A Republic Worthy of Ronald Dworkin

The death of Ronald Dworkin on February 14, 2013 provides an occasion to reflect not only on his contributions to legal philosophy, but to the entire enterprise of jurisprudential theory from the point of view of progressive thinkers.

By the time Dworkin collected a decade’s worth of his writings into Taking Rights Seriously in the late 1970s, he was responding to a deep need within the liberal intelligentsia. From the tumult of the 1960s and early 70s, liberals felt the need to substitute, once and for all, high principle for politics, yet at the same time not abandon the notion that all “truth”—and constitutional norms—must be time-bound, and permitted to grow as circumstances and progressive insight dictate.

Early twentieth century progressives favored executive power, and saw purportedly scientific administration and bureaucracy as positive goods. Starting in the 1960s, that support waned as the left grew cynical of just what the best and the brightest in government had delivered. Various shades of liberal and progressive thought came to share an insight and argument of American conservative thought:  the administrative state and its bureaucratic handmaids are likely to be untrustworthy, unjust, and unaccountable. However, unlike the conservatives, progressives never wanted anything or anyone to be accountable to the Founders’ Constitution, but rather to ever-evolving liberal “values,” which provided a kind of transcendent norm, or set of norms, to which they could aspire, as the bloom went off the rose of the supposedly rational state.

And what better way to pursue liberal values than through the judicial branch? Only the judiciary could assert its will, without effective challenge, to override the messiness of republican politics—including the give-and-take of the ordinary policymaking process. Liberal values could only emerge triumphant through the least republican branch appealing to abstract yet controlling principle.

But progressives remained committed, at least nominally, to the ideas of democracy, individual flourishing, and personal and political autonomy. So they had to put lipstick on the pig of judicial supremacy. A new, principled paradigm had to be created on which to rest the triumph of the liberal will via legal expertise.

And this paradigm had to be very different from the Founders’ constitutionalism, which eschewed expertise—rule from the desk—in favor of republicanism, and the rule of law. The Founders knew that this republicanism and rule of law would be messy things. Government was to be first and foremost political, for it would always be indissolubly linked to, and indelibly stained by, factionalism that sprang from human nature. It was a factionalism whose effects could be controlled, but whose causes could not be eliminated without unbearable cost.

No branch of government—not even the judiciary, whose appointment and occasional removal was to be the consequence of political rather than legal processes—was above the fray. If all checks on the abuse of power were ultimately to be political—including the right of revolution itself—then the exercise of power must be fraught in a way that requires the continual oversight of prudent men, not philosopher kings. No comprehensive rationalization, formalism, or rule of high principle was possible on the Founders’ understanding of politics.

Add to this list of woes the fact that the Founder’s Constitution was, on its face, too bourgeois, too oriented toward commercial republicanism, to get any real social engineering done. Enter Dworkin to give us a list of things we must presuppose in order to make our moral reasoning coherent, and a realm of high principle for judges to hang their hats on as they pursued liberal goods. Our considered moral judgments, he claimed, comport with the notion that human beings have rights. But which rights? We have no right to liberty as a negative freedom, because we wish to constrain the behaviors of others who might do us harm. But we do have certain basic rights, and entitlements to basic goods, that appeal to liberal sensibilities, because these things can be exercised or pursued by all, or so the argument goes, in a manner that does not infringe on or detract from the basic rights of others. By contrast, the exercise of property rights would infringe on the rights of others, so it can’t be a basic right in Dworkin’s pantheon.

Legal institutions must somehow guarantee equal concern and respect for the interests, plans and values of others. Basic rights must be protected by judges, against the efforts of the majority to apply their preferences. And equality becomes a right that cannot be trumped by the general welfare, or even by the basic rights of others. As citizens of a proper republic, i.e., one given over to the idea of equal concern and respect, we are free to make law, but only law that protects the rights, and preferences, of ourselves. We cannot be allowed to impose on others.

Majoritarianism is trumped by basic rights and the equality principle—the contours of which would hold unique appeal to liberal elites. Dworkin offers up an ideal judge, Hercules J., who could construct and apply principles that made sense of what had gone before, in a manner that brought no psychological discomfort to such elites. The expressive self was always to be celebrated, so long as it did not express itself through economic means.

The conclusions drawn from Dworkinian principles require not only Herculean efforts to arrive at, but must be pronounced from on high. Tradeoffs, compromise, cost-benefit analysis, prudence—and with them the rough and tumble of republican politics—disappear from sight. There is a distinctly Kantian formalism to Dworkin—Fiat justitia ruat caelum—that, paradoxically, always seems to bend to timely liberal purposes.  Progressive lawyers and judges become the philosopher kings.

Not incidentally, the state becomes supreme for Dworkin because only it can expostulate and enforce the rational, formal rule of high principle without regard to consequences. And no state actors are more conscientious and devoted to having their way than judges. Government by judiciary is a logical outgrowth of a politics of high principle. Idealism replaces prudence, and comprehensive positive rights replace limited natural rights.

One of Dworkin’s last writings (“A Bigger Victory Than We Knew,” August 16, 2012) appeared in The New York Review of Books, a publication in which he had held forth on legal philosophy and politics for half a century. In it, he gave a spirited defense of Obamacare from the point of view not of a policy analyst or medical professional, but a philosopher of law. Predictably, his legal philosophy led him to conclude that the Affordable Care Act somehow meets the fundamental requirements of political decency, in its hundreds of thousands of words, by showing equal concern and respect for citizens.

Our eighteenth century Constitution, lamentable though it is, can, in light of proper Dworkinian principles, be read capaciously enough to support, and indeed require, top-down control of a vast segment of the American economy. The job of judges, Dworkin proclaims, is to interpret constitutional text in such a way that it is justified in light of our moral sense, or at least the immediate though rapidly changing moral sense of people who read The New York Review of Books. Dworkin’s ideal judge, it turns out, is not Hercules but Proteus.