William Godwin condemned both the "absurdity" and the "iniquity" of punishment according to the general category of crimes committed. "No crimes were ever alike" he said.28 According to Godwin:
There is no maxim more clear than this, "Every case is a rule to itself." No action of any man was ever the same as any other action, had ever the same degree of utility or injury. It should seem to be the business of justice, to distinguish the qualities of men, and not, which has hitherto been the practice, to confound them.29
It is not "real justice," according to Godwin, to proceed by "reducing all men to the same stature" according to the crime committed. Rather, justice requires "contemplation of all the circumstances of each individual case."30 Note, however, that the opposite positions of Godwin and Holmes on individualized punishment do not reflect differences in "value premises." Holmes, like Godwin, regarded it as morally superior to individualize criminal punishments or civil liability judgments, but simply regarded this higher morality as beyond the capability of human courts. They differed in empirical assumptions rather than in value premises.
The emphasis on individualizing criminal justice has remained part of the unconstrained vision over the centuries. John Dewey, for example, said:
The dawn of truly scientific criminal law will come when each individual case is approached with something corresponding to the complete clinical record which every competent physician attempts to procure as a matter of course in dealing with his subject.31
In the unconstrained vision, it is not only the justice of punishment but also its efficacy which is at issue. According to Godwin, punishment is "inimical to the improvement of the mind" because incentives of reward and punishment are distractions from the real reasons why one kind of behavior is socially preferable to another.32 In Godwin's view, "moral improvement will be forwarded, in proportion as we are exposed to no other influence, than that of the tendency which belongs to an action by the necessary and unalterable laws of existence." Man needs to be "governed by the moral arithmetic of the case," realizing that the well-being of many others is more important than his own.33
While the constrained vision takes people's motives and predispositions as given, and emphasizes incentives to lead to socially desired behavior, the unconstrained vision attempts to change people's motives and predispositions, so that incentives in general are less important, whether in the economic marketplace or in the law.34 The unconstrained vision seeks a solution- in Condorcet's words, "the reconciliation, the identification of the interests of each with the interests of all," so that "the path of virtue is no longer arduous."35
From the standpoint of the unconstrained vision, the issue is not how best to structure incentives currently but how to rely less and less on incentives over timeespecially the incentive of punishment. Social institutions should aim at seeing "men influenced by other and better motives." The statesman should "be careful not to add rigor to the selfish passions," but instead to "gradually wean men from contemplating their own benefit," as incentives in general tend to cause them to do.36 Godwin wished to see men more concerned with their duties and rights than with rewards and punishments.37
Just as the two visions see the nature and role of rewards and punishments very differently, so they see the development of law in quite different terms. For Condorcet, progress in the law was conceived as the deliberate work of outstanding individuals:
Laws are better formulated and appear less often to be the vague product of circumstances and caprice; they are made by learned men if not yet by philosophers.38
Further advancement was conceived by Condorcet in similarly rationalistic terms:
The creation of a system of criminal jurisprudence would be a huge enterprise demanding time, work, and a luminous intelligence in those undertaking it, and a profound mind in the man charged with responsibility for planning and executing it.39
The unconstrained vision has continued to emphasize the deliberate creation of law, by both legislators and judges, in order to produce desired social results. It rejects the emphasis of the constrained vision on the characteristics desirable in legal processes, as such, and especially the attempt to make the judge's role essentially that of a neutral transmitter of process principles created by constitutional or legislative enactments. Where process principles have disparate impact on different social groups, the neutrality of the principle and the judge are deemed illusory, if not hypocritical.
The emphasis on process has been called by Laurence Tribe "the dangerous allure of proceduralism." The attempt to evolve principles aimed at the general benefit of society without regard to their differential impact on subsets within society he characterized as "the paralyzing seduction of neutrality," and the vision of an incrementally evolving law he described as "the morally anesthetizing imagery of the natural." It was the social result that was crucial, "the hidden (and sometimes notso-hidden) tilt of various constitutional doctrines toward the perpetuation of unjust hierarchies of race, gender, and class" which he found offensive, and the attempt to "deflect judicial responsibility for crucial substantive choices" which he found questionable.40
Tribe's viewpoint "questions all formulas as devices for concealing the constitutional choices that we must make-and that we cannot responsibly pretend to 'derive' by any neutral technique."41 In short, the issue is not process principles but social results, not transmission of law derived from incremental evolution in the past but deliberate choices made in the present. Tribe denies that this means "anything goes" in judicial interpretation,42 but argues that interpretation of texts is "inescapably subjective," so that the interpreter has "no escape from the need to make commitments of significant premises" of social morality.43
We must make choices but renounce the equally illusory freedom to choose however we might wish to choose. For it is a Constitution- a specific, necessarily imperfect Constitution- in whose terms we are, after all, choosing.44
Judges thus must get into "the kind of controversial substantive choices that the process proponents are so anxious to leave to the electorate and its representatives."45 To Tribe, "the Constitution is inevitably substantive"46 so that those who interpret it must decide issues taking substantive results into account. In short, to Tribe the written law is neither irrelevant nor all-determining. The Constitution "is not simply a mirror, nor is it an empty vessel whose users may pour into it whatever they will."47
As an example of the difference between processbased judicial decisions and a more substantively based decision, Tribe criticized court rulings which upheld the legality of applying certain physical standards to particular job applicants, regardless of sex, "blithely ignoring sex-specific physical differences that make the 'similar' treatment of men and woman invidious discrimination."48 A number of sex-difference cases demonstrate to Tribe that "pervasive inequalities in the distribution of power and status are overlooked," that "the evils to be extirpated" are instead allowed to flourish as part of "the omnipresent realities that the legal order simultaneously reflects and re-creates with relentless rationality."49
In a similar vein, Ronald Dworkin called for "a fusion of constitutional law and moral theory." The Constitution itself "rests on a particular moral theory" and must be understood as appealing to moral concepts rather than laying down particular conceptions"- that is, it is to be interpreted broadly as moral values to be applied rather than as explicit rules to follow. Any court that undertakes the burden of applying constitutional clauses "must be an activist court, in the sense that it must be prepared to frame and answer questions of political morality"50
INDIVIDUAL RIGHTS
Both visions believe in rights. But rights as conceived in the unconstrained vision are virtually a negation of rights as conceived in the constrained vision. Social theorists in both traditions recognize that rights are not absolute, and there are variations within both visions as to the weights given one right over another when they conflict, as well as differences in the scope accorded a part
icular right. But the fundamental difference between the two visions is in what the very concept of rights means.
The Constrained Vision
As already noted in Chapter 7, the constrained vision thinks of legal boundaries within which private individuals and groups may make their own decisions, without being second-guessed by political or legal authorities as to whether those decisions are wise or foolish, noble or mean. From the standpoint of the constrained vision, the scope of those boundaries of immunity from public authority are the scope of people's rights. This is a process conception of rights-the legal ability of people to carry on certain processes without regard to the desirability of the particular results, as judged by others.
Although these rights, as zones of immunity from public authority, belong to individuals, their whole purpose is social, in the constrained vision. In that vision, the sacrifice of the individual for the social good has a long tradition going back at least as far as Adam Smith in philosophy and economics, and Holmes and Blackstone in American and British law, respectively. Yet it is precisely this tradition which has consistently emphasized the importance of individual property rights, for example. The crucial benefits of property rights have been conceived as social- as permitting an economic process with greater efficiency,51 a social process with less strife, 52 and a political process with more diffused power and influence than that possible under centralized political control of the economy.53 The beneficiaries of such processes are conceived to be the population at large, and the justification or lack of justification of property rights is made to rest on that basis.
In the same way, rights of free speech are zones of immunity from public authority, without regard to whether what is said is wise or foolish, noble or mean. In two of Holmes' best-known free speech opinions on the Supreme Court, he rested his conclusion in favor of free speech on social expediency, not the superior rights of the individual. In Abrams v. United States, Holmes pointed out that this social expediency derived from the inherent limitations of man's knowledge and the crucial trade-off this implied. "Persecution for the expression of opinions" would be "perfectly logical," he said, provided "you have no doubt of your premises." Holmes continued:
But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundation of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge.54
This opinion encapsulated key features of the constrained vision: (1) the test of truth by social process rather than articulated rationality, (2) inherent human limitations- man's "imperfect knowledge"- as the reason for relying on social processes, and (3) reliance on experience as the overall rationale ("time has upset many fighting faiths").
The primacy of social interests over those of the individual appeared both in this opinion and later in Schenck v. United States. In Abrams, while Holmes urged eternal vigilance against the suppression of opinions considered loathsome and dangerous, his proviso was "unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is necessary to save the country"55 This was a clear forerunner of his more famous proviso of a "clear and present danger" standard in Schenck. In both cases, the public interest was considered paramount, with free speech being a derivative right of the individual, precisely in order to serve that public interest-and therefore subject always to annulment when it directly and unmistakably threatened the public interest itself. Finally, the right of free speech, whatever its scope or limitations, meant purely and simply an exemption from public authority. It did not imply any facilitating activity by the authorities.
The Unconstrained Vision
Unlike the constrained vision, which sees individual rights as instrumentalities of the social process-their scope and limits justified by the social processes from which they are derived-the unconstrained vision sees rights as inhering in individuals for their own individual benefit and as fundamental recognitions of their humanity. Free-speech rights or property rights are therefore justified or not by their relative importance to the individuals who exercise them. Given the uneven distribution of property and the universality of speech, freedom of speech logically becomes a far more important right than property rights in this vision. Freespeech rights are thus entitled to sweeping exemptions from interventions of public authority, but not so property rights. Dworkin dismissed "the silly proposition that true liberals must respect economic as well as intellectual liberty ...."s6
Issues involving property rights are seen in a results context in the unconstrained vision of Dworkin and Tribe, rather than a process context. While those with a constrained vision focus on the incentive effects of a property-rights system on the economic process, those with the unconstrained vision focus on such social results as the existing distribution of property. Laws safeguarding property rights are thus viewed in the unconstrained vision of Laurence Tribe as "immunizing from majoritarian rearrangement extant distributions of wealth and economic power, almost as though such patterns and distributions of capital reflected something decreed and indeed sanctified by nature rather than something chosen by the polity"57 Property-rights issues are to Tribe issues concerning "the existing distribution of capital."58 Doctrines espousing property rights represent a "tilt against redistribution."59 The "rights of property and contract" supported by the framers of the U.S. Constitution represent "substantive values." Therefore, Tribe finds it "puzzling that anyone can say, in the face of this reality, that the Constitution is or should be predominantly concerned with process and not substance."60 According to Tribe, "seemingly neutral principles" in theory turn out in practice to "tilt decidedly in the direction of existing concentrations of wealth and influence."61
Free-speech rights have likewise been viewed by Tribe in a substantive results context:
The decline of traditional public forums such as parks and streets has been accompanied by the rise of privately owned shopping centers as key locations for reaching the public; inexpensive methods of communication such as leafletting, picketing, and soapbox orating have given way to expensive media such as electronic broadcasting, newspaper advertising, and direct mail.62
In short, "speech, as it now comes to us, is usually anything but 'free,"'63 according to Tribe, and "free expression has not, in truth, been available to all."64 This conception of free speech, like the conception of freedom in general in the unconstrained vision, is clearly a results conception, unlike Holmes' process conception in which all that was at issue was exemption from limitation by governmental authority. This cost conception of free speech has not been limited to Laurence Tribe or other legal theorists. The U.S. Supreme Court, in a series of cases involving the handing out of leaflets on private property (housing developments, shopping malls) in violation of the owners' prohibitions, ruled in favor of those handing out the leaflets, citing the expensiveness of alternative modes of exercising free-speech rights as a reason for overriding property rights.65 Had the court not sided with those arrested under trespass laws, according to Tribe, it would have meant that local property laws would have "denied the protection of the First Amendment to the residents of company towns and those who wished to communicate with them."66 There would have been a denial of free speech, by this conception, even though the content of what was saidat some other location- would have remained exempt from government authority.
SOCIAL JUSTICE
William Godwin's Enquiry Concerning Political justice in 1793 may have been the first treatise on social justice. The term "political" in its title was used in the sense common
at the time, referring to organized societymuch as the contemporary expression "political economy" referred to the economics of society, as distinguished from the economics of the household. In short, Godwin wrote on social justice, as that term is used today. Social justice, as depicted by Godwin, was a pervasive and demanding duty. He said "our debt to our fellow men" includes "all the efforts we could make for their welfare, and all the relief we could supply to their necessities." According to Godwin: "Not a talent do we possess, not a moment of time, not a shilling of property, for which we are not responsible at the tribunal of the public, which we are not obliged to pay into the general bank of common advantage."67 He rejected "the supposition that we have a right, as it has been phrased, to do what we will with our own." He denied its premise: "We have in reality nothing that is strictly speaking our own."68
However, these were all moral duties, not political duties, such as might be imposed by a welfare state or a socialist government. It was the imperative moral force of such heavy social duties which made it unnecessary for Godwin (or Condorcet) to invoke governmental power to effect the kind of social changes today identified with the state-and for both to support property rights and laissez faire,69 as far as government's role was concerned. It is not difficult, however, to see how the kind of social analysis pursued by Godwin and Condorcet has led others to oppose laissez-faire economics and to have reservations about property rights, if not outright opposition to the concept. It was their faith in the power of reason to eventually make moral duties effective guides to individual conduct which made it unnecessary for Godwin or Condorcet to resort to government as the instrument of the sweeping social changes they sought. (This also illustrates the pitfalls of mechanically translating unconstrained and constrained visions into the political left and right, since Godwin and Condorcet were more "radical" than many on the left who would not share their reluctance to touch property rights or invoke government planning.)
A Conflict of Visions: Ideological Origins of Political Struggles Page 17