Lecture 15. Dworkin’s theory of legal interpretivism and law as integrity
Main focus of this lecture: Dworkin’s theory as developed in his book Law’s Empire (hereafter ‘LE’)
Legal disagreements
- Legal disagreements (i.e. disagreements about the law governing a case) are a common feature of the
legal practice.
- A distinction between theoretical and empirical disagreements
Theoretical disagreements about law = disagreement about grounds of law.
Empirical disagreement about law = disagreements as to whether those grounds are in fact
satisfied regarding a certain law.
- Dworkin: judges have theoretical disagreements about the law.
Law as an interpretive concept
- Law is an interpretive concept - Law is a practice which involves disputes about its interpretation.
- The interpretive attitude has two components:
(i) ‘[T]he assumption that the practice … does not simply exist but has value, … that it has a
point’ (LE, 47)
E.g. not to be loud (e.g. hoovering) after 8pm. This has value as the point can be
to not disturb neighbours on Sundays.
(ii) The assumption that the requirements of the practice (i.e. the behavior it demands and
the judgments it warrants) are ‘sensitive to its point, so that the strict rules must be
understood or applied or extended or modified or qualified or limited by that point’ (ibid).
- Different kinds of interpretation
Conversational interpretation
‘We interpret the sounds or marks of another person in order to decide what he has
said’ (LE, 50)
This type of interpretation ‘assigns meaning in light of the motives and purposes
and concerns it supposes the speaker to have…’ (ibid)
This is to trace a subjective aspect
Scientific interpretation
‘[W]e say that a scientist first collects data and then interprets them’ (ibid). But
since scientific interpretation does not aim at discovering a purpose (but rather at
providing causal explanations), we might say that the phrase scientific
interpretation ‘is only a metaphor, the metaphor of data “speaking to” the scientist
in the way one person speaks to another…’ (LE, 51)
Creative interpretation (most relevant)
E.g. interpreting a social aspect
Aims to ‘interpret something created by people as an entity distinct from them,
rather than what people say, as in conversational interpretation, or events not
created by people, as in scientific interpretation’ (LE, 50)
Applicable, for example, to artistic work (poems, plays, paintings, etc.) as well as to
social practices (such as law)
‘[C]reative interpretation is not conversational but constructive’ (LE, 52). It is ‘a
matter of imposing purpose on an object or practice in order to make of it the best
possible example of the form or genre to which it is taken to belong’ (ibid). Note:
‘the history or shape of a practice or object constraints the available interpretations
of it; creative interpretation, on the constructive view, is a matter of interaction
between purpose and object’ (LE, 52).
This is the type of interpretation going on in law
Dworkin’s distinction between concept and conceptions
- The contrast between concept and conceptions is ‘a contrast between levels of abstraction at which
the interpretation of the practice can be studied’ (LE, 71)
- Example: regarding courtesy, we may say that, for a certain community, ‘respect provides the concept
of courtesy and that competing positions about what respect really requires are conceptions of that
concept’ (ibid)
Main focus of this lecture: Dworkin’s theory as developed in his book Law’s Empire (hereafter ‘LE’)
Legal disagreements
- Legal disagreements (i.e. disagreements about the law governing a case) are a common feature of the
legal practice.
- A distinction between theoretical and empirical disagreements
Theoretical disagreements about law = disagreement about grounds of law.
Empirical disagreement about law = disagreements as to whether those grounds are in fact
satisfied regarding a certain law.
- Dworkin: judges have theoretical disagreements about the law.
Law as an interpretive concept
- Law is an interpretive concept - Law is a practice which involves disputes about its interpretation.
- The interpretive attitude has two components:
(i) ‘[T]he assumption that the practice … does not simply exist but has value, … that it has a
point’ (LE, 47)
E.g. not to be loud (e.g. hoovering) after 8pm. This has value as the point can be
to not disturb neighbours on Sundays.
(ii) The assumption that the requirements of the practice (i.e. the behavior it demands and
the judgments it warrants) are ‘sensitive to its point, so that the strict rules must be
understood or applied or extended or modified or qualified or limited by that point’ (ibid).
- Different kinds of interpretation
Conversational interpretation
‘We interpret the sounds or marks of another person in order to decide what he has
said’ (LE, 50)
This type of interpretation ‘assigns meaning in light of the motives and purposes
and concerns it supposes the speaker to have…’ (ibid)
This is to trace a subjective aspect
Scientific interpretation
‘[W]e say that a scientist first collects data and then interprets them’ (ibid). But
since scientific interpretation does not aim at discovering a purpose (but rather at
providing causal explanations), we might say that the phrase scientific
interpretation ‘is only a metaphor, the metaphor of data “speaking to” the scientist
in the way one person speaks to another…’ (LE, 51)
Creative interpretation (most relevant)
E.g. interpreting a social aspect
Aims to ‘interpret something created by people as an entity distinct from them,
rather than what people say, as in conversational interpretation, or events not
created by people, as in scientific interpretation’ (LE, 50)
Applicable, for example, to artistic work (poems, plays, paintings, etc.) as well as to
social practices (such as law)
‘[C]reative interpretation is not conversational but constructive’ (LE, 52). It is ‘a
matter of imposing purpose on an object or practice in order to make of it the best
possible example of the form or genre to which it is taken to belong’ (ibid). Note:
‘the history or shape of a practice or object constraints the available interpretations
of it; creative interpretation, on the constructive view, is a matter of interaction
between purpose and object’ (LE, 52).
This is the type of interpretation going on in law
Dworkin’s distinction between concept and conceptions
- The contrast between concept and conceptions is ‘a contrast between levels of abstraction at which
the interpretation of the practice can be studied’ (LE, 71)
- Example: regarding courtesy, we may say that, for a certain community, ‘respect provides the concept
of courtesy and that competing positions about what respect really requires are conceptions of that
concept’ (ibid)
