Earlier this month, world-renowned legal philosopher and NYU Law professor Ronald Dworkin passed away at 81. Besides being the undisputed top scholar in his field, Dworkin was also a public intellectual, and it was not uncommon to frequently encounter his writings in the op-ed sections of The New York Times or in the New York Review of Books. Although the study of law can be an esoteric endeavor, Dworkin wrote very clearly and intelligently, giving basic and meaningful insights to law that any layperson can understand.

I reached out to Professor Thomas Nagel, who knew and worked closely with Dworkin, to hear his opinion on his colleague’s contributions to the legal field.

Nagel said “Ronald Dworkin was not only the leading legal philosopher of our time, but one of the most creative and original contemporary moral and political philosophers, as well as a major figure in the nation’s public intellectual life. He helped make NYU an internationally recognized center for the study of moral, political and legal theory — both in the Law School and in the Philosophy Department.”

Indeed, Dworkin has been an intellectual giant since the latter half of the 20th century. In the last 50 years, there has been an ongoing debate among three heavyweights: H.L.A. Hart, Lord Devlin and Ronald Dworkin himself. I’d like to expound on the debate since it helps summarize contemporary competing legal principles and provide insight into Dworkin’s ideas.

The debate initially occurred between Hart and Devlin over the issue of legalizing homosexual acts and prostitution, and broached the broader issue of the relationship between law and morality. Hart argued that one must separate law and morality — law is ontologically different and is a distinctive social fact.  According to this view, laws are to be understood as social rules, valid because a legitimate authority enacts them. Among other things, Hart did not want to entangle public morality with law because he did not believe that conventional morality should be a justification for limiting individual liberty. So, instead of tethering positive law to morality as the foundation for its justification — which was what had occurred through a long intellectual tradition that is known as the Natural Law Thesis — Hart turned to John Stuart Mill’s famous harm principle. Under this principle, an action can be made illegal if and only if it produces harm to individuals.  Since acts of homosexuality and prostitution are private and do not really harm anyone, they ought not to be proscribed by law.

Devlin countered Hart, arguing that law — particularly criminal law — can further the moral sensibilities of society. Devlin argued that criminalizing activities is also premised on the notion that these are things society does not want to condone or endorse. Therefore, there exists a stable notion of public morality, and law exists to further these notions. Devlin said, “There is disintegration when no common morality is observed, and history shows that the loosening of moral bonds is often the first stage of disintegration, so that society is justified in taking the same steps to preserve its moral code as it does to preserve its government.”  Thus, according to this view, engaging in certain activities, such as prostitution — even in private — can constitute an attack on societal norms and can be justifiably proscribed by laws.

Dworkin sought to move beyond both of these views, arguing that none of them gave us an adequate conception of law. In order for law to be truly justified, we necessarily need to invoke certain moral notions. It must be noted that this is quite different from Devlin’s point that laws are themselves moral rules. Dworkin does not come up with substantive moral concepts but points to broad notions like law as integrity and law as being committed to moral concepts such as equality and liberty. As such, he does not go so far as to support Devlin’s idea of law as a mere codification of societal morality.

Dworkin also talked about scenarios in which judges are faced with particularly hard cases in which there is an incompleteness of law — insufficiency regarding law as an autonomous positivist enterprise. Such forks in the road require a special type of judge — a herculean judge — who can reach beyond the law to certain background moral conceptions, expanding our concepts of equality, liberty and so on.

A common objection to Dworkin’s theories is that he advocates a normative approach to law and even a type of judicial activism. Critics contend that judges should try to understand law as it is rather than interpreting it through the Dworkian lens. Of course Dworkin would likely reject these accusations, arguing that he is actually presenting a descriptive approach in analyzing law and adjudication — since the idea that morality and law intersect is a descriptive analysis and not merely a normative position about how law ought to operate. As for an explanation of his remarks on adjudication, he probably doesn’t advocate that every judge must have this herculean quality. This would obviously create instability — rather, such discretion is only reserved for a very few number of judges — those who may deal with cases where there is sufficient ambiguity and necessity to reach beyond precedent and settled legal principles to moral conceptions outside of law itself.

By denying the idea that law and morality are separate entities, some say Dworkin places himself in the camp of natural law theorists. Natural law comes with much negative baggage, such as claims about its sematic instability: how do we know it, where does it come from, etc. And Dworkin is not a natural law theorist in the traditional sense.  But we can think of him as reviving a tradition of thinking about the relationship of law and morality, which positivists like Hart believed they had moved beyond.

At the risk of being repetitive, I must echo the sentiments expressed by Nagel and reaffirm Dworkin’s intellectual breadth in argumentation and elegance in writing style.  Few can match Dworkin’s intellectual wit and flair, qualities that are rarely seen in public intellectuals today. In fact, the very notion of a public intellectual has been gradually waning in the United States. Increasingly we have begun to substitute successful television journalists to fill these roles. This is an unfortunate development in the United States, and Dworkin was one of the very few who has been carrying on an important tradition. He will be deeply missed by the local community at NYU and by the global community of those interested in legal scholarship and thoughtful discourse, who appreciated him immensely.

Edward Radzivilovskiy is deputy opinion editor. Email him at [email protected]