Is Interpretative Jurisprudence against Democracy?
Author: Priyadarshini Venkatesh. 3rd Year B.A LL.B. (Hons.),
Abstract
The Philosophers of early modernity- like Austin and Bentham- believed in the possibility of knowledge telling man the truth of the human condition. They believed in Legal Positivism which fit the ideas of neutrality, objectivity and Rule of Law. But this drive of knowledge has created a multitude of perspectives of knowledge, each with their interpretation. This interpretation raises the question of the moral and political stance of the interpreter. Hence, it led to the shift from Legal Positivism to Legal Liberalism, from Early Modernism to Post- Modernism, and the rise of Dworkin’s Theory of Interpretation. Dworkin’s Theory of Interpretation was a struggle against disenchantment which provided two outcomes, either to give up on science and accept that all claims that knowledge gives us the truth are fraudulent, or that social science becomes a human project. The latter is the human responsibility with which Dworkin seeks new objectivity for legal discourse and new meaning for legal practice with Legal Liberalism. Legal Liberalism is one of the most cherished principles of Democracy which protects the Freedom of Speech and Expression of the public. On the contrary, Noam Chomsky believes that the Right to Freedom of Opinion and Expression is not absolute. He states that the smart way to keep people passive and obedient is to strictly limit the spectrum of acceptable opinion, but allow very lively debate within that spectrum. He also believes that the general public does not know what’s happening and it doesn’t even know that it doesn’t know as dissent lies in the hands of those in power. He believes that this act curbs Democracy.
This paper draws out a comparative analysis between Ronald Dworkin’s Theory of Interpretation and Noam Chomsky Idea on Dissent and Power. It focuses on the two outcomes of disenchantment, and if Chomsky’s Idea of Dissent and Power, with disenchantment leading to negative Nihilism, would lead to a Dystopian society, or if Dworkin’s Theory of Interpretation with Legal Liberalism would lead to a society with human responsibility. Secondly, it focuses on the importance of dissent and interpretation as a core feature of Democracy and the practice of the same in Democratic countries. This research paper is descriptive in nature with the use of secondary data analysis.
Keywords: Interpretation, Power, Dissent, Democracy
I. Introduction
Modernity was founded by the Enlightenment; one aim of the Enlightenment was to make it possible for humans to see things as they truly are. The writers of early modernity like Austin believed that attaining a state of transparency enables us to have confidence in our social constructions and we become fully self- conscious. But they also believed in the possibility of knowledge telling mankind the truths of the human condition. In Austin’s synthesis ethics, political economy, positive law and belief in social progress were intertwined. The dream of transparency is now compromised. The drive to knowledge has created a multitude of perspectives, of knowledge- claims, each with their presuppositions and techniques for viewing. The proliferation of images of reality entails that we lose, in part at least, our ‘sense’ of reality.[1]
But Dworkin looks at these perspectives as the rise of Legal Liberalism, interpreting
the correct law by taking into consideration the various opinions based on presuppositions. But Noam Chomsky, on a contrary state, that this interpretation is constrained by those in power as they hold the force and opinion.
the correct law by taking into consideration the various opinions based on presuppositions. But Noam Chomsky, on a contrary state, that this interpretation is constrained by those in power as they hold the force and opinion.
II. Ronald Dworkin- Methodology of Interpretative Jurisprudence
Interpretation raises the question of the moral and political stance of the interpreter. A person interprets something by observing an element in reality and pictures a theory based on it. The truth of our theories was not a reflection of the objectives entities of the reality of the world,[2] but the result of our interpretative faculties as we went about our practical business of living within and belonging to the world. Interpretation became the new methodology for the late- modernity. It occurs within a community, a tradition, and moves in a circular process of seeking to understand the whole in terms of its parts, and parts in terms of their contribution to the whole. Dworkin believes that this interpretation is important for law, unlike legal positivism.
Positivism seemed to fit with the ideas of neutrality, objectivity, and certainty that the ideology of the rule of law required, as well as with the ideas of a rational instrument of governance that the notion of legislative reason demanded. In other words, it made the exercise of power a rational process; administration was (at least it was presumed to be) by reason and knowledge rather than by political choice without secure guidance. Legal positivism seemed to make the positive law clear cut[3]. But what if knowledge is a reflection of a false one and claims that this is the ‘law’? In the case of Legal Positivism, it is either simple and true, or false and hence the asserter is claiming for something the status of law when it is not law. Dworkin attempts to change this narrow and objective method of viewing Law and introduces the idea of 1legal Liberalism.
III. Legal Liberalism
One may argue that the interpretive turn against Legal Positivism may invite Nihilism; may invite the chaos of interpretation and opinions of people floating everywhere. Dworkin tries to respond to this prospective nihilism by drawing out two outcomes from disenchantment. Disenchantment occurs when man realizes that the world does not have an ‘objective meaning’, and he understands that it becomes man’s task to create an ‘objectivity for meaning’; furthermore, the interconnection of meaning and ‘reality’ is his responsibility. This disenchantment invites two outcomes: either we give up on science and come to accept that all claims that knowledge gives us the ‘truth’ or fraudulent and that life is in itself ‘meaningless’ (negative nihilism), or we take up the challenge and accept that social science becomes a human project. The first course encourages passivity or decadence. The second, human responsibility, which is Dworkin’s project. He seeks new objectivity for legal discourse and a new meaning for legal practice, a practice which he enthuses with a particular ethical commitment, a Legal Liberalism.
For Dworkin, the very act of interpreting, that is, making sense of activity, presupposes that the activity to be interpreted as a point and purpose to it. Social activity can only be understood by interpreting it in light of the meaning it has for the participants.
Throughout his work Dworkin takes the interpretative turn over positivism, yet seems to keep some of the legacies of positivism. He has increasingly claimed that his theory is not only an interpretation, but it is faithful to the material- it is the ‘truth’ of law. His interpretation will be faithful to the enterprise of law and not strip it of its latent meaning; refusing to discuss the nature of law with external observers, it will ignore sceptical comments and better articulate law’s ambition for us so that we can conjoint our efforts.
IV. Law’s Empire- the idea of Rule of Law
Of the law speaking to us, he calls upon us to treat the law as written by the community personified. Legality is portrayed as not only one human project among many others, but the master project, furthermore as a project which has succeeded; in its rhetoric and structure Law’s Empire[4] is pure expressionism. Law embodies commitment, conviction, integrity and pursuit of truth and we must believe in the possibility, if not the immediate attainability of a right answer to legal and moral problems. Law appears a complex human practice, in large part constituted by the interpretative action of the player who orientates themselves- at least ‘ideally’- by means of a self-conscience, the idea of the Rule of Law, Law’s Empire. Thus, the interpretative project gains confidence that it can produce a true understanding of the law if it provides an integrated account of the law’s ideas.
V. The Dilemma of Right Law
There is an ever-existing dilemma of whether we should accept the idea of the right answer based on law or morality. Dworkin provides two ways of reaching this conclusion. The first one involves the relatively weak assertion that since the nature of law involves handling and resolving disputes it is part of the practical reasoning of law that an answer must be sound for the dispute. The second one is to look for the traditional presuppositions involves in the very processes and practices of legal and political argument.[5]
Dworkin’s first step is to distinguish strong and weak discretion. Strong discretion is where the officials are not bound by preexisting standards set by some authority. Weak discretion is when the standard cannot be applied mechanically- there is a need for consideration and evaluation of what the standard means in a new case. By implication, in the second case, there are no gaps in the law. Weak discretion is necessarily part of the judicial role and is acceptable. It is an internal discretion which is constrained by law and, in particular, by the reality that every hard case has a legally correct answer.
We, through our social interactions, provide a structure of law. Through a philosophical and interpretative jurisprudence, we can answer questions of identity, and further the progressive development of our socio- political-legal history.
VI. Noam Chomsky- Force and Opinion
The contention with Dworkin’s theory of Interpretative Jurisprudence is that it is only prescriptive and not descriptive. It is a theory of what the law and judicial decision- making ought to be like rather than what it is like. Does this mean that the concepts of neutrality, objectivity, universality and impartiality are redundant, or that they simply obscure the basic issue specifically that knowledge is a question of power and politics? The reality of how the law works and is implemented is very much the contrary, which Chomsky focuses on. So, isn’t Dworkin’s theory just another ‘interpretation’?
Further, sceptical commentators argue that no coherent integrated account of political and moral values as underlying a society such as the U.S. can be found. Instead of conflicting principles which can be reconciled under a best constructive interpretation, the sceptics see incoherence and contradiction. Chomsky describes how the elites and people in authority have the power of not only force but also opinion. He uses David Hume’s paradox of Government to explain this.
VII. David Hume: Paradox of Government
Hume was an astute observer.[6] His insight explains why elites are so dedicated to indoctrination and thought control, a major and largely neglected theme of modern history. “The public must be put in its place,” Walter Lippmann wrote, so that we may “live free of the trampling and the roar of the bewildered herd,” whose function is to be “interested spectators of action, not participants. And if the state lacks the force to coerce and the voice of the people can be heard, it is necessary to ensure that the voice says the right thing, as respected intellectuals have been advising for many years.[7]
Hume’s observation raises several questions. One dubious feature is the idea that force is on the side of the governed. Reality is grimmer. A good part of human history supports the contrary thesis put forth a century earlier by the advocates of the rule of Parliament against the King, but more significantly against the people: the “the power of Sword is, and ever hath been, the Foundation of all Titles to Government.”[8]Force also has more subtle modes, including an array of costs well short of overt violence that attach to the refusal to submit. Nevertheless, Hume’s paradox is real. Even, the despotic rule is commonly founded on a measure of consent, and the abdication of rights is the hallmark of more free societies.
In the contemporary period, Hume’s insight has been revived and elaborated but with a crucial innovation: control of thought is not important for governance that is free and popular than for despotic and military states. The logic is straight forward. Despotic states can control its domestic enemy by force, but as the state loses this weapon, other devices are required to prevent the ignorant masses from interfering with public affairs, which are none of their business. These prominent features of modern political and intellectual culture merit a closer look.
The problem of “putting the public in its place” came to the fore with what one historian calls “first great outburst of Democratic thought in history”, the English Revolution in the 17th century. This awakening of the general populace raises the problem of how to contain the threat. The Radical Democrats fought for the Freedom of Opinion and Expression, and Liberty of the people. But according to 17th century political- thinker, this would lead to ignorant persons neither of Learning and Fortune, being put in Authority. Given the Freedom, the “self- opinionated multitude” based on their interpretation would elect the “lowest of the People” taking on a road to chaos, mischief, Anarchy and confusion.
Hence, the Government’s don’t provide the Right to Freedom of Opinion and Expression as an absolute right. The smart way to keep people passive and obedient is to strictly limit the spectrum of acceptable opinion, but allow very lively debate within that spectrum.[9] The general public does not know what’s happening and it doesn’t even know that it doesn’t know as dissent lies in the hands of those in power. Chomsky believes that this act curbs Democracy.[10]
VIII. Conclusion
We witness how Dworkin’s Theory of Interpretation is obstructed by the Power of the elite in reality. By not providing a mechanism of achieving so it leads to more chaotic anarchy than a society with human responsibility because a human being is highly self- centred. With the interference of power, there is all the more suppression of this dissent and the freedom of interpretation is lost. It is essential to bring out a mechanism of how to implement the interpretative jurisprudence in a world prospectively turning dystopic.
[1] WAYNE MORRISON, JURISPRUDENCE: FROM THE GREEKS TO POSTMODERNISM (Cavendish Publishing Limited, 2000)
[2] RICHARD RORTY, PHILOSOPHY AND THE MIRROR OF NATURE (Princeton University Press, 1979)
[3] Supra Note 1
[4] RONALD DWORKIN, LAW’S EMPIRE (Harvard University Press, 1986)
[5] Supra Note 1
[6] NOAM CHOMSKY, DETERRING DEMOCRACY (Verso Books, 1991)
[7] NOAM CHOMSKY, INTELLECTUALS AND THE STATE (1978)
[8] EDMUND S MORGAN, INVENTING THE PEOPLE (1988)
[9] NOAM CHOMSKY, THE COMMON GOOD (1998)
[10] Supra Note 6