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Dworkin: We need to interpret legal practice the same way we would interpret literature

LLB Jurisprudence team presentation 2013

Sophie Kasmi

on 9 May 2017

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Transcript of Dworkin: We need to interpret legal practice the same way we would interpret literature

‘In order to understand legal practice,
we need to interpret the practice
in the same way as we would interpret
a piece of literature.’

A discussion by Besma Kasmi, Memnia Papadopoulou and James Tudor;
with particular reference to Ronald Dworkin's interpretive' theory

"My words fly up, my thoughts
remain below: Words without
thoughts never to heaven go."
The meaning of
- Claudius in Hamlet
An example given by Dworkin:
Some claim that Hamlet is best understood as a play about 'obliquity, doubling and delay'
An 'internal' skeptic might retort "you are wrong, Hamlet is too confused and jumbled to be about anything at all"
An 'external' skeptic might reply "I agree with you. Of course, that is only an opinion we share" claiming this account cannot objectively be proved.

Principles are binding and judges' discretion is limited by them
As other standards operate in law, the rule of recognition is 'too simplistic'
Only principles that have been embedded in law can be used by judges in their discretion

Only general commands emanating from the sovereign are positive laws

Law is made up only of rules, principles exist but are not legally binding as are sometimes 'made up' by judges

Questioned whether 'evil' laws were valid law
Highlighted importance of morality in law

Semantic theories fail to explain essence of law
Debate concerning validity of 'evil' laws is sterile if conducted at semantic level
Stanley Fish
Dworkin's reponse
Interpretation is a 'social construct'
We are all trapped within our belief systems
Contests between rival schools of interpretation are more political than argumentative
Dworkin's response
Dworkin's response
John Austin
H.L.A. Hart
Dworkin does not deny that interpretation is socially constructed, but there are two kinds of interpretation:
1)Convictions about integrity - relating to fit
2)Convictions about artistic merit - relating to value
While they interact, they are "sufficiently insulated to give friction and therefore sense to anyone's interpretive analysis"
Interpretive Theory
“I propose we can improve our understanding of law by comparing legal interpretation with interpretation in other fields of knowledge, particularly literature. I also expect that law, when better understood, will provide a better grasp of what interpretation is in general.”
Interpretivism about the nature of law is the view that legal rights and duties are determined by the scheme of principle that provides the best justification of certain political practices of a community.

There are 3 types of interpretation

1) Explanatory interpretation

2) Conceptual Interpretation

3) Collaborative interpretation
When the court has to decide a hard case, it will draw on moral or political standards in the form of principles and policies in order to reach a decision
Principles attempt to secure an individual or group right; while policies attempt to secure a collective goal of the community as a whole. This makes up the moral fabric of society
Dworkin's view differs from natural law theory because there is no reference to a universal, unchanging higher order of law; and the moral fabric is not discoverable by reason or divine revelation but rather empirically
Case of Riggs v Palmer technically law allowed crime but under principle 'none should benefit from own wrong' was not - Dworkin argues principles like this have the role of 'balancing' the law and are binding
The case seems to illustrate a rule MODIFIED by a principle (no man shall benefit from his own wrongdoing); thus the rule did NOT operate in an all-or-nothing fashion, proving Dworkin's method
Dworkin's 'right answer' thesis is that in hard cases the judge draws the values of the society (legal rules, case law, values and goals of the society) to determine the principle that should most apply in the case…this is not retrospective law because it comes about from things that already exist, so itself already exists i.e. judges do not make law they just distill principles from what the law already is
The Stages of Interpretation
Rules and standards taken to provide the tentative content of the practice are identified
Step 1
Step 3
Argument why a practice of that general shape is worth pursuing
Must fit enough for interpreter to be able to see himself as interpreting that practice - NOT inventing a new one
Judge adjusts his sense of what the practice really requires so as to better serve the justification he accepts at the interpretive stage
Step 2
Pre-interpretive stage
Interpreter settles on some general justification
Post-interpretive/ Reforming stage
Finalised interpretation
The aesthetic hypothesis: an interpretation of a piece of literature attempts to show which way of reading (or speaking or directing or acting) the text reveals it as the best work of art.
Theory which best coheres with 'institutional history' of his community
Treats law as a gapless system and seamless web
A precedent may have 'enactment' OR 'gravitational' effect
"Deciding hard cases at law using common law precedent is like writing a chain novel.

The judge must read through what other judges in the past have written not only to discover what these judges have said, or their state of mind when they said it, but to reach an opinion about what these judges have collectively done, in the way that each of our novelists formed an opinion about the collective novel so far written."
The judge must interpret what has gone before because he has a responsibility to advance the enterprise in hand rather than strike out in some new direction of his own.
So he must determine, according to his own judgement, what the earlier decisions come to, what the point or theme of the practice so far, taken as a whole, really is.
To Conclude...
Case study:
McLoughlin v O'Brian
Conventionalist view: judge must exercise a discretion and make new law
Dworkin's view: ' 'propositions of law are true if they figure in or follow from the principles of justice, fairness and procedural due processes that provide the best constructive interpretation of the community's legal practice'.
People have a moral right to compensation for emotional or physical injury that is the consequence of careless conduct, but only if that injury was reasonably foreseeable by the person who acted carelessly.
Dworkin set out 6 possible interpretations of the common law that might serve as basis for the decision:
People have a moral right to compensation for reasonably foreseeable injury but not in circumstances when recognizing such aright would impose massive and destructive financial burdens on people who have been careless out of proportion to their moral fault
In order to understand legal practice, we need to interpret the practice in the same way as we would interpret a piece of literature.
Is there truth in interpretation?
Dworkin takes a constructive approach in that there is a 'best' or 'right' interpretation which literature critics and judges in law seek to achieve

There exists a number of possibilities in interpreting both law and literature
Some hold the view that there are many valid and 'true' interpretations to a single scenario
Others hold the view that although these are valid, there can be no single correct interpretation
The body of legal doctrine (precedents, statutes) restricts the choice of interpretations available to the judge
The policies and principles which make up the moral fabric of the society are used to interpret in a way that the judgment will flow as a continuous of existing and previous law and judgments
Authors engaged in a 'chain novel' are required to write a new chapter out of the material they receive from previous chapter writers
They attempt to write their chapter in such a way that the final product will appear to be the creation of a single writer
Interpreters of both law and literature must follow an evaluative process to result in the right judgment.
Judges should therefore be as authors engaged in a 'chain novel', each one of whom is required to write a new chapter which is added to what the next co-novelist receives.

The characters, plot, theme, genre and objectives of the novel as it progresses are as the rules, principles and policies of the law - co-novelists and judges must have a view of these concepts in order to write the new chapter/make the new judgment as though it was done by a single person.
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