Law as integrity
Shirley Robin Letwin
LAW'S EMPIRE by Ronald Dworkin
Harvard University Press, £16.95, £6.95
Ronald Dworkin is something of a phenomenon. In 1969, at the age of 38, he was imported from Yale to the Chair of Jurisprudence at Oxford. His appearances on television and in popular journals to defend the North Vietnamese, blacks, and other victims of the United States, made him a public figure. He persuaded Oxford that, unlike his colleagues, he could simul- taneously manage a second professorship in New York. And when he lectures at the British Academy, the judicial establish- ment along with other notables turn out in force to listen.
As a philosopher of law, Professor Dworkin became known for inventing the 'rights theory'. If only judges would think in terms of moral 'rights' and 'principles', he argued, they could find the one correct answer even to 'hard cases' without ex- ercising that uncontrolled discretion per- mitted by the traditional view of their role. A few dissidents professed never to have heard of such discretion and questioned the pedigree of Dworkin's rights. No one could say just where rules, that is to say law, fitted into Dworkin's theory. But generally he was hailed as a great philo- sopher who had reconnected law to morality.
Before long, however, the professor lost interest in 'hard cases'. In his second volume of essays, published last year, his literary learning had led him to discover that judges operated in the same way as novelists. And he had become preoccupied with proving by ineluctable logic that justice requires preferential treatment for minorities and that this constitutes treating everyone equally. Though he retained his 'rights theory', he no longer presented it as an answer to a traditional jurisprudential conundrum but as a radical alternative to the defunct 'rule book idea of law'. This time the essays received more criticism than admiration. But everyone still awa- ited the long promised systematic treatise.
At last we have it. If the faithful are dismayed to read in the preface that the author has 'made no effort to discover how far this book alters or replaces positions defetided in earlier work', they should be consoled by his assurance that he has answered all the criticisms of his previous proposals. But the labours they spent on unravelling the mysteries of Dworkinian entities such as 'external and personal preferences', 'institutionalised intent and collectivised understanding,' have become redundant. Professor Dworkin is now the apostle of law as integrity'.
That is his definitive answer to the sins of positivism, conventionalism, moral sceptic- ism, speaker's intention, real statutes, matter of fact and plain fact theories, liter- alism, historicism, passivism, semanticism, the semantic sting, conservatism, checker- board statutes and compromises. Fortu- nately, these are all just different names for what Professor Dworkin had earlier ridiculed as 'the rule book idea of law' and everyone else calls 'law'.
The precise definition of 'integrity' is that it is both more and less than consisten- cy, honesty, morality, justice, fairness; that it is personal, legal, political and also non-political, in short, a good thing. And should you miss the point on one page, never mind, it will be repeated abundantly; the author never spares words.
With this new theory, the professor has reached a sober maturity. Whereas he once boasted of having made radical innova- tions, he now assures us gravely that law as integrity is not at all radical but whole- heartedly committed to respecting 'law and legal rights'. But it has the virtue of being more flexible than 'conventionalism' (the view that law consists of rules) because law as integrity recognises that legitimate rights and duties 'need not be defined explicitly but 'may follow from the principles of personal and political morality' that 'are presupposed as justifications' by explicit decisions. And on the other hand, by insisting that these principles should be coherent, law as integrity avoids the ex- treme of 'pragmatism' which allows judges to ignore 'coherence' by deciding 00 'ordinary non-political principles of morality'.
In other words, the professor presents himself, as he always has, as a 'liberal' but with a new emphasis on being a middle-of- the-road man. Only the middle of his road has a strong leftward camber. He finds the pragmatist view — that people are entitled to rights 'not just because some legislator said so', or 'a long string of judges decided' — wonderfully 'bracing'. He says nothing harsh about Critical Legalism, the latest discovery of progressive jurisprudence, which announces that it wants to bring down capitalism and its law, and has already produced noisy resignations from the Harvard Law School where it reigns.. Critical Legalists disapprove of Dworkin's Pussy-footing, but his only quarrel with them is that they exaggerate the inconsis- tencies of liberalism. And he is entirely at one with them in using 'past political decisions' as a synonym for any legal rule, in defining law as 'a justification for the exercise of coercive force by the state', and especially in his new notion of a 'true' as Opposed to a 'bare' community. A 'true' community, Professor Dworkin explains, is 'associative' and 'fraternal' and distinguished by a 'pervasive' concern for everyone. Since it sees itself as 'a moral agent' and accepts 'collective guilt', the rights and duties of its members need not be 'formally identified and declared' and law as integrity can come into its own. Recognising, rightly, that his readers might be alarmed to hear that carrying a British passport would make them members of a commune, Professor Dworkin tries to reas- sure them by denying that he is advocating anything so sinister as 'nationalism' or an emotion that 'can usefully be called love' and declares his devotion to leaving people 'room for leading their own lives'. Though this might be taken to mean that the professor loves liberty, that is hardly likely. For if judges decide, as he argues, What the law ought to be and not what the law is, then indeed he is right to insist that there is no distinction between law and Politics . But neither is there any liberty as there are no rules, hence no law, left.
This is easy to overlook, however, since the professor is a dab hand at conjuring. He begins his performance with an unex- ceptionable commonplace: 'Judges have to interpret the law and should do so consis- tently.' Next, the commonplace is pro- duced as a bold new discovery: 'Law as integrity is a new interpretive theory of law.' Finally, the crucial words are re- vealed to mean the opposite of what they usually mean: 'Interpreting the law means feeling obliged to ignore established rules in order to distribute goods and power more equally.' Thus, lo and behold, law and morality become one; liberty has disappeared into the conjurer's hat. The act is brilliant. But alas, Law's Empire has stripped the professor of his Philosopher's gown.
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