Objectivity and Interpretation

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Transcript of Objectivity and Interpretation

In Law as Interpretation, Ronald Dworkin claims that legal interpretation is not merely interpreting positive law but untangling precedent to discover what the law has collectively done. To demonstrate this claim, Dworkin compares legal interpretation with interpretation in literature. From this analysis he also notes that law is deeply intertwined with political theory. Law as Interpretation is divided into three central parts: Law, Literature and Law and Literature. By dividing the text in this way, Dworkin parcels his arguments in a way to allow the reader to succinctly observe his method.In the first section Law, Dworkin attempts to clarify the limits of interpretation as conventionally understood in the legal sphere. He begins by asking the reader to take serious in analytical jurisprudence the questions, What is law? and How can we test its validity? He suggests that definitions of law or propositions, are conventionally interpreted as wholly descriptive: chunks of law-making events in history. But in hard cases, those without explicit connection to precedent, this type of analysis fails. He notes that propositions can also be expressions of what law should be, a description of a law resting on an objective moral truth. This evaluative interpretation is not plausible because of a separation from legal precedent and overreliance on a jurists personal politics. Instead, Dworkin suggests an alternative description of propositions in law: they are combinations of description and evaluation, wholly interpretive of legal history.Unless disconnected from intent this concept of interpretation cannot serve as a total account of legal propositions. According to Dworkin, most lawyers recognize that testing the validity or interpreting correctly cannot rest on intent either because the author did not intend the law to be used in a hard case nor can the original intent of the text be deciphered. Therefore, interpretation must be understood more inclusively and to do so, interpretation must be studied as a general mode of knowledge connected to other activities notably literature. Literary criticism is particularly instructive since many more theories of interpretation can be found there than in law including those that dare to blur the distinction between evaluation and description that have enfeebled legal theory (pp. 530).In the second section, Literature, Dworkin introduces two theories of legal interpretation: The Aesthetic Hypothesis and the Authors Intention. He claims that if lawyers are to gain anything from a legal/literary comparison it is the ability to interpret the meaning of a work as a whole. Both theories are instructive in this regard. Dworkins aesthetic hypothesis is this: 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. (pp. 531) This hypothesis consists of three parts: 1) Interpretation of a text attempts to show it as the best work of art it can be and must contain a theory of interpretation and a subtheory of identity (to prevent interpretation from changing a work 2) Contemporary theories of interpretation tend to use a canonical text to constrain in the name of identity, helping in its development 3) An interpretative style must be sensitive to an interpreters opinion about its unity or integrity in art. Dworkin introduces a theory of intentionalism to test the above theory. According to him, intentionalists claim that what is valuable in a work of art, the quality of art that allows the critic to make value judgments about different works is limited to what the author intended. This thesis presupposes that art must be understood as a form of speaker-audience communication. For the intentionalist, one must understand what something means before we can decide whether it is valuable and where its value lies, and the intentions of the author are important in defining the meaning of the work as a whole. Dworkin objects to the first claim of intent because it assumes that significance or value of a work in art is placed merely because it is the authors intention. This claim relies only a normative theory of art and cannot stand up to any methods of preliminary observation or evaluation. Dworkin also objects to the second claim, the authors mind is central to interpretation, as this assumption fails to recognize the complexities that come with formulating intentions and beliefs about a work. These complexities tend to clash with the notion that intention is fixed and narrow. He notes: the intentions of authors are not simply conjunctive like the intentions of someone who goes to market with a shopping list, but structured, so that the more concrete of these intentions, like intentions about the motives of a particular character in a novel, are contingent on interpretative beliefs whose soundness varies with what is produced and which might be radically altered from time to time. (pp. 540)In the third section of the text: Law as Interpretation, Dworkin uses previous interpretations in literature as a model for the central means of legal analysis. For him, the jurist is the combination of a critic and artist so it becomes necessary to develop a tacit theory to integrate interpretation and creation in law. Dworkins theory is as follows: to interpret the law a jurist must use precedent to discover not only what previous judges have said or the state of mind when they said it, but to create an opinion about what the judges as a collective body have done. Interpreters of law must understand that they are in a long line of legal history with express purpose to continue that history into the future; to advance the undertaking of legal interpretation and come to a conclusion of the purpose of the practice as a whole.In this text, Dworkin misunderstands Hirschs intentionalism. Here Dworkin critiques Hirsch on the grounds that: 1) interpretation is public 2) it is incorrect to assume that much of validity for example validity necessitates demonstrability. On the first criticism, Hirsch notes that interpretation is a public enterprise, albeit in an unconventional way. To recuperate the ideal of validity, the author must be saved. Hirsh attempts does so by rendering meaning immutable and banishing the author in the past. The importance of public consensus in the act of reading is noted in the text despite Hirshs unsuccessful attempt to conflate (deflate) semantic autonomys public consensus with public unanimity (pp. 13). According to him, unanimity never takes place since people necessarily disagree. He notes: [b]y what standard is it judged that a correct insight into public norms is lacking in all those readers who are competent readers of texts. Yet earlier he suggests, the aim of the discipline must be to reach consensus, on the basis of what is known. (pp. 17) Hirsch notes that meaning cannot be determined in a vacuum with the reader. If the writer loses the meaning experience true authorial sovereignty is lost. Therefore, it is ultimately up to readers to collaborate in the pooling of knowledge to recuperate this banished historical moment. In this process of recuperation, the reader (the public) is sovereign since meaning is derived from their efforts, but lives under the illusion that the authors original intent is the master. This inconsistency, simultaneously valuing and negating the importance of the public reflects the fundamental unease with which Hirsh attempts to move forward his central project of masking democratic chaos with democratic sovereignty.