The Modern‐Day Cicero: An Alternative Interpretation of the Work of Ronald Dworkin

• Published date: 01 December 2021
• Author: Arthur Dyevre,Wessel Wijtvliet
• Date: 01 December 2021
• DOI: http://doi.org/10.1111/raju.12329

© 2022 University of Bologna and John Wiley & Sons Ltd.

Ratio Juris. Vol. 34 No. 4 December 2021 (356–385)

The Modern- Day Cicero:

An Alternative Interpretation

of the Work of Ronald Dworkin

ARTHUR DYEVRE and WESSEL WIJTVLIET

Abstract. Ronald Dworkin is one of the most frequently cited legal philosophers. His work,

notably his attack on H. L. A. Hart’s positivist theory of law, has received considerable atten-

tion, earning him praise as well as trenchant criticism. Instead of discussing the analytical va-

lidity of Dworkin’s claims, though, we propose an alternative reading of his jurisprudential

writings that emphasises their rhetorical nature. After delineating the rhetorical context of his

work, we provide several illustrations of his use of rhetorical strategies and, with the help of

sentiment- analysis techniques, emotional language. While resorting to classical rhetorical tac-

tics, Dworkin’s rhetoric, we argue, appealed to the emotional power of rights talk at a time

when the notion of rights enjoyed greater resonance with his audience.

1. Introduction

Ronald Dworkin is one of the most frequently cited legal scholars (F. R. Shapiro 2000,

424). He was a key figure in what some consider the most significant theoretical de-

bate in twentieth- century jurisprudence— his controversy with H. L. A. Hart on the

nature of law (Leiter 2003, 18). His work has been translated into multiple languages,

including Chinese and Russian. A vast secondary literature dedicated to his life and

work testifies to his enormous influence (Burley 2004; Cohen 1984; Gaffney 1996;

Guest 2013; Hershovitz 2006; Hunt 1992; Ripstein 2007b). His jurisprudential theses

have been received enthusiastically by some (Letsas 2007) but also severely criticized

by others (Scruton 2015). Yet even his fiercest critics consider him “one of the most

influential legal academics of the last half century” (Landes and Posner 1995, 826).

In this essay, we do not seek to articulate an umpteenth critique of Ronald

Dworkin’s philosophy of law. Whether it is the nature of principles or the single right

answer thesis, Dworkin’s claims have been carefully dissected and evaluated by nu-

merous authors. We do not think that we can contribute something truly novel and

original to this aspect of Dworkin’s work.1

Instead, we offer an alternative reading of his jurisprudential work which stresses

its rhetorical nature. We propose reading Dworkin’s work as exemplifying how the

1 Whereas Scott Shapiro argues that “reports of the demise of the Hart- Dworkin debate are

greatly exaggerated” (S. J. Shapiro 2007, 50), others perceive a growing sense of fatigue (see

Smith 2009).

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Ratio Juris, Vol. 34, No. 4 © 2022 University of Bologna and John Wiley & Sons Ltd.

The Modern- Day Cicero

best lawyers use eloquence to try and achieve persuasion. We read Dworkin as a sort

of modern- day Cicero. Not unlike Dworkin, Cicero was a reputed lawyer as well as

a successful academic author. His writings and speeches represented the pinnacle of

Latin classical eloquence. In similar fashion, Dworkin’s prose can be viewed as the

highest expression of modern Anglophone legal rhetoric. Even though some of what

we say about Dworkin’s work is congruent with the positions of his critics, we do

not want to emphasise this aspect of our analysis. Rather, what we want to stress is

that, irrespective of one’s position regarding the philosophical merits of Dworkin’s

work, studying it as a rhetorical object rewards fresh insights. We believe that how

Dworkin uses language to attack his opponents and disarm his critics tells us some-

thing important about how lawyers use language. It is important because persuasion

and rhetoric are often more central to legal discourse and legal practice than logical

validity.

For the same reason, we believe that many lawyers— particularly those with less

interest in abstract philosophical debates than in how law works in practice— will

find our rhetorical interpretation of Dworkin’s work fruitful, and possibly more so

than analytic perspectives that directly engage the validity of Dworkin’s claims.

To say that a discourse or a set of writings is rhetoric may seem, in some sense, triv-

ial. For, if we define rhetoric as the use of language to elicit social cooperation, there

is a sense in which we are all— albeit usually with a small audience— rhetoricians.

Nearly any piece of writing, academic or not, can be analysed as an exercise in rhet-

oric. When we speak or write it is very common for us to have persuasion in mind.

Bringing around our audience to our beliefs, actions, or desires is an important part

of what we seek to achieve. This is true of the lawyer arguing a case in the courtroom

as it is of the politician canvassing voters or the mathematician writing the proof of

a theorem.

Yet, although persuasion is indubitably part of all these discursive endeavours,

there are substantial differences as to how persuasion is and can be achieved in these

fields. In mathematics and the hard sciences, the set of acceptable arguments is gen-

erally well defined. A mathematical proof cannot but be a formal proof. This pre-

cludes any appeal to emotional language. Nor can the proof- writer hope to get away

with a bon mot. A formal proof is written for a highly specialized audience of experts

trained to spot logical fallacies. So while a mathematical proof is written to persuade,

the only way it can hope to achieve persuasion is through formal rigour.

Fields like politics and law are fundamentally different. There the repertoire of

acceptable arguments is not only much broader but also more loosely defined.

Legal and political audiences are not trained to detect formal and informal falla-

cies. They are often distracted, busy, and prone to cognitive biases. In fact, judges

and voters are more likely to take issue with the use of formal arguments than

with the use of irony, flattery, or emotional language.2 Hence, in the courtroom as

2 The use of formal, mathematical language in the courtroom often amounts to rhetorical sui-

cide. The same goes for political debates and legal doctrinal scholarship. US Supreme Court

justices dismissed mathematical formulas designed to measure the magnitude of gerrymander-

ing as “social gobbledygook,” sparking a debate on the judges’ allergy to numbers (see Roeder

2017). Doctrinal scholarship seeks to engage legal practice and in doing so to influence audi-

ences and, in some instances, to bring about social change. To that end, rhetoric is often more

effective than complicated mathematical proof (see Goldsmith and Vermeule 2002, 156).