A Matter of Principle

RONALD DWORKIN

HARVARD UNIVERSITY PRESS

Cambridge, Massachusetts, and
London, England
Copyright @ 1985 by Ronald Dworkin For My Mother
All rights reserved
Printed in the United States of America
Ninth printing, 2000

Library of Congress Cataloging in Publication Data

Dworkin, R. M.
A matter of principle.
Bibliography: p.
Includes index.
1. Political questions and judicial power—United
States. 2. Law—Philosophy. 3. Jurisprudence.
4. Law and politics. I. Title.
KF380.D85 1985 340'.1 84-25122
ISBN 0-674-55460-4 (alk. paper) (cloth)
ISBN 0-674-55461-2 (paper)
2 Introduction Introduction 3
a free press, on the one hand, and privacy and security, on the other, seems sharper and more carried out or abandoned because of their impact on particular people,
perplexing than ever. e.
even if the community as a wilole Ts in some way worse off in consequence.
Cases at law figure in much of the argument, not as an exercise in legal history or doctrine, butArguments of principle are right-based Because the simple view that law
rather because law gives a special and illuminating shape to political controversy. When political issuesand politics are One ignores this distinction, it fails to notice an important
come to court—as they always do, sooner or later, in the United States at least—then they plead for qualification to the proposition that judges must anddo serve their own po -
decision that is at once discrete and principled. They must be decided at retail, in their full sociallitical - convictions in deciding what the law is Even in hard cases, though
complexity; but the decision must be defended as flowing from a coherent and uncompromised vision judges enforce their own convictions about matters of principle, they -need. lr
of fairness and justice, because that, in the last analysis, is what the rule of law really means. Legal not and characteristically do not enforce their own opinions about wise
analysis, in this broad sense, is more concrete than classical political philosophy, more principled than _
political craft. It provides the right theater for philosophy of government. -
1 have discussed this distinction elsewhere, and it has been challenged in
various ways. Some critics object to the distinction itself; others object to
1-- PART ONE of the book studies the role political convictions should play in the decisions various the claim I just made, that adjudication is characteristically a matter of
officials and principle rather than policy. Their arguments, and my replies, are collected
make about what the law is, andin a recent volume which also includes critical comments on other essays
when it should be enforced and obeyed.ns It rejects the popular but unrealis reprinted in this book.' This book does not return to the argument. Instead
tic opinion that such convictions should play no role in these decisions at it tries to exhibit the practical value of the distinction in various contexts.
ill, that law and politics belong to wholly different and indePendent worlds. Chapter 4 argues, for example, that the case for civil disobedience must be
differently constructed, and that it is subject to different forms of qualifica -
But it also rejects the opposite view, that law and politics are exactly the
tion, when the law or other official decision being challenged is seen as a
same, that judges deciding difficult constitutional case _s are simply voting their personal political
serious mistake of policy than when it is seen as a grave mistake of princi-
convictions as much as if they were legislators or delegates to a new constitutional convention. It rejects
ple. If protests against the deployment of atomic weapons in Europe, for
that crude view on two grounds, each of which furnishes a major theme for the rest of the book.
example, are ordinarily challenges to policy rather than to principle, then
First, the crude view ignores a crucial constraint o_n adjudication. Judges should enforce only political civil disobedience is a very different matter from that directed, in earlier
convictions that they believe, in good faith, Can figure in a coherent eneral interpretation of the legal decades, against unjust wars and racial discrimination.
and political culture of the community Of course lawyers may reasonably disagree about when that test is
met, an very different, even contradictory, convictions might all pass the test. But some could not. judge
who accepts this constraint, and whose own convictions are Maixist or anarchist or taken from some Part Two defends the claim I just mentioned, that legal analysis is funda-
eccentric religious tradition, cannot impose these convictions on the community under the title of law, mentally interpretive, and offers a general account of interpretation to de-
however noble or enlightened he believes them to be, because they cannot provide the coherent general scribe the sense in which this is so. It also considers how this claim bears on
interpretation he needs. an important theoretical issue in jurisprudence. Anglo-American lawyers
have on the whole been skeptical about the possibility of a "right answer"
Second, the crude view obscures a distinction of capital importance to in any genuinely hard case. If lawyers and judges disagree about what the
legal theory, a distinction that is the most immediate reference of the book's title. Our political practice law is, and no one has a knockdown argument either way, then what sense
recognizes two different kinds of -argument seeking to justify a political decision. Arguments of does it make to insist that one opinion is right and others wrong? Surely, so
policy\try to show that the community would be better off, on the whole, if a particular program the common view runs, there are only different answers to the question of
Were pursued. They are, in that special sense, goal-based arguments. Arguments of principle on thelaw and no one right or best answer. Some lawyers who hold that skeptical
contrary, that partiCular programs must be view draw what they take to be conservative conclusions: judges should
defer to decisions made by more representative institutions like legislatures,
and in the case of constitutional law to the decisions made by the Founders
of the constitutional settlement long ago. Others find in this skepticism a
kind of license: if there is no right answer in some lawsuit of constitutional
magnitude, no one has a right that the courts decide in any particular way,
and judges should therefore decide in whatever way seems to them best for
the future of the nation. Part Two argues that this skeptical challenge is al-
tered, and defused, once it is understood that legal argument and analysis is
ONE

Political Judges and the

Rule of Law

TWO QUESTIONS AND TWO IDEALS

This essay is about two questions, and the connections between them. The
first is a practical question about how judges do and should decide hard,.
_ _ _
cases. Do judges in the United States and Gre t Britain make political deci-
.
sions? Should their decisions be political? Of course the decisions that_
judges make mustbe politi6a1 in one sense. In many cases a judge's decision
will be approved by one political group- and disliked by others, because
these cases have consequences for political controversies) In the United
States, for example, the Supreme Court must decide important constitu-
tional issues that are also political issues, like the issue whether accused
criminals have procedural rights that make law enforcement more difficult.
In Britain the courts must decide cases that demand an interpretation of
labor legislation, like cases about the legality of secondary picketing, when
the Trades Union Congress favors one interpretation and the Confederation
of British Industries another. I want to ask , however, whether judges should
decide cases on political grounds, so that the decision is not only the d —eci-
sion that certain politica groups would wish, but is taken on the ground
that certain principles of political_ morality are -rigl A judge who decides
on political grounds is not deciding on grounds of party politics. He does
not decide in favor of the interpretation sought by the unions because he is
(or was) a member of the Labour party, for example. But the political prin-
ciples in which he believes, like, for example, the belief that equality is an
important political aim, may be more characteristic of some political par-
ties than others.

There is a conventional answer to my question, at least in Britain. judges

should notNreach their decisions on political grounds. That is the view of al-
most all judges and barristers and solicitors and academic lawyers. Some ac-
ademic lawyers, however, who count themselves critics of British judicial
practice, say that British judges actually do make political decisions, in
spite of the established view that they should not. J. A. G. Griffiths of the
 10 The Political Basis of Law Political Judges and the Rule of Law 11
London School of Economics, for example, in a polemical book called The fully accepted. On the contrary, politicians sometimes campaign for office
Politics of the Judiciary, argued that several recent decisions of the House of promising to curb judges who have wrongly seized political power. But a
Lords were political decisions, even though that court was at pains to make much greater part of the public accepts political jurisprudence now than
it appear that the decisions were reached on technical legal rather than po - did, say, twenty-five years ago.
litical grounds! It will be helpful briefly to describe some of these decisions. My own view is that the vocabulary of this debate about judicial politics
In Charters and Dockers3 the House of Lords interpreted the Race Rela- is too crude, and that both the official British view and the "progressive"
tions Act so that political clubs, like the West Ham Conservative Club, American view are mistaken._The debate neglects an important distinction
were not obliged by the Act not to discriminate against coloured people. In b-e-fweenitwo kinds argunientSN on which judges might rely in 1
Tameside the House overruled a Labour minister's order reversing a local ,
Conservative council's decision not to change its school system to the com- reaching their decisions. This is the distinction (which I have tried to ex -
prehensive plan favored by the Labour government. 4 In the notorious plain and defend elsewhere) between arguments of =;politicalprinciplptlat
Shaw's Case, the House of Lords sustained the conviction of the publisher appeal to the political rights of individual citizens, and arguments of pOliff- ,,,
of a directory of prostitutes. 5 It held that he was guilty of what it called the cal Polidyc that claim that a particular decision will work to promote some
common law crime of "conspiracy to corrupt public morals," even though conception of the general welfare or public interest. The correct view, I
it conceded that no statute declared such a conspiracy to be a crime. In an Iselieve, is that judges (do rand Shouldhaest their judgments on controversial
older case, Liversidge v. Anderson, the House upheld the decision of a cases on arguments of political principle, but not in arguments of political
minister who, in the Second World War, ordered someone detained with out policy4 My view is therefore more restrictive than the progressive American
tria1.6 Griffiths believes that in each of these cases (and in a great many other view but less restrictive than the official British one.,
cases he discusses) the House acted out of a particular political atti tude, The second question I put in this essay is, at least at first sight, less prac-
which is defensive of established values or social structures and opposed to tical. What is the'rUle of laW? -Lawyers (and almost everyone else) think that
reform. He does not say that the judges who took these decisions were aware there is a distinciVid imp& ant political ideal called the rule of law. But
that, contrary to the official view of their function, they were enforcing a they disagree about what that ideal is. There are, in fact, two very different
political position. But he believes that that was nevertheless what they conceptions of the rule of law, each of which has its partisans. The first I
were doing. shall call the "rule-book" conception. It insists that, so far as is possible, the
power of the state should never be exercised against individual citizens ex -
Soihere are those who think that British judges do make political deci - cept in accordance with rules explicitly set out in a public rule book avail-
sions. But that is not to say that they should. Griffiths thinks it inevitable, as able to all. The government as well as ordinary citizens must play by these
I understand him, that the judiciary will play a political role in a capitalist public rules until they are changed, in accordance with further rules about
or semi-capitalist state. But he does not count this as a virtue of capitalism; how they are to be changed, which are also set out in the rule book. The
on the contrary, he treats the political role of judges as deplorable. It may be rule-book conception is, in one sense, very narrow, because it does not stip -
that some few juAges and academics—inCluding perhaps Lord Justice Denning ulate anything about the content of the rules that may be put in the rule
—do think that judges ought to be more political than the conventional view book. It insists only that whatever rules are put in the book must be fol -
recommends. But that remains very much an eccentric—some would say lowed until changed. Those who have this conception of the rule of law do
dangerous—minority view. care about the content of the rules in the rule book, but they say that this is
Professional opinion about the political role of judges is more divided in a matter of substantive justice, and that substantive justice is an indepen -
the United States. A great party of academic lawyers and law students, and dent ideal, in no sense part of the ideal of the rule of law.
I shall call the second conception of the rule of law the "rights" concep-
even some of the judges in the prestigious courts, hold that judicial decisions
-
are inescapably and rightly political. They have in mind not only the grand
tion. It is in several ways more ambitious than the rule-book conception. It
constitutional decisions of the Supreme Court but also the more ordinary
civil decisions of state courts developing the common law of contracts and as us mes that citizens have moral rights and duties with respect to one an-
tort and commercial law. They think that judges do and should act like leg- other, and political rights against the state as a whole. It insists that these
islators, though only within what they call the "interstices" of decisions al- moral and political rights be recognized in positive law, so that they may be
. enforced upon the demand of individual citizens through courts or other ju-
- - - -
rehat is not a unanimous view even among dicial institutions of the familiar type, so far as this is practicable. The rule
sophisticated American lawyers, nor is it a view that the public at large has of law on this conception is the ideal of rule by an accurate public concep-
 68 The Political Basis of Law The Forum of Principle 69

tion is often justified, sometimes sincerely, on the proposition that blacks My reservations extend, I should add, to Ely's paradigm example of im-
are better off "in their place" or "with their own kind.") He is right, how- proper judicial review, which is the case of Roe v. Wade." But here the
ever, in supposing that a utilitarian justification of laws against homosexuals issue is more complex. What are the available justifications for prohibiting
does not leave their interests "out of account" or value them negatively. It abortion in, say, the first trimester? If we rule out as medically unsound the
counts the damage to homosexuals at full value, but finds it outweighed by idea that abortion is a threat to the mother, then two main justifications
the interests of those who do not want to associate with practicing homosex- come to mind. The first appeals to the moral opinions of the majOrity, with-
uals or who find them and their culture and lives inferior. But a utilitarian out assuming that these are sound. But if we believe that counting such
justification of racial discrimination does not ignore the interests of blacks preferences as a justification for constricting liberty denies equality, then
or the damage discrimination does to them. It counts these at full value and our theory condemns this justification as unacceptable. The second appeals
finds them outweighed by the interests of others who do not want to associ- to the interests of the unborn. If unborn infants are people, whose interests
ate with blacks, or who find them and their culture and habits inferior or may properly be counted by a legislature, then this second justification is
distasteful. The two utilitarian justifications are formally similar, and noth- sound and passes the test of equal representation. But the Court must de-
ing in Ely's argument shows why it offends the proper conception of democ- cide that deep and undemonstrable issue for itself. It cannot refer the issue
racy to permit the one but does not offend it to permit the other. whether unborn infants are people to the majority, because that counts
their moral opinions as providing a justification for legislative decisions, and
Nor does his general distinction between process and substance provide this is exactly what our theory of equal representation forbids. (Nor, for the
the necessary distinction. We must ask why a process that counts racial same reason, can it either delegate that question to the legislature or accept
prejudice as a ground of legislation denies equal representation, and then whatever answer the legislature itself offers.) I am not arguing (now) in
ask whether our explanation has the further consequence of also denying a favor of either view about abortion, or that Roe v. Wade was correctly de-
role to popular convictions about private sexual morality. In various places cided. I insist only that incanting "process" or "democracy" or "representa-
I have argued, along the following lines, that the only adequate explanation tion" is neither here nor there. All the work remains to be done.
does have that consequence. Legislation based on racial prejudice is uncon-
stitutional not because any distinction using race is immoral but because
any legislation that can be justified only by appealing to the majority's pref- THE FORUM OF PRINCIPLE
erences about which of their fellow citizens are worthy of concern and re-
spect, or what sorts of lives their fellow citizens should lead, denies We have seen an extraordinary amount of talent deployed to reconcile ju-
equality.47 If I am right, then constraints on liberty that can be justified only dicial review and democracy. The strategy is the same: to show that proper
on the ground that the majority finds homosexuality distasteful, or disap- • -- •
proves the culture that it generates, are offensive to equality and so incom- judicial review does not require the Supreme Court to displace substantive
legislativejudgments with fresh judgments of its own. The tactics are
differ,
patible with a theory of representation based on equal concern and respect.
It does not follow that no legislation about sexual behavior is permitted. ent. One program argues thatthe Couit can achieve just the right level of
Laws against rape, for example, can be justified by appealing to the ordi- constitutional supervision by relying on the "intention" of "the Framers."
nary interests of people generally through a theory of justice that does not Another that the Court can avoid trespassing on democracy by policing the
rely on popular convictions. But I do not think that laws forbidding consen- processes of democracy itself. Both these programs are self-defeating: they
sual homosexual acts can be justified in that way. embody just the substantive judgments they say must be left to the people.
The flight from substance must end in substance.
I do not propose to reargue my case for these various claims here. 48 But if If we want judicial review at all—if we do not want to repeal Marbury v.
Ely continues to reject my argument, he must provide a theory of equality Madison--then we must accept that the Supreme Court must make impor-
that is superior. It remains to be seen what theory he can provide. But in tant political decisions. The issue is rather what are in itshands,
any case, his theory must be based on some claim or assumption about good reasons. My own view is that the Court should make decisions of prin-
what rights people have as trumps over an unrestricted utilitarian calcula- Ciple rather than policy decisions about what rights people have under
—

tion, and what rights they do not have. So even if he is able to produce a Our constitutional syStein rather than decisions ab-Out how the geneill-Wel:
theory justifying his distinction between racial prejudice and moral popu- fare is best promoted—and that it should make these decisions by elaborat-
lism, he will have abandoned his main claim, that an adequate theory of ju- ing and applying the substantive theory of representation taken from the
dicial review need take no position about such rights. root principle that government must treat people as equals. Whether I am
70 The Political Basis of Law The Forum of Principle 71

right in this, and what it means, are questions for legal and political theory, be so sensitive to principle without the legal and political culture of which
and it is these questions I think we should address. judicial review is the heart. Nor would the public they represent read and
Should we nevertheless accept all this with regret? Should we really be think and debate and perhaps even vote as they do without that culture.
embarrassed that in our version of democracy an appointed court must de - Learned Hand warned us that we should not be ruled by philosopher-
cide some issues of political morality for everyone? Perhaps—but this is a judges even if our judges were better philosophers. 50 But that threat is and
much more complex matter than is often recognized. If we give up the idea will continue to be a piece of hyperbole. We have reached a "balance in
that there is a canonical form of democracy, then we must also surrender which the Court plays a role in _government butnot, by any stretch, the
the idea that judicial review is wrong because it inevitably compromises de - majoi role. Academic lawyers do no service by trying to disguise the politi cal
mocracy. It does not follow that judicial review is right. Only that the issue decisions—thii balance assigns judges. Rule by academic priests guard Inithe-
cannot be decided by labels. Do the best principles of political morality re- ff-wIli-Of-so—mecanonical original intention is no better than the rule by
quire that the majority's will always be served? The question answers itself. Platonic guardians in different robes. We do better to work, openly and
But that is only the beginning of a careful study of the morality of judicial willingly, so that the national argument of principle that judicial review
review.
provides is better argument for our part. We have an institution that calls
If we undertake that study, we should keep steadily in mind what we some issues from the battleground of power politiCs to the forum o f Princi
_

have gained from the idea and the practice of that institution. I do not mean ple. IfhadisoUt the - promise that the deepest, most fundamental conflicts
only the changes in our law and custom achieved by the Supreme Court. betweenindividual and society will 'once, some lace, finall Y , beco— e ues
q
Every student of our legal history will find decisions to deplore as well as to 51
tions of justice. I do not call that religion or prophecy. I call
celebrate. Judicial
cal moralifY Wirt review insures that the most fundamental issues of politi-
_ finally be set out and debated as issues of principle and not
political power alone, a transformation that cannot succeed, in any case'not
Ery, -within the legislature itself. That is important beyond the importance
of the actual decisio - ns readied in courts so charged.
Judicial review is a distinctive feature of our political life, envied and in-
-
creasingly copied elsewhere. It is a pervasive feature, because it forcespo-
litical debate to include argument over principle, not only when a case
_
comes to the Court but also long before and long after. This debate does not
neCeiiii-ITY run very deep, nor is it alwaYSVery powerful. It is nevertheless
-
valuable. In the last few decades Americans debated the morality of racial
segregation, and reached a degree of consensus, at the level of principle,
earlier thought impossible. That debate would not have had the character it
did but for the fact and the symbolism of the Court's decisions. Nor is the
achievement of consensus essential to the value I have in mind. American
public officials—particularly the large number of them who have gone to
law school—disagree about how far those accused of crimes should be pro-
tected at the cost of efficiency in the criminal process, and about capital
punishment. They disagree about gender and other nonracial distinctions in
legislation, about affirmative action, abortion, and the rights of school chil-
dren to an equal public education whether they live in rich or poor districts
of a state. But these officials are, as a group, extraordinarily sensitive to the
issues of political and moral principle latent in these controversies; more so,
I think, than even the brilliantly educated and articulate officials of Britain,
for example. I do not mean that the Court has been their teacher. Many of
them disagree profoundly with what the Court has said. But they would not