Pragmatic judges do not consider themselves bound by the requirements of the rule of law. They are ready to reject them at any time if, in their opinion, the interests of the case require it. Norms are important only when they can be used to substantiate one’s position. From Dworkin’s perspective, pragmatism does not reflect the real picture of the law enforcement because judges consider themselves bound by the rules of law and do not simply believe that there are good reasons to follow their requirements in most cases. Moreover, one cannot be a pragmatist and, at the same time, talk about the rights of the parties. After all, if the judge can make any decision that he considers best, it is impossible to talk about the right of one or another of the parties to claim this decision.
In contrast to the pragmatists, in whose view the law consists only of rules, Dworkin insists that in addition to them, legal systems contain principles – moral judgments, the validity of which is supported by laws, court rulings, the Constitution. Dworkin substantiates the need for judges to adhere to and apply legal principles that have developed historically and are already “embedded” in the legal system. The leading role in this process was played by the decisions of the Supreme Court of the United States, whose members throughout its history have actually been engaged in the moral reading of the Constitution when considering specific complex cases.
The judge must develop such a theory of law, which would best correspond to the totality of all existing norms, and would also reflect this totality in the best light for her. A natural question arises as to what is so attractive, from a moral point of view, the theory of law as integrity. Indeed, its task includes only the consistent identification of the hidden, implicit moral and political attitudes that lie at its foundation. Dworkin believes that integrity is already among our values, even if it was not previously known to us under that name. To illustrate this point, the following thought experiment can be cited.
The judge must develop such a theory of law, which would best correspond to the totality of all existing norms. A natural question arises as to what is so attractive, from a moral point of view, the theory of law as integrity. Indeed, its task includes only the consistent identification of the hidden, implicit moral and political attitudes that lie at its foundation. Dworkin believes that integrity is already among our values, even if it was not previously known to us under that name. To illustrate this point, the following thought experiment can be cited.
Suppose that the subject of our dispute is the death penalty. There will be both those who consider it acceptable in certain circumstances and those who will object to them in every possible way. Suppose also that the opinions are equally divided: fifty percent in favor, fifty percent against. Now, suppose that a new law is being adopted, in which, instead of an unambiguous one, we find a mixed answer. Criminals who were born in an odd year may be subject to capital punishment, but those born in an even year cannot.
Dworkin’s position is quite simple: it is intuitively clear to us that such a law would be wrong. The paradox is that such a law more fully represents the diversity of interests existing in society than the alternatives offered by supporters or opponents of the death penalty. And as a consequence, it embodies a «fairer» distribution of political power in society. Injustice, in this case, stems from the lack of a single moral basis for this law, or what Dworkin calls integrity. To justify one part of it, one will be forced to invoke principles that they should deny when justifying another one. Given the rationale above, it seems that “as-if” legal rights promoted by pragmatism cannot be considered sufficient within the scope given.