dworkin's theory of interpretation

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48–50. Dworkin’s theory of law as interpretationis a very complex challenge to analytical jurisprudence in general and legal positivism in particular. 17 E.g., Dworkin, , Matter of Principle, pp. 9 Dworkin has emphasized that constitutional interpretations must meet a standard of “fit” that would incorporate continuing practices and precedents into a coherent constitutional framework that maintains integrity. I believe that even traditional originalists have much to gain from Dworkin's insights into interpretive theory, and there may of course be external reasons for preferring Dworkin's approach to constitutional interpretation over an originalist approach. 8 Quoted in Kalman, , Legal Liberalism, p. 139. 2018. He has recently reasserted that his own “originalist” musings should not be construed as altering his “long-standing opposition to any form of originalism,” “Arduous Virtue”, p. 1258n18. 170–90; Searle, John, Intentionality (New York: Cambridge University Press, 1983), pp. Dworkin’s theory supposed that the legal matter usually has the only right answer. 30–35. Ronald Dworkin's effort to distinguish multiple layers of “intention” that are embedded in the constitutional text has been taken as a substantial critique of traditional originalist jurisprudence. Moreover, their interpretive results can potentially conflict. 77 As always, my concern here is not with how easily the interpreter can access that singular intention. 76 This approach is most fully elaborated in Dworkin, Law's Empire. 292–94. Usage data cannot currently be displayed. See also, Dworkin, , Freedom's Law, pp. 231–61; Bach, Kent, Thought and Reference (New York: Oxford University Press, 1987), pp. Even here, however, Dworkin hedges his bets, contending that “the moral reading insists that the Constitution means what the framers intended to say” (ibid., p. 13). 288–99. 39 Dworkin, , “Comment,” pp. 72 Originalists generally fall back on their own assumptions of intentional specificity because of their overriding concern to limit judicial discretion. 710–14; Ely, John Hart, Democracy and Distrust (Cambridge, MA: Harvard University Press, 1980), p. 1; Perry, Michael, The Constitution, the Courts, and Human Rights (New Haven: Yale University Press, 1982), p. 16. 56 And even then, the speaker may make an error in his effort to invoke a convention. 7–10, 13–14. 293, 304. 137, 138). I do not address here the significance of these debates over the historical record. 23 For a different argument characterizing Dworkin as a “textualist”, see Foley, “Interpretation and Philosophy”, p. 153. 34 Dworkin, , Taking Rights Seriously, pp. Nonetheless, the manager must be cognizant of what the boss meant, and thus of the specific content of his directive. 83 The theoretical convergence that Dworkin sees is not toward traditional originalism, however, but rather is toward his own morally infused interpretation of founding intent. This theory – ‘law as integrity’ – describes legal interpretation essentially as follows: the legal interpreter first arrives at a set of moral principles that fit the ‘institutional legal materials’ and put them in their best light; and then, using those principles, the interpreter establishes the correct legal rights and duties. 116–24; Dworkin, , Law's Empire, pp. Adjudicative principles instruct that the law be seen as coherent in that way, as far as possible. Tully, James (Princeton: Princeton University Press, 1988), p. 73; Hancher, Michael, “Three Kinds of Intention”, Modern Language Notes 87 (1972): 829. The manager may possess information or skills unavailable to the boss, such that the hypothetical of “what would the boss do” might be misleading. 33 Dworkin is not clear on the nature of these moral entities, and he explicitly abstains from the debate between moral realism and conventionalism. 1 Kalman, Laura, The Strange Career of Legal Liberalism (New Haven: Yale University Press, 1996), pp. 43 Dworkin, , “Arduous Virtue,” pp. This error would frustrate the speaker's expectation, but it would not necessarily prevent his meaning from being understandable or understood. Regardless of the metaphysical source of the moral concepts to which the constitutional text refers, however, Dworkin is concerned that they have meaning independent of legislative or judicial will. Michael McConnell has called these the “two Dworkins” (McConnell, , “The Importance of Humility in Judicial Review: A Comment on Ronald Dworkin's ‘Moral Reading’ of the Constitution”, Fordham Law Review 65 [1997]: 1270). 1–15. 5 Farber, Daniel A., “The Originalism Debate: A Guide for the Perplexed”, Ohio State Law Journal 49 (1989): 1085; Bassham, Gregory, Original Intent and the Constitution (Lanham, MD: Rowman & Littlefield, 1992), pp. 72–76. 82 The text itself may provide clues as to which intent is conveyed, however. Communication is not. 135–36; Dworkin, , Matter of Principle, pp. E.g., Davidson, “A Nice Derangement of Epitaphs”. Abstract views reflect the number of visits to the article landing page. See also, Brink, David O., “Legal Theory, Legal Interpretation, and Judicial Review,” Philosophy and Public Affairs 17 (1988): 105; Moore, Michael S., “The Semantics of Judging”, Southern California Law Review 54 (1981): 151. 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