Delimiting Legal Interpretation: The Problem of Moral Bias and Political Distortion—the Case of Criminal Intention

Abstract

AbstractThis essay criticizes Dworkin’s and Greenberg’s interpretivism using one concrete example, namely, the interpretation of rules of criminal law pertaining to intentionality ascriptions. In fact, according to interpretivism, some judicial interpretations of criminal intention can be explained as practices that depart from legislatively communicated content to implement moral principles. We distinguish between a Kantian and a consequentialist approach to criminal intention and claim that judicial practice can be viewed as an implementation of the consequentialist approach which pulls apart the Kantian criteria communicated by the legislator. However, we argue that, in doing so, judges open the door to folk biases, political pressures, and stereotypes that produce distorted and unfair results. To deal with this objection, interpretivism would have to both claim that judicial practice is erroneous and provide a theory of objective moral truth, yet it fails in both respects.