Dworkin’s Constructive Interpretation as a Method of Legal Research.

Abstract

Legal-dogmatic research conducted by legal scholars seems to have decreased in popularity in recent years (Vranken 2014, p. 5). It is said that more attention should instead be paid to interdisciplinary or multidisciplinary aspects, thus allowing other fields of expertise, such as sociology or psychology, to play an important role in legal research. Consequently, an ‘old-fashioned’ legal-dogmatic research that does not involve other disciplines or even a legal comparison may be considered irrelevant in a journal about legal research methodologies. However, traditional legal research can show similarities to Dworkin’s theory of constructive interpretation that, from a methodological point of view, are worth researching. Constructive interpretation is a process of imposing purpose on an object or practice in order to make of it the best possible example of the form or genre to which it is taken to belong (Dworkin 1986, p. 52). Dworkin developed his theory as a method to be used by a judge to determine the right interpretation of a rule in hard cases. This contribution aims to explore the opportunities for using constructive interpretation as a method of legal-dogmatic research and to ascertain whether it is possible to transfer Dworkin’s theory from a method of applying law for a judge to a method of researching law for a legal scholar. I will use the subject of my PhD research – multiple liability in criminal law – as an illustration because the set-up and (partly tentative) conclusions of this research serve to illustrate how Dworkin’s theory can be used as a research methodology. I will begin with a sketch of some key elements of Dworkin’s theory on constructive interpretation. I intend neither to give a full view of Dworkin’s theory nor to investigate in depth the discussions that have since arisen in legal philosophy. The purpose of outlining Dworkin’s theory here is to be able to use his ideas as the basis for conducting legal-dogmatic research. Therefore, I will deal with his theory and critical reflections only insofar as they are relevant to this contribution. As the Dutch legal scholar Scholten devised a method for interpreting Dutch private law that shows striking similarities to Dworkin’s theory on constructive interpretation, I will also mention his ideas, although my main source will be Dworkin. I will then discuss the main elements of my research to illustrate the opportunities for using Dworkin’s theory as a method of legal research. When applying this theory to my topic, I will examine certain difficulties that can arise. I will