Document Type

Article

Publication Date

1978

Abstract

A great many people have attempted to explain what is wrong with the views of Ronald Dworkin. So many, indeed, that one who read only the critics might wonder why views so widely rejected have received so much attention. One reason is that, whatever may be wrong in Dworkin's theories, there is a good deal that is right in them. But what is right is not always clear. Important passages in Dworkin can be distressingly obscure, or tantalizingly incomplete. This essay is a set of loosely connected observations on themes from Dworkin. While I shall add some criticisms of my own to the list of charges against Dworkin, my primary object is to defend and to amplify, clarifying here, filling in gaps there. I shall concentrate on what Dworkin has to say about the nature of rights, principles, and policies. I shall not address directly issues about the relation of law to morality. The omission just indicated makes it clear that I am not engaged in a comprehensive review of Dworkin's position. It is in the nature of this essay to have no unifying theme. Various parts of the essay do, however, converge in supporting the following observation: Individuals, and relations between individuals, are squarely at the center of Dworkin's picture of the common law. For the most part (not invariably) Dworkin seems to operate with a rather old-fashioned idea of the common law as a system based on fundamental moral principles, understandable by all, regulating intercourse between individuals and referring only incidentally to general social consequences. The centrality of the individual is revealed both in judgments about what are appropriate occasions for judicial intervention and in judgments about what reasons for decision it is appropriate for judges to consider. The suggestion that Dworkin tends to focus on individuals should not surprise anyone who has read his essays. What may be surprising is the number of Dworkin's claims that turn out on analysis to reflect this tendency.


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