"For three decades now, much of the Anglo-American legal philosophy curriculum has been organized around something called 'the Hart/Dworkin debate,' a debate whose starting point is Ronald Dworkin’s 1967 critique of the seminal work of Anglophone jurisprudence in the twentieth-century, H.L.A. Hart’s 1961 book The Concept of Law. Hart’s final word on that debate is now available to us in the posthumously published 1994 “Postscript” to The Concept of Law, while Dworkin has not published anything substantially new about the debate since his book Law’s Empire in 1986.
"The moment now seems opportune to step back and ask whether the Hart/Dworkin debate deserves to play the same organizing role in the jurisprudential curriculum of the twenty-first century that it played at the close of the twentieth. I am inclined to answer that question in the negative, though not, to be sure, because I can envision a jurisprudential future without Hart’s masterful work at its center. Rather, it seems to me--and, I venture, many others by now--that on the particulars of the Hart/Dworkin debate, there has been a clear victor, so much so that even the heuristic value of the Dworkinian criticisms of Hart may now be in doubt."
So I begin my paper on "Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence" (Download file here), which is appearing this fall in the American Journal of Jurisprudence, as part of a symposium on "Law's Moral Foundations: Has It Any?" (with other papers by Joseph Raz, Timothy Endicott, Matthew Kramer, and John Finnis--and Finnis responds in part to my paper, in particular, my criticism of his views). [Note: an earlier, and rather different version, of this paper appeared as a working paper on the SSRN network quite some time ago. The final version is quite different.]
What I say in the opening paragraphs constitutes the "received wisdom" among legal philosophers these days, though oddly it is little known outside those who work in jurisprudence, where Dworkin still looms very large (the explanation for that I leave to another occasion). Among significant legal philosophers, there are really only two--Stephen Perry at NYU and Nicos Stavropoulos at Oxford--who have offered important defenses of Dworkinian views; the rest of the landscape is populated by legal positivists of one kind of another, mostly Razians, many of those Raz students.
In this and subsequent postings, I want to examine some of the peculiarities of Dworkin's jurisprudential work (I will ignore his influential work on equality for these purposes) that have led to this state of affairs, i.e., that his views should be so relatively moribund among legal philosophers.
One longstanding difficulty has been Dworkin's inability to represent his opponent's views fairly. In the paper, above, I discuss this in connection with his original critiques of Hart, but the problem has actually gotten worse over time, as indicated by the bizarre and slightly unhinged polemic against legal positivism he recently published under the title, “Thirty Years On,” Harvard Law Review 115 (2002): 1655-1687.
Ostensibly a review of a book by Jules Coleman, the essay contains the astounding ad hominem accusation that what really motivates legal positivists (yes, he makes a claim about motivations!) is the desire to mark off “legal philosophy as an independent, self-contained subject and profession” which need not attend to “the academic study of substantive and procedural fields of law” or “normative political philosophy.” Id. at 1679. The accusation is made doubly bizarre by the fact that the very book he is reviewing contains a lengthy discussion of tort theory, while both Hart and Raz made major contributions to normative political philosophy.
Far more peculiar, though, is that this essay contains Dworkin's first extended, published reply to Joseph Raz's authority argument (the argument that a rule of recognition can only employ source-based criteria of legal validity since only such a rule of recognition is compatible with the law's claimed authority over us).
Bear in mind some context: Dworkin and Raz were colleagues at Oxford for three decades, and Raz's authority argument, which received its canonical articulation in a 1985 paper, has been perhaps the single most influential and discussed post-Hart contribution to legal positivism. Yet Dworkin has passed over it in silence, until now, in a book review essay (of someone else's book!) in which he devotes pp. 1665-1676 to Raz. And now here's the kicker: in his first ever published discussion, he manages to misstate Raz's views for ten pages, almost continuously.
So, e.g., Raz does not hold that “no proposition of law is true unless it successfully reports an exercise of legitimate authority” (id. at 1666) (a proposition can be a proposition of law even if it is not authoritative); he certainly does not make any “empirical assertion” to the effect “that every legal official believes that the laws he enacts create moral obligations” (id. at 1667) (the theory is conceptual, not empirical); Raz does not hold that “nothing is a law unless it meets all the necessary conditions of having legitimate authority” (id. at 1668) (law claims authority, but often does not actually possess it); Raz does not claim that “it is part of the very concept or essence of authority…that nothing can count as an authority if those putatively subject to it must engage in moral reflection to decide whether to obey it” (id. at 16973) (whether law has a justified claim to authority is different from the question whether we have an obligation to obey the law); Raz manifestly does not believe that “it would be a conceptual mistake to describe [“an exceptionally silly”] statute as law at all” (id. at 1673) (it would be a conceptual mistake to think that a directive is a legal directive if it could not even satisfy, in principle, the non-normative presuppositions of authority, but there are many valid laws that lack authority, and it would be a conceptual mistake to deny that); and so on.
I am aware of no instance in philosophical debate of recent decades in which one eminent figure has so utterly mischaracterized and misunderstood the views of another eminent figure in his field. (Philosophers: can you think of a comparable case?) That Dworkin was also Raz’s colleague at Oxford for decades makes these elementary confusions about Raz’s views all the more mystifying.
One reason, then, Dworkin's jurisprudential views are moribund is the exasperation so many of us feel at his inability to engage honestly with his opponents. At least in the case of his famous misrepresentations of Hart, the criticisms forced legal positivists to refine their views in constructive ways. But "thirty years on," these misrepresentations of Raz are just a pointless embarrassment.