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In Laws Empire Dworkin introduces the idea of law as integrity. Explain and evaluate the role of integrity in his thinking, using examples to illustrate your analysis as appropriate. Introduction In Laws Empire Dworkin advances his working theory of law as integrity. Essentially he personifies the law where he argues that judges decisions are an exercise in constructive interpretation, which purports to interpret the law as an integral whole, in the best moral light. In this essay it will be argued that integrity plays a cohesive role in Dworkins theory, where it draws together various strands of his thinking to provide greater coherency to the conception of law he advances. We will consider how Dworkins theory has developed from an extensive criticism of the positivist account. Stemming from this criticism Dworkin sought to build a model of law that would provide an account that more truly reflects the complexity and sophistication of our own practices.1 In this essay we shall evaluate to what extent integrity has helped achieve this. Ideally we would consider integrity in the context of Dworkins theory as a whole, but due to limited space we will only explore the areas essential to the task of understanding the role of integrity.

The Beginning of Interpretivism

Ronald Dworkin, Is Law A System Of Rules? in Ronald Dworkin (ed), The Philosophy of Law (first published 1977, Oxford University Press 1982) 65

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Dworkin began his attack against legal positivism in his article the Model of Rules I.2 Since then he has adjusted his argument, but, it is relevant to understand how this attack has influenced his thinking. Dworkin ascribes to legal positivists three thesis; the Pedigree Thesis, the Discretion Thesis and the Obligation Thesis. 3It will suffice to be aware that these theses are intended to reflect Harts rule of recognition, the belief that law consists only of legal rules and the theory that legal obligations are wholly dependent on legal rules. Stemming from this Dworkin argues that legal positivism incorrectly depicts both law and legal argument as it is based on a model of rules. Consequently it therefore cannot account for legal principles. Dworkin holds that positivists such as Hart and Austin try and account for what he calls hard cases in terms of exercise of judicial discretion.4 He rejects legal positivism as an inadequate theory of law. Throughout his thinking Dworkin attempts to address these criticisms and provide a working theory of law that reflects actual practices. He employs integrity as a corrective measure in response to actual practices rather than as a utopian ideal effective only in the theoretical realm. Dworkins conflict with positivism goes deeper than structural issues, the inseparability of morality and law is central in his thinking.5 Dworkin claims that law is a social phenomenon6 and in Laws Empire takes up the internal, participants point of view in order to try to grasp the argumentative character of our legal practice.7 He argues our jurisprudence has yet to account for true legal practice as the plain fact view of law is
2 3

Ronald Dworkin, The Model of Rules, 35 U. Chi. L. Rev. 14 (1967) Scott Shapiro, The Hart-DworkinDebate: A short Guide For The Perplexed (2007) Working Paper No.77 Public Law And Legal Theory Working Paper Series <http://www.law.yale.edu/documents/pdf/Faculty/Shapiro_Hart_Dworkin_Debate.pdf> accessed 16 April 2013 4 Dworkin Is Law A System Of Rules? (n 1) 48 5 A detailed explanation of the Hart-Dworkin debate is out of the scope of this essay. 6 Ronald Dworkin, Laws Empire (first published 1986, Hart Publishing Ltd 2010) 13 7 ibid 14

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dominating. He ascribes to this version of legal positivism the belief that law depends only on matters of plain historical fact, that the only sensible disagreement about law is empirical disagreement.8 Dworkin rejects this and claims this theory suffers from the semantic sting9 where it cannot account for disagreements over grounds of law in cases such as McLoughlin. Dworkin argues these disagreements are theoretical.10 In Laws Empire Dworkin advances the interpretive approach as an alternative attitude in order to understand law in practice. This approach is a crucial concept where integrity plays a key role when applying this concept to our practices. Law as an Interpretive Concept. Dworkin presents law as an interpretative concept11 where he claims that law is defined by attitude.12This attitude introduces a constructive element which Guest suggests is so abstract in that its objective is making the best of something.13 In order to illustrate his claim that legal reasoning is an exercise in constructive interpretation he draws an analogy between a novelist helping construct a chain novel and a judge deciding a hard case.14 Each novelists task is to produce the best version of a single unified novel. Similarly a judge 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

8 9

Ibid 31 ibid 45 10 ibid 37 11 ibid ch 2, 44 12 Ibid 413 13 Stephen Guest, Ronald Dworkin (Edinburgh University Press 1992) 27 14 Claims this concept differs both from what he labels conventionalism (backwards-looking) and pragmatism (forwards-looking).

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as it can be15. The decision must be drawn from an interpretation that both fits and justifies what has gone before.16 The Herculean judge is introduced to further illustrate how this exercise works in legal practice. Hercules here has accepted law as integrity17 in order to impose purpose on the law and make it as good as it can be. We will later explore further how this interpretative attitude is applied to our legal practice as law as integrity. Dworkins Concept of Law Before we begin to explore law as integrity it is necessary to examine the concept of law that Dworkin advances. We can then evaluate how he applies integrity to his concept. Dworkin suggests that the purpose of law is to establish a justifying connection between past political decisions and present coercion18 of the public by the state. Dworkin then offers his conception of law as integrity which he argues offers the best explanation for our legal practices. Unfortunately Dworkin doesnt offer a coherent definition of integrity. To understand the role of integrity and why he introduces it we need to appreciate that according to his theory our legal practices only make sense against a moral background. This background is politically charged and based on equality.19 According to Dworkins theory Hercules will need to make the best moral sense of the legal arguments presented in order to make the law the best it can be. Guest sums up Dworkins

15 16

Dworkin, Laws Empire (n 6) 239 ibid 239 17 ibid 239 18 ibid 98 19 Guest, Ronald Dworkin (n 13) 38

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position aptly; moral argument is an essential ingredient of legal argument20. The two are inextricably linked and so Dworkin advances integrity as the necessary connection. The idea that the demands of morality are coherent21 is purposed in Laws Empire. Integrity is closely linked to the doctrine of equal concern in Dworkins thinking,22 and the idea that integrity demands coherency acts to personify the law in the sense that it must be taken as an integral whole. Dworkin here has deliberately drawn parallels with personal morality23in order to advance the suggestion that if we are to act morally we are to act with integrity.24 The Virtue of Political Integrity Integrity, in Dworkins thinking, is the necessary nexus between the legal and the moral: integrity is the principal virtue of legal argument and it is a moral virtue in the political sphere.25 Dworkin argues that political ideals of utopian scope are inherent within our politics. He principally draws upon the virtues of fairness, justice and procedural due process26 but further adds the virtue of political integrity. 27 He claims that integrity is elevated to this role when the state acts as a moral agent and the demands of acting according to a single, coherent set of principles are placed upon it by its citizens. This demand holds even when there may be disagreement about what morality is and what the principles of justice and fairness really are.28 In a utopian society the virtue of integrity would not be necessary as the political ideals would not conflict. 29 But this is not realistic in practice and so Dworkin argues that acting according to the virtue of integrity is less
20 21

ibid 33 Scott Hershovitz, Integrity and Stare Decisis in Scott Hershovitz (ed), Exploring Laws Empire: The Jurisprudence of Ronald Dworkin (first published 2006, Oxford University Press Inc 2008) 114 22 Taking Rights Seriously ? 23 Dworkin, Laws Empire (n 6) 166 24 ibid 114 25 Guest, Ronald Dworkin (n 13) 41 26 Dworkin, Laws Empire (n 6)164 27 ibid 166 28 ibid 166 29 ibid 176

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demanding and thus more achievable. Therefore integrity plays an enlightening role which adds to his working theory of law. According to Dworkins theory of morality if individual is acting according to integrity this will mean acting morally.30 Dworkin develops the idea of the court having the ability at act as a moral agent. By accepting law as integrity and employing an interpretative attitude, it can develop the law, making the best moral sense of it. Dworkin presents the virtue of political integrity as a dual concept in relation to legal decision making. The legislative aspect requires the legislature to make the total set of laws morally coherent,31 and the adjudicative aspect requires judges to treat the law as an integral, morally coherent, body. He employs the idea of a checkerboard solution to justify his claim that, in ordinary politics, we should accept integrity as the leading ideal. He purposes distributive justice, in the form of arbitrary distinctions, when political disagreements arise.32 I shall use his example of British disagreement on the morality of abortion to illustrate his idea. It is purposed that Parliament enacts a law where a pregnant womens entitlement to abortion is based on an arbitrary distinction of whether she was born in an even or in an odd year.33 He poses the puzzle of why we accept arbitrary distinctions for some matters such as parking, yet, in an area of principle we would not. Dworkin argues that in areas of moral sensitivity, such as abortion, we would only accept coherent principles with no internal discrimination. He looks to the virtue of fairness and poses the argument that checkerboard statutes are fairer as they represent a compromise with each body of view exerting influence. He then moves to the ideal of justice and claims that this ideal can too lend support for the checkerboard solution. Surely if an individual believes abortion to be unjust having a checkerboard solution

30 31

ibid 166 ibid 176 32 ibid 178 - 86 33 ibid 178

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would prevent more injustice than a statute legalising abortion completely? 34 Dworkin claims that we cannot explain our hostility to internal compromise by appeal to principles of either fairness or justice.35 He instead advocates that the most natural explanation of our hostilities is the political ideal of integrity. He argues that the checkerboard example shows that some other virtue must be inherent in our system. Like Neptune,36 integrity can be recognised from the force that it exerts within its relevant sphere.37 Integrity demands a coherency that a checkerboard solution cannot give; the state will effectively be acting in an unprincipled way.38 Dworkin concedes that integrity is continuously being flouted by our legal systems as we are unable to extract a single coherent scheme of principle. Nonetheless integrity is accepted as a political ideal because of its value; its intrinsic ability to demand coherency. Smith has been critical of both Dworkins claim that integrity should be taken as the leading ideal and his discussion of checkerboard statutes. He argues that this discussion lends limited support for his claim that integrity offers a good fit with our political beliefs and practices.39 He suggests that this example may demonstrate that integrity is a distinct political virtue but does not rule out the possibility that often [checkerboard solutions] may be the best we can hope for.40Therefore Dworkin provides no basis for his claim that integrity should characteristically be taken as the leading political ideal. Smith suggests that this failure will impact adversely upon Dworkins conception of law as integrity and his account of political obligations.
34 35

ibid 179 ibid 183 36 Astronomers recognised another planet existed, before discovering, due to the behaviour of the planets around it. 37 Dworkin, Laws Empire (n 6) 183 38 ibid 183 39 Dale Smith, The Many Faces of Political Integrity in Scott Hershovitz (ed), Exploring Laws Empire: The Jurisprudence of Ronald Dworkin (first published 2006, Oxford University Press Inc 2008) 119 40 ibid 152

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In Dworkins response to this criticism he highlights that the arguments presented in Laws Empire are drawn largely from his other work. It is important to take into consideration Dworkins account of the political community which he claims is not legitimate unless it shows equal concern for all its members. 41 The idea that people, in a community, are bound by mutual obligations towards each other underlines Dworkins doctrine of mutual respect and concern. Integrity, by demanding coherence is therefore central to establishing that equal concern that a legitimate community requires. If we take Dworkins thinking as a whole into account, paying special regard to the importance he places upon equality, we can conclude that he presents legitimate arguments for integrity to take a leading role in his conception of law. Judicial Reasoning Previously we introduced the ideal judge, Hercules, who accepts the general conception of law as integrity. It is important to consider that law as integrity consists in an approach, in questions rather than answers.42 Legal reasoning is central to Dworkins thinking where he uses integrity to give an account of how a judge should proceed in hard cases. Dworkin here is attempting to counter the legal positivists account where it is suggested that in hard cases judicial discretion is relied upon where the law runs out.43 Earlier we considered the chain novel example and the two stage test, that law as integrity demands, of fit and justification. Dworkin argues that this style of adjudication respects integritys ambition to be a community of principle.44 Dworkin propose the first stage would provide a rough threshold requirement that an interpretation must pass in order to be

41

Ronald Dworkin, Response in Scott Hershovitz (ed), Exploring Laws Empire: The Jurisprudence of Ronald Dworkin (first published 2006, Oxford University Press Inc 2008) 297 42 Dworkin, Laws Empire (n 6) 239 43 Taking Rights Seriously 44 Dworkin, Laws Empire (n 6) 243

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eligible initially. This stage involves looking backwards at legal history. The second stage then requires the judge to choose between interpretations that passed the threshold of fit and decide which one makes the law the best it can be from the standpoint of political morality.45 Law as integrity accounts for the role morality plays in legal judgements. Dworkin claims that 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 communitys legal practice.46 This has been interpreted by critics to mean that there is one right answer to legal issues. Guest comments that this is not a thesis of Dworkins own making, but which has been ascribed to him.47 I believe that Waldron more clearly understands Dworkins thinking where he comments that Dworkins position is underwritten by the notion of an objectively true outcome.48 Objectively true in the sense that integrity plays a key role in the reasoning process and by adherence to the spirit of integrity.49 Rather than meaning that the same uniform answer would result every time. If legal reasoning is approached in same objective way, using two-stage test, the resulting answer will be correct in that it should develop the law in the best way possible. It is vital, if we are to understand Dworkins thinking, to remember that he considers legal reasoning to be an interpretive concept. A judge who accepts law as integrity will be committed to enhancing the law as an integral whole, in the best moral light, through constructive interpretation. Conclusion

45 46

ibid 256 ibid 225 47 Guest, Ronald Dworkin (n 13) 137 48 Jeremy Waldron, The Rule of Law as a Theatre of Debate in Justine Burley (ed), Dworkin And His Critics(first published 2004, Blackwell Publishing Ltd 2005) 327 49 Dworkin, Laws Empire (n 6) 263

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Dworkin believes that the cutting edge of a jurisprudential argument is its moral edge.50 Integrity has provided this moral edge to Dworkins theory. Integrity requires that the law is seen as an integral whole. Interpretive skills must be employed throughout the legal reasoning process in order to provide a coherent answer. Coherency provides a platform for equal treatment of individuals; it is this equal concern that underpins Dworkins theory of morality. I therefore conclude integrity provides the fabric of his conception of law, where it brings together the different strands of his thinking into a coherent whole. Integrity has helped Dworkin to develop an account of law that provides a truer reflection of legal practice today and legitimately addresses his earlier criticisms of legal positivism.

50

Ronald Dworkin, Justice In Robes (The Belknap Press of Harvard University Press 2006) 178

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Bibliography Books Burley J (ed), Dworkin And His Critics(first published 2004, Blackwell Publishing Ltd 2005) Dworkin R (ed), The Philosophy of Law (first published 1977, Oxford University Press 1982) Dworkin R, Justice In Robes (The Belknap Press of Harvard University Press 2006) Dworkin R, Laws Empire (first published 1986, Hart Publishing Ltd 2010) Guest S, Ronald Dworkin (Edinburgh University Press 1992) Hershovitz S (ed), Exploring Laws Empire: The Jurisprudence of Ronald Dworkin (first published 2006, Oxford University Press Inc 2008) Simmonds N, Central Issues In Jurisprudence (first published 1986, Sweet & Maxwell 2008)

Contributions to Edited Books Dworkin R, Response in Scott Hershovitz (ed), Exploring Laws Empire: The Jurisprudence of Ronald Dworkin (first published 2006, Oxford University Press Inc 2008) Hershovitz S, Integrity and Stare Decisis in Scott Hershovitz (ed), Exploring Laws Empire: The Jurisprudence of Ronald Dworkin (first published 2006, Oxford University Press Inc 2008) Smith D, The Many Faces of Political Integrity in Scott Hershovitz (ed), Exploring Laws Empire: The Jurisprudence of Ronald Dworkin (first published 2006, Oxford University Press Inc 2008)

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Waldron J, The Rule of Law as a Theatre of Debate in Justine Burley (ed), Dworkin And His Critics(first published 2004, Blackwell Publishing Ltd 2005)

Journal Articles Mahoney J, Objectivity, Interpretation, and Rights: A critique of Dworkin, (2004) 23(2) Legal Philosophy 187 Malik B, Moral Truth and Sense: Questioning Dworkins One Right Answer, (2008) 14 UCL Jurisprudence Review 142 Wietlicki G, Dworkins Rights Thesis: Accommodating A Distinction between Policies and Principles, (2007) 13 UCL Jurisprudence Review 183

Online Journals Scott Shapiro, The Hart-DworkinDebate: A short Guide For The Perplexed (2007) Working Paper No.77 Public Law And Legal Theory Working Paper Series <http://www.law.yale.edu/documents/pdf/Faculty/Shapiro_Hart_Dworkin_Debate.pdf> accessed 16 April 2013