Abstract
The purpose of this article is primarily to shed some light on the question of what we mean by interpretation, to assess whether or not legal interpretation is a scientific operation and whether or not it is possible to obtain legal knowledge in a scientific manner. For this endeavour, firstly, I will lay out a conceptual framework of law and legal science—a soft normativist model. Secondly, I will outline the basis of my theory of legal interpretation, in which I will argue, among other things, for a broad conception of legal interpretation (even if one may distinguish between noetic and dianoetic interpretations), that its object is composed of legal formulations (linguistic conception); that law is only partly or locally indeterminate, which guarantees a high level of scientificity in the cases of determination; and that interpretation is a norm-guided operation involving language rules and legal interpretative norms. Thirdly, I conclude that legal knowledge can be scientific, especially in cases of legal determinacy—clear cases—that it is also possible to make truth propositions about law and that, accordingly, sometimes there is also legal objectivity.
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Notes
- 1.
See Kelsen (2009), p. 1.
- 2.
See Hansson (2017).
- 3.
See Hart (2012), p. v.
- 4.
This of course means this will be nothing more than a first approach to the subject.
- 5.
As interpretation necessarily involves an adjudicative and discretionary moment—when the interpreter has to choose one meaning over others—the choice would also be a product of the interpreter’s subjective reasons and therefore would have to be considered a ‘legal policy operation’. See Guastini (2014), p. 48.
- 6.
See Pino (2019).
- 7.
In the nineteenth century, echoes were already heard of the idea that jurisprudence is not a science. See von Kirchmann (2015) (the original essay—Die Wertlosigkeit der Jurisprudenz als Wissenschaft—is from 1847).
- 8.
To a significant extent, I shall make use of the excellent synthesis in Lopes (2018), p. 13 ff.
- 9.
Recently, on this aspect, see Burazin et al. (2018).
- 10.
According to it, in every possible legal system there is a conventional rule of recognition that sets out the validity criteria for the system’s norms see Himma (2003), p. 149 ff.
- 11.
- 12.
About the tenets of scientific positivism, see von Wright (1971), p. 4 ff.
- 13.
See Hart (1958), pp. 601 and 608 ff.
- 14.
Theory-building seems to have two functions: (i) ‘to predict the ocurrence of events or the outcomes of experiments, and thus to antecipate new facts’; and (ii) ‘to explain, or to make intelligible facts which have already been recorded’. See von Wright (1971), p. 1. Regarding the definition of science, Pino cautiously uses three criteria: (i) science is a cognitive enterprise, i.e., an enterprise devoted to producing knowledge in a particular field of inquiry, and is normally directed at empirical facts, which are in some sense independent from their scientific study; (ii) scientific knowledge is produced through the application of a rigorous and reliable method at least within the relevant scientific community; (iii) such a cognitive enterprise is not necessarily value-free: it may include references to values, as long as they are ‘epistemological’ (simplicity, coherence…), and not ‘substantive’, moral or political. See Pino (2019).
- 15.
In the same sense, see Duarte (2019).
- 16.
See Black (1954), p. 13.
- 17.
Analysing these and more possible criteria, see Duarte (2019).
- 18.
See Nino (2018), pp. 318–319.
- 19.
Defending a similar idea, see Duarte (2019: ff).
- 20.
Pino also argues that a cognitive enterprise such as science is not necessarily value-free: it may include values, as long as they are ‘epistemological’ (simplicity, coherence…), and not ‘substantive’, moral or political. The same banal aspect is stated by Dickson: ‘“Descriptive” legal theories are thus not characterised as entirely value-free, but rather as relatively value-free: they obviously involve purely meta-theoretical evaluation, but they do not take those constructing them into the territory of, for example, morally evaluating the law in order to provide an accurate and adequate account of it.’ See Dickson (2001), p. 33.
- 21.
For the distinction between context of discovery and justification, see Reichenback (1951), p. 7.
- 22.
According to Kitcher, at each stage of investigation, the researcher must decide whether previous results warrant further investigation in the same line of research or whether it would be more fruitful to switch to another avenue, even if the overall goal remains constant. These choices are laden with contextual values. See Kitcher (2011).
- 23.
This has an important function for guiding scientific research and for minimizing the impact of values on science [see Reiss and Sprenger (2017)]. In addition, even if context may influence science, contextual values cannot be allowed to prevail over scientific evidence or used as reasons to ignore evidence [see Douglas (2009), p. 108].
- 24.
Usually, scholars adhere to the value-free ideal—and much less to a value-neutrality thesis—but there are also some who argue for a value-laden thesis, according to which scientists cannot gather evidence and assess/accept theories without making contextual value judgements. See Reiss and Sprenger (2017).
- 25.
In a developed way, see Duarte (2019).
- 26.
In a developed way, see Duarte (2019).
- 27.
- 28.
At least for now, there is a general agreement that certainty of knowledge about the natural world is unattainable—even Newton was wrong! And this is why philosophers such as Rorty argue that all truth is contingent [see Rorty (1989), p. 3 ff].
- 29.
And the legal expert cannot manipulate legal outcomes based on dogmas, but must follow the ‘legal truth’ wherever it leads.
- 30.
Naturally, within legal science, there are also specific subsets according to different criteria, such as specific discipline (civil law, public law, labour law, etc.).
- 31.
- 32.
The very concept of legal dogmatics is ambiguous: for example, according to Aarnio, it is the ‘study of the content of the legal rules (norms) and of the systematic order of those. The common terms referring to these tasks are “interpretation” and “systematization”’, concept which is much closer to the legal science one I adopt than the concept of legal dogmatics. See Aarnio (1987), p. 12.
- 33.
I found these useful definitions in Nuñez Vaquero (2013), pp. 59–60. I think it is important to make two notes on the concepts of legal science and legal dogmatics. On the one hand, it should be noted, from a descriptive point of view, that what many (maybe even most) legal scholars do is just ‘dogmatics’. On the other hand, the importance of demarcating legal science from legal dogmatics, as Pino himself recognizes, regards the fact that science enjoys social legitimacy and high legitimacy [see Pino (2019)] and, therefore, it is a concept of ‘favourable emotional load’ [see Nino (2018), p. 318]. This shows that scholars may want to use the science label precisely to pledge their own political or moral views, as if they were technical.
- 34.
Alf Ross also considered that legal science should be a descriptive, non-evaluative and axiologically neutral legal discourse; however, he focused on the ‘interpretation in force’. See Ross (1958), chapter iv.
- 35.
Even if from different perspectives: interpretation starts with texts to achieve norms, but application, resolution of antinomies and filling gaps works directly with norms. I refer generally to norms as a category that includes both rules and principles.
- 36.
- 37.
Justification of the normativist method may be found in at least two reasons: (i) according to democracy, separation of powers and legal certainty principles, and therefore the legal system itself, all legal operators, such as judges, have to respect the texts and respective norms produced by normative authorities, and normativist legal science seems the best candidate to become a guardian of the sources of law and to ensure that valid law is not modified, especially during the adjudication process; (ii) normativist method finds justification in an idea of rationality because the systematization of the content of law facilitates the identification of gaps, conflicts and redundancies, promoting the wholeness and coherence of the legal system [see Alchourrón and Bulygin (2012), p. 103 ff]. Therefore, the legal systems themselves seem to impose the adoption of this model according with the principles of legal certainty, separation of powers and equality (of course, assuming they contain these principles) [differently, see Nuñez Vaquero (2013), p. 79].
- 38.
See Guastini (1999a), p. 263 ff.
- 39.
On legal theory being analysed through the lens of legal science and the distinction between three levels of analysis (legal theory would be the broadest), see Duarte (2019).
- 40.
As we shall see, legal interpretation plays a key role in legal science because any proposition about law is composed of two statements: an interpretive statement about the norm expressed by a legal formulation and another about the membership of such a norm.
- 41.
See Alchourrón and Bulygin (2012), p. 105 ff.
- 42.
The ‘construction’ of legal institutions, such as contract, tort, etc., is a good example.
- 43.
Not every scholar agrees with assigning this last task to legal science: for some, legal science should stick to noting the existence of these defects, since solving conflicts and filling gaps would change its object of study. However, as we’ll see in clear cases there are correct answers to legal problems, and in those cases solving antinomies and filling gaps still counts as describing something. In hard cases, such as normative conflicts that require the use of balancing, I think that scholars may suggest solutions to these cases, without abandoning the normativist concept of legal science.
- 44.
- 45.
See Nuñez Vaquero (2013), p. 64.
- 46.
Defining the ‘thesis of legal indeterminacy’ in a similar way, see Leiter (1995), p. 481 ff.
- 47.
On a realistic model of legal science according to which the propositions of legal science should be predictions about how judges will decide future controversies, see Ross (1958).
- 48.
See Atienza and Manero (2007), p. 7 ff. As Nino puts it, ‘one finds oneself in a somewhat ridiculous position of having to argue about obvious and almost banal things like that legal activity of jurists satisfies other functions than the one these models [of legal science stricto sensu] allow’. See Nino (1999), p. 13.
- 49.
For an analysis of these models, see Feteris (2017).
- 50.
Also arguing that it is perfectly possible to adopt a normativist model and to hold, without falling into contradiction, that legal scholars should devote themselves to proposing solutions for hard cases (I do not believe they should, but rather that they may), see Nuñez Vaquero (2013), p. 78.
- 51.
A good example is the formal reconstruction of balancing using Alexy’s ‘weight formula’.
- 52.
See Alexy (1999), pp. 374–384.
- 53.
See Guastini (1999a), p. 263 ff.
- 54.
See Moreso et al. (2002), p. 12.
- 55.
See Searle (1970).
- 56.
On this, see Korta and Perry (2015).
- 57.
See Kelsen (2007), p. XIV.
- 58.
The theory of correspondence defines truth as an isomorphic relation of structural similarity between a certain linguistic expression and the corresponding phenomena or states of affairs in the world. As examples of this theoretical view of truth, it is possible to refer to Wittgenstein’s language theory in the Tractatus Logico-Philosophicus, which defined truth as a relation of image between language and the world, and Tarski’s semantic theory of truth. The theory of coherence argues that, because we do not have ‘privileged access’ to ‘external’ phenomena, and always have to resort to the epistemic and logical-conceptual building that constitutes the predominant view of the world (epistémè), all knowledge about the world is transmitted through conceptual categories of language, which is therefore inescapable. Regarding this criticism, even if the definition of truth were determined through the correspondence theory, truth criteria would always have to be adjusted to the requirements imposed by the coherence theory. According to pragmatic theories, the criteria of truth reside, on the one hand, in the approval or disapproval of any true beliefs (would-be true beliefs), conceptions or assertions postulated by the scientific community or other relevant communities, and, on the other hand, the external effects resulting from those beliefs. In any case, I think consequentialist conceptions of law must be rejected, according to which priority is given to the economic or other consequences of law over society. See Siltala (2011), p. 15. On theories of truth, see, for example, Michael Glanzberg (2016).
- 59.
This can be related to the common criticism made of referential theory due to, among other aspects, the fact that language is used to express much more than things and states of affairs in the world. See Lycan (2019), p. 3 ff.
- 60.
In the context of law and legal analysis, the notion of truth may still have to be slightly modified in order to gain a better understanding of the institutional character of the phenomena under consideration. See Siltala (2011), p. 14.
- 61.
See von Wright (1971), p. 20.
- 62.
Although not considering legal science a predominantly descriptive discourse, see Guastini (1999a), p. 267 and Lopes (2018), p. 20 ff. This apparently innocuous specification is related to the excesses of descriptivism (on this, see Duarte (2019). This criticism is related to the prescriptive nature of law—the law itself imposes correction standards that allow us to evaluate the correctness of legal practices and, therefore, to demarcate those that are normatively admissible from those that are normatively inadmissible. In short, mere descriptivism per se does not allow us to explain the specificity of law. And, as I have been arguing, it is possible to suggest solutions to hard cases and still be doing legal science. Also criticizing a rigid descriptive/normative classificatory schema, and showing there can be evaluation to some extent in legal theory, see Dickson (2001).
- 63.
See Kelsen (2009), p. 74; Lopes (2018), p. 20. Regarding Pino’s criticism that legal knowledge changes its own object, at least in the sense that it strives to systematize it, to make it coherent, aiming to overcome the indeterminacy of positive law [see Pino (2019)], it does not seem problematic from a scientific perspective—it is not unfamiliar in all sciences. In fact, at least to some extent, this is actually one of science’s tasks.
- 64.
To dismiss the idea of legal science, Pino argues that legal knowledge is (at least partially) constitutive of its own object [see Pino (2019)]. Firstly, I think that this also happens to some extent with other sciences—such as ‘natural sciences’—although to a lesser extent, as evidenced for example within the conventional and pragmatic theories of truth mentioned. Secondly, there are even some scholars that argue that scientific knowledge is a ‘social product’ [see Longino (1990)]. But to what extent are norms mind-dependent? Some authors argue that, ontologically, general norms are at least weakly mind-independent from an existential perspective—their occurrence or existence is not dependent on the mental activity of any particular individual—and weakly mind-independent from an observational perspective—their nature is not dependent on what it is taken to be by any particular individual. See Kramer (2004), p. 6 ff; Marmor (2001), p. 138. This means that even within the social phenomenon of law there is some amount of mind-independence. In short, the conclusion is, again, that this does not preclude the existence of a true legal science, but just that it may be in some aspects less scientific.
- 65.
Pino argues that legal scholarship’s task is intensely value-laden in a moral and political way—and not epistemic—which can be proved because this kind of activity is inevitably influenced by the interpreter’s legal ideology [see Pino (2019)]. Firstly, according to Bulygin, when realists argue that judicial decisions are more influenced by subjective factors related to the decision-maker than by the norms applicable to the case, they do not adequately distinguish between the reasons that explain why a judge decided in a certain way and the reasons that justify the decision [see Bulygin (1991), pp. 349–350; see also Coleman and Leiter (1997), p. 212; and Moreso (2014), p. 334]. Secondly, such a proposition seems to be a generalisation without empirical data to support it. And even if one admits that this may happen in some cases, in others it is very difficult to see how such subjective aspects could influence decisions. Ultimately, the difference would be of degree, since, usually, in easy cases, such determinants would hardly have a relevant influence on the decision, whereas in hard cases, such as those related to moral content, the influence would be much greater. However, there is no great problem in this regard, because in these cases discretion would be vast. Thirdly, it is also important to state that interpreters can resort to fundamental political values, such as democracy, rule of law, social justice, etc., iff they are members of the respective legal system. And fourthly, for example, Longino argues that consistency, simplicity, etc., are not purely epistemic, and that political and social values are also used in the context of scientific judgements [see Longino (1996), p. 39 ff]. In addition, according to Putnam ‘thick ethical concepts’ (e.g., cruelty) are not purely descriptive but also normative [see Putnam (2002)], and for Dupré, these concepts cannot be eliminated from science [see Dupré (2007), p. 24 ff]. Finally, for Rudner, ethical judgements and contextual values also enter the scientist’s activity of accepting or rejecting hypotheses [see Rudner (1953), p. 1 ff]. Once more, this shows that there is no such a thing as absolute purity even in natural sciences. What is important is to reasonably satisfy the several tenets of science.
- 66.
Enunciating the following general scientific requirements which also apply to legal science: (i) self-reference of the operative notions; (ii) simplicity; (iii) delimitation of the discursive scope; (iv) use of technically representative concepts; and (v) neutrality. See Duarte (2006), p. 23 ff.
- 67.
Including, as sustained, legal theory. Dan Priel, for example, argues for the unsustainability of a ‘legal theory scientific model’ [see Priel (2012), p. 239 ff]. But, as argued in this § 2, I think he is wrong.
- 68.
- 69.
See Pavlakos and Coyle (2005), p. 3.
- 70.
In a developed way, regarding the properties of science and legal science, see Duarte (2019).
- 71.
- 72.
- 73.
The semantic heterogeneity of the term interpretation is not unknown. In a broad sense, the concept of interpretation is sometimes used, by way of illustration, as any kind of ‘explanation’, ‘understanding’ or ‘theorization’, as in the case of interpreting a musical theme, a play (both from the perspective of the actors and from the perspective of the audience), the symptoms of an illness, the data from an experiment, a gesture as a greeting (and not as an offense or threat), a dream, a certain historical event or a certain act carried out by someone, the results of an election, or an article of the Constitution. In a narrow sense, as with literary critics or judges, there is a specific and unique type of argumentation which can be called ‘interpretative’. The distinction between these two meanings of interpretation seems to be that the narrow sense requires an ‘explanation of the meaning of an object’. Thus, ‘only objects capable of having meaning are potential objects of interpretation’, such as acts of communication (as statements), texts, works of art, or even behaviour, social practices, rites or dreams. See Guastini (2014), p. 21 ff; Comanducci (2010), p. 134.
- 74.
This conception seems to presuppose a ‘conceptual relation’ between interpretation and meaning. Contrary to Guastini’s idea that a theory of interpretation does not need a theory of interpretation (an aspect that he does not justify), the understanding of what it means to ‘assign meaning’, and regardless of the peculiarity of legal interpretation seems to presuppose a theory of meaning. Unfortunately this aspect cannot be analysed here, but see Canale (2012), p. 135 ff; Villa (2010), p. 89 ff.
- 75.
- 76.
See Iturralde Sesma (2014), p. 26 ff.
- 77.
For Wróblewski, in the case of interpretation in the broad sense, we would be facing a situation of ‘isomorphism’, in which there would be a ‘direct understanding’ of language, something that occurs daily in the context of human communication. Regarding interpretation in a narrow sense, we would be facing the true interpretation, which would be required either because the issuers did not use the language properly or correctly, or because the context makes it difficult to determine meaning, in which case it would become necessary to use special tools (such as definitions, dictionaries, grammars) to determine meaning. See Wróblewski (1969), p. 21 ff.
- 78.
- 79.
- 80.
See Moreso and Vilajosana (2004), p. 149.
- 81.
There are situations in which a formulation corresponds only to one meaning, although they may be exceptional situations. In any case, from the fact that one-meaning-formulations may be exceptional—first and foremost, because of the indeterminate nature of language—do not follow the inexistence of easy cases of interpretation. As we shall see, in addition to the situations of single meaning, in many situations, in accordance with the norms applicable to interpretation, there is little doubt as to the meaning to be attached to a certain linguistic formulation.
- 82.
- 83.
- 84.
See Gianformaggio (1987), pp. 90–91. Note that she distinguished between (i) noetic interpretation—a mental phenomenon of assigning a meaning to a document, so that it was a mere apprehension or understanding of meaning; (ii) linguistic interpretation—which consists of ascribing a meaning to a formulation that involved expressing an interpretative statement; and (iii) dianoetic interpretation—that is the activity directed to elucidating the meaning of a statement, which consisted of a justificatory reasoning, an argumentation. It seems to me, however, that there is always an adscription of meaning to formulations, even though it may be made in a noetic or dianoetic way. In cases of noetic interpretation, the ascription is implicit and somehow taken for granted. And the cases of linguistic interpretation also must be supported by a justificatory reasoning, which, however, can be pragmatically dismissed by the clarity of the case. In sum, implicit or explicit, in interpretation there is always ascription of meaning and a justificatory reasoning, which can be more or less extensive.
- 85.
Adopting the distinction in these terms, see Lifante Vidal (2018), p. 21 ff.
- 86.
See Wróblewski (1969), p. 21 ff.
- 87.
See Marmor (2005), p. 9.
- 88.
As Lifante Vidal notes [see Lifante Vidal (2018), p. 22], these two meanings seem to correspond to the distinction recently made by some psychologists between quick or intuitive thinking and slow or reflective thinking. Based on several experiments, Kahneman distinguishes between system 1 and system 2 to account for two different ways the brain forms thoughts. System 1 corresponds to a fast, automatic, frequent, emotional, stereotypical, unconscious way of forming thoughts. As examples of things that may happen within this system, people can determine that an object is further away than another, can complete the phrase ‘war and …’, solve the 2 + 2 arithmetic operation, read text on a billboard, or understand simple sentences. System 2 corresponds to a slow, effortful, infrequent, logical, calculating, conscious way of forming thoughts. Examples of things that can be done under system 2 include digging into memory to recognize a sound, determining the appropriateness of a behaviour in a certain social setting, determining the value-for-money of two washing machines, determining the validity of complex logical reasoning, or solving a 17 × 24 arithmetic operation. See Kahneman (2011), p. 19 ff.
- 89.
As noted by Frändberg (2018), p. 281, ‘to understand is often taken to mean that we see relations between separate phenomena and, hence, conceive of these as belonging to a connected whole’.
- 90.
See Lycan (2019), p. 2.
- 91.
And yet that does not mean we do not make mistakes in situations that need longer reasoning.
- 92.
- 93.
And here I include the interpretation of the constitution, because it is also a law, which does not diverge essentially from the interpretation of ordinary law—even cases of moral concepts may also be present in ordinary laws. On this subject, for example, see Guastini (2014), p. 303 ff; Moreso (2014), p. 157 ff. However, this does not necessarily mean that the interpretative norms in a narrow sense applying to constitutional formulations cannot be different in some legal systems, due to their contingency.
- 94.
Although I am referring to the interpretation of texts, it is also possible to ‘interpret’ non-written sources of law, such as customs, in a broad way. Nevertheless, there seems to be a difference because customs are social behaviours, obviously different from linguistic statements. In this case, there is also something similar to a ‘reconstruction’ of norms through the ascription of meaning to a social practice—there is an inference of a norm from a social practice. See Guastini (2014), pp. 28–29.
- 95.
- 96.
- 97.
The intentionalist conception, in turn, presupposes the idea that legal statements are a mere ‘channel’ or ‘vehicle’ through which the legislator expresses content that corresponds to his will or intention, and interpretation would serve precisely to determine the content of the intention of the entities that created the legal texts. See Iturralde Sesma (2014), p. 28. The two most important examples of this conception are probably the intentionalist thesis by Marmor [see Marmor (2005)] and the thesis of the authority’s intention by Raz [see Raz (2009), p. 265 ff]. For a recent summary and appreciation of these theses, see Lifante Vidal (2018), p. 30 ff.
- 98.
Finally, axiological or material conception is based on the fact that the ‘ultimate substance of norms is their axiological character’, due to the fact law is ultimately a system of values. Therefore, the meaning of legal statements to be clarified by interpretation would be an objective value meaning. The (ontological) ‘essence’ of legal texts are certain objective axiological contents (such as justice) that are previous to wills or words; which means that the interpretation of legal statements implies ascertaining the axiological truths that can justify the fair solutions of legal cases. In this perspective, since judges primarily obey justice and not law, whenever there is a discrepancy between what law expresses linguistically (and any average speaker understands) and some standard of justice, the latter must prevail in the context of the interpretive activity [see Iturralde Sesma (2014), p. 28]. Dworkin’s theory of interpretation is a good example of this latter interpretative thesis, as well as some of the more extreme versions of neoconstitutionalism [on this phenomenon, among many others, see Pozzolo (2001)]. Recently, adopting a thesis close to Dworkin’s one, mixed with Atienza’s argumentative theory, see Lifante Vidal (2018).
- 99.
- 100.
- 101.
See Iturralde Sesma (2014), pp. 29–30.
- 102.
See Guastini (2014), p. 77. In Tarello’s words, ‘[the] norm does not “have” a meaning for the simple reason that the norm “is” the meaning of a segment of language in a prescriptive function (...), the legal norm is the meaning that through interpretation is attributed to a document or to a combination of documents’. See Tarello (2013), p. 169 ff.
- 103.
- 104.
- 105.
- 106.
- 107.
- 108.
There is also a distinction between (i) rational indeterminacy, if the class of legal reasons is insufficient to justify one legal outcome, and (ii) causal indeterminacy, if that class is insufficient to lead the judge to reach one outcome. And then we can cross these two distinctions. See Leiter (1995), p. 483.
- 109.
In point § 4.1 I will address different sources of indeterminacy.
- 110.
There are several determinacy theories, such as that of Dworkin [see Dworkin (1977, 1978)] or of Michael Moore [see Moore (1985), p. 279 ff]. The latter’s thesis presupposes, regarding truth in the legal domain, a causal theory of reference, that is, a correspondence theory, according to which truth is defined as an isomorphic relation of similarity between a certain linguistic expression and the corresponding phenomena in the world. As already mentioned, the use of such a theory of truth in the normative domain poses great difficulties, since, in metaphysical terms, it is hardly possible to argue that norms physically exist. In addition, even if one admits that in some cases terms refer to objects by virtue of the causal relationship between them—as sometimes happens with ‘proper names’ (Kripke) and with ‘natural kinds’ (Putnam)—they are still the exception. And finally, moral realism, which is necessary to support such a thesis, is largely problematic. For a synthesis of the positions of Dworkin and Moore, as well as for possible objections, see Orunesu (2012), p. 37 ff.
- 111.
See Mendonca and Guibourg (2004), p. 94.
- 112.
These theories are often based on ‘linguistic essentialism’, according to which there would be something like a ‘natural’ or ‘necessary’ link between words and their meanings. Therefore, if words were used contrary to their ‘natural’ and therefore ‘true’ meanings, we would be facing an ‘incorrect’ interpretation. See Zorrilla (2010), p. 48. Nevertheless, one may be a cognitivist whilst refuting linguistic essentialism.
- 113.
Even if it is not always easy to determine, for each legal question there is ‘one right answer’. In this sense, see Dworkin (1977), p. 146.
- 114.
See Mendonca and Guibourg (2004), p. 93.
- 115.
See Iturralde Sesma (2014), p. 33.
- 116.
Indeed, at normative level, these theories, which resemble the legal formalism of the nineteenth century (which has little to do with modern legal positivism), go beyond interpretation. In this sense, we can say they are characterized by the following traits: (i) the legal system is complete, that is, it has no gaps; (ii) the legal system is consistent, that is, it does not contain normative conflicts; consequently, (iii) the law always offers a correct answer for each case; and (iv) judges simply apply the answers established by law for each case, which means they have no discretion at that level. See Zorrilla (2010), pp. 50–51.
- 117.
See Hart (1977), p. 969 ff.
- 118.
Even the reconstruction of objectivism underlying Dworkin’s one right answer theory according to Putnam’s internal realism faces some problems. This theory proposes identifying truth with ‘acceptability under sufficiently good epistemic conditions’, in identical terms to those developed by Coleman and Leiter [see Coleman and Leiter (1997), pp. 263–264], who defend a ‘moderate objectivism’ according to which what appears to be correct under ideal epistemic conditions determines what is right (and this bears similarities to the Dworkinian metaphor of ‘Judge Hercules’). See Moreso (2014), p. 204; Orunesu (2012), pp. 51–52.
- 119.
On this, see Redondo (2002), p. 114 ff. Sandro’s perspective is the opposite. Because radical scepticism is an untenable theory, one must turn to soft cognitivism [see Sandro (2014), p. 64 ff]. His position is, however, more or less similar to the moderate scepticist (mixed theory) I describe and adopt.
- 120.
However, there are intermediate theses between moderate scepticism and radical scepticism. Or, if we speak of mixed theories and sceptical theories, there seem to be some intermediate versions. For example, Guastini agrees that words are not empty vessels, the problem being in the fact that they always have several meanings, considering, for this reason, his scepticism to be a moderate one. See Guastini (2019).
- 121.
A conception represented essentially by North American authors such as K. Llewellyn, Oliver Wendell Holmes and J. Frank.
- 122.
On this, for example, see Roberto Mangabeira Unger (1983).
- 123.
For realists, a number of reasons contributed to the indeterminacy of law, such as the fact that the existing legal reasons did not justify a univocal decision and were not causally sufficient to explain the decisions of judges [see Leiter (2005), p. 59 ff]. In addition, the multiplicity of interpretive canons allowed at achieving different legitimate interpretative results. Moreover: at the moment of deciding, judges were more influenced by the particular circumstances of the case, by their psychological characteristics and by questions of social and/or political pressure than by the norms applicable to the case [see Orunesu (2012), p. 31]. Not so extremely, Alf Ross also argued that interpretation has a ‘constructive nature’, since it is also influenced or conditioned by tacit presuppositions, prejudices, aspirations, and valuations related to the respective legal tradition surrounding the legislator and the judges, which would also influence judicial decisions [see Ross (1958), pp. 96 and 132–133].
- 124.
See Mendonca and Guibourg (2004), p. 94.
- 125.
This makes it possible to explain phenomena such as the plurality of languages or changes in meaning, and, furthermore, discrepancies in the meanings of words do not necessarily mean that one of the discussants is ‘mistaken’ in relation to the ‘authentic’ meaning of the expression. See Zorrilla (2010), pp. 50–51.
- 126.
Therefore, the idea that there is something like the ‘will’ or ‘intention’ of collegial bodies is irrelevant. See Iturralde Sesma (2014), p. 33.
- 127.
It is an activity of a prescriptive nature. See Guastini (2014), p. 77 ff.
- 128.
Which happens both due to (i1) defects in the legal system itself (gaps, normative conflicts) and (i2) to the very indeterminacy of language. See Mendonca and Guibourg (2004), p. 94.
- 129.
Some ‘realist’ authors even claim that true law is what courts say. As Zorrilla points out, there is also a problem of ‘internal consistency’ with these theories. It is stated that what matters is not the law (or its text), but judicial decisions, but it is forgotten that these are also pronounced through language, which would make it possible, similarly, to argue that those who execute judicial decisions could interpret them as they wish. See Zorrilla (2010), p. 53. In other words, the existence of judicial decisions presupposes the existence of norms [see Hart (2012), p. 133; Schauer (1991), p. 169 ff].
- 130.
Legislation never predetermines judicial decisions, and appliers are free to dictate their decisions, which often depend on political, religious, moral, ideological, or socioeconomic considerations, among others, and not just legal ones. See Zorrilla (2010), pp. 52–53.
- 131.
This school is represented by scholars such as Tarello, Guastini, Mazzarese or Chiassoni (as can be seen in the works quoted along this article). Barberis and Comanducci are also often referred to as representatives of this school, but their theses seem to contain considerable differences—see Barberis (2002), p. 532 ff; Comanducci (2010), p. 131 ff.
- 132.
Calling it ‘moderate-transcendental indeterminacy thesis’, see Sandro (2014), p. 63.
- 133.
According to Chiassoni, Genoa realism’s assumptions are: (i) distinction between norms (the result of interpretation) and normative statements (the text), on the one hand, and explicit and implicit norms, on the other; (ii) the identification of norms, explicit or implicit, as well as of antinomies, redundancies, gaps, hierarchies, etc., are operations dependent on interpretation; (iii) judicial interpretation is not the result of a pure act of knowledge, since any decision also stipulates the legally correct meaning of normative formulations, and the fact that judges adhere to the clear meaning of norms in clear cases would not be a purely cognitive stance, because it would imply a decision to follow the majority interpretation or to use the standard interpretative argument in that context; (iv) the non-existence of one-to-one correspondence between normative formulations and norms; and (v) legislators and other prima facie competent bodies to ‘dictate general norms’ do not actually produce norms, but normative formulations. To this I would add that (vi) words do not have an objective or proper meaning that is independent from use and comprehension; (vii) normative formulations allow for more than one meaning; and (vii), consequently, interpretative statements are neither true nor false (because they only attribute meanings to normative formulations). See Chiassoni (2013), p. 33 ff.
- 134.
- 135.
See Sandro (2014), p. 63 ff.
- 136.
- 137.
See Zorrilla (2010), pp. 52–53.
- 138.
See Sandro (2014), p. 80. And this means that a theory of legal interpretation cannot also be completely pure in this sense. In addition, again, the phenomenon of law is different from empirical reality, which shows the insufficiency of the correspondence theory of truth in this domain.
- 139.
See Sandro (2014), p. 66.
- 140.
Supporters of these theses are, e.g., Hart, Aarnio, Wassertrom, Wróblewski or Moreso.
- 141.
On the distinction between ‘clear’ and ‘hard’ cases, see § 4.2 above.
- 142.
That is to say, starting from a positivist conception similar to Hart’s, according to which, on the one hand, law is partly indeterminate and, on the other hand and as a consequence, the interpreters-appliers of law have limited discretion [see Hart (2012), pp. 124 ff and 251 ff].
- 143.
See Moreso (2014), p. 186 ff.
- 144.
See Mendonca and Guibourg (2004), p. 94.
- 145.
See Hart (2012), p. 158. Indeed, for the British author, whenever it was possible to determine an established use of language in the community we would have a ‘clear case’, in which interpreters would identify the correct meaning of words if they correctly identify the content of the linguistic community conventions. It is therefore possible to interpret this thesis in the sense that what a legal norm ‘says’ corresponds in some way to facts such as human behaviours and psychological states [see Iglesias Vila (1998), p. 133]. With his semantic theory, by assigning those facts the role of individualizing concepts and by identifying determinacy with collective certainty, Hart would seem to come dangerously close to Kripke’s idea that what determines a norm is the community’s agreement regarding its applications. The problem is obvious: how could norms determine actions when, after all, actions determine the meaning of norms? [see Bayón (2003a), p. 56] Beyond the hypothesis of simply arguing that we are facing a situation of interpretation of customary linguistic norms (with the inference of customary norms from some community practices), another possibility would be to say that it is our agreements on the judgments that make norms possible, but we do not use those agreements to establish whether a given action is correct according to the norm. Thus, the judgment of correctness does not depend on others agreeing with judgment. In order to establish whether or not the application of a norm is correct, we use the criterion of correctness, we do not first ask each one if the application is correct [see Bix (1993), p. 41; Bayón (2003a)]. According to this view, a bridge between the norm and its instances of use would not be necessary. We would therefore be, in Wittgenstein’s fashion, facing a way of grasping a norm which is not an interpretation, but which would simply consist of the act of following it and the justifications given for those acts. In any case, it is not only when there are difficulties in specifying the conditions of use that we have to interpret [differently, see Marmor (2005), p. 21 ff; identically, Orunesu (2012), p. 55]. Indeed, even if a distinction can be made between the mere ‘capturing’ of a meaning of a word (noetic) and the interpretation of other cases (dianoetic), for the reasons given above, there is always a presupposed operation, which is naturally interpretation.
- 146.
A precision is required here. The conventionality of language does not necessarily result in semantic instability or multiplicity. Language can be conventional and be absolutely determinate, as with some logical language.
- 147.
See Mendonca and Guibourg (2004), p. 94.
- 148.
Of course, beyond interpretation, these conclusions may extend to cases of determinacy or indeterminacy as to the various problems raised by legal systems such as gaps and normative conflicts.
- 149.
Which, in any case, does not mean that they can decide in any way, or that it is unnecessary to justify their decisions.
- 150.
- 151.
- 152.
- 153.
- 154.
See Kelsen (2009), p. 348 ff.
- 155.
See Guastini (2014), p. 90.
- 156.
- 157.
- 158.
Of course, according to Guastini, because of the conventionality of meanings in general and norms in particular, doctrinal interpretation can also contribute, in the long run, to the creation of normativity. See Guastini (2012a), p. 207 ff.
- 159.
See Pino (2013), p. 367.
- 160.
In a very close sense, even though referring only to the bodies that apply law, see Pino (2013), pp. 367–368.
- 161.
Distinguishing between definiteness and infallibility, see Hart (2012), p. 141 ff.
- 162.
- 163.
- 164.
Similarly, see Chiassoni (2011: cap. II).
- 165.
In interpretation in concreto, there is a clash between interpretation and application.
- 166.
This shows that there are several types of interpretative statements for the different types of interpretation (abstract or concrete) [see Guastini (2014), p. 51 ff]. In contrast to ‘subsuntive statements’—‘the conduct p subsumes to the antecedent of norm1’—the contents of ‘interpretative statements in the narrow sense’ (those related to adjudicative interpretation in abstracto) are not truth-bearers, but ought contents—they express a ‘norm’ [see Lopes and Franco (2019)]. But this does not mean that no truth propositions are possible in this case. As we shall see, it is always possible to make a proposition, for example, and it is possible to state that it is true or false that there is one and only one meaning regarding that NS. In addition, we are talking about ‘meaning’, which explains the intuition that there is here a conflation of description and normativity in some cases, as seems to be stressed by some philosophy of language scholars. It is however impossible to address this question here.
- 167.
In a similar sense, see Rodríguez and Orunesu (2016), p. 259.
- 168.
- 169.
This is of course a simplification, because legal decisions are based on a much wider tree of syllogisms.
- 170.
See Alchourrón and Bulygin (2012), pp. 236–237.
- 171.
This distinction was originally made by Wróblewski [see Wróblewski (1971), p. 409 ff] and was later adopted by authors such as MacCormick [although mentioning deductive justification and second-order justification, see MacCormick (1978), pp. 19 ff and 100 ff], Aarnio [see Aarnio (1987)] or Alexy [see Alexy (2010b), p. 213 ff].
- 172.
See Moreso and Vilajosana (2004), p. 178.
- 173.
- 174.
- 175.
See Moreso and Vilajosana (2004), p. 157.
- 176.
See Duarte (2011), p. 112 ff. According to the same author, legal systems adopt an official natural language, and due to that they formally ‘receive’ the set of rules of that language; which, nevertheless, retains autonomy and hence control over the production of its own norms and its specific evolution (114–115); (2018), p. 137 ff.
- 177.
- 178.
On this type of model, see Iturralde Sesma (2014), p. 73 ff.
- 179.
The issuer usually is not a physical person, but a body composed of several physical persons; there is therefore a directional communication (not a dialogue) of the ‘legislator → addressees’ type. The pragmatic spatio-temporal information here is practically irrelevant. And law is an institutional phenomenon that establishes an institutionalized power relationship in which the legislator and the interpreters-appliers are bound to law. See Iturralde Sesma (2014), p. 77. Also stressing the differences in comparison to ordinary dialogues, due to the spatial and temporal distance between issuers (normative authorities) and receivers (the addressees of norms), which results in the reduced relevance of context in the field of normative communication, see Duarte (2011), p. 118 ff.
- 180.
This is the communication model usually used in written communication. See Iturralde Sesma (2014), p. 77.
- 181.
See Moreso and Vilajosana (2004), p. 157.
- 182.
- 183.
Usually, they are referred as rules, but can also be principles, and therefore the norm-label is better.
- 184.
I am including the definitory norms in the subset of legal interpretative norms, even if I am aware of their content differences. For a recent analysis of definitory norms, see Duarte (2018), p. 139 ff.
- 185.
- 186.
In a similar sense, referring to first grade directives (primary directives) and second grade directives (secondary directives), see Wróblewski (1992). Although in a somewhat different sense, for an extensive analysis of ‘primary’ and ‘secondary hermeneutical directives’, see Chiassoni (2011), p. 89 ff.
- 187.
In this sense, and distinguishing the concepts of conformity and compatibility, see Lopes and Franco (2019).
- 188.
See, for example, Lewis (2001), p. 563 ff.
- 189.
As noted by the rejection of collaborative communication models, pragmatics is less relevant in normative communication. Nevertheless, see Villa (2010), p. 89 ff. It should be noted, however, that legal interpretation concerns not only legal texts, but also judicial decisions, contracts, administrative acts, etc. And in these cases, the relevance of pragmatics increases considerably. That said, one must recognize that context, to a greater or lesser extent, influences the frame of meanings, to which I will refer later. In particular, besides ‘co-text’, it is possible to distinguish between two types of context: (i) ‘background context’ and (ii) ‘proximal context’. If proximal context (and pragmatics) is of scant importance for normative interpretation, for the reasons already mentioned, the same does not happen with the background context, ‘which is represented by that set of basic pieces of information on natural facts (for instance, on certain laws of nature) and cultural ones (for instance, on the presence of certain institutions and certain social habits), of shared practices on how to do ‘certain things correctly’, and so forth, which are commonly shared by the competent members—even minimally—of a certain linguistic community, and which help to fix some stable meanings in the affirmations that we make’. See Villa (2010), p. 110 ff, Villa (2016), p. 114 ff. On the concept of co-text, see Poggi (2013), p. 313 ff. However, it is important to be careful with the use of the concept of co-text, so as not to try to solve non-linguistic problems through interpretation—once again, it must be stressed that, analytically, the operations of interpretation, application and resolution of normative conflicts have different functions and cannot be confused.
- 190.
See Chiassoni (2011), p. 66.
- 191.
These rules, in Davidson’s fashion, translate into empirically observable regularities, being generalizations obtained from abstractions or inductions. See Davidson (1984), pp. 279–280.
- 192.
Therefore, it is a function of meaning, its components and the rules that combine them to generate a well-formed expression in a language.
- 193.
Other not so uncontroversial properties are: (v) literal meaning is generated through linguistic knowledge of lexical items combined with linguistic rules; (vi) it cannot be cancelled, that is, it binds the speaker; and (vii) it is easily and quickly accessible (in contrast with non-literal meaning). See Iturralde Sesma (2014), pp. 38–39.
- 194.
- 195.
In Recanati’s terminology. See Recanati (2003).
- 196.
I am assuming here that the conventional character of language is explained by a normative thesis: meaning is related to certain semantic norms, which are created through an agreement or convention on the use of language to account for phenomena, events or objects [see Iglesias Vila (1999), p. 83]. Of course, since the norms of language are essentially custom-based, they are especially linked to regular behaviours, that is, they begin precisely with this regularity. In the context of an (apparently) mixed theory, exploring the concept of regularity of behaviours and admitting that the idea of regularity also accommodates the normative dimension of language, see Lewis (2002).
- 197.
The legal community generally comprises judges, civil servants and also legal scholars and lawyers in general.
- 198.
See Marmor (2009), p. 87.
- 199.
Stability does not mean that meanings do not change or evolve diachronically and synchronously—conventions on the basis of linguistic norms, like any other norms, can also undergo changes. And changes can even happen regarding the rigid properties of concepts (think of the whale, which began as a fish, is now considered a mammal, and nothing prevents a future scientific discovery leading to a new semantic variation). This is explained by the simple fact that meaning does not come from the ‘nature of things’; there is no natural ontology that permanently fixes meanings. See Iturralde Sesma (2014), pp. 95–96.
- 200.
The term is used by Recanati (2003).
- 201.
With some similarities, Luzzati states that “letter’ [of the law] is the set of all possible meanings that can be assigned a provision according to the semantic and pragmatic rules underlying the consolidated uses of the language of jurists, and interpretation is literal when the maximum effort is made not to innovate the meanings of expressions regarding the usual meanings in the jurists’ lexicon’. See Luzzati (1990), p. 225 ff.
- 202.
Similarly, see Iturralde Sesma (2014), pp. 38–39.
- 203.
Villa emphasizes that the various theories of interpretation discussed above presuppose an excessively dichotomous opposition between discovery and creation of meaning, which seems to start from a static view of meaning as if meaning were created at one point in time [see Villa (2010), p. 105 ff]. The truth is that the way in which semantic norms are created reveals the existence of a dynamic process of meaning construction: it all starts with the regularity of behaviours, terms in which each assignment of a certain meaning has a creative dimension to a certain extent. And this idea is indispensable to understanding how a stable meaning can evolve or change.
- 204.
See Duarte (2011), p. 132 ff.
- 205.
See Soames (2014), p. 300.
- 206.
See article 9 of the Portuguese Civil Code.
- 207.
- 208.
As already noted, the set of addressees consists of ‘all interpreters’, which are everyone. With a similar reconstruction, see Duarte (2018), p. 142 ff.
- 209.
- 210.
See Raz (2009).
- 211.
Among many others, see Raz (1999), p. 15 ff.
- 212.
Entre outros, see Duarte (2011), p. 129.
- 213.
See Klatt (2008), p. 62 ff.
- 214.
See, for example, Sandro (2014). The importance of this aspect also concerns the connection between the institutional nature of law and the impossibility of determining the subjective intention of normative decisions taken by collegiate bodies. As Waldron argues, ‘what the decision is—what we have done—is the text of the statute as determined by the institutions’ procedures’. See Waldron (1999), p. 145.
- 215.
See Lyons (1977), p. 174 ff.
- 216.
See Kelsen (2009: ff).
- 217.
Similarly, see Guastini (2014), p. 74.
- 218.
Very briefly, syntactic uncertainty results from sequential organization, as well as and especially forms of disjunctive (‘or’) or conjunctive (‘and’) connectors. Ambiguity consists of a word or a linguistic sentence expressing more than one meaning (therefore, it is related to words). Vagueness refers to the indeterminacy of the extension or denotation of a word in relation to its connotation or intension (therefore, it is related to meanings); and thus when trying to establish which objects are named by a certain word, it may happen that the word refers undoubtedly to a certain object, that it does not relate to another object, and that there are doubts as to whether it relates to a third object. Finally, open texture consists of potential vagueness that affects language in general, since it is empirically impossible to predict the emergence of new properties that were unknown at the moment when the essential properties of a word were determined. About these phenomena, among many others, see Endicott (2001); Duarte (2011), p. 122 ff. For a fresh view on vagueness, see Escher (2019).
- 219.
Among others, see Duarte (2011), p. 122 ff.
- 220.
- 221.
Cognition can also relate to the finding by the interpreter ‘that in the past such and such a particular meaning has been given to a document, just as he may claim to foresee the meaning which will be given to a document in the future’ [see Nerhot (1990), p. 201]. In addition, it should be noted that cognitive interpretation presupposes that meanings are public, known by the linguistic community, and hence that they are prior to the adjudicative decision. See Canale (2012), p. 157.
- 222.
As Guastini warns, this operation goes beyond mere interpretation and can therefore be described as creation of law. See Guastini (2014), p. 45 ff. It is usually said that cognitive interpretation is intensely scientific, because within this operation a mere (value-free) description of the meanings resulting from a certain text or term is to be made. In contrast, adjudicative interpretation would not be scientific because it would involve the interpreter choosing between potential meanings. In a sceptical stance, according to Pino even cognitive interpretation is not scientific [see Pino (2019)]. First, drawing a ‘complete’ frame is impossible or, if possible, utterly useless because there are several methods of legal interpretation, which are usually open to multiple applications; the amount of information is so huge it would be impossible or at least useless for interpreters to draw the frame. Secondly, drawing the frame requires decisions and value-judgements in a way that is not qualitatively different from adjudicative interpretation—we need a reasonableness criterion to select the linguistic meanings to be included in the frame [see Guastini (2014), p. 60; Chiassoni (2016), p. 105], and this precludes the characterization of cognitive interpretation as a purely descriptive and ‘scientific’ enterprise. Even if there is some truth in Pino‘s criticisms, he clearly proves too much.
Firstly, the frame of meanings not always having clear boundaries does not mean it is impossible to determine the frame in all cases. And, clearly, the frame of meanings makes it possible to distinguish between interpretation and the creation of law—and therefore to determine whether interpreters are going beyond their competence—and it seems to reflect the way legal operators act. And as I started out explaining, making choices is an unavoidable aspect in science.
Secondly, according to the principles of democracy and separation of powers, the competence to create norms lies with the legislator, so it is normal for interpreters to be limited in their activity, in particular by linguistic boundaries arising from texts authoritatively enacted by the legislator. The remaining limits derive from norms regulating the operations of interpretation, application and resolution of normative conflicts. Without this, there would probably be no rule of law.
Thirdly, there is minimal agreement as to the question of the normativity of semantic meaning, which lies in the idea that it is impossible to communicate, unless it is possible to use words incorrectly. As argued, this shows that the meaning of a word in natural language provides the first standard of correctness; and this semantic correctness can be determined by looking at conventional linguistic norms. This means it is possible to distinguish between correct and incorrect language usages [see Klatt (2008)]. However, the limits of the wording separate interpretation from creation of law if, and only if, there is a stable interpretative practice or use. In any case, although the determination of linguistic uncertainty translates into situations very close to creation of law, the path followed allows us to situate and identify problematic situations—from the viewpoint of separation of powers—without having to contaminate the remaining interpretative cases.
- 223.
See Villa (2012), p. 177. Indeed, it is one thing to include a multiplicity of meanings in the frame, it is another to include therein all that are logically possible, regardless of the current linguistic uses.
- 224.
- 225.
In a similar sense, see Chiassoni (2011), p. 59.
- 226.
See Duarte (2011), pp. 132–133.
- 227.
Stressing that the process of presenting reasons is a necessary property of rationality, see Schauer (1995), pp. 633–634.
- 228.
Contrary to Fuller’s argument, these norms, because they are structural principles, do not have to belong to a different normative set, such as morality. As it is now almost consensual, legal systems contain both rules and principles (which is especially noticeable in modern constitutions). See Fuller (1958), p. 630 ff.
- 229.
On principles as optimization mandates, see Alexy (2010b), p. 47.
- 230.
As Bix puts it: ‘It is characteristic of certain types of social systems, including legal systems, to favour words’ meaning over speakers’ meaning. The effectiveness of legal rules in guiding and co-ordinating behaviour depends on citizens generally being able to figure out without great effort how the rules will be applied’. See Bix (1993), p. 70.
- 231.
- 232.
On this, see Sampaio (2018), p. 79 ff.
- 233.
See Duarte (2010), p. 61. Nevertheless, it can be argued whether this discretion will not be reduced, at least, by imperatives of coherence in discourse or rationality, which may eventually result from a linguistically imposed reduction, since something ‘balanced’ also means that it is not arbitrary or irrational, and therefore is something based on reasons.
- 234.
- 235.
See Alexy (2003), p. 436 ff.
- 236.
However, distinguishing between interpretation and normative defeasibility (which is related to solving normative conflicts) is important and often does not happen. Interpretation relates to assigning meanings to texts, while normative defeasibility, as a result of the resolution of a normative conflict—which occurs after interpretation—is related to the inapplicability of a norm over another. On this, see Brozek (2004), p. 39; Bayón (2003b), p. 56; Duarte (2011), pp. 135–136.
- 237.
Similarly, see Iturralde Sesma (2014), p. 130. Guastini himself started to admit the existence of a distinction between creation and interpretative choice of a meaning [see Guastini (1999b), p. 206]. Although it may be argued, as Kelsen did, that the distinction is of degree—in a sense, judges also create law (see Kelsen (2009), p. 232 ff—we must distinguish between creation in the narrow sense and other situations in which there is an act of will. And I do not think volition is a sufficient property to state that law has been created. On the ambiguity of the concept of ‘creation of law’, see Bulygin (2015a), p. 75 ff.
- 238.
For radical indeterminists, it is never possible to assign a meaning to legal rules because they are mere ‘empty vessels’ and lack semantic content. See Altman (1990), pp. 90–91. Guastini sought to distance himself from this thesis (which he called radical scepticism), considering it unsustainable, arguing that saying that a normative formulation is ambiguous is different from saying that it has no meaning prior to interpretation. This last thesis would imply the non-existence of linguistic rules or conventions and would not even make it possible to distinguish between a ‘genuinely interpretative’ decision (that is, the choice of one of the meanings available within a frame of meanings determined through cognitive interpretation) and the legal creation of new meanings and, therefore, new legal norms. His moderate scepticism, on the other hand, would only mean that it is always possible to interpret a text in several ways and that, therefore, there would be no truth criteria for interpretive statements [see Guastini (2011), p. 138 ff, Guastini (2019)]. As Rodríguez and Orunesu puts it, on the one hand, it follows that if it is possible to draw up a frame of meanings, then we have to accept the existence of a standard of correctness between admissible and inadmissible meanings, and truth propositions can be made at that level (e.g., ‘Meaning N1 does not fit into Frame NF’). This is particularly important because it calls into question Guastini’s thesis that interpretative statements always lack the value of truth; this means he is now even closer to the thesis of law’s partial indeterminacy. See Rodríguez and Orunesu (2016), p. 229.
- 239.
One can therefore say, in a metaphoric sense, that norms are like Schrödinger’s cat: before opening the linguistic box, all interpretative scenarios are possible.
- 240.
- 241.
See Marmor (2001), p. 112 ff.
- 242.
See also Bulygin (2015b), p. 303. It is, however, possible to distinguish between ‘weak mind-independence’, when the existence or nature of some phenomenon is independent from separate individuals but depends on the convergent views of groups, and ‘strong mind-independence’, when the existence or nature of some phenomenon does not depend either on the views of separate individuals or convergent views of groups. See Kramer (2004), p. 3 ff.
- 243.
See Leiter (2004), p. 971.
- 244.
- 245.
In this sense, relying on Searle and concluding that it is possible to formulate objective epistemic judgments about ontologically subjective entities, see Moreso (2009), p. 177.
- 246.
- 247.
The term proposition is ambiguous, as can be proved by its broad use in contemporary philosophy. It can be used to refer to some or all of the following: ‘the primary bearers of truth-value, the objects of belief and other “propositional attitudes” (i.e., what is believed, doubted, etc.), the referents of that-clauses, and the meanings of sentences’. Nevertheless, one can define proposition as ‘the sharable objects of the attitudes and the primary bearers of truth and falsity’. See McGrath and Frank (2018).
- 248.
See Bulygin (2015b), p. 304.
- 249.
It is important to remember, as stated at the beginning, that law requires a weaker form of truth than the presupposed by the theory of correspondence. This, obviously, is one of the reasons behind the possibility to express normative propositions.
- 250.
- 251.
See Moreso (2002), p. 80.
- 252.
See Moreso (2009), p. 175. In the field of law—of course, for those in favour of legal positivism—only normative propositions concerning legal norms and not norms from other normative systems, such as morality, are of interest [see Moreso (2009), p. 176]. The exception lies in cases when legal systems receive norms or concepts from different systems. A very complicated question is whether in the cases of moral concepts, typical of constitutional texts, there are some situations of semantic objectivity. This leads us to metaethics, which will not be discussed in this text.
- 253.
- 254.
See Moreso (2009), p. 176.
- 255.
See Bulygin (2015b), p. 305. Similarly, stating that objectivity is the characteristic according to which the truth value of statements depends on certain facts (such as social ones), legal statements would then be true or false depending on what law actually states in certain cases—arguing, therefore, that ‘there is a conceptual link between knowledge of law and objective knowledge of the normative qualifications of certain actions’—see Moreso, Navarro and Redondo (2002), p. 9.
- 256.
See Leiter (2004), p. 977. Related with this distinction, Kress distinguishes between (i) metaphysical indeterminacy, according to which the law itself is indeterminate (‘speaks to whether there is law’), and (ii) epistemic indeterminacy, according to which it is our knowledge about law that is indeterminate (speaks ‘to whether the law can be known’). See Kress (1990), pp. 138–139.
- 257.
See Leiter (1995).
- 258.
See Moreso (2014), p. 158.
- 259.
See Bulygin (2015b), pp. 305–306.
- 260.
See Bulygin (2015b), p. 307 ff. Note that indeterminacy may generally increase or decrease from legal system to legal system, as well as within different legal subsystems. Therefore, there is an overall high indeterminacy in common law legal systems, as well as in the constitutional subsystem. See Schauer (2009), p. 175 ff; Sandro (2014).
- 261.
In the latter case, however, as we saw above, the norms that regulate interpretation can determine the meaning to be ascribed to linguistic formulations; therefore, in these cases there is also determinacy and objectivity. Here we can distinguish between three types of propositions: (i) categorical interpretative propositions, according to which a certain norm sentence expresses a single meaning ‘NS → N’ (which may happen because there is only one meaning or because from the application of the interpretative norms one single meaning must be chosen); (ii) hypothetical propositions of disjunctive conditionality, according to which a certain norm sentence expresses several meanings (‘NS → N1 v N2 v N3’); and (iii) preference propositions, regarding the expression of preferences for a particular choice for specific reasons. It is important to remember that, epistemically, a preferential judgement may be reasonably objective if it is supported by reasons external to the issuer of the preference judgement.
- 262.
See Bulygin (2015b), pp. 305–306.
- 263.
- 264.
For the Genoese school, however, especially since they consider there to be no true meanings, there would never be determinacy and therefore there would never be objectivity. In this sense, Tecla Mazzarese sought to question the thesis that it is possible to make truth normative propositions because normative formulations express a multiplicity of meanings and therefore a multiplicity of potential norms; therefore, interpreters have to choose one of the meanings, without there being a standard of correctness [see Mazzarese (1991), p. 39 ff]. In my view, Bulygin’s criticisms of this perspective are correct. In particular, first of all, from denying that ‘a normative formulation always expresses a norm’, it does not logically follow that it ‘always expresses a multiplicity of norms’—it is a fallacy of illegitimate generalization; and, as I have argued, this is not always the case. Secondly, if all normative formulations were ambiguous, it could be the case that there were simply no norms or, at the very least, it was impossible for them to fulfil their function of regulating and influencing behaviour, which is false. See Bulygin (1999), p. 186 ff.
- 265.
See Redondo (2002). As I will argue next, what is common are not cases of complete indeterminacy, but cases usually have points of determinacy and points of indeterminacy.
- 266.
The existence of clear cases and the consequent unsustainability of radical interpretative scepticism is related to Wittgenstein’s own idea that disagreements presuppose a minimum agreement on something: in the context of a linguistic game like interpretation, in order to be in disagreement we must first agree on something, particularly as regards the linguistic norms that regulate it. See Barberis (2000), p. 27. In addition, as Leiter mentions, the argument against radical scepticism is usually that (i) there are easy cases, in which (ii) the legal outcome is predictable, and (iii) the prevalence of easy cases has been obscured because hard cases are usually selected for litigation. However, arguments (ii) and (iii) are parasitical regarding (i). See Leiter (1995).
- 267.
As to whether most cases are easy or difficult, this is a purely statistical matter.
- 268.
See MacCormick (1978), p. 197. It should be noted, however, that the author later explained this idea in the prologue of his book, stating that ‘deductive reasoning from rules cannot be a self sufficient, self-supporting, mode of legal justification. It is always encapsulated in a web of anterior and ulterior reasoning from principles and values, even although a purely pragmatic view would reveal many situations and cases in which no one thinks it worth the trouble to go beyond the rules for practical purposes’ [see MacCormick (1978), p. xiii].
- 269.
In a similar sense, see Maranhão (2017), p. 115.
- 270.
One could also think of: (i) epistemically hard cases—ones in which, despite the existence of a legal answer, an intellectual effort is required for it to be identified (and they can be objectively caused by the way a certain behaviour has been regulated or subjectively caused by the interpreter-applier’s lack of epistemic capacity to identify the respective situation due to a lack of knowledge or experience); (ii) pragmatically hard cases—the difficulty arises from a context that transcends the legal aspects of the case, such as concrete political or social circumstances; and (iii) morally hard cases—the difficulty is that the legal conclusion involves unfair results, that is, they may not be morally justified. See Iglesias Vila (1999), pp. 109–110. Similarly, pointing out that hard cases can arise from logical, empirical, epistemic, evaluative problems, among others, see Redondo (2002), p. 112.
- 271.
Some realists, such as Leiter, tend to argue that indeterminacy situations correspond to ‘rationally’ hard cases and that hard cases roughly coincide with court or appellate cases. See Leiter (1995).
- 272.
Referring to the indisputability of external and internal justification, see Maranhão (2017), p. 119.
- 273.
See Peczenik (2008), pp. 14–15.
- 274.
Solum’s distinction between indeterminacy and underdeterminacy therefore makes perfect sense: what often happens is that legal cases are only ‘constrained by the law, but not determined by it’. More precisely, he stipulates that (i) ‘[t]he law is determinate with respect to a given case if and only if the set of legally acceptable outcomes contains one and only one member’; (ii) ‘[t]he law is underdeterminate with respect to a given case if and only if the set of legally acceptable outcomes is a nonidentical subset of the subset of all possible results’; and (iii) ‘[t]he law is indeterminate with respect to a given case if the set of legally acceptable outcomes is identical with the set of all possible results’. See Solum (2010), pp. 480–481 His concept of underdetermicacy seems to correspond to discretion.
- 275.
See Hart (2012), p. 123; see also Duarte (2011), p. 125 ff. Curiously, Ross (who is a ‘realist’) says more or less the same—see Alf Ross (1958), p. 111. If the core of certainty of a term is involved, it is possible to distinguish between correct and incorrect linguistic uses and therefore it is possible to state that a particular interpretation is correct and justified or incorrect and unjustified. For example, there is no doubt that a man with a great deal of hair is not bald, just as there is no doubt that if that same man has no hair, he is bald. See Zorrilla (2010), pp. 52–53.
- 276.
See Redondo (2002), p. 116 ff. The sorites paradox will, therefore, lead us to a problem of infinite regression as to the limits between clear cases and penumbra cases.
- 277.
See Redondo (2002), p. 123.
- 278.
See Bix (1993), p. 18.
- 279.
See Moreso (2002), pp. 69–70.
- 280.
This is not substantially different from Leiter’s thesis, according to which the notion of easy case depends on the existence of rational determinacy, i.e., they arise when the sources of law and the interpretation and methodological operations allow for a single decision. See Leiter (1995).
- 281.
For these and other cases of clear statements, see Iturralde Sesma (2014), p. 69 ff.
- 282.
Usually, Genoese realists say that normative formulations allow more than one interpretation and that there is no one-to-one correspondence between normative formulations and norms. However, these statements are in fact the result of fallacies of inadequate generalization—from the fact that those statements are true in many cases, it does not follow that a normative formulation can never (in one-to-one way) correspond to a single norm. See Rodríguez and Orunesu (2016), p. 236; Orunesu (2012), p. 53.
- 283.
See Alexy (2010b), p. 29.
- 284.
See Hart (2012), p. 126. Again, just because a normative formulation often allows for different interpretations, it does not follow that there are no clear cases. And situations of agreement or convergence in the legal community may be examples of this. This does not mean that agreements like this cannot be challenged in the future and, if successful, the interpretation will change. But the possibility of changing a convention does not deny the existence of conventions. Therefore, whenever there is a linguistic convention assumed by the legal community of reference, it will serve as an interpretative criterion of correct interpretation. See Rodríguez and Orunesu (2016), p. 229.
- 285.
See Iglesias Vila (1998), p. 135.
- 286.
This shows that interpreters, no matter how much discretion they may have, cannot arbitrarily assign any meaning to linguistic statements.
- 287.
See Schauer (1991), p. 191 ff; Moreso (2014), p. 182; Zorrilla (2010), p. 53. It seems that sceptics are excessively focusing on court and appellate cases, in which there are usually disagreements regarding legal outcomes—this is the so called ‘selection effect’ [see Schauer (1991), p. 191 ff; Leiter (1995). But even in these cases, it is debateable whether or not the majority are hard ones. As Solum argues: ‘litigation may proceed for any number of reasons, including an irrational overconfidence in a hopeless case, uncertainty about facts in a case in which the law is clear, and so forth’. Solum (2010), p. 488.
- 288.
To a certain extent, Chiassoni is right when he states that judicial interpretation is never the result of a pure act of cognition and that even in clear cases there is a process of decision-making [see Chiassoni (2013)]. But, on the one hand, this happens because the function of judges is to make decisions—although there is a difference from someone who interprets a legal text knowing how to behave; on the other hand, as I already stated, ‘volition’ is not a sufficient property to create law in a narrow sense. In any case, the important thing here is to determine whether legal norms provide standards for assessing the correctness of judicial decisions [similarly, see Rodríguez and Orunesu (2016), p. 229]. The answer I have been giving suggests that, in many cases (clear ones), norms provide those standards.
- 289.
See Hart (2012), p. 141 ff.
- 290.
- 291.
In these cases, because there is a standard that allows correctness of a certain decision to be assessed, the disagreements identified are caused by error. In cases where there is no standard of correction, we will have faultless disagreements. There are several types of disagreements, such as legal ones. The latter ones may be varyingly intense, and of different nature, such as interpretative or applicative, which may regard intension or extension [about these distinctions, see, for example, Guastini (2012b), p. 61 ff]. Deep interpretative disagreements are the most intense, and essentially contested concepts are one example of them (perhaps the main example). On this, see also Villa (2016), p. 94 ff; talking about these deep interpretative problems regarding the principle of human dignity, see Sampaio (2019), p. 175 ff.
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Sampaio, J.S. (2019). An Almost Pure Theory of Legal Interpretation within Legal Science. In: Duarte, D., Moniz Lopes, P., Silva Sampaio, J. (eds) Legal Interpretation and Scientific Knowledge. Springer, Cham. https://doi.org/10.1007/978-3-030-18671-5_5
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