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Legal Theory and Practice

• Date Downloaded: Sun Nov 24, 2024

• Source: Content Downloaded from HeinOnline

• Citations Available: Various citation formats provided, each with specific guidance on how to reference Ronald Dworkin's work, In Praise of Theory.

Introduction

• Ronald Dworkin expresses gratitude for the opportunity to give the Order of the Coif Lecture.

• He aims to discuss the integral role of theory within legal reasoning and legal practice.

• Cites examples to illustrate theoretical issues in law, including:- Decisions on liability of drug manufacturers for harm caused by pills.

  • Case Example: A woman harmed by generic pills from unknown manufacturers. Legal debate on whether to hold manufacturers jointly liable or deny liability altogether.

• Another example involves political protest through flag burning and cases addressing First Amendment protections.

Key Legal Questions

• Main Issue: Nature of legal claims—are they purely historical, predictive, or something else?

• Examines questions surrounding legal liability and constitutional interpretations and what constitutes truth in law.

Two Approaches to Legal Reasoning

1. Theory-Embedded Approach

   • Legal reasoning involves a complex web of legal principles derived from an overarching theoretical framework.

   • Legal practitioners must think about broader theories (e.g., tort law, free speech) when addressing specific cases.

2. Practical Approach

   • Argues attention should focus on the immediate practical problem without needing overarching theoretical frameworks.

   • Suggests a more pragmatic stance of assessing how different decisions impact the situation on the ground.

Argument for Theory-Embedded Approach

• Dworkin advocates for the theory-embedded approach as not only attractive but necessary.

• Claims practical approaches are inadequate and impractical in addressing complex legal issues.

• Emphasizes the need to embed legal theories in reasoning to address justificatory ascent, where arguments must be backed by coherent principles.

The Role of Hercules

• Introduces Hercules as an idealized judge capable of creating comprehensive theoretical structures for legal reasoning.

• Ordinary judges, by necessity, approach decisions differently (inside-out reasoning) based on immediate legal problems.

Examples of Theoretical Claims in Law

• Claims regarding legal liability or constitutional rights must always be justified by underlying principles, which can be subject to debate.

• Case Comparisons:

  • Liabilities in fantasy (e.g., whether drug companies are liable in absence of direct causation).

  • Freedom of speech (e.g., flag burning and its constitutional protections).

Justificatory Ascent

• The concern that a proposed principle may conflict with principles accepted in other legal areas is intrinsic to legal reasoning.

  • Legal practitioners need to evaluate fit and coherence across different laws and principles, urging reflection beyond immediate cases.

Confronting Theoretical Critiques

• Dworkin names Richard Posner and Cass Sunstein as primary figures representing opposition to the theory-embedded view:

  1. Posner's View: Critiques traditional legal theory as too abstract and advocates for practical, empirical approaches.

     • Pragmatic Objection: Suggests legal reasoning should focus on practical outcomes rather than lofty theoretical commitments.

  2. Sunstein's View: Advocates for an incomplete theoretical approach to avoid philosophical overreach in legal arguments.

Key Critiques of Anti-Theoretical Positions

• Dworkin addresses several critiques against adopting an embedded theory, falling under three categories:

  1. Metaphysical Critiques: Deny the existence of objective moral truths and their relevance to legal reasoning.

     • Argues against the idea of moral relativism and affirms the necessity of pursuing objective truths in judgments.

  2. Pragmatic Critiques: Suggest a focus on practicality over theory, prioritizing actionable results over philosophical dialogues.

  3. Professional Critiques: Assert that legal practitioners should focus solely on established legal norms and analogies without overarching theories.

a. Examples include Edward Levi and Sunstein promoting an analytical approach that distances itself from broader theoretical discourse.

Conclusion: Defense of Theory

• Dworkin defends the importance of theory within legal practice.

• Emphasizes the need for integrity in legal reasoning, asserting that legal decisions must reflect equality and fairness grounded in coherent theoretical justification.

• Urges judges and lawyers to engage in reflective inquiry rather than retreat into incomplete theories that simplify their responsibilities.
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The Role of Theory in Democratic Governance

• Theoretical integrity crucially influences the same legal principles being applied uniformly across different cases for societal equality.

• Advocates for using theoretical insights to unify the distinctions among various fields of law to achieve a cohesive legal philosophy.

Ronald Dworkin, in his lecture, emphasizes the critical role of theory in legal reasoning and practice. He discusses two approaches to legal reasoning: the theory-embedded approach, which integrates overarching legal theories with specific cases, and the practical approach that prioritizes immediate problems without such frameworks. Dworkin supports the theory-embedded approach, arguing it's essential for addressing complex legal issues by ensuring arguments are founded on coherent principles. He introduces the concept of Hercules as an ideal judge who embodies this approach, contrasting with ordinary judges who use practical reasoning. Dworkin critiques opposing views from figures like Richard Posner and Cass Sunstein, who favor empirical and pragmatic methods over theoretical foundations. He defends the necessity of pursuing objective moral truths in legal reasoning, arguing for integrity in legal decisions that reflect fairness and equality.