Interpretivism about law offers a philosophical explanation of howinstitutional practice—the legally significant actions andpractices of political institutions—modifies legal rights andobligations. Its core claim is that the way in which institutionalpractice affects the law is determined by certain principles thatexplain why the practice should have that role. Interpretation of thepractice purports to identify the principles in question and therebythe normative impact of the practice on citizens’ rights andresponsibilities.

Interpretivism is famously associated with Ronald Dworkin, whodeveloped the position in a number of publications spanning 45 years(see the works of Dworkin cited in the Bibliography). Dworkin’swritings have stimulated a great deal of debate (the following aresome examples from the vast secondary literature: Mitchell 1983; Cohen1984; Hart 1994 (Postscript); Raz 1972, 1986, 1994: Chapters 10 and13, 2001; Finnis 1992; Coleman 2001b; Brink 2001; Burley2004; Hershovitz2006a; Ripstein 2007; Shapiro 2007; Smith 2010; Gardner 2012; Greenberg 2014; Hershovitz 2015). In this entry, we shall focus on the explanationof the position that was developed and defended by Dworkin (though notnecessarily on his way of presenting or defending it).

• 1. The grounds of law
• 2. The orthodox view
• 3. Hybrid Interpretivism
• 4. Pure, nonhybrid interpretivism
• 5. Why does institutional practice matter?
• 6. Disagreement
• 7. Related Theories
• Bibliography
• Academic Tools
• Other Internet Resources
• Related Entries

1. The grounds of law

Interpretivism is a thesis about the fundamental or constitutiveexplanation of legal rights and obligations (powers, privileges, andrelated notions) or, for short, aboutthe grounds of law. Inthe relevant sense, some fact grounds another when the latter obtainsin virtue of the former; and the relation between the two facts isexplanatory in a non-causal, metaphysical sense of constitutivedetermination. (See Fine 2012 and other essays in Correia andSchnieder 2012). Consider the fact that, if you buy a mobile phone ata store in London and it turns out to be defective, you have a right,which is enforceable through the courts, to have it replaced orrepaired by the seller, provided the defect existed when the phone was delivered and became apparent not later than two years from delivery. In virtue of what does the right obtain? Whatmakes it the case, more abstractly, that any legal right or obligationobtains? What makes the proposition that some right or obligationexists true, if it is true? (Dworkin 1986; Stavropoulos 2017.) What sorts of nonlegalfacts do legal rights and obligations depend upon in this fundamentalway, and what is the character of the relation of dependence thatholds between legal rights and obligations and the nonlegal facts invirtue of which they obtain? What is the order in which the relevantfactors appear within the fundamental explanation?

Legal rights and obligations vary when certain institutional and other nonmoral social facts vary; and cannot vary as long as such facts remain the same. The class of relevant facts most prominently includesinstitutional practice, the actions or practices of political institutions and ultimately the actions and psychology of the agents that operate within such institutions. You came to have the right to have the defective phone replaced or repaired by the seller and under the conditions mentioned when certain facts of this kind obtained: most directly, when the European Parliament and the Council of the EU adopted a certain Directive and the UK Parliament adapted its own legislation to give effect to it. You did’t have that specific right under the specific conditions before these actions were taken, and there is no guarantee you will retain the right now that the UK has completed its withdrawal from the EU and may take unilateral action to modify or abolish it. You couldn’t have come to have the right or, once you did, to lose it, unless some facts of that character obtained. Your right is therefore contingent upon and varies with the actions and practices of political institutions. The task for theories of law is to offer an account of legal rights and obligations that explains these relations. Legal positivism is an account of legal rights and obligations that appeals, at the fundamental level, exclusively to institutional and other nonmoral social considerations. Interpretivism is a kind of natural law or “nonpositivist” theory since it claims that, in addition to institutional practice (and perhaps other nonmoral social factors), certain moral facts necessarily play some role in the explanation. It makes a number of related distinctive claims within that approach.

First, interpretivism says that the explanation of rights andobligations in which both moral principles and institutional practiceplay some role is a kind ofinterpretation. Interpretationin the relevant sense is the study of normatively significant objectsor of the actions of producing such objects and the practices withinsuch production takes place. It is a familiar point from literary andother kinds of interpretation in the arts that an interpretation mayimpute to its object a certain content that consists in or reflectsits normative significance or impact, without thereby imputing thecontent to the psychology of the agent who produced the object; it is also a familiar point that an interpretation’s success does not depend on such endorsement. In the case of law, an interpretation so understood maycorrectly identify, say, the change in rights and obligations thatobtained in virtue of some enactment, even though the enactment’s havingthat impact was not considered and endorsed, in some specified sense,by the enacting institution.

Second, interpretivism says that interpretation identifiessome moral principles whichjustify, in some specified sense,the enactment’s having the impact in question. The pointgeneralizes. For institutional practice as a whole, or for any individualaction or attitude or other aspect of the practice, certain moral principlesjustify its having the impact on the law that it does have. Theprinciples thereby make it the case that it has it.

Third, for interpretivism, the justifying role of principlesisfundamental: for any legal right or obligation, some moralprinciples ultimately explain how it is that institutional and othernonmoral considerations have roles as determinants of the right orobligation. In the order of explanation, morality comes first.

The relevant notion of justification has two aspects. First, theprinciples and therefore the moral facts that they reflect givereasonswhy any aspect of institutional practice or othernonmoral consideration bears on legal rights and obligations. The principles therefore explain why any such consideration islegally relevant. Second, the principles thereby determinehow any such consideration bears on rights and obligations. An interpretivist might say that certain principles of fairness orprocedural justice give enactments some role in determining rights andobligations. The precise role depends on the precise reasons whyenactments should have it. An appeal to principles of fair noticemight give, other things equal, a central role specifically to the plain meaning ofthe text of enactments. But on the hypothesis that democraticallyconstituted assemblies have justified power to shape rights andobligations as they choose, some conception of such assemblies’linguistic intentions, or of their intention to affect the law in someparticular way by the relevant enactment, might be given priority. There may bespecial cases. An interpretivist might say that, because fair noticeis essential to the permissibility of criminal punishment, criminalstatutes affect the law only as narrowly construed. An interpretivistmight further say that, in all cases, certain more specific moralprinciples control “the operation and effect” of all laws(as theRiggs v. Palmer court famously said, 115 NY 506(1889)).

Similar hypotheses would be germane to cases or institutional practicein general. For example that, because government ought to treatmorally like alike when it exercises its coercive power, judicialdecisions should stand; such that past decisions partly determine whatrights and duties now obtain in circumstances similar to those of precedent cases in their morally relevant respects. Or, more abstractly,that, because government has a duty to bring its action under acoherent scheme of principle when it recognizes and enforces claimsagainst some person, its institutional practice affects rights andobligations as certain principles dictate: namely the principles whichtogether justify the practice’s having that role. Inthese examples, the moral facts that the principles express explainwhy andhow the institutional action in question affects legal rightsand duties and therefore the principles’ role is toassign toinstitutional practice, or any of its aspects, their ownrolein the explanation.

Fourth, since in these explanations the mechanism, throughwhich institutional practice determines rights and obligations,follows from some moral principles that give the practice that veryrole, the rights and obligations so determined have genuine moralforce. For other conceptions of law, the question of the moral forceof rights and obligations in law is separate from and must come afterthe question of how institutional practice constitutes them(Stavropoulos 2012). We first ask how the practice determines rightsand obligations, which is a conceptual or otherwise nonmoral questionthat aims to identify the legally relevant aspects of institutionalpractice. Since our investigation is nonmoral, these must beunderstood as the factors that determine the content of legal rightsand obligations, though not their force. We then ask the moralquestion, left open by the initial investigation, whether rights andobligationsso determined truly bind. (Typically, thequestion takes the form of whether we have an obligation to obey thelaw.) The appropriate moral question is therefore severely constrainedby the answer to the first, nonmoral one. We should ask what wouldhave to be true if the institutional factors already identified aslegally relevant were to constitute genuine moral rights andobligations. And of course there is no guarantee that what would haveto be truewould be true as often as one might suppose, or that itcould be true at all. Perhaps legal rights and obligations are rarelyor never morally ratified.

This approach separates the metaphysical investigation of grounds fromthe moral investigation of force. Considered from this perspective, amoral explanation of how institutional practice determines rights andobligations of the sort offered by interpretivism may seem to belongin the second part of a complete account of the phenomenon of law, thepart that concerns whether legal rights and obligations, nonmorallyidentified, have genuine moral force.

However, interpretivism is a thesis about the grounds of legalobligation which purports to compete with the two-stage and othersuch theses, not a thesis merely about the force of the obligationsthat institutional practice constitutes in some nonmoral way. Rather,interpretivism builds moral investigation into the metaphysical one.The moral explanation that it offers assumes no nonmoral prior accountof grounds and leaves no residual question whether legalobligations have moral force.

That said, there is an important distinction between two ways ofunderstanding the interpretivist claim that institutional practice andmoral facts both play roles in the explanation of legal rights andobligations.

On thefirst way of understanding the claim, institutional practiceconstitutes by itself part of the law; moral facts constitute bythemselves another part; and the final content of the law is somefunction of the two parts. On thesecond, institutional practice isone factor in the explanation but does not constitute any part of thelaw. Rather, morality and institutional practice both figure in theconstitutive explanation of the law in the sense that the practicedetermines the content of the law as certain moral facts dictate andin virtue of those facts.

As we will see, a different version of interpretivism corresponds toeach way of reading the claim that institutional practice and moralitytogether ground legal rights and obligations. The firstversion,hybridinterpretivism, which understandsinstitutional practice as an independent ground, may give rise to aconcern of moral bias in the approach to the metaphysical problem. Forit is reasonable to suspect that this kind of interpretivist sets outwith the goal of finding moral force in the law, andthe purpose of combining the institutional base with a moral overlayis to secure such force. On the second version,pureornonhybridinterpretivism, which reflects thesecond reading of the distinction, there is no scope for suchbias. For according to that version morality mandates the constitutiverole that the theory assigns to institutional practice; while there isno nonmorally predefined route through which the practice is supposedto determine any obligations.

It will help to develop these claims in comparison to the orthodoxview about how institutional practice affects legal rights and obligations.

2. The orthodox view

On the orthodox view (reflected in Hart 1994, and developed in its strongest form in Raz 1994), questions about the existence and content of legal rights and obligations are questions purely of institutional history. Legal rights and obligations are creatures of institutional action. Institutions that count as authoritative in a legal system create, modify, or extinguish a legal right or obligation primarily through communication (see e.g. Hart 1994 at 124). Institutional communication has its own logic. When an institution passes a statute or adopts a regulation, it must be understood to be conveying a norm (a standard that mandates or permits some action) or, more precisely, to be conveying the institution’s intention to create, by the act of conveying the intention, a norm with the stipulated content. From the perspective of the institution, such an act of communication always has the force of a binding order that subjects are meant to obey and brings into existence a binding norm, namely that subjects ought to take the stipulated action. The norms produced by institutional communication so understood (and possibly also the norms that institutions consider and tacitly endorse in their customary practices) are valid norms of the system and make up the entire content of the law. A legal right or obligation exists when and in virtue of the fact that a norm that is part of the law so understood confers or imposes it, therefore ultimately in virtue of the fact that some institution said so. On the orthodox view, it is a basic, conceptual truth about law that institutional action determines legal rights and obligations in this way.

These considerations describe themechanism through whichauthoritative institutional action constitutes rights and obligations. Furtherquestions arise. What makes for authoritativeness in the relevantsense (which institutions count as authoritative in the system)? Howis legal validity related to moral force?

The question which institutions count as authoritative in the system is to be settled in the first instance by other norms constituted by authoritative directive that count as more fundamental. But this kind of explanation can only go so far. To avoid regress, the question must be settled ultimately by some factor other than an authoritatively created norm. A prominent suggestion is that the factor that ultimately explains legal authority is the settled official practice of recognition of the action of certain agents or institutions as a source of norms (a practice that may be considered itself as constituting a customary norm that is tacitly endorsed in and regulates official practice and from which legal institutions ultimately derive their authority to create valid norms; Hart 1994).

On the other hand, the considerations in discussion settle thelegalrelevance of institutional decisions: the decisionsmatter to the law as institutionally valid norms that imposeobligations, which are genuine moral obligations from the point ofview of the system (Raz 1990;contra Hart 1982). They settle,at the same time,the terms in which the further question ofthe decisions’ genuine normative relevance must be posed. This becomesthe question whether institutional communications work as advertised, such that theytruly create norms (norms that are valid outright, not merelyin the eyes of the institution that produced them) and therefore whether subjects do acquire anobligation to take some action because the relevant institution saidso. In sum, the question of the genuine normative relevance ofinstitutional action becomes the question of whether the institutionshave legitimate authority so understood (Raz 1990). Finally, these considerations leave open the question of what moral conditions must be met for the institutions tohave legitimate authority. This is the business of theories of justification of authority, which include theories that appeal to consent, political association, democracy, or the ability of legal authority to secure cooperation or help subjectsbetter conform to right reason. (For an overview,see the entry onauthority; see further Finnis1980, 1989; Raz 1986; Dworkin 1986. Notice that on Dworkin’s viewpolitical obligation is grounded in political association. Associationgenerates obligations that associates owe one another, rather than anobligation to obey authoritative directives.)

Some writers defend a less austere version of this model, by weakeningthe notion of legal validity. They say that the validity of anorm needn’t depend solely on whether aninstitution has conveyed the norm but may further depend on certain moral conditions, provided such conditions are laid down by more fundamental institutionally created norms. For example, if the Constitution entrenches some values, the conditions of validity of norms created by ordinary legislation would include those values. In such a case, the valueswould play the crucial role only because some institution—aconstitutional assembly—said so. In another variant, values maybe made relevant to legal validity by the customary norm that governsjudicial practice, which is the most fundamental norm, constitutive ofa legal system. In thatcase, the nonnormative social fact of custom that constitutes thefundamental norm would make the values relevant to the validity ofordinary norms (Coleman 2001a). In all these cases, rights andobligations in law are explained ultimately by nonnormative socialfacts, but moral facts occupy some place further up in the order ofexplanation.

3. Hybrid Interpretivism

Hybrid interpretivism represents another possibility alongthat spectrum. It begins at the austere norm-based explanation of lawbut defends an even more inclusive conception.

For hybrid interpretivism, the set of institutionally validnorms—the norms determined by what the institutionssaid—forms the interpretive baseline. Interpretation is a kindof moral processing of these norms. To interpret is to assess thenorms constituted by institutional communication and adjust the set inorder to make it more attractive in some way—to make it betterconform to the abstract point of legal practice against which it isinterpreted. Hybrid interpretivism is therefore the thesis that theinstitutional input to the interpretive process—what theinstitutions said—does not alone yield the final, complete setof legally valid norms. Rather, the final set of valid norms is theoutput of the process. The final set takes as an additional inputcertain moral facts. Yet the contribution of each kind of inputremains distinct. Each episode of institutional communication, byitself, creates an institutionally valid norm which it makes availablefor interpretive scrutiny. The hybrid interpretivist considers assettled, without reference to any moral or other substantive normativefacts, how the contingencies of institutional practice contribute tothe law: he relies on the orthodox explanation of that mechanism(cf. Raz 1986, attributing the hybrid view to Dworkin). But he thinksthat there are additional conditions of validity. Substantivenormative facts may filter, supplement, or otherwise modify theoriginal norms, as dictated by the interpretive goals in play. Legalvalidity of a norm now entails that the norm was either created byofficial communication and survived interpretive scrutiny or that itbears a certain relation, defined by the general point of legalpractice, to such survivor norms.

One variant of hybrid interpretivism is the conception of law asconsisting of both rules and principles. This is typically attributedto Dworkin’s early work (Dworkin 1978; notice that Dworkin actuallydisowns this view: 1978, at 76). Institutions convey rules, as Hartclaimed. These are screened and rejected or modified to the extentthat they conflict with certain basic moral principles of fairness orjustice, as they did inRiggs. Rules are also supplementedwith non-conflicting principles in hard cases, where the rules aloneyield no determinate results. In such cases, the principles fill thegaps. The law is the hybrid of the two sets of standards generated bythe filtering and gap-filling operation.

A sophisticated variant of this view can be built around the notion ofprincipled consistency (“integrity”) which, according toDworkin’s later work, is a distinct political virtue that forms thefoundation of law (Dworkin 1986). Taking principled consistency in thelaw as an interpretive target, the interpreter identifies a set ofprinciples that together justify the given set of norms. Theinterpreter works therefore with two sets of norms, one composed ofnorms conveyed by institutions, the other composed of uncreated,genuine moral norms—general moral principles. He is to comparethe two sets, and adjust the first in light of the second. He may thensay that the law now includes both the original norms and theprinciples (or perhaps some further norms determined by theprinciples). Like its older, rules-and-principles cousin, the law is ahybrid, a creature of the two separate sets of standards, one groundedin social facts, the other in moral facts, that interpretation blendstogether (cf. Raz 1986). (A closely related variant says that the law is simply the set of principles that best justifies the institutionally given norms or, more loosely, the legal and political practices that generate them; Greenberg 2014).

In this operation, the principles (and the further norms that theydetermine) are valid in virtue of the relation of justification theybear to the original norms. In the presently relevant sense ofjustification, an eligible principle is one that reflects an idealarrangement, prescinding from institutional practice, against whichnorms that the practice produced are measured, provided the principleis at least logically consistent with the norms. Consider principlesthat set out the morally right way to identify and deal with privatewrongs, setting aside the actual practice of institutions in thatarea. Such principles would be germane to the project of designinginstitutions of tort from scratch or of reforming existing ones. Butfor some principles to be said to justify some actual, institutionallycreated, norms of tort, as the hybrid interpretivist says his favouredprinciples do, it wouldn’t be enough that the principles captured therelevant ideals. They would further need to be at least consistent, insome specified sense, with the norms. A principle wouldn’t count asjustifying an institutionally created norm in any sense, when itprohibited what the norm required or permitted. For any putative set of justifying principles, it’s a condition of eligibility additional to and independent of merit that the principles be consistent, in somespecified sense, with the set of the original norms.

The understanding of principled consistency used in this conception ofinterpretivism corresponds to one understanding of Dworkin’s famousdistinction between fit and justification as dimensions ofinterpretation (Dworkin 1986). Dworkin said that correctinterpretation must both fit and justify its object. On theunderstanding in discussion, fit operates as a threshold constraint oneligibility of interpretations. Independent moral appeal governs thechoice among alternatives that pass the threshold (cf. Raz1994: 223). Fit, on this conception, is meant to ensure that a candidate interpretationis indeed an interpretation of some object rather than aninvention. It is a nonmoral constraint, in two ways. First, it ismeant to secure consistency with a set of norms that are grounded innonmoral considerations—in the action and psychology of agentsand institutions. Second, the relevant notion of consistency itself ismeant to be nonmoral, a constraint of formal consistency between normsand principles. (See Greenberg 2004 on fit as a matter of formalconsistency with practice. Greenberg argues that a constraint offormal consistency is empty.) The thought is that the original set ofnorms could not really constrain interpretation if substantive, moralconsiderations played some role in determining what it is to fit thenorms. If the notion of fit were tainted by the very kind ofconsideration that defines the ideals against which the actual normsare to be measured, the distinction between interpreting the actualpractice of institutions and inventing a new, better practice would beerased.

In order to pursue principled consistency in the law while taking theset of institutionally created norms as the baseline, the interpreterwill have to aim at a composite objective, which can be analysedinto its components. He will have to strive for principle and forconsistency.

Some of the time, the interpreter may be able to pursue both objectivessimultaneously without difficulty. Given some principles that justifynorms in this sense, the interpreter might add to the set certainfurther norms such as those implied by the explicit communication thatconstitutes the original norms, if adding those norms would give better effectto the principles and thereby improve principled consistency (on thecurrent understanding of that notion) in the way government treats itscitizens. Or he may add certain norms that correspond to the relevantprinciples so do not conflict with the prior, institutionallycommunicated norms with which by hypothesis the principles areconsistent, whether or not the new norms are implied by theprior norms. Or (if this is different) he may add the norms thatjudges are morally required to rely on in order to resolve residualmatters in domains that are only partially regulated by the originalset. In his view, the expanded rather than the original set ofstandards would be valid law.

But the interpreter can’t reasonably hope that his work will always beso easy. Even assuming a fairly decent institutional history, the setof norms that would form the baseline would be the product ofpolitical action taken by different agents at different times, with avariety of motives and facing different political and otherconstraints in their choices (Raz 1994). The norms produced mightconflict in their justification, some consistent with one scheme butindefensible under another. There might be no scheme of independentlyappealing principles—certainly not a perfectly just andotherwise compelling scheme—consistent with all the normswithout exception. If the baseline included a norm that couldn’t bejustified by his favored scheme of principle, the interpreter mighthave to try a different, less than perfect scheme, under which theproblematic norm might be subsumed, and trade merit forconsistency. But even if he were willing to accept a measure ofimperfection in a scheme’s appeal, he might fail to find any eligiblescheme, in which case he would have to reject the norm. Of course, ifthe communicated norms were to function as a fundamental,pre-interpretive constraint, rejection would have to be rare andsubject to special justification. Only something about the remaininginstitutional norms—that they all cohered with a given set ofprinciples—could allow the interpreter to reject theoutlier.

On the other hand, there might be several mutually inconsistentschemes of principle, each consistent with the original set ofnorms. The interpreter would therefore have to choose from among theseschemes on grounds other than consistency with institutionalpractice. Normally it would not be permissible, on this model, to adda principle to the original set of norms (or to rely upon it togenerate more norms) just because it was attractive. Rather, theprinciple would have to bear a relation at least of consistency withsome norm in the original set. But, in case that relation did notuniquely determine the principles in a scheme, the interpreter wouldhave to choose without being able to ground the choice by appeal tothe original set. He would have to choose on merit alone. (This is aconsequence of the model that has attracted a lot of criticism. SeeRaz 1994: 223–6; Finnis 1987, 1992. For Dworkin’s protests thatthe distinction is merely heuristic, and should not be understood tomark two different dimensions of interpretation, see Dworkin 1982,1986, 2006.)

A harder problem would arise where there are multiple candidateschemes of principle that are unequal in both independent appeal andconsistency, and imperfect in each dimension. Should the interpreterreject more of the original norms in return for an improvement in appeal, or accept alarger compromise in appeal for a gain in consistency? At least insome cases, where the relative gains and losses would not bedisproportionate on some conception of their magnitude, theinterpreter could not appeal to either merit or consistency to justifya choice and it is unclear to what else he might appeal.

There are further difficulties. Hybrid interpretivism gives us noreason to abandon a sharp distinction between the pre-interpretivelygiven corpus of institutionally valid norms constituted bycommunication alone, on which interpretation operates, and the finalset of norms that interpretation yields. It therefore makes it seemthat the question whether the law is limited to the unprocessed inputor extends to the processed output is merely verbal (Hart1994, Postscript;Schauer 1996; Greenberg 2011a).

Given these problems, hybrid interpretivism makes interpretation tooclose to cooking the books to make them reflect some ideal which, if leftalone, they fail. It is reasonable to take it, not as a doctrine aboutwhat determines the content of the law, but instead as an argumentabout how best to decide hard cases given the law (now understood tobe restricted to the institutionally communicated norms). It becomes atheory of adjudication, which builds upon the orthodox explanation ofhow institutional action creates rights and obligations, namely by conveying norms, and recommends some way of resolving disputes giventhose norms. Even so reinterpreted, problems remain. For hybridinterpretivism now seems to recommend that judges extend the effect ofany norms they find (or at least the ones not bad enough to fail thetest of consistency with even the least acceptable scheme ofprinciple) into situations the norms don’t explicitly or clearlyregulate, and it’s doubtful that some political ideal should supportthis conservative policy (Raz 1986: 1111,1994: 224).

The immediate source of the difficulties lies in the compositecharacter of the ideal of principled consistency deployed by hybridinterpretivism, which entails that the interpreter must simultaneouslyaim at consistency and merit, understood as separate targets whichneedn’t coincide. Given the difficulties, it is unclear thatinterpretation could secure completeness, understood as the potential toresolve all possible disputes (which is often understood to beinterpretation’s further, perhaps basic objective; see Raz 1994;Finnis 1987; see also Leiter 2007, who claims that the thesis thatthere is a right answer to all legal questions is at the core ofDworkin’s project). The composite conception of principled consistencyis forced upon hybrid interpretivism by its fundamentalcommitment, to which the difficulties are ultimately traced: that thestarting point of interpretation must be some norms constituted by thecontingencies of institutional communication, and thatinterpretation’s purpose is to compare and somehow to reconcile thosenorms with ideals.

The hybrid interpretivist may claim that it is a deep constitutivefact about law that the institutional input to the law must beinterpreted in the relevant sense. Still, his view is hybrid in thatit takes as the fundamental, pre-interpretive constituent of the lawsome norm-creating acts of communication. So the basic explanation of thelegalrelevance of political decisions—that thedecisions matter to legal rights and obligations and indeed that theymatter as such communications—is not itself interpretive incharacter. The fact that, other things equal, an institution’s say-somakes law, is a primitive legal fact, or at least a legal fact that isnot to be explained by either the nature of interpretation or somesubstantive interpretive conclusion in the legal domain. Hybridinterpretivism is not therefore faithful to the basic interpretivistidea that the legal relevance of institutional practice isfundamentally explained by some political ideals. For example, that the fact that it’sthe duty of government to treat its citizens in a manner consistent inprinciple makes institutional decisions relevant to their legalobligations, rather than supplement the decisions or filter theirresults.

Before we turn to that alternative, it is worth noting that hybridinterpretivism differs from the view,not similarlyunfaithful to the basic interpretivist idea, that some political ideal(perhaps involving fair notice) makes it the case that institutionaldecisions contribute to the law the norms that the decisions are widely understood to express or endorse. (An example is the doctrine Dworkincalls “conventionalism”, an interpretive conception of lawthat he rejects as inferior to the conception he calls“integrity”.) For such a view, political ideals andinstitutional history would together constitute the content of the lawin the right way. As a result, interpretation would be over at thestage of identification of the norms. Hybrid interpretivism, bycontrast, takes the norms as the object of interpretation and so itsstarting point, not its end.

4. Pure, nonhybrid interpretivism

Pure interpretivism is nonhybrid. It understands principles,institutional practice, and their relation differently.

Interpretivism begins at the question how institutional practice bearson rights and obligations. For hybrid interpretivism, this questionis, at least in part, pre-empted by the orthodox view on which itbuilds. Recall that according to the orthodox view, the practice itself (andultimately the very idea of law as that is commonly understood;cf. Raz 1986: 1114, 1994: 235 ff.) determines how the practice bears on rightsand obligations. This is so because the practice consists incommunication or tacit endorsement of norms which is meant to place subjectsunder obligations just by virtue of communicating or endorsing thenorms. By taking all this as given, hybrid interpretivismbegs in some considerable part the fundamental question at whichinterpretivism says one must begin.

In doing so, hybrid interpretivism commits itself to the existence ofsome normative content—the norms and the obligations that followfrom them—that is constituted by institutional practicealone. Moral principles contribute some more normative content, andthe final content imputed to the law is some combination of thetwo.

By shedding the orthodox base layer of its hybrid counterpart, pure,nonhybrid interpretivism takes no part of the basic question assettled in that way. It therefore does not take the practice alreadyto contribute norms, obligations, or any other kind of normativecontent, whether outright or from a point of view, or to consist incommunication that conveys or is intended to constitute normativecontent. It understands the idea that the practice, nonnormativelyspecified, plays a role in the fundamental explanation of the contentof the law differently: the practice is a factor in the explanation,but does not alone constitute any content. Nonhybrid interpretivism says that moralprinciples determine how the practice may determine such content.

There are several important implications. Institutional practice isconceived in terms of actions and attitudes, not norms or communication of norms. We start at what people do and say and think. Assemblies draft, debate, amend, andenact statutes. Agencies develop and adopt regulations. Courtsconsider disputes, resolve them and issue opinions, includingdissents, which offer reasons that support resolving the disputes inone or another way. In short, institutions and agents operating withinthem take actions, including the action of producing certain texts orutterances, and hold a variety of attitudes, whose role asdeterminants of legal rights and obligations is itself determined bythe moral principles in play. The principles may assign acertain legal significance to the fact that some assembly produced atext with some linguistic content. It does not follow from the fact that the action of producing the text is legally relevant that the action constituted a norm with the same content. Nonhybrid interpretivism does not assume that institutional practice consists in communication of norms with its own logic that is logic of the law. It does not assume that the practice contains in itself theparticular way in which enactments or decisions “aremeant” to constitute obligations. How institutional actionsconstitute obligations (the metaphysical mechanism) a matter fortheory. There is no special, privileged institutional perspective sono internal, perspectival notion of obligation.

A further implication is that legal obligations are not constituted bythe say-so of institutions, nor are their contents determined by whatinstitutions said. A legal obligation need not match the content ofofficial language (though a variety of moral factors will often see to it that it does)and needn’t be an obligation to take action for the reason that some institutionsaid so. If that’s obedience, legal obligation needn’t be obligationto obey.

It follows that the purpose of moral explanation is not to assess the moral force ofobligations whose content (and perspectival existence) is given inadvance of the explanation. It is to explain how obligations come toobtain, and therefore what their content is. No prior question ofcontent is taken as settled, and no further question of force is leftopen.

Since it competes, rather than build upon, the orthodox view that institutions communicate ortacitly endorse norms (which thereby become legally valid), pure interpretivism has no use forthe orthodox notion of norms understood to play substantialexplanatory roles (or for a metaphysically important notion ofalaw,as distinct from the informal notion that picks out statutes or otherlegislation). It is not a doctrine about the conditions of validity of norms. Legalnorms (or other standards) may figure in conclusions ofreasoning that summarize the legal effect of institutional practiceand are useful for exposition. Since standards so understoodarederivedfrom the explanation of the legal effectof practice, their existence isnotconstitutivelyresponsiblefor theeffect. Standards may also play an epistemic role: we may draw inferencesabout what rights and obligations exist from tried and testedformulations of standards, but the inferences are always subject toindependent confirmation and the formulations are subject to revision(Dworkin 1978: 76; Greenberg 2007; Stavropoulos 2013).

A related point concerns the structure of the explanation. On theorthodox explanation of law, institutions issue directives each of which conveys and thereby creates a valid norm. Theimpact of each individual institutional action is therefore distinct:it is the addition of a valid norm to the law. Norms so constitutedare then weaved together to form the complete content of thelaw. (This is not to deny that, on this view, some of the norms may concern preciselyhow to weave norms together, for example by stipulating thatlexposterior derogat legi priori.) The explanation is in that senseatomistic (Greenberg 2007). Nonhybrid interpretivism is not socommitted. Since it holds that morality determines how institutionalpractice affects rights and obligations, it inherits the holisticstructure of morality: the whole of morality confronts the whole ofinstitutional practice and determines its effect, which interpretationpurports to identify. Particular episodes of institutional practice,say the enactment of a new statute, change rights and obligations bychanging the content of the practice and therefore its moral effect(Greenberg 2007, 2011a).

The notion of justification is very different on this view. Moralfacts fix the relevance of other factors. The moral principles thatreflect those facts do not add content to the law, which needs to be combined with content otherwise contributed by institutions. They determine which precise aspect of institutional practice is relevant to the practice’s contribution to the law. The moral facts are therefore fundamental to the constitutive explanation of law, but do not directly determine its content. They determine how institutional practice determines the law.

A familiar hypothesis of that kind involves the principle thatdisputes that are similar in morally relevant respects should be treatedalike. This hypothesis dictates identifying morally relevant respectsin cases, which introduces a role for further hypotheses involvingmore specific principles that pick out those respects. Consider animaginary case, Roe v Doe, where Doe is ordered to compensate Roe forthe damage that she incurred, which was caused by Doe’s action. In thecurrently relevant sense, a principle, e.g., that one is responsiblefor damage caused by one’s carelessness on some conception of duecare, would be germane in case it identified the factor that wasrelevant to Doe’s liability. If it did, it would normatively explainwhy Doe was ordered to pay—it would show how it’s right that hewas. At the same time, the principle would determine how this decisionwould bear on other cases, given the duty to treat like alike. Itwould reflect the facts that ground the duty of due care and theliability that due care entails that is articulated by theprinciple. A principle that figures in such a hypothesis must, first,justify resolving an actual or hypothetical contested case in aparticular way; and, second, justify resolving past actual orhypothetical settled cases, i.e., cases the outcome of which is not indispute in the instant case, in the way they were or would have beenresolved. Hypotheses of this character have similar functions, whetherthey concern the action of institutions or of litigants. By pickingout the morally relevant features of some aspect of institutionalpractice, hypotheses of principle function as explanations of thelegal relevance of that aspect of the practice today.

Candidate factors are not restricted to what institutions said; norare they restricted to what settled legal opinion considersrelevant. Perhaps the court said that the fact that the damage wascaused by Doe’s carelessness was what made him liable to pay compensation. But the court might not have said so—it might havementioned something else, or said some conflicting things. Or it mighthave mentioned carelessness and damage, but might have failed to say whether themagnitude and likelihood of the damage compared to the burden ofprecaution were germane to the standard of care that Doe failed. Wouldthe fact that the court failed to mention these considerations ruleout their relevance to future cases? The answer would depend on somefurther principles that explained why and how past decisions as a kindare relevant, if they are, to instant cases. If courts should respecttheir past decisions because doing so reduces uncertainty or mitigates othercosts of economic transactions, a principle that the court failed toarticulate might be irrelevant to the bearing of a case on futurecases. But if courts’ responsibility is to engage with their pastdecisions because they must act with integrity, such principles may bedecisive (Hershovitz 2006b).

These complications are not special to case law. A number of candidatefactors might plausibly determine a statute’s effect on legal rights andobligations. The plain meaning of the text of the statute; the actual(linguistic) intentions of certain members or the assembly as a whole(on some conception of corporate linguistic intention) to say orstate something by producing the text; their intentions to changelegal rights and obligations in a certain way, i.e., to secure somelegal effect by using the specific language of the statute; the effectthey would have intended to achieve if they had considered somecircumstances they did not; the effect they wanted the statute to beregarded by the courts to have; the effect they expected it to beregarded to have; their second-order intention that a certainfirst-order intention, e.g., their linguistic intention, control theeffect of the statute; the political practices that existed before therelevant statute was enacted and were not thought at the time and eversince to have been affected by its enactment (Scalia1998); the purposes the statute was formally announced to serve in its preambleor in its sponsors’ reports; the reasons given in its defense duringdebates; and so on. Often all of these considerations will pull in thesame direction, so the choice among them would make no perceptibledifference. But they needn’t, and we can always constructhypotheticals to test their relative contribution to the impact thatsome decision has on the law.

For pure interpretivism, interpretive hypotheses are such tests andare designed to support the relevant theoretical choices. Thehypotheses appeal to principles of political morality that justifysome particular aspect of the institutions’ action having a role as adeterminant of rights and obligations. By doing so, they aim toestablish, for each candidate determinant of law, its precise impacton the law, including its impact when some other candidate pulls in adifferent direction (cf. Dworkin 1985, 1986,1998; Greenberg 2004; Stavropoulos 2013).

Candidate relevant factors include considerations—texts,practices, or attitudes—that concern the very question howcandidate determinants bear on the law. Intentions about whichintentions count, mentioned above (discussed in Dworkin 1985 and 1986)are such factors and canons or conventions of interpretation andprocedural provisions are familiar further examples. These are notexempt from the question why and so how they should bear on thelaw. Something other than the factors must determine their relevanceto the law, even when it is pre-theoretically plausible that they areindeed relevant. For example, an interpretive convention tends to havea significant effect on expectations about how the relevance of theother institutional factors that the convention concerns would beassessed in court, such that considerations of fairness favourconforming to the convention. If so, the convention is vindicated byconsiderations other than itself, and this holds for any similarfactor (see Dworkin 1985, 1986 regarding legislative intentions;Greenberg 2004 regarding any aspect of the practice that concerns therelevance of other aspects).

In this conception, the difficulties of hybrid interpretivism do notarise. Principles have the role of identifying the legally relevantaspects of institutional practice. Principled consistency in thisconception therefore consists in consistency in the morally relevantrespects of the practice. Principled consistency so understood has noroom for prior or residual concern about fidelity to the practice. Thepure interpretivist would say that, since it is not the case that wecompare moral ideals with some nonmoral code of norms constituted bythe content of institutional communication, the question does notarise whether we ought to trade merit for consistency, to weaken ourmorality to make it compatible with our history. Or whether we shouldtreat some ideal as a ground of obligation just because ourinstitutions have not clearly said anything inconsistent withit. Since we ask in what ways institutional history is morallyrelevant, the correct answer is determined by moral fact, not a moralapproximation or an ideal diluted by history. Yet the answer does notdescribe ideal arrangements—those we should want to have,prescinding from institutional history—but the normativesignificance of the arrangements we do have. So we shouldn’t worryabout our morality being too perfect for our history, or not asperfect as our history might let us get away with, or about how tochoose between the two. We deploy morality, as is, not to compare itwith history but to find what difference history made.

5. Why does institutional practice matter?

We have been discussing the question which aspect of institutionalpractice is relevant to legal rights and obligations. But how is itthat some or other aspect of institutional practice is so relevant?The pure interpretivist case would be severely undercut if at thatabstract level morality played no role in the explanation ofrelevance.

Pure interpretivism offers a thoroughly moral explanation of thenormative relevance of institutional practice, by identifying a moralconcern that gives the practice in the abstract such relevance. It characteristicallybegins at some familiar, structural features of legal practice, whoseexistence is usually tacitly assumed. Thefirst concerns theinstitutional character of law. It’s an unspoken fundamentalassumption in law that claims of legal right or obligation are claimsgrounded, in some appropriate way, in past institutional decisions andstanding practices of government—in actual not idealinstitutional arrangements—and that only claims so groundedshall be recognized and enforced. Call that kind of groundingthelegality of a claim. Thesecond concerns therole that the legality of a claim is supposed to play in relation tosome moral concern. It is not merely uncharacteristic but alsoimpermissible for legal institutions to enforce some claim against aperson, unless the claim meets the conditions of legality by beingappropriately grounded in institutional practice.

This is not the discredited claim that what it is for a legalobligation to take some action to exist is for some sanction to beattached to not taking the action, or that a coercive clause must ofnecessity be attached to every law. Rather, it is the claim thatputative rights and obligations may be enforced through theinstitutions of government only when and because they bear a certain relation tothe institutions’ practice. This is a normative constraint that is notdependent on whether occasion for enforcement ever arises. It iscloser to Kelsen’s view that legality is at bottom a boundaryseparating permissible coercion exercised in the name of the communityand impermissible coercion not so exercised (though of course forKelsen this would be a moral boundary that only need exist in the eyesof the law, whether or not it exists outright; see Kelsen 1952).

A familiar hypothesis is that the moral concern in play is raised byinstitutions’ effective power to use force or otherwise coercively todirect citizens’ action. Legality is supposed to constrain or regulatethat power, by constituting a necessary condition that demands againstpersons must meet if they are to be permissibly enforced. Notice thatin this role, legality is not a moral filter, a moral constraint on thevalidity of norms. In the hypothesis in discussion, there is no poolof candidate norms, identified by nonmoral tests, to be put through afurther, moral test, before they are pronounced finally valid. Rather,legality is a condition of permissible enforcement of demands againsta person, a special moral test that applies to any such demand,including those that are entirely unfounded as well as those that maypass other moral tests. (This is the moral concern, and correspondingrole of legality, developed in Dworkin 1986, see also Dworkin2011. Alternative interpretivist hypotheses might assign to legality asimilarly distinctive role in relation to someother moralconcern.)

On this view, it is essential to law that the legality of ademand—its being grounded in institutional history in the rightway—is a condition of its permissible enforcement. This is aclaim that is at once metaphysical—a claim about the nature oflaw—and normative—a claim about the morality ofcoercion. It says that the correct explanation ofwhyinstitutional history should have the role of constraint on coerciveenforcement (a substantive normative explanation of a political idealthat makes history morally relevant to the permissible enforcement ofclaims) determines the correct explanation ofhowinstitutional history determines legal rights and obligations (theconstitutive explanation of what it is, more precisely, for a claim ofright and obligation to be grounded in institutional history in thelegally appropriate way).

This general explanatory template can be filled out in a number ofways. The best known (Dworkin 1986, also 2006, 2011) begins at theclaim that what explains the role of institutional history in theidentification and enforcement of rights and obligations is that government’saction should be consistent in principle—some version of thevirtue of treating what’s morally like alike, perhaps ultimately to beexplained by some combination of reasons of fairness and government’sspecial duty to treat citizens as equals.

This approach is based on the view that, emergencies aside, it iswrong for government to exercise its power to coerce if such anexercise is not allowed by law. Here, the law is meant to work as aconstraint on government’s action, and its role as a constraint isclaimed to be grounded in reasons of political morality. (Recall that the constraint follows from moralfact, not the logic of institutional action.) If government is tostand behind my request coercively to enforce my demand against you,it must justify its action by appeal to its institutionalpractice. The explanation of the role of legality in the exercise ofcoercive power is that government is under a standing obligationalways to act in line with an honest conception of justice. It cannotbegin to meet this obligation unless it takes what it has said anddone on pertinent issues as relevant to what it may do now. Justice isegalitarian in character. The familiar requirement of treating morallylike alike would bind government to use force on a given occasion inthe way it has used or would use it in any other actual orhypothetical circumstances relevantly similar to the instant one.

Principled consistency in the use of force does not mean, in this,nonhybrid conception, that government is bound punctiliously to applyall norms promulgated by authorities or to repeat past mistakes. The claim is rather that themorality of coercive interaction makes institutional practice relevantto what may or must be done now. Government must take its other action(legislation, cases, etc.) seriously and act now in a way that’sconsistent in principle with that action, taken together. Any pastaction that cannot be justified under the scheme that justifies therest is action that is not after all relevant to what is to be donenow, and is to be set aside as mistake. We must revise ourunderstanding of principles on which we acted in the past, which mayhave led us to such mistakes.

Since government must make its action consistent in principle (ratherthan formally), the conclusion we should derive from this normativeexplanation, suitably elaborated, is that certain moral principlesthat together justify institutional decisions and settled practicedetermine legal rights and obligations. These are moral rights andobligations that bear the right relation to institutional practice,which therefore government may enforce, and must do so on demand,through its institutions (Dworkin 1986, 2011).

On this view, the morality of coercion fundamentally explains thenormative relevance of actual institutions (Stavropoulos 2009). Arelated familiar hypothesis in political philosophy assigns to themorality of coercion a fundamental role in the explanation of dutiesof socioeconomic justice. On this hypothesis, duties of justice(whether egalitarian, as many philosophers suppose, or not) obtain invirtue of the political relation that holds among those who are placedunder the coercive control of some government, and are discharged bydesigning institutions in a way that meets certain constraints (Nagel2005). Whether or not coercion matters in that way is a topic muchdiscussed in political philosophy, where writers are concerned withideal arrangements. The question is underexplored in relation to law,where we are concerned with the normative effect of actualarrangements.

As indicated above, nonhybrid interpretivism is not committed as suchto appeal to egalitarian concerns related to coerciveenforcement. Alternative explanations that vindicate the assumed roleof institutional practice in grounding obligations might be built onthe basis of considerations of fair notice (cf. the doctrine Dworkincalls “conventionalism”, Dworkin 1986) or other principles of political morality, perhaps including considerationsrelated to authority.

A further question concerns boundaries. This is a matter of the firstimportance for the orthodox view, which purports to organizeobligations by institutional source, but seems less urgent for pureinterpretivism, on which no obligations are explained by institutionalcontingencies alone.

Recall that, on the current approach, some moralconcern makes institutional practice relevant to rights andobligations, and the rights and obligations in question have genuinemoral force. But it doesn’t follow that just any action of governmentthat has moral consequences, or even action that changes rights andobligations, and any change in rights or obligations that obtains inconsequence of such action, is to be regarded as falling within thelegal domain. The interpretivist says that the justifying connectionbetween institutional practice and legal rights and obligations mustbe such as to serve as an adequate response to the moral concern thatis characteristic of legal practice. On the hypothesis we have beendiscussing, the concern is raised by coercive enforcement. Aconception of law must therefore articulate the relation that musthold between some right or obligation and institutional practice ifthe right or obligation is to be permissibly enforced. (Recall thatthat moral relation is, on this hypothesis, the relation of legality,and rights and duties are legal when and because they bear thatrelation to institutional practice). The requirement of legality sounderstood plausibly imposes procedural and other constraints on thekind of institutional action or other aspect of institutional practicethat may ground legal rights and obligations. Officials often makepublic announcements about their future behavior designed to shape theexpectations and thereby the action of their intended audience (as didthe President of the European Central Bank when he announced, at amajor investment conference organized by the British government, thatthe ECB will “do whatever it takes to preserve” thecurrency, Draghi 2012). Normally when we give assurances designed toraise expectations, we thereby change what we owe to those that weassure, often coming to have a duty to perform. But there is no reasonto expect that action of this kind, taken by officials outside normalprocedures, should in itself affect any legal right orduty. Equally, there is no reason to rule out its playingsome role in the determination of the impact of other, procedurallyproper institutional action or other aspect of the practice.

For similar substantive reasons, it does not follow from itsconception of legal rights and duties as moral consequences ofinstitutional action, that interpretivism cannot distinguish betweenenforceable rights and duties that obtain in consequence of the kindof institutional action whose role as shaper of such rights and dutiesserves the value of legality, on the appropriate conception, on theone hand; and further moral consequences, downstream of these rightsand duties, on the other. On the hypothesis in discussion, thedetermination relation between rights or duties and institutional practiceallays the relevant moral concern if it makes for principledconsistency in the practice (in the way discussed in more detail inthis Section and Section 4). On this basis, we can distinguish betweenthe legal duty of Albert, who owns a small business, to purchase anew, more costly health insurance program for his employees followingthe enactment of some new health care legislation that specifies acertain minimum coverage, and his further, derivative duty, owed tohis family, to reduce his personal spending to make ends meet giventhe increase in his business expenditure. By hypothesis, Albert comesto have the legal duty to purchase the new, more costly programbecause, once the new legislation is factored into institutionalpractice, that is what principled consistency in the practice nowdictates. On this basis, we can say that the duty obtains because ofthe difference that the legislation properly made to the law. On theother hand, Albert comes to have some duty of financial prudencebecause of the effect of these developments on Albert’s finances,together with certain personal circumstances and standing obligationsthat seem unrelated to the subject matter of legislation and to theprinciples that govern it. On these facts, there is no reason tosuppose that this duty bears the right relation to institutionalpractice, as that was changed by the legislation, which would qualifyit is as genuine legal duty whose recognition and enforcement wouldserve principled consistency. We have no basis, in this case, to saythat the duty was due to the difference that the legislation properlymade to the law—though it remains possible that the effect ofthe difference the legislation did make on Albert’s finances mightbear on some aspect of antecedent legal rights or duties that he mighthave, e.g. a duty of child maintenance.

6. Disagreement

The fundamental assumption that ties enforcing rights andobligations to institutional practice serves to fix the subject matterof inquiry by setting the interpretive problem. Notice however thatit does not rise to a conceptual constraint as these are normallyunderstood. For the theory treats it as a commonly held moralhypothesis about the normative relevance of institutional practice. Asa substantive hypothesis it is not immune to doubt but is subject tocritical scrutiny. It would remain possible coherently to reject theassumption as mistaken, as long as an alternative hypothesis couldmake intelligible other common pre-theoretical commitments. Thedoctrine that Dworkin (1986) calls “pragmatism”illustrates this possibility, since it rejects the dependence ofpermissible enforcement on legality as defined above, and recommendsinstead that claims of obligation be enforced when doing so isjustified by forward looking considerations. For the pragmatist, theclaims’ relation to institutional practice is to be invoked merely forstrategic purposes. We might say that the assumption that connectsenforcement to institutional practice fixes but does not determine thesubject matter of legal theory. Moreover, the basic assumption doesnot by itself entail an answer to the interpretive problem that itsets. That is the problem of constitutive explanation with which webegan: how institutional practice figures in the constitutivedetermination of legal rights and obligations.

This picture requires that it be possible to share a subject matterwithout sharing truths that define it. Interpretivism about lawimplies the possibility of disagreement about the grounds of law,because it makes law’s constitutive explanation a matter ofsubstance—specifically, a matter of the moral justification ofthe role of institutional history in the determination of rights andobligations. Notice that the possibility of disagreement about groundsis implied not only by the controversial nature of morality, butalready by the substantive (therefore potentially controversial)character of the grounds. If the question of grounds is substantive,we can disagree about what they are without changing thesubject. Unsurprisingly, this is the issue with which DworkinbeginsLaw’s Empire (1986).

One way to make out the possibility of disagreement about grounds thatinterpretivism implies is to show that disagreement of that characterobtains. Dworkin said that disagreement about the grounds of law ispervasive. Many of his critics objected that the kinds of disagreementthat Dworkin seemed to have in mind can be explained in a way otherthan as disagreements about grounds: for example, disagreements aboutthe social facts that constitute legal norms, or about how to applythe norms, or about how to decide cases where the norms run out(therefore how to extend the law), against a background of agreementon the grounds of law (Leiter 2003; Shapiro 2007, though not adefender of interpretivism, finds such responses unsatisfactory).

Another strategy is to show the possibility of such disagreementdirectly, by offering arguments against the view that it must beimpossible.

The first strategy is unlikely to be productive. (Notice that sometheorists nonetheless think the strategy important to the defense ofinterpretivism; see Smith 2010.) The interpretivist might begin byconsidering judgments about the existence of some legalobligation. His critics will say that disagreement in such judgmentsconceals agreement on grounds. The interpretivist will say thatagreement in such judgments conceals disagreement on grounds. Absentsome demonstration that actual agreements and disagreements are of oneor the other kind, it will be hard to resolve the issue. It ispossible instead to construct an inference to the best explanation ofthe phenomena, and the interpretivist may press that line. However, as Iwill suggest, the success of his thesis does not depend on theoutcome.

The second strategy addresses what really matters forinterpretivism. It may be that all lawyers agree on some question about the grounds oflaw. That would be consistent with it being a matter of substance whatthe grounds are: perhaps lawyers just happen to concur in theirjudgments. What the interpretivist needs to show is that to challengethe consensus would not be to change the subject. He needs to showthat disagreement about grounds is on the cards.

To defend the claim that disagreement about grounds is indeedpossible, one would have to resist the assumption that, as a generalmatter, we can only share a subject matter by sharing truths thatdefine it. Indeed Dworkin, anticipating that his examples of disagreementthat appears to be about grounds would be reinterpreted by his criticsas disagreement about social facts or about how to change the law,invited his critics not to rule out the possibility that disagreementmight be more fundamental. He said that to think that disagreementabout grounds is never possible, for the reason that to share asubject matter we must share criteria that define it, is aphilosophical prejudice: he called the prejudice “the semanticsting” (see Dworkin 1986).

It is now a familiar claim in general philosophy that, in the case ofcertain objects and phenomena, an account of their nature is not builtinto the understanding that issufficient for competent use of the words that refer to them (or into the understandingof the relevant concepts that is sufficient for competent thinking). Such understanding, captured in criteria ofapplication and truths shared among competent users, does not providesufficient metaphysical guidance. In many cases, such understandingincludes an open-ended clause that allows for the existence of acertain kind of explanation of the nature of the objects, or, atleast, that understanding does not rule out some such explanation, yetcertainly falls short of picking out any particular explanation fromamong the eligible ones. In such cases, substantive investigation isindispensable to a complete explanation of the nature of the relevantobject, and often must come first, before we realize that it is indeedgermane to the nature of the object (Kripke 1980; Burge 1986; Rey1998; Williamson 2007; Stavropoulos 1996, 2012).

Now if it is granted that, at least in some cases, the explanation of the nature of someobjects may turn on matters of substance, the interpretivist maydefend the view that judgments about the grounds of law are open tochallenge. For he can simply construct such a challenge explicitly asone that disputes that the considerations that are generally regardedto be the grounds of law are indeed such grounds (cf. Burge’s strategyin Burge 1986).

It is easy for the interpretivist to pursue that strategy. He can showthat there exist different eligible and mutually inconsistentcandidates for legal relevance. Do achievement intentions oflegislatures (intentions to change the law in a certain way) play anyrole in the explanation of the impact of a statute? If so, do theyplay a constitutive or merely an evidentiary role? Do expectationsthat some arrangement introduced by statute will persist ever playsome role in the explanation of the statute’s impact? If so, do suchexpectations, even if formed in the face of explicit notice to thecontrary, prevent later legislation from radically changing theoriginal arrangement (cf.National Federation of IndependentBusiness v. Sebelius 567 US 519 (2012) (11-393), opinion of thecourt), or is their legal relevance extinguished by the explicitnotice (cf.National Federation of Independent Businessv. Sebelius, Ginsburg, dissenting)? As we already saw in section4, institutional practice includes countless examples of suchinconsistent eligible candidates, each eminently defensible as legallyrelevant. But suppose that almost all lawyers agree on the relevanceof one of a pair of inconsistent candidates. The fact that they do isyet another aspect of the practice, which is not privileged. For theinterpretivist, substantive—moral—considerations serve thepurpose of determining the relevance of any factor. On the basis ofsuch considerations, he can argue that the unpopular candidate is infact relevant so the lawyers’ consensus is mistaken.

This view traces the intelligibility of fundamental challenges aboutthe grounds of law to unusual moral views about the legal relevance ofsome factor. If this is correct, we should expect that such challengesmay occur with some regularity, and that arguments once widelyconsidered not colorable may come to be taken seriously and finally tobecome dominant. The quick transition, from nonstarter to endorsementby the US Supreme Court, of the view that the Constitution limitslegislative authority to regulate private civilian uses of firearms(District of Columbia v. Heller, 554 US 570 (2008) (07–290)),or of the view that the regulatory powers of the federal government donot extend to mandating the purchase of health insurance (NationalFederation of Independent Business v. Sebelius, cited above),are recent illustrations.

7. Related theories

Interpretivism offers a moral explanation of how institutional practice shapes legal rights and obligations. It is possible to offer an alternative explanation that is moral in character, without embracing certain other claims characteristic of interpretivism. Focusing on the mechanism through which institutions can change people’s normative situation, Greenberg (2014) and Hershovitz (2015) claim that legal rights and obligations are a subset of the moral rights and obligations that obtain in virtue of the actions of legal institutions. Greenberg claims that the subset is composed of those moral rights and obligations that obtain in the ‘legally proper way’. Which way is legally proper is to be understood in light of a normative constraint constitutive of law: that law is supposed to improve the moral situation. When legal institutions improve the moral situation, e.g. by taking action that secures coordination, the resulting moral obligations are legal obligations. But when the actions of legal institutions give rise to obligations to resist or undo or otherwise mitigate what the institutions did (an obligation to repeal legislation, shelter the persecuted, and so on), the resulting obligations do not trace to the action of institutions in the proper way (Greenberg 2014, Schaus 2015). By contrast, Hershovitz argues that we should not be overly concerned with the boundaries of the legal. As we saw, the question about the boundaries is a matter of the first importance for theories on which legal rights and obligations are created through some special nonmnoral mechanism but need not be consequential for theories that appeal to no such mechanism (see section 5). Developing a point from Dworkin, Hershovitz argues that the idea that there is an existing body of law, which comprises all and only those rights and obligations in force in a given system, plays no role in legal practice (Hershovitz 2015, crediting Dworkin 1978). He argues that the better view is that the practice of legal institutions has a variety of normative consequences, moral and prudential. We might use ‘legal’ as a label for some of those, depending on our purposes: for example, to mark the source of an obligation or the institution that gets to enforce the obligation (Hershovitz 2015).

It is common ground between these views and interpretivism that, like other contingencies, the practice of legal institutions may change rights and obligations because and to the extent that it is morally relevant. This implies that the rights and obligations so produced are ordinary, genuine moral rights and obligations. Moreover, it implies that legal institutions can exploit the fact that their action is generally morally relevant in order reliably and systematically to change what we owe to each other. While the views in discussion focus on these implications, interpretivism concentrates on the problem of identifying the content and operation of the principles that in fact make legal practice morally relevant and govern its effects on rights and obligations.

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Acknowledgments

I presented drafts of this entry at Pompeu Fabra University,Department of Law, and at the University of Michigan, Department ofPhilosophy. I am grateful to participants at these events for valuablediscussion. I was greatly helped by comments on earlier drafts byScott Hershovitz, Leslie Green, Liam Murphy, Dale Smith, and,especially, Scott Shapiro, and by many discussions with Mark Greenbergover the years on some of the topics discussed in this entry.