Equity or Dworkin's Egalitarianism

AuthorMark Gould
Pages47-71
ANCILLA IURIS (anci.ch) 2016: 61 – Article 61
Equity or Dworkin’s Egalitarianism:
Principles that Incorporate Policies Versus Principles that Stand on Their
Own
Ronald Dworkin contended that the process of judicial interpretation in the United States
and the United Kingdom is and should be regulated by egalitarian principles that are par
tially constitutive of the law. While he also referred to policies, principles, in the form of legal
rights, trump legal policies in situations of conflict. The sharp differentiation Dworkin drew
between principle and policy derived from the inability of (his) interpretative theory to exam
ine the outcomes of legal decisions social scientifically. In consequence, in a fashion analo
gous to interpretative theories in the social sciences and humanities, a discussion of social
practices, social policies, and their consequences dropped from his theoretical agenda.
In contrast, I develop the rudiments of a theory of judicial activity that maintains the
autonomy of principles, while recognizing that their very meaning is dependent on the con
sequences of their implementation. While principles retain their deontological status, they
are necessarily integrated with their policy consequences, if only to clarify their meaning. It is
crucial to remember that if law is constituted as a set of legal norms, it is also a form of social
action and that the two are not always congruent; this simple insight will turn out to be help
ful in selecting the legal principles that we should endeavor to implement.
To make my argument manageable within the context of this paper, I contrast Dworkin’s
notion of equality, which is essentially procedural, with an image of equity that merges for
mal and substantive claims, recognizes that the implementation of egalitarian norms may
accentuate inequality, and mandates actions to enhance substantively egalitarian outcomes. I
contend that while Dworkin’s image of law as integrity is capable of understanding (making
coherent) and normatively justifying the movement from Plessy v. Ferguson1 to Brown v. Board
of Education,2 it cannot explain and justify systematically the further development manifest in
Griggs v. Duke Power Co.3 While Brown enunciated a procedural model of equality that might
be understood solely at the level of doctrine, Griggs began the process of enunciating a sub
stantive (and procedural) model of equity (in the disparate impact doctrine) that requires an
examination of the specifics of each case, an evaluation of legal principles in terms of their
consequences, and thus the articulation of equitable principles, which take in to account the
sociallystructured positions of actors and the potentially differential consequences for them
of a procedurallyrational and universalistic policy. In an equitable jurisprudence, principles,
procedures, and substantive outcomes are united doctrinally as the gap between formal and
substantive rationality is closed.
1
* This is a revised version of papers presented at Annual Meeting of the Law and Society Association. It was
completed while I was a Visiting Fellow in the Human Rights Program, Harvard Law School.
1 163 U.S. 537 (1896).
2 347 U.S. 483 (1954).
3 401 U.S. 424 (1971). Dworkin does endeavor to justify Griggs; see Ronald Dworkin, Freedom’s Law: The
Moral Reading of the American Constitution (1996), ch. 6.
Mark Gould*
Mark Gould – Equity or Dworkin‘s Egalitarianism
62 ANCILLA IURIS (anci.ch) 2016: 61 – Article
I. Law as Articulated Principle
Dworkin’s jurisprudence is best understood as an attempt to justify his contention that
the Supreme Court’s 1954 decision in Brown v. Board of Education declared what was law
instead of articulating new law.4 If past Supreme Court decisions indicated that “separate,
but equal” segregation of the races was “legal,” in what sense did Dworkin argue that the
Brown decision declared that the “law,” properly understood, barred segregated schooling?
Dworkin contended that courts interpret the Constitution, statutes, and past court decisions
constructively; courts “show legal practice as a whole in its best light, to achieve equilibrium
between legal practice as they find it and the best justification of that practice.”5 Courts
extract from past legal practices the principles, the legal obligations, which make them coher
ent and, at the same time, provide the best justification for them. Rights and responsibilities
flow from past decisions; they count as legal not only when they are stated explicitly in those
decisions, but also when they follow from principles of morality that the “decisions presup
pose by way of justification.“6 Such interpretative arguments, when applied to the equal pro
tection clause of the 14th Amendment, lead Dworkin to the conclusion that the Constitution,
as a matter of law, prohibits racial segregation;7 thus the Warren Court, in adjudicating
Brown, simply declared the law.
There are several important contentions implicit in this argument. First, it constitutes the
law in terms of legal values8 while, at the same time, contending that those values legitimate
the law. Dworkin’s jurisprudence integrates a descriptive with a normative argument. Sec
ond, policies, questions of social welfare, are trumped by the legal principles that underlie
legal rights; policies have no legitimating force.9 Third, Dworkin’s argument depends on an
interpretation that makes the law a coherent whole. As such, his understanding may read out
of the law cases and statutes inconsistent with the principles that make the law the best that it
can be. Mistakes, according to Dworkin, do happen; we must recognize them for what they
are: errors in judgment with no legal force. Fourth, Dworkin presumed that the moral values
that evaluate when the law is the best it can be are implicit in the law of the United States and
the Unit ed Kingdom. The tension others find between wha t is and what ought to be i s largely
absent in Dworkin’s discussions.
A. Legal Values are the Law
Many images of the law convey the expectation that law is found in the plain text of the
Constitution, statutes or judicial decisions – that legal rules may be read more or less trans
parently from these texts. In contrast, law as integrity, Dworkin’s theory, also regards as law
the principles that constitute the best legitimation of these past decisions.10 Dworkin made
4 Dworkin’s focus was, of course, broader than Brown, but Brown is exemplary. Roland Dworkin, Law’s
Empire (1986), pp. 6, 30, 262.
5Ibid., p. 90.
6Ibid., p. 96.
7Ibid., p. 30.
8 Social values define what is morally obligatory and desirable for a system as a whole and, ideally, for all of
its members, not what is desired, preferred, by individuals.
9 A partial exception is found when courts interpret statutes.
10 Ronald Dworkin, A Matter of Principle (1985), p. 71; Dworkin (n. 4), pp. 119–120.

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