Lawyers as Philosophers: Ackerman and Others

Abstract

Bruce Ackerman's new book, Social Justice in the Liberal State, provides an occasion for examining a certain style of argument in legal and political philosophy in which venerable terms such as "liberalism" and "equality" are given new meanings and the analyst then endeavors to deduce policy recommendations from his definitions. I shall illustrate this style of argument mainly from Ackerman's book,' but also from an essay by Ronald Dworkin on reverse discrimination. An initial curiosity about both Ackerman's book and my article should be noted: Ackerman and I are both law professors, and this article is being published in a law journal, but Ackerman's book and my discussion of it are not about law but about political philosophy. Ackerman states that the book "has taken up much of my time, and more of my energy, for the past ten years."2 Yet the Dean of the Yale Law School (where Ackerman teaches), far from objecting to his devoting such effort to a field that is not law, has "Over the past five years . . . provided invaluable moral as well as material support."3 And make no mistake about it: Ackerman's is not a book about law, or about justice in any sense directly relevant to the concerns of lawyers and judges; it is a book-consciously in the tradition of political philosophy that starts with Plato and Aristotle and runs through Hobbes, Locke, Rousseau, and many more to Rawls and Nozick and others in our day-on the legitimate role of government in regulating private conduct and providing services; it is, in other words, a normative theory of the state.