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Arizona State Law Journal

Summer, 1997
Order of the Coif Lecture
Ronald Dworkin [FNa1]
Copyright (c) 1997 by the Arizona State Law Journal; Ronald Dworkin
I want to thank Professor Murphy very much for a really splendid introduction. I am very grateful. I am very
grateful, too, for the opportunity to give the Order of the Coif Lecture, not just because of its remarkable aus-
pices, but because the lecture was the culmination of my first visit to the American Southwest, which was spec-
tacular. I saw everything there was to see, sometimes in the driving rain and sometimes in the bitter cold, but it
was all marvelous.
As Professor Murphy indicated, I am going to address the role of theory in legal reasoning and legal prac-
tice. Examples are better than anything, so I will start with some. Suppose that a woman has taken generic pills
that turned out to have very damaging side effects. Many different manufacturers manufactured the pills, and she
does not have any idea who made the actual pills she bought and took from one year to the next, and therefore
no idea whose pills caused her injuries. Can she sue any or all of the drug manufacturers? Or do we insist that no
one is liable in tort for damage that he or she or it did not cause? Lawyers have argued both sides. Some, includ-
ing the California Supreme Court, have said that the drug manufacturers are jointly and severally liable. [FN1]
Others insist that none of them is liable, and the woman's loss, sadly, is an uncompensable loss in law. Suppose
(to provide a different example) that people burn American flags by way of political protest, and the question
arises whether the government can make that a crime consistently with the First Amendment. Again, as you
know, lawyers and others have taken different views. The Supreme Court replied no, but many lawyers con-
tinue to think it made a mistake of constitutional law. There are thousands of other examples of deep controver-
sies about what the law is. The Supreme Court is about to hear a case on appeal from the Ninth Circuit in which
an even more daunting question is raised: whether the Constitution grants some right, at least in *354 principle,
to assisted suicide. [FN2] Judges and lawyers and ordinary people answer that question in sharply different
Now I can state the main issue. What kind of a statement is a statement that, for example, the drug manufac-
turers are in law jointly and severally liable? Or that the First Amendment protects flag-burning? Or that the
Fourteenth Amendment grants a right to assisted suicide? These are not straightforward historical statements,
not just descriptive reports of events that took place in the past. Nor are they just prediction: Someone who says
that the Constitution protects assisted suicide may predict (as I do) that the Supreme Court will decide the other
way. So what in the world makes a claim, about what the law is on some matter, true or false?
Here is what I believe to be another way to put much the same question. What is an appropriate way to reas-
on or argue about the truth of claims of law? Let us distinguish two very general answers to that question. I shall
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call the first the theory-embedded (or just the embedded) approach. Legal reasoning means bringing to bear
on particular discrete legal problems, such as those I described, a vast network of principles of legal derivation
or of political morality. In practice, you cannot think about the correct answer to questions of law unless you
have thought through or are ready to think through a vast over-arching theoretical system of complex principles
about the nature of tort law, for example, or about the character of free speech in a democracy, or about the best
understanding of the right to freedom of conscience and of personal ethical decisions.
The second answer--I will call it the practical as opposed to theoretical approach--might be put this way. All
that I just said about large, general, over-arching theories is misplaced. A judicial decision is a political occa-
sion, and judges and lawyers and everyone else who thinks about the law should be directing their attention to
the immediate practical problem posed by any political occasion. The only question should be: How can we
make things better? You do need to know a lot about the consequences of different decisions--and perhaps also
some economics in order to gauge these consequences--in order to answer that practical question helpfully. But
you do not need volumes of political philosophy.
I dare say that as I described these two approaches, you immediately knew which one was yours. The prac-
tical approach seems so down-to-earth, so sensible, so American. The theory-embedded approach, on the con-
trary, seems abstract, metaphysical, and wholly out of place when there is real work to be done. As you have by
now gathered, I am going to attempt to *355 argue exactly the opposite. I am going to argue that the theory-
embedded approach (which I described as its enemies do, but will re-describe in a more qualified way in a mo-
ment) is not only attractive but inevitable. The practical alternative, I will argue, suffers from one commanding
defect: it is wholly impractical.
I will begin by trying to describe in somewhat more detail how I understand the theory-embedded view of
legal reasoning. I will say something, in the course of that exposition, about Hercules and other titans. Then I
will consider two recent attacks on the theory-embedded view so understood. The first is offered by Judge
Richard Posner [FN3]--you know, the lazy judge who writes a book before breakfast, decides several cases be-
fore noon, teaches all afternoon at the Chicago Law School, and performs brain surgery after dinner. The second
is by an almost equally prolific colleague of his, Cass Sunstein, who also teaches at the Chicago Law School.
[FN4] Together these scholars form a Chicago School of anti-theoretical, no-nonsense, jurisprudence. Both criti-
cize the embedded conception of legal reasoning and endorse the practical one, and both describe my own ac-
count of the former as a paradigm of the errors they hope to correct. I will therefore use their work to test my ar-
gument that we really do not have a choice between the so-called theoretically over-arching, despicably abstract
view they denounce and the practical view they tout.
I asked a question a while ago. What kind of a claim is the claim that drug manufacturers are (or are not) li-
able jointly and severally for harm some of them did not cause? We do best, I suggest, to regard that as an inter-
pretive claim: it asserts that principles are embedded in our legal practice such that, when you apply those prin-
ciples to the case at hand, they entitle (or do not entitle) the plaintiff to a decision against the drug manufacturers
as a group. The phrase principles embedded in practice is, of course, a metaphor, and though metaphors have
their appeal, in jurisprudence they have too often been substitutes rather than spurs to thought, and it is best to
get rid of them as soon after they appear as possible. My metaphor is meant to suggest that we justify legal
claims by showing that principles that support those claims also offer the best justification of more general legal
practice in the doctrinal area in which the *356 case arises. Of course, lawyers will disagree about which set of
principles provides the best justification for the general shape of any considerable part of the law. Someone
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might offer, for example, as providing the best justification for the law of unintentional harm, the principle that
people are responsible for the harm they cause negligently even though unintentionally, but not for any harm
they do not cause. If we take that principle as providing the best justification, then the drug manufacturers win
and the plaintiff loses because she cannot prove that any of them caused her any harm. But other lawyers would
argue that tort law in this area is better justified by a very different principle--that when misfortunes happen as
an almost inevitable consequence of some valuable commercial enterprise, like pharmaceutical research, devel-
opment and marketing, then the loss should not fall only on particular unfortunate victims, but should be distrib-
uted among the class of those who profit from the enterprise. That principle would presumably argue for the op-
posite result. Of course other pertinent principles might be formulated, some of them more persuasive and much
more complex, but two are enough for our example.
We can also construct, for the sake of another example, two rival principles pertinent to the flag burning
case. The first holds that the special protection our practice gives freedom of speech is justified by the instru-
mental importance of that freedom in the functioning of our democracy. The second holds that free speech prac-
tice is better justified by the rather different principle that it is part of equal citizenship--and therefore a principle
constitutive of, rather than instrumental towards, democracy--that no one may be denied the expression of a con-
viction or opinion or preference simply because it is offensive. The former of these principles, I believe, would
better support a decision against a right to burn a flag, and the latter would better support the opposite decision.
A claim of law--either that the drug victim wins or loses or that flag burning can or cannot constitutionally
be prohibited--is tantamount to the claim, then, that one principle or another provides a better justification of
some part of legal practice. Better in what way? Better interpretively--better, that is, because it fits the legal
practice better, and puts it in a better light. [FN5] In that case, any legal argument is vulnerable to what we
might call justificatory ascent. When we raise our eyes a bit from the particular cases that seem most on point
immediately, and look at neighboring areas of the law, or maybe even raise our eyes quite a bit and look in gen-
eral, say, to *357 accident law more generally, or to constitutional law more generally, or to our assumptions
about judicial competence or responsibility more generally, we may find a serious threat to our claim that the
principle we were about to endorse allows us to see our legal practices in their best light. For we may discover
that that principle is inconsistent with, or in some other way sorts badly with, some other principle that we must
rely on to justify some other and larger part of the law. For example, we might be prepared to accept that people
or institutions can be held responsible for compensation in tort without showing that their acts caused any of the
injury that they are asked to help to compensate. But someone might then press on us the possibility that that
principle has been rejected elsewhere--that it has been implicitly rejected, for example, in those cases that deny
liability on the ground that the defendant's action was too remote in the causal chain that produced the plaintiff's
injury. Or we might come to press that possibility on ourselves. Of course we might well be able to turn away
the threat by showing how those latter decisions can, after all, be reconciled with the principle that we hold ap-
plies to enterprise liability. But we cannot simply ignore the threat, because the character of the interpretive ar-
gument we are making--which we must make to sustain a legal claim--makes any such threat relevant. We can-
not simply ignore the claim that our purported justification would in fact show our legal practice to be unprin-
cipled, because it appeals to a particular principle in justifying coercion against some citizens and rejects the
same principle in denying compensation to other people. If that claim is justified, our proposed decision would
be objectionable, not just as a matter of theoretical elegance, but also as a matter of how a community commit-
ted to equal citizenship should govern itself.
Of course I do not mean, by calling attention to the constant threat of justificatory ascent, that the threat will
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always or even often materialize. Most of the time it will not, at least in a serious and time-consuming way, and
we can cheerfully proceed on the footing of what we might call very local priority--in effect, looking no further
in our interpretive arguments than the statutes or cases directly dealing with the matter at hand. [FN6] But justi-
ficatory ascent is always, as it were, on the cards: we cannot rule it out a priori because we never know when a
legal claim that seemed pedestrian and even indisputable may suddenly be challenged by a new and potentially
*358 revolutionary attack from a higher level. I tried to capture that vulnerability in principle in my picture of
the heroic Judge Hercules, who, given his talents, might well proceed in the opposite direction from the one I
just described. He might think, not inside-out, from more specific problems to broader and more abstract ones,
as other lawyers do, but outside-in, the other way around. Before he sits on his first case, he could build a gi-
gantic, over-arching theory good for all seasons. He could decide all outstanding issues of metaphysics, epi-
stemology and ethics, and also of morality, including political morality. He could decide what there is in the uni-
verse, and why he is justified in thinking that is what there is; what justice and fairness require; what freedom of
speech, best understood, means, and whether and why it is a freedom particularly worth protecting; and when
and why it is right to require people whose activity is connected to other people's loss to compensate them for
that loss. He could weave all that and everything else into a marvelously architectonic system. When a new case
arises, he would be very well prepared. From outside--beginning, perhaps, in the intergalactic stretches of his
wonderful intellectual creation--he could work steadily in towards the problem at hand: finding the best avail-
able justifications for law in general, for American legal and constitutional practice as a species of law, for con-
stitutional interpretation, for tort, and then, finally, for the poor woman who took too many pills and the angry
man who burned his flag.
Ordinary people, lawyers, and judges cannot do much of that. We reason from the inside-out: we begin with
discrete problems forced upon us by occupation or responsibility or chance, and the scope of our inquiry is
severely limited, not only by the time we have available, but by the arguments we happen actually to encounter
or imagine. A judge reasoning from the inside-out will rarely find either the time or the need to undertake long,
laborious research or argument. Sometimes, however, he will. Benjamin Cardozo felt that necessary in MacPh-
erson v. Buick Motor Co., [FN7] and he changed the character of our law. We can all think of other decisions in
which judges found themselves drawn upward in a justificatory ascent they may not have anticipated when they
began to think about the case at hand. That ascent may be rare. But the absolutely crucial point is that there is no
a priori or wholesale test for deciding when it will be required. A lawyer or judge must be well along in thinking
about an issue before he knows whether he will be tempted or drawn into a more theoretical argument than he
first thought or hoped.
*359 There is no inconsistency in these two pictures--of Hercules thinking from outside-in and of the mortal
lawyer reasoning from inside-out. I stress the compatibility of the two descriptions because many of the critics
of an embedded approach to law make a point of saying that real judges are not Hercules. They do not mean
only that judges are not superhuman creatures: they mean that my biographies of Hercules are beside the point.
Analogies are always dangerous--almost as dangerous as metaphors--and I hope to keep the one I am about to
make on a very short leash. But an analogy to science may help to show how an outside-in view of an intellectu-
al domain can be helpful even to those who think within it from the inside-out. We think--or at least hope--that
the body of knowledge we call, compendiously, science is very much of a seamless web. There are still seams,
and scientists and philosophers worry about those seams. But we have no trouble with the ambition that our
physics must be at least consistent with our chemistry, our cosmology, our microbiology, our metallurgy, and
our engineering. We hope, indeed, for something more, which we believe we have partly realized--not only that
each of these conventionally distinct bodies of knowledge is consistent with the others, but that they can be hier-
archically arranged so that physics, perhaps, is taken to be the most abstract, and the others can be seen as drawn
from it as progressively more concrete departments of thought. We might illustrate these theoretical and struc-
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tural ambitions by imagining, in the style of Hercules, a goddess Minerva who spent the centuries necessary to
master the biography of space and time and the fundamental forces of particle theory before she undertook to
build a single bridge. Then, when someone asked her whether a particular metal would bear a certain weight, she
could deduce the answer from her wonderful and complete theory. We understand that picture because it cap-
tures how we think about the body of our science.
But of course no scientist could even begin to follow Minerva's example. An engineer who builds a new kind
of bridge works from the inside-out. She does not know what problems she will discover until she discovers
them, and she cannot tell, at least until then, whether the problems she will inevitably discover will require her
to rethink some principle of metallurgy, or whether, if they do, her excursion into metallurgy will require her--or
someone else--to rethink particle physics. Minerva's story (grasping the possibility of that goddess's life) is one
way of appreciating the basic assumptions that in turn explain the very different engineer's story--that explain
why the ladder of theoretical ascent is always there, on the cards, even when no one is tempted to take even the
first step up it. That is what I hoped to capture, for law, in the story of Hercules. My claim, to *360 repeat, is
that legal reasoning presupposes a vast domain of justification, including very abstract principles of political
morality, that we tend to take that structure as much for granted as the engineer takes most of what she knows
for granted, but that we might be forced to reexamine some part of the structure from time to time, though we
can never be sure, in advance, when and how.
The theory-embedded view I have been trying to explain is an account of legal reasoning--of how we prop-
erly argue toward claims about what the law is. It is also an account of what truth in such claims consists in. It is
not automatically an argument about the responsibilities of judges in ordinary cases or even in constitutional
cases. Though that may be obvious, I say it here because so many people have resisted the embedded view on
the ground that it licenses judges to engage in, as they often put it, vast excursions of theory. But it does not
automatically follow from the fact I have been stressing--that the correct identification of any kind of law in-
volves an interpretative exercise and is therefore vulnerable to justificatory ascent-- that any particular kind of
official should be given responsibility to conduct that exercise on any particular kind of occasion. If the com-
munity says to a judge, The Constitution is the highest law, and your job is to say what the Constitution
means, then, as I have often tried to argue, that instruction will turn out to require a very considerable
excursion into political morality. But we do not have to instruct our judges that way. It is perfectly intelligible
to insist that our judges should not be charged with final and authoritative interpretation of the Constitution. If
you fear too great judicial power, that is what you should say. It is a serious confusion to disguise your dislike of
judges having great power, which can be remedied, in theory, by changing their jurisdictional power, as a false
theory of legal reasoning. I should make one other remark on the side of caution. I do not for a moment mean to
suggest that lawyers or judges or anyone else will agree about whatever large theoretical issues justificatory as-
cent throws their way. Of course they will not agree. That is why we have dissenting opinions and good
classroom arguments. I only mean that law is theory drenched, and that reflective lawyers understand that even
though they do not agree on what theory it is drenched in.
I turn, finally, to the critics I have been promising you. But first just a word about the spirit of our age that
prompts so many people to complain about theory. Our century's adolescence was bathed in ideology, and *361
ideology did not serve the century well. At century's end our intellectuals distrust theory perhaps more than any
earlier age has. We hear, wherever we turn, the injunctions and disclaimers of the post-modernists, the prestruc-
turalists, the deconstructionists, the critical legal students, the critical race scholars, and a thousand other bat-
talions of the anti-theory army. Some say that theory is phony, and others that it is oppression, and many that it
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is both.
I shall concentrate, however, not on the, let's say, more erudite and fantastical members of the anti-theory
horde, even within law schools, but on relatively mainstream critics. That is why I have taken the Chicago
School, and particularly Judge Posner and Professor Sunstein, as examples. The arguments that they and others
of similar opinion make against the use of moral or abstract theory in legal argument can usefully, I think, be
shepherded under the following three headings: metaphysical, pragmatic, and professional.
A. Metaphysics
First, the metaphysical. The theory-embedded approach, I said, sometimes requires lawyers and judges to
ask themselves complex issues of political morality--to try to puzzle out, for example, whether it is ever fair to
hold someone liable in damages who did not cause any harm, or to try to identify the different reasons of policy
and principle why freedom of speech deserves special protection in a democracy of equal citizenship. But there
is just now, among us, a lively and remarkably influential opinion--it is the core of what I called the intellectual
spirit of our age--that there are no objectively correct answers to such questions, that there is no objective truth
about political morality out there in the universe for lawyers or judges or anyone else to discover. On this
view, all our convictions on these matters--and more fundamental issues, including, for example, whether geno-
cide is wicked, or whether racial discrimination is unjust, or whether freedom of speech is a fundamental right at
all--are simply creatures of (now to use a phrase that Wittgenstein, please forgive him, made popular) language
games. We, in our society, have adopted, for our own purposes and out of our own needs, a particular way of
speaking according to which it is true that genocide is an abomination, racial discrimination is appalling, and
freedom of speech is special. Through that game, we have constructed the moral reality to which we appeal.
Freedom of speech is a basic right in our local language game. It is not objectively or transcendentally a basic
right: there is no such right out there in the fabric of the universe. To *362 paraphrase Judge Posner's beau
ideal, Oliver Wendell Holmes, if different societies differ sufficiently on matters of great enough importance,
one may have to destroy the other, but neither should think that its own opinions are any more valid, from the
perspective of the universe, than the opinions it hates.
Judge Posner has recently flirted with this amazing thesis. In his recent book Overcoming Law, he talks of
language games and seems warmly disposed to the view that language creates rather than aims to report our
moral universe. [FN8] In any case, that is now an extremely popular view across much contemporary academic
discourse, with the exception of philosophy. If that popular view is also persuasive, then the theory-embedded
approach to legal reasoning is profoundly misguided, and should be abandoned, for two reasons. First, legal
reasoning, according to the embedded approach, presupposes that one interpretive claim will, at least ordinarily,
be superior to its rivals, not just superior in the opinion of its proponent, but actually superior, and if there is no
objective moral truth, no such claim can be actually superior in any genuinely difficult case. Second, the case I
made for that approach is itself a moral case--lawyers, I said, must be ready to offer a theoretical justification for
their judgments because it is unfair to subject some citizens to a regime of principle the community disavows in
other circumstances--and that moral case itself claims objective status. It would not be enough, to sustain the
theoretical approach, to say that it aims at, and is justified by, not objective truth but truth according to our com-
munity's language games. Contrary to the apparent assumption of those who believe in language games, if these
exist at all in contemporary democracies, they do not unite but divide us. We disagree, if not at the most general
level of moral conviction, at almost that level, and it would be absurd to suppose that a single answer to complex
questions about compensatory justice or free speech or racial justice can form the way we all talk or think. So if
the argument that there is no objective truth about moral matters is sound, its consequence is not that there is
nevertheless a truth for our community, but rather that there is a distinct truth for each of us, and we cannot sus-
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tain a theoretical approach to adjudication on that basis.
In spite of its current popularity, however, this skeptical metaphysical thesis is not coherent. Suppose I say
to the metaphysical critic, Genocide is wicked, or Racial discrimination is unjust. He replies, Yes, that's
true, I agree with you. But please do not make the mistake of thinking that these propositions are objectively
true or that their truth is grounded in reality. You have only expressed your own opinion, with which *363 I and
others of our speech or interpretive community happen to agree. A prominent proponent of the metaphysical
thesis, Richard Rorty, recently drew that distinction in the following way. He said that, of course, as we all
know, mountains exist. They existed before human beings did, and they will probably continue to exist long
after human beings perish. But he then added that if you ask him a different question--whether mountains exist
as part of Reality As It Really Is, with very big capital letters on these phrases--he would reply no, that is ridicu-
lous. The existence of mountains is not part of Reality As It Really Is; their existence just flows from a language
game that we play. But this distinction requires that we be able to distinguish the meaning of the following two
propositions. The first is that mountains would have existed even if human beings never had. That is the state-
ment that Rorty says is true. The second is that mountains are part of Reality As It Really Is. That is the state-
ment that he says is false. But I cannot for the life of me see what sense you can make of the second proposition,
no matter how many capital letters you pack into it, that makes it mean something significantly different from
the first proposition.
If that is right, Rorty's thesis collapses. But some of you will think that we can construct a more successful
thesis if we confine our skepticism about objectivity to justice and leave mountains out. But we cannot, and for
the same reason. Suppose we say that genocide is wicked, or racial discrimination is unjust, or clitoridectomy is
appalling, or freedom of speech is essential. Then we add that each of these judgments is just our opinion; that
none of them is objectively true. We must be supposing that there is a difference in meaning between the follow-
ing two propositions. Racial discrimination is unjust. Racial discrimination is objectively unjust. But we cannot
find one. I am not going to make my argument for that claim here, because I have devoted a recent article, Ob-
jectivity and Truth: You'd Better Believe It, to the general issue of external skepticism, in which I report that ar-
gument at considerable length. [FN9]
B. Pragmatics
But though, as I said, there are echoes of the metaphysical argument in Posner's writings, he has recently
said that he would not want to rest his own recommendations on any philosophical thesis: he regards his views
of adjudication as free-standing. His views, he says, are best expressed not in any general theory, but rather in
attitudes, and he offers his most formal *364 account of those attitudes in a passage that strikes close to home.
The adjectives that I have used to characterize the pragmatic outlook-- practical, instrumental, forward-looking,
activist, empirical, skeptical, anti-dogmatic, experimental--are not the ones that leap to mind when one considers
the work of, say, Ronald Dworkin. [FN10] So Posner's attitudes are presumably meant to contrast with those
represented by the embedded approach to legal reasoning, though it is hard to grasp how from his Polonian list
of virtues. He urges us not to lock out strange ideas, to attend to the consequences of decisions, and otherwise to
conduct our intellectual and legal activities in a sage way. That is valuable advice: Dogmatism is a grievous
fault, and, if we succumb, grievously must we answer it. But this is not the stuff on which a jurisprudence is
built, and though Posner makes plain that he does not approve of my account of adjudication, he says very little
that is precise about why or how his is different.
Still, two items in his catalogue of the virtues I lack seem particularly substantial. He says, first, that the
pragmatic approach is forward-looking. It is important to distinguish, however, between two very different con-
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trasts he might have in mind. He might mean that legal reasoning should be consequential rather than deontolo-
gical, or that it should be welfarist rather than consequential in some other way. I shall explain and consider
each of these possibilities in turn. It is a central question in moral theory whether it is ever mandatory to do what
will produce a worse state of affairs--whether we must always tell the truth, for example, even when by lying we
could prevent a state of affairs worse in every way, including worse because more lies are being told. A con-
sequentialist argues that we are never morally required to act in a way that produces worse consequences, and a
deontologist that we sometimes are so required. (The argument is more complex than this description captures,
but that is enough to make my point.) If Posner has this contrast in mind, he has misunderstood the embedded
approach I defend, which is plainly consequential rather than deontological. It is consequential in its overall aim:
it aims at a structure of law and community that is egalitarian in the sense I tried to describe in Law's Empire.
[FN11] And it is consequential in detail: each interpretive legal argument is aimed to secure a state of affairs
that is superior, according to principles embedded in our practice, to alternatives. So it cannot be an objection to
the embedded approach that it is not sufficiently forward-looking if forward-looking means consequential.
*365 It is a further, almost as central, issue in moral theory whether, when we compare the goodness of
states of affairs, we should look only to people's welfare in those states of affairs--that is, only to whether and by
how much they are better-off in one than in others. A welfarist must choose some function of welfare--some way
of measuring whether and by how much a group is better-off--and the most popular such function is utilitarian-
ism. A utilitarian welfarist argues that a law or judicial decision improves the state of affairs only if people are,
in the aggregate or on average, better off as a result. Someone who rejects utilitarianism supposes that at least
sometimes one state of affairs is better than another even though people are not better off on average or in the
aggregate--because rights are better respected, perhaps, or because the situation is fairer or more just in some
other way. We might, without too much eccentricity, use forward-looking to describe the utilitarian side of
that argument, so we could say that Posner is recommending that legal reasoning and argument should be de-
voted to finding decisions that are better from the utilitarian point of view.
The embedded account of adjudication is not necessarily anti-utilitarian in detail. Someone who accepts it
might argue (as Posner, in effect, often has argued) that the best interpretation of legal practice shows the prin-
ciple of utility at its core. But neither is the embedded theory committed to utilitarianism as a guide to adjudica-
tion--and, at least in my view, much of our law, including our constitutional law, cannot be justified on utilitari-
an grounds, but, on the contrary, must presuppose principles of equality and fairness that are not utilitarian in
spirit or effect. And the overall aim of the embedded theory, which is egalitarian, is plainly not utilitarian. So if
Posner uses forward-looking to mean utilitarian, then he is justified in accusing the embedded account of not
being forward-looking enough. But in that case he owes us an argument for utilitarianism, or at least an answer
to the many serious objections that have been raised to it. [FN12] It is hardly self-evident that progress consists
in making people on average happier, or even, as Posner has sometimes suggested in the past, richer.
So we do not make much of a case for the pragmatic alternative to the embedded approach if we take the
former only to endorse utilitarian calculation. We should therefore turn to the other muscular adjective in Pos-
ner's catalog: he says that the pragmatic approach is experimental. There is a sense in which the embedded ap-
proach is plainly experimental---indeed, more not less so than its principal rivals. It recommends that adjudica-
tion be imaginative with principle, so that a judge might propose, as *366 providing the best interpretation of an
area of the law, a principle that had not been recognized in the past, as Cardozo did in MacPherson, for ex-
ample. [FN13] So if Posner means to condemn the embedded approach as insufficiently experimental, he must
have a different sense of experimental in mind: He must mean, not experimental in theory, but experimental in
place of theory. If so, then we might paraphrase his advice in this way: Lawyers and judges should try different
solutions to the problems they face to see which work, without regard to which are recommended or endorsed by
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some grand theory. They should concentrate on the practical problems before them and ask which of the avail-
able solutions would actually make things better.
Let's consider when that advice would be useful. Suppose your car has broken down on a lonely, winter
night, far from help. The engine has gone dead and it will not start. It might be very good advice to say, Don't
reflect on the physics of the internal combustion engine, just try a lot of things and see if one of them works.
For example, it may be that if you put your hat on backward, shut your eyes, and turn the key, the car will start,
and if it does, do not argue with it, just drive away. In these circumstances, Posner's advice might seem helpful.
But now suppose you are a cosmologist asking about the age of the universe. You would then be very puzzled if
Posner told you not to worry about what is really true, but only about what works. It is disconcerting to be told
not to worry about the truth when that is exactly what you are worrying about. The advice would not be danger-
ous, however, because you know what works means in this context: a cosmological thesis works if it fits well
with the rest of what we believe, and generates predictions about evidence and discoveries that turn out to be
warranted. It is, in my view, a philosophical confusion to say that a scientific proposition's being true just con-
sists in its furnishing reliable predictions, but this does no harm in practice because the two ideas, as we might
put it, march hand-in-hand: a scientist looking for reliable predictions is, at least normally, a scientist well-
placed to discover what is true.
But now suppose a very different situation: You are a judge trying to decide whether the drug companies are
really jointly and severally liable for the damage the patient suffered in spite of the fact that most of them did
not cause that damage, and you are told not to worry about what is really true but just to see what works. The ad-
vice is now entirely useless, because you have to decide what is true about a variety of issues--about, for ex-
ample, what is fair--before you can decide what works, because now--unlike the case of the stalled car or even
the elusive big bang--you have no *367 independent standard at all as to what working means. Suppose it ap-
pears, for example, that a decision for the drug companies would both promote more research and keep the price
of drugs lower than would a decision the other way. Even that would not prove that this former decision works
better than the latter, because it remains to be decided whether a decision that achieves these desirable results,
but at the cost of depriving someone injured through defective drugs of compensation, is desirable.
The emptiness of advising lawyers and judges to seek the decision that works is even more manifest when
we consider a socially more divisive issue: abortion. Many judges and lawyers, as well as philosophers, have
thought it important, in puzzling over this agonizing issue, to try to answer deeply theoretical questions about,
for example, whether a fetus has interests of its own during the first two trimesters of pregnancy. How would it
help to suppose that we should stop worrying ourselves about such difficult issues and only ask what solution
would work? Suppose we say to some devoutly pro-life group that we should be experimental and try an ex-
tremely permissive policy for a while to see whether the social tension the issue has produced would then dis-
solve. If the tension does dissolve, we might say, and people no longer seem to care about the issue, that would
prove that the permissive solution had worked for us. The pro-life group will reply, in horror, that that prospect
would not show that the permissive policy had worked; it would show, to the contrary, that it was an even more
hideous disaster because it had made the community terminally insensitive. In law and morals, particularly, the
admonition to avoid thorny questions by seeing what works is not just unhelpful. It is unintelligible.
C. Professionalism
I will call the third vehicle of attack on the embedded approach to legal reasoning the professional objection.
We're just lawyers here. We're not philosophers. Law has its own discipline, its own special craft. When you go
to law school, you are taught what it is to think like a lawyer, not a philosopher. Lawyers do not try to decide
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vast theoretical issues of moral or political theory. They decide particular issues at retail, one by one, in a more
limited and circumscribed way. Their vehicles of argument are not the grand ones of the philosophical treatise,
but the more homespun and reliable methods of close textual analysis and analogy.
The most distinguished and influential versions of this perspective are those of the great legal philosophers
of the positivist tradition: Bentham, Austin, and, above all, H.L.A. Hart, who brought that tradition to a new
*368 level of sophistication and elegance. [FN14] As I interpret him, Hart said that legal reasoning consists, in
its core, in applying special legal rules developed in a political community for that purpose, so that general the-
oretical considerations, including moral or philosophical theory, are relevant to identifying law only to the de-
gree to which those special legal rules make them relevant by explicitly incorporating theoretical standards. If
so, then legal reasoning is properly understood as embedded in more general theoretical assumptions only to the
contingent degree that conventional legal practice has so decreed, and, at least in Hart's view, convention has not
much so decreed in most contemporary legal systems. In 1994, two years after his death, a new edition of his
famous book, The Concept of Law, was published with a new Postscript on which he had been working, off and
on, for some years, but which he had never completed. That Postscript in some respects clarifies-- though in oth-
er ways raises fresh questions about--the nature of Hart's opposition to the embedded account of law. I hope to
publish a substantial response to the Postscript in the near future, but cannot begin that daunting task here.
Instead I will concentrate on less philosophical, and ostensibly more practical, versions of the professional
challenge to integrity. Several decades ago, Edward Levi, once Dean of the Chicago Law School and Attorney
General of the United States, published a thin but influential book, called An Introduction to Legal Reasoning, in
which he set out a highly professionalized account of legal argument. [FN15] He said that thinking like a lawyer
consists not in applying large structures of theory to discrete legal issues, but rather in reasoning by analogy
from one group of concrete legal decisions to another. Another Chicago Law School professor, Cass Sunstein,
has now taken up and elaborated this view, which he describes as the incompletely theorized approach to law,
and he has particularly stressed the contrast between it and the embedded view of legal reasoning. Sunstein is a
recent convert to the anti-theory camp, but he is as zealous in its pursuit as converts characteristically are.
*369 He makes a variety of claims for incomplete theory. We must take care to distinguish these, and
therefore to distinguish different responsibilities of citizens and officials. [FN17] We have, first, responsibilities
of judgment: we must each decide for ourselves what political positions and decisions to support and make.
Some of us also have, second, responsibilities of coordination: we must decide whether and how to cooperate
with others in furthering the policies or making the decisions we support. The form of that responsibility of co-
ordination depends, of course, on role: for legislators it is a matter of forming legislative alliances, for ordinary
citizens a matter of joining parties and ad hoc interest groups, and for judges in a multi-judge court, a matter of
seeking a majority for a favored decision. Some of us--officials--have a third responsibility: of exposition. Offi-
cials must often provide a formal accounting of the decision they have made. The form of that accounting, again,
is sensitive to role, and, when it takes the form of a joint document, like a legislative report or a judicial opinion
signed by more than one judge, it speaks for people whose grounds of judgment may have been different from
one another.
Sunstein proposes an incompleteness theorem with respect to each of these responsibilities. Two of these
theorems--about responsibilities of coordination and exposition--are unsurprising and, except in extreme circum-
stances, unexceptional. He uses the Rawlsian apparatus of overlapping consensus to argue that we should be
willing to work with those who favor the policies or decisions we do even when our grounds are different from
theirs. There are circumstances, he would agree, in which we should resist that advice: I have declined invita-
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tions to campaign with neo-Nazis against laws that make it a crime to declare that the Holocaust never occurred.
But in the normal circumstances of politics, including judicial decision, the advice is wise. Sunstein's second
theorem, about exposition, suggests that compromise might also be wise in preparing a joint public accounting
for an official decision, and that, too, seems good advice in many circumstances. It is of course possible for each
of the judges of a multi-judge court who make up an overlapping consensus in favor of a particular decision
in, say, the drug manufacturers' case to write a separate *370 opinion describing his own theoretical ground. But
it might well sometimes be better, for a variety of reasons, for the majority to settle on a single, more superficial,
opinion that each can join, and Sunstein is certainly right that that option should not necessarily be dismissed.
Neither of these two theorems, about incompletely theorized political coordination and incompletely theor-
ized joint exposition, contradicts the theory-embedded view of legal reasoning. But Sunstein offers a third theor-
em, about our initial responsibilities of individual judgment. The Rawlsian model of overlapping consensus sup-
poses that each party to the consensus has made an individual judgment on theoretical grounds drawn from what
Rawls calls comprehensive ethical schemes that differ from party to party. But Sunstein suggests that lawyers
and judges should abstain, even in the exercise of the responsibility of individual judgment, from venturing into
the more abstract reaches of political moral theory. He means to claim, that is, not just that political and judicial
alliances may be forged out of concrete agreement even in the face of theoretical divergence, but that the indi-
vidual judgments that produce the concrete agreement should themselves be superficial. He presents this view of
ordinary legal reasoning as in contrast to my own.
But Hercules, in Dworkin's view, shows us the hidden structure of ordinary judgments and so lays
these open to study and criticism. Of course Hercules aims at a comprehensive theory of each area of
law, whereas ordinary judges, unable to consider all lines of inquiry, must aim at a theory that is partial.
But Hercules's judgments of fit and political morality are made on the same material and have the same
character as theirs. It is these points that I am denying here. [FN18]
In fact, as we shall see, it turns out that he does not deny those points after all. [FN19] But it is important to
see what his initial statement might mean in order to see why he must finally abandon it. In Law's Empire, and
earlier in this article, I described the differences between Hercules and ordinary judges as differences in the dir-
ection and ambition of their reflections but not in the material on which they reflect or the character of the re-
flection. Though ordinary lawyers and judges reason about concrete legal issues from the inside-out, like an
engineer reasoning about the feasibility of a new structure, they can set no a priori limit to the justificatory *371
ascent into which a problem will draw them. It is the character of the inquiry itself--the problems it generates as
it unfolds--that dictates the level of theory that must be explored, and this cannot be known or stipulated in ad-
vance. A lawyer or judge need not pursue a legal inquiry beyond the point at which he may responsibly assume
that integrity has been satisfied as well as can be, and he must take into account, in deciding when it is respons-
ible to assume this, his practical circumstances, including the need for a decision and the press of other respons-
ibilities. [FN20]
If Sunstein really means to deny this account of legal reasoning, he must suppose that a lawyer or judge
should refuse to confront problems about integrity when these are manifest, or should close his mind to such
problems so that he is unaware of them. Imagine a judge forced to decide one of our sample problems. He can-
not simply appeal to precedent, either because there is no precedent on point, or because the precedents most
directly on point seem to him inconsistent with principles recognized elsewhere. Integrity asks him to continue
his inquiry, expanding its theoretical scope if and as necessary. What contrary advice would Sunstein give?
Should the judge try to decide whether the drug manufacturers are jointly liable without asking whether it is fair,
according to standards embedded in our tradition, to impose liability in the absence of any causal connection?
Should he try to decide whether women have a constitutional right to an abortion without asking whether a fetus
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is a person within the meaning of our constitutional structure, or whether the Due Process Clause is properly
used to protect fundamental liberty, or whether freedom to control reproduction through abortion is a funda-
mental liberty? If so, why should he refuse to consider these obviously pertinent issues? If not, which
theoretical issues should he decline to consider, and why are these more or differently theoretical? On what
different, and less completely theoretical, basis should he decide?
Sunstein's answer to the last of these questions is unhelpful. He offers Levi's solution: He says judges should
decide hard cases not by turning to more abstract levels of theory but in a more lawyer-like way--by analogy.
But that is a false contrast because (to paraphrase Kant) analogy without theory is blind. An analogy is a way of
stating a conclusion, not a way of reaching one, and theory must do the real work. Would holding the drug man-
ufacturers all liable be more like holding people liable who actually do cause damage or more like seeking out
people who had nothing to do with an accident at all and making them pay its costs? Is burning your own flag
more like making a speech on Hyde Park Corner or assaulting people *372 with offensive insults? Is abortion
more like infanticide or appendectomy? We cannot even begin to answer those questions without a deep expedi-
tion into theory: without asking basic questions about the connection between causation and responsibility, or
why the liberty of speech is of special importance, or how the intrinsic value of human life is best understood
and expressed. Sunstein understands this. He concedes that the method of analogy requires recourse to general
principles, but he insists that this concession does not destroy the distinction between his views and the embed-
ded account because, he says, analogy requires appeal only to mid-level principles, not to the high-level prin-
ciples that integrity might require lawyers sometimes to invoke. But this is a peculiarly troublesome distinction,
not only because mid-level is so uninformative a classification (is a political theory explaining why speech is
particularly important a mid-level theory or something higher or lower?) but also because the very idea of an a
priori constraint on legal reflection, defined as a boundary of abstraction such reflection must not cross, is so
bizarre phenomenologically as well as logically. Lawyers (like other people) discover the scope of reflection
they need to pursue in the course of inquiry, by finding where inquiry leads before a responsible resting place is
reached. They do not--cannot--accept a methodology that stipulates in advance where they must stop no matter
how inconclusive or unsatisfying their reflection to that point.
So Sunstein's appeal to analogy does not, after all, discriminate his method from the theory-embedded ac-
count he means to oppose. That makes the question why he thinks that judges should avoid theory all the more
important. But his answers to that question are also puzzling, because they actually state, not reasons why integ-
rity should be abandoned or even relaxed as a goal, but the demands of integrity itself. He calls attention, for ex-
ample, to the importance of precedent in legal practice, and fears that judges anxious to impose new theoretical
structures over the law would be too quick to overrule these. But that is a concern that Hercules noticed as well,
and that led him, precisely out of respect for integrity with that feature of our practice, to adopt what I called the
principle of local priority, [FN21] a principle that Sunstein does not mention, but which seems equivalent to
his own suggestion that judges should adopt a presumption that revisions in the law should be local. [FN22]
He also suggests that judicial commitment to large scale theories-- such as, for example, a personal autonomy
account of free speech--would rigidify law and make change more difficult. But, as *373 he also points out, the-
oretical explicitness may make it easier to identify mistakes, and may also facilitate large-scale changes when
the declared theories of the past are themselves identified as mistakes, as in the case, for example, of the preced-
ents of the Lochner era. Integrity opens the way to useful change in a variety of ways: by separating the fact of
precedent from its previously announced theoretical basis, for example, and through the device of gravitational
Sunstein's most intriguing defense of theoretical incompleteness is, however, more explicitly political.
For reasons of both policy and principle, he says, the development of large-scale theories of the right and the
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good is a democratic task, not a judicial one. These remarks should suggest the ingredients of an account of le-
gitimacy of which incompletely theorized agreements would be a part. [FN23] But it is mysterious how
democracy could generate large-scale theories of the right and the good unless judges accepted that it was
part of their responsibility to identify which such theories were latent in legislation and other political events.
There is little prospect of legislation explicitly enacting a general declaration of abstract principle: explicitly en-
acting, for example, that natural wonders have intrinsic value or that the risks imposed by beneficial enterprises
should be born by the class of people who benefit from them. It is only through interpretation of more concrete
enactments that we can identify the principles which we have together embraced. Sunstein may have in mind
only constitutional adjudication, in which judges guided by what I have called the moral reading of the Constitu-
tion might try to impose their own large-scale theories on a public that would reject them. Even so, his argu-
ment wrongly conflates adjudication and jurisdiction. [FN24] Perhaps judges should not have the responsibility
to interpret constitutional restraints--perhaps that power should have been left, in some way, more with the
people. But it hardly follows that a judge who is charged with deciding what follows from the First Amendment
should refrain from asking, as one among other questions, why a democracy would have reason to protect
speech in that special way.
As I said, Sunstein finally concedes that he is not after all offering an alternative to the embedded account.
He says, immediately after declaring that he denies my position, that he will qualify that denial later, and the
qualifications turn out to leave little if any disagreement standing. In brief, he says, introducing the qualifica-
tions, Some cases cannot be *374 decided at all without introducing a fair amount in the way of theory.
Moreover, some cases cannot be decided well without introducing theory. If a good theory is available and if
judges can be persuaded that the theory is good, there should be no taboo on its judicial acceptance. The claims
on behalf of incompletely theorized agreements [he must mean incompletely theorized individual judgments] are
presumptive rather than conclusive. [FN25] In the pages following, he describes the advantages of judges seek-
ing integrity in ways that parallel much of my own account: [FN26] He explains, for example, the importance of
not insulating even the most uncontroversial rules and practices from theoretical examination. [FN27] He then
insists that he is not arguing that general theory is always illegitimate in law. What makes sense is a more mod-
est point . . . . Judges should adopt a presumption rather than a taboo against high-level theorization. [FN28]
But the embedded account gives the same advice: it recommends that judges ascend to more abstract theory only
when they have special reason to do so.
At one point Sunstein announces advice that the embedded account does not give. He says that, Judges
should adopt a more complete theory for an area of law only if they are very sure that it is correct. [FN29] (I
would have thought, on the contrary, that we want most to be protected from judges who are very sure that
their moral theories are the correct ones.) But he cannot really mean this, because, as he had pointed out, some
cases cannot be decided at all, and others cannot be decided well, without introducing theory, which means that
judges will often have to make theoretical judgments that bring conviction, or at least greater conviction than
their rivals, even when this falls short of certainty. When, after all, is a judge right to think that he confronts a
case that cannot be decided at all or well without some theoretical reflection? Isn't it enough, to satisfy that
standard, that without theoretical reflection the judge lacks conviction as to which answer is the one that, all
things considered, best comports with his responsibilities? And isn't it then sensible for him to carry his theoret-
ical reflection to the point at which conviction is reached? If so, then there is no difference--none at all--
between the embedded view, with its demand for adjudicative integrity, and Sunstein's modestly incomplete
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I shall close by returning to the question I postponed at the beginning. We face a revolt from theory, in law
and across the rest of the intellectual landscape. Posner and Sunstein are only two examples: America's foremost
academic litigator, for example, Professor Laurence Tribe, recently announced that he had no general theory of
constitutional adjudication, and did not intend to try to develop one. [FN30] What explains this trend? Earlier I
described a form of philosophical relativism that is now popular outside academic philosophy: it holds that truth
in general, and truth about political morality in particular, is created by our practices, and that there is no truth
about these matters that is independent of a particular culture or language. The popularity of that deeply con-
fused philosophical position is not the explanation of the symptoms I described, however, but rather another
symptom to be explained.
Perhaps part of the answer lies in the great appeal, now, at the close of our century of ideological and tech-
nocratic disasters, of a becoming modesty. Intellectual modesty seems the opposite of a variety of vices: of ra-
cism and sexism, which presuppose superiority, of the ambitions of the metaphysicians and system-builders,
which seem hubristic, and above all of the elitism of mandarin intellectuals, which seems undemocratic. We
have now seen the trap in mistaking an anti-theoretical posture for modesty, however. Posner's apparently inno-
cent experimentalism ends in one of the most ambitious and technocratic absolutisms philosophers have ever de-
vised, which is utilitarian consequentialism, and Sunstein's counsel of judicial abstinence, if it were feasible at
all, would produce not more democracy but the paralysis of a process essential to democracy. Modesty is an atti-
tude, not a calling. We are modest, not when we turn our back on difficult theoretical issues about our roles and
responsibilities as people, citizens and officials, but when we confront those issues with an energy and courage
forged in a vivid sense of our own fallibility. Our reflective judgment may charge us with self-restraint in a hun-
dred dimensions, but accepting these is an act of modesty only if that judgment was itself truly and thoroughly
I agree with the critics that not all judges are trained in philosophy. But if my arguments are sound we have
no choice but to ask them to confront issues that, from time to time, are philosophical. The alternative is not
avoiding moral theory but keeping its use dark, cloaked under all the familiar legal phlogistons like the mysteri-
ous craft of lawyer-like analogical *376 reasoning. The other day, for the first time in my life I ate ostrich.
Those beasts belong in the desert and perhaps on the table, though I am not yet convinced. But they do not be-
long on the bench.
My praise of theory has so far been, you might think, negative. I have replied to critics but not said much
positive for integrity in law. So my last words hope to remind you of why integrity is so important. Every con-
temporary democracy is a divided nation, and our own democracy is particularly divided. We are divided cultur-
ally, ethnically, politically, and morally. We nevertheless aspire to live together as equals, and it seems abso-
lutely crucial to that ambition that we also aspire that the principles under which we are governed treat us as
equals. We must strive, so far as we can, not to apply one theory of liability to pharmaceutical companies and a
different one to motorists, not to embrace one theory of free speech when we are worried about pornography and
another when we are worried about flag burning. We cannot pursue that indispensable ambition unless we un-
dertake, when necessary, to ascend high enough in our collective deliberations, including our adjudicative delib-
erations, to test our progress in that direction. We must undertake that sovereign duty if we claim a rule of law
that is not just an instrument for economic achievement and social peace, but an emblem and mirror of the equal
public regard that entitles us to claim community.
[FNa1]. Professor of Jurisprudence, Oxford University, and Professor of Law and Philosophy, New York Uni-
versity. This essay is adapted from my Order of the Coif Lecture.
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[FN1]. See Sindell v. Abbott Labs., 607 P.2d 924, 935-38 (1980).
[FN2]. The Supreme Court has since decided these cases. See Washington v. Glucksberg, 117 S. Ct. 2258
[FN5]. I do not mean to revisit in this article the question of what counts as a justification, and how the interpret-
ive dimensions of fit and morality interact in producing one. See RONALD DWORKIN, LAW'S EMPIRE 44-86
[FN6]. Id. at 250-54.
[FN7]. 111 N.E. 1050 (N.Y. 1916).
[FN8]. POSNER, OVERCOMING LAW, supra note 3, at 8-10.
[FN9]. Ronald Dworkin, Objectivity and Truth: You'd Better Believe It, 25 PHIL. & PUB. AFF. 87, 89-94
[FN10]. POSNER, OVERCOMING LAW, supra note 3, at 11.
[FN11]. DWORKIN, LAW'S EMPIRE, supra note 5, at 176-224.
[FN12]. See RONALD DWORKIN, A MATTER OF PRINCIPLE 235-89 (1986) (discussing Posner and utilit-
[FN13]. See supra text accompanying note 7.
[FN15]. EDWARD H. LEVI, AN INTRODUCTION TO LEGAL REASONING (1949) (first published in 15 U.
CHI. L. REVV. 501 (1948)).
[FN16]. In 1993, Sunstein proposed a grand, Herculean project for the First Amendment. I suggest, he said,
that the First Amendment should be taken to set out a general principle of free expression, and that the contours
of that principle should not be limited to the particular understandings of those who wrote and ratified it. In a
footnote attached to that sentence he explained that he had in mind an interpretive exercise of the kind defended,
(1993). In 1996, however, in a review of my book, Freedom's Law, he attacked my ambition to produce a gener-
al principle of free expression for the First Amendment, and he wholly rejected the interpretive method he had
only recently endorsed, noting that the Supreme Court has not made a decision about 'the point' of that amend-
ment. . . . [T]he complex body of free speech law is not united by a single overarching theory. Cass R. Sun-
stein, Book Review, NEW REPUBLIC, May 13, 1996, at 35 (reviewing RONALD DWORKIN, FREEDOM'S
Review]. Youth's wisdom had all too short a season. I should add that Sunstein's review contains a surprising
number of misdescriptions of my book.
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[FN17]. SUNSTEIN, LEGAL REASONING, supra note 4, at 38-41 (distinguishing three claims for
incomplete theory).
[FN18]. Id. at 50 (citations omitted).
[FN19]. For a more detailed study of how far, if at all, Sunstein's account ends in an account different from the
one I have defended, see Alexander Kaufman, Incompletely Theorized Agreement: A Plausible Ideal for Legal
Reasoning, 85 GEO. L.J. 395 (1996).
[FN20]. DWORKIN, LAW'S EMPIRE, supra note 5, at 265.
[FN21]. Id. at 250-54.
[FN22]. See Cass R. Sunstein, Incompletely Theorized Agreements, 108 HARV. L. REVV. 1733, 1760-62
(1995); see also SUNSTEIN, LEGAL REASONING, supra note 4, at 44-46.
[FN23]. SUNSTEIN, LEGAL REASONING, supra note 4, at 53.
[FN24]. For evidence that Sunstein does not distinguish the two, see generally Sunstein, Review, supra note 16.
[FN25]. SUNSTEIN, LEGAL REASONING, supra note 4, at 54.
[FN26]. Compare id. at 54-61, with DWORKIN, LAW'S EMPIRE, supra note 5, at 176-90.
[FN27]. SUNSTEIN, LEGAL REASONING, supra note 4, at 55-56.
[FN28]. Id. at 56-57.
[FN29]. Id. at 57.
ERAL COURTS AND THE LAW 65, 72-73 (Amy Gutmann ed. 1997).
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