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DWARKINS THEORY OF MORAL INTEGRITY OF LAW
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DWARKINS THEORY OF MORAL INTEGRITY OF LAW
AUTHORED BY -
PARASA TANMAYEE,
DAMODARAM
SANJIVAYYA NATIONAL LAW UNIVERSITY
ABSTRACT
What is ‘law’? or What is
the basis for the application of law to achieve the end i.e., justice are some
of the hounding question since centuries. There are multiple theories and many
of the theorists from Plato, Bentham Austin etc. tries to give their interpretation
and perspective in which law should be regarded and applied. One of the
renowned philosophers, jurist and scholar is Ronald Dworkin who purposed his
ideas in his book Law’s Empire. He majorly proposed the view of law and the
adjudication process based on the integrity. His theory was also on the
interpretation of law through the lens of integrity.
This paper concentrates
on Dworkins idea of moral integrity of law. It mainly discusses about the idea
of integrity which Dworkins proclaim to be distinct from the political virtue
and justice. In general sense the notion ‘integrity, is associated with the
adherence of principles especially moral principles. However, Dworkin in his
work has focused on the idea of integrity and he further proposed that
integrity is of two types which is legislative integrity and adjudicative
integrity.
In this paper we shall discuss about the idea
of integrity, legislative and adjudicative integrity, theory of law based on
moral integrity and also the limitations of the criticism of Dworkins theory.
LITERATURE REVIEW
Book
·
Understanding Jurisprudence: An introduction to legal
theory By Raymond Wacks
Raymond
Whacks is a renowned emeritus professor of law and legal theory in Hong Kong
University. In his book Understanding jurisprudence an introduction to legal
theory he had incorporated the principles and major theories in a simpler and
student friendly manner. The chapter 5 of this book which consists of the
theory of ‘integrity’ and moral integrity of law are majorly referred in the
literature review of this project. The concepts of hard case, Hercules
adjudication and criticisms of the Dworkin’s theory by multiple critics was
also referred in this study.
Journal
articles
·
Dworkin on Value of Integrity by Jonathan Crowe
Jonathan
Crowe is an Australian Philosopher of Law he also worked as a professor in his
career. His paper on the Dworkin on value of integrity which essentially talks
about the fundamental concept to of integrity, types of integrity and also the
application were referred to in the making of this project.
·
Integrity in Law’s empire By Andrei Marmor
Andrei
Marmor also a professor of law and he also worked as a professor of Philosophy
at an early stage. In his paper called Integrity in law’s Empire he had given
his views and interpretation of the Dworkin’s theory of moral integrity of
laws. From this paper, concept of integrity of law and also his criticism on
the interpretative theory of adjudication integrity was also referred in this
study
Other references
·
Dworkin and focus on integrity By Albert Calsamigila
·
Law, integrity and interpretation: Ronald Dworkin’s
Law’s Empire By Steven Ross
Dworkins theory of integrity
Over time, Dworkin's
theory of law has undergone tremendous development. Here, the focus is on the
Law's Empire edition, which is the most comprehensive to date.
Dworkin famously breaks
down the judicial decision-making process into three steps in that work. The
first step is the pre-interpretive stage, during which the rules and standards
that are tentatively relevant for the current instance are determined.[1]
The second stage is an
interpretive one in which the judge develops a broad theory of the causes and
justifications underlying the components of practice noted in the first stage.
Finally, at the post interpretive stage, the judge develops an opinion about
the judgement that the prevailing social practice in this case needs, taking
into account the broad justification framework proposed at the earlier stage. An
overtly purposeful element is added to legal discussion during the interpretive
step of the aforementioned procedure. The central idea in Dworkin's theory of
legal adjudication is perhaps the employment of a general theory outlining the
values and principles that underlie the important legal norms. The purposive
aspect of Dworkin's theory and his idea of integrity in the law go hand in
hand.[2]
Integrity is regarded by
Dworkin as a distinguishing political ideal. His initial division of this idea
into two parallel notions—integrity in legislation and integrity in
adjudication—represents the two distinct categories of legal decision-making.[3]
Legislators must make the
law logical while keeping in mind a set of underlying values in order for it to
be considered law with integrity.
Judges must view the law
"as expressing and honoring a set of logical principles" in order to
carry out their duties with integrity. According to Dworkin, "no competent
analysis of our political practice can overlook it" since it is "so
much a component of our political activity."
In making this assertion,
he depends on an explanation theory for our current legislative processes,
which only adequately explains these behaviors and the political worth of
legislative integrity.
We can only adequately
explain these behaviors and the societal attitudes that support them if we
believe that integrity has intrinsic worth. Dworkin continues by incorporating
this explanatory account of integrity into a more comprehensive interpretive
theory of the political community: the idea of integrity is consistent with a
"community of principle" - a "genuine associative
community" capable of upholding a plausible claim to moral legitimacy -
rather than a "rulebook community," which appears to be driven only
by power. Similar logic is used by Dworkin to support the importance of
integrity in decision-making. The debate centers on what is the most
appropriate justification for judicial practice. Dworkin believes that the
concept of intention shapes how judges understand legal documents.
To give specific legal
regulations a cogent background context, the use of purpose in legal
interpretation includes referring to a collection of overarching objectives or
guiding principles. Following that, this interpretive theory of adjudication is
included into a broad account of legal institutions as expressing a certain
idea of the legal community. At this more abstract level, the distinct concepts
of integrity in legislation and integrity in adjudication produce a general
idea of integrity in law. It's significant to highlight that, in promoting
integrity as a distinct and independent political ideal, Dworkin does not
firmly believe that integrity has value regardless of the legal and political
situation.[4]
In contrary, he seems to
view it as having autonomous significance inside a specific political society,
more especially one built on the Anglo-American common-law system. According to
Dworkin, the claim is that "our political practices recognize integrity as
a distinct value"; in other words, integrity "is so much part of our
political practice" that, in interpreting that practice, it cannot be
rationally ignored. However, Dworkin believes that integrity has intrinsic
value and does not require the addition of additional conditions or values to
be useful. In the next chapter integrity as a political virtue and the distinct
nature of the integrity will be discussed along with it the moral aspect will
also be discussed.[5]
As stated earlier ,
Dworkin distinguishes between two fundamental domains: adjudication and
legislation. Judges are required to interpret the law in ways that would
attempt to make it as morally consistent as feasible, and this is where
integrity plays the most overtly practical role in common law adjudication.
However, the virtue of integrity also pertains to the formulation of laws, that
is, to concerns of policy and the advancement of the good. Political action
should be founded on justifications that take into account the general moral
coherence of the laws and policies now in place as a serious factor that may
council in favour or against specific decisions. In other words, integrity has
a part to play in both the formulation of new laws and policies as well as the
interpretation of already existing laws;
It is a comprehensive
political virtue that can be used to make both legal and political decisions.
So what exactly is this honesty in politics? The most straightforward response
is that moral coherence—or, more specifically, the coherence of the morally
fundamental principles—justifies the pertinent moral, political, and legal
historical judgments in a given domain. When they originate from the strongest
overall justification of the pertinent practical realm, political judgments
adhere to the concept of integrity. The best interpretation of previous
decisions and commitments indicates that a decision would be in violation of
integrity if it cannot be incorporated into a morally consistent worldview. As
a subset of Dworkin's comprehensive theory of integrity, this is the
straightforward response.[6]
Few people would have
significant doubts about the usefulness of moral coherence if that were all
there was to the virtue of integrity. Anything that is more logical than its
alternative must be better than the alternative. Without recognizing the
importance of coherence, it is challenging to imagine our worldviews, whether
they be in the moral or any other domain. At the very least, we must admit that
incoherence is a warning sign, a signal that something is not quite right. But
Dworkin's perspective is not reflected in this straightforward definition of
integrity. In his opinion, the importance of integrity is considerably more
fundamental and is intimately related to political legitimacy.
LAW AS INTEGRITY
Dworkin in his works
actually criticized the positivism especially that of the Hart’s ideals of
positivism. The two major arguments of him against positivism are: 1) law is
the function of social convention and it is more than following set conventions
or pre decided rules and norms.
The second one is that
the law in itself is never complete and law can never have solution to all the
probleum s however these gaps in law should be filled by the judges by using
their own interpretation and predilections. He advocates interpretative theory
of adjudication where the judges own power of interpretation of laws will play
a major role and they also have strong discretionary powers. He also bases his
arguments on the failure of the emphasis on the individual rights and also the
rigid application of the laws in all the cases. Dworkin argues that a law
should also contain principles. What is a principle? Principles are considered
to be rights. He argues that the rights of individual rights or the principles
should not be looked down or ignored with the prevalence of the rules or the
common laid down principles which are beneficial to the community as a whole.
So here we can clearly see that Dworkin is against the system of rules so he
proposes the concept of hard case and Hercules.
Coming to the idea of
hard case and Hercules he states hard case is where there will be no direct
answer or immediate solution to the and the judge need to interpret and use his
own discretion to find the solution. He appoints ‘Hercules’ as the judge with
super human skill, patience and acumen. Hercules here is expected to fill these
legal gaps he needs to form the abstract and specific principles bridging the
so-called gaps in the law. Here comes the question of integrity in law, according
to Dworkin, Hercules should utilize consistency and integrity to bridge this
gap and should owe his existence to the gapless legal system where the
individual rights re recognized.[7]
Hercules is expected to recognize and respect the moral right of the claimant
and along with that he should also recognize the institutional rights and use
them with his discretion to give one best and the fit answer. Now the notion
‘best and fit answer’ comes into play. Dworkin claim that after the application
of the principle and through interpretative adjudication one can arrive at a
single solution which fits the best to the probleum. He argues that every
question or the case have a one fit and right answer which will be arrived by
the Hercules while administering interpretative adjudication. However, his
theory of one right answer was questioned as was subjected to many criticisms.[8]
Thus, Hercules is a
helpful interpreter of the chapters of law that were written before him .
According to "Law as Integrity," he must consider whether his legal
analysis may be integrated into a theory that coherently defends the entire
legal system. However, where does Dworkin's fundamental idea of
"integrity" fit in? Although he does not define it, he paints a
picture of its key characteristics that were covered in preceding chapters.[9]
Law as integrity
unreservedly respects the rule of law and legal rights... It assumes that the
limitations imposed by the law serve society not only by ensuring procedurally
justice and predictability, but also by ensuring a level of equality among
citizens that strengthens their sense of community and increases the moral
basis for the use of political power. It contends that obligations and rights
stem from earlier decisions and are therefore considered legal not only when
they are stated explicitly in those decisions but also when they follow from
the moral and ethical standards that those explicit judgments assume as
justification.
As a result, the
fundamental issue about the connection between law and force is at the heart of
Dworkin's philosophy. The use of coercion and the extent to which it may be
justified are inextricably linked in law. This is a recurring theme in natural
law, legal positivism, and some social theories. According to Dworkin, a society
that upholds integrity as a political value does so largely to support its
moral right to hold and exercise a monopoly on coercive force and he
points out several additional effects that result from the acceptance of
integrity, such as defense against partiality, dishonesty, and
corruption.
Integrity also encourages
involvement in democracy and the notion of self-government. It is, in essence,
a collection of ideals that make up the foundation of a liberal society and the
rule of law, or, as Dworkin has now dubbed it, "legality." What makes
us value the law? Why do we like societies that up hold the law and, more
significantly, why do we commend them for upholding the moral principles that
define governments governed by the law? Dworkin argues that while an effective
government is admirable, law serves a higher purpose that is more important.
Any rational
justification for the value of legality must emphasize the fact that efficiency
of government is unquestionably a significant byproduct of legality. No ruler,
not even a tyrant, lasts for very long or succeeds in his objectives.
Especially if he
completely forgoes law in favour of whimsy or fear. Though, there is another
significant value that legality may also be understood to serve. This value is
sufficiently distinct from efficiency to provide individuals who value it
highly a clear idea of what legality is for. It does not conflict with
efficiency, however.
Political integrity
entails equality before the law, not just in the sense that the law is upheld
in its entirety but also, and more importantly, in the sense that the
government must operate under a set of fundamentally universal values. Even if
it occasionally improves government efficiency, arbitrary coercion or
punishment contradicts that fundamental aspect of political equality.
Dworkin's legal
philosophy is fundamentally based on his concern with the morality of the law.
It is founded in large part on the ambiguous idea of "community" or
"fraternity" as stated earlier. . He states that the notion that
integrity commitment is a necessary component of a "true community,"
which in turn is a necessary component of associative obligations. In the case
of a political community, the relevant associative obligations are a necessary
component of, or at least a precondition for, political legitimacy. Since there
are numerous moving pieces, we must move slowly and with caution. It is a
concept that Dworkin's critics, especially the neo-positivists, as they should
perhaps be called, continue to react to with hostility.
ASSAULT ON DWORKIN’S THEORY
In the earlier chapter we
have discussed the theories and the ideas proposed by Dworkin concerning the
interpretation and the application of the law in the adjudication process. As
said earlier he proposed many new approaches concerning the same, these new
ideas and approaches were widely discussed during that since they were highly
controversial.[10] Another
aspect of the discussions is that Dworkin’s was particularly against the Hart’s
methods this attracted much of debates and discussions on the ideas and
theories proposed by Dworkin.
Some of the key arguments
or the key criticisms to the theories and ideas proposed by Dworkin are listed
below
I.
The debate against the Hart was highly controversial in Dworkin argued
that there was the sematic sting to the positivity and it attracted
conventionalism However, Hart in the later point of time in one of his papers
had defended that in his idea of positivism judges do have discretionary powers
and he also stated that law cannot be same for every one it is different for
different individuals. He also seemed to accept that the force of coercion also
can be moral coercion. This famous debate among Hart and Dworkin attracted
critics to examine and criticize Dworkin’s theories. Some of the criticisms are
Rules may also include principles i.e., principles or the regard to rights can
also be incorporated in rules. Dworkins also failed to differ the specific
principles from the general principles. His argument that in the proposed
positivist system judges have weak discretionary powers was also highly
criticized. It is argued by professor that judges do not actually lack
discretionary power but they tend to choose between the decisions which was by
their choice not because of the lack of discretionary powers. [11]Dworkin
acknowledges that judges have 'poor' discretion (their decision impacts a
challenging case's result). Critics disagree that judges lack ‘strong'
discretion to choose between X and Y.
II.
Some point to the vagueness of discretion, while others (like
Professor Hart) choose the 'unexciting' intermediate stance that judges
sometimes employ discretion. Joseph Raz says Dworkin's beliefs are similar to
Hart's. Joseph Raz says Dworkin conflates rules and principles. Raz analyses
legal principles and concludes that, contrary to Dworkin's argument, they
assume and direct judicial discretion.
III.
The next criticism is of who criticized that Dworkin ambiguously
discussed ‘law’ and ‘the law’. His ideas were nor clear and distinct between
the general law i.e., the common application and ‘the law ‘i.e., the specific
in nature. He interchanged both the ideas at few instances and there was no
distinct difference between both the notions and applications.
Kramer criticizes that
“Dworkin swerves back and forth
between speaking about law and speaking about the law; that is, he equivocates
between speaking about a general type of institution and speaking about one
instance of that general type ”
Kramer says this is problematic
because it's used to differentiate his theory (concerning 'the law') from
positivist views (concerning 'law').
IV.
Dworkin’s argument of rejection of the utilitarian principles were
criticized and some of the critics expressed that if a person’s liberty is
curtailed it does not mean that he was not treated equally. Inadequate
definition of hard case was also criticized. Th notion ‘hard case’ which was
introduced by Dworkin was criticized that was inadequate and was ambiguous.
Hart argues (against Dworkin) that restricting X's liberty does not mean he is
not treated equally. For Dworkin, counting "external preferences" constitutes
double counting. Hart and those who favour utilitarian justice disagree. There
was no proper yardstick for determination or characteristics of the so-called
hard case. There were also criticisms
on the working, integrity and the nature of judgement of Hercules who was the
supposed adjudicator to determine the decisions in the case of hard cases based
on integrity.
V.
Another major criticism of the Dworkins theory is the ‘one right answer’
theory. Dworkin proposed that there would be one right answer which is best and
fits for every legal and moral question this was highly criticized. Critics say
there isn't one right answer to every legal question.
Dworkin's argument for the
right-answer thesis is complex, its understood in two points. Two forms
are possible. The first claims that attorneys' linguistic behavior is
misleading because it appears there is no 'logical space' between "this is
a valid contract" and "this contract is invalid." It does not
consider both propositions false. The contract may be 'inchoate' So, there is
no clear answer to whether a contract is legitimate or void.
The second version doesn't assume any
'logical space' between valid and invalid contract claims. It assumes no third
alternative. Yet neither of the two alternatives is always true. Dworkin
expresses alternatives using formal logic. You probably won't need logic
skills. You should illustrate if Dworkin disproved the claim that there is no
right response.
VI.
Then there was Stanley Fish who argued that law cannot always be only
interpretative in nature however there can be theory which can be unconnected
to a specific field and have a generalized usage. There were multiple other
criticisms on his theories of integrity and fit and also on the sematic sting
which e proposed be that conventionalism.
Andrei Marmor attacks Dworkin's
'interpretive' project and law's integrity. The judge interprets legal
information based on basic evaluative judgments like 'integrity,' according to
Dworkin.
However, In the absence of a belief that legal texts regulate
interpretations, integrity is useless. If not, Hercules could make it up.
VII.
Commentators point to a
shortcoming in Dworkin's model of law.It seems to be based on a liberal
democratic (read American) understanding of society, therefore applying it to
other communities, especially 'unjust cultures,' is difficult. It's unclear how
the theory would work in an unjust or undemocratic society. As we saw, Dworkin
argues from a liberal democratic standpoint.
VIII.
Many commentators have questioned Dworkin's view of law as
interpretative. Stanley Fish argues that interpretation is a "social
construct": the meaning of a legal or literary piece is a result of
"interpretive communities." Fish denies that there can be a 'theory'
unrelated to a particular field of action yet universal enough to constrain and
explain all fields of activity. Fish, a dispassionate theorist, disagrees. We
are all bound by our beliefs. All we can do is articulate our particular
rhetorical positions and persuade others of their force.
IX.
Though there were many criticisms about his ideas and theories by various
contemporary philosophers and jurists to which he also defended his theories
and ideals and there were also works as a reply to the critics for example
chapter called replying to critics in the book taking rights seriously.
CONCLUSION
Therefore, to summarize
the above study we can understand that Dworkin was one of the few jurists who
work was most discussed and pondered upon. He was different and distinct in his
approaches. He did not side with either natural or the positivist ideals.
Essentially, we can observe that with his concept of integrity he appears to
incline towards the inclusion of morals and the judgement based on the morals
and integrity. However, he was not considered to be proponent of the natural
law. He is often regarded as the founder
of the third way. Here we also discussed the criticism towards the positivist
approach where he gives a sematic sting to the positivist approach with his
conventionalism and the reasons for the same. His concept of legal gaps was
also highly recognized and to fill them he also proposed ‘Hercules’. Though
there were multiple criticism on the Hercules but still it is highly regarded
and considered in the adjudication and the methods of interpretation of laws.
In my opinion Dworkin was
actually concerned and was proposing ideas for the practical application of law
which will be created by the legislators. If there was strict interpretation of
the legislated law as mentioned by Dworkin the rights of the people and the
moral principles will take back seat. This poses a serious issue to the justice
delivery and the rightness in the adjudication and interpretation of the laws.
His concept of ‘hard
case’ can be observed in the present day where the interpretation of the law
will be the fulcrum to arrive at a decision. For example, we can take ‘marital
rape’ where the strict interpretation and the moral rightness is at crossroads
and there was no straight answer to the question. But the conflict comes with
the solution and his concept of right answer where he disregards his concept of
perspectives and the subjective nature of law.
Therefore, we can
conclude that his contributions to the interpretation of the law and the problems
he identified can be highly regarded however the solution he offered were
disputed but they still stand out as distinct and justified in their own way.
[3] Albert Calsamiglia, Dworkin and the
Focus on Integrity, 80 Arch. Philos.
Law Soc. Philos. 52 (1994).
[5] John Elkington, Integrity and
universality?:A comment on Ronald Dworkin’s Freedom Laws, 65 Fordham Law Rev. (1997).
[7] Raymond Wacks, Dworkin and moral
integrity of law , in Understanding jurisprudence An introduction to
legal theory 118 (3 ed. 2012).
Article Information
DWARKINS THEORY OF MORAL INTEGRITY OF LAW
Authors: PARASA TANMAYEE
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/05/24
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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