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Published online by Cambridge University Press: 16 February 2009
This article discusses the place of integrity in Ronald Dworkin's legal and political philosophy. It presents integrity as a response to certain problems that arise in any society in which more than one contestant view about justice is allowed to determine public policy and legal principle. It also analyzes the relation between integrity and justice, arguing that although integrity requires citizens and officials sometimes to uphold policies or positions they take to be unjust, Dworkin is nevertheless wrong to present them as competing political virtues. Instead, integrity operates as a second-level concept, addressing situations that arise in a society where there is disagreement about justice (and where, therefore, there is no uncontroversial account of what justice requires to set against the requirements of integrity). The article concludes with some reflections on the role of individual convictions about justice in context of law and social action.
1. Dworkin, Ronald, Law's Empire 164–65 (1986).Google Scholar
2. See Waldron, Jeremy, Legislation, Authority and Voting, 84 Geo. L. Rev. 2185 (1996), at 2204–11.Google Scholar
3. Cf. Raz, Joseph, The Relevance of Coherence, 72 B. U. L. Rev. 273 (1992), at 307–8.Google Scholar
4. For the idea of the circumstances of justice, see Rawls, John, A Theory of Justice 126–30 (1971)Google Scholar, and Rawls, John, Political Liberalism 66 (1993).Google Scholar
5. See Waldron, , supra note 2, at 2197–99.Google ScholarSee also Benjamin Barber's account of “the conditions of politics,” in Strong Democracy: Participatory Politics for a New Age 120–38 (1984).Google Scholar
6. Dworkin, , supra note 1, at 166.Google Scholar
7. I am not convinced by what I take to be Joseph Raz's mischievous suggestion that Dworkin does not believe in coherence at all as a political ideal for judges: see Raz, , supra note 3, at 317.Google Scholar
8. Dworkin, , supra note 1, at 176.Google Scholar
9. Id. at 166.
10. It is interesting, though, that Dworkin denies that individuals must inevitably find themselves torn by conflicting ethical values: see his typescript, “Why We Are All Liberals,” (presented at New York University Law School, October 1995).
11. We can interpret Milton Friedman's argument in Chapter One of Capitalism and Freedom (1962)Google Scholar along these lines. Though he does not urge that the state should speak with many voices, he does think it an advantage for freedom when the community speaks with many voices (as he believes it does in a market society). For then, someone who dissents from a dominant or powerful view in society may still have somewhere to turn when he wants support for his minority opinion or resources with which to disseminate it.
12. See also discussion in Waldron, , supra note 2, at 2196–97.Google Scholar
13. Dworkin, , supra note 1, at 190–216.Google Scholar
14. Id. at 188–90.
15. Hume, David, A Treatise of Human Nature 494–95Google Scholar (Selby-Bigge, L.A. ed., 1886Google Scholar), bk. III, pt. II, sec. ii.
16. Hume, David, An Enquiry Concerning the Principles of Morals, in David Hume, Enquiries 186Google Scholar (Selby-Bigge, L.A. ed., 1902), sec. III, pt. I.Google Scholar
17. See also the circumstance of “limited strength of will” in H.L.A. Hart's account of these matters in The Concept of Law 193 (1961).Google Scholar
18. Dworkin, , supra note 1, at 176.Google Scholar
19. Id. at 216.
20. It is true, however, that a society in which decisions are taken on the basis of several competing views about justice is necessarily an imperfect society, if only because the competing views cannot all be true.
21. For a useful discussion, see Walker, Ralph C. S., The Coherence Theory of Truth: Realism, Anti-Realism, Idealism (1989).Google Scholar
22. Cf. Dworkin, , supra note 1, at 417 n. 5.Google Scholar
23. I am not assuming that this is an easy or self-answering question; all I am saying is that this question (easy or difficult as it may be) is the only basis on which Dworkin should be interested in approaching the problem of the meaning of “coherence.”
24. It is possible to make the test even tighter than this. Instead of asking how coherent a set of propositions must be in order to be regarded as a single view about justice, we might focus our attention simply on the issue of disagreement and conflict. Is the set of propositions capable of generating disparate prescriptions as to what is to be done about one and the same situation, i.e., prescriptions that directly contradict one another at the “all-things-considered” level? (See infra note 30, and accompanying text.) If so, it gives rise to the problems that spur our interest in integrity. That is what incoherence amounts to in this particular context. On the other hand, if a theory looks incoherent by some formal standard but does not or is not capable of generating such stark prescriptive conflicts in the real world, then its putative incoherence is not what we are interested in. The putative incoherence would be more a matter of political aesthetics than of the legitimacy-related issues invoked in Dworkin's discussion of integrity. (I am grateful for this point to one of die referees for Legal Theory.)
25. Dworkin, , supra note 1, at 178.Google Scholar
26. Id. at 272.
27. Id. at 273.
28. That is, he provides nothing analogous to Hume's distinction between moderate scarcity, in which no one can have everything he wants but in which rules of justice make sense for precisely that reason, and desperate scarcity, in which justice becomes impracticable because the great majority are in danger of going without almost everything they need.
29. Dworkin, , supra note 1, at 269–75.Google Scholar
30. Earlier in Law's Empire, Dworkin says that integrity is violated “whenever a community enacts and enforces different laws, each of which is coherent in itself, but which cannot be defended together as expressing a coherent ranking of different principles of justice…” (id. at 184). It is not clear, however, whether he means to suggest that the constructive task of the judge is rendered impossible once integrity has been violated in this way.
31. Id. at 188.
32. Id. at 178.
33. Id. at 177.
34. Thus, conflict is not the same as disagreement; in a case of disagreement, conditions (ii) and (iii) are satisfied, but not condition (i).
35. Id. at 177.
36. See Raz, Joseph, Practical Reason and Norms 39 (1975)Google Scholar
37. The possibility of strategic voting does not affect this. For the strategic voter does not alter his reasoning about the first-order issue once he discovers how others are likely to vote. He simply alters his voting behavior. Indeed, it is all the more important for his substantive reasoning to remain intact so that he can hold onto a healthy sense of the goal that his strategy is supposed to advance.
38. This analysis is along the lines of the suggestions made at the end of Wollheim, Richard, A Paradox in the Theory of Democracy in Philosophy, Politics and Society 71Google Scholar (Second series, Laslett, P. & Runciman, W.G. eds., 1969Google Scholar). The paradox of democracy is as follows: A person who voted for policy A, believing that policy A (and not policy B) is the one that should be implemented, is required by democratic principles to believe that policy B is the one that should be implemented in the event of B's attracting majority support Wollheim's solution is to distinguish between “direct” principles—like “Provision should be made for desperate need”—and “oblique” principles—like “Majority-decision.” But the basis of the distinction is never satisfactorily explained, and Wollheim offers only a sketch of the argument that is necessary to show that “A should be done” and “A should not be done” are not incompatible when the former follows from a direct principle and the latter from an oblique principle.
39. See Thomas Hobbes, Leviathan (Tuck, Richard ed., 1991Google Scholar), Ch. 18, and Thomas Hobbes, De Cive: The English Version (Warrender, Howard ed., 1983), ch. VI, sec. 6.Google Scholar
40. See Waldron, Jeremy, The Irrelevance of Moral Objectivity, in Natural Law Theory: Contemporary Essays 158Google Scholar (George, Robert ed., 1992).Google Scholar
41. If I were a civic republican, I might even say that this is a matter of civic virtue. Certainly it gives a fine gloss to the Machiavelli/Weber view that a good citizen values the salvation of the city above the salvation of his own soul. [See Weber, Max, The Profession and Vocation of Politics (1919)Google Scholar, in Weber: Political Writings 366 (Lassman, P. & Speirs, R. eds., 1994Google Scholar).] Here we will say that a good citizen values his society's effort to do justice above the implementation of his own view about what justice really requires.
42. Dworkin, , supra note 1, at 373.Google Scholar Dworkin attributes this objection (id. at 451 n. 12) to Bork, Robert, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 10 (1971).Google Scholar
43. See generally the discussion of external skepticism in Dworkin, , supra note 1, at 78–83.Google Scholar
44. See Thoreau, Henry David, Civil Disobedience, in Walden & Other Writings of Henry David Thoreau 644Google Scholar (Atkinson, Brooks ed., 1937Google Scholar): “If the injustice has a spring, or a pulley, or a rope, or a crank, exclusively for itself, then perhaps you may consider whether the remedy will not be worse than the evil; but if it is of such a nature that it requires you to be the agent of injustice to another, then, I say, break the law…. What I have to do is to see, at any rate, that I do not lend myself to the wrong which I condemn.”
45. Cf. the discussion in Jeremy Waldron, What Plato Would Allow, in Theory and Practice 138 (Shapiro, Ian & DeCew, Judith Wagner eds., 1995).Google Scholar
46. Emphasis added.
47. I am grateful to Thomas Pogge, Bob Hargrave, and Sidney Morgenbesser for conversations along these lines; but more are clearly needed.
48. Quoted in Postema, Gerald, Bentham and the Common law Tradition 54 (1986).Google Scholar
49. Id. at 55: “The sovereign has no special claim to wisdom, insight, or truth. The [social contract] simply erects the sovereign's garden-variety natural reason as the standard of right reason….”
50. This sense is clearest at the end of the book, where Dworkin talks of the special prominence of justice in the constellation of political virtues (Dworkin, , supra note 1, at 406).Google Scholar
51. Id. at 263.
52. Id. at 256.
53. Dworkin, Ronald, Rights as Trumps, in Theories of Rights 155–56Google Scholar (Waldron, Jeremy ed., 1984).Google Scholar
54. Id. at 157.
55. Id. at 155.
56. Dworkin, , supra note 1, at 211.Google Scholar
57. See also Copp, David, Could Political Truth Be a Hazard for Democracy? in The Idea of DemocracyGoogle Scholar (Copp, D., Hampton, J. & Roemer, J. eds., 1993).Google Scholar
58. Dworkin, , supra note 1, at 213.Google Scholar
59. Id. at 213.
60. Id.
61. In formal terms, the logic of “circumstances” is, roughly, the logic of presupposition.
62. See Sandel, Michael, Liberalism and the Limits of Justice 28–46 (1982).Google Scholar
63. Dworkin, , supra note 1, at 381–97.Google Scholar
