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Ronald Dworkin:Mr Justice(by Neil MacCormick)

2009年11月14日 发表评论 阅读评论

Ronald Dworkin – Mr Justice

Dworkin’s troubled search for respectful politics, a moral law, and the fundamentals of democracy

The Holberg Prize is the recently established Nobel-type prize for the Humanities. This year’s winner is Ronald Dworkin. His remarkable contributions to the philosophy of law and moral and political philosophy make him a worthy recipient. That opinion receives weighty confirmation from two recent books by him – Is Democracy Possible Here? and Justice in Robes – and two about him – Exploring Law’s Empire, edited by Scott Hershovitz, and Ronald Dworkin, edited by Arthur Ripstein. The latter two are excellently edited and well-presented collections of papers by significant jurists and philosophers discussing and critiquing various of Dworkin’s theses. The Hershovitz book gives Dworkin the opportunity to respond to comments and criticisms.

Some people take the view that law is a normative system that regulates its own creation, a “dynamic” system. Hans Kelsen, the most prominent advocate of that view, contrasted law as a dynamic system with morality, which he considered a “static” normative system. For any great moral principle, like the commandment “Love Thy Neighbour As Thyself”, we need not ask who made it or when – it has a timeless quality. Whenever problems arise, we seek to deduce from the principle an answer to our new dilemma. In law, however, as situations and circumstances change, legislatures make new laws, judges issue new decisions, executive agencies exercise regulatory powers, and so on – all as ultimately authorized by the constitution of the country in question.

With any such legal-positivistic contrast of law and morality, Ronald Dworkin is in deep disagreement. For him, a constitution does not stand apart from moral principles. It is not restricted solely to empowering legislatures, judiciaries, executive officers and agencies. At least in the United States, the Constitution taken together with the “bill of rights” expresses a deeply moral vision of the character of the polity whose constitution it is. The empowering that the Constitution effects is empowerment within a morally defined framework; the dynamic constitution lies within a somewhat more static moral order.

“Deduction” is also, for Dworkin, the wrong term to describe derivation of new guidance from long-held principles in the context of new dilemmas or controversies. What is at stake is a process he calls “interpretation”. This is not simple deduction. The constitution, the law and the rights they enshrine are all what Dworkin invites us to think of as “interpretive concepts”. What they mean is only incompletely disclosed in the raw text of relevant documents, even when one adds to them all the dynamic changes wrought from generation to generation by constitutional amendments and by precedents of the Supreme Court and other like materials.

Out of these raw “pre-interpretive” materials, one must seek to construct the most satisfactory, the most attractive possible, account of the principles that animate the texts and that now bear upon current decision making. It is not so much the basic principles that evolve, but the judge’s or jurist’s understanding of them. With that evolution come new precedents, new pre-interpretive materials for carrying forward the unfolding “chainnovel” of the law.

Any person’s understanding, or even one’s best reasoned-through interpretation, of deep constitutional principles is capable of being controversial. It does not follow that no interpretation is better than any other. The mission of lawyers and theorists of law is always to be seeking the best and most persuasive account of the matters at stake. To get a feel of what this means for Dworkin, one can do no better than to study his own arguments on currently fundamental issues.

In Is Democracy Possible Here?, he proposes two principles that he thinks nearly all Americans would accept, however different their party allegiance and ideological stance. The principles give content to the idea of the equal dignity and worth of every human life. The principle of intrinsic value says that that every human life has intrinsic potential value, and the principle of responsibility says that each person has the responsibility for realizing that value in her or his own life.

From this conception of dignity Dworkin then develops a doctrine of human rights, and of fundamental rights. Fundamental are the human rights that are essential to securing the conditions of dignity. These may be only imperfectly captured in the very words found in Human Rights Covenants or Conventions, or even in constitutional bills of rights. But they underlie and animate the (perhaps flawed) textual formulations, clear of the compromises that led to adoption of the texts in the form they now take.

Given that groundwork, Dworkin takes up the question of how we ought to cope with terrorism. Can it be legitimate to set aside the normal constitutional rights to privacy and to freedom from arbitrary arrest and detention – or from being tortured, in the case of suspected terrorists? Can we balance their rights against the risk to other people’s right to life itself, so as to justify some downgrading of rights of terrorist suspects? With painstaking clarity Dworkin shows how such a preparedness selectively to downgrade protection of fundamental rights offends the deepest principles of the US Constitution, when in turn we read these as concretizing more fundamental principles of human dignity.

The book’s argument continues through issues of religion and dignity. It touches upon whether women have a right to abortion during the first trimester of pregnancy, whether the constitution should be read as requiring permission for physician-assisted suicide, and what is the proper place for religion in a state that accords everyone equal dignity and seeks to guarantee its inviolability. Next up are taxation and liberty, and the question of whether the former necessarily infringes the latter. It does not, if some redistribution of market-earned income and wealth is due as a matter of justice in favour of poorer, weaker, or even simply unluckier citizens. Deploying his celebrated model of a hypothetical insurance market, Dworkin seeks to establish what people would reasonably be prepared to pay in order to insure against misfortunes arising otherwise than from their own failures of responsibility. On this foundation, he persuasively makes the case for a conception of constitutional liberty that includes rather than excludes rights to social insurance against poverty and illness. That refutes the thesis that taxes unwarrantedly cut into liberty.

Finally, he takes up the issue of democracy itself, acknowledging that majority decision-making on a universal and equal franchise is indeed an essential component of it. Yet mere majoritarianism is not the same thing as democracy – the case put here is for “partnership democracy” in which every citizen is collaboratively engaged in the common project of shared self-government on equal terms with all the others. The possibility of partnership depends on the presence of institutions other than majority-elected legislators and executive officials, requiring in particular some kind of judicial agency to protect the common requirements of equal dignity and to insulate these from majoritarian invasion.

On the question of whether partnership democracy is possible in the United States today, Dworkin has at least faint hope. Provided people abandon mutual denunciation and sound-bites and return to mutually respectful debate that starts from fundamental principles, democracy can be saved. Is Democracy Possible Here? is a strong opening statement in this hoped-for debate, from a resolutely liberal stance (see David Dyzenhaus’s paper “The Rule of Law as the Rule of Liberal Principle” in the Ripstein collection). It remains to be seen whether conservatives will join the debate in a like spirit.

Although deeply engaged with issues of democracy and constitutional law, Dworkin has other legal strings to his bow. In Justice in Robes, a recurring example is that of Mrs Sorenson, victim of an illness that was induced by proprietary drugs that she had earlier taken to help cure a different disease. If she cannot now identify which particular drug manufacturer or manufacturers produced the drugs that caused her illness, can she instead sue all of them on the basis of their market share and recover damages proportionally from each according to market share? As a matter of distributive justice and risk-spreading between those who benefit from the production and use of such drugs, and those who bear the burdens of illness caused by them, Dworkin supports the theory of market-share liability.

For him, the arguments – first of counsel, then of judges – in cases such as the 1980 Californian decision in Sindell v Abbott Labs are paradigmatic examples of how to bring a fresh turn to tort law. This is done by exposing the relevance to the current problem of principles of justice that are embodied in earlier law and now await the interpretation that shows their bearing on the problem in hand. This is not moral argument in substitution for legal argument. It is practical legal argument, and for Dworkin that means that it intimately interweaves legal materials and moral concerns in the process of interpreting the proper ground of tort liability in this situation. Such interweaving of different strands of argument is characteristic of good lawyers and good lawyering; it is not a matter of illicit lawmaking by non-legislators. It is omnipresent in law, especially in the “hard cases” that create opportunities for creative reconsideration of the right interpretation of law in one or other of its many branches.

Few philosophers or lawyers write with so easy and engaging a literary style as Dworkin, and the flow of his argument has striking persuasiveness, even if sometimes at the back of one’s mind pangs of dissent struggle to reach the surface. He has revolutionized the way many people think about law and related subjects. Let us consider some of the particular topics he has illuminated.

As is obvious, the nature of legal reasoning and the place of reason in adjudication are omnipresent themes for Dworkin. The guiding idea that he has developed (it is discussed by Hershowitz and Dale Smith in Exploring Law’s Empire) is that of the “integrity” of a political community or polity. The analogy with personal integrity is deliberate. An individual may over time exhibit steadiness in moral judgement and in conduct, gradually developing a more enriched or refined moral sensibility over a lifetime. In parallel, so might a country’s citizens hope for it to have developed a body of law that exhibits steadiness of principle acknowledging the equal dignity of all citizens and framing statutes or laying down precedents that give due expression to the proper regard for individuals and that call for a proper exercise of their own responsibilities through the legal and economic institutions of a free society.

Integrity in this sense requires coherence in legal reasoning, coherence being a virtue of arguments much discussed in recent years, notably for example by Susan Hurley in her wise contribution to Exploring Law’s Empire. Of course, normative coherence is not enough in itself, but even on its own it expresses a concern for justice as reasonable consistency in the like treatment of relevantly like cases. A good judge has also to take careful account of the practical implications, and in this sense the consequences of whatever disposition of an individual case she is invited to consider, and that calls for application of approriate legal values embedded in a legal tradition. There are significant lee-ways of interpretation in such cases, but where the law is genuinely underdeterminate it is very often the case that clearly greater practical reasonableness attaches to one rather than another conclusion that could be said to be legally open. In my view, there is more to be said and there is much to be said at a significantly finer-grained level of detail about legal reasoning than Dworkin has ever said. He is an impressionist, a painter with the broad brush. But the big ideas he deploys have great value for those working closer to ground level.

There used to be many who considered law to be far less determinate than it now seems reasonable to conceive it as being. Triumphantly, Dworkin has scouted legal and moral scepticism in respect of adjudication and judicial argumentation. Nobody engaged in the actual practice of arguing a point is disposed to say that it doesn’t really matter one way or the other, or that the other fellow’s case is as good as one’s own, or that there is just not enough of a legal basis to get any argument going at all. Scepticism about the value of one’s own case within a practical argument carried on in all seriousness is impossible to sustain. It’s just a way of losing the argument. There perhaps remain proponents of “Critical Legal Studies” who strenuously pursue this kind of “internal scepticism”, but as Jeremy Waldron argues in his contribution to Exploring Law’s Empire, the case grows thinner and thinner. Former sceptics of milder hue, like myself, have come round to accepting that there normally is a genuine right and wrong, not just an on-balance individual preference, even in the most closely contested of cases.

“External scepticism” is another matter. This is the term Dworkin uses to characterize those who, from outside a given practice, seek to establish whether or not there are valid grounds for objective judgements applicable to practices of that kind, concluding that there are none. In ethics, we discuss the ingredients of a good life well led. In meta-ethics we discuss whether such judgements can have any objective basis, any grounding in reality. In his latest writing, particularly in the centrally important Chapter Six of Justice in Robes, Dworkin recasts his objection to this in terms of its involving an “Archimedean” approach. For he sees it as seeking to step outside the moral world in order to see it whole and to get leverage upon it. This, he says, is impossible, an illusion. (Arthur Ripstein’s introduction to Ronald Dworkin, a collection of essays, contains an illuminating discussion of the issue.) There is no “external” point of view from which we can see and understand the character of legal or moral reasoning and then adjudicate upon its objectivity or subjectivity. The only way in which that argument can be made is from the inside. External scepticism is vacuous and internal scepticism is radically unconvincing.

“What is the law?” is a question Dworkin considers to arise in any interesting way only within the argumentative practice. It is as though it always arises with a tacit suffix: “What is the law . . . in Mrs Sorenson’s case?” “What is it . . . in Hamdan v Rumsfeld so far as it concerns detention without trial of ‘enemy combatants’?” A sentence commencing “The law is . . . ” should always be read as leading into some practical answer to a practical issue, whether by a lawyer in court or by a judge or by a professor or student in a law school classroom.

On that account, Dworkin says we should re-evaluate work like that achieved by H. L. A. Hart, his predecessor in Oxford as Professor of Jurisprudence. Dworkin is not convinced by Hart’s claim to be giving a descriptive account of the principal features of what we may regard as central instances of law and legal systems. The positivists, he suggests, are more interesting if read as offering legality as an alternative to “integrity” at the core of practical reasoning about law. If they adhere resolutely to their task of description they produce rather vacuous work. What else are they describing? All this provokes a spirited rejoinder from John Gardner – Dworkin’s own successor in the Oxford Chair. The vigorous exchange of fusillades between these two in Exploring Law’s Empire makes good reading, though Dworkin’s intervention is the more persuasive in this particular context. Lately, he has taken to suggesting that there is more than one concept of law. There is a “sociological” concept, which we might use in picking out an interesting fact about Latvia, the United Kingdom and Mexico – they all have legal systems, all have legislatures and courts and similar institutions. This concept is of a kind he calls “criterial”, on the ground that there are ordinary language conventions that set criteria for correctly using the word “law” to refer to noticeable features of some polity or another. But the conventions are vague and the criteria imprecise, and it does not really matter where you draw lines among the family of institutional activities that get called “law”.

By contrast, there is a “doctrinal” concept of law. By this, Dworkin means exactly that interpretive concept that he says we deploy in asking what the law has to say about any urgent question concerning somebody’s rights. The philosophy of law finds its proper business in work with the doctrinal concept, while the philosopher has little that is useful or interesting to say about the sociological concept.

Here the ground under the Dworkinian theory suddenly gets a bit boggy. “One word, two concepts” is always a tricky claim. Law is indeed an omnipresent feature of human interaction, and there are many kinds of law involved. One might explain this as “institutional normative order”, following through with elucidation of what norms are and how they can come to take the form of textually explicit rules or more general principles. Then one needs to reflect on institutions and institutionalization, and on the kinds of relations or relational attributes (“rights”, “duties”, “persons”, “property”, etc) that can be ascribed to people when their situation is considered as legally relevant. In the case of a constitutional state – we have many contemporary examples – how does the law come to be distributed into packages like public law, criminal law and private law; how do these connect to concepts like the state, civil society and the economy? And what part does justice, or a serious aspiration to justice, play in any serious attempt to understand these domains?

These are serious questions, and they are not necessarily questions of sociology. Institutional theory of law pursued within legal studies as a part of the philosophical self-observation of the law connects in fascinating ways with Niklas Luhmann’s “system theory” in sociology, but neither collapses into the other. Legal systems are distinct from, but interactive with, political and economic systems in the greater theatre of state and civil society.

A well-rounded account of law in this institutional conception of it facilitates a genuinely pluralistic and comparative view of different systems and different approaches. By contrast, Dworkin, despite frequent valiant efforts to the contrary, often seems to be extrapolating a fascinating view of one country’s legal and constitutional order on to other countries with different historical development and distinct constitutional orders and legal traditions. Moreover, if law does have an institutional character in the sense intended, then it does always implicate respect for certain values, chiefly justice in one or other of its interconnected senses. That in turn shows why what Dworkin calls the “doctrinal” application of the concept in individual cases or in legislative formulations does indeed make acceptable or even mandatory the kind of appeal to integrity that he has so eloquently championed. The power of his jurisprudence is enormous; but its extent is overstated. There is a larger whole of which it is a distinguished – and Holberg-worthy – part.

Sir Neil MacCormick is Regius Professor of Public Law and the Law of Nature and Nations in the University of Edinburgh, where he has also held a Leverhulme Personal Research Professorship, 1997–2007.

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