In the essay, The Politics of Interpretation, Ronald Dworkin uses an analogy of literary
interpretation to increase our understanding of legal interpretation. He believes that if we study the process of interpreting in general, it will increase our understanding of interpretation within the legal practice. First, I will summarize his thought process in his paper. I will then prove that he may give an enlightening account of the politics of interpretation, but the process of interpretation still suffers from selection bias due to the descriptive canon of intentions in legal history, the guiding political philosophy of the judge and adherence to rules guiding “interpretation of interpretation.” In my analysis, the only way to solve these problems of selection bias, depends on developing a philosophy of interpretation. Dworkin begins his essay by discussing the nature of legal practice.
Dworkin starts with the premise that legal practice in general is just an exercise in
interpretation. Interpretation of legal history is composed of both a descriptive element and an evaluative element. To understand the nature of interpretation, within the legal practice, Dworkin asks us to expand our scope of inquiry and investigate the process of interpretation in literature. His hope is that our understanding of interpretation in law will be increased through its application in literature.
Dworkin settles on the Aesthetic Hypothesis for his analogy and states it as
“an interpretation of a piece of literature attempts to show which way of reading (or speaking or directing or acting) the text reveals it as the best work of art.” (Dworkin 183)
He communicates how any interpretative process necessarily needs certain theoretical assumptions like descriptive and normative criteria for literature. He says that there must be a distinction between interpreting a piece of art and changing it. The identity of the piece must not be tampered with in
the process of interpreting. He concludes this part of his conceptualization by communicating the lack of distinction between interpreting, determining the meaning of something, and criticizing, evaluating its success.
Challenging the aesthetic hypothesis is the Author’s intention theory of interpretation. Dworkin expresses this theory in the following way, a
“good interpretation will focus on what the author intended, because communication is not successful unless it expresses what a speaker wants it to express.” (Dworkin 185)
He quickly distills two objections to this second theory:
1) limiting meaning only to the author's intentions is a narrow and constrained view, and
2) complexities of the author’s state of mind, like interaction of intentions and beliefs, are necessarily misunderstood
Dworkin essentially demonstrates that the Author’s Intention theory limits our critical and explanatory power in the process of interpreting meaning. Dworkin quotes the novelist John Fowles to illustrate a metapoint about creating something,
“a genuinely created world must be independent of its creator." (Fowles in Dworkin 191)
Dworkin identifies how a created work is
complete when it is detached from its creator, allowing its meaning and nature to be free. His next step is introducing a thought experiment that will connect the aesthetic hypothesis to the legal practice.
Dworkin’s thought experiment is a multi-authored novel; where every chapter is written by a new novelist. Each subsequent author is to read all the previous chapters and add to the whole piece with their chapter. Dworkin explains how there are constraints to the interpretation
by making it the best artistic piece and testing that interpretation formally by how it fits together integratively, and substantively in regards to how good it is as a complete work. He then identifies a practical limitation to the interpretative process. It cannot be intention-bound because the present author would have no way of knowing each previous author’s intentions.
He now shows how the thought experiment applies to the legal practice.
The multi-authored novel is analogous to the decision making process that judges do when they are interpreting law; especially common-law cases because no statue can guide them. Each present-day judge is interpreting the decisions made by numerous past judges on
an issue and adding to that history. Dworkin expresses the duty the judge has while interpreting the law,
“Each judge must regard himself, in deciding the new case before him, as a partner in a complex chain enterprise of which these innumerable decisions, structures, conventions, and practices are the history; it is his job to continue that history into the future.” (Dworkin 193)
He makes the importance of the judges role clear and leads up to the problems selecting one interpretation over another.
Dworkin discusses that in the context of literary interpretation, interpretation is guided by what makes that work of art most valuable. He notes that two measures are used to test the interpretative process, how well does it fit within the context and how well does it demonstrate
its point or value. For art, its value is determined through conveying its meaning successfully but in the context of law, its value
“lies in coordinating social and individual effort, or resolving social and individual disputes, or securing justice between citizens and between them and their government, or some combination of these.” (Dworkin 194)
Legal interpretation is constrained under the general category of law as a social institution to regulate human behaviour. This leads to the problem of the politics of interpretation; a judge is fundamentally guided in their
interpretation based on their political philosophy.
Dworkin explains how in legal interpretation a description of past law necessarily involves a favouritism towards an intentional view of an author in contrast to a different author’s intentional view. The intentional view that is taken as legal canon is based on its appropriateness towards a specific political theory like liberal or conservative. The kinds of intentions that are accepted succumbs to a kind of selection bias on the judges part. Dworkin believes that this is evidenced by the existence of radical differences between liberal and conservative views of what the United States Constitution means.
In my analysis, Dworkin does a very good job showing how the interpretative process of judges is very much like the multi-authored novel. He does not offer a solution to the problem of knowing the intentions of past legal processes and how it creates a problem of selection bias for
judges. When a judge is determining what cases are relevant to the present issue they are deciding on, they will select past judges or groups of judges' views that fit within their political philosophy to support the decision they are making. Dworkin hopes that a judge will be impartial in the process in that they have a duty of being objective, however this seems incoherent with the nature of the interpretative process.
If it is true that legal interpretation is guided by a judge’s philosophy of law, then differing philosophies of law will yield different subjective results. Dworkin hopes that we can use the same principles of fitting within the context and successful meaning established when interpreting and apply those criteria to our application of interpreting itself. Dworkin is asking
judges to solve this issue of selection bias in legal interpretation by seeing beyond their personal political affiliations and learning from the insights found in the aesthetic hypothesis.
We have learned how difficult it is to limit meaning to an author's intention because it constrains and narrows one’s view, confusions about intentions interacting with beliefs, and is layered on top of many other unknown intentions. If this is true, a highly conservative interpretation that focuses on what the founding fathers of the US Constitution intended would be invalid. Dworkin is suggesting that a conservative, author-intention based interpretation, is conceptually incoherent, shown through the multi-authored thought experiment. A liberal or egalitarian view, that Dworkin supports, see’s the Constitution as having a life of its own, going
back to his quote by Fowles, as soon as the founding fathers created it. This means that when interpreting the constitution we would not use the mindset that those who created it had when they made it. The US Constitution, when created, became its own entity, discharged from the
intentions of the authors. Understanding this is essentially interpreting the process of interpretation or a philosophy of interpretation.
The philosophy of interpretation, whether aesthetic or legal, dismisses the author’s intention as a determining factor for meaning. Unfortunately, Dworkin himself shows evidence of the extreme differences in meaning political views take on the constitution. This means that judges are not truly engaging in a meta-political, philosophy of interpretation approach towards legal interpretation.The issue of selection bias is rooted in how judges allow their philosophy of law and politics of interpretation. To overcome this bias, judges would need to have a higher order ‘best’ that they are building coherently when they interpret law.
If Dworkin wants judges to fulfill their impartial, non-politically influenced process of interpretation, he will have to deal with the foundational elements of those views directly. Explain why conservatism leads to an incoherent interpretation in contrast to an egalitarian one. He has shown through his analogy to literary interpretation that focusing on the author’s international is problematic but he would need to explicitly show why the politics of interpretation takes away from the philosophy of interpretation.
References
Dworkin, Ronald. The Politics of Interpretation. Critical Inquiry. Vol, 9. No 1. University of Chicago Press. 1982. 179-200.
Aj 24.3.21
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