Speaker 1Jesus don't cry You can rely on me, honey You can combine anything you want
Speaker 2Got a lot, lot to cover today So, gonna keep it Short on the hilarity And just kind of dive right in What I'm gonna try to do today Is I'm gonna try to present The meat of Dworkin's theory And what I'm gonna try to do in part Is to disabuse people about Law's integrity That is, law's integrity People tend to think that Dworkin's theory Is his theory of law's law's integrity And that's, I mean, that's partially true It plays a role in his theory But his theory is much larger than that And so what I'm gonna try to do Is try to lay out systematically How Dworkin thinks about legal interpretation And then try to show Where law as integrity fits into it I think that there's often confusion How constructive interpretation How making the law the best that it can be How that plays a role And what's complicated And what I'll try to get to Is the way in which Dworkin's theory Uses constructive interpretation twice That there are two levels of legal interpretation And they really need to be kept separate And constructive interpretation comes in at both levels But it's only at the second level That law's integrity comes in So anyway, enough about how I'm gonna try Oh, that's my cat Come here Say hello to everyone Come here Come here Say hello to everyone on the podcast Here, say hi Okay, well I love my cat My cat's My cat's a cat Cat's so smart And she's really cute But she's kind of pesky Anyway, let's start here Recap Okay, so we have this debate between Positivists and natural lawyers And positivists say That the law ultimately depends on social facts And Hart has this theory of the rule of recognition Yada, yada, yada We talked about that Dworkin says no Morality Really is at the foundation of law And we can see this by looking at hard cases You'll see that judges look to morality To decide hard cases And positivists can't explain that And then positivists say No, no, no, no, we can't explain it Either the rule of recognition Actually has, as its criteria of legal validity Moral principles To resolve hard cases Or if you're an exclusive legal positivist You say that No, the rule of recognition requires judges To apply moral principles That doesn't make those moral principles Into legal principles We've talked about this Yada, yada, yada The second act in the Hart-Dworkin debate And what we talked about last week Was that both the exclusive And the inclusive legal positivists Both accept the idea that Whatever the criteria of legal validity are Whether you want to be an exclusivist Or an inclusivist Whatever they are They're determined by consensus And so you look to what In a given legal community Legal officials are taking as The criteria of legal validity Or to use Dworkinian language The grounds of law And you try to figure out What those are And then you apply them in particular cases But Dworkin says, wait a second That assumes That there is consensus About the grounds of law But in fact, what we find Is that there are these disagreements Which he calls theoretical disagreements Which are disagreements about What the grounds of law are But if they're disagreements About what the grounds of law are And the grounds of law Can only be determined by agreement Disagreement implies the absence of agreement And so therefore Positivists can't explain The very possibility of Theoretical disagreements Dworkin says, okay Given the fact that Theoretical disagreements are Very common How do we explain it? He would explain it by This process What he calls constructive interpretation And constructive interpretation is Imposing a purpose On, in this case, a social practice In order to make it the best The best possible example Of the thing that it is So if you're trying to Constructively interpret the law What you try to do Is try to make legal practice The best that it can be Now, how do you make the law The best that it can be? Well, first of all In constructive interpretation You try to make the thing The best that it can be Given the kind of thing that it is In literature Literature You try to make The text The literary text Aesthetically Aesthetically the best that it can be In the case of law You're trying to make it Morally the best that it can be Because law The value of law Is moral Now, how do we make Legal practice the best that it can be? Well, we talked about last week This idea of fit and justification An interpretation must fit To the extent that You're saying that Whatever the Practice is Is in fact what it is Is in fact what we see in the practice So that the interpretation fits To the extent to which What you're saying The interpretation is Is in fact what people are doing That's it fits And that it's justified To the extent to which The practice is worth practicing Okay? So that's the That's So you And you have to figure out How The extent to which An interpretation fits And justifies The practice And that there's going to be a trade-off Between fit and justification Some interpretations might have Really good fit But not great justification And another interpretation might have Lousy fit but great justification So you have to figure out What the balance between fit and justification is To make something the best that it can be Now, Dworkin says Look, we can Explain how people are making How people are disagreeing about The interpretation of fit and justification The interpretation of social practice Because they're disagreeing about The best interpretation of it And since interpretation involves Fit and justification They can be disagreeing about How well an interpretation fits Or how well An interpretation is justified Or what's the balance between Fit and justification So the thing is What's really nice about Dworkin's model here Is that If what you're trying to do is make Legal practice the best that it can be And make something the best that it can be Involves fit and justification You can imagine lots of different kinds of disagreements So what Dworkin is going to do Is he's going to apply constructive interpretation To the law and ask He's going to say What would the grounds of law have to be In order to make Legal practice the best that it can be In other words Which grounds of law Both fit and justify legal practice Okay Now I want to be clear about this Because this is I mentioned this at the beginning And this is something that We're going to be very focused on There are two stages To legal interpretation for Dworkin First You want to know What the grounds of law are Okay And in order to figure out What the grounds of law are You have to Try to Figure out What would make Legal practice the best that it can be If those were the grounds of law But then Once you've In the first stage Figured out what the grounds of law are Then you have to apply them In the second stage You have to figure out In a given case Do the grounds of law apply For given propositions of law So that you can say Oh, this proposition of law is true Therefore the plaintiff wins Or this proposition of law is false Therefore the plaintiff loses Okay So you've got Two stages One What are the grounds of law Stage two Apply the grounds of law Okay Now what What's really tricky and what I'm going to try to walk through in this episode is that for Dworkin, constructive interpretation happens twice. It's an oddity of Dworkin's view. I mean, he thinks it's a feature, but it's a bug in terms of understanding it, is that when you engage in constructive interpretation at the first level, that is trying to make the law the best that it can be in figuring out the grounds of law, it's going to turn out that the grounds of law are themselves the principles which make the law the best that it can be. I know that's confusing, and I'm going to try to explain it, but before I do that, let me just set out a little bit more of the basic framework. Dworkin approaches this first stage of interpretation. In two sub-stages, okay? First, he tries to figure out what the concept of law is, okay? And then he tries to figure out the right conception of law, okay? So it's like he has this concept-conception distinction. The concept is like, we're going to try to figure out what the law is or what would make it the best that it can be at a very, very abstract level that everyone would agree. And then we're going to come up with a conception of law, which is a kind of a more precise characterization of what makes the law the best that it can be. And what Dworkin's going to do is he's going to set out three different conceptions of law, and he's going to ask which conception makes the law the best that it can be. That is, each conception of law purports to make the law the best that it can be. Which one actually makes the law the best that it can be, okay? So we're going to start with what Dworkin thinks the concept of law is, and then we're going to go through three different candidate conceptions of law which purport to make the law the best that it can be. And then we're going to—I'm picking up my cat here and petting her while I talk about this. And then we're going to go through each conception of law and try to figure out whether, in fact, it makes the law the best that it can be. Let me just—before we break for part one, let me just talk about what Dworkin thinks the concept of law is. Now, this isn't a concept of law in a different sense than Hart's concept of law. This concept of law for Dworkin is like a very abstract characterization of—very abstract interpretation of what law is. Okay. Kind of like no matter who you are, we can all at least sign up to this understanding of what makes law valuable, okay? So he wants to have some understanding of what makes law a good thing to have, an important thing to have, that no matter who you are, you're going to sign up to this. Because he thinks that this is going to help focus. The discussion of what the right conception of law is, and each conception of law will set out a different theory about what the grounds of law are, okay? So let me just talk about what he thinks the concept of law is, okay? I'm quoting here from page 93 of the concept of law. He says, 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 useful that would be to ends in view, no matter how beneficial or noble these ends, except as licensed or required by individual rights and responsibilities flowing from past political decisions about when collective force is justified. So the idea here is, no matter who you are, you're going to agree that what law is— —is about is ensuring that the state does not use coercion unless it is compatible with the rights and responsibilities which flow from past political acts, okay? Now, it doesn't tell you why past political— —acts matter in constraining the state's exercise of coercion. Remember, this is a concept of law, so we're trying to— —we're specifying this at the kind of very abstract level. He's saying, like, one of the things everyone's going to agree about is that the law is about saying that even if state coercion would be used for a good purpose, even if it would make the world a better place, you can't do it unless— —the state has the right to do it or it's not interfering with other people's individual rights. Now, notice this is a very 1960s, 1970s conception of what the law is. I mean, Tworkin thinks that this is a very—like, everyone's going to sign on to it. I don't—I wouldn't sign on to it. This is like—the reason why I say this is a 1960s, 1970s view about what the law is is the idea is that the state exercises coercion and the law is there to— —to constrain the state. But that seems to me like a kind of—to me, at least, a weird way of describing the law. I would think that the law doesn't just limit the state, but the law guides the state. The law doesn't just say, hey, you can act in this way provided that you have a legal right to do it, but that the legal rules guide the state. In the exercise of its coercion or the exercise of its guidance. That is, it's not—the law doesn't just limit. The law also enables and also confers power. Anyway, I just want to flag this as, in some sense, the kind of—Tworkin's in sending out this abstract characterization of what everyone's going to sign on to. I don't think that everyone would sign on to it. I wouldn't sign on to it. But regardless, we're trying to set out his theory. What I'm going to do is I'm going to break, and we'll talk about three conceptions of law. And we'll go through and see whether they best fit and justify past political acts using the process of constructive interpretation. And we'll be back. And I'm going to actually go feed my cat now. Because she's driving me a bit nuts. Okay, see you in a bit. Okay, that's Smashing Pumpkins, Melancholy and the Infinite Sadness. It's a very beautiful intro. So I think I'm doing beautiful intro. Intros for today. We're in part two of talking about Tworkin's theory. We just talked about Tworkin's idea of what the concept of law is, which is those rights and responsibilities which constrain state coercion. And so what we're going to talk about now is three different conceptions of law which purport to put legal practice in its best light. Okay, the three conceptions that we're going to talk about are conventionalism, pragmatism, and law's integrity. Okay, those are the three, and he's going to test them. And he's going to argue that law's integrity wins. But before we get there, I want to say, just really drill down exactly what a conception of law is. Okay, conception of law, as I said, it's an interpretation of a particular legal practice. Now, again, it's an interpretation of a particular. So it's an interpretation of American law, it's an interpretation of Roman law, it's an interpretation of law in Saudi Arabia. It's an interpretation of a particular legal practice. And what it does is it purports to identify two things. Okay. okay? One is the purpose, the moral purpose of the practice, and two, the sets of facts such a purpose commends as the grounds of law, okay? So it does two things. It identifies a purpose of the practice, and what, based on that practice, the grounds of law should be. Now, a conception of law presents legal practice in its best light when it fits and justifies the practice. That means it fits the practice to the extent to which the facts that it specifies as the ground of law are actually recognized by legal officials in that system as the grounds of law. And it justifies legal practice to the extent to which the purpose it expects is the grounds of law. And it justifies legal practice to the extent to which the purpose it expects is the grounds it assigns to legal practice is morally justifiable, okay? So the idea here is a conception of law sets out a purpose to the legal practice in question and what the grounds of law should be given that practice. And a conception of law fits and justifies that legal practice to the extent to which the grounds of law that the conception of law sets out actually fits that practice, or actually the grounds of law recognized by that practice. And the purpose that is assigned to law by that conception is actually a purpose that's morally justifiable, okay? Let's put meat on the bones here and talk about conventionalism. Now, conventionalism says that rights and responsibilities flow from past political acts when the rights and responsibilities are explicitly enacted or decided by those acts. That is, if you want to identify what the grounds of law are in a particular legal system, look to the conventions of that system. And the purpose of conventionalism is to identify what the grounds of law are in a particular legal system. That is, conventionalism assigns the following purpose to law. The purpose is to give people fair warning and to protect their expectations about how the state is going to act. So if we said that a conception of law has two parts to it, that is, what's the purpose and what's the grounds of law, conventionalism says the purpose is to give people fair warning and protect their expectations, and the grounds of law are those given by convention. And the relationship between the two, obviously, is that if you respect convention, you will be protecting people's expectations. And you will be giving them fair warning because, well, everyone knows what the conventions are. Okay? Now, this sounds like legal positivism, and it actually sounds like exclusive legal positivism, but it's important to see that it isn't. Legal positivism is the view that convention determines what the grounds of law are, but not because it makes the law the best that it can be. It does because it's like, it thinks that that is the best, because that's what, that's how the law is physically determined. Conventionalism is the Dworkinian spin on legal positivism. It's, if you used constructive interpretation and used his procedure, if you used his moralized procedure for trying to figure out what the grounds of law are, you might come up with something that looks like legal positivism if you thought that the moral value of law is that it gives people fair warning and protects their expectations about state coercion. Okay? So, conventionalism is like legal positivism if you were a Dworkinian. Okay? Now, Dworkin says, should we accept conventionalism? Well, we should accept conventionalism if it fits and is justified. Does it fit? Well, Dworkin says, is it true? Oh, I'm sorry, I left out one small part to it, right? So, the, a conventionalist thinks that the grounds of law are determined by convention because if you listen to convention, if you always act according to convention, you'll give people fair warning and protect their expectations. But when the conventions run out, then you can act in the way that you think is best. And that this kind of giving judges discretion about what to do when the conventions run out, this gives judges a degree of flexibility. So, conventionalism is both the protection of expectations plus giving officials a degree of flexibility. So, it's kind of like, we listen to conventions because that way, we can act in the way that we want to act. We'll give people fair warning, but when the conventions run out, that gives us a degree of flexibility. So, it's like a kind of good mixture of giving people fair warning, but also giving judges and legal officials flexibility to tailor particular decisions when the conventions run out. So, Dworkin says, does this fit? Is it true that judges actually look to convention to decide whether legal propositions are true or false? And when the conventions run out, they decide what they think the best thing to do is, as if they were legislators. And this is where Dworkin says, no, no, this is just not the way legal practice actually works. That is, even when the conventions run out, people still disagree about what the grounds of law are. That is, they don't just say, oh, let's just listen to what the conventions are when there are no conventions anymore. Then we're in the penumbra, we're in a space where we can do what we think the best thing to do is, as if we were legislators. No. Even when there's disagreement about what the grounds of law are, even when there's no convention as to what the grounds of law are, there's still disagreement about what the grounds of law are. And so, Dworkin says, no, no, this is just not the best thing to do is, as if we were legislators. And so, Dworkin says, no, no, this is just not the to still feel constrained by the law. They don't act like legislators. They act like judges trying to find what the law is. So conventionalism doesn't actually fit because there's not like this sharp distinction between, okay, the grounds of law are determined by convention, and when the conventions run out, then we get to do what we want. No, judges and legal officials don't just look to convention. They try to figure out what the grounds of law are in some other way. So conventionalism doesn't fit, according to Dworkin. And it also is not justified because Dworkin says the justification of legal practice, according to the conventionalists, is that it gives people fair warning and protects their expectations when there are conventions. And when the conventions run out, then it gives judges, a degree of flexibility to tailor according to as they see fit. And what Dworkin says is that this balance between fair warning and flexibility, although important, he says, it doesn't seem to track cases where there's convention or no convention. I mean, sometimes it's good to be, have flexibility, even when the conventions are clear. And sometimes it's good to protect people's expectations, even when there are no conventions. So he thinks that this, the justification that conventionalists give about this optimal mix between giving people fair warning and giving the law some degree of flexibility, when tied to convention, actually is not a very good justification of legal practice. Because sometimes you want flexibility when the conventions are clear, and sometimes you want to protect settled expectations, even when the conventions are unclear. I don't expect you to find this to be a particularly good argument. But this is the argument that he makes. Okay? So he knocks off conventionalism. The second one is, and I think it's a good argument, is that the conventionalists, even when the conventions are unclear, I don't expect you to find this to be a particularly good argument. Okay? The second one is, you know, I don't know if you're familiar with this, but you know, the second one is pragmatism. Now, pragmatism is, I mean, he calls it pragmatism, but it's just, Richard Posner's theory of interpretation, pragmatism just rejects the idea that the past constrains the present. And a pragmatist just thinks that what judges should do is make a decision that makes the community as well off as it can be, regardless of what happened in the past. I mean, what happened in the past might affect what judges should decide in terms of making people's welfare, improving their welfare, but it doesn't really constrain judges. It's just like a fact of the world that judges have to work with. Now, Dworkin's right to think that this is not actually a good conception of law. It's actually a skeptical conception of law because it basically says that what legal officials did in the past doesn't really matter. It's just one factor like the weather. And like, you know, the price of gold or whether there's a pandemic going on. There's lots of things that affect people's welfare. The law is just, past political acts are just one of them. But it's not special. There's no special thing about the law. It's just one factor among many. That's, that just seems that, neither fits the way judges think of past political acts, nor as it seems particularly justified. I guess if you're like a Posnerian, you think it's justified. But if you think that there's something more to morality than just making people improving, maximizing people's welfare in the future, you're not going to find pragmatism very appealing. Then there's, there's this thing called law's integrity. Okay. Now, what is law's integrity? Law's integrity says that rights and responsibilities flow from past political acts when they are conferred and imposed by principles and policies that portray these political acts in their best light. Okay. Now, this is a bit confusing. Okay. But I'm going to, I'm going to, let me, let me try to, let me try to drill down on it. Okay. If we want to know what makes the law the best that it can be, law's integrity says that, you know what would make the law the best that it can be? If the grounds of law were determined by the principles and policies which makes the law the best that it can be. Okay. Get that? Okay. Conventionalist says, you know what the, the law the best that it can be? If you follow convention. The law's integrity person says, you know what makes the law the best that it can be? If the grounds of law are determined by the principles which makes the law the best that it can be. Now, why would you think that the grounds of law should be determined by the principles and policies and makes the law the best that it can be? Well, that's because, this is what the law's integrity person says. And, it, the purpose that is furthered by those grounds of law, is the ideal of integrity. What is integrity? Integrity is acting according to the sets, the set of principles and policies that are, consistent across all members of the community in all cases, that his integrity is treating everyone according to principles that present everyone, that treats everyone the same way, by the same way, though morally the same way. So this is a quote. Integrity requires governments to speak with one voice, to act in a principled and coherent manner towards all its citizens. Let me give you an example. The example is if, let's say, the state treats people who have black hair in a certain way, and as it gives them certain rights, then they should treat people who have red hair in a certain way, in the same way. That's to act with integrity. Let me give a less silly example. Let's say that when you're talking about malpractice, let's say you say, the law says that doctors, if they treat their patients negligently, they can be sued for malpractice. Well, there's a certain set of principles associated with that, which is that people, professionals, owe their clients duties of care. Now, if that's the case, then accountants should be held liable. If they act negligently towards their clients, or lawyers should act, it should be held liable for their acts of negligence with respect to their clients. That is, if we treat doctors in certain ways, then we should treat accountants in those ways, in the same ways, and not just accountants, but lawyers as well. Why? Because they're all members of the community. And if a set of principles, if they're all members of the community, then they should be held liable. And if we treat them in some way, then we have to treat the others in the same way. Now, of course, accountants may be importantly different than doctors, so that the principles that apply to doctors may not be the same, may not require the same thing when it comes to accountants. In that case, we could treat accountants differently, because the principles require us to treat doctors in a certain way, don't require us to treat accountants in the same way. But the point is, is that whatever principles we are using to treat some people, some members of the community in one way, we should use to treat everyone in that way. This is the idea of integrity. Now, crucially, the notion of integrity here is the notion of wholeness, of oneness. And it's a bit different than when we talk about integrity in other contexts. Like, a lot of times when we talk about integrity, I think this is kind of confusing to people, but sometimes when we talk about integrity, we mean that if you made a mistake, you should correct it. So, if I said, if I made a mistake in treating one student in a particular way, what I should do is not continue that mistake, but I should admit that I made a mistake and not treat other students in that way. To have integrity means to own up to your mistakes. This, to work in a notion of law as integrity, is almost the opposite. It's that if we treat some members of the community in a certain way, even if we treated them mistakenly, even if the decisions that we made with respect to them were in error, the ideal of integrity requires us that we treat other members in that way, too. So, the ideal of integrity requires that we continue our mistakes into the future because we're required to treat the community, the whole community, according to a coherent system of principles, even if those principles were not the best principles. Now, if those principles were really, really bad principles, we may be required to junk them. But unless those principles are really, really bad, we'll be required to extend those principles to other cases because we're supposed to treat the community according to a coherent set of principles. Okay? Now, what principles are those? Those principles are those that take past political acts and present them in the best light. So, again, I know this is confusing, and I'm going to break here, but again, the idea here is for laws integrity is what's the purpose of legal practice? It's to treat everyone according to integrity. And what does integrity require in terms of the grounds of law? It requires that the principles and policies are the grounds of law that put past political acts in their best light. That fit and justify past political acts. So we put past political acts in their best light when we take as the grounds of law the principles and policies that best fit and justify past political acts. Okay, I'm going to try to explain how that works after the break. Okay. First of all, I want to say thank you to all of you who have contributed to this program, and I hope that you will continue to contribute to it. Thank you. Okay, that's one of my favorite intros of a song. That's Bruce Springsteen, Jungle Land. I'll have us. Take us out at the end of the podcast, if there's anybody continuing to listen. I really feel like I did an unbelievably poor job explaining this Tworkin's theory here. It's complicated, but that's no excuse. Let me try to make. Let me continue. Let me continue on and see if I can do a better job. Okay, so we said that in order to figure out what the grounds of law are, we had to figure out what the best conception of law is. We discussed three conceptions. One, conventionalism. We said that doesn't fit and justify legal practice. Then pragmatism. We said that doesn't fit and justify. And then finally, we're talking about law's integrity. Law's integrity. Law's integrity attributes the purpose of. By the way, should I just say, does anybody. Well, it's anybody. I mean, you can't respond to this. I was going to say, does anybody know why it's called law's integrity? It's weird, right? Because the first conception of law is called conventionalism. The second one is pragmatism. So they're both isms. But then the third is called law's integrity, which I kind of always felt weird about, right? Because it breaks the symmetry. And I think the reason. The reason why he's doing it is because Dworkin is trying to pattern his conception of law on Rawls' theory of justice. And Rawls' theory of justice, which was a conception of justice, Rawls called justice as fairness. And so what Dworkin is saying is that the best interpretation of justice is as fairness, but the best interpretation of law is. That's why it's law as integrity. Because Rawls' was justice as fairness. This is law as integrity. So the purpose of law as integrity, the purpose of law according to law as integrity is to promote integrity, the idea that we should treat everyone in the community according to the same set of principles. And the grounds of law are those which present past and present. political acts in their best light. Now, does law's integrity, does it fit? Now, Dworkin says, yes, it fits. Why does it fit? Because law's integrity can explain something that other conceptions of law can't, which is that it can explain our abhorrence of what he calls checkerboard statutes. What's a checkerboard statute? A checkerboard statute is something that where the statute makes completely arbitrary distinctions on matters of important principles. So, for example, there's a big debate in the United States about pro-life and pro-choice, about whether women should have the right to terminate their pregnancies. We would never know. This is, of course, very contentious. Americans are split on the question of abortion. We would never say that an acceptable resolution of this controversy would be to say that women who are brunettes get to have abortions and blondes don't, or women who were born on even days get to have abortions, those on odd days not. That would be what Dworkin calls a checkerboard statute, that it would be making a distinction based on some arbitrary measure. That is, we would think that there was something abhorrent about having the state engage in arbitrary decision making, even if it's trying to respect a kind of disagreement. You don't respect a disagreement with integrity when you make arbitrary distinctions among members of the community. And so, law as integrity can explain why we don't engage in checkerboard solutions to political disagreement, because that would not be acting in ways with integrity. So, therefore, law as integrity fits. Now, before we move on to whether law as integrity is justified, I just want you to notice how there's something just absolutely ridiculous about what Dworkin's doing here. So, conventionalism is wrong because it doesn't fit. Some aspect of legal practice, namely that theoretical disagreements. But law as integrity fits because it does, because it fits an aspect of legal practice. This is, this is, this is like an unfair comparison. Like, conventional, conventionalism fits some aspects of legal practice, just like law as integrity fits some aspect of legal practice. But somehow, Dworkin accepts law as integrity because there's some aspect of conventionalism that it does fit. Like, you could just very well say that law as integrity doesn't fit our, the American legal practice because we have the practice of federalism, right? I mean, federalism is a kind of checkerboard solution. Why not say that law as integrity doesn't fit federalism, so, therefore, law as integrity gets knocked out of the box? But, of course, Dworkin never does that. He just says, law as integrity fits something, therefore, it fits. Conventionalism doesn't fit something, therefore, it doesn't fit. But that's not the right way to do constructive interpretation. You don't just see whether one conception doesn't fit. You don't just see whether one conception fits, and then knock it out, and then see if another conception fits, and then accept it. You have to see what fits, what aspects each conception fits, and what it doesn't fit. You don't just see whether one conception fits, and then knock it out, and then accept it. You have to see what fits, what aspects each conception fits, and then knock it out, and then accept it. Why the state is justified in imposing coercion, it's not because we've consented. It's not because it's fair. It's not for any other reason. reasons that political philosophers have always mentioned. It's because we're part of what he calls a fraternal community, according to which we all live according to the same sets of principles. Because we live according to the same sets of principles, the state has justification to coerce us. And that generates what he calls associative obligations to obey the law. If you think that the state is justified because we, when, and to the extent to which we live in a fraternal community where we all live according to a common set of principles, then it will turn out that integrity is justified. Because it's precisely integrity which says that we all should live according to a common set of principles. Now, again, I really don't want to investigate this because in order to really drill down on this, what you have to do is kind of intense political philosophy. You really have to go through all the different theories of political obligation and the justification of state coercion. You have to say, you know, consent theories, are they acceptable or fair or not? Fair play principles, are they, theories, are they acceptable? What is a fraternal community, according to Dworkin? How important is integrity? I mean, there's lots of things you have to do. What Dworkin does is he says that law's integrity not only fits, but it's justified because of his theory of political obligation. Okay, again, I'm not asking you to accept it. I just want you to see the structure of the argument. The structure of the argument is, if you want to make the law the best that can be, you have to see whether your conception of law fits and justifies. Law's integrity fits and justifies. It fits because it explains why we hate checkerboard statutes. It's justified because it's the best explanation of our political obligations. Okay, if you accept law's integrity, how are you going to interpret the law? Well, what you're going to do is, and this is the second stage of legal interpretation. So remember, the first stage is we have to figure out what the grounds of law are. Law's integrity has won. The grounds of law are the principles which put past political acts in their best light. Now we want to interpret the law. So let's say we have a case that comes before us. Let's say we have a case involving accountants' liability for torts, for malpractice. We want to know, are accountants liable for their acts of negligence with respect to their clients? Now, in order to answer that question, Dworkin will say, don't look to what the grounds of law are conventionally specified. Let's look at what principles will best put past political acts in their best light. And once we figure out what those principles are, we'll apply it to the case of accountant liability. How will we do that? Well, what we're going to do is we're going to engage in kind of this, we're going to engage in kind of this consensus, kind of this consensus centric exercise of expanding outwards, coming up with principles which can justify cases viewed more and more abstractly. Now, how will we do that? So the first thing we do is we think to ourselves, okay, so accountants, should accountants be held liable for their negligence? Well, what's something in that neighborhood? Well, are doctors held liable? Are lawyers held liable? Are chiropractors held liable? Well, let's see, are they held liable? Are they not held liable? What has happened in the past? What are the past political acts with respect to these professionals? Well, we'll come up with a set of principles which can explain those decisions. Maybe doctors are, and lawyers are, maybe chiropractors are not. And then we'll see how that applies to the case. To accountants. But that's not going to be enough, right? Because we want to treat all past political acts. We want to see what principles justify all past political acts. And that is going to involve not just how we treat doctors, lawyers, chiropractors when it comes to malpractice. We want to figure out what principles apply with respect to people who shovel their sidewalks. When it snows, do we hold them liable? Because the principles that apply to them may be different than the principles that apply to doctors and lawyers. And maybe when we think about torts more broadly, the principles that can explain torts more broadly show that the principles that we've derived with respect to doctors and lawyers and chiropractors, we should get rid of them because they don't actually cohere with the principles that we've derived with respect to doctors and lawyers. So we actually want to broaden out our view and see what principles will fit and justify all of tort law. But we're not going to just stop there. Once we come up with the principles that apply, that fit and justify tort law, we're going to think, well, what about the principles that justify private law? So we're going to think about the principles which justify not just tort law, but property law and contract law and just enrichment. We're going to also try to take into account not just private law, but public law. So we're going to think about constitutional law and not just that, but maybe international law and administrative law. Because we want to come up with those principles which best fit and justify past political acts and apply them in our particular case, which is accountability and liability. So if you want to come up with those principles, you're going to take all past political acts, which include not just what we did with doctors and lawyers and chiropractors, but like everything the state does, and see which principles best fit and justify all of that. And we're going to see what those are, and then we're going to apply them in the case of accountability and liability. Now, who could do that? Well, this would be a superhuman task, just to, if you have to like take into account all of the past political acts, I mean, just to answer a question involving account and liability, you'd have to be superhuman. So this is why Dworkin calls his judge Hercules. Now, Hercules, can I just comment that I hate this, he calls him Hercules, but Hercules is somebody who's like, like, really strong. He's got like muscles. But here, like we want somebody who's superhuman in the sense of like, extremely wise, and extremely learned and has great moral sensitivity. I don't kind of think of Hercules as I think of like Lou Ferrigno in my head or Arnold Schwarzenegger or something like that. I think of Hercules as somebody who's superhuman. I don't think of Hercules as somebody who's superhuman. I always think that that's a weird thing. But that's why he calls his ideal judge. And this is, of course, an ideal. He doesn't think that judges can really do this in any particular case. It's in the ideal, what an ideal judge would do. Okay. Now, for Dworkin, and this is for Dworkin, you know, what would make the law the best that it can be is if in any particular case, judges decided those cases by taking into account all past political acts, figuring out which principles fit and justify all past political acts, and then apply those in a particular case. That's what would make the law the best that it can be. And that would explain why legal cases are so controversial, and why there's so much disagreement. It's because that not only do they disagree about what the grounds of law are, but even when they've settled on, let's say, the grounds of law should be law's integrity, they're still going to disagree about what integrity requires in a particular case, because they're going to disagree about which principles best fit and justify past political acts. So there's a double constructive interpretation. To figure out what the grounds of law are, you have to engage in constructive interpretation. What that tells you is that in the second stage of legal interpretation, you're to engage in constructive interpretation again. So you decide all cases by figuring out what fits and justifies past political acts. Now, I'm going to stop here, and I just want to say that I hope you, I think I'm giving an accurate representation of what, how Dworkin thinks about things. I think this is absolutely insane. The idea that, like, what judges should be doing, is engaging in this moral philosophical exercise that's doubly constructive is so antithetical to what I think what a judge should do. Um, um, that I find it horrifying. Um, I will tell you, um, uh, when I talk about the planning theory, uh, my own view about what judges should do, um, it won't look like this. Um, but, um, I just want you to know that like Dworkin really thinks of the judge as being a moral philosopher, um, and more political philosopher and, um, legal issues pose for him philosophical issues always. Now, some of them are really easy to answer. Some of them are really hard to answer, but they are at bottom philosophical. So like all, all legal questions are like deeply moral, political, philosophical questions. And what judges are doing or what they should be doing is answering these philosophical questions. Now, I think this is just not a great idea. Um, but I am going to, um, uh, uh, take us out with some jungle land. I hope you stay safe. Enjoy. Uh, your week and make it the best that it can be. Okay. Take care guys. And, and, um, and be safe.
Speaker 1Thank you. Thank you. Thank you.
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