Abstract
What is legal interpretation? Which relations, if any, do exist between legal interpretation and truth? Which are the logical forms of the sentences we find in interpretive discourse? By providing an answer to these questions, the chapter purports to set the stage for the whole book. In carrying out an enquiry concerning the connections between legal interpretation and truth, it outlines a realistic conceptual apparatus, which aims at capturing (most of) the relevant features in the phenomenon of “legal interpretation” very broadly conceived. It also lays down a proposal concerning the logical forms of the basic varieties of sentences occurring in interpretive discourse.
If we want to study the problems of truth and falsehood, of the agreement or disagreement of propositions with reality, of the nature of assertion, assumption and question, we shall with great advantage look at primitive forms of language in which these forms of thinking appear without the confusing background of highly complicated processes of thought
—L. Wittgenstein (1958)
The reconstructive attitude demands that we describe the world in a way that does not impoverish it by artificial reductions, and it thus requires that we make important distinctions wherever there is an objective need for them
—H. Feigl (1949)
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Notes
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The distinction between legal provision, explicit norm and implicit norm (on which I will come back in a moment) is paramount to Genoese realistic theory of law and legal interpretation. See Guastini (2011a), pp. 63–74; Guastini (2011b), pp. 138–161. From a pragmatic vantage point, the explicit norm corresponds to what the sentence-in-context is taken to express (the full expressed communication); this may be different from what the sentence (the word of the law) “says”, and should not be confused with what the sentence “implies”. On this issue I will come back in Chaps. 4 and 5 below.
- 5.
It is worthwhile quoting a few lines from J. L. Austin: “Verdictives consist in the delivering of a finding, official or unofficial, upon evidence or reasons as to value or fact, so far as these are distinguishable […] a judge’s ruling makes law […] but it still purports to be correct or incorrect, right or wrong, justifiable or unjustifiable on the evidence” (Austin 1962, pp. 153–154).
- 6.
In an old paper, I maintained that interpretive sentences “ascribe one meaning to legal provisions, ruling out other meanings that could eventually be ascribed to them” (Chiassoni 1999a, p. 27, 36–37, 40). Likewise, Diciotti (1999, pp. 152–157, 284 ff.), on the basis of a non-cognivist theory of interpretation, comes to the conclusion that “interpretive propositions” are “evaluative propositions”, the logical form of which is: “S is the only meaning that it is good to ascribe to the statutory sentence F, or to the term E contained in the statutory sentence F”. He also claims that “the foundation” of such propositions consists “(also) in methodological principles of interpretation, that is to say, in evaluative propositions that establish the methods and arguments that it is good employing in order to ascribe a meaning to statutory texts” (like, e.g., “it is good that interpreters, and first of all the judges, ascribe to statutory texts the meaning which corresponds to the intention of the legislator”). From the standpoint of the rules of interpretive games, however, such ways of conceiving the logical form of interpretive sentences (interpretive propositions, or interpretive judgments) do not seem to be adequate. These rules require a stronger commitment. They require the meaning that an interpreter ascribes to a legal provision to be ascribed not just as the “only good” one (which conveys the idea of a partisan evaluation), but, rather, as “the legally correct meaning” of the provision (which conveys the idea of an evaluation from the standpoint of “the law”).
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On the need for a less elliptical form for (what are here) interpretive sentences, some essays by Jerzy Wróblewski have a path-breaking import: see, e.g., Wróblewski (1992), p. 93.
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Six kinds of translation rules can be singled out. Linguistic rules make appeal to the conventions of the language by which legal provisions have been formulated. Intentional rules make appeal to “the intention of the author” of legal provisions, a phrase that, as it is well known, can be understood in many different ways (for instance, the “author” can be identified with the historical legislature, the present legislature, the rational or ideal legislature, etc.). Teleological rules make appeal to the purpose of the law, i.e., of the legal provision self, of the statute in which it is included, of the laws of the sector of positive law to which the provision belongs, etc. Authoritative rules make appeal to the way the legal provision has been interpreted by judicial or juristic “authorities”. Systemic rules (like, e.g., the principles rule I have mentioned in the text) make appeal to other norms of the legal system as data from which the proper meaning of legal provisions can be gathered. Heteronomous rules, finally, make appeal to data like the nature of things or the norms of positive or critical moralities (Chiassoni 2011, ch. 2, where translation rules are referred to as “primary directives”). Systemic concerns can also be at work when method rules are at stake: they typically show up, in particular, in preference rules. This function is typically performed by the interpretive rules known to jurists as “the argument from coherence”, “the argument from consistency”, “the argument from completeness”, “the argument from absurdity or reasonableness”, etc.
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Suppose the interpretive code encompasses an originalist literal meaning rule (“Provisions should be interpreted according to their original literal meaning”). In such a case, the correct combination of interpretive resources will encompass, for instance, what the interpreter considers as the most reliable dictionaries of the relevant natural and/or legal language at the time the provision was enacted.
- 13.
As an instance of integration reasoning, consider the following: “The norm N j is an implicit component of the normative set LS i since it can be derived from N i, which belongs to LS i, by means of the proper integration rule IGR o”.
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See Alchourrón and Bulygin (1971). For instance, given a normative set composed of two norms, N1 (“Citizens ought to pay taxes”, “C –> OT”) and N2 (“Farmers may not pay taxes”, “F –> P¬T”), the set contains an antinomy for the case of citizens being also farmers (or farmers being also citizens): C & F –> OT & P ¬T.
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For instance, “According to what should be regarded as the all things considered correct hierarchy criterion of ideological value (AV), norm P1, being a supreme fundamental principle, is superior to norm P2, which is an ordinary constitutional principle”.
- 18.
On the juristic doctrine of “supreme constitutional principles”, see e.g. Guastini (2011a), pp. 182–186.
- 19.
“Creative interpretation” is sometimes used to refer to a radical instance of (in my terminology) textual interpretation, where the interpreter translates a legal provision into a norm that does not belong to its methodological frame of meanings (see, e.g., Guastini 2011a, pp. 141–142). In my view, one thing is “inventing” a new meaning for a legal provision; another thing is translating that provision by that new meaning to the practical purpose of deciding a case at hand. This is the reason why I present creative interpretation as a form of conjectural, theoretical, interpretation in the proper sense, and not as an extreme variety of textual, practical, interpretation.
- 20.
Clearly, the present notion of methodological conjectural interpretation represents an attempt to take seriously, and consider the theoretical potentialities of, Kelsen’s idea of “scientific interpretation”. See Kelsen (1960), chap. VIII. I will come back to interpretation frames in Chap. 5, Sect. 5.2 below.
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Like, e.g., article 3, paragraph 2, of the Italian Constitution, art. 3 of the European Convention of Human Rights, the “no establishment clause” of the American Constitution, etc.
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Tarello (1980), ch. 2.
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Ronald Dworkin sees “propositions of law”—like, e.g., that “the law forbids states to deny anyone equal protection within the meaning of the Fourteenth Amendment”, “the law does not provide compensation for fellow-servants injuries”, “the law requires Acme Corporation to compensate John Smith for the injury he suffered in its employ last February”—as entities apt for being either true or false. Dworkin’s “propositions of law” are, however, not genuine normative propositions, i.e., empirically true or false statements about existing norms (von Wright 1963, pp. 105–106); they are, rather, sentences that express norms (“normative claims”): individual or general norms, explicit or implicit norms, proposed, invoked, used, applied as “true” in connection with a legal system. The nature of such “propositions” is, more precisely, that of general or individual norms identified by means of constructive interpretation. Indeed, Dworkin makes clear that: “According to law as integrity, propositions of law are true if they figure or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community’s legal practice” (Dworkin 1986, pp. 4–5, 225, italic added; see also Dworkin 2006, pp. 14–15). Like positions are entertained by Patterson (1996), and, concerning law’s “objectivity”, Stavropoulos (1996).
- 29.
See, e.g., Aarnio (1981), pp. 423–448, dealing with the “truth” of “interpretative statements in legal dogmatics”. According to Aarnio, interpretative statements are the outputs of the interpretation of legal texts (which Aarnio characterizes as the activity consisting in “grasping the meaning-content of the text”), and have the form “the content of the legal text is such-and-such”. Clearly, the jurist making such an interpretative statement is claiming that “such-and-such” is the legally correct meaning of the legal text. Accordingly, when Aarnio speaks of juristic “interpretative statements” he is referring to what I here call “interpretive sentences”.
- 30.
See Diciotti (1999), p. 91 ff., 103 ff., 152 ff., 185 ff., 283 ff.
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This is also what John Keats’s Greek Urn tells us: “When old age shall this generation waste, / Thou shalt remain, in midst of other woe/ Than ours, a friend to man, to whom thou say’st, / “Beauty is truth, truth beauty, —that is all / Ye know on earth, and all ye need to know.””.
- 33.
I take formal truth to encompass analytic truth and logical truth. The former depends on the meaning of the descriptive words composing a sentence. For instance, the sentence “All bachelors are unmarried men” is analytically true in the English language, because “bachelor” means “unmarried man”. The latter depends on the meaning of logical terms (“and”, “or”, “not”, etc.) and on the structure of the sentence. For instance, any complex sentence of the form “A v ¬A” (“It rains or it does not rain”) is logically true, while any sentence of the form “A & ¬A” (“It rains and it does not rain”) is logically false. Interpretation-outputs, as discourse entities, are apt for formal truth and falsity, for they can be tautological or self-contradictory. Austere alethic pluralism is the mark of logical positivism and empiricist epistemology. See e.g. Ayer (1952), von Wright (1951). On (broad) alethic pluralism, see, e.g.: Pedersen and Wright (2012): “‘Pluralism about truth’ names the thesis that there is more then one way of being true”; Pedersen and Wright (2013), ch. 1; Wright (2013), ch. 7; Wright (2001), pp. 751–787; Lynch (2001), pp. 723–749; Lynch (2009), pp. 1–6, 159 ff. By focussing on empirical, pragmatic and systemic truth, I leave out at least a fourth candidate: namely, the so-called consensus theory of truth. This holds, very roughly speaking, that a theoretical or practical claim is true, whenever it commands the universal assent of rational agents in an ideal reflexive context. It must be noticed, however, that Jürgen Habermas, perhaps the most prominent supporter of consensus theory in contemporary philosophy, from the late 1990s has come to distinguish between the “truth” of descriptive sentences, which depends on the objective world, on the one hand, and the “normative correctness” or “deontological validity” of moral judgements and moral norms, which depends, contrariwise, on their justifiability according to the “discourse principle”, on the other (“A rule of action or choice is justified, and thus valid, only if all those affected by the rule or choice could accept it in a reasonable discourse”: Bohman and Rehg 2014, § 3.4; see Habermas 1999, ch. 6). By the way, if we stop to reflect upon the reason which a rational agent may have to accept a rule of action or a choice as “normatively correct” or “deontologically valid”, this has likely to do with the rule or choice being in tune with her ultimate practical principles and/or her preferred goals. In this way, consensus theory of normative correctness or deontological validity seems to boil down to a variety of pragmatic or systemic correctness. In order to “set the tone” concerning broad alethic pluralism, it may perhaps be worthwhile quoting a remark by Alfred Tarski: “In modern philosophical literature some other conceptions and theories of truth are also discussed [besides the classic, semantic or correspondence theory, ndr], such as the pragmatic conception and the coherence theory. These conceptions seem to be of an exclusively normative character and have little connection with the actual usage of the term “true”” (Tarski 1969, p. 64; Tarski 1944, pp. 348–349).
- 34.
In the well known words of Aristotle: “Saying of what is that it is not, or of what it is not that it is, is false […] saying of what is that it is, or of what is not that it is not, is true” (Aristotle, Metaphysics, 1011b, 25–26). Aristotle’s passage is commonly regarded as one of the oldest and clearest formulations of the ordinary or classic conception of truth. Tarski set forth to obtain, with the aid of the techniques of contemporary logic, a “more precise explanation of the classical conception of truth, one that could supersede the Aristotelian formulation while preserving its basic intentions”; as it is well known, Tarski’s view is centred on “the equivalence of the form (T)”: “(T) X is true if, and only if, p”, where “p” stands for any sentence in a language and “X” stands for the name of that sentence (“The sentence “snow is white” is true if, and only if, snow is white”): Tarski (1969), p. 64 ff.; Tarski (1944), pp. 334–336; Quine (1986), pp. 35–46.
- 35.
See von Wright (1951), pp. 13–15.
- 36.
Physical law: “Water boils at 100°C”; experience rule: “Murderers always go back to the place of the crime”; general descriptive sentence: “Ravens are black”; explanatory sentence for a complex phenomenon: “Law is composed of norms”.
- 37.
From this perspective, then, the notion of truth as coherence and the notion of truth as correspondence do not represent the core of two opposed and irreconcilable theories of truth. The opposition arises whenever the idea of coherence is part, for instance, of an idealistic conception of truth. On this point, see Quine (1987), p. 212 ff. See also Carnap (1936), pp. 119–127.
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- 39.
In the text, I understand singular predictive sentences as sentences of the form “It is (now) probable that ƒ will occur at time t”, or, less precisely, “ƒ will probably occur at time t”. This is the logical form suggested by von Wright (1951), pp. 13–31; von Wright (1984b), pp. 1–13. Predictive sentences as they occur in ordinary language, however, can also be understood as propositions about contingent future events, of the form “ƒ will occur at time t” (“Tomorrow there will be a sea battle”). In such a case, they can be considered as liable to a double check: an ex ante assessment in terms of adequate empirical and theoretical support, and, furthermore, an ex post assessment in terms of empirical fulfilment. See, e.g., MacFarlane (2003), pp. 321–336.
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On pragmatic theories of truth see e.g. Lynch (2001), Part III.
- 42.
According to a passage of John Dewey, ideas and theories are true if they are “instrumental to an active reorganization of the given environment, to a removal of some specific trouble and perplexity […] The hypothesis that works is the true one” (J. Dewey, Reconstruction in Philosophy, 1920, 156, quoted by Davidson 2005, 8, note 3). Burgess and Burgess (2011), p. 3, characterize the “Pragmatist or utility theory” of truth, among the “traditional theories”, as claiming that “A belief is true iff it is useful in practice”. Dewey, however, also conceived of “truths” as being “in the keeping of the best available methods of inquiry and testing as to matters-of-fact; methods, which are, when collected under a single name, science” (J. Dewey, Experience and Nature, 1958, 410, quoted by Davidson 2005, 7, note 1). Furthermore, he also manifested his assent to Peirce’s ideal and universal agreement criterion of truth: “The best definition of truth from a logical standpoint which is known to me is that of Peirce: “The opinion which is fated to be ultimately agreed to by all who investigate is what we mean by the truth”” (J. Dewey, Logic: The Theory of Inquiry, 1938, 58, quoted by Davidson 2005, 8, note 3).
- 43.
As we shall see in a moment, coherence (non-logical compatibility) comes in several varieties including instrumental compatibility, teleological compatibility and ideological compatibility.
- 44.
As it appears in the text, the notion of systemic truth I am using here is parasitic to the notion of “truth as coherence”. It is meant to be wider, and more precise, than it, though. A system may consist, for instance, in the totality of the logical consequences of a certain finite set of axioms (on this point, concerning normative systems, see Alchourrón and Bulygin 1975, pp. 85–86). In such a case, if the axiomatic basis of the system contains logically inconsistent sentences, a derived sentence can be “true” from the standpoint of its logical derivation from one of the system’s axioms, and at the same time be inconsistent with some other element of the system (concerning normative system, Caracciolo 1988, p. 59). A coherence theory of truth claims that “A belief is true iff it coheres with other ideas” (Burgess and Burgess 2011, p. 3). According to Otto Neurath and Carl G. Hempel, “a proposition is “true” within a given system if it is consistent with the rest of the system, but there may be other systems, inconsistent with the first, in which the proposition in question will be false” (see Russell 1940, p. 140, where he also makes clear that the “Hegelian” variety of the coherence theory of truth claims, contrariwise, that “only one body of mutually coherent propositions is possible”). On coherence theories of truth see e.g. Lynch (2001), Part II; Young (2008).
- 45.
For this notion of a deductive normative system I have got inspiration from the idea of axiomatic deductive system set forth in Alchourrón and Bulygin (1975), ch. IV. Talking of the basis of a normative system, Alchourrón and Bulygin say that it can be made of sentences “contained” in a code or in a statute, or “extracted” from judicial decisions, or even “coming from Natural Law” (Alchourrón and Bulygin 1975, p. 98). Furthermore, they claim they are not suggesting norms to be tantamount to normative sentences, that is, to “linguistic entities”, but only that “norms”, whatever their ontological status, “can be expressed by means of language” (Alchourrón and Bulygin 1975, p. 99, italics in the text). In the quoted passages, they do not seem to draw a sharp line between norms and normative provisions. As we shall see in a moment, the distinction I outline between deductive and rhetorical normative systems turns, contrariwise, on drawing a sharp distinction between sentences that are norms and sentences that are normative provisions, i.e., texts apt to express norms by means of interpretation. On this distinction, see Conte (1957), p. 10; von Wright (1963), p. 93, who distinguishes between “norms” and “norm-formulations”.
- 46.
Of course, those who think the rules of logical inference to be a “necessary” part of any normative system would contest this assertion of mine (see, e.g., Kalinowski 1978). I will not consider their claim here.
- 47.
Assume, for instance, that among the axioms of the system there is the rule “All thefts worth up to 39 schillings shall be punished with a two-months period of socially useful work”; assume, furthermore, that among the transformation rules feature syllogisms and the possibility of introducing any assumption necessary to make those inferential schemes work. If an authorized player (say, a judge), assumes that “All thefts worth £ 10 are thefts worth up to 39 schillings”, then the new rule follows, according to which, “All thefts worth £ 10 shall be punished with a two-months period of socially useful work”. The fact that, according to common sense, a £ 10 theft is not worth “up to 39 schillings”, but much more, is totally irrelevant to the systemic correctness of the derivative norm.
- 48.
Throughout the book, I assume norms to be linguistic entities.
- 49.
- 50.
By the way, the compatibility test is likely to be applied in relation, not to the rhetorical system of norms as a whole, but, rather, to just one definite subset of the whole norms of the system, which interpreters and users consider more valuable, or of a higher standing, than the norm to be assessed. Going roughly down the same path as Dworkin’s, Michael Lynch characterizes the truth of “propositions of law” not in terms of correspondence with an independent, objective, reality (“it is unlikely that they are true in virtue of referential relations with mind-independent objects and properties”), but in terms of coherence (“we think that a proposition of law is true when it coheres with its immediate grounds and with the grounds of propositions inferentially connected to it. In short, legal truth consists in coherence with the body of law”), and, more precisely, following Crispin Wright’s idea of “superassertibility”, in terms of “supercoherence” (“Thus perhaps what makes a proposition of law true is that it durably or continually coheres with the body of law […] In short, juridical truth might turn out to be realized by “supercoherence” with the body of law, where a proposition can fail to have this property even if it coheres with the law in the short run, or coheres with judicial decisions that are later overturned”): Lynch (2001), p. 736, 737, 738. The idea that truth, in the realm of ethics, is truth “as coherence” is endorsed by Quine (Quine 1978, p. 63: “Science, thanks to its links with observation, retains some title to a correspondence theory of truth; but a coherence theory is evidently the lot ethics”) and adopted by Dorsey (2006), pp. 493–523.
- 51.
It is noteworthy, in passing, that instrumental coherence can also be used as a criterion for that sort of “material derivation” of a norm from another norm that goes under the name of “concretization”. Concretization consists in “deriving” fairly precise rules of conduct from broad principles. How can such a “derivation” be rationally performed? One possibility is, precisely, that the concretizing norm bears an instrumental coherence relationship to the concretized norm.
- 52.
The idea of a deductive normative system presupposes a positive answer to the overwhelming question about the possibility of a logic for norms. I will content myself with such presupposition, avoiding any attempt to deal, here, with that thorny issue.
- 53.
- 54.
- 55.
On interpretive cognitivism in Western legal thought, see e.g. Chiassoni (2016a), pp. 565–600.
- 56.
For an accurate defence of moderate cognitivism, see Sucar (2008), ch. 1, § 2, and pp. 362–375.
- 57.
Properly speaking, our legal orders have a complex structure. They are dynamic-formal systems, so far as the production of authoritative legal texts—at the several levels (constitutions, statutes, judicial decisions)—is concerned. They are static-rhetorical systems, so far as the identification of explicit and implicit norms, together with their relative institutional value, is concerned. As I said (Sect. 2.3.3.2 above), they can also be conceived as deductive-rhetorical systems: either from the standpoint of law-applying organs, or from the standpoint of juristic systematization of previously identified norms, along the lines suggested, by way of rational reconstruction, by Alchourrón and Bulygin (1971, chs. I–IV).
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- 59.
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Chiassoni, P. (2019). Interpretation, Truth, and the Logical Forms of Interpretive Discourse. In: Interpretation without Truth. Law and Philosophy Library, vol 128. Springer, Cham. https://doi.org/10.1007/978-3-030-15590-2_2
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