Taking Law Seriously

...When a judge disregards precedent and statute in favor of "principles" or "intuitions of rights," we have no way of knowing what question he will choose to answer or on what grounds...

...Even learned jurists seem to have forgotten the elementary ideas that underlie the rule of law...

...They allow us to know who has the right to decide what, when, and how...

...and he concludes therefore that there is no objectivity in law and that every trial is indistinguishable from a political decision...

...Anyone who says that there may be disagreements about rights is dismissed: by Dworkin as a "moral sceptic...

...In all his arguments, Dworkin ignores the fact that a judge is authorized to make only certain kinds of decisions, and only in accordance with certain laws and procedures...

...Dworkin intimates that his theory is peculiarly ap; propriate to law in the United States because it has a written constitution...

...Here, as elsewhere, he moved from showing that there was some-disagreement about how to interpret the law-in this case it is "due process" which is "problematical"-to the conclusion that the only way to resolve the uncertainty is to go outside the law...

...And this obligation is what many of those who talk about "natural rights" as a foundation of law deliberately or unwittingly deny...

...A proper understanding of the argument from natural law cannot support Dworkin's assertion that the policies he advocates about reverse.discrimination and the distribution of economic goods follow necessarily from indisputable moral principles...

...The reason he gives for calling the trial "political" is that the "federal anti-riot law, under which the defendants were charged, had been sponsored by Republicans and Southern Democrats as a means of showing the nation that the federal Government had the power and will to strike back at the outside agitators who, as the Congressmen wanted to believe, were the true causes of the epidemic of riots that had devastated American cities...

...tence on respect for rules of law and recognize that what matters is securing "rights" or justice...

...In fact, this is anything but a defense of individualism or liberty...

...But, Dworkin adds, whenever the defendant holds political opinions which the judge or jury does not share, the trial should be recognized to be a political trial...

...When speaking about "hard cases," Dworkin argues that as all practical decisions are indeterminate, reasonable men may always disagree...

...And in cases like the Chicago Seven, there should be no prosecution at all, "even when the prosecution believes that a crime has been committed...

...And that is why the "rights" school is so bothered about getting judges who have what it considers the "correct bias...

...The confusion promoted and exploited by Dworkin has been exacerbated by his claim sometimes to be explicating a theory of natural law...

...We have come to this sorry pass by having become confused about the meaning of authority and of rules, and about the relation between morality and law...

...Therefore the judges were obliged to "make new law" Dworkin conceded that Justices Shaw and Story felt "that they were duty-bound to enforce the law as it was, against the slaves, rather than to follow their own moral convictions.' * But Dworkin suggested that the Fugitive Slave Acts were not valid because they offended "ordinary notions of due process...

...Moreover, the Captain's conception of his duty is, we are shown, wholly shared by Billy himself...

...And in such a trial, '' members of political minorities [such as members of the Communist Party, as Angela Davis was] should not be treated like everyone else in court...

...And he constantly emphasizes another fact-that judges always and necessarily exercise discretion to discover what the law means in a particular case so as to arrive at a decision...

...People go to court to argue about whose rights have been infringed and, when a court decides, we expect justice to be done...

...But the hidden moral of all these outcries is the same: that we ought to renounce the ''old-fashioned, narrow, inhumane" insis...

...it is a legal notion and can only be known from legal interpretations...

...He added that "the American Constitution presupposed a conception of individual freedom antagonistic to slavery," a doctrine impossible to maintain in the face of the fact that the Constitution recognized and authorized the existence of slavery-as for instance in the clause of Article I, Section 2, which apportions representatives and direct taxes by adding to "the whole number of free persons" in any state "three fifths of all other persons...

...And finally Dworkin comes to what he considers to be the heart of the matter: "There is a lively myth," he says, "that however political the content of the criminal law, however political the decision to prosecute one man rather than another, politics stops at the courthouse door...

...And he claims not to be inconsistent when he maintains that there is a "right to liberty of free expression and of free choice in personal and sexual relations,' ' and an indisputable right to join the Communist Party and to propagate its doctrines, while denying that there is any right "to the free use of property...

...Dworkin explicitly informs us that "the idea.of aright to liberty" is a "misconceived contept," that opposing "social regulation like the busing program'' on the grounds that it interferes with liberty is a "spurious" argument...

...When he addressed the British Academy recently, and told the assembled dignitaries of the British bar that they ought to give up their old-fashioned addiction to "rules" and accept-what has become an established truth in the U.S.-that judges should be free to ignore "narrow rules of law" so as to decide on higher moral grounds, there was not a murmur...

...But then we are told that the truth of some conclusions about "rights" is indisputable because there is an "objective reality" of ' 'rights and duties'' which are "objective facts, independent of the structure or content of conventional systems...

...The most illuminating example of this attack on the idea of law is that made by Ronald Dworkin, formerly of Yale and now Professor of Jurisprudence at Oxford...

...That is an odd statement for a jurist to make, since a law, by itself, cannot punish people-it can only stipulate punishment...

...Dworkin talks about discretion as if it were a synonym for arbitrary power...

...A citizen who does not recognize a duty to obey the law is, according to Aquinas, declaring himself to be a revolutionary...

...He describes his theory as "liberal" and presents it as an alternative to the amoral rigidities of positivism...

...The law designates what standards and considerations may, should, or should not enter into the judge's decision...

...he suggests only that the judge was no better than those who passed the law because the judge also did not share the political opinions of the defendants...

...The story, as Melville writes it, is about the agony of a man who is torn between his personal feelings -his love of Billy-and his duty as captain of the ship to enforce the established rules...

...And because the law gives a more deter- minate character to vague moral convictions by defining '/rights" and '' duties'' along with procedures for ascertaining, disputing, enforcing, and changing them, the law makes it possible for people with divergent ideas to live together in peace...

...Instead, certain critics have been attacking the legal systems of the United States and Western Europe as unjust and inequitable because, they say, judges are servants of the state, mouthpieces of the ruling class, and defenders of the status quo, and judicial decisions are political decisions or hopelessly willful...

...One might expect that learned jurists, above all, would flatly dismiss such skepticism...

...Dworkin asserts that "taking rights seriously" means that the government ought to take positive action to make sure that certain people get certain advantages...

...In Melville's account, the center of interest is the dilemma of Captain Vere, and it arises from the discrepancy between Billy's objective guilt and his subjective innocence-he did not mean to kill the officer and came to strike hini under special circumstances...

...If indeed the law had stipulated only that men should be punished for their intentions, without giving any indication of how their intentions should be identified, it is difficult to see how it could have been used at all...

...He even suggests that there is an affinity between his views and those of Burke and Hayek...

...The procedure of a trial, the myth runs, is fixed by neutral rules designed to extract truth and protect the innocent...

...And that is a necessary-though not a sufficient-condition for being able to run our own lives instead of being managed by a despot as he sees fit...

...Dworkin does not deny that the riots took place, or that the defendants were involved in the riots, but he says that the riots were caused "principally" by the police...

...Nor does he allow any room for doubting the justice or desirability of giving the government such powers...

...and by the suggestion that a judge with "wholesome" biases should deliberately implement them in his decisions...

...They are impressed when Dworkin says, as at the end of his essay on "Taking Rights Seriously," that a government must recognize that citizens have "a right to break its law," and that any "harsh treatment of civil disobedience or campaign against vocal protests" counts as evidence that the government does not take rights seriously...

...He is making a political rather than a legal decision, and not because that is what judges necessarily do but because he is using the power he possesses when sitting'on the bench to usurp the authority of the legislator...

...If judges were free to "exercise discretion" unbridled by legal rules, they would be officials within a tyrannical regime rather than officers of the law...

...Dworkin goes on to deny that there is any such thing as a "general right to liberty...

...Legal rules bear the same relation to "generally . accepted moral principles" as an architect's drawing does to his sense of proportion...

...Arguments for an admissions program "that discriminates in favor of blacks," he tells us, are both "utilitarian and ideal...

...In his essays on "Reverse Discrimination" and "What Rights Do We Have...

...That is nonsense...

...He is exercising arbitrary power, Then indeed our only hope lies in having judges whose interests and opinions are the same as our own...

...Dworkin attempts to deal with some of these points, but anyone who tries to discover what, in Dworkin's view, establishes the validity of a law might as well try to nail a custard to a wall...

...Nor are intentions usually irrelevant in law: To ask whether an . act was deliberate or accidental, and if accidental whether it was the result of negligence or occurred in extenuating circumstances, has long been considered in the Western world to be essential to treating defendants justly...

...Dworkin ignores all of this and tells us instead that Captain Vere "found satisfaction in the very idea of a power so strong that it can exact obligation, not simply obedience, no matter how unjust its command...

...What is strange is that anyone who cares about justice could be skeptical about rules of law...

...He exploits it to advocate, without saying so explicitly, that judges usurp the authority of legislators to make new law...

...That he, Dworkin, considered the law "unnecessary'' o appears to establish that it was a "political" and not a "valid" law...

...Fuller did not say that where the rule of law does prevail, a citizen has no duty to obey any rule or ruling of which he disapproves, which is precisely what Dworkin argues-when it suits him...

...Of course, the meaning of "due process" has been much disputed...

...He assures us that "ideal arguments do not rely upon preferences at all, but on an independent argument that a more equal society is a better society evenifitscitizens prefer im equality...

...But what constitutes "due process" is not, as Dworkin says, ' 'an ordinary notion...

...There was no true law under the Nazis, Fuller said, because the Nazis regularly violated the distinction between legal and political decisions...

...It should be noticed that Aquinas acknowledged and considered circumstances under which one might be justified in acting as a revolutionary, but he leaves us in no doubt that citizens cannot claim a "right" to disobey any law which they find undesirable...

...Because Dworkin talks about "rights against the government, " and insists that the "rights'' of the majority as such "cannot count as a justification for overruling individual rights," individualists and libertarians are disposed to count him as one of their party...

...What attitude Dworkin would . have us take toward judges who respect established law is illustrated in his use of an analogy between one of the judges who decided the slavery cases, Justice Shaw, and Captain Vere in Billy Budd...

...He does not deny that the law invoked existed or that it was promulgated according to authorized procedures...

...If a judge selects at will, as Dworkin says he should, among the many and probably conflicting moral notions prevailing in the community, if a judge takes it upon himself to decide what moral notions should prevail or who deserves to get what without regard for rules of law, as Dworkin would have him do, he is not doing what a judge is authorized to do...

...Consequently, we are easily lured into forgetting that while judges must exercise discretion, there are rules for distinguishing, judicial from legislative discretion...

...It may be that the supposition that one side may ber right arid the other wrong is cemented into our habits of thought at a level so deep that we cannot coherently deny that supposition, no matter how sceptical 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...

...Though rules of law are not indisputable, they shape and limit disputes, and provide procedures for settling them...

...and the total iniquity of the proceedings appears to be made indisputable by the fact that Nixon was President at the time...

...While thus acknowledging that there was law on the subject, Dworkin implied that the law was constitutionally invalid...

...And he does not suggest that those who choose to disobey laws of this kind have a right to do so...

...From this it seems to follow that when the Attorney General exercised the authority attached to his office charge these defendants, it was "for no better reason than that each was a prominent leader of a faction of the New Left...

...To say that citizens should be free to break laws whenever they feel inclined to do so, or at least when they feel impelled by conscience to do so, gives the law the character of a curious ceremony, which we may indulge in if we like, but only as long as it does not interfere with our preferences...

...This, Dworkin instructs us, constitutes preferring law to morality...

...Instead, many of them are excited by the "revelation" that some judges are biased about some questions...

...But the truth is, Dworkin assures us, that judgments are never dictated by rules because the judge and jury make an assessment of the character and motives of the defendants and those who support them, It is now familiar ground to lawyers that the personality of judge and jury will affect these decisions, but this influence will be much greater if they perceive the accused not simply as men but as representatives of political movements...

...Moreover, since the constitutionality of the law had not been questioned in court, the fact that Dworkin considers it unconstitutional hardly makes it invalid...

...Indeed, "the central concept" of his argument, Dworkin reveals, is not liberty but equality...

...The man who wrote these words is accepted in the United States and Britain as someone who is devoted to the rule of law, and is explicating the meaning, of law...

...Dworkin describes Captain Vere as a man who enjoyed hanging a man whom he knew to be innocent...

...Positive law cannot be deduced from natural law...

...Dworkin concludes his account of the Chicago trial by deploring, perhaps more than any of its other unfortunate effects, that the trial "proved to be the last occasion on which the different fragments into which the New Left had already split worked together in any effective way...

...Dworkin thus invites us to liken a judge who feels obliged to uphold the law to a harsh military commander who takes pleasure in hanging an innocent man...

...To anyone who is clear about the difference . between authorized discretion and arbitrary power, it should be obvious that to Dworkin's disingenuous question-Why should not moral principles enter into a legal decision, just as much as legal rules?-there is a simple answer: because the law does not authorize a judge to decide according to any standard that he . might find it convenient or pleasant to use...

...Why evidence to that effect had not influenced the" course of the trial he disdains to mention...

...There is so grave a risk of unfairness to such defendants, Dworkin pleads, that "discriminations should be made in their favor" and evidence about their politics excluded...

...All of this implies that "rights" are disputable and cannot be shown to be necessarily true...

...He assures us besides that "rights".are not "spooky sorts of things," that he is using "rights" in a sense that "does not make ontological assump- . tions of that sort" but simply "shows a claim of right to be a special, in the sense of a restricted, sort of judgment about what is right or wrong for governments to do...

...With regard to the slavery cases, Dworkin has defended, in his usual fashion, two contradictory assertions: that the Constitution offered no guidelines on how to decide, and that the law on slavery was so immoral that decent judges should not have upheld it...

...Its recalcitrance and success count as arguments that it is no myth...

...In the review, Dworkin says that the trial was as unnecessary as it was "unjust" because it was a "political trial...

...And he made it clear that good men may reasonably disagree about whether any given positive law conformed to natural law because there is no necessary logical link between them...

...Moreover, the only consistent theme in all Dworkin's writings is that there is no distinction between law and politics, and this is what, according to Fuller, characterized the Nazi attitude to law...

...Dworkin .adds, for good measure, that it was probably "an unconstitutional law as well, because it punished men for their intentions, and not for the acts they did in pursuing these intentions...

...he would be giving arguments to show why one set of consequences is preferable to another...

...Dworkin's "right" to resist the government whenever it makes decisions to which the citizen objects is plainly denied by Aquinas...

...The difference between Dworkin's version and the story as told by Melville is revealing...

...in short, he would be making practical arguments of the kind described by Aristotle in the Rhetoric, because a natural lawyer would recognize that, as these are matters on which reasonable men may disagree, he is obliged to show why the alternative he favors should be accepted by others...

...When Aquinas said that certain principles of natural law could be known to be true, he sharply and unequivocally distinguished between the highly abstract principles of natural law and the determinations of it in "positive" law enacted by the ruler...

...by the allegation that all judges are biased about every question that comes before them...

...Or if they have not forgotten them, they are not sufficiently clear-headed to see how ideas fundamental to the concept of law are being twisted to serve the cause of destroying the law...

...How Dworkin uses this rhetoric for practical purposes is nicely illustrated in his review of Jason Epstein's book (The Great Conspiracy Trial) about the trial of those charged with participating in the Chicago riots associated with the Democratic Party Convention of 1968...

...When taxed with this interesting contradiction, he argued that the constitutional and statutory provisions were so abstract and so unclear, and the legal background so ambiguous, that there was no settled law to follow...

...Melville tells us that when the Captain asked that Billy be condemned, he was arguing against-his strong personal preferences...

...What enables him to reach this conclusion is his equation of "indeterminacy" in the law with an "absence" of law...

...Of course justice and rights are relevant to law...

...But Fuller's reason for denying that the Nazis were operating under a true system of law is the contrary of Dworkin's...

...The review is telling because it gives the gist of the argument which appears-much less plainly-in his essay on "Taking Rights Seriously...

...Whereas in the early chapters of his book Dworkin denounces the "myth" that there is only one correct decision in a "hard'' case, at the end of the book he firmly declares that this so-called "myth" is not a myth at all, but an undeniable truth...

...To people who say, "Surely it cannot be that in a genuinely hard case one side is simply right and the other simply wrong," Dworkin replies: But why not...

...A more recent defender of natural law, Professor Lon Fuller, has argued that even if certain laws in Nazi Germany had been enacted by valid procedures, there was no obligation to obey them because they were not part of a true system of law...

...Dworkin argues that the ; law was "unnecessary" because "the individual states have sufficient power to punish those who incite riots within their boundaries...

...But here again he is exploiting an apparently small difference, which is crucial to the rule of law, between discretion and unlimited arbitrariness...

...Individualists ought to notice also that much of Dworkin's writing contains another, contrary message...

...If Dworkin were genuinely arguing in the fashion of a natural lawyer, he would not be talking about"rights" at all-he would be considering how certain practical arrangements might or might not contribute to certain consequences...

...In his remarks on another '' political trial,'' that of Angela Davis, Dworkin appears to exercise moderation and ob-jectivity because he grants that, given the circumstances of the case, it might not have been entirely improper to charge Miss Davis with murder...

...Rules of law are formal and relatively precise statements of the rights and cluties that members of the community are obliged to respect...

...Here Dworkin manages to equate an insistence on the objectivity of the law with a denial of the fact, which no reasonable man would deny, that a judgment of the character of the defendant is relevant to deciding on his innocence...

...He is exploiting an apparently tiny difference, between uncer tainty about what the law means and the absence of law, that happens to be fundamental for liberty...

...Dworkin says that he is out to persuade us to restore the connection between law and morality by "taking rights seriously...

...The truth is that Dworkin uses the Constitution as he uses all laws-any time there is a disagreement about how a case should be decided, he concludes that the constitutional provisions are "too abstract" or "vague" to allow a legal decision and that judges have therefore to rely instead on moral or political prin ciples which are, or which they believe ought to be, imbedded in the Constitution...

...As the object of Dworkin's insistence on "taking rights seriously" is to obliterate any distinction between law and politics, to establish that law is politics, he could hardly be further from advocating a theory of natural law...

...His conception of equality, which he describes as a "liberal conception," makes it obligatory to believe that everyone has a "right to the same distribution of goods or opportunities as anyone else has or is given...

...or, if it were used, how Americans escaped an unprecedented reign of terror...

...If we persist in trying to discover on what grounds Dworkin draws such a distinction between good and bad rights, or indeed how he finds any of the rights that he defends, even more remarkable contradictions emerge...