Law as Integrity
From IVR encyclopedie
The phrase “Law as integrity” has become famous through the writings of Ronald Dworkin (1931-...). It functions as a kind of catch-all phrase for his interpretative theory of law, most notably developed in his seminal book Law’s Empire (LE). In it Dworkin argues that judges are obligated to decide cases in such a manner that the law becomes more coherent and appears as the product of a single moral vision. “Law as integrity” is a legislative as well as adjudicative principle, but Dworkin applies it most prominently in the domain of adjudication. To spell out in more detail what this interpretative theory amounts to, let us start with some quotations from Law’s Empire (LE):
a) “Law as inte grity accepts law and legal rights whole heartedly (...) It supposes that law’s constraints bene fit society not just by provi ding pre dictabi lity and procedu ral fairness, or in some instrumental way, but by securing a kind of equality among citizens that make their community more genuine and improves its moral justification for exercising the political power it does. Integrity’s (...) account of the character of consisten cy with past poli ti cal decisions that law requires is cor respondingly different from the answer given by conven tionalism. It argues that rights and responsibilities flow from past decisions and so count as legal, not just when they are expli cit in these decisions but also when they follow from the principles of personal and political morality the explicit decisions presup pose by way of justifi cation.” (LE p.95-96).
b) “Judges who accept the interpretative ideal of integrity decide hard cases by trying to find, in some coherent set of principles about people’s rights and duties, the best constructive interpretation of the political structure and legal doctrine of their community. They try to make that complex structure the best it can be.” (LE 255).
c) “The spirit of in te grity, which we locate in fra terni ty, would be outraged if [a judge] were to make a decisi on in any way other than by choos ing the inter pretation that he believes best from the stand point of politi cal morali ty as a whole. We accept inte grity as a political ideal becau se we want to treat our poli tical community as one of princi ple, and the citizens of a community of principle aim not simply at common princi ples, as if uniformity were all they wanted, but the best common prin ciples politics can find.” (LE p.236).
Models of interpretation
It might be useful to start by setting Dworkin’s theory of interpretation against the main two rival theories as he understands them. In Law's Empire Dworkin distinguishes three conceptions of law - conventionalism, pragmatism, and “law as integrity” - and concludes that the third conception is the most plausible and defensible.
Conventionalism holds that rights can only emerge from already existing law (precedents or legislation) and that judges must respect what convention deems binding law (for example: “decisions of higher courts are binding on lower courts”). Judges should follow and not make law (LE p.116). Therefore, conventionalism looks backward. As a result, paradoxically, whenever a judge is confronted with a situation where no law exists according to convention (hard cases), he or she must exercise discretion and inevitably take on a law creating role. In contrast to conventionalism, a pragmatist theory of law focuses on the future. Pragmatism denies that assignments of legal rights and responsibilities must be consistent with past decisions. It holds that the law is not really constraining adjudication. Therefore, pragmatism insists that judges should decide what decision will, according to them, be best for the community as a whole. This means that for reasons of strategy judges must sometimes act “as if” they are applying pre-existing legal rights (LE p.95). Nevertheless, under a pragmatist theory of law past decisions (precedent or legislation) as such do not constrain how courts should behave. Consistency is not valued for its own sake. Pragmatism might be associated with the law and economics movement or the theory of legal realism.
Dworkin is highly critical of both theories of law. Conventionalism, according to him, assumes that judges sometimes invent law, which means that they act in an unconstrained manner. Pragmatism also assumes that judges are hardly constrained when adjudicating cases. It thus cannot account for why judges are so concerned with precedents and statutes when they decide hard cases (LE p.159). Dworkin strongly disapproves with judging in an unconstrained manner and presents a third theory of law, which he believes not only better represents what actually happens when judges decide cases but is also a morally better theory of law.
As can be noted from this criticism, Dworkin is concerned ultimately with the eternal problem of the relationship between law and force, and the main question to him is how force may be legitimately used. “[T]he most abstract and fundamental point of legal practice is to guide and constrain the power of government in the following way. Law insists that force not be used or withheld (...) except as licensed or required by individual rights and responsibilities flowing from past political decisions about when collective force is justified.” (LE p.93). As we will see, Dworkin believes that a society that accepts integrity as a political virtue is a morally just society and thus uses force in a legitimate way.
“Law as integrity”
In Law’s Empire Dworkin writes that “[t]his book takes up the inter nal, parti cipants’ point of view; it tries to grasp the argu menta tive character of our legal prac tice by joining that practice and struggling with the issues of soundness and truth partici pants face” (LE p. 13-14). The only way to understand legal practice, so it seems, is to take issue with the interpretative point of view of the participant to that practice. Dworkin so defends the idea that when judges (and, more generally, lawyers) discuss the best way to solve a legal issue, the question does not simply revolve around identifying exactly what positive law is applicable in a particular case, such as the conventionalists would argue, but that a solution is always sought by taking an interpretative approach to law as social practice. Law is through and through a matter of argumentative or interpretative practice, Dworkin argues. The debate between lawyers about a case, then, turns on differences of opinion as to what exactly the law amounts to in a particular matter and not so much on what conventions apply when identifying the applicable law. Participants in such a debate thus do not attempt to link the facts of a case with the supposedly posited law applicable but rather interpret the law in light of a general normative justification or moral point expressed in it. “A parti ci pant inter pre ting a soci al practi ce [i.e. the law], accor ding to that view, propo ses value for the practice by descri bing some scheme of inte rest or goals or principles the prac tice can be taken to serve or express or exemplify.” (LE p.52).
How does a judge go about adjudicating? A judge must always call on the “network of politi cal structures and decisi ons of his community” (LE p.245). Legislation and case law are prime examples of this network, which in a pre-interpretative stage must be identified. Then follows the interpretative stage in which the judge must always ask himself whether his interpretation of this network “could form part of a coherent theory justifying the network as a whole. No actual judge could compose of anything approa ching a full interpreta tion of all of his community’s law at once. But an actual judge can (...) allow the scope of his interpretati on to fan out from the cases immediately in point to cases in the same general area or department of law, and then still far ther, so far as this seems promising.” (LE p.245). Thus, the interpretation of law must not only fit into the legal system but also be the best normative justification of law as such. Not only must his interpretation be consistent with the law identified at the pre-interpretative stage; the law should also be interpreted in the best way the participant believes possible. Finally, in the post-interpretative stage, the participant (judge) should adjust his or her sense “of what the practice really requires so as better to serve the justification he accepts at the interpretative stage.” (LE p.66).
It is important to note that, by saying this, Dworkin does not express the opinion that a particular case should be resolved on the basis of sole considerations of justice. On the contrary, morality is exercising influence over the way rules are to be understood indeed, but together with the positivists Dworkin argues that the moral standards should be derived from the explicit and existing legal practice. Contrary to positivists, however, he argues that moral principles that cohere with past legal practice are valid propositions of law as well—so much so that these principles can and should go beyond what legal conventions teach us the law is.
Dworkin’s philosophy of law evidences a retrospective element, which he calls “fit,” as well as a prospective element, which he calls “justification.” In exercising their functions, judges are therefore called to construct a theory of law that both fits past legal decisions (legislation or case law) and makes the law the best it can be. They should find the previously mentioned legal principles in the historical and social characteristics of the system – this tradition has to “cover” the positive law – and then improve the law for the future by making it more coherent. Thus, when exercising their task, judges should strive to interpret the law in the way that best promotes the coherence of the legal system as such; the most coherent interpretation is better than an interpretation that makes the system as such less coherent. This means that a certain tension will always exist in Dworkin’s theory when it comes to interpretation: namely, between what is presented by the existing “positivist” material and what is the best way to interpret such material from a moral point of view. At times it will show that certain components of positive law amount to misconceptions that require improvement.
From all this it follows that a judge should therefore view his or her role as that of a link in a chain, such as with other authors in writing a novel; in that case a new author is bound by what another author has written in a previous chapter, but the new author will subsequently attempt to continue the novel in the best possible way. “He knows that other judges have decided cases that, although not exact ly like his case, deal with related pro blems; he must think of their decisions as part of a long story he must interpret and then continue, according to his own judgement of how to make the developing story as good as it can be.” (LE p.239).
Law in this approach is an “unfolding narrative.” Its development is, according to Dworkin, not arbitrary but rather the expression of an underlying attempt at forming and clarifying a coherent legal consciousness of society. Striving toward such integrity, such a moral dimension of law guides the interpretation of the legal narrative and so forms a guideline for assumptions as to how to best continue the narrative. Therefore, an interpreter of a legal text, according to Dworkin, does not enjoy complete freedom regarding the meaning of the text: He or she is not allowed to inject his or her own personal morality into the document. Quite the opposite: The purpose of the interpreter must be to establish coherence based on the integrity of existing law. Decision making by the judge “will depend, that is, not only on his beliefs about which of these princi ples is superi or as a matter of abstract justice but also about which should be followed, as a matter of poli tical fairness, in a community whose members have the moral convic tions his fellow citizens have” (LE p.249). Dworkin also explains this in more general terms: “There are two possibilities. Someone might say that interpretation of a social practice means discovering the purposes or intenti ons of the other social participants in the practice (...). Or that it means discovering the purposes of the community that houses the practice, conceived as itself having some form of mental life or group consciousness. The first of these suggestions seems more attractive because less mysterious. But it is ruled out by the internal structure of an argumentative social practice, because it is a feature of such practices that an interpretive claim is not just a claim about what other inter preters think. (...) [A] social practice creates and assumes a crucial distinction between interpreting the acts and thoughts of participants one by one, in that way, and interpreting that practice itself, that is, interpreting what they do collectively. It assumes that distinction because the claims and arguments participants make, licensed and encouraged by the practice, are about what it means, not what they mean. (...) [An interpre ter must therefore] join the practice he proposes to understand (...).” (LE p.62-64).
A consequence of Dworkin’s views is obviously that the legal system itself may not contain too many mistakes, as the normative dimension feeds on the law itself. As a matter of fact, Dworkin’s theory is constructed on the presupposition that the integrity of the legal community is in a large measure reflected in its law. So if the justification of law is to flow from society’s political decisions (in the form of law), it follows that these decisions must also be justifiable as such; but this is obviously not always the case, as the examples of Apartheid South Africa and Nazi Germany show. Why would we make racism “the best it can be?” Dworkin’s argument here is circular in that it presupposes, in his case, the existence of a liberal democracy (cfr. H.L.A.Hart).
Also, it is not very clear in what respect an analogy can be drawn between law and literature (cfr. the chain novel), in that legal texts constrain judges in their interpretative activities. Some argue that legal texts themselves are texts as well and thus also must be interpreted. In other words, what is to be interpreted cannot be distinguished from the interpretation itself. “There is no such thing as a text out there” (cfr. S.Fish), and meaning is derived from interpretation. From that point of view, a previous legal text as such does not put any constraints on its interpretation but rather on the shared understandings that live within the interpreting community.
A third criticism might be that it is not clear what interpretation of the law can still be considered an interpretation. To put it differently, what are the borders of the interpretative activity of a judge? What normative theory best justifies the existing law? Dworkin is not very clear on this, and the constraints that the dimension of “fit” (see above) seem to establish are therefore potentially endless (with thanks to Arend Soeteman of the Free University of Amsterdam, who made me more aware of this problem).
M.Cohen (ed.), Ronald Dworkin & Contemporary Jurisprudence, London, Duckworth, 1984.
R.Dworkin, Taking Rights Seriously, Cambridge (Massachusetts), Harvard University Press, 1977.
R.Dworkin, Law’s Empire, London, Fontana Press, 1986.
H.L.A.Hart, “Between utility and rights”, in M.Cohen (ed.), Ronald Dworkin & Contemporary Jurisprudence, London, Duckworth, 1984.
S.Fish, Doing what comes naturally, Oxford, Oxford University Press, 1989.
S.Guest, Ronald Dworkin (2nd edition), Edinburgh University Press, 1997.