Abstract:
This contribution examines Fish’s and Dworkin’s accounts of the character and structure of interpretive agency within the practice of law. While both Fish and Dworkin offer expansive understandings of interpretation to explain the practice of law, they divide over treating interpretive legal practice as either the rhetoric (Fish) or the justification (Dworkin) of force. Embedded in this dispute are competing understandings of both the agents and the structure of ‘interpretive communities’ (for Fish) or ‘communities of principle’ (for Dworkin). Revisiting their disagreements over the relationship between agency, interpretation, and coercion raises the question: who does what in a community of interpreters? While Dworkin criticized Fish’s account of interpretation – as legal practice - for ‘robbing’ it of its ‘reflective and introspective’ character, Dworkin’s own insistence upon individualised reflection has been criticized for ignoring the public character of interpretation in the practice of law. We argue here that both Fish and Dworkin reductively characterise the relationship between agency, interpretation, and coercion, and they do so in a similar way, by flattening the structure of interpretive practice. This takes some of the sting out of Dworkin’s critique of Fish, by taking his own account of law’s justification closer to an account of the rhetoric of force.