dworkin's theory of interpretation

dworkin's theory of interpretation

E.g., Bork, Robert, The Tempting of America (New York: Free Press, 1990), pp. 80 Dworkin, , Matter of Principle, p. 401n20. 73 Dworkin, , Freedom's Law, pp. Originalism may not be able to provide an answer as to what the Constitution requires in every case. 265–80; Davidson, , “A Nice Derangement of Epitaphs”; Hirsch, , Aims and Interpretations, pp. 3 Dworkin, Ronald, A Matter of Principle (Cambridge, MA: Harvard University Press, 1985), pp. For an interesting elaboration of this possibility, see Perry, Michael J., The Constitution in the Courts (New York: Oxford University Press, 1994). Salter, Alexander William 1 Kalman, Laura, The Strange Career of Legal Liberalism (New Haven: Yale University Press, 1996), pp. Alexander, Larry (New York: Cambridge University Press, 1998), pp. 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. 438–43. 13, 294. 250–59. 119–21; Dworkin, , “Arduous Virtue”, pp. We use cookies to distinguish you from other users and to provide you with a better experience on our websites. There is no longer … But first, you must understand it. (Princeton: Princeton University Press, 1997), pp. See also, Raz, Joseph, “Intention in Interpretation”, in The Autonomy of Law, ed. 18 Dworkin, , Life's Dominion (New York: Alfred Knopf, 1993), p. 145. Dworkin's theory intended that the legal subject usually gets the only right answer. 7–10, 13–14. 293, 304. 30 The second dimension is particularly important in the case of constitutions. 22 Dworkin, , Taking Rights Seriously, pp. See also, Brest, Paul, “The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship”, Yale Law Journal 90 (1981): 1091–1092. Full text views reflects the number of PDF downloads, PDFs sent to Google Drive, Dropbox and Kindle and HTML full text views. See also, Dworkin, , Freedom's Law, pp. Dworkin as a critic of HLA Hart's legal positivism has been summarized by the Stanford Encyclopedia which has stated that: My concern is with Dworkin's claim that intentions can be known but without any significant historical investigation. 7–15. 57 Davidson, Donald, Inquiries into Truth and Interpretation (New York: Oxford University Press, 1984), pp. This error would frustrate the speaker's expectation, but it would not necessarily prevent his meaning from being understandable or understood. Dworkin's suggestion that following original intent in fact requires judges to engage in moral reasoning would mark a radical change in originalist practice, but is potentially consistent with central originalist commitments, which is why Dworkin has recently emphasized it. 82 The text itself may provide clues as to which intent is conveyed, however. 56 And even then, the speaker may make an error in his effort to invoke a convention. 15 In fact, Dworkin has sometimes offered precisely such a defense. 8 Quoted in Kalman, , Legal Liberalism, p. 139. Regardless of the metaphysical source of the moral concepts to which the constitutional text refers, however, Dworkin is concerned that they have meaning independent of legislative or judicial will. My argument here is that, upon analysis, what Dworkin characterizes as a choice between levels of intention reduces to a problem of determining the intent of a historically distant, collective institution—a standard problem squarely within traditional originalist theory. 7–12. 67 The appeal of Dworkin's approach is further enhanced by the moral skepticism of originalists such as Robert Bork, who, in his constitutional theory, portrays politics as nothing but a battle of will, though in aligning judges on one side of that battle he denies that they make a political “choice”. Central to Dworkin’s project that to develop a theory of adjudication it is necessary to engage in a constructive interpretation of legal practice. 233–43; Searle, John, Speech Acts (New York: Cambridge University Press, 1969), pp. 54 In fact, “a knowledge of the writer's intentions in writing⃛is not merely relevant to, but is actually equivalent to, a knowledge of what he writes” (Skinner, “Motives, Intentions, and the Interpretation of Texts, p. 76). 1249–51. for this article. 72–75. 9–17, 76, 291, 350n10, 350nll; Dworkin, , “Arduous Virtue”, pp. 44 Schauer, Frederick, in “Fidelity as Integrity: Colloquy”, Fordham Law Review 65 (1997): 1361. E.g., Davidson, “A Nice Derangement of Epitaphs”. Similarly, Dworkin has argued mat “it is as illegitimate to substitute a concrete, detailed provision for the abstract language of equal protection clause as it would be to substitute some abstract principle of privacy for the concrete terms of the Third Amendment” (Freedom's Law, p. 14).

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