Constructive Interpretation

Thursday, 8 February 2024 9:15 AM

One must view the term pragmatism an personification from Dworkin's lens i.e.,
through constructive interpretation
• First limb of CI -> law ought to have a purpose
• Scond: purpose and value based
• Third: pragamtic approach
• When you look at CI -> you are not looking at a statute for interpretation,
only looking at how the judge perceives the law the law to be
○ Very subjective and individualistic

• Principle v. Standard
○ Principle is that which remains consistent in all given scenarios
○ Standards refer to already established, pre-implemented standards,
not the ones being changed by pragmatic decisions of law
§ Judges and lawyers may end up creating evolving standards
○ Principle will always have a value attached to it which will be
determined by the society and governance structure you are in
§ Principles will always reflect the value system and the
normative behaviors of society
§ The insist that there ought to be a change triggers pragmatism
§ Principles apply for a period of time, as values and norms
change
○ Pragmatism must be time bound, values will not remain the same
forever
○ Value does not need to equate a standard?
○ Justice is a principle, fairness is a standard

• Hard Case
○ CI only applies to these cases mainly
○ Look at the law from a pragmatic sense
○ Remedies the law for a small amount of time
○ For the three requirements of P, not a standard but a principle (you
may not have a precedent to follow, therefore use pragmatism and
use your own interpretation)
○ Only the lawyer or judge applies pragmatism, legislature applies
personification i.e., the letter of the law
○ Lawyer/ Judge apply principle and pragmatism, for legislator apply
For Dworkin Chapter Answer:
Constructive Interpretation
 may not have a precedent to follow, therefore use pragmatism and
use your own interpretation)
○ Only the lawyer or judge applies pragmatism, legislature applies
personification i.e., the letter of the law
○ Lawyer/ Judge apply principle and pragmatism, for legislator apply
standard and personification

Recap
• Pragmatism approach based on principle and value driven approach, not a
standard driven approach
○ Principle is universal in nature and value of society, but not
establishment of a standard
○ Standard is an established manner of working, will only evolve
through the pragmatic approach of lawyers which will subsequently
be reflected in the code
○ Hierarchy exists as law has its sources, principle is at the top, new
standards and norms are below as they are based on the evolution of
society

Snail Darter Case

• Possibility that in first appealm the case may still remain an easy case
• But consequently in a fresh appeal, it'll be a hard case after applying a
pragmatic approach to uphold a principle

Personification
• Based on the question of law a case can be categorized as a hard or an easy
case i.e.,
○ a case not specific in nature,
○ the question of law is new or novel and
○ the statute does not directly address the question of law

Law as a Fractal
• Based on the concept of impossibility of precision - first module
• Law is a fractal -> author wants to say that law can be ambiguous, non-
specific, complex and generic
○ Just because law is comprised of the above, does not mean that the
law is wrong on these grounds
• When looking at article:
○ The text of law or legislative text must be considered, not a judge or a
lawyer
○ All 5 speak of the same thing
○ Thomas Aquinas: impossible to create one law to encompass all, even
if you should, you should not
○ Wendel: bad man theory, follow general rules, oblique principals or
For Dworkin Chapter Answer:
Constructive Interpretation
Hard Case: Elmer Case, Snail Darter Case, Mcloghin C
Case
 lawyer
○ All 5 speak of the same thing
○ Thomas Aquinas: impossible to create one law to encompass all, even
if you should, you should not
○ Wendel: bad man theory, follow general rules, oblique principals or
standards, and these will lead to catering all specific cases
○ Hart: Penumbra refers to open ended or open texture cases i.e., hard
cases
○ Manning: Hyperlexis - "when manning made a reference to this term
… pathological condition caused by an overactive law making gland"
§ When you become too specific or try to cover all potential
aspects - law becomes too complex and expensive the remedy
mechanism becomes to comply with
§ Examples are the Employee Code and the Tax Code
○ When reading: Author wants to drive home one message through the
article - law cannot be the most articulate and the most specific - it
has the innate ambiguity, cannot be explicit