Hillary Nye

Scott Hershovitz argues that law is a moral practice. In this response, I argue that he is right that we do well to turn our attention to moral questions. However, I argue that Hershovitz should embrace a more thoroughgoing eliminativism, according to which we don't say that law is a moral practice, but rather say nothing at all about law and address the moral questions directly. Hershovitz says that the rule of law requires us to see legal practices as sources of morality. But that requires settling what a ‘legal practice’ is, reproducing questions that more comprehensive eliminativism enables us to avoid. I argue that the rule of law cannot require seeing legal practices as sources of constraint in advance. Instead, we must always determine what is morally required in light of our practices in an all-things-considered assessment. Hershovitz further argues that lawyers are moral experts; I respond that none of us can claim moral expertise, but all of us have the moral responsibility to make our best assessment of what is morally required of us in a given situation, and we cannot rely on ideas of the law or the rule of law to settle that difficult question.

Many of Dworkin’s interlocutors saw his ‘one-system view’, according to which law is a branch of morality, as a radical shift. I argue that it is better seen as a different way of expressing his longstanding view that legal theory is an inherently normative endeavor. Dworkin emphasizes that fact and value are separate domains, and one cannot ground claims of one sort in the other domain. On this view, legal philosophy can only answer questions from within either domain. We cannot ask metaphysical questions about which domain law ‘properly’ belongs in; these would be archimedean, and Dworkin has long argued against archimedeanism. The one-system view, then, is best understood as an invitation to join Dworkin in asking moral questions from within the domain of value. Finally, I argue that Dworkin’s view can be understood as a version of ‘eliminativism’, a growing trend in legal philosophy.