Ronald Dworkin

• Born: December 11, 1931
• Birthplace: Worcester, Massachusetts
• Died: February 14, 2013

Early Life

Ronald Myles Dworkin majored in philosophy at Harvard University, where he graduated with a B.A. in 1953. Two years later, he earned an M.A. in jurisprudence from Oxford University. Discovering that his major interests were in law, he returned to Harvard to complete an LL.B. in 1957, and he then served as a law clerk for the legendary American judge Learned Hand, who trusted only his clerks with the tasks of reading and criticizing his written opinions. Although Dworkin greatly admired Hand, he was never influenced by Hand’s strong distrust of judicial power. In 1958, Dworkin married Betsy Ross, and he frequently expressed appreciation for her help and encouragement. The Dworkins raised one son and one daughter.

After his admission to the New York bar in 1959, Dworkin worked for more than two years as an associate for the famous law firm Sullivan and Cromwell. Many years later, he stated that he enjoyed practicing law, but it appeared unlikely that he would ever have become a courtroom lawyer. Although he had not really thought about an academic career, in 1962 Yale University unexpectedly offered him a position as assistant professor of law. Dworkin decided that the work of teaching and writing would allow him to combine his two interests of law and ethical philosophy and would also give him the freedom to work on those problems that he found the most interesting.

Life’s Work

Dworkin advanced extremely rapidly in his academic career. In 1963, he published his first important article, a critique of utilitarianism, which appeared in the Journal of Philosophy, and he was promoted to the rank of professor two years later. His critique of legal positivism in the 1967 article “Is the Law a System of Rules?” established his reputation as a significant philosopher of law. In 1969, he was named to succeed Herbert Hart as the professor of jurisprudence at Oxford University, an unusual honor for an American citizen. In 1975, he was given a joint appointment as professor of law at New York University, where he typically taught courses and seminars during the fall semesters. In addition, numerous universities—including Harvard, Stanford, and Cornell—would either appoint him as a visiting professor or invite him to give special lectures.

In contrast to many academic scholars, Dworkin believed it was important to apply philosophical analysis to current legal and political issues. He became especially fascinated by the controversial cases decided by the United States Supreme Court. A committed liberal, he endorsed the Court’s liberal decisions while Earl Warren and Warren Burger were chief justices, and he was angered by Republican politicians who attacked the Court. Dworkin especially supported those constitutional rulings that upheld a woman’s right to obtain a legal abortion, that approved the use of court-ordered busing for desegregating schools, and that allowed the use of affirmative action to benefit minorities. In an attempt to influence public opinion, he began to publish articles for a broad reading public in The New York Review of Books. An extremely articulate writer, Dworkin soon became recognized as an important voice for the left wing of the Democratic Party. He served as chairman of Democrats Abroad in 1972-1974, and he was chosen a delegate to the Democratic National Convention in 1972 and 1976.

Dworkin’s first book, Taking Rights Seriously, is mostly a collection of his early articles analyzing both philosophical problems and current legal issues. The articles are loosely unified by their defense of a “liberal theory of law” based on individual rights, especially the equal right to concern and respect. In rejecting legal positivism and utilitarianism, Dworkin argued that the law was composed of general principles as well as specific rules, and that individual rights should be recognized as “trumps” whenever they compete with public policies designed to promote the general welfare. The law contains both broad concepts and specific conceptions, and whenever judges encounter abstract concepts such as “due process of law,” they should not hesitate to use philosophical analysis to make the law as good as it can become. To achieve this, Dworkin postulated an ideal judge, named Hercules, who would be able to discover the one correct decision in “hard cases.” Hercules is a judge who operates within the Anglo-American legal system, and his decisions make use of philosophical principles embedded in constitutional texts, statutes, and judicial precedents.

In his later writings, Dworkin reacted to criticisms by expanding and refining various aspects of the theories found in Taking Rights Seriously, and he also responded to the constantly changing issues of the law, especially the constitutional decisions of the U.S. Supreme Court. In 1985, he collected nineteen articles into a second book, A Matter of Principle. By this time, the issue of affirmative action had grown in importance, and Dworkin was an outspoken advocate of the policy. In one of the most revealing articles, he defended Justice William Brennan’s interpretative approach in United Steelworkers of America v. Weber (1979), which had been based on the spirit and purpose of the relevant statute rather than on its literal wording. In another revealing article, he moderated his position on “one-right-answer” in hard cases. He wrote that more than one right answer might exist in “extremely rare” cases, and he also acknowledged that there are no objective standards for evaluating which opinion is correct.

Dworkin’s book Law’s Empire is a treatise that integrates his earlier ideas into a systematic theory of legal hermeneutics (methods of interpretation of laws), and it is usually considered to be his most sophisticated achievement in jurisprudence. Law’s Empire criticizes two hermeneutical approaches: conventionalism and pragmatism. Conventionalist doctrine resembles legal positivism insofar as it accepts established authority as the only source of the law. Dworkin refutes the version of pragmatism that considers societal results rather than principles of the right. Dworkin calls his alternative approach “law as integrity,” which formulates constructive interpretations made from precedents that uphold principles of justice, fairness, and democratic ideals. Comparing law to literature, he writes that a judge should think of himself as “an author in the chain of common law.” Such a judge would look upon judicial precedents as part of a long story that he must interpret and apply in new conditions, and he would seek “to make the developing story as good as it can be.” The judge’s decision would be based on an interpretation that “both fits and justifies” the principles of earlier decisions.

In the rather poetic conclusion of Law’s Empire, Dworkin personifies law so that it has consciousness and reflects on the nature of “law beyond the law” in an ideal utopia. “The courts,” he declares, “are the capitals of law’s empire, and judges are its princes.” In addition, philosophers are the “seers and prophets” of this empire, and their task is “to work out law’s ambitions for itself, the purer form of law within and beyond the law we have.”

By the time that Law’s Empire appeared, Dworkin was one of the few philosophers recognizable to readers outside the academic community. In 1987, he was interviewed for American public television in the series Bill Moyers: In Search of the Constitution. That same year, he bitterly opposed the confirmation of Robert Bork to the U.S. Supreme Court. Bork not only was committed to conservative policies, but he also argued that judges should make narrow constructions of the Constitution based on the intent of the framers. About this time, also, Dworkin entered into a controversy with Catherine MacKinnon and other feminists who wanted to proscribe pornography in the name of gender equality.

Although Dworkin’s writings usually emphasized legal issues in the United States, he was also interested in British affairs. His short volume A Bill of Rights for Britain (1990) advocated that the European Convention on Human Rights should be incorporated into Britain’s domestic law, which would give British judges the power of judicial review. Explaining why such a change would be consistent with democracy, he argues that “true democracy” is not just a “statistical democracy” in which anything a majority wants is legitimate, but it is a “communal democracy” in which the majority decides within a system that guarantees equality and basic rights.

Dworkin’s book Life’s Dominion provides a thoughtful analysis of the controversial issues of abortion, euthanasia, and the sanctity of human life. While recognizing the “intrinsic value” of human life, Dworkin argues that the interests of a nonviable fetus are much less compelling than a woman’s right to control her body. Dworkin is willing to follow Roe v. Wade (1973) in allowing government to proscribe abortions after the fetus reaches the development required to live on its own, and he asserts that there is a universal consensus “that abortion becomes steadily more problematic morally as a fetus develops toward infanthood.” On the issue of euthanasia, Dworkin defends the right of a competent person to refuse medical procedures even if death results, but he arrives at no clear position on the difficult question of doctor-assisted suicides.

In contrast to his early works, Dworkin was no longer rejecting a generic right to liberty, but he had decided that the right to fundamental liberties was inseparable from the right of equal respect and concern. “It is generally agreed,” he writes, “that adult citizens of normal competence have a right to autonomy, that is, a right to make important decisions defining their own lives for themselves.” He continued to believe, of course, that government should limit economic liberties in the interest of greater equality.

Dworkin further refines his interpretative theory in Freedom’s Law, a collection of seventeen of his articles, mostly taken from The New York Review of Books. By a “moral reading,” he basically means that judges and others should broadly interpret abstract constitutional concepts in ways that enhance human dignity and equality, a position already expressed in his law-as-integrity model. In three essays, he denounces Robert Bork’s methods of reading the Constitution, especially Bork’s “originalism” and his “crude positivism.” According to Dworkin’s political morality, the First Amendment’s concept of free expression means that government cannot prohibit either pornography or hate speech. In keeping with his emphasis on principles, he does not defend free expression on the basis of utilitarian or pragmatic considerations; rather, he argues that censorship is morally wrong because it disrespects the individual’s inherent right to express and to examine all points of view, even dangerous ideologies such as Nazism.

Influence

Following the publication of Taking Rights Seriously in 1977, Dworkin became one of the most influential philosophers of law in the English-speaking world. Although the bulk of his work is specifically concerned with Anglo-American jurisprudence, many continental philosophers such as Jürgen Habermas have taken a keen interest in his ideas. Time and again, Dworkin wrote about topics at the right moment. For instance, he began to criticize the schools of legal positivism and utilitarianism during the Vietnam War, when many people in the West were thirsting for philosophical alternatives that included moral content. Dworkin’s emphasis on fundamental rights appears to offer the emotional satisfaction provided by natural law theory but without its metaphysical baggage. His insistence that law is composed of both general principles and specific rules seems especially appropriate for a normative approach to jurisprudence, and he has demonstrated that it is possible to combine abstract philosophical ideas with the analysis of concrete issues and legal cases. Even critics of Dworkin’s ideas can appreciate the clarity, conviction, and precision in his writings.

Among philosophers and jurists, Dworkin’s greatest influence was in the area of hermeneutics and constitutional interpretation. Writing at a time when conservative jurists were defending methods of strict textual analysis and original intent, he presented a coherent alternative that provided justification for judiciary activism. Although he did not originate the distinction between broad concepts and more specific conceptions, he did much to popularize the notion that judges should look upon abstract legal terms as concepts of political morality. In law schools, Dworkin’s ideas were in step with those held by the majority of teachers and students, even though most jurists probably agree with Lawrence Tribe’s reservations about his subjective methods that rely so greatly on the judge’s moral values. Although certain of his normative theories are considered extreme, he has always been a man of practical realism, reflected in the fact that his methods and conclusions often coincided with those of Justice William Brennan and other liberals on the Supreme Court. Public opinion is important in a system of representative democracy, and Dworkin’s popular articles in The New York Review of Books attracted an extremely large audience. Unfortunately, his articles dealing with particular cases will inevitably become less relevant with the passing years.

Bibliography

Burke, John A. The Political Foundation of Law and the Need for Theory with Practical Value: The Theories of Ronald Dworkin and Roberto Unger. San Francisco: Austin and Winfiel, 1993. Argues that Dworkin’s theory does not have much practical value and that his antipositivism makes it difficult to identify the law. Interesting, but it overlooks Dworkin’s flexibility and agreement with numerous judicial decisions.

Cohen, Marshall, ed. Ronald Dworkin and Contemporary Jurisprudence. Totowa, N.J.: Rowman and Allanheld, 1983. This collection includes especially good essays on utilitarianism by Rolf Sartorius and Herbert Hart, followed by Dworkin’s reply to his critics. Many of the essays are abstract and for advanced students.

Covell, Charles. The Defense of Natural Law. New York: St. Martin’s Press, 1992. The fourth chapter gives an excellent analysis of Dworkin’s ideas, emphasizing that he rejected the classical tradition of natural law, which assumed the existence of universally valid truths based on human nature.

DeRosa, Marshall. The Ninth Amendment and the Politics of Creative Jurisprudence. New Brunswick, N.J.: Transaction, 1996. A stimulating but polemical work that argues that Dworkin’s natural rights perspective, combined with his judicial activism, results in a nondemocratic ideology.

Gaffney, Paul. Ronald Dworkin on Law as Integrity: Rights as Principles of Adjudication. Lewiston, N.Y.: Mellen University Press, 1996. An excellent critique that argues that Dworkin does not have an adequate foundationist theory to support his claims in behalf of natural rights. Gaffney finds that Dworkin’s defense of affirmative action contradicts his theory concerning the priority of individual rights.

Guest, Stephen. Ronald Dworkin. Stanford, Calif.: Stanford University Press, 1991. Although dated, this is the best general introduction to Dworkin’s political philosophy and his theories of legal interpretation. The work is sympathetic but considers valid criticisms by other philosophers.

Honeyball, Simon, and James Walter. Integrity, Community, and Interpretation: A Critical Analysis of Ronald Dworkin’s Theory of Law. Brookfield, Vt.: Ashgate/Dartmouth, 1998. The authors describe Dworkin as “the leading legal philosopher of our time.” They argue that Dworkin’s later works moved from an analytic to an interpretative theory of law. They provide excellent comparisons among Dworkin and other contemporary philosophers, with a useful bibliography.

Hunt, Alan, ed. Reading Dworkin Critically. New York: Berg, 1992. Left-wing critiques written primarily for British and Canadian readers. Hunt’s interesting introduction argues that there is no real linkage between Dworkin’s theory of adjudication and his political philosophy. Some of the essays take rather extreme positions.

Murphy, Cornelius. Descent into Subjectivity: Studies of Rawls, Dworkin, and Unger in the Context of Modern Thought. Wakefield, N.H.: Longwood Academic, 1990. Argues that the extreme subjectivity in Dworkin’s theory of interpretation allows judges a dangerous degree of discretion. Murphy suggests that Dworkin, by encouraging judges to seek desired results, virtually accepts pragmatism as a philosophical outlook.