Jurisprudence Final Exam – Fall 2010

Jurisprudence – ShapiroFall 2010

Exam ID: 2235

Jurisprudence Final Exam – Fall 2010

1)

In his extensive work, Law’s Empire (Belknap Press, 1986), Ronald Dworkin sets out

both his own conception of what law is, as well as general principles to categorizing and

understanding competing vision of the law. His work covers broad as well as specific aspects of

legal philosophy, and attempts to secure an explanation of the law adheres both to our empirical

experience of law in practice, and our moral and social intuitions about what law ought to be. He

accomplishes this by considering past legal philosophy, demonstrating their weaknesses, and

finally, in light of those weakness to conclude on his own theory, that of Legal Integrity.

Dworkin begins by considering the two historically dominant theories of what law is:

natural law, and the “plain-fact view.” He describes these opposing conceptions of law as

follows. Natural law, simply put, understands law as synonymous with morality, or justice. There

are metaphysical principles of law that are aspired to, and in the absence of coherence with these

metaphysical principles, there is no law. Conversely, the “plain-fact view” asserts, “law is only a

matter of what legal institutions, like legislatures and city councils and courts, have decided in

the past.” Id. at 7. Dworkin defines both of these approaches as Semantic Theories of law. They

set out to say what law is objectively. For the plain-fact theorist, there is no one who does not

agree on some level that law is embodies in institutions. He goes on the reject such approaches in

that they amount to a metaphysical reification of language, that fail to account for the variety of

opinion and usage that manifestly exists in meaning of the term law. In their place he advances

and interpretative theory of law, that does not look to divine some Platonic form of law, or

positivistic linguistic convention, but rather accepts that law is a social phenomenon, and seeks

to interpret it as its object.

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Without going into to excessive detail, Dworkin sets out a interpretation of the social

phenomenon of law should look like. First he notes that there are three phases of interpretation in

the social practice of law. The first is “pre-interpretive,” it is the period in which basic

institutions and practices are formed. While there is potentially some interpretation that gives rise

to them, it is equally plausible that such practices arose from convention or other means. The

second phase is the “interpretive,” with practices in place, one can consider what unifying

principle if any they express. The final phase he terms “post-interpretive,” this is how a legal

system is altered in light of interpretive decisions. He further notes, that as with all interpretive

activities, it is important that there be some common plateau of what the object of interpretation

is on a basic level. He concludes that:

The most abstract and fundamental point of legal practice is to guide and constrain the power of government in the following way. Law insists that force not be used or withheld, no matter how beneficial or noble these ends, except as licensed or required by individual rights and responsibilities flowing from past political decision about when collective force is justified.” Id. at 93.

With this rubric in mind, Dworkin goes on to consider various interpretations of our legal system

Having rejected Semantic Theories of law, Dworkin moves on to discuss three competing

Interpretive Conceptions of law, thus further narrowing the range of possible, and probable

explanations available. In considering whether a particular conception of law is true, Dworkin

sets out two criteria for consideration. Given the fact that legal philosophy, as Dworkin limits it,

is an interpretive act, with a given societies legal practices as its object, the first question that

should be asked is whether a given conception conforms with the realities of the system it

addresses. The second criteria considered, is whether a given interpretation shows the legal

system in its best light. In Dworkin’s “plateau” for legal interpretation, this amounts to whether

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or not a given interpretation justifies the use of coercive force in our legal practice. Using these

two criteria Dworkin considers three opposing interpretations of law: Conventionalism,

Pragmatism, and Integrity. He concludes that Integrity is the most satisfactory of the three

conceptions, in both fidelity to the realities of our legal practice, and in justifying the use of

coercion in that practice.

The Conventionalist interpretation holds that “the collective force should be trained

against individuals only when some past political decision has licensed this explicitly in such a

what that competent lawyers and judges will all agree about what that decision was, no matter

how much they disagree about morality or politics.” Id. at 114. Dworkin acknowledges that this

conception is remarkably similar to legal positivism, but notes that it does not claim that no other

conception of law exists, it merely claims that this happens to be the one that exists in our

system. Conventionalism is based on the supposition that the justification of coercion is rooted in

the principle of “protected expectations.” It asserts that coercion is only justified when laws are

clearly promulgated to the public, and it can expect the outcomes that the legal system

prescribes. From this claim Dworkin deduces two post-interpretive principles for

Conventionalism. First, that the jurist is bound to past convention, and there is no act of legal

decision making that can circumvent this principle. Second, that in cases where the law is silent,

there is no “spirit of the law” or general principles that can be used to divine the correct legal

decision. Because the law is bound to its principle of protected expectations, any unforeseen,

hidden, or deduced principles would violate this central tenet. As such, in instances where the

law is silent, the judge must make legal rulings based on morality, prudence, or other criteria.

However, he may not turn to past similar cases. Only explicit statements can be considered

binding convention.

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Dworkin rejects conventionalism. In his view it fails both in accurately describing the law

as it is, and in justifying coercion. On the first account, it fails to acknowledge that judges do, in

fact, make extensive use of precedent in come to conclusions in hard cases, that are not explicitly

dealt with in statute or precedent. If Conventionalism is accurately descriptive of our legal

practice, this would be nonsensical. On the second account, he sees this interpretation as failing

to justify the system, in that protected expectations are not enough to explain the system as a

whole. First, he notes, that a violation of expectations, is not immoral, unless it goes against

expectations that were set out clearly in the first case. As such, Conventionalism accomplishes

little in justifying the use of coercion, if, for example it is promulgated that judicial decision

would be based on personal moral discretion. In this instance, expectations would not need to be

protected, tin that there are none. He further argues, that there can be no appeal to

Conventionalism as a practical concern, in that there is no reason to assume that political like

would be better served by blind adherence to past rulings, rather than a consideration of changes,

and current circumstances.

The second view advanced by Dworkin is that of Pragmatism. This view rejects the

reliance on the past whole cloth. It assumes that lawmakers and judges should make decisions

based on what is most sound prospectively. Here the problems are more glaring. How can this

interpretation fit our legal system, when judges always look to past law to determine their

particular rulings? The pragmatist must make the assertion that the judge does not need to

reference past cases, but may find it expedient to create the “noble lie” of reliance on precedent

in order to fully affect his legal ruling on the general public. While this explanation is certainly

possible it is not plausible in any sense. It would be exceedingly strange for the vast literature of

legal doctrine and case law to exist if it were all merely subterfuge. Similarly, this interpretation

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does nothing to justify the use of coercion. It denies the existence of individual rights by

necessity, as each law maker can alter and change the current legal regime to fit what is most

utilitarian. As such, there is no need to justifying coercion, beyond its practical value in a given

society.

Dworkin’s favored interpretation of our legal system is that of Integrity. He defines this

principle is the demand that our law are created and interpreted in such a manner that they are

coherent when taken as a whole. He begins his discussion by considering how Integrity is

conceptually distinct from that of Justice and Fairness. He then uses this to show that Integrity

accurately describes our legal system’s practices, thus succeeding in his first criteria. He then

considers whether Integrity justifies the use of coercion, and does this by appeal to the notion of

associative obligations. Finally he describes how this principle shapes the decision-making of

judges in a hypothetical legal case.

Before considering Dworkin’s specific arguments regarding Integrity, it is important to

first consider a potent objection to the foundation of his interpretation. The notion that internal

coherence is the central guiding principle of our legal system assumes a certain personification of

collective action. Simply put, why is coherence of concern in a social practice such as the law,

when the law is the production of thousands of individuals separate actions. There is no solitary

collective that can be taken to account for its hypocrisies. How then, can Integrity serve as its

central principle?

Dworkin attempts to avoid this objection, by simply stating, that apart from any rationale,

the fact remains that we do personify institutions in both theory and practice. He considers the

instances of an car manufacturer that sells defect products. He argues that we find the

corporation liable in that case apart from its constituent individuals. He further claims that we

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cannot simply say that the finding of a corporation as liable, is simply a shorthand for the

intersection of all contributing acts, because we hold the shareholders principally liable, despite

the fact that they had no direct influence on the sale defective product, and furthermore, did not

even directly add capitol to the enterprise in the trading of their shares on the market. He brings

further examples of personification in practice, in terms of sentiments of national responsibility

for past wrongs. He notes that although present day Germans had no direct responsibility for the

Nazi atrocities, there is a sense of (at least attenuated) responsibility that persists. Dworkin’s

response, while lacking in theoretical explanation, does provides solid evidence that institutional

personification is common place in our legal and political framework.

With the idea that the law is, at least in practice, conceived as a personified unitary entity,

Dworkin moves on to further refine the concept of Integrity. He first considers how Integrity is

distinct from notions of Justice and Fairness. Justice, in this view are the moral decisions that we

make as to the rightness of a given law. Using the question of abortion, Justice considers whether

the act of abortion should or should not be allowed. Conversely, Fairness, is the procedural right

to equality in the political and legal arenas. Principles of Fairness include the notion of

representative majoritarian rule. Each individual has a fair shot to have his moral judgments

become articulated law. Thus according to Dworkin these two concepts are distinct. An

individual opposed to abortion might say that its legalization in American in unjust, but will not

argue that the legal mechanisms that made it so were unfair. Conversely, such an individual

would say that its illegality in a theocratic dictatorship is just, despite the fact that the law’s

passing was unfair.

Dworkin uses the distinction between Justice and Fairness to demonstrate that a third

category, Integrity, exists independent of the two. To this end he considers a legal outcome quite

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foreign from what American’s are used to. He asks, if Fairness and Justice are the only principles

that matter in our legal system, why do we insist that a given law be applied universally. Why,

for example, can we not legalize abortion for a quantity of women equal to the percentage of

voters who desire its legalization. Dworkin claims that in terms of Fairness, there can be no

objection to such a compromise, as it respects the views of all citizens in the community, and

gives voice to their moral judgments. Similarly, he argues that in terms of Justice, this outcome

would be superior to that of blanket illegality or legality. For the individual who opposes

abortion, would it not be more justice to prevent at least some prospective abortions, rather that

take the all or nothing approach? This hypothetical alternative to our current system points to the

existence of a third unifying legal principle, that of Integrity. Independent of Justice and

Fairness, Integrity dictates that the State personified, strive for internal coherence. Therefore,

such “checkerboard” solutions, as Dworkin terms them, are unacceptable in our legal system. He

gives further credence to this view, arguing that this principle is enshrined in the Constitution

itself, in the Equal Protection clause, which demands that laws be applied equally to citizens,

thus demanding that the legal system include internal coherence on a fundamental level.

It is thus demonstrated that Integrity does conform to the reality of our legal system.

Beyond not contradicting any common practice of our laws, it serves to explain an important

phenomenon, which cannot be adequately understood without it. Later in the text Dworkin

further demonstrates that the principle of Integrity serves to explain the manner in which judicial

decisions are made, in a manner more satisfactory that its competitors. The reliance on precedent

in this view, is not simply a dry deference to binding convention, not a farce designed to conceal

pragmatist judicial fiat. Rather, a judge must look to past rulings in order to insure that coherence

of the law, or its Integrity is maintained. This is true not simply where extant case law touches on

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an issue directly. Rather, even in cases where explicitly promulgated law is silent on a given

topic, it is essential that a judge consider the past, to insure that his ruling conforms not simply to

his own moral judgments, but to the train of implicit legal thought bequeathed to him or her. He

explains this concept by reference to what he calls a “chain novel.” He considers what an author

would do if given part of Dickens’ “A Christmas Carol,” and asked to complete it, without

knowing the books actual ending. He contends that it would be exceptionally difficult for an

individual to construct the last chapter of this novel such that Scrooge is irredeemably evil. It is

not that such an ending would be impossible to imagine, but that it would stand in sharp

interpretive dissonance with the proceeding chapters. Similarly, he argues, judicial reliance on

precedent relies on the interpretation of past legal decision to decide whether his own

conclusions conform with the interpretive sweep of past thought, thus insuring the coherence and

Integrity of judicial decision-making.

The question then remains, how and if Integrity serves to justify the use of coercive force

in our legal system, which he links with the idea of legitimacy of rule. After considering a

number of competing views and dismissing them, Dworkin settles on “obligation of community”

as the correct justifying principle in legitimating the use of coercion. He argues that the

strongest, and perhaps most meaningful sense of obligation stems from institutions such as

family and community. Despite the fact that familial ties are non-consensual, an individual’s

obligation to his or her parents and siblings is an almost unbreakable bond of mutual obligation.

Dworkin argues that similar bonds of obligation exist in the political community, but that both

are predicated on certain features that strengthen this sense of obligation. He argues that an

associative obligation must be based on membership in that association that is: special (i.e.

exclusive of other associations), personal (i.e. they run directly from one individual member to

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another, not generally in the community), pervasive (i.e. encompassing a general concern for

members, not specific contractual obligations), and egalitarian. He argues, for example, that in a

family where a daughter’s marriage is determined by her father, that this will violate the sense of

obligation to follow her father’s rules, if it flows from a lack of gender equality. In other words,

if her lack of choice is the result of women being of less value than men, then her sense of

obligation to follow such a rule is highly eroded. If, on the other hand, the reasoning behind such

a rule is concern for her wellbeing, then there is a sense in which ignoring her father’s wishes is

violative of something, and therefore, she will be feel the need to at least apologize in flouting

her arranged marriage.

With these four criteria of associative obligation, Dworkin argues that Integrity as the

basis of the political community, serves to strength our sense of obligation, and thus legitimizes

political authority and coercion. Our legal community is special, in that it is based on shared

principles of justice and fairness that are coherently articulated in a manner unique from

competing communities. It is personal, in that the society’s legal principles are active in each

individuals obligations towards another. It is egalitarian, in that the requirement of coherence,

demands that the law be applied to everyone in the same manner. And finally, it is pervasive, in

that legal obligations in this interpretation are not limited to specific iterations or conventions of

practice, but stem from the “chained novel” of past judicial and legal thought. Principle, not

simply articulated law binds us. Dworkin argues, that because these four factors are thus

strengthened by the interpretation of our legal system as Integrity-based, and as such that

interpretation is successful in justifying coercion.

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5)

In A Matter of Interpretation (Princeton University Press, 1997) Justice Scalia advances a

view of statutory interpretation known as textualism. He argues that despite the vast history of

common law jurisprudence, and legal education based on those decisions, the lion’s share of

what a federal judge’s activities are composed of is rooted in textual interpretation. He writes

disparagingly about how the legal establishment has failed to present cogent theories of statutory

interpretation, despite its ubiquity in legal practice, and presents his own theory. Which in short,

is fidelity to the plain meaning of a statute, without concern for its legislators non-expressed

intentions.

Scalia’s argument begins with an attack on the mode of statutory interpretation that gives

special importance to the intent of the legislature. He raises three principle objections to this

approach. First, he argues that it does not take account of another principle of statutory

intperpretation, namely that statutes are to tbe interpreted in such a manners as to eb consistent

with other statutes. If the interpetation of a statute is bound in the specific intentions of the

legislatures that passed it, then this concern for coherence would be nonsensical. It is highly

improbable that any legislative body passes laws with the totality of a given code in mind when

it it passed. On the contrary, they often arise from spefici policial pressures and events, and take

little account of theoretical legal coherence. Scalia would argue that if, however, statutory

interpretation is limited ot promulgated law, divorced from the intentions that gave rise to it, then

there is greater sense in seeking textual coherence across a given code. In that the plain meaning

of a text should be considered in the context of the larger body of text it is contained in.

Scalia acknowledges that this view of statutory interpretation involves a sort of legal

fiction. Quoting Bishop’s treatise on statutory interpretation, Scalia notes that we are not seeking

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legislative intent, but the “meaning which the subject is authorized to understand the legislature

intended.” Id. at 17. This somewhat cryptic statement is elucidated when considered in the

context of Scalia’s next attack on legislative intent. Namely, that in a democracvy, there is no

legitimazy to law that is not promulgated. He give credence to this ideal by reference to the

United States as a government of laws, not men. This notion of governmental legitimacy is

bound up in the notion of “protected expectations” that Dworkin discusses (and rejects) in Law’s

Empire. In this view, having stable legal expectations is essential to the legitimacy of law. As

such, an indiviudal’s expectations would not be adequately protected by statutes whose meaning

was hidden away in deep interpretations on intent. Therefore, Scalia assumes that the only

meaning “allowed” to a statute, is that which is most easily accessable to the individual, namely

the plain meaning of a text. Further credence is granted to the connecting of Scalia’s textualism

with Dworkin’s notion of the Conventionalist concern for protected expectations, in Scalia’s

statement that “The rule of law is about form.” Id. at 25. For Scalia, the principle virture of law

appears to depend on Conventionalist tendencies which favor form over content.

Scalia’s final argument against considering legilative intent rests on the assertion that this

will lead to judicial abuse of power. In Scalia’s view, judges are meant ot be interpreters of law,

not its authors. He sees the validity of legislative intent in statutory construction as a dangerous

inroad available to the inscrupulosu judge, bent on enforcing his own political judgments extra-

legal. This judge will be able to manipulate the meaning of a statute more easily in Scalia’s view,

than it constrained to plain meaning. This argument, however, is quite weak, in that in instances

of most litigation surrounding a statute, the reason a lawsuit was plausibly possible was because

of ambiguity in the meaning of a statute. In other words, in instances where statutory

interpretation is needed, it is necessarily in instances of textual ambiguity. This being the case, it

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is hard to see how taking an account of legislative intent serve to allow any further opportunity to

the judge to ac unscrupulously than simply making a bad-faith plain meaning interpretation.

Scalia’s most persuasive argument for the exclusion of intent as a criteria for

interpretation lies in his practical skecptacism about the accuracy of legislative histories. He

notes that even if should be concerned with investigating the intents of legislators, there is little

sense in which recorded histories of debate and comities reports can actual reflect the intents of

those who enacted a law. Consider the following. A Congressional committee considers passing

a new regulation on the use of coal in an area where it will detrimentally affect its ecosystem.

The committee inverstigates and debates the issue extensively, considering the costs and benefits

of sucha regulation, and decides in drafting the bill, that the interest of disallowing outweigh

allowing because of the negative impact such pollution with have on the area’s economy. Now

that bill, stripped of its rationale is presented to the whole fo the House od Representatives.

When Representative John Smith votes for the law, it is possible (and likely) that he has not read

and is not familiar with the committees reports and rationale. He may have voted for the bill

because, be thinks the aesthetic value of a coal-free environment warrants its regulation. If this

bill becomes law and is the subject of litigation, whose intent matters? There cannot be said to be

a unitary legislative intent that transcends its individual enactors. Similarly, committee reports

and other forms of legislative history, while educational as to the intents of some enactors,

cannot be said to be even a fair indication of all its enactors intentions. In the absence of a

coherent notion of a unitary intention for a given statute, it seems that the only workable option

available is to consider the meaning of a statute to be limited to its text, as one can at least say

that all members of Congress have accented to its passing.

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A further objection might be raised that even the text cannot be said to be authoritative

under the criteria of enactment, as it is unlikely that every legislator has read and understood the

text he votes to put into law. While this might be true, it speaks more to officials dereliection of

duty, than to principle. Even if most legislators did nto read the text of a bill, it would render our

legislature inoperable if we did not at least assume as such, for the sake of practical

jurisprudence. As Scalia noted, in his view form is everything.

In the special case of Constitutional interpretation, Scalia’s claims become more difficult.

Here he argues that due to the special nature of the Constituion’s text, it is apparent that general

principles are articulated, rather the narrow enactments. He uses as an example the First

Amendment. In a completely narrow reading this amendment only protects the right of free

speech and press, but does not speak to the free use of telephones or electronic publishing. Scalia

rejects this reading, and states that in the context of The Bill of Rights, it is apparent that speech

and press are stand-ins for general principles of communication. One might object that this

departs from the text and speaks to intent, but he will counter that the text itself bears out his

expansive interpretation.

To elucidate the limits of its expansive language, he presents the counter example of the

Eitght Amendment. The prohibition on cruel and unusual punishment is certainly expansive,

general language, but he notes that the death penality cannot be included in these categories

because it is considered in the text of the Constitution itself, in the due process clause. Again,

Scalia binds himself to the plain meaning of the text as such. However general the meaning of

cruel and unusual is, it is apparent that execution is not included in these categories. Simply put,

where the Constitution is vague, its meaning is open for construction by judical authority, where

it is explicit it is not. In his comment on Scalia’s lectures on this issue.

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An interesting corollary of Scalia’s contextual approach, is the importance of a “dated”

rendering of textual meaning. In his view, we cannot interpret the Constitution according to the

plain language of our times, but only according to common usage when enacted. This stipulation

is consistent with the values of protected expectations mentioned above, but has special

importance when applied to the Constituion. The Cosntitution, according to Scalia, is manifestly

a document that seeks to make permanent the values of the group that enacted it. He argues that

if the framers wanted to simply set a system of governement that would change as the times

changed, there would be no need for a Constituion, because they would trust future generations

to act according to their own sense of justice. Therefore, he claims that the very extistance of a

Bill of Rights, indicated that the text should eb understood in a dated sense, as it is an inherent;y

“counter-evolutionary,” conservative document. Thus, despite the seeming appeal to the framers

intent, Scalia avoids this pitfall in stating that the totality of the document itself speaks to its

“dated” interpretation.

Thus Scalia’s textualism can be seen as a coherent mdoe of interpretation that views both

minor statutues, and the Constitution itself in a singular, coherent interpretive framework. As

was mentioned above, Scalia’s insistnec on this device of interpretation stems from a

commitment to the Conventionalist notion of protected expectations as a central virture of

legitimate government. While this view of law has its own objections, Scalia’s practical

extention of those views cannot be attack as inconsistent or faulty in their own right.

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Jurisprudence Final Exam – Fall 2010