Introduction
In many ways, Duncan Kennedy and Ronald Dworkin represent two opposite poles in American legal theory at the end of the last century. Their opposition has many different faces and phases: Ronald Dworkin was taken to be a champion of a theory of rights and the title of his paper—which became the title of his book—“Taking Rights Seriously”Footnote 1, has come to epitomize an attitude towards the issue of rights; even the format of the title has been borrowed widely by other writers.Footnote 2 Dworkin is also associated with a certain theory of interpretation which holds that even in hard cases, the judges have limited discretion at most,Footnote 3 while on other occasions he seemed—at the very least—to be advocating that we have a right answer to every legal question we might reasonably encounter.Footnote 4 At other times, Dworkin appears almost to be is claiming that there is truth and objectivity in legal reasoningFootnote 5, and that we can identify and differentiate between better and worse interpretations to the point of reaching the right interpretation to the question at hand.Footnote 6 In many ways, Dworkin’s work on interpretation is a reconstructive projectFootnote 7, seeking to rebuild after the deadly skeptical assault by legal realists in America; some might even call it a normative idealist project that seeks to view law in its own best light.Footnote 8 Furthermore, Dworkin understands law as a wholeFootnote 9, and develops what he calls “the integrity of law”Footnote 10, as if law was speaking to us in one unified voice. Dworkin believes in the possibility of drawing a distinction between what is law and what lies outside law. He does this by distinguishing between principles, which are inherent to the law and constitute part of it and which are the basis of rights and aims that society can pursue as a whole in the form of ‘policy’. Thus, while arguments over ‘principles’ lie within the law and are legitimate arguments to deploy in court, ‘policy’ issues do not belong to the empire of law: they are external to it and belong to what we may call the domain of politics.Footnote 11 In general, Dworkin holds what might appear a non-tragic image of values. He holds that if we think hard and deep enough, we can come to a certain settlement between competing values, which is mandated, required and possible in many ways. Freedom and justice may conflict, and we may experience a sense of loss by preferring one over the other, but if we get it ‘right’ then the conflict will more apparent than real, and nobody is, in fact, wronged. This is true within the legal domain, though not limited to it, but is also true to morality at large.Footnote 12 When Dworkin wants to summarize his take on law and its role he only uses strongly affirmative terms: law’s attitude is constructive: it aims, in the interpretive spirit, to lay principle over practice to show the best route to a better future keeping the right faith with the past. It is, finally, a fraternal attitude”Footnote 13.
It might seem that Kennedy disagrees with Dworkin in every conceivable respect. Specifically, Kennedy appears to depart from Dworkin on each of the following: on the nature of law and legal reasoning, on the role of the rights discourse, on the relation of law to what is outside law (law and politics/ideology). The two scholars thus seem differ regarding the overall role of law in life and society.
Kennedy would also appear to be highly skeptical of any theory that argues for the objectivity of law and legal reasoning or entertains the possibility of reaching the right answer to a given question. Instead, he would insist on the open nature and manipulability of legal materialsFootnote 14, or what in the literature has been called “radical indeterminacy”Footnote 15. While Dworkin might think in terms of the objective truth that one discovers in the legal materials—however Herculean and complex the search may be—Kennedy thinks that rights reasoning is ideological and instrumental,16and what appears as a discovery in the Dworkinian model appears as almost an invention by Kennedy’s lightsFootnote 17. While Dworkin, as seen above, thinks of law as a whole, as integral and speaking in one coherent voice, Kennedy thinks of the law as a hodge-podge, an endless patchwork of incoherent materials,Footnote 18 full of conflicts and internal contradictions that no coherence can hide or overcome.Footnote 19
In addition to their disagreement regarding the nature of legal reasoning and interpretation, they also differ on the role of rights discourse, of which Kennedy is very critical and skeptical.Footnote 20 They also seem to differ on the nature of the separation between law and politics, where Kennedy would want to insist on the political/ideological nature of adjudication.Footnote 21 While Dworkin thinks of the lofty ideals of law, Kennedy thinks of law mainly as “an instrument of apology—an attempt to mystify both the dominators and the dominated”;Footnote 22 so law is rather an attempt to put a smooth face to a harsh, messy, and ugly reality. Additionally, while Dworkin embraces a vision that champions the role of reason and its ability to adjudicate between conflicting values, and as such represents a straightforward Enlightenment tradition, Kennedy embraces an opposing thesis of the “death of reason” narrative, a tradition spanning from Kierkegaard to Weber.Footnote 23
If this the case, what do the two have in common?
This, in truth, is the aim of this paper: to put the two legal theorists alongside each other, rather than in opposition. This does not mean that I want to eliminate the differences; far from it. But I do wish to offer a few interpretations that would destabilize this image of unrelenting opposition. One way to do this is through a closer reading aimed at softening what appear to be rigid, harshly opposing positions held by each, and thus to show that the gap between their positions is not wide as one might imagine. For example: Kennedy is not appealing to a degree of indeterminacy that is as absolute as might appear and Dworkin is not advocating an apparently radical image of determinacy. This would be one strategy. Another strategy would be to look for common themes, presuppositions, images of law, and sensibilities that both share either explicitly or implicitly. While making the comparison in this paper, I want to focus exactly on the arguments that are attributed to them but they themselves deny they are making.
It is probably more appropriate to begin with the second strategy, showing the common themes, and then to move on to what distinguishes them, showing the gap but narrowing it at the same time. In the last section of this paper I want to go back to articulate what the real differences between Kennedy and Dworkin are, after I have “refined” their positions. In doing so, I will examine the value of this exercise and ask what it says about the nature of legal theory today: legal theory after Legal Realism and after Critique.
In this regard, the paper could be read as part of an attempt to think the nature and status of contemporary legal theory.Footnote 24 Legal theory today seems to be in search of direction; Samuel Moyn has characterized the status of legal theory today as “legal theory among the ruins”Footnote 25 where “there is no successful Zeitgeist now”,Footnote 26 while others have noted that legal theory turned out to be “writ small”Footnote 27 avoiding generalizations or abstractions. Moyn has an explanation for this situation: “Legal theory is in ruins partly because, in its leftist sector, its partisans concurred as infighters in their project to unsettle, but not as architects in their plans to build anew.”Footnote 28 This paper could be read as a prelude to a rethinking of current legal theory today, aiming to map where we have left before we move on to any exercise in reconstruction.
1. Common themes and sensibilities:
1.1 The Thickness of Law—Or the politico-moral Stakes of Law
This common theme will become clearer when we juxtapose Kennedy and Dworkin with other thinkers associated with formalism. Clearly, formalism could be considered in many different ways and in many formsFootnote 29, but here I want to focus on formalism as that theory of law which aims to draw a sharp distinction between rules and the reasons for the rules: the rules being internal to law and the reasons external to it. The reasons may well be important as historical facts that can explain and justify the rules, but once the rules are in place, they are all we have: the rules become in themselves reasons to enforce themselves, and we need not resort to the reasons that lie behind them. This is a thin image of law that understands the legal domain as a bundle of rules, and sees a threat in treating the rules as being dependent or parasitic on external reasons.Footnote 30 Now, this image could be associated with classical formalists, but it could also be ascribed—paradoxically—to legal realists, because the realists turn their attention to other disciplines, outside the law, when they think that rules run out and can never dictate a solution to the legal question at hand.Footnote 31 But they reach too quickly for what they see as an extra-legal domain to “supplement” the legal, and bring the case to closure. In this sense, there might be more affinity between Legal Realists and H.L.A. Hart, as both “jump” to extra-legal materials to supplement the law whenever the rules run out. There is obviously a vast difference between the realists and Hart, but the difference lies in the fact that a realist thinks that rules run out very often, whereas Hart thinks that most cases are solved by the rules, because they lie at the core, not in the penumbra of the rule.Footnote 32
Against these kinds of thinner takes on law, Kennedy and Dworkin think of law as a thick domain: by this I mean that law and legal reasoning, includes, allows and incorporates moral and political principles and ideas and ideals. Both Kennedy and Dworkin agree there is more to law than just a bundle of rules. Jurisprudence can’t only be a matter of conceptual analysis; by definition it has a normative dimension to it.Footnote 33
In this regard, one can see Dworkin as precursor of Kennedy, bizarre though it may seem. Dworkin’s extension of the law to include moral and political principles was made early on, already in his early papers on the model of Rules in the late 1960s. Equally, Kennedy’s insistence of the political stakes in law could be viewed as a radicalization not only of the Legal Realist tradition, but as a radicalization of Dworkin himself.Footnote 34 I say it is a radicalization of Dworkin for the obvious reason that Kennedy never stops at the level of principles and he thinks, as we know, that law is penetrated all the way up by policy, politics and ideology.Footnote 35 In a figurative way, we can argue that if Dworkin has managed to question the line between rules and principles by viewing the issues of moral/political principles as being part of law. This bears some affinity with Kennedy’s questioning and blurs the line that Dworkin struggles to maintain: the line between principle and policy, between what is inside the law and what lies outside the law’s empire.Footnote 36
There is another paradoxical way in which Kennedy radicalizes Dworkin: By questioning the line separating law and ‘non-law’ (ideology, politics, religion) Kennedy extends and expands law’s empire even more than Dworkin. For if we blur the dividing line between law and politics and question its sharpness and its impenetrability, the penetration can work both ways: not only can what is ‘outside’ the law penetrate law, but rather, law can penetrate what seems to be outside law; while Kennedy thinks that it is politics and ideology all the way down, it is law all the way up: Politics shape law, but politics are shaped by law as well.Footnote 37
1.2 The Always-already Approach
When Dworkin discusses the role of moral/political principles in Law’s Empire Footnote 38 he gives the example of the case of ElmerFootnote 39 (among other examples that he offers). This is the famous case where Elmer E. Palmer murdered his grandfather, knowing that his grandfather wrote a will, bequeathing him all his property. Dworkin gives this example in order to try to answer a much more profound question related to the question about disagreement in law: what do judges disagree about when they disagree?Footnote 40 Dworkin thinks that answering this question can give us an insight into the nature of law. He argues that when judges disagree about law they do not disagree about a fact, in the same way that we might disagree about the number of cars parked in the parking lot. Rather, disagreements about the law are always disagreements about how the case should be decided, and who has the right to win the case. In this sense, the disagreement is not just about fact, but it has always an aspect of ‘ought’ to it, as if the question of what the law is and how we should decide according to it (as judges) are inseparable questions. But here is the point that Dworkin wants to emphasize: he never tires of arguing that what judges are disagreeing about while debating the case, for and against, are disagreements within the law. It is not the case that the judge goes through two distinct stages and says to himself: “I know that the law does not prohibit the grandson to inherit his grandfather and legally speaking he is entitled, but this is an unacceptable outcome morally, and for that reason he should not be able to inherit”. Dworkin argues that this is neither the way that judges disagree, nor the way they argue; rather, they think and write their decision as if the grandson is not entitled legally to inherit from his grandfather.Footnote 41 Dworkin does not accept the two stages picture, in which the judge first reaches a legal answer allowing the grandson to inherit, and only then uses his moral principles to change this initial result. There are no separate stages in the legal reasoning, and morality is not being enforced from without on the legal materials: the moral principles are there from the first stage of legal reasoning, and if they exercise any constraints it is a constraint from within, not from without, for principles are not external to the practice of legal reasoning. Legal reasoning can’t make a first move without resorting to principles.
I think that this sense of the “always already”Footnote 42 is very apparent in Kennedy’s writings. This is not to argue that Dworkin had influenced Kennedy in this mode of reasoning, and in fact it can be the opposite, or may be both had internalized Heidegger and Gadamar’s take on interpretation. But Kennedy never tires of arguing in similar mode when it comes to ideology/politics: Kennedy’s argument in this regard is that ideology/politics is internal to the practice of legal reasoning. Of course, Kennedy never argues that ideology determines the result of the process of legal reasoning, but on the other hand it is not external to it. As he put it only recently, “political ideology is no more an outside, external determinant, than it’s an excluded irrelevance.”Footnote 43 When judges sit down to write their decisions there is no reason whatsoever to think that they do not have an interest—ideological, political, sympathy, religious or other interest—in the outcome of the case. All of these are ‘always already’ present in the process, though Kennedy never argues that they ‘determine’ the result of the case. I think that this ‘thrownness’ in respect of the world as a totality is a sensibility that both thinkers share.
1.3 Theorist Across the Board
Here I want to offer an argument of three layers, which, when all put together, establish the image of Dworkin and Kennedy as theorists across the board.
The first layer relates to their theory of interpretation, where both attenuate the difference between hard cases and easy cases, thus holding one theory of interpretation (Unitarian Theory). Second, both are legal theorists that have some insights about law that they apply to spheres outside law, morality and society (Relational Theory). The third layer relates to their shared belief that their position within law and outside law (determinacy/indeterminacy accordingly) is crucial for the question of the legitimacy of the legal and social order (Legitimacy Theory).
The first point that they share—is the way that both Dworkin and Kennedy view law and legal interpretation as totality.Footnote 44 By this I mean that both have a theory of interpretation for hard cases and easy cases alike: in fact they do not make a clear distinction between what might be called “easy cases” and another theory for “hard cases”, because what is “easy” and what is “hard” is not something given beforehand at the surface of the text, rather something that emerges at the end of a process of struggling with the legal materials. In this regard they both reject what might be thought of as the two-stage theory of interpretation: “first we look at the text, if it is clear then there is no need for interpretation, interpretation enters the stage only if the text is not clear”.Footnote 45 I choose to call this a Unified Theory of interpretation, which reflects a certain manner and disposition in approaching legal materials as a totality. Furthermore, one can view Dworkin’s and Kennedy’s writings over several decades as aiming toward one major argument (or family of arguments). When put together, each body of writing establishes a world view. So, while they occupy opposing poles in their analysis and supply opposing answers, they are nevertheless in many ways mirror images of each other. They give different answers to similar questions.
As to the second layer of Relation Theory: while both are first and foremost legal theorists, they are not only legal theorists. I do not mean merely that they deal with issues other than those of legal theory; there are many legal theorists who deal with issues proper to philosophy, economics, linguistics, etc. What matters is that their world view haunts their legal scholarship, and the same sensibility that guides their legal scholarship guides their social and political philosophy as well. Moreover, both start first as legal theorists, tinkering with questions internal to legal interpretation (in the case of Kennedy, doctrinal questions of tort and contract law), but end up with theories that extend beyond the realm of law to social and political theory. To put it more metaphorically, their insights regarding the nature of law and legal interpretation emigrate from law, all the way to other fields of social and political theory (coherence and non-conflict in the case of Dworkin, and incoherence and conflict in the case of Kennedy). This suggests a different movement to the usual one,—in which philosophy, economics and political theory instruct and guide legal analysis—towards a new dynamic whereby legal theory has something to offer to other disciplines: here legal theory is not on the receptive, but on the disseminating side. This is clearly the case with Kennedy, and less so with Dworkin. Yet, if we follow Dworkin’s early writings on truth and objectivity in law, as opposed to his later writings about conflict between values, we will be able to discern how the model of Hercules has been generalized. Hercules starts as a judge, but he becomes the paradigm of the philosopher in Dworkin’s later writing.Footnote 46 When Dworkin argues that the idea that values conflict is an “illusion”, he is not making this argument from a position internal to law, but rather from within political philosophy in general.
Kennedy is far more aware of this movement in his work. First, he spends time working on legal materials. He shows the internal incoherence and conflict within legal materials, showing what he calls the false necessity and appearance of necessity of the legal materials, but he then proceeds to look at the larger world of society, politics and ideology and deploys the same tools he acquired within law in order to be able to say something about the shape of ideology, politics and society. Kennedy is clearly also inspired in his project by non-lawyers, thinkers like Feuerbach, Marx and Sartre,Footnote 47 and he clearly appropriates them to gain insights into legal analysis. But Kennedy develops and ‘exports’ these insights, after they had been sharpened, to social theory itself, and offers critiques of these social theorists and others. Thus, the critique of indeterminacy advances to social and political theory.Footnote 48 By contrast, early Dworkin (of Hard Cases) thinks of the right answer as something emerging from inside law and legal principles, but the late Dworkin of Law’s Empire, thinks that the right answer comes rather from ideas not limited only to law, but inclusive of political principles of community in general and ideas of integrity that personify law, speak in univocal voice and establish community and fraternity.Footnote 49
This creates a picture in which both Kennedy and Dworkin maintain similar focal points and pose similar questions regarding the nature of law, and with regard to philosophy, politics and society. The first of these, which we have already alluded to, is the relation of law to these other fields.Footnote 50 Is there a necessary relation between our views of the one in relation to the other? Is there a necessary relation between the determinacy/objectivity of law and determinacy/objectivity of moral values in general?
On the first question the answer of both Dworkin and Kennedy is in the positive. There is a relation between objectivity/non-objectivity inside the law and outside it—in morality/politics.Footnote 51 This can be clearly distinguished from a positivist approach that would make a disjunction between law and morality and would not render the objectivity of the one being dependent on the other.Footnote 52
The third and last point (Legitimacy Theory) is related to the consequences of the different and opposing answers that both theorists give to the questions of determinacy/objectivity of law and morals (determinacy and objectivity clearly are not one). Both of them do think that this determinacy is rather crucial for law’s enterprise and its legitimacy: the lack of objective determinate answers threatens the legitimacy of law.Footnote 53 The difference is that Dworkin thinks we can have a right answer while Kennedy thinks we can’t, but they do agree on the importance of this relation between legitimacy and determinacy. Their point of view differs from other theorists who do not put much weight on determinacy in the first place. H.L.A. HartFootnote 54, Coleman and LeiterFootnote 55, Ernest WeinribFootnote 56, Ken KressFootnote 57 are just few of the many that could be mentioned. These writers concede the existence of lack of determinacy, but do not think that this threatens law’s legitimacy, or indeed poses a threat to the liberal project of legality.
These three aspects put together (unitarian theory, relational theory, centrality of determinacy), establishes them as two opposing poles and casts the debate descriptively and normatively in an image of either/or.
2. Dworkin
2.1 On Objectivity, its Meaning and its Limits
A reader of Dworkin can get the impression that he represents everything that Kennedy is skeptical about. This is especially true regarding Dworkin’s writings on the objectivity of interpretation and the right answer thesis. In the following section, I will try to read Dworkin’s thesis in this light, but in a way that can prepare the ground for my discussion in the next chapter where I compare his take with that of Kennedy.
That hypothetical reader of Dworkin can indeed get the impression that Dworkin is proposing a theory that there is a right answer for legal questions and that the role of judges is to discover that answer. Already in his first book, Taking Rights Seriously, Dworkin states at the introduction the following:
The essays emphasize that there are hard cases, both in politics and in law… it may be objected that in such circumstances it is nonsense to suppose that any rights exist at all. This objection presupposes a general philosophical theory according to which no proposition can be true unless some procedure exists, at least in principle, for demonstrating its truth…Chapter 13 argues that we have no reason to accept that general philosophical position and good reason to reject it, particularly insofar as it applies to arguments about rights.Footnote 58
In fact, when we examine in Chapter 13, which deals with the question of whether right can be controversial, we see that Dworkin makes the claim that: “I insist that the process, even in hard cases, can sensibly be said to be aimed at discovering, rather than inventing, the rights of the parties concerned [emphasis added].”Footnote 59 A few years later, Dworkin articulated what appears to be a similar view, if formulated a bit differently:
I now wish to defend the unpopular view that in the circumstances just described the question of Tom’s contract may well have a right answer against certain arguments on which its opponents knowingly or unknowingly rely [emphasis added].Footnote 60
But what does Dworkin mean by this?
2.2 Right Answer Thesis
2.2.1 As Fact or as Likelihood
However rarely, Dworkin still writes sometimes as if his thesis on the Right Answer is a kind of a report on the state of legal materials themselves. Dworkin thinks that a judge can reach a “right” answer in most cases. That is far from saying that this task is easy, and in fact it needs a judge who is no less than Hercules. Dworkin entertains the idea that at times there is a tie—a situation of equal arguments both ways—“but” he adds:
[…] In a modern, developed, and complex system, the antecedent likelihood of that kind of tie is very small. The tie result is possible in any system, but it will be so rare as to be exotic in these…it will be rare, I think, that many lawyers will agree that neither provides a better fit than the other [emphasis added].Footnote 61
Soon after, in a later paper, Dworkin tries to put his argument within limits—claiming that he did not mean it to be a global argument about the legal system in general, but about those he is acquainted with:
I believe that such cases, if they exist at all, must be extremely rare in the United States and Great Britain [emphasis added].Footnote 62
The reason that Dworkin holds such a hopeful position can be traced to his thick vision of law that includes principles that can always supplement rules, thus leaving no place for gaps; this position thus stems from his holism, and to his view of law as integrity. But whatever the reasons for the ‘rareness’ of such cases are, this portrayal of ‘rareness’ reminds us of H.L.A. Hart’s take on the issue without adding much to it. Let us look for another meaning of the right answer thesis.
2.2.2 Right Answer as Deduction:
One way to understand Dworkin’s argument would be view it as a deduction in the Kantian sense (similar to Hans Kelsen deduction of the Grundnorm).Footnote 63 By this I mean the idea that having a right answer is not something out there that we are able to show or prove, but rather something whose existence we can deduce. How? If we watch the way judges write their decisions, the way they argue, the way they justify their positions, we can learn that when they sit down to write their decisions they assume the existence of a right answer lying within the legal materials. We need this assumption in order to make sense of the practice of legal argumentation, and without it we will be committing a rational error. Dworkin thinks that this is the way we argue about law and about morality at large. When people disagree about moral issues they continue to defend their position as being the “right” position, regardless of the fact that there is no brute fact out there that corresponds to their position. He says:
People who make these judgments do not believe any of this nonsense about brute facts (I doubt there is anything there to believe), and yet they continue to make and argue about their interpretive claims in a critical and judgmental way, supposing that some claims are better than others, that some are right and others wrong.Footnote 64
Dworkin makes a similar argument regarding the nature of disagreement between judges. The disagreement is genuine, in good faith, and robust at the same time. The judges do not write their decisions in a way that says: ‘I thought about it and I prefer this position, and I am sure that your position is equally right, but I simply prefer this one’. Judges think that they ‘got it right’; that their position is the right position, and had other judges thought thoroughly about the matter they would have reached the same decision that they had. That is to say, that judges experience their decision as something more than a reporting their mere opinions—as reflecting something more immanent in the legal materials, though not exhausted by the materials themselves, and that their decisions come closest to capturing that essence.Footnote 65
In this sense the Right Answer thesis could be read along the lines of concept/conception distinction that Dworkin develops.Footnote 66 The Right Answer thesis holds that there is a univocal reference that lies behind and beneath disagreements and allows their existence at the first place. If we do not assume the existence of a ‘concept’ that lies beneath our different conceptions of the same concept, and if we do not assume the existence of right answer, then we are merely talking across each other, and not really having a genuine disagreement.Footnote 67
2.2.3 Right Answer as Regulative Idea or Practical Reason
By practical, I mean something along the lines of how Kant uses the term. At times Dworkin seems to be arguing that though we can never be sure whether there might be a right answer, it would be a good idea if we, and the judges as well, assume that there is a right answer. At one point, Dworkin uses the language of duty:
I shall argue that even when no settled rule disposes of the case, one party may nevertheless have a right to win. It remains the judge’s duty, even in hard cases, to discover what the rights of the parties are, not to invent new right retrospectively [emphasis added].Footnote 68
At other times, Dworkin uses the terminology of “responsibility”:
The proposition that there is some “right” answer to that question does not mean that the rules of chess are exhaustive and unambiguous; rather it is a complex statement about the responsibilities of its officials and participants [emphasis added].Footnote 69
Dworkin is very aware that there is no theoretical way to exclude the possibility of a tie, but still he wants to the judges to work harder:
“[…] that instruction does not deny the theoretical possibility of a tie, but it does suppose that, given the complexity of the legal materials at hand, judges will if they think long and hard enough, come to think that one side or the other has, all things considered and marginally, the better of the case.”70
This is not a claim about the ‘existence’ of a right answer as much as an invitation to think of the judging process as one that assumes the fact that there is a right answer. The same holds regarding the view that law is a whole, as something which has integrity. Dworkin again, is aware that “[t]he law may not be a seamless web; but the plaintiff is entitled to ask Hercules to treat it as if it were [emphasis added].”Footnote 71
One way to think of the nature of this argument would be along the lines of Kant’s idea of freedom in the Third AntinomyFootnote 72, or Kant’s idea of progress in historyFootnote 73. To put it briefly and simply: given the fact that there are arguments for and against the existence of freedom, we are not able to prove its existence or to disprove it. This is a kind of skepticism about skepticism itself that can give rise to hope, which implies that freedom is a possibility that cannot be absolutely denied. As such, we can deploy freedom as a regulative idea for practical purposes—as an idea of reason.Footnote 74 I think that Dworkin’s take is similar to this position: given the fact that we are not able to confirm or deny ontologically the existence of a right answer, we have good reasons to behave and act as if there was such a right answer. At one point, he puts this in clearer terms:
There are many reasons (perfectly practical reasons among them) for asking judges to decide hard cases on their best judgment about rights even when that judgment cannot be demonstrated to be true to the satisfaction of all, and may in fact be false.Footnote 75
Among such reasons one can mention at least two. One is that if judges work under such a presumption, there is a good reason to think that they will try hard to reach that decision instead of stopping at the middle of their deliberation, settling for a decision that simply appears to reflect their ideological/political biases. Second: there is good reason to hope that such an assumption is required to establish the legitimacy of state coercion. Either way, it is important to keep in mind that this argument foregrounds the practical consideration. Dworkin reminds us that at the end of the day—from the perspective of the judge—the question has a practical tilt to it—i.e., it focuses on what is to be done—not merely a theoretical one.Footnote 76 Later in his writing, Dworkin emphasizes this aspect of responsibility: at the end of the day, the judge must deliver a decision, and the moral philosopher must take a stand. Any theoretical position is ultimately internal to the substantive internal debate. “There is no philosophical safe harbor in the neighborhood. We must each believe what we responsibly believe. We are all out on some limb, even if it is not the same limb.”Footnote 77 This sentiment for responsibility is something I will discuss in Kennedy’s work.
2.2.4 Right Answer as More Than Opinion-Persistence of Reasons
Many times, and in different forms, Dworkin’s argument for the right answer thesis seems to be that the judge’s decisions are far more than mere preferences or opinions that the judges happen to hold. Dworkin insists on the possibility of making a judgment, of evaluating different arguments and making a judgment as to their relevant weight, and of the possibility of giving reasons for preferring this argument over that argument. Some arguments are superior to others:
I assume that persuasive arguments can be made to distinguish one theory as superior to another. But these arguments must include arguments on issues of normative political theory.Footnote 78
Dworkin goes out of his way to argue against those positions that hold all arguments to be mere opinions with equal weight, and that there is no way to measure that weight. For Dworkin, to argue against slavery is not simply to say “I am against slavery and that is just my opinion”; to Dworkin, this mode of argument is poison:
[…] that these arguments are just their opinions, that there is nothing more to be said, and that if they think that equality, say racial equality, is of a paramount importance, they also have to think that there is nothing objective about that view and that the contrary view has as much claim to be true as theirs. I think that this is a poison.Footnote 79
In many ways, Dworkin wants to keep a clear distinction between ‘mere’ opinion and what he takes to be more than only ‘mere’ opinion, but an opinion supported by reasons. Thus, for him, when I say that slavery is unjust, I do not mean to report only my state of mind, but to observe that everyone has good reasons to oppose slavery, and that I can state and articulate those reasons.Footnote 80
I am not here to evaluate the soundness of Dworkin’s argument—rather than to reconstruct it—but it is clear that much of his argument will hinge on what could be considered as a reason, and whether what is considered by you as a reason, could be thought by me as mere preference or just a whim.Footnote 81
I think, however, that the point that Dworkin wants to stress in this regard has an affinity with the Kantian aesthetic judgment, which is an instance of reflective judgment. We can speak of objectivity even when we are not reporting a state of empirical fact—as in the empirical sciences. Not only that, but we can speak of some meaning of objectivity even when we do not have a determining judgment in the Kantian sense.Footnote 82 Kant thought of moral judgment basically in terms of determinate judgment. Dworkin does not think of morality, or law, in this was—as being fully subject to determining judgment. In fact, Dworkin’s analysis bears traces of both of determinate and reflective judgment and does not view these as mutually exclusive of one another. But his inspiration of determinate judgment draws on Kant treatment of duties of virtue in particular, not duties of right, in which the judgment allows some latitude.Footnote 83 Here, however I want to stress the aspect of universality that lies in reflective judgment as source of inspiration for Dworkin.Footnote 84
Kant thought in two sense of universality: one that emerges from his vision of the work of the categorical imperative that operates according to determining judgment, and the other mode of universality that emerges from the judgment of the beautiful. Kant distinguishes between judgments of the beautiful from those of the merely pleasant. In judgments of the pleasant “[E]veryone is content that his judgment, which he bases upon private feeling and by which he says of an object that it pleases him, should be limited to his own person.”Footnote 85 In judging the pleasant, there is no claim for universality whatsoever. But things are different with the judgment of beauty, where there is a claim for universality. Someone making the judgment that this object is beautiful is not reporting that it pleases him rather “[h]e must believe that he has reason for attributing a similar satisfaction to everyone. He therefore will speak of the beautiful as if beauty was a characteristic of the object and the judgment logical, although it is only aesthetical.” Kant immediately adds that “the judgment of taste, accompanied with the consciousness of separation from all interest, must claim validity for every man.”Footnote 86 This is what Kant calls the Subjective Universal.
It is in this sense, I think that Dworkin wants to claim that there is more to legal Judgment than just mere preference or pleasure. This, however, does not amount to logical necessity, or determining judgment. If someone continues to insist that there is nothing objective or universal in the judgment, it would seem that Dworkin, apart from suggesting further reasons, is not in a position to press his case or to ‘prove’ it.Footnote 87
Dworkin nevertheless seems to have a problem, for while he establishes that moral and legal reasoning is not merely about preferences, as is the case with taste, and while one might still think that reasons go beyond mere preference, this in itself is not good enough to establish the case for a Right Answer thesis. I can have an imperfect duty to support my elderly mother and spend time with her, while also having a duty towards my children to spend time with them as well. I have good valid reasons—moral reasons—that support both sides of the argument, but this does not imply that there is a right answer for this dilemma. Be that as it may, the aim of this sub-section was in fact to show that Dworkin’s right answer thesis is committed to something that is less than the right answer thesis.
2.3 Anti-Foundational Objectivity
Dworkin develops his theory of objectivity and truth in several places. The first is his essay “On Interpretation and Objectivity”Footnote 88; he went on to develop the thesis in the more detailed paper, “Objectivity and Truth: You’d Better Believe it”,Footnote 89 and most recently in a chapter in his book Justice for Hedgehogs.Footnote 90 From an early stage, Dworkin gives up any idea of a general theory of objectivity of morals that pretends to be neutral, and meta-ethical in itself. “I see no point in trying to find some general argument that moral or political or legal or aesthetic or interpretive judgments are objective.”Footnote 91 There is no external objective neutral point from upon which the objectivity of morality can stand or from which it can derived, rather, it is morality and interpretation all the way down. As he puts it: “I have no arguments for the objectivity of interpretative except moral arguments, no arguments for the objectivity of interpretive judgments except interpretive judgments.”Footnote 92 Thus, when people argue that slavery is “objectively” wrong, they are not asserting a second, neutral, meta-ethical level of scientific objectivity—rather, they do so “to distinguish the opinions so qualified from other opinions; they mean to distinguish the opinions so qualified from other opinions that they regard as subjective—just a matter of their tastes.”Footnote 93 It is basically an emphatic assertion, and expresses the fact that my idea of the iniquity of slavery is not just a consequence of people saying it is wrong. It is not simply a matter of convention, rather, it is wrong.
This approach allows Dworkin to establish a position that goes beyond conventionalism in ethics and in law, but without committing himself to a realist view of morality that thinks of moral values as being part of the fabric of the universe.
It is clear by now that the kind of objectivity that Dworkin is alluding to is internal to practice and does not depend on anything external to it. In fact, Dworkin questions the idea of an external skeptic: the philosopher who thinks he can stand outside the practice of the legal argumentation is mistaken and in fact holds an incoherent position.Footnote 94 In some sense, Dworkin launches a critique of positivism reminiscent of the critique that H.L.A. Hart launched against Austin’s theory of law, and he pushes this internalist shift to its ultimate end.Footnote 95 Dworkin wants to insist that his theory works from within the practice and the kind of objectivity he means to advocate is achieved from within this practice, not as observer:
The judge trying a law suit in the position of churchgoer, not the sociologist. He does not mean to state, as a cold fact, simply that most judges believe that they have a duty to follow what the legislator have said; he means that they do in fact have such a duty and he cites that duty, not others’ beliefs, as the justification for his own decision.Footnote 96
For Dworkin, there is no place outside interpretation where one can stand and make a judgment about truth or falsity of the interpretation. In this sense, Dworkin simply denies the coherence and relevance of so-called meta-ethics. It is interpretation all the way down. The external skeptic is de facto an internal skeptic masquerading in externalist garb. Thus, when someone argues that law is law regardless what we think of its morality—say, H.L.A. Hart—then for Dworkin this is an interpretative position itself, and not a position about interpretation. According to Dworkin this is true for morality as much as it is true for law:
I have yet been given no reason to think that any skeptical argument about morality can be other than moral argument, or skeptical argument about law other than legal argument, or skeptical argument about interpretation other than an interpretive argument. I think that the problem of objectivity, as it is usually posed, is a fake because the distinction that might give it meaning, the distinction between substantive arguments within and skeptical arguments about social practices, is itself a fake.Footnote 97
This position is part of Dworkin’s worldview that rejects the two-levels theory when it comes to evaluative-interpretative enterprises like morality, art, or law. Dworkin rejects the idea that we can distinguish between the everyday evaluative conversation and the philosophical conversation about the first conversation.
The meta-ethical position argues that the discussion that you and I have in our daily life belongs to a world of discourse that is separate from the philosophical. We are talking normatively evaluative. We are making value judgments. But philosophers are asking questions whether not within our conversation, but about our conversation… Now in a good deal of writing I tried to oppose that view.Footnote 98
By the time we get to the later Dworkin of Justice for Hedgehogs, he argues that the value of moral philosophy depends more on contributing to responsibility and not to truth, but this statement is so categorical that he is forced to ask: do we need truth?Footnote 99. Dworkin’s answer is very interesting and very telling, because he thinks that abandoning truth will come at a high cost: “Explicitly declaring a lack of interest in truth would pass for skepticism, and that would encourage all the confusion we uncovered in part one. Insisting on truth has more positive virtues as well”.Footnote 100
The picture emerging from this sense of truth in Dworkin is that it is internal to practice, is not foundational, and it is a precept of practical reason rather than a theoretical fact.Footnote 101 And I think that understanding the meaning of truth in Dworkin writings in this manner might attenuate our perception of his opposition to Kennedy.
2.4 Freedom and Constraint in Dworkin’s Project of Interpretation
When read in opposition to H.L.A. Hart, mainly regarding the question of discretion in hard cases, Dworkin appears as an objectivist—as someone who thinks that a judge’s role is to struggle hard to discover the right answer, and that judges have very limited discretion. The persistence of principles, the holistic approach, the chain constraint—all of these can orient the judge and lead him to the ‘right’ decision. This is a charge that has been leveled at Dworkin, and a charge that he went out of his way to refute:
One reader of the original essay (‘How Law is Like Literature’), at least, though that in spite of my many disclaimers, I was committed to a silly metaphysical theory of interpretation, according to which meanings are “just there” in the universe, literary genres are “self-announcing” texts act as “self-executing constraint” on my interpretation and interpretation is therefore the discovery of brute, non-interpretive, and recalcitrant facts. Of course, I never said any of these things… I did say, among other things, that interpreting was different from inventing.Footnote 102
But one can imagine easily also the opposite charge launched against Dworkin: if it is a matter of interpretation, then rules are malleable in the hand of the judge and they can hardly exercise any constraint.Footnote 103 Since Dworkin puts considerable emphasis on the non-explicit nature of law—morality, principles, integrity—the role of the judge seems to be empowered compared to the authority of the legal text. In this sense, the ‘subjective’ aspect of legal interpretation is increased at the expense of the authority of legal rules. This clearly can invite the image of ‘invention’.
In many ways, both images are right and wrong at the same time. It is true that Dworkin’s holistic approach, which puts rules within the overall project of interpretation, and makes them dependent on principles and on moral and political values, does question their independence; this approach opens the way for interrogating the rules themselves, and as such, for threatening the stability and determinacy of these rules, as they are not free-standing but rather form a part of a larger web. There is always more in law than what there is in rules, and rules can never exhaust the legal world. Law has always something unsaid about it, something implicit that is still waiting to be unearthed by the judge.
This could be viewed as a destabilizing image. But for Dworkin this is the opening moment in the process of interpretation, not its end. This first apparent destabilization is ‘followed’ by a more stabilizing image of law. The practice of the judge might destabilize the rules, but at the end the practice is fairly stable within the law. If we view law as system of rules, then it can clearly be destabilizing, but if we view law as a whole—as Dworkin sees it—then there is closure that comes ‘after’ the initial moment of openness. Principles might be a problem, but they are the solution as well.
The organizing theme for Dworkin here is the concept of ‘purpose’. Law is an interpretative project, and judges approach the materials knowing that the law has a purpose. This purpose is separate and distinguished from the intent of legislator, and the subjective intent of the judge himself. By the analogy of law to a certain practice, Dworkin invites us to view law as an enterprise that aims at some purpose which it is the judge’s role to articulate, time and again.Footnote 104
Dworkin, in a sense, blurs the distinction between hard cases and clear or easy cases, for what appears, at first glance, as a clear case might turn out to be something else after we invoke principles, political morality and after the judge Hercules enters the stage. On the other hand, cases which appear to be hard cases might turn out in the end to have a right answer latent within the legal materials, although we may have to dig deep, and treat law as a whole, to uncover them. As he writes: “The distinction between easy and hard cases at law is neither so clear nor so important as this critics assumes […] So easy cases are, for law as integrity, only special cases of hard ones.”Footnote 105
Dworkin’s image of the practice of interpretation is definitely an image of both freedom and constraint at the same time, and he has been open to two kinds of charges: of subjectivism (or manipulation,) and of objectivism. He goes out of his way to defend himself against both.
The ‘subjective’ aspect lies in the fact that rules can never exhaust the legal world, because the legal world is about values. This invites an active role on the part of the judge. As in the case of interpreting a practice—which represents a value and is not exhaustive—“so that the strict rules must be understood or applied or extended or modified or qualified”Footnote 106 Thus, legal interpretation is a purposeful activity on the part of the judge. And as is the case in interpreting a practice, “people now try to impose meaning on the institution—to see it in its best light and then to restructure it in the light of that meaning.”Footnote 107 And as in interpreting a practice, the judge has to move back and forth between the rules representing the practice and those values that stand behind it.Footnote 108 This back-and-forth is a purposeful activity, which aims at something; it is an activity that entails “striving”,Footnote 109 and imposing purpose.Footnote 110 Viewed as such, it would be inappropriate to use the language of discovery anymore, for interpretation is more an interactive enterprise.Footnote 111 This image of Dworkin’s Hercules invited the criticism that Hercules is in fact “playing politics”Footnote 112, as well as the charge of invention.Footnote 113
But as we know, Dworkin’s Hercules, while indeed engaged in creative interpretation, imposing purpose and striving, is still constrained. While the idea of principles does some work in Law’s empire, the distinction between rules and principles is still watered down. Instead, Dworkin deploys a language that emphasizes integrity and coherence, and which includes principles. But now he emphasizes the “overall” structure, law as “whole”.Footnote 114
If the first pole of “imposing purpose” has a centrifugal image, then the idea of law as a whole, the integrity of law supposed to give weight to history and previous decisions of the court, evokes a centripetal image. But these are in fact just that—images; for the purpose of the ‘centrifugal’ as the purpose of the ‘centripetal’ is to find the overall balance of ‘fit and justification’ that gives the right interpretation. In this sense, Dworkin is right to describe his project as one that intends neither to discover nor to invent the answer, for the dichotomy collapses in his system. There is no difference between finding and inventing, as the judge is neither free nor constrained but both at the same time.Footnote 115
Dworkin does not juxtapose objective-external constrains with the subjective desire of the judge. The constraints could be internal to the judge himself. The judge’s convictions, and the way he “experiences” the medium itself could be a constraint on him. In this sense Dworkin’s understanding of the process of judgment is very much phenomenological.Footnote 116 It is so more than he admits.
The answer that the judge’s reach does not guarantee anything and does not necessarily reflect the right balancing, all things considered. These answers reflect only what the judge has reached according to his best judgment at that moment:
We must not suppose that his answers to the various questions he encounters define law as integrity as a general conception of law. They are the answers I now think best. But law as integrity consists in an approach, in questions rather than answers, and other lawyers and judges who accept it would give different answers from his to the questions it asks. [emphasis added]Footnote 117
It is interesting to notice that Dworkin thinks of law as integrity, and the right answer thesis mainly as an approach, and mainly as consisting in “questions rather than answers [emphasis added]”. We can now ask: Is Dworkin’s theory mainly a ‘discourse on method’? Can we retitle his major piece, “Is There Really No Right Answer?” by replacing it with “Is There Really No Right Question?”.
Perhaps this is the moment to move to Duncan Kennedy, to see what his position is, and in what sense he differs from Dworkin.
3. Kennedy
Kennedy is one of the major founders of the Critical Legal Studies (CLS) movement. The kind of intellectual influences on his work seems to be different from those that influenced Dworkin. Kennedy sees himself in continuity with the Legal Realism tradition within law, as well as with an antinomian decisionist tradition that takes inspiration from the writings of Kierkegaard, Marx, Nietzsche, Weber, Saussure, Schmitt, Sartre and the Frankfurt School. However, he is not a fan of ‘schools’, and his work is, intentionally, very eclectic.Footnote 118 Many of those that influenced his writings were also the targets of his harsh critique.
As I mentioned in the beginning of this paper, Kennedy seems to symbolize the exact opposite of what Dworkin stands for in legal theory today. In the following section, however, I want to suggest a close reading of Kennedy’s work, and place some emphasis on some of the qualifications he offers: when and where he declares that his theory ‘is not’ one thing or another, or that it has been ‘misunderstood’. This, in part, will allow me to see the reach of the theory and its limits. I also think that this approach will allow me a clearer perspective on the differences between the two theorists.
I now wish to focus on some themes in Kennedy’s work that will allow me to draw comparisons with the work of Dworkin, before I turn to the final chapter, where I discuss the differences between the two theorists, the meaning of those differences and their relevance.
3.1 Working on the Materials-Freedom and Constraints
Kennedy starts from the simple truism that any talk about judging in the abstract is almost meaningless. We always stand somewhere. Thus, he claims: “I don’t find myself at all convinced when people start out claiming they can tell us about judging without some grounding in a specific imagined situation.”Footnote 119
The idea that we can separate ourselves and claim an objective distance from the legal materials, as if those materials were something standing on their own is in part an illusion. We meet legal materials in the process of applying them, and this is the project that Kennedy assigns to himself: “I am going to be looking at law as a person who will have to apply it.”Footnote 120 In this, sense Kennedy narrows the gap between law and applying the law, but as we saw, this is also an impulse that Dworkin develops when he challenges that positivist understanding of law as plain fact.Footnote 121 As we also saw, Dworkin questions this separateness and defines the question of what law is and what law should be (the question of application) as untangled questions. But Dworkin reserves some ontological priority for the ‘legal materials’—as explicit materials or implicit latent principles—that Kennedy denies. Thus, late Kennedy works carry a phenomenological stress, aiming to focus more on the activity of judging and the way the judge experiences this activity, and less on the legal materials themselves.Footnote 122 The more time passes, the more Kennedy seems to focus on the ‘meeting’ of the judge with the materials, and less on each separate side of this meeting.
The key word for Kennedy is “work”.Footnote 123 As he puts it: “The phenomenological account is supposed to persuade the reader that jurists often destabilize their initial experience of legal compulsion by legal work [emphasis added].”Footnote 124 The image that Kennedy has of the judge is different, in a way from Hercules, for while Hercules is an active judge imposing purpose, he is still an absolutely disinterested judge who has no stakes whatsoever in the result case in front of him. Kennedy’s judge, on the other hand, has a strategic goal. He works on the materials and tries to take them one direction or the other, but that does not mean that the materials do surrender to his desire, or interest, to move this way or that way: “The two pieces together represent the experience of legal reasoning as an activity perused in a medium that is at once plastic and resistant” [emphasis added].Footnote 125
Sometimes, judges feel they can manipulate the materials in a direction that they want the case to come toward; at other times they experience the resistant power of the legal materials constraining their activity and their strategic attempt to take the decision one way or another.Footnote 126 But this constraint is never a quality of the materials ‘themselves’, because for Kennedy the ‘materials themselves’ are no more than the Kantian thing itself—which we know does exist but we can never know what it really is; it will remain a black hole for us, or a sealed box.Footnote 127 Sometimes, judges start their work on the materials with a certain experience of constraint that stands in the way of their attempt to reach their preferred decision, but in a later stage, they destabilize this constraint and feel freer to decide otherwise. At other times still, judges can experience the materials the other way around: although they started with a sense of freedom to decide, they end up with an experience of constraint.Footnote 128
The moment we begin to view the work of the judge from inside practice, the question stops being whether the judge is free or constrained, for this is difficult to say this in abstract terms without regard to the specific experience of the judge at hand: “The judge is neither free nor bound. I do not see it that way from inside the situation. From inside the situation the question is, where I am going to deploy the resources I have available for this case? The issue is how I should direct my work to bring about an outcome that accord with my sense of justice.”Footnote 129
Here, Kennedy pushes the impulse of the “persistence of purpose” to its end. The judge works with a purpose and this purpose persists through and through the legal work: “Legal reasoning is like a work with purpose.”Footnote 130 The idea of purpose is not at all alien to Dworkin, but Dworkin thinks that this purpose is somehow explicitly or implicitly latent in the legal materials themselves; while the judge’s role is to construct this purpose in a creative interpretation, the purpose is also latent and awaiting its active reconstruction by the judge, and it is separable from the judge’s own purposes, and as such it might be identifiable.
While Kennedy goes all the way in questioning the subject-object distinction, Dworkin, despite his anti-foundationalism, retains the distance that allows the judge, through creative interpretation to ‘find’ those latent purposes. But for Kennedy, while being a judge clearly means being aware of the constrains of the medium, there is no reason to assume that being a judge consumes all of our human existence and interests in life—as citizens, husbands, fathers, workers, intellectuals etc., with ideas ideals and convictions. As such, Kennedy argues that “having to work to achieve an outcome is in my view fundamental to the situation of the judge.”Footnote 131 Despite this however, Kennedy never argues that the judge’s purposes will always decide the case for this or that party; on the contrary, he bluntly admits that “the judge’s work may end by reversing rather than allowing the realization of his personal agenda.”Footnote 132 If this is Kennedy’s position, then the difference between him and Dworkin turns not on the fact of creativity, work, and constrains by legal materials—as they both agree on those; rather, it turns on the fact that Kennedy will insist that judges have a ‘personal agenda’ or personal purpose, while Dworkin tends to water down this important fact.
3.2 Kennedy on Determinacy
All of this brings me to Kennedy’s take on determinacy. As we saw, Dworkin’s position on determinacy is complicated: he never makes a clear argument that legal questions have one objective answer, so his determinacy is not strongly determined.
I will now formulate Kennedy’s take on determinacy, in order to show that while there is a clear difference between the two thinkers, Kennedy’s argument is actually far from being that all cases can be manipulated, and always allow one to argue either way, resulting in radical indeterminacy in the process of legal reasoning. Kennedy’s phenomenological approach stands in the way here and does not in fact allow him to make such an ontologically sweeping argument about the nature of legal materials ‘themselves.’ Kennedy suggests that rules can sometimes work and can be ready for application. He denies any global argument based on theories of Wittgenstein or on Derrida that rules can never be applied to concrete particular cases. He writes:
I believe that it is possible to communicate with another person so that we both have roughly same rule in mind […] it is sometimes meaningful to describe what has happened as we “applied the rule to the facts”.Footnote 133
Kennedy thus avoids sweeping arguments that general rules do not decide cases, as they sometimes do.Footnote 134 But the “they sometimes do” is not something that we can predict beforehand without entering practice itself, without struggling with the materials, working on them, trying to twist them, use them, abuse them etc. The closure, or the application, is just something that the judge may experience from within practice, but one will not be able to identify anything global, objective, and external to the practice itself. It is not clear why the judge sometimes feels or experiences closure and application, while at other times, he does not.Footnote 135 So it would be absurd, in Kennedy’s view, to argue categorically that rule application can never happen: that would be as dogmatic as arguing that it always happens. For this reason, he sums up his position by arguing that “[r]ule application is something that does happen, but I never experience it as something that has to happen.”Footnote 136 Rules always appear in the process of being applied by someone, to a particular case, and as such, the same rule “may at any given moment appear objective; but at the next moment it may appear manipulable.”Footnote 137
Given this understanding of law and legal reasoning, it should not come as a surprise that Kennedy asserts in his later writings that “I make no general assertion that law is always indeterminate, or that it is both possible to argue both sides of a question.”Footnote 138 Kennedy does not support elaborate theories of deconstruction that claim we can deconstruct every rule and every principle: “Deconstruction is rather an event brought about by someone doing the work of deconstruction: whether it will ‘happen’ in any given case cannot be known in advance, no matter how sure the de-constructor may feel that he or she will succeed.”Footnote 139
Rule application, necessity, closure, do happen, but they happen as an ‘effect’, as product of the judge’s experience, and as the end result of the struggle with the materials—as something that appears at the end of a process, not as something primordial that dictates the result from the start.
This understanding allows Kennedy to read other legal theorists as having something in common, despite the first impression that they may appear to be holding opposite or contradictory positions. Kennedy applies his insights to analyze and compare the work of both Hart and Kelsen.Footnote 140 Anyone acquainted with Hart’s and Kelsen’s theories of interpretationFootnote 141 is aware of the difference between the two. Hart makes the distinction between ‘core’ and ‘penumbra’ of the norm, where at the ‘core’ of the norm, rule application takes place without strong discretion, and at the penumbra the judge has a strong discretion and has to act as deputy legislator. Kelsen, on the other hand, thinks that every norm has several competing reasonable interpretations, and that there is no scientific legal way to decide which the better interpretation of the norm is. In this view, there is a certain box within which all interpretations are reasonable and equally valid for Kelsen, and the judge has to choose among them. For Kelsen, this choice must be political by its nature, as the judge is left without guidance. To any reader, there is a clear difference between the two approaches: for Kelsen, even within the box, the choice is political and unavoidable, but for Hart, there are cases within the ‘core’ where rule application seems simply to follow without discretion. What Kennedy insists on noting, through his phenomenological approach, is that both Kelsen and Hart assume the ontologically separate independence of the rule, and that both assume that they can make a distinction between what is inside the box and what lies outside the box in the case of Kelsen, or in the ‘core’ and the ‘penumbra’ in Hart’s case. But for Kennedy, these distinctions do not make any sense, since they assume the existence of the legal materials independent of the judge’s work, struggle, or strategic reading of the materials.Footnote 142
3.3 Kennedy, Legal Materials and Phenomenology
Though phenomenology seems to be the last word of late Kennedy, I still think that late Kennedy is better understood in relation to early Kennedy. One may mark the article “Roll over Beethoven”Footnote 143 as signaling this change. Let’s make it clear from the outset: this is not a major change, but rather a change in emphasis and level of sophistication to avoid critiques by other legal theorists. In the phenomenological approach, Kennedy explains, “there is no outside perspective from which to judge that a period experiences operativeness in concepts that are ‘really’ so vague or incoherent as to be useless, or, conversely, that period failed to understand the ‘underlying logic’ of legal relations.”Footnote 144 In this approach, it becomes useless to speak of abuse of deduction in general or legal formalism in the abstract, as if we have a clear method to distinguish cases of right deduction from cases where deduction is abused. Kennedy explains: “In my version, all systems are deductive but they vary in the level of abstraction at which the deduction is experienced as convincing. This is a phenomenological criterion because we distinguish systems according to how the participants experience them, rather than according to whether they really are or are not using deduction correctly.”Footnote 145
Still, I want to argue, the late Kennedy needs the “supplement” of early Kennedy, and it is with the help of the early Kennedy that late Kennedy makes more sense. By putting some emphasis on early Kennedy, I aim to push Kennedy in the direction of Dworkin. Although phenomenology already plays a major role early on in Kennedy’s project,Footnote 146 I nevertheless want to argue that it plays an even greater role in late Kennedy. While early Kennedy deals with the question of how judges decide cases, much of his effort goes elsewhere—to the ‘nature’ of legal materials themselves. The reader of Kennedy’s two early major papers “Form and Substance in Private Law Adjudication”Footnote 147 and “Blackstone Commentary”Footnote 148 can discern a certain focus on the conflictual nature of the legal materials themselves: ‘Individualism’ and ‘Altruism’, being alone and being with others. These two poles push and pull us to different directions all the time, and it is futile to think that we can find a rational way to create equilibrium between the two; any way we decide to draw the line is a compromise that requires decision. This aspect of the works of Critical Legal Studies attracted perhaps most of the attention, as if CLS and Kennedy were arguing that legal materials by their nature are always indeterminate and conflictual to the point that it does not make sense to speak of legal reasoning as a process that can lead us to the ‘right’ answer. In this regard, if Dworkin maintains a distinction between policy and principle and thinks that we can reach a closure by weighting and balancing between the different principles, Kennedy clearly questions that: it would be naïve to think that principles can bring us to any closure, if rules are not able to achieve this. Principles are as undetermined, indeterminate and conflicted as rules are.
I believe that reading early Kennedy, with a touch more emphasis on legal materials, helps us accept the later Kennedy, who focuses on the phenomenology of decision making by judges. In this regard, one can discern is a double movement in the work of Kennedy, which joins together into a complete picture: on the one hand, Kennedy stresses the active role of the judge (subject), and on the other hand he shows the open/manipulative nature of the legal materials themselves (object). The outcome of this double movement is a new totality of subject and object entangled together, and mutually constitutive of each other in a restless movement. Kennedy does not reach this conclusion as a matter of philosophical reflection, but rather by reflecting on legal materials and the way judges treat these materials.Footnote 149 Kennedy’s phenomenology appears on the surface ‘after’ an attempt to struggle with the legal materials themselves, subduing them at times and surrendering to them at others. In this regard, phenomenology ends up being the concept that describes Kennedy’s experience in tinkering with the legal materials, rather than a philosophical approach that guides his project; in phenomenology, Kennedy finally finds the vocabulary to capture the nature of his struggle with the legal materials. In this sense, one does not need to commit beforehand to Hegel’s, Sartre or Husserl’s phenomenology to accept Kennedy’s take on the nature of legal reasoning and interpretation. Clearly, Kennedy was inspired by Sartre’s phenomenology—as he himself testifiesFootnote 150—but the insights of his analysis stands on their own, and they do so because they work closely and intimately with the legal materials themselves.Footnote 151 The work and effort that early Kennedy invested in exploring the legal materials ‘themselves’ plays an important role in the overall project, despite the distance that Kennedy stresses later in his writings.
But to complete the picture, we need Dworkin again. And I want to argue that phenomenology plays also an increasing role in Dworkin’s project throughout the years. If the No-Right-Answer in Kennedy shifts from being a statement about the nature of the legal materials, to becoming more of a phenomenology of judging, something similar happens to Dworkin’s thesis regarding the right answer: it becomes less a statement about the nature of the legal and moral materials and becomes—among other things—a statement about the phenomenology of judging.Footnote 152
3.4 Kennedy On the Relative Autonomy of Law
It is often thought that Kennedy collapses the distinction between law and politics completely, as if law was just another form of politics. That is true, but only partially so. We saw above that for Kennedy, law is always penetrated by politics and ideology, but that does not mean that law is reducible to either, as if there was no unique domain called ‘law’. This is clearly not a position that Kennedy will subscribe to in any way. In fact, one of the distinguishing features of Kennedy’s work within the CLS tradition is this exact insistence on what he labeled ‘Legal Consciousness’,Footnote 153 in contrast to the work of Morton Horowitz, for example, which bears some Marxist influences, in particular, the concepts of base and superstructure.Footnote 154 Kennedy wants to insist on the relative autonomy of law and legal thought, though it is not always easy to pin down exactly what this means, in part because Kennedy leaves it intentionally vague. On the one hand, legal consciousness is a sub-system within consciousness.
A sub-system is distinct from the larger entity, utilizing a small set of conceptual building blocks, along with small set of typical arguments as to how the concepts should be applied, to produce results that seem to the jurists involved to have a right level of coherence within and across legal fields.Footnote 155
Now, this is clearly an image of law that does not consider law and politics as just one and the same domain. In fact, Kennedy states clearly that he thinks that legal thought “is distinguishable from other bodies of thought, say economic and political and social and religious thought, and also ‘relatively autonomous’ from the interests, material and ideal, that impel social actors to take positions about what the law in particular cases is or ought to be.”Footnote 156 This is a position that Kennedy adopts early on, and he wants to avoid any Marxist style of determinism that can ‘explain’ law simply by referring it to interest structures, and powers outside law. In his study of the Blackstone Commentary, he focuses on legal thought itself while “ignoring the question of what brings a legal consciousness into being, what causes it to change and what effects it has on the actions of those who live it.”Footnote 157 But why that severing of legal thought from its environment? Kennedy’s answer is that “we need to understand far more than we [now] do about the content and [the] internal structure of legal thought, before we can hope to link it in any convincing way to other aspects of social, political, or economic life.”Footnote 158 The Kennedy of these passages is Kennedy the lawyer, who wants to argue for the importance, complexity, and richness of legal doctrine, and for legal consciousness as being relatively autonomous.Footnote 159 In this regard, Kennedy wants to insist that sometimes law and legal doctrine act according to their own ‘logic’, without being determined from the outside.
Let me pause here to indicate some level of homology in the form of arguments of both Dworkin and Kennedy. Dworkin seems to let law loose, an open-ended project penetrated by moral principles, facing the accusation of manipulability. But Dworkin is swift to dissolve this superficial picture by limiting principles to legal principles, drawing boundaries between law and policy, between rights and goals and thus establishing the boundary between law and non-law. At first reading, one might think that Kennedy also opens the line between law and politics/ideology, but closer reading will reveal immediately that he holds law to be ‘separate’ from politics, or at least as not entirely collapsing into it. Rather, he thinks that “we believe that these things mutually affect each other and that each level has its resistance, its impermeability, its opacity, none is simple transparent reflection or product of another level”.Footnote 160 Still, there is a difference.
3.5 Kennedy on Responsibility
Dworkin has stressed the question of responsibility of the judge. The question arises in relation to Kennedy: if neither the legal materials, nor principles or policy, nor ideology bring closure, then what does? and how does closure happen? If the necessity that judges experience is a ‘false necessity’, then what is the judge’s responsibility, and how is it different from the judge’s responsibility in Dworkin?
Kennedy wants the judges to be aware of the fact that they have discretion. “The jurist has to decide in every case how to orient his or her work or non-work […] the actors/agent has to decide, according to his or her personal convictions, in which direction to work.”Footnote 161 Kennedy wants judges to remember that they are “constantly exercising a denied discretion in choosing a work strategy. Once I have acknowledged this, my thought is that I have to start taking responsibility for the discretion.” The responsibility that Kennedy is referring to is the Weberian sense of responsibility, meaning “responsibility for all the consequences, without being able to appeal to a coherent socially accepted set of criteria of justification.”Footnote 162 Given that both use the term ‘responsibility’, the difference lies in the different ways they understand the term, and the object of responsibility. In Dworkin responsibility means responsibility to the ‘judgment’, but in Kennedy it means responsibility to the ‘decision’. What, then, is the nature of the difference between decision and judgment?
4. The Structural Commonalities and the Persisting Differences Instead of Conclusion
First, I would like to refine and to put in perspective the ideas and approaches that we tend to associate with each of the two thinkers.
Dworkin’s understanding of objectivity ranges from deduction, to likelihood, and to giving reasons for a practical decision. At any case, it is not strong objectivity. On the other hand, Kennedy’s thesis of indeterminacy is also not as it sounds: the phenomenological account stands in the way of his making any global claim about indeterminacy in general. Sometimes, the judges simply experience determinacy and closure and sometimes rules are just operative and deduction works, or at least we experience that it does. Legal materials are not always manipulated, and judges sometimes feel constrained. For Kennedy, law and politics are not one and the same; in a certain sense they are separate, but unlike Dworkin, he does not know exactly how to find out where the boundary ends. At the end of the day, Kennedy is not particularly subjectivist, and Dworkin is not particularly objectivist.
On the other hand, we also saw some common themes. At the expense of some reductionism, I want to sum up some of the views of law that both theorists share, to prepare the ground for a refined way of elucidating the deep differences that they still have.
Law is not merely a collection of rules: background principles, values, and policies, play a major law in law and adjudicating. These are already part of legal reasoning. Both theorists think that law is not a collection of explicit legal materials but agree that there is always an implicit body of law. Law is never exhausted by what has been written or said. Both have a unified theory of hard and easy cases, and they view law as totality. Both hold theories of law that have an intimate relation between their vision of the objectivity/ non-objectivity within law, and the objectivity/non-objectivity of ideology/morals in generals. The same is true for freedom and constraint in adjudication: both think in terms of freedom and constraints. The judge is not on the receptive side—rather, like the Kantian pupil of the Critique of Pure Reason one asks questions and interrogates the legal materials. The judge is neither fully free, nor fully constrained. For both of them, interpretation is purposive activity, and the interpreter works on legal materials armed with purpose.
This leads me to an important commonality that lies on the surface but hides a deeper divide, and, I think, contains a clue as to the nature of some of the deeper divides between Kennedy and Dworkin. This is the question of the internal and external point of view.
As we explained above, both Kennedy and Dworkin are internalist—they eschew any Archimedean theory, focusing rather on legal practice itself. Both resort to the phenomenology of judging as part of their arguments, and both take the internal point of view extremely seriously.
I think that issue of internal/external needs to be elaborated in order to clarify the difference between Dworkin and Kennedy. In many ways, Dworkin does take the internal point of view already taken by Hart.Footnote 163 Kennedy takes the internal perspective as well, but there is a difference between the two internal points of view that each of them inhabits. Dworkin—following Hart—takes the internal point of view in order to make sense of the participants’ understanding of the practice of law. But as we know, Hart’s internal point of view aims, among other things, at solve the problem of normativity of law, which he thought the theory of Austin could not and is not able to resolve.Footnote 164 Thus, the turn to the internal has not only one mission—it has two: one is associated with descriptive sociology, which claims that in any accurate description of the practice must make sense from the point view of the participants themselves, while the second is normative: the participants in the practice have good (normative) reasons to comply with its rules.
Now, in what sense Dworkin is internal? And how does his internal point differ from that of Kennedy?
As we saw above, the internal point of view that starts with Hart ends up with Dworkin as mainly a normative point of view, if not to say the moral point of view. As Stephen Perry succinctly notes, “the seeds of Dworkin’s strong version of interpretivism where sown by Hart himself.”Footnote 165 With Hart, the internal point of view was playing some normative role, but it was mainly part of a sociological understanding of law.Footnote 166 With Dworkin, the main question of jurisprudence ends up being the question of how judges should decide cases. No wonder that jurisprudence for Dworkin ends up mainly as something about interpretation practiced by the judge. For Dworkin, legal theorists became engaged in the same sort of activity as those of judges, “which is a form of practical reasoning.”Footnote 167
I take it that one of the ways to account for the differences between Dworkin and Kennedy lies in their attitudes to this issue. While Kennedy is clearly committed to the internal point of view, he is not committed to the practical question of how judges should decide cases. In many ways, Kennedy’s phenomenology of adjudication hopes to provide a close analysis of the experience of judging, aimed at discovering the process itself, and describing it a refined manner.Footnote 168 A reader of Kennedy does not experience the normative practical pressure as to how the judge should decide, here and now. Kennedy takes his time understanding what is going on before he decides to move further and say something about the decision made by the judge.Footnote 169 Kennedy is more interested in exposing and demystifying the judicial process that conveys false necessity, the false necessity which “is always obstacle to emancipation”.Footnote 170 While Kennedy, in this sense, is sitting within the practice, he does not collapse the question of jurisprudence into the question of interpretation by the judge. Kennedy is far from being unique on that point, as many have intended to maintain the difference between explanation and description on the one hand, and interpretation on the other.Footnote 171 But what may well make him unique is the strong combination he offers of internal understanding together with a descriptive account of law. That is not to say that Kennedy has interest only in theoretical reasoning, as such, and lacks any interest in the practical. He obviously has an interest in both—it would be surprising if he didn’t—but the issue is that he thinks of the judge in political terms, not only legal terms. The judge is still a citizen, and part of the world of politics. The judge can act either by politicization of the legal discourse, or simply by withdrawing from the system whenever the judge feels “there is nothing else to do” apart from “politicization or hypocrisy”.Footnote 172 On the other hand, it is clear that Dworkin is in no rush to give up on the gravity of the past and to quit the system. He nevertheless recognizes that at a certain point, the judge must become aware that he can’t achieve anything within the existing legal system, principally in the case of iniquitous or ‘evil’ legal systems. What then? For Dworkin, this is simply the time for more drastic measures; time for revolution, no more, no less.Footnote 173 In this sense, both Dworkin and Kennedy, think that at some point, one needs to leave the system, and they differ on two things: when to leave the system, and the attitude one should adopt while still within the system.
This inquiry leads me to narrow the gap between the two, not in order to eliminate it but rather to illuminate it in such a way that it becomes clearer and we become aware of the stakes of the debate. Before I spell out the main difference, let me add some of the caveats that Kennedy offers throughout his writings, where he aims to set the limits of his theory and to avoid misunderstandings.
First, Kennedy avoids dogmatic global skepticism. Though he is skeptical in regard to concepts of objectivity, the subject, and representation, he is also skeptical of any possibility of proving that they do not exist. “I just don’t think anyone has shown it so far, but I could be wrong. I’ve lost faith in the enterprise of trying to show it.”Footnote 174 Trying to prove their absence is as dogmatic as the attempt to show their presence.
Second, Kennedy denies and rejects the charge of nihilism. He, and others like him, make moral and ethical choices all the time, and commit themselves to projects, but he argues that he is simply not able to demonstrate the correctness of those choices.Footnote 175
Third, Kennedy sets clear limits on the role of critique, and does not dispense with the category of ‘faith’. Critique does not leave us with nothing; there is always something that survives critique, something that we can have ‘faith’ in. Critique changes our feeling of self-righteousness.Footnote 176
Four, despite Kennedy’s clear aversion to theory and abstractions, he is fully aware that we are not able to stop—and that we perhaps should not stop—writing theory but notes that “it just means giving up the expectation of rightness in the doing”.Footnote 177
Five, when it comes to his critique of rights, Kennedy is not against the deployment of the discourse of rights in courts or public debates. Sometimes it might work, though at others it may not. But he is in favor of this deployment “as long as the deployer has in mind the element of bad faith in his or her performance”.Footnote 178
I think these smart caveats make Kennedy’s argument more immune to much of the critique directed against him and CLS in general. But this immunity comes at the expense of the thinness of his theory. The reader of Kennedy’s work feels the influence of the first part of Kant’s Critique of Pure Reason, in which Kant sets the limits beyond which reason should not step. Dworkin, on the other hand, continues to read the second half of the first Critique, where the frustrated hopes of theoretical reason are redirected to moral reasoning. It seems, however that Kennedy does not pursue this path, appearing instead to move to aesthetics. No wonder that in much of his writings, and the above quotation can testify to this, he deploys aesthetic terminology of self-fashioning, ways of living and experiencing life. His work is replete with terms such as anxiety, ecstasy, irony, liberation, enticement, transgression, and so on.Footnote 179
Conclusion
The aim of this paper was modest: it aimed to put together representatives of what seemed to be two opposing strands in legal theory: Duncan Kennedy and Ronald Dworkin. I tried to show that beneath the image of opposition there are many commonalities that allows us to read them together. These commonalities can testify to some of the common threads of legal theory and its common underpinning despite the apparent opposition. Furthermore, I tried to destabilize the common image of each: Dworkin as holding an objectivist theory of determinacy and Kennedy as champion of indeterminacy. In the paper I tried to modify this stark image of opposition. This does not mean that I intended to eliminate the difference but between the two rather to have a better grasp of it.
In this sense, we could say that Kennedy and Dworkin have different sensibilities on the one hand, and different projects, on the other. They do compete on certain levels, but on other levels they simply speak across each other, dealing with different levels of the legal experience. In certain ways, Kennedy locates the sense of objectivity, closure, rightness as the enemy,Footnote 180 while Dworkin views this the other way around: these could be liberating, or at least deployed for progressive politics. Kennedy will not object to this deployment but will ask demand awareness of the fact that the objectivity that you are deploying does not exist. In this regard we can say that Dworkin’s theory of interpretation can help us make moves within the legal field, but Kennedy tells us how to reflect on and how to feel about these moves. We are not only practitioners; we can also take a step away from the practice.
Because of the difference in emphasis, we can view both thinkers as aiming in part at doing different things and as addressing different audiences. On the level of descriptive theory, I find Kennedy’s phenomenology more appealing and more accurate. (In the present paper I will not able to offer any proof for this in any way or add arguments beyond those presented in the existing literature.)Footnote 181 Additionally, Kennedy’s descriptive jurisprudence allows him to develop insights about law that are not related to legal reasoning and the role of the judge but speak about law not only through the eyes of the judge. It seems to me that one of the most crucial and an important contribution of Kennedy to legal theory is his insistence on the constitutive role of law: if it is politics all the way down, it is law all the way up. Law shapes politics and economics as well. Property, the market, the family: all of these are institutions that are constituted and shaped by law.182 What enables this insight, as I see it, is both the descriptive ‘truth-telling impulse’, together with the internal take on law. In this sense, the advantage of Kennedy’s take on law is the scope that he assigns to legal theory, which goes beyond being an advisory role to the judge.
I take one of the major differences between both thinkers to lie in Dworkin’s insistence on the centrality and priority of practical reason. Dworkin can argue that regardless of the better descriptive phenomenology of the judging process itself, it is desirable that we can hold on to this image of the judge—it is better for the judge personally and for the community at large. Kennedy—one will object—does not have a normative theory of adjudication, and for him the judge is just another policy-maker who makes choices. Not only just that, but the concept of mere choice or decision seems incoherent. What does it mean to have a decision that seems to stand outside the gravitational force of normative considerations? The Weberian responsibility that Kennedy is referring to is not much different from what I would call judgment. I have not claimed that there are logical entailments between the premises and the result, and Kennedy does not really think that it is just a matter of preferences or whims. The difference is that my theory enjoins the judge to dig harder, while his does not. Kennedy owes us a theory of decision and an explanation of how it is different from making a judgment.
Dworkin’s analysis of legal reasoning and practical reasoning in general invites images of coherence and of the compatibility, despite the competition, of values in general. This image stands in contrast to the one Kennedy portrays in his writings: an aesthetic of pain and rupture, a split and unredeemed self, full of wounds that can never be healed, and wounds that one should embrace instead of hiding. There is something aesthetic about the difference between the two. Saying aesthetic is not intended to play down this difference; rather, it is intended to portray it as comprehensive and conveying a different outlook on life, politics and law. By using the word ‘aesthetic’ I mean to suggest that the difference between the two theorists is unbridgeable. There is no way to convince one of them to adopt the other’s point of view, for the simple reason that they are driven by different drives, visions of life, pleasures, and senses of what makes life interesting and worth living.
