Dworkin and the Theory of Interpretation

Let us assume that the disagreement between the two is sincere and authentic and that, therefore, they were not just “shooting the breeze”, or taunting one another for fun or to pass the time. They really had a disagreement “on the level of ideas” or concepts about the courteous or discourteous nature of Francisco’s behavior the previous evening. We can imagine that the arguments provided by the young men could multiply and become more sophisticated. Let us imagine that Roberto coun­ters by presenting a concept of “courtesy towards women” as follows: “being cour­teous towards a young lady means prioritizing her and offering her presents or favors.” As paradigmatic examples to support the concept, he mentions the easily observed practice of men allowing women to step out first from, holding the car door open for them, not allowing them to carry suitcases and heavy parcels, offering them flowers and candy before a date, etc. With these examples, Roberto attempts to show that his view is appropriate and well suited to the social facts that he used as reference.

What is the meaning of this argumentative practice? Roberto argues that Francisco breached a rule of courtesy. Francisco understands the meaning of his friend’s argument and chastisement, but disagrees. The suggested example is not a false dispute where two people disagree because they are speaking of different things. Quite the opposite, the dispute is sincere because each completely under­stands what the other means to say. However, they disagree as to the best way to understand the concept of courtesy.

Analysis of this example reveals the argumentative dimension of this practice. The central question that drives the two friends’ argumentative social practice assumes the following question: what truth-condition would cause Roberto’s prop­osition - “Francisco was discourteous” - to be true or false? Admitting the absence of a condition of truth, that is, that there is no criterion capable of assigning a truth value to the proposition, it would be difficult to understand even the behavior of the two. Of course, they might hypothetically be simply “simulating disagreement” as a means to pass time, to play at insincere taunts, or just to annoy one another. However, as I noted earlier, this is not the case at hand, this is not the hypothetical case we are building. In the suggested example, Roberto and Francisco argue about the best conception of the concept of courtesy.^[345]

In this case, what correctness criterion might signal that one conception is supe­rior to the other? What might make Roberto’s proposition true or false? Another point must be stressed here. Of course the two friends are not arguing over the best conception of the concept of courtesy based on a merely stipulative definition. Had it been stipulated that being courteous towards women always implies paying their bills, then there would be no dispute to settle. Roberto would be right by definition or by stipulation. In this context, the concept at hand is not criterial, but interpretive, as we will see ahead. In the case at hand, the dispute emerges precisely because the rule that determines the concept of c ourtesy is a social rule, that is, a rule that is intersubjectively constituted.

Their dispute is about the concept of courtesy as socially and normatively under­stood. In this case, the best c onception of courtesy is the one that best interprets a real social normative practice, that maintains a certain fit with a set of socially shared practices serving as a metric or paradigm. But how to determine which con­cept of courtesy best meets the (socially admitted) requirements of what amounts to the “best conception”? The important thing now is not to go to greater depths into Dworkin’s answer to the question. Certainly, this is not a conventional compromise, as the very criteria for what amounts to “the best interpretation” also involve an interpretive question. What is important is to realize that the criterion is argumentatively built, by means of reflection and methodologically regulated con­struction (assuming, for example, consistency, non-contradiction among arguments, clarity, leanness, simplicity, etc.) of the best arguments.^[346] The arguments of Roberto and Francisco, therefore, will be better the more they meet the requirements of what makes a good argument, that is, the dimensions of fit and of the acknowledgement of the criterion’s evaluative appeal. After all, “[...] a plausible interpretation of practice [.] must also undergo a test on two dimensions: it must fit the practice and prove its value or its purpose.” (Dworkin 1986, 239). Simply put, in the arrange­ment proposed earlier, Francisco would have offered a more satisfactory conception of “courtesy towards women,” as it was more comprehensive and consistent with its paradigmatic practices.

The trait that sets the social practice or courtesy apart from the social practice of chess is that the former includes an evaluative-reflective practice on a certain value from the part of the agents (that is, the courtesy value), which is absent in the case of chess. In chess, the rules are made up of shared public standards, or social rules, to use the terminology of H. L. A. Hart. In the case of courtesy, the shared behavior standards are relevant, necessary, conditions, but not sufficient to correctly describe the grammar of the activity. For the Hartian understanding of chess, it would be sufficient to record what the players understood by the rules to which they were subject to be. The example of chess is perfectly appropriate to the understanding of how a criterial concept works, but is inappropriate to describe the functioning of an interpretive concept. Gerald Postema points out that Hart does not in fact explicitly exclude the reflective dimension. However, he does not assign to it any relevant meaning in his hermeneutical understanding of social practice (Postema 2011,422). This one of the reasons why he does not believe that comparing law with a game of chess is in any way inappropriate, as the comparison does not miss anything essen­tial, contrary to what Dworkin claims. It is symptomatic that, in The Concept of Law, Hart always uses criterial concepts for examples, such as baldness, the sum­mit of a mountain, and the concept of the Paris meter standard^[347] (Hart 1994b), instead of examples involving interpretive concepts.

In an argumentative practice such as the one illustrated by Francisco and Roberto’s discussion of courtesy, the propositions of the arguing agents depend on the truth of propositions that only have meaning within that same practice^[348] (Dworkin 1986, 13). An argumentative practice’s distinctive trait is precisely the fact that it assumes the presence of arguments about the practices themselves. However, it is not simply the act of being courteous (in that case, to pay the young lady’s bill or not) and the paradigmatic cases of courtesy - from which come the rules that give the participants reasons to act - that must be considered in an argumentative prac­tice. Even the very action of arguing and challenging arguments about and evalua­tions of courtesy itself is part of the “courtesy game”. An argumentative self-reflection exists here. The argumentation practices involved in the practices of courtesy only gain sense within the argumentative practices themselves, justifying and challenging meaning and conceptions of courtesy. Finally, the arguments about courtesy themselves are also parameters to determine what the best conception of courtesy is.

Gerald Postema accurately points out that

[...] No theoretical account of this kind of social practice can hope to be adequate to the phenomena unless it addresses fundamental questions that arise within this discursive activ­ity of offering and assessing reasons. Such a theory cannot stand outside this practice with­out losing a grip on what is essential to the practice. An external theory of the practice would be a theory of a quite different object, just as a purely physical theory of football articulated in terms of velocity, mass, etc. would have a different object than an account of its strategies would have. In particular, no theory that contented itself with reporting what participants took its rules to mean would be adequate (Postema 2011, 423, highlighted by me).

Therefore, for Dworkin, understanding an argumentative practice about an inter­pretive concept involves understanding the meaning that agents lend to the values and arguments involved in these practices and, as a result, understanding the “inter­nal” (pre-practice) interpretation done by the agents. When Francisco and Roberto discuss whether the behavior of the former did or did not breach a rule of courtesy, they do not report to the meaning they, personally, want to lend to courtesy, but to the meaning of courtesy in a certain shared social context in which they hold the discussion, which, finally, is embedded and referred to in a certain shared form of life.^[349]

Finally, for Dworkin, a philosophical theory of an argumentative practice will have many central aspects in common with that of a concrete practice. It will, how­ever, be more abstract, as it includes an act of interpretation and theorization of the practice itself. It is worth noting that the practice will be normative (because it is governed by rules) and so will the theoretical activity itself. This is because, on the one hand, the construction of the best argument, the best justification and the best conception are also governed by rules (concerning what amounts to the best argu­ment). On the other hand, it is also normative because it acts on the practices’ nor­mative criteria and, therefore, to a certain extent, regulates these criteria as well. In this sense, it involves a certain degree of self-reference or circularity.^[350] The circular­ity, however, is not tautological, but interpretive.

14.2.2 Law as an Interpretive Practice

For Dworkin, law is an interpretive practice because its meaning as a normative social practice depends on the conditions of truth of the argumentative practices that constitute it. It is not a system of rules tout court. It involves a complex web of practical articulations of authority, legitimization and argumentation. Argumentative practices, which are so typical of the daily working lives of lawyers, illustrate how the concept of law is controversial and subject to dispute, as is “the concept of cour­tesy towards women.” Furthermore, the concept only makes sense if one can assume a value of truth for the sentences that enunciate it; otherwise, they would be no more than empty rhetoric. Roberto and Francisco disagree because each one believes himself to be right. Otherwise, they would not be actually disagreeing, but playing at disagreement. Likewise, in most cases (and certainly in their focal meaning), court arguments are arguments that must be taken seriously. This means that law­yers, the “players of the argumentative-legal game,” acknowledge the meaning and possibility of a truth value for their arguments before the courts. The attitude is more typically and ideally perceived in the judge, as he or she, due to institutional neutrality and assumed absence of a material interest in the claim, more clearly acts according to his or her legal conviction.¹¹ Therefore, if some legal cynicism may be more commonplace in the “results-oriented” or “mercenary” practice of attorneys, the attitude is probably less frequent among judges. But even among results-oriented attorneys, moral cynicism, the offer of arguments without conviction, is recognized as normatively disputable, or “degenerate”, indicating that the ideal of argumenta­tive correctness for such professionals must also abide by a criterion of moral correctness.

It is worth emphasizing that this final point articulates with a second characteris­tic of the argumentative practice that, according to Dworkin, eludes the Archimedean views of rival theories. For him, legal practices occur within and impact a context. This contextual impact is measured and evaluated in moral terms. For this reason, the concept of law is a political concept (Dworkin 2006a, 162). It is important to stress that what makes it political is the presence of a point in reference to a claim for moral legitimacy. This is not about acknowledgment of its political nature sim­ply because it involves an influence from the interests articulated in the form of power^{[351] [352] or because they report to a public differentiation between friends and enemies,[353] but rather a demand for moral legitimacy of the exercise of power itself. In Dworkin’s words, “law is a political endeavor whose general point, if indeed it has a point, is to coordinate social and individual effort, or to resolve social and individual disputes, or to ensure justice between citizens and between them and their government, or any combination of the above.”[354]}

According to Dworkin, “The concept of law works in our legal culture as a con­tested concept^[355], [...] because it provides a focus for disagreement on a certain range of issues, not a repository for what has already been agreed” (Dworkin 1983a, b, 255). Furthermore, “[...] it is a political concept because of the manner according to which it is contested. It acquires meaning from the use that is made of it: from the contexts of the debates on what law is and from what turns on which view is accepted’ (Dworkin 1983a, b, 256). The argumentative and discursive nature of law, together with the fact that disputes and controversies are created within it about the best way to conceptualize concepts, lends law an essentially interpretive nature. In other words, the logical grammar of the legal game, in addition to involv­ing a normative social practice, also implies that it is interpretive and not merely conventional.

One of the criticisms leveled against Dworkin’s theory of controversy (based on the notion of contested concepts) was articulated by theorists like Leslie Green (1987), who understood that the point of law was not moral in nature and merely involved eliminating controversy to ensure peace. This school of thought, which dates back to Thomas Hobbes, Hume and Bentham, understood that the purpose of law was to ensure peace by means of the certainty law provides.^[356] For Dworkin, the explanation is not satisfactory because it is unable to explicitly explain legal prac­tices and their assumed points. For him, law is the forum of principle (Dworkin 1985, 33-71), that is, the space for moral-political debate about the topics a com­munity holds relevant. The point of the exercise of political power is driven by the objective of political justice. Note that this is not simply desirable, an ideal and abstract should be, but an intentional characteristic embedded in real legal practices. Clearly, this may mean to some that, being a contested concept, legal and political action is not intentionally driven by the concept of justice or by a specific concept of justice. This clearly may occur and frequently does. However, even if disagree­ment does arise between conceptions of justice that provide the telos, or purpose, of legal practices, this is not to say that the point does not exist. The common situation in contested legal practices is similar to the debate between Francisco and Roberto, where both agree that courtesy is essential at friendly dinners and represents an important aspect of social practice, but disagree as to what conception of courtesy provides the best interpretation of the concept of courtesy.

14.2.3 Interpretation According to Dworkin: The Point of Practices and the Grammars of Concepts

As we attempted to show, Dworkin’s methodological criticism of legal thinking in the final decades of the 20^th century revolved around the Archimedeanism assumed in the descriptivist approach, an approach conceived “from nowhere” that he assigns to his rival theorists and to positivists in particular. The semantic sting was one of his expressions and the emphasis given to his theory of controversy was one of Dworkin’s main arguments in criticizing his rivals. The frame of “Dworkinian agenda” would not be complete, however, without presenting the positive theory he proposed on how to overcome the problems Dworkin sees in the theories he criticizes. His response to the defects present in semantic theories was crystallized in his interpretive theory of law.

As pointed out earlier, Dworkin starts to build his interpretive theory of law in essays published in-between the books Taking Rights Seriously (1977) and Law’s Empire (1986) and later collected in A Matter of Principle (1985). In Law’s Empire, Dworkin recaps his arguments on objectivity and interpretation and develops them more systematically in a positive formulation of law as integrity. For the purposes of this chapter, I am interested in more directly showing the discussion of the assumptions of his theoretical construction, his methodological response, rather than his specific, substantive, answers to topics of a moral, legal and political nature.^[357] Despite their enormous relevance and the interest they attract, I will focus mainly on the methodological agenda they raise.

Ronald Dworkin says in How Law is Like Literature (Dworkin 1985, 146-166) (one of the short texts that, in my opinion, best describe his theoretical project) that legal interpretation can be understood as a particular case of the interpretive endeavor in general. It is very similar to literary interpretation, since in both cases the interpreter drives his or her actions in search of a point contained in the endeavor to be interpreted, be it literature or law. Dworkin writes in his essay that “[...] con­structive interpretation is a matter of imposing purpose on an object or practice in order to make of it the best possible example of the form or genre to which it is taken to belong. [.] A participant interpreting a social practice [.] proposes value for the practice by describing some scheme of interests or goals or principles the practice can be taken to serve or express or exemplify” (Dworkin 1986, 52).

The excerpt enables realizing that, for Dworkin, legal (and literary) interpreta­tion requires the establishment of an Interpretive attitude (Dworkin 1986, 46-47), which, as he rather emphatically notes, is a matter of imposing a purpose on an object or practice, a notion admittedly borrowed from Hans-Georg Gadamer (Dworkin 1986 55, 419-420; reporting to [Gadamer 2002]). This is obviously not about arbitrarily and subjectively selecting and imposing a purpose foreign to the nature of the practice being interpreted. Dworkin is referring to the required engage­ment of the interpreter with the constructive job of discovering (Dworkin 1986,66), finding, describing and assigning a point to practice.

There is a second important aspect to this engagement that concerns the fact that interpreters “[...] characteristically understand that their practice must serve a con­stituent value of practice that each one assigns to the standard this value establishes (and not merely their understanding thereof).”^[358] This engagement is therefore based on two assumptions. “[...] The first is the assumption that the practice of courtesy does not simply exist but has value, that it serves some interest or purpose or enforces some principle—in short, that it has some point that can be stated indepen­dently of just describing the rules that make up the practice.” (Dworkin 1986,47).

Secondly, the requirements of the practice being interpreted (for example, the practice of courtesy towards women, as mentioned earlier), the behavior it demands or the judgment it supports, “[...] are not necessarily or exclusively what they have always been taken to be but are instead sensitive to its point, so that the strict rules must be understood or applied or extended or modified or qualified or limited by that point” (Dworkin 1986, 47). The remark can be made more concrete by return­ing to the previous example of courtesy towards women.^[359] Firstly, it is easy to see that for both Roberto and Francisco courtesy is a value, a positive value. The state­ment that Francisco was discourteous therefore takes on the nature of chastisement in the imaginary dialogue. Furthermore, there is a point to courtesy. This point is essential to its correct conceptualization. Mere observation of the conventional rules of courtesy is a useful and important descriptive effort, but not sufficient to properly understand what courtesy is. The more controversial the case, the truer this is. The very non-existence of such a specific rule about Francisco’s courtesy-related obligation of always paying the bill when he goes out with a young lady are evi­dence of a point that provides the parameters for the proper determination of the meaning and extent of the rule.

Secondly, the example shows that the meaning of courtesy towards women does not purely and simply mean what it has meant in the past. The limits and meaning of courtesy towards women are importantly changed in a world grown morally less sexist and more egalitarian from the angle of gender relations. The point of courtesy therefore plays a crucial role in determining its current normative meaning (Dworkin 1986, 47). This is the means by which one can understand the meaning of courtesy in its best light. This second element adds a critical and reflective dimension to meaning itself. The history of the practice constitutes the practice; but its criticism, which now becomes part of its history as well, transcends the past reference. The conceptual reconstruction of practice integrates the very metric used to evaluate and identify the practice (Shapiro 2011, 8-10).

Dworkin emphasizes that these two aspects of interpretation are independent and that not every social practice is interpretive in the strict sense he assigns to the con­cept. For him,

The two components of the interpretive attitude are independent of one another; we can take up the first component of the attitude toward some institution without also taking up the second. We do that in the case of games and contests. We appeal to the point of these practices in arguing about how their rules should be changed, but not (except in very limited cases) about what their rules now are; that is fixed by history and convention. Interpretation therefore plays only an external role in games and contests. It is crucial to my story about courtesy, however, that the citizens of courtesy adopt the second component of the attitude as well as the first; for them interpretation decides not only why courtesy exists but also what, properly understood, it now requires. Value and content have become entangled (Dworkin 1986, 47-48).

This excerpt clearly indicates the strict meaning of interpretation (which Dworkin will thereafter refer to as “ interpretive’ ’ instead of “ interpretative’ ’) that he finds in some practices - but not in others such as games and contests - that are similar to legal practices. The grammar of legal practices is not well described, as I noted earlier, by its mere comparison with the grammar of games like chess. In its grammatical structure, the game of law looks a lot more like the game of courtesy than chess. As Wittgenstein warned, to prevent the philosophical disease, we must avoid a one-sided diet whereby we nourish thinking with a single kind of example.^[360] Dworkin proposes a dietary change.

In the interpretive-reflective game of law and courtesy, the value of the practice at hand becomes somewhat independent from conventionally accepted rules. Rules become conditioned on and sensitive to values themselves and their evaluative interpretation. In this way, interpreters may recognize that certain conventional and widely accepted practices may be wrong from the angle of the values that provide their basic point. Recognizing the criterion by means of which a practice must be evaluated is not o be confused with conventional practices pure and simple, nor do they merely translate dominant practices. Such shared practices provide a reference. However, understanding their point and identifying the best coherence^[361] for certain practices and conceptualizations will depend on a more complex and reconstructive analysis. As Postema puts it:

The practice does not always make perfect and to assume that a practice serves a worthy value is not to assume that all currently accepted or historically enshrined aspects of the practice do so. A deeper understanding of the complex value or point served by the practice may lead participants to revise their understandings of what that practice requires or authorizes. And since interpretation is an integral part of the practice, this deeper under­standing of the practice will alter their actions and potentially the practice itself (Postema 2011,426).

According to Dworkin, “[...] interpretation folds back into the practice, altering its shape, and the new shape encourages further reinterpretation, so the practice changes dramatically, though each step in the progress is interpretive of what the last achieved” (Dworkin 1986, 48). At this point, a return to the example of courtesy might lead to new conclusions. We could argue, for example, that even if Roberto were able to find repeated practices (and even a majority of them, in the context of the discussion) based on an etiquette of courtesy driven by traditional courteous behavior (such as listing the restaurants where men usually pay the bill, counting the number of times men yield to women at the elevator door, etc.), Francisco might still be correct in his interpretation of courtesy that would forever release him from paying the entire bill when he went out to dinner with a young lady. This might be case, for example, were he able to find arguments applicable to a significant portion of paradigmatic courteous behaviors that, consistently with the point of the practice, provided the best interpretation for it.

I earlier proposed that Francisco might argue that courteous treatment assumes treating women with dignity and equality and, that, as a result, automatic preferred treatment is often discourteous. This might be the case were he to invite a militant feminist to dinner who might understand the act of sharing the tab as symbolically offensive. Even if Roberto never accepted this argument and the dispute never saw a consensus, it would be accurate to state, under the circumstances, that Francisco was right and his critic was wrong. The criterion for correctness, from this angle, does not depend on consensus or certainty, but on the presence of better supporting arguments.^[362]

Obviously, the criterion for the correctness and truth of his arguments would itself depend on other interpretive assumptions and unavoidably open to challenge. According to Francisco’s argument, his justification would depend on the equally challengeable concepts of equality and dignity. In this sense, an interpretation’s evaluation criterion has no outer aspect. The interpretation’s challengeability or defeasibility, however, implies neither the absence of a correctness criterion, nor preference for one interpretation over others. Reconstructive interpretation must address any skeptic objections. Challengeability always leaves room for a consen­sual or even hegemonic interpretation to be challenged. The form of the challenge, however, as Dworkin will point out, must come from an interpretive viewpoint. Only a new (interpretive) interpretation may effectively challenge another interpre­tation. There is no room for an external challenge, one from without the interpretive- argumentative game itself. The interpretive game does not admit Archimedean viewpoints external to the interpretation itself. One interpretation will only be supe­rior to or better than another if, and only if, according to the rules of interpretive reconstruction, it better meets the requirements for what the best argument is. Note that the “concept of best argument’ is also interpretive. The search for an evaluation criterion outside the interpretive game would be remindful of the imaginary hypoth­esis Wittgenstein described, where the reader of a newspaper doubted what he had just read and bought a second copy to verify the information.^[363] In this sense, if an interpretation lacks an outer side, an external point of view capable of evaluating it, then its (interpretive) rejection will lack it as well. For Dworkin, external skepticism towards interpretations is impossible. The only viable and possible form of skepti­cism is the one represented by internal skepticism, that is, by the kind of skepticism that argumentatively attempts to show the inexistence of a better argument of crite­rion for the interpretive correctness of a certain practice (Dworkin 1986, 64; 78-85; 237).^[364]

Back once again to the dialogue on courtesy, we might argue that the only way for Roberto to show that Francisco’s interpretation of courtesy is wrong would be by argumentatively deconstructing it. It would not be possible to argue, ex-ante, that a correct or superior interpretation does not exist. Such an endeavor, then, would be inevitably interpretive in and of itself. What would be impossible is to argue ex ante, from without, without engaging in the interpretive task, that no criteria exist to determine that a better interpretation exists. Insofar as interpretation assumes iden­tifying the point and value of the principle or interest involved in the practice, inter­pretation becomes an unavoidable path. When we think about interpretive concepts such as courtesy, law, or the arts, we are bound to play the interpretive game. The Archimedean game is impossible. Trying to play the Archimedean game with inter­pretive objects means to play a different game and not to talk about the same thing or interpret the same object. It is comparable to providing a sociological description when asked about the morality of a behavior. It would be similar to translating the question “was slavery considered morally correct in Greece in the 5^th century b. C.?” as “was slavery morally correct in the 5^th century b. C.?” The former question concerns the conventional morality (a fact) of the times. The latter concerns a value or non-value assigned to the practice of enslavement. It would be like saying that we were obligated to do something when we mean that we had an obligation to do something.

A new clarification may avoid confusion surrounding this argument. Clearly, up to a certain point, there may be an “external” sociological interpretation. Max Weber’s comprehensive sociology, based on the assumption that values are irratio­nal preferences and, therefore, mere rationally irreducible positive expressions of will (Kronman 2009, chapters 2-3), may yield an enlightening and useful analysis of many social practices. In general, much of the theoretical production of anthro­pologists and sociologists shares this dimension. It is also important to clarify that not all practices regulated by social rules have the strict interpretive dimension we find in courtesy, as they do not involve interpretive concepts. In these cases, in the absence of the dimension of value and principle, the kind of interpretation involved might dispense with the “circular” inner dimension I have described earlier. A her­meneutical sociological analysis (such as Weber’s) might involve considering the “inner” meaning of the action in a detached manner not committed to the described “interpretive game”.

In this sense, the Dworkian interpretation is not properly a rival of the classic sociological interpretation, as many critics - and Frederick Schauer^[365] (Schauer 2009, 35-44) in particular - appear to suggest, but rather a philosophical approach to certain interpretive practices of a reflective, normative and evaluative nature, such as law. Classic sociological analyses may be highly relevant to the determina­tion of the interpretive materials involved in legal practices. Their approach, how­ever, is incomplete and limited to a part, or a moment, of the interpretive activity needed for an appropriate description of what law is. Dworkin does not intend - contrary to what Hart argues in the postscript to The Concept of Law^{[366] [367] - to engage in a project separate from the Hartian law description project. He understands, how­ever, that the appropriate description of law, given its unique characteristics com­pared to other, normative, social practices such as chess, demands a philosophical and reconstructive approach to the concepts and values that make up its evaluative point.21 Games like chess form a subset of social normative practices that do not involve a reflective interpretive activity of and within the practice. As Postema summarizes:}

It follows that the case for the appropriateness of constructive interpretation for understand­ing a given practice must follow a precise protocol. It must be shown that an apparent regu­larity is not merely a matter of habitual behavior, but normative, and not merely normative, but reflective, and not merely reflective but internally critical in a way that supports the interpretive attitude. Clearly, to show that constructive interpretation is indicated for a given social practice is already to engage in interpretation - and that interpretation may be contested. Dworkin would surely not deny this (Postema 2011, 428).

According to some critics, the negative consequence of this interpretive concep­tion of law is that it disregards the institutional dimension. For positivists in general, law is a social practice based on the institution of an authority, be it as the sovereign power constituted by regular obedience (Austin), be it as the recognition of exclu­sionary reasons to obey (Raz). For them, this essentially institutional dimension of law made the analogy with chess far more convincing. For positivists, although the normativity of law is partially reflective, normative interpretation and arguments are deemed external to the practices that constitute law. They are, at the most, “[...] investigations that explore the grounds to support or amend the rules, but do not offer considerations in favor of conclusions about that the rules of the practice cur­rently are” (Postema 2011,428). As a result, some positivists have accused Dworkin of offering an unacceptable argument, since its explanation would require them to accept something they deny, that is, that internal normative reflections exist in the game of law. Andrei Marmor represents this kind of criticism when he argues that Dworkin, on formulating his criticism of positivists, relies on an interpretive assumption they do not accept. In this sense, the Dworkian critique is question beg­ging, as it does not offer an argument opposite the positivist perspective, but assumes the thesis it aims to prove (Marmor 2005, 27-46).

This might lead to the conclusion that the struggle between positivists and non­positivists, such as Dworkin, would not be appropriately comparable, insofar as they emerge from different starting points. The two offer different constructions that are, to a certain extent, irreconcilable, as their starting points cannot be directly confronted or challenged. The Dworkinian response to this is surprising and inge­nious. Although it may appear purely rhetorical at first glance, it does not seem to counter even the dominant attitude between the contemporary advocates of positiv­ism and Dworkin himself. The central issue to be answered, Dworkin says, is this: which of the two interpretive approaches (external or internal) is more illuminating for legal practice? The answer to this question, again, can only be interpretive. On the one hand, it depends on the existence of better interpretive criteria capable of showing its fit with the reality one wants explained. Ultimately, the existence of a best-fitting approach depends on the integrity and fit of the theory as a whole, that is, of its ability to answer a series of philosophical challenges in an articulate, coher­ent and integrated manner. In a very particular way, the best approach should be judged based on its ability to provide satisfactory answers to central questions of contemporary philosophy, such as the possibility of objectivity in morals, the nor­mative criteria for the construction of a theory of justice, etc.

Dworkin offers a more concrete answer in his rejection of the analogy of chess to explain law. In Law’s Empire he argues that a more comprehensive observation of law allows identifying court decision patterns over a longer period of time (Dworkin 1986, 136-138). Such an observation would allow spotting changes in legal rationality patterns that cannot be explained based on a conventionalist assumption. The best understanding we can achieve of those implies identifying the internal criticism movement that affected them.^[368] A correct interpretation of the his­tory of law itself and the changes its rationality underwent showcases the internal nature of the normative criticism of law. In other words, the conventionalist expla­nation fails because it does not fit well with a correct interpretation of the history itself of legal practices. An appropriate interpretation of legal interpretive materials over a longer period of time would show this inadequacy. This is an important dimension of Dworkin’s interpretive theory for the history of law.

Postema summarizes this point for Dworkin as follows:

Lawyers, judges, and legal academics did not merely challenge the conventional, accepted ground-rules; they challenged the underlying “orthodoxies of common conviction” in which the more superficial agreement on the rules was rooted. However, these arguments “would have been powerless, even silly,” Dworkin maintained, “if everyone thought that the practices they challenged needed no support beyond convention or that these practices constituted the game of law in the way the rules of chess constitute that game” (Law’s Empire, p. 137). Over its history, the substance of the practice of American law, for exam­ple, has changed in profound ways, but much of this was driven by internal argument, chal­lenge, and adjustments to them. Over its history, judges in the American legal system, for example, treated the techniques they use for interpreting statutes and measuring prece- dents—even those no one challenges—not simply as tools handed down by the traditions of their ancient craft but as principles they assume can be justified in some deeper political theory, and when they come to doubt this, for whatever reason, they construct theories that seem to them better. (Ibid., p. 139) Dworkin, then, rested his case for the strongly interpre­tive approach to legal practice on an interpretation of its history (Postema 2011, 430).^[369]

14.2.4 Stages of Interpretation

Finally, it is important to point out that Dworkin attempts to show how the stages of constructive interpretation are established. Although their purpose is chiefly heuris­tic ad didactic, they help understand the structure of the interpretive process. Each stage has a distinctive requirement for the level of consensus needed for interpreta­tion. As shown earlier, during the analysis of a given social practice, such as cour­tesy, law or art, there must be a pre-interpretive stage that identifies the rules and standards or paradigms deemed to provide the experiential content of the practice (Dworkin 1986, 65 et seq.). In the case of courtesy, this stage involves gathering the interpretive material made up of common practices, paradigms, examples, illustra­tions of courtesy as portrayed in literature, film, etc. In the case of the determination of a film’s aesthetic qualities, the stage involves identifying a consensually recog­nized repertoire as exemplary cases of “film”, “action film”, “good action film,” etc. These materials allow identification of the paradigms of the practices at hand - for example, the film “2001: a space odyssey” as a paradigm for a “good science fiction film.”

It is worth stressing that, in a sense, this “pre-interpretive” stage already involves some degree of interpretation. Dworkin clarifies: “I write ‘pre-interpretive’ in quotes because, even at this stage, some kind of interpretation is needed. Social rules lack identifying labels” (Dworkin 1986, 66). This early phase involves a more intense sharing of the materials. As Dworkin writes, “But there must be a high degree of consensus - perhaps an interpretive community may be usefully defined as needing consensus at this stage - if one expects the interpretive attitude to be fruit­ful and one can, therefore, abstract from this stage in ones analysis, assuming that the classifications it offers are treated as a given in everyday reflection and argu­mentation” (Dworkin 1986, 66).

After this early stage comes an “ interpretive stage” in which the interpreter relies on a general justification for the main elements of the practice identified in the “pre- interpretive' ’ stage. This will amount to an argument about the reasons why, if at all, it is worth searching for a practice with this general form (Dworkin 1986, 66). This interpretive moment now takes on an argumentative dimension. In this sense, “[...] The justification need not fit every aspect or feature of the standing practice, but it must fit enough for the interpreter to be able to see himself as interpreting that prac­tice, not inventing a new one.” The important point to emphasize is, as noted earlier, that at this stage judgments are made about the fit and justification (or evaluative appeals) that form the heart of the interpretive conception.

Finally, Dworkin indicates a post-interpretive, or reforming, stage at which the interpreter “[...] adjusts his sense of what the practice “really” requires so as better to serve the justification he accepts at the interpretive stage” (Dworkin 1986, 66). He offers an example: “An interpreter of courtesy, for example, may come to think that a consistent enforcement of the best justification of that practice would require people to lip their caps to soldiers returning from a crucial war as well as to nobles” (Dworkin 1986, 66). At this point, however, some challengeable possibilities can be found: “Or that it calls for a new exception to an established pattern of deference: making returning soldiers exempt from displays of courtesy, for example. Or per­haps even that an entire rule stipulating deference to an entire group or class or persons must be seen as a mistake in the light of that justification” (Dworkin 1986, 66).

Of course, in a real society, the stages would be less evident and stark. Notwithstanding, one might establish a similar analysis of its practices. How might we recognize these criteria for a given society’s rules? Dworkin’s response is clearly Wittgensteinian^[370]: “People’s interpretive judgments would be more a matter of seeing at once the dimensions of their practice a purpose or aim in that practice, and the post-interpretive consequence of that purpose.” (Dworkin 1986, 67). This is how agents “pick up the rule”. “And this seeing would ordinarily be no more insightful than just falling in with an interpretation then popular in some group whose point of view the interpreter takes up more or less automatically” (Dworkin 1986, 67). In other words, there are no “ultimate grounds” for this recognition. It is the sharing itself of a form of life that will enable the members of a community of meaning to “see” how the criterion exists and works.

This, however, will not avoid controversy. After all, people may not see exactly the same things, or may interpret things in different ways. Disagreement, therefore, may arise either in the recognition of the paradigmatic practice and the rule or, even more so, when arguing about the best justification of the latter. What then, is the level of sharing or consensus needed to enable such an interpretation? Dworkin’s answer is once again inspired in the Wittgensteinian concept of form of life. The excerpt below sums up his thinking rather well:

We can now look back through our analytical account to compose an inventory of the kind of convictions or beliefs or assumptions someone needs to interpret something. He needs assumptions or convictions about what counts as part of the practice in order to define the raw data of his interpretation at the pre-interpretive stage; the interpretive attitude cannot survive unless members of the same interpretive community share at least roughly the same assumptions about this. He also needs convictions; about how far the justification he pro­poses at the interpretive stage must fit the standing features of the practice to count as an interpretation of it rather than the invention of something new (Dworkin 1986, 67).

In this excerpt, Dworkin clearly shows how and why convictions are part of the interpretive attitude. They are constituents of the inevitable human and intersubjec- tive point of view such an attitude involves and assumes. There is no room for a “view from nowhere.” As Dworkin likes to insist: “The interpretive situation is not an Archimedean point, nor is that suggested in the idea that interpretation aims to make what is interpreted the best it can seem. Once again I appeal to Gadamer, whose account of interpretation as recognizing, while struggling against, the con­straints of history strikes the right note” (Dworkin 1986, 62).

In order to survive, an interpretation must fit the form of life of the community in which it is presented. It would be appropriate, however, to ask how to measure the fit of an interpretation. How to tell when a good interpretation better fits the real­ity it attempts to describe? Dworkin once again explains using the example of cour­tesy: “Can the best justification of the practices of courtesy, which almost everyone else takes to be mainly about showing deference to social superiors, really be one that would require, at the reforming stage, no distinctions of social rank?”. He pro­ceeds: “Would this be too radical a reform, too ill-filling a justification to count as an interpretation at all? Once again, there cannot be too great a disparity in different peoples convictions about fit; but only history can teach us how much difference is too much” (Dworkin 1986, 67).

The excerpt clearly shows that there is an external, transcendental criterion from without the social practice that may serve as a metric for fit. But how and why will history teach us? Through the confrontation of interpretive practices and the pro­duction of “interpretive materials” that will enable us to justify the best interpreta­tion possible of them. In other words, there is no outer side of the interpretive process.^[371]

Finally, it is important to once more emphasize the active role of convictions on the values that govern the social actions being interpreted. Therefore, insisting on the previous example:

He will need more substantive convictions about which kinds of justification really would show the practice in the best light, judgments about whether social ranks are desirable or deplorable, for example. These substantive convictions must be independent of the convic­tions about fit just described, otherwise the latter could not constrain the former, and he could not, after all, distinguish interpretation from invention. But they need not be so much shared within his community, for the interpretive attitude to flourish, as his sense of pre interpretive boundaries or even his convictions about the required degree of fit (Dworkin 1986, 67-68).

Substantive convictions, therefore, establish a requirement of sharing (or con­sensus) other than that required in the “pre-interpretive” phase. This is because the field of controversy on the various conceptions of a single concept is vast and unavoidable. Many will claim that the meaning of practice is the one lent by the agent’s personal intent. One might, therefore, ask: if the courteous meaning of an action is given by the conviction of the agents, how to avoid subjective interpreta­tion? If Francisco’s courtesy depends on his own conviction as much as Roberto’s depends on his, how to assign a value of truth to the proposition that the former was discourteous? In order to answer this question one must first clarify the relationship between the point of social practices and how it connects with the forms of life in the community in which they acquire sense.

14.2.5 Practical Intent and Forms of Life

One of the recurring questions in interpretive discussions concerns the meaning of the point. In the domain of artistic interpretation, a consolidated debate exists on the topic. We might ask, as Dworkin himself did, whether artistic interpretation inevi­tably consists in uncovering an author’s intentions. We might also ask whether uncovering an author’s intentions is a factual process independent from the values of the interpreter himself.

Dworkin answers that artistic interpretation is not simply about recovering an author’s intention: “[...] if by “intention” we mean a conscious state of mind and do not lend the statement the meaning that artistic interpretation always attempts to identify a specific conscious thought that coordinated the entire orchestration in the author’s mind when he said, wrote, or created his work” (Dworkin 1986, 57). Artistic intention is far more complex. This is due to the fact that, in artistic inter­pretation, the notion of the author’s intention, when it becomes a method or style of interpretation, itself implies the interpreter’s artistic convictions^[372] (Dworkin 1986, 57). Furthermore, even within the tradition of artistic interpretation, the theory according to which the best way to interpret art is through the artist’s personal inten­tions is subject to challenge (Dworkin 1986, 57). Besides, this would prevent artis­tic interpretation from being neutral and objective, as the interpreter would have to explore someone else’s motives and purposes. Finally, this does not appear to be the way in which we use language when we speak of artistic interpretations. After all, “[...] it is characteristic of such practices that an interpretive statement is not just a statement about what other interpreters think” (Dworkin 1986, 55). The question stands, therefore.

How could this form of interpretation ever hope to uncover something like an author’s intention, be it in the arts or in any other form of social activity, without implying either the impossibility of objective interpretation or pure subjectivism? Dworkin counters the challenge as follows: “Two possibilities exist. One might say that interpreting a social practice means to uncover the purposes or intentions of the other participants in the practice, such as the citizens of the hypothetical commu­nity, for example” (Dworkin 1986, 55). In this case, the intention would refer to each intention taken individually. But another possibility exists: “Or that it means to uncover the purposes of the society that houses this practice, conceived as having some mental form of life or group awareness” (Dworkin 1986, 55). The former alternative seems more appealing, as it does not involve somewhat mysterious con­cepts like “mental form of life or group awareness”. But the alternative is not viable for the reasons provided in the foregoing paragraph. The latter alternative, then, must be chosen. A preliminary distinction must be made, however. “A social prac-

tice creates and assumes a crucial distinction between interpreting the acts and thoughts of individual participants, in that sense, and interpreting the practice itself, that is, interpreting what they do collectively.” (Dworkin 1986, 63). In this respect, Dworkin resumes the social meaning of the rules that create patterns for the evalu­ation of behaviors and values. As Wittgenstein, Winch and Hart argued before him, rules are social.

Dworkin ponders that “[...] this distinction would be of no practical importance if the participants in a practice always agreed on how to best interpret it. But they do not, at least on details, when the interpretive attitude is lively” (Dworkin 1986, 63). At this point we return to the different levels of consensus that must be found at the various stages of the interpretive process as seen in the previous topic. This, however, is far from meaning that a basic, background, consensus need not be pres­ent among the participants, who

[.] must, to be sure, agree about a great deal in order to share a social practice. They must share a vocabulary: they must have in mind much the same thing when they mention hats or requirements They must understand the world in sufficiently similar ways and have inter­ests and convictions sufficiently similar to recognize the sense in each other’s claims, to treat these as claims rather than just noises. That means not just using the same dictionary, but sharing what Wittgenstein called a form of life sufficiently concrete so in at the one can recognize sense and purpose to what the other say a and does see what sort of beliefs and motives would make sense of his diction, gesture, tone, and so forth. They must all speak the same language” in both senses of that phrase. But this similarity of interests and con­victions need hold only to a point: it must be sufficiently dense to permit genuine disagree­ment, but not so dense that disagreement cannot break out (Dworkin 1986, 63).

In short, for the interpretation process to occur and in order recognize “inten­tions” that do not merely translate subjective purposes, the interpreters must share a single form of life. This sharing is at the same time, and almost paradoxically, what enables and ensures disagreement.³³ Returning to the argument of the previous item, one may claim, as Dworkin did:

So each of the participants in a social practice must distinguish between trying to decide what other members of his community think the practice requires and trying to decide, for himself, what it really requires. Since these are different questions, the interpretive methods he uses to answer the latter question cannot be the methods of conversational interpretation, addressed to individuals one by one, that he would use to answer the former. A social scientist who offers to interpret the practice must make the same distinction (Dworkin 1986, 63).

Finally, it is worth pointing out another contrast between Dworkin’s position and Max Weber’s hermeneutics. For the former, merely reporting the opinions and val­ues of a community and how these beliefs affect their behavior might amount to a kind of hermeneutical sociological “explanation”,

But that would not constitute an interpretation of the practice itself; if he undertakes that different project he must give up methodological individualism and use the methods his subjects use in forming their own opinions about what courtesy really requires. He must, join the practice he proposes to understand; his conclusions are then not neutral reports

about what the citizens of courtesy think but claims about courtesy competitive with theirs. (Dworkin 1986, 64).

In other words, sociology does not perform the same kind of interpretation required in the contexts of creative, artistic or social interpretation. This also means that because sociological interpretation lies seated on a conversational interpreta­tion model, is inappropriate to interpret law from the angle of the theory of law. For Dworkin,

[...]Conversational interpretation is inappropriate because the practice being interpreted sets the conditions of interpretation: courtesy insists that interpreting courtesy is not just a matter of discovering what any particular person thinks about it. So even if we assume that the community is a distinct person with opinions and convictions of its own, a group con­sciousness of some sort that assumption only adds to the story a further person whose opinions an interpreter must judge and contest, not simply discover and report. He must still distinguish, that is, between the opinion the group consciousness has about what courtesy requires, which he thinks he can discover by reflecting on its distinct motives and purposes, and what he, the interpreter, thinks courtesy really requires. He still needs a kind of inter­pretive method he can use to test that entity’s judgment once discovered, and this method cannot be a matter of conversation with that entity or anything else. (Dworkin 1986, 665).^[373]

Starting in the 1990s, Dworkin attempts to clarify the scopes and domains of these different ways of interpreting law, by introducing new conceptual distinctions to help explain the meaning of a sociological, jurisprudential and doctrinal under­standing of law (that is, relative to the truth value of legal propositions). Analyzing it, however, would excessively expand this paper’s scope and ambition.

14.3