Interpretive Theories: Dworkin Sunstein and Ely: January 2005

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Interpretive theories: Dworkin Sunstein and Ely
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INTERPRETIVE THEORIES: DWORKIN, SUNSTEIN, AND ELY

By Tina Hunter*

Introduction

Interpretive theory about the nature of law is the view that ‘legal rights and duties are
determined by the scheme of principle that provides the best justification of certain political
practices of a community: a scheme identifiable through an interpretation of the practices that
is sensitive both to the facts of the practices and to the values or principles that the practices
serve’.1 Interpretivism was first postulated by Dworkin as a criticism of the positivist
school of judicial reasoning2 which focuses on rules in interpretation, and is most
closely asociated with the work of Austin and Hart.3 Dworkin rejects the positivist
conceptions of law and interpretation, instead theorizing that rights are premised
upon a comprehensive set of moral precepts that make individual rights valuable, and
act as ‘trumps’. Interpretivism as developed by Dworkin includes the claim that
interpretation is sensitive to values, and therefore fundamental to interpretivism is
natural law.4

This paper examines modern judicial interpretivism, assessing the theories of Dworkin,
Sunstein and Ely, by comparative analysis, including their advantages and disadvantages.
By applying these theories to a recent judicial decision, it is possible to assess contemporary
judicial interpretive theory in Australia.

The Context of Interpretive Theories of Law

Interpretation of law is fundamental to the democratic system and the Rule of Law.
Indeed, under Section 1 of the American Constitution, there is a separation of powers,
with the various parts of lawmaking made a separate function of the respective
branches of power within the legal system:
* BA (Hons) Syd, G Dip A (LIS) (Dist), M App Sc (LIM) (Dist).
1 Nicos Stavros, ‘Interpretivist Theories of Law’ (Winter 2003) The Stanford Encyclopedia of
Philosophy http://plato.stanford.edu/archives/win2003/entries/law‐interpretivist/> at 12
April 2005.
2 Ronald Dworkin, Taking Rights Seriously (1977).
3 Theodore M Benditt, Law as Rule and Principle (1978), 65‐9.
4 Stavros, above n 1, at 2.
78

LEGISLATURE EXECUTIVE JUDICIARY
Makes Implements Interprets

Law Law Law

The interpretation of the law falls within the function of the Judiciary. The primary
role of the judges is to interpret the law by utilizing many tools available. When trying
to interpret the constitution, there is an effort to attempt to balance against rule‐based
positivism which is indeterminate, (law is impossible to grasp and very hard to
interpret as rule based), with other factors such as values and principles. Interpretive
theory in law involves different views about what approach to interpretation will
make for the best system of law, considering many factors, and setting aside rules as
the only source of interpretation. (This is the debate between rule‐bound vs. rule‐free
statutory interpretation.)

Methods of Interpretation:5
Textualism: insists that the text is the foundation for statutory meaning and it
is binding. Either the text is binding because it reflects the legislature’s intent
or it is binding whether it reflects the intent or not ‐ the principle of textual
priority.

Structural arguments examine words within the structure of the particular
statute and with reference to other provisions in the statute and other statutes.
If a particular word is ambiguous, the structuralist will look to other uses of
the word in the provision and in other laws in order to ascertain a coherent
and consistent definition.

Purpose refers to the general goal of the Congress or Parliament in enacting
the statute and takes into consideration the evil for which the statute is
enacted to remedy. Remedying such evil would then be the purpose or
general goal of the statute. Purpose takes the form of a standard that sets to
5 As identified by Joseph Ferarro, Elements Outline –Legal Philosophy (2002).
79
(2005) 17.2 Bond Law Review
undo the rule‐like nature of a term. The purposive inquiry does not, however,
ascertain the intention of the legislature.

Legislative history (intent): One may look to the legislative history in order to
discern the intention or specific understanding of the legislators that enacted a
particular statute. History can give an ambiguous word a contextual
definition and may clarify the text itself. Attention to legislative history may
also reflect deference to the legislature’s more democratic, specialized and
law‐making primacy.
When interpreting the constitution there is a need to have stability in the
interpretation, to ensure continuity and coherence in law making. There are
essentially two schools of thought in judicial interpretation – originalism, and non‐
originalism:
ORIGINALISM NON-ORIGINALISM
(Looking to past) (Looking forward -
contemporary)
Intention– who, Structure

where, why, Values Gaps
motivation
Text – common Reasons Vagueness/

understanding imprecision
of constitution
The term ‘originalism’ is used to refer to scholars and judges who hold that that a
Constitution should only (or principally) be interpreted according to the
intentions of its drafters and ratifiers.6 This is rule‐like since it defines the answer
to cases before they arise.
6 Stavros, above n 1, at 2.
80
The term ‘non‐originalism’ refers to scholars and judges who utilise other tools
than that of text, intention and structure to interpret the meaning of the law. Non‐
originalists use many other tools such as values, reason and principles to interpret
the meaning of the laws, in order to apply them to individual cases. Within this
school of thought, there are a number of interpretive theorists, and it is this area
that will be considered in detail in this analysis.

The debate between originalists and non‐originalists has been affected by anxieties
about the authority of the Constitution and doubts about the legitimacy of judicial
review. Non‐Originalism focuses on extrinsic factors in the interpretation of the
constitution, such as values, reason, gaps in the law, and vagueness and imprecision,
using principles to assist in the interpretation of the law within the context of the
society it serves.

Advantages of Originalism:

Judicial discretion could be poorly exercised by the Judiciary, yet a system of
rules based on originalism will ensure judicial discipline in interpretation;
Originalism limits in advance judicial decision‐making, and does not threaten
predictability. Alternative approaches introduce uncertainty;
Reduces judicial discretion and makes constitutional law more rule‐like;
These rules have a democratic pedigree by virtue of their connection to past
judgments;
Original understandings are generally sound or just, as are based on previous
tenets;
Original understandings are democratically grounded and subject to
democratic correction.

Criticism of Originalism:

Concrete contemporary questions do not always have concrete historical
answers;
The search for original understandings leads to many indeterminacies;
Rule‐ bound constitution will not result from hard originalism;
New and unanticipated circumstances or changed norms complicate the
attempt to find clear answers in history;
Changing societal norms are not considered within originalist interpretation,
therefore society may be hampered in its natural evolution or development;
81
Hard originalism produces a worse (less just) society due to narrow
confinement of judicial interpretation that has no synchronicity with the
society in which it operates within.

Contemporary originalists such as Bork, and Scalia JJ, as well some positivists (such as
Hart) feel that the text of the Constitution is all that is necessary to reach a conclusion
about Constitutional law. Legal positivism claims that what the law is, as opposed to
what it should be, ought to be the guiding principle in interpreting the text of the
Constitution.

Robert Dworkin, a great opponent of legal positivism, and a leading non‐originalist
interprevist, states that the legal positivist’s ‘plain fact’ method of interpretation is not
quite so plain. Dworkins’ attack on the ‘plain fact’ theory, stating that disagreements
about what the law is are actually disagreements about ‘”the best constructive
interpretation” of some past legal event’,7 heralded the arrival of interpretivism in the
legal interprevist scene. This was previously dominated by positivist and natural law
theories about the nature of law, and has stimulated a great deal of debate. What
follows are the theories of three of the greatest interpretivists of the modern era, and
their impact on contemporary judicial interpretation.

Dworkin’s Interpretative Theory of Law – Judicial Activist

Ronald Dworkin is an American legal philosopher, and professor at both Yale and
Oxford Universities’ Law Schools. Dworkinʹs works, most predominantly Taking
Rights Seriously (1977), rejects the positivist conceptions of law prevalent among legal
realists, instead theorizing that rights are premised upon a comprehensive set of
moral precepts that make individual rights comprehensible. A frequent commentator
on constitutional questions, Dworkin criticized originalist Borkʹs notion of basing
contemporary jurisprudence on the ‘original intent’ of the authors of the constitution,
as unworkable.8 His other important works include A Matter of Principle (1985), Lawʹs
Empire (1986), Lifeʹs Dominion (1993), and Freedomʹs Law: The Moral Reading of the
American Constitution (1996).

7 See Dworkin in Cass R Sunstein The Partial Constitution (2000), 111.
8 Ronald Dworkin, Biography (2005)
<http://www.infoplease.com/ce6/people/A0816492.html> at 16 March 2005.
82
Outline of Dworkin’s Rights Thesis in Interpretation.9

Essentially, Dworkin’s Rights Thesis is a response to Hart (and to some extent,
Kelsen), and the Positivist Movement’s rule‐based law and interpretation. His
response is a two phase attack, and outlines his thesis of interpretation. One of
Dworkinʹs main concerns has been to develop and defend a theory of interpretation,
and to offer an account of how courts (and judges) not only do decide hard cases, but
how they ought to decide hard cases, (i.e. those cases in which the settled rules run
out or in which no settled rule applies).

A. Dworkin’s Response to Hart’s Social Fact Thesis

This thesis asserts it is a necessary truth that legal validity is ultimately a function of
certain kinds of social facts, and the validity of a law is the presence of certain social
facts, especially formal promulgation by the legislature.

In responding to the Social Fact thesis, Dworkin devised a taxonomy of interpretation:
Rules – act in all or nothing fashion
Policy – norms promoting collective goals
Principle – norms protecting individual rights, which tend to incline towards
one direction ,and continue to lead in that direction

In Hart’s form of positivism, when the rules run out, all a judge is left with to make
decisions in hard, or ‘penumbral’ cases, is discretion.10 Dworkin rejects this thesis on
the ground that there are some legal standards the authority of which cannot be
explained in terms of social facts. In deciding hard cases, for example, judges often
invoke moral principles that Dworkin believes do not derive their legal authority from
the social criteria of legality contained in a rule of recognition.11

It is this concern about penumbral cases that fuels Dworkinʹs critique of Hart. His key
insight is his perception that when judges reason about hard cases, they appeal to
principles and other standards beyond positivist rules (i.e. those rules that are
identifiable by virtue of their pedigree, by how they came about as specified by some
set of secondary rules or ‘rules of recognition’). Unlike legal rules, principles have no
discernible ‘pedigree’ in Hartʹs sense. Principles function as a reason in favour of a
particular decision, but do not compel a result in the way a rule does. Also unlike a
legal rule in Hartʹs sense, a principle, such as the principle to which the court referred
9 His rights thesis was outlined in Ronald M Dworkin Taking Rights Seriously (1977).
10 Dworkin, above n 2, chapter 4.
11 Dworkin, above n 2, 40.
83
in Riggs, can, according to Dworkin, remain a principle even though it may not always
be followed. Principles, too, frequently give expression to background rights held by
one of the parties to a dispute, and such rights frequently ‘trump’ or take priority over
other considerations.12

Dworkin believes a moral principle is legally authoritative where it contributes to the best
moral justification for a societyʹs legal practices and interpretation considered as a whole, if,
and only if it satisfies two conditions:

1. the principle coheres with existing legal materials; and
2. the principle is the most morally attractive standard that satisfies (1).13

Therefore, the correct legal interpretation is the moral principle that makes the law the
morally best it can be. Accordingly, in Dworkinʹs view, adjudication is and should be
interpretive.

B. The issue of ‘Hard’ or ‘Penumbral’ case:

In ‘Hard Cases’, Dworkin distinguishes between two kinds of legal argument.
Arguments of policy ‘justify political decisions by showing that the decision advances
or protects some collective goal of the community as a whole’.14 In contrast, arguments
of principle ‘justify a political decision by showing that the decision respects or
secures some individual or group right’.15

Therefore, judicial decisions (even hard ones), Dworkin notes, should be based on
principle, and not policy, since:
Unelected judges are not as good at policy making as the legislature;
Judicial policy‐based decisions amounts to retroactive legislation;
Political decisions should be made by political officials inside of political
theory.

Furthermore, Dworkin believes that judges should, and do, when deciding ‘hard’
cases’:16
Resort to principles, which protect pre‐existing legal rights;
12 A Philosophy of Law, Theories of Law (2002).
< http://people.brandeis.edu/~teuber/lawtheory.html> at 14 April 2005.
13 Dworkin, above n 2, 82‐3.
15 Dworkin, above n 2 82.
16 Dworkin, above n 2.
84
These rights must be concrete, institutional and legal;
In ascertaining such rights, judicial autonomy insulates judges from
background political morality (at least for the major part);
Judges must develop the best available theory supporting other rules in an
area;
If the theory is indeterminative, judges use principles of moral and political
philosophy to fill out the area of law;
Use this same mode of analysis for statutory interpretation;
The Force of Precedent is limited to underlying cases;
This idea of precedent and morals as underpinning the decisions of Judges is
best described by Dworkin’s analogy to the Chain Novel (each successive case
building on the ‘story’ of the last case, to ensure a coherent, readable, developing
story), where judicial interpretation is based on a coherent set of well‐justified
moral principles (eg. Honour, integrity, etc), thus ensuring judicial integrity in
interpretation;
Vertical Integrity – where judges ensure that the decisions are, as much as
possible, consistent with the principles embedded in precedent, and main
structures of constitutional arrangement;
Horizontal integrity – Judges should ensure that principles they take to decide
or govern one case, should be given the full weight in other cases (this
demonstrates clearly the chain Novel concept).

Indeed Dworkin notes:

[J]udges should decide hard cases by interpreting the political structure of their
community in the following, perhaps special way: by trying to find the best
justification they can find, in principles of political morality, for the structure as a
whole, from the most profound constitutional rules and arrangements to the
details of, for example, the private law of tort or contract.17

Dworkin also fervently believes that the job of a judge is a very difficult one, one that
is so difficult so as to be Herculean. Dworkin, then, does not expect that any judge
(except the ideal perfect judge – thus known as Justice Hercules) will always come to
the right interpretation of the law. He does, however, think that there is a correct
interpretation, one which accurately weighs principles, protects natural rights, and is
consistent with the societyʹs morals. Even in very hard cases, Dworkin maintains that
there is a right decision.18 It is with this elusive perfect decision that judges concern
18 Jules L. Coleman and Jeffrie Murphy, Philosophy of Law (1990), 47.
85
themselves, and while they need not find the right interpretation, according to
Dworkin, they are obligated to seek it.

Application of the Rights Thesis to Interpretation

Since principle holds a fundamental role in Dworkinʹs view of judicial interpretation,
it is essential to delineate the difference between principle, policy and rules. Dworkin
claims that judges are obligated to consider principles. What he means by this is that
judges have an obligation when interpreting a law, to take all relevant principles into
account, consider their relative weights, and then determine which principles are
dominant. Two examples of principles provided by Dworkin illustrate how judges
have used principle in determining the judgment of a case.19

In Riggs v Palmer,20 a New York court decided a case in which a grandson who
murdered his grandfather was to also collect the inheritance. The court found that he
could not inherit, even though there were no written statutes to support the decision.
Instead, the court appealed to moral reasoning, citing the principle that no one should be
permitted to profit from his own wrongdoing. This decision was to become a
landmark for many other cases.21

In another case, Henningsen v Bloomfield Motors, Inc.,22 even though there were no
applicable rules (ie statute), a New Jersey court decided that automobile
manufacturers could not claim limited liability for defective parts and the damages
caused by them. The court based its decision on the principle that automobile
manufacturers have a special obligation because, among other reasons, cars are so
essential.23

These examples provide a sense of what Dworkin means by principles. However
Dworkin further explains the distinction between principles and rules. Principles, says
Dworkin, do not necessitate a particular decision the way that rules do. When a clear
rule exists that should be applied to a case, the judge simply applies the rule to decide
the case. Principles are not rules, but rather reasons that the judge takes into
consideration. A crucial distinction between rules and principles, then, is that rules are
20 Riggs v Palmer (1889) NYCA.
22 Henningsen v Bloomfield Motors (1960) 32 NJ 358, Supreme Court of New Jersey.
23 Dworkin, above n 2, 75‐6.
86
applied all‐or‐nothing, whereas principles have a dimension of weight or importance.
When two principles conflict, one principle may supersede another.24

Dworkin on Judicial Interpretation

As illustrated by Dworkin in Riggs v Palmer and Henningsen v Bloomfield Motors,
Dworkin sees judicial interpretation as decisions made within the framework of the
constitution, statute and case law. It is a combination of these three that provides
judges with the ability to make decisions.

Advantages of the Theory

Dworkins rights based thesis has, as its central advantage, the role of principle in
judicial interpretation. As noted in the application of Dworkins thesis above, where
there are competing principles, it is invariable that the broader principle will
dominate, and form the basis of interpretation. Therefore the decision will not be
based upon a set of norms, but rather in response to principles that have always
existed. Hence,
interpretation is successful since it relies upon timeless principles, and there
are two elements of a successful interpretation;
‐ First, since an interpretation is successful insofar as it justifies the
particular practices of a particular society, the interpretation must fit
with those practices of that society (in the sense that it coheres with
existing legal materials defining the practices25 – what we would
define as precedent).
‐ Secondly, since an interpretation provides a moral justification for
those practices, it must present them in the best possible moral light.26
Dworkin’s chain novel analogy provides guidance and direction, establishing a
foundation for judicial interpretation;
It rejects judicial restraint and gives the Supreme Court a large role in
government (for example the role of the Warren Court in the US in the 1960’s);
It protects individual rights, since the majority should not be allowed to
decide what rights the minority has;
Since the Legislature is vulnerable to political pressure, whereas the judges
are insulated, the judiciary is better able to interpret the law according to
principle rather than political pressure.

24 Dworkin, above n 2 77‐78.
87
Disadvantages of the Theory

Dworkin sees the judicial decision‐maker as superhuman (Justice Hercules),
and therefore no human Justice is likely to be able to reach this interpretive
capacity. All other decisions are likely to fall short of this Herculean standard;
The concept of the chain novel may get complicated as norms change and
judicial decisions have to conform within the rules of precedent;
Judges often cannot grasp the systemic effects/consequences of any social
changes (whereas legislatures and bureaucracies may be in a better position to
do so, given their intimate access to the community and research resources);
Judges are drawn from a narrow segment of society and therefore may not be
better at moral and political deliberation than members of other government
branches. In the face of uncertainty and legitimate disagreement on many of
the moral issues, the democratic judgment should prevail;
Judicial Interpretation concentrates power into the hands of the Judiciary.
Rules of interpretation should be designed to minimize the risks of judicial
discretion, especially since many claims of right are made by minority groups;
Democratic governance is an important part of the rights that people have and
this suggests that judges should be cautious before invalidating democratic
outcomes.

Cass Sunstein’s Interpretative Theory of Law ‐ Judicial Minimalist

Outline of the Theory

Sunstein critically analyses the interpretive doctrine of Originalism, championed by
Justices Scalia, and Bork, which asserts that judges are obligated to construe the
Constitution in accordance with the meaning given it by those who wrote and ratified
it. Sunstein instead asserts that ‘the breadth of the words of the Constitution invites the view
that its meaning is capable to change over time’.27 It is with this statement that Sunstein
highlights the heart of the Interpretivist debate.28 In Sunstein’s view, Constitutions can
and should contribute to the establishment of deliberative democracy.

In his interpretivist theory, legislatures and other deliberative forums should resolve
most policy issues, not courts.29 In noting this, he rejects the Critical Legal Studies
emphasis on the indeterminacy of law and the role of judges in protecting and
advancing the interests of the powerful. Instead, Sunstein places great emphasis on
27 Cass Sunstein, The Partial Constitution (1992), 99.
28 Cass Sunstein, above n 27.
29 Cass Sunstein, Designing Democracy: What Constitutions Do (2001).
88
judgesʹ being pragmatic and cautious, deferential to the political processes, anti‐
theoretical and respectful of prior case law, tradition, dominant values and the status
quo.

Sunstein believes that courts should play only a limited role in the governing structure
by using technical doctrines to avoid reaching substantive decisions – judicial
minimalism.30 Analogical reasoning forces a judge to ask: How does this case compare
with those cases that have come before? Sunstein maintains that the use of analogical
reasoning ‘reduces the need for theory‐building...by creating a shared and relatively fixed
background from which diverse judges can work’31 and has the advantage of permitting
judges to decide cases on narrow grounds.

Sunstein’s judicial minimalism is far from conservatives – he sees the courts as
catalysts for public debate through innovative interpretation, an approach he calls
‘democracy‐forcing minimalism’.32 He urges courts to avoid rending the body politic
along lines of fundamental moral disagreement by employing ‘incompletely theorized
agreements’, decisions that look for common ground at the level of practice rather
than principle.33

The ‘tradition‐based’ school of constitutional interpretation provokes Sunsteinʹs ire,
thus providing a platform for his theory of interpretivism. He argues that tradition is
not only a fatally limited guide for constitutional interpretation, it is often downright
dangerous. All countriesʹ traditions contain both good and bad things, and sometimes
the bad things are very bad, whether slavery, apartheid, genocide or other horrors.
The real challenge is how to choose between good and bad, a decision that tradition
can often obscure as much as clarify. Moreover, reflexive adherence to tradition
ignores the fact that norms evolve, whether on the political rights of blacks and
women or the way society views homosexuality.34 As he notes, constitutions
necessarily have both preservative and transformative elements, where transformative
goal is primary for the good of the society:

‘Judicial minimalism, enhances democratic self‐government by letting public
debates stay in the political realm, rather than the court providing broad,
sweeping judgments on contentious issues. My particular areas of concern
include affirmative action, discrimination on the basis of sex and sexual
30 Cass Sunstein One Case at a Time (1999).
31 Case Sunstein, above n 30.
32 Sunstein, above n 29.
34 Sunstein, above n 29, 111.
89
orientation, the right to die and new issues of free speech raised by the explosion
of communications technologies’, he said. A Supreme Court that limits its
decisions just to the questions at hand ‘might promote a democratic nationʹs
highest aspirations without preempting the democratic process’.35

Sunstein notes that a minimalist court is less likely to make errors, and, above all, the
errors they do make will likely be less damaging to society in general. He argues that
minimalism promotes deliberative democracy by encouraging reason‐giving.
Transferring important decisions suggesting minimalism is usually sound ‘when the
Court is dealing with a constitutional issue of high complexity about which many people feel
deeply and on which the nation is divided (on moral or other grounds)’. 36

According to Sunstein, by avoiding foundational constitutional issues through
minimalist decisions, courts protect the liberal political system by ‘mak[ing] it possible
for people to agree when agreement is necessary’ and ‘mak[ing] it unnecessary for people to
agree when agreement is impossible’.37 However an important issue recognised by
Sunstein is the difficulty for judges to evaluate when agreement is necessary or
impossible. He advises that courts should not use the ‘passive virtues’ to ‘perpetuate
injustice’.38

Sunstein supports his claims about democracy foreclosing decisions in his criticism of
Roe v Wade (1973) which he sees as creating ‘destructive and unnecessary social upheaval’,
speculating that a narrower opinion would have ‘produced a range of creative
compromises well adapted to a federal system’.39

Sunstein offers overlapping reasons to support judicial minimalism. First, he contends
that courts are poor instruments of social reform. ‘Study after study’, he writes, has
established that courts are ‘ineffective in bringing about social change’, pointing to Roe
v Wade to support his point. Roe increased womenʹs access to safe abortion, but it did
not ‘dramatically increase the actual number and rate of abortions’.40 Fundamentally,
he contends that Roe produced negative political consequences because it ‘contributed
to the creation of the “moral majority”; helped defeat the Equal Rights Amendment;
prevented the eventual achievement of consensual solutions to the abortion problem;
40 Sunstein, above n 30, at 120.
90
and severely undermined the womenʹs movement, by defining that movement in
terms of the single issue of abortion’.41

Sunsteinʹs sees his concept of judicial restraint as good, Sunstein argues since it
contributes to social stability. Traditionally, judicial restraint denotes an unwillingness
to invalidate legislation. Sunstein’s version of judicial restraint is epitomized by
judicial rulings that strike down laws when appropriate, but only for narrowly
conceived reasons that do not embody ‘wide’ and ‘deep’ implications for other legal
and public‐policy issues. As noted, although he does not claim that the Supreme
Court should have upheld the Texas statute in Roe v Wade, Sunstein is critical of the
Courtʹs reasoning. He maintains that the Court should simply have stated ‐ since the
pleadings indicated that the plaintiff had been raped ‐ that a ‘state may not forbid a
woman from having an abortion in a rape case, or that a state may not ban all abortions in all
circumstances’. Sunstein concedes that such a decision would have left womenʹs right
to abortion in ‘considerable doubt’, but he speculates that the ‘democratic process’
might have done ‘much better with the abortion issue if the Court had proceeded
more cautiously and in a humbler and more interactive way’.

Essentially Sunstein’s is a minimalist interpretive theory, advocating minimal judicial
interpretation, and utilizing tools other than rules to interpret the law, ensuring that
judges have little power to effect social change.


Wishes to leave policy making to the legislature, and not to be part of the role
of judges in contitutional interpretation;
Favours the one case at a time approach , not set precedent for similar but
distinct cases, similar to civil law;
limits the exercise of judicial discretion where no rules can be found. Looks at
the evolution of law and how cases have been decided, how the text has been
interpreted through time. This allows the Constitution to set out general
themes and guidance for current times;
Judicial role is most active and firm where democratic processes are most
likely to break down or least likely to be reliable (eg: if the right to vote is at
stake or when vulnerable classes are at a disadvantage). This should be the
height of theoretical ambition;

41 Sunstein, above n 30, at 122.
91

No precedent for others, is individual in each case. Thus the ‘one case at a
time doctrine’ leaves justices isolated and unable to rely on previous similar
decisions to guide the justice in interpretation;
The theory relies on the interpretation of the court and the ‘power’ of the
Chief Justice. eg Scalia J, and the Warren Court. This is demonstrable by
Sunsteins analysis in One Case at a Time (1999);
Sunsteinʹs endorsement of reaching outside the Constitution for values to use
in interpreting it leaves him vulnerable to the charge that he favours judges
making law out of whole cloth;
His denial that this permits judges free rein makes him seem inconsistent,
denying that a judgeʹs political and social values powerfully influence his or
her constitutional interpretation;
Sunsteinʹs refusal to root the values and perspectives he favors in broad
principles of political morality, combined with his insistence that the Court
develop constitutional doctrine by means of limited, narrowly conceived
rulings, opens him to the charge of favouring an ad hoc, unprincipled
approach to interpreting the Constitution.

Ely’s Interpretative Theory of Law – Judicial Middle Ground

Outline of the Theory

In Democracy and Mistrust42, John Hart Ely’s process‐based examination of the judicial
system identifies faults in the system that are the result of ‘long standing disputes in
constitutional theory’, resulting in discrepancies in judicial decisions. 43

Ely proposes a new approach to judicial review, determining that dilemma
undermining constitutional interpretation are methods left ambiguous to judges, such
as the incorporation of their personal values.44

In his work on Democracy, Ely critically analyses Judicial Interpretivism. He notes
that:
interpretivism is judgesʹ practice of ruling constitutional matters based upon
what is explicitly outlined in the constitution;
42 John Hart Ely, Democracy and Distrust: a Theory of Judicial Review (1980).
43 Ely, above n 41, 1.
44 Ely, above n 41, 43‐72.
92
Noninterpretivism implies that judges may go beyond what it stated in the
document in order to best interpret law.

Ely critiques both interpretivism and non‐interpretivism. He sees interpretivists
following too closely the original intent of the Founding Fathers, and non‐
interpretivists relying too heavily on the integration of personal values. Ely contends
that views are inconsistent with democratic theories of American government ‐
Supreme Court justices are not elected and therefore there are no limitations to their
tenure. This then identifies the problem of judicial review: ‘a body that is not elected or
otherwise politically responsible in any significant way is telling the peopleʹs elected
representatives that they cannot govern as theyʹd like’ 45 since the constitution was ratified
by the people themselves, Americans accepted it as the document controlling their
destiny.46 Thus, judicial review should move past the judiciary, a constitutionally
unrepresentative branch, to the representative branch (legislature), thereby reinforcing
constitutional interpretation through suitable legislation.

Elyʹs first proposal in approaching judicial review is determining values that are
acceptable and necessary in judicial rulings. He notes,

There is simply no way for courts to review legislation in terms of the
Constitution without repeatedly making difficult substantive choices among
competing values, and indeed among inevitably controverted political, social,
and moral conceptions…[the Court] is an institution charged with the evolution
and application of societyʹs fundamental principles with its constitutional
function to define values and proclaim principles.47

Acknowledging that judges will have their personal values, Ely discusses five
elements that should be incorporated or left out judicial processes:
natural law,
neutral principles,
reason,
tradition and
consensus.

Ely is most concerned with natural law because of its vagueness, and tradition
because of the publicʹs view that the past is controlling the present.

47 Ely, above n 41, 43.
93
The idea of natural law is relevant to both the Declaration of Independence and the
Constitution. However, as Ely notes, there is an important difference between how the
notion functions in both documents. ‘Natural law’ was used in the Declaration at a
time when there was no established positive law. Ely states, ‘it was the quarrel with
Britain that forced Americans to reach upward and bring natural law down from the skies, to
be converted into a political theory for use as a weapon in constitutional argument’.48
Therefore, natural law was initially used to attack British policy. Instead, it became the
framework of the entire Constitution, the document that outlines all basic law for the
country. Ely regards this as a particular problem in judicial affairs, as ‘the only
propositions with a prayer of passing themselves off as “natural law” are those so uselessly
vague that no one will notice’.49 Ely sees Natural law as so ambiguous that it simply will
not suffice in tackling all issues of public policy. Nonetheless, it is a widely accepted
and ubiquitous notion, and Ely notes the universality of Natural law and its wide
application.

Tradition evokes a similar ambiguity from Ely, in that it can support virtually any
cause. Moreover, tradition is immensely broad when considering the uncertainties of
whose tradition to consider, who may ‘count’ in traditions, whether or not certain
traditions are relevant, and if so, who is to say? etc. He notes, ‘youʹre in a position to
prove almost anything to those who are predisposed to have it proved or, more candidly, to
admit that tradition doesnʹt really generate an answer…to justify overturning the contrary
judgment of a legislative body’.50

In the 1978 case, Regents of the University of California v Bakke, issues of affirmative
action and racial preferences demonstrate problems of tradition. ‘With respect to the use
of racial discrimination to disfavor minorities, our country has two conflicting traditions.’51 In
the context on minorities, Ely is concerned with the use of tradition to determine the
justice of many causes.

Ely’s critique of judicial review encompasses governmental malfunctioning,
something judicial review aims to remedy, and recognises two types of government
malfunction. The first occurs when representatives prevent political change, and the
second occurs when representatives disadvantage a minority by denying the
protection granted to the majority.

48 Ely, above n 41, 49.
49 Ely, above n 41, 51.
50 Ely, above n 41, 60.
51 Ely, above n 41, 61.
94
Essentially, Ely argues against interpretivism and originalism, contending that ‘strict
construction’ fails to do justice to the open texture of many of the Constitutionʹs
provisions. At the same time, he maintains that the notion that judges may infer broad
moral rights and values from the Constitution is radically undemocratic. Instead, Ely
argued that the Supreme Court should interpret the Constitution so as to reinforce
democratic processes and popular self‐government, by ensuring equal representation
in the political process.

Ely sees the constitution as a naked document, one that is part of the machinery of
answers and a tool of government. The interpretation of the constitution should not
incorporate the use of principles and values. Rather, Ely notes that interpretation
should be part of the political process, with decision‐making as part of the elected
offical political process, rather than that by an unelected judge. The value of elected
officials, notes Ely, is their access to clear channels of political change. This relegates
judges to a position of value where there is an issue concerning minorities.

Essentially, Ely sees decisions in interpretation as those that should be done
democratically, by elected officials, and judges should not interfere. Furthermore,
decisions should be scrutinised only if they are:
self‐serving,
affect the political process
affect discrete or insular minorities.


There are a number of advantages to Elys theory, including:
Ensures focus on the Constitution, as machinery for the decision‐making
process;
Reinforces the democratic process by returning interpretation to elected
officials rather than unelected officials;
No reliance on broad principles or moral rights, as this places value laden
decisions into the hands of the unelected, which is undemocratic;
There is clear and direct access to the political process, without the ‘noise’ of
the process through the unelected official in the judicial process;
Ensures that discrete and insular minorities are treated in accordance with
their needs.


The drawbacks to Ely’s theory include:
95
Focus on the constitutions could be seen as looking back, rather than looking
forward, thus retaining elements of Originalist interpretation;
Concentrates interpretation into the hands of the elected official with no skill
or knowledge of judicial interpretation. At the same time binds the hands of
those most capable of interpreting the law, with knowledge, training, skill and
experience necessary to ensure the rights of all are considered, and the
interpretation has philosophical basis, rather than merely a political basis;
The needs of all classes of persons should be considered in the interpretation
and judicial review process, not merely the needs of a selected class. The
judicial review process should be open and applicable to all, not just to some.

Comparative Analysis

Whilst all of these contemporary interpretivist theorists are supporters of non‐
originalist interpretation of the constitutions, there are many differences in their use of
elements of interpretivist theory, best summarised by the comparative chart below:

ELEMENT DWORKIN SUNSTEIN ELY
Judicial Activity • Judicial Activist – sees the • Judicial Minimalism, and • Critic of judicial review.
role of Justice as paramount decision through analogical Sees the role of the judge as
reasoning – reduces the need confined to those cases where
• Roe v Wade – Decision
for theory building there are discrete or insular
based on the principle that
matters, and confine decisions
right to privacy, and freedom • Roe v Wade – criticised to very few
of the individual. Seen as decision. Sees court as should
correct decision based on have made a decision that had
principle a strict interpretation – right
of the woman to have abortion
in circumstances of rape, and
available in some
circumstances… not broad
sweeping principle
Judicial • Robust approach to • Pragmatic and cautious • People ratified the
Interpretation interpretation approach to interpretation constitution. Interpretation
• Judges in best position to • Limited role of governing belongs to the legislature , not
interpret, as insulated from structure, mainly through the the judiciary, reinforcing
the political process and use of technical doctrines constitutional interpretation
pressure • Sees courts as the catalyst • Interpretation not for the
• Decisions made within for public debate Judiciary. Rather there should
principles that have always be active role of political
• Adheres to ‘Democracy
existed and are ageless, not process (legislature), here
forcing Minimalism’
like norms that flux in decision left to those who are
• notes that some tradition is elected
response to society
bad, so cannot rely on it
96
Use of Principle • Seen as essential. Is the • made decision that look for • no place for the use of
only thing that we have in common ground at level of principle by the Judiciary,
hard (penumbral) cases. Can practice, rather than that of since decision making should be
invoke policy to make decision principle in the hands of the legislature
on all cases, and these
principles are not value laden
and changing, but rather
ageless
Role of Policy • Not for the Judiciary - • The Legislature and other • Interpretation not for the
should be in the hands of the forms of deliberative forums Judiciary. Rather there should
government, as they are should resolve policy issues, be active role of political
greater equipped to decide not courts process (legislature), here
policy, and are part of the decision left to those who are
political process elected
Use of • Major tool in judicial • Respectful of prior case law, • Role of the legislature in the
Precedent interpretation – illustrated and sees need for this to be interpretive process ensure
by the use of the Chain Novel built with traditional values minimal use or value of
where all decisions made by and preserve the status quo Precedent
Judges come together to
form and evolving chain novel
that continues the ‘judicial
story’
Role of the • Essential for Judicial • Can and should contribute to • People ratified the
Constitution Interpretation, and one of establishing deliberative constitution. Interpretation
the cornerstones of democracy belongs to the legislature , not
interpretation. the judiciary, reinforcing
constitutional interpretation

All of the interpretive theorists see the need for the interpretation of policy to be
retained with the legislature. Similarly, all recognise the huge importance of the
constitution in interpretation of law. Dworkin and Sunstein also recognise the
importance of Precedent, in varying degrees, in judicial interpretation, whilst Ely
relegates precedent to minimal value, instead placing a high value on the role of the
legislature.

This is consistent with Ely’s view on the role of the judicature in interpretation of the
law. Ely sees the place of the judiciary as limited, placing a low value on their role in
interpretation, preferring to leave the interpretation to the elected official. This is a
view that is somewhat supported by Sunstein’s judicial minimalist view of
interpretation, which notes that the judiciary should not employ principle to decide
cases, rather at a level of common ground. Sunstein’s minimalist approach encourages
judges to interpret within a framework, discouraging creativity in any form. Rather,
97
he sees judges interpretation to analogous reasoning with a narrow interpretation at
practice level.

Dworkin’s view of judicial decision‐making, rather than advocating a minimalist
approach, instead embraces judicial activism. Dworkin sees the perfect judge as the
one who can make the perfect decision, and it is the role of all judges as trying to find
the right decision, invoking principle rather than policy, practice or rules, to reach that
decision. Dworkin’s theory is unique in that it encapsulates the role of the judge as the
measure a judge should always be attempting to reach in his interpretive process…a
Nirvana that a judge may attain given the right environment of principle, precedent
and judicial decision‐making, where rights are ‘trumps’.

A recent Australian case illustrates how interpretive theories are applied in judicial
decision making, correlating the judicial reasoning of the Australian Justices with
Contemporary Judicial Reasoning.

The Case: Fardon v Attorney General of Queensland52

The scheme instituted under the Act is unique in Australia in that it makes a
prisoner who has been convicted and sentenced for an offence liable for an order
for further detention imposed by a Supreme Court judge, not because of any
further unlawful actions but because of the potential that the prisoner may
commit further unlawful actions.53

Facts of the Case

Relates to ss8 and 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Q),
a State Act which gives the Supreme Court of Queensland the authority to
determine the continued incarceration of a pedophile beyond his sentence;
High Court of Australia Decision in 2004 ‐ full bench (7 Justices) Gleeson CJ,
Hayne, Heydon, Callinan, McHugh, Gummow JJ (majority) and Kirby J
(dissenting);
Relates to the continued incarceration of a sexual offender beyond his
sentence, on the probability that he will re‐offend in the community;
Was challenged by Fardon on the right of the Judicature to continue
incarceration beyond sentence served, and Constitutional Validity of the
52 Fardon v Attorney‐General for the State of Queensland [2004] HCA 46 (1 October 2004) High
Court of Australia.
53 McMurdo P, in Fardon [2003] QCA 416 at [76].
98
Legislature to detain a prisoner for an unlawful act that was yet to be
committed;
The outcome of the case was 6‐1, favouring continued incarceration (Kirby J
dissenting), and validating the Act as constitutional;
The judicial reasoning from the justices was an application of many of the
theories outlined above, particularly from the dissenting Justice (Kirby J), and
his Dworkinian judicial reasoning.

An analysis of the Fardon decision illustrates the application of Judicial interpretive
theory, particularly when deciding a case based on principles, as illustrated in the
comparative table below:

ELEMENT DWORKIN SUNSTEIN ELY
Protection of • Principle-based – principle • Minimal judicial • Is the role of the

the Community of the protection of the interpretation, on a case by legislature to deal with these
community over the right of case basis types of issues (Heydon and
from the
the individual to freedom Callinan JJ). This is a valid
Sexual • View of court to treat on a protective law authorizing the
(Gleeson, CJ, Gummow and
Offender case by case basis, and to involuntary detention for
McHugh JJ)
(unacceptable isolate previous decision of public safety
risk) • Is an important principle, Kable, treating it in isolation
• Is a minority rights issue, so
but there are others that are to Fardon. (Gleeson CJ)
there is a role of the
more important (Kirby, J) see
judicature here, as is insular
below, Acts Right to Detain
matter, confined to few
(Gleeson, CJ)
• Detention not authorized as • Does not impair the • People ratified the
Constitutional
is against the principles of the institutional capacity of the constitution. Interpretation
Validity of the
constitutional right to state supreme court’s to belongs to the legislature. The
Act validity of the Act is vested in
freedom of the individual decide cases, and is best
(Kirby J) fitted for the needs of the the Legislature, and enacted
state (McHugh J) by the Supreme court,
• Is constitutionally invalid as
therefore constitutionally valid
repugnant...vesting Chapter
(Gummow, McHugh, and
III power in Chapter II
Gleeson)
bodies
• Interpretation not for the
Judiciary. Rather there should
be active role of political
process - the protection of the
community is a legislative issue
(Gleeson, CJ Gummow, Heydon,
McHugh, Hayne, Callinan JJ)
Use of Principle • The principle of Double • No place for the use of

Jeopardy needs to be principle by the Judiciary.
protected, (imbued in Should not be deciding
Australian Legislation under principle, merely interpreting
the International Covenant of the legislature in discrete
Civil and Political Rights; as cases (Majority Justices)
99
well as the principle of

freedom of the individual. It
is this right that is ‘trumps’
(Kirby J)
Act’s right to • has no right to detain and • Allowable in this instance – • Legitimacy of Act is
detain the treat in a criminal manner, as not punitive but legitimate, protection of community so
has served sentence; should non-punitive purpose so ok. therefore Act is valid. Is
Prisoner
be dealt with in a civil manner, Consider on case-by-case basis response of the Legislature
as has served criminal (Callinan, Heydon JJ) with the assent of the people
sentence (Kirby J) through the constitution.
(Majority)
Role of the • The independence of the • Limited to interpretation on • Legislature is more

Judiciary Judiciary has been severely a case by case basis important in interpretation
compromised by the
legislature deciding who
should be detained and who
should not. This is the role of
the judiciary (Kirby J)

The above analysis illustrates the scope of judicial interpretation in The Australian
High Court at present. All of the judges on the bench are interpretivists, ensuring that
they consider factors other than intention, text, and structure when interpreting the
constitution. However their interpretation ranges from faithful application of judicial
activist theory as postulated by Dworkin, to the valid role of the legislature in
interpreting law, and everything in‐between. By analyzing the judgments of the seven
High Court Justices, it is possible to illustrate contemporary judicial interpretive
theory.
100
Bibliography

A Philosophy of Law, Theories of Law (2002)
<http://people.brandeis.edu/~teuber/lawtheory.html> at 14 April 2005.

Andrei Marmour, Interpretation and Legal Theory, (1992).

Cass Sunstein, The Partial Constitution (1992).

Cass Sunstein, Designing Democracy: What Constitutions Do (2001).

Cass Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (1999).

Edgar Bodenheimer, Jurisprudence: The Philosophy and Method of the Law (1962).

Fardon v Attorney‐General for the State of Queensland [2004] HCA 46 (1 October 2004) High Court
of Australia.

Fardon [2003] QCA 416 at [76], P McMurdo.

Ian McLeod, Legal Theory (2003).

Marshall Cohen (ed), Ronald Dworkin and Contemporary Jurisprudence (1983).

Nicos Stavros, ‘Interpretivist Theories of Law’ (Winter 2003) The Stanford Encyclopedia of
Philosophy http://plato.stanford.edu/archives/win2003/entries/law‐interpretivist/> at 12 April
2005.

Ronald Dworkin, Biography (2005) <http://www.infoplease.com/ce6/people/A0816492.html> at
16 March 2005.

Ronald Dworkin, Taking Rights Seriously (1977).

Theodore M Benditt, Law as Rule and Principle (1978).

101
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Intention– who, Structure

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Protection of • Principle-based – principle • Minimal judicial • Is the role of the

Use of Principle • The principle of Double • No place for the use of

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