Posts Tagged ‘Ronald Dworkin’

The controversial jurisprudence of Ronald Dworkin

February 16, 2013

Ronald Dworkin is revered by many legal scholars and denigrated by many others, primarily because of his left-of-center political philosophy. Two examples from prominent critics identify the nature of this divide:

“Judge Richard A. Posner, who sits on the federal appeals court in Chicago, wrote in a 2001 study of public intellectuals that Professor Dworkin’s popular writings were slippery, partisan and predictable. ‘Dworkin’s dominant bent as a public intellectual is to polemicize in favor of of a standard menu of left-liberal policies.’” Adam Liptek, ‘Ronald Dworkin, Scholar of the Law, Is Dead at 81, New York Times, February 14, 2013

“His critics said that Professor Dworkin’s approach was a smoke screen. Dworkin writes with great complexity but, in the end, always discovers that the moral philosophy appropriate to the Constitution produces the results that a liberal moral relativist prefers.” Robert H. Bork, the onetime Supreme Court nominee wrote in 1997 in ‘The Tempting of America’. ibid.,

No doubt such sophistry was inevitable, given Ronald Dworkin’s education at Harvard and Oxford, two of the most left-leaning repositories of Anglo-Saxon jurisprudence in the Western world. However, the polemics must not be allowed to detract from the high quality of Ronald Dworkin’s scholarship.

Within the lefr-leaning establishment, especially that located at Harvard and Yale, Ronald Dworkin repeatedly took the better side, arguing for the importance of individual rights, free speech and the integrity of the law, against Marxist-led proponents of critical legal studies – such as Harvard’s Duncan Kennedy – who attepted to tear down the common law as a class-based instrument of false consciousness.

Dworkin’s arguments on First Amendment values played an influential role in preventing the anti-speech feminism of Catharine McKinnon from dominating the American progressive movement. Dworkin warned appropriately against the temptation – bpth from the left and from the right – to abdicate questions of jurisprudence to crude majoritarianism (a temptation that Barack Obama curently seeks to exploit). Dworkin consistently stressed that the law is not simply an extension of politics by another means. Hence the title of his book, ‘Law’s Empire’.

Whewre Dworkin comes something of a cropper, in my judgment, is in his treatment of the complex interconnection between liberty and rights. In this area, Dworkin never completely understood – or less charitably chose publicly not to acknowledge – the clear distinction between negative and positive freedom outlined by his brilliant Oxford colleague, Sir Isaiah Berlin.

In a nutshell, Berlin promoted the concwpt of negative freedom – whereby any individual should be protected against coercion by any other individual or organization of individuals – over the concewpt of positive freedom – freedom from poverty, freedom from disease, etc. – arguing that pursuit of such latter freedoms invariably ends up in coercing some individuals by others.

In essence, negative freedom protects the inalienable right of any individual to his life and to his liberty and the imprescriptible right of any individual to his property, be it human or physical in nature.

Drorkin would have none of that. Most particularly, he had no time for economic freedoms, arguing instead that a just society would not allow individuals to benefit from the arbitrary luck of such natural talents as intelligence and talent, or the advantage of some chance acquisition. Such endowments are morally arbitrary and ought not to affect the distribution of resources in society.

Dworkin’s theory of inequality, in this sense, can be defined as luck-egalitarianism. In my judgment, anyone crazy enough to enforce such a jurisprudence would impose economic retardation and extensive coercion upon the people. Fortunately for those of us who, by good fortune, inherited Anglo-Saxon jurisprudence, Ronald Dworkin did not seriously attempt to force this view upon his fellow-men.

Indeed, Ronald Dworkin did not even impose this jurisprudence upon himself. He took full advantage of his privileged education at Harvard and Oxford further to hone God-given talents, and to live justifiably well on the good fortune showered upon him by a beneficient nature. And by so doing, he delighted us all with his erudition and high-quality scholarship.

Ronald Dworkin (1931-2013) R.I.P.

February 15, 2013

Ronald Dworkin was one of the great legal philosophers and constitutional lawyers of the twentieth century, a brilliant debater, unsurpassed in rhetoric, and an influential left-wing ideologue, who disguised his ideology behind superb penmanship. Fundamentally, I disagree with his underlying messages. But I understand that they must be refuted with extreme care and diligence. He will be greatly missed, both by his supporters, and by his detractors.

Ronald Dworkin was born in Providence, Rhode Island. After graduating from Harvard, he attended Magdalen College, Oxford as a Rhodes Scholar. He obtained an LL.B from Oxford and then returned to Harvard for his J.D. Thereafter, he resided both in England and in the United States, keeping one foot on each country’s legal system.

I met Ronald Dworkin only once, in 1974, when he attended one of my Social Science Research Council seminars designed to open up the emerging law and economics discipline to British economists and legal scholars. The conference was held at University College, Oxford, where Dworkin had succeeded H.L.A. Hart as Professor of Jurisprudence. I had invited Richard Posner and Willam Landes, the world’s two leading law and economics scholars from the Chicago Law School to educate the Old World in this new discipline. Ronald Dworkin attended just one session, to take on Richard Posner head-to-head on the normative proposition that the common law should seek to maximize wealth in its court judgments.

This was a battle between giants. Although Ronald Dworkin clearly won on points against the young Richard Posner, he surely lost on points to Bill Landes who utilized his superb mastery of economics to counter the rhetorical genius of his opponent. But it was a tough sled even for one of the sharpest and most subtle minds on the Chicago campus. All conference attendees were surely winners from this dazzling interchange.

Following the session, the debate raged on late into the night, in the University College bar. Just as well that Oxford University takes ultimate pride in keeping its cellars well-stocked. I can confirm from first experience the words of Thomas Nagel to the effect that ‘Dworkin is probably the least ascetic person I know, and one of the most worldly.’ Late at night in that bar, he was not served well by that predilection. The truly ascetic Richard Posner coolly demolished his opponent with an intellect unclouded by the fog of alcohol! However, as Ronald Dworkin may well have thought: ‘Tonight I am drunk, and you are sober. But tomorrow I shall be sober and tonight’s loss will be quickly reversed.As it would be in subsequent contests between these two great legal scholars.

I shall write critically on Ronald Dworkin’s key contributions in tomorrow’s column.


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