Law and Legal Interpretation

Fernando Atria Lemaitre, Neil MacCormick

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9781138715578
• eBook ISBN: 9781351770101
• Topic: Ciencias sociales
• Subtopic: Sociología

This title was first published in 2003. Leading contemporary essays on interpretation are assembled in this volume, which offsets them against a small number of "classical" works from earlier periods. It has long been recognized that textual sources (constitutions, statutes, precedents, commentaries) are central to developed systems of law and that interpretation of such texts is one highly important element in adjudication, legal practice and legal scholarship. Scholars have also contended that the totality of legal activity is "interpretive" in a wider sense and debates about objectivity have raged. The reasons for this development are here critically scrutinized.

Introduction

Interpretation is one of the central elements in legal thought and activity. Lawyers have always needed to ascribe meaning to general terms and face cases in which either the meaning of them is not perspicuous or circumstances are present that are special in some way. For legal theory, however, interpretation and legal reasoning were important but marginal subjects, in the sense that the central questions legal theorists wanted to discuss did not include interpretation as a topic. Thus some of the most sophisticated legal theorists of the twentieth century did not think it necessary to develop a complete theory of legal interpretation as part and parcel of a broader theory of law. As an illustration of this claim one could turn to Kelsen's Pure Theory of Law (1970) which explicitly discussed interpretation in the last (and shortest) chapter or Hart's The Concept of Law which, as Hart himself conceded some 30 years after its publication, 'said far too little . . . about the topic of adjudication and legal reasoning' (Hart, 1994, p. 259).

During the last decades, however, interpretation (together with the related issue of legal reasoning) has been at the centre of the theoretical reflection about law. What is it that lawyers and judges and laypersons do when they interpret the law? Does the process of legal interpretation show that there is some connection between law and morality? Is it constrained by what is interpreted, or is it always (or usually, or sometimes) 'unfettered discretion'? How much of what lawyers do is properly called 'interpretation'? Questions such as these have been hotly discussed at least since the publication of Ronald Dworkin's 'Is Law a System of Rules?' (1970), which has been reprinted so many times that it has not been included in this collection (see, for example, Dworkin, 1977a and 1977b).

Starting from questions of this kind, one could try to systematize the problems surrounding the issue of legal interpretation in current legal theory under six headings, which form the basic structure of the present collection. This arrangement makes the collection more manageable for the reader, but risks giving the impression that only the corresponding subject is being discussed in each essay. In this Introduction we want to discuss generally the relevance of these six topics, and indicate the important contributions made by each of the selected essays. Along the way this will allow us to mention some of the aspects in which arguments or positions discussed in one essay have broader implications for subjects other than that denoted by its respective heading.

Interpretation and Law: Why is Interpretation Important for Law?

That interpretation is central to the practice of law is something that can hardly be denied. But this does not settle the theoretical problem, why is interpretation so important? An answer to this problem cannot be limited to pointing out that legal rules are general rules and they are used to solve particular cases, because in many social practices the need to apply general rules to particular cases does not make interpretation as important as it is in law (consider the 'interpretation' of the rules of chess, for example) (cf. Atria, 2002, ch. 1). Hence there must be something special about law that makes it so dependent on interpretation. As Joseph Raz says in Chapter 2, this seems to suggest that there is something to be learned 'about the nature of law from the fact that interpretation plays such a crucial role in adjudication' (p. 17).

The two essays grouped under this heading provide two different answers to this problem. In his 'Law, Philosophy and Interpretation' (Chapter 1), Ronald Dworkin provides a useful restatement of the theory of law and interpretation he has developed over the last 20 years, particularly in and after Law's Empire. Dworkin's theory is particularly interesting when discussing the issue of legal interpretation, because he believes that there is an important sense in which interpretation is not something lawyers and judges sometimes do, but is in a way constitutive of law. Traditionally, one would think of interpretation as a specific activity directed to understand a rule or apply it to a particular case. This view seems to imply that there are (first) legal rules that have to be (second) interpreted and applied. Dworkin's thesis of law as an interpretive concept challenges this viewpoint.

In his essay Dworkin emphasizes the fact that interpretation is not a purely legal phenomenon. Reliance upon interpretation is common for practices that share one feature: they are 'regarded by those . . . who take them up not as pointless but as beneficial or worthwhile in some other way' (p. 9).

Now, the particular way in which a particular practice like history or law is valuable depends on the participant's opinions about the practice. Hence, for example, Dworkin explains that there is a significant difference between historical and legal interpretation, in that the latter is not guided by an 'explanatory purpose' (p. 14) as the former is - a difference that will resurface in Detmold's essay, based on the idea of law being practical as sociology is not (cf. p. 36). Legal interpretation aims to make law 'as just as it can be' (p. 14). In this way, Dworkin treats law as inextricably connected with political morality, which is the reason why MacCormick (1976) called him a 'pre-Benthamite'. But this seems to leave Dworkin open to the objection that law is 'subjective' in the same sense in which political morality is. To this, Dworkin has famously replied with his 'right answer' thesis.' In its current version, the right answer thesis cashes in on the performative contradiction that prevents any agent from saying both that there is no 'correct' answer to controversial questions of political morality (or morality, or law and so on) and that something (abortion, say) is right (or wrong). Any objectivity that law may have is founded on the objective nature of the basic truths of political morality, as perceived by the participants.

In Law's Empire this argument was presented as the distinction between external and internal scepticism: internal, interpretive scepticism is substantive scepticism, in the sense that it is the conclusion we could reach after having examined the reasons for and against a particular proposition or decision and rejected them all. External scepticism is scepticism about the inteipretive process: it is not an interpretive claim; it is a claim about interpretive claims. Dworkin believes that we can ignore external sceptics because they do not engage with us. The only scepticism that should give participants to an interpretive practice cause for concern is internal scepticism.² But there is no reason to believe that it will be sensible to adopt a generalized internal sceptical position: sometimes we will have reasons to believe that one action, decision or proposition is true (or justified or whatever), and we will have reasons to reject the sceptical position on that issue. And sometimes we might be convinced of the non-existence of an answer that is correct or true or justified, and we will accept scepticism regarding this issue. Notice that if we adopt the internally sceptical position regarding an issue (for example, abortion), then, when asked, we will have to say that we take the position that there is no way of deciding whether it is right or wrong. This argument of Dworkin's, and the broader subject of the possibility of solutions to controversial questions (hard cases) being correct, is one subject that is discussed by many of the essays in this collection.

Dworkin's rejection of external scepticism, and his claim that only internal, interpretive scepticism is to be taken seriously, shows that interpretive practices are self-referential, in the sense that whether or not practices are interpretive is in itself an interpretive question. If we grant Dworkin's point, all the following questions should be understood as being interpretive: 'Is the law interpretive?', 'Are interpretations "objectively correct"?', 'Are there right answers to difficult questions?' and the like.

In his essay, 'Why Interpret?' (Chapter 2) Joseph Raz seems to get close to a Dworkinian theory of interpretation when he writes that '[a]n interpretation successfully illuminates the meaning of its object to the degree that it responds to whatever reasons there are for paying attention to its object as a thing of its kind' (p. 23). There appear, however, to be two significant differences between them. First, Raz seems to believe that his (quoted) claim at p. 23 warrants some sort of 'interpretive pluralism' that seems to be incompatible with Dworkin's right answer thesis. Having noticed that different people may have different reasons to understand history, he goes on to say that 'it is plausible to suppose that these reasons will lead to somewhat divergent interpretations of various historical events and processes. Hence pluralism' (p. 24). To establish pluralism, however, it is not enough that different interpretations are possible: one has to claim that they are all equally valid. And Raz indeed adds, '[i]t is possible for them to be good reasons, and they may be valid simultaneously' (p. 24).

Second, Raz differs from Dworkin in terms of the viewpoint from which his argument is formulated. Dworkin's theory of law is, and has always been, formulated from the 'internal, participants' point of view; it tries to grasp the argumentative character of our legal practices by joining that practice and struggling with the issues of soundness and truth participants face' (Dworkin, 1987, p. 9). Raz's is a detached perspective - that is, a perspective characterized by the fact that the observer, who is not a participant, mimics the attitudes of participants to understand their practices as they appear to them.³ This helps to explain the notion of interpretive pluralism defended by Raz in this essay: If I, as a participant, believe that history is about 'predicting the future' (one of the possible reasons for historical interest in Raz's example at p. 24), I must also believe that those who think that history is about 'understanding God's message to man' are mistaken. But I might be observing an argument between two people holding these two views. If this is the case, I might report their disagreement about history as the confirmation that there is more than one plausible way of understanding the value of history.

Turning to legal interpretation, Raz claims that what makes legal interpretation important is that, in law, 'we value... continuity [and] authority, legal development and equity' (p. 25). The key to the question, 'Why interpret?' is provided, however, by the values of continuity and authority. Raz believes that law's immanent claim to be morally justified accords to these two values a pre-eminent role in answering this question because 'to understand the law we must understand the way the law understands itself' (p. 26). This is the reason why the answer to the title question is 'the moral respect we owe to [the law]' (p. 27). The two other values, legal development and equity, come in only at a second stage, when the question is not 'Why interpret?' but 'How should we interpret?'.

Raz's essay belongs with a number of his other pieces on legal reasoning and interpretation, a subject to which he has devoted a series of essays including the one offered in this collection (see, for example, Raz, 1994a; 1998a; 1998b). They naturally invite the question, 'How compatible are Raz's considerations concerning legal reasoning with his own theory of law, as deployed in works such as Practical Reason and Norms (1992), The Morality of Freedom (1986) and "Authority, Law and Morality" (1994b)?'. In another essay also included in this collection, Fernando Atria (Chapter 4) investigates this issue, claiming that they are at odds. The reason for this, in brief, is Raz's characterization of legal rules as exclusionary reasons (Raz, 1992, pp. 142—43). If rules are exclusionary reasons, it seems that, after having understood the meaning of a rule, all that is left for the institutions called to apply it is to act on the basis of that rule, excluding all conflicting considerations. In the terminology of Raz's theory of law, Atria claims, those conflicting considerations would be pre-empted by the exclusionary character of legal rules.

Interpretation and Legal Reasoning: Law and Morality

We have seen that one of the reasons why interpretation became such a fashionable topic for legal theory in the last decades was Dworkin's idea of constructive interpretation, of interpretation being, in a way, constitutive of the practices in which they are formulated and consequently of legal interpretation being, in some way, constitutive of law. But there is another reason that explains the increased interest in the related subjects of interpretation and legal reasoning, and it is that these topics became the battleground in which that very traditional and recurrent problem for legal theory was disputed: that of the existence of some form of necessary relation between law and morality.

In The Concept of Law (1994), Hart tried to provide a theory of law that could do justice to the normativity of law - as previous theories like those of Bentham and Austin had...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Acknowledgements
• Series Preface
• Introduction
• Name Index