OBJECTIVITY IN LAW AND MORALS, Brian Leiter, Cambridge University Press, 2001
42 Pages Posted: 10 Apr 2000
Two familiar features of Ronald Dworkin's theory of adjudication generate a strange predicament. On the one hand, Dworkin maintains that most cases, including most "hard" cases, have "right answers." On the other hand, Dworkin argues that to discover that right answer, judges must avail themselves of moral considerations and moral argument: a party's rights follow from the principle which explains some significant portion of the prior institutional history and provides the best justification for that institutional history as a matter of political morality. But if moral considerations figure decisively in determining the answer to a legal dispute, then there can only be a single right answer as a matter of law if there is a single right answer to the question of political morality. Yet if morality is, as many seem to think, "subjective" in some sense, then there may be as many right answers as a matter of morality as there are judges and thus, consequently, no single right answer as a matter of law.
Dworkin's response to this attack on the "objectivity" of morality asks us to distinguish between sensible, but defeasible, "internal" attacks on the objectivity of morality, from unintelligible, and irrelevant, "external" attacks on the objectivity of morality. The attacks, Dworkin argues, depend on the latter "external" perspective and, thus, reflect a misunderstanding about what is at stake in worrying about the objectivity of morality and, thus, in worrying about the objectivity of law. For the only type of objectivity that matters--namely, an "internal" objectivity--Dworkin's theory faces no predicament.
Many have found Dworkin's internal/external distinction implausible or unclear. It may be usefully recast, I argue, as involving two competing paradigms of objectivity. On what I will call the "Naturalistic Conception," objectivity in any domain must be understood on the model of the natural sciences, whose objects of study are objective in the sense of being "mind-independent" and causally efficacious (i.e., in making a causal difference to the course of experience). The "Non-Naturalistic Conception," by contrast, denies that the type of objectivity found in the natural sciences is the relevant type of objectivity to aspire to in all domains. We shall see, I think, that the grain of truth in what Dworkin is getting at in his external/internal distinction is really best understood as the difference between a Naturalistic versus a Non-Naturalistic Conception of Objectivity. Dworkin would have us, then, embrace the latter as the only type of objectivity at stake in assessing his theory of adjudication.
Dworkin's version of Non-Naturalism bears a striking similarity to John McDowell's. I conclude by arguing, however, that neither version provides an adequate account of objectivity: they fail to explain basic intuitions about objectivity (even in ethics), as well as leaving us with a picture of the "objectivity" of ethics that would, in fact, be quite congenial to the non-cognitivism that both McDowell and Dworkin purport to have left behind. If that is right, then the original predicament remains a live one for Dworkin's theory.
Suggested Citation: Suggested Citation
Leiter, Brian, Objectivity, Morality and Adjudication. OBJECTIVITY IN LAW AND MORALS, Brian Leiter, Cambridge University Press, 2001. Available at SSRN: https://ssrn.com/abstract=209311 or http://dx.doi.org/10.2139/ssrn.209311
By Brian Leiter
By Brian Leiter