He’d Rather Have Rights

Ronald Dworkin’s Taking Rights Seriously is the most important work in jurisprudence since H.L.A. Hart’s The Concept of Law and, from a philosophical point of view at least, the most sophisticated contribution to that subject yet made by an American writer. In this collection of essays, Dworkin argues that any adequate political theory must take rights seriously in a way that prevailing conceptions fail to do. He therefore rejects both legal positivism and utilitarianism. Legal positivism, the theory of law that derives from John Austin and Jeremy Bentham, has been directly or indirectly influential on such prominent American jurists as Oliver Wendell Holmes, Felix Frankfurter, and Learned Hand. Dworkin rejects it because it denies that individuals possess any legal rights that have not been created by explicit political decisions or social practices. In fact, Dworkin argues, we possess many legal rights that were not created in either of these ways.

Utilitarianism is, by contrast, a theory of what law ought to be, holding that legal institutions should serve the general welfare and nothing else. This is the view implicitly held by a great many politicians, officials, and economists in the United States and the United Kingdom; we find it reflected daily in decisions on education, social welfare, and many other matters. Dworkin rejects this view because it implies that the majority may disregard individual moral rights, rights of the sort that the Constitution protects in the Bill of Rights and in the Due Process and Equal Protection clauses. For Dworkin utilitarianism thus provides an inadequate theory of moral rights, even as legal positivism provides an inadequate theory of legal rights.

It is one of Dworkin’s great merits that he is able to relate his views on these fundamental theoretical topics to issues of the greatest practical importance. I doubt whether any writer has made more penetrating analyses of such issues as the Warren Court’s “activism,” DeFunis’s claim that the University of Washington violated his constitutional rights, or the claims of those who practice civil disobedience that they are not obliged to obey laws that violate their moral principles. Certainly no comparable powers of analysis can be found in the limp opinions produced by the Supreme Court in recent years. Oxford University, seeking the most incisive legal thinker it could find, appointed Dworkin, an American lawyer, to replace H.L.A. Hart as Professor of Jurisprudence. Is it too much to hope that a president who takes rights seriously will be equally discerning when the time comes to reconstitute the Court?

As Dworkin understands it, positivism maintains that the law of a community is to be identified with a specific set of rules. These rules of law determine which behavior will be punished and coerced by public power; they must be distinguished from other social rules, especially from moral rules, which are not enforced by public power. Positivists such as H.L.A. Hart assume that these legal rules can in fact be identified and distinguished from other rules by some test. And they believe that this test does not need to inquire into the content of rules but only into the process by which they were developed or adopted. In modern democratic societies the mark of legality will normally be that the rule was enacted by some competent institution.

It is the duty of judges to apply legal rules—derived from previous cases or from statutes—to particular cases. But, if a case is not covered by one of these rules, if the judge cannot apply the law, he must still resolve the case and can do so only by “exercising his discretion.” When a judge exercises his discretion, however, he is no longer determining the pre-existing rights and duties of the parties before him. Rather, he is creating new rights and duties and imposing them on the parties ex post facto. His opinion is undoubtedly written in language which suggests that one of the parties had a pre-existing right to win the suit, but this suggestion is illusory. In reality he is legislating and not adjudicating at all. He may be legislating his own view of what justice between the parties requires, or, if he accepts the utilitarian view of what the law ought to be, devising new rules that will serve the general welfare.

But then the question arises, why are judges rather than legislators engaged in legislating? Is this not a usurpation of authority and a violation of the principle of the separation of powers? The question takes on particular urgency in constitutional cases. If judges are not applying legal rules, but exercising their discretion, by what right do they substitute their own views for those expressed by the majority through its elected representatives? Such a policy of judicial restraint was urged against the activist Warren court by a number of conservatives, including, for example, Justice Frankfurter himself, and his admirer, the late Alexander Bickel of Yale: wasn’t such a policy, they argued, the only one consistent with democratic principles?

Dworkin’s response to this strong argument for judicial restraint depends on his own analysis of positivism, which, along with the alternative he proposes, constitutes his main contribution to jurisprudence. Dworkin rejects the positivists’ suggestion that the judge is acting out a fiction when he professes to discover the pre-existing legal rights and duties of the parties to the dispute. It is the judge’s duty to determine which party has the stronger legal argument, and this duty does not lapse when the case is a hard one. On the contrary, it is in precisely these circumstances that the judge’s distinctive skills as an adjudicator are called most fully into play. (Hard cases make great judges.)

The positivist maintains that the judge does not decide hard cases according to legal standards because the positivist’s theory implies that he cannot. But this position depends on his view that legal rules provide the only legal standards, and it is this contention that Dworkin rejects. According to Dworkin the legal resources available to lawyers and judges when they reason about legal rights and duties are much richer than the positivist acknowledges. They may appeal not only to legal rules but to legal principles as well. It is the existence of principles, then, that allows them to render judgment in hard cases, cases that do not fall under any existing legal rule.

This distinction between rules and principles is exhibited in the famous case of Riggs v. Palmer, discussed by Dworkin in his essay “The Model of Rules.” In 1889 a New York court had to decide whether an heir named in the will of his grandfather could inherit under that will even though he had murdered his grandfather to do so. The court acknowledged that the statutory rules, literally construed, “if their force and effect can in no way and under no circumstances be controlled or modified, give this property to the murderer.” But the court went on to note that “all laws as well as all contracts may be controlled in their operation and effect by general, fundamental maxims of the common law.” The court then invoked what Dworkin calls a principle. “No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong,…or to acquire property by his own crime.”

The positivist will agree that in deciding Riggs the court relied on a principle, not on any pre-existing rule of law. As he has identified law exclusively with the rules of law the positivist is obliged to say, however, that the court exercised its discretion and decided the case on extra-legal principles. If this is so the positivist must also say that the murderer in Riggs was deprived of his property by an act of judicial discretion applied ex post facto. Dworkin argues, to the contrary, that the law includes principles as well as rules. The court, far from applying extra-legal standards as a matter of discretion, was applying legal standards as a matter of duty.

The murderer in Riggs, according to Dworkin, was not deprived of his property ex post facto; he simply had no right to the property under existing standards of law. To be sure, Dworkin notes, it is impossible to show that principles of law, like the principle that a man shall not profit by his own wrong-doing, derive their authority from some explicit legal or political decision. The origin of these principles lies not in the practical decision of some legislature or court but in a sense of appropriateness—often a sense of the moral appropriateness—developed in the legal profession and in the public during a considerable period of time. In fact, no fundamental test of the kind positivists seek exists in the complex legal systems of countries like the United States and Great Britain. If follows that in these countries valid legal standards cannot be identified as those that pass such a test. Nor can they be distinguished from moral rules by such a test.

Let us apply Dworkin’s analysis to a constitutional issue and note its consequences for the debate over judicial activism. In the recent abortion cases, according to the positivist theory, Supreme Court justices first determined that the language of the Due Process clause and of prior Supreme Court decisions did not dictate a decision either way. They had then to exercise their discretion and decide whether it was permissible for a state to allow abortion in the first trimester. Those who favor judicial restraint will ask why, at this point, judges should impose their own views of morality instead of accepting the views expressed by the majority through its democratically elected representatives. Why should a judge who believes that women have a right to abort fetuses substitute his own views for the views of the majority of citizens who think otherwise?

The issue will seem very different, however, if we consider the problem of adjudication from Dworkin’s anti-positivist point of view. In this view the judges did not first find the limits of what the law requires and then face the question whether to espouse judicial activism by supplementing the law with their own moral views, or act with judicial restraint and defer to the majority. Rather, on Dworkin’s analysis, a judge uses his own judgment to determine what legal rights the parties before him possess. When that judgment is made nothing remains to submit either to his own or to the public’s convictions. Unlike the positivist who does not consult popular morality until he has fixed the legal rights of the parties, Dworkin’s judge has already taken the community’s moral traditions into account in his attempt to determine the rights of the parties under the Due Process clause.

Indeed, Dworkin argues, it is only by such moral investigations that he can perform the judicial task of enforcing the Constitution at all. His technique may sometimes require a decision that opposes popular morality on some issue. But it is a profound mistake to suppose that in such a case the judge enforces his own convictions against the community’s. Rather, he judges that the community’s morality is inconsistent on the issue: its constitutional morality condemns its discrete judgment on the particular issue of abortion.

It must be remembered that ours is not a simple majoritarian democracy, for the Constitution recognizes that individuals have moral rights against the majority. When these rights are contested there is little sense in allowing the majority to judge its own case. Far better to allow the courts to determine the legal rights of the parties. Whatever we may think of the Warren Court’s judgment in particular cases, at least it made that attempt. The choice is not, as the popular debate often suggests, between judicial activism as a program of moral legislation and judicial restraint as a program of rule-bound deference. Rather, the courts must frame and answer the questions of political morality that the logic of the constitutional text demands. There is no alternative if we are to take constitutional rights seriously.

Dworkin shows just what is involved in framing and answering difficult constitutional questions in his complex treatment of the DeFunis case. For DeFunis claimed that in denying him admission to its law school the University of Washington violated his constitutional right to equal protection of the laws. If DeFunis is correct the University of Washington cannot pursue its policy of reverse discrimination at his expense. But there is no objection to its pursuing those policies, or to justifying them on utilitarian grounds, if they do not in fact infringe his rights. Do they?

According to Dworkin our fundamental moral right is the right to be treated as an equal. It is this right to which the Equal Protection clause gives legal expression. But we must distinguish between the right to be treated as an equal and the right to equal treatment. Sometimes, the right to be treated as an equal requires equal treatment. The rule that one man has one vote is a case in point. But often it does not, and Dworkin argues that it does not in the case of admission to the University of Washington’s law school. Any policy that the school adopts will put some candidate at a disadvantage. If it adopts the conventional criterion of favoring more intelligent candidates it puts less intelligent candidates at a disadvantage. But this policy does not display any objectionable lack of respect for less intelligent candidates and there is therefore no constitutional impediment to the University of Washington’s pursuing this policy on the utilitarian assumption that it contributes to the general welfare.

Similarly, the law school may judge that an admissions policy favoring minority groups will serve justice and also serve the general good by reducing racial tension. As the first policy puts the less intelligent at a disadvantage, this policy will disadvantage candidates like DeFunis. But like the more conventional policy, it displays no lack of respect for those it disadvantages. Therefore, it does not violate DeFunis’s right to be treated as an equal.

Why, then, have so many liberal lawyers supported DeFunis’s claim? They suppose, Dworkin speculates, that if the Supreme Court was right in saying in 1945 that the University of Texas’s segregationist admissions policy violated the Fourteenth Amendment rights of a black man named Sweatt, only a fashionable liberal preference for certain minorities can justify Washington’s rejection of DeFunis. But in Dworkin’s view this argument does not survive analysis. The only plausible arguments that Texas can make in favor of its segregationist admissions policy are utilitarian ones (it certainly cannot argue that such a policy will make society more just). Texas might argue, for instance, that the commercial life of Texas will be more efficient if it produces only white lawyers.

But this utilitarian argument is objectionable in a way that Washington’s is not. Utilitarianism appears to observe and even to embody the individual’s right to be treated as an equal. If we measure preferences by votes each man’s preferences have an equal chance to succeed. However, if a utilitarian calculation includes not only personal preferences concerning one’s own enjoyment of goods and services but also external preferences about how goods and services should be distributed to others this egalitarianism is corrupted. For now a man’s chances of having his preferences accepted are threatened by the view others have of him. We must assume that in a society as saturated with prejudices as Texas was in 1945 these external preferences diminished the chances that blacks’ preferences would prevail and may well have tipped the balance in favor of a segregationist policy. Unlike DeFunis’s, Sweatt’s right to be treated as an equal was not honored.

While I find Dworkin’s arguments against DeFunis persuasive, and agree that DeFunis’s case can be distinguished from Sweatt’s, I find Dworkin’s arguments about the Sweatt case the least persuasive in the book. Why does Dworkin assume that Texas’s decision relies on external preferences rooted in prejudice? If white Texans endorsed a segregationist policy not because they are prejudiced but because it was to their personal advantage would the policy have been acceptable, or constitutional? Perhaps Dworkin will say that such a policy would be objectionable for other reasons. But, then, are these not the crucial reasons?

In any case, is Dworkin’s objection to registering external preferences sound? Consider a bill to increase public spending on the handicapped beyond what is due them as a matter of right. If sympathetic, able-bodied citizens add their votes to the self-interested votes of the disabled, do they unfairly increase the chances of the bill’s carrying? And if the votes of those who are benevolent and able-bodied tip the scales against those who are self-interested and able-bodied, have the votes of the self-interested been deprived of their fair weight? Has their right to be treated as equals suffered a violation? Would it be a violation of constitutional dimensions in a society saturated with sympathy? Dworkin shows that he will not be surprised by these questions. I think, nevertheless, that his objection to Texas’s treatment of Sweatt is not plausible if it is simply an objection to the registering of external preferences. It will require the efforts of Dworkin and many others before this difficult topic is fully understood.

Dworkin rejects the positivist view of adjudication and the utilitarian view of legislation because they do not take rights seriously. He rejects the received view of compliance with the law for similar reasons. The American constitutional system acknowledges that men have moral rights against the government. If so, we cannot say that they have a duty to comply with laws that violate their fundamental moral rights. To say so is to empty that proud claim of its significance. Still less can we say that dissenters have a duty to comply with laws whose validity is open to question. And this will typically be the situation of dissenters in the American constitutional system. For when a significant number of people are tempted to disobey the law on moral grounds the law will be doubtful, if not clearly invalid, on constitutional grounds as well.

This is so because the Constitution, especially in the Bill of Rights and in the Due Process and Equal Protection clauses, makes political morality relevant to the question of validity. Any statute that seriously compromises that morality will raise constitutional questions. Dworkin argues that if the law he is asked to obey is doubtful the dissenter’s duty is not to assume the worst and act on the premise that it forbids him to act as he wishes. Nor is it his duty to obey even after an unfavorable decision by the highest competent court. We cannot accept the view that the law is what the Supreme Court says it is. If the Jehovah’s Witnesses had obeyed the Court’s first flag-salute decision in 1940 they would have done what conscience forbade them to do. In addition, they would have lost the opportunity to indicate to the Court the profundity of their objections. The Court in 1943 accepted the point of their continued disobedience and overruled itself. The dissenters’ integrity was preserved and our religious liberties are better understood.

In general, the government should soften the predicament of dissenters when it can do so without great damage to its other policies. Of course, it cannot permit dissenters to violate the moral rights of others. That is why it cannot allow the segregationist to bar the schoolroom door to the black child. But the draft refuser is not to be compared to the segregationist. The public does not have a general right to have the law enforced, for to concede such a right would undermine the claim that we possess moral rights against the government. Those who are called in the draft refusers’ place do not have a right to be called only after others have been. The Draconian propositions that the laws must be enforced and that he who misjudges the law must take the consequences are not required by the rule of law and they call into question our belief that men are entitled to equal concern and respect.

Dworkin’s essays are brilliantly written, as will be known to readers of this journal, where many of them first appeared. And given the occasional, and occasionally polemical, nature of some of them, the book is remarkable for its unity and technical assurance. The collection would perhaps have profited if Dworkin had stated explicitly the subtle changes of doctrine that have taken place between his original critique of positivism, “The Model of Rules,” in 1968, and his most recent theoretical statement, “Hard Cases,” written in 1975. As it is, the fastidious reader will sometimes find it difficult to tell which definition of “principle” governs, or what Dworkin’s present view of the relation between law and morality is. Legal positivists will disagree about the accuracy of Dworkin’s account of them, and those positivists who do not find his views incredible may argue that they do not really disagree with him after all. I believe that, on all the fundamental issues between them, Dworkin is the more persuasive. His attempt to “save the appearances” and show that even in a hard case one of the parties has a legal right to win seems to me a major contribution to jurisprudence.

Philosophical utilitarians have more ground for complaint. Dworkin’s view that utilitarianism can make no place for moral rights is insufficiently defended, however true it may be. Some of the more sophisticated utilitarians, from J.S. Mill to R.M. Hare, have given arguments to which he does not explicitly reply. They would argue, for example, that a society could very well endorse constitutional rights against the government on grounds of utility: to achieve the “greatest good for the greatest number” in the long run, a legislature could be disqualified from pursuing the general welfare in particular cases. Presumably, Dworkin would reply that rights against the government, if we really take them seriously, would not depend on such a contingent argument and would exist whether or not one could show that recognizing them promotes the general welfare; but this reply could have been more explicitly worked out. His arguments are, however, decisive against the more naïve and intuitive forms of utilitarianism, and these are the forms of the doctrine that are ubiquitous in public discussion and have consequences for our public life. This is a book that should be read by anyone who cares about our public life—either in theory or in practice.