by David Fagelson. Albany, NY: State University of New York Press, 2006. 216pp. Hardcover. $60.00. ISBN: 9780791467633. Paperback. $21.95. ISBN: 9780791467640.
Reviewed by Michael Paris, Department of Political Science, Economics, and Philosophy, The College of Staten Island (CUNY). Email: michaelpari[at]gmail.com.
In JUSTICE AS INTEGRITY, David Fagelson takes up foundational questions of legal theory and political morality: What is law? What is the source of legal authority? What are rights? What fundamental rights do we have in the United States, and why? Fagelson’s answers are idiosyncratic and wonderfully challenging.
In what can be fairly described as an extended conversation with Ronald Dworkin, Fagelson seeks “to offer an alternative way to think about the moral content of legal interpretation and the role of morality in understanding our legal rights,” and to “locate and describe the moral foundations of law in America” (p.2). Fagelson, a self-described moral realist, admires Dworkin. He accepts Dworkin’s view of the task of legal theory as well as his conception of “law as integrity.” He shares what he calls Dworkin’s “dream” that judges in the United States never create law, but always “discover it, if not in the written law, then in society’s latent principles and values that help form the fundamental law” (p.36) (Actually, Dworkin calls the distinction between finding and inventing law a “false dichotomy” (1986, 225-228), but perhaps Fagelson’s characterization is apt nevertheless). Dworkin sets the right agenda by tying law and rights to more basic and abstract principles of justice and political morality (pp.50, 87). Where Dworkin goes wrong, Fagelson argues, is in his refusal to apply his notion of “constructive interpretation” to “justice” as well as to “law”—hence Fagelson’s title, “Justice As Integrity.”
In LAW’S EMPIRE (1986), Dworkin argued that law was best viewed as a social practice with a meaning or point. Understanding any social practice requires an interpretive attitude, which for Dworkin necessarily requires some perspective internal to the practice. He began with the claim that most competing conceptions of law could accept the proposition that the meaning or point of law is to justify government coercion in accordance with past political decisions about when such force is justified (p.38, quoting Dworkin 1986, 93). Interpreters should make sense of law by providing abstract accounts that both “fit” (describe or cover) past legal practices and decisions, and “justify” them through the derivation (formulation?) of moral principles that make the best, most attractive sense of those practices and decisions. Thus, moral principles are part of our law. While these principles will be controversial, Dworkin claims that the fit requirement means that the justifying principles cannot be just anything one wants. The political morality that is part of our law on [*556] Dworkin’s account is what Fagelson calls “institutional morality”—moral principles tied to or somehow sifted out of the past practices and values of state officials. Fagelson’s problem with Dworkin is that, in Dworkin’s view, moral principles have no necessary legal status, unless they just happen to have been embraced by officials in the past.
Fagelson notes that Dworkin sees “justice” as every bit as an interpretive concept as is “law.” However, Dworkin rejects Fagelson’s notion that principles of justice could be found in or sifted out of society, specified, and given status as law. For Dworkin, conceptions of justice are even more open to contest and variation than are conceptions of law. Justice has a “quasi-transcendental status;” it must be “our critic and not our mirror” (pp.59, 81).
For Fagelson, by contrast, moral truth is real and open to us. If we find it, it will yield answers to moral questions that are properly regarded as legally binding. Fagelson states that his view is not properly classed as a natural law argument because for him the source of legal authority is not, say, God or Reason, but rather the constitutive “intersubjective understandings in the community” (p.2). These intersubjective understandings are not a matter of choosing selves reaching consensus, or of public reason. Rather, they are constitutive in much the same way a grammar constitutes meaning in a language. They belong to no individual, but represent the “deeper meanings” immanent in “social forms” that “help constitute a person’s understanding of the world, and hence make shared conventions possible” (pp.6-7). As it is for “law as integrity,” so too it must be for “justice as integrity.”
Fagelson’s boldest and most challenging move is to place some form of tolerance – some basic way of perceiving, putting up with, and accommodating differences – at the center of the moral foundation of any legal system, properly so called (on this view, Nazi and Soviet systems were not legal systems). Relying on Dworkin, Fagelson regards law and the rule of law as the morally justified imposition of force. He wants to convince us that there is a necessary connection between particular forms of tolerance in a given community and this justified imposition of force (that is, law, properly so called). In his view, tolerance is a constitutive element of reason itself, and reason is required for the apprehension and application of rules. At the most abstract level, different forms of tolerance provide meaning that guides understandings of rules because the form of tolerance tells us which differences are relevant and which irrelevant to a rule’s (or to “the law’s) point or purpose. Different political moralities and social practices yield different basic kinds of tolerance, but whatever these are, they must be interpreted and applied if law is to have its foundation in the constitutive morality of a community and thereby achieve the status of justified coercion.
When Fagelson applies this abstract model to constitutional jurisprudence in the United States, he finds that our deeper constitutive meanings yield a “liberal perfectionist morality” which makes the sovereign virtue of law not Dworkinian equality, but rather liberal [*557] tolerance and individual autonomy. Liberal tolerance is sovereign, Fagelson says, because our community regards “personal autonomy as the key element of human excellence” (p.2). It follows that the liberal state cannot be neutral between competing conceptions of the good life, and that it should not try to be. The state cannot be indifferent to the question of which institutional arrangements foster or encourage human excellence. For example, government can and should “take a more aggressive position regarding [its] power to inculcate the value of tolerance through public education as part of the requirement of citizenship, even while protecting the right of many groups to be intolerant” (pp.8-9). As for judges, they can and should “interpret justice with integrity the same way they approach legal integrity [according to Dworkin, at least], although justice includes sources beyond the law itself”—it includes not only precedents and statutes, but also “wider social meanings that animate what [judges] should be doing with legal integrity in the first place” (p.7).
Liberal tolerance did not always reign, of course, but the intolerance of many ways of life in American law has in fact “generally receded as beleaguered groups were seen to possess an equal capacity for reasoned discourse,” and as more forms of behavior (e.g. those having to do with sexually explicit materials or sexual practices) have come to be associated with autonomous choice, as opposed to animal instincts or mental illness. These developments, moreover, are internal to law, morality and reason. Law inherently has this sort of “moral momentum.” It is therefore not surprising that, over time, law in America has converged with true morality (pp.4-5, 114-15).
Finally, Fagelson insists several times that he does not want us to read this book as a normative proposal, but as a valid interpretation of how “our community actually justifies law” (p.7). His view provides the lens through which we can apprehend what is really there—that is, “the outlines of the norms American judges use to justify force” (p.117).
A quick summary of a book always risks caricature, but this is especially so when its argument is a philosophical one proceeding through a series of close conceptual distinctions and maneuvers. To this point, I have provided only a barebones overview of Fagelson’s project and claims.
In his first three substantive chapters (Chapters 2-4), Fagelson explicates his zones of agreement and disagreement with Dworkin. In Chapter 2, “the Wages of Skepticism,” he reviews and finds wanting “three ideal types of adjudication”: “concrete originalism” (Bork and Scalia), “critical moralism” (Critical Legal Studies), and “interpretive rights theorists” (Dworkin). Although Dworkin protests loudly that he is a moral realist, Fagelson argues that he is not really that. Indeed, Dworkin’s view is really a subtle form of moral skepticism, for his liberal political morality is so “thin” as to be “devoid of moral content” (p.60). In addition, Dworkin’s master principle of equality is defective, mainly because it is not grounded in any substantive vision [*558] of human excellence, but for many other reasons as well. In Chapter 3, “Integrity and Obligation,” Fagelson seeks to leverage an all out attack on Dworkin’s political morality by going back to Dworkin’s essays on civil disobedience and the obligation to obey the law. Fagelson hits Dworkin at a weak point here, and he hits him well. His larger conclusion is more controversial: If Dworkin has no coherent theory about the force of law (the moral obligation to obey), it must be because he no valid theory about the grounds of law (the source of authority, or why law is law). Dworkin had maintained that the grounds and force of law are somewhat different aspects of it that can call for different kinds of inquiries and considerations (1986, 108-113). Fagelson disagrees. In Chapter 4, “Justice As Integrity,” Fagelson offers a philosophical account of his notion of “social forms” and a defense of sorts for moral realism. He also continues his attack on Dworkin’s limitation of the sources of legal authority to “institutional morality,” as opposed to “justice” writ large. This is essentially an argument about metaphysics and its connection to morality and law.
In his last two chapters (Chapters 5 and 6), Fagelson turns to the affirmative claims he wants to make coming out of the other side of his critique of Dworkin. In Chapter 6, which perhaps should have come before Chapter 5, he offers a general argument for his view of the mutually constitutive nature of tolerance, reason, and law. In Chapter 5, “Liberal Perfectionism and Tolerance in American Law,” Fagelson argues that a perfectionist liberal view makes the most sense of American constitutional law, and that “judges use that abstract political morality as the interpretive source of law” (p.113). This case is made through readings of a handful of Supreme Court cases in the areas of freedom of speech and privacy. Fagelson wants to convince us that this commitment to perfectionist liberalism can reconcile seemingly competing or contradictory results in the cases on the continuum from moral paternalism to individual autonomy. In their trajectories, these cases also show us that American law has made great moral progress toward the protection of liberal tolerance.
Fagelson has given students of philosophy and jurisprudence a wealth of arguments and insight to consider. Anyone interested in jurisprudence, and especially in Dworkin’s body of work, can benefit from engagement with JUSTICE AS INTEGRITY. Nevertheless, and perhaps inevitably, given Fagelson’s commitments, problems and questions abound.
One set of issue involves whether Fagelson has Dworkin right. For example, is Fagelson correct when he says that Dworkin’s liberal political morality is so thin as to be “devoid of substance,” and that Dworkin has no grounding for his notion of rights apart from contingent social facts about institutional histories and moralities? Fagelson twice invokes H.L.A. Hart’s 1979 observation that Dworkin’s equality principle “would not be violated by a dictator that abrogated everyone’s freedom equally” (pp.51, 73, Fagelson paraphrasing Hart). I wondered whether [*559] Fagelson was taking Dworkin’s language seriously enough here with respect to the distinction Dworkin makes between being treated “as an equal” and being treated “equally.” Whether his moral sense of rights is properly grounded or not, what he means by “as equals” is reasonably clear, and it does not include the denial (in any regime, I think) of basic liberties and rights fundamental to individual dignity and moral autonomy.
Fagelson is troubled by Dworkin’s moral individualism and his claim that the state can be neutral between competing conceptions of the good. But even if we grant Fagelson’s many points against the possibility of such neutrality in many instances, it does not necessarily follow that the moral aspiration is meaningless or ill-conceived. If we take out the claim to the realization of state neutrality, what we have left is an aspiration that counsels a reluctance to judge, if at all possible. The state’s hand should tremble before it obliterates social worlds and institutions promoting illiberal identities and commitments. Fagelson acknowledges that “perfectionism” makes many people uneasy. Still, I must say that his free and approving use of words like “inculcate” and even “indoctrinate” made me uneasy (pp.8, 118-119).
Another line of criticism might invoke Fagelson to challenge Fagelson, given the parallel structure he sets up between Dworkin’s “law as integrity” and his own “justice as integrity.” For example, against “law as integrity,” Fagelson rightly claims that we cannot avoid the suspicion that, in Dworkin’s framework, “justification” will be likely to swallow and determine “fit” (pp.46-48). The interpreter’s pre-existing moral and political commitments will structure perceptions about past practices, and the institutional record will not do much constraining. From here, Fagelson’s conclusion is that “justice” is involved anyway, so we might as well go right ahead and embrace it by applying the interpretive attitude to it. But one could just as easily conclude that if justification tends to determine fit for Dworkin’s law as integrity, then this will be even more of a problem for Fagelson’s justice as integrity. Fagelson’s chapter on legal doctrine might be taken to confirm the suspicion. I can not make out a case here, but upon reading this chapter – the only chapter in the book that descends from philosophy and jurisprudence to legal doctrines – I had the strong sense that Fagelson found in American law pretty much what he set out to find. He cautions that his discussions of some Supreme Court opinions are simply “illustrative” of what an application of his framework would look like (p.114). However, these discussions cannot possibly support his more sweeping claim that he has found the moral foundations of American law, never mind his rosy picture of steady moral progress toward liberal tolerance.
Overall, I was left wanting more discussion and argument from Fagelson about the nexus between what struck me as two kinds of arguments. One argument was mainly a highly abstract conceptual one about the necessary connections among tolerance, reason, and law, as Fagelson understands these. That argument can stand or fall on its [*560] own, without respect to its application to any given society. The second argument should be an empirical one (the equivalent of “fit”?), at least in some sense, about the content and character of an alleged, distinctive form of tolerance in a given society, how we might know it when we see it, and how, exactly, it is thought to be connected to that society’s legal practices justifying the use of force. Aside from the abstract conceptual argument about tolerance, reason, and law, the only thing Fagelson offers as evidence for his claims about tolerance in American society and American law is his interpretive reading of a few Supreme Court opinions.
Fagelson will not convince many people working in political science and sociolegal studies – that is, people working in the shadow of legal realist approaches to law and politics – and he knows this (p.9). One point from the “outside” is worth mentioning here, however. It is one that has been made several times against Dworkin, and it follows that if it is valid it applies against Fagelson as well. The point is that realistic understandings of the relevant phenomena are ruled out as potentially viable or true, and ruled out in advance, simply in virtue of the way the theorists defines the objectives and tasks of moral and legal theory. As Brian Z. Tamanaha has noted, Dworkin’s project is from the outset a normative one that is best called “positive rationalization” (1997, 183). Moral evaluation and argument, by contrast, might benefit greatly from paying attention to knowledge produced through careful empirical investigations, whether these embrace social scientific positivism or interpretivism, designed to uncover say, intersubjective knowledge structures in a given community, or the institutional settings for and phenomenology of the practice of judging, or the determinants of judicial decision-making. For example, in his critiques of the jurisprudential writings of Bork and Scalia, respectively, Fagelson seems genuinely baffled by their theoretical incoherence. But most political scientists reading Fagelson’s account will immediately see that these jurisprudential theories do make perfect sense, but only if we see them as designed to reach particular political results. In any event, nothing from social science disciplines about law and culture in society or courts as institutions ever intrudes upon Fagelson’s argument.
Finally, there is “is” and there is “ought.” I found myself bristling when I thought that Fagelson should have been saying “ought” when he was in fact saying “is” (Cf: Shklar 1964). When he presented his claims as claims about “how judges actually decided cases,” I could not bring myself to take him seriously. Perhaps the felt need to say “is” is a necessary entailment of Fagelson’s deep commitment to moral realism. Fagelson is no fool. He states repeatedly that we live in a morally pluralistic society in which people disagree about fundamental matters of justice and morality. Justice is interpretive, and its pursuit requires deep, pervasive, and ongoing interpretive disputes. What this position amounts to for those of us who are not moral realists (the agnostics and cynics among us) is the claim that something very important turns on whether we [*561] speak the language of moral realism—on whether we bow down and say that moral truths exist, that they “are as real as anything is,” as Fagelson puts it. But what that “something” is remains elusive, at least to me. Whether one embraces Fagelson’s moral realism or not, his book is both admirable and edifying.
Dworkin, Ronald. 1986. LAW’S EMPIRE. Cambridge, MA: The Belknap Press of Harvard University Press.
Shklar, Judith N. 1964. LEGALISM: LAW, MORALS, AND POLITICAL TRIALS. Cambridge, MA: Harvard University Press.
Tamanaha, Brian Z. 1997. REALISTIC SOCIO-LEGAL THEORY: PRAGMATISM AND A SOCIAL THEORY OF LAW. Oxford, UK: Oxford University Press.
© Copyright 2007 by the author, Michael Paris.