JURISPRUDENCE 1

(LAW531)

A RESEARCH PAPER ON APPLIED JURISPRUDENCE

TOPIC : DWORKIN THEORY OF CONSTITUTIONAL
INTERPRETATION BY JUDGE.

GROUP:
LWPLK9DY

PREPARED BY:
Zarith Sofia Dora binti Mat Samoin 2014209616
Nurshakirah Binti Abdullah 2016653002

PREPARED FOR:
PROF EMERITUS DATO’ DR SHAD SALEEM FARUQI
 Dworkin, as positivism's most significant critic, rejects the positivist theory on every
conceivable level. Dworkin denies that there can be any general theory of the existence and
content of law; he denies that local theories of particular legal systems can identify law
without recourse to its moral merits, and he rejects the whole institutional focus of positivism.
A theory of law is for Dworkin a theory of how cases ought to be decided and it begins, not
with an account of the political organization of a legal system, but with an abstract ideal
regulating the conditions under which governments may use coercive force over their
subjects1.

Dworkin is most famous for his critique of Hart's legal positivism; he sets forth the
fullest statement of his critique in his book Law's Empire. Dworkin's theory is 'interpretive':
the law is whatever follows from a constructive interpretation of the institutional history of
the legal system.

Dworkin argues that moral principles that people hold dear are often wrong, even to
the extent that certain crimes are acceptable if one's principles are skewed enough. To
discover and apply these principles, courts interpret the legal data (legislation, cases etc.) with
a view to articulating an interpretation that best explains and justifies past legal practice. All
interpretation must follow, Dworkin argues, from the notion of "law as integrity" to make
sense.

Out of the idea that law is 'interpretive' in this way, Dworkin argues that in every
situation where people's legal rights are controversial, the best interpretation involves the
right answer thesis, the thesis that there exists a right answer as a matter of law that the judge
must discover. Dworkin opposes the notion that judges have discretion in such difficult cases.

Dworkin's model of legal principles is also connected with Hart's notion of the Rule
of Recognition. Dworkin rejects Hart's conception of a master rule in every legal system that
identifies valid laws, on the basis that this would entail that the process of identifying law
must be uncontroversial, whereas (Dworkin argues) people have legal rights even in cases
where the correct legal outcome is open to reasonable dispute. Dworkin moves away from
positivism's separation of law and morality, since constructive interpretation implicates moral

1
"Legal Positivism (Stanford Encyclopedia of Philosophy)". Plato.stanford.edu. 2003-01-03. Retrieved 2013-02-
14.
judgments in every decision about what the law is. Despite their intellectual disagreements,
Hart and Dworkin "remained on good terms."2

Key to Ronald Dworkin’s Constructive Interpretation of legal practice is the

conception of Law as Integrity. Law as integrity holds a vision for judges which states that as
far as possible judges should identify legal rights and duties on the assumption that they were
all created by the community as an entity, and that they express the community’s conception
of justice and fairness.

According to law as integrity, proposition of law are true if they figure in or follow
from the principles of justice, fairness and procedural due process, which provide the best
constructive interpretation of the community’s legal practice. Law as integrity states that the
law must speak with one voice, so judges must assume that the law is structured on coherent
principles about justice, fairness and procedural due process, and that in all fresh cases which
comes before them, judges must enforce these so as to make each person’s situation fair and
just by the same standard – that is to say, treat everyone equally.

Dworkin argues that, law as integrity offers a blueprint for adjudicator which directs
judges to decide cases by using the same methodology from which integrity was derived viz,
constructive interpretation. Integrity is both a legislative and an adjudicative principle.
Legislative principle requires law makers to try to make the laws morally coherent.
Lawmakers are required to ask the assumption that integrity is a distinct ideal of politics, for
politics, and honors politics. If it fits these dimensions, then adjudicative principles is ready
to begin.

Central to Dworkin’s project that to develop a theory of adjudication it is necessary to

engage in a constructive interpretation of legal practice. Adjudicative principles instruct that
the law be seen as coherent in that way, as far as possible. Constructive interpretation is a
methodology for interpreting social practices, texts and work of art. The distinctive feature of
this is that it is argumentative.

Dworkin sets out three stages; Firstly, the judge (or lawyer) has to know the data (pre-
interpretive stage), secondly the judge must evaluate it and advance it in its best possible light
(interpretive stage) and then thirdly, legal questions can be settled as there will be one right
answer or the best answer which fits as discussed above. The pre-interpretive stage therefore

2
Hodgson, Godfrey (2013-02-14). "Ronald Dworkin obituary". The Guardian. ISSN 0261-3077. Retrieved 2017-
04-16.
can constrain discretion, as the judge will have to take into account texts and other relevant
materials such as earlier cases. So, Dworkin draws on an analogy of the chain novel to
explain this incremental historical constraint on later judges (although the first judge has no
such constraint). Even though there is some constraint, the judge retains the ability to
evaluate and interpret the law in a manner which he/she feels fits with the previous judgments
while balancing it against 'coherence' or the relevant moral substantive standards of the
society such as social goals as well as principles of justice to come up with the single right
answer or the best answer.

The process of constructive interpretation is made up of three analytical stages: (1)

Pre-interpretive stage, (2) Interpretive stage, (3) Post-interpretive stage. In the Pre-
interpretive stage, a participant identifies the rules and standards that constitute the practice.
Then, in the interpretive stage, the interpreter settles on some general justification for those
elements identified at the pre-interpretive stage. At the post-interpretive stage, participant
adjusts his sense of what the practice really requires so as to better serve the justification he
accepts at the interpretive stage.3Of the three stages, the interpretive stage is the pre-eminent.
The proposal must satisfy two dimensions: (1) it must be consistent with the data identified as
constituting the practice at the pre-interpretive stage; (2) he must choose a justification that he
believes shows it in the best light.

For Dworkin, the historical legal record must constitute the source of legal
interpretation: this interpretation must fit into the existing both of legal materials. It should
not be thought that a judge committed ton law as integrity is required to interpret laws in the
light of the purposes which gave rise to them. On the contrary, he is required to impose order
over doctrine, not to discover order in the forces that created it. 4Dworkin is compelled to
conclude that what constrain interpretation is not historical legal materials in some objective
sense, but the judges convictions about “fit”. According to Dworkin, the constrain upon
judges arises from their personal need as individuals to integrate their convictions about “fit”
with their convictions about whether their interpretation shows the interpreted practice in its
best light.

To understand “fit” Dworkin employs the idea of the ‘Chain Novel’. Imagine that a
number of novelist agree to write one chapter each of a proposed novel. Clearly, there will be

3
Williamson, Marcus (15 February 2013). "Professor Ronald Dworkin: Legal philosopher acclaimed as the finest
of his generation". The Independent. London.
4
Allard, Julie. Dworkin et Kant: Réflexions sur le judgement. Bruxelles: Editions de l'ULB, 2001
constraints of ‘fit’ upon the author of the second chapter, constraints which will increase
through each successive chapter.5Because law as integrity sees the law as a coherent whole,
law as integrity requires the judges to go through the whole law to consider an interpretation.
The interpreted law as integrity holds that judges would both fit and justifies what has gone
on before as far as possible.

Just as the interpretation within a chain novel, in law it is a delicate balance of

political convictions of different sorts. In law, as in literature, these must be sufficiently
related, and yet disjointed to allow an overall judgment that trades off an interpretation’s
success on one standard against failure on another. If, for example, it is decided in the case
of McLoughlin v O’Brian (1983) that Mrs. McLoughlin deserves compensation for her
injury, then the question that we need to analyze is whether legal practice is seen in a better
light if the community accepts the principle that people in Mrs. McLoughlin’s position
deserves compensation.To the positivist, in the McLoughlin case, the judges must exercise
discretion and make law, which is then applied retrospectively to the parties in the case.It is
noted that, if the judge is guided by law as integrity, he is directed to regard as law what
morality would suggest to be the best justification for past decisions. If this is so, a judge
deciding McLoughlin employs his own moral convictions. If the judge is satisfied that the
law as he understands it favors Mrs. McLoughlin, he will feel justified in thus deciding
whatever the present legislature thinks, whether or not popular morality concurs.

Law as integrity provides a consistency in principle which requires that various

standards governing the states use of coercion against the citizen be consistent in order to
have a single vision of justice.6If a judge deciding the McLoughlin case is tempted to decide
against Mrs. McLoughlin, he would first ask himself whether any principled distinction can
be drawn between her case and other mothers who suffer emotional damage at the scene of an
accident.

Positivism is different from law as integrity because it rejects consistency in principle

as a source of legal rights. Positivism does not require judges to justify their decisions to the
entirety of the law. Positivism does not consider the law as having an integral life of its own.
Positivism will present the law as comprising of a set of discrete decisions, which judges

5
2 RONALD DWORKIN, FREEDOM’S LAW: THE MORAL READING OF THE AMERICAN
CONSTITUTION 32-39 (1996)
6
Brown, Alexander. Ronald Dworkin's Theory of Equality: Domestic and Global Perspectives. New York: Palgrave
Macmillan, 20
have the discretion to make or amend law.7On the contrary, law as integrity sees the law as a
coherent phenomenon, rather than a set of discrete decisions. Law as integrity requires judges
to justify their decisions to the entirety of the law, which is considered to have an integral life
of its own.

Consistency in principle supposes that people have legal rights which follows from
legislation and precedents which enforce coercion. Mindful of this, law as integrity supposes
that people are entitled to a coherent and principled extension of past decisions even when
judges disagree about what that means.Positivism denies this, since it denies consistency in
principle as a judicial virtue for dissecting ambiguous statute and in exact precedents to try to
achieve this. The methodology of Dworkin’s model judge, Hercules, emphasizes this point.

Law as integrity requires judges to treat the techniques that they use in interpreting
statutes and measuring precedents not simply as tools handed down by the legal system, but
as principles they assume can be justified in political theory, and when that is in doubt they
construct a theory of the system to better them.

To Dworkin, no mortal judge can or should try to articulate his instinctive working
theory or make theory so concrete and detailed, that no further thoughts will be necessary
case by case. He must threat any general principles or rules as thumb he has followed in the
past as provisional and stand ready to abandon these in favour of more sophisticated and
searching analysis when the occasion demands. It is nevertheless possible for any judge to
confront fresh and challenging issues as a matter of principle, and this is what law as integrity
demands of him.8Law as integrity is at best a conception for hard cases. Law as integrity
explains and justifies easy cases as well as hard cases and it also shows why they are easy. So
easy cases are, for law of integrity, only special cases of hard cases, and, to Dworkin, we
need not ask question when we already know the answer. The process of adjudication
inherent in the theory of law as integrity yields right answer to question of law. For Dworkin,
in most hard cases there are right answers to be hunted by reason and imagination.

Ronald Dworkin offers us some guidelines on how the Constitution should be

interpreted. In situations where judges are faced with unjust laws, he rejects the natural law
principle of lex injusta non est lex (unjust law is not law). But he invites judges to mitigate
the harshness of unjust rules by viewing the law holistically. A provision of the Constitution

7
"Legal Positivism (Stanford Encyclopedia of Philosophy)". Plato.stanford.edu.
8
Cohen, Marshall, ed. Ronald Dworkin and Contemporary Jurisprudence. London: Duckworth, 1984.
should be read in the overall context of the rest of the Constitution. Posited rules should be
read in the light of non-rule standards, principles and doctrines, which together constitute the
majestic network and seamless web of the law. Explicit rules should be balanced against the
implicit principles and framework-assumptions of a rule of law society. The Constitution
should be subjected to a morally charged, constructive interpretation. The judge should reject
the face value, plain view or literal meaning approach to interpretation. The original
intention of the law-maker theory should also be rejected.

Interpretation should be rights-based and principle-based. The central concern of the

interpreter should be with purposes and not with meanings. Rights should be treated as
trumps and should override considerations of general welfare.

In sum, interpretation should be based on rights and principles. The provisions of the
Constitution should be viewed holistically in the context of the entire system of laws and with
regard to the moral principles, doctrines, standards and framework assumptions that are
implicit in the basic law. Interpretation should be morally charged and constructive. Its
fundamental purpose should be to safeguard not only textual rights, but also rights that are
implicit in the Constitution’s scheme of things.

Moreover, if judges are faced with novel situations, they should not wring their hands
in despair. They should reach out into the heart of legal darkness where the flames of
precedent fade and flicker and from there extract raw materials to fashion a signpost to guide
the law. Judges must vigorously enforce constitutional constraints on the power of
government. For instance in the Singapore case of Ong Ah Chuan v PP [1981] 1 MLJ 64 that
in a Constitution that purports to assure fundamental liberties, all references to “law” refer to
a system of law which incorporates the fundamental rules of natural justice.

Instead of a literal construction, a purposive interpretation should be adopted. The

central concern should be with purposes, not meanings. In Liyanage v R [1967] 1 AC 259 the
Privy Council declared a statute unconstitutional not because it infringed any express
constitutional provision but because it compromised judicial independence and was contrary
to the constitutional scheme of things. Likewise in Dato’ Yap Peng v PP [1987] 2 MLJ 311 a
provision of the CPC was invalidated because it conferred on the executive a power to
transfer cases which the court regarded as being part of the “judicial function”.
 A Constitution differs fundamentally in its nature from ordinary legislation passed by
Parliament. Canons of construction applicable to ordinary statutes should not be applied
rigidly to constitutional instruments. In Dato Menteri Othman Baginda [1981] 1 MLJ 29 the
court expressed the view that on constitutional issues, previous precedents need not be strictly
followed. They must be subjected to a situation-sense. As the House of Lords said in United
Australia v Barclays [1941] ACI at 29: “When these ghosts of the past stand in the path of
justice clanking their medieval chains, the proper course for the judge is to pass through them
undeterred”. Further, “a Constitution being a living piece of legislation must be construed
broadly and not in a pedantic way – with less rigidity and more generosity than other Acts.”

In Teh Cheng Poh [1979] 1 MLJ 50 it was observed that in applying constitutional
law the court must look behind the label to the substance. Thus the government’s labelling or
description of a law as a piece of subsidiary legislation could not camouflage the fact that it
was an Ordinance in disguise that was promulgated by the Yang di-Pertuan Agong long after
Parliament had come back to session and, therefore, unconstitutional.

The judiciary is not just a legal institution but it is also a moral institution. It can and
should advance constitutionalism and rule of law in the country by providing moral
leadership in the areas of social justice and social amelioration. It should take a stand against
racial, religious and gender prejudices and also lend the weight of its authority against
exploitation of the poor, the weak and the marginalized. The constitution was promulgated to
protect all sections of the population and to give shade to the rich as well as the poor. This
point needs to be driven home in many corners of the world. No judiciary has an absolutely
clean record.9

9
Constitutional Interpretation In A Globalised World by Prof. Dr. Shad Saleem Faruqi