Abstract
In the previous four chapters, I have attempted to present a view of the law according to which the constitution plays a decisive role in the determination of the truth-value of legal propositions. In particular, it may be the case that the norm expressed by a provision issued by a subconstitutional authority, and which stipulates that certain persons have certain rights or obligations, does not belong to any of the legal systems of that legal order, because, e. g., it has been issued by an incompetent authority. Thus, norms that have been enacted but whose origin cannot be traced back to other norms do not belong to any of the systems of the respective legal order. In addition to this, constitutions also determine a range of matters for which subconstitutional authorities are definitively incompetent: these are all matters regulated in a way that is inconsistent with the constitution, as well as those that do not fit to what I have earlier called the thesis of constitutional accessibility.
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References
For two interesting contributions to such problems with texts cf. Amar (1987) concerning the Constitution of the United States, and Vallejo (1993–1994) concerning the Spanish Constitution of 1869.
In Spain, Hernandez Marín (1984, 11 ff., 1989, 49 f.; cf. also Braybrooke 1989, 289) has defended a radically inscriptionist conception of legal norms, based on a nominalist philosophy of language. But even if one concedes that legal norms are nothing but texts — token-sentences — what matters is how they should be interpreted. Unfortunately, whatever the result of that controversy about the ontology of language, there will still be the more important question of how to construct a theory of constitutional interpretation.
One could say that meta-languages have syntactic priority over their object-languages. But in order to distinguish between language and meta-language, we need a minimum of interpretive activity which renders even that weak priority questionable.
Or as Begriffsjurisprudenz or mechanical jurisprudence, etc. Cf. Jhering 1854, Pound 1908. Interesting presentations of formalism can be found in Bobbio 1965, Schauer 1988.
In a recent article, Moore (1992a) has distinguished those kinds from the kinds now called functional (predicates referring to artificial objects created by man). Putnam (1975, 242–244) had extended his conception in order to include the names of artefacts created by human beings in his theory.
See the critique of moral realism in Mackie 1977a and Harman 1977 and the recent defence in Brink 1989 and Smith 1994.
Moore (1985, 312) defends a kind of coherentist epistemology for the justification of particular judgments. To him, such a theory seems compatible with a realist theory of truth (truth as correspondence).
Cf. the rulings of the Spanish Constitutional Court of June 27, 1990 and July 19, 1990 as well as Atienza 1993, chap. 4.
As Hart says (1983, 137): „He [Dworkin] is, if he and Shakespeare will allow me to say so, the noblest Dreamer of them all, with a wider and more expert philosophical base than his predecessors, and he concentrates formidable powers of argument on defence of his theory.“
For this evolution, cf. Raz 1986a.
This is a revision of Dworkin 1977b.
As we will see, Dworkin thinks these rules are insufficient. But in a certain sense, they are excessive: according to them, many irrelevant consequences will be true. Let’s assume the proposition expressed in the sentence `David attended Salem House or visited Barcelona’. Since the negation of that proposition is inconsistent with something Dickens said — namely, that David did attend Salem House —, according to rule (1) it is true. Here too, the notion of relevant logical consequence, introduced in Chapter I, is useful to restrict the exercise of literary criticism to those propositions stated by Dickens, and their relevant logical consequences.
A recent reconsideration of these arguments, which will not be discussed here, can be found in Dworkin 1996a, 1996b.
For a projectivist conception of moral judgments cf. Blackburn 1984, 197–202.
I will not go into another way of looking at Moore’s theory here: Schauer (1991, 215–218; cf. Bix 1993, 154–157) has suggested an interpretation of Moore’s conception not as a metaphysical and semantic theory, but as a normative theory of rule-application according to which rules should be applied in accordance with their purpose (a theory similar to that of Fuller 1969) rather than in accordance with their meaning.
For a funny and instructive discussion of this matter, cf. the novel by Julian Barnes, Flaubert’s Parrot, London: Jonathan Cape 1984, ch. 6.
J. L. Borges has given a brilliant representation of this conception of literary criticism in his `nueve ensayos dantescos’ (1982), in: Obras completas, vol. IV, Barcelona: Circulo de Lectores 1993, 253–255. In discussing the interpretation of verse 75 of the penultimate canto of Hell in the Divina Commedia, where Ugolino de Pisa, after speaking about the death of his sons in the Prison of Hunger, says Poscia, più che’l dolor, potè it digiuno’, Borges admonishes us not to confuse art with reality. It is a historical question — now impossible to ascertain — whether Ugolino ate his sons’ flesh; and the interpretation of Dante’s Ugo-lino can remain indeterminate on this point (i. e., indeterminate between the possibility that he did eat his sons’ flesh or that, while the pain did not kill him, hunger did), and according to Borges, that is the best interpretation of this verse of Dante’s. In Borges’s own words (ibid., p. 235): „In real time, in history, whenever a man has several alternatives, he chooses one and eliminates and loses the others; this is not so in the ambiguous time of art which resembles that of hope and that of oblivion ... In the darkness of his Tower of Hunger, Ugolino does, and does not, devore the beloved corpses, and this oscillating imprecision, this uncertainty, is the strange material it is made of.“
Obviously, there are many other interesting theses in Dworkin that deserve discussion. I will mention only two: the strange nature of Dworkin’s legal propositions which, at the same time, describe what the law stipulates and prescribe how we ought to behave (cf. Bulygin 1982a); and his questionable insistence on the virtue of consistency that leaves no room in his theory for the incommensurability of values (cf. Mackie 1977b, Finnis 1987, Raz 1992, and a defence parallel to that of Dworkin in Hurley 1989, 193–212).
This is how one can understand Holmes’s famous phrase (Holmes 1920, 173): „The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.“
Cf. the presentations of American legal realism in Tarello 1962, Summers 1982.
For the relationship between American legal realism and Critical Legal Studies, cf. Casebeer 1977, Schlegel 1979, Gordon 1982, Livingston 1982, Tushnet 1986, Altman 1986, Pérez Lledó 1996, ch. IV.
Cf., for example, Kennedy 1979, Kayris 1982, Unger 1983, Kelman 1987, Calsamiglia 1992, Carrino 1992, as well as a defence of liberalism against these critiques in Altman 1990.
Cf., for example, Caracciolo 1982 — who at an early time already pointed out some of the skeptical conclusions from Wittgenstein’s reflections on rule-following for legal theory —, Tushnet 1983, Yablon 1987, Langille 1988, Patterson 1992a.
Cf. also another example of a representative of Critical Legal Studies: Tushnet (1983, 822 — taken from the Wittgensteinian Winch 1958, 29–32): „Consider the following multiple choice question: `Which pair of numbers come next in the series 1, 3, 5, 7? (a) 9, 11; (b) 11, 13; (c) 25, 18.’ It is easy to show that any of the answers is correct. The first is correct if the rule generating the series is `list the odd numbers’; the second is correct if the rule is `list the odd prime numbers’, and the third is correct if a more complexe rule generates the series. Thus, if asked to follow the underlying rule — the `principle’ of the series — we can justify a tremendous range of divergent answers by constructing the rule so that it generates the answer that we want. As the realists showed, this result obtains for legal as well as mathematical rules.“
Satta advocated a conception of lawsuits known as a monistic conception, according to which the law is stipulated by judicial decisions and does not exist prior to them. Thus, he says (1968, 23): „ That French writer who said that the law is what the judges say it is thought to be contributing a skeptical note, but instead he expressed a profound truth, perhaps the only truth that can be expressed about the definition of law.“ The quoted sentence is similar to that passage of Bishop Hoadly so often quoted by American realists (cf. Gray 1902, 102, 125, 172): „Nay whoever hath an absolute authority to interpret any written or spoken laws it is he who is the lawgiver to all intents and purposes and not the person who first wrote or spake them.”
For a critique of this kind of skepticism, cf. Mendonca 1996.
Some skeptics reject that distinction; e. g., that is how Golding (1987, 135) argues with respect to Frank, and how Mazzarese (1996) argues in general.
Although it has been said (Schauer 1991, 119) that validity is a necessary condition for applicability, in Chapter III I have argued that validity is neither necessary nor sufficient for applicability.
By philosophers (Blackburn 1981; McDowell 1981; McGinn 1984; Backer/Hacker 1985; Wright 1989, 1993) and legal theorists (Bjarup 1988; Schauer 1991, 1992a; Bix 1992, 1993, 1995; Marmor 1992; Radin 1992; Smith 1992; Endicott 1996).
Here is the text of the first paragraphs of art. 21 of the law in question: 1. The agents of the Security Forces may enter and search a private home only in the cases permitted by the Constitution, and within the terms stipulated by the law. 2. To the effect of the provisions of the previous paragraph, it will be a legitimate reason for entering and searching a private home on the grounds that a crime is in the act of being committed, if the Public Security Forces have well-founded information leading to the certain belief that one of the crimes sanctioned in the Criminal Code concerning toxic or hallucinogenic drugs or psychotropic substances is being, or has just been, committed, on the condition that the immediate intervention of the agents is necessary for preventing the crime, the escape of the perpetrator, or the disappearance of the effects or instruments of the crime.“
This idea can explain why those norms, in order to be applicable, must pass some filter, as, for example, the so-called public-policy clause.
This is perhaps what can be replied to assertions like the following (Hernandez Marin 1989, 471): „According to the philosophy of language, the meaning of an expression depends on the context in which it is formulated, not on any other context. However, E. Garcia de Enterria, and with him many other jurists, hold that in order to interpret a legal sentence created 100 years ago (for example, some of our Civil Code) one must take into consideration the context given by the Constitution, which was created only 10 years ago.“ The assertion that some provision of the Civil Code should be interpreted in accordance with the Constitution must be understood in the following sense: The courts which apply that provision (and, therefore, justify their decisions with it) must, in accordance with the Constitution, disregard the intentions of its authors and take it into account only if one of its meanings is compatible with the Constitution (otherwise, the provision would be derogated by the Constitution). There is nothing strange here, just as it is not strange at all to adopt a sentence pronounced by someone else, regardless of the intentions that other person had in pronouncing it.
This thesis has been widely criticized: cf. Radin 1930; MacCallum 1968; Tarello 1980, 364–369; Moore 1985; Dworkin 1986, 53–76; Hurd 1990; Posner 1990, 261–269; Schauer 1991, 218–221; Freeman 1992; Shiner 1992, 35–38; Bix 1993, 183–190; Lyons 1993, 141–163; Nino 1994, 88–92; Endicott 1994; Waldron 1995.
Wittgenstein (1953, 33) writes: „Someone says to me: `Show the children a game’. I teach them gaming with dice, and the other says ‘I didn’t mean that sort of game’. Must the exclusion of the game with dice have come before his mind when he gave me the order?“
Some authors have taken an explicit stand, though. Thus, Dworkin (1986, 413) has defined his attitude towards the interpretation of the constitution as a Protestant one: „It is a protestant attitude that makes each citizen responsible for imagining what society’s public commitments to principle are, and what these commitments require in new circumstances.“
For an excellent overview over the controversy in North American theory, and an attempt to apply these conceptions to the Spanish case, cf. Ferreres (1996); cf. also Alonso García 1984.
Similarly, unfortunately, for those of us who are non-cognitivists in moral matters, that fact does not ease our burden when we must take decisions of moral relevance. As Leff (1979, 1249) said, perhaps ethics is an „unspeakable“ notion: „Nevertheless: / Napalming babies is bad. / Starving the poor is wicked. / Buying and selling each other is depraved. / Those who stood up and died resisting Hitler, Stalin, Amin, and / Pol Pot — and general Custer too — have earned salvation. / Those who acquiesced deserve to be damned. / There is in the world such a thing as evil. / [All together now:] Sez who? / God help us”
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Moreso, J.J. (1998). Constitutional Interpretation. In: Legal Indeterminacy and Constitutional Interpretation. Law and Philosophy Library, vol 37. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-9123-2_6
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