'THE DEBATE THAT NEVER SHOULD HAVE BEEN': DWORKIN, HART, AND THE ANALYTICAL PROJECT.

• Author: Hutchinson, Allan C.

"Just when I thought I was out, they pull me back in!" (1) As with most other things, the fortunes of jurisprudence ebb and flow. After an extended period of scholarly dominance, the past few years have witnessed a relative decline in its significance and prominence. This is no bad thing because jurisprudence has been trapped in an increasingly narrow debate characterized by its esoteric confines and analytical ambitions--what is the nature of law? There appeared to be a brief moment when other more expansive and less restrictive options for disciplinary development seemed possible. However, any reports of the demise of analytical jurisprudence now seem premature: the posthumous publication of a dated essay by Ronald Dworkin (as a reply to an even more dated and posthumous comment by Herbert Hart) appears to have given a new lease on life to the analytical project. (2) Whether this turns out to be a genuine resurgence of scholarly activity or the last gasp of a dying tradition is a matter of dispute and time.

Although the posthumous exchange between Hart and Dworkin is presented as "The Debate That Never Was", (3) I maintain that it is more appropriately characterized as the debate that never should have been. There are three reasons for this. First, it was ethically dubious, at best, to publish either Hart's "Postscript" (4) or Dworkins "Reply". It is shading toward the unseemly to base a debate on incomplete pieces that neither of the protagonists chose to publish in their lifetimes. Second, anyone who has closely followed the arc of Dworkins extensive body of writings will find nothing new or enlightening in his "Reply". It adds little to his overall oeuvre or its critical reception. While Dworkins "Reply" may have some bibliographic or historical significance, it does not add anything useful or novel to the jurisprudential canon. Third, but most importantly, it is the debate that never should have been because Dworkin allowed himself to be caught up in the positivists' analytical project.

As I will emphasize throughout the article, Dworkin would have been much better advised to cut himself free at the earliest opportunity from the stifling metaphysical and pseudoscientific constraints of the analytical approach to jurisprudential inquiry. His career-long preoccupation with the concerns of analytical jurists was self-defeating. What he might have lost, if anything, in defeating his positivist foes, he would have amply made up for in the number of allies he might have attracted to his moralist cause. Indeed, Dworkin's work and his legacy would have been stronger if he had abandoned the analytical project entirely and taken a more explicitly political and pragmatic tack to his values-based approach to law and adjudication. It is a matter of considerable political as well as jurisprudential regret that Dworkin did not do so.

1. LIFE AFTER DEATH?

   1. THE WRITING DEAD

      The posthumous publication of any lost work is a risky business. In legal scholarship as elsewhere, it involves a minefield of intellectual, institutional, and ethical issues. This is particularly so when it is contested whether the work is, in fact, "lost" and when the work touches upon sensitive family matters, in this case among analytical jurists. Accordingly, the posthumous publication of a lost essay by Ronald Dworkin from 1994 is almost guaranteed to be as divisive in its origins as it is in its content. The pressing question is whether the trouble caused offsets the benefits gained. In this instance, I do not believe that it does.

      There is a treasure trove of work that has been published posthumously. It runs from Sophocles' Oedipus at Colonus and Virgil's Aeneid through Geoffrey Chaucer's The Canterbury Tales, Niccolo Machiavelli's The Prince, and Jane Austen's Persuasion to Emily Dickinson's poems, Ernest Hemingway's Under Kilimanjaro, and David Foster Wallace's The Pale King, to name only a few of the notable examples. (5) In philosophy, the most compelling case is Ludwig Wittgenstein's Philosophical Investigations!' Some of these works were scattered or unfinished and required the editorial midwifery of associates or family members. Nevertheless, there is no doubt that a strong case can be made that these posthumous publications have added to the authors' reputations and benefitted their legions of readers. (As one wag has it, one person's grave-robbing is another's archaeological dig).

      However, the ethical terrain becomes much muddier and troublesome when the author's work is published against his or her express wishes. The cause celebre is a large part of Franz Kafka's writings, including The Trial and The Castle. (7) At his death, Kafka left explicit instructions to his friend and literary executor, Max Brod, that his remaining works were to be "burned unread." (8) Nonetheless, his writings were later published over a number of decades. This posthumous publication of work against the explicit instructions of the author raises enormous ethical issues, especially if there are no extenuating circumstances, such as the author's unexpected or early death. This seems particularly so in Kafka's case, as the decision to publish seems to have been motivated as much by the prospective of financial gain as any concern about Kafka's literary standing or society's edification.

      In addition to the ethics of those who control the work, there are similar anxieties for publishers. Incidents like those around Kafka's writings raise a range of difficult questions about the propriety and politics of publishing posthumously. Indeed, there are few answers to these ethical conundrums that garner widespread support. Can it be assumed that, because the author did not specifically state that his or her unpublished work was not to be published, it is available for posthumous publication? Or, even more severely, is it reasonable to assume that, because an author did not destroy his or her unpublished work, it is still publishable? Or to assume that the failure to publish in his or her own lifetime indicates that it could be published posthumously so that the author could be relieved of the hurt of rebuke or criticism?

   2. AN ETHICAL ENDING

      Of course, little of this debate seems to be in contention in the case of the posthumous publication of Dworkin's "Reply" to the posthumously published "Postscript" by Hart. (9) Not only are they both academic pieces as opposed to works of fiction, their publication appears to have had no important financial or institutional consequence. Moreover, many, especially those who championed and edited the posthumous publications, likely did not come to their decision lightly; they presumably understood and reflected on the ethical considerations and did not act out of improper motives. Consequently, they simply came to the utilitarian decision that the benefits of publication outweighed the costs. In short, they felt that the jurisprudential community would be better served by general publication than by selective distribution.

      That said, the available evidence around the posthumous publication of Dworkin's "Reply" and around his intentions about it is unclear--he appeared to be neither in favour of nor against it. The challenge is what to make of this apparent indifference. My sense is that the facts lean toward nonpublication. It is telling that Dworkin did not publish his "Reply" in the 18 years between its initial circulation in September 1994 and his death in February 2013. He was very active in that period; he published at a prolific pace and his work could undoubtedly have been published almost anywhere. Dworkin was not only a jurist "who went quickly to press," (10) but he was also one who did so often. He was not at all shy about sharing or publishing his views. The draft essay "circulated rapidly and widely" among those on the distribution list of the New York University (NYU) Colloquium where it was originally presented. (11) However, it presumably had attached the usual caveat that it was a draft and was not to be quoted or cited without the author's approval. In 2004, Dworkin acknowledged the existence of his unpublished essay. (12) Indeed, he noted that he did "not intend to recapitulate the arguments of that working paper, but instead to concentrate on one aspect of Hart's Postscript". (13) This seems to push slightly towards the sense that he did not plan on publishing his "Reply". (14)

      Dworkin's editor, Nicos Stavropoulos, concedes that "Dworkin had second thoughts" about publishing his "Reply" because of Dworkin's sense that Hart's essay "fell short of the familiar, exceptionally high standard of Hart's previous work" and "in substance the work was weak." (15) This is no small concession. Although perhaps a little condescending, it puts Dworkin in a very honourable place: he did not proceed to publication because he felt Hart's piece was not up to standard so that "publishing a point by point rebuttal would have been unkind to Hart, who would have no opportunity to respond." (16) Stavropoulos caps this off by stating that "[t]o [his] knowledge [Dworkin] never made a firm decision either way". (17) Indeed, he goes further by offering the aside that although "Dworkin's draft, as always, was highly polished, with a few minor errors and some incomplete citations. Still if Dworkin had taken it to press, he might have made changes." (18) In some contexts, actions speak louder than words and the fact that Dworkin never did publish rings quite loudly. While Dworkin's response to Stavropoulos's request for a copy was "that his original electronic file was lost when his hard disk failed", (19) Dworkin surely could have secured a copy from one of the essay's many NYU recipients if he had been so motivated.

      Accordingly, it is my sense that, although it is a close call, editorial discretion might have been the better part of publishing valour. It is not simply "ironic", as Stavropoulos concludes, "that, just like...