Review: [untitled]

Author(s): Arval A. Morris

Reviewed work(s):
A Matter of Principle by Ronald Dworkin
Source: Ethics, Vol. 97, No. 2 (Jan., 1987), pp. 481-483
Published by: The University of Chicago Press
Stable URL: http://www.jstor.org/stable/2381367
Accessed: 28/01/2009 14:25

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 Book Reviews 481

are given firmer grounding, there is no compelling reason for us to accept such
a system of rights in the face of the likely disastrous consequences of free, real-
world market interactions (e.g., that the untalented, infirm, or unlucky will be
left irreparably impoverished). Buchanan makes the additional claim that assuming
a moral duty of benevolence (not based on the beneficiaries' rights to aid and
thus not enforceable by the state) is insufficient to avoid these consequences
because of collective action and coordination problems. (This last argument is,
I think, quite convincing and well stated.)
But it seems to me that Nozick does have at least an attempted justification
of property acquisition, though it is not based on the familiar labor-mixing model
of Locke. For Nozick, acts are permitted (and cannot be prohibited on the grounds
of justice) as long as those acts do not violate the Lockean rights of any others.
First acquisition of property, then, is permitted as long as such actions do not
violate rights conceived as absolute side constraints, no matter what kinds of
action constitute an aquisition. The rights in question that must be respected are
the rights of others to also appropriate similar (though not the same) goods. The
limitations that these rights place on potential property owners are expressed by
the version of the Lockean proviso that Nozick adopts. The root idea behind the
use of the proviso is, I think, this: as long as no one in the state of nature can
complain of being worse off than he or she would have been if no system of
property existed (if no appropriations were made), then anyone's appropriation
of property does not "harm" anyone else in the appropriate way-in the way
that would make the act unjust. So the act of appropriation is itself just, as are
all similar acts, and a free market system based on property rights so gained is
also just, no matter what the consequences for the unlucky and infirm. Now
whether or not this is a correct appraisal of Nozick's views, it is at least an
argument suggested by what is said in Anarchy, State, and Utopia and a view that
must be addressed if one wants to conclude, as Buchanan does, that the rights
that are at the basis of the liberation justification of the market are "without
foundations" (p. 66).
I do think that the argument just cited does indeed fail and in ways that
other things Buchanan says suggest. I bring it out here not only to illustrate a
possible lacuna in Buchanan's treatment of these issues but also as an example
of the many ways that his discussion stimulates further thought on these crucial
matters. Overall the book is a useful compilation of arguments from two disparate
disciplines (economics and philosophy), and the apparent lack of depth in the
approach is adequately compensated for by the comprehensiveness, clarity, and
cogency of Buchanan's presentation of the arguments.

JOHN CHRISTMAN
Viriginia PolytechnicInstitute

Dworkin, Ronald. A Matter of Principle.

Cambridge, Mass.: Harvard University Press,- 1985. Pp. 1+425. $25.00 (cloth).

Taking Rights Seriously, Dworkin's first book of collected essays, was acclaimed as
the most significant and sophisticated contribution yet made to the philosophy
of law by an American. Dworkin extends and applies his theories in this new
volume of nineteen collected essays, one of which is newly written; two are
482 Ethics January 1987
previously unpublished lectures, and sixteen have already appeared. A Matterof
Principleis about "fundamental theoretical issues of political philosophy and
jurisprudence: about what liberalism is and why we still need it; whether we
should be skeptical about law and morality; how collective prosperity should be
defined; what interpretation is and how far law is a matter of interpretation
rather than invention." Above all, this is "a book about the interplay between
. . . two levels of our political consciousness: practical problems and philosophical
theory, matters of urgency and matters of principle" (p. 1).
Dworkin analyzes the relationships between law and politics, law and economics,
law and literary criticism, liberalism and justice and focuses on law as an interpretive
enterprise, freedom of the press, affirmative action, equality, and civil disobedience
and nuclear protest. In his introduction he seeks to link the essays together.
Their substance is informed by his view that legal analysis is fundamentally an
interpretive enterprise requiring coherence and by the liberal theory of justice
which, for Dworkin, is independent of any theory of virtue or excellence and,
ultimately, requires that government observe the principle that each person, qua
person, is entitled to equal respect and concern.
Dworkin's writing is engaging and full of distinctions, one of the most basic
for him being that between principle and policy. "Arguments of policy try to
show that the community would be better off, on the whole, if a particular
program were pursued; they are . .. goal-based arguments" (p. 2). On the other
hand, rights-based "arguments of principle claim ... that particular programs
must be carried out or abandoned because of their impact on particular people,
even if the community as a whole is in some way worse off in consequence" (pp.
2-3).Judging, Dworkin claims, should always be a matter of principle, not policy.
Regretfully-because it needs defending-he is not concerned to defend his
principle/policy distinction here, seeking instead to show only its practical value
in various contexts, e.g., that civil disobedience arguments must be differently
constructed. But, in some cases of the law, e.g., the right to freedom of speech,
where policy claims about truth emerging in the marketplace's competition of
ideas are historically so intimately a part of the First Amendment that many
scholars take these policy claims to be part of the structure of the right, judges
ought to enforce and extend policy even though, technically, it may not be
"principle."
Dworkin perceptively argues that legal analysis is fundamentally interpretive
and offers a general account of principled legal interpretation. He claims that
in a hard case where legal rules do not provide definitive guidance, definitive
guidance is provided by principles such that for each judge in every hard case
there is one right answer (which need not be the same answer for all judges).
Each judge reaches his right answer by first assembling the settled law in his
jurisdiction. All of thejurisdiction's complete institutional history that is persuasive-
current constitutionss, statutes, ordinances, precedents, administrative rulings,
etc.-is assembled into a coherent theoretical structure. This is done by identifying
and arranging the law's underlying authoritative principles into the soundest
theory of law that best explains and justifies the settled law, including its mistakes.
The best arrangement of the principles is the one that "coheres" or "fits" best,
and if there are any gaps, or if two "fits" are equally good, then the judge must
resolve the issue by turning to the best understanding of political morality. That
best understanding, he argues, is liberalism.
Dworkin's arguments show that doctrinal law cannot properly be developed
without a philosophy of law and a background theory of political morality. Con-
 Book Reviews 483
sciously or not, all judges, ultimately, are moral philosophers, and a litigant has
a right to a judge's single best answer. Once legal analysis is seen this way, i.e.,
as being fundamentally interpretive, then the ways in which "interpretive arguments
may be said to admit of right answers are sufficiently special, and complex, to
call into question the familiar arguments for skepticism." Indeed, once legal
analysis is viewed as interpretation, then, Dworkin claims, "there is little point
in either asserting or denying an 'objective' truth for legal claims" (p. 4).
At no point in this book, or in TakingRights Seriously,does Dworkin undertake
to explain fully and precisely what he means by "fit" or "coherence." He clearly
means something weaker than implication and something stronger than a mere
loose consistency. The concept is crucially important to his theory. Dworkin must
know that he needs to clarify and determine this elastic concept (and defend his
principle/policy distinction). He may do that soon for he tells us in the introduction
that he is now writing a new book about legal theory.

ARVAL A. MORRIS
Universityof Washington

Lefcourt, Carol H., ed. Women and the Law.

New York: Clark Boardman Co., 1984. Pp. xlii+467. $75.00 (ring binder).

After nearly two decades of struggle by the second wave of the feminist movement,
few people still believe that legal change alone will be sufficient to achieve gender
equality. Nevertheless, the significance and impact of legal change should not
be underestimated. Women and the Law, edited by Carol H. Lefcourt, a distinguished
attorney in the field of women's rights law, deals with three major areas in which
historic legal advances have been made recently on behalf of women and which
are not dealt with adequately in legal texts: employment rights, reproductive
rights, and familial rights. This book is an excellent resource for anyone, legal
practitioner or theorist, who is concerned with the power of law to secure women's
rights.
Lefcourt herself wrote the introductory overview and the powerful chapter
on "Child Support." In addition, there is "Comparable Worth" by Virginia Dean,
"Sexual Harassment" byJoan Vermuelen, "Equitable Distribution and the Home-
maker" by Judith I. Avner, "Child Custody" by Joanne Schulman and Nancy D.
Polikoff, "Prenuptial and Marital Agreements" by Ruth Cohen and Ann M.
Garfinkle, "Artificial Insemination" by Rosalie G. Davies, "Battered Women" by
Lynn Nakamoto and Laurie Woods, "Liability for Rape" by Maja Hanks and
Laurie Beth Zimet, "Birth Trauma" by Sheila M. Johnson, and "Regulation of
Infant Formula Marketing" by Barbara E. Swartz.
The targeted audience for Lefcourt's book consists of members of the legal
profession; her declared goal is to provide them with the analysis and practical
guidance needed to achieve "legal and social breakthroughs" in the struggle to
eradicate sex discrimination from the practice of law. Each chapter gives an
overview of the current state of law in its selected area, analyzing its relationship
to women's rights and suggesting legal arguments by which those rights may be
furthered. In addition, there is an abundance of citations to pertinent cases;
references to relevant law review articles; sources of background information
useful for the preparation of cases; samples of complaint forms and other legal
documents; names and addresses of organizations from which further legal in-