Dworkin's Unbounded Legalism

For a number of reasons, libertarians should be interested in the legal philosophy of Ronald Dworkin.¹ Of course, he is a leftist who seeks to implement the American "liberal" agenda through judicial activity. But it is not often realized that the legal doctrine that underlies this is not much different from classical liberalism. He believes in rights as the pre-eminent doctrine that should constrain all political action. These are individual rights, not group rights (though he is not entirely consistent on this), and he is normally anxious to protect these against the claims of the communitarians.

Dworkin’s faith in legal processes has brought scorn from Critical Legal Studies writers whose juvenile Marxism drives them to condemn Western law as a subtle mechanism by which the bourgeois property owners oppress the benighted proletariat. His defense of an almost unlimited free speech has drawn the ire of the feminists who say that the open display of sexuality is equivalent to physical offenses against women.² Most important is his use of the law and the Constitution to counter that majoritarianism which is sometimes a refuge for American conservatives.

However, there are great differences between Dworkin and classical liberals. These relate to his activist social agenda, to be pursued by the courts; his overt disrespect for economic rights; and his refusal to use the law to protect private property. But many of the similarities and differences between Dworkin and classical liberalism go back to fundamental jurisprudence.

At the theoretical level, there is some similarity between Dworkin and F. A. Hayek on the meaning of law and its role in a free society.³ Both oppose legal positivism and propound the autonomy of law. That is, they believe that legal processes have a validity independent of, and untainted by, politics.

Legal positivism separates law from morality, and the meaning of law is independent of any ethical purposes a purported legal rule might have. Its validity depends exclusively on the objective procedures that validate it. Under classical English jurisprudence, genuine law was a product of an all-powerful sovereign, that is, any institution that can secure obedience. In its most sophisticated form, however, in the jurisprudence of H.L.A. Hart, valid law is distinguished by its pedigree: did it emanate from an authoritative set of rules accepted by a community?⁴ The final source of authority is the "rule of recognition." Thus a legal order that does not have a sovereign, such as America’s, could still be incorporated into the model of rules, again with no reference to morality. The rule(s) of recognition here comprises the Constitution and appropriate Supreme Court decisions.

However, Dworkin makes a distinction between rules and principles. Principles, unlike rules, do not apply all the time, but are called on by judges to settle hard cases. They are not expressed formally, but are immanent in the morality of a community. Nevertheless, they are intrinsically a part of its law. To a positivist like Hart, when the rules run out or are indecisive, judges have to innovate and invent new rules. Of course, there is a danger of retroactive legislation here, and positivists recommend that judges implement what they anticipate the legislature’s likely response to a particular conundrum will be, or make their decisions consistent with current values. But, nevertheless, such an invented rule is not strictly speaking law until it has been incorporated into the system by statute or case law. In other words, judges have strong discretion.

For Dworkin, this is not a feature of judicial activity, which is always constrained by precedent, by the necessity to interpret principles correctly, and by the need to make decisions "fit" the prevailing legal structure. As he says, "I insist that the process, even in hard cases, can sensibly be said to be aimed at discovering, rather than inventing, the rights of the persons concerned."⁵ Hayek could not have put it better himself.

Allied to this is Dworkin’s important distinction between principles and policy. Legal principles are primarily individual rights, which the judiciary interprets, while policies have a collective purpose that the legislature promotes. Outside of rights, legislatures are pretty much unlimited in Dworkin’s world, though not in Hayek’s, where economic freedom and property rights are part of the protected domain of principle.

Principles and Adjudication

Dworkin’s jurisprudence is mainly about adjudication, especially in common-law systems, which assign a significant role for judges. He thinks there is always a right answer to a legal case and it is the duty of judges to find it. They draw on principles to settle hard cases. In an early New York state case (Riggs v. Palmer, 1889), about a murderer’s claim to inherit from his victim, all the formal rules seem to imply that he should, outrageous though that would have been. But the court invoked the principle that "no man should profit from his own wrongs" and denied the inheritance. This was never stated as a formal rule, and it was conceded that it need not always apply.

This looks like an uncontroversial use of principles, but Dworkin uses the argument to claim that a number of highly disputatious cases in American law may be settled by principle, even if the reading of the law in terms of rules might well preclude this. It is here that Dworkin’s principle of equality, or the "right to equal concern and respect," has been used implicitly by the courts to implement the "liberal" agenda. Indeed, in the cases about which Dworkin has been so eloquent, it is implausible to imagine that the judiciary has merely declared law. Still, it is much easier for Dworkinian jurisprudence to flourish in the United States because the Constitution is loosely worded in parts and the Supreme Court has extensive review powers.

The right to equal concern and respect has been implicitly used to validate a whole string of cases about affirmative action. It is true that equality is explicitly recognized in the Constitution and in the Civil Rights Act (1964). Classical liberalism, of course, recognizes equality, but it does not validate affirmative action, busing, excessive rights for criminal suspects, and the rest of the litany of American "liberalism." American law is supposed to have precluded jobs being allocated, or university admissions decided, by quotas based on race, yet that has effectively happened anyway. Ironically, white males, who are the victims of affirmative action, have started to use both the Constitution and the Civil Rights Act in litigation.

From a libertarian perspective, the question is, why is there antidiscrimination law anyway? It is well known in economic theory that the real losers are those who would arbitrarily deprive qualified people of jobs. The market is a self-correcting device. There is a case for nondiscrimination, though not affirmative action and quotas, in public-sector employment precisely because competitive processes are less a feature of the labor market there.

Dworkin is by no means opposed to the market, but argues that it cannot be relied on to protect (his conception of) rights. To Dworkin’s regret, there has been some progress in the elimination of affirmative action in the public sector. In Richmond v. J. A. Croson (1989), the Supreme Court forbade contracts that explicitly favored minority groups, and although there have been some setbacks, the problem is now less severe. Ironically, and contra Dworkin’s market skepticism, most affirmative action probably occurs in the private sector. Libertarians are naturally in favor of individual rights, not group claims, and it is the latter that Dworkin seems to support, despite the alleged individualism of his jurisprudence, in his defense of affirmative action. But if there were no antidiscrimination laws, a benign approach could flourish and there would be few potentially controversial cases.

Economic Liberty

Dworkin’s objection to constitutional protection for economic liberty illustrates his differences from classical liberalism. He does not believe in a general right to liberty, from which economic liberty is derived, because he mistakenly associates it with license. Since license is unsustainable, there have to be laws that can be evaluated through particular examples. He does not believe that economic regulation violates the right to equal concern and respect, therefore any appraisal of regulation must be conducted entirely on utilitarian grounds. Of course, he can never find reasons for opposing minimum-wage laws, the taking of property, or the regulation of trade. He does not allow the Supreme Court to apply any rational test for the constitutionality of these laws.

The argument goes back to the famous case of Lochner v. New York (1905), in which the Court struck down a New York statute that would have limited the hours per week bakers could work. It is claimed that the unlimited right to contract was invented by an activist Court through an adventurous reading of the Fourteenth Amendment, but, regrettably, since Lochner was overturned, the government has had an almost completely free hand in economic regulation. That government power is not in the Constitution or the American legal tradition. In United States v. Carolene Products Co. (1938), a clear but erroneous distinction was drawn between civil and economic liberty and the Court said it would protect the former but not the latter.

The important point about cases like Lochner is jurisprudential, not economic, though there is much to be said for the view that restrictions on labor contracts are detrimental to efficiency and for the historical argument that the New York statute was passed at the behest of established bakers fearing competition from immigrants. Lochner involved the Court in "substantive due process," extending the exact wording of the Constitution. But "liberals" condemn the case (Dworkin refers to the "stench" of Lochner), while admiring other cases that also use "substantive due process" (such as Roe v. Wade [1973]).

Despite the superficial similarity between classical liberals and Dworkin in terms of pure jurisprudence and their mutual respect for the common law, they really are worlds apart. The former see a modest role for the judiciary. It should act only to preserve an ongoing, spontaneous system. For Dworkin, the courts should bring about a preconceived end-state, one defined in terms of equality.

Furthermore, classical liberalism has a much broader conception of liberty under law; it should protect property and advance free economic competition, as well as the familiar civil liberties. In this context the right to contract is as legitimate an inference from traditional law and constitutionalism as the right to free speech.

But Dworkin abandons principle and just picks and chooses the particular freedoms he personally favors: he promotes a highly contentious social agenda under the guise of law. The now-dominant role that judges have should make libertarians reconsider the much-heralded virtues of the common law. And there is something to be said for positivism: when societies are divided, the integrity of law is better preserved if morality is kept out-and the state as well.

Contributing editor Norman Barry is professor of social and political theory at the University of Buckingham in the U.K. He is author of An Introduction to Modern Political Theory (St. Martin’s Press).

Notes

1. 1. Dworkin is a prolific writer. His major works are Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1978); A Matter of Principle (Cambridge, Mass.: Harvard University Press, 1985); Law’s Empire (London: Fontana, 1986); and Freedom’s Law (Cambridge, Mass.: Harvard University Press, 1996). His overt egalitarianism is found in Sovereign Virtue (Cambridge, Mass.: Harvard University Press, 2000).
2. 2. See "MacKinnon’s Words," in Dworkin, Freedom’s Law, pp. 227-43.
3. 3. See F.A. Hayek, Law, Legislation, and Liberty, vol. 1, Rules and Order (London: Routledge and Kegan Paul, 1976).
4. 4. H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961).
5. 5. Dworkin, Taking Rights Seriously, p. 280.