FacebookTwitterGoogle+RedditEmail

The Passing of Ronald Dworkin

by BINOY KAMPMARK

If we manage to lead a good life, we make our lives tiny diamonds in the cosmic sands.

Ronald Dworkin, Justice for Hedgehogs (2011)

The late legal philosopher Ronald Dworkin was a rare creature – topical, engaging and determined as ever to force the view that still irks the black letter lawyer. For Dworkin, law needs to be not merely based on rights, but a good degree of moral principle. In so doing, he built bridges between classical liberal philosophy and his own approaches to rights theory and adjudication.  The topics were always the heady ones – race, euthanasia, equality and abortion.

The popularity of discussing natural rights faded with the rise of the legal positivists in English jurisprudence.  At Oxford University, H.L.A. Hart strode to the tune of legal positivism, arguing that laws might still be such as long as they conformed to what he famously termed ‘rules of recognition’.  Moral content was something else, irrelevant to its status as law. In this, he echoed the view of the great utilitarian Jeremy Bentham, who decried natural rights as nonsense upon stilts.

One gets a sense of the majestic monster analytic philosophy was, with such figures as A. J. Ayer, who contended in Language, Truth and Logic (1936) that there are no moral facts to be known, that such facts are unverifiable, and that any discussion about them, for that reason, was meaningless.

Dworkin thought such arguments specious, and his rights-based approach found shape in Taking Rights Seriously (1977). “If the issue is one touching fundamental personal or political rights and it is arguable that the supreme court has made a mistake, a man is within his social rights in refusing to accept that decision as conclusive.”  Law had to have some moral content for it to be valued, indeed, for it to have a credible basis at all for society.  This was ‘law as integrity’ – that the state authority in question govern on principle that each member of the community be treated as an equal.  In so doing, he was taking a leap into what his critics saw as justifying undue judicial activism.

In truth, no judge is ever neutral.  This shibboleth is something of a fantasy, and a fetish, of conservative practitioners.  If a judge seeks to get into the mind of the drafters of the American constitution, they are as liable as any to speculate within some fabricated moral framework – “What would James Madison have said about stem cell research?” If you want to make any sense of this, argued Dworkin, moral content is unavoidable.

The accolades on his passing have been crowning. The Guardian editorialised with some fancy on his achievement, drawing upon the comparison made by Thomas Nagel that he was a modern John Stuart Mill.  “Just as Mill humanised the desiccated utilitarianism of his father and Bentham, Dworkin grew out of – and kicked against – the dry, analytic philosophy of the mid-20th century which dismissed moral statements as grunts of disapproval.”

His intellectual portrait of the hypothetical judge did raise a few judicial eyebrows.  For one, that judge would have an innate sense of the constitutional system, knowing its nuances with an almost divine omniscience.  In so doing, he had to observe law as integrity. Indeed, moral claims were unavoidable, leaking into any legal or philosophical system.  In a detailed response to his critics in the Boston University Law Review (2010), he claimed that “the assertion that there are no such things as moral duties is evidently itself a moral claim.” In other words, sceptical claims – the sort famously found in David Hume’s idea that values cannot be derived from facts – are themselves moral claims.

This was a theme Dworkin kept throughout his legal writings.  In Justice for Hedgehogs (2011), he argued for a “unity of value thesis”. Conflicts between moral or ethical values are only apparent rather than substantive. For Dworkin, they are integrated and mutually supporting.

He was an unusual legal scholar, stepping down from the ivory tower and wrestling with ideas well beyond the narrow ambit of the musty academy.  And his ivory tower had every reason to be temptingly distant – training at Harvard and Oxford, then teaching appointments at Yale, New York University, Oxford and University College London.

In wading into juridical battles, he drew much fire.  “Over time,” wrote a scathing Carlin Romano in the Chronicle of Higher Education (Jun 9, 2006), “the pressure of Dworkin’s politics on his jurisprudence has produced not a theory of judicial reasoning to stand beside those of Brandeis, Pound, and others, but just a theory of how America’s leading liberal professors of law would reason if they ever made it to the Court.”  Such a harsh review missed a fundamental point – that Dworkin, by his own admission, might have political convictions, but they need not necessarily have to entangle themselves with the legal reasoning of a judge.

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

More articles by:
May 25, 2016
Eric Draitser
Obama in Hiroshima: A Case Study in Hypocrisy
Ryan Mallett-Outtrim
Does Venezuela’s Crisis Prove Socialism Doesn’t Work?
Dan Arel
The Socialist Revolution Beyond Sanders and the Democratic Party
Marc Estrin
Cocky-Doody Politics and World Affairs
Sam Husseini
Layers of Islamophobia: Do Liberals Care That Hillary Returned “Muslim Money”?
Susan Babbitt
Invisible in Life, Invisible in Death: How Information Becomes Useless
Mel Gurtov
Hillary’s Cowgirl Diplomacy?
Kathy Kelly
Hammering for Peace
Dick Reavis
The Impeachment of Donald Trump
Wahid Azal
Behind the Politics of a Current Brouhaha in Iran: an Ex-President Ayatollah’s Daughter and the Baha’is
Jesse Jackson
Obama Must Recommit to Eliminating Nuclear Arms
Colin Todhunter
From the Green Revolution to GMOs: Living in the Shadow of Global Agribusiness
Binoy Kampmark
Turkey as Terror: the Role of Ankara in the Brexit Referendum
Dave Lindorff
72-Year-Old Fringe Left Candidate Wins Presidency in Austrian Run-Off Election
May 24, 2016
Sharmini Peries - Michael Hudson
The Financial Invasion of Greece
Jonathan Cook
Religious Zealots Ready for Takeover of Israeli Army
Ted Rall
Why I Am #NeverHillary
Mari Jo Buhle – Paul Buhle
Television Meets History
Robert Hunziker
Troika Heat-Seeking Missile Destroys Greece
Judy Gumbo
May Day Road Trip: 1968 – 2016
Colin Todhunter
Cheerleader for US Aggression, Pushing the World to the Nuclear Brink
Jeremy Brecher
This is What Insurgency Looks Like
Jonathan Latham
Unsafe at Any Dose: Chemical Safety Failures from DDT to Glyphosate to BPA
Binoy Kampmark
Suing Russia: Litigating over MH17
Dave Lindorff
Europe, the US and the Politics of Pissing and Being Pissed
Matt Peppe
Cashing In at the Race Track While Facing Charges of “Abusive” Lending Practices
Gilbert Mercier
If Bernie Sanders Is Real, He Will Run as an Independent
Peter Bohmer
A Year Later! The Struggle for Justice Continues!
Dave Welsh
Police Chief Fired in Victory for the Frisco 500
May 23, 2016
Conn Hallinan
European Union: a House Divided
Paul Buhle
Labor’s Sell-Out and the Sanders Campaign
Uri Avnery
Israeli Weimar: It Can Happen Here
John Stauber
Why Bernie was Busted From the Beginning
James Bovard
Obama’s Biggest Corruption Charade
Joseph Mangano – Janette D. Sherman
Indian Point Nuclear Plant: It Doesn’t Take a Meltdown to Harm Local Residents
Desiree Hellegers
“Energy Without Injury”: From Redwood Summer to Break Free via Occupy Wall Street
Lawrence Davidson
The Unraveling of Zionism?
Patrick Cockburn
Why Visa Waivers are Dangerous for Turks
Robert Koehler
Rethinking Criminal Justice
Lawrence Wittner
The Return of Democratic Socialism
Ha-Joon Chang
What Britain Forgot: Making Things Matters
John V. Walsh
Only Donald Trump Raises Five “Fundamental and Urgent” Foreign Policy Questions: Stephen F. Cohen Bemoans MSM’s Dismissal of Trump’s Queries
Andrew Stewart
The Occupation of the American Mind: a Film That Palestinians Deserve
Nyla Ali Khan
The Vulnerable Repositories of Honor in Kashmir
Weekend Edition
May 20, 2016
Friday - Sunday
Rob Urie
Hillary Clinton and Political Violence
FacebookTwitterGoogle+RedditEmail