Integrity

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Integrity

• The Goodness of Law
• Part 2
• Dr Lorenzo Zucca

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Dworkin and the point of Jurisprudence

• Jurisprudence is the general part of
  adjudication, silent prologue to any decision at
  law.
• Recall Rules v Principles (Foreground/Background)
  
• Positivism is wrong because it does not account
  of principles

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The Primacy of Principles

• Fusion Law Morality
• Constitutional Law human rights moral
  principles gt other laws

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An Example Roe v Wade

• Roe v Wade, 410 U.S. 113 (1973)
• State Federal laws prohibited or limited the
  right to abortion
• But XIV At (Due Process Clause) encapsulates
  right to privacy, an overarching principle that
  trumps contrary rules
• but conservatives disagree

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Law Disagreement

• Examples can be multiplied
• Euthanasia
• Gay marriage
• Use of stem cells etc
• Question How do we solve these problems?
• Positivist by applying the law.
• Q what if law runs out?
• By exercising discretion!

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Who should decide?
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A Forum of Principle

• Dworkin Courts are forum of principle
• Judges are trained to deal with disagreement
• They can succesfully articulate Principles
• They are used to solve hard questions
• They can come up with right answers
• by applying substantive moral reasons

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But right moral answers are not always easy to
find..
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Plus what role does law play?

• Dworkin believes that moral principles are all
  pervasive in the law
• But arent there any legal constraints?

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Statutes, Common Law, precedents Interpretation

• Conservative Textualism the text of the law must
  be respected Importance of literal
  interpretation
• Liberal Interpretation stress on precedents in
  the common law tradition
• Question What role for stare decisis?

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Integrity and Stare Decisis

• Constructive v creative (law v art/science)
• 2 Main features
• Fit (history plays a role)
• Justification (best light requirement)
• Make the most of the principles
• Backward and forward looking.

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Different concepts of stare decisis
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The Semantic Sting

• The Conventional understanding of law
• Dworkins attack on positivism
• Dworkins alternative interpretivist theory of
  law
• Interpretivism and Integrity

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Semantic ambiguities
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Interpretativism

• Dworkins alternative interpretivist theory of
  law
• Interpretivism and Integrity

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Should the law speak with one voice?

• Dworkin yes! It should do so by bringing
  morality to bear
• Superficial description is not sufficient
• A richer Interpretation must unify precedents and
  principles
• It must tell a story with a happy ending

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Chain Novels

• Q What is the role of the judge?
• Answer to tell the best possible story!
• E.g. Scrooge
• Q But How is that possible?

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Hercules, the judge

• A Judge with superpowers
• Knows all the precedents
• Has a firm grasp of moral philosophy
• And deeply values Integrity!

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Possible Criticisms

1. Assuming that morality is paramount
2. Fundamental Values Conflict
3. Eg conjoined twins Jodie Mary
4. Question what guidance can morality give?

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Hard cases and Right Answers

• Eg Physician assisted suicide
• A standard judge will have many doubts and
  acknowledge tensions
• Hercules will dispel the tensions and find one
  right answer
• What does right answer mean?
• Best fit and best justification

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Does positivism solve those cases?

• It depends on what you mean by solving
• It certainly does not provide a right moral
  answer
• It distinguishes between the law and morality
• but does not rule out moral principles. The law
  can introduce them directly (eg. HRA 98, good
  faith in contracts etc..)

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Epilogue

• Law as Integrity is an attitude, not a process or
  institution
• It is Interpretive not embroiled with semantics
• It is Constructive right balance between past
  and future
• It is fraternal it reflects the union of our
  community and the plurality of our projects
• The incoherence of the foreground (rules) and the
  coherence of the background (principles)?
• Right answers and happy endings?