This is the first in an occasional Zealous series exploring major legal philosophers, with the aim of demonstrating why their ideas should matter to anyone who currently practices law.
We begin with Ronald Dworkin (pictured), because his central insight reframes a question every constitutional lawyer encounters: how can unelected judges legitimately override the will of democratically elected legislatures?
Ronald Dworkin (1931–2013) was among the most influential legal philosophers of the twentieth century. After graduating summa cum laude from Harvard and studying at Oxford as a Rhodes Scholar, where his examination so impressed the faculty that H.L.A. Hart himself was summoned to read it, Dworkin clerked for the legendary Judge Learned Hand before joining Sullivan & Cromwell. He left practice for the academy in 1962, eventually succeeding Hart in Oxford’s Chair of Jurisprudence and later holding positions at NYU and University College London.
His major works include Taking Rights Seriously (1977), Law’s Empire (1986), Life’s Dominion (1993), and Freedom’s Law (1996). According to The Journal of Legal Studies, Dworkin is the second most-cited American legal scholar of the twentieth century.
Dworkin devoted much of his career to questions of constitutional interpretation. In Freedom's Law (1996), Dworkin took on one of constitutional theory's most persistent puzzles: the so-called 'counter-majoritarian difficulty'— and the standard objection to judicial review. The argument seems intuitive: democracy means majority rule, judges aren’t elected, therefore judicial review is anti-democratic.
Dworkin’s response wasn’t to defend judicial review as a necessary evil or a regrettable exception to democratic principles. Instead, he attacked the premise itself. Democracy, Dworkin argued, doesn’t equate to nothing more than majoritarianism, and anyone who thinks it does has confused a vote-counting mechanism for a principle. Far from being anti-democratic, judicial review is a necessary precondition for legitimating democracy and allowing it to flourish.
Dworkin proposed what he called the “partnership" or "constitutional" conception of democracy. On this view, democracy means collective self-governance by citizens who participate as free and equal partners. The question isn’t simply “what does the majority want?” but “are we treating every member of our political community with equal concern and respect?”
A system that allows temporary majorities to trample fundamental rights isn’t exercising democratic authority. It’s betraying the very ideal that makes democracy viable and valuable. When a court strikes down a law that violates fundamental rights (e.g., segregation or censorship), the court is not subverting democracy, it is restoring the conditions necessary for democracy to exist.
This reframing is profound. Rights aren’t exceptions to democracy that require special justification; rather, they’re conditions for democracy. Free speech, equal protection, and due process are not obstacles to majority will, but prerequisites for legitimate collective decision-making. A robust and revered, or at least respected, court system that protects these rights isn’t frustrating democracy. It’s fulfilling it.
Dworkin argued that constitutional litigation is itself a form of democratic participation, one that engages citizens in principled argument about fundamental values, rather than mere preference-counting.
So the next time someone invokes overturning “the will of the people” to criticize a judicial decision, ask yourself: which conception of democracy are they assuming? Are they treating democracy as mere majoritarianism, a headcount that settles all questions?
Dworkin's insight, of direct relevance to lawyers everywhere, especially given current events, is that democratic legitimacy requires robust institutions of judicial review that ensure every citizen is treated as an equal partner in our collective enterprise, with equal treatment and dignity before the law.
Next in this series: H.L.A. Hart and the question Dworkin spent his career trying to answer.
