Positive law is one of the fundamental schools of thought in jurisprudence and the philosophy of law, amongst a few others such as Natural Law and Legal Realism. The concept of legal positivism in essence is engrained in two basic ideas: one, that morality and law have no inherent or necessary connection, and the second that laws are rules created by human beings. Legal Positivism has its own criticism and in the article titled “Integrity in Law,” from his book Law’s Empire, Ronald Dworkin presents a theory of law of Integrity, which aims to challenge Legal Positivism and present a better understanding of adjudication in respect to law. Law’s Empire was written as a direct criticism of legal positivism as H.L.A. Hart had presented it. Dworkin’s work and motivation in the article is a criticism of positivism at every level, and in the article he criticizes positivism through some of his basic ideas that formulate essentially into his Right Answer thesis. Dworkin’s is especially motivated to present a better explanation of adjudication than what legal positivism offers, which includes the role of principles in judicial decision making. In this paper I will discuss how Dworkin argues for his right answer thesis, through an examination of his chain novel view of law, the process of constructive interpretation of law as integrity, and the presentation of the ideal Judge Hercules. I will also in the process of this paper raise some questions about integrity as law and provide a reply of how Dworkin might respond.
The introduction of Dworkin’s theory is through his analogy to that of a novelist writing a chain novel, which has been passed from author to author. In this process, each author has to find an interpretation upon which to write his piece, while the interpretation must be one that fits well with the story so far handed from what has been written before, and which makes the story the best it can be (F&C 137). Dworkin equates this method of writing a chain novel to the process of judicial decision making that every judge goes through when presented by a case. The novel is jurisprudence, and the judge, being the novelist, must be assured that the decision he comes up with for a case fits well with a story explaining all the precedents having been set before in similar cases; so that the unified interpretive sense of law can continue. The chain novel view of law seeks to present the historical legal record as constituting the source for legal interpretation. Dworkin states that this does not mean that the judge deciding a case must figure out what the original writers intended to mean, rather they must figure out which interpretation of the case fits well with all of those historically preceding it. The chain novel idea is a crucial part of the Right Answer thesis, as it sets the basis for the process of how to arrive at the right answer of which interpretation must be chosen.
In the process of writing the novel, the novelist is presented with the option to pick which interpretation to follow. Dworkin states that the novelist is constrained when choosing an interpretation, not by the choices present but by the novelists own convictions about “fit.” When applied to judges, the constrain on choosing an interpretation comes from the judges personal necessity to amalgamate their convictions about “fit” with their convictions regarding their interpretation fitting best with the interpretive practice of law. In law, then, “there is a delicate balance among political convictions of different sorts”, which must be related but also set aside such that different interpretations can succeed on certain standards and fail on others (F&C 141).
Another critical aspect in the theory of integrity as law is the role morality plays when the judge must pick the right interpretation. This is a consequence of justice and fairness, the two being part of political morality, playing an important role in Dworkin’s theory, and just as the judges have political convictions in choosing the right interpretation they also have moral convictions (F&C 145). In defining integrity, Dworkin states, “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 community’s legal practice” (F&C 137). Through all of this Dworkin is suggesting that the concept of law comes from what can be seen as a constructive interpretation of the history of the legal system, and that the constructive interpretation heavily involves integrity as defined above. The law is seen as a seamless, self-existent unity of all legal material.
The question that arises here is that sure this process of interpretation according to integrity works for cases that have legal history of prior cases where the precedent has been set, but how does law as integrity work for new or fresh cases? It would seem that the system is flawed. Dworkin’s reply to this is in the definition of integrity itself, provided in the previous paragraph. Dworkin wants to suggest that when there is no precedent and so no clear interpretations to be taken, the interpretation of the case can be based on the principles of law as integrity, such as justice and fairness. Of course, here again, the right answer the judge arrives at will be dependent upon his or her political and moral convictions, but judges will still be constrained in how they interpret what the right story should be due to their necessity to integrate their political and moral convictions with their convictions on what is the best interpretation according to the principles set by law as integrity.
In order to demonstrate that how the integrity as law system could work, Dworkin presents to the reader the metaphor of an imaginary person named Hercules, who is an ideal judge, immensely wise and patient, and is omnipotent of legal knowledge. The author suggests that regardless of the case Hercules is given, Hercules will, due to the all the attributes attributed to him above, Hercules will always come down to one right answer for the case. This is Dworkin’s Right Answer thesis, such that no matter how hard the case is, there is always one right answer to be sought after through thought and imagination. If law as integrity is applied properly to a case, then the right answer of which interpretation to apply will be arrived at. Finally, it can be seen that Dworkin is suggesting that judges should implement the model of Hercules’s use the chain novel model that applies integrity as law in order to come up with the right answer.
One of the obvious questions here becomes that the process might work for Hercules but every judge is a mortal being who does not have Hercules’s attributes, so what evidence is there that law as integrity and the right answer thesis will work for a regular judge? Dworkin’s response to this is that judges with experience will already contain a vast amount of knowledge of which legal cases to consider when confronted with another case. Therefore, the judges will already be in the process of applying integrity as law by knowing “instinctively which interpretation of a small set of cases” to consider (143). This appears to me to be a weak response as it still does not address the fact that Hercules has an omnipotence of legal knowledge, whereas no matter how vast the knowledge the judges have with their experience it can in no way be omnipotent. Then, the “right answer” the judge comes up with might not be right, as their interpretation and answer is limited to their experience and not extended to the unlimited time and superhuman capabilities of Hercules.
There are at least two more problems with the Right Answer thesis. The first is that given the premises Dworkin has given for Hercules, is it not also possible for Hercules to not ever come up with the “right answer”? The view of Hercules here seems to me to be similar to that of a natural law type where this Hercules is the “God of Law,” and so just because he is the “God” he must know everything and therefore must know the right answer. But, there is also the possibility that given infinite time and infinite knowledge, that there could be, if not infinite, then many right answers and so Hercules could never resolve onto one answer; there may be several that are equally morally right, as well as equally fitting of the constructive interpretive sense of law.
Also, a major problem that is present in the Right Answer thesis is that of incommensurability. The issue of something being incommensurable comes up for example in a legal question where there are two sides that are in rough equipoise, such that neither of the sides is stronger than the other, nor are they finely balanced. This creates a problem for Dworkin as this could occur with the interpretations of a case judges are contemplating. How do you resolve the problem of incommensurability? Dworkin might respond that regardless of the difficulty of a case there always seems to be one fact in one side or another that would push for the interpretation to choose that side. This seems to be a reasonable response that Dworkin might offer, but I am still not sure whether it solves the problem entirely because it might not be the case that such a small fact may in reality push for one interpretation over another.
Everything that Dworkin states in formulating the Right Answer thesis is a critique of legal positivism because it attacks positivism at some level in each step. The chain novel example for integrity as law is a criticism of positivism because it suggests that law is a coherent whole and an interpretation of law requires interpreting the entire legal history of the law, whereas in positivism judges exercise discretion and make law. One cannot make law in the law as integrity form of jurisprudence as even in fresh cases one can only interpret the principles and apply those. The coherent principles of law as integrity, which include political morals such as justice and fairness, also criticize positivism as they suggest that judges apply moral convictions in cases and therefore morality is involved in law in an epistemic sense, while positivism holds that morality is not inherent or necessary in law. It is interesting to see how the entire setup of the Right Answer thesis is a critique of positivism. A final question that arises here though is that if judges are to treat cases by the means suggested so far by Dworkin, then how can cases be changed where there is apparent discrimination in law by legislature and judicial courts, as well as in the public climate? It would seem that it would be necessary to see law in a positivist perspective so that the judges can create new laws that eliminate discrimination and effectively enforce them. Dworkin’s reply would most likely be that the judge must interpret a discriminatory case in accordance to the principles of law as integrity and from there be able to set a precedent that would overturn discrimination eventually. I am not entirely sure if that would always work because if the judge has a moral leaning that is discriminative then his conception of law as integrity would be different than another judge whose morality is not discriminative. Dworkin’s interpretive view of law also seems like it would be more ineffective in creating change since it might require longer time for other courts and judges to change their interpretations.
Though Dworkin’s example of Hercules seems a bit too fictitious to be applied realistically by judges, Dworkin does provide an interesting perspective on the view of law. It might be possible to see his ideal method implemented in courts today, and his ideas provide useful critique for proponents of legal positivism. Dismissing his thoughts completely on the basis of some weaknesses that are apparent would be unproductive, as there are useful views of interpreting law that are learned from his article.
Dworkin, Ronald. “Integrity in Law.” Philosophy of Law: Eighth Edition. Feinberg and Coleman.