Criticising the Use of Original Intent in Judicial Decision Making: An Application of Dworkin and American Legal Realism

I. Introduction: The Intentionalist Position*

Richard Posner, noted that: “[A Judge], should try to think his way  as best he can into the minds of the enacting legislators and imagine how they  would have wanted the statute applied to the case at bar.”[1]This position advocates that a Judge must interpret statutes bearing in mind the intent of the legislature (intentionalists).[2] Cases like Pepper v. Hart[3] have adopted this position in their interpretation of statutes, however the question I am going to consider is this: Does interpretation really depend on legislative intent? Rather the more apt way of putting this is: Should interpretation really depend on legislative intent?

In considering the plain meaning of a statute, this is a question that has perturbed numerous judges. Does legislative intent matter? Is it a deciding factor in the decision making of any unbiased arbiter of the law? Over the course of this paper, I will reply to the intentionalist position by first using the work of Ronald Dworkin. Part II of this paper will explore Dworkin’s theory of interpretation. In this section, I will explore his arguments and justifications for disregarding legislative intent in certain cases. Dworkin states that legislative intent is not meant to be treated as all important for the purpose of statutory interpretation and I will argue that Dworkin was of the opinion that it is essential for us to embrace the subjectivity that vests with a judge by not binding them to the rigidity of original intent.

In part III of this paper, I will engage with the American Legal Realism movement and their position on legislative intent being used in judicial interpretation. I will use this section to highlight the position that is held by legal realists; namely John Dewey and Justice Homes. In aforementioned section, I will argue that the Realists defend the absence of legislative intent in adjudication by arguing that it is impossible for it to matter in decision making.

Finally I will conclude with my own analysis of the debates by applying the theoretical framework to the judicial debates on ‘what is law in the Indian context’? I will use the framework of the Indian cases to show how the Courts’ conception of intent is irrelevant to the adjudication of a case and thus I will attempt to use the cases to strengthen both the Dworkinian and Realist stance on adjudication.



II. Dworkin on Adjudication

In a lecture before the library of congress, Ronald Dworkin, in extension of his points made in his seminal book Laws Empire, argued that interpreting statutes is much the same as interpreting art or novels. The interpreter assumes the role of the critic.[4] Much like a chain novelist, Dworkin argued that a Judge must interpret statutes in light of community morality, and not just intent of the legislature, so that the best possible result is achieved to the extent that law and the principles that make up the law (i.e. morality) must fit the specific instance best: Particularly in light of the history of the practice.[5]

Therefore, in extension of this position, Dworkin in his lecture was of the opinion that many a time, the art of interpretation for the best fit will lead to the discovery of a moral principle or point that the author never even knew was part of his/her work.[6] Therefore, in many ways, Dworkin, was of the opinion that Judges, in their quest for the best possible result, often must consider realities within the text that were not known at the time of drafting it.

Here, it is prudent to note that Dworkin, clearly held that judges have a duty to uphold the integrity of the practice of law and come up with the best possible result.[7] Neil McCormick for instance believes, in extension to the Dworkinian position, that a judge had a deontological imperative to achieve the best possible result.[8] Therefore, to put this together, Dworkin, clearly believed, that there was some leeway given to judges to disregard the framers intent to help interpret the practice of law to achieve the best possible result for a particular period of time.

To conclude, Dworkin argued that a judge must first look at the text, intent and the histories of cases while interpreting a statute for a case.[9]However, he was also of the opinion that a judge can never actively enter the mind of the drafters and therefore, there was an element of subjectivity involved in adjudication and hence, a degree of leeway to disregard the framers intent in the hands of a judge.

In summary, Dworkin argued that legislative intent was only one component that was to be considered for the purpose of adjudication, and he did believe that it could be disregarded completely in certain scenarios.

III. The Realist Critique

Karl N. Llewellyn clearly noted that there was a need to go far beyond the framers intent of statute to ascertain its meaning.[10] Llewellyn makes his point by noting that the information present at a point in the future is different from the time of the drafting. Therefore, with this asymmetry in mind, it is critical that the interpretation changes in sync with the change in social experience from the time of the drafting to the time of the current case.[11]

Conversely, Llewellyn’s position is simply a predecessor to my argument. The realists have consistently argued that interpretation is not an activity that can be divorced from personal experience and subjectivity. In other words, the realists don’t believe that a judge can ever objectively look at a statute and construct it in light of original intent or the meaning of the text. Instead according to the realists, a judge often constructs statutes on the basis of personal experience. Therefore, according to realists, judges use the logical tool of syllogism[12] to make interpretations.[13]As per this theoretical approach, judgments are achieved by a logical deduction that flows from a pre-decided conclusion as opposed to coming to a conclusion, a priori, by consulting the required materials.[14]

Therefore, as mentioned by a classical realist, John Dewey, a judge often reaches conclusions first before justifying their conclusion using the material in front of them.[15] Justice Holmes, also a proponent of this theory of adjudication argued that experience was what tainted objectivity in adjudication.[16] Therefore, the realist position is that: The use of legislative intent is redundant due to the fact that using legislative intent would simply be used to justify a pre-determined end. On a second level, it is apparent from the realist position that American Realists are of the opinion that legislative intent is simply redundant as the experience of the drafters is vastly different from the experience of a judge, adjudicating in a different time.[17]

IV. An Application to the Debates on What is Law in India

The Indian experience of adjudication has evolved from the positivism of Gopalan[18] to the reinterpretation of political morality in the case of Meneka Gandhi[19]. At the heart of the interpretation of these cases was the question of: ‘What the word law that resided in Article 21 of the Indian Constitution meant’?[20]

The early interpretation in the case of Gopalan was that the word law was law enacted by the legislature. In other words, the Courts, using the context in which it was enacted, specifically the legislature mind-set in excluding the words ‘due process’ held that the term law meant positive law and therefore, held no connect to morality.[21]Therefore, the Court held that life and liberty could be taken away from a citizen by any law including a law that had no connection with socio-political morality. Throughout the aforementioned case, the Court went into the history and intent of the makers of the Constitution.

This case was however, overruled in the case of Maneka Gandhi. In Maneka Gandhi, the Court stated that the word law was interpreted to be any law that was just fair and reasonable. Therefore, in stark contrast to the position of the Court in the case of Gopalan, the Court held that only a law that was morally appropriate could deprive a person of life and liberty.

The question I consider in this section is: Whether the change in the interpretation of the word law is in sync with Dworkinian principles of adjudication or was it in sync with the theory of legal realists? Furthermore, what became of the legislatures intent that was so heavily relied on in Gopalan and was disregarding it justifiable?

A close analysis of the decision in Maneka and the political background of the case brings to light the fact, that the judges completely disregarded history and this went against decades of interpretation. I am inclined to believe that the Courts changed their interpretation to best suit a specific socio-political scenario, in which India was on the verge of dictatorship just prior to the decision. Hence, the Judges, clearly disregarded intent in favour of an interpretation that best suited the times. Hence, anyone siding with a Dworkinian notion of judicial interpretation would find little or no fault with the Courts decision in Maneka.

A second justification of the Courts change in interpretation is that of the realists. The change in the socio-political climate in the country also changed the personal experience of judges towards the question of what law means. Therefore, with the abhorrence towards positive law that was prevalent during the post Indira Gandhi phase, it is apparent that the judges could very well have used a syllogic train of thought to justify what they believed was a political imperative. Hence, once again, the disregard of legislative intent was not only justified but necessary to come to a legal decision.

V. Conclusion

Over the course of this paper, I have attempted to justify the disregard of legislative intent using two separate theories. The first being the theory of adjudication propagated by Ronald Dworkin and the second being the theory propagated by American Legal Realists.

While, the theories I used are vastly different, they seem to agree on the conclusion that there is more to interpretation than original intent. While, according to Dworkin, there was some room for looking at original intent while interpreting the Realist position simply renders it irrelevant. Hence, as I have demonstrated over the course of this paper, the founder’s intention being treated as all encompassing is in fact an incorrect way of looking at statutory interpretation.


Darshan Datar

Jindal Global Law School 2014

* I would like to thank Professor James Nedumpara for his valuable insights. They were instrumental in me being able to write this paper.

[1] Richard Posner, Statutory Interpretation-in the Classroom and in the Courtroom, 50 Univ. of Chic. L. Rev. 800 (1983) at 817.

[2]Torben Spark, Legal Positivism, Anti Realism and the Interpretation of Statutes, in Logic, Law, Morality: Thirteen Essays in Practical Philosophy in Honour of Lennard Aqvist (KristerSegerberg&RysiekSliwinski eds. 2003) at 131.

[3]Peper v. Hart, 1992 UKHL 3.

[4]Ronald Dworkin, Laws Empire (1986) at 227-229.


[6] The example noted by Dworkin in his lecture is that of a customs officer who finds something that the passenger never intended to put into his bag. Though, there was no intention on the part of the passenger, the passenger can’t deny the existence of the item. There is a tangible reality that exists with the presence of the item.

[7]Ronald Dworkin, supra note 4. See also Ronald Dworkin, Taking Rights Seriously (1978).

[8]Neil McCormick, Argumentation and Interpretation in Law, 16 Ratio Juris 16 (1993) at 25.

[9] James Donato, Dworkin and Subjectivity in Legal Interpretation, 40(6) Stanford. L. Rev 1517 (1988) at 1535.

[10] Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Cannons: About How Statutes are to be Constructed, 3 Vanderbilt L. Rev. 395.


[12]John Dewey, Logical Method and Law, 10Cornell L. Q.17 (1914). When I use the term syllogism I am referring to how generalizations and human experience seem to taint our understanding of things to the point where we reach conclusions prior to justifying them. Therefore, we rationalize conclusions post facto and not as a method of reaching the conclusion. The reasoning used is deductive and not constructive.

[13]See generallyM.D.A Freeman, Lloyds Introduction to Jurisprudence (8th ed. 2008) at 985-997.

[14] John Dewey, supra note 12.


[16]Oliver Wendel Homes, Path of Law, 10Harv. L. Rev.457 (1897); John Dewey, Id. The movement of American legal realism argued that experience governed to the adjudication of the cases. According to this movement, a judge essentially makes decisions on the basis of “what he[/she] eat for breakfast”.

[17] Llewellyn, supra note 10.

[18]A.K Gopalan v. State of Madras, AIR 1950 SC 27.

[19]Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

[20] The Article reads as: “No person shall be deprived of his(/her) life or liberty except according to a procedure established by law”.

[21]Gopalan, supra note 17.


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