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Published online by Cambridge University Press: 09 June 2015
Law is an interpretive enterprise. To grasp the meaning of any corpus of law, whether it is found in a statute, a series of common law decisions, or a constitution, requires an interpretation of the texts which comprise the law in question. The interpretation of legal texts is informed and disciplined by the principles which best support those texts as perceived by present day readers. The best interpretation is the one which both coheres with the body of law interpreted (fits the substance of past decisions), and is consistent with the most principled justification for those past decisions.
Special thanks to John Oakley who provided helpful criticism on early drafts of this paper, to John Klaus in the Seventh Circuit Library for his help tracking down sources, and to my wife who kept the home fire burning.
1. See Dworkin, Ronald, Law’s Empire (Cambridge: The Belknap Press of Harvard University Press. 1986)Google Scholar [hereinafter “Empire”]; Dworkin, Ronald, “Law as Interpretation” (1982) 60 Tex. L. Rev. 527 [hereinafter “Law as Interpretation”];Google Scholar Dworkin, Ronald, “My Reply to Stanley Fish (and Walter Benn Michaels)” in The Politics of Interpretation (Chicago: University of Chicago Press, 1983) at 287 [hereinafter “Reply”).Google Scholar
2. The following discussion of metaphysics and epistemology borrows heavily from Moore’s, Michael excellent article, “The Interpretive Turn in Modern Theory: A Turn for the Worse?” (1989) 41 Stan. L. Rev. 871 [hereinafter “Interpretive Turn”].CrossRefGoogle Scholar
3. See, e.g., McMullin, Eman, “A Case for Scientific Realism” in Leplin, Jarrett, ed., Scientific Realism (Berkeley: University of California Press, 1984) at 8.Google Scholar
4. Some scientific realists prefer the term “approximate truth”; presumably this implies a reference relationship of approximate correspondence. Query whether entities which approximately refer also only approximately exist? Does approximate existence make sense? See Smart, J.J.C., Philosophy and Scientific Realism (New York: Humanities Press, 1963)Google Scholar (arguing that some theoretical entities are real—actually exist in the same sense as commonplace intermediate-sized objects such as tables and mountains exist (e.g. electrons), while other theoretical entities are purely functional fictions (e.g. lines of force)).
5. See “Interpretive Turn”, supra note 2 at note 9 (citing Dummett, Michael, Truth and Other Enigmas (Cambridge: Harvard University Press, 1978)).Google Scholar
6. See “Interpretive Turn”, supra note 2 at notes 11 and 12. However, as Moore indicates, other less exacting methods for establishing the meaning of sentences are potentially compatible with a robust realism. See generally, Michael Dummett, supra note 5.
7. “Interpretive Turn”, supra note 2 at notes 12 and 13 (citing Putnam, Hilary, Mind, Language, and Reality (New York: Cambridge University Press, 1975) at 139–52, 196–271.CrossRefGoogle Scholar
8. “Interpretive Turn”, supra note 2 at notes 12 and 13.
9. Ibid.
10. Thus, the classic realist must also admit the possibility that certain truths, or perhaps all truths, about the universe are ultimately unknowable. The universe has independent reality which human perception may prove unable to truthfully apprehend. Some view this possibility of being incorrect (even if universally accepted) as one of realism’s great attributes, because it leaves all preconceptions open to challenge. On the other hand, metaphysical realism can also function to inhibit the questioning of fundamental ontological assumptions, because such assumptions are perceived of as the immutable characteristics of reality and not merely as explanatory tools.
11. Sometimes also called “technical realists”, or “transcendental nomenalists.”
12. When I “save” this essay onto a computer disk I will act as though the computer disk contains the product of my hard work (I will protect it and try not to lose it) even though I can in no way directly perceive the binary codes which the disk contains. If my hard drive crashes I will not panic because I believe that my essay is safely stored. Thus, I display behavior which is consistent with a belief that the nonobservable binary code actually exists.
Alternatively, even though I can in no way observe the electrical current flowing through the copper wire in my apartment’s walls, (when I hook up a voltmeter and watch the needle move I am observing only the effect of the electrical current not the current itself, or if I electrocute myself I am perceiving the effect of the current on the cells in my body, again not the current itself, or if I ground the wire and create a visible arc I am observing the electrical current at the point of the grounding and not observing the current still running through the copper wire), I may (if I have any brains at all) turn off the circuit breaker before I attempt to replace a worn electrical fixture.
13. Query whether such belief might be irrational? If human behavior is not justified, then there is no persuasive naturalized argument for the existence of non-observables. Some people behave as though non-observables exist and some people believe that the constellation on the horizon at the time of their birth influences their personality. So what? They both may be wrong, and some person’s (or some society’s) irrational behavior does not make astrology any more plausible. Thus, the naturalized realist needs an argument for the rationality of human belief in non-observables. What would such an argument look like?
The naturalized realist might invoke an instrumental argument of the following sort. Belief in nonobservables permits individuals to more easily conceptualize the status of complex systems. This ability to conceptualize permits persons to communicate with others. Thus, I can say that “I saved my essay” and this statement has instrumental value because it ultimately provides a greater ability to construct theories, which in turn creates an ability to intervene in the natural world. Since it is rational to prefer an ability to intervene, it is rational to behave as if non-observables exist. See Hacking, Ian, Representing and Intervening (Cambridge: Cambridge University Press, 1983) ch. 16,CrossRefGoogle Scholar (arguing that the experimenter must be a realist).
The naturalized realist must rely on some sort of instrumental argument for the rationality of belief in non-observables because foundational arguments will be unavailing. Such a foundational argument would be a negation of the naturalized realist’s initial assumption that no foundational axioms exist. Thus, a traditional epistemic argument for rationality is precluded by the naturalized realist’s anti-foundational initial assumption.
14. Ibid, passim (for an excellent discussion on why it is rational for scientists to believe in the existence of non-observables).
15. Moore identifies a weakened form of realism which he calls a “second-level realism” thai comes close to what I term naturalized realism. Unlike the true naturalized realist, however, Moore’s second-level realist still clings to a correspondence theory of truth. For the second-level realist, “truth as correspondence” is an interim position awaiting a yet-to-be-developed theory of truth and reference. “Truth as correspondence” is explanatory in the same way as the term “gene” is explanatory: both are placeholders. See “Interpretive Turn”, supra note 2 at 885–86. In addition, the second-level realist expects that, eventually, the principles of reference will be fully explained in physicalist terms. Ibid.; see also Churchland, Paul, Scientific Realism and the Plasticity of Mind (Cambridge: Cambridge University Press, 1988)Google Scholar (arguing for eliminative materialism: that our traditional notions of epistemology and truth are misguided because premised on a fundamental mis-perception of how humans come to know).
For the true naturalized realist, any reliance on correspondence is misleading. Naturalized realists like Dworkin view the search for correspondence as a wasteful diversion. Statements can be true or false, in the straightforward sense, without having to correspond to the “furniture of the universe.” They are true because they provide the most principled answer to some particular interpretive question within a given community. See infra sections V, VI, and VII.
16. A survey of modern anti-realism must begin with Kuhn, T.S., The Structure of Scientific Revolutions, (Chicago: University of Chicago Press, 1962, 2nd edn., enlarged, 1970) [hereinafter “Structure”];Google Scholar see also Kuhn, T.S., The Essential Tension (Chicago: University of Chicago Press, 1977);Google Scholar Feyerabend, Paul, ‘On the “Meaning” of Scientific Terms’, (1965) 62 J. of Phil. 266;CrossRefGoogle Scholar Feyerabend, Paul, Against Method (New Jersey: Humanities Press, 1975);Google Scholar Feyerabend, Paul, Farewell to Reason (New York: Verso, 1987);Google Scholar see generally, Scientific Realism, supra note 3 (for an excellent overview of the current realist/antirealist debate).
17. Berkeley, George, A Treatise Concerning the Principles of Human Knowledge (Menston: Scholar Press, 1971) (outlining the traditional idealistic thesis that all that exists is mental).Google Scholar
18. Ibid.
19. In this paper, conventionalism will be given the meaning here defined. Professor Dworkin uses the term in a somewhat different sense to refer to the positivistic jurisprudence of Hart and others. When I wish to refer to that position I will use the term positivism.
20. As two proponents of the type of conventionalism discussed in this paper, see Rorty, Richard, Consequences of Pragmatism (Minneapolis: University of Minnesota Press, 1982) [hereinafter Consequences];Google Scholar Fish, Stanley, “Still Wrong After All These Years”, (1987) 6 L. & Phil. 401 [hereinafter “Still Wrong”];CrossRefGoogle Scholar Fish, Stanley, “Wrong Again” (1983) 62 Tex. L. Rev. 299 [hereinafter “Wrong Again”];Google Scholar Fish, Stanley, “Working on the Chain Gang: Interpretation in Law and Literature” (1982) 60 Tex. L. Rev. 551 [hereinafter “Chain Gang”].Google Scholar
21. See A Treatise Concerning the Principles of Hitman Knowledge, supra note 17; (responding to the works of John Locke and arguing that neither primary nor secondary qualities can exist independent of the mind, that all sensible qualities exist only in the mind, and that the existence of sensible things depends on their being sensed by some mind); see Kant, Immanuel, Critique of Pure Reason (translated by Kemp Smith, N., New York: St. Martin’s Press, 1965)Google Scholar (rejecting the pure idealistic thesis that reason alone can provide knowledge, and arguing that a mental context, including a priori intuitions about the natural world and categories of understanding, is a necessary condition for gaining knowledge).
22. Thus, depressing the brake pedal on my car does not stop the car because the car, the pedal, the hydraulic system, and gravity, exist and display real relationships to one another, but rather because in the past my perception of “depressing the pedal” has been consistently conjoined with my perception of “coming to a stop.” This consistent conjunction of sensory perceptions permits me to infer that “depressing the pedal” will result in the desired perception of “coming to a stop.”
23. Examples of early conventionalists in the philosophy of science and mathematics include: Mach, Ernst, The Science of Mechanics, trans. McCormack, T.J. (Chicago: Open Court Publishing, 1968);Google Scholar Duhem, Pierre, The Aim and Structure of Physical Theory, trans. Weiner, P. (Princeton: Princeton University Press, 1954).Google Scholar
24. Consequences, supra note 20 at xvi, 162–66.
25. See Fish, Stanley, Is There a Text in This Class? (Cambridge: Harvard University Press, 1980);Google Scholar see Empire, supra note 1 at 425 n. 23 (note to page 77 wherein Dworkin argues that Fish’s concept of “critical communities” is unsuccessful as a way to extricate strong interpretivism from the profound relativism its seems to display).
26. See Structure, supra note 16 at 206–07 stating:
There is, I think no theory-independent way to reconstruct phrases like ‘really there’; the notion of a match between the ontology of a theory and its “real” counterpart in nature now seems to me illusive in principle. Besides, as a historian, I am impressed with the implausability of the view. I do not doubt, for example, that Newton’s mechanics improves on Aristotle’s and that Einstein’s improves on Newton’s as instruments for puzzle-solving. But I can see in their succession no coherent direction of ontological development.
Ibid, at 206.
27. For an account of this form of global anti-realism, see Laudan, Larry, “A Confutation of Convergent Realism” in Scientific Realism, supra note 3 at 218.Google Scholar
28. Thus, for example, a person may be skeptical about the claims made by astrology but metaphysically certain about the claims made by astronomy.
29. See Empire, supra note 1 at 78–86 (defining external skepticism as the criticism of a particular discipline from a (nonexistent) external “objective” vantage, and internal skepticism as doubt about the substantive claims made by a particular discipline as evaluated from within that discipline). Thus, an internal skeptic about law may have grave doubts about a particular reading of the equal protection clause, while being certain that the speed limit on Interstate Highway 5 between Grapevine and Stockton California is 65 m.p.h..
30. For this type of anti-realism, see van Fraassen, B.C., The Scientific Image (Oxford: Clarendon Press, 1980).CrossRefGoogle Scholar
31. Structure, supra note 16 at 76 (arguing that a given set of data is in fact supportive of multiple mutually inconsistent theories, and that it is the unique organization and preference given for certain pieces of data by particular paradigms (the gestalt of those paradigms) that results in the adoption of one theory over another).
32. Structure, supra note 16 at 76 (Kuhn states: “[Philosophers of science have repeatedly demonstrated that more than one theoretical construction can always be placed upon a given collection of data”) [emphasis added].
33. According to the skeptic, a particular paradigm or enterprise will value a certain set of concepts (efficacy, fecundity, simplicity, etc.) and certain methods of inquiry (types of problems, legitimate solutions, legitimate use of instruments) which are defined by the enterprise, and use these concepts and rules to choose between theories. These concepts and rules, which are accepted by the relevant community as dispositive, have only an enterprise-specific meaning and are themselves constructs of the paradigm. Thus, the methods for choosing between theories are a function of agreement, and are in no way objective. See Structure, supra note 16 at 37–42 (arguing that concomitant to accepting a paradigm is accepting a set of criteria for choosing problems and acceptable solutions (ibid, at 37–40); a bias towards preferred instrumentation and its legitimate use (ibid, at 40–41); a commitment to the quasi-metaphysical implications present in the paradigm’s defining exemplars (ibid, at 41–42), and an internalization of the particular values prized by the paradigm (ibid, at 42)).
34. Every language user completes the meaning of a term within his own internal mental topology. These completions may not map from one user to another, and in any event there is no way of telling to what extent different users’ internal meanings are coextensive. Thus, while two users may both be using the term “rabbit”, they may have radically different conceptions of what that term means. See Quine, W.V.O., Word and Object (Cambridge: Technology Press of M.I.T., 1960)Google Scholar (proposing an example of underdetermination of theory by data where, when confronted by a rabbit prompting an utterance of “Gavagi”, a hearer would be unable to determine if the speaker meant ‘Lo a rabbit!’ or ‘Lo an undetached-rabbit-part!’).
35. In a stronger sense epistemology might be seen as the study of what it means to know (or to know something is true), rather than to have a true belief. See Plato, , The Meno (Indianapolis: Bobb-Merrill, 1971)Google Scholar (contrasting true belief, which requires only the right answer, with knowledge, which requires that the knower be able to explain the basis on which the belief rests [a justified true belief]).
36. The relationship between theories of knowledge (epistemology) and theories of existence (metaphysics) is a complex one. Holding a particular theory about what it means to exist (or what things, or type of things, can and do exist) will color, if not determine, one’s view on what it is possible to know. Reciprocally, one’s view on the requirements for knowing (saying a statement is true or that the truth it contains is known) will inform one’s view on the existence of the objects of that knowledge. See Plato, The Republic Book 5 (Cambridge: University Press, 1963)Google Scholar (outlining a direct connection between stages of knowing and the existence of the object known such that ignorance has as its object that which does not exist, belief has as its object that which now exists [the physical world], and knowledge has as its object that which must always exist [the immutable forms]; Aristotle, , The Categories (Cambridge: Harvard University Press, 1983);Google Scholar Aristotle, , Metaphysics (Bloomington: Indiana University Press, 1966)Google Scholar (accepting that to know is to apprehend the universal and the real, but rejecting the Platonic forms and instead positing his theory of primary and secondary substance); Descartes, Rene, Meditations on First Philosophy (Translated by Rubin, Ronald, Claremont: Arete Press, 1986)Google Scholar (using a claim to knowledge about thinking as a proof for existence [“I am, I exist” is necessarily true whenever I utter it or conceive it in my mind]); Locke, John, Essay Concerning Hitman Understanding (Oxford: Clarendon Press, 1975)Google Scholar (arguing that knowledge is founded on sense perception and that perception of an object’s primary qualities [its size, number, shape, etc.] is perception of real attributes, inseparable from the existing object which possesses them, but that since there are certain aspects of nature which our senses cannot discern, our ability to understand [know] is limited); Berkeley, A Treatise Concerning the Principles of Human Knowledge, supra note 17 (rejecting Locke’s conclusion and arguing that perception of mental experience gives us a complete knowledge of reality); Hume, David, An Inquiry Concerning Human Understanding (New York: Macmillan Publishing, 1987)Google Scholar (agreeing with Berkeley that our perception is sufficient to apprehend nature but arguing that our understanding is insufficient to claim knowledge about the objects we perceive).
37. See e.g., Descartes, Meditations on First Philosophy (rationalism) supra note 36; Ayer, A.J. & Winch, Raymond, eds, British Empirical Philosophers (London: Routledge & Paul, 1965)Google Scholar (collecting the works of the British empiricists, including the works of Locke, Hume and Berkeley).
38. Thus, in Descartes’ famous “cogito ergo sum,” Descartes would seem to be a realist with respect to mental states.
39. See David Hume, Inquiry Concerning Human Understanding, supra note 36; Russell, Bertrand, Our Knowledge of the External World (New York: Norton and Co., 1929);Google Scholar Ayer, A.J., The Foundations of Empirical Knowledge (London: Macmillan and Co., 1940) (linguistic phenomenalism);Google Scholar Ayer, A.J., The Problem of Knowledge (New York: St. Martin’s Press, 1958);Google Scholar J.J.C. Smart, Philosophy and Scientific Realism, supra note 4.
40. See David Hume, An Inquiry Concerning Human Understanding, supra note 36. Hume states at 51:
all inferences from experience suppose, as their foundation, that the future will resemble the past and that similar powers will be conjoined with similar sensible qualities. If there be any suspicion that the course of nature may change, and that the past may be no rule for the future, all experience becomes useless and can give rise to no inference or conclusion. It is impossible, therefore, that any arguments from experience can prove this resemblance of the past to the future, since all these arguments are founded on the supposition of that resemblance.
41. Consequences, supra note 20 at 160–66, 170–75.
42. Many versions of anti-foundationalism exist. See infra, notes 121–32, 144–63 and accompanying text (the naturalized realist’s version of anti-foundationalism); infra notes 45–61 and accompanying text (the conventionalist’s anti-foundationalism).
43. The following discussion of strong interpretivism borrows heavily from Michael Moore’s excellent article “Interpretive Turn”, supra note 2 at 892–905.
44. See Consequences, supra note 20 at xvii–xxi. Rorty states that any properly pragmatic philosopher “does not think of himself as any kind of metaphysician, because he does not understand the notion of there being—out there.” Ibid, at xxviii.
45. Rorty, Richard, Philosophy and the Mirror of Nature (Princeton: Princeton University Press, 1979) [Hereinafter “Mirror”] at 385.Google Scholar Professor Rorty states that “[0]bjective truth is no more and no less than the best idea we currently have about how to explain what is going on.” Ibid.
46. The distinction between a strong interpretivist and a skeptic is somewhat subtle. The skeptic denies that persons presently have or (if he is a very strong skeptic) that they can ever have access to any privileged belief, or any way of directly perceiving and verifying the existence of entities posited by theories. The skeptic does not negate the validity of the search for independent or objective metaphysical certainty (in fact he is himself engaged in such a search), he simply argues that the grail (metaphysical certainty) has yet to be attained. The skeptic may (if he has the strength of his convictions) deny that academic conversation (outside of the search for certainty) has meaning.
The strong interpretivist, on the other hand, denies that the search for independent objective reality and certainty is meaningful. For the strong interpretivist, all perception is perception from somewhere, and “knowing” is really only participation in an enterprise where the “known” is a warranted assertion supported by the conventions of the enterprise. The strong interpretivist accepts the skeptic’s denial of certainty but notes that persons still claim to know, reason and persuade. The strong interpretivist views the pragmatic enterprise of academic conversation, although self-referring, as meaningful, and concludes that the metaphysician’s search for certainty is a waste of time.
47. See Consequences, supra note 20 at xix, 162.
48. See ibid. at 172.
49. Ibid, at xvi, xix–xxi. As Rorty puts it there is a “contingency of starting-points.” Ibid, at 166. See also generally, Quine, W.V.O., From a Logical Point of View (Cambridge: Harvard University Press, 4th ed. 1980).Google Scholar
50. Consequences, supra note 20 at 154. Rorty states that “we shall not see reality plain, unmasked, naked to our gaze.” Ibid.
51. Ibid, at xviii.
52. Ibid, at 28, 168–69.
53. Ibid, at 169. Rorty states that “suggested constraints, necessities, and principles are as plentiful as blackberries.” Ibid.
54. See ibid, at 165. Rorty states that there is no wholesale, epistemological way to direct, criticize, or underwrite the course of inquiry … “[T]here are no constraints on inquiry save conversational ones—no wholesale constraints derived from the nature of the objects, or of the mind, or of language, but only those retail constraints provided by the remarks of our fellow-inquirers.” Ibid, at 165. Further, such constraints “are in no sense inevitable ones discoverable by reflection upon the logic of inquiry. They are just the facts about what a given society, or profession, or other group, takes to be grounds for assertions of a certain sort.” Mirror, supra note 45 at 385. Or again, “[t]o accept the contingency of startingpoints is to accept our inheritance from and our conversation with, our fellow humans as our only source of guidance.” Consequences, supra note 20 at 166.
55. Consequences, supra note 20 at 165. Rorty states that truth is a “normative notion, a compliment paid to sentences that seem to be paying their way and that fit in with other sentences which are doing so.” Ibid, at xxv.
56. Ibid, at 165.
57. Ibid, at xix.
58. Ibid, passim.
59. Ibid, passim. The arguments which deny the existence of a privileged external vantage point lead the strong interpretivist to a kind of metaphysical and epistemological eliminativism. Like eliminative materialism in the philosophy of mind (where folk psychological concepts, such as mental states, are abandoned in favor of purely physicalist descriptions of mental operation), eliminative interpretivists are willing to abandon traditional notions of metaphysical ontology, truth, logic, and meaning. Eliminative interpretivists view objects as constructions of sense datum and theory, truth as simply the “best” idea that the community currently holds, logic as an enterprise (partially though not necessarily incorporated into other linguistic enterprises) and meaning as entirely context-dependent. Presumably eliminative interpretivists do not wish to import some metaphysical notion of the “best” idea. Thus, the “best” idea must be seen as that theory which is most widely accepted by the relevant community (or perhaps as the theory which is accepted by those members of the community who are themselves considered the “best”).
60. The following discussion of modest interpretivism borrows heavily from Moore’s “Interpretive Turn”, supra note 2; see also Empire, supra note 1; “Law as Interpretation”, supra note 1.
61. See Empire, supra note 1 at 65–68. Dworkin outlines three basic stages of interpretation. First, the pre-interpretive stage where an interpreter needs (or a group of interpreters need) “assumptions or convictions about what counts as part of the practice in order to define the raw data of his (their) interpretation^) at the pre-interpretive stage, … the interpretive attitude cannot survive unless members of the same interpretive community share at least roughly the same assumptions about this.” Ibid, at 67. Second, the fit stage where “[H]e … needs convictions about how far the justification he proposes at the interpretive stage must fit the standing features of the practice to count as an interpretation of it rather than the invention of something new … (further) there cannot be too great a disparity in different people’s convictions about fit; but only history can teach us how much difference is too much.” Ibid. Finally, the evaluative stage where an interpreter “will need more substantive convictions about which kinds of justification really would show the practice in the best light… [t]hese substantive convictions must be independent of the convictions about fit just described, otherwise the latter could not constrain the former.” Ibid, at 67–68.
62. Ibid, chapters 6 and 7. Dworkin states:
Law as integrity is also a nonskeptical theory of legal rights: it holds that people have as legal rights whatever rights are sponsored by the principles that provide the best justification of legal practice as a whole.
Ibid, at 152. Or again:
According to law as integrity, propositions of law are true if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community’s legal practice.
Ibid, at 225.
63. See ibid, at 128–29. Dworkin sees strict positivism (he calls it conventionalism) as necessarily containing gaps. These gaps are areas of legal interest where neither legal texts nor their explicit extensions will be dispositive. Dworkin states that:
the positive part of conventionalism - that judges must respect the explicit extension of legal conventions - cannot offer any useful advice to judges in hard cases. These will inevitably be cases in which the explicit extension of the various legal conventions contains nothing decisive either way, and the judge therefore must exercise his discretion by employing extralegal standards … (thus) when statutes are disputed and precedents are of uncertain impact, (conventionalist judges must) face up to their fresh legislative responsibilities candidly … Strict conventionalism claims that judges are liberated from legislation and precedent in hard cases because the explicit extension of these legal conventions is not sufficiently dense to decide those cases.
Ibid, at 128–29.
64. Ibid, at 151–75. Dworkin states that legal pragmatism and legal realism are purely prospective because they:
[deny] that past political decisions in themselves provide any justification for either using or withholding the state’s coercive power. He [the legal realist or pragmatist] finds the necessary justification for coercion in the justice or efficiency or some other contemporary virtue of the coercive decision itself, as and when it is made by judges, and he adds that consistency with any past legislative or judicial decision does not in principle contribute to the justice or virtue of any present one.
Ibid, at 151. Or again:
Pragmatism … denies that people ever have legal rights; it takes the bracing view that they are never entitled to what would otherwise be worse for the community just because some legislature said so or a long string of judges decided other people were.
Ibid, at 152. Stated again:
It [pragmatism] says that judges should follow whichever method of deciding cases will produce what they believe to be the best community for the future … [and] what we call legal rights are only the servants of the best future: they are instruments we construct for that purpose and have no independent force or ground.
Ibid, at 160.
65. Ibid, at 130–35. Dworkin’s criticism of legal positivism focuses on both the analytical poverty of its positive dimension, and the non–evaluative structure of its negative dimension. Positivism’s positive dimension directs judges to enforce the explicit extensions of legal conventions. Yet, where such conventions are clear, legal controversy is unlikely, and difficult cases are difficult just because no explicit extensions of legal convention are immediately apparent. Thus, positivism is helpful when it is superfluous and profoundly unhelpful when judges need it most. Additionally, according to Dworkin, positivism’s negative dimension unwisely liberates judges from any evaluation of the justification for past decisions when explicit sources of law are exhausted, leaving judges free to act like a legislature and to make purely prospective decisions. According to Professor Dworkin, this liberation from legal norms does not accurately describe what judges say they are doing when they decide hard cases. As Professor Dworkin sees it, “[legal positivism] fails as an interpretation of our legal practice … for the following paradoxical reason: our judges actually pay more attention to so–called conventional sources of law like statutes and precedents than conventionalism [positivism] allows them to do.” Ibid, at 130.
66. See supra notes 63, 65.
67. See Empire, supra note 1 at 134. Professor Dworkin states “Law as integrity supposes that people are entitled to a coherent and principled extension of past political decisions even when judges profoundly disagree about what this means.” Ibid, at 134. Further, Dworkin states that
Law insists that force not be used or withheld, no matter how useful that would be to ends in view, no matter how beneficial or noble these ends, except as licensed or required by individual rights and responsibilities flowing from past political decisions about when collective force is justified.
Ibid, at 93.
68. Ibid, at 225–28. In this section, as elsewhere in Law’s Empire, Dworkin emphasizes that political coercion is justified only in relation to past political decisions authorizing collective action or abstention. Thus, according to law as integrity, current judicial acts must be grounded in “the rights and duties that flow from past collective decisions and for that reason license or require coercion.” Ibid, at 227. Law as integrity is thus retrospective because its current adjudications must “flow from past political decisions.” Ibid, at 225.
69. Ibid, at 225–28. The prospective dimension of law as integrity requires judges to make decisions which show the principles underlying past collective action in their best light. This prospective dimension combines with the retrospective dimension to ensure that decisions in hard cases will be both fair (fit the reasonable expectations of members of the polity because they cohere with past political decisions) and just (follow and extend the principles justifying past decisions in a way that the overall set of judicial decisions is made the best it can be). As Professor Dworkin states:
Law as integrity denies that statements of law are either the backward-looking factual reports of conventionalism or the forward-looking instrumental programs of legal pragmatism. It insists that legal claims are interpretive judgments and therefore combine backward- and forwardlooking elements; they interpret contemporary legal practice seen as an unfolding political narrative.
Ibid, at 225. Professor Dworkin states further that law as integrity “contains not only the narrow explicit content of these (past collective) decisions but also, more broadly, the scheme of principles necessary to justify them.” Ibid, at 227. Finally, Professor Dworkin identifies the point of law as integrity as not aiming to:
recapture, even for present law, the ideals or practical purposes of the politicians who first created it. It aims rather to justify what they did … in an overall story worth telling now, a story with a complex claim: that present practice can be organized by and justified in principles sufficiently attractive to provide an honorable future.
Ibid, at 227–28.
70. See ibid. 151–75; see also supra note 64 and accompanying text. Dworkin states unambiguously that “Pragmatism is a skeptical conception of law because it rejects genuine, nonstrategic legal rights.” Empire, supra note 1 at 160. As Dworkin sees it “[t]he pragmatist thinks judges should always do the best they can for the future, in the circumstances, unchecked by any need to respect or secure consistency in principle with what other officials have done or will do.” Ibid, at 161.
71. Dworkin claims that pragmatists argue, “on pragmatic grounds, that judges must sometimes act as //people had legal rights, because acting that way will serve society better in the long run.” Ibid, at 152. This is so because “[i]f judges were seen to pick and choose among legislation, enforcing only those statutes they approved, this would defeat the pragmatist’s goal because it would make things not better but much worse.” Ibid, at 153. Thus, at best “a sound as-if strategy would produce an attenuated doctrine of respect for statutes and precedents.” Ibid, at 154.
72. For Dworkin fairness in politics is:
a matter of finding political procedures—methods of electing officials and making their decisions responsive to the electorate—that distribute political power in the right way. That is now generally understood, in the United States and Britain at least, to mean procedures and practices that give all citizens more or less equal influence in the decisions that govern them.
Ibid, at 164–65. Further Dworkin contends that “the integrity of a community’s conception of fairness requires that the political principles necessary to justify the legislature’s assumed authority be given full effect in deciding what a statute it has enacted means.” Ibid, at 166.
73. For Dworkin, coercive action or abstention is justified only if an attitude of integrity toward some past legislative act would require or forbid it. See ibid, at 165–66. Dworkin’s criticisms of legal pragmatism basically map the Kantian criticisms of utilitarianism—that legal pragmatism does not treat individuals as ends in themselves nor does it treat all persons with equal respect and concern. The fundamental (if over-simplified) tenet of political integrity to fairness requires, according to Dworkin, that judges “treat like cases alike.” Ibid, at 165. As Dworkin sees it, this simple axiom “requires government t speak with one voice, to act in a principled and coherent manner toward all its citizens, to extend to everyone the substantive standards … it uses for some.” Ibid, at 165. Thus, when a series of decisions gives rise to a principle which (if consistency is respected) should dictate a particular decision in a current controversy, the legal pragmatist violates principles of fairness if he refuses to decide the case as the principles indicate, even if an alternative decision would promote prospective utility. Ibid.
74. See supra notes 61, 62, 67 and accompanying text. Dworkin explains that consistency in principle as required by law because:
Integrity commands a horizontal rather than vertical consistency of principle across the range of the legal standards the community now enforces. It [integrity] insists that the law-the rights and duties that flow from past collective decisions and for that reason license or require coercion- contains not only the narrow explicit content of these decisions but also, more broadly, the scheme of principles necessary to justify them.
Empire, supra note 1 at 227.
75. Dworkin states that:
Convictions about fit will provide a rough threshold requirement that an interpretation of some part of the law must meet if it is to be eligible at all…. That threshold will eliminate interpretations that some judges would otherwise prefer, so the brute facts of legal history will in this way limit the role any judge’s personal convictions of justice can play in his decisions.
Ibid, at 255.
76. See ibid, at 255; see also supra note 61.
77. Dworkin states that law as integrity’s attitude is “constructive: it aims, in the interpretive spirit, to lay principle over practice to show the best route to a better future, keeping the right faith with the past.” Ibid, at 413. This synthesis has been evident in Dworkin’s work for some time as, for example, when he states:
propositions of law are not simply descriptive of legal history in a straightforward way, nor are they simply evaluative in some way divorced from legal history. They are interpretive of legal history, which combines elements of both description and evaluation but is different from both.
“Law as Interpretation”, supra note 1 at 528; see also supra note 69.
78. Empire, supra note 1 at 413.
79. The foregoing conceptual categories are derived from Moore’s, Michael S. “Metaphysics, Epistemology and Legal Theory”, (1987) 60 S. Cal. L. Rev. 453, 456–57 [hereinafter “Metaphysics”].Google Scholar
80. See Empire, supra note 1 at 65–66. Dworkin claims that one of the primary distinguishing features of the different stages of interpretation is the degree of consensus required for each level of analysis. Dworkin states:
[We shall need an analytical distinction among the following three stages of an interpretation, noticing how different degrees of consensus within a community are needed for each stage if the interpretive attitude is to flourish there. First, there must be a “pre-interpretive” stage in which the rules and standards taken to provide the tentative content of the practice are identified. (The equivalent stage in literary interpretation is the stage at which discrete novels, plays, and so forth are identified textually…
Ibid. Thus, since the pre-interpretive stage identifies the objects which a particular practice (art or law) are to interpret, the pre-interpretive stage determines the ontology for that practice. Further, since it is “consensus” which delineates the content for that practice, ontology is essentially determined by consensus, and the first of our metaphysical conventionalist indicators is satisfied. Further, since the meanings of crucial terms like “novel” of “statute” must also be determined at the pre-interpretive stage, the last criterion of a conventionalist metaphysics is satisfied.
81. Ibid, at 66.
82. Ibid.
83. See “Law as Interpretation”, supra note 1. Dworkin states that his aesthetic hypothesis (later expanded to an analogous political hypothesis for legal interpretation) is this:
an interpretation of a piece of literature attempts to show which way of reading (or speaking or directing or acting) the text reveals it as the best work of art. Different theories or schools or traditions of interpretation disagree on this hypothesis, because they assume significantly different normative theories about what literature is and what it is for and about what makes one work of literature better than another.
Ibid, at 531. In this way, since the fundamental building blocks for interpretation are the normative theories propounded by different “schools or traditions,” any interpretation is metaphysically conventionalist. Dworkin’s non-foundationalism is evidenced by his account of the holistic justification in modern science. Dworkin states:
the entire body of our convictions about logic, mathematics, physics and the rest confronts experience together, as one interdependent system, and there is no part of the system which could not, in principle, be revised and abandoned if we were willing and able to revise and adjust the rest. If we held very different beliefs about the theoretical parts of physics and the other sciences, we would, in consequence, divide the world into very different entities, and the facts we “encountered” about these different entities would be very different from the facts we now take to be unassailable.
Dworkin, Ronald, A Matter of Principle (Cambridge: Harvard University Press, 1985) at 169.Google Scholar This non-foundationalism refines Dworkin’s apparent conventionalism by positing an ontology divorced from any necessary relationship to a context-independent “reality” and defined by agreement. If the entities encountered could be “very different” depending upon the theories accepted, then, providing we are willing to accept the repercussions of our choice, Pegasus may still fly, and Apollo carry the sun through the heavens.
84. See Empire, supra note I at 83, 168. Dworkin states that “[W]e [law as integrity practitioners] do not say – nor can we understand anyone who does say – that interpretation is like physics or that moral values are ‘out there’ or can be proved.” Ibid, at 83. Dworkin makes the same point when he states “[I] do not intend to resurrect the metaphysical theory I said in chapter 2 we do not need. I do not suppose that the ultimate mental component of the universe is some spooky, all embracing mind that is more real than flesh and blood people.” Ibid, at 168. This anti-realistic theme runs throughout Dworkin’s work on integrity. As an example, Dworkin states that the realist’s correspondence theory of truth is:
[A] mysterious and highly blurred idea of ‘real’ truth, which they express only in metaphors, and which I doubt can be expressed in any other way. They say that a proposition is ‘really’ true only if it accurately describes facts that are ‘out there,’ or part of ‘the fabric of the universe,’ or ‘locked into’ an ‘independent reality’ of something of that sort.
Dworkin, Ronald, “A Reply by Ronald Dworkin”, Ronald Dworkin and Contemporary Jurisprudence (Totowa N.J.: Rowman and Allanheld, 1984) at 277.Google Scholar
85. Empire, supra note 1 at 225. Dworkin states that “According to law as integrity, propositions of law are true if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community’s legal practice.” Ibid, [emphasis added]. Thus, since there can be a best interpretation which can be reduced to a true proposition, Dworkin implicitly adopts the view that unique correct answers to legal questions are possible.
86. The bi-valence principle of logic is a fundamental tenet of metaphysical realism. See supra Part I section A.
87. These basic logical principles are a necessary concomitant to Dworkin’s right-wrong thesis if the right answers which Dworkin posits are to have moral force. An indeterminate (neither true nor false) or unstable (both true and false) right answer may have meaning for propositions about sub-atomic quanta but it cannot serve to provide the type of answers about literature and law which Dworkin proposes. Such logical principles have generally been associated with classic realistic metaphysics. See supra Part 1 section A.
However, we must not state Dworkin’s right-wrong thesis so strongly that it becomes a straw man. Certainly Dworkin must admit the possibility that not all interpretive questions have singular right answers. Indeterminate answers exist when insufficient legal or literary data make a principled decision impossible. For example, suppose archaeologists discover a text from an extinct civilization about which little or nothing is known. Some questions about this text may prove unanswerable (e.g., what do the textural symbols mean? do the characters in the narrative represent idealized archetypes or actual persons? is this a religious or secular text (do these categories have meaning with respect to this culture)? was it meant to be read or spoken? who is its author (does the text have a singular author)?. Likewise for legal texts, if the raw data is insufficient to provide a principled basis for believing that a unique right answer exists, then the most honest response must be to admit that, with respect to this question and this text, the bi-valence principle does not apply.
88. Empire, supra note 1 at 134.
89. The belief in a context independent-reality is of course a strong indication of a realistic metaphysics. See supra Part 1 section A.
90. See Empire, supra note 1 at 76–86.
91. Ibid.
92. See ibid, at 76–86. Dworkin attempts to dissolve the relevance of what he calls “external skepticism” defined as “a metaphysical theory … a second-level theory about the philosophical standing or classification of these [substantive] claims … [insisting] that all these [substantive and interpretive] opinions are projected upon, not discovered in, ‘reality’.” Ibid, at 79–80. External skepticism, as Dworkin defines it, is identical to classic anti-realistic skepticism. See infra, notes 36,40–43 and accompanying text. Dworkin attempts to demonstrate external skepticism’s irrelevancy by showing that there is no difference between making substantive moral statements and stating further that those statements are objectively or really correct. As Dworkin puts it:
there is no important difference in philosophical category or standing between the statement that slavery is wrong and the statement that there is a right answer to the question of slavery, namely that it is wrong. I cannot intelligibly hold the first opinion as a moral opinion without also holding the second. Since external skepticism offers no reason to retract or modify the former, it offers no reason to retract or modify the latter either. They are both statements within rather than about the enterprise of morality. Unlike the global form of internal skepticism, therefore, genuine external skepticism cannot threaten any interpretive project.
Ibid, at 82.
While Dworkin would undoubtedly reject this conclusion, Moore argues that Dworkin’s insistence that external skepticism is valueless, and his conviction that right answers are possible, amounts to an implicit embrace of a metaphysical realism. I will argue that Dworkin does accept a form of realism (naturalized realism) but not the classic realism which some of his critics urge. See infra Part VII.
93. For example, if convention determines ontology (the pre-interpretive stage) how can rights exist “beyond … convention?” Empire, supra note 1 at 134. Or again, if “right” answers exist (beyond those explicitly sanctioned by convention) how can Dworkin sustain his hostility to some independent reality?
94. See Empire, supra note 1 at 76–86; “Reply”, supra note 1 at 288–92. It is interesting to note that the different metaphysical assumptions embraced by Dworkin’s integrity thesis roughly map to the conceptual distinctions made between the interpretive and post-interpretive stages. Thus, Dworkin’s conventionalism derives primarily from the second stage of analysis where “fit” with the extant landscape drives the inquiry. In contrast, Dworkin’s realism derives primarily from the post-interpretive stage where the integrity acolyte seeks the “best” interpretation possible.
95. Empire, supra note 1 at 76–86.
96. Ibid.; “Reply” supra note 1 at 299–301.
97. For a fully developed defense of metaphysical inquiry, see “Interpretive Turn”, supra note 2; Moore. “Metaphysics”, supra note 79.
98. See “Chain Gang”, supra note 20; “Wrong Again”, supra note 20; “Still Wrong”, supra note 20.
99. See “Chain Gang”, supra note 20 at 555.
100. Fish contends that all decision-making must take place within some enterprise (all practice is a practice of something). What makes one enterprise different from another is the set of (mainly transparent) assumptions, methods, principles and purposes, antecedently accepted by the members of the enterprise. Participating in a practice means engaging in discourse sanctioned by the principles supporting thai practice. Thus, for Fish, to do “X” means to promote integrity with the principles which define “X”. To do something else is not to do “X” incorrectly but to engage in another enterprise. The fact that judges can say “D” decision is wrong implies that “D” is understandable as a valid (if unpersuasive) response from within the enterprise. Therefore “D” must be consistent with the basic principle of integrity to that enterprise; if it were not. it could not be wrong, only incomprehensible. Ibid. 555–57.
101. Ibid, at 562. Fish states:
I have been trying to show … that interpretation is a structure of constraints, a structure which. because it is always and already in place, renders unavailable the independent or uninterpreted text and renders unimaginable the independent and freely interpreting reader. In searching for a way to protect against arbitrary readings (judicial and literary), Dworkin is searching for something he already has and could not possibly be without. He conducts his search by projecting as dangers and fears possibilities that could never be realized and by imagining as discrete concepts entities that are already filled with the concerns of the enterprise they supposedly threaten.
102. Fish’s implicitly assumes that no preference can exist independent of some enterprise, and that no enterprise is comprehensible except in terms of some general purpose or principle. See ibid, passim. Query whether he is right? Does a judge “J” with a personal preference for sentencing individuals with the last name Jones to the maximum sentence allowable (irrespective of the facts in any particular case) act in a principled manner when the reason for this Jones bias is that “Old Man Jones” poisoned his dog when the judge was a child? He has a personal preference which seems to be divorced from the enterprise in which he functions. Fish would state that such a judge was not engaged in the enterprise of judging but was rather continuing the direction of an extra judicial enterprise. Ibid, at 555. However, in a straightforward sense, when the judge renders his judgement and remands the unfortunate defendant Jones into custody, judge “J” certainly seems to be engaged in the activities of a judge (motivational subtleties notwithstanding). This is a crude example of unprincipled judging (exercising the powers of a judge in an unprincipled manner) which Fish’s categorical reduction (simply redefining unprincipled judging as not-judging) fails to address.
A similar criticism is levelled against Fish by Dennis Patterson. Patterson, Dennis, “You Made Me Do It: My Reply To Stanley Fish” (1993) 72 Tex. L. Rev. 67.Google Scholar Patterson finds a fundamental contradiction at the core of Fish’s thesis because Fish must posit both a homogeneous and a heterogeneous (or pluralistic) view of interpretive communities. Ibid, at 75–76. According to Patterson, homogeneity is necessary to account for communication between members of a community, and inevitable because membership in a community results from an unavoidable process of professional socialization. Ibid. at 73–74. Heterogeneity is necessary, continues Patterson, to account for the different answers community members reach to identical interpretive questions. Ibid, at 73–75. In order to synthesize these opposing constraints, Fish must (according to Patterson) dilute his notion of interpretive communities to admit pluralistic interpretive assumptions within a given community which, if they are radically divergent enough, really constitute separate “monadic” communities. Ibid, at 75. Thus, the judge “J” in the previous example, in virtue of his unique set of values, is both a part of, and not a part of, the interpretive community of judges, and principled discussion with this judge is at the same time possible and impossible.
103. See “Chain Gang”, supra note 20 at 555–57.
104. Conventionalism is impossible (no matter what judges may say) because all discourse is interpretive. There is no “just there” meaning in the legal history (a position which Fish attributes to Dworkin’s discussion of positivism). Ahistorical Pragmatism is likewise impossible because no process of evaluation and adjudication can take place apart from the historical moorings which determine the permissible moves within the enterprise. Even purely prospective decisions will incorporate concepts supported by the enterprise (e.g., justice, efficiency). These interpretive concepts, and the very process of engaging in the enterprise, ensure that the decision will be principled. Ibid, at 555–57.
105. Ibid.
106. Fish argues that the principles which Dworkin identifies as “law as integrity” (coherence with foundational principles) are in fact nothing more than engaging in the enterprise of judging. “Good” decisions are persuasive; “Bad” decisions are unpersuasive; but neither is any the less interpretive, nor does either better conform to the integrity of the enterprise since both are always and necessarily constrained by the enterprise of judging. Ibid, at 556–57. Fish states that “[T]he distinction between a found history and an invented one is finally nothing more than a distinction between a persuasive interpretation and one that has failed to convince.” Ibid, at 556.
107. Ibid.; see also “Wrong Again”, supra note 20. Fish states:
In short, everything that Dworkin would secure in the name of the right-wrong picture—a ground for assuming that interpretations may be sound or unsound, better or worse, more or less accurate—already is secured by the fact that the interpreter is embedded in a structure of beliefs of which his judgments are an extension. The entire project of explaining how ordinary interpreters think as the do—think that they are right and others are wrong and that what they believe is true—is unnecessary because they could not possibly think anything else. For the same reason, it is equally unnecessary to answer the questions that Dworkin rehearses so often and so urgently.
Ibid, at 312. Fish reiterates his commitment to the inevitability of interpretation when (in defense of his own position) he states:
readers are not free standing but constituted in their ways of seeing and knowing by the communities of which they become members; once this understanding of the reader is in place, the opposition between the reader and the ways of the community makes no sense. In short, it is my contention … that a reader who is a member of an interpretive community (as all readers necessarily are) is a reader always and already constrained, and that therefore, the statement “the reader produces meaning” and the statement “the reader is constrained by the community” are not contradictory but interchangeable.
Fish, Stanley, “How Come You Do Me Like You Do? A Response To Dennis Patterson” (1993) 72 Tex. L. Rev. 57 at 62 (arguing that Patterson misunderstands the relationship between a reader and the text—that interpretive templates possess the individual interpreter rather than the other way around).Google Scholar
108. See Empire, supra note 1; “Reply”, supra note 1.
109. Empire, supra note 1, chapter 2.
110. “Reply”, supra note 1 at 288–89. Query whether or not such a position is entailed by Dworkin’s arguments? The argument for entailment might look something like this. Dworkin wants an interpretation which makes the text the best it can be. If there is a best to a particular text, this must mean that other inferior interpretations exist. (Hamlet as instructional sketch about the dangers of eavesdropping versus Hamlet as a tragedy about self doubt, guilt and inaction). Interpretations which are better are so because they cohere with some attribute(s) in the text—the text contains symbolic indicators alerting interpreters as to the text’s essential nature. If this is so then it would seem that something in the text itself has metaphysical stature—there is some “there” for an interpretation to cohere with. If the text has some essential nature limiting the possible principles which can be invoked to explain or interpret it then the text itself provides some “self-executing constraints.” See “Wrong Again”, supra note 20 at 299–32 (1983) (proposing a similar argument for entailment).
Dworkin responds to this argument by claiming that any perceived constraints are supplied by convention not by the texts themselves. Thus, no positivistic meaning “just there” need be present to explain the pervasive shared pre-interpretive context—Hamlet as a play, not a statute, or a letter to my congressman. The symbolic marks constituting Hamlet have a best interpretation if that interpretation is seen as cohering more closely with a relevant set of conventional attitudes than any other extant interpretation (Dworkin’s dimension of “fit”). See “Reply” supra note 1 at 288–90.
111. Empire supra note 1 at 82–83 (Dworkin argues that these political or aesthetic judgements are nevertheless genuine and important). Arguments on why Hamlet is not best seen as a instructional sketch are arguments about aesthetics and theater. Thus, the constraints on interpretation are not found in the text, rather in the enterprise and the individual. See “Reply”, supra note 1 at 290–92.
112. Ibid. If all that constrains the possible range of interpretations is an individual’s set of aesthetic or political beliefs, how can Dworkin avoid a charge of subjectivism? Dworkin claims that his dimension of “fit” with the extant landscape ensures that aberrant interpretations are not accepted. But how can “fit” provide a meaningful limitation on the interpretive range if there is nothing within the text for the interpretive candidate to cohere with? Dworkin’s naturalized realism provides a partial answer to this question by localizing the object of coherence in the domain of pre-interpretive conventional attitudes. For a more detailed focus on this tension, see “Wrong Again” supra note 20 and “Still Wrong” supra note 20.
113. Dworkin outlines Fish’s basic external argument as follows. Fish posits that a copy, or a weak correspondence, theory of truth is necessary for the right-wrong thesis. Fish then asserts that the copy theory of truth is insupportable and, therefore, that the right-wrong thesis is insupportable. From this Fish concludes that there is no distinction between interpretation and invention. “Reply” supra note 1 at 290.
114. Dworkin states that he is trying to determine what role interpretive judgments play in the “mental topology” before addressing the metaphysical grounding of those judgments. Ibid.
115. Ibid, at 297–303.
116. Dworkin states that any theory of interpretation must provide an explanation of how it is possible for persons to hold the convictions implicit within the right-wrong thesis. Dworkin maintains that the rightwrong thesis is part of the interpretive enterprise, and that, without the convictions the right-wrong thesis provides, interpretation is not possible. Dworkin believes that if a theory of interpretation (like Fish’s) is unable to explain how interpreters can hold these convictions then it will be unable to explain how interpreters interpret. Ibid, at 288–90.
The two implicit convictions necessary for the right-wrong thesis are: 1) interpretation is different from invention, creation, or changing; and 2) an interpreter must be able to distinguish (or think he can distinguish) between his own invention and an interpretation. Corollaries to these convictions are the beliefs that one interpretation can be better than another and that rational persuasion is possible. Further, according to the right-wrong thesis, because communication between interpreters is possible, the individual dis-junctions (interpretation v. invention) must map across individuals (part of the preinterpretive context). Dworkin contends that because Fish’s brand of interpretivism is unable to provide an explanation of how persons can come to hold convictions 1) and 2), his brand of interpretivism fails.
Query whether is it really true that interpretation and creation are different things? In one sense interpretation is just a limited and special instance of creation (at least to the extent that the interpretation is public or recorded and not simply an internal relationship to a text). Certainly if creation is defined broadly enough (all human-generated symbolic communication) then a symbolic recorded interpretation is a creation of a text that has as its subject matter the meaning of another text.
117. Ibid, at 288–92.
118. Ibid.
119. By this he means that facts are theory-dependent. Thus, even the basic question of whether some set of marks “X” is a text depends on a theory about what constitutes a text. Ibid, at 293.
In a recent article, Dennis Patterson criticizes what he identifies as the “interpretive universalism” of Dworkin’s integrity thesis and especially the primacy of theory in Dworkin’s interpretivism. Patterson, Dennis, “The Poverty of Interpretive Universalism: Toward A Reconstruction of Legal Theory” (1993) 72 Tex. L. Rev. 1 [hereinafter “Poverty”].Google Scholar Patterson objects to the ascendence of interpretive modelling in modern thought because it denigrates the experience of “understanding” and incorrectly places interpretation at the center of cognition. Patterson’s specific criticisms of Dworkin’s interpretivism are: 1) that “the reduction of understanding to interpretation generates an infinite regress of justification” and 2) a quasi-positivistic argument which rejects the necessity of theory-driven interpretation for “easy” cases. Ibid, at 29.
An analysis of Dworkin’s integrity thesis provides a response to Patterson’s first objection. Dworkin’s thesis posits a three stage interpretive analysis (Pre-interpretive, Retrospective-Interpretive [Fit], Prospective-Post-Interpretive [Merit]). Empire, supra note 1 at 65–68. At the pre-interpretive stage, the ontological and linguistic basis bases for communication are established by the implicit consensus of socialization. Ibid, at 65–66. At this level the “threads” which make up the web of cognition are established without explicit reflection (except perhaps at times of crisis when global paradigm replacement is contemplated). These necessary ontological and linguistic commitments act as the basis for communal activity and provide the terminus for Patterson’s regress of justification. Patterson is correct that these threads are themselves interpretive (Dworkin admits as much)—but so what? A rethinking of these fundamental standards is only necessary when the enterprise in which they function reaches a state of crises. See Structure, supra note 16. These linguistic and ontological commitments are the “operating system”, if you will, which makes the higher level interpretive programming possible. Thus, because this pre-interpretive consensus can act as the foundation for higher level interpretive communication and argument, and because (for purposes of the normal activity of a practice) these threads of cognition are not (and need not be) subject to explicit interpretive analysis, Patterson’s infinite regress of the justification objection is (for the purposes of day-to-day practice) illusory.
Patterson’s second criticism is met in a similar way. Patterson claims that easy cases do not require resort to interpretation but rather are resolved by understanding the positivistic meaning of a given set of rules and their application. “Poverty”, at 23–29. According to Patterson, easy legal questions—as with addition—do not require a resort to theory. Ibid. at 25. The example of addition is informative, though not in the way Patterson intends. It is true that the question “what” is the sum of 2 plus 2 does not seem to require a resort to theory, but that is because the answer is memorized not because the answer is understood. To understand the answer to the same question, we must ask not “What is the answer?” but “Why is the answer “4” correct?”. To answer the question “why” requires use of a rather advanced theory (number theory), and even the question “how” does one generate the correct answer to an addition problem (say 29 plus 12) requires a theory of combination functioning within another theory (the numbering system—decimal = 41, hexadecimal = 3B, etc.). This is Dworkin’s point: easy cases are founded on theory in exactly the same way hard cases are, with the only difference being that in easy cases the interpretive answer is obvious and the reasoning process unexplicit, while in the hard cases explicit interpretive analysis is necessary.
120. “Reply”, supra note 1 at 293–94. It is these concessions which distinguish Dworkin from more robust (classic) realists.
121. Ibid.
122. Ibid. To explicate his point, Dworkin draws an analogy to science. Science is complex enough, Dworkin asserts, to provide its own standards for theory choice and abandonment. Science employs a coherence view of truth where the internal tensions of the enterprise discipline all new theoretical assertions. While global paradigm replacement is theoretically possible, it rarely if ever occurs because the loss of interdependent theories provides a strong dis-incentive to scientific revolution. Dworkin argues that legal interpretation is also a sufficiently complex enterprise to provide its own standards for theory choice and abandonment. In law, as in science, factors of fit (conventions of integrity and fairness), plus value (conventions of merit and justice) constrain legal interpretation. These factors also provide standards for interpretation, and capture the essential attributes of an interpreter’s capacity to make discrete interpretive judgments. Ibid. at 294–95.
123. Ibid, at 302. This quasi-skeptical concession also helps to distinguish Dworkin’s naturalized realism from classic realism.
124. See Empire, supra note I at 82–83; “Reply”, supra note 1 at 297–302. It is this insistence on the possibility of right answers which distinguishes Dworkin from strong interpretivists like Fish and Rorty.
125. If fact, Dworkin states that there is no meaningful distinction between an interpretive statement (e.g., Hamlet is a play about self-doubt) and a statement with putative metaphysical status (e.g., Hamlet really is a play about self doubt). As he states, the second “objective” claim “is not a further claim at all but just the same claim put in a slightly more emphatic form.” “Reply”, supra note 1 at 297.
126. This is the core of Dworkin’s naturalized turn. See infra section VII. Dworkin accepts the anti-realistic assertion that all answers to interpretive questions are founded on the interpreter’s set of values, but also maintains that right answers (in a normative sense) are possible. Further, Dworkin argues, the right-wrong thesis (a necessary prerequisite for interpretation) demands that proponents of an interpretation “X” accept their interpretive judgments as unqualified assertions. Persons will be unable to engage in interpretation, argues Dworkin, unless they treat their interpretive judgments as objectively correct. Additionally, even if a “best” or “right” answer only means “likely to persuade”, then the one persuaded must accept the right-wrong thesis, because unless a person believes that a proposed answer is “right”, he has no reason to be persuaded. Finally, Dworkin argues that since persons do in fact interpret, and are persuaded, they must accept the right-wrong thesis, which necessitates that they treat their interpretive judgments as assertions simpliciter. See Empire, supra note 1 at 80–82; “Reply”, supra note 1 at 297–302.
127. See Empire, supra note 1 at 76–86; “Reply”, supra note 1 at 302.
128. “Reply”, supra note 1 at 300.
129. Ibid, at 300–01.
130. Ibid, at 298, 300.
131. Ibid, at 297–303. It is important to note that Dworkin and the strong interpretivists (Fish and Rorty) share a distrust for “external” metaphysical inquiry. However, the conclusion which Fish and Rorty draw (a quasi-skeptical rejection of the pursuit of “right” answers) is not embraced by Dworkin. Dworkin concludes that the lack of a metaphysically privileged vantage makes “external” metaphysical inquiry valueless but does not preclude internal non-skepticism. This distinction identifies Dworkin as a naturalized “internal” realist, and shows his separation from the robust (quasi-skeptical) interpretivism of Fish and Rorty.
132. The following discussion is taken from “Interpretive Turn”, supra note 2; “Metaphysics”, supra note 79.
133. Moore contends that jurisprudence (legal theory) does not require the same level of coherence with past political decisions as does actual legal practice (see “Interpretive Turn”, supra note 2 at 948). In a related way, Moore also argues that metaphysical inquiry may be both helpful and necessary to unpack legal concepts and to offer meaningful criticism of legal practice. Ibid, at 955–56.
Moore draws a distinction between the practice of law (as engaged in by judges) and the practice of legal theory (as engaged in by academic jurisprudes). Moore agrees with Dworkin that the practice of law is, and should be, interpretive. Moore accepts that integrity with past political decisions is necessary in order forjudges to justify the exercise of present coercive power. Moore does not, however, accept that abstract jurisprudence need necessarily exhibit the same level of integrity to past political decisions. Ibid, at 947–48.
Moore’s argument for jurisprudence’s independence from a strict “fit” requirement begins with an explanation of when creative interpretation is justified. According to Moore’s reading of modern Dworkin, creative interpretation is justified when a “complex interpretive attitude towards the rule of some practice exists.” Ibid, at 944 (quoting Empire, supra note 1 n. 66 at 47). A complex interpretive attitude exists when 1) the practice has a point or value, and 2) the requirements of the practice are sensitive to its point. “Interpretive Turn”, supra note 2 at 944. Thus, interpretation only makes sense when some set of values justifies why persons should engage in it. Ibid.
To illustrate when creative interpretation is justified, Moore compares the practice of kindness to the practice of courtesy. Ibid, at 946–47. Moore argues that interpretation of courtesy’s “texts” (its past forms) is justified because in order to be courteous, one must intentionally use courtesy’s past forms. Ibid. Kindness, on the other hand, does not require interpretation of past texts because one may be kind without attempting to ape the past forms which kindness has taken. Ibid.
Moore contends that jurisprudence (like kindness) is not interpretive because there is no point in making the practices of judges authoritative for legal theorists. Ibid, at 947–48. According to Moore, the possible texts for a legal theorist to interpret are 1) statutes, constitutions, and judicial opinions, 2) judges’ implicit jurisprudential theories, and 3) the texts of prior legal theorists. Ibid, at 947. As Moore sees it, jurisprudence is a balance between law as practised and the best justification for the practice. Ibid. Jurisprudes may wish to engage in cross-cultural, cross-temporal or Utopian analysis without resort to actual texts. Thus, Moore contends that there is no point in general jurisprudence which could justify a position of integrity to prior legal texts in the same way that statutes and constitutions are authoritative forjudges. Ibid. Therefore, since no point justifies a position of integrity for jurisprudence, jurisprudence is not necessarily an interpretive enterprise. Ibid. at 955–56.
134. “Interpretive Turn”, supra note 2 at 947–57.
135. See Empire, supra note 1 at 80–86; “Reply”, supra note 1 at 297–303.
136. Thus, Moore is directly contrasting Dworkin’s naturalized realism with the more robust realism which Moore advocates. See “Interpretive Turn”, supra note 2 at 952–57; see also “Metaphysics”, supra note 79 (identifying Moore’s brand of realism).
137. Empire, supra note 1 at 85–86, “Reply”, supra note 1 at 297–303.
138. “Interpretive Turn”, supra note 2 at 953–57.
139. Ibid, at 955.
140. Ibid, at 955. Further, Moore argues that analysts will have to “step outside” the specific interpretive enterprise in order to argue for legal change. Ibid. In Moore’s view, it is necessary for legal theorists to consciously reject the internal point of view in order to evaluate how well their culture’s interpretive practices realize the internal values which support them. Ibid. Finally, Moore contends that interpretivist practitioners cannot dismiss metaphysical inquiries because legal texts are implicitly metaphysical. Ibid, at 956–57. Terms like “caused”, “equal protection”, and “dead” are fundamentally metaphysical, and the best interpretation of texts, argues Moore, will be the one which comes closest to getting the metaphysics right. Ibid.
141. “Metaphysics”, supra note 79 at 491–94.
142. Ibid, at 494–506.
143. Ibid.
144. See Empire supra note 1 at 76–86; “Reply” supra note 1 at 299–301.
145. Scientific analysis of law is not “external”, as Moore claims, but internal to different conventions. Scientific analysis of law simply accepts a different set of theories as its pre-interpretive context and asks a different set of questions. It is no more external (in the sense of being non-interpretive or more metaphysically objective) than any other enterprise. See Structure, supra note 16. Further, Dworkin’s point is that in order to answer the important interpretive questions, one must employ the internal vantage point, and that supposed external analysis does not, and should not, be used to limit the range of possible answers. See Empire, supra note 1 at 76–86.
146. Ibid. at 85–86 Dworkin calls this internal non-skepticism.
147. Ibid, at 83–85.
148. See “Reply”, supra note 1 at 299–301. In this he borrows much from the anti-realistic conventionalism of Fish and Rorty.
149. It is of great normative value to be able to talk about answers to interpretive questions as better or worse, right or wrong. Strong interpretivism does not support this intuitive semantics. Strong interpretivists talk about “keeping the conversation going,” but if there is no way to discriminate between a better or worse answer to an interpretive question, how can those engaged in the enterprise have any sense where their conversation is going (if the conversation is pursuing a productive avenue or a dead end)?
150. See Structure, supra note 16 passim.
151. See supra notes 3–10 and accompanying text.
152. Generally, metatheoretic arguments (arguments designed to prove the truth or consistency of a particular theory) must employ methods more stringent than those the target theory utilizes. The abductive argument for scientific realism goes something like this:
1) If a theory is approximately true, then it will typically be empirically successful;
2) If a theory’s terms actually genuinely refer, then it will typically generally be empirically successful;
3) Scientific theories are generally empirically successful;
4) Therefore, they are approximately true and their terms genuinely refer.
5) Scientific realism (approximate truth of scientific theories and actual reference for the terms posited by scientific theories) is the best (only) explanation for the empirical success of science.
See Laudan, Larry, “A Confutation of Convergent Realism” in Scientific Realism 218 at 220,Google Scholar supra note 3. The problem here is that both premise 1 and premise 2 rely on exactly what they are trying to prove (realism). It may be that theories can be empirically successful without being approximately true and without having referential terms (certainly phlogiston theory was “successful” for many years and is now held to be patently false and without referential terms). It is theory-level realism which demands approximate truth and reference. But such theory-level commitments cannot be used to support a metatheoretic argument. Thus, the methodological problem. See Fine, Arthur, “The Natural Ontological Attitude” in Scientific Realism,Google Scholar supra note 3 at 88–91.
153. See “Law as Interpretation”, supra note 1 at 540–50.
154. Ironically, this is a move favored by some in the pragmatist/legal realist camps. See e.g. Posner, Richard, Problems of Jurisprudence (Cambridge: Harvard University Press, 1990)Google Scholar chapter 6 (arguing that what makes hard cases hard is the fact that there is no obviously right answer, or that an answer is only right from the perspective of some particular political or philosophical ideology). For both Posner and Dworkin ontology is theory-laden and therefore defined conventionally, but whereas Judge Posner uses this observation towards a skeptical solution, Dworkin’s naturalized realism insists that right answers to interpretive questions are possible.
155. Thus, “slavery is wrong” not because there exists some transcendental realm of forms to which moral propositions can correspond, but rather because within the most persuasive extant moral paradigm (e.g. neo-Kantian individual rights theory, libertarianism, rule utilitarianism), slavery has no place. It does not cohere with other specific answers sanctioned by the paradigm, nor does it provide a principled future for the practitioners who accept this moral context. In fact, within certain moral paradigms (neo-Kantian rights theory) the question of slavery isn’t even a close one. Slavery so profoundly conflicts with the basic principles of that paradigm, it is analogous to the question, “What is the speed limit?”.
156. See Laudan, Larry, “A Confutation of Convergent Realism” in Scientific Realism, supra note 3.Google Scholar
157. See Fine, Arthur, “The Natural Ontological Attitude” in Scientific Realism, supra note 3.Google Scholar
158. For an interesting parallel position in the philosophy of science, see the more recent works of Hilary Putnam. Hilary Putnam, Mind, Language and Reality, supra note 7 (outlining a position of internal realism wherein, within a given system of thought, reference to objects and true or false statements about the nature and properties of objects are possible, but asserting that it is not possible to get external to the system of thought and maintain a basis for reference apart from it); see also Putnam, Hilary, History, Truth and Reason (New York: Cambridge University Press, 1981).CrossRefGoogle Scholar
159. The principle of theory selection known as “Ockham’s razor” dictates that naturalized realism be preferred to classic realism because naturalized realism explains the same phenomena as does classic realism but does so more simply. Naturalized realism captures the intuitive semantics of truth without: a) positing transcendent referents, b) having to provide an explanation of how theory-neutral perception is possible, and c) without depending upon a theory of “physical to theoretical” correspondence.
160. Right answers are localized to a particular context, but a right answer will be cross-contextually correct if a given context (paradigm) which supports the answer is superior to (more persuasive than) a paradigm which does not support the answer.
161. See Fine, Arthur, “The Natural Ontological Attitude” in Scientific Realism,Google Scholar supra note 3. Fine is discussing the naturalized turn in the philosophy of science but his explanation of the naturalized ontological attitude (“NOA”) provides a good explanation of the naturalized realism which is implicit in Dworkin’s integrity thesis. Fine states that NOA:
recognizes in “truth” a concept already in use and agrees to abide by the standard rules of usage. Thus NOA respects the customary “grammar” of ‘truth’ (and its cognates). Likewise NOA respects the customary epistemology, which grounds judgments of truth in perceptual judgments and various confirmation relations. As with the use of other concepts, disagreements are bound to arise over what is true. […] NOA pretends to no resources to settling these disputes, for NOA takes to heart the great lesson of twentieth-century analytic and Continental philosophy, namely, that there are no general methodological or philosophical resources for deciding such things. The mistake common to realism and all the antirealisms alike is their commitment to the existence of such nonexistent resources.
Ibid, at 101. Compare this passage to Dworkin’s own view of what it means for someone to hold a particular belief. Dworkin states:
there is no important difference in philosophical category or standing between the statement that slavery is wrong and the statement that there is a right answer to the question of slavery, namely that it is wrong. I cannot intelligibly hold the first opinion as a moral opinion without also holding the second. Since external skepticism [anti-realism] offers no reason to retract or modify the former, it offers no reason to retract or modify the latter either. They are both statements within rather than about the enterprise of morality…. I hasten to add that recognizing the crucial point I have been stressing – that the “objective” beliefs most of us have are moral, not metaphysical, beliefs, that they only repeat and qualify other moral beliefs – in no way weakens these beliefs or makes them claim something less or even different from what they might be thought to claim. For we can assign them no sense, faithful to the role they actually play in our lives, that makes them not moral claims. If anything is made less important by that point, it is external skepticism, not our convictions.
Empire, supra note 1 at 82–83. Thus to believe that slavery is wrong or that any two neutrons will strongly resist being forced to occupy identical space/time coordinates is to accept the “grammar” of truth as commonly understood. The legal theorist and the scientist within their respective paradigms accept the justified assertions supported by those paradigms as true. In fact, they must do so in order to function effectively. At the same time, they may accept the proposition that they have no way of “objectively” proving that their whole set of theoretic assumptions corresponds to the “furniture of the universe.” But so what? They aren’t in the business of pursuing correspondence. The physicist is engaged in trying to provide explanations which allow prediction and intervention in the phenomena which make up the physical world. The legal theorist is attempting to provide a set of rules for governing human behavior which promotes a just society. Arguments refuting their beliefs about slavery or neutrons are possible but such arguments will be scientific or moral, not metaphysical, and the new beliefs which the new persuasive arguments entail will themselves be accepted as true in a straightforward sense.