History

- Natural Law
- The theory that laws must be based on some moral authority. Its validity is also
based on the same.
- Legal Positivism
- The validity of law is dependent on whether or not it has been passed by the
proper authority through the proper means.
- Morality is irrelevant in determining the validity of law, and should be kept
separate from law.
- RESULT: LEGAL INTERPRETIVISM
- The middle ground.
- Morality, while not a condition precedent to law, is still something which is NOT
SEPARATE from law.
- What happens when there are no laws and precedent for specific cases?
Proponent
- Ronal Dworkin
- developed Legal Interpretivism 45 years
- Response to legal positivism
- He sees it as something which is inconsistent with how law is practiced.
- Response to Hart in particular
- Hart posits that in hard cases (cases wherein there is no governing law or
precedent), judges have unbridled discretion, amounting to them
legislating
- Dworkin says that they aren’t legislating, or they aren’t supposed to,
because the law has underlying principles that would apply in cases
wherein the rules have a gap.
- Riggs case
- A grandfather was killed by his grandson after the latter found that he was
about to be taken out of the will. The problem is whether or not he can
inherit from the same person he killed. The law has no provision
prohibiting such, nor is there any precedent dictating what to do. Dworkin
posits that the judges in this case, should apply the principles that exist in
the law, one of which is that “no person should profit from his own wrong”.
-

Legal Interpretivism
- Law as an interpretative concept
 - Law is a kind of concept whose correct application depends not on fixed criteria
or an instance-identifying decision procedure, but rather on the normative or
evaluative facts that best justify the total set of practices in which that concept is
used.
- In other words, the law is whatever follows from a constructive interpretation of
the institutional history of the legal system.
- Developed primarily by Dworkin, over the course of 45 years
- As such, he takes different stances on certain things, but he doesn’t abandon the
premise that the law is whatever follows from a constructive interpretation of the
institutional history of the legal system.
Hybrid Interpretivism
- Institutional input to the interpretive process—what the institutions said—does not alone
yield the final, complete set of legally valid norms. Rather, the final set of valid norms is
the output of the process. The final set takes as an additional input certain moral facts.
- First Variant (Principles and Rules)
- institutions convey rules, as Hart claimed. These are screened and rejected or
modified to the extent that they conflict with certain basic moral principles of
fairness or justice, as they did in Riggs. Rules are also supplemented with non-
conflicting principles in hard cases, where the rules alone yield no determinate
results. In such cases, the principles fill the gaps.
- Principles are present in these rules even if the legislator did not intend for them
to be there.
- The effect is that the law becomes a hybrid of two standards, with principles
filling in the gaps left by rules.
- Principles – statements which argue for a particular direction but does not
necessarily arrive to the interpretation
-

- Second Variant (Principled Consistency)

- The second variant is built around principled consistency, which is a distinct
political virtue that forms the foundation of law. One can arrive at this by
identifying a set of principles that together justify the given set of norms.
- The effect is that the interpreter works with two sets of norms, one conveyed by
the institutions, the other that of uncreated, genuine moral norms- or moral
principles.
- Much like the first variant, the law remains a hybrid, being made of two
standards, one being grounded in social facts while the other in moral facts.
 - In the process of interpreting the law, one must note that dworkin reminds us that
the correct interpretation must fit and justify its object.
- Fit
- One must ask "Of all the possible interpretations of the law that I could
adopt as the basis for my decision, which interpretations are consistent
with the theory that best fits the existing legal landscape. Of all the rules I
could adopt in this case, which ones are consistent with the relevant
constitutional and statutory provisions and with the precedent?"
- Fit operates as a threshold constraint on eligibility of interpretations
- It is meant to ensure that the interpretation is really an interpretation
instead of merely being an invention
- IT is a standard meant to measure whether the interpretation is consistent
with the law.
- Justification
- Oftentimes, various interpretations fit. In the process of finding the best
one, an interpreter must ask “Of the interpretations of the existing law that
fit the constitution, statutes, and case law, which is the best
interpretation? Which of the possible legal rules that I could adopt is most
consistent with the normative theory that provides the best justification for
the law as a whole?”
- Given that there are only multiple fits in cases of ambiguity in the rules
provided by law, it is only in times of vagueness will we see a judge need
to fall back on justification in order to find the proper interpretation.
- Dworkin identifies two possible justifications, namely, appeals to fairness
and rights and appeals to consequences. He favors appeals to fairness
and rights way more.

Pure, Non-hybrid Interpretivism

- Pure, Nonhybrid Interpretivism acknowledges institutional practice as a factor in
explaining the content of the law, but it does not alone give content.
- In Pure, Nonhybrid Interpretivism, the institutional practice does not contain
particular ways which statutes or decisions are meant to confer rights and
obligations. Rather, morality determines how institutional practice affect rights
and obligations. Thus, morality contradicts institutional practice and determine its
effect, which interpretation intends to identify.
- In pure, nonhybrid interpretivism, there are moral facts, and these moral facts are
reflected by the moral principles. Say like the moral fact is killing is bad. The moral
principle behind it is because we should not deprive others of life. Now these moral facts
are the determinants of how institutional practice determines the law. In essence, moral
facts are the reasons behind the actions of institutions in enacting laws.
- “We deploy morality, as is, not to compare it with history but to find what difference
history made.”
- It provides a moral backdrop to the institutional practice, giving institutional practice
some moral reason as to why such practices were conducted.
Morality of Institutional Practice
- Hybrid Standpoint
- The morality of institutional practice as to the hybrid standpoint is more
concerned with principles of fair notice, political morality and other considerations
related to authority.
- Pure Standpoint
- Rights and obligations may only be enforced when the claim meets the
conditions of legality by being grounded in institutional practice.
- In essence, if the government is to enforce a right or impose an obligation, it
must justify such coercion through institutional practice.
- This justification is born from the fact that government must take its actions, both
past and present, seriously and act in a way that is consistent in principle with the
actions it took in the past. Additionally, egalitarian considerations dictate that
morally alike situations should be treated alike.
Disagreements
- Legal interpretivism entails the prospect of disagreement between those who discourse
about the law.
- Disagreement adds substance to the constitutive explanation of the law. It sort of adds
more justification as to why the law is.
- Disagreement can arise because of the controversial nature of morality and from the
substantive character of the reasons why the law is.
- Because disagreement is essential in legal interpretivism, we must rule out the idea that
we can only use the truth to defend our answers. In other words, we can use virtually
anything we want to support our ground.
- Viewing disagreements as an important factor in legal interpretivism brings about
the connection of fundamental challenges on the grounds of law to the obscure or
irregular moral views about legal relevance of some factor. The more we disagree
and use unusual moral views and arguments, these unusual moral views may
become more acceptable and eventually become the dominant principle behind
the law.
- Metalinguisitc
UNFILTERED NOTES:

Hybrid Interpretivism:
- the set of institutionally valid norms—the norms determined by what the institutions said
—forms the interpretive baseline.
- To interpret is to assess the norms constituted by institutional communication and adjust
the set in order to make it more attractive in some way—to make it better conform to the
abstract point of legal practice against which it is interpreted.
- Hybrid interpretivism is therefore the thesis that the institutional input to the interpretive
process—what the institutions said—does not alone yield the final, complete set of
legally valid norms. Rather, the final set of valid norms is the output of the process.
- One variant of hybrid interpretivism is the conception of law as consisting of both rules
and principles.
- Taking principled consistency in the law as an interpretive target, the interpreter
identifies a set of principles that together justify the given set of norms.
- Taking principled consistency in the law as an interpretive target, the interpreter
identifies a set of principles that together justify the given set of norms. The interpreter
works therefore with two sets of norms, one composed of norms conveyed by
institutions, the other composed of uncreated, genuine moral norms—general moral
principles. He is to compare the two sets, and adjust the first in light of the second. He
may then say that the law now includes both the original norms and the principles (or
perhaps some further norms determined by the principles). Like its older, rules-and-
principles cousin, the law is a hybrid, a creature of the two separate sets of standards,
one grounded in social facts, the other in moral facts, that interpretation blends together
(cf. Raz 1986)
- In this operation, the principles (and the further norms that they determine) are valid in
virtue of the relation of justification they bear to the original norms. In the presently
relevant sense of justification, an eligible principle is one that reflects an ideal
arrangement, prescinding from institutional practice, against which norms that the
practice produced are measured, provided the principle is at least logically consistent
with the norms. But for some principles to be said to justify some actual, institutionally
created, norms of tort, as the hybrid interpretivist says his favoured principles do, it
wouldn’t be enough that the principles captured the relevant ideals. They would further
need to be at least consistent, in some specified sense, with the norms. A principle
wouldn’t count as justifying an institutionally created norm in any sense, when it
prohibited what the norm required or permitted. For any putative set of justifying
principles, it’s a condition of eligibility additional to and independent of merit that the
principles be consistent, in some specified sense, with the set of the original norms.
- The understanding of principled consistency used in this conception of interpretivism
corresponds to one understanding of Dworkin’s famous distinction between fit and
justification as dimensions of interpretation (Dworkin 1986). Dworkin said that correct
interpretation must both fit and justify its object. On the understanding in discussion, fit
operates as a threshold constraint on eligibility of interpretations. Independent moral
appeal governs the choice among alternatives that pass the threshold (cf. Raz 1994:
 223). Fit, on this conception, is meant to ensure that a candidate interpretation is indeed
an interpretation of some object rather than an invention. It is a nonmoral constraint, in
two ways. First, it is meant to secure consistency with a set of norms that are grounded
in nonmoral considerations—in the action and psychology of agents and institutions.
Second, the relevant notion of consistency itself is meant to be nonmoral, a constraint of
formal consistency between norms and principles. The thought is that the original set of
norms could not really constrain interpretation if substantive, moral considerations
played some role in determining what it is to fit the norms. If the notion of fit were tainted
by the very kind of consideration that defines the ideals against which the actual norms
are to be measured, the distinction between interpreting the actual practice of institutions
and inventing a new, better practice would be erased.
- Hybrid interpretivism gives us no reason to abandon a sharp distinction between the pre-
interpretively given corpus of institutionally valid norms constituted by communication
alone, on which interpretation operates, and the final set of norms that interpretation
yields.
- Hybrid interpretivism is not therefore faithful to the basic interpretivist idea that the legal
relevance of institutional practice is fundamentally explained by some political ideals. For
example, that the fact that it’s the duty of government to treat its citizens in a manner
consistent in principle makes institutional decisions relevant to their legal obligations,
rather than supplement the decisions or filter their results.
- Hybrid interpretivism, by contrast, takes the norms as the object of interpretation and so
its starting point, not its end.
- hybrid interpretivism commits itself to the existence of some normative content—the
norms and the obligations that follow from them—that is constituted by institutional
practice alone. Moral principles contribute some more normative content, and the final
content imputed to the law is some combination of the two.

PURE, NONHYBRID INTERPRETIVISM:

- It therefore does not take the practice already to contribute norms, obligations, or any
other kind of normative content, whether outright or from a point of view, or to consist in
communication that conveys or is intended to constitute normative content.
- It understands the idea that the practice, nonnormatively specified, plays a role in the
fundamental explanation of the content of the law differently: the practice is a factor in
the explanation, but does not alone constitute any content.
- Nonhybrid interpretivism says that moral principles determine how the practice may
determine such content.
- Institutional practice is conceived in terms of actions and attitudes, not norms or
communication of norms. We start at what people do and say and think. Assemblies
draft, debate, amend, and enact statutes. Agencies develop and adopt regulations.
Courts consider disputes, resolve them and issue opinions, including dissents, which
offer reasons that support resolving the disputes in one or another way. In short,
institutions and agents operating within them take actions, including the action of
producing certain texts or utterances, and hold a variety of attitudes, whose role as
 determinants of legal rights and obligations is itself determined by the moral principles in
play.
- Nonhybrid interpretivism does not assume that institutional practice consists in
communication of norms with its own logic that is logic of the law. It does not assume
that the practice contains in itself the particular way in which enactments or decisions
“are meant” to constitute obligations.
- The notion of justification is very different on this view. Moral facts fix the relevance of
other factors. The moral principles that reflect those facts do not add content to the law,
which needs to be combined with content otherwise contributed by institutions.
- They determine which precise aspect of institutional practice is relevant to the practice’s
contribution to the law. The moral facts are therefore fundamental to the constitutive
explanation of law, but do not directly determine its content. They determine how
institutional practice determines the law.
- Nonhybrid interpretivism is not so committed. Since it holds that morality determines how
institutional practice affects rights and obligations, it inherits the holistic structure of
morality: the whole of morality confronts the whole of institutional practice and
determines its effect, which interpretation purports to identify.
- “We deploy morality, as is, not to compare it with history but to find what difference
history made.”
- Pure interpretivism offers a thoroughly moral explanation of the normative relevance of
institutional practice, by identifying a moral concern that gives the practice in the abstract
such relevance.
- It provides a moral backdrop to the institutional practice, giving institutional
practice some moral reason as to why such practices were conducted.

DISAGREEMENTS:
- Interpretivism about law implies the possibility of disagreement about the grounds of law,
because it makes law’s constitutive explanation a matter of substance—specifically, a
matter of the moral justification of the role of institutional history in the determination of
rights and obligations.
- Notice that the possibility of disagreement about grounds is implied not only by the
controversial nature of morality, but already by the substantive (therefore potentially
controversial) character of the grounds.
- To defend the claim that disagreement about grounds is indeed possible, one would
have to resist the assumption that, as a general matter, we can only share a subject
matter by sharing truths that define it. Indeed Dworkin, anticipating that his examples of
disagreement that appears to be about grounds would be reinterpreted by his critics as
disagreement about social facts or about how to change the law, invited his critics not to
rule out the possibility that disagreement might be more fundamental.
- This view traces the intelligibility of fundamental challenges about the grounds of law to
unusual moral views about the legal relevance of some factor. If this is correct, we
should expect that such challenges may occur with some regularity, and that arguments
once widely considered not colorable may come to be taken seriously and finally to
become dominant.
Corpus v. People
- issue is on the penalty
- wants to lower it because they saw the penalty as excessive
- court cannot lower it because that’s what was imposed by the law
- the law is harsh but it is the law

Is there truth in interpretation – Dworkin

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