Legal

Interpretation: Law as Integrity

(Class #8)

Readings
Legal Interpretation
Class #8 (W 9/28)
Dworkin, Integrity in Law [158-174]
Class #9 (M 10/3)
Scalia, Common-Law Courts in a Civil-Law System [175-184]
Dworkin, Comment [185-190]
Scalia, Response to Dworkin [190-193]
Class #10 (W 10/5)
Lawrence v. Texas (SCt) [Canvas]
Midterm Paper Assignment distributed

claims of law are endemically

constructive

(1986)

The Role of Precedent in Adjudication

RD rejects the 3 most common (& conflicting) views
formalism the mechanism of the older law is law view - the judge simply finds the
law the backward-looking factual reports of conventionalism
e.g., the dissenting judge in Riggs v. Palmer: we are bound by the rigid rules of law,
which have been established by the legislature, and within the limits of which the
determination of this question is confined
realism the cynicism of the newer realism the judge invents law the forwardlooking instrumental programs of legal pragmatism
originalism the judge should aim to recapturethe ideals or practical purposes of the
politicians who first created [the law]

Law as Integrity
Law as integrity [maintains] that the grounds of law lie in integrity
in the best constructive interpretation of past legal decisions
best from the standpoint of political morality as whole
so 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 communitys legal practice
i.e., the law is an unfolding political narrative

The Chain Novel

The Chain of Law

a judge deciding a common law case [should] think of himself as an author in the chain
of common law
he knows that other judges have decided cases that deal with related problems
he must think of their decisions as part of a long story he must interpret and then
continue, according to his own judgment of how to make the developing story as good as
it can be
a judge deciding [a case] adds to the tradition he interprets; future judges confront a new
tradition that includes what he has done

The Two Dimensions of Law as Integrity

there are two main dimensions to the courts interpretive judgment fit &
justification

the judges decision must be drawn from an interpretation that both fits and justifies
what has gone before, so far as that is possible

Fit
a court deciding a case must try to find some coherent theory about the legal rights
and duties at issue in the case before it
i.e. an interpretation that explains, and accounts for, and makes sense of, and is
consistent with, all prior precedent to the extent possible
i.e. a set of principles that fits the prior decisions dealing with related facts and
issues
and remember - the court must proceed on the assumption that the relevant prior
decisions all were created by a single author
so ideally the court will construct a theory such that a single political official with that
theory could have reached most of the results the precedents report

Justification
there may well be more than one plausible interpretation
i.e. -- several competing interpretations may fit the previous precedents
so the court must test the various candidate theories against the 2d dimension of law
as integrity: justification
the court must judge which of these eligible readings makes the work in progress best
but- best as judged by what standard?
the interpretation [that] shows the legal record to be the best it can be from the
standpoint of substantive political morality

Political Morality
the two constituent virtues of political morality are justice and fairness
these 2 political ideals underlie the fundamental purpose of the law
so what is the law? it contains not only the narrow explicit content of [previous]
decisions but also, more broadly, the scheme of principles necessary to justify them
accordingly - law as integrity asks judges to assume, so far as this is possible, that the law
is structured by a coherent set of principles about justice and fairness and procedural due
process, and it asks them to enforce these in fresh cases that come before them, so that
each persons situation is fair and just according to the same standards
naturally -- judges may well have different views about these 2 political ideals and weigh
them differently
e.g., the Riggs case: majority vs. dissent

Integrity
integrity itself is a political ideal
we accept it as an ideal because we want to treat our political community as one of
principle
and --- the citizens of a community of principle do not aim simply at uniform common
principles
instead they aim at the best common principles politics can find
integrity makes no sense except among people who want fairness and justice

Justification: Courts vs. Legislatures

a legislature enacts statutes that explicitly create new rights & duties for the future
it may justify its decision to do so on grounds of policy by showing how these new
rights and duties will contribute to the welfare of the community a whole
but -- a court is not free to justify its decisions in the same way
instead -- judges must justify their decisions on grounds of principle, not policy
i.e. they must deploy arguments why the parties actually had the novel legal rights &
duties they enforce at the time the parties actedin the past
i.e., a court must construct an interpretation that lets it recognize rights & duties that
no previous court explicitly recognized e.g., Riggs, Obergefell