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: email@example.com