Dworkins Interpretive Theory Legal interpretation Law Not just explicitly adopted rules like statutory codes and

odes and other official documents Not just a collection of miscellaneous norms It is an expression of an underlying philosophy of government Explicitly adopted rules + Best moral principle that can be understood to lie behind those rules Requires moral judgment Does not mean that rules of positive law will be declared invalid when judged to be immoral or unjust Morality will exercise significant influence over the way rules are to be understood Morality is intertwined with positive law

Philosophy Consist of the fundamental purpose of the government Proper relation between government and individual

Principle Serve as legitimate bases of legal decisions Guide the interpretation of legal rules in hard cases

How to choose the Best moral principle? One must judge the degree of fit between some proposed principle and the rules.

Fits two aspects Logical consistency: logically consistent with most of the rules o Total consistency not required o High degree of consistency Power to help provide a rationale o Provide rationale for the rules o Must help justify

4th Amendment and Olmstead cases: Privacy Different levels of interpretation of privacy Reflects the different moral and political principles people have as well as the differences in their philosophy of government and society

Shows that Dworkins method of interpretation must involve more that simply deciding which moral principle fit the communitys explicitly adopted legal rules

Role of Morality Morality: privacy principle in which legal decisions should be made is the one from among those that fit the explicit legal rules, that is morally best. Law= rules explicitly adopted (by the political community) + best principles that fit those rules Best: morally best Each person must decide for himself which is morally best A judge may not arrive a correct legal outcome But if she followed Dworkins method, she will make a good faith effort to determine what is morally best. Law has integrity o Idea that the law consists of rules the community has authoritatively decided to adopt PLUS the best moral principles that fit thos rules o PLUS: help raise law above the level of sheer power into the moral domain Helps give judicial decisions in hard cases their authority Gives moral force to the legal obligations that members of the community have

The challenge of skepticism Moral disagreements will reverberate in the arena of legal interpretation o Produces disputes over what the law means and what the right answers are in hard cases o Might invite deep skepticism about the law Existence of disagreement does not entail the absence of a right answer

External Skepticism Doubts on the idea that there are right answers when it comes to basic moral questions about our obligations and rights Moral obligations does not refer to any empirical feature of the world Arguing that questions about moral obligations have no right answers because nothing in the empirical world makes them true or false It would seem a serious mistake to make legal questions depend on the answers to moral questions o Legal questions have no right answers either Dworkins counter: o Claiming that it rests on the false premise that moral judgments must correspond to perceivable facts in order for us to reasonably assert that some such judgments are right and others are wrong

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Wrong: disagreements over moral obligations require some empirical method for resolving them Rejects the idea that all statements need to be about perceivable states of affairs in order to be both meaningful and subject to reasoned argument Making moral judgment is a practice with its own standards of good reasoning and should not be confused with the practice of making empirical judgments Fails to come to grips with the fact that there are many different , conflicting ways of conducting moral argument It can rest its case on the existence of conflicting modes of moral argument and on the assertion that there is no way to establish which mode is correct

Internal Skepticism Does not challenge the existence of right answers in morality Argues that Dworkins theory is nonetheless insufficient to show that law is more than the mere exercise of power by those who control society Claim that law consists of the rules explicitly adopted by the community plus. Problem: such principle may be insufficient to give the law an integrity that raises it out of the domain of mere power politics Our legal system is fundamentally unjust and oppressive o Serves the wealthy and privileged at the expense of the rest of the society In this view, the best moral principles that fit the explicit rules of the systems are insufficient to raise the law above the realm of power politics o Reflect and reinforce the interests of the powerful o Contrary to Dworkins claim that the law has no integrity Strictly a matter of might and not of right No consistent set of moral principles underlies our laws Different legal rules and doctrines reflect incompatible moral view points Associated with the view known as Critical legal studies o Does not believe this because he believes neither that the law is riddled with contradictions nor that it is unjust and oppressive