The unity of interpretation

Boston University Law Review

Volumn 90, Issue 2, 2010, Pages 551-578

  Solum, Lawrence B ^a  

^a UNIVERSITY OF ILLINOIS AT URBANA CHAMPAIGN   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77954340224     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (73)

1. See LUDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS 32 (G.E.M. Anscombe trans., 3d ed. 1968).
2. RONALD DWORHN, JUSTICE FOR HEDGEHOGS (forthcoming 2010) (Apr. 17, 2009 manuscript, on file with the Boston University Law Review).
3. Ronald Dworkin, Hard Cases, 88 HARV. L. REV. 1057 (1975).
4. RONALD DWORHN, LAW'S EMPIRE (1986).
5. In oral remarks at the Boston University conference, Dworkin seemed to express general assent to the account offered in the oral remarks that formed the basis for this Essay.
6. See Ronald Dworkin, Ronald Dworkin, Response to Panel U: Interpretation at Justice for Hedgehogs: A Conference on Ronald Dworkin's Forthcoming Book (Sept. 25-26, 2009) (transcript on file with the Boston University Law Review) [hereinafter Dworkin, Response].
7. Dworkin, Hard Cases, supra note 3, at 1058-60.
8. Id. at 1059 (discussing "arguments of policy").
9. Id. (discussing "arguments of principle").
10. Id. at 1060.
11. H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593, 607 (1958).
12. Id.
13. See Stephen R. Perry, Method and Principle in Legal Theory, 111 YALE L.J. 1757, 1807 (2002)
14. (reviewing JULES L. COLEMAN, THE PRACTICE OF PRINCIPLE: IN DEFENSE OF A PRAGMATIST APPROACH TO LEGAL THEORY (2001)).
15. See DWORHN, LAW'S EMPIRE, supra note 4, at 354 ("Hercules does not need one method for hard cases and another for easy ones."); see also id. at 266 ("[E]asy cases are, for law as integrity, only special cases of hard ones....").
16. My view of this relationship has been greatly influenced by the work of Mark Greenberg.
17. See Mark Greenberg, The Standard Picture and Its Discontents (UCLA Sch. of Law Research Paper No. 08-07,2008), available at http://ssrn.com/abstract= 1103569.
18. Dworkin does, however, describe the theory of Law's Empire as involving two steps: First, there must be a "preinterpretive" stage in which the rules and standards taken to provide the tentative content of the practice are identified.... Second, there must be an interpretive stage at which the interpreter settles on some general justification for the main elements of the practice identified at the preinterpretive stage. DWORKIN, LAW'S EMPIRE, supra note 4, at 65-66. But this is not a two-step theory of interpretation; interpretation is stage two. If the same schema were applied to the theory in Hard Cases, there would be a three-step theory: (1) identify the object of interpretation; (2) identify the settled core (the easy issues); and (3) apply the method of fit and justification to the penumbra (the hard issues).
19. This is explicit in the passage quoted supra note 15. 17 By otherwise, I mean "in the absence of controlling legal rules" or "if the case were a hard case rather than an easy case" or "if the case were in the penumbra rather than the core of the relevant legal rule."
20. See, e.g., DWORHN, LAW'S EMPIRE, supra note 4, at 186-90.
21. These remarks and questions about Dworkin's view in Law's Empire are not intended as objections; this assessment of the viability of the normative legal theory offered in Law's Empire is far outside the scope of this Essay. Rather, I aim to present a picture of the way in which Law's Empire was received in order to provide the context for the emergence of Dworkin's new view in Justice for Hedgehogs.
22. JOHN RAWLS, POLITICAL LIBERALISM 133-72 (expanded ed. 2005).
23. DWORHN, supra note 2 (manuscript at 79).
24. Id.
25. Id.
26. Id. (manuscript at 79-80).
27. Id. (manuscript at 83).
28. Id. (manuscript at 84).
29. Id. 28 Id. (manuscript at 85).
30. Id. (manuscript at 86).
31. JOHN RAWLS, A THEORY OF JUSTICE 18 (rev. ed. 1999).
32. DWORKIN, supra note 2 (manuscript at 87).
33. Id.
34. Id.
35. Id. (manuscript at 255).
36. See id. (manuscript at 84).
37. Id. (manuscript at 98).
38. See Dworkin, Response, supra note 5, at 4.
39. See supra text accompanying note 27.
40. DWORKIN, supra note 2 (manuscript at 84).
41. Id.
42. DWORKIN, LAW'S EMPIRE, supra note 4, at 354.
43. DWORKIN, supra note 2 (manuscript at 85) (emphasis added).
44. I searched the Journals and Law Reviews database, using search term "semantically available."
45. Ronald Dworkin, Interpretation, Morality, and Truth (Fall 2002) (unpublished manuscript), available at http://wwwl.Iaw.nyu.edu/clppt/ program2002/readings/dworkin/dworkin.rtf. I performed this Google search on January 24,2010.43
46. See E. Allan Farnsworth, "Meaning" in the Law of Contracts, 76 YALE L.J. 939, 939 (1967).
47. Although this article by Farnsworth is the first theoretically sophisticated discussion in a contemporary law review, the distinction goes back at least as far as the nineteenth century.
48. See ARTHUR LINTON CORBIN, CORBIN ON CONTRACTS § 534 (1952);
49. FRANCIS LIEBER, LEGAL AND POLITICAL HERMENEUTICS 43-44 (3d ed. 1880);
50. SAMUEL WILLISTON & WALTER H.E. JAEGER, A TREATISE ON THE LAW OF CONTRACTS § 602 (3d ed. 1961);
51. Arthur L. Corbin, Conditions in the Law of Contract, 28 YALE L.J. 739, 740-41 (1919);
52. Edwin W. Patterson, The Interpretation and Construction of Contracts, 64 COLUM. L. REV. 833, 833 (1964).
53. To be absolutely clear, the words "interpretation" and "construction" are not always used this way. There is a long history of this usage in American common-law jurisprudence that embraces this distinction, but the distinction between interpretation and construction is a technical, legal and theoretical distinction. The senses that are stipulated in the definitions specified above are technical senses. In other contexts, these words are used as synonyms that refer to whole activity (both the discovery of linguistic meaning and the construction of legal doctrines). And both words have other senses as well - already identified for "interpretation," and obvious in the case of "construction" (that is, " construction" has a sense that refers to building).
54. See supra text accompanying note 42.
55. See Lawrence B. Solum, The Interpretation-Construction Distinction 14 (Mar. 4,2010) (unpublished manuscript on file with the Boston University Law Review).
56. See supra Part I.A.
57. See Legal Theory Lexicon, Legal Theory Lexicon 051: Vagueness and Ambiguity, http://lsolum.typepad.com/legal-theoryjexicon/2006/08/legal-theory- le.html (last visited Feb. 6,2010).
58. Michael B. Rappaport, The Ambiguity Rule and Insurance Law: Why Insurance Contracts Should Not Be Construed Against the Drafter, 30 GA. L. REV. 171, 173 (1995);
59. John T. Valauri, Confused Notions and Constitutional Theory, 12 N. KY. L. REV. 567,570-71 (1985).
60. TIMOTHY A.O. ENDICOTT, VAGUENESS IN LAW (2000).
61. Endicott identifies two marks of vagueness: (1) borderline cases; and (2) a tolerance principle, which states that "a tiny change in an object in a respect relevant to the application of the expression cannot make the difference between the expression's applying and not applying." Id. at 33.
62. By "intended or public meaning," I mean to elide the question whether the meaning of a legal text is a function of the author's intentions or the conventional semantic meanings of the words and phrases and the patterns of usage that constitute the rules of grammar and syntax for a given linguistic community. 34 In this Essay, I will not investigate the possibility that a Dworkinian theory of construction might authorize legal content that is inconsistent with semantic content. This is an important question, but its resolution is not required for the purposes of investigating the main implications of the interpretation-construction distinction for Dworkin's view.
63. See supra Part I.A.
64. For the purposes of this simplified version of alternative Dworkin's theory, I am eliding a number of complexities. For example, the object of "fit" might be broader than the semantic content of the authoritative legal texts; it might include the actions and practices of legal actors and institutions. These complications are simply set aside for the purposes of this Essay. 37 DWORHN, supra note 2 (manuscript at 252).
65. Id. (manuscript at 253).
66. Id. (manuscript at 17,97-100).
67. Id. (manuscript at 67-68).
68. There is only one reference to "constructivism" in Justice for Hedgehogs, see DWORKIN, supra note 2 (manuscript at 171), and in oral remarks at the conference, Dworkin disavowed understanding of "constructivism" as a theory. See Dworkin, Response, supra note 5, at 2. On constructivism,
69. see generally Onora O'Neill, Constructivism in Rawls and Kant, in THE CAMBRIDGE COMPANION TO RAWLS 347 (Samuel Freeman ed., 2003).
70. O'Neill, supra note 61, at 348.
71. Id. 64 DWORHN, supra note 2 (manuscript at 17).
72. Id. (manuscript at 75).
73. Id. (manuscript at 10).