Principles that Incorporate Policies Versus Principles that Stand on Their Own

Ronald Dworkin contended that the process of judicial interpretation in the United States and the United Kingdom is and should be regulated by egalitarian principles that are partially constitutive of the law. In contrast, I develop the rudiments of a theory of judicial activity that maintains the autonomy of principles, while recognizing that their very meaning is dependent on the consequences of their implementation. To make my argument manageable within the context of this paper, I contrast Dworkin’s notion of equality, which is essentially procedural, with an image of equity that merges formal and substantive claims, recognizes that the implementation of egalitarian norms may accentuate inequality, and mandates actions to enhance substantively egalitarian outcomes.

Details