The Mandate of Dignity: Ronald Dworkin, Revolutionary Constitutionalism, and the Claims of Justice 0823268101, 9780823268108

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T HE M A N D AT E O F DI G N I T Y

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ju s t

i d e a s

transformative ideals of justice in ethical and political thought

series editors Drucilla Cornell Roger Berkowitz

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THE MANDATE OF DIGNITY RONALD DWORKIN, REVOLUTIONARY CONSTITUTIONALISM, AND THE CLAIMS OF JUSTICE

Drucilla Cornell and Nick Friedman

fordham university press new york

2016

Copyright © 2016 Fordham University Press All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means—electronic, mechanical, photocopy, recording, or any other—except for brief quotations in printed reviews, without the prior permission of the publisher. Fordham University Press has no responsibility for the persistence or accuracy of URLs for external or third-party Internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. Fordham University Press also publishes its books in a variety of electronic formats. Some content that appears in print may not be available in electronic books. Visit us online at www.fordhampress.com. Library of Congress Cataloging-in-Publication Data Cornell, Drucilla, author. The mandate of dignity : Ronald Dworkin, revolutionary constitutionalism, and the claims of justice / Drucilla Cornell and Nick Friedman. — First edition. pages cm. — (Just ideas) Includes bibliographical references and index. isbn 978-0-8232-6810-8 (cloth : alk. paper) — isbn 978-0-8232-6811-5 (pbk. : alk. paper) 1. Dworkin, Ronald. 2. Dignity. 3. Constitutional law— South Africa. 4. Social justice—South Africa. I. Friedman, Nick, 1984– author. II. Title. k230.d92c67 2016 342.001—dc23 2015007424 Printed in the United States of America 18 17 16

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First edition

to the memory of Ronald Dworkin

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Contents Preface Introduction

ix 1

Integrity to the Past

14

The Hegelian Conception of a Properly Constituted Community

29

3

Law’s Empire in South Africa

42

4

The Quest for Unity of Value

62

5

Integrity to Dignity

79

6

Dignity and Responsibility in South African Law

106

Conclusion

112

Notes

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Index

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Preface When Ronald Dworkin passed away in February 2013, those of us who are committed to a more just world, and to the great aspirational ideals that represent the very best of liberalism, lost one of our most ardent, insightful, and determined warriors. We dedicate this book to him to celebrate his life and mark the impact of this loss, as well as to explain the significance of his work for current debates about the Constitution of South Africa. The book was prompted at least in part by our specific history of engagement with Dworkin. For more than twenty years, Drucilla Cornell had the privilege of attending the seminar in jurisprudence and political philosophy at the New York University School of Law, convened by Ronald Dworkin and Thomas Nagel. More recently, prior to the publication of Justice for Hedgehogs (the manuscript of which Dworkin kindly shared with us), the authors began to review the arc of his work and to think about what contributions it could make to the development of South Africa’s still nascent constitutional jurisprudence. Some of that thinking appears in an article of the 2010 Malawi Law Journal, on which some of the chapters of this book are based. It was Dworkin himself who encouraged us to pursue the book, generously commenting on various drafts as we proceeded. We are in his debt for the time and energy he gave us in critical commentary. We want to thank our two reviewers, Morris Kaplan and David Richards, both of whom made themselves known to us, for their thought-provoking, critical comments on the manuscript. Their insights and criticisms led again to considerable redrafting of the book. As always, the two authors want to thank the women in their lives: Nick’s mother, Rita, and Drucilla’s daughter, Serena, for their understanding and devotion. Their support keeps us going. xi

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Thanks also go to Russell Perkins, who was an endless source of support in the final stages of the book’s production. Portions of Chapter 2 were previously published as “Institutionalization of Meaning, Recollective Imagination, and the Potential for Transformative Legal Interpretation,” University of Pennsylvania Law Review 133, no. 2 (1988) and appear here in modified form. Some of the ideas expressed in this book were explored previously in “Toward a Modern/Postmodern Reconstruction of Ethics,” Pennsylvania Law Review 133, no. 2 (1985), and “The Significance of Dworkin’s Non-Positivist Jurisprudence for Law in the Post-Colony,” Malawi Law Journal 4, no. 1 (2010). This project was one of the last to reach the desk of Helen Tartar, the extraordinary editor of Fordham University Press, who tragically died in a car accident in March 2014. Her loss to the intellectual community goes far beyond her role at Fordham. Generations of young scholars have been inspired to undertake the arduous task of writing as a result of her encouragement. This book, of which she was always supportive, appears in a series—“Just Ideas,” edited by Drucilla Cornell and Roger Berkowitz—that Helen helped to initiate and enthusiastically supported. We mourn her loss. At the same time, we are deeply grateful to Thomas Lay, who took over from Helen and patiently saw this book to its conclusion. All mistakes, of course, are our own. Drucilla Cornell and Nick Friedman New York, November 2014

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T HE M A N D AT E O F DI G N I T Y

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Introduction

We live in a world in which the revolutionary overthrow of governments is part of our day-to-day lives. The question of whether and how it is possible for these uprisings to result in stable constitutional government, at once subject to the rule of law and capable of delivering the radical social change they promise, has never been more pressing. Once a government has been overthrown, how does one replace it, and what should be its shape? One of the big questions that have haunted the twentieth-century history of revolution is whether the process of constituting a revolutionary government should ultimately yield a constitution. If so, what kind of constitution must it be, and how can that constitution keep alive the revolutionary power of the people who put it in place? Precisely these questions of revolution and constitutionalism were on the agenda in South Africa in 1990, the year in which the African National Congress (ANC) was unbanned and entered into negotiations with the regime of the day to bring an end to apartheid. South Africa is sometimes described as having undergone a “peaceful transition” from an oppressive regime to 1

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Introduction

democratic, constitutional governance, but anyone who is familiar with either South Africa’s past or its present will understand the inaccuracy of that characterization. While it was indeed the case that South Africa’s first general elections in 1994 were mostly (though not entirely) free of political violence, those elections were preceded by decades of sustained, intensely violent and indeed revolutionary armed struggle. Furthermore, while South Africa today continues to hold elections which are universally recognized as free and fair, and while the government continues to abide by the country’s much lauded Constitution, the twenty years that have passed since the new government came to power have not been free of controversy. Corruption is endemic and goes largely unpunished, while service delivery to millions of poor South Africans remains unacceptably ineffective. In recent years, the government has made gestures toward curtailing the freedom of the press and the independence of the judiciary. Now, in the wake of the internationally condemned massacre of striking mineworkers by police at Marikana in 2012, the government is increasingly seen as being at war with its own people. Perhaps most worryingly, the integrity of the Constitution itself has come under attack, as part of a smokescreen deployed by the government and various interest groups who seek to cast the Constitution as an obstacle to, rather than a condition of, the redistribution of wealth, which the country so desperately needs. Of course, those who oppose redistribution like to blame the Constitution too. And so it is that even in South Africa, which has generally been held up by the international community as a poster child of transitional justice, the very possibility of establishing a revolutionary, constitutional government remains a live question. Importantly, as Emeritus Justice Albie Sachs has argued, the ANC has been committed to constitutionalism since its inception. This commitment is evinced not only by its attempt to legalize a moral code of conduct for the armed struggle itself, but also by its adoption of a Freedom Charter in 1955, which laid a foundation for much of what exists today in the form of the South African Constitution. Thus, the questions of revolutionary government in South Africa were answered by a rejection of a dictatorship of the proletariat (and with it, the idea of one-party rule through the institutionalization of control over the economy through the executive power of the Communist Party), in favor of a dispensation based on a multiparty system of constitutional democracy. Of course, South Africa is not alone in its rejection of some of the central

Introduction

3

ideas of the Third International. Indeed, many African national and socialist revolutions developed other ideas of how socialism might become a reality through rich engagements with the philosophical heritage of African humanism. For our purposes here, we want to stress that South Africa remains unique in having undergone what should be understood as a substantive revolution, a phrase originally coined by Hans Kelsen. This type of revolution is not one that simply erases all law on the books, fires or imprisons current bureaucrats, and begins a completely new day. Instead, a substantive revolution is characterized by the reigning government—through its own laws (the existence of which survives the regime change)—removing itself from power either into a situation of negotiations (as was the case in South Africa) or conceding to the right of other parties to form a new government. A further aspect of a substantive revolution is that the new government itself will represent a complete ethical transformation of all the social relations of the previous dispensation. The substance of such a revolution is therefore inherently ethical. In the case of South Africa this ethical transformation is embodied in the preamble of the Constitution. As it was stated by Mahomed DP in S v. Makwanyane: In some countries, the Constitution only formalizes, in a legal instrument, a historical consensus of values and aspirations evolved incrementally from a stable and unbroken past to accommodate the needs of the future. The South African Constitution is different: it retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular, and repressive and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos, expressly articulated in the Constitution. The contrast between the past which it repudiates and the future to which it seeks to commit the nation is stark and dramatic.

The Constitution therefore posits that the new dispensation had to move away from the horrors of apartheid toward not just a new legal order, but a new social order based on dignity, equality, and freedom. It is this ideal which embodies both the fragility and the importance of this effort, in that the struggle to transform a society—and to expropriate a certain amount of property to the black majority—must be done within the framework of the Constitution, which embodies the ideals of ethical transformation.

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Introduction

In that sense, the substantive revolution in South Africa is one in which constituting a revolutionary government must also involve a commitment to constitutionalism. This has been and will remain a controversial project for that reason. Let us be clear that a substantive revolution does not involve any one way in which power can be transformed away from a colonial government. It does not need to have involved the kind of negotiations for which the ANC opted in the Convention for a Democratic South Africa (CODESA). It could easily, for example, have followed the program of Chris Hani, which called for a referendum of the National Party that would give the black majority the vote, and that would allow the black majority to elect a constitutional assembly directly. Hani’s argument was that this would have made it possible for the black majority to take power into their own hands as people’s power, and to avoid the economic compromises that were undoubtedly made behind the scenes during the political negotiations over the Interim Constitution (IC). We underscore this point because a substantive revolution, although it can take many forms, differs from what Hans Kelsen calls a procedural revolution, in that it moves within a democratic or lawful process, rather than through the total seizure of state power through the victory of the armed struggle. We all have visions of what a full procedural revolution is—it is, for example, Fidel Castro and Che Guevara marching victorious into the streets of Havana and disbanding the government of the day. In procedural revolutions, the day after tomorrow leaves nothing in place of the old order. To have this kind of procedural revolution it must of course be possible to actually win the revolutionary armed struggle. In South Africa, however, it became clear, not only to the ANC but to many other liberation movements throughout the world, that a victory of this kind was becoming an increasingly remote possibility, as both the Soviet Union and China refused to continue to arm struggles in South America and Africa. Without the arms to defeat the ruling class, such armed struggles turn into a perpetual war zone (such as in Palestine) rather than one that can lead to the constituting of a substantive revolution. If the war cannot be won, and in South Africa it could not have been, then we must either embrace a substantive revolution or settle for the possibility of a worse outcome. We want to make two points here. The first is that the ability to have a full procedural revolution in Kelsen’s sense has become more and more difficult in today’s world, and therefore successful revolutions are likely to take place

Introduction

5

more along the lines of continual struggle and transformation, rather than as one glorious event in which the government and the state is seized. The second is that there are profoundly important reasons to support constitutionalism as crucial to the constituting of a revolutionary government. Of course, there are many forms of constitutionalism, and we are well aware that a constitution that seeks to actualize decolonization would have to be substantially different to any Euro-modern model. To some degree, the thinking of how constitutionalism must be creolized—to use the telling phrase developed by the Caribbean Philosophical Association—is beyond the scope of this book. But the defense of what we call “big picture” constitutionalism, as part and parcel of a revolutionary government, is at the heart of the book’s project. The debate about constitutionalism and the protection of democratic rights goes back to the one between Rosa Luxemburg and Vladimir Lenin after the seizure of state power by the Bolsheviks in 1917, when the soldiers joined with the workers and the Winter Palace was stormed and held. No one quite expected that moment to happen, including Lenin himself; but as Luxemburg always emphasizes, the masses of people are always way ahead of the intellectuals in any revolutionary party. Once power is seized, however, the job of the party is to consolidate that power. For Luxemburg, that consolidation has to be as democratic as possible. Luxemburg famously argued that what we today know about socialism is merely a series of negative decrees that—while taken to set the basis for a socialist economy and more importantly a socialist society—could never be enough on their own to bring about true democracy and a total transformation of economic and social relations. To quote Luxemburg: [W]e know more or less what we must eliminate at the outset in order to free the road for a socialist economy. But when it comes to the nature of the thousand concrete, practical measures, large and small, necessary to introduce socialist principles into economy, law, and all social relationships, there is no key in any socialist party program or textbook. . . . [I]f such is the case, then it is clear that socialism by its very nature cannot be decreed or introduced by ukase [a proclamation of the Czar having the force of law in imperial Russia]. . . . Only experience is capable of correcting and opening new ways. . . . The public life of countries with limited freedom is so poverty-stricken, so miserable, so rigid, so unfruitful, precisely because, through the exclusion of democracy, it cuts of the living sources of all spiritual riches and progress.

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Introduction

Luxemburg hailed the Russian revolution as giving honor back to the democratic socialist movement that had capitulated to the imperialist horrors of World War I. Her fundamental criticism of Lenin, however, was that he sought to make necessity into a virtue. Lenin was of course up against a vicious attack from all the forces of the capitalist world, and was also faced with the prospect of massive starvation within the borders of the new Soviet Union. Luxemburg, for her part, was well aware that measures had to be taken against the ruling class, including their disenfranchisement, at least for a period of time. But her argument was that socialism is not about a simple set of negative decrees that can be reduced to formula. Rather, it is about the complete transformation of social relations between human beings, and that therefore the broadest protection of fundamental human rights is mandatory. For Luxemburg, then, it was only through the promotion of radical forms of participatory democracy that we could begin to turn the hazy dream of a transformed society into a daily lived reality. To do that we needed as much democracy as possible, forms of democracy that are barely imaginable under capitalist exploitation. But she also believed that their protection as rights, particularly in the kind of emergency situation that Lenin faced, was crucial to keeping alive the transformative project, even under conditions of the worst emergency. Thus the process of constituting a revolutionary government would involve constitutional protection of those basic rights as absolutely necessary to the development of the fullest form of democracy human beings had ever imagined. For her, interestingly, the notion of the dictatorship of the proletariat was not against democracy; it was merely one form democracy could take, because the proletariat with the peasants formed the vast majority of the people. Therefore it was a mistake to take the dictatorship of the proletariat and oppose it to democracy. It was meant to be the furthest reaches of democracy developed by the creative initiative of the masses of people in revolutionary struggle. But Luxemburg’s attempt to reconcile the dictatorship of the proletariat with the new experimental forms of democracy and the basic protections of human rights was not how the dictatorship of the proletariat came to be understood by the Third International. It degenerated into the dictatorship of the Communist Party, who ruled according to “the truth” of dialectical materialism. Although a detailed discussion is beyond the scope of this book, it is worth noting that many of the revolutions in Africa broke with that view of the Third International, trying out a number

Introduction

7

of experiments in the mobilization of democratic ideals and new forms of democracy. We have set out this relatively lengthy introduction on revolutions to provide context for the complexity and uniqueness of the South African constitutional project. World history thus far has provided us with a deeply depressing dichotomy for structuring our societies: either we must embrace neoliberal capitalism and the strong but narrow conception of the rule of law it employs to protect private property and the free flow of money; or we must for this reason reject the rule of law and pursue a transformation of social relationships that never materializes and results instead in the kind of totalitarianism and crony capitalism that Luxemburg so presciently predicted would befall the Soviet Union. South Africa’s transformative constitutional project is important and interesting precisely because it offers us an example of a possible way out of this dichotomy: a chance to achieve justice in our social relations not in spite of the law, but through the law. Indeed, we would not be writing this book if we did not believe that it was possible to work within the constitutional framework to reform it, to push it to the left, and to develop a jurisprudence that would allow for sweeping economic reform. There are those on the so-called radical Left who reject the Constitution because, at best, they subscribe to a bankrupt Leninist interpretation of Marx, or at worst, they perceive the Constitution as a convenient scapegoat in the fight to gain or hold onto political power. There are those on the Right who reject the Constitution because they want to remain free of constitutional demands in the so-called private sphere, so that they do not have to part with their riches, and may continue to enjoy the “fruits” of apartheid in the microcosms of their businesses, neighborhoods, clubs, and homes. Against these diverse attacks, for anyone who cares about seeing the possibility of real social justice realized somewhere on Earth in our lifetimes, it is imperative to defend and prolong the South African constitutional experiment to the best of our abilities. What we hope to do in this book is to draw out a jurisprudence that might be rich enough to justify a constitutional project of this nature. While our focus here is on South Africa, we hope that our conclusions will be of relevance to constitutional theory throughout the postcolony. In this regard, both authors are deeply committed to defend the constitutional project by deploying the intellectual resources of indigenous philosophy, not only because that has value in and of itself, but because there is much to be gained from the application of local solutions to local

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Introduction

problems. Indeed, one of the authors has devoted a substantial amount of time over the last several years to studying and writing about the philosophy of uBuntu, and its implications for the interpretation of the South African Constitution and legal decision-making more generally. The defense of the South African Constitution through the philosophy of uBuntu is not, however, our present project. In this book, our defense of the Constitution turns to Ronald Dworkin. We have been motivated in no small part by the tragedy of his passing in 2013, which robbed us of one of our most creative, articulate, and passionate advocates of social justice in the United States and across the globe. But we turn to Dworkin not only for sentimental reasons. Dworkin was undoubtedly one of the greatest political philosophers of the last century. He developed, over the course of a lifetime of work, the most comprehensive theory of constitutional interpretation we have available to us today in any philosophical tradition. The central concern of Dworkin’s work has been to carve out a role for ideals in an unideal, broken world. This he sought to do by breaking away from what he saw as legal positivism’s indifference to the achievement of social justice, while nevertheless attempting to make sense of and to justify the legal decisions (statute and precedent) that have already been passed into law. Indeed, the motivational narrative underlying Dworkin’s work has always been the litigant standing before a judge who is unable (under positivism) to demand that her case be decided in a just way, and his belief that that demand not only should be made but could be made within the existing structures of the Anglo-American legal system. In this way, Dworkin’s struggle mirrors South Africa’s struggle—to advance social justice through the law while working within, rather than completely rejecting, existing legal practice. Like the South African Constitution, Dworkin had enemies both on the Far Right and the radical Left. For the Right, his claims about the extensive obligations we owe to others were seen as an illegitimate constraint on the kind of liberty that is prized by neoliberal capitalism. For the radical Left, his very project of working justice through law was a misguided attempt that could serve only to entrench the interests of the ruling class. Dworkin, like Luxemburg, was trying to carve a path between an outright rejection of law and an entrenchment of neoliberal politics by arguing for a transformation of social relationships through law itself. Since this is precisely what must happen in South Africa if its constitutional experiment is to succeed, Dworkin is a critical theoretical ally.

Introduction

9

We turn to Dworkin as someone who most definitely saw law as having just this transformative power, and therefore as being crucial to what he would have called democratic reform and a move toward much greater social equality. Thus, although he stops way short of a commitment to socialism, Dworkin’s thinking about the relationship between law and social justice, and his strong antipositivism, remains an important perspective on the inherent limits, but also the creative possibilities, of law. Our argument in this book proceeds primarily through an extended but critical engagement with Dworkin’s pioneering jurisprudential work, in the course of which we offer a detailed review of the arc of his thought, from his first book, Taking Rights Seriously, to the culmination of his philosophy in Justice for Hedgehogs, published shortly before his passing in 2013. Our project then is to critically engage Dworkin’s significance for a substantive revolution. While recognizing Dworkin’s singular importance in the Anglo-American world for his critique of legal positivism and legal realism, our discussion of his work is not without criticism. Indeed, part of our critique of Dworkin is that his insistence on fidelity to past precedent sometimes leads him into an inadequate theorization of his own strong antipositivist view of law. Indeed, in his early work, he ultimately fails to make his professed break with legal positivism. (In this way, his early work is an image of what South Africa might become, despite its new Constitution, if it fails adequately to break with the radical inequality that defines its past.) Moreover, we believe that there is a danger inherent in reading the past through rose-colored glasses in an attempt to see the good underlying the existing body of law, since in the body of South African apartheid law, not much good may be there at all. And yet, the transformation of existing law to match the ideals of the Constitution—sometimes by seeing in that law a benevolent intent, which could not have been the intent of its makers—is precisely the goal that South Africa has set for itself. This is why Dworkin is important for our purposes, particularly since even from his early work, Dworkin’s turn to the past is always the work of “recollective imagination” of the underlying ideals or spirit of law. Here, we believe that Dworkin is best understood through a reading of Hegel, in order to understand the constitution of the community of principle, which is central to Dworkin’s interpretive theory. Viewed in this way, Dworkin’s two-stage approach, as he calls it, in which one recollects imaginatively the spirit of the past law into a projection of the trans-

10

Introduction

formative ideals that purportedly underlie that law, is relevant to the South African case. As we will see, under section 39 of the South African Constitution, the substance of the ethical revolution must guide the transformation of all social relationships—all law in South Africa must therefore live up to the ideals of the Constitution, and each judgment must state explicitly how the law is adequate to the new constitutional dispensation. Despite the usefulness of Dworkin’s early work for the South African constitutional project, we believe that the Constitution is, in a profound way, much more congruent with Dworkin’s later work. Particularly in Justice for Hedgehogs, Dworkin makes an expressly Kantian turn in which fidelity to the past is transformed into fidelity to his two principles of human dignity. Since dignity is the cornerstone of the South African Constitution, a further synergy emerges here between the evolution of Dworkin’s thought and the trajectory of the South African constitutional project. According to Dworkin’s latest work, it is the ideal of dignity, which offers us the possibility of a reconciliation of ethical and moral life. We will carefully track that development in Dworkin’s work, because we believe that fidelity to dignity is central to the ethical transformation demanded by the substantive revolution in South Africa. Kant, as Dworkin recognizes, is of special importance here, and we draw on Kant to lend coherence to this new dimension of Dworkin’s thought. However, even as his own position moved closer to critical idealism, Dworkin fell short of embracing the idea of a Rechtstaat as the most promising framework for his two principles of dignity. We will therefore turn not only to Kant but also to Hegel to highlight limitations in Dworkin’s own antipositivist stance. Dworkin’s important contributions to philosophy extend well beyond his theory of law. He made important contributions to debates about the nature of interpretation generally, about the coherence of skepticism, about the nature of rights, and about objectivity. In addition, he has published groundbreaking work on many of the most important issues in contemporary moral and political philosophy, often bringing his thought to a wider audience through his popular writings in the New York Review of Books and elsewhere. Although we cannot give each of these themes in his work the individual treatment they deserve, we inevitably discuss them in the process of explicating his philosophy of law, particularly in our discussion of Justice for Hedgehogs, where Dworkin is clearer than ever on how he views the connections between these different philosophical issues.

Introduction

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This book is divided into six chapters. In Chapter 1 we review Dworkin’s path-breaking work in Law’s Empire, in which he offers a powerful critique of legal positivism, which still frames much of the debate today between competing legal theories and within positivism itself. We argue, however, that Dworkin ultimately failed to break with legal positivism. Instead, his attempt to distinguish his own constructive interpretivism from legal pragmatism led him to reinscribe legal positivism, or what Hart himself would have called “soft positivism” because, at that point at least, Dworkin insisted that a reconstructed interpretation is still working with the actual praxis of the community—even if that community is one which embodies purposes and therefore cannot be reduced to a de facto social reality. Our argument seeks to highlight the inherent tensions in Law’s Empire, and thus to provide an appropriate background against which to consider the development of his thought in his later work. In Chapter 2 we argue that Dworkin’s work in Law’s Empire is best understood through a reading of Hegel in order to understand the constitution of the community of principle that Dworkin defends in that work. Indeed, we defend the proposition that Dworkin’s advocacy and eloquent defense of an ideal we that can be reconstructed in law-making is best served by a Hegelian explanation for the ideality of that we. This reading of Hegel is important not only for an understanding of Law’s Empire, but also for our explanation of what relevance even Dworkin’s work might have for law in the postcolony. In Chapter 3 we take the reading of Dworkin developed in the previous two chapters and argue that it defends and illuminates the interpretive approach the Constitutional Court has adopted toward the South African Constitution. Of particular importance here, we show that section 39(2), one of the key provisions through which the Constitution seeks to do its revolutionary work, is the very embodiment of the obligation that, for Dworkin, flows from the nature of law itself: that is, it embodies the obligation to develop the law in light of the best justification we can offer for the law on the basis of the principles that inhere within it. However, we also argue that Dworkin’s work, at least as it stands in Law’s Empire, risks dishonesty in its attempt to view the past legal practice of our community through rose-colored glasses, and in so doing, to write away the horror that was caused by and remains embodied in that past. In Chapter 4 we consider the manner in which Dworkin, subsequent to Law’s Empire, continued to develop both his critique of positivism and his

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Introduction

own forceful attempt to develop a nonpositivist jurisprudence. While retaining many of the insights and arguments of Law’s Empire, Dworkin’s later work openly advocates a necessary connection between law and dignity, and between law and political morality. In a series of important books—from Sovereign Virtue and Justice in Robes to Is Democracy Possible Here? and his Justice for Hedgehogs—Dworkin develops a comprehensive conception of political morality and its account of the fundamental values of equality and freedom, and of the ideal of legality itself. He also aims to show how this political morality must ultimately be understood within an even more holistic and humanistic view of morality, ethics, and politics that would aspire to Platonic unity. To quote Dworkin’s boldness: I said earlier that political concepts are concepts of value, and that political philosophers should aim to show, for each of them, more precisely where its value lies. I said that since political values are integrated rather than detached, this project must find the place of each value in a larger and mutually supporting web of conviction that displays supporting connections among moral and political values generally and then places these in the still larger context of ethics. This picture of political philosophy is not only widely ambitious—it can only even be imaged in a cooperative way—but it is also, as I conceded, very much against contemporary fashion. It is not in the spirit of modest value pluralism. It aims at a utopian and always unrealized goal—Plato’s unity of value—instead.

Thus, we will review Dworkin’s most recent attempts to justify philosophically his reconstructive interpretive approach. This includes his engagement in Justice in Robes with Hart’s postscript to The Concept of Law, which Hart wrote as a response to Dworkin’s sustained critique of his position. In Chapter 5 we discuss the expressly Kantian turn made by Dworkin in Is Democracy Possible Here? and Justice for Hedgehogs, in which he argues that integrity in law is, ultimately, fidelity to dignity. In Chapter 6 we defend a holistic interpretation of section 10 of the South African Constitution, which declares that all South Africans have dignity as well as a right to have their dignity protected. Following Emeritus Justice Laurie Ackermann we argue that dignity can be interpreted as the Grundnorm of the entire constitution and that this holistic interpretation of the constitution is consistent with Dworkin’s own understanding of law and legal interpretation. The Constitution of South Africa, therefore, rests on

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dignity and this is consistent with Dworkin’s later argument in Justice for Hedgehogs that the two principles of dignity are what should underlie modern constitutions. We then use his concept of special liability responsibility to argue why the beneficiaries of apartheid in South Africa can and should be held responsible for certain reparative measures and that this responsibility is consistent with the protection of their dignity. We conclude this book by summarizing that we write with some urgency because the South African Constitution is under attack from both the Left and the Right and therefore our review of Dworkin’s work is practically as well as theoretically important because it is often used to attack the integrity of the Constitution. In reviewing Dworkin’s body of work in its entirety, we hope to demonstrate the increasingly sophisticated responses he developed throughout his career to address several fundamental questions of political morality, and its ongoing importance for thinking through some of the most challenging political questions of our time, including those posed by the South African constitutional project. We show that Dworkin’s thought culminates in a defense of an aspirational ideal of legality rooted in a political morality in which integrity, for Dworkin, ultimately comes to mean fidelity to his two principles of dignity. These two principles turn out to be deeply instructive in thinking through dignity as the Grundnorm of all law in South Africa, and thus as the core animating ideal for the transformation of social and economic relationships through the rule of law.

1

Integrity to the Past

In Law’s Empire, Dworkin adopts the position that law is essentially an interpretive enterprise. In the opening pages, he sets out to defeat the positivist challenge to his own view of law as interpretation. He calls the challenge to his own position the “plain-fact view of law.” Such a view holds that theoretical disagreement about what constitutes the law is impossible, and that interpretation is therefore unnecessary. What we are really disagreeing with in the guise of interpretive debates, so the argument goes, is not what the law is, but only what it should be. An appeal to the reality of disagreement in interpretation is either an excuse for the introduction of morality into the law or merely our “empirical disagreement about what legal institutions have actually decided in the past.” The plain-fact view of law argues that there can be no theoretical disagreement about what the law is, because the very meaning of the word law supposedly holds within it certain criteria that can be known and that cannot be challenged without falling into selfcontradictory nonsense. Dworkin summarizes the plain-fact view of law in the following way: 14

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We follow shared rules, they say, in using any word: these rules set out criteria that supply the word’s meaning. Our rules for using “law” tie law to plain historical fact. It does not follow that all lawyers are aware of these rules in the sense of being able to state them in some crisp and comprehensive form. For we all follow rules given by our common language of which we are not fully aware. We all use the word “cause,” for example, in what seems to be roughly the same way—we agree about which physical events have caused others once we all know the pertinent facts—yet most of us have no idea of the criteria we use in making these judgments, or even of the sense in which we are using criteria at all. It falls to philosophy to explicate these for us. . . . A philosopher’s account of the concept of causation must not only fit, moreover, but must also be philosophically respectable and attractive in other respects. It must not explain our use of causation in a question-begging way, by using that very concept in its description of how we use it, and it must employ a sensible ontology. We would not accept an account of the concept of causation that appealed to causal gods resident in objects. So, according to the view I am now describing, with the concept of law. We all use the same factual criteria in framing, accepting, and rejecting statements about what the law is, but we are ignorant of what these criteria are. Philosophers of law must elucidate them for us by a sensitive study of how we speak.

Thus, according to Dworkin, both Austin and Hart insist that their positivist theories of law are really only explications of the criteria to which we all implicitly refer when we use the word law. The linchpin of the plainfact view of law is the assumption that there are shared grounds or criteria implicit in the very use of the word law that can be made explicit. It is precisely this assumption that Dworkin challenges through his examples of case law.

the radical divide In the McLoughlin case, for instance, the judges were confronted with the issue of whether a person not on the scene of an accident could recover damages for the personal injury caused to her by the shock of seeing in the hospital, hours after the accident, how seriously her family had been hurt. The judges of the House of Lords reached a unanimous decision to reverse

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the court of appeals’ refusal to extend liability, but they diverged on the state of the law. “Several of them said that policy reasons . . . might in some circumstances be sufficient” to justify a judge’s refusal to expand liability, but those circumstances were not controlling in this case. Two of the Lords, on the other hand, argued that policy reasons could not be used to deny her entitlement unless the legal principles assumed in the earlier cases did not apply. They disagreed, in other words, about what it meant to follow precedent in this case. Dworkin attempts to show that the judges were not just “keeping their fingers crossed,” really knowing all the while that they were arguing about morality as they pretended to disagree about the state of the law. Nor was the basis for their argument reducible to the danger inherent in using a word like law, whose complexity of definition may keep its criteria for usage from being easily fixed at the boundaries. Instead, Dworkin argues that there was a fundamental argument about the very criteria for the use of the word law. The conclusion he believes should follow from McLoughlin and other examples is that: [T]he various judges and lawyers who argued our sample cases did not think they were defending marginal or borderline claims. Their disagreements about legislation and precedent were fundamental; their arguments showed that they disagreed not only about whether Elmer should have his inheritance, but about why any legislative act, even traffic codes and rates of taxation, impose the rights and obligations everyone agrees they do; not only about whether Mrs. McLoughlin should have her damages, but about how and why past judicial decisions change the law of the land. They disagreed about what makes a proposition of law true not just at the margin but in the core as well.

In other words, Dworkin argues that the plain-fact view of law does not correspond to our experience of actual legal debates. When we read the McLoughlin case we sense immediately that Dworkin is right to insist that the judges were disagreeing about what makes a proposition of law true and, therefore, about the intrinsic criteria inherent in the meaning of the word law. Dworkin is refuting Austin’s assertion that, when he defines the truth conditions of law as the correct reporting of the past command of the person or group who occupies the position of sovereign in that society, he is only accurately reporting what law is for us. Austin, in other words, is defeated by the terms of his own defense, that his project successfully elaborates the criteria inherent in our everyday use of the word law. Dworkin,

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in spite of his challenge to Austin, still accepts that an adequate explanation of legal interpretation must match, even if only imperfectly, the actual practice of judges and lawyers. His argument is that the plain-fact view of law is undermined by its own claim that it does match this experience when it clearly does not: If legal argument is mainly or even partly about pivotal cases, then lawyers cannot all be using the same factual criteria for deciding when propositions of law are true and false. Their arguments would be mainly or partly about which criteria they should use. So the project of the semantic theories, the project of digging out shared rules from a careful study of what lawyers say and do, would be doomed to fail.

We can also reach Dworkin’s conclusion with the help of the later Wittgenstein. For Wittgenstein, it is precisely because we appeal to communitarian standards (in order to make sense) that we cannot determine the entire repertoire of community standards. The philosopher cannot stand outside the relevant language game, making explicit the very boundaries and practices that were only implicitly realized in the usages of ordinary people. The rules are not there for one to know, for the rules themselves are only given meaning in and through our participation in the relevant language games. It is not, however, that there are no rules in law, but rather that it is interpretation that gives us the rules, and not the rules that give us the ground for interpretation. Indeed, the later Wittgenstein teaches us that there can be no ground for interpretation. However, the absence of a ground for legal interpretation does not necessarily mean that we are thrown back into nihilism. In fact, we can now see how the insight of the later Wittgenstein also bolsters Dworkin’s own argument against external skepticism. External skepticism, as Dworkin defines it, is the position that concludes that, because we can never get outside our language game, we can never definitively provide ourselves with objective criteria for judging competing interpretations, whether in law or in art. For example, Dworkin argues that one very convincing interpretation of Shakespeare’s Hamlet is that it is about delay. Dworkin explains the external skeptic’s response to whether that interpretation should be accepted: An “external” sceptic might say, “I agree with you; I too think this is the most illuminating reading of the play. Of course, that is only an opinion

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we share; we cannot sensibly suppose that Hamlet’s being about delay is an objective fact we have discovered locked up in the nature of reality, ‘out there’ in some transcendental metaphysical world where the meanings of plays subsist.”

Dworkin’s correct assertion is that external skepticism relies implicitly on the very metaphysical position it attempts to refute, for the skeptic cannot know that there is no beyond or metaphysical reality unless she gets outside her language game in one way or another. Dworkin also argues that we do not need an appeal to “objective” criteria in order to assess competing interpretations; we can instead rely on shared standards of literary interpretation. For Dworkin, there is another kind of skepticism that more accurately describes the skeptical practice within American legal circles. Dworkin refers to this second kind of skepticism as internal skepticism, which he defines as follows: “Internal skepticism . . . relies on the soundness of a general interpretive attitude to call into question all possible interpretations of a particular object.” In other words, the internal skeptic is a person who calls into question the value of a particular social practice. The very process of calling a particular practice into question is done through an appeal to the values and standards of criticism available to us within our form of life: “[H]e relies on, instead of scorning, the idea that some social practices are better than others; he relies on a general attitude about social value to condemn all the interpretations . . . offered by his fellows. He assumes his general attitudes are sound and their contrary ones wrong.” Importantly, the internal skeptic operates within the established social practices, even if his operative stance is one of radical questioning. Dworkin also attempts to argue against either individualist or collectivist versions of subjectivism in interpretation; that the practices we interpret are actually “there.” For Dworkin, even the internal skeptic relies, for the power of his critique, on an externalized, objectified practice. Interpretation, in other words, is not just a matter of communities or individuals engaging with themselves: Social practices are composed, of course, of individual acts. Many of these acts aim at communication and so invite the question, “What did he mean by that?,” or “Why did he say it just then?” If one person in the community . . . tells another that the institution requires taking off one’s hat to superiors, it makes perfect sense to ask these questions, and

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answering them would mean trying to understand him in the familiar way of conversational interpretation. But a social practice creates and assumes a crucial distinction between interpreting the acts and thoughts of participants one by one, in that way, and interpreting the practice itself, that is, interpreting what they do collectively. It assumes that distinction because the claims and arguments participants make, licensed and encouraged by the practice, are about what it means, not what they mean.

Interpretation is thus an interaction between the participants in the practice and the actuality of the practice itself. To demonstrate his understanding of this relationship, Dworkin uses the example of the established practices of courtesy. Dworkin argues that, as we all know, there are certain practices of courtesy that are mechanically accepted because the norms they embody are so deeply internalized that they are not challenged. As the norms of the society begin to change, these established practices of courtesy are called into question. Think, for example, of the long-established practice of having men open doors for women—it was questioned and reinterpreted by the feminist movement of the 1970s. Dworkin’s argument is that the questioning of a practice takes place within the context of the practice itself, because within the conduct of that practice are underlying purposes that are also being expressed. When we begin to reinterpret the practice, we do so on the basis of an immanent critique, which suggests that the purposes embodied in the practice are no longer adequately expressed in the current conduct of the practice. According to Dworkin, during these periods of social change in which reinterpretation of established practices is widely understood to be necessary, we develop an attitude toward the old rules that has two components: The first is the assumption that the practice of courtesy does not simply exist but has value, that it serves some interest or purpose or enforces some principle—in short, that it has some point—that can be stated independently of just describing the rules that make up the practice. The second is the further assumption that the requirements of courtesy—the behaviour it calls for or judgments it warrants—are not necessarily or exclusively what they have always been taken to be but are instead sensitive to its point, so that the strict rules must be understood or applied or extended or modified or qualified or limited by that point. Once this interpretive attitude takes hold, the institution of courtesy ceases to be

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mechanical; it is no longer unstudied deference to a runic order. People now try to impose meaning on the institution—to see it in its best light—and then to restructure it in the light of that meaning.

Here Dworkin argues both that there are real practices that are actually there for us to interpret, and that these practices institutionalize purposes open to reinterpretation. The interpretive attitude does not need to rely on outside normative principles, but can instead base its reinterpretation on an immanent critique. It is important to note that, for Dworkin, it is not critique that is fundamental, but reconstruction. The interpreter is not only to imagine how the practice might be established differently; she is to reconstruct what that practice actually meant in the past. The interpreter, in other words, is to put on her rose-colored glasses so that she can see what the practice has meant in the past, once it is put in its best light. In Law’s Empire, Dworkin argues that this practice of seeing the world through rose-colored glasses is relevant to how we understand the role of intent in legal interpretation. Citing Hans-Georg Gadamer for the proposition, Dworkin shows us that we must always imply an intent when we interpret, but only in a very specific sense: I mean that an interpretation is by nature the report of a purpose; it proposes a way of seeing what is interpreted—a social practice or tradition as much as a text or painting—as if this were the product of a decision to pursue one set of themes or visions or purposes, one ‘point,’ rather than another. This structure is required of an interpretation even when the material to be interpreted is a social practice, even when there is no historical author whose historical mind can be plumbed.

When we posit intent we construct the best possible reading in light of what would most fully realize the implied purpose of the practice. When the critic interprets the intent of the author or painter involved, she necessarily brings her own sense of artistic standard to the project—that is what gives her the vantage point to argue that the ambitions of the author would be best realized if her work were read in this particular way. For Dworkin, the engagement of the interpreter’s own interpretative stance does “not mean that [the] use of artistic intention is a kind of fraud, a disguise for the interpreter’s own views. For the imagined conversation has an important negative role: in some circumstances an interpreter would have good reason to suppose that the artist would reject a reading that appeals to the interpreter.”

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Following Gadamer, Dworkin insists that the process of reconstructing intent is dialogical precisely because the author’s exact psychological intention cannot be plumbed. Dworkin wants to make it clear that he has abandoned the crude conscious-mental-state view of intention, which is why he is able to argue that we construct an intent even when there is no specific author. In both the examples of how we interpret the practice of courtesy and of how we construct intent, Dworkin shows that it is possible to put on rosecolored glasses when we interpret because the very social practices, legal texts, or works of art to which we give our attention embody purposes and intents that provide the standpoint for reconstruction. When we reconstruct, we do so from within the practice, not by imposing outside principles upon it. Dworkin’s central point is that these practices contain purposes, and that an adequate interpretation must be true to those purposes. A community, which is made up of social practices that embody purposes, cannot be reduced to a mere de facto reality. The act of interpretation itself demands that we examine the purposes of our social reality. It is important to note a tension in Dworkin’s own understanding of the inherent reconstructive aspect of the interpretive enterprise. For example, in his remarks on the distinction between justice and law, we are confronted by a tension in Dworkin between the is and the should be. As he explains: Law is also different from justice. Justice is a matter of the correct or best theory of moral and political rights, and anyone’s conception of justice is his theory, imposed by his own personal convictions, of what these rights actually are. Law is a matter of which supposed rights supply a justification for using or withholding the collective force of the state because they are included in or implied by actual political decisions of the past.

In other words, justice is prospective and, like morality, personal to the individual. Justice cannot be other than personal to the individual as long as Dworkin does not fully develop a conception of our collective ethics as they are embodied in law. (As we will show in Chapter 4, he subsequently moved much closer to the position, if not always consistently, that law is public morality.) The tension in Dworkin’s own conception of the ethical status of legal principle is also reflected in his uneasiness with the prospective aspect of interpretation as reconstructive. Dworkin understands that the judge cannot

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just describe what the law is when she announces her decision; she must also enunciate the principle or purpose embodied in the law governing a particular case. But since Dworkin maintains that legal interpretation is about what the law is and not about what it should be, it is difficult to understand exactly what is entailed in legal reconstruction of principle. Dworkin, in other words, wants to insist that we are held to the past of precedent and that even so, the appeal to the is or was of law always carries within it reconstructive potential. We will suggest that we can only make sense of the reconstructive potential of the is of law if we understand how the indeterminacy of legal principle unleashes the should be in the might have been in the reevaluation of our recollective ethics, and deconstructs the radical divide between the is and the ought that Dworkin, at least in Law’s Empire, still maintains.

three views of community Despite the tension in Law’s Empire just described, Dworkin’s recognition that the is of the community has inherent purposes leads him to conclude that we must determine which of the three competing theories of interpretation he discusses most forcefully embodies the purposes we associate with the rule of law. Dworkin contrasts his own view of law as integrity with conventionalism and legal pragmatism. Each of the three views of interpretation implies a view of community and an understanding of the purpose of a legal system. Before we discuss the different kinds of community implied in these three approaches to interpretation, we must counter a preliminary objection: that the very conception of community as an embodied set of practices, and therefore as a social reality, undermines one of the central insights of liberal contractualist political theory—the denial of the reality of the community in the name of individual liberty. Such theories advocate that the only legitimate restrictions that can be imposed by the state are those to which the individual would at least hypothetically agree on the basis of individual choice. The state, in other words, can legitimately defend its claim of obligation from its citizens only if such obligation can be justified on some theory of contractual consent. Dworkin understands that he must counter contractualist theories of justice and of legal obligation more generally. Does such a theory of contractual consent really converge with our experience of how and why we are obligated to our legal community? Dworkin thinks not: “The connection

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we recognize between communal obligation and choice is much more complex and more a matter of degree that varies from one form of communal association to another. Even associations we consider mainly consensual, like friendship, are not formed in one act of deliberate contractual commitment, the way one joins a club, but instead develop through a series of choices and events that are never seen, one by one, as carrying a commitment of that kind.” Nevertheless, Dworkin also recognizes that communal obligation rests on the establishment of certain preliminary conditions. Even if these conditions cannot be identified with contractual justice, obligation does not arise simply because the community exists. Dworkin identifies four components of the attitude that the group must have toward its members if “fraternal” obligation is to hold. First, the members must view the obligations that stem from belonging to the group as special, “holding distinctly within the group, rather than as general duties its members owe equally to persons outside it.” Second, the individual members must accept that their obligations are personal in the sense “that they run directly from each member to each other member, not just to the group as a whole.” Third, the obligations incurred by the individual group must be seen “as flowing from a more general responsibility each has of concern for the well-being of others in the group; they must treat discrete obligations that arise only under special circumstances, like the obligation to help a friend who is in great financial need, as derivative from and expressing a more general responsibility active throughout the association.” Fourth, the members of the group must believe that there is equal concern for all members, even within a hierarchical structure. Dworkin realizes that the four conditions he describes give only an abstract sketch of community. Every community is a specialized set of historical practices developed within a specific context. But Dworkin also reminds us that the mere recognition that certain conditions must be met in order for an obligation to hold does not return us to a contractualist understanding of community: “[Nothing] in the four conditions contradict[s] our initial premise that obligations of fraternity need not be fully voluntary. If the conditions are met, people in the bare community have the obligations of a true community whether or not they want them, though of course the conditions will not be met unless most members recognize and honour these obligations. It is therefore essential to insist that true communities must be bare communities as well.”

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The conditions necessary for a bare community do not define the principled practice embodied in the rule of law in a democratic society. For Dworkin, the norm or value embodied in the modern conception and practice of the rule of law is integrity: “Law insists that force not be used or withheld, no matter how useful that would be to ends in view, no matter how beneficial or noble these ends, except as licensed or required by individual rights and responsibilities flowing from past political decisions about when collective force is justified.” And how should one understand law as integrity? “Law as integrity asks judges to assume, so far as this is possible, that the law is structured by a coherent set of principles about justice and fairness and procedural due process, and it asks them to enforce these in the fresh cases that come before them, so that each person’s situation is fair and just according to the same standards.” Integrity, then, is not just consistency in fact with precedent, but consistency in principle with the standards embodied in the past cases. When the judge vindicates one interpretation over another, she not only gives meaning to her interpretation but also claims for her interpretation a principled rightness. She not only claims that her specific decision in this case is both consistent with precedent and with the facts of the case, but also that her decision ought to carry authority for the principle she has enunciated. If another judge is to disagree with her decision, that judge must do so on the basis that the principle originally enunciated is an incorrect statement of principle. For Dworkin, then, the process of judging always demands that the judges speak to the principles that have been enunciated in the cases, not just to the meaning of the sentences in which the principles are laid out. For Dworkin, rational coherence is an ideal that inheres in this very process of enunciating principles: Is integrity only consistency (deciding like cases alike) under a prouder name? That depends on what we mean by consistency or like cases. If a political institution is consistent only when it repeats its own past decisions most closely or precisely in point, then integrity is not consistency; it is something both more and less. Integrity demands that the public standards of the community be both made and seen, so far as this is possible, to express a single, coherent scheme of justice and fairness in the right relation. An institution that accepts that ideal will sometimes, for that reason, depart from a narrow line of past decisions in search of

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fidelity to principles conceived as more fundamental to the scheme as a whole.

Yet, anyone who accepts law as integrity must also accept “that the actual political history of his community will sometimes check his other political convictions in his overall interpretive judgment.” When our officials act in their official capacities, they are the voice of the community. “Judicial opinions formally announced in law reports, moreover, are themselves acts of the community personified that, particularly if recent, must be taken into the embrace of integrity.” The striving for rational coherence is an essential aspect of Dworkin’s conception of the community personified. The state is to speak with a single voice, as if it were a personality. To speak in different voices would be to undermine the personification of the community, as it would also supposedly defeat the community’s claim to authority as a community of principle. For Dworkin, “a judge who accepts integrity will think that the law it defines sets out genuine rights litigants have to a decision before him. They are entitled, in principle, to have their acts and affairs judged in accordance with the best view of what the legal standards of the community required or permitted at the time they acted, and integrity demands that these standards be seen as coherent, as the state speaking with a single voice.” Dworkin defines his personified community of principle in the following way: Members of a society of principle accept that their political rights and duties are not exhausted by the particular decisions their political institutions have reached, but depend, more generally, on the scheme of principles those decisions presuppose and endorse. So each member accepts that others have rights and that he has duties flowing from that scheme, even though these have never been formally identified or declared. Nor does he suppose that these further rights and duties are conditional on his wholehearted approval of that scheme; these obligations arise from the historical fact that his community has adopted that scheme, which is then special to it, not the assumption that he would have chosen it were the choice entirely his. In short, each accepts political integrity as a distinct political ideal and treats the general acceptance of that ideal, even among people who otherwise disagree about political morality, as constitutive of political community.

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According to Dworkin, the first of his competing approaches to law as interpretation, conventionalism, must be rejected in part because it cannot offer a view of community that justifies its claim to authority. The understanding of community offered by conventionalism is what Dworkin calls the “rulebook” view of community, a view consistent with the conventionalist approach to interpretation in general. For Dworkin, “[c]onventionalism holds that legal practice, properly understood, is a matter of respecting and enforcing these conventions, of treating their upshot, and nothing else, as law.” The view of community that inheres in conventionalism is one that accepts what Dworkin calls “checkerboard solutions,” solutions that allow legal principles to be applied differentially because of the compromises that must take place in any complex society. As long as the compromise is reached in an appropriate way, in accordance with the conventional rules of the society, the reality that it does not steadfastly apply principles across the board should not lead to its loss of legitimacy. It is the following of the conventionally accepted rules for compromise that is important. As Dworkin explains: Conventionalism suits people each trying to advance his or her own conception of justice and fairness in the right relation through negotiation and compromise, subject only to the single overriding stipulation that once a compromise has been reached in the appropriate way, the rules that form its content will be respected until they are changed by a fresh compromise. A conventionalist philosophy coupled to a rulebook model of community would accept the internal compromises of our checkerboard statutes, as compromises reached through negotiation that ought to be respected as much as any other bargain.

The pragmatic alternative also leaves us with an inadequate conception of the purposes of our legal community. According to Dworkin, the pragmatist supposes “that members of a community treat their association as only a de facto accident of history and geography, among other things, and so as not a true associative community at all.” Pragmatism, then, ignores the past in favor of visions of the future. It is not that the pragmatist simply denies principles and rights, but rather that she only refers to them as they are strategically useful for the actualization of her own ideal community. There is no reason for allegiance to her presently existing community if it fails to meet her ideal. She just happens to be a member of this commu-

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nity and no other, and nothing follows from that coincidence. As Dworkin explains, pragmatism requires “that judges do and should make whatever decisions seem to them best for the community’s future.” What this means is that the pragmatist who operates within our own common law system, with its emphasis on precedent, is a liar, for she appeals to precedent not in the name of the principles it enunciates but in the name of her own vision. Legal pragmatism, for Dworkin, leaves us with the worst kind of subjectivism in interpretation, as each judge attempts willfully to impose her best vision of the future.

the chain novel In addition to countering contractualist theories of legal obligation, Dworkin believes that there is a second barrier he must cross in order to develop successfully his own conception of law as integrity. He wants to show us that consistency with precedent is indeed possible. He defends the position that there are inherent constraints in the interpretation of social and legal reality. To do so, he uses the example of the group novel. For Dworkin, the past embodied in precedent weighs on the judge in the same manner that the work of those who have written before has shaped a group novel, so that each new writer is progressively more constrained as the novel takes shape. Dworkin is trying to show us the reality of the group project as it develops. According to Dworkin, there is really “something there” that has arisen in and through precedent and which acts as an effective constraint on the community of interpreters: Deciding hard cases at law is rather like this strange literary exercise. The similarity is most evident when judges consider and decide “commonlaw” cases; that is, when no statute figures centrally in the legal issue, and the argument turns on which rules or principles of law “underlie” the related decisions of other judges in the past. Each judge is then like a novelist in the chain. He or she must read through what other judges in the past have written not simply to discover what these judges have said, or their state of mind when they said it, but to reach an opinion about what these judges have collectively done.

Although the novel is the result of the creative and subjective efforts of individuals, what they create is objectified as the novel, which in turn acts

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as a constraint on their own project. The tradition that has been objectified is the basis for the possibility of integrity. If we are to be faithful to the rule of law, there must be something “there” to which we may be faithful. To understand how we might be faithful to that something “there,” we now turn to discuss Hegel’s philosophy of right.

2

The Hegelian Conception of a Properly Constituted Community

In this chapter we argue that Hegel offers us a philosophical framework that explains how an idealized “we” comes to exist, and thus provides the best defense in favor of the community of principle on which Dworkin’s work relies in Law’s Empire. Although we discuss in Chapter 3 the limits of Hegel’s notion of the Rechtsstaat for the South African Constitution (or, for that matter, any other state in Africa), we will argue here that Hegel’s complex understanding of the philosophy of right is a useful tool for Dworkin in understanding his community of principle. There are insights in Hegel for how we think about the embeddedness of law in some kind of idealized “we” that points us to how a constitution, and law itself, is always integrally tied to ideals. We believe that Dworkin’s community of principle is best defended through a reading of Hegel because Hegel provides us with three factors crucial to an adequate understanding of legal interpretation. First, he develops a noncontractualist understanding of community, based on an embedded view of individuals, that at the same time appreciates the need to protect 29

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the sphere of private right. Second, he reveals the ethical reality of Sittlichkeit, which allows us to account for how properties such as integrity, which we normally associate with individuals, can be attributed to a community. Third, he gives us the realized relations of reciprocal symmetry as the embodied ideal expressed in the very conception of a modern legal system. It is this ideal which justifies both the rule of law and the rights of the individual and at the same time provides a mechanism for assessing when it is valid to break with institutionalized meaning. We will explore Hegel’s account of each of these factors in turn.

the noncontractualist understanding of community In order to understand Hegel’s associative view of community we want to begin with the account of the development of self-consciousness in the Phenomenology of Spirit. The starting place for such an account is Hegel’s master/slave dialectic. Although any attempt to summarize this dialectic will fail to be true to the richness of Hegel’s narration, we will be unable to grasp fully Hegel’s understanding of communal obligation in the Philosophy of Right unless we first come to terms with what Hegel means by the reciprocal constitution of subjectivity. Hegel held that consciousness arises in and through the experience of a world that is other to the self. A sense of oneness with the world is shattered by the thwarting of desire in the confrontation with otherness. The striving to recreate the sense of oneness with the outside environment leads the self to negate the “otherness” of the other. The world of externality lurks as a persistent threat. The consciousness that arises out of the experience of negation seeks the coincidence of the “I” with itself through the subjugation of that which threatens its self-identity. As it is with the world of objects, so it is with the initial encounters with other selves. They too belie the coincidence of the identity of the “I” with all that surrounds it. They too must go under, if the “I” is to overcome its alienation from externality and make the world a home again. Other human selves are not so easily negated, however. They resist. In the contest of resistance, the “I” encounters itself in the other. The other that resists is like itself. What is encountered is the desire of the other for sovereignty played out in her resistance to being mastered. Yet, in the initial contest, the experience of the desire of the other does not lead to mutual recognition, but to a battle to the death, the ultimate negation of the self.

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The one who rises above the impulse to self-preservation through the risk of death defeats the other who cowers before him. As he faces down his own fear of annihilation, he achieves a new sense of identity. In contrast, the slave is the one who clings to the continuance of physical existence and ultimately submits to rather than faces death. Ironically, success in the effort to negate the other undermines the goal for which it was undertaken—the goal of finding oneself in the other through the assertion of one’s subjectivity. The master no longer sees herself in the desire of the other. The other becomes a foreigner, an object, no longer able to pit her own desire against her opponent. The striving for the selfcoincidence of the “I” with otherness turns against the aspiration to find oneself a home in the world. The achievement of mastery is self-defeating. We can only find ourselves in the other if she remains a subject, another desiring “I.” What is desired according to Hegel is not the other’s submission, but the other’s desire. Only another creature that also desires the desire of the other can recognize the “I” for the kind of unique self-conscious being she really is. In the moment of mutual recognition, the “I” experiences confirmation of her own self-consciousness as she in turn conceives the other as being like herself in that the other, too, is a self-conscious being. The stance toward the other is one of reciprocal symmetry. Each is recognized as a self, an “I,” by recognizing the other. In Hegel, mutual self-recognition is the first glimmer of the Absolute, “the I that is we and the we that is I.” The “I” of self-consciousness does not predate the social encounter. Instead, self-consciousness is understood to arise out of the clash of desiring wills in the struggle for mutual recognition. It is important to note here that not only is self-consciousness a social achievement, it is an achievement fully realized only in a relationship of reciprocal symmetry and mutual codetermination. Hegel then distinguishes between the consciousness, which arises out of the negativity of the experience of the outside world, and the selfconsciousness which demands recognition by an interlocutor who is also a self-conscious being: The concrete return of me into me in the externality is that I, the infinite self-relation, am as a person the repulsion of me from myself, and have the existence of my personality in the being of other persons, in my relation to them and my recognition of them, which is thus mutual.

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The individual who is recognized as another “I” is recognized as a person. The autonomy of the other must be maintained if the other is to fulfill its destiny as a true Gegenspieler, or equal interlocutor. It is, of course, important to note that the conclusion of the master/slave dialectic is only the beginning of the realization of relations of reciprocal symmetry. The struggle between the self and the other opens up the highway of despair we must traverse before we reach Absolute Knowledge. For Hegel, it is ultimately only within a community of reciprocal recognition that personality comes to fruition and achieves normative validity as the very basis of the modern conception of right. The collective education (Bildung) that Hegel traces in the Phenomenology culminates in the self-awareness of the relation of personality to its constitutive other, the “we” of reciprocal recognition. The value of personality, then, is not derived from transcendental arguments about human nature and rationality; instead, the right of individuals to be recognized as persons grows out of the establishment of an intersubjective practice. Recognition, Anerkennung, is not only the defining conception of self-identity in Hegel; recognition is also a normative practice embodied in the institutions of right themselves. Hegel’s political philosophy does not begin with the hypothetical state of choice postulated in contractualist theories of obligation, but with the concrete, historical conditions of a human community in which the recognition of the individual entitlement to be a person is embodied in the law. We can now see how Hegel’s assumption—that the achievement of a community of reciprocal recognition is necessary for the realization of subjectivity—affects his analysis of private right and of contract, and allows him to develop a noncontractualist, associative view of community that incorporates the modern notion of the legal person. Hegel justifies both property and contract as abstract forms of interaction compatible with the realized norm of mutual codetermination and reciprocal symmetry. The conception of oneself as a legal person gives way to the higher form of recognition of oneself as a member of the state. Hegel, in this sense, is a strong communitarian. The recognition that one is truly a citizen, and not mainly a member of civil society, has ethical as well as political significance. The state can legitimately demand the loyalty of its citizens only if it, in turn, has protected the conditions for the flourishing of individuality in and through the legally established relations of reciprocal symmetry. The truth of the whole, then, does not obliterate the immediate stage of abstract right with which Hegel begins the Philosophy of Right, because this

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immediate stage opens up the initial space for individuality. That is all it provides, because “true” individuality cannot be found in the sphere of abstract right. Once we understand that the truth of the sphere of private right is to be found in the reality of relations of reciprocal symmetry, we can grasp that the realized ideal that justifies property and contract also justifies their curtailment. Hegel argues that the contract is based on the reciprocal recognition of each individual as a person. The very idea of the right to contract depends on the recognition of a subject of entitlement who cannot bargain away her status as a rights-bearing subject on the basis of imposed status obligations. For Hegel, the fundamental premise of the feudalism defeated by the bourgeois democratic revolutions is precisely the idea that the rights-bearing subject cannot alienate her own entitlement to personhood. As Seyla Benhabib explains: If contract is understood in its specifically modern sense as “the exchange of equivalents” in the market place, then it cannot be used as a norm to define the grounds of political authority in the modern state. These relations of obligation and authority derive their legitimacy from the fact that public rights of individuals are not private property, and cannot be alienated to others at will, but are secured by the impersonal and general norms of the rule of law.

The right of contract, in other words, must be limited to the private sphere in which alienable goods are exchanged. What is and is not an alienable good is established only as an intersubjective practice. According to Hegel’s historical account, the legal person herself is no longer an alienable good, because the very existence of the market is dependent upon the protection of the “free” person. Personhood is guaranteed by the public norms of the state; it is not something that exists by itself. The whirlwind of negotiations in civil society are now defined to exclude the loss of one’s public status as a subject of right. We cannot bargain away our legal personhood, even if we can sell our laboring capacity. The self is supposedly not sold when the worker alienates her labor power; only a capacity of the self is sold. The relationship to the employer is “de-personalized.” Personal relationships, such as those within the family, are removed from the sphere of abstract right. Slavery is illegal precisely because it demands the selling of the whole person, so that the person cannot opt out of the bargain. In other words, slavery would deny

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one’s status as a subject of right who relates to the employer only on the “depersonalized” basis of contractual negotiations. Status distinctions no longer define who one is through a structure of nonbreachable obligations. This protection of the subject of right, while necessary for the existence of civil society, also only finds its truth in the whole. Civil society is subject to the communal relations of reciprocal symmetry in which the fundamental right to be recognized as a person itself cannot be subjected to contract. In this sense, the obligation to the state or community is fundamentally noncontractual. The individual is obligated to the state because it is the state or community that guarantees the limit to the sphere of private contract and that protects the very rights-bearing capacity essential to the maintenance of subjects capable of entering into reciprocally binding contractual relations within the private sphere. The shift to a uniform system of centralized legal protection is necessary to break the hold of the prepolitical feudal associations, in which the rights and the duties of individuality could be regarded as contractually regulated private property. Without this shift, there would be no objective protection of personality. For Hegel, the very ideal of modern personality begins—and only begins—with the legal recognition of each one of us as a person who cannot be completely identified simply by her social role. Hegel explains: “Personality essentially involves the capacity for rights and constitutes the concept and the basis (itself abstract) of the system of abstract and therefore formal right.” Of course, what we offer here is an interpretation of Hegel. But those who argue that the Philosophy of Right justifies the perpetuation of order miss the tension that Hegel maintains between the demands of actualized relations of reciprocal symmetry and the existent positivity of any system of law or state. The myth of contractual obligation as the basis for the modern state is replaced by a narration that renders explicit the relations of reciprocal symmetry and mutual codetermination that have been realized in the democratic structures of the modern state. At first glance, Hegel’s understanding of the relations of reciprocity may seem little more than a restatement of the ideal of formal equality. However, one major difference between the Hegelian ideal of reciprocity and the traditional understanding of formal equality is the following: Formal equality is best explained on a vertical plane as a relationship between the individual and the state. Each one of us as an individual is to be formally recognized by the state as an equal person. In Hegel, too, the very basis of the sphere of right is that each one of us is to be recognized as a formally equal person. In Hegel,

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however, the implicit emphasis is on the horizontal, internal relations and interactions between citizens, our stance vis-à-vis one another as distinct from our individual relation to the state. But Hegel also addresses the radical egalitarian aspirations implicit in the full development of the horizontal dimension of relation of reciprocity. These relations, in turn, guide us in our evaluation of any existing legal order. For Hegel, a system of law must meet certain conditions if it is to be consistent with the recognition of modern subjectivity. Legal obligation is only warranted if the law upholds the formal right of individuals to be beholden only to those norms whose cognitive significance they can grasp. Law must be objective and public; “in view of the right of self-consciousness it must be made universally known.” The form of modern law demands that the judge give reasons for her decision, which are an expression of the universal rather than of the particular interest of the opining judge: By taking the form of law, right steps into a determinate mode of being. It is then something on its own account, and in contrast with particular willing and opinion of the right, it is self-subsistent and has to vindicate itself as something universal. This is achieved by recognizing it and making it actual in a particular case without the subjective feeling of private interest; and this is the business of a public authority—the court of justice.

For Hegel, a crucial characteristic of a modern legal system is that the sovereign no longer has the power to declare what the law is without giving demonstrable reasons and without allowing the subjected parties a chance to respond; rather, that power is overturned once and for all. In this way, Hegel explicitly interjects the role of reason into a modern legal system. If a legal system is to respect personhood, it must do so by making laws accessible—that is, both publicly available and rationally understandable. The individual must, in other words, be able to know what to expect, so she can live in accordance with those expectations. The ideal of the rule of the law, then, stems from the legal recognition of personhood. Irrationality is identified with the former ability of the sovereign to change the law at will, so that the individual could neither know what was expected of her nor what her rights were against the state. She was subjugated to the will of the sovereign, not to her own will. The end of the subjugation of the individual to the sovereign opens the door for individual freedom and agency. The legal system in a civil society must recognize the legitimacy of

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individual agency by giving the accused subject some rights to a defense and a response to the charges against him. The procedures established in the law courts protect this right to a response as essential to individual agency: In court the specific character which rightness acquires is that it must be demonstrable. When parties go to law, they are put in the position of having to make good their evidence and their claims and to make the judge acquainted with the facts. These steps in a legal process are themselves rights, and their course must therefore be fixed by law. They also constitute an essential part of jurisprudence.

The extension to all alike of the obligation to obey the law is the basis, for Hegel, of a legal community of public officials, which is itself a necessary condition for the authority of the act of judging. The judge, in her public role as judge, must act as an “organ of the law,” not as her own person. When she decides what the law is, she speaks with the voice of an authoritative community. Her statement must be subsumed “under some principle; that is to say, it must be stripped of its apparent, empirical, character and exalted into a recognized fact of a general type.” Her opinion, in other words, must take the form of a legal judgment. As Gadamer explains the Hegelian position: It is the work of interpretation to make the law concrete in each specific case; i.e., it is a work of application. The creative supplementing of the law that is involved is a task that is reserved to a judge, but [she] . . . is subject to the law in the same way as every other member of the community. It is part of the idea of legal order that the judge’s judgment does not proceed from an arbitrary decision, but from this just weighing up by the whole.

The judge herself is not the community personified. Rather, the principles she elaborates that express the norms of the community embody the objective spirit, which cannot be reduced to a projected quasi-subjectivity. It is not that the judge personifies the community, but rather that she gives over her personality or her subjective will to her role as a public official who expresses the shared sittlich (ethical) commitments of the community. Hegel differs from Dworkin in subtle but extremely important ways. For Hegel, communal obligation does not conflict with justice. Instead, obligation is dependent upon the realization of the idea of freedom in the concrete, institutional structures of justice, which both enforce and limit the

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sphere of civil society. Justice is freedom actualized. Justice for Hegel is not, as it is for Dworkin, an abstract external theory or the subjective opinion of the individual. Instead, relations of justice are themselves a social practice, embodied in the conception and in the institutional structure of a modern, bourgeois democracy. Only a state whose institutions strive to actualize the relations of reciprocal symmetry can synchronize individual freedom with communal obligation. Hegel recognizes the validity of the impulse behind contractualist theories of justice. He understands how the insistence on the realization of certain hypothetical conditions of choice, if obligation to the state is to hold, protects the modern notion of individuality. Reciprocity within a legal system means that without the recognition of right, there is no duty. “Hence in this identity of the universal will with the particular will, right and duty coalesce, and by being in the ethical order a man has rights in so far as he has duties, and duties in so far as he has rights.” Freedom is no longer merely a projected ideal but rather a substantial reality in which reason has been determinatively actualized in the institutional relations that embody the norm of reciprocal symmetry. These relations allow the modern individual to come into the stage of history. As an “objective” set of institutions, the ethical order of the state or community stands over and against the individual. The substantial order, in the self-consciousness which it has thus actually attained in individuals, knows itself and so is an object of knowledge. This ethical substance and its laws and powers are, on the one hand, an object over against the subject, and from his point of view they are— “are” in the highest sense of self-subsistent being. . . . On the other hand, [ethical laws] are not something alien to the subject. On the contrary, his spirit bears witness to them as to its own essence.

With the achievement of Absolute Knowledge, the self-conscious recognition of the “‘I’ that is ‘We’ and the ‘We’ that is ‘I,’” the individual subject grasps how the state or community is the basis for the full realization of her own subjectivity. The individual comes to affirm the community “as in his own element which is not distinguished from himself.” This necessary moment of subjective affirmation separates the modern synchronization of the individual with the community from the simple identity of the citizen with her state, which Hegel associated with ancient Greek culture. The synchronization of the individual with her community is always a

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self-conscious reconciliation. The self-consciousness that arises out of mutual recognition is both a social achievement and, at the same time, the actual realization of individuality. The subjective moment of affirmation is essential to Hegel’s understanding of how ethical order is perpetuated. The ethical order is not simply there as the dull weight of positivity; rather it is there for us. Nor, however, can it be reduced to the accepted conventions of individuals. There are, as Dworkin reminds us, real social practices, which we interpret. The unity of subjective affirmation with the objective institutions of right embodies “mind living and present as a world, and the substance of mind thus exists now for the first time as mind.” Within Hegel’s own system, the distinction between actuality and positivity prevents the reduction of ethics to the perpetuation of order. On the interpretation of Hegel offered here, the institutions of freedom are not justified simply because they are there; instead they are legitimated because they are the very embodiment of the ideal of reciprocal symmetry. We are obligated to belong to the modern state only because it is a community of principle. From a Hegelian perspective, Dworkin’s ideal of integrity in the law is not self-sustaining; it is itself an expression—on the plane of abstract right—of relations of mutual recognition. The conditions that Dworkin associates with law as integrity, rational accountability, and fairness in application inhere in the very idea of relations of reciprocity. If law is to be publicly known and cognitively accessible, then the commitment to the elaboration of principles inherent in the ethical order—what Dworkin calls consistency in principle—is necessary. But if we are to avoid reducing justice to an external theory or to personal opinion, as Dworkin does, we must first elaborate the actual relations and institutions in which those principles inhere. It is not enough simply to appeal to rational coherence or consistency in principle; we must know what the principles are with which we are trying to be consistent. These principles, however, are not external; they are related to the actualized relations of reciprocity.

the ethical reality of sittlichkeit Hegel’s insistence on the reality of community can provide the philosophical basis for Dworkin’s argument that properties such as integrity, normally associated with the subject or self, can be embodied in communities. For Hegel, ethical order, or Sittlichkeit, is real objective spirit. Individuality cannot be separated from the social and the communal structures that spon-

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sor its flourishing. Mutual codetermination is not just an ideal; it is the reality of who we are as members of the state. We cannot completely sever the being of the individual from the reality of the community. If we are to value subjectivity and grapple seriously with the aspiration to individual freedom expressed in contractualist notions of the communal obligation, we must both counter atomistic views of subjectivity and defend the reality of community life. To accomplish this task successfully we need an account of subjectivity both as a social reality itself and as a narration of the objective spirit of cultural institutions understood as an “actress” on the stage of history. This is precisely the dialectic that Dworkin does not adequately explain. To reduce objective spirit to the voice of a single author, as Dworkin does with Hercules, undermines completely the idea that the unity of the many selves is achieved only through their self-conscious identification with the community. Furthermore, it undermines the idea that such an accomplishment is always an intersubjective and mediated experience. Hegel did not aspire to the full rationalization of any existing system of law. Legal interpretation involves a moment of singularity and contingency, which inevitably thwarts the aspiration to rational coherence. For Hegel, we must always distinguish between a philosophy of right and the actual practice of legal interpretation. As Adriaan Peperzak explains the Hegelian position: As a reality in time and place, the order of factuality is characterized by singularity (Vereinzelung). The factual is only that which is real here and now, and which in that sense is unique—occurring at only one time, in one place. . . . Considering the fact that contingent factuality is the opposite of the pure concept, but at the same time its dark inner lining, as it were, by which the concept delimits itself, factuality is also characterized by irrationality, appearance and contradiction. Left to itself it would sink into chaotic confusion and self-destruction. Only in so far as it partakes of the rational principle of spirit, does factuality not perish but rather realize rationality. In so far as the positivity of right involves an element of singularity and contingency, it also involves that inner contradiction. That is why Hegel defends as necessary the inconsistencies of every legal system to lawyers who want to hide them behind a strained coherence. (Footnotes omitted)

Here again we can see Hegel’s difference from Dworkin. Unlike Dworkin, Hegel does not strive after the strained coherence that results from collaps-

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ing the level of the philosophy of right into the actual interpretive practice of a mythical judge. At the same time, Hegel recognizes the reality of ideals and principles that do indeed guide the judges and lawyers, because they are embodied, if imperfectly, in the social practices we think of as law. As suggested earlier, our shared ethical order, or Sittlichkeit, is real in Hegel’s theory. In his insistence on the reality of our shared sittlich commitments, Hegel anticipated the Wittgensteinian challenge to the identification of ethical statements as “queer” entities. Our “reality of historical understanding,” our form of life, embodies ethical commitments as well as facts. The world of instituted meaning is our world. The assemblage of accepted uses and practices that constitutes a form of life and that precedes all intentionality and subjectivity gives us a sensible world and a world that makes sense. Within our form of life, including our legal context, there are standards of rationality to which we appeal in our day-to-day practice. For Hegel, those standards of rationality are embodied in actual institutions and can be made explicit in their objectivity. Legal interpretation takes place within the parameters of our ethical order, or Sittlichkeit. Law, for Hegel, is ethics. But law is not morality in the sense of the specific commitments of the individual conscience. It is the containment, if not the confinement, of legal judgment on a horizon of ethical understanding, which allows for the perpetuation of a potentially coherent narration of legal principles, irreducible to the mere opinion of the individual judge.

the ideal of reciprocal recognition The appeal to Sittlichkeit in and of itself, however, only explains the possibility of an intelligible ethical and legal order. In order to spell out the normative basis of a properly constituted community with a legitimate legal system, we need to look at the institutional and ethical content of Sittlichkeit, not simply affirm its existence. Such an affirmation would tell us only that ethical standards existed, but not necessarily that they were adequate to a modern conception of a democratic legal system. In Hegelian language, the actual would be collapsed into the existent. In the Philosophy of Right, Hegel gives us an institutional analysis of a properly constituted democratic state. A crucial aspect of this analysis is an account of the historical development of the sphere of abstract right, with its recognition of the legal person. As we have argued, this account locates the legitimacy of the sphere of abstract right in the realized relations of reciprocal symmetry. It is the realized

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relations of reciprocal symmetry that provide us with a rational limiting principle to guide legal interpretation. This rational limiting principle is rooted in Sittlichkeit, in an ethics in which we are embedded. In the result, we agree with Dworkin’s insight in Law’s Empire that we must be committed to elaborating the principles that are inherent in our social practices. However, we believe that the best way to make sense of these principles is to view them (as Hegel would) as embodied within the actual relations of reciprocal recognition on which any community of principle must be founded. Interpreting Dworkin through Hegel in this way provides us with at least a possible explanation of how an idealized “we” in a modern democracy might come to share a commitment to certain fundamental principles such as dignity, freedom, and equality. Only Hegel’s notion of Sittlichkeit can establish the conditions necessary for the law to have integrity in Dworkin’s terms.

3

Law’s Empire in South Africa

In this chapter, we draw out the various ways in which the theory of interpretation Dworkin develops in Law’s Empire can help us defend and think through the implications of some of the most important and challenging features of the South African Constitution, and the interpretation that those features have been given by the South African Constitutional Court. We begin by demonstrating that the interpretive guidelines that the Constitutional Court has laid down display all of the core features of interpretation as Dworkin sees it—that is, the court is committed to a mode of interpretation that (a) is faithful to the text it interprets, (b) seeks coherence between the different parts of that text, and (c) remakes the law in the image of the principles inherent within it. We go on to show that Dworkin is a useful ally in our quest to understand the full implications of section 39(2), which is one of the most unique and controversial provisions in the Constitution. Against some of the critics of section 39(2), Dworkin helps us to understand why the section imposes an unconditional obligation on courts to develop

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the common law in light of the values in the Bill of Rights, and indeed, the values of the Constitution more generally. Nevertheless, there are certainly limits to the ability of Law’s Empire to illuminate South Africa’s Constitution, particularly given the horrific history against which the Constitution stands, but which nevertheless continues to pervade the lives of a divided society in all kinds of material and symbolic ways. As we discuss toward the end of this chapter, wearing Dworkin’s rosecolored glasses to write over this history—to see it in its best light—would be morally perverse and would obscure much of what South Africa must still come to terms with in its transformation.

the teleological interpretation of the south african constitution To understand the importance of Dworkin’s work for theorizing the proper approach to interpreting the South African Constitution, let us briefly recap Dworkin’s view of the three core features of interpretation and apply these in the context of constitutional theory. First, a good interpretation of a constitution must promote the integrity of the Constitution; that is, the interpretation must render the component parts of a constitution consistent with one another, in so far as this is possible. Thus, although Dworkin more or less follows Wittgenstein’s central insight in Philosophical Investigations—that words are essentially just ink marks on a page which only become meaningful through the activity of interpretation—the text (and more broadly, the history of a community’s political decisions) has to play at least enough of a role so that the judge can sincerely consider her judgment to be an interpretation of that text or those decisions, rather than as an interpretation of something else completely. In other words, the text of a constitution has to place enough of a constraint on the interpretive exercise so that an interpretation can plausibly count as an interpretation of a constitution, rather than as an interpretation of a book or a play. Moreover, the text must play enough of a constraining role so that the interpretation is an interpretation of that constitution, rather than of a different constitution. This constraining role is what Dworkin describes as fidelity to the past political decisions of our community. As we have indicated, there is a tendency for this insight to reinscribe positivism in Dworkin’s theory of law. However, the common sense in this

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view is that interpretation cannot exist in a vacuum—there must be something there for an interpretation to work on. Indeed, this insight helps us to understand why constitutional interpretation is necessarily a parochial enterprise. Whether an interpretation is justified or valid depends in large part on the background of social, political, and constitutional arrangements of the particular country in question. Constitutions are very different from one another, countries have diverse bodies of constitutional law and constitutional practice, and there are very different understandings from place to place about the role of the constitution in life and law. A theory of the correct method for interpreting a constitution must be sensitive to this, as Dworkin’s is. The second core feature of interpretation in Dworkin’s theory is that a good interpretation of a particular part or provision of a constitution necessarily considers and interprets other parts or provisions of the constitution, especially if we assume that a particular interpretation is part of and contributes to a broader, shared practice of interpreting the constitution as a whole. Thus, just as in Dworkin’s chain novel, an interpretation of a constitution must make sense of all its plot lines, even if at times it emphasizes some narratives over others. Importantly, then, a constitution cannot be read clause by clause, nor can any particular clause be interpreted without an understanding of the broader constitutional framework. The third, and undoubtedly most important, feature of a sound constitutional interpretation in Dworkin’s sense is one that takes place against the purposes and values of the constitution, that is, against conceptions of what makes the constitution valuable. To recall Dworkin: I mean that an interpretation is by nature the report of a purpose; it proposes a way of seeing what is interpreted—a social practice or tradition as much as a text or painting—as if this were the product of a decision to pursue one set of themes or visions or purposes, one “point,” rather than another. This structure is required of an interpretation even when the material to be interpreted is a social practice, even when there is no historical author whose historical mind can be plumbed.

It is Dworkin’s insistence that purposes underlie our legal practices (regardless of anyone’s intent), and that those purposes are central to our ability to give meaning to those legal practices. Giving meaning to legal practices offers us such a powerful critique of any form of originalism—as definitional of the meaning of a constitutional phrase or even legality itself—that

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it reduces law to a kind of “pure fact” of a causal chain, in an exercise of pre-Wittgensteinian thinking about language as reducible to an originating past. With these three features of interpretation, Dworkin offers us a coherent and comprehensive defense of precisely the kind of holistic, teleological interpretation that the Constitutional Court has already rightly adopted in respect of the South African Constitution. First, as Dworkin would have it, the court’s interpretive approach pays adequate attention to the text of the Constitution itself, and to South Africa’s unique political history more broadly. As Justice Kentridge stated in S v. Zuma: While we must always be conscious of the values underlying the Constitution, it is nonetheless our task to interpret a written instrument. I am well aware of the fallacy of supposing that general language must have a single “objective” meaning. Nor is it easy to avoid the influence of one’s personal intellectual and moral preconceptions. But it cannot be too strongly stressed that the Constitution does not mean whatever we might wish it to mean. . . . [E]ven a constitution is a legal instrument, the language of which must be respected. If the language used by the lawgiver is ignored in favour of a general resort to “values” the result is not interpretation but divination.

The moral value of this “conserving” aspect of interpretation was recognized by Justice O’Regan in the Bertie van Zyl case: “It is indeed an important principle of the rule of law, which is a foundational value of our Constitution, that rules be articulated clearly and in a manner accessible to those governed by the rules. A contextual interpretation of a statute, therefore, must be sufficiently clear to accord with the rule of law.” In support of this contention, she cited the following passage from the court’s judgment in Hyundai: On the one hand, it is the duty of a judicial officer to interpret legislation in conformity with the Constitution so far as this is reasonably possible. On the other hand, the legislature is under a duty to pass legislation that is reasonably clear and precise, enabling citizens and officials to understand what is expected of them. A balance will have to be struck as to how this tension is to be resolved when considering the constitutionality of legislation. There will be occasions when a judicial officer

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will find that the legislation, though open to a meaning which would be unconstitutional, is reasonably capable of being read “in conformity with the Constitution.” Such an interpretation should not, however, be unduly strained.

However, the court has also stressed that the Constitution must be interpreted in a way that is generous and purposive, precisely because adopting a formalistic, “ordinary language” approach to the Constitution will restrict the Constitution’s transformative potential. A generous approach is concerned with giving the Constitution and the rights within it as broad a reach as possible. The nature of a purposive approach, on the other hand, was described by the court in the famous words of Lord Wilberforce: [J]udges do not go by the literal meaning of the words or by the grammatical structure of the sentence. They go by the design or purpose which lies behind it. When they come upon a situation which is to their minds within the spirit—but not the letter—of the legislation, they solve the problem by looking at the design and purpose of the legislature—at the effect it was sought to achieve. They then interpret the legislation so as to produce the desired effect. This means they fill in gaps, quite unashamedly, without hesitation. They ask simply: what is the sensible way of dealing with this situation so as to give effect to the presumed purpose of the legislation. They lay down the law accordingly.

The court also has explained the nature of purposive interpretation by reference to decisions of the Canadian Supreme Court, which adopted a similar approach to constitutional interpretation: [T]he proper approach to the definition of the rights and freedoms guaranteed by the Charter [is] a purposive one. The meaning of a right or freedom guaranteed by the Charter [is] to be ascertained by an analysis of the purpose of such a guarantee; it [is] to be understood, in other words, in the light of the interests it was meant to protect. In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. (Emphasis added)

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In line with this approach, the Constitutional Court has held that the Constitution “must not be construed in isolation, but in its context, which includes the history and background to the adoption of the Constitution, [and] other provisions of the Constitution itself.” The court therefore adopts a teleological approach to interpretation, consistent with Dworkin’s own view of interpretation set out earlier in this chapter, in which the constituent parts of the Constitution are interpreted so as to cohere with one another, and to further the purposes of the Constitution as a whole. Furthermore, the Constitutional Court is conscious that its interpretive task must be understood in the light of South Africa’s particular history and its present conditions, as well as in the light of the unique nature of the South African Constitution itself: In some countries, the Constitution only formalizes, in a legal instrument, a historical consensus of values and aspirations evolved incrementally from a stable and unbroken past to accommodate the needs of the future. The South African Constitution is different: it retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of that part of the past which is disgracefully racist, authoritarian, insular and repressive and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos, expressly articulated in the Constitution. The contrast between the past which it repudiates and the future to which is seeks to commit the nation is stark and dramatic. . . . Such a jurisprudential past created what the postamble to the Constitution recognized as a society “characterized by strife, conflict, untold suffering and injustice.” What the Constitution expressly aspires to do is to provide a transition from these grossly unacceptable features of the past to a conspicuously contrasting “future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of color, race, class, belief or sex.”

In Mhlungu, Justice Sachs directly addresses the relationship between this history and constitutional interpretation in South Africa: We are a new court, established in a new way, to deal with a new Constitution. . . . We need to develop an appropriately South African way of dealing with our Constitution, one that starts with the Constitution itself, acknowledges the way it came into being, its language, spirit, style

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and inner logic, the interests it protects and the painful experiences it guards against, its place in the evolution of our country, our society and our legal system, and its existence as part of a global development of constitutionalism and human rights.

Importantly, he added that: the question of interpretation [is] one to which there can never be an absolute and definitive answer and that, in particular, the search of where to locate ourselves on the literal/purposive continuum or how to balance out competing provisions, will always take the form of a principled judicial dialogue, in the first place between members of this court, then between our court and other courts, the legal profession, law schools, Parliament, and, indirectly, with the public at large.

As these last three quotes indicate, it is of great interpretive importance that the Constitution was expressly intended to usher in a substantive legal revolution—a moral regeneration of law (including the private law) so as to build a harmonized jurisprudence derived from and justified in terms of the principles of political morality espoused by the Constitution. This purpose is part of what makes the Constitution valuable, and any justifiable interpretation of the Constitution must make sense of and further that purpose. Furthermore, as this last quote also tells us, the responsibility for developing a just and coherent constitutional jurisprudence rests not just with courts but also with legal academics, who must participate in a constructive dialogue with courts and other persons and institutions about which interpretations of the Constitution will best realize its transformative purpose.

the interpretive mandate of section 39(2) Section 39(2) of the Constitution provides: “When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.” Section 39(2) is one of the cornerstones of South Africa’s constitutional framework—indeed, it is one of the primary tools through which the Constitution is intended to do its revolutionary work, by requiring that in every legal dispute concerning the application of legislation, the common law

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or customary law (which is effectively every possible legal dispute), courts must, of their own accord, interpret and develop the law in accordance with the values enshrined in the Bill of Rights. The interpretation of section 39(2) that we advance here is the one given to the section by the Constitutional Court in its groundbreaking decision in Carmichele v. Minister for Safety and Security and Others, where the court held as follows: It needs to be stressed that the obligation of courts to develop the common law, in the context of the section 39(2) objectives, is not purely discretionary. On the contrary, it is implicit in section 39(2) read with section 173 that where the common law as it stands is deficient in promoting the section 39(2) objectives, the courts are under a general obligation to develop it appropriately.

The court held further that: Our Constitution is not merely a formal document regulating public power. It also embodies, like the German Constitution, an objective, normative value system. . . . The influence of the fundamental constitutional values on the common law is mandated by section 39(2) of the Constitution. It is within the matrix of this objective normative value system that the common law must be developed.

Thus, for example, in any delictual action requiring an assessment of wrongfulness, a court must determine what is wrongful by reference to the overall scheme of the Bill of Rights. Or, in another example, when two private parties are involved in litigation concerning the interpretation of a particular piece of legislation, a court is mandated to give that legislation an interpretation that is consistent with the spirit, purport, and objects of the Bill of Rights. It is therefore Section 39(2), together with section 8 (which provides for the direct horizontality of the Bill of Rights), part of what makes the South African Constitution unique in the world. It is these two sections that govern the transformative possibility that all laws left on the books must be challenged or developed in accordance with the ideals in which the Constitution is grounded. Often we hear critics say that the Constitution then leaves nothing outside of its scope, as though it is a grotesque and insatiable machine bent on devouring everything around it. Needless to say, we

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strongly disagree with this argument, and we have little doubt that Dworkin would too. Sections 8 and 39(2) have, and were intended to have, profound implications for the South African private law. Indeed, the Constitution could not achieve its revolutionary work if it contented itself with the erasure of apartheid legislation (now mostly off the books), while it abandoned millions of poor black South Africans to strive for a decent standard of living on their own and in the shadow of the law, whose protection of the free market served only to shore up the gross imbalances in economic, social, and political capital that apartheid left in its wake. Sections 8 and 39(2) demand that we be returned again and again to the ethical ideals that are supposed to undergird the transformation to a new society. These two sections constantly take us back to ideals, and those ideals are used to transform the law that has remained on the books, but also the false idea that there is some kind of free space in civil society that is unreachable by ideals because it is the so-called place of the free market, a street fight writ large in which the last man standing takes all. Simply put, these sections together deny that there is such a thing called a civil society that is beyond the reach of the critique inherent in the ideals that the Constitution aspires to represent. Of course, it is an aspiration: ideals, by definition, are never fully realized because they are hypothetical experiments in the imagination. But these two sections are the vehicles through which the aspirational ideals of the Constitution work themselves real through the law. Indeed, the very significance of the Carmichele decision, and why it is rightly viewed as a landmark judgment, is that it recognizes and gives substance to the Constitution’s demand for a radically transformed common law. To that end, the Carmichele judgment states that courts are under a “general obligation” to develop the common law whenever it falls short of constitutional demands. That obligation is not discretionary, and arises whether or not the litigants themselves raise constitutional issues. Carmichele therefore places a strict and extensive obligation on the courts to develop the common law in accordance with the Constitution. This is how the judgment was interpreted in K: “The obligation imposed upon courts by section 39(2) of the Constitution is thus extensive, requiring courts to be alert to the normative framework of the Constitution not only when some startling new development of the common law is in issue, but in all cases where the incremental development of the rule is in issue.” This is also how the judgment was interpreted recently by Justice Yacoob in Everfresh:

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A court should always be alive to the possibility of the development of the common law in the light of the spirit, purport and objects of the Bill of Rights. The development of the common law would otherwise be no more than a distant dream. A court should always be at pains to discover whether the development of the common law is implicit in a case. If, in the particular circumstances, it appears to a court that section 39(2) is implicitly raised and that the common law might have to be developed, that court has no choice but to embark upon that inquiry.

It is clear then that the final Constitution is intended to have an extensive impact on the common law. Indeed, the significant jurisprudential contribution of Carmichele and K is that they embody precisely this transformative impact. Therefore, whenever a court is dealing with the common law, it must test the common law against the demands of the Bill of Rights. If the common law falls short of those demands, it must be developed. Only that interpretation of section 39(2) can deliver the Constitution’s promise of a legal system founded on dignity, freedom, and substantive equality between individuals. Of course, not everybody agrees with us. A particularly fierce critic of the court’s section 39(2) jurisprudence is Professor Anton Fagan, who has argued against the court’s approach to constitutional interpretation in a series of papers concerned foremost with the law of delict. According to Fagan, the Constitutional Court has misinterpreted the Constitution in several important ways. Most gravely, Fagan has argued that section 39(2) does not place an obligation on courts, in each case before them, to develop the common law in accordance with constitutional values. As Fagan puts it, the fact that a development of the law will promote constitutional values is neither a necessary nor sufficient condition for developing the law in that way. An engagement with Fagan’s views on section 39(2) is particularly germane to our present purpose, since he relies extensively on Dworkin’s theory of law as integrity to defend his attacks on the section. Fagan asks: “Can s 39(2) of the South African Constitution be justified by Ronald Dworkin’s notion of ‘political integrity’?” Not only does Fagan conclude, remarkably, that section 39(2) “cannot, in fact, be justified on the basis of either justice or fairness,” but also that it cannot be justified on the basis of integrity. If it is true, he says, that the bulk of South African law is inconsistent with values in the Bill of Rights, then section 39(2) does not promote the integrity of South African law. Instead, it undermines the integrity of the law by infus-

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ing it with new rules and principles (human rights) that contradict what the majority of the rules really stand for (oppression). Anyone who is familiar with Ronald Dworkin’s work must find it quite jarring to see his theory of law as integrity deployed to advance this conclusion. Dworkin was a tireless champion of the principles of dignity, equality, and freedom, whose life’s work was nothing if not a sustained attempt to see these principles remake the body of American law he thought substantially unjust. His theory of law sought to provide a justification for making the law more just, by advancing the law in accordance with principles that showed it in its best light, not as a justification for resisting human rights in the name of precedent. Fagan’s argument warps Dworkin’s theory precisely because Fagan sees the Constitution as standing outside of and apart from the body of South African law. To ask whether section 39(2) “can be justified” by Dworkin’s notion of integrity fundamentally misunderstands the role of integrity in Dworkin’s work. It is the hypothetical development of a new legal rule that is supposed to be “justified” by reference to the principles underlying the existing body of law. Section 39(2), as already part of the existing body of law, is not what needs to be justified; rather, it is part of what does the justifying. Integrity is not, as Fagan would have it, a tool by which we judge whether any individual existing legal rule sits well with the rest. Integrity is something we progressively achieve each time we are asked to add a new part to our legal story, by telling the best version of the story that has gone before. Once the substantive revolution took place in South Africa, ushering in, almost overnight, a foundational change in the South African legal system, and injecting entirely new principles into the system that often expressly contradicted what was already there, the story of South African law could not simply keep going along as it did before. The narrative of the novel has changed so dramatically in this new chapter that it makes no sense merely to labor on by trying to make sense of what happened before for its own sake. The next authors in the chain—judges, practitioners, and academics in the new South Africa—cannot sensibly further the story without according overwhelming priority to the role of the Constitution. That includes giving pride of place not only to the Bill of Rights, which 39(2) advances, but also to 39(2) as such, itself one of the provisions of the new Constitution. Section 39(2) is now part of the history of legal decisions that we are trying to interpret and reconstruct.

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There is, of course, a trivial sense in which Fagan is right. There is no question that an attempt to interpret the body of preconstitutional law as underpinned by a set of moral principles that could justify the judicial creation of a new rule like 39(2) would not have integrity. It could not have integrity because, as we discuss later in this chapter, it would be entirely dishonest (whatever else it may achieve). In this weak sense of integrity as homogenization, section 39(2) does not promote the integrity of South African law. It certainly does undermine the coherence that would otherwise be obtained by a body of law infused by decades of systemic racial oppression. The fact that section 39(2), in each new legal decision, breaks that coherence in the name of a new incremental coherence with the Bill of Rights is precisely why section 39(2) does promote the integrity of South African law in Dworkin’s fuller sense of the term. For Dworkin, coherence is not about simply referencing all the previous characters of the book in your new chapter—it is about according them the appropriate weight, judged against not only what we think the book itself is supposed to be about, but against what we take books to be about in general. In the legal context, not all laws are to be given the same weight in our justificatory exercise. Some laws, and the principles they enshrine, count more than others—which ones these are turns on the best moral argument about what purposes inhere in the body of law in question, and about the very purposes of law itself. Thus, for any new legal decision to have integrity in Dworkin’s sense, it cannot simply seek to make sense of the body of existing precedent that has been laid down in the past, perhaps, as an aside, paying lip service to constitutional rights as though there are just some laws among others. To have integrity, a new legal decision must accord a primary role to the rights in the Bill of Rights. We thus miss the point of our story if we ask, as Fagan does, whether the Constitution coheres with the body of existing law. The point now is to make the existing law cohere with the Constitution. Consistency with the law of apartheid is not part of telling a coherent story of South African law now. As Dworkin puts it: Is integrity only consistency (deciding like cases alike) under a prouder name? That depends on what we mean by consistency or like cases. If a political institution is consistent only when it repeats its own past decisions most closely or precisely in point, then integrity is not consistency; it is something both more and less. Integrity demands that the public

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standards of the community be both made and seen, so far as this is possible, to express a single, coherent scheme of justice and fairness in the right relation. An institution that accepts that ideal will sometimes, for that reason, depart from a narrow line of past decisions in search of fidelity to principles conceived as more fundamental to the scheme as a whole.

On this view, section 39(2) is far from lacking integrity. Indeed, it is the very embodiment of the interpretive obligation that Dworkin says is demanded by the nature of law itself: the obligation to develop the law to conform to the principles that best justify the existing body of law. Fagan’s argument is not merely a “plain” reading of section 39(2), as he would put it. Instead, his argument is better cast as a normative argument against the influence of the Constitution on the common law, and more generally as an argument against precisely the kind of holistic and teleological interpretation we advocate in this book. Interestingly, however, Fagan avoids that kind of express normative argument about whether constitutional influence on the private law is a good or a bad idea. Rather, Fagan divorces the question of the proper interpretation of the Constitution from questions about the moral and political goals that different interpretations achieve. We part ways with Fagan precisely because we, like Dworkin, do not think these questions can be separated—rather, we believe that questions of political morality are fundamental to constitutional interpretation. Whether the Constitutional Court’s interpretation of section 39(2) is right or wrong depends on a moral justification centered on a proper reading of that section in the context of other relevant constitutional provisions and the Constitution’s fundamental purposes. In this regard, we have argued that the Constitutional Court’s interpretation of section 39(2) is internally coherent, harmonizes with the rest of the constitutional text, and is crucial to furthering the important transformation the Constitution seeks to achieve in the common law.

the limits of law’s empire Despite the important ways in which Dworkin’s theory of constitutional interpretation lend support to the important work of the South African Constitutional Court, there are certainly limits to the merits of Dworkin’s theory

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(at least as it exists in Law’s Empire) in any postcolonial setting. In Law’s Empire, Dworkin summarizes his view of political integrity as follows: The adjudicative principle of integrity instructs judges to identify legal rights and duties, so far as possible, on the assumption that they were all created by a single author—the community personified—expressing a coherent conception of justice and fairness. . . . According to law as integrity, propositions of law are true if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community’s legal practice.

Thus, Dworkin asks judges to decide whether legal practice is seen in a better light if we assume that the community has accepted a particular principle. As we have argued above, integrity in Law’s Empire is explicitly premised on an idealized community, best understood through Hegel’s conception of Sittlichkeit. Dworkin’s uneasiness that any appeal to the “should be” constitutes the imposition of an external standard of justice or morality underlies his method of interpreting precedent through rose-colored glasses. The methodology directs us to reconstruct a narration of the past in light of the best possible story we can tell of the embodied purposes expressed in a community of principle. Unlike Dworkin’s version of the pragmatist, the judge who understands law as integrity must not create interpretive principles, but must only reinterpret in light of principles that are actually there. Integrity is demanded of us only insofar as it relates to a past, if a principled past. But what if we find that the past does not live up to principles of justice or fairness (such as a judge in contemporary South Africa is certain to find)? In such an instance we must break with the past. Dworkin’s critique of legal pragmatism insists that this break must be disguised as a restatement of what actually was, rather than in the form of a reconstruction of what might have been and what now should be, given our changing interpretations of embodied principle and ethical ideals. Which approach is more in danger of falling into dishonesty—legal pragmatism, or an interpretive reconstruction of principles that were never really there? There is another danger—perhaps even more serious than the potential for dishonesty—inherent in disguising the break with the past, although alone this would not seem to promote integrity in the individual judge: the critical evaluation of precedent is undermined.

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The judge’s failure to exercise the responsibility to critique and to reject explicitly the accepted institutionalized meaning given to past principles may undermine the aspiration to be a community of principle. It may better serve the aspiration to be a community of principle to condemn a given area of law as irrational and incoherent rather than to pretend that it can be read to meet these standards. By condemning a particular justification of principle the judge replaces not only the principle but also the argument. What is to be gained cannot necessarily be calculated in terms of an actual shift in legal result because the gain is in and through the rhetorical elaboration of the competing principle itself. The rhetoric of a legal opinion constitutes the principle the decision justifies. The so-called result in a legal decision, in other words, cannot be separated from the argumentation for that decision as long as we correctly conceive of an opinion not just as a holding but as an argument for principles. If the legal opinion is conceived as an argument and justification for principle, then we cannot say that two decisions that develop different arguments can yield the same result. Law, in other words, cannot be reduced to a cause-and-effect relationship: the cause, the holding of the case; the effect, the future cases engendered by the holding. What is engendered by the opinion is the justification of principle through argument. If law is both the enunciation and justification of principle, it also entails the explicit critique, and indeed rejection, of past arguments and past principles, if they are found to be unjustifiable. Dworkin’s rose-colored glasses undermine the power of criticism, limit our vision of possible reconstructive transformation, and potentially ignore the suffering of those affected by the interpretation. The suffering of others introduces an irreducible exteriority into the process of interpretation. The irreducible exteriority, or the inevitable residue of materiality in history, does not stand completely outside of interpretation. Yet, that being said, there is a limit implicit in the finitude of human life that cannot, with a sweep of the hand, be interpreted away. The example we have just given should make this point with enough force. We can, of course, continuously reinterpret the “separate but equal” principle. But we cannot give back the chance to have an equal education to those who have forever lost that chance. Why should we put our history of racist exclusion into the best light? The real suffering imposed by Plessy can only be respected if we take off our rose-colored glasses and honestly face the harm done by the legal system through the perpetuation of an unjustifiable principle. We want to turn to Walter Benjamin to underscore our point. Benjamin

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has shown us how certain historical projects, even those that were purportedly rooted in progressive movements like the communist parties of the Third International, have tragically become additions to the pile of wreckage seen by the angel of history. As Benjamin recounts, the angel has spread its wings and is looking toward us “yet spies out of the corner of its eye a tragedy of the past that cannot be ignored.” It is indeed a catastrophe of the highest magnitude, and we need only think of the horrors of colonization to confront the magnitude of that suffering. This angel, which allegorizes the weak messianic power inherent in all human beings, is literally blown away by the very force of the pure ruin of the past, which lacks any reason or logic that we attempt to impose on it through history. The storm irresistibly propels the angel into the future while its back is turned, as the pile of debris grows skyward, and this storm, Benjamin tells us, is what we call “progress.” Progress can never be a simple reinvention of the old, or some notion of a pure future uncontaminated by the debris. Thus we are given the ethical task of historicizing tragedy with the promise of being aligned with those who usher forward the next coming ethic, and yet we must do so by attending to the ailments needing repair in the previous generation that have categorically been thrown out of history, and yet are its basis as debris. Benjamin shows us that we must confront the debris of the horrifying realties of what in South Africa Terreblanche has named unfree black labor. If we simply try to wipe out history, as if there was an unmediated purity to which we could return, we do not pay heed to the debris and catastrophe left in the wake of capitalism, imperialism, and colonialism. So we must go forward, but forward cannot be any cheery notion of progress if it simply seeks to eliminate the history of the bloody past. No constitutional government, no revolution, no attempt to build a society can only look forward. It must confront what Paget Henry calls “vertical revolution,” which demands that we confront the full traumas of colonization as well as the armed struggle in order to transform it, if there is to be a future that is not going to be pulled back into disavowal of the catastrophic past that has actually materialized in the debris made up of bloodied bodies. No matter what kind of constitution we have, it will never be able to fully cover or erase the materiality of history and the exteriority of suffering. That constitutions fail in this sense is not an argument against constitutionalism, but only a constant reminder that revolutions and revolutionary governments must always be open to change, change rooted in the constitutive

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power of the people who formed the constitution in the first place. Reality, including constant struggles for transformation, can never be reduced to law, which is all to the good. But that does not mean that constantly seeking to reform a constitution in accordance with its ideals is not a worthwhile task. However, even if we do not think the rose-colored glasses method can be justified, we can grasp the insight that promotes Dworkin’s belief in its validity. His central point returns to the inevitable involvement of interpretation in law: People say that conservative justices obey the Constitution while liberal ones try to reform it according to their personal convictions. We know the fallacy in that description. It ignores the interpretive character of law. Justices who are called liberal and those who are called conservative agree about which words make up the Constitution as a matter of pre-interpretive text. They disagree about what the Constitution is as a matter of post-interpretive law, about what standards it deploys for testing official acts. Each kind of justice tries to enforce the Constitution as law, according to his interpretive judgment of what it is, and each kind thinks the other is subverting the true Constitution. So it is useless as well as unfair to classify justices according to the degree of their fidelity to their oath.

Dworkin recognizes that, because of the normative character of legal interpretation, the judge must engage in the process of reconstruction, which is prospective as well as retrospective. Yet, at the same time, Dworkin wants to insist that the very basis of the rule of law rests on the recognition of the precedence of the past over both the present and the future. According to Dworkin, this insistence on the precedence of the past is what distinguishes law as integrity from legal pragmatism. However, Dworkin is not entirely comfortable with the conclusion that follows from his own recognition that the past of precedent is not simply there for us to recollect, but demands an interpretation if it is to be made present. The rightful conclusion from this insight, which Dworkin does not draw (at least not in Law’s Empire), is that without an original anteriority to which we can appeal directly, the law and legal ideals can never simply be revealed. They are always made, in the sense that they enunciate the “should be” inherent in the justification for a given interpretation of the principles and ethical ideals embodied in an area of law. It is not, as Dworkin would have it, that legal interpretation is both

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prospective and retrospective, but rather that the very process of recollection is itself prospective, in that it implies a promise to guide our conduct in the future in accordance with the reevaluation of the “should be” inherent in the “might have been.” Yet, because we are always in a particular historical context and community, we transform our world here with it. But the future orientation of the promise of law implicit in the enunciation of the “should be” found in the reinterpretation of principle does not, in the end, mean that we can pretend that things were completely different than they were. Continuity in legal interpretation is always continuity in principle in Dworkin’s sense. A legal verdict is a creative supplement to the text upon which it relies, which once again brings meaning of the text to life by telling us how we should guide our conduct in the future. The reconstruction of principles to address the questions with which we are confronted arises not out of a vacuum, but through the potential of the “might have been,” which always remains in our historical understanding. The very statement of what the law is in Dworkin’s community of principle implicates the “should be.” This is so because it depends on a justification of a particular interpretation, since there can be, as Dworkin reminds us, no pure positive statement of what the law is. The introduction of the materiality of history through the recognition of the suffering of others belies the pretense that the horror of history can simply be read away. As we have already indicated, we do not think that any form of a Rechtsstaat can ever bring us together in some kind of higher unity, allowing us to hail our historical progress without paying heed to the terrible tragedy of history. While Hegel gives us a philosophical historicism that certainly confronts the negativity of history, that historicism ends on a happy note in the creation of the Euromodern nation-state. And while this certainly yields a form of constitutionalism, it is not a form that would be adequate to a constitution in the global South. Part of the reason for this inadequacy is precisely because there are complex forms of belonging in African nation-states to which the Euromodern Constitution cannot be faithful, and because of what we are calling, following Benjamin, the exteriority of suffering. There can be no idealized “we” in a country such as South Africa, where the ethical foundations of the community have been torn asunder by the ravages of colonialism and apartheid. Bearing in mind that any principle attributed to a community—as embodied in a set of statutes and precedents—must show those statutes and precedents to have moral value, to what degree can one say that the bulk of South African legal rules ac-

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cepts particular principles, or demonstrates moral values? Surely, insofar as the bulk of South African law which exists today was developed within and heavily influenced by a comprehensive system of racialized oppression, one cannot meaningfully attribute any shared principles to some idealized community, at least not principles which can be morally defended. In fact, the very attempt to view this bulk of law in its best light is perverse. And yet as we have also argued, there can be no constitutional project within a reconstituted nation-state without an idealized “we.” How this idealized “we” can ever be part of decolonization is one of the most burning questions of our time, and in the case of South Africa, this question would bring us back to the complex debates over uBuntu to even attempt to answer it. As we wrote earlier, our project in this book is more limited, as we are focusing on a rich interpretation of Ronald Dworkin’s whole body of work to illuminate the potential of certain key aspects of the current Constitution. Dworkin himself was pessimistic about the applicability of Law’s Empire in cases of revolution. In a keynote address he delivered at the University of Cape Town in 2004, he stated: Integrity requires justification and that justification requires us to say that we make the legal system better by understanding that it is organised around a central group of ideas. How does this relate to bad or evil legal systems, like the apartheid legal system? Such a legal system is one in which the process values that we are drawn to respect could be respected only at the cost of assigning principles to that legal system which are wholly disreputable principles. When that is the best we can do, then, in my view, legality has nothing further to offer us. Then it is a time for revolution, it is a time for drastic measures, because we have reached a point at which legality can no longer serve.

Indeed, in the use of his analogy of the chain novel, in which a subsequent writer has to write his new chapter on the basis of what has already been written, Dworkin has the following to say: But the interpretation he takes up must nevertheless flow throughout the text; it must have general explanatory power, and it is flawed if it leaves unexplained some major structural aspect of the text, a subplot treated as having great dramatic importance or a dominant and repeated metaphor. If no interpretation can be found that is not flawed in that way, then the chain novelist will not be able fully to meet his assign-

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ment; he will have to settle for an interpretation that captures most of the text, conceding that it is not wholly successful. Perhaps even that partial success is unavailable; perhaps every interpretation he considers is inconsistent with the bulk of the material supplied to him. In that case he must abandon the enterprise, for the consequence of taking the interpretive attitude toward the text in question is then a piece of internal scepticism: that nothing can count as continuing the novel rather than beginning anew.

Although we are critical of Dworkin’s Law’s Empire, we need to underscore two important points. First, Law’s Empire can be decisively used to defend the integrity of the current Constitution, and cannot be used, without distorting Dworkin, to attack the Constitution as Anton Fagan does. Second, as we will see, Dworkin moves form his notion of integrity to his two principles of dignity to ground a properly constituted community in Hegel’s sense. We turn now to Dworkin’s later work, as this can help us think about the central place of dignity in the South African Constitution.

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In Chapter 2, we ventured a reading of Dworkin through Hegel because we are worried about a particular problem: Are we not better off ethically and morally if we admit that past precedent cannot be justified on the basis of a “rose-colored glasses” interpretation of what it meant; if we admit that it cannot be interpreted through the principles of a community that was not actually there? However, Dworkin’s work has developed beyond this appeal to an actual community of principle, and he has now adopted a Kantian-inspired defense of dignity as the best possible philosophical framework for law, which is to be understood through the aspirational ideal of integrity. Clearly, Dworkin has been moving closer and closer to an interpretation of Kant from the time he wrote Law’s Empire, and we wish to follow the richness in the development of his thought from Justice in Robes to Justice for Hedgehogs. But before we begin with that journey, we want to be as fair as we can to H. L. A. Hart, who indeed worried about the exact problem we just described.

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hart’s postscript In the postscript to The Concept of Law, one justification Hart gives of his own narrow conception of law is precisely that it leaves open moral criticism on law as it actually is. To quote Hart: What then of the practical merits of the narrow concept of law in moral deliberation? In what way is it better, when faced with morally iniquitous demands, to think “This is in no sense law” rather than “This is law but too iniquitous to obey or apply”? Would this make men more clear-headed or readier to disobey when morality demands it? Would it lead to better ways of disposing of the problems such as the Nazi regime left behind?

In the postscript, Hart rejects at least three of Dworkin’s criticisms. We review his response to those criticisms, as they provide a basis for analyzing Dworkin’s response to them in Justice in Robes. First, Hart argues that he is not using a criterial concept of law, and therefore Dworkin’s criticism of his bewitchment by the semantic sting is incorrect. To quote Hart: Though in the first chapter of Law’s Empire I am classed with Austin as a semantic theorist and so as deriving a plain-fact positivist theory of law from the meaning of the word “law,” and suffering from the semantic sting, in fact nothing in my book or in anything else I have written supports such an account of my theory. Thus, my doctrine that developed municipal legal systems contain a rule of recognition specifying the criteria for the identification of the laws which courts have to apply may be mistaken, but I nowhere base this doctrine on the mistaken idea that it is part of the meaning of the word “law” that there should be such a rule of recognition in all legal systems, or on the even more mistaken idea that if the criteria for the identification of the grounds of law were not uncontroversially fixed, “law” would mean different things to different people.

As Hart goes on to explain, he is not even trying to explain law on that level of abstraction, but is offering instead a sociological understanding of the practice of law within a legal system. Second, Hart argues against Dworkin’s idea that he is a plain-fact positivist, arguing instead that he is a soft positivist and that Dworkin is therefore

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wrong to argue that the rule of recognition, as Hart defends it, can only exclusively deal with the plain facts of pedigree matters (understood as the manner of law creation, adoption, and change). To quote Hart as he defines soft positivism against plain-fact positivism: Dworkin in attributing to me a doctrine of “plain-fact positivism” has mistakenly treated my theory as not only requiring (as it does) that the existence and authority of the rule of recognition should depend on the fact of its acceptance by the courts, but also as requiring (as it does not) that the criteria of legal validity which the rule provides should consist exclusively of the specific kind of plain fact which he calls “pedigree” matters and which concern the manner and form of law-creation or adoption. This is doubly mistaken. First, it ignores my explicit acknowledgement that the rule of recognition may incorporate as criteria of legal validity conformity with moral principles or substantive values; so my doctrine is what has been called “soft positivism” and not as in Dworkin’s version of it “plain-fact” positivism. Secondly, there is nothing in my book to suggest that the plain-fact criteria provided by the rule of recognition must be solely matters of pedigree; they may instead be substantive constraints on the content of legislation such as the Sixteenth or Nineteenth Amendments to the United States Constitution respecting the establishment of religion or abridgements of the right to vote.

For those unfamiliar with Hart’s argument in The Concept of Law, we may just restate that a modern legal system for Hart is a system of primary and secondary rules. The primary rules are precisely those that tell us what our obligations and duties are as well as those that confer certain powers on certain individuals to perform certain actions such as make wills and conclude contracts. The secondary rules of recognition, change and adjudication, are “parasitic” (to use Hart’s language) on these primary rules since they basically tell us how we can identify what law is and how we can ascertain the validity of a rule. Hart famously argues that rules in the modern system are internal statements about how people who accept these rules actually operate as individuals who follow the law. In addition, Hart described how people act also as authorities, and how they are given that authority precisely by the rule of recognition, which is in no sense a simple rule. It is instead a complex set of practices in which judges and legislators actually engage through their own acceptance and engagement with what they have come

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to understand as their proper legal role. So the ascertainment of a rule of recognition is not some simple, plain fact because it cannot simply be said to exist (as Hart believes was the case of certain customary rules) as an external statement of a certain mode of behavior that was so standard that it was obvious to everyone. Much of Dworkin’s own understanding of the difference between internal and external skepticism about the indeterminacy of rules develops Hart’s own understanding that those who are internally engaged in the practice of following a rule know what it means precisely through their familiarity with that practice, as they are themselves actively involved in it and accept it as a guidance for their behavior. Third, Hart rejects Dworkin’s holistic approach, not only because he worries that it could potentially undercut moral criticism of existing law— as we have already attested—but also because he holds the position that whether there are objective moral facts may be a philosophical dispute so difficult that it is impossible to resolve soundly. Again, for those unfamiliar with Hart, he defends a margin of uncertainty that could well be understood to adhere in our human finitude. We simply cannot predict all the cases that will come before a judge, all the facts of those cases and the moral demands on the judge that they present if the judge understands those facts to be ones that the law has not yet addressed. It is due to this impossibility to know the future that prompts Hart to hold onto an inevitable uncertainty in the law and that, in certain hard cases, the judge must be allowed discretion to make law based on his or her most considered moral judgments. This does not mean that, in so doing, a judge would simply act as if he or she were an individual and not a judge. Although Hart is usually discussing the hard cases that present novel situations, there is no reason to think this discretion would not, for example, include an explicitly moral condemnation as should have been enunciated in Plessy. As we will see in detail later in this chapter, Dworkin does defend a holistic understanding of political philosophy which supports an interpretive moral theory on which we can rely to ascertain something very close to the right decision in matters involving political morality and its subset of law. But since Hart does not want to reach the question of moral truth, and indeed seems to worry ethically about its meaning in our complex modern world, he wants to leave open that there can actually be moral contests about hard cases, even in the work of the most conscientious judge. Therefore, Hart concludes as follows:

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I still think legal theory should avoid commitment to controversial philosophical theories of the general status of moral judgments and should leave open, as I do in this book . . . the general question of whether they have what Dworkin calls “objective standing.” For whatever the answer is to this philosophical question, the judge’s duty will be the same: namely, to make the best moral judgment he can on any moral issues he may have to decide.

Hart will go only so far as to develop some features of principles and rules of conduct that are moral rather than legal: importance, immunity from deliberate change, the voluntary character of moral offenses, and the form of moral pressure. Again, his only claim here is a claim to a phenomenology of common and characteristic features, but certainly not a position that argues for or against moral facts. However, while Hart certainly does argue that the authority of law need not appeal to moral standards, he is often misunderstood on the subtleties of this point. Because of this misunderstanding, Hart comes to defend the plausibility of what he calls a “minimalist approach” to natural law. Hart’s minimalist content includes human vulnerability, approximate equality, limited resources and limited understanding of strength and will. We reference Hart’s effort here because he does not reject natural law theory out of hand, as he is often thought to do, and therefore does not militantly draw a distinction between the moral requirements of natural law and the development of modern municipal law (even though it needs to be stressed that these minimalist purposes are not directly translated into reasons for accepting the validity of any given legal rule). Hart also shies away from the Archimedean point of view of pure description of which Dworkin accuses him. This is so because Hart does not argue that all law must necessarily, if it is to be law, proceed through a rule of recognition, rules of change and rules of adjudication as these allow us to identify legal and not moral obligations. Indeed, he wants to skirt the ultimate question of when primary duties or rules (as in what he identifies as customary law) actually become law. It will be remembered that Hart accuses Austin of falling into a mistaken dogma that custom can never have legal status unless it is backed up by a command of the sovereign. This, of course, in no way denies Hart’s argument that there is significant progress in the development of a municipal legal system that has both primary and secondary rules: “For the introduction into society of enabling legislators to change and add to the rules of duty, and judges to determine when the

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rules of duty have been broken, is a step forward as important to society as the invention of the wheel.” Of course, he does continue that it might be “fair” to say that this combination of primary and secondary rules could be considered a major step from prelegal primary rules of obligation to a legal system, but he is certainly not conclusive on this point and, in a sense, it runs against his own critique of Austin. Our attempt to clarify Hart’s disagreement with Dworkin in his postscript is not to defend Hart’s soft positivism as an adequate description of modern legal validity. Indeed, we are on Dworkin’s side that ultimately law is a “department of morality.” and that justice plays a role in fixing what the law is. Moreover, we side with Dworkin by working within the German idealist position of the idea of Recht, as defended by Immanuel Kant. However, as we have seen, Hart’s answer to Dworkin, in his defense of a narrower conception of law (particularly one that rejects the outside perception of Hercules), is much more complex than many critics of Hart have understood it to be. Indeed, perhaps we can understand the enduring allegiance to Hart because of the spirit of humility it seemingly endorses, in that we cannot expect too much of law or indeed too little, but must be weary of sweeping claims to moral truth as these are considered necessary for the recognition of a valid legal claim. Thus, we recognize the power of Hart’s thought, although in the end we are profoundly on Dworkin’s side.

dworkin’s response to hart’s postscript Before turning to Dworkin’s response to Hart’s postscript we need to review a number of significant developments in Dworkin’s own nonpositivist jurisprudence as he has tried to respond carefully to his critics. In Law’s Empire, there is some vagueness in how broadly Dworkin defines law in his interpretive constructive approach. As a result, many of his critics— although not the authors of this book—argued that he only defines law at the level of adjudication. Our own central criticism of Dworkin (stated at the beginning of this book) is that there was lack of clarity as to the status of integrity. Was it meant to be the best description of the actual practice of judges, lawyers, and legal officials in the United States? Was it instead a moral, political, and ethical ideal that the legal community should follow ultimately in accordance with Dworkin’s two principles of ethical individualism (which he now refers to as the two principles of dignity)? The two principles, to which we will return in Chapter 5, are the intrinsic value

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of human life and personal responsibility for that life. The two together are the basis for Dworkin’s argument that a democratic state must treat its members with equal respect and concern. But the lack of clarity as to the status of integrity in Law’s Empire pulled Dworkin back toward what seemed at times to be a soft positivist discourse. This lack of clarity raises the central question of whether or not integrity, as the best interpretive approach to law, ties law necessarily to morality, or whether instead there is a weaker connection that only arises in hard cases. Dworkin continues to be somewhat ambivalent in his answer, even in Justice in Robes (although, as we discuss in Chapter 5, he is crystal clear on this in Justice for Hedgehogs). Before discussing Dworkin’s answer to Hart’s postscript, however, we will need to review a number of crucial distinctions and stages that he has now developed in favor of both his interpretive constructive approach to law and his defense of integrity. Dworkin has now explicitly argued that in Law’s Empire and in Justice in Robes he has been grappling most often with law in the doctrinal sense. To quote Dworkin: They explore the concept of “the law” of some place or entity being to a particular effect: we use that doctrinal concept when we say, for example, that under Rhode Island law a contract signed by someone under the age of twelve is invalid or, more controversially, that American constitutional law permits the President to order foreigners suspected of terrorism to be tortured. We all make claims of this kind, about what the law requires or prohibits or permits or creates, and we share a great many assumptions about the kinds of arguments that are relevant in defending such claims and also about the consequences that follow when such claims are true.

The central issue, as Dworkin frames it in Justice in Robes, is whether moral criteria are ever (and, if so, when and how) among the truth conditions of law. We are adding the word how here because, at least in Justice in Robes, Dworkin seems at times to argue that moral criteria are only relevant to what he has now termed the truth conditions of law in certain circumstances, most famously when hard cases are involved. But as we will see shortly, by the time Dworkin comes to write Justice for Hedgehogs, we can clearly attribute to him a much stronger nonpositivist position. Indeed, we can see that his complex defense of integrity is actually an answer to how law is integrally connected to morality. In any event, we will return to Dworkin’s

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ambivalence in Justice in Robes (as to the when and how) shortly. First, we need to continue to elaborate Dworkin’s new and carefully developed distinctions about different kinds of concepts of law. Dworkin distinguishes doctrinal concepts of law from sociological concepts of law. What is particularly important for Dworkin, even though he allows the importance of anthropological studies of law, is that the doctrinal concept actually figures as a boundary to the sociological concept. For Dworkin, the doctrinal concept bounds the sociological concept in the specific sense that we should not speak of law sociologically outside the doctrinal question of what rights and duties the particular legal system mandates and enforces. Elsewhere, Dworkin will tell us that when the sociological or anthropological concept of law is not tied to actual empirical work, it becomes reduced to an imprecise criterial concept of law and therefore another version of the semantic sting. But Dworkin also now distinguishes both the doctrinal and sociological concepts of law from a third concept, namely the taxonomic concept. As Dworkin rightly notes, a taxonomic concept of law seeks to define law as a discrete set of standards (whether they be rules or norms) that can be neatly divided from other kinds of principles, most usually understood as moral principles. One of the criticisms of Taking rights seriously, which Dworkin quickly responded to, was that he was not a taxonomic legal theorist himself, who simply wanted to add principles to rules in order to describe a legal system adequately. For Dworkin the many intricate, but not very illuminating, debates between different forms of positivism (like inclusive and exclusive positivism) fall back into this taxonomic fantasy that may have little use to anyone outside of those who are academically engaged in this debate. Dworkin then distinguishes all three of these concepts of law from what he describes as the aspirational concept of law, which he now explicitly defends as the ideal of legality itself. Here Dworkin seeks to clarify the status of integrity as the ideal of legality that he is to defend (although, as we will see, he does not stop there, and ultimately defends this ideal of legal integrity through an appeal to wider values and ideals of political morality). It is here that we begin to see Dworkin’s ambivalence (referred to above) on the question of whether he is arguing only when moral criteria are relevant to truth propositions of law, or if he is instead making a much stronger statement of how they are relevant. As he tells us, there is wide acceptance of this ideal of legality or the rule of law, although there are many strong disagreements in the United States over what this ideal demands. He writes: “Like

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the doctrinal concept, but unlike the sociological and taxonomic concepts, a great deal turns on what we take to be the correct conception of the aspirational concept. We need not ask, however, whether political morality is relevant to deciding what the best conception is. That just is a question of political morality.” Ultimately, Dworkin does believe that we can argue for and defend a general concept of law if we understand law to focus primarily on the doctrinal concept. He does this through a series of stages in his argument. First, we need to clarify the kind of concept that the doctrinal concept of law involves and, further, ask how we can show people that this is indeed the concept of law that they are arguing about. This stage is what Dworkin calls the semantic stage of his argument, and he introduces three different types of concepts that would explain how we make truth propositions about law at the doctrinal level. The first type of concept, which is useful in understanding the doctrinal concept of law, is famously defined as criterial. Dworkin argues that Hart uses this concept in his Concept of Law (though, as we have seen, Hart adamantly rejected that this was the concept he was using). A criterial concept basically holds that only when people agree on a correct application of the associated term, do they agree on a definition. Dworkin uses bachelorhood in his example of a criterial concept—although there may be some application at the boundaries we basically know the criteria for bachelorhood’s application. The second type of concept is a natural kind concept. Natural kind concepts are, for Dworkin, usually used in science, and they allow us to discover a deeper physical and biological structure if one is a scientist—they also allow people to identify, for example, tigers as a natural kind. The third concept is Dworkin’s own interpretive concept. Interpretive concepts differ from criterial and natural kind concepts in part because of the different linguistic practices in which the latter two are embedded. Both, if in different ways, require actual convergence of meaning among the people who accept the definition, and this is precisely why, for Dworkin, there is a blurring of the boundary between imprecise criterial concepts and imprecise sociological concepts of law. Often what is described in either one of these concepts is the purported fact of convergence. Once we have determined, at the semantic stage, what kind of a doctrinal concept the law is, we must proceed to what Dworkin terms the jurisprudential stage, at which point a theorist “must construct the kind of theory of law that is appropriate given his answer at the semantic stage.” If we agree

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with Dworkin that law is indeed an interpretive concept (and of course, as we have set out at the beginning of this book, this is the view that Dworkin defended in Law’s Empire), the jurisprudential stage requires that we attempt a general interpretation of the practices in which the interpretive concept figures. We do so by way of a general account of the values that best justify the practice. These values, according to Dworkin, are to be found by studying the aspirational concept of law (as opposed to the doctrinal, sociological, or taxonomic concepts), so as to determine which values “best explain the rule of law as a political ideal.” For example, at the jurisprudential stage we look to whether or not the value of legality which we are defending is the one that should be adopted if we are to achieve fidelity to what Dworkin understands is at the heart of a modern legal system: namely, equal respect and concern for all citizens. Integrity, for Dworkin, is inseparable from at least a limited notion of equality, in that the striving for a coherent set of political principles is precisely what allows law to function at the level of generality which is necessary for the legitimation of state coercive power. To quote Dworkin: “At this stage reflections on the doctrinal and the aspirational concepts come together so at this stage the project is inevitably one in which morality figures, because any theory about how to best understand an explicitly political value like the aspirational value of law must be an exercise in political morality.” If our aspirational concept of the law requires us to adopt the ideal of integrity at the jurisprudential stage, it can and will lead us to adopt an integrity-based interpretation at the doctrinal stage, where we are called on to determine the conditions under which a proposition of law is true in the light of that ideal. For Dworkin, an integrity-based interpretation means that questions concerning the truth of a legal proposition are questions about its interpretation: A proposition of law is true, I suggest, if it flows from principles of personal and political morality that provide the best interpretation of the other propositions of law generally treated as true in contemporary legal practice. The question whether the law entitles Mrs. Sorenson to market-share damages from all the drug companies is to be settled, on this view by asking whether the best justification of negligence law as a whole contains a moral principle that would require that result in her circumstances.

Dworkin recognizes, of course, that at this stage there could be a number of different answers to the question of what the value of law is (depending

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on what values the study of the aspirational concept of law yields at the jurisprudential stage). For example, those who defend efficiency as the basic value of law—and Dworkin thinks Hart is one of them—do have a moral ideal of legality, even though it is not integrity. To help us think through what integrity, as an aspirational concept, demands at the doctrinal stage, Dworkin returns to his argument in Law’s Empire, in that we must seek first a justification of principle that is at least a competent fit for a contemporary legal practice. Second, again following his argument in Law’s Empire, he tells us that fit is not enough—it must also seek to describe an important value that the practice, as it has now been interpreted, must serve. Thus the second part of the test takes us deeper into an analysis about why we value consistency, let alone coherence. From Taking Rights Seriously onward, Dworkin has argued that the gravitational pull of precedent is not one of mechanical fit but is instead one of fairness. And as he tells us again in Justice in Robes, this fairness is in turn connected to what is meant by equality before the law. We proceed from the doctrinal stage to the adjudicative stage, at which point we are required to determine how the true propositions of law identified in the doctrinal stage inform what enforcers of the law must actually do in particular cases. Dworkin recognizes, of course, the importance to many people in a modern democracy that judges impose only true propositions of law. But, as we have seen, what qualifies as a true proposition of law is what is at stake here. For Dworkin, if one follows his stages as he has developed them, one will find that the value of integrity flows from the doctrinal stage into the adjudicative stage, because integrity requires that judges meet their responsibilities as judges in perpetuating a coherent set of legal principles, which responsibilities include, in some cases, looking at what morality demands. Importantly, judges are not looking to morality as part of an outside discretion, as in the case of Hart’s account, but rather to determine to how political morality informs and deepens the legal ideal of integrity. As we have seen, one of the key disagreements between Hart and Dworkin is what the judge must do when there is a gap in the law. For Hart (and he continues to defend this position in the postscript), the judge is free to fill in that gap according to his discretion. For Dworkin, if we proceed with the understanding that law is an interpretive concept at the semantic stage—a concept that honors legality at the jurisprudential stage as well as a specific idea of legality—then integrity at both the doctrinal and jurisprudential

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stage will not allow the judge simply to act out of discretion at the adjudicative stage. Instead, the judge is required to develop the best interpretation of the propositions of law at stake, even when the law is silent on the particular situation at hand, by appealing to a more comprehensive view of how the law actually speaks through a system of principle. Having set out these stages, Dworkin goes on to define different forms of positivism. In particular, he distinguishes political doctrinal positivism from analytic doctrinal positivism. Political doctrinal positivism takes very seriously the notion that the best justification of legal practices must always look to a democratic principle; that is, it is the people as a whole, and not judges, who should decide what laws govern them. Dworkin even interprets the recent debates about originalism as a kind of political positivism, because he sees that position as being based in the view that it is the people’s representatives—even if representatives in the distant past—who should guide us in our understandings of how to resolve the great controversies of law. Analytic positivism, he argues, begins with Hart, but has many modern proponents such as Jules Coleman and Joseph Raz. How do these new developments relate to his response to Hart? On a more superficial plane, Dworkin responds to Hart’s criticism by arguing that Hart’s insistence that he is not using a criterial concept of law does not free him from Dworkin’s overall challenge of conventionalism. This is so because he is ultimately turning his descriptive sociology into enough convergence of the actual practice of legal officials that it can simply be described, for example, as a rule of recognition. He also argues that it is not enough for Hart’s soft positivism to defend the idea that moral conventions, if they are explicitly included in a legal document, can be deployed, because there is intense disagreement, especially in the United States, over whether or not there are indeed such moral conventions. If there are these disagreements, then there is no convergence, and therefore there is no ability simply to describe the rule of recognition in the US Constitution without resolving these disagreements. As we have seen, Dworkin disagrees with Hart, and profoundly so, that when we disagree about propositions of law, or when law is silent, the judge must act out of his or her moral discretion. Instead, according to Dworkin, the judge must try to proceed through the stages of analysis that Dworkin has described, ascending all the way back to the jurisprudential level, in order to decide how hard cases can be resolved. This is done through an appeal to the deeper principles that underlie specific propositions of law. We have

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also seen that Hart wants to make sure that law must not turn on the philosophical resolution of questions about morality and moral truths. Dworkin understands that if he is to give a full answer to Hart, he must explain a broader concept of political morality that allows him to rely on something like moral truths in law. But before we engage in Dworkin’s concept of political morality, and indeed political philosophy, we need to see how he reinterprets his disagreement with Hart on the aspirational level of law. Dworkin argues that there are two main competitors to his ideal of integrity. The first is accuracy, the second is efficiency. Dworkin, in Justice in Robes, argues that Hart does in fact appeal to efficiency, and indeed we have seen that he is right to do so because efficiency is one of the key values that Hart associates with the development of modern legal institutions and with their designated officials like judges. But we have indicated above that there is a much neglected aspect to Hart’s writing, which is his tentative advocacy of a minimalist natural rights approach to law, which, surprisingly, is much closer to what Dworkin describes as accuracy: “By accuracy I mean the power of officials to exercise the state’s coercive power in a substantively just and wise way. Legality promotes accuracy if official acts are more likely to be wise or just or just if they are governed by established standards than if they represent merely the contemporary judgment of some official about what would be just or wise.” Dworkin argues that some natural rights theorists are justifying their notion of law through accuracy, but he does not include Hart amongst them. And yet, as we have argued earlier, we might want to think about Hart’s continuing hold on the imagination of so many legal theorists somewhat differently than in the simple elegance of his description of a modern legal system as a combination of primary and secondary rules. Rather, Hart’s appeal to minimalist natural law may have a hold on so many because it seems to rely on a deep set of truths about human beings and why they need a legal system. It is certainly a more limited and humble view of law than the more lofty one that Dworkin embraces, but it may be precisely because it is less lofty and seemingly committed to deep truths about human beings that explains its appeal, particularly in a time when lofty or ethical appeals to human ideals seem to go directly in the face of historical reality. As Dworkin tells us, contrary to Hart, “[w]e must undertake that sovereign duty if we claim a rule of law that is not just an instrument for economic achievement

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and social peace, but an emblem and mirror of the equal public regard that entitles us to claim community.” So what Dworkin has added to his debate about Hart’s postscript is that Hart’s sources thesis is in fact a conception of legality, and since he claims that Hart’s theory rests in the value of efficiency, Dworkin then proceeds to show that, although efficiency is important, it is ultimately somewhat vacuous, unless we answer the question about exactly what we are trying to achieve efficiently. However, Dworkin also understands that in order adequately to defend the ascent that even a judge must sometimes undertake through all the stages of analysis he has described, he must turn us to a very different understanding of political philosophy that is also to be understood as interpretive. To answer Hart’s profound desire to stay away from iffy propositions about moral truths, Dworkin delves into his own understanding of moral objectivity. In this regard, we first need to understand how Dworkin comes to develop a philosophical analysis of value. First he argues: Political and other values are in almost all those respects like natural kinds. First, political values, too, are real: the existence and character of freedom as a value does not depend on anyone’s invention or belief or decision. That is, I know, a controversial claim: many philosophers dispute it. But I shall assume that it is true. Second, political values have a deep structure that explains their concrete manifestations.

But the irony is that Dworkin then goes on to distinguish between detached and integrated values, and argues that values such as justice and freedom are not detached but are part and parcel of how people live their lives. The value of freedom and justice follows precisely in how they are integrated into a broader system of values in both our individual and collective lives. So in order to conceive any particular value we must identify the contribution any ideal makes to living a good life (which Dworkin will later describe more precisely as the value of living well). Ultimately a value system—and system is probably not the best word here—proceeds to show the value of various ideals and values as they make a contribution to how we put these values together in a comprehensive scheme. There is a deep sense here in which Dworkin echoes Hegel’s most profound insight, namely that one can accept that the truth lies in the whole (even if this whole is an interpretive whole and not one that is metaphysi-

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cally grounded as in Hegel). This appeal to a holistic and interpretive approach is figured in the fashion of a geodesic dome. Our values are to fit together in some way, and one of the ways we make judgments about the best way to fit them together is to define them so that they do not conflict with one another. This is why, for Dworkin, a theory of liberty that can yield nothing but a conflict with equality is not the best theory of liberty. And this, in turn, explains why he rejects Berlin’s concept of liberty. Political philosophy, then, is a holistic and interpretive enterprise in this sense. To quote Dworkin: Political philosophy that aims better to understand the political values must fold its own work into that large structure. It must aim, first, to construct conceptions or interpretations of each of these values that reinforce the others—a conception of democracy, for example, that serves equality and liberty, and conceptions of each of these other values that serves democracy so understood. It must aim to construct these political conceptions, moreover, as part of an even more inclusive structure of value that connects the political structure not only to morality more generally but to ethics as well. All this sounds, no doubt, impossibly and even perhaps unattractively holistic. But I see no other way in which philosophers can approach the assignment of making as much critical sense as is possible of any, let alone all, parts of this vast humanist structure. If we understand that that is philosophers’ collective responsibility, over time, we will each have a better sense of our own separate marginal and incremental roles.

Dworkin distinguishes his own position from Rawls in that Rawls, in Political Liberalism, warns against an equilibrium rooted in comprehensive theories, and instead hopes only for stable equilibrium on constitutional essentials. But for our purposes here we can understand why Dworkin introduces his larger claims of political philosophy in his response to Hart— ultimately, if we are to ascend high enough, we find that Dworkin’s defense of legality as integrity, which in turn implies equality, takes us back to an interpretive holistic approach to the meaning of law (not only in the United States but in modern democracies in general). Dworkin has always been careful to add that any conception of legality must try to avoid empty abstraction and parochialism. Dworkin is more than aware that the principle of legality is itself sensitive to the actual legal schemes that will differ across legal systems, and he is, of course, also aware that many questions of law

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may never even reach this jurisprudential discussion (even as he recognizes that the jurisprudential debate between accuracy, efficiency, and integrity always has a moral edge). Indeed, it is important for Dworkin’s entire argument that oftentimes cases are easily decided by looking to what he calls local priority. But in his argument against Cass Sunstein, who tries to defend the proposition that judges do not and should not use theory, he contends that as we get into the more difficult areas of law (so-called hard cases), judges both do and are ethically called to ascend into an ethical debate of the sort that Dworkin has described. It may rarely be necessary for judges to ascend to the next level that Dworkin points to in his response to Hart’s postscript—how law as integrity (since it is tied to a notion of equality) can demand that we ascend to yet another level of what this notion of equality means. He has done so, however, in his defense of what he has called ethical individualism (and now in his defense of the two dimensions of human dignity—the intrinsic value of human life and personal responsibility for human life). We will have more to say about these principles in our discussion of Justice for Hedgehogs in Chapter 5. Before turning to Dworkin’s defense of these two principles, we need to return to an ambivalence we have noted throughout this book: Is Dworkin arguing that there is a necessary, integral connection between law and political morality? We want to argue strongly that, if one follows Dworkin’s argument carefully, as we have done, one will find that he makes the stronger claim that there is indeed an integral connection between law and political morality. This is so because there is a moral edge to each one of the stages he describes—a moral edge is not contingent on but rather part of how Dworkin argues we make judgments of what the law is. However, he continues at times to deny that that is what his argument leads to. To quote Dworkin in his response to Coleman: “Coleman claims that I am guilty of a primitive confusion between two very different claims: that morality is not necessarily a condition of law, and that morality is necessarily not a condition of law. . . . He offers no citation to prove my guilt, however, and I have in fact insisted on the distinction. I accepted the first of these claims and argued only against philosophers who defended the second.” We should not be surprised that Dworkin shies away from that logical conclusion of his argument in Justice in Robes, in that he has been thinking against the grain of Anglo-American jurisprudence for thirty years now, and we should certainly all applaud his bravery. But we can only understand

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his holistic and interpretive approach (not only to law but to political philosophy as well) if we prod him to take his argument all the way through to a nonpositivist Kantian jurisprudence. This he has now done in Justice for Hedgehogs. As we discuss in Chapter 5, Dworkin is now relying expressly on Kant to ground his two principles of dignity.

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Integrity to Dignity

In this chapter we make two arguments. First, we argue that in his final book, Justice for Hedgehogs, Dworkin adopts an interpretive approach to Kant’s ethics as the basis for his two principles of dignity. Therefore, in a profound sense, Dworkin has moved into the realm of critical idealism, which now lies at the very core of his comprehensive liberal philosophy. We begin with a summation of those two principles as they have been elaborated by Dworkin, first in Is Democracy Possible Here? and then further developed in a more explicit Kantian direction in Justice for Hedgehogs. Although we disagree with some of Dworkin’s interpretation of Kant—especially his interpretation of Kant’s complex and often contradictory defenses of freedom—we will put this aside for another book, and focus instead on a fuller understanding of how some of Kant’s later writings after the Groundwork of the Metaphysics of Morals actually bolsters Dworkin’s interpretive approach to Kant’s work. Second, we maintain that, in Justice for Hedgehogs, Dworkin is better served by renaming his second principle (now designated as authenticity) 79

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as accountability. The reason for this is that authenticity is so deeply caught up in particular notions of the individual associated with romantic idealism, and indeed the early work of Martin Heidegger, that accountability seems to be much more apt for the Kantian point he is trying to drive home in his second principle.

the beginning of dworkin’s kantian turn Let us begin with Dworkin’s elaboration of the two principles of dignity in Is Democracy Possible Here?, a stunning and brave defense of his two principles as these might be used to salvage political life in the United States. Dworkin describes his first principle of dignity as the “principle of intrinsic value,” which holds that each human life has a special kind of objective value. By objective, Dworkin means only that the value of human life is independent of any one person’s taste, belief, or desire. To put it somewhat differently, it is objective in that it is independent of any particular person’s emotional relationship to a particular thing. For example, some of us love Diet Coke, and that is clearly a subjective value. But for Dworkin an individual life has a value not just for that person. Rather, because it is a unique human life, there is something in our shared humanity embodied in each life, which we value independently of our own relationship to any one person or our own dislikes for that person. In other words, one must accept that living well is equally important for each person. Dworkin states: “[A]ccording to the first principle, we should all regret a wasted life as something bad in itself, whether the life in question is our own or someone else’s.” It should be noted here that objectivity also plays another role in Dworkin’s first principle, in that he believes that the standard against which “living well” is judged is objective, and it is therefore possible to be mistaken about what living well means. Ultimately, Dworkin believes that noncompliance with this first principle can lead people to undermine their dignity in two ways. First, people who do not care whether they are mistaken about what it means to live well, undermine their own dignity. Second (and here we begin to see the first glimmer of Kant in his work), because the objective importance of living well applies equally to all human beings, one cannot separate the notion of self-respect from respect for the importance of the lives of others. Denying the intrinsic importance of other human lives is an insult to one’s own dignity.

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Dworkin’s second principle of dignity is the principle of self-responsibility, which holds that each person has a special responsibility for her own life, and therefore she must be the one who ultimately makes judgments concerning the fundamental decisions about how she is to develop that life. This principle includes the exercise of a judgment as to what kind of life would be successful for her, and which judgment must be exercised in the absence of coercion. Thus, while we may receive advice and be influenced by others, the ultimate choice must be a self-conscious and independent one. Once again, Dworkin argues that we have no reason to believe that this responsibility for realizing success in one’s life does not belong to all human beings equally. The two principles above (being aspects of each other rather than in competition with each other) collectively define for Dworkin the basis and conditions of human dignity. However, it should be noted that, in Is Democracy Possible Here?, Dworkin still seemingly relies on a conception of an idealized “we,” which we discussed in Chapter 2 in relation to Law’s Empire. For example, he states: No doubt almost all Americans agree on certain fairly concrete political principles; we agree, for example, that it would be wrong to jail a newspaper editor just because he has criticized the government. But the common ground we need in order to sustain a genuine large-scale argument about what divides us cannot be found in principles of that level of concreteness. We must look much further back; we must look not to principles that are distinctly political or even moral but rather to principles that identify more abstract value in the human situation. I believe that almost all of us, in spite of our great and evident differences, share two very basic such principles. Each of these is more complex than might first appear, and I will elaborate each throughout the book in discussing its implications for political policy. But I should first state them in their most abstract form.

Moreover, throughout Is Democracy Possible Here?, Dworkin appeals to a “you” in order to invoke a shared ethical world. But that book already reveals an ambiguity in his continued appeal to this “we,” as he recognizes that many of his actual political proposals following from the two principles of dignity would seem wildly utopian to many citizens of the United States:

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I will not speculate much about the political possibilities of realizing these and my other now unpopular suggestions. At least some of them are politically utopian—it would be nearly impossible to persuade a majority of Americans to accept them, at least for a long time to come— and some would require constitutional amendment. I am a lawyer, and I will say something, particularly in the last chapter, about constitutional law. But my main interest is in political principle, not law. Utopias have their uses; they can concentrate the mind on the real limits of what is possible. In any case, this is no time in the life of the nation—or for that matter in my own—for caution.

This seems to indicate that Dworkin is moving toward a defense of these principles that does not necessarily rely on the existence of an idealized “we,” but in fact calls it into being. As we have argued in Chapter 2, to the extent that Dworkin relies on the idealized “we,” he is seemingly going back to Hegel. Indeed, in a profound sense, some of Dworkin’s arguments about a shared “we” echo Hegel’s in that he is appealing to what Hegel called Sittlichkeit, meaning actualized ethical ideals that we achieve both in a modern state and in modern social life through relations of mutual recognition. Much ink has been spilled about Hegelian metaphysics and the naturalized history which is ultimately the metaphysical explanation of how this shared “we” comes into being. But even if Hegel could be used effectively to defend the ideal “we” that Dworkin must ultimately rely on if he is to establish his own claims and his interpretive philosophy beyond conventionalism, there are also serious limits to the use of Hegel in this way. In the postcolony, and certainly in a country like South Africa, where Sittlichkeit and the ethical relation were radically shattered by the brutal realities of colonialism and apartheid, clearly the appeal to a “we” is a future aspiration, rather than an invocation of the actual existence of an ideal community such as in Hegel. In contrast to Hegel, a shared “we” in Kant is always a regulative ideal for human beings who aspire to respect the humanity in themselves and others and therefore to coordinate their interests in a realm of ends. But this regulative ideal is never an actuality, to use the precise term associated with German idealism. It is something to which we aspire, but at the same time it is something that can also regulate our behavior. The great Emeritus Justice of the South African Constitutional Court, Laurie Ackermann, has stated, not only in articles but also in judgments, that the substantive revolution in South Africa must regulate itself through nothing less than this aspirational

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“we” that seeks to regulate social, moral and indeed legal behavior through an aspiration to coordinate interests in the realm of ends. Kant is relevant to Dworkin’s thinking on the relationship between law and political morality because in Kant there is no distinction between the legal and the moral—the legal (as the realm of external freedom) is still part of morality. Therefore we do not think, if we think with Kant, of legal versus moral rights, because the notion of Recht is itself a moral notion. As we have seen from the earlier discussion of Justice in Robes and the previous discussion of Is Democracy Possible Here? (Chapter 4), Dworkin is already very close to a Kantian position that sees law as necessarily part of political morality, even if he does not use explicitly Kantian language to defend law as the realm of external freedom. But in Justice for Hedgehogs, which seeks nothing less than an integrated comprehensive liberal philosophy that incorporates ethics and morality, Dworkin has become explicitly Kantian. We wish to review that argument now.

justice for hedgehogs and the two principles of dignity Dworkin begins his argument on moral responsibility by reviewing the infamous debate between the compatibilists and the incompatibilists. Simply put, compatibilists believe that determinism and freedom can be rendered compatible, although there are also just as many views on what constitutes compatibilism as there are those that completely reject compatibilism as an inadequate Kantian notion of freedom. Incompatibilism, for its part, suggests that freedom and nature are not simply incompatible, but that a strong Kantian sense of freedom means that freedom must begin a new causal chain. Therefore, freedom is not simply a break with the past, which would still be a connection to it, but something utterly independent from anything that came before. Many of these debates, to our mind, actually misinterpret Kant, and we will return to that point in a later book. For now, we want to emphasize that Dworkin wants to argue that this debate should not be made central in ethical and moral philosophy, even if we need to have some answer to it. Here we need to remind the reader of Dworkin’s distinction between the ethical and the moral. The ethical, for Dworkin, is how we develop our own character and find a worthwhile life for ourselves. It is what, in a sense, we owe to ourselves as unique persons with unique lives to lead. By contrast, morality is what we owe others. Dworkin’s grand project is to show us that

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ultimately his two principles of dignity are not only reconcilable with the ethical, as he understands it, but are necessary to the project of building a unique and worthwhile life. To do so he makes an important distinction between living well and having a good life and, as we will see, this distinction is crucial for him in how he connects the ethical to the two principles of dignity. Dworkin defines living well as follows: [L]iving well means creating not just a chronology but a narrative that weaves together values of character—loyalties, ambitions, desires, tastes and ideals. No one creates a narrative of perfect integrity: we all act, as we say, out of character sometimes. Many people’s lives, judged as narratives, are picaresque or even shambles—Hubbard’s “one damned thing after another” or Millay’s “one damn thing again and again.” But just for that reason those lives are not lived well, no matter how full of worldly success they turn out to be, unless they are redeemed by a new, late-in-life integrating interpretation or by conversion to a new integrity. Our responsibility system reflects that—at least to me—attractive ethical judgment.

But Dworkin understands that he nevertheless has to say something about the compatibilist/incompatibilist debate, or at least why he is ignoring it, if he is to defend anything like his two principles of dignity, which must retain enough freedom such that responsibility is not completely reduced to biological impulses. Dworkin’s solution is to develop what he calls the “capacity control principle,” which is enough to allow for what he refers to as a responsibility system. We quote him at length because of the important distinction he makes between two different ways of understanding his responsibility system, and because he sees his own understanding of that system as a way of moving beyond the complex issues of determinism that, he argues, have bogged down discussions of free will and responsibility: This argument [that if determinism is true then we are never in control] depends not just on the assumption that control is necessary to responsibility, but on a particular understanding of what control means. It supposes that someone is not in control when his decision is determined by external forces in the way determinism holds that all behaviour is. I shall call this the “causal” sense of control because it makes judgmental responsibility turn on the ultimate, originating historical causes of decision. We are in control when the causal chain that explains how we

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act travels back only to an impulse of our own will, not when it travels further back to past states and events that, together with natural laws, explain that act of will. There is an alternate understanding of what it means to be in control. On this different view, an agent is in control when he is conscious of facing and making a decision, when no one else is making that decision through and for him, and when he has the capacities to form true beliefs about the world and to match his decisions to his normative personality—his settled desires, ambitions and convictions. This is the “capacity” sense of control. The two senses of control provide two different principles as candidate ethical foundations for the responsibility system: the causal control principle and the capacity control principle. The first insists that causal control is essential to responsibility; the second that capacity control is essential. Many philosophers—and many nonphilosophers—assume that the causal principle is obviously sound and the capacity principle is just an evasion. But the difference between the two principles is more profound. They take very different views of the nature, point, and, as we might put it, the location of judgmental responsibility. The causal principle views the question of responsibility from outside an agent’s own ordinary sense of his situation. It asks us to step back from our day-to-day life to try to see our situation as an all-knowing god might view it. It places our mental life in the context of the natural world; it asks us to try to explain our processes of decision the way we explain the workings of our internal organs. It ties the ethical judgment of responsibility to the scientific judgment of causation. The capacity principle, on the contrary, locates responsibility within the brackets of an ordinary life lived from a personal perspective. It makes an assumption of ethical independence: that our conscious decisions are, in principle, crucially and independently important in their own right and that their importance is in no way contingent on any remote causal explanation.

For Dworkin, pessimistic incompatibilism (which, on his understanding, reduces us to pawns of nature in spite of our consciousness and selfconsciousness) is an incoherent position because it denies completely the first-person perspective: I simply cannot live as if I were nothing more than a hurricane or a piece of seaweed tossed around in the ocean, because there

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is always an “I” that gets in the way of its complete denial. Even the pessimistic incompatibilist refers to an “I” that is arguing, and gives reasons for his or her argument, and which is therefore, in a sense, exercising judgmental responsibility despite his or her own arguments. For Dworkin, the capacity principle is enough of an answer to the problem of freedom and allows him to justify what he calls a responsibility system. But the responsibility system is not, as Dworkin argues, without freedom; it is simply a definition of what constitutes it. Freedom and liberty are not the same for Dworkin, in that liberty is a political value that allows us to do as we desire with what is rightfully ours. But the capacity principle, in which he grounds the possibility of the two principles of dignity, does not simply appeal to liberty as a kind of political value, but rather explains why certain kinds of responsibility can be plausibly defended. There are different kinds of responsibility that Dworkin seeks to defend. First, he defines what he calls virtue responsibility. Virtue responsibility is the kind of responsibility by which we accuse someone as behaving irresponsibly either intellectually, practically, ethically, or morally. So, to refer to one of his examples, a scientist who does not check his calculations lacks intellectual responsibility. A leader like George W. Bush, who takes his country to war based on both inadequate and immoral reasons, lacks virtue responsibility in all four senses. Dworkin then distinguishes virtue responsibility from what he calls relational responsibility, which is responsibility for an event or consequence. There are three types of relational responsibility. First, there is causal responsibility, which concerns the actions that figure in the best causal explanation of an event. Second, there is assignment responsibility, which arises in respect of a particular matter when someone has a duty to attend to or look after it. Dworkin himself gives two examples: the last person leaving the room should turn off the lights by virtue of the fact that she is the last person; or a sergeant’s responsibility for his platoon. These persons have assignment responsibility because of a particular position that they occupy. Third, there is liability responsibility, which he defines as the moral liability for the results of some act or event. For example, a reckless driver is responsible for the consequences of his actions, and an employer may have liability responsibility for any damage his employees cause. Finally, there is judgmental responsibility, which is directly related to how I give reasons to myself and how others give reasons for my behavior. These reasons do not merely concern whether my behavior is praiseworthy

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or otherwise, but rather whether it is moral or immoral. For Dworkin it is judgmental responsibility, which actually demands that we address the question of whether human beings have enough freedom to be held responsible for their actions, and for their judgments about their own lives and the lives of others. In this sense, judgmental responsibility is a necessary precursor to all the other forms of responsibility he defines. Thus, for Dworkin, the need to distinguish between causal control as a form of determinism and capacity control is precisely to try to answer the question of how we have enough control to exercise moral judgment and therefore exercise judgment responsibility. We will return later to assignment and liability responsibility, as we will take these ideas beyond the use that Dworkin himself makes of them into the postcolonial situation, and illustrate how white people have both assignment and liability responsibility in South Africa and in other postcolonies. But, indeed, white people can only assume this responsibility if they can exercise judgmental responsibility and lead their lives in accordance with the two principles of dignity, which, on Dworkin’s account, are at the heart of what it means to live well. The categorical imperative for him (the moral law for Kant) is an important test for judgmental responsibility. As Dworkin argues: Being able to universalize the maxim of our conduct is hardly a test of truth; different agents will produce different schemes responding to that requirement. But it is a test of responsibility, or at least an important part of such a test, because it provides the coherence that responsibility asks. It also tests the authenticity that responsibility demands: Kant said we must be able to will as well as imagine the universality of a maxim. Politics is for most people among their most important moral theatres and challenges. So a community’s political philosophy is a major part of its conscience and claim to collective moral responsibility. 

It is important to note that, for Dworkin, political morality is so crucial because obviously there are some obligations that even the most ethical person could not live up to individually, and therefore we will need to act together, and, do we dare say, to aspire to coordinate our interests in the realm of ends. Dworkin wants to argue that the two principles of dignity—self-respect and authenticity—are actually ethical as well as moral principles, in that they are crucial to living well. Recall that the first principle—the principle of intrinsic value—defends the notion that each human life has a special

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kind of objective value. In his explanation of this principle in Justice for Hedgehogs, Dworkin expressly relies on Kant to argue that, if I respect my own life, and care about how well it is lived, I would have no reason to think that your life does not matter as much to you as my life does to me. This is Dworkin’s interpretation of Kant’s third formulation of the categorical imperative—we must respect the humanity of all others. Whether or not it is in fact Kantian we will leave aside for a moment. Instead, to quote Dworkin on how “your” recognition (Dworkin appeals to the “you” to bolster the plausibility of his argument) that your life is important will lead you to the conclusion that everyone else’s life is equally important: In Chapter 1, I described Kant’s principle. This holds that a proper form of self-respect—the self-respect demanded by that first principle of dignity—entails a parallel respect for the lives of all human beings. If you are to respect yourself, you must treat their lives, too, as having an objective importance. Many readers will find that principle immediately appealing, but it is important to pause over its sources and its limits. If you believe that it is objectively important how your life goes then you should consider this important question. Do you value your life as objectively important in virtue of something special to your life, so that it would be perfectly consistent for you not to treat other human lives as having the same kind of importance? Or do you value your life in that way because you think all human life is objectively important? ... What case could someone make that his importance is special? Many people hold the opposite, universal view. Many religions teach that a god made human beings in his own image and has equal concern for them all. Secular humanitarians believe that human life is sacred and that the failure of any life is a waste of a cosmically valuable opportunity. Most people react emotionally to the actual and even fictional tragedies of strangers on either a small or very grand scale. We weep for Adonis and we weep for the anonymous foreign victims of earthquakes and tsunamis. The universal view hangs together admirably with this set of familiar opinions and reactions.

There is a further move that Dworkin makes in defending this first principle of dignity, and this has to do with his emphasis on uniqueness. Although he does not emphasize uniqueness in exactly this manner, we believe

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that it is consistent with and crucial to his argument. Each one of us, he says, not only has unique value as embodying a shared humanity, but we also have a unique life. That uniqueness produces a special responsibility in us, and leads to the second principle of dignity. Dworkin’s second principle is renamed in Justice for Hedgehogs as the authenticity principle. For Dworkin, the heart of authenticity is that our lives must be self-directed even, of course, while understanding that what selfdirection means will always take place against a social and political background. To connect authenticity to the objective value of human lives, Dworkin distinguishes between coercion and the influence of social background, communities, religion, and indeed tribal affiliations. These latter factors may undoubtedly influence what the design of our life should be, but they need not necessarily dictate choice. The essential point is that we must not be coerced into accepting any particular design for our lives. For example, a deeply religious person may choose to subject herself to the authority of God, but what is crucial is that this is a choice, in that she is not coerced into accepting that authority. Dworkin argues that moral duty is not insulated from the overall project of living life well, and that his two principles of dignity can therefore be integrated into that project. He offers an interpretation of Kant to support his view: I want rather to suggest a way of reading Kant (whatever else it ignores in his writing) that tracks the methods I propose to follow here. That reading begins in ethics: with ethical demands that match the two principles of dignity we have now recognized. Kant’s “principle of humanity” is in the first instance about the mode in which we must value ourselves and our own goals: we must see these as objectively, not just subjectively, important. We must think, as our first principle insists, that it is objectively important how our lives go. We draw the appropriate conclusion in what I called Kant’s principle: if the value you find in your life is to be truly objective it must be the value of humanity itself. You must find the same objective value in the lives of all other persons. You must treat yourself as an end in yourself, and therefore, out of self-respect, you must treat all other people as ends in themselves as well. Self-respect also requires that you treat yourself as autonomous in one sense of that idea: you must yourself endorse

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the values that structure your life. That demand matches our second principle: you must judge the right way to live for yourself and resist any coercion designed to usurp that authority. These two demands of dignity pose the interpretive challenge I have described. There could be no option, for Kant any more than for us, of resolving this stark conflict by balancing or compromising the two demands. Any compromise would necessarily be, for Kant as for us, a sacrifice of our dignity. His response was therefore to offer better interpretations of the two demands. He understood autonomy to mean not freedom to pursue whatever inclinations one might have but freedom that includes freedom from those inclinations. We are autonomous when we act out of respect for the moral law rather than to serve some particular goal: our own pleasure, for example, or what we take to be a good life, or some more transcendent value, or even to relieve the suffering of others.

Dworkin goes on to say: “Certainly Kant did not suppose that acting for the sake of the moral law necessarily or even usually produces a good life. But he did think it would mean living well, with full self-respect and autonomy. The Kantian system so understood is an impressive piece of active holism.” It is clear, however, that Dworkin has doubts about whether it is true to Kant’s work to read him as incorporating moral duty within the project of living well. He concedes that “I have entirely ignored much argument that many Kantian scholars think most distinctive and important,” and thus suggests that “[t]his reconstruction of Kant’s argument bends it toward the argument of this book—perhaps past the breaking point, though I hope not.” This question of whether Kant seeks to isolate moral duty from living well is commonly misunderstood, and we believe it needs to be addressed. According to Kant, if there is to be a categorical imperative, there must be an end that is an objective in and of itself. For Kant that end is humanity, or the rational nature in persons. Certainly, for Kant in Religion within the Boundaries of Mere Reason, the humanity that is an end in itself and the respect for our rational nature as persons is not reduced to a respect for what he calls personality. Personality is the rational possibility to lay down a law unto ourselves and to abide by it only through the dictates of practical reason. That law famously is the moral law.

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However, there are three dispositions in Kant—personality, animality, and humanity. Animality is what we think of as our biological instincts and drives that we share with all other animals—the need to eat, to reproduce, to shelter ourselves from the elements, and so on. It would include something like the mechanical, prerational feelings we have for self-preservation, and even a primordial social drive to be with others to find protection. Humanity, in contrast, contains our unique human capacity to turn our ends into maxims that we set for ourselves and to develop a rational plan through which we turn all of our maxims into something like what Dworkin calls a design for life and a conception of happiness that can last over time. At times, Kant distinguishes between technical and pragmatic rationality as crucial to our humanity. Technical rationality is something like instrumental reason, through which we pursue ends that do not seem to be part of a rational scheme of self-cultivation. The pragmatic reason is associated with the rationality of an overall scheme of life, and therefore it is not just about finding the right means to pursue arbitrary ends, but the development of an overall life in which we seek not only happiness but also a life that includes self-cultivation as well as the faculties of sociability that bring human beings together. This predisposition of humanity always takes Kant back to human beings in communication with one another. Thus, there is a sense in which Kant already anticipates the dialogic nature of rationality, in which we come together with others to cultivate ourselves so that we can ultimately find ways to live together. As Allen Wood has pointed out, Kant’s argument—that it is humanity and not just moral personality that is an end in itself—is somewhat obscure. Wood rightfully argues that Kant’s claim—that every human being necessarily takes his own existence as an end in itself—is not an empirical claim, because most people indeed never even entertain it. Therefore, there is no idealized “we” on which Kant is relying, at least not a “we” that is conscious of taking each and every human life as an end in itself. So what does it mean, then, if we are not speaking of actual empirical people having as a proposition that something in every human being necessitates that they take themselves, indeed their own lives, as an end in and of itself? To quote Wood: Kant holds that the most basic act through which people exercise their practical rationality is that of setting an end. To set an end is, analytically, to subject yourself to the hypothetical imperative that you should

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take the necessary means to the end you have set. This is the claim that you rationally ought to do something whether or not you are at the moment inclined to do it. It represents the action of applying that means as good—in the sense of “good” that Kant explicates as: what is required by reason independently of inclination. Kant correctly infers that any being that sets itself ends is committed to regarding its end as good in this sense, and also to regarding the goodness of its end as what also makes application of the means good—that is, rationally required independently of any inclination to apply it. The act of setting an end, therefore, must be taken as committing you to represent some other act (the act of applying the means) as good.

The next step for Kant is that, if we take our rational nature as an end in itself, we can also generalize to take this capacity as one that is to be respected in every other creature (i.e., human creature) that also sets ends for itself. And this is a capacity that belongs to everyone—good people, bad people, as well as to the most virtuous person. So we need to stop here and take cognizance that Kant does not simply reduce the infinite worth of humanity to moral personality, and that indeed rational self-love and the pursuit of a happy and meaningful life is part and parcel of our self-respect. Here we see that Kant is much closer to Dworkin than Dworkin indicates in the above quote. To quote Kant: To be happy is necessarily the wish of every finite rational being, and this, therefore, is inevitably a determining principle of its faculty of desire. For we are not in possession originally of satisfaction with our whole existence—a bliss which would imply a consciousness of our own independent self-sufficiency—this is a problem imposed upon us by our own finite nature, because we have wants, and these wants regard the matter of our desires, that is, something that is relative to a subjective feeling of pleasure or pain, which determines what we need in order to be satisfied with our condition. But just because this material principle of determination can only be empirically known by the subject, it is impossible to regard this problem as a law; for a law being objective must contain the very same principle of determination of the will in all cases and for all rational beings.

As a result, then, there is no need for Dworkin to doubt that Kant is on his side. Rather, we believe that he is indeed with Dworkin, insofar as

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Dworkin is trying to integrate his two principles of dignity into a notion of living well.

critique of authenticity How is it, then, that Kant has sometimes been identified with “moral isolationism”? This misidentification of Kant often forgets the profound influence of Rousseau on Kant’s view of our desires. Famously, Rousseau argued that human beings become ever more corrupted in civilization, and particularly as they live in hierarchical societies, which promote petty status battles. These petty status battles turn people to “cultivate” envy, backstabbing, gossip, sexual licentiousness, money-grabbing and to many other targets that Rousseau so brilliantly associated with the third estate. To quote Rousseau: The lukewarmness of patriotism, the activity of private interest, the vastness of States, conquest, and the abuse of government suggested the method of having deputies or representatives of the people in the national assemblies. These are what, in some countries, men have presumed to call the Third Estate. Thus the individual interest of two orders is put first and second; the public interest occupies only the third place.

By the time Kant wrote Perpetual Peace, he slammed the actions of the “civilized peoples”—which included simply sticking a flag in the ground and claiming entire continents as their own—as the very height of hubris and horrendous behavior. We need, then, to recognize that Kant was not suspicious of happiness or desire per se, nor did he think that human beings just have a bad nature. He instead accepted Rousseau’s fundamental suspicion of what “civilization” had done to human beings, and that we should therefore look with great suspicion at some of our impulses. But this is not Kant the prude—this is Kant the social critic. And it is Kant as a social critic that is often missed in the accusation that he is a moral isolationist. Even though Kant argues that it is humanity that has infinite worth—not just personality—it is personality and our rational nature that gives us our dignity. As Allen Wood rightly points out, however, the infinite worth of humanity and the dignity of personality have to interact if one is to make sense of the idea that humanity is an end in itself: If being an end in itself constitutes the worth of humanity—in the technical Kantian sense, which is the capacity to set ends according to

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reason—then having dignity constitutes the worth of personality— which is the capacity to give oneself moral laws and obey them. Kant nevertheless frequently speaks of the “dignity of humanity” as well as the dignity of personality. Kant usually writes as if humanity and personality are necessarily coextensive. I think they are necessarily coextensive. For setting ends according to reason is an act of freedom—involving at least freedom in the negative sense, since no impulse or inclination can necessitate my setting its object as an end. But Kant holds that the concept of positive freedom, the capacity of giving oneself laws and having a reason that is of itself practical, flows from that negative freedom, as constituting the essence of negative freedom; conversely, the capacity of positive freedom clearly entails the capacity to set ends according to reason. Kantian ethics rests on a single fundamental value—the dignity or absolute worth of rational nature, as giving moral laws and as setting rational ends.

Kantian ethics, then, must integrate positive and negative freedom in accordance with our capacity to set our ends according to reason. To return to Kant the social critic for a moment: The social critic in Kant would therefore have made him suspicious of Dworkin’s designation of the second principle of dignity as “authenticity.” Dworkin himself defines authenticity as follows: Authenticity is the other side of self-respect. Because you take yourself seriously, you judge that living well means expressing yourself in your life, seeking a way to live that grips you as right for you and your circumstance. This need not be commitment to a single overriding ambition or to a set hierarchy of values. It may rather amount to what we call character or what Nietzsche called a “style”: a way of being that you find suited to your situation, not one drawn mindlessly from convention or the expectations or demands of others.

Dworkin rightfully notes that authenticity, or something like it, has been fundamental to philosophers such as Kierkegaard or Nietzsche. But it is undoubtedly Heidegger, in Being and Time, who turned at least that text around “authentic being towards death,” as what distinguished Dasein from the prattling “they” who simply followed social convention and did everything they could to run away from the searing and horrifying end that will greet us all. We find authentic lives when we stop running and face death,

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and it is that confrontation that returns us to ourselves and allows us to separate ourselves from the meaningless masses who live hopelessly smallminded lives. Theodor Adorno, the famous critical theorist, mocked Heideggerian authenticity as a romantic form of elitism in which the so-called greats separated themselves from ordinary people. But Kant is deeply egalitarian (and we are using that word deliberately)— for him, there are no great, authentic, distinct “men” (using that word deliberately) who face death and separate themselves from the “they” of boring conventionality. All of us, in Kant, have the capacity rationally to set our own ends—the man who collects garbage as well as Beethoven. And it is his absolute insistence on our sameness as human beings that separates Kant from the romantic idealists who emphasize the autos in autonomy to mean something like creative distinctiveness and making yourself up as you go along. So even if it would seem that Heidegger, in his disdain for the “they,” is a similar kind of social critic to Rousseau and Kant, his authenticity, according to Adorno, is fundamentally elitist, and it is that elitism that Kant challenges at the very core of his moral, ethical, and political philosophy. Dworkin claims that there is nothing elitist in his account of authenticity. In the light of the above, however, we do not think that we can return in an innocent way to the word authenticity, and that Dworkin’s second principle is better named accountability, for indeed Kant does tell us that by identifying ourselves with our aims and projects we do develop a first-person identity and develop our character over time. It is often forgotten that Kant is a thinker of the virtues, and of character building as well as of morality. As we struggle to give an account of ourselves, we all know that there are self-justifications and rationalizations (of some of which we may not even be conscious) that undermine any neat designation between the authentic and the inauthentic self. Of course we are called to account for ourselves and others, but we do not need to go deeply into the psychoanalytic literature to know that most of what we do, even as we try to live rightful lives, has to grapple with unconscious motivations that make even our best narratives in danger of self-righteous representation. Kant himself worried about moral fanaticism, particularly the moral fanaticism that thinks we can know for sure that we were doing our duty: If fanaticism in its most general sense is a deliberate overstepping of the limits of human reason, then moral fanaticism is such an overstepping of the bounds that practical pure reason sets to mankind, in that it for-

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bids us to place the subjective determining principle of correct actions, that is, their moral motive, in anything but the law itself, or to place the disposition which is thereby brought into the maxims in anything but respect for this law, and hence commands us to take as the supreme vital principle of all morality in men the thought of duty, which strikes down all arrogance as well as vain self-love. If this is so, it is not only writers of romance or sentimental educators (although they may be zealous opponents of sentimentalism), but sometimes even philosophers, nay, even the severest of all, the Stoics, that have brought in moral fanaticism instead of a sober but wise moral discipline.

So in this sense, in giving an account of oneself, one will always have to worry about the ease with which one lets one’s self off the hook, because, after all, it is just too hard to do the right thing in a thoroughly unjust world. To paraphrase the haunting question of Theodor Adorno, is it possible to live wrong life rightly? Undoubtedly the difficulty of living rightly in an unjust world is part of the appeal of what Dworkin calls the “twoperspective model” that has been so popular in Anglo-American philosophy. Thomas Nagel, for example, has forcefully argued for this two-perspective model. For Nagel, if you were truly to take the impartial point of view, and to hold that every single human life has intrinsic value, you would not easily be able to give ethical or moral reasons for treating some people better than others, including those close to you. But for Nagel, we also have a partial point of view, in which we look at the world from an “I” standpoint, and our own partial interests and our finite lives. For Nagel, we must try to find an ideal reconciliation, and he relies on Scanlon’s proceduralism, in which we would try to develop a principled reconciliation that would be acceptable to all reasonable people looking for such a reconciliation. However, he is pessimistic that such an ideal solution can be found, even if one were to follow his interpretation of Scanlon for the purposes of achieving that reconciliation.

reconciling the perspectives Dworkin’s entire book is an attempt to answer the conflict between the two perspectives by arguing that living well, since it includes the two principles of dignity, can hopefully offer a principled reconciliation between the partial

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and the impartial point of view. We are in agreement with Dworkin that living well, since it includes judgments about the right way to live and not just the most successful way to live, does offer a possible reconciliation of these two points of view. And this is undoubtedly one of the original important insights of Justice for Hedgehogs. However, Dworkin takes his argument one step further, in that he recognizes that, even if we accept that living well includes judgments about what is the right way to behave and what our obligations are to others, we still have to think about what the limits of those obligations are if we are to take Kantian morality seriously. Dworkin states the potential conflict as follows: Wealth and luck are very unevenly distributed among human beings, so we often find ourselves in a position to help strangers who are in worse case than us either generally or because they have suffered some accident or are in some special danger. Two kinds of conflict may arise on such occasions. First, we may face a conflict between our own interests and those of the people we might help. How far need we go out of our way to help them? Second, we may face a conflict about whom to help when we can only help some of them. If we can rescue only some victims of an accident and must leave others to die, how shall we decide whom to save? Together these puzzles pose the question of aid.

As we have seen, Dworkin agrees with us that Kant should not be understood as insulating our own search for a meaningful life from the mandate on us to be moral persons. For Dworkin, the categorical imperative is ultimately a matter of attitude: Kant’s principle changes the subject: it speaks not to well-being as a goal but to attitude as a guide. We must treat other people consistently with accepting that their lives are of equal objective importance to our own. Failing to help someone else is not necessarily inconsistent with that attitude. That is true of other kinds of value as well. I might recognize the enormous objective value of a great collection of paintings and yet accept no personal responsibility for protecting that collection. I might have other priorities. So I may recognize the objective importance of the lives of strangers without supposing that I must subordinate my life and interests to some collective or aggregate interest of them all, or even to any single one of them whose needs are greater than my own. I can accept with perfect sincerity that your children’s lives are no less important

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objectively than the lives of my own and yet dedicate my life to helping my children while I ignore yours. They are, after all, my children.

In approaching the reconciliation of our duties toward others with our duties to ourselves as a matter of “attitude,” Dworkin seeks to deny the irreconcilability of the conflict which Nagel posits between the perspectives of partiality and impartiality. To remind the reader, Nagel’s perspective of partiality obtains when we view the world from our own perspective and interests, and pursue them in such a way that we can flourish. Adopting the perspective of impartiality, on the other hand, makes it extremely difficult, if not impossible, to justify putting our own interests before anyone else’s. Nagel argues that we must find an ideal reconciliation between the perspectives, and follows Thomas Scanlon’s moral contractarianism to the degree that this procedure might yield a standard for a reasonable person who was seeking a reasonable reconciliation. Yet Nagel remains pessimistic that such an ideal reconciliation of the perspectives is possible. The spirit that pervades Nagel’s work is that in an unjust world, we cannot avoid tragedy, and at times, cannot avoid acting in a way that renders us profoundly disturbed about the morality of our actions. Dworkin, of course, wants us to move away from the two perspectives to one attitude, and then try to think through what this attitude would demand, and how we may have principles that can guide us in concrete situations. We agree with Dworkin that a reconciliation of these perspectives is possible. The argument we wish to advance now, however, is that Dworkin does not adequately succeed in reconciling the perspectives, because he does not fully embrace Kant’s demand that we must seek a principled harmonization of our interests with others ex ante, rather than ex post. Dworkin does indeed recognize that the appeal of what he calls ex ante arguments, including interpretations of ex ante arguments through the twoperspectives model, is that we have to approach the question of inequality prior to the real world in which it actually exists. Famously, Rawls’s veil of ignorance (under the many different interpretations Rawls gave it—including in the late 1980s, when he casts the experiment as an attempt to figure the noumenal subject and the freedom it would exercise) demands that we develop principles, prior to knowing in any full-blown sense what our interests are, and that these principles place a limit on what we can reasonably count as our interests, or at least on the degree to which we can pursue them. To quote Dworkin on the distinction between ex ante and ex post:

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I have another reason for treating Kant’s moral theory as interpretive: he takes an “ex ante” rather than an “ex post” approach to concrete moral issues and an ex ante approach requires a merger of ethical and moral values. I must explain this distinction. I can tackle questions about how I should respond to the needs and interests of others by comparing my interests and theirs at two stages in the processes through which differences between us may appear. I can focus, first, on the moment (an “ex post” moment) after some difference has appeared that puts us in an asymmetrical relation so that the immediate question is only whether I should help him rather than vice versa. I am rich and he is poor; I am healthy and he is ill; I am safe on a beach and he is drowning offshore. The immediate interests in play are apparent, fixed and antagonistic: the question is wholly whether I should or must sacrifice my immediate interests out of concern for his. Or I can focus, second, not on that ex post moment but at some earlier time—real or imagined—when no pertinent difference has yet appeared between us. I can ask what principle we should all adopt ex ante, that is, before fate has made its verdict as to which of us needs the help of the other. Should we all accept that whenever one of us is richer and the other poorer, the former will share his wealth with the latter? When my decision is ex post, it pits my immediate interests against someone else’s. When it is fully ex ante, I can treat the issue as one of my overall interests alone, because everyone’s interests are then made to seem identical.

If we take this ex ante position seriously, then there will be a principled limitation on our interests that will define them from the beginning. However, it seems to us that the demands of the ex ante position are undermined by the principles Dworkin suggests should guide us in concrete situations. When considering the extent of our obligation to help others, Dworkin argues we must consider at least three factors: the harm threatened to a victim; how much it would cost the rescuer if she were to act on behalf of the victim; and what Dworkin calls the degree of confrontation between the victim and the rescuer. The first factor is the metric of harm. We at least have to ask ourselves how seriously our failure to support the victim in the particular circumstances we confront would cripple him, not only in the short run but in the long run, in his own effort to lead a meaningful life. To quote Dworkin:

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I do not suggest what I earlier denied: that self-respect requires each person to view his own life as entirely at the service of others. Some saintly people have done that and perhaps authenticity would have permitted nothing else for them. Lives lacking a normal attention to the needs of others may also be consistent with self-respect: the life of a dedicated artist or scientist, for instance. In those lives a sense of the objective importance of other people’s fate may be visible even though it does not command rescue in all circumstances in which a less single-minded life would. But anyone who embraces projects that require him to ignore the suffering of others altogether is irredeemably either selfish or fanatical. In either case he lacks self-respect: his sense of an appropriate life is inconsistent with the right regard for the objective importance of the lives of others and therefore his own. Yes, there is an asymmetry between how we judge the needs of a victim and the cost of rescue to the rescuer. We must take into account not what everyone would regard as an important cost to a rescuer but what is important to him given his sense of what his living well requires for him. Perhaps abandoning his temple altogether would be too much to ask. But the asymmetry is limited by the condition dignity imposes on that ethical judgment.

The second standard that follows from these factors is what Dworkin defines as the metric of cost. This is fairly straightforward—even though, as Dworkin reminds us, it is always an interpretive task. I have a greater responsibility to prevent harm if it involves less interference or cost for my own life than when risk or interference would be extremely costly to me. Now, given Dworkin’s second principle of authenticity, we cannot make a judgment about the cost to us without reference to the actual individual who is making that judgment. This is because we would be denying that person self-respect. The third standard is what Dworkin calls confrontation. There are two aspects to what Dworkin means by this. The first is particularization, and the second is proximity. Dworkin gives an example to help us understand what he means by confrontation: I am on a beach and see a person drown, but I am too far away from them to be able to help. There is a man with a boat who will help me to row out to the drowning person at the cost of fifty dollars. Since I am watching the person drown, for Dworkin I clearly have a duty to pay the fifty dollars, even though I might wish that the man would do it for free. I have no trouble at all paying the fifty dollars. The boatman

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offers to make a deal with me that whenever there is no life guard on the beach, he will row out and save the next drowning victim, and he will do so whether or not I am present. For Dworkin, due to proximity, and what he further calls salience, we do not have an obligation to hire the boatman if we are not on the beach, even if we can do so at little cost, and even though we know we will be saving lives in the future. Thus, Dworkin is defending the idea that proximity demands that only people in the immediate area have the duty to eliminate risk. On this conception, our moral obligations to others depend not only on how close we are to them, but also on whether complying with the obligations would place any undue interference on our own lives. Dworkin recognizes that from Thomas Nagel’s point of view, the impartial point of view, this understanding of proximity would seem unjustifiable. We would suggest, however, that it might even be unjustifiable under Dworkin’s own notion of proximity as well. As Dworkin tells us, proximity is an interpretive concept. So what if we were to think of proximity somewhat differently? I have run into this particular boatman, and he has made me this particular offer. Therefore, what is significant is that I ran into the boatman, and that I was in proximity to him, and therefore I am walking away from an actual offer to help others that costs me almost nothing. Those who did not run into the boatman did not have to struggle with that particular moral dilemma (referring back to Dworkin’s own notion of particularization). So it is not simply our relation to the victim that is relevant, but it is also our proximity to a chance to help. Dworkin, of course, does not want to base his principle on visceral impact, but he does want to argue that there is callousness in our refusal to help someone who is immediately in front of us, which is not present in the distant suffering of others that we do not have to face head-on. We could think about confrontation somewhat differently than Dworkin himself does, which is that we are finite creatures, fated to be in a particular space at a particular time. Given our finite limitations, we simply are not in a position to be confronted with everyone who needs help in the world today, but all of us are confronted by some people who need help all the time. In Cape Town, South Africa, where there is massive unemployment, many people try to scrape together a meager daily income by taking to the streets to sell what is called The Big Issue, a magazine about daily life in Cape Town and South Africa. There is a person on almost every stoplight, and usually on both sides of the street. You can keep a stash of money on both sides of the

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car to buy as many Big Issues as possible. But even on the short drive home fetching your children from school, you inevitably run out of money. Here we see both the immediacy of confrontation, the possibility of making a difference at little cost, and the limits on what we can do in a thoroughly unjust world. And yet, we must try to save this one who is right in front of our face, even though we also have to realize that in the most profound sense, this kind of ethical action is a drop in the bucket in an unjust world. So again, what is significant is that you are actually in a position right now to do something, and this does not always involve something like buying The Big Issue, but also hiring the boatman because you are confronted by the possibility. Returning again to Kant’s notion that we have a duty ex ante to harmonize our interests with those of others, we want to point to a problem with a further distinction that Dworkin makes. This is the difference between refusing to help someone when you can and outright killing him. For a consequentialist, of course, there would be no such difference, because at the end of the day, both people are dead. To draw out his point, Dworkin gives us two what he calls “sad stories.” Two people are hiking in the desert in Arizona, and both are bitten by rattlesnakes. By coincidence, a vial of antidote is lying close by. Both people reach for it, but you are the one who actually gets the antidote. He pleads and pleads with you, but you just swallow it yourself and save your own life. The second version of this sad story is that the other hiker is closer to the antidote and grabs it. You are the one who is pleading for your life now, and just as she is about to open the antidote, you shoot her in the head and take the antidote yourself. Now for Dworkin, the first story does not violate the dignity of anyone. In the second story, the deliberate killing does violate the dignity of the woman who is killed. Here we return to our most basic disagreement with Dworkin, which is about what the ex ante harmonization of our interests actually amounts to. We are defending our position not only because we believe it is the best interpretation of Kant, which includes the harmonization of interests in the “Kingdom of Ends” as a formulation of the categorical imperative. We also do so because this notion of harmonization would yield different results in some of Dworkin’s examples, and indeed challenge the basic image he uses about how people actually lead their lives. I offer this hypothesis. The second principle insists that you have a personal responsibility for you own life, a responsibility you must not del-

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egate or ignore, and Kant’s principle requires you to recognize a parallel responsibility in others. We need to reconcile these parallel responsibilities by distinguishing between two kinds of harm you might suffer because other people, like you, are leading their own lives with their own responsibility for their own fates. The first is bare competition harm, and the second is deliberate harm. No one could even begin to lead a life if bare competition harm were forbidden. We live our lives mostly like swimmers in separate demarcated lanes. One swimmer gets the blue ribbon or the job or the lover or the house on the hill that another wants. Sometimes, when one swimmer is drowning and another can save him without losing much ground in the race, the latter does have a duty to cross lanes and help. That is the duty we studied in the last chapter. But each person may concentrate on swimming his own race without concern for the fact that if he wins another person must therefore lose. That inevitable kind of harm to others is, as the old Roman lawyers put it, damnum sine injuria. It is part of our personal responsibility—it is what makes our separate responsibilities personal—that we accept the inevitability and permissibility of competition harm.

Dworkin recognizes that the image he uses of swimmers keeping to separate lanes as they pursue their own lives may, to use his words, “seem repugnant to the siblinghood of humankind.” But our point is a different one. To put it as sharply as possible: this image is a violation of the ex ante demand put on us by the third formulation of the categorical imperative (the formulation of the “Kingdom of Ends”). The mandate of harmonization is with us simultaneously when we attempt to act morally in any particular situation. We are not first in our own lane and then, out of moral duty, think through our responsibilities to others, because the demand for the harmonization of interests forbids us to just jump into the water and start swimming without having already sought to harmonize our interests with others. There is, then, a demand that is always already there, that such a call to harmonization puts on us, that will limit the pursuit of our own interests. So while we agree with Dworkin that Kant’s notion of self-respect does not demand of us that we be saints, it also would need us to adopt a different image of how we pursue a meaningful life than that of the sole swimmer. Analytic philosophy frequently uses sad cases and stories such as the one offered by Dworkin; and Dworkin, unlike many analytic philosophers, actually speaks to why these “crazy cases,” to use his words, are important to

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us. For Dworkin, when we confront imaginary cases, we are not supposed to imagine them as if these were examples of what we might be exposed to, but rather, as hypothetical experiments in the imagination that can help us think through what integrity, in our thoroughly complicated world, might involve. We do not want to disagree with Dworkin that experiments of this sort are sometimes justified, but we need to take note that they are often drawn so as to avoid the tragedy that often inheres in complex situations in real life, and in that sense, their lack of literary depth is actually something we need to reflect on. This takes us back to one last point. For Dworkin, it is evident that the motivation for both cases is the same: to save your own life at the expense of the other. But in order to reach this conclusion, you must argue that there is a way to reconcile the attitude of dignity with the motivation of killing in any form. For Kant, our motivation in our action is paramount, and the only way in which we can truly judge whether our own action is moral or not, since we can never know in advance the consequences that even our best attempts to be moral may bring about. If one takes the motivation seriously, as Kant does, then the easy distinction between the two cases that Dworkin makes is no longer available. How much does it help us, when confronting this kind of tragedy, to argue that we are entitled, when we get to the vial of antidote first, to drink it, despite the dying pleas for help of the other snakebite victim? What the example ignores is the tragedy of what it means to exercise our moral obligations in horrible situations, and what it means to confront the full tragedy of living with the outcome. The point we are trying to make is that, since we are making judgments in such difficult situations (and they are judgments) we ordinary people do not sleep well at night with moral certainty—we live with the thought that there might have been a different outcome, even if we can find some comfort in the idea that leading an authentic (accountable) life is one that would ultimately justify that judgment made under conditions of desperation. Simply put, the examples of analytic philosophy avoid the tragedy inherent in human life, and (as we stated above) this is undoubtedly why Thomas Nagel’s book on partiality and equality has such appeal—because he always takes us back to the tragedy inherent in the unlikelihood of an ideal reconciliation of the two perspectives. Despite his call for an ideal reconciliation of his two perspectives, Nagel does not think that it is likely we will develop a philosophically coherent defense of this reconciliation. So we are left with a profound

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confrontation with the tragedy of life, particularly the tragedy that inheres in trying to live well in such an unjust world. And yet we cannot rest content with tragedy, because the substantive revolution in South Africa demands nothing less if we are to follow the interpretation of Emertius Justice Ackermann (and we do) that the constitutional transformation demands that we as citizens of South Africa collectively struggle to articulate and live up to such a reconciliation. We turn now to show how Dworkin’s two principles of dignity and, perhaps more broadly, the idea that modern constitutionalism should be rooted in the principle of respect for the dignity of all others are significant for the future of the South African constitutional project.

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Dignity and Responsibility in South African Law

One must understand two unique aspects of the revolution that took place in South Africa. First, the revolution was primarily legal in nature. That is, it was not characterized by one regime simply overthrowing another by force, and occupying the power vacuum left in its wake. The second unique aspect was that this legal revolution was not merely a formal one—South Africa was not left with a Constitution stipulating only the formal procedures by which laws have to be passed in order to be valid and minimal requirements for executive compliance. Rather, it was left with a Constitution containing a historically unprecedented array of comprehensive human rights. Moreover, section 1 of the final Constitution expressly states that the Constitution (and therefore, by virtue of section 2, all South African law and conduct), and in fact South Africa as a state, is grounded in the interrelated principles of dignity, equality, and freedom. The unambiguous wording of section 1 makes it clear that South Africa’s Constitution is neither a procedural one, nor one whose ends can be served through an interpretation based on soft positivism. Quite the contrary—the 106

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Constitution’s acknowledgment that it is itself grounded in dignity, equality, and freedom shows us that what is required in any interpretation of the Constitution and South African law is for the law to transcend itself, and to ground itself in the concrete ethical principles that were wholly absent from apartheid law and broader society. Indeed, this point is enhanced by the interpretation that has been given to section 10 of the Constitution, which states: “Everyone has inherent dignity and the right to have their dignity respected and protected.” This section can be interpreted such as to separate two aspects: that which comes before the “and” (“[e]veryone has inherent dignity”), and that which comes after (“[everyone has] the right to have their dignity respected and protected”). Under this interpretation, the statement “everyone has inherent dignity” is rooted in the moral conception of humanity and personality that we have defended earlier in this essay through Immanuel Kant (even if we were to argue that it could be defended through the South African ideal of uBuntu). The importance of this is that the entire constitution is rooted in a moral Grundnorm, and it is that Grundnorm which serves as the basis for a holistic interpretation of all the clauses (not only the Bill of Rights) of the entire Constitution. Therefore, interpretation of the Constitution should not only be thought holistically, so that no part of it is rendered redundant, but each aspect of the Constitution must ultimately seek integrity to the mandate of the substantive revolution, which is that the dignity of each human being must be respected. Dworkin defends a general theory of interpretation as necessarily being holistic, and we want to remind the reader here of Dworkin’s defense of an active holistic theory of interpretation, even if we are now defending only a specific instance of it: Interpretation is pervasively holistic. An interpretation weaves together hosts of values and assumptions of very different kinds, drawn from very different kinds of judgment or experience, and the network of values that figure in an interpretive case accepts no hierarchy of dominance and subordination. The network faces the challenge of conviction as a whole; if any one strand is changed, the result may be locally seismic. Someone’s second-best interpretation of a poem or a picture may be radically different from his first best; a third interpretation that is only slightly different from the first may seem much worse. . . . True, some persuasive philosophers argue that science is holistic too. . . . But holism in science, if we accept it at all, is almost entirely academic and passive:

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it can play no part in anyone’s practical life. . . . [T]he difference between what one responsible scientist thinks about the world we actually encounter and what others think, because he accepts some controversial opinion that they reject, is generally small compared to what they all think in common. Matters stand very differently in interpretation: literary critics or constitutional lawyers whose values are strikingly different in some pertinent respect are likely to disagree across a very broad area of interpretive conviction. . . . In interpretation, holism is not passive; it is very active.

Irrespective of how Law’s Empire might apply to the unique case of South African legal interpretation, the subsequent body of his work certainly promotes the interpretation of the Constitution which we have offered above. As has become clear, Dworkin, even when he invokes an idealized “we” (rooted in something like Hegel’s Sittlichkeit) does so only as one philosophical defense of the two principles of dignity. In Justice for Hedgehogs, he has clearly embraced the work of Immanuel Kant, and indeed defends his two principles as an interpretive approach to Kant’s moral philosophy. Dworkin also clearly states that law is inseparable from the political morality embodied in its principles, and although he does not use Kantian language in defending the realm of legality as that of a sphere of external freedom, his ultimate point is similar to Kant’s—law is ultimately an interpretive moral project as it is inseparable from the political morality of the society in which it is embedded. This insight of Dworkin’s later work is particularly important for South Africa, precisely because the South African Constitution embodies a revolutionary break with the past—not just with the laws of apartheid (as if these laws could be separated from the overall political morality in which they were embedded), but as a profound moral shift in the entire fabric of society. In the interpretation we have given to sections 1 and 10 of the Bill of Rights, that moral shift is from a society in which the majority of the population were treated with horrifying disrespect and a denial of their humanity to one which is grounded in mandate of respect for all others. We have read these sections as a moral mandate that infuses the entire Constitution and embodies the revolutionary break with the past. So the question of whether there was a revolution in South Africa is not merely an aside. If one does not defend the South African Constitution as an embodiment of the substantive revolution in which respect for the dig-

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nity of all others breaks completely with the political morality of apartheid, rightfully described as a crime against humanity, then we are left with a failure of the promise of complete transformation of an utterly immoral way of life. An attack on the Constitution’s impact on the private law, simply put, denies that there was a substantive revolution at all, and that there is in fact no such thing as a substantive revolution, because such a revolution cannot ground itself legally. Hart is oftentimes called upon to justify this position, although we believe that Hart himself might well have agreed that revolution was necessary in South Africa. But the deeper point here is that Dworkin’s lifetime project of defending law as a normative adherence to principle, well before he fully works out his Kantian defense of the two principles of dignity and how a modern Constitution must be rooted in them, aspired to break with positivist understandings of law that could not, as he wrote in his first book, take rights seriously. But by Is Democracy Possible Here? and Justice for Hedgehogs, Dworkin has clarified the different aspects of legality, and shown us why the aspirational aspect of legality, even if understood as what the rule of law embodies, clearly now takes us to a constitutionalism that is rooted in the two principles of dignity. As we have argued, sections 8 and 39(2) guide constitutional interpretation and applicability. We have further argued that these sections themselves are part of an aspirational ideal of legality, inseparable from the idea of dignity in which the entire Constitution is rooted. Ultimately, if the Constitution aspires to ground itself in dignity, and if sections 8 and 39(2) are the mechanisms through which the Constitution implements that vision in the law, then it must follow that sections 8 and 39(2) are inseparably tied to dignity. If we understand Dworkin’s interpretive approach to law as it is contained in Justice for Hedgehogs—that integrity in law means fidelity to dignity—we can see that sections 8 and 39(2) are exemplary of the most recent developments in his legal theory. Thus, arguments for and against indirect and direct horizontality—the most original and unique section of the Constitution, since no other Constitution in the world has direct horizontality—are not simply arguments about the application of the law. As we have shown, how one interprets sections 8 and 39(2), as mandated by the substantive revolution and the principles of dignity, lies at the very heart of the defense of the new Constitution. And this is why we have spent time in this book reviewing the carefully crafted connection between these two sections of the Constitution. In a profound sense, sections 8 and 39(2) seek to guarantee the integrity of the substantive revolution as these clauses

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mandate that courts review all laws in the light of the new political morality to which South Africa now must aspire, if it is truly to move beyond the horrific legacies of apartheid. We now want to develop two of Dworkin’s own notions of responsibility to explain the special responsibility that falls, for example, not only on the white perpetrators of apartheid, but also on the white beneficiaries of apartheid, which includes the entire white population of present-day South Africa. We want to argue that Dworkin’s notions of assignment responsibility and liability responsibility are relevant here. First, whites have assignment responsibility precisely because their position of privilege in all aspects of life is inseparable from the imposed social reality of apartheid. Therefore, it is they who are under a special moral mandate, by virtue of that position of privilege, to engage in restitutional activities in all walks of life in South Africa. Second, we come to liability responsibility. Dworkin gives the example of a corporation sometimes being responsible for the acts of its workers. An obvious analogy is that those who voted for the National Party are responsible for the horrific results of that party’s policies (including the implementation of apartheid). And again, it was a substantial majority of the white population who voted for the National Party and kept it in power. Of course, it is also a moral judgment to take on that responsibility and to accept that one has been assigned it, and that one must take on the consequences of the party for which one voted, and for the consequences of what was implemented by that party. Ackermann does not use Dworkin’s terms, but in a deep sense he agrees that the self-respect of whites was horribly violated, as was their ability to live well, during the apartheid years. That the black and “colored” majority could not live well when all their political rights had been stripped is, of course, obvious. Therefore, if living well in South Africa includes living rightfully (as both Justice Ackermann, Dworkin, and indeed Kant argue in different ways), then one is going to have to move well beyond simplistic reconciliations of our moral duties with our interests and seriously take on both assignment and liability responsibility as part of the effort of white people to gain their self-respect. Whatever our disagreements are with Dworkin’s attempt at this reconciliation, we want to conclude what has been our central argument thus far by saying that Dworkin, in his latest work, has moved beyond some of the ambiguities of the status of integrity in Law’s Empire. He now adopts a very clear defense of the aspirational aspect of legality, which is rooted in a

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political morality embedded in the two principles of dignity, equality, and freedom; these principles, and his account of responsibility can help us begin to understand what is ethically, morally, and legally required of citizens in the new dispensation in South Africa. As Emeritus Justice Ackermann tells us, there can be no final constitution in South Africa because ultimately all of its citizens are responsible for upholding the value of the Constitution: The most sophisticated tools have been fashioned for the courts to enforce, promote, and protect the Constitution and its values. But the ultimate fate of the Constitution, a bridge with a very long span, will not be decided by the jurisprudence of its courts alone, however devoted and inspired that may prove to be. A transforming Constitution such as ours will only succeed if everyone in both government and civil society at all levels embraces and lives out its values and its demands. It will only succeed if restitutional equality becomes a reality and basic material needs are met, because it borders on the obscene to preach human dignity to the homeless and the starving. This must, however, be achieved in a manner consonant with the human dignity of all. We are only at the end of the beginning.

Conclusion

As we have indicated, the South African Constitution is under attack from all sides. There was indeed a unique revolution in 1993, precisely because power was handed over within the constraints of law. Most of the revolutions of the twentieth century, as Hannah Arendt has powerfully reminded us, involved both violent overthrow of the previous government and the establishment of something new. What it is that is new, as Arendt also argues, is the establishment of freedom. But of course the very idea that freedom can be established as the basis of the Constitution seems to present a paradox, at least if one defines freedom as being antithetical to the necessity of obligation, and more specifically to moral obligation. This is why so much writing in Anglo-American political philosophy struggles with the question of why any one of us would agree to be constrained by the law. In Immanuel Kant, moral obligation is not only consistent with freedom, it is its highest expression. For when we represent ourselves as laying down a law unto ourselves, and act from the dictates of practical reason, we are upholding the disposition of human beings that Kant called personality and with it, 112

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the dignity of that personality. So for Kant, freedom is in a profound sense limited by the conditions of its own exercise. In Kant, then, law is the realm of external freedom, in which we aspire to coordinate, under an ideal social contract, our freedom with that of all others. Thus, in a certain sense, as Dworkin so clearly recognizes, Kantian freedom in principle can be established as the basis of a Constitution. The infinite worth of our humanity and the dignity of our personality need not conflict with the law, but can instead be the very Grundnorm which represents the law’s highest aspirations in a modern constitution. Integrity then, in Dworkin’s latest works, is ultimately integrity to the two principles of dignity, as these represent a political morality embodied in law. South Africa is often described as having made a “peaceful transition” from apartheid to democracy. This is, of course, a myth, since it was preceded by decades of violent struggle. However, as we have stated, the transition was a unique one in that it consisted of a substantive legal revolution that, although it largely preserved the preexisting legal order, completely altered the foundations on which that order is built. Unfortunately, a revolution of this kind is fragile almost by definition, since the old order (including the legal order) is not simply done in and done away with. Given the fragility and the uniqueness of this kind of revolution, it is not immune to failure. Therefore, in a profound sense it is up to all South Africans to uphold the moral mandate of dignity embodied in the Constitution in all aspects of their lives. In this regard, we have argued that all white people in South Africa have a special assignment responsibility to right the horrific injustices of the past. But those of us in the legal community also have a particular responsibility—which is to uphold the substantive revolution and to work together to develop a jurisprudence worthy of it. We have argued throughout this book that Ronald Dworkin’s most recent understanding of law’s integrity and his interpretive approach to Kant is an important ally for those who wish to defend and stand by this revolution. It has often been said that the price of freedom is eternal vigilance. Unfortunately, in South Africa, this vigil is not being kept, and as a consequence, an unholy alliance is waiting to be formed by two unlikely factions. On one hand, there are those advocating a view that the Constitution is overly constraining the executive in the pursuit of transformation, and thus argue that the Constitution must have a minimal impact on the public law. On the other hand, there are those who, as we have demonstrated, argue that the Constitution should have only a minimal impact on the private

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law. Once these two strands of attack converge, the Constitution and its promise of a new society truly begins to unravel. Thus, there has never been a more important time for legal academics and South Africans in general to participate in a collaborative interpretive project that protects the promise of the substantive legal revolution, and that can contribute to the forging of a community that can truly be said to possess integrity.

Notes introduction 1. S v. Makwanyane and Another [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391 (CC). 2. Rosa Luxemburg, “The Russian Revolution,” in The Russian Revolution, and Leninism or Marxism? (Ann Arbor: University of Michigan Press, 2000), 70. 3. Drucilla Cornell, Transformations (New York: Routledge, 1993). 4. Ronald Dworkin, Sovereign Virtue (Cambridge, MA: Harvard University Press, 2000); Justice in Robes (Cambridge, MA: Belknap Press, 2006); Is Democracy Possible Here? (Princeton, NJ: Princeton University Press, 2006); and Justice for Hedgehogs (Cambridge, MA: Belknap Press, 2011). 5. Dworkin, Justice in Robes, 168. 6. H. L. A. Hart, The Concept of Law (Oxford: Oxford University Press, 1997).

1. integrity to the past 1. Dworkin, Justice in Robes, 6–11. 2. Ibid., 7. 3. Ibid. 4. Ibid., 31. 5. Ibid., 31–32. 6. Ibid., 32 (“John Austin . . . said he was explicating the ‘meaning’ of law”); ibid. 34 (Hart argued that “propositions of law are true” if they have “the community’s acceptance.”) 7. McLoughlin v. O’Brian (1982) 2 All ER 298. Dworkin uses this case as his primary example throughout Law’s Empire (Cambridge, MA: Belknap Press, 1986). 115

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8. McLoughlin, 301; Dworkin, Law’s Empire. 9. Dworkin, Law’s Empire, 27–28. 10. Ibid., 28. 11. Ibid., 39. 12. Ibid., 39–42. 13. Ibid., 42–43. 14. Ibid., 32–33. 15. Ibid. 16. Ibid., 42–43. 17. See Ludwig Wittgenstein, Philosophical Investigations, trans. G. Anscombe (Oxford: Basil Blackwell, 1958), 220. 18. Ibid., 224. 19. Dworkin, Law’s Empire, 79–80, 83. 20. Ibid., 78. 21. Ibid., 83–85. This is exactly the lesson of the later Wittgenstein. It is precisely because we are “inside” our form of life that we cannot know that the beyond is not “there”—an insight that legitimates Wittgenstein’s lifelong interest in mysticism, if such an interest needs to be legitimated. There is, then, no rigid divide between the immanent and the transcendent. 22. Ibid., 80–83. 23. Ibid., 78–79. 24. Ibid., 79. 25. Ibid., 63. 26. Ibid., 47. 27. Ibid. 28. Ibid., 48–49, 122. 29. Ibid., 47. 30. Ibid., 55, citing Hans Gadamer, Truth and Method (New York: Seabury Press, 1979). 31. Ibid., 58–59. 32. Ibid., 57. 33. Ibid., 97. 34. See, for example, John Rawls, A Theory of Justice (Cambridge, MA: Belknap Press, 1971), 10–22, 118–192, presenting “a conception of justice which generalises and carries to a higher level of abstraction the familiar theory of the social contract.” 35. Dworkin, Law’s Empire, 197. 36. Ibid., 199. 37. Ibid. 38. Ibid., 200.

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39. Ibid., 200–201. 40. Ibid., 201. 41. Ibid., 93. 42. Ibid., 243. 43. Ibid., 219. 44. Ibid., 255. 45. Ibid., 248. 46. Ibid., 218. 47. Ibid., 211. 48. Ibid., 210. 49. Ibid., 209–210. 50. Ibid., 115. 51. Ibid., 210. 52. Ibid. 53. Ibid., 209. 54. Ibid., 95. 55. Ibid., 229. 56. Ibid., 229–232. 57. Ronald Dworkin, “Law as Interpretation” Texas Law Review 60 (1982): 527, 542.

2. the hegelian conception of a properly constituted community 1. G. W. F. Hegel, Phenomenology of Spirit, trans. A. V. Miller (Oxford: Oxford University Press, 1977). 2. G. W. F. Hegel, Philosophy of Right, trans. T. Knox (London: Oxford University Press, 1952). 3. Hegel, Phenomenology of Spirit, 90–110. 4. Ibid., 178–198. 5. Ibid., 166–177. 6. Ibid., 187. 7. Ibid., 190–191. 8. Ibid., 90, 187. 9. Ibid., 192. 10. Ibid., 76–77. 11. Ibid., 177. 12. Ibid. 13. G. W. F. Hegel, Philosophy of Mind, rev. ed., trans. W. Wallace and A. V. Miller (Oxford: Clarendon Press, 2007), §490. 14. See Walter Kaufmann, Hegel: Texts and Commentary (New York: An-

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chor Books, 1966), 21, noting that “education” is the best, but not an entirely adequate, translation for Bildung, and that the German literary genre Bildungsroman, novels relating to the education of the hero, best captures its sense. 15. See Leo Rauch, From Jena to Heidelberg: Two Views of Recognition, in Hegel’s Philosophy of Spirit, ed. Peter Stillman (Albany: State University of New York Press, 1986), 47, spinning out the sense, “love,” and “struggle” in which Hegel used the term Anerkennung; Samuel Assefa, Commentary on “From Jena to Heidelberg: Two views of recognition,” in ibid., arguing that in Hegel “the struggle for recognition” is the term’s dominant sense. 16. Hegel, Philosophy of Right, 4. 17. Ibid., 217. For Hegel, the right of private property is dependent upon the socially established right of personality (40–41). The right to own property is not and cannot be reduced to an immediate relationship between the appropriating subject and an external object. The simple, immediate relationship of appropriation is possession, not property (49). Property is a social relation, dependent on an already existing legal system (45). The right of property is justified as the embodiment—if only on an abstract plane—of relations of reciprocal recognition: I recognize you and you recognize me as a subject capable of putting the will into an external object, thus making it one’s own. The thing that embodies my will through the act of ownership is no longer just a mere physical thing. It is a medium through which my personality is given presence and is recognized by others. As Hegel explains in Philosophy of Mind, “[t]he thing [Sache] is the means by which the extremes meet in one. These extremes are the persons” (491). We respect the other’s right to his property because we acknowledge him as a selfconscious being capable of embodying his will in an object. Property, however, is a social relation, not only in the sense that it takes place within a pregiven social context of binding ethical relations and is a legally regulated mode of behavior, but because the object of property is itself spiritualized through the mediation of the established means of ownership. Property, then, is doubly mediated, as a structure of reciprocally binding relationships between persons and as a social relation between the possessed object and the owning subject. Hegel replaces the myth of the isolated individual in a state of nature with a social conception of how the act of “possession” is legitimated as property through the mutually recognized rights of persons to pre-empt externality for their own purposes. There is, then, no “bright line” in Hegel between the subject and object, as Margaret Radin—in “Market-Inalienability,” Harvard Law Review 100 (1987): 1849, 1891–1898—has argued. The very opposite is the case. Property is ultimately a relationship between persons. The true object of property, in other words, is an intersubjective relationship. If there is a central

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message of Hegel’s system, whether in the Phenomenology or in the Logic, it is that there can be no “bright line” between subject and object. Radin’s misreading stems from her failure to grasp correctly the significance of the structure of the Philosophy of Right. The Philosophy of Right begins with the immediacy of a description of the positive law as it has been codified (see Hegel, Philosophy of Right, 37–74). The description of abstract right with which Hegel begins is not a justification of it in the sense of a traditional argument. Hegel, in other words, is not defending the traditional, historical account of the sphere of abstract right as it was recorded in the jurisprudence of his day. At the time, the distinction between subject and object that Radin emphasizes, indeed, was made. Hegel is not endorsing this divide. It is only once we understand the relationship of abstract right to the whole of the modern state that we can uncover its truth. The Philosophy of Right is not a justification of the traditional conception of property and its relationship to personhood. Instead, the Philosophy of Right sets out to justify—although this is not how Hegel would have explained it—the curtailment of the sphere of abstract right and its correspondingly limited conception of the person through an appeal to the greater institutional context of the community, which reveals the “truth” of the legal recognition of property as the actualized relations of reciprocal symmetry. Although Hegel did not advocate the abolition of private property, he was a severe critic of civil society and the sphere of abstract right that grows out of it; see, e.g., Merold Westphal, “Hegel’s Radical Idealism: Family and State as Ethical Communities,” in The State and Civil Society, ed. Zbigniew Pelczynski (Cambridge: Cambridge University Press, 19840), explicating Hegel’s notion of the state as constituting its citizens in the same way that a family creates the personality of its member, and as an ideal greatly at odds with the civil society of his day. 18. Hegel, Philosophy of Right, 251–260. 19. The citizen must not only be willing to relinquish at least some of his property to the greater demands of the state, such as the need for redistribution through taxation (Hegel, Philosophy of Right, 239–242), he must also be willing to give up his life in war (326). 20. Ibid., 142–157. 21. Ibid., 71–75. 22. Seyla Benhabib, “Obligation, Contract, and Exchange: On the Significance of Hegel’s Abstract Right,” in Pelczynski, The State and Civil Society, 164. 23. Hegel, Philosophy of Right, 57, 65–67. 24. Ibid., 38. 25. Ibid., 66–67.

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26. Ibid., 67. 27. Ibid., 66–67. 28. Ibid., 75. 29. Ibid., 182. The “values” of the market, such as efficiency, are also subordinated to the relations of reciprocal symmetry, which are essential for the continuation of civil society itself. If we all were allowed to sell ourselves into slavery, there would no longer be a market. In Hegel, the modern state is a complex unity of differentiated, if interrelated, social spheres. The state protects the sphere of the market, but not as a good in and of itself. The condition necessary for the sphere of the market to continue to exist, the recognition of each one of us as a subject of right, also provides a limiting principle by which the market is curtailed. The curtailment of the market is also justified in the name of the institutional differentiation that is the hallmark of the modern state. The community is the whole and not the sphere of civil society. 30. Reciprocal symmetry cannot be reduced to the traditional, contractual notion of reciprocity as an exchange in which there is a promise that if good A is received, payment in some kind will follow. This view of reciprocity would be short-term, only applicable to the exchange once the promise between the parties had been made. This notion of reciprocity of exchangeable goods in a transaction is dependent upon the more fundamental reciprocity of mutual recognition. I respect my promise to you and the need for reciprocity in a transaction because I recognize you as a person like myself. Hegelian reciprocity implies our stance toward one another as legal persons over time. The democratic state embodies the ethical relation of mutual recognition, in which individuals recognize one another as equals, not only before the law, but also in their own relationships to one another as persons who can no longer be identified with established status hierarchies. The positive law expresses an achieved communal reality. 31. Hegel, Philosophy of Right, 36. 32. See Karl Marx, Critique of Hegel’s “Philosophy of Right,” trans. A. Jolin and J. O. Malley (Cambridge: Cambridge University Press 1970). 33. Ibid. 34. Hegel, Philosophy of Right, 211–212. 35. Ibid., 132. 36. Ibid., 215. 37. Ibid., 219. 38. Ibid., 221–228. 39. Ibid., 217. 40. Ibid., 215. 41. Ibid., 222. 42. Ibid., 219, 221.

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43. Ibid., 226. 44. Ibid. 45. Hans Gadamer, Truth and Method (New York: Seabury Press 1979), 352. 46. Hegel, Philosophy of Right, 155. 47. Ibid., 146–147. 48. Hegel, Phenomenology, 177. 49. Hegel, Philosophy of Right, 147. 50. Ibid., 150, 257. 51. Ibid., 142–143. 52. Ronald Dworkin, A Matter of Principle (Cambridge, MA: Harvard University Press, 1985), 214–220. 53. Hegel, Philosophy of Right, 151. Our objective, institutionalized legal context, in other words, recognizes the “I” as a social reality. The state protects the sphere of private conscience reinforced by the legal recognition of the person as a being who cannot be owned by the state or by another individual. The disjunction between the self and her social role is itself an “objective” reality in our social world. As an account of the actual, the Philosophy of Right narrates the truth of what has already been achieved. In Hegel, real potential (or the essence of the real) ultimately finds its complete fulfillment. Potential no longer serves as more than that which is inherent in social reality itself. Nevertheless, it would be a serious misreading of Hegel to conclude that his practical philosophy is a mere apology for what is. Hegel only begins with what is immediate, and he does so in order to show that its truth is not as immediate as it initially appeared. Hegel’s entire system rests on the distinction between what is actual and what exists. An entity whose essence has been actualized, whether it be a state or a person, appears as what it truly is. There are certainly entities that fail to appear as their true essence. We can judge these as inadequate expressions of their true essence. The philosophy of right is the philosophy of the truth of actuality, not of the truth of what is. 54. We can easily draw a connection between Hegel’s notion of Sittlichkeit and the later Wittgenstein’s emphasis on the communitarian or sittlich character of linguistic meaning. Wittgenstein believed that the world we live in— including our ethical reality—is socially constructed in language. See Ludwig Wittgenstein, Philosophical Investigations, trans. G Anscombe (Oxford: Basil Blackwell, 1958), 206–210, stating that our world is characterized by social rules, which we express through language. We learn to refer, to make sense, through our participation in a pregiven linguistic community. To the degree we seek to communicate, we are obliged to follow the rules, to participate in the established practices of the community that define the parameters of what it means to make sense.

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55. Adriaan Peperzak, Philosophy and Politics: A Commentary on the Preface to Hegel’s Philosophy of Right (Boston, MA: Martinus Nijhoff, 1987), 9. 56. Hegel, Philosophy of Right, 216. 57. See Ludwig Wittgenstien, Tractatus Logico-Philosophicus, trans. D. Rears and B. McGuiness (London: Routledge and Kegan Paul, 1958), 6, 42. 58. Hegel, Philosophy of Right, 146. 59. We use the word possibility deliberately. There is no magic in the appeal to Sittlichkeit that guarantees our shared ethical reality will not be effectively corroded. But precisely because we are inside our form of life and therefore cannot delimit the entire repertoire of community standards, we cannot know for sure that ethical reconstruction and immanent critique have been rendered impossible. Hope and the responsibility for which it calls always remain.

3. law’s empire in south africa 1. See also Aileen Kavanagh, “The Idea of a Living Constitution,” Canadian Journal of Law and Jurisprudence 16 (2003): 55, 58–60; Joseph Raz, “Interpretation without Retrieval,” in Between Authority and Interpretation (Oxford: Oxford University Press, 2009). 2. Dworkin, Law’s Empire. See also Raz, “On the Authority and Interpretation of Constitutions: Some Preliminaries,” in Between Authority and Interpretation. 3. See Raz, “On the Authority and Interpretation of Constitutions,” 323– 329; Philip Bobbit, “Constitutional Law and Interpretation” in A Companion to Philosophy of Law and Legal Theory, ed. Dennis Patterson, 2nd ed. (Oxford: Wiley-Blackwell, 2010), 133. 4. Justice Sachs in S v. Mhlungu and Others [1995] ZACC 4; 1995 (3) SA 867; 1995 (7) BCLR 793 (CC), ¶ 121n32. 5. Ibid., 58–59. 6. S v. Zuma and Others [1995] ZACC 1; 1995 (2) SA 642; 1995 (4) BCLR 401 (SA), paras 17–18. On the relevance of legislative history, see S v. Makwanyane and Another [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391 (CC), ¶¶ 13–25. 7. Bertie Van Zyl (Pty) Ltd and Another v. Minister for Safety and Security and Others [2009] ZACC 11; 2010 (2) SA 181 (CC); 2009 (10) BCLR 978 (CC), ¶ 22. 8. Ibid., ¶ 23. 9. Investigating Directorate: Serious Economic Offences and Others v. Hyundai Motor Distributors (Pty) Ltd and Others In re: Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others [2000] ZACC 12; 2000 (10) BCLR 1079; 2001 (1) SA 545 (CC) (August 25, 2000), ¶ 24. 10. Makwanyane, ¶ 9. 11. Heinz Klug, “South Africa: From Constitutional Promise to Social

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Transformation,” in Interpreting Constitutions: A Comparative Study, ed. Jeffrey Goldsworthy (New York: Oxford University Press, 2007), 296; Denis Davis, Democracy and Deliberation: Transformation and the South African Legal Order (Cape Town: Juta, 1999), 24–30. 12. Zuma, ¶¶ 14–15. 13. James Buchanan & Co Ltd v. Babco Forwarding & Shipping (UK) Ltd (1977) 2 WLR 107, ¶ 112, quoted in Mhlungu, ¶ 122. 14. R v. Big M Drug Mart (1985) 13 CRR 64, ¶103, cited in Zuma, ¶ 15. See also Hunter v. Southam Inc. [1984] 2 S.C.R. 145. 15. Soobramoney v. Minister of Health (Kwazulu-Natal) [1997] ZACC 17; 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (CC), ¶ 16; Makwanyane, ¶¶ 9–10. 16. See further the judgment of Justice Ackermann in Du Plessis and Others v. De Klerk and Another [1996] ZACC 10; 1996 (3) SA 850; 1996 (5) BCLR 658 (CC); George Devenish, Interpretation of Statutes (Cape Town: Juta, 1992); Etienne Mureinik, “Administrative Law in South Africa,” South African Law Journal 103 (1986): 615. 17. Makwanyane, ¶ 261 (per Justice Mahomed). See also Klug, Constitutional Promise, 314–315. That the court understands the localized nature of a theory of constitutional interpretation is evinced also by its approach to foreign law, to which it resorts freely but adopts cautiously, as the constitutional dispensations of other countries, and their social realities, are very different to those in South Africa. 18. Mhlungu, ¶ 127. 19. Ibid., ¶ 129. 20. Klug, Constitutional Promise, 276; L. W. H. Ackermann, “The Legal Nature of the South African Constitutional Revolution,” New Zealand Law Review (2004): 633; Pius Langa, “Transformative Constitutionalism,” Stellenbosch Law Review 3 (2006): 351, 352; Dikgang Moseneke, “The Fourth Bram Fischer Memorial Lecture: Transformative Adjudication,” South African Journal of Human Rights 18 (2002): 309; Etienne Mureinik, “A Bridge to Where? Introducing the Interim Bill of Rights,” South African Journal of Human Rights 10 (1994): 31. 21. Carmichele v. Minister for Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC), ¶ 39. 22. Ibid., ¶ 54. 23. Immanuel Kant, Critique of the Power of Judgment (Cambridge: Cambridge University Press, 2001). 24. Carmichele, ¶ 39. 25. Ibid., ¶¶ 36 and 39. 26. K v. Minister of Safety and Security [2005] ZACC 8; 2005 (6) SA 419 (CC); 2005 (9) BCLR 835 (CC) ; [2005] 8 BLLR 749 (CC), ¶ 17.

124

Notes to pages 51–70

27. Everfresh Market Virginia (Pty) Ltd v. Shoprite Checkers (Pty) Ltd (2012) (1) SA 256 (CC), ¶ 34 (emphasis added). 28. Anton Fagan, “The Secondary Role of the Spirit, Purport and Objects of the Bill of Rights in the Common Law’s Development,” South African Law Journal 127(4) (2010): 611; “The Confusions of K,” South African Law Journal 126 (2009): 154; Anton Fagan, “Reconsidering Carmichele,” South African Law Journal 125 (2008): 659; “Section 39(2) and Political Integrity,” in The Practice of Integrity: Reflections on Ronald Dworkin and South African Law, ed. Francois du Bois (Cape Town: Juta, 2005), 117. 29. Fagan, Confusions of K, 181–192. 30. Dworkin, Law’s Empire, 219. 31. Ibid., 225. 32. Ibid., 225–226. 33. Ibid., 228–232. 34. Drucilla Cornell and Kenneth Michael Panfilio, Symbolic Forms for a New Humanity (New York: Fordham University Press, 2010). 35. Paget Henry, Caliban’s Reason: Introducing Afro-Caribbean Philosophy (New York: Routledge, 2000). 36. Dworkin, Law’s Empire, 357–358. 37. One of the authors of this paper has previously called this process of legal interpretation “recollective imagination.” See Drucilla Cornell, Transformations: Recollective Imagination and Sexual Difference (New York: Routledge, 1993). 38. Ronald Dworkin, “Keynote Address,” Acta Juridica (2004): 1, 16. 39. Dworkin, Law’s Empire, 230–231.

4. the quest for unity of value 1. Hart, Concept of Law, 210. 2. Ibid., 246. 3. Ibid., 250. 4. Ibid., 253–254. 5. Ibid., 41–42. 6. Dworkin, Justice in Robes, 34. 7. Ibid., 35. 8. Ibid., 2. 9. Ibid., 2–4. 10. Ibid., 4–5. 11. Ronald Dworkin, Taking Rights Seriously (New York: Bloomsbury, 1977). 12. Dworkin, Justice in Robes, 5. 13. Ibid. 14. Ibid., 9.

Notes to pages 70–80

125

15. Ibid. 16. Ibid., 10. 17. Ibid., 10–11. 18. Ibid., 12. 19. Ibid., 12–13. 20. Ibid., 13. 21. Ibid., 13. 22. Ibid., 14. Throughout Justice in Robes, Dworkin uses the imagined case of Mrs. Sorenson who has taken a certain type of medication for many years and has suffered serious heart damage because of it. It turns out that the medication has serious side effects which its manufacturers were negligent in not discovering (7–8, 143). The medication is manufactured by a number of different companies. She cannot remember, and thus cannot prove, which drug company manufactured the particular drug that she took. She took pills made by one or more of them, but undoubtedly not from all of them. Thus, the key question in Mrs. Sorenson’s case is which manufacturers will be held responsible and to what degree. 23. Ibid., 18. 24. Ibid., 21. 25. Ibid., 26–33. 26. Ibid., 172. 27. Ibid., 174–175. 28. Ibid., 172–173. 29. Ibid., 74. 30. Ibid., 175–177. 31. Ibid., 154. 32. Ibid., 156–159. 33. Ibid., 161. 34. John Rawls, Political Liberalism (New York: Columbia University Press, 2005). 35. Dworkin, Justice in Robes, 161. 36. Ibid., 25. 37. Ibid., 24–25. 38. Ronald Dworkin, Is Democracy Possible Here? (Princeton, NJ: Princeton University Press, 2006), 11–21. 39. Dworkin, Justice in Robes, 218.

5. integrity to dignity 1. Dworkin, Is Democracy Possible Here?, 9. 2. Ibid., 10. 3. Ibid., 12–13.

126

Notes to pages 80–93

4. Ibid., 14. 5. Ibid., 16. 6. Ibid., 10. 7. Ibid., 17. 8. Ibid., 19. 9. Ibid., 10–11. 10. Ibid., 9. 11. Ibid., 8–9. 12. See, e.g., L. W. H. Ackermann, “The Legal Nature of the South African Constitutional Revolution” New Zealand Law Review 4 (2004): 633; S v. Dodo 2001 (3) SA 382 (CC). 13. For an explanation as to why it is mistaken to speak of law as other than a form of morality, see Allen Wood, “Human Dignity, Rights and the Realm of Ends,” in Dignity, Freedom and the Post-Apartheid Legal Order, ed. A. J. Barnard-Naudé et al. (Cape Town: Juta, 2007), 54–56 14. Dworkin, Justice for Hedgehogs, 227–251. 15. Ibid., 244 (footnote omitted). 16. Ibid., 228–229 (footnote omitted). 17. Ibid., 102. 18. Ibid., 102–103. 19. Ibid. 20. Ibid. 21. Ibid., 110. 22. Ibid., 255–256 (footnote omitted). 23. Ibid., 148, 152. 24. Ibid., 153–154. 25. Ibid., 265. 26. Ibid., 267. 27. Ibid., 266–267. 28. Immanuel Kant, Religion Within the Boundaries of Mere Reason and Other Writings, ed. and trans. A. Wood and G. Di Giovanni (Cambridge: Cambridge University Press, 1998). 29. Allen Wood, Kantian Ethics (Cambridge: Cambridge University Press, 2007), 91 (citations omitted). 30. Immanuel Kant, Critique of Practical Reason, trans. T. Abbot (Amherst, NY: Prometheus Books, 2006), 39. 31. Jean-Jacques Rousseau, “The Social Contract,” in The Social Contract and Discourses, trans. G. D. H. Cole (New York: Everyman 1993), bk. 3, chap. 15, 266. 32. Immanuel Kant, Perpetual Peace and Other Essays, trans. T. Humphrey trans. (Hackett, 1983).

Notes to pages 93–105

127

33. Wood, Kantian Ethics, 192 (citations omitted). 34. Dworkin, Justice for Hedgehogs, 209–210. 35. This is the jargon of authenticity. 36. Dworkin, Justice for Hedgehogs, 210. 37. Judith Butler, Giving an Account of Oneself (New York: Fordham University Press, 2005). 38. Kant, Critique of Practical Reason, 107. This skepticism of moral fanaticism, where we can know for sure that we are doing the right thing for the right reasons, is evident throughout Kant’s work. 39. Theodor Adorno, Minima Moralia: Reflections on a Damaged Life (London: Verso, 2006). 40. Thomas Nagel, Equality and Partiality (New York: Oxford University Press, 1995). 41. Dworkin, Justice for Hedgehogs, 272. 42. Ibid., 273–274 (footnote omitted). 43. Ibid., 190–191. 44. Ibid., 277. 45. Ibid., 277–278. 46. Carrol Clarkson, Drawing the Line: Toward an Aesthetics of Transnational Justice (New York: Fordham University Press, 2012). 47. Ibid., 287–288. 48. Ibid., 289. 49. We need to note that we are speaking here of killing others, not suicide, and that we agree with Dworkin’s powerful defense of the right to die as consistent with Kantianism, even if Kant argued against it. For Kant’s arguments against suicide, see his Groundwork of the Metaphysics of Morals, trans., H. Paton (New York: Routledge, 2007), 4:422; and his Metaphysics of Morals in Cambridge Edition of the Writings of Immanuel Kant: Practical philosophy, trans. and ed. M. J. Gregor (Cambridge: Cambridge University Press 1999), 6:421–428. (These volume and page references correspond to the Berlin Academy edition of the writings of Immanuel Kant Immanuel Kants Schriften. Ausgabe der königlich preussischen Akademie der Wissenschaften [Berlin: W. de Gruyter, 1902], which appear in the margins of most translations of Kant’s works.) For Dworkin’s defense of the right to die, see Dworkin et al., “Assisted Suicide: The Philosophers Brief,” New York Review of Books 44, no. 5 (1997): 41–47. See also his Life’s Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom (Alfred A. Knopf, 1993). 50. Once again we want to emphasize that it is possible to defend the dignity of all human beings through uBuntu. See Nyoko Muvangua and Drucilla Cornell, uBuntu and the Law: African Ideals and Postapartheid Jurisprudence (New York: Fordham University Press, 2012).

128

Notes to pages 106–111

6. dignity and responsibility in south african law 1. We are referring here to the year of the enactment of the Interim Constitution, rather than to the year of the first democratic election in South Africa, which was 1994. 2. Dworkin, Justice for Hedgehogs, 154–155. 3. Ibid., 150. 4. L. W. H. Ackermann, “The Legal Nature of the South African Constitutional Revolution,” in The Dignity Jurisprudence of the Constitutional Court of South Africa Vol. 1, ed. Drucilla Cornell et al. (New York: Fordham University Press, 2013), 63–64.

Index Absolute, self-recognition, mutual, 31–32 Absolute Knowledge, 32 accountability versus authenticity, 79–80, 95–97 Ackermann (Justice), 111 actuality versus positivity, 38 analytic positivism, 73 ANC (African National Congress), apartheid negotiations, 1–2 animality, 91 apartheid: transition, 1–2; transition myth, 113 aspirational concept of law, 71, 74 assignment responsibility, 86; white South Africans, 87 authenticity principle, 89, 94–95 authenticity versus accountability, 79–80, 95–97 bare community, 23–24 Benjamin, Walter, 56–58 Bertie van Zyl case, 45 Canadian Supreme Court, 46–47 capacity principle of control, 85–86; judgment responsibility and, 87 Carmichele v. Minister for Safety and Secruity and Others, 49–51 Castro, Fidel, 4 causal principle of control, 85 causal responsibility, 86 checkerboard solutions, 26 CODESA (Convention for a Democratic South Africa), 4

codetermination, mutual, 39 Coleman, Jules, 77 common law, Constitution and, 50–51 communal obligation, 23; justice and, 36–37 community, 22–23; bare community, 23–24; components, 23; conventionalism and, 26; integrity and, 30; interpretation and, 17–20; noncontractualist, 30–38; obligations, 23; personality and, 32; pragmatism and, 26–27; of principle, 25–26, 29–30; purposes, 26–27; reciprocal symmetry, 30; self-consciousness and, 37–38; sittlich and, 36; subjectivity and, 37 compatibilism, 83–84 The Concept of Law (Hart), postscript, 63–67 confrontation, helping others and, 100–101 consciousness: desire and, 31; Hegel, 30–31; the other and, 30–31 constitution. See South African Constitution Constitutional Court, teleological interpretation, 45–48 constitutionalism: ANC and, 2; Lenin, Vladimir, and, 5; Luxemburg, Rosa, and, 5–6 contract, personhood, 33–34 contractual obligation myth, 33–35 contractualist political theory, 22–23 control: capacity principle, 85–87; causal principle, 85 conventionalism, community and, 26 corruption, 2 criterial concept of law, 70

129

130

Index

democracy, Luxemburg on, 6–7 desire, consciousness and, 31 dictatorship, Luxemburg on, 6–7 dignity: Constitution and, 10; Justice for Hedgehogs, 83–93; living well and, 87–88, 90; moral duty and, 89–90; personality and, 93–94; rattlesnake analogy, 102; South African Consitution, 106–111 disagreement in law, 14–15 doctrinal concept in law, 68–70 Dworkin, Ronald, 8–9; applicability of Law’s Empire, 60–61; doctrinal concept in law, 68–70; external skepticism, 17–18; Hart’s postscript, 63–67; Hegel and, 9–10; internal skepticism, 18–19; Is Democracy Possible Here?, 12; Justice for Hedgehogs, 9–10, 13; Justice in Robes, 12, 62, 68, 74, 125n22; Kantian turn, 80–83; law as interpretive exercise, 14; Law’s Empire, 11–12, 42–61; response to Hart’s postscript, 67–78; Taking Rights Seriously, 9; theory of liberty, 76; Wittgenstein and, 17 ethical statements, queer entities, 40 ethical versus moral, 83–84 Everfresh, 50–51 ex ante arguments, 99–100 external skepticism, 17–18 Fagan, Anton, 51–54 foreign law, 123n17 free will: responsibility and, 84–85; vigilance and, 113–114 freedom: incompatibilism and, 83; law and, 112–113; responsibility system and, 86 Freedom Charter, 2 Gadamer, Hans-Georg, 20–21 Gegenspieler, 32 Grundnorm, 12–13, 107, 113 Guevara, Che, 4 Hamlet, interpretation and, 17–18 Hani, Chris, 4 harmonization of interests, 101–104 Hart, H. L. A.: Dworkin’s response, 67–78; on legal system, 64–65; postscript to The Concept of Law, 63–67 Hegel, Georg: community of principle, 29–30; consciousness, 30; Dworkin

and, 9–10; Peperzak on, 39; Phenomenology of Spirit, 30; Philosophy of Mind, 118n17; Philosophy of Right, 30, 40–41, 119n17; property ownership, 118n17; Sittlichkeit in, 40 helping others, metrics, 99–101 history: Benjamin, Walter, and, 56–58; interpretation and, 47–48, 56–58 humanity: Kant, 91; moral personality, 92–93 IC (Interim Constitution), 4 impartial point of view, 96. See also twoperspective model incompatibilism, 83–84; pessimistic, 85–86 individual agency, legal system and, 35–36 individuality: social structures and, 38–39; state and, 32–33 integrity: community and, 30; interpretation and, 43; law as, 24–25; legality as, 76–77; political, 55; political morality and, 72–73; precedent and, 27–28 intent, 20–21 internal skepticism, 18–19; community and, 17–20; participants and, 19 interpretation: Canadian Supreme Court, 46–47; Dworkin’s theory, 44–45; Hamlet and, 17–18; history and, 47–48, 56–58; integrity and, 43; intent and, 20–21; language and, 17; in the law, 58–59; reconstruction and, 20–21; rosecolored glasses, 21; suffering and, 56; word meaning, 43. See also teleological interpretation of Constitution interpretive concept in law, 70 irreducible exteriority, 56 Is Democracy Possible Here? (Dworkin), 12 judge, legal system, 36 judging, 24–25 judgmental responsibility, 86–87 jurisprudential stage, 70–71 justice: communal obligation and, 36–37; versus law, 21 Justice for Hedgehogs (Dworkin), 9–10, 13; dignity and, 83–93 Justice in Robes (Dworkin), 12, 62, 68, 74, 125n22 Kant, Immanuel, 62; animality, 91; Dworkin and, 10; humanity, 91; Justice for Hedgehogs and, 79–80; Perpetual Peace,

Index

131

93; personality, 91; Religion within the Boundaries of Mere Reason, 90; as social critic, 93 Kelsen, Hans, 3 Kentridge, Sydney (Justice), 45

objective spirit, 39 ordinary language approach to interpretation, 46 O’Regan (Justice), 45 the other, 30–32

language, interpretation and, 17 law: aspirational concept, 71, 74; criterial concept, 70; dignity in South African Consitution, 106–111; doctrinal concept, 68–69; freedom and, 112–113; as integrity, 24–25; as interpretation, 14; interpretation in, 58–59; interpretive concept, 70; jurisprudential stage, 70–71; versus justice, 21; moral criteria, 68–69; natural kind concept, 70; plain-fact view, 14–15; political morality and, 77–78; positivist theories, 14–15; precedent and, 27–28, 58–59; value of, 71–72; word use criteria, 16 Law’s Empire (Dworkin), 11–12; South African Constitution and, 42–61, 108 legal interpretation: philosophy of right and, 39–40; Sittlichkeit and, 40 legal obligation, 35–36 legal practices, purposes and, 44–45 legal system: Hart on, 64–65; individual agency and, 35–36; judge, 36; personhood and, 35–36; sovereign and, 35–36 legality as integrity, 76–77 Lenin, Vladimir, constitutionalism, 5 liability responsibility, 86, 110; white South Africans, 87 liberty, 76 local priority, 77 Luxemburg, Rosa, 5–6; democracy, 6–7; dictatorship of the proletariat, 6–7

partial point of view, 96. See also twoperspective model particularization, confrontation and, 100–101 Peperzak, Adriaan, on Hegel, 39 Perpetual Peace (Kant), 93 personality: community and, 32; dignity and, 93–94; humanity and, 92; Kant, 91; value, 32 personhood: contract and, 33–34; legal system and, 35–36 pessimistic incompatibilism, 85–86 Phenomenology of Spirit (Hegel), 30 Philosophical Investigations (Wittgenstein), 43 philosophy of right, legal interpretation and, 39–40 Philosophy of Right (Hegel), 30, 40–41 plain-fact view of law, 14–15; debate experience and, 16–17 political integrity, 55 Political Liberalism (Rawls), 76 political morality: integrity and, 72–73; law and, 77–78; necessity, 87 positivism: analytic, 73; political doctrinal, 73; soft versus plain-fact, 64 positivity versus actuality, 38 pragmatism, community and, 26–27 precedent, 58–59; fairness and, 72; law as integrity, 27–28 private law, 50 procedural revolution, 4–5 property ownership, 118n17, 119n19 proximity, confrontation and, 100–101 purposes, legal practices and, 44–45

McLoughlin case, 15–16 Mhlungu, 47–48 moral criteria in law, 68–69 moral duty: dignity and, 89–90; living well and, 89–90 moral objectivity, 75 moral versus ethical, 83–84 Mrs. Sorenson case (Justice in Robes), 125n22 mutual codetermination, 39 Nagel, Thomas, two-perspective model, 96, 98–99 natural kind concept in law, 70 natural rights theorists, 74–75

rattlesnake analogy, 102 Rawls, John, Political Liberalism, 76 Rechtsstaat, 29, 59 reciprocal recognition, 31–35; ideal of, 40–41; legal system and, 37 reciprocal symmetry, 120nn29–30; community and, 30 recognition, self, 31–32 reconstruction, interpretation and, 20–31 relational responsibility, 86

132

Index

Religion within the Boundaries of Mere Reason (Kant), 90 responsibility system, 84–85; assignment responsibility, 86; causal responsibility, 86; freedom and, 86; judgmental responsibility, 86–87; liability responsibility, 86; relational responsibility, 86; virtue responsibility, 86 revolution: people versus intellectuals, 5; procedural revolution, 4–5; substantive revolution, 3 Rousseau, Jean-Jacques, status battles, 93 S v. Zuma, 45 Sachs, Albie (Justice), Mhlungu, 47–48 self, as member of state, 32–33 self-consciousness: community and, 37–38; development, 30; mutual self-recognition, 31–32 self-recognition, mutual, 31–32 sittlich, community and, 36 Sittlichkeit, 30, 38–40, 55, 121n54, 122n59; Hegel and, 40; legal interpretation and, 40 skepticism: external, 17–18; internal, 18–19 soft positivism versus plain-fact, 64 South African Constitution, 2; common law and, 50–51; dignity and, 10; dignity in, 106–111; Law’s Empire and, 42–61, 108; preamble, 3; private law and, 50; rejection, 7; Section 39(2) interpretive mandate, 48–54, 109–110; teleological interpretation, 43–48; uBuntu and, 8

sovereign, legal system and, 35–36 state, self as member, 32–33 status battles, 93 subjectivity: community and, 37; objective spirit and, 39 substantive revolution, 3–4; versus procedural revolution, 4 suffering, interpretation and, 56 suicide, 127n49 Sunstein, Cass, 77 swimmers analogy, 103–104 Taking Rights Seriously (Dworkin), 9 teleological interpretation of Constitution, 43–48; ordinary language approach, 46; parts and, 44; Section 39(2) interpretive mandate, 48–54; values and, 44 two-perspective model, 96–99; reconciliation, 98 uBuntu, Constitution and, 8 uniqueness, 88–89 value of law, 71–72 values: Dworkin’s philosophical analysis, 75–76; interpretation and, 44 virtue responsibility, 86 Wittgenstein, Ludwig: community standards, 17; interpretation and, 17; Philosophical Investigations, 43 words, meaning, 43 Yacoob, Zak (Justice), 50–51

j us t

i d e a s

Roger Berkowitz, The Gift of Science: Leibniz and the Modern Legal Tradition Jean-Luc Nancy, translated by Pascale-Anne Brault and Michael Naas, The Truth of Democracy Drucilla Cornell and Kenneth Michael Panfilio, Symbolic Forms for a New Humanity: Cultural and Racial Reconfigurations of Critical Theory Karl Shoemaker, Sanctuary and Crime in the Middle Ages, 400–1500 Michael J. Monahan, The Creolizing Subject: Race, Reason, and the Politics of Purity Drucilla Cornell and Nyoko Muvangua (eds.), uBuntu and the Law: African Ideals and Postapartheid Jurisprudence Drucilla Cornell, Stu Woolman, Sam Fuller, Jason Brickhill, Michael Bishop, and Diana Dunbar (eds.), The Dignity Jurisprudence of the Constitutional Court of South Africa: Cases and Materials, Volumes I & II Nicholas Tampio, Kantian Courage: Advancing the Enlightenment in Contemporary Political Theory Carrol Clarkson, Drawing the Line: Toward an Aesthetics of Transitional Justice Jane Anna Gordon, Creolizing Political Theory: Reading Rousseau through Fanon

Jimmy Casas Klausen, Fugitive Rousseau: Slavery, Primitivism, and Political Freedom Drucilla Cornell, Law and Revolution in South Africa: uBuntu, Dignity, and the Struggle for Constitutional Transformation Abraham Acosta, Thresholds of Illiteracy: Theory, Latin America, and the Crisis of Resistance Andrew Dilts, Punishment and Inclusion: Race, Membership, and the Limits of American Liberalism Lewis R. Gordon, What Fanon Said: A Philosophical Introduction to His Life and Thought. Foreword by Sonia Dayan-Herzbrun, Afterword by Drucilla Cornell Gaymon Bennett, Technicians of Human Dignity: Bodies, Souls, and the Making of Intrinsic Worth Drucilla Cornell and Nick Friedman, The Mandate of Dignity: Ronald Dworkin, Revolutionary Constitutionalism, and the Claims of Justice