Interpretation of law
From IVR encyclopedie
The problem of setting the criteria of a correct interpretation of law has preoccupied lawyers at least from the times of Roman jurists. Issues connected with legal interpretation have been important especially for the continental legal systems, but with the increase of the number of statutes in the 20th century, also the common law culture turned its attention towards the topics that interest us here. It is difficult to state precisely what legal interpretation consists in. The reason for this is that the required answer rests on some basic ontological choices one makes. It is therefore much easier to speak of different theories of legal interpretation: hermeneutical, analytical, argumentation, than to give a general definition of the interpretation of law (see Stelmach, Brożek ). Some things could nevertheless be said even from such a general perspective. Legal interpretation is a concept that has two aspects: it is a concept of interpretation and this interpretation is characterized as legal.
I. Legal interpretation as interpretation
The notion of interpretation has been explained in various ways. According to a classification proposed by Jerzy Wróblewski one can speak of three kinds of interpretation. Intepretatio sensu stricto occurs in situations when there are doubts as to the meaning of the interpreted text (i.e., the rule clara non sunt intepretandacannot be applied). Interpretatio sensu largo, on the other hand, is the process of understanding the text, both written and spoken. Finally, intepretatio sensu largissimo is the process of cognition and explanation of any cultural object (Lang, Wróblewski, Zawadzki , p. 394).
In the interpretation sensu largo that interests us here two notions play a crucial role: text and interpreter. Text is to be understood by the interpreter. One can think of this “understanding” as the picking out by the interpreter of the best possible sense that could be ascribed to the interpreted text. In order to call the process of interpreting rational, the choice made by the interpreter has to be justified. These simple definitions could be illustrated as follows. In his book “The Concept of Law” Herbert L.A. Hart gave the following example of an interpretational problem: A local ordinance bans vehicles from the public park. It is obvious that automobiles and trucks are banned. But what about bicycles? They have wheels, are means of transport but lack conventional motors, and are usually quiet and nonpolluting. There are reasons to regard bicycles as vehicles, but there are also reasons not to do it. So, are bicycles banned from the park by the ordinance (see Hart )?
In the ordinance one can find the following text: “Vehicles are not allowed into the park”. One can ascribe at least two senses to the text: according to the first interpretation the denotation of the word “vehicle” includes bicycles, while according to the second bicycles are not vehicles. The task of the interpreter is to choose between those two senses. The choice of the interpreter has to be justified, i.e. sufficient reasons must be given in favor of the chosen interpretation. E.g., the interpreter may choose the first sense of “vehicle” arguing that bicycles are mechanical devices designed for transport and as such should count as vehicles. The major problem that arises in connection with the above considerations is the definition of the class of “possible senses” that could be ascribed to the given text. Is it always possible to distinguish such a class? Is the class objectively distinguishable?
It is sometimes argued that there is no such thing as a class of possible interpretations of a given text. It is even held that under specific conditions a text can be ascribed any sense. This stance puts into doubt the possibility of interpretation as a rational activity and even if declared entirely mistaken it points out at an important issue connected with the process of interpretation. Closely connected to this is another problem concerning the objectivity of interpretation. There are, it is argued, classes of possible interpretations but they differ from interpreter to interpreter, hanging together with his or her background, system of values, interests etc. From this perspective the possibility of the process of interpretation is saved but its objectivity is questioned. The other way of questioning the objectivity of interpretation is stressing the subjective character of the interpretation’s justification. One can say that the class of possible interpretations can be objectively identified but the choice of the “correct” interpretation is ultimately based on a particular system of values and as such cannot be said to be objective. The subjectivity of interpretation is advocated by many 20th century philosophies of interpretation, like hermeneutics or postmodern movements. Those philosophies were developed in opposition to the idea of the objective interpreter (observer) as developed by the positivistic movement.
II. Peculiarities of legal interpretation
Among different texts, legal texts have some specific features. These features may be called validity, purposefulness and obligation-to-decide.
Every legal interpretation is an interpretation of a text that is considered to be valid law (or, alternatively, leads to establishing what the valid law is). Moreover, legal interpretation is to be conducted within the framework provided by the procedural (institutional) regulations and a certain interpretational tradition. Such factors as legal definitions, presumptions and precedents play an important role when it comes to determining the limits of the interpretation of a given text and the methods thereof.
In the case of legal texts, the pragmatic aspects of language are as visible as with no other text. Legal texts are produced with the aim of influencing (or regulating) the social reality. In other words, legal texts are produced to fulfill certain purposes that are not communicational (semantic) in nature. Because of that, legal interpretation cannot be carried out without recourse to the so-called functional directives of interpretation. The functional directives often lead to justifying the interpretation that lies outside the purely semantically “possible” interpretations. Can such an activity still be called an interpretation or is it already an example of law-making?
The last of the peculiarities of legal interpretation is a very intriguing aspect of this interpretational situation. In most legal systems, a legal question that has been raised before a court has to be decided. It means that in any particular situation an interpretational decision has to be made and this is an obligation imposed on judge by the law. From a purely theoretical perspective it poses an interesting problem. A theory of legal interpretation has to be a theory of a process that can actually be carried out within a reasonable period of time or otherwise it is an unachievable ideal.
All the above described peculiarities show that a theory of legal interpretation has to deal with the problem of the relationship between the interpretation in general and legal interpretation. Below we will look at the enumerated problems (objectivity/subjectivity of legal interpretation, justification of the interpretational decision, peculiarities of legal interpretation) from the point of view of three general philosophical theories of interpretation: analytical, argumentation and hermeneutical.
III. Analytic theory of legal interpretation
It is difficult to define what analytic theory of legal interpretation is. It is not a single theory, but rather a bunch of conceptions developed within the framework of the so-called analytic philosophy. Anyone even perfunctorily familiar with this philosophical movement could easily point out the variety of methods used and problems explored by analytic philosophers (see Stroll ).
It is usually said that the linguistic turn in philosophy occurred at the beginning of the 20th century with the publication of Russell’s “Principles of Mathematics” and Moore’s “Principia Ethica”. Those two authors symbolize what became to be known as two “wings” of analytic philosophy; Russell advocates formal analysis, while Moore is known for his common sense analysis that could be regarded as a predecessor of the ordinary language philosophy.
Today the alleged conflict between formal and informal analytic philosophy has, at least partially, been overcome. But the number of different methods used by thinkers that call themselves “analytic philosophers” increases. Nevertheless, one could point out some characteristic assumptions that stand behind (almost) all the analytic conceptions of legal interpretation.
The analytic tradition in legal philosophy is not as long as in the general philosophy. The formal approach to legal matters was introduced in the 1950s with the development of deontic logics. Authors such as G.H. von Wright, J. Kalinowski and O. Becker made the first attempts to develop formal systems capturing the notions of obligation, prohibition, permission etc. (cf. Kalinowski 1972). The “formal wing” of analytic legal philosophy has not been preoccupied only with the search for the logic of normative sentences, but explored also such issues as the problem of normative systems, ontology of norms etc.
The informal analysis found its most famous formulations in the late philosophy of L. Wittgenstein and in the conceptions of the Oxford School of Ordinary Language Philosophy. One of the representatives of the latter is H.L.A. Hart, whose contribution to legal philosophy cannot be overestimated. Such ideas as the theory of speech acts or the conception of rules and principles could be regarded as the most influential achievements of the informal analytic legal philosophy.
The most important assumption of the analytic philosophy is that language is the key to any serious philosophizing. The reason for that is that while we are not sure whether we have cognitive access to the world and whether we can trust our thoughts that are throughout subjective, the language constitutes a medium between thinking and the world that seems to be objective in nature (or, to say the least, as intersubjective as possible) (cf. Hacking ). Therefore, the major assumption of analytic philosophy is that language is objective. In consequence, the process of interpretation cannot be purely subjective. Analytic philosophers oppose any radical relativist views concerning the meaning of the words. There are meanings, there are senses that can be ascribed to a given text, and the set of possible interpretations is – at least in principle – determinable.
The other general problem of legal interpretation – the conception of the justification of the interpretational decision – has found a lot of interest among analytic philosophers for that simple reason that the main tool of formal philosophy – logic – has as its main aim justification. Usually one distinguishes between internal and external justification. An argument is said to be justified internally if its conclusion follows logically from its premises. On the other hand, an argument is called externally justified, if it is internally justified and its premises are true (see Wróblewski , Stelmach, Brożek , pp. 41-101).
Logic deals only with internal justification. According to the well known metaphor, the role of logic is to indicate the schemata of arguments that guarantee the “transmission of truth” from the premises to the conclusion. In the context of legal interpretation and – more generally – legal reasoning, there is a particular problem connected with the conception just sketched. The logically valid arguments are the ones in which there is a “transmission of truth” from the premises to the conclusion. In normative reasoning, on the other hand, norms and other directive expressions are used as premises. Furthermore, it seems difficult to call norms true or false. If the stance that norms are neither true nor false is upheld, the relation of logical consequence cannot obtain between sets of sentences that contain norms. In other words, the logic of norms is impossible. This fact has of course far reaching consequences for the process of legal interpretation, as the conclusion of an interpretational argument is a legal norm.
The problem of validity poses some interesting logical problems. The most important problem is caused by the shifts of the burden of proof that are determined by the rules of legal procedure. Such shifts are difficult to be incorporated in a logical model of legal reasoning that uses classical logic. To deal with this problem, such formal systems as defeasible logics were developed (see Brożek ). The purposefulness of legal interpretation poses some challenges for the logically oriented legal philosophy. The notion of a purpose is intimately linked with the pragmatic dimension of language. The pragmatic aspect of language has been given due attention in the informal analytic philosophy, but the logical models that traditionally concentrated on semantic problems only recently started to incorporate the pragmatic issues.
IV. Argumentation theories of legal interpretation
The contemporary theories of argumentation developed as an alternative to the logic-oriented account that tried to subject legal – and, more generally: normative – thinking to the same rules that constitute the methods of natural sciences. One could point out at least two sources of the argumentation theories. First, they are often seen as a revival of the ancient arts of rhetoric and dialectics. Second, they are based on the Kantian distinction between theoretical and practical reason. According to Kant, human reason has two basic uses or functions: one could distinguish theoretical reason (i.e., the reason that answers the “what is” questions) and practical reason (i.e. the reason that answers the “what ought to be” questions). In contemporary terms theoretical discourse is mentioned on the one hand, and practical on the other. Theories of argumentation are usually designed to give an account of the practical discourse, while the theoretical is left for logic and empirical epistemology (cf. Stelmach, Brożek ).
The most important theories of argumentation in the 20th century are those of Chaim Perelman, Theodor Viehweg and Robert Alexy. The key notion in Perelman’s new rhetoric is the concept of an audience. The audience sets the criteria of the acceptance of an argument. Perelman distinguishes between particular and universal audiences. A particular audience is a particular group of persons that are to evaluate the strength of an argument. The universal audience, on the other hand, is a thought-construct: it is the audience consisting of all rational human beings. The notion of a particular audience captures the “practical-rhetoric” aspects of legal argumentation, while the notion of the universal audience encapsulates in a somewhat vague manner the “procedural” or “purely rational” dimension of arguing (see Perelman, Olbrechts-Tyteca ).
Viehweg’s theory may be called “practical-rhetoric”. According to Viehweg, the process of legal interpretation is problem-oriented. It cannot, therefore, be described in general terms and there cannot be a fully determined procedure to be applied in solving a legal case. Instead, legal cases (involving many interpretational issues) should be treated in a particular way; the task of a judge or someone else solving the problem is to argue for a particular solution. The argumentation process boils down to using specific and general topoi, i.e. “common places” (see Viehweg ).
Alexy’s theory of legal argumentation may, on the other hand, be called “procedural”. The main objective of the theory is to show how one can argue rationally being involved in a practical discussion. Alexy finds an answer to this question in developing a set of criteria for “rational discourse”. Any discourse meeting the criteria can be called rational and any decision made within such a discourse can also be called rational (see Alexy ).
Argumentation theories do not question the objectivity of interpretation. It is a presupposition of all the above mentioned theories that the process of interpretation is at least intersubjective. The argumentation theories pay much attention to the problem of justifying the interpretational decision. It is obvious that legal interpretation means interpreting a text that belongs to the sphere of practical discourse. It is therefore the task of a theory of argumentation to give the criteria of a rational interpretational decision. For Alexy, an interpretational decision is justified if the argumentation process which led to the decision meets the criteria of practical discourse. For Perelman, an interpretational decision is justified (and hence rational) if it is acceptable by the universal audience.
A specific feature of legal interpretation is the fact that this is an interpretation of valid law, being carried out within a framework provided by the law itself. Alexy addressed this problem with his Sonderfallthese (the special case thesis). According to this thesis, legal argumentation is a special case of the general practical discourse. What makes legal argumentation “special”, are the legal rules that frame it, modifying the rules of the general discourse. The purposefulness of legal interpretation is fully reflected in argumentation theories for the simple reason that those theories are designed to capture the essence of practical discourse, the discourse concerned with practical questions that necessarily involve talking about purposes.
Hermeneutics is a very old theory of interpretation that was developed in antiquity in three specialized versions – one could mention biblical, philological and legal hermeneutics. Hermeneutics as a general theory of understanding (and interpretation) was developed much later, in 19th and 20th centuries, by such philosophers as Schleiermacher, Dilthey, Heidegger and Gadamer (see Stelmach , Schleiermacher ).
Schleiermacher and Dilthey developed what could be called a methodological hermeneutics. On this account hermeneutics constitutes a set of epistemological rules that are characteristic of any process of cognition. The other conception, “ontological”, was sketched by Heidegger and fully developed by Gadamer. On this second reading, understanding is the basic mode of being for humans, and therefore the structures that enable the cognition are fundamental in nature. Hermeneutics becomes in this way ontology (see Stelmach , Stelmach, Brożek ).
Hermeneutical legal philosophy has a long history. As mentioned above, legal hermeneutics was developed in antiquity. Much later, important treaties on legal hermeneutics were written by Eckhardi, Wittich and Sammet. In the 19th and 20th centuries the general hermeneutics was adapted for legal purposes. In this context the names of Savigny, Esser, Coing, Larenz, Betti, Reinach, Maihoffer and Kaufmann should be mentioned (cf. Coing , Betti , Esser , Kaufmann ).
The problem of the objectivity of interpretation is one of the main issues addressed by hermeneutical theories of interpretation. According to the “methodological” accounts, like Schleiermacher’s or Dilthey’s, the aim of the process of interpretation is to understand the given text in a way in which the author understood it. The objectivity of interpretation is not therefore questioned here, but the difficulties involved in discovering the “objective” meaning are indicated and dealt with. Methodological hermeneutics provides us with a set of criteria and methods (usually of psychological origin) that have as their aim to secure an objective result of the process of interpretation. Ontological hermeneutics, on the other hand, gets rid of the distinction between objective and subjective. The distinction has no sense in the situation when the opposition between the knowing subject and the known object is not assumed anymore.
The problem of the justification of an interpretational decision is tied up with the methods proposed by hermeneutics. In the case of methodological hermeneutics the psychological methods used make the results justified. In ontological hermeneutics a result of interpretation is justified as far as it is grounded in an individual act of understanding, based on a rational, hermeneutic intuition. It has to be added that some threads in the contemporary Anglo-Saxon philosophy of law are labeled “hermeneutic”. Such important thinkers as Dworkin or Raz are sometimes regarded hermeneutic philosophers. It is true that some of their ideas resemble or presuppose basic theses of hermeneutics. However, those philosophies do not share the ontological and epistemological background with the proper hermeneutics and as such are not interested for our discussion.
R. Alexy, A Theory of Legal Argumentation, translated by R. Adler, N. MacCormick, Clarendon, Oxford 1989.
E. Betti, Allgemeine Auslegungslehre als Methodik der Geisteswissenschaften, Tübingen 1967.
B. Brożek, Defeasibility of Legal Reasoning, Kraków 2004.
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J. Esser, Vorverständnis und Methodenwahl in der Rechtsfindung. Rationalitätsgrundlagen richterlicher Entscheidungspraxis, Frankfurt am Main 1970.
I. Hacking, Why Does Language Matter to Philosophy?, Cambridge 1975.
H.L.A. Hart, The Concept of Law, Oxford 1961.
J. Kalinowski, Logique des normes, Presses Universitaires de France, 1972.
A. Kaufmann, Vorüberlegungen zu einer juristischen Logik und Ontologie der Relationen. Grundlegung einer personalen Rechtstheorie, Rechtstheorie 1986.
W. Lang, J. Wróblewski, S. Zawadzki, Teoria państwa i prawa (Theory of state and law), Warszawa 1982.
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J. Stelmach, B. Brożek, Metody prawnicze (Legal methods), Kraków 2004.
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Th. Viehweg, Topik und Jurisprudenz, 5th ed., Munchen 1974.
J. Wróblewski, ‘Legal syllogism and rationality of judicial decision’, Rechtstheorie, pp. 33-46, 1974.