Abstract
In this chapter, I develop the idea of obeying the law with what Dworkin calls the protestant attitude. Given the protestant attitude, I argue, obeying the law might require citizens paradoxically to disobey it, i.e., the prevailing authoritative account of it, and subject their own interpretation to the test by the courts. I discuss the implication of this approach for democracy. As the protestant attitude has the potential of seeing settled law as unsettled, the paper ends with a brief discussion of the protestant attitude in relation to Dobbs and the development of the right to abortion and its future in American law.
I dedicate this chapter to the memory of Kenneth Henley, a long-time member of AMINTAPHIL who passed away in January, 2022. Henley (1990) has influenced my thinking about the subject. I am also grateful to the participants in the Wake Forest Philosophy Department Work-in-Progress Workshop and 2022 AMINTAPHIL Conference for their comments on earlier drafts of this chapter. I am particularly indebted to Imer Flores for his written commentary, which is incorporated in Flores (2024).
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Notes
- 1.
The title of Lee (2015), “The Judgeship of All Citizens: Dworkin’s Protestantism about Law,” is to make this parallel explicit.
- 2.
Lee (2015) contains a more complete and detailed account of Dworkin’s protestantism that I can give in this chapter.
- 3.
There may not be a general account of how to assign weight to a new political decision in interpreting the law in accordance with the theory of law as integrity. The fact that the decision, either in the form of a court decision or a piece of legislation, is recent and new may carry a greater weight for an interpretation if it conflicts with an earlier decision. Even that, however, is not absolute and would require judgement and the use of other considerations.
- 4.
Pp. 138–144.
- 5.
These cases are sometimes referred to as “super-precedents”. Roe v. Wade, to be discussed later, is an example.
- 6.
There are the two dimensions of legal interpretation in law as integrity, namely, fit and appeal. It should also be noted that this view about precedents is consistent with stare decisis, which gives precedents authority and makes them difficult to overturn, as long as it does not preclude the possibility that they can be overturned with very weighty considerations.
- 7.
Martin Luther King states very clearly in Letter from Birmingham Jail that his justification for parading without a permit is that the permit ordinance was unjust because it is “used to preserve segregation and to deny citizens the First Amendment Privilege of peaceful assembly and peaceful protest…” King continues, “Of course, there is nothing new about this kind of civil disobedience.”
- 8.
Dworkin (1977), Ch. 8.
- 9.
I am grateful to Nikki Souris for pointing out this difficult problem to me.
- 10.
For example, a doctor contending with a state law that treats performing abortion at any stage of pregnancy as murder might think such a law egregiously incompatible with what she interprets to be the political morality in the law. Should she feel obligated to violate that law to bring a challenge to it? There would be too much at risk in such a challenge, in my view, for it to be a matter of political obligation, but more a matter of political supererogation, so to speak.
- 11.
Dworkin writes in Dworkin (1977), “…the government has a special responsibility to those who act on a reasonable judgment that a law is invalid. It should make accommodation for them as far as possible, when this is consistent with other policies.” (p. 217)
- 12.
I am grateful to Gordon Babst for a comment that has promoted me to clarify this point about the democratic significance of the protestant attitude.
- 13.
Waldron (2006), pp. 1354–1355.
- 14.
One can perhaps say that it is also motivated by the concern for individual rights. But that would require making the connection between the Rights Thesis in Dworkin’s earlier work and law as integrity in Dworkin (1986), a connection that I cannot make here.
- 15.
One can transform Waldron’s question about whether the courts are more competent or better at identifying and protecting rights than a democratic legislature into a question, for the purposes of the protestant attitude, whether the courts are better at and more appropriate than a democratic legislature for identifying the scheme of principle of the community. Dworkin seems to think the courts are the place for it. He refers to courts as “forums of principle.” I would only add that for courts to be forums of principles, it would be helpful that some of the cases they have to decide involve matters of principle. That might depend on citizens taking the protestant attitude in deciding how they comply with the law, as in what I call protestant obedience.
- 16.
One might take issue with the anti-abortion activists’ interpretation of the law that regards Roe or Casey as a mistake from the point of view of law as integrity. That, however, does not detract from the claim that they were taking a protestant attitude toward the law.
- 17.
This is what I take to be a central point of Flores (2024).
References
Literature
Dworkin R (1977) Taking rights seriously. Harvard University Press, Cambridge
Dworkin R (1986) Law’s empire. Harvard University Press, Cambridge
Flores I (2024) Authority, Fidelity, and Integrity in Law. In: Babst G, Souris RN, McGregor J (eds) Liberal constitutionalism and its contemporary challenges, Springer
Hart HLA (1961) The concept of law. Oxford University Press, Oxford
Henley K (1990) Protestant hermeneutics and the rule of law: Gadamer and Dworkin. Ratio Juris 3(1):14–28
King Jr. ML (1963) Letter from Birmingham Jail. https://billofrightsinstitute.org/primary-sources/letter-from-birmingham-jail. Accessed 22 May 2023
Lee W-C (2015) The judgeship of all citizens: Dworkin’s protestantism about law. Law Philosophy 34:25–53
Waldron J (2006) The core of the case against judicial review. Yale Law J 115(6):1346–1406
Court Cases
Brown v. Board of Education of Topeka, 491 U.S. 397 (1989)
Casey v. Planned Parenthood of Southeastern Pennsylvania, 505 U. S. 833 (1992)
Dobbs v. Jackson Women’s Health Organization, 97 U. S. ____ (2022)
Griswold v. Connecticut, 381 U.S. 479 (1965)
Loving v. Virginia, 381 U.S. 479 (1967)
Roe v. Wade, 410 U.S. 113 (1973)
Texas v. Johnson, 491 U.S. 397 (1989)
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Lee, Wc. (2024). Dworkinian Protestantism, Civil Disobedience, and Democratic Citizenship. In: Babst, G.A., Souris, R.N., McGregor, J. (eds) Liberal Constitutionalism and its Contemporary Challenges. AMINTAPHIL: The Philosophical Foundations of Law and Justice, vol 12. Springer, Cham. https://doi.org/10.1007/978-3-031-53602-1_6
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