1. Dworkin, Ronald, Law’s Empire (Cambridge: Harvard University Press, 1987) at 94, 96, 109, 110.Google Scholar

2. See the example of the English case McLoughlin v O’Brian, [1983] 1 AC 410, discussed by Dworkin, ibid at 240-50.

3. See Dworkin, supra note 1 at 240-50.

4. See his criticism of metaphysical views in Ronald Dworkin, “Objectivity and Truth: You’d Better Believe It” (1996) 25:2 Philosophy and Public Affairs 87.

5. Dworkin, supra note 1 at 6-11.

6. Ibid at 35.

7. See my article, “Genuine Disagreements: A Realist Reinterpretation of Dworkin” (2001) 21:4 Oxford J Leg Stud 649, for a metaphysical criticism of Dworkin’s idea of genuine disagreements.

8. See Dworkin, supra note 1 at 31-43, 87-90.

9. Ibid at 114-50.

10. Ibid at 151-75.

11. Ibid at 176-224.

12. Ibid at 109-10.

13. Ibid at 224-75.

14. Dworkin’s constructive interpretation focuses on the legal participant’s point of view to understand legal actions, such as court decisions, and since law is a social practice that is constituted by actions, then an understanding of actions in legal or institutional settings will enable us to understand law as a social practice. However, understanding legal practices is different from understanding natural phenomena. The difficulty in the former lies in the different kinds of explanation. When I act in my capacity as a scientist and try to provide a theory about a natural phenomenon, e.g., human cells, I observe, carry out an experiment and make predictions about the nature of the phenomenon. By contrast, if I aim to understand legal practices and the activities of judges, I need to look at the meaning or point of law. We cannot view judges’ activities from the outside as a spectator or as a representation, i.e., as mere observers of their actions since we will not understand ‘what’ they are doing and ‘why’ they are doing what they are doing. Mere observation does not provide a complete and satisfactory story of what is happening. The methodological question will be whether understanding of the meaning or point of the legal practice is reached by imposition of meaning or value, i.e., Dworkin’s constructive interpretation, or by understanding how judges’ practical reasoning engages with values and activities. The latter is the proposal that I defend in this paper. I argue that to merely ‘impose’ meaning or values on legal actions and practices is to engage in a theoretical enterprise and entails to lose sight of judges’ practical reason which is the active principle of action; we lose sight of the intelligibility of the action which is given from the first-person perspective, i.e., the point of view of practical reason.

15. See Dworkin, supra note 1 at 47.

16. See Dworkin’s discussion of the legal case McLoughlin, supra note 2.

17. Dworkin, supra note 1 at 51, 52, 53-55.

18. Ibid at 52.

19. Ibid at 52.

20. Ibid at 51.

21. See Finnis on his review of Dworkin, John Finnis, “On Reason and Authority in Law’s Empire” (1987) 6:3 Law & Phil 357, where he insists that we should resist the temptation to think that Dworkin is defending practical reason.

22. For a criticism of intentional action as a mental state see my monograph, Law and Authority Under the Guise of the Good (Oxford: Hart, 2014).

23. See Dworkin, supra note 1 at 191.

24. Donald Davidson, “Actions, Reasons and Causes” (1963) 60:23 Journal of Phil 685.

25. See Julia Annas, “Davidson and Anscombe on the ‘same action’” (1976) 85:338 Mind 251. On related aspects of Anscombe’s work such as ‘practical knowledge’ see Kevin Falvey, “Knowledge in Intention” (2000) 99:1 Philosophical Studies 21; Setiya, Kieran, ‘Knowledge of Intention” in Ford, A, Hornsby, J & Stoutland, F, eds, Essays on Anscombe’s Intention (Cambridge: Harvard University Press, 2010);Google Scholar Kieran Setiya, “Practical Knowledge Revisited” (2009) 120:1 Ethics 128; Grunbaum, “Anscombe and practical knowledge of what is happening”(2009) 78:1 Grazer Philosophische Studien 41.

26. See Davidson, supra note 24 at 685.

27. Ibid at 685.

28. Ibid.

29. Ibid.

30. For example, Jay Wallace in the entry ‘Practical Reason’ of the Stanford Encyclopaedia of Philosophy points out: “Practical reasoning gives rise not to bodily movements per se, but to intentional actions, and these are intelligible as such only to the extent they reflect our mental states. It would thus be more accurate to characterise the issue of both theoretical and practical reason as attitudes; the difference is that theoretical reasoning leads to modifications of our beliefs, whereas practical reasoning leads to modifications of our intentions.”

31. See Harman, G, Change in View (Cambridge: MIT Press, 1986);Google Scholar Harman, G, ‘Willing and Intending’ in Grandy, Richard & Warner, Richard, eds, Philosophical Grounds of Rationality (New York: Oxford University Press, 1986) 363–80;Google Scholar Blackburn, S, Ruling Passions (Oxford: Clarendon Press, 1998);Google Scholar Smith, M, The Moral Problem (Oxford: Blackwell, 1994).Google Scholar

32. Some scholars denied that intentional actions are causes (J Dancy, Practical Reality (Oxford: Oxford University Press, 2000)). Others attempt to develop a notion of causation closer to the Aristotelian notion of causation as opposed to the empiricist or Russellian view. The Aristotelian notion of causation relies on the idea of a process whose actuality is required to produce what should be achieved for the agent’s intended ends to be achieved (R Stout, Action (Bucks.: Acumen, 2005) at 88-98). The underlying idea is the Aristotelian and Thomist view that one knows the nature of things by its capacities, and its capacities by its activities. See §3.2 of this paper for a more detailed explanation of the Aristotelian idea of causation in the context of intentional action.

33. Bratman, M, Intentions, Plans and Practical Reasons (Cambridge: Harvard University Press, 1987) at 4–5.Google Scholar However, for Bratman intentions are mental states (at 119). Bratman criticises Davidson (see his article “Davidson’s theory of intention”, reprinted in Faces of Intention (Cambridge: Cambridge University Press, 1999) at 209-24), but still continues to think that intentions are mental states. However, Bratman separates the idea of ‘intention’ from the notion of ‘desire’.

34. It seems that this commitment is the result of a conception of personhood. For a critique of Bratman, see Moran, R & Stone, M, “Anscombe on Expression of Intention” in Sandis, C, ed, New Essays in the Explanation of Action (London: Palgrave McMillan, 2010) at 132–68.Google Scholar See Shapiro, S, Legality (Cambridge.: Harvard University Press, 2010)Google Scholar for the application of Bratman’s conception of intentional action to the understanding of law. See my article “From Shared Agency to the Normativity of Law: Shapiro’s and Coleman’s Defence of Hart’s Practice Theory of Law Reconsidered” (2009) 28:1 Law & Phil 59. For a criticism of Bratman’s notion of intention and its relationship to coordination see T Pink, “Purpose Intending” (1991) 100:3 Mind 343.

35. Velleman, JD, Practical Reflection (Princeton: Princeton University Press, 1989)Google Scholar and The Possibility of Practical Reason (Oxford: Oxford University Press, 2000). In spite of his more sophisticated account, Velleman advocates the standard model in which the agent’s desires and beliefs jointly cause an intention to act, which, in turn, causes the corresponding movements of the agent’s body. JD Velleman, “What Happens When Someone Acts” reprinted in The Possibility of Practical Reason (Oxford: Oxford University Press, 2000) 123-43. For Velleman, the intention tends to cause an outcome by representing itself as tending to cause it.

36. Wittgenstein, Ludwig, Philosophical Investigations, translated by Anscombe, E (Oxford: Blackwell, 1953) at para 645.Google Scholar

37. For a discussion on this point see R Sheer, “The ‘mental state’ theory of intentions” (2004) 79:307 Philosophy 121.

38. Moran and Stone explain the why-question methodology as follows: “Hence all psychic forms are performance modifiers: insofar as they are employable in action-explaining answers to the question ‘why?’, they express forms of being on-the-way-to-but not-yet having Φ-ed, of already stretching oneself toward this end”. See R Moran & M Stone, supra note 34 at 148.

39. Anscombe’s exposition follows very closely Aquinas’s explanation of intentional action. Kenny, A, Aristotle’s Theory of the Will (New Haven: Yale University Press, 1979)Google Scholar points out that Aquinas’ model should be understood more as a Gestalt psychology. Recent work on Anscombe emphasises the point that acting intentionally should be interpreted as a series of successive steps towards an action. See R Moran & M Stone, supra note 34, and Thompson, Michael, Life and Action (Cambridge: Harvard University Press, 2008) at 85–119.CrossRefGoogle Scholar

40. R Moran & M Stone, supra note 34 at 137, explain the transformation of these three headings in the post-Intention literature. Most of the authors ignore the heading ‘expression of an intention’ and conflate the other two subheadings: intentional action and the intention with which the action was committed. Consequently, intention becomes a mental state. “Given the possibility of ‘pure’ intending, it becomes hard to see how this category could fail to designate a mental state, attitude or disposition of some kind. So the divisions of ‘intentions’ now take shape around the philosophical polestar of the division between mind and world: two notions of intentions find purchase only where there is behavior causing things to happen; a third refers to a mental state, attitude or disposition which, though in some way is present in such behavior, is also abstractable from it and capable of existing on its own.”

41. Anscombe, Elizabeth, Intention, 2nd ed (Oxford: Blackwell, 1963) at §;3–4.Google Scholar

42. Ibid at §4-6.

43. Ibid at §17.

44. Ibid at §25.

45. Vogler, C, “Anscombe on Practical Inference” in Millgram, E, ed, Varieties of Practical Reasoning (Cambridge: MIT University Press, 2001).Google Scholar

46. See Anscombe, supra note 41.

47. Ibid at §20.

48. Ibid at §21-22.

49. Ibid at §28-29.

50. Ibid at §29-30.

51. Ibid at §21-22, §25, §27-28.

52. Ibid at §33, §33-34.

53. Ibid at §35.

54. Ibid at §41-42.

55. Ibid §36.

56. Ibid §37-38.

57. Ibid at §41-42.

58. Aristotle, Physics, Books III and IV, translated by E Hussey (Oxford: Clarendon Press, Clarendon Aristotle Series, 1983) at III.1.201a9-11.

59. I follow the interpretation of Aristotle’s Metaphysics, Book Θ advanced by Frede and Makin. See Aristotle, Metaphysics, Book Θ, commentaries and introduction by Makin S (Oxford: Clarendon Press, Clarendon Aristotle Series, 2006). See also Frede, M, “Aristotle’s Notion of Potentiality in Metaphysics” in Scaltsas, T, Charles, D & Gill, M, eds, Unity, Identity and Explanation in Aristotle’s Metaphysics (Oxford: Clarendon Press, 1994).Google Scholar

60. Aristotle, Metaphysics, supra note 59 at 1046b 4-5, 6-7.

61. Ibid, Book Θ 5, 1048 a10-11.

62. Makin argues that the teacher analogy is intended to show that the teleological perspective is equally appropriate for other-directed and self-directed capacities. See supra note 59 at 198.

63. See R Velleman, Practical Reflection, supra note 35.

64. For further discussion of this point see my monograph Law and Authority Under the Guise of the Good, supra note 22.

65. In the English context, see Re Polemis v Furness, Withy & Co Ltd, [1921] 3 KB 560; cf Wagon Mound No 1 (Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd), [1961] UKPC 1.

66. Of course, Dworkin admits that creative interpretation has its limits within the genre that is interpreted. Thus, not all values, meanings or purposes will fulfil the standard of sound interpretation. However, there is not much explanation from Dworkin on how these limits and standards are supposed to work.

67. See Shapiro, supra note 34, for an attempt to show that legal systems are created by the collective intentions of planners (legislators and judges).

68. Aquinas, Summa Theologiæ, translated by Thomas Gilby, Latin and English text, paperback ed (Cambridge: Cambridge University Press, 2006) at Q17, 5.