부산대학교 도서관

This chapter argues that adjudication is steered by the application, rather than interpretation, of the law, showing that Ronald Dworkin's emphasis on interpretation is driven by the focus of his work on rights-based law. Dworkin's approach to interpretation appears to be entirely detached from authorial intention. Ranged against Dworkin are the holders of the originalist position. Extreme originalism would tie law to the Constitution interpreted as the framers would have intended its abstract language to be taken to mean. In the process of constructive interpretation, history is invoked by Dworkin at three stages: initially, in the shape of the historical circumstances generative of the Constitution; then, as legal history regulated by the doctrine of stare decisis, the principle that preceding decisions should be followed or at least respected; and third, in the form of the history of the nation. When Dworkin contends that the Constitution should not, indeed cannot, be interpreted according to the established canons for law made by legislatures, he is surely right. It is dubious logic to infer from the conjunction of two principles, whose clear meaning is to afford constitutional protection against cruel punishment in the one case and against lynching in the other, that their combined effect is to sanction the use of capital punishment by the state. Yet to reject that inference is far from amounting to endorsement of the moral reading as the basis of the uniquely right interpretation of the law.