#ronald dworkin

[casualchancers]

Man, Ronald dworkin would have hated death of the author…

[that-lazy-teenager]

The Indian Constitution recognizes religion but does not define it. So the question as to what religion is, remains. We are still years away from even attempting to consider ideas like Ronald Dworkin's 'Religion without God'.

[principleofplenitude]

In the philosophical literature on dementia, scholars speak of a contest between the “then-self” before the disease and the “now-self” after it: between how a person with dementia seems to want to live and how she previously said she would have wanted to live. Many academic papers on the question begin in the same way: by telling the story of a woman named Margo, who was the subject of a 1991 article in The Journal of the American Medical Association (JAMA), by a physician named Andrew Firlik. Margo, according to the article, was 55 and had early-onset Alzheimer’s disease and couldn’t recognize anyone around her, but she was very happy. She spent her days painting and listening to music. She read mystery novels too: often the same book day after day, the mystery remaining mysterious because she would forget it. “Despite her illness, or maybe somehow because of it,” Firlik wrote, “Margo is undeniably one of the happiest people I have known.” A couple of years after the JAMA article was published, the philosopher and constitutional jurist Ronald Dworkin revisited the happy Margo in his 1993 book, “Life’s Dominion.” Imagine, he asked readers, that years ago, when she was fully competent, Margo had written a formal document explaining that if she ever developed Alzheimer’s disease, she should not be given lifesaving medical treatment. “Or even that in that event she should be killed as soon and as painlessly as possible?” What was an ethical doctor to do? Should he kill now-Margo, even though she was happy, because then-Margo would have wanted to be dead? In Dworkin’s view, it was then-Margo whose wishes deserved moral weight. In his book, he made a distinction between two kinds of interests: “experiential” and “critical.” An experiential interest was reactive and bodily: the pleasure of eating ice cream, say. A critical interest was much more cerebral; it reflected the character of a person and how she wanted her life to be lived. In the case of advanced Alzheimer’s disease, Dworkin argued, there is a danger that critical interests will be usurped by experiential ones. Still, it was the critical interests, previously stated, that deserved to be satisfied, because it was those interests that gave human life its meaning and its dignity — and even made it sacred, in a kind of secular way. A person was respected if she was helped to live out her chosen course, not if her life trajectory was allowed to be derailed by the amnesiac whims of her diseased self. Some philosophers have devoted themselves to reconsidering Margo. They accuse Dworkin of holding too limited a view of meaning. Couldn’t a life of tiny pleasures be meaningful, even if it wasn’t the product of some sophisticated life plan? Critics have asked why we should privilege the decisions of a person who effectively no longer exists over the expressed choices of the person who is sitting before us, here and now. On a practical level, what authority could the then-self possibly exert over the now-self? And while Dworkin’s theory might apply to those in the advanced stages of the disease, it speaks less to a majority of patients in the mild and moderate phases. The in-between Margos. Dworkin’s theory also distinguishes between selves in a way that strikes some critics as misguided. A person is not like Plutarch’s Ship of Theseus: replaced, plank by plank, over the course of her voyages, leaving those aboard to wonder if she is still the old ship or instead a new one — and, if she is a new one, when exactly she ceased to be the other. A person always is and is not who she used to be. Still, many adult children cling to an image of a parent’s then-self and work relentlessly to protect it. Adult children “tend to be confident leaning on the side of a Dworkin-type view,” says Matilda Carter, a postdoctoral fellow in philosophy at the University of Glasgow and a former dementia caregiver. They don’t want a parent’s confused, 11th-hour choices to “tarnish the legacy of her life beforehand.”

“A Story of Dementia” from New York Times

[weil-weil-lautre]

Paradoxes of Equality - Ronald Dworkin (1982)

[weil-weil-lautre]

It is, after all, the Supreme Court that decides whether capital punishment shall be permitted, or abortions allowed, or pornography protected from censorship, or schoolchildren bussed long distances to secure racial integration in schools. No institution that decides questions like these should hide behind the censorship of courtesy.

Ronald Dworkin, “Trashing the Supreme Court”

[weil-weil-lautre]

We cannot accuse these justices of ignoring the plain meaning of the Constitution. The popular assumption that justices can decide constitutional cases by just consulting the text of that document and the intentions of its eighteenth- and nineteenth-century authors, without relying on their own sense of justice, is simplistic and wrong. Many of the most important constitutional clauses—the First Amendment’s promise of “the freedom of speech,” for instance, its guarantee of “free exercise” of religion, and its prohibition of any religious “establishment”—are drafted in abstract language; justices must interpret those clauses by trying to find principles of political morality that explain and justify the text and the past history of its application. They will inevitably disagree about which principles best satisfy that test, and they will inevitably be influenced, in making that judgment, by their own sense of what a good constitution would provide. But that does not mean that the justices are free to interpret the abstract clauses of the Constitution to match their own political convictions, whatever these are. It is essential to the rule of law that they accept the constraints as well as the responsibilities of the jurisprudence of principle. They must rely only on principles that they honestly think provide a persuasive justification for our actual constitutional traditions. They must set out the principles on which they rely in their opinions transparently; and they must apply those principles consistently across all the cases that come before them. They must not invent arbitrary exceptions when these principles yield results they find uncongenial. Unless justices accept those constraints, they are only unelected politicians.

Ronald Dworkin, “The Supreme Court’s Embarrassingly Bad Decisions”

[weil-weil-lautre]

The revolution that many commentators predicted when President Bush appointed two ultra-right-wing Supreme Court justices is proceeding with breathtaking impatience, and it is a revolution Jacobin in its disdain for tradition and precedent. Bush’s choices, Chief Justice John Roberts and Justice Samuel Alito, have joined the two previously most right-wing justices, Antonin Scalia and Clarence Thomas, in an unbreakable phalanx bent on remaking constitutional law by overruling, most often by stealth, the central constitutional doctrines that generations of past justices, conservative as well as liberal, had constructed. These doctrines aimed at reducing racial isolation and division, recapturing democracy from big money, establishing reasonable dimensions for freedom of conscience and speech, protecting a woman’s right to abortion while recognizing social concerns about how that right is exercised, and establishing a criminal process that is fair as well as effective. The rush of 5–4 decisions at the end of the Court’s term undermined the principled base of much of this carefully established doctrine. As Justice Stephen Breyer declared, in a rare lament from the bench, “It is not often in the law that so few have so quickly changed so much.” It would be a mistake to suppose that this right-wing phalanx is guided in its zeal by some very conservative judicial or political ideology of principle. It seems guided by no judicial or political principle at all, but only by partisan, cultural, and perhaps religious allegiance. It urges judicial restraint and deference to legislatures when these bodies pass measures that political conservatives favor, like bans on particular medical techniques in abortion. But the right-wing coalition abandons restraint when it strikes down legislation that conservatives oppose, like regulations on political advertising and modest school district programs to further racial integration in public education. It claims to celebrate free speech when it declares that Congress cannot prevent rich corporations and unions from evading restrictions on political contributions. But it subordinates free speech to other policies when it holds that schools can punish students for displaying ambiguous but not disruptive slogans at school events. Lawyers have long been fond of saying, quoting Mr. Dooley, that the Supreme Court follows the election returns. These four justices seem to follow Fox News instead. They need a fifth vote to win the day in particular cases, and they most often persuade Justice Anthony Kennedy to join them. Kennedy has taken Sandra Day O’Connor’s place as the swing vote on the Court. Twenty-four cases—a third of the Court’s decisions—were decided by 5–4 votes last term, nineteen of them on a strict ideological division. Kennedy voted on the winning side in all twenty-four of them. He joined with the right-wing justices in thirteen of the ideological cases; he voted against them and with the four more liberal justices—John Paul Stevens, David Souter, Ruth Ginsburg, and Breyer—in the remaining six cases, including four death penalty appeals from Texas. He showed deplorable partisanship when he voted with the majority in the Court’s intellectually disreputable 2000 decision to elect Bush president.2 He wrote a poor and insensitive majority opinion this year in the Court’s so-called partial-birth abortion case. (I discussed his opinion in these pages earlier this year.)3

Ronald Dworkin, “The Supreme Court Phalanx”

[hannahmontanalinux]

Most political philosophers--and I think most people--take the intermediate view that fairness and justice are to some degree independent of one another, so that fair institutions sometimes produce unjust decisions and unfair institutions just ones.

Ronald Dworkin Laws Empire (p. 177)