How should we think about law? Is constructive interpretation necessary and can it generate truths?

Abstract

One of Ronald Dworkin’s most important contributions to legal theory is the claim that anyone wishing to make sense of legal practice must interpret it. He also claims that to interpret legal practice is to evaluate it. Dworkin calls his model of morally evaluative interpretation ‘constructive interpretation’. From Law’s Empire on, Dworkin provided arguments designed to establish the necessity of constructive interpretation (NCI). Though it started, and is best known, as a claim about legal practice, Dworkin came to defend NCI as a claim about the evaluative domain generally. In the first part of my thesis, I argue that Dworkin’s original argument for NCI, presented in the opening chapters of Law’s Empire is, by itself, insufficient. I make three claims. First, I claim that Dworkin’s reliance on the phenomena of theoretical disagreement and the interpretive attitude brings with it a number of questions that are not answered in Law’s Empire. Second, I claim that Dworkin’s argument does not exclude the possibility of alternative methodologies in philosophy of law. Third, I claim that Dworkin’s methodology in Law’s Empire is not consistent with his own methodological claims. I suggest that these three claims are important because, as I will attempt to show, Dworkin’s methodological imperialism is crucial to his theory’s epistemic pedigree. The interpretive character of Dworkin’s theory invites a series of sceptical worries specific to it. These are far more pressing in the presence of competitor theories constructed around standard norms of theory construction. Dworkin’s methodological strategy is winner-takes-all: the apparent epistemic advantages of other theories are unimportant if Dworkin can show that only his theory can make proper sense of legal practice. In the second part of my thesis, I suggest that some of Dworkin’s later arguments can plausibly be understood as providing the sort of supplementation the deficiencies of his early arguments for NCI seem to require. If the argument of my thesis is correct, the inadequacies of the view as it is originally presented motivate and shape the development of Dworkin’s later views: not just about constructive interpretation, but (relatedly) about the possibility of second-order theorising about the evaluative generally and evaluative truth. Though I do not think Dworkin’s subsequent refinements will resolve the difficulties to which I point, I do think understanding the troubles associated with Dworkin’s argument as he presents it in Law’s Empire holds the key to understanding some deep fissures in his later work. I argue that Dworkin’s supplementary arguments purport to bolster his original argument for NCI by demonstrating the impossibility of external theorising about evaluative practices, including law, politics and morality. I investigate Dworkin’s arguments against externality and conclude that they cannot do the work Dworkin requires of them. So, I conclude, Dworkin does not establish the necessity of constructive interpretation. Whether or not Dworkin can establish that constructive interpretation is necessary, he needs a story about how it can generate truths. In the final part of my thesis I argue that the story Dworkin provides is confused. I argue that Dworkin’s interpretive theory of truth is beset by serious difficulties. These difficulties are brought into stark relief as Dworkin attempts to reconcile his account of truth in the evaluative domain with his view of truth in the nonevaluative. I argue that the theory of truth Dworkin provides is not only mistaken, but is also, given his methodological commitments, the wrong sort of theory. I argue that this may undermine the viability of the constructive interpretive enterprise, whether in law or evaluative theorising generally. I conclude that Dworkin is mistaken about the both the need for his project and its capacity to deliver truths. I hope to show, however, that the way in which Dworkin is mistaken is not just interesting (and important, given his influence) but illuminating. Dworkin argues for a particular way of doing evaluative philosophy that denies other theorists the logical space from which to engage in external theorising about the evaluative. If my thesis is correct, there are deep and pervasive problems in his methodology. I will suggest that Dworkin engages in precisely the sort of external theorising he claims is not possible. He is, for this reason, guilty of a sort of performative contradiction, but the way this contradiction arises is helpful for understanding some of the very problems on which Dworkin hoped to shed light. In this way, I hope to show that Dworkin’s failures amount to a unique success.