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Staying Busy While Doing Nothing? Dworkin’s Complicated Relationship with Pragmatism

Published online by Cambridge University Press:  02 February 2016

Hillary Nye
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Abstract

Ronald Dworkin was an outspoken critic of pragmatism, and engaged in extensive and at times virulent disagreements with Richard Posner and Richard Rorty. Yet, I argue here, that Dworkin himself had a number of deeply pragmatist commitments. I examine how we can square these two aspects of Dworkin’s thought. I suggest that part of the answer lies in seeing that there are different strands of pragmatism, and that Dworkin falls on the more objective, Peircean side of the divide, while Rorty and Posner belong more in the skeptical, Jamesian camp. But even with this distinction in mind, we should note the substantial overlap between the views of Dworkin and his pragmatist interlocutors—in particular, their anti-archimedeanism and their rejection of metaphysics. Attentiveness to this shared perspective is helpful in illuminating Dworkin’s disagreements with legal positivists. The more foundational divide, I argue, is between analytic legal philosophers who aim to provide an account of the metaphysics of law, and those, like Dworkin and the pragmatists, who reject such a project. I conclude by discussing the implications of Dworkin’s pragmatism for legal philosophy. I argue that it may lead to what some have recently called ‘eliminativism’, and engage with some new and prominent work on this current topic in legal philosophy.

Type
Research Article
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Canadian Journal of Law & Jurisprudence , Volume 29 , Issue 1 , February 2016 , pp. 71 - 95
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2016 

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References

1. And vice versa. Dworkin and Posner had an especially public and vicious exchange, beginning with Dworkin’s review of two of Posner’s books in the New York Review of Books: Ronald Dworkin, “Philosophy and Monica Lewinsky”, Book Review of An Affair of State: The Investigation, Impeachment, and Trial of President Clinton and The Problematics of Moral and Legal Theory by Richard Posner, The New York Review of Books (9 March 2000), online: http://www.nybooks.com/articles/archives/2000/mar/09/philosophy-monica-lewinsky/ [Dworkin, “Lewinsky”]. This was followed by a letter from Posner and a reply from Dworkin, also published in the New York Review of Books: Richard Posner and Ronald Dworkin, “‘An Affair of State’: An Exchange” Letters to the Editor, The New York Review of Books (27 April 2000), online: http://www.nybooks.com/articles/archives/2000/apr/27/affair-state-exchange/. Posner responded further in Richard A Posner, “Dworkin, Polemics, and the Clinton Impeachment Controversy” (2000) 94(3) Nw UL Rev 1023 at 1032, in which Posner refers to their “twenty years of mutual intellectual enmity”. Though pragmatism is not the only issue in this exchange, it is certainly one source of disagreement.

2. Ronald Dworkin, “Pragmatism, Right Answers, and True Banality” in Michael Brint & William Weaver, eds, Pragmatism in Law and Society (Boulder: Westview Press, 1991) 359 [Dworkin, “Pragmatism”]. Dworkin is responding here to an essay by Richard Rorty in the same volume: Richard Rorty, “The Banality of Pragmatism and the Poetry of Justice” in Brint & Weaver, ibid, 89.

3. Dworkin, “Pragmatism”, supra note 2 at 359. My title, it should be clear, draws on this rather harsh assessment of pragmatism.

4. Dworkin, Ronald, Justice for Hedgehogs (Cambridge: Harvard University Press, 2011).Google Scholar

5. Pragmatism is a broad term for many related positions. Even one of its founders, Peirce, thought the term had been so misused that it was better to abandon it in favor of ‘pragmaticism’, a term “ugly enough to be safe from kidnappers”. Charles S Peirce, “What Pragmatism Is” (1905) 15:2 Monist 161 at 166. Thus, here I aim only to summarize some broad commitments that most pragmatists would share. But, as I will discuss below, there are two major strands of thinking within the pragmatist tradition. For an excellent tracing of these alternative pragmatist trajectories (roughly, the Peircean and the Jamesian), see Misak, Cheryl, The American Pragmatists (Oxford: Oxford University Press, 2013).Google Scholar However, for now, I concentrate on what Peirce and James share.

6. Charles S Peirce, “How to Make Our Ideas Clear” in Vincent Tomas, ed, Essays in the Philosophy of Science (New York: The Liberal Arts Press, 1957) at 42.

7. William James, “What Pragmatism Means” in Bruce Kuklick, ed, Pragmatism (Indianapolis: Hackett, 1981) 25 at 26.

8. Against the a priori method, Peirce argues that “the mind can only transform knowledge, but never originate it, unless it be fed with facts of observation.” Peirce, “How to Make Our Ideas Clear”, supra note 6 at 33. A priori reasoning ignores experience and attends only to “that which we find ourselves inclined to believe.” Charles S Peirce, “The Fixation of Belief” in Tomas, supra note 6 at 20. “It makes of inquiry something similar to the development of taste.” Ibid at 23.

9. As James puts it, pragmatism “will entertain any hypothesis, she will consider any evidence.” James, “What Pragmatism Means”, supra note 7 at 38.

10. Ibid at 33.

11. This is Dworkin’s way of putting the same idea, as I will elaborate below.

12. As Peirce writes, “nothing out of the sphere of our knowledge can be our object”. Peirce, “Fixation of Belief”, supra note 8 at 13.

13. Misak, Cheryl, Truth, Politics, Morality: Pragmatism and Deliberation (London: Routledge, 2000) at 51.Google Scholar

14. “A pragmatist … turns away from abstraction and insufficiency, from verbal solutions, from bad a priori reasons, from fixed principles, closed systems, and pretended absolutes and origins.” James, “What Pragmatism Means”, supra note 7 at 28. The pragmatic approach is an “attitude of looking away from first things, principles, ‘categories,’ supposed necessities; and of looking towards last things, fruits, consequences, facts.” Ibid at 29 [emphasis omitted].

15. Dworkin, “Pragmatism”, supra note 2 at 361-62.

16. Ibid at 362: “This is the level Rorty means to occupy: He wants to say, himself now occupying that external level, that these external claims are metaphysical, foundational, and other bad things…The difficulty with this defense, however, is that the external level that Rorty hopes to occupy does not exist.”

17. Dworkin, Hedgehogs, supra note 4 at 60-61. A similar argument can be seen in Ronald Dworkin, “Objectivity and Truth: You’d Better Believe It” (1996) 25:2 Phil & Pub Affairs 87 at 95-96.

18. Dworkin, “Pragmatism”, supra note 2 at 364.

19. Ibid.

20. In the debate about whether ordinary objects exist, which seems to be preoccupied with tables in particular, see for example Inwagen, Peter van, Material Beings (Ithaca: Cornell University Press, 1990),Google Scholar denying the existence of tables, and Thomasson, Amie L, Ordinary Objects (Oxford: Oxford University Press, 2007)CrossRefGoogle Scholar arguing for the existence of ordinary objects such as tables.

21. See, e.g., Dickson, Julie, Evaluation and Legal Theory (Oxford: Hart, 2001) at 17Google Scholar; Scott Shapiro, Legality (Cambridge: Harvard University Press, 2011) at 10-12; Joseph Raz, “Can There Be a Theory of Law?” in MP Golding & WA Edmundson, eds, The Blackwell Guide to the Philosophy of Law and Legal Theory (Oxford: Blackwell, 2005) 324.

22. There is a sense in which Rorty is sloppy in his critique of such metaphysics. He should not say that reality doesn’t contain mountains—to say that is to join the metaphysical dispute he rejects. He should, like Dworkin, say that we should do away with this question altogether: we can’t have access to the essence of things. But the general tenor of his objections to metaphysical realism shows that the doing away with such questions is precisely what he is after.

23. Posner, Richard A, The Problems of Jurisprudence (Cambridge: Harvard University Press, 1990) at 28Google Scholar [Posner, Problems].

24. Ibid at 226. See generally Part II: The Ontology of Law (ch 5, 6, and 7).

25. Peirce, “How to Make Our Ideas Clear”, supra note 6 at 56.

26. Ibid at 42.

27. It is worth noting that skepticism and relativism are distinct positions—skepticism insists that there is no truth of the matter, while relativism is a form of realism, in claiming that there is a truth of the matter, but it is relative to the believer. Both Rorty and Posner are sometimes inconsistent about whether they embrace skepticism or relativism about truth. Dworkin criticized Posner for this inconsistency; see infra note 99 and associated text.

28. “There is no activity called ‘knowing’ which has a nature to be discovered, and at which natural scientists are particularly skilled. There is simply the process of justifying beliefs to audiences.” Richard Rorty, Philosophy and Social Hope (London: Penguin Books, 1999) at 36.

29. Rorty, Richard, Philosophy and the Mirror of Nature (Princeton: Princeton University Press, 1979) at 176.Google Scholar

30. Misak, The American Pragmatists, supra note 5 at 58 [emphasis in original].

31. Posner, Problems, supra note 23 at 464. See also ibid at 28, where Posner says that pragmatism “is doubtful of finding “objective truth” in any area of inquiry”.

32. Peirce, “Fixation of Belief”, supra note 8 at 13. Against skeptics who suggest we begin by doubting everything, he says that “the mere putting of a proposition into the interrogative form does not stimulate the mind to any struggle after belief.” Ibid.

33. Ibid at 12: “The irritation of doubt causes a struggle to attain a state of belief. I shall term this struggle Inquiry” [emphasis in original].

34. Rorty, Philosophy and Social Hope, supra note 28 at xxxii.

35. Ibid at 82.

36. Ibid.

37. Ibid at 81.

38. Ibid at 270.

39. Richard A Posner, “The Problematics of Moral and Legal Theory” (1997) 111:7 Harv L Rev 1637 at 1640-41.

40. Ibid at 1640.

41. Ibid at 1642.

42. Dworkin, Hedgehogs, supra note 4 at 152.

43. See supra note 33 and associated text.

44. An interpretive concept is one that is shared when we understand its “correct use to depend on the best justification of the role it plays for us.” Dworkin, Hedgehogs, supra note 4 at 158. This is to be distinguished from criterial concepts and natural kind concepts, where we have to have a decisive test of application if we are to share the concept.

45. See ibid at 173-74, for a complete list.

46. Ibid at 174.

47. Ibid at 175.

48. Ibid at 177.

49. Ibid.

50. Ibid.

51. Ibid.

52. I briefly unpack Peirce’s objective view of truth in what follows, but for an excellent and deep analysis of Peircean pragmatism and a defense of its objective character, see CJ Misak, Truth and the End of Inquiry: A Peircean Account of Truth, 2nd ed (Oxford: Clarendon Press, 2004).

53. Peirce, “How to Make Our Ideas Clear”, supra note 6 at 51.

54. Ibid at 53.

55. Ibid at 53-54 [footnote omitted].

56. Peirce, “Fixation of Belief”, supra note 8 at 30.

57. Ibid at 12.

58. Dworkin, Hedgehogs, supra note 4 at 177.

59. Ibid.

60. “Internal skepticism about morality is a first-order, substantive moral judgment. It appeals to more abstract judgments about morality in order to deny that certain more concrete or applied judgments are true. External skepticism, on the contrary, purports to rely entirely on second-order, external statements about morality. … internal skepticism stands within first-order, substantive morality while external skepticism is supposedly Archimedean: it stands above morality and judges it from outside.” Ibid at 31. Dworkin has made this point about skepticism consistently: see Ronald Dworkin, Law’s Empire (Cambridge: Harvard University Press, 1986) at 76-86, and his extended treatment of the issue in “Objectivity and Truth”, supra note 17.

61. Dworkin, Hedgehogs, supra note 4 at 25: “I insist that any sensible moral skepticism must be internal to morality.”

62. Ibid at 37. “I mean my arguments in the next few chapters to embrace all forms of external skepticism and, indeed, all forms of what might seem the opposite view: that we can have external, nonmoral reasons for believing that our moral opinions can be true.”

63. Ibid.

64. Ibid at 12.

65. Ibid at 44. CI Lewis, the heir to Peirce’s views about truth and objectivity, makes the same argument: “Those who would be serious and circumspect and cogent in what they think, and yet tell us that there are no valid norms or binding imperatives, are hopelessly confused, and inconsistent with their own attitude of assertion.” Clarence Irving Lewis, An Analysis of Knowledge and Valuation (La Salle: The Open Court, 1946) at 481.

66. See Misak’s discussion in The American Pragmatists, supra note 5 at 50-52.

67. Dworkin, Hedgehogs, supra note 4 at 8.

68. Dworkin, Law’s Empire, supra note 60 at 111.

69. Dworkin, “Objectivity and Truth”, supra note 17 at 97. See also Dworkin, Hedgehogs, supra note 4 at 54. This is a Peircean pragmatist view of objectivity, a view very similar to that held by Peirce’s successor, Lewis. Misak traces the Peircean strand of pragmatism through Lewis, who held that “[w]hat is valuable is not equivalent to what is immediately perceived as valuable by this or that person.” Misak, The American Pragmatists, supra note 5 at 187. Put another way, “For Lewis, value ascriptions are subjective in the sense that they boil down to how human beings would experience a thing or an act. But they are not subjective in the sense that if I value A, then A is valuable or in the sense that only if I value A is A valuable.” Ibid at 188. This is precisely Dworkin’s objectivity.

70. Dworkin, “Objectivity and Truth”, supra note 17 at 98.

71. Ibid.

72. Peirce, “Fixation of Belief”, supra note 8 at 25.

73. See William James, “The Will to Believe” in The Will to Believe and Other Essays in Popular Philosophy (New York: Dover, 1956).

74. Peirce, “Fixation of Belief”, supra note 8 at 25.

75. Ibid at 27.

76. Peirce, “How to Make Our Ideas Clear”, supra note 6 at 54.

77. Dworkin, Hedgehogs, supra note 4 at 9.

78. Ibid.

79. Ibid.

80. Ibid at 27. In his appeal to the ordinary, he is taking seriously our experience of moral reasoning and judgment. This is very pragmatist. For example, he sounds very much like Peirce insisting that we cannot be skeptical about everything when he says: “That there are truths about value is an obvious, inescapable fact. When people have decisions to make, the question of what decision they should make is inescapable, and it can be answered only by noticing reasons for acting one way or another”. Ibid at 24. There are some ways of viewing the world that we cannot eschew just by adopting a skeptical posture.

81. Ibid at 37.

82. Ibid at 38.

83. Ibid at 109. The project of moral responsibility is an individual work; we can only really test integrity for our own, authentic, set of views. Our encounters with others do however play a role. There is a noteworthy similarity between Dworkin and Peirce here too. Dworkin states: “Of course it should give us pause that others disagree with what we find so plain. How can I be sure that I am right when others, who seem just as intelligent and sensitive, deny that I am? But we cannot take the fact of disagreement itself to count as an argument that our moral convictions are mistaken.” Ibid at 47. For Peirce, the idea is the same: “The man who adopts [the method of tenacity] will find that other men think differently from him, and it will be apt to occur to him, in some saner moment, that their opinions are quite as good as his own, and this will shake his confidence in his belief.” Peirce, “Fixation of Belief”, supra note 8 at 16. Just as with Dworkin, this only prompts doubt, which spurs us seek settled beliefs. It does not disprove the view.

84. Peirce, “Fixation of Belief”, supra note 8.

85. Dworkin, Hedgehogs, supra note 4 at 39.

86. Peirce, “Fixation of Belief”, supra note 8 at 13 [emphasis in original].

87. Ibid.

88. If I may be permitted a speculative sociological point, I think people take issue with Dworkin’s ‘one right answer’ claim because they confuse the idea of there being a right answer with the idea that we can be certain of what it is. We can never be certain, and in a very Peircean way, Dworkin recognizes that. But he sometimes speaks with such certainty that it can mislead his reader into thinking he means to make a stronger claim. In fact, he is clear about the lack of certainty we can assert: “Absolute confidence or clarity is the privilege of fools and fanatics. The rest of us must do the best we can: we must choose among all the substantive views on offer by asking which strikes us, after reflection and due thought, as more plausible than the others. And if none does, we must then settle for the true default view, which is not indeterminacy but uncertainty.” Dworkin, Hedgehogs, supra note 4 at 95-96.

89. Peirce, “Fixation of Belief”, supra note 8. As Peirce writes, “the true conclusion would remain true if we had no impulse to accept it; and the false one would remain false, though we could not resist the tendency to believe in it.” Ibid at 7.

90. Dworkin makes the point that we can say that a particular political solution or scheme seems right to us for the time being, even if we lack a comprehensive theoretical backing for it. “That is not to say, however, that the particular accommodation proposed for the present case is the best one because it seems or feels best to us.” Dworkin, “Pragmatism”, supra note 2 at 372-73. This is a crucial distinction, and it is precisely the difference between Peirce and Rorty: where Rorty thinks that our own feelings can validate a belief, Dworkin and Peirce do not.

91. I want to note that, while I think it is appropriate to label him as such, I am uninterested in having a terminological dispute. Perhaps because of Dworkin’s resistance to the narrower, skeptical subset of pragmatism, he would reject the label altogether. But in light of the arguments made above, it seems clear that he has some deeply pragmatist commitments, and it is the substance of these commitments, and their implications, that matter, not the label.

92. Richard A Posner, “What Has Pragmatism to Offer Law?” in Brint & Weaver, supra note 2 at 36-37.

93. Ibid at 37.

94. Richard A Posner, “Pragmatic Adjudication” (1996) 18:1 Cardozo L Rev. See also Posner, Problems, supra note 23 at 457: “We might do best to discard the term “interpretation” and focus directly on the consequences of proposed applications of statutory and constitution provisions to specific disputes.”

95. Posner, “What Has Pragmatism to Offer Law?”, supra note 92 at 39.

96. Ibid.

97. Ibid at 42.

98. Dworkin, “Lewinsky”, supra note 1.

99. See Ronald Dworkin, “Darwin’s New Bulldog” in Justice in Robes (Cambridge: Harvard University Press, 2006) 75 at 89-91, for a good discussion of relativism and Posner’s confused and contradictory versions of it. The point is being made against Posner but applies equally to Rorty.

100. Ibid at 76.

101. Posner believes that his pragmatism implies that we should do away with theorizing about law’s ontology, dismissing such questions as empty. And while we can disagree with the relativistic, economic-focused project of judging that he thinks should replace these questions, it is worth exploring whether he is right about the negative point.

102. Dworkin, Hedgehogs, supra note 4 at 402-03.

103. Ibid at 403.

104. Ibid at 407.

105. Ibid at 406: “Legal rights are those that people are entitled to enforce on demand, without further legislative intervention, in adjudicative institutions that direct the executive power of sheriff or police.”

106. There can still be room in this picture for a distinction between ‘legal theory’ and ‘moral theory’ more broadly. There are some arguments more properly suited to courts and legislatures, and we can understand legal theory as the domain of moral and political theory that is concerned with the questions about these kinds of coercive institutions and how they operate. We can do all this by appealing to a pretheoretical idea of what counts as a legal institution, and without assuming that all such institutions have an essential nature we could search for. And further, this doesn’t mean that only moral arguments will be raised: lawyers will still appeal to history and statutes and decisions, as they presently do. The key is to see that if we want to assess an argument for the relevance of a particular statute, there is at bottom some moral question about the appropriateness of consistency with past decisions, or the value of predictability, or some other normative justification for that legal claim.

107. Dworkin, Hedgehogs, supra note 4 at 406.

108. See supra note 21.

109. Dworkin, Hedgehogs, supra note 4 at 55.

110. Ronald Dworkin, “The Concepts of Law” in Justice in Robes, supra note 99 at 223.

111. Liam Murphy, What Makes Law (Cambridge: Cambridge University Press, 2014) at 89.

112. Scott Hershovitz, “The End of Jurisprudence” (2015) 124:4 Yale LJ 1160 at 1186.

113. Ibid at 1193.

114. Ibid.

115. Mark Greenberg, “The Moral Impact Theory of Law” (2014) 123:5 Yale LJ 1288 at 1323. To clarify a terminological point, the ‘moral profile’ is a term Greenberg uses for all our moral obligations, powers, and privileges. Ibid at 1308.

116. Ibid at 1300, n 28.

117. Jeremy Waldron, “Jurisprudence for Hedgehogs” (2013) New York University School of Law Working Paper No. 13-45 at 13-16, online: Social Science Research Network http://ssrn.com/abstract=2290309.

118. Ibid at 7 [emphasis in original].

119. Dworkin, Hedgehogs, supra note 4 at 409.

120. Ibid at 402. The point is not that his ideas changed, but that he needed to present them differently. I take this to be the right view, in part because of the consistency I have tried to show exists over the years in his work, and in part because this seems to be how he sees it. In a footnote to the chapter on Law, he says that it is meant to supplement his earlier works, not replace them. Ibid at 485, n 1.

121. Greenberg, “Moral Impact Theory”, supra note 115 at 1300, n 28. Greenberg sees the Justice for Hedgehogs position as “a very different view.” Ibid.

122. Hershovitz, “End of Jurisprudence”, supra note 112 at 1162.

123. Ronald Dworkin, Taking Rights Seriously, (Cambridge: Harvard University Press, 1977) at 76. I have tried to show throughout that this is not just a matter of seeing Dworkin through a pragmatist lens, or reinterpreting his work. It is a matter of taking seriously the substantial and powerful commitments he articulated across his vast body of work.

124. Dworkin, “Pragmatism”, supra note 2 at 360.

125. See, e.g., Kenneth Einar Himma, “Situating Dworkin: The Logical Space Between Legal Positivism and Natural Law Theory” (2002) 27 Okla City UL Rev 41 at 91: Himma sets up a dichotomy according to which Dworkin’s theory either “expresses validity criteria in every conceptually possible legal system,” or is just a theory of adjudication that is contingently true in some legal systems, in which case it is consistent with positivism.

126. Dworkin, Hedgehogs, supra note 4 at 38.

127. Rorty, Philosophy and Social Hope, supra note 28 at 33-34.