With the incisiveness and lucid style for which he is renowned, Ronald Dworkin has written a masterful explanation of how the Anglo-American legal system works and on what principles it is grounded. Law's Empire is a full-length presentation of his theory of law that will be studied and debated—by scholars and theorists, by lawyers and judges, by students and political activists—for years to come.
Dworkin begins with the question that is at the heart of the whole legal system: in difficult cases how do (and how should) judges decide what the law is? He shows that judges must decide hard cases by interpreting rather than simply applying past legal decisions, and he produces a general theory of what interpretation is—in literature as well as in law—and of when one interpretation is better than others. Every legal interpretation reflects an underlying theory about the general character of law: Dworkin assesses three such theories. One, which has been very influential, takes the law of a community to be only what the established conventions of that community say it is. Another, currently in vogue, assumes that legal practice is best understood as an instrument of society to achieve its goals. Dworkin argues forcefully and persuasively against both these views: he insists that the most fundamental point of law is not to report consensus or provide efficient means to social goals, but to answer the requirement that a political community act in a coherent and principled manner toward all its members. He discusses, in the light of that view, cases at common law, cases arising under statutes, and great constitutional cases in the Supreme Court, and he systematically demonstrates that his concept of political and legal integrity is the key to Anglo-American legal theory and practice.
Rejecting the view, widely held among legal theorists, that judges create law rather than merely interpret it, Ronald Dworkin insists that for every hard case there is one right answer: the one that fulfills the obligation of the community to treat its members in a coherent and principled manner.
Examining cases from common law, statute law, and American constitutional law, Dworkin formulates guidelines for finding that elusive right answer. The right interpretation, he concludes, should try to incorporate the virtues of justice, or moral justifiability; fairness, or respect for the expressed will of the majority; and integrity, or adherence to principled consistency rather than capriciousness.
The author’s notion of integrity requires that judges steer between the two extremes of a slavish adherence to the letter of existing law, on the one hand, and an arbitrary disregard for all legal precedent, on the other. Judges’ decisions, therefore, must be constrained by precedent even as they adapt the law to new situations. Dworkin ascribes to other legal theorists a cavalier indifference to precedent; in doing so, he comes perilously close to setting up a straw man.
With regard to questions of constitutional law, Dworkin tries to chart a middle course between a too-meddlesome judicial activism and the passivism favored by American conservatives. Judges, the author asserts, intervene rightly when they preserve a principle by overruling laws that violate individual rights; they intervene wrongly when they interfere in matters of policy. Unfortunately, Dworkin’s sharp theoretical distinction between policy and principle can easily become blurred in real life.
Although LAW’S EMPIRE is difficult for the average reader to plow through, it is no more difficult than it has to be. Specialized legal terms, and ordinary words used in a special way, are carefully defined. The author makes deft use of homely examples and illuminating analogies to clarify his more complex arguments. The explanatory footnotes provide a mine of bibliographical information; the index is also useful.
Dworkin’s abstract, tightly reasoned work will appeal chiefly to scholars in the fields of legal and political philosophy rather than to the general reader. The author has provided a nourishing broth for all those who are hungry for intellectually challenging argumentation.
LAW’S EMPIRE
by Ronald Dworkin
Harvard University Press
Paper: 978-0-674-51836-0
Paper: 978-0-674-51836-0
TABLE OF CONTENTS
- CONTENTS
- ONE
- WHAT IS LAW?
- Why It Matters
- Disagreement about Law
- The Plain-Fact View
- A Threshold Objection
- The Real World
- Semantic Theories of Law
- The Real Argument for Semantic Theories
- TWO
- INTERPRETIVE CONCEPTS
- The Semantic Sting
- An Imaginary Example
- A First Look at Interpretation
- Interpretation and Author's Intention
- Art and the Nature of Intention
- Intentions and Practices
- Stages of Interpretation
- Philosophers of Courtesy
- A Digression: Justice
- Skepticism about Interpretation
- THREE
- JURISPRUDENCE REVISITED
- A New Picture
- Concepts and Conceptions of Law
- Skeptical Conceptions and Wicked Law
- Grounds and Force of Law
- FOUR
- CONVENTIONALISM
- Its Structure
- Its Appeal
- Legal Conventions
- Two Kinds of Conventionalism
- Does Conventionalism Fit Our Practice?
- Does Conventionalism Justify Our Practice?
- FIVE
- PRAGMATISM AND PERSONIFICATION
- A Skeptical Conception
- Does Pragmatism Fit?
- Law without Rights
- The Claims of Integrity
- Community Personified
- SIX
- INTEGRITY
- Agenda
- Does Integrity Fit?
- Is Integrity Attractive?
- The Puzzle of Legitimacy
- Obligations of Community
- Fraternity and Political Community
- Untidy Endnotes
- SEVEN
- INTEGRITY IN LAW
- A Large View
- The Chain of Law
- Law: The Question of Emotional Damages
- A Provisional Summary
- Some Familiar Objections
- Skepticism in Law
- EIGHT
- THE COMMON LAW
- The Economic Interpretation
- Complexities
- The Question of Justice
- The Utilitarian Duty
- The Egalitarian Interpretation
- Equality and Comparative Cost
- Private People and Public Bodies
- NINE
- STATUTES
- Legislative Intention
- Speaker's Meaning
- Convictions
- Hercules' Method
- Legislative History
- Statutes over Time
- When Is the Language Clear?
- TEN
- THE CONSTITUTION
- Is Constitutional Law Built on a Mistake?
- Liberals and Conservatives
- Historicism
- Passivism
- Hercules on Olympus
- Theories of Racial Equality
- Deciding Brown
- Deciding Bakke
- Is Hercules a Tyrant?
- ELEVEN
- LAW BEYOND LAW
- Law Works Itself Pure
- Law's Dreams
- Epilogue: What Is Law?
- Notes
- Index
Additional secondary materials
According to law as integrity, proposition of law are true if they figure in or follow from the principles of justice, fairness and procedural due process, which provide the best constructive interpretation of the community’s legal practice.
Law as integrity states that the law must speak with one voice, so judges must assume that the law is structured on coherent principles about justice, fairness and procedural due process, and that in all fresh cases which comes before them, judges must enforce these so as to make each person’s situation fair and just by the same standard – that is to say, treat everyone equally.
Dworkin argues that, law as integrity offers a blueprint for adjudicator which directs judges to decide cases by using the same methodology from which integrity was derived viz, constructive interpretation.
Integrity is both a legislative and an adjudicative principle. Legislative principle requires law makers to try to make the laws morally coherent. Lawmakers are required to ask the assumption that integrity is a distinct ideals of politics, for politics, and honors politics. If it fits these dimensions, then adjudicative principles is ready to begin.
Central to Dworkin’s project that to develop a theory of adjudication it is necessary to engage in a constructive interpretation of legal practice. Adjudicative principles instruct that the law be seen as coherent in that way, as far as possible. Constructive interpretation is a methodology for interpreting social practices, texts and work of art. The distinctive feature of this is that it is argumentative.
chain novel view of law
The process of constructive interpretation is made up of three analytical stages: (1) Pre-interpretive stage, (2) Interpretive stage, (3) Post-interpretive stage. In the Pre-interpretive stage, a participant identifies the rules and standards that constitute the practice. Then, in the interpretive stage, the interpreter settles on some general justification for those elements identified at the pre-interpretive stage. At the post-interpretive stage, participant adjusts his sense of what the practice really requires so as to better serve the justification he accepts at the interpretive stage.
Of the three stages, the interpretive stage is the pre-eminent. The proposal must satisfy two dimensions: (1) it must be consistent with the data identified as constituting the practice at the pre-interpretive stage; (2) he must choose a justification that he believes shows it in the best light.
For Dworkin, the historical legal record must constitute the source of legal interpretation: this interpretation must fit into the existing both of legal materials. It should not be thought that a judge committed ton law as integrity is required to interpret laws in the light of the purposes which gave rise to them. On the contrary, he is required to impose order over doctrine, not to discover order in the forces that created it.
Dworkin is compelled to conclude that what constrain interpretation is not historical legal materials in some objective sense, but the judges convictions about “fit”. This is in line with what is accepted as "settled " law. The other side of the argument is towards substantive issues of political morality. (substance )According to Dworkin, the constrain upon judges arises from their personal need as individuals to integrate their convictions about “fit” with their convictions about whether their interpretation shows the interpreted practice in its best light.
To understand “fit” Dworkin employs the idea of the ‘Chain Novel’. Imagine that a number of novelist agree to write one chapter each of a proposed novel. Clearly, there will be constraints of ‘fit’ upon the author of the second chapter, constraints which will increase through each successive chapter.
Because law as integrity sees the law as a coherent whole, law as integrity requires the judges to go through the whole law to consider an interpretation. The interpreted law as integrity holds that judges would both fit and justifies what has gone on before as far as possible.
Just as the interpretation within a chain novel, in law it is a delicate balance of political convictions of different sorts. In law, as in literature, these must be sufficiently related, and yet disjointed to allow an overall judgment that trades off an interpretation’s success on one standard against failure on another.
If, for example, it is decided in the case of McLoughlin v O’Brian (1983) that Mrs. McLoughlin deserves compensation for her injury, then the question that we need to analyze is whether legal practice is seen in a better light if the community accepts the principle that people in Mrs. McLoughlin’s position deserves compensation.
To the positivist, in the McLoughlin case, the judges must exercise discretion and make law, which is then applied retrospectively to the parties in the case.
It is noted that, if the judge is guided by law as integrity, he is directed to regard as law what morality would suggest to be the best justification for past decisions. If this is so, a judge deciding McLoughlin employs his own moral convictions. If the judge is satisfied that the law as he understands it favors Mrs. McLoughlin, he will feel justified in thus deciding whatever the present legislature thinks, whether or not popular morality concurs.
Law as integrity provides a consistency in principle which requires that various standards governing the states use of coercion against the citizen be consistent in order to have a single vision of justice.
If a judge deciding the McLoughlin case is tempted to decide against Mrs. McLoughlin, he would first ask himself whether any principled distinction can be drawn between her case and other mothers who suffer emotional damage at the scene of an accident.
Positivism is different from law as integrity because it rejects consistency in principle as a source of legal rights. Positivism does not require judges to justify their decisions to the entirety of the law. Positivism does not consider the law as having an integral life of its own. Positivism will present the law as comprising of a set of discrete decisions, which judges have the discretion to make or amend law.
On the contrary, law as integrity sees the law as a coherent phenomenon, rather than a set of discrete decisions. Law as integrity requires judges to justify their decisions to the entirety of the law, which is considered to have an integral life of its own.
Consistency in principle supposes that people have legal rights which follows from legislation and precedents which enforce coercion. Mindful of this, law as integrity supposes that people are entitled to a coherent and principled extension of past decisions even when judges disagree about what that means.
Positivism denies this, since it denies consistency in principle as a judicial virtue for dissecting ambiguous statute and in exact precedents to try to achieve this. The methodology of Dworkin’s model judge, Hercules, emphasizes this point.
Law as integrity requires judges to treat the techniques that they use in interpreting statutes and measuring precedents not simply as tools handed down by the legal system, but as principles they assume can be justified in political theory, and when that is in doubt they construct a theory of the system to better them.
To Dworkin, no mortal judge can or should try to articulate his instinctive working theory or make theory so concrete and detailed, that no further thoughts will be necessary case by case. He must threat any general principles or rules as thumb he has followed in the past as provisional and stand ready to abandon these in favor of more sophisticated and searching analysis when the occasion demands.
It is nevertheless possible for any judge to confront fresh and challenging issues as a matter of principle, and this is what law as integrity demands of him.
Law as integrity is at best a conception for hard cases. Law as integrity explains and justifies easy cases as well as hard cases and it also shows why they are easy. So easy cases are, for law of integrity, only special cases of hard cases, and, to Dworkin, we need not ask question when we already know the answer.
The process of adjudication inherent in the theory of law as integrity yields right answer to question of law. For Dworkin, in most hard cases there are right answers to be hunted by reason and imagination.
As a consequence of this conception of law, lawyers are invited to search for an answer in legal materials using reasons and imagination to determine the best way to interpret legal data. It is therefore possible for lawyers to confront fresh and challenging issues as a matter of principle, and this is what law as integrity demands of him.
Hart held that the law is a set of rules based on customs and institutions and that legal deliberation need not take account of considerations of morality or fairness – the province of the legislature.
In books such as Taking Rights Seriously (1977) Dworkin condemned Hart’s philosophy as “normatively inert”. The law, Dworkin maintained, comprises not only rules but principles; after all, where rules do not exist judges look to the legal and moral principles enshrined in the general body of law to make their rulings.
In his most widely-quoted book, Law’s Empire (1986), Dworkin developed the theory of “Law as integrity”, arguing that judges have a duty to decide cases in such a manner that the law becomes more coherent and appears as the product of a single moral vision. In Anglo-American society, he maintained, that vision is based on the idea (enshrined in America in the Constitution) that the law exists to “benefit society not just by providing predictability and procedural 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”.
Thus, while legislatures often pass laws which contravene the principle of integrity, in interpreting those laws judges have a duty to apply the principle. He argued the case for “creative” interpretation in which judges strive not to discover the purpose of the lawmakers, but to impose purpose on the text. “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,” he wrote.
In Britain, Dworkin was a firm supporter of the Human Rights Act 1998, much criticised on the Right, which he regarded as having served to educate the judiciary and give them the principles to stand up to an over-mighty state by (for example) prohibiting the use of evidence obtained by torture and rejecting the government’s attempts to detain suspects indefinitely without trial.
The concept of legal positivism in essence is ingrained in two basic ideas: one, that morality and law have no inherent or necessary connection, and the second that laws are rules created by human beings. Legal Positivism has its own criticism and in the article titled “Integrity in Law,” from his book Law’s Empire, Ronald Dworkin presents a theory of law of Integrity, which aims to challenge Legal Positivism and present a better understanding of adjudication in respect to law. Law’s Empire was written as a direct criticism of legal positivism as H.L.A. Hart had presented it. Dworkin’s work and motivation in the article is a criticism of positivism at every level, and in the article he criticizes positivism through some of his basic ideas that formulate essentially into his Right Answer thesis. Dworkin’s is especially motivated to present a better explanation of adjudication than what legal positivism offers, which includes the role of principles in judicial decision making.
The novel is jurisprudence, and the judge, being the novelist, must be assured that the decision he comes up with for a case fits well with a story explaining all the precedents having been set before in similar cases; so that the unified interpretive sense of law can continue. The chain novel view of law seeks to present the historical legal record as constituting the source for legal interpretation. Dworkin states that this does not mean that the judge deciding a case must figure out what the original writers intended to mean, rather they must figure out which interpretation of the case fits well with all of those historically preceding it. The chain novel idea is a crucial part of the Right Answer thesis, as it sets the basis for the process of how to arrive at the right answer of which interpretation must be chosen.
In the process of writing the novel, the novelist is presented with the option to pick which interpretation to follow. Dworkin states that the novelist is constrained when choosing an interpretation, not by the choices present but by the novelists own convictions about “fit.” When applied to judges, the constrain on choosing an interpretation comes from the judges personal necessity to amalgamate their convictions about “fit” with their convictions regarding their interpretation fitting best with the interpretive practice of law. In law, then, “there is a delicate balance among political convictions of different sorts”, which must be related but also set aside such that different interpretations can succeed on certain standards and fail on others (F&C 141).
Another critical aspect in the theory of integrity as law is the role morality plays when the judge must pick the right interpretation. This is a consequence of justice and fairness, the two being part of political morality, playing an important role in Dworkin’s theory, and just as the judges have political convictions in choosing the right interpretation they also have moral convictions (F&C 145). In defining integrity, Dworkin states, “According to law as integrity, propositions, of law are true if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community’s legal practice” (F&C 137). Through all of this Dworkin is suggesting that the concept of law comes from what can be seen as a constructive interpretation of the history of the legal system, and that the constructive interpretation heavily involves integrity as defined above. The law is seen as a seamless, self-existent unity of all legal material.
The question that arises here is that sure this process of interpretation according to integrity works for cases that have legal history of prior cases where the precedent has been set, but how does law as integrity work for new or fresh cases? It would seem that the system is flawed. Dworkin’s reply to this is in the definition of integrity itself, provided in the previous paragraph. Dworkin wants to suggest that when there is no precedent and so no clear interpretations to be taken, the interpretation of the case can be based on the principles of law as integrity, such as justice and fairness. Of course, here again, the right answer the judge arrives at will be dependent upon his or her political and moral convictions, but judges will still be constrained in how they interpret what the right story should be due to their necessity to integrate their political and moral convictions with their convictions on what is the best interpretation according to the principles set by law as integrity.
In order to demonstrate that how the integrity as law system could work, Dworkin presents to the reader the metaphor of an imaginary person named Hercules, who is an ideal judge, immensely wise and patient, and is omnipotent of legal knowledge. The author suggests that regardless of the case Hercules is given, Hercules will, due to the all the attributes attributed to him above, Hercules will always come down to one right answer for the case. This is Dworkin’s Right Answer thesis, such that no matter how hard the case is, there is always one right answer to be sought after through thought and imagination. If law as integrity is applied properly to a case, then the right answer of which interpretation to apply will be arrived at. Finally, it can be seen that Dworkin is suggesting that judges should implement the model of Hercules’s use the chain novel model that applies integrity as law in order to come up with the right answer.
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