Book Review: Justice for Hedgehogs by Ronald Dworkin
Even lawyers who are not interested in ethics and morals should be fascinated by the brilliant book Justice for Hedgehogs (2011) by Ronald Dworkin.
His treatment of parliamentary sovereignty points the way for twenty-first century policy in the light of law as an interpretive concept. This contrasts to Lord Neuberger MR's recent conservative treatment of sovereignty which may leave us wondering why history stopped after the civil war, the Glorious Revolution of 1688, the Bill of Rights 1689, and the Act of Settlement 1701. Has nothing happened since? Wasn't there a Holocaust? Do people not need protection against abuses by majorities? What if Parliament abolished judicial review or the ordinary role of the courts? Neuberger refuses to test the need for change against hard cases, saying that such arguments are unreal, they involve "postulating a wholly different Parliament from that which we have ever known" and – I sarcastically interpose - everyone in Northern Ireland would cheer to that, but he adds "and, if that arose, there would presumably be a very different judiciary from that which we have ever known." Amazingly, he continues "Further, a Parliament which was prepared to prevent citizens having access to the courts would presumably be unconcerned about the rule of law, in which case questions of constitutional sovereignty would be of no real significance in practice." Well, no, not if the judges sat on their hands. The issue would have to be fought out in the streets.
For those who dislike the idea of revolution as the only answer to a moral crisis of that magnitude, Dworkin's argument is compelling. His thinking has developed since (brace yourself, I'm going to use the cliché seminal) his seminal "Taking Rights Seriously" (1977). He now sees law as a branch of politics, rather than as a system separate from but interacting with morality. The change is because Dworkin has recognised the circularity of treating law and morality as separate but interrelated systems. How would they interrelate? If that is a legal question, the answer depends on an assumption about the role of morality in reading legal material; the alternative is to assume it is a moral question. This logical difficulty, says Dworkin, is what led to the "concept of law" jurisprudence, which treated the relationship between law and morality as neither a legal nor a moral question, but as a "conceptual" one. Here the problem is that people don't agree on which propositions of law are true. That, however, is unavoidable, and Dworkin looks to an integrated network of political value to construct a conception of law. Ethics produces personal morality which produces, as a subdivision, political morality which produces, as a subdivision, law. There may be, therefore, some valid laws that are too unjust to enforce.
But I have focused here on his final chapter, while on the way Dworkin has discussed a huge range of fascinating ethical and moral questions. His aim is to demonstrate how we can coherently think about questions of values. The integration of our understanding of interpretive concepts produces a unity of values. Interpretive concepts are those about which we share a general understanding, but we may disagree about their application in particular cases. Justice, right or wrong, helping, harming, keeping promises, obligations arising from relationships, equality, liberty, democracy, and law are all interpretive. The truth of an interpretation is determined by its consistency with the two principles of dignity. The first principle of dignity is that the success of one's own life has objective importance, and, as a corollary, all lives are equally important. The second principle of dignity is that we each have personal responsibility for our own life; we must each make our own decisions and so lead authentic lives. Self-respect comes from taking our own life seriously and in that sense living well: we must strive to make our own life a successful performance by creating value in it. The two principles of dignity interact to guide ethics (how to live well) and morality (how to treat others), which in turn are mutually reinforcing: living well requires treating others well, and respect for others enhances self-respect.
That is an outline of the skeleton of Dworkin's conception of the unity of value. There have been times when, as a lawyer, I have wished that the people who write complicated statutes would reveal the whiteboard diagram which they devised to guide their drafting. So too with this book. It has to be worked at rather than skim-read. Notes have to be scribbled in margins and end pages filled with references. Yes, the first chapter serves as a travel guide to the journey ahead, but there are times when Part One (Chapters 2 to 5) slows down while Dworkin deals with anticipated challenges from academic philosophers, requiring detailed conceptual distinctions on issues that most of us, since we have bought the book, will be prepared to take on trust just for the sake of getting to his point. But it would be wrong to be discouraged by the initial labours, as once we have appreciated the book as a whole we can go back to the details. Some readers might think a glossary would have been useful, but the index is a well designed work-around. Having grumped about diagrams, I suppose I should let you look at mine, here.
For an indication of what you will find in Justice for Hedgehogs, here is Dworkin's essay from a recent issue of the New York Review of Books (10 February, 2011).
This wonderful book will delight anyone who wants a systematic approach to deciding what is right. It would be a dull person indeed who did not feel the resonance of Dworkin's conclusion:
"Without dignity our lives are only blinks of duration. But if we manage to lead a good life well, we create something more. We write a subscript to our mortality. We make our lives tiny diamonds in the cosmic sands."
His treatment of parliamentary sovereignty points the way for twenty-first century policy in the light of law as an interpretive concept. This contrasts to Lord Neuberger MR's recent conservative treatment of sovereignty which may leave us wondering why history stopped after the civil war, the Glorious Revolution of 1688, the Bill of Rights 1689, and the Act of Settlement 1701. Has nothing happened since? Wasn't there a Holocaust? Do people not need protection against abuses by majorities? What if Parliament abolished judicial review or the ordinary role of the courts? Neuberger refuses to test the need for change against hard cases, saying that such arguments are unreal, they involve "postulating a wholly different Parliament from that which we have ever known" and – I sarcastically interpose - everyone in Northern Ireland would cheer to that, but he adds "and, if that arose, there would presumably be a very different judiciary from that which we have ever known." Amazingly, he continues "Further, a Parliament which was prepared to prevent citizens having access to the courts would presumably be unconcerned about the rule of law, in which case questions of constitutional sovereignty would be of no real significance in practice." Well, no, not if the judges sat on their hands. The issue would have to be fought out in the streets.
For those who dislike the idea of revolution as the only answer to a moral crisis of that magnitude, Dworkin's argument is compelling. His thinking has developed since (brace yourself, I'm going to use the cliché seminal) his seminal "Taking Rights Seriously" (1977). He now sees law as a branch of politics, rather than as a system separate from but interacting with morality. The change is because Dworkin has recognised the circularity of treating law and morality as separate but interrelated systems. How would they interrelate? If that is a legal question, the answer depends on an assumption about the role of morality in reading legal material; the alternative is to assume it is a moral question. This logical difficulty, says Dworkin, is what led to the "concept of law" jurisprudence, which treated the relationship between law and morality as neither a legal nor a moral question, but as a "conceptual" one. Here the problem is that people don't agree on which propositions of law are true. That, however, is unavoidable, and Dworkin looks to an integrated network of political value to construct a conception of law. Ethics produces personal morality which produces, as a subdivision, political morality which produces, as a subdivision, law. There may be, therefore, some valid laws that are too unjust to enforce.
But I have focused here on his final chapter, while on the way Dworkin has discussed a huge range of fascinating ethical and moral questions. His aim is to demonstrate how we can coherently think about questions of values. The integration of our understanding of interpretive concepts produces a unity of values. Interpretive concepts are those about which we share a general understanding, but we may disagree about their application in particular cases. Justice, right or wrong, helping, harming, keeping promises, obligations arising from relationships, equality, liberty, democracy, and law are all interpretive. The truth of an interpretation is determined by its consistency with the two principles of dignity. The first principle of dignity is that the success of one's own life has objective importance, and, as a corollary, all lives are equally important. The second principle of dignity is that we each have personal responsibility for our own life; we must each make our own decisions and so lead authentic lives. Self-respect comes from taking our own life seriously and in that sense living well: we must strive to make our own life a successful performance by creating value in it. The two principles of dignity interact to guide ethics (how to live well) and morality (how to treat others), which in turn are mutually reinforcing: living well requires treating others well, and respect for others enhances self-respect.
That is an outline of the skeleton of Dworkin's conception of the unity of value. There have been times when, as a lawyer, I have wished that the people who write complicated statutes would reveal the whiteboard diagram which they devised to guide their drafting. So too with this book. It has to be worked at rather than skim-read. Notes have to be scribbled in margins and end pages filled with references. Yes, the first chapter serves as a travel guide to the journey ahead, but there are times when Part One (Chapters 2 to 5) slows down while Dworkin deals with anticipated challenges from academic philosophers, requiring detailed conceptual distinctions on issues that most of us, since we have bought the book, will be prepared to take on trust just for the sake of getting to his point. But it would be wrong to be discouraged by the initial labours, as once we have appreciated the book as a whole we can go back to the details. Some readers might think a glossary would have been useful, but the index is a well designed work-around. Having grumped about diagrams, I suppose I should let you look at mine, here.
For an indication of what you will find in Justice for Hedgehogs, here is Dworkin's essay from a recent issue of the New York Review of Books (10 February, 2011).
This wonderful book will delight anyone who wants a systematic approach to deciding what is right. It would be a dull person indeed who did not feel the resonance of Dworkin's conclusion:
"Without dignity our lives are only blinks of duration. But if we manage to lead a good life well, we create something more. We write a subscript to our mortality. We make our lives tiny diamonds in the cosmic sands."
posted by Don Mathias at
12:32 PM
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