RONALD DWORKIN: THE LOST INDEPENDENT OBITUARY

NOTE: Due to circumstances beyond my control, the Independent double-booked the assignment to write the obit of Ronald Dworkin, the legal philosopher and one of my favourite writers in the New York Review of Books. Mine was the later assigned, and filed, so though I rushed to complete about 1,000 words in a couple of hours while watching two kids on half-term break, it went unused. I offer it here, as written and not edited by the paper. The one the paper used is good, and explains more fully than I try to the nature of Dworkin's philosphy, and the ones it argues against. It wasn't for me to insert myself into the obit, but it is my feeling that the legal profession in general prefers the HLA Hart approach to the law, as a sort of chess game taking place divorced from the 'real' world, and within the cheesboard of the courtroom. It avoids having to question one's own actions, and fall back on the zero-sum game theory of the adversarial approach, where winning is the goal, not justice. I can also recommend Godfrey Hodgson's excellent obit in the Guardian, a more personal reminiscence--and certainly the Gatsby-esque photo on the beach goes along with the best three-house arrangement I could think of.

RONALD DWORKIN: LEGAL MORALIST

Ronald Dworkin, who has died aged 81, was one of the world's foremost legal philosophers, and a forceful advocate for using morality to interpret issues of constitutional law. He was a leading scholar of constitutional law as a professor in both Britain and the United States, but he exerted equal influence in the wider world with his commentary on political issues and philosophy, most notably in the pages of the New York Review of Books, where his essays flowed like lectures, taking his audience along for an illuminating ride.

His legal philosophy was challenged most heavily from the political right, and he became a particular target when he opposed President Ronald Reagan's appointment to the Supreme Court of his former Yale colleague Robert Bork, with whom he had taught jointly a course in constitutional law. He based his opposition on Bork's strict constructionist approach, which he called a refusal to 'test interpretation of the Constitiution against the principles latent in (the Supreme Court)'s own past decisions.' Believing the framers of the Constitution had imbued it with room for moral interpretation, Dworkin often found such strict interpretations hypocritical, or in the case of the Supreme Court's 2000 decision to 'acclaim' George W Bush president, an exercise in 'professional self interest'. He wrote 'the fiat of the five conservative justices...stopped the deomocratic process in its tracks.'

Dworkin's work for the New York Review stretched from a trenchant analysis of affirmative action through the 2000 election and to the current Roberts court, which he described as a 'right-wing phalanx...guided by no judicial or political principle at all, but only by partisan, cultural, or perhaps religious allegiance'. In the New York Review he published a memorable destruction of the 2010 Citizens United decision, which applied the concept of freedom of speech to allow corporations unlimited spending on political campaign advertising, and a convincing argument in favour of 'Obamacare' and its requirement that people have health insurance. He was attacked, often derided, from the right. Bork called him a 'liberal moral relativist', and the New York Review would often run long criticisms of his articles by Harvard professor Gerald Fried, which Dworkin would then dissect in rebuttal. But Dworkin's principled stances earned the respect, if not agreement, of many on the right. Walter Olson, of the Cato Institute, wrote 'over decades of intra-left legal debate, he took the better side—arguing for the importance of individual rights, free speech, and the integrity of law as a discipline in itself'.

Ronald Myles Dworkin was born in Providence, Rhode Island 11 December 1931. His parents divorced when he was a baby, and his mother raised three children by teaching piano. He won a scholarship to Harvard, and after graduating went to Magdalen College, Oxford as a Rhodes Scholar. His final examination paper was largely critical of the theory of legal positivism, as propagated by H.L.A. Hart, Oxford's Chair of Jurisprudence. Hart saw justice embodied in adherence to the law's system of rules, not requiring the perspective of morality. As it happened, Hart was called in to be one of the reader's of Dworkin's exam, which he passed with highest marks. In 1969, when Hart retired, he nominated Dworkin as his successor to the Chair, and cited passages from that exam in his welcoming speech. They also provided the basis of his collection, Taking Rights Seriously (1977), in which he took apart not only Hart's Concepts Of Law but John Rawls' A Theory Of Justice. Dworkin argued that the law needed to be interpreted to provide justice, rather than relying on a black and white answer, because, strictly speaking, both parties in a dispute might well be 'right' to a greater or lesser degree.

After taking his Oxford exams, Dworkin returned to Harvard to complete another law degree, and then clerked for Judge Learned Hand, of the US Court of Appeals, one of America's greatest jurists. In a move he came to regret, he then turned down an offer to clerk for the Supreme Court justice Felix Frankfurter, instead joining the prestigious New York firm of Sulolivan and Cromwell. He had married Betsy Ross, whom he met while clerking for Hand, with whom they spent one of their first dates, and with the arrival of twins he found the travel demands of the job too pressing, and in 1962 took a professorship at Yale. He added the Oxford post, but in 1975 turned down Harvard and joined the faculty at New York University, helping to build its law school into one of the nation's best. Eventually, he moved to University College, London, and split time between London, where he kept a flat in Belgravia, and New York, with a colonial news house just off Washington Square. His summers were spent on Martha's Vineyard.

Dworkin's most influential book was Law's Empire (1986), which expounded his own theory of law, while in Sovereign Virture he offered a notion of society's parallel needs to allow people freedom to succeed while cushioning them against failure; that although all people were equal under the law, the law needed to realise that all people were not equal (2000). His books, like his essays, moved between the abstract principles of law, and analyses of contemporary legal issues. In Life's Dominion (1993) he examined legal arguments about both abortion and euthanasia, and A Badly Flawed Election (2002) took apart the Supreme Court's Bush v Gore decision. Justice For Hedgehogs (2011), with its title recalling Isiah Berlin, was his attempt to mix all his philosophy into one field theory, and a 16^th book, Religion Without God is forthcoming.

Betsy died in 2000, and Dworkin married Irene Brendel, the ex-wife of his friend, the pianist Alfred. He died of cancer, and is survived by his second wife, and his son and daughter from his first marriage.

MORE EQUAL THAN OTHERS: GODFREY HODGSON

NOTE: Speaking this morning about my obit of Tom Wicker, which appeared in today's Guardian and which is discussed in my preceding post, my friend Michael Goldfarb and I talked briefly about Godfrey Hodgson, the Guardian's man in Washington during much of the time Wicker was the Times' bureau chief. It reminded me of this review I wrote for the Spectator seven years ago, and it seems appropriate to post it now, because Hodgson's analysis seems so precient given our precipitous decline in the years since then, years during which most of the inequalities Hodgson warned about were increased, with little thought to the effects that might have on society. I've reprinted it as it appeared, with just a few cosmetic changes...

A SECOND, DARKER, ANALYSIS (Spectator, 15 May 2004)

In 1976 Godfrey Hodgson published In Our Time, a portrait of America in the years from ‘World War II to Watergate’. To this American, reading it newly arrived in Britain in 1977, it seemed remarkable that the best social history of my country during my then-brief lifetime should have been written by an Englishman. Hodgson's sharp eye captured both a society in turmoil and one imbued with immense postwar promise. He combined critical distance with an innate, almost American optimism.

Nearly three decades later this sequel, as its title implies, is far less optimistic. Hodgson would certainly agree with Richard Nixon’s campaign manager and Attorney-General, John Mitchell, who said, on his way to jail, ‘This country is going so far to the right you won’t recognise it.’ Certainly there’s little of In Our Time recognisable in Hodgson’s analysis of the nation today.

He now sees a country in which the postwar liberal consensus has indeed moved right, turning free-market capitalism from an economic theory into a cultural template. The result is an America in which financial segregation increasingly preserves opportunity for a wealthy elite. Quoting Mark Twain’s aphorism, ‘We Americans worship the almighty dollar! Well, it is a worthier god than hereditary privilege’, Hodgson argues convincingly that American society has come to resemble old-fashioned Europe, and its strictly class-structured elites, enchanted as much if not more by the latter than the former.

Hodgson’s analyses in cross-section, topic by topic, dividing the country into its constituent interests and ultimately bringing those sectors together. By digging beneath the surface of cause and effect, he shows clearly where political policy and social change intertwine. Nowhere is this more evident than in the central issue of race.

The Right’s current hegemony is not due to policy, but in fact a by-product of racial politics. On signing 1965’s Voting Rights Act, Lyndon Johnson said, ‘There goes the South!’ The Democratic party’s control of Congress came from its uneasy alliance of northern liberals and southern conservatives. The combination of legalised equality for blacks and the left's protest against the President’s conduct of the Vietnam war drove southern whites first to George Wallace and then to the Republicans, changing the political balance for the rest of the century.

Once in power, the overriding aim of this Republican ascendancy has been to undo Franklin Roosevelt’s New Deal. Buttressed by the postwar economic boom, the New Deal created a burgeoning middle class, expanded its educational system, provided a state-guaranteed safety net, and gave the baby-boom generation the most privileged upbringing the world had ever seen. Those baby-boomers have piece by piece dismantled the hand that fed them, until only Social Security remains from the New Deal, and it too is now under fire.

The moneyed elite in northern cities have abandoned state education, while the growth of ‘Christian Academies’ in the south has, in effect, resegregated education there. University costs have escalated while financial aid shrinks, reinforcing an eduational upper-class. Is it any coincidence that both candidates for president in this year’s election were members of the same secret society at Yale?

This paradigm repeats in Hodgson’s examination of American life. One major change from 1976, as befits a scholar rather than a journalist, is that he now draws on mounds of statistical analysis. This is not always an advantage; sometimes the numbers threaten to overpower the reportorial instincts which make his work so telling. Strangely, the most obvious factual error he makes is British, saying that the 1970s saw Arthur Ashe become Wimbledon’s first black champion. In fact, Althea Gibson had won the woman’s title two decades earlier, but her death in relative obscurity last year showed, without needing Ron Atkinson to drive the point home, that we sometimes overrate the impact of sport on the advancement of minorities.

Yet sport helps demonstrate Hodgson’s acuity. He rightly draws on Robert Putnam’s excellent study, Bowling Alone. Putnam extrapolated from the decline of recreational bowling leagues that television had destroyed the sense of community activity in America. Hodgson takes his analysis further, tracing the massive changes in the telecommunications industry, arguing convincingly that the free market has created a less responsive and less responsible media just when Americans are most crucially dependent on it.

Hodgson concludes, with typical understatement, that his book paints ‘not an altogether happy picture’. He asks if America will ‘turn back’ to ‘older and wiser’ instincts. Rarely has a call for liberalism been made in such a convincingly conservative fashion.

More Equal Than Others by Godfrey Hodgson, Princeton Univ. Press, £29.95