Friday, October 29, 2021

A New Argument for a Dworkinian Theory of Legal Interpretation

The late Ronald Dworkin was one of the great legal and political philosophers of modern times. This is true, I think, whether or not one agrees with his substantive views, which (I think to his detriment) followed the main tenets of the Democratic Party’s political platform. 


Central to his theory of law was his view of legal interpretation. Dworkin thought that the ideal judge interprets legal texts by putting them (the Constitution, statutes, and precedents) in their best possible light. A law should be interpreted using the best political theory that explains that law in a manner coherent with the legal system. Legal interpretation is thus a child of both morality and history. Propositions of law must be ethically sound but also faithful to the text, to history. It is not unhinged political philosophy, but bounded practical reasoning.


Now Dworkin’s views are not popular these days. They are under attack, not only by Hartian positivists, but also by the progressive left (not radical enough) and the conservative right (judicial activism). And libertarians dislike his support of expansive government. More generally, many have objected that Dworkin does not give enough weight to original intent.


I will not respond here to all these criticisms. I want to offer, instead, a new argument for Dworkin’s theory of legal interpretation. (The argument is confined to statutory interpretation. Constitutional interpretation and interpretation of the common law, although similarly inspired, call for separate considerations.)


In a democracy judges are called to interpret the law enacted by elected politicians. Now, politicians tend to be bad people, for many reasons. To them, incumbency is paramount, and the least we can say is that this goal undermines public-spirited motivation. Politicians lie in the pursuit of their own political and material aggrandizement. I don’t mean that politicians are viscerally bad people: rather, the structure of incentives under which they operate kills most public spiritedness in their behavior. Legislation often results from bargains to trade favors, and from responses to rent-seeking from powerful interests. These pathologies are well known and have been amply discussed by social scientists.


So, the judge is called to interpret the law enacted by bad people. The judge, let’s assume, is well motivated. She wants to render a just and impartial decision. I think this assumption is plausible because the judge is not trapped in the structure of incentives that corrupts politicians. Given this, it makes eminent sense for the judge to ignore original intention altogether. Why would she give weight to the intentions of bad people? Better to find the best meaning of the statute so she can render a just and impartial decision consistent with an ordinary meaning of the text. As we know, many legal terms are vague or ambiguous. Political theory will help our judge choose among the semantic alternatives.  


Seen in this way, judges perform the invaluable function of protecting us from politicians. (Someone could object that the solution should be to elect good people to office. For reasons I cannot pursue here, this is, alas, unlikely to occur.) 


So Dworkin’s theory of legal interpretation is attractive, but for different reasons from the ones he gave. Judges that ignore legislative intent render a valuable public service, regardless of the substantive political theory they happen to prefer.