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IN PRAISE OF THEORY
Ronald Dworkin*

I. INTRODUCTION

I want to thank Professor Murphy very much for a really splendid

introduction. I am very grateful. I am very grateful, too, for the
opportunity to give the Order of the Coif Lecture, not just because of its
remarkable auspices, but because the lecture was the culmination of my first
visit to the American Southwest, which was spectacular. I saw everything
there was to see, sometimes in the driving rain and sometimes in the bitter
cold, but it was all marvelous.
As Professor Murphy indicated, I am going to address the role of
theory in legal reasoning and legal practice. Examples are better than
anything, so I will start with some. Suppose that a woman has taken generic
pills that turned out to have very damaging side effects. Many different
manufacturers manufactured the pills, and she does not have any idea who
made the actual pills she bought and took from one year to the next, and
therefore no idea whose pills caused her injuries. Can she sue any or all of
the drug manufacturers? Or do we insist that no one is liable in tort for
damage that he or she or it did not cause? Lawyers have argued both sides.
Some, including the California Supreme Court, have said that the drug
manufacturers are jointly and severally liable.' Others insist that none of
them is liable, and the woman's loss, sadly, is an uncompensable loss in law.
Suppose (to provide a different example) that people burn American flags by
way of political protest, and the question arises whether the government can
make that a crime consistently with the First Amendment. Again, as you
know, lawyers and others have taken different views. The Supreme Court
replied "no," but many lawyers continue to think it made a mistake of
There are thousands of other examples of deep
constitutional law.
controversies about what the law is. The Supreme Court is about to hear a
case on appeal from the Ninth Circuit in which an even more daunting
question is raised: whether the Constitution grants some right, at least in
Professor of Jurisprudence, Oxford University, and Professor of Law and Philosophy,
*
New York University. This essay is adapted from my Order of the Coif Lecture.
1.
See Sindell v. Abbott Labs., 607 P.2d 924, 935-38 (1980).

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principle, to assisted suicide. 2 Judges and lawyers and ordinary people

answer that question in sharply different ways.
Now I can state the main issue. What kind of a statement is a
statement that, for example, the drug manufacturers are in law jointly and
severally liable? Or that the First Amendment protects flag-burning? Or
that the Fourteenth Amendment grants a right to assisted suicide? These are
not straightforward historical statements, not just descriptive reports of
events that took place in the past. Nor are they just prediction: Someone
who says that the Constitution protects assisted suicide may predict (as I do)
that the Supreme Court will decide the other way. So what in the world
makes a claim, about what the law is on some matter, true or false?
Here is what I believe to be another way to put much the same
question. What is an appropriate way to reason or argue about the truth of
claims of law? Let us distinguish two very general answers to that question.
I shall call the first the "theory-embedded" (or just the "embedded")
approach. Legal reasoning means bringing to bear on particular discrete
legal problems, such as those I described, a vast network of principles of
legal derivation or of political morality. In practice, you cannot think about
the correct answer to questions of law unless you have thought through or
are ready to think through a vast over-arching theoretical system of complex
principles about the nature of tort law, for example, or about the character of
free speech in a democracy, or about the best understanding of the right to
freedom of conscience and of personal ethical decisions.
The second answer-I will call it the practical as opposed to
theoretical approach-might be put this way. All that I just said about large,
general, over-arching theories is misplaced. A judicial decision is a political
occasion, and judges and lawyers and everyone else who thinks about the
law should be directing their attention to the immediate practical problem
posed by any political occasion. The only question should be: How can we
make things better? You do need to know a lot about the consequences of
different decisions-and perhaps also some economics in order to gauge
these consequences-in order to answer that practical question helpfully. But
you do not need volumes of political philosophy.
I dare say that as I described these two approaches, you immediately
knew which one was yours. The practical approach seems so down-to-earth,
so sensible, so American. The theory-embedded approach, on the contrary,
seems abstract, metaphysical, and wholly out of place when there is real
work to be done. As you have by now gathered, I am going to attempt to
2.
The Supreme Court has since decided these cases. See Washington v. Glucksberg, 117 S.
Ct. 2258 (1997).

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argue exactly the opposite. I am going to argue that the theory-embedded

approach (which I described as its enemies do, but will re-describe in a more
qualified way in a moment) is not only attractive but inevitable. The
practical alternative, I will argue, suffers from one commanding defect: it is
wholly impractical.
I will begin by trying to describe in somewhat more detail how I
I will say
understand the theory-embedded view of legal reasoning.
something, in the course of that exposition, about Hercules and other titans.
Then I will consider two recent attacks on the theory-embedded view so
understood. The first is offered by Judge Richard Posner 3 -you know, the
lazy judge who writes a book before breakfast, decides several cases before
noon, teaches all afternoon at the Chicago Law School, and performs brain
surgery after dinner. The second is by an almost equally prolific colleague
of his, Cass Sunstein, who also teaches at the Chicago Law School.4
Together these scholars form a Chicago School of anti-theoretical, nononsense, jurisprudence. Both criticize the embedded conception of legal
reasoning and endorse the practical one, and both describe my own account
of the former as a paradigm of the errors they hope to correct. I will
therefore use their work to test my argument that we really do not have a
choice between the so-called theoretically over-arching, despicably abstract
view they denounce and the practical view they tout.
I. THE EMBEDDED VIEW
I asked a question a while ago. What kind of a claim is the claim
that drug manufacturers are (or are not) liable jointly and severally for harm
some of them did not cause? We do best, I suggest, to regard that as an
interpretive claim: it asserts that principles are embedded in our legal
practice such that, when you apply those principles to the case at hand, they
entitle (or do not entitle) the plaintiff to a decision against the drug
manufacturers as a group. The phrase "principles embedded in practice" is,
of course, a metaphor, and though metaphors have their appeal, in
jurisprudence they have too often been substitutes rather than spurs to
thought, and it is best to get rid of them as soon after they appear as
possible. My metaphor is meant to suggest 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
3.
RICHARD A. POSNER, OVERCOMING LAW (1995).
4.
CASS R. SUNSTEIN, LEGAL REASONING AND POLICAL CONFLICT (1996) [hereinafter
SUNSTEIN, LEGAL REASONING].

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case arises. Of course, lawyers will disagree about which set of principles
provides the best justification for the general shape of any considerable part
of the law. Someone might offer, for example, as providing the best
justification for the law of unintentional harm, the principle that people are
responsible for the harm they cause negligently even though unintentionally,
but not for any harm they do not cause. If we take that principle as
providing the best justification, then the drug manufacturers win and the
plaintiff loses because she cannot prove that any of them caused her any
harm. But other lawyers would argue that tort law in this area is better
justified by a very different principle-that when misfortunes happen as an
almost inevitable consequence of some valuable commercial enterprise, like
pharmaceutical research, development and marketing, then the loss should
not fall only on particular unfortunate victims, but should be distributed
among the class of those who profit from the enterprise. That principle
would presumably argue for the opposite result. Of course other pertinent
principles might be formulated, some of them more persuasive and much
more complex, but two are enough for our example.
We can also construct, for the sake of another example, two rival
principles pertinent to the flag burning case. The first holds that the special
protection our practice gives freedom of speech is justified by the
instrumental importance of that freedom in the functioning of our
democracy. The second holds that free speech practice is better justified by
the rather different principle that it is part of equal citizenship-and therefore
a principle constitutive of, rather than instrumental towards, democracythat no one may be denied the expression of a conviction or opinion or
preference simply because it is offensive. The former of these principles, I
believe, would better support a decision against a right to burn a flag, and
the latter would better support the opposite decision.
A claim of law-either that the drug victim wins or loses or that flag
burning can or cannot constitutionally be prohibited-is tantamount to the
claim, then, that one principle or another provides a better justification of
some part of legal practice. Better in what way? Better interpretivelybetter, that is, because it fits the legal practice better, and puts it in a better
light. 5 In that case, any legal argument is vulnerable to what we might call
justificatory ascent. When we raise our eyes a bit from the particular cases
that seem most on point immediately, and look at neighboring areas of the
law, or maybe even raise our eyes quite a bit and look in general, say, to
5.
I do not mean to revisit in this article the question of what counts as a justification, and
how the interpretive dimensions of fit and morality interact in producing one. See RONALD
DWORKIN, LAW'S EMPIRE 44-86 (1986).

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accident law more generally, or to constitutional law more generally, or to

our assumptions about judicial competence or responsibility more generally,
we may find a serious threat to our claim that the principle we were about to
endorse allows us to see our legal practices in their best light. For we may
discover that that principle is inconsistent with, or in some other way sorts
badly with, some other principle that we must rely on to justify some other
and larger part of the law. For example, we might be prepared to accept
that people or institutions can be held responsible for compensation in tort
without showing that their acts caused any of the injury that they are asked to
help to compensate. But someone might then press on us the possibility that
that principle has been rejected elsewhere-that it has been implicitly
rejected, for example, in those cases that deny liability on the ground that the
defendant's action was too remote in the causal chain that produced the
plaintiff's injury. Or we might come to press that possibility on ourselves.
Of course we might well be able to turn away the threat by showing how
those latter decisions can, after all, be reconciled with the principle that we
hold applies to enterprise liability. But we cannot simply ignore the threat,
because the character of the interpretive argument we are making-which we
must make to sustain a legal claim-makes any such threat relevant. We
cannot simply ignore the claim that our purported justification would in fact
show our legal practice to be unprincipled, because it appeals to a particular
principle in justifying coercion against some citizens and rejects the same
principle in denying compensation to other people. If that claim is justified,
our proposed decision would be objectionable, not just as a matter of
theoretical elegance, but also as a matter of how a community committed to
equal citizenship should govern itself.

II. HERCULES AND MINERVA

Of course I do not mean, by calling attention to the constant threat of

justificatory ascent, that the threat will always or even often materialize.
Most of the time it will not, at least in a serious and time-consuming way,
and we can cheerfully proceed on the footing of what we might call very
local priority-in effect, looking no further in our interpretive arguments than
6
the statutes or cases directly dealing with the matter at hand.
But
justificatory ascent is always, as it were, on the cards: we cannot rule it out
a priori because we never know when a legal claim that seemed pedestrian
and even indisputable may suddenly be challenged by a new and potentially
6.

Id. at 250-54.

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revolutionary attack from a higher level. I tried to capture that vulnerability

in principle in my picture of the heroic Judge Hercules, who, given his
talents, might well proceed in the opposite direction from the one I just
described. He might think, not inside-out, from more specific problems to
broader and more abstract ones, as other lawyers do, but outside-in, the
other way around. Before he sits on his first case, he could build a gigantic,
"over-arching" theory good for all seasons. He could decide all outstanding
issues of metaphysics, epistemology and ethics, and also of morality,
including political morality. He could decide what there is in the universe,
and why he is justified in thinking that is what there is; what justice and
fairness require; what freedom of speech, best understood, means, and
whether and why it is a freedom particularly worth protecting; and when and
why it is right to require people whose activity is connected to other people's
loss to compensate them for that loss. He could weave all that and
everything else into a marvelously architectonic system. When a new case
arises, he would be very well prepared. From outside-beginning, perhaps,
in the intergalactic stretches of his wonderful intellectual creation-he could
work steadily in towards the problem at hand: finding the best available
justifications for law in general, for American legal and constitutional
practice as a species of law, for constitutional interpretation, for tort, and
then, finally, for the poor woman who took too many pills and the angry
man who burned his flag.
Ordinary people, lawyers, and judges cannot do much of that. We
reason from the inside-out: we begin with discrete problems forced upon us
by occupation or responsibility or chance, and the scope of our inquiry is
severely limited, not only by the time we have available, but by the
arguments we happen actually to encounter or imagine. A judge reasoning
from the inside-out will rarely find either the time or the need to undertake
Sometimes, however, he will.
long, laborious research or argument.
Benjamin Cardozo felt that necessary in MacPherson v. Buick Motor Co.,7
and he changed the character of our law. We can all think of other decisions
in which judges found themselves drawn upward in a justificatory ascent
they may not have anticipated when they began to think about the case at
hand. That ascent may be rare. But the absolutely crucial point is that there
is no a priori or wholesale test for deciding when it will be required. A
lawyer or judge must be well along in thinking about an issue before he
knows whether he will be tempted or drawn into a more theoretical argument
than he first thought or hoped.

7.

111 N.E. 1050 (N.Y. 1916).

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There is no inconsistency in these two pictures-of Hercules thinking

from outside-in and of the mortal lawyer reasoning from inside-out. I stress
the compatibility of the two descriptions because many of the critics of an
embedded approach to law make a point of saying that real judges are not
Hercules. They do not mean only that judges are not superhuman creatures:
they mean that my biographies of Hercules are beside the point. Analogies
are always dangerous-almost as dangerous as metaphors-and I hope to
keep the one I am about to make on a very short leash. But an analogy to
science may help to show how an outside-in view of an intellectual domain
can be helpful even to those who think within it from the inside-out. We
think-or at least hope-that the body of knowledge we call, compendiously,
science is very much of a seamless web. There are still seams, and scientists
and philosophers worry about those seams. But we have no trouble with the
ambition that our physics must be at least consistent with our chemistry, our
cosmology, our microbiology, our metallurgy, and our engineering. We
hope, indeed, for something more, which we believe we have partly
realized-not only that each of these conventionally distinct bodies of
knowledge is consistent with the others, but that they can be hierarchically
arranged so that physics, perhaps, is taken to be the most abstract, and the
others can be seen as drawn from it as progressively more concrete
departments of thought. We might illustrate these theoretical and structural
ambitions by imagining, in the style of Hercules, a goddess Minerva who
spent the centuries necessary to master the biography of space and time and
the fundamental forces of particle theory before she undertook to build a
single bridge. Then, when someone asked her whether a particular metal
would bear a certain weight, she could deduce the answer from her
wonderful and complete theory. We understand that picture because it
captures how we think about the body of our science.
But of course no scientist could even begin to follow Minerva's
example. An engineer who builds a new kind of bridge works from the
inside-out. She-does not know what problems she will discover until she
discovers them, and she cannot tell, at least until then, whether the problems
she will inevitably discover will require her to rethink some principle of
metallurgy, or whether, if they do, her excursion into metallurgy will require
her-or someone else-to rethink particle physics.
Minerva's story
(grasping the possibility of that goddess's life) is one way of appreciating the
basic assumptions that in turn explain the very different engineer's storythat explain why the ladder of theoretical ascent is always there, on the
cards, even when no one is tempted to take even the first step up it. That is
what I hoped to capture, for law, in the story of Hercules. My claim, to

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repeat, is that legal reasoning presupposes a vast domain of justification,

including very abstract principles of political morality, that we tend to take
that structure as much for granted as the engineer takes most of what she
knows for granted, but that we might be forced to reexamine some part of
the structure from time to time, though we can never be sure, in advance,
when and how.
The theory-embedded view I have been trying to explain is an
account of legal reasoning-of how we properly argue toward claims about
what the law is. It is also an account of what truth in such claims consists in.
It is not automatically an argument about the responsibilities of judges in
ordinary cases or even in constitutional cases. Though that may be obvious,
I say it here because so many people have resisted the embedded view on the
ground that it licenses judges to engage in, as they often put it, vast
"excursions" of theory. But it does not automatically follow from the fact I
have been stressing-that the correct identification of any kind of law
involves an interpretative exercise and is therefore vulnerable to justificatory
ascent-that any particular kind of official should be given responsibility to
conduct that exercise on any particular kind of occasion. If the community
says to a judge, "The Constitution is the highest law, and your job is to say
what the Constitution means," then, as I have often tried to argue, that
instruction will turn out to require a very considerable "excursion" into
political morality. But we do not have to instruct our judges that way. It is
perfectly intelligible to insist that our judges should not be charged with final
and authoritative interpretation of the Constitution. If you fear too great
judicial power, that is what you should say. It is a serious confusion to
disguise your dislike of judges having great power, which can be remedied,
in theory, by changing their jurisdictional power, as a false theory of legal
reasoning. I should make one other remark on the side of caution. I do not
for a moment mean to suggest that lawyers or judges or anyone else will
agree about whatever large theoretical issues justificatory ascent throws their
way. Of course they will not agree. That is why we have dissenting
opinions and good classroom arguments. I only mean that law is theory
drenched, and that reflective lawyers understand that even though they do
not agree on what theory it is drenched in.
III. THE CHICAGO SCHOOL
I turn, finally, to the critics I have been promising you. But first just
a word about the spirit of our age that prompts so many people to complain
about theory. Our century's adolescence was bathed in ideology, and

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ideology did not serve the century well. At century's end our intellectuals
distrust theory perhaps more than any earlier age has. We hear, wherever
we turn, the injunctions and disclaimers of the post-modernists, the prestructuralists, the deconstructionists, the critical legal students, the critical
race scholars, and a thousand other battalions of the anti-theory army. Some
say that theory is phony, and others that it is oppression, and many that it is
both.
I shall concentrate, however, not on the, let's say, more erudite and
fantastical members of the anti-theory horde, even within law schools, but on
relatively mainstream critics, That is why I have taken the Chicago School,
and particularly Judge Posner and Professor Sunstein, as examples. The
arguments that they and others of similar opinion make against the use of
moral or abstract theory in legal argument can usefully, I think, be
shepherded under the following three headings: metaphysical, pragmatic,
and professional.
A. Metaphysics
First, the metaphysical. The theory-embedded approach, I said,
sometimes requires lawyers and judges to ask themselves complex issues of
political morality-to try to puzzle out, for example, whether it is ever fair to
hold someone liable in damages who did not cause any harm, or to try to
identify the different reasons of policy and principle why freedom of speech
deserves special protection in a democracy of equal citizenship. But there is
just now, among us, a lively and remarkably influential opinion-it is the
core of what I called the intellectual spirit of our age-that there are no
objectively correct answers to such questions, that there is no objective truth
about political morality "out there" in the universe for lawyers or judges or
anyone else to discover. On this view, all our convictions on these mattersand more fundamental issues, including, for example, whether genocide is
wicked, or whether racial discrimination is unjust, or whether freedom of
speech is a fundamental right at all-are simply creatures of (now to use a
phrase that Wittgenstein, please forgive him, made popular) "language
games." We, in our society, have adopted, for our own purposes and out of
our own needs, a particular way of speaking according to which it is true
that genocide is an abomination, racial discrimination is appalling, and
freedom of speech is special. Through that game, we have constructed the
"moral reality" to which we appeal. Freedom of speech is a basic right in
our local language game. It is not objectively or transcendentally a basic
right: there is no such right "out there" in the fabric of the universe. To

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paraphrase Judge Posner's beau ideal, Oliver Wendell Holmes, if different

societies differ sufficiently on matters of great enough importance, one may
have to destroy the other, but neither should think that its own opinions are
any more valid, from the perspective of the universe, than the opinions it
hates.
Judge Posner has recently flirted with this amazing thesis. In his
recent book Overcoming Law, he talks of language games and seems warmly
disposed to the view that language creates rather than aims to report our
moral universe. In any case, that is now an extremely popular view across
much contemporary academic discourse, with the exception of philosophy.
If that popular view is also persuasive, then the theory-embedded approach
to legal reasoning is profoundly misguided, and should be abandoned, for
two reasons. First, legal reasoning, according to the embedded approach,
presupposes that one interpretive claim will, at least ordinarily, be superior
to its rivals, not just superior in the opinion of its proponent, but actually
superior, and if there is no objective moral truth, no such claim can be
actually superior in any genuinely difficult case. Second, the case I made for
that approach is itself a moral case-lawyers, I said, must be ready to offer a
theoretical justification for their judgments because it is unfair to subject
some citizens to a regime of principle the community disavows in other
circumstances-and that moral case itself claims objective status. It would
not be enough, to sustain the theoretical approach, to say that it aims at, and
is justified by, not objective truth but truth according to our community's
language games. Contrary to the apparent assumption of those who believe
in language games, if these exist at all in contemporary democracies, they do
not unite but divide us. We disagree, if not at the most general level of
moral conviction, at almost that level, and it would be absurd to suppose that
a single answer to complex questions about compensatory justice or free
speech or racial justice can form the way we all talk or think. So if the
argument that there is no objective truth about moral matters is sound, its
consequence is not that there is nevertheless a truth for our community, but
rather that there is a distinct truth for each of us, and we cannot sustain a
theoretical approach to adjudication on that basis.
In spite of its current popularity, however, this skeptical
metaphysical thesis is not coherent. Suppose I say to the metaphysical critic,
"Genocide is wicked," or "Racial discrimination is unjust." He replies,
"Yes, that's true, I agree with you. But please do not make the mistake of
thinking that these propositions are objectively true or that their truth is
grounded in reality. You have only expressed your own opinion, with which
8.

POSNER, OVERCOMING LAW, supra note 3, at 8-10.

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I and others of our speech or interpretive community happen to agree." A

prominent proponent of the metaphysical thesis, Richard Rorty, recently
drew that distinction in the following way. He said that, of course, as we all
know, mountains exist. They existed before human beings did, and they will
probably continue to exist long after human beings perish. But he then
added that if you ask him a different question-whether mountains exist as
part of Reality As It Really Is, with very big capital letters on these
phrases-he would reply no, that is ridiculous. The existence of mountains
is not part of Reality As It Really Is; their existence just flows from a
language game that we play. But this distinction requires that we be able to
distinguish the meaning of the following two propositions. The first is that
mountains would have existed even if human beings never had. That is the
statement that Rorty says is true. The second is that mountains are part of
Reality As It Really Is. That is the statement that he says is false. But I
cannot for the life of me see what sense you can make of the second
proposition, no matter how many capital letters you pack into it, that makes
it mean something significantly different from the first proposition.
If that is right, Rorty's thesis collapses. But some of you will think
that we can construct a more successful thesis if we confine our skepticism
about objectivity to justice and leave mountains out. But we cannot, and for
the same reason. Suppose we say that genocide is wicked, or racial
discrimination is unjust, or clitoridectomy is appalling, or freedom of speech
is essential. Then we add that each of these judgments is just our opinion;
that none of them is objectively true. We must be supposing that there is a
difference in meaning between the following two propositions. Racial
discrimination is unjust. Racial discrimination is objectively unjust. But we
cannot find one. I am not going to make my argument for that claim here,
because I have devoted a recent article, Objectivity and Truth: You'd Better
Believe It, to the general issue of9 external skepticism, in which I report that
argument at considerable length.

B. Pragmatics
But though, as I said, there are echoes of the metaphysical argument
in Posner's writings, he has recently said that he would not want to rest his
own recommendations on any philosophical thesis: he regards his views of
adjudication as free-standing. His views, he says, are best expressed not in
any general theory, but rather in attitudes, and he offers his most formal
9.

Ronald Dworkin, Objectivity and Truth: You'd Better Believe It, 25 PHIL. & PUB. AFF.

87, 89-94 (1996).

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account of those attitudes in a passage that strikes close to home. "The

adjectives that I have used to characterize the pragmatic outlook-practical,
instrumental, forward-looking, activist, empirical, skeptical, anti-dogmatic,
experimental-are not the ones that leap to mind when one considers the
work of, say, Ronald Dworkin."' 0 So Posner's attitudes are presumably
meant to contrast with those represented by the embedded approach to legal
reasoning, though it is hard to grasp how from his Polonian list of virtues.
He urges us not to lock out strange ideas, to attend to the consequences of
decisions, and otherwise to conduct our intellectual and legal activities in a
sage way. That is valuable advice: Dogmatism is a grievous fault, and, if
we succumb, grievously must we answer it. But this is not the stuff on
which a jurisprudence is built, and though Posner makes plain that he does
not approve of my account of adjudication, he says very little that is precise
about why or how his is different.
Still, two items in his catalogue of the virtues I lack seem
particularly substantial. He says, first, that the pragmatic approach is
forward-looking. It is important to distinguish, however, between two very
different contrasts he might have in mind. He might mean that legal
reasoning should be consequential rather than deontological, or that it should
be welfarist rather than consequential in some other way. I shall explain and
consider each of these possibilities in turn. It is a central question in moral
theory whether it is ever mandatory to do what will produce a worse state of
affairs-whether we must always tell the truth, for example, even when by
lying we could prevent a state of affairs worse in every Way, including worse
because more lies are being told. A consequentialist argues that we are
never morally required to act in a way that produces worse consequences,
and a deontologist that we sometimes are so required. (The argument is
more complex than this description captures, but that is enough to make my
point.) If Posner has this contrast in mind, he has misunderstood the
embedded approach I defend, which is plainly consequential rather than
deontological. It is consequential in its overall aim: it aims at a structure of
law and community that is egalitarian in the sense I tried to describe in Law's
Empire." And it is consequential in detail: each interpretive legal argument
is aimed to secure a state of affairs that is superior, according to principles
embedded in our practice, to alternatives. So it cannot be an objection to the
embedded approach that it is not sufficiently forward-looking if forwardlooking means consequential.

10
11.

POSNER, OVERCOMING LAW, supra note 3, at 11.

DWORKIN, LAW'S EMPIRE, supra note 5, at 176-224.

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It is a further, almost as central, issue in moral theory whether, when

we compare the goodness of states of affairs, we should look only. to
people's welfare in those states of affairs-that is, only to whether and by
how much they are better-off in one than in others. A welfarist must choose
some. function of welfare-some way of measuring whether and by how
much a group is better-off-and the most popular such function is
utilitarianism. A utilitarian welfarist argues that a law or judicial decision
improves the state of affairs only if people are, in the aggregate or on
average, better off as a result. Someone who rejects utilitarianism supposes
that at least sometimes one state of affairs is better than another even though
people are not better off on average or in the aggregate-because rights are
better respected, perhaps, or because the situation is fairer or more just in
some other way. We might, without too much eccentricity, use "forwardlooking" to describe the utilitarian side of that argument, so we could say
that Posner is recommending that legal reasoning and argument should be
devoted to finding decisions that are better from the utilitarian point of view.
The embedded account of adjudication is not necessarily antiutilitarian in detail. Someone who accepts it might argue (as Posner, in
effect, often has argued) that the best interpretation of legal practice shows
the principle of utility at its core. But neither is the embedded theory
committed to utilitarianism as a guide to adjudication-and, at least in my
view, much of our law, including our constitutional law, cannot be justified
on utilitarian grounds, but, on the contrary, must presuppose principles of
equality and fairness that are not utilitarian in spirit or effect. And the
overall aim of the embedded theory, which is egalitarian, is plainly not
utilitarian. So if Posner uses "forward-looking" to mean utilitarian, then he
is justified in accusing the embedded account of not being forward-looking
enough. But in that case he owes us an argument for utilitarianism, or at
12
least an answer to the many serious objections that have been raised to it.
It is hardly self-evident that progress consists in making people on average
happier, or even, as Posner has sometimes suggested in the past, richer.
So we do not make much of a case for the pragmatic alternative to
the embedded approach if we take the former only to endorse utilitarian
calculation. We should therefore turn to the other muscular adjective in
Posner's catalog: he says that the pragmatic approach is experimental.
There is a sense in which the embedded approach is plainly experimentalindeed, more not less so than its principal rivals. It recommends that
adjudication be imaginative with principle, so that a judge might propose, as
12.

See RONALD DWORKIN, A MATTER OF PRINCIPLE 235-89 (1986) (discussing Posner and

utilitarianism).

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providing the best interpretation of an area of the law, a principle that had
not been recognized in the past, as Cardozo did in MacPherson, for
example. 13 So if Posner means to condemn the embedded approach as
insufficiently experimental, he must have a different sense of experimental in
mind: He must mean, not experimental in theory, but experimental in place
of theory. If so, then we might paraphrase his advice in this way: Lawyers
and judges should try different solutions to the problems they face to see
which work, without regard to which are recommended or endorsed by some
grand theory. They should concentrate on the practical problems before
them and ask which of the available solutions would actually make things
better.
Let's consider when that advice would be useful. Suppose your car
has broken down on a lonely, winter night, far from help. The engine has
gone dead and it will not start. It might be very good advice to say, "Don't
reflect on the physics of the internal combustion engine, just try a lot of
things and see if one of them works." For example, it may be that if you put
your hat on backward, shut your eyes, and turn the key, the car will start,
and if it does, do not argue with it, just drive away. In these circumstances,
Posner's advice might seem helpful. But now suppose you are a cosmologist
asking about the age of the universe. You would then be very puzzled if
Posner told you not to worry about what is really true, but only about what
works. It is disconcerting to be told not to worry about the truth when that is
exactly what you are worrying about. The advice would not be dangerous,
however, because you know what "works" means in this context:
a
cosmological thesis works if it fits well with the rest of what we believe, and
generates predictions about evidence and discoveries that turn out to be
warranted. It is, in my view, a philosophical confusion to say that a
scientific proposition's being true just consists in its furnishing reliable
predictions, but this does no harm in practice because the two ideas, as we
might put it, march hand-in-hand: a scientist looking for reliable predictions
is, at least normally, a scientist well-placed to discover what is true.
But now suppose a very different situation: You are a judge trying
to decide whether the drug companies are really jointly and severally liable
for the damage the patient suffered in spite of the fact that most of them did
not cause that damage, and you are told not to worry about what is really
true but just to see what works. The advice is now entirely useless, because
you have to decide what is true about a variety of issues-about, for
example, what is fair-before you can decide what "works," because nowunlike the case of the stalled car or even the elusive big bang-you have no
13.

See supra text accompanying note 7.

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independent standard at all as to what "working" means.

Suppose it
appears, for example, that a decision for the drug companies would both
promote more research and keep the price of drugs lower than would a
decision the other way. Even that would not prove that this former decision
"works" better than the latter, because it remains to be decided whether a
decision that achieves these desirable results, but at the cost of depriving
someone injured through defective drugs of compensation, is desirable.
The emptiness of advising lawyers and judges to seek the decision
that "works" is even more manifest when we consider a socially more
divisive issue: abortion. Many judges and lawyers, as well as philosophers,
have thought it important, in puzzling over this agonizing issue, to try to
answer deeply theoretical questions about, for example, whether a fetus has
interests of its own during the first two trimesters of pregnancy. How would
it help to suppose that we should stop worrying ourselves about such difficult
issues and only ask what solution would work? Suppose we say to some
devoutly pro-life group that we should be experimental and try an extremely
permissive policy for a while to see whether the social tension the issue has
produced would then dissolve. If the tension does dissolve, we might say,
and people no longer seem to care about the issue, that would prove that the
permissive solution had worked for us. The pro-life group will reply, in
horror, that that prospect would not show that the permissive policy had
worked; it would show, to the contrary, that it was an even more hideous
disaster because it had made the community terminally insensitive. In law
and morals, particularly, the admonition to avoid thorny questions by seeing
"what works" is not just unhelpful. It is unintelligible.

C. Professionalism
I will call the third vehicle of attack on the embedded approach to
legal reasoning the professional objection. "We're just lawyers here. We're
not philosophers. Law has its own discipline, its own special craft. When
you go to law school, you are taught what it is to think like a lawyer, not a
philosopher. Lawyers do not try to decide vast theoretical issues of moral or
political theory. They decide particular issues at retail, one by one, in a
more limited and circumscribed way. Their vehicles of argument are not the
grand ones of the philosophical treatise, but the more homespun and reliable
methods of close textual analysis and analogy."
The most distinguished and influential versions of this perspective
are those of the great legal philosophers of the positivist tradition: Bentham,
Austin, and, above all, H.L.A. Hart, who brought that tradition to a new

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level of sophistication and elegance. 14 As I interpret him, Hart said that

legal reasoning consists, in its core, in applying special legal rules developed
in a political community for that purpose, so that general theoretical
considerations, including moral or philosophical theory, are relevant to
identifying law only to the degree to which those special legal rules make
them relevant by explicitly incorporating theoretical standards. If so, then
legal reasoning is properly understood as embedded in more general
theoretical assumptions only to the contingent degree that conventional legal
practice has so decreed, and, at least in Hart's view, convention has not
much so decreed in most contemporary legal systems. In 1994, two years
after his death, a new edition of his famous book, The Concept of Law, was
published with a new Postscripton which he had been working, off and on,
for some years, but which he had never completed. That Postscriptin some
respects clarifies-though in other ways raises fresh questions about-the
nature of Hart's opposition to the embedded account of law. I hope to
publish a substantial response to the Postscriptin the near future, but cannot
begin that daunting task here.
Instead I will concentrate on less philosophical, and ostensibly more
practical, versions of the professional challenge to integrity. Several decades
ago, Edward Levi, once Dean of the Chicago Law School and Attorney
General of the United States, published a thin but influential book, called An
Introduction to Legal Reasoning, in which he set out a highly
professionalized account of legal argument. 15 He said that thinking like a
lawyer consists not in applying large structures of theory to discrete legal
issues, but rather in reasoning by analogy from one group of concrete legal
decisions to another.
Another Chicago Law School professor, Cass
Sunstein, has now taken up and elaborated this view, which he describes as
the "incompletely theorized" approach to law, and he has particularly
stressed the contrast between it and the embedded view of legal reasoning.
Sunstein is a recent convert to the anti-theory camp, but he is as zealous in
its pursuit as converts characteristically are.'
14.

H. L.A. HART, THE CONCEPT OF LAW (1961).

15.

EDWARD H. LEVI, AN INTRODUCTION To LEGAL REASONING (1949) (first published in

15 U. CHI. L. REV. 501 (1948)).

16. In 1993, Sunstein proposed a grand, Herculean project for the First Amendment. "I
suggest," he said, "that the First Amendment should be taken to set out a general principle of free
expression, and that the contours of that principle should not be limited to the particular
understandings of those who wrote and ratified it." In a footnote attached to that sentence he
explained that he had in mind an interpretive exercise of the kind defended, he said, by me. CASS
R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH xv, 253 (1993).

In 1996,

however, in a review of my book, Freedom's Law, he attacked my ambition to produce a general

principle of free expression for the First Amendment, and he wholly rejected the interpretive

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He makes a variety of claims for "incomplete" theory. We must

take care to distinguish these, and therefore to distinguish different
responsibilities of citizens and officials. 7 We have, first, responsibilities of
judgment: we must each decide for ourselves what political positions and
decisions to support and make.
Some of us also have, second,
responsibilities of coordination: we must decide whether and how to
cooperate with others in furthering the policies or making the decisions we
support. The form of that responsibility of coordination depends, of course,
on role: for legislators it is a matter of forming legislative alliances, for
ordinary citizens a matter of joining parties and ad hoc interest groups, and
for judges in a multi-judge court, a matter of seeking a majority for a
favored decision. Some of us-officials-have a third responsibility: of
exposition. Officials must often provide a formal accounting of the decision
they have made. The form of that accounting, again, is sensitive to role,
and, when it takes the form of a joint document, like a legislative report or a
judicial opinion signed by more than one judge, it speaks for people whose
grounds of judgment may have been different from one another.
Sunstein proposes an "incompleteness theorem" with respect to each
of these responsibilities. Two of these theorems-about responsibilities of
coordination and exposition-are unsurprising and, except in extreme
circumstances, unexceptional.
He uses the Rawlsian apparatus of
overlapping consensus to argue that we should be willing to work with those
who favor the policies or decisions we do even when our grounds are
different from theirs. There are circumstances, he would agree, in which we
should resist that advice: I have declined invitations to campaign with neoNazis against laws that make it a crime to declare that the Holocaust never
occurred. But in the normal circumstances of politics, including judicial
decision, the advice is wise. Sunstein's second theorem, about exposition,
suggests that compromise might also be wise in preparing a joint public
accounting for an official decision, and that, too, seems good advice in many
circumstances. It is of course possible for each of the judges of a multijudge court who make up an "overlapping consensus" in favor of a
particular decision in, say, the drug manufacturers' case to write a separate
method he had only recently endorsed, noting that "the Supreme Court has not made a decision
about 'the point' of that amendment. . .. [Tlhe complex body of free speech law is not united by a
single overarching theory." Cass R. Sunstein, Book Review, NEW REPUBLIC, May 13, 1996, at 35
(reviewing RONALD DWORKIN, FREEDOM'S LAW: THE MORAL READING OF THE AMERICAN
CONSTITUTION (1996)) [hereinafter Sunstein, Review]. Youth's wisdom had all too short a season.
I should add that Sunstein's review contains a surprising number of misdescriptions of my book.
17.
SUNSTEIN, LEGAL REASONING, supra note 4, at 38-41 (distinguishing three claims for
"incomplete" theory).

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opinion describing his own theoretical ground. But it might well sometimes
be better, for a variety of reasons, for the majority to settle on a single, more
superficial, opinion that each can join, and Sunstein is certainly right that
that option should not necessarily be dismissed.
Neither of these two theorems, about incompletely theorized political
coordination and incompletely theorized joint exposition, contradicts the
theory-embedded view of legal reasoning. But Sunstein offers a third
theorem, about our initial responsibilities of individual judgment. The
Rawlsian model of overlapping consensus supposes that each party to the
consensus has made an individual judgment on theoretical grounds drawn
from what Rawls calls "comprehensive" ethical schemes that differ from
party to party. But Sunstein suggests that lawyers and judges should abstain,
even in the exercise of the responsibility of individual judgment, from
venturing into the more abstract reaches of political moral theory. He means
to claim, that is, not just that political and judicial alliances may be forged
out of concrete agreement even in the face of theoretical divergence, but that
the individual judgments that produce the concrete agreement should
themselves be superficial.
He presents this view of "ordinary" legal
reasoning as in contrast to my own.
But Hercules, in Dworkin's view, "shows us the hidden structure
of" ordinary "judgments and so lays these open to study and
criticism." Of course Hercules aims at a "comprehensive theory"
of each area of law, whereas ordinary judges, unable to consider
all lines of inquiry, must aim at a theory that is "partial." But
Hercules's "judgments of fit and political morality are made on the
same material and have the same
character as theirs." It is these
18
here.
denying
am
I
that
points
In fact, as we shall see, it turns out that he does not deny those
points after all. 1 9 But it is important to see what his initial statement might
mean in order to see why he must finally abandon it. In Law's Empire, and
earlier in this article, I described the differences between Hercules and
ordinary judges as differences in the direction and ambition of their
reflections but not in the material on which they reflect or the character of
the reflection. Though "ordinary" lawyers and judges reason about concrete
legal issues from the inside-out, like an engineer reasoning about the
feasibility of a new structure, they can set no a priori limit to the justificatory
18. Id. at 50 (citations omitted).
19. For a more detailed study of how far, if at all, Sunstein's account ends in an account
different from the one I have defended, see Alexander Kaufman, Incompletely Theorized Agreement:
A Plausible Idealfor Legal Reasoning, 85 GEO. LiJ. 395 (1996).

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ascent into which a problem will draw them. It is the character of the
inquiry itself-the problems it generates as it unfolds-that dictates the level
of theory that must be explored, and this cannot be known or stipulated in
advance. A lawyer or judge need not pursue a legal inquiry beyond the
point at which he may responsibly assume that integrity has been satisfied as
well as can be, and he must take into account, in deciding when it is
responsible to assume this, his practical circumstances,
including the need
20
for a decision and the press of other responsibilities.
If Sunstein really means to "deny" this account of legal reasoning,
he must suppose that a lawyer or judge should refuse to confront problems
about integrity when these are manifest, or should close his mind to such
problems so that he is unaware of them. Imagine a judge forced to decide
one of our sample problems. He cannot simply appeal to precedent, either
because there is no precedent on point, or because the precedents most
directly on point seem to him inconsistent with principles recognized
elsewhere.
Integrity asks him to continue his inquiry, expanding its
theoretical scope if and as necessary. What contrary advice would Sunstein
give? Should the judge try to decide whether the drug manufacturers are
jointly liable without asking whether it is fair, according to standards
embedded in our tradition, to impose liability in the absence of any causal
connection? Should he try to decide whether women have a constitutional
right to an abortion without asking whether a fetus is a person within the
meaning of our constitutional structure, or whether the Due Process Clause
is properly used to protect fundamental liberty, or whether freedom to
control reproduction through abortion is a fundamental liberty? If so, why
should he refuse to consider these obviously pertinent issues? If not, which
"theoretical" issues should he decline to consider, and why are these more or
differently theoretical? On what different, and less "completely" theoretical,
basis should he decide?
Sunstein's answer to the last of these questions is unhelpful. He
offers Levi's solution: He says judges should decide hard cases not by
turning to more abstract levels of theory but in a more lawyer-like way-by
analogy. But that is a false contrast because (to paraphrase Kant) analogy
without theory is blind. An analogy is a way of stating a conclusion, not a
way of reaching one, and theory must do the real work. Would holding the
drug manufacturers all liable be more like holding people liable who actually
do cause damage or more like seeking out people who had nothing to do
with an accident at all and making them pay its costs? Is burning your own
flag more like making a speech on Hyde Park Corner or assaulting people
20.

DWORKIN, LAW'S EMPIRE, supra note 5, at 265.

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with offensive insults? Is abortion more like infanticide or appendectomy?

We cannot evenbegin to answer those questions without a deep expedition
into theory: without asking basic questions about the connection between
causation and responsibility, or why the liberty of speech is of special
importance, or how the intrinsic value -of human life is best understood and
expressed. Sunstein understands this. He concedes that the method of
analogy requires recourse to general principles, but he insists that this
concession does not destroy the distinction between his views and the
embedded account because, he says, analogy requires appeal only to "midlevel" principles, not to the high-level principles that integrity might require
lawyers sometimes to invoke.
But this is a peculiarly troublesome
distinction, not only because "mid-level" is so uninformative a classification
(is a political theory explaining why speech is particularly important a "midlevel" theory or something higher or lower?) but also because the very idea
of an a priori constraint on legal reflection, defined as a boundary of
abstraction such reflection must not cross, is so bizarre phenomenologically
as well as logically. Lawyers (like other people) discover the scope of
reflection they need to pursue in the course of inquiry, by finding where
inquiry leads before a responsible resting place is reached. They do notcannot-accept a methodology that stipulates in advance where they must
stop no matter how inconclusive or unsatisfying their reflection to that point.
So Sunstein's appeal to analogy does not, after all, discriminate his
method from the theory-embedded account he means to oppose. That makes
the question why he thinks that judges should avoid theory all the more
important. But his answers to that question are also puzzling, because they
actually state, not reasons why integrity should be abandoned or even
relaxed as a goal, but the demands of integrity itself. He calls attention, for
example, to the importance of precedent in legal practice, and fears that
judges anxious to impose new theoretical structures over the law would be
too quick to overrule these. But that is a concern that Hercules noticed as
well, and that led him, precisely out of respect for integrity with that feature
of our practice, to adopt what I called the principle of "local priority, "2 1 a
principle that Sunstein does not mention, but which seems equivalent to his
own suggestion that judges should adopt a "presumption" that revisions in
the law should be "local." 22 He also suggests that judicial commitment to
large scale theories-such as, for example, a "personal autonomy" account
of free speech-would rigidify law and make change more difficult. But, as
21.
Id. at 250-54.
22.
See Cass R. Sunstein, Incompletely Theorized Agreements, 108 HARv. L. REV. 1733,
1760-62 (1995); see also SUNSTEIN, LEGAL REASONING, supra note 4, at 44-46.

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he also points out, theoretical explicitness may make it easier to identify

mistakes, and may also facilitate large-scale changes when the declared
theories of the past are themselves identified as mistakes, as in the case, for
example, of the precedents of the Lochner era. Integrity opens the way to
useful change in a variety of ways: by separating the fact of precedent from
its previously announced theoretical basis, for example, and through the
device of gravitational force.
Sunstein's most intriguing defense of theoretical "incompleteness" is,
"For reasons of both policy and
however, more explicitly political.
principle," he says, "the development of large-scale theories of the right and
the good is a democratic task, not a judicial one. These remarks should
suggest the ingredients of an account of legitimacy of which incompletely
But it is mysterious how
theorized agreements would be a part. "2
"democracy" could generate "large-scale theories of the right and the good"
unless judges accepted that it was part of their responsibility to identify
which such theories were latent in legislation and other political events.
There is little prospect of legislation explicitly enacting a general declaration
of abstract principle: explicitly enacting, for example, that natural wonders
have intrinsic value or that the risks imposed by beneficial enterprises should
be born by the class of people who benefit from them. It is only through
interpretation of more concrete enactments that we can identify the principles
which we have together embraced. Sunstein may have in mind only
constitutional adjudication, in which judges guided by what I have called the
moral reading of the Constitution might try to impose their own "largescale" theories on a public that would reject them. Even so, his argument
wrongly conflates adjudication and jurisdiction.24 Perhaps judges should not
have the responsibility to interpret constitutional restraints-perhaps that
power should have been left, in some way, more with the people. But it
hardly follows that a judge who is charged with deciding what follows from
the First Amendment should refrain from asking, as one among other
questions, why a democracy would have reason to protect speech in that
special way.
As I said, Sunstein finally concedes that he is not after all offering an
alternative to the embedded account. He says, immediately after declaring
that he denies my position, that he will qualify that denial later, and the
qualifications turn out to leave little if any disagreement standing. "In
brief," he says, introducing the qualifications, "Some cases cannot be
23.
SUNSTEIN, LEGAL REASONING, supra note 4, at 53.
24.
For evidence that Sunstein does not distinguish the two, see generally Sunstein, Review,
supra note 16.

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decided at all without introducing a fair amount in the way of theory.

Moreover, some cases cannot be decided well without introducing theory. If
a good theory is available and if judges can be persuaded that the theory is
good, there should be no taboo on its judicial acceptance. The claims on
behalf of incompletely theorized agreements [he must mean incompletely
theorized individual judgments] are presumptive rather than conclusive.,25
In the pages following, he describes the advantages of judges seeking
integrity in ways that parallel much of my own account: 26 He explains, for
example, the importance of not insulating even the most uncontroversial
rules and practices from theoretical examination. 27 He then insists that he is
not arguing that "general theory is always illegitimate in law. What makes
sense is a more modest point .... Judges should adopt a presumption rather
than a taboo against high-level theorization." 28 But the embedded account
gives the same advice: it recommends that judges ascend to more abstract
theory only when they have special reason to do so.
At one point Sunstein announces advice that the embedded account
does not give. He says that, "Judges should adopt a more complete theory
for an area of law only if they are very sure that it is correct."29 (I would
have thought, on the contrary, that we want most to be protected from judges
who are "very sure" that their moral theories are the correct ones.) But he
cannot really mean this, because, as he had pointed out, some cases cannot
be decided at all, and others cannot be decided well, without introducing
theory, which means that judges will often have to make theoretical
judgments that bring conviction, or at least greater conviction than their
rivals, even when this falls short of certainty. When, after all, is a judge
right to think that he confronts a case that cannot be decided "at all" or
"well" without some theoretical reflection? Isn't it enough, to satisfy that
standard, that without theoretical reflection the judge lacks conviction as to
which answer is the one that, all things considered, best comports with his
responsibilities? And isn't it then sensible for him to carry his theoretical
reflection to the point at which conviction is reached? If so, then there is no
difference-none at all-between the embedded view, with its demand for
adjudicative integrity, and Sunstein's "modestly incomplete theorization."

25.
26.
27.

SUNSTEIN, LEGAL REASONING, supra note 4, at 54.

Compare id. at 54-61, with DWORKIN, LAW'S EMPIRE, supra note 5, at 176-90.
SUNSTEIN, LEGAL REASONING, supra note 4, at 55-56.

28.
29.

Id. at 56-57.
Id. at 57.

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IV. SUMMARY: IN DEFENSE OF THEORY

I shall close by returning to the question I postponed at the
beginning. We face a revolt from theory, in law and across the rest of the
intellectual landscape.
Posner and Sunstein are only two examples:
America's foremost academic litigator, for example, Professor Laurence
Tribe, recently announced that he had no general theory of constitutional
adjudication, and did not intend to try to develop one. 30 What explains this
trend? Earlier I described a form of philosophical relativism that is now
popular outside academic philosophy: it holds that truth in general, and truth
about political morality in particular, is created by our practices, and that
there is no truth about these matters that is independent of a particular
culture or language. The popularity of that deeply confused philosophical
position is not the explanation of the symptoms I described, however, but
rather another symptom to be explained.
Perhaps part of the answer lies in the great appeal, now, at the close
of our century of ideological and technocratic disasters, of a becoming
modesty. Intellectual modesty seems the opposite of a variety of vices: of
racism and sexism, which presuppose superiority, of the ambitions of the
metaphysicians and system-builders, which seem hubristic, and above all of
the elitism of mandarin intellectuals, which seems undemocratic. 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. Modesty is an attitude, not
a calling. We are modest, not when we turn our back on difficult theoretical
issues about our roles and responsibilities as people, citizens and officials,
but when we confront those issues with an energy and courage forged in a
vivid sense of our own fallibility. Our reflective judgment may charge us
with self-restraint in a hundred dimensions, but accepting these is an act of
modesty only if that judgment was itself truly and thoroughly reflective.
I agree with the critics that not all judges are trained in philosophy.
But if my arguments are sound we have no choice but to ask them to
confront issues that, from time to time, are philosophical. The alternative is
not avoiding moral theory but keeping its use dark, cloaked under all the
familiar legal phlogistons like the mysterious craft of lawyer-like analogical

30.

See

Laurence

INTERPRETATION:

H.

Tribe,

Comment,

in

FEDERAL COURTS AND THE LAW 65,

ANTONIN

SCALIA,

MATTER

72-73 (Amy Gutmann ed. 1997).

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reasoning. The other day, for the first time in my life I ate ostrich. Those
beasts belong in the desert and perhaps on the table, though I am not yet
convinced. But they do not belong on the bench.
My praise of theory has so far been, you might think, negative. I
have replied to critics but not said much positive for integrity in law. So my
last words hope to remind you of why integrity is so important. Every
contemporary democracy is a divided nation, and our own democracy is
particularly divided. We are divided culturally, ethnically, politically, and
morally. We nevertheless aspire to live together as equals, and it seems
absolutely crucial to that ambition that we also aspire that the principles
under which we are governed treat us as equals. We must strive, so far as
we can, not to apply one theory of liability to pharmaceutical companies and
a different one to motorists, not to embrace one theory of free speech when
we are worried about pornography and another when we are worried about
flag burning. We cannot pursue that indispensable ambition unless we
undertake, when necessary, to ascend high enough in our collective
deliberations, including our adjudicative deliberations, to test our progress in
that direction. We must undertake that sovereign duty if we claim a rule of
law that is not just an instrument for economic achievement and social peace,
but an emblem and mirror of the equal public regard that entitles us to claim
community.

HeinOnline -- 29 Ariz. St. L.J. 376 1997