National Law University Odisha, Cuttack

LAW AND JUSTICE IN GLOBALIZING WORLD

BOOK REVIEW
On

A MATTER OF PRINCIPLE BY RONALD DWORKIN

SUBMITTED TO

Assistant Prof A. Eluckiaa

BIKASH CHANDRA JHA (2020/LL.M/017)

1
 CONTENTS

Ch. No. TITLE PAGE NO

1 INTRODUCTION 3

2 5
BRIEF SUMMARY

3 CRITICAL EVALUATION 37
 INTRODUCTION

A MATTER OF PRINCIPLE, by Ronald Dworkin (Cambridge: Harvard University

Press, 1985).

The new collection of essays by Ronald Dworkin, A Matter of Principle, expands and
delves into the arguments of his earlier collection, Taking Rights Seriously (Harvard
University Press, 1977). In this new book, Dworkin responds to the critiques that have
been addressed to the thoughts expressed in his earlier volume. At the same time, he
develops his thinking and makes his philosophy clear.

The book is divided into six parts; further sub-divided into 19 Chapters.

Part One and Two "The Political Basis of Law" and "Law as Interpretation", directly
support the foundation of Taking Rights Seriously. In addition, Dworkin discusses the
distinction between decision-making principles, decisions based on the interests of
defendants and litigants, judicial conceptions of the law and fundamental political
principles of the regime, and decisions based on policy or utility. He also elaborates in
more detail on his particularly provocative and controversial argument that judges should,
and most often decide "hard cases" through principled decisions.

Dworkin's next series of essays discusses the proper judicial approach in deciding cases.
Dworkin agrees with positivists that, when the rules are clear, they control and, in such
cases, litigants are entitled to a decision consistent with these rules. In cases where no rule
clearly controls, Dworkin breaks away from positivism and insists that there is a unique
and correct response. The answer lies in the examination of the principle or principles that
apply to the case.

Part Three is entitled as "Liberalism and Justice," in which Dworkin discusses the
political right to equal concern and respect that, in his view, is our central individual right
and the foundation of the Anglo-American tradition of rights. In "Liberalism", Dworkin
contends that the right to equal concern and respect is the heart of liberalism as a political
philosophy.
Dworkin therefore rejects utilitarianism, wealth maximization, the intention of the
drafters of the Constitution and the commitment to treat as central foundations in the
pursuit of principles. Instead, he turns to what he sees as the core principle from which
everything else seems to flow. In Dworkin's opinion, this is the principle of equality. In
particular, he believes that all citizens have the right to government treatment that gives
them equality of dignity and respect.

Part Four titled as "The Economic View of Law". Dworkin takes on Posner, Calibresi,
and their fellow countrymen, who argue that the law in general, and judges in particular,
should aim to increase the total richness of the community. In two technical essays,
Dworkin defends his view that rights are to be assigned on the basis of justice or equal
concern and respect, not communal wealth maximization, and argues that the whole
economic approach to law "lacks any defensible philosophical base.

In the end, Dworkin's commitment to neutrality and equality should allow for one
fundamental exception. There is no neutrality when it comes to the principle of neutrality,
and there is no equality when it comes to the principle of inequality.

Fortunately, they are followed by Parts Five and Six, where Dworkin joins
contemporary political discussions on reverse discrimination and press freedom. The
three essays on reverse discrimination strongly and subtly call for affirmative action
programs, including those using racial quotas.
 BRIEF SUMMARY

CHAPTER I: POLITICAL JUDGES AND THE RULE OF LAW

This book deals with two questions and their relationship. First is all about how judges
do and should decide hard cases. Do judges in the United States and Great Britain
make political decisions? According to author, judges' decisions must be political. In
many cases, the decision of one judge will be approved by one political group and will
not please others, because these cases have implications for political controversies. For
example, The Supreme Court must decide crucial constitutional issues in the United
States that are also political issues whereas in Britain, the courts must determine cases
that require an interpretation of labour legislation, such as cases involving the validity of
secondary picketing, where one interpretation is preferred by the Trades Union Congress
and another by the Confederation of British Industries. But in the book called The
Politics of the Judiciary, J. A. G. Griffiths argued that recent House of Lords decisions
were political decisions, even though the court was struggling to make it seem that the
decisions have been made for technical rather than political reasons.
Author then made an important distinction between two types of political arguments upon
which judges should rely in reaching their decisions. First one is political principle that
refer to individual citizens' political rights and Second is political policy that suggest that
a specific action would work to achieve general welfare or public interest. According to
author judges should rest their decisions on arguments of political principle, but not in
arguments of political policy.
The second question is What is the rule of law? Author differentiated Rule of Law into
two concepts i.e., “Rule book conception” and the “rights conception”. Rule book
conception emphasizes that the power of the state should never be exercised against
individual citizens except in compliance with the rules specifically laid down in the public
rule book, which is open to everyone. These public rules must be followed by the
government as well as ordinary citizens until they are changed. In one way, the concept
of the rule-book is rather limited, since it stipulates nothing about the content of the rules
that can be placed in the rule book. It just maintains that before it is altered, whatever
rules are put in the book must be followed.
Author stated that the content of the rules in the rule book is of interest to those who have
this definition of the rule of law, but this is a matter of substantive justice, and that
substantive justice is an independent ideal, not part of the ideal of the rule of law. The
second conception of the rule of law is the “rights” conception. It means that people have
moral rights and obligations with regard to each other, and political rights with regard
to the state as a whole. It ensures that these moral and political rights be recognised in a
positive law so that they can be upheld by courts or other judicial institutions of a familiar
sort upon the request of individual people.
According to author, rights conception is more complex than the rule-book conception
because the later has only one dimension i.e., unless otherwise stated in the rule book, it
will use its police power over individual citizens. But the rights conception has three
dimensions of failure such as state might fail to enforce the individual rights, or declines
to recognise rights or might fail in the fairness of its enforcement of rights.
Author argued any government that very much behaves contrary to its own rule book
cannot be just, no matter how wise or rational its institutions otherwise are. But
compliance with the rule book is simply not sufficient for justice; if the laws are unfair. A
society that achieves a high rating on any of the dimensions of the conception of rights is
almost definitely a just society, although a desirable society may be mismanaged or lack
other qualities. But it is generally accepted that the conception of rights is not necessary
for a just society, since it is not necessary for people to be able to assert adjudication and
compliance of these rights as individuals in order to protect citizens' rights. A government
of wise and just officials will protect rights (so that the argument works) on its own
initiative, with no procedure whereby citizens can challenge, as individuals, what those
rights are.
The conception of the rules book has both negative and positive advice on hard cases. He
argues, positively, that judges should adjudicate difficult cases by trying to find out what
is “really” in the book of rules, in one sense or another of this claim. Then he argues,
negatively, that judges should never decide such cases on the ground of their own
political judgment, because a political decision is not a decision about what is in the rule
book, but rather a decision about what ought to be there. The conception of the rulebook
supports the conventional British view of political judges.
So, a judge following the rights conception must not decide a hard case by appealing to
any principle that is in that way incompatible with the rule book of his jurisdiction. But he
still decides numerous cases on political grounds, because in these cases contrary to
moral principles directly in point are all compatible with the rule book. Two judges will
decide a case that is so difficult differently because they have different views on citizens'
moral rights. Any judge determining the issue of principle determines as he does not
because all alternatives are excluded by what is already in the rule book that, but because
he believes that his principle is right, or at least closer to correct, than other principles
which are also not excluded. So, his decision, in the context mentioned, is a political
decision. It is precisely the sort of political decision that is continually condemned by the
principle of the rule-book.
Therefore, the practical question, which asks whether judges can make political decisions
in hard cases, is related to the theoretical question of which of the two concepts of the
rule of law is superior and the Judges should remain outside the political arena.

CHAPTER II: THE FORUM OF PRINCIPLE

The second chapter started with the question as to how judges can decide such cases
apolitically if the text of the Constitution is not itself decisive? Two ideas have been put
forward by the author. First is the idea of constitutional intent—often referred to as the
“original” intent or the intent of the “drafters” of the Constitution. Let's say the judges
discovered how the drafters intended to understand the uncertain provisions of the
Constitution. If judges follow that original intent, they would not be making substantive
choices themselves but only enforcing choices made long ago by others, choices that have
been given authority by the people’s ratification and acceptance of the Constitution.
Second is the strategy which is not based on the idea of original intent, but rather on a
clear distinction between substantive and procedural matters. In any event, judicial
review of the political process simply governs democracy; it does not seek to overturn it
like substantive judicial review.
According to author, both ways end in failure because judges cannot decide what the
pertinent intention of the framer was or which political process is really fair or
democratic because they cover up these substantive decisions with procedural piety.
Interpretation and Constitutional Law
Author differentiate “interpretive” from “non-interpretive” theories of judicial review. An
Interpretive theory must be based on an interpretation of the Constitution itself. This
might be a matter of construing the text, or determining the intention of the
“Framers,”. Non-interpretive theories are said to suppose that the Court is at least
sometimes justified in holding legislative decisions to standards taken from some
source other than the text, like popular morality, or sound theories of justice, or some
conception of genuine democracy.
According to Author, any known theory of judicial review is interpretive in the sense that
it seeks to provide an understanding of the Constitution as an original, fundamental legal
document, and also aims to integrate the Constitution into our constitutional and legal
practice as a whole. “Non- interpretive” theory neither disregard the text of the
Constitution nor the motives of those who made it; rather they seek to place these in the
proper context.
Author then emphasised that even though all constitutional theories are generally
interpretive, there is still a significant difference between those theories that interpret
constitutional practice in such a way that the purpose of the constitutional framers is
decisive and those who do not. Some theories hold that the best interpretation of our legal
practice as a whole enables the Court to override legislative decisions only when it was
the Framers' intention that this should be done; whereas other theories claim, on the
contrary, that the best interpretation allows interference by the Court even when that was
not the Framers' intention.
Many constitutional scholars seem to believe, to the contrary, that the theme of legislative
intention including constitutional intention is well defined in legal practice so that once
all pertinent psychological facts are known there can be no room for doubt or debate
about what the legislative or constitutional intention was.

ABSTRACT AND CONCRETE INTENTIONS

Author said that the most important choice, in constructing a conception of

constitutional intention, is the choice between an abstract and a concrete statement of
that intention. He explained the concept of abstract and concrete intention by an
illustration. “Suppose a congressman votes for a statute declaring combinations in
restraint of trade illegal, and he believes that combinations that restrain trade should be
prohibited, and this is why he votes for the bill. But he also believes that a forthcoming
merger in the chemical industry does not restrain trade, and he expects that no court will
decide that it does. What is his “legislative” intention with respect to this merger? We
could say that it intends to prohibit combinations that effectively restrict trade, or it does
not intend to prohibit chemical merger”. The first is a relatively abstract statement of its
intent, which corresponds to the words for which he voted. The latter is a much more
concrete statement because it considers not only those words, but also its own beliefs
about their proper application. It makes a distinction between the two statements that we
consider appropriate for our view of legislative intent. If we go with the abstract
statement, then judges who believe that chemical merger restricts trade will believe that
they are serving the intentions of the congressman by prohibiting it. If we choose the
concrete declaration, the prohibition of the merger runs counter to its intentions, whether
or not the merger impedes trade.
If the abstract statement is chosen as the appropriate mode of investigation into the
original intention, then judges must make substantive decisions of political morality not
in place of judgments made by the “Framers” but rather in service of those judgments.
The intentionalists might be able to defend their choice of the concrete intention by
appealing to some controversial theory of representative democracy, or some other
political theory, that makes legislators’ concrete intentions decisive for interpretation.
So, the author concluded that this is not a matter of finding which of the two intentions a
particular Framer had; Nor can we prove, with the help of historical evidence, that the
concrete intentions of the Framers were dominant for them. Perhaps the reason judges
should look to abstract rather than concrete intentions (if they should) lie in some
procedural theory about the proper level of abstraction for a democratic constitution.
Author’s view is that the Court should make decisions of principle rather than policy
decisions about what rights people have under our constitutional system rather than
decisions about how the general welfare is best promoted and that it should make these
decisions by elaborating and applying the substantive theory of representation taken
from the root principle that government must treat people as equals.

CHAPTER III: PRINCIPLE, POLICY, PROCEDURE

The Author in this chapter started acknowledging the criminal system of United States,
Britain or any other country and realised that everywhere the system is unjust and
therefore violates the individual rights. Then he focused on the problem i.e., Is it the
case, however costly these proceedings can be for the entire society, that each person
has the right to be not guilty if innocent, to have the right to the most specific
procedures practicable to test his guilt or innocence? He argued that trial procedures and
rules of evidence entirely on the basis of cost-benefit calculations about the best interests
of society as a whole, balancing the interests of the accused against the interests of those
who would gain from public savings in a greatest-good-of-the-greatest-number way.
Would that cool utilitarian approach be consistent with our fervent declaration that the
innocent has a right to go free? Author stated that questions of evidence and procedure
must be decided by striking “the right balance” between the interests of the individual and
the interests of the community as a whole, which merely restates the problem. Indeed, it
is worse than a mere restatement, because the interests of each individual are already
balanced into the interests of the community as a whole, and the idea of a further balance,
between their separate interests and the results of the first balance, is itself therefore
mysterious.
Civil law also includes puzzles about substance and procedure of criminal law, which
may be less drastic in the confrontation between particular questions and general
interests, but it is more complicated. Very frequently, when the plaintiff makes his case as
in pointing out the position which gives him the right he claims now, legislator claimed
that if individuals like the defendant were allowed legal access under what the law
stipulates, the public as a whole would benefit from a utilitarian type. However, the
plaintiff's claim, on this statute, is a claim of rights. So, the same problem exists in civil
law as well.
The two questions which the author posed about the criminal law reappear here. Is the
role of social welfare in fixing civil procedure consistent with our understanding that if
the plaintiff or defendant has a legal right to win, he or she should win even though
the public would then be worse off? If it is consistent, are the parties to a civil suit
entitled to any particular level of accuracy? Author stated that plaintiff in a civil suit
asserts a right to win, not merely an argument of policy that his winning would be in the
general interest. When the plaintiffs title to win is established uncontroversially by some
doctrinal authority, then everyone would agree that the plaintiff’s argument (if just
pointing at a statute can be considered an argument) is an argument of principle rather
than policy. But when competent lawyers are divided about which decision is required
because the only pertinent statutes or precedents are ambiguous, or there is no doctrinal
authority directly in point. In such a case the plaintiff s lawyers will present an argument
as to why his case is stronger than defendant’s. At the end of the day the judge will decide
by preferring one of these two arguments, or perhaps by providing a different one of their
own. Thus, even in hard cases like these the arguments that lawyers put forward and that
judges accept are arguments of principle rather than arguments of policy.
The author again reiterated that judges adjudicate civil claims through arguments of
principle rather than policy, even in very hard cases. Judges do not grant relief to the
plaintiff demands unless satisfied that the plaintiff is entitled to that relief, or deny relief
if they are satisfied that the plaintiff is so entitled. They never take considerations of
social consequence into account in fixing rules of evidence or other procedural rules.
Author then propose the following two principles of fair play in government. First, any
political decision must treat all citizens as equals, i.e., as equally entitled to concern and
respect. It is not part of this principle that government may never deliberately impose a
greater bare harm on some than others, as it does when it levies special import taxes on
petrol or gasoline. It is part of the principle that no decision may deliberately impose on
any citizen a much greater risk of moral harm than it imposes on any other. Second, if a
political decision is taken and announced that respects equality as demanded by the first
principle, then a later enforcement of that decision is not a fresh political decision that
must also be equal in its impact in that way. The second principle appeals to the fairness
of abiding by open commitments fair when adopted the fairness by the result of a coin
toss when both parties reasonably agreed to the toss.
Then a question comes into picture which states as to how a society should decide how
important moral harm is. The author stated under certain circumstances that issue
should be left to democratic institutions to decide, not because a legislature or
parliament will necessarily be correct, but because that is a fair way, in these
circumstances, to decide moral issues about which reasonable and sensitive people
disagree.
Author argued that both parties should have procedural right, though in most cases only
one will rely on that right to demand some procedural benefit. But neither party has any
right against procedures more accurate than the accuracy required by that right. It might
therefore seem that once it is clear that the party contending for the admission of some
evidence has no right to have it, a genuine policy issue is still presented whether the
public would gain or lose more by permitting evidence of this character. If the public
would gain more from its disclosure, then the reason for disclosing it must be the public’s
interest rather than the procedural rights of either party, and that is just to say that the
reason for admitting it must be policy rather than principle.
However, the author concluded that the judgment about what procedures administrative
agencies should follow is always or necessarily a second-order policy decision not to be
taken by courts and the “special concern” must be the fact or risk of some moral harm,
not just a special kind of bare harm. But this cannot be only the risk of substantive
injustice, for that is the harm contemplated by the instrumental interpretation of the
procedural requirements.

CHAPTER IV: CIVIL DISOBEDIENCE AND NUCLEAR PROTEST

In this chapter, author discussed about the civil disobedience that has been much
canvassed in Britain and United States. The United States suffered a long series of
political divisions that made the dilemmas of legality particularly acute. Slavery was the
first issue to produce a philosophical literature, a national debate. Europeans are also
familiar with the more recent occasions of disobedience in the United States. Political
philosophers have devoted a great deal of attention to the definition of civil disobedience,
to the question of how it is different from other kinds of politically motivated criminal
activity. It is also different from the civil war that breaks out within a territory when one
group challenges the legitimacy of the government or of the dimensions of the political
community.
According to author, Civil disobedience is a feature of our political experience, not
because some people are virtuous and other wicked, or because some have a monopoly
of wisdom and others of ignorance but because people disagree, sometimes profoundly,
in the way independent people with a lively sense of justice will disagree, about very
serious issues of political morality and strategy. So, a theory of civil disobedience is
useless if it declares only that people are right to disobey laws or decisions that are
wicked or stupid, that the rightness of the disobedience flows directly from the wrongness
of the law. Almost everyone will agree that if a particular decision is very wicked, people
should disobey it.
Civil disobedience is of three types. Integrity-based civil disobedience is when person
personal integrity, his conscience, forbids him to obey the law. When the majority is
pursuing its own interests and goals unjustly because in disregard of the rights of
others, the rights of a domestic minority in the case of the civil rights movement and of
another nation in the case of the war. This is “justice-based” civil disobedience. These
first two kinds of civil disobedience involve, though in different ways, convictions of
principle. There is a third kind which involves judgments of policy instead. People
sometimes break the law not because they believe the program, they oppose is immoral or
unjust, but because they believe it very unwise, stupid, and dangerous for the majority as
well as any minority.
Integrity-based disobedience is defensive. It aims only that the actor not to do something
when his conscience forbids. Justice based disobedience is, in contrast, instrumental and
strategic. It aims at an overall goal the dismantling of an immoral political program.
According to author, Justice-based disobedience use two main strategies to achieve its
political goals. First it hopes to force the majority to listen to arguments against its
program, in the expectation that the majority will then change its mind and disapprove
that program. The second strategy is non-persuasive. It aims not to change the majority’s
mind, but to increase the cost of pursuing the program the majority still favours, in the
hope that the majority will find the new cost unacceptably high.

The author then come finally to policy-based civil disobedience. When the actors seek to
reverse a policy because they believe the policy, they oppose is a bad policy for everyone,
not just for some minority; they think they know what is in the majority’s own interest, as
well as their own, better than the majority knows. He then distinguishes persuasive from
non-persuasive strategies in this new context. Persuasive strategies aim to convince the
majority that its decision, about its own best interests, is wrong, and so to disfavour the
program it formerly favoured. Non-persuasive strategies aim rather to increase the price
the majority must pay for a program it continues to favour. The distinction between
persuasive and no persuasive strategies is even more important in the case of policy-based
than justice-based disobedience, because it seems problematic that non-persuasive
strategies could ever be justified in a working theory of the former.
He then analysed Would the fact that we believed this justify illegal acts whose point was
to impose so high a price, in inconvenience and insecurity, that the majority would
abandon its economic policy, though it remained convinced that it was the best policy?
Author said no. But of course, the risks of bad nuclear strategy are vastly greater than
the risks of mistaken economic policy.
Should people who act out of civil disobedience court punishment or even demand to be
punished? Author then stated that Socrates was wrong in thinking that civil disobedience
is incomplete without punishment, without the actor presenting himself and it cannot be
sound when we are considering integrity-based disobedience. Punishment may of course
be part of the strategy when disobedience is justice- or policy-based.
So, author finally concluded that the law properly understood might support what we call
civil disobedience, can be an effective argument only when we reject this aspect of
positivism and insist that, though the courts may have the last word in any particular case
about what the law is, the last word is not for that reason alone the right word.
CHAPTER V: IS THERE REALLY NO RIGHT ANSWER IN HARD
CASES?
This chapter starts with the question i.e., Is there no right answer to a question of law?
Suppose Tom and Tim have signed a contract on Sunday, and Tom now sues Tim to
enforce the terms of the contract, whose validity Tom contests. Does it is necessary for
the judges to look for the right answer to the question of whether Tom’s contract is valid,
even though the community is deeply divided about what the right answer is? Or is it
more realistic to say that there simply is no right answer to the question? This is a
significant topic in various disagreements over what the law is. Many titles discussed,
including the issue of whether in hard cases judges always have discretion and whether
what some legal philosophers call "lapses" in the law are present. According to author,
the following characteristic are found in legal terms, such as the definition of a binding
contract, civil liability and crime: if the concept is in any given case, judge have at least a
prima facie requirement to rule on a legal claim; but if the concept does not exist, then
judges must decide on an individual basis. Those are called "dispositive" concepts.
For example, lawyers tend to be assuming that an agreement of promises is a legitimate
contract, or is not. If it does, judges would at least have a prima facie obligation, if
demanded under its jurisdiction, to uphold those promises; but if does not, they at least
have a prima facie duty not to do so for contractual purposes. But is it true that an
exchange of promises always either does or does not constitute a valid contract, or that
someone always is either liable or not liable in tort, or guilty or not guilty of a crime?
Author then distinguished two versions of no-right-answer thesis. According to the first
version, the third alternative in the legal issue also ignores that an exchange of
promises may not be a valid contract, such that judges have a duty to enforce the
exchange, nor a contract that is not valid, with the consequence that judges have a duty
not to enforce it, that may be considered an "inchoate" contract. In the other hand, the
second version of the thesis of no-response implies that, in that context, no logical
space occurs between proposals that a contract is valid and not valid or that a person is
responsible or that a crime is or isn't. It believes there's no third way, but refuses that
one of the two alternatives is always available so one of them can't be valid.
If one of the thesis versions is correct, it may be wrong to say that either party has the
right to decide and the right to accept that there is the judge's discretion in either way.
There are also numerous lawsuits. Yet this major disparity remains. In the case of the first
version, the law affirms this discretion, since the law distinguishes circumstances under
which the exchange of promises, for example, falls into a separate, consequent category
of discretion. On the other hand, when the second version is discreet, the judge must do
what is required, not in affirmative but by default: because the law does not stipulate
anything, even discretion.

THE FIRST VERSION

If anyone claimed that there is always a right answer to the question of whether judges
have a duty to enforce an exchange of promises, or to refuse to enforce the exchange, he
would be making a mistake of the sort the first version supposes. The first version of the
non-right answer thesis argues that contrary to the way the lawyers seem to speak, our
own legal system is really this way; that is, there is a space between each dispositive
concept and its obvious negating, which is covered by a distinct concept, like the notion
of an inchoate contract. The author then turns instead to the second version of the no-
right-answer thesis itself. And If the second version fails, the argument from realism
collapses; if the second version holds, the argument from realism is of no independent
philosophical interest.
THE SECOND VERSION
Three arguments that support the second version of the no-right-answer thesis. The first
supposes that the inevitable vagueness or open texture of legal language sometimes
makes it impossible to say that a particular proposition of law is either true or false. The
second supposes that propositions of law have a hidden structure, explicated by legal
positivism, that explains how it may be true neither that Tom’s contract is valid nor that
his contract is not valid. The third fixes on the fact that a proposition of law is contested
in such a way that neither side has any hope of proving that the other is wrong; this
argument supposes that propositions of law that are inherently controversial cannot be
either true or false.
Author stated that the issue of whether there is a right answer to any particular question
of law will crucially depend upon which form of the legal enterprise is in play. If it is like
the first form of the literary exercise, then the question of whether Tom’s contract is valid
will not have a right answer on the simple facts. But if it is like the third form, on the
other hand, that question will almost certainly have a right answer, because it is very
unlikely that one answer will not provide a better fit in the sense just described.
The third form of the literary exercise is therefore an enterprise that makes trouble for the
demonstrability thesis. A proposition of law, like the proposition that Toni’s contract is
valid, is true if the best justification that can be provided for the body of propositions of
law taken to be settled provides a better case for that proposition than for the contrary
proposition that Toni’s contract is not valid, but is false if that justification provides a
better case for that contrary proposition.
The question, therefore, of whether there are no-right-answer cases in a particular
jurisdiction and whether such cases are rare or numerous is not an ordinary empirical
question. According to author such cases, must be extremely rare in the United States and
Great Britain. Someone who disputes this cannot, if the arguments of this essay are right,
establish his case simply by relying on the demonstrability thesis or the other a priori
arguments considered earlier. But nor is he likely to succeed by attempting to find actual
examples of no-right-answer cases in a case-by-case search of the law reports.

CHAPTER VI: HOW LAW IS LIKE LITERATURE

In this chapter, the author is improving the understanding of law by comparing legal
interpretation with interpretation in other fields of knowledge, particularly literature. The
central problem of analytical jurisprudence is this: What sense should be given to
propositions of law? The puzzle emerges when propositions of law appear to be
descriptive, they are not about what should be in the statute, but about just what they
describe it has proven exceedingly challenging. Legal positivists rejoice in the idea that
the policy measures are absolutely descriptive: they are historical objects. In their
interpretation, a policy is valid only if a particular occurrence of a certain form of statute
has arisen, but not otherwise. Other possibilities are to suppose that controversial
propositions of law, like the affirmative action statement, are not descriptive at all but are
rather expressions of what the speaker wants the law to be. Another is more ambitious:
controversial statements are attempts to describe some pure objective or natural law,
which exists in virtue of objective moral truth rather than historical decision. decision.
Both of these take some legal statements to be purely evaluative as distinct from
descriptive.
The better alternative would be: propositions of law are not merely descriptive of legal
history, nor are they simply evaluative in some way divorced from legal history. They are
interpretive of legal history, which combines elements of both description and evaluation
but is different from both. Law is a matter of interpretation because they understand
interpretation in a certain way. When a statute is unclear on some point, because some
crucial term is vague or is ambiguous, lawyers say that the statute must be interpreted,
and they apply what they call “techniques of statutory construction.” Much of the
literature suggests that the interpretation of a given text is a question of figuring out what
the authors intended by using their terms. However, lawyers concede that the author had
little to do with certain topics, and that his purpose could not be revealed on some cases.
Lawyers states that whenever judges pretend, they are discovering the intention behind
some piece of legislation, this is only a smoke screen behind which the judges impose
their own view of what the statute should have been.
Interpretation as a technique of legal analysis is less familiar in the case of the common
law, but not unfamiliar. The idea of interpretation cannot serve as a general account of
the nature or truth value of propositions of law, however, unless it is cut loose from these
associations with speaker’s meaning or intention. Otherwise, it becomes simply one
version of the positivist’s thesis that propositions of law describe decisions taken by
people or institutions in the past.
Interpretation of a text attempts to show it as the best work of art it can be, and the
pronoun insists on the difference between explaining a work of art and changing it into a
different one. Of course, a theory of interpretation must contain a sub theory about
identity of a work of art in order to be able to tell the difference between interpreting and
changing a work. Nevertheless, anyone who interprets a work of art relies on beliefs of a
theoretical character about identity and other formal properties of art, as well as on more
explicitly normative beliefs about what is good in art. Both sorts of beliefs figure in the
judgment that one way of reading a text makes it a better text than another way.
AUTHOR'S INTENTION
Author argued that if we agree that interpretation theories are not independent analysis
of what interpretation implies but rather based on normative art theories and are relying
on them, we must accept that they are susceptible to complaints against the traditional
theory on which they depend. In the first of these objections, the author’s intention theory
presents itself not as the upshot of the aesthetic hypothesis not as the best theory of
interpretation within the design stipulated by that hypothesis but rather as a rival to it, a
better theory about what kind of thing an interpretation is. But it is very difficult to
understand the author’s intention theory as any sort of rival to the present hypothesis. The
second objection is more interesting. Intentions play a key part in the understanding of the
author's mind. However, as far as I can see, they misinterpret some nuances in this case,
particularly they do not understand the relationship between motives and beliefs in a
work.
From the simultaneous claim in literature, it is known that definition of legal
interpretation is not a privilege for any judge to find something he believes could have
been there in doctrinal history. The same disparity occurs between interpretation and
ideal. It is the responsibility of a judges to interpret the legal history he finds, not to
invent a better history. There is clearly no algorithm to determine whether a certain
interpretation sufficiently fits that history not to be ruled out. If a law or constitution is
part of the tradition of doctrine, so the intention of the speaker will play a role.
Judges develop and refine constitutional theory that deals with the questions on which the
interpretation would rely in detail; this is their legal philosophy. The judges develop a
particular approach to legal comprehension. It contains all the systemic characteristics,
the general need for an understanding that blends with the tradition of doctrine and
substantive statements surrounding social objectives and concepts of justice. Therefore,
every judge's position of the correct interpretation is the product of the opinions other
judges do not have to express. If a judge agrees that the primary function of a justice
system is an economic one, the main reason it can fulfil is to reduce the total economic
impact of injuries in previous accident decisions. Other judges, who find any such picture
of the law’s function distasteful, will discover no such strategy in history but only,
perhaps, an attempt to reinforce conventional morality of fault and responsibility.

CHAPTER VII: ON INTERPRETATION AND OBJECTIVITY

In this chapter, author discussed about the objections based on interpretative judgments
and claims. According to author, Interpretive claims are interpretive, that is, and so
dependent on aesthetic or political theory all the way down. It means that the distinction
between interpreting and inventing is itself the product of an interpretive judgment,
because to rely on one kind of interpretive conviction or instinct about which readings
would destroy the artistic integrity of a text in order to set aside as ineligible readings
that, if they were eligible, would make the work very good indeed. The author’s substitute
account of the sense of interpretive judgments, provoke two very different and much
more important objections. The first is: interpretation is not different from invention. The
distinction between these two activities presupposes that in the case of interpretation a
text exercises some constraint on the result. But from the author’s point of view, the text
itself is the product of interpretive judgments. The second objection i.e., It insists that an
interpretation cannot really be true or false, good or bad, because the soundness of an
interpretation turn on the question of which reading of a poem or novel or series of cases
makes it best aesthetically or politically, and there can be no objective “fact of the matter”
about a judgment of that sort, but only different “subjective” reactions.
THEORY DEPENDENCE
It declares that if all parts of an interpretation are theory-dependent in the way, then
there can be no difference between interpreting and inventing because the text can
exercise only an illusory constraint over the result. According to author, this objection
can act as checks on one another in the way necessary to avoid this circularity and give
bite to interpretive claims. It might deny the very possibility that different parts of a
general theoretical structure could ever act as constraints of checks on one another. Or it
might accept this possibility but deny its application to the case of literary or legal
interpretation. If the challenge is wholesale, denying the possibility of internal theoretical
constraint, it contradicts an important theme in contemporary philosophy of science.
The other strategy is appealing because skeptics not only have moral or interpretive
opinions but also treat these as beliefs. When people make interpretive or moral or legal
judgments, it says, they are playing a certain game of make-believe, asking themselves
which interpretation would be better if any really could be better, or what would be
morally right if anything really could be morally right, and so forth. But according to
author, I think that the problem of objectivity, as it is usually posed, is a fake because the
distinction that might give it meaning, the distinction between substantive arguments
within and sceptical arguments about social practices, is itself a fake. So, the question of
what “independence” and “reality” are is a question within that practice, so that whether
moral judgments can be objective is itself a moral question, and whether there is
objectivity in interpretation is itself a question of interpretation. This threatens to make
scepticism not inevitable but impossible

CHAPTER VIII: LIBERALISM

The author in this chapter analysed the term liberalism. The certain conception of
equality, which is called as liberal conception of equality, is the nerve of liberalism. But
that supposes that liberalism is an authentic and coherent political morality, so that it can
make sense to speak of “its” central principle, and the history just described may be taken
to suggest that that is not. “The word ‘liberalism’ has been used, since the eighteenth
century, to describe various distinct clusters of political positions, but with no important
similarity of principle among the different clusters called ‘liberal’ at different times.
Liberalism shares the same constitutive principles with many other political theories,
including conservatism, but is distinguished from these by attaching different relative
importance to different principles. The theory therefore leaves room, on the spectrum it
describes, for the radical who cares even more for equality and less for liberty than the
liberal, and therefore stands even farther away from the extreme conservative. The liberal
becomes the man in the middle, which explains why liberalism is so often now
considered an untenable compromise between two more forthright positions. But if the
nerve of the theory remains the competition between liberty and equality as constitutive
ideals, then the theory cannot succeed.
Author then distinguished between two different principles that take equality to be a
political ideal. The first requires that the government treat all those in its charge as
equals, that is, as entitled to its equal concern and respect. The second principle
requires that the government treat all those in its charge equally in the distribution of
some resource of opportunity, or at least work to secure the state of affairs in which
they all are equal or more nearly equal in that respect. But if it is to be look only from
the economic-political controversies, then the liberals want more equality in the sense of
the second principle than conservatives do. According to author, the first principle is
more fundamental because for both liberals and conservatives, the first is constitutive and
the second derivative. Sometimes treating people equally is the only way to treat them as
equals; but sometimes not. Therefore, there is broad agreement within modern politics
that the government must treat all its citizens with equal concern and respect. Different
people hold very different conceptions of what that abstract principle requires in
particular cases.
What does it mean for the government to treat its citizens as equals? It is to be answered
in two different ways. The first supposes that government must be neutral on what might
be called the question of the good life. The second supposes that government cannot be
neutral on that question, because it cannot treat its citizens as equal human beings without
a theory of what human beings ought to be.
The first theory of equality supposes that political decisions must be independent of any
particular conception of the good life, or of what gives value to life. Since the citizens
of a society differ in their conceptions, the government does not treat them as equals if
it prefers one conception to another, either because the officials believe that one is
intrinsically superior, or because one is held by the more numerous or more powerful
group. The second theory argues, on the contrary, that the content of equal treatment
cannot be independent of some theory about the good for man or the good of life,
because treating a person as an equal means treating him the way the good or truly
wise person would wish to be treated. Good government consists in fostering or at least
recognizing good lives; treatment as an equal consists in treating each person as if he
were desirous of leading the life that is in fact good, at least so far as this is possible.
The liberal, therefore, needs a scheme of civil rights whose effect will be to determine
those political decisions that are antecedently likely to reflect strong external preferences
and to remove those decisions from majoritarian political institutions altogether. The
scheme of rights necessary to do this will depend on general facts about the prejudices
and other external preferences of the majority at any given time, and different liberals will
disagree about what is needed at any particular time.
Scepticism cannot underpin liberalism. Its constitutional morality provides that people
must be treated by their own Government as equals, not because political morality is not
right or wrong, but because it is right. Liberalism does not rely on any single theory of
personality, nor does it contradict the idea that most people believe they should be
positively engaged in society. Liberalism is not self-contradictory: a liberal conception of
equality is a principle that requires justice and not a way of life for the people and liberals
are, as such, indifferent to whether they choose to speak out on political issues, to lead
eccentric lives, or to behave as the Liberals prefer.
So, against this preference-utilitarianism it is worth pointing out that, as people's
preferences will tend to support the circular as well as unfair system. But liberalism does
not make the content of preferences the test of equity in distribution, as I have described
it. Rather, it aims to protect people whose needs are special or whose ambitions are
eccentric, because the increased popular preference is strengthened institutionally and
socially, for that is why the liberal system of economic and political rights is so based
and justified.

CHAPTER IX: WHY LIBERALS SHOULD CARE ABOUT EQUALITY

While liberalism is frequently discussed as a single political theory, but the distinction
between the two fundamental forms of liberalism is of great importance. Liberalism
based on neutrality takes as fundamental the idea that government must not take sides
on moral issues, and it supports only such egalitarian measures as can be shown to be
the result of that principle. Liberalism based on equality takes as fundamental that
government treat its citizens as equals, and insists on moral neutrality only to the
degree that equality requires it. Liberalism based on neutrality finds its most natural
defence in some form of moral scepticism, and this makes it vulnerable to the charge that
liberalism is a negative theory for uncommitted people. Moreover, it offers no effective
argument against utilitarian and other contemporary justifications for economic
inequality, and therefore provides no philosophical support for those who are appalled at
the Reagan administration’s economic program. Liberalism based on equality suffers
from neither of these defects. It rests on a positive commitment to an egalitarian morality
and provides, in that morality, a firm contrast to the economics of privilege.
Author stated that the main principles of liberalism based on equality. This form of
liberalism insists that government must treat people as equals in the following sense. It
must impose no sacrifice or constraint on any citizen in virtue of an argument that the
citizen could not accept without abandoning his sense of his equal worth. So, liberalism
as based on equality justifies the traditional liberal principle that government should not
enforce private morality of this sort. But it has an economic as well as a social dimension.
It insists on an economic system in which no citizen has less than an equal share of the
community’s resources just in order that others may have more of what he lacks.
It is far from clear that treating individuals as equals is forbidden for any reason to
deviate from the equality of resources. In the opposite, people with a vibrant sense of fair
value and confidence in their own convictions can nevertheless accept certain grounds for
carrying special burdens for the sake of the community as a whole.
However, many economists believe that reducing economic inequality through
redistribution is damaging to the general economy and, in the long run, self-defeating.
Welfare programs are inflationary, and the tax system necessary to support them
depresses incentive and therefore production. The economy can be restimulated only by
reducing taxes and adopting other programs that will, in the short run, produce high
unemployment and otherwise cause special damage to those already at the bottom of the
economy.
Therefore, if liberals recall the advice of equal concern, they will now establish a
philosophy of this sort by finding out that there are limited reasons for people with self-
respect to treat a group as their own and see the existence as their future in every way. If
government puts people down to the extent they will afford to shape and make a
difference with their own lives, or if it has a promising future in which only second-class
lives are offered to their own children, it is to forfeit the very premise on which its
actions.

CHAPTER X: WHAT JUSTICE ISN’T

A pluralist philosophy of social justice that aims at what is considered 'complex' equity is
suggested in areas of power by Michael Walzer. He opposes the aims of "simple"
egalitarians who seek to ensure that their general condition equals citizens as much as
possible. He finds that they disregard the fact that the norms and general understandings
of society do not treat all goods according to the same delivery concepts. There are two
theories in the philosophy of complex equality. Each kind of resource must be distributed
in accordance with the principle appropriate to its sphere, and success in one sphere must
not spill over to allow domination in another. But if we keep the boundaries of the
spheres intact, then we need no overall comparison of individuals across the spheres.
Walser says that a caste system is just in a society whose traditions accept it, and that it
would be unjust in such a society to distribute goods and other resources equally. But his
remarks about what justice requires in a society whose members disagree about justice
are mysterious. If justice is only a matter of following shared understandings, then how
can the parties be debating about justice when there is no shared understanding? In that
situation no solution can possibly be just, on Walser’s relativistic account, and politics
can be only a selfish struggle. What can it mean even to say that people disagree about
social meanings? The fact of the disagreement shows that there is no shared social
meaning to disagree about.
According to author, Walser does discuss a number of contemporary political issues but
he takes no position of his own about some of the issues he describes, and when he
does express his own opinion, he sometimes provides no argument at all for it. And
when he argues for his own views, by trying to show how these follows from the
general scheme of complex equality, he reveals that he is actually relying on a hidden
and mystical premise that plays no part in his formal statements of that scheme, but
that helps to explain why he thinks that it can give practical advice for people in our
circumstances.
However, the criticism of Walser’s notion of complex equality does not stop here, when
his philosophy is not only helpless but still incoherent at last. It lacks something more
fundamental the collective sense of a tradition than its discreet rituals. For it is part of our
common political life, if anything is, that justice is our critic not our mirror, that any
decision about the distribution of any good wealth, welfare, honours, education,
recognition, office may be reopened, no matter how firm the traditions that are then
challenged, that we may always ask of some settled institutional scheme whether it is fair.
Walser’s relativism is faithless to the single most important social practice we have: the
practice of worrying about what justice really is.
At the end, though political theory cannot play its part except by battling all those
tendencies to our own society and to generality and some contemplation on the grounds
of which of our conventional distinctions and discriminations are authentic and spurious
that contribute to the flourishing of idealisms which we desire. After all, political theory
should play a leading role

CHAPTER XI: CAN A LIBERAL STATE SUPPORT ART?

The author in this chapter started discussion with two words i.e., art and humanities. He
said there have been lot of discussion by opposing two methods of study: the economic
and the lofty approaches to the matter. The economic approach states that a community
should have the character and quality of art that it wishes to buy at the price necessary to
secure it. The lofty approach concentrates on what it is good for people to have. It insists
that art and culture must reach a certain degree of sophistication, richness, and
excellence in order for human nature to flourish, and that the state must provide this
excellence if the people will not or cannot provide it for themselves. The lofty approach
seems a much more promising avenue to pursue if we begin by wanting to find some
justification for a generous level of state support.
There is another well-known qualification to the dictum that the market is a fair test of
what the community wants for what it has to spend. It might support an argument that art
and the humanities are what the economists call “public goods’’ and for that reason must
be supported from the public treasury rather than only from private purses. According to
orthodox economic theory, the best remedy is for the state to calculate what the public
would be willing to spend if necessary, and to spend that sum itself, gathered from taxes
which the public is required by law to pay. Economists have puzzled a great deal not only
about how the state could discover this information but also about the more fundamental
question of what exactly it means to say that he would pay a particular price for
something under circumstances that in fact never arise.
Perhaps art should be regarded as at least a mixed public good, like vaccination, and some
state subsidy justified on that ground. This assumes that when some people buy art and
culture by buying books or visiting fee-charging museums or attending concerts or
studying in universities other people who do not engage in these transactions benefit to a
significant degree. According to author, the sum of the extrinsic benefits of this sort, even
generously defined, would not be high enough to justify any substantial level of public
support for that reason alone. He stated that art and culture have intrinsic benefits for the
public as a whole rest on an assumption that is familiar and sound: that culture is a
seamless web, that high culture and popular culture are not distinct but influence one
another reciprocally.
According to author the economic approach is simply unavailable either way as a test of
whether art should be publicly supported or at what level. The issue of public support lies
beneath or beyond the kinds of tastes, preferences, and values that can sensibly be
deployed in an economic analysis.
The connection between these observations about language and problem about art and the
humanities is obvious. For the structural aspect of artistic culture is nothing more than a
language, a special part of the language. The possibilities of art depend on a shared
vocabulary of tradition and convention. This part of our language could have been much
poorer. The language of culture can grow impoverished in a second way, not by losing
particular dimensions of value, like continuity, but by becoming less innovative, by
ceasing to develop or elaborate new dimensions.
Therefore, art qualifies only on a certain premise that state support is designed to
protect structure rather than to promote any particular content for that structure at any
particular time. So, the ruling star of state subsidy should be to look to the diversity and
innovative quality of the culture as a whole rather than to excellence in particular
occasions of that culture. In general, aid should be given in the form of indiscriminate
subsidies, such as tax exemptions for donations to cultural institutions rather than as
specific subsidies to particular institutions, though not when private donation turns out
to work against rather than for diversity and innovation. When discriminations are
made, they should favour forms of art that are too expensive to be sustained by wholly
private, market transactions. If these include expensive comprehensive collections of
paintings or comprehensive studies that the market would not support, then it can be no
objection that only a relatively few people who are already privileged in various ways
will benefit directly and immediately.
CHAPTER XII: IS WEALTH A VALUE?
In this chapter author reject a political theory about law which is often called the
economic analysis of law. The economic analysis of law argue that common law judges
have on the whole decided hard cases to maximize social wealth, and that they ought to
decide such cases in that way. According to author, Wealth maximization is achieved
when goods and other resources are in the hands of those who value them most, and
someone values a good more only if he is both willing and able to pay more in money to
have it. The goal of wealth maximization is served by a particular transfer or
distribution only when that transfer would increase social wealth measured by what the
person into whose hands the good falls would pay if necessary, to acquire it, and also
by what he would take to part with it. The economic analysis of law, which makes the
concept of wealth maximization central, must therefore be distinguished from the
economists’ analysis of law, that is, from the application to legal contexts of the
economists’ notion of efficiency, which is Pareto efficiency.
But on the other hand, economic analysis holds that social wealth maximization is a
worthy goal so that judicial decisions should try to maximize social wealth, by assigning
rights to those who would purchase them but for transaction costs. But it is unclear why
social wealth is a worthy goal. Author argued if economic analysis argues that lawsuits
should be decided to increase social wealth, defined in the particular way described, then
it must show why a society with more wealth is, for that reason alone, better or better off
than a society with less. It is sometimes argued by utilitarian’s that, since an individual is
necessarily better off if he has more total happiness in his entire life, even though less on
many particular days, so a society must be better off if it has more total happiness
distributed across its members even though many of these members have less.
Author then stated a society with more wealth is better because wealth bears some
important instrumental connection whether as cause, as ingredient, or as false-target to
some independent component of value. He said if economic analysis rejects wealth as a
component of value and argues only that wealth maximization is instrumental toward
some other conceptually independent goal or value, it argues for that instrumental
connection in some strong form, though the author shall not assume that the strong claim
it makes has any particular scope. The strong thesis need not suppose that in every case a
judicial decision that maximizes social wealth will improve the true goal. But it must
show why, if in some cases wealth maximization will not have that desirable effect, it is
nevertheless wise strategy to pursue wealth maximization in all cases within the scope of
the claim. Any strong claim must specify the independent goal or value that it supposes is
advanced instrumentally by maximizing social wealth.

Author said that wealth maximization will encourage respect for individual rights. A
society that sets out to maximize social wealth will require some assignment of rights to
property, labour because wealth is measured by what people are willing to pay, in money
or its equivalent, but no one can pay what he does not own, or borrow if he has nothing
to pledge or if others have nothing to lend. According to the economic analysis of law,
rights should be assigned instrumentally, in such a way that the assignment of rights will
advance wealth maximization. Economic analysis does not suppose that there is some
independent moral argument in favour of giving or withholding that right. So, it cannot be
claimed, in favour of economic analysis, that it points to what is independently, on moral
grounds, the right answer. On the contrary, it claims that the right answer is right only
because the answer increases social wealth.
The theory selected must be a patterned rather than a historical theory, to use Robert
Nozick’s useful distinction. Historical theories argue that a distribution is just, whatever
inequalities or other features it displays, if it is reached in accordance with correct
principles of justice in acquisition and transfer. Patterned theories argue that a distribution
is just only if it conforms to some pattern that can be specified apart from the history of
how that distribution occurred. Wealth maximization specifies a patterned rather than a
historical test for the assignment of rights. It is almost incoherent to propose that a
patterned distribution might be instrumental in achieving a historically contingent
distribution. The defender of wealth must choose some patterned conception of justice,
like highest utility, equality, maximin, meritocracy, or desert.
Finally, the author stated that the instrumental claims for wealth maximization are
more plausible if they are harnessed to one of the nonmeritocratic-patterned theories of
justice, such as utility or maximin, than to anything else. They cannot then be ruled
out conceptually as Posner’s instrumental claims can be.
Therefore, the argument of economic analysis, that judges decide hard cases so as to
maximize social wealth, is not a genetic, chemical, neurological explanation. It is true
that something like an invisible hand explanation of why common law decisions promote
social wealth has been offered but this is not part of the claims of Posner, Calabresi, or
other proponents of economic analysis. Economic analysis has never been presented as a
Freudian analysis. But even if it had, that analysis would presuppose the sense of a
straightforward claim. So economic analysis, seems to rest on the sense and the truth of a
straightforward motivational claim, which is that judges decide cases with the intention
of maximizing social wealth. It follows that the descriptive claims of economic analysis
are radically incomplete. If they are to have descriptive power, they must be recast in
some way appropriate to a weak instrumental claim. They must pick out particular
classes of judicial decisions and explain why it was plausible for judges to suppose that a
rule improving social wealth was likely to advance some independent social goal these
judges valued— utility, maximin, the relief of poverty, the economic power of the
country in foreign affairs, or some other goal.

CHAPTER XIII: WHY EFFICIENCY?

In this chapter author gave reply to Guido Calabresi who challenges the author’s
description of how his theory relates to justice and efficiency. In the book “The Costs of
Accidents” Guido Calabresi argues that justice should be a veto on the pursuit of
efficiency, so that no scheme for reducing the overall costs of accidents should be
accepted if it is really unjust. The theory of author is that social wealth is worth pursuing
for some reason distinct from justice. For unless social wealth is taken to be desirable in
itself, it makes no sense to say that justice must operate as a veto over the pursuit of social
wealth. On the other hand, Calabresi insists that the goals of cost reduction may conflict
with principles of justice, in which case the latter principles have a veto power, he must
be relying on exactly that theory. Calabresi speaks of a trade-off or mix, not between
justice and cost reduction, but between total wealth and its distribution. But it is doubtful
that he has altogether abandoned the mistaken idea latent in the earlier distinction, that
total wealth is of value in itself.
According to author, Calabresi says that he agrees that social wealth is not a component
of value. He might mean by the right mix a recipe rather than a compromise. Or he might
mean a compromise, but a compromise not between an egalitarian pattern of distribution
and wealth as a component of value, but between that pattern and wealth as a surrogate
for something else. Does he mean a recipe? The Maximum utility is the only thing
valuable in itself. The highest possible total utility will be produced by a recipe that
combines something less than the highest total wealth with something less than the most
egalitarian possible pattern; and that is the right mix of wealth and distribution. Author
said that Calabresi must have in their mind a compromise rather than a recipe, but a
compromise between an egalitarian pattern valued for its own sake and social wealth
valued as a surrogate (or as a “false target”) for something else that is valued for its own
sake. The underlying compromise is between total utility and an egalitarian distribution;
this becomes, on the surface, for practical purposes, the compromise between total wealth
and an egalitarian distribution. Calabresi is not a monistic or absolute utilitarian, but he
may be a partial, compromising one.
AN INTERPRETATION OF EQUAL TREATMENT
According to the author, if a fixed sum of identical goods is to be distributed, then
equal principles requires that each must have an equal share of those goods. But in the
crudest societies, different forms of goods fail to be distributed, because different forms
of goods can be produced and because rights and opportunities must be distributed as
well as other forms of property. Sometimes a wealth-inegalitarian distribution is the
product of a political or economic system that patently does not treat people as equals.
Moreover, equality would demand social arrangements that maximize wealth efficiency
without regard to the independent distributional consequences of these arrangements
themselves.

A RECIPE THEORY FOR EQUALITY

Author stated that someone who holds the theory of deep equality does not think that
either total wealth or total utility, on the one hand, or wealth equality, on the other, is
valuable in itself. He does believe that on some occasions genuine equality requires a
move toward wealth equality, and on other occasions a move toward wealth efficiency.
But he does not mean that, when these demands of justice are correctly assessed and
met, something valuable has been sacrificed. So, the story of deep equality is at bottom
very different from the story of a compromise between wealth equality and the highest
possible utility, even though the operational recommendations of the two theories may in
some circumstances be much the same. Even though, that is, they will both pay attention
to both wealth equality and wealth efficiency and call for a “right mix” between them.
A second important difference between the theories is consequent upon the first one. For
the compromise theory the question of justice is a question of balance, and the balance is
both impersonal and intuitive. According to author, Impersonal because individuals
become the instruments of achieving aggregate quantities of equality as much as of
utility. Intuitive because the correct balance must be a matter of inarticulate “feel.” For
the egalitarian theory, on the other hand, the question of justice is a matter of fairness
person-by-person rather than fairness of aggregate sums and one’s judgment about
fairness to persons depends on judging arguments for a particular result, not on striking
intuitive and indeterminate aggregate balances. These are the important theoretical
differences between the compromise and the deep-egalitarian theory which will depend
on the theory of deep equality one holds. The principle that people must be treated as
equals as of different interpretations or conceptions. That principle is only a schema for
different theories of equality different theories about what treating people as equals
requires.
Author then argued that the utilitarian account of equality is certainly more precise
because it holds that people are treated as equals when goods and opportunities are so
distributed as to maximize average utility among them. And if a compromise theory is
conceived as requiring a compromise between equality of welfare and highest total
welfare, then a utilitarian theory of deep equality will plainly yield different results,
because it will deny that it is ever fair to compromise total welfare, over a given group,
for equality of welfare within that group. Thus, individuals are treated as equals when an
equal share of the resources of the community measured abstractly that is, before these
resources are committed to any particular production route is devoted to the life of each.

CHAPTER XIV: BAKKE’S CASE: ARE QUOTAS UNFAIR?

The author in this chapter elaborately discussed about the quotas which was an issue
in the landmark case of The Regents of the University of California v. Allan Bakke.
Author briefly stated important facts of the above-mentioned case i.e., There was a Davis
medical school of the University of California which has an affirmative action program
designed to admit more black and other minority students. It sets sixteen places aside for
which only members of “educationally and economically disadvantaged minorities”
compete. Allan Bakke, white, applied for one of the remaining eighty-four places; he was
rejected but, since his test scores were relatively high, the medical school has conceded
that it could not prove that he would have been rejected if the sixteen places reserved had
been open to him. Bakke sued, arguing that the task force program deprived him of his
constitutional rights. The California Supreme Court agreed, and ordered the medical
school to admit him. The university appealed to the Supreme Court. So, the constitutional
question raised by Bakke is of capital importance for higher education in the United
States, and a large number of universities and schools have urged the Court to reverse the
California decision. They believe that if they are not free to use explicit racial criteria in
their admissions programs, they will be unable to fulfil what they take to be their
responsibilities to the nation.
It is often said that affirmative action programs aim to achieve a racially conscious
society divided into racial and ethnic groups, each entitled as a group to some
proportionable share of resources, careers, or opportunities. It is therefore a
misunderstanding to suppose that affirmative action programs are designed to produce
a balkanized America, divided into racial and ethnic subnations. They use strong
measures because weaker ones will fail; but their ultimate goal is to lessen not to increase
the importance of race in American social and professional life. In the view of the many
important universities which have such programs, however, the gains will very probably
exceed the losses in reducing racial consciousness overall. This view is hardly so
implausible that it is wrong for these universities to seek to acquire the experience that
will allow us to judge whether they are right.
If Allan Bakke has a constitutional right so important that the urgent goals of
affirmative action must yield, then this must be because affirmative action violates
some fundamental principle of political morality. This is not a case in which what
might be called formal or technical law requires a decision one way or the other. It is
said that Bakke has a right to be judged as an “individual,” in deciding whether he is
to be admitted to medical school and thus to the medical profession, and not as a
member of some group that is being judged as a whole.

Allan Bakke was himself refused admission to two other medical schools, not because of
his race but because of his age: these schools thought that a student entering medical
school at the age of thirty-three was likely to make less of a contribution to medical care
over his career than someone entering at the standard age of twenty-one. The Davis
medical school permitted whites to apply for the sixteen places reserved for members of
“educationally or economically disadvantaged minorities,”. In fact, several whites have
applied, though none has been accepted, and the California Court found that the special
committee charged with administering the program had decided, in advance, against
admitting any.
Every citizen has a constitutional right that he not suffers disadvantage, at least in the
competition for any public benefit, because the race or religion or sect or region or other
natural or artificial group to which he belongs is the object of prejudice or contempt.
That is a fundamentally important constitutional right, and it is that right that was
systematically violated for many years by racist exclusions and anti-Semitic quotas.
There is no suggestion in that program that Bakke shares in any collective or individual
guilt for racial injustice in the United States; or that he is any less entitled to concern or
respect than any black student accepted in the program. He has been disappointed, and
he must have the sympathy due that disappointment, just as any other disappointed
applicant. Each is disappointed because places in medical schools are scarce resources
and must be used to provide what the more general society most needs. It is not Bakke’s
fault that racial justice is now a special need but he has no right to prevent the most
effective measures of securing that justice from being used.

CHAPTER XV: WHAT DID BAKKE REALLY DECIDE?

Finally, the author in this chapter discussed about the Bakke’s decision of the United
States Supreme Court. The United States Supreme Court’s decision affirmed the
California Court’s order that Bakke himself be admitted, but reversed that court’s
prohibition against taking race into account in any way.
Bakke’s lawyers raised two questions against the Davis quota plan. Firstly, they argued
that the plan was illegal under the words of the Civil Act of 1964, which provides that no
one shall “on the ground of race be excluded from participation in, be denied the benefits
of, or be subjected to discrimination under any program” receiving federal aid. Secondly,
they argued that the plan was unconstitutional because it denied Bakke the equal
protection guaranteed by the Fourteenth Amendment.
The Supreme Court has now decided, by a vote of five to four, that the Civil Rights Act
does not in and of itself bar affirmative action programs, even those that use explicit
quotas. It has decided, by a vote of five to none, that the Constitution permits affirmative
action plan that allow race to be taken into account, on an individual-by-individual basis,
in order to achieve a reasonably diverse student body. Indeed, it is arguable that the four
Justices who remained silent would have to speak to the constitutional issue even if
another education case, like the Bakke case, were for some reason to come before the
Court. Since Bakke decides that the Civil Rights Act is no more restrictive than the
Constitution, the four Justices might well consider this point foreclosed by that decision
in any future case, in which event they would have to face the constitutional issue they
avoided there. The constitutionality of an affirmative action plan therefore depends on its
purpose as well as its structure. It is not altogether plain how courts are to decide what
the purpose of a racially conscious admissions program is. Perhaps they should not look
behind an official institutional statement that the plan seeks educational diversity, if such
a statement seems plausible.
The four Justices who voted to uphold the Davis program as constitutional would have no
trouble distinguishing these flexible programs that count being Jewish as a handicap or
being white as a beneficial factor. Neither of these programs could be defended as helping
to remedy “the effects of past societal discrimination. The difference between a general
racial classification that causes further disadvantage to those who have suffered from
prejudice, and a classification framed to help them, is morally significant, and cannot be
consistently denied by a constitutional law that does not exclude the use of race
altogether. If the nominal standard for testing racial classifications denies the difference,
the difference will nevertheless reappear when the standard is applied because our sense
of justice will insist on a distinction. If that is so, then the standard, however it is drafted,
is not the same, and will not long be thought to be.

CHAPTER XVI: HOW TO READ THE CIVIL RIGHTS ACT

The author in this chapter proved an even more important challenge to affirmative action
programs than the famous Bakke case. Bakke tested affirmative action programs in
universities and professional schools but Steelworkers v. Weber tested the legality of
programs giving blacks advantages in training programs for industry, programs that
would benefit more blacks directly and might be expected to have an earlier impact on
economic racial inequality. He sued Kaiser, arguing that the program used a racial quota
system and was illegal under the Civil Rights Act of 1964, which provides in Section
703(a) of Title VII that it is unlawful for an employer. Five Justices held that Weber was
wrong by stating that Congress did not intend to outlaw affirmative action plans of this
sort, and that if a court interpreted the statute as Weber wished, the statute’s “purpose”
would be frustrated. The Kaiser training plan set aside a fixed number of places for
blacks, but it could not be said to be unconstitutional because the equal protection clause
of the Constitution requires states to treat people as equals, but imposes no such
requirement on private institutions, unless “state action” is involved in what these private
institutions do. The Court assumed that the voluntary decision of Kaiser did not constitute
state action, and that the case therefore did not present any constitutional issue. The
question raised in Weber, therefore, was only the question whether the Kaiser plan was
made illegal by the Civil Rights Act.
The author said if Congress disapproves a court decision interpreting a congressional
statute, it can always reverse the decision by changing the statute. It cannot reverse a
decision that interprets the Constitution. In the present circumstances, Supreme Court
decision on the statutory legality of affirmative action programs is almost as irreversible
as a decision on their constitutional validity. If it were clear that “discriminate because
of . . . race” was used in the neutral sense, it would have made no sense for the Court to
leave open the question of whether it applied to affirmative action. Therefore, the
majority in Weber was right both as a matter of ordinary language and precedent because
the question of how Title VII should be interpreted cannot be answered simply by staring
at the words Congress used. If Congress did not intend to permit voluntary affirmative
programs, it would have stated in 703(j) that such programs were neither required nor
permitted, but it said only that they were not required.
Moreover, it is an interpretation of one title of the Civil Rights Act only, and does not
speak to any constitutional issue. Nevertheless, the development of constitutional law is
governed more by the latent moral principles that are presupposed by a good
justification of Supreme Court decisions than by the more technical arguments and
limitations set out in the discrete opinions, and this is especially true when these more
technical points do not withstand close analysis.
The Court’s decision in Weber is of great importance, and not only because it permitted
valuable programs developed by private initiative to go forward. The case marks another
step in the Court’s efforts to develop a new conception of what equality requires in the
search for racial justice.

CHAPTER XVII: DO WE HAVE A RIGHT TO PORNOGRAPHY?

The author talks about the substantial censorship of pornography and whether everyone
has the right to do so? The majority of people in the United States and United Kingdom
prefer substantial censorship of “sexually explicit” books, magazines, photographs, and
films, and this majority includes a considerable number of those who are themselves
consumers of whatever pornography is on offer. Author then states that if it is wrong to
censor these forms of pornography, then we must find the justification for that opinion.
There are two different strategies that might justify a permissive attitude. The first is
even if the publication and consumption of pornography is bad for the community as a
whole, the consequences of trying to censor or otherwise suppress pornography would
be even worse. This is called as “goal-based” strategy. Subsequently, the second is even
if pornography makes the community worse off, it is nevertheless wrong to censor or
restrict it because this violates the individual moral or political rights of citizens who
resent the censorship. This is called as “rights based” strategy.
Author posted another question i.e., does the Williams strategy support the
recommendation that live sex shows be prohibited altogether, rather than simply being
restricted in their advertising, or in the location or outside display of the theatre in
which they take place, or in the age of those who may be admitted? The Report says that
live shows are different from films because the former involve the spectator “being in the
same space” as “people actually engaged in sexual activity.” It is “from this relationship
between actual people that arises the peculiar objectionableness that many find is the idea
of the live sex show, and the sense that the kind of voyeurism involved is especially
degrading to both audience and performers. So, the right to moral independence, if it is a
genuine right, requires a permissive legal attitude toward the consumption of
pornography in private, but that a certain concrete conception of that right nevertheless
permits a scheme of restriction rather like the scheme that the Williams Report
recommends. It remains to consider whether that right and that conception can themselves
be justified in political theory.
A TRUMP OVER UTILITY
The question of how the right to moral independence might be defended, both in its
abstract form and in the more concrete conception considering public display of
pornography. Author said “rights are best understood as trumps over some background
justification that states a goal for the community as a whole. If someone has a right to
moral independence, this means that it is for some reason wrong for officials to act in
violation of that right, even if they believe that the community as a whole would be better
off if they did”. The right of moral independence can be defended in a parallel way.
Neutral utilitarianism rejects the idea that some ambitions that people might have for their
own lives should have less command over social resources and opportunities than others,
except as this is the consequence of weighing all preferences on an equal basis in the
same scales.
So, it remains to consider whether the abstract right to moral independence would
nevertheless permit restriction of public display of pornography in a society whose
preferences against that display were backed by the mixed motives. To the extent to
which the motives in question are moral preferences about how others should behave,
and these motives are counted, then the neutrality of utilitarianism is compromised. But
to the extent to which these are the rather different sort of motives which emphasize not
how others should lead their lives, but rather the character of the sexual experience
people wants for themselves, and these motives are disregarded, the neutrality of
utilitarianism is compromised in the other direction, for it becomes unnecessarily
inhospitable to the special and important ambitions of those who then lose control of a
crucial aspect of their own self-development.

CHAPTER XVIII: THE FARBER CASE: REPORTERS AND INFORMERS

In this chapter, author made a detailed discussion on the farber’s case where the Farber
and the Times appealed to the New Jersey Supreme Court, claiming that Judge Arnold’s
order was illegal on two grounds. Firstly, the order violated the New Jersey “Shield
Law,” which provides that in any legal proceeding a journalist has a privilege to refuse
to disclose any “source” or “news or information obtained in the course of pursuing his
professional activity” and secondly the order violated their rights under the First
Amendment to the United States Constitution, which provides for freedom of the press.
Commentators say that the dispute is a conflict between two fundamental political rights,
each of which is protected by the Constitution. Farber and the Times appealed to the right
of free speech and publication; they claimed that this right is violated when the press is
subjected to orders that impede its ability to gather information. The privilege claimed by
Farber has nothing to do with the political right to speak or publish free from censorship
or constraint.
According to author, the public argument over the Farber case failed to notice an
important distinction between two kinds of arguments that are used to justify a legal
rule. Justifications of principle argue that a particular rule is necessary in order to
protect an individual right that some person has against other people, or against the
society or government as a whole. On the other hand, justifications of policy, argue
that a particular rule is desirable because that rule will work in the general interest,
that is, for the benefit of the society as a whole. For example, Government subsidies to
certain farmers may be justified, not on the ground that these farmers have any right to
special treatment, but because it is thought that giving subsidies to them will improve the
economic welfare of the community as a whole.
Author stated that the distinction between principle and policy is relevant to the Farber
case because the arguments Farber and the Times made, in defence of a special
reporter’s privilege to withhold information, were arguments of policy not principle.
However, there are reasons of policy that may justify special rules enhancing the ability
of reporters to investigate. If their confidential sources are protected from disclosure,
more people who fear exposure will talk to them so there is a particular need for
confidentiality. This is the argument of policy that justifies the Shield laws have been
enacted by many states like the New Jersey law, and that justifies a variety of other
special privileges journalists enjoy.
Therefore, it is both safer and more accurate to describe the privilege of confidentiality
the press claims not as part of a constitutional right to freedom of expression or
publication but as a privilege frankly grounded in efficiency.

CHAPTER XIX: IS THE PRESS LOSING THE FIRST AMENDMENT?

In this chapter, author discussed about the Progressive and Snepp cases which shows
that concept of press is nevertheless essential to American constitutional democracy. On
the other hand, he also analyses the Farber and Herbert cases which shows that why the
First Amendment will not give the press all the powers and privileges it wants.
In 1980, in the case of United States v. Snepp, Supreme Court ordered an author to turn
over all his profits to the government without even holding a hearing on the issue. Snepp
argued that the First Amendment made his contractual agreement null and void because it
was a form of censorship. But neither the federal district court nor the Circuit Court of
Appeals, accepted that claim and the district court ordered Snepp, by way of remedy, to
hand over to the government all his profits on the book, earnings for several years of
work but the Circuit Court did reverse the district court on this point. It said that the
government must be content with such actual financial damages as it could prove it
suffered because Snepp had broken his contract, which is the normal remedy in breach of
contract cases. In the end the Court did accept the case but only for the purpose of
reinstating the harsher penalty. The Court did that, contrary to all traditions of judicial
fairness, without offering opportunity for argument to anyone.
Two of the most important recent judicial decisions involving First Amendment claims
that never reached the Supreme Court. The first case was the New York Times reporter
Myron Farber. The New Jersey courts held that Farber could be jailed for contempt
because he refused to turn over his files, which might well have contained information
useful to a defendant accused of murder, to defence attorneys. The second was the case of
the Progressive, but was nevertheless the occasion for the first preliminary injunction
ever granted in the United States against publication in advance. The Progressive
appealed the district court’s injunction to the Circuit Court, but before that Court acted it
became apparent that all the information the author used was available at a public
library maintained by the Commission, and several newspapers then published the
contents of the proposed article without seeking clearance.
Author then raised an important question i.e., What is the First Amendment for?
Whom is it meant to protect? The American constitutional lawyers assumes that the
constitutional rights of free speech including free press which means published speech in
general rather than journalists in particular are directed at protecting the audience. They
protect not the speaker or writer himself but the audience he wishes to address. So,
journalists and other writers are protected from censorship in order that the public at
large may have access to the information it needs to vote and conduct its affairs
intelligently. John Stuart Mill in his famous essay on liberty offered a similar justification
for the right of free speech. He said that “everyone is free to advance any theory of
private or public morality, no matter how absurd or unpopular, truth is more likely to
emerge from the resulting marketplace of ideas, and the community as a whole will be
better off than it would be if unpopular ideas were censored”. So that particular
individuals are allowed to speak in order that the community they address may benefit in
the long run. But other theories of free speech in the broad sense including free press hold
that the right is directed at the protection of the speaker, i.e., that individuals have the
right to speak, not in order that others benefit, but because they would themselves suffer
some unacceptable injury or insult if censored.
So, it is important to decide, when the press claims some special privilege or protection,
whether that claim is based on policy or principle. The importance of the distinction is
sometimes obscured, however, which is that the public has what is called a “right to
know” the information that reporters might collect. But the suggestion that the public has
a right to know suggests something stronger than that, which is that there is an audience-
protective argument of principle in favour of any privilege that improves the press’s
ability to gather news. In such case, the alleged right to know is supposed to be a right,
not of any individual citizen, but of the public as a whole because “the public” in this
context is only another name for the community as a whole.
According to the author, the Supreme Court’s procedures in Frank Snepp’s case was
wrong on the merits, and not simply as a matter of procedure and remedy. The
Constitution defines as well as commands the conditions under which citizens live in a
just society, and it makes central to these conditions that each citizen be able to vote and
participate in politics as the equal of any other. Free speech is essential to equal
participation, but so is the right of each citizen that others not be prevented from
speaking to him. The right to listen is generally parasitic upon the right to speak that
forms the core of the First Amendment, and it is normally adequately protected by an
uncompromising enforcement of that core right to speak.
Therefore, the Supreme Court must find a line to distinguish permissible from
impermissible waivers of the constitutional right to speak. The Court might say either
that no waiver is permissible as a condition of employment in a government agency, or
that no such waiver is permissible unless specifically authorized by Congress. But the
Court did not consider these possible distinctions and assumed that anyone who is
employed by a government agency might waive his First Amendment rights even without
specific congressional authorization. That assumption makes the mistake of supposing
that a constitutional right is simply a piece of personal property. So Snepp should have
been held not to have waived his First Amendment rights. That result is necessary to
protect the rights of others to listen and also necessary to protect Snepp’s own
independence. It depends on supposing that free speech is a matter of principle, and
therefore that it is a matter of great injustice, not just an abstract threat to the
community’s general well-being, when someone who wishes to speak his mind is
muzzled or checked or delayed.
 CRITICAL EVALUATION

After reading this book, I came across with few criticisms. Some of them are: -

 Dworkin argued principle are based on rights; he claims that “particular programs
must be carried out or abandoned because of their impact on particular
people, even if the community as a whole is somehow worse off as a result.”
On the other hand, policy is based on goals; he “try to show that the
community as a whole would be better off if a particular program were
pursued.” He says when there will be conflict between goals and rights, then
“policy must yield to principle.” But then, he didn’t refine this distinction
properly and illustrate its use everywhere in the book.
 Similarly, in the essays on positive and reverse discrimination, Dworkin
argues that no principle based on individual rights can be found to conflict
with the goal of affirmative action. Thus, rather than deciding wholesale for or
against discriminatory measures, we must judge various programs of
affirmative action one by one, by weighing practical costs and benefits. The
distinction is used to similar effect in the essay on nuclear protest, where
Dworkin separates civil disobedience based on policy disagreements from
disobedience based on principle, and suggests that the law should be enforced
leniently against protesters who stand on principle. After all, he doesn’t define
what is mean by “principle”?
 Dworkin first emerged as a critic of two fundamental claims of Hart's: that law in
a country can be identified according to an ultimate rule of recognition implicitly
accepted and applied by officials; and that, in situations in which existing legal
criteria do not resolve a case, judges have a legislative-like discretion to make new
law. Dworkin's response was that judges are always trying to discover the law, not
make it, and that what is law must be understood in terms of the set of principles
that would best justify existing legal materials. Here Dworkin totally disregard the
judge made laws.
 Dworkin's basic account of interpretation as integrity was also criticised heavily.
He rejects the alternative of pragmatism and proposes that it can never be legally
correct for a judge to promote desirable future consequences at the expense of the
decision indicated by integrity. There are two serious weaknesses in Dworkin's
defence of this position. The first being for example, many people assume that the
best possible personal morality includes deontological and consequentialist
elements which interrelate in ways not precisely definable; Dworkin really does
not come to terms with the possibility of a similarly pluralist account of legal
interpretation. The second weakness is the failure to integrate what is said with an
important component of an appellate judge's role in the United States, the search
for majority opinions. Dworkin's general position about conscious deviations from
the result required by law as integrity is that such deviations are unambiguously
contrary to law.
 In one of his essays, he says that there is always a right answer in hard cases even
though the correctness of the right answer cannot always be made absolutely clear.
In attempting to answer this question, Dworkin points to the fact that attorneys
invariably frame their arguments as assertions that their clients have the right to a
favourable decision, rather than arguing that the judge should merely exercise his
or her discretion in favour of their clients. So, it was criticised on the ground that it
places a stronger duty on judges to decide cases and explain their decisions in light
of an intellectually honest and rigorous analysis. It does not allow judges to
assume that their own preferences may properly come into play. Moreover,
Dworkin's position allows us to criticize judicial decisions in hard cases not
merely upon the grounds that they are unwise as a matter of policy, but also upon
the grounds that they are wrong. So, under Dworkin's philosophy, hard cases have
right answers and those answers are to be found in principles, not policies.