Thomas Bustamante (Federal University of Minas Gerais (UFMG)) has posted Fish versus Dworkin: A Comparison between Two Versions of Legal Pragmatism on SSRN. Here is the abstract:
The ‘Fish-Dworkin debate’ was a turning point in Dworkin’s philosophy of law, which provides the background of Law’s Empire. Before encountering Fish, Dworkin believed legal philosophy combines a conceptual and a normative part, but these parts could still be distinguished. This picture changed when he introduced the metaphor of the ‘chain novel’: legal judgments are now presented like ‘thick ethical concepts’ in Putnam’s sense. This shift brought Dworkin to Fish’s province, since both can be classified as philosophical pragmatists. They accept what Brandom described as ‘fundamental pragmatism’, since they suppose that to understand a practice one requires a special know-how or practical ability. They accept, further, a ‘normative pragmatism’, i.e., that we resort to implicit norms to determine what counts as a reasonable interpretation within a practice. What distinguishes them is the character of these implicit norms: Fish subscribes to a version of the ‘belief-desire’ model of cognition and believes the implicit norms embedded in social practices are only ‘instrumental norms’, whereas Dworkin eschews any kind of instrumentalism. Nonetheless, Dworkin can still be classified as a pragmatist (in a wider sense) because he believes the norms that determine the right way to interpret a legal concept are drawn from the same practice they are aimed at interpreting. Legal principles, in Dworkin’s terminology, are norms implicit in social practice that play the role of providing a rational structure to distinguish between correct and incorrect applications of a set of norms. It is the possibility of inconsistency between implicit norms and the interpretive judgments we make in an interpretive community that accounts for the possibility of legal mistakes, regardless of whether these mistakes are made by a single agent or by the interpretive community to which we belong.
Recommended.