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How Judges Should Judge

Justice in Robes

by Ronald Dworkin
Belknap Press/Harvard University Press, 308 pp., $35.00

1.

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.

2.

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 we call legislatures. The best-known defender of this brand of legal pragmatism is—again—Richard Posner, who has established himself over the years as Dworkin’s most vociferous opponent.4

According to Dworkin, pragmatists like Posner have a very tenuous grip on the rule of law. Posner will say that if it is worth deferring to the antiquated clauses of the Constitution or to some well-established statutory or doctrinal rule, it is only because a modicum of value can be gained from not disappointing the expectations of those who are more invested than a pragmatist is in the meaning of these materials.5 For Posner, there is nothing more to the rule of law than that. Dworkin, on the other hand, insists that it is the law itself, not our own self-assurance, that requires us to incorporate value judgments into legal reasoning. And he insists, too, that the law requires us to incorporate them in a structured and disciplined way.

Consider the phrase “cruel and unusual punishment” in the Eighth Amendment. Dworkin repeats in Justice in Robes an argument he has made for many years now in favor of a “moral reading” of provisions like this. He rejects the “originalist” view that “cruel” means “what the Framers thought was cruel in 1791.” The Framers were educated men; they knew that standards of cruelty changed over the generations. They did not seek to freeze their own judgments on this matter in the way they did, for example, when they wrote down in Article II of the Constitution that no one under thirty-five was mature enough to be president. There they used a numerical age instead of the value term “mature”; here they used the value term “cruel” instead of a list of punishments that were frowned on in the late eighteenth century. Dworkin is absolutely right—in a chapter criticizing the jurisprudence of Justice Antonin Scalia—to wonder about the consistency of an originalism that refuses to acknowledge historical facts like these.

But it is not necessary to get into this debate about the Eighth Amendment to make the more general point about value judgments. The law is overflowing with terms and doctrines that command the judge to make the best value judgment he can: “unreasonable restraint of trade,” “the best interests of the child,” and so on. As Dworkin says, “Citizens, lawyers, and officials deciding what these provisions require in practice must indeed reflect on some of the same issues that they would consider if they were concerned only to act morally.”

On the other hand, in coming to a judgment about what is unreasonable or what is in someone’s best interests, the judge is often constrained by the decisions of earlier generations of judges. An earlier court may have decided, for example, that judges must not adopt the position in custody cases that a mother’s care is necessarily in the best interests of the child (even if they personally believe that), but that they must consider in each case the rival claims of the particular mother and the particular father. If that obligation has been laid down as a binding precedent, then the judge may be precluded from making the value judgment that he would make if he were coming unencumbered to the case.

But even when he applies a precedent, the judge still has to make value judgments of his own. Suppose he faces a custody case involving the rival claims of a mother and a former stepfather (the child’s father is deceased and the mother is divorcing her second husband). Is he precluded from dismissing the stepfather’s case out of hand? If the judge takes the view that a mother’s care is obviously preferable to that of a stepparent, is he violating the precedent? All cases are similar in some respects and different in others. In the absence of statutory guidance, who is to say whether a peremptory decision for the mother in this case is relevantly like the sort of decision that the earlier precedent forbids? Judgments of relevant similarity are not made by some mysterious intuition of analogy: the judge has no choice but to figure out whether the new case is like the old case in some important respect and he has to meld that value judgment with a value judgment about the importance of adhering to precedent in the first place.

That last point is very important. One of the challenges of legal reasoning is determining when precedents should be followed and when it is appropriate to depart from them in order to allow the law to grow. In the recent Supreme Court decision in Hamdanv. Rumsfeld about military commissions at Guantánamo Bay, Justice Clarence Thomas, writing in dissent, lambasted the plurality for refusing to adopt a flexible “common law” approach to the question of whether “conspiracy” (unaccompanied by any overt criminal act) could be charged as an offense against the laws of war. On the other side, Justice John Paul Stevens was adamant that “an act does not become a crime without its foundations having been firmly established in precedent.”6 Whether you agree with this or not, the matter is clearly one that requires a value judgment—that is, a judgment about the value of caution and fair warning versus the value of flexibility in the development of a fraught and difficult area of the law.

I have used some simple examples of uncertainty about the application and binding force of a precedent. In real life, judges confront not single precedents but tangled masses of precedent. A case that Dworkin uses several times involves a class of plaintiffs suing a number of pharmaceutical companies, who over a long period manufactured a drug the plaintiffs took during pregnancy (to prevent miscarriage).7 The manufacturers do not deny that they continued manufacturing and advertising the drug after it became clear that it had carcinogenic side effects, but each company says that unless a particular plaintiff can actually prove that its batch of pills caused her cancer, she has no remedy against that particular company. Is this right? Or may a court do what the California courts did and award damages against the companies on the basis of their proportionate share of the market without proof of particular causality?

Dworkin does not think the “market-share” theory should be rejected out of hand as unprecedented. (After all, just about the whole of our law of negligence has grown up case by case in ways that extended or went beyond existing precedents.) Nor, however, does he think we should decide the matter, like Posner, simply on the basis of what would be best for society. The question, says Dworkin, is whether the new solution corresponds in a principled way with what we have done already in the law—when we insist, for example, that those who profit from some risky enterprise should be required to bear some of its costs. Whether this principle has standing in the law and whether the market-share theory can be described as a plausible application of it—these are matters of value judgment that are embedded in the dispute over the damage done by the drugs and they cannot be avoided by the judge when he approaches a case as tangled and tragic as this one.

3.

We sometimes talk about value judgments as though they were simply preferences. But there is nothing simple about the value judgments that are required of Dworkin’s judges. In easy cases, they may be uncontroversial; they may seem more like common sense than moral philosophy. But it is in hard cases—cases where the existing law is too meager (or too abundant) or where its precedents and texts are contested or ambiguous—that Dworkin’s blend of moral and legal philosophy really becomes important. That is where the judge has to get in touch with his inner Kant or his inner Rawls. “You cannot think about the correct answer to questions of law,” Dworkin writes, “unless you have thought through a vast over-arching theoretical system of complex principles….”

  1. 1

    All four books were published by Harvard University Press.

  2. 2

    Law’s Empire is the exception; it is a sustained monograph, not a collection of essays, and it presents Dworkin’s mature legal theory as a continuous argument.

  3. 3

    Bushv. Gore 531 U.S. 98 (2000). See Richard Posner, Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts (Princeton University Press, 2001).

  4. 4

    One of their most ferocious exchanges can be read in the pages of The New York Review, March 9 and April 27, 2000.

  5. 5

    See, e.g., Richard Posner, The Problematics of Moral and Legal Theory(Harvard University Press, 1999), pp. 240–242.

  6. 6

    Hamdanv. Rumsfeld, No. 05-184, decided by the U.S. Supreme Court June 29, 2006.

  7. 7

    Sindellv. Abbott Laboratories, 26 Cal.3d 588, 607 P.2d 924 (1980).

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