Abstract
The chapter adds a further, and, to the present purpose, final, link, in favour of a construction conception of legal meaning and interpretive realism. It presents a five-steps argument. The first step lays down a conceptual framework. The second step provides a revisited account of three theories of legal interpretation—realism (non-cognitivism) and two varieties of formalism (integral and limited cognitivism)—putting forth a few criticisms of the latter. The third step concerns pragmatic formalism, the sophisticated version of limited cognitivism Andrei Marmor defends by resorting to the philosophy of language, and, particularly, to a Gricean, semantics-geared, communication model, pragmatic outlook. The fourth step sets out a critique of pragmatic formalism from the standpoint of pragmatic realism. The fifth, and final, step outlines the proposal side of pragmatic realism, as a pragmatic theory of judicial interpretation.
In sum, the child is (1) a wishful thinker who, (2) in the interest of his desire for harmony, chancelessness, security and certainty builds for himself an over-simplified, over-unified, novelty-less world, heedless of the lack of correspondence of this construction with the world of actual experience, and (3) who is aided in contriving this world by his implicit belief in the magic efficacy of words
—J. Frank (1930)
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Notes
- 1.
- 2.
Barberis (2014), pp. 196–204, claims that realism and the so-called mixed theory—in my view, a variety of cognitivism that I will consider in a moment—would both provide correct answers, since they would aim at different questions. The mixed theory would provide a true answer to the question: “How is law being in fact applied by judges?” It would be concerned, accordingly, with so-called “concrete interpretation”. Contrariwise, realism would provide a true answer to the different question: “How is law being in fact interpreted by jurists and judges?” It would be concerned, consequently, with the interpretation of legal texts apart from their application to individual cases, i.e., with so-called “abstract interpretation”. I suspect, however, that the presumed way out suggested by Barberis depends on a confusion about the notion of “concrete interpretation”, as I shall suggest in the following footnote.
- 3.
See Chap. 2, Sect. 2.2.1.1, Chap. 3, Sect. 3.6, Chap. 4, Sects. 4.2.2, 4.3, and Chap. 5, Sects. 5.2 and 5.4, above. Some authors—Guastini (2011b), pp. 138–140; Barberis (2014)—draw a distinction between abstract interpretation (interpretation in abstracto, “text-oriented interpretation”) and concrete interpretation (“interpretation in concreto”, “fact-oriented interpretation”). Abstract interpretation amounts (in my terminology) to translating a legal provision into an explicit general norm, without paying attention to the application of the norm to individual cases, while paying attention, instead, to overcoming ambiguity problems: that is to say, problems arising from the capability of legal provisions to be translated into a set of alternative (abstract) explicit norms. Concrete interpretation is concerned, contrariwise, with the qualification of individual cases according to previously identified abstract general norms; it focuses on the reference (denotation, extension, Bedeutung) of the descriptive expressions featuring in the general norms; it is meant to overcome problems of vagueness or open texture, if any, of the concepts to be used for qualifying cases. I think the notion of concrete interpretation, as it is usually defined, suffers from an ambiguity that must be brought to the fore, in order to get a clearer, and finer, conceptual apparatus. Indeed it seems worthwhile distinguishing two notions of concrete interpretation. According to the first notion, concrete interpretation is a part of the activity of translating a legal provision into a general norm. This I shall call concrete-interpretation-as-translation. According to the second notion, contrariwise, concrete interpretation amounts to qualifying a certain individual fact in terms of a previously identified general norm. This I shall call concrete-interpretation-as-qualification. The output of concrete-interpretation-as-qualification is a qualification sentence: like, for instance, “John Smith’s entering the park on roller-skates is—has the value of, amounts to, counts as—entering the park with a vehicle”. On the contrary, the outcome of concrete-interpretation-as-translation is a norm, the logical form of which incorporates a parenthetic, denotative, definition of the relevant qualifying expression: like, for instance, “No vehicles (i.e., automobiles, motorcycles, bicycles, or roller-skates) are allowed into the park”. In a well-designed judicial opinion, the outcome of concrete-interpretation-as-qualification logically depends on the outcome of a corresponding concrete-interpretation-as-translation. To be sure, the judicial process of interpretation-as-translation, broadly conceived, usually has its starting point in the description of an individual case (“John Smith entered the city park on roller-skates”) and in a legal issue (a question of law) arising out of it (“Did John Smith’s behaviour violate the Mayor’s ordinance ‘No vehicles into the city park’?”). The two notions of concrete-interpretation are precisely useful to emphasize this central aspect of adjudication.
- 4.
- 5.
From the standpoint of judicial interpretation and integration, the law can in fact be considered as a rhetorical normative system. As a system, to wit, that consists, at any given time, of the totality of the rhetorical consequences of a given set of legal provisions. On this notion, see Chap. 2, Sect. 2.3.3.2, above. In current legal theory, the scholars of the Alicante School also emphasize the argumentative dimension of interpretation. See e.g. Atienza (2013) and Lifante Vidal (2018a). They claim, however, the “argumentative view” they defend to be a third way between interpretive formalism and interpretive realism. This is so because, according to the argumentative view, interpretation always involves both acts of knowledge and acts of will, and this would show any clear-cut distinction between knowing and deciding to be unsound. A few comments are in order, though in passing. First, acts of knowledge and acts of will are logically and psychologically distinct. Furthermore, as I have argued (see e.g. Chaps. 3 and 4 above), acts of knowledge occur within a previously selected interpretive code. Therefore, the argumentative view is really no third way between formalism and realism, but, if anything, the Alicante Scholars notwithstanding, just a piece of refined realism.
- 6.
In a posthumous essay, Herbert Hart, after asserting that the exercise of “discretion occupies an intermediate place between choices dictated by purely personal and momentary whim and those which are made to give effect to clear methods of reaching clear aims or to conform to rules whose application in the particular case is obvious”, emphasizes that every discretional decision always consists in the making of a “leap”, for it can never be supported by conclusive reasons: “phrases often used to describe the exercise of discretion, such as “intuition” [and] “recognition of an implicit guiding purpose,” may encourage the illusion that we never reach the point where we have to reconcile conflicting values or choose between them without some more ultimate principle to guide us. I think the suggestion that we never reach the “leap” is just as wrong as a description of discretion as a mere arbitrary choice would be. It seems to me clear that just because there is a point at which we can no longer be guided by principles and at the best can only ask for the confirmation of our judgment by persons who have submitted themselves to a similar discipline before deciding, that we have in discretion the sphere where arguments in favour of one decision or another may be rational without being conclusive”: Hart (1956), pp. 658, 665; see also Hart (1961), “Postscript”, 273–276. As it is well known, Ronald Dworkin singles out “weak” from “strong” discretion. The former obtains whenever an official’s decision depends on a “use of judgment” that is “controlled by a standard furnished” by a particular authority: for instance, a sergeant is ordered by the lieutenant to “take his five most experienced men on patrol”. The latter obtains whenever an official’s decision is not “controlled by a standard furnished” by a particular authority, but must nonetheless keep within the limits set by the general standards of “rationality, fairness, and effectiveness”: for instance, a sergeant is simply ordered to “take five men on patrol” (Dworkin 1977, pp. 31–33). Clearly, weak discretion and strong discretion differ not by quality, but, if at all, only by quantity: strong discretion obtains whenever the decision-makers (are assumed to) act under weaker constraints. Both notions can be captured by Hart’s notion. On discretion in law, see also: Lifante Vidal (1989); Lifante Vidal (2018b), pp. 81–130; Ruiz Manero (1990), pp. 181–198; Iglesias Vila (1999), Laporta (2007), pp. 207–208 (“When the law is indeterminate, when its sentences are defeasible, when cases are hard cases, it shows up in front of us the riddle of judicial discretion”).
- 7.
- 8.
Suppose, for instance, that the following situation occurs: (i) the interpretive code contains just one translation rule, prescribing to interpret statutory provisions “according to the original legislative intent as it can be gathered out of travaux préparatoires”; and (ii) competing reasonable interpretations are available of what the original legislative intent was, each one pointing to a different way of translating the legal provision at hand. In that case, following the interpretive code’s default rule, the judge will exercise applicative discretion in view either of selecting what, all-things-considered, is to be taken as the governing legislative intent, or of deciding for a meaning dependent on some other interpretive resource.
- 9.
Are situations of interpretive discretion judge-dependent or judge-independent? For the reasons that will appear in the following, I am inclined to think that they depend on context, which, in turn, is neither always, nor wholly, waterproof to judicial beliefs, preferences, attitudes and expectations.
- 10.
Sometimes two varieties of realism are singled out, according to the role they ascribe to interpretation in the determination of the meaning of legal provisions. Radical realism claims that there is really no meaning before interpretation: interpretation creates the meaning of legal provisions. Contrariwise, moderate realism claims that legal provisions are always open to a plurality of meanings. There are meanings before interpretation; interpretation, however, necessarily consists in deciding, for any case at hand, which is the (all-things-considered) correct one. See Guastini (2011b), pp. 150, 156–159; Troper (2001), pp. 69–84. The two varieties dissent, apparently, on the notion of “interpretation” they endorse. According to radical realism, whatever the interpreter decides to be the meaning of a legal provision is the meaning of that legal provision, even though it falls outside of the frame of methodologically possible interpretations of the provision. Contrariwise, according to moderate realism, whatever the interpreter decides to be the meaning of a legal provision is the meaning of that legal provision, if, but only if, it falls inside of the frame of methodologically possible interpretations of the provision. On frames of interpretations see above, at Chap. 5, Sect. 5.2.
- 11.
See, for instance, Carrió (1965), part II; Hart (1977); Diciotti (2003), p. 5 footnote 2; Guastini (2010), p. 121 ff.; Chiassoni (2011), ch. II. I have presented the basic ideas of the mixed theory, as an instance of semantic formalism or semantic quasi-cognitivism, in Chap. 4, Sect. 4.2.1, and, in the two varieties of the word-meaning and sentence-meaning theories, in Chap. 3, Sect. 3.2, above.
- 12.
A staunch representative of integral cognitivism is apparently the German jurist Carl Friedrich von Savigny, the founder of the Historical School. For a recent account of his theory of legal interpretation see, e.g., Chiassoni (2016c), ch. IV, § 4.
- 13.
Legislatures can, and do in fact, dictate provisions concerning the interpretation of provisions. Such provisions, however, are not self-interpreting: no sentence in a natural language has such a portentous virtue. Accordingly, there must be a code that, by its very content, is (perceived and acted upon as) endowed with intrinsic and strict normativity. Such a code, of course, can be read by interpreters into certain legal provisions: can be presented as their legally correct meaning content.
- 14.
A more complicated version of the argument would take into account the possibility of there being, in relation to any legal order, a (different) objective code like that for each sector of positive law (constitutional law, private law, administrative law, criminal law, etc.). This complication would not alter the gist of the argument.
- 15.
Consider, for instance, the literal meaning rule as it is usually found in juristic textbooks and judicial opinions (“Interpret the legal provisions according to their literal meaning”). Does it instruct to take into account the literal meaning at the time the legal provision was enacted, or, rather, the literal meaning at the time of its application? This is something the rule, as usually understood in our legal cultures, leaves to the interpreters to decide.
- 16.
- 17.
An example from history may perhaps help. The French jurists of the so-called Exegetical School apparently shared the same principles, which they regarded as evident, about the proper way of interpreting the Civil Code. These were the principle of “respect for the legislature” and the principle of “primacy of the text”. These principles represented the core of the “objective” interpretive code considered as absolutely binding in French nineteenth century legal culture. Nonetheless, the two principles, due to their eminent indeterminacy, formed the basis for different, more specific, codes, adopted by individual interpreters. I provide a survey of the interpretive code(s) of the Exegetical School in Chiassoni (2016d), pp. 565–581. Similar considerations hold for those cultures where principles like “literal interpretation and legislative intent”, “systemic interpretation”, “constitution-oriented interpretation”, “respect for the Constitution”, etc., are paramount.
- 18.
- 19.
- 20.
The “communication model” resorted to by pragmatic formalism is a pragmatic model of linguistic communication, the original elaboration thereof is due Paul H. Grice, which purports to supplement and improve the semantic, “code model” of linguistic communication, used by John Locke and Ferdinand de Saussure, which reduces the communication content of speech acts to the conventional, explicit meaning of the uttered sentences. See, e.g., Korta and Perry (2015), § 3.
- 21.
Marmor (2014), p. 1 ff.
- 22.
Marmor explains the idea of “reasonable uptake”, which corresponds roughly to what in previous essays qualified as “understanding”, in the following terms: “the subjective intentions of the speaker are only partly constitutive of assertive content; speakers can sometimes fail to communicate all that they had intended to. Therefore, the content that is said or asserted by a speech act partly depends on its reasonable uptake. Assertive content, on this view (that I share), must be defined objectively as the kind of content that a reasonable hearer, with full knowledge of the contextual background of the speech, would understand the speaker to have intended to convey, given what the speaker expressed, the relevant contextual knowledge, and the relevant conversational norms that apply” (Marmor 2014, p. 19).
- 23.
Marmor (2011a), p. 142: “Our ability to understand each other in a communicative context depends on a shared, at least tacit, understanding about the kind of conversation we are engaged in, and the norms governing it. Understandings of this kind are, of course, subject to occasional misunderstandings or deviations of various kinds, in which case, typically some aspect of the communication fails. None of this, however, is a matter of interpretation. From the fact that there is some normative framework governing the kind of conversation one is engaged in, it does not follow that a hearer’s grasp of the communicative content hangs in the air, as it were, until she comes up with an interpretation of the relevant maxims. Maxims are typically common knowledge between speaker and hearer, in no need of interpretation”; 144–145: “Mostly, just like in an ordinary conversation, we hear (or read, actually) what the legal directive says and thereby understand what it requires. In some cases, it is unclear what the law says, and interpretation is called for”.
- 24.
- 25.
- 26.
Marmor (2014), pp. 22–27.
- 27.
Marmor (2014), p. 22 ff., 28 ff., 33–34, 108. In other parts of the book, pragmatic understanding, as part of the reasonable uptake of the full communicative content of a speech act, also concerns the identification of the implicated content of the communication, beyond the assertive content. See, e.g., Marmor (2014), p. 49 ff. Marmor (2011a, p. 141) makes clear that: “every communicative interaction is guided by some norms that govern the kind of contribution to the conversation that speakers are supposed to make. Without such a normative framework, typically shared by the relevant conversational parties, communication would not be possible”.
- 28.
- 29.
- 30.
- 31.
Marmor (2011a), p. 137; see also 9–10: against “Dworkin’s argument that we can never grasp what the law says without interpretation”, so that, given the partly evaluative nature of it, “understanding what the law requires is necessarily dependent on some evaluative considerations”, Marmor wishes to argue that Dworkin’s conception “of what it takes to understand a legal directive is based on a misunderstanding of language and linguistic communication […] when linguistic considerations are taken into account in the appropriate ways, we will realize that interpretation becomes the exception, not the standard form of understanding what the law says”; Marmor (2014), pp. 107–109.
- 32.
See, e.g., Marmor (2014), p. 74.
- 33.
- 34.
- 35.
Marmor (2011a), pp. 107–108, 138: “When we conduct an ordinary conversation, it is not our experience that every utterance by a speaker is somehow followed by a pause, when the hearer thinks about ways to interpret what has been said. Under the normal circumstance of a conversation, we just hear the utterances and thereby understand what has been said”. See also Marmor (2014), pp. 107–109.
- 36.
Marmor (2011a), p. 136: “Philosophy of language is central to an understanding of law for a different reason. Law, as we have seen in previous chapters, consists of authoritative directives. The content of the law is tantamount to the content that is communicated by various legal authorities. Authorities communicate, of course, in a natural language. Therefore, an understanding of how linguistic communication works and, in particular, how much is actually determined by various semantic and pragmatic aspects of language, is central to an understanding of what law is”; Marmor (2014), p. 1: “Language is to lawyers what a piano is to the pianist: the tool of trade”.
- 37.
- 38.
Marmor (2011a), p. 141.
- 39.
Marmor (2011b), pp. 83–104; Marmor (2014), pp. 35–36, 43–59; “The essential feature of strategic speech – as I will use the term here – is that the speaker strives to gain some advantage by implicating more (or less) than he would be willing to make explicit […] Hearers can be similarly situated in not being willing to fully acknowledge the uptake of content that goes beyond what is explicitly asserted” (Marmor 2014, pp. 45–59).
- 40.
Following Grice (1989), ordinary conversations are ruled by a “principle of cooperation” (roughly: “Make your contribution to the conversation adequate to the purpose and the stage of the linguistic interaction you are engaged in”) and four related groups of more specific conversational maxims. The maxims of quality require each participant’s contribution to the conversation to be qualitatively adequate: e.g., no statements that are known to be false or without adequate justificatory support are to be made. The maxims of quantity require each participant’s contribution to the conversation to be quantitatively adequate: one must avoid saying more or less than is required by the stage of the conversation. The maxims of relation require each participant’s contribution to the conversation to be relevant in content: one must avoid saying things that are not pertinent in relation to the topic of the on-going conversation. The maxims of manners require each participant’s contribution to the conversation to consist in clear and ordered sentences.
- 41.
The default rule, for instance, may run as follows: “Whenever linguistic rules and the accepted maxims of legal conversation do not make it possible to identify a determinate assertive content for the legal provision at hand, make up the solution that best fits with the overall purpose of law application”. On default interpretive rules, see Chap. 3, Sect. 3.4, above.
- 42.
- 43.
- 44.
On conversational maxims, see footnote 40 above.
- 45.
- 46.
The first and third ideas correspond to the interpretation-as-exception thesis and the refutation of interpretivism thesis: see Sect. 6.3 above.
- 47.
- 48.
The self-delusion of thinking the philosophy of language to be capable of solving momentous problems in legal theory is analysed by Bix (2003).
- 49.
See, e.g., Marmor (2011a), pp. 138–139: “It is a very familiar aspect of natural language that the content communicated by a speaker is often partly determined by certain contextual and normative factors. These contextual and normative determinates of linguistic contents are called the pragmatic aspects of language. In other words, it is a well-recognized fact that semantics and syntax (meaning) are essential vehicles for conveying communicative content, but the content that is actually communicated is often partly determined by various pragmatic factors”.
- 50.
Marmor (2011a), p. 105, italics added.
- 51.
There is indeed a simple test supporting the critique the present argument makes. If we ask why linguistic meaning should have an evident pride of place among interpretive resources, why the literal rule should have an evident pride of place among translation rule, we are likely to get the answer that it is so because the legislature evidently commands respect, and respect for the legislature requires reading legal provisions according to their literal, linguistic meaning. Such an answer, however, clearly depends on a piece of constructive interpretation as to the proper value, sense or point of legislation.
- 52.
Marmor (2011a), p. 143.
- 53.
Marmor (2011a), p. 138.
- 54.
Marmor (2005), p. 97.
- 55.
- 56.
Perhaps, that may be the case with ordinary people, but that’s another story, to be carefully considered.
- 57.
- 58.
- 59.
Marmor (2014), pp. 107–109.
- 60.
Marmor (2014), p. 28.
- 61.
Marmor (2011a), pp. 150–151.
- 62.
See footnote 40, above.
- 63.
Marmor (2008), p. 30.
- 64.
- 65.
- 66.
- 67.
- 68.
- 69.
See Chap. 3, Sects. 3.5 and 3.6, Chap. 4, Sects. 4.2.2 and 4.4, above. For instance, Italian judges in the late 1960s interpreted statutory law following a principle according to which cooperation was to be directed not to the actual, historical, flesh and blood, legislature, but, rather, to the “good legislature”, that is to say, to a legislature that was presumed to make laws that were respectful of formal justice, logical consistency, instrumental rationality, non-redundancy, linguistic determinacy, systemic arrangement, and completeness (see Bobbio 1971, pp. 243–249). Likewise, in a constitutional state, judges often adopt a principle of interpretive cooperation with the Constitution (constitutional law and principles), which may result in adopting a principle of interpretive no-cooperation, or a principle of uncharitable interpretation, towards ordinary, sub-constitutional, legislation.
- 70.
See Chap. 2, Sect. 2.2.1.1, Chap. 3, Sects. 3.4 and 3.6, Chap. 5, Sect. 5.2, above. As you may recall, method rules encompass, in turn, purpose rules, selection rules, procedure rules, preference rules, and default rules. Translation rules, contrariwise, provide instruction for translating legal provisions into explicit norms. They are rules of linguistic, intentional, teleological, authoritative, systemic, and heteronomous interpretation.
- 71.
On selective and applicative interpretive discretion, see Sect. 6.2 above.
- 72.
- 73.
- 74.
- 75.
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Chiassoni, P. (2019). Towards Pragmatic Realism. In: Interpretation without Truth. Law and Philosophy Library, vol 128. Springer, Cham. https://doi.org/10.1007/978-3-030-15590-2_6
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