Leiter - Explaining Theoretical Disagreement (2009)

Explaining Theoretical Disagreement Author(s): Brian Leiter Reviewed work(s): Source: The University of Chicago Law Review, Vol.
76, No. 3 (Summer 2009), pp. 1215-1250 Published by: The University of Chicago Law Review Stable URL: http://www.jstor.org/stable/27793403 . Accessed: 10/01/2013 09:00
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Explaining Theoretical Disagreement

Brian Leiter^
Ronald Dworkin posed a new objection to Scott Shapiro has recentlyargued that inLaw's Empire, towhich positivists, he says, have not adequately re legal positivism sponded. Positivists, the objection goes, have no satisfactoryaccount of what Dworkin calls "theoreticaldisagreement" about law, that is,disagreement about "the grounds of law" or what positivists would call the criteriaof legal validity.I agree with Shapiro that the critique is new but disagree that ithas not been met. Positivism cannot offer an ex preserves the "Face Value" of theoreticaldisagreements,because theonly planation that intelligibledispute about the criteria of legal validity is an empirical or "head count" dispute, that is,a dispute about what judges are doing, and how many of themare doing it (since it is theactual practice of officials and theirattitudes towards that practice that thecriteriaof legal validityaccording to the positivist). fixes Positivism, however, has two other explanations for theoretical disagreement,
which
positivists, theoreticaldisagreements are either (1) disingenuous, in the sense that the parties, consciously or unconsciously, are really tryingto change the law?they are try ing to say, as Dworkin puts it,"what itshould be" not "what the law is,"or (2) simply predicated on error because parties to thedisagreement honestly think there is a fact of matter about what thegrounds of law are, and thuswhat the law is, in the contextof the matter their there is no fact of the disagreement, but theyare mistaken, because, in truth, about thegrounds of law in this instanceprecisely because there is no convergentprac tice of behavior among officials constitutinga Rule of Recognition on this point. This Article explores the "Disingenuity" and "Error Theory" accounts of theoreticaldisa greement, with attention to the theoretical desiderata (for example, simplicity,consi lience, methodological conservativism) at stake in choosing between competing expla Particular attention is given to thebest explanation for Riggs Palmer natory theories. in lightof theactual historical context of thedecision and other opinions by theRiggs
judges in contemporaneous cases.
"explain
away"
rather
than preserve
the "Face
Value"
disagreement.
According
to
t Human
John P. Wilson
Professor
of Law
and Director
of the Center
Values, The University of Chicago Law School. to John Gardner, Leslie Green, Mark Greenberg, Thanks cussion of these issues on various occasions, and to Greenberg
for Law, Philosophy,
and
for useful dis and Scott Shapiro for quite helpful discussion of an
I also benefited from questions and comments by students in my early draft of this Article. this topic. Spring 2007 Jurisprudence class at the University of Texas at Austin when we discussed at a variety of venues provided valuable audiences feedback and discussion: the Fa Workshop in Social and Political Theory, Research School of Social Sciences, culty of Law and Program Australian National University; UCLA School of Law; the Institute for Philosophical Investiga of the Faculties the jurisprudence departments tion, National Autonomous University of Mexico; in Italy and Girona of Law at the Universities of Genoa in Spain, and the University of Chicago I should mention Law School. Of the many who helped me on these occasions, especially Peter Guastini, Larry Laudan, and Ed Stein. Adam Muchmore, Martha Nussbaum, Giovanni Ratti,
Cane, Riccardo Jane Stapleton,
1215
1216
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Law Review
[76:1215
Introduction
Scott "winner" agrees, "to some extent,"1 with my verdict that the Shapiro "Hart-Dworkin of the so-called debate" about the nature of Hart's legal positivism.2 Where he disagrees is that he
law was H.L.A.
to this new According count of what Dworkin
thinks Ronald Dworkin posed a new kind of objection to positivism in Law's Empire to which positivists have not adequately responded.
objection, positivists have no satisfactory ac calls "theoretical about law.4 disagreement" to Dworkin's "is particularly vulnerable says Shapiro, "[P]ositivism," If that were in Law's true, Shapiro's argument critique Empire."5
Dworkin's cri would, indeed, be significant.I agree with Shapiro that inLaw's Empire is differentfrom the earlier ones thathave long tique ago been deflected or discredited.61 disagree that the "new" critique is compelling or that positivists have failed to respond to it.Notwith standing Shapiro's heroic effort at resuscitation,my verdict on the
"Hart-Dworkin debate" stands. I. theoretical disagreement
When lawyers or judges have a theoretical disagreement about law inDworkin's sense, they are disagreeing about what most legal philosophers call the criteria of legal validity (and what Dworkin calls the "grounds of law"): that is, they are disagreeing about the criteria
some norm must
times say, "legally binding" or "a norm of that legal system"). So, for example, judges might "disagree about whether statute books and judicial decisions exhaust the pertinent grounds of law";7 that is, they might disagree about whether a legallybinding normmust necessarily be found in a statute book or judicial decision. Perhaps theKoran or
1 inArthur Scott J. Shapiro, The 'Hart-Dworkin' Debate: A Short Guide for the Perplexed, 22,49 (Cambridge 2007). Ripstein, ed, Ronald Dworkin 2 in Juri The Methodology Problem Debate: theHart/Dworkin See Brian Leiter, Beyond Legal Jurisprudence: Essays on American sprudence, reprinted in Brian Leiter, ed, Naturalizing Am
satisfy to count
as "legally
valid"
(or, as I shall some
Realism andNaturalism inLegal Philosophy 153,154 (Oxford2007), originally published in48

generally 3 version of these doubts, see J Juris 17 (2003). For a shorter, punchier, and more polemical in the 21st Century, 36 and Jurisprudence Brian Leiter, The End of Empire: Dworkin Ronald Dworkin, Law's Empire 4-6 (Belknap 1986). as a disagreement Id (describing "theoretical disagreement" Shapiro, Short Guide at 50 (cited in note 1). See Leiter, Beyond of the arguments Dworkin, Law's theHart/Dworkin at 5 (cited Debate at 155-64 in the Hart-Dworkin debate). in note 3).
RutgersL J 165 (2004).

4 5 6 overview 7
about (cited
law's grounds). (providing an
in note 2)
Empire
Disagreement 2009] ExplainingTheoretical
1217
theNew Testament of the Bible is also a pertinent ground of law? Perhaps what ismorally obligatory is a ground of law? Perhaps eco nomic efficiency is a ground of law? Insofar as jurists disagree about these questions, theyare engaged in a theoreticaldisagreement.8 In fact,though,no participants in the theoreticaldisagreements to which Dworkin calls attention deny that statutes and judicial decisions are grounds of law,nor do they claim that judgesmust turn to sacred The theoretical textsor economics journals to figureout what the law is. Dworkin presuppose that statutes and judi that interest disagreements cial decisions are, indeed, "grounds of law,"but deny that thissettles the question ofwhat the criteriaof legal validity reallyare: thekey theoreti Consider two of Dworkin's central examples of theoretical disa greement. In Riggs Palmer the question was whether Elmer was entitled to inherit under the will of his grandfatherwhom he had The murdered in order to claim his inheritance.11 majority of theNew
8 pendent as inde at 41,54
concern of the acknowl the meaning for Dworkin cal disagreements sources of law such as statutes and constitutional texts.9 edged
57 (cited innote 1).As Shapiroputs it:

The
in treating the argument from theoretical disagreement I shall follow Shapiro calls the" semantic sting" argument. See Shapiro, Short Guide of what Dworkin
semantic sting [argument] is used to explain why positivists require the grounds of law to be determined by consensus [that is, by the social rule constituting the Rule of Recogni because that positivists insist on consensus they tacitly sub hypothesizes tion]. Dworkin scribe to a criterial semantics, according to which concepts may be shared only if the criteria for the proper application of the Rule of the concepts are shared.
see text accompanying note 32. There of Recognition, is, as vari ous writers have pointed out, no reason to think that the positivist theory of the concept of law is to criterial semantics. A locus classicus for this point is Joseph Raz, Two Views of the committed Id. For a discussion Nature 4 Legal Theory 249, 258-65 (1998). The of the Theory of Law: A Partial Comparison, survives the refutation of the "semantic sting" argu argument from theoretical disagreement it calls our attention to cases in which people disagree about the "grounds of law" ment because to the speakers) that settle what the even in the absence of any criteria (even criteria unknown grounds of law are. 9 There are two levels at which judges might disagree about the "meaning" of an authorita tive legal source: theymight, most obviously, disagree about the meaning of the text, or theymight or interpretation that agree about the meaning but disagree about the correct theory of meaning explains why the textmeans 11
favorable
since the features of the case that are important for Dworkin's is not accidental, argu probably in 1967. ment twenty years later in Law's Empire are rather different than those he emphasized The Model See generally Ronald M. Dworkin, of Rules, 35 U Chi L Rev 14 (1967). I shall return to that point in Part III.
his grandfather to prevent him from changing the Id at 189 (noting that Elmer poisoned the case in his famous The Model of his will). Dworkin discussed of Rules I, provisions refers to inRonald Dworkin, 1977), but in Law's Empire Taking Rights Seriously 14,23 (Harvard in name at 15 (cited in note 3). The change Law's Empire See Dworkin, it as "Elmer's Case."
10 22NE 188 (NY 1889).
what
means. This distinction proves it
important in Parts II and III.
1218
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[76:1215
York court held thathe was not entitled to inherit;the dissent thought
otherwise. But the two sides what wrote?was
"[TJheirdisagreement?or so it seems from reading the opinions they

about the law actually read."12 was, about what the statute
disagreed
not
simply
about
the result:
required when properly The dissent, says Dworkin, opted for "a to which the words have pretation," according their use or the intentions valid, Elmer was "a very different "it would and
assign them ifwe had no special information about the context of

of their author."13 Since to inherit.14 The the plain meaning
theory of 'literal' inter "the meaning we would
was
of the statutes governingwills made clear that the grandfather'swill

majority, by contrast, to Dworkin.15 according theory of legislation" ... to be absurd that the New York suppose legislators not have any consequence the legisla entitled
had Since
who originally enacted the statute of wills intendedmurderers to in

herit" since "a statute does
torswould have rejected if theyhad contemplated it,"16 majority the concluded thatElmer could not inherit,since the legislature never would have intended a murderer to benefit fromhis misdeed in this way. So inRiggs, the judges had a theoretical disagreement because they disagreed about the relevant criterion of legal validity: is it the plain meaning of the statute the legislature enacted, or is it the coun of terfactualintention the legislatorshad they considered the applica tionof the statute to the factsat hand?
Dworkin
Authority Hilf as another central example of theoretical disagree ment. The Endangered Species Act of 197318includedwithin its scope
an authorization
offers the Supreme
Court's
decision
in Tennessee
Valley
The Tennessee Valley Authority (TVA) had already spent $78 million
building a dam, which, as fate would before ter's habitat.20 The question the snail dar have it, threatened construe the Court was whether
to protect
an obscure
fish called
the "snail
darter."19
12 13 14 15
Dworkin, Id at 17.
Law's
Empire
at 16 (cited in note 3).
Dworkin, 16 Id at 19. 18
Riggs, 22 NE at 191 (Gray dissenting). Law's Empire at 18 (cited in note 3).
as amended at Species Act of 1973, Pub L No 93-205, 87 Stat 884, codified Endangered ? 1531 et seq. See Endangered ? 1536 (authorizing Species Act ? 7, 87 Stat at 892, codified at 16 USC the Secretary of the Interior to designate endangered species and their critical habitats). See also as an endangered Hill, 437 US at 159-60 (explaining how the snail darter came to be designated 16 USC 19 species). 20 Hill, 437 US at 166,171.
17 437US 153 (1978).
2009] Explaining
Theoretical Disagreement
1219
The tionmust stop because of the danger to the protected fish.21 ma said yes, the dissent no; but, as with Riggs, the crux of theirpur jority
ported theoretical
modicum glosses
dangered Species Act. The majority, though giving a nod to the relev ance of legislative intention, took the view, according to Dworkin, "thatwhen the text is clear theCourt has no rightto refuse to apply it The dissent, by contrast, just because it believes the results silly."22 that the statutemust be read so as to "accordQ with some thought
of common sense
disagreement
concerned
the meaning
of the En
was intended."24 Hill The only if they find compelling evidence that it shares with the Riggs majority the view that legislative dissent, then, intention?including hypothetical or counterfactual legislative inten
tion?controls law is. Now, the meaning of a statute, hence are not controlling what the
as meaning
"that
the public the courts should
and
weal,"23 which Dworkin an absurd result accept
theoretical
Dworkin's
lawyers and judges have about the law. Some disagreements are, in
terms, merely "empirical";25 that is, the parties agree about
disagreements
the only
disagreements
whether enough
the criteriaof legal validity?for example, being approved by a majori tyof the legislature and not vetoed by the executive sufficestomake a norm legally binding?but disagree about whether those criteria are satisfied in a particular case. (Did a majority really approve the legisla tion?Did the executive veto the legislation in a timely way?) Certain kinds of empirical disagreements are relatively few and farbetween in court decisions: it is rare to find the courts debating, for example,
a statute was or was not votes
greements about the intentionsof the legislature: even when judges may disagree about what the agree that intention is controlling, they intention really is or would have been given legislative history, the
reasonable and meaning legislation, and of statutory the like. These are, in any empirical disagreements new objection to legal positivism. as a book "about theoretical dis Empire language, contemporaneous events
to pass. More
common,
or whether it received vetoed, disa of course, are empirical
case, not at issue inDworkin's describes Law's Dworkin
agreement in law" that "constructs] and defend[s] a particular theory"

21 22
Id at 173.
Dworkin, Law's Empire at 21 (cited in note 3). 23 Id at 23, quoting Hill, 437 US at 196 (Powell dissenting). 24 Dworkin, Law's Empire at 23 (cited in note 3), citing Hill, ing). 25 Dworkin, Law's Empire at 5 (cited in note 3).
437 US
at 196 (Powell
dissent
1220
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[76:1215
of law thatexplains such disagreement and how it is possible. He dec

lares that "[i]ncredibly, our
positivism?"has
this jurisprudence "distorts law,"27 and that, in consequence, and is therefore "an evasion rather than a theory."29 tice"28
no plausible theory of theoretical disagreement in

legal prac
jurisprudence"?by
which
he means
legal
II. The Positivist Account
of Theoretical
Disagreement
alectical be
Before turningto thepositivist account (and why Dworkin deems it inadequate), it isworth pausing a moment to notice the curious di
structure of Dworkin's around should a theory of law argument. Why the phenomenon of theoretical disagreement some showing?nowhere to be found in Dworkin's the central (or even a central) feature
organized about law, absent it is somehow corpus?that should be abandoned
of
And why thinka competing theory, law and legal systems? positivism,
because it fails to have an account of theoretical
disagreement? No physicists,after all, have abandoned the theoryof even thoughno one knows how to square it with the fact that gravity,
the universe
which
of the universe is one of only a multitude of empirical phenomena to

a theory of gravity must answer, and the theory answers quite
is expanding.30 The
reason,
of course,
is that the expansion
we agreed with Dworkin that well to almost all the others. So even if an unsatisfactoryaccount of theoretical dis legal positivism provided agreement in law, thiswould be of no significanceunless we thought thenature of law and legal systems.I return to this issue below. But what do legal positivists say about theoretical disagreement and why is their account inadequate on Dworkin's view? Recall the
26 Id at 11. In order to argues we must treat law explain theoretical disagreement, Dworkin as an "interpretive concept," and that his theory, "Law as Integrity," provides the best interpreta tion of that concept. Id at 87, 94-95. But notice that the central rationale for treating law as an interpretive id at 87. 28 29 concept is that doing so is necessary tomake sense of theoretical disagreement. See
that this phenomenon
was
somehow
central
to an understanding
of
Id at 6. Id at 15. (cited in note 3) ("If [we] have no good answer to the ... is possible and what it is about, we lack the essentials of what our judges do."). The Fabric of theories, see, for example, Brian Greene, of Reality 230 (Knopf 2004), but not one of them iswell at 11 Law's Empire Dworkin, question how theoretical disagreement for intelligent and constructive criticism 30 There are, to be sure, competing the Cosmos: Space, Time, and the Texture established. online
2009) of the universe
See Margaret Warner, Expanding Universe, PBS Online NewsHour (Feb 27,1998), at http://www.pbs.org/newshour/bb/science/jan-june98/universe_2-27.html (visited Sept 1, the implications of gravity and the data on the nature (discussing the disjunction between and the lack of any commonly accepted explanation).
Disagreement 1221 2009] ExplainingTheoretical basic contours of the positivist theoryas developed byHart. Law, ac
cording and
that is,of primary rules that tell people what they can and cannot do, and resolve disputes about rules,both primary and?with one identify,
of secondary rules that instruct officials exception how to create, change,
to Hart,
is the "combination
of primary
and
secondary
rules,"
the "Rule ofRecognition," which specifies the criteria of legal validity (the "grounds of law" inDworkin's terminology) all other rulesmust That a Rule of satisfyiftheyare to count as rules of that legal system.32 Recognition is the rule for any particular legal community cannot it self be established by reference to other criteria,on pain of infinite 3 regress. Rather, Hart says, theRule ofRecognition is constituted by a certain kind of social practice which gives rise to what Hart calls a
"social rule."34 Social rules exist when
exception?secondary.31
The
is the secondary
rule Hart
calls
behavior by people who evince a certain attitude towards that beha vior: they do not simply converge mindlessly, as itwere, but instead take themselves to have obligations to engage in that behavior.35 The Rule of Recognition, in turn,is just the social rule constituted by the actual practice of officialsdeciding questions about legal validity, inso far as they evince an attitude of having an obligation to decide ques tions of legal validity by reference to the criteria they actually em Judges in theUnited States, forexample, engage in a convergent ploy.36 practice of behavior of invalidating statutes forbidden by the Consti tution.But it is not just an accident that theyengage in such behavior; rather, they take themselves to have an obligation to do so.Ask the chief justice of the Supreme Court, "Why do you invalidate statutes inconsistent with the Constitution?" and, after he is done being puz
31 H.L.A. The Concept of Law 80-81 2d ed 1994):
there is a practice
of convergent
Hart,
(Oxford
modify new ones, or in various ways control 32 Id at 106. 33 Id at 107-10. 34 35 Id at 109.
the one type, which may well be considered the basic or primary type, human beings are re quired to do or abstain from certain actions, whether they wish to or not. Rules of the other type are in a sense parasitic upon or secondary to the first; for they provide that human beings may by doing or saying certain things introduce new rules of the primary type, extinguish or their incidence or control their operations.
we are to do justice to the complexity of a legal system, the need, if [W]e have already seen... to discriminate between two different though related types [of legal rules]. Under the rules of
Hart, The Concept of Law at 91 (cited in note 31). 36 This is the "positive" aspect of the positivist theory of law: what the Rule of Recognition is in a community, hence what the law is, is just a complicated fact about the prac psychosocial tice of officials and their attitudes towards that practice. See Hart, The Concept of Law at 97 (cited in note 31).
1222
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zled, he will reply roughly as follows: "Because that iswhat I have an he would be evincingwhat Hart calls acceptance of theRule of Rec
ognition of the American nality" of view," as one obligation to do as a federal judge."7 In offering that kind of answer
ex Inwhat sense, then,does theHartian positivist have difficulty theoretical disagreement about law? Recall thata theoretical plaining disagreement is a disagreement about the criteriaof legal validity,that is,about the contentof what Hart calls theRule of Recognition. But
the Rule
includes "constitutio legal system?which an "internal point of its criteria of legal validity?from that is, acceptance of it as an obligation-imposing rule.38
content?that is, the criteria of legal validity?is fixed by a complex empirical fact,namely, the actual practice of officials (and the attitude they evince towards the practice). So it looks like the only dispute about the criteriaof legal validity that is possible, on Hart's view, is an judges are doing, and how many of them are doing it, since it is the actual practice of officials and theirattitudes towards that practice that fixes the criteriaof legal validity according to thepositivist. Yet this latterkind of disagreement ismanifestly not at issue in dissent inRiggs, after all, is not that themajority ismistaken because infact most judges do not apply the counterfactual intention test fa vored by theRiggs majority. It is,rather,that theplain meaning of the
statute controls examples of theoretical disagreement. The claim of the empirical or "head count" dispute: namely, a dispute about what
of Recognition,
on Hart's
view,
is a social
rule, meaning
its
Dworkin's
ness to override thewill of the legislature.39 Judges engaged inDwor

kinian theoretical the authoritative
disposition
of the case,
and
it is not
the court's
busi
them to do in particular cases; they are not engaged in an empirical

Perhaps, as Mark Greenberg suggested tome, the chief justice's first response would be, we replied, "Yes, we agree it is the high is the highest law." But then if the Constitution est law, but so what? Why invalidate lower laws just because they are contradicted by the highest in the text. law?" At some point, we would elicit a version of the (perplexed) reply I described 38 A more Chief Justice Roy Moore, involves former Alabama striking, recent example who refused to comply with a federal court's order that theAlabama Supreme Court's display of "Because the Ten Commandments Judicial violated the Establishment Clause and should be removed. See Moore 891 S2d 848,852-53 (Ala 2004). His refusal to recog of Alabama, Inquiry Commission nize the legal validity of that higher court's decision resulted in his being removed from office by a state judicial ethics commission. their See id at 854. Other legal officials, in short, manifested in the United from an internal point of view that part of the Rule of Recognition acceptance States requires lower courts to abide by the decisions of higher courts, and they did so by (se in the rule. for his divergence from the normal practice embodied verely) sanctioning Moore 39 I will return to the details of what the judges actually said inRiggs in Part IV. 37
are disagreeing about the meaning of disagreements sources of law, and thus about what the law requires
2009]
resolve disputes.
Explaining
1223
or dispute about how theircolleagues on thebench typically generally So the positivist theory fails to explain theoretical disagreement in the following precise sense: it fails to explain what I will call the
Value" character of the disagreement, that is, what it appears
"Face
the judges are disputingwhen we take at Face Value what theyactual write and publish.40 ly say in the opinions they They write as //thereis a fact of thematter about what the law is,even though theydisagree about the criteria that fixwhat the law is.The positivist explanation
for this "disagreement" agreeing about. cannot vindicate what it appears they are dis
Value
The particular character of the explanatory failingbears empha sizing precisely because there are multiple contexts inwhich theFace
character tion. Sigmund Freud's of a phenomenon Rat Man,41 is not what cries out to take an extreme for explana case, can give
elaborate explanations forwhy he must purge all the fat from his body, but Freud's account explains away the Face Value of what he says: it shows thathe is obsessed with getting rid of his body fat (Dick inGerman) not because theRat Man has any interest in being slim, but because of a repressed wish to get rid of (that is,kill) his cousin
Dick, his the Rat Man's
there is a failingof Freud's account it surely is not that it fails to take

statements at Face Value: itwould be, rather, that it has
competitor
for the affections
of
the woman
he
loves.42 If
identified the wrong causal and psychological mechanism by which theRat Man became consciously obsessed with losingweight.
The Rat Man case
sciously articulated reasons he gives for wanting to purge the fat from his body cannot figure in any remotelyplausible reconstructionof his motives: the reasons are bad; theydo not rationally support his obses sion; and theycannot be intelligiblyintegrated into a general account
of his actions of the Rat Man taken as his real reasons. Matters are not so are, in short, not plausibly of theoretical stark, by contrast, in the case of Dworkin's examples and motivations. The Face Value reasons
is extreme,
however,
in the sense
that the con
We might think that taking those disagreements at Face disagreement.

40 As
common
Sigmund Freud 151,188-89 42 Id at 189.
Jane Stapleton is silent on the many cases where correctly reminds me, Dworkin law judges explicitly (that is, at Face Value) law and weighing acknowledge making of policy. That fact already considerably considerations reduces the universe of cases for which the Dworkinian theory purportedly has the better explanation. 41 See Neurosis Sigmund Freud, Notes upon a Case of Obsessional (originally published Works of 1909), in James Strachey, ed, 10 The Standard Edition of the Complete Psychological (Hogarth 1955) (James Strachey, trans).
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Value iswarranted precisely because it seems possible to reconstruct

them as rational someone
two candidate Face Value
So how do positivists explain theoretical disagreement? There are

explanations, neither of which attempts to vindicate the
on their own disagreements to Dworkin's complaint sympathetic
terms. Or
so, in any case,
must
argue.
to positivists, either theoretical disagreement.43 According are disingenuous, in the sense that the parties, con disagreements are really trying to change the law?parties sciously or unconsciously, to a theoretical it, "what
puts
the grounds of law are, and thus what but they are mista the law is, in the context of their disagreement, in truth there is no fact of the matter about the grounds ken, because there is no convergent of law in this instance precisely because prac about what
retical disagreements are simply in error: theyhonestly think there is a

fact of the matter
about law are trying to say, as Dworkin disagreement it should be" not "what the law is."44 Or parties to theo
tice of behavior among officials constituting a Rule of Recognition on this point.45 Call the firstpossibility the "Disingenuity" account
and the second the "Error Theory" account. as Notice cannot there be disingenuous such in arguing The
nuity account presupposes

is no
the truthof the Error Theory: a judge

if there were a clear criterion
that the Disinge
of legal validity operative in a dispute without knowing that, in fact,

criterion. Error
attributes a pure mistake to the parties: theygenuinely think there is a right legal answer about the applicable criteria of legal validity, even though there is no convergent practice (no social rule) sup
porting mistake
law.
Theory
account,
by contrast,
such
an answer.
On
the parties to the dispute know, at some level, that itwould be a

to genuinely believe there is a right answer as a matter of
the Disingenuity
account,
by contrast,
more
The Disingenuity account can be put in terms that are either

or less accusatory. In the harsher version, the Disingenuity ac
count claims that judges engaging in theoretical disagreements know

of the the Face Value do not try to vindicate precisely, the positivist accounts for theoretical disagreement do not rely on in the sense that positivist explanations disagreement Yet this latter assumption that there is a fact of the matter about what the law is. the assumption 43 More
is one that is either explicit or can be reasonably imputed to the parties based on the Face Value of their disagreement. 44 Dworkin, Law's Empire at 7 (cited in note 3). 45 Dworkin he says that positivists "say puts this second possibility somewhat misleadingly: is an illusion, that lawyers and judges all actually agree about the that theoretical disagreement is a kind of of law." Id at 7. It is true that on this second account, theoretical disagreement illusion, but nothing requires the positivist to claim in addition that lawyers and judges all actually agree about the grounds of law. If they did, then they would not think they were disagreeing!
grounds
2009]
Explaining
1225
fullwell (that is,consciously) that there is no "law" to be found, that the issue is verymuch up for grabs, and that theirpurportedly theo retical disagreement about what the law requires is nothing more than rhetorical posturing designed to facilitate acquiescence to their
preferred conscious
genuity account claims only that judges have an unconscious or pre

awareness that there is no "law" to be found?that is, un
quasi-legislative
outcome.
In the milder
version,
the Disin
der optimal conditions for rational reflection theywould be able to acknowledge that there is no binding criterion of legal validity in the
case at hand.
come at least occurrently, to believe, that there is a dispute,46 they that favors their right answer as a matter of law, and it is an answer view of the case.
emotional influenceson human decisionmaking in the heat of a legal
But,
because
of the various
familiar
psychological
and
Error Theories are familiar inmany areas of philosophical in quiry, from ethics47to the philosophy of mathematics.48 In all cases, they are motivated by the need to reconcile some part of our thinking and discourse with what we take to be well-established theories about
what
that if therewere ethical properties, theywould have the extraordi nary feature of constituting categorical imperatives for action for those who acquired knowledge of them.50 Since nowhere else in our picture of theworld and its component parts do we find any evidence of properties with such remarkable action-guiding powers, it seems incredible that they should exist in the ethical case. Mackie's conclu sion is that ethical judgments?judgments that systematicallyascribe
such action-guiding
there is.49 So, for example,
in the case of ethics, J.L. Mackie
argues
discourse
A standing puzzle about Error Theoretic accounts iswhy a par ticular discourse persists when all its judgments are false. Religious
less invites Error case of an ongoing is our paradigm Theoretic treatment, since discourse that nonethe its persistence (notwith
properties
to states of affairs?are
all in error.51
46 How
account Posner's is illuminating in this regard. See Richard A. Posner, Judge Richard Judges Think 105-07 (Harvard 2008). 47 See, for example, J.L.Mackie, Ethics: Inventing Right and Wrong 35 (Penguin 1977). 48 See, for example, Hartry H. Field, Science without Numbers: Defence of Nominalism
are, strictly speaking, semantic theories, that is, theories to the effect that or judgments are (for example, about ethical or mathematical properties) fail to refer because the prop genuinely referential, and thus truth-evaluable, yet systematically erties in question do not exist. In the text, I prescind from the particulars of the semantic account, certain expressions since I do not see them as at issue inDworkin's 50 Mackie, Ethics at 33 (cited in note 47). 51 Id at 35. critique of positivism.
1-2 (Princeton 1980). 49 Error Theories
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satisfactions chological ismore moral discourse coordinate and
standing its systematic falsity) seems explicable by the powerful psy

it affords sincere complicated, social interactions, since have
case of participants.52 The serves to it also obviously which led many phi
attitudes that help shape social interaction.53 expressing Theoretical about law present a special disagreements
Mackie's picture ofwhat there is to conclude losophers sympathetic to that ethical talk should be construed noncognitively instead, that is,as
case, pre
regulate
cisely because the range of claims towhich theError Theory applies is rather limited within the total scope of disputes one might have about law. It is one thingto say thatall mathematical judgments or all ethical judgments are false; it is quite another to say thatall judgments about a thegrounds of law in theabsence of a social rule constituting Rule of
are false. After all, the latter class of judgments represents
Recognition
about law represent only a mi importantly, theoretical disagreements rendered about law, since most judg niscule fraction of all judgments ments about law involve agreement, not disagreement. This bears em
only a fraction of the disagreements lawyers and judges have. More
phasizing, given themysterious centrality assigned theoretical disa greements byDworkin inhis later theoryof law. One may thinkof the universe of legal questions requiring judg ment as a pyramid,with the very pinnacle of the structurecaptured by the judgments of thehighest court of appeal (where,one may suppose, base represented by all those possible legal disputes that enter a law
yer's office. This is, of course, is, admittedly, a very strange-looking reason pyramid, the legal system of a mod theoretical disagreements in Dworkin's sense are rampant), and the as the
ratio of the base to thepinnacle is something like a million to one.54It

familiar that the main
ern society does not collapse under theweight of disputes is precisely

52 For a more account of the motivations for religious belief, see Friedrich complex 66-71 (Cambridge Nietzsche, On the Genealogy 1994) (Carol Diethe, trans). See also ofMorality on Morality account is also 235-44 Brian Leiter, Nietzsche (Routledge 2002). But Nietzsche's treatment of religious discourse. quite compatible with the Error Theoretic 53 The classic treatment of moral discourse isAllan Gibbard, contemporary noncognitivist Wise Choices, Apt Feelings: A Theory of Normative Judgment (Harvard 1990). 54 Consider Administrative Office of the US Courts, Statistical Tables for the Federal Judi (vi ciary 37 table C-4 (Dec 2007), online at http://www.uscourts.gov/stats/dec07/C04Dec07.pdf
sited Sept 1, 2009) (reporting that out of 236,256 cases in 2007, 53,581 were resolved without Office of the US court action, and only 9,858 were resolved by the court at trial); Administrative Indicators: 12-month Periods Ending March 31,1998, 2003, 2006, and Courts, Judicial Case Load at http://www.uscourts.gov/caseload2007/front/IndicatorsMar07.pdf online 2007 2007), (Mar cases were terminated (visited Sept 1, 2009) (reporting that in 2007, 254,850 court system and that only 60,668 appeals were filed in the US court of appeals in the US system).
district
2009]
than the lawyer's
Explaining
1227
thatmost cases that are presented to lawyers never go any further most cases that result in litigationsettle by the in formal litigation;that most cases thatgo to trialand verdict do not get end of discovery; that most cases thatget appealed do not get appealed to and that appealed; the highest court, that is, to the courtwhere theoretical disagreements are quite likelyrampant. Why the preceding is true is familiar to anyone knowledgeable
about law and office; that most cases that lawyers take do not result
It about the law throughout the system.55 is precisely because just

about
litigation:
there
is massive
and pervasive can
agreement
pective clientswho wander through the doors that theyhave no claim and should go home; it isprecisely because just about everyone agrees most cases settle after discovery, since by then the about the law that facts are clear and both sides know what the legally required result will be (and so the only question is putting a price tag on the resolu tion); it is precisely because just about everyone agrees about the law
that most cases
everyone
agrees
about
the law that lawyers
tell most
pros
ment
variety of strategic and other considerations thatmay explain why some parties litigate and appeal verdicts quite independent of agree
about the law; but if there were not massive convergence about
are not appealed;
and
so on. To
be
sure, there are a
what the law is,we should expect the universe of legal cases to look less like a pyramid and more like a lopsided square, whose base was
perhaps somewhat bigger than its top.56
55 The indeterminacy Schauer, Easy
point was made by the Critical Cases,
in the jurisprudential Legal Studies writers 58 S Cal L Rev 399, 429-30
Legal Theory 481,488 (1995); Ken Kress, Legal a similar point against Dworkin, There is a certain irony in now needing to reemphasize the true in global believer The difficulty, of course, is that Dworkin's belief in the legal determinacy! determinacy
literature against reckless claims about legal a generation ago. See, for example, Frederick 1 (1995); Brian Leiter, Legal Indeterminacy, Indeterminacy, 11 Cal L Rev 283, 296-97 (1989).
reasons proceed with litigation. Second, even where the law is not clear, pretrial rulings may "clari that parties can calculate what they are fy" it?at least for purposes of the dispute at hand?such willing to pay given what juries are likely to believe about the facts. Third, and finally, criminal defendants reasons for appeal, even in the face of relative clarity about compelling the facts, than others, and so their rate of appeal would not count against the hypo thesis that there ismassive agreement about the law. the law and have more
to me three other important scena has emphasized legal system. My colleague Adam Muchmore rios, though ones consistent with the basic hypothesis about massive agreement about the law. First, to give them large law firms are less likely to tell their corporate clients to "go home," as opposed odds on their chances of success?and corporate clients, even with low odds, may for all kinds of
one?were of legal reasoning is only a metaphysical it thesis, not an epistemological then there would be no room, of course, for theoretical disagreement. epistemological, 56 I the complexity of considerations that influence parties in a modern simplify, unavoidably,
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One of the great theoretical virtues of legal positivism as a theory of law is that it explains why the universe of legal cases looks like a
pyramid?precisely legal agreement. because it explains
so often because, in a functioninglegal system, what the law is is fixedby a discernible practice of officials who decide questions of legal validity reference to criteria of legal validity on which they recognizably by converge. Only as we approach the pinnacle of the pyramid do we
approach the "law" those cases where is up for grabs. ef the cases where the law is not clear, and so fect"57 in favor of appealing and thus room for disagreement, judges have room for theoretical siding with the appellants' version of the case. the practice of officials breaks down, there is an obvious "selection Indeed, and
Legal
professionals
the pervasive agree about what
of phenomenon the law requires
Law's
When we put thephenomenon of theoretical disagreement in this kind of realistic perspective, the oddity ofDworkin's dialectical tact in
would have us focus on the becomes Empire apparent. Dworkin a theory that explains it? of the pyramid, and construct pinnacle at the pinnacle in the sense of taking discourse it,moreover, explains
at Face Value! That legal positivismmakes happy sense of the over whelmingmajority of legal phenomena appears to count fornaught.58 were measured by Itwould be as if the adequacy of a theoryof gravity with the expansion of theuniverse rather thanwith its itscomportment ability to predict the observable behavior ofmidsize physical objects as
they fall to earth, or the movement must concede sure, we law?not
But perhaps thisway of framingthe dispute is too facile.59 be To

the obvious: the norm massive agreement about inmodern
of the planets,
and so on.
the
legal systems. But this disagreement?is a Dworkinian agreement, apparent might assert, belies a deeper disa theor about the law itself. Perhaps "plain meaning" greement: namely, end up agreeing the about intentionalists" ists and "counterfactual resolution and of most cases. the counterfactual that is just because intention converge most But the plain meaning of the time, and so
57 Leiter, 1 Legal Theory at 490-91 (cited in note 55). 58 A defender of Dworkin's are not view might say that even if theoretical disagreements are qualitatively to a legal system since, for example, they arise in cases frequent, they important where the courts must license the exercise of the coercive power of the state, as well as in cases that attract subject
that are the of their overlap with ethical matters attention because considerable of public controversy. Of course, no legal positivist accepts the idea that a general juri or sprudence must explain how the exercise of coercive power by the courts is generally justified are a central datum to which a theory the idea that cases that attract attention in the newspapers for theoretical disagreement of law must answer. To be sure, the positivist explanations explain such cases, though not in terms congenial 59 Here I benefited from discussions to Dworkin's with Mark theory. Greenberg.
2009]
Explaining
1229
lawyers and juristswho would otherwise have a theoretical disagree ment about the real grounds of law avoid such disagreements simply
because
This is,I suppose, a possibility,but the first question to raise about it is evidential:namely,what reason is there to suppose that this is the actual state of affairs?Certainly from the standpoint of Dworkinian
earnestness about the Face Value
their competing theories of statutory or constitutional ing yield the same result in so many cases.60
mean
port for this supposition: agreement is agreement, and surely one only someone presupposing the truthof Dworkin's view might think,
would
of legal discourse,
there
is no
sup
disagreements lurkingin thebackground. On the other hand, one might argue that since apparent theoreti
cal disagreements?for example, between plain meaning counterfactual intention theorists?do emerge explicitly theorists and in other con
impute
to these
agreements
abstract,
and
hidden,
theoretical
ble
texts (for example, towards the pinnacle of the pyramid), it is reasona
not explicitly articulated. Let us call this the "Consistency Supposi tion"?namely, the supposition that those juristswho will mount an explicit theoretical disagreement about the law (based on some theory of legalmeaning), in some cases likeRiggs orHill, may be supposed to operate with the same theory of legal meaning even in those cases
among all parties. seems unwarranted the Consistency Unfortunately, Supposition evidence of what courts do, at least inAmerica.61 by any Judges and that elicit agreement
to suppose that these same views about the meaning of authorita tive legal sources inform lower-level agreements about the law, even if
especially lawyers tend to be opportunisticwhen it comes to theirap

to the meaning of authoritative sources in contested cases,
proach
made byKarl Llewellyn inhis article on the canons of point famously

To be clear, mere silence does not show there is no theoretical disagreement: the parties a theoretical disagreement if they have conflicting beliefs about the grounds of law, wheth er those are clearly expressed. But, of course, what the parties say will be our evidence for imput of explicit disagreement creates a serious ing such conflicting beliefs to them, so the absence evidential problem for the claim issue in this Part. 61 Since Dworkin's central that there is a genuine theoretical disagreement. I take up that 60
have
context,
context. See, for example, Interpretation the theoretical disagreement familiar in the American is that as we Act, Rev Stat Brit Colum, ch 238 (1996). One possibility that needs to be considered move up the pyramid of cases in the US legal system, there is simply less and less law and more and more lawmaking?more so, perhaps, than in those legal systems with judiciaries more discip lined by binding rules of interpretation.
are drawn from the US of theoretical disagreement examples I am going to focus on the American the legal system, which, arguably, will present view. It isworth noting, of course, that inmany legal systems, among strongest case forDworkin's rules binding on officials are rules of interpretation, which eliminate much of the authoritative
1230
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[76:1215
Bobbitt tional
way by Philip statutory interpretation, and confirmed in a different

in his well-known and of constitu study of the six "modalities" where Bobbitt found none of the interpretation,
argument six approaches dominated the others.63 Moreover, when eminent jur on appellate what Dworkin ists?even those would courts?profess these turn out to have little impact on call theoretical disagreements, the actual pear, as outcomes of the cases.64 The epiphenomenal approach would with mundane it were, to be ap disagreements to the process of decision, have us treat them as nonethe legal practice?the ordinary theoretical
though the Face Value less central. Someone familiar
most ofwhich do not lead to litigation? problems and issues thatarise, might reasonably conclude that if there is a governing rule of interpre
tation at work except when
tive opportunism takes hold."63 Bearing inmind that the universe of
in law, it is something like "ordinary meaning its import is absurd or repugnant, at which point
controls, interpre
62 Karl . and theRules or Canons Llewellyn, Remarks on the Theory of Appellate Decision about How Statutes Are to Be Construed, 3 Vand L Rev 395,398 (1950). 63 93-94 (Oxford 1982) (ex Fate: Theory of the Constitution Philip Bobbitt, Constitutional that judges often use the six modalities?the historical, textual, doctrinal, prudential, plaining structural, and ethical arguments?in combination). 64 See Daniel A. F?rber, Do Theories of Statutory Interpretation Matter? A Case Study, 94 Nw U L Rev 1409, 1410 (2000). F?rber examined statutory interpretation decisions by Judges Richard leading Posner theoretical
of the Seventh Circuit, noting that "[i]n terms of their and Frank Easterbrook and Easterbrook (a (a leading pragmatist) writings about interpretation, Posner textualist) are as far apart as two judges could be." Id at 1409. Yet F?rber found that
the cases inwhich Posner and Easterbrook disagree also provide a test of how closely theories tomy surprise, I have concluded that the of interpretation are linked to outcomes. Somewhat are as serious about legal theory (and certainly effect is quite limited. Posner and Easterbrook as capable of theoretical analysis) as any two judges we are ever likely to see. Their theories of interpretation are sharply opposed. these theoretical differences seem in detail, however, In the four opinions that I examine had only a marginal relationship with outcomes. are somewhat less likely to dissent from and Easterbrook to have
it turns out that Posner Moreover, each other's opinions than is typical for judges on their court, the Seventh Circuit. There
is, in short, a resounding absence of evidence that these judges' sharp theoretical differ ence has any substantial effects on their judicial votes. This means either that their theoretical difference does not matter or that it is precisely offset by their similarities in other respects. in the vast majority of the cas Like other federal appellate judges, they agree on the outcome es on which they sit.At the very least, it seems fair to say, the differences in their work judges are dramatically smaller than the differences in their jurisprudential writings. see Holy
as
Id at 1410-11. See also Posner, How Judges Think at 346 (cited in note 46). 65 For the classic to avoid absurdity, example of statutory construction United States, 143 US 457,460-61 (1892): If a literal construction to avoid the absurdity.... of the words [T]he Bolognian
Trinity as in
of a statute be absurd, the act must be so construed law which enacted "that whoever drew blood
2009] Explaining
1231
render most ments.
At legal cases is a pyramid, this should hardly be surprising. the base of thepyramid,ordinary language and ordinary hold sway, which, meaning togetherwith the convergence of officials on criteria of legal validity,
cases clear as we move and produce massive in legal judg agreement the pyramid?either because up parties are or because the clear legal doc considerations or repugnant results?does become more and more disagreement to Dworkin's Consistency Supposition?which to absurd
Only motivated by strategic to the facts leads trine as applied what Dworkin common. calls theoretical In opposition
is supposed to show that theoretical disagreement, though rarely ap parent, is in fact (latently) omnipresent?we might propose what I call the "PlainMeaning Default Supposition," according towhich ordinary meaning (or stipulated technicalmeaning by reference, for example, to statutory with the criteria preambles or contractual terms), together of legal validity,gives us the content of law,except in a narrow range of
cases.66 If itwere otherwise, we should expect almost every legal ques
opened Peter Cane
the streets should be punished with the utmost severity,' did not extend the vein of a person that fell down in the street in a fit."
to the surgeon who
law jurisdictions there is a related rule for cases of suggests to me that in common if the plain meaning is ambiguous, then consult the purpose. See William Blackstone, ambiguity: on the Laws of England 1 Commentaries *58-62 (Chicago 1979). 66 Theoretical is also possible, of course, about case law: what it means, which disagreement case is controlling, and so on. If there is an analogue to the Plain Meaning Default in Supposition this context, First, itwould be something like what Hart said about precedent: there is no single method of determining the rule for which a given authoritative is an authority. Notwithstanding this, in the vast majority of decided cases there is precedent is usually correct enough. Secondly, there is no authoritative very little doubt. The head-note or uniquely correct formulation of any rule to be extracted from cases. On the other hand, there is often very general agreement, when the bearing of a precedent on a later case is in is status a rule ex authoritative sue, that a given formulation is adequate. Thirdly, whatever by it of... case may
not required by any rule established by statute or earlier precedent_Notwithstanding these two forms of legislative activity, left open by the binding force of precedent, the result of the English system of precedent has been to produce, by its use, a body of rules of which number, of both major and minor importance, are as determinate as any statutory rule. a vast
to it not before considered, or, if consi from the precedent, and admitting some exception the other hand, in following an earlier precedent the courts may dis dered, left open_On card a restriction found in the rule as formulated from the earlier case, on the ground that it is
tracted from precedent may have, it is compatible with the exercise by courts that are bound two types of creative or legislative activity. On the one hand, courts deciding a later reach an opposite decision to that in a precedent by narrowing the rule extracted
Hart, The Concept of Law at 134-35 (cited in note 31). Even though, as I have argued, this is not an adequate in appellate cases (towards the response to the Realist arguments for indeterminacy pinnacle of the pyramid, as itwere), see Brian Leiter, Legal Realism and Legal Positivism Recon
in sidered, in Leiter, Naturalizing 59, 74-79 (cited in note 2), originally published Jurisprudence 111 Ethics 278 (2001), this seems wholly apt for describing, even in the American system, how case law functions on the vast majority of occasions when legal judgments are required?hence
1232
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[76:1215
course, they do not. If the Plain Meaning
tion that arises to look like the disputes inRiggs and Hill, when, of
Default Supposition is correct as a characte
Error Theory of theoretical disagreements does not claim that legal discourse is systematically mistaken, only that it falls into error at the of the pyramid.That should hardly be surprising, pinnacle given that
the mistake involved
treatments of, for example, moral that afflict Error Theory puzzles discourse. The latter, recall, face the burden of explaining why a dis course that is systematically the mistaken nonetheless persists. But
rization of one part of theRule of Recognition, thenError Theory treatments of theoretical disagreements will not raise the kinds of
misunderstanding the conditions of the possibility of legal validity itself?and the opportunities for themistake arise only in a miniscule
range of cases. quire a degree have no reason
is a fairly abstract
and
theoretical
mistake?
tice are hardly surprising,especially when avoiding themwould re

of reflective theoretical awareness
Systematic
mistakes
at the margins
of any social
prac
non in question? That is the key question, and the answer to it will de
termine the success of Dworkin's pire. But before we can adequately revisit his central examples.
cal disagreement: the Disingenuity count. Why are these explanations
So the positivisthas two straightforward explanations of theoreti

account and the Error not wholly adequate ac Theory to the phenome
to acquire.
that practitioners
strategy in Law's Em argumentative that question, we need to address
III. The Face Value
of Riggs and Hill
Revisited
IfDworkin's account has anything to commend it, it is supposed to be that it does justice to the Face Value of theoretical disagree ments. But does it? Attention towhat the judges were really saying in Riggs andHill casts some doubt on thisclaim. On Dworkin's view, the judges inRiggs are disagreeing, as Shapi
ro puts it, about "the proper method for interpreting the law,"6 ?that the literal reading of the statute or the counterfac about whether is, such a is a sense in which tual intention theory is controlling. There
disagreementmight be imputed to the judges, but there is no sense in which that disagreement is central to the Face Value of themajority
and dissenting
the massive
opinions.
about
Neither
opinion
I have 1).
engages
already alluded.
the "method
See notes
of in
and ac
agreement
the law, to which at 35 (cited in note
54-55
text. companying 67 Shapiro, Short Guide
2009] Explaining
1233
terpretation" employed by the other opinion, let alone assesses its

validity or merits?let alone
are familiar to lawyers, ifnot to thosemotivated by antecedent juri

sprudential fashion axes to grind. opinions
interpretation.
The Riggs
of argues for its own preferred method are farmore mundane, in ways that opinions
The majority opinion inRiggs iswritten in the classic "shotgun"

of many and lawyers' briefs: canvass all possible ar
guments in support of a position, repeat them for emphasis, and present them all without any regard for how they actually hang to gether as a coherent, principled position. The majority concedes that
the statute nowhere
but simply proclaims that themajority is "unwilling to assent to the doctrine of that [earlier] case."69)But then it makes two differentar that "a thing which iswithin the [counterfactual] inten guments: first, tion of themakers of a statute is as much within the statute as if it
were within the letter";70 and second,
"literally construed" noted by Dworkin?that
favors Elmer.68 (It even concedes? case law supports Elmer's position,
may be controlled in [b]esides, all laws, as well as all contracts, theiroperation and effectby general, fundamentalmaxims of the common law.No one shall be permitted to profit by his own are dictated by public policy, have their foundation in universal
law administered superseded in all civilized countries, about and have nowhere been The by statutes.71 is an argument statutory interpretation, fraud, or to take advantage of his own wrong .... These maxims
which invokeswhat we have been calling the counterfactual intention theoryof themeaning of a statute.The second simply abandons the
would
first argument
ment to the effect that there is a binding legal principlewhich trumps years ago inhis firstsystematiccritique of phasized byDworkin thirty Hart in The Model of Rules 7,3whereas inLaw's Empire he calls at
68 69 70 Riggs, 22 NE Id at 190-91 at 189.
first argument?hence the "besides," in the lawyers' which, a natural have been "in the alternative"?for law-style the statute and precludes inheritance by Elmer.72 It is worth noting that the second argument was
brief, argu
the only one
em
disagreements, to be sure; my point here is only that in Law's Empire, Dworkin 73 The Model Dworkin, of Rules I at 23 (cited in note 11).
Owens, 6 SE 794 (NC 1888)). (declining to follow Owens Riggs, 22 NE at 189. 71 Id at 190 (emphasis added). 72 What I am calling the "natural law" argument could ground different kinds of theoretical does not so utilize it.
1234
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[76:1215
tention only to the first,the counterfactual intention argument. (So much for taking the opinion at Face Value!) But there is an obvious
reason for Dworkin's selective attention to the actual
that the earlier objection to positivism that it could not accommodate

"principles" like "no one shall be to . . . take to one based on theoretical
opinion,
namely,
grounds from this objection which is our focus here.
advantage permitted 4 his own wrong" was decisively met,75 requiring Dworkin to shift disagreement,
of
mer
In its first"shotgun blast," theRiggs majority hammers home the idea that the legislature never could have intended someone likeEl
to inherit. The court says, variously:
[I]t never could have been [the legislature's] intention that a do nee who murdered the testator tomake thewill operative should
have any benefit under it.76 If the lawmakers could, as to this case, be consulted, should pass would had they tak
say that they intended by theirgeneral language that the proper en his lifefor the express purpose of gettinghis property?
What could be more unreasonable than to suppose ty of a testator or of an ancestor to one who
that it was
the legislative intention in the general laws passed for theorderly, peacable, and just devolution of property that they should have might speedily come into thepossession of his estate? Such an in
tention is inconceivable.78 operation in favor of one who murdered his ancestor that he
This legislative intention,though, is easily conceivable, as long as we frame it at the right level of generality:not as the intention to letEl mer benefit from his wrongdoing but as the intention tomake it a to matter of clear "public policy" (as the dissent puts it79) enforcewills
in accord with the intent of their makers?even rhetorical overkill those
foolishly,leave property to theirnascently felonious descendants! The

majority's repetitious, tual intention theory on behalf of the counterfac is, perhaps, indicative of awareness that the ar
testators who,
74 75 dence 76 77 78 79
Riggs, 22 NE at 190. theHart/Dworkin See Leiter, Beyond at 155-58 (cited in note 2). Riggs, 22 NE Id. Id at 190. Id at 192 (Gray dissenting). at 189.
Debate,
reprinted
in Leiter, Naturalizing
Jurispru
2009] Explaining
1235
gument has problems. That impression is confirmed by the way in which the majority abruptly abandons the counterfactual intention
the remarkable "besides" argument?with favor of the natural law argument. to consider the counterfactual passage quoted above?in
Even more strikingis the dissenting opinion,which does not even

intention theory, let alone re
deign
which have been spond to it! "We are bound by the rigid rules of law, established by the legislature,and within the limitsof which the de
termination
wills may be made, altered, the exercise of an equitable case, the equities are not
since the legislature has clearly "prescribed exactly when and how
and revoked," there is "left no room jurisdiction by courts over such matters."82 seems
of this question
is confined,"
the dissent
announces.81 And
for
Since the law is clear, there is no call for a judgment of equity; in any suggest in the following three representativeobservations: [T]he demands of public policy are satisfiedby the proper execu tion of the laws and thepunishment of the crime.83 Practically the court is asked [by the plaintiffs] tomake another
for the testator.84 entirely clear?or so the dissent to
will
The law has punished [Elmer] forhis crime, and we may not say
that itwas an insufficient punishment.85
From the standpoint of an equitable remedy,permitting the inherit

ance has
want courts rewriting wills and Elmer is already in jail for his crime: how could itbe equitable for the court to substitute itsown version of thewill for the testator'sor to deem Elmer's punishment insufficient?
The merits of the dissent's "what
as strong a claim
as the alternative.
The
legislature
does
not
What is strikingis that the dissent is not, at Face Value, having a disa
greement about the statute required when properly
arguments
do not
really
concern
us.
read."86 To Its post
would be to disagree about competing readings of disagree about that ure is far closer to what I earlier called the Plain Meaning Default
80 The historical context of the in Part IV, confirms this worry. decision, discussed 81 Riggs, 22 NE at 191 (Gray dissenting). 82 Id rules that were meant (noting that the court could not ignore the legislature's provide safeguards for "grave and important acts"). 83 Id at 192. 84 Id. This second observation is in tension with tions of testators as written. 85 Riggs, 22 NE at 193. 86 Compare Dworkin, Law's the public policy of enforcing
the statute; but there is none
of that in the dissent's
opinion.
to
the inten
Empire
at 16 (cited
in note 3).
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[76:1215
Supposition: the statute is clear and the result is not absurd or outra only question is one of the equities?not
theories of statutory meaning. is even more Hill, on examination, geous, all things considered. Since the statute's meaning is plain,
the
of themerits of competing
by
Hill majority in an Dworkin.87Recall thaton Dworkin's rendering,the Warren Burger, though giving a nod to the opinion by Chief Justice
relevance
clearly mischaracterized
contrast, thought that the statute must be read so as to "accord[] with some modicum of common sense and the public weal,"89 which Dworkin as meaning "that the courts should accept an absurd result only glosses
clear theCourt has no rightto refuse to apply it just because itbelieves The the results silly."88 dissent, in an opinion by JusticeLewis Powell, by
of legislative
intention,
took
the view
"that when
the text is
was intended."90 fact, it seems In if theyfindcompelling evidence that it more plausible to construeChief JusticeBurger and JusticePowell far as having an empirical disagreement about a criterionof legal validity they both accept, namely, that the intentionof Congress controls the
interpretation of the statute. Their dispute concerns the intention of
Congress and not the criterionof legal validity. The majority opinion by Chief JusticeBurger spends some time rehearsing in detail the various versions of the Endangered Species Act and theobjections registered against each one, before concluding: The plain intentof Congress in enacting this statutewas to halt
and reverse the trend towards
veals
cost.This is reflectednot only in the stated policies of the Act, but in literallyevery section of the statute_In addition, the legisla tive history undergirding [the pertinent section of theAct] re
an explicit congressional decision to require agencies to af
species
extinction,
whatever
the
ford first priority to the declared national policy of saving endan gered species.The pointed omission of the typeof qualifying lan guage previously included in endangered species legislation re
is also usefully contrasted with the more realistic account of Hill by on a study of Justice Harry Blackmun's Lazarus, papers. See Richard Human Nature, the Laws of Nature, and theNature of Environmental Law, 24 Va Envir L J 231, 255 (2005) (indicating that both the majority and dissent were concerned with the policy implica account Richard Lazarus, based tions of upholding the injunction). 88 Dworkin, Law's Empire at 21 (cited in note 3). 89 Hill, 437 US at 196 (Powell dissenting). 90 Dworkin, Law's Empire at 23 (cited in note 3).
87 Dworkin's
2009] Explaining
1237
veals a conscious decision by Congress to give endangered spe

cies priority over Dworkin the "primary missions" Chief of federal agencies.91 assertion as Although characterizes Justice Burger's
indicating"thatwhen the text is clear theCourt has no right to refuse Dworkin fails to to apply it just because itbelieves the results silly,"92 appreciate fullythatboth before and after thisdeclaration, themajori tyopinion engages in an extensive consideration of the possible inten
tion of Congress, to protect and does
Moreover, Burger explicitlydeems the congressional intentto be ing."

the cost,"93 which endangered species "whatever as well. counterfactual possibilities not know from reading Dworkin's plainly en
not rest its opinion
solely on "plain mean
compasses One would
account
that the
dissenting opinion agrees with the majority's understanding of the relevant criterion of legal validity! JusticePowell, writing for the dis
sent, says that he cannot the "absurd
Act to produce believe thatCongress could have intended this

result"?in the words of the District Court?of
this
were clear from the language of the case. If it Act and its legisla tive history thatCongress intended to authorize this result, this Court would be compelled to enforce it. It is not our province to rectifypolicy or political judgments by the Legislative Branch, however egregiously they may disserve thepublic interest.94 So themajority and dissent, in fact,accept the same criterion of legal validity: the statute and the intentof Congress are controlling,and if Congress intended an absurd result, it is not for theCourt to undo it.
about disagreement the evidence
Their
ble.When Dworkin says that "ifwe take the opinions of these two justices at face value, theydid not disagree about any historicalmat ters of fact,"9he exactlymisstates what a fair reading of the opinions
shows them
terms, purely empirical, namely, is, in Dworkin's intent, actual and possi bearing on congressional
facts about
intentionsof Congress as evidenced by the legislative history and the

the words Congress chose to enact.
to be disagreeing
about,
namely,
the actual
and possible
91 92
437 US at 184,185. Dworkin, Law's Empire at 21 (cited 93 Hill, 437 US at 194. 94 Id at 196 (Powell dissenting). 95 Dworkin, Law's Empire at 23 (cited Hill,
in note 3).
in note 3).
1238
Law Review
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IV. Theoretical
Virtues
and the Best Explanation

Disagreement
Theoretical
Let us recall Dworkin's charges against legal positivism with re credibly,"he says, legal positivism "has no plausible theoryof theoreti
spect to the phenomenon he dubbed theoretical disagreement. "In
in law,"96 and that, in consequence, "dis cal disagreement positivism torts legal practice"97 and is "an evasion rather than a theory."98 One might be accompa might expect that such dramatic pronouncements
a good nied by at least a gesture towards articulating what constitutes or what theoretical virtues are at stake. Such expectations explanation Even will, alas, be disappointed. though positivism has two rather ob vious explanations disagreement?the
Dworkin himself acknowledges in passing?Dworkin spends little are not, in fact,quite "plausible" accounts of time explainingwhy they
the phenomenon
Dworkin dubs theoretical for the phenomenon accounts that and Error Theory Disingenuity
accounts
Even his defender, Shapiro, findsDworkin's objections to these

rather feeble. As Shapiro writes:
in question."
Dworkin objected to the repair argument [that is,what I have been calling theDisingenuity account] by wondering why, if the positivist is correct, the public has yet to pick up on the judicial
ruse. But simple: cials
ther ignorantof its ground rules or too intimidatedby legal offi

to challenge them.100
the explanation for such a fact?if it is indeed a fact?is are ei the law is a professional and lay persons practice
96 97 98 99
Id at 6. Id at 15. Id at 11. thinks there is a stronger
See Dworkin, Law's Empire at 37-43 (cited in note 3). 100 Shapiro, Short Guide at 42 (cited in note 1). Shapiro, however, to Dworkin. He writes: argument available One
in theoretical disa need notice only that judges are not the only ones who engage scholars do so as well. The law reviews, after all, are filled with articles ar greements?legal over another. Indeed, the guing for the legal propriety of one interpretive methodology between originalism textualism of legal theory?those and dynamism, great disputations and purposivism, cal disagreements and doctrinalism?have been precisely about theoreti in the law. Judges may have a great political interest in hiding the true na ture of their activities, but scholars generally do not. documentarianism
Id at 42-43. Put to one side the fact that academic debate about law must count as an even more for a theory of law than debates at the pinnacle of the pyramid by courts. marginal phenomenon are about the "legal debates claim here is that these academic The crucial (but unsupported) as opposed to their moral and political virtues. So, to propriety" of these interpretive methods,
2009] Explaining
1239
Dworkin's kind of argument had some merit, it Even ifone thought would stillnot sufficefor the issue at hand; for what we need to know
is what makes one
er,not simply thatone account (arguably) has some deficiencies. Borrowing a bit loosely from the philosophical literature that ex 01 amines the rationalityof belief and theorychoice in the sciences, we may tryto articulate some of the theoretical virtues or desiderata that
should lead us theoretical to prefer
explanation
of the phenomenon
better
than anoth
hopelessly derailed into the question of what an "explanation" is, I assume?unhelpfully, but hopefully with enough intuitive resonance
so as to be adequate a basic theoretical desideratum for an here?that us "understand" or "make sense" of some is that it helps explanation
disagreement
one explanation of a phenomenon?like in law?to another. In order to avoid being
nation
or "making sense" it is "understanding" data, however be cashed out. But what happens when we have more that "makes sense" explanation articulated a phenomenon: of theoretical disagreement of
to is ultimately than one expla
Dworkin's ist account Here
are three familiar
above? Why prefer one theoretical desiderata often
Say, by hypothesis, versus the positiv account to the other? thought relevant:
1.
We prefer simpler explanations tomore complex ones, Simplicity. all else being equal (that is, without cost to other theoretical desi
derata). Consilience. explanations explanations We prefer more comprehensive explanations? sense of more different kinds of things?to that make too narrowly tailored We that leave more intact to those
2.
that seem
to one kind of datum. of our oth that do not,
3.
Conservatism.
er well-confirmed derata).
prefer explanations beliefs and theories
all else being equal (that is, without cost to other theoretical desi
current, and much-noted, example, Randy Barnett argues for originalism, not on the grounds that "the law" requires it, but on the grounds that it ismorally required given a certain conception of individual rights and the constraints they impose upon morally legitimate See, for example, Randy Barnett, Scalia's Critique Infidelity: of Faint-hearted 75 U Cin L Rev 7,17-19 Originalism, (2006). The merits of the argument do not matter here; the point is that Barnett is typical of how legal scholars more generally often debate these questions, namely, not in terms of their "legal propriety" but in terms of the moral and political considera government. tions that favor or disfavor competing approaches. 101 and J.S.Ullian, The Web of Belief ch 6 (Random House 2d See, for example, W.V. Quine Criteria for Theory Choice, 75 J Phil 76 (1978); ed 1978); Paul R. Thagard, The Best Explanation: Lawrence 84 Phil Rev 374 (1975), reprinted in Lawrence Sklar, Methodological Conservatism, Sklar, Philosophy and Spacetime Physics 23 (California 1985).
take but one
1240
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The earlier objections to the Face Value explanation of theRat Man 02

illustrate the intuitive role of these considerations. I said, did "not rationally At the most basic The Rat Man's rea
and theycannot be intelligiblyintegrated into a general account of his

actions nation and motivations." to "make how failed sense"
sons for his obsession,
support
his obsession,
us to understand all the other motivations. obsession conscious same possible metric was To
it also failed along the dimension of consilience; that is, itdid not allow
the Rat Man's about obsession could evidence be values, account sure, the psychoanalytic not, at least when proffered, especially structures and their role the Rat Man's squared with goals, actions, and of the Rat Man's be conservative,
level, the Face Value expla extreme obsession, but of the Rat Man's
since it required us to revise standing folk-psychological views about

motivational it also in action. And
its psychic economy?but

between us how
token,
complicated
the desiderata
this just illustrates the tradeoffs that are

when we evaluate competing theories
the necessary
picture
by the of the mind and
and try to decide what we ought to believe. There will be no simple As we saw inPart III, Dworkin's theoryhas the immediate diffi culty that itdoes not even make sense of the actual Face Value of the
that are offered of theoretical Value point as central examples of the phenomenon in a case showing to make the trade-offs and comparisons.
question.We may put Hill to one side, since if I am correct, it is not

even disagreement. Riggs date for the Face cannot though explanation, to any actual disagreement about the merits of that as and he also now brackets approaches, even is the stronger candi here, as we saw,
decisions
Dworkin competing
pect of themajority opinion (the natural law argument as I called it) Yet thathe had made central to his account of Riggs in 1967.103 Dwor kin can fairlyclaim that the judges inRiggs do appear to have conflict ingbeliefs about the correctway to read statutes,even if they fail to engage thatconflictdirectly in theopinions. tedlyFace Value account of Riggs are in equipoise with the deficien cies of theDisingenuity or Error Theory accounts.We would still be handicapped by looking at themajority and dissenting opinions in
Riggs have of these opinions would in a vacuum, for the best explanation of consilience and con to show how they fare along dimensions In any case, let us suppose the deficiencies of Dworkin's purpor
interpretive
Rev
102 See notes 41-42. 103 Dworkin, Compare 14 (cited in note 11).
Law's
Empire
at 15-20
(cited
in note 3), with Dworkin,
35 U Chi L
2009] Explaining
1241
about
servatism: for example, how they fit with our other theoretical beliefs That thebest explanation ofRiggs isnot, in fact,theFace Value ex
law, about the behavior quite of these jurists in other cases, and so on. when we turn to an illuminating ac
count by Kim Lane Scheppele of the historical background to Riggs!04 Cases likeRiggs had not arisen previously because theyhad been dis of pensed with by the courtsusing the legal fiction "civil death," accord towhich, "[i]f a person were convicted of a serious crime, the law ing would consider the person to be civillydead, incapable of existing at And ifa person were dead to the law,then this law. would surelyaffect In the ability to inherit."105 1870,however,England passed a statute that
addressed, among of a serious crime. other things, the civil consequences 06 As Professor Scheppele explains: for conviction
planation
becomes
apparent
[A convict's] propertywas not to be forfeitedany longer?and was an importantalteration in theEnglish law?but it this would
instead
else. But
theirproperty,even though it fell under the control of someone

the statute was silent about an important matter: it did
. . . be put under the control of an administrator. Under to retain ownership this new statute, convicts were allowed of
not say explicitlywhether a convict could inheritor not. It even implied that the convict could now inherit, by referringto real come into the convict's posses and personal property that might sion afterhis conviction,which, since the convict could no longer
contract, was most tion forAmerican convicts' As Professor
ican courts that still looked toEnglish law as a source of inspira

practices property and standards, these new views a major represented change.107 about
likely to occur
through
inheritance.
For Amer
goes on to note, a year before Riggs, inAvery to consider "the had occasion Court of Appeals Everett,m statute and the issue of civil death."09 The case raised "the ques English Scheppele the New York tion of the status of a convict's
The vict could designate an heir of his choosing.111 majority, citing the
104 See Kim
property,"10
in particular, whether
a con
Lane
49-54 (1990).
Scheppele,
Facing
Facts
in Legal
Interpretation,
30 Representations
42,
105 Id at 50. 106 Id at 51-52. 107 Id at 52. i?9 Scheppele, Id. See, Avery,
ios 18NE 148 (NY 1888).

18 NE
no m
30 Representations at 150.
at 52 (cited
in note 104).
1242
Law Review
[76:1215
English statuteof 1870 (among other sources), answered thequestion in the affirmative, finding,as Professor Scheppele puts it, that a convict
"was allowed Far more
inAvery, who wished tomaintain the rule that civil death meant a convict lost his property rights?was the same judge (JudgeRobert If Earl) who wrote themajority opinion inRiggsl113 JudgeEarl's view
had in Avery, then there would have been no need for re prevailed course to the counterfactual intention of the legislature or to natural to reach the preferred result. now what we do about Knowing
to keep his property, even though he was civilly dead."112 for our purposes, however, is that the dissenter notable
law inRiggs!14But having lost in Avery, JudgeEarl needed a new way

Judge Earl's views regarding in
moves in heritance by convicts,how should we view his interpretive Should we accept them at Face Value, as reflectinghis deep Riggs?
theoretical commitments about
portunism,designed to change the law to undo the effectsofAvery at least in certain kinds of egregious cases, like those involving convicts whose crimes facilitatean inheritance?One might think there is a cer selecting the former option. Yet charity towards the innocent is no
a virtue need the Face Value We in scholarship interpretation look no farther, however, as in life, so we a bit further. should, at least, entertain than the very same volume tain unreality?a kind of na?vet? about legal practice?involved in
interpretation,
or as
interpretive
op
doubt
of
the case reporter inwhich Riggs appears to find pertinent evidence bearing on the extent towhich JudgeEarl (of theRiggs majority) and Judge JohnGray (of theRiggs dissent) were really having a theoreti
down on the very same ing interpretations. Handed have the case of Bockes Wemple,115 regarding statutory compensation cal disagreement about the merits of intentionalist versus plain mean day as Riggs, we
from suggests that a case like Riggs could have been distinguished Scheppele Avery on the grounds that "[depriving people of property they already have in their possession [at issue inAvery] is a very different matter from restricting the ways inwhich they can come by prop Id at 53-54. In that event, Judge Earl could have simply erty in the first place [at issue in Riggs]" in Riggs to "a quite straightforward view of legislative intent" since the "statute of wills appealed was undoubtedly drafted against a background where the civil death fiction was assumed to be part of the existing law," and so there was no need to explicitly address the question of inheritance by convicted murderers. Id at 59-60. The distinction suggested by Professor Scheppele might well have been marks a relevant difference between the cases against drawn, but it is far from obvious that it of a repudiation of the principle that convicts forfeit their property rights. One the background suspects that iswhy Judge Earl inRiggs opted for a different approach.
Scheppele, 113 id. 114 Professor
112
30 Representations
at 53 (cited
in note
104).
11522NE 272 (NY 1889).
2009] Explaining
1243
for retired trial court judges, inwhich JudgeGray, writing for thema jority,seems to have wholly forgotten the literalismof his Riggs dis
sent: It is an elementary rule that statutes are to be interpreted accord
as Chancellor use, are
The intentionof the legislature is undoubtedly ing to their intent. the great principlewhich controls the office of interpretation; but,
Kent to be "The words of a statute, if of common says,... taken in their natural, plain, obvious, and ordinary a mischief, or some absurd result, or where
used will work
significance."It is only where the literal acceptation of thewords

some
obscurity in the sense compels it,thatwe need resort to extrinsic

aids of interpretation.116 It was, to be sure, a contention of the Riggs majority that a great "mi
schief and "absurd result"would follow frompermittinga murdering grandson to profit fromhis crime,which iswhy themajority opinion by Judge Earl demanded consideration of legislative intention.But the readerwill recall thatJudgeGray did not even deign to respond to
the majority's lative the relevance of legis argument, let alone acknowledge in that context?and his resounding intention, notwithstanding of intentionalism inWemplel
endorsement
So, notwithstanding the literalismof his Riggs dissent, JudgeGray was obviously not above deeming statutoryprovisions "too literally
construed."117 "Mere cient
the terms of a deed thatwas part of a trust,Judge Gray declared, would befall Riggs that
words should not be, and have not usually been, deemed suffi ... to entail the of forfeiture of an estate," the fate consequences
Indeed,
in Post
Weil
involving
the interpretation
of
to have been the distinct in unless, from the proof, such appears tention of the grantor, and a necessary of the par understanding to the instrument. Nor should the formal arrangement ties of the words serted viewing influence us wholly in determining what the clause was in to accomplish; but in this, as in every other, case, our the matter in the light of reason.119
judgment should be guided by what was the probable intention,
116 Id at 273. 117 See Warner 119 Id at 145.
11822NE 145 (NY 1889).
Fourth National
Bank,
22 NE
172,173
(NY
1889).
1244
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[76:1215
To be sure, thiscase did not involve a matter of statutoryinterpretation, endorsed here should not also be applied in a context likeRiggs. Judge Earl, who regularly authored decisions involving probate issues for theNew York Court ofAppeals, generally took the familiar view of probate courts that the intention of the testatormust be Sherman decided not quite upheld. Thus, for example, inHaynes twomonths afterRiggs, Judge Earl wrote, regarding the creation of trusts,some of which arguably violated the rule against perpetuities: "The courtswill strive to uphold somuch of a will as theycan,without frustratingthemain intentionof the testator,or violating any rule of 21
law." That counterfactual though it is not obvious why the intentionalism?indeed ? intention ... in the light of reason") intentionalism ("the probable
the intentionsof the grandfather counted for naught in themajority would not have opinion (the argument, recall,was that the legislature And while JudgeEarl did argue in intended the grandson to inherit). Riggs that the inheritancewould violate a natural law prohibition on benefiting from criminalwrongdoing, the core argument (the crux of the theoretical disagreement as Dworkin would have it) pertained to
the correct
sentiment,
alas, was
nowhere
in evidence
in Riggs, where
ther little inJudgeEarl's many other opinions for the court. This kind of interpretive opportunism of appellate courtswas do American Legal Realists and is familiar cumented decades ago by the wered: why the opportunism, and why in the pattern thatwe find it? we Short of a comprehensive biographical and historical study, may not know the answer.And yet even within the confines ofVolume 22 of theNortheastern Reporter some possibilities leap out. In a quite theNew York Court ofAppeals lengthydecision inPeople Budd the constitutionality thepower of the legislature to regulate of upheld
12022NE 938 (NY 1889). to every lawyer. But it still leaves the explanatory question unans
theory of statutory
interpretation,
a topic
that figures 22
ra
121 Id at 939 will was invalid because it suspended the absolute (holding that the deceased's state law). power of alienation required by 122 Home See, for example, O'Brien Benefit Society of New York, 22 NE 954, 955 (NY aside the language of a contract without discussion based on common law doctrine 1889) (setting and NE 22 thus rejecting the defendant's defense of breach by the plaintiff); People Charbineau, 271, 272 (NY 1889) (resolving the case on a literal reading of the relevant statute without 22 NE to justify his interpretive method). On the other hand, in Wood Mitchell, attempting
to the idea that "[i]t may also be rather brief opinion did appeal 1125 (NY 1889), Judge Earl's in interpreting a statute. Id at 1126 (relying that itwas the purpose of the legislature" supposed on a literal reading of the text as well as hypothetical legislative intent to find the case to be an easy one).
12322NE 670 (NY 1889).
2009] Explaining
1245
they figured af private grain elevators, since the commerce inwhich 24 Lochner era at the turnof the twentiethcentury (when the Supreme
Court ear, fected, so the legislature thought, the public the decision, of course, resonates with held unconstitutional, for example, interest. To the modern the issues central to the to regu
New York's
and to itsundoing thirty late the hours worked by bakers125) years later Roosevelt's New Deal.126 As Judge Gray wrote (in terms during Rufus Peck echoed inLochner New York121 his colleague Justice by
ham28):
attempt
This legislation ... is said to fallwithin the scope of the police measure, then I fail to see power of the state. If this is trueof this within which the exercise of thatpower can where are the limits be confined.This act undertakes to regulate the prices which can be charged by an individual in the prosecution of his private business_This plea for the extension of the police power to the with the conduct of a legitimatepri extent named, of interfering
vate business
I understand process of law.... individual has absolute liberty
son, and itcertainly tends to nullify thatprovision of the constitu tion which is supposed to guaranty to each individual that he or shall not be deprived of his lifeor liberty propertywithout due
it to be to pursue
enterprise,
seems
to me
to find no
support
in rea
or use of property.... That liberty I take to be guarantied 29 to him, and to be a most valuable constitution right. nomic Mills's "absolute to do what one
contractwith respect to his property, subject only to the restric tion that he may not interferethereinwith his neighbor's rights
by the
the general rule that the and to his avocations,
Since JudgeGray clearly subscribed to the view that so-called "eco

liberty"?the liberty" wants
with
one's property, subject only to the constraints of the John Stuart

Harm Principle130?is constitutionally inviolable, it should hard
124 Id at 674-75. 125 See Lochner New York, 198 US 45,53 126 See, for example, West Coast Hotel Co
(1905). Parrish, 300 US 379,396-97 (1937).
128 Id at 53-55. 129 Budd, 22 NE at 680-81 (Gray dissenting). 130 See John Stuart Mill, On Liberty 13 (Bobbs-Merrill [The Harm
127 198US 45 (1905).
1956):
are warranted, is that the sole end for which mankind individually or Principle] collectively, in interfering with the liberty of action of any of their number is self-protection. of a for which power can be rightfully exercised over any member That the only purpose civilized community, against his will, is to prevent harm to others.
1246
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[76:1215
lybe surprising thathe objected to the effortof themajority inRiggs to undo a testator's liberty to dispose of his property as he had in tended. JudgeGray's opportunistic literalism inRiggs in all likelihood has more to do with his ideological opposition to state interference with property rightsthanwith a considered view of statutoryinterpre
tation.
Judge Earl, on the basis of his published opinions, is somewhat harder to pin down.We may at least note that in one of his longest Volume 22 of the Northeastern Reporter, namely authored opinions in his majority opinion inMoller Moller,131he agrees with the lower
court's "low estimate of the value detectives" in divorce cases of the evidence of prostitutes diate its application traordinary detail documenting "clandestine" and and private but goes in this case.132 Indeed, the evidence to great lengths to repu ex Judge Earl provides of Mr. Moller's dalliance
were
with a prostitute. Although "the illicitamours of faithless husbands"

"hidden concludes that "corroboration one senses
evidence of the prostitute and detective as to induce belief in its so is repulsed by immorality, much so thathe would overturn the ver dict of a trial court, notwithstanding the ordinary norms of appellate deference. If this diagnosis is correct, should we be surprised that
Judge Earl criminal was truth."133 In Moller, the powerful indignation of a jurist who
from public observation," Judge Earl to the gives such strength and weight
serving grandson, beyond the punishments already prescribed by the 34

law? 13122NE 169 (NY 1889).
equally
eager
to "punish"
the felonious
and
self
132 Id at 169 (finding the defendant the testimony of the prostitute). 133 Id at 169-70.
guilty of engaging
in adultery with a prostitute
based
on
the Face Value of the disagreement. More emphasizing importantly, though, it is unclear how Judge Earl's moralistic argument against inheritance by felons. prudery translates into a principled need some evidence that the moral and political visions evi Equally importantly, we would denced could could in the cases noted be described reconstruct as "constructive the evidence in the text are actually
purportedly Realist interpretation of their behavior makes explicit. This is an intriguing, though I fear ultimately fanciful, proposal. Most obviously, there is not even the pretense in Riggs that the argument is explicitly motivated by competing moral principles, a significant problem for a theorist
to statutory interpretation in Riggs is that each judge is relying on a principle that he approaches to be the morally best of those that have some dimension of fitwith prior decisions?where judges of which ismorally best grows out of the moral and political visions that the the determination
134 to redeem his preferred account against the Real Perhaps there is a final way forDworkin ist explanation of the decision. For could not Dworkin argue that the moral and political visions that animate Judges Gray and Earl are really just the touchstones for their conflicting constructive interpretations of the law in Riggs1? In other words, the correct reconstruction of their differing
operating across a range of cases in a way that sense. Finally, even ifwe in the Dworkinian interpretation" account of the in support of a Dworkinian adduced by the Realist
2009] Explaining
1247
These Realist explanations for the disagreement in Riggs, dis pensing as theydo with theFace Value of the dispute, are the flipside of the Disingenuity account noted earlier. They do not necessarily port of their view; rather, the juristsmay simply be motivated sub moral view of themerits, such that they convince consciously by their themselves of the legal propriety of theirpreferred outcome. Or per
haps suppose that the jurists are aware that there is no settled law in sup
In any case, the preceding what dec shows, rather clearly, is that when Dworkin . . . of any kind that when lares "there is no positive evidence judges rarefied level of abstraction.
tled law? In that case, the Error Theory account explains why they talk as if therewere a fact of thematter about the applicable criteria of legal validity.Of course, given theirmoral views of themerits, it should hardly be surprisingthat they make a systematic mistake about
the nature of law at a certain
they lack even
a subconscious
awareness
of the absence
of set
made
seem to be disagreeing about the law they are really keeping their what he fingerscrossed"133 theDisingenuity account would have it), (as to have said is,"There may be lotsof evidence, but I have really ought
no effort to consider account?squares
That
Theory That
the debunking explanation?the

with other
any of it."
behavior
Disingenuity or Error
by the jurists in ques to a theoretical
tion is only one of its virtues: the virtue of consilience noted earlier.
it also does not require us to do violence account
of lawwhich explains the pervasive agreement about what the law is may be itsprimaryvirtue. If theoretical disagreement were something
other than legal phenomena?then 36 the claims of a theory, like Dworkin's, that give it pride of place But when themost strikingfeature might be theoretically significant. about sense provenance a marginal phenomenon?if of the pyramid of the universe it were of not primarily the
the law is, then any satisfactorytheoryhas to do a good job making

of that to be credible. Not only does positivism have such an
legal
systems
is the existence
of massive
agreement
about what
behavior of the judges in Riggs and other cases, we would still have to show that the explanatory is such that it warrants power of that account including within the class of valid legal norms sources. In any moral and political principles that lack any recognizable in authoritative pedigree toDworkin's to offer an account case, let this footnote stand as a challenge remaining defenders that meets the explanatory burden. 135 Dworkin, Law's Empire at 39 (cited in note 3). 136 Recall as being "about theoretical disagreement that Dworkin describes Law's Empire in law. It aims to understand what kind of disagreement this is and then to construct and defend theory about the proper grounds of law." Id at 11.
a particular
1248
explanation, agreement and
The University of Chicago noted about but Dworkin's earlier, at best, surprising, law, not exhaust a
Law Review
[76:1215
actions and decisions (forexample, by courts tivehistoryof institutional

legislatures) does community's law. Rather, on
the massive theory makes since for Dworkin, the posi
Dworkin's view, the law includes themoral principles that figure in the best explanation and justificationof that history,as well as whatever
concrete decisions kin's view, is in principle esoteric, a community might be unknown, follow from those principles. Thus, the law, on Dwor since much, indeed all, of the "law" in of indeed never known, by members If this were might the true nature of law,
We need not stop with appeal to the phenomenon of massive agreement about what the law is, for the positivist theory explains more than that: itpurports to explain how theordinaryperson familiar with a modern municipal legal systemunderstands law; itpurports to explain how the distinctionbetween legal and moral norms is drawn; it not just the idea of law in purports to explain thegeneral concept of law, moral whose institutional history falls above the thresholdrequired for of that legal system to be possible, sinceDworkin's theory justification aims to "explain how what it takes to be law provides a general justifi
cation for the exercise assume of coercive any particular theory, by contrast, is legal system; and so on. Dworkin's It can only make far less consilient. sense, for example, of legal systems
principles and their consequences. the existence of massive agreement
moral thatcommunity insofaras theyfail to appreciate the justificatory

seem puzzling indeed.138
theoryis also less simple than itspositivist competitor, since itdemands

that we the existence of knows, these answers theoretical as well as the existence legally of moral that no one right answers what facts that determine least as presented disputes
power
by
the state."139 Dworkin's
in Law's Empire?is
are. Its apparent
that it explains something of the Face Value of

treating them as interpretive about
primary
virtue?at
the point or purpose of our legal practices.140 Why
disagreements,
this explanatory
137 On the agree about what the law requires so often positivist account, legal professionals in a functioning legal system, what the law is is fixed by a discernible practice of officials because, who decide questions of legal validity by reference to criteria of legal validity on which they notes 59-60. recognizably converge. See text accompanying 138 Dworkin would be forced to to explain why there is this appeal to epistemic considerations of the situation (that is, that what the massive agreement, notwithstanding the strange metaphysics 's theory has, of course, long law ismight be unknown by all existing jurists and lawyers). Dworkin on this distinction. But Dworkin for why the epistemic has never given an explanation depended constraints under which jurists and lawyers operate should lead tomassive convergence. 139 Dworkin, Law's Empire at 190 (cited in note 3). 140 Notice that even Dworkin's goes far "interpretivist" reading of theoretical disagreement the Face Value of the opinions, even in Riggs. beyond
2009] Explaining
1249
ones
achievement (if that iswhat it is) should trump positivism's greater

is nowhere explained by Dworkin.
Conclusion
accounts. We and explanatory virtues of competing at least, sum up the conclusions about the debate defended here: may, the theoretical
There is,to repeat, no simple formula fordeciding how to tallyup
1. Dworkin explains some of the Face Value of some theoretical

disagreements, goes beyond, for example in Riggs. Even Dworkin's account or ignores parts of, the Face Value disagreement.
2.
The positivist has an explanation of theoretical disagreement in cases likeRiggs, which explains away theFace Value of the disa havior by the jurists inquestion.
greement, but is also more consilient with an account of other be
3.
That
Dworkin's establish
Riggs is less plausible than the positivist account does not, of

course, perior.
explanation
of the theoretical
disagreement
in
he has made itcentral to his attack on positivism.

4. Theoretical disagreements are relatively
Perhaps
Dworkin's
that the positivist
are generally su explanations was ill chosen, even though example
within the scope of a general theoryof law,emerging primarily at the pinnacle of the pyramid of legal questions that arise.Massive
about the law is a farmore agreement a theory must address. fares better about common phenomenon that
marginal
phenomena
5.
Positivism agreement
at preserving the Face Value law than does Dworkin's theory.
of massive
6.
ma
There are other legal phenomena forwhich positivism has a pri

are untouched facie plausible account, which by Dworkin's to the positivist account of theoretical disagreement. objections own account of theoretical disagreement
7.
Dworkin's and more
is embedded
in a theoryof law and adjudication which is both less consilient

complex than the positivist account.
It is true,as Shapiro argued, that the objection to legal positivism in Law's Empire is differentfrom the objections on which Dworkin built
as a critic of Hart. Yet, as I have his reputation to amount to much, either when does not appear own terms (as an account, for example, of Riggs argued, the objection on its it is considered in competition or Hill
with the positivist account), or when considered in lightof the pletho

ra of theoretical desiderata that should inform a plausible
theory of
1250
Law Review
[76:1215
Article
law.To the extent readers disagree with that conclusion, I hope this
at least succeeded in framing the theoretical issues at stake for
a criticof positivismwho is impressed by thephenomenon of theoret

ical disagreement.

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Explaining Theoretical Disagreement Author(s): Brian Leiter Reviewed work(s): Source: The University of Chicago Law Review, Vol.

Explaining Theoretical Disagreement

for Law, Philosophy,

Cane, Riccardo Jane Stapleton,

The University of Chicago

law was H.L.A.

to this new According count of what Dworkin

(or, as I shall some

Realism andNaturalism inLegal Philosophy 153,154 (Oxford2007), originally published in48

RutgersL J 165 (2004).

law's grounds). (providing an

Disagreement 2009] ExplainingTheoretical

57 (cited innote 1).As Shapiroputs it:

10 22NE 188 (NY 1889).

means. This distinction proves it

important in Parts II and III.

The University of Chicago

"[TJheirdisagreement?or so it seems from reading the opinions they

assign them ifwe had no special information about the context of

theory of 'literal' inter "the meaning we would

of the statutes governingwills made clear that the grandfather'swill

who originally enacted the statute of wills intendedmurderers to in

offers the Supreme

at 16 (cited in note 3).

Riggs, 22 NE at 191 (Gray dissenting). Law's Empire at 18 (cited in note 3).

17 437US 153 (1978).

the public the courts should

weal,"23 which Dworkin an absurd result accept

or whether it received vetoed, disa of course, are empirical

case, not at issue inDworkin's describes Law's Dworkin

agreement in law" that "constructs] and defend[s] a particular theory"

The University of Chicago

of law thatexplains such disagreement and how it is possible. He dec

no plausible theory of theoretical disagreement in

II. The Positivist Account

organized about law, absent it is somehow corpus?that should be abandoned

of the universe is one of only a multitude of empirical phenomena to

is that the expansion

that this phenomenon

2009) of the universe

modify new ones, or in various ways control 32 Id at 106. 33 Id at 107-10. 34 35 Id at 109.

The University of Chicago

ness to override thewill of the legislature.39 Judges engaged inDwor

them to do in particular cases; they are not engaged in an empirical

there is a failingof Freud's account it surely is not that it fails to take

for the affections

that the con

We might think that taking those disagreements at Face disagreement.

Sigmund Freud 151,188-89 42 Id at 189.

The University of Chicago

Value iswarranted precisely because it seems possible to reconstruct

two candidate Face Value

So how do positivists explain theoretical disagreement? There are

on their own disagreements to Dworkin's complaint sympathetic

so, in any case,

retical disagreements are simply in error: theyhonestly think there is a

nuity account presupposes

the truthof the Error Theory: a judge

that the Disinge

of legal validity operative in a dispute without knowing that, in fact,

the parties to the dispute know, at some level, that itwould be a

The Disingenuity account can be put in terms that are either