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In Law, what is Interpretivism?
Interpretivism, sometimes called legal interpretivism to distinguish it from similar schools of thought in other disciplines, is a school of legal philosophy commonly associated with American legal philosopher Ronald Dworkin. Interpretivism views law as being interpreted by the practice of lawyers and jurists, and claims this is the nature of law itself. Unlike other schools of legal philosophy, interpretivism views law not as something imposed from outside, but as a product of the practice of law. Interpretivists claim law has a relationship with ethics and morality, but that they are not the same.
Legal interpretivism was developed in the late 20th and early 21st centuries. It emerged into a legal world dominated by two ways of thinking about the philosophy of law — legal positivism and natural law theory. Interpretivism has some similarities to both schools of thought and some important differences. It has sometimes been thought of as a middle ground between the two.
Natural law theory is the older of the two schools of thought. Like all legal philosophies, it contains several diverse points of view, but all share the basic idea that there is an underlying natural law that serves as the foundation for manmade law. Natural law consists of basic principles of fairness, justice, and equity that transcend cultural boundaries, and manmade or "positive" law should respect these. In some traditions, natural law is believed to proceed from divine or supernatural sources, while others see it as inherent in human nature.
Legal positivism is a school of thought that says laws are made by human societies, not discovered in nature, and have no inherent connection to ethics or justice, except insofar as these considerations influence the people who create them. Legal positivists are more concerned with studying the ways in which laws are created and applied. Positivism is concerned with understanding the human institution of law, not endorsing or opposing any particular law or way of making laws.
Legal interpretivism has some similarities with both schools of thought. Like proponents of natural law, interpretivists agree there is an external purpose for law; they do not, however, believe laws exist independent of human construction. Like legal positivists, they accept that the law is a product of human society and politics. Unlike legal positivism, however, interpretivism contends legal practice is justified by reference to outside values, and argues that the act of interpretation is actually part of the process of making and defining law.
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Discussion Comments
@SkyWhisperer - I don’t know. However, I do know there is a difference between the role that the judges play and those that the lawmakers play.
I don’t think either interpretivism or natural law have any reference to the duties of judges. Their role is not to make laws (they’re not supposed to, anyway) so I think what’s at work here is the work of the legislative branch and not what judges do in rendering their decisions. That’s my take from this piece, anyway.
@MrMoody - It seems that the interpretivist definition seems ambiguous in its reference to what the “external purpose” is. However, if you read further into the article you get an idea of what it could be. There is a reference to outside values.
Perhaps the external purpose has to do with values that exist in other cultures. For example, are judges allowed to make a ruling by referring not only to the Constitution, but also to values enshrined by the United Nations, or even in more extreme cases, Sharia Law?
While that sounds farfetched, it has actually happened. Are these other institutions the “external” purposes that interpretivist critical theory allows?
@nony - I think that it’s fair to ask, then, if the interpretivist view lends itself to ideas such as situational ethics?
If, as the article states, the interpretivist believes that all laws may have an external purpose, but don’t exist outside of human construction, then I think it’s saying the law is what we make it, wouldn’t you agree?
In other words, it’s right if society says it’s right. I don’t understand what the “external purpose” would be in that context but it’s clear that there is no divine association implied. The idea that the interpretation of the law is in itself part of the law seems, to me at least, to be very subjective.
In this regard, I believe that interpretivist view is more likely to embrace situational ethics. That is, ethics may vary from one situation to another depending on human experience.
I believe that natural law has a longstanding tradition at least in American culture, from the early days of the Republic. America was founded with the belief that laws extended from divine Providence. This is the clear implication of the words that we are “endowed by our Creator with inalienable rights.”
If you believe that God is the source of all rights, then it follows that laws which we create must adhere to laws that are handed down by the Creator. Some people have taken this a step further, to argue that the existence of natural law in the human spirit – the innate sense of fairness and justice, for example – by definition proves that God exists.
This was the line of reasoning that Christian apologist C.S. Lewis took in his book Mere Christianity. Whether you buy that conclusion or not, I think it’s clear that belief in natural law is part of our heritage.
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