Jurisprudence Blogging 3: Dworkin

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Murali

Murali did his undergraduate degree in molecular biology with a minor in biophysics from the National University of Singapore (NUS). He then changed direction and did his Masters in Philosophy also at NUS. Now, he is currently pursuing a PhD in Philosophy at the University of Warwick.

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14 Responses

  1. Scalia is right, Dworkin wrong.  Dworkin’s premise is that there’s an illegitimacy to existing law [and the Constitution itself!] that the wise judge is empowered and bound to correct.  The author of the below piece agrees with Dworkin, but concedes Scalia gets the better of the argument:

    http://pages.pomona.edu/~mjg14747/034-2007/ScaliaDworkin.shtml

    Or Dworkin is right [and Clarence Thomas for that matter] under natural law principles, that no law is legitimate if it’s unjust.  But it’s not as if Antonin Scalia is unaware of the problem.  In one of my favorite pieces from him, a speech on the applicability of international law to America, he limns the problem of subjectivity:

    One who believes that it falls to the courts to update the list of rights guaranteed by the constitution tends to be one who believes in a platonic right and wrong, which wise judges are able to discern when the people at large cannot.

    In fact, it has occurred to me that this notion of an overarching moral law that is binding upon all of the nations of the world — and with which all the judges of all of the nations of the world are charged with interpreting — has replaced the common law. Those of you who are lawyers will remember that, in the bad old days, that is to say, before Erie RR v. Tompkins [304 US 64, 78 (1938)], the courts believed that there was a single common law, it was up there in the stratosphere.

    Now, the state courts of California said it meant one thing, the state courts of New York said it meant something else, and the Federal Courts might say it meant a third thing.

    But one of them was wrong! Because there really is a common law, and it’s our job to figure out what it is. So in those days, any common-law decision of one state would readily cite common-law decisions of other states, because all the judges were engaged in the enterprise of figuring out the meaning of what Holmes called “the brooding omnipresence in the sky” of the common law. Well, I think we’ve replaced that with the law of human rights. Which is a moral law, and surely there must be a right and a wrong answer to these moral questions — whether there’s a right to an abortion, whether there’s a right to homosexual conduct, what constitututes cruel and unusual punishment, and so on — surely there is a right and wrong moral answer. And I believe there is, but the only thing is, I’m not sure what that right answer is. Or at least, I am for myself, but I’m not sure it’s the same as what you think. And the notion that all the judges in the world can contemplate this brooding omnipresence of moral law, cite one another’s opinions, and that somehow, they are qualified by their appointment to decide these very difficult moral questions . . . It’s quite surprising to me, but I am sure that this is where we are.

    There really is a brotherhood of the judiciary who indeed believe that it is our function as judges to determine the proper meaning of human rights, and what the brothers and sisters in one country say is quite relevant to what the brothers and sisters in another country say. And that’s why I think, if you are a living constitutionalist, you are almost certainly and internationalist living constitutionalist.Report

  2. Avatar Michael Drew says:

    Murali, just want you to know I appreciate these posts very much.  I don’t have much to add to comments because they are so well-researched and thoroughly written.  I’ve got far more to learn from them than to add.  But I’ll continue to give them my full attention as long as you’ve got more of them to write.  It’s a remarkable series.Report

      • Avatar Tom Van Dyke in reply to Murali says:

         From this post on, I will be discussing Natural Law theories.

        Really really sorry for not reading you carefully on this, M.

        Skimmed over that bit and it was completely unfair.  I’ll echo Mr. Drew’s props and personally apologize for pre-empting your very patient unfolding of yr thesis over many posts. [Altho my impatient cutting to the Scalia chase I trust y’ll find acceptably relevant.]

        A call to order, Gentlemen [and ladies of the League, of course]:

        Our League is gifted with a gentleperson from Singapore who is culturally East Indian and still knows what “natural law” might mean—and not one Roman Catholic in 100 knows what Thomas Aquinas means by “natural law” or even who Thomas Aquinas even is or was.  This leaves me breathless.

        Let’s give the brother some space, and count our blessings he has the courage to come to us as a stranger in a strange land.  It ain’t an easy gig, even if you’re getting paid, which Murali is not.

         Report

        • Avatar Murali in reply to Tom Van Dyke says:

          Thanks Tom. Dworkin is an odd kind of natural lawyer. However odd his version of natural law theory is, it is the kind of theory that most directly addresses and responds to the most plausible of the legal positivist theories.

          Ironically, per your description of Scalia’s views (and a quick perusal of the links), it is Scalia who sounds like the positivist. Scalia’s view is that to the extent that judges resort ot moral argument when resolving uncertainty in intrpretation, they employ discretion i.e. they go outside the law. It is Dworkin, the natural lawyer who says that a judge who appeals to political morality (which seems to be just another word for the natural law) does not thereby exceed the law. i.e. political morality froms an important component of the tru natural law, which judges are ultimately aiming to discover.Report

          • Avatar DensityDuck in reply to Murali says:

            “appeal to political morality” sounds like an argument from authority.  “I know what the law says but dammit the law is wrong and I’m going to respond to the will of the people!  Of course I haven’t actually asked any of them what they think but dammit if they were good people then they would totally think like this!”Report

            • Avatar Murali in reply to DensityDuck says:

              The Dworkinian natual lawyer is going to dispute that we know what the law says without recourse to interpretation which is inherently value laden. I dont think that this is exactly correct, but I don’t think argument from authority accuraely describes what’s wrong with it.Report

  3. Avatar Stillwater says:

    Murali, I’ll echo what MD wrote above. I’ve rather enjoyed these posts but don’t understand the subject well enough to comment. Sorry bout that!Report

  4. Avatar Christopher Carr says:

    Is it just me, or is Dworkin looking a little jaundiced there?Report

    • Avatar Uji Mwuese M in reply to Christopher Carr says:

      Christopher C… I truly enjoyed your comment. Can assure you that this is the general problem with theorising of any sort… legal or otherwise. It always appears as if the one propounding the theory is going around in a ‘whirlwind’… you just have to be caught in his whirlwind or you won’t get it. Funny thing is everyone gets to talk in relation to the way he percieves things. Thus, everyone gets to be wrong in relation to the shortcoming or limitation of his perception. Ultimately, no one is hardly totally wrong anyway nor totally right. To this end, I could suggest to you that either of you or both of you (ie your noble self and Dworkin) as you presume are a little jaundiced and perhaps that goes for quite a number of the rest of us. (NB: No insult intended pls)
      That Said, I would like to tell Murali that this work is profound. Do appreciate it a huge lot. Hope to see more of this and you- more of me.. CheersReport

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