INTERPRETACIÓN, AJUSTE E IGUALDAD DIRECTA

Abstract

This paper addresses Dworkin's accounts of interpretation and integrity while assuming both legal positivism to be false and legal and moral objectivity to be true. It claims that essential to the idea of interpretation is the idea of 'making something your own', and concludes that interpretation for law, as for democracy, grounds out on what people actually believe. It follows that calling the process of assessing legal practices a matter of 'constructive interpretation' is misleading since the appeal of Dworkin's theory of interpretation lies simply in its providing (sound) moral criticism of existing practices by reference to a very abstract conception of equality. This conclusion is borne out by Dworkin's distinction between arguments of 'fit' and 'substance' in legal reasoning, since it is clear that arguments of fit are just disguised arguments of substance. Lines of fit gain their force mainly from the moral principle that reasonable expectations should be met, and also the principle of democracy that the legislature has the moral right to legislate. The paper's overall conclusions are that Dworkin's theory of integrity is practically orientated to the real world and so is only a theory of the 'second best', and that law modelled on the ideal of justice better serves as a model against which theories of the real world can be assessed. In particular, on the model of justice, judges could never be required to lie (as Dworkin acknowledges might be the case for integrity), the very close connection in ordinary understanding between law and justice is preserved, and pivotal legal cases can be better understood as involving direct appeals to justice.