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dworkin's theory of interpretation

9 Dworkin has emphasized that constitutional interpretations must meet a standard of “fit” that would incorporate continuing practices and precedents into a coherent constitutional framework that maintains integrity. 69 This case is simplified because of the proximity of the referent (I could have pointed and made my meaning clear), but this merely aids in our interpretation of the warning. 1249–1262. 171–74; Dworkin, , Freedom's Law, pp. You will want to know not only that you are being warned, but also of what you are being warned. 9–17, 76, 291, 350n10, 350nll; Dworkin, , “Arduous Virtue”, pp. See also, Kay, Richard S., “American Constitutionalism”, in Constitutionalism, ed. There is no longer … If the Constitution requires “equality”, Dworkin believes that the term would refer to our best understanding of what equality morally requires. Cf., Dworkin, , Matter of Principle, p. 172. 19 Dworkin, , Matter of Principle, p. 49. 7–10, 13–14. 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. * Views captured on Cambridge Core between . Even here, however, Dworkin hedges his bets, contending that “the moral reading insists that the Constitution means what the framers intended to say” (ibid., p. 13). 37 Dworkin, , Freedom's Law, pp. Alexander, Larry (New York: Cambridge University Press, 1998), pp. This data will be updated every 24 hours. 64 E.g., Locke, John, An Essay Concerning Human Understanding, ed. 49–50. 13–14, 290–93; Dworkin, , “Comment”, pp. 28 Dworkin, , Matter of Principle, p. 49. Dworkin, , Freedom's Law, pp. Dworkin’s theory supposed that the legal matter usually has the only right answer. Abstract views reflect the number of visits to the article landing page. George, Robert P. (New York: Oxford University Press, 1996), pp. 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. 233–43; Searle, John, Speech Acts (New York: Cambridge University Press, 1969), pp. 196–290; Salmon, Nathan, Reference and Essence (Princeton: Princeton University Press, 1981), pp. Full text views reflects the number of PDF downloads, PDFs sent to Google Drive, Dropbox and Kindle and HTML full text views. We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Black, Max and Peter, Geach (New York: Basil Blackwell, 1980); Carnap, Rudolph, Meaning and Necessity (Chicago: University of Chicago, 1956), pp. 42 Dworkin, , “Reflections on Fidelity,” Fordham Law Review 65 (1997): 1808; Dworkin, , “Arduous Virtue,” p. 1255; Dworkin, , Freedom's Law, pp. His philosophy stresses a ‘Right’ approach over … See also, Dworkin, , Freedom's Law, 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. 132–246. 52 See also, Skinner, Quentin, “Motives, Intentions and the Interpretation of Texts”, in Meaning and Context, ed. 10 Dworkin, , Freedom's Law, pp. Central to Dworkin’s project that to develop a theory of adjudication it is necessary to engage in a constructive interpretation of legal practice. Nidditch, Peter (New York: Oxford University Press, 1975), bk. The game of baseball, for example, is constituted by the rules. 265–80; Davidson, , “A Nice Derangement of Epitaphs”; Hirsch, , Aims and Interpretations, pp. Salter, Alexander William 65 Kripke, , Naming and Necessity, p. 121. 30 The second dimension is particularly important in the case of constitutions. 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”. 50 E.g., Dworkin, , Freedom's Law, p. 36. 116–22; Dworkin, , Freedom's Law, pp. Kogelmann, Brian 1–15. 36 Dworkin, , Matter of Principle, p. 49; Dworkin, , Freedom's Law, pp. 83 The theoretical convergence that Dworkin sees is not toward traditional originalism, however, but rather is toward his own morally infused interpretation of founding intent. See also, Brest, Paul, “The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship”, Yale Law Journal 90 (1981): 1091–1092. 3, chaps. Dworkin has strongly argued that the constitutional text embodies abstract principles. 299, 315; Dworkin, , “Comment,” p. 1250. 18 Dworkin, , Life's Dominion (New York: Alfred Knopf, 1993), p. 145. 313–99; Dworkin, , Freedom's Law, pp. Moreover, their interpretive results can potentially conflict. 7–15. See also, Dworkin, , Freedom's Law, pp. 5 Farber, Daniel A., “The Originalism Debate: A Guide for the Perplexed”, Ohio State Law Journal 49 (1989): 1085; Bassham, Gregory, Original Intent and the Constitution (Lanham, MD: Rowman & Littlefield, 1992), pp. 433–. Note that the image of originalist interpretation described here offers little to those primarily hoping to impose judicial restraint. 15 In fact, Dworkin has sometimes offered precisely such a defense. 11 Dworkin, , Freedom's Law, pp. The use of abstract language creates an interpretive presumption of abstract meaning, but that can only be a presumption. Published online by Cambridge University Press. My concern is with Dworkin's claim that intentions can be known but without any significant historical investigation. 81 Dworkin, , Taking Rights Seriously, p. 135. LePore, Ernest (New York: Basil Blackwell, 1986), pp. 291–305; Dworkin, , “Comment,” in A Matter of Interpretation, Scalia, Antonin et al. 1255–60. 134–136. 79 Dworkin, , Taking Rights Seriously, p. 134. 1260, 1253; Dworkin, , Freedom's Law, p. 9; Dworkin, , “Comment,” p. 116. 231–61; Bach, Kent, Thought and Reference (New York: Oxford University Press, 1987), pp. 66 The descriptivists have replies to these criticisms. 438–43. Dworkin does not sharply distinguish between his textualist argument based on “plain meaning” and his moralist argument based on “soundest conceptions,” but they invoke very different interpretive and theoretical assumptions. 32 E.g., Dworkin, , Matter of Principle, pp. As an independent actor, you may decide to ignore my warning. 34–38. See also, Dworkin, , Freedom's Law, pp. Dworkin has strongly argued that the constitutional text embodies abstract principles. The distinctive feature of this is that it is argumentative. 291–93; Dworkin, , “Comment”, pp.

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