In Law's Empire, Ronald Dworkin advances two incompatible versions of law as integrity. On the strong thesis, political integrity understood as coherence in fundamental moral principles constitutes an overriding constraint on justice, fairness and due process. On the weak thesis, political integrity, while a value, is not to be privileged over justice, fairness, and due process, but to be weighed along with them. I argue that the weak thesis is superior on both of Dworkin's criteria: fit and justifiability. However, the weak thesis must be amended to allow for coherence in policies as well as in principles: the social consequences of legal decisions must be taken into accotint.
Hercules, the mythical reigning jurisprude in Ronald Dworkin's Law's Empire, 2 presides over what appears to be a foreign land. One usually thinks of the Anglo-American legal system as an organ of justice. But in Dworkin's judicial fiefdom, the ideal judge Hercules decides not according to what would be most just, but rather what makes the law and the legal system "the best it can be". On Dworkin's conception of the law as integrity, judges are obligated to decide cases in a way which makes the law coherent in principle, even though this may mean that at times justice must bow to integrity.
I would like to explore how it is that integrity is able to trump justice. Rather than contesting Dworkin's interpretation on the grounds that it sometimes allows integrity to override justice, I argue that Dworkin's version of law as integrity is unacceptable because its requirement that the law be made coherent in principle forces judges to always side with integrity over justice whenever there is a conflict. 1 I would like to thank Kenneth Kipnis for his helpful comments on earlier drafts. 2 Law's Empire (Cambridge: Harvard University Press, 1986). All parenthetical numbers are page references to Law's Empire, hereafter LE.