La teoría interpretativa, el activismo judicial y los jueces Robin Hood: la culpa no es de Dworkin.

Abstract

This essay aspires to elucidate some of the fundamental postulates of Ronald Dworkin’s legal philosophy. In particular, the author argues that the thesis that law must always be interpreted does not imply that judges can manipulate the legal norms of their community in view of their own conception of justice. The essay distinguishes between two conceptual layers, intimately related though different, that are constitutive of Dworkin’s legal philosophy. The first one is his theory of law as an interpretive practice, whereas the second one relates to the specific interpretation of the legal practice he proposes: law as integrity. The thesis that law must always be interpreted pertains to the former layer rather than the latter. Instead, when it comes to enforcing the law, judges must use the adjudication technique included in law as integrity. Contrary to what is often assumed, this technique significantly reduces the margin of discretion of judges. The conclusion is that Dworkin’s theory does not promote judicial activism —at least no more than other theoretical approaches to the legal practice.