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40 Austl. J. Leg. Phil. 66 (2015)
Understanding and Interpretation: A Fresh Defence of Dworkin's Interpretivist Account of Law

handle is hein.journals/ajlph40 and id is 74 raw text is: 





         'Understanding' and 'Interpretation':
              A Fresh Defence of Dworkin's

              Interpretivist Account of Law

                          GAUTAM BHATIAt




This essay is a defence of the interpretivist account of law, i.e., of the claim that
'morality... figure[s] in the constitutive explanation of law. It joins a long-
standing debate between positivism (the claim that 'the existence and content of law
depends upon social facts [alone]'2) and interpretivism in legal philosophy, which
commenced with H.L.A. Hart, Ronald Dworkin and Joseph Raz, and has since been
continued by a number of scholars in a variety of shapes and forms. It contributes to
the contemporary debate by responding to a recent defence of positivism, advanced
in particular by Andrei Marmor, Scott Soames and Martin Stone. This defence
holds that since law is a communicative enterprise, determining legal content
ultimately depends upon accurately determining the linguistic meaning of words or
phrases. This, in turn, requires us to apply the best - or correct - linguistic theory in
order to determine legal content. By using linguistic theory, these scholars then
locate the famous distinction between 'easy' and 'hard' cases within a broader
distinction between 'understanding' and 'interpretation', and argue that no
interpretation (i.e., no normative enquiry) is involved in deciding easy cases (which
require only understanding, i.e., a non-normative social practice of rule-
following). I shall argue that whatever the validity of this distinction in ordinary
linguistic communication, it cannot be applied to the legal enterprise. On the very
terms used by the positivists, there is no legal case that begins and ends with simple
'understanding'. Every case, easy or hard - as originally argued by Dworkin -
requires interpretation, which is, ultimately, a normative enquiry.



      BCL, MPhil (Oxford), LLM  (Yale); Visiting Faculty, West Bengal National
      University of Juridical Sciences, Kolkata, India. I thank Professor Nicos
      Stavropoulos for guiding me through my exploration of the themes of this article,
      Professor Leslie Green for his rigorous Jurisprudence tutorials that first got me
      thinking about these issues, and Mr V Niranjan for being, as ever, my first reader. My
      thanks, as well, to two anonymous peer reviewers for their acute and detailed
      comments.
      Nicos Stavropoulos, 'Legal Interpretivism' in The Stanford Encyclopedia of
      Philosophy, http://plato.stanford.edu/entries/law-interpretivist/, visited on 26th
      December, 2015.
2     Leslie Green, 'Legal Positivism' in The Stanford Encyclopedia of Philosophy,
      http://plato. stanford.edu/entries/legal-positivism/, visited on 26th December, 2015.

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