Interpretation and Legal Theory

This is a revised and extensively rewritten edition of one of the most influential monographs on legal philosophy published in recent years. Writing in the introduction to the first edition the author characterized Anglophone philosophers as being ..."divided, and often waver[ing] between two main philosophical objectives: the moral evaluation of law and legal institutions, and...

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This is a revised and extensively rewritten edition of one of the most influential monographs on legal philosophy published in recent years. Writing in the introduction to the first edition the author characterized Anglophone philosophers as being ..."divided, and often waver[ing] between two main philosophical objectives: the moral evaluation of law and legal institutions, and an account of its actual nature." Questions of methodology have therefore tended to be sidelined, but were bound to surface sooner or later, as they have in the later work of Ronald Dworkin. The main purpose of this book is to provide a critical assessment of Dworkin's methodological turn, away from analytical jurisprudence towards a theory of interpretation, and the issues it gives rise to. The author argues that the importance of Dworkin's interpretative turn is not that it provides a substitute for 'semantic theories of law' (a dubious concept), but that it provides a new conception of jurisprudence, aiming to present itself as a comprehensive rival to the conventionalism manifest in legal positivism. Furthermore, once the interpretative turn is regarded as an overall challenge to conventionalism, it is easier to see why it does not confine itself to a critique of method. Law as interpretation calls into question the main tenets of its positivist rival, in substance as well as method. The book re-examines conventionalism in the light of this interpretative challenge.

Preface to the Revised Edition — vii
Preface to the First Edition — ix
1. INTRODUCTION — 1
2. MEANING AND INTERPRETATION — 9
Radical Interpretation — 10
Pragmatics — 17
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Preface to the Revised Edition — vii
Preface to the First Edition — ix
1. INTRODUCTION — 1
2. MEANING AND INTERPRETATION — 9
Radical Interpretation — 10
Pragmatics — 17
A Third Meaning of Meaning? — 21
3. DWORKIN'S THEORY OF INTERPRETATION AND THE NATURE OF JURISPRUDENCE — 27
The Constructive Model of Interpretation — 28
Theory and Practice — 33
The Internal Point of View — 37
The Argumentative Character of Law — 39
Constructive Interpretation and the Principle of Charity — 44
4. COHERENCE, HOLISM, AND INTERPRETATION: THE EPISTEMIC FOUNDATION OF DWORKIN'S LEGAL THEORY — 47
The Reflective Equilibrium — 47
Identity, Fit, and Soundness — 53
The Fish—Dworkin Debate — 55
The Concept of Fit Once Again — 62
5. SEMANTICS, REALISM, AND NATURAL LAW — 65
The Meaning of 'Realism' and the Meaning of 'Law' — 66
Putnam's Theory of 'Natural Kinds' and the Concept of Law — 71
Real Law? — 74
6. CONSTRUCTIVE IDENTIFICATION AND RAZIAN AUTHORITY — 79
Constructive Identification — 80
Constructive Identification and the Objects of Art — 82
Razian Authority and Constructive Identification in Law — 87
7. NO EASY CASES? — 95
A Scarecrow Called Formalism — 95
The Hart—Fuller Debate — 99
The Argument From Defeasibility — 103
Indexical Predicates and Empirical Defeasibility — 106
Wittgenstein on Following a Rule — 112
8. LEGISLATIVE INTENT AND THE AUTHORITY OF LAW — 119
What is the Issue? — 119
Whose Intentions? — 122
What Kind of Intentions? — 126
Why Should Intentions Count? — 132
9. CONSTITUTIONAL INTERPRETATION — 141
Two Basic Questions — 141
Part One: Moral Legitimacy
The Moral Legitimacy of the Constitution — 144
The Legitimacy of Judicial Review — 149
Part Two: Interpretation
Any Sensible Originalism? — 155
Alternative Methods? — 160
References — 171
Index — 177
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