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Value and Truth in the Legal Theory of Ronald Dworkin

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Value and Truth in the Legal Theory of Ronald Dworkin Value and Truth In the Legal Theory of Ronald Dworkin Lynden Margaret Douglas LLB (Melb), LLM (Public Law) (QUT) A thesis submitted for the degree of Doctor of Philosophy at The University of Queensland in 2014 T. C. Beirne School of Law ABSTRACT Brian Leiter observes that Dworkin creates problems for his legal theorizing in maintaining on the one hand that moral values figure in the truth of propositions of law, at least in ‘hard cases’, but on the other had that there are right answers to be found for those ‘hard cases’.1 Moreover, Leiter stresses that while Dworkin was aware of these concerns, his responses ‘have attracted little attention from philosophers or jurisprudents over the years’.2 Yet, Dworkin’s approach to the objectivity of moral (and, therefore, legal) truth is critical to drawing a distinction between his work and that of other constructive interpretive theorists. It is the very aspect that sets his work apart from many other philosophers who might be sympathetic to his interpretive views. It is the aim of this thesis to clarify and contextualize this important aspect of Dworkin’s theoretical outlook. I propose that it is helpful to understanding Dworkin’s approach to objectivity and truth, and his theory as a whole, to situate his work within the canonical theories of David Hume and Immanuel Kant, but also I consider that it is equally helpful to situate Dworkin’s thinking on these matters, particularly his later thought, within the later theory of Ludwig Wittgenstein. Although Dworkin’s work is spattered with references to Wittgenstein, and although philosophers have noted the potential ‘quietism’ in Dworkin’s approach to metaphysics, few philosophers consider his work from a non-skeptical, Wittgensteinian perspective. This may be, in part, due to the general lack of enthusiasm in some philosophical circles for the work of Wittgenstein. However, Dworkin’s not infrequent references to Wittgenstein, as noted, would seem to indicate that Dworkin found inspiration from Wittgenstein’s texts. This thesis pursues the connections between Dworkin and Wittgenstein to illuminate the nature of Dworkin’s constructivist theory of truth. This thesis also draws on Wittgenstein to explore the question of whether Dworkin’s theory is properly viewed as a form of naturalism. It might be argued that, in Law’s Empire, Dworkin outlines a form of constructive interpretation that lends itself to being understood as a naturalist methodological approach to legal theory. But, even if this is the case, an epistemological naturalism does not necessarily presuppose a commitment by Dworkin to a metaphysical naturalism. A number of authors, including Leiter and Michael Moore, have characterized Dworkin’s theory as a form of metaphysical non-naturalism. An alternative to this approach would 1 Brian Leiter, ‘Objectivity, Morality and Adjudication’, in Brian Leiter (ed), Objectivity in Law and Morals (Cambridge University Press, 2001) 66, 66-7. 2 Ibid, 67. ii be to consider that Dworkin’s theory is a form of ‘quietism’ (that is, that it prescinds from or remains agnostic on metaphysical issues), an accusation that he responds to himself. I propose instead, that if Dworkin’s theory of truth, read in its best light and in conjunction with his theory of law as a matter of interpretation, can be considered in a Wittgensteinian context, and if metaphysical naturalism can be divorced from a strict scientific approach to it, there is an argument available for Dworkin’s theory to be considered as a form of metaphysical naturalism. That form of naturalism would take as its foundation the very context of ‘humanity’ as a particular and complicated ‘form of life’. iii Declaration by author This thesis is composed of my original work, and contains no material previously published or written by another person except where due reference has been made in the text. I have clearly stated the contribution by others to jointly-authored works that I have included in my thesis. I have clearly stated the contribution of others to my thesis as a whole, including statistical assistance, survey design, data analysis, significant technical procedures, professional editorial advice, and any other original research work used or reported in my thesis. The content of my thesis is the result of work I have carried out since the commencement of my research higher degree candidature and does not include a substantial part of work that has been submitted to qualify for the award of any other degree or diploma in any university or other tertiary institution. I have clearly stated which parts of my thesis, if any, have been submitted to qualify for another award. I acknowledge that an electronic copy of my thesis must be lodged with the University Library and, subject to the policy and procedures of The University of Queensland, the thesis be made available for research and study in accordance with the Copyright Act 1968 unless a period of embargo has been approved by the Dean of the Graduate School. I acknowledge that copyright of all material contained in my thesis resides with the copyright holder(s) of that material. Where appropriate I have obtained copyright permission from the copyright holder to reproduce material in this thesis. iv Publications during candidature No applicable publications. Publications included in this thesis No applicable publications. Contributions by others to the thesis There are no contributions to the thesis beyond those mentioned in the Acknowledgments below. Statement of parts of the thesis submitted to qualify for the award of another degree Not applicable. v ACKNOWLEDGEMENTS Many of the people who have contributed to this thesis are people behind the scene, whom I cannot identify personally, such as those in the Research Higher Degrees Committee at the TC Beirne School of Law, and the Librarians at the University of Queensland. I am grateful for their assistance. Particularly, I would thank Ms Julie Collins, whose friendly emails connected me to that larger community and assisted me in completing the required administrative processes. I owe the fact of beginning this thesis at all to the encouragement of Dr Sharon Hayes, at the Queensland University of Technology. I owe its continuation, when the task had lost direction and sense of boundary, to a chance meeting with Professor Heather Douglas from the University of Queensland’s TC Beirne School of Law, for her suggestion that I might contact Dr Jonathan Crowe to discuss my ideas with him. To Dr Crowe, my Supervisor, I owe a large debt of gratitude for acknowledging value in the pieces I had written, for his encouragement to persevere, and for the suggestions that provided me with both the required boundary and a new direction. I am grateful for the forbearance of my family while I have committed so much of my time to this project. Above all, I owe a debt of gratitude to my partner, David, who from the perspective of a hardened empirical scientist, has listened with patience to countless reformulations of ideas, and who, ultimately, provided the primary reason for the completion of this thesis. vi Keywords Jurisprudence, Ronald Dworkin, value, truth, constructive interpretation, naturalism. Australian and New Zealand Standard Research Classifications (ANZSRC) ANZSRC code: 220204, History and Philosophy of Law and Justice, 100%. Fields of Research (FoR) Classification FoR code: 2202, 100%. vii Table of Contents I Introduction ................................................................................................................................ 11 A Thesis Purpose .................................................................................................................................... 12 B Thesis Outline ..................................................................................................................................... 13 II The Influence of Hume and Kant ............................................................................................ 16 A The Truth of Propositions of Law .................................................................................................... 16 B Enlightenment Changes ..................................................................................................................... 18 C Hume and Kant .................................................................................................................................. 19 1 Introduction ...................................................................................................................................... 19 2 David Hume (1711-1776) ................................................................................................................. 21 3 Immanuel Kant (1724-1804) ............................................................................................................ 35 4 Kant’s Constructive Theory ............................................................................................................. 42 5 Reason, Freedom and the Moral Law ............................................................................................... 50 6 Conclusion ........................................................................................................................................ 57 III The Rights Thesis – The Role of Political Morality in the Law ........................................... 59 A Introduction .......................................................................................................................................
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