Justice for Hedgehogs

"He totally rejects it. He’s at the opposite extreme. They are similar in the skill with which they deploy language and the tightness of their techniques of argument. But I think that this book, which was Dworkins’ last, actually published in 2011, not long before his death in 2013, is a modern classic. The fact that I completely disagree with its central thesis does not stop me from saying so. “ The Eumenides is about the trial of Orestes for the murder of his mother. Athena, the goddess of wisdom, puts an end to the cycle of lawlessness and violence and anarchy by founding a court to decide whether Orestes has a defence.” Dworkin was an American legal philosopher, although much of his career was passed in British universities, particularly London and Oxford. He was famous for pungent, opinionated and elegant essays contributing to public debates about rights. But you’re right that he rejected the view of the legal positivists that rights were the creation of human societies. He believed that there were basic rights, including what we would call human rights, which existed in the abstract. He asked himself, “can you have a moral principle, which is true regardless of whether anyone believes in it. Can you have a moral principle which nobody is aware of and nobody believes and yet is a true moral principle?” I find that conceptually extraordinarily difficult because moral principles are essentially the creation of the human intellect. They are responses to perceived social needs. The idea that they can exist apart from society strikes me as bizarre, but Dworkin’s book is very skilful in the way in which he builds the argument up. I think that he is one of the great modern legal thinkers. The book is not about animal rights! The title is derived from an aphorism attributed to the archaic Greek poet, Archilochus, that the fox knows many things but the hedgehog knows one big thing. So what he’s talking about is the difference between thinkers who bring insights into a single great idea (hedgehogs) and thinkers who just skate over the whole surface of human knowledge (foxes). “Hobbes was saying that law is the instrument of government and government’s purpose is to defend us against anarchy. He was an apologist for absolute government.” Dworkin characterized himself as a hedgehog, because he basically thought that all thinking on the subject of law and rights was interconnected, so it was basically one great big subject. When you read his book you find that it wanders disparately over a large number of different fields to make his point. My own view is that Dworkin was not really the hedgehog he claimed to be. He was actually a fox in hedgehog’s clothing. He doesn’t have one. That’s the great weakness of his argument. You need a source of legitimacy. If the legitimacy of a moral rule is not conferred by collective social choice, what is it that makes it legitimate? As you point out, in a religious age the answer would have been straightforward, that moral laws came from God. The same could be said with totalitarian dictatorships. Moral principles come from the ideology of their ruling groups. But if you’ve got a democracy, as Dworkin is assuming, it becomes extremely difficult to identify a source of legitimacy other than the choice, directly or indirectly made, of the people. I am a legal positivist. I wouldn’t describe myself as a legal philosopher, but most legal philosophers these days are positivists. And I think that they’re right. The great positivist who disagreed constantly with Dworkin was Dworkin’s teacher, Herbert Hart, whose book, The Concept of Law , is probably the finest modern statement of the positivist position."