PLURALITY IN LEGAL REASONING - THE PLACE OF VALUE PLURALISM IN THEORIES OF LAW AND ADJUDICATION BRADLEY GOODING A thesis submitted in fulfilment of the requirements for the degree of Doctor of Philosophy School of Law Faculty of Law January 2020 2 3 4 5 Acknowledgements To all the varied support circles which make academic efforts plausible: long may we continue our (hopefully) mutual enrichment. More specifically, however: To Marc, Arthur, and Robert, whose mentorship I cherish; To Teena, Philip, and Travis, whose presence is a happy constant; And to Nathan and Alexandria, who have endured me valiantly; This work has you to thank, and, where appropriate, blame. ~ 6 TABLE OF CONTENTS INTRODUCTION – Plurality as Problem ............................................ 9 SECTION I Animus ................................................................................................ 9 SECTION II The Place of Plurality in Law ....................................................... 12 SECTION III The Argument of This Thesis .................................................... 27 PART I – Conceptualizing a Pluralism Fit for Law ........................ 43 CHAPTER 1 – Value Pluralism – Isaiah Berlin and the Phenomenology of Conflict ................................................................ 44 SECTION I Pluralism as Archetype .................................................................. 44 SECTION II Berlinian Pluralism, and Its Virtues ........................................... 46 SECTION III Four Critical Senses of Pluralism .............................................. 74 SECTION IV The Case Against Berlinian Pluralism ...................................... 84 SECTION V Battlements Battered, but the Citadel Stands ........................ 101 CHAPTER 2 – Pragmatism – Epistemology, Value Theory, and Practical Reasoning ............................................................................ 103 SECTION I The Defense of Pluralism ............................................................ 103 SECTION II Pragmatism, as an Epistemology in Support of Pluralism ... 105 SECTION III Expressivism, as a Socialized Theory of Valuation and Incommensurability......................................................................................... 135 SECTION IV Satisfiction, as a Decision Theory Under Conditions of Value Plurality ............................................................................................................. 152 SECTION V Interim Conclusion: The Sophisticated Opponent ................ 169 PART II – Conceptualizing a Law Fit for Pluralism ..................... 177 CHAPTER 3 – Positivism – Joseph Raz and the Conceptual Nature of Law ...................................................................................... 178 SECTION I The Positivist Archetype ............................................................. 178 SECTION II Locating Plurality in Positivism ................................................ 185 7 SECTION III Working With Concepts – The Functionality of Positivism 209 SECTION IV The Pragmatic Case for Positivism ......................................... 238 CHAPTER 4 – Interpretivism – Ronald Dworkin and the Sovereignty of Value .......................................................................... 243 SECTION I Dworkin’s Empire ......................................................................... 243 SECTION II The Sovereignty of Value ........................................................... 247 SECTION III An Epistemology for Justice Hercules .................................... 261 SECTION IV Pluralism, Internalized .............................................................. 284 SECTION V Pluralistic Interpretivism ........................................................... 306 CHAPTER 5 – Legal Pragmatism – Richard Posner and the Economization of Value .................................................................... 310 SECTION I Pragmatic Legal Transformation ............................................... 310 SECTION II The Pragmatic Account of Adjudication ................................. 315 SECTION III Pragmatism as Antitheory ........................................................ 340 SECTION IV Economics as Pragmatism ........................................................ 365 SECTION V Pluralizing Pragmatism .............................................................. 389 CONCLUSION – The Prospects of Pluralism ................................. 393 SECTION I Pluralistic Opposition to Monistic Law ..................................... 397 SECTION II Pluralistic Affirmation of Theoretical Diversity .................... 409 SECTION III Pluralistic Transformation of the Legal Profession ............. 419 BIBLIOGRAPHY.……………………………………………………………432 ~ 8 Introduction – Plurality as Problem BRADLEY GOODING INTRODUCTION – PLURALITY AS PROBLEM Our understanding of law is greatly defective unless it includes and is based on a sound view of the role of law in practical reasoning… a theory of law assumes an understanding of practical rationality. ~ Joseph Raz, ‘Facing Up: A Reply’ 1 It matters how judges decide cases. ~ Ronald Dworkin, Law’s Empire 2 I seek neither to compete with professional philosophers nor to take sides in philosophical debates, but only to mine philosophy for insights useful to law. ~ Richard A Posner, The Problems of Jurisprudence 3 I A NIMUS Three tropes of Western, liberal, common law legal thought constitute the animating concern of this thesis. All three are significant for the political legitimation of legal proceedings in a context framed by the basic attitudes to law expressed in the above, opening, quotations. The first is a framing condition: legal reason must be well-justified. Indeed, it is expected that legal judgments be as well-justified as plausible, and the legal system supports an escalating and expensive hierarchy of courts accordingly.4 This criteria-structuring claim to superiority in reason shapes the professionalization and institutionalization of legal processes, and bears upon the conceptualization of legal form, the rhetorical and rational forms of argumentation which are tolerated in a courtroom setting, and the critical structures of praise and blame by which public discourse apprehends 1 (1989) 62 Southern California Law Review 1153, 1554. 2 (1998, Oxford: Hart Publishing), 1. 3 (1993, Harvard University Press), xii. 4 The expectation that law advance a pedigreed claim to Reason is neatly encapsulated by Rawls’ suggestion that public discourse should aspire to emulate the reflective forms of reasoning displayed by the Supreme Court of the land. See John Rawls, Political Liberalism (expanded ed, 2005, Columbia University Press), 231. 9 Introduction – Plurality as Problem BRADLEY GOODING both legal officials and arguments. Law’s rational prestige is justified by the sheer gravity of legal judgment: legal questions call for officials, who stand removed from conventional forms of public and administrative accountability, to arbitrate publicly and decisively upon a social conflict which may promise ruinous consequences for its loser. And in the process of doing so, law’s arbitrations are/become intimately tied with socialized appreciations of justice as it is systematically institutionalized. Hence, as Ronald Dworkin opened Law’s Empire , legal reasoning starts with the thought that it matters how judges decide cases. 5 We have a concern to see that legal reason is exercised properly, in a pattern of reflective justifiability, and the motivational foundations of jurisprudence - positive jurisprudence, at least 6 – follow from this anxiety. The second and third tropes are norms of political legitimation which exist in tension with one another. On the one hand, there is a belief in the fairness of universality, which prompts a functional desire for the univocality of law and the treatment of like cases alike. So it is wished that legal reason be recognizable and agreeable to all, even though the very existence of legal conflict revokes any pre-existent universal agreement. Thus, legal thought is evaluated on its ability to transform the situation of conflict into something universally recognizable as fair, acceptable, and final, despite that disagreement which constitutes the situation of legal decision. Even so, contemporary common law is not primarily aimed at negotiating compromises, although it may form the backdrop for such processes. Rather, adversarial legality has it that two parties enter the courtroom, yet only one party leaves vindicated: the supportive theoretical structures for legal judgment are, accordingly, contextually bound to this expectation of singular vindication. Similarly, in the macroscope of politics in which the law is constructed, orthodoxy holds that the voice of the state, as law, is univocal: all facets of 5 Dworkin, above n 2, 1. 6 See further discussion in Douglas E Litowitz, ‘Positive and Negative Jurisprudence’ in Postmodern Philosophy and Law (1997, University Press of Kansas), 38-41. 10 Introduction – Plurality as Problem BRADLEY GOODING government are expected to cohere in its enforcement, and the diverse citizenry within the jurisdiction is expected to comply in universal obedience. The expectation of a form of law which applies fairly and equally across the span of distinctly different persons advances a call for legal forms which apply and determine legal outcomes with generalizable fairness. On the other hand, however, legal forms are also expected to show respect for