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Action in Law’s Empire: Judging in the Deliberative Mode

Rodriguez-Blanco, Veronica (2016) Action in Law’s Empire: Judging in the Deliberative Mode Canadian Journal of Law and Jurisprudence, 29 (2). pp. 431-456.

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Abstract

Dworkin advances the view that judges decide legal cases according to the methodology of constructive interpretation and, 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 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 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 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?

Item Type: Article
Subjects : Law
Divisions : Faculty of Arts and Social Sciences > School of Law
Authors :
NameEmailORCID
Rodriguez-Blanco, VeronicaUNSPECIFIEDUNSPECIFIED
Date : 26 July 2016
Identification Number : https://doi.org/10.1017/cjlj.2016.19
Copyright Disclaimer : This article has been published in a revised form in Canadian Journal of Law and Jurisprudence http://dx.doi.org/10.1017/cjlj.2016.19. This version is free to view and download for private research and study only. Not for re-distribution, re-sale or use in derivative works. © Cambridge University Press
Related URLs :
Depositing User : Melanie Hughes
Date Deposited : 22 Jul 2016 15:22
Last Modified : 17 Mar 2017 10:01
URI: http://epubs.surrey.ac.uk/id/eprint/811336

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