Module 6: Interpretation and Principles - Dworkin | Jurisprudence I
The module covers Principle of legality, Dworkin's Legal Positivism, Rules vs. Principles, Interpretive Jurisprudence, Integrity in Law, and Judicial Decision Making (Hercules and responses).
Embarrassing Questions
Legal Obligation and Coercion: Dworkin argues that when the state punishes someone (e.g., jail or fines), it justifies this action by saying the person violated the law, which they had an obligation to follow. This connects legal obligation to the state's use of coercive force.
📌 The Principle of Legality (PL): Dworkin suggests that, in normal circumstances, for the state to justify coercion (like punishment), it must show that the individual violated a known legal obligation. In other words, the state can only punish someone if they’ve broken a law that they had a chance to avoid breaking by following established legal rules.
Coercion and Just Laws: Dworkin acknowledges that just saying someone broke the law isn’t always enough to justify punishment. If laws are unjust, punishing someone for breaking them isn’t justified. But he insists that coercive power shouldn’t be used merely for policy reasons—people must have known laws they can follow to avoid punishment.
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Rule of Law vs. Arbitrary Power: Dworkin believes that any system that doesn’t follow PL (i.e., where laws are clear and coercion is based on them) would lead to arbitrary rule. Even if a ruler is benevolent, without following PL, their use of power becomes arbitrary and unjust.
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Critique of Positivism: Dworkin’s main critique of legal positivism is that it doesn’t align with the Principle of Legality. Positivism, which separates law from morality, fails to account for the idea of legal obligation and the ideal of a legal system based on known, just laws.
Dworkin's Depiction (Categorisation) of Legal Positivism
Dworkin characterizes legal positivism as being committed to three fundamental theses:
The Model of Rules: Dworkin posits that, according to positivism, the law of a community is essentially a collection of specific rules that dictate the use of force by the community against its members.
Crucially, these rules are identified by their origin (pedigree), meaning how they were created, rather than the moral quality of their content. This separation of law from morality is a core tenet of legal positivism, which Dworkin challenges.
The Discretion Thesis: Dworkin suggests that positivists believe the set of legal rules comprehensively covers all legal scenarios. In situations where no rule applies, judges must exercise discretion, meaning they rely on their own moral and political judgments to decide the case.
This implication of positivism is particularly problematic for Dworkin, as it raises concerns about the potential for arbitrary and unjust decisions when judges are not bound by legal rules.
The Obligation Thesis: According to Dworkin's interpretation, positivists view legal obligation as arising solely from rules. This means that if an individual's case is not covered by an existing rule, and a judge uses discretion to decide the case, the resulting decision cannot be considered as enforcing a legal obligation.
Consequently, the use of force in such a case would be deemed a violation of the principle of legality.
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Dworkin has to do more than point out that there is a conflict between PL and positivism.
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Rules vs Principles
Dworkin's distinction between rules and principles forms a central aspect of his critique of legal positivism and his theory of law.
He argues that while positivists focus primarily on rules as the defining feature of law, they fail to account for the crucial role that principles play in legal reasoning.
To highlight the distinction, Dworkin offers the example of Riggs v. Palmer, where the court disallowed a murderer from inheriting his victim's estate despite a valid will, demonstrating the influence of principles that extend beyond strict rules.
The Distinction
Rules: Dworkin contends that rules function in an all-or-nothing manner. If a valid rule applies to a specific case, it dictates a particular outcome. To deviate from this outcome, one must demonstrate the rule's invalidity, its inapplicability to the case, or the existence of previously overlooked exceptions.
For Dworkin, rules operate as clear directives that provide definitive answers to legal questions.
Principles: In contrast to the rigidity of rules, Dworkin views principles as offering reasons for a decision but not necessarily compelling a specific outcome. Even when a principle applies to a case, judges might decide against it based on countervailing considerations.
Principles, unlike rules, possess a dimension of weight, allowing judges to assess their relative importance and prioritize the weightier principle when multiple principles apply to a case.
This weighing process acknowledges the inherent complexity of legal decision-making, where multiple considerations might pull in different directions. Dworkin emphasizes that judges frequently resort to principles in their decisions, reflecting their significance in legal practice.
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In India, the Right to Privacy (a principle) ensures that individuals have control over their personal space and data, while a law like Section 66E of the Information Technology Act (a rule) specifically criminalizes the act of sharing private images without consent.
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Dworkin's distinction between rules and principles underscores his belief that law is more than just a system of rules.
He argues that principles play a crucial role in guiding judicial decision-making, particularly in "hard cases" where existing rules are ambiguous or silent.
Dworkin's Observations on the Role of Rules and Principles
Dworkin, in his critique of legal positivism, observes that judges utilize both rules and principles in their decision-making process. This observation challenges the positivist view that law is solely comprised of rules, identifiable by their origin (pedigree) rather than their moral content.
Dworkin highlights two key interpretations of this observation:
Observation 1: Principles as Part of the Law
This interpretation suggests that principles, alongside rules, constitute the law, and judges are obligated to apply them. This perspective implies a rejection of the positivist notion of strong discretion, where judges rely solely on their personal judgment in the absence of clear rules.
Dworkin argues that embracing principles as part of the law addresses the conflict with the "principle of legality," ensuring that even in complex cases where rules are unclear, judges are still applying legal standards, thereby upholding legal obligations.
Furthermore, this interpretation aligns with the way judges themselves approach legal decision-making. Their language and reasoning often reflect a belief that principles are integral to the law and carry binding force.
Observation 2: Principles as Extra-Legal Standards
The second interpretation, favored by positivists, contends that principles are not legally binding but rather extra-legal standards that judges might employ when faced with gaps or ambiguities in the law. This view maintains that principles are essentially expressions of a judge's personal moral or political convictions, leading to discretionary judgments in hard cases.
Dworkin argues against this interpretation, highlighting that principles are not merely arbitrary preferences but rather reflect a "sense of appropriateness" within the legal profession and the public. He contends that this shared understanding of principles cannot be adequately captured by a positivist rule of recognition, which solely focuses on pedigree.
Furthermore, Dworkin argues that the consistent application of principles, even in the absence of clear rules, reinforces the ideal of legal integrity, promoting coherence and consistency in the legal system.
The Problem of Discretion
Discretion refers to the freedom a judge has in making decisions. Dworkin identifies different senses of discretion:
Weak Discretion: The judge applies existing standards (rules or principles) but must exercise judgment (e.g., deciding which is the more aggressive boxer).
Strong Discretion: The judge has no obligation to follow any particular standard and can decide based on personal views (e.g., deciding based on personal preference).
Dworkin's Argument Against Strong Discretion for Judges
Dworkin argues that if principles were simply moral or political preferences (as in Option b), judges would have "strong discretion." This would mean they could make decisions based on personal views without being bound by any legal standard. Dworkin rejects this, suggesting judges have only weak discretion—they must follow legal principles, even if they require judgment.
Rebutting Legal Positivist Arguments
Binding Nature of Principles: Critics argue principles aren't binding. Dworkin counters that principles do bind judges, as they must be considered when making decisions.
Principles Can't Determine Results: While principles don’t always lead to a single outcome, Dworkin says the overall weight of principles guides judges to a legal conclusion.
Principles Are Controversial: While principles may be controversial, this doesn't mean judges have total discretion. Judges must still apply principles within the law.
Dworkin's Positive Argument for Principles as Part of the Law
Dworkin offers this reasoning:
Courts can invalidate or modify legal rules.
If courts could change rules freely, they would not be bound by them.
But courts are bound by existing rules.
Therefore, courts must have the power to modify rules only if principles guide these decisions.
Thus, principles must be part of the law.
Conclusion
Dworkin concludes that principles are indeed part of the law. Judges are bound by both rules and principles, which means their decisions in difficult cases are not purely discretionary—they are still enforcing legal obligations. This challenges the positivist view that judges only apply rules, suggesting instead that judges apply both rules and principles as part of their legal duties.
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One sentence on how principles are part of law:
Dworkin asserts that principles are inherently part of the law because judges consistently appeal to them when making decisions, especially in "hard cases" where established rules are insufficient.
Dworkin emphasizes that legal principles, unlike strict rules, provide reasons for deciding a case in a certain way without necessarily mandating a specific outcome. These principles often reflect a "sense of appropriateness" within the legal profession and the public, shaping judicial understanding and application of the law. The consistent use of principles by judges, even in the absence of explicit rules, indicates that they are considered as binding and integral to the legal system, ensuring coherence and integrity in legal decision-making.
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Dworkin has rejected the two theses of Positivism: The Discretion Thesis and The Obligation Thesis
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Summary on how Principles as part of law challenges theses of positivism
Dworkin's assertion that principles are integral to the law directly challenges the three fundamental theses of legal positivism.
Challenge to the Discretion Thesis: Positivism posits that in cases where no clear rule applies, judges must exercise discretion, meaning they rely on their personal judgment rather than legal standards. Dworkin contends that the use of principles in such "hard cases" refutes this thesis. He argues that principles, while not functioning as rigid rules, nevertheless provide legal guidance and constrain judicial discretion. Judges are obligated to consider relevant principles and reach a decision that aligns with the overall integrity and coherence of the legal system. They are not free to simply invent new law or decide based solely on their personal views. Dworkin introduces the concept of the "right answer," suggesting that even in complex cases, there is a legally correct outcome that can be reached through careful consideration and weighing of relevant principles. This challenges the positivist idea that judges are essentially legislators in hard cases.
Challenge to the Obligation Thesis: Positivists traditionally link legal obligations to rules, asserting that individuals are bound by legal duties only when their case falls under an existing rule. Dworkin's inclusion of principles in the legal landscape disrupts this connection. He argues that legal principles can also give rise to obligations, even in the absence of a specific rule. Since principles are part of the law, judges who apply them in their decisions are enforcing legal obligations, not merely expressing personal preferences. This broadened understanding of legal obligation suggests that the source of legal duties is not confined to rules, but also encompasses the underlying principles that shape the legal system.
Challenge to the thesis of Model of Rules (RoR)
Dworkin argues that the rule of recognition, a central tenet of Hart's legal positivism, cannot adequately explain the role of principles as integral components of the law.
The rule of recognition, as conceived by Hart, serves as a master rule that identifies valid legal rules based on their pedigree, their origin within the legal system, rather than their moral content.
Dworkin challenges this view by asserting that principles, which often reflect moral and political considerations, are not merely extra-legal standards but are indeed part of the law, shaping judicial decision-making and contributing to the overall coherence of the legal system.
Dworkin presents two main arguments to support his claim:
1. The Moral Basis of Principles
Firstly, Dworkin points out that the binding force of legal principles often stems from their perceived moral quality, not just their procedural pedigree.
While acknowledging that not every moral principle automatically becomes law, he argues that a principle's legal standing derives from a "sense of appropriateness developed in the profession and the public over time".
This sense of appropriateness cannot be adequately captured by a rule of recognition that solely focuses on a rule's origin within the legal system.
Judges, in their reasoning, frequently refer to past legal practice to establish a principle's legal standing. However, Dworkin argues that it is impossible to specify precisely how much support from past decisions is needed to make a principle legally binding.
This suggests that the legal recognition of principles goes beyond a mere procedural test and involves a consideration of their moral weight and acceptance within the legal community.
2. Principles and Customary Law
Secondly, Dworkin argues that even if Hart were to classify legal principles as part of customary law, incorporating them into the rule of recognition, it would fundamentally undermine the purpose of the rule itself.
The rule of recognition, according to Hart, provides a clear and unambiguous standard for identifying valid law, marking a transition from primitive societies to those with a more sophisticated legal system.
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Dworkin's argument against the rule of recognition rests on the idea that the acceptance of legal principles hinges on a complex interplay of factors, including their moral content, their coherence with existing legal practices, and their perceived appropriateness within the legal community. This nuanced process of recognition cannot be reduced to a simple procedural test as envisioned by the rule of recognition. Consequently, Dworkin concludes that the rule of recognition, and the positivist idea that legality depends solely on a norm's source, are inadequate for explaining the integral role of principles in the legal system.
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Concurrent and conventional morality - Further critique of RoR
Dworkin illustrates this point with the example of a "hat rule," where individuals might consistently take off their hats upon entering a church. He posits two possible motivations for this behavior:
Concurrent Morality: People might take off their hats because they share a common moral belief that doing so is a sign of respect for the deity. In this case, the practice is grounded in a shared moral understanding, and individuals would likely feel obligated to remove their hats even if others did not.
Conventional Morality: People might take off their hats simply because it is a social convention, a practice that everyone follows to avoid causing offense or standing out. In this case, the obligation stems from the desire to conform to social expectations rather than a deeply held moral belief.
Dworkin uses the distinction between concurrent and conventional morality to argue that even those moral duties arising from social conventions are not always reducible to a uniform social practice, challenging Hart's theory of social rules and its reliance on observable practices to explain legal obligations. He illustrates this by highlighting that even when there's a social practice, like removing hats in a church, there can be disagreements about its scope, such as whether it applies to babies wearing bonnets. This, according to Dworkin, exposes the limits of a solely practice-based account of legal obligation and emphasizes the importance of legal principles, which often incorporate moral considerations, in resolving such ambiguities and shaping judicial decisions.
Interpretive jurisprudence
Dworkin’s argument for an interpretive legal theory takes its start from the observation that legal officials often disagree about the law.
Context
Dworkin's theory of law focuses on interpretation.
It begins with the observation that judges often disagree about what the law requires, even in the same case.
The Case: Riggs v. Palmer (1889)
A man, Elmer Palmer, murdered his grandfather to secure an inheritance.
The legal question: Should Elmer inherit according to the will?
The statute (law governing wills in New York): Allowed changes or annulments only for specific reasons, which did not include "murdering the testator."
The disagreement:
Majority Opinion: Elmer should not inherit because allowing it violates a general principle of law: "No one should benefit from their own wrongdoing."
Dissenting Judge: The statute explicitly allows the will to stand, and following the law maintains stability and predictability (security of expectations).
Dworkin's Challenge to Positivism:
Legal Positivism: Positivists argue that laws derive from clear social facts (e.g., written statutes) and that disagreements about the law should be straightforward to resolve.
Problem: In hard cases like Riggs, judges disagree not just about the facts or morality, but about what the law itself requires.
Positivism struggles to explain such disagreements:
Positivists might claim judges are not actually disagreeing about the law (which seems implausible).
Or admit that positivism fails to account for how disagreements about the law are resolved.
Types of Disagreement in Law
There are three types of questions: (a) Questions of fact; (b) Questions of Law; and (c) Questions of morality/fidelity.
Accordingly there are different types of disagreement that may occur in legal practice:
Disagreement about facts âž” To be resolved by way of empirical inquiry (scrutinize relevant documents, interrogate witnesses, etc.)
Disagreement about fidelity âž” To be resolved by way moral deliberation
This means courts need to strike a balance between two things:
Following the law strictly (judicial fidelity to law) – because laws provide stability, fairness, and predictability in society.
Considering moral or ethical reasons to not enforce the law – because sometimes following a law might lead to unfair, harmful, or unjust results.
Disagreement about law âž” Method of resolution unclear
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Disagreements about law are unique because they often involve both:
First-order disagreements: What does the law say? (e.g., Can Elmer inherit?)
Higher-order disagreements: How do we determine what the law says? (e.g., Should we follow the literal words of the statute or interpret them in light of broader principles?) </aside>
Propositions and Grounds of Law
To further explain legal disagreements, Dworkin introduces two concepts: propositions of law and grounds of law.
Propositions of law are claims about what the law permits, requires, or forbids.
Grounds of law are what validate or justify these propositions.
Dworkin argues that identifying grounds of law is straightforward in some cases but can be very difficult in others, especially in "hard cases."
This difficulty in identifying the grounds of law, particularly in complex cases, forms the basis of his attack on positivism.
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Dworkin employs the notion of grounds of law to explain the difference between legal positivism and natural law theory. Legal positivism and natural law theory are portrayed by Dworkin as two different accounts of what the grounds of law are.
Legal positivists are theorists who argue that the ultimate grounds of law must always be social facts. Natural law theory, by contrast, can be explained as the view that the ultimate grounds of law include both social and moral facts
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Dworkin's Attack on Positivism
Dworkin argues that legal positivism, which claims law is solely validated by social facts, fails to adequately account for theoretical disagreements in law.
He differentiates between empirical disagreement (Judges agree on what the grounds of law are; but disagree on satisfaction of grounds), resolvable through factual inquiry, and theoretical disagreement, where judges disagree on the very grounds of law.
Crucially, Dworkin claims legal positivism cannot explain theoretical disagreement. If grounds of law are merely social facts, as positivists argue, disagreements should be easily resolvable through empirical investigation of those facts.
However, the existence of theoretical disagreement, like in Riggs v. Palmer where judges disagreed on the principles for interpreting the statute, challenges this positivist view.
Forcing positivists to explain this, Dworkin argues, leads to two implausible options:
Either judges don't genuinely disagree about the law, which is unconvincing given their arguments and justifications.
Or judges are deliberately misleading the public about the nature of legal decision-making, which is equally implausible.
Theoretical Disagreement and Interpretivism
Having rejected positivism's account of legal disagreement, Dworkin proposes his own alternative rooted in interpretivism. He argues that theoretical disagreements are fundamentally disagreements about how to best interpret the law, understood as a social practice.
Constructive Interpretation
In his seminal work, Law's Empire, Ronald Dworkin puts forward the concept of constructive interpretation as the foundation of his interpretive theory of law. Constructive interpretation, as Dworkin explains it, provides a framework for understanding and resolving disagreements about law, particularly in complex or "hard" cases. This framework is deeply rooted in Dworkin's criticism of legal positivism and serves as the bedrock of his theory of law as integrity.
Understanding Constructive Interpretation
Social Practices and Interpretation: Dworkin's approach begins with the observation that law, like other social practices like courtesy, is inherently interpretive.
To understand a social practice, one must engage in a process of attributing meaning and purpose to its rules and actions. This process involves moving beyond a mere description of existing practices and towards a deeper understanding of their underlying values and justifications.
Three Stages of Interpretation
Dworkin outlines three stages of constructive interpretation:
Pre-Interpretive Stage: This stage involves identifying the existing rules and practices of a social practice. For instance, in law, this would involve recognizing established precedents, statutes, and legal principles.
Interpretive Stage: This stage requires attributing a point or purpose to the practice and understanding the existing rules in light of that purpose. In law, this might involve identifying values like fairness, justice, or the protection of individual rights as the core purpose of the legal system.
Post-Interpretive Stage: This stage involves modifying or refining the existing practices to better align with the identified purpose and to improve the practice. In legal terms, this could involve overturning outdated precedents or interpreting statutes in a way that promotes the underlying values of the legal system.
Fit and Justification
Constructive Interpretation
Goal: To interpret a social practice (like law) in a way that explains and improves it.
Criteria for Success: A successful interpretation must meet two key standards:
Fit: The interpretation must align with the existing practice.
Justification: The interpretation must show the practice in its best moral light.
1. Dimension of Fit
What it Means: The interpretation must correspond to the actual practice it seeks to explain. It can’t stray too far from what already exists.
Example: If you’re interpreting the practice of courtesy, you can’t claim that courtesy is about doing yoga daily. This has nothing to do with how people currently understand or practice courtesy.
Flexibility: While minor adjustments to the practice are okay, the interpretation must still preserve most of the original rules and principles.
2. Dimension of Justification
What it Means: Beyond aligning with the practice, the interpretation must justify why the practice is worth following. It should explain the purpose or moral value behind it.
Example: A good interpretation of courtesy might justify it as a way to foster mutual respect and harmony. This makes the practice meaningful and morally appealing.
3. Relationship Between Fit and Justification
Threshold Rule:
Fit comes first: An interpretation must fit the practice well enough to count as an explanation of that practice.
If an interpretation doesn’t fit, it’s irrelevant (e.g., yoga and courtesy example).
Justification for Selection:
Among interpretations that fit, we choose the one that provides the best justification, meaning it portrays the practice in the most morally attractive way.
Application to Law
In legal contexts, a judge using Dworkin’s framework would:
Ensure their interpretation aligns with the broader legal tradition (fit).
Choose the interpretation that best serves justice or reflects society’s moral values (justification).
This ensures both consistency with the law's structure and alignment with its deeper moral purpose.
Concept and Conceptions
Dworkin further distinguishes between the concept and conceptions of a social practice. The concept captures the abstract purpose or point of the practice, while conceptions are more specific accounts of how that purpose is realized.
For instance, the concept of law might be to justify the use of coercive force, while different conceptions of law, like conventionalism or law as integrity, offer different ways to achieve that justification.
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Why this distinction matters:
The concept is shared by everyone (e.g., "Courtesy is about respect").
The conceptions differ (e.g., "Respect requires X behavior" vs. "Respect requires Y behavior"). </aside>
Internal & External Scepticism - Critique of subjectivity
Why Discuss Scepticism?
Constructive interpretation involves evaluating social practices (like law or courtesy) to justify them.
A common critique: Isn’t moral judgment just subjective? For instance, preferring one interpretation could be like preferring chocolate over vanilla ice cream—purely personal.
If moral judgments are entirely subjective, then constructive interpretation loses its purpose, as there would be no reason to prefer one interpretation over another.
Two Types of Skepticism
1. External Skepticism
What it says: External skepticism argues that moral judgments are inherently subjective because there are no objective "moral facts" in the universe to validate them.
Example: If I say "slavery is wrong," an external skeptic might argue that this is just my personal opinion, with no universal truth behind it.
Dworkin’s response: External skepticism is irrelevant to constructive interpretation.
Why? Even if moral facts don't exist "out there," people still make practical judgments and offer reasons for their views.
Example: An external skeptic may claim moral values are subjective but still argue against slavery, offering moral reasons for their stance.
Key point: External skepticism doesn’t stop us from engaging in moral reasoning or constructive interpretation—it’s more of a metaphysical side issue.
2. Internal Skepticism
What it says: Internal skepticism happens when, after trying to interpret and justify a social practice, we conclude that it cannot be morally justified.
Example: Suppose we try to interpret courtesy in a way that fits existing practices and makes them morally acceptable. However, we find that courtesy reinforces unjust social hierarchies and cannot be redeemed. In that case, we might argue the practice should be abandoned altogether.
Dworkin’s view:
Internal skepticism doesn’t deny the validity of moral reasoning or constructive interpretation. Instead, it concludes that a specific practice cannot meet objective moral standards.
Key difference: Internal skepticism evaluates and rejects a practice as morally flawed, while still accepting the meaningfulness of moral reasoning.
Constructive Interpretation in Law
1. Law as a Social Practice
Like courtesy, law is a social practice, which means it’s open to interpretation.
Disagreements about the law often arise because people interpret its purpose and rules differently.
Dworkin’s view: His theory of constructive interpretation explains how such disagreements are possible and meaningful.
2. Theoretical Disagreement in Riggs v. Palmer
In Riggs v. Palmer, the judges disagreed on what the law required:
Majority opinion: Law isn’t just about past decisions or written statutes; it also involves moral principles (e.g., it’s wrong to let someone benefit from a crime).
Dissenting opinion: Law is strictly based on past decisions and statutes; judges shouldn’t go beyond the written rules.
This disagreement reflects two conceptions of law:
Law as integrity (majority): Law includes moral principles implied by past decisions.
Conventionalism (dissent): Law is strictly what past decisions explicitly say.
3. Concept vs. Conceptions of Law
Dworkin distinguishes between:
The concept of law: The abstract purpose of law, which is to justify the use of coercive force by society in a way consistent with rights and responsibilities from past decisions.
Conceptions of law: Different interpretations of how this purpose is achieved. Dworkin identifies three conceptions of law:
Conventionalism: Law is only based on explicit past decisions. Focuses on predictability and fairness.
Pragmatism: Judges should decide cases based on future benefits, ignoring past decisions. (This is a skeptical approach.)
Law as integrity: Law includes not only explicit rules but also the moral principles underlying them.
4. Resolving Theoretical Disagreement
The disagreement in Riggs v. Palmer about whether Elmer should inherit is a first-order disagreement.
This depends on a second-order disagreement: What are the grounds of law (conventionalism vs. law as integrity)?
Dworkin’s method: Use constructive interpretation to resolve these disagreements by:
Ensuring the interpretation fits past legal practices.
Showing the interpretation in its best moral light (justification).
5. Why is This Meaningful?
Theoretical disagreements about law are not subjective like preferences for ice cream flavors. They are interpretive and can be argued using:
Evidence of how well the interpretation fits legal practice.
How well it justifies the law’s purpose.
This makes legal disagreements meaningful and open to reasoned resolution.
6. Final Takeaway
Law and legal theory are interpretive practices, not just about following fixed rules or relying purely on morality.
Constructive interpretation seeks to balance past decisions (fit) with moral justification, making legal disagreements understandable and resolvable.
Interpretivism and the Connection to Natural Law:
The sources highlight that the interpretive nature of law, as understood by Dworkin, leads to a necessary connection with morality1. This is because the process of constructive interpretation inherently involves making evaluative judgments about which interpretation best fits and justifies the law morally.
Dworkin argues this connection operates on two levels:
Methodology: The very process of choosing between different conceptions of law, such as conventionalism, pragmatism, and law as integrity, is an interpretive question that requires judges to make moral judgments8. They must consider which conception offers the most coherent and morally justifiable account of legal practice.
Substance: While Dworkin argues for law as integrity as the best constructive interpretation of legal practice, he acknowledges that constructive interpretation could theoretically lead to a positivist standard of legal validity9. However, even this kind of positivism would differ from traditional positivism in acknowledging that the choice of a positivist account is made for normative reasons, not simply based on descriptive claims about legal practice.
The Dilemma of Unjust Laws - Legal validity vs. Moral justification
Dworkin’s discussion on the limits of the interpretive concept of law addresses the tension between legal validity and moral justification, especially in cases of unjust laws within an otherwise just legal system.
His theory starts with the assumption that law exists to justify the use of collective power against individuals or groups.
However, he legal validity and moral justification: (1) what the law requires and (2) whether it ought to be enforced or obeyed.
This distinction is crucial when facing laws that are procedurally valid but morally abhorrent.
The Dilemma of Unjust Laws
Suppose a law enacted by a recognized authority in a generally just legal system is shockingly unjust (e.g., a discriminatory law). This creates a dilemma for Dworkin’s interpretive theory:
Option 1: Claim the unjust law must be obeyed, which suggests that legality overrides morality, leading to moral complacency.
Option 2: Claim the unjust law is not "law," despite its procedural validity, which undermines the legal system’s stability and procedural legitimacy.
Both responses are unsatisfactory: the first sacrifices morality to legal formalism, while the second risks denying the reality of laws that are procedurally valid but morally flawed.
Dworkin’s Solution: Grounds vs. Force of Law
To resolve this, Dworkin introduces a distinction between the grounds and the force of law:
Grounds of law: The criteria that make a rule valid as law (e.g., legislative enactment, judicial precedent).
Force of law: The moral obligation to obey or enforce the law.
This distinction allows Dworkin to say:
A law can be valid (grounded in legal rules) but lack the moral force to justify enforcement or obedience.
The moral reasons for disobeying a law can outweigh its legal validity, especially in cases of extreme injustice.
The Problem of Wicked Law (e.g., Nazi Law)
Dworkin acknowledges the challenge of legal systems like Nazi Germany, where laws were procedurally valid but deeply immoral. He argues that:
Pre-interpretive concept of law: Recognizes Nazi law as "law" because it fits formal criteria like being enacted by legitimate authorities, enforced by courts, and obeyed by citizens.
Interpretive concept of law: Denies Nazi law the status of "law" because it cannot be morally justified—it authorizes actions that violate fundamental principles of human dignity.
Flexibility of Legal Language
Dworkin’s distinction between pre-interpretive and interpretive concepts allows for nuanced judgments:
Nazi law is "law" in a procedural, descriptive sense (pre-interpretive concept).
Nazi law is not law in a moral, justificatory sense (interpretive concept) because it fails to meet the moral standards that make law a legitimate basis for coercion.
Criticism: Is This Too Close to Positivism?
Some critics argue that Dworkin’s approach closely resembles positivism. Positivists acknowledge wicked laws as "law" but argue they may not deserve obedience. Dworkin’s distinction between pre-interpretive and interpretive law seems similar:
Both agree wicked laws exist but lack moral legitimacy.
The difference lies in emphasis: Dworkin ties the essence of law to morality, while positivists separate law and morality.
Conclusion
Dworkin’s interpretive theory seeks to balance the reality of unjust laws with the need for moral justification in law. By distinguishing between the grounds (validity) and force (moral obligation) of law, he allows for the recognition of procedurally valid yet morally deficient laws while maintaining that true law, in its interpretive sense, must align with principles of justice and morality. This nuanced approach avoids the extremes of blind obedience to unjust laws and denial of their legal status while highlighting the central role of moral evaluation in legal interpretation.
Integrity in Law
Integrity in Law is a central concept in Ronald Dworkin's legal theory, as explained in the sources, particularly in his book Law's Empire. It functions as a guiding principle in both the creation and application of law, aiming to ensure coherence, principled reasoning, and moral justification within the legal system.
Dual Aspects of Integrity
The sources highlight that integrity operates on two distinct levels:
Legislative Integrity: This aspect focuses on the responsibility of lawmakers to create laws that exhibit integrity. It calls for legislation to be coherent, consistent, and grounded in a justifiable set of moral and political values. The aim is to avoid laws that are arbitrary, contradictory, or that unfairly favour certain groups over others.
Integrity in Adjudication (Law as Integrity): As a legal ideal, integrity guides judges in their decision-making, particularly in "hard cases" where existing legal rules lack clear answers. Judges are expected to interpret the law in a way that is faithful to past decisions while simultaneously striving for coherence and moral justification.
Understanding the Grounds of Law in Law as Integrity
According to the sources, law as integrity views the foundation of law as comprising two elements:
Past Political Decisions: This includes statutes, judicial precedents, and pronouncements from recognized legal authorities. These decisions represent concrete instances of lawmaking.
Principles of Political Morality: These are the underlying moral and political values that provide a framework for understanding and justifying the explicit legal decisions. They lend coherence to the legal system and ensure that decisions are not arbitrary or based on mere whims.
The Significance of Constructive Interpretation
The sources emphasize the crucial role of constructive interpretation in law as integrity. This interpretive process requires judges to engage in a thoughtful analysis of existing legal materials, aiming to:
Identify the Relevant Legal Materials: This includes past decisions, legal doctrines, and other relevant sources.
Attribute a Purpose to Legal Practice: Judges must discern the underlying moral values and political ideals that the legal system aims to uphold. This involves identifying the purpose and values that inform the law.
Develop a Coherent and Morally Defensible Interpretation: Judges should strive to interpret the law in a way that aligns with existing legal materials while also presenting them in their "best possible light". This means ensuring the interpretation is both consistent with precedent and morally justifiable.
Judges as Both Interpreters and Authors
The sources utilize the analogy of a chain novel to illustrate the role of judges in law as integrity. Like authors contributing to a chain novel, judges:
Must respect the existing narrative: Their interpretations need to "fit" with the preceding chapters, meaning the past decisions and legal principles that have shaped the law.
Have creative freedom within constraints: They also have the responsibility to develop the "story" in a coherent and morally justifiable direction. This involves identifying and applying the underlying principles that justify past decisions to new and complex situations.
The Misleading Objection: Departing from the "Real" Novel
The Objection: Critics might accuse a judge (or author) of rewriting the "real" law or novel instead of faithfully continuing it.
Example: An author inherits what seems to be a murder mystery manuscript but redirects it into a social satire, claiming this makes the story more interesting.
Dworkin’s Response: There is no "real" novel or law that can be objectively discovered outside of interpretation. The process of interpreting and continuing the story (or law) is the reality of the practice.
Key Clarifications:
Fit: A judge’s decision (like a new chapter) must align sufficiently with the existing framework to count as a continuation, not a radical rewrite.
Best Continuation: The quality of the decision depends on how well it justifies and enhances the existing framework, balancing fidelity to the past with vision for the future.
Disagreements in Interpretation
Competent interpreters (judges or authors) may disagree about which continuation is best, but this doesn’t mean all interpretations are equally good.
Judging Quality: Some continuations are superior, just as some novels are better than others. For instance, while authors and readers may debate the best way to continue a novel, most would agree that certain works (e.g., The Master and Margarita) are objectively better than others (The Hunt for Red October).
Application to Judicial Decision-Making
Judges, like authors, are tasked with interpreting and continuing the "story" of the law:
They must respect precedent (fit) but also strive to make decisions that contribute to the law’s moral and practical coherence (justification).
Their role involves striking a balance between preserving the integrity of the legal system and evolving it in ways that reflect contemporary values and principles.
Judicial Decision Making - Hercules
Judicial Decision in Law as Integrity
In Dworkin's "Law as Integrity," judicial decisions are not merely mechanical applications of pre-existing rules. Instead, they are complex interpretive acts that require judges to engage in constructive interpretation. This means that judges must consider not only the explicit rules and precedents but also the underlying principles and values that best justify and explain the existing legal system. The goal is to reach decisions that both fit with past decisions and present the law in its best moral light.
Hercules: The Ideal Judge
To illustrate how a judge committed to "Law as Integrity" would approach hard cases, Dworkin introduces the figure of Hercules, a hypothetical judge with superhuman intellect and patience. Hercules embodies the ideal of a judge who can fully grasp the complexities of the legal system and apply the principles of "Law as Integrity" without the constraints of time or resources.
It's important to understand that Hercules is not meant to be a realistic depiction of a judge; rather, he serves as a theoretical tool to explore the intricacies of legal reasoning within Dworkin's framework. By analyzing how Hercules would decide a case, we can gain insights into the "hidden structure" of judicial reasoning and understand how "Law as Integrity" can guide judges towards correct legal outcomes.
The Process of Interpretation: Hercules's Strategies
The sources outline several strategies that Hercules would employ when deciding a case:
Check for fit: Hercules begins by discarding interpretations that fail to align with past decisions, as these would portray those decisions as mistaken.
An interpretation of Mc Loughlin that argued that ‘no one has a moral right to compensation except for physical injury’ (LE 240) would have to be rejected because prior judicial decisions awarded compensation for emotional injury at the scene of accident.
Seek a principled ground of distinction: If an interpretation fits past cases but lacks a principled justification for distinguishing between different scenarios, it is rejected. Arbitrary distinctions are not acceptable in "Law as Integrity."
Expand the range of relevant cases: When faced with multiple interpretations that fit the initial set of cases but conflict with each other, Hercules expands the range of cases under consideration. This allows him to develop a more comprehensive and unified understanding of the underlying principles.
Resolve conflicts of principle: Even after expanding the range of cases, Hercules might encounter conflicting principles. In such situations, he would delve deeper into considerations of overall fairness and justice to determine which interpretation is superior.
The Importance of Holism
The process of interpretation in "Law as Integrity" can be incredibly demanding, potentially requiring a judge to consider the entire legal system when deciding a single case. This highlights the holistic nature of Dworkin's theory.
While judges typically start with a "local priority," focusing on the most relevant cases, the range of interpretation can expand to encompass the entire legal landscape if necessary. This is because, according to Dworkin, the ideal of integrity underpins all judicial decisions, regardless of their complexity.
Conclusion
In Dworkin's "Law as Integrity," judicial decision-making is a sophisticated interpretive process that requires judges to act as both faithful interpreters and creative authors of the law. Hercules, the idealized judge, exemplifies this approach by demonstrating how a commitment to integrity can guide judges towards coherent, principled, and morally justifiable decisions.
Responding to Objections to Law as Integrity
Focuses on addressing criticisms levelled against Dworkin's concept of "Law as Integrity," particularly concerning the role of Hercules as the idealised judge. These objections highlight potential issues with the theory's practicality, objectivity, and legitimacy in the face of differing judicial opinions.
1. "Hercules is Playing Politics"
This objection stems from the concern that Hercules, in deciding cases based on his understanding of "fit" and "justification," might be injecting his personal views on fairness and justice into the law. Critics argue that this undermines the neutrality and objectivity of the judicial process. They propose that judges should adhere to the intentions of lawmakers when interpreting the law, relying on historical facts rather than moral judgment.
Dworkin's Response:
Dworkin argues that the objector's position itself relies on a moral judgment about the proper method of interpretation. Choosing to prioritize lawmakers' intentions over other considerations is a value judgment, not a neutral stance.
He highlights that any approach to legal interpretation, even those claiming to be purely objective, inevitably involves moral considerations. Selecting a particular interpretive methodology already reflects a moral standpoint.
2. "Hercules is a Fraud"
This objection targets the notion of a single "right answer" in legal interpretation, which is central to "Law as Integrity." Critics argue that there are always multiple interpretations that can fit within the constraints of existing law, and the choice between them ultimately rests on the judge's subjective moral preferences. They claim that Hercules is merely disguising his personal opinions as objective legal truths.
Dworkin's Response:
He distinguishes between two versions of this objection:
Version 1: Morality is subjective. This version suggests that the absence of objective moral standards renders the idea of a single right answer meaningless. Dworkin counters this by invoking the distinction between internal and external skepticism. He posits that while internal skepticism, questioning the existence of a right answer within a specific case, is a valid aspect of legal reasoning, external skepticism, which denies the possibility of objective morality altogether, is irrelevant to the interpretive process.
Version 2: Morality is objective, but Hercules misrepresents his judgments. This version accepts the objectivity of morality but accuses Hercules of presenting his moral conclusions as legal facts. Dworkin argues that this objection presupposes the existence of a purely factual method for identifying law, which is precisely what "Law as Integrity" rejects. He contends that legal interpretation inherently involves moral judgments.
3. "Hercules is Arrogant"
This criticism acknowledges the possibility of correct answers in legal interpretation but questions the legitimacy of a single judge, even Hercules, having the final say. Critics point out that competent judges, even those subscribing to "Law as Integrity," can disagree on the correct outcome of a case. They question how one judge's interpretation can prevail over dissenting views.
Dworkin's Response:
He offers two counterarguments:
The ideal of a community of principle: Dworkin suggests that even in the presence of disagreements, the commitment of judges to the principles of "Law as Integrity" strengthens the legitimacy of the legal system. When judges strive for integrity, they contribute to a shared understanding of law as a principled enterprise, even if they reach different conclusions.
The broader issue of judicial power: Dworkin points out that concerns about a single judge's authority apply to all forms of judging, not just "Law as Integrity." Granting any judge, whether pragmatist, conventionalist, or otherwise, the power to decide cases raises similar concerns about the potential for imposing personal views.
Conclusion
Dworkin maintains that "Law as Integrity" provides a robust framework for understanding judicial decision-making, emphasizing the interconnectedness of law, morality, and interpretation in the pursuit of a coherent and justifiable legal system.