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.
One of the great surprises upon arriving at Bard College was meeting Norman Manea. Manea, who was born in Romania, spent four years as a child in a concentration camp, many more as a dissident, and finally relocated to NYC and Bard College. He is a prolific and exciting writer, the author of novels, memoirs and essays, and a generous colleague. The Hooligan's Return tells the exciting story of his return to Romania with Bard President Leon Botstein and his reconnection with his homeland.
In 2009, Manea gave the Wyliam Philips Lecture at The New School for Social Research. The lecture, "20 Years After the Berlin Wall: Monuments of Shame," which has only been published in Spanish as "Monuments de Vergonya." The lecture judges the consequences and meanings of the revolutions of 1989. It is not a moral judgment, but rather a remembering of the lands, places, and languages from which Manea was exiled. At the end of his talk, Manea also makes a fascinating proposal.
Manea begins his lecture with reflections on the revolutions of 1989. For one thing, freedom is not the simple blessing it is often thought:
As slavery has to be learned, step by step, in order to survive its terror and tricks, freedom must also to be learned, step by step, in order to face its chances and competitions, its rewards and restrictions.
In his novels, Manea is ever alert to the way that bourgeois comforts offer a false sense that the freedom to choose amongst restaurants or living accommodations can actually deflect us from the experience of freedom. As have many who lived under the evils of totalitarianism, Manea recognizes that there is a kind of freedom in brutal societies as well:
My dream throughout my postwar life was to find an inner resistance against the ubiquitous external pressure.
Living within yourself, it turned out, was for me the mode of resistance; it formed a center for the moral being, a means of separating from a corrupt and corrupting environment, a hope, however uncertain, for maintaining your conscience with integrity. Reading and writing were a shelter, even if menaced, and the best therapy against the poisonous spread of lies and hypocrisy.
Manea saw also that the outbreak of freedom in 1989 was going to bring dangers as well as hopes.
In addition to a "cheap and manipulated populism," that pervaded the public discourse of the new “democratic” politicians, there were of course the cheap freedoms of revenge, xenophobia, pornography and mass entertainment. This is to be taken in stride, and yet also not. We must always be alert to the morphing of freedom into its opposite:
One of the most outrageous examples of this sort of quick change act occurred in Romania, where a former court-poet of the Ceausescu clan, a fierce nationalist and anti-Semite, Comrade Corneliu Vadim Tudor became the leader of a new extreme right party called, no surprise, Great Romania. Changing only a bit the cosmetics of his old slogans, this noisy old-new agitator was elected a member of Romania’s Parliament, even becoming at one point a serious candidate for the Presidency. Today, comrade Corneliu is a member of the European Parliament. Nobody can say that afterlife isn’t interesting...
We don't have "a real alternative to freedom." We must make do with its defects and shortcomings, since the dangers of the "free system are as bad as the dogmatic remedies ranged against them. Indeed, in the end, the question always comes down to freedom – and it is right that it should.
In the interest of living with freedom, Manea closes his speech with an intriguing proposal, one that he argues would go a long way towards keeping the question of freedom present before our eyes. He writes:
Some ten years ago I proposed something very much non-utopian, and I would like to revisit that proposal. It was in an intervention I made to the famous Walser Debate of 1998 in Germany. As some of you may recall, the esteemed German writer Martin Walser, in his acceptance speech on receiving the Peace Prize of German Booksellers Association at the Frankfurt Book Fair warned against the “permanent representation” and the “monumentalizing of German shame.”
My response was to suggest that every country -- and I emphasize again every country and every people -- should complement its monuments of heroism with monuments of shame. This would mean recalling a nation’s wrong doings towards other countries, other people and also to its own people.
To love our neighbors as ourselves may also imply scrutinizing ourselves with the same objectivity as our neighbor and not to do to others what we don’t like to suffer ourselves. It is probably good therapy to look at ourselves with the same exigency as we look at others, to put ourselves in the shoes of others in order to understand their otherness. Aren’t modesty and humility and self questioning a desirable and sound exercise for being truly human?
There are such monuments to shame. Some that I recall vividly are the Apartheid museum in Johannesburg and the Memorial to the Murdered Jews of Europe, two of the most extraordinary and provoking memorials I have ever encountered. I have no idea if it is good therapy, as Manea writes, to put ourselves in the shoes of others. But it does make for an exercise in being truly human.
For your weekend read, I recommend an excerpt from The Hooligan's Return, available here.
Even better, order The Hooligan's Return here.
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