Halpin on Dworkin's Fallacy: A Surreply

Abstract

In my recent essay, Dworkin's Fallacy, or What the Philosophy of Language Can't Teach Us about the Law, 89 Va. L. Rev. 1897 (2003), I argued that a particular confusion between linguistic and legal practices - evident most notably in the work of Ronald Dworkin - causes legal theorists to misderive jurisprudential conclusions from semantic premises. Because much, if not most, jurisprudential interest in the philosophy of language is motivated by Dworkin's fallacy, I argued that the philosophy of language does not generally have jurisprudential consequences. But in the conclusion to my essay I identified three areas where Dworkin's fallacy does not apply and the philosophy of language has genuine, albeit very limited, consequences for the philosophy of law.

In his response to this essay (Andrew Halpin, Or, Even, What the Law Can Teach The Philosophy of Language: A Response to Green's Dworkin's Fallacy, 91 Va. L. Rev. 175 (2005)), Halpin argues that I neglected a number of important connections between the two disciplines. But the connections Halpin describes are in fact those that I identified as genuine in the conclusion to my essay. What is more, Halpin appears to agree with me that these connections, although genuine, are very limited, in the sense that they yield few substantive jurisprudential consequences. Halpin sees a disagreement between us on these matters only because he misunderstands the confusion of linguistic and legal practices at issue in Dworkin's fallacy.

But Halpin does argue for a connection between the philosophies of language and law that is different from those I entertained in my essay. I was interested in whether the philosophy of language can yield conclusions in the philosophy of law. Halpin appears to agree with me that it cannot. But Halpin argues that the philosophy of law can yield conclusions in the philosophy of language. Although Halpin's argument here is suggestive, it is insufficiently detailed to allow me to come to a firm conclusion about its merits.

In my essay I offered Dennis Patterson's legal theory, with Dworkin's, as examples of Dworkin's fallacy in action. Halpin argues that Patterson's theory does not suffer from Dworkin's fallacy. I end my response to Halpin with a defense of my critique of Patterson, by expanding what was admittedly a compressed argument in the original.

Keywords: Dworkin, Semantics, Jurisprudence, Dennis Patterson, Andrew Halpin