Monday, February 18, 2013

Dworkin-Lite and Constitutional Theory

Cass Sunstein (Harvard) gives a nice re-statement of those aspects of Dworkin's views that made him such an appealing figure in modern constitutional theory.  Sunstein writes:

Consider a question about which people fiercely disagree: Does the U.S. Constitution require states to recognize same-sex marriages? In answering that question, judges have to deal with many precedents. For example, the Supreme Court has ruled that states can’t criminalize sexual acts between people of the same sex. The court has also forbidden states from banning racial intermarriages. At the same time, the court allows states to forbid polygamous marriages.

In resolving the same-sex marriage dispute, how can judges deal with such precedents? Here Dworkin introduced an arresting metaphor. Suppose that you are a participant in writing a chain novel. Others have written earlier chapters. Now it’s your turn. How shall you proceed?

Dworkin’s answer is that you have to engage in an act of interpretation. You can’t disregard what has come before. If your predecessors have started to write a romance, you can’t suddenly turn it into a work of science fiction without doing violence to what they have done. You owe a duty of fidelity to their work.

But your task is not mechanical. You have to fit the existing materials, and you have to justify them, by writing a new chapter that makes the emerging novel, taken as a whole, the best it can be.

Dworkin thinks that judging is a lot like that. Precedents are like the existing chapters, and a new case is an opportunity to produce a fresh one. Judges can’t just make the law up. But at least in hard cases, they can’t merely “follow the law,”because there isn’t anything to “follow.” What they have to do is produce a principle that both fits and justifies the existing legal materials. This is Dworkin’s conception of law as integrity.

This does, indeed, seem like one sensible recommendation about how judges should proceed when the law leaves a question unsettled (such that there is no law to follow), and nothing in the theory of law known as legal positivism actually takes issue with such a recommendation.  But this isn't quite Dworkin's conception of law as integrity, and it elides the quite radical character of his views about the nature of law.  

According to Dworkin, what the law is (not simply what a court should do in a hard case, but what the law in any given jurisdiction really is) is whatever follows from the best constructive interpretation (in roughly the fit-justification sense glossed by Sunstein) of the institutional history of the legal system, i.e., the prior legislative enactments, court decisions, and so on.  That means, among other thing, that some prior legislative enactments and prior court decisions might not really express the law, since they might not follow from the best constructive interpretation of the system.  Indeed, it means that no one may actually know what the real law is in the United States, or in any other jurisdiction, since no one may have yet figured out the best justification for the institutional history of the legal system.  A theory of law that entails that no one might actually know what the law is faces a serious, shall we say, reductio ad absurdum problem. 

The trademark Dworkinian move in his decades-long battle with legal positivism was always to run together questions about what the law is (on which he and positivists had opposing views) with the question how should courts decide cases (where positivists could often agree with Dworkin).  Here's how I put it in reviewing his Justice in Robes a few years ago:

Dworkin organizes his reply [to Hart's criticisms of Dworkin in the "Postscript" to The Concept of Law]around a hypothetical case involving "Mrs. Sorenson", who has been injured by a defective drug whose precise manufacturer she cannot identify because many companies produced the same product. Common-law courts responded to this kind of problem by inventing a new doctrine, "market-share liability," requiring manufacturers to pay damages for harm based on their "market share" of the dangerous product without requiring individualized proof by the plaintiff that defendant’s version of the product caused the injuries in question. Dworkin thinks Mrs. Sorenson was legally entitled to this remedy even before clever judges crafted the new rule, and—more to the point here—he thinks Hart was committed to denying Mrs. Sorenson was entitled to such a remedy, since the existing legal authorities did not explicitly establish it. "Hart and I hold opposite opinions about the same issue", says Dworkin.

But this is false, if the issue is, as it appears to be, the remedy that ought to be awarded Mrs. Sorenson. For Dworkin runs together the question "What is the law in this jurisdiction?" with the question "How ought a particular case be decided?" Positivists have always been clear that a judge’s legal duty to apply valid law can be overridden by moral or equitable considerations in any particular case, and Hart’s general theory ("the sources thesis") that "laws" are distinguished by their source—by their being enacted, for example, by a legislative body or figuring in the holding of a court—is simply silent on how the wronged Mrs. Sorenson should be treated. On Dworkin’s [theory], however, it seems every moral wrong must have a preordained legal remedy—even though no one knew the law required it!— so that forward-looking jurists who craft new legal rules in response to real-world problems are really only "discovering" a legal remedy that already existed in Dworkinian Heaven.


Sunstein's Dworkin--who is, I think, the Dworkin that has been influential in constitutional theory--is Dworkin-lite, though I intend nothing pejorative by that (think "coca cola lite"--still quite good, but not the "real thing").  It's not quite the real Dworkin, since it obscures from view the counter-intuitive commitments of his conception of the nature of law.  But it is the bit of Dworkin that seems most appealing, and helps make sense of one way in which constitutional lawyers and theorists argue.

ADDENDUM:  This obituary from The Telegraph is indicative of how Dworkin's own misreadings have influenced the reception of legal positivism; the obituary states:  "Hart held that the law is a set of rules based on customs and institutions and that legal deliberation need not take account of considerations of morality or fairness – the province of the legislature."  Hart held something like the first bit, but never wrote anything that even suggests "that legal deliberation need not take account of considerations of morality or fairness," let alone that those were "the province of the legislature."   It's really quite extraordinary that such basic features of Hart's views should be so consistently misrepresented, and I fear some of the blame for that does go to Dworkin.

ANOTHER:  Is Dworkin "the most important" legal philosopher of the last century, as Professor Sunstein suggests he might be?   I think the comments of John Gardner, who succeeded Dworkin as the Professor of Jurisprudence at Oxford, are closer to the mark:  "There are several contenders for the title of greatest philosopher of law of the late twentieth century. But nobody rivals Ronald Dworkin for the titles of most innovative and most provocative."  I assume Professor Gardner, in referring to the "late twentieth century," is also thinking of Joseph Raz and John Finnis.  If we take the long view of the whole last century, and in a global rather than American perspective, I think it would be hard to find any legal philosophers who rival H.L.A. Hart or Hans Kelsen for the depth and breadth of their jurisprudential corpus and influence.

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