Heidegger and the theory of adjudication.

• Author: Leiter, Brian
• Position: Martin Heidegger

Abstracts

According to Ronald Dworkin's influential model for constructing a theory of adjudication, the theorist aims both for a descriptively adequate and a normatively defensible account of adjudication. To be descriptively adequate, the theory must make explicit the rule-governed procedures that regulate and explain the process of judicial decisionmaking. Can the theory of adjudication carry out its descriptive project? Professor Leiter argues that it cannot, for reasons that Heidegger adduced in the context of a more general attack on the philosophical idea that human practices can be made theoretically explicit. To the contrary, argues Heidegger, all such practices depend upon a range of noncognitive "coping" skills that constitute a "Background" of intelligibility against which the practice itself takes place. The Background, however, cannot itself be made theoretically explicit. Locating this theme in the works of Heidegger Pierre Bourdieu, and the analytic legal philosopher Gerald Postema, among others, Professor Leiter shows how the general Heideggerian argument similarly frustrates the ambitions for a theory of adjudication. He concludes by showing how this argument lends support to the recent "practical-wisdom" theories of judicial decisionmaking, and why it may warrant a turn to what Professor Leiter calls a "naturalized" jurisprudence.

Recent years have witnessed a growing interest in the possible points of intersection between post-Kantian Continental philosophy and Anglo-American jurisprudence.(1) Unfortunately, much of this work has been based on misunderstandings of Continental thinkers(2) or of Anglo-American legal philosophy.(3) This Article sets itself the modest task of investigating just one possible point of intersection between the Continental and Anglo-American traditions: between Heidegger's account of human "being-in-the-world" as based on the exercise of noncognitive coping skills and one traditional project of Anglo-American jurisprudence, namely to provide a descriptively adequate and normatively attractive theory of adjudication. If Heidegger is right in his account of "being-in-the-world," what bearing does this have on the attempt to construct a theory of adjudication?(4) This Article sets out my answer - one that, I hope, does justice to the integrity of both Anglo-American jurisprudence and Heidegger's thought.

Part I sets out the traditional understanding of the theory of adjudication within the Anglo-American tradition, calling particular attention to the relation between the descriptive and normative ambitions of such a theory. Part II explains Heidegger's view that all human understanding depends upon the possession of mindless coping skills that resist theoretical articulation. Part III suggests how Heidegger's thesis may threaten the descriptive ambitions of the theory of adjudication. Finally, Part IV concludes by considering some jurisprudential rejoinders to Heidegger, as well as both some of the limitations and possible uses of Heidegger's critique. In particular, I try to show that the Heideggerian critique does lend support to theories of judicial decisionmaking that many lawyers have found attractive in recent years: the so-called "practical reasoning" or "practical wisdom" theories.(5) The Heideggerian critique, I will argue, provides a fruitful way of reconceiving these theories; one that vindicates their basic insight about the practical competence requisite for judging, while deflecting the most damning criticism of such theories, namely that they fail to provide concrete guidance to judges. The Heideggerian critique will illuminate both the limitations of the traditional project for a theory of adjudication, as well as what is correct in those recent "practical reasoning" theories of adjudication that are often ignored by analytic jurisprudence.

1. THEORY OF ADJUDICATION

   On one prevalent understanding, a theory of adjudication aims to discharge descriptive and normative functions: It both provides an accurate description of how judges really do decide cases and, at the same time, strives to tell judges how they ought to decide them.(6) Even a theory like Ronald Dworkin's honors the descriptive ambitions of the theory of adjudication. For though real judges are less methodical than Dworkin's ideal judge Hercules, Dworkin contends that "Hercules shows us the hidden structure of their judgments and so lays these open to study and criticism." Thus, Herculean decisionmaking purportedly describes actual judicial decisionmaking - if not on its surface, then with respect to its underlying logic and structure.

   Conceived as both a descriptive and normative account, the theory of adjudication is a strange hybrid, standing almost alone In the philosophical world. For most philosophical theories do not aim to discharge both descriptive and normative functions in this way-that is, they do not try to first describe a practice, and then use the description as a basis for normative guidance.(8) For example, the theory of knowledge (at least as conceived by everyone but W.V. Quine) has no descriptive component, it aims to promulgate norms for belief formation, not to describe how we actually form beliefs.(9) Some contemporary naturalists do contend that descriptive claims from cognitive science concerning how the human brain really processes information are at least relevant to the normative program of epistemology. Norms for what we ought to believe, these philosophers argue, must take into account our actual cognitive capacities if the normative advice offered by epistemologists is to be useful.(10) But even for these philosophers, what we actually do in epistemological matters (with respect to the justification of belief) does not matter: Our current epistemological practices could be wrongheaded, and thus no theory of knowledge needs to accurately describe them.

   Theories of knowledge, to repeat, are not alone in this respect. Theories of morality, for example, tell us how we ought to act, not how we do act. Indeed, such theories sometimes allow for the possibility that no one acts morally at all!(11) But theories of adjudication never claim that, even though no real judge in fact decides this way, this is how judges ought to decide.

   Notice that a lexical conjoining of descriptive and normative elements in a theory necessarily constrains the normative reach of the theory. For if it is not possible for the theory to declare existing practice wholly depraved, corrupt, and misguided - precisely because the theory must first be descriptively adequate to existing practice - then the normative demands of the theory are, accordingly, circumscribed.

   Why then would legal philosophers think theories of adjudication must be not only normatively attractive but also descriptively accurate? One likely explanation for why one might conceive these theories differently from theories of knowledge and morality is surely this. There is a presumption that current adjudicative practice is roughly right.(12) Call this view that current adjudicative practice is roughly right the "Presumption." The Presumption explains why a theory of adjudication must have both a descriptive and prescriptive component.. because a good description of a roughly right normative practice) necessarily constrains prescription. For since the practice itself is presumed to be normatively attractive, a description of that practice must then coincide, to some degree, with whatever normative guidance the theory proffers.(23)

   The Presumption tells us why a theory of adjudication must have both descriptive and normative elements. But what precise relation do the descriptive and normative ambitions of the theory bear to each other? John Mackie, commenting on Dworkin's theory, has given apt expression to what is surely the most common understanding:

   [Dworkin's] theory of [adjudication] combines descriptive with prescriptive elements. On the one hand, Professor Dworkin is claiming that it gives the best theoretical understanding of legal procedures and legal reasoning actually at work in such systems as those of England and the United States. But on the other, he wants it to be more explicitly accepted and more consciously followed. He wants it to become a truer description than it yet is . . . .(14)

   I shall call Mackie's gloss on the relation between descriptive and normative e-lements the Standard Relation." According to the Standard Relation, the normative ambition of a theory of adjudication is that judges ought to do "more explicitly and more consciously,, what it is the theory claims (as a descriptive matter) they largely do already. We can recognize the very same conception of the Standard Relation in the theory of adjudication in someone as "unDworkinian" as Oliver Wendell Holmes, who complains that "judges . . . have failed adequately to recognize their duty of [explicitlyl weighing considerations of social advantage."(15) But what judges "ought" to do - that is, explicitly weigh considerations of social advantage - is, on Holmes's view, precisely what it is they are really doing anyway, albeit "inarticulate[ly], and often unconscious[ly]."[15] Thus, Holmes, like Mackie's Dworkin, demands only that judges "ought" to do what it is they already do, albeit more explicitly and consciously.

   There is a final feature of the theory of adjudication to which we need to attend before we turn to Heidegger. This has to do with the meaning of "theory" in the theory of adjudication. What makes an understanding of adjudication "theoretical"? Roughly, the idea is this: A theoretical understanding of any domain of human activity is one that provides an explicit articulation or reconstruction of the rules that govern and explain activity in the domain. Thus, a theory of adjudication makes explicit the rules that govern and explain judicial decisions. Such rules, then, are both descriptive of, and normative for, proper...