FREEDOM'S LAW by Ronald Dworkin
(OUP 427 pp. 1996)
reviewed by Roz Kaveney
Collections of old essays always map the past, occasionally help describe the present and only occasionally offer a tenuous pathway into the mist of the future. Ronald Dworkin's essays in jurisprudence are primarily concerned with the partly successful attempt, by the Reagan-Bush governments, to pack the Supreme Court with justices with a particular strange perspective on the US Constitution and Bill of Rights. He is secondarily concerned with various civil rights issues and with his own perspective on them. Overarching all of these is the question of his particular reading of constitutional propriety, a reading which, he argues, is not simply the whim of a contemporary liberal, but one which effectively derives from the judges from whom he learned his law, from a grand tradition of grand old men.
Dworkin is unfailingly polite and discreet in his remarks about the Reagan years, while seething gently behind his prose. To put it more crudely than he ever would, the Republican Right had become obsessed with the idea that the Supreme Court was always packed whether through the dimness of earlier Republican Presidents, or the malice of left-wing Democrats, with judges who, however right-wing and obscurantist they had been before, somehow always decided that the law was on the side of the weak, the oppressed and the marginalized. This, to Reagan, could not possibly be right; the Supreme Court of his childhood and young adulthood had always been authoritarian and concerned with the rights of the rich and a way had to be found to return it to this state of innocence.
This way was found through a doctrine of constitutional propriety which, to a non-lawyer like myself, reads more like theology than politics or law. The words of the Constitution were to be interpreted as if they were a literary text, subjected to a remorselessly historicist interrogation, so that each and every word could only mean what a person writing that word at the particular date and time of the Constitution might reasonably be supposed to have meant it to mean.
Any possibility that some at least of the framers of the Constitution were wise and clever enough to have written with deliberate vagueness was to be dismissed out of hand - this of course is the crassest of stupidity. Thomas Jefferson was a man with a strong eye to the future, though not a strong enough one to have disembarassed his reputation of the fact of slave-owning and the rumour of sexual abuse of his slaves. Tom Paine, widely read and publicly disavowed by the framers, had devoted considerable ink to debunking Burke's idea that posterity could be bound forever by any particular version of a social contract. A revolutionary society so attracted to the metaphor of organic growth, to, in fact, the Tree of Liberty, can be reasonably supposed to have remembered that trees grow and that trees change in accordance with the seasons.
The standard assumption is, therefore, that the Constitution states general principles to be interpreted in the light of particular circumstances, that it is sublimely irrelevant whether or not, say, any of the framers of the Fourteenth Amendment would have wished to extend equal treatment before the law from black men to women and thence to gay men, lesbians and the transgendered. The framers, awash with prejudices and beliefs local to their particular times and places, chose consciously to phrase the constitution in general terms; it is not unreasonable to suppose that they considered and rejected the possibility of phrasing it in precise, unambiguous and local terms, that they chose not to bind posterity to anything more than general principles.
This is all the more clearly the case because there are occasions where they do refer to particular contemporary issues, issues that are now dead once and for all because they were specifically dealt with in the US constitution like the punitive billeting of troops. The right to bear arms might be supposed to refer to the particular circumstances of the Revolutionary War and its threatened aftermath; it has suited the Right to interpret it as precisely the sort of inalienable right which can be subjected to endless contemporary reinterpretation.
Reagan though argued that the founders and framers could, for example, never have conceived of, say, legal abortion and would have been repulsed by the idea. His commitment to the Moral Majority that he would overthrow the Supreme Court judgement in Roe v. Wade meant that he had to find nominees who shared his belief. The inventive Robert Bork, the failure of whose nomination was one of the causes celebres of the Reagan Years, was one such.
Of course, political expediency and some remaining sense of basic decency meant that he was not prepared to extend his position to each and every case where a historicist reading might overthrow existing positions. He was not prepared, for example, to argue that the decisions overturning racial segregation were improper, because of the electoral consequences for his patron had he done so. Moreover, those nominees whom Reagan did manage to impose turned out not to be entirely reliable in precisely the area of abortion rights where they were meant to slash and burn.
In the end, as we know, Bush managed to finesse the appointment of the appalling Clarence Thomas, a young right-wing African American of no particular distinction but a strong commitment to the party line. We shall see the long-term consequences of this appointment; Thomas, unless he falls under a useful bus, will be on the Bench for three decades and more. Dworkin considers the saga of his appointment and the Anita Hill hearings with an appropriately world-weary eye; Bush managed what Reagan could not precisely because the issue of sexual harrassment came up and what made Thomas most clearly unfit for public office was turned into a strength. Thomas claimed that he, as a black man, was being lynched by a white feminist establishment and the sheer brazenness of the claim saw him through.
There is, in all of this, and all of the rows about religion and race and sex and the state, a further understated conflict. It is often assumed that democracy, properly considered, is the right of the majority of the electorate to have its way and woe to the conquered! Dworkin argues that the American system, and most systems that have been influenced by it, does not hold to this doctrine, but is based on the idea that there have to be constitutional restraints on that majoritarian will.
Hitler, say, did wellish in an election and was constitutionally appointed head of state, more or less. He cannot, though, be held to have had a democratic mandate for the Holocaust, because constitutional democracy respects the rights of minorities over and above the will of the majority. In order for the will of the majority to have moral standing, indeed, and for those elections to determine it to be fair, the political and social rights of minorities electoral and otherwise have so to be respected. As laid out by Dworkin, this is less of a paradox than it might be considered.
Dworkin is magisterial on all of this, not least because he is conflicted about some practical applications of the principle of organic change and development to which he is essentially committed. He cites his mentor, Judge Learned Hand, whose view was that desegregation was desirable, was so desirable that it needed to be passed as a law rather than instituted by reinterpretation of the Constitution by the Supreme Court. There are too many areas - those concerned with sexuality for example - where the judges themselves are too contaminated with the prejudices of class and age to come out, infallibly, with the right answer.
It is clear, even, that Dworkin is himself fallible. While disliking right-wing Christians (and nonetheless defending their right to political participation, short of tyrannizing their fellow citizens), Dworkin has his own areas of unreflecting intolerance. He assumes, for example, that his own brand of secular humanism with its relocation of the sacred to the humane is the only true way forward against the infamy of traditional religion; his occasional references to those humanisms which decline to apportion value to anything very much except doubt and uncertainty about the idea of value are worryingly distasteful for an advocate of tolerance.
There are areas where his assumption of universally shared values are worryingly beside the point. He assumes, for example, that all good persons and true share his assumption that sado-masochism is aberrant, rather than a taste he happens not to share. It would have been unfortunate, say, had he found himself having to comment on Regina v. Brown, Jaggard and others, the Operation Spanner case; the issue was in fact one of privacy and consent, and anxiety about whether what was being done in private and with consent was morally right or wrong merely darkened counsel to the defendants' disadvantage.
His anxieties about abortion - he is worried that even early abortion might be ethically wrong, while prepared to defend it in law - sometimes blind him to the obvious. It is almost with incredulity that he discovers that some anti-abortionists want to execute both doctors who perform abortions and women who undergo them. His cult of rationality sometimes makes him short-sighted about the real dreadfulness of the people he opposes.
Similarly, he is entirely out of his depth when pointing out, almost as a friendly uncle, to Catherine McKinnon that the anti-pornography laws she suggests would suppress much great art. Her failure to include a test of merit, her failure to include a distinction between parts and the general tendency of the whole work, indicate very precisely that McKinnon is not remotely interested in preserving great art.
Her belief is that pornography as a whole renders women emperilled and discounted; there is no such thing as being slightly pornographic or artistically pornographic or defensibly pornographic. If the Gerty McDowell episode in Ulysses, say, falls within her definitions, then Joyce must burn and that is that. Ronald Dworkin is too little prepared to assume that a position is self-evidently untenable and mad; it is significant that he only really starts to get angry with McKinnon in his reply to her reply, after she had accused him of being a paid hitman of the pornography Mafia and of being professionally incompetent.
His commentaries on euthanasia, affirmative action and political libels are fascinating pieces of exposition; that lack of passion which can render him a little milk-and-water on issues about which he cares deeply is a positive advantage here. His essay on Judge Learned Hand as mentor, friend and exemplar is a model of what the short biographical essay ought to be; it tells you whom you are being made to care about, what they were like and what they did that means you should care without terseness or prolixity. Legal studies are often impersonal, and Dworkin here produces something sufficiently caring and individual that one might wish he wrote thus more often.
His friendly advice to the United Kingdom about incorporation of the European Convention on Human Rights as a first step towards a proper Bill of Rights is helpful, if predictable. What is missing from it, perhaps though, is a discussion in this context of a matter he constantly raises, and abandons undeveloped, in the essays on US constitutional matters that open his book. It is the question of 'unincorporated rights', those rights or liberties which are simply assumed as a matter of liberal common sense and taken in liberal doctrine to be guaranteed without specific mention.
As communitarianism assumes greater prominence, with its demands that no further rights be developed or assumed, and that all civil rights be matched up with enshrined, dictated and taxonomized civil responsibilities, these issues assume greater prominence. The more diverse a society, the more minorities it will possess. Are such minorities to form an orderly queue, perhaps based on size, and negotiate in turn what duties they will have to perform in order to receive respect and what other goodies they might specifically desire? Or is there a way forward in blanket acceptance of a general position of tolerance and non-discrimination in the context of which they form the same queue, but with a stronger negotiating position?
And what, in either context, is the definition of a minority? There is the question of those pastimes much loved by minorities which majorities, often with good reason, find distasteful; clearly the freedom to smoke, shoot targets or organize the dismemberment of foxes by hounds are not freedoms of the same order as the right to live, to vote or to own a basic minimum of property. But if they are dismissed, what of the right to have a friend round for mutual whipping, the right to change gender, the right to watch the movies of David Cronenburg and Quentin Tarantino or the right to bear a child by artificial insemination and without any known father? The general will, or Daily Mail editorials which is all too often assumed to be the same thing, would not necessarily regard any of the latter as legitimate.
Someone with Dworkin's abilities and clarity, though perhaps a slightly greater freedom from stock assumptions about how things ought to be, needs to consider these matters. Is there such a thing as the right to be left alone to get on with things ? Does basic liberty include the right to the free possession of our own bodies and our own minds? Is there a way to detach an interest in liberty from the obsession of the American Libertarian Right with the freedom to shoot, pollute, deunionize, discriminate and bully? In this collection of essays, Dworkin demonstrates that he helped shoot a lot of now dead dogs; he needs now to write the great book that will change all our lives by squaring the circle, by reconciling rights, freedoms and a civic responsibility that is non-specific and ethically complex.