Just-Add-Water Ronald Dworkin

The main claim:

Dworkins contributions to moral and legal philosophy are vast, but our concern here will be
with a couple of fairly small but very important aspects: the difference between rules and
principles, and the idea of integrity as a part of lawmaking. The main claim is that simply
adverting to the law as it is written gives an incomplete account of what law is and should be;
there is room to introduce moral principles into legal reasoning.

Sometimes lawyers face hard cases cases in which the law is unclear, or in which
statutes

that

are

individually

straightforward

combine

to

give

(morally)

counterintuitive results, or in which it is clear that there is a gap in the law. For
example, the American case of Riggs v Palmer concerned Elmer Palmer, who stood to
inherit his grandfathers estate, and murdered him before he could change the will.
Palmer may have been tried for the murder; but even if found guilty, there was
nothing in the law at the time that expressly forbade him from inheriting the estate all
the same. This seems, at best, couterintuitive. (Riggs was one of the grandfathers
daughters, who sought to have the will declared invalid.)

How should judges representing the law respond? One option would be simply to
insist that judges should apply the law as it is written. But that wont account for
cases in which the law as it is written is in conflict with other laws, or in which theres
a clear change of context. In this sort of case, the problem is precisely that the law as
it is written is unsatisfactory. Dworkin asks us to imagine Hercules, a hypothetical
judge, who must interpret the law as a part of applying it.

One of the tools at Hercules disposal is a distinction between rules or laws, and
principles. In the very simplest terms, Dworkin thinks that laws are built on a
substratum of morally-informed principles that give shape and direction to the laws
they support.

By understanding the principles on which a set of laws is built,

Hercules will be able to apply those laws in the best way, even when the letter of the
law is unclear. These principles are themselves derived from the interpretation of the
data of law statutes, precedents, and so on. In other words, Hercules uses his

understanding of the law as it is to found a claim about law as it should be in this or

that particular case. Law is, for Dworkin, an interpretive enterprise (as opposed to a
positive one, as it is for Hart).

Law must have integrity; this is central to the interpretive enterprise. The integrity
of law is based on two things: horizontal integrity depends on current laws and legal
practices fitting together, while vertical integrity depends on their fitting with their
own history.

This is what hes getting at with the chain-novel analogy: in the enterprise of writing a
chain novel, each writer is free to develop the story as they wish, but there must be
some continuity each successive chapter must respect whats gone before, and cant
divert too wildly in terms of style or content. A novel must display this kind of
integrity: for example, the chapters of Moby Dick do vary in tone and style, but they
clearly hang together narratively and thematically. For Dworkin, the same applies to
law: its chapters statutes and the rulings that follow them must be interpreted as
though theyre parts of a coherent enterprise, and its the role of the judge to continue
in that enterprise.

Law as integrity imposes external purposive constraints on adjudication, and

there are three particularly important aspects of this interpretive approach. First, the
purposes that count in constructive interpretation are to be determined by the
interpreters, not by the authors or creators of the object or practice being interpreted.
Second, in the context of social practices like law or adjudication, the primary reason
behind stipulating an interpretive purpose is to propose value for the practice by
describing some scheme of interests or goals or principles the practice can be taken to
serve or express or exemplify. Third, constructive interpretation directs the
interpreters to link their chosen purpose with the normative criterion of betterment:
constructive interpretation is a matter of imposing purpose on an object or practice in
order to make of it the best possible example of the form or genre to which it is taken
to belong.

As a theory of constructive interpretation, law as integrity aims to impose purpose

over the [legal] text or data or tradition being interpreted, with the end of making that
text or tradition, or those data, the best they can be. Since Dworkin conceives of law

as a political enterprise, the overriding purpose (the point or value) of legal

interpretation is to show [] the legal record to be the best it can be from the
standpoint of substantive political morality.