Ronald Dworkin: Law as Integrity

Law as Integrity
Ronald Dworkin
Law's Empire, 1986

Key to Ronald Dworkin’s Constructive Interpretation of legal practice is the conception of Law as Integrity. Law as integrity holds a vision for judges which states that as far as possible judges should identify legal rights and duties on the assumption that they were all created by the community as an entity, and that they express the community’s conception of justice and fairness.

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.

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”. 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.

Ronald Dworkin's Right Thesis

Right Thesis

Ronald Dworkin

Introduction

The judiciary plays an important role in all legal system. But the question is: How does a judge decides a case? If a case is brought to the court, the judge cannot refuse to adjudicate it on the basis that there is no precedent or the lawyer cannot cite any authority on the point of law.

In this connection, Dworkin observed that there is a right answer to each case. Dworkin’s Right Thesis involves the general claim that within legal practice and a proper understanding of the nature of law, rights are more fundamental than rules. This is the opposite claim to most legal positivists.

Rights are trumps in Dworkin’s Theory, which means that if there is any right which comes into conflict with any policy, the right must prevail.

Law as Seamless Web

The law is to be treated as a seamless web in which there always is a right answer. Judicial decisions are characteristically generated by principles and enforces existing political rights, so that litigants are entitled to the judge’s best judgment about what their rights are. To Dworkin, different judge may come to different conclusions but he insists that judges may not rely on their own political views but only on their beliefs in the soundness of those convictions.

It has long been received opinion that judges “filled in the gaps” left by rules by using their discretion. HLA Hart has written, “That the rule-making authority must exercise discretion…” Hart saw rules as ‘open-textured’. Austin saw no problem in this. It is the thesis of Dworkin that judicial discretion in what Dworkin calls its “Strong Sense” does not exist. Dworkin rejects the view regarding judicial discretion. The judges often are heard to say: “We find the law to be this”, and they say they discover the law. They do not profess the law to be their own discretion.

For Dworkin, judges are always constrained by the law. In every adjudication of the so-called “hard-cases’ there are controlling standards which a judge is obligated to follow.

Dworkin objects to judges acting as ‘deputy legislators’ for 2 reasons:

(i) Separation of Power: It offends the democratic ideal that a community should be governed by elected officials answerable to the electorate. The judge not being elected must not substitute his own will as against the legislature. (In Lord Simmons words, “it’s a naked usurpation of legislative functions).

(ii) Retrospectivity & The Rule of Law: Dworkin’s 2^nd objection to judicial originality is that “if a judge makes a new law and applies it retrospectively in the case before him, then the losing party will be punished, not because he has violated some duty he had, but rather a new duty created after the event.”

If judges are to make law, as what Hart said, that would be in contradiction to the theory of separation of power. If judges were to make law in hard cases, they would be applying the law retrospectively; that’s against the rule of law. Citizen has a complaint that even though he was not surprised by retrospective legislation, there was no liability at that time he did the act. If the citizen is being made retrospectively liable, it is because there was no law at that time that made him liable that places a special duty upon the legislature to justify retrospective legislation.

Judicial Discretion

For legal positivism, the law is the law posited. So what is the position in a case where a rule has not been posited?

Take a skateboard case. The actual legal position is likely to focus on language: “Is a skateboard a vehicle for the purpose of the by-law which prohibits vehicles to be used in Hyde Park?

The rule does not extend to determine the question of skateboards. Thus there is a gap in the law. We can simply say that because there is no mention, they are permitted. Both sides cannot refer to decided case-laws. The prosecution might say it is included in the mischief of the Act.

Dworkin wishes us to consider carefully what lawyers are actually doing as a matter of legal principle in hard cases. If both sets of lawyers are serious, both sides believe that they are correct. Both sides actually believe that there is an answer. Why then go to the court if you do not believe that your side is correct, that the law Is as you claim?

Austinian positivism is clear – when the rules ran out the judge operate as a deputy legislator filling in the gaps. To Austin, rules do not have extensionality. However, Neil MacCommick in his “Legal Rights and Legal Reasoning” said that we can extend rules by analogy but this will extend positivism in a way which goes against the essential core: it’s clarity. Austin was interested in the absolute clarity of law.

If for example, a judge decides that skateboards are included in the definition and are banned from Hyde Park, he adds to the wordings of the Statute – he comes to a posited decision. But the judge has now extended the law and this binds the future.

Dworkin is not satisfied with this model. The reasons are: Discretion is not free-standing but part of a process. Discretion, like the hole in the doughnut, does not exist except as an area left open by a surrounding belt of restriction. Discretion is not outside the law but internal to the law. If judicial decision making was unfettered discretion we would have to say that it is no special role for judges beyond being a political and administrative official. If judges were unfettered law makers they would have to be democratically elected.

If judges simply exercised discretion and make new rules they would be changing the rules of the game. Each time they do so they also commit a fraud on the litigants.

Dworkin has an alternative theory. The first step is to make a distinction between strong and weak discretion. Strong discretion is where the officials are bound by pre-existing standards set by the authority. Weak discretion is when the standard cannot be applied in a mechanical way. There’s a need to evaluate what the standard means in a new case. In weak discretion, there is no gap in the law. Strong discretion does not exist for judges. Weak discretion is part of the judicial role. The discretion is controlled and there are no gaps in the law.

Hart says that judges exercise strong discretion in hard cases. But that seems to equate: Rules + Discretion = New Rules.

In order to understand Dworkin’s criticism of Hart, we need to understand the distinction drawn by Dworkin regarding Rules and Principles, and Constructive Interpretation as propounded by Dworkin.

Legal Rules vs. Principles

Legal rules and principles for Dworkin exist to express and protect rights in the legal order. For Dworkin, the central approach within law emphasizes rights and the protection of the individual, including the protection of minorities who are left out of the consideration of the utilitarian.

Unlike the legal positivists, Dworkin insists that you can’t think of law as just rules. The idea that laws are rules induces distortion in legal reasoning. Instead we must distinguish rules from principles, policies and other non-rule standards.

In the operation of the legal system, policies are not appropriate to legal reasoning and principles are more important than rules as they surround the structure of rules.

All rules produce problem cases or hard cases which cannot be resolved by logical application of rules. Dworkin argues that in hard cases judges make use of standards that do not function as rules but operates as principles. Where two rules conflict, one rule is always wrong or invalid. Rules therefore operate in an all-or-nothing fashion.

Dworkin calls us to consider the actual operation of 4 cases, in particular, Riggs v Palmer.

In Riggs v Palmer, Elmer murdered his grandfather in order to inherit his will. Had the court taken the positivist view, that all laws are valid by the formal test (as per Hart’s thesis), the court would most probably decide in favor of Elmer. But the court did not allow Elmer to profit from his own wrong. That decision proceeded not on rules but on a principle of law, Nullus Commodum Capere Potest De Injuria Sua propria, that is, no one can profit from his own wrong.

Rules also do not cover the development of the Common Law through precedent and cannot adequately explain the creation of the “Neighbouring Principle” in Donogue v Stevenson by Lord Atkin. The creative role of Lord Atkin lies in his giving constructive interpretation of the earlier cases and formulating the principle in a new way.

Similarly, Lord Denning’s development of Promissory Estoppel doctrine in High Trees case was not pulled out of thin air.

We can see that the rules have a different meaning and different effect when you apply relevant principles. Whereas policies are the collective goals of society pursued by the legislature, democratically elected, principles are internal to law and are developed by the judiciary. So the rule that a person may not benefit from his own wrong is a principle which is found throughout the law.

For Dworkin, judges are always constrained by the law. There is no law beyond the law. In every adjudication of hard cases there are controlling standards which the judge is obligated to follow. Judicial decisions are generated by principles and enforces existing rights so that litigants are entitled to the judge ‘best judgment’ about what their rights are. Judges may not rely on their own political views but only on their belief in the soundness of their contributions.

Rights vs. Rules

Dworkin distinguishes right from rules. Rights are more fundamental than rules in a legal system. Rules express rights but the rights exist before their expression in the form of rules. This is opposed to HLA Hart’s view where rights develop from legal rules. The reason why Dworkin says rights are more important is because rights develop in the legal system through the working out of the political morality.

In summary, Dworkin’s right thesis asserts that a right legal answer would be one that asserts and protect rights which are explicit or implicit in the fundamental values of the legal system. To get the right answer, judges must have the ultimate wisdom from the history of decisions and the understanding of the political value of a system. A right answer is one which produces a better fit with existing law and legal practices. Here, Dworkin constructs a model of such a judge called Hercules. Although Hercules is only an ideal model, judges have an obligation to aim for the right answer.

Criticism of Right Thesis

MacCommick assert that the proposition that judge have a weak discretion and that they are to find the right answer from the principles is unsustainable.

Critics such as Greenawalt have argues that the ‘denial of discretion is wrong and is inconsistent with our ordinary understanding of judicial responsibilities for opinions. To suggest that judges have discretion is not to imply that they have license to do what they will. The institution of judging offers the judge choice only within the constraints of judgment.’

Greenawalt argues that there are also examples which contradict the right theories. For example, in a case of nuisance, the judge may consider the effect of his discretion on the community before accepting the right of the claimant. Such cases indicate that judges do decide on policies while determining the rights of the individual.

Dworkin replies that this is not a case of policy but a case where the judge compromises competing rights.

Other critics also criticize Dworkin on the ground that the right thesis cannot be demonstrated that there is only one right answer to a question. Supposing two judges are to decide whether Elmer is entitled to inherit his grandfather’s property, they may answer this question differently from each other and yet claim that each answer is the right answer. How do we demonstrate that there is only one right answer to a problem/

Dworkin’s answer is that it is insufficient to say that there can be no right answer just because they cannot be proved or demonstrated.

Hart criticizes Dworkin’s right answer thesis as flawed and vulnerable to criticisms. Hart described Dworkin as a “Noble Dreamer”.

Peter Fitzpatrick called Dworkin’s strategy to give systematic unity to the legal system and legal practice “Myth Making”.

To his critics, Dworkin continues to build his myth and noble dream. While he began his writing in the early 1970s, Dworkin’s best known work, Law’s Empire was published in 1986. To Dworkin’s supporters, he is offering an uplifting image of law. Dworkin challenges us to renew our faith in the law by recasting the lenses through which we view the role of law and legal practice. In Dworkin’s word: “We live in and by the law … it makes us what we are …”

Stephen Guest says, “Dworkin’s Thesis is not his own making but it has been ascribed to him. It can be said that what Dworkin meant to say was that there is a possibility of finding the best answer. In other words, the judge is given the hope that he must not give up thinking that there is no best answer at all.

Conclusion

Dworkin’s Right Thesis wants us not to relent but to make the utmost effort to get the best answer. It is a sort of ideal that Dworkin seems to present to the judge in practical pursuit. As per Stephen Guest, “He (the judge) may not get it right but the duty is upon him to try nevertheless.

Dworkin’s work has consistently been concerned with judicial interpretation of law and the role of judges. Dworkin is clear as to the political values he is committed to. His philosophy stresses a ‘Right’ approach over utilitarian calculations.

It is aptly to describe Dworkin’s theory of law lies in the best moral interpretation of existing social practices. His theory of justice is that all political judgments ought to rest ultimately upon the injunction that, people are equal as human beings, irrespective of the circumstances.

However, it seems Dworkin is very much influenced by professor Ron Fuller. His outlook of law come to be colored deeply by ethics and morality as expressed in hi theory and can be seen in his preferences of principles over rules. As a matter of fact, all legal principles pertain to the domain of morality.

My criticism of Dworkin’s analysis is that Dworkin sought to merge the descriptive elements with the prescriptive to the extent that he has sacrificed reality to a noble dream.

However, dreams have their place. They are better than nightmares. This dream looks at what the law can achieve. It sees a purpose to law rather than a mere instrument for social control. We awake from the dream refreshed.

This is what law is: for the people we want to be and the community we aim to have (Dworkin Law’s Empire)