Prejudices & Principles
Taking Rights Seriously.
by Ronald Dworkin.
Harvard University Press. 320 pp. $12.00.
In recent years, appeals to rights on the part of individuals and groups have reached tidal proportions; Daniel Bell has referred to the swell of such claims as a “revolution.” Not all these appeals are-political; the rights “revolution” has also penetrated places like the family and the classroom, where once the whole issue of rights would not have been thought to belong. For example, in Lawrence Kohlberg’s influential program of cognitive moral development, which has many adherents among college and school teachers, maturity is viewed as the capacity to focus on moral problems exclusively in reference to the rights of parties involved in disputes. There are books about the rights of children “against” their parents, the rights of interest groups, and even the rights of animals. In much of this there is a tendency to reduce very complex matters to single-factor explanations.
Ronald Dworkin, in Taking Rights Seriously, offers a justification for this trend as it applies to law and politics. In a connected series of articles he argues that individuals have rights which exist prior to any “explicit legislation”; that the most fundamental of these rights is the right to equality; and that even though no “mechanical procedure” exists for demonstrating what these rights are, claims for them are plausible and are to be taken seriously.
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In making a case for these propositions, Dworkin offers a sustained critique of the doctrine of judicial restraint associated with Justices Holmes, Brandeis, and Frankfurter and with the thought of Alexander M. Bickel. This doctrine, according to Dworkin, holds that political institutions other than courts should decide the strength and weight of rights. This, he says, is wrong, since rights are often opposed to what the majority wants; since it is “inconsistent and unjust” to have the majority decide its own case; and since political processes have shown themselves to be an ineffective check on violations of peoples’ rights, especially those of minorities. Our constitutional system, Dworkin maintains, rests on the premise that men have rights against the state; this, he says, is the position properly taken by the Warren Court.
To illustrate where he differs from those who call for judicial restraint and place their faith in the political process, Dworkin cites the “free-speech” issue that arose in the testing of the anti-riot law in the trial of the Chicago Seven. Whereas, he asserts, someone who believes that a balance should be struck between personal rights and the general good would defend the anti-riot law by saying that it leaves an individual free to express his opinions in a non-provocative way, this answer “misses the point.”
A man cannot express himself freely when he cannot match his rhetoric to his outrage, or when he must trim his sails to protect values he counts as nothing next to those he is trying to vindicate. It is true that some political dissenters speak in ways that shock the majority, but it is arrogant for the majority to suppose that the orthodox methods of expression are the proper ways to speak, for this is a denial of equal concern and respect.
For Dworkin, this case is telling evidence that the majority is often hostile to the rights of minorities, and that the “rights thesis” is needed to defend them.
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According to Dworkin, the reason many intelligent people do not understand the “rights thesis” is that they do not appreciate a necessary fusion of constitutional law and moral theory which “incredibly, has yet to take place.” In a chapter entitled “Justice and Rights,” he refers to John Rawls’s articulation, in A Theory of Justice, of the idea of the “original position.” This idea “imagines a group of men and women who come together to form a social contract.” If these men and women are rational and are acting only in their own self-interest, they will choose two principles of justice to guide themselves by, the first of which is “that every person must have the largest political liberty compatible with the like liberty for all,” and the second of which is “that inequalities in power, wealth, income, and other resources must not exist except insofar as they work to the absolute benefit of the worst-off members of society.” The conditions embodied in the “original position” are, to Dworkin, the fundamental principles governing our moral powers and our sense of justice. Constitutions and their amendments are “derivative” of these; “such rights as men do have” cannot be affected by the mere passing of a law.
Dworkin believes his view has important implications for civil disobedience. He says that just because something has been made or confirmed a law is not decisive for action; in fact, he argues that in the United States, any law which a significant number of people are tempted to disobey on moral grounds will be for that very reason a doubtful law, if not clearly invalid. Governments, moreover, have “special responsibilities” to those who act on a reasonable judgment of the invalidity of laws. Not, however, that every dissenter should be so protected: the moral doubts of the segregationist who stands in the schoolhouse door do not have the same standing as the doubts of the Chicago Seven, for the segregationist violates rights which have been “confirmed by law.” The chapter on civil disobedience ends by underlining the responsibility of the government to these who disobey the draft laws out of conscience; Dworkin says we may have to change our laws to accommodate these people.
Dworkin also takes up the implications of the “rights thesis” for reverse discrimination. A social or educational policy is justified, Dworkin says, if it “respects the right of all members of the community to be treated as equals but not otherwise.” This, it might seem, would put Dworkin against preferential programs based on race alone—but not so. The aim of a preferential admissions program, he says, is to “decrease the difference in wealth and power that now exists between different racial groups, and so make the community more equal overall”; such a program is therefore in line with the principle of the right to equal treatment, in Dworkin’s view, since it complies with the demands of the “original position.” As for those whites who suffer from preferential admissions for blacks, their political loss is outweighed by gains to the community as a whole.
Dworkin states that beside the right to equal treatment there is also a right to “treatment as an equal,” the right “to be treated with the same respect or concern as anyone else.” He finds that the rights of whites who suffer a political loss on account of reverse discrimination are satisfied if that loss is treated as “a matter of concern.” On this issue, Dworkin’s argument, dealing as it does in a calculus of gains to the community, would appear to put him in the camp of the utilitarians, to whom he is in general opposed. He insists, however, that to argue for a policy that will make the community more equal and just is not utilitarian but has to do with ideals that are grounded, once again, in the “original position.”
In his concluding two chapters, Dworkin considers a few “spurious” claims to rights, foremost among them the claim of a “right to liberty” which is believed by many to be more fundamental than the right of equality. Dworkin finds this belief “misguided,” and says it is “absurd to suppose that men and women have any general right to liberty at all” (this, despite his professed adherence to Rawls’s principles of justice, one of which promises the individual the “largest” political liberty compatible with the like liberty for all). There is evidence, in Dworkin’s view, that the demand for and the interest in liberty are psychologically damaging: for his authority he cites R. D. Laing, who believes that “the need to choose, which follows from liberty, is an unnecessary source of destructive tension.”
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The “rights thesis” as it is argued by Dworkin is unoriginal and un-proven, from beginning to end. To begin at the beginning, his characterizations of the judicial-restraint position are more nearly caricature than accurate description. Only mindless and totally discredited theories of extreme legal realism would deny that the courts have a responsibility to affirm fundamental principles and rights. Certainly none of those whom Dworkin names—from Justice Holmes to Alexander M. Bickel—has maintained that the courts should not be vigorous in the enforcement of rights. Equally preposterous is the notion that before John Rawls came along there was a paucity of illuminating works on the conjunction of constitutional law and moral theory. Among American judges, Holmes, Brandeis, Hand, Cardozo, and Frankfurter, and among American legal thinkers, Corwin, Freund, Hurst, and especially Lon Fuller—any one of these far surpasses Dworkin in the field of jurisprudence (notwithstanding Marshall Cohen’s ludicrous claim in a review that this book is “the most sophisticated contribution to [jurisprudence] yet made by an American writer”).
Dworkin’s method of arguing is disingenuous and irresponsible, and his standards of judgment shift whenever it suits him. Thus, the strong, consistent, and emphatic belief of many that screaming obscenities in the street is wrong is not enough in his view to justify legislation against it, but elsewhere precisely such recalcitrance of belief counts as a powerful argument for his own positions. In addition, the burden of proof is always placed on the position Dworkin happens to oppose—that certain homosexual acts should be outlawed, that there is a right of property and a right to liberty, that the use of racial criteria is dangerous—but little or no evidence is offered for his claims—for example, that liberty is damaging, that racial criteria are a sound basis for an academic selection process, or that there are two different rights to equality. The positions he supports need only be “plausible,” while the positions he opposes require something like mechanical demonstration.
How “plausible” are Dworkin’s positions? Those that deviate from established constitutional doctrine depend upon the prior plausibility of Rawls’s “original position.” Dworkin himself admits that men and women in the “original position” might not really choose Rawls’s principles for themselves, but he simply decides to “ignore the point,” since many of those who have written about Rawls’s book do find the “original position” compelling and they include a large number of “those who think about justice at all.” But it is not at all clear that anyone would choose the feckless options Rawls proposes and Dworkin ratifies. It would be just as “rational” to decide, for example, that a society should aim for distinctions of excellence and character among men, which would in turn necessarily result in some inequalities.
When it is proposed, as it is by Dworkin, that something as substantial as the United States Constitution be taken as “derivative” of a phantom “original position,” it is not unfair to insist that the proposal meet a certain burden of proof. Yet Dworkin jumps unconcernedly from a hypothesis which admits of no demonstration and which appears to have been invented out of whole cloth to an entire series of positions and policies about the real world for which he then claims the authority of his original hypothesis. This is the sort of nonsense which Orwell said only an intellectual could believe.
The discussion of reverse discrimination makes it clear that there is nothing like a deductive system at work in this book. Here the reader is told for the first time of the difference between the right to equal treatment and the right to treatment as an equal. How this distinction derives from the “original position” is not shown. As with the right to “dignity,” the alleged invasion of the personal rights of the Chicago Seven, the arbitrary disallowing of the segregationist who acts against rights “confirmed in law,” distinctions are made in order to justify a predetermined result. In Dworkin’s case, ideology precedes and does not follow from principle or theory.
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Apart from all this, there are at least four things wrong with the “rights thesis.”
First, although it is surely one major purpose of a constitutional republic to protect rights, there are other, equally important, purposes to be served, such as preserving security, liberty, and justice (the characteristics of a civil society as we know it). Some flexibility is needed to adjust competing demands for rights and liberties, and also to take into account such considerations as continuity, growth, stability, and a respect for the opinions of men. Continual balancing and weighing are required, even with regard to rights, especially when, as is often the case, more than one right is involved. When James Madison penned his warning about the tyranny of the majority, he was speaking not out of a belief that the purpose of government was primarily to protect the rights of minorities, but out of a belief that the rights of minorities could be forgotten amid so many other compelling considerations. Whether Dworkin likes it or not, politics, in all branches, is the business of accommodation.
Second, by urging a policy of judical hyper-activism in the defense of rights, Dworkin piles a heaping load on an already very full plate. The Court, and the lower courts, are asked to do too much. Even with their present agenda they run a serious risk of breaking down. It is foolish and self-defeating to recommend a course of action which is bound to fail in the real world and bound also to frustrate the achievement—the protection of rights—Dworkin claims to prize.
Third, Dworkin’s theorems do not apply to the mixed form of American government, in whose division of powers all branches must respect arguments of prinicple as well as arguments of policy. Dworkin’s notion that the courts are the main safeguard of principle, while the other branches are mindful only of policy considerations, is wrong; we regard it, in fact, as a terrible deviation when the legislature or the executive (as in the Watergate episode) ignores principles and acts solely out of “policy” in its deliberations and actions. Similary, the Court is not obligated to act out of what it alone takes to be self-evident principles and to ignore important social policies and “collective goals” as presented by others. In both theory and practice, the American division of powers is much sounder and more complex than Dworkin’s interpretation of it.
Fourth, Dworkin denigrates and underestimates the views of the people. The United States, as a society, has taken rights very seriously. Clearly, the courts have done much in this regard, as they have followed Hamilton’s (not Dworkin’s) exhortation in the Federalist to hold to an “inflexible and uniform adherence to the rights of the Constitution, and of individuals” and to “declare all acts contrary to the manifest tenor of the Constitution void.” But in characterizing majority and popular views as consistently inimical to rights, and in urging the courts to be the sole or major advocate of rights, Dworkin threatens the underpinnings of a free, self-governing society. As Felix Frankfurter, admittedly an advocate of judicial restraint, put it: “Holding democracy in judicial tutelage is not the most promising way to foster disciplined responsibility in a people.”
If the courts pay no heed to the people’s sense and to its exercising of its responsibilities, in the end the people will pay no heed to the courts and their exercising of theirs. And if a regard for rights, among other things, does not thrive in the people apart from the courts, the affirmation of rights in the courts will be fruitless.
