“What could there be but amiability between two nice Jewish boys from Providence, Rhode Island?”
Those were the words of Stanley Fish during one of Ronald Dworkin’s seminars at NYU, to which he was invited by a fierce intellectual opponent: Dworkin himself. The episode is recalled by Professor Fish in an interview conducted by Thomas Bustamante and Margaret Martin, editors of New Essays on the Fish-Dworkin Debate—an excellent collection of essays dedicated to the (still neglected) exchange between Dworkin and Fish. When I say ‘neglected’, I say so because this book, recently published by Hart Publishing, is the first volume entirely dedicated to this debate that still carries important implications in contemporary jurisprudence (in contemporary philosophy tout court, I would say), from matters that range from interpretation and objectivity to the very enterprise of theorising itself. The interview—impressively illuminating and fun to read, one should add—finishes the volume and is preceded by 19 chapters divided in four parts.
Part One is dedicated to “Legal Theory and its Critical Role”, the relationship between theory and practice. Part Two, “Interpretation and Critical Constraints”, focuses on the on the discussion of whether one can rely on an internal structure to determine which (and whether) interpretations of a given practice can be classified (if they can be classified like this at all) as right and wrong. Part Three, “Pragmatism and Interpretive Communities”, is dedicated to the very concepts of ‘interpretive communities’ and ‘community of principle’ and to the commitment of both Fish and Dworkin to philosophical pragmatism (perhaps in different versions of it), revealing a potential convergence of views between the authors. Finally, Part Four discusses some of the implications and main takeaways of the Fish–Dworkin exchange.
Dworkin and Fish had many differences in their views, in their theoretical positions, even in their style (though they did share the sharpness, the temperature that made for a certainly heated exchange, in which “you’re still wrong” and “please don’t talk about this anymore” are business as usual). Dworkin always stood in praise of theory, Fish argued that there can be no interaction between a practice and a theory thereof. Dworkin believed theories can constrain our actions, Fish firmly denied it. However, they did have a fair share of convergences as well, particularly in what could be seen as a common suspicion, even rejection, of grand metaphysical claims. They also believed that we can only understand (and criticise) our practices from within, not from a fixed, artificial point of view from outside or nowhere. Besides, as Bustamante and Martin say in their Introduction—and the collection of essays that follow shows that they are right—“both authors eschew the common moves found in natural law jurisprudence wherein theorists attempt either to locate authority in the divine or to derive the normative force of law from a basic set of transcendental values” (P. 1.) This, I believe, helps us to show why this debate still matters. It is not only because of Stanley Fish’s position as a literary critic that his debate with Dworkin transcends legal theory. It is because, forty years on, we still discuss and engage in different attempts to better understand our practices. When we come to see, and we do so with Dworkin and Fish, that we can only do it from within, we see that the whole enterprise is one of better understanding ourselves.
In his chapter, Larry Alexander says that we can take away “very little” from the Fish–Dworkin debate. His own essay is one of the reasons why I think one could disagree. I have nineteen other reasons, twenty if we include the volume’s introduction (as I believe we should, given its clarity and comprehensiveness). The different views in this volume, I believe, bring about a new chapter in an exchange that is still very much alive, and that we can take away very much from.
One can doubt whether there was much amiability—but as this brilliant and rather timely collection of essays show, while there were many disagreements indeed, there were also many similarities between those two nice Jewish boys from Providence, Rhode Island. Right or wrong, still engaging after all these years.
