FacebookTwitterGoogle+RedditEmail

The Passing of Ronald Dworkin

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

More articles by:

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

Weekend Edition
February 15, 2019
Friday - Sunday
Matthew Hoh
Time for Peace in Afghanistan and an End to the Lies
Chris Floyd
Pence and the Benjamins: An Eternity of Anti-Semitism
Rob Urie
The Green New Deal, Capitalism and the State
Jim Kavanagh
The Siege of Venezuela and the Travails of Empire
Paul Street
Someone Needs to Teach These As$#oles a Lesson
Andrew Levine
World Historical Donald: Unwitting and Unwilling Author of The Green New Deal
Jeffrey St. Clair
Roaming Charges: Third Rail-Roaded
Eric Draitser
Impacts of Exploding US Oil Production on Climate and Foreign Policy
Ron Jacobs
Maduro, Guaidó and American Exceptionalism
John Laforge
Nuclear Power Can’t Survive, Much Less Slow Climate Disruption
Joyce Nelson
Venezuela & The Mighty Wurlitzer
Jonathan Cook
In Hebron, Israel Removes the Last Restraint on Its Settlers’ Reign of Terror
Ramzy Baroud
Enough Western Meddling and Interventions: Let the Venezuelan People Decide
Robert Fantina
Congress, Israel and the Politics of “Righteous Indignation”
Dave Lindorff
Using Students, Teachers, Journalists and other Professionals as Spies Puts Everyone in Jeopardy
Kathy Kelly
What it Really Takes to Secure Peace in Afghanistan
Brian Cloughley
In Libya, “We Came, We Saw, He Died.” Now, Maduro?
Nicky Reid
The Councils Before Maduro!
Gary Leupp
“It’s All About the Benjamins, Baby”
Jon Rynn
What a Green New Deal Should Look Like: Filling in the Details
David Swanson
Will the U.S. Senate Let the People of Yemen Live?
Dana E. Abizaid
On Candace Owens’s Praise of Hitler
Raouf Halaby
‘Tiz Kosher for Elected Jewish U.S. Officials to Malign
Rev. William Alberts
Trump’s Deceitful God-Talk at the Annual National Prayer Breakfast
W. T. Whitney
Caribbean Crosswinds: Revolutionary Turmoil and Social Change 
ADRIAN KUZMINSKI
Avoiding Authoritarian Socialism
Howard Lisnoff
Anti-Semitism, Racism, and Anti-immigrant Hate
Ralph Nader
The Realized Temptations of NPR and PBS
Cindy Garcia
Trump Pledged to Protect Families, Then He Deported My Husband
Thomas Knapp
Judicial Secrecy: Where Justice Goes to Die
Louis Proyect
The Revolutionary Films of Raymundo Gleyzer
Sarah Anderson
If You Hate Campaign Season, Blame Money in Politics
Victor Grossman
Contrary Creatures
Tamara Pearson
Children Battling Unhealthy Body Images Need a Different Narrative About Beauty
Peter Knutson
The Salmon Wars in the Pacific Northwest: Banning the Rough Customer
Binoy Kampmark
Means of Control: Russia’s Attempt to Hive Off the Internet
Robert Koehler
The Music That’s in All of Us
Norah Vawter
The Kids Might Save Us
Tracey L. Rogers
Freedom for All Begins With Freedom for the Most Marginalized
Paul Armentano
Marijuana Can Help Fight Opioid Abuse
Tom Clifford
Britain’s Return to the South China Sea
Graham Peebles
Young People Lead the Charge to Change the World
Matthew Stevenson
A Pacific Odyssey: Around General MacArthur’s Manila Stage Set
B. R. Gowani
Starbucks Guy Comes Out to Preserve Billionaire Species
David Yearsley
Bogart Weather
FacebookTwitterGoogle+RedditEmail