Clash of the Titans: Hercules vs Dennis Martinez (Reflections on the Fish-Dworkin Debate)
At first blush, the debate between Stanley Fish and Ronald Dworkin that took place over the course of the 1980s and early 90s seems to have produced little of lasting intellectual value. The two scholars, both giants in their fields, seemed to talk past each other time after time, making it difficult to discern the stakes of their quarrel. It would thus be easy to reach the conclusion that their debate should be happily forgotten, along with the mullets and headbands that marked the style of the decade in which they wrote.
But that conclusion is only half right. There is a sense in which Fish and Dworkin talked past each other. Yet a real question lies at the heart of their dispute, and the impasse their exchange produced reveals well why neither theorist offers a satisfying answer to it. The question at stake is whether law is a genuinely intellectual practice—that is, a practice in which ideas matter, for explaining both individual judicial decisions and legal change over time. That question is hard and important. But neither Fish nor Dworkin offers an adequate answer to it because both are handicapped by their assumption that efforts to reflect theoretically on law necessarily take place either “inside” or “outside” of legal practice. Thus, although the two theorists purport to reach diametrically opposed conclusions about the intellectual integrity of law, their two accounts turn out to be just mirror images of each other—two sides of the same methodological coin. Only by abandoning the “inside/outside” dichotomy to which both theorists cling is it possible to get beyond the stalemate they reach and to begin to make sense of what it is to genuinely learn in and about law.