before him for decision?’ It is generally held that, in legal systems where the law is authoritatively formulated in literary sources, the judge's task is to apply to the case at hand the applicable written rule of law. That rule may be stated explicitly in the texts, or it may exist implicitly,"between the lines" of the written sources, to be derived through the use of logic, analogy, or other tools of legal reasoning accepted as valid by the system's practitioners.'?> Frequently, a judge will confront a question for which the texts provide no one obviously correct answer. How he renders a decision in the case is the subject of dispute between the various jurisprudential schools of thought. Legal positivists, for whom law is a system of rules enacted by authorized legislators and identified as law by certain master rules intrinsic to the system," believe that in such a case no valid law exists. In rendering a decision the judge in fact functions as a legislator, albeit an "interstitial" one,'* creating new law on the basis of utility, social policy, or other extralegal considerations. The judge is endowed by the legal system with the discretion to construct new legal norms which, filling the lacunae in the existing law, will serve as positive law to guide the decisions of future courts. This position has been attacked by Ronald Dworkin , who argues for a theory of"integrity in law".’® Rejecting positivism’s sharp distinction between law and morals, Dworkin contends that law cannot be reduced to a system of politically-enacted rules. Law contains principles as well, notions of justice and right which determine the judge’s decision in cases where no explicit or sufficient rule exists. There is almost always a "right answer" to a hard case, dictated by the judge’s conception of the most persuasive justification of the political morality of the legal system. The judge, in other words, does not enjoy the discretion to make new law, nor may he operate, as the legislator does, by ruling in accordance with his view of the best social policy. He interprets the law, deriving an answer for his hard case by constructing a theory which, in his view, is the most coherent account of the legal "data"(constitution, statutes, judicial precedents) with which he works. Since judges will disagree over these theories, they will
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