The Consequences of a Dworkinian Judiciary

There is still the quite separate question of what consequences would likely follow were Dworkin’s theory of interpretation to be adopted nonetheless. 1 am now in a position to weigh those likely consequences.

For a member of a particular society to be told that, as hers is a well-established system of law, there will be right answers to all questions of legal interpretation has an incredible appeal and attraction. The appeal is multiplied when it is trumpeted that one right answer means more certainty and determinacy of outcome.⁸³ On consideration, however, the moral sceptic must reject such assertions as incoherent. For him, subjectivity pervades the Dworkinian approach. And of course not even the moral objectivist can decide whether the Dworkinian approach — as opposed to one that admits judges sometimes have discretion and tries to limit it — leads to more certain outcomes on the mere basis of the terminology employed.⁸⁴ A claim for single right answers discoverable in principle, even where that claim is accepted, tells us nothing about the determinacy of law in practice under competing approaches to interpretation. Even the moral objectivist can recognise the fact of relativity of individual judgements. It is an empirical question which approach does most limit that subjectivity.

The first consequence of Dworkin’s theory then, in my view, is a large sacrifice in the certainty of outcome of cases. Asking judges to construct a background moral theory into which the settled rules best fit may mean that law, so understood, can never ‘run out’ but it also means that judges’ individual views of morality and, through incorporation, law — be those views wrong ones or right ones — are given much greater scope. Each judge must (by himself and therefore subjectively) decide upon that (allegedly) objective morality.

Any number of examples might be used to illustrate this greater indeterminacy. Here is a simple one:

Imagine a London stage musical seeking to transfer to New York. Imagine also a rule that allows at most only one ‘recognised star’ of each sex to transfer from London to New York with the production, the rest of the cast having to be American actors. The London male lead is a Caucasian playing a Eurasian. This actor is a big box office attraction. In New York the Actors’ Union is against allowing in the production because it wants an Asian in the lead role — there being a distinct dearth of roles for Asians and a rather long, and for them unpalatable, history of Caucasians playing Asians on stage and screen. Additionally, there are hundreds of millions of dollars in likely profits involved, hundreds of actors’ jobs — including thirty-odd supporting roles all for Asians, a British producer who refuses to drop his British star even if it means cancellation and finally questions of artistic freedom.

A hard-nosed legal positivist judge would ignore all issues save whether the actor was a ‘recognised star’. In some instances the answer to this would be uncertain. But Dworkin’s approach would require the rule to be placed in a wider context and justified firstly just to see if it is a settled rule and then to give a final answer based on the constructed best fit. However, theories that saw the ‘recognised star’ rule:

a) as growing out of support for the American union which had itself always placed a premium on racial equality and equal opportunity, even to the point of favouring reverse discrimination;

or b) as a trans-Atlantic compromise between producers and unions to aid the ailing theatre business;

or c) as a simple ‘jobs-for-Americans’ expedient;

or d) as a whole-hearted endorsement of artistic freedom; or e) as just another piece of subsidiary legislation all of which must be in keeping with the over-arching, affirmative action driven primary legislation through which it has any force;

might each lead to different conclusions.

So I repeat, the major consequence of Dworkin’s theory is a substantial lowering — in practice — in the certainty of outcome and conversely, a big enlargement in the parameters for decision-making. In other words, there would be a significant increase in judicial

86 power.

A second consequence of Dworkin’s theory is that judges cannot escape morality. The amoral perspective, ex hypothesi, is unavailable to them — and perhaps to anyone. All arguments must be from within a moral framework, one which is all-pervasive. By seeing law only through the eyes of the judge Dworkin can plausibly argue that morality must be included within law (or perhaps that the two are fused unbreakably together). But what of other perspectives like that of the lawyer? Need the lawyer adopt a perspective infused with morality to advise on the law? Oliver Wendell Holmes makes this same point in his famous article “The Path of the Law”. In advising the ‘Bad Man,’ Holmes notes, a lawyer would not take the same perspective as a judge because when rules run out lawyers must look to other factors than their sense of morality. The ‘Bad Man’ wants only a prediction of outcome. So even assuming that a lawyer were a Dworkinian disciple, that lawyer is paid to offer a prediction of judges’ likely views, not her own ‘best fit’ answer. The upshot is that Dworkin’s insistence that legal rights are a species of moral rights,⁸⁷ that the amoral legal perspective is unavailable, is not without cost. There may be good grounds for wishing to distinguish non-legal rights from legal rights, even for a judge. Moreover, as a factual claim, it seems false that no judges ever do adopt an amoral perspective.

A third consequence, tangential to the first, is that Dworkin’s theory appears to allow the judge to partake in the moral certainties of natural law doctrine and moral realism but without suffering the hangover caused by trying to defend such a metaphysical position.

These three consequences of Dworkin’s theory all pertain to judges — what judges do and how they do it. But this in itself reveals a notable limitation in Dworkin’s theory. He demands that law be viewed only from the perspective of judges. But the non-Dworkinian might reply both that judges are a small class of the many actors in a legal system⁸⁸ and, anyway, that there is no need to adopt the perspective of any participant in the legal system.⁸⁹ Dworkin’s demand can only be transformed into some sort of claim that the judge’s viewpoint is the single valid or possible one if the second-order moral sceptic’s position necessarily collapses into global internal scepticism. But that is not the case.⁹⁰ There is no need to take an internal perspective. And with that concession, the Dworkinian one right answer edifice must fall; only with the acknowledged support and scaffolding provided by natural law tenets and beliefs in ‘higher’ laws, mind-independent values and moral objectivism can it be rebuilt.

Of course such an emphasis on the judiciary may well be understandable in an American in whose native country judges play such an important and powerful role. Still, a theory aimed at only one particular class of participants would appear to be a very poor descriptive theory.⁹¹ Judges do not describe; they prescribe. To do their jobs they must make decisions even when the settled rules have run out.⁹² Turning to morality and a normative theory in such situations is quite natural (although not often mandated, save perhaps in Bills of Rights cases).

However, not only does moral scepticism undermine any one participant’s (or class of participants’) claim to have access to true perspectives but the vantage of the external observer seems better placed to offer a descriptive legal theory — even one about interpretation — than does the judge’s vantage. It is the uninvolved observer who merely describes. Moreover, description is the usual refuge of the sceptic who doubts that there can in fact be any kind of explanation outside of a naturalistic, causal one. It is no surprise then that Hume consistently adopts the observer’s viewpoint, be it of the physical world, of human nature, of religion, of history, or of anything else. A moral sceptic’s theory of law seems likewise destined to adopt this viewpoint of the external observer.