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Taking Rights Seriously RONALD DWORKIN 1.. HARD CASES 5. Legal Rights A. Legislation . . . We might therefore do well to consider how a philosophical judge might develop, in appropriate cases, theories of what legislative purpose and legal principles require. We shall find that he would construct these theories in the same manner as a philosophical referee would construct the character of a game. I have invented, for this purpose, a lawyer of superhuman skill, learning, patience and acumen, whom I shall call Hercules. I suppose that Hercules is a judge in some representative American jurisdiction. I assume that he accepts the main uncontroversial constitutive and regulative rules of the law in his jurisdiction. He accepts, that is, that statutes have the general power to create and extinguish legal rights, and that judges have the general duty to follow earlier decisions of their court or higher courts whose rationale, as l 1. The constitution. Suppose there is a written constitution in Hercules' jurisdiction which provides that no law shall be valid if it establishes a religion. The legislature passes a law purporting to grant free busing to children in parochial schools. Does the grant establish a religion? The words of the constitutional provision might support either view. Hercules must nevertheless He might begin by asking why the constitution has any power at all to create or destroy rights. If citizens have a background right to salvation through an established church, as many believe they do, then this must be an important right. Why does the fact that a group of men voted otherwise several centuries ago prevent this background right from being made a legal right as well? His answer must take some form such as this. The constitution sets out a general political scheme that is sufficiently just to be taken as settled for reasons of fairness. Citizens take the benefit of living in a society whose institutions are arranged and governed in accordance with that scheme, and they must take the burdens as well, at least until a new scheme is put into force either by discrete amendment or general revolution. But Hercules must then ask just what scheme of principles has been settled. He must construct, that is, a constitutional theory; since he is Hercules we may suppose that he can develop a full political theory that justifies the constitution as a whole. It must be a scheme that fits the particular rules of this constitution, of course. It cannot include a powerful background right to an established church. But more than one fully specified theory may fit the specific provision about religion sufficiently well. One theory might provide, for example, that it is wrong for the government to enact any legislation that will cause great social tension or disorder; so that since the establishment of a church will have that effect, it is wrong to empower the legislature to establish one. Another theory will provide a background right to religious liberty, and therefore argue that an established church is wrong, not because it will be socially disruptive, but because it violates that background right. In that case Hercules must turn to the remaining constitutional rules and settled practices under these rules to see which of these two theories provides a smoother fit with the constitutional scheme as a whole. But the theory that is superior under this test will nevertheless be insufficiently concrete to decide some cases. Suppose Hercules decides that the establishment provision is justified by a right to religious liberty rather than any goal of social order. It remains to ask what, more precisely, religious liberty is. Does a right to religious liberty include the right not to have one's taxes used for any purpose that helps a religion to survive? Or simply not to have one's taxes used to benefit one religion at the expense of another? If the former, then the free transportation legislation violates that right, but if the latter it does not. The institutional structure of rules and practice may not be sufficiently detailed to rule out either of these two conceptions of religious liberty, or to make one a plainly superior justification of that structure. At some point in his career Hercules must therefore consider the question not just as an issue of fit between a theory and the rules of the institution, but as an issue of political philosophy as well. He must decide which conception is a more satisfactory elaboration of the general idea of religious liberty. He must decide that question because he cannot otherwise carry far enough the project he began. He cannot answer in sufficient detail the question of what political scheme the constitution establishes. So Hercules is driven, by this project, to a process of reasoning that is much like the process of the self-conscious chess referee. He must develop a theory of the constitution, in the shape of a complex set of principles and policies that justify that scheme of government, just as the chess referee is driven to develop a theory about the character of his game. He must develop that theory by referring alternately to political philosophy and institutional detail. He must generate possible theories justifying different aspects of the scheme and test the theories against the broader institution. When the discriminating power of that test is exhausted, he must elaborate the contested concepts that the successful theory employs. 2. Statutes. A statute in Hercules' jurisdiction provides that it is a federal crime for someone knowingly to transport in interstate commerce "any person who shall have been unlawfully seized, confined, inveigled, decoyed, kidnapped, abducted, or carried away by any means whatsoever. . . ." Hercules is asked to decide whether this statute makes a federal criminal of a man who persuaded a young girl that it was her religious duty to run away with him, in violation of a court order, to consummate what he called a celestial marriage. The statute had been passed after a famous kidnapping case, in order to enable federal authorities to join in the pursuit of kidnappers. But its words are sufficiently broad to apply to this case, and there is nothing in the legislative record or accompanying committee reports that says they do not. Do they apply? Hercules might himself despise celestial marriage, or abhor the corruption of minors, or celebrate the obedience of children to their parents. The groom nevertheless has a right to his liberty, unless the statute properly understood deprives him of that right; it is inconsistent with any plausible theory of the constitution that judges have the power retroactively to make conduct criminal. Does the statute deprive him of that right? Hercules must begin by asking why any statute has the power to alter legal rights. He will find the answer in his constitutional theory: this might provide, for example, that a democratically elected legislature is the appropriate body to make collective decisions about the conduct that shall be criminal. But that same constitutional theory will impose on the legislature certain responsibilities: it will impose not only constraints reflecting individual rights, but also some general duty to pursue collective goals defining the public welfare. That fact provides a useful test for Hercules in this hard case. He might ask which interpretation more satisfactorily ties the language the legislature used to its constitutional responsibilities. That is, like the referee's question about the character of a game. It calls for the construction, not of some hypothesis about the mental state of particular legislators, but of a special political theory that justifies this statute, in the light of the legislature's more general responsibilities, better than any alternative theory. . . . B. The common law 1. Precedent. One day lawyers will present a hard case to Hercules that does not turn upon any statute; they will argue whether earlier common law decisions of Hercules' court, properly understood, provide some party with a right to a decision in his favor. Spartan Steel was such a case. The plaintiff did not argue that any statute provided it a right to recover its economic damages; it pointed instead to certain earlier judicial decisions that awarded recovery for other sorts of damage, and argued that the principle behind these cases required a decision for it as well. Hercules must begin by asking why arguments of that form are ever, even in principle, sound. He will find that he has available no quick or obvious answer. When he asked himself the parallel question about legislation he found, in general democratic theory, a ready reply. But the details of the practices of precedent he must now justify resist any comparably simple theory. . . . The gravitational force of precedent cannot be captured by any theory that takes the full force of precedent to be its enactment force as a piece of legislation. But the inadequacy of that approach suggests a superior theory. The gravitational force of a precedent may be explained by appeal, not to the wisdom of enforcing enactments, but to the fairness of treating like cases alike. A precedent is the report of an earlier political decision; the very fact of that decision, as a piece of political history, provides some reason for deciding other cases in a similar way in the future. This general explanation of the gravitational force of precedent accounts for the feature that defeated the enactment theory, which is that the force of a precedent escapes the language of its opinion. If the government of a community has forced the manufacturer of defective motor cars to pay damages to a woman who was injured because of the defect, then that historical fact must offer some reason, at least, why the same government should require a contractor who has caused economic damage through the defective work of his employees to make good that loss. We may test the weight of that reason, not by asking whether the language of the earlier decision, suitably interpreted, requires the contractor to pay damages, but by asking the different question whether it is fair for the government, having intervened in the way it did in the first case, to refuse its aid in the second. Hercules will conclude that this doctrine of fairness offers the only adequate account of the full practice of precedent. He will draw certain further conclusions about his own responsibilities when deciding hard cases. The most important of these is that he must limit the gravitational force of earlier decisions to the extension of the arguments of principle necessary to justify those decisions. If an earlier decision were taken to be entirely justified by some argument of policy, it would have no gravitational force. Its value as a precedent would be limited to its enactment force, that is, to further cases captured by some particular words of the opinion. The distributional force of a collective goal, as we noticed earlier, is a matter of contingent fact and general legislative strategy. If the government intervened on behalf of Mrs MacPherson, not because she had any right to its intervention, but only because wise strategy suggested that means of pursuing some collective goal like economic efficiency, there can be no effective argument of fairness that it therefore ought to intervene for the plaintiff in Spartan Steel. We must remind ourselves, in order to see why this is so, of the slight demands we make upon legislatures in the name of consistency when their decisions are generated by arguments of policy. Suppose the legislature wishes to stimulate the economy and might do so, with roughly the same efficiency, either by subsidizing housing or by increasing direct government spending for new roads. Road construction companies have no right that the legislature choose road construction; if it does, then home construction firms have no right, on any principle of consistency, that the legislature subsidize housing as well. The legislature may decide that the road construction program has stimulated the economy just enough, and that no further programs are needed. It may decide this even if it now concedes that subsidized housing would have been the more efficient decision in the first place. Or it might concede even that more stimulation of the economy is needed, but decide that it wishes to wait for more evidence-perhaps evidence about the success of the road program -to see whether subsidies provide an effective stimulation. It might even say that it does not now wish to commit more of its time and energy to economic policy. There is, perhaps, some limit to the arbitrariness of the distinctions the legislature may make in its pursuit of collective goals. Even if it is efficient to build all shipyards in southern California, it might be thought unfair, as well as politically unwise, to do so. But these weak requirements, which prohibit grossly unfair distributions, are plainly compatible with providing sizeable incremental benefits to one group that are withheld from others. There can be, therefore, no general argument of fairness that a government which serves a collective goal in one way on one occasion must serve it that way, or even serve the same goal, whenever a parallel opportunity arises. I do not mean simply that the government may change its mind, and regret either the goal or the means of its earlier decision. I mean that a responsible government may serve different goals in a piecemeal and occasional fashion, so that even though it does not regret, but continues to enforce, one rule designed to serve a particular goal, it may reject other rules that would serve that same goal just as well. It might legislate the rule that manufacturers are responsible for damages flowing from defects in their cars, for example, and yet properly refuse to legislate the same rule for manufacturers of washing machines, let alone contractors who cause economic damage like the damage of Spartan Steel. Government must, of course, be rational and fair; it must make decisions that overall serve a justifiable mix of collective goals and nevertheless respect whatever rights citizens have. But that general requirement would not support anything like the gravitational force that the judicial decision in favor of Mrs MacPherson was in fact taken to have. So Hercules, when he defines the gravitational force of a particular precedent, must take into account only the arguments of principle that justify that precedent. If the decision in favor of Mrs MacPherson supposes that she has a right to damages, and not simply that a rule in her favor supports some collective goal, then the argument of fairness, on which the practice of precedent relies, takes hold. It does not follow, of course, that anyone injured in any way by the negligence of another must have the same concrete right to recover that she has. It may be that competing rights require a compromise in the later case that they did not require in hers. But it might well follow that the plaintiff in the later. case has the same abstract right, and if that is so then some special argument citing the competing rights will be required to show that a contrary decision in the later case would be fair. 2. The Seamless Web. Hercules' first conclusion, that the gravitational force of a precedent is defined by the arguments of principle that support the precedent, suggests a second. Since judicial practice in his community assumes that earlier cases have a general gravitational force, then he can justify that judicial practice only by supposing that the rights thesis holds in his community. It is never taken to be a satisfactory argument against the gravitational force of some precedent that the goal that precedent served has now been served sufficiently, or that the courts would now be better occupied in serving some other goal that has been relatively neglected, possibly returning to the goal the precedent served on some other occasion. The practices of precedent do not suppose that the rationales that recommend judicial decisions can be served piecemeal in that way. If it is acknowledged that a particular precedent is justified for a particular reason; if that reason would also recommend a particular result in the case at bar; if the earlier decision has not been recanted or in some other way taken as a matter of institutional regret; then that decision must be reached in the later case. Hercules must suppose that it is understood in his community, though perhaps not explicitly recognized, that judicial decisions must be taken to be justified by arguments of principle rather than arguments of policy. He now sees that the familiar concept used by judges to explain their reasoning from precedent, the concept of certain principles that underlie or are embedded in the common law, is itself only a metaphorical statement of the rights thesis. He may henceforth use that concept in his decisions of hard common law cases. It provides a general test for deciding such cases that is like the chess referee's concept of the character of a game, and like his own concept of a legislative purpose. It provides a question-What set of principles best justifies the precedents?-that builds a bridge between the general justification of the practice of precedent, which is fairness, and his own decision about what that general justification requires in some particular hard case. Hercules must now develop his concept of principles that underlie the common law by assigning to each of the relevant precedents some scheme of principle that justifies the decision of that precedent. He will now discover a further important difference between this concept and the concept of statutory purpose that he used in statutory interpretation. In the case of statutes, he found it necessary to choose some theory about the purpose of the particular statute in question, looking to other acts of the legislature only insofar as these might help to select between theories that fit the statute about equally well. But if the gravitational force of precedent rests on the idea that fairness requires the consistent enforcement of rights, then Hercules must discover principles that fit, not only the particular precedent to which some litigant directs his attention, but all other judicial decisions within his general jurisdiction and, indeed, statutes as well, so far as these must be seen to be generated by principle rather than policy. He does not satisfy his duty to show that his decision is consistent with established principles, and therefore fair, if the principles he cites as established are themselves inconsistent with other decisions that his court also proposes to uphold. Suppose, for example, that he can justify Cardozo's decision in favor of Mrs MacPherson by citing some abstract principle of equality, which argues that whenever an accident occurs then the richest of the various persons whose acts might have contributed to the accident must bear the loss. He nevertheless cannot show that that principle has been respected in other accident cases, or, even if he could, that it has been respected in other branches of the law, like contract, in which it would also have great impact if it were recognized at all. If he decides against a future accident plaintiff who is richer than the defendant, by appealing to this alleged right of equality, that plaintiff may properly complain that the decision is just as inconsistent with the government's behavior in other cases as if MacPherson itself had been ignored. The law may not be a seamless web; but the plaintiff is en