The Most Important Legal Philosopher of Our Time

by Cass R. Sunstein

Bloomberg
February 16, 2013

Ronald Dworkin, a professor at New York University and the University of Oxford who died this week, was one of the most important legal philosophers of the last 100 years. He may well head the list.

He made countless enduring contributions to philosophy and legal theory. Among his greatest is a distinctive answer to a longstanding question: Do judges find law, or do they make it? His answer is a huge improvement over the crude alternatives that dominate public debates.

Consider a question about which people fiercely disagree: Does the U.S. Constitution require states to recognize same-sex marriages? In answering that question, judges have to deal with many precedents. For example, the Supreme Court has ruled that states can’t criminalize sexual acts between people of the same sex. The court has also forbidden states from banning racial intermarriages. At the same time, the court allows states to forbid polygamous marriages.

In resolving the same-sex marriage dispute, how can judges deal with such precedents? Here Dworkin introduced an arresting metaphor. Suppose that you are a participant in writing a chain novel. Others have written earlier chapters. Now it’s your turn. How shall you proceed?

Dworkin’s answer is that you have to engage in an act of interpretation. You can’t disregard what has come before. If your predecessors have started to write a romance, you can’t suddenly turn it into a work of science fiction without doing violence to what they have done. You owe a duty of fidelity to their work.

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