Remembering Ronald Dworkin
Among the virtues of the philosopher and legal scholar Ronald Dworkin, who died on February 14 at the age of 81, was that he could elucidate profound issues of law and morality in their full complexity without ever descending into obscurantism. This helped make him immensely influential with fellow scholars. Yet without sacrificing subtlety and nuance, he was also able to address topical issues in forceful expository essays on contemporary controversies. This made him a formidable participant in public debates. The main issues to which he brought these talents to bear involved justice and rights.
Some of the current controversies in which Dworkin took part, often through powerfully argued essays in The New York Review of Books, involved matters coming before the United States Supreme Court. His writing dealt with such issues as whether affirmative action, sometimes called reverse discrimination, should be upheld as a means of promoting racial equal equality; whether those alleged to be combatants involved in the war on terror may be detained indefinitely without charges or trial; whether the expenditure of large sums of money by wealthy individuals and corporations to finance electoral campaigns should be equated with freedom of speech; and a host of other deeply disputed matters.
Though Dworkin did not often participate directly in efforts to promote human rights internationally, he did so on at least one occasion. At the invitation of the Argentine philosopher Carlos Nino, he traveled to Buenos Aires not long after the 1983 transition from military dictatorship to democracy. He went to consult with officials of the government of President Raúl Alfonsín about how to deal with prosecutions of leaders of the armed forces for the great crimes they committed while they held power. As a result of this visit, Dworkin wrote the Introduction for the books published in the United Kingdom and the United States that provided the English translation for Nunca Mas (Never Again), the report of the Argentine National Commission on the Disappeared. This was the body popularly known in Argentina as the “truth commission,” and it became the model for such commissions that were subsequently established in more than forty countries.
An example of Dworkin’s writing on present-day controversies is an essay he published in the London-based journal, Index on Censorship, in 1994. He wrote that, these days freedom of speech is “challenged not only by freedom’s enemies – the despots and ruling thieves who fear it – but also by new enemies who claim to speak for justice not tyranny, and who point to other values we respect, including self-determination, equality, and freedom from racial hatred and prejudice, as reasons why the right of free speech should now be demoted to a much lower grade of urgency and importance….”
Dworkin conceded that “Pornographic images hardly supply ‘ideas’ to any marketplace of thought, and history gives us little reason for expecting racist speech to contribute to its own refutation. If freedom of speech is a basic right, this must be so not in virtue of instrumental arguments, like [John Stuart] Mill’s which suppose that liberty is important because of its consequences.”
Dworkin connected freedom of speech to the idea of democracy, not as a means to an end but as an intrinsic characteristic of a system in which all may take part in self-government. He argued that “a majority decision is not fair unless everyone has had a fair opportunity to express his or her attitudes or opinions or fears or tastes or presuppositions or prejudices or ideals, not just in the hope of influencing others, though that hope is crucially important, but also just to confirm his or her standing as a responsible agent in; rather than as a passive victim of collective action. The majority has no right to impose its will on someone who is forbidden to raise a voice in protest or argument or objection before the decision is taken..."
“We may and must protect women and homosexuals and members of minority groups against unfairness and inequality in employment or education or housing or the criminal process, for example, and we may adopt laws to achieve that protection. But we must not try to intervene further upstream by forbidding any expression of the attitudes or prejudices that we think nourish such unfairness or inequality, because if we intervene too soon in the process through which collective opinion is formed, we spoil the only democratic justification we have for insisting that everyone obey these laws, even those who hate and resent them.”
The death of Ronald Dworkin means the loss of the most important advocate in our time – to borrow the title of his last known book – of “taking rights seriously.”