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Spring 2001
Volume 00, Number 2

Newsletter on Philosophy and Law

Recent Law Review Articles of Interest
Abstracts

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"Why No Judge Should Be a Dworkinian Coherentist,"

Ken Kress
10 Texas Law Review 1375-1427 (1999).

This article is one part of Ken Kress's larger examination of claims about the role and normative importance of coherence in the law. The focus here is on Ronald Dworkin's coherentism (a/k/a the "rights thesis" and "law as integrity"). For Dworkin, law simply is the morally most appealing rendering that sufficiently fits (coheres with) prior legislative and judicial decisions. One central issue for interpreters of Dworkin is that of construing the relationship between moral appeal and coherence. Dworkin's "third theory" of law owes its distinctiveness to its attempt to locate an intermediate position between positivist and natural law approaches. Natural law prefers moral correctness to definiteness and descriptive fidelity; classical positivism the reverse. Although Dworkin's theory is less conservative than some believe, Kress argues, it leads to outcomes morally less satisfactory than what either the natural lawyer or the positivist would reach. In Kress's diagnosis, this irony is due to the fact that Dworkin's theory borrows the worst features of each of the older approaches; the key component of Dworkin's theory being legal principles (not moral ones) that lack the decisiveness of positivist legal rules.

Kress shows how Dworkin's theory in operation provides for the possibility of law's moral improvement through adjudication, as judges correct moral mistakes that can be cut away without reducing systemic coherence below a required threshold. But this meliorism comes at a price: the Lockean stricture against retroactive application of law will be violated whenever a party is deprived of the benefit of a morally incorrect but holistically superfluous precedent in her favor. This result is a consequence of a more general characteristic of Dworkin's theory. If one assumes that the moral weights assigned to legal principles are limitlessly discriminable-and Kress argues that Dworkin is committed to this assumption-then it can be shown that over time the tendency of legal practice will be to reduce systemic fit to the threshold minimum. The reason is simple: given the independence of fit and moral appeal, there will always be a good moral reason to sacrifice surplus fit to reach a more morally appealing result, but the converse is never true. It is never justifiable to sacrifice moral appeal to secure a more-than-minimally-required degree of fit.

Thus, the practical distance between Dworkin's "third theory" and its positivist and natural law alternatives depends upon the robustness of the operative conception of fit. Dworkin's abstract discussion of the fit requirement suggest a high threshold, but this is belied by his applications, where the level can be quite low. From Dworkin's concrete applications, Kress extracts four candidate conceptions of the rigor of the fit threshold: "almost none, some, pretty good, and nearly perfect." A further refinement is the recognition that, for Dworkin, "fit" must enter the interpretive process at two distinct stages. Fit at stage one is what distinguishes an interpretation of legal practice from the invention of one. But multiple, conflicting, interpretations may meet or exceed the stage-one threshold, and the interpreter is carried to a second stage at which fit expresses the ideal of the state acting with integrity, that is, as giving univocal expression to the moral/political principle of equality. In Kress's view, Dworkin mistakenly conflates the two stages and assumes that stage one is the only stage at which the "Fit with what, and in what degree?" question must be addressed. Moreover, stage two fit, unlike stage one fit, is not properly conceived in threshold-minimum fashion. Rather, Dworkin is committed to maximizing fit at stage-two, constrained only by a required balancing against other, distinct, political virtues such as justice and fairness.

Its melioristic tendency and its capability of operating with a very lax conception of fit at stage one suggest that Dworkin's theory is very appealing from a moral standpoint. But it would be too quick to draw that lesson, Kress warns. Dworkin's theory has to be evaluated against its competitors. Proceeding on the admittedly crude assumption that moral correctness is all that matters and that justice is all that matters to moral correctness, Kress compares Dworkin's theory and natural law with two varieties of positivism: Hartian and Razian, both of which enjoin the judge to do the right thing when the rules run out but differ in that Raz, unlike Hart, thinks that most cases are ungoverned by rules. The four theories-Dworkin's, natural law, Hartian positivism, and Razian positivism-are ranked in circumstances in which our confidence in the moral correctness of the ideology imbedded in legal doctrine may vary from high to low and, likewise, our confidence in the moral acumen of judges may vary from high to low.

At the first cut, we who are interested in justice will rank the four theories in this descending order of desirablity: natural law, Razian positivism, Dworkin's theory, Hartian positivism. (Raz over Dworkin because for Raz most cases allow judges to do what's best.) Now take some account of judicial fallibility in discerning what critical morality requires. If we generally approve the ideology of law but have low confidence in judges' moral discernment, we will rank the four this way: Hartian positivism, Dworkin's theory, Razian positivism, and lastly, natural law. If, on the other hand, we have greater confidence in judges' moral discernment than in the law's ideology, our ranking will go: natural law, Razian positivism, Dworkin's theory, with Hartian positivism last. In none of these crudely drawn scenarios would one interested in justice wish judges to be Dworkinian coherentists. Hence, no judge should be a Dworkinian coherentist.

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APA Newsletters

Spring 2001 Volume 00, Number 2

Spring 2001
Volume 00, Number 2