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Remembering Ronald Dworkin

Ronald Dworkin, who died in London last Thursday, was a giant in legal and political philosophy. His death is a massive loss to those of us in or near those fields—not just to those who agreed with his work and who were inspired by it, but also to those who found his ideas challenging or even annoying.

I was Ronnie’s student from 1978 to 1985 and his colleague at New York University since 2006, and I have been in both camps—inspired by his jurisprudence, energized by his conception of law and the rule of law, but unfortunate enough to find myself in disagreement with him on a couple of substantive issues—persistently on the practice of judicial review of legislation and, more recently, on the desirability of hate-speech laws.

I always learned a lot from these disagreements. When I was a graduate student at Oxford, I would bring him papers on rights and property and equality, and I would sit in his room at University College, listening to him take my ideas apart. It wasn’t really disagreement at that stage, it was learning—learning what it was like to argue seriously, learning what it meant to be responded to as someone worth arguing with. Everything I have written bears the improving mark of those rigorous sessions.

Dworkin also taught me that legal scholarship doesn’t have to be solemn and pedantic. I learned to appreciate and reciprocate the cheerfulness and good humor of my supervisor. I learned how to write gracefully under pressure. I came to understand that it was a privilege to have my papers taken apart and taken seriously.

Our disagreements persisted, but the matters on which we disagreed paled by comparison to the breadth of understanding which, for me, developed out of Dworkin’s philosophy of law. It is hard to trace the way in which one becomes persuaded by another’s position—certainly one as challenging and multifaceted as Dworkin’s jurisprudence. At the beginning it was difficult enough to fathom the complexities of his argument, to become familiar with a new vocabulary—in which “principles” meant something other than “rules” and in which “discretion” was not always the opposite of “objectivity.”

H.L.A. Hart had given us in The Concept of Law (1961) a good general way of looking at legal systems: clear, subtle, and elegant in its finely honed separation of moral judgment from legal judgment. At the beginning it seemed that Dworkin was just criticizing some of Hart’s theses—he rejected the idea that every legal system had a master-rule for recognizing which rules were rules of law and which ones were not; he disagreed emphatically with the defining thesis of legal positivism—still the dominant view in legal philosophy—that legal arguments need not involve moral judgment or moral argumentation; and he maintained that there were right answers in hard cases even when judges weren’t sure how to find them. (On Hart’s view, judges simply gave up the hunt and made new law for hard cases.) So one learned to immerse oneself in these disputes and take sides, arguing about them with friends and colleagues.

But gradually there was also a sense that Dworkin was adding a bit of living color to the austere black and white of legal positivism and perhaps even beginning to change the game of jurisprudence altogether. In a tribute that I delivered at NYU in 2006, I said that Hart had laid down some clear pathways, set out some main lines and structures for thinking about law and legal systems. It was Dworkin who brought that landscape to life, insisting that Hart’s austere pathways had to be tested against the actual practice of lawyers and judges.

That gave us a living jurisprudence and, once we had it, we could see how to take seriously forms of legal reasoning which—to the bewilderment and confusion of positivists, pragmatists, and all sorts of skeptics—have lawyers and judges delving doggedly into the books of the law again and again to search for legal answers to hard cases, rather than admitting defeat just because they cannot find a case or a text exactly on point.

And suddenly one found oneself in a different landscape altogether.  Law—the practice of law and legal argumentation—was a matter of thoughtfulness, not just the predictable application of rules and the arbitrary substitution of something else for the legal rules when the rules failed to provide determinate guidance. The rule of law—or legality, as Dworkin called it—respected the focused resolute application of moral intelligence to difficult problems, and it credited the capacity of citizens and their advocates to argue their way through an understanding of the bearing of legal norms—and the legal system as a whole—on their position.

The positivists’ separation of law and morality was left far behind. Legal reasoning was a form of moral reasoning. Certainly, it was a complicated form of moral reasoning. It embodied judgments about the moral importance of coherence with past enactments and past decisions that ordinary moralizing did not concern itself with. Nevertheless it was moral reasoning—that was the bold and startling character of Dworkin’s contribution.

These propositions are easy enough to gesture at in the imprecise language of a memoir. Ronald Dworkin actually figured them out, and he argued for them clearly and elaborately. Many of his opponents continue to treat his thought as though it were just a critique of Hart. But some of us have seen it as something new in jurisprudence, and we know that there is important work to be done in its wake. That is the way I hope to honor Dworkin’s memory—by carrying his jurisprudence forward in ways that do justice to the breadth and generosity of his vision.

Jeremy Waldron is a professor of law at New York University and a professor of social and political theory at the University of Oxford.

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