IN MEMORIAM FEBRUARY 18, 2013
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For those of us who have read and appreciated Ronnie Dworkin’s writing, who have heard him lecture, debate or teach a class, and most of all who have had the privilege and pleasure of being his friends, he has made our lives better, richer and more delightful. I say better because he was first of all a person of high seriousness and moral commitment. He lived well and chose the loveliest spots to do his living—a mews house by Washington Square, Belgravia in London, Chilmark Pond on Martha’s Vineyard—and in the company of two beautiful and gifted women, his first wife and after her death his second. In all that beauty, elegance and even luxury there could never be any doubt about his constant, consuming seriousness about his work. Montaigne, who would have greatly enjoyed Ronnie’s company, writes in his essay Of Experience that “it is for little souls, buried under the weight of business, to be unable to detach themselves cleanly from it or to leave it and pick it up again.... I think it right that the faculty [of the Sorbonne] should dine all the more comfortably and pleasantly for having used the morning profitably and seriously in the work of their school.”
And serious his labor was. In his great essay, which was the foundation for so much else that he did, Taking Rights Seriously, he proposed a program for seeing law as coextensive with morals. This authorized and indeed required that he pass from what might be a merely formal point to the substantive consideration of where morality does take us in infusing legal institutions with moral purpose. His text was the Constitution of the United States. He saw in the controversies about the meaning of free speech, of due process, of equality not just a project of textual exegesis or of the parsing of precedent, but a struggle to discern and explicate the deepest moral truths that underlay that document. And indeed he was not much occupied with the textual and precedential intricacies that are the stuff of ordinary constitutional scholarship. If he had had such a parochial focus, his work would not have had the universal appeal and relevance to audiences who do not share our texts, precedents and history. Early on, he proposed equal concern and respect as what he came to call the sovereign virtue. In the book by that name he reflected quite concretely on the political happenings of the day—such ephemera as the rights and wrongs of the Clinton impeachment—moving on to the most austere and intricate argumentation about what equality should be taken to mean and how that conception articulates with the adjacent concept of liberty. That argument was surely the distillation of many hours of exploration and debate, many drafts circulated and revised, fine points refined. In that work he proposes a hypothetical schema that brings to mind John Rawls’s thought experiment of the original position.
And indeed he learned from Rawls, as did a whole school of political philosophers. But beyond specifics what he learned and taught was the possibility, the intellectual necessity, of substantive, not just formal, moral inquiry, how the principles and the content of the right and the good can be displayed to show what should be done, how government should govern, what rights we have. It has been said, and with some justice, that, to quote Richard Posner, his arguments of high principle somehow always came out to “polemicize in favor of a standard menu of left-liberal policies.”
But to dismiss his arguments for that reason is to miss the point. The great point is that we can argue, produce reasons for and require conclusions by force of reason on the issues—great and small—of the day. If you disagree with his down-to-earth conclusions—about pornography, campaign finance, abortion and euthanasia, or the character of George W. Bush’s picks for the Supreme Court—his essays invite you to reason with him, and they offer the conviction that reason can umpire and even declare a winner in such debates. Anyone who has undergone the discipline of the famous NYU seminars he conducted with his friend and infinitely subtle, refined intellectual peer, Thomas Nagel, would see the life of reason in its highest form. An invitee would offer a paper, which all the participants would have read beforehand. Dworkin and Nagel would take him to lunch and the three of you would decide what are the main themes and pressing questions raised by the paper. Then that afternoon at the seminar itself the two of them would present the guest’s thesis to the assemblage. I am sure I am not the only such guest who found that their presentation of his thesis was finer and richer than he himself might have thought. For it was their, and certainly Ronnie’s fundamental style to look for what was the very best in any argument, and only then to proceed to criticize and perhaps to dismantle or demolish it.
Ronnie’s last book1, Justice For Hedgehogs (the title a cheeky recollection of Isaiah Berlin’s famous The Hedgehog and the Fox, itself a cheeky reference to an aphorism of Archilochus: “The fox knows many things, the hedgehog one big thing” said not at all in celebration of the latter) is a summation of his thought not just about law and political morality but about, as he puts it, “living well and the good life.” And his passage from what is the best and richest life for us to choose to how we should therefore—yes, therefore—treat others, the passage from what he calls ethics to what he calls morality and political morality is deeply thrilling. It turns on the much used concept of dignity, to which he gives rich and concrete meaning: It has to do with giving our lives a meaning that we choose for them, what he calls authenticity, the taking of our lives, the one life we shall ever have, seriously and making of it something distinctively ours. But this connects intricately with morality, the principles of how we must treat others. And here the bridge is the notion that if we insist on our own dignity, on our right and—in Kant’s sense—duty to make something of ourselves, then we must, must accord the same dignity to each of the persons with whom we have to do, intimately or in the great skein that is a political society. Here is a moving reworking of the theme of the primacy of the right over the good, for there is no primacy only mutual implication.
No account of Dworkin’s work and person can omit mention of, indeed must dwell, on the elegance of his writing style, of his argumentation, of his person. He is the exemplification of the good life and living well. He lived high but never for a moment hesitated to argue passionately for policies and parties that would surely have cut deeply—a la Francois Hollande—into his ability to live that way. His writing style was pithy and memorable. Arguments had a nerve. Proposals were on offer. And sentences and paragraphs built to a crescendo in a rhetorical but also a logical finale. The First Century B.C. Roman engineer and architect Vitruvius laid it down that buildings must have firmitas, utilitas, venustas—the last being a quality named for the goddess of love and beauty. Ronnie’s work and life had all three.
9 comments
Dworkin was a brilliant philosopher and theorist whose clear and engaging writing will remain relevant for a long time. As a hard positivist, I don't subscribe to his normative jurisprudence. However, he will leave an important legacy within the intellectual of legal philosophy for making one of the most tightly-argued cases against the positivist tradition. Even if ultimately his school of thought will not garner mainstream acceptance, he must be judged a successful and serious intellectual in this area. However, I think it is in his writing and thought experienments in political morality where he really did his best work. For example, for my money his equality of resources thesis is an even more important contractarian device than Rawls' veil of ignorance. Though it is comparatively unknown compared to Rawl's idea, I think the equal auction grasp more within its ambit than the veil and it ismore revealing (via Rawls' reflective equilibrium) when combined with the brute luck versus the option luck distinction and other important distinctions teased out by Dworkin. To this day, few people have even attempted to confront let alone seriously grapple with the fact that our in-born uncultivated capacities are entirely arbitrary. Dworkin did. Go read him now if you haven't.
- Willf
February 18, 2013 at 12:48am
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- basman
February 18, 2013 at 11:18am
2,18,13, 8:00 pm, est///Not to take away from this heartfelt and warmly personal tribute to Dworkin, but I just read an essay in draft form that warns me not to cite it or quote from it, so I won't, which does considerable damage, I think, to Dworkin's idea of interpretivism.////I hesitate even to paraphrase the parts of the essay where the case against "interpretive concepts" seems to me most strongly made. That critique amounts to saying, most generally, I think, that criterialist notions of LAW can contain Dworkin's interpretivism, which, ultimately, becomes unsustainable on analysis.///If someone would like to make the case for interpretivism and the notion of "interpretive concepts" so as to give all that some discrete, concrete meaning, perhaps off the back of a case example, I'd be interested in that kind of an exchange to see whether the good the arguments I just read can, at least as understood and made by me, hold up and answer that account.
- basman
February 18, 2013 at 8:03pm
Basman, I, for one, can't really answer your mysterious critic, as I don't know precisely what he's saying, and I, for one, like Willf, have been a Dworkin skeptic on the question of positivism. (In other words, I find the logical lure of positivism to be strong indeed.) And yet, I keep and cherish my copies of Taking Rights Seriously and Law's Empire, and I cherish them more, I have to say, than my copies of Dworkin's opposition -- Hart's Concept of Law (the great positivist text), Scalia's A Matter of Interpretation (the great textualist text), and Posner's Law, Pragmatism and Democracy (the great pragmatist text) -- all of which say what's easy to think but leave you cold. I never took a class from Dworkin, nor do I know what he looked like or sounded like, but he was a major presence in my legal education at, of all places, the University of Chicago -- not exactly Dworkin territory. Cass Sunstein (before moving to Harvard) told all us 1Ls taking a required course called "Elements" -- in Sunstein's off-handed way -- that Ronald Dworkin was our greatest living legal philosopher, sort of the way Leonard Bernstein talked about Stravinsky as our greatest living composer (when both were living). His were not the easiest theses for us law students to grasp, just as Stravinsky didn't always go down easy. "Thinking like a lawyer," whatever that means exactly, seemed to mean to us thinking more like Hart, Posner, even Scalia. That could be summarized as, "Right and wrong is one thing; law is something else altogether. Law is as law does. An unjust law is surely a law; it's merely a lousy law." Dworkin challenged that way of thinking, that way of talking, and he did it without naivete or clunkiness of natural law theorists. He said that law was about right and wrong, that arguments about constitutional meaning were about justice, that rights were about right, that thinking otherwise didn't "take rights seriously," and, importantly, didn't really describe what we were all doing in practice. And he did it all with philosophical and logical rigor. The analogy of constitutional law to a chain novel is one of his most potent notions. If you're a writer working on a chain novel, you get to decide what to write, sure, but the nature of the task imposes a couple of important constraints: First, your contribution has to fit what came before -- you can't change major plot elements or characters that are already established. Second, you want your contribution to help make the novel a *good* or *better* novel! Because, what's the point of the enterprise, why read the novel, if the product is crap? The constitutional judge is similarly faced with the twin objectives of "fit" and "justification." What makes sense of the prior material? yes. But also, what makes that material worth respecting? A judge's task, thus, is not merely to read a dictionary, arrive at a crazy result, and say, well, my hands are tied -- textualism. Nor is it to do whatever the judge thinks is reasonable, all things considered -- pragmatism. Rather, the judge seeks to arrive at an interpretation that best fits *and justifies* past legal practice -- and, crucially, some answers are better than others. (Dworkin went so far as to theorize that there is only one right answer in seemingly indeterminate cases, an idea that has gotten him in some trouble and is hardest for us mere lawyers to swallow. Perhaps it suffices to say that the terrain admits of relative judgments -- some chapters in the chain novel will better fit and justify the prior material than others, even if there is no theoretical ideal.) In this way, in the "justification" piece of "constructive interpretation," Dworkin readmits that aspect to legal theory and practice that we all know we're talking about but which we habitually go to some lengths to avoid talking about overtly -- morality, justice, the substance, reason, and point of the whole damn thing. I took a class called "Hart v. Dworkin" in law school, and the professor, on loan from the philosophy department, offered a caveat-filled conclusion of his own that ended with, "I guess, Dworkin." You wanted to be on his side, because his was the side of the angels, doubts and all.
- JakeH
February 19, 2013 at 12:41am
2,19,13,12:30 pm, est///Jake I'm a little rushed now but yours is a typically really good set of comments I'd like to respond to. A guy once said to me a few years ago that I was wasting my time practicing law because my talents were being wasted in not doing other things. He wasn't saying I was a bad lawyer just that I had something in me that could be put to better use. I didn't take what he said seriously and have kept doggedly plowing the legal lands. But I'd say that you're not at all wasting your time practicing law, something I'd likely not say to anyone. But you're a talented writer and writing seems to burn in you. You should consider doing more of it and getting it out there.
- basman
February 19, 2013 at 12:30pm
2,19,13, 6:30 est,////Jake I gotta’ say I find, always have, Dworkin difficult to put together in my head, and elusive. If I’m asked to summarize his account of LAW I start to stumble and can’t make helpful sense of the idea that the underlying guide to best adjudication is the idea of what morally just the best social practices in any particular set of circumstances./// I think Fried is too dismissive of Posner’s criticism that “It has been said, and with some justice, that, to quote Richard Posner, his arguments of high principle somehow always came out to “polemicize in favor of a standard menu of left-liberal policies.”///But to dismiss his arguments for that reason is to miss the point."///Nor do I think the *point* is, as Fried would have it, “... that we can argue, produce reasons for and require conclusions by force of reason on the issues—great and small—of the day.”/// I think, with all due respect to Fried, that’s vaporous talk. If another legal thinker has a different world view than Dworkin’s, different political and social values, different views about the proper relation between citizen and state, then there will be no dialogue or helpful reasoned exchange between them. This is entirely underscored by, as you note, Dworkin’s idea of one right answer.///Dworkin argues that it follows from the idea of interpretive concepts that disagreements about higher order ideas are “value disagreements.” So the disputants will argue normatively about what justifies the best social practices in any given case. Therefore, LAW is grounded in what Dworkin calls “moral facts.” What starts out as a call to co-identify law with morality, or to infuse law with morality, turns out to be, it seems to me, despite all the elegant writing, the analytical rigor, even the decent-heartedness underlying Dworkin’s project, a vindication in absolute terms of his values and his way of seeing the world.
- basman
February 19, 2013 at 6:34pm
Basman, thanks for your complimentary words about my writing. One day I'll figure out how to channel that urge into more lasting or fulfilling projects, not that it's not fun to talk with you of course! On Dworkin, I think that he would resist your view (which is also Posner's view) that, when it comes to stubborn disputes over law and values, "there will be no dialogue or helpful reasoned exchange between" the two sides. Posner's view is alluring, because he frankly acknowledges what observation and experience seem to suggest: When it comes to hot-button issues, whether we're talking about constitutional law or moral philosophy, there are no "right answers," just opposing camps. These are, in Posner's frequently used phrase, "indeterminate cases." The fact that we disagree and disagree sharply tells us so. Moreover, even judges, charged with justifying their decisions with reasoned explanations, come up with those reasons after deciding how they're going to rule. Studies confirm the obvious: conservative judges rule in a conservative fashion, liberal judges in a liberal fashion. So, all this pretense at reasoned explanation is basically a charade. There are easy cases that don't get to the Supreme Court. There are hard cases that don't have any clear answer. So, judges fill the space with their attitudes, their notions, their political orientation, their policy preferences. So be it; it's unavoidable. All Posner asks is that they not go nuts -- be "reasonable." Reasonableness is not a concept that Posner defines, allergic as he is to the theoretical, or at least, the grandly or comprehensively theoretical. It's more of a "I know it when I see it" sort of thing that, importantly for Posner, takes account of the real-world consequences of decisions. In Dworkin, Posner claims evidence for his outlook: look here at the great legal philosopher, supposedly guided by holy reason alone. And yet, somehow, just like Ruth Bader Ginsburg, he's always making the liberal argument. He's decided how he's going to rule, and he's written the decision (and an awfully baroque decision at that) after the fact. Just like judges, he's *rationalizing* -- a wonderful word suggesting the translation of mere attitude or feeling into something more civilized, the act of making the irrational seem rational. But Dworkin doesn't think he's merely making the irrational *seem* rational. He doesn't think he's merely dressing up his prior policy or political or moral views. And, he argues, that's not really what people who argue over law think they're doing either. They think that they're actually right! They think they have the *better* argument! That goes for Posner too, who, to my way of thinking, is too quick to dismiss legal theory and discount the importance of theoretical consistency. A hard case is not a warrant for doing whatever the judge wants and then parroting that party's brief in his opinion (or writing a better version of that brief). I think we look for and value intellectual consistency in *how* judges approach hard cases, what criteria are used, which is itself up for non-hopeless debate. I don't think it's "vaporous" to point out that Dworkin believed in reasoned argument -- not as a mere disguise or cynical cover or pretty irrelevance but rather as the heart of the matter. I don't know if I go along with Dworkin when it comes to the one right answer theory, but I go along with him at least as far as he's saying that some arguments are better than others, and, what's more, I think that everybody agrees with that. I'm not sure that the full weight of the despair implied by the "hopeless argument" notion is felt by its proponents. It would mean that there's no point to ever making an argument in a controversial area, that nobody could be persuaded by anything. It would mean that what makes humans human and not animals is not truly a civilizing force worth celebrating but merely a rationalizing force, just a decoration. And yet, arguments can work and attitudes can change, and, though it's fashionable to say so, I don't think such changes have nothing to do with the arguments deployed in their favor. One answer to the issue of Dworkin's penchant for the liberal brief is that, you know, the liberal brief is right! I think that (not always, but often), and that's often because I really think it's the better argument.
- JakeH
February 20, 2013 at 1:18am
2,20,13,5:30 pm, est/// Hey Jake I enjoyed your last comment, not least because I agree with a lot of what you say (don’t get a swelled head) so well. ///In fact I think my only quarrel comes near the end of your comment///. Why I thought Fried’s comment was “vaporous” is because it’s hard to imagine any lawyer, judge, or really anyone professedly committed to some aspect of intellectual life, denying their concomitant commitment, even in the midst of ideological rigidity, to reasoned argument. So what does a commitment to that come to when the logic of Dworkin’s position leads to “one right answer,” unless that notion is somehow an outlier of his central argument? I don’t think it is though because, as I understand it, his touchstone for decision is the best social practice(s) rooted in moral justification.///In this regard, it’s telling that Fried, unwittingly I think, lays a small semantic trap for himself, which ensnares him some, with his near-to throwaway, “with some justice” in saying, as I quoted, “It has been said, and with some justice, that, to quote Richard Posner, his arguments of high principle somehow always came out to “polemicize in favor of a standard menu of left-liberal policies.”/// Because “with some justice” points to, and understates, what seems a very telling critique of Dworkin, and one that ought especially to concern a legal positivist, that LAW is a matter of, coextensive with, suffused with, couple them rhetorically how you will, morality, whether the morality of any particular law, any set of practices or something else. In this regard the text, law as positivist enactment or positivist judicial utterance is bracing, forcing a discipline relatively away from moral presupposition./// Finally, I’m not sure that the Posnerian view leads to the idea of “hopeless argument.” For we need to anatomize better in hard cases about who is arguing with whom. The reasoned exchanged manifestly is not between the disputants. They’re necessarily committed to their own positions. And in hard cases, really hard cases, the stuff of 5-4 decisions, the reasoned exchange isn’t really so much even with the judges, who as you note, in the nature of things, “unavoidably” as you say, go by their predilections. (Save maybe for some issues for the “odd” judge, and he does seem odd, who swing both ways, that being the exception, to be sure, rather than the rule.) So the reasoned exchange in these hard cases is with the legal universe and with, really. the public at large, and with them all over time too, and thus becomes public reasoning in the way the common law evolved and in the way SCOTUS jurisprudence generally evolves./// This is all grand and great stuff but it’s not the point, that Fried claims Posner is missing in what is Posner’s inimitable way of getting to a/the weakness in Dworkin’s argument. I.E. "with some justice" is a guide to the heart of the real point///I’ll end this note where I originally began on this thread: this way: WillF said, “…he will leave an important legacy within the intellectual (sic) of legal philosophy for making one of the most tightly-argued cases against the positivist tradition.” I have trouble understanding or even disassembling that “tightly-argued case” in any way I find revealing about what LAW is or that points me consistently to understanding adjudication. I have a better time understanding natural law theory than I do Dworkin.
- basman
February 20, 2013 at 5:39pm
I don't have time to offer another lengthy comment now, but you've inspired me to take another look at Law's Empire. Maybe I'll have more to say later....
- JakeH
February 20, 2013 at 9:52pm