Dworkin and the proper methodology of legal theory

Dworkin and the Proper Methodology of Legal Theory

On first blush, these claims appear to contradict the idea that Dworkin is defending the impartiality of legal interpretation. Dworkin asserts, in clear and strong terms, that legal interpreters must develop a theory of law as a prelude to any legal determination, and that this task requires them to make moral and political evaluations! If such is the case, how can Dworkin defend the impartiality of legal interpretation? Yet these claims are joined by some other assertions which, together, amount to a defence of impartiality. The examination of Dworkin’s claims, their defence of impartial legal interpretation, and the ultimate merit of that defence, proceed as follows: section I explains Dworkin’s methodological claims and his basis for making them; section II examines how Dworkin’s methodology seeks to defend the impartiality of legal interpretation (through an ancillary thesis); section III examines the merit of Dworkin’s methodological claims, concluding that these claims must be rejected; and section IV concludes by summarising both the failings of Dworkin’s methodological theory and the insights that it contains.

Dworkin and the Problem of Essential Contestedness

Dworkin’s celebrated Law’s Empire is launched with a rejection of the claim, made by legal positivism, that legal requirements are determined by criteria shared among legal practitioners (that is, by conventions).¹ Legal practitioners, says Dworkin, habitually disagree about which claims or propositions are legally valid, and about why they are: there are no shared criteria to be found here.² Yet if the question of what counts as a legally valid claim is not a question about conventions, what kind of question is it? Dworkin’s answer is this: it is a question about the best theory we have of what legal practice is about. The determination of what is and what is not legally valid is settled by appealing to the best theory of law we can get our hands on. This, says Dworkin, is what interpretive practices (of which legal practice is one) are about. When we are called to decide whether a certain conduct is or is not courteous – courtesy being another interpretive practice – our decision turns on the best available theory of what ‘courtesy’ is; and similarly, when we decide whether a certain proposition is or is not legal we turn to the best theory of what ‘law’ is. People hold different – indeed incompatible – understandings of these practices; and the true conception is the best one among those.

So what makes a conception ‘best’?

The Best Theory: ‘Fit’ and ‘Justification’

How are we to evaluate the merit of a conception? Dworkin’s test employs two dimensions: ‘fit’ and ‘justification’. Our best conception of an interpretive practice is the conception that best fits and justifies that practice. The dimension of fit is self-evident: to say that a conception must fit the practice is to say that it must account for many aspects of the practice generally believed to belong to that practice. For example, in order to be a good conception of the practice of courtesy, a conception must account for many – though not all – of the actions people consider to belong to the practice of courtesy (for instance, opening doors for people, or pouring drinks for others before filling one’s own glass).³ A conception of courtesy claiming that courtesy is a matter of paying homage to old age would presumably fail, because it cannot account for all those numerous instances generally believed to belong to the practice which have nothing to do with old age. There cannot be too many instances which a theory of the practice leaves unaccounted for: a theory presenting itself as an interpretation of a certain phenomenon cannot leave much of that phenomenon outside its scope. Dworkin puts this point in the following way: an interpretation ‘must fit enough [of the practice] for the interpreter to be able to see himself as interpreting that practice, not inventing a new one’.⁴

A conception does not need to fit all those instances generally believed to belong to the practice: the very possibility of formulating a coherent conception may require that not everything fit in. A good conception of courtesy may fail to fit the practice of taking people’s shoes off, even if people consider this the highest of courtesies.⁵ (Perhaps courtesy properly understood does not encompass acts perceived as subservient.) A conception of a social practice is not shown to be wrong by failing to account for all those instances or features commonly believed to belong to that practice. If I claim that marriage consists in a commitment to a long-term relationship, then a demonstration that certain marriages lack such a commitment does not prove me wrong. Theories in the social sciences may categorise instances as abnormal deviations – or simply as wrong. (A theory of legal interpretation may conclude, for example, that certain judicial practices constitute a departure from legal interpretation properly understood; that they constitute an error as far as proper legal interpretation is concerned; that they are not really instances of legal interpretation, even though they are generally believed to be.) Conceptions of social practices seek to pinpoint the essential features of those practices, and they may make claims about what instances belong (or do not belong) in the practice by virtue of these instances possessing (or lacking) the identified essential characteristics. Thus, they must fit some, but not all, those instances considered a part of the practice.

The second dimension of Dworkin’s test – ‘justification’ – consists of ‘putting the practice in its best light’. A conception of an interpretive practice, says Dworkin, must make the practice ‘the best it can be’.⁶ What does Dworkin mean by that? What kind of excellence are we talking about here? The best conception, says Dworkin, must show the practice as worthy of being pursued, as desirable rather than deplorable, as being good – and the more worthy or desirable or good it is, the truer our conception.⁷ (Indeed Dworkin sets his entire chapter on interpretation in Law’s Empire as a response to the objection that ‘interpretation tries to show the object of interpretation … as it really is, not as you suggest through rose-colored glasses or in its best light’⁸ – the response being that interpretation does seek to portray its object as the most desirable – as the rosiest – but this in fact shows it as it really is.) Of course, not all interpretations of interpretive practices are geared towards the same desirability: the interpretation of a literary work is geared towards a desirability that is rooted in the artistic literary domain, whereas the interpretation of legal practice is geared towards desirability that is rooted in the realm of political morality.⁹ Nevertheless, to put a practice in its best light is to portray it as the most desirable; and the best interpretation of an interpretive practice must put that practice in its best light.

Equipped with the twin requirements of fit and justification, the interpreter sets about her job by theorising the purpose served by the social practice whose conception she seeks. The interpreter need not look for a purpose that all practitioners have in mind when undertaking the practice (practitioners may disagree about what that purpose is); but the interpretation must hypothesise a purpose – as vague and abstract as may be – because certain inquiries seeking to understand social practices, including the kind of inquiry undertaken by legal philosophy, must approach their subject matter by seeking to understand the purposes or functions those practices serve.¹⁰ We can, of course, seek to understand social practices without recourse to their purposes or functions: we may understand them in certain behaviourist terms, for example, restricting our efforts to the attempt to formulate generalised rules of behaviour along the model of the natural sciences (which speak the language of regularities rather than the language of purposes). But then our interpretation would move away from an entire realm of meaning – the realm of meaning to which legal philosophy belongs. The positing of a purpose, says Dworkin, whether done explicitly or implicitly, is the ‘formal structure’ that any jurisprudential interpretation must have.¹¹ (This claim, I might add, seems to merit no controversy.) In short, the true conception of an interpretive practice is its best conception; and that best conception is the one which best fits the practice and puts it in its best light while hypothesising its purpose.

Why Best Light?

The answer to this question begins with the claim that legal practitioners seek to put legal practice in a desirable light when making legal determinations.¹² We expect the reasons for which a claim is recognised as legally valid to entail the worthiness of legal practice, not its wickedness. It sounds crazy for a judge or a lawyer to suggest that a legal claim is legally valid on grounds that this serves the interests of the rich: practitioners employ a desirable conception of the practice when making their legal determinations – not a wicked conception. If legal practitioners understand legal validity to be a function of desirable conditions, and they are the ones who make determinations of legal validity, it follows that any true understanding of the practice’s conditions of legal validity must be desirable.

Now this claim seems clear enough (even though it is false); but it does not address the following difficulty: even if we grant that practitioners’ own understanding means that a true conception of legal practice need present the practice as desirable, still it remains unclear why – as Dworkin claims – the true conception need present legal practice as the most desirable.

The ‘Most’ Desirable Conception

By virtue of what can such a claim – that the true conception of legal practice is the most desirable – be true? What can be the explanation for it? The claim seems to rest on the following suggestion: practitioners do not merely employ a desirable conception of legal practice when making legal determinations; they employ the most desirable conception of it. For them legal practice just is the best thing it can be. This would be the case, for example, if practitioners would change their legal determinations when presented with different determinations flowing from a more desirable account of legal practice.¹³ This suggestion engages the way practitioners practise their practice – it claims that practitioners practise law in accordance with the most desirable conception of law available to them; they identify the rights and duties flowing from the most desirable conception of law in making the determination that ‘such and such is the law’. This is the ‘interpretive attitude’ which Dworkin attributes to practitioners of ‘interpretive practices’: practitioners adopt the interpretive attitude when they determine the correct moves within the practice by seeking the most desirable account of that practice.¹⁴ Legal practitioners seek the most desirable conception of legal practice when making legal determinations.

This is why a conception putting legal practice in a bad light is for Dworkin a declaration that we can do nothing better with it. Dworkin does not rule out the possibility that the true conception of legal practice is unhappy; but he insists that an unhappy conception must demonstrate why a better conception cannot constitute the practice: ‘The internal sceptic [that is, the one offering an unhappy interpretation] must show that the flawed and contradictory account is the only one available’;¹⁵ an unfavourable interpretation succeeds only if there is ‘no [other] more favourable interpretation [which] fits equally well’.¹⁶ To repeat, this heavy burden with which Dworkin saddles critical interpretations of legal practice is supposed to arise from the fact that practitioners employ the most desirable interpretation available to them when making legal determinations. The demand that a critical interpretation demonstrate the unavailability of an equally fitting but more desirable conception is the other side of this coin.

It is this understanding which underlies Dworkin’s belief that ‘the contribution that a philosopher can make to political morality really is distinctive’: the conceptions (interpretations) developed and made available by philosophers for practices like law or democracy may determine what these practices really are. This picture has also much to do with Dworkin’s famous doctrine of the continuity of legal theory and practice – the idea that ‘jurisprudence is the general part of adjudication, silent prologue to any discussion at law’: legal theory (jurisprudence) develops conceptions of law which in turn determine legal rights and duties. Since there is no conventional understanding regarding what makes a claim legally correct, practitioners must resort (whether explicitly or implicitly) to theory construction in determining the content of law. Legal theory is a philosophical discipline which, in effect, shapes its own subject matter: ‘Interpretation folds back into the practice, altering its shape, and the new shape encourages further reinterpretation, so the practice changes dramatically, though each step in the progress is interpretive of what the last achieved.’¹⁷ The best light requirement derives from a thesis about the way practitioners determine what is required by their practice, coupled with the truism that their determinations shape and determine the character of the practice.

II     Objectivity, truth, and impartiality

I said that Dworkin – like the positivists he attacks – is committed to defending the impartiality of legal interpretation. Yet from what we have seen so far, Dworkin’s methodological claims seem to make impartiality altogether impossible: if legal interpretation necessarily involves an evaluation of what’s a desirable conception of law (as we saw, legal interpreters must first arrive at a desirable conception of law from which they then derive their legal determinations) then the use of moral preferences appears inescapable. But to his methodological assertions Dworkin adds another thesis – a thesis which purports to take away our concern over moral evaluations: moral determinations, says Dworkin, have one right answer! They are either correct or incorrect! Our fear, as Dworkin understands it, is that legal interpreters use considerations whose choice is in principle unjustifiable (mere ‘preferences’); but according to Dworkin, determinations concerning the desirability of legal conceptions are either true or false: the choice among them is always justified or unjustified as a matter of principle. The assessment of greater or lesser desirability is as much ‘true’ or ‘false’ – says Dworkin – as any empirical claim.

The argument for this claim, put forward in a series of articles, is essentially this: to say that judgments of morality cannot be ‘true or false’ or are not ‘objective’ (or cannot be justified ‘as a matter of principle’) is to use the notion of ‘objectivity’ or the notion of ‘truth’ in an odd and unintelligible manner.¹⁸ In fact, saying of a moral proposition that it is ‘really true’ or ‘objectively correct’ comes, properly understood, as a mere emphasis to the claim that we believe in such a proposition and we find it persuasive.¹⁹ The truth of a proposition is a function of the strength of the arguments supporting it: if the claim that slavery is morally wrong is supported by good moral arguments, then slavery is indeed truly and objectively wrong. End of story. It is silly to think that the choice among moral propositions is ‘in principle unjustified’: some moral propositions are better supported than others, and that is all that is needed in order to justify ‘in principle’ any proposition. So according to Dworkin, there are correct and incorrect moral propositions, and hence correct or incorrect evaluations of the desirability of a conception of law. What legal theory finds so disturbing in the use of preferences is that legal interpretation might employ considerations whose direct opposites might have been employed just as legitimately. But as far as choosing desirable legal conceptions is concerned, Dworkin claims that such choices are never a mere matter of preference.

However, this does not yet solve our problem, given some foundational modern thought involving the notion of ‘value pluralism’ – the idea that there are various moral values, and that moral determinations often involve equally valid compromises among those (for example, giving up some liberty in order to gain in equality, or giving up equality in order to gain in liberty).²⁰ Value pluralism implies that different and incompatible conceptions of law may be equally desirable, for they may represent different compromises of values the choice among which cannot be itself correct or incorrect (one conception privileges equality to the detriment of liberty, the other does the reverse). The reason why moral determinations are often a matter of preference is that it may be a matter of preference whether to privilege one value or another.²¹ (In other words, deciding which moral position is better supported by arguments may still be a matter of preference.) Dworkin’s response to this potential problem is quite remarkable: he simply asserts his belief in value monism – the idea that human values are all interdependent in such a way that an optimal moral determination may maximise all values (rather than comprise one possible compromise among them).²² In other words, according to Dworkin there is always an optimal moral determination which is uniquely true and correct.²³ Specifically to our point, the question of which conception of law is the most desirable has one correct answer.

I will not get into a critical examination of Dworkin’s claims regarding the meaning of ‘objectivity’ or ‘truth’ (though they seem to me wrong), nor of his value monism. (An examination of whether Dworkin’s claims, even if true, would alleviate the concern regarding impartiality is undertaken in Chapter 5, below.) I mention Dworkin’s claims in order to show that Dworkin is obviously concerned with the impartiality problem, and that he is anxious to show how his theory avoids it. Dworkin’s claims regarding the moral evaluations which legal practitioners must undertake in making their legal determinations are seconded by claims regarding the objectivity (hence, potential impartiality) of such moral determinations. Dworkin’s concern with the issue of preferences will become even clearer in our examination of his substantive theory of law.

The first objection to the best light requirement is that the desirability or undesirability of the conception of law underlying a legal claim is of no importance to practitioners assessing its legal validity. This objection, however, appears to be false: there is much that is true and insightful in Dworkin’s claim. Consider, for instance, the argument underlying the spectacular rise of the law and economics movement. Here a group of scholars began claiming that private law is best read as a scheme aimed at maximising economic efficiency, and that the correct legal requirements are therefore derived from such economic considerations. The claim was not framed in terms of what the law should be; the claim was framed as a thesis about what the law is: about what the correct legal rights and duties are – not what they ought to be. Yet despite the novelty of the claim (the doctrines and precedents upon which the claim was based, apart from some isolated exceptions, seemed to have paid little heed to economic considerations)²⁴ it was nevertheless quickly accepted by a large number of people. Lawyers, scholars, and judges soon began to claim that the content of the law was this or that because that content flowed from the conception of law as a scheme aimed at maximising economic efficiency: academic articles, court briefs, and judicial opinions all moved through the motions of economic efficiency in purporting to determine legal rights and duties. Now what can explain the success of the law and economics movement?

It is clear that the acceptance of this radical reinterpretation of private law was at least in part motivated by its promise to convert a notoriously problematic legal domain – with its persistent feel of moral subjectivity – into the (purportedly) technically dispassionate realm of economic calculations. What legal practitioners found so attractive in the economic analysis of tort law – above and beyond the obvious attractions of economic efficiency – was the idea that legal resolutions could turn ‘objective’: that judges no longer needed to dabble in the murky waters of ‘negligence’, ‘reasonableness’, or ‘due care’; that instead they could engage in the dispassionate calculations of information costs and self-insurance in making their legal determinations. Now the drive towards an ‘objective’ legal interpretation is a paradigmatic example of the drive towards a desirable conception of law. Hence, the law and economics movement rose to success thanks to the fact that legal practitioners consider the desirability of a conception of law as important to questions of legal validity.