59 Pages Posted: 31 Oct 2011
Date Written: October 30, 2011
Ronald Dworkin famously introduces the idealized judge, Hercules, to demonstrate how to identify one right answer for any legal problem. Since judicial disagreement makes sense, according to Dworkin, against the background of plural theories of the good, Hercules solves a particular political problem: how to avoid apathy or indecisiveness in choosing among competing theories. Dworkin's judge is supposed to stand by his or her political convictions in the face of competing, plural points of view. Choosing the one right answer is thus a method of political commitment.
My claim is that Dworkin is caught between a rock and a hard place, not once, but twice. First, the right answer thesis must avoid two sources of indecisiveness. If a legal system is too ontologically simple, then there will be multiple equally good answers, so no unique right answer. If a legal system is too ontologically complex, then incommensurability raises the possibility of no right answer. It is up to Dworkin to provide some basis for thinking that the legal system is neither too simple nor too complex, but (in the words of Goldilocks) "just right." He never does.
Dowrkin cannot identify the just-right answer because incommensurability is an essential part of pluralism. This is his second problem: Dworkin claims that, on the one hand, he thinks that there is one right answer to any given legal question, on the other, that political morality is irreducibly plural. His concept of integrity thus demand from a judge internal coherence and consistency of political and moral justifications, though it also requires external inconsistency of plural points of view. So his theory trades upon the existence of a particular sort of ontological incommensurability, one his theory of judicial choice denies.
The fact that judges can choose among incommensurable points of view is less surprising that Dworkin seems to suppose. But the fact of choice does not generate a right answer, it merely generates a final answer. The fact that a judge is, or can become, convinced that it is the only available answer speaks not to the judge's sense of integrity, but her narrowness of mind. That is not the sort of virtue we should encourage in a plural society.
Keywords: Jurisprudence, legal theory, incommensurability, decision, adjudication, philosophy, Dworkin, Finnis, Hercules, Socrates, epistemology, practical reason
Suggested Citation: Suggested Citation
Miller, Eric J., Indecisive Reasons for Action: Socrates, Not Hercules, as Judicial Ideal (October 30, 2011). Available at SSRN: https://ssrn.com/abstract=1951574 or http://dx.doi.org/10.2139/ssrn.1951574