“Dworkin’s Fallacy”

One theme in my work on the philosophy of law is skepticism about the relevance to the field of the philosophy of language.

Dworkin’s Fallacy, Or What the Philosophy of Language Can’t Teach Us about the Law, 89 Virginia 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 that could be read as examples of the fallacy, even though, as I noted in the 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 thing is useful about this piece, however: I elaborated on my argument, which was compressed in the original, that Dennis Patterson succumbs to Dworkin's Fallacy. Other than that, I think it can be ignored.

Dworkin v. The Philosophers, 2007 University of Illinois Law Review 1477-1503 (2007)

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 undermined by the fallacy. I want to repeat that here. There is in fact a good deal in 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 a longer 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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