Dworkin’s Argument From Checkerboard Legislation
In American politics, compromising and building consensus are greatly valued. And rightfully so. Speaking broadly, we believe that people in a given community should ideally have equal decision-making power. We further realize that different people have conflicting views about issues of great importance. Compromise seems to be an appropriate way to accommodate varying political values among our citizenry. However, Ronald Dworkin demonstrates that a certain kind of political compromise would be unacceptable. In Law’s Empire, he offers the following puzzle.
It would seem to follow from our convictions about fairness that legislation on these moral issues should be a matter not just of enforcing the will of the numerical majority… but of trades and compromises so that each body of opinion in represented… Do the people of North Dakota disagree whether justice requires compensation for product defects that manufacturers could not reasonably have prevented? Then why should their legislature not impose this “strict” liability on manufacturers of automobiles but not on manufacturers of washing machines? Do the people of Alabama disagree about the morality of racial discrimination? Why should their legislature not forbid racial discrimination on buses but permit it in restaurants? Do the British divide on the morality of abortion? Why should Parliaments not make abortion criminal for pregnant women who were born in even years but not for those born in odd ones?
Dworkin argues that our basic sense of justice and fairness should justify this kind of “checkerboard” legislation insofar as it seems to satisfy the important democratic principle of compromise. Clearly, though, these examples strike most of us as failing in some fundamental sense, but what exactly is the problem? Dworkin’s argues that
a state that adopts these internal compromises is acting in an unprincipled way… The state lacks integrity because it must endorse principles to justify part of what it has done that it must reject to justify the rest.
Acting in a principled way, Dworkin concludes, is both a political and jurisprudential value in addition to justice and fairness. Reasonable people can disagree about the appropriate way to apply Dworkin’s notion of integrity in law (and I’m not sure how far I would follow him here) but it strikes me as obvious that he has put his finger on a powerful intuition about law than transcends mere justice and fairness.
a 1L writing about dworkin–at this time of year! impressive.
aah… dworkinian skepticism of legislation. dworkin is, in the passages you quote, as elsewhere, all over the place. i don’t know where to start. he never really makes clear, in any of his writing, what exactly it means to act in a “principled way”. in what sense exactly is a legislative compromise (even one that seems arbitrary) not principled? individual legislators vote as they do for a reason, no doubt; and we have the democratic system we have for a reason, no doubt–and if either of those presumptions aren’t true, surely the burden of proof would be with dworkin to show us why. just because the substantive result of a (let’s say, principled) process isn’t one that dworkin at T1 agrees with or sees right off the bat, doesn’t mean it lacks principle. (he of course at T2, looking back on the statute, will need to interpret even unprincipled statutes in their “best light”… )
Comment by 260 — April 24, 2007 @ 12:01 am
I think it’s fairly clear what it means to act in a principled way. In this context, I take him to mean that our legal system should express coherent & consistent values. The checkerboard legislation Dworkin points to fails to express such values and is thus bad law.
Comment by sagoboulevard — April 24, 2007 @ 11:46 am