Dworkin’s Views on Law

Jeffrey Thayne

How should judges make their decisions? Should they base it on their own beliefs, historical precedence, or purely on the plain wording of legislation?

Dr. Reynolds describes Dworkin as a very enigmatic figure. According to Dr. Reynolds, Dworkin would publicly present a treatise on law, but would never participate in the subsequent public discussion about his views. He would rarely respond to the questions, critiques, or criticisms of his views. His philosophy has been very influential, but not always understandable or consistent.

Some of those criticisms are well founded. This presentation of Dworkin will be taken entirely from Shirley Robin Letwin’s critique of his philosophy. I do not have any original sources in front of me, so Letwin’s analysis will have to suffice for now. She does not approve at all of Dworkin. In fact, she sees Dworkin’s writings as a “thorough attack on the idea of law.” Of course, Dworkin himself would claim that he is revising the idea of law in order to preserve it from its weaknesses, but Letwin does not see it that way.

According to Letwin, Dworkin’s philosophy of law was presented primarily in three publications: Taking Rights Seriously, A Matter of Principle, and Law’s Empire. This is important because each publication presents a slightly different point of view, and it is difficult to meld all three into a coherent whole, because they sometimes contradict each other and use very different rhetoric. “However,” says Letwin, “the moral of his story has remained the same in all—law and political theory are so inexorably intertwined that law and politics are essentially one.” We will discuss the views presented in each of Dworkin’s publications in sequence.

Taking Rights Seriously

It is difficult to place Dworkin on either side of the Natural Law vs. Positivism debate, because both sides regularly claim him as their own. While Dworkin claims that his philosophy is an alternative to positivism, natural law theorists are very uneasy with his claims. Letwin explains, “Natural lawyers accuse him of arguing against fixed morality in law, while many claim his theories are most properly described as natural law.” In the end, the best label to attach to him is exactly how Dr. Reynolds describes him: an enigma.

Dworkin argues that positivism gives judges too much of a free reign in interpreting law in “hard cases.” Hard cases are those cases in which a judge must interpret a law in circumstances with little or no precedence, as well as cases which are politically charged and in which the law is ambiguous. The reason positivists give judges too much discretion in these cases, says Dworkin, is because of their separation of “legal rules from non-legal standards.” Positivists believe that the legality and the validity of law is unrelated to its desirability and morality. Therefore, in hard cases in which the law is ambiguous or their is no clear precedent, the judge must appeal to extra-legal standards in order to make a ruling, such as a judge’s political or moral ideals.

Dworkin feels as though this gives judges too long of a leash. He claims to solve this problem by re-construing the nature of law to include principles traditionally thought of as extra-legal principles. For example, a judge may look to historical precedent, and observe an over-arching pattern to legislation and adjudication, and from this pattern articulate a principle on which he should base his present ruling. Because the judge is bound by these legal principles, his discretionary leash is shortened.

Dworkin felt, however, that these overarching legal principles should have a voice even in cases that are not difficult, or when the law is unambiguous. For example, because the Fugitive Slave Act unambiguously stated that escaped slaves were to be returned to their owners, the Supreme Court ordered slaves to be returned in accordance with the law, “even though they themselves were strongly opposed to slavery.” Dworkin felt as though this ruling was in error, for even though the law was unambiguous, the United States Constitution and subsequent legislation established an over-arching principle of freedom and human dignity which the judges ignored.

Thus, it seems that although Dworkin claims to restrict judicial discretion, he encouraged it even more by claiming that judges were not required to adhere to written law, but to unwritten principles they can discern from the overall body and history of law. Letwin continues, “Dworkin thus moves from an apparently technical discussion of ‘hard’ cases to the conclusion that it is normal and desirable for legal decisions to be political decisions.”

As indicated by the title of his first publication, these legal principles on which Dworkin believes judges should base their rulings are largely articulated in the rhetoric of legal rights and equality. Letwin explains:

In fact, as Dworkin himself says bluntly, he is out to defend equality, which, he maintains, cannot be reconciled with liberty. “The idea of a right to liberty is a misconceived concept that does dis-service to political thought,” Dworkin declares. The “idea of a right to liberty” creates “a false sense of a necessary conflict between liberty and other values when social regulation, like the busing program, is proposed.” The law ought to be based, Dworkin says, on the principle of “equal concern and respect,” and he regards the requirements of this principle as so self-evident that he sees no need to defend it.

A Matter of Principle

Dworking’s second publication is dedicated more to the way in which judges interpret the law and discern the overarching legal principles he espouses. Consider, Dworkin said, a critic interpreting a work of art or literature. The way he interprets the work of art will largely depend on what he sees as important in not only art, but the world around him. Because of this, according to Letwin, “we cannot separate interpreting a work of art from ‘evaluating’ it. … Interpretation has normative presuppositions.” Dworkin goes even further, and claims that “the artist can create nothing without interpreting as he creates, [and the critic] creates as he interprets.” Letwin continues, “By equating ‘normative beliefs’ with every sort of presupposition, Dworkin makes it impossible to distinguish interpretation from evaluation and thus converts interpretation into a synonym for evaluation.”

Dworkin used these facts to justify the possibility that judges may seem to create new laws as they interpret law. For Dworkin, “adjudication is likened to producing a novel by a chain of authors. Just as each author has to construct a unifying conception of what his predecessors have written, so the judge has to determine what ‘the point or theme of the practice so far, taken as a whole, really is.'” As Dworkin argued in Taking Rights Seriously, what authors have written before can be pieced together into an overarching plot-line, and the judge must rule accordingly. As there are many possible interpretations of the story so far, each judge must choose an interpretation of the story that he determines as “a sounder principle of justice.” Again, as he argued in his first publication, Dworkin believes that the sounder principle of justice that is often ignored is the principle of equality. Letwin says,

Not many conservatives would agree, but according to Dworkin conservatives value the ideals of liberty over those of equality, and believe that it is possible to uniformly determine the ideals of a good life and therefore to expect the government to promote them. As liberals claim no such pretensions to the proper mode of life, they recognize the prominence of the moral principle of equality, “that human beings must be treated as equals by their government,” over that of liberty. …

From his principle of equal concern and respect, the liberal derives a number of practical and inescapable conclusions. Unlike the conservative, he would qualify the decisions of the market, as well as rights to property and freedom of contract, in order to produce a more equal distribution of wealth. Where people have different talents and handicaps and inherit more or less wealth, “It is obviously obnoxious to the liberal conception” to allow one man to own more because “his father had superior skill or luck.” The liberal therefore supports government intervention for the redistribution of goods. And if he finds that an adequate distribution cannot be achieved within a capitalist economy, the liberal would be forced to reluctantly substitute “socialist for market decisions over a large part of the economy.”

That the written law may contradict the decisions of a judge does not concern Dworkin so much as whether judge’s decisions meet the demands of over-arching legal principles. Dworkin opposes what he calls a “rule book conception” of law, which, according to Letwin,

he describes as the belief that “the power of the state should never be exercised against individual citizens except in accordance with rules explicitly set out in a public rule book available to all. The government as well as ordinary citizens must play by these public rules until they are changed, in accordance with further rules about how they are to be changed, which are also set out in the rule book.”

Dworkin explicitly said, “My point was not that ‘the law’ contains a fixed number of standards, some of which are rules and others principles. Indeed, I want to oppose the idea that ‘the law’ is a fixed set of standards of any sort.” Instead, he proposed his “rights conception” of law. Each individual has moral duties to each other and rights against the government, and the judge must rule according to these duties and rights, without giving undue preference to the written verbage of the law. According to Letwin, “By abandoning the rule book conception and allowing, indeed encouraging, the political decisions required by his rights conception, Dworkin plainly rejects the traditional insistence on the separation of powers between judges and legislators.” Dworkin contends that the rule-book conception of law places too much emphasis on liberty rather than equality, and he argues that “‘liberty’ is not a right, but should always give way to ‘equality,’ and that injustice consists wholly in a denial of equality, not liberty.”

Law’s Empire

Dworkin’s third publication is less radical than his previous two. In fact, he even contradicts many of the claims he had previously made. For example, he made the opposite claim with regards to the Supreme Court’s decision on the Fugitive Slave Act. He said, “If a judge’s own sense of justice condemned that act as deeply immoral . . . he would have to consider whether he should actually enforce it on the demand of a slave owner, or whether he should lie and say that this was not the law after all, or whether he should resign.” This statement shows much more respect for the written law than his previous claim that the judges should have simply disregarded the law. According to Letwin,

Dworkin even goes so far as to deny that he has any quarrel with the view “of most laymen,” which is also “the anthem of the legal conservative,” that “The law is the law” and that “It is not what judges think it is, but what it really is. Their job is to apply it, not to change it to fit their own ethics or politics.” This view, “read word by word,” Dworkin pronounces as “nothing controversial.” And he condemns “activism” in constitutional adjudication on the grounds that justices should “enforce the Constitution through interpretation,” not “fiat,” and that their decisions “must fit constitutional practice, not ignore it.”

While these statements imply that Dworkin has renounced his earlier claims, the overall message of his third publication is the same as the first two, but simply presented in more appealing rhetoric. He presents his theory of “law as integrity.” In order for people to see law as legitimate, law has to be coherent, and this means that law must coincide with the overall voice of the overarching principle. Letwin explains that in Dworkin’s view, “the coherence of the law becomes synonymous with “the state speaking with a single voice,” with seeing the law in terms of a single principle, or as the work of a single author.” This does not mean that a judge is bound by precedence; he may depart from the written law if doing so will satisfy the demands of principle that the written law or precedence does not.

Summary

Dworkin sees the purpose of law as preventing injustice; he defines injustice as inequality. Judges should rule based upon the demands of legal principles, which require that the judges rule in such a way as to promote overall equality, without regard to written law or liberty. “In plain words,” Letwin says, “Dworkin is advocating that the law be used as an instrument for redistributing resources so as to secure equality.” He describes this as the goal of an “organic” community, and thus believes that the rule of law is thus “compatible with a community understood as an enterprise pursuing a single objective.” In conclusion, says Letwin,

Where there is an enterprise, there must be an objective that the enterprise is seeking to achieve. In other words, an organic community has to have a single objective. There is no such objective for the kind of community postulated by the traditional idea of law because it does not seek to order the activities of its members so as to promote a superior unitary good, but to allow each peacefully to pursue, either alone or in association with others, whatever projects one chooses.

For this reason, Letwin believes that Dworkin’s theory is attack on the idea of the rule of law. Dworkin blurs the distinction between legislation and adjudication, and turns law into an instrument of coercion in service of a particular political ideology.

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Notes

All quotations taken from Shirley Robin Letwin, On the History of the Idea of Law (Cambridge: Cambridge University Press, 2005).