BOOK REVIEW / Freedom heading for a judgement daze: Conor Gearty on Ronald Dworkin, an evangelical liberal trying to extend the empire of the law. 'Life's Dominion' - Ronald Dworkin: HarperCollins, 17.50 pounds
Saturday 12 June 1993
This great glory of American constitutional imperialism arrived some years ago in the land of the Saxon heathens. Their empire long gone, the natives were ready for a new religion. It was easy to convince them that the unwritten constitution they had had for centuries was a piece of out-of-date savagery. Just as a bad workman blames his tools, so a failing nation blames its constitution. The natives took the great missionary to their hearts, and like latter-day cargo cultists gave him a chair in an old university town as a symbol of their affection, from where various disciples have spread out preaching the new gospel of written constitutions, bills of rights, and judicial guardians. The Labour tribe has been converted, and even the Tories, with a plethora of peculiar little charters, are engaged not in battle but in imitation.
This book is both a brilliant demonstration of the skills of the great liberal master, and a warning to all the heathens of what lies in store if his gospel is embraced in full. It is 'an argumentative essay that engages theoretical issues but begins with, and remains disciplined by, a moral subject of practical political importance'.
That subject is the sacredness of human life and the way in which our commitment to life shapes our attitude to abortion and, to a lesser degree, euthanasia. Dworkin argues that the conflict between the 'pro-life' / anti-abortion movement and the 'pro-choice' groups is not the 'clash of absolutes' described by many commentators. This would be the case if the debate really rested on whether or not the foetus was a person. But the arguments of neither side hinge on such an insoluble question of definition. All but extreme 'pro-lifers' accept that abortion is permissible in certain narrow circumstances such as when there is a risk to the life of the mother or when there is incest or rape leading to an unwanted pregnancy. Similarly, the vast majority of the advocates of 'pro-choice' regard the decision whether to terminate as one of immense moral importance; there is no lobby for third trimester abortions on demand.
Dworkin deduces from this that both sides share a commitment to the sacredness of human life, and that they differ only in how they manifest this value. This leads him to reflect on two different versions of what life is about. If we believe that 'the natural investment in a human life is transcendently important, that the gift of life itself is infinitely more significant than anything the person whose life it is may do for himself', then our inclination will be to oppose most abortion and euthanasia. On the other hand, if we 'assign much greater relative importance to the human contribution to life's creative value', then we are far more likely to accept that life (whether living or merely potential) should be brought to an end if the alternative is 'a more serious evil' because the situation is such that 'further significant human investment is doomed to frustration'.
The first of these positions reflects what Dworkin calls the 'goal of conformity', in that its aim is to compel every individual to 'obey rules and practices that the majority believes best express and protect the sanctity of life'. In contrast, the goal of responsibility epitomised by the second requires that its citizens 'recognise that fundamental intrinsic values are at stake in such decisions and decide reflectively, not out of immediate convenience but out of examined conviction'. Dworkin the believing liberal is convinced of the rightness of the second, and argues passionately against the first.
This is a brilliantly argued and utterly convincing work by Professor Dworkin, the moral philosopher. It should be required reading for every member of every legislature that has to address the abortion issue. But here is the snag. Dworkin the constitutional scholar is on far shakier ground. For he does not see these ethical questions as to be decided by elected representatives; his version of democracy would hand them to the judges. This is already the case in the United States, and much of this book is taken up with trying to squeeze his moral philosophy into the old American constitution so as to make applying it over and above the wishes of domestic lawmakers not only morally right but also a constitutional and legal obligation. But as recent bitter disputes have proved in the US, there is no guarantee that judges will reach the right moral result, even if one exists. Judging is as political as politics - but without the politics.
If Professor Dworkin and his disciples get their way in Britain, and the European Convention on Human Rights is made part of UK law, then the issue of abortion will be decided by the judges here as well. Article 2 of the Convention guarantees the right to life, but does not define what life is. If this provision does become part of our law, then decisions about abortion will henceforth be made in the law courts rather than in Parliament. Has it occurred to none of the supporters of this change to ask a simple question: why has Britain avoided the bitterness of the abortion debate that has so poisoned the political discourse in the US, Canada, Ireland and Germany, where a hard-won legislative compromise between the former East and West German abortion laws has been struck down by the Constitutional Court. Eight lawyers decided that 'the unborn child has its own right to life'?
In all these countries, the issue has been confiscated from the people and handed to the judges, thereby engendering a strong sense of grievance and alienation among those deprived not only of victory but of the opportunity democratically to fight for victory. In contrast, our supposedly anachronistic, antediluvian society still - for all its faults - believes in politics. Laws are made and unmade by people we can reach and influence - our elected representatives. We should continue to resist colonisation within law's empire, even when the zealot is as mercurial as Professor Dworkin.
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