Which of the following terms refers to the principle of justice dictating that society should strive to provide the greatest good for the greatest number?

I. Introduction

1For over a quarter century, Ronald Dworkin has steadfastly held to the proposition that there is a single right answer for every hard case [1]. This notwithstanding numerous objections and critiques [2], and notwithstanding that he acknowledges that pluralistic contemporary constitutional democracies have typically experienced wide ranging disagreements concerning morals and politics [3]. Dworkin's conclusion seems all the more counterintuitive given that he does not regard legal interpretation as merely mechanical or syllogistic, but rather as hermeneutical and akin to literary interpretation [4].

2It seems at first easy to refute the one right answer thesis as illustrated by the following example. In a pluralistic democracy with a written constitution containing broadly phased liberty, equality, and privacy rights, but with no explicit reference to abortion, constitutional judges are called upon to decide whether a law criminalizing abortion violates the constitutional rights of women. Suppose further that the polity is deeply divided, some being convinced that abortion amounts to murder while others consider a women's right to have an abortion as a fundamental component of her constitutional liberty, privacy and/or equality rights; and that the law banning abortion was adopted with the support of the barest of majorities in the parliament. Under these circumstances, both a ban on abortion (perhaps with the exception of allowing abortions necessary to preserve the life or health of the mother) and extending protection to a woman's decision to abort loom as equally plausible answers to the constitutional question at issue, thus suggesting that Dworkin's one right answer thesis is false for at least some hard cases [5].

3When placed in its proper context, however, Dworkin's thesis is not so easily dismissed. Indeed, Dworkin's one right answer thesis must be evaluated in light of his systematic effort to reconstruct the essential features of complex advanced legal systems, in general, and of the practice of adjudication within such systems, in particular. Moreover, Dworkin's reconstructive endeavor is set against certain particular theories of law and adjudication, principally positivism, legal realism and its successor critical legal theory, and the law and economics approach championed by Richard Posner [6]; and grounded in a particular political philosophy built on the proposition that all persons are entitled to equal concern and respect [7] and which bears a strong affinity to John Rawls's liberal egalitarian position [8]. Finally, Dworkin is not content to confine his reconstruction to the realm of abstract theorizing, but seeks instead to harmonize abstract principles and concrete practices and to integrate them into a coherent whole. Specifically, though he likens legal interpretation to literary interpretation, he factors in the differences between constitutional interpretation, statutory interpretation and common law interpretation, insisting that they are all compatible with the one right answer thesis [9]. And this in spite of the fact that statutory interpretation may be sometimes amenable to a deductive or even a syllogistic approach whereas common law interpretation requires an inductive approach that at least prima facie most often yields more than one plausible answer [10].

4By positioning himself against certain theories of law and by embracing a particular political philosophy and moral stance, Dworkin, makes it much more difficult to refute his one right answer thesis for any one who shares his liberal egalitarian premises. On the other hand, by turning to hermeneutics and by attempting to account for the full complexity of a common law based legal system bounded by a written constitution with the force of law such as that of the United States, Dworkin makes proving his thesis much more challenging and elusive. Dworkin is no doubt aware of this challenge which he has sought to meet through counterfactual reconstruction [11]. Indeed, Dworkin acknowledges that given the complexities involved in seeking to reconcile the constitution, statutes and relevant norms issued from the common law, ordinary judges may often be unable to discover the right answer, and may thus be relegated to choosing among several other answers over which reasonable judges may disagree. Dworkin rightly insists, however, that this does not mean that there is no right answer, and to prove his point turns to the heuristic device of imagining a superhuman judge, whom he names Hercules, who is able to grasp all questions of legal interpretation in all their complexity and implications [12]. Dworkin's claim is that Hercules can come up with the one right answer for every hard case. And to prove this, Dworkin engages in a Herculean task of counterfactual reconstruction of his own. The culmination of this task is the reconceptualization of law as a principle-based unified system of regulation consistent with Dworkin's moral and political vision — what we may, in short, refer to as "the one law principle".

5Dworkin's thesis amounts, therefore, to the following : if the judge Hercules counterfactually reconstructs laws pursuant to the one law principle, then there is one right answer for every legal question calling for judicial interpretation. In what follows, I will seek to demonstrate that even if one considers Dworkin's thesis in its proper context, shares his convictions concerning the paramouncy of the principle of equal concern and respect for every person, and embraces the virtues of counterfactual reconstruction, one must reject his thesis on pluralist grounds. In other words, if one takes pluralism seriously in both its factual and normative dimensions [13] then one must reject both the one law principle and the one right answer thesis. In short, if, as Dworkin asserts, law cannot be severed from morals or the good; and if there are, as Dworkin acknowledges, different conceptions of the good in complex pluralist societies such as those in the various Western constitutional democracies; then to the extent that interpreting the same law in light of different conceptions of the good (that are consistent witht he equal concern and respect principle) leads to different answers in certain hard cases, there cannot be a single right answer in such cases.

6To provide a more thorough account of Dworkin's thesis and of the pluralist case against it, Section II places Dworkin's theory in context, by comparing it to rival theories and by examining the critical distinction he draws between principle and policy. Section III briefly discusses the uses of counterfactual reconstruction and evaluates its role in the context of Dworkin's theory of interpretation. Section IV provides a critical analysis of Dworkin's counterfactual reconstruction of a complex legal system consistent with the one law principle, focusing specifically on his distinction between concept and conception, and on his reliance on the principle of integrity to warrant the legitimacy of judicial interpretation. Finally, Section V describes the pluralist implications of the equal concern and respect principle, and lays out the pluralist case against Dworkin's thesis.

II. Dworkin, His Rivals, and the Distinction Between Principle and Policy

7Dworkin's legal philosophy and one right answer thesis arise in response to three principal movements in contemporary jurisprudence : legal positivism; legal realism, its successors critical legal studies, and post modernism; and law and economics. Legal positivism and legal realism and its progeny reject the proposition that there is a single right answer in hard cases. Law and economics, in contrast, is compatible with the single right answer thesis, but is wanting according to Dworkin because it collapses principle into policy [14].

8In the broadest terms, legal positivism conceives law as a separate self-enclosed realm that is severable from morals and politics [15]. Consistent with this, the validity of law depends on its pedigree, and thus if parliamentary laws satisfy the operative pedigree requirements, judges must apply such laws faithfully while deciding individual cases. This poses no problems so long as laws can be applied deductively in a syllogistic form, the law figuring as the major premise, the facts as the minor premise, and the judicial decision as the conclusion. But what if the law is unclear or open-ended ? Positivists maintain that in those cases judges are given discretion, that they are entitled to act as interstitial legislators to fill gaps left open by legitimately adopted pieces of legislation. In short, for positivists, limited interstitial discretional judicial legislation can satisfy the operative pedigree requirement.

9For example, if a law provides that "no vehicles, including automobiles, motorcycles or bicycles, are allowed in public parks", and if a case must resolve whether the law in question prohibits the use of motorized wheelchairs in public parks, then on the positivist view, the judge in that case has the discretion to determine whether or not motorized wheelchairs should be included among the prohibited vehicles. For Dworkin, on the other hand, there is no such discretion as the judge involved must interpret the law in question in accordance with the principle of equal concern and respect. In this case, that principle does provide an answer, namely that for a disabled person to be able to enjoy a public park on a par with non disabled persons, he or she may need the use of a motorized wheelchair. Accordingly, the judge should interpret the law under consideration as not prohibiting the use of such wheelchairs.

10The above example may not amount to a hard case, but the latter should be in principle equally amenable to a resolution leading to one right answer by means of application of the relevant principles. And whereas in some hard cases, ordinary judges may not be able to ascertain the answer, Hercules will always be able to. Accordingly, the objectivity and solidity of the right answer in hard cases is akin to that of the right answer to a difficult mathematical problem. In both cases human limitations or errors do not detract from the validity of the one right answer.

11Leaving aside ontological questions concerning the relationship between law and morals, Dworkin's right answer thesis seems superior to positivist discretion, provided that certain conditions are met. Chief among these are : consensus regarding, or proven legitimacy of, the principles invoked in the course of resolving hard cases; and, that application of the relevant principles actually lead to a single right answer rather than to a plurality of right answers. If the first of these conditions is not met, then recourse to the principles involved would be merely arbitrary. Alternatively, if the second condition is not met, then recourse to principles would not obviate the need for judicial discretion.

12Whether these two conditions are likely to be met in pluralistic contemporary constitutional democracies will be considered in Sections IV and V below. For the moment, suffice it to note that if they are met, Dworkin's thesis is superior to that of the positivists, either because it provides a better account of what judges actually do or of what they ought to do. Indeed, if judges actually use what appears to be their discretion to decide hard cases pursuant to moral principles widely shared throughout the polity, then Dworkin's account is more accurate than that of the positivists. If, on the other hand, judges believing they have discretion decided certain hard cases contrary to what the relevant moral principles require, then their decisions are wrong, and Dworkin's theory is clearly better suited than that of the positivists to indicate what judges ought to do.

13From the standpoint of legal realism and its progeny, law is inherently indeterminate, allowing for a plurality of interpretations in any particular case, and making every judicial decision ultimately dependent on something extrinsic to the legal material involved. Thus, for critical legal theory, most legal doctrines are sufficiently porous and riddled with exceptions to allow a judge to decide cases according to his or her political convictions, thus in effect reducing law to politics [16]. For example, contract law consists of a series of rules and exceptions leaving enough room forjudges to construe the interplay between them so as to reach the politically desired result [17].

14According to the postmodern approach elaborated by Stanley Fish, on the other hand, law is ultimately reducible to rhetoric [18]. What judges must do, under this approach, is to use the materials of legal argumentation to arrive at a decision that appears to be legal rather than moral or political, and that appears consistent with prevailing doctrine, whether in fact it is or not. In other words, what vindicates a judicial decision is the persuasiveness of its rhetoric without regard to its actual consistency with other relevant decisions or to its actual consistency with other relevant decisions or to its substantive underpinnings. Needless to say, consistent with Fish's view there are as many "right" answers to hard cases as the rhetorical skills of judges could fathom.

15Dworkin's response to these views is that law is not reducible to politics or mere rhetoric, or even if it sometimes is, it ought not, and that it is possible for judges to insure that it is not. Specifically, Dworkin's claim against critical legal theory amounts to an assertion that law ought not be reducible to politics, and that it need not be, provided judges decide cases consistent with the principles associated with liberal egalitarian political philosophy. Again, as in Dworkin's arguments against the positivists, the force of his arguments against the critical legal theorists depends, in part, on whether appeal to relevant principles can lead ordinary judges or Hercules to the one right answer. It also depends, in part, on the validity of Dworkin's distinction between principle and policy, which will be explored more fully below. Indeed, for Dworkin law is fundamentally distinct from politics inasmuch as law unfolds in the realm of principle whereas policy operates in the realm of politics. Thus, if the distinction between principle and policy does not hold, then Dworkin's prescription that judges decide cases in conformity with liberal egalitarian principles would amount to no more than a claim that judges decide cases consistent with a particular brand of politics. And that would not contradict the critical legal theorists' contention that law is reducible to politics.

16Against postmodern theorists like Fish, Dworkin must demonstrate that legal interpretation is not reducible to mere rhetoric. Although examination of Dworkin's theory of interpretation will be postponed until Section III below, for it not to be reducible to rhetoric, there must a way to establish the right interpretation or the best interpretation. Moreover, since Dworkin is neither a strict textualist - i.e., he does not believe that the meaning of a legal text derives exclusively from the "plain meaning" of the words and phrases contained in it - nor an intentionalist - i.e., he does not believe that the meaning of a text can be established by ascertaining its author's intention - that means that he must be able to rely on a hermeneutic approach subject to intersubjective verification or approval.

17Both in the context of law as politics and in that of law as mere rhetoric, judicial decisionmaking looms as arbitrary. It is either a mere expression of power requiring no consistency, or an expression of rhetorical power providing a mere appearance of consistency. Dworkin's principle based approach is meant to counter the notion that judicial decicionmaking need in any way be arbitrary. Accordingly, Dworkin insists that judicial decisionmaking faithfully adhere to the principle of integrity which will be addressed in Section IV below. Because of the complexity of contemporary legal systems, the relevant principles cannot be applied mechanically to the legal texts submitted to judicial interpretation. What is at stake through the hermeneutic binding of principles to legal texts is the unity and coherence of the system of law. Adherence to the principle of integrity is supposed to guide ordinary judges or Hercules toward the right interpretation consistent with such unity and coherence. Therefore, whether or not the principle of integrity imposes significant interpretive constraints on judges is an important factor for the success of Dworkin's hermeneutical undertaking.

18According to the law and economics movement lead by Richard Posner, law in general, and judicial interpretations in particular, ought to be geared to maximizing wealth I [19]. Thus, for example, if a common law judge must determine whether a manufacturer ought to be strictly liable for injuries caused by its products, or only liable in cases of negligence, the right answer is the one which would maximize wealth. In this example, this means that the judge should choose the alternative that is most efficient and least costly. If the risk of injury can be borne more economically and efficiently by the manufacturer, then strict liability is the right result. Otherwise, if it is more efficient to place some of the risk (either because it will lead to greater care or be cheaper to insure against) on those who may be injured, then the negligence standard would be called for. More generally, at least in principle, recourse to the wealth maximization standard, should lead judges to a single right answer consistent with the factual and normative presupposition of law and economics [20].

19In as much as law and economics allows for a single right answer in hard cases it seemingly poses a problem for Dworkin's theory. Indeed, even if positivism and legal realism and its progeny are wanting for failing to yield a single right answer, Dworkin's theory seems at best one among many that can remedy that shortcoming. If Posner's theory is as capable as Dworkin's to furnish a single right answer for hard cases, then why chose one over the other ? More broadly, if both theories provide a single right answer, but in each case a different one, then the problem of legitimacy that afflicts theories that do not yield a single right answer appears to be replicated at a different level. Not only Posner's and Dworkin's theory lead to a different single right answer but so do, most likely, many others based on different religious, ideological, political or moral visions. If that is true, then the question becomes whether a judicial choice among the various visions that respectively lend support to a different right answer would be any more legitimate than the positivist's discretion, the critical legal theorist's political choice, or the postmodern theorist's rhetorical choice. And prima facie at least, so long as there is no consensus within the polity, all the above mentioned alternatives would equally seem to lack legitimacy.

20Dworkin seeks to differentiate his theory from Posner's, through reliance on the distinction between principle and policy. As Dworkin specifies, "[arguments of principle are arguments intended to establish an individual right; arguments of policy are arguments intended to establish a collective goal" [21]. Furthermore, based on that distinction, which is essentially a formal one [22], one may generally conceive of lawmaking as the pursuit of some collective goal through an allocation of certain rights (and correlative duties), and of adjudication as a matter of principle in as much as it is focused on interpretation of laws in terms of the specific rights and correlative duties which they carve out for the parties before the court (and through the force of precedent for similarly situated parties). In short, assuming a common set a political and moral values and a commonly shared set of objectives, policy-making will involve pursuing these as collective goals, whereas lawmaking, legal interpretation and adjudication will consist in turning these into principles and in sorting out the particular individual rights and duties that these principles warrant.

21Does this distinction between principle and policy sufficiently differentiate Dworkin's theory from Posner's to lend support to the conclusion that even if law and economics leads to a single answer in hard cases that answer is illegitimate because it is based on policy rather than principle ? Or, in other words, because it completely subordinates individual rights to collective goals ?

22The answer could be in the affirmative if Dworkin's theory of principle and rights were Kantian or deontological in nature. Under a Kantian view, based on the priority of the right over the good, the equal concern and respect principle would preclude treating persons merely as means. The goal of wealth maximization pursued by law and economics does appear to put its conception of the good above the right, and it arguably always treats the individual as a means (to the greatest possible collective wealth) rather than as an end in him or herself.

23Dworkin, however, does not adhere to a deontological conception of principle or right. Indeed, he declares that a "principle might have to yield to ...an urgent policy with which it competes on particular facts" [23]. Accordingly, far from being lexically prior to goods, rights are to be given a weight which is measured by their "power to withstand ...competition" with policy goals [24]. Dworkin insists that "it follows from the definition of a right that it cannot be outweighed by all social goals" [25] What this amounts to, is that in Dworkin's view, a right is not simply reducible to a goal or policy so that it would automatically have to yield to a marginally weightier goal or policy.

24This requirement is ultimately very weak. It means that a right can be overridden by important policy considerations, but not by trivial ones. In the absence of any specific quantative standards, it would seem that consistent adherence to lawmaking and adjudication of legal disputes in the language of principle and in the form of rights would satisfy Dworkin's minimum requirements. Moreover, to the extent that Posner promotes his wealth maximization standard within the framework of common law adjudication which results in an allocation of rights and duties, there seems to be no reason for it - or a position that would be in all substantive respects equivalent - not to satisfy Dworkin's minimum requirements. Indeed, Dworkin himself argues that a consequentialist theory such as rule utilitarianism is consistent with principle based rights [26].

25Unlike act utilitarianism which requires that every act, including every adjudication, contribute to maximizing utilities, rule utilitarianism maintains that, overall, maximizing utilities is better achieved by adherence to rules even if certain individual applications of such rules do not themselves increase utilities. Thus, whereas in act utilitarianism all principles and rights are ultimately reducible to policy, that is not the case for rule utilitarianism for which the relevant moral criterion is whether particular rules are utility maximizing and not whether every grant of a right pursuant to such rule is. Since law and economics is consequentialist much like utilitarianism - the difference being that the goal of law and economics is to maximize wealth whereas that of utilitarianism is to maximize utilities - both can be promoted through a rule based approach. As Posner's objective is to have common law judges articulate rules and carve out rights that will promote wealth maximization, his approach is very much in the spirit of rule utilitarianism.

26To the extent that law and economics is rule oriented rather than act oriented, it cannot be distinguished sufficiently from Dworkin's theory in terms of the dichotomy between principle and policy. Instead, the two theories differ on substantive grounds : Dworkin is an egalitarian and Posner a libertarian. Therefore, unless libertarianism can be proven to be inconsistent with the equal concern and respect principle - which does not seem prima facie to be the case - then Dworkin's single right answer thesis depends for its validity on proof that the egalitarian vision is superior to its libertarian counterpart. Otherwise, both Dworkin's egalitarian answers and Posner's libertarian ones would have to count as right answers. Whether in the end, Dworkin makes a successful case for the superiority of his egalitarian vision remains to be seen, and cannot be thoroughly considered without further inquiry into Dworkin's reconstructive project and into his hermeneutics.

ill. Counterfactual Reconstruction and Dworkin's Theory of Interpretation

27As already mentioned, Dworkin concedes that ordinary judges may sometimes be incapable of coming up with the right answer in hard cases, and acknowledges that legal interpretation is neither immediate nor transparent in complex legal systems [27]. These factors need not frustrate the one right answer thesis or the one law principle, however, if a persuasive theoretical justification can be provided for them. Dworkin seeks to achieve this by rising above the murky empirical trail left by everyday law and adjudication through counterfactual reconstruction centered around Hercules, the all-seeing and all-knowing superhuman judge and through a hermeneutical approach best suited to reveal the unity and coherence of a system of law as best as possible.

28Reconstructive theory based on counterfactuals [28] can fill the gap left by empirical analysis and provide a systematic and coherent framework for analysis and evaluation. Counterfactual reconstruction, which has been used frequently in philosophy, starts from existing intuitions, institutions and practices, and supplements and organizes them into a coherent whole with the help of counterfactual devices [29].

29The use of counterfactual s demarcates a gap between the reconstructed picture and the prevailing state of affairs — in Dworkin's case, between Hercules and ordinary judges. That gap, in turn, provides space for either perfection or critique. For example, the picture of a pristine market economy with evenly matched competitors, perfect information, and no transaction costs is a counterfactual which can be either used to legitimate existing markets in spite of their imperfections as worthy approximations that come closer than plausible alternatives to the relevant counterfactual. Or, such counterfactual can be used to critique existing markets as inevitably falling short with respect to the qualities, equilibrium and fairness that endow the counterfactual market with its normative force and appeal.

30Dworkin's endeavors at counterfactual reconstruction centered around Hercules involve both perfection and critique, but concentrate mainly on perfection, thus largely vindicating the status quo [30]. In other words, Hercules is supposed to illustrate how a perfected version of the system of justice structured like that of the United States could validate Dworkin's one right answer thesis and the one law principle. Under this perspective, moreover, an actual system of justice such as that of the United States and ordinary judges operating within that system have the potential of reaching the closest possible approximation to the relevant counterfactual ideal.

31Consistent with this analysis, an evaluation of Dworkin's counterfactual reconstruction must revolve around two key questions. First, does the counterfactual reconstruction in which Hercules is the main protagonist mesh with the fundamental premises that underly Dworkin's project, namely a pluralist society and adherence to the equal concern and respect principle ? And, second, assuming an affirmative answer to the first question, does reviewof actual practices lend support to the best approximation conclusion or does it rather offer a better justification for using Hercules for purposes of a systematic critique of current practices ? If the latter, then Dworkin's counterfactual reconstruction would in the end unwittingly buttress the conclusion that there is no single right answer in real life hard cases or unity and coherence in real life complex legal systems.

32Before tackling these questions, it is necessary briefly to consider Dworkin's theory of interpretation and the place of counterfactual reconstruction within it. For Dworkin, interpretation itself is a reconstructive endeavor aimed at grasping that which is interpreted (e.g., an institution or a practice) "in its best light" and then to "restructure it" in terms of the "meaning" that must be imposed on it for it to emerge in its best light [31]. Law, in turn, is a social practice providing for justified uses of "collective power against individual citizens or groups" [32]. In other words, taken as a whole, law is an interpretive practice designed to determine when and where the use of coercive collective power is justified, and to deploy such power consistent with its best possible justification. Ideally, all involved in law as a practice, including constitution makers, legislators, judges, law enforcers and citizens would engage in the interpretive construction and reconstruction of law to make it the best possible, and hence channel it to its most justified uses.

33Since the legitimacy and acceptability of law's coercive power depends on whether it comports with justice and fairness [33], law's best interpretation is one that is just and fair. But because there are disagreements over what is fair and just, and because views concerning these change over time, legal interpreters must strive to cast justice and fairness in their best light and to weave a historical narrative that displays the common threads between past and present accounts of these concepts while properly accounting for significant differences [34].

34It is easy to see how the one law principle and the one right answer thesis fit in Dworkin's conception of legal interpretation as a reconstructive endeavor designed to reveal the unity and coherence of law in its best possible light, as consistent with justice, fairness and the equal concern and respect principle. This would be particularly true if counterfactual reconstruction could do away with laws and legal interpretations that could not possibly become integrated within the one law principle. For example, the American Constitution condoned slavery until the adoption of the Post- Civil War Amendments in the 1860's [35] and many American states had laws that institutionalized and preserved the institution of slavery. It would therefore have been impossible for someone in 1850 to reconstruct American law as an interpretive practice that comports with the equal concern and respect principle or with any plausible version of a liberal theory of justice or fairness. Counterfactually, however, the American legal system could be imagined in 1850 as if it had no constitutional provisions or laws legalizing slavery. But in such case, the counterfactual exercise could only serve a critical function - i.e., to highlight the illegitimacy and injustice of the then prevailing legal regime - but not a perfecting function, for no imaginable interpretation of slavery laws could cast them as instances of justifiable coercion consistent with Dworkin's or any other liberal's fundamental moral premises.

35Whereas the example of slavery is a dramatic one which would call on a judge to refuse to enforce the law or to resign rather than contributing to an unjust enterprise [36], it is much less clear whether counterfactual reconstruction should integrate or do away with laws that do not fit within a liberal egalitarian vision, but that are not inherently immoral. Suppose, for example, that a constitutional amendment had enshrined the U.S. Supreme Court decision in Lochner v. New York [37]which held unconstitutional a state law imposing a limit on the number of working hours of certain employees on the grounds that it violated freedom of contract and property rights enshrined in the Due Process Clause [38]. Pursuant to such a constitutional amendment, no minimum wage law or maximum hours law would be constitutional. Now, whereas the legal regime circumscribed by such constitutional amendment would violate the egalitarian conception of equal concern and respect, it would be consistent with its libertarian counterpart [39]. Should an egalitarian counterfactual reconstructor ignore the amendment and the legal regime that flows from it ? Or should she take them into account and elaborate the best conceivable depiction of law in a system without minimum wage or maximum hours protection ?

36The answers to these questions are crucial, for depending on them one of two radically different counterfactual exercises would be called for. If the reconstructive exercise is only to include those aspects of an actual legal practice that comport with a unified complete legal system that would best express the moral precepts and objectives of a given vision, then counterfactual reconstruction would yield a purely Utopian ideal. Of course, in the context of such an ideal the one law principle and the one single answer for hard cases - i.e., hard cases in the real world, but not in the ideal world - would be easy to achieve. They would only depend on how much of the real world legal system would have to be discarded in the counterfactual reconstruction. Moreover, even if in such ideal context there remained difficult interpretive questions in concrete cases, Hercules would be able to resolve them. In its most extreme form, therefore, this kind of counterfactual reconstruction would be equivalent to a God given perfect and unified system of law (which in some limited respects may be approximated by some aspects of existing legal systems) interpreted by prophets who are graced with divine understanding. Such a counterfactual reconstruction, however, underscores above all that the unity and coherence it produces is humanly impossible to achieve. Accordingly, it serves as an exclusively critical counterfactual illustrating that the one law principle and the unified and coherent legal system that Dworkin seeks are completely beyond human reach.

37If, on the other hand, the counterfactual reconstructor is to take the legal system as she finds it, and confine her reconstructive endeavors to unclear or open-ended issues, then it seems highly unlikely that her interpretive work would lead to unity or coherence. For example, filling gaps in a libertarian legal system with egalitarian solutions would result in a system that has neither a libertarian or an egalitarian unity or coherence. Moreover, a counterfactual reconstruction along those lines would presumably highlight above all that there are at least two plausible answers, one libertarian and the other egalitarian, in hard cases.

38Dworkin's own position falls somewhat between these two extremes.

39His approach is best suited for counterfactual reconstruction of the common law. Since the common law develops pursuant to a gradual process of accretion based on accumulation of relevant precedents, and since existing precedents typically confine the range of interpretive choice but rarely predetermine the outcome of any case that is not identical to one already decided, both actual judges and Hercules have a vast amount of room within which to maneuver. For example, judges can privilege certain precedents over others, by according the former greater weight. They can choose among different lines of precedent, and on occasion they can even overrule precedents. Moreover, broadly phrased constitutional provisions, such as the Due Process Clause [40] or the Equal Protection Clause [41], are remarkably amenable to a common law approach. Thus, for example, the Lochner doctrine mentioned above was overruled and abandoned by the Supreme Court in the 1930's [42], and now minimum wage and maximum hours legislation is constitutional in the United States. Finally, even statutes are to some extent amenable to a common law approach as can be illustrated by reference to the above example of a law prohibiting the use of vehicles in public parks [43]. In that example, the question was whether a motorized wheelchair came within the prohibition. Assuming that a judge decides that it does not, then that decision would constitute a relevant precedent in a subsequent case dealing with the question of whether an ambulance entering a public park to take a park user who has suffered an injury to the hospital comes within the prohibition.

40The common law's open ended approach makes it highly likely both that there will be more than one plausible answer from which to choose in hard cases and that one such answer will comport with the aims of an egalitarian counterfactual reconstructor. In other words, it is possible, at least in theory, that factually there are several right answers ("right" according to the conventions of common law practice), but that counterfactually there is only one (from the standpoint of liberal egalitarianism). And, if this is so, then Dworkinian counterfactual reconstruction would have to do much more with perfection of the status quo than with any radical critique of it.

41Dworkin's conception of Hercules is consistent with this last conclusion. Dworkin does not endow Hercules with divine or prophetic attributes, but only with enhanced and expanded human capacities that clearly exceed those of any ordinary judge [44]. Accordingly, the contrast between Hercules and an ordinary judge is somewhat analogous to that between a mathematical genius and an ordinary person with mediocre mathematical skills. Hercules, therefore, can discover the right answers and unity and coherence of an existing legal system through a process of rational completion and perfection.

42Consistent with these observations, the inquiry concerning whether Dworkin's counterfactual conclusion actually mesh with his premises must be set against the background assumption that the current American legal system and its prevailing practices are by and large compatible with Dworkin's liberal egalitarian vision. To be sure, some laws and some judicial decisions may not be so compatible and are thus fair targets for counterfactual critique. But for the main part, the prevailing constitutional and legal regime should be taken as needing counterfactual perfection, but no counterfactual overhaul. That at least seems to be Dworkin's assumption and it warrants further inquiry in the course of evaluating his theory.

43Before turning to that task, there remains one important point relating to Dworkin's theory of interpretation that must be briefly addressed. Dworkin analogizes legal interpretation to literary interpretation. Just as a literary critic ought to strive for the best possible interpretation of a novel, so too a judge should aim to provide (and Hercules will succeed in providing) the best possible interpretation of the law he is called upon to apply [45]. In both cases, the goal is to discover the "best fit", though Dworkin acknowledges that the criteria are different : in literature, the criteria are aesthetic whereas in law they are found in the realm of political morality [46].

44This analogy is unfortunate for it is either false or it ultimately undermines rather than strengthen Dworkin's thesis about law. There is indeed no general consensus about aesthetics or taste, and there are many competing aesthetic theories, which would undoubtedly yield different and often incompatible "best interpretations" of the same work of art. Marxist aesthetics, for example are different from psychoanalytic aesthetics, formal aesthetics or classical aesthetics, and are likely to yield a different interpretation of a particular novel than these other theories. While interpretations from the standpoint of different aesthetics may overlap and be to some extent mutually compatible, they are bound to remain at least in part incon- gruent or incompatible. Accordingly, the notion of a "best interpretation" only makes sense within the ambit of a particular contestable aesthetic theory.

45It may be that law is not analogous, and that a legal system can only be unified and coherent, consistent with the one law principle, and amenable to the one right answer thesis, if it is premised on the equal concern and respect principle. In that case Dworkin's counterfactual reconstruction may well provide the "best interpretation" of law. Or it may be that the analogy between art and law does hold and that Dworkin's counterfactual reconstruction is at most compelling for liberal egalitarians, but not for libertarians, contractarians, ultilitarians, or any others who subscribe to the equal concern and respect principle. But in the latter case, Dworkin's interpretive enterprise seems incompatible with pluralism.

IV. Evaluating Dworkin's Interpretive Enterprise : Moving from Concept to Conception and Law as Integrity

46An important reason for Dworkin's interpretive turn is the need to forge coherent links between past, present and future. Circumstances change, and it is impossible to preserve the unity or continuity of law without such links. That is why, as we have seen, Dworkin rejects purely backward- looking conventionalism and purely forward-looking pragmatism [47]. Moreover, such links cannot be established and maintained by mechanical applications of the relevant principles. What is needed is the construction of a narrative that endeavors to capture identity and continuity amidst a continuous flow of change. The challenge for someone like Dworkin who seeks to account for the unity and continuity of law in changing times is analogous to that which confronts the individual in the context of Paul Ricoeur's distinction between the self as sameness and the self as self recognition through differences [48]. Consistent with Ricoeur's distinction, if I contemplate who I am during a short interval, I am likely to conclude that I am the same at the end of the interval that at the beginning. If, on the other hand, I am asked what makes me the same individual that I was very long ago when I was a child, it is obvious that I no longer look the same, think the same, etc. What accounts for my continuing sense of identity, instead, is that I have constructed a narrative that integrates the successive periods of my life and the different experiences that have marked each of them into a coherent whole in which a sense of identity rises above all differences. Clearly, this latter account requires interpretive reconstruction much like does Dworkin's project to find unity and coherence in the life of the law.

47There is another powerful reason for Dworkin's interpretive enterprise : the rule of law. It is not only that the law invites interpretive reconstruction; it actually requires it. Adherence to the rule of law depends on predictability and fairness. The rule of law demands that citizens be appraised ex ante of the legal obligations for which they will be held accountable. Moreover, the rule of law should endeavor to insure that laws are fair. Although these two goals predictability and fairness, are sometimes in conflict, at the very least the rule of law should strive as best as possible to honor them and to reconcile them. And in order to achieve this, it is necessary to an engage in an interpretive reconstruction to that binds together past, present, and future.

48One way to resolve conflicts between predictability and fairness is through recourse to principle. If a predictable result is likely to be unfair, then a principled and fair result would be warranted. This would be either because in such a case achieving fairness would be more important than honoring settled expectations, or because a decision consistent with the principle at stake ought to have been expected even if it was not actually expected. For example, in its 1954 decision in Brown v. Board of Education [49], the US Supreme Court decided that racial segregation in public school was in violation of constitutional equality rights notwithstanding that in its 1896 Plessy v. Ferguson decision [50], the court held that state mandated racial segregation was consistent with constitutional equality. Arguably, by the 1950's it was not morally tenable to insist that constitutional equality and the principle of equal concern and respect were compatible with forced racial segregation. Accordingly, even if Brown took people by surprise, they had no right to expect continued adherence to Plessy.

49It is obvious, in retrospect, that Brown and its progeny provide a better interpretation of constitutional equality in the United States than does Plessy. Already the dissenting justices in the closely divided decision in Plessy regarded the majority's upholding of mandated racial segregation as morally reprehensible [51], and today no one would argue that such segregation could be reconciled with the equal concern and respect principle. In short, there is at present a consensus that Brown was rightly decided, and to extent that such consensus was lacking in 1954, Hercules should have been able to anticipate it, thus boosting Dworkin's interpretative theory.

50Brown is no longer a hard case, if it ever was one for anyone who genuinely adhered to the equal concern and respect principle. But what about harder cases, such as those involving affirmative action or minimum welfare rights, or minority group rights, over which there is currently considerable public disagreement ? Is there a right answer for these latter cases ? And will such answer lead to a future consensus ? Or, are these cases inherently different, in turn raising serous doubts about Dworkin's theory ?

51In order to be in a better position to answer these questions, it is first necessary to focus briefly on the distinction that Dworkin draws between "concept" and "conception", and on the interpretive consequences that he draws from his conception of law as "integrity".

52Some concepts including many of those such as liberty or equality which figure prominently in constitutional law are essentially contested ones [52]. Contested concepts are characterized by the fact that they find expression in competing conceptions that may be mutually inconsistent. For example, as already noted, the concept of equality encompasses rival conceptions such as the egalitarian conception and the libertarian one. Furthermore, some conceptions of equality promote the principle of equality of opportunity while others rely on the principle of equality of result. In most cases, implementation of one of these principles in inconsistent with implementation of the other. Thus, an equal opportunity to compete for a position would be inconsistent with an equal entitlement to that position [53].

53Dworkin asserts that the American Constitution enshrines the concepts of liberty and equality among others [54], but specifies that it does not impose any particular conception of these concepts [55]. Yet judicial interpretation and elaboration of these concepts cannot be carried out, at least in hard cases, without recourse to some particular conception of such concepts. For example, whether affirmative action involving preferential treatment in education or employment comports with constitutional equality depends on whether one adheres to a conception of equality predicated on equal treatement or one that prescribes equality of result [56]. Dorkwin acknowledges that there are cases which cannot be decided without resorting to a particular conception of a constitutionalized concept, and suggests that Hercules must select the conception that leads to the most "satisfactory elaboration" of the constitutionalized concept at stake [57].

54The combination of Dworkin's assertion that the constitution enshrines certain concepts, but not particular conceptions of these, with his observation that cogent judicial interpretation must at times rely on a particular conception of the constitutionalized concept at stake seems to undermine his one right answer thesis. Indeed, as already pointed out, the constitutionality of affirmative action under the Equal Protection Clause of the American Constitution cannot be determined without recourse to some conception or other of equality. Moreover, whereas some such conceptions are compatible with the promotion of affirmative action, others are not. Under Dworkin's egaliratian conception of equality, affirmative action is constitutional [58]; under libertarian equality, however, it is not [59]. In other words, under Dworkin's conception of the equal concern and respect principle affirmative action is perfectly legitimate; but under a libertarian conception of that same principle, affirmative action undermines rather than bolster equality. For Dworkin, the principle in question requires treatment as an equal but not equal treatment. Consistent with this, whereas invidious discrimination against members of oppressed minority groups involves a clear breach of duty to treat all fellow humans as equals, preferential treatment of such minorities for purposes of redressing past wrongs, or of insuring that they enjoy their fair share of society's benefits, does not imply any disregard toward any one else's worth or dignity [60]. For the libertarian, in contrast, the principle of equal concern and respect prescribes adherence to the principle of equal opportunity when allocating scarce employment positions or scarce places to study at the university. This means that, in this context at least, treatment as an equal entails equal treatment, and that anyone who is deprived of an equal opportunity to compete - at least so long as he or she bears no individual responsibility for the disadvantages of those designed to benefit from affirmative action - is not genuinely treated as an equal.

55The mere fact that a concept may be constitutionalized but that it may not be judicially interpreted or applied without reliance on some among many plausible competing conceptions of it seems to clearly undermine the validity of the one right answer thesis. Moreover, this conclusion holds for all contested concepts and not only for the most abstract ones. Thus, for example, the Canadian Constitution specifically provides for affirmative action [61]I, in contrast to that of the United States. There are, however, many competing conceptions of the concept of affirmative action even if one assumes that that concept is entirely subsumed under the concept (or under certain conceptions) of equality. There are communitarian and individualistic conceptions, compensatory and distributive conceptions, etc., which make it inevitable that there will be hard cases in which judges will have to make choices among plausible competing conceptions of affirmative action. More generally, since no constitution for a complex democratic polity can avoid constitutionalizing certain essentially contested concepts, reliance on the distinction between concept and conception undermines rather than lends support to the one right answer thesis.

56Consistent with Dworkin's systematic counterfactual reconstructive project and with the one law principle, however, the distinction between concept and conception should not be taken in isolation, out of the comprehensive interpretive context in which it is meant to be embedded. Specifically, whereas the distinction between concept and conception may not lead to a single answer in hard cases, it may do so when placed within the ambit of law as integrity. Indeed, the interpretive task of Hercules is not confined to choosing among competing conceptions, but is much broader. It includes reconciling past, present and future and weaving them together into a coherent narrative, giving its due to justice, fairness and due process, and reconciling the unity of the legal system taken as a whole with its manifold diversity. What is supposed to guide Hercules in this comprehensive endeavor, in turn, is the principle of integrity, which now warrants a closer look.

57An elaborated by Dworkin the principle of integrity is a multifaceted one. It has a positive as well as a negative role, a legislative as well as a judicial dimension [62], and it can operate at different levels, including more abstract and more concrete ones [63]. In a nutshell, integrity requires consistent adherence to moral principle, and accordingly its negative role in counterfactualreconstruction is obvious : unprincipled, purely political - in the sense of advancing narrow partisan political interests - or deceitful handling of legislative or judicial responsibilities evince a lack of integrity and are ipso facto illegitimate. This negative role, moreover, is an important one in counterfactual reconstruction as critique, providing a principled basis for repudiating certain legislative and judicial outcomes as illegitimate.

58The positive role of integrity, however, is much more difficult to grasp.Dworkin asserts that

59

We have two principles of political integrity : a legislative principle, which asks lawmakers to try to make the total set of laws morally coherent, and an adjucative principle, which instructs that the law be seen as coherent in that way, so far as possible. [64]

60We assume that the legislative principle enunciated by Dworkin is transparent enough to provide a workable positive criterion of integrity [65]- But what about integrity as an adjudicative principle which requires interpreting law as morally coherent "so far as possible"? Is that coherent or determinate enough to endow integrity as a positive force with a sufficiently fixed or commonly accepted workable content ?

61To narrow the inquiry, I will assume that we are dealing with a legal system that generally comports with the equal concern and respect principle broadly understood, but that nonetheless encompasses broad ideological disagreements, and a wide array of legislation and adjudications that cannot be reconciled under a single conception of the above essentially contested principle. Thus, the legal system in question would not include legalized slavery or apartheid as the American legal system did in the past, but it would include some legislation and adjudications compatible with a libertarian conception of the equal concern and respect principle but not with its egalitarian counterpart, and vice versa. The question then becomes whether Hercules can rise above the conflict among conceptions through positive deployment of the principle of adjudicative integrity.

62Dworkin argues that integrity is needed in earthly legal systems because these cannot fully reconcile justice and fairness [66]. In Dworkin's view.

63

Justice .... is a matter of the right outcome of the political system : the right distribution of goods, opportunities and other resources. Fairness is a matter of the right structure for that system, the system that distributes influence over political decisions in the right way [67].

64In other words, in actual polities distributive justice and a fair apportionment of powers do not always mesh. For example, it may be fair to have legislative majorities determine legislative outcomes, but there may be cases where such majorities enact unjust laws. A judge may not simply disregard this, as she should not ignore the tension between law's predictability and its fairness, or procedural due process protections - i.e., "the right procedures for enforcing rules and regulations the system has produced" [68] - even if these sometimes stand in the way of fairness or justice.

65In the best of cases, Hercules would rely on the principle of integrity which requires a principled and judicious attempt to give justice, fairness, due process, precedent, predictability and justified expectations their due in a coherent reconstruction of law that vindicates the equal concern and respect principle as best as possible. Also, in the best of cases, Hercules would be able to overcome the conflict of conceptions by means of the interpretive work guided by the principle of integrity. Thus, for example, if affirmative action were constitutional under an egalitarian conception of equality, but not under a libertarian one, Hercules would be able to settle on one of these by working through the interpretive implications of the principle of integrity. In that case, moreover, both the one law principle and the one right answer thesis would be vindicated by combining reliance on the distinction between concept and conception and on the interpretive work called for by the principle of integrity.

66This best of cases, however, cannot be more than an unwarranted leap of faith, even for Hercules, and even in the realm of cogent counterfactual reconstruction. The reason for this, moreover, is that the principle of integrity as elaborated by Dworkin lacks sufficient positive substantive content to suggest any particular determinate outcome in hard cases. Alternatively, if the principle of integrity is to be understood in procedural terms - i.e., if judges must go through a checklist including testing for consistency, principled readings of precedents, and considering all arguments presented on relevant issues of justice, fairness and due process - it also fails to provide sufficient guidance to settle on a single determinate outcome for hard cases.

67The principle of integrity's lack of sufficient substantive positive content becomes apparent if one seeks to reconcile justice and fairness in a hard case. Such reconciliation requires finding the right equilibrium betweenjust outcomes and just or fair institutions when the two conflict. But in order to do so in a hard case, that is a case involving conflicting conceptions of what should count as a just outcome and possibly conflicting conceptions of what constitutes a fair apportionment of institutional power, integrity would have to provide criteria for sorting out substantive divergences concerning just outcomes, fair institutions, and a proper balance between the two. Suppose, for instance that by a bare majority, a legislature enacts a law that requires providing preferential treatment to members of a racial minority in public employment and that a non-minority individual who was denied public employment because of this law sues for a violation of his constitutional equality rights. Suppose further that under a libertarian conception of equality - i.e., under libertarian justice - any preferential treatment would be unjust, but that under an egalitarian conception such preferential treatment would be just so long as it promoted greater equality of result. Suppose finally, that there is a judicial precedent interpreting constitutional equality consistent with the libertarian conception in a non-affirmative action case and that the challenged preferential treatment law would not have been endorsed by a majority within the legislature but for substantial lobbying by civil rights organizations. How could the principle of integrity guide a judge to a single right answer under these circumstances ? Does integrity help resolve the conflict between conceptions ? Does it help determine whether the institutional setting was truly fair ? Or what weight ought to be given for purposes of determining the right equilibrium between libertarian justice and interest group driven democratic lawmaking ? Also, what weight should an egalitarian judge give to a libertarian precedent ?

68It seems clear that beyond imposing the procedural requirements that a judge be principled, fair, open-minded, morally committed and diligent, the principle of integrity does not provide guidance in answering any of the above questions. Not only would a principled egalitarian judge with integrity likely decide the case differently than a similarly principled libertarian judge, but even a moderate egalitarian might reach a different conclusion than a radical one. Indeed, whereas a moderate egalitarian may with integrity provide significant weight to the libertarian precedent, the radical egalitarian might well feel that it would betray her commitment to justice to adhere to contrary and unpersuasive precedent.

69Integrity as elaborated by Dworkin offers neither qualitative norms nor quantitive standards to sort through the conflicting elements pulling in different directions in hard cases. Since integrity cannot settle conflicts among competing conceptions, draw cogent boundaries between justice and fairness or assign them measurable relative weights; or determine which precedents should be followed when multiple paths are open, or to what extent should plausible precedents be followed; there are bound to be many interpretations rather than one for hard cases. Accordingly, the Herculean interpretive enterprise cannot possibly lead to a single "best fit", but rather to several different plausible fits depending on the contested or contestable substantive normative commitments involved. Thus, there may be a best libertarian interpretation of the constitutionality of affirmative action and a different and conflicting best egalitarian interpretation of it. In the last analysis, therefore, the analogy between legal interpretation and aesthetic interpretation does hold as Dworkin asserts. Contrary to Dworkin's analysis, however, there are as many valid legal interpretations as there as different conceptions of justice and of fairness consistent with the equal concern and respect principle, just as they are as many "best" aesthetic interpretations as there are different plausible aesthetic theories.

v. The Pluralist Case Against Dworkin's Theory

70The equal concern and respect principle can either be conceived in monistic or in pluralistic terms. Libertarian, utilitarian and egalitarian conceptions of that principle are all monistic in nature. They all approach the equal concern and respect principle from a single unified perspective : libertari- anism from that of equal liberty; utilitarianism, from that of each person's happiness being ascribed the same value for purposes of the pursuit of the greatest happiness of the greatest number; and egalitarianism, from that of an operative standard of material equality, be it equality of resources, equality of result, or equal satisfaction of every person's basic needs. All these monistic conceptions are encompassed, moreover, within the broader conception of liberal individualism. Now, consistent with the preceding analysis, to the extent that libertarianism and egalitarianism each lead to different answers in hard cases, proponents of liberal individualism cannot secure the one law principle or the one right answer for every hard case. And this holds even for Hercules, since he does not possess any actual or counterfactual means for choosing among the competing conceptions of liberal individualism.

71This problem encountered in the context of liberal individualism becomes even more acute in that of a pluralist conception of the equal concern and respect principle. Such a pluralist conception is preferable to its monistic counterparts, including those subsumed under liberal individu- alism,because it allows for a more systematic and more comprehensive realization of the equal concern and respect principle's requirement to treat every person as an equal. Indeed, whereas all versions of liberal individualism treat every person as an equal in some respect, pluralism seeks to do so in all respects, including in respect to every person's perspective and conception of the good. This means that not only people but also, at least prima facie, their views should be treated as equal to one another under the equal concern and respect principle. This in turn, would seem to greatly multiply the number of different conceptions in relation to which hard cases may be interpreted, thus rendering Dworkin's one law principle and one right answer thesis even more problematic.

72Upon closer examination, it becomes apparent that the problem is not so much a quantitative one but rather a qualitative one, or, in other words, not so much a problem regarding the number of competing conceptions of the good within the polity, but rather a problem concerning how to reconcile them, or to sort through them, in order to resolve hard cases. In other to further explore this subject it is necessary to briefly refer to the rudiments of the pluralist conception.

73In societies such as those typical of Western constitutional democracies in which the citizenry divides among several competing conceptions of the good - i.e, societies that are "pluralistic-in-fact" the best way to fulfill the demands of the equal concern and respect principle is arguably through adoption of "pluralism-as-norm," or, in other words, through commitment to "comprehensive pluralism" [69] Pursuant to comprehensive pluralism, each conception of the good held by one or more persons within the polity should be prima facie entitled to equal concern and respect. This prima facie presumption is, however, rebuttable, as implementation of certain conceptions of the good may impede or frustrate the realization of others. For example, vindication of the normative prescriptions of a crusading religion commanding elimination of the infidel would be plainly incompatible with other religious or secular conception of the good.

74To deal with such conflicts, comprehensive pluralism must mediate between conceptions of the good and seek to insure that pursuit of any such conception should not frustrate the opportunity to pursue other such conceptions. Consistent with this, although each conception of the good has a claim to being accepted on its own terms, comprehensive pluralism prescribes that conceptions of the good only be accepted on its own terms. For example, the above mentioned crusading religion cannot be accepted on its own terms, but it ought to be accepted to the extent that its other prescriptions can be severed from those requiring violence against infidels. More generally, the norms prescribed by particular conceptions of the good, such as those that relate to religions, cultural or national groups, liberal individualists, communitarians, alternative lifestyle proponents, etc., can be characterized as "first-order norms". In contrast, the norms emanating from the pluralist conception of the equal concern and respect principle, which prescribe how to mediate among competing first-order norms, and how to sort out among the latter those that may be openly pursued and to what extent, can be referred to as "second-order norms". In short, comprehensive pluralism prescribes protecting as great a number of first-order norms as can be encompassed within the social, moral, political and legal space carved out by second-order norms.

75Within the framework of comprehensive pluralism, the interpretive task is both vast and varied. It involves subjecting first-order norms to second- order norms, mediating among competing first-order norms, and seeking to enlarge the intersubjective stage to accommodate as many conceptions of the good as much as possible. This interpretive task involves a dynamic process of confrontation between certain constant principles and an array of constantly evolving variables, in search of a fluid and broadly encompassing interplay. This interpretive task, moreover, must be apportioned between morals, law and politics, envisioned as continuous, overlapping, and yet distinct domains. Finally, this interpretive task, whether applied across domains — to apportion tasks among them in view of current problems or needs - or whether applied exclusively within the realm of law, must be viewed as dialectical and dialogical rather than as linear. The proper metaphor for this interpretive task, therefore, is not the Dworkin's chain novel, but dialogue and conflict mediation geared to accommodation, persuasion and compromise.

76In the last analysis, not only is the spectrum of legitimate positions recognized by comprehensive pluralism much broader than that circumscribed by Dworkin's liberal individualism, but the interpretive endeavors it calls for are much more varied and complex the an those contemplated by Dworkin. Although Hercules could certainly carry out certain of these endeavors, such as evaluation of first-order norms from the standpoint of second-order norms, in ways that would lead to a single right answer, this would not be the case, even counterfactually, for others.

77Two important examples can be invoked to buttress this last point. The first of these concerns the issue of membership. The overriding concern of comprehensive pluralism is to strive to achieve reconciliation between self and other. For that to be possible, it is necessary to settle questions of membership, and that is not possible in certain hard cases. One such case concerns abortion. For comprehensive pluralism to deploy its second-order norms and to attempt to reconcile first-order norms it must take into account all the members that belong to its moral universe. The legitimacy of abortion ultimately depends, however, on the question of membership of the unborn fetus in the relevant moral universe. Under some views, the fetus possesses attributes of personhood and hence deserves membership at least for purposes of determining the question of the legitimacy of its elimination. Under other views, membership attaches only at birth, and abortion is consequently a matter that concerns the fundamental rights of women. Comprehensive pluralism depends on a reasonable consensus on membership and hence lacks criteria to resolve the issue in the context of abortion. [70] Accordingly, no judge, whether merely human or Herculean, can arrive at the right answer in the case of abortion.

78The second example concerns the clash between two sets of first-order norms of equal importance to their respective proponents in cases in which none of these norms contravenes the dictates of second-order norms. This would be the case in a conflict between atheists and believers in God concerning public education in a polity in which neither the constitution nor infra-constitutional laws offer clear guidance on the issue. In such a case, not only is there is no right answer, but it is preferable that more than one answer be acknowledged to be legitimate. The reason for this is that from the standpoint of a pluralist ethos, further dialogue and a message of inclusiveness are much more important under such circumstances than a clear-cut decision. To be sure, as a practical matter a judicial decision may be unavoidable. But the impact of such decision could be softened through publication of dissenting opinions emphasizing the strengths and worthy aspects of the losers' position, and through dissemination of the jurisprudential insight that there are cases which must be decided notwithstanding thatthere is no one right way to decide them.

79In conclusion, not only does Dworkin's thesis fall short in terms of his liberal individualist premises. But also, it ought to fail from the standpoint of the more inclusive conception of the principle of equal concern and respect that flows from the normative vision of comprehensive pluralism.