[*PG825]OBJECTIVE DECISION MAKING IN LONERGAN AND DWORKIN
Abstract: Critical Legal Scholars argue that judges are unable to make truly objective decisions. This view gained strength in 2000 in Bush v. Gore, when the U.S. Supreme Court decided the presidential election largely along partisan lines. This Note, however, argues that Critical Legal Scholars fail to provide positive, constructive answers to the problems of objective decision making. Alternatively, the Note examines these problems through the philosophies of Bernard Lonergan and Ronald Dworkin. The Note explains both philosophers’ approaches to objective decision making, then examines those approaches in the context of Bush v. Gore. The Note concludes that Lonergan’s philosophy, though not designed specifically for legal thinking, provides the stronger means for understanding and achieving objective judicial decision making.
It seems like every time a judge decides an important well-publicized case, those with access to the media who disagree immediately criticize the decision. A common approach for these critics is to show how the judge’s decision-making process was not objective; that is, that the decision was influenced by the judge’s personal characteristics, such as political persuasion, race, ideology, gender, or economic background.1 This critique is often accomplished by demonstrating that the current decision is at odds with one of the judge’s previous decisions or publicly stated principles, other times by simply stating that the decision produces some sort of favorable effect for whatever class of persons the judge is assumed to be favoring.2 Despite the potential asymmetry in this type of critique of judge’s decisions,3 their [*PG826]effect is to strike at the heart of the United States’ system of government: the independent, and formally neutral, judiciary.4
This issue was thrown into stark relief in the United States’ most recent presidential election. The election was extremely close, and the entire country watched with fascination as the two main candidates, George W. Bush and Albert Gore, Jr. contested every aspect of the race, before and after Election Tuesday, in the media, the Florida vote counting offices and the courts.5 When the United States Supreme Court finally decided between the two candidates,6 half the country was delighted and half disgusted.7 But Americans were also nervous: What exactly did it mean that the Supreme Court, one of the most respected institutions in the country, had apparently voted down party lines?8 At the time, pundits proclaimed loudly that such a blatant abuse of the Court’s power had dealt a deathblow to the Court’s prestige.9
This election presents an almost perfect scenario in which to consider whether objective decision making is possible, and if so, how an individual should go about making such decisions. The judges who, in essence, voted for George W. Bush, were criticized for allowing their political persuasion to sway their decision.10 In this case, one specific aspect of the judges’ personalities, their political persuasion, was blamed for the decision, and this characteristic happens to be one of the easiest for critics to highlight because of the United States’ two party system.11
[*PG827] Can judges make objective decisions, free from personal bias? Can anyone, ever, make any decision free from all bias? After all, a judge is simply a person, and when they judge, they simply make a decision, similar in form, if not in content, to any well thought out decision made by an intelligent person.12 One major trend in contemporary philosophy answers this question with a vociferous “No!”13 This negative view of the possibility of objective decisions is carried into the legal arena by the Critical Legal Scholars,14 who also answer no, and then apply that answer to the practice of law, attempting to show that in fact judges do not make unbiased decisions.15
The Critical Legal Scholars’ approach, however, is unsatisfying. A careful reading of their work turns up many more critiques and rants, than constructive suggestions.16 At the end of the day, one may be left with only the sickening feeling that all of society and law is a construct of white male patriarchy, designed to maintain the status quo, and that there is nothing one can do to change that. Although ultimately unsatisfying, the Critical Legal Scholars are effective when demonstrating the weaknesses of many of the traditional answers to the question of whether a person or a judge can make an unbiased, objective decision.17 But still, the reader of the Critical Legal Scholars’ writings is not likely to come away with any sense of what a real judge should do tomorrow morning when they go to work and are required to decide their next case.18
[*PG828] A person seeking positive and constructive answers to the problems of objectivity must, accordingly, turn to another philosophy. This alternate must address the weaknesses of traditional philosophy which have been highlighted by the Critical Legal Scholars.19 It must account for the fact that many people, and many judges, do not make unbiased decisions. And it must provide hope for a successful approach to objective, unbiased decision making. If it cannot do these things, then the seeker is no better off than if he or she had converted to nihilism, as some Critical Legal Scholars have proposed.20 The philosophy of Bernard Lonergan, however, provides just such a constructive approach.
Bernard Lonergan lived from 1904–1984. His major works included Method in Theology and the monumental Insight.21 Despite his prominence in general philosophical circles, Lonergan’s work has been underused in the more specific area of legal philosophy.22 This may be because Lonergan himself never wrote specifically about the legal arena, and in fact used the law as an example only rarely.23 Lonergan’s answer to the question of how people should make objective decisions is, however, a rich, well-rounded approach, well suited to decision making in the legal arena.24 This Note will introduce Lonergan into the legal context by comparing his approach to objectivity with that of Ronald Dworkin.
Ronald Dworkin is a thinker and writer, well known in the area of legal philosophy, who has constructed a positive answer to the question of objectivity.25 He provides his most complete explanation of his [*PG829]thinking on this question in Law’s Empire.26 Dworkin approaches the question of objective decision making specifically within the legal context, but ultimately tackles many of the same questions as both the Critical Legal Scholars and Lonergan.27 For this reason, his work helps to highlight questions in the legal arena which must be answered by Lonergan’s philosophy if that philosophy is to succeed, and to provide a response to the current dominant critique of objectivity in the law, the Critical Legal Scholars. This Note argues that Lonergan’s explanation of objective decision making provides a better model than does Dworkin’s explanation, both as an answer to the Critical Legal Scholars and in the real world of contentious cases.
In working toward the comparison of the two thinkers, Part I examines Lonergan’s model of objectivity to gain familiarity with his thinking.28 This necessarily includes an extensive discussion of Lonergan’s theories of cognitional structure and error, and how these relate to society.29 Part II provides a similar examination of Dworkin’s theory of objectivity.30 This entails a discussion of Dworkin’s theory of legal interpretation, the principle he terms integrity, and the place of each in the adjudication of legal disputes.31 Part III compares Lonergan’s and Dworkin’s works in the context of Bush v. Gore, in order to apply Lonergan’s answers to the problem of objective decision making to a practical legal context.32
Part I will trace Lonergan’s arguments, leading up to his explanation of objective decision making, drawing primarily on his seminal work, Insight.33 In order to determine if it is ever possible to make an objective decision, Lonergan first asked, what am I doing when I make a decision?34 The answer to this question is a theory of knowing, which forms the basis of Lonergan’s entire philosophy, and underlies [*PG830]his answer to the problem of objective decision making.35 Even after knowing the alternatives, an individual must still decide between them, so Lonergan further explored what choosing adds to knowing.36 Building on this structure, he explained what error is, how it can and does distort the process of decision making in practice, and how error can be corrected and avoided.37 Finally, he answered the question directly, and delineated a method for making objective judgments.38
Lonergan understood human knowing as an activity, intimately involving the knower, which occurs through a dynamic structure with three interacting levels.39 It is not simply “taking a look” at things that exist outside the person, and then reporting those things, as many of the major strands of Western philosophy had supposed.40 This cognitional structure is natural and inherent in everyone, but rarely recognized formally.41
The first level of this structure is experience.42 Experience arises in a number of forms.43 The most commonly recognized forms are the five senses, but beyond these Lonergan identified many others including feeling, remembering, and imagining.44 All provide raw material, data, to the knower to be understood.45 Without some experi[*PG831]ence to draw upon, there is nothing to be understood.46 Thus experience is prior to insight.47
Experience provides the data that allows for the possibility of an insight, the second level in Lonergan’s theory of knowing.48 An insight, as the term is used by Lonergan, is the act of catching on, the moment of understanding information which was previously available but unintelligible.49 One key element of insights is that they cannot be forced, nor can one person have the insight on behalf of another.50 They can, however, be encouraged in another person with apt questions and diagrams.51 Lonergan reminded his audience that asking a question is the key to experiencing an insight; if individuals refuse to ask questions they will be unable to comprehend answers.52 He aptly described how people experience a sense of wonder or an innate curiosity, a pre-verbal and even pre-conceptual desire to know, which leads them to ask questions.53 It is these questions which drive investigation, and investigation in turn provides experiences and culminates in the act of insight.54 In fact, this same sense of wonder provides the foundation for objective judgments.55
Judgment is the third level, or activity, of knowing; judgment follows and acts upon insights.56 The innate curiosity described above is not content with just any insight; it drives the thinker to find the correct insight.57 So judgment consists of reflecting on a prior insight and asking oneself, is it correct?58 One aspect of this judgment is deciding whether one has enough information upon which to base the judgment.59 If not, the judgment must be delayed until further pertinent questions have been identified, understood, and judged.60 The [*PG832]final answer must be yes, no, or I don’t know, meaning further questions are necessary, and yes and no may be qualified as more or less probable.61 Judgments are communal and public in the sense that any number of people can affirm the judgment for themselves.62 Where several individuals do make the same judgment, the independent thinkers obviously did not share the exact experience that gave rise to the understanding that is affirmed in the judgment, rather they too affirm the truth of the insight behind the judgment.63
These three parts of the cognitional structure—experiencing, understanding, and judging—all presuppose and complement each other.64 Experiences without understanding are unintelligible, but understanding requires experience to act upon.65 Equally, understanding without judgment is meaningless, but judging involves an intimate interaction with an insight, and through the insight, with experience.66
Insights tend not to occur singly, rather they often occur in complex webs, where an initial insight can trigger the necessary questions and provide explanatory material that make the next insight much more likely.67 Where a system of insights leads to a radically new understanding of the subject, there arises what Lonergan termed a higher viewpoint.68 The insights that allow the higher viewpoint provide the basis for a rich, broad line of inquiry which transcends the prior understanding of the subject.69
Given this tripartite cognitional structure of experience, insight, and judgment, and the development of knowledge, Lonergan was able to describe the relationship between knowing and deciding.70 Deciding is an activity that subsumes the structure of knowing in much the same way that, within the structure of knowing, judging [*PG833]subsumes simple understanding, and understanding mere experience.71 So in the process of deciding, the decision maker first experiences, understands, and judges the truth or existence of alternative courses of action.72 In order to choose between extant alternatives, however, one must further judge the value of the alternatives.73 Thus the decision maker must further experience, understand, and judge the value of the alternatives before choosing the greatest value.74 Value, then, is a basic element of deciding.75 Deciding adds to the evaluation of a commitment in order to “bring some course of action into being which, if you do not do it, will not exist.”76
By basing all his work on his understanding of cognitional structure, Lonergan described the process of knowing, from its beginnings in experience.77 He traced the transformation of experience into understanding through insight, and the judgment that asks if the insight is true or not.78 Finally, he incorporated this structure of knowing into a broader structure of deciding, which includes determining the value of alternate courses of action, and committing to bring the most valuable alternative into being.79
Although the cognitional structure is the same in each person, it clearly is not a static equation that necessarily leads to correct conclusions.80 The world is full of people who, although sharing a single cognitional structure, make radically different decisions in exactly the same situations.81 This, however, is not necessarily a bad thing.82 Diverse backgrounds and applications of the structure allow for multiple [*PG834]outcomes, which is one reason why Lonergan understood that a community is necessary to combat overall decline in society.83 Besides legitimate differences, however, it is also true that decisions are sometimes made poorly and incorrectly.84 As one Lonerganian scholar has pointed out, “[b]esides the desire to understand, there is also the fear of understanding.”85 An individual’s fear may operate in many ways to block insight.86 For example, fear may intrude at the fountainhead of cognitional activity, by blocking the sense of wonder upon which the whole activity depends.87 The individual may not want to understand, and thus flee from insight.88
At other times, an individual may prefer him or herself to the group in such a way as to choose to block out the insights that would force each to see his or her own selfishness.89 An entire economic or racial group within a community may resist changes, either actively or passively, and so avoid understanding how these changes would actually improve the community.90
Lonergan also described the general bias of common sense toward theoretical patterns of knowing.91 Although the same cognitional structure described above is found in everyone,92 individual people according to their needs and practices apply it in various situations and towards various ends.93 Lonergan noted that there is one very basic distinction in patterns of knowing that causes a great deal of trouble.94 At certain times, people direct their attention toward scientific, disinterested knowing, and then they anticipate understanding generalizations and technical answers.95 At other times, people are [*PG835]interested in common sense knowing, in understanding each immediate situation in a very practical way, and seeking particular and practical answers.96 As even this summary statement of the different purposes of the two patterns of knowing indicates, the two are complementary; common sense thinking solves practical immediate problems, while theoretical knowing generates long-term planning and describes common-sense situations in helpful ways.97 But in fact the tension generated between the two patterns often breaks down into what Lonergan termed general bias.98 Common sense knowers, because they are by definition incapable of explanatory introspection, cannot accept that common sense is a limited field and may often disparage theoreticians as useless dreamers.99
Unfortunately, when people of common sense disparage theoretical knowing the result is often an overall cycle of decline.100 Common sense, with its focus on immediate, contextual decisions, is incapable of successfully guiding a society in the long term.101 The various individual and group biases described above102 contribute to shorter cycles of decline which cause chaos and decay in specific parts of society, by restricting and distorting the decision-making processes.103 And when left unchecked because of the general bias against theory, this gradual decay can incrementally drag an entire culture into lower viewpoints and more restrictive horizons.104 The only answer to this problem is the creation of a higher viewpoint that will “attack the problem at its source.”105 This higher viewpoint must provide a method for interpreting history and identifying the sources of the problems, in individuals, groups, and the society as a whole, and de[*PG836]termining what steps can be taken to remedy the problems and reverse the cycle of decline.106
Finally, we can approach Lonergan’s definition of objectivity by synthesizing the previously introduced concepts. This definition of objectivity will utilize and combine the cognitional structure and the explanation of error set out above.107 Objectivity is first, merely putting aside passions, prejudices, and biases.108 And second, objectivity is simply making true judgments and decisions.109
In the first sense, it is the unrestricted desire to know which drives and guides objectivity.110 This desire is unlimited, it drives people, ultimately, to search for correct answers to every possible question.111 Because this desire strains toward the answers to all questions, it drives the process of intellectual development.112 Because it is oriented toward only correct judgments, it guides the process of self-improvement.113 Lonergan captured this sense of objectivity when he wrote, “[T]o be objective . . . is to give free rein to the pure desire, to its questions for intelligence, and to its questions for reflection.”114
The desire to know may, however, be distorted by biases of egotism or fear.115 A bias may be either personal, or may result from membership in a group or society.116 As to personal biases, the solution is to work to eliminate them through a constant process of improvement.117 These biases must be pruned through introspection and comparison with the best self the knower can imagine for himself.118 Each bias must be identified, eliminated, replaced with a proper or true insight or web of insights, and all the branchings and effects of the bias must be searched out and reversed.119 As each is [*PG837]successfully dealt with, the knower’s ability to conceive of himself as potentially perfect may improve, leading to further discoveries of bias and further self-improvement.120 The only alternative to this strict regimen of attention and work is to allow oneself to sink downward into a personal cycle of meaningless chaos.121
As to group and cultural biases, a similar framework of attention and effort is required.122 Just as the individual is juxtaposed against his or her own potential perfection, the culture as a whole and in its various parts must be evaluated against the ideal society, what a society would look like if all correct decisions were made.123 The society must be analyzed in terms of various areas of progress or decline.124 Areas of decline must be identified, their effects studied, and corrections made, both on the individual level and on the public level.125 Because the scope of a modern society is so enormous, a meaningful critique of this sort requires many people, perhaps including experts in history, psychology, politics, economics, spirituality, law, and philosophy, to collaborate.126
People making objective judgments must also account for the bias common sense decision makers have against theory and anything that has no practical effect, which Lonergan termed the general bias.127 Lonergan saw this general bias against theoretical knowing as a terribly invidious and widespread problem.128 It is both positive and negative; it rationalizes as well as blinds.129 Despite the outline provided for the correction of error, the struggle against the blandishments and lies propagated by errors is long-term and lacks a clear standard for victory.130 There are, besides, further difficulties as Lonergan comments in Insight, “[b]eneath [this problem] lies the almost insoluble problem of settling clearly and exactly what the general bias is. It is not a culture but only a compromise that results from taking [*PG838]the highest common factor of an aggregate of cultures.”131 As a result, Lonergan called for the sort of collaboration mentioned above; a broad-based effort, composed of many experts working in community, and with only a long-term hope for success.132
In the second sense, objectivity is simply making true judgments and decisions.133 A judgment is absolutely objective if all the questions that could possibly be asked about the insight that is being judged have been satisfactorily answered.134 In non-ideal situations, absolutely objective judgments do not often occur.135 Rather, judges must, in the interest of proceeding with life, content themselves with answering a restricted range of further pertinent questions.136 This results in a provisional judgment.137 Of course, deciding which questions are pertinent requires a correct judgment as well, and so on.138 Because the desire to know is never satisfied, even these provisional judgments will be reexamined from time to time, checked against new judgments, and eventually incorporated into a higher viewpoint.139 The judgments will be incorporated in a way that affirms the validity of the previous judgment, but offers a new explanation, a new spin, or a broader context in which to place the earlier judgment.140 Or the provisional judgments may be reevaluated and found wanting, to be replaced by a better judgment, one which incorporates a broader web of related insights or satisfies a greater number of criteria.141
Lonergan delineated his basic approach to objectivity simply in four transcendental precepts, “Be attentive, Be intelligent, Be reasonable, Be responsible.”142 According to Lonergan, to ignore these pre[*PG839]cepts is to condemn oneself and ultimately one’s entire society to decline.143 To practice them is to become a wise knower and an objective decision maker—a true progressive.144
Ronald Dworkin is one of the preeminent contemporary Anglo-American legal philosophers.145 As such, he provides a respected, articulate, and complex contra position against which to apply Lonergan’s work to the philosophy of law. Thus, Part II builds up to an explanation of Dworkin’s approach to objective decision making.
Ronald Dworkin, in his book Law’s Empire, promulgated a theory of law—what it is and how society does and should utilize it.146 In doing so, he considered many of the relevant issues that Lonergan dealt with.147 Still, because of the specific nature of Dworkin’s work it is necessary in many cases to draw these broader, underlying concepts out of Dworkin’s notes, and to delve into the theoretical implications and assumptions which stand behind his arguments.148
This exploration of Law’s Empire begins by examining the disagreements in the philosophy of law which exist just beneath the surface of the everyday practical workings of the law.149 Some of the most common topics of this debate are the questions, “Do judges make law? And should they?”150 In order to answer these questions, Dworkin suggests we must first explore, in broad terms, what exactly judges are doing when they judge.151 Dworkin answers this question by proposing his theory of interpretation, which applies his implicit theory of cognition to legal decisionmaking.152 Second, Dworkin delves into the question of what principles should and do guide judges when making decisions.153 Dworkin proposes his principle of integrity to mediate between justice, fairness and due process, and allow decision makers [*PG840]greater flexibity.154 Third, Dworkin attempts a theoretical, but descriptive, justification of the concrete decisions the legal system makes everyday.155 Finally, this justification is extended into a theory of objectivity, which explains why people should accept judges’ pronouncements.156
Disagreement and debate about the law can be carried on despite widely differing conceptual frameworks because, Dworkin claims, the debates are all aimed at interpreting the same concrete set of social practices, namely the behavior of actual judges, and the existence and observable effects of statutes and judicial opinions.157 Understanding the sort of interpretation that commonly occurs in these debates is therefore a key element for Dworkin in developing a theory of law.158 Toward this end, Dworkin noted that people use several differing interpretive schemes, depending on the context.159 The most common is conversational interpretation, interpreting the sounds or marks other people make to convey meaning.160 Others include scientific interpretation, artistic interpretation, and social interpretation.161 He characterized the interpretation that lawyers participate in as the interpretation of social practices, or social interpretation.162 Dworkin described social interpretation, along with artistic interpretation, as creative because both aim to interpret something created by people (arguably unlike scientific interpretation) and yet distinct from the individual (unlike conversation).163
Creative interpretation is central to Dworkin’s argument.164 First, artistic interpretation is necessarily constructive, as opposed to being simply another instance of the conversational method.165 Conversational method tries to discover the intention of the author or speaker, [*PG841]but creative interpretation tries to interpret the work (or social practice) as the best possible example of its genre.166
Dworkin described several basic steps in this creative interpretation.167 The first step is pre-interpretive, where the interpreter decides on the broad outline or definition of what is to be interpreted; for example, deciding which social custom to interpret, and what that social custom is.168 Even this first step may entail a certain amount of interpretation, as customs do not sort themselves nicely into manageable categories.169 The second step is to value the work or custom being interpreted; why that custom, in general, is worth pursuing.170 Finally, there is a post-interpretive, or reforming, stage during which the interpreter will adjust, or suggest adjustments to, certain specifics of the practice or work in order to make the custom work better, or become more valuable.171
To capture the foregoing definition in a practical example, Dworkin proposes that the interpretation of law, or any other social practice, is analogous to a chain novel wherein a subsequent author constructs each chapter.172 Each author takes responsibility for constructing the next chapter in such a way that it represents the best interpretation and continuation of the novel as a whole.173 Each author, although not formally constrained, is practically limited by two considerations.174 First, the author is limited by basic fit; for example, a romance novel cannot suddenly be transformed into a physics textbook.175 Second, where more than one interpretation makes sense, the author must choose the one which best suits the work as a whole.176 A variety of factors, including both textual (or procedural in the legal context) and aesthetic (substantive) will have to be considered.177
One common objection to this view of interpretation is that interpretation, especially artistic interpretation, is really about recovering the author’s intent in producing the work, not constructing it.178 [*PG842]Construction is always subjective, the objection goes, and what is needed is an objective understanding of the author’s intent.179 Dworkin replies that the recovery of original intent is an extremely complex, and ultimately problematic, concept.180 The author may be dead or may have changed his views, or the author may have intended the work for a particular audience who would have understood it in a way not accessible to the current audience.181 The complexities are so great, in fact, that they necessarily result in ambiguities for the conscientious interpreter, choices wherein she has no guidance except that she hopes to interpret the work in the most valuable light possible.182
Further complexities arise in the context of interpreting social customs, such as law.183 When there is no clear author, for whose intention is the interpreter searching?184 The answer cannot be the interpreter’s own intention, because the underlying point of the overall objection to Dworkin’s understanding of creative interpretation is that his theory is subjective, so the answer must be outside the interpreter.185 The intention of any single member of the social group will be equally subjective, however, and attempts to find an intention common to all the members of the group are likely to fail, particularly if the custom in question is very important or powerful.186 Dworkin briefly discusses finding the intention of the group as a unity or a superentity, but concludes that even if such a thing were possible, the result would simply be one more subjective opinion to be evaluated and debated.187
Another option is for the interpreter to generalize.188 By raising the explanation of the social custom to the proper level of generality, the interpreter can include most if not all of the widely varying members of the group whose social practice is being studied.189 This, how[*PG843]ever, is still not the same as creating a linguistic foundation for the social practice.190 The interpreter’s general interpretation stands open to challenge, and it applies only to a specific time and community.191 Because there is no real alternative to this conversational model of interpretation, Dworkin asserts that his interpretive theory is the only available system for explaining and interpreting social practices.192
Dworkin next applies this interpretive theory to the field of law.193 He begins by describing judges as interpreters of a social practice, as discussed above.194 As with the producer of a play or the author of a chain novel, judges normally take part in the process rather than simply criticizing it.195 Each judge’s interpretive method depends on what he or she sees as the value of the entire system.196 Rather than leading to an unintelligible dispersion of interpretations, however, the combined pressures of various core concepts that every interpretation must account for, the pressures of living within an actual society, and the custom of relying on precedent (which includes other judges’ interpretive theories) help to unify judges.197
On the other side, a number of factors tend to force divergence among judges. These include the variety of ideological commitments that judges bring to the bench, the dynamics of the interpretive process, and differing conceptions of core ideas such as justice and fairness.198 Although too wide a divergence in one generation would promote chaos and disintegration, too much similarity would stagnate the system, according to Dworkin.199
One of the most important unifying factors is the judges’ commitment to certain principles, with which each decision must be in [*PG844]accord.200 Dworkin introduces integrity as one of the four major principles of our political system, setting it alongside the commonly recognized principles of justice, fairness, and procedural due process.201 These four principles form the core of our political system and provide the major unifying force behind legislatures and courts, and among the various legislators and judges.202 They provide stability and guidelines for judges as they interpret the social practice we call law.203
Dworkin divides integrity into two important aspects. One aspect is political integrity, which requires that those creating the law work to keep it coherent in principle.204 The second aspect is adjudicative integrity, which requires that those applying the law make decisions which are coherent with the past, and coherent with the whole scope of the law, not piece by piece.205
It is important to note immediately that integrity is not simply consistency.206 Integrity may require a departure from a previous practice, which consistency would require upheld, if the practice is found to contradict a principle.207 Because integrity calls for consistency in principle, not in policy, it is possible that the best interpretation of a principle may call for differing policies in differing situations.208
Dworkin provides two criteria for judging integrity which are, in fact, the same criteria used in any creative interpretation: does it fit our politics and does it reveal our politics in the best light?209 Integrity does fit our politics, because only the assumption that political decision makers value integrity explains why, for example, we do not allow checkerboard statutes (e.g., a criminal law that applies only to arrests made every other Friday), or apply equal protection in a specific instance only to people born in even years.210 Integrity is also attractive, because it often prevents inefficiencies and provides a theory which gives protection against arbitrary and deceitful practices.211 Integrity [*PG845]also heightens the responsibility that individual citizens feel toward their political system insofar as their own interactions fall within the scope of this same integrity.212 It is attractive, however, only if we accept Dworkin’s argument for personification of a moral agent.213
The law as integrity argument is dependent upon Dworkin’s assumption that a community can be treated as a single unit, or personified, and can thus be committed, in a sense similar to an individual, to a principle like integrity as a unity.214 The idea of personification allows Dworkin to assert that the community actually is committed to the principle of integrity despite individual denials of the principle or refusals to act with integrity.215 Dworkin defends personification through a common-sense example. If an automobile company’s cars were found to be defective, and a thorough inquiry determined that in fact no individual employee or officer was guilty of any negligence in designing or building the cars, who should bear the burden of replacing the defective cars?216 If we treat the company as a whole as a moral agent, we can blame the company, apart from, and prior to, any individual.217 Dworkin describes actual examples of personification at work in the guilt contemporary white Americans feel toward the descendants of slaves, and Germans for Holocaust survivors, for example.218
One important feature of integrity is that it is a real-world principle.219 In a perfect world, integrity would not be needed because every political decision would be perfectly just and fair.220 But where conflicts develop, where choices must be made between fairness and justice, integrity exists as another consideration that may provide a legitimate reason to tip the balance one way or the other.221 In fact, Dworkin defends integrity because its adoption allows his argument for the legitimacy of our community to succeed.222
The principle of integrity underpins Dworkin’s theory of the moral justification of the law.223 What justification is there for the co[*PG846]ercive effects of the law, and of political force in general, upon individuals? A political system that includes the principle of integrity has a better claim to this legitimacy than a political system without integrity according to Dworkin’s description of society.224
Dworkin describes society as a community comprised of associative obligations.225 Several conditions are necessary to give rise to these obligations in any meaningful sense. The members of the community must accept, at least in a pre-interpretive sense, the structure of what obligations it is that they will jointly undertake.226 The members of the group must understand that these obligations are special, owed only to the other members of the group and not owed in the same sense to outsiders.227 The associative obligations are also personal, they run from individual to individual, not merely to the group as a whole.228 Finally, the obligations also require personal concern for other members of the group, and that concern must be equal toward all members.229
Dworkin terms this the principled model of community.230 In the principled community, people view their associations as driven, at root, by a shared set of principles, like the four noted above, which result in various more or less satisfactory practices.231 Which principles should be included is considered a serious question for debate in this model.232 The members accept their obligations as arising from their shared history, even while working to more fully implement their chosen principles.233
The principled model, Dworkin asserts, is the best possible model for a “morally pluralistic society.”234 The principled understanding of our community justifies the exercise of “bare power” by the state, despite the incredible diversity among our citizens.235 It is worth noting that merely because the community is principled does not guarantee that it is just.236 There may come a time in the life of the community when the demands of justice override even the community’s obliga[*PG847]tion to the principle of integrity.237 But at least the principled model allows for the possibility of a legitimate and just community.238
The principled model, although it has been described as a good fit with our society’s actual practices, does not claim to cover every example of actual practice.239 There are cases where actual practice opposes principles that society has agreed upon, and this model condemns such as breaches of integrity.240 Because no generation starts with a clean slate, but rather breaks in upon an historical stage already cluttered, justice and fairness will at times conflict with integrity, and individual decision makers must in those cases decide which principle is best suited to the situation.241
Dworkin demonstrates how judges should make these difficult decisions in his explanation of the adjudicative side of integrity.242 Law as integrity rejects the dualist proposal that judges either find or make law when they decide cases.243 Applying the principle of integrity, judges attempt to interpret the law as though it were expressing the principles of a single personified viewpoint.244 The flip side of this position is that these decisions should be regarded as valuable only if they represent the best interpretation of the principles of justice, fairness, procedural due process, and integrity.245
Integrity does not require that a judge’s decision be consistent with all historical forms of principles.246 Where a society has abandoned a certain historical interpretation of justice, the judge is not required to maintain integrity with the historical interpretation.247 Integrity is only required contemporaneously, across the various areas of law.248 The effect of history in law as integrity is limited by its contemporary focus and integrity does not try to capture the intent of historical figures, for example.249 History does retain a place in [*PG848]Dworkin’s theory of law, however, because an understanding of history is necessary to evaluate the legitimacy the scheme of principles that gave rise to current laws.250
To illustrate his theory, Dworkin creates a mythical judge, named Hercules, and describes the steps he would take in deciding a complex and difficult case to provide a narrative example of how his principled theory of integrity would be utilized in practice.251 Dworkin describes Hercules as a judge of inhuman patience and superhuman intelligence, who has an entire career to devote to a single case.252 Dworkin is also careful to point out, while describing Hercules, that law as integrity is intended to describe an approach, a method of asking questions, personified by Hercules, and the answers are variable depending on the specific problem.253
Hercules begins by attempting to form a coherent theory which explains the past decisions of the issue at hand.254 He first generates a list of possible interpretations which would account for the prior decisions.255 Next, he tests these theories by asking whether a hypothetical individual official, acting as the personification of the community, and coming to coherent decisions, could have used any of these theories.256 Theories that clearly fail this test are rejected.257
Hercules proceeds by expanding his inquiry into more general fields of law.258 He tests each remaining theory to see if it could be understood as expressing a principle which justifies the entire legal system.259 Of course a finite judge would be unable to pursue this sort of inquiry to its ultimate conclusion, but would be able to approximate it both through a wise understanding of the law and more limited research confined to a certain department of the law.260 If only one theory remains, well and good, Hercules’ job is done.261
[*PG849] If the results are divided, though, either more than one theory still fits, or no theory adequately explains the entirety, Hercules must move to the second aspect of interpretation.262 He must attempt to determine which theory shows all the prior work, or decisions, of the personified community in its best light.263 In order to do this, he will have to consider both his own and his community’s perceptions of justice and fairness, and balance those against integrity.264 In the end, Hercules makes his decision, and announces it as law.265
Dworkin’s view of objectivity underlies his description of judging and what he believes is necessary to justify judicial decision making.266 Unlike Lonergan, however, Dworkin’s theory of objectivity does not seem to be constructed from other elements of his theories.267 Rather, Dworkin’s judicial objectivity is, at least ostensibly, simply the application of a common sense, descriptive view of objectivity.268
Because Dworkin’s overall philosophical views are commonly seen as a variation of natural law theory, he is often accused of relying on an outdated philosophical concept of reality, one in which there is a “really real” world269 of meaning and ultimate truth somewhere out there beyond the everyday world waiting to be discovered, like Newton’s ether.270 Dworkin, however, denies this charge and sets out his theory of objectivity in contrast to this classic natural law explanation.271 As a preliminary matter, he notes that it is absurd to claim that [*PG850]there are no right views, for then the person holding the view that there are no right views cannot herself be holding a right view.272
Dworkin’s view of objectivity avoids both this absurdity and the classic natural law explanation of objectivity.273 He explains that when he says something is objectively right, he is not referring to some elusive reality which is the source of truth.274 Rather he is saying that it is his belief that X is true, and that such a statement must always be backed up with sound arguments from policy, experience, or logic.275 So for Dworkin the difference between “I like vanilla ice cream” and “I think that objectively speaking vanilla ice cream possesses greater value than any other flavor” is merely that the first refers to one’s own taste, and so stands alone as a true statement, and the second purports to be true for everyone, and therefore requires that convincing evidence be presented.276 Thus, objective language for Dworkin is no more than a shortcut for claiming that good reasons exist why he believes a particular statement should be true for everybody, or is the best choice in a given situation.277
Nevertheless, Dworkin’s theory of creative interpretation provides the rough outline of a method of questioning that results in more correct decisions by judges, and is thus similar in its effects to what Lonergan termed objectivity.278 Under his theory, Dworkin expects judges to make decisions based on their determination of which choice will result in greater value for the community.279 Value in the legal context is judged in light of the four principles—justice, fairness, procedural due process and integrity—that provide the unifying force behind the community’s practice of law.280 Thus, the outcome that can be interpreted as best achieving these four principles is the most [*PG851]valuable, and should be chosen.281 The process of evaluation is accomplished by first generating a list of possible interpretations, then checking for rough fit in light of the four principles, and finally comparing whatever options remain and choosing the one that provides the most attractive understanding of the previous cases.282 According to Dworkin, this process will yield the “right answer”283 (as he has explained it) in a given case.284
The United States Supreme Court’s decision in Bush v. Gore provides an excellent real world scenario against which to distinguish Dworkin and Lonergan’s approaches to objectivity.285 In Bush v. Gore the Supreme Court settled the 2000 presidential election on December 12, 2000.286 A total of six opinions, including one concurring and four dissenting, were issued as the Court reversed and remanded the Florida Supreme Court’s decision.287 The Court’s decision prevented the recount and inclusion of certain votes in Florida’s final certified total.288 The effect was to preserve George W. Bush’s lead in Florida, and thereby ensure his overall victory.289
The media immediately dissected the opinions, and the majority members were widely maligned for their decision.290 The decision was considered weak in theory and principle, and explainable only on extra-legal grounds.291 Specifically, the five majority Justices were criticized for allowing their personal political preferences to improperly influence their decision.292 Critics asserted that the majority Justices [*PG852]were motivated by an overall preference for the Republican Party and the Republican candidate.293 These critics further asserted that some of the majority Justices were swayed by their hope to retire under a Republican President who could appoint a Republican replacement.294 Finally, they accused the Justices of acting in an attempt to cancel out the perceived Democratic preferences of certain members of the Florida Supreme Court.295
As a result of these assertions, one vocal critic, Professor Dershowitz, described the decision as corrupt, and noted that he could think of no other Supreme Court decision that had been so blatantly motivated by the Justices’ personal political preferences.296 Dershowitz set the stage for a discussion of objectivity when he wrote, “Some judges, of course, do actually apply the law in a neutral manner, without regard to their personal preferences. Others deceive themselves into believing that the arguments they are offering are neutral—that is, not explicitly calculated to produce a desired outcome.”297 This quote restates the question of objectivity, how can a judge neutrally apply the law, without allowing personal preferences to distort the outcome?
Several important issues must be resolved in order to answer this question. First, is there actually any possibility of an objective decision in a case like Bush v. Gore? Second, if such a decision is possible, what guidelines should a judge utilize in making the decision? And third, what would a judge in Bush have to do to ensure that her decision is free from impermissible personal preferences?
Part I explored Bernard Lonergan’s understanding of objectivity primarily through his work in epistemology and ethics.298 Part II explored Ronald Dworkin’s understanding of objectivity primarily through his work in jurisprudence and political philosophy.299 Despite the different contexts of these two approaches to objectivity, both an[*PG853]swered substantially similar questions.300 Part III will first summarize the two theories of objectivity, then apply both theories to a real world scenario and compare the effects of their respective explanations.
Is objectivity possible in a decision like Bush v. Gore? Dworkin, in light of his explicit statements about objectivity would answer no.301 Objectivity for Dworkin is only a matter of good arguments, so it would be useless to accuse the Justices who decided Bush v. Gore of corruption.302 A decision for Bush was as right as a decision for Gore, because both decisions are equally open to the charge that they were determined by personal preferences.303 The only possibility is to disagree with the Justices’ reasoning.304 Of course, Dworkin might suggest that the arguments the majority Justices actually relied upon were in fact private arguments, rather than the equal protection arguments explicitly included in their written opinion.305 Dworkin could argue that the majority Justices’ personal preference for the Republican party should have been accorded much less weight than the legal principles the Justices customarily may consider.306 Still, this further argument does not resolve the problem. Even if a particular Justice were able to ignore the identities of the contestants and put aside her personal preferences, it would be impossible, under Dworkin’s formula, to determine whether a certain argument in the final decision was decisive because of its “objective” legal rationale, or if it simply provided a basis for the Justice to decide the case in the same way that she voted in the election.307 So, according to Dworkin’s theory, because Justice O’Connor favors the Republican party, the fact of her decision for Bush, the Republican candidate, appears to be proof of her bias, regardless of the strength of her underlying analysis.308 Thus, [*PG854]Dworkin’s explicit theory of objectivity ultimately provides no method by which to differentiate between two options in a hard case, except personal preference.309
Lonergan, on the other hand, would assert that an objective decision is possible, although not logically necessary.310 An objective decision would be possible because the Justices who decided between Bush and Gore are knowers.311 As knowers, they have the capacity to gather data, understand the data, judge the data, evaluate the resulting alternatives and choose the best alternative.312 Within this process, each Justice has the capacity to critique themself; to experience themselves as knowers, to understand themselves as such, and to judge whether the decisions they have made in regard to the case are contaminated.313 If the decisions are in fact contaminated by bias, each Justice has the capacity to mentally reopen the decision, to ask further questions, gain further experience, etc.314 If this cycle is repeated until all relevant biases have been eliminated and all the further pertinent questions have been answered, within the applicable time limits, the decision approaches objectivity.315
If an objective decision is in fact possible, what practical steps could a Justice deciding Bush v. Gore take in order to ensure that their own decision is actually objective? If we rely on his alternative interpretation argument instead of his explicit theory of objectivity, Dworkin first provides a guiding motivation for the Justices.316 The judge’s overall goal, according to Dworkin, should be to make a decision that interprets all the relevant background material, including [*PG855]the judge’s complete understanding of the particular area of law and society, in its best (most aesthetic) light.317
Dworkin provides a two step elimination process for realizing this aesthetic result.318 In the first round of elimination, the judge should allow only those options that provide a rough fit with the broad purposes of the relevant laws and precedents.319 Following this model, a Justice deciding Bush v. Gore could quickly narrow the available options down to a decision either for Bush or for Gore, and exclude a decision for Nader, for example.320 The Justice could also narrow her rationales to her concept of equal protection, and the deference due a state supreme court, and discard any consideration of tort liability.321
In the second round of elimination, the judge should choose from among the remaining options based on their aesthetic appeal—their “fit” with the existing laws and precedents.322 Dworkin claims that while there is a real difference in the strength of various arguments, there is no general way to evaluate that strength except in terms of personal preference.323 If this is true, it seems unlikely that a community would ever come to a shared understanding of a deeply
divisive issue.324 In particular, it should come as no surprise to Dworkin that the Supreme Court was divided about the validity of the Supreme Court’s decision for Bush.325 When the nine Justices evaluated the equal protection arguments that were presented by the parties, five thought that stopping the recount was the option that best fit prior precedent and law.326 Four Justices thought otherwise.327 But the difference between the majority and the minority fits more or less eas[*PG856]ily within the unsettled areas of equal protection doctrine where reasonable people can disagree.328
Similarly, Lonergan also initially described a guiding motivation, but one that is both broader and more basic to objective decision making.329 Lonergan based the process of objectivity on human curiosity, the desire to know, potentially unrestricted by error and bias.330 This curiosity drives the decision maker not only to gain insights, but correct insights; and thus to continually improve the quality of her judgments.331 The decision maker is genuine insofar as she pursues decisions, for example in regards to eliminating error and bias, that improve her capacity to make correct judgments.332 Thus, for Lonergan, the decision maker’s first loyalty is to herself as a genuine seeker.333 It is through this genuineness that she becomes a good judge.334
Grounded in this concrete orientation toward correct judgments, the judge proceeds through the activities of experiencing, understanding, judging and decision making.335 In the first place, the judge is required to obtain information upon which to base the decision.336 In a situation like that in Bush v. Gore, this information comes through several obvious channels, appellants’ and amicus briefs, the records of the lower court decisions, precedent and applicable statutes.337 It is also derived, however, from a complex web of prior experiences, long-held jurisprudential theories, evaluations of the actions and motives of the lower courts, and so on.338 It would plainly be counter-productive to expect a judge to forget everything that makes him a good judge, the experience derived from years spent making difficult decisions when making a difficult decision.339
[*PG857] In addition to acquiring and then understanding all this information, which includes both the general background experience gained over a period of years and specific information about this case, the judge also evaluates, or judges, that understanding.340 Judging the understanding includes, first, asking of each piece of information, is it so?341 Each true bit of understanding can be legitimately synthesized into an argument that tends to support one party or the other.342
The final step before deciding is to consider the value of each of the several arguments.343 After judging the information, understandings, and judgments with the greatest certainty possible within the time limits allowed,344 a judge chooses, considering the value of all the principles that will be given effect by her choice.345 In light of this definition of evaluation, although the decision may initially seem a simple choice between George W. Bush and Albert Gore, Jr., formulating the problem as binary is injudicious, and tends to obscure the non-binary complexities that the Justices actually faced.346 In contrast to Dworkin’s personal preference argument, Lonergan’s work acknowledges that the real world consequences of the decision did not boil down to a binary choice.347 Nonetheless, much of the criticism of the final Bush decision failed to appreciate the actual complexity of the arguments presented by both sides.348
Lonergan restated his method of decision making in four succinct principles which encapsulate a judge’s responsibility and serve [*PG858]as guidelines during the decision making process.349 The first principle is, be attentive.350 The attentive judge directs attention to the relevant experiences, memory and data, that present themselves to her consciousness.351 The second, be intelligent.352 The intelligent judge seeks to understand everything she hasn’t already understood, to become aware of “hitherto unnoticed or unrealized possibilities.”353 The third, be reasonable.354 The reasonable judge distinguishes between viable and unviable alternatives.355 Finally, the fourth, be responsible.356 The responsible judge values alternatives correctly, with an eye to what is best for society, for the groups involved in the dispute, and for her own development as an objective decision maker.357
When a judge has engaged in the activities of knowing and decision making, how can he be sure that he has made a decision free from bias? Bias in Dworkin’s work consists of mistaking weaker arguments for stronger ones, for whatever reason.358 Because Dworkin understands objective language only as a shortcut for asserting an argument of universal application, all judgment is essentially based on argument.359 Thus, viewed from within Dworkin’s framework, his attempt to blame Justice O’Connor’s personal preferences, namely her political ties to the Republican party, for the outcome of the case, can be viewed as an attempt by Dworkin to avoid the fact that she holds a different view of equal protection than Dworkin, and there is very little Dworkin can do about that fact.360 No matter how strongly Dworkin might disagree with her decision, under Dworkin’s definition of objectivity, he can never logically claim the right to enforce his own decision over that of a judge.361
[*PG859] By contrast, Lonergan’s treatment of error is thorough and methodologically conclusive. He discusses a number of ways in which bias creeps into decision-making activities.362 At the most basic level, fear of understanding can undermine the force driving the entire activity of decision making, the pure desire to know.363 Simple egotism can also interfere with the process.364 A judge who expected to realize personal gain from a particular decision could be open to this sort of influence.365 Or a subtler group egotism, for example Republican versus Democrat, could distort the decision.366
These biases can only be corrected through a difficult, long-term process of introspection, development, and, ultimately, transcendence.367 A judge who frequently makes overtly objective decisions is likely to have become conscious of, and to have worked to eliminate, these biases in herself over the course of her career.368 And yet, without both a general theory of error and correction, and further, without some foundation upon which to proceed, bias may go undetected even by a conscientious judge.369 In the context of a particular case, a careful judge should consciously review all the potential sources of bias arising in the case, especially those which have been previously identified as particularly germane to the individual judge.370 Specifically in the context of the Bush v. Gore decision, critics have identified a number of perceived biases that may have affected the final outcome of the case.371 Ultimately, Lonergan’s method does not claim to definitely determine if Bush v. Gore was decided objectively or [*PG860]not, because his method is primarily focused inwardly.372 Lonergan’s method does, however, provide both a method by which to evaluate one’s own response to the Supreme Court’s decision, and, at a minimum, a shared framework around which to conduct a dialogue and critique of the decision.373
Lonergan’s description of the varieties of bias suggests a further avenue for consideration.374 In the context of American society as a whole, a judge faced with a political decision should consider if bias has crept into the process of choosing judges.375 Are judges chosen for their objectivity, or exactly for their perceived ideological bias? If the latter seems to be the case, the ruthless pursuit of objectivity becomes even more important for the individual judge.376 Knowing that she has been selected as a judge based on partisan concerns, she must determine whether her true duty lies to objectivity or to her patrons. If to objectivity, then she must search out these partisan biases and eliminate them.377 If judges in the United States are chosen for their partisan commitment, that answer also seems to call for a meaningful critique of society, a critique that can provide the impetus for communal introspection, correction, and further development.378
Bernard Lonergan’s philosophy provides a rich, detailed foundation upon which to base a normative method for objective decision making by judges and lawyers. This foundation is constructed from a brilliant, comprehensive, yet at the same time practical, understanding of how people think and know. While building the complex structure that leads up to the possibility of an objective judgment, Lonergan returned at each step to the driving force of the human intellect—a sense of wonder and innate curiosity. It is this curiosity that drives the basic cognitional structure of experiencing, understanding and judging. It is this same curiosity that makes it possible for a willing thinker to search for and eliminate errors. And finally it is curiosity [*PG861]that allows the thinker to reflect on her own process of knowing, to evaluate the extent to which she has discovered and corrected errors within herself, and finally to determine the probability that her decision is objective.
Lonergan’s method for objective decision making is well suited to the specialized field of law. And Lonergan’s work on objectivity compares favorably with that of Dworkin, a leading legal philosopher. Lonergan’s work even successfully addresses a few areas where Dworkin’s work seems to disappoint. Based on this analysis, Lonergan’s contributions to general philosophy should not be lost to the law merely because of a shortage of work specifically applying his thinking to the law. Hopefully, legal philosophers will have cause to consider Lonergan’s work more frequently in the future.