Hannah Arendt Center for Politics and Humanities
15Feb/130

Dworkin’s Law & Justice

Ronald Dworkin died yesterday, Thursday. He was 81.

For much of my early career as someone engaged in the question of justice, Ronald Dworkin was one of my imaginary antagonists. Reading Dworkin was eternally frustrating. I was consumed with the inevitable temptation to take on Dworkin’s unwavering apologies for legal power. Dworkin was the great defender of the morality of the state, an idea that I had a hard time accepting. He was an advocate for legitimacy of legal rule, which often seemed ungrounded and illegitimate. Above all, his magnum opus, Law's Empire, is a celebration of the imperial grandeur of law, when law often seemed to my youthful and often angry eye to be rather the embodiment of power, interest, and money.

For Dworkin, ‘we’—lawyers, judges, and philosophers of Law’s Empire—are engaged in the utopian project of purifying law. And law, in turn, purifies us. In being “subjects of law’s empire, liegemen to its methods and ideals,” we bridle our action and reasoning with the constraints of legal thinking. What law requires, above all, is that our actions be made consistent with the foundational moral principles embodied in and by the community. Interpreted correctly—that is, observing the integrity of the moral world—law leads to decisions that enrich a “narrative story” of who we are. It is a story that, for Dworkin, makes our practices and institutions “the best they can be.”

Law in Dworkin’s writing embodies a “flourishing legal system” and carries with itself the possibility of securing the utopian and political ideals of fairness, justice, and procedural due process.  Lawyers, judges, and especially legal philosophers, are the people responsible for dreaming utopian dreams—dreams “already latent in the present law”—and working to bring about those dreams through law and the legal system.  Law, therefore, cannot simply be conventional and self-referential; it must hold within it the promise for progressive societal change. Left, utopian politics, Dworkin states, is law.  Or, in other words, law is the center of all political and ethical progress in modern civilized states.

It is not hard to point out inconsistencies and tensions in Dworkin’s philo-legalism. Dworkin’s many critics reveled in pointing to law’s promises of equality broken and its ideal of justice contradicted. The law does not always act for good. But that means that those who would defend law’s empire have a choice. They can defend the law pragmatically and politically—arguing that law is simply a tool in the larger political struggle for justice. Or they can seek to weave the entirety of the law—good and bad—into an overarching moral universe—imagining law as an ideal that can and should in its nature propel us fitfully toward a more just world. Dworkin took the latter approach. The more I saw the impossibility of his project, the greater became my respect for the nobility and grandeur of his effort.

Much of Dworkin’s academic work is full of abstract theory. Perhaps his most enduring contribution, however, is a single metaphor. Law, Dworkin writes, is like a chain novel. And judges, he argues, are “authors as well as critics” who participate in the collaborative writing of the novel that is the law. The chain novel—in which “a group of novelists writes seriatim”—unfolds chapter by chapter, each written by a different author.  Each author is required both to fit her interpretation to what has come before—i.e. to make an interpretive judgment about the text under the assumption that it was written by a single author—and to judge which of the possible interpretations makes the work in progress the best it can be.  The judgment involves a substantive aesthetic choice; Dworkin insists that this choice is not arbitrary. It is constrained by the structure, plot, and style of the text and authors that have come before.

Dworkin’s claim is that in interpreting and authoring the chain novel, each successive author is not limited to the dichotomous choice between finding the meaning in the text and inventing the meaning of the text. Instead, “each novelist aims to make a single novel.” To do so is not simple and will involve a multifaceted engagement with the text and the principles of what has come before. The author must “find layers and currents of meaning rather than a single, exhaustive theme.” And yet, he “cannot adopt any interpretation, however complex.” Each new interpretation and creation must make the entirety of the chain novel fit together in the best way possible.

Similarly, each judge who decides a case must judge with what Dworkin calls integrity. This means that every judge must find in what has come before the “principle” that “is instinct in law.” When a judge does this, “he reports not a simple-minded claim about the motives of past statesmen, a claim a wise cynic can easily refute, but an interpretive proposal: that the principle both fits and justifies some complex part of legal practice, that it provides an attractive way to see, in the structure of that practice, the consistency of principle integrity requires.” Interpretive practice requires an author to distinguish between continuing the novel and beginning it anew.  Only judgments that continue the law’s story are judgments with integrity.

Dworkin’s analogy of law to a chain novel can be read, sympathetically, as saying: look, we have this community with these values and within it neutral judgments based on laws are impossible.  If we want law, we better figure out a way to make those judgments possible or we are back to justifying law as the rule of those with power.  Law as integrity is such a way.  You external skeptics can go around saying our community is contingent and constructed but sooner or later you are going to have to choose between nihilsim and ethical engagement.

What Dworkin yearned for was a theory of interpretation that could assimilate the entirety of the past into a common and clear narrative of the present. His model judge, Hercules, was the judge whose power of interpretation was so fecund as to master the mass of judgments, facts, and decisions into a single, best, and just narrative.

That such a herculean task is not possible—and that defending such a stance could serve as a smoke screen for the interests and power behind the law—was something Dworkin refused to concede.

In the last decade Dworkin turned from abstract legal philosophy to popular writing, which often appeared in the New York Review of Books. His writing about current issues and cases was clear, moral, and passionate—if also quite predictable. Somehow, Dworkin always found that judging with integrity required decisions in accord with a fundamentally mainstream-left-of-center point of view.

Whatever his limits, Dworkin stood for the undying idea that law—whatever its shortcomings—should aspire to do justice. For this reason alone, if nothing else, we should celebrate him.

The best obituaries so far are found in The Guardian and The New York Times. But better yet, open up your old volume of Law’s Empire. And if you don’t have it handy, here is a version you can navigate on the web.

-RB

 

Roger Berkowitz
Roger Berkowitz is Associate Professor of Political Studies and Human Rights at Bard College, and Academic Director of the Hannah Arendt Center for Politics and the Humanities. He is also the author of "Gift of Science: Leibiniz and the Modern Legal Tradition", as well as co-editor of "Thinking in Dark Times: Hannah Arendt on Ethics and Politics".
14Jan/132

When Power is Lost

Power is actualized only where word and deed have not parted company, where words are not empty and deeds not brutal, where words are not used to veil intentions but to disclose realities, and where deeds are not used to violate and destroy but to establish relations and create new realities.

 -Hannah Arendt, The Human Condition

Arendt’s conception of power is one of the most subtle and elusive features of her political theory.  Here Arendt poses the problem of power in terms of power’s loss, of powerlessness, which is also what she calls “the death of political communities.”

What is powerlessness? What, exactly, is lost when power is lost?

There are many ways to become powerless in the world of twenty-first century politics.  In the United States we often imagine that citizens would be powerless without their constitutional rights – the vote, free speech, due process.  In and around the world’s many war zones, the loss of military protection seems to produce a very different kind of powerlessness, one that is linked to both our physical vulnerability to violence as human beings and the persistence of violence between sovereign states (and within them.)  There is also the powerlessness that seems to follow from the dislocations or migrations of peoples, a condition that Arendt calls mass homelessness, which may come from the movement of peoples across borders or the redrawing of borders across peoples.  Poverty appears to be another form of powerlessness altogether, one that disrupts our capacity to appropriate nonhuman nature through labor and work and thereby sustain our lives. Arendt argues that mass destitution, alongside mass homelessness, is a form of powerlessness that is peculiar to the political condition of the modern age.

Many other kinds of powerlessness can be added to this list.  The list is disturbing not only for its variety and length, but also because the felt urgency of each danger invites us to elevate one or two above the others, so that we risk settling for powerlessness of several kinds in order to secure power in one or two “emergency” domains.  We choose between the power of kill lists and drone strikes and the power of due process for Americans accused of terrorism.  We weigh our powerlessness in the face of global warming against the powerlessness caused by the Great Recession, where the hoped-for “recovery” will be defined by consumption-led “growth,” rendered tangible by lower gas prices and more crowded shopping malls.  Or, we may think that US power in the globalizing world of free trade and faster capital flows is dependent upon “securing our national borders,” achieved through the quasi-militarization of immigration enforcement.  Hard choices are the stuff of politics - they are supposed to be what power is all about - but the dilemmas of modern powerlessness are peculiarly wrenching in large part because they are not readily negotiable by political action, by those practices of public creativity and initiative that are uniquely capable of redefining what is possible in the common world.  Rather, these “choices” and others like them seem more like dead-ends, tired old traps that mark the growing powerlessness of politics itself.

The death of the body politic, which can only occur by way of the powerlessness of politics itself, is Arendt’s main concern in the above quote.  In contrast to Hobbes, Rousseau, Weber, and Habermas, among others, Arendt distinguishes power from domination, strength, rationality, propaganda, and violence.  Located within the open and common world of human speech and action, power reveals its ethical and political limits when it is overcome by deception, empty words, destruction, and “brutality.”  Rooted in the human conditions of natality and plurality, and constituted by the gathered actions of many in a public space of appearance, power exists only in its actualization through speech and deed.  Like action, power depends upon the public self-disclosure of actors in historical time.  Actors acting together with other actors generate power.  Yet because we do not know “who” we disclose ourselves to be in the course of collective action, or what the effects of our actions will turn out to mean in the web of human stories, power itself is always “boundless and unpredictable,” which in part explains its peculiar force.  Given its boundlessness and unpredictability, power cannot be stored up for emergencies, like weapons or food and water, nor kept in place through fixed territories, as with national sovereignty.  Power therefore co-exists only uneasily with machpolitik. Power can overcome violence and strength through the gathered voices and acts of the many; it can also be destroyed (but not replaced) through the dispersal of the many and the dissolution of the space of appearance.  In-between gathering and dispersal, power is preserved through what Arendt calls “organization,” the laws, traditions, habits, and institutions that sustain the space of appearance during those interims when actors disperse temporarily and withdraw back into the private realm, only to reappear later.

For Arendt, the loss of power is the loss of our capacity to act with others in a way that generates, sustains, and discloses a common world.  Powerlessness is marked by the receding of public spaces. This may occur, for example, through the gentle decline of a formally constituted public realm into the technocratic shadows of the social, or through the brutal sovereign repression of spontaneously emergent spaces of appearance.  In both cases, our ethical and political incapacities to act together, and the philosophical inability to recognize power when we see it, are at the root of modern political powerlessness. Power-seekers, on Arendt’s view, would be well advised to cultivate a deeper political appreciation for both the immaterial force and fragility of human natality, plurality, and public space, which will be lost when power is mistaken for its rivals, like reason, strength, violence, or sovereignty.

-William Dixon

The Hannah Arendt Center
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