Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Monday, February 18, 2013

My Love/Hate Relationship with Ronald Dworkin's Scholarship

Ronald Dworkin died last Thursday. I met him twice, but I doubt he could have picked me out of a lineup. Nonetheless, he had an enormous influence on my scholarship. Simply put, much of my scholarship has been directed against his. I do not mean this as a cheap shot. Dworkin was a scholarly giant writing squarely in the Kantian tradition, but I rebel against that tradition, or more precisely, a significant part of it.

It was Dworkin who first drew me into an interest in political theory. He wrote an essay on liberalism many decades ago in which he argued that liberalism was committed to the view that the state should be neutral about the good life. My reaction was that this was not the liberalism I knew and appreciated. The state had never been neutral about the good life, never would be, and never should be. Even more important Dworkin’s thesis (which was qualified and refined over the years) was set in a larger theory claiming that moral and political questions could all be resolved by reference to fresh deductions from a small set of premises. My reaction has been that free speech, for example, clashes with too many other values and interests to hope or expect that the right answer to these problems could ever be found by deductions from a small set of premises. To be fair, Dworkin conceded that a right like freedom of speech could be limited if it conflicted with another right, but the criteria for determining the content of a right were too elusive for my tastes. Over the years, I realized that I had a temperamental objection to grand theory. It was not just that I thought grand theory was pragmatically unrealistic. I did not want grand theory to succeed. It was too simple; too pat; too abstract; too rationalistic; and it insufficiently appreciated the passion, the earthiness, the romance and mystery of moral life.

At the same time, I realized that those who write in the tradition of grand theory have reasons of temperament to want it to succeed that go beyond pragmatic considerations, and I wrote about that (The First Amendment, Democracy, and Romance, Ch. 4) after giving a talk at NYU, the home of grand theory either in the realm of political theory like Dworkin or in the realm of ACLU free speech liberalism (NYU was the ACLU’s most important law school home many decades ago). My talk was not well developed, but the defensive reaction I received even from ordinarily gentle folk who fiercely resisted my psychological speculation showed me I was on to something. (In fairness, Larry Sager was enormously helpful).

If I disagreed with Dworkin on much and am grateful that he inspired me to fight against him, I agreed with much as well. One does not have to be a devotee of grand theory to recognize the importance of equality, dignity, and autonomy, and Dworkin championed all three in eloquent and thoughtful ways. Similarly there are many areas where instrumental arguments are out of place, as Dworkin so frequently argued. Even more important, Dworkin brilliantly argued that law is not just a set of rules, but policy arguments and moral principles are a part of law. Indeed, as I interpret him, Dworkin claimed that there was always a right answer not only to legal problems, but also to moral and political problems. This was the part of his theory that I most appreciate: moral skepticism is not an appropriate foundation for liberalism; it is an incoherent and psychopathic basis for law and politics.  I think this is an area where Mill and Dworkin (and Catholic social theory) come together though Mill laid more stress on our fallibility in determining what the right answer might be.

Dworkin was an eloquent champion of civil liberties and a public intellectual. He was an important moral, political, and legal theorist. He is gone. But he has left a body of work that will be influential for a long time to come.



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