Shivangi Mishra
Throughout the course of the review, Ronald Dworkin’s “morality principles” incumbent upon the judges have been appraised by placing reliance upon Dworkin’s own archetypal manner of invoking semantics. It has been gleaned that Dworkinian morality pleads exposition in view of a possible permeation of the sociological and common-sensical subjectivities of the term in the domain of legal morality. It has as well been asserted that the moral reflection premise proffers an interdisciplinary and inclusive room for the judges to adopt welfarist judicial decision-making measures. This room for creativity has facilitated the adoption of substantive and procedural due process doctrines in the domain of Indian constitutional jurisprudence that otherwise remained confined to “procedure established by law.”
Introduction: Defining the Standards of Morality in Dworkinian Jurisprudence
In Justice in Robes, Ronald Dworkin presents a fastidious evaluation of a judge’s moral (as also personal) background that influence the decisions rendered in arriving at a judicial determination. The very nature of the study that Dworkin has undertaken in the book prompts the readers to measure the interplay of a judge’s social background and the entailing cognitive values in the verdict so pronounced. Largely regarded as an anti-positivist, Dworkin, in Justice in Robes attributes individual morality of the judges as the chief guiding factor behind their judicial pronouncements as against the positivist underpinnings that allude to rigid adherence to established legal principles. The element of morality espoused by Dworkin is best illustrated when distinguished from the concept of morality advocated by H.L.A. Hart. While treading along positivist lines, Hart supports the concept of morality in the realm of law only till the point it garners the support of state agencies[1]. On the other hand, Dworkin proposes that the element of morality precedes law as well as law-making. Dworkin’s conception evinces that “moral considerations are invariably relevant, even in instances where the concerned officials disagree on the moral aspect of a legal problem”.[2] Judicial decision-making implores technical expertise and objectivity, and hence even when Dworkin asserts that morality must be the driving force when judges arrive at a decision, it is still tacitly incumbent upon the judges to conform to the objective dimensions of the moral rationales behind a statutory enactment as against the mere floating notions of sociological morality that are subject to caprice.
Sociological Morality Versus Objective Considerations of Legal Morality
The abovementioned objective-morality as opposed to the malleable contours of social morality can be illustrated by a scenario where a pedestrian/passer-by who as well happens to be a surgeon fails to attend to one random ailing individual by the roadside. In such a case, even though the omission of the surgeon would invite a moral-sociological breach of duty, he however cannot be penalised for a legal omission as the objective considerations of legal morality spring into action only when there exists a determinate legal relationship between the patient and the surgeon, so as to hold the latter criminally liable for such omission. In the same set of facts, had the ailing individual, in the capacity of a patient, visited the clinic where the surgeon, in a professional capacity dispenses the functions of treating and operating visiting patients, the latter could have been held guilty for such omission owing to a duty of care flowing from a legal relationship that is in turn backed by an objective moral premise of attending to patients in need of medical assistance. This alludes to the fact that in an arena as technical and far-reaching as judicial decision-making, Dworkinian moral prescriptions cannot be accorded an undefined sociological interpretation. The morality requirements that Dworkin asks of the judges must answer the standards of legal objective morality. Quite palpably, in his ambitious endeavour to model judicial decision-making along the lines of morality, Ronald Dworkin fails to prescribe a yardstick that could differentiate between the “internal moral claims” as advocated by Dworkin, and plain “sociological observations” that rely heavily on the whims of time and tide. Consonantly, Dan Priel elucidates that in the absence of an exposition on the meaning and application-guidelines of Dworkinian morality, the morality standards that judges are required to observe become susceptible to the easily accessible notions of sociological and common sensical morality.
“…he (Ronald Dworkin) often relies on “sociological” observations about moral discourse as if they are part of morality, or at least as supporting his view about the objectivity of morality. For instance, he has argued that “people who say that it is unjust to deny adequate medical care to the poor do not think that they are just expressing an attitude or accepting a rule or standard as a kind of personal commitment. They think they are calling attention to something that is already true independently of anyone’s attitude, including theirs…But this seems like a sociological fact, which by Dworkin’s lights should be irrelevant for understanding the content of moral concepts. Why are such empirical observations (for which, by the way, Dworkin offers no evidence) within the domain of morality?[3]
Since Dworkin’s notion of morality is devoid of an objective understanding in terms of its application in the real legal world, it carries the propensity of merging with the “common sense conception of morality” that exerts universal application by virtue of its intelligibility. A common-sense-conception-of-morality would be implausible in the legal world owing to its subjective and ill-defined corollaries.
A Comparison Between Dworkin’s Judicial Decision-Making and the Realist School of Jurisprudence
The moment Dworkin chooses to draw an interlinkage between the individual personality of a judge and the decision so delivered, he invariably (and possibly, inadvertently) enters the domain of the Realist school of jurisprudence. Dan Priel elucidates that while law is being made at the hands of the judges as a result of the “workings of the court,” Dworkin yet implores judges to consider and tackle the moral issues of a legal issue that come up before them[4], thereby reformulating the character of law in the hues of morality. Dworkin invariably takes recourse to the Herculean model[5] when he endeavours to delineate an itinerary concerning the manner a judge’s moral convictions must bear on his judgements regarding what law is. As a proponent of the Herculean model, Dworkin proposes a conflation of law and politics. This conflation threatens the impartiality, rectitude, and principality of judicial administration. D. Priel underpins the pressure of superfluous legality that the Herculean frame of adjudication puts upon the judges, that in turn converges with the political environment,
“As a result, the Supreme Court (of United States) has often become a forum of personal instead of forum of principle”.
It is noteworthy that Ronald Dworkin does offer a neatly structured description of the Herculean model wherein adjudication is rooted in “correct moral principles” (a phrase that pleads exposition) as “discovered by moral reasoning.” Bereft of an understanding of the parameters of moral principles and moral reasoning, Dworkin, in the Herculean model, presents a utopian benchmark. Scholars in the legal circle have been largely apprehensive as plain adherence to the considerations of morality poses the risk of judges entering the political domain as the ideals of sociological morality (or as Dan Priel enumerates common-sense-conception-of-morality) that Dworkin apparently endorses, is often largely swayed by popular undercurrents.
While deliberating on judicial law-making, Dworkin implores judges to apply a principle of ‘articulate consistency’ in determining the relevance of statutes and precedents in cases that come up before them[6]. Further, Dworkin presents a normative claim that “while deciding cases, judges ought to display moral integrity, and must strive to be fair to the parties that in turn implies being faithful to the legal rights of the parties[7]. Dworkin’s study of the workings of the court can be contradistinguished from Holmes’ realism[8] in as much as the realist school merely attempts to appraise law in action through the functioning of the court, whereas Dworkin’s moral reflection compass emphasises on prescriptions of morality in adherence to which the Courts are bound to function. While Holmes’ realism underpins the value of passive observance of court procedures and judicial decision-making, Dworkin’s morality comes infused with a didactic tone that regulates judicial conduct.
An Exposition of General Moral Principles and Moral Reflection: Dworkin Promises an All-Encompassing Interpretation of Law?
All criticisms aside, Dworkin’s Justice in Robes does hold promise in its multidimensional framework in approaching law and the process in which legal principles are formulated. In tandem with Tatiana Patrone’s reaffirmation of Dworkin’s eclectic answer to the academic query, ‘What is the force that makes a proposition of law true or false?’[9], Justice in Robes helps us discern the philosophical, metaphysical, ethical, semantic as well as political underpinnings of the legal system. Furthermore, T. Patrone avers that this inter-disciplinary comprehension of law through the lens of philosophy, semantics, metaphysics, ethics and politics provide the ground for an incisive analysis of the competing legal philosophies such as positivism, pragmatism and pluralism.
Brian Leiter further supplements the inclusive and all-encompassing character of Dworkin’s morality by embarking on an interpretation of the “general moral principles” so fiercely put forth by Dworkin[10]. Leiter remarks that “general moral principles’ constitute values of “political decency and justice,” a phrase that albeit leaving ample room for subjectivity, carries the resolve of preserving the bedrock of Constitutional ethos. Moreover, Dworkin as well enumerates the entailing need for judges “who interpret and apply the provisions of the Constitution to engage in a systematic moral reflection in a manner similar to that adopted by philosophers.” By recourse to the phrase, “moral reflection”, Dworkin makes it incumbent upon the judges to refrain from a plain and mechanical appraisal of the legal problem at hand. The moral reflection that Dworkin urges the judges to undertake while arriving at a judicial determination comprises of an inclusive, meticulous, and holistic appreciation of the case at hand. This moral reflection is practiced in a fashion where the judges tread beyond the mechanical application of legal principles and statutory rules in a bid to take into account the antecedent factors, the extenuating and aggravating circumstances, the ethical notions, and the possible ramifications of the verdict upon the concerned parties, their families and the larger society. When critics bring Justice in Robes under fire owing to the poorly defined undertones of “moral principles and moral reasoning,” they flounder in comprehending the elastic nature of the terminologies so resorted. Such elasticity leaves enough room for purposive and welfarist appreciation of the special facts and circumstances that each independent case brings along. Leiter’s account underscores the libertarian and egalitarian spirit of Dworkin’s, “general moral principles,” “political decency and justice,” and “moral reflection” expected of judges,
“As an outcome of Dworkin’s moral reading of the Constitution, critics point out, that a sustained defense of a liberal position on most constitutional questions, from affirmative action to abortion has been unleashed… Finally, in a series of articles starting in the 1980s and culminating in his 2000s book ‘Sovereign Virtue’, Dworkin has defended a distinct brand of liberal egalitarianism which has commanded substantial attention from political philosophers investigating the theory of equality.”
Dworkin’s Morality Premise: Reflections in Indian Judicial Decision-Making
The inclusive character of Dworkin’s moral-reflection-premise bears striking semblances with the legal sentiments of constitutional morality[11] and transformative constitutionalism[12] demonstrated by the Indian Supreme Court roughly over the last fifty years. This judicial awakening, in comport with Dworkinian moral reflexivity, was most conspicuously witnessed with the pronouncement in I.C. Golakhnath v. State of Punjab[13], wherein the Court took a giant leap away from literal interpretation to formulate the doctrine of prospective overruling. Inferably, the capacious frontiers of Dworkinian “moral reflexivity” have been interpreted by the Indian Supreme Court in a fashion that does not merely obligate the judges to adjudicate mechanically upon right or wrong; just or unfair; successful claims or defeated claims; and the winning or losing party. Rather, the non-rigid parameters of the moral-reflexivity-premise have ostensibly allowed the Apex Indian Court to streamline the ingress of legal moral values such as substantive equality, transformative constitutionalism, and constitutional morality.
A conflation of the notion of substantive equality with Dworkinian-morality is best illustrated through the Indian Supreme Court’s decision in Lt. Col. Nitisha v. Union of India[14] wherein the bench comprising Justices D.Y. Chandrachud, M.R. Shah and Sanjeev Khanna orchestrated a departure from the traditional notions of formal equality and direct discrimination to assimilate substantive equality within the corpus of Indian jurisprudence. The introduction of substantive equality in the Indian jurisprudential milieu is noteworthy as the concept operates in an ambit that does not merely emphasise on achievement of blind equality and its apparent corollaries. Rather, the concept of substantive equality strives to achieve equality not just as a mere ideal, but as a thriving outcome that ensures operationalisation of equality in the real world as a living reality. In consonance with the pursuit of realising equality as a perceptible consequence, the device of substantive equality works conjunctively with the rule against indirect discrimination that scrutinises, identifies, and eliminates seemingly fair and neutral manoeuvres that are devised to circumvent the true essence of equality, whether in the form of structural or systemic hurdles in public offices or employment[15].
The Lt. Col. Nitisha verdict delivered by the three-Judge bench of the Supreme Court evinces its allegiance to legal objective morality wherein legal morality is comprehended as distinct from capricious notions of sociological morality. Moreover, the present verdict demonstrably signals the resolve of judiciary to uphold the spirit of constitutionalism that does not merely regard the Constitution as a dry letter but as a living testimony that responds to socio-legal exigencies[16], or more simplistically, “a result-oriented rhetorical device rather than a coherent theory of constitutional interpretation.”[17] Taking cues from the American jurisprudential stance in Griggs v. Duke Power[18], the Indian Supreme Court in Lt. Col. Nitisha progressively deviated from the unidimensional trappings of formal equality to adopt a comprehensive working formula that substantively achieves equality. This leads us to the transformative dimension of constitutionalism that is, in turn, interwoven with Dworkinian-moral-reflexivity. The transformative arm of constitutionalism embraces objective moral undertones in its bid to refrain from blind adherence to regressive status quo by segregating minority interests, and representation of the underrepresented from prevailing mainstream mores and practices.
The Indian Supreme Court has, in a string of verdicts, such as, Maneka Gandhi v. Union of India[19], Navtej Singh Johar v. Union of India[20], Anuj Garg v. Hotel Association of India[21], Justice K.S Puttaswamy v. Union of India[22], and Indian Young Lawyers’ Association v State of Kerala[23] exemplified its resolve to challenge the entrenched albeit unjust status quo in order to uphold the spirit of constitutional morality and transformative constitutionalism.
Most notably, the Supreme Court in January 2023, delivered a groundbreaking verdict in Kaushal Kishor v. Union of India[24] wherein fundamental rights, specifically Articles 19 and 21, were assigned horizontal application in distinction with their erstwhile vertical applicability. The verdict drew considerable flak from scattered legal circles as it permitted fundamental rights to be enforceable against private entities, in addition to state and its instrumentalities. Such interpretation, as it is alleged by critics, wields the propensity to topple the original constitutional framework of fundamental rights which were designed to be enforceable against the state alone. However, in synchrony with the viewpoint represented by David Bilchitz and Surya Deva[25], the horizontal applicability of fundamental rights to private and non-state actors marks a beacon of progressive, transformative, and purposive change as the verdict widens the ambit of protection guaranteed by the Constitution.
Conclusion
After having undertaken an appraisal of the strengths and deficits in Dworkin’s notion of morality in Justice in Robes, a synthesis has been proposed bearing in mind Wayne Morrison’s averment. Morrison quips that the practice of law consists of reflection, reflexivity, theoretical clarification and criticism, all intertwined by the larger concept of morality.[26] Dworkin’s moral-reasoning-compass can be borrowed in the contemporary dynamics of court procedure and judicial decision-making wherein judges must refrain from a mere reproduction/ application of existing statutory rules and blind adherence to stare decisis. An inclusive understanding of Dworkin’s “moral reflection” reveals that the judges must adopt an encompassing viewpoint that considers the socio-economic, psychological, political, semantic, antecedental, and consequent societal and familial undertones of the case at hand, in an endeavour to keep the vice of mechanical interpretation of the legal word at bay. Furthermore, Abhinav Chandrachud opines that the welcome emanation of substantive and procedure due process from the Indian legislative stance of ‘procedure established by law” in a bid to make “judicial access” realisable is squarely attributable to progressive judicial decision-making[27]. This farsightedness demonstrated by Indian Supreme Court judges resonates the ‘moral reflexivity’ postulate that Dworkin expects of the judges to exemplify while interpreting the cases at hand.
Shivangi Mishra is currently pursuing masters in personal laws at Jamia Millia Islamia University, New Delhi.
[1] Green, Michael S., “Dworkin v. The Philosophers: A Review Essay on Justice in Robes”, William & Mary Law School Scholarship Repository (2007), 22.
[2] Id.
[3] Priel, Dan, “Book Review: Justice in Robes by Ronald Dworkin”, Osgoode Hall Law School of York University (2006), 255.
[4] Id.
[5] Pannick, D. “A Note on Dworkin and Precedent,” Modern Law Review, 43, 1 (1980), 36.
[6] Morrison Wayne, Jurisprudence: from the Greeks to Post-Modernism (Cavendish, 1997) 421.
[7] Id.
[8] Paul, Julius, Foundations of American Realism, 60 West Virginia Law Review (1957) 37.
[9] Patrone, Tatiana, Metapsychology Online, De Gruyter <https://www.degruyter.com/document/doi/10.4159/9780674269118/html> accessed 29 May 2023.
[10] Leiter, Brian, “Book Review (reviewing Ronald Dworkin, ed., Justice in Robes (2006) & Scott Hershovitz, ed., Exploring Law’s Empire: The Jurisprudence of Ronald Dworkin’ Journal of Legal Education, University of Chicago Law School (2006) 56.
[11] Ahmad, Md. Zeeshan, ‘The Challenge of Constitutional Morality before the Supreme Court’ (The Leaflet, 26 Mar, 2020) https://theleaflet.in/the-challenge-of-constitutional-morality-before-the-supreme-court/ accessed 26 Jun 2023.
[12] Choudhry, Sujit, ‘Postcolonial Proportionality: Johar, Transformative Constitutionalism, and Same-Sex Rights in India’, The Global South and Comparative Constitutional Law, Oxford Academic, (2020).
[13] 1967 AIR 1643.
[14] Writ Petition (Civil) No 1109 of 2020.
[15] Inspector (Mahila) Ravina v. Union of India, W.P.(C) 4525/2014.
[16] Tobin Alex, ‘The Warren Court and Living Constitutionalism,’ Indiana Journal of Law and Social Equality (2022) Vol. 10, 1.
[17] Redish, Martin H, Arnould, Matthew B., ‘Judicial Review, Constitutional Interpretation, and the
Democratic Dilemma: Proposing a “Controlled Activism” Alternative,’ 64 FLA. L. REV. (2012) 1485, 1517.
[18] 401 US 424 (1971).
[19] AIR 1978 SC 597.
[20] AIR 2018 SC 4321
[21] (2008) 3 SCC 1.
[22] AIR 2017 SC 4161.
[23] WRIT PETITION (CIVIL) NO. 373 OF 2006.
[24] WRIT PETITION (CRIMINAL) NO. 113 OF 2016.
[25] Bilchitz, David, Deva, Surya, ‘The Horizontal Application of Fundamental Rights in India: “Kishor” (Baby) Steps in the Right Direction?’ (IACL-AIDC, Apr 25 2023) https://blog-iacl-aidc.org/2023-posts/2023/4/25/the-horizontal-application-of-fundamental-rights-in-india-kishor-baby-steps-in-the-right-direction accessed 28 Jun 2023.
[26] Supra at 4.
[27] Abhinav Chandrachud, Due Process of Law (Eastern Book Company 2011) 163.
