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Abstract

Interpretive theory about the nature of law is the view that ‘legal rights and duties are determined by the scheme of principle that provides the best justification of certain political practices of a community: a scheme identifiable through an interpretation of the practices that is sensitive both to the facts of the practices and to the values or principles that the practices serve’. Interpretivism was first postulated by Dworkin as a criticism of the positivist school of judicial reasoning which focuses on rules in interpretation, and is most closely asociated with the work of Austin and Hart. Dworkin rejects the positivist conceptions of law and interpretation, instead theorizing that rights are premised upon a comprehensive set of moral precepts that make individual rights valuable, and act as ‘trumps’. Interpretivism as developed by Dworkin includes the claim that interpretation is sensitive to values, and therefore fundamental to interpretivism is natural law. This paper examines modern judicial interpretivism, assessing the theories of Dworkin, Sunstein and Ely, by comparative analysis, including their advantages and disadvantages. By applying these theories to a recent judicial decision, it is possible to assess contemporary judicial interpretive theory in Australia.

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