Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977).
Ronald Dworkin, A Matter of Principle (Cambridge: Harvard University Press, 1985).
Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986).
Stephen Guest, Ronald Dworkin (Stanford: Stanford University Press, 1991).
Ronald Dworkin is probably America's most important philosopher of law.
I discovered Dworkin's essays in The New York Review of Books, as an undergraduate, when I was not particularly interested in law, but only concerned about controversial political and social issues. It is impossible not to notice Dworkin's beautiful literary style. His prose is graceful, cool and relaxed. Dworkin's scholarly work conveys a sense of ease with the materials of the law and classic philosophical sources revealing a leisurely Oxbridge "High Table" manner.
I guessed (correctly) that Dworkin smokes a pipe, attended Harvard and Oxford Universities. I also discovered that he practiced law as an associate at Sullivan and Cromwell -- the ultimate elite law firm -- after a clerkship with Judge Learned Hand (Hercules?). Hence, Professor Dworkin and I live in different legal worlds. In another time Professor Dworkin would have made a fine character in a novel by Henry James or Edith Wharton. As it is, he appears to have escaped from a story by Gore Vidal or Louis Auchincloss. Perhaps we should call him: "The Rector of NYU Law School." (I highly recommend The Rector of Justin and A Writer's Capital by Louis Auchincloss.)
"Hercules" is the name given by Dworkin to his hypothetical judge in the famous essay "Hard Cases."
In that essay Dworkin sets forth a theory of adjudication by focusing on the judicial intellect as principle- rather than policy-based, concerned with feretting out the underlying moral-jurisprudential principles within legal traditions and practices in construing fact patterns as well as statutory language.
I first thought that Dworkin was English or British. However, Dworkin's substantive views are very American, especially his healthy respect for a powerful judicial role in a Constitutional system endowed with some version of the doctrine of "judicial review." For a fascinating development of a similar concept in China, see Jim Yardley, "A Judge Tests China's Courts, Making History," in The New York Times, November 28, 2005, at pp. A1-A14. (Sadly, the attempt ended in failure.)
Dworkin's literary talent adds to the pleasure of reading his work. No one reads anything (voluntarily) unless the experience is pleasurable. Among Dworkin's philosophical sources are John Rawls and the Kantian tradition, also Hume and the British empiricists, together with America's twentieth century legal realists. I have always wondered whether or to what extent Dworkin has read F.H. Bradley.
Dworkin was born in 1931. World War II, the Holocaust, and Nuremberg Trials must be childhood recollections for him. This is not, in my judgment, insignificant to the development of his mature theory of law. Dworkin's jurisprudential work begins as a reaction to legal positivism in the form of H.L.A. Hart's jurisprudence of rules.
Positivism is a view of law as entirely distinct from morals. What the law "is" (fact) should be separated from what the law "ought" to be (value). The essence of law is a "command" adopted in the prescribed manner in a given society, a command with the right "pedigree" that carries a "sanction." Compare H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), pp. 181-208 with John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), pp. 351-371.
Positivism is the "hard headed" and unsentimental view of law usually traced to materialists and empiricists such as Thomas Hobbes or Oliver Wendell Holmes (who combines Positivism with American "Legal Realism"). In our time major legal thinkers -- Hans Kelsen and Richard Posner -- may also be described as Positivists and realists as well as pragmatists.
Positivism is the view of law favored by "real men" and all would-be Hemingway heros regardless of gender that only happens to be wrong, but is otherwise very attractive because of its simplicity.
Dworkin refers to this understanding of law as the "plain fact" or "conventionalist" view of law. (Compare "Roberto Unger's Revolutionary Legal Theory" with "Richard A. Posner on Voluntary Actions and Criminal Responsibility.")
Dworkin's discussion with Professor Hart developed over decades even as genuine friendship and respect between the two men also blossomed. One senses growing mutual regard in their published exchanges over many years. Professor Lon Fuller's debate with Mr. Hart, published in volume 71 of the Harvard Law Review, if I remember correctly, set the stage for Dworkin's entry into the conversation.
It should not be forgotten that the revival of interest in natural law thinking (the view of law as an activity which is inseparable from morality) emerged under the shadow of the trials of Nazi lawyers and judges who enforced the laws of the Third Reich. The Nazi lawyers were certainly self-professed "real men." All of the allegedly ex-Nazis explained that "it was nothing personal," but merely a matter of performing their roles or doing their jobs, "applying" or "following" the laws, dispassionately and professionally, in a "neutral" and "impersonal" manner.
Eichman was proud of his official "impersonality." If there is an apt description for Eichman, then it must be "impersonal" or even "inhuman" in his lack of affect or moral wareness. (See "Hannah Arendt, Adolf Eichman, and 'The Banality of Evil" and "'The Reader': A Movie Review.")
The sense that something vital was missing from the dominant view of law is a motive for Fuller's reservations about Positivism. Fuller's theory is often described as "methodological natural law thinking."
This suspicion of legal power is a key influence under the surface smoothness of Dworkin's theorizing. Dworkin and Fuller are both rich in imaginative examples and superb controversialists. They are among my favorite American "jurisprudes."
After Professor Fuller's death, I think that Mr. Dworkin has been America's foremost legal theorist. See Lon Fuller, The Morality of Law (New Haven: Yale University Press, 1964), pp. 187-242.
Dworkin has destroyed adversaries in debate, in my opinion, whether they have come from the Left (Fish, CLS people, among whom I may be listed) or the Right (Posner, Law and Economics people). Dworkin's view of law as essentially an interpretive enterprise which is nonetheless objective and capable of yielding correct or right answers has led him to understand adjudication as necessarily involving political and moral components with the proviso that these terms are used in very specific ways by Dworkin: 1) "political" does not mean partisan; and 2) "moral" does not mean allowing a judge to impose his or her "values" on litigants.
Given the limitations of an Internet discussion I will focus my comments on a single essay entitled "Law as Interpretation," in A Matter of Principle (Cambridge: Harvard University Press, 1985), p. 146.
Unlike positivists who regard propositions of law as "descriptive" statements or traditional natural law theorists who see them as "evaluative" statements, Dworkin views such propositions as "interpretive" claims:
"They are interpretive of legal history, which combines elements of both description and evaluation but is different from both." (A Matter of Principle, p. 147.)
Laws are written or communicated in language. Legal analysis is concerned to discern the meaning of statutes and cases, the authoritative materials and practices of the law, in light of their "purposes and the goals of a legal system as a whole."
Literature is also an interpretive and creative activity in which we are concerned to understand the meaning of communication in language, that is, to share meanings by means of words. The importation into American legal academia of European phenomenological-hermeneutic debate and scholarship dates from the late eighties. Sanford Levinson & Steven Mailoux, eds., Interpreting Law and Literature: A Hermeneutic Reader (Evanston: Northwestern University Press, 1988).
Dworkin argues for his "aesthetic hypothesis" in literary criticism:
"... an interpretation of a piece of literature attempts to show which way of reading (or speaking or directing or acting) the text reveals it as the best work of art. Different theories or schools or traditions of interpretation disagree on this hypothesis, because they assume significantly different normative theories about what literature is and what it is for and about what makes one work of literature better than another." (Ibid., at p. 149.)
Among the constraints in this effort is the idea of "integrity" in a work of art, also "unity" and "integration" in light of the objectives of the art-work.
Actors, for example, are like judges in law courts because actors (without changing a text) create new interpretations of classical or written roles, while remaining respectful of the integrity of the text they absorb and "enact." In many cultures, actors are called "interpreters." This leads Dworkin to a very rich theory of interpretation:
"Interpretation becomes a concept of which different theories are competing conceptions. (It follows that there is no radical difference but only a difference in the level of abstraction between offering a theory of interpretation and offering an interpretation of a particular work of art.) ... There is no longer a flat distinction between interpretation, conceived as offering the real meaning of a work of art, and criticism, conceived as evaluating its success or importance. ... Evaluative beliefs about art figure in both of these judgments." (Ibid., at p. 153.)
In discussing the effects of the idea of "authorial intention" on this strong conception of interpretation Dworkin provides an amusing discussion of the changing opinions of John Fowles regarding his novel The French Lieutenant's Woman. (Ibid., at p. 156.) His point is to illustrate the idea that an author's best-made plans may conflict with the logical development of a plot or natural evolution of a character that he or she has created. The same may be true for an actor playing a role on stage or film. Perhaps much the same may be said of the creation of any "rich" text and all attempts to limit options in reading that work.
What would the framers of the Constitution make of our difficulties today with the doctrine of "equal protection"? What advice would they give us?
Perhaps a single word: "Interpret."
As we are staring intently at Dworkin's left hand (his discussion of literature), he has made the coin of meaning appear in his right hand (by turning legal analysis into a form of interpretation):
"I want to use literary interpretation as a model for the central method of legal analysis, and I therefore need to show how even this distinction between artist and critic might be eroded in certain circumstances. Suppose that a group of novelists is engaged for a particular project and that they draw lots to determine the order of play. The lowest number writes the opening chapter in a novel, which he or she then sends to the next number, who adds a chapter, with the understanding that he is adding a chapter to that novel rather than beginning a new one, and then sends the new chapter to the next number, and so on." (Ibid., at p. 158.)
The common law tradition of judge-made law is a sort of communal enterprise. Judges inherit a tradition of more or less well-formulated principles. The American Constitutional tradition, similarly, involves sharing in a "community" of interpretation and commentary in which the evolution of legal materials is never final or definitive (but always "unfinished"). And yet, some readings are clearly better than others in terms of the ways in which they "fit" the tradition of interpretation. Our job as inheritors of a civilization and Republic is to "finish" both, to make our Republic and civilization "better." We make our legal civilization or culture more complete or better by enhancing our options or freedom. ("Manifesto for the Unfinished American Revolution.")
I find it useful, sometimes, to think of the Western philosophical tradition as a project involving thinkers, over centuries, writing a communal novel or chronicle of the progress (has there been some?) of human understanding. Our intellectual "epic" may be traced from Periclean Athens to a kind of Hegelian culmination under the enlightened administration of our "scholarly" Presidents George W. Bush and now Donald J. Trump.
Well, perhaps "progress" is the wrong word in this context.
President Obama brought us fleeting hope of a new "Age of Enlightenment" on the banks of the Potomac. Regrettably, the fleeting hope has now fled.
America's so-called "cinematic discourse" may be brought under this umbrella. There is a vocabulary of images and styles inherited by today's film-makers, who may wish to comment upon and criticize the form that they love in order to reinvent it all the "time."
If a movie is anything that you experience as a movie, now, then film direction and genius in acting may be about enhancing and not diminishing your freedom of choice as an audience member.
Do you like or hate Prince Hamlet? After directing a film of the play in which he "enacted" the central character, Mr. Branagh may say, truthfully: "I know no more than you do about that guy in Elsinore." ("'Inception': A Movie Review.")
We must be able to say both what the tradition "is" -- describing it factually -- while determining the direction in which it should go and what it means, evaluatively, describing its goals. ("John Finnis and Ethical Cognitivism.")
The boundary between fact and value is blurred in this process.
Analogously, an actor must understand Shakespeare's text, while making it his or her own, in order to play one of the great parts. Applying this insight to adjudication Dworkin says:
"Deciding hard cases at law is rather like this strange literary exercise. The similarity is most evident when judges consider and decide common law cases; that is, when no statute figures centrally in the legal issue, and the argument turns on which rules or principles of law 'underlie' the related decisions of other judges in the past. ... Each judge must regard himself, in deciding the new case before him, as a partner in a complex chain enterprise of which these innumerable decisions, structures, conventions, and practices are the history; it is his [or her] job to continue that history into the future through what he does on the day. He [or she] must interpret what has gone before because he has a responsibility to advance the enterprise in hand rather than strike out in some direction of his own." (Ibid., at p. 159.)
There is both a dynamic feature of this judge-centered understanding of the legal task as well as respect for the culture of legal analysis and the interpretive "community" in which this process takes place. The mission of enhancing the human worth of law is shared by lawyers and judges, working over long periods of time, clarifying and sharpening the values essential to the legal order, reasoning together, inviting a partnership with other political players in the system to achieve the dual task to which democracies are committed -- reconciling freedom with justice in order to maximize both values, making citizens more free and no less equal.
This dual objective cannot be achieved without a guarantee of due process and equal protection of the laws for all persons in society. ("John Rawls and Justice.")
What I have been able to say here is only a hint of the wealth to be found in Dworkin's books. If you have any interest at all in legal and political or moral theory Ronald Dworkin's philosophy is essential reading. Fortunately, it is also a pleasure to study his books.
Read Ronald Dworkin's writings. In fact, "interpret" them.
