2. introduction
For Dworkin, judges are always constrained by the law: there is no law beyond
the law.
Dworkin’s conception of the dominion of law is of a gapless legal universe,
where in every adjudication, even in the so-called “hard cases” there
are controlling standards which judges are obligated to follow. The law is a
seamless web, in which there is always a right answer. According to the
Dworkin, hard cases mean, the cases where cannot be resolved assisting
constitutional or statutory provisions of judicial precedent. freemen specified
that hard cases where arguments exist as to what is the best understanding of
law; clear cases are those where no such doubts exist.however, Hart argued
that, in Britain, Judges able to act as deputy legislature adopting secondary
rules in order to resolved hard cases. as the arguments made by Hart, the
decision of judges would become laws. how would such decision become laws?
the answer is judges are permitting to adopts secondary rules.it cannot be said
by judges that they are making laws.there shall be standard must follow by
judges when they are deciding hard cases. according to Dworkin there at last
one right answer to every cases. thus, as his words, ' law is seamless web in
which there always right answer’.
3. evolution of interpretivism
Legal interpretivism was developed in the late 20th and early 21st centuries. It emerged
into a legal world dominated by two ways of thinking about the philosophy of law
namely legal positivism and natural law theory. Interpretivism has some similarities to
both schools of thought and some important differences. It has sometimes been
thought of as a middle ground between the two. Natural law theory is the older of the
two schools of thought. But there is an underlying natural law that serves as the
foundation for manmade law. Natural law consists of basic principles of fairness, justice,
and equity that transcend cultural boundaries, and manmade or "positive" law should
respect these. In some traditions, natural law is believed to proceed from divine or
supernatural sources, while others see it as inherent in human nature. Dworkin
integrates morality both into the choice of legal theory and into the legal argument
itself. In particular, this paper will explore Dworkin’s theory of Legal Interpretivism and
how it appropriates the prior concepts of Natural Law Theory and Legal Positivism. For
Dworkin, the goal of a lawyer is to construct law through his profession. Dworkin then
uses this professional objective of “what lawyers and those versed in the law aim to
build” as a denition for the law. This important responsibility is vested in individuals with
a love of those subject to the law – society’s ideal lawyers.
4. Interpretative Approaches to Law : To resolve legal disputes, courts often need to interpret
sources of law such as constitutions and statutes and precedents, and they need to interpret
the communications by which parties try to order their own and others' legal rights and duties
(such as leases and wills). Ronald Dworkin argues that law is an 'interpretive concept', by
which he means that any true statement of law is true because it follows from the best
interpretation of the legal practice of the community. Interpretivism about the nature of law is
the view that legal rights and duties are determined by the scheme of principle that provides
the best justification of certain political practices of a community: a scheme identifiable through
an interpretation of the practices that is sensitive both to the facts of the practices and to the
values or principles that the practices serve. Interpretivism has been developed by Ronald
Dworkin in a number of publications over 30 years or so.
INTERPRETIVE APPROACH OF LAW
5. INTERPRETIVE APPROACH OF LAW CONT…
• Interpretivism as developed by Dworkin includes the claim that interpretation
is sensitive to values in the way just explained, and that it is fundamental to
the nature of law. Many theorists accept that, given the law, interpretation
that is sensitive to values is necessarily employed in its application. For
example, the rationale of giving up one's seat to a senior in the name of
courtesy may be to show respect; if so, the display of respect would
constitute the point of the practice, so that, if faced with the question what
the practice requires that one do in a different context, the right answer
would be sensitive to that point. For another example, which greatly
simplifies a far more complicated practice, the rationale of awarding
compensation for injuries caused by defective products may be that
manufacturers should bear the cost of the risk associated with the use of the
relevant products. Such a rationale would justify awarding damages when
such injuries occur, whether or not the manufacturer is at fault — i.e. would
justify no-fault liability.
6. CASE STUDY
Riggs v Palmer (Dworkin 1977/32)
Francis palmer gave his majority of estate to his grandson Elmer Palmer by last will. However,only lesser
amount of property gave to Mr. Riggs and Mr. Proston. Elmer palmer
administered poison to Francis palmer due to the fear about that Francis Palmer will alter the last will in
future. As a result, Francis Palmer was died.
Elmer Palmer charge for Murder
There was no statute prevent Elmer palmer for being successor of Francis Palmer’s last will .
The plaintiff however argued that if court allow to enforce last will of Francis Palmer without altering, it
would be inconsistence with the society. The court said that although the legislature was not adequate the
principle that ‘to a willing person, no injury be done’ a value society seesas representing legal justice, was
applicable.
7. CASE STUDY (cont)
Here, its mean that if you consent to the harm then you may not seek to claim from it. A
Palmercommitted to harm; he should therefore not be entitled to the compensation of the will.
In such a case, as Riggs the ‘right answer ‘was ostensibly unattainable though following statutes.
Therefore, different legal method was required to find out the right outcome than themorality interpret
the merits of the statutes. One method addressed by Dworkin in order toclearness about hard cases. Call
as; interpretivism.As Dworkin said, the right verdict can be reached to settle hard cases by rendering the
sourcesso that or result become clear
8. How hard cases can be resolved
• There is special method propounded by Dworkin in order to resolve Hard Cases. this is call as theory of
Interpretivism. using interpretivism, judges are bound to follow principle instead social facts. it is a question that
need to ask why interpretivism most effective instead the positivist theory according to Dworkin? moral values
need to be role in adjudicating processing order to produced just outcome. Formulating method call 'lex ferenda' a
normative view on how law is evolved is more beneficial to society than the social facts. the method of
interpretivism not use in interpretation of international laws. Hard cases are problematic. they ask why they have
not clear consensus of interpretation. There is no such kind of problem in easy cases.
9. Method of interpretivism
First step:
Identify the relevant legal method (constitutional provisions, statutes, past legal reasoning)
Second step:
extrapolate principle from legal materials (interpretative)
Trying to identify value of such materials
Why such value: to reflect social moral value
To be value this value--- shall be reflected social moral value.
Final step:
applying such principle to come to a moral conclusion (post I interpretivism)If there are conflicting arguments and
values, we want to take weight of principle to apply what principle is more weight in social value.
Dworkin argued that value of society underpins the rules and therefore thisvalue should be decided hard cases.
10. Advantages of interpretivism:
1.Link the law to morality Whilst positivist base on factual method of agreement, interpretivism are based on normative method of law to
uncover moral values of laws. Positive legal theory makes immoral interpretivism in hard cases. like in Nazi law
2. Interpretivism focus on ‘lex ferenda’. Which names what the law should be rather
than what it factually is (lex-lata).
3.It is derived from society rather than authority.
4.Interpretivism can also be seen to have positive effect on the evolution of the law. Usinglex ferenda will create flexibility for the future
law.
Disadvantage:
1. limited with respect to solving hard cases in international law, deferent norms in multiple community.
2. In most hard cases right answer hunter by reason and imaginations.
3. It doesn’t follow that the something can not be demonstrated that it cannot be right
4. Law as integrity does not provide objective right answer to given question.
5. Answered yielded by integrity are objectively eight answers to question of law
11. Dworkin challenges the emerging positivist viewpoint that rejects the natural theory. In doing so, Dworkin
claims that there are historical moral terminologies. They may derive from the Eternal Law in the holy
books, or from society’s established principles of what is fair and just. Because of this, Dworkin concedes
that morality is and always will be a part of it is the legal profession’s responsibility to maintain this
presence of morality in the law. Legal principles have the ability to be moral, but this requires a sincere
effort on behalf of the law–makers, law–executers, and law–deciders in a given society. This responsibility
of the three branches of governance is to not be overlooked according to Dworkin’s appropriated Legal
Interpretivism.
conclusion
