Indecisive Reasons for Decision
This paper provides a radical, new critique of Ronald Dworkin’s theory of law and politics. Dworkin's theory of law as integrity purports to show how judges can avoid indecision when deciding cases and select one right answer to every legal problem. The integrity thesis must avoid two sources of indecision. Competing justifications could be equally good or incommensurably good: in either case, there will be multiple answers to the legal problem, so no unique right answer. Dworkin’s solution is to say that, in either case, the judge can just choose. Having chosen, the judge is supposed to stand by his or her political convictions in the face of competing, plural legal, moral, and political justifications. Choosing the right answer is thus a method of personal, political and moral commitment.
The fact that judges can choose among plural legal justifications generates only a final answer, not a right answer. That a judge can become committed to a particular political and moral point of view, and convinced that her choice is the only available answer, speaks not to integrity, but self-deception or narrowness of mind. The central contention in this article is that moral and political dilemmas are real and pervasive features of the world that cannot be wished away by personal convictions. Faced with the uncomfortable fact that there may be no good reason for favoring one party over another, the solution is not political conviction, but open-minded humility. From that perspective, the claim that there is one right answer, and the theory of law-as-integrity that goes along with it, promotes not a judicial virtue, but a judicial vice.
Eric J. Miller. 2012. "Indecisive Reasons for Decision" ExpressO
Available at: http://works.bepress.com/eric_miller/5