Dworkin and Critical Legal Studies
.
Law’s Empire pp. 271-75
Perhaps even…partial success is unavailable; perhaps every
interpretation he considers is inconsistent with the bulk of the material
supplied to him. In that case he must abandon the enterprise, for the
consequence of taking the interpretive attitude toward the text in
question is then a piece of internal skepticism: that nothing can count as
continuing the novel rather than beginning anew.” 230-1
The chain novel analogy
It’s easy to see how in some cases the
chain novel might prove impossible to
continue with integrity. Just imagine
that earlier writers introduced too much
weirdness for a coherent story to be
possible.
Could something similar happen in law?
What factors constrain sharp breaks in
the chain of law?
Do serious legal contradictions
get addressed in practical ways?
They are likely to lead to litigation or legislation
that will diminish the conflict.
Dworkin says as much: “Contradiction between
two areas of law so closely related [as two
parts of contract law] would almost certainly
also be eroded by the practices of precedent
and academic criticism and restatement.”
Reply to Waldron in Hershowitz, ed.
Exploring Law’s Empire, 302
Stability in law and legal interpretation
Stability is promoted by:
• Shared paradigms. “Any…judge who denied that the
traffic code was part of the law would be replaced,
and this fact discourages radical interpretations.” 88
• Precedent—“which no judge’s interpretation can
wholly ignore.” 88
• The social nature of legal practice. “Judges think
about law…within society, not apart from it; the
general intellectual environment, as well as the
common language…exercises practical constraints
on idiosyncrasy.” 88
• Shared views about which texts are relevant. 91
• Shared views about the legal furniture which is in
place.
What about stability in legislation?
The critical legal studies movement
“Although the intellectual origins of the Critical
Legal Studies (CLS) can be generally traced all the
way back to American Legal Realism, as a distinct
scholarly movement the CLS fully emerged only by
the late 1970s. Many first-wave CLS scholars
[were] profoundly influenced by the twin
experiences of the radical civil rights movement
and the anti-war movements of the late 1960s.
What started off as a critical stance towards
American domestic politics eventually translated
into a critical stance towards the dominant legal
ideology of the modern Western society…. [T]he
"crits" sought to demystify the numerous myths at
the heart of the mainstream legal practice.”
Wikipedia: Critical Legal Studies
Dworkin on “What is “Critical
Legal Studies”?
“Critical legal studies resembles the older
movement of American legal realism….”
“At its best and most promising, however, it
escapes the limits of legal realism by reaching
for the global and threatening form of internal
skepticism…. It argues that our legal culture,
far from having any shape amenable to a
uniform and coherent justification of principle,
can only be grasped through the infertile
metric of contradiction.” LE 272
Dworkin on how the Crits would
interpret McLoughlin
In McLoughlin CLS would tell a story of conflicting
principles respecting individual loss in accidents: “of
two deeply antagonistic ideologies at war within the
law, one drawn, perhaps, from communitarian
impulses of altrusim and mutual concern and the other
from the contradictory ideas of egoism, selfsufficiency, and judgmental moralism.” LE 272
CLS would say that “Hercules must fail in imposing a
coherent structure on law’s empire as a whole.” LE
273 [Would CLS agree to use the Hercules idea?]
Dworkin’s view of the central
claim of CLS
According to the crits, “Hercules must fail in
imposing a coherent structure on law’s
empire as a whole.” The reason is that our
law contains “deeply antagonistic ideologies
at war….” 272
CLS “argues that liberalism, as a philosophical
system combining metaphysical and ethical
ideas, is profoundly self-contradictory and
that the contradictions of liberalism therefore
ensure the chaos and contradiction of any
available interpretation of our law.” 274
Duncan Kennedy on contradiction
“Kennedy writes that the opposing ethical
conceptions which inform legal doctrine ‘reflect a
deeper level of contradiction. At this deeper level,
we are divided, among ourselves and also within
ourselves, between irreconcilable visions of
humanity and society, and between radically
different aspirations for our common future.”
Andrew Altman, “Legal Realism, Critical Legal
Studies, and Dworkin” (1986) 217
Roberto Unger on internal conflict
“…it would be strange if the results of a coherent,
richly developed normative theory were to
coincide with a major portion of any extended
branch of law. The many conflicts of interest and
vision that lawmaking involves, fought out by
countless minds and wills working at cross
purposes, would have to be the vehicle of an
immanent moral rationality whose message could
be articulated by a single cohesive theory. This
daring and implausible sanctification of the actual
is in fact undertaken by the dominant legal
theories.” AA 222
Legal realism and indeterminacy
Judges have “tremendous leeway in being able to
redefine the holding and the dictum in the
precedential cases. This leeway enabled judges, in
effect, to rewrite the rules of law on which earlier
cases had been decided. The upshot was that in
almost any case which reached the stage of
litigation, a judge could find opinions which read
relevant precedents as stating one legal rule and
other opinions which read the precedents as stating
a contrary rule.” AA 209
Altman on Hercules
“If the rule of law is to be a guiding ideal
for humans, and not just gods, then the
problem of legal indeterminacy must be
resolvable from a human point of view.”
AA 220
Jeremy Waldron
“Did Dworkin Ever Answer the Crits?”
“My aim in this paper is to explore the extent to which
Professor Dworkin is put to a hard choice between the
agile and discerning constructivism he needs to
respond to CLS, on the one had, and the integrity
thesis…which he invokes to justify the claim that
making coherent sense of the existing legal materials,
foreground and background, is something we are
morally required to do. I think Dworkin really is
confronted with a dilemma here….”
Waldron 156
Are Dworkin and the crits trying to
answer the same question?
CLS and Dworkin have “a common interest in
what I would like to call the ‘background
elements’ of a legal system—the principles
and policies that lie in back of the rules and
texts that positivists emphasize.” Waldron 155
Maybe not. Perhaps the crits are interested in
broad underlying ideologies and Dworkin in
specific principles of “fairness, justice, and
procedural due process.”
Waldron on possible responses:
competition versus contradiction
“Dworkin’s second response is to argue that this sort
of CLS skepticism neglects an important
philosophical distinctions between competing
principles (such as autonomy and mutual
concern)…, and contradictory principles (such as
equality and inequality) which cannot possibly be
combined in one coherent conception.” W 167
Crits may, of course, be skeptical that humans can
deal adequately with the balancing of competing
principles that Dworkin’s view requires. See W
168
The contradiction/competition distinction
Hercules “constructs two principles: that people should not be
held responsible for causing injury they could not reasonably
foresee and that people should not be put at disadvantage, in
the level of protection the law gives them, in virtue of physical
disabilities beyond their control. He has no difficulty
recognizing both at work in the law of tort and more generally,
and no difficulty in accepting both at the level of abstract
principle. These principles are sometimes competitive, but they
are not contradictory. He asks whether past decisions in cases
in which they do conflict have resolved them coherently.
Perhaps they have, though whatever account he accepts of that
resolution will probably require him to treat some past
decisions…as mistakes.” 443-4
Waldron on possible responses: You
don’t know if it’s worth trying until you try
For the search for unifying principles to be worth trying “it must not
be out of the question that our argument or our principles fit a
significant portion of the legal materials.”
“This is where Dworkin should take his stand against the Crits.
He should say (and he does say): it is not clear up front that
attempts to argue in the mode of law-as-integrity are doomed to
failure. If it were clear, we should have no reason to resist the
siren charms of pragmatism: forget the existing law; ask instead
what’s best for the future; and take one’s chances on the
integrity issue. But sometimes legal argument looks promising,
and when it does were are obliged to make the attempt (and
the theory of integrity explains why).” W 181
Dworkin’s criticisms of CLS
The “skeptical interpretative claim” that CLS makes “is
powerful and germane, however, only if it begins where
Hercules begins: it must claim to have looked for a less
skeptical interpretation and failed….The internal skeptic
must show that the flawed and contradictory account is the
only one available.” 273-4
“Arguments…about the incoherence of liberalism…have been
spectacular and even embarrassing failures. They begin
and end in a defective account of what liberalism is, an
account supported by no plausible reading of the
philosophers they count as liberals.” 274
Further, CLS writers ignore “the distinction we have just found
crucial to any internally skeptical argument, the distinction
between competition and contradiction in principles.
The contemporary focus helps
“A contemporary Congress might disown the principles
that inspired Social Security in the New Deal.”
“No contradiction between what the law permits or
requires in different historical stages of a community’s
culture can pose any difficulty for a contemporary
judge seeking integrity within contemporary law. So
Waldron must suppose that the Crits have established
more than a historical claim: that they have shown
contradiction in the American community’s
contemporary legal practice. But Waldron offers no
examples at all of the conflicts he supposes endemic
in that practice.” --Reply to Waldron in Hershowitz, ed.
Exploring Law’s Empire, 303, 299.
Dworkin’s final reply to the crits
“Their work is useful to Hercules, and he would neglect it at his
peril, because it reminds him that nothing in the way his law
was produced guarantees his success in finding a coherent
interpretation of it it.”
“But neither does history guarantee his failure, because his
ambitions are interpretive in the sense appropriate to the
philosophical foundations of law as integrity. He tries to impose
order over doctrine, not to discover order in the forces that
created it. He struggles toward a set of principles he can offer
to integrity, a scheme for transforming the varied links in the
chain of law into a vision of government now speaking with one
voice, even if this is very different from the voices of leaders
past.” 273
“An imaginative interpretation can be constructed on morally
complicated, even ambiguous terrain.” 228
Perhaps Hercules can pull off such a constructive reinterpretation, but can ordinary judges?
Is legitimacy undermined if judges can
only pursue integrity in a limited way?
In answering this we should focus on real human
judges, not Hercules.
Perhaps it is enough to confer legitimacy if judges
and other participants are seriously trying to
achieve integrity. Through their efforts we attempt
to be a community of principle, and enough
success can be achieved to make those efforts
meaningful.
Perhaps the greatest integrity is achieved within the
various legal compartments.