Jurisprudence Essay In Laws Empire Philosophy Essay

Dworkins theory of law focuses mainly on the role of judges and adjudication. It involves judges interpreting the law in terms of common moral ideals and principles. By keeping this in mind, we see how law as integrity plays an essential part in that focus alongside the rest of his thinking.

Firstly, law as integrity will be explained to understand how it fits into Dworkin’s thinking. Law as integrity ‘denies that statements of law are either the backward-looking factual reports of conventionalism or the forward-looking instrumental programs of legal pragmatism.’ [1] This means that he feels legal claims are interpretive in nature and consists of a mixture of both forward and backward-looking features.

LAW AS INTEGRITY

If we were to ascribe someone the trait of ‘integrity’, we would think that they have a socially accepted set of moral principles. They do not invoke certain principles just for their own personal interests and deny other principles when they feel it threatens their interests. [2] This idea of ‘integrity’ serves as the basis of foundation for Dworkin’s theory of law. It is an idea that is ascribed to the entire system of law as a whole and not to an individual person. Dworkin consistently uses this idea of law as integrity to build upon his entire ideal of how the law should operate; which I will discuss further in this essay.

Dworkin selects law as integrity as his legal theory. Dworkin used the metaphor of the judge Hercules as an example to better explain the mechanisms of his selected legal theory. The Dworkinian judge must look at the overall legal order as whole in order to decide cases. The kind of theory that Dworkin puts forward requires one to look at the criteria of ‘fit’ and ‘appeal’. This means that one must come to a conclusion of the law that is an adequate ‘fit’ and it must also present the law in its most morally pleasing light. [3] Hercules must first select an appropriate theory of law that best satisfies this idea of ‘fit’ and ‘appeal’. Then he will move on to choose the law by reference to the theory that he has picked.

However, some people adopt the viewpoint that Hercules is a fraud and a myth. This is due to the fact that he ‘pretends he ha discovered what the law is, but he has only discovered what it should be’. [4] Critics reiterate the point that Hercules is simply a myth and no judge realistically has the powers Hercules possesses. Hence, it is difficult to apply this in reality. This is an example of how Dworkin’s ideal has been compromised.

RIGGS V PALMER

To better understand law as integrity in motion, I refer to the case of Riggs v Palmer. [5] In this case, a murderer argued that he was entitled to inherit under the will of his victim. The will was indeed valid and in favour of the murderer. Existing rules at that time contained no exceptions pertinent to this case. The court ruled that the application of these rules was subject to the general principles of law, which included the principle that no man should profit from his own wrongdoing. Hence, the court held that the murderer could not inherit under the will. Riggs v Palmer created a new exception to the general rules of law by justifying it using a legal principle. From this example, we can see integrity working in the law. It also exemplifies how Dworkin’s thinking can help solve hard cases when there is a ‘gap’ in the law. This illustrates how the law does not consist simply of rules, but principles as well.

RULES AND PRINCIPLES

Dworkin thinks that laws are founded on a basis of principles that mould and give direction to the laws that they are built on. He asserts that simply adhering to the law as it is written is an insufficient basis of what the law really is; moral principles should not be forgotten where legal reasoning is involved. By understanding the moral principles that form the basis of law only then can those laws by applied in the best light, even when it may seem as though there is a ‘gap’ in the law. These moral principles are wielded from makes the law the law, namely statutes, precedents and so forth. This is a sharp contrast from Hart’s rule of recognition. Dworkin believes that legal principles cannot be identified by simply referring to the rule of recognition (as posited by Hart). He feels that law as integrity needs to be kept in mind in order to achieve a more efficient legal system. Hart focuses on the necessary aspects of the law, not particular features that may possibly be demonstrated by different legal systems. [6] 

CONSTRUCTIVE INTEPRETATION

In Law’s Empire, Dworkin puts forth that ‘legal claims are interpretive judgements and therefore combine backward and forward-looking elements; they interpret contemporary legal practice as an unfolding narrative’. [7] According to him, every time a judge is faced with a legal dilemma, he or she should construct a theory of what the law is. He or she must also keep in mind that the theory selected best fits the appropriate past legislative decisions while making the law the best it can be at that point in time. Dworkin feels that this concept of integrity is integral in handling judicial matters as the law is ever changing, hence the judges should keep this in mind when deciding judgements. They must always keep in mind that their decisions may very well affect future decisions down the line. According to Dworkin, applying the concept of law as integrity helps decide hard cases. The very fundamental reason that hard cases exist is due to the fact that the law concerning the particular case is inadequate. Briefly, a hard case can be defined as ‘a situation in the law that give rise to genuine argument about the truth of a proposition of law that cannot be resolved by recourse to a set of plain facts determinative of this issue.’ [8] Dworkin believes that the reason why hard cases exist is due to the fact that there is no existing law that can deal with it. Hence, Dworkin feels law as integrity is the best way to deal with a situation like this. In his opinion, other theories fall short when it comes to this aspect of adjudication.

CONSTRUCTIVE INTEPRETATION

The notion of law as integrity aims to construct purpose over the legal data or tax that is being interpreted, which leads me to my next point of constructive interpretation. One of Dworkin’s famous works is his idea of constructive interpretation. Dworkin feels that there should be no contrast between the practice of interpreting and applying the law. Dworkin states that ‘integrity is the key to the best constructive interpretation of our distinct legal practices and particularly of the way our judges decide hard cases of law’. [9] Any constructive interpretation of political and moral ideals that is successful will agree that integrity is a significant political ideal, this means that inevitably other political ideals will have to be compromised. [10] He claims that the process of this should be inseparable in order to make it a worthwhile intellectual activity. Dworkin asserts that his model of constructive interpretation can support objective normative claims. [11] Dworkin’s Chain Novel theory shall now be elaborated in order to better explain his idea of constructive interpretation.

CHAIN NOVEL

The Chain Novel theory is centric around the notion of judges and precedents. The metaphor that Dworkin used talks about a group of novelists that write a novel seriatim, with each novelist in the chain interpreting the chapters he has been passed so as to write a new chapter. [12] This means that each judge must use the background (ie precedent) he has been assigned to and use this to influence his decisions. [13] Hence, each judge will aim to make the law better that it has been with the material he has been given. To decide how to make the law better, judges must consider two dimensions on which it needs to be tested on. Firstly, the dimension of fit. The interpretation that the judge takes up must flow throughout from the material he has been given. Secondly, the second dimension requires him to judge, using all the readings given to him, what makes the work in progress best, whilst considering all factors.

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CONSTRUCTIVE INTERPRETATION AS THE MIDDLE GROUND BETWEEN CONVENTIONALISM AND PRAGMATISM

To better understand constructive interpretation in the spectrum of the varying legal theories, it is useful to fit Dworkin’s thinking somewhere on this spectrum. One end of the spectrum lies conventionalism which posits that fundamental principles of a certain kind are grounded on agreements that revolve in society. The other extreme end is pragmatism. It is a process where theory is extracted from practice, and applied back to practice to form what is known as intelligent practice. Pragmatists feel that theory and philosophy should take into consideration the different approaches of modern science. Dworkin’s idea of constructive interpretation falls between these two ideals. He does not adhere to any one end of the spectrum but instead asserts that the fundamental nature of law should fall in the middle of these two extremes to achieve the perfect balance. He uses the idea of integrity to explain how it is the key to achieving the best possible version of constructive interpretation. This is essential in his thinking as it gives us a clearer idea of where he stands in the varying degrees of legal theories.

CHECKERBOARD STATUTE

Dworkin seeks to convince us that we all intrinsically value integrity, even if we do not already realise this. An example shall be used to further explain this concept, formally known as the checkerboard statute. [14] Suppose we do not agree about in vitro fertilisation (IVF), or more commonly known as ‘test tube babies’. Some people feel that it is perfectly fine for babies to be artificially made whereas others feel it goes against the laws of nature. Take for example that the electorate are more or less split down the middle with this decision. Instead of enacting a statute, the legislature decided to enact a ‘checkerboard’ statute, where women born in odd-number years can go for IVF procedures whereas women born in even-number years are not allowed to do so. Dworkin’s point is that we feel that the checkerboard statute is not right. While this statute may be allowed by other political values, we still feel that they are somehow wrong. Dworkin’s answer to this is that justice and fairness are not the only values that are in motion here and that integrity is inherently important in our thinking as well. The checkerboard statute lacks the notion of integrity. Hence, he feels that integrity is important when enacting legislation and it is an intrinsic part of the foundation of law-making.

However, not everyone will condemn every checkerboard solution. Take for example people who believe firmly that IVF should not be allowed will think that the checkerboard statute is better than a lenient law (lesser of two evils, or so to speak).

RIGHT ANSWER THESIS

Another important part of his thinking is the right answer thesis. Dworkin posits that if the law is interpreted correctly, an answer will be produced. The foundations of this thesis is that Dworkin believes every individual possesses rights. Dworkin claims that all legal decisions all have a single right answer unique to them. [15] In his view, a fair and just society is one that acknowledges and enforces the rights of the individuals involved. These rights include those of equality, respect and dignity. These rights are based on the fundamental roots of society. This shows how law as integrity works in tandem with the right answer thesis in order to come up with an answer. By keeping integrity in mind, it forms the backbone of producing an answer. The establishment and development of individual human rights come from our political structures. With reference to Dworkin’s point of view, it is the common good old values that our society hold are key to the dedication of his rights. The three main claims to Dworkin’s right answer thesis are as follows:

This claim reflects our practice. This means that even in hard cases, judges argue and decide cases as though there is a single right answer.

There are right answers to legal questions for the very reason that judges are required to reach a conclusion when placed with a case before them, and it is simply the fact that some answers fit better than others. [16] 

The third theme is to prove or disprove the existence of unique right answers in legal cases is to consider individual, difficult cases and construct an argument that a particular result is the sole unique one, or, to argue that no answer fits better than the others. [17] 

Of course, there has been challenges to this notion that concern problems of incommensurability (whether one can prove that one theory is better over another, when one alternative is a better ‘fit’ one a certain moral, and the other alternative is better on a differing moral) [18] and demonstrability (taking into account Dworkin’s other premises, he is unable to come to a conclusion that there are unique right answers to all legal questions and that these right answers will not be able to be shown, under the suitable premises). [19] The point of discussing the ‘right answer thesis’ is mainly a psychological or sociological one, aimed mainly at judges.

LOOPHOLES (??)

However, it is not to say that Dworkin’s school of thought is completely flawless.

There is a tendency for Dworkin to overlook the peaceful order of a society where debates of essential principle can be conducted. Throughout his argument in Law’s Empire, Dworkin emphasises the need for a community to have some sense of similar interests and agreement. Only then can they agree on how good an interpretation will suit the concept of ‘fit’ and ‘appeal’. Dworkin’s theory does not take into account the mechanisms whereby the law could possibly assist in sustaining the basis of shared morals upon which the law’s own foundation and determinacy may rely on.

CONCLUSION

In conclusion, integrity makes no sense except to people who seek fairness and justice. [20] Integrity is a much more nuanced ideal that it first seemed at first instance as it encourages the judge to be open-minded and creative in his thinking to reach an answer. Theories will always be controversial no matter what.