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Published online by Cambridge University Press: 13 April 2016
Constitutional adjudication in many legal systems crucially involves giving courts the power to override the decisions of other state institutions, even democratically elected legislatures. The task of delimiting the domain of judicial review is of the first importance. In this paper my aim is primarily critical. I want to take issue specifically with Ronald Dworkin’s well-known attempt to discharge this task through his use of the distinction between principle and policy. Courts, he claimed in Taking Rights Seriously, ought to decide on questions of principle and not policy and they are better suited for this purpose than legislatures. Despite the years that have passed since its original conception, Dworkin’s theory is very much alive and also relevant to contemporary constitutional theory. For, I believe it exemplifies a still common -perhaps also the predominant- way of conceiving of the role of courts and especially the practice of judicial review. It taps on the powerful intuition that it falls on judges to decide questions pertaining to the exercise and protection of individual right. Since my interest is pitched to questions of constitutional design, I will not challenge the explanatory adequacy of the principle/policy distinction itself from the point of view of moral theory, as many others have. Rather, I wish to explore whether this distinction adequately accounts for salient features of the division of labour between courts and legislatures. More specifically I will assess the extent to which employing this distinction satisfies three desiderata.
An earlier draft of this article was presented at the UCL Legal Research Seminar. I am grateful to Stephen Guest and George Letsas for making it possible and to all participants for a stimulating discussion, I owe special thanks to John Gardner, George Letsas, Mattias Kumm, Matt Lewans, Haris Papadopoulos, John Stanton-Ife and Wil Waluchow for their comments, written or oral, and to Nicos Stavropoulos for endless discussions on draft after draft. I am also very grateful to Richard Bronaugh for his many helpful suggestions and detailed criticisms.
1. I am borrowing here Lawrence Sager’s terminology from ‘The Domain of Constitutional Justice’ in Alexander, Larry, ed., Constitutionalism: Philosophical Foundations (Cambridge: Cambridge University Press, 1998) 235.Google Scholar For the purposes of this paper, the domain of judicial review includes the domain, within which courts may legitimately override democratically reached decisions.
2. Recently, Nick Barber has advanced a sophisticated approach that stresses the element of efficiency in the context of the theory of separation of powers. See Barber, N., ‘Prelude to the Separation of Powers’ (2001) 60 Cambridge L. J. 59.CrossRefGoogle Scholar
3. Dworkin, Ronald, Taking Rights Seriously (London: Duckworth, 1977) at 91 Google ScholarPubMed [TRS].
4. Ibid.
5. Ibid. at 90. Hence we know which rights we have according to a moral theory just by looking which claims that theory equips with that distributional character.
6. Dworkin does not mean to suggest that individual rights are necessarily absolute, in the sense that claims based on them defeat all competing considerations. He explicitly contemplates the possibility of less than absolute rights: ‘Rights may also be less than absolute; one principle might have to yield to another, or even to urgent policy with which it competes on particular facts… It follows from the definition of a right that it cannot be outweighed by all social goals. We might, for simplicity, stipulate not to call any political aim a right unless it has a certain threshold weight against collective goals in general; for example, it cannot be defeated by appeal to any of the ordinary routine goals of political administration, but only by a goal of special urgency.’ (Ibid. at 92.)
7. Dworkin, Ronald, Law’s Empire (Oxford: Hart, 1998) at 223 Google Scholar [LE].
8. The basis of their normative independence may then be taken to be an idea of equality (e.g., TRS, supra note 3 at 272ff) or an idea of moral independence (e.g. Dworkin, Ronald, A Matter of Principle (Cambridge, MA: Harvard University Press, 1985) at 373 Google Scholarff.) or some other moral idea. For an account of individual rights and collective goals similar to the one outlined in the text see among others Nagel, Thomas, “Ruthlessness in Public Life” and “The Fragmentation of Value”, reprinted as chapters 6 and 9 of Mortal Questions (Cambridge: Cambridge University Press, 1979)Google Scholar; Scheffler, Samuel, The Rejection of Consequentialism: A Philosophical Investigation of the Considerations Underlying Rival Moral Conceptions (Oxford: Clarendon Press, 1982).Google Scholar
9. The literature that Dworkin’s theory of rights has spawned is indeed daunting. Here are some examples: Hart, H.L.A., Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983) at 208–22 CrossRefGoogle Scholar, Raz, Joseph, “Professor Dworkin’s Theory of Rights” (1978) 26 Pol. Stud. 123 CrossRefGoogle Scholar, Regan, Donald, “Glosses on Dworkin: Rights, Principles, and Policies” (1979) 76 Mich. L. Rev. 1213 CrossRefGoogle Scholar. See also the recent exchange between Richard Pildes and Waldron, Jeremy in Pildes, R., “Why Rights Are Not Trumps: Social Meanings, Ex Pressive Harms and Constitutionalism” (1998) 27 J. Legal Stud. 725 Google Scholar, Waldron, Jeremy, “Pildes on Dworkin’s Theory of Rights” (2000) 29 J. Legal Stud. 301 CrossRefGoogle Scholar, and Pildes, R., “Dworkin’s Two Conceptions of Rights” (2000) 29 J. Legal Stud. 309.CrossRefGoogle Scholar
10. TRS, supra note 3 at 83.
11. Ibid.
12. Ibid. at 93.
13. Ibid. at 82.
14. Ibid.
15. A word of caution is in point here: It may be objected that Dworkin offers his theory as an account of what judges do in hard cases, whereas I treat it as a general account of the institutional role of courts. But the difference is only illusory. For one thing, Dworkin, unlike most positivists, thinks that the distinction between easy and hard cases is merely epistemic, not deep or metaphysical. See his LE, supra note 7 at 51-54. Furthermore, the description Dworkin gives of what judges ought to do in hard cases is no different from his general account of interpretation, which is the foundation of any proposition of law, not just propositions of law in hard cases.
16. TRS, supra note 3 at 85.
17. Ibid.
18. Ibid. at 90.
19. Ibid. at 83.
20. Ibid. Compare TRS, supra note 3 at 302-03. This also follows from the epistemic combination of principle and policy highlighted in the previous section. Insofar as many considerations of individual right are worked out and accommodated at the stage of specifying policy, it will primarily be the task of the legislators to address them.
21. Dworkin addresses similar questions in LE, supra note 7 at ch. 9.
22. The example is taken from Munzer, Stephen, “Realistic Limits on Realist Interpretation” (1985) 58 S. Cal. L. Rev. 459 Google Scholar. A similar point as the one I make in the text has been put forward by Greenawalt, Kent, “Policy, Rights and Judicial Decision” in Cohen, Marshall, ed., Ronald Dworkin and Contemporary Jurisprudence (London: Duckworth, 1984) 88 Google Scholar at 103-06, reprinted from (1977) 11 Georgia L. Rev. 993.
23. LE, supra note 7 at 342-45.
24. “A Reply by Ronald Dworkin” in Cohen, ed., supra note 22 at 263.
25. I have assumed here that policy on the revised view involves the absence of constraints from political history. Richard Bronaugh has invited me to consider a different reading. He has pointed out that in Dworkin’s response to Greenawalt that I have quoted questions of policy may be understood as drawing on other considerations apart from considerations about the ideal society— Dworkin does not say that they only draw on considerations of the latter type. However, if those further considerations include past political decisions, then policy on the revised view is all but identical to principle; and hence the distinction between them becomes unstable.
26. See, for instance, P. Strauss, “The Place of Agencies in Government: Separation of Powers and the Fourth Branch” (1984) 84 Colum. L. Rev. 573. Importantly, Dworkin himself later came to acknowledge the existence of moral constraints on the power of legislatures to realize justice. He referred to ‘integrity in legislation’, which ‘restricts what our legislators and other lawmakers may properly do in expanding or changing our public standards’. See LE, supra note 7 at 217-18.
27. I will here focus on governance by political institutions but I think the distinction applies in other contexts that involve institutions making decisions that are supposed to be binding on a group of people.
28. This is not to exclude the possibility that a conception of these ideas might include substantive elements. This is the case with a number of recent accounts of the rule of law. For an overview of such accounts see Paul Craig’s well-known analysis in “Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework” (1997) Pub. L. 467. Another prominent example is the account of due process by Scanlon, Thomas in “Due Process” in Pennock, J. & Chapman, J., eds., Due Process: Nomos XVIII (New York: New York University Press, 1977) 93 Google Scholar, reprinted in Scanlon, T. M., The Difficulty Of Tolerance: Essays In Political Philosophy (Cambridge: Cambridge University Press, 2003) 43.CrossRefGoogle Scholar What is important, though, even in such mixed conceptions is that they primarily reflect second-order concerns. It is the latter that give the overall tenor. Accordingly, the place of substantive elements must necessarily be circumscribed.
29. I write ‘relative to this decision’, because I take the most common case, where there is a decision that adjudicates on a specific issue. But perhaps the following more general formulation is more accurate: ‘Relative to this question of law’.
30. Thayer, J.B., “The Origin and Scope of the American Doctrine of Constitutional Law” (1893) 7 Harv. L. Rev. 129 CrossRefGoogle Scholar at 136.
31. By this I don’t mean to exclude the possibility that the peculiar features of courts make it apt for the assignment of specific duties. This is the form that arguments in favour of constitutional review of legislation take with judicial independence being typically invoked. What I am saying is that even this type of argument must somehow fit in an account of the interaction between courts and legislatures.
