13/03/2019

Nicolás Orduz, 201730054

Theory of Law
Professor: Isabel C. Jaramillo

Why should law justify coercion? An analysis of integrity and legitimacy

Ronald Dworkin was a legal writer who worked on the historical theory and argued
in favor of integrity as a principle of law. We have already studied Dworkin in this course,
and his defense on integrity, but now the analysis spins around adjudication rather than
legislation. Taking into consideration that I wrote a critical review for the first part of his
theory, I believe that is my duty to elaborate and construct over my initial interpretation of
Dworkin’s work to provide an analysis that both fits with my first critical review and is the
best to continue building around the topic of integrity. First I’m going to give a short
contextualization of Dworkin’s theory about jurisprudence being like a novel seriatim, then
I’m going to talk about the importance of making the best decisions to fit with the existing
jurisprudence, and finally I’m going to argue that having judges with different backgrounds
is the best way to ensure that jurisprudence stays relevant. All of this in order to show that
the best legal system should be dynamic while respecting the general beliefs of the
community where it is being enforced.
First of all, I want to bring to the table the fact that Dworkin is aware that not all legal
systems have the same stance in what is morally correct, as he showed in the previous part
of his text. Taking this into consideration, the ways in which legal systems around the world
develop may vary significantly. However, all systems need to have a set of judges in order
to decide about and interpret the law that was created for a certain community or nation.
Wether or not this decisions are relevant to the system as a whole is a discussion for another
day, the point being that anywhere there are judges there is going to be interpretation,
regardless of the differences between each community’s beliefs. Having addressed that, we
must consider the basics of how Dworkin thinks judges should decide.
Dworkin believes that judges are as much critics as they are writers, in that sense,
they must not only read and ponder about law and decisions made by previous Judes, but
they have to add something new to the chain of decisions when they make a ruling. He
compares the work that judges do to the task of a writer who adds a new chapter to a novel
that has already began. This type of novel in which an author builds upon the work of another
is called a novel seriatim. The interesting part is that judges don’t need to write an ending to
 13/03/2019
Nicolás Orduz, 201730054
Theory of Law
Professor: Isabel C. Jaramillo

said novel as they must leave room for others to decide in the future, they must however
provide a satisfactory resolution to the particular case. The additions that judges make to this
seriatim need to follow the narrative that was previously set, and the grade of divergence
between the pervious rulings and the new one depends of how much has already been written.
Dworkin argues this by showing the example of A Christmas Carol, he states that its not the
same for a judge to decide about Scrooge’s fate in the beginning of the story than at the
middle or the end.
With all of this in mind, judges need to find the best way to fit their decision in the
established narrative. First he needs to decide if the case at hand actually fits in that particular
jurisprudential line, this is achieved by studying the structural aspects of both the case and
the precedent, and if a majority of them match, then the case may fit on the narrative. If the
majority of the elements are incompatible, he must abandon that “novel” and begin a new
one. Once it is established that the case fits, the judge chooses the best way to build upon
what has already been written. A single judge may have different interpretations of the same
thing, and it is his duty to decide how he wants to continue the story. The judge is both
constrained by the precedent and free to decide on his own, this is why he must choose
between changing the course of the jurisprudential line or supporting what has already being
said. I believe that this depends on the context of the time and place where the case it is taking
place, as the mentality of a community is variable and depends on a lot of sociopolitical
factors that a judge must consider.
Those diverse conditions in which law is taking place are the reason why its important
for judges to have different backgrounds from one another. I tend to believe that law is like
a tree, and that different interpretations and decisions taken by the judges are like the
branches. If all the branches grow in the same direction the tree could fall or get so
destabilized that it could no longer grow. What happens when judges don’t differentiate their
decisions is that the growth of a certain jurisprudential branch only goes sideways until it
gets to a point of stagnation and needs to be cut off. Outside of the metaphor, this means that
the precedent set about a certain topic becomes useless because it no longer follow the
growth, change and evolution of the society that is being regulated. In that sense, one of the
best ways to prevent this is to have judges with different backgrounds, formation and
 13/03/2019
Nicolás Orduz, 201730054
Theory of Law
Professor: Isabel C. Jaramillo

ideologies, that are capable of building on what was already said and maintaining the
relevance of a certain topic. Communities are dynamic and judges need to read not only the
work of other judges but they also need to be capable of reading the environment in which it
is taking place.
This may lead some people to believe that I’m considering that integrity should be
abandoned or that the changing decisions of the judges could go against juridical security.
Actually what I’m saying is that the rulings that compose a jurisprudential line can be vastly
different while maintaining the same general principles and moral values. This is for example
the case of the responsibility of an employer for the damage that is caused by an employee
in civil law. The first rulings said that employers only needed to pay when the employee
wasn’t chosen carefully or surveilled properly, the most recent ones say that they need to pay
for the actions of any of the employees regardless of their position within the company. This
is to say that although the decisions in both cases differ significantly, the moral principle of
juridical security and justice are maintained throughout, thus keeping safe the principle of
integrity.
In conclusion, for a legal system to work properly the decisions made by a judge need
to build on previous rulings while maintaining a degree of independence, that would allow
the new judge to adapt the elements of the precedent into a concept that works in a
contemporary context. This way the effects of adjudication can be relevant in most legal
system regardless of the influence that juridical precedent has in a certain community or
nation.