Two Takes on Truth in Normative Discourse

Abstract

Dworkin’s critique of judicial restraint in judicial review has long depended on his critique of a “no-right-answer” thesis among judges like Learned Hand and William Rehnquist. Dworkin has boldly offered a “right answer thesis” and an ambitious conception of judicial review in response, even where hard cases involving disputed moral questions are involved. The key to the argument has long been his critique of “external skepticism” in law and, relatedly, certain forms of “status skepticism” in metaethics. And the most powerful line of attack on those ideas has emerged from Dworkin’s use of sophisticated Twentieth Century epistemology and philosophy of language demonstrating that external skepticism depends on robust but ultimately indefensible conceptions of truth in metaphysics, epistemology, and philosophy of language – conceptions that are indefensible not only in normative discourse, but in scientific discourse and across the board. In short, jumping onto a bandwagon of modest truth theorists in philosophy of language more generally, Dworkin developed a powerful challenge to the “no-right-answer” contingent in legal theory generally and constitutional theory in particular. His new book’s discussion of “status skepticism” carries forward a similar project within moral and ethical theory more generally. However, Dworkin’s new book also contains a broad discussion of truth in interpretation, suggesting that truth in interpretation is quite different from truth in scientific discourse, and gesturing in the direction of constructive theories of truth in some domains but not others. While the latter discussion certainly resonates with Law’s Empire and a great deal of Dworkin’s other work, there is a great deal of tension between the modest, across-the-board approach to truth in earlier parts of the new book and the distinctive, non-homogenizing approach to truth in interpretation, developed in later sections. I suggest that Dworkin cannot have it both ways, and that the more non-homogenizing approach leaves his defense of judicial review more vulnerable.

Keywords: Truth, Skepticism, Interpretation, Judicial Review, Dworkin