Ambiguity and unpredictability of law
Matthew Parris
A MATTER OF PRINCIPLE by Ronald Dworkin
Harvard, f19.95
No single, simple, philosophy under- lies our English law. No common thread runs through every judicial utterance. Why should it? We ask so many things of law. Some dovetail with others into coherent policy; some can barely be reconciled; some are simply irreconcilable. Why seek fine theories of consistency between laws constructed by inconsistent people?
As an exploder of other men's fine theories, Professor Dworkin is dynamite. With a sort of ferocious tediousness he dissects and destroys as boys pull wings off flies. If only he would leave it there. Alas, he too has a Theory. His text takes wings from a jungle of argumentation and soars into argument. In the undergrowth he is heavy-going but thorough; in flight, broad- brush, gallant — but vulnerable.
One cannot summarise 400 pages of close argument; but the pervading spirit is of hostility to those interpretations of law which lack reference to a moral framework: a framework concerned more with individual principle than political poli- cy. Anyone coming to this book believing it possible to interpret law by reference to statute and precedent alone, must be con- vinced by Dworkin's relentlessly prosecut- ing intellect that no 'law-rooted-in-law' model is available. Parliament leaves gaps.
I tested this with five parliamentary colleagues in a railway-carriage. The `Kerb-Crawling' Bill we have passed in- cludes the elegant phrase in the immediate vicinity of a motor-vehicle which he has just got out of or off.' Immediate vicinity'? Answers were: '2 yards', '2/3 yards', '10 yards', '100 yards' and 'same block or over the road.' Depends whom you want to catch,' added an M.P. Dworkin shows that 'What parliament intended' (or would have intended if asked, or should have intended if consis- tent) cannot be the judges' only guide. Less convincing is his own proposal, that they look beyond statute to 'political prin- ciple' but not to 'political policy'. Even if that were a practical distinction, I question the underlying exercise: to define an agreed political role for judges — for Dworkin dislikes conflict of authority. Academics usually do. It's messy.
Maybe; but isn't it healthy? The drunk- driver whose drink was laced, the school- girl who brought her pet mouse in at Dover without rabies-clearance . . . such defen- dants may encounter, variously, courts who want to 'send out a clear signal' or courts who simply feel sorry for them. I am very far from believing that there could be unambiguous rules. By all means let us say that judges must interpret statute literally — to say otherwise opens the floodgates of their Lordships' opinions. But, like those `Keep off the Grass' signs which were never meant to deter trespass in pressing circumstances, perhaps 'out-of-bounds' is just our quaint way of asking judges not to interfere unless they must? Dare we be more specific? An American perspective is interesting; but when Dworkin discusses 'Liberalism', the Atlantic proves too wide. American liberals would be soft-socialists here. We use the word differently to imply (I think) antipathy to collectivism/dirigisme/authbri- tarianism. Dworkin seems to mean 'nice' or 'herbivorous': 'Liberals tend to favour equality more, and liberty less, than Con- servatives do.' Perhaps he is confused by our own Liberal party — which surely makes no claim to be liberal? Nor should he imagine that British Conservatives favour liberty! Conservatives have abso- lutely no interest in liberty, except the economic variety benefiting potential sup- porters. It is just a happy coincidence that this brings other liberties with it.
Finally, he discusses philosophical con- troversy surrounding issues like 'reverse discrimination' (racial quotas, etc.). His attempts to base political conclusions upon jurisprudential theory are unconvincing. Wholly ignoring the strongest practical argument against reverse discrimination (that it assists prejudiced whites in con- tending that blacks are inferior), Dworkin proposes that, regardless of its wisdom, we at least admit that it is lawful. No indi- vidual, he says, has any right to be selected `on merit', unless 'merit' includes the wider contribution his appointment can offer society. Preferring blacks over better- qualified whites may contribute, for inst- ance, by raising the status of blacks gener- ally . . • But that is a 'public good' justification, inconsistent with his earlier view that `Justice is in the end a matter of individual right and not independently a matter of public good.' His suggestion that a black's blackness may be what enables him to do the job better, is unconvincing. It may with black policemen. in Brixton, for in- stance — but this is not the wider justifica- tion advanced for reverse discrimination.
He fatally underrates the arguments of which racists are capable, by assuming they must admit to prejudice. But most racists allege that blacks are inferior, not that whites are prejudiced; while the cleverest allege instead that blacks are simply 'diffe- rent', 'incompatible', 'better kept apart'. Then, using a Dworkinian argument, they concede that this may mean a raw deal for individual blacks, in the wider interests of society as a whole — including other blacks, future blacks, etc.
We should reply that a man must be judged by the merits that he can demons- trate and the defects he exhibits — but will Dworkin let us? He has sold the pass: 'It is regrettable when any citizen's expectations are defeated by new programmes serving some more general concern . . . but . .
Oh dear! I have heard such words upon other, less liberal, lips. There is something baleful in the sound.
There is much in these essays about the American Constitution and its relationship with fundamental principles. Such devices strike me as ways of weaving things I want (or may, one day) into a raft of things others want (or may, one day); and plastering the whole raft with enough gobbledegook and magic to obscure the fact that it's all just so much straw. 'What if everybody did that' is not a very good argument to address to a child who doesn't believe everybody will. Mummy needs a final 'Because!' for a string of 'Why's?'. Constitutions, fundamental rights, and suchlike, provide it.
Dworkin says little about certainty, much about equality. But I believe that, as much as equality or liberty, men desire to know where they stand: what reaction will be consequent upon any contemplated action. Regard to 'equity' does in practice rob the law of some predictability. It is a trade-off on which Dworkin should say more. To me, uncertainty is the greatest inequity of all. To be able to read the statute, read the precedents, read the facts, and correctly guess the result, is a mighty virtue in a legal system.
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