LLOYD'S

INTRODUCTION TO
JURISPRUDENCE
NINTH EDITION

MICHAEL FREEMAN FBA

SWEET & MAXWELL

LLOYD’S INTRODUCTION
TO
JURISPRUDENCE
NINTH EDITION
by

M.D.A. FREEMAN, FBA

Emeritus Professor of English Law
University College London
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even though some of these will be controversial. But they will
not enter his calculations in such a way that different parts of the
theory he constructs can be attributed to his independent
convictions rather than to the body of law that he must justify.
He will not follow those classical theories of adjudication I
mentioned earlier, which suppose that a judge follows statutes or
precedent until the clear direction of these runs out, after which
he is free to strike out on his own. His theory is rather a theory
about what the statute or the precedent itself requires, and
though he will, of course, reflect his own intellectual and
philosophical convictions in making that judgment, that is a very
different matter from supposing that those convictions have
some independent force in his argument just because they are
his.
[pp.115–118]
R. DWORKIN
Law as Interpretation

(1982)154

7–011
In this essay I shall argue that legal practice is an exercise in
interpretation not only when lawyers interpret particular
documents of statutes, but generally. Law so conceived is deeply
and thoroughly political. Lawyers and judges cannot avoid
politics in the broad sense of political theory. But law is not a
matter of personal or partisan politics, and a critique of law that
does not understand this difference will provide poor
understanding and even poorer guidance. I propose that we can
improve our understanding of law by comparing legal
interpretation with interpretation in other fields of knowledge,
particularly literature. I also expect that law, when better
understood, will provide a better grasp of what interpretation is
in general.
Law

The central problem of analytical jurisprudence is this: What

sense should be given to propositions of law? By propositions I
mean the various statements lawyers make reporting what the
law is on some question or other. Propositions of law can be
very abstract and general, like the proposition that states of the
United States may not discriminate on racial grounds in
supplying basic services to citizens, or they can be relatively
concrete, like the proposition that someone who accepts a check
in the normal course of business without notice of any infirmities
in its title is entitled to collect against the maker, or very
concrete, like the proposition that Mrs X. is liable in damages to
Mr Y. in the amount of $1150 because he slipped on her icy
sidewalk and broke his hip. In each case a puzzle arises. What
are propositions of law really about? What in the world could
make them true of false?
The puzzle arises because propositions of law seem to be
descriptive—they are about how things are in the law, not about
how they should be—and yet it has proved extremely difficult to
say exactly what it is that they describe. Legal positivists believe
that propositions of law are indeed wholly descriptive; they are
in fact pieces of history. A proposition of law, in their view, is
true if some event of a designated law-making kind has taken
place, and otherwise not. This seems to work reasonably well in
very simple cases. If the Illinois Legislature enacts the words,
“No will shall be valid without three witnesses,” then the
proposition of law, that an Illinois will need three witnesses,
seems to be true only in virtue of that historical event.
But in more difficult cases the analysis fails. Consider the
proposition that a particular affirmative action scheme (not yet
tested in the courts) is constitutionally valid. If that is true, it
cannot be so just in virtue of the text of the Constitution and the
fact of prior court decisions, because reasonable lawyers who
know exactly what the Constitution says and what the courts
have done may yet disagree whether it is true. (I am doubtful
that the positivists’ analysis holds even in the simple case of the
will; but that is a different matter I shall not argue here).
What are the other possibilities? One is to suppose that
controversial propositions of law, like the affirmative action
statement, are not descriptive at all, but are rather expressions of
what the speakers wants the law to be. Another is more
ambitious: controversial statements are attempts to describe
some pure objective or natural law, which exists in virtue of
objective moral truth rather than historical decision. Both these
projects take some legal statements, at least, to be purely
evaluative as distinct from descriptive: they express either what
the speaker prefers—his personal politics—or what he believes
is objectively required by the principles of an ideal political
morality. Neither of these projects is plausible, because someone
who says that a particular untested affirmative action plan is
constitutional does mean to describe the law as it is rather than
as he wants it to be or thinks that, by the best moral theory, it
should be. He might, indeed, say that he regrets that the plan is
constitutional and thinks that according to the best moral theory,
it ought not to be.
There is a better alternative: propositions of law are not
simply descriptive of legal history in a straightforward way, nor
are they simply evaluative in some way divorced from legal
history. They are interpretive of legal history, which combines
elements of both description and evaluation but is different from
both. This suggestion will be congenial, at least at first blush, to
many lawyers and legal philosophers. They are used to saying
that law is a matter of interpretation; but only, perhaps, because
they understand interpretation in a certain way. When a statute
(or the Constitution) is unclear on some point, because some
crucial term is vague or because a sentence is ambiguous,
lawyers say that the statute must be interpreted, and they apply
what the call “techniques of statutory construction.” Most of the
literature assumes that interpretation of a particular document is
a matter of discovering what its authors (the legislators, or the
delegates to the Constitutional Convention) meant to say in
using the words they did. But lawyers recognize that on many
issues the author had no intention either way and that on others
his intention cannot be discovered. Some lawyers take a more
skeptical position. They say that whenever judges pretend they
are discovering the intention behind some piece of legislation,
this is simply a smoke screen behind which the judges impose
their own view of what the statute should have been.
Interpretation as a technique of legal analysis is less familiar
in the case of the common law, but not unfamiliar. Suppose the
Supreme Court of Illinois decided, several years ago, that a
negligent driver who ran down a child was liable for the
emotional damage suffered by the child’s mother, who was
standing next to the child on the road. Now an aunt sues another
careless driver for emotional damage suffered when she heard,
on the telephone many miles from the accident, that her niece
had been hit. Does the aunt have a right to recover for that
damage? Lawyers often say that this is a matter of interpreting
the earlier decision correctly. Does the legal theory on which the
earlier judge actually relied, in making his decision about the
mother on the road, cover the aunt on the telephone? Once again
skeptics point out that it is unlikely that the earlier judge had in
mind any theory sufficiently developed so as to decide the aunt’s
case either way, so that a judge “interpreting” the earlier
decision is actually making new law in the way he or she thinks
best.
The idea of interpretation cannot serve as a general account of
the nature of truth of propositions of law, however, unless it is
cut loose from these associations with the speaker’s meaning or
intention. Otherwise it becomes simply one version of the
positivist’s thesis that propositions of law describe decisions
made by people or institutions in the past. If interpretation is to
form the basis of a different and more plausible theory about
propositions of law, then we must develop a more inclusive
account of what interpretation is. But that means that lawyers
must not treat legal interpretation as an activity sui generis. We
must study interpretation as a general activity, as a mode of
knowledge, by attending to other contexts of that activity.
Lawyers would do well to study literary and other forms of
artistic interpretation. That might seem bad advice (choosing the
fire over the frying pan) because critics themselves are
thoroughly divided about what literary interpretation is, and the
situation is hardly better in the other arts. But that is exactly why
lawyers should study these debates. Not all of the battles within
literary criticism are edifying or even comprehensible, but many
more theories of interpretation have been defended in literature
than in law, and these include theories that challenge the flat
distinction between description and evaluation that has enfeebled
legal theory.
[pp.527–30]
III. Law and Literature

A. The Chain of Law

These sketchy remarks about literary interpretation may have

suggested too sharp a split between the role of the artist in
creating a work of art and that of the critic in interpreting it later.
The artist can create nothing without interpreting as he creates;
since he intends to produce art, he must have at least a tacit
theory of why what he produces is art and why it is a better work
of art through this stroke of the pen or the brush or the chisel
rather than that. The critic, for his part, creates as he interprets;
for though he is bound by the fact of the work, defined in the
more formal and academic parts of his theory of art, his more
practical artistic sense is engaged by his responsibility to decide
which way of seeing or reading or understanding that work
shows it as better art. Nevertheless there is a difference between
interpreting while creating and creating while interpreting, and
therefore a recognizable difference between the artist and the
critic.
I want to use literary interpretation as a model for the central
method of legal analysis, and I therefore need to show how even
this distinction between artist and critic might be eroded in
certain circumstances. Suppose that a group of novelists is
engaged for a particular project and that they draw lots to
determine the order of play. The lowest number writes the
opening chapter of a novel which he or she then sends to the
next number who adds a chapter, with the understanding that he
is adding a chapter to that novel rather than beginning a new
one, and then sends the two chapters to the next number, and so
on. Now every novelist but the first has the dual responsibilities
of interpreting and creating, because each must read all that has
gone before in order to establish, in the interpretivist sense, what
the novel so far created is. He or she must decide what the
characters are “really” like; what motives in fact guide them;
what the point or theme of the developing novel is; how far some
literary devide or figure, consciously or unconsciously used,
contributes to these, and whether it should be extended or
refined or trimmed or dropped in order to send the novel further
in one direction rather than another. This must be interpretation
in a non-intention-bound style because, at least for all novelists
after the second, there is no single author whose intentions any
interpreter can, by the rules of the project, regard as decisive.
Some novels have in fact been written in his way (including
the soft-core pornographic novel Naked Came the Stranger155),
though for a debunking purpose, and certain parlor games for
rainy weekends in English country houses have something of the
same structure. But in my imaginary exercise the novelists are
expected to take their responsibilities seriously and to recognize
the duty to create, so far as they can, a single, unified novel
rather than, for example, a series of independent short stories
with characters bearing the same names. Perhaps this is an
impossible assignment; perhaps the project is doomed to produce
not simply a bad novel but no novel at all, because the best
theory of art requires a single creator or, if more than one, that
each have some control over the whole. (But what about legends
and jokes?) I need not push that question further because I am
interested only in the fact that the assignment makes sense, that
each of the novelists in the chain can have some idea of what he
or she is asked to do, whatever misgivings each might have
about the value or character of what will then be produced.
Deciding hard cases at law is rather like this strange literary
exercise. The similarity is most evident when judges consider
and decide “common-law” cases; that is, when no statute figures
centrally in the legal issue, and the argument turns on which
rules or principles of law “underlie” the related decisions of
other judges in the past. Each judge is then like a novelist in the
chain. He or she must read through what other judges in the past
have written not simply to discover what that judges have said,
or their state of mind when they said it, but to reach an opinion
about what these judges have collectively done, in the way that
each of our novelists formed an opinion about the collective
novel so far written. Any judge forced to decide a law suit will
find, if he looks in the appropriate books, records of many
arguably similar cases decided over decades or even centuries
past by many other judges of different styles and judicial and
political philosophies, in periods of different orthodoxies of
procedure and judicial convention. Each judge must regard
himself, in deciding the new case before him, as a partner in a
complex chain enterprise of which these innumerable decisions,
structures, conventions, and practices are the history; it is his job
to continue that history into the future through what he does on
the day. He must interpret what has gone before because he has a
responsibility to advance the enterprise in hand rather than strike
out in some new direction of his own. So he must determine,
according to his own judgment, what the earlier decisions come
to, what the point or theme of the practice so far, taken as a
whole, really is.
The judge in the hypothetical case … about an aunt’s
emotional shock, must decide what the theme is, not only of the
particular precedent of the mother in the road, but of accident
cases, including that precedent, as a whole. He might be forced
to choose, for example, between these two theories about the
“meaning” of the chain of decisions. According to the first,
negligent drivers are responsible to those whom their behaviour
is likely to cause physical harm, but they are responsible to the
people for whatever injury—physical or emotional—they in fact
cause. It this is the correct principle, then the decisive difference
between that case and the aunt’s case is just that the aunt was not
within the physical risk, and therefore she cannot recover. On the
second theory, however, negligent drivers are responsible for
any damage they can reasonably be expected to foresee if they
think about their behaviour in advance. If that is the right
principle, then the aunt may yet recover. Everything turns on
whether it is sufficiently foreseeable that a child will have
relatives, beyond his or her immediate parents, who may suffer
emotional shock when they learn of the child’s injury. The injury
trying the aunt’s case must decide which of these two principles
represents the better “reading” of the chain of decisions he must
continue.
Can we say, in some general way, what those who disagree
about the best interpretation of legal precedent are disagreeing
about? I said that a literary interpretation aims to show how the
work in question can be seen as the most valuable work of art,
and so must attend to formal features of identity, coherence, and
integrity as well as more substantive considerations of artistic
value. A plausible interpretation of legal practice must also, in a
parallel way, satisfy a test with two dimensions: it must both fit
that practice and show its point or value. But point or value here
cannot mean artistic value because law, unlike literature, is not
an artistic enterprise. Law is a political enterprise, whose general
point, if it has one, lies in coordinating social and individual
effort, or resolving social and individual disputes, or securing
justice between citizens and between them and their government,
or some combination of these. (This characterization is itself an
interpretation, of course, but allowable now because relatively
neutral). So an interpretation of any body or division of law, like
the law of accidents, must show the value of that body of law in
political terms by demonstrating the best principle or policy it
can be taken to serve.
We know from the parallel argument in literature that this
general description of interpretation in law is not license for each
judge to find in doctrinal history whatever he thinks should have
been there. The same distinction holds between interpretation
and ideal. A judge’s duty is to interpret the legal history he finds,
not to invent a better history. The dimension of fit will provide
some boundaries. There is, of course, no algorithm for deciding
whether a particular interpretation sufficiently fits that history
not to be ruled out. When a statute or constitution or other legal
document is part of the doctrinal history, the speaker’s meaning
will play a role. But the choice of which of several crucially
different senses of speaker’s or legislator’s intention is the
appropriate one cannot itself be referred to anyone’s intention
but must be decided by whoever must make the decision, as a
question of political theory156 in the common-law cases the
question of fit is more complex. Any particular hypothesis about
the point of a string of decisions (“These decisions establish the
principle that no one can recover for emotional damage who did
not lie within the area of physical danger himself.”) is likely to
encounter, if not flat counter-examples in some earlier case, at
least language or argument that seems to suggest the contrary.
So any useful conception of interpretation must contain a
doctrine of mistake—as must any novelist’s theory of
interpretation for the chain novel. Sometimes a legal argument
will explicitly recognize such mistakes: “Insofar as the cases of
A v. B and C v. D may have held to the contrary, they were, we
believe, wrongly decided and need not be followed here.”
Sometimes the doctrine of precedent forbids this crude approach
and requires something like: “We held, in E v. F, that such-and-
such, but that case raised special issues and must, we think, be
confined to its own facts” (which is not quote so disingenuous as
it might seem).
This flexibility may seem to erode the difference on which I
insist, between interpretation and a fresh, clean-slate decision
about what the law ought to be. But there is nevertheless this
overriding constraint. Any judge’s sense of the point or function
of law, on which every aspect of his approach to interpretation
will depend, will include or imply some conception of the
integrity and coherence of law as an institution, and this
conception will both tutor and constrain his working theory of fit
—that is, his convictions about how much of the prior law an
interpretation must fit, and which of it, and how. (The parallel
with literary interpretation holds here as well).
It should be apparent, however, that any particular judge’s
theory of fit will often fail to produce a unique interpretation.
(The distinction between hard and easy cases at law is perhaps
just the distinction between cases in which they do and do not.)
Just as two readings of a poem may each find sufficient support
in the text to show its unity and coherence, so two principles
may each find enough support in the various decisions of the
past to satisfy any plausible theory of fit. In that case substantive
political theory (like substantive considerations of artistic merit)
will play a decisive role. Put bluntly, the interpretation of
accident law, that a careless driver is liable to those whose
damage is both substantial and foreseeable, is probably a better
interpretation, if it is, only because it states a sounder principle
of justice than any principle that distinguishes between physical
and emotional damage or that makes recovery for emotional
damage depend on whether the plaintiff was in danger of
physical damage. (I should add that this issue, as an issue of
political morality, is in fact very complex, and many
distinguished judges and lawyers have taken each side.)
We might summarize these points this way. Judges develop a
particular approach to legal interpretation by forming and
refining a political theory sensitive to those issues on which
interpretation in particular cases will depend; they call this their
legal philosophy. It will include both structural features,
elaborating the general requirement that an interpretation must
fit doctrinal history, and substantive claims about social goals
and principles of justice. Any judge’s opinion about the best
interpretation will therefore be the consequence of beliefs other
judges need not share. If a judge believes that the dominant
purpose of a legal system, the main goal it ought to serve, is
economic, then he will see in past accident decisions some
strategy for reducing the economic costs of accidents overall.
Other judges, who find any such picture of the law’s function
distasteful, will discover no such strategy in history but only,
perhaps, an attempt to reinforce conventional morality of fault
and responsibility. If we insist on a high order of neutrality in
our description of legal interpretation, therefore, we cannot make
our description of the nature of legal interpretation much more
concrete than I have.
B. Author’s Intention in Law

I want instead to consider various objections that might be made

not to the detail of my argument but to the main thesis, that
interpretation in law is essentially political. I shall not spend
further time on the general objection already noted: that this
view of law makes it irreducibly and irredeemably subjective,
just a matter of what particular judges think best or what they
had for breakfast. Of course, for some lawyers and legal scholars
this is not an objection at all, but only the beginnings of sceptical
wisdom about law. But it is the nerve of my argument that the
flat distinction between description and evaluation on which this
skepticism relies—the distinction between finding the law just
“there” in history and making it up wholesale—is misplaced
here because interpretation is something different from both…
There is no obvious reason in the account I gave of legal
interpretation to doubt that one interpretation of law can be
better than another and that one can be best of all. Whether this
is so depends on general issues of philosophy not peculiar to law
any more than to literature; and we would do well, in
considering these general issues, not to begin with any fixed
ideas about the necessary and sufficient conditions of objectivity
(for example, that no theory of law can be sound unless it is
demonstrably sound, unless it would wring assent from a stone).
In the meantime we can sensibly aim to develop various levels
of a conception of law for ourselves, to find the interpretation of
a complex and dramatically important practice which seems to
us at once the right kind of interpretation for law and right as
that kind of interpretation.
I shall consider one further, and rather different, objection in
more detail: that my political hypothesis about legal
interpretation, like the aesthetic hypothesis about artistic
interpretation, fails to give an adequate place to author’s
intention. If fails to see that interpretation in law is simply a
matter of discovering what various actors in the legal process—
constitutional delegates, members of Congress and state
legislatures, judges, and executive officials—intended. Once
again it is important to see what is at stake here. The political
hypothesis makes room for the author’s intention argument as a
conception of interpretation, a conception which claims that the
best political theory gives the intentions of legislators and past
judges a decisive role in interpretation. Seen this way, the
author’s intention theory does not challenge the political
hypothesis but contests for its authority. If the present objection
is really an objection to the argument so far, therefore, its claim
must be understood differently, as proposing, for example, that
the very “meaning” of interpretation in law requires that only
these officials’ intentions should count or that at least there is a
firm consensus among lawyers to that effect. Both of these
claims are as silly as the parallel claims about the idea or the
practice of interpretation in art.
Suppose, therefore, that we do take the author’s intention
theory, more sensibly, as a conception rather than an explication
of the concept of legal interpretation. The theory seems on
firmest ground, as I suggested earlier, when interpretation is
interpretation of a canonical legal text, like a clause of the
Constitution, or a section of a statute, or a provision of a contract
or will. But just as we noticed that novelist’s intention is
complex and structured in ways that embarrass any simple
author’s intention theory in literature, we must now notice that a
legislator’s intention is complex in similar ways. Suppose a
delegate to a constitutional convention votes for a clause
guaranteeing equality of treatment without regard to race in
matters touching people’s fundamental interests; but he thinks
that education is not a matter of fundamental interest and so does
not believe that the clause makes racially segregated schools
unconstitutional. We may sensibly distinguish an abstract and a
concrete intention here: the delegate intends to prohibit
discrimination in whatever in fact is of fundamental interest and
also intends not to prohibit segregated schools. There are not
isolated, discrete intentions; our descriptions, we might say,
describe the same intention in different ways. But it matters very
much which description a theory of legislative intention accepts
as canonical. If we accept the first description, then a judge who
wishes to follow the delegate’s intentions, but who believes that
education is a matter of fundamental interest, will hold
segregation unconstitutional. If we accept the second, he will
not. The choice between the two descriptions cannot be made by
any further reflection about what an intention really is. It must be
made by deciding that one rather than the other description is
more appropriate in virtue of the best theory of representative
democracy or on some other openly political ground. (I might
add that no compelling argument has yet been produced, so far
as I am aware, in favor in deferring to a delegate’s more concrete
intentions, and that this is of major importance in arguments
about whether the “original intention” of the Framers requires,
for example, abolishing racial discrimination, or capital
punishment.)
When we consider the common-law problems of
interpretation, the author’s intention theory shows in an even
poorer light. The problems are not simply evidentiary. Perhaps
we can discover what was “in the mind” of all the judges who
decided cases about accidents at one time or another in our legal
history. We might also discover (or speculate) about the
psychodynamic or economic or social explanations of why each
judge thought what he or she did. No doubt the result of all this
research (or speculation) would be a mass of psychological data
essentially different for each of the past judges included in the
study, and order could be brought into the mass, if at all, only
through statistical summaries about which proportion of judges
in which historical period probably held which opinion and was
more or less subject to which influence. But this mass, even
tamed by statistical summary, would be of no more help to the
judge trying to answer the question of what the prior decisions,
taken as a whole, really come to than the parallel information
would be to one of our chain novelists trying to decide what
novel the novelists earlier in the chain had collectively written.
That judgment, in each case, requires a fresh exercise of
interpretation which is neither brute historical research nor a
clean-slate expression of how things ideally ought to be.
A judge who believed in the importance of discerning an
author’s intention might try to escape these problems by
selecting one particular judge or a small group of judges in the
past (say, the judges who decided the most recent case
something like his or the case he thinks closest to his) and asking
what rule that judge or group intended to lay down for the future.
This would treat the particular earlier judges as legislators and so
invite all the problems of statutory interpretation including the
very serious problem we just noticed. Even so, it would not even
escape the special problems of common-law adjudication after
all, because the judge who applied this theory of interpretation
would have to suppose himself entitled to look only to the
intentions of the particular earlier judge or judges he had
selected, and he could not suppose this unless he thought that it
was the upshot of judicial practice as a whole (and not just the
intentions of some other selected earlier judge) that this is what
judges in his position should do.
IV. Politics in Interpretation

If my claims about the role of politics in legal interpretation are

sound, then we should expect to find distinctly liberal or radical
or conservative opinions not only about what the Constitution
and laws of our nation should be but also about what they are.
And this is exactly what we do find. Interpretation of the equal
protection clause of the Constitution provides especially vivid
examples. There can be no useful interpretation of what that
clause means independent of some theory about what political
equality is and how far equality is required by justice, and the
history of the last half-century of constitutional law is largely an
exploration of exactly these issues of political morality.
Conservative lawyers argued steadily (though not consistently)
in favor of an author’s intentions style of interpreting this clause,
and they accused others, who used a different style with more
egalitarian results, of inventing rather than interpreting law. But
this was bluster meant to hide the role their own political
convictions played in their choice of interpretive style, and the
great legal debates over the equal protection clause would have
been more illuminating if it had been more widely recognized
that reliance on political theory is not a corruption of
interpretation but part of what interpretation means.
[pp.540–549]
R. DWORKIN
Law’s Empire

(1986)