Reading the law

Thomas Nagel

  • Law’s Empire by Ronald Dworkin
    Harvard/Fontana, 470 pp, £16.95, May 1986, ISBN 0 674 51835 7

This important theoretical work appears in a definite political context. In the United States, theories of jurisprudence are politically controversial. The public is vividly aware that the way in which the law is interpreted, especially by Federal courts of appeal and the Supreme Court, has had and will continue to have large consequences for their lives and liberties. Controversy arises not just over specific issues like prayer in the schools, censorship, abortion, reverse discrimination, and the rights of accused criminals, but over the sorts of grounds on which cases involving these issues are to be decided. Much of the name-calling that breaks out anew with every major Court decision or right-wing nomination to the Federal bench has a distinctly philosophical character: liberals accuse conservatives of refusing to recognise individual rights; conservatives accuse liberals of inventing law rather than discovering it.

Growing out of the same legal culture, American philosophical jurisprudence is also enmeshed with political controversy, and at the theoretical level with moral and political philosophy. The most distinguished and original American philosopher of law, Ronald Dworkin, has been Professor of Jurisprudence at Oxford for many years, but his heart, and much of his influence, are to be found in the United States. Though he often uses examples from British law, the large questions that most engage him are those concerning equality, and the rights of individuals before the power of the state, which are especially conspicuous on the American legal scene.

Dworkin is a liberal, in the American sense – one of the most prominent intellectual representatives of that position. He is just the sort of person American conservatives have in mind when they accuse liberals of asking judges to ignore what the law is and to substitute their personal views of what it ought to be – an abuse of power and a circumvention of the democratic process. Conservative judges, it is implied, will not allow their political views to influence their judicial practice, but will sternly uphold what the law plainly says.

This is a familiar sort of humbug: invoking the authority of a higher-order, ostensibly neutral position of principle in support of one’s substantive, partisan convictions. But it is an important and difficult question, about all parties to these jurisprudential debates, what the relation is between their general theories of law and their specific views on controversial cases. Dworkin is identified, for example, with strong liberal positions on the permissibility of reverse discrimination and the impermissibility of suppressing pornography. He is also identified with the position that moral reasoning plays a crucial role in legal interpretation. Those who disagree with him on the substantive issues may be tempted to charge that his theory of adjudication is just an excuse for reading his own moral and political preferences into the law.

One of the many virtues of his new book is that it enables one thoroughly to examine and to dispose of that charge. Law’s Empire is a rich and multi-layered work: it brings out the distinctions among the many strands of Dworkin’s thought about law, politics, and morality, and the ways in which they are and are not independent of one another. Up to now he has written essays, many of them collected in two previous books, Taking Rights Seriously (1977) and A Matter of Principle (1985). But this is the first sustained, full-length treatment of his general theory of law, and the first book he has written from scratch. It is an ambitious book, and it does not disappoint the expectations appropriate to a major work by an important thinker. Dworkin has developed a complex and powerful system of ideas, and they are expounded here with the clarity and elegance to which his readers are by now accustomed.

Judges inevitably exercise great power in any society where important disputes are settled by appeal to the law – all the greater where laws may be struck down by appeal to a written constitution. This is because the law must be applied to actual cases whose range of variation over many dimensions is open-ended, and no significant statute or constitutional provision or earlier decision, however carefully drawn, can say on its face how it should be applied in every possible case that could be brought under it. Often the application will be clear, but sometimes, and often in very important cases, the law must be interpreted to be applied and the correct interpretation will not be obvious. To be a judge it is not enough to be able to read.

Dworkin’s first point is that when judges disagree over the correct decision in a difficult case, they are disagreeing over the correct interpretation of the law – over what the law is. There is not in such cases a plain fact as to what the law is, which anyone with enough information can discover. But that does not mean that there is no law at all, so that judges can make it up. Law, as Dworkin puts it, is an interpretive concept. To decide what the law requires in a given case it is necessary to consider, not only the facts of the case, the ‘plain language’ of the statute, and the examples of its previous application, but also the point of the law and of the larger institutions and practices in which it is embedded. All this is built into the practice of adjudication.

In justifying a decision in a controversial case, it is impossible to avoid reliance on some conception of the role of courts in the political order, their relation to the legislature and the executive, and the principles which warrant the use of state power to constrain or protect individual liberty. Legal argument always presupposes a jurisprudential foundation, even if it is concealed. And since the role of the judiciary can be justified only in terms of a broader conception of the legal-political order, it presupposes a political morality as well. Dworkin sums up the fundamental point of legal practice in this way: ‘Law insists that force not be used or withheld, no matter how useful that would be to ends in view, no matter how beneficial or noble these ends, except as licensed or required by individual rights and responsibilities flowing from past political decisions about when collective force is justified.’

Jurisprudence, however, is not identical with political theory, which can be Utopian in a way that jurisprudence cannot be. A political theory can attempt to describe an ideal legal and political order: but one of the most important tasks of jurisprudence is to explain why judges must apply and enforce laws of which they do not approve, which they would not have voted for, and which they think should be repealed. A legal system with legislative supremacy and a doctrine of respect for precedent faces judges with that responsibility all the time. Moreover, it arises not only where the meaning of the law is uncontroversial, but also in cases where interpretation is required. And since interpretation inevitably involves judgment about the best way to realise the purpose or point of the law, and of the system to which it belongs, it is a particularly delicate task to define the way in which the judge’s point of view can combine with other factors to yield a conclusion about what the law is which may not correspond to what he thinks it ought to be.

Dworkin’s answer to this question, and the theoretical core of his book, is a conception he calls Law as Integrity. I thought at first that this title was designed merely to give the theory a coating of sanctity. (Opposing views get names like Conventionalism and Pragmatism.) But the term makes a significant point. Consider what an ambiguous virtue integrity is. It can be ascribed with grudging respect even to someone whose principles you reject and whose purposes you oppose. A person of integrity is someone whose conduct follows from his principles in spite of public opinion, official pressure or personal temptation, whose conduct forms a certain kind of morally intelligible whole, even if his values are wrong.

This is not a bad model for judicial interpretation: construal of the law and its purposes in a manner which makes decisions flow from a coherent set of principles, even if those principles are not your own. The imaginative aim is to personify the legal system, so that each judgment can be seen as one manifestation of a coherent and pervasive, though complex, point of view. A judge is obviously constrained in such decisions by the requirement of fit with the language of the law and with earlier decisions, and he may have to accept some inconsistency among these antecedents. But the difficult problem is to say what it means to continue to adhere to principle when fit alone does not determine a clear result – when more than one possible decision could be thought to fit, some perhaps better than others. What kinds of argument can be used to identify the correct one?

According to Dworkin, judicial interpretation should aim to discover that reading of the law which makes its enforcement most justifiable in the light of the best justification that can be given of the total system of law and precedent to which it belongs – where this includes the best justification of the role of the judge in that system. This is not only a self-referential but a normative task: the best sense of the law is the sense, relative to the constraints of fit with what is already given, that makes the system the best it could be – best in both fit and substance, balanced against one another in a way which is itself a matter of evaluative interpretation. The arguments about such a question will inevitably call upon the judge’s basic moral and political convictions – not because those convictions can be assumed to be correct, but because moral and political issues form an important part of what he has to think about in carrying out the task of interpretation. (In this respect it is no different from a juror’s having to rely on his empirical convictions in evaluating evidence.)

For example, after several divided Supreme Court decisions it is a continuing issue in American law whether compensatory reverse discrimination – preferential hiring or admission of blacks by public institutions – is unconstitutional by the same standard of ‘equal protection of the laws’ that was used to rule old-style state discrimination against blacks unconstitutional. A crucial question is whether the equal protection clause of the Fourteenth Amendment requires a. that the category of race not be used in allocating differential treatment, or b. that differential treatment not be based on a certain kind of reason – namely, racial prejudice. Traditional racial discrimination would be ruled out by either of these principles: neither the language of the Constitution nor the requirement of fit with past precedent decides between them. The issue then is which interpretation of the equal protection clause, as an obstacle to racial discrimination, makes better sense of it in the context of the American legal system. This is partly a moral judgment, but it has a legal point: principle a. would rule reverse discrimination unconstitutional; principle b. would not. Dworkin holds that b. is the correct reading – that we must look through the category to the reason to account for what is wrong with discrimination.

Such a method may seem to give the judge complete freedom to inject his politics into the law in controversial cases – to read the law as being whatever he would have voted for as a legislator. But this is not so, for the role of the courts is itself a matter of judicial interpretation, and the best sense that can be made of their role in the overall political system will not grant them full discretion in controversial cases. That is, given the constraints of fit with actual written law and precedent to date, the best interpretation of the system, the one that makes the best moral and political sense of it, requires of the courts much more respect for coherence with pre-existing and surrounding law than is required of the legislature.

Dworkin’s general framework leaves room for a range of views on the subject of judicial restraint. We should note a useful distinction he draws between two very different senses of the ‘liberal-conservative’ contrast which are often confused in public discussion. A judge may be conservative in the sense that his convictions about fit are strict, leaving as little room as possible for substantive values to influence the choice between interpretations: but a judge who is conservative in this sense may be liberal in his political and moral convictions – about justice and individual freedom, for example – and this will influence his interpretations within the bounds permitted by his strict convictions about fit. Similarly, a judge who is politically conservative may be liberal or even radical about fit, in which case he will be a judicial activist who permits himself wide latitude to decide cases in a conservative direction, and to overturn precedent when the letter of the law does not clearly rule this out. (This is true of Justice Rehnquist, for example, soon to be elevated to Chief Justice, whose Supreme Court opinions are strongly ‘result-oriented’: easily predictable on the basis of his personal political views.)

Dworkin’s substantive political convictions are liberal: economically and socially egalitarian, and committed to strong individual rights against the will of the majority in the conduct of personal life. With regard to strictness of fit he is moderately liberal, allowing significant though not dominant weight to such factors. But within the general conception of law as integrity, as he recognises, his particular position could be attacked as being either too liberal or too conservative with respect to fit, and either not conservative enough or not radical enough with respect to moral substance.

Let me describe one area of controversy by way of illustration. Someone less sympathetic than Dworkin to the greatly expanded protection of individual rights against legislative and executive power in American constitutional interpretation over the past few decades might argue as follows, combining several points. He might say first that insufficient respect was being shown to the intention of the framers of the Constitution. Clearly they did not have in mind a right of privacy of the kind that has been used to strike down laws prohibiting abortion. Nor did the framers of the First Amendment have in mind that the publication of pornography would be protected under freedom of the press. He might say also that even if the framers’ intention and past precedent did not rule out such interpretations, it is in such cases contrary to fundamental principles of democracy to go against the will of the majority, as expressed by the legislature, on the basis of controversial interpretations arrived at by the moral and philosophical reasoning of unelected judges. The power to strike down democratically passed laws should therefore be exercised sparingly, and only on the strongest of textual grounds. Finally, he might say that many of the ‘rights’ that have been recognised in recent decisions are morally spurious, and that a system which protects them is worse than one which does not, even apart from questions of constitutional history.

Dworkin has several replies to the point about intention, but the most important is this. Even if we leave aside the question of whose intentions we are to consider, how we are to discover them, what to do if they conflict with one another, and what to do where the framers never gave any thought to the question we are now trying to decide, there remains the problem that any author of a constitutional provision or statute may have both abstract and concrete intentions which in our own opinion are in conflict, and we must decide which of these to take as dominant.

For example, to return to the equal protection clause: when it was adopted, it was thought not to rule out racially segregated public schools. The Congress that proposed the Fourteenth Amendment in 1866 continued to maintain segregated schools in Washington DC (for whose government is was directly responsible), and they remained segregated until segregation was ruled unconstitutional on the basis of that same amendment in the case of Brown v. Board of Education, 88 years later.

The Brown decision can be explained as a finding that the abstract intention of the framers, to guarantee equal protection of the laws, was inconsistent, contrary to their own belief, with their concrete intention to permit segregated public schools – and a decision to take the abstract intention as dominant. (This is also an example of the distinction between concept and conception: the concept of equality of treatment can be filled out by various different particular conceptions of how it is to be realised.)

The judgment of inconsistency is not a logical but an ethical-political one, which employs ideas about race and society that have become widely accepted over time. Dworkin believes that it is right to take the abstract rather than the concrete intention as dominant in this and other cases of conflict, being guided by what makes best moral sense of the system as a whole. Indeed he claims that this licence to correct their concrete intentions by reference to their abstract ones is in accordance with the intentions of the framers themselves (who didn’t assume they were infallible about such things as what constitutes equal treatment) as well as being authorised by a long tradition of judicial practice. If this is right, courts of appeal have considerable freedom to use moral reasoning in the interpretation of abstract expressions like ‘cruel and unusual punishment’, ‘freedom of the press’, ‘establishment of religion’ and ‘due process of law’.

But that brings us to the question whether allowing unelected judges so much power to thwart the will of the majority is undemocratic, in a way that makes it not the best interpretation of the role of the judiciary in the American legal system – either from the point of view of fit with American traditions and practices or from the point of view of political morality. This involves a very difficult issue of political theory – the part played by restrictions on majority rule in guaranteeing the legitimacy of democratic government – and it inevitably brings up the third point in the argument: scepticism about the strength or reality of certain individual rights.

Dworkin’s position on these issues, and his understanding of integrity in law, follows from a general view about political legitimacy: about what it takes for a community to be able to claim the special allegiance of its members and their obedience to its collective decisions as a matter of obligation and not bare power. In an interesting discussion of the ethics of association he argues that a true community of principle must be more than a framework for political compromise among opposing interests, and that legitimacy requires that it realise both the virtue of justice – treating the members of the community as equals – and what he somewhat idiosyncratically calls fairness: giving citizens more or less equal influence in the decisions that govern them. Obviously these can conflict, as when by democratic vote a majority seeks to suppress a minority religion: the minority are not being treated as equals even though they have a vote like everyone else. The balance between these two elements in a legitimate system, often taking the form of the balance between majority rule and individual rights, can be drawn in various ways. But responsibility for maintaining the integrity of the system can legitimately be assumed, Dworkin believes, by the courts.

Some would argue that equality of political influence is, relatively, far more important for legitimacy than Dworkin thinks it is, and that many of the rights protected by the US Constitution are actually designed to keep vulnerable minorities from being deprived of it. They would hold that controversial decisions about the requirements of justice should in any case be left more in the hands of elected legislators, as is true in Britain, rather than of judges. This does not mean that legislation should ignore moral argument about which individual rights need protection against the claims of general welfare or popular will – only that the authority to afford such rights the protection of the law should be more broadly based than it is when vested in an unelected court of appeal. (This claim has less plausibility with regard to the protection of discrete minorities.)

Dworkin would reply, plausibly enough, that the popular will or even the legislature are not to be relied on to determine the limits of their own authority. But one might think that the Supreme Court is no more to be relied on to determine the limits of its authority: which is precisely what it does under the present system. This results, on Dworkin’s interpretation, in the legitimate assumption by the Court of very great power to overturn legislation on grounds that are partly historical but largely moral. Though the character of the moral ground is restricted, this claim of legitimacy remains a radical one, and readers may feel that the basis for scepticism about this particular division of labour between the courts and the legislature has not been seriously reduced by Dworkin’s arguments.

Dworkin is careful to say that he is not engaged in utopian political theory, and that perhaps a system very different from the best interpretation of the one we have would be better. Nevertheless it is clear that his philosophical convictions about individual rights and the role of moral philosophy in their discovery play an important part in convincing him of what the best interpretation of Anglo-American law is – as they should on the theory of law as integrity. Others, with different convictions about morality and political legitimacy, can defend different interpretations within the same framework. This helps to make the character of real jurisprudential debates more intelligible, and locates the sources of disagreement accurately.

There is much in the book that I haven’t discussed: detailed treatments of adjudication in the common law, and in the application of statutes; a clear sorting-out of the jurisprudential issues about the status of law and judicial practice in a morally abhorrent system like that of Nazi Germany; a short, sharp attack on the Critical Legal Studies Movement; a useful discussion of moral scepticism and the law, and much more.

One thing keeps cropping up in the book that it really would be better without, like crabgrass in a smooth lawn. Dworkin has a mysterious weakness for analogies between judicial and literary interpretation; going further, he seriously compares adjudication to writing the next chapter in a chain novel – which hardly strengthens his position that there is a right answer in hard cases. Since his general claims about interpretation are much less credible than his specific claims about law, it is fortunate that his case doesn’t rest on parallels like this: ‘Interpretation of works of art and social practices, I shall argue, is indeed essentially concerned with purpose not cause. But the purposes in play are not (fundamentally) those of some author but of the interpreter. Roughly, constructive interpretation is a matter of imposing purpose on an object or practice in order to make of it the best possible example of the form or genre to which it is taken to belong.’ This suggests that we have custody over the works of art produced by others, as over our social practices and institutions. Those who find this as implausible as I do can safely subtract it from the main argument of the book.

There are signs of haste in composition at one point, where Dworkin argues unpersuasively that the best interpretation of the common law of economic compensation for damages involves an ideal of equality in the allocation of resources, rather than efficiency or some mixture of efficiency and freedom. Here he really seems to be straining to find his own views in the law, and to dismiss alternatives too easily. The argument is in any case highly compressed, and too dependent on references to his long and complex discussion of equality in Philosophy and Public Affairs (1981). Dworkin’s very interesting views on distributive justice, still in the process of development, do not receive adequate representation here. But for the most part the book is self-contained, and unusually accessible for a work dealing with abstract questions at such a high level. It is full of substance, and admirably suited for the prominent and influential role it will undoubtedly achieve.