Academic journal article Law and Contemporary Problems

The Limits of Integrity

Academic journal article Law and Contemporary Problems

The Limits of Integrity

Article excerpt

I INTRODUCTION

Stanley Hauerwas has long objected to "liberal presuppositions and theories" of law that "have sought in theory and practice to protect the law from politics." (1) His critiques flow out of broader objections to the contemporary liberalism of John Rawls and, to a lesser extent, the antecedents of Rawlsian liberalism in the postwar pluralism of Robert Dahl. (2) One of Hauerwas's chief targets is Rawls's public reason constraint, which limits the role of certain theological voices in considerations of law and policy. (3)

Hauerwas's arguments and the theological framework in which they are embedded can also stand against certain strands of legal theory. This article demonstrates that possibility by using Hauerwas to critique Ronald Dworkin's theory of law as integrity. Hauerwas's arguments reveal how Dworkin relies on secular, liberal presuppositions by rejecting appeals to "religious convictions or goals." (4)

Part II sketches Dworkin's interpretive theory, and part III notes its limitations. Part IV introduces Hauerwas's views on interpretation and suggests commonalities between Dworkin and Hauerwas. Parts V and VI illustrate the exclusionary effects of Dworkin's premises on Hauerwas's arguments by comparing the ways in which both thinkers approach the abortion controversy.

Hauerwas's arguments show that Dworkin has either imported his own normative commitments into his interpretive premises or failed to distinguish law as integrity from the constraints of public reason. (5)

II DWORKIN'S THEORY OF INTERPRETATION

Dworkin believes that what law "permits or requires depends on the truth of certain propositions that are given sense only by and within the practice" of legal interpretation. (6) For this reason, the process of identifying interpretive standards and how they change over time is partially constitutive of the practice itself. (7) Dworkin identifies four stages in this process: the semantic stage, the jurisprudential stage, the doctrinal stage, and the adjudicative stage. (8)

The semantic stage ensures that participants "understand the world in sufficiently similar ways and have interests and convictions sufficiently similar to recognize the sense in each other's claims." (9) Dworkin's recent formulation of the semantic stage suggests a seemingly benign starting point: "What assumptions and practices must people share to make it sensible to say that they share the doctrinal concept so that they can intelligibly agree and disagree about its application?" (10)

The jurisprudential stage includes "a general account of the mix of values that best justifies the practice." (11) Dworkin describes this stage as gathering the "tentative content" of the authorities that will inform adjudication. (12) He asserts that "[a] useful theory of an interpretive concept must itself be an interpretation, which is very likely to be controversial, of the practice in which the concept figures." (13)

In the doctrinal stage, participants "construct an account of the truth conditions of propositions of law in the light of the values identified at the jurisprudential stage." (14) A proposition of law is true "if it flows from principles of personal and political morality that provide the best interpretation of the other propositions of law generally treated as true in contemporary legal practice." (15) Participants "measure the success of a proposed justification" along two lines: value and fit. (16) Value describes ends that the practice serves--like justice, freedom, legality, democracy, liberty, equality, community, and patriotism. (17) Fit requires that any viable account bears some connection to the authorities identified in the jurisprudential stage to ensure continuity within the practice. (18)

Finally, in the adjudicative stage, participants ask "what political officials who are generally expected to enforce the law should actually do in particular cases. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.