Why No Judge Should Be a Dworkinian Coherentist

Introduction Preliminaries Since Ronald Dworkin wrote Hard Cases,' coherence has been a pivotal-perhaps the pivotal-explanatory and justificatory concept in theories of law and adjudication.2 Crudely put, Dworkin's view is that a purported proposition of law is valid if it follows from the most coherent set of principles that explains and justifies the settled, black-letter law.3 Although coherentist methods permeate modern theories of law4 and justice,5 and although coherence is the crucial explanatory and justificatory concept in many theories, including Dworkin's6 and Weinrib's,? theorists of law and justice have been curiously vague about what coherence is, and about when a legal system, a legal theory, or a set of norms is coherent. The regrettable result is that claims regarding coherence-especially regarding its normative virtues-cannot be adequately assessed: our understanding of coherence is too meager for us even to know where to begin. In a larger project of which this Article constitutes a part,8 I intend to remedy this unfortunate state of affairs by developing an analytic framework within which to categorize differing conceptions of coherence. I then plan to demonstrate the framework's explanatory power by analyzing claims about coherence made by John Rawls, Lon Fuller, Ernest Weinrib, and Ronald Dworkin. In this Article, I restrict myself to Dworkin. I do so because he has developed the most prominent and influential coherence theory of law and adjudication. My overall aim is to canvass some normative virtues and vices of his theory, which he initially labeled "the rights thesis"9 and now denominates "law as integrity."'o While noting one serious normative flaw in Dworkin's coherentist theory-it sometimes applies law retroactively, even when correctly followed-I argue that law gradually will improve morally over time if Dworkin's theory is correctly employed by judges. Moreover, contrary to the views of Dworkin and his critics, I argue that his view is less conservative than the conventional wisdom asserts. According to that wisdom, the best theory of the settled lawwhich is, for Dworkin, the law-must fit the overwhelming bulk of the settled law." For this reason, it is claimed that Dworkinian methodology projects the ideology embedded in the settled law into the future, and is thus inherently conservative."2 To the contrary, I urge that the requirement of fit with the settled law in Dworkinian coherentist theory is much lower than is commonly assumed. This allows the moral aspects of Dworkin's theory to dominate the ideology implicit in the settled law. Coherence theories-qua coherence theories-may not only evolve toward critical morality; they are also potentially subject to radical transformations toward justice. Dworkin's theory has the flexibility-under certain circumstances, described in Part IV-to be morally superior in terms of outcomes to what both Dworkin and his critics have previously thought. Still, there are other extant jurisprudential theories. Depending upon the circumstances, judges who follow either Hartian positivism (or some form of strict construction) or natural law theory will produce morally better outcomes overall than those who follow Dworkin's mixed methodology which partakes of both positivist description and natural law normativity. Under no circumstances is Dworkinian coherentism the preferable methodology evaluated in terms of producing the morally best outcomes. The measure of morally best outcomes will consider the percentage of morally correct outcomes, the distribution of morally incorrect decisions in terms of their "closeness to" or distance from morally correct decisions, the distribution of decisions as a function of their importance in protecting significant rights and interests, the number of interactions that each decision will regulate, and the like. Although I do not maintain that the moral correctness of outcomes is the only criterion for assessing jurisprudential methodologies and legal theories, nevertheless, I do believe that it is the most important criterion. …