As Orin noted, today comes the news that
Oxford NYU Professor Ronald Dworkin has passed away. I was a student in Dworkin’s jurisprudence class when he visited Harvard Law School, and remember fondly him debating my torts professor Charles Fried who questioned him from the student seats. I thought then that Dworkin clearly won those exchanges. I also remember the appearance in the back of the classroom one day of HLA Hart, who Dworkin had succeeded as the Professor of Jurisprudence at Oxford.
Dworkin did me a very good turn once. When I was deeply absorbed in Harvard’s extensive 9-hour criminal law trial practice program, I neglected my other courses. I showed up for one only to find I didn’t understand a word the professor was saying. After class, I made a bee line to the Registrar to drop the course, but being a third year student, I needed to find replacement credits. Dworkin agreed to sponsor an independent study for 1 credit hour (I don’t remember how I made up the other 2). I wrote a paper criticizing a chapter of his recently published book, Taking Rights Seriously, devoted to the proposition that there is “no general right to liberty.”
I met with him a couple times to discuss my paper, and the interchanges were amazing. Rather than respond to the criticism or argue, he got inside my argument to see what I needed to say in order to make it work. When he asked me whether I was willing to trade off property rights for an increase in liberty, and I declined, he replied: “Well then you’re not a libertarian, you’re a propertarian.” That challenge inspired a great deal of my early work on liberty that culminated in my book The Structure of Liberty: Justice and the Rule of Law (OUP 1998). (I am currently writing an Afterword for a new edition to be published by Oxford University Press). (I still think I am a libertarian.)
Some years later I watched him devastate Richard Posner at a conference held at the University of Chicago Law School. Posner was proposing his normative theory of wealth maximation, and Dworkin systematically dismembered the arguments in session after session.
Still later, I saw him engage with Mark Tushnet at an AALS conference on jurisprudence, I believe, in Philadelphia. Dworkin was describing his forthcoming book, Law’s Empire, which with
Richard John Hart Ely’s Democracy and Distrust, I consider to be one of the few masterpieces of constitutional theory in the Twentieth Century. (I think Jack Balkin’s Living Originalism is one of the very few books since then to get into the same league.) Dworkin was challenged from the floor by Mark Tushnet who informed everyone that, by mistake, Harvard University Press had sent him an advanced copy which he had read. After Tushnet asked his question and moved to sit down, Dworkin asked him to remain at the microphone so he could respond. Dworkin then launched into a long disquisition that Tushnet was compelled to follow closely, never knowing when a question would emerge from the flow of reasoning. My own sense was that Dworkin got the better of that exchange.
A master rhetorician, Dworkin was not without his faults and weaknesses, but today is not the day to dwell on these. Today, I choose to remember the man who did me a very good turn when I needed it badly, at a school where good turns from faculty were hard to come by, and something he did not need to do. I remember him as a debater extraordinaire who, in his prime, could simply take your breath away when in verbal combat. I remember him as a scintillating teacher who had a deep influence on me. Before I became an originalist in the late 90s, if you had asked me about my approach to constitutional interpretation, I would have described myself as a Dworkinian. Even when I was a very junior professor, he seemed to remember me when we met and was very gracious in his praise.
Ronald Dworkin, dead at 81. I will miss him.
PS: Apologies for any typos or errors in grammar. I had to write this quickly before boarding a plane at Dulles for the originalist works-in-progress conference at the University of San Diego.