dworkin in praise of theory

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IN PRAISE OF THEORYRonald Dworkin*

I. INTRODUCTION

I want to thank Professor Murphy very much for a really splendidintroduction. I am very grateful. I am very grateful, too, for theopportunity to give the Order of the Coif Lecture, not just because of itsremarkable auspices, but because the lecture was the culmination of my firstvisit to the American Southwest, which was spectacular. I saw everythingthere was to see, sometimes in the driving rain and sometimes in the bittercold, but it was all marvelous.

As Professor Murphy indicated, I am going to address the role oftheory in legal reasoning and legal practice. Examples are better thananything, so I will start with some. Suppose that a woman has taken genericpills that turned out to have very damaging side effects. Many differentmanufacturers manufactured the pills, and she does not have any idea whomade the actual pills she bought and took from one year to the next, andtherefore no idea whose pills caused her injuries. Can she sue any or all ofthe drug manufacturers? Or do we insist that no one is liable in tort fordamage that he or she or it did not cause? Lawyers have argued both sides.Some, including the California Supreme Court, have said that the drugmanufacturers are jointly and severally liable.' Others insist that none ofthem 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 byway of political protest, and the question arises whether the government canmake that a crime consistently with the First Amendment. Again, as youknow, lawyers and others have taken different views. The Supreme Courtreplied "no," but many lawyers continue to think it made a mistake ofconstitutional law. There are thousands of other examples of deepcontroversies about what the law is. The Supreme Court is about to hear acase on appeal from the Ninth Circuit in which an even more dauntingquestion 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 peopleanswer that question in sharply different ways.

Now I can state the main issue. What kind of a statement is astatement that, for example, the drug manufacturers are in law jointly andseverally liable? Or that the First Amendment protects flag-burning? Orthat the Fourteenth Amendment grants a right to assisted suicide? These arenot straightforward historical statements, not just descriptive reports ofevents that took place in the past. Nor are they just prediction: Someonewho 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 worldmakes 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 samequestion. What is an appropriate way to reason or argue about the truth ofclaims 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 discretelegal problems, such as those I described, a vast network of principles oflegal derivation or of political morality. In practice, you cannot think aboutthe correct answer to questions of law unless you have thought through orare ready to think through a vast over-arching theoretical system of complexprinciples about the nature of tort law, for example, or about the character offree speech in a democracy, or about the best understanding of the right tofreedom of conscience and of personal ethical decisions.

The second answer-I will call it the practical as opposed totheoretical approach-might be put this way. All that I just said about large,general, over-arching theories is misplaced. A judicial decision is a politicaloccasion, and judges and lawyers and everyone else who thinks about thelaw should be directing their attention to the immediate practical problemposed by any political occasion. The only question should be: How can wemake things better? You do need to know a lot about the consequences ofdifferent decisions-and perhaps also some economics in order to gaugethese consequences-in order to answer that practical question helpfully. Butyou do not need volumes of political philosophy.

I dare say that as I described these two approaches, you immediatelyknew 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 realwork 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-embeddedapproach (which I described as its enemies do, but will re-describe in a morequalified way in a moment) is not only attractive but inevitable. Thepractical alternative, I will argue, suffers from one commanding defect: it iswholly impractical.

I will begin by trying to describe in somewhat more detail how Iunderstand the theory-embedded view of legal reasoning. I will saysomething, in the course of that exposition, about Hercules and other titans.Then I will consider two recent attacks on the theory-embedded view sounderstood. The first is offered by Judge Richard Posner3 -you know, thelazy judge who writes a book before breakfast, decides several cases beforenoon, teaches all afternoon at the Chicago Law School, and performs brainsurgery after dinner. The second is by an almost equally prolific colleagueof his, Cass Sunstein, who also teaches at the Chicago Law School.4Together these scholars form a Chicago School of anti-theoretical, no-nonsense, jurisprudence. Both criticize the embedded conception of legalreasoning and endorse the practical one, and both describe my own accountof the former as a paradigm of the errors they hope to correct. I willtherefore use their work to test my argument that we really do not have achoice between the so-called theoretically over-arching, despicably abstractview 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 claimthat drug manufacturers are (or are not) liable jointly and severally for harmsome of them did not cause? We do best, I suggest, to regard that as aninterpretive claim: it asserts that principles are embedded in our legalpractice such that, when you apply those principles to the case at hand, theyentitle (or do not entitle) the plaintiff to a decision against the drugmanufacturers as a group. The phrase "principles embedded in practice" is,of course, a metaphor, and though metaphors have their appeal, injurisprudence they have too often been substitutes rather than spurs tothought, and it is best to get rid of them as soon after they appear aspossible. My metaphor is meant to suggest that we justify legal claims byshowing that principles that support those claims also offer the bestjustification 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 principlesprovides the best justification for the general shape of any considerable partof the law. Someone might offer, for example, as providing the bestjustification for the law of unintentional harm, the principle that people areresponsible for the harm they cause negligently even though unintentionally,but not for any harm they do not cause. If we take that principle asproviding the best justification, then the drug manufacturers win and theplaintiff loses because she cannot prove that any of them caused her anyharm. But other lawyers would argue that tort law in this area is betterjustified by a very different principle-that when misfortunes happen as analmost inevitable consequence of some valuable commercial enterprise, likepharmaceutical research, development and marketing, then the loss shouldnot fall only on particular unfortunate victims, but should be distributedamong the class of those who profit from the enterprise. That principlewould presumably argue for the opposite result. Of course other pertinentprinciples might be formulated, some of them more persuasive and muchmore complex, but two are enough for our example.

We can also construct, for the sake of another example, two rivalprinciples pertinent to the flag burning case. The first holds that the specialprotection our practice gives freedom of speech is justified by theinstrumental importance of that freedom in the functioning of ourdemocracy. The second holds that free speech practice is better justified bythe rather different principle that it is part of equal citizenship-and thereforea principle constitutive of, rather than instrumental towards, democracy-that no one may be denied the expression of a conviction or opinion orpreference simply because it is offensive. The former of these principles, Ibelieve, would better support a decision against a right to burn a flag, andthe latter would better support the opposite decision.

A claim of law-either that the drug victim wins or loses or that flagburning can or cannot constitutionally be prohibited-is tantamount to theclaim, then, that one principle or another provides a better justification ofsome part of legal practice. Better in what way? Better interpretively-better, that is, because it fits the legal practice better, and puts it in a betterlight.5 In that case, any legal argument is vulnerable to what we might calljustificatory ascent. When we raise our eyes a bit from the particular casesthat seem most on point immediately, and look at neighboring areas of thelaw, 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, andhow the interpretive dimensions of fit and morality interact in producing one. See RONALDDWORKIN, LAW'S EMPIRE 44-86 (1986).

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accident law more generally, or to constitutional law more generally, or toour assumptions about judicial competence or responsibility more generally,we may find a serious threat to our claim that the principle we were about toendorse allows us to see our legal practices in their best light. For we maydiscover that that principle is inconsistent with, or in some other way sortsbadly with, some other principle that we must rely on to justify some otherand larger part of the law. For example, we might be prepared to acceptthat people or institutions can be held responsible for compensation in tortwithout showing that their acts caused any of the injury that they are asked tohelp to compensate. But someone might then press on us the possibility thatthat principle has been rejected elsewhere-that it has been implicitlyrejected, for example, in those cases that deny liability on the ground that thedefendant's action was too remote in the causal chain that produced theplaintiff'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 howthose latter decisions can, after all, be reconciled with the principle that wehold applies to enterprise liability. But we cannot simply ignore the threat,because the character of the interpretive argument we are making-which wemust make to sustain a legal claim-makes any such threat relevant. Wecannot simply ignore the claim that our purported justification would in factshow our legal practice to be unprincipled, because it appeals to a particularprinciple in justifying coercion against some citizens and rejects the sameprinciple in denying compensation to other people. If that claim is justified,our proposed decision would be objectionable, not just as a matter oftheoretical elegance, but also as a matter of how a community committed toequal citizenship should govern itself.

II. HERCULES AND MINERVA

Of course I do not mean, by calling attention to the constant threat ofjustificatory 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 verylocal priority-in effect, looking no further in our interpretive arguments than

6the statutes or cases directly dealing with the matter at hand. Butjustificatory ascent is always, as it were, on the cards: we cannot rule it outa priori because we never know when a legal claim that seemed pedestrianand 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 vulnerabilityin principle in my picture of the heroic Judge Hercules, who, given histalents, might well proceed in the opposite direction from the one I justdescribed. He might think, not inside-out, from more specific problems tobroader and more abstract ones, as other lawyers do, but outside-in, theother 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 outstandingissues 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 andfairness require; what freedom of speech, best understood, means, andwhether and why it is a freedom particularly worth protecting; and when andwhy it is right to require people whose activity is connected to other people'sloss to compensate them for that loss. He could weave all that andeverything else into a marvelously architectonic system. When a new casearises, he would be very well prepared. From outside-beginning, perhaps,in the intergalactic stretches of his wonderful intellectual creation-he couldwork steadily in towards the problem at hand: finding the best availablejustifications for law in general, for American legal and constitutionalpractice as a species of law, for constitutional interpretation, for tort, andthen, finally, for the poor woman who took too many pills and the angryman who burned his flag.

Ordinary people, lawyers, and judges cannot do much of that. Wereason from the inside-out: we begin with discrete problems forced upon usby occupation or responsibility or chance, and the scope of our inquiry isseverely limited, not only by the time we have available, but by thearguments we happen actually to encounter or imagine. A judge reasoningfrom the inside-out will rarely find either the time or the need to undertakelong, laborious research or argument. Sometimes, however, he will.Benjamin Cardozo felt that necessary in MacPherson v. Buick Motor Co.,7and he changed the character of our law. We can all think of other decisionsin which judges found themselves drawn upward in a justificatory ascentthey may not have anticipated when they began to think about the case athand. That ascent may be rare. But the absolutely crucial point is that thereis no a priori or wholesale test for deciding when it will be required. Alawyer or judge must be well along in thinking about an issue before heknows whether he will be tempted or drawn into a more theoretical argumentthan 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 thinkingfrom outside-in and of the mortal lawyer reasoning from inside-out. I stressthe compatibility of the two descriptions because many of the critics of anembedded approach to law make a point of saying that real judges are notHercules. They do not mean only that judges are not superhuman creatures:they mean that my biographies of Hercules are beside the point. Analogiesare always dangerous-almost as dangerous as metaphors-and I hope tokeep the one I am about to make on a very short leash. But an analogy toscience may help to show how an outside-in view of an intellectual domaincan be helpful even to those who think within it from the inside-out. Wethink-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 scientistsand philosophers worry about those seams. But we have no trouble with theambition that our physics must be at least consistent with our chemistry, ourcosmology, our microbiology, our metallurgy, and our engineering. Wehope, indeed, for something more, which we believe we have partlyrealized-not only that each of these conventionally distinct bodies ofknowledge is consistent with the others, but that they can be hierarchicallyarranged so that physics, perhaps, is taken to be the most abstract, and theothers can be seen as drawn from it as progressively more concretedepartments of thought. We might illustrate these theoretical and structuralambitions by imagining, in the style of Hercules, a goddess Minerva whospent the centuries necessary to master the biography of space and time andthe fundamental forces of particle theory before she undertook to build asingle bridge. Then, when someone asked her whether a particular metalwould bear a certain weight, she could deduce the answer from herwonderful and complete theory. We understand that picture because itcaptures how we think about the body of our science.

But of course no scientist could even begin to follow Minerva'sexample. An engineer who builds a new kind of bridge works from theinside-out. She-does not know what problems she will discover until shediscovers them, and she cannot tell, at least until then, whether the problemsshe will inevitably discover will require her to rethink some principle ofmetallurgy, or whether, if they do, her excursion into metallurgy will requireher-or someone else-to rethink particle physics. Minerva's story(grasping the possibility of that goddess's life) is one way of appreciating thebasic assumptions that in turn explain the very different engineer's story-that explain why the ladder of theoretical ascent is always there, on thecards, even when no one is tempted to take even the first step up it. That iswhat 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 takethat structure as much for granted as the engineer takes most of what sheknows for granted, but that we might be forced to reexamine some part ofthe 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 anaccount of legal reasoning-of how we properly argue toward claims aboutwhat 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 inordinary 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 theground 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 Ihave been stressing-that the correct identification of any kind of lawinvolves an interpretative exercise and is therefore vulnerable to justificatoryascent-that any particular kind of official should be given responsibility toconduct that exercise on any particular kind of occasion. If the communitysays to a judge, "The Constitution is the highest law, and your job is to saywhat the Constitution means," then, as I have often tried to argue, thatinstruction will turn out to require a very considerable "excursion" intopolitical morality. But we do not have to instruct our judges that way. It isperfectly intelligible to insist that our judges should not be charged with finaland authoritative interpretation of the Constitution. If you fear too greatjudicial power, that is what you should say. It is a serious confusion todisguise your dislike of judges having great power, which can be remedied,in theory, by changing their jurisdictional power, as a false theory of legalreasoning. I should make one other remark on the side of caution. I do notfor a moment mean to suggest that lawyers or judges or anyone else willagree about whatever large theoretical issues justificatory ascent throws theirway. Of course they will not agree. That is why we have dissentingopinions and good classroom arguments. I only mean that law is theorydrenched, and that reflective lawyers understand that even though they donot agree on what theory it is drenched in.

III. THE CHICAGO SCHOOLI 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 complainabout 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 intellectualsdistrust theory perhaps more than any earlier age has. We hear, whereverwe turn, the injunctions and disclaimers of the post-modernists, the pre-structuralists, the deconstructionists, the critical legal students, the criticalrace scholars, and a thousand other battalions of the anti-theory army. Somesay that theory is phony, and others that it is oppression, and many that it isboth.

I shall concentrate, however, not on the, let's say, more erudite andfantastical members of the anti-theory horde, even within law schools, but onrelatively mainstream critics, That is why I have taken the Chicago School,and particularly Judge Posner and Professor Sunstein, as examples. Thearguments that they and others of similar opinion make against the use ofmoral or abstract theory in legal argument can usefully, I think, beshepherded 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 ofpolitical morality-to try to puzzle out, for example, whether it is ever fair tohold someone liable in damages who did not cause any harm, or to try toidentify the different reasons of policy and principle why freedom of speechdeserves special protection in a democracy of equal citizenship. But there isjust now, among us, a lively and remarkably influential opinion-it is thecore of what I called the intellectual spirit of our age-that there are noobjectively correct answers to such questions, that there is no objective truthabout political morality "out there" in the universe for lawyers or judges oranyone else to discover. On this view, all our convictions on these matters-and more fundamental issues, including, for example, whether genocide iswicked, or whether racial discrimination is unjust, or whether freedom ofspeech is a fundamental right at all-are simply creatures of (now to use aphrase that Wittgenstein, please forgive him, made popular) "languagegames." We, in our society, have adopted, for our own purposes and out ofour own needs, a particular way of speaking according to which it is truethat genocide is an abomination, racial discrimination is appalling, andfreedom of speech is special. Through that game, we have constructed the"moral reality" to which we appeal. Freedom of speech is a basic right inour local language game. It is not objectively or transcendentally a basicright: 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 differentsocieties differ sufficiently on matters of great enough importance, one mayhave to destroy the other, but neither should think that its own opinions areany more valid, from the perspective of the universe, than the opinions ithates.

Judge Posner has recently flirted with this amazing thesis. In hisrecent book Overcoming Law, he talks of language games and seems warmlydisposed to the view that language creates rather than aims to report ourmoral universe. In any case, that is now an extremely popular view acrossmuch contemporary academic discourse, with the exception of philosophy.If that popular view is also persuasive, then the theory-embedded approachto legal reasoning is profoundly misguided, and should be abandoned, fortwo reasons. First, legal reasoning, according to the embedded approach,presupposes that one interpretive claim will, at least ordinarily, be superiorto its rivals, not just superior in the opinion of its proponent, but actuallysuperior, and if there is no objective moral truth, no such claim can beactually superior in any genuinely difficult case. Second, the case I made forthat approach is itself a moral case-lawyers, I said, must be ready to offer atheoretical justification for their judgments because it is unfair to subjectsome citizens to a regime of principle the community disavows in othercircumstances-and that moral case itself claims objective status. It wouldnot be enough, to sustain the theoretical approach, to say that it aims at, andis justified by, not objective truth but truth according to our community'slanguage games. Contrary to the apparent assumption of those who believein language games, if these exist at all in contemporary democracies, they donot unite but divide us. We disagree, if not at the most general level ofmoral conviction, at almost that level, and it would be absurd to suppose thata single answer to complex questions about compensatory justice or freespeech or racial justice can form the way we all talk or think. So if theargument that there is no objective truth about moral matters is sound, itsconsequence is not that there is nevertheless a truth for our community, butrather that there is a distinct truth for each of us, and we cannot sustain atheoretical approach to adjudication on that basis.

In spite of its current popularity, however, this skepticalmetaphysical 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 ofthinking that these propositions are objectively true or that their truth isgrounded 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." Aprominent proponent of the metaphysical thesis, Richard Rorty, recentlydrew that distinction in the following way. He said that, of course, as we allknow, mountains exist. They existed before human beings did, and they willprobably continue to exist long after human beings perish. But he thenadded that if you ask him a different question-whether mountains exist aspart of Reality As It Really Is, with very big capital letters on thesephrases-he would reply no, that is ridiculous. The existence of mountainsis not part of Reality As It Really Is; their existence just flows from alanguage game that we play. But this distinction requires that we be able todistinguish the meaning of the following two propositions. The first is thatmountains would have existed even if human beings never had. That is thestatement that Rorty says is true. The second is that mountains are part ofReality As It Really Is. That is the statement that he says is false. But Icannot for the life of me see what sense you can make of the secondproposition, no matter how many capital letters you pack into it, that makesit mean something significantly different from the first proposition.

If that is right, Rorty's thesis collapses. But some of you will thinkthat we can construct a more successful thesis if we confine our skepticismabout objectivity to justice and leave mountains out. But we cannot, and forthe same reason. Suppose we say that genocide is wicked, or racialdiscrimination is unjust, or clitoridectomy is appalling, or freedom of speechis 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 adifference in meaning between the following two propositions. Racialdiscrimination is unjust. Racial discrimination is objectively unjust. But wecannot 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 BetterBelieve It, to the general issue of external skepticism, in which I report thatargument at considerable length.

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B. Pragmatics

But though, as I said, there are echoes of the metaphysical argumentin Posner's writings, he has recently said that he would not want to rest hisown recommendations on any philosophical thesis: he regards his views ofadjudication as free-standing. His views, he says, are best expressed not inany 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. "Theadjectives 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 thework of, say, Ronald Dworkin."' 0 So Posner's attitudes are presumablymeant to contrast with those represented by the embedded approach to legalreasoning, 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 ofdecisions, and otherwise to conduct our intellectual and legal activities in asage way. That is valuable advice: Dogmatism is a grievous fault, and, ifwe succumb, grievously must we answer it. But this is not the stuff onwhich a jurisprudence is built, and though Posner makes plain that he doesnot approve of my account of adjudication, he says very little that is preciseabout why or how his is different.

Still, two items in his catalogue of the virtues I lack seemparticularly substantial. He says, first, that the pragmatic approach isforward-looking. It is important to distinguish, however, between two verydifferent contrasts he might have in mind. He might mean that legalreasoning should be consequential rather than deontological, or that it shouldbe welfarist rather than consequential in some other way. I shall explain andconsider each of these possibilities in turn. It is a central question in moraltheory whether it is ever mandatory to do what will produce a worse state ofaffairs-whether we must always tell the truth, for example, even when bylying we could prevent a state of affairs worse in every Way, including worsebecause more lies are being told. A consequentialist argues that we arenever morally required to act in a way that produces worse consequences,and a deontologist that we sometimes are so required. (The argument ismore complex than this description captures, but that is enough to make mypoint.) If Posner has this contrast in mind, he has misunderstood theembedded approach I defend, which is plainly consequential rather thandeontological. It is consequential in its overall aim: it aims at a structure oflaw and community that is egalitarian in the sense I tried to describe in Law'sEmpire." And it is consequential in detail: each interpretive legal argumentis aimed to secure a state of affairs that is superior, according to principlesembedded in our practice, to alternatives. So it cannot be an objection to theembedded approach that it is not sufficiently forward-looking if forward-looking means consequential.

10 POSNER, OVERCOMING LAW, supra note 3, at 11.11. 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, whenwe compare the goodness of states of affairs, we should look only. topeople's welfare in those states of affairs-that is, only to whether and byhow much they are better-off in one than in others. A welfarist must choosesome. function of welfare-some way of measuring whether and by howmuch a group is better-off-and the most popular such function isutilitarianism. A utilitarian welfarist argues that a law or judicial decisionimproves the state of affairs only if people are, in the aggregate or onaverage, better off as a result. Someone who rejects utilitarianism supposesthat at least sometimes one state of affairs is better than another even thoughpeople are not better off on average or in the aggregate-because rights arebetter respected, perhaps, or because the situation is fairer or more just insome other way. We might, without too much eccentricity, use "forward-looking" to describe the utilitarian side of that argument, so we could saythat Posner is recommending that legal reasoning and argument should bedevoted to finding decisions that are better from the utilitarian point of view.

The embedded account of adjudication is not necessarily anti-utilitarian in detail. Someone who accepts it might argue (as Posner, ineffect, often has argued) that the best interpretation of legal practice showsthe principle of utility at its core. But neither is the embedded theorycommitted to utilitarianism as a guide to adjudication-and, at least in myview, much of our law, including our constitutional law, cannot be justifiedon utilitarian grounds, but, on the contrary, must presuppose principles ofequality and fairness that are not utilitarian in spirit or effect. And theoverall aim of the embedded theory, which is egalitarian, is plainly notutilitarian. So if Posner uses "forward-looking" to mean utilitarian, then heis justified in accusing the embedded account of not being forward-lookingenough. But in that case he owes us an argument for utilitarianism, or atleast an answer to the many serious objections that have been raised to it. 12It is hardly self-evident that progress consists in making people on averagehappier, or even, as Posner has sometimes suggested in the past, richer.

So we do not make much of a case for the pragmatic alternative tothe embedded approach if we take the former only to endorse utilitariancalculation. We should therefore turn to the other muscular adjective inPosner's catalog: he says that the pragmatic approach is experimental.There is a sense in which the embedded approach is plainly experimental-indeed, more not less so than its principal rivals. It recommends thatadjudication be imaginative with principle, so that a judge might propose, as

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

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providing the best interpretation of an area of the law, a principle that hadnot been recognized in the past, as Cardozo did in MacPherson, forexample. 13 So if Posner means to condemn the embedded approach asinsufficiently experimental, he must have a different sense of experimental inmind: He must mean, not experimental in theory, but experimental in placeof theory. If so, then we might paraphrase his advice in this way: Lawyersand judges should try different solutions to the problems they face to seewhich work, without regard to which are recommended or endorsed by somegrand theory. They should concentrate on the practical problems beforethem and ask which of the available solutions would actually make thingsbetter.

Let's consider when that advice would be useful. Suppose your carhas broken down on a lonely, winter night, far from help. The engine hasgone dead and it will not start. It might be very good advice to say, "Don'treflect on the physics of the internal combustion engine, just try a lot ofthings and see if one of them works." For example, it may be that if you putyour 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 cosmologistasking about the age of the universe. You would then be very puzzled ifPosner told you not to worry about what is really true, but only about whatworks. It is disconcerting to be told not to worry about the truth when that isexactly what you are worrying about. The advice would not be dangerous,however, because you know what "works" means in this context: acosmological thesis works if it fits well with the rest of what we believe, andgenerates predictions about evidence and discoveries that turn out to bewarranted. It is, in my view, a philosophical confusion to say that ascientific proposition's being true just consists in its furnishing reliablepredictions, but this does no harm in practice because the two ideas, as wemight put it, march hand-in-hand: a scientist looking for reliable predictionsis, at least normally, a scientist well-placed to discover what is true.

But now suppose a very different situation: You are a judge tryingto decide whether the drug companies are really jointly and severally liablefor the damage the patient suffered in spite of the fact that most of them didnot cause that damage, and you are told not to worry about what is reallytrue but just to see what works. The advice is now entirely useless, becauseyou have to decide what is true about a variety of issues-about, forexample, what is fair-before you can decide what "works," because now-unlike 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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IN PRAISE OF THEORY

independent standard at all as to what "working" means. Suppose itappears, for example, that a decision for the drug companies would bothpromote more research and keep the price of drugs lower than would adecision the other way. Even that would not prove that this former decision"works" better than the latter, because it remains to be decided whether adecision that achieves these desirable results, but at the cost of deprivingsomeone injured through defective drugs of compensation, is desirable.

The emptiness of advising lawyers and judges to seek the decisionthat "works" is even more manifest when we consider a socially moredivisive issue: abortion. Many judges and lawyers, as well as philosophers,have thought it important, in puzzling over this agonizing issue, to try toanswer deeply theoretical questions about, for example, whether a fetus hasinterests of its own during the first two trimesters of pregnancy. How wouldit help to suppose that we should stop worrying ourselves about such difficultissues and only ask what solution would work? Suppose we say to somedevoutly pro-life group that we should be experimental and try an extremelypermissive policy for a while to see whether the social tension the issue hasproduced 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 thepermissive solution had worked for us. The pro-life group will reply, inhorror, that that prospect would not show that the permissive policy hadworked; it would show, to the contrary, that it was an even more hideousdisaster because it had made the community terminally insensitive. In lawand morals, particularly, the admonition to avoid thorny questions by seeing"what works" is not just unhelpful. It is unintelligible.

C. ProfessionalismI will call the third vehicle of attack on the embedded approach to

legal reasoning the professional objection. "We're just lawyers here. We'renot philosophers. Law has its own discipline, its own special craft. Whenyou go to law school, you are taught what it is to think like a lawyer, not aphilosopher. Lawyers do not try to decide vast theoretical issues of moral orpolitical theory. They decide particular issues at retail, one by one, in amore limited and circumscribed way. Their vehicles of argument are not thegrand ones of the philosophical treatise, but the more homespun and reliablemethods of close textual analysis and analogy."

The most distinguished and influential versions of this perspectiveare 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 thatlegal reasoning consists, in its core, in applying special legal rules developedin a political community for that purpose, so that general theoreticalconsiderations, including moral or philosophical theory, are relevant toidentifying law only to the degree to which those special legal rules makethem relevant by explicitly incorporating theoretical standards. If so, thenlegal reasoning is properly understood as embedded in more generaltheoretical assumptions only to the contingent degree that conventional legalpractice has so decreed, and, at least in Hart's view, convention has notmuch so decreed in most contemporary legal systems. In 1994, two yearsafter his death, a new edition of his famous book, The Concept of Law, waspublished with a new Postscript on which he had been working, off and on,for some years, but which he had never completed. That Postscript in somerespects clarifies-though in other ways raises fresh questions about-thenature of Hart's opposition to the embedded account of law. I hope topublish a substantial response to the Postscript in the near future, but cannotbegin that daunting task here.

Instead I will concentrate on less philosophical, and ostensibly morepractical, versions of the professional challenge to integrity. Several decadesago, Edward Levi, once Dean of the Chicago Law School and AttorneyGeneral of the United States, published a thin but influential book, called AnIntroduction to Legal Reasoning, in which he set out a highlyprofessionalized account of legal argument. 15 He said that thinking like alawyer consists not in applying large structures of theory to discrete legalissues, but rather in reasoning by analogy from one group of concrete legaldecisions to another. Another Chicago Law School professor, CassSunstein, has now taken up and elaborated this view, which he describes asthe "incompletely theorized" approach to law, and he has particularlystressed 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 inits 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 freeexpression, and that the contours of that principle should not be limited to the particularunderstandings of those who wrote and ratified it." In a footnote attached to that sentence heexplained that he had in mind an interpretive exercise of the kind defended, he said, by me. CASSR. 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 generalprinciple of free expression for the First Amendment, and he wholly rejected the interpretive

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IN PRAISE OF THEORY

He makes a variety of claims for "incomplete" theory. We musttake care to distinguish these, and therefore to distinguish differentresponsibilities of citizens and officials. 7 We have, first, responsibilities ofjudgment: we must each decide for ourselves what political positions anddecisions to support and make. Some of us also have, second,responsibilities of coordination: we must decide whether and how tocooperate with others in furthering the policies or making the decisions wesupport. The form of that responsibility of coordination depends, of course,on role: for legislators it is a matter of forming legislative alliances, forordinary citizens a matter of joining parties and ad hoc interest groups, andfor judges in a multi-judge court, a matter of seeking a majority for afavored decision. Some of us-officials-have a third responsibility: ofexposition. Officials must often provide a formal accounting of the decisionthey 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 ajudicial opinion signed by more than one judge, it speaks for people whosegrounds of judgment may have been different from one another.

Sunstein proposes an "incompleteness theorem" with respect to eachof these responsibilities. Two of these theorems-about responsibilities ofcoordination and exposition-are unsurprising and, except in extremecircumstances, unexceptional. He uses the Rawlsian apparatus ofoverlapping consensus to argue that we should be willing to work with thosewho favor the policies or decisions we do even when our grounds aredifferent from theirs. There are circumstances, he would agree, in which weshould resist that advice: I have declined invitations to campaign with neo-Nazis against laws that make it a crime to declare that the Holocaust neveroccurred. But in the normal circumstances of politics, including judicialdecision, the advice is wise. Sunstein's second theorem, about exposition,suggests that compromise might also be wise in preparing a joint publicaccounting for an official decision, and that, too, seems good advice in manycircumstances. It is of course possible for each of the judges of a multi-judge court who make up an "overlapping consensus" in favor of aparticular 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 decisionabout 'the point' of that amendment. . .. [Tlhe complex body of free speech law is not united by asingle 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 AMERICANCONSTITUTION (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 sometimesbe better, for a variety of reasons, for the majority to settle on a single, moresuperficial, opinion that each can join, and Sunstein is certainly right thatthat option should not necessarily be dismissed.

Neither of these two theorems, about incompletely theorized politicalcoordination and incompletely theorized joint exposition, contradicts thetheory-embedded view of legal reasoning. But Sunstein offers a thirdtheorem, about our initial responsibilities of individual judgment. TheRawlsian model of overlapping consensus supposes that each party to theconsensus has made an individual judgment on theoretical grounds drawnfrom what Rawls calls "comprehensive" ethical schemes that differ fromparty to party. But Sunstein suggests that lawyers and judges should abstain,even in the exercise of the responsibility of individual judgment, fromventuring into the more abstract reaches of political moral theory. He meansto claim, that is, not just that political and judicial alliances may be forgedout of concrete agreement even in the face of theoretical divergence, but thatthe individual judgments that produce the concrete agreement shouldthemselves be superficial. He presents this view of "ordinary" legalreasoning as in contrast to my own.

But Hercules, in Dworkin's view, "shows us the hidden structureof" ordinary "judgments and so lays these open to study andcriticism." Of course Hercules aims at a "comprehensive theory"of each area of law, whereas ordinary judges, unable to considerall lines of inquiry, must aim at a theory that is "partial." ButHercules's "judgments of fit and political morality are made on thesame material and have the same character as theirs." It is thesepoints that I am denying here.

18

In fact, as we shall see, it turns out that he does not deny thosepoints after all.19 But it is important to see what his initial statement mightmean in order to see why he must finally abandon it. In Law's Empire, andearlier in this article, I described the differences between Hercules andordinary judges as differences in the direction and ambition of theirreflections but not in the material on which they reflect or the character ofthe reflection. Though "ordinary" lawyers and judges reason about concretelegal issues from the inside-out, like an engineer reasoning about thefeasibility 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 Ideal for Legal Reasoning, 85 GEO. LiJ. 395 (1996).

370 [Ariz. St. L.J.


IN PRAISE OF THEORY

ascent into which a problem will draw them. It is the character of theinquiry itself-the problems it generates as it unfolds-that dictates the levelof theory that must be explored, and this cannot be known or stipulated inadvance. A lawyer or judge need not pursue a legal inquiry beyond thepoint at which he may responsibly assume that integrity has been satisfied aswell as can be, and he must take into account, in deciding when it isresponsible to assume this, his practical circumstances, including the needfor a decision and the press of other responsibilities.

20

If Sunstein really means to "deny" this account of legal reasoning,he must suppose that a lawyer or judge should refuse to confront problemsabout integrity when these are manifest, or should close his mind to suchproblems so that he is unaware of them. Imagine a judge forced to decideone of our sample problems. He cannot simply appeal to precedent, eitherbecause there is no precedent on point, or because the precedents mostdirectly on point seem to him inconsistent with principles recognizedelsewhere. Integrity asks him to continue his inquiry, expanding itstheoretical scope if and as necessary. What contrary advice would Sunsteingive? Should the judge try to decide whether the drug manufacturers arejointly liable without asking whether it is fair, according to standardsembedded in our tradition, to impose liability in the absence of any causalconnection? Should he try to decide whether women have a constitutionalright to an abortion without asking whether a fetus is a person within themeaning of our constitutional structure, or whether the Due Process Clauseis properly used to protect fundamental liberty, or whether freedom tocontrol reproduction through abortion is a fundamental liberty? If so, whyshould he refuse to consider these obviously pertinent issues? If not, which"theoretical" issues should he decline to consider, and why are these more ordifferently theoretical? On what different, and less "completely" theoretical,basis should he decide?

Sunstein's answer to the last of these questions is unhelpful. Heoffers Levi's solution: He says judges should decide hard cases not byturning to more abstract levels of theory but in a more lawyer-like way-byanalogy. But that is a false contrast because (to paraphrase Kant) analogywithout theory is blind. An analogy is a way of stating a conclusion, not away of reaching one, and theory must do the real work. Would holding thedrug manufacturers all liable be more like holding people liable who actuallydo cause damage or more like seeking out people who had nothing to dowith an accident at all and making them pay its costs? Is burning your ownflag 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 expeditioninto theory: without asking basic questions about the connection betweencausation and responsibility, or why the liberty of speech is of specialimportance, or how the intrinsic value -of human life is best understood andexpressed. Sunstein understands this. He concedes that the method ofanalogy requires recourse to general principles, but he insists that thisconcession does not destroy the distinction between his views and theembedded account because, he says, analogy requires appeal only to "mid-level" principles, not to the high-level principles that integrity might requirelawyers sometimes to invoke. But this is a peculiarly troublesomedistinction, not only because "mid-level" is so uninformative a classification(is a political theory explaining why speech is particularly important a "mid-level" theory or something higher or lower?) but also because the very ideaof an a priori constraint on legal reflection, defined as a boundary ofabstraction such reflection must not cross, is so bizarre phenomenologicallyas well as logically. Lawyers (like other people) discover the scope ofreflection they need to pursue in the course of inquiry, by finding whereinquiry leads before a responsible resting place is reached. They do not-cannot-accept a methodology that stipulates in advance where they muststop no matter how inconclusive or unsatisfying their reflection to that point.

So Sunstein's appeal to analogy does not, after all, discriminate hismethod from the theory-embedded account he means to oppose. That makesthe question why he thinks that judges should avoid theory all the moreimportant. But his answers to that question are also puzzling, because theyactually state, not reasons why integrity should be abandoned or evenrelaxed as a goal, but the demands of integrity itself. He calls attention, forexample, to the importance of precedent in legal practice, and fears thatjudges anxious to impose new theoretical structures over the law would betoo quick to overrule these. But that is a concern that Hercules noticed aswell, and that led him, precisely out of respect for integrity with that featureof our practice, to adopt what I called the principle of "local priority, "21 aprinciple that Sunstein does not mention, but which seems equivalent to hisown suggestion that judges should adopt a "presumption" that revisions inthe law should be "local." 22 He also suggests that judicial commitment tolarge scale theories-such as, for example, a "personal autonomy" accountof 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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IN PRAISE OF THEORY

he also points out, theoretical explicitness may make it easier to identifymistakes, and may also facilitate large-scale changes when the declaredtheories of the past are themselves identified as mistakes, as in the case, forexample, of the precedents of the Lochner era. Integrity opens the way touseful change in a variety of ways: by separating the fact of precedent fromits previously announced theoretical basis, for example, and through thedevice of gravitational force.

Sunstein's most intriguing defense of theoretical "incompleteness" is,however, more explicitly political. "For reasons of both policy andprinciple," he says, "the development of large-scale theories of the right andthe good is a democratic task, not a judicial one. These remarks shouldsuggest the ingredients of an account of legitimacy of which incompletelytheorized agreements would be a part. "2 But it is mysterious how"democracy" could generate "large-scale theories of the right and the good"unless judges accepted that it was part of their responsibility to identifywhich such theories were latent in legislation and other political events.There is little prospect of legislation explicitly enacting a general declarationof abstract principle: explicitly enacting, for example, that natural wondershave intrinsic value or that the risks imposed by beneficial enterprises shouldbe born by the class of people who benefit from them. It is only throughinterpretation of more concrete enactments that we can identify the principleswhich we have together embraced. Sunstein may have in mind onlyconstitutional adjudication, in which judges guided by what I have called themoral reading of the Constitution might try to impose their own "large-scale" theories on a public that would reject them. Even so, his argumentwrongly conflates adjudication and jurisdiction.24 Perhaps judges should nothave the responsibility to interpret constitutional restraints-perhaps thatpower should have been left, in some way, more with the people. But ithardly follows that a judge who is charged with deciding what follows fromthe First Amendment should refrain from asking, as one among otherquestions, why a democracy would have reason to protect speech in thatspecial way.

As I said, Sunstein finally concedes that he is not after all offering analternative to the embedded account. He says, immediately after declaringthat he denies my position, that he will qualify that denial later, and thequalifications turn out to leave little if any disagreement standing. "Inbrief," 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. Ifa good theory is available and if judges can be persuaded that the theory isgood, there should be no taboo on its judicial acceptance. The claims onbehalf of incompletely theorized agreements [he must mean incompletelytheorized individual judgments] are presumptive rather than conclusive.,25In the pages following, he describes the advantages of judges seekingintegrity in ways that parallel much of my own account: 26 He explains, forexample, the importance of not insulating even the most uncontroversial

27rules and practices from theoretical examination. He then insists that he isnot arguing that "general theory is always illegitimate in law. What makessense is a more modest point .... Judges should adopt a presumption ratherthan a taboo against high-level theorization." 28 But the embedded accountgives the same advice: it recommends that judges ascend to more abstracttheory only when they have special reason to do so.

At one point Sunstein announces advice that the embedded accountdoes not give. He says that, "Judges should adopt a more complete theoryfor an area of law only if they are very sure that it is correct."29 (I wouldhave thought, on the contrary, that we want most to be protected from judgeswho are "very sure" that their moral theories are the correct ones.) But hecannot really mean this, because, as he had pointed out, some cases cannotbe decided at all, and others cannot be decided well, without introducingtheory, which means that judges will often have to make theoreticaljudgments that bring conviction, or at least greater conviction than theirrivals, even when this falls short of certainty. When, after all, is a judgeright 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 thatstandard, that without theoretical reflection the judge lacks conviction as towhich answer is the one that, all things considered, best comports with hisresponsibilities? And isn't it then sensible for him to carry his theoreticalreflection to the point at which conviction is reached? If so, then there is nodifference-none at all-between the embedded view, with its demand foradjudicative integrity, and Sunstein's "modestly incomplete theorization."

25. SUNSTEIN, LEGAL REASONING, supra note 4, at 54.26. Compare id. at 54-61, with DWORKIN, LAW'S EMPIRE, supra note 5, at 176-90.27. SUNSTEIN, LEGAL REASONING, supra note 4, at 55-56.28. Id. at 56-57.29. Id. at 57.

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IN PRAISE OF THEORY

IV. SUMMARY: IN DEFENSE OF THEORY

I shall close by returning to the question I postponed at thebeginning. We face a revolt from theory, in law and across the rest of theintellectual landscape. Posner and Sunstein are only two examples:America's foremost academic litigator, for example, Professor LaurenceTribe, recently announced that he had no general theory of constitutionaladjudication, and did not intend to try to develop one. 30 What explains thistrend? Earlier I described a form of philosophical relativism that is nowpopular outside academic philosophy: it holds that truth in general, and truthabout political morality in particular, is created by our practices, and thatthere is no truth about these matters that is independent of a particularculture or language. The popularity of that deeply confused philosophicalposition is not the explanation of the symptoms I described, however, butrather another symptom to be explained.

Perhaps part of the answer lies in the great appeal, now, at the closeof our century of ideological and technocratic disasters, of a becomingmodesty. Intellectual modesty seems the opposite of a variety of vices: ofracism and sexism, which presuppose superiority, of the ambitions of themetaphysicians and system-builders, which seem hubristic, and above all ofthe elitism of mandarin intellectuals, which seems undemocratic. We havenow seen the trap in mistaking an anti-theoretical posture for modesty,however. Posner's apparently innocent experimentalism ends in one of themost ambitious and technocratic absolutisms philosophers have ever devised,which is utilitarian consequentialism, and Sunstein's counsel of judicialabstinence, if it were feasible at all, would produce not more democracy butthe paralysis of a process essential to democracy. Modesty is an attitude, nota calling. We are modest, not when we turn our back on difficult theoreticalissues about our roles and responsibilities as people, citizens and officials,but when we confront those issues with an energy and courage forged in avivid sense of our own fallibility. Our reflective judgment may charge uswith self-restraint in a hundred dimensions, but accepting these is an act ofmodesty 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 toconfront issues that, from time to time, are philosophical. The alternative isnot avoiding moral theory but keeping its use dark, cloaked under all thefamiliar legal phlogistons like the mysterious craft of lawyer-like analogical

30. See Laurence H. Tribe, Comment, in ANTONIN SCALIA, A MATTER OFINTERPRETATION: FEDERAL COURTS AND THE LAW 65, 72-73 (Amy Gutmann ed. 1997).

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reasoning. The other day, for the first time in my life I ate ostrich. Thosebeasts belong in the desert and perhaps on the table, though I am not yetconvinced. But they do not belong on the bench.

My praise of theory has so far been, you might think, negative. Ihave replied to critics but not said much positive for integrity in law. So mylast words hope to remind you of why integrity is so important. Everycontemporary democracy is a divided nation, and our own democracy isparticularly divided. We are divided culturally, ethnically, politically, andmorally. We nevertheless aspire to live together as equals, and it seemsabsolutely crucial to that ambition that we also aspire that the principlesunder which we are governed treat us as equals. We must strive, so far aswe can, not to apply one theory of liability to pharmaceutical companies anda different one to motorists, not to embrace one theory of free speech whenwe are worried about pornography and another when we are worried aboutflag burning. We cannot pursue that indispensable ambition unless weundertake, when necessary, to ascend high enough in our collectivedeliberations, including our adjudicative deliberations, to test our progress inthat direction. We must undertake that sovereign duty if we claim a rule oflaw 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 claimcommunity.

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