Interpretivism PDF

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Lecture notes on interpretivism...

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Interpretivism Legal positivism, natural law theory and interpretivism are theories about the nature of law. Theories that attempt to give an account of the grounds of law - what makes law valid, whether law is connected to morality and whether judges have a discretion to make law. Competing theories All of these theories are providing competing answers to the same questions. It’s important to understand what they are all saying. Make a chart? Ronald Dworkin (1931-2013) Student of HLA Hart, takes up Hart’s Chair of Jurisprudence at Oxford. Positivism’s most significant critic. Dworkin says that Hart thinks that law is comprised wholly of rules. When the rules run out, there are hard cases. He says that Hart is making a mistake. He says he’s missing something. He says that in addition to legal rules, there are also moral principles that are also authoritative sources. If you look at this, the law doesn’t actually run out. Hart thinks you fill the gap with stuff outside the law. But Dworkin says that you are not reaching outside of the law: morality is part of the law. Rules vs. Principles Rules are all or nothing standards. Either they apply or don’t apply. If it does apply, it is what settles the matter. Principles are different. They have different weights. You have to balance principles against each other. Sometimes they win out, sometimes they don’t. The law is composed of both rules and principles but they have these different features. No legal rule? In cases where there is no rule found in legislation, it does not mean there is no law. Moral principles comprise the law too, which judges use in deciding so-called hard cases, unlike Hart’s claim that principles can be used as extra-legal considerations. Dworkin’s rejection of pedigree thesis Dworkin rejects this. He rejects only looking to social fact (rule of recognition). Because it is obviously not recognising these moral principles. Judges are going to be bound to follow that so we need to recognise that principles are themselves law. He says that Hart is missing out on an entire chunk of legal standards. Since he rejects pedigree thesis, you have to reject positivism. Judicial discretion He says that you need to reject the pedigree thesis and the separability thesis. He says that Hart is kind of right: judges do have discretion when they adjudicate a legal issue. But it isn't the same kind of discretion that Hart thinks because it’s weak. They have discretion to choose between moral principles but these principles are already law. For Dworkin, judges only have a weak discretion. He also thinks we should reject the discretion thesis. He says there is always an answer to a legal question: rules and principles will always give you an answer, the law is never silent. Riggs v Palmer Grandson who kills grandfather. He is caught. There was no statute that made his claim on grandfather’s estate to be null. Literal reading said he could inherit from person he murdered. Dworkin says that rules can run out. The court said that no one should be able profit from own wrong. They said he couldn’t inherit. They came to the conclusion that there was no right for him to get inheritance. Hart will tell you that they reached outside of the law to fill up the gap. Dworkin says that that principle was always there. Those judges didn’t reach outside of the law, they just

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looked at those fundamental maxims inside the common law. Dworkin thinks that this case shows why he is right. He then puts forward ‘law as integrity’. Interpretivism Offers a philosophical explanation of the legally significant action and practices of political institutions. His claim is that the way in which institutional practice affects the law is determined by certain principles that explain why the practice should have that role. Dworkin is its most influential proponent. If you want to understand all of this, he says that you have to get clear with the idea of interpretation. You have to understand judicial adjudication as interpretation. It’s about finding the best interpretation. He says that judges should decide hard cases buy interpreting the political structure of their community. When you’re faced with these cases, principles kick in. Trying to provide the best moral justification to the question Adjudication as Interpretation What would be the best moral justification? You construct the best interpretation for your legal system. You try to provide the best interpretation. Morality comes first, it takes precedence. If this interpretation is trying to provide the best kind of account, there has to be 2 components for it to be successful. Firstly, component of fit, it must fit with societal practices, with the statutes and cases, with the existing legal and political structure. Secondly, is has to provide a moral justification for those practices, it must present them in the best possible moral light. These two components make the integrity. Dworkin on legal validity For Dworkin, a valid legal principle is the one that is the morally best answer to the question. For Dworkin, in this process, he makes use of the idea of looking at literal interpretation and artistic. We should look at the law as we would look at a poem, at an artefact etc. We seek fit in justification, trying to interpret. Chain Novel Analogy Artistic interpretation. Each new chapter has to fit neatly with previous ones. Has to fit with previous chapters but has to get the best possible story. Common law is like a chain novel. Judge Hercules Ideal judge, immensely wise, full knowledge of legal sources, plenty of time to deliberate. Hercules is required to construct the theory that best fits and justifies the law as a whole (law as integrity). Hercules would always come to one right answer. Is Dworkin a natural law theorist? He rejects pedigree, separability and strong discretion thesis. He also says moral facts will play an important role. Is Dworkin a natural law theorist? No Dworkin on Moral Principles He does make special room for these principles but they are not principles of natural law. Nor are they personal moral principles a judge may hold. They are principles of political morality. Interpretivism is a ‘third theory of law’. His theory is kind of in the middle....