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Theory, practice and the legal enterprise 375
layers of theory that are nascent within the law. 26 Dworkin attempts to
capture this idea through the notion of ‘justificatory ascent’. To understand
this idea, one can usefully begin by considering adjudication by his fictional
superhero judge Hercules. Hercules would essentially have a grand theory of
everything and could deduce the solution to each particular case from the most
abstract of philosophical principles down to the finest detail. 27 As mere mortal
lawyers with limited capacities, Dworkin recognises that the rest of us must
usually approach legal decision making the other way round, moving from
concrete cases towards more abstract principles in a process Dworkin terms
‘justificatory ascent’. 28 Justificatory ascent involves the idea that the concrete
principles in the area of law with which one is concerned may not answer
the particular question before a judge. To provide an adequate response, the
judge may need to engage other areas of law. In some cases, this will involve
understanding and engaging with political philosophy concerning the most
desirable approach to achieve justice in a particular case. From a particular
concrete case, a judge may be pushed to higher levels of abstract theory in order
to provide a compelling justification to decide the case in a particular way.
Contrary to the claims of Posner, for instance, Dworkin argues that no one can
determine in advance the degree of ascent that is necessary for any particular
decision and this will be dependent upon the context and the particular case at
hand. In summary, he argues that ‘legal reasoning presupposes a vast
domain of justification including very abstract principles of political
morality, that we tend to take that structure as much for granted as the
engineer takes most of what he knows for granted, but that we might be
forced to reexamine some part of that structure from time to time, though we
can never be sure, in advance, when and how’. 29
Justificatory ascent does appear to capture in part some of our intuitions
as to how theory enters adjudication. Yet, we wish to highlight two particular
problems with it. The first involves showing why the ascent to a Herculean level
of abstraction is not necessary in every case. In other words, every legal case
will involve some consideration of applicable legal provisions. This will
involve at least some considerations of language as well as certain normative
considerations of justice. As such, every case would arguably invoke at least
potentially complex questions of language and justice. It is unclear the basis
upon which Dworkin claims judges may justifiably ascend to higher levels of
abstract theory only in some cases and not others. It may be, for instance,
that a particular case is a simple application of a particular legal rule. Even
26
The literature on this topic is vast; see Dworkin (n 1 above) 36 - 48 for a discussion of
some of this literature with regard to legal theory. Posner (n 13 above) 377 accuses
Dworkin of failing adequately to explain what is meant by theory in law.
27
Dworkin (n 20 above) 358.
28 Dworkin (n 20 above) 358 - 359. Woolman’s charge that Dworkin somehow seeks to
discover a transcendent, higher reality is puzzling given that Dworkin expressly
criticises such theories in the first chapter of Justice in robes. Similarly, Woolman’s claims
about how Dworkin (and those who reify theory) engage with empirical evidence would
seem to be contradicted by Dworkin’s statements about the inside-out method (see
below).
29 Dworkin (n 20 above) 56.