Dworkin’s Theory of Constructive Interpretation
The theory of constructive interpretation states that the law should be applied from an interpretative aspect in that a purpose should be imposed in legal practice, as opposed to common positivists idea that there are no theoretical disagreements about law, and that the law is what has already been written down and is being applied strictly in the formal legal practice (Dworkin, 1986). Dworkin insists that the formal structure of constructive interpretation is derived from an interpretative attitude because its main purpose is to create an intention on the data rather than to target a specific group or person (Dworkin, 1986). Constructive interpretation, therefore, has three main features. First, the interpretation is not normatively neutral, as the judge has to make value judgments. Secondly, a good interpretation should fit the facts as the judge should not ignore what is written before him, and lastly, a good interpretation of the law can be justified in that it shows or reveals the value of the work.
Therefore, the lawsuits should raise three issues when interpreting the law in times of deciding hard cases. These factors that should arouse any judge’s interests are morality, facts of the case, and the law. From such, every judge handling a case should create legal practice value through constructing the interest schemes, principles and goals that the practise should be taken to serve. Especially in hard cases, developing an interpretive attitude is key to making viable and valuable decisions. Two components of interpretative attitudes should be constructed when making decisions in hard cases. First, the judge should create an assumption that practice has value as it serves some interest, principles, or purpose that exist independently of the rule itself, and not that the practice simply exists. Secondly, the existing rule does not serve the underlying interest, principle or purpose, and should be interpreted differently. With the aforementioned interpretive attitudes, the rule or practice should not be applied instinctively. Rather, the rule or practice should depend more on the value that forms its core. Constructive interpretation of the legal practice has three stages when the interpretive attitude is applied. These stages include the stage before interpretation, the stage during interpretation, and the stage after interpretation. The stage before interpretation involves listing all the rules that encompass the law to be interpreted. The stage of interpretation, involves justification of all listed main elements of practice. The last stage, the post-interpretive stage, involves a critical reflection of how the rule should be applied to serve better justification found in the previous stage. Three observations of constructive interpretation of practice are finally noted. First, the interpretation constitutes a legal approach rather than a commitment to particular results or conclusions. Secondly, there can be right answers in law despite disagreements and uncertainties. Lastly, the constructive interpretation approach is imperative in helping the judges decide hard cases when the rules run out (Dworkin, 1986).
Another important section that constitutes the theory of constructive interpretation is law and integrity being complimentary. Dworkin reiterates that law and integrity have a political valence, and the lawmakers should make the law morally coherent since integrity is valuable. Our instincts naturally reject any law practice that does not propagate integrity. Therefore, integrity is the key overarching value of law, as it explains and justifies all law and not particular areas of law. When laws can be seen to encompass a system of rules and principles which join together in a unified, coherent way, able to explain and justify past decisions as well as new ones, then the law can be said to be exhibiting integrity.
A case example where constructive interpretation may be applicable is McLoughlin and O’Brian, where McLoughlin accused the driver O’Brian of causing her emotional injury after McLoughlin’s husband and four children were involved in a car accident, leading to the death of one of her daughters. She wanted a right to compensation (RC) from O’Brian. Conversely, a person has a moral right to compensation only if physical injury is caused, if the emotional injury is caused by someone else’s carelessness but only at the scene, if the overall costs of the accident diminish and alternatively makes the community richer, if caused by someone else no matter how unforeseeable it is, if the injury by sound judgment was foreseeable by the person who acted recklessly. Finally, people have right to compensation for foreseeable emotional injury, but the financial burden the compensation would cause to the offender should not be imposed in a way that it would surpass the magnitude of their moral fault. From the six interpretations, a judge possessing an interpretative attitude would settle for the interpretation that a person has a moral RC only if the injury was reasonably foreseeable by person who acted carelessly (Bickenbach et al., 2018).
The legal realism movement began in the late 19th century to early 20th century. It challenged the idea that the judges make decisions rationally by applying to the actual case the laws written. Legal realism are of the opinion that have judges have the propensity to make a pre-determined judgment about a case being handled, before even applying what is written in the law. The proponents of this theory reiterate that a judge’s personality has a direct impact on the judgment he makes. In other words, the judges, as per legal realist, often make decisions and justify them with formal legal rules. Legal realism theory, therefore, is a theory about judicial making which discards syllogistic views in decision-making and maintains that the law, in the context of the application of rules and principles to certain fact situations, is always radically indeterminate, in that there are no always specific single, right answers (Holmes, 1881).
Legal realism theory gives evidence of the indeterminacy of law by providing a list of examples of how the indeterminacy of laws and principles arises. These include indeterminacy of individual laws and principles, conflicts of principles, rules and rights, the judicial power to change rules and re-weigh principles, the uncertainty of facts, and judges are humans. In the case of indeterminacy of individual rules and principles, the rule and principles are general standards meant to apply to a wide range of cases. However, there is a doubt whether these general standards are applicable to particular instances. There are conflicts of the law, principles and rights as it is evidence that the norms in the law often stand in tension with each other. For instance, a right answer to the question of how to decide someone’s right to freedom of expression and the right of the one receiving such expression not to be harmed seems to be unavailable; the question remains rhetoric since it is also not certain if a decision has to be made on such matter (Cluver & Guidice, 2017). The evidence of cases where the judge is given the power to change the rules and re-weigh principles makes the law radically indeterminate, as a judge’s ruling becomes a law where judicial decisions become precedents even if it might be mistaken or different from the previous decision. A court could decide in either direction of a case when competing principles are evident, especially in hard cases. The facts faced by the court usually do not present themselves with certainty, and factors such as witness recollection, expert testimony, and evidence of harm cause difficulties in establishing facts. Lastly, those who make decisions are just but mere humans subject to influences and social conditions, including their background or upbringing, economic situation, ethnicity, political and moral views, education, and self-perception (Cluver & Guidice, 2017).
Feminist jurisprudence is based on both genders’ social, political and economic equality (MacKinnon, 1983). The philosophy identifies the gendered components of the neutral law including sexual harassment, and rape, among others, and analyses of these components. The feminists insist that law has historically been the public, institutional endorsement of patriarchy. The versions of feminist jurisprudence include socialist feminism, radical feminism, relational feminism, liberal feminism, and post-modern feminism (Smith, 1993). Social feminists believe that inequality is gender-based and class-based rather than the construction of gender roles. Post-modern feminists, on the other hand, believe that men and women have natures or fundamental differences. Relational feminists believe that men and women exhibit fundamentally different ethics when it comes to relationships. Women exhibit ethics of care while men exhibit an ethic of justice (focuses on abstract rules and values). Liberal feminist, conversely believes that freedom and equality should be extended to both men and women without discrimination, and lastly, radical feminist believe that the contemporary law should be maneuvered to ensure patriarchy is eliminated since under the law, they still believe that equality and freedom do not suffice.
Two factors are noticed in feminist jurisprudence. First, the patriarchal conditions are universal, and they will be inevitably be with us for long. Therefore, those who understand broadly how the law works, must also include understanding the disadvantaged based on a gender basis and concern of rethinking not only on particular laws but also on the legal system’s structural characteristics and features, including public/private distinctions. Secondly, the legal rules by nature aim at generality. So there should be ways that should be found in which the laws and legal systems should be open to specifying and particularizing disputes and experiences (Smith, 1993).
A case example is between Lyn Lavallee and Kevin Rust, where Lyn (appellant) shot Kevin Rust in the back of the head after claiming to be constantly abused by the deceased, even though she did no leave him. The following are the facts of the case: Rust had threatened that he would kill Levallee later on that night if she would not kill him first. Manitoba trial court ruled that she killed him out of self-defense, a case that was overturned by Manitoba Court of Appeal. However, the Supreme Court agreed with Manitoba trial court. The Supreme Court found Lavelle not guilty of murder because, with regard to “battered wife syndrome,” the case was applied in the context of abusive relationships (Bickenbach et al., 2018).
Both the feminist legal theories and the legal realists’ view agree with Dworkin’s constructive interpretation of the law. Therefore, through the perspectives of both legal realism and feminist jurisprudence, Dworkin’s view is improved. Dworkin reinstated that the legal practise should be applied with an interpretive attitude and should not be applied as naturally as it exists. The law is normatively neutral, and the judge should make value judgments, the decision made should fit what is written in the record books, and lastly, it should be justified. Therefore, as per his view, rather than making decisions (especially hard ones) according to only what the law provides, every judge handling a case should create legal practice value through constructing the interest schemes, principles and goals that the practise should be taken to serve. This view is in harmony with legal realism theory that states that the law is radically indeterminate and discards syllogistic views in decision making, and maintains that the law, in the context of the application of rules and principles to certain fact situations, has no specific single, right answers.
Additionally, both views also are in harmony with the feminist theory that insists on viewing the law as a generality and reiterating that laws and legal systems should be open to specifying and particularizing disputes and experiences. It is imperative to rethink particular laws and the structural components of the legal systems, instead of generalizing all aspects, including those that the law would be applicable in certain contexts. Therefore, it is right to conclude that there are important issues to be considered when interpreting the laws, and these include the facts and morality issues. When deciding on any case, following the written law is crucial; however, making value judgments that can be justified using the written law is more important.
BICKENBACH, J. E., CLUVER, K. C., & GUIDICE, M. (2018). CANADIAN CASES IN THE PHYLOSOPHY OF LAW.
Culver, K. C., & Guidice, M. (2017). Readings in the Philosophy of Law.
Dworkin, R. (1986). Integrity in Law.
Holmes, :. O. (1881). The Path of the Law.
MacKinnon, C. (1983). Toward Feminist Jurisprudence.
Smith, P. (1993). Feminist Jurisprudence and the Nature of Law.