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The American writer Ronald Dworkin died in , at the age of His teaching career began at Yale in , and advanced when he succeeded H. Hart in the Chair of Jurisprudence at Oxford in But he also had practical experience that was the envy of many other jurists. And he did indeed spend the rest of his life debating, and defending his innovative thinking about law and rights, which he considered to be the bases of all political and social thinking.
His work can be understood as an unstinting effort to overcome a strict separation of law, morality and politics. For example, he defended a political liberalism that is less abstract than that of his contemporaries: although he accepted the axiom that the principles of political justice must not depend on different ethical ideas about the common good, which are necessarily particular, he nevertheless argued that liberalism cannot be indifferent to various ways of life, and cannot avoid preferring some to others.
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In other words, the freedom of individuals to determine their ways of life, their beliefs, and their ideas about the common good, does not mean that these topics must be excluded from public discussion. As a politically committed writer from the s onwards, Dworkin contributed to the defining debates of American politics, especially in his polemical articles in the New York Review of Books. For example, early in his career, he defended civil disobedience by Vietnam War veterans, and in the s he made biting criticisms of the Bush administration in the war on terrorism, in particular regarding the Guantanamo Bay military prison.
In these debates, Dworkin personified the left-wing American liberal, concerned with liberty but also with social justice. For example, he defended positive discrimination as giving minorities fair access to education and higher job positions, thus encouraging getting beyond an abstract concept of equal rights. In particular, he challenged the idea that liberty, so dear to Americans, was somehow restricted or limited by the welfare state.
He showed how liberty and equality are in fact complementary rather than opposed. So he tried to clarify the idea of equality, to demonstrate its importance to liberal political philosophy. Therefore, the individual rights that flow from liberty - and that the Constitution must uphold - presuppose equality, in particular the idea of equal protection. In other words, liberal democracy is not defined by its formal procedures upholding individual liberties, but by its capacity to treat all citizens with equal respect and attention.
Rawls asserts that individuals in the original position — i. Rawls adds to this a second principle of justice, ensuring a fair distribution of goods, in which any positions with social or economic advantages must be open to all, and must in any case work to the greatest benefit of the least advantaged. In contrast to Rawls, Dworkin believes that there is no proof that rational individuals artificially placed into such a situation would prefer liberty to well-being and wealth.
Dworkin, a constitutionalist both by education and by mental disposition, places law at the foundation of political communities. In this field, Dworkin made a name for himself by reviving the debate about the application and interpretation of law. This earliest part of his work has been slow to enter into French consciousness.
This delay came partly from a cultural difference: in these books Dworkin constructed his arguments essentially by drawing on American legal cases, and sometimes it seemed difficult to separate his reasoning from that context. Because his work focused on American constitutional law, it was not immediately accorded the place that it merited among French constitutionalists and philosophers. He had his own view of these two schools. By positivism, he meant mainly the dominant approach to law following H. Dworkin also defined himself in relation to American legal realism very powerful since Justice Oliver Wendell Holmes in the early twentieth century , more specifically to Critical Legal Studies, a school of critical thought that developed mainly in the United States in the s and s, at the same time that Dworkin was publishing his major works on the philosophy of law.
Dworkin built his arguments as reflections of and on these two schools of legal philosophy. Like realism, he questioned the scientific assumptions of positivism, in which law limits itself to stated positive law. At the same time, he also challenged the sceptical conclusions drawn by realists about the legitimacy of law and the rationality of judicial decisions: law is not just what judges want it to be.
Against positivism Dworkin asserted first of all that law is not essentially a system of rules, but is actually a political work in progress, which involves norms that are not always explicit in legal texts, notably values and principles such as dignity and the right to equal respect.
Therefore, established law and legislation are not all there is to law. Their role is much more deeply interpretative, and Dworkin gives interpretation a very broad meaning. He therefore questions the restricted role that positivism gives to interpretation in the practice of law.
In this situation, when the rules are imprecise, obscure or silent, a judge must say more than what the rules on their own imply. This room for manoeuvre left to judges is referred to as judicial discretion: in the absence of clear rules, a court can exercise normative power to resolve the hard cases brought before it.
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In this positivist understanding, judges authoritatively intervene only in limit cases, i. In other words, there is an assumption that in ordinary cases, judges can apply the law without bringing into it any personal power at all.
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Dworkin shares with the realists the belief that the positivist view of law does not correspond to reality. In his view, hard cases are not marginal cases, but central ones, which show that the law is a thoroughly interpretative activity. He also thinks that discretion is not marginal but constant: judges must always interpret the law and they always have several possible interpretations from which to choose.
Indeed, according to the realists, the law never imposes a decision on a judge. In other words, Dworkin accepts neither that law imposes on judges a single solution in most cases, nor that law imposes nothing on them and that consequently their decisions are always based on other criteria political opinions or partisanship, religious beliefs, personal background, etc.
He does not accept that judicial decisions can be reduced to expressions of judicial power. To show this, he develops a theory that gives a central place to the interpretative and evolving dimension of law, and at the same time demonstrates the constraints involved in interpreting the law.
To explain his own theory, Dworkin used a metaphor that was to become the central idea of his philosophy of law: the chain novel. This metaphor rests on an analogy between law and literature. This collective work also involves some constraints, especially for the sake of coherence. In fact, each writer is obliged to write a chapter that respects the logic and the chronology of the work as a whole.
Moreover, each of the writers has to form an idea of the overall story conveyed by the novel, and use his or her chapter to try to enhance that idea. Applying this metaphor in the field of law, Dworkin shows how judges are both narrators and interpreters of the law. In their decisions they reinterpret law and contribute to its evolution.
This metaphor thus brings two things to legal theory. First, it clarifies the temporal character of the practice of law. Scanlon, and A. SlideShare Explore Search You.
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