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1
H. L. A. Hart, Essays in Jurisprudence and Philosophy (Oxford: Clarendon, 1983), 132, 138.
2
Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1977), 81“88.
3 4
Ibid., 118“21. Ibid., 22.
Ronald Dworkin 279
However, inasmuch as Dworkin attempts to use what is undeniably a
descriptively successful theory of adjudication as a prescriptive theory of
how judges should act or as a jurisprudential theory of what law is, it
becomes clear that he is saying something quite different. An illustrative
example is his comment on the decisions in the Fugitive Slave cases by
Justices Story and Shaw. The Fugitive Slave Acts enacted by Congress
made it obligatory to return slaves who had escaped to free states to their
masters. And these statutes conformed to Article Four of the Consti-
tution, which provides that the escaped slave “shall not, in consequence of
any law or regulation of the latter, be discharged from that service, ˜but
shall be delivered up on Claim of the Party to whom such service or
labour may be due.™” Because the law seemed to them to be perfectly
clear, the judges ordered the slaves to be returned to their masters even
though they themselves were strongly opposed to slavery.5
Dworkin accuses the justices of a “failure in jurisprudence.” He argues
that if they had acted in terms of his theory, they would have found in
the law implicit principles that yielded a clear decision in favor of the
slaves. “The general structure of the American Constitution,” he says,
“presupposed a conception of individual freedom antagonistic to slavery,
a conception of procedural justice that condemned the procedures estab-
lished by the Fugitive Slave Acts, and a conception of federalism incon-
sistent with the idea that the State of Massachusetts had no power to
supervise the capture of men and women within its territory. These
principles were not simply the personal morality of a few judges, which
they set aside in the interests of objectivity. They were rather, on this
theory of what law is, more central to the law than were the particular and
transitory policies of the slavery compromise.”6 According to Dworkin,
these are the principles that the judges should have enforced in order to
discharge their duty to apply the law.
In addition, Dworkin argues that “the law was not already settled
against the Slaves, though the judges said it was.” Of course, what is
“settled” in the law is as disputable as everything else, but it is difficult to
imagine how the law could be more clearly settled than it was in these
cases. In denying this finality, Dworkin is permitting both himself and
the judges a remarkable freedom to decide what is “settled law.” He
claims a similar freedom in his interpretation of the “principles,” which
he takes to be the proper ground for the decision in the Fugitive Slave
cases since it is by no means clear that his view of the general principles of

5
Ronald Dworkin, “The Law of the Slave-Catchers,” review of Justice Accused, by Robert
M. Cover, Times Literary Supplement, 5 December 1975, 1437.
6
Ibid.
280 The idea of law repudiated

justice and fairness implicit in “the general structure of the American
Constitution” is the only possible one.7 Whereas Dworkin provides no
arguments to support his view, simply assuming the modern rejection of
intolerance and inequality as self-evident, it would be entirely reasonable,
as Hart and others have pointed out, to extract from the same principles
quite the opposite conclusion, thereby upholding the decisions against the
slaves. Indeed, Dworkin himself admits this possibility, and argues in
return that because decisions based on liberal principles will more likely
preserve individual liberty, liberals will largely agree with his position.8
That such diverse interpretations should be possible is hardly surprising
since, as philosophers have pointed out since ancient times, any general
proposition may yield a variety of particular conclusions and the more
general, the greater the variety. Dworkin™s broad and vague “principles”
are even more vulnerable than ordinary legal rules to the indeterminacy
involved in moving from general to particular propositions. In effect, by
allowing, indeed requiring, judges to rest decisions on “principles” and a
“political theory” that they have constructed for themselves, Dworkin™s
theory allows the sort of abuses that Bentham censured when he argued
against fictions that permitted the judge to impose his own views under
the pretence that he is finding what the law really is. Dworkin himself
admits that different judges might construct different theories from the
same materials and that it is impossible to demonstrate that any one is
indisputably correct. Nevertheless, he insists that truly moral judges will
not feel bound by formal rules.9
Dworkin™s ultimate justification for not relying solely upon formal legal
rules is an appeal to individual “rights.” Making use of the term “rights”
in its strongest sense, he argues that they are indisputable truths by which
the law might be judged. He supports his strong understanding of rights
by arguing that any government constructed to ensure individual rights
must accept rights as not only outside and anterior to the law, but also
possibly antagonistic to the law by providing grounds for a claim to new
laws or even revolutions. An appeal to “rights” may also justify disobey-
ing the law when it “wrongly invades his rights against the Government.”
For example, if we recognize the right to free speech, Dworkin says, it
follows that a man has “a moral right to break any law that the Govern-
ment, by virtue of his right, had no right to adopt.”10 He insists that the
right to disobey the law is not separate from but intrinsic to all the rights

7
Ibid.
8
Ronald Dworkin and Contemporary Jurisprudence, ed. Marshall Cohen (Totowa, NJ:
Rowman and Allanheld, 1984), 274“75.
9 10
Ibid., 112“17. Ibid., 192.
Ronald Dworkin 281
against the government and cannot be denied in principle without denying
those rights. Thus, if a government accepts principles of individual liberty,
the denial of any particular fundamental right must come at the great cost
of rejecting the very foundation upon which that government is built.
To see how Dworkin arrives at his “rights theory,” the first point to
notice is how he uses the idea of a “rule.” He defines a rule as a propos-
ition, which produces indisputable decisions, as opposed to a “principle,”
which states moral standards open to a number of different interpret-
ations. This might appear to be, as Dworkin suggests, merely a clarifica-
tion of accepted ideas about the law because judges and jurists do speak of
“principles” and “rules.” But they use the two words to distinguish levels of
abstraction in the law. Although rules are less abstract than principles, they
are propositions of the same logical character, both being indeterminate in
relation to any given case. However, stating that “rules are applicable in an
all-or-nothing fashion,”11 Dworkin treats rules as if they were identical
with orders, which command a particular performance from a particular
person. As a result of this equivocation, he essentially ignores all that
his predecessors have had to say about the indeterminacy of rules (as
opposed to orders), a notion upon which the traditional understanding of
law is based. Furthermore, he writes as if his usage were entirely uncon-
troversial and bases his entire edifice on this extremely narrow under-
standing of a rule. Otherwise, he could not attach so much importance to
his distinction between “hard” and “easy” cases. For if all rules are
necessarily indeterminate (because they are not orders), no cases can be
“easy” in Dworkin™s sense; “hard” cases are then merely more severely
indeterminate than so-called “easy” ones and do not have to be decided in
a radically different manner.
Secondly, Dworkin™s argument rests on a serious ambiguity about the
status of “principles” “ he describes them as both within and outside
the law. They are within the law when he claims to be defending a strict
separation between adjudication and legislation, as in his distinction
between policies and principles. But they are outside the law when he
argues that in “hard” cases, since the judge cannot rely on the rules and
statutes of the law, he must rely on the same moral standards as are used
in any political argument. Moreover, by equating “principles” with moral
standards, he claims to be restoring the union between law and morality
destroyed by positivism. What matters most, however, is that this equa-
tion enables him to conclude that it is impossible for legal decisions to be
completely distinct from political decisions because the same “moral”


11
Ibid., 24.
282 The idea of law repudiated

standards, i.e., “principles,” have to be invoked in both political and legal
decisions. Dworkin thus leaps from an apparently technical discussion of
“hard” cases to the conclusion that it is normal and desirable for legal
decisions to be political decisions.
Thirdly, this leap is further obfuscated by Dworkin™s discussion of
judicial “discretion.”12 He uses the idea of “authorization” as eccentric-
ally as he does that of “rules.” For a judge is not acting in an authorized
fashion when he selects among the many, and probably conflicting, moral
notions prevailing in the community. Such a judge is acting as a legislator
without having been authorized to do so. Dworkin is right in saying that
judges of that sort are making political, not legal, judgments. But in
approving of such judges Dworkin is endorsing their usurpation of power
which they have not been authorized to exercise.
Dworkin presents this view of judicial discretion as essential to the
defense of an individual™s “right against the State.” His assertions to this
effect might suggest that he is a defender of liberty. In fact, as Dworkin
himself says bluntly, he is out to defend equality, which, he maintains,
cannot be reconciled with liberty. “The idea of a right to liberty is a
misconceived concept that does dis-service to political thought,” Dworkin
declares. The “idea of a right to liberty” creates “a false sense of a
necessary conflict between liberty and other values when social regula-
tion, like the busing program, is proposed.” The law ought to be based,
Dworkin says, on the principle of “equal concern and respect,”13 and he
regards the requirements of this principle as so self-evident that he sees no
need to defend it. Furthermore, by arguing that “it should be plain how
this theory of rights might be used to support the idea . . . that we have
distinct rights to certain liberties like the liberty of free expression and of
free choice in personal and sexual relations,”14 he uses this principle as
indubitable proof of other much more controversial moral values. Thus,
when he advocates reverse discrimination and opposes capital punish-
ment as well as legislation against homosexuality and pornography,
he describes his convictions on these issues as necessarily true and
indisputable.
Not surprisingly, Dworkin™s unabashed bow to postmodernism and
political jurisprudence throughout Taking Rights Seriously has drawn
heavy criticism from traditional conservatives within both the positivist
and natural law camps. However, by the end of his account of his new
“liberal” theory of law Dworkin also succeeds in alienating many of the
postmodernist liberals whose support he had originally gained. He asserts


12 13 14
Ibid., 33. Ibid., 193, 271“73. Ibid., 277.
Ronald Dworkin 283
that skeptics who say that it is impossible to claim that there is any one
right answer in the “hard cases” Dworkin so frequently mentions have yet
to put forth an objection that passes the necessary muster. To those who
flatly deny the possibility of judicial objectivity, Dworkin replies: “But
why not? It may be that the supposition that one side may be right and the
other wrong is cemented into our habits or thought at a level so deep that
we cannot coherently deny that supposition, no matter how skeptical or
hard-headed we wish to be in such matters. . . The ˜myth™ that there is one
right answer in a hard case is both recalcitrant and successful. Its recalci-
trance and success count as arguments that it is no myth.”15 With these
words, Dworkin ends his account of his new “liberal” theory of law in
Taking Rights Seriously.
Just how thoroughly Dworkin revises the idea of law becomes more
obvious in A Matter of Principle, where his central thesis is that it is
impossible to distinguish what the law is from what it should be. Whereas
in the earlier book, he had emphasized that judges neither should
nor need to make law because they can find the “right answer” even for
hard cases in existing law, here he argues that whenever judges decide a
case, they necessarily make a “political decision” about what the law
should be.
This conclusion is supported by Dworkin™s contention that all interpret-
ation rests on “normative beliefs.” And he explains their significance by an
excursion into literary criticism, which starts with the question: Why do
critics disagree about what is the best method for discovering the meaning
of a literary text? In answer, Dworkin produces his “aesthetic hypothesis,”
which claims that interpretation consists of reading a text so as to reveal it
“as the best work of art.” This means that interpretation is determined by
a critic™s “normative” beliefs. Dworkin then goes on to argue that since
normative beliefs shape interpretation, we cannot separate interpreting a
work of art from “evaluating” it. We are obliged to recognize that “There
is no longer a flat distinction between interpretation, conceived as dis-
covering the real meaning of a work of art, and criticism, conceived as
evaluating its success or importance.”16 Therefore, different interpret-
ations of a text, whether literary or legal, are due to different views about
what is desirable and not about the meaning of the text.
Dworkin takes trouble to deny that he is putting the objectivity of
interpretation in doubt. That interpretation has normative presuppos-
itions, he says, obliges us only to recognize that any dissent from a critic™s

15
Ibid., 290.
16
Ronald Dworkin, A Matter of Principle (Cambridge, MA: Harvard University Press,
1985), 149“53.
284 The idea of law repudiated

explanation of the meaning of a work of art must be due to a different
evaluation of its artistic quality. Anyone who pretends to keep his inter-
pretation distinct from evaluation must, according to Dworkin, be
equating the meaning of a work of art with the author™s intention. And
against the possibility of discerning an author™s intention, Dworkin
draws on arguments that have long been familiar in literary criticism.
But he goes further to deny any complete distinction between author and
critic: Merely a difference of emphasis separates them because “The artist
can create nothing without interpreting as he creates,” and the critic
“creates as he interprets.”17
Dworkin insists on this analogy in order to establish that the judge
cannot interpret law without making “a political decision” similar to that
of a legislator. Adjudication is likened to producing a novel by a chain of
authors. Just as each author has to construct a unifying conception of
what his predecessors have written, so the judge has to determine what
“the point or theme of the practice so far, taken as a whole, really is.”18
Whereas in Taking Rights Seriously, Dworkin had argued that judges
have to see the law as a whole, here he insists that any interpretation of
a legal practice must show “its point or value” in “political terms.” A
judicial decision must show the value of a legal practice in “political
terms” by “demonstrating the best principle or policy it can be taken to
serve.”19 And so Dworkin assures us that just as our “commitment to
feminism” or our “dissatisfaction with the rise of the New Right” does
and should count “in deciding, among particular interpretations of the
works, which is the best interpretation,” so must political convictions
determine our interpretation of law.20 Whereas one judge may discover
in accident law only “an attempt to reenforce conventional morality
of fault and responsibility,” a judge who believes that the main goal of
law is economic “will see in past accident decisions some strategy for
reducing the economic costs of accidents over all.” Each chooses the
interpretation of accident law which he determines as “a sounder principle
of justice.” And although “law is not a matter of personal or partisan
politics,” Dworkin argues that “lawyers cannot avoid politics in the broad
sense of political theory.”21 Thus, whatever the judge does, he cannot be
neutral; the interpretation of law is, at least in Dworkin™s broad sense of
the term, “essentially political.”22
In law as in literature, a judge who attempts to keep his decisions free of
his political convictions must be trying to discern the “intentions” of


17 18 19
Ibid., 158. Ibid., 159. Ibid., 160.
20 21 22
Ibid., 165. Ibid. Ibid., 161“62.
Ronald Dworkin 285
lawmakers, that is to say, assuming that the intention of a law is “some
complex psychological fact locked in history waiting to be winkled out
from old pamphlets and letters and proceedings.”23 In reality, however,
the intention of a law is not something “waiting to be discovered, even in
principle,” but something “waiting to be invented.” Those who pretend to
be respectful of the text of the Constitution by engaging in “semantic
questions” (which is Dworkin™s description of arguing from the words of
the Constitution) are really displaying their indifference to the text be-
cause they are not concerned with the point of having a Constitution or
why the Constitution is the fundamental law. They suppose “ wrongly “
that the Constitution is law because of “a generally accepted theory of the
process through which legislation becomes law “ in virtue of which the
Constitution became law.” According to Dworkin, the Constitution is law
because the people accept the principles of political morality that it em-
bodies. The judge cannot discover those principles by “finding the law just
˜there™ in history.” He has to construct “a political theory showing why the
Constitution should be treated as law.”24 Thus, Dworkin concludes that
the judge is obliged to invent an intention for the Constitution.
As an example of the necessity for such invention, Dworkin offers the
clause of the Fourteenth Amendment, which guarantees equal treatment
without regard to race in matters touching people™s fundamental interests.
It may give rise, he says, to two opposed interpretations, depending on
what the judge takes to be a “matter of fundamental interest.” If he
regards education as a matter of fundamental interest, he will find racially
segregated schools unconstitutional; if not, he will find them to be lawful.
He cannot escape choosing between these descriptions by trying to dis-
cover the “intention” of the clause; and if he tries to rely on the views of
earlier judges, he is only treating them as legislators. The judge is there-
fore obliged to decide “that one rather than the other description is more
appropriate in virtue of the best theory of representative democracy or on
some other openly political grounds.”25
That is why all the opinions about the equal protection clause in the
Constitution are either “distinctly liberal or radical or conservative.” And
this proves that “There can be no useful interpretation . . . which is
independent of some theory about what political equality is and how far
equality is required by justice.” Conservative lawyers who pretend to be
neutral by using “an author™s intentions style of interpreting this clause”
are really trying to hide the role played by their own political convictions
in their “choice of interpretive style.”26

23 24
Ibid., 39. Ibid., 14, 36“39, 162.
25 26
Ibid., 163“64. Ibid., 164“65.
286 The idea of law repudiated

Since deciding cases is essentially a matter of moral judgment, what-
ever indeterminacy there appears to be in the law must be due to an
“indeterminacy or incommensurability in moral theory.” Whether there
are “no-right-answer cases” is not then “an ordinary empirical question.”
Anyone who denies that there is a right answer must be defending “some
idea of skepticism, or of indeterminacy in moral theory,” a position that
Dworkin rejects as unproven.27
Whereas the “one right answer thesis” emphasized that judges can
find a right answer in the law, the new theory of interpretation says
explicitly that judges cannot avoid deciding cases in accordance with
their idea of what is right. And as Dworkin accordingly insists through-
out, this requires that judges must make “political decisions.” He sup-
ports this conclusion by arguing that interpretation rests on “normative
beliefs” and by equating normative beliefs with every sort of presuppos-
ition, theoretical and practical, intellectual and moral. However, inter-
pretation is generally distinguished from evaluation by the different kinds
of presuppositions that each entails. By equating “normative beliefs” with
every sort of presupposition, Dworkin makes it impossible to distinguish
interpretation from evaluation and thus converts interpretation into
a synonym for evaluation. But this equivocation no more supports
Dworkin™s conclusion “ that what the law is cannot be distinguished from
what it ought to be “ than the fact that atomic fusion postulates an
elaborate scientific theory that makes it impossible to explain what atomic
fusion is without advocating that atom bombs be made and dropped. All
that the new theory of interpretation really establishes is that Dworkin
denies the logical distinction between “is” and “ought.”
What Dworkin™s denial of the is/ought distinction implies in judicial
practice is demonstrated in his discussion of the Weber case. The issue
was whether the Civil Rights Act made it unlawful for an employer, the
Kaiser Aluminum Co., to use a racial quota system in order to increase
the number of black workers in skilled jobs. While the majority of the
Supreme Court held that the statute permitted affirmative action plans of
this sort, there were dissents from Justices Rehnquist and Burger, which
Dworkin criticizes.
He describes Rehnquist™s argument “ that “the meaning of the words of
the act as they stand,” clearly excludes the Kaiser plan “ as an appeal to
“legislative intent” that exploits an ambiguity in that notion. To explain
that ambiguity, Dworkin introduces a distinction between “institutional-
ized intention” and “collective understanding.” The former exists where
there is a preamble stating the purpose of the act, and though he argues

27
Ibid., 144“45.
Ronald Dworkin 287
elsewhere that such words are bound to be as ambiguous as any other,
here Dworkin says that they could be used to discover the intent of the
statute. But as there is no such preamble to the Civil Rights Acts,
Rehnquist must mean, Dworkin concludes, “collective understanding.”
Since there cannot be any “pertinent collective understanding” where
there is no “institutionalized intention,” there are only two competing
justifications for the Act. In basing his dissent on the wording of the
statute, Rehnquist made the mistake of assuming that he could choose
between competing justifications without making a political judgment.28
Justice Burger™s argument is dismissed more brusquely because Burger
said that, had he been a Congressman, he would have voted to permit
plans like Kaiser™s. But as in fact Congress had made such affirmative
action illegal in the Civil Rights Act, he found that the Kaiser Plan
infringed the Civil Rights Act. Dworkin considers Justice Burger™s inter-
pretation of the Civil Rights Act wholly irrational because Burger con-
fessed that he himself approved of affirmative action. Here Dworkin
repeats his earlier comment on the impropriety of the judges in the
Fugitive Slave cases who, though known to oppose slavery, decided
contrary to their own moral convictions.
By treating Rehnquist™s attention to what the words of the statute
meant as an attempt to evade an inescapable political judgment, and by
dismissing as irrational Burger™s distinction between his own preferences
and what the law as it stood actually required, Dworkin disposes without
argument of any attempts to justify decisions using rationale based on the
intent of the legislature.29
Likewise, it is as impossible for the citizen as it is for the judge to
distinguish what the law is from what it ought to be. Dworkin restricts
civil disobedience only by stipulating that it should be based on principles
or rights and not on judgments of policy or collective goals, and he
confines his approval to “integrity-based” and “ justice-based” civil dis-
obedience. He opposes prosecuting the transgressions that they entail

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