Encuadre I: Visibilidad

One could therefore say that, for Dworkin, any efficient (genuine) system of law embodies a unified moral philosophy. This philoso-phy, however, will vary from legal system to legal system, even if it will not vary within one and the same legal system. But this raises an

interesting question. Can we say that the American legal system that existed after Brown was the same legal system that existed before it?

If every new interpretation of a system’s underlying philosophy produces a ripple effect that reverberates throughout the entire system, could we not say that the system itself has changed – perhaps to the point of no longer being the same system?

We shall explore this possibility in the next chapter, when we examine Bruce Ackerman’s theory of revolutionary constitutional reinterpretation. One consequence of adopting this point of view is that legal change would not necessarily be as stable and predictable as Dworkin thinks it is. Dworkin believes that Plessy was wrong at the time it was decided, and that its subsequent demise almost sixty years later could have been predicted. According to him, the princi-ple of equal treatment embodied in the Fourteenth Amendment already implied that laws intended for purposes of stigmatizing certain classes of citizens were unjust – as Justice Harlan’s ringing dissent in Plessy makes abundantly clear.

Be that as it may, Harlan’s interpretation of equality (‘Our Constitution is color-blind’) is not the only correct – or, if we are to believe Dworkin, even the most correct – interpretation of the Fourteenth Amendment’s principle of equality. Furthermore, the difference between colour-blind and colour-sensitive conceptions of equality suggests that any talk of their implicit unity (or continuity) seems at best problematic. Perhaps Dworkin thinks that colour-sensitive affirmative action laws can be used as secondary routes to achieving colour-blind equality (assuming that is the best interpre-tation of the ideal of equality the US Constitution is working to embody). But is colour-blind equality – as distinct from multicul-tural, colour-sensitive equality – the US constitutional ideal? And more to the point, how could generations of intelligent white jurists have failed to perceive that equality was incompatible with racist institutions? Could it be that the American constitutional tradition exhibits less unity and integrity than Dworkin thinks it does? Could it be that Plessy was decided correctly – relative to the dominant jurisprudential philosophy of equality at that time?

Dworkin presumes that a genuine legal system has a unified and historically consistent philosophy of law. The above discussion suggests that there might be reason to doubt this. As we shall see in the conclusion, such internal scepticism about the moral integrity of law is partly generated by the existence of deep social conflicts that

seem to have their basis outside of law proper, in the economic, polit-ical, and cultural systems of society. These systems are integral to the meaning of law in the same way that morality and all the other ethical ideals underlying ‘spiritual’ life are; they form the broader practical context, or totality of meaningfulness that shapes our philosophical and moral speculations. The ‘dialogue’ – or to use a Hegelian expression, dialectic – between these distinct and opposed meanings is itself composed of many other dialogues, pitting different economic, political, and cultural groups against one another – each vying for the ‘right’ to impose its own philosophy on the system of law.

Moral conflicts such as these led Karl Marx to reject the Hegelian idealism of his time as the mere attempt to ‘rationalize’ away con-tradictions in the legal system – to create an abstract idea of legal unity that had nothing to do with social reality. Marx argued that Hegel’s ‘idealism of the state’ was wishful thinking: a necessary reac-tion, perhaps, to the divisive ‘materialism of civil society’, but nonetheless false. Hegel might have been right that clashes between particular groups vying for economic and political power over one another – the lifeblood of civil society – threaten to disintegrate into anarchy unless people can be persuaded to unite around common ideals that supposedly represent common interests. But, Marx insists, these interests have no basis in the real world of capitalism, so the ideals that reflect them – such as the rule of law – are really just ideologies that mainly advance the particular interests of the most powerful classes (Marx 1994: 19).

Could Dworkin be guilty of succumbing to this same ideological temptation? The presumption of unity promotes a charitable approach to interpreting the law that encourages us to ‘find’ (and create) unity within it. But if the underlying structure of interpret-ation is dialogical – a dialogue between interpreters and not just a monologue – then disunity must also be present within law; for without disagreement between interpretative viewpoints, dialogue (the attempt to reach agreement) is pointless. Indeed, the more one adopts the external perspective of a sociologist interpreting law through the lens of economics, politics, and culture, the more conflict-laden law appears. In that case it might be better to forgo the principle of charity in favour of a more critical, ‘deconstructive’

approach to interpreting the law of the sort we will examine in the conclusion.

2.4 SUMMARY: POSITIVISM, NATURAL LAW, AND DEMOCRACY Our examination of the debate between legal positivists and natural law theorists shows that it is complicated by three questions. The first question – What is law? – is best answered by the positivist. Hart does not offer a definition of law, but he does offer a sociological description about how we recognize law. Some laws are clearly immoral, but we recognize them as laws nonetheless. The second question – does morality enter into the interpretation of law? – is best answered by neither the positivist nor the natural law theorist.

In the vast majority of cases judges apply the law without having to interpret it. However, in addressing unprecedented cases interpreta-tion is required. Here Hart concedes that judges may have to use per-sonal moral discretion in choosing among equally compatible interpretations. Indeed, he eventually agreed with Dworkin that morality is sometimes necessary for identifying the law. ‘Soft pos-itivism’, he observed, ‘permits the identification of law to depend upon controversial matters of conformity with moral or other value judgments’ (Hart 1991: 251). Hart has in mind laws, such as the Fourteenth Amendment to the US Constitution, that contain unspecified moral expressions. As I noted above, the Amendment’s reference to ‘equal protection’ contains a moral idea – fairness of treatment, which cannot be understood and identified without engaging moral judgements.

The third question – what distinguishes legal obligation from obe-dience based on fear? – calls for a natural law response. Hart’s failure to distinguish legal obligations from commands backed by threats suggests that morality does inhere in law, if only indirectly. If we have a prima facie legal obligation to obey unjust laws, as positivists claim we have, this is because they are part of a larger legal system that embodies morality. One way the legal system embodies morality is by adhering to the rule of law. Although there is some disagreement about what the rule of law entails, we may say this much about it:

it provides a system of stable rules that enable persons to plan their lives. Even if the main reason for upholding the rule of law is instru-mental – because it makes possible efficient and stable social inter-action – a secondary reason for doing so must surely be its ‘moral respect’ for the autonomy of legal subjects.

The rule of law – minimally construed – does not, however, explain our prima facie obligation to obey very unjust laws, such as

the Nuremberg Laws that forbade sexual relations between ‘Jews’

and ‘Aryans’. Even if the legal system of the Third Reich had embodied the rule of law, it would not have embodied other moral ideas that we associate with a system of justice, and so would not have possessed the ‘inner morality’ requisite for justifying our oblig-ation to obey these laws.

One such moral idea pertains to the source of law: democracy.

Positivists think that whether a rule of recognition places law-making power in a democratic legislature or a single dictator is irrelevant to the question of legal obligation. But this is surely mis-taken. If the Nuremberg Laws had been the outcome of fair demo-cratic procedures, then it would seem that the prima facie obligation to obey them would have been stronger. One is here reminded of US Supreme Court Justice Joseph Story’s decision to enforce the Fugitive Slave Act of 1793 (revised in 1850), which, in keeping with Article IV, Section 2.3 of the US Constitution, required ‘person[s]

held to Service or Labor in one State . . . under the laws thereof, escaping into another’ to be ‘delivered up on Claim of the Party to whom such Service and Labor may be due’. Story, who opposed slavery, believed that the law was deeply unjust – and we today would probably think it more unjust than the Nuremberg Law forbidding miscegenation – but he upheld the Fugitive Slave Act on the grounds that he had a prior obligation to uphold the Constitution.¹

This reasoning sounds like it could have come from a legal pos-itivist. Story clearly distinguishes his moral obligation from his legal obligation. But notice that the law on which he bases his legal obliga-tion ostensibly descends from a moral source: the will of The People.

The US Constitution, like most constitutions, is a document that places the power to make laws in a democratically elected legislature.

Democracy possesses a moral core that other legislative systems lack:

it respects the equal freedom of citizens to participate in the political processes that give shape to the law. Unlike the rule of law, which respects the personal autonomy of private subjects to plan their lives according to law, democracy respects the public autonomy of citizens to give themselves the law. Freedom through self-legislation protects against the arbitrary power of rulers – and thus functions to protect the rule of law; and it upholds the value of determination, or self-governance, as the supreme expression of moral responsibility.

Our prima facie legal obligation to obey the law is stronger under a democratic regime because democracy respects the equal dignity

of citizens to determine their fate collectively. The principle of one person, one vote exemplifies this egalitarian spirit, as does the prin-ciple of majority rule. These prinprin-ciples express the moral value of equality, but they do not rule out arbitrary forms of power.

Democratic majorities can behave tyrannically, and this has led many to conclude that democracy does not protect the rule of law, as its defenders claim it does. Nonetheless, it does seem that our prima facie obligation to obey the law is stronger under a democra-tic regime, at least to the extent that every citizen has been given an equal opportunity to influence the outcome of the legislative process. Stated differently, because we think that the rules of the democratic game are fair, we accept the outcome as fair as well, even if we find it morally reprehensible.

In the next chapter we will see that the most important rules for guaranteeing the fairness of the democratic process are those provided by constitutional law. Indeed, constitutional law enjoys this privileged authority – outweighing the statutory laws enacted by democratically elected legislatures – because of its impartiality.

Constitutional law solidifies our prima facie obligation to let the majority speak for us by formally endowing the most humble citizen with basic rights that cannot be infringed by the majority. That is why it is rightly regarded as the moral core of law. Equally import-ant, it establishes procedures of judicial review that protect our rights against overreaching laws. These procedures, in turn, find their philosophical justification in the separation of political powers – embodied in legislative and executive branches – from non-political powers, embodied in an impartial judiciary. The question we must now examine is whether – and if so, how – this separation of powers guarantees a rule of law that enables each and everyone to see the democratic acts of the majority as an expression of ‘we the people’.

CONSTITUTIONAL LAW: STRUCTURE,