A Matter of Principle
Dworkin, Ronald
.......................................................................................................................................................................... BOOK...
...Wanting a swimming pool because one likes to swim counts as a personal preference...
...But Dworkin's chief argument for civil disobedience is that even though the court has the last word and we must generally obey its decisions for "practical reasons," we are entitled "to reserve the right to argue that the law is not what they said it is...
...Even if Aquinas is taken to advocate that a subject should disobey unjust laws, what matters is that Aquinas considers unjust law to be law...
...The former exists where there is a preamble stating the purpose of the act, and though he argues 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...
...By describing rules of law as ways of achieving "goals," Dworkin suggests that they assign advantages...
...Booklist (Starred Review) "Unmistakably the work of an intellectual...
...Since there cannot be any "pertinent collective understanding" where there is no "institutionalized intent," there are only two competing justifications for the act...
...Someone who accepts a religious point of view will probably have a different theory of art from someone who does not, and re-cent critical theories have made us see how far interpretive style is sensitive to beliefs about meaning, reference and other technical issues of the philosophy language...
...NYS residents add applicable sales tax...
...But no one is likely to be troubled by liberty...
...the focus shifted from the guilt or innocence of the defendant to whether the police had played by the rules...
...The defensive tack taken by Bird and her supporters is to portray the court's liberal majority as the beleaguered defenders of the Constitution, courageously resisting an opposition motivated by the desire to "politicize" the court...
...In Dworkin's 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...
...No matter how heinous the murder or how blatantly guilty the defendant, Bird has always found some evidentiary error or prejudicial jury instruction to justify reversal of the penalty, if not the conviction...
...Professor Dworkin claims that his theory has the virtue of restoring to law a moral dimension that is ignored by the narrow prevailing theory...
...tion with the New Right" does and The moral is not that the judge has to should count "in deciding which is the see the law as a whole but that any in- best interpretation of a work of art," terpretation of a legal practice must so must political convictions determine show "its point or value" in "political our interpretation of law...
...The 220 pages contain facts never before disclosed...
...He has reduced law to an instrument for redistributing power...
...But there is no such necessity...
...The majority who pass or sustain laws that order those found guilty of rape or murder to be punished are hardly likely to take a flattering view of the minority of criminals...
...Tucker cannot conclusively prove a causal connection between the rise in crime and the judicial and social trends of the sixties, but he offers some compelling evidence...
...Mary Jo Kopechne did not die from drowning...
...Only by making political decisions can the court call "some issues from the battleground of power politics to the forum of principle...
...Although Dworkin modestly does not claim to have refuted such skepticism, he is certain that no one has yet proved it...
...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...
...And Dworkin accordingly insists throughout that judges must make "political decisions...
...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...
...And this undoubtedly justifies Dworkin's claim that his theory corrects "the majoritarian bias of democracy...
...In doing so, it is not displacing a congressional decision but supplementing it...
...Thus Dworkin concludes that the judge is obliged to invent an intention for the Constitution...
...Just as each author has to construct a unifying conTHE AMERICAN SPECTATOR JANUARY 1986 33 ception of what his predecessors have be taken to serve...
...In a stunning reversal of its steady decline between 1940 and 1960, the crime rate began a spectacular rise in 1963...
...And this makes it clear that all similar restrictions, as for instance on live sex shows, cannot be consistently advocated because they, too, would be treating the audience of such shows as people having worse characters than their fellows...
...ORDERS SHIPPED THROUGHOUT THE U.S...
...Most clearly in trouble is Chief Justice Rose Bird, with one poll showing that only 28 percent of the electorate supports her...
...For example, relatively few cases are thrown out on search and seizure grounds, but the uncertainty created by the confusing and changing rules enunciated by the courts has increased the plea bargaining of felonies down to lesser charges, carrying lighter sentences...
...Restricting pornography thus violates the "right to moral independence...
...The book, 330 pages in a cloth binding and striking jacket, is well illustrated and documented...
...materials...
...He would have us believe that his theory rests on indisputable "moral facts...
...We may even vote against them out of a tender concern for their self-respect...
...It no more sup-ports 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 makes it impossible to explain what atomic fusion is without advocating that atom bombs be made and dropped...
...Neither the aspirations served by the traditional idea of law nor the rational capacities that have enabled the rule of law to flourish appear to have impressed Dworkin...
...That expectation is encouraged by several essays on what Dworkin calls a "theory of interpretation...
...But this aspiration has not led him to follow the practice of traditional philosophers, and of Oakeshott in our own day, of developing their jurisprudence within a systematic account of human con-duct...
...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...
...Anyone who denies that there is a right answer must be defending "some idea of skepticism or of indeterminacy in moral theory...
...Louisville Courier JournalDworkin identifies democracy with the equal distribution of political power...
...In NYS: 716-837-2475 AS 34 THE AMERICAN SPECTATOR JANUARY 1986 What Dworkin's denial of the is/ought distinction implies in judicial practice is demonstrated in his discussion of the Weber case...
...And without stable rules it is impossible to distinguish between authority and power...
...The principle of equal concern and respect appears to be what Dworkin calls a "moral fact" and no more indeterminate or disputable than the fact that all men are mortal...
...It allows, indeed obliges, judges to ignore the law in order to satisfy the wants of minorities...
...All the seamy details of that terrible night when a girl was needlessly allowed to die have now been carefully drawn together for all to read...
...Deadline for submission of essays is March 31, 1986...
...He must be 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...
...Dworkin himself points this out when he says that "rights" have to be defined differently in each case de-pending on the "goal" to be "trumped" and that "liberals will disagree about what is needed...
...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...
...He accordingly commends the reporters in the Farber case for refusing to obey the court's order, even though he believes that the court was right in ordering them to produce their information...
...To: Green Hill Publishers...
...This means that interpretation is determined by a critic's normative beliefs, because theories of art do not exist in isolation from philosophy, psychology, sociology and cosmology...
...Interpretation consists of reading a text so as to reveal it "as the best work of art...
...What then makes external preferences so evil...
...He emphasizes that when his theory requires judges to rely on principles which do not appear in the rule book, it is requiring judges to do what the rule-book ideal prohibits—to legislate and to make what he calls "political decisions...
...And he leaves us in no doubt that the correct theory is "liberalism...
...New York Times $19.95 Out of order Affirmative Action and the Crisis of Doctrinaire Liberalism Nicholas Capaldi Out of Order is the definitive critique of affirmative action...
...What Congress had done is therefore "indeterminate," and the court is obliged to decide onthe fairness of affirmative action...
...But he has reduced his conclusion to a tautology because interpretation has become a synonym for evaluation...
...BOOK REVIEWS...
...Some agree with Prof...
...And this proves that there can be no useful interpretation...
...lb in-sure that everyone is treated with equal concern and respect, the liberal needs a scheme of civil rights whose effect will be to determine those political decisions that are antecedently likely to reflect strong external preferences and to remove those decisions from majoritarian political institutions altogether...
...And so Dworkin written, so the judge has to determine assures us that just as our "commit-what "the point or theme of the prac- .ment to feminism" or our "dissatisfactice so far, taken as a whole, really is...
...And as democratic procedures necessarily reject whatever the losing minority prefers, all just men would have to abandon democracy...
...For the layman, it provides an opportunity to examine the presuppositions and implications of the new attitude to law...
...The notion that the public "has a right to know" is condemned by Dworkin for being "deeply misleading" because "it is wrong to suppose that individual members of the community have, in any strong sense, a right to learn what reporters might wish to discover...
...You're invited to examine "Death .at Chappaquiddick" for 10 days on an absolute, no-strings-attached money-back guarantee...
...By making the distribution of power more unequal, censorship of Marxist publications would damage democracy...
...With the aid of his political theory the judge can find in the law the right answer to "hard cases...
...It examined every aspect of the death of Mary Jo Kopechne in the best tradition of investigative reporting...
...He has to construct "a political theory showing why the Constitution should be treated as law...
...Stanton Evans Los Angeles Times If you are going to read only one book about Chappaquiddick, the best one so far is thebolume by the Tedrows...
...which is independent of some theory about what political equality is and how far equality is required by justice...
...He prefers, however, to define democracy in the manner of the "people's democracies," as a system for maintaining equality...
...P.S...
...But it does oblige us to recognize that any dissent from a critic's explanation of the meaning of a work of art must be due to a different evaluation of its artistic quality...
...But there is also an obvious novelty in the new theory—Dworkin's emphasis on the importance of "normative beliefs...
...Box 738, Ottawa, Illinois 61350 Yes...
...Nor is it surprising that rights and goals should be so easily interchanged, since there is no fixed content for "rights...
...In the 1960s, 90 percent of killers were known to their victims...
...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" which exploits an ambiguity in that notion...
...In this volume, however, he more consistently emphasizes that what matters is the correctness of the judge's political theory...
...That his rights conception cannot serve as an adequate account of theidea of law is also recognized by Dworkin, though not explicitly, in more than one context...
...He takes the only issue about civil disobedience to be whether it is designed to promote a just cause, not whether it is an authorized procedure...
...Procedural rights in 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 forwhat they contribute to democracy...
...He acknowledges that in the West democracy is identified with procedures "defined independently of any description of the decisions actually reached...
...From his principle of equal concern and respect, the liberal derives a number of practical and inescapable conclusions...
...Put simply, Dworkin's dominant thesis in this volume is that what the law is cannot be distinguished from what it ought to be...
...And if he finds that an adequate distribution cannot be achieved within a capitalist economy, Dworkin comforts us with the assurance that the liberal would substitute "socialist for market decisions over a large part of the economy...
...Ammende, a professional humanitarian whose career is markedly similar to that of Raoul Wallenberg a decade later, gathered eye...
...As Professor Hart and others have pointed out, external preferences are nothing worse than disinterested preferences...
...Even if not publishing the story would have made the average citizen worse off, that would still be "a matter of the general welfare, not of any individual right...
...And the insistence on identifying authentic legal decisions in this manner is designed to maintain a sharp distinction between power and authority, because otherwise there can be no security against arbitrary exercises of power...
...It is this relation between rights and the principle of equal concern and respect that ac-counts for Dworkin's insistence on an opposition between "rights" or principles and the "goals" or policies pursued by the majority who vote for legislation...
...And that is where the hope for the future lies, because it promises that the deepest, most fundamental conflicts between individual and society will once, someplace finally become questions of justice...
...But the "rights" ordinarily associated with the rule of law emerge out of established legal rules which define conditions to be observed...
...As the price paid by offenders for their conduct diminished, the effects that economic theory would predict appeared...
...Kaminsky "writes superbly, mastering her grief and fury, channeling them into a passionate, intelligent, searing indictment of a society she feels cares more for criminals than their victims...
...And that is how he reconciles his "one right answer thesis" with his new theory...
...And, on the other hand, if the "ordinary interests of the people through a theory of justice" can provide the grounds for laws against rape and murder, why should not the same grounds serve for other laws...
...it belongs in every collection of books on the U.S.S.R...
...He acknowledges one good argument against prohibiting censorship, that it would reduce the power of ademocratically elected legislature and hence of the majority to decide the conditions of their life...
...Tun New Releases from Prometheus The Victim's Song Alice Kaminsky In The Victim's Song, an English professor whose son was brutally slain in a New York City subway describes her trauma and offers a provocative defense of victims' rights...
...As Tucker points out, there is little evidence that vigilantism is currently either a widespread or a growing phenomenon...
...the "interpretation of law is essentially political...
...we make it available with the hope that the lesson of the Ukrainian Famine will not be lost on our times...
...punishment and individual responsibility fell into disfavor...
...The judge cannot discover those principles by "finding the law just `there' in history...
...Herbert Hart's criticism says all that needs to be said: A notion of equal concern and respect, hospitable to such violently opposed interpretations, does not seem to me to be a single concept at all...
...If you decide the book is not an invaluable investment, just return it within the 10 days, and we'll refund your $9.95 in full, no questions asked...
...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 have more because "his father had superior skill or luck...
...William Tucker contends the public has a right to expect courts to reinforce people's sense of right and wrong...
...Publishers 2969 West 25th Street — Cleveland, OH 44113 Phone: 216-241-7640 - - Telex: 298256 ZUBAL UR Please send copy/copies of Human Life in Russia to: NAME: STREET ADDRESS: CITY/STATE/ZIP: My check in the amount of ($13.95 per copy) plus $1.85 postage per copy is enclosed...
...His 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 [italics added...
...But they have overlooked the radical nature of his denial because they believe that traditional natural law theory also rejects the is/ought distinction...
...Tucker persuasively argues that the Warren Court's emphasis on the rights of criminal defendants and its disregard for the consequences to law enforcement, and, therefore, to the general public, contributed substantially to the soaring crime rate between 1963 and 1980...
...And what arouses public interest is not the legal quality of their decisions but whom they have pleased or offended, whether they have satisfied blacks or whites, employers or unions, the Moral Majority or Feminists...
...Whether the lucky minorities would be rapists, vegetarians, or Communists remains somewhat unclear...
...The person engaged in civil disobedience is doing the same thing as the Supreme Court does when it strikes down legislation as unconstitutional preventing the majority from abusing its power at the expense of the minority...
...That is why all the opinions about the equal protection clause in the Constitution are either "distinctly liberal or radical or conservative...
...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 right...
...I THE AMERICAN SPECTATOR JANUARY 1986 35 there only one political theory or many...
...This is illustrated in Dworkin's discussion of whether Marxist publications should be censored, which he describes as a procedural question...
...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...
...Is Announcing .. . A Major Work on Genocide & Terrorism in Ukraine: Ewald Ammende's Human Life in Russia is the long unavailable history of the "Hidden Holocaust" and the cover-up which prevented news of the starvation of nearly 7,000,000 Ukrainians from being reported in the West during 1931-1934...
...The citizen is no more obliged than the judge to make this distinction...
...Similarly, two-thirds of rapists are completely unknown to their victims, when in 1967 only about half were...
...Jeffrey Hart, National Review 'A spate of books on the Chappaquiddick incident have recently appeared...
...Here Dworkin repeats an earlier comment on the impropriety of the judges in the Fugitive Slave cases who, though known to oppose slavery, held that the law required the fugitive slaves to be returned to their masters...
...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...
...Whereas one terms...
...Nevertheless, liberalism is not a form of skepticism...
...But he also sanctions "non-persuasive strategies" and opposes prosecuting the transgressions that they entail because it is wrong to suppose that "if someone has broken the law for whatever reason and no matter how honorable his motives, he must always be punished because the law is the law...
...Since everything in a democracy is decided by the votes of the majority, the only way to protect minorities against such double counting is to give their "rights" precedence over the goals of the majority...
...His view of law has therefore to be constructed from fragments presented in different contexts, and the reader gets little help in this archaeological expedition from Dworkin's introduction...
...In the same way, the liberal would modify representative democracy...
...To a large extent, the costs have remained hidden...
...The Supreme Court cannot take refuge in procedural arguments based on "the intention of the framers...
...What supports this conclusion is Dworkin's contention that all interpretation rests on "normative beliefs...
...Ads to sell books are supposed to go into enormous detail, lavish praise, long descriptions...
...It is rendered plausible by something that Dworkin mentions only parenthetically, that "normative beliefs" include every sort of presupposition, theoretical and practical, intellectualand moral...
...Each chooses whatever interpretation of accident law strikes him as "a sounder principle of justice...
...for is enclosed...
...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...
...Check or Money Order for - 59 95 plus 95e postage and handling is enclosed...
...today 30 percent of murders are "stranger" killings...
...Freudian psychotherapists, most notably Karl Menninger, argued that criminals were "ill" and that punishment was therefore a crime...
...The opposition between rights and goals carries an echo of the traditional view that the law ought to set conditions for everyone to observe, not assign satisfactions to anyone, just as the rules of a game do not assign points or decide who should win...
...Unfortunately, his fundamental moral principle is either empty or highly disputable, and he connects law with morality only by rejecting the Iogical distinction between "is" and "ought...
...My check/M.O...
...But if injustice consisted, as Dworkin teaches, in denying satisfaction to the preferences of a minority, then a tyranny which prohibited all publications or all sexual relations would be preferable to a democracy that censored pornography or restricted homosexuals...
...Indeed democracy as we know it presupposes that we can and should respect those with whom we differ...
...Not many conservatives would agree, but according to Dworkin they believe that they know what a good life is and expect the government to promote it...
...Aristotle, for instance, gave as an important reason for preferring to be governed by stable rules of law that they were made when the circumstances in which they would take effect were unknown and therefore they would not be distorted by attempts to satisfy any particular preferences...
...A S X17 A C 4 P.O...
...Although it peaked in 1980 and has since inched downward, the incidence of violent crime is today twoand-a-half times what it was in 1960, and property crimes have almost tripled...
...It is no longer assumed that judges are obliged to interpret the law as it stands regardless of what they themselves prefer...
...Homosexuals are then being denied "equal concern and respect" and they are therefore being deprived of their "rights...
...If he regards education as a matter of fundamental interest, he will find racially segregated schools un-constitutional...
...I call it law...
...And therefore, whatever the judge does, he cannot be neutral...
...By treating Rehnquist's attention to what the words of the statute meant as an effort to scrutinize the psyche of the legislators, 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 attempts to interpret the established law...
...But instead of taking this to be a definition of the rule of law, Dworkin argues that it is only one way of understanding law, which should be rejected and replaced with his "rights conception...
...Vincent, Italy, August 31-September 6,-1986) The Garvey Fellowships will be awarded for the three best essays on the topic "THE ECONOMICS AND PHILOSOPHY OF LIBERTY" Essays of not more than 5000 words may be submitted by students or young faculty members 35 years of age or younger, who are not members of The Mont Pelerin Society...
...And against the possibility of discerning an author's intention, Dworkin draws on arguments that have long been familiar in literary criticism...
...In the Western democracies, and certainly the United States and Britain, the rule of law is still taken for granted...
...In Dworkin's world that appears to be impossible...
...In general Dworkin regards civil disobedience as a laudable "exception of some kind to majority rule," the legitimacy of which is well established by the power of judges to hold legislative acts unconstitutional...
...And certainly if, as he insists, the principle of equal concern and respect encapsulates all of morality, then human life is nothing but a struggle for power...
...It is terse, brief, and covers everything...
...Human Life in Russia has long been unobtainable...
...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 fade 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...
...It is a sustained and comprehensive examination of the historical, legal, political, sociological, economic, moral, and philosophical dimensions of an issue that has tested the national conscience for two decades...
...SAME DAY PAYMENT IS RECEIVED ORDERS TO OTHER COUNTRIES SENT BY POST...
...In reality, however, the intention of a law is not something "waiting to be discovered even in principle" but something "waiting to be in-vented...
...The answer is suggested by his discussion of procedure...
...By equating "normative beliefs" with every sort of presupposition, Dworkin makes it impossible to distinguish interpretation from evaluation...
...None of this establishes that laws against rape and murder do not deny equal respect to a minority in the same way as laws restricting pornography...
...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...
...Whether there are "no right answer cases" is not then "an ordinary empirical question...
...As a good example of the necessity for such invention, Dworkin offers the equal treatment clause, which guarantees equal treatment without regard to race in matters touching people's fundamental interests...
...In this context, preventing the CIA agent from publishing his information is condemned by Dworkin for violating "the rights of those who want to listen to what Snepp wants to say...
...Is a political theory an interpretation of the law as a whole which seeks to establish the most consistent line of argument in past statutes and decisions, or is it a construction of the law designed to satisfy certain moral requirements regardless of its fit with the "legal materials...
...The prison population decreased and court decisions effectively abolished the death penalty...
...He shows, for example, that such currently popular explanations for the crime rate as demographic changes or poverty are inadequate...
...Illinois residents add 5% state sales lax Charge to ^ Mastercharge ^ BenkAm¢ncard Account no Expiration date name address city state np_ ~r~~tillllll~~~ THE AMERICAN SPECTATOR JANUARY 1986 39 "to make their protests in language appropriate to their sense of occasion...
...Or charge (check one) 0 VISA 0 MasterCard Account # Exp...
...Finally, we are left in no uncertainty what-ever that Dworkin rejects the traditional insistence on the separation of powers between judges and legislators...
...When, for in-stance, a majority votes against allowing homosexuals to pursue their sexual tastes, the majority are declaring, Dworkin says, that they consider homosexuals to be of inferior character and unworthy of respect...
...The "right to listen," Dworkin says, is "part of the right to participate in politics as an equal...
...BY U.P.S...
...Any doubts about whether Dworkin's emphasis on rights implies that established rules of law should be ignored are definitively settled by the leading essay in this volume, originally a lecture to the British Academy, on "Political Judges and the Rule of Law...
...If there can be more than one political theory, are they all equally objective and desirable...
...just but on whether it has been duly authorized and is "authentic...
...Wanting a swimming pool because one thinks that it would be good for someone else is an external preference...
...Dworkin, however, has no use for procedural considerations of any kind...
...Yet Tucker is careful not to overstate the case against the courts, identifying other influences at work in the sixties...
...enabling minorities, who cannot persuade their fellow citizens to agree with them, nevertheless to impose their will...
...That his doctrine is designed for a different purpose, however, is evident from his contention that "liberty" is not a right, that liberty should always give way to "equality," and that injustice consists wholly in a denial of equality, not liberty...
...In a recent interview, Bird accused her opponents of wanting a chief justice "who would pass all their litmus Mary Mainland is a lawyer in Stanford, California...
...Sociologically oriented criminologists espoused the view that criminals were sufficiently "different" that they could not be deterred by the threat of punishment...
...Letting the public listen to someone who has in-formation that they would like to hear is declared to be "distinctly not a mat-ter of policy: It is not a matter of protecting the majority will or of securing the general welfare over the long run...
...Dworkin found that decision, like Burger's dissent, "perplexing" and accused the judges of holding an inadequate theory of jurisprudence because they decided contrary to their own moral convictions...
...In short, if Dworkin's rights 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...
...Four of the five justices who constitute the court's liberal majority will be on the ballot for reconfirmation and all four are en-countering vigorous opposition...
...Despite overwhelming passage by the voters in 1978 of a death penalty initiative, there have been no executions in the state since 1967, and Bird has become the chief symbol of the court's consistent refusal to permit any...
...Although the argument that pornography is inferior as literature or encourages crime hardly shows respect for its readers, Dworkin says that it does not deny "the right to moral in-dependence...
...Despite Dworkin's generous contributions to professional and popular journals, conferences and lectures, just how the "rights theory" understands the law has remained a mystery...
...Since deciding cases is essentially a matter of moral judgment, whatever indeterminacy there appears to be in the law must be due to an "indeterminacy or incommensurability in moral theory...
...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...
...But that does not seem to worry Dworkin...
...Since normative beliefs shape interpretation, we cannot separate interpreting a work of art from "evaluating" it...
...2 3 M BLOOMINGTON, INDIANA WGTC, 1370 AM BLOOMINGTON, INDIANA WAJI, 95 FM, FORT WAYNE, INDIANA CORPORATE OFFICE, BOX 62, BLOOMINGTON, INDIANA 47402 TELEPHONE 812 332 7251 36 THE AMERICAN SPECTATOR JANUARY 1986 Dworkin's reformulation of his theory of interpretation and his discussion 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...
...She claims she would do so in a "constitutionally proper" case, but the likelihood that such a case will be among the more than 160 death penalty appeals pending seems remote...
...But in fact preventing heterosexuals from voting would be a gross violation of one man, one vote...
...His distinction between "institutionalized intent" and "collective understanding" only re-enforces the circularity of the argument that he uses to deny that what the law is can be distinguished from what it ought to be...
...We are therefore obliged to recognize that there is no longer a flat distinction between interpretation conceived as discovering the real meaning of a work of art, and criticism, conceived as evaluating its success or importance...
...In short, liberalism is a synonym for justice, and a judge who decides in accordance with liberalism is necessarily doing what is just...
...they accosted him...
...Written in an anecdotal, journalistic style, its argument against the judicial philosophy exemplified by the U.S...
...But the point of such stipulations 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...
...Moreover, the nature of crime has changed in such a way as to heighten the public's sense of insecurity: Not only is it more brutal, it seems more senseless and random...
...They are simply any preferences that the majority does not share...
...That distinction is so important because the purpose of law is to protect the members of a civil association against arbitrary impositions by distinguishing between authority and power...
...witness testimony on the Famine as a means of exposing the awful truth of the genocide and terrorism then occurring in Ukraine...
...Indianapols News $17.95 O The Victim's song $19.95 ^ Out of Order $17.95 Add $2.00 for postage and handling...
...Therefore different interpretations are due to differences in normative beliefs...
...These rights are "abstract" because they are not defined by statutes or past decisions, but they are nonetheless objective and as in-disputable as the principle of equal concern and respect...
...They must, in other words, legislate in accordance with their idea of what is right...
...SARKES TARZIAN INC WRCBANNE'3 CHATTANOOGA TENNESSEE KTVN...
...Here he plainly presents his theory as an alternative to the "rule-book ideal," which Dworkin describes as the belief that the power of the state should never be exercised against individual citizens except in accordance with rules explicitly set out in a public rule book available to all...
...Besides, Dworkin introduces an instrumental argument, such as he elsewhere rejects, that it makes no sense to punish someone unless it "will do some good, on the whole, in the long run, all things considered...
...Those who pretend to be respectful of the text of the Constitution by engaging in "semantics" (Dworkin's description of arguing from what the Constitution says) are really displaying their indifference to the text because they are not concerned with "the `point' of having a Constitution or why the Constitution is the fundamental law...
...Teddy Kennedy.' —M...
...he announces that he wishes to promote a radical revision of the idea of law...
...Our great statesmen and philosophers have all argued that the proper basis for deciding what laws are desirable is not the preferences or interests of anyone but a concern for the community as a whole, what has been called the res publica, the common good, or the public interest...
...Whatever the merit of Dworkin's conclusions about these cases, his use of the distinction between "rights" and "goals" in reaching those conclusions demonstrates how easily every issue can be turned into a question of either...
...He repeatedly denies 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...
...People may disagree about how crimes should be defined and what penalties should be imposed, but since moral harm is an objective mat-ter and not dependent upon particular people's perception of moral harm, no one will think that the majority's decision is unfair in the sense that it is more in the interests of some than others...
...it is bound to make "important political decisions...
...They are determined by the preferences of the minority...
...Liberals have no such pretensions...
...Indeed, if Dworkin were true to his argument, he should now be championing not the rights of pornographers or homosexuals but of those who advocate the restrictions that have been removed by a majority vote in the legislature, since they have thereby become the minority...
...He pronounces it "useless" to maintain that they should have obeyed and then contested the order later by legalmeans...
...And they arise as a correction to thelikelihood of a majority vote that would prevent the satisfaction of the minority's preferences...
...Any other kind of argument, such as the "goal-based strategy" of the Williams Report in Britain, is vulnerable to being defeated by the charge, which may well be true, Dworkin concedes, that "the attitudes about sex displayed or nurtured by pornography are demeaning or bestial or otherwise unsuitable for human beings of the best sort...
...Whatever its derivation, it is the opposite of "conservatism...
...a justice system that fails to do so encourages those with criminal tendencies and demoralizes the law-abiding majority...
...He denies that what makes the Constitution law is that it was accepted by the people in accordance with "the procedures stipulated in the document itself...
...The courts should show not outrage but courtesy and even gratitude to people like Myron Farber, who act at personal sacrifice to provide the constant judicial review that is the constitution's last protection...
...Rehabilitation and treatment came into vogue...
...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...
...The liberal therefore expects the government to intervene to redistribute goods...
...If not, what is the criterion for choosing the best one, and what renders that criterion acceptable...
...It kept me up most of the night reading it to the last page...
...He says, for in-stance, that it is both unnecessary and too crude to look to rights for the only defense against either stupid or wicked political decisions...
...Ronald Dworkin's "rights theory...
...In the almost forty capital cases she has considered during her eight years on the court, not once has she voted to affirm the death penalty...
...NOTE: Ohio residents must add .91 sales tax per copy...
...Generally, such discussions advocate arrangements that reduce the occasions on which it becomes necessary to make public decisions about which preferences should have precedence...
...Dworkin advocates that, regardless of what the law requires, a person whose motives are superior should not be treated like an ordinary criminal...
...The relation of this theory to the "one right answer thesis" is at first sight puzzling since the latter, too, is an explanation of how judges reach their decisions...
...And if, as Dworkin suggests, that has not been his aim, what is his purpose in teaching that all judicial decisions are political decisions, and that the "rule-book conception" of law should be abandoned...
...PROFESSOR OF LIBERAL LA W A MATTER OF PRINCIPLE Ronald Dworkin/Harvard University Press/$25.00 Shirley Robin Letwin One of the few genuine novelties of our time is a new attitude to law...
...Italics added] His principle of equality leads the liberal to oppose also any restrictions on pornography...
...In fact the Constitution is law because the people accept the principles of political morality that it em-bodies...
...But as there are no God-given majorities or minorities and today's minority might be tomorrow's majority, the content of rights is bound to shift with every change in public opinion...
...Whereas the "one right answer thesis" emphasized the completeness of the law, the new theory of interpretation says explicitly that judges cannot interpret the law as it is but must necessarily decide what it ought to be...
...And he sees procedure as a means for achieving equality in power...
...tests," and declared, "My role isn't to be popular...
...But as we can never know that it is the only motive that in-spires the opposition, the "impact of adverse moral convictions can be neither excluded nor measured...
...Only one weak ground for restriction is acknowledged by Dworkin, that "the damage done to those who are affected adversely is not serious damage, even in their own eyes...
...If that were true, denying the vote to heterosexuals would eliminate the double counting...
...Decisions such as Miranda and Mapp, the 1960 case that made the exclusionary rule applicable to state prosecutions, made it more difficult and more costly to convict theguilty...
...Vincent meeting Third prize Garvey Fellow award of $1000 + $1000 travel grant to participate in the Society's St...
...In fact, nothing of the sort can be found in the classical exposition of natural law by Aquinas...
...When he requires that law be properly promulgated, he establishes a criterion for what law is independently of any judgment about its desirability...
...Vincent meeting Second prize Garvey Fellow award of $1500 + $1000 travel grant to participate in the Society's St...
...He usefully reminds readers that vigilantism has historically arisen when law enforcement was nonexistent, in-competent, or corrupt, leaving the public little choice but to take the law into its own hands...
...Dworkin argues that the issue is not about "rights" but only about "policy'?—whether the public would be better off if reporters had special privileges...
...My role is to be just and follow the law...
...But there has been a radical change in the conception of a judge's duty...
...As such, his work is one of the earliest histories of the Gulag, wherein the .Archipelago consisted of an entire nation to be punished for its opposition .to totalitarianism...
...It solves the problem of what actually happened...
...Otherwise, free speech would not have "the same value to them as it has to a member of the bourgeois establishment...
...They suppose that the Constitution is law because it "was accepted by the people in accordance with the procedures stipulated in the document itself...
...Rehnquist made the mistake of assuming that he could choose between such justifications without making a political judgment...
...Each judge constructs his own theory without regard to other judges and relies on "a theory of mistakes" to dispose of whatever does not fit into the general pattern...
...a welcome change from the cant about crime...
...Whereas Dworkin condemns the court's decision in the Bakke case, because they faced the same issue but refused to resolve it, he praises the Weber decision because the majority recognized rightly that they were confronted not with an exercise in reconstructing the mental states of a variety of senators and congressmen, but a serious and complex issue about the nature of discrimination and the fairness of affirmative action...
...Whatever its merits, the principle of equal concern and respect cannot bear the burden that Dworkin puts upon it...
...That followed from his doctrine that the law includes not only formal rules and decisions but also all those principles of fairness and justice which can be inferred from such Shirley Robin Letwin is the author of Modern Philosophies of Law, The Pursuit of Certainty, and The Gentleman in Trollope: Individuality and Moral Conduct...
...Buffalo, NY 14215 Call Toll Free: 800-421-035...
...It remains to consider whether the principle of equal concern and respect, from which Dworkin deduces the one right political theory of liberalism, is, as he supposes, indisputable...
...EVERY YEAR OR SO ff DOES YOU GOOD TO READ SOIIIIMING THAT VIM MAKE BLOOD BOR...
...Instead, liberalism seems to be an emanation from American public opinion since the thirties or perhaps from the U.S...
...Strong support for this change has come from the professional law journals, and especially from Prof...
...The new volume should settle the issue...
...Others have found that Dworkin radically in-creases the judge's power to legislate and thus introduces greater uncertainty into the law...
...Vincent meeting Further information is available from: The Mont Pelerin Society PO Box 7031 Alexandria, Virginia 22307 USA 37 conviction...
...According to Dworkin, the purpose of procedure or "process," as he calls it, is to distribute "political power...
...Ordinarily, interpretation is distinguished from evaluation by the different kinds of presuppositions that each entails...
...Nor does he claim, as he did earlier, to be merely describing the true character of adjudication...
...It's a book you must have on your own bookshelf, preferably toward the front...
...No one has yet suggested that it should be abandoned...
...His theory of interpretation presupposes that all human utterances are instruments for obtaining satisfactions or power, what is called the "ideological view of language...
...Saturday Evening Post "Attorney Richard Tedrow and his son Thomas devastatingly dissect Kennedy's testimony and that of others following the event and counter with contradictory statements made by those involved...
...All opposition to pornography should therefore be "deemed to be corrupted by such convictions," and no restriction of pornography is permissible...
...Anyone who pretends to keep his interpretation distinct from evaluation must, according to Dworkin, be equating the meaning of a work of art with the author's intention...
...A severe scrutiny of the policy of affirmative action...
...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 philosophy of law...
...Adjudication is like producing a novel by a chain of authors...
...They were wrong, but our legal system often gains when people who believe that law and principle are on their side choose not to comply with orders they believe illegal...
...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...
...The echo that it carries of this concern with liberty lends credence to Dworkin's defense of minorities...
...By preventing the CIA agent from publishing, the majority is violating "the right of every potential listener who believes that his own participation in politics would gain, either in effectiveness or in its meaning for him were he to listen to that speaker...
...even the so-called "subway vigilante," Bernhard Goetz, did not fit the definition: He did not seek out the four youths he shot...
...More generally, Dworkin argues that the words of the Civil Rights Act are proved to be indecisive by the fact that the judges disagreed...
...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...
...But he meets that argument with another, that political power would also be reduced, and in a more important way, by censoring Marxist publications...
...and Ukraine...
...And this is what Dworkin claims to have discovered...
...We don't, of course, expect you to take our word for that...
...To answer it, Dworkin produces his "aesthetic hypothesis," that different interpretations spring from different ideas not about what a work of art is but about what it should be...
...If Dworkin's rights are not fixed by being recorded in statutes or judicial decisions, how fixed are they...
...It has, of course, been recognized since ancient times that the purpose of constitutions is to distribute power by deciding who is qualified to vote and to hold office...
...The judge is therefore obliged to decide that one rather than the other description is more appropriate in virtue of the best theory of representative democracy or some other openly political grounds...
...Yet he offers no grounds for Rights swinging in the wind of public opinion can hardly provide a secure ground for judicial decisions...
...That is the only reasonable explanation as well of Dworkin's indifference to the fact, which he himself points out, that his doctrine cannot account for criminal law...
...But as there is no such preamble to the Civil Rights Acts, Rehnquist must mean, Dworkin concludes, "collective understanding...
...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...
...38 THE AMERICAN SPECTATOR JANUARY 1986 distinguishing the minority of criminals from the minority of pornographers or homosexuals...
...A book I could not put down once I started reading it...
...These "rights" are not liberties deemed to be so valuable that no other consideration should be allowed to interfere...
...In his earlier essays, Dworkin concentrated on arguing that there is "a right answer" for every case which leaves no room for the judge to exercise discretion...
...We are obliged to conclude that A Matter of Principle offers no more adequate an explanation of law than did Taking Rights Seriously...
...Here Dworkin repeats his earlier assertion, that there can be no equality of power if "those who object radically to the political structure" are not permitted "The Tedrows make it abundantly clear that the facts of the case were bottled up from the beginning to end, in the interests of protectin...
...Therefore, when he says that "rights" should be "trumps" over "goals," he might seem to be saying that the law should not be used to distribute advantages...
...His external preferences designate what he would like to have assigned to others...
...Dworkin stipulates that civil disobedience should be based on principle or rights and not on judgments of policy or collective goals, and he confines his approval to "integrity-based" and "justice-based" civil disobedience...
...The answer can be found in Dworkin's discussion of two cases where the issue, as he sees it, turns on the distinction between rights and goals...
...Send me the hard-cover Death at Chappaquiddick for 10-day examination...
...By far the most devastating for the Senator is the book by the Tedrows...
...A law or decision is known to be authentic by whether it has been made in accordance with the procedures laid down in established rules of law...
...But as critics have pointed out, the nature of that theory has remained elusive...
...All that would matter then is that there be some objective ground for judicial decisions other than the established laws...
...Instead of giving law a moral dimension by repudiating that distinc-tion, the rights theory makes it impossible to tell an authentic legal decision from an arbitrary exercise of power...
...Vigilante should help stiffen the public's resistance to such moral bullying...
...We'll merely say that Thomas and Richard Tedrow have done an exhaustive job of research, their book is well written, carefully presented, and what you've suspected all along is true...
...And when Dworkin 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 publicopinion to justify imposing the will of whatever minority he chooses to discover...
...If, for in-stance, heterosexuals of a liberal disposition decide the vote in favor of abolishing restrictions on homosexuals, then the vote will have been determined by "external preferences...
...What really sustains his condemnation of counting in external preferences is a wholly different argument—that when people vote on a question and win, they are necessarily saying that the losers are inferior and unworthy of their respect...
...A judicial decision must judge may discover in accident law only demonstrate what is "the best princi- "an attempt to re-enforce conventional ple or policy" that a legal practice "can 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...
...The judge is distinguished from a legislator and obliged to decide what the law is, not what it ought to be, for the same reason that the umpire is obliged to decide on the existing rules without altering them: Otherwise there could be no stable rules...
...They recognize only one moral principle, "that human beings must be treated as equals by their government," which obliges the government to maintain complete neutrality to different ways of living...
...This has already been recognized by those commentators who describe him as a natural law theorist...
...CLIP AND MAIL TO: John T. Zubal, Inc...
...What matters is that they were defending justice: They believed that their rights would have been violated and the principles at stake compromised...
...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 combination of his or her moral and bare interests...
...Reducing the area controlled by public decisions and securing conditions in which individuals can pursue the projects they prefer without interference is the substance of the traditional concern with preserving "liberty...
...Dworkin has endorsed all these conflicting possibilities, sometimes within the same context, but without answering the questions that they raise...
...Although most crimes are committed by males between the ages of 15 and 24, the rise in the crime rate between 1963 and 1980, particularly of violent crimes, far outstripped the increase in the population within that VIGILANTE: THE BACKLASH AGAINST CRIME IN AMERICA William Tucker/Stein and Day/$16.95 Mary Mainland 40 THE AMERICAN SPECTATOR JANUARY 1986...
...The personal preferences or satisfactions of an individual designate goods or advantages that he would like to have assigned to himself...
...He thus establishes that interpretation entails evaluation...
...Demolishes Teddy" —David Brudnoy, Boston Globe TIUSWILLDOIT...
...Supreme Court under Warren and today by Bird and her liberal colleagues is fundamentally a moral one...
...His theory says nothing more startling than that all interpretation rests on presuppositions, which only the most extreme of empiricists would deny...
...In order to make use of these materials, the judge has to formulate a "political theory...
...Constitution...
...Dworkin takes a different view of the right to know in the Snepp case, where a CIA agent, who had agreed in writing not to publish anything without per-mission, published a criticism of the CIA in the Vietnam war without having submitted it...
...Dworkin considers Justice Burger's interpretation of the Civil Rights Act wholly irrational because Burger confessed that he himself approved of affirmative action...
...if not, he will find them to be lawful...
...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 welcome...
...Much of it will be familiar to those who have read political scientist James Q. Wilson and the work of economists and legal theorists associated with the University of Chicago school of economics...
...Achieving greater power is also the only objective that Dworkin considers in his discussion of procedure...
...Here Dworkin introduces a distinction between "personal" and "external" preferences that is familiar from his earlier essays...
...and if he tries to rely on the views of earlier judges, he is only treating them as legislators...
...It might be argued that maintaining the distinction between what the law is and what it should be is of no importance as long as judicial decisions re-main objective...
...But a secret is concealed in the thicket of Dworkin's prose—that "the majoritarian bias" is corrected by Recent polls indicate that in November 1986, for the first time in the state's history, California voters are likely to remove from office a justice of the state Supreme Court...
...Dworkin insists on this in order to establish that the judge cannot interpret law without making "a political decision" just as the legislator does...
...But no one is being allowed to vote twice...
...But he goes further to deny that there is a sharp 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...
...Dworkin takes trouble to deny that he is putting the objectivity of interpretation in doubt...
...Relying on that defense is a compromise, but at least it is "not a compromise" of the right to moral independence...
...When external preferences influence a vote, all that happens is that one person's preferences are being sup-ported by those of another...
...That interpretation has normative presuppositions is no different, he says, from the fact that "what we take a physical object to be must sit well with our theories of knowledge...
...His new book, like his earlier Taking Rights Seriously, is a collection of essays, many of them addressed to events of the moment and published originally in the New York Review of Books...
...It may give rise, he says, to two opposed interpretations, depending on what the judge takes to be a "matter of fundamental interest...
...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 external preferences to determine public decisions...
...The essays will be judged by a panel of three senior members of The Mont Pelerin Society...
...The book's title, however, is misleading...
...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...
...If the theory is designed to satisfy certain moral requirements, how do these become manifest and what renders them objective or indisputable...
...The United States Constitution sanctions such behavior, according to Dworkin, because it recognizes "abstract political rights as legal rights...
...All that the new theory of interpretation really establishes is that Dworkin denies the logical distinction between "is" and "ought...
...This argument demonstrates, Dworkin believes, that questions of procedure cannot be decided without regard to "substantive political questions...
...To explain that ambiguity, Dworkin introduces a distinction between "institutionalized intent" and "collective understanding...
...And nothing that Aquinas says about how law is perfected by the justice of its substance qualifies his recognition of the validity of duly promulgated law...
...Conservative lawyers who pretend to be neutral by using "an author's intentions style of interpreting this clause" are trying to hide the role played by their own political convictions in their "choice of interpretation style...
...But whereas the "people's democracies" aim at an "equal distribution of wealth," "The Tedrows succeed in demolishing Ted's flimsy accounts of the incident...
...But no such argument can win out against the "right to moral independence...
...For when a government prohibits pornography, it is violating the right of pornography lovers not to have their liberty restricted because "their officials or fellow-citizens think that their opinions about the right way for them to lead their own lives are ignoble or wrong...
...He admits, unwittingly, its defects as a moral principle when he says that it can as easily justify the conservative view that a government should pro-mote the good life as the liberal view that it should be neutral...
...He cannot escape choosing between these descriptions by trying to discover the "intention" of the clause...
...Rights swinging in the wind of public opinion can hardly provide a secure ground for judicial decisions...
...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 lawmakers...
...Dworkin goes on to argue that people are not treated with equal concern and respect as long as public decisions 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...
...A crowd of commentators have reached contradictory conclusions...
...Herbert Hart who has described it as an eminent example of the "Noble Dream," the faith (not shared by Hart) that law is never "in-complete, inconsistent or indeterminate'' because "for every conceivable case there is some solution which is already law before the judge decideswhich is awaiting discovery...
...Instead judges are regularly given political labels, such as "conservative" or "liberal...
...THE AMERICAN SPECTATOR JANUARY 1986 First prize Garvey Fellow award of $2500 + $1000 travel grant to participate in the Society's St...
...CHANNEL 2. RENO, NEVADA WITS...
...When modern natural law theorists rest the validity of law on its justice, they depart radically not just from Aquinas, but from all traditional views of law, because they deny that the is/ought distinction is at the heart of the rule of law...
...It is obvious that we can disagree with others for a great variety of reasons...
...When judges decide in terms of "rights" in Dworkin's sense, they are assigning ad-vantages to those denied them by the established rules...
...In the Farber case, a reporter claimed a privilege not to disclose materials gathered during an investigation of a crime which, when published, led to a THE BOARD OF DIRECTORS OF THE MONT PELERIN SOCIETY announce the OLIVE W. GARVEY FELLOWSHIPS for the 1986 GENERAL MEETING OF THE MONT PELERIN SOCIETY (St...
...Date Signature Name Address City/State Zp PROMETHEUS BOOKS 700 E. Amherst Sc...
...It has received unusual attention from lawyers as well as philosophers of law...
...As long as judges confine themselves to deciding whether the stipulated procedures have been observed they will merely be maintaining the existing distribution of power...
Vol. 19 • January 1986 • No. 1
