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Advice for ‘Judge and Company’

Law’s Empire

by Ronald Dworkin
Harvard University Press (Belknap Press), 470 pp., $20.00

1.

Introducing his first book a decade ago, Ronald Dworkin proposed to work out a new liberal theory uniting law with political morality. This was necessary, he argued, because of the inadequacies of what he called “the ruling theory”—the disjointed combination of legal positivism and political-moral utilitarianism formulated by Jeremy Bentham and developed by such successors as John Austin, Oliver Wendell Holmes, and H.L.A. Hart.1

Behind the “ruling theory” was the urge to deflate the larger claims of the judiciary and the commentators on the law—the tribe that Bentham called “Judge and Company.” Bentham’s own primary target was Sir William Blackstone, who had described English judges as the “living oracles” of a law that distilled “ancient and long established custom” into “the perfection of reason.” Oxford professor, High Court judge, commentator on the laws on England, Blackstone was, in his eloquent complacency, the prototype for every subsequent bar association orator on the glories of the law.

Bentham began his jurisprudential career with an attack upon Blackstone’s celebrated definition of law as “a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.” In Bentham’s view, this definition deceptively promoted the power of judges and lawyers by confusing the question of what the law is with the question of what it ought to be. These, he argued, were distinct questions, to be answered in practice by separate branches of government and in theory by separate branches of legal science.

For Bentham, the law that is was to be identified by “expository jurisprudence” and applied by judges; its content must be a pure matter of fact, whose determination involved no moral or political value judgments. Accordingly, he defined law as whatever statutes and other official directives had been laid down or “posited” (hence “positivism”) by the supreme power in the state, however unjust or immoral these might be. Once this positive law was identified, “censorial jurisprudence” could then proceed with the separate task of its evaluation, and the legislative branch of government with its reform.

The censorial jurist and the legislator were to judge laws and institutions solely by their contribution to the well-being of those affected by them, freed both from the prejudices of inherited custom and from the superstitious belief in a transcendental higher law. Bentham believed that a legislature chosen by the broadest possible electorate was the institution most likely to produce laws that served the public welfare, and that the legislators so chosen should spell out the law in the form of detailed statutes, which left judges and commentators little discretion in their interpretation and application.

In his book Dworkin attacked this Benthamite fragmentation of legal theory, and proposed that the studies of law and of morals be reunited. His theory was a politically committed one, formulated during the civil rights, antiwar, and antipoverty political movements of the 1960s and early 1970s. Because it rejected any sharp distinction between deciding what the law was and what it ought to be, it suggested a greater importance than the positivists contemplated for “Judge and Company.” From the concrete issues Dworkin addressed and the results he advocated, it was clear that the judges he had in mind were the liberal majority on Earl Warren’s Supreme Court, and their company was made up of those lawyers and legal commentators who saw litigation, particularly constitutional litigation, as the most promising avenue of social reform.

To fortify judges and lawyers against both politicians beset by pressures from constituents and bureaucrats armed with cost-benefit studies, Dworkin centered legal and political thought on an idea that Bentham had condemned as “nonsense on stilts,” but that had nevertheless retained much force in common thought and speech—the “old idea of individual human rights.” For Dworkin, rights were valid claims that could both guide judicial decision and restrain the pursuit of the majority interest in politics. Thus conceived, rights breached the Benthamite wall separating law from political morality, and challenged the claim of utility to be the sole criterion of value in politics.

Though Dworkin connected legal with moral and political rights, he did not treat them as identical. He saw the principles of political morality as a kind of “law behind law,” whose “background rights”—for example, the right of equal access to material resources—constituted the just claims of individuals against society generally. These were to be distinguished from “institutional rights,” valid individual claims against particular social institutions. Legal rights were those institutional rights enforceable in the courts—for example, the right of a person meeting statutory eligibility requirements to a specified amount of welfare benefits. For Dworkin, the system of legal rights was thus much more specific than the system of background or moral rights.

Two natural questions about Dworkin’s theory of rights arise from the traditions of legal and political philosophy. The first is a question of hierarchy: When principles of political morality clash with rules of positive law, which determines ultimate legal rights? Viewed ambitiously, political morality might have overriding force, as in the natural law maxim “an unjust law is no law at all.” More modestly, the system of political rights might merely supplement positive law, deciding only those legal issues that statutes and other enactments leave in dispute.

The second question involves the source, and ultimately the scope, of political morality. Natural law theorists claim to base political morality on essential aspects of human nature or on universal moral truths, so that its principles are applicable everywhere and always. Less ambitious theorists argue that the background rights of political morality are historical in character, derived from the practices and ideals of a particular society, and hence applicable only locally, and only as long as those practices and ideals hold within that society.

Dworkin has not always been entirely clear in his answers to these questions about the hierarchical status and scope of the principles of political morality. He has sometimes resisted the choices they seem to pose, while some passages from his work suggest he accepts one or the other of the standard answers. The obscurities in his position may have resulted from the episodic development of his theory in a series of essays, in which he did not always make it clear when he was revising his earlier ideas.2 Now in Law’s Empire Dworkin offers a comprehensive statement of his position, which includes answers to the questions of hierarchy and of scope that, though complex, are no longer ambiguous.

2.

On the question of hierarchy, Dworkin rejects (as he has before) the natural law maxim, “an unjust law is no law at all.” The law of the United States validly but unjustly provided for slavery before 1865, and the law of South Africa validly but unjustly provides for apartheid today. Judges and citizens within those legal systems as well as critics viewing them from outside can without contradiction find those institutions both lawful and unjustly violating of background rights.

This does not undermine Dworkin’s well-known description of rights as “trumps”—claims that override other considerations in cases of conflict. He does not conceive of background rights as competing directly with positive law in the judicial mind; rather they come into play as trumps when they override the majority interest within the process of lawmaking. For example, when harsh measures to suppress crime are supported by an aroused public opinion, a legislator might argue against them, on the ground that they violate suspects’ rights. Such an argument presupposes that rights trump the majority will as a matter of political morality. But if the legislator’s argument proves unpersuasive and the harsh measures are enacted, he is in no way logically committed to denying that they have the force of law. Background rights can override legislative enactments within the law itself, but whether they do so is a question to be answered not by general legal theory, but by interpreting the legal system in question. American law, for example, gives some background rights overriding legal force through their being incorporated in a judicially enforceable constitution. English law gives them no such force.

If Dworkin does not think background rights generally have overriding force, do they then simply work as tie breakers, determining legal outcomes when positive law is unclear? He has sometimes suggested this, sketching a rough scheme of decision for judges under which, in evaluating a legal rationale proposed as decisive in a case, they should first consider how the rationale “fits” with formal legal data—statutes, regulations, precedent judicial decisions—and turn to its political “value” only where two or more conflicting rationales both pass the test of adequate fit.

This two-step formula closely resembles the Benthamite positivist account of adjudication. According to that account, a clear existing rule applicable to a dispute is decisive. But in a case that does not fall under a single existing rule, the judge must fill the resulting legal “gap” by means of an independent value judgment, formulating a new rule in legislative fashion.

In Law’s Empire, Dworkin makes it clear that he rejects all such two-step accounts of adjudication. He argues that the supposed first step in the process—the attempt to apply positive law independent of considerations of political value—never in itself decides even the easiest case, because adjudication is impossible apart from moral and political presupposition. Surprisingly, he here shares common ground with such skeptics about the functions of Judge and Company as the Legal Realists who were centered at Yale and Columbia law schools in the 1930s, and the Critical Legal Studies movement, which has spread from its origins at the Harvard Law School to gain much influence in recent years.

He argues that the account of adjudication given by these skeptics (he calls it “pragmatism”) is decisively superior to the positivist two-step analysis with its easy “legal” and hard “political” cases. He agrees with the skeptics that adjudication is in every case thoroughly political, though, for reasons I will come to later, he does not follow them to their skeptical conclusion, which is that there is therefore no distinction between the “government of laws” and the entirely political “government of men.”

Dworkin views as illusory the positivist conception of the “easy case,” settled mechanically by a formal law that is independent of all contestable political assumptions. He does not deny that at any given time a great many questions of law are clearly settled, so that no competent lawyer would think those questions worth litigating. But what makes these cases easy is not positive law operating apart from political morality; it is rather the temporary coincidence of formal law and shared moral beliefs. The point can be seen most clearly when one examines occasions on which the law changes without formal amendment.

Between 1910 and 1930, for example, any competent lawyer would have said that the constitutionality of Jim Crow laws was well settled under the doctrine of “separate but equal.” Neither the text nor the legislative history of the equal protection clause of the Fourteenth Amendment was seen to condemn segregation, and the leading Supreme Court precedent, Plessy v. Ferguson, clearly endorsed it. A challenge to segregation laws would be an “easy case” for a judge to reject. But by 1950, the constitutional law on the question had become unsettled. A number of important decisions had found actual segregated institutions “unequal” under the prevailing doctrine. Respected legal scholars had reviewed and found “inconclusive” the evidence on the intent of the framers of the Fourteenth Amendment to exempt segregation from their general prohibition of racially discriminatory laws. Entangled with these developments were changes in the moral and political views of influential lawyers on issues of racial justice. Brown v. Board of Education thus was a “hard case.”

  1. 1

    Taking Rights Seriously (Harvard University Press, 1977).

  2. 2

    Most of Dworkin’s essays published since 1977 are collected in A Matter of Principle (Harvard University Press, 1985). These essays anticipate some but by no means all of the new views he expresses in Law’s Empire.

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