In order to evaluate whether ‘law as integrity’ resolves the problem of the fragmentation of law in transitions it is necessary to discuss the Hart-Dworkin debate. It is not possible to deal comprehensively with all the nuances and propositions involved in this debate. As Scott Shapiro has argued, this ‘debate’ is really several different debates. It deals with a host of inter-connected issues. It involves several different contributors.
Yet, the Hart-Dworkin debate is fundamental to the question at hand in one important respect. James Gallen’s version of the jus post bellum relies on Dworkin’s theory of ‘law as integrity’. A central aspect of Dworkin’s theory is that there is a fundamental coherence to law and legal reasoning. This coherence is founded in the moral and political principles of a political community. Thus, Gallen’s jus post bellum makes the same claims about post-conflict law. Firstly, that there are political principles that underpin transitional societies. Secondly, that these principles are the foundation of the jus post bellum as integrity. The following section explains the Hart-Dworkin debate. This makes it easier to see why Dworkin argues that integrity is a solution to incoherence.
The Hart – Dworkin debate
Dworkin’s theory of ‘law as integrity’ was developed in response to an earlier theory about the validity of law. This earlier theory can be categorised as legal positivism. Legal positivists share a central proposition: whether any law is valid and part of any legal system depends on its sources and not its merits.
This simply means that the law is derived from the acts of ‘officials’. It does not matter that the law in question is a bad law that officials should not have engaged with. Neither do excellent norms become law by virtue of their desirability. Law is law by virtue of its being posited, or practiced, or recognised by an official or institution of the State. This view of law and legal practice is sometimes known as ‘conventionalism’. The theory is that law is identified from the conventions of officials, for example, judges and legislators. The benefit of this view is that it promotes legal certainty. It does this by providing an easy method by which to give people fair warning about what the law requires and permits.
This positivist view of law has been very influential in modern international law. Legal positivism is recognised explicitly in Article 38 (1) of the Statute of the International Court of Justice. Article 38 sets out three primary sources of international law and two subsidiary sources. The primary sources are international treaties, customary law and general principles of law recognised by civilized nations. The subsidiary sources are judicial decisions of international tribunals and the writing of publicists (academics). As George Schwarzenberger has noted, the ‘significance of this enumeration lies in its exclusiveness. It rules out other potential law-creating processes such as natural law [or] moral postulates…’. International law derives from rules announced, practiced, invoked, enforced or endorsed by States. States are able to identify the relevant rules according to this positivist method. They are then able to modify their practice in relation to these posited rules.
Against Hart’s view, Dworkin argued that the law is much more than social conventions recognised by the relevant agents. His dissatisfaction with conventionalism derived from a study of how judges made decisions in difficult cases. Difficult or ‘hard’ cases are situations where the law is unclear. One classic example is the question of whether a skateboard is a vehicle for the purposes of a prohibition on vehicles in a park. There may be no explicit rule posited against skateboards in a park. Yet, the purpose of prohibiting vehicles may suggest that skateboards should also be prohibited from parks.
Faced with this type of problem, Dworkin argued that judges had to be more flexible in their application of the law than the theory of conventionalism permits. For Hart, the application of law in hard cases required judicial discretion. They would essentially create the law to fit the new situation. However, Dworkin was unsatisfied with this explanation. In Dworkin’s view, Hart’s concept of law means that in hard cases judges must legislate retroactively in deciding a case according to their own discretion. Unlike Hart, Dworkin believed that judges in hard cases do not exercise judicial discretion to ‘create’ or ‘make’ new law.
Instead, he argued that the law is essentially an argumentative practice. In Dworkin’s view, judicial decision-making requires a certain interpretive attitude on the part of judges. In order to understand what the law requires judges are required to engage in the practice of constructive interpretation. This method of interpretation requires ‘imposing purpose on an object or practice in order to make of it the best possible example of the form or genre to which it is taken to belong.’ Thus, as an interpretive concept, the identification of law depends on what the interpreter (the judge) thinks is the best possible interpretation of the law in any particular situation. The answer to the question on skateboards in parks depends on what the judge thinks is the purpose of the rule. If the purpose is pedestrian safety then the judge may include skateboards as prohibited because of the speed at which they travel. Alternatively, skateboards may be thought safe enough and they would fall outside the rule. For Dworkin, adjudication depends on judges making these moral enquiries. As such, morality is a part of the identification of the law.
However, this reliance on the merits or purpose in the identification of the law raises problems. It means that what the law is cannot be divorced from the question of what the law ought to be in the singular case. From the perspective of international law this creates many problems. Mixing morals into the identification of law might afford powerful States the opportunity of legalising their own policy objectives. This would make modern international law indistinguishable from an apology for the practice of powerful States.
Dworkinian theory recognises the problem. As surety against the blurring of law and morality, Dworkin argues that it is not open to the interpreter to define ‘best’ in any possible way that they like. Instead, ‘the history or shape of a practice or object constrains the available interpretations of it…’. In this way, Dworkin argues that interpretivism in law is rooted in empiricism. The judge in Dworkin’s theory cannot appeal to any interpretation of the law that they might desire. This is the essence of the theory of law as integrity. Dworkin argued that judges must find a ‘third way’. They must i) ‘fit’ the law into previous legal practice and ii) ‘justify’ the law according to the best possible example of law that it can be. Thus, law as integrity requires that judges appeal to the underlying political and moral principles of the community to discover what the law is. However, they must also fit their interpretation of the law with the rules and practices which make up the legal order. This is the meaning of integrity. They must seek to explain their interpretation according to the purpose of the whole system of law.
Nevertheless, adherence to this view means that the political principles of communities are part of the legal system. Further, they are a hierarchically superior part of the legal system. The totality of the system is based on these moral and political principles. Law as integrity requires that the judge always assumes that the law makes moral sense. Thus, justification requires judges to identify the political or moral principles which overarch the history of the legal practice. Then they must select an interpretation of the law which shows that practice in its best light. The theory is designed to present the legal order as a coherent scheme of justice. The moral political principles that underpins the political community and the law of that community must be in harmony. Thus, Dworkinian theory argues that the complexity in law is overcome through interpretivism. An aspect of that is resolving the indeterminacy of language. Another aspect of that is resolving the fragmentation of law.