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This past week brought the sad news of the death of my NYU colleague, the philosopher and legal scholar Ronald Dworkin, who passed away in London after a struggle with leukemia.
Dworkin must rate as one of the most distinguished and successful academics in the post-World War II era. He and I could never be described as close friends, let alone intellectual allies. But none of those differences should be allowed to diminish the appreciation that everyone on all sides of the political spectrum rightfully had for his tremendous intellectual energy; his resourceful and subtle mind; and the deep commitment to the values of personal integrity and social equality that so drove most of his work.
In thinking about Dworkin, it is possible to find two strands to his work. The first deals with questions of political economy and the second with matters of personal morality.
On the former, Dworkin, while working in the Rawlsian tradition, was at his ingenious best in seeking to work out a set of procedures that would allow for the fair initial distribution of natural resources in ways that preserved incentives to achieve personal excellence and, through that, beneficial social gains. In so doing, Dworkin sought first to insulate all individuals from the negative results of bad luck, whether it related to their personal endowments or their control over natural resources.
His egalitarian instincts led to his ingenious and prolonged efforts to develop and defend the subtle, and often elusive, distinction between option luck and brute luck. And it led him to devise various kinds of “clamshell” auctions in Sovereign Virtue: The Theory and Practice of Equality. Those proposals do not, to my mind, better serve the task of allowing a society to emerge from the state of nature than the allocation of property rights found in the classical legal writers from Justinian through Locke, but no matter: the elegant insistence by which he pushed his favored questions has set the stage for a detailed discussion of the difficult judgments that any society has to make in designing rules to match particular resources with individual people.
Much of the difference between us, I think, stems from a matter of perspective. The moral philosopher starts with grand conceptions of social well-being. The nose-to-the-grindstone lawyer starts with the institutional difficulties of launching a cooperative scheme through government. In principle, most thinkers tend to converge toward the middle, no matter which pole they start at. But in a world with frictions, where you start often tells where you will end up. I often suggest that we should give individuals 10 points that they can divide between liberty, wealth, and equality. My ranking would be 4, 4, 2, respectively. Dworkin’s, I suspect, would be more on the order of 3, 2, 5.
Much of this difference in reflected in Dworkin’s elegant 1980 paper, “Is Wealth A Value?” (links to PDF), in which he offers some powerful criticisms of Richard Posner’s well-known view that wealth maximization should be regarded as the sole proper end of society. I was in attendance at a conference in, I think, 1979 in Chicago where these two giants squared off on the issue. Dworkin’s skill and daring in argument carried the day, I thought, in a rhetorical feat that I have rarely seen equaled anywhere else. Indeed, I have a great partiality to this paper precisely because Dworkin takes seriously a theme close to my own heart: To what extent does an increase in wealth from taking property from A in order to give it to B count as a socially good end? In it, the early Dworkin shows a commendable agility in dealing with these intricate economic issues–and drives a useful wedge between utility and wealth in the process.
Over the course of his career, Dworkin tended to spend more time on other issues of a philosophical nature. Through his creation of a character named Hercules (his personification of an ideal judge) he sought energetically to develop a theory of judging (in opposition to the work of his own teacher, H.L.A. Hart) that encapsulated how judges should strive to achieve what he regarded as the best moral theory. He then sought to apply his general views to matters of both constitutional theory and statutory construction.
Many of these questions came out in staccato form in Taking Rights Seriously. In this work, he juggles so many balls in the air at the same time that it has taken years for far less agile minds to sort out all the moves that the good judge Hercules has to make in order to do what Dworkin asks of him: develop a theory of rights that goes beyond positivism; explain what rights exist prior to the state; and be aware of the limitations that a coherent political theory places on the power of the state to limit individual rights.
Dworkin was not writing consciously in the tradition of the early natural lawyers, but the affinities between the two positions at least require some notice. As was stated on one e-mail thread that came my way: Dworkin “has at any rate made his way through the thickets of post-structuralist post-modernism to a position of Natural Law. He did not always espouse this, by the way. He was, when younger, much more historicist.”
That seems about right to me. Toward the end of his life, it seems fair to say that Dworkin became more concerned with dignity and self-respect than with questions of resource allocation. He also became introspective, asking how it is that a person should lead the good life, and even inquiring as to why and how Alfred Brendel (also one of my favorite pianists) reaches the proper interpretation of a Mozart concerto.
It is clear that the issues of interpretation that Dworkin struggled with throughout his professional life carried over to other aspects of human existence that have a much more tangential connection with law. Other learned thinkers will, with profit, seek to trace down the conflicting and confluent standards of Dworkin. For the moment, it is enough to say that he will be missed, not only at NYU, but everywhere else where serious debate is welcome. Suffice it to say that his many intellectual and scholarly contributions will long endure.Published in