The famous and long-running feud between Ronald Dworkin and Stanley Fish is generally read as a jurisprudential debate.[1] This, however, overlooks its importance as an exercise in political philosophy. On the one hand, Dworkin presents us with an image of law as, ideally, giving expression to underlying principles drawn from an ‘institutional history’[2] that can drive society along a trajectory towards ‘the discovery of a deeper identity’[3] – oriented towards what he called ‘equal concern and respect’.[4] This has clear political implications that Dworkin did not hide: he indeed openly advocated ‘aggressive use of central government power’[5] to realise the ‘deeper identity’ in question, deployed of course through law.
On the other hand, Fish insisted that ‘in a world without foundational essences’ law took on the role of a ‘forum’ for fighting ‘forensic battles’ that could only ever be ‘contingently and temporarily won’.[6] What mattered was not an underlying set of principles but whatever happened to be persuasive at a given moment in time. Law’s job then was not to give effect to any ‘deeper identity’ but rather to serve as a process by which to ‘negotiate the differences that would, if they were given full sway, prevent us from living together’.[7] Since in a world without foundational essences ‘argument is all we have’,[8] law functions as a ‘bounded argument space’[9] within which to resolve what are inescapable moral and political disputes.
The positions that Dworkin and Fish stake out give us two points of reference between which to situate our understanding of the position of law in modernity, and particularly in relation to what has been called ‘political reason’ – namely, the drive to unearth justifications for the act of governing as such.[10] Dworkin gives us a vision of political reason that is, obviously and distinctly, liberal. It suggests that the authority of government is founded on the most elementary of human desires – the drive to be accorded ‘equal concern and respect’. And his understanding of the role of law follows from that premise: law is the means through which that drive is given structure and effect. For Fish, however, law has no such substantive foundation. Its role is rather to ‘stand between us and the contingency’ that necessarily arises precisely from the non-foundational nature of ‘the world of human existence’. [11] Law justifies itself because through its insistence on process it permits us to negotiate contingent agreement on how to proceed in a shared social life – and, in so doing, it provides justification for the authority that gives law effect. Examining the debate between these two thinkers therefore opens up for reflection the question of the justification of the grounds of authority in modernity itself – particularly in relation to justifications that are distinctly liberal. This workshop brings together a group of scholars interested in these questions to think through these matters.
Details on how to register for the workshop will follow shortly.
[1] See, for example, the essays collected in T. Bustamente and M. Martin, New Essays on the Fish-Dworkin Debate (Hart, 2023).
[2] R. Dworkin. Taking Rights Seriously (Duckworth, 1977), pp. 87 and 126.
[3] R. Dworkin, ‘Law’s Ambitions for Itself’ (1985) 71 Virginia Law Review, pp. 173, 174 and 176.
[4] R. Dworkin. Justice for Hedgehogs (Harvard University Press, 2011), p. 4.
[5] R. Dworkin, A Matter of Principle (Harvard University Press, 1985), p. 181.
[6] S. Fish, ‘The Law Wishes to Have a Formal Existence’, in S. Fish, There’s No Such Thing as Free Speech, and It’s a Good Thing, Too (Oxford University Press, 1994), pp. 178-179.
[7] Ibid., p. 179.
[8] S. Fish, Winning Arguments: What Works and Doesn’t Work in Politics, the Bedroom, the Courtroom, and the Classroom (2016), p. 3.
[9] Ibid., p. 128.
[10] M. Foucault, ‘“Omnes et Singulatim”: Toward a Critique of Political Reason’, in J. Faubion (ed.), R. Hurley (trans.), Power: Essential Works, Vol. 3, 298.
[11] S. Fish, supra note 11, p. 179.