Download - Jurisprudence Final Exam – Fall 2010
Jurisprudence – ShapiroFall 2010
Exam ID: 2235
Jurisprudence Final Exam – Fall 2010
1)
In his extensive work, Law’s Empire (Belknap Press, 1986), Ronald Dworkin sets out
both his own conception of what law is, as well as general principles to categorizing and
understanding competing vision of the law. His work covers broad as well as specific aspects of
legal philosophy, and attempts to secure an explanation of the law adheres both to our empirical
experience of law in practice, and our moral and social intuitions about what law ought to be. He
accomplishes this by considering past legal philosophy, demonstrating their weaknesses, and
finally, in light of those weakness to conclude on his own theory, that of Legal Integrity.
Dworkin begins by considering the two historically dominant theories of what law is:
natural law, and the “plain-fact view.” He describes these opposing conceptions of law as
follows. Natural law, simply put, understands law as synonymous with morality, or justice. There
are metaphysical principles of law that are aspired to, and in the absence of coherence with these
metaphysical principles, there is no law. Conversely, the “plain-fact view” asserts, “law is only a
matter of what legal institutions, like legislatures and city councils and courts, have decided in
the past.” Id. at 7. Dworkin defines both of these approaches as Semantic Theories of law. They
set out to say what law is objectively. For the plain-fact theorist, there is no one who does not
agree on some level that law is embodies in institutions. He goes on the reject such approaches in
that they amount to a metaphysical reification of language, that fail to account for the variety of
opinion and usage that manifestly exists in meaning of the term law. In their place he advances
and interpretative theory of law, that does not look to divine some Platonic form of law, or
positivistic linguistic convention, but rather accepts that law is a social phenomenon, and seeks
to interpret it as its object.
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Without going into to excessive detail, Dworkin sets out a interpretation of the social
phenomenon of law should look like. First he notes that there are three phases of interpretation in
the social practice of law. The first is “pre-interpretive,” it is the period in which basic
institutions and practices are formed. While there is potentially some interpretation that gives rise
to them, it is equally plausible that such practices arose from convention or other means. The
second phase is the “interpretive,” with practices in place, one can consider what unifying
principle if any they express. The final phase he terms “post-interpretive,” this is how a legal
system is altered in light of interpretive decisions. He further notes, that as with all interpretive
activities, it is important that there be some common plateau of what the object of interpretation
is on a basic level. He concludes that:
The most abstract and fundamental point of legal practice is to guide and constrain the power of government in the following way. Law insists that force not be used or withheld, no matter how beneficial or noble these ends, except as licensed or required by individual rights and responsibilities flowing from past political decision about when collective force is justified.” Id. at 93.
With this rubric in mind, Dworkin goes on to consider various interpretations of our legal system
Having rejected Semantic Theories of law, Dworkin moves on to discuss three competing
Interpretive Conceptions of law, thus further narrowing the range of possible, and probable
explanations available. In considering whether a particular conception of law is true, Dworkin
sets out two criteria for consideration. Given the fact that legal philosophy, as Dworkin limits it,
is an interpretive act, with a given societies legal practices as its object, the first question that
should be asked is whether a given conception conforms with the realities of the system it
addresses. The second criteria considered, is whether a given interpretation shows the legal
system in its best light. In Dworkin’s “plateau” for legal interpretation, this amounts to whether
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or not a given interpretation justifies the use of coercive force in our legal practice. Using these
two criteria Dworkin considers three opposing interpretations of law: Conventionalism,
Pragmatism, and Integrity. He concludes that Integrity is the most satisfactory of the three
conceptions, in both fidelity to the realities of our legal practice, and in justifying the use of
coercion in that practice.
The Conventionalist interpretation holds that “the collective force should be trained
against individuals only when some past political decision has licensed this explicitly in such a
what that competent lawyers and judges will all agree about what that decision was, no matter
how much they disagree about morality or politics.” Id. at 114. Dworkin acknowledges that this
conception is remarkably similar to legal positivism, but notes that it does not claim that no other
conception of law exists, it merely claims that this happens to be the one that exists in our
system. Conventionalism is based on the supposition that the justification of coercion is rooted in
the principle of “protected expectations.” It asserts that coercion is only justified when laws are
clearly promulgated to the public, and it can expect the outcomes that the legal system
prescribes. From this claim Dworkin deduces two post-interpretive principles for
Conventionalism. First, that the jurist is bound to past convention, and there is no act of legal
decision making that can circumvent this principle. Second, that in cases where the law is silent,
there is no “spirit of the law” or general principles that can be used to divine the correct legal
decision. Because the law is bound to its principle of protected expectations, any unforeseen,
hidden, or deduced principles would violate this central tenet. As such, in instances where the
law is silent, the judge must make legal rulings based on morality, prudence, or other criteria.
However, he may not turn to past similar cases. Only explicit statements can be considered
binding convention.
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Dworkin rejects conventionalism. In his view it fails both in accurately describing the law
as it is, and in justifying coercion. On the first account, it fails to acknowledge that judges do, in
fact, make extensive use of precedent in come to conclusions in hard cases, that are not explicitly
dealt with in statute or precedent. If Conventionalism is accurately descriptive of our legal
practice, this would be nonsensical. On the second account, he sees this interpretation as failing
to justify the system, in that protected expectations are not enough to explain the system as a
whole. First, he notes, that a violation of expectations, is not immoral, unless it goes against
expectations that were set out clearly in the first case. As such, Conventionalism accomplishes
little in justifying the use of coercion, if, for example it is promulgated that judicial decision
would be based on personal moral discretion. In this instance, expectations would not need to be
protected, tin that there are none. He further argues, that there can be no appeal to
Conventionalism as a practical concern, in that there is no reason to assume that political like
would be better served by blind adherence to past rulings, rather than a consideration of changes,
and current circumstances.
The second view advanced by Dworkin is that of Pragmatism. This view rejects the
reliance on the past whole cloth. It assumes that lawmakers and judges should make decisions
based on what is most sound prospectively. Here the problems are more glaring. How can this
interpretation fit our legal system, when judges always look to past law to determine their
particular rulings? The pragmatist must make the assertion that the judge does not need to
reference past cases, but may find it expedient to create the “noble lie” of reliance on precedent
in order to fully affect his legal ruling on the general public. While this explanation is certainly
possible it is not plausible in any sense. It would be exceedingly strange for the vast literature of
legal doctrine and case law to exist if it were all merely subterfuge. Similarly, this interpretation
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does nothing to justify the use of coercion. It denies the existence of individual rights by
necessity, as each law maker can alter and change the current legal regime to fit what is most
utilitarian. As such, there is no need to justifying coercion, beyond its practical value in a given
society.
Dworkin’s favored interpretation of our legal system is that of Integrity. He defines this
principle is the demand that our law are created and interpreted in such a manner that they are
coherent when taken as a whole. He begins his discussion by considering how Integrity is
conceptually distinct from that of Justice and Fairness. He then uses this to show that Integrity
accurately describes our legal system’s practices, thus succeeding in his first criteria. He then
considers whether Integrity justifies the use of coercion, and does this by appeal to the notion of
associative obligations. Finally he describes how this principle shapes the decision-making of
judges in a hypothetical legal case.
Before considering Dworkin’s specific arguments regarding Integrity, it is important to
first consider a potent objection to the foundation of his interpretation. The notion that internal
coherence is the central guiding principle of our legal system assumes a certain personification of
collective action. Simply put, why is coherence of concern in a social practice such as the law,
when the law is the production of thousands of individuals separate actions. There is no solitary
collective that can be taken to account for its hypocrisies. How then, can Integrity serve as its
central principle?
Dworkin attempts to avoid this objection, by simply stating, that apart from any rationale,
the fact remains that we do personify institutions in both theory and practice. He considers the
instances of an car manufacturer that sells defect products. He argues that we find the
corporation liable in that case apart from its constituent individuals. He further claims that we
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cannot simply say that the finding of a corporation as liable, is simply a shorthand for the
intersection of all contributing acts, because we hold the shareholders principally liable, despite
the fact that they had no direct influence on the sale defective product, and furthermore, did not
even directly add capitol to the enterprise in the trading of their shares on the market. He brings
further examples of personification in practice, in terms of sentiments of national responsibility
for past wrongs. He notes that although present day Germans had no direct responsibility for the
Nazi atrocities, there is a sense of (at least attenuated) responsibility that persists. Dworkin’s
response, while lacking in theoretical explanation, does provides solid evidence that institutional
personification is common place in our legal and political framework.
With the idea that the law is, at least in practice, conceived as a personified unitary entity,
Dworkin moves on to further refine the concept of Integrity. He first considers how Integrity is
distinct from notions of Justice and Fairness. Justice, in this view are the moral decisions that we
make as to the rightness of a given law. Using the question of abortion, Justice considers whether
the act of abortion should or should not be allowed. Conversely, Fairness, is the procedural right
to equality in the political and legal arenas. Principles of Fairness include the notion of
representative majoritarian rule. Each individual has a fair shot to have his moral judgments
become articulated law. Thus according to Dworkin these two concepts are distinct. An
individual opposed to abortion might say that its legalization in American in unjust, but will not
argue that the legal mechanisms that made it so were unfair. Conversely, such an individual
would say that its illegality in a theocratic dictatorship is just, despite the fact that the law’s
passing was unfair.
Dworkin uses the distinction between Justice and Fairness to demonstrate that a third
category, Integrity, exists independent of the two. To this end he considers a legal outcome quite
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foreign from what American’s are used to. He asks, if Fairness and Justice are the only principles
that matter in our legal system, why do we insist that a given law be applied universally. Why,
for example, can we not legalize abortion for a quantity of women equal to the percentage of
voters who desire its legalization. Dworkin claims that in terms of Fairness, there can be no
objection to such a compromise, as it respects the views of all citizens in the community, and
gives voice to their moral judgments. Similarly, he argues that in terms of Justice, this outcome
would be superior to that of blanket illegality or legality. For the individual who opposes
abortion, would it not be more justice to prevent at least some prospective abortions, rather that
take the all or nothing approach? This hypothetical alternative to our current system points to the
existence of a third unifying legal principle, that of Integrity. Independent of Justice and
Fairness, Integrity dictates that the State personified, strive for internal coherence. Therefore,
such “checkerboard” solutions, as Dworkin terms them, are unacceptable in our legal system. He
gives further credence to this view, arguing that this principle is enshrined in the Constitution
itself, in the Equal Protection clause, which demands that laws be applied equally to citizens,
thus demanding that the legal system include internal coherence on a fundamental level.
It is thus demonstrated that Integrity does conform to the reality of our legal system.
Beyond not contradicting any common practice of our laws, it serves to explain an important
phenomenon, which cannot be adequately understood without it. Later in the text Dworkin
further demonstrates that the principle of Integrity serves to explain the manner in which judicial
decisions are made, in a manner more satisfactory that its competitors. The reliance on precedent
in this view, is not simply a dry deference to binding convention, not a farce designed to conceal
pragmatist judicial fiat. Rather, a judge must look to past rulings in order to insure that coherence
of the law, or its Integrity is maintained. This is true not simply where extant case law touches on
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an issue directly. Rather, even in cases where explicitly promulgated law is silent on a given
topic, it is essential that a judge consider the past, to insure that his ruling conforms not simply to
his own moral judgments, but to the train of implicit legal thought bequeathed to him or her. He
explains this concept by reference to what he calls a “chain novel.” He considers what an author
would do if given part of Dickens’ “A Christmas Carol,” and asked to complete it, without
knowing the books actual ending. He contends that it would be exceptionally difficult for an
individual to construct the last chapter of this novel such that Scrooge is irredeemably evil. It is
not that such an ending would be impossible to imagine, but that it would stand in sharp
interpretive dissonance with the proceeding chapters. Similarly, he argues, judicial reliance on
precedent relies on the interpretation of past legal decision to decide whether his own
conclusions conform with the interpretive sweep of past thought, thus insuring the coherence and
Integrity of judicial decision-making.
The question then remains, how and if Integrity serves to justify the use of coercive force
in our legal system, which he links with the idea of legitimacy of rule. After considering a
number of competing views and dismissing them, Dworkin settles on “obligation of community”
as the correct justifying principle in legitimating the use of coercion. He argues that the
strongest, and perhaps most meaningful sense of obligation stems from institutions such as
family and community. Despite the fact that familial ties are non-consensual, an individual’s
obligation to his or her parents and siblings is an almost unbreakable bond of mutual obligation.
Dworkin argues that similar bonds of obligation exist in the political community, but that both
are predicated on certain features that strengthen this sense of obligation. He argues that an
associative obligation must be based on membership in that association that is: special (i.e.
exclusive of other associations), personal (i.e. they run directly from one individual member to
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another, not generally in the community), pervasive (i.e. encompassing a general concern for
members, not specific contractual obligations), and egalitarian. He argues, for example, that in a
family where a daughter’s marriage is determined by her father, that this will violate the sense of
obligation to follow her father’s rules, if it flows from a lack of gender equality. In other words,
if her lack of choice is the result of women being of less value than men, then her sense of
obligation to follow such a rule is highly eroded. If, on the other hand, the reasoning behind such
a rule is concern for her wellbeing, then there is a sense in which ignoring her father’s wishes is
violative of something, and therefore, she will be feel the need to at least apologize in flouting
her arranged marriage.
With these four criteria of associative obligation, Dworkin argues that Integrity as the
basis of the political community, serves to strength our sense of obligation, and thus legitimizes
political authority and coercion. Our legal community is special, in that it is based on shared
principles of justice and fairness that are coherently articulated in a manner unique from
competing communities. It is personal, in that the society’s legal principles are active in each
individuals obligations towards another. It is egalitarian, in that the requirement of coherence,
demands that the law be applied to everyone in the same manner. And finally, it is pervasive, in
that legal obligations in this interpretation are not limited to specific iterations or conventions of
practice, but stem from the “chained novel” of past judicial and legal thought. Principle, not
simply articulated law binds us. Dworkin argues, that because these four factors are thus
strengthened by the interpretation of our legal system as Integrity-based, and as such that
interpretation is successful in justifying coercion.
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5)
In A Matter of Interpretation (Princeton University Press, 1997) Justice Scalia advances a
view of statutory interpretation known as textualism. He argues that despite the vast history of
common law jurisprudence, and legal education based on those decisions, the lion’s share of
what a federal judge’s activities are composed of is rooted in textual interpretation. He writes
disparagingly about how the legal establishment has failed to present cogent theories of statutory
interpretation, despite its ubiquity in legal practice, and presents his own theory. Which in short,
is fidelity to the plain meaning of a statute, without concern for its legislators non-expressed
intentions.
Scalia’s argument begins with an attack on the mode of statutory interpretation that gives
special importance to the intent of the legislature. He raises three principle objections to this
approach. First, he argues that it does not take account of another principle of statutory
intperpretation, namely that statutes are to tbe interpreted in such a manners as to eb consistent
with other statutes. If the interpetation of a statute is bound in the specific intentions of the
legislatures that passed it, then this concern for coherence would be nonsensical. It is highly
improbable that any legislative body passes laws with the totality of a given code in mind when
it it passed. On the contrary, they often arise from spefici policial pressures and events, and take
little account of theoretical legal coherence. Scalia would argue that if, however, statutory
interpretation is limited ot promulgated law, divorced from the intentions that gave rise to it, then
there is greater sense in seeking textual coherence across a given code. In that the plain meaning
of a text should be considered in the context of the larger body of text it is contained in.
Scalia acknowledges that this view of statutory interpretation involves a sort of legal
fiction. Quoting Bishop’s treatise on statutory interpretation, Scalia notes that we are not seeking
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legislative intent, but the “meaning which the subject is authorized to understand the legislature
intended.” Id. at 17. This somewhat cryptic statement is elucidated when considered in the
context of Scalia’s next attack on legislative intent. Namely, that in a democracvy, there is no
legitimazy to law that is not promulgated. He give credence to this ideal by reference to the
United States as a government of laws, not men. This notion of governmental legitimacy is
bound up in the notion of “protected expectations” that Dworkin discusses (and rejects) in Law’s
Empire. In this view, having stable legal expectations is essential to the legitimacy of law. As
such, an indiviudal’s expectations would not be adequately protected by statutes whose meaning
was hidden away in deep interpretations on intent. Therefore, Scalia assumes that the only
meaning “allowed” to a statute, is that which is most easily accessable to the individual, namely
the plain meaning of a text. Further credence is granted to the connecting of Scalia’s textualism
with Dworkin’s notion of the Conventionalist concern for protected expectations, in Scalia’s
statement that “The rule of law is about form.” Id. at 25. For Scalia, the principle virture of law
appears to depend on Conventionalist tendencies which favor form over content.
Scalia’s final argument against considering legilative intent rests on the assertion that this
will lead to judicial abuse of power. In Scalia’s view, judges are meant ot be interpreters of law,
not its authors. He sees the validity of legislative intent in statutory construction as a dangerous
inroad available to the inscrupulosu judge, bent on enforcing his own political judgments extra-
legal. This judge will be able to manipulate the meaning of a statute more easily in Scalia’s view,
than it constrained to plain meaning. This argument, however, is quite weak, in that in instances
of most litigation surrounding a statute, the reason a lawsuit was plausibly possible was because
of ambiguity in the meaning of a statute. In other words, in instances where statutory
interpretation is needed, it is necessarily in instances of textual ambiguity. This being the case, it
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is hard to see how taking an account of legislative intent serve to allow any further opportunity to
the judge to ac unscrupulously than simply making a bad-faith plain meaning interpretation.
Scalia’s most persuasive argument for the exclusion of intent as a criteria for
interpretation lies in his practical skecptacism about the accuracy of legislative histories. He
notes that even if should be concerned with investigating the intents of legislators, there is little
sense in which recorded histories of debate and comities reports can actual reflect the intents of
those who enacted a law. Consider the following. A Congressional committee considers passing
a new regulation on the use of coal in an area where it will detrimentally affect its ecosystem.
The committee inverstigates and debates the issue extensively, considering the costs and benefits
of sucha regulation, and decides in drafting the bill, that the interest of disallowing outweigh
allowing because of the negative impact such pollution with have on the area’s economy. Now
that bill, stripped of its rationale is presented to the whole fo the House od Representatives.
When Representative John Smith votes for the law, it is possible (and likely) that he has not read
and is not familiar with the committees reports and rationale. He may have voted for the bill
because, be thinks the aesthetic value of a coal-free environment warrants its regulation. If this
bill becomes law and is the subject of litigation, whose intent matters? There cannot be said to be
a unitary legislative intent that transcends its individual enactors. Similarly, committee reports
and other forms of legislative history, while educational as to the intents of some enactors,
cannot be said to be even a fair indication of all its enactors intentions. In the absence of a
coherent notion of a unitary intention for a given statute, it seems that the only workable option
available is to consider the meaning of a statute to be limited to its text, as one can at least say
that all members of Congress have accented to its passing.
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A further objection might be raised that even the text cannot be said to be authoritative
under the criteria of enactment, as it is unlikely that every legislator has read and understood the
text he votes to put into law. While this might be true, it speaks more to officials dereliection of
duty, than to principle. Even if most legislators did nto read the text of a bill, it would render our
legislature inoperable if we did not at least assume as such, for the sake of practical
jurisprudence. As Scalia noted, in his view form is everything.
In the special case of Constitutional interpretation, Scalia’s claims become more difficult.
Here he argues that due to the special nature of the Constituion’s text, it is apparent that general
principles are articulated, rather the narrow enactments. He uses as an example the First
Amendment. In a completely narrow reading this amendment only protects the right of free
speech and press, but does not speak to the free use of telephones or electronic publishing. Scalia
rejects this reading, and states that in the context of The Bill of Rights, it is apparent that speech
and press are stand-ins for general principles of communication. One might object that this
departs from the text and speaks to intent, but he will counter that the text itself bears out his
expansive interpretation.
To elucidate the limits of its expansive language, he presents the counter example of the
Eitght Amendment. The prohibition on cruel and unusual punishment is certainly expansive,
general language, but he notes that the death penality cannot be included in these categories
because it is considered in the text of the Constitution itself, in the due process clause. Again,
Scalia binds himself to the plain meaning of the text as such. However general the meaning of
cruel and unusual is, it is apparent that execution is not included in these categories. Simply put,
where the Constitution is vague, its meaning is open for construction by judical authority, where
it is explicit it is not. In his comment on Scalia’s lectures on this issue.
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An interesting corollary of Scalia’s contextual approach, is the importance of a “dated”
rendering of textual meaning. In his view, we cannot interpret the Constitution according to the
plain language of our times, but only according to common usage when enacted. This stipulation
is consistent with the values of protected expectations mentioned above, but has special
importance when applied to the Constituion. The Cosntitution, according to Scalia, is manifestly
a document that seeks to make permanent the values of the group that enacted it. He argues that
if the framers wanted to simply set a system of governement that would change as the times
changed, there would be no need for a Constituion, because they would trust future generations
to act according to their own sense of justice. Therefore, he claims that the very extistance of a
Bill of Rights, indicated that the text should eb understood in a dated sense, as it is an inherent;y
“counter-evolutionary,” conservative document. Thus, despite the seeming appeal to the framers
intent, Scalia avoids this pitfall in stating that the totality of the document itself speaks to its
“dated” interpretation.
Thus Scalia’s textualism can be seen as a coherent mdoe of interpretation that views both
minor statutues, and the Constitution itself in a singular, coherent interpretive framework. As
was mentioned above, Scalia’s insistnec on this device of interpretation stems from a
commitment to the Conventionalist notion of protected expectations as a central virture of
legitimate government. While this view of law has its own objections, Scalia’s practical
extention of those views cannot be attack as inconsistent or faulty in their own right.
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