Ronald Dworkin 1931-2013
I continue to admire the wisdom of Ronald Dworkin in recognizing that legal positivism was a dead end, and still rejecting rigidity in the so-called originalist position. His understanding of the law has been a combination of the best (not worst) of the legal/judicial philosophy Oliver Wendell Holmes, Jr. the political philosophy of John Rawls, and an elegant touch of Felix Frankfurter's jurisprudence.
Dworkin has now fled the mortal coil and will become a voice for the ages.
(Edited)
posted by Mitchell J. Freedman @ 6:37 AM
5 comments
5 Comments:
RIP
Hmm... I would not associate Dworkin with Frankfurter. (Justice Hercules would not have diissented in Baker v. Carr, or concurred in Dennis v. United States).
And boy, I don't see much in common between Dworkin and Holmes. They may have agreed on the value of free speech, and may have each dissented in Lochner, but in each case, it would have been for entirely different reasons.
A said a "touch" of Frankfurter. Dworkin would not have concurred in Dennis. But he might still have dissented in Baker v. Carr if he was pursuing his philosophical stance at the time.
I see Holmes as in the tradition of John Marshall, and Dworkin would have been in agreement with both from what I know of his interpretive analyses.
http://www.bloomberg.com/news/2013-02-14/dworkin-s-death-deprives-scalia-of-his-moral-foil.html
Not a bad article. It underscores my point. There is nothing wrong with being a moralist; I am a natural law/natural rights moralist. But I probably would have, for instance, dissented in Lochner, on federalism grounds, and refrained from imposing my moral views on the special interest legislation (masquerading as worker protection regulations) at issue in that case.
I read the article and not sure Professor Feldman is giving us Dworkin's interpretative power as much as his aesthetic. Key graf for me from the article:
"To Dworkin, who came of age in the era of Brown v. Board of Education, the idea of separating law from morals made no sense. Part of the judge’s job is to apply the Constitution. The Constitution, for its part, speaks in vague terms, using words like 'equal protection,' 'due process' and even 'the right to bear arms.' None of these terms could be understood without interpretation. And that interpretation, Dworkin argued, necessarily involved moral judgments about what would make the law the best law that it could be."
My point about the best of Holmes is that Holmes said that the essence of law is not logic, but experience. He recognized the vagueness of the phrases in the Constitution and recognized what Madison was talking about Federalist Paper no. 37, which was that experience gives more meaning to the phrases than the original "intent" of one or more Founders. That is the best of Holmes and one which Dworkin embraced. He did not embrace the denial of the moral imperative that led Holmes to support the forced sterilization of Ms. Buck under the guise of judicial restraint and making what was an immoral judgment.
The way Professor Feldman speaks of Dworkin is to make Dworkin sound more vague than Dworkin intended. Dworkin's demand for judicial integrity in the interpretative process could cut across modern "liberal" and "conservative" sensibilities, but it demanded that it be anchored in the historical record that surrounds Constitutional interpretation.
As I said, Dworkin now belongs to the ages and so the argument over what he meant has begun.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=215708
For the record, I am not an original "intent" originalist
My problem with Dworkin is that there was alway a one-to-one correspondence in each case between the result reached and his personal political preferences.
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