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because it is wrong to suppose that “if someone has broken the law, for
whatever reason and no matter how honourable his motives, he must
always be punished because the law is the law.”30 Whatever the law may
require, a person whose motives are superior should not be treated like an
ordinary criminal.
Dworkin™s chief argument for not punishing civil disobedience is that
even though the court has the last word, and we must generally obey its
decisions for “ practical reasons . . . we reserve the right to argue that the


28 29 30
Ibid., 320“30. Ibid. Ibid., 114“15.
288 The idea of law repudiated

law is not what they have said it is.” The person engaged in civil disobedi-
ence is doing the same thing as the Supreme Court does when it strikes
down legislation as unconstitutional “ preventing the majority from abus-
ing its power at the expense of the minority. The United States Consti-
tution sanctions such behavior, according to Dworkin, because it
recognizes “abstract political rights as legal rights.” To protect “abstract
political rights” is the purpose of efforts to override legislation and,
whether done by judges in the Supreme Court or by private citizens
engaged in civil disobedience, they are equally legitimate.31
Although Dworkin continues to deny that his judges are allowed to
make up the law wholesale and insists that they are constrained by the
political theory that they are obliged to construct,32 the nature of that
theory remains elusive. Is there only one political theory or many? Is a
political theory an interpretation of the law as a whole that seeks to
establish the most consistent line or argument in past statutes and deci-
sions, or is it a construction of the law designed to satisfy certain moral
requirements, regardless of its fit with the “legal materials?” If there can
be more than one political theory, are they all equally objective and
desirable? If not, what is the criterion for choosing the best one, and what
renders that criterion acceptable? If the theory is designed to satisfy
certain moral requirements, how do these become manifest, and what
renders them objective or indisputable? Dworkin has endorsed all these
conflicting possibilities, sometimes within the same context. In this
volume, however, he more consistently emphasizes that what matters is
the correctness of the judge™s political theory. And he leaves us in no
doubt that the correct theory is “ liberalism.”
Far from attempting to derive liberalism from more fundamental ideas
about the capacities or aspirations of human beings, Dworkin points out
that it does not rest “on any special theory of personality.” Instead,
liberalism seems to be an emanation from American public opinion since
the 1930s or perhaps from the time of the Constitution. Whatever its
derivation, it is the opposite of “conservatism.” Not many conservatives
would agree, but according to Dworkin conservatives value the ideals of
liberty over those of equality, and believe that it is possible to uniformly
determine the ideals of a good life and therefore to expect the government
to promote them.33 As liberals claim no such pretensions to the proper
mode of life, they recognize the prominence of the moral principle of
equality, “that human beings must be treated as equals by their govern-
ment,” over that of liberty. Nevertheless, liberalism is not a form of


31 32 33
Ibid., 115“16. Ibid., 160“62. Ibid., 189, 199.
Ronald Dworkin 289
skepticism. It insists on the principle of equal concern and respect, “not
because there is no right and wrong in political morality, but because that
is what is right.”34 The principle of equal concern and respect is what
Dworkin calls a moral fact and is no more indeterminate or disputable
than the fact that all men are mortal.
From his principle of equal concern and respect, the liberal derives a
number of practical and inescapable conclusions. Unlike the conservative,
he would qualify the decisions of the market, as well as rights to property
and freedom of contract, in order to produce a more equal distribution of
wealth. Where people have different talents and handicaps and inherit
more or less wealth, “It is obviously obnoxious to the liberal conception”
to allow one man to own more because “his father had superior skill or
luck.”35 The liberal therefore supports government intervention for the
redistribution of goods. And if he finds that an adequate distribution
cannot be achieved within a capitalist economy, the liberal would be
forced to reluctantly substitute “socialist for market decisions over a large
part of the economy.”36
Dworkin™s reformulation of his theory of interpretation and his discus-
sion of liberalism make it clear that what, in his view, ought ultimately to
constrain the judge is his allegiance to the principle of equal concern and
respect, which enables him to discern certain “rights.” These rights are not
defined by statutes or past decisions, but they are, Dworkin insists,
nonetheless objective and as compelling as the principle of equal concern
and respect. It is this relation between rights and the principle of equal
concern and respect that leads Dworkin to oppose “principles,” which
should govern adjudication, to “policies,” which are the proper objects of
legislation. He proceeds then to use “principles” as a synonym for
“rights,” and to equate “policies” with “goals.”
The opposition between “rights” and “goals” carries an echo of the
traditional view that the law ought to set conditions for everyone to
observe, rather than to assign satisfactions to anyone, just as the rules
of a game do not assign points or decide who should win. However, by
describing rules of law as ways of achieving “goals,” Dworkin suggests
that they assign advantages. Therefore, when he says that “rights” should
be “trumps” over “goals,” he seems to be saying that the law should not
be used to distribute advantages.37
But the “rights” ordinarily associated with the rule of law emerge out of
established legal rules that define conditions to be observed. A man hurt
by careless driving has a right to compensation because everyone is
obliged by the established rules to take due care in driving. In Dworkin™s

34 35 36 37
Ibid., 203. Ibid., 195. Ibid., 196. Ibid., 66“68.
290 The idea of law repudiated

theory, however, “rights” are opposed to rules of law because he identifies
the conditions set by rules of law as the “goals” of the majority. When
judges decide in terms of “rights” in Dworkin™s sense, they are assigning
advantages to those denied them by the established rules.
Any doubts about whether Dworkin™s emphasis on rights implies that
established rules of law may at times be ignored are definitively settled by
the leading essay in this volume, originally a lecture to the British Acad-
emy, on “Political Judges and the Rule of Law.” Here he plainly presents
his theory as an alternative to the “rule book conception,” which Dwor-
kin describes as the belief that “the power of the state should never be
exercised against individual citizens except in accordance with rules expli-
citly set out in a public rule book available to all. The government as well
as ordinary citizens must play by these public rules until they are changed,
in accordance with further rules about how they are to be changed, which
are also set out in the rule book.”38 Rather than accepting this as the
definition of the rule of law, Dworkin argues that it is an understanding of
law that should be rejected and replaced with what he describes as the
“rights conception” of the rule of law. The rights conception goes beyond
the rule book conception by assuming that individuals have “moral rights
and duties with respect to one another” as well as “political rights against
the state as a whole.” It demands that these rights be recognized in
positive law to be enforced through the courts at the demand of the
citizen.39 Moreover, Dworkin strengthens his rejection of the rule book
conception by stating explicitly: “My point was not that ˜the law™ contains
a fixed number of standards, some of which are rules and others prin-
ciples. Indeed, I want to oppose the idea that ˜the law™ is a fixed set of
standards of any sort.”40 He then emphasizes that when his theory re-
quires judges to rely on principles not in the rule book, it is requiring
judges to do what the rule book ideal prohibits “ to legislate and make
what he calls “political decisions.” And it is precisely these types of
political decisions, decisions which may mean requiring interventions by
the state to restrict the use of property and freedom of contract and to
enforce positive discrimination, that are prohibited by the rule book
conception due to their lack of objectivity, fixity, and public acceptance.
The radical nature of Dworkin™s revision of the idea of law thus
becomes clear. By abandoning the rule book conception and allowing,
indeed encouraging,41 the political decisions required by his rights


38 39
Ibid., 11. Ibid., 11.
40
Dworkin, Taking Rights Seriously, 76.
41
See Dworkin, Matter of Principle, 32.
Ronald Dworkin 291
conception, Dworkin plainly rejects the traditional insistence on the
separation of powers between judges and legislators. He argues that the
judiciary is as justified as the elected legislature to make new law, and
given that judges are more likely to protect the rights of the minority, they
should do just that.42 Finally, he does not claim, as he did earlier, to be
merely describing the true character of adjudication. He announces that
he wishes to promote a radical revision of the idea of law.
However, if Dworkin™s rights are not fixed by being recorded in statutes
or judicial decisions, how fixed are they? Dworkin does draw a distinction
between “legal rights” and “moral rights,” and asserts that the boundaries
of legal rights are set forth through statute and common law and often
reflect moral rights. Moral rights, however, have no such objective defin-
ition. In fact, because there is no fixed content for moral rights, they are
largely determined by the preferences of the minority, as it is the minority
whose moral rights are generally unrepresented in the body of legal rights
codified by representatives of the majority. But as there are no God-given
majorities or minorities, and today™s minority might be tomorrow™s ma-
jority, the content of rights is bound to shift with every change in public
opinion. Dworkin himself points this out when he says that “rights” have
to be defined differently in each case depending on the goal to be trumped
and that “liberals will disagree about what is needed.” And when Dwor-
kin argues that the tyranny of a majority can be prevented by allowing
judges to protect the rights of whatever minority is “antecedently likely”
to be despised by the majority, he is permitting anyone™s guess about the
state of public opinion to justify imposing the will of whatever minority he
chooses to discover.43 Rights swinging in the wind of public opinion can
provide no secure ground for judicial decisions.
It remains to consider whether the principle of equal concern and
respect, from which Dworkin deduces his political theory of liberalism
is, as he supposes, indisputable. What distinguishes Dworkin™s principle
from other egalitarian doctrines is his emphasis on the distinction between
“external” and “personal” preferences and the evil of allowing exter-
nal preferences to determine public decisions.44 What then makes external
preferences so undesirable?
The personal preferences of individuals designate goods or advantages
that they would like to have assigned to themselves. Their external pref-
erences designate what they would like to have assigned to others.
Wanting a swimming pool because one likes to swim is a personal prefer-
ence; wanting a swimming pool because one believes it would be good for
the community is an external preference. Dworkin argues that people are

42 43 44
Ibid., 27. Ibid., 197“98. Ibid., 196“97.
292 The idea of law repudiated

not being treated with equal concern and respect as long as public deci-
sions made by a vote of the majority are allowed to rest on external
preferences because doing so allows the majority to vote twice “ they
decide not only what they should get, but also what others should get.
Since everything in a democracy is decided by majority votes, the only
way to protect minorities against such double counting is to give their
preferences (which the majority does not share) precedence over the goals
of the majority. These preferences of the minority constitute “rights” and
should be immune to modification by decisions of the majority.45
However, as Herbert Hart and others have pointed out, external pref-
erences are nothing worse than disinterested preferences. When external
preferences influence a vote, all that happens is that one person™s prefer-
ences are being supported by those of another. If, for instance, heterosex-
uals of a liberal disposition decide the vote in favor of abolishing
restrictions on homosexuals, then the vote will have been determined by
“external preferences.” But no one is being allowed to vote twice. If that
were true, denying the vote to heterosexuals would eliminate the double
counting. But in fact preventing heterosexuals from voting would be a
gross violation of one man, one vote. In short, what Dworkin presents as
if it were a purely procedural argument with which no one could disagree
“ that counting in external preferences is unfair “ is no argument at all.
But Dworkin attempts to sustain his condemnation of counting in
external preferences with a wholly different argument, i.e., that when
people vote on a question and win, they are necessarily saying that the
losers are inferior and unworthy of their respect. Unfortunately there is
no such necessity. Certainly we can disagree with others for a great variety
of reasons; we may even vote against them out of a tender concern for
their self-respect. Indeed, democracy as we know it presupposes that we
can and should respect those with whom we differ. But if injustice con-
sisted, as Dworkin teaches, in denying satisfaction to the preferences of a
minority, then a tyranny that prohibited all publications or all sexual
relations would be preferable to a democracy that censored pornography
or restricted homosexuals. And as democratic procedures necessarily
reject whatever the losing minority prefers, all just persons would have
to abandon democracy.
There is much to be said, and much has been said, about the desirability
of mitigating the constraints suffered by people who hold unpopular
views. Generally, such discussions advocate arrangements that reduce
the occasions on which it becomes necessary to make public decisions
about which preferences should have precedence. Reducing the area

45
Dworkin, Taking Rights Seriously, 275“77.
Ronald Dworkin 293
controlled by public decisions and securing conditions in which individ-
uals can pursue the projects they prefer without interference is the sub-
stance of the traditional concern with preserving “liberty.” The echo that
it carries of this concern with liberty lends credence to Dworkin™s defense
of minorities. That his doctrine is designed for a different purpose,
however, is evident from his contention that “liberty” is not a right, but
should always give way to “equality,” and that injustice consists wholly in
a denial of equality, not liberty.
Whatever its merits, the principle of equal concern and respect cannot
bear the burden that Dworkin puts upon it. He admits this unwittingly
when he says that it can as easily justify the conservative view that a
government should promote the good life as the liberal view that it should
be neutral. Herbert Hart™s criticism says all that needs to be said: “a
notion of equal concern and respect or ˜conceptions of the concept™
hospitable to such violently opposed interpretations, does not seem to
me to be a single concept at all. . . Though the claim that liberal rights are
derived from the duty of governments to treat all their citizens with equal
concern and respect has the comforting appearance of resting them on
something uncontroversial . . . this appearance dissolves when it is
revealed that there is an alternative interpretation of this fundamental
duty from which most liberal rights could not be derived but negations of
many liberal rights could.”46
That his rights conception cannot serve as an adequate account of
the idea of law is also recognized by Dworkin himself in more than one
context. He says, for instance, that it is both unnecessary and crude to
look to rights for the only defense against stupid or wicked political
decisions. More outspoken is his statement that “We need rights, as a
distinct element in political theory, only when some decision that injures
some people nevertheless finds prima facie support in the claim that it will
make the community as a whole better off on some plausible account of
where the community™s general welfare lies.”47 Such passages indicate that
the rule book conception of law cannot be replaced by the “rights theory,”
as elsewhere Dworkin tells us it can, for the simple reason that the
rights theory is not designed to provide a jurisprudential philosophy of
what law is.
That the rights theory is not designed to provide such a philosophy
of law also explains Dworkin™s indifference to the fact, which he himself
points out, that his doctrine cannot account for criminal law. His


46
Hart, Essays, 219, footnote.
47
Dworkin, Matter of Principle, 371.
294 The idea of law repudiated

arguments against restrictions on homosexuals do not exclude, he assures
us, all legislation about sexual behavior because “Laws against rape, for
example, can be justified by appealing to the ordinary interests of people
generally through a theory of justice that does not rely on popular
convictions.”48 Decisions about criminal law, made by a majority vote,
are permissible because every such decision “is equally in or against the
antecedent whole interest of each person, by which I mean the combin-
ation of his or her moral and bare interests.” People may disagree about
how crimes should be defined and what penalties should be imposed, “But
since moral harm is an objective matter and not dependent upon particu-
lar people™s perception of moral harm, no one will think that the major-
ity™s decision is unfair in the sense that it is more in the interests of some
than others.”49
This justification for laws against rape and murder fails, however, to
explain why they do not deny equal respect to a minority in the same way
as do laws restricting pornography. The majority who pass or sustain laws
that expose those found guilty of rape or murder to punishment are
hardly likely to take a flattering view of the minority of criminals. But
that does not seem to worry Dworkin. He does not say that since the
minority who are disposed to commit rape or murder are despised by the
majority, they are being deprived of equal concern and respect, as he does
when arguing against laws banning pornography and homosexuality. Yet
he offers no grounds for distinguishing the minority of rapists and mur-
derers from the minority of pornographers or homosexuals. And, con-
versely, if the “ordinary interests of people generally through a theory of
justice” can provide the grounds for laws against rape and murder, why
should not the same grounds serve for laws against pornography?
But if A Matter of Principle does not offer a more adequate account of
the rule of law than Taking Rights Seriously, it does reveal why Dworkin
opposes the “rule-book conception of the rule of law.” According to the
“rule-book conception” of law, the obligation to observe a law or to obey
a judicial order does not depend on whether it is thought to be desirable,
good, or just, but on whether it has been duly promulgated according to
the correct procedures. Dworkin, however, has no use for such procedural
considerations. He denies that what makes the Constitution of the United
States law is that it was accepted by the people in accordance with “the
procedures stipulated in the document itself.” He takes the only issue
about civil disobedience to be whether it is designed to promote a just
cause. And he considers the purpose of procedure or “process,” as he
calls it, to be the distribution of “political power.” Procedural rights in

48 49
Ibid., 68. Ibid., 87.
Ronald Dworkin 295
criminal suits, he says, are designed “to compensate in a rough way” for
corruption by the interests of the class that administers it. More generally,
procedures are chosen for what they contribute to democracy. Although
he acknowledges that in the West democracy is identified with procedures
“defined independently of any description of the decisions actually
reached,” he prefers to define democracy in the manner of the “people™s
democracies,” as a system for maintaining equality. But whereas the
“people™s democracies” aim at an equal distribution of wealth, Dworkin
identifies democracy with the equal distribution of political power. And
he sees procedure as a means for achieving equality in power.50
That is why Dworkin asserts that questions of procedure cannot be
decided without regard to “substantive political questions.” The Supreme
Court, he says, cannot take refuge in procedural arguments based on “the
intention of the Framers”; it is bound to make “important political
decisions.”51 For as long as judges confine themselves to deciding whether
the stipulated procedures have been observed, they will merely be main-
taining the existing distribution of power. It has, of course, generally been
recognized that the purpose of constitutions is to distribute power by
deciding who is qualified to vote and to hold office. But the point of such
arrangements is to make it possible to translate all future disputes into
issues about procedure, that is to say, into disputes about whether the law
has been observed. Dworkin considers this to be impossible. His theory
of interpretation assumes that all human utterances are instruments for
obtaining satisfactions or power. Accordingly, achieving greater power is
the only objective that Dworkin considers in his discussion of procedure,
and law is primarily an instrument for redistributing power.
He would have us believe that this theory rests on indisputable moral
facts. Unfortunately, his fundamental moral principle is either empty or
highly disputable, and he connects law with morality only by rejecting the
logical distinction between “is” and “ought”. Instead of giving law a
moral dimension by repudiating that distinction, the rights theory makes
it impossible to tell an authentic legal decision from an arbitrary exercise
of power. It allows, indeed obliges, judges to ignore the law in order to
satisfy the wants of minorities. And this undoubtedly justifies Dworkin™s
claim that his theory corrects “the majoritarian bias” of democracy.52
But a secret is concealed in what Herbert Hart calls the “Byzantine
complexity” of Dworkin™s prose “ that “the majoritarian bias” is corrected
by enabling minorities, who cannot persuade their fellow citizens to agree


50
Ibid., 12, 36, 66, 63, 198, 59.
51 52
Ibid., 58, 34, 69. Ibid., 27“28.
296 The idea of law repudiated

with them, nevertheless to impose their will. In short, if Dworkin™s theory
were to triumph over “the rule book,” minorities who now fail to get their
way by constitutional means would be given the power to do as they
please by judicial decisions.
Nothing so radical appears in Dworkin™s systematic treatise, Law™s
Empire. Indeed, at first sight, he would seem to have renounced his earlier
hostility to the traditional idea of law. Whereas earlier he had condemned
the judges who decided the Fugitive Slave cases against the slaves and
dismissed the statute on which they based their decision as irrelevant, here
he adopts as his own the very arguments that were used against him by his
critics: “If a judge™s own sense of justice condemned that act as deeply
immoral . . . he would have to consider whether he should actually enforce
it on the demand of a slave owner, or whether he should lie and say that
this was not the law after all, or whether he should resign.”53 Dworkin
even goes so far as to deny that he has any quarrel with the view “of most
laymen,” which is also “the anthem of the legal conservative,” that “The
law is the law” and that “It is not what judges think it is, but what it really
is. Their job is to apply it, not to change it to fit their own ethics or
politics.” This view, “read word by word,” Dworkin pronounces as
“nothing controversial.”54 And he condemns “activism” in constitutional
adjudication on the grounds that justices should “enforce the Constitu-
tion through interpretation,” not “fiat,” and that their decisions “must fit
constitutional practice, not ignore it.”55
As in his earlier books, Dworkin once again introduces a new vocabu-
lary and a new strategy. What had earlier been called “positivism” or the
“rule book theory of law” is here described as “conventionalism” (and

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