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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Thursday, February 14, 2013

RIP Ronald Dworkin


I have been waiting some time now for Ronald Dworkin's "Religion Without God" lectures to be released in book form. The basic idea, see also U.S. v. Seeger, is that there something "answers to moral questions or instill the universe with a glory it would not otherwise have" that we can define as "religion" and a deity is only a possible source.  He also alluded to this in Freedom's Law and other books as a means to defense personal decision-making in life and death cases like abortion and euthanasia.  The idea seems sound and descriptive of our society.

Not sure if the book will ever come given the author has died.*  I have long enjoyed his writings, including in the NY Review of Books, though have not gone into the weeds of the deeper philosophical aspects of his thought.  As one review noted some years back, Dworkin perhaps tried too hard to provide an overarching philosophical understanding of things like the constitutional meaning of the First Amendment. I think he assumed his premises some, but that's a common thing.  The most important thing is that the journey was worthwhile.  I think -- don't claim to have attacked his most learned writings -- I am basically in agreement with his major sentiments, including the fact that the law, including constitutional law, has a certain moral basis, constitutional values if you like.  And, these develop over time, judges having a duty to apply them. 
“We have the same basic philosophical issues facing us. What is the role of the judge? What rights of moral independence do people have? When, if ever, is it permissible to kill people as punishment? What is free speech about? And then Scalia says it’s American law that counts and that’s all. That’s mysterious. We’re not talking about precedent. We’re taking about sensitive people of the same general intellectual background as ours facing the same issues we face and our listening to what they have to say.”

The obit linked above itself links to a good article from 2004 (reference to the Kerry campaign) by the current NYT Supreme Court reporter (successor to Linda Greenhouse), an eleven page article with some pictures.  It discusses in part his clerkship with Learned Hand, including working with him to craft a famous set of lectures that (to his annoyance; the article has the great judge say "Fuck you") led Hand to be forced to admit under his view that Brown was wrong.  [Freedom's Law includes a similar account without the expletive.]

Dworkin was upset at this, since Hand didn't therefore change his vision.  Dworkin still thought Hand a great man, even though Dworkin's moral vision of the law clashed with his.  It also somewhat, and this was a problem for Hand too, clashed with Brown -- Brown in effect didn't go all the way, it was somewhat morally wishy-washy (see also, Naim v. Naim).  This might be a way to defend Hand, perhaps some might say he would have seen things differently after Loving v. Virginia.  No, some other now generally accepted ruling would still fall by the wayside, in part because of disputes over somewhat hazy line drawing in part moral in character. 

But, such is how law works in action.  Imperfectly with compromises that hopefully advance things in the right direction. Herculean applications of it are left to philosophers, like Ronald Dworkin.  R.I.P. 

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* With the recent death of his nemesis, Robert Bork, it is almost expected.

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