Document Type

Article

Publication Title

Fordham Law Review

Abstract

I am happy to participate in this symposium honoring the work of John Feerick. My title is "Legislating with Integrity," and I want to distinguish it immediately from a title that I had thought about addressing in this panel, "Integrity in Legislation." If I had called the talk "Integrity in Legislation," I might have embarked on a discussion of some of the themes that Ronald Dworkin raised in his book Law's Empire, for although integrity-a central theme in Dworkin's recent jurisprudence-is invoked in that book largely as a value associated with judicial reasoning, Dworkin also applies the idea of integrity to legislation. According to the analysis in Law's Empire, the integrity of legislation has to do with the coherence of the terms of the bills that are proposed and voted on in the legislature. Dworkin makes an important argument against "checkerboard legislation," by which he means legislative proposals that are internally incoherent, being the arbitrary upshot of political compromise between rival positions in the legislature. He offers, as a hypothetical example, a bill representing a compromise between pro-choice and pro-life factions making abortion criminal for pregnant women who were born in even years but not for those born in odd ones. Integrity in legislation also has to do with a duty that Professor Dworkin thinks is incumbent on law makers, to pay attention to the coherence of the body of law as a whole-"to make the total set of laws morally coherent" - so that they are not like the legislators whom William Blackstone once referred to as the "rash and unexperienced workmen," nailing on ill-considered and ad hoc alterations to the great cathedral of the common law, and ignoring the integrity of the underlying structure. That would be a worthy theme, and one aspect of it- the argument about checkerboard laws-I shall return to briefly later. But Dworkin's sense of integrity in legislation is a fairly static notion of integrity, and today I want to talk more dynamically about the activity of legislating, that is, about the active political process by which our laws are made. My aim is to say something about the importance of integrity in that process. This theme of integrity in the processes and activities of law and government is a recurring motif in the life and work of the man we are honoring here today. I will begin by focusing specifically on what happens inside the legislature, but I will end by saying something about the way in which we as a political and legal community address the legislature, the demands we place upon it ( as compared with the demands we place upon other aspects of our political process), and what we think and say about formal legislation as a mode of making law.

First Page

373

Volume

72

Publication Date

2003

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