Abstract
In his definition of interpretation, Kelsen1 gave a decisive critique of the “strict positivist” method: “If ‘interpretation’ is understood as cognitive ascertainment of the meanings of the object that is to be interpreted, then the result of a legal interpretation can only be the ascertainment of the frame which the law to be interpreted represents, and thereby the cognition of several possibilities within the frame; “continuing” jurisprudential interpretation must carefully avoid the fiction that a legal norm admits only of one as the ‘correct’ interpretation. Traditional jurisprudence uses this fiction to maintain the ideal of security”.2
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References
H. Kelsen, Pure Theory of Law, University of California Press, 1967, trans., 2nd. ed. 1960, p. 381.
H. Kelsen, op. cit., p. 356.
A. Aamio, The Rational as Reasonable, A Treatise on Legal Justification, D. Reidel Publishing Company, 1987, p. 67 ff. Also, Argumentation Theory and Beyond, Rechtstheorie 1983, p. 385 ff.
R. Dworkin, Law’s Empire,Fontana Press, 1986, preface VII.
R. Dworkin, “Le positivisme”, Revue de Droit et Société, LGDJ no. 1, 1985, p. 36. “I wish to attack positivism in general, taking as my target Hart’s version… I shall maintain that positivism is a model of and a system of mles and that the central idea in that doctrine, that there is some single, fundamental test of law, stops us seeing the important role of standards which are not mles.”
See also Archives de philosophie du droit n. 17, “L’interprétation dans le droit”, Sirey, 1972. In particular H. Batiffol, “Questions de l’interprétation juridique”, p. 10 ff.. See also M. Villey, “Méthodes classiques d’interprétation du droit”, p. 85 ff., and M. Sbriccoli, “Politique et interprétation juridique dans les villes italiennes du Moyen-Age”, p. 101 ff. and Ph.I André Vincent, “L’abstrait et le concret dans l’interprétation”, p. 135 ff.
A. Aamio, Paradigms in Legal Dogmatics. Towards a theory of change and progress in legal science, in legal theory and philosophy of science,Lund, Sweden, ed. by A. Peczenick, Lars Lindahl, B. van Roermund, D. Reidel Publishing Company, 1984.
T. Kuhn, “Structure of Scientific Revolutions”, p. 7 in A. Aamio, op. cit.
Demolombe in L. Husson, “Analyse critique de la méthode de l’exégèse”, Archives de philosophie du droit no. 17, Sirey, 1972, p. 119.
F. Gény, “Méthode d’interprétation et sources en droit privé positif”, LGDJ, 1932, 2nd edition, p. 220.
From 1979 to 1986 the University of Macerata has annually held conferences on the act of interpretation and the creative element it incorporates. By way of example, let us mention: a) Atti del I Colloquio sulla interpretazione, Macerata, 19–20 April 1979 - edited by G. Galli, Interpretazione e contesto. In particular: G. Galli, “Interpretazione come argomentazione nella esperienza giuridi ca intermedia”, p. 47 ff. G. Crifo, “Interpretazione giuridica di testi non giuridici” (Esemplificata con un aspetto dei rapporti tra Cicerone e il diritto romano), p. 64 ff.
Atti del HI Colloquio sulla interpretazione, Macerata, 6–7 April 1981 - edited by G. Galli, Interpretazione e valori. In particular G. Ferretti, “Interpretazione e valori: appunti per una teoria generale”, p. 180 ff.
Atti del IV Colloquio sulla interpretazione, Macerata, 29–30 March 1982 - edited by G. Galli, Interpretazione e dialogo., In particular, R. Bertalot, “Interpretazione e dialogo nell’esperienza giuridica”, p. 23 ff.
d) Atti del VII Colloquio sulla interpretazione, Macerata, 25–27 March 1985 - edited by G. Galli, Interpretazione ed epistemologia. In particular: G. Galli, “Approccio sistemico allo studio dell’interpretazione testuale”, p. 10 ff. L. Mengoni, “Ermeneutica e dogmatica nella scienza giuridica”, p. 101 ff. F. Barone, “Teoria e osservazione nel dibattito epistemologico”, p. 147 ff. (this text offers an extremely interesting conspectus of the history of the philosophy of science in connection with the concept of “fact”).
See for instance P. Amselek, Théorie des actes de langage, Ethique et droit, P.U.F. 1986 (edited by P. Amselek)., p. 109 ff. Likewise, M. Van de Kerchove, “La théorie des actes de langage et la théorie de l’interprétation juridique”, in Théorie des actes de langage, Ethique et droit, op. cit., p. 211 ff.
Every legal practitioner, ceaselessly asserting that “a bad settlement is worth more than a good trial” and thereby reflecting the uncertainty of the verdict in any legal proceedings, ought readily to accept this postulate! This definition also allows us to avoid the very burdensome argumentation, to he found in Austin, Hart and their ilk, about “open textured” rules of law and the resulting conception of the discretionary powers of judges.
Which are, or should be “clear”. Where the texts of laws are not clear, the judge would exercise discretionary powers; cf. Van de Kerchove, op. cit., p. 224 ff. Also R. Dworkin,“ Le positivisme”, op. cit., pp. 42–43.
G. Tarello, Trattato di diritto civile e commerciale, I vol. 2, “L’interpretazione della legge”, Milan, Giuffrè, 1980, reminds us that in the whole of the early modern period - the 16th to 18th centuries - interpretation was the outcome of the activity of commentaries by doctors and the activity of decisions of courts. Interpretation was recognized as having the value of law, but only for all questions not directly organized by the “lex” at that time constituted by the body of Roman Iaw and enactments of sovereigns. This principle was thus a principle of hierarchy of sources, which ruled out recourse to the right of interpretatio in cases directly dealt with by lex. It expressed a form of organization of power between the central power and the kingdom. Following the Napoleonic codification and the creation of the Nation State, interpretatio no longer had value as a source of law and took on the meaning we know today: attribution of meaning to legislative documents. From a principle of legal organization, this principle became a principle of statement of law. Power was no longer structured in the same way; the principles of separation of power and sovereignty of the legislature were aimed at confining the judiciary in a subordinate role: a judge should never (and never shall) create law. Exegesis stated that “in clans non fit interpretatio” means that the text has its own meaning sufficient to itself, and accordingly laid down a number of techniques of interpretation. So-called declarative interpretation (whether restrictive, “interpretation a contrario”, or extensive, “interpretation by analogy”) suggests that the legislative discourse has a principal meaning of its own independent of the person implementing it. When the method of exegesis was falling into decline, which corresponds to the time of transition from the liberal State to the social State, the interpretations known as creative and abrogative appeared.
G. Tarello, op. cit.
E. di Robilant, “Prospettive sul ruolo del giurista nella società tecnologica della nuova Europa”. Materiali per una storia della cultura giuridica, December 1980, no. 2, p. 509 ff: “Riservare la denominazione ‘scienza giuridica’ ai tentativi di rappresentare, ridurre a unità e spiegare i fenomoni che vengono indicati generalmente come diritto; vale a dire a quell’attività prettamente conoscitiva, diretta a produrre teorie… viene indicata come scienza. Tecnologia: l’attività rivolta a chiarire che cosa si debba fare qualora si vogliano ottenere determinati risultati all’interno dell’ordinamento giuridico” (p. 510). Likewise, L. “Ferrajoli, La formazione e l’uso dei concetti nella scienza giuridica e nell’applicazione della legge”. Materiali per una storia della cultura giuridica, Volume XV - no. 2, December 1985, p. 403 ff.
C. Perelman, “Logique formelle et logique informelle” in De la métaphysique à la rhétorique, ed. M. Mayer, 1986, Edition de l’Université de Bruxelles, p. 17.
“I ask the reader to accept, with Benveniste and Jakobson, Austin and Searle, that the primary unit of meaning in discourse is not the sign in the lexical form of the word, but the sentence, i.e. a complex unit linking a predicate to a logical subject, or using P. Strawson’s categories, joining an act of characterization by predicate and an act of identification by position of the subject.” P. Ricceur, “Rhétorique, Poétique, Herméneutique”, in M. Mayer, op. cit. p. 143.
For instance: “following the text, step by step, may flatter himself at thus more easily discovering the thought of the legislator”, Demolombe, Cours de Code Napoléon, preface, p. VI; see also Geny, who, opposing this method, said: “the legislator’s thinking is not enough in itself to reveal (our emphasis) the solution sought for”, Geny, op. cit., p. 127.
G. Tarello, op. cit., p. 89
In the last part of this article we shall retum to the question. We may nevertheless say here that the historian’s method, or the legal historian’s specifically, will not be seen by us as different from the jurist’s.
We shall see that they always are, and try to say why and how.
J. Ladrière, “Logique et argumentation”, in M. Meyer, op. cit., p. 24 ff.
N. MacCormick, “Coherence in Legal Justification”, in Theory of Legal Science, Proceedings of the conference in legal theory and philosophy of science, Lund, Sweden, December 1983, Ed. by Peczenik, Lars Lindahl, B. van Roermund, D. Reidel Publishing Company, Dordrecht, 1984.
See also, Barabara Baum Levenbock, “The Role of Coherence in Legal Reasoning”, Law and Philosophy (An international journal for jurisprudence and legal philosophy), Volume 3 no. 1, 1984, p. 355 ff.
“A common subservience by a set of laws to a relevant value or values”, N. MacCormick, op. cit., p. 237.
In MacCormick, the natural-law hypothesis is always very clearly stated.
The definiton we have given of law - an interpretive concept - condemns us to this in any case.
For instance, Law’s Empire, p. 87 “law is an interpretive concept. Judges normally recognize a duty to continue rather than discard the practice they have joined. So they develop, in response to their conviction and instincts, working theories about interpretation of their responsibilities under that practice. When they disagree in what I called the theoretical way, their disagreements are interpretive”. Or again, p. 139 “a conception of law is a general abstract interpretation of legal practice as a whole”. See also, A Matter of Principle, a collection of texts that systematically deals with law as an interpretive concept, e.g.: “Is there really no right answer in hard cases?”, “How law is like literature”, “On interpretation and objectivity”.
See the presentation of Dworkin given by M. Troper in Droit et Société, no. 1, p. 27 ff.
R. Dworkin, Law’s Empire,op. cit., p.13: “This crucial argumentative aspect of legal practice can be studied in two ways from two points of view. Extemal: sociologist or historian. Intemal: of those who make the claim. Their interest is not finally historical… They do not want predictions of the legal claims they will make but arguments about which of their claims is sound and why.” p. 14 “This book takes up the internal…”.
For instance, Law’s Empire, p. 19 “since a statute forms part of a larger intellectual system - the law as a whole - it should be constructed so as to make that larger system coherent in principle”, also p. 243 “law as integrity asks judges to assume, so far as this is possible, that the law is structured by a coherent set of principles about justice and fairness and procedural due process”. This passage does seem to authorize the linkage we make between this author and MacCormick, and indeed the terms used by both are sometimes even identical
The way the rule of politeness is presented (Law’s Empire, p. 47) is characteristic of this: “people now try to impose meaning on the institution - to see it in its best light - and then to restructure it in the light of that meaning. The two components of the interpretive attitude are independent of one another”.
In, Is there really no right answer in hard cases?, in A Matter of Principle, op. cit., p. 135, R. Dworkin says: “law is an enterprise such that propositions of law do not describe the real world in the way ordinary propositions do, but rather are propositions whose assertion is warranted by ground rules like those in the literary exercise”. We shall return at greater length to the epistemology underlying this conception; let us merely note, as it were by way of prelude, on the one hand the existence in this author of “hard facts”, and on the other the absence of questions about their existence, even in the very operation of interpretation. For instance, in the same article, p. 137, we find: “… the demonstrability thesis: this thesis states that if a proposition cannot be demonstrated to be true, after all the hard facts that might be relevant to its truth are either known or stipulated, then it cannot be true. By ”hard facts“ I mean physical facts and facts about behaviour (including the thought, and attitudes) of people…”
This point nevertheless remains rather confused in Dworkin. If not evolution of his thought, there has in any case at least been qualification, renewal and subsequent retouching. Indeed, he seems to circle the question of the construction of facts without ever wishing to deal with it, with sometimes a few assumptions that are adventurous by comparison with his theoretical foundation: “Someone might say that my position is the deepest possible form of scepticism about morality, art, and interpretation because I am actually saying that moral or aesthetic or interpretive judgements cannot possibly describe an independent objective reality. But that is not what I said. I said that the question of what ‘independence’ and ‘reality are, for any practice, is a question within that practice…” “On Interpretation and Objectivity”, in A Matter of Principle, op. cit., p. 175.
We also find this metaphor, let us recall, in legal interpretation as defended by positive methods, where the point is to discover what the rules of law are “telling” us. See also p. 5 above.
Law’s Empire, op. cit.,p. 52. We shall return to this point. Let us note here that we accept the first point, but shall deal with the third differently.
Or for instance the rule of politeness: by what might one immediately and unmistakenly recognize it?
Here we find the famous hermeneutic circle: “one must end up with a theoretical assumption that it is impossible to pronounce on anything whatever without having a preconceived opinion of it”, Stig. Jorgensen, Theory of Legal Science, Lund Conference, op. cit., p. 123. We know Gadamer s work on the notion of “prior knowledge”.
Stig Jorgensen reminded us of the parable of the seven sages describing an elephant. This parable shows that “our cognition is fragmentary, delimited by our ability to grasp reality and the instruments we are using in the cognitive process and by the interests which are lying behind. It is obvious that we do not get an answer to questions that we have not yet asked and we get the answers that our instruments are capable of providing.”- Stig Jorgensen, ibid.
P. Veyne, Comment on écrit l’histoire, suivi de Foucault révolutionne l’histoire, Editions du Seuil, Collection Point, 1978.
N. MacCormick, O. Weinberger, “The Institutional Theory of Law”, New Approaches to Legal Positivism, D. Reidel Publishing Company, Dordrecht, 1986.
N. MacCormick, O. Weinberger, op. cit., p. 7.
To the interpreter’s present situation, as Gadamer clarifies, op. cit., p. 149
The author states that the close interdependence that originally linked philological hermeneutics to legal hermeneutics and theological hermeneutics was based on recognition of application as an integral part of all understanding.For instance, a law would have to have its legal value made specific through interpretation.
E. Betti, Teoria Generale dell’interpretazione, Milano, 2 vols., 1956.
H.G. Gadamer, op. cit., p. 150. The work surrounding the Betti/Gadamer debate and the former’s influence on the latter have been and still are very important, not only on the old continent. See e.g.: “Comparative Normative Hermeneutics: scripture, literature
R. Dworkin’s work lacks any analysis of the function we call cognitive; which is obviously not without implications for the problem of the “principles” he seeks to discover through the normative order, defined as a narrative coherence. Narrative, because there is an account - but of rules. As against this, we will speak of narrative coherence specifically to describe the unity between the normative function and the cognitive function.
The definition given of history in P. Veyné s marvellous book Comment on écrit l’histoire op. cit.
Taking the term from R. Dworkin, “How Law is like Literature” p. 146 ff. in A Matter of Principle, op. cit., Law’s Empire, op. cit.,pp. 228–275.
“And not invent a better one”; R. Dworkin in How Law is like Literature, op. cit., p. 160. The idea, which has been constant for centuries, that the judge ought not to “invent” anything whatever is one of the major consequences of the theory of the separation of powers according to which only the legislature is justified in making laws. The application of law ought not, therefore, to resemble creation (invention) of law.
It is perhaps a bit excessive, too, to limit the question of application of law to the judge’s function alone. Legal scholarship, in proposing - as we have said - a meaning for a law carries out an “application” of law since its normative content, when it comes to interpreting, must be determined from contact with the specific case to which it is claimed to apply.
“A description of works, even an analytical one, even a critical one, would be incapable of bringing out the intimate life of the science of Civil Law in France, the principle of development that has for more than 120 years made it evolve to the point of becoming
This verb systematically recurs to state what the operation of interpretation ought not to consist of. Montesquieu, L’esprit des lois, XI, 6: “the judges of the nation are only the mouth that utters the words of law, inanimate beings that can moderate neither its force nor its rigour”.
Let us now give the definitive definition of the concept of law (see p. 10): the interpreter finds (as far as the past, remote or not, is concerned) and decides or proposes the meaning to be attributed to a document, consisting of one or more statements, the meaning of which does not pre-exist the interpreter’s activity but is its product. Before the activity of interpretation, the document that is its object expresses one or several “norms”, understood as the meaning that has been given or been decided to be given or been proposed to be given to a document.
The structure of the judiciary, through its hierarchicalization, is an essential aspect of legal coherence, and also of legal culture: legal practitioners learn that the law is “a system of norms”, which are “preconstructed” and grouped into a “complete system”. The idea suggests itself that all legal argumentation consists of a normative statement, which is a formal document of legislation, or the highest formal document in the hierarchy of sources… See Tarello, op. cit.
For L. Mengoni, Gadamer on the contrary went too far, for three reasons. Firstly, because the historian must always be ready to break off the hermeneutic approach carried out with models of his experience if it does not meet the “expected conditions of meaning”. But the objection we might make to Mengoni would be: How does one know whence this “expected meaning” comes? The second criticism relates to the term used by Gadamer to designate mediation between past and present, “application”, on the grounds that this term has a very marked meaning in legal science. However, the whole question is what the activity of interpretation in legal science or in history embodies. Having shown the respect in which this activity is similar for the two disciplines, we feel that the use of the term is perfectly justified. The third and last criticism of Gadamer by Mengoni takes up Betti s thesis of the difference between different types of interpretation, asserting that contrary to historical interpretation, legal interpretation is normative. We think the rejection of this distinction, and the justification given for that by Gadamer are entirely convincing. L.Mengoni, “Ermeneutica e dogmatica nella scienza giuridica”, Atti del VII Colloquio sulla interpretazione, Macerata, op. cit., p. 116.
J.M. Broekman also picked up this point, “Changes of Paradigm in the Law”, in Theory of Legal Science (Conference of Lund), op. cit., p. 141: “Reality is said to be present in the files on the desk of the judge. Reality is said to be mirrored in those pages but it is not expressed in how far the legal reality is produced throughout the textualizing processes. The rules concerning the application of norms to situations are rules referring to texts.”
P. Ricmur, op. cit., p. 76. This hermeneutic approach particularly illuminates P. Bourdieú s work, which shows how the judge is condemned to “create neutrality”. This neutrality is the outcome of mediation: “the judicial situation acts as a neutral point, bringing about a genuine neutralization of the issues through distancing and rendering them unreal; this is what the transformation of the confrontation of the interested parties into a dialogue between mediators implies” (p. 9). It is because the interpretive act is itself creative that structures and rules are elaborated, whose goal is to efface that creation, to make it invisible. Legal language itself takes part in this obscuration: “(legal language) which, by combining elements taken directly from common language and alien elements into a system, bears all the marks of a rhetoric of impersonality and neutrality” (p. 15 in P. Bourdieu, “La force du droit, éléments pour une sociologie du champ juridique”; Actes de la Recherche en Science Sociale, Septembre 1986, pp.3–19).
See also J.M. Broekman, op. cit., p. 142: “The texts form a topology of the legal paradigm. This textuality is not a linear phenomenon and the textual character of legal discourse is not characterized by linearity… The legal dogmatic paradigm is characterized by the fact that it transforms narrative structure into linear products.”
The legal fact is no exception to this rule; we refer, for instance, to G. Farjat, who (justifiably) complains of the absence of rules in economic law and the absence of… economic facts. Droit Economique, PUF.
Or determined, which is sometimes a problem, for instance in economic law or with the practices of trusts, subsidiaries etc.
R. Dworkin, “Is there Really no Right Answer in Hard Cases?” in A Matter of Principle, op. cit., p. 139.
Dworkin’s metaphor of the chain of novelists writing the same novel in succession, applied to the what judges do, therefore has something in it, we feel.
Creative imitation, through this notion of model, might also be a rule of argumentation of authoritarian type (decision of a higher court to be imposed on inferior ones); we find this argument in both “common law” and “codified law.”
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Nerhot, P. (1990). Interpretation in Legal Science. In: Nerhot, P. (eds) Law, Interpretation and Reality. Law and Philosophy Library, vol 11. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-7875-2_11
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