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(2) “[Dworkin holds] that judges who conceive of their function more narrowly than Dworkin thinks they should and so decline to appeal to a broad range of principles in deciding new cases, or who appeal to what Dworkin considers mere policies rather than principles, are lawless.”[viii][8]
My view is, once again, the exact contrary. In Law’s Empire I distinguish between the concept of law and a variety of conceptions of law, that is, ways of conceiving what the law requires. One of these, which I called “conventionalism,” denies the relevance of moral principles in deciding what the law is. Another, which I called “pragmatism,” insists that judges should be guided entirely by “policies.” I argued for a different conception from either, but I recognized that my arguments it were not, because they could not be, “demonstrations”,[ix][9] and I later said that “A critic might disagree with [my views] at many levels. He might reject law as integrity in favor of conventionalism or pragmatism or some other conception of law.”[x][10] There is no suggestion in any of this that those critics who do disagree with me are “lawless” because they are drawn to a different conception of law.
(3) “Dworkin’s polemic against the appointment of Robert Bork to the Supreme Court accused Bork, an influential constitutional theorist, of having ‘no constitutional theory at all’ … By ‘theory’ [Dworkin] means his own approach to law.”[xi][11]
I devoted many pages to explaining that this is not what I meant.[xii][12] I meant that Bork has no theory. Posner supports his charge by saying that anyone has a theory if his opinions have “some degree of generality or abstraction, and a demand for consistency.”[xiii][13] But my argument was an attempt to show that Bork’s various statements about constitutional adjudication defy generality or abstraction, and are deeply inconsistent. His opinions lack generality, I said, because though he makes constitutional interpretation rest on a choice among the various levels of abstraction at which the broad constitutional clauses might be read, he fails to supply any method of choosing which level is the appropriate one. His statements are inconsistent, I said, because he picks different levels of abstraction for different constitutional issues. Posner may find my argument weak or fallacious. But he should not accuse me of having no argument without reporting the argument I made.
(4) “[Dworkin] says that once Roe v. Wade was decided, early-pregnancy abortions imposed no moral cost comparable to the cost to pregnant women of being prevented from having abortions, because the Court’s decision diminished the moral entitlement of the fetus by depriving it of its rights. It seems to me that Roe v. Wade left the moral issue exactly where it found it. To think otherwise is to suppose that the Dred Scott decision made a positive contribution to resolving the issue of the morality of slavery or that Plessy v. Ferguson made a positive contribution to resolving the issue of the morality of racial segregation. We can see in these examples where thinking of the law as a branch of moral philosophy can lead.”[xiv][14]
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