striking back at the empire: a brief survey of problems in dworkin's theory of law

L A R R Y A L E X A N D E R

S T R I K I N G B A C K A T T H E E M P I R E :

A B R I E F S U R V E Y O,F P R O B L E M S I N D W O R K I N ' S

T H E O R Y O F L A W

I. I N T R O D U C T I O N

In Law's Empire 1 Ronald Dworkin continues the jurisprudential enterprise that he began almost two decades ago and that he first fully fleshed out in Taking Rights Seriously. 2 Although he has modified some of his original positions, sometimes in response to scholarly criticisms, 3 his basic theory remains the same as it was. Most of what has changed from Taking Rights Seriously are the labels. In Law's Empire, constructive interpretation of social practices has replaced the more pedestrian technique of looking at what lawyers and judges claim. And fashioning a community based on integrity has replaced discovering the principles implicit in the law. These changes in labels, however, do not denote changes in the substance of the basic theory.

Dworkin's theory was and remains quite bizarre. One can approach legal theory from a number of angles and ask, for example: what are the authoritative decisions that institutions have taken regarding what we ought to do.~ (the positivists' question); what should we predict officials will do in particular situations.~ (the legal realists' question); or, what ought judges or citizens to do in light of the authoritative decisions our institutions have taken.~ (the sophisticated natural lawyers' question). Dworkin's basic question is none of these. Rather, Dworkin asks: what are the most attractive political/moral principles that, if followed, can account for most of the coercive political decisions our society has taken.~ That is a very odd question, for unlike the other questions of legal theory, its relevance to any concern that

1 1L Dworkin, Law's Empire (Cambridge, Ma.: Belknap Press, 1986). All page citations appearing in the text will refer to pages in Law's Empire. 2 IL Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977). 3 See, e.g., notes 6-10 and 12 infra.

Law and Philosophy 6 (1987) 419-438. © 1987 by D. Reidel Publishing Company.

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anyone might have about "law" is quite opaque. Although Dworkin tries gamely in Law's Empire to make a case for his question's centrali- ty, he never succeeds in dispelling the sense o f the question's oddity.

I propose to survey very briefly a number of problems that beset Dworkin's legal theory. But the underlying cause o f all o f these problems is that Dworkin's basic question is a very unusual one. My armchair diagnosis o f why Dworkin takes the odd tack that he does is that, like so many others, he believes that legal positivism and natural law are two opposing answers to the same question rather than complementary answers to complementary questions: one theoretical, the other practical. If positivism and natural law are theoretical and practical complements, not contradictories, then there is no third theory that lies between them for Dworkin to stake out. There is a deeply paradoxical relation between authoritative norms (the positive law) and what we ought to do (moral principles), but there is no middle ground between them.

II. D W O R K I N ' S T H E O R Y OF LEGAL D O C T R I N E

A. The General Approach 4

How on Dworkin's account do we discover the law of our community.~ In short, we begin where the legal positivists begin, with case decisions, constitutions, statutes, and administrative rules - the coercive political decisions our community has made. We then "interpret" those decisions and canonical rules to be the best decisions and rules that they can be. What this means more specifically is that we first imagine that most o f the political decisions were, contrary to fact, motivated by one coherent set o f political/moral principles. I say most, not all, because a set o f political/moral principles - a political morality - need only "fit" with a threshold number o f political decisions to be eligible for consideration. Some political decisions may be treated as "mistakes", though not too many.

4 Dworkin's general approach is gleaned from chapters six and seven in Law's Empire.

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Several political moralities may satisfy this threshold o f fit. We then attempt to find that political morality, among the several that fit, that is closest to correct (ideal) political morality. The implications o f that non-ideal political morality together with the small area of mistakes with current force are "the law".

B. What's New?

The core o f Dworkin's approach in Law's Empire to identifying the law of a community is the same as in Taking Rights Seriously. s None- theless, there are a few changes that are worth noting.

In Taking Rights Seriously, one o f Dworkin's arguments for his general approach to identifying the law was that in hard cases - those not covered by a single, clear legal rule - his approach posited the existence o f legal rights that the judge must respect, unlike legal positivism, which denied the existence o f legal rights in hard cases and authorized judicial legislation retroactive in its effect. 6 In an article critical of Dworkin's approach, Michael Bayles and I pointed out that Dworkin's legal rights - rights derived from the principles that consti- tute the most attractive political morality among those meeting the threshold o f fit with past political decisions - seemed unworthy of respect in adjudication since apparently they need not be respected in legislation. 7 Although there were functional differences between courts and legislatures (such as the farter's democratic nature) that might justify letting legislatures but not courts change existing legal rights, Dworkin was not relying on those differences; nor could he, since he was making a conceptual point about law that was applicable across cultures and their various designs o f legislative and judicial institutions.

In Law's Empire, Dworkin has respnded to this criticism by extending his approach beyond adjudication to legislation (176-86). Legisla- tures as well as courts are bound to act on a consistent set of principles. This rules out the enactment of"checkerboard statutes" - those

s See Dworkin, Taking Rights Seriously, pp. 81-130. 6 Dworkin, Taking P, ights Seriously, pp. 44-45. 7 L. Alexander and M. Bayles, 'Hercules or Proteus.~: The Many Theses of R.onald Dworkin', Social Theory and Practice 5 (1980): 267, 280-83.

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that are explicit compromises between two or more coherent political moralities. Moreover, legislative integrity requires not only that each separate piece o f legislation be internally coherent, but also that it cohere externally with all o f the law currently on the books (217-18).

Just as significantly, Dworkin can be read now to require the legislature, like the courts, to attempt to cohere present legislation with past political decisions (at least those past decisions that have affected presently existing people), so that internally coherent statutes that cannot be fitted both with the remaining present law and with enough of the past law are violations o f legal rights. Although Dworkin's explicit discussions o f integrity in legislation seem to indicate that he would require only the coherence o f presently existing law, there are numerous suggestions that integrity places the same demands on legislatures as on courts (217-24, 227-48). And since the ultimate bite o f law is in its application to people over time, coherence must be inter- temporal as well as intra-temporal to be meaningful. A legislature that continually repealed each coherent set o f laws and replaced it with another coherent set o f laws, disregarding the effects on existing people of those earlier sets of laws, would not be acting in a "principled" manner. Past mistakes matter in legislation exactly as they do in adjudication.

Much of the force o f Dworkin's earlier attack on legal positivism's approach to hard cases drew upon his claim that positivism authorized retroactive judicial legislation. Bayles and I ponted out that Dworkin's attack assumed the very point in issue, that is, the existence in hard cases o f legal rights, since otherwise there would be no legal rights to be retroactively overturned. 8 We also pointed out that retroactive legislation was not always immoral or undesirable. 9 Moreover, Kenneth Kress demonstrated that under Dworkin's own approach, mistaken judicial decisions can, by changing the legal data and thus changing the political moralities that "fit" with the data, change the

8 Alexander and Bayles, 'Hercules or Proteus?', pp. 284-85. 9 Alexander and Bayles, 'Hercules or Proteus?', p. 284.


principles and concomitant legal rights that govern transactions occur- ring before the mistaken decisions, l° Dworkin could gain no support for his approach by appeals to our general aversion to retroactive law- making.

In Law's Empire Dworkin no longer relies on the retroactivity argu- m e n t The work that retroactivity did in his earlier works is taken over by Integrity, the name he gives to the requirement that political decisions cohere with the most attractive set o f political/moral principles that coheres with past political decisions (225-26, 254-58). Integrity does much of the same work that the retroactivity argument did, and it binds legislatures as well as courts. But it is a different argument, albeit equally unsuccessful, as I shall shortly attempt to show.

The third significant way in which Law's Empire differs f rom the earlier Dworkin is in its extensive treatment o f the interpretation of canonical legal rules. Here, Dworkin has not so much changed his argument as he has developed an argument that was embryonic in Taking Rights Seriously) 1 In brief, Dworkin argues that canonical legal rules - constititutions, statutes, regulations - should not be interpreted "conversationally", that is, as we would interpret ordinary communi- cations f rom other persons. Rather, they should be interpreted in the same way we "interpret" political decisions other than canonical rules, that is, as the morally best they can be (336-47). We cannot interpret every canonical rule to be what we believe is morally ideal, for then our interpretation might not fit the data sufficiently well (352-53). But among meanings o f the rule that do fit the data above the threshold level, we must choose that meaning which is morally best. (In order for Dworkin's overall approach to be internally consistent, the meaning given the rule through this method of interpretation must

10 K. Kress, 'Legal Reasoning and Coherence Theories: Dworkin's Rights Thesis, Retroactivity, and the Linear Order of Decisions', 72 Cal. L. R.ev. 369 (1984). 11 See, e.g., Dworkin, Taking Rights Seriously, pp. 107-10.

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presumably fit not only with the words of the rule but also with the other political decisions, canonical and non-canonical. 12)

C. What's Wrong?

1. The disintegration of canonical rules. I begin my criticisms of Dworkin's approach to discovering the law of a community with his method for interpreting canonical legal rules. Dworkin's approach of abandoning conventional conversational standards of interpretation leads inevitably to "interpreting" each canonical rule as if it were the rule - or, indeed, the complete set o f rules - that the interpreter regards as morally ideal (subject to the constraint o f fit with other political decisions). Dworkin, o f course, denies this because he argues that the interpretation must fit reasonably well with the rule's words. But without the standards o f conversational interpretation, what are words but sounds and shapes.~ And why can we not give those sounds and shapes the meaning we would morally prefer them to bear? t3 Either a canonical rule comes to the interpreter already bearing a meaning that is independent of how well the rule fits with other political decisions and how morally agreeable it is, or it comes to the interpreter as formless material to be molded as the interpreter desires.

Abandoning conversational standards for interpreting the words of canonical rules is morally undesirable because it is morally desirable that legislative bodies have the ability to settle moral controversies through the enactment o f canonical rules. They cannot have this abili-

12 There is another change in Law's Empire that is worth brief mention. In responding to critics of Taking Rights Seriously, Dworkin argued that there was a special defendant's right to win in cases where neither plaintiff nor defendant had a primary legal right (Dworkin, 'Seven Critics', 11Ga. L. Rev. 1201, 1215-16 (1977)). Bayles and I criticized this argument on the ground that, among other things, it assumed incorrectly that positions on legal issues correlated with the status of parties as plaintiffs or defendants (Alexander and Bayles, 'Hercules or Proteus.~', pp. 281-82). Dworkin has now dropped this argument entirely and relies instead on the denial of the existence of issues unregulated by pre-existing legal principles (142-43). 13 See J. Raz, 'Dworkin: A New Link in the Chain', 74 Cal. L Rev. 1103, 1118-19 (1986).


ty i f the rules they enact are "interpreted" to be the morally best they can be.

Thus, in a sense, making canonical rules "the best they can be" means interpreting them through methods that leave open the possi- bility that they will, when interpreted, turn out not to be the best they could have been. Put differently, the morally best standards to adopt for interpreting canonical rules are standards that do not guarantee (from the interpreter's perspective) the moral perfection o f the rules so interpreted. I f this is Dworkin's argument, then he is correct. But this victory o f the moral over the conversational theory o f interpretation is surely hollow, since it does not entail the rejection o f conversational standards o f interpretation; indeed, it relies on them for moral reasons. Moreover, as I understand Dworkin, he does not make this argument, so my criticism o f his approach to interpreting canonical rules stands. TM

14 Indeed, in an article published after Law's Empire, Dworkin provides further evidence that interpreting canonical rules to be the morally best they can be really does entail the complete rejection of conversational standards of interpretation in favor of seeking the most abstract conception of the author's normative intentions. See Dworkin, 'The Bork Nomination', New York Review of Books, Aug. 13, 1987, 3-10.

Of course, at the most abstract normative level, any author whose normative statements we would treat as authoritative intends what is (really) morally correct. (If a legal text's authors do not have that abstract intention - if they are not trying to do what is ultimately right, just, good - they should not be treated as authorities.) In interpreting legal text by reference to the authors' intentions, we must choose a level of generality at which to characterize those intentions, since their abstract intentions and their concrete intentions, which for them were consistent, for us may not be consistent. If we are to treat the legal texts as sources of principles, and not as narrow rules that are restricted by the very concrete intentions of the authors, we are led inevitably to "interpreting" each legal text as the same injunction: "Do what correct political morality requires". Any principle that is not endorsed by correct political morality cannot really be applied as a principle, since incorrect principles lack weight. (See note 20.) And since the authors did really intend, at the most abstract level, correct political morality, we are honoring their intention as much by following what we believe is correct political morality as by following any more

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2. The inflated value of equality. The moral value that underlies Dworkin's emphasis on Integrity - cohering each political decision with previous political decisions under the most attractive available set o f political/moral principles - is that o f equality. I f the communi ty has coerced X and benefited Y in prior political decisions, then it must

see that Z is treated in a manner that respects the equality o f X, Y, and Z. Take away equality, and Integrity becomes no more than an

specific principle that they endorsed but that we believe correct political morality does not endorse. Thus one might conclude that in reading every legal provision as a warrant for applying what we believe is correct political morality, we are correctly interpreting that provision in accordance with the intentions of its authors. See Schauer, 'The Jurisprudence of Reasons', (forthcoming); Alexander, 'Painting Without the Numbers: Noninterpretive Judicial Review', 8 U. Dayton L. Rev. 447, 452-53 (1983).

The problem with "interpreting" legal texts in the way Dworkin advocates is that those legal texts can no longer serve what some view as the central function o f law: the settling by authoritative human decision of what is morally controversial. See Raz, 'Authority, Law and Morali- ty', The Monist 68 (1985): 295. For if in order to "interpret" a legal text we must ask what correct political morality really requires, as opposed to what the authors thought it required, the legal text cannot itself settle the question o f what political morality requires. No human decision can do so authoritatively, since every interpreter will have to take up anew the moral questions that prior decisions purported to settle in order to "interpret" those decisions.

O f course, we must choose a level of generality of authors' intentions to look to in interpreting legal texts. That is surely a real problem. But we cannot choose a level so abstract that legal texts cannot settle - perhaps correctly, and more important, perhaps incorrectly - moral questions.

One final comment. Michael Moore, like Dworkin, proposes a non- conversational method for interpreting canonical legal texts. (Moore, 'A Natural Law Theory of Interpretation', 58 So. Cal. L. Rev. 277 (1985).) Unlike Dworkin, however, Moore does not urge that legal texts be "interpreted" to be the best they can be. Rather, Moore would retain ordinary rules of syntax and ordinary semantics and merely eliminate the search for the meaning intended by historical speakers. In one respect Moore's interpretive method may be flawed for much the same reason as Dworkin's is: it impedes lawmakers' attempts to settle moral issues. See Kress, "The Inter- pretive Turn", 97 Ethics 834, 858-59 (1987).


aesthetic virtue o f legal decisions, surely not the moral virtue that Dworkin maintains it to be.

Now, I will assume for present purposes that equality does have some moral value in its own right, though others have disputed this. 15 Even with this assumption, equafity cannot bear the weight o f a theory for discovering a community's law.

In the first place, equality in many cases is a terribly weak value, if it is a value at all. If the Nazi communi ty has marched millions o f Jews to the gas chambers, then equality presumably gives it some moral reason to continue the genocide. Similarly, if it has unjustly benefited Aryans in the past, equality gives it some moral reason unjustly to benefit Aryans in the present. And Dworkin's Integrity - because it is dominated by the value o f equality - requires courts and legislators to extend past injustices rather than to eliminate injustices.

Dworkin is cognizant of how bizarre the claim is that a Nazi judge ought to extend Nazi principles rather than undermine them. His response to the problem of cohering the present to an evil past comes at two levels. First, just as there must be a threshold o f fit with past political decisions that a present decision must meet, so, too, apparently there must be a threshold o f moral acceptability. That is, if no political morality among those that meet the threshold o f fit is sufficiently attractive, i.e., sufficiently close to correct political moral- it-y, the communi ty has no "law". Legal rights can be different f rom moral rights and can even be morally perverse, but if they are too wicked they cease to be legal rights, no matter what their source (107-08).

Second, Dworkin argues that even in communities that do have "law", legal rights may have insufficient moral force to warrant their judicial recognition. In such instances, judges might either resign or else lie about the content of the law, despite having labored like Hercules in hard cases to discover the legal rights that now must be disowned (107-08, 218-19).

The resulting picture of the law is extremely curious. We must

15 See, e.g., Coons, 'Consistency', 75 Cal. L. Review 59 (1987); Westen, 'The Empty Idea of Equality', 95 Harv. L. 1Lev. 537 (1982).

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now imagine a spectrum o f incorrect political moralities. One portion o f this spectrum contains political moralities too far incorrect to generate real legal rights at all: equality exerts no pull in their direction. Another portion o f this spectrum contains political moralities sufficiently close to being correct to generate real legal rights, but sufficiently far f rom being correct to justify disregarding rights. Final- lyl there is a portion o f the spectrum that contains political moralities that, although incorrect, are sufficiently close to correct to generate legal rights that warrant judicial recognition. And Dworkin provides us with no criteria for determining how far f rom or near to being the correct political morality an incorrect political morality must be to be assigned to each part o f this spectrum o f incorrect political moralities.

Dworkin's problems here stem from his taking one moral value - and a problematic and possibly very weak one at that - and making that value dominant in the quest for the law. 16 But equality indepen-

16 Even if equality is a value that counts in favor of all decisions that further it, it is not only a very weak one in some cases, as the Nazi example shows, but it is also indistinguishable in this respect from many other values. Indeed, there are moral values at stake on both sides of every moral question, even the easiest ones. Continuing Nazi genocide not only promotes "equality", it also promotes employment, technological progress, and so forth. The fact that even the most obviously correct moral decisions entail some costs to genuine moral values should indicate that picking out one such value and making it determinative of legal rights and duties is quite arbitrary.

Dworkin does not argue that law creates a conclusive moral obligation, only some sort of overridable moral obligation. He, like Philip Soper, appears to be tapping into the tradition in moral philosophy of positing the existence of prima facie moral obligations (Soper, A Theory of Law (Cam- bridge: Harvard University Press, 1984)). I suggest that tradition, which rests on a spurious analogy to the notion of a primafacie case in law, with its rules of pleading and burdens of proof, be abandoned. If the presence of a moral value that will be furthered by an act creates a prima facie obligation to choose that act, then, if some moral values are furthered by all possible acts, we end up with prima facie obligations to choose all possible acts, which is entirely unhelpful. If our moral values are defined so that it is possible that a particular act will not further any of them, the notion of prima facie obligation is unnecessary. For example, Soper's argument to the contrary notwithstanding (A Theory of Law, pp. 79-87), from the fact that governing


dent o f the correct political morali ty o f which it is a part (if indeed it is a part) either leads to commanding that past evils be continued and extended, 17 or else to requiring that lines be drawn in terms o f degrees o f injustice that it itself cannot draw. Fur thermore , since Dwork in does not require total fit, but only a threshold o f fit, we need recourse to values that Dwork in does not provide to ascertain h o w much equality - "fit" - is enough.

To draw these lines correctly requires recourse to a complete, correct political morality that contains values in addition to equality. Indeed, w e would need to k n o w the correct political morality even if w e did not have to locate these various thresholds o f fit and acceptability. For given a finite set o f political decisions, no matter h o w large, there are an infinite number o f incorrect political moralities that can "fit" with them completely. 18 N o matter h o w checkerboard a statute appears, there is a way o f construing past political decisions so that the statute expresses a political morality consistent with them, at least i f the political morali ty need not actually be held by anyone. Put

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differently, wi thout the constraint o f acceptability, all possible deci-

officials are doing a job - enforcing a legal order - that has moral value, it does not follow that there is a prima fade obligation to obey their laws, any more than it follows from the fact that a war reduces population pressure that we have a prima fade obligation to support it. And the same holds for Dworkin's value of equality. For an excellent argument against the notion of prima facie moral duties, see M. Detmold, The Unity of Law and Morality (London: Routledge & Kegan Paul, 1984).

Finally, Dworkin cannot draw support from arguments based on the value of democracy• The set of political decisions with which the law must cohere in Dworkin's theory may not be supported by a majority of the people, because of constitutional restrictions on majorities, because of Arrow's theorem, because of ignorance or illogic or apathy, and because Dworkin's theory presumably applies to non-democratic legal systems• And Dworkin recognizes that the political morality that is constructed from those political decisions and that represents the law may not be any individual's or group's political morality, even if Dworkin wishes to argue that it is in some sense "the community's". 17 See Coons, note 15. I8 See Yablon, 'Law and Metaphysics', 96 Yale L.J. 613, 634 n. 97 (1987).

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sions will honor the value of equality, for all possible decisions will fit with some political morality and thus honor equality o f treatment in accordance with that political morality. Thus, to constrain the choice o f political moralities requires the axis o f acceptability, as Dworkin well knows. But to determine whether one incorrect political morality is more acceptable than another incorrect political morality, we need to know the direction the acceptability axis runs, which in turn requires that we know the correct political morality - the only source for determining what kind o f equality is o f real moral value.

However, if we now have the correct political morality in hand, it will tell us how much equality is enough, that is, how much present deviation from morally ideal results is warranted by the fact that we deviated from the morally ideal in past political decisions. 19 And we do not need to choose an incorrect political morality if we have a correct one in hand, since the correct political morality will itself determine how much weight past incorrect decisions should carry in the present. Correct political morality will take into account all relevant facts, including the facts that others have been dealt with in less than an ideal way and that many people reject the correct political morality. But it will not dictate its own abandonment in favor o f an incorrect political morality, no matter how far the past is from ideal or how many people currently reject the correct political moralityl

Indeed, the idea that we could somehow determine the threshold o f "fit" without knowing the real value o f equality - and hence the

19 Moreover, I believe that a correct conception of equality will rarely dictate that a past mistaken decision now be followed. For if a correct conception of equal concern for all parties should have led to a judgment for A in case one, but the court in that case incorrectly held in favor of B, that same conception of equal concern probably still dictates a judgment for A's analogue in case two notwithstanding the prior judgment for B's analogue. Thus, if I permit my daughter to attend a rock concert at age fourteen, and then later decide that a correct concern for her welfare should have led me to refuse permission, then when my son reaches fourteen, equality of concern for his welfare should lead me to refuse to permit him to attend rock concerts despite my prior decision, assuming his welfare is jeopardized to the same extent as my dangher's was.


correct political morality o f which the real value o f equality is a component - is impossible to comprehend. Dworkin may believe that the "fit" threshold is not determined by real equality but by a process o f first picking a tentative threshold o f fit; then finding the most attractive political morali ty that meets the threshold; then looking to its (not necessarily correct) value o f equality to set a new threshold o f fit; then picking a new most attractive political morality and hence a new value o f equality; and so on, until some sort o f reflective equilibrium is reached. This process will n o t work, however, for one simple reason: any political morality will dictate that it be followed no matter how poorly it fits with past decisions. It will take those decisions into account in its application, and they may make its application different f rom what it would be i f those decisions had been different. But no political morality would urge its abandonment simply because it had not been followed in the past.

Thus, to discover which political moralities satisfy the threshold o f "fit" and which o n e o f those is most acceptable, we need to refer to correct political morality. But correct political morality itself provides us with all we need to act correctly in legal contexts. To choose among incorrect political moralities, as Dworkin would have us do, for the sake o f the correct account o f equality, is incoherent. 20

20 See Alexander and Bayles, 'Hercules or Proteus.~', p. 277. Dworkin's checkerboard statute argument in Law's Empire -i.e., that we

tend to disapprove of such statutes in favor of more principled ones - surely does not rebut this point. For one thing, as others have pointed out, Dworkin overstates our objections. See Wasserstrom, 'The Empire's New Clothes', 75 Geo. L.J. 199, 248-55 (1986). See also Coons, note 15. For another, if we do object, it is on the basis of what we believe is correct political morality, with its correct account of the meaning and weight of equality. For example, if we believe that abortion is murder, then we might well accept a checkerboard state forbidding some but not all abortions if we fail to persuade the majority to outlaw all abortions. If we reject such a statute, and our rejection is not a tactic designed to achieve a total ban, it will be because correct political morality ranks a certain type of inequality as a greater evil than abortion.

There is another reason besides those in the text for denying that we

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3. Pragmatism plus conventionalism: a better theory of legal doctrine. In Law's Empire Dworkin favorably compares his theory o f legal doctrine (Integrity) to its two principal rivals, Conventionalism (positivism) and Pragmatism (Dworkin's version o f legal realism). I shall argue that the methods o f Conventionalism and Pragmatism are not opposed to each other but are complements, and that as complementary methods

'Conventionalism and Pragmatism are much more attractive ap,- proaches to legal doctrine than Integrity.

The Pragmatist, as I would describe her, is Qne who tries to do , what is morally correct in each case. Dworkin describes the Pragmatist as one who attempts to advance the community 's goals in each case (147-53), that is, as sort o f an act-consequentialist, but I think that mine is a more attractive version o f Pragmatism and is thus t h e appropriate foil for Dworkin.

N o w the Pragmatist will realize that in any communi ty o f more than a few people, it will be morally correct to establish conventions and institutions for deciding authoritatively what is morally correct. Those conventions and institutions, which are themselves decisions about what is morally correct, plus the more substantive decisions they produce regarding what is morally correct, make up the Con-

should reach decisions on the basis of an incorrect political morality. I believe that it is impossible for one sensitively to construct and apply principles that one believes to be incorrect, that is, to engage in their complex weighing and to attend to their subtleties and nuances. Certain facts carry certain real weights in moral decisions, weights which are derived from the correct political morality. Those weights cannot be posited by human decisions, which means that real principles cannot be posited. Norms that function as (weightless) rules can be posited, and the fact of their being posited can bear real moral weight, which may even (paradoxically) dictate that the norms }~e treated as binding (infinite weight). And posited norms can dictate that one act as if consideration A "outweighs" consideration B, even if consideration A really does not. But real moral weight itself cannot be posited, and that means that the incorrect principles that fit with incorrect political decisions cannot really be weighed. Only real (correct) principles have weight and can be weighed. And if this abstract point is not convincing, the reader should try to imagine herself sensitively constructing, extending, and balancing, say, Nazi "principles". See generally Detmold, The Unity of Law and Morality, pp. 83-98.


ventionalist's "law" (114-17). Thus, the Pragmatist's "law" (what it is best to do) leads inevitably to the Conventionalist's "law" (what we have already decided it is best to do in accordance with conventions and through institutional mechanisms that we have decided it is best to have). The Pragmatist, or as I would call her, the Sophisticated Natural Lawyer, may claim that the term "law" properly applies to her broad, practical question. The Conventionalist, or Legal Positivist, may claim that "law" properly applies only to her narrower question regarding the content of authoritative decisions. But this dispute is at bottom terminological, not substantive. 21 The two positions can be viewed as complementary parts o f one coherent moral enterprise. 22

Although Pragmatism and Conventionalism are complementary parts of the same enterprise, there is a quite paradoxical relation between them. Although the Pragmatist, to do what is morally right, needs authoritative conventions - conventions that should be treated as binding - these conventions may produce answers that are not morally right. Morality requires us to make binding decisions, and those decisions can be morally wrong. I have explored this paradox elsewhere. 23 What I wish to say here is that there is no middle ground within the paradoxical relation between Pragmatism and Conven- tionalism for Dworkin to occupy with Integrity. And Pragmatism/

21 This is not to deny that substantive connotations are often part of the baggage of terminological disputes. 22 See Alexander and Bayles, note 7, at 272-73. The "natural law" theories of Deryck Beyleveld, Roger Brownsword, and M. L. Detmold can be read as reflecting the view that conventionalism and pragmatism are complementary parts of a single moral enterprise. See D. Beyleveld and R. Brownsword, eds., Law as a Moral Judgment (London: Sweet & Maxwell, 1986); Detmoid, note 16. See also Gavison, 'Natural Law, Positivism, and the Limits of Jurisprudence: A Modern Round', 91 Yale L.J. 1250 (1982).

The Sophisticated Natural Lawyer/Legal Positivist ~'debate" in jurisprudence has parallels with the debate in metaethics over whether the realm of the moral is identified by its content or its form. See, e.g., Cornett, 'The Dilemma of the Moral', Journal of Value Inquiry 21 (1987): 101; Singer, 'The Triviality of the Debate Over 'Is-Ought' and the Definition of 'Moral', American Philosophical Quarterly 10 (1973): 51. 23 L. Alexander, 'Pursuing the Good - Indirectly', Ethics 95 (1985): 315.

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Conventionalism, unlike Integrity, is coherent and attractive. Its paradoxes are paradoxes born of features o f reality, not unattractive, theory-d!screditing blemishes. 24

Dworkin might finally urge Integrity, not as a direct competitor with Pragmatism/Conventionalism, but as an instrumental strategy for judicial implementation of Pragmatism/Conventionalism. Thus, Dworkin might argue that it is (pragmatically) best for courts to act neither as Pragmatists nor as ordinary Conventionalists but as fol- lowers of the methods o f Integrity. The Pragmatist's argument for Conventionalism has this kind of structure, namely, that Pragmatism directly implemented w i t h o u t authoritative conventions is self- defeating; therefore, the Pragmatist may urge that judges be Conven- tionalists, with the paradox that results from such indirect Pragmatism. Dworkin may wish to argue that the master convention that judges should adopt is the "convention" o f Integrity.

This argument for Integrity is not, o f course, the argument Dworkin makes. Moreover, it is quite implausible. The reason that Pragmatism leads to conventions and Conventionalism is that conventions authoritatively decide and settle moral disputes, and that is a morally good thing from the Pragmatist's standpoint. A "convention" like Integrity does not settle moral issues, however, because it requires a resort to moral arguments, and queer ones at that, to determine what the "convention" has settled. Integrity lacks the virtues o f both pure Pragmatism - getting it morally right, and pure Conventional- ism - getting moral issues settled. It is a most unlikely judicial method for implementing Pragmatism/Conventionalism. 25

24 See Alexander and Bayles, 'Hercules or Proteus?', pp. 277-78. 2s This argument against Integrity as an instrumental strategy for judicial implementation of correct political morality is in effect an argument against one of the three most popular theories of precedent. One theory, what I call "natural precedent", dictates that courts take into account past decisions exactly as correct political morality would indicate, with claims for equal treatment and claims of reliance given the weight they actually carry in correct political morality. A second theory, "rule precedent", treats judicial


4. Dworkin, the moral conventionalist. I have to this point been assuming that on moral issues, Dwork in is a realist, that is, that he believes that there really is a correct political morality, the existence o f which is unaffected by the community 's moral beliefs. Michael Moore, w h o appears to be a jurisprudential Pragmatist /Conventional- ist, believes that Dwork in is also a Pragmatist/Conventionalist, and that Dworkin 's jurisprudential problems stem from his being a moral conventionalist rather than a moral realist. 26 M o o r e is definitely wrong about Dworkin 's being a Pragmatist/Conventionalist, and he may be wrong about Dworkin 's being a moral conventionalist. I f Moore is correct about the latter point, however , then Dworkin 's Integrity approach to finding the law o f the communi ty is in even deeper trouble than what I have described. For i f there is no moral reality, no really best political morality, the political morality side o f Integrity's me thod must be constructed out o f the community 's moral judgments. Correspondence with moral reality gives way to "fit", or internal coherence, as the test o f the "correct" political morality. But no matter h o w extensive the data - the community 's judgments, particular and theoretical - there are an infinite number o f political moralities that can be constructed that will fit the data perfectly. In

opinions, or at least parts of opinions, as canonical rules that bind all equal or lower courts in subsequent cases. Under this theory, courts do indeed legis- late. The third theory, "result precedent", requires courts to decide a subsequent case as it decided the earlier case, regardless of whether the earlier case was correctly decided, if the party who won the earlier case had a moral case that was equal to or weaker than the equivalent party in the subsequent case. However, although I cannot demonstrate the proposition in a footnote, because the determination whether an earlier party had a stronger or weaker moral case requires recourse to correct political morality, result precedent either collapses into natural precedent or into the same incoherence that undermines Integrity. 26 Moore, 'Metaphysics, Epistemology and Legal Theory', 60 So. Cal. L. ILev. 453, 483-94 (1987).

436 Larry Alexander

other words, without moral reality, there is nothing but fit, and fit can never determine the choice o f theory by itsel£ 27

III. D W O R K I N ' S TEST OF J U R I S P R U D E N T I A L THEORIES

Dworkin claims that the interpretive method of Integrity is not only the proper method for determining legal doctrine - the law of a particular community - but that it is also the proper method for answering the jurisprudential question, What is "law"? (87-101). In other words, Dworkin claims n o t only that the jurisprudential and doctrinal questions are related, which, of course, they must be, but also that their answers are derived through exactly the same method- ology. I shall argue that Dworkin does not in fact employ the same method o f Integrity at both the doctrinal and jurisprudential levels.

What does Integrity look like as a test o f jurisprudential theories? Briefly, we are to gather some pretheoretical paradigm instances o f law - for example, constitutions, statutes, and case decisions. We then construct the most morally attractive account of the enterprise that "fits" these pretheoretical data, though we may decide in light o f the theory we construct to add new data as instances o f law and delete some of the original. Eventually we reach an equilibrium between the data and the most morally attractive account o f the enterprise that "fits" the data. That account is the answer to the jurisprudential question regarding the nature of law. And according to Dworkin, this method o f Integrity at the jurisprudential levels yields itself as the answer.

Several commentators have criticized Dworkin's use o f Integrity at the jurisprudential level primarily with respect to the selection o f the pretheoretical data over which the method operates. 28 For my pur-

27 Moore, 'Metaphysics, Epistemology and Legal Theory', at 483-94. See also Alexander and Bayles, note 7, at 296-97 n. 27. Moore makes it clear that his is a criticism of moral constructivism as an ontological theory opposed to moral realism, not as an epistemological theory regarding the justification of belief~ about moral reality. 28 See, e.g., B. Levenbook, 'The Sustained Dworkin', 53 U. Chi. L. Rev. 1108, 1111-16 (1986). See also Kress, note 14, at 855.


poses I am going to assume that these criticisms can be successfully parried by Dworkin. Indeed, I am going to assume that Integrity as I have just described it /s the proper jurisprudential method. What I wish to argue is that Integrity at the jurisprudential level is not the same method as Integrity at the doctrinal level, and that Integrity at the jurisprudential level will not yield Integrity at the doctrinal level.

Integrity at the doctrinal level, with its notions o f fit and moral acceptability, is a distinctly, if weirdly, moral enterprise. Integrity at the jurisprudential level, while it may have moral overtones, is quite different. For example, at the doctrinal level, "fit" matters because o f the moral value o f equality. At the jurisprudential level, however, "fit" matters for epistemological, not moral, reasons. 29 There may be a moral value at stake in having a communi ty face up to its past statutes and judicial decisions. There are only epistemological values at stake in deciding that statutes though not club rules must be counted as laws. Treating present people equally with others, past and present, is a moral concern; treating statutes and administrative rules as theoretical "equals" is not. And although it makes some sense to say, as Dworkin

~ does, that a community's political decisions have been so wicked that we must deny that it has laws, it would be odd to deny that there is such a thing as "law" just because we cannot find a sufficiently attractive moral purpose that it serves. 3° I conclude that jurisprudential Integrity is not the same as doctrinal Integrity.

Even if they are different forms of Integrity, Dworkin believes that jurisprudential Integrity yields doctrinal Integrity. However, it plainly does not. First, with respect to Integrity's axis of fit, Pragma- tism/Conventionalism surely fits as well with the data o f how judges, legislators, and ordinary people think about the legal enterprise and its

29 See M. Moore, The Metaphysics of Judging: A Return to Natural Law Juris- prudence (Oxford: Clarendon Press, forthcoming), Chapter 1 part C, and Chapter 3 Part C. 30 Consider the same point with respect to accounts of slavery, violence, or other unsavory human practices.

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methods. 31 Second, with respect to Integrity's axis o f moral attractive- ness, I have already demonstrated that Pragmatism/Conventionalism is a more attractive method for finding and extending the law than (doctrinal) Integrity. 32 Therefore, the method o f Pragmatism/Con- ventionalism, not Integrity, is what Integrity at the jurisprudential level supports.

IV. C O N C L U S I O N

In Law's Empire Dworkin remains commit ted to carving out a middle ground between natural law and legal positivism. But natural law and legal positivism are best viewed as complementary answers to different questions, There is no middle ground between them. Nor is the question that Dworkin's Integrity asks one that could be coherently answered i f it were an important question. Fortunately, it is not.

School of Law, University of San Diego, San Diego, CA 92110 U.S.A.

31 Our alleged aversion to checkerboard statutes does not show otherwise. We do not deny that such statutes are "laws". And when we do object to them it is likely because we believe their compromise is not the really morally best course of action under the circumstances. To the extent a particular legal doctrine - equal protection - both reflects our moral beliefs and also invalidates checkerboard statutes, that still does not make Dworkin's case for Integrity. See L. Alexander, 'Modern Equal Protection Theories: A Metatheoretical Taxonomy and Critique', 42 Ohio St. L Rev. 3, 33-39 (1981) (discussing equal protection and compromises between moral theories). See also Coons, note 15. 32 See notes 21-27.

striking back at the empire: a brief survey of problems in dworkin's theory of law

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