RIP Ronald Dworkin (1931-2013)


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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26 Responses

  1. Michael Drew says:

    I’m going to have to run sooner than I want before a discussion gets underway, but I wanted to highlight a short reflection (actually, I think it’s a lecture prompt) that Tom Van Dyke first linked to in which a professor considers Dworkin’s understanding of how his idea of “principles” for application of law to facts compares to Justice Scalia’s ideas about them. I think this usefully makes concrete some of the ideas of Dworkin’s that Murali explains in his post, and thus perhaps provides a potentially helpful jumping-off point for any discussion of the post that I hope happens (though by all means, I hope people pursue whatever their primary interest in the subject might be before engaging this one).

    It’s fairly short (sort of), so just to get it on the table, I’ll quote it in full in addition to providing the link. (This professor has some other nice schematics for these debates that might be helpful to any laypersons like myself still working on getting up to speed on the basics.)

    Class notes for 27 February

    Main points
    Scalia thinks that statutory and constitutional interpretation is, at bottom, history. What did people in a historical period think the statute or constitution meant?

    Dworkin thinks it’s moral philosophy. What is the best understanding of terms that express our values, such as “cruel”?

    And he thinks he can show this even on Scalia’s own premises. That is, Dworkin thinks he can show that, as a matter of historical fact, the original meaning of the US Constitution is that we must use moral philosophy in order to interpret the Constitution.

    Politically, I’m with Dworkin. But I think Scalia wins this argument.

    Do we talk like that?
    It all comes down to a disagreement about what the principles in the “principled reading” mean.

    Dworkin thinks the principles in the “principled reading” are open-ended. For example, the original principled meaning of the 8th Amendment is that we should avoid whatever punishments are in fact cruel. The principle is that cruel punishments are wrong. To comply, we have to discover what cruelty truly is. The Amendment applies to any punishment that is cruel, even if the true meaning of “cruel” is remote from the way it was understood in the late 18th century.

    Scalia also thinks the principles in the “principled reading” of the 8th Amendment are open. The Amendment tells us to apply an abstract term, “cruel” rather than giving us a list of forbidden punishments. But Scalia does not think that the original meaning of the Amendment could be as open-ended as Dworkin thinks it is. In particular, he thinks the original meaning of “cruel” is closely tied to practices of the late 18th century. The point of the Bill of Rights, he claims, was to prevent future societies from departing too much from the values of the society that wrote it.

    So whose principled reading is the better one? Bernice said that we don’t talk in the open-ended way that Dworkin attributes to the authors of the Constitution. I think she’s right.

    If the authors of the Constitution had meant what Dworkin says, they would have had to have thought that a future society could discover that putting criminals to death was cruel. That is, they had to have believed that it was possible that they were making a horrible mistake. What struck them as a just reward for criminal behavior was actually cruel depravity. I think it is unlikely that they believed that.

    Why? Well, think about some of the values that you hold dear. Could people in the future discover that you’re deeply mistaken? Could they find that racial discrimination is OK? That infants can be killed if they’re a bother? That physical deformities are funny? That there’s nothing disgusting about … I think we’ll stop there. You get the idea. Future societies may believe these things; they will almost certainly have different values than we do. But it’s very hard for us to see their beliefs as improvements on our own.

    I’m not saying that this makes sense. Most of us think that our beliefs are an improvement on those held in the past. We know more than they did about the morality of racial discrimination, the proper treatment of infants and the disabled, and so on. But we’re not willing to concede that the future might hold similar improvements. But why think that moral progress should stop with us? That’s quite unlikely.

    But let’s not ask whether our attitudes towards moral progress make sense. My conjecture is that the authors of the Constitution shared those attitudes. And so I think that Bernice is right. None of us leave it open that there could be significant discoveries about what is really cruel. And so it’s unlikely that the original meaning of the 8th Amendment left that open.

    But, of course, this is merely conjecture. As both authors insist, the answer depends on historical evidence. And, oddly enough, we don’t have any from these readings.

    On and and or
    Those of you who have taken formal logic know that “and” has a special meaning. “A and B” is true if and only if both A and B are true.

    So what about the prohibition on cruel and unusual punishment? Is a punishment prohibited only if it is both cruel and unusual? This was Victor’s question.

    My answer? Nah.

    In informal language, such as our everyday English, “and” sometimes has the same meaning as the formal logical term “or”. “C or D” is true if and only if at least one, and possibly both, of C and D is true.

    That’s the way “and” is used in the following sentence: “Men and women are permitted in the smoking lounge” (credit to Prof. Atlas for that one). This does not say that the smoking lounge is open only to the hermaphroditic.

    So a punishment is ruled out by the 8th Amendment if it is either cruel or unusual. It doesn’t have to be both to run afoul of the Amendment.

    Again h/t to Tom Van Dyke for this link. 😉Report

    • Stillwater in reply to Michael Drew says:

      But let’s not ask whether our attitudes towards moral progress make sense.

      That’s a pretty casual dismissal. I tend to think the moral realism is true, then moral progress is also real and measured by the epistemological progress we make in understanding and clarifying moral terms and truths. If moral relativism is correct, we can still measure progress within a moral framework by the consistency with which those concepts are applied to new situations or discarded as a result of those inconsistencies. That’s an epistemological process as well.

      If the issue presumes an a priori justification of a bare moral fact is necessary to make moral progress, then I agree with the quotation. The question makes no sense divorced from the types of practices humans engage in. So any compelling will almost certainly include empirical evidence as well as certain types of logical properties (like consistency with other moral facts, for example).

      {{I’ve been looking for a very nice paper on Moral Progress but can’t remember the author’s name. I’ll keep looking. But the moral of that paper (hah!) as I understood it is that the claim to moral progress has just as much legitimacy, if not more, than theoretically motivated views about moral relativism or anti-realism denying there is such a thing.}}Report

      • Murali in reply to Stillwater says:

        You don’t have to be a moral anti-realist to be sceptical about moral progress. You just have to be sceptical about the contemporary moral zeitgeist. Also, you can just be sceptical about the link between moral psychology and moral knowledge.Report

        • Stillwater in reply to Murali says:

          Sure, there are arguments that the concept of moral progress is either a confusion or empirically false. But there are arguments that moral progress is real as well. So, does according rights to all people within a society constitute moral progress relative to a limitation of those rights derived from arbitrary properties? It seems like the answer is clearly “yes” since arbitrary properties ought not determine the possession or expression of rights. Granting the same set of rights (or extending them to, or etc.) to all citizens seems very much like – identical to, even – moral progress.

          Of course, the concept or progress in play here depends on the actual according of rights to certain members of a society. So the concept of moral progress in the above case depends the fact that rights are accorded to certain members of society as well independently of those rights philosophical justification.

          That is: insofar as rights being accorded to a subset of society is justified as a good thing, extending those rights to others otherwise arbitrarily excluded is also a good thing. It constitutes progress.Report

          • Murali in reply to Stillwater says:

            Stillwater, sorry it took so long to get back to you.

            That is: insofar as rights being accorded to a subset of society is justified as a good thing, extending those rights to others otherwise arbitrarily excluded is also a good thing. It constitutes progress.

            I agree that is is a good thing. It may even constitute progress. But I think that the progress thesis is not so thin. Talk about moral progress also contains connotations of inevitability. There is the idea that in the long trend of history things have been steadily getting better. And it is this latter theses which requires examination. That societies will over time if not invaded and their operation not interfered with in a hostile manner (sanctions etc) will over time converge to some sort of liberal order seems plausible. But it seems that once there, all we can expect is that societies will move through a range of liberal orders and we would not be able to tell with any surety whether there always will be some kind of improvement with each step or even over the long term.Report

    • Gaelen in reply to Michael Drew says:

      Reading both the OP and Micheal’s post I couldn’t help but think of O. W. Holmes famous quote, “the life of the law has not been logic; it has been experience.” And while he was discussing the common law, it seems appropriate for Dworkin’s theory.

      “Have any legal principles fallen into disuse simply because of their moral content.”

      The OP was a little over my head, but it seems like separate but equal might fit this description.Report

    • Rod Engelsman in reply to Michael Drew says:

      Perhaps (probably!) I’m missing something here… but it looks to me like, as it stands, Scalia is saying we have to understand “cruel” wrt to 18th century standards.

      Ok. But that would seem to mean that we could repeal the 8th and replace it with a new amendment using the exact same language and then “cruel” would magically refer to contemporary understanding.

      And that just seems bizarre to me.Report

      • Stillwater in reply to Rod Engelsman says:

        I think Chris hit on your point a few threads ago when he said that the idea individuals living in time and context 2 can glean the meanings of words and sentences expressed by individuals in time and context 1 is incoherent. Our interpretations of the earlier words are necessarily by how we use and understand terms currently. And I think you’ve given a perfect example of that.

        With vague concept (eg, cruel) people often list types of activities the help provide the meaning of the term. Often, the list is confused with the meaning of the term. So for example, someone might argue that the Founders clearly never meant for water-boarding to constitute cruel punishment because it’s impossible (let’s just say this is the case) for the Framers to have included that practice in a list of cruel activities. That way of thinking about things seems backwards and slightly incoherent to me.Report

      • kenB in reply to Rod Engelsman says:

        I don’t think it’s so bizarre if you think of the Constitution like a contract. Imagine if people signed a contract 50 years ago, saying that if either one of them was cruel to an animal, he would have to pay the other $1000.00; but at the time they agreed to this contract, they were in a community where raising dogs to fight each other was normal and not considered cruel, and in fact both of them did this at the time. Thirty years later, one of them has a change of heart about dogfighting (as has a large part of the community they belong to) and accuses the other of cruelty to animals due his continuation of the practice. The other says that whatever “cruel” might mean now, at the pointwhen he signed the contract dogfighting clearly wasn’t considered cruel, and he never would have agreed to the contract if he thought that it wouuld mean he couldn’t do that. Whatever you might decide if you were the judge for this case, the dogfighter’s argument at least seems reasonable, no?

        Now imagine that instead of this being a contract between two people from 30 years ago, it’s a contract between two organizations and it goes back 200 years, so that the people who originally agreed to the contract are long since dead. Does that change the reasoning at all?

        One can object to being governed by 200-year-old dead white males, but on the other hand there’s a value to keeping the law from changing right under our feet — ideally what’s legal today is legal tomorrow unless the law has explicitly been changed, or else we can never be quite sure what’s legal.Report

        • kenB in reply to kenB says:

          Ugh — “imagine if two people…”Report

        • Stillwater in reply to kenB says:

          Imagine if [two] people signed a contract 50 years ago, saying that if either one of them was cruel to an animal, he would have to pay the other $1000.00; but at the time they agreed to this contract, they were in a community where raising dogs to fight each other was normal and not considered cruel, and in fact both of them did this at the time.

          A contract about cruelty to animals that neither defines “cruelty” precisely enough to exclude dog-fighting nor explicitly excludes dog fighting isn’t much of a contract, is it?Report

        • Gaelen in reply to kenB says:

          I think there’s a lot of truth to this, though I would mention that a contract between two people who had (relatively) clear views on the meanings of the words used is difficult to analogize to the interpretation of constitutional provisions.

          The Eighth Amendment is maybe the best example. Some framers (if not all) seemed to think they were adopting a rule against barbarous punishments from the English Bill of Rights, through language lifted from Blackstone’s Commentaries. There is a, to me at least, compelling argument that they misinterpreted both Blackstone and the English Bill of Rights, finding a prohibition on torture and the like where the EBR dealt with severe or excessive punishments.

          Moving to what the framers actually thought they were doing (which is certainly clearer), what exactly constituted the cruel and unusual punishments was not agreed on by all participants. The only debate in the Congressional Annals is two representatives saying (basically), this clause is really ambiguous, with the second mentioning that it would seem to outlaw certain things (like ear cropping) that are reasonable punishments. The motion was then accepted. There seemed to be a general feeling (mentioned in explaining why the bill of rights would prohibit torture) that this outlawed the barbarities of Stuart England, though the definition was never precise (and because the US rarely if ever imposed those punishments, was never fully articulated).

          This was an incredibly long winded way of saying that a narrow intentionalism, focused on the founders understanding, is hard to discover (and probably useless–as ear cropping is not that common anymore), and limited to the context in which the clause was drafted. Couple this to the numerous elite and common actors, their interpretations and opinions, and it becomes almost impossible to pin down the original intent. I view the beauty of the constitution to be the vague articulation of abstract principles, ones which can applied to our present circumstances according to present (and admittedly contested) understandings.Report

          • kenB in reply to Gaelen says:

            No disagreement here — I wasn’t advocating any particular flavor of originalism, just defending the abstract principle of interpretive stability.Report

            • Gaelen in reply to kenB says:

              Yeah, I didn’t mean to imply you were making an argument for a strict original intent theory of constitutional interpretation (little bit of straw manning on my part–I don’t even think Thomas goes as far as I went).Report

        • Rod Engelsman in reply to kenB says:

          So how far do you take that principle? In the 2nd amendment are we to understand “arms” to mean single-shot muskets and exclude weapons of modern construction? Does “the press” only refer to material printed on paper or does this internet-based forum count as well?

          Now I think the answers to my questions are obvious, and I view the arguments of some of my fellow liberals that try to argue the above wrt to the 2nd to be sophomoric. But given a choice between deciding for ourselves what vague terms like “cruel and unusual”, “due process”, and “unreasonable” mean versus attempting to read the minds of people long dead, I firmly believe we have both the right and the duty to work this out for ourselves.

          And, quite frankly, when in particular we’re attempting to parse the meanings of words and phrases that carry a heavy moral freight like “cruel”, I’m not sure why we should defer judgement to those now-dead people who thought it was just fine to own other people like livestock. Maybe we can’t do better, but it’s hard to see how we can do worse.Report

          • kenB in reply to Rod Engelsman says:

            Well, what do you really mean by “deciding for ourselves” in the context of an entire country? Wouldn’t that be equivalent to the majority opinion? When it comes to “cruel and unusual”, the last few decades have mostly seen a minority of the public from the left trying to thwart the will of the majority by arguing that “cruel and unusual” means something other than what the majority thinks it does — if you’re on the side of the left in these debates, then where would you derive the moral authority to overrule the majority’s opinion about the proper semantic extension of those words?Report

            • Will H. in reply to kenB says:

              What if “cruel” is just a state of mind requirement?
              That absolutely anything, provided it is not unusual, is A-ok so long as it’s not maliciously inflicted?Report

              • Gaelen in reply to Will H. says:

                Scalia has turned ‘cruel’ into a state of mind requirement, though only for conditions of confinement cases. Which isn’t really backed up by the history, and, outside conditions of confinement, is almost impossible to show (proving mens rea for an individual is hard, but for a government, society, its hard to imagine how it would work).Report

            • Rod Engelsman in reply to kenB says:

              Flesh this out: are you talking about capital punishment? I’m not sure how you think the left is “thwarting” the majority there. I mean… I disagree with it, and when the subject comes up I advocate for it’s abolition. But surely that’s allowable in a Liberal polity, no?

              I recall back in the 70’s when the S.C. held for a time that the death penalty was unconstitutional that part of their reasoning was based on more than half the states having abolished it as well as practically all the rest of the civilized world. So I think it’s fair to say that majority opinion, ultimately, does decide what’s cruel and unusual. I mean… if very few jurisdictions are doing it then that would at least seem to count as “unusual” I would think.

              But let’s look at something a bit less inflammatory; due process. Does any old process qualify as long as it’s codified or uniform? Or do concepts of fairness apply as well? I’ll confess to having only a vague idea of how to define something like that beyond looking at a particular situation and thinking “that seems right” or “that seems wrong.”Report

              • Murali in reply to Rod Engelsman says:

                Due process refers to public standards o for what count as sufficient care to avoid type I errors. It seems that wanting to avoid prosecuting innocents sounds like a moral desiderata. And it sometimes can be.

                But note also that in some jurisdictions, it is possible that there may be no due process at all. Or what counts as due process in one jurisdiction may not actually be sufficiently substantive to avoid type I errors in the main part. It may be that some jurisdictions aim at avoiding type II errors as well. But arguably the latter is not truly morally defensible.

                It seems hard to say that morality is inseparable from the law in this sense. This means that concepts of fairness don’t necessarily apply unless there is a legal history of the application of such a concept. Whatever notion of “fairness” that is used should not be the most philosophically or morally appropriate one, but the one that has the most institutional support. In part, that is because that is what the law is. The scope, meaning and application of legal principles depends not on the actual morality of the situation, but what the legal institution can support as a system of regular rules and norms that are to guid action and assist planning.Report

  2. DRS says:

    If you want a source for several essays and reviews he wrote, go to: The articles with the little lock beside the title are behind a paywall but the others are free.Report

  3. Will H. says:

    I got something a lot different out of this the second time around.
    And I’ll say a lot of my understanding is colored by my (scant) knowledge of the development of tort law, and by the extension of the rights secured by the Bill of Rights to the states.
    And specifically: the recognition of tortious interference as a tort (occurring in 1854, iirc), the Uniform Fraudulent Transfer Act of 1984 (a notable instance of tort reform), and Gitlow v. New York (where the First Amendment was made applicable to the states).

    I’m not going to go on and on about that; but instead to respond to your questions at the end:
    1). A system of morality can only be properly understood within its own framework.
    2). Lots and lots. Getting credit from a lending institution was something very different in the 60’s.
    3). I think it’s really the reverse; that legal considerations hinge on some manner of moral consideration. Otherwise, rebellion results.
    4). I don’t think it’s really so much the ordering, but their functionality that he was concerned with.
    5). I believe that, in this case, it’s definitional; much like we use the term “corn” to mean “maize.”
    6). Yes, the law always requires interpretation, and No, those judgments need not be morally based. A ref can call a game of football, but someone has to actually determine if the ball being used is a “football;” which I think you probably have a dim understanding of what constitutes a “football.”Report

    • Murali in reply to Will H. says:

      Regarding 3. It is true that rebellion starts if laws are unjust. But all that means is that laws should be just. That says nothing about what the laws currently are. Considerations of justice should underwrite our laws. But that says nothing about what the laws actually areReport

      • Will H. in reply to Murali says:

        I think in this instance there are different layers of law in force.
        Tyler’s Rebellion is the one that comes immediately to mind.
        Vigilanteism is the natural result of denial of access to the courts.
        If justice is unavailable in a court of law, then justice will be rendered in venues other than courts of law; justice will be done at the turn of every corner.
        This too is law.Report

  4. BlaiseP says:

    1. A wicked legal system seems to be a contradiction of some sort. Wickedness comes in two flavours:

    a) Arbitrary justice which flouts the law as set forth.
    b) Justice which fails to incorporate external moral systems, as in the case of slavery.

    2. Law ought to emerge from the legislative branch. If sufficient political pressure is applied, laws could be repealed. As changes the tenor of the legislative, so changes the judicial. Can we then point to any basic principles upon which the law relies beyond the institutions which give it mandate? Even the Constitution is amendable.

    3. Legal positivism is usually an attempt to correct a previous wrong, as in Affirmative Action or the revisiting of treaties with the Native Americans. If legal positivism manifests itself in law, it’s usually the product of #2 above.

    4 and 5. Principles are always vague, however firmly the pulpit is thumped. Rules are concrete. Rules are laws, with evidentiary requirements for convictions. Consider the downside of legal positivism: like the little old lady who swallowed a fly, then a spider to eat the fly, then a bird, then a cat, etc. one bad rule leads to another corrective rule. As truth is the first casualty of war, so principles are the first casualty of legislation.

    6. Laws can only guide judgment. The law does require interpretation, if only to determine its applicability to a given case brought before the court. Dred Scott was decided on the basis of property law. The Constitution of the United States recognises slaves as property, and pledges the Federal Government to protect it. And Congress cannot exercise any more authority over property of that description than it may constitutionally exercise over property of any other kind.

    A working justice system, like any rules based system, doesn’t really think. A vending machine interprets your paper dollar the same way it deals with four quarters or ten dimes. Somewhere, a register sums the value. That register, not the bill reader or the coin slots, will enable the choice button. It all comes down to what the word “Interpret” means, I suppose.Report

  5. Michael Drew says:

    Just waned to highlight this post as pretty interesting and fair assessment of Dworkin’s work from a Left-ish perspective, that one being the one whose imperatives Dworkin, broadly, tried to carve out a place for in American legal philosophy and jurisprudence.Report

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