Legal Interpretivism and Dworkin’s Distinction

Appropriating Natural Law Theory and Legal Positivism

By Christopher A. Saco
Chris Saco, a December 2014 graduate of Albany Law School, did his undergraduate work at the College of the Holy Cross. He obtained his bachelor’s degree in 2012 as a double major in economics and philosophy. Additionally, Chris’ capstone paper in phenomenology dealt with the intricate complexities of epistemology and moral agency.
It was his interest in morality that led Chris to attend Albany Law. He was accepted into the accelerated program and earned his J.D. in 2 ½ years. While in law school, Chris pioneered the new academic consortium and studied Invention, Innovation, and Entrepreneurship at Rensselaer Polytechnic Institute’s Lally School of Management and Technology.
Chris has taken and passed the New Jersey bar exam and is now a member of that state's bar.

There exist a variety of intersections between the law and philosophical discourse, and one of the most prominent junctures of these two fields occurs in the study of Judicial Process. Legal scholars and philosophers alike have arrived at different understandings of the judiciary’s indispensable role in establishing a principled society. Their knowledgeable decisions and publications frequently incorporated not only the black letter law, but also gave credence to humanity, morality, culture, and philosophy.

Undoubtedly, the law is a vital component within the institution of a functioning democracy, the chief reason being that an insufficiency of either democracy or law would lead to the inadequacy of the other. Furthermore, the history of civilization teaches us that a society with an established legal system often seeks to articulate the underlying reason for requiring these laws.

The question for legal philosophers such as Ronald Dworkin then becomes a matter of asking whether the reason for the law’s necessity is ingrained in morality or society. The principle focus of this paper will discuss how Dworkin integrates morality both into the choice of legal theory and into the legal argument itself.  In particular, this paper will explore Dworkin’s theory of Legal Interpretivism and how it appropriates the prior concepts of Natural Law Theory and Legal Positivism.
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To read the paper, open HERE.
(The power point presentation will be posted shortly.)

Textual Originalism versus Active Liberty

By Jeongkwan Lim

Jeongkwan Lim, an international student from South Korea, is in his second year at Albany Law School. He studied political science and philosophy as an undergraduate and received a masters degree in political science at Sogang University in Korea.  Prior to law school, he worked for a local government institution in Korea as a researcher.  Jeongkwan is interested in international law and philosophical debates about judicial power and the judicial process.

Jeongkwan's essay was prepared for the Judicial Process Seminar, fall 2012.

Why does Justice Antonin Scalia refuse to change his position on textual “originalim,” even though Judge Richard Posner provides evidence showing that his judicial philosophy severely lacks the coherence that is necessary to be persuasive?

Scalia, as a faint-hearted “originalist,” repeatedly insists that even though “originalism” is not perfect, it is relatively superior to “non-originalism.” According to him, it is superior with respect to “objectivity,” and objectivity is the most important characteristic when interpreting the Constitution.[1]

Nevertheless, when Scalia says “originalism” is an objective interpretive methodology, he is using two words that contradict each other: objective and interpretive. According to the Cambridge Academic Dictionary, “objective” means “not influenced by personal beliefs or feelings; fair or real.” “Interpretive” means “related to explaining or understanding the meaning of something.”[2]

Interpreting something is thus subjective. Without subjective personal beliefs or feelings--e.g., based on personal experience--we cannot shape our understanding of the meaning of something.

Posner anticipates Scalia’s probable response to the critique that there is no such “objectivity,” as Scalia claims, when we interpret the general words in the Constitution. As Posner puts it: “text as such may be politically neutral, but textualism is conservative.”[3]

Posner on Judging

His Reflections on Scalia and Breyer

By Yaronit Nordin

Yaronit Nordin, a second year student at Albany Law School, is a graduate of Bennington College in Vermont where she studied Literature and Photography.  After graduating law school, Yaronit hopes to practice in Vermont.
Yaronit's essay was prepared for the Judicial Process Seminar, fall 2012.

Judge Richard Posner’s jurisprudence or judicial philosophy can be said to emphasize honesty and practicality, and to discredit the idea that there can exist a perfect or unified analytical system applicable to any constitutional question that comes a judge’s way.

In “The Incoherence of Antonin Scalia,” Posner points to the failings and falsehood of “originalism” as Justice Scalia explains it in his most recent book.[1] In “Justice Breyer Throws Down the Gauntlet,”[2] Posner criticizes Breyer’s attempt, in his recent book, to fashion a loose-constructionist answer to “originalism” that Breyer calls “active liberty.”[3] 

Posner’s main problem with both Scalia’s and Breyer’s judicial philosophies is that both try to impose on the Constitution a framework that is too rigid for the real world, and one that is not or cannot be consistent with the document itself.[4]

Posner’s jurisprudence emerges from his analysis and is free of what he calls in his article on Breyer, a judge’s “self-censorship,” which leads judges to try to claim that their work is objective.[5] Posner embraces Ronald Dworkin’s “political morality”—a judicial philosophy that requires the judge to be a proponent of his legal determination, rather than to claim to be a passive oracle.[6]

Justice Clarence Thomas’ Interpretation and Application of the Constitution

Textualism, Originalism, and Natural Law as a Means to Reducing Judicial Discretion and Achieving Judicial Restraint
by Margaret Doody


Margaret Doody is a 2011 graduate of Albany Law School. She was a semi-finalist in the 2010-2011 Karen C. McGovern Senior Prize Trials.
In this paper, which she prepared for Professor Stephen Gottlieb's Supreme Court Watch Seminar, Ms. Doody examines Justice Thomas' use of a combination of interpretative methodologies in reaching ideologically conservative positions throughout his career.


Appointed to the Supreme Court in 1991 by President George H.W. Bush, Justice Clarence Thomas has developed a sound reputation as one of the Court’s most conservative members. Quite shortly after joining the Court in October of that year, Justice Thomas aligned himself with Justice Scalia and Chief Justice Rehnquist, forming the conservative trio that lasted until Rehnquist’s death in 2005.


It is easy to view this alliance as indicative of shared conservative views and jurisprudence. However, such an assumption is not entirely true. Although it is accurate to say that all three justices share conservative values, such a statement represents an oversimplified view of the individual justices’ jurisprudential styles. Upon closer examination, Justice Thomas stands out as possessing unique, while still conservative, views that are expressed and carried out through his own brand of jurisprudence.


In order to understand Justice Thomas’ jurisprudence, it is necessary to first understand the three separate elements that Thomas combines to form the unique methodological approach he applies when interpreting the Constitution and deciding cases. These elements are each distinct and independent approaches to Constitutional interpretation. They are textualism, originalism, and the application of the notion of higher law.
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Read the entire paper HERE