In the society the law are very vital in that they serves as the social mediators of relations between people in different aspects of life such as politics, economic and social aspects. The law serves as the skeleton, in that they control what we do, the right time to do and the right manner to do it. The society would be chaotic in absence of the rule and guideline. The individuals would do whatever they feel is good for them irrespective of whether their acts affect directly or indirectly the life of others.
The most important aspect of the law is how to interpret them; interpretation serves as the central and fundamental aspect of law. Interpretation remains a widely contested aspect of law in that the conception of what counts as law may depends on proper understanding and interpretation by various scholars. Interpretation serves as the most perspicuous way to explain the phenomenon of human understanding (Dworkin p.8). The proper law interpretation requires the scholars concerned have good agreement with legal practitioners the most features of legal practice.
This essay paper examine the Empire Dworkin defends his own interpretive conception of law, that is law as integrity applying the method of constructive interpretation to the law. Also the essay paper will examine the Dworkin contrasts law as integrity with conventionalism and pragmatism.
Law as integrity
According to law as integrity Dworkin consider that the judges don’t make or find their own law instead they interpret what is already set through careful technical interpretation as an attitude or manner to issues being interpreted and solution is always sought by taking an interpretive approach to law as social practice. To him interpretation of law should be aimed at understanding its purpose in the best way possible. Judges are not left to their own devices when doing their own interpretation but they have adhere to two dimension applied in judicial interpretation. The two dimensions applied are fit and justification.
Judges tries to interpret the law in such a way that how they interpret them fit or correspond to the past decisions and the body of law as a whole. This implies that the judges first analyze the past decision and integrate them to the present interpretation. In addition the judges also interpret the law in a way which best justifies them and the entire body of law according to the best available standards of political morality.
Dworkin in his effort to show how judges consider the law as integrity, he takes the interpretation of law to a novel written by many authors. In his view although different writers have different personal view on how best to set the plot and the theme of a novel, they focuses their attention to the plot and the established by previous writers and they have sometime to give up their personal view in order to write in a way that give the novel most coherent and internally consistent.
Dworkin qtd.in Shytov, pp 51-52 states that;
“Creative interpretation aims to decipher the author’s purposes or intentions in writing a particular novel or maintaining a particular social tradition just as we aim in conversation to gasp friend‘s intentions in speaking as he does.
The judges are required to treat the previous judges and legislators as the past authors who hast vast knowledge concerning the interpretation of the law hence the current judges and interpreters borrows the past vast knowledge in the effort to improve them and come up with the best possible interpretation. Dworkin qtd.In Shytov p. 65 argues that
“The principles require judges and registrations when faced with hard cases to find the implicit principle underlying the past decisions, and on the basis of such principles make fresh rulings”
On the other hand the Dworkin also give heavy weight on the legal positivism that explains that the judges are supposed to take the law as they are. This means that the judges should apply the law without coming up with their own interpretation which may be aimed at favoring their own ethics and politics.
Constructive interpretation works under the principle of charity that requires one to use the devices and presumption in order to understand another person conversation. Dworkin claims that; “Constructive interpretation is a matter of imposing purposes on an object or practice in order to make of it the best possible example of the form or genre to which it is taken to belong.” Unlike conventionalism, Dworkin give credit to law as integrity in that it acknowledges the past political decisions, interpreting statues or previous cases and through this give the judges the power to be creative by applying the past principle hence coming up with fresh ruling.
Relationships between law as integrity and constructivism
Both law as integrity and constructivism are related in that the two seek to establish the best interpretation of the law. Law as integrity consider that the judges don’t make or find their own law instead they interpret what is already set through careful technical interpretation as an attitude or manner to issues being interpreted and solution is always sought by taking an interpretive approach to law as social practice. On the other hand, Constructive interpretation is a matter of imposing purposes on an object or practice in order to make of it the best possible example of the form or genre to which it is taken to belong. This shows that the two aims at looking the best interpretation that the law breaker can receive fair ruling.
Dworkin contrasts law as integrity with conventionalism
Dworkin in his attempt to explain his theory of the legal reasoning- the doctrine ‘law as integrity’ by giving opposition to conventionalism and legal pragmatism. Dworkin describes the first rival conception as conventionalism. According to conventionalism theory the law interpretation should be guided by different or separate norms accepted by the society but they are not in any way included in the guideline followed by legal practitioners in their effort to come up with their interpretation. According to him such social convections has the power to make and decide how to make law interpretation.Dworkin qtd in Shytov p. 63 states that;
“The essence of conventionalism consists in the requirement that judges sanctioning the use of public force should be guided by the idea and legal rights”
This is the concept that the Dworkin choose for his critics of conventionalism. He claims that strict conventionalism does not provide enough consistency with previous decisions. This is because strict conventionalism, the judges are liberated from legislation and precedent in hard cases which implies that judges have freedom to make judgment without having to refer to previous judgment which aims at facilitating the consistency. In conventionalism the consistency is likely to be lost which would lead to unfair way of dealing to criminal offences in favor of others.
Shytov, 2001 p.64 concludes that;
“Our judges actually pay more attention to so called conventional sources of law like statues and precedents than conventionalism allows them to do.”
On the other hand Dworkin also criticizes the technique applied on reading legal materials employed by conventionalism. He claims that the judges in their effort to find meaning of the words do not put into consideration the context, in that they tend to assumes and accept without questioning what the law giver intend to give. In this case they tend to assume what the law has stated is fully acceptable to the members of the public without considering whether in one way or the other violate any constitutional provisions or any widely held view about fairness or efficiency in legislation. Dworkin considers the probability of the unfair ruling to the criminal since the judges do not extend any reason apart from those explicitly given in legal materials which might be tally misleading. In addition to this the judges are left prone to being unable to find correct judgments and solution to hard cases. Judges therefore must exercise his discretion by employing extralegal standards. Dworkin 1986 p.116 states that
“The law is law; it is not what the judges think it is, but what it really is”
Dworkin contrasts law as integrity with pragmatism
Legal pragmatism encourages the judges to decide and act on their own views. Legal pragmatism view trough this there is possibilities of serving the community better bringing it closer to what really is fair and just hence a happy society. This interpretation of law completely opposes other program such as law as integrity that requires the judges to refer to past decisions already made by judges and the law legislature. Legal pragmatism claims that there is no interrelationship between the judicial decision and political decisions of the past. The interpretation further views considering the past decision as a tool to navigate the use of force in law application or applying coercive force which denies the people their legal rights.Dworkin qtd. In Shytov p.66 Legal pragmatism states that “…it take bracing views that they are never entitled to what would otherwise be worse for the community just because some legislature said so or a long string of judges decide other people were…. and every community has paradigms of law, preposition that in practice cannot be challenged without suggesting that under the title of legal pragmatism Dworkin criticizes corruption and ignorance.”
Dworkin in his effort to defend law as integrity, he captures the conflicts between a principle and policy. To his view, the policy must be settled in favor of principles. Dworkin distance himself from the notion that judges adhere to principles rather than policy in development of the doctrine of law as integrity. Law as integrity is in disagreement with conventional backward looking and pragmatic forward-looking in that they both interpret contemporary legal practice seen as an unfolding political narrative. A casuist’s vision is in agreement to Dworkin views of law as dynamic system influenced by past decisions, general intellectual environment, common language etc which give the judges to power to exercise their moral reasoning thus making their ruling fairly. The difference from the approach of agapic casuistry is brought by Dworkin view that gives judges the ability to consider the moral they think would make their ruling the best. Dworkin puts integrity as a virtue at the centre of interpretation while the Agapic casuistry to stand for ethical love developed within Christian ethics as fundamental to principle of judicial decision making.
In the society the law is very vital in that they serve as the social mediators of relations between people in different aspects of life, the most important aspect of the law is how to interpret them; interpretation serves as the central and fundamental aspect of law. The research paper examines various interpretations as depicted by various scholars and tries to contrast law as integrity with other interpretation such as conventionalism and pragmatism. Dworkin strongly disapproves with judging in an unconstrained manner and present a third theory of law which he believes not only better represents what actually happens when judges decide cases but also a morally better theory of law.