- 1 The form of legal realism I am going to sketch shares some tenets with other forms of realism (th (...)
1Legal realism – or, better, one form of analytical legal realism1 – can be characterized as the conjunction of three strictly connected theses: ontological, interpretive, and epistemological.
2The ontological thesis is about the law itself – it answers the question “What kind of entity (or set of entities) is the law?”.
3The interpretive thesis, as the name suggests, is about legal interpretation – it answers the question “What kind of activity is interpreting legal texts?”.
4The epistemological thesis is about legal knowledge (or “legal science”, as it is usually labelled in continental jurisprudence) – it answers the question “In what does the scientific knowledge of law consist?”.
5I shall begin by discussing the interpretive thesis since it is logically prior to the others.
- 2 The following distinction echoes Kelsen’s distinction between interpretation understood as (a) an a (...)
6A preliminary distinction is necessary.2 In the legal domain, “interpretation” is the name of (at least) two different activities, that is:
- 3 A “plausible” meaning is a meaning that can be maintained with persuasive arguments and, as a matte (...)
(a) “cognitive” interpretation, which amounts to the analysis of a text in view of clarifying its possible (plausible) meanings,3 and
(b) “adjudicative” interpretation which consists in ascribing a definite meaning to a text (rejecting the others).
- 4 Guastini 2011b. This view is indebted to Tarello’s theory of interpretation. See Tarello 1974 and 1 (...)
7Interpretive realism is a sceptical theory of adjudicative interpretation. It asserts that ascribing meaning to normative texts is a non-cognitive activity – not a matter of cognition, but rather a matter of decision.4
- 5 Kelsen’s and Tarello’s theories are two remarkable exceptions.
8This holds for judicial interpretation (which is the usual, limited, subject of current theories of interpretation5) as well as for “dogmatic” interpretation, that is, the interpretation put forward by legal scholars.
9Moreover, a further distinction between interpretation strictly so called and legal construction is in order.
10Legal texts are affected by a double form of indeterminacy.
11On the one hand, normative formulations are often ambiguous. Therefore they admit different competing interpretations “in abstracto” (or text-oriented): the normative sentence S can be interpreted as expressing either a norm N1 or a norm N2.
- 6 There should be no need to say that further (and maybe even more important) forms of indeterminac (...)
12On the other hand, each norm is vague, admitting of different competing interpretations “in concreto” (or fact-oriented): given any norm, we may ask whether the individual case C is included or excluded from its scope.6
- 7 I refer to those interpretive sentences that do not simply report or take notice of the indetermi (...)
- 8 Guastini 1997.
13This is why interpretive sentences – “in abstracto” (“The normative sentence S expresses the norm N1”) as well as “in concreto” (“The case C falls within the scope of the norm N1”) – are not cognitive or descriptive, but ascriptive sentences.7 Just like stipulative definitions, they are not descriptions of the one and only preexisting meaning, but decisions about competing meanings.8 Therefore, they have no truth-value.
14By the way, it is a matter of course that interpretive decisions of jurists, lawyers, and judges are conditioned by their practical (for instance, political, economic, professional, etc.) interests and ideas of justice, as well as – last not least – the conceptual constructions of legal dogmatics.
15Moreover, jurists, lawyers, and judges often are the very source of the indeterminacy of legal texts, in the sense that they “put” indeterminacy in texts that would not raise any interpretive problems at all in ordinary conversation.
16In juristic common parlance the term “interpretation” usually applies to the bulk of the intellectual operations accomplished by interpreters (judges, lawyers, jurists, etc.).
17Nevertheless, it is quite easy to realize that interpreters – and above all legal scholars – do not confine themselves to deciding the meanings of normative texts. Most importantly, they engage in what, borrowing an expression from Rudolf von Jhering, I propose to call “legal construction”. By this phrase I mean a set of intellectual operations which include (inter alia):
- 9 All gaps, in a sense, are “created” by interpreters since the identification of a gap presupposes i (...)
- 10 All such concepts are fully analyzed in Guastini 2011a. But a short characterization runs as follow (...)
(a) the creation of normative and axiological gaps;9
(b) the creation of axiological hierarchies among norms;
(c) the specification of principles;
(d) the balancing of conflicting principles; and
(e) most of all, the construction of unexpressed (so-called “implicit”) norms.10
18Various connections exist among such different operations. For instance, the construction of unexpressed norms is aimed at filling gaps and specifying principles. Axiological hierarchies are aimed at balancing conflicting principles. And so forth.
19Now, if interpretation properly understood is not a cognitive activity, legal construction is a fortiori the output not of cognition, but of decision. In fact, legal construction amounts to genuine juristic and/or judicial law-creation.11
- 12 By the way, according to a distinctive realistic thesis, deontic concepts (such as obligation, pr (...)
20Legal realism endorses an empiricist ontology of law. Law is not a set of abstract entities (such as norms, values, rights and obligations, or the like).12 Rather, it is merely a set of facts. What kind of facts, however? This question requires an articulate answer.
21At a first glance (at a surface level of analysis) the word “law” simply refers to the normative texts (statutes, codes, constitutions, regulations) enacted by law-giving agencies: such normative authorities as the legislators, the framers of the constitution, and so on. In other words, “law” denotes a set of normative (prescriptive, directive) formulations or sentences, hence facts of a certain kind – namely, language-entities.
22Such a concept of law – well reflected in many current expressions, such as “interpreting the law” – although somewhat unsophisticated may be useful in view of clarifying both the basic ontology and the very genesis of legal norms, since:
(a) in the first place, norms are but language-entities; and
- 13 See Kelsen 1973, 237, and 1991: 3 (echoing a thesis of Walter Dubislav).
(b) in the second place, norms can only come into the world by means of acts of “legislation” (in the generic, material, sense of “legislating”) – “No imperative without an imperator, no command without a commander.”13
- 14 This is the reason why interpretive realism is logically prior to ontological realism.
23Nonetheless, normative texts obviously require interpretation. Normative formulations must not be confused with norms properly understood, that is, their meaning contents.14 If the normative sentence S can be interpreted as expressing either the norm N1 or the norm N2, what is the law? N1 or N2?
- 15 See Gray (1948: 124 s and 170): ʻAfter all, it is only words that the legislature utters; it is for (...)
- 16 As to the ontology of meanings, I shall confine myself to say that the meaning of a sentence is not (...)
24Thus we are obliged to say that legal texts are not “the law”: after all, they are but sources of law.15 Law is not a set of normative sentences, but the set of normative meanings (that is, norms strictly understood) which are actually ascribed to legal texts by interpreters, either by means of interpretation in the strict sense or by means of legal construction.16
25This is why, at a deeper level of analysis, we have to use the term “law” to denote not normative texts, but rather normative meanings: the set of norms which interpreters actually “extract” or “construe” from normative formulations.
26Such a set includes both the class of expressed norms (that is, the norms which are meanings plausibly assignable to the existing normative formulations) and the class of unexpressed norms (that is, the norms construed by interpreters).
27From this standpoint, law depends on the combination of two different activities: (a) the formulation of normative texts, and (b) the interpretation and construction of such texts. There is no law without texts to be interpreted (first ontological thesis), but moreover there is no law without interpretation (second ontological thesis). In a sense, law is a set of interpretive practices.
28However, legal scholars and judges – at least diachronically – often disagree: many normative formulations are subject to competing interpretations; the existence (in the legal system) of any unexpressed norm is intrinsically controversial, since such a norm lacks any official formulation. Different interpretations and constructions bring forward different sets of norms, hence (partially) different legal systems.
29For example, according to a certain jurisprudential trend, the legal system includes, say, the expressed norms N1, N2, N3, and the unexpressed norms N4 and N5. Whereas, according to a different jurisprudential trend, the same system includes the expressed norms N1, N2 (not N3), and the unexpressed norms N4, N5, but also N6. Thus, we are facing to two distinct legal systems: {N1, N2, N3, N4, N5}, {N1, N2, N4, N5, N6}.
30Therefore we should ask: what is the law in such circumstances? Which of these two systems is the law? To answer such a question one must climb down to the deepest level of analysis, corresponding to a third concept of law.
31Nonetheless, this second concept of law – although still unsatisfactory – has the merit of accounting for the fact that the law is not produced by “legislators” only. In legal practice, side by side with law-giving authorities, one finds interpreters too, and the law in a sense arises from the interaction of legislators and interpreters. One cannot even imagine the law without interpreters (namely, jurists) as well as one cannot imagine a religion without priests or theologians.
- 17 The obvious reference is to Ross 1958a. See however Bulygin 1991.
32At the third, deepest, level of analysis, the term “law” refers to the set of norms in force, that is, the norms actually applied (that is, used in deciding cases) in the past and predictably applied in the future by law-applying agencies – judges, administrative agencies, as well as supreme constitutional organs (as far as constitutional norms are concerned).17
33In other words, notwithstanding the existing different interpretations and constructions, one can (almost) always find a number of synchronically leading interpretations and constructions generally accepted – the “law in action”, as we may call it.
34Let us go back to the preceding (abstract) example. According to the first jurisprudential trend the content of the legal system is {N1, N2, N3, N4, N5}; according to the second it is {N1, N2, N4, N5, N6}. To identify what the law is in fact, we have to ascertain which of the norms in question is in force. And it is quite possible that the empirical analysis of the leading jurisprudential trends shows, for example, that N1, N2, N4, N5 as well as N7 are in force, while N3 and N6 are not.
35Summing up, by the word “law” one can understand three different things:
(i) the set of the normative texts enacted by the lawgiving authorities;
(ii) the set of (expressed and unexpressed) norms formulated by interpreters;
(iii) the set of (expressed and unexpressed) norms actually in force.
36This leads us to the epistemological thesis.
37A preliminary distinction is in order. In the common usage of continental jurisprudence, the ordinary juristic work is frequently labelled as “legal science”, “legal doctrine”, or “legal dogmatics” . But all such phrases can be understood as pointing to (at least) two quite different intellectual enterprises which ought to be distinguished:
- 18 J. Austin 1995: 14, 112 s.
- 19 Kelsen 1992: 7 and 1966: ch. III.
38(i) on the one hand, legal science properly so called – the “science of jurisprudence” (J. Austin18), the “science of law” (Kelsen19) – that is, the scientific (neutral, value-free) description of the law in force;
39(ii) on the other hand, what I shall call legal scholarship, that is, the usual academic investigation into the law, namely into those normative texts which are regarded as the official sources of law.
40For this reason epistemological realism includes two distinct theses – the first one being a descriptive thesis concerning actual legal scholarship, and the second one being a prescriptive thesis bearing upon the scientific knowledge of the law.
- 20 “Secretly”, since such sentences usually claim to be existential propositions about norms – “The (...)
41Given what we have said, the actual practice of jurists cannot be considered as a genuine scientific enterprise, since juristic sentences (or the greater part of them) are neither true nor false, and hence non-cognitive. Interpretive sentences are not descriptive, but ascriptive, and the sentences which formulate unexpressed norms are secretly prescriptive.20 Legal scholars do not describe the law – they contribute to making it.
42According to a classical view of analytical legal philosophy, legal scholarship is a meta-linguistic enterprise that takes the language of the lawgivers as its object-language.21 Unfortunately, that picture of legal scholarship is, although seductive, somehow misleading. The language of lawgivers and the language of interpreters are actually subject to a continuous osmotic process. Juristic language does not simply “bear upon” lawgivers’ language. Rather, jurists shape and enrich the object of their study, like a violinist interpolating apocryphal notes in the composition he or she is executing.
- 22 See Kelsen 1992: 82; Ross 1958: 46.
43Interpretation and construction are not legal cognition – rather, they are pieces of legal policy.22 In fact, they are part (an essential part) of the very object of legal cognition properly understood.
44Nevertheless, jurists do contribute to the cognition of law, too, in the ways we are going to see.
- 23 Scarpelli 1967.
- 24 Contrary to Kelsen’s view. See e.g. Bulygin 1982.
45From the standpoint of the form of legal realism outlined in this paper, legal science cannot consist in describing such abstract entities as obligations or rights and/or the deontic properties of behaviour (“It is obligatory that p”, “It is prohibited that q”), and the like. And, as a consequence, its sentences cannot be deontic sentences repeating – iterating, like an echo23 – the norms they refer to.24
46Legal science properly understood can assume three different forms, corresponding to the three concepts of law developed in the previous section.
47(i) Cognitive interpretation. Talking about interpretation, I dealt with “adjudicative” interpretation – the ascription of a definite meaning to a given legal text. And adjudicative interpretation is the usual and most important job of legal scholars. Nonetheless, they also accomplish a different task, namely, “cognitive” interpretation which consists in identifying the various possible meanings of a normative text – the meanings admissible on the basis of shared linguistic (syntactic, semantic, and pragmatic) rules, accepted methods of legal interpretation, and existing juristic theories – without choosing anyone of them (“The text T can be interpreted in the senses S1 or S2”).
- 25 By the way, cognitive interpretive sentences can be understood: either as predictions of future (...)
48Cognitive interpretation contributes to the knowledge of law understood as a set of normative texts, since it reveals the ambiguity of normative formulations and the vagueness of norms.25
49(ii) Reconstruction of jurisprudential trends. Understanding the law (not as a set of normative formulations, but) as a set of expressed and unexpressed norms, the analysis, reconstruction, and description of the interpretive and constructive trends of judges and jurists constitute obvious contributions to the knowledge of law.
50And this, too, is a common practice among legal scholars, which contributes to legal knowledge, since it is a necessary preliminary to ascertaining the prevailing jurisprudential trends, which, in turn, is a necessary preliminary to identifying the law in force.
- 26 See once more Ross 1958a: ch. 2 and Bulygin 1991.
51(iii) Description of the law in force. Understanding the law as a set of norms in force, the cognition and description of the law requires the identification of the norms actually applied by judges and other law-applying agencies.26 (No need to say that, where no definite norm regarding a certain matter is in force, legal science can only take note of the existing jurisprudential conflicts.)
- 27 See, e.g., Bulygin 1982.
52One may agree with the prevailing view according to which legal science consists in a set of “normative propositions”, that is, true or false sentences concerning norms.27 However, two clarifications are in order: the first one pertains to the logical form of normative propositions, and the second to their conditions of truth.
53(a) As I already said, normative propositions are not deontic sentences about the normative qualification of behaviour.28 Rather, they are existential sentences about norms (in force). The “legal” existence of a norm is simply its membership in a definite legal system. Hence, normative propositions, whatever their actual syntactic form may be, are sentences which state the membership of norms (in force) within a definite legal system: “The norm N belongs to the legal system S”.
54(b) A normative proposition is true if, and only if, the norm which it refers to will be predictably applied in future decisions. Therefore, normative propositions can be understood as propositions on contingent futures: predictions concerning the future application of the norms they refer to.
––Acknowledgments.–– I am highly indebted to Mike Karlsson and Stanley Paulson, who read and discussed a first version of this paper. I also thank two anonymous referees.