Interpretation Versus Invention

  • Marisa Iglesias Vila
Part of the Law and Philosophy Library book series (LAPS, volume 49)


Over the last few years, the dichotomy between interpretation and invention has come within the purview of legal philosophers. The controversy about this distinction is not all that novel. It is in many respects essentially the same discussion held by legal theorists who deal with the identification and application of norms as something distinct from the creation of new norms by judges. This distinction has allowed them to define a context for, and limits to, strong discretion. Recently, the discussion has focused on a new label: ‘interpretation vs. invention’ that has both enhanced and broadened the scope of the debate. Such a distinction allegedly applies to any type of meaning ascription. An analogy between legal and literary or art interpretation has been drawn and often invoked to illustrate the assumptions underlying this debate, and to prove its epistemic relevance.


Conceptual Scheme Legal Practice Correspondence Theory Coherence Theory Internal Objectivity 
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  1. 2.
    See Wittgenstein (1953, secs. 198, 201). On Wittgenstein’s notion of interpretation, and how interpretation differs from comprehension or knowledge, see Baker and Hacker (1994, 81–154).Google Scholar
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    Schauer (1992, 207–208). On the use of the distinction between interpretation and understanding in legal theory, see Wróblewski (1988, 21–22; 1989, 113) and Prieto (1987, 58–77).Google Scholar
  3. 4.
    See Marmor (1992, 151–154). In a similar sense, see Patterson (1996, 86–88) and Dummett (1993, 464473). Hart (1994, 127–128) relates the need for interpretation to the open texture of language. In the zone of certainty of a concept the judge does not need to interpret to identify the right answer, whereas in cases that fall in the penumbral zone, because there is no convention as to the use of terms, the body of adjudication must make a choice between open alternatives.Google Scholar
  4. 5.
    Along Dummett’s lines, Marmor claims that interpretation is an exception to understanding because interpreting requires prior understanding of language; moreover, interpretation is only necessary when there is nothing more to be understood. Understanding is guided by semantic rules and conventions that can be followed or broken. By contrast, interpretation comes into play when no rule or convention but only interpretive paradigms can be invoked. Paradigms are more flexible than rules and, although they may be respected or overlooked, they cannot be followed or broken in the same way rules can. For Marmor, departing from a paradigm, contrary to deviating from semantic rules, is not a sign of lack of understanding. Paradigms do not measure the correctness of a given interpretation but only their degree of acceptability or plausibility within a specific interpretive community. See Marmor ( 1992, 21 ).Google Scholar
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    See Marmor ( 1992, 33–34 ). Endicott discusses Mannors position in detail. He observes that Marmor’s approach is misleading because on some occasions this author seems to defend a restrictive notion of interpretation whereas on other occasions he appears to support a much wider notion of it. Endicott pointsGoogle Scholar
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    Dworkin (1985, 146–149) and Fish (1983, 299–305). Raz (1996, 250–256) and Ross (1958, 115–122), for instance, also adopt this idea of interpretation. However, it is worth noting that Raz and Ross relate interpretation to ‘explanation’. But they conceive `explanation’, in contrast with Hacker’s view, as a manifestation or result of understanding. In spite of his claim that an interpretation is an explanation, Hacker considers that an explanation is only necessary when a statement is obscure or ambiguous. See Hacker (1988, 168). For a discussion of Hacker’s position, see Patterson (1996, 86 footnote 104).Google Scholar
  7. 15.
    I pointed out earlier that we are assuming a very common view within semantics that relates a theory of meaning to a truth-conditions theory. We noted that this view still permits the distinction between realist and antirealist semantics in terms of what they understand the truth-value of legal propositions to depend on, and whether they assume their truth to transcend the epistemic abilities of interpreters or not. See Baker (1988, 50–51), Dummett (1978, xxi-xxiii) and Patterson (1996, 5–6). Shiner objects to this view: he claims that antirealism is a theory that rejects the very possibility of asserting the truth or falsity of judgements. In my opinion, this view is mistaken for it presumes that the term ‘truth’ has a single meaning. See Shiner ( 1992b, 210–211 ).Google Scholar
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    Fish has devoted a large amount of his output to criticising Dworkin’s interpretive model. See Fish (1982, 551–567; 1983, 200–316; 1987, 401–419). A further reply to Dworkin from a pragmatist point of view is to be found in Knapp ( 1991, 323–342 ).Google Scholar
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    In the second chapter I pointed out that Hartian positivism does not purport to assume realist semantics. However, the problems of this theory to overcome the sceptical challenge of ‘anything goes’ allow Hartian positivism to assume the social sources thesis, albeit at the cost of appearing to accept semantic realism or, at least, a position notably close to realism. Thus, although Fish’s description of the positivist project is not entirely accurate, it seems nevertheless appropriate if we take into account positivists’ failure to solve the problem of rule-following. See Fish ( 1983, 301, 308–312 ).Google Scholar
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    Although Fish never explicitly defines ‘prior understanding’, it can be argued that he thereby refers to the set of convictions the agent holds before undertaking interpretation. The agent’s prior understanding endows him with a particular perspective of social reality as well as with criteria upon which to base his decisions. See Fish ( 1982, 554; 1983, 311–312 ).Google Scholar
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    Fish (1982, 308–309). Owen Fiss (1982, 744) holds a similar view: although he rejects the sceptical conclusion, he claims that `objectivity implies that the interpretation can be judged by something otherGoogle Scholar
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    It is important not to mistake the above distinction between these two kinds of objectivity with the one Coleman and Leiter draw. In my view, these authors adopt external objectivity, which they then further divide into strong and minimal objectivity. Strong objectivity takes the very events or objects as the applicable external restrictions, whereas minimal objectivity presumes that external restrictions derive from the social conventions and the views of the majority of the members of the community of speakers. Coleman and Leiter argue that antirealist semantics usually assume minimal objectivity. However, it was already pointed out in a previous chapter that it is not obvious how to reach this conclusion and simultaneously overcome the sceptic challenge of rule-following. See Coleman and Leiter (1995, 252253).Google Scholar
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    Davidson (1984b, 198). See also Davidson’s reply to Quine, in particular to Quine’s idea that meaning should be searched in the sensory stimulation that acts as a mediator between objects and beliefs. See Davidson (1993b, 313–319; 1993a, 327). See also Putnam (1981, 54–56; 1987, 16–21, 76–80 ).Google Scholar
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    Quine (1953, 20–47). Quine defines ‘empiricism with dogmas’ as the theory that posits the two following dogmas• firstly, that there is a qualitative difference between analytic and synthetic truths; and secondly, that `each meaningful statement is equivalent to some logical construct upon terms which refers to immediate experience’. Quine ( 1953, 20 ).Google Scholar
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    Quine (1953, 42) writes in this sense that `the totality of our so-called knowledge or beliefs, from the most causal matters of geography and history to the profoundest laws of atomic physics or even of pure mathematics and logic, is a man-made fabric which impinges on experience only along the edges’.Google Scholar
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    Quine (1953, 43–44). Quine claims that, due to pragmatic reasons, we create myths and dogmas such as physical objects or abstract entities that have essentially an epistemic status similar to that of Homer’s gods. The belief in the former is simply preferred to the belief in the latter because of their greater usefulness when dealing with experience. See Quine ( 1953, 44–45 ).Google Scholar
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    Davidson’s arguments are directed primarily against Quine’s advocation of empiricism. Davidson (1993b, 311–314) claims that Quine’s theory leads directly to scepticism because if we assume that the mediators between convictions and the tangible world are sensorial schemes, then we must also assume that we may be completely mistaken about what we believe. Thus, Davidson (1993b, 313) observes, ‘a person’s sensory stimulations could be just as they are and yet the world outside very different’. See also Davidson (1984b, 190–195; 1990, 136). See also his criticism to Neurath’s epistemic theory in Davidson (1993a, 320–332). This objection is important because it leads to the conclusion that Quine does not succeed in overcoming semantic realism without falling into scepticism. For this reason, some authors point out that Quine’s holism eventually endorses realist semantics according to which truth always transcends evidence. See Rorty ( 1993, 353; 1980, 221–230 ).Google Scholar
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    Davidson (1984b, 153). Along similar lines, Aamio (1987, 214), quoting Wittgenstein’s remarks stresses that “we can not doubt everything. `If you tried to doubt everything you would not get as far as doubting anything. The game of doubting itself presupposes certainty”’.Google Scholar
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    Davidson ( 1993b, 319 ). Note that the presumption of truth is not an ultimate source of evidence. Beliefs constitute this ultimate source since they incorporate, by definition, the presumption of truth of their contents. For Davidson, this presumption replaces the need to provide further evidence. This can be easily understood if we note the difference between presumption and evidence. To claim that something stands as evidence for the truth of a proposition means that it is sufficient to assert its truth. By contrast, presuming a proposition to be true consists in taking the proposition as true although, in fact, it may not be so. The presumption of truth of a proposition eliminates the requirement that sufficient evidence be provided to assert its truth. Davidson’s project, then, should be regarded as an attempt to reject that theGoogle Scholar
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    In this sense, Rorty claims that his interpretation of Davidson’s position has to deal with the fact that Davidson presents his theory as an attempt to show how coherence leads to correspondence. Rorty accuses Davidson of not realising that correspondence without confrontation does not reconcile coherence with correspondence. Rather, correspondence without confrontation obliterates the very idea of correspondence. Thus, in order to preserve the achievement of Davidson’s programme, we are urged to ignore, for example, Davidson’s claim that despite `we cannot get outside our beliefs and our language so as to find some test other than coherence we nevertheless can have knowledge and talk about an objective public world which is not of our making’ (Rorty, 1993, 342). Rorty urges Davidson to abandon his attempt to show that coherence leads to correspondence because this idea is mistaken. See Rorty (1993, 342–345). See also Davidson ( 1993b, 309 ).Google Scholar
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    Consider the statements ‘slavery is unjust’ and ‘slavery is really unjust’. Dworkin claims that the second statement is not linking language to something independent of conceptual schemes. The term ‘really’ only adds that what is being claimed is the result of the best argument about what is being interpreted. It is in this sense that Dworkin claims there to be no difference between the two judgements. Therefore, in identifying these two statements, Dworkin is not sacrificing the possibility of objective justification of statements. He only makes this possibility internal to a certain theory. See Dworkin (1996, 103–108). For a discussion on the statement ’abortion is incorrect’, see ( 1996, 96–99 ).Google Scholar

Copyright information

© Springer Science+Business Media Dordrecht 2001

Authors and Affiliations

  • Marisa Iglesias Vila
    • 1
  1. 1.Department of Legal, Moral and Political PhilosophyPompeu Fabra UniversityBarcelonaSpain

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