Dworkin has been criticized by supporters of Critical Legal Studies for his notion of law as integrity. Since the legislative process often involves conflicts of interest and views (Unger 1983, p. 571) and is a random rather than structured process (Balkin 1987, p. 15), one cannot speak of law as integrity. Once a difficult case emerges and multiple legal solutions seem possible, judges will eventually base their decision on their own political ideology. This means that legal reasoning in difficult cases cannot be distinguished from moral or political arguments (Klare 1982, p. 340), since lawyers and judges can argue on both sides of most legal cases equally, depending on the conflicting legal standards on which they rely (Altman 1990, p. 15; Balkin, 1987, p. 427). Is that really the case? If so, is it methodologically reasonable to use Dworkin`s ideas on law as a starting point for legal research? There is no denying that the law is not a fully coherent system.
It consists of so many different rules and sometimes ambiguous basic principles that it can be difficult to find the correct interpretation of a rule that fits into a coherent set of rules and can be justified. But the law cannot be seen as a patchwork of rules. Although it is an imperfect system of rules, it is a system. Lawyers and academics strive to have a more coherent system through interpretative debate. They agreed to ensure to each other the best possible interpretation of a legal practice, taking into account the principles underlying that practice (Dworkin 1986, p. 13). The correct answer in a difficult case is not the answer that is irrefutably correct (“a claim of physics”, Dworkin 1986, p. 80), but it is a constructive statement made in legal practice by one of its participants. Every point of law is a matter of interpretation. I agree with Soeteman that the correct answer to a case is the best possible response, or in other words, the answer that can best be supported by arguments. This response could be controversial and therefore contested. However, this does not mean that it is impossible to find the correct meaning of a rule and that it is not important for lawyers to seek the best interpretation (Soeteman 2009, pp.
232-233). This is very evident in the legislative process, where the legislator cannot establish rules that are incompatible with other fundamental rules and principles. The same goes for judges who cannot simply choose the solution they consider best; they must formulate their judgments on the basis of the arguments put forward by the parties and the existing legal paradigms (Rozemond 1998, p. 70). It would be contrary to the fundamental idea of the rule of law for judges to interpret the rules as integrity in accordance with the law (see Smith, 2009, p. 218).6x6x In this regard, I agree with Crowe that integrity has inherent value not only because legal practices that reject integrity are in themselves considered undesirable. but that it also has instrumental value: integrity is crucial to adhering to a certain set of fundamental principles that underpin the entire legal system (Crowe 2007, p. 174). In the next section, I give two examples of multiple liability cases in which judges have interpreted the rules constructively. After that, I will try to identify the coherence between two seemingly irreconcilable principles, which are also part of my research. The relevant notion of justification has two aspects. First, principles, and thus the moral facts that reflect them, give reasons why any aspect of institutional practice or other immoral considerations affect legal rights and obligations.
The principles therefore explain why such a consideration is legally relevant. Second, the principles therefore determine how such consideration affects rights and obligations. An interpreter might say that certain principles of fairness or procedural justice give orders in council a certain role in determining rights and obligations. The exact role depends on exactly why the regulations should have them. The invocation of the principles of fair publicity could, all other things being equal, play a central role specifically for the clear meaning of the text of legal acts. But in the event that democratically constituted assemblies have the legitimate power to shape rights and duties at will, a certain conception of the linguistic intentions of these assemblies or of their intention to influence the law in a certain way by the corresponding decree may prevail. There may be special cases. An interpretivist might argue that, because fair notification is essential to the lawfulness of the criminal sanction, criminal laws affect the law only in a strict interpretation. An interpreter might go on to say that in all cases, certain more specific moral principles “control the operation and effect” of all laws (as Riggs v. Palmer Court, 115 NY 506 (1889) put it). But if the norm is partly external in this sense, it is not in another. Participants are open-minded about what their practice in its current form requires, what it does.
If they are inclined to correct their current practice to adapt it to a new and better interpretation, they assume that the new interpretation better articulates the standard to which they have previously subscribed, rather than persuading them to replace the old, more attractive standard with a new, more attractive standard (cf. Burge 1986). Now, this claim seems pretty clear (even if it`s false); but it does not solve the following difficulty: even if we accept that practitioners` own understanding means that a true conception of legal practice must present practice as desirable, it remains difficult to understand why, as Dworkin argues, true conception needs current legal practice as the most desirable. On the other hand, the considerations examined clarify the legal relevance of institutional decisions: decisions are legally relevant as institutionally valid norms that impose obligations that are genuine moral obligations from the point of view of the system (Raz 1990; contra Hart 1982). At the same time, they regulate the conditions under which the subsequent question of the real normative relevance of decisions must be raised. It becomes the question of whether institutional communication works as advertised, so that it actually creates standards (standards that are absolutely valid, not just in the eyes of the institution that produced them) and whether subjects therefore acquire an obligation to do something because the institution in question said so. In summary, the question of the truly normative relevance of institutional action to the question of whether institutions have legitimate authority is understood in this way (Raz 1990). Finally, these considerations leave open the question of what moral conditions must be met in order for the institutions to have legitimate authority. This is the case of theories of justification of authority, which include theories that invoke consent, political association, democracy, or the ability of legal authority to obtain cooperation or to help subjects better conform to correct reason.
(For an overview, see the entry on authority; see also Finnis 1980, 1989; Raz, 1986; Dwork in 1986.