Académique Documents
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Integrity in Law
pp. 225-275
Dworkin, Ronald Laws empire Hart
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Course of Study: LAWS20101 - Jurisprudence
Title: Laws empire
Name of Author: Dworkin, Ronald
Name of Publisher: Hart
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A LARGE VIEW
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est to prom ote overall w ealth in this w ay, but it does not
suppose that anyone has any right that social w ealth alw ays
be increased. It therefore sets out a policy that governm ent
m ight or m ight not decide to pursue in particular circum
stances. It does not state a principle o f justice, and so it can
not figure in an interpretation o f the sort Hercules now
seeks.6
L aw as integrity asks judges to assume, so far as this is
possible, that the law is structured b y a coherent set o f prin
ciples about justice and fairness and procedural due process,
and it asks them to enforce these in the fresh cases that come
before them, so that each persons situation is fair and just
according to the same standards. T h a t style o f adjudication
respects the am bition integrity assumes, the am bition to be a
com m unity o f principle. But as w e saw at the end o f C h a p
ter 6, integrity does not recom m end w hat w ould be perverse,
that we should all be governed b y the same goals and strate
gies o f policy on every occasion. It does not insist that a legis
lature that enacts one set o f rules about com pensation today,
in order to make the com m unity richer on the whole, is in
any w ay com m itted to serve that sam e goal o f policy tom or
row. For it m ight then have other goals to seek, not necessar
ily in place o f w ealth but beside it, and integrity does not
frown on this diversity. O u r account o f interpretation, and
our consequent elim ination o f interpretation (3) read as a
naked appeal to policy, reflects a discrim ination already la
tent in the ideal o f integrity itself.
W e reach the same conclusion in the context o f McLoughlin
through a different route, b y further reflection on w hat we
have learned about interpretation. A n interpretation aim s to
show w hat is interpreted in the best light possible, and an
interpretation o f any part o f our law must therefore attend
not only to the substance o f the decisions m ade b y earlier of
ficials but also to how b y w hich officials in w hich circum
stances these decisions were m ade. A legislature does not
need reasons o f principle to ju stify the rules it enacts about
driving, including rules about com pensation for accidents,
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even though these rules will create rights and duties for the
future that w ill then be enforced b y coercive threat. A legis
lature m ay ju stify its decision to create new rights for the fu
ture b y showing how these will contribute, as a m atter o f
sound policy, to the overall good o f the com m unity as a
whole. T h ere are lim its to this kind o f justification, as w e no
ticed in C h ap ter 6. T h e general good m ay not be used to
ju stify the death penalty for careless driving. But the legisla
ture need not show that citizens already have a m oral right
to com pensation for injury under particular circum stances
in order to ju stify a statute aw arding dam ages in those cir
cumstances.
L aw as integrity assumes, however, that judges are in a
very different position from legislators. It does not fit the
character o f a com m unity o f principle that a ju d g e should
have authority to hold people liable in dam ages for actin g in
a w ay he concedes they had no legal duty not to act. So
when judges construct rules o f liab ility not recognized b e
fore, they are not free in the w ay I just said legislators are.
Judges must make their com m on-law decisions on grounds
o f principle, not policy: they must deploy argum ents w h y the
parties actually had the novel legal rights and duties they
enforce at the tim e the parties acted or at some other perti
nent tim e in the past.7 A legal pragm atist w ould reject that
claim . But Hercules rejects pragm atism . H e follows law as
integrity and therefore wants an interpretation o f w hat
judges did in the earlier em otional dam age cases that shows
them acting in the w ay he approves, not in the w ay he thinks
judges must decline to act. It does not follow that he must
dismiss interpretation (3) read in the first w ay I described, as
supposing that past judges acted to protect a general legal
right to com pensation when this w ould m ake the com m u
n ity richer. For if people actually have such a right, others
have a corresponding duty, and judges do not act unjustly in
ordering the police to enforce it. T h e argum ent disqualifies
interpretation (3) only when this is read to deny an y such
general duty and to rest on grounds o f policy alone.
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ter light than ever before.10 Hercules w ill confront this issue
as a special question o f political m orality. T h e political his
tory o f the com m unity is pro tanto a better history, he thinks,
if it shows judges m aking plain to their public, through their
opinions, the path that later judges guided b y integrity w ill
follow and i f it shows judges m aking decisions that give voice
as well as effect to convictions about m orality that are w ide
spread through the com m unity. Ju d icial opinions form ally
announced in law reports, moreover, are themselves acts o f
the com m unity personified that, p articularly if recent, must
be taken into the em brace o f in tegrity.11 These are am ong
his reasons for somewhat preferring an interpretation that is
not too novel, not too far divorced from w hat past judges
and other officials said as well as did. But he must set these
reasons against his more substantive political convictions
about the relative moral value o f the two interpretations,
and if he believes that interpretation (6) is m uch superior
from that perspective, he will think he makes the legal record
better overall by selecting it even at the cost o f the m ore pro
cedural values. F itting w hat ju d ges did is m ore im portant
than fitting w hat they said.
N ow suppose an even more unpatterned record. H ercules
finds that unlim ited liab ility has been enforced against a
number o f professions but has not been enforced against a
roughly equal num ber o f others, that no principle can ex
plain the distinction, that ju d icial rhetoric is as split as the
actual decisions, and that this split extends into other kinds
o f actions for econom ic dam age. H e m ight expand his field
o f survey still further, and the picture m ight change if he
does. But let us suppose he is satisfied that it w ill not. H e w ill
then decide that the question o f fit can play no m ore useful
role in his deliberations even on the second dim ension. H e
must now em phasize the more plainly substantive aspects o f
that dimension: he must decide w hich interpretation shows
the legal record to be the best it can be from the standpoint
o f substantive political m orality. H e will compose and com
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pare two stories. T h e first supposes that the com m unity per
sonified has adopted and is enforcing the principle o f fore
seeability as its test o f m oral responsibility for dam age
caused b y negligence, that the various decisions it has
reached are intended to give effect to that principle, though
it has often lapsed and reached decisions that foreseeability
would condemn. T h e second supposes, instead, that the
com m unity has adopted and is enforcing the principle o f
foreseeability lim ited b y some overall ceiling on liability,
though it has often lapsed from th at principle. W hich story
shows the com m unity in a better light, all things considered,
from the standpoint o f political m orality?
H ercules answer w ill depend on his convictions about the
two constituent virtues o f political m orality we have consid
ered: justice and fairness.1 It w ill depend, that is, not only
on his beliefs about w hich o f these principles is superior as a
m atter o f abstract justice but also about w hich should be
followed, as a m atter o f political fairness, in a com m unity
whose members have the m oral convictions his fellow citi
zens have. In some cases the tw o kinds o f judgm ent the
judgm ent o f justice and that o f fairness will come together.
I f Hercules and the public at large share the view that peo
ple are entitled to be com pensated fully whenever they are
injured by others carelessness, w ithout regard to how harsh
this requirem ent m ight turn out to be, then he w ill think
that interpretation (5) is p lainly the better o f the two in play.
But the two judgm ents w ill sometimes pull in different direc
tions. H e m ay think that interpretation (6) is better on
grounds o f abstract justice, but know that this is a radical
view not shared b y an y substantial portion o f the public and
unknown in the political and m oral rhetoric o f the times. He
m ight then decide that the story in w hich the state insists on
the view he thinks right, but against the wishes o f the people
as a whole, is a poorer story, on balance. H e w ould be prefer
ring fairness to justice in these circum stances, and that pref
erence w ould reflect a higher-order level o f his own political
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A PROVISIONAL SU M M AR Y
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Hercules Is a Fraud
T h e second objection is more sophisticated. N ow the critic
says, It is absurd to suppose that there is an y single correct
interpretation o f the em otional injury cases. Since w e have
discovered tw o interpretations o f these cases, neither o f
w hich can be preferred to the other on neutral grounds o f
fit, no ju d g e w ould be forced b y the adjudicative principle o f
integrity to accept either. Hercules has chosen one on frankly
political grounds; his choice reflects only his ow n political
m orality. H e has no choice in the circum stances but to legis
late in that w ay. Nevertheless it is fraudulent for him to
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the state to com pel him to com pensate each o f his victim s in
full. It m ight be a desirable accom m odation o f the tw o p rin
ciples for the state to require the defendant to com pensate
some victim s, or some victim s to some extent, and then m ake
up the balance o f loss to other victim s from the p ub lic trea
sury. B ut in the absence o f an y statute providing this, or an y
com m on-law tradition o f state com pensation th at m ight be
tapped, this is not an interpretive possibility. I am lim ited b y
the record I find to deciding that one o f the tw o principles
must yield in these circumstances. I f the first prevails, it is
decisive for the defendant that the loss w ould be m uch
greater for him i f full liab ility were imposed than for an y
potential p lain tiff i f it were not. If the second prevails, the
fact o f the defendants fault is decisive against him in spite o f
the m agnitude o f his potential overall loss.
It must be conceded [we are still assum ing the worst case]
that the state has thus far not spoken w ith one voice about
such cases. Some ju d icial decisions have allow ed the second
principle to prevail over the first, w hich is the solution
claim ed b y interpretation (5), and some have allow ed the
first to prevail over the second, in the w ay recom m ended b y
(6). M y interpretive situation is therefore as follows. T h e
constraints o f fit require m e to find a place in any general
interpretation o f our legal practice for both o f the m ore a b
stract principles o f sym pathy and responsibility. N o general
interpretation that denied either one w ould be plausible; in
tegrity could not be served i f either were w holly disavowed.
B ut integrity dem ands some resolution o f their com peting
im pact on accident cases when unlim ited liab ility w ould be
disastrous, a choice that our practice has not m ade but th at
m ust flow, as a postinterpretive judgm en t, from m y analysis.
Integrity dem ands this because it dem ands th at I continue
the overall story, in w hich the tw o principles have a definite
place, in the best w ay, all things considered. In m y view this
is done best b y ranking the second principle prior to the first,
at least in autom obile accident cases when liab ility insur
ance is availab le p rivately on sensible terms. I settle on this
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