A short, CRITICAL History of Philosophy (Chapter 37)

Who Was Ronald Dworkin And How Did He Influence American Law and Jurisprudence

By its nature, our legal framework – what is called common law – is not open to radical reconstruction. Arguably, no system should be. There are several reasons for this. The most obvious is that our system of law is based on legal precedent, or stare decisis. The literal meaning of that Latin phrase is “to stand by things decided.” In other words, judges are not supposed to invent new interpretations of existing legal doctrines or to overturn statutes without clear constitutional reasoning. To do otherwise would be anti-democratic since judges are not supposed to be legislators, and they are often unelected and not open to removal by the electorate. Moreover, the legal system operates with a long-established series of rules and procedures which have been devised to ensure fairness and equity: due process.

As well-recognized as these principles are, over the last two centuries a philosophy known as legal positivism arose. Most of its basic ideas are self-evident. Among these are that laws are human creations, that they are not moral judgments and that they can be understood through precedent, due process and legislative history.

All of these ideas have come under attack. The twin sources of the assault are what has become known as Critical Legal Studies and the writings of the late author Ronald Dworkin. Critical Legal Studies is a Marxist school of thought that argues that the claims of fairness in the legal system are fraudulent. Yet, in anchoring its beliefs in Marx’s ideas, it is citing a fraud to make its case of fraud. This would, of course, be a little like using Bernie Madoff as a witness in a brief arguing that securities laws are unjust. Most of those advocating for critical legal theory, however, are sufficiently blinkered that this has not occurred to them. Their essential argument is that law serves the interests of those who write it, and that it therefore needs to be remade from start to finish in the name of equity. How they can assure that they know what equity is or that it will continue to be democratic, intelligible or consistent is left unexplained.

Ronald Dworkin: Certain of his own brilliance.