Academic

Leiter on Reaism & Moralism, Posner & Dworkin

By Lawrence Solum

Brian Leiter (University of Texas at Austin - School of Law & Department of Philosophy) has posted In Praise of Realism (and Against 'Nonsense' Jurisprudence) on SSRN. Here is the abstract:

Ronald Dworkin describes an approach to how courts should decide cases that he associates with Judge Richard Posner as a Chicago School of anti-theoretical, 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's own theory as an instance of pro-theoretical, 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. 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 Lecture 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.

And from the text:

How are we to adjudicate this dispute between Moralists like Dworkin and Realists like Posner about adjudication? At bottom, as Nietzsche noticed long ago, such fundamental philosophical disputes often seem to reflect differences of temperament and disposition. In this instance, the Moralist finds solace in a vision of how the world works that is morally upright and defensible, while the Realist expresses his impatience with what he deems childish illusion and empty rhetorical posturing. Is there any more to be said, or must we simply declare our allegiance to one temperament or the other?

Notice that the Moralist Dworkin and the Realist Posner need have no dispute about the epistemology of judicial decision, only about its metaphysics. Dworkin can agree that Cardozo in MacPherson takes himself to be crafting a new utility-maximizng rule for changed economic circumstances, and still insist that, in reality, his decision can be understood as an exercise in ?justificatory ascent??that is, that the outcome in MacPherson was, in fact, required by the ?logic? of legal reasoning over all the prior cases surveyed by Levi and cited by Cardozo. To be sure, that was not Cardozo?s view or Levi?s, but they, so Dworkin must contend, are confusing their Realism about the process by which the result was reached, with the metaphysical question whether there exists a right answer as a matter of law.75 The hope that there is a ?justificatory ascent? story to be told about the decision in MacPherson is just the Moralist?s hope that the decision conforms to what Dworkin takes to be a morally attractive picture of adjudication, in which courts always aspire to find rather than make the law, and in which all possibly relevant moral considerations are, themselves, always part of the fabric of the law that is binding on the judge. It is an uplifting picture and aspiration, but is it not, says the Realist, complete obscurantist nonsense, denying the cogency of the settled law prior to MacPherson, as well as Cardozo?s genius in his quasi-legislative role as law reformer transforming antiquated rules of liability in response to the demands of a new economy?

Highly recommended.

Full post as published by Legal Theory Blog on April 11, 2008 (boomark / email).