Philosophy and the Law - How Judges Reason (Booklet).pdf

7/28/2019 Philosophy and the Law - How Judges Reason (Booklet).pdf

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Professor Stephen MathisWHEATON COLLEGE

PHILOSOPHY

AND THE LAW:HOW JUDGES REASON

COURSE GUIDE


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Philosophy and the Law:How Judges Reason

Professor Stephen Mathis

Wheaton College

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Philosophy and the Law:

How Judges Reason

Professor Stephen Mathis

Executive Producer

John J. Alexander

Executive Editor

Donna F. Carnahan

RECORDING

Producer - David Markowitz

Director - Matthew Cavnar

COURSE GUIDE

Editor - James Gallagher

Design - Edward White

Lecture content 2008 by Stephen Mathis

Course guide 2008 by Recorded Books, LLC

72008 by Recorded Books, LLC

Cover image Christian Hesse/shutterstock.com

#UT120 ISBN: 978-1-4361-2909-1

All beliefs and opinions expressed in this audio/video program and accompanying course guide

are those of the author and not of Recorded Books, LLC, or its employees.


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Course Syllabus

Philosophy and the Law:

How Judges Reason

About Your Professor...................................................................................................4

Introduction...................................................................................................................5

Lecture 1 Legal Realism ........................................................................................6

Lecture 2 Legal Positivism, Part I ..........................................................................9

Lecture 3 Legal Positivism, Part II .......................................................................12

Lecture 4 Theoretical Disagreement in Law ........................................................15

Lecture 5 Theories of Interpretation ....................................................................19

Lecture 6 Legal Conservatism .............................................................................23

Lecture 7 Judicial Activism ..................................................................................26

Lecture 8 Law as Integrity ...................................................................................29

Lecture 9 Common Law and Statutes .................................................................32

Lecture 10 Constitutional Law ...............................................................................36

Lecture 11 Dualist Democracy...............................................................................40

Lecture 12 Regime Perspective.............................................................................44

Lecture 13 Interpretive Synthesis ..........................................................................48

Lecture 14 Judicial Politics versus Interpretation ..................................................52

Course Materials ........................................................................................................56

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4

About Your Professor

Stephen Mathis

Stephen Mathis is an associate professor and chairman of the Philosophy

Department at Wheaton College. He teaches a variety of courses in legal phi-

losophy as well as in social/political philosophy. Professor Mathis is also the

co-coordinator of the Legal Studies Minor and Pre-Law Advisor. His primary

research interest is the philosophy of criminal law, but he has also written on

topics in political philosophy, moral theory, and ethics. In his spare time,

Professor Mathis follows politics and the Supreme Court very closely and has

authored op-ed pieces on constitutional law issues.

The following books provide an excellent supplement to the lectures

found in this course:

Ackerman, Bruce. We the People: Foundations. Cambridge, MA: Belknap

Press, 1993.

Dworkin, Ronald. Laws Empire. New ed. Oxford: Hart Publishing, 2003.

PhotocourtesyofStephenMathis


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Introduction

Do judges deduce their decisions from legal rules and principles, or do they

decide cases based on what is fair given the facts at hand? The latter view,

held by Legal Realists, serves as the starting point for Professor Stephen

Mathiss eye-opening look at how judges reason. In this compelling lecture

series, the esteemed professor addresses such issues as whether the law is

distinct from morality. Professor Mathis also attempts to identify a view that

offers guidance to judges in deciding cases, and one that will provide the

tools people need to evaluate the interpretations and decisions judges make.

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We begin this course with Legal Realism because it marks one of the ear-

liest attempts at taking a philosophical approach to American

Jurisprudence. A response to Legal Formalism (the view that judges can

and do logically deduce decisions from applying legal principles to the

facts of the case), Legal Realism focuses instead on how things are done in

the actual practice of law. Almost all of the Legal Realists were jurists andlegal practitioners, and not academic philosophers. Perhaps for this reason,

Legal Realists drew more from sociological approaches than philosophical

ones. However, their attention to empirical claims about how judges actually

decide cases (and not about how judges should decide cases) led later

philosophers of law to discount Legal Realism as a deeply flawed approach

to jurisprudence.

Legal Realism, especially as we see it embodied in the work of Oliver

Wendell Holmes and Jerome Frank, offers a startling account of what law is:

it is, fundamentally, a matter of predicting how judges will actually decidecases. This account is startling because at first blush it seems to suggest

that prior court decisions, statutes, and legal principles are all less important

than the judges particular leanings (or than what the judge had for break-

fast1). If true, the Realist view of the law would be a deeply skeptical view,

holding that the process of adjudication is nothing more than an elaborate

sham, with all sorts of window dressing for what is essentially the judges

subjective preference.

While Legal Realism does espouse a degree of skepticism about the law

and especially about adjudication, it is unfair to see it as coming down just towhat the judge had for breakfast. It is important to keep in mind that most

Legal Realists were concerned with the law primarily from the perspective of

a lawyer, not that of a judge, a Supreme Court Justice, or a philosopher.

(Holmes also uses this lawyerly point of view to drive a distinction between

morality and law: he argues that the law and morality are likely to overlap for

the good man [or client], but all that matters to the bad man is the law.)

Treated as an empirical claim about the lawyers role with respect to her

client, saying that the law is essentially a matter of predicting how judges will

decide cases seems far less objectionable. After all, a judge is a humanbeing who has biases and idiosyncracies, some of which can lead him away

from or to hold a skewed view of particular legal rules, precedents, and princi-

ples. But Legal Realists do not believe that the law is about prediction just

LECTUREONE

The Suggested Readings for this lecture are Jerome Franks Legal

Realism in Joel Feinberg and Hyman Gross (eds.) Philosophy of Law

and Oliver Wendell Holmess The Path of the Law.

Lecture 1:

Legal Realism

6

1. Realists have long been saddled with claiming that what the judge had for breakfast is the deter-

mining factor in judicial decisions. However, no Realist actually ever made such a claim. See Brian

Leiter, Legal Realism and Legal Positivism Reconsidered, Ethics, 111:2 (2001), p. 281.


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because some judges have prejudices or foibles: Realists also do not believe

that the various legal rules and reasons that bear on a given case actually

justify or require one particular right way of deciding that case. In other

words, Legal Realism holds that the law is indeterminate or undetermined by

the legal rules and reasons available to judges. It is in this way that Realism

is skeptical about law. In the end, this skepticism leads Realists to see judgesplaying a key role in determining the law, which in turn leads Realists to dis-

cuss the law in terms of predicting outcomes.

Legal Realists hold that most judges do not deduce their decisions from

legal rules or principles, but rather they decide cases based on their view of

what is fair given the facts at hand. This is not to say that judges ignore

statutes or other legal rules or principles, but rather only that different judges

will inevitably interpret or weigh legal rules and reasons in different ways,

and theres nothing in the law that prevents them from doing so. It is also to

say, however, that judges sometimes decide cases based on extralegaljudgments about what is fair or just, and then they use legal rules and rea-

sons to justify those decisions after the fact.

Overall, Legal Realism is best understood as a sociological or descriptive

theory of law and adjudication in that it tells us what law

is and how judges actually do decide cases. Legal

Realism fails, however, to offer a normative or pre-

scriptive theory of law or adjudication, or a theory of

what the law should be or how judges ought to

decide cases. Even though in reality judges may typi-cally decide cases according to what they think is fair

given the facts of the case, that tells us nothing about

whether or not it is right or even acceptable for

them to do so. And while Legal Realism recog-

nizes a range of possible interpretations of

existing legal rules and principles (that con-

tribute to laws indeterminacy), it offers no way

to evaluate interpretations as within that range

or unacceptably out there. In fact, LegalRealism offers no means at all of evaluating

judges decisions and thus can say nothing at

all about how a judge should decide a partic-

ular kind of case or about why a particular

decision may or may not be justified. While

Legal Realism has interesting things to say

about the actual practice of the law and the

way judges decide cases, philosophers of law

(not to mention judges) need more from ajurisprudential theory: we need a view that

will offer some guidance to judges in deciding

cases and one that will give us the tools we

need to evaluate, among other things, the

interpretations and decisions judges make.

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1. Why is Legal Realism a good starting point for a course focused on how

judges reason?

2. From what perspective were most Legal Realists concerned with the law?

Frank, Jerome. Legal Realism. Philosophy of Law. 8th ed. Pp. 125127.

Eds. Joel Feinberg and Hyman Gross. Belmont, WA: Wadsworth

Publishing Company, 2007.

Holmes, Oliver Wendell. The Path of the Law. Vol. 10. Harvard Law

Review, p. 457, 1897.

Frank, Jerome. Law and the Modern Mind. Reprint. Piscataway, NJ:Transaction Publishers, 2008.

Holmes, Oliver Wendell. The Common Law. New York: Dover

Publications, 1991.

Leiter, Brian. American Legal Realism. The Blackwell Guide to Philosophy

of Law and Legal Theory. Pp. 5066. Eds. W. Edmundson and M. Golding.

Oxford: Blackwell, 2003.

Oliver Wendell Holmess The Common Law and a book form of The Path of

the Law are also available online from Project Gutenberg

www.gutenberg.org

Questions

Suggested Reading

FOR GREATER UNDERSTANDING

Other Books of Interest

Websites to Visit

LECTUREONE

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The Suggested Reading for this lecture is H.L.A. Harts The Concept

of Law, chapter V, Law as the Union of Primary and Secondary Rules,

pp. 7999.

Lecture 2:

Legal Positivism, Part I

9

Legal Positivism traces its roots back to the famous utilitarian Jeremy

Bentham (17481832). Though Bentham wrote extensively in political phi-

losophy, it was his star pupil, John Austin (17901859), who refined and

codified many of his views on jurisprudence. Austins work helped launch

an approach to the philosophy of law we now call Analytical Jurisprudence,

because of its focus on analyzing and trying to define the concept of law.

1

The definitions of law Austin and his most influential successors offered all

described law in terms of its roots in social practice. These philosophers were

most concerned with law as it is posited (that is, as it is constructed or prac-

ticed, or perhaps even as it is put into place), and not with law as it would be

best justified in moral terms; thus the label Legal Positivism.

In his The Providence of Jurisprudence Determined (1831), Austin seeks out

the essential features of law, and in particular tries to distinguish law from

other things that might be confused with that concept. Austin defines law as

commands, backed by threat of sanctions, from a sovereign, to whom peoplehave a habit of obedience. Austins key insight here is that law has a peculiar

kind of force, a force we cannot ignore, as we can ignore mere expressions of

wishes, especially from those with no power to make us want to fulfill those

wishes. This force, which obliges us to act, is to be distinguished from reward

or being provided positive incentive to act, since a reward may not move one

to actand if it doesnt so move one, one is

made no worse off. The threat of pain, under-

stood as punishment or fines, has the force

Austin has in mind here. For Austin, law is alsogeneral in its scope: it applies to types of

actions, not to one isolated act on one particular

occasion. Thus, a sovereign (whether a king or

a legislature or other legitimate authority) com-

mand that Joe Smith wear blue pants on the

fourth of October this year would not be a law,

while a command that everyone wear blue

pants on the fourth of October each year could

be. The requirement of the peoples habitual

obedience can be said to capture this consider-

ation (since one cannot be in the habit of obey-

ing terribly specific, one-time commands). But

more importantly, the stipulation that people

1. This focus is to be contrasted with Normative Jurisprudence, which centers on the law as it

should be.

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LECTURETWO

10

must habitually obey a command in order for it to be properly called a law

underlines the significance of law as a socially accepted norm.

H.L.A. Hart criticizes Austins view as overly simplistic, but retained his posi-

tivist approach to defining law. In The Concept of Law (1961), Hart argues law

should be understood as a system of what he calls primary and secondary

rules. Primary rules are rules that either require or prohibit some sort of behav-ior in general terms, though not necessarily on pains of punishment, because

Hart recognized that while Austins characterization of law as commands

backed by the threat of punishment applied well to most criminal statutes, it

hardly seemed to apply at all to most civil law. The law of contracts provides

the clearest counterexample to Austins view and an argument for something

more like Harts view, since contract law does not command anything on pain

of punishment, but rather facilitates various arrangements and relationships,

almost all of which are completely voluntary. Secondary rules, by contrast, are

rules that create, repeal, or otherwise regulate the use of primary rules. Hartidentifies three categories of secondary rules: rules of change, which allow

laws to be repealed or modified; rules of adjudication, which address conflicts

between rules and other aspects of administering rules; and the rule of recog-

nition, which validates primary rules as valid instances of law. Though some

secondary rules are spelled

out rather explicitly (as a

constitution, perhaps the

most common form of a

rule of recognition, wouldbe), for Hart all of them

need not be: secondary

rules can be found among

the customary practices of

courts and of legal argu-

mentation, for example.

Hart also criticizes and refines Austins view of the special kind of force law

must have. While Austin sees the threat of punishment that compels individu-

als to obey as essential to law, Hart believes that law obligates people in adeeper way. On Harts view, the law achieves a high level of social accep-

tance, high enough that people regularly internalize the duties laid out in the

law and obligate themselves to uphold it. In this way, Hart sees the force law

carries with it as much more social and more deeply obligating than it is on

Austins view. In fact, Hart suggests that Austins view could lead us to say

that a gunman robbing another individual makes law by commanding his

assailant to hand over his wallet at gunpoint. One would have to stipulate that

the people are in the habit of obeying gunmen in order to argue that Austins

definition entails that the gunman is making law by holding up another per-son, but since so stipulating does not seem like much of a stretch, it seems

that Austins view could be saddled with this absurd consequent. Hart argues

that Austins view conflates obliging and obligating, and he thinks the gunman

does the former and the law does the latter.

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1. What is the relationship between peoples habitual obedience and the law?

2. What are primary and secondary rules?

Hart, H.L.A. The Concept of Law. 2nd ed. Oxford: Oxford UniversityPress, 1997.

Austin, John. The Providence of Jurisprudence Determined. New ed.

Lecture I, pp. 1837; Lecture VI, pp. 164293. Cambridge: Cambridge

University Press, 1995.

Waluchow, W.J. Inclusive Legal Positivism. Oxford: Clarendon Press, 1994.

Questions

Suggested Reading



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The Suggested Reading for this lecture is H.L.A. Harts Positivism andthe Separation of Law and Morals, Harvard Law Review, vol. 71, p. 593.

Lecture 3:

Legal Positivism, Part II

LECTURETHREE

12

Like the Legal Realists, Legal Positivists recognize that law is distinct from

morality: in fact, neither Austins model of law as commands backed by

sanctions nor Harts model of law as a system of primary and secondary

rules makes any reference to law as morally right, justified, or anything of

the sort. Positivism focuses almost exclusively on the laws form and pedi-

gree and little on evaluating its contentif it does so at all. This is not to say,however, that Positivists take the law to have no moral character whatsoever

either way. Rather they take the question of how just a particular law within a

system is as a separate issue: whether or not this rule or that command can

be properly called law plays no part in determinations of its moral value, and

vice versa. In this way, Legal Positivism can be seen as a direct refutation of

Natural Law, the view that the law legislatures create and judges enforce

should closely track the laws of an external moral order.1

Austin and Hart both reject the view that one can establish whether or not a

law is valid (or properly understood as law) by appeal to such external stan-dards as Gods law or the moral law or even the law of Reason. Hart goes

even further, however, and argues that if one wants to understand fully what

the law is, one must take a perspective internal to the practice of the law. One

obvious benefit of this approach is that it coincides more with the perspective

judges take in deciding cases. But this argument brings to light a deeper,

more important point: that judges are concerned with operating within the legal

practice, and doing that entails analyzing whether or not the appropriate (legal)

criteria have been met to say whether one decision or another is the law; it

does not allow one to make broader moral evaluations of laws and particulardecisions, because to do so would require one to step outside of the practice

of law. In other words, the standards for legal validity are internal to the law,

while standards of justice and morality are external to the law, and judges and

lawyers are in the business of figuring out what the law is, and the appropriate

perspective for them is internal to the practice. The biggest upshot of this

argument is that if Positivism is correct, then judges and lawyers are not in a

position as legal practitioners to say anything about the moral validity of the

law or a particular law; they are uniquely positioned, however, to speak direct-

ly to questions of legal validity. In the end, this is why Positivism views what

the law is and whether or not it is just as separate questions.

1. Though I will discuss Natural Law theory in more detail in later lectures, I should note here that

Natural Law theorists vary on the source and character of that external moral order, with some

appealing to religion and others to various different secular conceptions of morality. Natural Law

theory is also famously associated with the claim, an unjust law is no law at all, but it is far

from reducible to this claim.


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This is not to say, however, that Hart thinks law and morality could have no

connection whatsoever. Hart argues that we may very well have a moral oblig-

ation to refuse to obey certain unjust laws: this claim allows for laws to be

unjust (and still be properly called laws), but identifies a point at which the

moral problems with following them force us to step outside of the internal per-

spective and refuse to obey. Also, if a system of rules fails to meet minimalmoral requirements (being sufficiently general in scope, treating like cases

alike, basic impartiality, and so forth), then that system may fail to be a legal

system in any proper sense of that term. As such, a certain kind of procedur-

al morality is present in any proper legal system, even if certain particular

laws are unjust or morally questionable.

Finally, there is a third, more fundamental way in which morality plays a role

in Harts understanding of law. In most cases, where law has been clearly

posited, judges will make decisions by applying the appropriate legal criteria in

the way I alluded to above. But in cases in which the law is not clearly posited,where it looks like (and where the Realists would say) the law has run-out,

judges must do something different, because in such cases there is no clear

positive law to appeal to as they make their decisions. Such cases deal with

problems of the penumbra, meaning that surrounding many, if not all, legal

rules is a shadowy area or penumbra from which judges cannot logically

deduce answers (or mechanically apply the rules to the facts) because in that

penumbra, the application of the rule is unclear. Realists seem to recognize

something like penumbral areas as well, though Realists argue that when

judges find themselves in such areas in the law, they basically fill in the gap byappealing to what they think is most fair in that particular case. But against the

Realists, Hart argues that when judges decide penumbral cases, they should

look at social aims, purposes, and policies, and that these serve as another

level of legal sources (though admittedly less clear and more abstract than, for

example, statutes on the books). These social aims, purposes, and policies

judges take into consideration in penumbral cases have some moral content,

though that content is arguably still internal to the legalor at least social

system, and that such consideration of aims and purposes does allow for

some blurring of the line between law as it is and law as it should be. Because

Hart includes this last set of moral considerations (social aims, purposes, and

policies) in his view of appropriate legal sources, some have termed his view

Inclusive or Soft Positivism. Views that reject such social considerations, then,

are often called Exclusive or Hard Positivism.

Janice Tuttle/shutterstock.com


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1. How can Legal Positivism be seen as a direct refutation of Natural Law?

2. In terms of the law, what are problems of penumbra?

Hart, H.L.A. Positivism and the Separation of Law and Morals. HarvardLaw Review. Vol. 71, p. 593, Cambridge, MA: Harvard Law Review

Association, 1958.

Fuller, Lon L. The Morality of Law. Rev. ed. New Haven, CT: Yale University

Press, 1969.

Hart, H.L.A. Law, Liberty, and Morality. Oxford: Oxford University Press, 1963.

Questions

Suggested Reading



LECTURETHREE

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Ronald Dworkins Laws Empire (1986) is one of the more influential

works in jurisprudence to come along in the last forty years. Dworkin was

H.L.A. Harts star pupil at Oxford University, and in Laws Empire he takes

his mentor to task for his Positivist views. Though Dworkin is not entirely

fair to Hart and the Positivists, he does offer something Hart never did: a

detailed philosophical account of judicial interpretation. Since Laws Empireincludes analysis of most of the popular approaches to judicial interpretation

along with powerful arguments for his own theory of adjudication, I will spend

much of the next five lectures (and this one) looking at various aspects of this

very important work.1

Early in Laws Empire, Dworkin attacks the widely held view that judges

should merely follow the law as it is written rather than seek to improve it.

The problem is that this view presents us with a false dichotomy: it suggests

that the only options a judge has are to discover the law or to invent it,

when in fact judges regularly engage in a third option, engaging in theoreticaldisagreement about law. Its important to see that real theoretical disagree-

ment about law is possible, and once we do, then we can develop a theory of

how judges work their way through such disagreements to decide the cases

before them.

Toward this end, we can identify three general types of issues that judges

and lawyers regularly face: issues of fact, issues of law, and issues of politi-

cal morality or fidelity.2 Issues of fact are quite uncontroversial and easy to

handle, and issues of political morality or fidelity are quite commonplace in

courtrooms, but the interesting issues are issues of law.3 Still, some issues oflaw are more interesting than others: empirical disagreements about what

the law is (or arguments about what the text of a law is) hold little interest for

judges or philosophers (because as often as not, they can just go look it up),

while theoretical disagreements about what the law is or what the proper

grounds of law are tend to occupy much more of their time and energy. It is

The Suggested Reading for this lecture is Ronald Dworkins LawsEmpire, chapter 1, What Is Law?

Lecture 4:

Theoretical Disagreement in Law

1. And it is for these same reasons that I chose Laws Empire as a central text for this course.

2. Issues of political morality and fidelity have to do with differing views of what our political system

requires of the law or of what it means to be faithful to the law in a given case. For example,when a lawyer argues that it would be wrong to sentence his defendant in these circumstances

to the more severe punishment allowed within sentencing guidelines, or when a lawyer argues

that it does not serve the laws purposes to hold his client liable for damages in a given case.

3. Dworkin also refers to fidelity issues as ones relating to whether or not a judge should follow the

law in a given case. He claims, judges rarely consider whether they should follow the law once

they have settled what it really is (pp. 56). As such, he does not see the widely held view that

judges should follow the law rather than invent it as a view about fidelity, but rather as a heavily

disguised example of theoretical disagreement about law.


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LECTUREFOUR

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important to note here that theoretical disagreement involves competing pre-

scriptive claims, while empirical disagreement involves merely descriptive

claims, at least one of which will turn out to be wrong. Dworkin argues for a

prescriptive approach, one focused on theoretical disagreement, by pointing

out that legal practice is fundamentally argumentative. One can understand

this argumentative feature of legal practice either by taking an external pointof viewthe point of view of a historian or sociologistor an internal one

the point of view of a legal practitioner. The first will, at best, tell us what

kinds of claims legal professionals will make in specific situations, while the

second will be able to provide arguments for why they will make those claims

(or why those claims are better than others). Naturally, we should prefer the

second type of approachthe internal, prescriptive approachbecause this

is the approach judges and lawyers take and because to a judge, a descrip-

tive approach, even one that predicts how judges will decide cases, will not

do enough to tell us why a decision should go one way or another (instead, it

would only tell us that a decision would go one way or another). In this way,

this approach explicitly rejects Legal Realism, and it does so for the same

reasons I did at the end of my first lecture.

But we can also distinguish this approach from Legal Positivism. One way to

do this is by understanding Positivism as a sophisticated version of the view

that the law is what legal institutions have already decided it is. In other

words, if legal institutions have posited something as law, then it is lawand

ideas of what the law should be play no part in the process. Since Legal

Positivism concerns itself with the criteria that must be met for something tobe considered law, the argument goes, it is best understood as a semantic

theory of law, or a theory focused on defining the term law. A key feature of

Positivism is the fact that society must accept the criteria laid out for some-

thing to become lawotherwise, it would not be law as far as the Positivists

are concerned. Having already cast Positivism as a semantic theory,

Dworkin extrapolates from this key feature to claim that Positivism is further

committed to the view that everyone already agrees to the criteria for law.

The idea is that if everyone did not agree on the criteria, then it would be diffi-

cult, if not impossible, to judge whether or not law was properly posited, and

Positivism would seem to have difficulty getting off the ground at all. Dworkin

uses this move to blast the Positivists, saying that if everyone already agrees

to the criteria, then what the law is has already been decided, so the only dis-

agreements possible within Positivism are empirical ones.

In response, Hart explicitly denied that his view is a semantic view of law,

and said that the only aspect of law everyone had agreed to on his view is

the general criteria for law; people dont need to agree about how the law

must be applied in every specific case. In this way, his view allows for theo-

retical disagreement about how the law should be applied in some cases. Inthis sense, at least, Dworkins attack on Harts view seems to be unfair.

Nonetheless, Dworkin does have one argument against Positivism that not

only appears to be fair, but also damaging. Since Positivism requires that

everyone agree to the criteria for law in advance, it seems that the Positivist

view of adjudication is focused on cases in the penumbraborderline

casesbecause once the law is posited, its set, and we can only disagree


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17

about specific applications of it. Dworkins argument is that very few cases

are borderline cases, and those that are turn out to be rather uninteresting.

The more interesting cases are pivotal cases, cases in which the decision will

affect the future direction of the law (or at least a big part of it). I think theres

something to the claim that Positivism does not and cannot account for piv-

otal cases, only borderline ones, but not because Positivism is a semanticview of law; rather, its because the Positivists were much more worried

about defining what law is than looking carefully at adju-

dicating hard cases. As such, Dworkin seems right to

argue that Positivism neglects a large and very

important part of the law.

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1. What follows from the realization that theoretical disagreement about law

is possible?

2. Why did Dworkin say that the only disagreements possible within

Positivism are empirical ones?


Dworkin, Ronald. Taking Rights Seriously. Cambridge, MA: Harvard University

Press, 1978.

Questions

Suggested Reading



LECTUREFOUR

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One of the knocks against semantic theories of law (theories that focus

on the criteria something must meet in order to count as law) is that

the only way semantic theorists can disagree about the law is to have

an empirical disagreement. The reason they cant disagree in any other

waylike about what the criteria for law areis because as soon as two

semantic theorists disagree about the criteria for law, they necessarilydefine law in different ways. So even though they appear to disagree about

law, they are not really talking about the same thing, but instead are talking

past one another. Such disagreement would be like two people disagree-

ing about tanks when one is talking about shirts and the other is talking

about armored vehicles. An empirical approach that leads us to this point

will not do: we need an approach that allows us to talk about genuine

theoretical(and not merely empirical) disagreements about law, the kinds

real legal practitioners have, even though they do not all agree on the

criteria for something being law. The approach we need is an interpretive

one, since competing interpretations of something (for example, a work

of art) are always directed at the same something, despite the fact that

individuals use different criteria in developing their different interpretations

of that something.

If those interpreting law do not agree on the criteria for law, how do they

keep from talking past each other and have genuine theoretical disagree-

ments about law? The answer Dworkin offers begins by examining interpre-

tation in very general terms. The idea is that taking the interpretive attitude

with respect to most practices involves first assuming that the practice hasvalue or a purpose that is independent of the basic workings of the practice

(like the rules), and then assuming that the basic workings of a practice are

not set in stone, but are instead affected by the practices purpose or value.

It is important to note that the interpretive attitude is possible only from with-

in a practice or from the internal perspective. For interpretation to be possi-

ble, everyone participating in a given practice must see it in many of the

same ways, and this includes seeing it as having roughly the same value or

values. They dont all have to agree that every aspect of the practice has to

be understood in a given way, or that they all agree on criteria. Instead, they

must have a basic shared understanding of the practiceand their views on

it must be similar enough that they can understand each other when they

discuss the practice, but different enough that they can have genuine dis-

agreement about it. From this perspective, general agreement on a prac-

tices values does not rule out disagreement about how the practice does or

should embody those values nor about how to prioritize competing values

within that practice. Still, that general agreement provides an initial basis for

The Suggested Reading for this lecture is Ronald Dworkins Laws

Empire, chapter 2, Interpretive Concepts, and chapter 3,

Jurisprudence Revisited.

Lecture 5:

Theories of Interpretation


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evaluating whether or not an interpretation is viable: if it fails to fit with the

practice as it is generally understood, then it is not a viable interpretation.1

With all of this talk of interpretation, its helpful to distinguish three main types

of interpretationconversational, artistic or creative, and scientificand then

to see that legal interpretation is a species of artistic interpretation, what

Dworkin calls constructive interpretation. First, though, we must distinguishlegal interpretation from conversational interpretation, and if we can do that,

we will in the process undermine many appeals to original or legislative intent,

since the speakers intention is definitive in cases of conversational interpreta-

tion. Briefly, the argument goes like this: in conversational interpretation, there

is one criterion for determining whether or not you have the right interpretation

of what the other person in the conversation meant, and that criterion is what

he meant or what he intended his words to mean. But if legal interpretation

were like that, then Supreme Court justices would focus a lot more than they

do on historical accounts of what the Framers of the Constitution had in mindwhen they wrote and voted for it and on phone calls to current legislators who

wrote statutes they review. No, legal interpretation seems to be much less

about what legislators meant and more what the law itself means (to the

American people, perhaps). In this way, legal interpretation is much more

like interpreting a work of art, where the artists intentions do not necessarily

dictate what the work of art means to a given

individual or to generations who see it or read it

hundreds of years later. As such, legal interpreta-

tion is essentially constructive, in that it tries toprovide an understanding of the law that ultimate-

ly portrays the law in the best possible light. In

other words, constructive interpretation seeks to

put together an understanding of a given practice

that fits well with the way that practice actually

works and simultaneously justifies that practice

according to its own values better than other

candidate interpretations.

Dworkin ends chapter two with a long andat times confusing discussion of various kinds

of skepticism one could have with respect to

interpreting a practice. There are basically three

different types of skepticism about interpretation:

external, internal, and global internal. External

skepticism, or skepticism about the practice

being properly justified by reference to some

value outside of that practice,2 is not particularly

LECTUREFIVE

20

1. For example, it seems fair to say that the point of the practice of dating is to develop romantic

relationships of one sort or other. Given that claim, an interpretation of dating that depended on

understanding it as a way of keeping restaurants in business would be, on its face, a bad (or

nonviable) interpretation of the practice.

2. Justifying a practice by establishing its link to some external value is precisely what the Natural

Law Theory (see Lecture 1) advocates: All law must be just or accord with the laws of God or of

Nature or of Reason in order to be valid law. The external skeptic claims that no such external

value or law exists, so there is nothing outside of the law we can appeal to that will help us vali-

date the law.

MichaelMoran/s

hutterstock.com


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21

troubling or threatening, since law seems to have its own internal principles

that justify it working the way it does, and that fact makes justifying law from

the outside, by appeal to some external order or law, unnecessary or beside

the point. Internal skepticism, or skepticism about particular interpretive

moves within the practice, and global internal skepticism, or skepticism

about the very interpretive attitude behind a given practice, are both moretroubling to Dworkin because if either turns out to be right, especially global

internal skepticism, then our understanding of law would fall in on itself. We

have some work to do before we can answer the internal skeptic: if we can

show that the values and workings of the practice of law actually can and do

justify particular interpretations of law, then not only will we be able to prove

the internal skeptic wrong, but we also will have made a case for a theory

of legal interpretation.


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1. What is the interpretive attitude?

2. How is legal interpretation much like interpreting a work of art?


Raz, Joseph. The Concept of a Legal System: An Introduction to the Theory

of Legal Systems. 2nd ed. Oxford: Clarendon Press, 1980.

Questions

Suggested Reading



LECTUREFIVE

22


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23

This lecture is titled Legal Conservatism because the first interpretive

approach Dworkin considers in Laws Empire is a view he calls Con-

ventionalism, many aspects of which coincide with what most of us

might call legal conservatism. Legal conservatism is the position I dis-

cussed previously in Lecture 3, and it generally holds that judges should

enforce the law as it is, not invent it or try to improve it as they go. Ofcourse, there are other views that might fit into the category of legally con-

servative, and some of those I will discuss in this lecture. Others, however,

such as those that appeal to original intent, I will leave aside for now, but

will address in later lectures.

Conventionalism is the view that the law is only what legal conventions (leg-

islation, judicial decisions, and so on) explicitly say it is, such that all compe-

tent legal practitioners would agree about what those conventions require.

The aspect of Conventionalism that lines up with the laymans view of legal

conservatism is Conventionalisms demand that judges not enforce anythingother than explicit conventions (such as moral or political views). However,

unlike the laymans view, Conventionalism recognizes that existing legal con-

ventions do not provide clear answers in all cases. Conventionalism must

acknowledge that the law is incomplete in this way because Conventionalism

is an interpretive approach to the law, and as such, it recognizes the fact that

despite considerable agreement, there are areas in which one finds gaps

(at least thats Conventionalisms view). To address

these gaps, Conventionalism allows judges to use their

discretion to decide cases when legal conventions donot explicitly require a particular decision one way or

the otherand once they do, those decisions them-

selves become legal conventions lawyers and judges

will follow. This part of Conventionalism is reminiscent

of moves Legal Realism and Legal Positivism suggest

for judges when the law runs out.

We should evaluate Conventionalism using the

methodology I suggested in the last lecture for

evaluating constructive interpretations in general:first, we must ask if this interpretation of the law fits

the law as it is practiced, then ask if it justifies the

law better than other interpretations. We can use

this two-stage evaluative process, fit and justifica-

tion, for all three candidate interpretations Dworkin

considers in Laws Empire. In the end, Conven-

tionalism does not actually fit with present practice,

The Suggested Reading for this lecture is Ronald Dworkins LawsEmpire, chapter 4, Conventionalism.

Lecture 6:

Legal Conservatism

G.

Maury/shutterstock.com


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LECTURESIX

24

though it might seem to at first: since most cases that deal with explicit legal

conventions would not come before a judge (because they would never be

brought as cases or would be settled out of court, given that the law would

be clear in such cases), Conventionalist judges would end up using their

discretion and filling in gaps far more often than they would just follow the

law as its written. Such a picture does not fit with present practice: we donot see judges claiming that the law has run out and that they are thus using

their discretion. To the contrary, judges seem focused on figuring out what

the law is or demands in a given case. A true Conventionalist would not

scrutinize law that was controversial or unclearin such cases, he would

simply use his discretion. Also, the kind of agreement we find in the law

seems more like a principled consensus rather than mere convention or a

particular way we just happen to do things. This point is important because

Conventionalists would not look to principles that underlie the law to help

them decide cases (as real judges do), because then they would be

appealing to something other than explicit legal conventions.

Even if it did fit present practice, however, Conventionalism would still have to

justify our practice of law better than other interpretations. In order to do that,

one would have to show that the dominant value behind Conventionalism, the

political value of protected expectations,1 plays a major role in portraying the

law in its best possible light. In other words, for Conventionalism to pass

muster at the level of justification, the law must be best understood as a sys-

tem that, first and foremost, protects the expectations of those subject to it.

However, if that is the best goal for the law to have, there seems to be aninterpretation of the law that achieves it and protects expectations far better

than Conventionalism does. Unilateralism holds that unless there is something

explicit in the law that would require a judge to decide in favor of the plaintiff,

the judge must decide for the defendant. Unilateralism would protect expecta-

tions much better than Conventionalism ever could, but Unilateralism cannot

even pass the basic threshold of fit: though criminal law resembles Uni-

lateralism in some ways, no other areas of our law operate this way at all.

Beyond that point, Unilateralism is too rigid and cannot provide the kind of

flexibility (and account for undermining rather than protecting expectations

when that needs to happen) we have and need in the law as it is practiced.

What we need is the right balance between stability and flexibility. But rather

than argue directly that Conventionalism does not have the right balance, we

can look toward Pragmatism, the next theory well consider. Pragmatism holds

that state coercion is justified not by appeal to legal conventions, but rather by

how defensible the decision is in general terms. The claim is that Pragmatism

provides both more flexibility than Conventionalism and as much predictability

as Conventionalism, though well have to wait until the next lecture to see how

Pragmatism achieves this. If Pragmatism does in fact offer a better balance of

predictability and flexibility, then Conventionalism cannot justify the law better

than the alternatives and thus fails as an overall interpretation of the law.

1. Protected expectations refers to a kind of stability in the law that keeps surprise changes to a

minimum. So understood, protecting expectations is clearly valuable in a legal system, as too

much surprise introduces confusion and inefficiency in the administration of the law.


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1. When and why would a Conventionalist employ discretion?

2. How does Unilateralism protect expectations better than Conventionalism?


Coleman, Jules L. Negative and Positive Positivism. Chicago: The Journal

of Legal Studies, vol. 11, p. 139, 1982.

Postema, Gerald. Coordination and Convention at the Foundations of Law.

Chicago: The Journal of Legal Studies, vol. 11, p. 165, 1982.

Questions

Suggested Reading


Articles of Interest

25


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The Suggested Reading for this lecture is Ronald Dworkins LawsEmpire, chapter 5, Pragmatism and Personification.

Lecture 7:

Judicial Activism

LECTURESEVEN

26

As with Lecture 6, this lecture gets its title from the view that most gener-

ally resembles Pragmatism, the interpretative approach Dworkin takes up

in chapter 5 of Laws Empire. Pragmatism rejects the Conventionalist

claim that past political decisions justify the use of state coercion and

holds instead that it is the moral or political value of the decision itself that

justifies such coercion. If the phrase the moral or political value of the deci-sion itself here seems vague, it is: a Pragmatist judge decides cases based

on her particular view of what decision is best for the communityand differ-

ent judges will tend to employ different moral or political standards to deter-

mine what best means.

Dworkin argues that Pragmatism would likely guarantee predictability as well

as Conventionalism would, since undermining legal expectations tends to be

disruptive for the community (because then citizens have a harder time,

among other things, avoiding sanctions or lawsuits). Just about any approach

to what is best for the community will recommend that judges generallyuphold the most explicit legal conventions to avoid such disruption. Beyond

this point, however, Dworkin suggests that Pragmatist judges would tend to

go even further and guarantee some notion of rights, even though

Pragmatism would ground legal rights by appeal to moral or political values

beyond past political decisions. The result would be what Dworkin calls as-if

rights, or the practice of treating citizens for the most part as if they have

rightswhen doing so turns out to be best for the communityeven though,

if pressed, Pragmatists would deny that there are any legal rights in the

strongest sense (that would override any policy considerations weighingagainst them). So understood, Pragmatism would achieve a level of pre-

dictability roughly equivalent to Conventionalisms, but with much greater flex-

ibility to modify the law when doing so would be better for the community.

On the question of fit, however, Dworkin argues that even though

Pragmatism fits practice better than Conventionalism does, Pragmatism nev-

ertheless seems at odds with the way actual judges reason in hard cases. On

the one hand, actual judges take into account past political and legal deci-

sions and work hard to reason from them to find principles upon which they

base their decisions. Pragmatist judges, on the other hand, would not need towork nearly so hard reasoning out their decisions: all they would need to do

is appeal to their preferred moral or political value systems, since past politi-

cal and legal decisions have at best only indirect impact on how a Pragmatist

judge decides a case. Dworkin also seems to think that real judges actually

worry quite a bit about rights and not just as if they existed. Of course, real

judges could be Pragmatists in disguise, cloaking their own moral or political

views under disingenuous talk of legal conventions and rights, but then


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Pragmatism meets the threshold of fit

only if we understand judges as well-

meaning liars.1

Despite these problems, Dworkin suggests

that Pragmatisms real failure is at the level

of justification, primarily because it offers aview of rights with which he fundamentally

disagrees. Before he concludes chapter 5,

Dworkin suggestswithout much in the way

of argumentthat rights should be under-

stood as nonstrategic or grounded in principle

in such a way that policy considera-

tions almost never override

them. Based on this under-

standing of rights, Dworkinsuggests that insofar as

Pragmatism would justify the

practice of law without reference

to overarching principles and

rights, Pragmatism cannot justify

the law better than an interpretative

approach that requires the law as a

whole to be consistent in principle or to

be coherent. Even though Dworkinappears to attack Pragmatism simply for

failing to share his (undefended) view of rights,

inasmuch as this rights-based attack leads him to this

broader claim about coherence (or integrity), Dworkin

seems to have much more of an argument. Pragmatism

does seem to allowif not encouragejudges to make decisions that go

against deeper considerations of principled coherence in the law as a whole,

primarily because it encourages judges to seek out what is best for the com-

munity in making their decisions, regardless of how well that decision is con-

sistent in principle with the rest of the law. To finish off Pragmatism, then,

Dworkin must show that coherence or integrity in principle is a central value

in the practice of law. This move mirrors the move he makes with respect to

Conventionalism at the end of chapter 4, in that he suggests an alternative

that appears to justify the law better than the approach in question and that

he will discuss in detail in the next chapter. And like last time, if Dworkin turns

out to be right that integrity is a central value in our practice of law, then he

will have proven that Pragmatism does not provide the best justification for

the law, and Pragmatism will have failed as an interpretation of the law.

27

1. Interestingly, those who rail against judicial activism see activist judges in just this way, and that

is part of their case against such judges: activist judges are problematic, in part at least, because

they foist their own political and moral views on citizens by smuggling those views into their deci-

sions and making them look like they are supported by actual legal arguments.

JozefSzasz-Fabian/shutterstock.com


29/58

1. How is Pragmatism at odds with the way actual judges reason in

hard cases?

2. In what way does Pragmatism allow judges to make decisions that go

against deeper considerations of principled coherence in the law?


Dworkin, Ronald. A Matter of Principle. Cambridge, MA: Harvard University

Press, 1986.

Questions

Suggested Reading



LECTURESEVEN

28


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29

At the end of the last lecture, I noted that if we could show that integrity is

a key political value in the law, then we would be able to demonstrate that

Pragmatism does not justify the practice of law better than the alterna-

tives. Perhaps not surprisingly, the alternative Dworkin believes to be

preferable to Pragmatism is going to depend on integrity as a value in inter-

pretation, and that alternative will be Dworkins own adjudicative scheme,which he calls Law as Integrity. By integrity here, we mean an overall

coherence in principle. We can begin defending integrity as a value in law by

arguing for integrity from the legislative perspective, as opposed to the

judges point of view. We begin with integrity in legislation because the best

interpretations of the law will speak not only to deciding cases retrospectively

or based on existing law, but also to creating law as legislators do. This is

why Pragmatism is preferable to Conventionalism: Conventionalisms ideal of

protected expectations is a retrospective value, one that does not address at

all the forward-looking concerns we have in legal disagreements. Since

Pragmatism can protect expectations and also explain how we should

prospectively change the law, Pragmatism is preferable to Conventionalism

and provides a rival account to Law as Integrity.

To determine whether or not integrity is a value in legislation, we will use the

same standards of fit and justification that we have used to evaluate other

candidate interpretations. Integrity in legislation fits current practice in part

because it explains why we avoid checkerboard laws, or laws that are noth-

ing more than a policy compromise between two sides, rather than an

expression of a principle. An example of a checkerboard law would be a lawthat allowed women born on odd years to have abortions, while criminalizing

abortions for women born on even years. The fact is that such laws offend

our legal sensibilities, and they do so because on matters of such importance

The Suggested Reading for this lecture is Ronald Dworkins LawsEmpire, chapter 6, Integrity, and chapter 7, Integrity in Law.

Lecture 8:

Law as Integrity

EdWhite/RecordedBooks,

LLC


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LECTUREEIGHT

30

(especially in matters of rights), we expect a given law, if not the law as a

whole, to speak with one principled voice. Since checkerboard laws fail to do

thatand instead reflect arbitrary policy compromisesthey fail to fit with

present practice, and that failure serves as evidence that integrity is a key

value in the law as it is practiced.

With respect to justification, the question is: Does the law make more sense,is it more easily defended, if integrity is a key value in it? To find the answer,

we have to think about whether a political system based on a set of coherent

principles (one that has integrity) would be better than one based on no prin-

ciples at all.1 It seems safe to say that a community of principle would find it

easier to generate political obligation and justify state action than would

unprincipled communities. If thats true, then it is the value of integrity that

makes communities of principle better. From the perspective of justification,

integrity then appears to be a key value in the law.

In the end, however, neither the argument from fit nor the argument fromjustification is conclusive in favor of integrity as a value, and Dworkin admits

as much.2 Still, these two arguments do at least create a strong presumption

in favor of integrity as a value in the law, especially as it is practiced. Thats

really all we need, though, to justify moving on now to exploring integrity in

adjudication, or Law as Integrity.

The main device Dworkin uses for explaining the simultaneously retrospec-

tive and prospective approach of Law as Integrity is the Chain Novel analogy.

The idea is that a judges work, especially in hard cases, is like the work of

an author charged with writing the next chapter in an unfinished novel, inwhich the previous chapters were each authored by a different writer. The

first and more basic aim is to make the next chapter fit with the chapters the

chain novelist inherits: one could not take the first chapters of The Old Man

and the Sea, for example, and then write a chapter that tells a science fiction

story or one that makes no reference to characters or plot lines already

establishedat least one could not do either of these things and still expect

anyone to be willing to call this chapter a good candidate next chapter of the

novel. The second and more difficult aim is to write the next chapter in such a

way that it both makes the best sense of the preceding chapters and sets uplater chapters so as to make the novel the best it can be. Overall, the goal is

to write this chapter so that it shows the novel as a whole in its best possible

light. The chain novelists work, then, is very much like the judges in that

both must engage in interpreting the subject matter before them before they

can begin to contribute the next chapter or decision, whatever the case may

be. And in writing the next chapter or decision, both will make sure that their

interpretations fit with whats come before and justify the whole workor

make it the best it can be, both up to this point and as more of it is written.

1. Here, there are at least two options: A de facto political system, or one in which we merely find

ourselves, that grows up inadvertently and organically (say, where individuals shipwrecked on

an island find themselves following the most charismatic member of their group); or a purely con-

ventional political system, or one based on mere traditions or agreed-to practices (where those

practices are not grounded in principle).

2. This is because integrity tries to balance justice or rights against policy, and a perfectly just or

perfectly efficient society may need no such balancing, and thus have no particular need for

integrity. Of course, we rarely see perfectly just or perfectly efficient societies.


32/58

1. Are there any current laws that could be considered checkerboard laws?

2. What is the Chain Novel analogy?


Feinberg, Joel. Problems at the Roots of Law: Essays in Legal and Political

Theory. Oxford: Oxford University Press, 1988.

Questions

Suggested Reading



31


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The Suggested Reading for this lecture is Ronald Dworkins LawsEmpire, chapter 8, The Common Law, and chapter 9, Statutes.

Lecture 9:

Common Law and Statutes

LECTURENINE

32

With the Chain Novel analogy as a starting point, the next step is to apply

Law as Integrity to real cases and see how it works. But it will not work

the exact same way in all sorts of cases. In the Anglo-American legal tra-

dition, there are three main sources of law: common law (focusing on

prior judicial decisions or precedents), statutes, and constitutions. As a result,

cases tend to fall into one of three main categoriescommon law, statutory,and constitutionaland each category has a different focus. Law as Integrity

reflects those varying concerns and adjusts its focus accordingly. Nonethe-

less, the general outline of the method Law as Integrity employs to decide

cases is the same no matter the type of case or area of law: It will evaluate

candidate interpretations using the same standards we used to evaluate

Conventionalism, Pragmatism, and integrity in legislation. First, a Law as

Integrity judge will see if the candidate interpretation fits with the way other,

similar cases have been decided; and second, she will ask whether that inter-

pretation justifies the decision better than other candidate interpretations

meaning that the interpretation and the principle behind it portray the law as a

whole in its best possible light. At the initial phase, judges will rule out those

interpretations that do not fit at all (or do not fit adequately) with the pattern of

decisions in that area of law. Those interpretations that survive the threshold

of fit are then evaluated in terms of how well the principles they express justi-

fy the law in that area and as a whole. Exactly what the standards of fit and

justification look like for a Law as Integrity judge, however, will depend upon

what type of case she is considering.

Common law refers to deciding cases based on past precedent decisionsrather than based on statutes or constitutional provisions. In a common law

case, there is no statute to which a judge can refer to help decide it one way

or the other. In the United States and the United Kingdom, most civil litigation

cases (over contracts, personal injury, and the like) are common law cases,

in which there are relatively few laws on the books and precedent decisions

play a decisive role.

A Law as Integrity judge would decide common law cases by focusing first

and foremost on precedent decisions. She would begin the process of decid-

ing a case by listing the possible interpretations of the law in the case athand, and then would rule out those interpretations that failed to fit with the

precedent decisions most directly relevant to the case. She would also rule

out any candidate interpretations that didnt express a principle on which she

could decide the case. A good example of an interpretation that failed to

express a principle would be one that draws an arbitrary line (and not a prin-

cipled one) between one kind of case and another (as would the checker-

board laws we discussed in Lecture 8). In this way, Law as Integrity is about


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33

principles right from the start, and that fact marks a significant difference

between Law as Integrity and the other views we have discussed. The Legal

Realists and Positivists, for example, do not count the principles expressed in

the law as part of what makes something a law.

Continuing this focus on principles, if more than one interpretation survives

the initial threshold of expressing a principle and fitting with past decisions inthis area of law, then a Law as Integrity judge would then ask which interpre-

tation makes the best sense ofor best justifiesthe precedent cases and

the law in other, related areas. This test of justification requires arguments

about which principles are at play in a given case and, if they compete, how

they ought to be weighed with respect to one another. The best arguments

will treat judges who had made the relevant precedent decisions as earlier

authors of the chain novel, honoring the principles upon which they had

based their decisions and striving to carry their story forward in a way that

makes the most sense and that makes the whole law the best it can be.When a Law as Integrity judge approaches a case dealing with a statute,

and not common law decisions from the past, she will apply standards of fit

and justification in much the same way she does in common law cases.

However, in statutory cases, a Law as Integrity judge will treat the legislative

body that made the statute, and not other judges, as an earlier author in the

chain novel of law. She will also ask, at the level of justification, what view the

statute portrays the political history of that statute and of the law in general in

the best possible light.

JohnMackey/shutterstock.com


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The main rival to Law as Integrity when it comes to interpreting statutes is

the speakers meaning or legislative intent approach (a variant of which is

what some call original intent theory). To focus on legislative intent to fig-

ure out a statutes meaning, however, is to abandon a constructive interpre-

tation in favor of something that operates like a conversational one.1 This

sort of interpretation poses a number of difficulties for a judge: First andforemost, it is often impossible to determine legislators exact intentions with

respect to a statute they pass, especially if they died long ago and likely

never even contemplated the sort of problem a judge might face now with

respect to an old statute. Furthermore, it is not clear whose intentions should

count or whose should count more than others when legislators may have

had different views on, reservations about, and reasons for voting for a

statute. The difficulties only multiply when one factors in those legislators

who decided not to repeal or amend the statute after it was passed and thus

implicitly endorsed the statute and a given understanding of it along the way.

Considered together, all of these difficulties make the legislative intent

approach inferior to Law as Integrity.

Faced with these problems, a thoughtful judge following the legislative intent

approach will ultimately be forced to focus on the legislators convictions as a

means of gaining insight into their intentions. By convictions here, we mean

principles one holds dear and understands as having a particular weight

when they conflict with each other or other principles. Once the legislative

intent judge shifts to focusing on convictions, not only is he no longer really

focusing on legislators intentions, but he is also essentially taking the sameapproach a Law as Integrity judge takes. This move only weakens the legisla-

tive intent approach further, especially as an alternative to Law as Integrity.

LECTURENINE

34

1. I discuss these two very different approaches to interpretation in detail in Lecture 5.


36/58

1. How would a Law as Integrity judge decide a common law case?

2. In statutory cases, how will a Law as Integrity judge treat the legislative

body that made the statute?


Greenawalt, Kent. Legislation: Statutory Interpretation: 20 Questions. New

York: Foundation Press, 1999.

Questions

Suggested Reading



35


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Despite its title, this lecture is just the first of many devoted to constitution-

al lawin fact, the remaining lectures in this course will examine constitu-

tional law issues in one form or another. Constitutional law cases are

some of the more challenging to interpret, given that constitutional cases

focus on common law, statutes, the Constitution, and the relationship

between themall at the same time.

1

Also, constitutional law cases tend tobe among the more philosophically complex cases, since they often have to

do with rights. For these two reasons, along with the fact that constitutional

law cases attract more interest than most other cases, it is important to see

how well Law as Integrity handles constitutional law cases. And for these

same reasons, we will examine in subsequent lectures an alternative to this

approach as well.

At the constitutional level,

Law as Integrity will appeal

to the same general stan-dards of fit and justification

it used to decide common

law cases and statutory

cases. However, since the

Constitution is the most

fundamental law, the Law

as Integrity approach will

draw on all aspects of the

law in deciding constitu-tional cases, including

previous decisions of

courts and U.S. political

and legislative history.

As such, it will treat the

American people, as they

express themselves

through their laws and

through their judicial

system, as prior authors

in the chain novel of

constitutional law.

The Suggested Reading for this lecture is Ronald Dworkins Laws

Empire, chapter 10, The Constitution, and chapter 11, Law

Beyond Law.

Lecture 10:

Constitutional Law

LECTURETEN

36

1. Most constitutional law cases require the Supreme Court to determine whether a statute is con-

stitutional or unconstitutional. Of course, constitutional law cases bear on common law decisions

and on regulations as well, but in this lecture, I will focus on judicial review of statutes.

M.L.

Lawson/shutterstock.com


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We can compare this approach to three other popular approaches to decid-

ing constitutional cases: Historicism, Passivism, and Activism.2 Historicism is

basically Conventionalism applied to constitutional cases: Historicism requires

judges to look first at the clear textual meaning of the Constitution and the

statute in question, and when the texts are not clear, it relies heavily on

Supreme Court precedents. When neither the texts nor the precedents yield aclear answer, then Historicists turn to legislative intent (which we discussed in

Lecture 9). Some would argue that current Supreme Court Justices Scalia

and Thomas are the most obvious examples of real Historicist Justices. The

problem with Historicism is that, like Conventionalism, it values the stability of

the law over all else, and it is not clear that stability is the highest value in

constitutional law: many of our founding principles have found new applica-

tion as time has passed, and this fact alone undercuts the importance of sta-

bility in constitutional jurisprudence.

Activism refers to the stereotypical view of judges who decide cases basedon their political views (as Pragmatism recommends, as we discussed and

criticized in Lecture 7). Passivism maintains that judges should defer to the

legislature when it has made a decision on a given issue. The basic approach

here is skeptical of the view that the judiciary should check the legislative

branch by enforcing constitutional provisions against it. This fact alone makes

it hard to see Passivism as presenting a good fit with our practice: checks

and balances and the Supreme Courts role in judicial review are widely

accepted in our legal system. Nonetheless, even if somehow Passivism

passed the test of fit, it would not pass the test of justification, because itplaces democratic values above all else, even though almost all Americans

understand the Constitution as providing rights against the government (or

the majority).

To the extent that we have already explored the faults of Conventionalism,

Pragmatism, and the speakers meaning (or legislative intent) view, we have

already seen how Law as Integrity is distinct from and preferable to

Historicism, Passivism, and Activism. Still, it is helpful to see how a Law as

Integrity judge will decide a constitutional law case to draw the distinctions

more clearly. In a case like Brown v. Board of Education (1954), a Law asIntegrity judge would consider a list of candidate interpretations, each one

appealing to a different way of treating laws that make racial classifications:

1) suspect classification, 2) banned categories, and 3) banned sources.

Suspect classification holds that racial classifications are suspect, or that the

Constitution is predisposed against them, but would nonetheless permit such

classifications if it can be shown that they treat equally the groups the law

distinguishes between. This is the standard used in the most direct precedent

case, Plessy v. Ferguson (1896),3 which established the doctrine of separate

but equal. A Law as Integrity judge would rule out deciding Brown accordingto suspect classification, because that interpretation did not fit the view of the

2. Dworkin defines and names these views Historicism, Passivism, and Activism, even though few,

if any, jurists would refer to themselves as Historicists, Passivists, or Activists. These terms refer

to groups of interpretive approaches. Aggregating and categorizing them under these labels

allows one to offer general criticisms of the type of approaches each group represents.

3. Plessyv. Ferguson, 163 U.S. 537 (1896).


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Court or U.S. Constitutional law in 1954. Banned categories holds that the

Constitution simply forbids laws that make classifications based on certain

things, and race is one of those. Banned sources holds that the Constitution

allows laws that make certain kinds of classifications (like racial ones) but

only when the classification is not motivated by any racial prejudice or bias

(and it serves some rational purpose of the state). A Law as Integrity judgewould find that either of these candidate interpretative standards would work

for the sake of deciding Brown, and both would lead the judge to decide in

favor of Brown, as the Court actually did in 1954. Once the Court is faced

with an affirmative action case (like Bakke4), however, a Law as Integrity

judge would say then the better interpretation, the better justification for the

law as a wholefor both Bakke and Brownwould be the one that appealed

to banned sources, not banned categories.

What this shows is that Law as Integrity can respond to changes in society

and in the countrys political morality. But because Law as Integrity respondsonly to those changes as they are expressed through various sources of

law, its response is based on various sources of law, not on judicial activism.

And since Law as Integrity sees the Constitution as the most fundamental

law and as guaranteeing citizens rights against the legislature, it will not

decide cases as Passivism recommends. Finally, to the extent that Law as

Integrity accounts for and well handles change in the law, it is at odds with

Historicism and its focus on stability.

Overall, as I have stated several times now, Law as Integrity will strive to

portray the law in its best possible light. At the constitutional level, that meansconstantly reinterpreting and refining earlier decisions in light of changes in

the law and in the countrys political morality, opening up the possibility that

as time goes on, the law will, through the efforts of judges and legislators,

become more and more unified as a whole, will have more and more integrity.

4. Regents of the University of California v. Bakke, 438 U.S. 265 (1978).


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1. What fact undercuts the importance of stability in constitutional jurisprudence?

2. What are the distinctions among suspect classification, banned categories,

and banned sources?


Scalia, Antonin. A Matter of Interpretation. Princeton, NJ: Princeton University

Press, 1997.

Tribe, Laurence H. American Constitutional Law. 3rd ed. Emeryville, CA:

West Publishing Company, 1999.

Questions

Suggested Reading



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Bruce Ackermans We the People: Foundations offers an understanding

of the Constitution and constitutional law that is as focused on political

history as Dworkins view in Laws Empire is focused on legal philosophy.

At the same time, legal philosophy is as much a part of the background

Ackerman assumes as political history is part of the background Dworkin

assumes. Given the way these views complement each other and the influ-ence Ackermans work has had in legal circles, his Dualist Democracy

approach provides a particularly interesting and helpful alternative to

Dworkins Law as Integrity.

Ackerman calls his view Dualist Democracy because it sees in the U.S.

legal system two tracks for lawmaking: the constitutional or higher law-

making track and the everyday or normal politics track, which results in

statutes and regulations. These two tracks are embodied in the U.S.

Constitution itself: there are separate and different rules expressed in it for

creating ordinary, everyday laws on the one hand, and for amending theConstitution on the other. Given these different sets of rules, the government

(via elected representatives) makes normal laws, while the People are

responsible for making higher law.1 On this view, the Supreme Court plays

the role of preserving the higher law from being undermined or chipped away

by normal politics and everyday lawmaking.

Despite its intuitive appeal, the Dualist approach stands in stark contrast to

several other popular approaches to understanding our system of constitu-

tional law. Monism focuses almost exclusively on the democratic decisions of

elected officials and thus objects when the Supreme Court invalidates somelaw, and it objects on the grounds that the Courts invalidating it is counter-

majoritarian. As such, Monism seems to collapse the two tracks of Dualism

into one dominant track (thus its name). Against Monism, its important to

notice that both of the tracks Dualism suggests are essentially democratic

and that it is appropriate that the one that requires more people approve of it

(the higher law track) has prominence over the other.

Rights Foundationalism holds that rights are more fundamental to our consti-

tutional law than democratic procedures are, and for this reason, rights serve

as a check on normal politics. Foundationalists maintain that these rights arebetter understood through appeals to philosophy than through appeals to any

sort of politics. Against this view, Dualism argues that any understanding of

constitutional rights must be grounded in democratic processesand not in

The Suggested Reading for this lecture is Bruce Ackermans We thePeople: Foundations, chapters 1 and 2.

Lecture 11:

Dualist Democracy

LECTUREELEVEN

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1. Here, the People seems the appropriate term, given the supermajorities (two-thirds of the

House and Senate and three-quarters of the state legislatures) required for higher lawmaking.


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philosophical theoriesto have any legitimacy. Unlike Foundationalism, then,

Dualism is first and foremost a democratic approach, in which rights play a

secondary and dependent role.

Interestingly, Ackerman identifies Dworkin as a Rights Foundationalist. While

some of Dworkins writings certainly suggest that he leans in this direction, it

is not clear that Law as Integrity is necessarily a Rights Foundationalist view.Law as Integrity does hold that justiceor an appeal to rightsis the domi-

nant value at the level of constitutional law, but it understands those rights as

developing through the political and legislative history of the United States.

The third view we can contrast with Dualism is Historicism, or the view that

constitutional change should be incremental and brought about by statesmen

who can keep the change from being disruptive for the nation. On the one

hand, Historicism is deeply skeptical of the Peoples ability to understand

what is best for society and of the Peoples ability to figur

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