RONALD DWORKIN

Vol. 18 No. 1 (January, 2008) pp.44-50

RONALD DWORKIN, by Arthur Ripstein (ed). New York and Cambridge: Cambridge University Press, 2007. 192pp. Hardback. $75.00/£40.00. ISBN: 9780521662895. Paper. $24.99/£13.99. ISBN: 9780521664127.

Reviewed by Joseph R. Reisert, Department of Government, Colby College. Email: jrreiser [at] colby.edu.

Few scholars working today can match Ronald Dworkin’s range of intellectual interests, and none writes about complex legal and philosophical issues with greater elegance or charm. The successor to H. L. A. Hart as Professor of Jurisprudence at Oxford and currently the Jeremy Bentham Professor of Law at University College London and Frank Henry Sommer Professor of Law at New York University, Dworkin is one of this era’s preeminent legal and political theorists. A regular contributor to the NEW YORK REVIEW OF BOOKS, Dworkin is also a familiar public intellectual and a regular participant in public debates about controversial issues in political morality.

Although his works, individually, are models of clarity, Dworkin has written so much, and contributed to so many different debates in practical philosophy, that it can be difficult to appreciate the full scope and range of his intellectual achievements. Arthur Ripstein’s collection of essays, RONALD DWORKIN, aims to help readers meet that challenge. A volume in the Cambridge University Press series, Contemporary Philosophy in Focus, it seeks to introduce readers who are not intimately familiar with Dworkin’s works to his several major philosophical contributions.

Ripstein’s book contains five chapters, each dedicated to a different facet of Dworkin’s work – his critique of legal positivism, his liberal conception of the rule of law, his account of equality, his arguments for abortion and physician-assisted suicide, and his interpretive approach to the United States Constitution – and an introduction, which provides an overview of Dworkin’s approach to practical philosophy. All six essays in the volume present Dworkin’s arguments as “living truths” rather than “dead dogmas” (to use J.S. Mill’s terms), which is to say that they not only explain Dworkin’s arguments and situate them within a relevant body of literature, but also challenge his positions, sometimes quite forcefully, with counter-arguments of their own.

Although the essays do not presuppose a detailed knowledge of Dworkin’s works, they would be rough going for someone with no prior acquaintance with his writings. Ripstein’s volume would be particularly useful in an upper division undergraduate course or graduate seminar, if assigned as a companion volume alongside a selection of Dworkin’s works; it will also be helpful for scholars who have some acquaintance with a single aspect of Dworkin’s work, who seek a broader familiarity with the whole. [*45]

In his introduction, Ripstein reports that Dworkin has described himself as one of Isaiah Berlin’s “hedgehogs,” that is, as a thinker deeply attached to a single, big idea or set of ideas. He adds, however, that Dworkin seeks to avoid the vice most characteristic of the intellectual hedgehog, namely excessive abstraction, by engaging deeply with the particular terms of several concrete debates in political morality. Hence the organization of Ripstein’s book, which sounds Dworkin’s main theme in the introduction and explores that theme in its variations in the chapters devoted to specific issues.

Dworkin’s overarching idea, according to Ripstein, is his “Anti-Archimedean” approach to practical philosophy — so characterized because it denies that there exists any intellectual fixed point or fulcrum, apart from and above first-order normative debates, from which to apply any abstract, intellectual leverage to resolve them (p.5). Instead, Dworkin maintains, such debates must be resolved interpretively. In Ripstein’s account, Dworkin’s interpretative theory of justification amounts to a generalization of John Rawls’ idea of reflective equilibrium. From the observation that normative arguments are always directed towards other persons, who advance normative arguments of their own, Dworkin, like Rawls, concludes that normative arguments must take as their starting point some practical judgments that are shared by those whom we would engage in argument and that our normative conclusions can be accepted as satisfactorily justified when a certain kind of intellectual coherence among competing normative considerations is reached.

Rawls’ condition of reflective equilibrium is reached after we have repeatedly compared the consequences of the general normative principles that our theory leads us to adopt with the first-order normative judgments that we held prior to our theorizing, and gradually brought the two into line. The process works roughly as follows: as we compare the practical consequences of our general principles with the particular judgments with which we started, we may be driven to modify the theory if it yields results too far from our original position, but we may also need to modify some of our first-order judgments in light of the general principles of our larger moral theory.

Ripstein suggests that Dworkin’s theory of practical reasoning as interpretation does sharply distinguish between the levels of abstract political principles and particular judgments about specific issues as does Rawls’s theory; thus he finds that Dworkin’s account preserves a greater degree of “continuity between personal and public morality” than Rawls’ (p.8). Just as the interpreter of a literary work seeks to produce a coherent account of the text in light of its aspiration to artistic merit and its connectedness to the various sources of aesthetic value, so also an interpreter of a statute — or someone defending a normative judgment in everyday moral argument — will seek an account of the statute or moral norm that is most consistent with, and best supported by, the whole underlying web of legal and moral principles that define our shared normative aspirations. Ripstein concludes that, for Dworkin, unlike Rawls, “‘public reason’ cannot be sequestered from comprehensive views about value, even if the best public [*46] arguments turn out to demand that the state remain neutral in many particular disputes” (p.8).

To illustrate the distinctiveness of Dworkin’s “Anti-Archimedian,” interpretive approach to practical reasoning, Ripstein examines Dworkin’s disagreements with two “Archimedian” thinkers, Stanley Fish and Michael Walzer. Fish argues that the idea of interpretation cannot do the work Dworkin requires of it because what counts as a good interpretation of a text varies according to the cultural and institutional setting in which it is advanced. Novelty in interpretation is highly valued in literature departments, which is why there are so many competing interpretations of HAMLET; judges and other participants in the legal system, by contrast, favor predictability, which is why it is usually easy to say what the law requires of us, the existence of occasional hard cases notwithstanding. In Ripstein’s account, Fish emerges as a “disappointed Archimedean” — Archimedean, because he offers an external, sociological theory about the conditions under which different approaches to interpretation will flourish, not an argument internal to the practice of interpretation, about what should count as a successful reading of a text; and disappointed, because his critique of Dworkin supposes that an adequate theory of interpretation must yield an infallible method for correctly reading texts.

In contrast to Fish, who apparently seeks but despairs of finding an “Archimedean” standpoint, Walzer purports to reject the quest for any such fixed point, but, according to Dworkin, nevertheless builds his theory as if he had found one, proposing to resolve normative debates within different domains of life by appealing to the shared understandings of the participants in them. Dworkin rejects Walzer’s approach because he sees what is shared by all participants in any given social practice as the starting-point for an interpretive argument, not its conclusion. Normative judgments cannot simply be discovered through a process of historical or sociological analysis; they need to be argued for. Such arguments are necessarily interpretive: they succeed by showing that one position in an ongoing debate, rather than others, fits best within the overall web of normative principles that constitutes the debate and is the most substantively morally attractive of any such position in the debate.

Each of the subsequent five chapters explores Dworkin’s interpretive arguments with respect to a distinct set of issues. In Chapter 1, Scott Shapiro provides a useful overview of the “Hart-Dworkin debate” about the relationship between law and morality. Shapiro’s summary of this debate is remarkably clear, and may well prove useful even to scholars already familiar with the original works he references. Shaprio finds that Dworkin’s early arguments against positivism from “The Model of Rules I” have been adequately answered by the positivists, but that a second critical argument, broached in “The Model of Rules II” but only fully adumbrated in LAW’S EMPIRE, has not as yet received sufficient attention from legal positivists. This second argument alleges that legal positivists, who are committed to the view that “legal facts are grounded in . . . social, not moral, facts” (p.33), cannot account for [*47] “theoretical disagreements” in the law, i.e., disagreements “about what the grounds of law are” (p.36). As an example of such a debate, Dworkin cites TENNESSEE VALLEY AUTHORITY v. HILL, in which a divided Supreme Court enjoined the construction of a dam that would have threatened with extinction the noble snail darter, in violation of the Endangered Species Act of 1973. As Shapiro stresses, the majority and the dissent disagreed about “the legal relevance” of the “plain facts” about which they agreed – namely, that the Endangered Species Act was valid law, that the Congress had not squarely addressed the policy question raised in the case, and that they found the idea of stopping a nearly-completed $100 million dam construction project to save a relatively unimportant species of fish to be recklessly improvident, as a matter of policy (p.38). Nevertheless, they disagreed about whether the plain text of the statute should, in a case not contemplated by the legislature, be followed literally, despite the absurd consequences, or whether, in such a case, the text should be construed so as to avoid the absurdity. Such a disagreement fits neatly into Dworkin’s conception of interpretive legal argument – the relevant question would be which interpretation best fits with the existing body of case law and is morally best, i.e., most consistent with the deep moral principles running through our legal system. Shapiro notes, however, that legal positivists have not yet provided a similarly convincing account, though he begins to sketch his own positivistic solution to the puzzle, which suggests that disagreements about the grounds of law are really disagreements about the “political objectives that the current designers of the legal system sought to achieve” (p.45) – i.e., disagreements about social, not moral, facts.

David Dyzenhaus’s contribution, “The Rule of Law as the Rule of Liberal Principle,” continues the examination and critique of Dworkin’s theory from the perspective of legal positivism, focusing particularly on his account of the rule of law. Against Dworkin’s anti-positivist theory of law, Dyzenhaus directs three arguments: that it is politically dangerous, because it excessively empowers judges at the expense of democratically elected legislatures; that its account of the rule of law is excessively parochial because it presupposes the existence of a legal system that is already substantively liberal; and that it cannot adequately account for the power of administrative agencies to issue authoritative statutory interpretations. Dyzenhaus argues that Dworkin’s theory cannot meet these three challenges, though he praises Dworkin for having spurred the legal positivists to improve their theories. He concludes by suggesting that an antipositivist account of law might be more likely to succeed if it situates the moral foundations of law, not in the substantive liberal principles to which Dworkin appeals, but in the procedural morality of law articulated by Lon Fuller in THE MORALITY OF LAW.

Chapter 3, “Liberty and Equality,” contributed by the volume’s editor, offers an account and critique of Dworkin’s theory of equality. In contrast to the libertarian argument that equality and liberty are contradictory ideals, Dworkin argues that the two are deeply connected and that, indeed, equality is the more fundamental of the two. His [*48] central claim is that the state must treat its citizens “as equals,” that is, with “equal concern and respect,” and he contends that libertarians and egalitarians do not disagree about the duty of the government to treat citizens with equal concern and respect, but rather disagree about what it means to show such concern and respect (p.85). Thus, as Dworkin presents it, the debate between egalitarians and libertarians is not about the relative weights of equality and liberty, but about whether or not the libertarians’ conception of what it means to treat people as equals – respecting their rights to their persons and property – is the best conception of equality.

Dworkin advances his own conception of equality, equality of resources, by contrasting it with the ideal of equality of welfare, which holds that all those who are parties to the distribution should receive shares so as to produce in them an equal level of overall well-being. The ideal of equality of welfare is most plausible when one considers the possibility of expensive needs – to provide all children, for example, the medical care necessary to become normally-functioning, healthy adults, even if that means providing only inexpensive routine care for one and an extraordinary heart operation for the other. That ideal, however, becomes less attractive when one considers the existence of expensive tastes; can it make sense to devote more resources to the wine-snob than to the lover of cheap beer, in order to produce in both an equal level of satisfaction? Dworkin proposes instead that the moral demand of equality is satisfied when a distribution of external goods is such that no one would prefer another’s share to his own, taking into account not only the content of that share but also its opportunity cost, what has been foregone in order to acquire it. The central advantage of this view, according to Ripstein, is that it requires that people take responsibility for their choices, in a way that alternative conceptions do not.

To handle the problem of expensive needs, Dworkin proposes a thought experiment about a hypothetical market for insurance against catastrophic misfortunes. If it could be ascertained what level of insurance a reasonable person would buy to avert such catastrophes, if he knew only the average level of risk in the society, then it would be just, Dworkin argues, for society to provide that level of economic security. Ripstein suggests, that despite Dworkin’s effort to differentiate his insurance argument from Rawls’ contractarian argument for the difference principle, the two arguments are similar in that both are normative claims “about the conditions in which people can be required to take responsibility for their lives and choices” (p.104).

In Chapter 4, “Rights, Responsibilities, and Reflections on the Sanctity of Life,” Bejnamin C. Zipursky and James E. Fleming provide a summary of Dworkin’s arguments, from LIFE’S DOMINION, for the justifiability of rights to abortion and physician-assisted suicide. Zipursky and Fleming effectively demonstrate how Dworkin’s interpretive, “Anti-Archimedian” approach to practical philosophy, operates in two of the most controversial moral issues in contemporary American politics. Just as Ripstein showed in Chapter 3 that Dworkin begins his effort to resolve the debate between libertarians and egalitarians by finding [*49] the common ground that unites them, so also do Zipursky and Fleming show that Dworkin’s effort to resolve the abortion and euthanasia debates begins with an effort to find a point of agreement between the contending sides. What is shared by opponents in both debates, according to Dworkin, is the idea that life is in some way sacred and therefore merits protection. He forcefully rejects, however, the claim that fetal human beings have a right not to be killed, on the ground that beings who are not, and have not yet been, conscious cannot have any interests of their own. Likewise, he rejects the claim that those who are terminally ill and wracked by pain that cannot be medically alleviated have any duty not to seek their own deaths.

Nevertheless, the failure of those arguments does not settle the question of the legality of abortion or assisted suicide; there remains the question whether the argument from the sacredness of life suffices to justify legal restrictions on either practice. Dworkin argues that the state has a duty, grounded in its obligation to protect liberty of conscience, to respect the divergent, reasonable opinions about the sacredness of life held by citizens on both sides of the abortion and assisted suicide debates. Hence the state is barred from prohibiting either practice, though it may encourage citizens to reflect seriously about seeking abortion or assisted suicide, but only if it leaves the individual free, in the end, to make the choice to seek or refuse either procedure. Zipursky and Fleming offer a modest critique of Dworkin’s view, arguing that his effort to ground the rights to abortion and assisted suicide in religious liberty would be more effectively recast as arguments grounded directly in a more general principle of autonomy. Although this chapter lucidly explicates Dworkin’s arguments, it might have been more enlightening to encounter a more sharply critical perspective on them. Just as Chapters 1 and 2 offered accounts of Dworkin’s critique of legal positivism from scholars who explicitly defend positivism, it might have been desirable to read an account of Dworkin’s theory of the sacredness of life articulated by a scholar who explicitly argues for the positions Dworkin rejects.

The final chapter is Sanford Levinson’s contribution, “Hercules, Abraham Lincoln, the United States Constitution, and the Problem of Slavery.” This essay explores Dworkin’s approach to the interpretation of the United States Constitution by asking how an ideal Dworkinian judge (the Hercules of the chapter title) could operate in a pervasively unjust legal system, such as he assumes the antebellum Constitution to have been. It is a question Dworkin addressed directly only once, in an essay for the NEW YORK REVIEW OF BOOKS, in 1975. In that essay, Dworkin suggests that antebellum judges faced with challenges to the constitutionality of the Fugitive Slave Law did not need to regard themselves as limited by the stark alternatives of either asserting that the principles of natural law demand freedom for the slaves, despite the existence of so much positive law to the contrary, or of punctiliously and even zealously defending the positive law rights of slave-owners. As Levinson points out, the latter course was chosen by John Marshall, in THE ANTELOPE, and by Justice Story, in PRIGG v. PENNSYLVANIA. Dworkin argues that the interpretive approach he commends [*50] opens a middle route between those alternatives. Hercules would recognize the place of slavery in our positive law but also see it as a compromise of the more basic principles of human dignity that underpin the whole project of republican self-government, and, in seeking to give these values due effect, could have found ways, for example, to have protected the rights of blacks alleged to be fugitive slaves.

Levinson, however, presses further, wondering what Hercules would have said about the Missouri Compromise and the Emancipation Proclamation. In Chapter 2, Dyzenhaus introduced the example of a substantively wicked legal system as a problem for Dworkin’s antipositivism; Levinson’s contribution not only mounts a sustained investigation of the resources in Dworkin’s theory for meeting that challenge but also raises a series of provocative questions about whether and why it might be necessary for his theory to do so.

It is a testament to Ronald Dworkin, the scholar, that his work merits such sustained analysis and critique; it is a testament to RONALD DWORKIN, the book, that it so effectively explains Dworkin’s philosophy and offers so many avenues for engaging with Dworkin’s contributions to the several, great philosophical questions with which he has for so long been concerned.

REFERENCES:

Dworkin, Ronald M. 1986. LAW’S EMPIRE. Cambridge: Harvard University Press.

Dworkin, Ronald M. 1993. LIFE’S DOMINION: AN ARGUMENT ABOUT ABORTION, EUTHANASIA, AND INDIVIDUAL FREEDOM. New York: Alfred A. Knopf.

Dworkin, Ronald M. 1977 [1967]. “The Model of Rules I,” reprinted in TAKING RIGHTS SERIOUSLY. Cambridge: Harvard University Press.

Dworkin, Ronald M. 1977 [1972]. “The Model of Rules II,” reprinted in TAKING RIGHTS SERIOUSLY. Cambridge: Harvard University Press.

Fuller, Lon L. 1969. THE MORALITY OF LAW, rev. ed., New Haven: Yale University Press.

CASE REFERENCES:

THE ANTELOPE, 23 U.S. 66 (1825).

PRIGG v. PENNSYLVANIA, 41 U.S. 539 (1842).

TENNESSEE VALLEY AUTHORITY v. HILL, 437 U.S. 153 (1978).

*************************************************