Posner’s Charges: What I Actually Said
Ronald·Dworkin
【全文】
In a recent issue of The New York Review of Books,[i][1] I reviewed Judge Richard Posner’s book, Problematics of Moral and Legal Reasoning.[ii][2] That book (and his Holmes Lectures of the same name on which much of the book is based[iii][3]) misreport my own opinions on a surprising number of important subjects, but that fact is of no general interest, and I did not think it appropriate to use my review to attempt any corrections. It does seem appropriate, however, to use the Internet for that purpose, since that medium can provide information to the few readers who might wish it without occupying valuable magazine or journal space.
Many writers believe that they are sometimes misrepresented, and I have myself been accused of misrepresenting others.[iv][4] Nevertheless the number and character of Posner’s inaccuracies merits notice, particularly since in many cases the opinions he reports are the exact opposite of my own. Some of his descriptions are taken from other writers, though he embraces them as his own. That is a dangerous practice: it is all too easy for an author to find other critics of a view he wishes to criticize, including some who have misrepresented that view. A good search engine is no substitute for a careful reading of what one criticizes, and for one’s own arguments.
1. “Dworkin claims that his views on the merits of the cases he discusses are generated not by his personal ideology, which is left-liberal, but by impartial reflection on the principles that are seen to be part of law once positivism is rejected.”[v][5]
I have steadily insisted on the opposite. In Law’s Empire I argued that legal interpretation inevitably brings to bear the interpreter’s own political convictions. In the introduction to Freedom’s Law (a book Posner refers to repeatedly) I said, “Of course my constitutional opinions are influenced by my own convictions of political morality…I not only concede but emphasize that constitutional opinion is sensitive to political conviction… Of course the moral reading encourages lawyers and judges to read an abstract constitution in the light of what they take to be justice. How else could they answer the moral questions that abstract constitution asks them? …This book does indeed offer a liberal view of the American Constitution.”
Posner uses my supposed “claim” to support his further statement that my views are “in the line of descent from Herbert Wechsler’s influential article on ‘neutral principles’”[vi][6] of 1959, and therefore that “In nearly every respect, Dworkin’s ‘moral reading’ of the Constitution was anticipated by the scholars of the later 1950s and early 1960s.”[vii][7] I do not wish to claim originality for my work: that is the most foolish claim an author can make. But I have never accepted the idea of neutral principles, and Posner’s choice of the views that supposedly anticipated mine “in nearly every respect” is unfortunate.
