Etica & Politica/ Ethics & Politics, 2006, 1
http://www.units.it/etica/2006_1/SCHIAVELLO.htm
Some
introductory remarks on legal interpretation and legal reasoning. A
philosophical approach
Dipartimento
di studi su politica, diritto e società “Gaetano Mosca”
This issue of Etica
& Politica / Ethics & Politics is devoted to the topic of legal
interpretation and legal reasoning. We believe that the legal field constitutes
a privileged perspective from which to observe interpretative practice. As
Stephen Toulmin points out, “lawsuits are just a special kind of rational
dispute, for which the procedures and rules of argument have hardened into
institutions.” (1) This point is also
stressed by Neil MacCormick, who observes that legal interpretation “is perhaps
a uniquely public and published form of reasoning, and therefore a resource of
great potential interest to philosophers.” (2)
This very fact, i.e. that
legal interpretation is often public and published, facilitates the
identification of interpretation’s rules and techniques as well as the singling
out of philosophical questions concerning the practice of interpreting. The
papers collected here meet some – the most central – of these questions.
This introduction aims
briefly to show the philosophical relevance of legal interpretation and to
distinguish the main perspectives of legal interpretation in the contemporary
debate.
1. An outline of interpretation in general
“Interpretation” is not a practice concerning only the
law. We can interpret a novel, a painting, a speech, a symphony, human conduct
and many other things. Thus, it is wise to specify the general meaning of the
word ‘interpretation’.
A common definition is the following: ‘to interpret’ means to award a
meaning to an ens (an entity) (like a
novel, a statute and so on) which needs an ascription of meaning. (3) In the words of Michael S. Moore, interpretation “is
the activity we engage in when we are trying to find the meaning of something.”
(4)
Of course, starting from this general definition, we need to distinguish
different kinds of interpretation depending on the domain we are concerned
with. For example, it is obvious that interpreting a political speech is not
exactly the same as interpreting a facial expression. Anyway, before dealing
with the theme we are interested in, that of legal interpretation, and before
introducing the specific characteristics of interpretation in the legal field,
I wish to stress that the word ‘interpretation’, at least in the case of
textual interpretation, is often used in two senses: it means either the
activity of establishing the meaning of some documents, or the result or the
product of this activity; in other words, the meaning itself. So, it is also
common and appropriate to distinguish between interpretation/activity and
interpretation/product. (5)
It is possible to sum up these general observations in three points:
1) there is a concept of
interpretation which underpins all the possible meanings of the term in different domains. (6)
2) Interpretation is always
interpretation of something (a human practice, a novel, a work of art, a
statute and so on); so it is possible to add that ‘interpretation’ identifies a
relationship between three elements: a) the intention of the author of
something (for example, what Shakespeare intended to communicate writing Hamlet); b) the meaning of the object of
the interpretation quite apart from the intention of its author (what Hamlet communicates to us apart from
Shakespeare’s own intentions); c) the intention of the interpreter himself (two
different readers of Hamlet could
find partly different meanings in it). (7)
3) The word ‘interpretation’ refers both to the act of interpreting and
to the product of interpretation.
2.
Interpretation and law
In the previous paragraph I said that “interpretation
is always interpretation of something.” In the present case, it means that,
before speaking of legal interpretation, we should determine what the object of
this particular kind of interpretation is; in other words, we should determine
what the law is.
As can easily be guessed, there is not a univocal answer to this
question. As Hart observes “few questions concerning human society have been
asked with such persistence and answered by serious thinkers in so many
diverse, strange, and even paradoxical ways as the question ‘What is law?’” (8)
Running the risk of oversimplifying, we can assume – for the purposes of
these introductory remarks only – that the law is a system of norms (rules or
principles). (9) Consequently, legal
interpretation is, chiefly, interpretation of norms. (10)
But what is a norm? It is, first of all, a linguistic formulation. More
precisely, it is, more often than not (at least, in the contemporary western
legal systems), a written linguistic formulation. Thus the main object of legal
interpretation is language. To specify what a language is, it is useful to
distinguish between signs and symbols. A sign is something natural; a symbol is
an artificial product of human beings. For example, the ground being damp is a
sign of a recent rainstorm, while the red traffic light is a symbol that you
have to stop. Symbols are conventional: we (i.e. all the members of a
linguistic community) decide their meaning. The fact that we have to stop when
the light is red is just a convention. As Alf Ross, the most prominent among
Scandinavian legal realists, points out, a language is the most highly
developed, most efficacious and most complex system of symbols. (11)
Thus some difficulties (perhaps the main ones) in legal interpretation
are linked to some characteristics peculiar to language, in particular,
vagueness and ambiguity. (12)
A word is vague if its reference is indeterminate or, more exactly,
under-determinate. (13) In
the case of vagueness, there is a central core in which the word clearly
applies, and an area of uncertainty concerning the possible uses of the word in
particular conditions. Herbert Hart gives the following example. There is a
legal norm saying: “No vehicles in the park”; clearly, this norm forbids the
entrance of cars in the park, but does it also forbid the entrance of bicycles,
people skating, kiddy cars and ambulances? This is not clear, just because the
term ‘vehicle’ is a vague one. Another classical example of a vague term is
‘bald’. A person without hair is certainly bald, but there are cases in which
it is not clear if a person is bald or not.
A word is ambiguous when it has more than one
referent. For example, the word ‘bank’ refers either to the place where we
deposit our money, or to the edge of a river.
Of course, many potential interpretative problems
linked to ambiguity can easily be worked out by looking at words in their
context (for example, in the sentence “today a robber held up the Bank of
Italy”, it is clear that the meaning of the word ‘bank’ is the first one and
not the second). But when ambiguity is something more complex than mere
homonymy, looking at the context may not suffice. Let us think, for example, of
the different meanings of the word ‘interpretation’ itself that we have already
noticed. ‘Interpretation’ means either the activity of interpreting or the
product of this activity and these meanings are so closely linked that looking
at the context may not be sufficient for choosing the first or the second one.
Thus there are interpretative problems that are not
easy to solve. With regard to the legal field, it is worth noticing at least
the major presence of vague terms; one thinks of words or expressions like
‘reasonable’, ‘the common sense of decency’, ‘good faith’ and so on.
In this connection, it is possible to say that the object of legal
interpretation is not so different from the object of literary interpretation.
In the final analysis, Hamlet and a
legal statute are both made up of words and propositions.
On the other hand, in spite of the fact that many legal theorists, for
example Ronald Dworkin, emphasise the similarities among legal and literary
interpretation, there are also important differences. The main one is linked to
the very function of the law. The law fulfils a practical function, that of
regulating social life, by prescribing or prohibiting given conducts. For that
reason, legal interpretation is not an end in itself, but it is instrumental to
the application of a general norm to a concrete case. It means that legal
interpreters, in particular judges, have to choose just one of the many
possible interpretations of a norm or a statute. This is not necessarily the
case in literary interpretation. For example, a literary critic is not forced
to say that the best interpretation of Hamlet
is that of considering it as a political tragedy or a tragedy about death; he
is allowed to accept both interpretations of the tragedy. On the contrary, a
judge cannot say that that the word ‘vehicles’ in the previous example can be
interpreted as referring only to cars or as referring to cars, bicycles, people
skating, kiddie cars and ambulances, but has to make a choice between these
rival interpretations.
To sum up:
1)
the object of legal
interpretation is, by definition, the law;
2)
it is possible to describe the
law as a system of rules or norms;
3)
norms are written linguistic
expressions; so,
4)
language is the object either
of legal interpretation or of literary interpretation;
5)
this means that these two
kinds of interpretation share some linguistic problems, like vagueness and
ambiguity of words;
6)
on the other hand, the legal
interpreter, unlike the literary interpreter, is forced to choose among the
various possible interpretations.
3. Interpretative formalism vs.
interpretative anti-formalism
On the basis of previous clarifications, it is possible to distinguish
two conflicting perspectives in legal interpretation: formalism and
anti-formalism. Quoting again from Hart’s work, “Formalism and rule-scepticism
are the Scylla and Charybdis of juristic theory; they are great exaggerations,
salutary where they correct each other, and the truth lies between them.” (14)
Interpretative formalism was popular in the 19th century,
especially in
I said earlier that interpretation identifies a relationship between
three elements: the intention of the author of a text, the meaning of the text
itself, quite apart from the intention of its author and, finally, the
intention of the interpreter. Interpretative formalism reduces interpretation
to the first two of these elements. The task of the interpreter is a mechanical
one: he should only correctly understand the meaning of a legal text. In other
words, according to interpretative formalism, the meaning of a norm is not the
product of interpretation, but comes before the interpretation itself. The
interpreter merely repeats the legislator’s will. According to formalism, the
model of legal reasoning is that of deductive logic. In logic, the conclusion
is already implied by the premises. The best-known example is syllogism. For
example, if we say “All human beings are mortal” (major premise); “Socrates is
a human being” (minor premise), we must conclude that Socrates is mortal. But
that conclusion adds nothing to the premises; it only renders explicit
information already implicitly included in the premises. The logic of legal
reasoning could be formalized in this way: we have a major premise like “if p,
then q” (for example, if someone does not stop his car when the light is red,
then he must pay a fine), then we have the minor premise “is the case that p”
(that is, someone actually does not stop his car when the light is red), so the
conclusion will be “q” (that is, X must pay a fine). The problem, which
formalism underestimates, is that it is the interpreter, in the last analysis,
that sets out the correct premises.
Indeed, according to formalism, gaps and antinomies in the law are only
apparent, because the law itself offers criteria, like, for example, analogy,
for going beyond these difficulties. Moreover, interpretative formalism
believes that vagueness and ambiguity are vices that are completely absent in
the law. In this way, formalism tries to preserve the well-known ideal of
certainty of the law. If the law comes before interpretation, then everybody
can know in advance what is required by the law.
By contrast, interpretative anti-formalism maintains the thesis that
there are no constraints at all on judges when they decide a judicial case.
This theory presupposes a sort of interpretative scepticism which could well be
summarized by the following dialogue: “– ‘I don’t know what you mean by
‘glory’,”’
Thus interpretative anti-formalism in the legal field presupposes a kind
of rules and/or fact scepticism: rules are too general, vague and ambiguous for
clearly directing the task of judging. Facts which judges have to subsume under
a norm are elusive, so they can discretionarily establish every time whether a
specific fact can be considered proven. The anti-formalists treat the ideal of
“doing justice according to law” as a mere fiction and reduce the law to what
judges do in the courts.
Jerome Frank, an anti-formalist American judge of the first half of the
last century, expressed the most radical and intriguing form of interpretative
scepticism in his book Law and the Modern
Mind “in which the belief that there could be legal rules binding on judges
and applied by them, not made by them, in concrete cases is stigmatized as an
immature form of fetishism or father fixation calling for psychoanalytical
therapy.” (17) Frank expresses his claim without circumlocution:
“whenever a judge decides a case he is making law: the law of that case, not
the law of future cases not yet before him. What the judge does and what he
says may somewhat influence what other judges will do or say in other cases.
But what the other judges decide in those other cases, as a result of whatever
influences, will be the law in those other cases. The law of any case is what the judge decides”. (18)
Thus judges decide judicial cases on the ground of their own idea of
justice, their mood, their favour for one or for the other of the parties
involved in litigation and so on. Only after having decided in this way do
judges find some legal justification (like a rule, a judicial precedent, a
legal principle) to back up their decisions. In a nutshell, anti-formalism,
excluding the intention of the author of the text and the meaning of the text
itself, reduces interpretation to the third element, that is to say to the
intention of the interpreter.
Of course, there are also less radical versions of anti-formalism. The
best-known is perhaps that of Alf Ross. According to Ross, the work of judging
is the outcome of a parallelogram of forces whose main vectors are formal legal
conscience and material legal conscience. In brief, a legal decision is a
combination of a cognitive interpretation of the law and of an evaluative
attitude of judges. Thus norms alone cannot determine a legal decision, though
they contribute to it. They can only help us to predict what the judges will do
in deciding a case. (19)
4.
The “interpretative turn”
Contemporary legal thought has developed the awareness that legal
practice is essentially an interpretative practice. In brief, this
interpretative turn (20) means that it is no longer possible to sharply
distinguish a theory on the nature of law from a theory on legal
interpretation. This intuition is very well expressed by Neil MacCormick: “a
satisfactory theory of legal reasoning indeed requires and is required by a
satisfactory theory of law.” (21)
Moreover, the most interesting contemporary theories of legal
interpretation, intentionally or unintentionally following Hart’s lesson, try
to find a path between formalism and anti-formalism.
In this section, I will try to elucidate both these characteristics of
contemporary theories of legal interpretation by briefly showing Ronald Dworkin’s
conception of legal interpretation. Dworkin’s thought, indeed, is probably the
most celebrated expression of this mainstream of thinking.
In Law’s Empire, Dworkin’s
most important book on jurisprudence, it is possible to find a kind of
manifesto supporting the interpretative turn: “I shall argue that legal
practice is an exercise in interpretation not only when lawyers interpret
particular documents or statutes but generally. Law so conceived is deeply and
thoroughly political. Lawyers and judges cannot avoid politics in the broad
sense of political theory. But law is not a matter of partisan politics, and a
critique of law that does not understand the difference will provide poor understanding
and even poorer guidance.” (22)
With this clear idea in mind, Dworkin distinguishes three different
conceptions of law and of legal interpretation: 1) conventionalism, 2) legal
pragmatism and his own conception 3) law
as integrity.
According to conventionalism (to which Dworkin erroneously assimilates
Hart’s legal theory), “The law is the law. It is not what the judges think it
is, but what it really is. Their job is to apply it, not to change it to fit
their own ethics or politics.”(23) Moreover, when judges face cases not expressly
covered by existing statutes, they “must
decide such novel cases as best they can, but by hypothesis no party has any
right to win flowing from past collective decisions - no party has a legal
right to win - because the only rights of that character are those established
by convention. So the decision a judge must make in hard cases is discretionary
in this strong sense: it is left open by the correct understanding of past
decisions.” (24)
In conclusion, Dworkin considers conventionalism a revisited form of
interpretative formalism. It distinguishes two different interpretative
practices for easy and hard cases respectively. In easy cases, judges have to
apply the law in a mechanical way. In hard ones, there are no constraints at
all on judges, so they do not apply pre-existing law, but are completely free
to decide what they prefer. In this latter case, judges act as legislators,
exercising strong discretion.
Pragmatism is a revised form of an anti-formalist theory. Pragmatists
are not interested in legal tradition at all and, moreover, they think it would
be possible to go beyond tradition in the name of a positive change for
society. On pragmatism Dworkin adds: “The pragmatist takes a sceptical attitude
toward the assumption we are assuming is embodied in the concept of law: he
denies that past political decisions in themselves provide any justification
for either using or withholding the state's coercive power. He finds the necessary
justification for coercion in the justice or efficiency or some other
contemporary virtue of the coercive decision itself, as and when it is made by
judges, and he adds that consistency with any past legislative or judicial
decision does not in principle contribute to the justice or virtue of any
present one. If judges are guided by this advice, he believes, then unless they
make great mistakes, the coercion they direct will make the community's future
brighter, liberated from the dead hand of the past and the fetish of
consistency for its own sake.” (25)
Dworkin strongly contrasts this way of thinking, arguing that
“civilization is impossible unless the decisions of some well-defined person or
group are accepted by everyone as setting public standards that will be
enforced if necessary through the police power. (...) If judges were seen to
pick and choose among legislation, enforcing only those statutes they approved,
this would defeat the pragmatist’s goal because it would make things not better
but much worse.” (26)
In conclusion, by definition interpretation does not
have a big role to play in a sceptical approach to law; the fact is that the
task of judges is not to find a solution
which the law permits, but to create the
best solution for the case in hand. In other words, pragmatism is built on the
political conviction that only by treating each case in an individual way is it
possible to ensure justice and/or efficiency.
Introducing the concept of integrity,
Dworkin aims to build a theory of law placed in between conventionalism and
pragmatism. Dworkin’s ambition is to ensure an important place either for the
requirement of fidelity to the law promulgated, or for the needs of justice. According
to Dworkin, the interpretation of the law constitutes, in a way that is not
trivial, the law. In “Is There Really No Right Answer in Hard Cases?”, an essay
collected in A Matter of Principle,
Dworkin shows very clearly his thought about the relations between law and
interpretation: “It is open for a lawyer to argue, as I have myself, that the
impact of the statute on the law is determined by asking which interpretation,
of the different interpretations admitted by abstract meaning of the term, best
advances the set of principles and policies that provides the best political
justification for the statute at the time it was passed. Or it is open to him
to argue the much more conservative position that if a statute was vague it
must be taken to have changed the legal status quo ante only the extent
justified by the indisputable core of the language employed.” (27)
The challenge of the interpretative turn in legal
interpretation is that of finding a suitable balance between the demands of
certainty and those of flexibility.
Law as integrity is an attempt to face this challenge: “Law as integrity
denies that statements of law are either the backward-looking factual reports
of conventionalism or the forward-looking instrumental programs of legal pragmatism.
It insists that legal claims are interpretative judgements and therefore
combine backward- and forward-looking elements; they interpret contemporary
legal practice seen as an unfolding political narrative. So law as integrity
rejects as unhelpful the ancient question whether judges find or invent law; we
understand legal reasoning, it suggests, only by seeing the sense in which they
do both and neither.” (28)
The risk is the sceptical drift implied by the challenge of the
interpretative turn, as is clearly pointed out by Michel Rosenfeld in the
concluding remarks of Just
Interpretations: “In sum, all intersubjective meaning is derived by
interpretation, and law, ethics, and politics…are at bottom but interpretation.
At the end, the best we can do is to aim at a justice that depends on
interpretation. That may not seem to be much, but it is everything.” (29)
References
(1) S. Toulmin, The Uses of Argument,
(2) N. MacCormick, Legal Reasoning and Legal Theory (1978),
Clarendon Press,
(3)
See, for example, G. Tarello, L’interpretazione della legge, Giuffrè,
Milano, 1980, pp. 1-5.
(4) M. S. Moore, Interpreting Interpretation, in A. Marmor (ed. by), Law and Interpretation. Essays in Legal
Philosophy, Clarendon Press,
(5)
See G. Tarello, L’interpretazione
della legge, ibidem.
(6) On the concept/conception distinction, see H. L. A. Hart, The
Concept of Law, Clarendon Press,
(7)
See U. Eco, I limiti dell’interpretazione, Bompiani, Milano, 1990, pp. 15-38.
(8) H. L. A. Hart, The Concept of Law, p. 1.
(9) On the distinction between rules and principles, see R. Dworkin, The Model of Rules I (1967), now collected in Id., Taking Rights Seriously,
Duckworth,
(10) It is rather common – at least for the Italian and Spanish speakers
who are scholars of legal philosophy – to distinguish between ‘disposition’ and
‘norm’. ‘Disposition’ indicates an utterance, legislative in a broad sense.
‘Norm’ indicates the meaning of this utterance. In other words, legislative
dispositions are the object of legal interpretation, while norms are the output
of the interpreting activity in the legal field. In this introductory note I do
not take this distinction into account. On this distinction, introduced by Giovanni Tarello,
see, for example, R. Guastini, Teoria e dogmatica delle fonti, Giuffrè,
Milano, 1998, pp. 15-20.
(11) See A. Ross, On Law and Justice, Steven & Sons
Ltd,
(12) This thesis is supported for example by H. L. A. Hart, The Concept of Law, chapter VII. Against the centrality of
linguistic problems in legal interpretation see L. L. Fuller, Positivism and Fidelity to Law, “Harvard
Law Review”, 1958, 71, pp. 630-672 and also, more recently, B. Bix, H. L. A. Hart and the “Open Texture”of Language, “Law and
Philosophy”, 10, 1991, pp. 51-72.
(13) On the distinction between indeterminacy and under-determinacy see L. B. Solum, Indeterminacy, in D. Patterson
(ed. by), A Companion to Philosophy of
Law and Legal Theory, Blackwell, Oxford, 1996, pp. 488-502.
(14) H. L. A. Hart, The Concept of Law, p. 147.
(15) Ch. Montesquieu, De l’esprit des lois (1748), in Oeuvres completes, book XI, chapter VI,
Gallimard, Paris, 1951. Almost
the same claim can be found in Beccaria’s book Dei delitti e delle pene: “In ogni delitto si deve far dal Giudice
un sillogismo perfetto; la maggiore dev’essere
(16) Ch. Montesquieu,
De l’esprit des lois (1748), in Oeuvres completes, book XI, chapter VI,
Gallimard, Paris, 1951. Almost
the same claim can be found in Beccaria’s book Dei delitti e delle pene: “In ogni delitto si deve far dal Giudice
un sillogismo perfetto; la maggiore dev’essere
(17) H. L. A. Hart, American
Jurisprudence through English Eyes: The Nighmare and the Noble Dream,
“Georgia Law Review”, volume 11, number 5, 1977, pp. 969-989, quotation at p.
974.
(18) J. Frank, Law and the Modern Mind (1930), Anchor
Books Doubleday & C., Inc., Garden City,
(19) See A. Ross, On Law and Justice, chapter IV.
(20) For a more detailed analysis of this feature of contemporary legal
thought see K.
J. Kress, The
Interpretive Turn, “Ethics”, 97, 1987, pp. 834-860.
(21) N. MacCormick, Legal
Reasoning and Legal Theory (1978), p. 258.
(22) R. Dworkin, Law’s Empire, Fontana Paperbacks,
(23) R. Dworkin, Law’s Empire, p. 114.
(24) R. Dworkin, Law’s Empire, p. 115.
(25) R. Dworkin, Law’s Empire, p. 151.
(26) R. Dworkin, Law’s Empire, p. 153.
(27) R. Dworkin, A Matter of
Principle,
(28) R. Dworkin, Law’s Empire, p. 225.
(29) M. Rosenfeld, Just Interpretations. Law between Ethics and
Politics, University of