Easing the Passing

25 Feb

It would be remiss of us, in returning to active service (see previous post), not to note the death of the eminent Anglo-American* jurist Ronald Dworkin. See here for his obituary in The Guardian.

Dworkin is to be remembered for taking up the challenge of giving an account of why the Law deserves to be obeyed – and (in effect – they are close enough to the same thing, perhaps) thus justifying its enforcement. More than that, he sought to justify the system of common-law precedent, and in particular the way that Judges would give decisions that seemed in advance of public/parliamentary/both opinion at the time – a phenomenon we can see on both sides of the Atlantic, albeit more famously common in America eg Roe v Wade where the US Supreme Court discerned latent in their Constitution a Right to Privacy (via the ban on arbitrary official searches) and thence in effect a right to an abortion without state interference. In doing so he also showed a way to account for legal change in a common law system in a rather more detailed way than ‘law changes with society’ – indeed, that might seem (see above) to see Law as a leader of social change.

Whether this is a beneficial legacy may be another matter – Judges have not often noticeably needed much encouragement to see themselves as knowing better than everyone else – but it is certainly a very significant achievement in contemporary jurisprudence, and at least arguably gives a much fuller and more plausible account of common law judging than HLA Hart and the positivists did. For that his memory is to be saluted.

*Really American-Anglo – but the word doesn’t seem to exist.

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