Ronald Dworkin memorial by JEREMY WALDRON
St John’s, Smith Square, London
Wednesday, June 5, 2013
I do not envy
those who have had to put into words today the loss of Ronald Dworkin as a
father or a friend. I have the easier task of conveying a sense of the
importance of his philosophical thought, particularly in the philosophy of law.
I
want to acknowledge what we have lost, from his being no longer among us; but
also I want to affirm what we gained—at Oxford, in London, in New York, in the
world—from his voice and from the light of his intellect.
What we have not lost… Well, we still have the books—Taking Rights Seriously, a collection of papers that in 1977 transformed
our understanding of rights and right
answers; Law’s Empire, a decade
later, a powerful argument about interpretation and integrity; then in 2011,
the great synthesis, Justice for
Hedgehogs, an affirmation of the unity of value, bringing into a single
Dworkinian vision an ethic of dignity and a comprehensive legal and political
theory.
What these
books embody–and I have named only three out of the fifteen or so that grace
the Dworkinian bookshelf—what these books embody in jurisprudence is the most
thoughtful and lucid alternative to legal positivism that we have had in the
modern era.
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I don’t mean anti-positivism,
as though Ronnie’s aim was just to refute the claims of his teachers at Oxford.
His work may have started that way 45 years ago, in “The Model of Rules.” But
in fact what has been most valuable in Ronnie’s jurisprudential thought is the
elaboration of an alternative theory of law,—which, mostly, was allowed to
develop under its own elegant momentum.
In this great
and graceful body of work, Ronnie gave us a living jurisprudence, one which
credited the practice of law with reason and thoughtfulness, not just the
mechanical application of rules. It was a jurisprudence that taught us to take
seriously forms of argument that—to the bewilderment of positivists,
pragmatists, and all sorts of skeptics—have lawyers and judges delving doggedly
again and again into the books of the law to search for legal answers to hard
cases, rather than just admitting defeat at the first sign that there is not
going to be any text or precedent directly on point.
He had the
effrontery to suggest that there were right answers to the legal
problems posed in hard cases and that it mattered whether we got the answers
right or wrong. This was a view which many disparaged, but it was a view that
respected the position of plaintiffs and petitioners as people coming into law
to seek vindication of their rights, not just as lobbyists for a
quasi-legislative solution. It was a position, too, that respected the
obligation of
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judges never
to give up on the sense that the existing law demanded something of them, even
in the most difficult disputes.
Under
the Rule of Law, we don’t just settle points of law pragmatically. We
proceed, as far as possible, in a way that keeps faith with what is already
laid down.
Dworkin helped
us chart the topography of law; for the corpus
juris is not just a heap of norms; beneath
the explicit rules there are principles
and policies that a legal system has committed itself to implicitly, over the
years; deep subterranean channels of moral concern that flow through every part
of the law.
In an argument
of quite stunning complexity, his 1986 book Law’s
Empire set out grounds for the responsibility that lawyers and judges have to the laws as a whole,
including their responsibility to measures enacted by people who may not have
shared their views about justice. Our job, he said, as lawyers, scholars, and
judges, is to bring interpretive coherence—integrity—to the whole body of the
law.
The unearthing
of these principles and the burden of this integrity meant that legal
reasoning, in Ronnie’s opinion, is a form
of moral reasoning. This was the
artery of his jurisprudence: that legal reasoning
is a form of moral reasoning.
Certainly, it is a complicated and uneasy form, for it depends on judgments
about the moral
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importance of
contingent events like enactment and the setting of precedents that ordinary
moralizing does not concern itself with. “Nothing guarantees that our laws will
be just,” Ronnie acknowledged. But that doesn’t mean that we separate the relation between law and
morality; it means we complicate the relation between law and morality.
Like a system of ethics that has to deal with the moral significance of
promises we wish had never been made, so too the morality of law has to come to
terms—come to moral terms—with
statutes we wish had never been passed and
precedents we wish had not been laid down. But the mark of legality is the
felt need to respect those with whom we share the community, including those
whose decisions we disagree with—to respect on moral grounds the legacy that
they have contributed to, as we expect them to respect the legacy—the same
legacy of law— that we have contributed to.
As I said, the
affirmation of this entanglement of law and morality was the artery of Ronnie’s
jurisprudence. And for the philosophy of law generally, these are ideas of momentous
importance. They will resonate down the generations. They are not
uncontroversial by any means, but the controversies they provoke have been
productive, sparklingly productive, in the otherwise desiccated landscape of
our subject.
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It is not just
legal philosophy. No one can do justice in ten short minutes to thought as
wide-ranging as Ronnie’s. There is his work in constitutional law: what he
called “the moral reading” of the American constitution; and his conviction
that even in Britain, a bill of rights with strong judicial review was not only
possible, but would strengthen democracy by strengthening the conditions that
make democracy legitimate.
Then there is
his writing on equality in moral and political philosophy, which he began working on at the end of the 1970s—
producing two articles of massive importance in the first ever issues of Philosophy and Public Affairs. Like many
here today, I had the good fortune to attend the seminars on these and other
topics— where Ronnie stood with other titans like Bernard Williams, Charles
Taylor, Amartya Sen, and Derek Parfit. (Those were the days when lectures and
seminars at Oxford were something more than just adjuncts to courses.) It is
impossible to overestimate the influence of these pieces on equality—“What is
Equality? 1. Equality of Welfare” and “What is Equality? 2. Equality of
Resources” —in setting the agenda for the study of justice—luck egalitarianism
and so on—in the 1980s, 1990’s and beyond.
We marveled
then at the range of Dworkin’s ideas. We thought he was a glamorous fox who
knew ever so many things. We didn’t
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always see
that, while he was working both on the theory of equality and on the
jurisprudence of Law’s Empire and on
the substance of end-of-life and abortion issues in Life’s Dominion, he was also laying the foundations for a unifying
ethical vision that, in the manner of the hedgehog, would bring together these
different facets of a comprehensive theory of justice.
The vision was
unified, in his great ethical work, Justice
for Hedgehogs, by a principle of dignity. Each person, said
Ronnie, has a certain responsibility
for the precious shape of his or her own life, and everyone has a duty to
respect the conditions under which others are able to discharge that
responsibility. That’s what “human dignity” meant for Ronnie and it underpinned
both the principles of responsibility that were so important in the
luck-egalitarian side of his account of equality and the principles of mutual
respect that are represented in the rule of law. His great work of synthesis, Justice for Hedgehogs revealed this as the foundation of all his positions— and I do mean “foundation,” which is
not the same as the fortification that allows a philosopher to see off contrary
intuitions. I mean that Justice for Hedgehogs bravely identified the very deep
underpinning of his various positions, even though that explicit identification
made each of them somewhat more vulnerable, by presenting a deeper as well as a
wider and more integrated target.
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I talked at
the beginning about what we have lost and what, through Ronnie’s life and work,
we gained. What we have and can treasure still are the writings, the books, the
articles (whether they are in the Oxford
Journal of Legal Studies or the New
York Review of Books), the jurisprudence,
the new ways of connecting ethics and political philosophy.
What we have
lost, though, is what you have heard about from others this afternoon: the
warmth of his chortling good humor, the liberality of his positions and personality;
his generous and embracing charm; the strength of a mind that could sustain an
argument in a lecture for 90 minutes without a note, the dogged and delighted
commitment to intellectual exchange—Ronnie was never one to allow himself the
last word in an argument and he wouldn’t allow anyone else the last word
either.
I
had the honor to engage him for years in arguments about judicial review—a
disagreement that has loomed large in the pleasure and profit of exchange, but
that is dwarfed by everything I owe to him in the example he set of a
commitment to the sunny upland expansiveness of political philosophy pursued in
the radiance of an affection for the law.
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I have tried
to be calm in what I’ve said this afternoon about Ronnie’s thought and legacy.
But it is very difficult. This is not just a tribute; it is a love letter, to a
man who 35 years ago at Oxford helped me find my feet, who over the years set
forth for me the virtue of argument through his own good-humored example, who
showed me—showed us all—how much more you can achieve by taking seriously the
nobility of law’s empire than by any corrosive or skeptical detachment from its
aspirations.
To his memory,
then, I pledge a resolve, as far as I am able, to carry this on, with others I
hope, to continue the refreshment of jurisprudence with these insights Ronnie
gave us, in a way that does justice to the generosity and unity of his vision.
Key Words : Ronald Dworkin, Jurisprudence, Theory, Natural Law, Postivism, Legal Theory,