56 Pages Posted: 30 Jan 2004
Although philosophers of law display an impressive diversity of opinion, they usually agree about one thing: Their discipline is closely connected to the philosophy of language. The extent of agreement on this point can be seen in the recent flood of books and articles exploring the connections between the two fields.
In this Essay, I will argue that much of this literature is based upon a mistake. The philosophy of language generally has no jurisprudential consequences. The fact that so many philosophers of law have thought otherwise has seriously hampered progress in the field, and not just because time, effort, and paper have been wasted. Theories about the law have been accepted or rejected for the wrong reasons - on the basis of arguments about language that fail to support or undermine these theories at all.
The philosophy of language appears to have jurisprudential consequences because of a mistake, which I will call "Dworkin's fallacy" in honor of the most famous philosopher of law to have succumbed to it. This Essay will analyze the fallacy and describe its negative effects. In Part I, I will describe an example of a debate in the philosophy of language that has wrongly been thought to have jurisprudential consequences. This debate concerns realism about reference. Can words refer in ways that transcend our current beliefs? For example, can the word "law" refer to something that people do not currently believe is law? In Part II, I will provide two examples of philosophers of law - Ronald Dworkin and Michael Moore who misderive jurisprudential conclusions from this debate.
In Part III, I will describe a second example of a debate in the philosophy of language that has wrongly been thought to have jurisprudential consequences. This debate, which is inspired by Ludwig Wittgenstein's remarkable discussion of rule-following, concerns the fundamental question: How is it that we can intend to use a word in one way rather than another? How can we make "law" mean law instead of, say, Nilla Wafers? In Part IV, I will provide two examples of philosophers of law - Dennis Patterson and Margaret Radin - who misderive jurisprudential conclusions from this second debate.
Although Dworkin, Moore, Patterson, and Radin agree about little in the philosophies of language and law, Dworkin's fallacy causes each to see a relationship between the two disciplines. Given the pervasiveness of the fallacy, we should be skeptical whenever a philosopher of law relies on the philosophy of language. Chances are, she is discussing issues that are irrelevant to her true concerns. I will end the Essay with a brief discussion of three situations to which Dworkin's fallacy does not apply and in which the philosophy of language has genuine, if limited, relevance for the philosophy of law.
Suggested Citation: Suggested Citation
Green, Michael S, Dworkin's Fallacy, Or What the Philosophy of Language Can't Teach Us About the Law. Virginia Law Review, Vol. 89, pp. 1897-1952, 2003. Available at SSRN: https://ssrn.com/abstract=494821