Bench Memos

Ronald Dworkin

He passed away last week and there has been much discussion about his legacy. A few thoughts: He wanted a law of high “principle,” but he rejected the notion that there are moral truths that could furnish the ground and substance of those principles. He offered, as the ground of jurisprudence, “a nation’s political traditions and culture.” But of course, slavery was quite in accord with the “political traditions and culture” of this country up to the time when it was abolished. And the deeper irony came with all of those new, enlightened “rights” that he would have judges discover. He would invoke all of the claims associated with natural law and moral truths when it came to overriding the judgments of legislators elected by voters. And yet, if the test of the rightness or justice of things was the matter of gauging just who is more closely in accord with the local culture and traditions, elected politicians figured to be far more precise barometers than unelected judges drawn from Harvard and Yale. We had here a shell game, practiced by academic commentators, who were never somehow “called” on the incoherence of what they were doing. And among that group, he was a star, as a practitioner of the art and as a telling example.

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College, the founder of the James Wilson Institute on Natural Rights & the American Founding, and the architect of the Born-Alive Infants Protection Acts.

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