Friday 22 February 2013
Ronald Dworkin, the world’s most famous legal philosopher, died of leukaemia on 14 February at the age of 81. He was a prolific commentator on legal and political affairs in his native US and his second home, the UK.
Dworkin was most famous for his critique of legal positivism. For the legal positivists, what constituted the law was simply that which had been posited. The law exists in the black-and-white legal instruments that have been made by the various institutions of a given society. The question as to whether something is a law or not is a question of whether a legal instrument – a statute, a judgement or similar - is accepted by officials within that jurisdiction as enforcing norms.
For Dworkin, ‘the law’ described an abstract that determined the way all cases ought to be decided. Reaching the answer involved interpreting past legal practice in conjunction with moral and political principles, to reach the right answer about what the law is and how it should be applied.
His legal philosophy made him, in one sense, a proponent of what we would call ‘judicial activism’. But to call him a judicial activist would be misleading. For Dworkin, there was no way that ‘activism’ could be avoided. Judges inevitably make moral decisions when deciding on vexed constitutional questions, because the questions themselves are fundamentally moral. What documents like the American Constitution provide is simply an abstract set of moral propositions, which lawyers and judges must interrogate in order to find the deeper moral truth these propositions hint at. Constitutional cases in the US involve judges deciding how to apply the abstract terms of the Constitution, like ‘Congress shall make no law abridging freedom of speech’, to specific moral and political questions of the day. Ruling, and working, on such cases is not simply a case of understanding what is written down; it also involves making ‘fresh moral judgements’ about the questions the case poses.
Not that judges or lawyers would ever admit to being moral about their work. Dworkin argued that lawyers and judges are in a state of denial about what they do when they interpret the law - a state he charitably called ‘constitutional confusion’. He referred to the various theories of justification used by judges to explain their decisions, such as ‘originalism’ - which describes a process of interpreting the law through attempting to understand what the drafters of the law would have intended when drafting it and applying it literally in accordance with those intentions - as ‘embarrassingly unsatisfactory’. He thought conservative judges make conservative decisions, and liberal judges make liberal decisions, precisely because they had certain political and moral views about the questions involved in the cases they judged.
While pointing out that judges have immense power to decide society’s moral and political questions, Dworkin also elevated individual rights above the formal law. Where a legal decision calls into question an individual’s rights, that doesn’t mean those rights no longer exist, said Dworkin; an individual affected by a judgement may well think that the judge had got it wrong, by misapplying his or her moral or political judgement. Our rights do not disappear simply because a judge makes a decision about them one way or another.
It is very rare to find a lawyer – and Dworkin was, among other things, a brilliant lawyer – who will argue so forcefully for a role for morality in legal decision-making. Dworkin’s promotion of a moral view meant he was critical of democracy, bemoaning the partisan nature of American politics as ill-suited to achieving social justice. He argued that political discussion should proceed on the basis of shared ‘principles of personal and political morality that we all respect’. Dworkin’s assumption of a common departure point, a point which could apparently be established without contestation, suggested that his faith in the US and UK judiciaries to decide society’s moral questions sometimes made him rub up the wrong way against the ideal of democracy.
But he wasn’t a legalist. He did not believe that what the law says goes. Indeed, he was a passionate defender of liberty and critic of determinism, of the idea that our fates are written and our ability to choose is constantly being defeated. The moral questions that lie at the centre of legal decision-making were not just for judges to answer and the rest of us to accept, he believed; rather, law is the expression of politics and morality and the imperfect codification of a society’s values. It was his highlighting of this connection between the law and social morality, between the black letter of the statute book and the hearts of the citizens whom the law rules over, which placed Dworkin at the centre of popular discussion about legal issues, and rightfully made him the most revered legal philosopher of our time.
Luke Gittos is a paralegal working in criminal law and convenor of the London Legal Salon.
reprinted from: http://www.spiked-online.com/site/article/13372/