DWORKIN’S THEORY OF JUSTICE

 

DWORKIN’S THEORY OF JUSTICE 

1. INTRODUCTION:

Judicial pronouncement has a very strong impact on the lives of the citizens of a free country. Judgements create precedents or case law and therefore create the future legal course of action. Ronald Dworkin states that the true propositions should relate to the principle of fairness and justice because of the process providing excellent constructive legal practice interpretation of the community.

 

Dworkin developed his theory of adjudication in his seminal work ‘Taking Rights Seriously’ where is it is argued that it is the judge’s duty to discover that the parties are, even when no settled rule disposes of the case. Dworkin refers to such cases as ‘hard cases’ where there is a need to reply on principles in arriving at a conclusion, as opposed to merely pedigreed rules. Judges, according to Dworkin, can normally reach competent answers in ‘hard cases’ by consulting the legal materials of their own jurisdiction that fall into the doctrinal neighborhood of their immediate problem, guided by what he calls the principle of ‘local priority’ which he defines as looking no further than the cases or statutes dealing directly with the matter at hand; in formulating interpretive arguments.

 

Constitutional morality is not a new concept but has suddenly gained popularity in Indian jurisprudence. The use of this concept can be traced to a number of recent landmark judgments passed by Indian courts. Although the concept has been used as a tool to ensure that an individual’s right is not taken away from him owing to societal morality, this concept has also been criticized on various grounds. A prominent instance of this criticism is by Attorney General K.K. Venugopal who raised concerns about the dangers of this concept. In this sense, it becomes important to ascertain what the judiciary means by ‘Constitutional Morality’ and whether this ‘moral reading’ of the constitution actually encroaches upon the legislature’s authority to make laws.

Having said that, the aim of this paper is to analyze some of the Indian judgements that have highlighted the concept of ‘Constitutional Morality’ with respect to the Ronald Dworkin’s theory on law and morality. For this purpose, the paper will be discussing in detail the concept of ‘Constitutional Morality’, describes Ronald Dworkin’s theory on law and morality, presents an analysis of case law with respect to Dworkin’s theory and the conclusion.

 

2. CONCEPT OF CONSTITUTIONAL MORALITY:

According to Dr. Ambedkar, Constitutional morality would mean effective coordination between conflicting interests of different people and the administrative cooperation to resolve them amicably without any confrontation amongst the various groups working for the realization of their ends at any cost.

Constitutional morality has been regarded as a paramount reverence for the constitution. Constitutional morality provides a principled understanding for unfolding the work of governance. It specifies norms for institutions to survive and an expectation of behavior that will meet not just the text but the soul of the Constitution. It also makes the governing institutions and representatives accountable.

The concept of constitutional morality is inexplicit in nature. It has not been given any concrete definition as such, neither in the constitution nor in any case laws. The words ‘constitutional morality’ finds no mention in the constitution of India and yet, it has been used by the judiciary as a justification for many of its arguments. Another interesting point to note is that when the constitutional provisions mention morality, they only mention ‘public morality’ which is, in fact, contrary to constitutional morality. Yet, the courts have read this as constitutional morality and said that it shall prevail over societal morality ‘Constitutional Morality’ is not purely a common law concept. It does find mention in some constituent assembly debates. Dr. Bhim Rao Ambedkar, in one of the constituent assembly debates highlighted the importance of this concept. Quoting the English historian, George Grote, he said:

 

“The diffusion of constitutional morality, not merely among the majority of any community but throughout the whole, is the indispensable condition of a government at once free and peaceable; since even any powerful and obstinate minority may render the working of a free institution impracticable, without being strong enough to conquer ascendency for themselves.

By constitutional morality Grote meant a paramount reverence for the forms of the Constitution, enforcing obedience to authority acting under and within these forms yet combined with the habit of open speech, of action subject only to definite legal control, and unrestrained censure of those very authorities as to all their public acts combined too with a perfect confidence in the bosom of every citizen amidst the bitterness of party contest that the forms of the Constitution will not be less sacred in the eyes of his opponents than in his own."

In other words, this would mean that the constitutional values shall be supreme and would be given precedence while deciding the constitutional validity of any statute. In the absence of constitutional morality, the operation of a constitution, no matter how carefully written, tends to become arbitrary, erratic, and capricious.

 

In context of the above said, it also becomes important to trace the need for the establishment of this concept. This has been discussed by Andre Beteille, in her book, ‘Democracy and its Institutions’, wherein she talks about how Ambedkar felt the lack of a living democratic tradition in India. Given the inequalities that existed in the Indian society in terms of class and caste, he believed that the constitution alone could not create an egalitarian society. Thus, to be effective, constitutional laws have to rest on a substratum of constitutional morality.

 

3. RONALD DWORKIN’S THEORY ON LAW AND MORALITY:

Dworkin, unlike Hart, believes that there exists a connection between law and morality. This is because, in addition to rules, law also contains some non-rule standards. These non-rule standards are called principles and policies. These principles and policies have a dimension of ‘weight and importance’ attached to them. Principles and policies are different from each other. A principle is a standard to be observed, not because it will advance or secure an economic, political, or social situation, but because it is a requirement of justice or fairness or some other dimension of morality. A policy, on the other hand, is 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. However, according to Dworkin, there is no set standard to determine what these principles are since these keep changing from time to time. Moreover, principles describe rights while policies describe goals. This can be further understood by the example of case given by Dworkin himself. Arguments of principle justify a political decision by showing that the decision respects or secures some individual or group right. The case of Riggs v. Palmer. The question before the court was whether a murderer could inherit the will of the victim. The law was such that it did not carve out any exception for murderers. Thus, on the face of it, the murderer should be entitled to the property. However, the court applied the principle that ‘no man should profit from his own wrong’ and hence, the murderer could not inherit from his own victim. In this sense, the rule did not exist before the case was decided. Once the case is decided, the principle used to interpret a particular rule, gives the rule a new interpretation for the current case and all future cases to follow.

 

Dworkin’s ‘rights as trump’ theory stems from this wherein he argues that rights have a ‘threshold weight’ against community goals. If we are to respect individual rights, he argues, they must not be capable of being squashed by some competing community goals. The central question in any litigation is whether the claimant has a ‘right to win’; not whether the community’s interests should be satisfied.

 

Following this, Dworkin also articulates the role of judges i.e., discretion when faced with a legal issue. For this purpose, he invents a superhuman judge with superhuman skill and acumen called Hercules. When Hercules is faced with a ‘hard case’, he has to apply legal principles. Being a superhuman judge, he ought to look into the legislative purpose of a particular statute. He accepts that statute have the general power to create and extinguish legal rights and that judges have the general duty to follow earlier decision of their court or higher courts whose rationale extends to the case at bar.

 

Dworkin draws from the assumption that there is a written constitution in Hercules land, and he is faced with a legal issue. He might begin by asking why the constitution has any power at all to create or destroy rights. The constitution sets out a general political scheme that is sufficiently just to be taken as settled for reasons of fairness. Citizens take the benefit of living in a society whose institutions are arranged and governed in accordance with that particular political scheme. Thus, while deciding a case, Hercules will have to see which theory provides a better fit to the constitutional scheme as a whole.

 

Dworkin compares deciding cases to writing chapters in a chain novel. Suppose a group of writers are engaged in writing a novel. Some writers will write the first chapter, some the second and so on. However, in every subsequent chapter written by a writer, there will be some understanding of the chapter preceding it. Thus, every new chapter will be an addition to the novel and will thus be coherent with the previous chapters. In this sense, every writer will bear the responsibility of interpreting what the previous writer wrote and creating the next chapter. This, according to Dworkin, is similar to how judges should decide hard cases. He or she must read through what other judges in the past have written, not simply to discover what these judges have simply written, but to reach an opinion about what these judges have collectively done. A judge’s duty is to interpret the legal history he finds, not to make a better history. Moreover, there is always one ‘right answer’ to every legal problem; it is up to the judge to find it. This answer is ‘right’ in the sense that it coheres best with the institutional and constitutional history of the law. Legal argument and analysis is therefore interpretative in character. The judge, thus, exercises his discretion while interpreting what the previous judges have said.

 

4. CONSTITUTIONAL MORALITY IN INDIAN JURISPRUDENCE WITH RESPECT TO DWORKIN’S THEORY:

This paper will now towards analyzing Dworkin’s theory with respect to Indian judgements and how they have used the concept of constitutional morality.

 

For this purpose, this paper will be using some of recent landmark judgments including Naz Foundation vs Government of NCT of Delhi and Ors, Navtej Singh Johar v. Union of India, K.S. Puttaswamy vs Union of India, Indian Young Lawyers Association & Ors. vs State of Kerala and Ors

 

Constitutional morality can be classified as a non-rule standard. As mentioned in the preceding discussion, the words ‘constitutional morality’ does not find any mention in either the constitution or any other statute i.e., rule. This means that it would be applied as a non-rule standard i.e., a principle. Moreover, it is not that the concept of constitutional morality is purely a common law concept. To justify the application of this concept, the judges have talked about how the roots of the concept lie in the constituent assembly debates and what the constitution makers intended. This can be seen in light of Dworkin’s argument on the role of judges wherein he says that while deciding a case, the judges are restricted with preceding case laws, established theories or any other material which they think will lead them to the best answer to the legal issue before them.

 

Dworkin says that there is a connection between law and morality. Related to this is the distinction between rule and non-rule standard. However, In the case of constitutional morality, the rule and non-rule standard are not distinct from each other but can be found within each other. This is because, the morality is being derived from the law i.e., rule itself. This morality is not that of the public, community or even a judge. This morality flows from the constitution only and paramount any other forms of ‘morality’.

 

Before moving on to a case-to-case analysis of the concept, it is imperative to look into some of the common aspects of the cases mentioned earlier. In all these judgments, the courts have distinguished public morality from constitutional morality and has held the latter to trump the former. They have said that the only ‘morality’ that would pass the test of compelling state interest is ‘constitutional morality’ and not ‘public morality’. This is an important aspect of Dworkin’s ‘rights as trump’ theory which says that the main question in a litigation is whether the claimant is entitled to win and not because the community’s interests should be satisfied. The courts have also opined that public disapproval is no ground to deny a person his fundamental rights.

 

Coming first to the Delhi High Court case of Naz Foundation v. Govt of NCT of Delhi which held that treating consensual homosexual sex between adults as a crime is a violation of fundamental rights protected by India's Constitution. One of the key aspects of the judgment was the court’s use of ‘constitutional morality’. Before beginning to apply the concept of constitutional morality to the issue at hand, the court discussed the history of the doctrine. The court, thus, attempts to establish a basis for using the concept. It is not as if it is in isolation with legal history. Thus, conforming to the boundaries within which judges are supposed to exercise their discretion, as argued by Dworkin.

 

The court has also relied upon a South African case called The National Coalition for Gay and Lesbian Equality v. The Minister of Justice. This case enforced the idea of constitutional morality in the context of equal rights for homosexuals.

 

The 377 judgment goes a step further by holding constitutional morality as being representative of the spirit of the constitution and its values. Chandrachud, J. said that-

 

“The Preambular goals of our Constitution which contain the noble objectives of Justice, Liberty, Equality and Fraternity can only be achieved through the commitment and loyalty of the organs of the State to the principle of constitutional morality. It is the concept of constitutional morality which strives and urges the organs of the State to maintain such a heterogeneous fibre in the society, not just in the limited sense, but also in multifarious ways.”

 

The above extract is relating constitutional morality to the larger objective of the constitution as enshrined in the preamble. As mentioned in foregoing discussion, Dworkin argues that judges need to see which theory best fits in the constitutional scheme as a whole. Constitutional morality, as a concept, talks about the supremacy of the constitution.

It is interesting to note that in the Sabrimala Temple judgement, both the minority and majority opinion were supported by applying the principle of constitutional morality. This is indicative of the interpretative character of legal analysis and argument as stated by Dworkin. Going by Dworkin’s argument, it can be inferred that two judges can have differing opinions on the same legal issue due to the different ways in which they would view or interpret the same principle. Let us contrast the two and see if and how this contrast fits into Dworkin’s argument pertaining to the interpretative power possessed by the judges.

 

An extract from the majority view delivered by the then chief justice, Dipak Misra is as follows-

 

“In the public law conversations between religion and morality, it is the overarching sense of constitutional morality which has to prevail. While the Constitution recognizes religious beliefs and faiths, its purpose is to ensure a wider acceptance of human dignity and liberty as the ultimate founding faith of the fundamental text of our governance. Where a conflict arises, the quest for human dignity, liberty and equality must prevail. These, above everything else, are matters on which the Constitution has willed that its values must reign supreme.”

While interpreting constitutional morality, Misra, J. also relied on a particular extract from the case of Government of NCT of Delhi v Union of India, which highlighted the importance of constitutional morality. This reliance can be related to what Dworkin lays down as being part of the ‘role of judges’ while deciding a case. This previous stated version of constitutional morality can be inferred to act as a boundary within which the judges have to operate while presenting a legal analysis. However, as stated in section three, how the judge would interpret this precedent is up to his or her sense of morality.

 

An extract from the minority opinion delivered by Justice Indu Malhotra is as follows-

 

“Constitutional Morality in a pluralistic society and secular polity would reflect that the followers of various sects have the freedom to practice their faith in accordance with the tenets of their religion. It is irrelevant whether the practice is rational or logical. Notions of rationality cannot be invoked in matters of religion by courts. Constitutional morality requires the harmonization or balancing of all such rights, to ensure that the religious beliefs of none are obliterated or undermined.”

 

From the above two strands of minority and majority opinions, it can be observed that the concept of constitutional morality is considerably wide in its scope. We can situate Dworkin’s ‘interpretative character’ argument within this wide scope. However, Dworkin also suggests that due to the existence of what earlier judges have opined, the judges deciding future cases have a boundary within which they are required to produce judgments. Given the wide scope of this concept, these boundaries become faint giving the judges immense leeway to interpret.

 

5. CONCLUSION:

An analysis of case laws pertaining to constitutional morality shows that the concept is not confined to any one constitutional provision, rather represents the spirit of the constitution as a whole. This has given considerable authority to the judiciary to interpret the concept by taking various strands of arguments, even if they are contradictory to each other. Dworkin suggests that although judges have to present their legal analysis within restrictions imposed on them in the form of previous case laws, it is up to them as to how they interpret them. However, there is no fixed limit to interpretation as suggested by Dworkin. The concept of constitutional morality does conform to Dworkin’s theory is some respects but has its own unique features at the same time.

Dworkin's elucidation may not be accepted by legal parlance, but his contributions are nevertheless phenomenal. Jurisprudential schools in general and positivism in particular, are struggling with the problem of subjectivity and seeking theories which can be verified externally. Though, the human factor does play an indubitably important part in decision-making. Legal positivism seems to underplay the essential validity of sociological jurisprudence, and unduly isolates the moral tenets of natural law. Dworkin’s view seems to be closer to reality by including political morality in his decision-making process. On a careful analysis of the problem, he appears to be somewhere in the middle of legal realism, natural law and positivism. His stress on the extent to which the selection of rules and determination of their applicability to facts is controlled by principles penetratingly shakes-up the ‘ruling theory’ of positivism. His claim that political morality plays a pivotal role in determining the selection of principles serves to reunify law and morality. These contributions of Prof. Ronald Dworkin are substantial and praiseworthy, but the insistence on the presence of preexisting rights in institutional history yielding one right answer is not descriptive of the legal arena or the world.