In Praise of Realism (and Against \u27Nonsense\u27 Jurisprudence)

Ronald Dworkin describes an approach to how courts should decide cases that he associates with Judge Richard Posner as a Chicago School of antitheoretical, no-nonsense jurisprudence. Since Professor Dworkin takes his own view of adjudication to be diametrically opposed to that of the Chicago School, it might seem fair then, to describe Dworkin\u27s own theory as an instance of protheoretical, nonsense jurisprudence. That characterization is not one, needless to say, that Professor Dworkin welcomes. Dworkin describes his preferred approach to jurisprudential questions, to be sure, as theoretical, in opposition to what he calls the practical orientation of the Chicago School. But while there is a real dispute between Dworkin and Posner, it is not one illuminated by the contrast between theory and practice. It is, rather, a dispute about the kind of theory that is relevant and illuminating when it comes to law and adjudication. And the fault line marked by this dispute is profound indeed, one that extends far beyond Dworkin and Posner and has a venerable and ancient history that includes Thucydides and Plato, Nietzsche and Kant, Marx and Hegel, up to Geuss and Rawls in the present. I shall describe it, instead, as a dispute between Moralists and Realists, between those whose starting point is a theory of how things (morally) ought to be versus those who begin with a theory of how things really are. The Essay endeavors to show that our contemporaries, Ronald Dworkin and Richard Posner, are reenacting a version of the dispute between the paradigmatic philosophical moralist Plato and the paradigmatic historical realist Thucydides. The Essay concludes by connecting the Posner-Dworkin dispute with recent realist critiques of Rawlsian political philosophy, trying to clarify the grounds for skepticism (deriving broadly from Hume and Nietzsche) about the practical value of such theorizing

Explaining Theoretical Disagreement

Scott Shapiro has recently argued that Ronald Dworkin posed a new objection to legal positivism in Law\u27s Empire, to which positivists, he says, have not adequately responded. Positivists, the objection goes, have no satisfactory account of what Dworkin calls theoretical disagreement about law, that is, disagreement about the grounds of law or what positivists would call the criteria of legal validity. I agree with Shapiro that the critique is new but disagree that it has not been met. Positivism cannot offer an explanation that preserves the Face Value of theoretical disagreements, because the only intelligible dispute about the criteria of legal validity is an empirical or head count dispute, that is, a dispute about what judges are doing, and how many of them are doing it (since it is the actual practice of officials and their attitudes towards that practice that fixes the criteria of legal validity according to the positivist). Positivism, however, has two other explanations for theoretical disagreement, which explain away rather than preserve the Face Value disagreement. According to positivists, theoretical disagreements are either (1) disingenuous, in the sense that the parties, consciously or unconsciously, are really trying to change the law—they are trying to say, as Dworkin puts it, what it should be not what the law is, or (2) simply predicated on error because parties to the disagreement honestly think there is a fact of the matter about what the grounds of law are, and thus what the law is, in the context of their disagreement, but they are mistaken, because, in truth, there is no fact of the matter about the grounds of law in this instance precisely because there is no convergent practice of behavior among officials constituting a Rule of Recognition on this point. This Article explores the Disingenuity and Error Theory accounts of theoretical disagreement, with attention to the theoretical desiderata (for example, simplicity, consilience, methodological conservativism) at stake in choosing between competing explanatory theories. Particular attention is given to the best explanation for Riggs v Palmer in light of the actual historical context of the decision and other opinions by the Riggs judges in contemporaneous cases