The Rich Legacy of Ronald Dworkin: 1931-2013

We welcome this guest post from Dr. Tom Hickey a lecturer in the School of Law at NUI Galway.  In this guest post Dr. Hickey reflects on the work of Ronald Dworkin.  Dr. Hickey lectures in the areas of constitutional law, jurisprudence and administrative law at NUI Galway.

The passing last week of Ronald Dworkin, Professor of Law at New York University and Professor of Jurisprudence at University College London, will have struck a chord with many in the academic human rights community. With contributions such as Taking Rights Seriously (1977), Law’s Empire (1986) and Sovereign Virtue: The Theory and Practice of Equality (1996), Dworkin stands amongst the most influential legal philosophers of the past few centuries. The scope of his work is considerable, but his most enduring legacy is likely to be his theory of adjudication: his account of how judges decide “hard cases.” On this question Dworkin challenged his great 20th century rival H.L.A. Hart (and Legal Positivism generally) by insisting that there is a necessary connection between law and morality. This connection, Dworkin argued, is attributable to the fact that in engaging in the process of adjudication judges necessarily draw on moral considerations. They do so not because of some irresistable impulse on their parts to change the law so that it better fits with their own moral or political tastes but rather because drawing on evaluative considerations is an unavoidable part of any interpretive enterprise, whether it be interpreting a piece of literature or art, a particular social practice, or a set of legal provisions.

Dworkin was a master of the punchy phrase or analogy. He used the image of a right as a “trump card” that automatically defeats cards from other suits as a means of explaining his account of rights as special claims that defeat ordinary political claims based on utilitarian calculations.  Similarly in respect of his argument concerning “constructive interpretation” and how judges decide cases: he frequently used productions of great plays as an illustration.

And so how do we interpret social practices or texts? Imagine you are a music teacher in a secondary school tasked with putting on a version of West Side Story. You must interpret that musical. This is quite a task, given that it is based on a book written by an author, with music written by someone else, lyrics by another, and choreogrpahy by yet another!

You would probably begin by familiarising yourself with the text and the music. You could not reasonably claim that yours was a production of West Side Story if you had instructed your actors to act lines from The Sound of Music. As well as using the text, you will probably consider previous productions of West Side Story. In fact these previous productions will heavily influence your decisions – both consciously and otherwise – as you set about your task. In other words, in putting on the production you will have fidelity to the text and music as well as to previous interpretations. Continue reading “The Rich Legacy of Ronald Dworkin: 1931-2013”

The Rich Legacy of Ronald Dworkin: 1931-2013

An Infinite Reversibility: The Rights to the City, of Skin and of Truth

Sanex, a toiletries corporation, have a new advert. They tell us that ‘Your underarm skin has three fundamental rights: A right to effective twenty-four hour protection, to moisturization and to a natural Ph balance’. In this post I would like to briefly explore these rights, before talking a little more seriously about two newer rights that have a little more political effect. Let me pose two questions that this advert suggests: firstly, who/what is the subject of the rights and secondly, what are its effects, in base political terms. Obviously, Sanex are suggesting that across the world, human skin is being oppressed by those dastardly humans who wear(?) it…. The subject of these three fundamental rights appears to be one’s skin, and its protection occurs through Sanex’s ‘dermo-active-three complex’. The effect of this right, is clearly that other toiletry companies do not respect the fundamental rights of your skin. There is a fissure between the person and their skin and it is the skin that holds these rights. One can only imagine what rights other parts of your body might have, and how they might be ‘respected’. The conflict of my constitutive parts is going to have the courts busy for years I suspect – the skin on my face has the right to air and sunlight, but the hair that grows there is surely violating these right. My beard has the right to exist, but shaving clearly violates it… In fact the problem of excretion in general is going to be a minefield for rights-talk.

There is an important point here: rights are deeply linked to desire. Rights are (at least in one sense) a manner of authorising or (pro)claiming the authority of your desire. There is a complex interplay between recognition of the legitimacy of one’s (political) desires and identity.Sanex are thus tapping into this authorisation inherent in rights, and combining it with the pseudo-scientific jargon that has long been a hallmark of cosmetics campaigns. They are withdrawing the sense of rights and in the hollow shell of the term laying crass commercial interests. But what of rights in all this: We have long known that rights were infinitely reversible, that there is no pure liberatory or progressive essence at their heart. In fact, individual rights stem precisely from such a reversibility – human rights stem from the sovereign’s natural right to rule which morphs into the natural rights of the individual before and during the enlightenment. Rights themselves are reversible and have no necessary political position

Continue reading “An Infinite Reversibility: The Rights to the City, of Skin and of Truth”

An Infinite Reversibility: The Rights to the City, of Skin and of Truth