Balkinization  

Sunday, February 17, 2013

Ronald Dworkin: A Eulogy

Guest Blogger

Jim Fleming


            Ronald Dworkin is widely and rightly viewed as the most important legal philosopher of our time and as one of the leading figures in moral and political philosophy. In the words of Marshall Cohen, Dworkin’s jurisprudential writings “constitute the finest contribution yet made by an American writer to the philosophy of law.” And Cohen wrote those words when Dworkin published his first book, Taking Rights Seriously, in 1977! His many outstanding subsequent books and articles made good on that early and prescient assessment. Dworkin is unmatched and unrivaled in legal philosophy and constitutional theory.

            In the words of Tim Scanlon, Dworkin is “our leading public philosopher.” He regularly published essays on legal and political subjects in the New York Review of Books from 1968 until recently. Like many readers, I eagerly opened each issue hoping to find a new piece by Dworkin. I shall miss that. As he said of Judge Learned Hand, I would say of Dworkin: he wrote like a dream. Dworkin had the rare gift of being able to write abstractly in legal philosophy and constitutional theory yet also to write accessibly for the general educated citizen. He brought out the issues of moral and political principle at the heart of the major political and constitutional issues of the day. His writing not only bristles with brilliant insights but also exhorts and uplifts. Moreover, in courageous and spirited exchanges with leading conservatives, like Richard Posner, Robert Bork, and Antonin Scalia, he gave as good as he got and then some!

            Over the years, I have organized a number of conferences in constitutional theory and Dworkin was often the most appropriate keynote speaker. In conferences at Fordham on “Fidelity in Constitutional Interpretation” and “Rawls and the Law” and at Boston University on his book, Justice for Hedgehogs, Dworkin delivered powerful and eloquent keynote lectures. The readers of this blog are likely familiar with the countless accounts of Dworkin’s brilliance as a lecturer: of how he spoke without notes and with great flair, making it all seem so graceful and effortless. Even more impressive, in my experience, was how seriously he took his lectures and how energetically he responded to his interlocutors. In the conference at BU on Justice for Hedgehogs, held when Dworkin was 78 years old, he demonstrated his characteristic energy by responding extemporaneously to all 31 commentators, one panel at a time, and elaborating those initial thoughts in a published response. I had the privilege of writing the biographical entry on Dworkin in the Yale Biographical Dictionary of American Law. I closed that entry by writing: “His work abounds with indefatigable energy, giving the impression that he will not stop making arguments until he has put the clamps of reason upon every rational being.”


            Dworkin’s famous Colloquium in Legal, Political, and Social Philosophy at New York University (with Tom Nagel and sometimes Jeremy Waldron) set the standard for rigorous, vigorous, and constructive dialogue concerning important scholarship in those fields. Many other colloquia have been modeled upon it, but none has equaled it. Dworkin and Nagel gave incisive summaries of the works being presented, asked apt questions, and pressed probing and constructive criticisms. The command and vigor with which they did so was an inspiration to all who presented work in the Colloquium and to all who participated. When Jack Balkin presented his paper on “Abortion and Original Meaning,” an early version of the project that became his book, Living Originalism, Dworkin did his typical summary, questions, and criticisms. When he finished, Jack, in characteristic humor, asked, “Can I hire you to do this?” Even Jack, who is a master at distilling his own arguments, was awed by Dworkin’s facility in doing so. (Sorry, Jack, for appropriating your anecdote.)

            Dworkin’s work in legal philosophy and constitutional theory was so powerful and fecund that it could inspire many careers wholly dedicated to building upon it and working out its implications. Dworkin (along with John Rawls) has been a powerful inspiration for my own work in constitutional theory. My Securing Constitutional Democracy: The Case of Autonomy puts forward a “Constitution-perfecting theory” that aims, in the spirit of Dworkin, to interpret the Constitution so as to make it the best it can be. Sotirios Barbers’s and my book, Constitutional Interpretation: The Basic Questions, is a response to Dworkin’s call, in Taking Rights Seriously, for a “fusion of constitutional law and moral theory.” And Linda McClain’s and my new book, Ordered Liberty: Rights, Responsibilities, and Virtues, responds to charges that liberals like Dworkin “take rights [too] seriously,” developing a civic liberalism that takes responsibilities and civic virtues – as well as rights – seriously.

            Dworkin’s successor as Professor of Jurisprudence at Oxford University, John Gardner, put it well when he said: “The loss of Ronnie takes a bit of the sparkle out of life as a philosopher of law.” But those who knew Dworkin and learned from his teaching and writing will never forget the thrill of engaging with him and building upon his work. His sparkling prose, the staggering ambition and monumental achievements of his works, and the flair and gusto of his arguments and insights will never cease to illuminate and inspire. We shall not look upon his like again. Ronald Dworkin made legal philosophy and constitutional theory the best they can be.

James E. Fleming is The Honorable Frank R. Kenison Distinguished Scholar in Law, Associate Dean for Intellectual Life, and Professor of Law at Boston University School of Law. You can reach him by e-mail at jfleming@bu.edu

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