For a number of reasons, libertarians should be interested in the legal philosophy of Ronald Dworkin.1 Of course, he is a leftist who seeks to implement the American "liberal" agenda through judicial activity. But it is not often realized that the legal doctrine that underlies this is not much different from classical liberalism. He believes in rights as the pre-eminent doctrine that should constrain all political action.
These are individual rights, not group rights (though he is not entirely consistent on this), and he is normally anxious to protect these against the claims of the communitarians.
Dworkin's faith in legal processes has brought scorn from Critical Legal Studies writers whose juvenile Marxism drives them to condemn Western law as a subtle mechanism by which the bourgeois property owners oppress the benighted proletariat. His defense of an almost unlimited free speech has drawn the ire of the feminists who say that the open display of sexuality is equivalent to physical offenses against women.2 Most important is his use of the law and the Constitution to counter that majoritarianism which is sometimes a refuge for American conservatives.
However, there are great differences between Dworkin and classical liberals.
These relate to his activist social agenda, to be pursued by the courts; his overt disrespect for economic rights; and his refusal to use the law to protect private property. But many of the similarities and differences between Dworkin and classical liberalism go back to fundamental jurisprudence.
At the theoretical level, there is some similarity between Dworkin and F. A. Hayek on the meaning of law and its role in a free society.3 Both oppose legal positivism and propound the autonomy of law. That is, they believe that legal processes have a validity independent of, and untainted by, politics.
Legal positivism separates law from morality, and the meaning of law is independent of any ethical purposes a purported legal rule might have. Its validity depends exclusively on the objective procedures that validate it. Under classical English jurisprudence, genuine law was a product of an allpowerful sovereign, that is, any institution that can secure obedience. In its most sophisticated form, however, in the jurisprudence of H.L.A. Hart, valid law is distinguished by its pedigree: did it emanate from an authoritative set of rules accepted by a community?4 The final source of authority is the "rule of recognition." Thus a legal order that does not have a sovereign, such as America's, could still be incorporated into the model of rules, again with no reference to morality.
The rules) of recognition here comprises the Constitution and appropriate Supreme Court decisions.
However, Dworkin makes a distinction between rules and principles. Principles, unlike rules, do not apply all the time, but are called on by judges to settle hard cases.
They are not expressed formally, but are immanent in the morality of a community.
Nevertheless, they are intrinsically a part of its law. To a positivist like Hart, when the rules run out or are indecisive, judges have to innovate and invent new rules. Of course, there is a danger of retroactive legislation here, and positivists recommend that judges implement what they anticipate the legislature's likely response to a particular conundrum will be, or make their decisions consistent with current values. But, nevertheless, such an invented rule is not strictly speaking law until it has been incorporated into the system by statute or case law. In other words, judges have strong discretion.
For Dworkin, this is not a feature of judicial activity, which is always constrained by precedent, by the necessity to interpret principles correctly, and by the need to make decisions "fit" the prevailing legal structure.
As he says, "I insist that the process, even in hard cases, can sensibly be said to be aimed at discovering, rather than inventing, the rights of the persons concerned. …