In hedgehog solidarity

Boston University Law Review

Volumn 90, Issue 2, 2010, Pages 759-817

  Edwin Baker, C ^a  

^a UNIVERSITY OF PENNSYLVANIA LAW SCHOOL   (United States)

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EID: 77954324972     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (224)

1. My first published article, C. Edwin Baker, Utility and Rights: Two Justifications for State Action Increasing Equality, 84 YALE L.J. 39 (1974), compared ideas stimulated by a lecture series Dworkin gave during my first year of law school with ideas stimulated by a seminar with Guido Calabresi. Since the late 1980s, I have benefitted from the NYU colloquium lead by Dworkin and Thomas Nagel. The distinction above between explain and justify is one of many that Dworkin carefully makes in the book.
2. See, e.g., RONALD DWORKIN, JUSTICE FOR HEDGEHOGS (forthcoming 2010) (Apr. 17, 2009 manuscript at 33, on file with the Boston University Law Review).
3. See DWORKIN, supra note 1 (manuscript at 17).
4. Id. (manuscript at 10, 18, 72).
5. Dworkin's divide between science and interpretation is, in part, that interpretation relates to human practices while science relates to what is true independent of such practices. See, e.g., DWORKIN, supra note 1 (manuscript at 37). Social practices are the subject of interpretation; they also may provide a grammar; but, as facts, they do not seem to themselves provide a source of values.
6. See DAVID HUME, A TREATISE OF HUMAN NATURE 469 (L.A. Selby-Bigge ed., Oxford Univ. Press 1978) (1740).
7. DWORKIN, supra note 1 (manuscript at 16).
8. Though the point would require more discussion of Kant than appropriate for this Paper, my argument implicitly also critiques what is generally seen as Kant's argument for and elaboration of the principle.
9. DWORKIN, supra note 1 (manuscript at 7).
10. The foxy Frank Michelman suggested the need for this paragraph.
11. RONALD DWORKIN, SOVEREIGN VIRTUE 1-7 (2000).
12. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 180(1977).
13. DWORKIN, supra note 1 (manuscript at 11).
14. Id. (manuscript at 221) (emphasis added).
15. Id. (manuscript at 15).
16. See generally IMMANUEL KANT, GROUNDING FOR THE METAPHYSICS OF MORALS (James W. Ellington trans., Hackett Publ'g Co. 1981) (1785).
17. DWORKIN, supra note 1 (manuscript at 221). "Silly" is a reoccurring characterization of misguided popular arguments. This characterization may reflect that interpretation is less a matter of logical entailment than of intuitive and clarifying persuasiveness.
18. Id.
19. DWORKIN, SOVEREIGN VIRTUE, supra note 10, at 162-63.
20. When Dworkin claims to show the normative basis of the market system, I find it unclear whether he believes that he shows whether and what property in intellectual creations - copyrights and patents - ought, in principle, to exist.
21. DWORKIN, supra note 1 (manuscript at 226).
22. This argument for equal resources aims at a critique of equal welfare. More interesting is the possibility that Sen's equal capabilities approach in some but not other ways (it uses a collective, not individual valuation of capabilities) provides greater respect for individual responsibility. See generally AMARTYA SEN, INEQUALITY REEXAMINED (1992). Dworkin's insurance responds to only some of the issues that Sen raises. My (limited) critique of Sen's alternative does not serve my present purposes, so I put that discussion aside here.
23. Welfare economics' standard efficiency arguments always require an assumed initial distribution of wealth. Most commonly, an existing distribution is assumed. For law and economics purposes, the trouble with this standard is that alternative choices of law could each be "efficient" on the basis of the distribution that it creates, which is why efficiency provides no determinant identification of the most efficient law. C. Edwin Baker, The Ideology of the Economic Analysis of Law, 5 PHIL. & PUB. AFF. 3 (1975).
24. DWORKIN, supra note 1 (manuscript at 226).
25. Id. (manuscript at 227);
26. see also DWORKIN, SOVEREIGN VIRTUE, supra note 10, at 78, 478. Dworkin argues that this compromise is probabilistic, not paternalistic - but in any event it does not embody a person's actual exercise of her special responsibility. DWORKIN, supra note 1 (manuscript at 227).
27. Harold M. Hochman & James D. Rogers, Pareto Optimal Redistributions, 59 AM. ECON. REV. 542, 542-43 (1969);
28. see also Baker, supra note 1, at 1.
29. DWORKIN, supra note 1 (manuscript at 162).
30. Id. (manuscript at 188).
31. See, e.g., id. (manuscript at 201);
32. DWORKIN, SOVEREIGN VIRTUE, supra note 10, at 12.
33. See, e.g., Elizabeth Anderson, What Is the Point of Equality?, 109 ETHICS 287, 287 (1999);
34. C. Edwin Baker, Communicative Action and Basic Equality: Universal Commitments (2009) (unpublished manuscript, on file with Nancy Baker). Samuel Scheffler describes this paternalism in the context of the legal order as adopting an administrative attitude toward citizens.
35. Samuel Scheffler, What Is Egalitarianism?, 31 PHIL. & PUB. AFF. 5, 32 (2003).
36. For further discussion, see also Samuel Freeman, Rawls and Luck Egalitarianism, in JUSTICE AND THE SOCIAL CONTRACT 111-42 (2007) (explaining why Rawls's argument does not lead to luck egalitarianism).
37. DWORKIN, supra note 1 (manuscript at 15) (emphasis added).
38. Id. (manuscript at 165).
39. In discussing democracy, Dworkin argues that dignity does not require any particular distribution of either influence or power to have impact but rather an attitude that seems much like respect. Id. (manuscript at 245).
40. See infra Part I.B.
41. See C. Edwin Baker, Rawls, Equality, and Democracy, 34 PHIL. & Soc. CRIT. 203 (2008).
42. C. Edwin Baker, Two Interpretations of Liberalism: Neutrality Versus Toleration (2009) (unpublished manuscript, on file with Nancy Baker).
43. For similar reasons, I similarly mocked this conception of liberty in C. Edwin Baker, Harm, Liberty, and Free Speech, 70 So. CAL. L. REV. 979 (1997), on which this Section relies.
44. DWORKIN, supra note 1 (manuscript at 229, 231) (emphasis added).
45. Id. (manuscript at 231).
46. Id.
47. Id. (manuscript at 232).
48. Id.
49. Care with definitions is required. The distinction between general prohibitions and allocation rules is emphatically not the distinction between criminal law and civil law. An allocation of a car to Joe is protected by property and criminal laws (against theft) and tort laws (against damage) and can be changed by contract. Joe can permit others to use the car. A law against speeding could become basis of liability in a tort suit or punishment by criminal law, but its role is to prohibit anyone from making the choice to speed.
50. In a workshop, Bernard Williams made this objection to the distinction. Though there is force to his objection, the point is that this formal distinction usually relates to the rationale of identifying whether the state concern is with the distribution or liberty. Thus, the substantive concern can sometimes require reassigning some laws from that suggested by the formal categories.
51. See United States v. Am. Library Ass'n, Inc., 539 U.S. 194, 226 (2002);
52. Bd. of Educ. v. Pico, 457 U.S. 853, 855-56 (1982).
53. The plurality of opinions, especially Blackmun's opinion in Pico, 457 U.S. at 875 (Blackmun, J., concurring), is best understood not to require neutrality, but to hold that the challenge to book removal in the school library could prevail if it showed the removal was intolerant.
54. See infra Part I.C.
55. Dworkin agrees that society can affirmatively promote what it considers "intrinsically valuable in literature, art and music." DWORKIN, supra note 1 (manuscript at 237). Though he is surely right, this seems to conflict with neutrality. But see RONALD DWORKIN, Can a Liberal State Support Art?, in A MATTER OF PRINCIPLE 221-33 (1985).
56. DWORKIN, supra note 1 (manuscript at 232) (emphasis added).
57. Id.
58. Dworkin says that the purest form of liberty in a total freedom conception of liberty is to have no laws. Id. (manuscript at 230).
59. Id. (manuscript at 237).
60. Id. (manuscript at 232).
61. Id.
62. Id. (emphasis added).
63. Baker, supra note 22, at 10.
64. DWORKIN, supra note 1 (manuscript at 234).
65. Id. (manuscript at 233) (emphasis added).
66. See generally STEVE H. SHIFFRIN, THE RELIGIOUS LEFT AND CHURCH-STATE RELATIONS (2009).
67. Though not developed here, this discussion obviously relates to the proper form of public reason, a topic about which both Rawls and Habermas have commented. I believe both are over-influenced by the ideal of neutrality.
68. The claim is not that all general prohibitions are objectionable. In respect to some, individual liberty may not be at stake - for example, if the general prohibition applies not to choices of individuals but choices properly attributable to artificial, state created entities such as corporations. Or maybe, in some circumstances, paternalism - overt limits on liberty - may be justified as it often is for children.
69. DWORKIN, supra note 1 (manuscript at 235).
70. Id. (manuscript at 238).
71. This criticism could be unfair. Dworkin devotes here only a few illustrative sentences to free speech. Still, my comments reflect, I believe, the basic logic of his approach to (negative) liberty.
72. My claim is controversial and I will not try to support it here. Still, in a recent informal scholarly exchange involving Vince Blasi, Robert Post, Tim Scanlon, Seana Shiffrin, Steve Shiffrin, Eugene Volokh, James Weinstein, Susan Williams, and myself, only Weinstein and Post supported a view similar to Dworkin's.
73. See Brandenburg v. Ohio, 395 U.S. 440, 454 (1969) (rejecting Judge Hand's "clear and present danger" test).
74. United States v. Dennis, 183 F.2d 201 (2d Cir. 1950), aff'd, 341 U.S. 494 (1951).
75. Masses Publ'g Co. v. Patten, 244 F. 535, 540 (S.D.N.Y. 1917), rev'd, 246 F. 24 (2d Cir. 1917). In the case before him, Learned Hand found that such words had not been used.
76. Dennis, 341 U.S. at 544-45 (1951) (Frankfurter, J., concurring in the judgment). Robert Bork took the same position for roughly the same reason in his only major prenomination article on constitutional law.
77. Robert Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J 1 (1971).
78. See Brandenburg, 395 U.S. 440.
79. DWORKIN, supra note 1 (manuscript at 237).
80. Id. (manuscript at 233).
81. C. EDWIN BAKER, HUMAN LIBERTY AND FREEDOM OF SPEECH 76-78 (1989).
82. DWORKIN, supra note 1 (manuscript at 238).
83. See, e.g., Hustler Magazine v. Falwell, 485 U.S. 46 (1988);
84. Brandenburg, 395 U.S. 444;
85. N.Y. Times v. Sullivan, 376 U.S. 254 (1964). I discuss this approach and contrast it to a balancing analysis in Baker, supra note 36.
86. Justice Brennan also applied this approach in Roth v. United States, 354 U.S. 476, 483-94 (1957), but concluded that the logic of free speech did not justify protection for the category after defining it as not including material with any redeeming social importance, presumably within a marketplace of ideas. When he eventually changed his position, it was not because he now found the state justifications less persuasive. As he moved from a truth-seeking to a liberty view of free speech, he observed that this rationale covered the speech.
87. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 85 n.9 (1973) (Brennan, J., dissenting).
88. -395 U.S. 444.
89. In this respect, Dworkin's approach is more like that of the Court in Dennis v. United States, 341 U.S. 494 (1951), where the issue was the risk of serious (moral) evils.
90. See generally Hans A. Linde, "Clear and Present Danger" Reexamined: Dissonance in the Brandenburg Concerto, 22 STAN. L. REV. 1163 (1969-1970).
91. I put aside whether cases such as New York Times v. Sullivan and Hustler Magazine v. Falwell should be limited to being a part of political positive liberty - I believe the better arguments would show that they should not be - because even if they were, it is unclear why moral reasons should not justify limits on that positive liberty just as much - or just as little - as they justify limits on negative liberty.
92. At least sometimes it does. Brennan rejected the Court's result in the later obscenity decisions where the Court (as Dworkin would apparently recommend) looked also at the state's justifications. See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974);
93. Paris Adult Theatre, 413 U.S. 49.
94. See, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 572 (2001) (Thomas, J., concurring);
95. Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 518 (1996) (Thomas, J., concurring). I might add, contrary to Dworkin, that I, like John Smart Mill, argue that ethical rationales for restricting commercial speech are perfectly appropriate. This view is consistent with the Court's Central Hudson requirement that the government can regulate if it has a substantial reason.
96. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557, 564 (1980);
97. See C. Edwin Baker, Paternalism, Politics, and Citizen Freedom: The Commercial Speech Quandary in Nike, 54 CASE W. RES. L. REV. 1161 (2004);
98. see also C. Edwin Baker, The First Amendment and Commercial Speech, 84 IND. L.J. 981 (2009).
99. Dworkin, supra note 1 (manuscript at 243).
100. Id. (manuscript at 241).
101. Id. (manuscript at 244).
102. Under the influence of Dworkin (and also lectures of Laurence Tribe), I also once argued that neither equal influence, equal impact, nor the once popular process-reinforcing theory explains the Court's voting districting decisions but a formal "equality of respect" standard does. Unlike Dworkin here, however, I dismissed the equal impact argument as conceptually confused. How much actual impact a person's vote has, even when districts are numerically equal, depends both on her own values and those of others in the district. For example, even if the number of voters in two districts were the same, a reactionary conservative person may have little impact in a district closely balanced between Democrats and Republicans because candidates will likely chase the center, but she could have some real impact in a very Republican district A moderate, though, will do better in the politically balanced district. That is, since a person's impact reflects interactions between her views and those of others in a district, impact will not be the same for different people within the same district. Nevertheless, given that government does not officially subscribe to any required conception of the good to a person by its districting, equal districts formally respect her equality or, as Dworkin argues here, her "equal standing." It does not insult dignity the way unequal population districting can.
103. See C. Edwin Baker, Outcome Equality or Equality of Respect: The Substantive Content of Equal Protection, 131 U. PA. L. REV. 933 (1983).
104. Janos Kis nicely shows that representative democracy usefully provides for experts (legislators) while violating equal impact, and then shows that the democratic argument for judicial review has the same structure - an epistemic asymmetry model - as does the argument for representative democracy.
105. Janos Kis, Constitutional Precommitment Revisited, 40 J. See. PHIL. 570 (2009).
106. -83 Dworkin, supra note 1 (manuscript at 250).
107. My argument in this Part closely duplicates that made in Baker, supra note 34. 87 DWORHN,
108. supra note 1 (manuscript at 209-10).
109. Id. (manuscript at 238).
110. Id.
111. Id.
112. Id. (manuscript at 251).
113. In rejecting the "silly" conservative/Nozickian view that government should (and, implicitly, could) let distributions fall where they may, Dworkin rightly observes that "everything the government... does - or does not do - affects the resources that each of its citizens has."
114. Id. (manuscript at 221).
115. Any mandate for a particular distribution, even for an egalitarian ex ante or initial distribution, would in theory provide a determinative solution, unless tramped by or compromised with another demand of principle, to any question of what the government should or should not do. Dworkin illustrated this with his hypothetical auction.
116. Id. (manuscript at 224).
117. Id. (manuscript at 250).
118. Baker, supra note 34;
119. Baker, supra note 35. 93 See DWORKIN,
120. supra note 1 (manuscript at 183-92).
121. Id. (manuscript at 233).
122. Cf. id. (manuscript at 189).
123. Id. (manuscript at 12).
124. Id. (manuscript at 15).
125. Id. (manuscript at 167).
126. Id.
127. Dworkin says that a moral principle reports how "people must act given the equal importance of the lives" of all,
128. id. (manuscript at 67), but this seemed more definitional than an argument based on "pursuing coherence endorsed by conviction."
129. Id. (manuscript at 77). Why the "given"?
130. Id. (manuscript at 41).
131. Id. (manuscript at 10).
132. Id. (manuscript at 101).
133. Id. (manuscript at 84).
134. Id. (manuscript at 114).
135. My writings on equality and liberty have always accepted this proposition as useful in providing the most insight, but contrast Frank I. Michelman, Foxy Freedom?, 90 B.U. L. REV. 949 (2010), and
136. STEVE SHIFFRIN, THE FIRST AMENDMENT, DEMOCRACY, AND ROMANCE (1990).
137. DWORKIN, supra note 1 (manuscript at 101-06).
138. Id. (manuscript at 103).
139. Id. (manuscript at 102).
140. Id.
141. Id. (manuscript at Part V).
142. Id. (manuscript at 84).
143. This description applied to Dworkin's "interpretation" of his "practice theory of interpretation" and showed that we individuate an interpretative tradition, attribute to the tradition a package of purposes, and judge its realization on a particular occasion. This example suggests that different interpretative traditions, despite all being on Dworkin's account "truth seeking," can have different purposes -1 would say, seek answers to different questions.
144. DWORKIN, supra note 1 (manuscript at 84).
145. Contra id. (manuscript at 101).
146. Id. (manuscript at 102).
147. Id.
148. Id. (emphasis added).
149. Id. (manuscript at 108-09).
150. Id. (manuscript at 110-13).
151. Id. (manuscript at 102) (emphasis added).
152. RICHARD RORTY, PHILOSOPHY AND MIRROR OF NATURE 333-42 (1979).
153. DWORHN, supra note 1 (manuscript at 13-15).
154. E.g., MICHAEL POLANYI, PERSONAL KNOWLEDGE 16, 145-50 (1958).
155. THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (2d ed. 1970).
156. Analogous is how law at the trial or dispute resolution level most often involves criterial application of legal terms, while at the appellate level issues often involve conceptual interpretations that can challenge otherwise accepted criteria.
157. DWORKIN, supra note 1 (manuscript at 97-98).
158. Id. (manuscript at 194).
159. Id. (manuscript at 96-97).
160. Id. (manuscript at 78-79, 112).
161. Id. (manuscript at 101). 134 Id.
162. Id. 136 Id. (manuscript at 19).
163. Continually in his critic of status skeptics, Dworkin saw them as asserting that moral claims were not objectively true because they were mere projections of attitudes or emotions. There, too, what was not adequately considered is that the claims could be correct and independent of the speaker or interpreter but that the correctness is better described as appropriate or insightful than as true.
164. DWORHN, supra note 1 (manuscript at 80).
165. Id. (manuscript at 97).
166. Id.
167. Id.
168. Id.
169. Id. (manuscript at 81).
170. JÜRGEN HABERMAS, THEORY OF COMMUNICATIVE ACTION (Thomas McCarthy trans., Beacon Press 1984) (1981).
171. DWORHN, supra note 1 (manuscript at 97).
172. Id. (manuscript at 101).
173. Most speakers, I suspect, do not find it strange to say a chair has a purpose but would find it strange to say that a chair has an intent. The analytic difference between the "purpose" of the artifact and the "intent" of the creator, and the greater relevance of the former for constitutional law is developed in
174. C. Edwin Baker, Comment Injustice and the Normative Nature of Meaning, 60 MD. L. REV. 578, 579-83 (2001).
175. DWORKIN, supra note 1 (manuscript at 87).
176. Consider Dworkin's discussion of "critical legal studies" in American law schools, an enterprise that sought to reveal that contradictions in legal doctrine were caused by the underlying influence of powerful groups seeking to further their own interests.
177. Id. (manuscript at 92-93).
178. Dworkin calls this approach "explanatory interpretation," seeking to demystify the origins of a doctrine, and suggests that such an approach could have been complementary to "conventional collaborative interpretation that aims to improve the law by imposing some greater degree of integrity and principle on doctrine whose causal roots may well have been what the Crits claim they were."
179. Id.
180. Id. (manuscript at 96-97).
181. Id. (manuscript at 101).
182. Id. (manuscript at 86).
183. Id. (manuscript at 90).
184. Id. (manuscript at 14-20).
185. Id. (manuscript at 17-18).
186. Id. (manuscript at 200).
187. Hart claimed to identify certain "facts" that he thought had a rational, not merely causal, relation to a minimum content of natural law. H.L.A. HART, THE CONCEPT OF LAW 193-200 (2d ed. 1994). Although I agree with Hart's general point, I have argued that he then became unpersuasive as well as too Hobbesian in the type of facts he identified as giving a reason for minimal content of natural law.
188. C. Edwin Baker, Hart's Transformation of Positivism: Natural Law Without Metaphysics (2009) (unpublished manuscript, on file with Nancy Baker).
189. DWORHN, supra note 1 (manuscript at 10).
190. Id. (manuscript at 10, 39).
191. Id. (manuscript at 74).
192. Id. (manuscript at 37-39).
193. Id. (manuscript at 14).
194. Id. (manuscript at 10-11).
195. Id.
196. Id. (manuscript at 41).
197. Id. (manuscript at 40).
198. Id. (manuscript at 72-73).
199. Id. (manuscript at 73).
200. Id. (manuscript at 40).
201. Id. (manuscript at 83-84).
202. Id. (manuscript at 67-68) (emphasis added).
203. LUDWIG WITTGENSTEIN, ON CERTAINTY 17e, No. 110 (G.E.M. Anscombe & G.H. von Wright eds., Denis Paul & G.E.M. Anscombe trans., 1969).
204. DWORKIN, supra note 1 (manuscript at 37).
205. Compare to Kant, whom Dworkin calls "the paradigm of a moral isolationist: morality is categorical, he said, because its commands are imperative independently of any desire or inclination an agent might have, including an inclination to spread happiness or reduce suffering." Id. (manuscript at 167).
206. Id. (manuscript at 15).
207. Id. (manuscript at 162) (emphasis added).
208. Id. (manuscript at 10).
209. I carefully set out the argument and respond to many objections to the argument in Baker,
210. supra note 29. See also Baker,
211. supra note 34;
212. Baker, supra note 157.
213. The rest of this paragraph follows Baker, supra note 29.
214. I understand Dworkin to agree with the criticism of Kant's categorical imperative but to suggest that it still provides a good test of test of responsibility.
215. See DWORHN, supra note 1 (manuscript at 71-72).
216. Dworkin describes Kant's "less demanding kind of universalism: we must act in such a way that we can will the principle of our action to be universally embraced and followed."
217. Id. (manuscript at 168).
218. HABERMAS, supra note 144.
219. See Baker, supra note 29;
220. see also Baker, supra note 22, at 39.
221. See DWORKIN, supra note 1 (manuscript at 74).
222. See supra note 150 and accompanying text. 183 DWORKIN,
223. supra note 1 (manuscript at 217).
224. Id. (manuscript at 240-41).