Hermeneutic Perspectives On Judicial Activism: Dworkin, Constitutional Interpretation And Judicial Law-Making

• Author: Eoin Daly
• Position: BCL (Law and French), PhD candidate, Faculty of Law, UCC
• Pages: 16-27

HERMENEUTIC PERSPECTIVES ON JUDICIAL ACTIVISM:

DWORKIN, CONSTITUTIONAL INTERPRETATION AND

JUDICIAL LAW-MAKING

Eoin Daly*

It may be said of a Constitution, more than of any other legal

instrument, that while “the letter killeth, the spirit giveth life

- Henchy J in DPP v O’Shea1

… inverting a Christian axiom, Nietzsche offers the philological

aperçu that while the spirit kills, the letter gives life

- Goodrich, Nietzsche and Legal Theory2

A INTRODUCTION – INTERPRETATION AND THE PROBLEM OF

LINGUISTIC AMBIGUITY IN LAW

Since the words used by legal instruments may often be abstract, or

their meaning indeterminate when applied to various concrete circumstances,

the application of law requires an intervening act of interpretation, of which

the precise nature and significance is largely undefined and contested.3 This

consequence of such an (apparently obvious) axiom is that while a distinction

necessarily exists between the application of law and its creation, it is often

claimed that interpretation, in applying words of often indefinite meaning to

various situations, may amount to a creative act that judges in interpreting

law, in fact participate in its creation.4 The problem is stated by MacLean:

… the process of interpretation is not a humble one… rather than

being the servants of the text, interpreters threaten to become its

masters by devising and applying the rules by which sense is made

of it; indeed, they threaten to become its masters to the point of

laying down the law themselves.5

16

* BCL (Law and French), PhD candidate, Faculty of Law, UCC

1 [1982] IR 384.

2 P Goodrich and M Valverde (eds) Nietzsche and Legal Theory (Routledge London 2005)

196.

3 A Marmor Interpretation and Legal Theory (Clarendon Press Oxford 1994). Marmor

presumes that the various paradigmatic uses of law associated with interpretation are

‘intimately linked with the concept of meaning.’

4 ibid 124.

5 I MacLean ‘Responsibility and the Act of Interpretation’ in MacLean, Montefiore & Winch

(eds) The Political Responsibility of Intellectuals (Cambridge University Press Cambridge

1990) 161.