One theme in my work on the
philosophy of law is skepticism about the relevance to the field of the
What the Philosophy of Language Can’t Teach Us about the Law,
Review 1897-1952 (2003)
Dworkin's Fallacy occurs when one concludes that a theory of how the word “law” gets its meaning (or a theory of how our concept of law gets its content) entails, or is equivalent to, a theory of law. I argue that the fallacy is evident in Dworkin's classic work Law's Empire (1986). Although this criticism of Dworkin has been made by others – most notably Ken Himma and Jules Coleman – I think I found a particularly clear way of describing it. I also show how a similar fallacy can be found in other writers, such as Dennis Patterson.
I should not have attributed the
fallacy to Michael
Moore, however (pp. 1929-32). I seized uncharitably upon two passages
could be read as examples of the fallacy, even though, as I noted in
article, Moore showed himself to be fully aware of the fallacy
elsewhere. I was driven by the desire to find as many prominent
examples of the fallacy as possible and I did not think that Moore
would really care. But he (rightly) did, and I
want to apologize here.
Halpin on Dworkin’s Fallacy: A Surreply, 91 Virginia Law Review 187-201 (2005)
This response to Andrew Halpin, Or,
Even, What the Law Can Teach the Philosophy of
Language: A Response to Green, 91 Virginia Law Review 175-186
(2005), is, I’m afraid, an example
of two ships passing in the night. From what I can tell, Halpin was
primarily interested in an issue not discussed in my article – namely, the extent to which the law
might have something to teach the philosophy of language. But he did
not spell out his position in sufficient detail for me to feel
competent to respond. One
useful about this piece, however: I elaborated on my argument, which
compressed in the original, that Dennis
Patterson succumbs to Dworkin's Fallacy. Other
than that, I think it can be ignored.
This is a review essay on Ronald
Dworkin, Justice in Robes (2006).
I argue that, like Law's Empire, Justice in Robes suffers from
Dworkin's Fallacy. I also discuss a number of issues that I neglected
in my original Virginia piece. For example, I argue that the underlying
reason Dworkin succumbs to his fallacy is that he conflates the
linguistic practice of applying the concept of law with the legal
practice among officials in a jurisdiction of enforcing norms if they
satisfy certain criteria. I also spend some time describing situations
in which the philosophy of language can
have some limited consequences for the scope of the law.
Finally, I try to make clear that Dworkin’s theory of law is not
by the fallacy. I want to repeat that here. There is in fact a good
Dworkin's theory of law with which I am sympathetic. Indeed, the upshot
of the review is that Dworkin has
needlessly hampered the reception of his legal theory among
philosophers by sticking to the fallacy.
Does Dworkin Commit Dworkin’s
Fallacy? A Reply to Justice in Robes, 28 Oxford Journal of
Legal Studies 33-55 (2008) (also available here)
In Justice in Robes, Dworkin
briefly responds to my first Virginia article. This was a very nice
piece of publicity, alloyed only by the fact that Dworkin misspelled my
middle name (it's "Steven," not "Stephen"). In this piece, I directly
respond to Dworkin's argument (the Illinois review is more general). I
am rather proud of it, for I go methodically through the intricate details of Dworkin's theory of law
(especially the place within that theory of the positions he calls
"conventionalism," "pragmatism," and "law as integrity"). In the end, I
think I show that Dworkin does
indeed succumb to Dworkin's Fallacy even in Justice in Robes. I posted
version of this paper on SSRN, but I much prefer the shorter one
that ultimately came out in OJLS.
With the OJLS piece, however, I
think this theme is played out and I don't plan on writing anything
more on the topic.
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