RONALD DWORKIN’S LAW AS INTEGRITY
Ronald Dworkin’s ‘law as integrity’ thesis is easily the locus classicus of the argument that, properly interpreted, doctrinal materials can lead us to the right answer, as a matter of law, in every case.
Dworkin’s constitutional theory is an instantiation of his conception of adjudication as essentially an interpretive function,[321] and promises a methodology where judges’ ‘own convictions about justice or wise policy are constrained in [their] overall interpretive judgment.’[322] It is important to locate Dworkin’s work in the intellectual history of liberal constitutional theory. While he may be the liberal whom critical scholars most often try to knock down,[323] he does not represent some stock position, but is attuned to the more serious shortcomings of liberal legalism. In this regard, Duncan Kennedy has described Dworkin as ‘the most legal realist’[324] of liberal thinkers. Kennedy has in mind here Dworkin’s response to what he calls the ‘liberal dilemma,’ ie how to provide a democratic justification for judicial review without lapsing into ad hoc consequentialist arguments.[325] For Kennedy, Dworkin’s work represents a significant advance in liberal legalism (over, for example, Hartian positivism) by admitting a political dimension to adjudication.[326] Dworkin is explicit that judges cannot avoid, and indeed are obliged to invoke, considerations of political theory in deciding cases. For David Dyzenhaus, Dworkin’s ‘great contribution’ to legal theory is to illuminate that ‘law is not only about setting clear goals but also about argument as to what those goals should be.’[327] Thus, Dworkin’s conception of the law-politics divide does not equate to a distinction between a closed, deductive system on one side, and political argument on the other: for Dworkin, law is argumentative.[328]Dworkin’s interest, and challenge, is that despite his agreement with important elements of the critical stance on liberal legalism and contemporary constitutional theory,[329] he sets himself firmly against the conclusion that law is hopelessly open-ended, or a bare disguise for power politics.
While he accepts, given the fact of the political dimension of constitutional interpretation, that ‘we should expect to find distinctly liberal or radical or conservative opinions [and] this is exactly what we do find,’[330] he also believes that to the extent law is incoherent, this is because of human failure.[331] The major part of his work deals with how coherence can be restored. Thus, while his law-politics divide is not as formal as some versions of liberal legalism, this divide nonetheless remains in place, and although law is seen as argumentative, only a small class of political argument is capable of crossing over to become legal argument.[332] Accordingly, although constitutional adjudication necessarily involves judges making political choices, he believes he can show which political choices are demanded by the constitution. Thus, the criterion of success which Dworkin sets himself is that if judges follow his theory in constitutional cases, they will purge doctrine of internal legal pluralism.Law as Integrity and Dworkin’s Constitutional Theory
The key to Dworkin’s constitutional theory is his account of law as integrity. The basis of this is the ‘adjudicative principle of integrity’ which requires judges to regard law as written by a single author, here ‘the community personified,’ and which expresses ‘a coherent conception of justice and fairness.’[333] In practical terms, this imposes the twin test of ‘fit and justification’[334] on judges deciding legal controversies:
[Integrity] insists that the law—the rights and duties that flow from past collective decisions and for that reason license or require coercion—contains not only the narrow explicit content of these decisions but also, more broadly, the scheme of principles necessary to justify them.[335]
The requirement of fit, which connects Dworkin to an earlier, more formalist liberal legalism, may be sufficient to dispose of the instant case; however, what distinguishes his own version is the recognition that where there are two or more plausible interpretations, the judge’s ‘own moral and political convictions are now directly engaged.’[336] However, he or she is not able to choose freely from those convictions, but has to decide which interpretation shows the community’s standards, from the perspective of political morality, in the best possible light.[337] Here, the role of principles is crucial:
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 the fresh cases that come before them, so that each person’s situation is fair and just according to the same standards.[338]
Thus, principles are the means whereby adjudication performs its interpretive function: they crystallise the best justification of past decisions, and are the resources judges employ in ensuring coherence within the narrative of law.
In this way, Dworkin asserts that law as integrity can provide the ‘right answer’ in every case: accordingly, he rejects the need to respond to the traditional liberal legalist dilemma of whether judges invent or find the law—for him, we can only understand legal reasoning ‘by seeing the sense in which they do both and neither.’[339]Dworkin’s constitutional theory fits within his law as integrity thesis, and posits three practical considerations for deciding constitutional cases. First, here, more so than any area of law, judges must acknowledge its interpretive character, which cannot be satisfied by retreating to the false certainties of historicism or passivism, as the ‘question of law... is inescapable.’[340] Secondly, judicial political judgments are equally unavoidable; however, these are not unconstrained choices as constitutional theory ‘must fit and justify the most basic arrangements of political power in the community.’[341] Thirdly, Dworkin’s reading of these arrangements inserts a metaprinciple of equality into the
process. This combines the priority of the egalitarian principle, which instructs the government to treat everyone ‘with equal care and concern,’[342] and the policy-principle distinction, which establishes rights as trumps in the realm of principle over how far the legislature can pursue collective policies for the general welfare. This does not impose some specific notion of equality, for example utilitarian or libertarian, on legislatures when they make policy, but instead requires that they respect ‘some plausible conception of equality’[343] which means they must recognise certain rights as circumscribing their policy deliberations.
Thus, for Dworkin the ‘crucial interpretive question’[344] is what rights legislatures must respect. He discusses the US Supreme Court’s Fourteenth Amendment jurisprudence to show how his method will lead Hercules, his judicial alter ego, to the right answer in constitutional cases. Starting from the premise that the constitution guarantees a right against official racial discrimination, he outlines three possible justifications of this right which will aid Hercules in mapping its precise contours.
These are: the suspect classifications approach, which views racial prejudice as a special case of the requirement not to treat people differently on some irrational basis; the banned categories approach, which prevents any governmental reliance on racial grounds; and the banned sources approach, which rules out collective decisions which are motivated by prejudice against a particular group.[345] By applying the tests of fit and justification, Hercules can establish which is the best theory of the constitution, and so provide us with the principled basis for prospective adjudication.Dworkin asks how Hercules would decide and justify the Warren Court’s seminal decision in Brown.[346] He dismisses the suspect classifications approach because the idea that no special consideration be given to the racially motivated nature of some citizens’ preferences no longer reflected Americans’ conceptions of racial justice.[347] Dworkin emphasises that his is not an abstract rule-based theory, but a dynamic one which can adapt to changing societal attitudes by endorsing either the banned categories or banned sources approach as ‘consistent, in 1954, with ethical attitudes that were widespread in the community.’[348] It is not necessary for Hercules to choose between the two to decide Brown; however, it is now clear that the constitutional duty to treat everyone with equal care and concern at least requires a heightened scrutiny of historically rooted forms of discrimination.
Which theory best reflects constitutional practice and structure is elaborated in Dworkin’s discussion of the Supreme Court’s decision in Bakke.[349] The issue is crystallised here as UC-Davis Medical School’s refusal of a place to Alan Bakke, to which he would have been entitled had he not been white, would certainly fall foul of the banned categories approach, which outlaws any differential treatment on racial grounds; however, this is not necessarily the case under the banned sources approach, where the scheme would be permissible provided it did not covertly discriminate against some other group.[350] While the former approach may fit better with previous decisions, it can only embody a principle against discrimination on account of innate characteristics, which he finds US practice to have firmly rejected.[351] However, for Dworkin, racial discrimination is unjust ‘not because people cannot choose their race, but because that discrimination expresses prejudice.’[352] Thus, Hercules would decide Bakke employing the banned sources approach as the best available interpretation: on this basis, affirmative action schemes are valid, provided they do not disadvantage groups which have been systematically discriminated against in the past.[353] Bakke’s argument that he has been unconstitutionally discriminated against on the grounds of his race is therefore rejected.
Problems with Implementing Law as Integrity
How would judges who wish to be true to law as integrity apply Dworkin’s theory in constitutional adjudication? Let us return to the issue of affirmative action, and assume that the banned sources approach is the best account of the constitution. Dworkin claims that if judges adopt this approach, this will restore constitutional jurisprudence to its proper state of integrity as judgments conform to the principle enumerated in Bakke. It seems reasonable to assume that Hercules would regard much of the Rehnquist Court’s decisions, such as Croson[354] and Adarand,[355] as falling short of integrity, by invoking the ‘colorblind’ approach which makes any form of racial categorisation constitutionally suspect. However, it is possible to reconcile Dworkinian reasoning with these results. First, we have to bear in mind the dynamic nature of law as integrity, such that the list of historically prejudiced groups is ‘open to revision as social patterns change.’[356] Thus, a judge, trying to be faithful to Hercules’s rendition of Bakke, would ask: ‘does this case involve a group which has been historically subject to discrimination?’ A rationalisation of decisions like Adarand could be: ‘affirmative action was necessary to reverse deep-seated patterns of official discrimination; however, formal equality of blacks before the law has now been achieved, therefore there is no longer any need for special measures advantaging that group.’[357] We may disagree strongly over that judge’s reading of the record: but it may be unfair to say that that judge is not faithfully elaborating the practical implications of the constitutional protection of equal concern and respect. Rather, we might conclude that law as integrity, by itself, says nothing to that judge as to how he or she should decide when equality has been achieved, or what period thereafter should elapse, so that we may ‘declassify’ the suspect nature of some categorisations, or at a more fundamental level, how we would measure the achievement of equality.
Absent race as a suspect classification, the banned sources approach becomes redundant, and affirmative action would likely be decided simply according to the principle that ‘discrimination expresses prejudice.’[358] However, as Dworkin himself recognises, it is possible to construct a constitutional argument against affirmative action within the former approach. On this account, there is a general requirement for governments to take into account all citizens’ interests, which they violate ‘whenever [they ignore] the welfare of some group in [their] calculation of what makes the community as a whole better off.’[359] For example, in Bakke, it could be argued that the quota system failed to meet this requirement as it was unable to address its impact upon people in the plaintiff’s position.[360] In fact, a mirror of this form of argument—that the general welfare can outweigh attempts to overcome historical prejudice—seems the best characterisation of the Rehnquist Court’s approach, which does not say that affirmative action is never constitutional, but that, applying strict scrutiny, it can only pass muster if it is ‘narrowly tailored’ to further ‘compelling governmental interests’[361] so as not to impinge on the general requirements of equal treatment. The task, therefore, for law as integrity, is to show judges when the general requirement should displace the special right. However, we must doubt whether it can with any degree of specificity: although Dworkin thinks that Hercules would repel Bakke’s more general argument, he nonetheless concedes that ‘reasonable judges might disagree with that part of his overall conclusion.’45 Accordingly, law as integrity will not deliver us from finding ‘distinctly liberal or radical or conservative opinions’—we should expect as many different types of decisions as there are reasonable disagreements over affirmative action.