22 October 2013


From 'The End of Empire: Dworkin and Jurisprudence in the 21st Century' by Brian Leiter in (2005) Rutgers Law Journal -
[I] shall focus, in particular, on the well-known and distinctive jurisprudential contributions of Ronald Dworkin—especially as crystallized in his 1986 book Law’s Empire—which are now, I fear, a prime candidate for views the field has outgrown. This may seem a surprising suggestion to many outside the field of legal philosophy, but, as I shall suggest, it is increasingly the sotto voce—and sometimes manifest—consensus within. 
The New York University School of Law web page describes Ronald Dworkin as "probably the most influential figure in contemporary Anglo-American legal theory” and says “Dworkin is probably one of the two or three contemporary authors whom legal scholars will be reading 200 years from now.” Both statements are, I shall suggest, rather hyperbolic, at least with respect to Dworkin the legal philosopher (I offer no assessment of the importance or long-term impact of his writings on equality). Notwithstanding the majestic sweep and ambition of his jurisprudential corpus, my conclusion—which I’ve come to only gradually over the last decade of reading, writing, talking and teaching about problems in legal philosophy—is that in legal philosophy, Dworkin now deserves to go the way of Skinner in psychology or Derrida in literary theory, that is, the way of figures whose work, at one time, was a stimulus to new research, but who, in the end, led—or, in Dworkin’s case, tried to lead—their field down a deeply wrong-headed path. The only good news in the story about Dworkin’s impact on law and philosophy is that most of the field declined to follow the Dworkinian path—something, interestingly, that those not working in legal philosophy generally do not know. 
Given the limited amount of time I have today—not to mention the amount of alcohol my audience has already consumed—I’m going to support this polemical thesis with just two kinds of considerations. First, in most of the areas that have made law and philosophy an intellectually vibrant area in recent decades, Dworkin’s work has been largely irrelevant. Second, in the areas where Dworkin has had an impact—namely, the development of his own theory of law and adjudication—his views are, I am afraid, implausible, badly argued for, and largely without philosophical merit. The first point shall be easier to establish this evening than the second, needless to say. I take them up in turn. 
Let us begin with a short—and not, I think, especially contentious—list of the major developments in the field of law and philosophy over the past generation: 
First, there is the development well-represented by this inaugural conference, namely, the expansion of criminal law theory beyond the traditional questions about the justification of punishment and the “limits” of the criminal law (that is, what behavior is properly criminalized?) to an intense focus on the conceptual logic and moral underpinnings of criminal law doctrines: the nature of intentions and acts, the distinction between justification and excuse, the logic of the particular excuses (duress, insanity, and so on), as well as the nature of attempts, omissions, and specific crimes like rape. In the work of theorists such as Larry Alexander, Mitchell Berman, George Fletcher, John Gardner, Kent Greenawalt, Michael Moore, Stephen Morse, and Paul Robinson the substance of the criminal law itself has been subjected to unparalleled theoretical and philosophical probing. At the same time, even the older questions about punishment and the moral limits of the criminal law have received important new treatments by many of these same authors--as well as by, most importantly, Joel Feinberg, but also by John Deigh, David Dolinko, Antony Duff, Jean Hampton, Douglas Husak, Nicola Lacey, Andrew von Hirsch, and many others. 
Second, the growth of serious philosophical work on the conceptual and moral foundations of private law over the past two decades has been extraordinary, and has perhaps been most responsible, along with criminal law theory, for bringing philosophy in to the core of the law school curriculum. We see this development in the work of philosophers and philosophically-minded legal scholars like Jules Coleman, Richard Craswell, Charles Fried, Heidi Hurd, Stephen Munzer, Stephen Perry, Arthur Ripstein, T.M. Scanlon, Jane Stapleton, Jeremy Waldron, Richard Wright, and Benjamin Zipursky, to name only a few of the most prominent contributors to this literature. 
Third, the fundamental, but most abstract, philosophical questions about law—the kinds of questions at the core of the work of Hans Kelsen and H.L.A. Hart, the two dominant figures in twentieth-century legal philosophy—have benefitted from the systematic analysis and refinement of central concepts that were previously under-theorized, concepts like “authority,” “reasons,” “rules,” and “conventions.” In the hands of theorists such as John Gardner, Leslie Green, Gerald Postema, Joseph Raz, Frederick Schauer, and Scott Shapiro, these concepts have taken center stage in jurisprudential debate in recent decades. 
Fourth, over the last quarter-century, we have seen a revival of philosophically substantial versions of natural law theory, versions that can stand apart from the theological premises that have rendered much of the historical tradition irrelevant in the post-Enlightenment world. In the work of natural law theorists like David Brink, John Finnis, Michael Moore, and Mark Murphy, important aspects of the tradition of Aquinas find a place at the jurisprudential table. 
Fifth, while moral and political theory was the primary, indeed exclusive, point of reference for jurisprudential writers of the 1960s and 70s, the last quarter-century has seen philosophy of language, metaphysics, and epistemology (three fields in which Rutgers, as it happens, is the world leader) emerge as the primary vehicles for philosophical insight in to the familiar questions about the nature of law and legal reasoning, the relationship between law and morality, and the philosophical foundations of various substantive areas of law (criminal law and evidence, most notably). This development has been manifest in my own work on a variety of topics--from the objectivity of law, to the jurisprudence of American Legal Realism, to the social epistemology of evidence law — and has been equally important in the writings on law and legal philosophy of Timothy Endicott, Alvin Goldman, Larry Laudan, Andrei Marmor, Michael Moore, Dennis Patterson, and Nicos Stavropoulos, among others. 
What can not fail to strike any informed observer of the field is that in none of these five major developments in law-and-philosophy scholarship over the past quarter-century has Dworkin’s work played a significant role. In the two cases where it has played a minor role, it has been as a foil (for example, for natural law theorists or for those writing on objectivity in law or on vagueness) or as a background source of inspiration (for example, in Stavropoulos’s work). To return, then, to the NYU web page hyperbole, we can say this: on the evidence of the developments that have made law and philosophy an exciting, active, and important field over the last twenty-five years, it would reflect only palpable ignorance to describe Dworkin as “the most influential figure.” He is, in fact, almost entirely absent.