'Action in Law’s Empire: Judging in the Deliberative Mood'

By Veronica Rodriguez-Blanco (University of Birmingham)

 §1 Introduction

Dworkin advances the view that judges decide legal cases according to the methodology of constructive interpretation and that, hence, in their answer to a legal question judges focus on providing the best possible interpretation of the law in light of the two criteria of fitness with past legal materials and moral soundness. The aim of this constructive interpretative exercise is to justify the coercion of the State. This is key to understanding Dworkin’s criticism of the rule-based account of legal decision-making processes by judges. A trivial implication of this view is that officials and citizens comply with the law because of the justification that has been advanced by judges in their exercise of constructive interpretation. Consequently, neither officials nor citizens comply with the law because they have been coerced or because they have been simply told to do so. It must be questioned, however, whether constructive interpretation really can provide any guidance since officials and citizens have been asked to accept the interpretation of the law that has been put forward by the judges and, arguably, this interpretation is the best possible interpretation of what the law is in a particular case. Moreover, why should officials and citizens accept the indicated interpretation? Do officials/citizens simply accept the justification provided by judges or do they, rather, simply believe that the indicated interpretation is the most sound and desirable interpretation of legal practice, and this belief causes the appropriate action? Is this a plausible conception to explain our compliance with legal decisions?

A possible response to this set of interrelated questions is to say that citizens and officials, like judges, also engage in constructive interpretation and that, therefore, their best possible interpretation of what the law is coincides with the interpretation provided by the judges. I will show that this is an implausible account of compliance with the law and will further show that even were this account accurate, legal decisions in this scenario could guide neither the citizen nor the official. I will argue that the mistake of the theory of constructive interpretation lies in a misleading and implausible conception of action and intention that construes action as the result of bodily movements that are instantiated in a practice and upon which a meaning is imposed. I will -in addition- defend a more plausible conception of action along the classical tradition that understands practice as originating in agency and deliberation. The outcome is that constructive interpretation and its conception of ‘imposing meaning, value or purpose’ on practice is a theoretical perspective that neglects and misunderstands action and practical reason.