In 2013, The New York Review of Books celebrates its fiftieth anniversary. During the course of the year we will reprint excerpts from some other notable pieces published in the Review over the last five decades. For news and features about the fiftieth anniversary, visit nybooks.test/50.
Ronald Dworkin, who died on February 14 at the age of eighty-one, published more than one hundred articles, reviews, and letters on legal and philosophical issues in The New York Review between 1968 and 2012. In these pages he took up some of the most important controversies in American public life, including resistance to the draft during the Vietnam War, affirmative action, abortion, assisted suicide, health care, civil liberties and the war on terror, and what he called the “embarrassingly bad decisions” of the Supreme Court’s “right-wing phalanx.” Throughout his career he worked to elaborate what he called “the moral reading of the Constitution”: the idea that “we all—judges, lawyers, citizens—interpret and apply [its] abstract clauses on the understanding that they invoke moral principles about political decency and justice.”
The articles by Ronald Dworkin from which the following excerpts are drawn can be read in full at nybooks.test.
On Not Prosecuting Civil Disobedience
How should the government deal with those who disobey the draft laws out of conscience? Many people think the answer is obvious: the government must prosecute the dissenters, and if they are convicted it must punish them. Some people reach this conclusion easily, because they hold the mindless view that conscientious disobedience is the same as lawlessness. They think that the dissenters are anarchists who must be punished before their corruption spreads. Many lawyers and intellectuals come to the same conclusion, however, on what looks like a more sophisticated argument. They recognize that disobedience to law may be morally justified, but they insist that it cannot be legally justified, and they think that it follows from this truism that the law must be enforced…. But the argument that, because the government believes a man has committed a crime, it must prosecute him is much weaker than it seems. Society “cannot endure” if it tolerates all disobedience; it does not follow, however, nor is there evidence, that it will collapse if it tolerates some.
—June 6, 1968
Taking Rights Seriously
The bulk of the law—that part which defines and implements social, economic, and foreign policy—cannot be neutral. It must state, in its greatest part, the majority’s view of the common good. The institution of rights is therefore crucial, because it represents the majority’s promise to the minorities that their dignity and equality will be respected. When the divisions among the groups are most violent, then this gesture, if law is to work, must be most sincere.
The institution requires an act of faith on the part of the minorities, because the scope of their rights will be controversial whenever they are important, and because the officers of the majority will act on their own notions of what these rights really are. Of course these officials will disagree with many of the claims that a minority makes. That makes it all the more important that they take their decisions gravely. They must show that they understand what rights are, and they must not cheat on the full implications of the doctrine. The government will not reestablish respect for law without giving the law some claim to respect. It cannot do that if it neglects the one feature that distinguishes law from ordered brutality. If the government does not take rights seriously, then it does not take law seriously either.
—December 17, 1970
Is Affirmative Action Doomed?
Colleges, universities, and professional schools use race-sensitive standards not in response to any central government mandate but through individual decisions by individual schools. They act, not to fix how many members of which races will occupy what roles in the overall economy and polity, which…
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