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29 Ariz. St. L.J. 377 (1997)
Conceptions of Legal Theory: A Response to Ronald Dworkin

handle is hein.journals/arzjl29 and id is 389 raw text is: CONCEPTIONS OF LEGAL THEORY: A Response To Ronald Dworkin Richard A. Posner* The editors have kindly invited Professor Sunstein and me to comment on Ronald Dworkin's article In Praise of Theory.' The article is critical of what Dworkin calls the Chicago School of anti-theorists,2 to which he has consigned both Sunstein and me despite the palpable differences between our views. I do not want to paper over those differences, but I do want to point out that Dworkin has committed the identical error in his criticisms of both of us, as well as mischaracterizing our views. That error is to announce a parochial definition of theory, then define anyone who does not subscribe to it as an anti-theorist. I shall explain this error and argue that it deforms Dworkin's analysis of my own conception of theory and that his own conception is inadequate as a guide for judges or others engaged in practical legal tasks. I. Dworkin's idea of theory, specifically of the kind that should guide judges faced with difficult cases, requires that judges justify legal claims by showing that principles that support those claims also offer the best justification of more general legal practice in the doctrinal area in which the case arises. 3 The best (or better) justification is the one that fits the legal practice better, and puts it in a better light.4 In determining fit, the judge may find himself swept up in a process that Dworkin calls justificatory * Chief Judge, United States Court of Appeals for the Seventh Circuit, and Senior Lecturer, University of Chicago Law School. I am indebted to Neil Duxbury, Lawrence Lessig, Martha Nussbaum, David Strauss, and Cass Sunstein for many helpful comments on a previous draft of this response. 1. Ronald Dworkin, In Praise of Theory, 29 ARIZ. ST. L.J. 353 (1997). 2. Roughly two-thirds of Dworkin's article is devoted to the Chicago School. 3. Dworkin, supra note 1, at 355-56. 4. Id. at 356.

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