METAPHILOSOPHY Vol. 22, No. 3, July 1991 002Ck1068 $2.00

BOOKS

REVIEW ARTICLE

LAW, INTEGRITY, AND INTERPRETATION: RONALD DWORKIN’S LA W’S EMPIRE

STEVEN ROSS

In some respects, this is an ambitious and interesting book. In others it is a rather disappointing one. Law’s Empire (hereafter referred to as LE) is the bearer of several different kinds of ambitions. Here as elsewhere 1) Dworkin is concerned to mount what are by now rather familiar criticisms against positivism as a legal theory and to argue that these criticisms lead inexorably to the conception of law Dworkin thinks correct. Special to LE is 2) the claim that this conception of law is complete only when understood against a political ideal here developed for the first time, an ideal called “integrity” and 3) the further claim that acknowledging this ideal in the right way will go hand in hand with developing the most satisfactory theory of political community. Because, as in his other works, Dworkin seems to believe that we must think of the legal decisions generated against the conception of law he believes right as ‘objective’ in some rather strong way, 4) Dworkin reaffirms his commitment to his “one right answer” thesis and once again offers what are - in the opinion of this reviewer - some extraordinarily bad arguments against some awfully thin opponents to this effect.

I will not spend all much time with (1). Dworkin’s anti-positivist argument has generated a great deal of critical response over the years, but those who turn to LE in the hope of finding a more subtle counterargument in return will be sorely disappointed. I will sketch how Dworkin’s argument and the positivist’s response to it can be made out, and then move on to (2) and (3). Here are not only the most original and interesting parts of LE but also I think the best argued, though this is not to say there are not difficulties. Dworkin does I think succeed in defending integrity as a distinct ideal and in showing that this ideal has a distinctive place in a full blown theory of legal-cum-political community, but this turns out to mean less than Dworkin thinks it does. Finally, I will argue that what “commitment to integrity” can mean must be understood against a more plausible account of interpretive objectivity than the one Dworkin is committed to. I will conclude by looking closely at the issues raised by (4), at Dworkin’s argument concerning objectivity in hard cases, and take up what the failure of that argument implies for our sense of law.

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I . The Anti- Positivist ArgumentlThe Positivist’s Counterargument Dworkin’s argument against positivism may be summed up as follows. Positivism must hold that what the law is is always a matter of fact - institutional fact to be sure, but fact nevertheless (“does L pass the right test of pedigree?”) - and so positivism can make no sense of theoretical disagreement about the grounds of law. Further, the laws so identified must be thought of as having a literal meaning, quite apart from any political or moral aims they may advance, and it is these literal meanings that must always be enforced. When these meanings do not decisively determine a legal decision, the judge has discretion to decide the case either way, but ‘discretion’ means his decision is ‘not legally determined’.’ This picture of legal decision making fails descriptively in that it fails to do justice to how judges do deliberate in important ‘cases of principle’ like Riggs v. Palmer.2 Naturally, it also fails normatively, as an account of what we would want judges to aim at when offering interpretations. Hence it must be rejected.

That this account of the law fails in these ways cannot be doubted; what can be doubted is whether Dworkin’s positivism accurately describes what positivism must be. The superior positivist (SP)3 can reply that every charge leveled against positivism in the paragraph above is false. SP readily admits that theoretical disputes about the grounds of law can and should occur, but denies that positivism fails to be able to make sense of this. SP also denies that he is some kind of closet existentialist, as he always seems to be when in Dworkin’s hands, with ‘judicial discretion’ being some kind of unconstrained leap into the legal void.

Positivism does claim that L is law if L falls out of the right rule of recognition. But, in the first place, R may be a rule of recognition without R serving a clear epistemic purpose such that we can always say for any L whether or not L is law. R may simply serve a semantic function - that is, say what it is we are concerned with when worrying about the law without making it a matter of ‘plain fact’ how this worry is to be worked out. For example, the rule of recognition might be “God’s will is law” or “law is what is morally right”. One might reply on Dworkin’s behalf that this semantic/epistemic distinction makes things too easy for the positivist, and if R could be understood as simply Page references are to Law’s Empire (Harvard) 1986.

p. 3744 , see esp. 4142 . In this case, the New York State statute governing wills was set aside and the will was

made void on the grounds that the beneficiary of the will was also the man’s murderer, even though no rule stipulating this kind of exclusion can he found in the statute.

The argument that follows is almost entirely drawn from Charles Silver “Elmer’s Case: A Legal Positivist Replies To Dworkin” Law and Philosophy 6 (1987) 381-399 and Jules Coleman “Negative and Positive Positivism” Journal of Legal Studies 11 (1982) 139. The point about conventionalism having access to general understandings of itself, the parallel with Quinean science, is mine.

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serving a semantic function, the whole theory threatens to become trivial. It is not clear that this is so. The positivist can still say that some Rs would serve an epistemic function, and in any event, positivism would remain informative at least in the sense that it would remain intact as a theory of what law is, i.e. that which obtains in virtue of some set of social conventions. But let us set this aside and suppose that SP agrees to traffic in rules of recognition that provide epistemic guidance. It still will not follow that acknowledging such a rule plus agreement about the historical facts, narrowly understood, means that no theoretical disagreement about the grounds of law can exist.

This point is best made by first clearing up the charge concerning ‘discretion’. In saying that law is grounded in convention, the positivist is hardly limited to referring to things like explicit political ceremonies. Implicit or secondary conventions not only ‘also’ exist; since Wittgenstein, we should be used to finding these even more important. A practice can be said to include some convention C if those within the practice characteristically explain their behavior by reference to C, if C figures centrally in people’s mutual expectations when within the practice, and so forth. Now in law, that judges must defend their decisions wholly by legal arguments is just such a ‘secondary’ convention; that we must “do law” in a certain way is undeniable, even if it is never ‘said’ anywhere ‘in law’, and this is just to say a certain conception of legal argument may be taken to be a constitutive convention of legal practice. Dworkin’s accusation that for the positivist, should statute or prior holding run out then ‘anything goes’, takes it that if these things fail to give us directives concerning procedure, then convention must be silent. But this argument goes through only if one equates ‘convention’ with something like ‘what is explicitly encoded’. And it is just this interpretation that is neither fair to the positivist nor plausible in its own right.

And, just as positivism can point to a particular conception of legal procedure as grounded in unencoded conventions, so positivism may also refer to unencoded understandings in its conception of the substance of law. This seems like Dworkin’s turf: the recognition of unencoded understandings ‘behind’ statute that Dworkin speaks of as ‘principle’ is just where positivist theory must be unsatisfactorily silent. Or so Dworkin always says. This charge cannot be pursued in the detail it deserves. But I will say this: if Dworkin were right about this, legal positivism would be the only example of conventionalism unable to avail itself of the implicit understandings behind its conventions when making sense of itself. And even if this unique defect were true of positivism, I do not see why the super-positivist would be saddled with it. For example, the Quinean scientist claims that the truths of science just are the conventional understandings we are prepared to assert; this hardly prevents him from countenancing access to whatever implicit, perhaps hitherto unacknowledged, understandings lie behind these assertions

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should “trouble strike”. Why should the positivist not be able to say the same kind of thing about his legal conventions? I do not see why if the positivist sees the law as convention, he is therefore prevented from thinking of these conventions as forming a totality, and our understanding of any part sensitive to our sense of the whole.

Set the issue of “principles behind statute” aside; the positivist is surely able to refer to unencoded understandings when he refers to common law. And positivist judges concerned to respect common law might well disagree over what the grounds for identifying common law are, (thus, contra Dworkin, disagreeing over the content of the rule of recognition), and how, in light of past decisions, the content of common law is to be described. Further, they might also disagree, once what common law requires has been agreed upon, how much weight common law should have if it conflicts with encoded statute. Charles Silver has persuasively argued that what really divides the court in Riggs is not, as Dworkin would have it, whether we must enforce the statute’s ‘literal’ meaning or ‘read’ the statute in light of some deeper ‘principle’, but simply: ought we here to go with statute or with common law?4

ZZ. The Idea of Integrity Dworkin is wrong I think to hold that the positivist cannot make reference to whatever justificatory principles may be said to animate the law. But he is certainly right to hold that such reference occupies a central place in judicial decision making, and that no satisfactory theory of law can leave this further fact out. Because legal findings are asentially interpretive, and because reference to general principles will figure in the interpretations we offer, we need a norm we can apply to our use of these principles from which we can assess and resolve our interpretive difficulties.

Fair enough. But Dworkin goes on to point out that our conception of law/our account of what ought to guide our legal interpretations also resonantes as a political conception. In saying what sorts of things citizens bound by law are entitled to appeal to, we are saying something about the political relations that obtain between them. So, Dworkin argues, our search for the right norm in legal interpretation is fused with the search for the best account of political community, and our justification of the former (“why this legal norm?”) will flow from the justification we give of the latter (“this is the most complete or satisfactory political conception”). The norm that both generates correct interpretations of statute and generates the best conception of political community is found in an ideal Dworkin coins and develops expressly for the task at hand, the ideal of Integrity.

Integrity is Dworkin’s term for a particular virtue of political and legal systems. To say a legal system possesses integrity is to say that it “speaks

Silver op cit.

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with one voice, acts in a principled and coherent manner toward all its citizens, extends to everyone the same substantive standards of justice or fairness it uses for some”5. For example, commitment to integrity rules out a priori - i.e. regardless of whatever else may be said on their behalf - what Dworkin calls “checkerboard” statutes, the statute that would settle our differences of principle by encoding them and distributing them randomly across relevant instances. We do not resolve our differences over abortion by enabling only those born in even years to have them, or resolve our disputes about which conception of manufacturer’s liability is the best one by letting one conception apply to automobiles and its rival apply to appliances. The idea is ruled out from the start, but as Dworkin argues, without access to integrity as a distinct norm, it is not easy to say why. There is nothing obviously wrong with checkerboard statutes from the standpoint of fairness since each voice gets some representation under this arrangement. Justice is a matter of parties being granted or denied rights or liberties they are entitled to. Each party to a dispute will see a checkerboard statute as containing more injustices than the uncomprised alternative she favors, but just because each party has some reason to prefer a different statute to the checkerboard one hardly entails they reject in advance the checkerboard as a solution to their differences.6 If the checkerboard is to be rejected, Dworkin argues, it must be because it offends against a distinct ideal. And just this is the ideal of integrity. A state that allowed such statutes “must endorse principles to justify part of what it has done it must reject to justify the rest”.’ If the state is committed to integrity, to “speaking with one voice”, this arrangement must be rejected out of hand.

This last expression points us towards the way social institutions in general may be assessed from the standpoint of integrity. Do these “speak with one voice”, which is to say, do the principles behind our social practices admit of a coherent account?” To show that they do is to show that the principles we appeal to in order to account for or justify practice X are not rejected or contradicted when we turn to practice Y. If there is conflict, commitment to integrity requires we affirm whichever principle is deemed the more central one in our political culture, rejecting or reforming the rival principle in its light. For example, sexist tendencies to discount the autonomy of women violate a culture’s integrity should that culture hold a more general principle affirming the value of the autonomy of persons as such. Integrity requires such tendencies be reformed in light of the culture’s deeper commitment to the more fundamental justificatory principle.*

’ p. 165. ‘ p. 178-180. ’ p. 184. see p. 204-5.

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The problem however is that whether two practices are judged ‘consistent’ is a function of whether the justification of each is deemed a good one, and without any guidance on this prior notion, commitment to integrity guarantees very little. Consider the requirement of “beyond a reasonable doubt” in criminal cases, the less exactly standard of “the best case” in civil law. A Martian might say: “I don’t get it; it’s guilt or innocence in both cases; why not just have ‘the best case’ requirement across the board?”. To say that we see no inconsistency of principle here is just to say we think the reasons we give for operating differently across the two domains are good ones. And so it will be in any case where the charge of “no integrity!” is leveled. The defender of the practice will reply that as the justification of the ‘deviant’ practice is a good one, integrity is preserved. In other words, the real battle will always be fought on the level of justification assessment.

I am not saying the idea of integrity is an empty one; it is not. The explicit articulation of the principles that lie behind our culture in order to see whether they in fact “hang together” is the first step in any cultural (or legal) self criticism (or self justification). My point is that Dworkin puts integrity forward as a substantive norm, one that in fact decisively points towards his own “rights-intoxicated’’ conception of law and politics. In fact, integrity is more like what Rawls calls a “formal constraint” on a political or legal system.’ Like publicity or stability, we will want our legal systems to possess integrity, but formal constraints like these do not entail any particular account of law so much as give us the terms in which competing accounts ought to be described. The same way Rawls only considers that form of utility theory that would meet the publicity requirement and see how well that fares against other theories that do too, we should only consider various legal conceptions (say positivism) in so far as they are assumed to be instantiated with integrity. Dworkin takes it that only his account of law could “really” possess integrity. This is unsurprising: since Dworkin’s positivist is unable to speak of any principles “behind” its statutes, he lacks one might say the right raw material for this virtue to begin with. (Perhaps Dworkin’s positivist would be like the “scientist” who only makes observation statements and refuses to say one thing more; of course his “science” won’t have “integrity”.) The result is a predictably cheap victory for Dworkin’s jurisprudence, disappearing as soon as one concedes that a conventionalist understanding of law no more makes principle-talk impossible that utility theory makes obligation-talk impossible. Just because a conception of law might be more parsimonious in its appeal to substantive rights than the conception Dworkin favors does not mean it cannot articulate any principles explaining itself, and such a system would seem to be able to aspire to as

John Rawls A Theory ofJustice (Harvard 1971) section 23.

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much integrity as any. Different moral or legal conceptions will give us different ways of making sense of the central concepts of moral or legal life. But the idea that one’s rivals are not even in the ballpark, not even able to pass the literacy test for theory construction as it were, cannot be right.

I conclude then (i) that integrity is a formal rather than a substantive norm, the application of which is logically dependent on our prior understanding of what counts as a “good justification” and (ii) acceptance of this norm will not on its own favor Dworkin’s jurisprudence over any other.

III. Integrity and Obligation On Dworkin’s view, commitment to integrity is inseparable from constructing what he calls a “true Community”, and only when persons can see themselves as members of such a community does the right account of political obligation emerge. Dworkin argues we are best off thinking of membership in a political community against what member- ship is like in ordinary associations, such as our college department or family. This way we can make sense of various things that a purely contractual account of political community cannot, such as the way in which our obligations to one another are not necesarily explicitly chosen but rather arise in part out of a contingent historical story. But even within an association, obligations must be thought of as answering to a certain level of reciprocity; should that not obtain, one’s obligations to another association member diminish or disappear. Further, in an association, persons will see themselves as tied together by certain general understandings and commitments to mutually shared ends. Conflicts will be resolved by appealing to these understandings or ends - perhaps by articulating them explicitly for the first time - and working out what our commitment to them must in this case mean.

A full community, a “community of principle” must therefore be committed, and explicitly so, to the norm of integrity, since members of such a community would want the general principles that inform their relations to be as consistently integrated into these relations as possible. Only in that case could a community be said to be characterised by equal concern for the welfare of all. Our judges, when offering readings of statute or prior holdings, therefore ought to do so against the norm of integrity. This means that the conceptions of justice, or fairness or due process that inform our law ought to be extended to “their natural limit” wherever possible.

But once again, because integrity names a formal constraint upon a legal system and not a substantive goal, the connection between integrity and community is uncertain. Whether or not a system has integrity is the question whether or not its fundamental principles of justice or fairness (for example) are consistently elaborated throughout

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the culture as a whole, but as we saw before, this question comes down to the question as to whether the distinctions one points to in justifying differences are sound ones. Suppose funds and opportunities are set aside just for minorities. Does the system that claims to be committed to fairness and countenances this have integrity or not? When the U.S. government does this, it seems so. When South Africa sets certain things aside just for certain people we find the reasons unsatisfactory and the overall system without integrity. But one who bought the ideology of racial separateness would judge a government with a homelands policy to possess integrity, since everything that “ought” to be acknowledged gets acknowledged and consistently instantiated throughout. I am not saying that this means our moral assessments are themselves not assessible. I am only saying that commitment to integrity is simply the commitment to having good justifications, and everyone claims to be committed to this much. Our own differences over issues like affirmative action or pornography or abortion are just this, differences over how the various moral and legal understandings in the background of our culture ought to be carried forward. That both sides to these disputes are equally committed to doing this under some description hardly makes for much of a “community” between them, since each accuses the other of carrying forward its narrative “consistently” at the price of misdescribing some relevant fact (the fetus is a person, this is a racist society, women are being humiliated). No one in these disputes holds that their opponent could not elaborate the justificatory principles she is here referring to into a complete vision of society; one thinks instead that the world so described is not the world as it is or ought to be. Dworkin claims we have in integrity the norm that ought to guide our legal interpretations. My criticism is that no one could disagree. No one could simultaneously think their reading of statute right and also think their interpretation lacked integrity, since that would amount to saying both that X is right and that there is some relevant aspect of the matter one has overlooked. Integrity cannot simply be a matter of applying norms from the top down as it were; necessarily, we want to apply our norms in a way that is appropriately responsive to the relevant contours of the facts below. But then everything lies in how these “facts” get described. A shared commitment by both sides to “respect the right description” is too easily given to guarantee much besides an extra level of irritation at one’s opponent for being so damn blind.

IV, Integrity and Legal Interpretation These criticisms could of course be defeated if Dworkin were able to show that commitment to integrity as guiding norm in legal interpretation generated readings of statute we could think of as objective in some sufficiently strong sense. Let us now turn to this part of Dworkin’s

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argument: just what does it mean to offer legal interpretations against the norm of integrity? Under law as integrity:

1. We assume that the law/our particular legal tradition may be interpreted as structured by a coherent set of principles about justice and fairness and procedural due process that are to be applied to whatever fresh cases come before us, maximizing the degree to which each person’s situation is fair and just according to the same standards.”

2. When a judge (or Dworkin’s “ideal adjudicator”, Hercules) claims this structural status for principle X, he must be understood to be claiming that X not only “fits” but justifies some complex part of legal practice. ’ *

3. When faced with cases that Hercules interprets as governed by prima facie competing justificatory principles, more or less equivalent in “fit”, law as integrity requires Hercules to be guided by that interpretation which shows our legal practice to be the best it can be from the standpoint of substantive political morality. l2

4. Propositions of law generated in accord with (1)-(3) are true. If reading some statute in light of one principle over another enables us to see the legal practice of the community “in a better light”, then this reading tells us what the law is, and so the rights secured via this reading are not “invented” but are rights citizens have had throughout the life of the relevant legal tradition.

Naturally, all this talk of “the best possible constructive interpretation”, “a better light”, “the best from the standpoint of political morality” and so forth raises questions concerning the kind of objectivity Hercules can claim on behalf of the readings he offers. Dworkin cautions us not to take the actual answers he gives to the particular legal controversies he takes up as defining law as integrity, though of course he believes his commitment to integrity in law requires the particular interpretations he gives.” Law as integrity is essentially given in an approach to law; specifically, in rejecting any dichotomy between “making law” and finding it, and in accepting the criteria laid out in (1)-(4) as the appropriate ones to guide us in our interpretive readings. Certainly Dworkin is right to separate commitment to law as integrity from commitment to any particular legal holdings. The same way the philosopher of science defends an account of what scientific theories must be like, not the particular theories he believes true, so the proper object of a theory of law would seem to be an account of the aspirations of legal interpretation, not, unless we are talking about very obvious

lo p. 243. p. 228.

” p. 239. p. 248-249.

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cases, any set of interpretations themselves. Hence Dworkin concedes from the start that two judges could accept the norms of law as integrity and give two different accounts as to what fidelity to them entailed; so for that matter could Hercules on two different occasions after further thought .14

Yet, perhaps because he fears that without some strong version of interpretive objectivity, a full defense of judicial authority or the objectivity of our legal rights would be unavailable, Dworkin remains committed in LE to defending some version of the “Right Answer Thesis”, (RAT), the claim that there is a right answer in hard cases. Because the idea of a right answer in hard cases is so counterintuitive, Dworkin, here as in earlier writings, tends to be somewhat elusive about just what it means to claim this. In LE, the suggestion is that the RAT is simply what is left standing once the rather unconvincing “sceptical” challenges to interpretive objectivity he considers have been sent packing (presumably back to Philosophy 101 where they belong). But even against these “opponents” Dworkin’s arguments are extraordinarily thin. I will now turn to (i) Dworkin’s picture of legal interpretation (ii) his arguments against “scepticism” and (iii) what the RAT can and cannot mean. (iv) Finally, I try to allay the worry that probably motivates Dworkin’s commitment to the RAT in the first place, the thought that without some strong sense of objectivity here, legal practice could not really deserve our respect.

1. Dworkin compares a judge’s formulation of a legal interpretation to an imagined literary genre, the chain novel. The basic idea is that an “author” here is also a critic; his story is also an interpretation, and his interpretation must be shaped by critical judgments along two dimensions. The first is the dimension of “fit”. The interpretation that informs our narrative need not fit every bit of text, but it must “flow throughout the text”, having “general explanatory ower”, leaving no “major structural aspect of the text” unexplained.‘ Some interpreta- tionsharratives would of course be disqualified on these grounds alone; we must seem to be continuing the story we have, not beginning a new one. Should more than one interpretationharrative meet this require- ment, condition (3) above comes into play, and the judge seeks the reading that makes the law the best, all things considered, from the standpoint of political morality.

How appeal to this further norm might move us towards interpretive consensus is anybody’s guess. Dworkin simply seems to assume that following this directive will be identical with going with those interpreta- tions of statute that reflect his neo-Rawlsian commitments. The Nozickian libertarian will surely beg to understand the idea of the “best

l4 p. 239-240. l5 p. 230.

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substantive political morality” differently. What about the first condi- tion, that of “continuing the narrative we have, not beginning a new one”? Here again, the difficulty comes in thinking that commitment to this kind of goal might generate much in the way of substantive results. The distinction between “continuing a narrative” and “beginning a new one” is an eminently reasonable one, but it would admit of straightforward application only if what constituted the facts of the narrative so far is itself fairly non-controversial. If those facts are described in terms of a controversial vocabulary, then in your opponents eyes, you have not continued the narrative at all. Imagine a judge committed to law as integrity who sees parts of our legal narrative so far in feminist terms. Her conception of what is so far the case, and so her account of how the legal narrative would be now continued in way possessing integrity would be rejected by one who rejects as unsound the interpretive categories she employs to begin with. In her opponent’s view, this is beginning a new story, not continuing the old one. My point is that if there are antagonistic conceptions of what constitutes the proper account of the object to be interpreted, this disagreement will be perfectly mirrored in an inability to apply the continuatiodnon- continuation distinction non-controversally.

2. Assume these difficulties are settled. Assume a community of Dworkinian Herculea whose differences occur within a commonality of political sensibility. Dworkin imagines two challenges to the readings they generate, that of the “internal” and “external” sceptic.16

Dworkin’s “external sceptic” is presented as hostile to interpretation as such. He claims that when we offer moral, legal or aesthetic opinions, these cannot be “really objective” since they cannot be said to match any moral legal or aesthetic “facts” “out there in the fabric of the universe”. (Where did Dworkin dig up this fellow?) Since no one ever thought legal interpretation trafficed in Platonic Forms, this “objection” is a non-starter and is easily set aside.

Dworkin’s internal sceptic is not quite so blundering. She claims that it just so happens that there is no satisfactory interpretation of X available. X just happens to be complex in a way that makes impossible any clear interpretive account that both fits the bulk of X and enables us to read X with some explanatory power.

It seems clear that Dworkin takes the challenge of the “internal sceptic” to be that of the Critical Legal Studies movement. But this presentation of the challenge cannot be quite right. Given the intimate connection between interpreting X and describing X, this reading of “internal scepticism” winds up committed to the claim that there is no satisfactory description of X. That of course is absurd; there is always

’‘ p. 274.

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some true description, and so there is at least that satisfactory one. Of course, the internal sceptic is really saying that the true description is one that leaves us with no single way to go on, to apply what is true of X to further cases of this kind, and so forth. Dworkin is surely right to counter that simply because a self-contradictory account of X is in some sense possible, this in itself cannot prove the kind of account law as integrity seeks is either unavailable or wrong: “Nothing is easier or more pointless than demonstrating that a flawed or contradictory account fits as well as a smoother or more attractive one.” Fair enough. But Dworkin goes on to say that “the internal sceptic must show that [his] flawed and contradictory account is the only one a~ai lab le” . ’~ And this seems absurdly strong. The internal sceptic does not have to show that his account is “the only one available” anymore than Dworkin does. Each must simply seek to show that their account is the best. For the adherent of law as integrity, this means offering an account that successfully handles exactly those things the CLS adherent points to as rendering the ambition of coherence, in some particular case, unattain- able. Clearly, past a point, there is little point in pursuing any argument between Dworkin and an adherent of CLS in the abstract, since any interesting sceptical claim must be tied to a particular difficulty with a particular legal topic in a particular legal culture. When Dworkin offers his counter reading, we then must just wade in and see which reading we think the more plausible. Certainly the possibility of there being equally compelling but distinct readings of some aspect of law cannot be dismissed ahead of time. That such a reading has the consequence that it is now unclear just how one might go on can hardly of itself prevent it from being judged the superior interpretation.

3. That different readings, sceptical or otherwise, are prima facie possible takes us to the real difficulty. This is the problem of relativity, not scepticism. The real difficulty for the RAT arises from the thought that legal interpretation is a rather well ordered language-game, and that there wiH be hard cases where, given the complexity of the relevant data, and the complexity of the rules, there will be incompatible interpretive claims available to competent judges. Dworkin cannot deny this possibility, but his handling of how one might see in it a serious challenge to the RAT constitutes a true low point in LE. I quote extensively here so there readers can judge for themselves as to the justice of my language. Here is Dworkin’s account of how the sceptical challenge to Hercules and the RAT might go (the numbering has been added to aid subsequent discussion):

(1) Hard cases are hard cases because different sets of principles fit past decisions well enough to count as eligible interpretations of them. (2) Lawyers

l7 p. 274-75. See also the extensive, and excellent, discussion in footnote 19.

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and judges will disagree about which of the two is fairer or more just, all things considered, but (3a) neither side can be ‘really’ right because (3b) there are no objective standards of fairness and justice a neutral observer could use to decide between them. (4) So law as integrity ends in the result that there really is no law at all in hard cases like McLoughlin. (5) Hercules is a fraud because he pretends that his own subjective opinions are in some sense really better than those of others who disagree. (6) It would be more honest of him to admit that he has no grounds for his decision beyond his subjective preferences.”

Let us look closely at the argument above. (1) constitutes a definition of hard cases; it is unassailable. Notice the term ‘eligibility’ here, a much better one than ‘true’ in this context. (2) follows trivially from (1); if A and B are equally eligible interpretations, lawyers and judges will naturally differ over whether A > B or B > A. (3) is where things begin to go a bit awry. (3b) would better expressed were Dworkin to have his challenger deny the possibility of neutral standards rather than ‘objective’ ones. As it stands, Dworkin can have his opponent suggest that whatever standards Hercules did appeal to would be the opposite, i.e. ‘subjective’, and that charge is of course a notoriously easy one to refute. (3a) - that neither side can be ‘really’ right - allegedly follows from (3b). Once again, nuance is everything. If Dworkin had had his opponent say “neither side can be conclusively right”, or better yet, “neither side can be really wrong”, the claim would be far sounder. (4) in no way follows from (1)-(3), even as Dworkin has put them. The correct sentence here should be: “So law as integrity ends in the possibility of there being two laws; or, with ‘what the law is’ being describable in two distinct ways.” In making his challenger draw unnecessarily radical conclusions from his argument, Dworkin simply helps himself to an unconvincing victory. With (5 ) , our challenger has become something of a lout seemingly determined to provoke gentleman Dworkin into teaching him a lesson. Such inflammatory language certainly does not describe my Hercules! My Hercules simply argues for his eligible interpretation (notice that his once ‘eligible’ interpretation has become a ‘subjective’ one) and acknowledges that while he has good reasons to prefer A to B, those who offer good reasons in preferring B to A are not clearly disqualified as incompetent by the criterion of integrity .

It is this last point that is crucial. Kant noted that there was a sense in which every empirical judgment could be said to “contain” the expression “I think that . . .”. Analogously, we can certainly admit tnat every legal judgment (“Bakke has no right to admission at Davis”) “contains” the expression “I think it is right to say . . .”. (“Of course I think it is right to say this; that’s why I’m saying it.”) In this form the

p. 266.

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RAT amounts to very little; we are merely saying that the judgments lawyers offer are judgments of which they are persuaded. Let us call this sense of the RAT the ‘linguistic’ sense. Can commitment to the RAT amount to any more than this?

The real issue it seems to me is this: in saying X is the right answer, what sort of reasons are we committed to saying our opponent has overlooked should he disagree? In some contexts, our reason for saying X is the right answer does commit us to saying anyone who disagrees is simply incompetent with respect to the practice in question. If you cannot see that the right answer to “2 + 3” is “S’, then you clearly do not know what adding is. And there are, undoubtably, legal examples where this kind of connection between understanding the practice and seeing that X is the right answer obtains. In kinds of these cases, to understand what law is just will entail seeing that here the law is X. But in a hard case, we cannot trump our opponent without appealing to norms or to ways of realising them that beg precisely the question at issue. If, in a conflict of this sort, Hercules were to claim that his criteria, whatever they were, or his way of understanding them, whatever that was, alone demonstrated competence with respect to the practice of law itself, then he would be a fraud. In defending our intepretation, we can of course elaborate upon it in as much detail as necessary; we can try and show it is the best. What we cannot do is ascend a level and present our interpretation as alone falling out of what it is to be competent with respect to the practice itself. And as far as I can see, unless the possibility of that kind of justificatory move is understood to be in the background, the claim that there is a right answer cannot be meant in more than its ‘linguistic’ sense. If in saying of our argument that it is the right answer we are not prepared to point to any further justification moves than the ones we have included in the content of the interpretation itself, then just what do we add by this empty act of baptism?

4. If the idea of there being a right answer in hard cases cannot be made sense of in what might be termed a substantive sense, then how are we to think of judicial authority and the legal rights that are generated through legal interpretation?

I want to conclude by briefly arguing that the practice of legal judgment is not rendered incoherent by acknowledging that the attributions we make will sometimes be a function of judgments that are understood, even by those who make them, as having no non-circular trump against at least one rival. My claim is not that evaluative practices ‘can’ admit this of themselves and still be stable. It is rather that given what evaluation is, it would be more accurate to say that there just is no other way to understand the sort of stability evaluation in fact has.

Consider the evaluative activity behind philosophy journals. Some of

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our articles wiU be accepted by some editors and rejected by others, even should we assume formal identity in policy and standards. Yet it does not seem we need some substantive version of the RAT here to save our journals from being unmasked as “arbitrary”. Or consider the referee in professional sports. Here we even have a fixed set of penalties and very clear rules governing their use. All the same, there will be competent disagreement in hard cases over whether X constitutes a foul. We accept this, and we accept that who wins or loses a great deal of money and fame may hang in the balance. That’s the kind of enterprise judging (articles, athletes, arguments) is. (One wants to ask: what else could it be?) We are satisfied I suggest if the judge (1) demonstrates competence with respect to all clear cases, cases clearly governed by constitutive criteria, and (2) is able to defend his judgment in hard cases by reference to considerations the first order discipline recognises as relevant, in ways the first order discipline recognises as satisfactory.

Now obviously, criterion (2) can be met without it always being the case that it can be uniquely met, and in that case, there will be no non- circular argument against at least one rival. But what is crucial to see - and again, the examples of sports and journals should help us see it - is that this fact does not need to be corrected for the predicates our evaluative judgments apply (“did interfere with the player”, “is worthy of publication”, “does not have a right to be admitted to Davis Medical School”) to be deemed genuine or in good order.

Legal judgmentshterpretations are to be sure unlike most others, if only in the unusually large list of constraints that operate upon competent judgment formation. But no list of constraints alters the fact that to say we have a legal right to X is just to say a competent judge has offered a well ordered argument regarding the relevant considerations that says so. This way of construing the predicate “has a right to” is indeed compatible with the possibility of our having been, in a hard case, denied a right to X, but this, I submit, is not a problem - within the practice of law - any more than the analogous fact constitutes a “problem” when within the practice of journal reviewing or referee-ing. And it is this fact - again, not the fact that evaluative judgment has this structure, but the fact that it is not a problem that it has this structure - that we just must learn, as philosophers, to swallow. Nor is it clear to me what the point of resisting this fact could be. Philosophical analysis can only mirror, not alter, whatever stability the first order discipline has. Our science does not first become sound through the empty posits of metaphysical theory. Nor will our legal practice first acquire legitimacy in virtue of some fictional posit like right answers in hard cases.

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