Dworkin – of Taking his crap SERIOUSLY and of Turtles.

These are my notes on how to TRULY understand Dworkin.

Dworkin is really serious stuff. Deciphering Dworkin was tougher than all the jurists in the syllabus put together and more. You really really really have to utilize all the brain juice you have to read Dworkin. It is also extremely difficult because there is no master theory or formula. It is just a big mesh of ideas here and there. So don’t worry if don’t see the big picture. However, if it seems that you understand Dworkin without much effort then either you’re not getting it or you’re more brilliant than Steven Guest.

You really have to focus when understanding Dworkin but the result is quite rewarding and relevant to many aspects of jurisprudence and LIFE. These notes are the result of dwelling on Dworkin for a few days straight and many many much gin and tonic. To gain the full impact (hopefully with just one reading) you have to read these notes slowly. And try to take note of how the theme of finding the underlying purpose repeats itself in various forms. I do not guarantee that I have fully understood him and in fact, I may even be totally wrong… but here is my take on Dworkin.

You may now begin, young padawan...

In one word, Dworkin is all about INTERPRETATION – it sounds really “duh!” but you really have to dwell on what it means to interpret something (e.g. a social practice) and imagine if more than one person were interpreting the same thing – what would the result be? And would all of you be really interpreting the “same thing”, or just your own idea of the “same thing”? This is both Dworkin’s genius and also his weakness. This set of notes is going to be necessarily relatively long compared to my other notes but I do think it is quite intriguing and a super exercise in brain gymnastics. No prior knowledge of anything needed – just common sense and rational thought. But then again, common sense is not so common…

Before you “Dwork” your way through Dworkin, it is of rather crucial importance to have an understanding of the background leading up to his theory.

Background

Modernity was founded by the Enlightenment, of which one main aim was to make it possible for humans to see things AS THEY TRULY ARE. Positivism SEEMED to offer the answer by proffering a “value-free” and totally objective scrutiny of the law (via “description”) so that you can see the truth. But it is clear now, jurists like Hart, were fudging the issue. Harris (1980) says his descriptive sociology is a “sociology fit for Martians”.

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It is clear now that there is nothing truly objective about the social sciences. What is supposedly purely descriptive only is in fact highly interpretive. “Objectivity” is actually infused with the moral and political stance of the observer and there is no such thing as the “detached observer”. Interpretation (hermeneutics) is inescapable.

To quote Wayne Morrison:

“The world does not reveal its structures, its beingness, to us for our theories simply to reproduce of ‘picture’; the truth of our theories was not a reflection of the entries of the reality of the world, but the result of an interactive act of our interpretative faculties as we went about our practical business of living within and belonging to the world.”

So how to you find the “truth”? The answer is: You can’t. You can only find the “truth” in reference to something only that is agreed upon in the first place. In other words, you can only find the truth from one particular “agreed upon” perspective. Modern hermeneutics is the interpretation of action and meaning within a tradition to which that action and meaning belong; i.e. you only interpret the practice from within it and from the context of the tradition of that particular practice only. This is what Dworkin offers. Legal practitioners (insiders) interpreting the meaning of their legal practice from their perspective of the traditions of the practice only. Ascertain the meaning of their practice as it means to them only by asking “what is the point/purpose of the practice to begin with (the underlying theme/rationale)”. No outside observers allowed.

Dworkin was influenced by Lon Fuller who said that the fundamental difference between social sciences and natural sciences is that social activity can only be understood through interpreting it in the light of the meaning it has for the participants.

With this, you may now begin “Dworking” your way through Dworkin.

What was Dworkin trying to achieve?

As is with most people, before they set out doing anything, they actually already have the end in mind. As such, it is easier to understand a jurist if you know what they are trying to achieve. (I think) Dworkin was trying to paint a picture of a legal system that is just, fair, and principled without having to resort to something as controversial as morality, and it achieves this through fluidity.

His theory of constructive interpretation can be visualized like this:

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There are 3 stages:

1. Pre-interpretive (*the usual spelling is “interpretative” but this is Dworkin’s own personal spelling and we shall use it)This stage is where you identify the practice you want to interpret.

2. InterpretiveThis is where you come up with a variety of reasons as to why there is such a practice and pick a couple of the more likely ones.

3. Post-interpretiveThis is where, based on the most likely reason you picked, you modify the rule/practice to suit currents needs to that it can “grow”.

For a simple example of this, see the “hat-doffing” example in the subject guide. It also helps in understand Dworkin to visualize this example:

Imagine 2 players are playing chess. And one irritating player is deliberately trying to distract the other by smiling like an idiot. The other player protests and complains to the referee/umpire. However, this situation is not covered in the rule book. The referee then has to think: ‘what is the point of playing chess to begin with?’ and comes up with various theories/reasons like ‘to pit wits against each other’, ‘to move pretty pieces on a board to make a pretty pattern’, ‘to assert one’s (intellectual) superiority in a civil and gentlemanly manner’, etc. Then based on the reason he thinks most likely, he then decides whether smiling like an idiot should be allowed or not.

Thus Dworkin is asking the legal practice: What is the point to all this practice? What is the purpose? What reason do we have for having law? And according to him, this purpose is already latent in the activities of the participants. Dworkin is trying to tell the “truth” of law by working with an insider view of law and is concerned to retain “fidelity” to the material. Modern institutions and practices have histories; there is no one dominant perspective but we must treat them as if there was a coherent underlying rationality.

For Dworkin, law is speaking to us and is written by the community personified. Law embodies commitment integrity and pursuit of truth. We must believe in the possibility of a right answer to legal and moral problems, and nothing irreconcilable and although conflict is inherent, contradiction is not. The practice of law involves reflection, reflexivity, theoretical clarification and criticism, the resolving of disputes and arguments, researching answers, ‘finding the law’, and ‘arguing the case’ – law is an interpretive practice.

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How to interpret

Hercules

Hercules is a HYPOTHESIS only (don’t argue in exams that Hercules doesn’t exist, isn’t realisitic etc… because that was not the point of Dworkin positing Hercules.)

Hercules is a standard of measurement for good or bad decisions. He is a lawyer of ‘superhuman, skill, learning, patience and acumen’ who is fully conscious of his constitutional responsibility.

His constitutional responsibility is that the constitution confers autonomy upon the courts and if he accepts the settled practice (the autonomy) of his legal system, he must accept some general political theory that justifies these practices – i.e. the whole point or the purpose of the system. (For America, according to Dworkin, the whole point of the US legal system is to protect rights or to protect democracy therefore justifying judicial coercion in accordance with legislation). *this is on a large scale; it can go down to a smaller scale, e.g. the whole point of contract law which would be the theory of consideration.

The main thing that Hercules does is that he can produce theories underlying the accepted practices of the legal system and of legal rules. So, based on the case/issue at hand, Hercules will construct political theories, which are justifications for the rules relevant to the matter at hand. Then if there are two or more theories that fit equally well, then Hercules can look to the remaining rules of the constitution and then see which theory is a better fit. A successful theory will present the (supposedly conflicting) rules as a unified coherent body (by reference to the underlying theme/rationale).

Like the Riggs v Palmer case, the rule if literally constructed will mean that the murderer gets to benefit from the will of the testator whom he murdered. This does not make sense. Therefore the judge asked himself, “What did the author of the Wills Act intend? Did he intend this?” and then he takes a step back further and asks “What is the underlying rationale beneath all this rules and the common law?” He found that there was a principle that one should not benefit from his own wrong, if he could then that would go against the whole point of this legal system, and he concluded that the author of the Wills Act could not have intended it also. Thus, the murderer was not allowed to benefit.

Dworkin clearly says also that this does not mean that all judges are supposed to reach the same conclusion. They are supposed to find a theory that has “institutional fit” reconcilable with political and moral philosophy. Different judges have different perceptions of these things but some theories and preferences will be superior that will fit overall coherence of society’s

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moral and political development. In time, these superior theories will be settled law. Legal development is an unfinished project of shaping social interaction into (a bunch of) principles.

‘One Right Answer’ thesis

Law is actually an attitude of mind, and this attitude is argumentativeness. If two people are arguing, that means that each thinks that they are right. That means that in their mind, there is a right answer to whatever it is they are arguing about. The fact that they are arguing implies that they have accepted that there is a right answer to be found. Thus the argumentative nature of law implies that there is law to find.

Thus the legal practice necessarily involves the acceptance of the idea of a right answer. In a hard case, the rules provide no obvious answer. So ask what is the rationality of the various aspects to the social practices involved? Then find your answer from there.

Judicial Practice aims for Principled (articulate) Consistency (not mechanical consistency).

We all know that a previous authority sets the standard. However in a hard case, the standard can’t be applied straightforward. You must consider what this standard means in the new case. This gives the judge only a weak discretion and this is an acceptable judicial practice which leaves no gap in the law. The answer can be found in the arguments presented by the lawyers and the principles contained in the precedents. In contrast with rules, principles have a dimension of weight and are not destroyed when conflicting. Rules operate in an “all or nothing fashion” – either they apply or they don’t.

Law as Integrity

Dworkin talks about 3 different types of conceptions of law.

The conception of law as:

Conservationism – look purely are past decisions and apply exactly (backward looking)

Pragmaticism – screw precedents entirely and forget about them, let’s just be 100% practical and deal with the matter practically (forward looking)

Integrity – a combination of both backward and forward looking elements. It establishes a justifying connection between past decisions and present coercion. Through interpretation it will show a relationship between law and morals. (*I think it ties in with the arguments of “fit” and “substance”)

Law as integrity will thus be like a narrative of the unfolding political story of this particular society.

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Law as integrity is displayed in cases like Riggs v Palmer. Interpreting the statute clearly would not give a fair outcome, i.e. it would not fit with the political morality of the society. The judge then went and asked himself what was the intent of the author of the statute, i.e. the spirit of the statute. He found that the spirit of the statute could not intend such a result and held that ‘we need not… be much troubled by the general language contained in the laws’. Instead one should ask what the “real statute” is and then he found his right answer.

This reminds me of the poem by Kahlil Gibran that Dr Anand handed out which talks about thoughts, will come out “half-murdered” when expressed in words. The poem used the imagery of a bird trapped in a cage; the bird being the true thought or expression and the cage being words that end up trapping true thoughts. Thus, when reading a statute, we only see the cage… you must open the cage and talk to the bird and ask the little birdie what it wants to say. Tweet, tweet.

“Fit” and “Substance”

A legal argument is always a tension between two dimensions of argument:

A “fit” with settled law; and

“substance” – an issue of political morality.

Dworkin was heavily influenced by Lon Fuller and Fuller did talk about a morality of aspiration whereby society is at its best and is excellent. I personally think that Dworkin thereby meant political morality to be the morality of aspiration of the particular society that the legal system is in. It is definitely not some political manifesto of some political party whatsoever although there could be a connection between them. The idea of a political morality tends to be more encompassing in nature and represents the aspiration of the people in general but not the type which religion espouses that have utopian connotations. For example, the political morality of Nazi Germany would have been ideas of the superiority of the Aryan Race. Thus a Nazi judge must make his decision “fit” with past precedents and also help further this political morality of the Nazi society.

But otherwise in a normal moral society, the usual kinds of political morality will contain virtues like “fairness”, “justice for all”, “reasonableness”, etc. These are the “substantive” arguments.

The law is an unfinished project – The Chain Novel

This ties in with law as integrity as well (see how Dworkin puts his stuff everywhere?). Interpretive judgments combine backward and forward looking elements. Hercules must

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impose order on all the backwards and forwards that is going on in law. He must make sense of what has gone in the past so that this project can be developed and given life for the future.

This is very much like writing a chain novel where the next writer (building upon the work of the previous writer) must consider factors like the theme, plot, coherence, and characterization. It is the same for the law. The new writer has an obligation to write something that fits while adding new material (again to do with “fit” and “substance” – what did I say about Dworkin throwing his stuff everywhere?).

This tells the story of society’s development and growth in modernity. The judge must strike a balance and neither put too much faith in the past nor rush to fulfil community goals/aspirations. Integrity is the inner morality of law (see the influence of Fuller on Dworkin?). Law as integrity links community aspirations and individual professional concern. This is constructive interpretation.

Summary of “How to interpret”

Before this, we saw how an “interpretive” stance is better than the flawed “descriptive” stance. Since interpretation can be so subjective and relative, Dworkin avoids a nihilistic relativism (self-defeating – i.e. pointless since everybody’s equally valid and there’s no right or wrong etc.) by restricting interpretation only from the insider point of view and what meaning the practice holds for them only. That way, the “truth” of law can be ascertained (at least where legal practitioners themselves are concerned). So he espouses a theory of “constructive interpretation”.

And how to do this interpretation is as follows:

*Note: this is my view of how Dworkin says we should interpret and I’m trying to compartmentalize as neatly as possible Dworkin’s big mesh of stuff here and there. He throws in rights as trumps and all that but I’ve put that in a different “compartment” for later. The point is that I may be wrong but this is the neatest way to “Dwork” and to criticize him later.

1. You must try to be like Hercules and construct political theories (justifications/reasons) that underlie the bunch of rules that are relevant to the issue at hand.

2. In doing so, you must accept that there is a right answer because the argumentative nature of law implies that there is a right answer to find.

3. The law is consistent but not in a mechanical way but in an articulate way. Try to find the “real statute” or common law maxims as the case may be. Principles can conflict

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due to their having a dimension of weight. Which principle overrides is a matter of “substance” wherein you take into account things like political morality.

4. After doing so, your decision must have “integrity”. It must “fit” past decisions as well in addition to it having “substance”. Thus, the right answer is one that retains “fidelity” to the law yet promotes the aspiration of the society that it serves. Or simply put, puts the law in the best light.

5. Law is like a chain novel. This is Dworkin’s constructive interpretation.

Political Morality

Political morality features quite prominently in Dworkin’s theory and there are many ideas as to what it is, but I think it is roughly this. The fact that it is called “political morality” therefore means that it is definitely not “morality” like we mean in the everyday sense, e.g. ‘be a good person’ etc, but it does influence this concept.

Like I mentioned earlier, it seems to stem from Fuller’s idea of the morality of aspiration. It is not a moral standard per se but rather representative of the aspiration of the people regarding the way they wish to be governed and what they want to achieve as a community rather than individually. Political morality can be determined by asking ‘what was it that the people instituted the legal order for in the first place?’, ‘what were they trying to protect or guarantee?’, ‘were there any sort of rights that existed before the legal system that they wanted enshrined?’

Thus, you can see that political morality differs from society to society. And the political morality of the US seems to be, as Dworkin put it, “rights as trumps”. That is what the Americans hold as fundamental and important. The political morality of a fundamentalist Islamic state could very well be the opposite, e.g. “Quranic principles as trumps over individual rights”. Perhaps Malaysia’s political morality could be, assuming BN governs for another 100 years, “Malay rights as trumps”.

However Dworkin talks so strongly about “rights as trumps” as if it was an essential feature in his theory. I personally feel that it is only a political morality that he espouses which is particularly true in the US but tries nonetheless to extend it to states that practice Democracy. But all in all, I think it is just the political morality of the US but since he features it so prominently, we will consider it below.

Rights as trumps

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For Dworkin, rights must trump over policy considerations. This is the basis of any or most democratic states. I’m sure we are all familiar of the arguments of separation of powers and why the judge shouldn’t give priority to policy because he not an elected representative etc. The judge’s job is to determine the rights of the parties before him, not legislative policy considerations, and enable individuals to have this secure social space (the court) wherein they do not become pawns of utilitarian/policy objectives.

In allowing rights to trump, the judge displays moral integrity and is faithful to the rights of the parties. Principles are an internal and integral part of the law and law is a seamless web of principles, and the underlying rationality of all these principles is the protection of rights (at least in a democratic state).

Dworkin’s “rights thesis” has 8 propositions:

1. Every legal system has a dominant political philosophy (in US: rights as trumps) that gives coherence and unity to it (the legal system).

2. This philosophy is expressed in the values and traditions of the law. You can find it there.

3. A political system (perhaps he means society) is also made out of legal principles which express the dominant political values

*A funny example would be The Snail Darter Case where the court ordered work to stop on a nearly completed dam which cost US$100 million in favour of the protection of the Snail Darter conferred by The Endangered Species Act 1973. The Snail Darter is a 3 inch fish of no particular beauty or is of any significant biological or ecological importance. The court decided that the rights of an ugly 3 inch fish of no importance should trump over the building of a US$100 million dam. So the principle here is that everyone (or thing) must be afforded equal protection under an Act that confers it to them – this principle is an expression of the underlying political philosophy of the US society that rights must trump (the dominant political value).

4. Rules differ from principles in 3 ways:

Principles emerge slowly (as opposed to rules) and are refined, extended, amended, reduced as cases come before the court.

Principles have a dimension of weight; they do not apply in an all or nothing fashion.

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Principles can conflict and offer guidance in opposite directions. This is just a matter of judicial craftsmanship.

5. The judge does not have an uncontrolled discretion. He is constrained by principles and the political morality of society.

6. There is always a right legal answer. The argumentative nature of law implies it.

7. The judge must, as far as possible, emulate Hercules. He is the best interpretation of actual legal reasoning.

8. Every judge has the obligation to aim for the right answer.

Evil Legal Systems

As we have seen how we are supposed to apply constructive interpretation, Dworkin still adds a further dimension to his theory. In applying constructive interpretation, you may get the grounds of law, but these grounds nonetheless have varying degrees of moral force to it.

*This, I think, is Dworkin’s way of trying make his theory fit to accommodate evil legal systems as well. Because of the way he has described “political morality”, an evil society’s political morality would still be just as valid and important as one from a moral society. But he wanted, from the beginning, to paint a picture of law as very fair, justice, principled, etc. Thus he now adds another element to his theory (which seems quite groundless) and talks about law, despite being validly identified by constructive interpretation as the theory that puts it in the best possible light, as also having a moral force.

According to him, producing theories/justifications from grounds of law does not also mean that you thereby endorse it (but then why produce them in the first place?) Thus a Nazi judge who produces, based on past decisions and arguments of substance, produces “full-blooded” political theories (of Aryan superiority) is not a 100% bound to carry it out. Any structure of community power will have some moral force. And determining whether the community has the right to use this coercive force depends on moral arguments.

Thus, Nazi law is valid law but the judge is not inevitably bound to carry it out. He has to determine the moral force of such a law first.

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How to criticize Dworkin!

*I shall leave the standard and rather weak criticisms of Dworkin out. At this point you may want to stock up on brain juice or however/whatever it is that gets your brain running.

Dworkin’s enterprise is about constructive interpretation. But what provides the foundation for this enterprise? The answer is… TURTLES!

[An Englishman] having been told that the world rested on the back of an elephant which rested in turn on the back of a turtle, asked… ‘What does that turtle rest on?’ – ‘Another turtle.’ – ‘And that turtle?’ - ‘Ah, Sahib, after that, it is turtles all the way down.’

(Clifford Gleetz, The Interpretation of Cultures, 1973:29)

Dworkin’s interpretive/hermeneutic framework manages to avoid relativity (nihilism) by keeping the idea of purpose as it means to the practice only. He states that an ‘interpretive attitude’ necessarily assumes that practices have value, or has a point to it. The point of the practice is made clearer and the interpretive attitude thereafter imposes meaning, by seeing it in its best light, and then restructure/reform/modify it in light of that meaning.

The 3 stages used (once again) are:

Pre-interpretive – this identifies the practice to be interpreted.

Interpretive – justifies why the practice is worth continuing.

Post-interpretive – reform according to established justification. This is a self-referential reform whereby the justification comes out internally from the practice, not from outside observers.

However, the problem is that “identifying what is law”, i.e. the practice to be interpreted is subject to so many diverse views. How do you know whether you have correctly identified the right thing? Identifying law again is subject to interpretation, i.e. depends on whose interpretation.

Dworkin’s reply is that we work from an internal perspective and the interpretive practice is founded on the basis of general agreement (consensus) among the internal players (legal practitioners) of what law is about. His interpretation, he claims, is true to the nature of practice, and excludes sceptics (outside observers).

We shall show that this is not true and act like we are smarter than Dworkin. We need to look at the first 2 stages of the interpretive process.

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1. Pre-interpretive – identifying the practice/laws (the “object”)

The process of identifying itself is an interpretation. There is no such thing as objectively identifying something like a social practice. Nonetheless, Dworkin avoids this problem by saying that we identify it by constraining our interpretation of this object as “law as identified by the traditions and history of the legal practice”. The flaw of this argument is as follows:

First, the paradox of interpretation:

You cannot begin interpretation without established facts.

There can be no facts without interpretation (because the process of identifying facts is an interpretation itself).

Dworkin admits at the very beginning itself that a value-free (objective) identification is impossible; it is implicitly value laden. So in reality there is no pre-interpretive stage. However, he goes around this by saying that we identify the object (law) by the consensus of what the law is within the interpretive community (legal practitioners). BUT SUCH A CONSENSUS MAY NOT EXIST.

This consensus is a defined object that is constrained by the requirement of fit (has to fit) between the interpretation (of what the object is in the first place) and the (legal) practice. Therefore you need to know the essential features of the practice (which again is another pre-interpretive stage subject to the same complex problems). But the practice does not announce to everybody what its essential features are; you have to again interpret what those features are.

The definition of the object and making a good fit is mediated by theory. This is hardly objective even if you are only working from the “internal” perspective. Dworkin refuses, or perhaps cannot, analyse the conditions under which this supposed consensus comes about.

2. Interpretive – the defined practice integrated with a purpose (or trying to discover the point of the practice)

The aim of such an integration or interpretation is to ask: ‘Does the theory/reason make the object the best it can be?’

But the object itself was an interpretation of the interpreter in the first place therefore already imbued with the interpreter’s own preconceived notion of ‘what is the best light’ from the very beginning. Thus, the object was identified based on and influenced by what the interpreter already had in mind as ‘its best light’.

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Dworkin realises this internal disagreement of interpretation and says that it is in fact desirable but puts an operative bind/restraint on the interpreter to find a good fit by between valued purpose (what the best light is) and the paradigmatic features of the practice (the object).

So there are 3 things here:

1. A good fit (which purpose puts the object in its best light)

2. Identification of the pragmatic features (the practice to be interpreted/object)

3. Valued purpose (the point/purpose of the practice)

This can only work if items 1 and 2 are conceptually INDEPENDENT of the hypothesis of item 3. However, people being people, this is not possible. All 3 items are all interpretive and are interpreted BY THE SAME INTERPRETING MIND. No strong distinction, by the interpreter, of these operations is possible. The standard of fit that one adopts will reflect one’s own judgment as to what lends value to the practice.

Thus, the distinction between correct and false interpretation collapses and in fact there is no interpretation; only invention.

So Dworkin’s solution of excluding external sceptics does not salvage his thesis from nihilism. He excludes the external sceptics by calling their perspectives as “silly”, “wasteful”, “confused”, and “to no point”. But at the least, while the external sceptic may defend and hold his own interpretive stance as passionately as the internal practitioner, the external sceptic does not maintain that his perspective is true understanding; but Dworkin does so. We must thereby, according to Dworkin, assume the existence of a right answer unquestioningly. His arbitrary silencing of outside opponents renders his own thesis arbitrary and a mask for interest based interpretation, i.e. it is actually the theory of what Dworkin’s thinks is law. The truth of his theory is therefore suspect and for Dworkin... it is turtles all the way down.

(* you may applaud me now :D)

To summarise this criticism:

1. Pre-interpretive:

Identifying law itself in an interpretive act. But Dworkin counters this by saying we shall take law as determined by consensus among the legal practitioners – thereby shutting out any external perspectives of what law is. Therefore we have a working definition of what law is to start our interpretive process.

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So since Dworkin says we shall use “consensus within the legal practice of what is law” to identify law, we need to find/determine this “consensus”. To determine it is to find a good fit between the interpretation of “what is law” against the essential features of the legal practice.

But the legal practice does not announce what its essential features are. To determine what these essential features are is yet another interpretive process.

2. Interpretive

Supposing now we have “identified” the object (law) to interpret, we now need to ascribe value to it; in other words, come up with theories as to its purpose. In doing so, we need to ask: does the theory make the object the best it can be? i.e. come up with a list of “purposes” and find the one that “puts the object in its best light”.

However the “identified” object was an interpretation to begin with. Won’t the person “identifying” the object therefore “identify” it according to an already preconceived theory of “the best it can be”? Thus, already having the theory in mind, to him, that makes the object the best it can be, his “identification” of the object is biased. He will “identify” the object as one that already suits his pre-conceived theory.

Dworkin tries to restrict this by putting a bind on the person by saying that he has to find the best fit between “what the best light is” and the paradigmatic (essential) features of the object.

This can only work if 1. identification of the essential features of the practice, and 2. “what the best light is” are conceptually independent (not influenced by or influences) from the process of coming up with a list of purposes. This is really not possible. One’s idea of “what the best light is” is really a reflection of his judgment of what the purpose of the object is which he already believes even before starting all this.

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