Everyone believes in the rule of law. But how do we tell what the law is, especially for new and difficult cases? Can judges and lawyers just look it up—read it out of a book? Many people—politicians especially, when they are debating the confirmation of federal judges—say the answer is yes. Not Ronald Dworkin. Since the early 1970s, Dworkin has been the most distinguished exponent of the view that lawyers and judges cannot say what the law is, on any issue, without engaging their own values and principles, their own conceptions of right and wrong, their own best estimates of what makes a society a good society and what makes it just or unjust.
Professor Dworkin has expounded this position in several books that have had an enormous influence in legal philosophy and constitutional theory: Taking Rights Seriously (1977), A Matter of Principle (1985), Law’s Empire(1986), and Freedom’s Law (1996).1 Like most of these books, Justice in Robes brings together lectures, essays, and other interventions that have been published over the previous eight or nine years.2 But the collection is not leavened, as some of the earlier ones were, with essays on particular topics of public concern, like civil disobedience and affirmative action in Taking Rights Seriously, or abortion and pornography in Freedom’s Law. The only topical discussion in Justice in Robes is an eleven-page appendix to one of the essays, arguing with Richard Posner—the 7th Circuit judge, Chicago jurist, and self-styled “legal pragmatist”—about the style of adjudication that would have been appropriate for Bushv. Gore (2000).3
So Justice in Robes is not an easy read. A lot of it involves quarrels internal to legal philosophy, as Dworkin defends his theory against opponents like Posner, Cass Sunstein, Jules Coleman, Stanley Fish, Joseph Raz, Antonin Scalia, and the late H.L.A. Hart. Still, the underlying question is of the first importance—How do we reconcile the rule of law with judges’ deployment of their own values and their own theories of the good society?—and on that there is enough here that is new and important to make the book well worth reading for anyone interested in the law.
When Dworkin says that judges have no choice but to engage their own values, he is not saying that they should simply decide cases in the way they think would be best for all concerned. He is not calling for judges to substitute their own value preferences for those embedded by the Framers or the legislature or earlier generations of judges in existing legal materials. There are some commentators who talk like that. They call themselves legal pragmatists and they think that deference to existing legal materials makes little sense: they say that our Constitution is antiquated; they complain that our precedents require us to engage in labored and unproductive analogies. As for our statutes—well, they say, judges applying their own values are likely to do much more for the public good than politicians sitting in the pork barrels that…
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