Beyond the Law
A Matter of Principle.
by Ronald Dworkin.
Harvard University Press. 425 pp. $25.00.
Alexander Hamilton once defended the federal judiciary with the observation that “the possibility of particular mischiefs can never be viewed, by a well-informed mind, as a solid objection to a general principle which is calculated to avoid general mischiefs and to obtain general advantage.” Two centuries later, those “particular mischiefs” have come to claim victims as unlikely as a policeman sued, in the words of Judge Richard Posner, “in federal court under a federal civil-rights statute for alienating a dog’s affections.” Posner is himself an outspoken member of the growing coalition of critics of the federal judiciary—critics who include, among others, parents who object to forced busing; members of any race or sex who object to the use of quotas; religious organizations and their followers who object to being told that they taint the public square; some untold millions who have yet to be persuaded that the Constitution includes a right to abortion; and law-abiding citizens from all quarters who feel threatened by the proliferation of criminal rights.
Indeed, as the breadth of these issues suggests, if the “populist” or “neopopulist” turn in national politics has a single source at all, it is discontent with the scope and prerogatives of the judicial branch at large and of its nine most conspicuous members in particular. This popular challenge is no mere rumbling; it is a full-blown tempest. The courts themselves are awash in it, burdened with everything from reverse-discrimination suits to a direct challenge from the Justice Department over one of the most important Supreme Court decisions of the century. From ditchwater school districts to the capital itself, backlash proceeds apace.
It does not proceed everywhere, though, and anyone seeking refuge from the popular discontent can find no better sanctuary than the corridors of contemporary legal theory. Here, despite the occasional skirmishes, serenity reigns supreme. The realists had a bad time of it yesterday, and the utilitarians are in for it today—but the parties in question are civil and, what is most important, they are equally deaf to the noise rising up from the streets. With all due respect to this philosophical detachment, however, it does prompt a serious question: what is going on in there?
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A partial answer can be found in the work of Ronald Dworkin, simultaneously professor of law at New York University and professor of jurisprudence at Oxford, and one of the most influential legal theorists now writing. Eight years ago, with the publication of Taking Rights Seriously, Dworkin established himself as something of a celebrity, both inside the field of legal theory and out. In the philosophical journal Ethics, Dworkin’s book was described as “the most significant book on philosophy of law in this decade and surely one of the most interesting of the century,” while in the New York Review of Books it was hailed as “the most important work in jurisprudence since H.L.A. Hart’s The Concept of Law” and “the most sophisticated contribution to that subject yet made by an American writer.” This was unusual praise for an abstract work on legal theory; but then, Taking Rights Seriously was an unusual book.
Taking Rights Seriously began with a twofold assault: on legal positivism, a theory which assumes “that law is made by explicit social practice or institutional decisions,” and on its underlying moral theory, utilitarianism, “which holds that law and its institutions should serve the general welfare, and nothing else.” The problem with these Benthamite theories, Dworkin argued, is that they neglect “the crucial fact that jurisprudential issues are at their core issues of moral principle, not legal fact or strategy.” To remedy that neglect, Taking Rights Seriously presented Dworkin’s own theory of individual rights, one grounded in the idea that individuals have moral rights against the state that are “prior to” the rights created explicitly by legislation.
These rights, Dworkin argued, must be “discovered” through some combination of moral theory and legal precedent. Unfortunately, since no “mechanical procedure” exists for determining what these rights may be, the act of discovery must begin anew in any particular case. This means, above all, that judges need not feel bound by the traditional dictum that adjudication should be as unoriginal as possible.
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That is the central argument of Taking Rights Seriously, and it runs throughout the new book. Like its predecessor, A Matter of Principle is a collection of essays. Seven of the nineteen were first published in the New York Review of Books, and most of the rest in assorted legal and academic journals. Unlike Taking Rights Seriously, whose essays proceeded schematically, A Matter of Principle is loosely divided by subject: the political basis of law; law as interpretation; liberalism and justice; the economic view of law; reverse discrimination; and censorship and a free press. The essays are united in spirit by a sense of urgency (“the ancient argument over whether judges should and do make law is of more practical importance than ever before”) and in substance by the distinction, which appeared in nascent form in Taking Rights Seriously, between matters of principle and matters of policy.
In the language of the book’s introduction, arguments of principle are based on rights; they claim that “particular programs must be carried out or abandoned because of their impact on particular people, even if the community as a whole is somehow worse off as a result.” Arguments of policy, on the other hand, are based on goals; they “try to show that the community as a whole would be better off if a particular program were pursued.” When principle and policy are harmonious—when, for example, an act of the legislature does not impinge on anyone’s rights—then judges can defer to the legislature, and the course of adjudication is smooth. But when conflicts between goals and rights arise, then “policy must yield to principle.”
As might be expected from a collection of essays written for different audiences over the course of several years, A Matter of Principle does not so much refine this distinction as illustrate its use in a panorama of settings. In the essays on positive and reverse discrimination, for example, Dworkin argues that no principle based on individual rights can be found to conflict with the goal of affirmative action. Thus, rather than deciding wholesale for or against discriminatory measures, “we must judge various programs of affirmative action one by one, by weighing practical costs and benefits.”
The distinction is used to similar effect in the essay on nuclear protest, where Dworkin separates civil disobedience based on policy disagreements from disobedience based on principle, and suggests that the law should be enforced leniently, if at all, against protesters who stand on principle. In the concluding section on free speech, Dworkin invokes his distinction to argue generally against censorship and for a free flow of information; free speech, it emerges, can be curtailed, if rarely, because of principle (for example, if it interferes with the right to a fair trial), but almost never by considerations of policy—national security being a case in point.
In this protean fashion, A Matter of Principle spreads itself, like Taking Rights Seriously before it, over vast stretches of philosophy, politics, and jurisprudence. While its arguments are not always consistent—it is never clear, for example, whether adjudication is only “characteristically” a matter of principle, as Dworkin says in one essay, or always a matter of principle, as he seems to suggest in another—Dworkin’s new book is guided on the whole by his earlier essays on rights. And that, as a closer inspection of the book’s title reveals, creates a problem. What, after all, does Dworkin mean by “principle”? It is a question that requires another. For principles rest on rights, and the rights in turn rest on—well, something.
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What does Ronald Dworkin mean by “rights”? What he does not mean is obvious from the outset. He does not mean, for example, that individual rights can be ascertained by anything so ephemeral as the Constitution itself. Above all, they cannot be ascertained by exploring the intentions of the Framers; as he asserts in an essay on “The Forum of Principle”: “There is no such thing as the intention of the Framers waiting to be discovered, even in principle. There is only some such thing waiting to be invented.”
In fact, as Dworkin explained in Taking Rights Seriously, to search for intention at all is to misunderstand the Constitution itself, for any such search must “ignore the direction to face issues of moral principle that the logic of the text demands.” That is not to say that Dworkin would have judges ignore the Constitution altogether. Rather, they are to recognize that commitment to the text “presupposes a prior commitment to certain principles of political justice which, if we are to act responsibly, must therefore be reflected in the way the Constitution is read and enforced.” And foremost among these principles, as he argued in Taking Rights Seriously, is the “abstract right to equal concern and respect” which is “fundamental and axiomatic.” It is from this general principle of equal treatment that Dworkin derives his rights.
In the course of A Matter of Principle these rights come to include: a right to moral independence; a right to break the law; a right to listen (one that is “parasitic upon” the right to speak); a right to have criminal procedures attach the correct importance to the idea of “moral” (as opposed to “bare”) harm; a right to a consistent weighing of the importance of said harm; and a right to report what one believes important to one’s fellow citizens. General as these formulations are, one should not infer from them that anything can count as a right. Most notably, and as Dworkin argued in Taking Rights Seriously, we do not have a general right to liberty. And because we do not, our rights to certain economic liberties, in particular, are at best a matter of doubt.
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If Ronald Dworkin’s rights are beginning to sound suspiciously like the druthers of any Left-leaning intellectual whose political compass points faithfully to the late 1960’s, that is exactly what they are. Dworkin’s latest book does not betray his political leanings, it trumpets them, from the ominous note on the first page (“the man now President may appoint enough Supreme Court justices to set the character of that commanding institution for a generation”) to the very last footnote, which questions the validity of commercial secrets. Political partisanship may seem out of place in a book about “fundamental theoretical issues of political philosophy,” but it will come as no surprise to anyone acquainted with Dworkin’s first book, whose very purpose was “to define and defend a liberal theory of law,” and which toward that end served up not only ideological arguments but also sotto voce righteousness about Richard Nixon, Spiro Agnew, and conservative critics of the Supreme Court.
In one respect, however, A Matter of Principle is an improvement over its predecessor, for it succeeds in establishing—as Taking Rights Seriously did not—exactly how narrow Dworkin’s conception of liberalism is. Certainly it is narrow enough to exclude many liberals who may not agree with Dworkin’s leftist particulars—such as his claim that they are, qua liberals, “suspicious of the criminal law,” or that they “support procedural constraints and devices . . . that make it difficult to secure criminal convictions.”
Dworkin’s political partisanship may not have much to do with legal theory, but it has everything to do with the ahistorical bent of his work. What, after all, are Dworkin’s subjects in A Matter of Principle? Constitutional law? Scarcely any case he mentions predates the Warren Court. Anglo-American jurisprudence? Except for the works of H.L.A. Hart, Dworkin’s sources for that tradition are derived almost entirely from contemporary legal and academic journals. Political philosophy? His essays do not betray even passing interest in that tradition of some two millennia. In fact, they do not even betray interest in the founders of classical liberalism themselves, who are, with the notable exception of John Stuart Mill, no more to be found in Dworkin’s pages than any other luminaries interred before the late 19th century.
This is not the scholarship of legal theory; it is the scholarship of convenience. Any legal precedent, any abstract argument that does not confirm Dworkin’s own political preferences is simply consigned to oblivion. Yet it would be unfair to suggest that he argues in bad faith—on the contrary, his advocacy is (as the saying goes) a matter of principle. To see how this is so, one need only turn to the essay on “Liberalism” in his latest book. Here, it emerges that the principle of equal treatment—which, one recalls, is the principle from which Dworkin’s rights flow, and the one which he argues is paramount to adjudication—turns out to be precisely the “nerve” or “central principle” of Dworkin’s liberalism itself! That is to say, judges should decide for and against whatever Ronald Dworkin is for and against—not because he is Ronald Dworkin, of course, but because judges should be guided by the same general principle that happens to fuel liberalism (properly understood) itself.
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In the end, though, it does not matter that Dworkin aspires to political theory while neglecting political theory altogether, and it does not matter that he aspires to legal theory while ignoring any precedents that inconvenience him. What does matter is that insofar as Dworkin’s subject is the American judiciary, he is too blind with ideology to understand it. For we do not need a liberal theory of law or adjudication. We do not need partisan attempts to capture the judicial branch of government at all. What we need is some explanation of how that branch, that “least dangerous department,” as Hamilton once called it, came in the course of a few decades to intrude on more walks of life than even its most vehement critics could ever have anticipated.
That question is not a matter of ideology; it is a matter of power. Not long ago, a federal court judge ordered a warden to replace every toilet in his prison on the grounds that the plumbing violated criteria of “humane standards.” And that order was quite in keeping, for instance, with the Supreme Court’s recent decision to prevent the elected government of Alabama from providing students with a moment of respite from their teachers. It was likewise in keeping with Roe v. Wade, which legalized abortion and which is regarded on all sides as the most sweeping decision in the modern Court’s history. All are examples of a federal judiciary whose domain now runs the gamut from the most controversial of moral issues to the most pedestrian of human activities.
It has been some time since a significant number of legal theorists has seen fit to question that domain. Some have merely acquiesced in it; others, like Dworkin, have been pleased enough with the results to advocate its expansion. Now, when the specter of Ronald Reagan looms over an aging Court, they are beginning to understand that the new judicial prerogatives they have defended may become weapons in an enemy’s hands. There can be no more appropriate predicament for those legal theorists who have long acted, to paraphrase Hamilton, as if the possibility of a general principle is never to be viewed as a solid objection to whatever particular mischiefs happen to please them.
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