Ronald Dworkin: Third Edition


Ronald Dworkin is widely accepted as the most important and most controversial Anglo-American jurist of the past forty years. And this same-named volume on his work has become a minor classic in the field, offering the most complete analysis and integration of Dworkin's work to date. This third edition offers a substantial revision of earlier texts and, most importantly, incorporates discussion of Dworkin's recent masterwork Justice for Hedgehogs.

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Ronald Dworkin is widely accepted as the most important and most controversial Anglo-American jurist of the past forty years. And this same-named volume on his work has become a minor classic in the field, offering the most complete analysis and integration of Dworkin's work to date. This third edition offers a substantial revision of earlier texts and, most importantly, incorporates discussion of Dworkin's recent masterwork Justice for Hedgehogs.

Accessibly written for a wide readership, this book captures the complexity and depth of thought of Ronald Dworkin. Displaying a long-standing commitment to Dworkin's work, Stephen Guest clearly highlights the scholar's key theories to illustrate a guiding principle over the course of Dworkin's work: that there are right answers to questions of moral value. In assessing this principle, Guest also expands his analysis of contemporary critiques of Dworkin. The third edition includes an updated and complete bibliography of Dworkin's work.

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Editorial Reviews

From the Publisher
"The third edition of Stephen Guest's comprehensive study covers Dworkin's work from beginning to end, culminating in the big book Justice for Hedgehogs, which brings everything together in a unified theory of value—personal, moral, political, and legal . . . [I]t is a valuable guide and reference to the full range of his writings and the controversies to which they have given rise. It goes without saying that to appreciate Dworkin it is essential to go to the writings themselves, with their eloquence and argumentative density, especially Law's Empire and Hedgehogs."—Thomas Nagel, New York Review of Books

"[W]ell written and organized, the book will be accessible mainly to advanced students and scholars who have a strong grasp of contemporary moral, potitical, and legal philosophy."—J. D. Moon, CHOICE

"A presentation of Dworkin's thought that is not only analytically acute, but is self-consciously and proudly sympathetic, Stephen Guest offers a valuable assessment of Dworkin's legal, political, and moral theories. Guest's attention to the most recent work—Justice for Hedgehogs, as well as the various essays now incorporated in Justice in Robes—make the third edition a must for anyone who appreciated the first and second."—Frederick Schauer, University of Virginia School of Law

"Stephen Guest offers an admirably clear analysis and a spirited defense of Ronald Dworkin's outstanding philosophical oeuvre. Above all, Guest delivers us the key for the best interpretation of Dworkin's work: his belief that there are objectively right answers to the legal, political and moral questions we face, and that we are bound by the unity of value to see their connection."—Rainer Forst, Goethe University Frankfurt

Praise for earlier editions: "Guest sets out to present a comprehensive, concise and accessible account of his work, which he has done with clarity, honesty and even the occasional hint of a smile."—Paul Roberts, University of Nottingham

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Product Details

  • ISBN-13: 9780804772334
  • Publisher: Stanford University Press
  • Publication date: 11/28/2012
  • Series: Jurists: Profiles in Legal Theory Series
  • Edition number: 3
  • Pages: 312
  • Sales rank: 819,889
  • Product dimensions: 6.10 (w) x 8.90 (h) x 0.70 (d)

Meet the Author

Stephen Guest is Professor of Legal Philosophy at the Faculty of Laws, University College London and a barrister of the Inner Temple, London.

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Read an Excerpt

Ronald Dworkin

By Stephen Guest

Stanford University Press

Copyright © 2013 Board of Trustees of the Leland Stanford Junior University
All right reserved.

ISBN: 978-0-8047-7233-4

Chapter One

A Sketch of Ronald Dworkin

Ronald Dworkin's views are original and strikingly moral. He has a wide reputation as an energetic, original and highly intelligent and informed thinker who has said much of great political and practical importance. He has now for many decades been enormously cited in legal, political, philosophical and economics books and journals, and serious writers who disagree or agree with him are certainly united in thinking his ideas are of great significance.

His recent book, Justice for Hedgehogs, provides the most abstract and unified account. It encompasses detailed arguments for his views on method, as well as his views on ethics, morality, politics and law. In short, Dworkin thinks, like Hume, that science and value are different and there are no causal accounts of truth in value, thus making our ordinary view of free will thoroughly plausible. For him, truth represents success independently within either domain of enquiry. Value is best seen as an integral unity—no conflict—of true propositions (just as scientists say of science). His theory of interpretation is that our value concepts are inherently controversial and we must make "best sense" of them; in the case of ethical and moral value this means making the best ethical and moral sense. His theory of ethics is that we each have a duty to make our own lives valuable. His theory of morality, like Kant's, is that we should treat others as having lives that are equally valuable to our own while also observing our duty to make our own lives valuable; he therefore thinks our ethics—our "living well"—allows competition with others where such competition falls short of harming them. His theory of human dignity consists of two principles: a right to respect as an equal and a right to ethical independence. His theory of human rights is that their violation shows a state's contempt for, rather than a mistake concerning, human dignity, and may justify international retaliation. His theory of politics is that governments should respect both principles of dignity; the result is a theory of democracy. His theory of law is that law consists of the best moral interpretation of existing practices of justifying the coercive power of governments against their subjects; law is therefore a subset of politics which is, in turn, a subset of morality. Since the judicial role properly interpreted is morally integral to democracy there is no principled argument against the judicial review of legislation.

We should join this sketch with some background to his own life and times. Dworkin is an American. He was born in 1931, in Worcester, Massachusetts. His initial interest was in philosophy. He studied for the AB at Harvard College before studying for the BA in Jurisprudence at Oxford University where, at Magdalen College, he was a student of the late Sir Rupert Cross. It was there, as he said to Brian Magee, in Magee's Men of Ideas program on British television in the late 1970s, that he discovered his real interest. He then went to Harvard Law School to study law and, after graduating, became a law clerk to the great American judge Learned Hand in the period 1957–58. He became a member of the New York bar and was an associate of the New York law firm of Sullivan and Cromwell from 1958 to 1962, where he dealt mainly with international commercial transactions. In 1962 he became a professor of law at Yale University, becoming holder of the Wesley N. Hohfeld Chair of Jurisprudence in 1968.

In 1969, Dworkin was appointed to the Chair of Jurisprudence at Oxford from which he retired in 1998. Since 1975 he has been the Sommer Professor of Law and Philosophy at New York University where he spends the Fall term of each year in particular co-chairing with Thomas Nagel the well-known Colloquium in Law and Social Philosophy in the law school. In 1998 he became the Quain Professor of Jurisprudence at University College London, where he had been an active teaching and research visiting professor since 1984. His first article was on the topic of judicial discretion, published in the Journal of Philosophy in 1963, and there were several other articles, mainly review articles. They are interesting chiefly for two reasons. First, they display the anti-utilitarian strain then beginning to emerge from the wilderness of Anglo-American political philosophy. In particular, it is possible to detect the influence of Rawls's very influential article "Two Concepts of Rules" published in 1955.4 Second, they display a sophisticated awareness of the nuances of legal and political reasoning.

It was the publication of "The Model of Rules" in the University of Chicago Law Review that made his reputation. This article has three characteristic features of his later writing. It is very well written, having energy and journalistic clarity, it contains a brilliantly clear summary of the main tenets of H.L.A. Hart's The Concept of Law and above all, it presents a sustained, original and constructive attack on the thesis contained in that book. The article, now appearing as Chapter 2 of Taking Rights Seriously, has not lost its initial force and although there are changes of emphasis in his later theory the emerging thesis is clear and, I believe, mostly unchanged.

It was two years after the publication of this article that, in 1969, Dworkin succeeded Hart to the Chair of Jurisprudence in Oxford. That Chair had previously had an American holder, Arthur Goodhart, who had held it for some years until Hart came to it in 1952. English jurisprudence was then in the doldrums. As Neil MacCormick, speaking of the time, says in his book on Hart, "Lawyers had stopped being interested in philosophy, philosophers in law. Jurisprudence in the universities had become a routine reading and re-reading of a canon of texts and textbooks." Political theory was also in the doldrums. The first really rigorous and exciting piece of writing, perhaps giving a foretaste of the good writing that was to come, was T. D. Weldon's The Vocabulary of Politics, published in 1953. Things had improved at Oxford with the publication by Hart of his work The Concept of Law. Without doubt, it was because of Hart that the standard of serious legal philosophy was vastly raised. Several other publications were of some importance in the field in the fifties. People were beginning to assimilate Julius Stone's massive and important three-volume work, published earlier in 1946, entitled The Province and Function of Law. Others were the works, remarkable for their clarity and breadth of thought, Law and Social Change in Contemporary Britain (1951) by Wolfgang Friedman, followed by his Legal Theory (1967). In Britain, influential was Lloyd's Introduction to Jurisprudence (1959), which provided a clear and readable summary of the major schools of jurisprudence and, most importantly, included a large number of readings from diversely published works of jurists (although these readings were relatively common in the United States).

A transitional work was Oxford Essays in Jurisprudence, a selection of papers on jurisprudence, edited by A. G. Guest in 1961. The standard of writing was very high, although the essays now seem curiously dated. The tone of the volume was eclectic, consisting of varying analyses of "concepts," the writers dealing with topics such as "ownership," "logic in the law" and "entitlements." With the publication of The Concept of Law in 1961, it seemed that the Oxford jurisprudential die was cast. Rigor, clarity, analysis and close attention to language were its hallmarks. There was a growing interest in the subject, too, partly because of the growth in the numbers of students of law at the universities. The United States was not immune from these developments. But the traditions in its law schools, at least for the past thirty or so years, were different. In United States law schools there is considerably more interest shown in the mechanics of legal argument in the courts. Part of the reason for this interest was the great movement in American law schools in the early part of this century towards being "realistic" about what "actually" went on in courts and away from what was perceived to be a "formalistic" tinkering with legal "doctrine." That interest, coupled with the interest, natural to citizens in the United States, in the enormous constitutional power wielded by the Supreme Court to strike down legislation, set a different tone to American jurisprudence. It is not surprising that the term, used by U.S. lawyers, a "hard case," meaning by that an intellectually difficult case, is late in gaining ground here. That term does have, of course, the connotation in the United States of "hard cases make bad law." But it does, too, retain a connection with the case which is "worth appealing," as Karl Llewellyn put it. The idea has long been part of United States law. There is no equivalent in Britain, in my view, to Britain's loss.

When The Concept of Law was published in 1961, Dworkin's background was both of Oxford jurisprudence, when there had been big changes, and of the jurisprudential traditions of the United States. The sixties were times also of social transformation. It is not possible here to explore the causes of the particular spirit of liberalism generated in that time. The civil rights movement was already in existence, but there were greater changes impending. One impetus must have been the Vietnam War. Both events were major causes of the strong feeling among thinking people of the time for coherently articulated principles of governmental conduct. That, in turn, provided an impetus towards the reinterpretation and analysis of concepts such as "rights" in a more overtly political sense. Political philosophy of this sort took off and, in 1971, John Rawls finally published his influential A Theory of Justice, parts of the manuscript of which had been circulating privately for some time.

This is, briefly, the setting in which we may view Dworkin's early work. The impression various thinkers have made upon his writing is not entirely clear. Rawls and Hart have obviously made a deep impression. The milieu of legal and political theorizing in which Dworkin began writing was largely their creation. Rawls's A Theory of Justice is a stunning articulation of political principles, especially given that it broke new ground. The same can be said of Hart in legal philosophy. But Dworkin's grasp of the requirements of political justification is more abstract than Rawls's. For example, although Dworkin uses Rawls's idea of "reflective equilibrium," he is more direct and explicit than Rawls in employing it as a method of "constructing" moral argument, not "finding" it. Dworkin is also, like Hart, sensitive to the uses of language but not, as Hart was, influenced by the predominantly fifties school of linguistic philosophy.

People say that he has been heavily influenced by Lon Fuller and there are, too, distinct traces of what Dworkin says in the works of the American realist John Dickinson, whose 'The Law Behind Law, published in 1929, draws distinctions similar to the rules and principles distinction that permeated Dworkin's earlier work. Further parallels might be drawn between Dworkin's work and the methods employed in the collection of materials widely used in United States law schools of Hart and Sacks. But even though Fuller was Professor of Jurisprudence at Harvard when Dworkin was studying law there, Dworkin did not even take Jurisprudence as one of his subjects and there was little contact between them. In that period, too, in the late fifties, Hart visited Harvard and the outcome was the well-known Hart-Fuller debate on the status of legal positivism. There are parallels between Fuller's ideas of the "inner morality of law" and the integrity of which Dworkin writes. I regard the close drawing of influences in this way with suspicion. There is quite a different tradition of jurisprudential thinking in the United States which expects theorizing about what happens in difficult or "hard" cases, whether the difficulties are created by vague rules or by evil legal systems.

I don't think it useful to say that Dworkin was particularly "influenced" by any particular jurists. The chief contributors besides Rawls and Hart to the milieu from which Dworkin derives intellectual support have been philosophers who write in the mainstream of philosophy (and, perhaps, economics) rather than jurists. The major philosophers here are Thomas Scanlon, Thomas Nagel and Bernard Williams. I would mention another philosopher, Gareth Evans. Evans was a philosopher who died tragically early, aged 31. He was highly gifted, and proficient in many different fields of philosophy, including epistemology and ethics. In the period 1973–75, he and Dworkin gave a series of seminars in Oxford on the topic of objectivity in law and morality. These seminars were the anvil at which many ideas were forged. Two things about the Evans-Dworkin relationship struck me. One was their refreshingly straightforward empirical approach to the problems. It is interesting that Dworkin described himself in an interview with Angela Lambert in The Independent in 1993 as not having a good abstract grasp: that he needs to see things through examples. He is wrong about abstraction, although he is refreshingly free of the "-isms" and jargon of academic pretension, but it is certainly true that he makes the most skilful use of example; it is natural to a lawyer. His latest book Justice for Hedgehogs is a tour de force of philosophy by example. After Evans and Dworkin had given some sessions, the idea that truth might "exceed its demonstrability" was finally clarified. This idea, as you will see, is vital to understanding Dworkin's view about the objectivity of value. Evans and Dworkin then invited a number of people, on separate occasions, from other disciplines and, after explaining the problem, subjected them to the most exacting cross-examination. The point was to see whether the idea was accepted in other disciplines that propositions could be true without demonstration or proof; clearly that idea is widely accepted except by many philosophers (who, when pushed, appear to think that their skepticism about its truth also meets the test). I remember a young mathematics don, not really knowing what Dworkin and Evans wanted to know, showing clearly that he thought that maths would be impossible if all its propositions had to be proved to be true. Evans forced Dworkin to be clearer. He had an irreverent style which exactly suited this stage of the development of Dworkin's thought. Much of what was said in that period by Dworkin was published in the following ten years. A particular memory I have is when Evans forced Dworkin to say what the connection was between the justification of decisions in hard cases and the ordinary rules that make up the bulk of the law. Dworkin replied that he thought the justification was the same as the justification of the settled rules. Evans—we all did—exclaimed with a noise of contentment. One of the thrills of those early sessions (attended by only a smattering of BCL students wary of "theory" and who tailed off—but also regularly attended by Joseph Raz, John Finnis, John Mackie, and John MacDowall) was to see how Dworkin would crystallize an idea before the audience; at times it was dramatic. I've seen it since, many times.

The force of that memory will seem trite to those familiar with Dworkin's subsequent publications. But this was before the publication, in 1977, of his collection of essays, Taking Rights Seriously and, more significantly, in a time when it sounded perverse to say that democratic principles had anything to do with justifying legal decisions. When I encountered Dworkin at the first seminar he was giving in a series on legal rights (again with Gareth Evans), I was fascinated—affronted—to hear him say that he believed in "natural legal rights." To a positivist, more (myself included) Anglo than American then, this sounded so crass—wrong in so many ways. We knew what a "natural" lawyer was. He may have believed in "natural rights" but would more likely have disapproved of the idea of "rights" at all. But legal rights—it seemed it could be a positivist assertion; Dworkin's statement could not be fitted into any category which I had encountered. Perhaps the hold of these categories is still strong. Students try to pigeon-hole him as either a positivist or a natural lawyer. For a long time, at a higher academic level, interpretation of Dworkin was marked by an assumption that he must be one or the other, an assumption that should have been rendered unnecessary by the publication of Law's Empire in 1986 but wasn't.


Excerpted from Ronald Dworkin by Stephen Guest Copyright © 2013 by Board of Trustees of the Leland Stanford Junior University. Excerpted by permission of Stanford University Press. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents

Preface vii

Introduction 1

Chapter 1 A Sketch of Ronald Dworkin 11

Chapter 2 Law as Plain Fact 27

Chapter 3 The Complexity of Legal Argument 45

Chapter 4 The Interpretation of Law 65

Chapter 5 The Evaluative Coherence of Legal Argument 83

Chapter 6 Integrity and Community 101

Chapter 7 Objectivity in Law and Morality 124

Chapter 8 Treating People as Equals 144

Chapter 9 Justice for Hedgehogs 159

Chapter 10 Equality of What? 182

Chapter 11 The Basis of Liberalism 208

Chapter 12 Religion arid the Beginning and End of Life 225

Notes 245

Bibliography of Ronald Dworkin's Works 271

Index 287

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