November 14, 2013 at 7:16 P.M. Several alterations of the size of letters and spacing of paragraphs in violation of copyright and First Amendment law have taken place and may take place again at any time. This experience illustrates much of what I am saying in this essay. ("Menendez Consorts With Underage Prostitutes.")
November 14, 2013 at 2:32 P.M. I felt compelled to comment on a fine article by Thomas Nagel reviewing Stephen Guest's latest edition of his book on Ronald Dworkin.
At this time I cannot write at length on this topic, but I can offer a number of sources that may be helpful to students and that refer to my previous writings on related subjects:
Thomas Nagel, "Ronald Dworkin: The Moral Quest," The New York Review of Books, November 21, 2013, p. 56.
Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard U. Press, 1977).
Ronald Dworkin, Law's Empire (Cambridge: Harvard U. Press, 1986).
Ronald Dworkin, Justice in Robes (London & Cambridge: Harvard Belknap Press, 2006).
Ronald Dworkin, Religion Without God (Cambridge: Harvard U. Press, 2013).
Steven Guest, Ronald Dworkin (California: Stanford Law Books, 2013).
Marshall Cohen, ed., Ronald Dworkin and Contemporary Jurisprudence (London: Duckworth, 1983).
Literature often provided examples for Professor Dworkin. Illustrative literary models of Dworkin's jurisprudence, unsuspected by the authors of these works, may be found in the following texts:
William Shakespeare, The Merchant of Venice (New York: Signet, 1987).
Barry Unsworth, Sacred Hunger (New York & London: W.W. Norton, 1982).
Barry Unsworth, The Quality of Mercy (New York: Anchor, 2011).
Cinema may also be used to illustrate these ideas and generate discussion:
Judgment in Nuremberg.
To Kill a Mockingbird.
Amistad.
Michael Clayton. ("'Michael Clayton': A Movie Review.")
Arthur Danto, "Anguish: or, Factual Beliefs and Moral Attitudes," in Jean-Paul Sartre (New York: Anchor Books, 1971), pp. 147-165.
Arthur Danto, "Deep Interpretation," in The Philosophical Disenfranchisement of Art (New York: Columbia U. Press, 1983), pp. 47-69.
Hans-Georg Gadamer, Truth and Method (New York: Crossroad, 1982), pp. 153-345.
Iris Murdoch, "The Sovereignty of Good Over Other Concepts," in The Sovereignty of Good (New York & London: Ark, 1985), pp. 77-105.
Thomas Nagel, The Possibility of Altruism (New Jersey: Princeton U. Press, 1970).
Mary Warnock, ed., Sartre: A Collection of Critical Essays (New York: Anchor Books, 1971), pp. 102-121. (Hide Ishiguro's essay on "Imagination." Professor Ishiguro's son may be a celebrated novelist, but Katsuo Ishiguro is far from an expert on analytical philosophy.)
I.
The recent death of Ronald Dworkin has created a void in America's legal academy that is not likely to be filled any time soon.
Ronald Dworkin will probably be regarded as America's foremost philosopher of law in the twentieth century. This is remarkable considering the occasional anti-majoritarian tenor of his writings as well as his reliance on canonical philosophers in the Western tradition -- in addition to sources within Anglo-American legal culture -- philosophers whose works were out of fashion among most thinkers adhering to the so-called "analytical" school in the English-speaking world.
I am confident, however, that Dworkin's foundational thinkers were Plato, Hume and Kant, Hegel and Mill, but also Bradley and Green, Murdoch and Strawson, R.M. Hare and John Rawls, Robert Nozick and Bernard Williams as well as his colleagues at Oxford and NYU, respectively, H.L.A. Hart (whom he succeeded at Oxford University as Professor of Jurisprudence) and Thomas Nagel, fellow enfant terrible of sixties' analytical philosophy, concerned to restore moral and political theory to logically sophisticated law and philosophy. ("Bernard Williams and Identity.")
A previous and more detailed treatment of Ronald Dworkin's ideas may be found at my blog: Mind Games, "Ronald Dworkin and the Jurisprudence of Interpretation."
Professor Dworkin was a prolific author, especially as a popular essayist for The New York Review of Books. It is impossible to do full justice to his later work here, but it may be possible to suggest why Dworkin is so highly regarded in a brief comment.
The structure of Dworkin's jurisprudence and political philosophy is important to his argument, notably his concern with interpretation allied to moral theory. My comments are organized in terms of four principles or ideas in Mr. Dworkin's work: 1). the dignity of persons or Dworkin's understanding of human nature; 2). the integrity of law which follows from respect for individuals as "persons"; 3). the centrality of "liberty" and "equality" as competing and balancing values in any sophisticated legal system that are "enshrined" (Chief Justice Marshall) in America's guarantees of "liberty" (14th Amendment, 1st Amendment) and "due process" together with "equal protection of the laws" (14th Amendment, 4th Amendment). Finally, 4). I suggest possible applications of these ideas or concepts in currently raging controversies over massive spying upon Americans and others, as against privacy rights of persons, also concerns about drone bombings and the liberty interests of Americans killed for expressing controversial views on terrorism as well as the rights of admittedly "innocent or collateral victims" of drone strikes.
II.
For Dworkin persons are autonomous and ontologically unique individuals, moral subjects, who are always worthy of respect. A person is not and cannot validly become an "object" or "thing" under America's legal system. No person in America is a pawn of political leaders so as to be treated as a "disposable" commodity or bargaining chip in a game with other powerful leaders. ("Terry Tuchin, Diana Lisa Riccioli, and New Jersey's Agency of Torture" and "How censorship works in America.")
This foundational view of persons places Dworkin squarely within the Modern or Liberal tradition in political philosophy. Dworkin was consistently opposed to Richard A. Posner's legal behaviorism and authoritarianism with respect to "rational self-interest" in Posner's law and economics jurisprudence. Dworkin also participated in friendly debates with Leftist thinkers from Critical Legal Studies to Continental Theorists arguing that social justice values are primary over the lone rights-bearer or the dignity of individuals. (Compare "Richard A. Posner On Voluntary Actions and Criminal Responsibility" with "Roberto Unger's Revolutionary Legal Theory.")
Along with Rawls (Left) and Nozick (Right), Dworkin opposed all forms of radical utilitarianism and consequentialism in the administration of laws. A value attaches necessarily to persons, as persons, which cannot be reduced to instrumental calculation in entirely forward-looking, policy-based, or consequentialist decisions rendered by judges acting as mere bureaucratic decision-makers.
Judges are not "clerks" in the Division of Motor Vehicles. Judges in the American Common Law and Constitutional traditions are entrusted with the administration of laws and "vindication of rights" (language that dates from early in the eighteenth century, from Lord Mansfield to Blackstone's Commentaries as well as early Supreme Court jurisprudence) affecting the lives of persons -- persons who must be seen as every bit as important as the judges themselves:
" ... the guiding value that succeeds in unifying our values is that of dignity, which in turn has two interdependent components, equality and individual responsibility. Dworkin believed that these complementary values enabled him to resolve all the traditional tensions within moral and political theory -- between morality and self-interest, between liberty and equality, between the right and the good." (NYRB, p. 57.)
Please compare "Zero Dark Thirty" and "John Rawls and Justice" with "Little Brown Men Are Only Objects For Us" and "Humanities and Humanity in Decline?"
This is also Dworkin's means of transcending "Hume's Guillotine," or the division between facts and values, in aligning the "plain fact" view of "law as it is" with interpretations aimed at realizing, always, what law "should and must be" to remain legitimate law. ("What is Law?")
The logic of the law is founded on morality seeking its realization in imperfect institutions and laws, it relies on laws "working themselves pure."
There is a Kantian-Hegelian vision in Dworkin's writings of an underlying moral "aspiration" within the positive materials of law for constant clarification of the project fashioned by free men and women of governing themselves, justly, in accordance with principles, rules, policies adopted in various democratic ways aiming at different goods crystalized in America's written and, until recently, in Britain's unwritten Constitution -- but also in judge-made laws that are, eventually, incorporated into the statutes and codes enacted by state legislatures. ("David Hume's Philosophical Romance" and "Charles Fried and William Shakespeare on Interpretation" then "Manifesto For the Unfinished American Revolution" and "A Commencement Address by Secretary of State Hillary Rodham-Clinton.")
I am, like you, a person and can never be a slave in America's legal system. My rights under the Bill of Rights and moral philosophy, as Dworkin explains, are subject to unique respect in the legal system, but also, politically, at the national and international level, they must be respected by all states that act in accordance with international law. (Compare "Fidel Castro's 'History Will Absolve Me'" with, again, "John Rawls and Justice.")
III.
Much of America's legislation and activity since 9/11 seems to contradict, or conflict with, these basic principles of Anglo-American jurisprudence, as Professor Dworkin noted during his final years, when criticizing in powerful language what he called "the Right-wing phalanx on the United States Supreme Court."
Just as the men and women in the World Trade Center on 9/11 may not be considered "objects" to be destroyed by terrorists to make a political point, so eight year-old Nabila in Pakistan and the 3,000 or so other innocent persons killed by American drones are not "mere statistics" nor "militants" to be wiped out, legitimately or legally, since they are non-combatants with rights to life and safety.
Neither are the dispossessed and starved Palestinians in Gaza, or Cubans injured under a cruel and illegal embargo, properly, given principles of international human rights laws, targets of military or quasi-military power in accordance with Dworkin's jurisprudence and his understanding of law or basic concepts of justice.
All of these persons' rights merit great consideration balanced, perhaps, by competing rights claims or concerns about justice, but not mere "convenience" and never, legitimately, in secrecy or without a hearing or some open review that allows prospective victims an opportunity to respond to accusations and examine all evidence, or cross-examine witnesses, never in terms of abstract general policies they have not accepted as opposed to principles of law applied, fairly, to every concrete case regardless of who the parties may be.
This worry about the dignity of persons ensured and enshrined in rights enacted into law leads directly to a theory of the "integrity of law as interpretation." This is Dworkin's famous "hermeneutic turn" that followed Taking Rights Seriously (1977) and reached its culmination in Law's Empire (1986).
The judicial task is not merely to provide the best "fix" for the moment in a particular controversy. Rather, a judge in our Constitutional system who inherits the Common Law tradition of adjudication, must ensure both the preservation of legal forms and institutions, long term, and the optimum outcome or most just result in the particular case, short term, given the applicable rules and standards.
There is a dual-aspect challenge to do justice for persons, as litigants with competing claims and, equally, to assist in the process of "laws working themselves pure" or the system perfecting itself, in a moral sense. As Judge Learned-Hand liked to say: "It ain't easy."
The judiciary is entrusted with a Conservative mission and responsibility, preserving the institutions of law, even as judges must allow for the "formative evolution" of legal processes towards ever greater justice and liberty for all of those served by the system, which is a Liberal and progressive responsibility.
IV.
Dworkin sees rights as "deontological in nature" (Kant), but also sees the judicial vocation as requiring a telelological mission to maintain "values" of legality, at the deepest levels of the system, through the process of "evaluation" in messy controversies before the bar (Hegel). ("John Finnis and Ethical Cognitivism" and "Why I am not an ethical relativist.")
This dual concern results in a vision of law as a branch of political morality, of legal and moral decision-making as an objective and cognitive process, where there is always a right answer even in "Hard Cases."
This is certainly not to deny that the right answer may be painful or difficult for judges, litigants, or the society to accept -- nor would anyone deny that lawyers and judges often fail to discover that right answer right away. Obamacare?
We may always get things wrong. Plagiarism, Senator Paul? ("Larry Peterson Cleared by DNA" and "Justice For Mumia Abu-Jamal.")
Nevertheless, it is incumbent on judges not merely to make "deals" or "settle for compromises" -- it may be appropriate for legislators to do so! -- since judges must never sacrifice fundamental rights of individuals by finding a way to do justice without allowing the heavens to fall.
Dworkin's "Hercules," his mythical ideal judge based on New York's Judge Learned-Hand for whom Dworkin served as law clerk, insists that judicial responsibility is uncompromising, never subject to political bargaining or intimidation. ("Have you no shame, Mr. Rabner?" and "Law and Ethics in the Soprano State" then "New Jersey's Judges Disgrace America" and "The Galatea Scenario and the Mind/Body Problem.")
" ... Dworkin frankly declared that law is part of morality -- not just that moral reasoning plays a part in determining what the law is. Of course he meant that it is a very special part of morality concerned with what, in light of general principles of political legitimacy and fairness, together with the pertinent legislation, institutions, and precedents, a society is morally justified in coercing people to do." (NYRB, p. 58.)
Dworkin concludes that every legal right is a moral right -- "the right to be free from interference by the state or other individuals in its exercise." Ibid.
This insight easily ties-in with privacy and First Amendment doctrine in American Constitutional law. ("Is there a gay marriage right?")
The answer to the questions raised by Mr. Snowden's revelations as regards the privacy rights of millions violated by NSA spying or the foreseeable and expected deaths of innocent civilians -- children and old people included -- from U.S. drone bombings in many countries is obvious: These violations of fundamental rights are profoundly unjust and may well constitute state criminality because they offend the core values of American law.
This violation of foundational law makes subsequent claims of "legality" impossible, inevitably false, despite the provisions of "secret courts" (a contradiction in terms), or post-9/11 legislation, or "secret rules" (another contradiction of due process) of engagement and national security.
Similarly, despite the Bush lawyers' torture memos, torture must remain a crime against humanity for any legal systems that "takes rights seriously" or is concerned in any way with the dignity of persons. To allow for indiscriminate murders of innocents, torture, secret "Star Chamber-like" tribunals, and massive violations of privacy, diminishes American civilization by hurting all of us.
Professor Dworkin deserves the final word in this debate and discussion of his ideas -- a debate and discussion with positivist adversaries in which he has clearly prevailed -- as he departs from the scene:
" ... we share what we might call an aspirational concept of law which we often refer to as the ideal of legality or the rule of law. For us this aspirational concept is a contested concept. We agree that the rule of law is desirable, but we disagree about what, at least precisely, is the best statement of that ideal. ... legality holds only when the standards that officials accept respect certain basic rights of individual citizens." (Dworkin, Justice in Robes, p. 5.)
