dworkin's theory of interpretation

77 As always, my concern here is not with how easily the interpreter can access that singular intention. 13 Dworkin has occasionally backed his assertions with some historical evidence, for example by citing H. Jefferson Powell's work in support of his contention that “there is persuasive historical evidence that the framers intended that their own interpretations of the abstract language that they wrote should not be regarded as decisive in court” (Freedom's Law, p. 380nl). 135, 136. For Bork, the judge does not choose the winner, he merely enforces the will of the winner. 124, 120 (emphasis added). 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. 9–14; Dworkin, , “Arduous Virtue”, pp. Which means actual end result, which Dworkin recognized is the fact different judges may choose different results when they adopt the integrity rules, … (DOC) DWORKINS INTERPRETIVE THEORY OF LAW | Shafia Lati - Academia.edu Dworkin’s work has consistently been concerned with judicial interpretation of law and the role of judges. 40 Dworkin, , “Arduous Virtue,” pp. 20 E.g., Dworkin, , Freedom's Law, pp. 7–10, 13–14. 256–57. 31–32. It is possible that the Founders had no expectation of conflict between objective moral reality and their own understanding of those principles, and that they understood the text to be a transcription of those eternal principles. 288–99. 48–49, 53; Dworkin, , Freedom's Law, pp. Dworkin as a critic of HLA Hart's legal positivism has been summarized by the Stanford Encyclopedia which has stated that: 135–36; Dworkin, , Matter of Principle, pp. 56 And even then, the speaker may make an error in his effort to invoke a convention. See also, Dworkin, , Freedom's Law, pp. Dworkin, , Freedom's Law, pp. Judges should rely on historical evidence in construing constitutional meaning, and complexities of interpreting the intent should be resolved internally to the historical evidence, with judicial restraint being the appropriate response to lingering textual ambiguities. 70–72. Abstract views reflect the number of visits to the article landing page. 2 E.g., Grey, Thomas, “Do We Have an Unwritten Constitution?” Stanford Law Review 27 (1975): pp. Although there may be normative reasons for preferring that the judiciary always enforce broad constitutional principles, such a jurisprudence cannot be understood as either consistent with or required by an originalist interpretative method whose primary commitment is to fidelity to founding intent. 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). 52–55, 70–72; Dworkin, , Matter of Principle, pp. In Dworkin's reading, traditional originalists have all implicitly given up the game to him. 10–11; Dworkin, , “Arduous Virtue”, pp. 17 E.g., Dworkin, , Matter of Principle, pp. 1249–51. 10 Dworkin, , Freedom's Law, pp. 14 Although there are many disagreements even among “traditional” originalists, I take originalism to refer to a theory of constitutional interpretation that requires judges to justify their decisions in terms of and should act to enforce the intentions of those who drafted and ratified the relevant constitutional text. * Views captured on Cambridge Core between . 62 Dworkin, , “Comment,” pp. 73, 76. In fact, the intent embedded in the text may be inherently indeterminate or unknowable. 287–90, “Comment,” p. 115. 1–13. This data will be updated every 24 hours. 290–93, 299; Dworkin, , “Comment”, 115–127; Dworkin, , “Arduous Virtue”, pp. 292–93; Dworkin, , Matter of Principle, pp. It is the difference between explaining the text by saying, “As the esteemed Coke says, all men have a right to property”, rather than, “By ‘liberty’, I mean the common law rights of Englishmen”. Alexander, Larry (New York: Cambridge University Press, 1998), pp. 44 Schauer, Frederick, in “Fidelity as Integrity: Colloquy”, Fordham Law Review 65 (1997): 1361. My concern is with Dworkin's claim that intentions can be known but without any significant historical investigation. 265–80; Davidson, , “A Nice Derangement of Epitaphs”; Hirsch, , Aims and Interpretations, pp. 36 Dworkin, , Matter of Principle, p. 49; Dworkin, , Freedom's Law, pp. 33 Dworkin is not clear on the nature of these moral entities, and he explicitly abstains from the debate between moral realism and conventionalism. 116–27; Dworkin, , “The Arduous Virtue of Fidelity: Originalism, Scalia, Tribe, and Nerve”, Fordham Law Review 65 (1997): 1252–62. See also, Kay, Richard S., “American Constitutionalism”, in Constitutionalism, ed. 283–311, 351–72; Scalia, Antonin, “Originalism: The Lesser Evil”, University of Cincinnati Law Review 57 (1989): 849; Monaghan, Henry P., “Our Perfect Constitution”, New York University Law Review 56 (1981): 353. 39 Dworkin, , “Comment,” pp. These principles are understood to be both fundamental to the Founders' intentions and the primary focus of correct constitutional interpretation faithful to those intentions. 13–14, 293–99; Dworkin, , “Comment”, p. 122; Dworkin, , “Arduous Virtue”, p. 1257. 16 Dworkin, , “The Jurisprudence of Richard Nixon”, New York Review of Books (4 05 1972), p. 27. 70–72; Original Intent, Bassham, , pp. 291–92. 3, chaps. 72–75. 7–12. 196–290; Salmon, Nathan, Reference and Essence (Princeton: Princeton University Press, 1981), pp. As the First Amendment's free speech clause demonstrates, authorial intent does not always follow linguistic conventions. 57 Davidson, Donald, Inquiries into Truth and Interpretation (New York: Oxford University Press, 1984), pp. 47 Dworkin, , “Arduous Virtue,” pp. Full text views reflects the number of PDF downloads, PDFs sent to Google Drive, Dropbox and Kindle and HTML full text views. 42 Dworkin, , “Reflections on Fidelity,” Fordham Law Review 65 (1997): 1808; Dworkin, , “Arduous Virtue,” p. 1255; Dworkin, , Freedom's Law, pp.

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