Saturday, February 28, 2015

Law's Empire by Ronald Dworkin

Law as integrity denies that statements of law are either the backward-looking factual reports of conventionalism or the forward-looking instrumental programs of legal pragmatism.  It insists that legal claims are interpretative judgments and therefore combine backward- and forward-looking elements; they interpret contemporary legal practice seen as an unfolding political narrative.  So law as integrity rejects as unhelpful the ancient question whether judges find or invent law; we understand legal reasoning, it suggests, only be seeing the sense in which they do both an neither.

Law's Empire is Part IV in my multi-part series reading about legal interpretation.  See here, here, and here.  Dworkin also happens to have made a guest appearance in my review of Scalia's book.  Although the order was, more or less, random, I'm glad I read this book after having read the others.  In all important respects, Dworkin is responding to the theories of legal interpretation represented by Posner, Scalia, and Breyer.

So, a quick recap of those folks:  Scalia believes legal interpretation is a matter of finding the definitions of the words of a statute (or the Constitution) based on how those words were understood at the time of passage.  Thus, his analysis is what Dworkin would refer to as backward-looking (Dworkin stays away from the word "originalism" and instead uses the word "conventionalism," I think because he views this as the conventional view of legal interpretation).  In contrast, Breyer views legal interpretation as a kind of pragmatism---that is, judges are problem solvers.  Thus, judges should solve problems taking into account anything relevant to solving the problem before them.  Posner, who is closer to Breyer in that he is a legal pragmatist too, believes that judges should seek the "best" result, defined by what is best for society (and constrained by the extreme importance of precedent and predictability to society).

Why this long review?  Because Dworkin rejects both approaches.  He believes both conventionalism and pragmatism fail to adequately describe what judges do when interpreting a legal text.  He rejects conventionalism as being too narrowly focused (conventionalism cannot explain our equal protection or 8th amendment jurisprudence, for example).  He rejects pragmatism as producing too much discretion in judges (for Dworkin, a pragmatist judge is constrained by nothing).Instead, Dworkin proposes "law as integrity."  Under law as integrity, a judge is to resolve a legal dispute based on what is most consistent with prior interpretations.  This approach frees a judge to appreciate the way legal concepts develop, while also constraining judges by preventing them from departing too far from precedent.  For example, and because gay marriage featured so prominently in my review of Scalia's book:
The lessons of our constitutional history are clear: inclusion strengthens, rather than weakens, our most important institutions.  When we integrated our schools, education improved.  When we opened our juries to women, our democracy became more vital.  When we allowed lesbian and gay soldiers to serve openly in uniform, it enhanced unit cohesion.  when same-sex couples are married, just as when opposite-sex couples are married, they serve as models of loving commitment to all.
Latta v. Otter, (Reinhardt, J., concurring).  According to Dworkin, then, a judge looks not only to the text of a statute or provision but also to the development of a legal principle with an eye toward where that principle is going.

Doesn't he kind of look like
Saul from Breaking Bad?
I would be remiss if I did not mention the analogy Dworkin uses to describe this kind of legal analysis.  He compares legal interpretation to a novel, written one chapter at a time by different people.  Each person must continue the novel based on the chapters written by the authors before him or her.  In the same way we might criticize a person for writing a chapter inconsistent with prior chapters, we can criticize judges for writing an opinion inconsistent with precedent.  However, the analogy also works in a forward-looking way: new chapters must build on the development and progress of prior chapters.  So, too, with the law.

I find Dworkin's solution pretty compelling.  Moreso, even, than Breyer or Posner, although I think both would argue their approaches are more or less the same as his, the only difference being the words used; Breyer and Posner would probably respond to Dworkin's criticisms by saying that consistency is important to their pragmatism, and thus, Dworkin's approach creates no different results.  This may or may not be true.  I believe, though, that Dworkin's explanation of legal interpretation is more enlightening.

Seriously, though, doesn't he?
I'm not sure if there will be a Part V to this series.  When I did my Posner review, Scalia, Breyer, and Dworkin were all on my to-do list for legal interpretation.  In this regard, I've exhausted my list.  Maybe, that's it.  We should announce a Law as Integrity Day, have a parade with Legal Conventionalism and Legal Pragmatism Floats slowly self-destructing and with a giant Integrity balloon.

Probably, though, there'll be a Part V and I just don't know it yet.

1 comment:

Rushab said...

I've heard that this book fits well into that series of texts...