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Thursday, August 03, 2006

If a Tree Falls in a Forest. . . .

Larry Solum has highlighted a new article by Michael Steven Green (William & Mary) in which Professor Green responds to a passage in Ronald Dworkin's Justice in Robes in which Professor Dworkin in turn had responded to an earlier criticism by Professor Green.   I will get back to Larry's insight in a moment.

To use a baseball analogy  (I'm from Detroit so it's on my mind), for me, reading this debate (which is densely jurisprudential) is like watching the stars battle in The Show (the Major Leagues) from somewhere in Class A.   I think  I understand what's going on here,  and have even tried to weigh in on it in a couple articles (here and here), but to mix my metaphors, see the title to this post.  (That sounds self-pitying; it's not.  I've learned much from Professor Green; he has a wonderful article that explains Hans Kelsen's Pure Theory of Law.)

I want to pick up on Larry's comment "I must say it is hard to pin Dworkin down" because I've had the same reaction.  The Dworkin-Green debate  is the stuff of classic "what is law?" jurisprudence.  To Dworkin, it is anathema that law qua law be devoid of moral content - hence, the decades long debate with the positivists, from H.L.A. Hart on.  If I can boil this down, Dworkin is picking up on modern philosophy of language in which it is posited that words do not have inherent meaning; meaning is a matter of shared attribution of concept to verbal symbol.  Professor Dworkin seems to be arguing that in using the shared language of law, there is also a shared moral understanding inherent in the use of the verbal symbols.  And that is what Professor Green identifies as the fallacy: the conflation of the two.  As he says in his conclusion:  "It is one thing to say that the content of the concept of law is revealed through reflection on the linguistic practice of using that concept.  It is quite a different thing to say - as Dworkin does - that the law of a jurisdiction is revealed through the moral interpretation of a jurisdiction's legal practices."

I have tried to argue that you can simultaneously be a positivist, believing that law can be law as a mundane or inglorious or even evil (like Nuremberg Laws) social structure, and not give up on the belief that there are some moral universals out there.  What Dworkin tries to do, again and again, is to import those moral universals into the law, I assume believing that law loses its what? majesty? integrity? if it does not grow out of, or incorporate, moral roots.

In Law as Rationalization, in which I was trying to get at the difference between our use of and response to law versus our response to ethics in a business context, I wrestled with what I thought was a similar conflation by Dworkin.  (He has not bothered to respond to it; but I'm not in  The Show!)  To Larry Solum's point, he is very hard to pin down.  In an article entitled "Objectivity and Truth:  You Better Believe It" (25 Phil. & Pub. Affairs 87 (1996)), Dworkin tried to tackle post-modern relativism, a project to which I am wholly sympathetic, by arguing there were objective moral facts, but that we (read: Dworkin) just know what they are in a quotidian way without having to resort to metaphysics.  Again, for a good Kantian, whether a moral proposition is objectively true is not even part of the game; that's the difference between using reason to access knowledge, and using reason to access a moral imperative.  There is no need to prove the latter is true.  But that seems to bother Dworkin immensely. 

So what he does is to posit a not-fully-post-modern thinker who believes in a  first order proposition like "murder is wicked"  but is skeptical  you can make a statement like "it is objectively and always the case that murder is wrong."  In the effort to establish the objectivity of the moral truth without resorting to metaphysics, it seemed to me Dworkin engaged in another fallacy:  to collapse the two propositions together, contending that because any moral proposition is making a claim that it is ipso facto an objective truth.  (This sounds reminiscent of the ontological proof of God - perfection implies existence - that Kant refuted.)  He doesn't so much refute the skepticism of the second proposition as much as simply to announce an alternative:  morality is so deeply imbued in us we ought to just accept it.  Essentially he is saying: accept a metaphysical reality without the bother of metaphysics.

Posted by Jeff Lipshaw on August 3, 2006 at 03:31 PM in Article Spotlight, Legal Theory, Lipshaw | Permalink


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Frank, I like the inherent paradox in the passage you quoted: the movement toward a goal you simultaneously know is unreachable.

Paul, I did not do justice to Green's article, and recommend it. As to Habermas, I think I understand what you are saying, and it does seem like a blurring of fact/value, but what it really sounds like is a blurring of process/result. If most of the game is how you resolve a breakdown in communicative action, and every non-violent, respectful, interpersonal exchange is "discourse" but you disagree completely with Habermas, he wins because you are having the civil discourse. But I don't find that particularly troubling; it seems to me that his conclusion that procedural discourse (as he defines it) is a thing good in itself regardless of the substance being disputed has a Kantian, or at least a transcendental, root.

So (a) I'm no Habermas scholar but I'll bet there are not many substantive points, beyond the inherent rightness of discourse, as to which he plays that trick, and (b) I don't think that's what Dworkin is doing. Dworkin is, I think, playing the post-modern radical skeptics back at them: in essence, "you say metaphysics is a waste of time and we can't be sure of any value; so fine, metaphysics is a waste of time, but we can be sure about this set of values." He and Dennis Patterson exchanged article in the Oxford J. Legal Studies in which the same thing went on with regard to "natural kinds" - a kind of sleight of hand, like the old trick of proving 1 = 2 (see below) in which you need to pull back the very, very thin veneer by which the flaw is masked.

We reduce very quickly in this debate to epistemology (how do we know what we know about facts or values), and while I think looking at something like Rossian intuition (see Law as Rationalization) is more "honest", I also acknowledge this is the kind of discussion that drives most lawyers (and normal people like my wife) to suggest we move onto to something useful, and drives many of those who think about these things to be pragmatists. A fair response by Dworkin to me (if he cared) would be that if he wants metaphysical reality without metaphysics, then what I seem to want is religious insight without acknowledging God.


(HT World Book Encyclopedia circa 1961)

Posted by: Jeff Lipshaw | Aug 4, 2006 8:38:28 PM

Professor Dworkin seems to be arguing that in using the shared language of law, there is also a shared moral understanding inherent in the use of the verbal symbols.

Oooh, that's interesting. I have a lot of sympathy with Dworkin but no really deep knowledge of his stuff (perhaps those two things go together?), so here's a cautious and tentative defense.

I don't think you have to hurl aside the fact/value distinction to make that move. Habermas and Karl Otto-Apel have this delightful trick called a performative contradiction that Habermas uses to defend a bit of discourse ethics. I like to think of it as the instant-win argument weapon, but I'm just melodramatic that way. The notion, as used by Habermas to defend discourse ethics (and speaking very loosely), is that people engaging in projects of justification are necessarily consenting to the moral presuppositions (mostly proceduralist ones) underlying the course of communicative action itself.

The defense of this appears in chapter three (four?) of Moral Consciousness and Communicative Action -- it seems to me that it might redeem at least this feature of Dworkin's case.

Posted by: Paul Gowder | Aug 4, 2006 10:17:33 AM

I think you're absolutely right about Dworkin trying to get us to "accept a metaphysical reality without the bother of metaphysics." It's rather like E.O. Wilson's argument about the good of biophilia (in Consilience), or Rorty's response to Posner in his recent UChi podcast: the fact/value divide is not so much bridged as dismissed.

Michael Perry has voiced some worries about this type of reasoning:


As for Dworkin's idea "morality is so deeply imbued in us we ought to just accept it"--I think one big problem for someone like Dworkin is thinking about how our conceptions of morality *change.* To my mind, someone like Alasdair MacIntyre has a better sense of the different *levels* of moral understanding we attain and enact, and how those understandings change (and hopefully would advance, ala Taylor's concept of "epistemic gains"). Here's a little excerpt from him which, while framed as a contribution to philosophy of science, appears to me to nicely crystallize the method he developed in Three Rival Versions of Moral Enquiry:

"When an epistemological crisis is resolved, it is by the construction of a new narrative which enables the agent to understand both how he or she could intelligibly have held his or her original beliefs and how he or she could have been so drastically misled by them. The narrative in terms of which he or she at first understood and ordered experiences is itself now made into the subject of an enlarged narrative. The agent has come to understand how the criteria of truth and understanding must be reformulated."


Posted by: Frank | Aug 3, 2006 5:51:47 PM

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