Can American Courts Respect Religious Reasoning?

Abstract

In 1977, legal philosopher Ronald Dworkin published Taking Rights Seriously, and it quickly received wide notice. At the time recently appointed H.L.A. Hart's successor at Oxford, Dworkin combined jurisprudential analysis with pointed commentary on United States Supreme Court cases, the latter developed principally in essays in the New York Review of Books. Defining law through its aspiration to justice and defining justice in terms of rights, Dworkin argued that judges were entitled to use moral philosophy both to interpret legal rules through the principles they instantiate and to fill in gaps in the law by leveraging general legal concepts into more precise conceptions. Often paired with his contemporary John Rawls's Theory of Justice, Dworkin's theory that judges should rework the law when possible to insure “equal concern and respect” was seen to elaborate the practical meaning of Rawls's first principle of justice (equal rights to basic liberties) as well as to boost the activism of judges, whom he encouraged to model “Hercules.”