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Ronald Dworkin and Duncan Kennedy represent arguably two opposing poles in legal theory. This paper offers a novel frame for reading their respective legal theories which reconceptualizes the traditional way in which they were opposed, and new ways to compare them, to understand their commonalities and their differences.
While Dworkin is taken to be a champion of a theory of rights, he is also associated with a certain theory of interpretation which holds that even in hard cases judges have limited discretion and a right answer to every legal question we might reasonably encounter. Kennedy, in contrast, seems to disagree with Dworkin in every conceivable respect such as the nature of law and legal reasoning, the role of right, the relation of law to its outsides (politics/ideology), thus questioning the objectivity and neutrality of legal reasoning, and he seems to be advocating what could be termed as a “radical indeterminacy” thesis.
The paper attempts reading Dworkin and Kennedy alongside each other, rather than in opposition, and so it deploys two interrelated strategies to establish such frame. One is concerned softening what appear to be rigid opposition through scrutinizing their writings, whereas the other takes stock of the common themes, presuppositions, images of law, and sensibilities that both share either explicitly or implicitly. This double strategy reveals the arguments that are attributed to them and which they themselves deny they are making. To that end, the paper unveils an unacknowledged shift toward phenomenology in legal theory that took place in the last few decades.
Thanks to Shai Lavie, Roy Krietner, Lewis Sargentich, Alon Harel, and mostly to Talha Syed who corrected some mistakes and encouraged me to publish.
1. Dworkin, Ronald, Taking Rights Seriously (Harvard University Press, 1978).
2. See other titles that have the structure “Taking (something) Seriously”: Galen Joseph, “Taking Race Seriously: Whiteness in Argentina’s National and Transnational Imaginary” (2000) 7:3 Identities; Julie Archambault, “Taking Love Seriously in Human-Plant Relations Rights in Mozambique” (2016) 31:2 Cultural Anthropology.
3. See Ronald Dworkin, “Hard Cases” in R Dworkin, supra note 1 at 81-130 [Dworkin, “Hard Cases”].
4. Ronald Dworkin, “Can Rights Be Controversial?” in R Dworkin, supra note 1 at 279-90 [Dworkin, “Can Rights Be”].
5. Dworkin, Ronald, “On Interpretation and Objectivity” in Dworkin, R, ed, A Matter of Principle (Harvard University Press, 1985) at 167-77 [Dworkin, “Interpretation”].
6. Ronald Dworkin, “Is There Really No Right Answer?” in R Dworkin, supra note 5 at 120-45 [Dworkin, “No Right Answer”].
7. Though Dworkin uses the term “constructive interpretation” in his book Law’s Empire, (Harvard University Press, 1986) at 52 [Dworkin, Law’s Empire]. Still this is not the reason to call him reconstructive. In the history of legal thought Dworkin would continue to be considered as pursuing a reconstructive project (responding to the Realist), even if he had not used the term ‘constructive interpretation’. (Thanks to Talha Syed for this clarification.)
8. See, for example, the writings of Pierre Schlag, who views Dworkin as the paradigmatic advocate of what he calls “normative legal thought.” For Schlag, the aim of normative legal thought is to develop a norm that is “complete, self-sufficient, discrete, separable, trans-situational, non-contradictory, and non-paradoxical.” See Schlag, Pierre, “Normativity and the Politics of Form” in Schlag, P, Smith, S & Campos, P, eds, Against the Law (Duke University Press, 1996) 29 at 39.
9. See Dworkin, Ronald, “Keynote Address” in François De Bois, ed, The Practice of Integrity: Reflections on Ronald Dworkin and South African Law (Juta, 2004) at 14 [Dworkin, “Keynote Address”].
10. See, Dworkin, Law’s Empire, supra note 7 at 225-75.
11. The distinction between policy and principles went through different phases, so while at one point Dworkin put both of them together in one line against rules, he later had to distinguish between them; thus, after putting them together he had to separate them. See Ronald Dworkin, “The Model of Rules I” in R Dworkin, supra note 1 at 14-45. It is in this essay, “The Model of Rules I”, where he argues that a principle is “a standard that is to be observed, not because it will advance or secure an economic or political or social situation deemed desirable, but because it is a requirement of justice or fairness or some other dimension of morality […].” Ibid at 22. But the distinction is further elaborated and developed in his essay “Hard Cases” where he argues that “[a]rguments of principle are arguments intended to establish an individual right; arguments of policy are arguments intended to establish a collective goal. Principles are propositions that describe rights; policies are propositions that describe goals.” Dworkin, “Hard Cases”, supra note 3 at 90. In Dworkin, Law’s Empire, supra note 7, the distinction between principles and policy is watered down.
12. This is a theme recurrent in Dworkin writings, but which appears mainly in his essays “Hard Cases”, supra note 3, and “Can Rights be Controversial?”, supra note 4, both of which were republished in Taking Rights Seriously, supra note 1. But Dworkin holds this position outside law as well and this is one of his critiques of philosopher like Isaiah Berlin who has a more tragic sense of conflicting values. See Dworkin, Ronald, “Do Liberal Values Conflict?” in Lilla, M, Dworkin, R & Silvers, Robert, eds, The Legacy of Isaiah Berlin (New York Review of Books, 2001) 73 at 90: “Perhaps, after all, the most attractive conceptions of leading liberal values do hang together in the right way. We haven’t yet been given reason to abandon that hope.” Dworkin warns against “any lazy conclusion that political values must conflict” and for him “the supposed conflict is an illusion, because on the best understanding of the two virtues, they are complementary.” See Ronald Dworkin, “Do Values Conflict? A Hedgehog’s Approach” (2001) 43 Ariz L Rev 251 at 259. Dworkin develops this position into a fully-fledged theory in his later book, Justice for Hedgehogs (Harvard University Press, 2011) [Dworkin, Justice for Hedgehogs]. For a critique of Dworkin’s position on the matter see, generally, Bernard Williams, “Liberalism and Loss” in M Lilla, R Dworkin & Robert Silvers, above in this footnote at 91-103 (defense of Isaiah Berlin’s concept of values pluralism).
13. These are almost the last words of Dworkin’s Law’s Empire, supra note 7 at 413.
14. Duncan Kennedy’s take on the defeasible nature of legal arguments can be found, among other places, in his paper “Semiotic of Legal Argument” in D Kennedy, ed, Legal Reasoning: Collected Essays (Davies Group, 2008) [Kennedy, “Semiotics”], where he seems to be trying to show that “[a]rgument bites come in opposed pairs”. Ibid at 90. Kennedy argued that “[r]ights discourse is internally inconsistent, vacuous or circular”. See Kennedy, Duncan, “Legal Education as Training for Hierarchy” in David Kairys, ed, The Politics of Law: A Progressive Critique (Basic Books, 1998) at 62 [Kennedy, “Legal Education”].
15. Kennedy may have used the term, but I have been unable to find a clear reference to it; nevertheless, the term does reflect the way his approach is perceived. See, for example, Altman, Andrew, Critical Legal Studies—A Liberal Critique (Princeton University Press, 1990). Altman characterizes both Critical Legal Studies (CLS) and Kennedy as having what he calls “radical indeterminacy”. Ibid at 15, 90-98. For a similar attack that interprets CLS and the work of Kennedy as “radical indeterminacy”, see Solum, Lawrence B, “On the Indeterminacy Crisis: Critiquing Critical Dogma” (1987) 54:2 U Chicago L Rev at 462.
16. As Kennedy argues, “[t]o many participants in American legal culture, rights reasoning seems no more plausible exclusive of ideological influence than more apparently open-ended moral or instrumental argument.” Kennedy, Duncan, A Critique of Adjudication (Harvard University Press, 1998) at 125 [Kennedy, Critique of Adjudication].
17. Kennedy argues that “[l]egal thought can generate plausible rights justifications for almost any result.” See Kennedy, “Legal Education“, supra note 14 at 62.
18. For Kennedy, “[d]octrine is not consistent or coherent. The outcomes of these conflicts form a patchwork, rather than following straight lines.” Duncan Kennedy, “The Political Significance of the Structure of the Law School Curriculum” (1983) 14:1 Seton Hall L Rev 1 at 15.
19. For the general theme of internal contradictions in law, see Kennedy, Duncan, “The Structure of Blackstone‘s Commentary” (1979) 28:2 Buffalo L Rev 205 [Kennedy, “Blackstone Commentary”].
20. See Duncan Kennedy’s take on rights in Critique of Adjudication, supra note 16 at 315-38. Kennedy is not the only one in the CLS who is skeptical of rights discourse. See also Morton Horowitz, “Rights” (1988) 23:2 Harvard Civil Right-Civil Liberties L Rev at 393-40; Mark Tushnet, “A Critique of Rights: An Essay on Rights” (1984) 62:8 Tex L Rev 1363.
21. For the nature of ideological work of adjudication according to Kennedy, see Critique of Adjudication, supra note 16 at 157-79.
22. See Kennedy, “Blackstone Commentary”, supra note 19 at 210. Kennedy adds that this mystification is made by “convincing them of the naturalness, the freedom, and the rationality of a condition of bondage” (ibid).
23. Kennedy writes: “The critical project within Liberalism itself has led us to lose any hope of an outside to which we could resort in order to have better way of doing official justice through reason. Reason is Felo Da se, dead by its own hand” in Duncan Kennedy, The Rise and Fall of Classical Legal Thought (Beard Books, 2006) at xxv [Kennedy, Rise and Fall]. For more on the death of reason narrative, see James Hackney, Legal Intellectuals in Conversation: Reflections on the Construction of Contemporary American Legal Theory (New York University Press, 2012) at 32-33 [Hackney, Legal Intellectuals].
24. See Desautels-Stein, Justin & Tomlins, Christopher, eds, Searching for Contemporary Legal Thought (Cambridge University Press, 2017).
25. Samuel Moyn, “Legal Theory Among the Ruins” in Justin Desautels-Stein & Christopher Tomlins, supra note 24 at 99-113.
26. Moyn, supra note 25 at 103.
27. Adrian, Vermeule, Mechanisms of Democracy: Institutional Design Writ Small (Oxford University Press, 2007) at 2.
28. Moyn, supra note 25 at 111. Moyn in this regard concurs with Roberto Unger’s view that the task of Critical Legal Studies should move from critique to reconstruction. Unger advocated this mission as early as 1985 in his book, The Critical Legal Studies Movement and recently updated his argument in the new version of the book: see Unger, Robert, The Critical Legal Studies Movement: Another Time, A Greater Task (Verso, 2015).
29. Here is a just a short list of the different takes on formalism: See, Kennedy, Duncan, “Legal Formalism” in Smelser, N & Baltes, P, eds, Encyclopedia of Social & Behavioral Sciences, vol 13 (Elsevier, 2001) 8634; Robert Summers, Form and Function in Legal Theory, A General Study (Cambridge University Press, 2006); Frederick Schauer, “Formalism” (1988) 97:4 Yale LJ at 509; Ernest Weinrib, “Formalism: On the Immanent Rationality of Law” (1988) 97:6 Yale LJ 949.
30. One might think that this picture belongs to history and that there are few who still hold this view. But see Antony Scalia on formalism: “The Rule of Law as a Law of Rules” (1989) 56:4 Chicago L Rev 1175. In one version of formalism the text is independent from the purposes, in another it is rules that are independent of reasons for the rules.
31. For a classical formulation about the contradictory nature of rules see Karl N Llewellyn, “Some Realism about Realism Responding to Dean Pound” (1931) 44:8 Harv L Rev 1222 at 1252.
32. See, for example, HLA Hart, “American Jurisprudence Through English Eyes: The Nightmare and the Noble Dream” (1977) 11:5 Georgia L Rev 969. Hart concedes the case for the realist that there are cases where rules run out, but he thinks that those are just few and that their significance is exaggerate or overstated, while on the other hand Dworkin underestimates the crisis and believes that law can too often—if not always—solve the problem at hand. See HLA Hart, The Concept of Law (Oxford University Press, 2012) at 124-51.
33. Ronald Dworkin, “Introduction” in R Dworkin, supra note 1 at 1. This is a theme that cuts through Dworkin‘s work from beginning to end. Early on in his introduction to his book Taking Rights Seriously, he writes right at the first page: “A general theory must be normative as well conceptual.” Ibid at i. Later in the same book he continues: “[b]ut if jurisprudence is to succeed it must expose these issues and attack them as issues of moral theory” (ibid at 7) and “[i]t remains for jurisprudence to construct the bridges between legal and moral theory (that supports that claim).” Ibid at 13. “If a theory of law is to provide a basis for judicial duty, then the principles it sets out must try to justify the settled rules by identifying the political or moral concerns and traditions of the community which, in the opinion of the lawyer whose theory it is, do in fact support the rules. This process of justification must carry the lawyer very deep into political and moral theory.” Ronald Dworkin, “Model of Rules II” in R Dworkin, supra note 1 at 67 [Dworkin, “Model of Rules II]. While writing on the nature of the approach in Constitutional law he advances a theory that this “[…] argues for a fusion of constitutional law and moral theory, a connection that, incredibly, has yet to take place.” Ronald Dworkin, “Constitutional Cases” in R Dworkin, supra note 1 at 149. Almost fifty years later he writes: “you see at once that jurisprudence or legal theory cannot be seen as an isolated discipline to be pursued, let’s say, in law schools independently from the rest of the university…then Jurisprudence cannot be seen as distinct from political philosophy or theory more generally….and my claim over the years has been that the separation cannot succeed and if we try to do it we impoverish both sides.” Dworkin, “Keynote Address”, supra note 9 at 4.
34. See Kennedy, Rise and Fall, supra note 23 at 27. For Kennedy, “legal Realism did to legal doctrine what we did to policy analysis.” Ibid. In this sense, he is a radicalization of the Realist for he views ideology and policy analysis itself as underdetermined. “Ideology can be highly influential. However, ideology is also full of gaps, conflict and ambiguities”. Ibid at 27. On the other hand, he argues that “[…] Dworkin appears as the heir and—in his own attack on semantic view of law, on originals, and passivism—as the developer of the legal realists.” Kennedy, Critique of Adjudication, supra note 16 at 121. The combination of these two statements allows us to read Legal Realism, Dworkin and Duncan along a continuous line, and Kennedy is a radicalization of the former.
35. “I argue that ideology influences adjudication, by structuring legal discourse and through strategic choice in interpretation”, ibid at 19.
36. “The first modification is to get rid of the idea that there is an objective boundary line we can draw between questions of law that have correct determinate answers and questions that can be resolved only through ideological choice.” Ibid.
37. “The economy was the ‘base’ and ideology was ‘superstructure’. Now people often think that we are saying that ideology is the base, and law is superstructure. NO…We do not believe that ideology is the base. We believe that things mutually affect each other and that each level has its resistance, its impenetrability, its opacity, none is simply a transparent reflection or product of another level.” Hackney, Legal Intellectuals, supra note 23 at 39. See also Karl Klare, “The Politics of Duncan Kennedy’s Critique” (2001) 22:3-4 Cardozo L Rev 1073.
38. See Dworkin, Law’s Empire, supra note 7 at 15.
39. Riggs v Palmer, 115 NY 506 (1889).
40. See Dworkin, Law’s Empire, supra note 7 at 3.
41. “The dispute about Elmer was not about whether judges should follow the law or adjust it in the interests of justice…It was a dispute about what the law was.” Dworkin, Law’s Empire, supra note 7 at 20.
42. My use of the term “always already” clearly has some reference to Heidegger’s use of the term. Heidegger refers to the idea that in the disclosedness of the world, beings are discovered, and the “being of these beings is always already understood in a certain way, although not appropriately conceived ontologically.” Martin Heidegger, Being and Time, edited and translated by Joan Stambaugh (State University of New York Press, 1996) at 186.
43. See Duncan Kennedy, “Introduction” in D Kennedy, supra note 14 at 4 [Kennedy, “Introduction”].
44. For further elaboration see below at 14-15 accompanying footnote 114 in particular.
45. See, for example, Hart, The Concept of Law, supra note 32 at 124 or Dennis Patterson, Law and Truth (Oxford University Press, 1996) at 95.
46. I refer mainly to his later writings such as his papers “Do Liberal Values Conflict?”, supra note 12, “Do Values Conflict? A Hedgehogs Approach”, “Keynote Address”, supra note 9, and his book Justice for Hedgehogs, supra note 12.
47. See Kennedy, Critique of Adjudication, supra note 16 at 18-20, 199-201.
48. Duncan Kennedy, “A Left/Phenomenological Alternative to the Hart/Kelsen Theory of Legal Interpretation” in R Dworkin, supra note 14 at 168; Kennedy, “Phenomenological Alternative”. (“Ideologies are indeterminate in just the way that legal order is.”)
49. Some interpreters see an important change between early Dworkin and late Dworkin; in this regard, see Jules Coleman & Brian Leiter, “Determinacy, Objectivity, and Authority” (1993) 142:2 U Pa L Rev at 214. Others stress the continuity between early and late Dworkin. See, for example, Stephen Gust, “How to Criticize Ronald Dworkin’s Theory of Law” (2009) 69:2 Analysis 352 at 356; Jeremy Waldron, “Did Dworkin Ever Answer the Crits?” in Scott Hershovitz, ed, Exploring Law’s Empire: The Jurisprudence of Ronald Dworkin (Oxford University Press, 2006) at 161.
50. In this regard both share a Hegelian impulse. According to this, the ‘whole’ and its elements reside in the ‘part’ such that the law as a field and doctrine contains within itself that which is otherwise discovered through the study of the whole of being, philosophy, religion etc., with its contradiction/non-contradiction, coherence/incoherence.
51. For such a reading of Dworkin, see Patterson, supra note 45 at 8 (where he suggests that the truth of legal proposition is dependent on the truth of moral propositions). Dworkin is not alone of course. Michael Moore could also be read in the same way.
52. For Waldron, for example, the need to separate law and morality does not depend on the fact that there is no moral objectivity in morality. Waldron, Jeremy, “The Irrelevance of Moral Objectivity” in Waldron, ed, Law and Disagreement (Cambridge University Press, 1999) at 164-87.
53. There is some shift in Dworkin‘s emphasis in this regard between his early work in “Hard Cases”, supra note 3, and “Can Rights Be Controversial?”, supra note 4, compared to his position in Law’s Empire, supra note 7 at 190, when he discusses the “[P]uzzles of Legitimacy”. The relation between the right answer theses is clearer in his early writings compared to his position in Law’s Empire. He argues that “a state is legitimate if its constitutional structure and practices are such that its citizens have a general obligation to obey political decisions that purport to impose duties on them.” Ibid at 191.
54. For Hart, indeterminacy is rare and at the margin and as such can’t threaten law’s legitimacy. See Hart, The Concept of Law, supra note 32.
55. For Coleman and Leiter, law in fact can be indeterminate and this indeterminacy can be pervasive (for Leiter more than for Coleman), but the issue does not threaten its legitimacy or threaten liberal legality, for what is important for our (their) purposes is predictability not determinacy, and law can be predictable while not necessary determinate. See Jules Coleman & Brian Leiter, “Determinacy, Objectivity and Authority” in Andrei Marmor, ed, Law and Interpretation (Oxford University Press, 1995) 203-79. In particular see 229-33. Coleman and Leiter draw attention to the fact that Dworkin and CLS actually agree as to the centrality of determinacy to the legitimacy of law. Ibid at 214-15.
56. In a series of papers and books Weinrib has been developing a theory of formalism that bypasses many of the problems associated with formalism as simply a matter of mechanical application of rules or determinacy. Drawing on the work of Kant, Weinrib severs the link between legitimacy and determinacy. “Kant would define legitimacy in terms not of predetermined correct answers but of subsumption under the concept of right…what matters for legitimacy is the conformity of public law to the imperatives of practical reason in its external aspect. Law’s moral force comes not from its determinacy but from its embodying the rational freedom of purposive being.” Ernest Weinrib, “Law as a Kantian Idea of Reason” (1987) 87:3 Colum L Rev 472 at 507. Not only that, but Weinrib understands indeterminacy as inherent in the Kantian project (which he thinks is the basis of our legal conception of law). As he writes: “[i]ndeed, indeterminacy is a necessary aspect of Kant’s legal conceptualism, something built into its foundations. Any conceptual system is necessarily indeterminate.” (At 505.) For the irrelevance of indeterminacy and its ineffectiveness attack on legal formalism, see his book The Idea of Private Law (Oxford University Press) 222-29.
57. Kress argues that “Determinacy appears to have limited relevance to legitimacy…determinacy is neither necessary nor sufficient for legitimacy”. Ken Kress, “Legal Indeterminacy and Legitimacy” (1989) 77 Cal L Rev 283, reprinted in Gregory Leyh, ed, Legal Hermeneutics: History, Theory, and Practice (University of California Press, 1992) 200 at 210-11.
58. Dworkin, “Introduction”, supra note 1 at xiv.
59. Dworkin, “Can Rights Be”, supra note 4 at 280.
60. Dworkin, “No Right Answer”, supra note 6 at 119.
61. Dworkin, “No Right Answer”, supra note 6 at 143.
62. Ibid at 144. Dworkin sometimes speaks in terms of likelihood: “The availability of this second dimension makes it even less likely that any particular case will have no right answer” [emphasis added]. Ibid at 143.
63. Hans Kelsen, Pure Theory of Law, edited and translated by Max Knight (University of California Press, 1967) [Kelsen, Pure Theory of Law].
64. Dworkin, “Interpretation”, supra note 5 at 167.
65. See Dworkin, Law’s Empire, supra note 7. Dworkin does not use the word ‘essence’ and focuses on purposes and goals: “Interpretation of works of art and social practices […] is indeed essentially concerned with purpose not cause […] Constructive interpretation is a matter of imposing purpose on an object or practice.” Ibid at 52. He adds that a “participant interpreting a social practice […] proposes value for the practice by describing some scheme of interests or goals or principles the practice can be taken to serve or express or exemplify” (ibid).
66. Ibid at 71-72. The concept/conception distinction was been already made by Immanuel Kant in his Grounding for the Metaphysic of Morals, where he writes: “Freedom and self-legislation of the will are both autonomy and hence reciprocal concepts. Since they are reciprocal, one of them cannot be used to explain the other or to supply its ground but can at most be used only for logical purposes to bring seemingly different conceptions of the same object under a single concept.” Grounding for the Metaphysics of Morals: On a Supposed Right to Lie because of Philanthropic Concerns, edited and translated by James W Ellington (Hackett, 1993) at 52.
67. For the importance of the distinction concept/conception in Dworkin see Brink, David, “Legal Interpretation, Objectivity and Morality” in Leiter, B, ed, Objectivity in Law and Morals (Cambridge University Press, 2001) 12 at 22-23.
68. Dworkin, “Hard Cases”, supra note 3 at 81.
69. Ibid at 104. The theme of responsibility is developed further in Dworkin’s book Justice for Hedgehogs, supra note 12 in the essay titled ‘Moral Responsibility’, where he writes that “the value of moral philosophy depends more on its contribution to responsibility than to truth.” Ibid at 121.
70. Dworkin, “Can Rights Be”, supra note 4 at 286.
71. Dworkin, “Hard Cases”, supra note 3 at 116.
72. For the distinction between speculative and practical reason in Kant, see Immanuel Kant, Critique of Pure Reason, edited and translated by Norman Kemp Smith (St Martin’s Press, 1965). See Kant’s discussion in the chapter ‘The Canon of Pure Reason’ at 630-44. See also ‘The Transcendental Doctrine of Method’, Chapter III, in particular at 657-60.
73. Kant’s writings regarding progress in history bear resemblance to his writings about freedom: progress in history is not something one can prove through theoretical reason, but nor can one can deny it. What one needs is heuristic evidence from history, like the case of the French Revolution, that history can progress. Our inability to deny that history is progressing combined with heuristic evidence from history that it can progress, may allow us to reconcile our practical interest and hope in history with our theoretical reason. Kant develops these ideas in the essays “Toward Perpetual Peace”, “The Contest of the Faculties”, and “Anthropology from a Pragmatic Point of View”. See Immanuel Kant, Toward Perpetual Peace and Other Writings on Politics, Peace and History, edited by Pauline Kleingeld, translated by David L Colclasure (Yale University Press, 2006). See in the same volume Allen Wood, “Kant’s Philosophy of History” in P Kleingeld & I Kant, ibid at 243-63. For a different view from Wood (who stresses the reconciliation of practical reason with theoretical reason) see Kleingeld, “Introduction” in P Kleingeld & I Kant, ibid at xx (who stresses that Kant’s philosophy of history is mainly “pure normative theory”).
74. Ernest Weinrib develops a whole thesis about law as an idea of reason in several papers: see Weinrib, Ernest, “Law as a Kantian Idea of Reason” (1987) 87:3 Colum L Rev at 472.
75. Dworkin, “Can Rights Be”, supra note 4 at 281.
76. “Shall we say that the judge must look for the right answer to the question….? Or is it more realistic to say that there simply no right answer to the question [emphasis added]?” Dworkin, “No Right Answer”, supra note 6 at 119.
77. Dworkin, Justice for Hedgehogs, supra note 12 at 121.
78. Dworkin, “The Model of Rules II”, supra note 33 at 68.
79. Dworkin, “Keynote Address”, supra note 9 at 2.
80. Dworkin, “Interpretation”, supra note 5 at 173. In this regard Dworkin is not unique. The idea of objectivity in moral opinions as being ‘susceptible to reasons’ is wide spread. For a review of McDowell’s position, see Brian Leiter, “Objectivity, Morality, and Adjudication” in B Leiter, supra note 67 at 78-83. See Gerald Postema, who holds a methodological view of objectivity whereby objectivity is basically publicity: when the judgment could be supported by giving reasons publicly, “[b]roadly speaking a judgment is correct, on this view, if its backed by sound reasons that are or can be articulated and assessed publicly.” Gerald Postema, “Objectivity Fit for Law” in B Leiter, supra note 67 at 117. See a recent reconstructive attempt in this direction by Rainer Forst in Rainer Forst, The Right to Justification: Elements of Constructivist Theory of Justice, translated by Jeffrey Flynn (Columbia University Press, 2012).
81. Take, for example, the distinction between ‘internal reasons’ and ‘external reasons’ developed by Bernard Williams. See Bernard Williams, “Internal and External Reasons” reprinted in Moral Luck (Cambridge University Press, 1981) at 101-13. Internal reasons seem to be valid only within a certain group that accepts certain basic assumptions, while they are not valid outside the group. If you are a shareholder in a company that deals with oil, and a new field of oil is discovered in Africa and someone in the company says: “we have to take over those fields, for that will increase the value of our shares”, then it is clear that raising the value of the shares is valid reason for shareholders. But it is a non-sequitur for those who are not. External reasons, on the other hand, seem to be valid for everyone: e.g., ‘we should protect the environment’. In a way, internal reasons could be thought as hypothetical imperatives, while external reasons as categorical ones. Dworkin seem to think that we have plenty of external reasons that are valid for everyone; otherwise it would be difficult to make sense of his theory.
82. Kant makes a distinction between determinate judgment and reflective judgment. Judgment in general “is the faculty of thinking the particular as contained under the universal”. Now “if the universal (the rule, the principle, the law) be given, the judgment which subsumes the particular under it…is [determining]. But if only the particular be given for which the universal has to be found, the judgment is merely reflective.” Immanuel Kant, Critique of Judgement, translated by James Creed Meredith, edited by Nicholas Walker (Hafner, 1951) at 15 [Kant, Critique of Judgement].
83. Kant makes a distinction between external, narrow perfect duties which belong to the domain of right—the legal domain—and duties of virtue, which that are wide, imperfect, internal duties. The first set can be formulated with exactitude, while the second retain some latitude in their performance. Still, both are categorical and allow no exceptions. Dworkin’s treatment of law, insofar as it includes principles, does in fact resonate with Kant’s treatment of virtue. See Immanuel Kant, Metaphysics of Morals, translated and edited by Mary J Gregor (Cambridge University Press, 2000) at 145-50.
84. Long before Dworkin, Hannah Arendt was inspired by Kant’s Critique of Judgment to develop what she takes to be Kant’s implied political philosophy. See Arendt, Hannah, Lectures on Kant’s Political Philosophy, edited by Beiner, Ronald (Chicago University Press, 1992).
85. Kant, Critique of Judgement, supra note 82 at 46. Kant adds “as regards the pleasant, therefore, the fundamental proposition is valid: everyone has his own taste (the taste of sense).” Ibid at 47.
86. Kant, Critique of Judgement, supra note 82 at 46.
87. Compare this to Kant: “There is no rule according to which anyone is forced to recognize anything as beautiful. We can’t press upon others by the aid of any reasons or fundamental propositions our judgment that a coat, or a house, or a flower is beautiful. People wish to submit the object to their eyes….and yet, if we then call the object beautiful, we believe we speak with a universal voice.” Ibid at 50.
88. Dworkin, “Interpretation”, supra note 5 at 167-80.
89. Ronald Dworkin, “Objectivity and Truth: You’d Better Believe it” (1996) 25:2 Philosophy & Public Affairs 87 [Dworkin, “Objectivity and Truth”].
90. Dworkin, Justice for Hedgehogs, supra note 12. See in particular chapters 2 and 6.
91. Dworkin, “Interpretation”, supra note 5 at 171.
93. Dworkin, “Objectivity and Truth”, supra note 89 at 98.
94. For an elaboration of Dworkinian anti-foundationalism, see Arthur Ripstein, Ronald Dworkin (Cambridge University Press, 2007). For a critique of Dworkin on the question of external skepticisms and values of meta-ethics, see Brian Leiter, “Objectivity, Morality, and Adjudication”, supra note 67 at 66.
95. “We need a social theory of law, but it must be jurisprudential just for that reason. Theories that ignore structure of legal argument for supposedly larger questions of history and society are therefore perverse […] This book takes up the internal, participants’ point of view; it tries to grasp the argumentative character of our legal practice by joining the practice and struggling with the issues of soundness and truth participants face.” Dworkin, Law’s Empire, supra note 7 at 14.
96. Dworkin, “Model of Rules II”, supra note 33 at 51.
97. Dworkin, “Interpretation”, supra note 5 at 174.
98. Dworkin, “Keynote Address”, supra note 9 at 2.
99. Dworkin, Justice for Hedgehogs, supra note 12 at 120.
100. Ibid at 121. It is very hard to miss the Kantian theme in this passage that resonates well with Kant privileging practical reason to theoretical reason. See Immanuel Kant, Critique of Practical Reason, edited and translated by Werner S Pluhar (Hackett, 2002) at 152-54. This priority was reframed in Kant’s Critique of Judgement, supra note 82: “No use of this concept is possible except its use for practical reason according to moral laws, and the final purpose of creation is that constitution of the world which harmonizes with that which alone we can put forward definitely according to laws, viz., the final purpose of our pure practical reason, in so far as it is to be practical.” Ibid at 306.
101. Some took Dworkin to be making postmodern arguments. See Brian Leiter, “Objectivity, Morality, and Adjudication”, supra note 67 at 77.
102. Dworkin, “Interpretation”, supra note 5 at 167.
103. Joseph Raz has launched such a critique: “there is no gap between ideal law and interpretation of exiting law. Under these conditions one can interpret the Constitution to mean anything at all. It can be read to mean the same as Shakespeare’s Hamlet.” Joseph Raz, “Dworkin: A New Link in the Chain” (1986) 74:3 Cal L Rev at 1103. From my experience in class, this is one of the impression students get from reading Dworkin—that it is all in the hands of the judge.
104. See Dworkin, Law’s Empire, supra note 7 at 45-65.
105. Dworkin, Law’s Empire, supra note 7 at 266.
106. Ibid at 47.
108. “Interpretation folds back into the practice, altering its shape, and the new shape encourages further [re]interpretation, so the practice changes dramatically.” Ibid at 48.
109. “We [w]ould then say that all interpretation strives to make an object the best it can be, as an instance of some assumed enterprise” [emphasis added]. Ibid at 53.
110. “Roughly, constructive interpretation is a matter of imposing purpose on an object or practice in order to make [of] it the best possible example of the form or genre to which it is taken to be[long] [emphasis added].” Ibid at 52.
111. “Creative interpretation, on the constructive view, is a matter of interaction between purpose and object [emphasis added].” Ibid.
112. Ibid at 258. Dworkin defends himself from this charge.
113. “The first is this: interpretation, on my account, really is no different from invention.” Dworkin, “Interpretation”, supra note 5 at 168.
114. Dworkin, Law’s Empire, supra note 7 at 227. Dworkin invokes this language mainly when he discusses integrity in general and in particular when he discusses integrity in law. “It aims rather to justify what they did in an overall story worth telling now” [emphasis added] (ibid) (discussing the role of law as integrity). “He must try to make this the best novel it can be construed […] That calls for an overall judgment on his part, or a series of overall judgments as he writes and rewrites” [emphasis added] (ibid at 229-30) (discussing the role of the novelist in the Chain Novel). “You must then ask yourself which interpretation makes the work of art better on the whole” [emphasis added] (ibid at 234). “Whether any interpreter’s convictions actually check one another, as they must if he is genuinely interpreting at all, depends on the complexity and structure of his pertinent opinions as a whole” [emphasis added] (ibid at 237). “Law as integrity, then, requires a judge to test his interpretation of any part of the great network of political structure and decisions of his community by asking whether it could form part of a coherent theory justifying the network as a whole.” [emphasis added] (ibid at 245). “Law as integrity has a more complex attitude towards departments of law. Its general spirit condemns them, because the adjudicative principle of integrity asks judges to make the law coherent as a whole.” [emphasis added] (ibid at 251). “The spirit of integrity, which we located in fraternity, would be outraged if Hercules were to make his decision in any way other than by choosing the interpretation that he believes best from the standpoint of political morality as a whole.” [emphasis added] (ibid at 263).
115. “A free or constraint judgment? The answer is plain enough: neither of these two crude descriptions—of total creative freedom or mechanical textual constraint—captures your situation, because each must in some way be qualified by the other.” Ibid at 234.
116. “We might say that in these examples the constraint is “internal” or “subjective.” It is nevertheless phenomenologically genuine, and that is what [is] important here.” Dworkin, Law’s Empire, supra note 7 at 235.
117. Ibid at 239.
118. For a very conscious ‘appropriation’ of intellectual traditions in the law see Duncan Kennedy, “A Semiotics of Critique” (2001) 22:3-4 Cardozo L Rev 1147. In the introduction to his Critique of Adjudication Kennedy puts it clearly: “This book is methodologically eclectic.” Dworkin, Critique of Adjudication, supra note 16 at 15.
119. Kennedy, “Semiotics”, supra note 14 at 12. There are almost no references in Kennedy’s work to Heidegger or Gadamer, but the association of interpretation and application is a strand of this intellectual heritage.
121. Ibid at 6-7.
122. Phenomenology has been there all along in Kennedy’s work—from the very start, and it is not a new discovery in his later work. He deploys it early on in his Rise and Fall and in his early on paper on “Freedom and Constraint in Adjudication”. Yet some of his early works are focused on the legal materials themselves, as in his paper “Blackstone Commentary”, supra note 19, or his early on paper Duncan Kennedy, “Form and Substance in Private Law Adjudication” (1976) 89:8 Harv L Rev at 1685-778 [Kennedy, “Form and Substance”]. Phenomenology becomes more and more dominant in his work and he distances himself from his early global “fundamental contradiction” thesis, without abandoning it completely.
123. As he mentions in his paper, he borrows the idea of work from Karl Marx and deploys it creatively on the legal materials themselves.
124. Kennedy, “Introduction”, supra note 43 at 3.
126. Despite the fact that Kennedy admits the influence of both Marx (the concept of work) and Husserl’s phenomenology (borrowing the concept of “epoche”), I still think that much of the insight comes from Hegel and Heidegger. Kennedy rejecting subjectivism and objectivism resonates with Heidegger’s collapsing the subject-object distinction into a totality of being: “Self and world are not two beings, like subject and object, or like I and thou, but self and world are basic determination of the Dasein itself in the unity of the structure of being-in-the-world.” Martin Heidegger, The Basic Problems of Phenomenology, translated by Albert Hofstadter (Indiana University Press, 1988) at 297.
127. One can argue that Kennedy’s argument could in many ways be read as taking the Kantian philosophy of the thing-in-itself, as it was reformulated by early twentieth century phenomenology, to its logical conclusion.
128. In Kennedy’s formulation “[t]he phenomenological account is supposed to persuade the reader that jurists often destabilize their initial experience of legal compulsion by legal work.” Kennedy, “Introduction”, supra note 43 at 3. At other times, the opposite happens: “The goal is to describe convincingly the way in which the judge’s personal convictions about justice enter into the decision process. They do so in my account, as what orients the direction of the judge’s work of interpretation.” Ibid at 4.
129. Ibid at 18.
130. Duncan Kennedy, “Freedom and Constraint” in D Kennedy, supra note 14 at 24.
131. Ibid at 18.
132. Kennedy, “Introduction”, supra note 43 at 4.
133. Kennedy, “Semiotics”, supra note 14 at 82.
134. Kennedy goes out of his way to distinguish his position from those positions based on theories of language or meaning like those of Derrida or Wittgenstein that perceive legal indeterminacy as just one particular case of the insight that “[n]o rule can determine the scope of its own application.” Ibid at 142-45.
135. “[F]rom my position inside the practice of legal argument, I can’t say anything one way or another about this fancy argument. I have no way of knowing, from inside the practice, why it is that sometimes the field gives way but sometimes refuses to budge at all. From inside the practice of argument, I just don’t know.” Kennedy, “Semiotics”, supra note 14 at 83.
137. Ibid at 84.
138. Ibid at 139. In a later piece he makes it even more clear by arguing that “CLS rejects both the idea of global indeterminacy and the idea that there is always a correct interpretation, however obscure or difficult to arrive at. But it also rejects the idea that determinacy and indeterminacy are ‘qualities’ or ‘attributes’ inherent in the norm, independently of the work of the interpreter.”Ibid at 160. Kennedy, “Phenomenological Alternative”, supra note 48, 153 at 160.
139. Kennedy, “Semiotics”, supra note 14 at 143.
140. See Kennedy, “Phenomenological Alternative”, supra note 48.
141. See mainly HLA Hart, The Concept of Law, supra note 32 at 124-54 (on rule skepticism); and Kelsen, Pure Theory of Law, supra note 63 at 348-56 (on interpretation).
142. “For CLS, the important point is that the anti-formalism of H/K presupposes the schema according to which every case is located either in the area of determinacy or in the penumbra or frame.” Kennedy, “Phenomenological Alternative”, supra note 48 at 157.
143. Duncan Kennedy & Peter Gabel, “Roll Over Beethoven” (1984) 36:1-2 Stan L Rev at 1. In this dialogue with Peter Gabel, Kennedy withdraws from his early ‘Fundamental Contradiction’ thesis and chooses rather a more minimalist internal local critique. He explains this retreat as being driven by a fear of overgeneralization of concepts that may lead to frozen and abstract theory, while expressing his distaste of privileged concepts that pretend to do all the analysis for us. In fact, it is about the same time that Kennedy publishes his long paper “Freedom and Constraint in Adjudication: A Critical Phenomenology”, supra note 130. It is telling that in a recent book that Duncan published that collects several of his articles titled Legal Reasoning: Collected Essays, supra note 14, (to which I refer very often in this paper), he chose not to include his text on Blackstone, nor his celebrated “Form and Substance”. This might have been for technical reasons due to the length of these papers, but I do think that there is more to it than that. Kennedy prefers the local, limited, phenomenological critique.
144. Kennedy, Rise and Fall, supra note 23 at xviii.
145. Ibid. Kennedy writes “[w]hat then can be said of the body of legal materials ‘itself’ considered in isolation from the particular context within which particular judges experience it? Not much.” Kennedy, “Freedom and Constraint”, supra note 130 at 60.
146. Kennedy, Rise and Fall, supra note 23 at Introduction.
147. Kennedy, “Form and Substance”, supra note 122.
148. Kennedy, “Blackstone Commentary”, supra note 19.
149. The immediate candidate for such a phenomenology is the one introduced by Hegel in the phenomenology of spirit. In fact, in many places one can discern many echoes of Hegel in Kennedy’s writings, albeit with a major difference: Kennedy’s phenomenological approach ‘emerges’ from the materials after he tried hopelessly to subdue them.
150. See his footnote to his paper “Freedom and Constraint”, supra note 130 at 8.
151. In a figurative manner I would say that Kennedy’s analysis of legal reasoning can help lawyers in understanding what phenomenology is all about, more than phenomenology can help us to understand legal reasoning itself.
152. See Dworkin, Law’s Empire, supra note 7 at 235 (discussion of Hercules experience). See his section on disagreement in law within Law’s Empire, ibid at 4-6 (where he starts from the phenomenology of judging). In a more recent paper, he resorts to phenomenology to establish the truth of moral arguments while denying an Archimedean basis: “I have considerable evidence in my own experience—as I think you have in yours—of a capacity to make moral judgments that bring conviction, that are mainly durable, that agree with great many others.” Dworkin, “Objectivity and Truth”, supra note 89 at 118. In another recent lecture titled “Is There Truth in Interpretation? Law Literature and History”, Dworkin states:
We disagree, then we level, and we are ambivalent about that disagreement. Is there a truth to be heard? Are we contesting what the truth is? That is to use a grand phrase, that is the phenomenology of most lawyers: we read, we puzzle, we puzzle again, then we come to a judgment, and it is a judgment, not a choice, does not feel like a preference, it feels like a judgment.See Library of Congress, “Is There Truth in Interpretation? Law, Literature and History” (December 17, 2009) YouTube, online: www.youtube.com/watch?v=742JyiqLhuk at 14:13-15:01.
153. This is a position Kennedy has held since his work on Rise and Fall, supra note 23.
154. Morton Horowitz, The Transformation of American Law 1870-1960 (Oxford University Press, 1992). Horowitz assigns an explanatory role to economics and politics in the development of law and legal thought that Kennedy will not endorse, keeping a further distance between legal thought and economic/political reality.
155. Kennedy, Rise and Fall, supra note 23 at xiv.
156. Ibid at x.
157. Kennedy, “Blackstone Commentary”, supra note 19 at 220.
158. Ibid at 220-21.
159. The question of autonomy and ‘relative autonomy’ has a very long history, beginning with Kant and the autonomy of reason as the model for other models of autonomy. But the idea of Relative Autonomy has a special history in Marxist and neo-Marxist thought, aiming to constrain the classical Marxist interpretation that holds a determinist view of relation between base and superstructure. The Relative Autonomy thesis has it both ways, it allows some level of determinism, but places limits on this, while allowing autonomy and also placing a limit on this autonomy as well. For a classical formulation of the idea in Marxist thought, see Louis Althusser, For Marx, translated by Ben Brewster (Pantheon Books, 1969). For a more specific account of the relative autonomy of law, see EP Thompson, Whigs and Hunters: The Origins of the Black Act (Breviary Stuff Publications, 2013 at Afterword. Some within CLS argue for the relative autonomy of law: see Karl Klare, “Law-Making as Praxis” (1979) 40:123-25 Telos. For a more recent articulation, see Dennis Davis, “Duncan Kennedy’s A Critique of Adjudication: Challenge to The Business as Usual Approach of South African Lawyers” (2000) 117:4 South African LJ 697. (To some extent, both Klare and Dennis think that Kennedy underestimates the universal potential of law.) For a classical position of determinism between economy and superstructure see GA Cohen, Karl Marx’s Theory of History (Princeton University Press, 2001) at Chapter 6 and 8.
160. Hackney, Legal Intellectuals, supra note 23 at 39.
161. Kennedy, “Introduction”, supra note 43 at 7.
162. Ibid at 8.
163. HLA Hart introduces the internal point of view in reaction to Austin jurisprudence that thinks of law only from the point view of the external observer. Such an observer “is content merely to record the regularities of the observable behavior in which conformity with the rules partly consists and those further regularities.” But such an account “does not give an account of the manner in which members of the group who accept the rules view their own regular behavior.” Hart, The Concept of Law, supra note 32 at 89.
164. After Hart had introduced the internal point of view as way to understand the practice from the point view of its participants, he adds another dimension and assigns further role for the internal point of view. The external “treats the (traffic) light merely as natural sign that people will behave in certain ways, as clouds are the sign that rain will come. In so doing he will miss out the whole dimension of the social life of those whom he is watching, since for them the red light is not merely a sign that others will stop: they look upon it as a signal for them to stop, and so as a reason for stopping.” Hart, The Concept of Law, supra note 32 at 90. This is the normative aspect of the internal point of view: it gives reasons for following the rule. The internal explanatory, and the internal normative got mixed within Hart account.
165. Stephen Perry, “Interpretation and Methodology in Legal Theory” in Andrei Marmor, supra note 55 at 101.
166. Hart describes his book as “an essay in descriptive sociology”, see The Concept of Law, supra note 32 at Preface.
167. Perry, supra note 165 at 133.
168. Kennedy would call this being ‘true’ to truth telling impulse, even while denying the possibility of ‘truth’. Kennedy, Critique of Adjudication, supra note 16 at 358.
169. See Pier Schlag on the need to suspend this urge to ask questions with a normative tone: “What needs to be done and where we should go? The first thing is to figure first where we are.” Pier Schlag, “Normativity and the Politics of Form” in P Schlag, S Smith & P Campos, supra note 8 at 32-33.
170. Kennedy, “Introduction”, supra note 43 at 6 and Legal Reasoning, supra note 14 at 6.
171. See, for example, Michael Moore, “Interpreting Interpretation” in Andrei Marmor, ed, supra note 55 at 29.
172. Kennedy, Critique of Adjudication, supra note 16 at 374.
173. “How does this relate to bad or evil legal systems, like the Apartheid legal system? Such a legal system is one in which the process values that we are drawn to respect could be respected only at the cost of assigning principles to that legal system which are wholly disreputable principles. When that is the best we can do, then, in my view, legality has nothing further to offer us. Then it is time for revolution, it is time for dramatic measures, because we reached the point that legality can no longer serve.” Dworkin, “Keynote Address”, supra note 9 at 16.
174. Kennedy, Critique of Adjudication, supra note 16 at 350.
175. “Those of us who are not moral realists are used to committing ourselves to projects, and deciding on strategies, on the basis of […] balancing of conflicting ethical and practical considerations. In the end [,] we make a leap into commitment or action. That we don’t believe we can demonstrate the correctness of our choices doesn’t make us nihilists….” Ibid at 362.
176. “We misunderstand internal critique if we imagine that it might lead to a situation in which we had lost faith in ‘everything’, so that we just wouldn’t know what to believe in or do. Critique changes our attitude toward a particular theory that generated a particular sentiment of rightness. […] It seems odd to me to suppose that we could ever, conceivably, be without resources of this kind, even if each of us was a veritable Hercules of critical destruction.” Ibid.
177. Ibid at 361.
178. Kennedy, Critique of Adjudication, supra note 16 at 358.
179. “But internal critique is part of the project when it is aimed at the pleasure of shedding Reason’s dead skin.” Ibid at 344; a “transgressive artifact […] ‘shatters’ the forms of ‘proper’ expression in order to express something that those forms suppressed.” Ibid at 342. “It deploys internal critique to loosen the sense of closure or necessity that legal and rights analyses try to generate.” Ibid. “I don’t think I can prove that such an attitude is wrong. My strategy aims only to undermine and entice.” Ibid at 340.
180. In fact, he clearly states that “[t]he pretension to objectivity as an enemy.” Kennedy, Critique of Adjudication, supra note 16 at 341.
181. I can refer the readers to the strong arguments brought by Waldron, “Did Dworkin Ever Answer the Crits?” in Scott Hershovitz, supra note 49.
182. This is a theme recurrent in Kennedy’s writings and here are just a few relevant examples of them: Duncan Kennedy, “The Stakes of Law, or Hale and Foucault!” (1991) XV:4 Legal Studies Forum; Duncan Kennedy, “Three Globalizations of Law and Legal Thought: 1850-2000” in DM Trubek & A Santos, eds, The New Law and Economic Development: A Critical Reader (Cambridge University Press, 2006) 19 at 19-20.
Thanks to Shai Lavie, Roy Krietner, Lewis Sargentich, Alon Harel, and mostly to Talha Syed who corrected some mistakes and encouraged me to publish.
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