Dworkin’s ‘Law as Interpretive Concept’

  • Law is an interpretative concept acc to conception of “law as integrity”, its content depends on more refined interpretations of the same legal practice it has begun to interpret. – Check out SEO Glasgow
  • Unlike positivism, Dworkin’s theory claims to be able to account for “disagreements in the law” – positivists claimed to argue that such disagreements are actually about what the law ought to be but this isn’t satisfactory. Theoretical disagreements frequently occur in legal practice & academia, and claiming their non existence would equate to calling practice in which legal scholars engage incoherent.
  • Judges should decide what the law is by interpreting the practice of other judgeslaw as integrity unites jurisprudence & adjudication in this way.
  1. Community of courtesy example
  • Members follow a set of rules; i.e. rules of courtesy (may require peasants to take their hats off to nobility). For time being, rules are there & not questioned but then all this changes & people develop an interpretative attitude towards them which has 2 components:
  1. assumption that practice of courtesy has value; i.e. serves some purpose
  2. assumption that requirements of courtesy are sensitive to the purpose, so that rules must be understood, applied or modified acc. w/it
  • Once that interpretative attitude develops, institution of courtesy ceases to be mechanical & people try to impose a meaning on it – see it in best light – and restructure it in light of that meaning.
  • Interpretation of social practice is like creative interpretation – it’s constructive b/c interpretation of works & social practices is essentially concerned w/purpose, not cause, but purposes at play are those of the interpreter constructive interpretation is a matter of imposing purpose on an object or practice in order to make it the best example of the form or genre to which it’s taken to belong.
  • In making the practice the best it can be, criteria are “fit” & “moral value/justification”
  1. The process is made up of 3 analytical stages:
  1. Pre-interpretive – rules & standards which constitute the practice are identified (equivalent stage in literary interpretation is to identify the text”
  • some interpretation also required here b/c social rules don’t carry identifying labels
  1. Interpretive – interpreter settles on some general justification for the main elements of practice identified at pre-interpretive stage – it needn’t fit every aspect of the practice but must be enough for interpreter to see he’s interpreting it and not inventing a new one
  2. Post interpretive – interpreter adjusts his sense of what the practice “really” requires so as to better serve the justification he accepts at interpretive stage (e.g. interpreter of courtesy might find that consistent enforcement of best justification of that practice would require people to tip their hats to soldiers returning from war + nobles, or that it calls for new exception, such as making returning soldiers exempt from the practice)
  • Actual interpretation would be much less deliberate & structured – people’s interpretive judgments would be more a matter of “seeing” at once dimensions of their practice, a purpose or aim in that practice, and its post interpretive consequence.
  • Bix – a distraction jurisprudence could well do w/out!!

 

  • Application of law

 

  1. What’s the purpose/point/value of law – acc to Dworkin, to constrain or justify the exercise of governmental power
  • In order to find the right answer in hard case, Hercules must develop a theory about the character of the law before him, in the shape of coherent scheme of principles which best fits & justifies the institutional history & practices of his legal system.
  1. Hercule’s own input
  • His own theory may be different from another judge’s theory b/c it requires judgments about complex issues of institutional fit + judgments about political & moral philosophy
  • Construction of “soundest theory of law” is a controversial task involving complex questions of moral & political theory but not about Hercules’ own personal moral beliefs but about moral & philosophical theory which best serves to justify the established legal rules.