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The Bork Nomination and Prof. Dworkin
by Justice Markandey Katju*

Cite as : (2001) PL WebJour 2

If a certain legal norm is required for the smooth functioning of a society at a particular historical stage of its development, that norm will sooner or later emerge. If it does not emerge out of the legislative process, it will emerge out of the judicial process.

A typical example of this is the classic judgment of Lord Atkin in Donoghue v. Stevenson1 . Another example is the right to privacy, which has been recognized in a large number of countries (although their Constitutions do not specifically provide for it).

The story of the discomfiture of the U.S. Senate at Robert Bork's nomination to the U.S. Supreme Court is especially instructive in this connection. The story is related in Bork's own books, and elsewhere2 .

Bork was a Judge of an American Federal Court, and was regarded as a conservative and "strict constructionist". In 1987, President Reagan recommended his appointment to the Senate to fill in the vacancy of Justice Lewis Powell. The Senate rejected the nomination by a 58:42 vote and this episode illustrates the important principle stated in the beginning of this article. We may therefore narrate the episode at some length.

As already stated above, the right to privacy is nowhere specifically mentioned in the U.S. Constitution, but it has been recognized by judicial decisions3 . Thus, in Griswold v. Connecticut4  a law forbidding the use and dissemination of contraceptives was held violative of the right to privacy by a 6:2 majority of the U.S. Supreme Court.

The reasoning of the majority Judges, however, differed. Justice Douglas held that apart from the rights specifically mentioned in the Bill of Rights, there were also certain "penumbra rights" which had to be recognized. Other Judges relied on the Ninth Amendment to the U.S. Constitution5  and the due process clause.

Subsequently, in Roe v. Wade6 , by a 7:2 majority the U.S. Supreme Court struck down a Texas statute that prohibited abortions (on the ground that it violated the right to privacy) except in cases where the life of the mother was medically endangered. The majority was whittled down to a 5:4 majority in a 1986 decision in which Justice Powell, whom Bork was to replace, was one of the majority. Another abortion case was to come up before the U.S. Supreme Court soon after Bork had been nominated and a large section of the American people feared that Bork's appointment would reverse Roe v. Wade6.

Bork was a controversial figure, having followed President Nixon's orders to fire Archibald Cox, the Watergate prosecutor, when two colleagues had resigned rather than obey Nixon's order. Moreover, he had written an article in 1963 that a proposed federal law which prohibited restaurant-owners from excluding blacks was an unjustified limitation on the right to do business (had explained later that he had changed his view). He was also alleged to have defended American poll taxes and literacy tests which kept many blacks from voting. Bork was thus regarded by the liberals as an arch conservative.

The main issue on which Bork's nomination was rejected was his philosophy that Judges should interpret the Constitution according to the "original intent" of the framers. Bork was thus a "strict constructionist". In particular, he was of the view that there was no general right to privacy, as it was not expressly mentioned in the Constitution.

Dworkin was one of the leaders of the anti-Bork campaign which succeeded. It is therefore necessary to mention his views, especially those referred to in his books Taking Rights Seriously and Law's Empire7 .

Dworkin deals with the question how Judges decide difficult or controversial issues (hard cases). Dworkin argues that apart from rules in a legal system, there are also "principles" and "policies". Dworkin defines a "policy" as "that kind of standard that sets out a goal to be reached, generally an improvement in some economic, political or social feature of the community". He defines a "principle" as "a standard that is to be observed, not because it will advance or secure an economic, political or social situation deemed desirable, but because it is a requirement of justice or fairness or some other dimension of morality"8 .

Dworkin illustrates his concepts by saying that the standard that automobile accidents are to be decreased is a policy, and the standard that no man may profit by his own wrong is a principle. Dworkin advocates that courts should enforce principles (apart from rules), but leave policy matters to the legislature.

Dworkin equates principles with political morality. Thus, Dworkin in a sense belongs to the natural law school, which, according to the author is unacceptable in the scientific era. (See the Chapter entitled "Natural Law in the Scientific Era" in the author's book Law in the Scientific Era.)

What is this political morality Dworkin speaks of? Morality arises from the mode of production, and hence different modes of production will have different sets of moral rules. The mode of production in a given society gives rise to certain social relations, and these are reflected in the law and in the ethical standards of that society. For instance, the concept of equality is an accepted moral (and legal) standard in the modern, scientific age, but it would have been unacceptable in ancient Greece and Rome in which there was slavery, or in the feudal age, when there was serfdom. Moreover, even in a given society different persons may hold different views as to what is moral.

To the extent that Dworkin says that courts enforce not only rules but also principles, he is right. But Dworkin does not go deeper and examine how these "principles" come into existence. As stated at the very outset in this article, if a given society, at a particular stage of its historical development, needs a legal norm for its smooth functioning, that norm will sooner or later emerge, if not by the legislative process then by the judicial process. Sooner or later it will be recognized. The legislative process may sometimes have some difficulty in giving it recognition (e.g. legalization of contraceptives in Catholic Ireland) but then the judicial process will sooner or later recognize it (see Mary M'Gee's case referred to on p. 70 in the author's book Law in the Scientific Era).

The right to privacy is an absolutely essential legal norm for the smooth functioning of scientific industrial society. This is because scientific society is more and more becoming a society of creators. There were no doubt creative persons in pre-industrial society, but these were rare and far between. Most men in pre-industrial society did manual labour, and were bound from birth to death by customs (which were usually sanctioned by religion). They had hardly any freedom.

In contrast to this, a scientific society has a plethora of creators and inventors (it is said that 90% of all scientists who ever existed in the world are our contemporaries). This is essential because industrial society is based on continuous scientific discoveries and inventions.

By compulsion or force, we can make a person follow a beaten track or a particular path, but intellectual growth is necessary for creative activity. There can be no science without freedom, the freedom to think, the freedom to discuss, and the freedom to dissent. Only then can the objective laws of nature and society be discovered. That is why most modern Constitutions permit freedom of speech and expression. For freedom of thought, privacy is absolutely essential, for a creator does not like compulsion and intrusion into his privacy, in view of his high cultural level. No doubt scientists (and poets) interact with other human beings, but they also insist on a minimum level of privacy, in order to think. For example, in the Institute of Advanced Studies at Princeton, scientists like Einstein were given total freedom to do whatever they wished.

Scientific society must have the right to dissent. Great creative ideas have often been initially condemned or frowned upon by the majority (e.g. the Copernican theory or Darwin's theory), and without the right to a minimum privacy, these ideas cannot be born.

It is submitted that the U.S. Senate acted wisely in rejecting Bork's nomination since Bork had no idea how a modern, scientific society functions. To interpret the Constitution according to the "original intent" of the Founding Fathers would only lead to all kinds of difficulties. The Founding Fathers lived 200 years ago; how could they possibly know of the problems of the present generation? The law has to deal with flesh and blood, and not dry bones.

Before concluding, we may deal with Dworkin's idea that there are principles, apart from rules in a legal system. Dworkin says that these principles arise from "political morality", which is really a hazy and vague concept. In fact they arise from the needs of a society for its smooth functioning at a particular stage of its historical development (as mentioned before). The decision of Lord Atkin in Donoghue v. Stevenson1 (1932) which laid down the general rule of liability for negligence, is a good example of this.

Before 1932, there was no general tort of negligence in England but instead a number of separate torts, each with its own rules, and the conservatives among the judiciary (the "timorous souls" mentioned by Lord Denning) treated the categories as closed9 . There was no general duty to take care that one's acts or omissions should not injure those whom one ought to have had in mind.

Lord Atkin's decision, and the legal principle (the duty to take care) is absolutely essential in an industrial society. The proposition which he laid down was that a manufacturer of products, which he sells in such form in which they left him with no reasonable possibility of intermediate examination and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care.

This legal principle was required in industrial society, where the ultimate consumer may be, and often is, far separated from the manufacturer.

This decision may be given as an illustration of Dworkin's "principles", but what is so original about Dworkin's theory? The Roman praetors had created equity and the Roman jurists had created jus gentium and jus naturale. In England the Chancellor had created the equity jurisdiction, which was apart from the common law. Henry Maine mentioned that equity and legal fiction helped in the growth of the law. Thus, the existence of "principles" apart from rules, in a legal system, had been accepted by thinkers much before Dworkin. But where do these principles come from? As explained in Law in the Scientific Era, human progress till now has been, and largely still is, spontaneous and not scientifically planned. The result has been that often society spontaneously moves ahead but the laws remain unchanged. Hence "principles" have to be created (either by legislative amendment or court decisions, or even administrative decisions), which may even appear to deviate from the law, but which must be accepted for society may be unable to function smoothly without them.

"Principles", however, will be of two types:

(i) Those which correspond to the social relations prevailing in a society at a particular moment of its historical development. These are necessary to rationalize the present legal order, and do away with outdated rules and practices. Their aim is to bring the legal system up to the present level of social development.

(ii) Those which correspond to the social relations of the future society which is in the womb of the present society. These are made to guide society forward towards that future on scientifically planned (not utopian) lines.

Dworkin does not conceive of all this. There is no depth in his theory, as he only says that principles come from "political morality", without explaining where this "political morality" comes from. Dynamic positivism does this, and thus helps in social advance.

Moreover, Dworkin's view that there can be only one right answer in hard cases is patently wrong. Everyone knows that different Judges have different views and orientations, and in hard cases, particularly, there are often different opinions. Judgments are often overruled or reviewed. No doubt, according to the author's theory of dynamic positivism (see Law in the Scientific Era) in hard cases, a Judge should give a decision which helps in the smooth functioning of society and its forward advance, but whether he actually does so or not is another matter. Plessy v. Ferguson10  (1896) pushed American society backwards, as did the Dred Scott decision11  (1857). Judges should be scientific, but that does not mean that there are no unscientific Judges.

* Judge, Allahabad High Court Return to Text

1. 1 (1932) AC 562 (HL) Return to Text
2. See for instance Simon Lee's Judging Judges, Chapter 23 Return to Text
3. In India it has been recognized in People's Union for Civil Liberties v. Union of India, (1997) 1 SCC 301, 'X' v. Hospital 'Z', (1998) 8 SCC 296 etc. Return to Text
4. 381 US 479 : 14 L Ed 2d 510 (1965) Return to Text
5. The Ninth Amendment states: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Return to Text
6. 410 US 113 : 35 L Ed 2d 147 (1973) Return to Text
7. See also Ronald Dworkin & Contemporary Jurisprudence, edited by Marshall Cohen Return to Text
8. Dworkin claims that his theory is different from that of Hart. The latter had conceded that the rules in a legal system are "open-textured", that is, having many gaps, which the Judge has to fill in using non-legal factors e.g. morality and political opinion. Thus, according to Hart, the legal system is not complete and closed but partially open, with some scope for judicial discretion (in filling in the gaps). Dworkin does not agree that the judges have judicial discretion. He agrees with Hart that rules alone do not comprise the entire legal system, but he says that there are also principles and policies in the legal system which the Judge has to follow, and hence the Judge has no discretion. According to Dworkin, there is no "open texture", no gap in the legal system, because the texture or gap is closed by principles and policies. Return to Text
9. These exceptional rules for liability for negligence prior to 1932 were:
   (1) Strict liability i.e. where the owner of something inherently dangerous e.g. a gun, or someone doing an inherently dangerous activity e.g. a car driver was made liable irrespective of negligence or fault.
   (2) Liability founded on contract e.g. of seller and purchaser.
   (3) If the manufacturer knew of some defect in the article he made. Return to Text
10. 163 US 537 : 41 L Ed 2d 256 (1896) Return to Text
11. Dred Scott v. Sandford, 60 US (19 How) 393 : 15 L Ed 691 (1857) Return to Text