Formalism and Instrumentalism in Dworkin’s Interpretation

of Statutes

Presentation by André Coelho

International Colloquium “Dialogues with Frederick Schauer”

Belo Horizonte – Sep 2, 2016

 Introduction

Brazilian legal philosophy suffers from what I like to call “big

theory fixation”. Issues of normative jurisprudence, like how to
interpret statutes, are almost exclusively debated not from the point
of view of the several authors that gave this problem their best
thought, but rather from the point of view of a few big theories of
analytical jurisprudence, like Kelsen’s, Hart’s, Alexy’s or
Dworkin’s. As a result, the discussions are usually committed to
theories where the issue is treated briefly and isn’t but an
application of the author’s general view on law to a particular
subject. That’s why a debate as important as the one between
formalism and instrumentalism has little to no highlight in most
Brazilian discussions of statutory interpretation. If this scenario is
to be changed anytime soon, there’s no other way than showing the
limits of big theories’ treatments of those issues when compared to
the richness and depths of more topic contributions. Here I try to
help advance this cause by underlining one line of limitation of
Dworkin’s model of statutory interpretation when put in contrast
with the debate between formalism and instrumentalism.

A Brief Summary of Dworkin’s Model

Dworkin’s approach to statutory interpretation is best presented on

Ch. 9 of Law’s Empire. This chapter is comprised of two halves. In
the first, Dworkin argues that Hermes’ search for legislative
intention, if duly revised, overlaps with Hercules’ constructive
interpretation in light of principles and policies. In the second half,
Dworkin proposes his model of statutory interpretation, making
clear the points where it differs from the other applications of Law
as Integrity and how Hercules would use it to decide one hard case
on statutory law, namely the Snail Darter case.

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Dworkin proposes a model of constructive interpretation of past
decisions in the light of principles. Facing a case to be decided, an
interpreter must collect the decisions of the past relevant for the
present case, formulate hypothetical principles aimed at explaining
and justifying such decisions, select the principle that best meets
the requirements of fit and appeal, and then apply the selected
principle to deciding the case at issue. The requirement of fit is
there to rule out the principles incapable of explaining most of the
decisions of the past, while the requirement of appeal is there to
select the most morally appealing from the remaining candidates.

In Ch. 9 of Law’s Empire, however, Dworkin targets statutory

interpretation in particular. When applied to statutes, Dworkin’s
general model of constructive interpretation is characterized by
three main differences. Concerning the requirement of fit, the exact
phrasing of the statute becomes relevant and declarations of the
law-makers during the legislative process join the set of decisions
to be taken into account. Concerning the requirement of appeal,
principles that reveal themselves to be policies, that is, goals of the
political community, are also acceptable, as long as they qualify as
supported by the law-makers, and not by the law-enforcers.

In reality, all three of these differences are due to the rise of a

political virtue of the community of principles other than integrity,
which is equity. In Dworkin, equity is the respect for decisions of
legitimate majorities or representatives. As a product of legislation,
a statute is precisely one of such decisions. Therefore, equity
requires a different attitude of the judge to this particular type of
past decision. That’s why the exact words used matter. The official
pronouncements during legislation matter. The policies aimed at
matter. The respect for everything the law-makers said and pursued
is Dworkin’s expression of respect for democracy itself.

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Let me explain in greater detail each of the three differences. First
of all, as said above, text – in the sense of the exact words used by
the law-makers – becomes much more relevant. Although Dworkin
doesn’t give an explicit explanation as to why, one can reasonably
speculate that he sees the choice of words as a political choice, in
the sense that some of the cases potentially covered by the statute’s
rules were already foreseen by the law-makers and subsequently
targeted or untargeted on purpose. Even the smallest terms like
“and”, “or”, “if”, “only” etc. can be seen as revealing of intention
or prevention. Interpretation gets limited to and by the text.

Secondly, the declarations of the law-makers during the legislative

process are taken seriously. At first, legislative declarations are not
institutional decisions, but attempts at influencing the making of
such decisions. However, in statutory interpretation Dworkin
incorporates them to the bulk of institutional decisions expected to
be explained and justified by the concurring principles. It’s unclear
whether Dworkin sees the incorporation of legislative declarations
as a mandatory requirement of equity or as an accommodation of
Law as Integrity to an American common legal practice. Either
way, they are treated as virtual parts of the interpreting statute.

Lastly, the policies whose implementation was aimed by the law-

makers are acceptable candidates to become the deciding principle.
As widely known, Dworkin distinguishes principles stricto sensu,
that are requirements of justice, from policies, that are goals of the
community, being rather emphatic on how judges are not allowed
to make decisions based on arguments of policy. But in statutory
interpretation policies are admissible, as long as they are taken into
account and employed because they were supported by the law-
makers, not by the law-enforcers. Judges remain unauthorized to

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favor the policies they like, but should, in respect for equity,
enforce the policies the statutes were designed to pursue.

By showing Hercules dealing with the Snail Darter case, Dworkin

illustrates how these differences are relevant in practice and could
direct his imaginary judge to a certain course of decision-making.
Two issues were to be answered: (1) Whether the Endangered
Species Act allowed for the Secretary of the Interior to order the
construction of an expensive river dam to be interrupted in its final
stages; and (2) Whether the Endangered Species Act allowed for
such order of the Secretary of the Interior to be issued in order to
protect the habitat of a species that, although endangered, was
fairly irrelevant from an ecological or cultural point of view.

Four were the hypotheses: (A) The order could be issued at any
stage and to protect any endangered species; (B) only at an early
stage but to protect any species; (C) at any stage, but only to
protect a relevant species; and (D) only at an early stage and only
to protect a relevant species. The language of the statute was too
open, enabling any of the hypotheses to fit the text. However, once
the legislative declarations were incorporated, the law-makers’
concern against giving too much power to the Secretary of the
Interior and their caring only for the most relevant species made it
easy for Hercules to go with the last of the four hypotheses.

From the point of view of equity, Hercules’ decision-making is

explained as follows: his respect for the Endangered Species Act as
decision of a legitimate majority made him ignore the policies he
thought more sensible and subscribe to those favored by the law-
makers as representatives of the citizens in general. The statute’s
text and the legislative declarations indicated that such policies
would restrict both the Secretary of the Interior’s power and the
range of the protected species. Implementing the statute according

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to its pursued policies, Hercules had no choice but revoking the
Secretary’s order and allowing the dam to be finished.

Dworkin and the statutory interpretation debate

Now imagine a reader of Dworkin interested in what his views can

impart to the larger debate on statutory interpretation. He or she
isn’t worried with how Dworkin’s interpretivism is applied to this
subject, nor does he or she assess the value of his proposal by how
well it fits into his system as a whole. He or she doesn’t see the
reliance of his ideas about statutory interpretation on other ideas of
his, like constructive interpretation, principles and policies, the
limits of judicial power etc. as an advantage, but rather as an extra
burden and a handicap. His or her only interest is what Dworkin
adds to an already existing and advanced debate.

A preliminary objection a Dworkinian advocate could make is that

the reader of my example is a poor legal philosopher, unaware of
the inevitable connections among legal philosophical issues and
their general dependence on a theory of law as a whole. That the
project of focusing on one particular debate in legal philosophy,
expecting that interesting or definitive answers will eventually rise
from it is naive and doomed to failure. That this, referring to
Berlin’s famous metaphor, is the fox’s idea of legal philosophy,
and foxes are either wrong or not the target audience of Dworkin’s
ideas. For Dworkin writes primarily for hedgehogs.

Although I think this objection is mistaken in more than one sense,

I don’t take this chance to defend the point of view of the fox.
Instead, I insist on a much humbler idea: that, even if you believe
in the hedgehog’s conception of philosophy, there’s still value in
knowing whether or not the intervention of a certain general theory
of law in an applied topic improves the debate of that topic
considered in isolation. Some theories of statutory interpretation

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are considered pertinent and convincing independently of their
author’s general theory of law. Knowing whether or not Dworkin’s
model is one of these contributions is not void of interest.

Back to the reader interested in statutory interpretation per se. In

my version of this little experiment, the frame of reference of that
reader is the dispute between formalism and instrumentalism.

As both terms have many meanings, here is how my hypothetical

reader thinks of them. As theories on statutory interpretation,
formalism is the view that a statute is or should be interpreted
solely on the basis of its text, while instrumentalism defends that it
is or should be interpreted taking non-textual issues into account,
especially the ends the legislator or the interpreter finds worth
pursuing. The variation between “is” and “should be” distinguishes
between descriptive and normative versions of both theories. In the
end, formalism is a text-centered approach, and instrumentalism an
end-oriented approach to statutory interpretation.

Now given this reference framework, here is how this reader

interprets Dworkin’s proposal. First, he or she finds elements of
both formalism and instrumentalism in Dworkin’s model. His
formalism shows in his valuing of the text as limit to the judge’s
interpretation. On the other hand, his instrumentalism shows in his
incorporation of legislative declarations as institutional decisions
and his use of principles and policies to interpret the meaning of
both the statute and the declarations of its makers. But the reader is
sure to classify Dworkin as an instrumentalist, even if his is a
doubly restricted instrumentalism: can’t go beyond the text and
can’t use the interpreter’s favorite ends.

As for the arguments Dworkin provides, they sound to the reader

as less developed and convincing versions of traditional arguments
in the debate. For example, the text is to be a limit because equity

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requires the judge to submit its application of the statute to the
choices of the representatives of legitimate majorities. This is just a
more twisted and complicated version of the old argument from
democracy. And it doesn’t respond to any of the difficulties and
objections normally raised against such argument. What if the text
has a typo? What if the text is poorly written or otherwise inept to
communicate? What if the legislative power is illegitimate or fails
to represent the majority? What if the only reasonable or
acceptable interpretation of the statute violates its textual limits?
Dworkin has no answers to these questions, which automatically
puts his theory some steps below those that actually do.

And why should ends be used? Why policies too, not only rights?
Why the policies of the law-maker, and not the interpreter’s? Why
only those that fit the text and the legislative declarations, and not
also the ones empirically, instrumentally or valoratively connected
to the former or the ones easily inferable from the original context?
Dworkin’s take is that the legislative power is legitimate and
expected to set goals, to use its right and power to speak for
everyone and determine the community’s priorities. That, by its
turn, depends on the idea that the legislative represents all groups,
views and values of the community and that the setting of goals is
legitimate whenever such goals are supported by the majority of
the community’s individuals.

But what if the interpretation of a statute requires that one of two

ends is preferred but both the text and the legislative declarations
don’t give signs to one direction or the other? Or give signs to
both? Can the judge choose according to his or her preference? Is
there some objective way to determine that one end is more
important or urgent than the other? What if the legislative
declarations are many and contradictory to each other, so that no

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principle or policy can explain all of them? What if the ends that
do match with the legislative declarations are unwise, ill-advised,
hurtful or detrimental to the majority of individuals or to at least
one of the community’s well-known groups? Should these ends
still have preference over the interpreter’s? If so, why?

And what if a society is deeply divided both in matters of values

and interests, so that every decision to one side or the other is
expected to represent, at most, a slight margin of advantage of one
of these sides? What if the electoral chances are far from equal, the
legislative represents mostly one of the dividing groups and has a
major representation deficit concerning the other one? What if
there are certain minority groups that, although protected when the
issue involves rights, is systematically disregarded and exploited
when it involves interests and goals? What if the interpreter is in a
better position to realize these distortions and inequalities and to
revert them to a certain degree by means of his or her
reinterpretation of the questionable statutes that the parliamentary
majority made? Again, it’s not just that Dworkin’s theory doesn’t
address these particular scenarios and possibilities (many of which
are easily found in the very case of the US politics), but it makes
highly controversial claims about democracy as a whole and
assumptions about how a political community is structured and
supposed to work. There’s no backing for them other than the
author’s political idealizations.

Now of course all I said about the insufficiency of Dworkin’s

theory can and probably will be faced with two kinds of criticism.
One is that I misunderstood Dworkin’s theory altogether or at least
some parts of it, and then the critic will present me with his or her
alternative reading of the Ch. IX of Law’s Empire in general or of
Dworkin’s model of statutory interpretation in particular. The other

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is that some of the indicated conceptual, normative and empirical
shortcomings are dealt with properly and in more length and depth
in other works like Sovereign Virtue, Is Democracy Possible
Here?, Dworkin’s comments on Scalia and Posner or on some
Supreme Court cases, as well as in some passage or chapter of
Justice for Hedgehogs. Those criticisms might as well be fair. But
what the critic would still have failed to do is showing that
Dworkin paid due respect to an already existing and advanced
debate, with all its positions, arguments and challenges. Dworkin
could not make statutory interpretation his business because,
despite his interventions on the issues of his time and applications
to the practice of law, his business has always been general theory,
not applied philosophy. So the insufficiency of his theory of
statutory interpretation is nothing short of structurally inevitable.

For all of that, I think that Dworkin’s theory of statutory

interpretation would fail to capture the full attention of a reader
well informed about the applied literature on the issue and
interested in finding a theory capable of advancing more
convincing answers to the questions the debate has continuously
raised. Compared to more topic and applied theories, Dworkin’s
seems more schematic and underdeveloped, not to mention
unfounded and more concerned with its own internal coherence
than with the particularities and challenges of the issue itself.
Which, by the way, is hardly Dworkin’s fault. He was too busy
exposing different applications of his general theory of law. It is
much more fault of those that, whenever a more applied topic like
this emerges, ignore the rich and long-lasting literature on the issue
and go search for answers to the issue’s most difficult questions in
general theories of law, a very unlikely place to find them.

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