Top legal scholar talks about key to understanding law
RONALD Dworkin puts one in mind of Perry Mason. He's soft-spoken, polite, thoughtful, and gracious. But give him a legal arena and boy, does he wield a stinging punch! Unlike the famed fictional defense lawyer and detective, Mr. Dworkin -- who holds professorships at both New York University and Oxford University -- is a real-life giant of jurisprudence. His easy-going manner belies his tough, often-controversial, and tightly integrated theories about law.
In a series of works -- ``Taking Rights Seriously,'' ``A Matter of Principle,'' and of late, ``Law's Empire,'' (Cambridge, Mass.: Harvard University Press, $20) -- the legal scholar progressively and meticulously constructs the theme that ``moral principle is the foundation of law.''
Dworkin says, in fact, that ``integrity is the key to understanding legal practice.'' His concept of law as integrity reaches far beyond static legal rules and principles. He writes: ``Law's empire is defined by attitude, not territory or power or process.
``It is an interpretive, self-reflective attitude addressed to politics in the broadest sense. It is a protestant attitude that makes each citizen responsible for imagining what his society's public commitments to principle are, and what these commitments require in new circumstances.''
In a recent interview in a loft off of Fifth Avenue near his New York University office, Dworkin discussed current issues of press rights, pornography, and affirmative action in terms of integrity.
An avowed liberal, the legal scholar nonetheless comes to some conclusions which might alarm civil libertarians. For instance, he says that the First Amendment of the United States Constitution spells out that Congress shall make no law abridging freedom of speech or the press. But he stresses that he doesn't accept the principle that this gives the press any ``larger rights'' than others. In fact, he says that the argument that ``we would be better off'' if there were special press rights also ``invites an argument for censorship.''
``The First Amendment justifies the right of all to speak,'' explains Dworkin. ``It is a way to get the public a lot of information.'' The reporter's right to withhold confidential information, such as the source of a story, he contends, is one of ``policy'' rather than moral principle. And it may sometimes have to yield to more important considerations, such as the right of access to information by a defendant whose conviction could result in a death sentence or life imprisonment.
``No right holds in all circumstances,'' Dworkin insists.
``Law's Empire'' presents a powerful argument for the concept of law as integrity. To prove his case, the author analyzes, dissects, and summarily dismisses popular alternative legal interpretations of ``conventionalism'' and legal ``pragmatism.'' He concludes that conventionalism ``which makes law depend on distinct social conventions it designates as legal conventions . . . fits our legal practices badly.'' And he says that ``legal pragmatism denies that a community secures any genuine benefit by requiring that judges' adjudicative decisions be checked by any supposed right of litigants to consistency with other political decisions made in the past.''
Dworkin concedes that various judges, applying the concept of integrity, may well come to different conclusions in a particular case. His argument is not for integrity dictating a specific conclusion but more broadly mandating ``coherence in principle.''
``Integrity means coherence in principle,'' the scholar explains. ``And law must have integrity to have moral authority,'' he says.
Dworkin's views on pornography -- held against his thesis of law as integrity -- have more than a touch of the unorthodox. He flatly states that he ``doesn't believe that pornography is an aspect of free speech.''
But he also rejects censorship on the basis of ``moral independence,'' holding that individuals have a right to choice, even if their decisions don't maintain or better community standards. Dworkin tends to agree with a recent US Supreme Court ruling, which permits zoning laws to restrict the sale and display of obscene materials to certain locations within a community.
``It is not a significant violation of someone's liberty to force them to go a few blocks to buy a book,'' he told the Monitor. Some regulation is consistent with moral principle, he contends.
Dworkin also argues in favor of affirmative action programs, on the basis of principle and integrity. He says ``policies'' that benefit groups who have previously been discriminated against -- such as blacks and women -- also benefit society as a whole. And although a main Dworkin theme holds that ``principle should come before policy,'' he defends affirmative action policy as consistent with a principle which says that ``no one in our society should suffer because he is a member of a group thought less worthy of respect than another group.''
It might be more orderly if Dworkin would tie together his ideas about law as integrity with specific conclusions. But that's neither his style nor his aim. Perry Mason is used to doing our work for us. But Ronald Dworkin insists on stimulating our thought and forcing us to do our own.
Curtis J. Sitomer writes the Monitor's weekly ``Justice'' column.