In Praise of TheoryIntroduction

50. RD introduces the theory-embedded and the practical approaches to reasoning about the truth of legal claims. He favours the former, embedded approach, despite its seeming “abstract, metaphysical, and wholly out of place when there is real work to be done.” The practical approach turns out to be impractical.

In Praise of TheoryThe Embedded View

51t1. The embedded view suggests 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 case arises.” The implication is that legal argument is vulnerable to `justificatory ascent’.

In Praise of TheoryHercules and Minerva

Hercules and Minerva (H’s scientific analog) argue outside-in, whereas ordinary judges and scientists argue inside-out. But H and M remind that there is no a priori or wholesale test for deciding when justificatory ascent will be required. They represent the `seamless web’ that is the logical end of the justificatory ladder.

In Praise of TheoryThe Chicago School

RD distinguishes metaphysical, pragmatic, and professional legal arguments of the anti-theory people, notably Judge Posner and Professor Sunstein. The metaphysical one is the Rorty’s thesis, earlier scouted. On the pragmatics side, he is concerned with Posner’s anti-RD attitude: “practical, instrumental, forward-looking, activist, empirical, skeptical, anti-dogmatic”. The professional argument assigns priority to close textual analysis and analogy.

In Praise of Theory(continued)

Sunstein’s “incompleteness theorem” appeals to Rawls’s idea of overlapping consensus, which Dworkin doesn’t argue with. However, RD objects to the third version of the theorem, which says that lawyers and judges should curb their individual judgment about the more abstract reaches of political moral theory. This yields superficiality and incapacity to deal with hard cases. CS’s appeal to analogy doesn’t help, because analogy without theory is blind.

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In Praise of LawSummary: In Defense of Theory

“We have now seen the trap in mistaking an anti-theoretical posture for modesty, however. Posner’s apparently innocent experimentalism ends in one of the most ambitious and technocratic absolutisms philosophers have ever devised, 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.