitutionalism

AbstractThe article reflects on the possibility of conceptualising the complex problem of the normativity of international legal rules, including in particular the phenomenon of “relative normativity.” The author utilises the critical potential of Ronald Dworkin's proposal for a new philosophy of international law to reflect on the classical accounts explaining normativity of international law. By building on Dworkin's argument, the author argues for a constitutional account of international law. The far‐reaching constitutional proposals may provide a more complex and coherent set of possible rationalisations of international legal rules. International law is in great need of a comprehensive theory that could better explain its normative character as well as its sources, and it is argued that international constitutionalism has the potential to serve this purpose.

Justice for Hedgehogs

<i>Justice for Hedgehogs</i>

DWORKIN'S INTERPRETIVISM AND THE PRAGMATICS OF LEGAL DISPUTES

One of Ronald Dworkin's most distinctive claims in legal philosophy is thatlawis aninterpretative concept, a special kind of concept whose correct application depends neither on fixed criteria nor on an instance-identifying decision procedure but rather on the normative or evaluative facts that best justify the total set of practices in which that concept is used. The main argument that Dworkin gives for interpretivism about some concept—law, among many others—is a disagreement-based argument. We argue here that Dworkin's disagreement-based argument relies on a mistaken premise about the nature of disagreement. We propose an alternative analysis of the type of dispute—what we call “seeming variation cases”—that Dworkin uses to motivate the idea of interpretative concepts. We begin by observing that genuine disagreements can be expressed via a range of linguistic mechanisms, many of which do not require that speakers literally assert and deny one and the same proposition. We focus in particular on what we call “metalinguistic negotiations,” disputes in which speakers do not express the same concepts by their words but rather negotiate how words should be used and thereby negotiate which of a range of competing concepts should be used in that context. We claim that this view has quite general theoretical advantages over Dworkin's interpretivism about seeming variation cases and about the relevant class of legal disputes in particular. This paper thus has two interlocking goals: (1) to undermine one of Dworkin's core arguments for interpretivism, and (2) to provide the foundations for a noninterpretivist alternative account of an important class of legal disputes.

Legislative Intent inLaw's Empire*

AbstractThis article considers Dworkin's influential argument against legislative intent in chapter 9 ofLaw's Empire. The argument proves much less than is often assumed for it fails to address the possibility that the institution of the legislature may form and act on intentions. Indeed, analysis of Dworkin's argument lends support to that possibility. Dworkin aims to refute legislative intent in order to elucidate his own theory of statutory interpretation. That theory fails to explain plausibly legislative action. Dworkin's argument does not refute legislative intent but instead suggests there is reason to think that the legislature is capable of intentional action.

ARCHIMEDEAN METAETHICS DEFENDED

Abstract: We sometimes say our moral claims are “objectively true,” or are “right, even if nobody believes it.” These additional claims are often taken to be staking out metaethical positions, representative of a certain kind of theorizing about morality that “steps outside” the practice in order to comment on its status. Ronald Dworkin has argued that skepticism about these claims so understood is not tenable because it is impossible to step outside such practices. I show that externally skeptical metaethical theory can withstand his attacks, thereby defending the possibility of this kind of metatheoretical method and showing that the additional objectivity claims still make sense as external claims. Four interpretations of the additional objectivity claims can still be understood externally: as secondary properties, as arguing for some form of causal correspondence, as explaining error, and under Blackburn's expressivism. In the end, Dworkin's argument can be turned against itself.

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

In an article entitled ‘Dworkin's Fallacy, Or What the Philosophy of Language Can't Teach Us about the Law’, I argued that in Law's Empire Ronald Dworkin misderived his interpretive theory of law from an implicit interpretive theory of meaning, thereby committing ‘Dworkin's fallacy’. In his recent book, Justice in Robes, Dworkin denies that he committed the fallacy. As evidence he points to the fact that he considered three theories of law—‘conventionalism’, ‘pragmatism’ and ‘law as integrity’—in Law's Empire. Only the last of these is interpretive, but each, he argues, is compatible with his interpretive theory of meaning, which he describes as the view that ‘the doctrinal concept of law is an interpretive concept’. In this Reply, I argue that Dworkin's argument that he does not commit Dworkin's fallacy is itself an example of the fallacy and that Dworkin's fallacy pervades Justice in Robes just as much as it did Law's Empire.

Forty Years On

Since the 1960's Ronald Dworkin has been arguing for a particular account of law that he believed was both explanatorily superior to the one offered by competing theories, and also the basis for normative arguments for producing right answers to legal questions. Justice in Robes collects Dworkin's most recent essays on this subject and thus provides the appropriate opportunity for assessing the legal theory of one of the more influential legal philosophers. In this Review I seek to offer a clearer account than appears in the book itself of Dworkin's project, and in this way offer a measured assessment of his work. My argument shows that there has been significant misunderstanding of Dworkin's project and that once it is cleared we can see that Dworkin's questions are not so far apart from those of other legal theorists. This approach has another benefit, as it ties together Dworkin's disparate discussions in Justice in Robes into a more coherent whole. Once the structure of Dworkin's argument is clarified, I move on to examine the details of his argument. Here, I argue, his arguments are often less convincing. Nevertheless, I argue, this need not lead us to wholesale rejection of his theory. I show how his ideas make more sense within a broader account of law that shows the limited but undeniable sense in which his arguments are correct, and inform our understanding of legal practice.

Confucian Ethics and "The Age of Biological Control"

Ronald Dworkin claims that if we are able to control our own biology, "our most settled convictions will . . . be undermined [and] we will be in a kind of moral free-fall." This is so because he takes moral convictions to be determined by the choices we make against a fixed biological background. It would seem that if Confucian ethics is grounded in ren xing (human nature) and if ren xing refers to a fixed biological background, then the Confucian moral agent will be in a state of moral free-fall in the age of biological control—that is, if Dworkin is right. We can try to read ren xing as a creative process rather than a fixed nature, but any such reading inevitably grounds ren xing in something else that is biological. There is a way out for Confucians: the Dworkinian choice/chance distinction that is crucial for morality can be relocated away from the boundary between free choice and fixed biology to the boundary between the choices that we make and the fixed background of tradition.

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

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.

Putting Meaning in its Place: Originalism and Philosophy of Language

Originalism has become the prevailing approach to constitutional interpretation, having legal scholars as diverse as Justice Antonin Scalia and Ronald Dworkin among its advocates. Current originalists advocate fidelity to constitutional text, but disagree about what such fidelity requires. To settle these disagreements, it seems natural to expect originalists to employ (at least implicitly) conclusions and arguments from philosophy of language. Ronald Dworkin does just this to argue against other originalist interpretations and to advocate what he calls a moral reading of the Constitution. I argue that Dworkin's arguments for his moral reading of the Constitution are inconclusive because (and to the extent that) they employ unwarranted philosophical assumptions about how to interpret texts. As a result of these deficiencies, the originalist position outlined by Dworkin unexpectedly collapses into the position of his most vociferous originalist rival, Justice Scalia. My aim is to show not only that Dworkin's argument leaves Scalia's method of constitutional interpretation unscathed, but also that Scalia's method should be the starting point for anyone concerned with fidelity to the Constitution.

Autonomy, constraining options, and organ sales.

Although there continues to be a chronic shortage of transplant organs the suggestion that we should try to alleviate it through allowing a current market in them continues to be morally condemned, usually on the grounds that such a market would undermine the autonomy of those who would participate in it as vendors. Against this objection Gerald Dworkin has argued that such markets would enhance the autonomy of the vendors through providing them with more options, thus enabling them to exercise a greater degree of control over their bodies. Paul Hughes and T.L. Zutlevics have recently criticized Dworkin's argument, arguing that the option to sell an organ is unusual in that it is an autonomy-undermining "constraining option" whose presence in a person's choice set is likely to undermine her autonomy rather than enhance it. I argue that although Hughes' and Zutlevics' arguments are both innovative and persuasive they are seriously flawed--and that allowing a market in human organs is more likely to enhance vendor autonomy than diminish it. Thus, given that autonomy is the preeminent value in contemporary medical ethics this provides a strong prima facie case for recognizing the moral legitimacy of such markets.

Policy, Principle, and Incrementalism: Dworkin's Jurisprudence of Race

For several decades, Ronald Dworkinhas been one of the most prominent voicesdefending the legality and justifiability ofrace-conscious programs aimed at undoing thecontinuing effects of prejudice. Writingwithin the framework of a liberal legalphilosophy, he has formulated powerfularguments against the view that color-blindpolicies are the only defensible ones. Nonetheless, I argue that a more completeliberal defense of race-conscious policieswould need to develop and modify Dworkin's lineof argument. Such a defense would go beyondhis policy-based arguments and incorporatearguments of principle. Race-conscious policiesdo not only promote the general good; they arealso required in order to help realize theconstitutional right of equal citizenship.

Republican Government and Judicial Restraint

In his article, Epistemological Skepticism, Hobbesian Natural Right and Judicial Self-Restraint, Sotirios Barber develops his thesis that principle of judicial self-restraint has no place in any theory that takes the Constitution seriously as law (Review of Politics 48 [1986]: 394). He does this by responding to two different sorts of arguments given to support judicial restraint, Hobbesian natural right as developed by Walter Berns and epistemological skepticism as developed in my criticism of Ronald Dworkin (Reconsidering Dworkin's Case for Judicial Activism Journal of Politics 46 [1984]: 503-519). I wish to respond to the latter argument. In my critique, I accepted Dworkin's point that fundamental constitutional concepts point to a reality that is separate from the various conceptions that framers of the document may have held. What is authoritative is the reality to which the concepts point, not the framers' particular conceptions of it. (To be sure, the opinions of the framers deserve to be honored, but that is because these opinions are wise, not just because they are old.) Dworkin took this point to support judicial activism, that is, judges should void laws that offend their sense of principles required by the broad constitutional doctrines (Dworkin, Taking Rights Seriously [Cambridge, MA: Harvard University Press, 1977], p. 137). I argued that this point, when coupled with the Constitution's principle of republican government, better supports judicial restraint: A judge should uphold laws that offend his own sense of the Constitution, jfhe cannot be confident of his own sense f, that is, he would have to admit that his own sense of the Constitution's meaning just might be wrong and that of republican government, as manifest in the law, just might be right. (To the extent possible here and in my critique of Dworkin, I have tried to keep distinct the two questions of constitutional meaning and range of permissible judgment allowed to the political branches of government, maintaining that the question of activism and restraint should mostly concern the latter. See Brubaker, Reconsidering Dworkin's Argument, pp. 504-505.) As Barber observes, this argument for restraint does not suffer (or more accurately stating his position, does not appear to suffer) the debilitating skepticism that affects many theories, but depends

Epistemologieal Skepticism, Hobbesian Natural Right and Judicial Self-Restraint

Ronald Dworkin has shown that the doctrine of judicial self-restraint, although packaged as a defense of constitutional tradition, is grounded in a legalmoral skepticism that either inadvertently or covertly rejects the possibility of a genuinely normative constitution. The influence of Dworkin's argument challenges exponents of judicial self-restraint to show that their position is consistent with constitutionalist assumptions. This paper considers two attempts to meet that challenge. One defends restraint on epistemologieal grounds; the other on a substantive theory of natural rights. Together, these attempts constitute a comprehensive and systematic attempt to justify restraint within constitutionalist assumptions. Their failure indicates that the doctrine of restraint can form no part of a normative theory of the Constitution.

Reconsidering Dworkin's Case for Judicial Activism

Dworkin's argument in favor of judicial activism is original, influential, and apparently powerful. While Dworkin does avoid virtually all the weaknesses of other advocates of judicial activism, the strength of his argument is only apparent. Beneath the surface lie several serious flaws. When these are corrected, what remains is in fact a powerful argument, but it is an argument for judicial restraint, not activism.