Dworkin’s Death Deprives Scalia of His Moral Foil | Noah Feldman - Bloomerg.com

Ronald Dworkin, who has died at age 81, was the leading liberal constitutional theorist of his era. But that is not why his ideas are so important nor is it why history will remember him.

Instead, Dworkin’s essential contribution applies equally to American liberal and conservative legal thought: Constitutional decision-making rests on a bedrock of the judges’ political morality -- and so do the rights we enjoy.

If this thought seems obvious today, Dworkin had much to do with making it so. Until he started writing in the 1960s, the dominant trend in legal theory in the English-speaking world was to the contrary. Ever since Jeremy Bentham had declared that natural law was “nonsense on stilts,” the leading British and American legal philosophers had insisted on a strict distinction between law and morals.

The apotheosis of this view could be found in the writings of Justice Oliver Wendell Holmes, who believed that law had nothing to do with right and wrong; it was just a prediction of what courts would do. In fact, Holmes said, if you wanted to know the law, you should to take the perspective of a bad man who hoped to avoid punishment -- whatever he could get away with was the law. This view fit hand in glove with Holmes’ nihilistic judicial restraint. He thought that the courts shouldn’t invoke morals to stop legislatures from adopting laws, whether the laws embodied socialism or eugenics.

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