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In defence of a constructivist conception of legal interpretation

Isabel Lifante Vidal
This article is a translation of:
En defensa de una concepción constructivista de la interpretación jurídica [es]

Abstracts

This work aims at articulating a constructivist or value-dependent conception of legal interpretation and at arguing in defence of its superiority against rival conceptions. Legal interpretation is an activity that implies participating in legal praxis. Thus, it is committed to those ends and values that give meaning to it, or in other words, it is committed to improving such praxis. Accordingly, to answer the question of how to interpret law, we must first answer the question of what makes law valuable. To assess whether a certain interpretation is better or worse than alternatives depends precisely on how it contributes to maximizing those principles making us consider law valuable. Legal argumentation for the purposes of legal interpretation has a necessary moral and political component. Nonetheless, this does not imply disregarding the peculiarities of legal argumentation, particularly the relevance of authoritative elements.

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1 Some preliminary questions

1There is widespread agreement that “to interpret” is, in general, to attribute or specify the meaning of something. Also, in Law, this activity is crucial due to the indeterminacy that can affect it. However, when we try to describe the act of “interpreting” with some detail - what it entails and how it should be conducted in the legal field-, discrepancies begin to multiply and it is difficult to find a unanimous definition of “legal interpretation”. For this reason, I am going to begin with some conceptual remarks.

  • 1 Cf. Lifante Vidal 2018: 19-28.

2In a previous work, I dealt with several ambiguities that we can find when we talk about “interpretation” in general, and about “legal interpretation” in particular.1 Among them, I am now interested in two ambiguities, which I consider relevant to introduce the conception of legal interpretation I want to defend here. The first ambiguity is to be found in the answer to the question of which kind of activity we refer to when we talk about interpretation (noetic interpretation versus dianoetic interpretation), while the second ambiguity is in the object of the legal interpretation (interpretatio legis, or more generally the interpretation of legal provisions, versus interpretatio iuris).

1.1 Noetic interpretation versus dianoetic interpretation

  • 2 Gianformaggio 1987: 90 ff.
  • 3 Gianformaggio’s distinction between noetic and dianoetic interpretation coincides to a large extent (...)
  • 4 Kahneman 2011.

3When speaking of "interpretation" we can refer either to the very activity or to its results. It is an example of the extended ambiguity between process and product. The first meaning, interpretation-as-an-activity, refers to the process or the activity of interpreting, and the second, interpretation-as-a-result, refers to the outcome or product resulting from the activity. That said, within interpretation as an activity, we can distinguish between “noetic interpretation” and “dianoetic interpretation”.2 For Gianformaggio, interpretation is a noetic activity when the capture of meaning occurs as an intuitive thought, namely, as an immediate intellectual capture of an intelligible reality. Otherwise, she defines interpretation as a dianoetic activity when it requires discursive thinking, that is, argumentation.3 Underlying these two meanings of interpretation is the same distinction recently developed by psychologists such as Daniel Kahneman4 between two systems of thought: a fast or intuitive one, and another slow and reflective one, which relates to the act of deliberation.

4It is easy to realise that the first activity, noetic interpretation, refers to an always-necessary activity (whenever we find ourselves in a communicative situation, we need to capture the meaning). However, carrying out an interpretative activity in a dianoetic sense is not necessary in all communicative situations, only in those in which there is doubt regarding the meaning that ought to be attributed to the object under interpretation. This second, more restricted meaning of interpretative activity is the most relevant for our purposes. While I should be focusing on it, it is necessary to note that they are not mutually exclusive activities: any dianoetic interpretation starts with a capture of meaning (even if it is an imprecise meaning). In other words, noetic interpretation always occurs in both clear and doubtful cases, while dianoetic interpretation it is only necessary in doubtful cases.

1.2 Interpretatio legis versus interpretatio iuris

  • 5 Cfr. Wróblewski 1987: 34 ff. and Wróblewski 1992b: 87 ff.). However, this second meaning of “interp (...)

5To introduce this second ambiguity, I must start by referring to the different meanings the term “interpretation” adopts depending on what the object of interpretation is taken to be. According to Wróblewski, we can talk about interpretation sensu largissimo and interpretation sensu largo. Interpretation sensu largissimo applies to any entity able to bear meaning (in other words, any non-natural object). So, for instance, one might speak of the “interpretation” of an action, a social practice, an historic event, or a painting. In this case, interpretation would be the understanding of “an object as a phenomenon of culture”. Nonetheless, on other occasions, we use the term “interpretation” in a more restricted sense, the only possible object of which is a linguistic entity. This is what Wróblewski named interpretation sensu largo.5

  • 6 About this historical evolution, see Bobbio 1938: 7 ff., whom I support on this point.
  • 7 I believe these two meanings would match with Guastini’s opposition between “legal interpretation” (...)

6In the specific field of legal interpretation, we find a classical distinction, also connected to what is considered the object of this kind of interpretation, and this distinction presents clear parallels with Wróblewski’s distinction. I am referring to the distinction between interpretatio legis (interpretation of provisions contained in statutes or other authoritative legal documents) and interpretatio iuris (interpretation of law as a whole). Tarello connects these two categories with the historical evolution of the meaning of the term “interpretation” in the legal field.6 He suggests that the modern sense of legal interpretation is restricted to the interpretation of provisions. However, to the best of my knowledge we continue to use the term ‘legal interpretation’ to refer to interpretatio iuris (as when, for example, it is considered that gaps or antinomies resolution involve us in legal interpretation). When we approach different theories, we find that some use a stricter conception of legal interpretation (fundamentally those with an analytic orientation): one that exclusively refers to linguistic entities, and whose object in the legal field would be provisions contained in different authoritative sources of Law. According to these conceptions, the interpretative activity is always linked to the resolution of a problem of inaccuracy connected to a linguistic expression. On the other hand, we have conceptions of legal interpretation that refer to the “interpretation of law,” or interpretatio iuris, which incorporates a broader scope of activities than the previous case: not just precision of the meaning of linguistic expressions contained in legal provisions, but also the resolution of antinomies, principles balancing for the resolution of gaps, etc. The objective of interpretative activity so understood would be to reconstruct legal materials with the aim of seeking a unitary solution to a legal problem in the law. In this way, under the heading of “legal interpretation”, these conceptions include all of the activities usually grouped under the imprecise names “legal method” or “legal construction”.7 The Dworkinian conception of interpretation, as well as North American legal realism, could both be placed here.

7It is important to be aware that interpretation iuris will always imply carrying out interpretative activities in the sense of interpretation legis (interpretation of statutes or other authoritative legal materials): the starting point for the reconstruction of law must always be statutes, namely legal provisions endowed with authority. What I find most remarkable, however, is the not-so-obvious inverse relationship: in the legal field, the activity of interpreting a provision that raises more problems consists of determining its meaning under the light of the legal system as a whole. The decisions adopted by the different authoritative legal bodies (and also those of dogmatics) must be presented as legally justified, which means they must be in accordance with “law”. To this end, undertaking activities that fall under the broader sense of “interpretation”, connected with the reconstruction of law (balancing, dogmatic reconstruction, systematisation, etc.), will be required. Activities involved under both labels are therefore interrelated.

2 The role of interpretative arguments: scepticism, cognitivism and constructivism

  • 8 MacCormick & Summers 1991.
  • 9 This paper compares the arguments used to interpret statutes, but later this same working group als (...)
  • 10 MacCormick 1993.
  • 11 MacCormick departs here from the terminology used in a previous work (MacCormick & Summers 1991), i (...)
  • 12 In a similar sense, Ross argues that the classic characterisation of the distinction between “objec (...)

8Interpretative activity (in the dianoetic sense) consists of arguing in favour of attributing a certain meaning to an object. The questions to be addressed now deal precisely with the relevant arguments supporting a particular interpretative decision within the field of Law. Here, some unanimity in the starting point can be found. Among the works devoted to cataloguing the analyses of interpretative arguments, the one by the Comparative Legal Research Group coordinated by MacCormick and Summers8 deserves special mention. It compares the different types of arguments used in different countries9 for the purposes of statutory interpretation. According to MacCormick’s10 presentation of those arguments identified from such a comparison, there are three main categories of interpretative arguments plus an extra argument he considers “transcategorical”. First, there are “linguistic” interpretative arguments: those appealing to language itself as a source of reasons to favour one or another interpretation. This category incorporates both the arguments from the ordinary meaning (if a provision has an obvious and intelligible meaning, assuming that the language employed is that of common use, then there is a good reason to give effect to this ordinary meaning), and those from technical meaning (in the case of a text addressing a subject with a specialised vocabulary, terms having both technical and ordinary meaning are better understood in their technical meaning). Second, there are “systemic” arguments: those oriented toward an acceptable understanding of a legal text, seen as part of a whole (the legal system). This category includes six types of arguments: those that would respectively support the interpretations that best harmonise with (1) other interpretations of terms or expressions already used elsewhere in the same legal text; (2) judicial precedents; (3) analogous provisions contained in other statutes; (4) dogmatic constructions; (5) the general principles of law applicable to the case; or (6) the historically developed understanding of its object and purpose or its correctness. Third, there are “teleological and deontological” arguments, which are those offering the interpretations best suiting the purpose of the norm or offering the best realisation of a value considered fundamental by the legal system. Teleological arguments, for their part, refer to the purpose attributed to a segment of legislation on the presumption that it has been enacted by a rational legislature in a particular historical context. The idea is that we should treat legislation as a teleological enterprise where the telos or objective is independent of the terms of the enacted text, thereby providing a guide for their interpretation. Deontological interpretative arguments11 are arguments from the principles of righteousness or justice, which must be taken into account in the interpreter’s perspective on the issue at hand. Alongside these three major categories, MacCormick points out the possibility of appealing to the author’s intention as material to reflect –i.e. argue- on the meaning of the authoritative text. However, he warns us that this hides the well-known ambiguity between objective and subjective conceptions of intention: intention may be closely linked to linguistic elements of semantics or syntax, to all elements of the systemic context of a legal text, or to the objectives pursued or principles endorsed by the legislature either as a historical body or as an ideally rational legislator. He understands this argument from intention to be thus oscillating among the three main categories of interpretative arguments; he considers it should be treated as a “transcategorical” argument.12

  • 13 We must bear in mind that incompatible interpretations can be supported by arguments of the same ca (...)
  • 14 It is not easy to find examples of purely literalist theories of legal interpretation, since many o (...)
  • 15 Subjectivism (or intentionalism) is sometimes considered equivalent to interpretative originalism, (...)

9However, relevant questions concerning why precisely those arguments are at stake in attributing meaning in the domain of law, and which arguments should be given priority whenever supporting incompatible interpretations,13 remain. We can find different interpretative conceptions, depending precisely on the answer they give to these questions. We have a first group of theories confining themselves to ascertain the existence of the different canons of interpretative arguments, pointing out that in the case of conflict between them, the theory of legal interpretation has nothing else to say. These would be theories usually described as “sceptical theories” of interpretation. According to them, the nature of the interpretative activity is an act of mere will and, as such, there are no criteria of correctness to guide the choice between the different interpretative possibilities. Similarly, asking for the justification of different canons makes no sense: they are the relevant canons simply because they are the ones actually used (so, presumably, under these theories, these arguments could be completely different since there is nothing justifying them or making them necessary). At the other extreme, we find the so-called “cognitivist theories” considering the nature of the interpretative activity to be an act of knowledge, meaning, therefore, that there are “true” interpretations just as there are “false” interpretations. Within cognitivist theories, we can distinguish between those considering the criterion of truth to be the literal meaning of the words used by the legislator (so-called literalist theories of interpretation14), and those considering it to be consistent with the intentions of the legislator (so-called subjectivist or intentionalist theories15). In both cases, these theories give absolute priority to semantic or genetic arguments, respectively, which involves fundamentally empirical reasoning. According to the literalist theory, an interpretation would be correct when it coincides with the meaning that is in fact given to words, while for an intentionalist theory, an interpretation would be correct when it coincides with the intention the legislator actually had (assuming the existence and possibility of knowledge of this intention).

  • 16 Cf. Guastini 2008: 51 ff. He has argued on several occasions that, since all cases are in fact diff (...)

10Between these two extremes (scepticism and cognitivism), there is often another group of theories sometimes referred to as “intermediate theories”. Hart’s theory, for example, seeks to be precisely a middle ground between what he considers to be the “nightmare” (scepticism) and the “noble dream” (cognitivism). In his opinion, “interpreting law” would be a middle way between “saying law” (cognitivism) and “creating law” (scepticism). But is this middle way possible? Guastini, for example, denies such a possibility, as he considers the two previous alternatives to be mutually excluding. For him, Hart’s proposal would not really be a third option, since it would present interpretative activity in some cases as a purely cognitive activity (in easy cases) and, in others, as a purely volitional activity (in difficult cases).16

  • 17 As we have seen before, this distinction of the two uses of interpretative statements is pointed ou (...)

11However, another reading of Hart’s thesis is also possible as well as more plausible. We can accept that in easy cases interpretation would be a cognitive activity, though merely noetic (for easy cases are those where there are no doubts about meaning). Still, for the purposes of our analyses, difficult cases are the interesting ones: cases where doubts arise and where it is necessary to carry out interpretative activity in a dianoetic sense. The result of this activity is usually an interpretative statement represented as: “P means N”. It is the conclusion of an argument in which there are reasons to prefer the meaning “N” to other possible meanings. That interpretative statement (when used in an interpretative discourse, and not in a descriptive discourse of the interpretations made by someone else17) would be equivalent to a statement of the type “P must be understood as N”, or “It is better to understand P in the sense of N than in any other sense”, in which we necessarily find a claim to correctness. However, this claim does not need to be defined in terms of empirical verifiability. As we are going to see, it incorporates evaluative judgments.

  • 18 In my opinion, a good theory of legal argumentation must serve not only to describe or to analyse a (...)

12From this perspective, legal interpretation would be neither a mere act of knowledge (as cognitivists claim), nor a mere act of will (as sceptics claim), although it may contain some of both activities at various stages or moments of the interpretative process. Interpretative activity would be an argumentative activity that falls within the broader scope of general practical reasoning. Under this light, the theory of legal interpretation I defend can be considered a part of the theory of legal argumentation, and as such, it cannot simply claim to be descriptive or instrumental.18 It must also serve as a guide for legal praxis. For such purposes it must incorporate normative or evaluative elements. So, the theory of legal interpretation I seek to draw up here has a reconstructivist scope: it tries to account for actual interpretative practices, but also to present those aspects within them we justifiably used to evaluate them.

13The relevant issue would therefore be to elucidate which criteria of evaluation operate in argumentative activity in the specific field of legal interpretation. There are alternative criteria to those based on empirical verifiability, which, as we have seen, are used by cognitivist theories. Considering the aims and values that the practice in question seeks to develop, one such criterion could be pragmatic acceptability. We would then be talking about what has been called a “constructivist or value-dependent theory”. As we will see, these conceptions understand interpretation as an evaluative activity that carries out a reconstructive process of legal materials establishing the values and objectives pursued by law – so law is presented as a whole, coherently oriented towards the pursuit of ends considered valuable – and that determines which specific interpretation develops said values to their best extent.

14The following table aims to schematise the different interpretative conceptions to which we have referred:

Nature of interpretative
activity

Correction criteria

Scepticism

Volitional

Not applicable

Cognitivism

Cognitive

Empirical verifiability

Constructivism

Argumentative

Realisation
of legal value

15Indeed, as far as I can tell, all attempts to defend normative conceptions of interpretation (leaving aside sceptical conceptions not dealing with questions of interest here) end up using a constructivist or evaluative model of interpretation. The differences between them revolve around the determination of the value to be attributed to law. Some approaches advocate a more “formal” value, such as the ideal of the rule of law, which leads us to prioritize the authoritative aspect of law. Meanwhile, other approaches advocate a more substantive value, leading us to prioritize the valuable objectives law seeks to develop, namely the ideals of justice embodied in a combination of the values of equality and freedom.

  • 19 MacCormick 1993: 28-29.
  • 20 MacCormick 1993: 28.

16In this sense, MacCormick19 points out that beneath each of the categories of interpretative arguments lies a series of values and principles. Thus, beneath linguistic interpretation, the goals of the preserving “the clarity and accuracy in legislative language”, as well as prohibiting “retrospective judicial rewriting of the legislature’s words” are to be found. Beneath systemic interpretation there would be “a principle of rationality grounded in the value of the coherence and integrity in a legal system”. Lastly, beneath the teleological/deontological interpretation there would be the “respect for the demand of practical reason that human activity be guided either by some sense of values to be realised by action or by principles to be observed in it”.20 However, MacCormick points out that if we keep in mind that an important justifying reason for the maintenance of legal institutions is precisely the reduction in scope of interpersonal disputes over what constitutes the governing values and principles in the social sphere, this would, in turn, justify giving considerable weight to linguistic and systemic arguments in law. Thus, we can consider that although the literal meaning and the legislator’s intention play a very important role in legal interpretation (since they would be the starting point and in some cases also the arrival point), in reality, the interpretative process also always involves taking into account those reasons according to which we ought to interpret in a certain sense; reasons that cannot merely consist of the mere objective data of a literal meaning or certain intention.

  • 21 Nino 1994.

17In a similar vein, Nino21 also questions the classic subjectivist/objectivist opposition. He points out that, despite the strong arguments (subjectivist) intentionalism seems to have in its favour (referring to the idea that language is a means of communication and that there is communication insofar as the sender’s intention is captured by the receiver), things are not really that easy. First of all, we must be aware that we cannot recognise intentions apart from conventions: (objectifiable) social linguistic conventions allow certain words to be associated to a certain intention. At the same time, intention does not allow us to assign meanings to words different from those arising from conventions. However, there are several additional problems when inquiring about the intention of the author of a legal text: selection of the facts that constitute manifestations of intention; the construction of an intention on the basis of the intervention of a plurality of bodies or collective bodies; the admissibility of the reconstruction of intention in response to counterfactual circumstances; the determination of the level of abstraction in which the intention of the legislator must be described; and the reconstruction of intention in the event that some of the beliefs of the legislator were false (beliefs that may even be of an evaluative type). The conclusion that Nino reaches after analyzing all of these problems is that the intention of the legislator (as well as that of the constituent) is always a construction based on a host of evaluations. He thus points out that he would find it more honest to apply these evaluations directly to the selection of the meaning of the text requiring interpretation, since resorting to the legislator’s intention would fulfil ideological functions (hiding the evaluations behind a pretended “empirical” search for the intention as if it was fact).

3 In defence of a constructivist conception of legal interpretation

3.1 Interpretation, law, and practical rationality

18The starting point of this article was the consideration of legal interpretation (in a dianoetic sense) as an activity of an argumentative nature, inserted in the broader scope of general practical reasoning. Accordingly, the different answers we can find to the question of how law must be interpreted are, to a large extent, predetermined by theoretical assumptions adopted regarding two previous topics: the nature of law and the nature of practical rationality in general.

  • 22 Here I follow Atienza 2017b: ch. I.
  • 23 Cf. Dworkin 2006: 1 ff., 223 ff.
  • 24 Although, obviously, the plausibility of this combination will depend on the conception of the norm (...)

19With respect to the question of the conception of law, there are two variables to take into account.22 On the one hand, the idea of law that is hold: in this sense, some conceptions considered law to be a set of norms (what Dworkin has termed the taxonomic concept of Law23), whereas for others, law is a social practice oriented to the pursuit of certain ends. The first type of conception prioritises the structural and organizational dimension of the legal phenomenon, while the second type gives greater relevance to the teleological and evaluative aspects of it. On the other hand, the second variable relates to adherence to the positivist thesis of the conceptual separation between law and morality. Some conceptions of law do adhere to the positivist thesis, while some others depart from it. These two variables are relatively independent, so that it would be possible, for example, to hold an idea of law as a set of norms24 and, at the same time, to defend a conceptual connection between law and morality. Conversely, one could support an idea of law as a social practice, while doing so from a positivist perspective (for example, the second Jhering).

  • 25 I am using the expression “social practices” in the same sense that Dworkin uses it. Cf. Dworkin 19 (...)
  • 26 Of course, with the expression “Constitutional State” I am not referring to all the states that hav (...)

20I endorse the idea of law as social practice and a post-positivist (or non-positivist) conception of Law. On the one hand, a social practice, as I understand it,25 is not only, or even mainly, constituted by a series of regular, empirically observable behaviours. Any such practice entails a series of values that are intended to be realised through practice. These values provide the normative aspect of the practice and serve as criteria for evaluating the choice of one possible solution over others to the problems raised through this practice. On the other hand, a post-positivist conception of law claims that when we approach the law from certain perspectives (for example, if we are interested is an aspirational or doctrinal concept of law), the conceptual separation between law and morality does not stand up. Yet, this does not prevent this distinction from being fully operational from other perspectives. Law in a Constitutional State cannot be seen exclusively as an instrument for the purpose of achieving particular social objectives; it also incorporates moral values.26

21When reflecting on practical rationality, there are two possible positions. The first position denies the existence of rationality in the practical (i.e. value burdened) field. Thus, argumentation in the field of practical reason (unlike in the field of science) is not to be considered a “rational” activity due to the –allegedly– lack of objective criteria for evaluation. The second position claims that rationality has got a role in this area; therefore it assumes the existence of criteria allowing us to evaluate the correctness of practical argumentation.

  • 27 They could say that the “reason” for this regularity is simply a “matter of history”, but this answ (...)

22If someone is an irrationalist or a sceptic in the field of practical rationality, then obviously the question of how something should be interpreted (in our case, how law should be interpreted) is meaningless from an objective point of view. Interpretation would be an act of a volitional nature, alien to any rational evaluation. From this perspective, the only “rational” activity that can be carried out would be an activity consisting in give a mere description of existing interpretative practices; any inquiry on the criteria for their evaluation would exceed the limits of what a “theory of interpretation” can hold. A sceptical theorist may provide us with an account of the interpretative arguments that are in fact used in a particular community, but his research would not go beyond. Such a theorist would not be able to justify why those arguments and not others are used. Likewise a sceptic could not give an account of the reason why all communities (regardless of the differences in the possible legal-positive regulations in this respect) use the same types of interpretative arguments (linguistic, systemic, and teleological-deontological).27 Nor could this person tell us which of them weights more in case of conflict among them.

23The position held by the sceptic poses a small paradox: if the theorist must give an account of the interpretative practices that actually exist, such practices presuppose the existence of criteria of correctness. Legal interpretative statements involve a choice between several possible alternatives (if there was only one, we would not be faced with an interpretative problem and then there would be no “interpretation” in the strict sense) and such statements are the result of argumentation. To argue, that is, to give reasons in favour of something, does not make sense if we do not assume that there is a criterion to distinguish between good and bad reasons or, in general, better reasons than others. That is to say, we need to assume the existence of criteria allowing us to discriminate between reasons. Thus, even if it is possible to discuss which ones or how they are to be applied to a concrete case, the existence of those criteria is not under discussion. Ultimately, argumentative activity presupposes the acceptance of rationality in the field in question.

  • 28 Cf. Atienza 2013: 110.

24If we adopt, as I believe we should, a conception of interpretative activity as a “rational” argumentative activity, this leads us to consider that, on the one hand, it is a goal- oriented activity, i.e. it serves a purpose. On the other hand, it also leads us to consider that there are criteria with which to evaluate an argumentation, with which to consider it as good or bad, or better or worse than another.28 In order to answer the question of how law is to be interpreted, first we must determine what the purpose of such an activity is: why do we interpret law? Secondly, we must determine what the criteria are that allow us to evaluate such interpretations (something that, as we shall see, will depend on the answer given to the first question). All non-sceptical conceptions of legal interpretation must therefore provide answers to these two questions: why do we interpret law? And how is law to be interpreted, or what criteria should we use to evaluate interpretations?

3.2 Why do we interpret law?

  • 29 At this point I distance myself from Guastini, for whom legal interpretation is necessarily ascribe (...)
  • 30 In an article, precisely entitled “Why Interpret?”, Joseph Raz wonders why interpretation is centra (...)
  • 31 In this sense, Dworkin 2011: 134 ff. distinguishes between different types of interpretation, depen (...)

25The first question to be taken into consideration will then be what is the end or purpose of interpretative activity in the legal field: why do we interpret law? Well, we must be aware that under the category of “legal”, interpretation does not mean any possible activity of attributing meaning to legal texts (laws, regulations, sentences, administrative acts).29 Legal interpretative activity should be defined not merely by the fact that its objects are legal texts, but very importantly by the general purpose of the activity of legal interpretation, thus, to contribute (to different extents) to the shaping of legal practice.30 In other words, when we characterize an interpretation as “legal”, we need to refer to the context in which that interpretation is carried out, and not just to the type of object being interpreted.31 Of course, someone (think of a philologist or a sociologist) might want to attribute meaning to a legal text from a different perspective, namely from an external one, thus without being committed to the objective of contributing to the shaping of the legal practice. However, my claim is that such an interpretation, even if it is an interpretation of a legal text, is not a case of “legal interpretation” in the strict sense. At least, it would not fall under what jurists (theoretical or practitioners) do as such, that is, under their task of contributing to determining what specific rights and obligations a particular law establishes. Legal interpretation is not simply an interpretation of legal texts, but an interpretation thereof within a normative practice linked to texts.

  • 32 This is truth also with sceptical authors, such as Guastini or Kelsen. It is known that the latter (...)

26In this sense, the judicial interpretation and doctrinal interpretation are different interpretative types distinguished within legal interpretation.32 Judicial interpretation, more generally, is proper to law-applying bodies, which would be interpretation oriented to the resolution of a certain practical problem. Meanwhile, doctrinal interpretation is that carried out by theoretical jurists, which would be fundamentally an interpretation in abstracto, oriented to the reconstruction of the legal system. Both subjects are characterized by adopting (albeit to varying degrees of intensity) the point of view of the subject accepting the law and, in this sense, they would be committed to the purposes and values that law ultimately seeks to develop. The interpreter of law would therefore be a participant in the legal practice who, as such, helps to shape it.

  • 33 I addressed the characterization of these sceptical conceptions of legal interpretation in Lifante (...)

27It is true that those with sceptical conceptions of interpretation (such as Kelsen or Guastini33) would disagree with this characterization. In their understanding, interpretation carried out according to the science of law would be a cognitive interpretation with the purpose of knowing the interpretations that can possibly be attributed to a legal text without any practical commitment whatsoever. Their objective would therefore be purely theoretical – merely cognitive – and not practical: they do not intend to contribute to shaping practice, much less to its improvement. However, I doubt there are many jurists merely carrying out interpretative activities aimed simply at showing the possible meanings attributable to a provision. Even if there were, they only make sense (“are fruitful”) if they are conceived as instrumentally useful for a later practical activity (proposing a legislative reform, defending certain solution to a legal problem, etc.). In this sense, and as we have already seen, the cognitive interpretation discussed by Guastini (or the scientific interpretation of Kelsen) can basically be considered the first stage of a broader interpretative process that ultimately includes a practical application. In this way, there is a claim to the practical character of both the theory and the “science” of law, for none of them can be reduced to merely descriptive discourses.

  • 34 To put it in Dworkinian terminology: legal interpretation would be a case of “collaborative interpr (...)
  • 35 As Hart showed, occupying a distinctive place or office in a social organization (to participate in (...)

28Interpretative activity is therefore an activity shaping legal practice. The legal interpreter is a participant in that practice and not a mere observer, which has consequences on the purposes of his/her activity. The author of the object of interpretation (thus, law-making bodies) and the interpreter would participate in the same project or enterprise (the law). In that way, both would be sharing the general purpose pursued by the project and they both will have the duty to try to move it forward, improve the project to the furthest extent possible.34 What then should the legal interpreter look for when carrying her/his role?35 What objective should guide this activity? Obviously, the very same objective that any other participant in this practice must pursue: its improvement.

  • 36 In the same vein, in an article entitled “Professionalism as Interpretation”, Wendel draws attentio (...)

29Of course, one might think that this commitment to improving the practice would only be required for those interpreters whose role in law requires independence and impartiality (the prototypical case would be that of judges), not, for example, other participants in the legal practice. I am thinking fundamentally of lawyers, who operate in defence of particular interests that may not coincide with – although they must have a place in – the purposes attributable to law. This is true, but still I believe that this does not imply these interpretations are not aiming at improving legal practice as a whole. However, it must be accepted that the improvement will be in a more indirect sense, with many more mediations, we might say.36 We must not forget that, to the extent that these other interpreters want their interpretative proposals to be taken up by third parties, particularly by those responsible for making law effective (various legal authorities), they will have to adopt the same perspective of the impartial accepting subject, and they will have to present reasons supporting their interpretative choice in terms of the purposes and values of the legal practice.

3.3 How to interpret law?

30If we accept the idea that the objective of legal interpretation must be the improvement of legal practice, the question of how to interpret law leads us to a previous question: why consider law itself valuable? Law is interpreted to find its meaning in those cases when prima facie it permits more than one possible reading. To compare all these different and competing prima facie interpretations, we must take into account the very values that law intends to materialize.

31Thus, the criteria of correctness in the field of the interpretative activity commits us to the answer to the question on the value of law: the ideal of the rule of law. Obviously, the rule of law is a controversial concept: there are a diversity of conceptions in competition. They vary in their level of formalism since they give more or less weight to each of the two dimensions that a legal theory must integrate: the authoritative dimension and the axiological dimension.

  • 37 For the characterization of this formal (or legalistic) concept of rule of law and its distinction (...)

32In the Anglo-Saxon context, it is usual to contrapose a restricted (sometimes referred to as ‘formal’ or ‘legalistic’) concept of ‘rule of law’37 to a more substantive concept. This restricted conception is the most widespread and is maintained by, among others, Raz, for whom:

  • 38 Raz 1979: 211.

“[t]he rule of law is a political ideal which a legal system may lack or may possess to a greater or lesser degree. That much in common ground. It is also to be insisted that the rule of law is just one of the virtues which a legal system may possess and by which it is to be judged. It is not to be confused with democracy, justice, equality (before the law or otherwise), human rights of any kind or respect for persons or for the dignity of man”.38

  • 39 Díaz 1966: 31 (translation my own).

33However, in Spanish literature we usually use the concept of “Estado de Derecho” (taken from the German tradition as a translation of Rechtsstaat). Following Elías Díaz’s classic reflections, we can consider that it operates as an evaluative label to designate those states that comply (at least to a certain degree) with certain normative demands. These demands imply the submission of the state to its own law through the regulation and control of all powers and actions of the state by means of laws. In turn, these laws must have been created according to procedures of free and open popular participation. Along with the rule of law requirement (under “law” one must consider that which has been democratically produced), which constitutes the first ingredient – with logical and historical priority over the rest – of the notion of the “Rechtsstaat”, the following defining features ought to also be included: “b) division of powers: legislative, executive and judicial; c) legality of the administration: acting according to law and sufficient judicial control; d) fundamental rights and freedoms: formal legal guarantee and effective material fulfilment”.39

34These different elements are not, however, all at the same level. The first element (ruling with respect to a higher law) enjoys both logical and historical priority over the rest. The objective of making human rights -as moral demands- effective is precisely what endows the institutions that make their effectiveness possible with real value, and is what constitutes the legal-political model that we call rule of law. Thus, the last element (the guarantee of rights and freedoms), we could say, has a justificatory priority over the rest. Therefore, for Elías Díaz, the rule of law condition would be only the first of two requirements of the normative ideal of the Rechtsstaat, with serving to protect rights being the other. In this sense, it should be noted that the first condition is instrumental to the purposes of the second. Thus, accordingly, the value of the rule of law is instrumental to the protection of human rights.

  • 40 Laporta 2007.
  • 41 Joseph Raz has also claimed, in a similar sense, that the “observance of the rule of law is necessa (...)
  • 42 Cf. Atiyah & Summers 1987: 11-17. It is important to note that, for these authors, formality (in an (...)

35That same idea of instrumentality of the political ideal of rule according to a higher law has been developed by Laporta,40 for whom the rule of law is a regulative moral idea: a set of ethical demands regarding power and law that must be fulfilled to the greatest possible extent.41 The moral value of this demand lies in its direct link to personal autonomy. The existence of norms that provide us with a certain degree of predictability in social relations is a necessary condition (although clearly not sufficient) for the development of personal autonomy, understood as the demand that a person’s life be something defined by himself in a framework of personal freedom and projective rationality. Based on this relationship, some authors (such as Laporta himself) consider it necessary to opt for a “formalist” understanding of the value of law. Legal security or certainty (connected to the maximization of predictability) is presented as depending exclusively on certain formal features of the Law, in the four senses of formality pointed out by Atiyah and Summers:42 authoritative formality, when both the validity and the hierarchy of a norm depend on its origin; content formality, which depends on the degree to which the content of the rule is defined by a fiat and not by direct reference to the substantial reasons that would justify it; interpretive formality, when literal interpretation takes primacy over other interpretative methods that allude to underlying purposes or values; and mandatory formality, which depends on how difficult it is for a reason to be displaced by opposing reasons in the applicative reasoning. From this “formalist” perspective, the predictability of law depends on whether the application of its norms, which must be identified by their authoritative origin, can be carried out independently of the substantive reasons that justify them. This implies that the norms adopted the form of rules of action enjoy complete semantic autonomy, and their interpretation is limited to verifying their literal meaning. The optimal situation would seem to be applying law through mere deductive reasoning. Any evaluative term or attribution of discretionary power, even any interpretative activity at all, would undermine predictability, thus understood. It is for this reason (as we have seen, based on a specific conception of the value of law) that some authors, such as Laporta, defend a literalist conception of interpretation.

36However, this conception seems to forget, or at least to underestimate, that many problems of interpretation are generated precisely because the “literal” meaning of legal text is often far from unequivocal. On other occasions, though the literal meaning may seem clear when considering a legal provision separately, the meaning may raise doubts in light of other provisions that must be taken into account (systematic element), or in light of the purposes that the establishment of certain provisions pursue (teleological element).

  • 43 In a previous paper (Lifante Vidal 2013), I distinguished between three dimensions of predictabilit (...)
  • 44 Llewellyn 1933: 58. I quote Fuller 1934: 432.

37In this sense, this formalist perspective on the value of legal certainty overlooks another relevant consideration: the predictability that law should provide us is not only adjustable, meaning it can be given to a greater or lesser extent, but it is also “complex”, in the sense that it is projected in diverse dimensions. One of these, to which we have just referred, is the objective dimension, which is concerned with determining what the law allows us to foresee. Next to this, however, there is also a subjective dimension, which refers to who can foresee law.43 The degree of predictability, here, will depend on which individuals are in a position to carry predictions out. If we distinguish, as Llewellyn has,44 between legal certainty for laymen and legal certainty for jurists, it should be admitted that the former does not depend so much on a total pre-determination of the content of judicial decisions within pre-existing legal rules. The ability to recognise the principles underlying the rules and, ultimately, the congruence between legal norms and ways of life, is what fundamentally allows the general population to orient themselves, and thus contributes to generating the necessary predictability for them to be able to satisfactorily develop their life plans. If we are aware of this function of principles, we will understand how substantive reasons, not only formal ones, also play a fundamental role in generating predictability. On another note, it should be borne in mind that there are regulations that typically affect classes of subjects with competing interests and with different possibilities of real “access” to information: citizens/administration, consumers/suppliers, employers/workers, etc. Sometimes the same regulation can generate different degrees of predictability for each of the classes of subjects affected. Let us consider, for example, consumer law, which seems to be designed precisely on the basis of this contrast between classes of subjects that have varying degrees of access both to regulation and to information relevant for determining the consequences of such regulation. It is important to realize that each class of individuals affected by a regulation may be interested in the predictability of one or the other aspect. Sometimes, what increases the relevant predictability for one party may decrease it for another.

  • 45 Atienza 1985: 118-119 refers to this interconnection between legal certainty and other components o (...)

38The predictability we consider valuable and which, therefore, the ideal of the rule of law obliges us to maximize, will be the one that affects reasonably well-founded expectations: that is, expectations that must be considered legitimate in light of the principles and values recognised by law itself. If this is the case, we must admit that legal certainty, in a constitutional state of law committed to a series of substantive values, cannot continue to be conceived of as a value dependent solely on the formal features of Law. Nor is it true that it can develop in equal measure independently of the justice or injustice of the law concerned.45

  • 46 In similar sense, MacCormick says that legal interpretation requires us to reflect on “we must refl (...)

39If we look at the different catalogues of interpretative arguments that we have analysed, we will find that some of the categories of arguments included there are directly connected to the first dimension of law mentioned earlier: the authoritative dimension. I am referring here to linguistic arguments as well as to genetic or pragmatic arguments that appeal to the “intention” of the legislator, and perhaps also to systemic arguments. In contrast, teleological and deontological arguments would be directly connected with the second dimension of law: the evaluative dimension. Interpretation must fit legal materials: the meaning to be attributed must fall within the possible meanings attributable to the legal materials considering semantic rules, purposes, and systematic reconstruction of the materials. Going further would be inventing the law, not interpreting it. Here lies the relevance of the authoritative dimension of legal interpretation. However, when these arguments support various interpretative possibilities, the task of the interpreter remains subject to law (obviously in a non-positivist sense, but in the above-mentioned sense): legal practice demands the interpreter to choose the interpretation that makes these authoritative legal materials become the best possible example of law, namely the fairest. This is why I believe that an evaluative conception of interpretation in the legal field ultimately refers us back to the need to develop an ethical-political theory46 - it integrates the different spheres of practical reason: law, morality and politics.

Acknowledgments.— This work was supported by the Spanish Ministerio de Economía y Competitividad under Research Project DER2017-86643-P. A previous version of this paper was presented and discussed at the congress “En teoría hay mujeres (en teoría)” (27-28 September 2018, Universitat Pompeu Fabra, Barcelona). I am very grateful to all the participants in this congress and most particularly to Silvia Zorzetto for her interesting and detailed observations. I am also very grateful to Victoria Roca, who carefully read and discussed different versions of this article.

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Bibliography

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Notes

1 Cf. Lifante Vidal 2018: 19-28.

2 Gianformaggio 1987: 90 ff.

3 Gianformaggio’s distinction between noetic and dianoetic interpretation coincides to a large extent with similar distinctions made by other authors. For instance, Wróblewski (Wróblewski 1987: 35) differentiates between two communicative situations: direct understanding of a language and the existence of doubt, which may be subordinated by the interpretation (in what he considers to be its strict sense). For an overview of the controversy in Polish doctrine between this stricter approach to interpretation and the broader one, according to which interpretation would be a ubiquitous activity, see Grabowski 2015. Also, Marmor (in line with the Wittgensteinian contributions on this matter) distinguishes between “the concept of interpretation and semantic meaning” (Marmor 1992: 21 ff.). Understanding or explaining the meaning of an expression, Marmor says, is an activity guided by (semantic) rules, contrary to that of interpretation, guided by paradigms, but not rules. Thus, for him, an “interpretation” constitutes an exception to immediate understanding or comprehension.

4 Kahneman 2011.

5 Cfr. Wróblewski 1987: 34 ff. and Wróblewski 1992b: 87 ff.). However, this second meaning of “interpretation” is still broad in its meaning, and that is because Wróblewski introduces in his analysis a third meaning of interpretation. He called this interpretation sensu stricto, which he considered to be the “determination of a meaning of a linguistic expression when there are doubts concerning this meaning in a concrete case of communication”. In this third case, the kind of objects being interpreted would be, for Wróblewski, the same as in the case of interpretation sensu largo: linguistic entities. Nonetheless, it also requires the presence of doubt about their meaning, with this doubt generating the need to carry out an interpretative activity in this strict sense. Thus, Wróblewski differentiates between two situations of communication: the direct understanding of a language and the existence of doubt, which must be overcome through interpretation sensu stricto. What distinguishes both cases would be, as we shall see, the different activity required to “capture” or “establish” the meaning of the linguistic expression in each one of these situations.

6 About this historical evolution, see Bobbio 1938: 7 ff., whom I support on this point.

7 I believe these two meanings would match with Guastini’s opposition between “legal interpretation” (referring here to what we called “interpretatio legis”) and “legal construction”, which would correspond with all the activities included in “interpretatio iuris” (cf. Guastini 2012). I addressed Guastinian distinction in detail in a previous work (Lifante Vidal 2018: 110-114).

8 MacCormick & Summers 1991.

9 This paper compares the arguments used to interpret statutes, but later this same working group also made a comparison regarding the interpretation of precedents (MacCormick & Summers 1991).

10 MacCormick 1993.

11 MacCormick departs here from the terminology used in a previous work (MacCormick & Summers 1991), in which he spoke of “evaluative” arguments instead of “deontological” ones.

12 In a similar sense, Ross argues that the classic characterisation of the distinction between “objective” and “subjective” interpretation, based on the objective of each (in one case, that of discovering the meaning of the text, and in the other, of the author’s intention), is untenable. Faced with this approach, Ross considers that the intention of the author of the expression is an internal phenomenon of consciousness and, therefore, inaccessible. In this sense, subjective interpretation would be understood as the interpretation in which, in addition to linguistic expression, other relevant factors such as context and circumstances are considered (Ross 2004: 121 ff.).

13 We must bear in mind that incompatible interpretations can be supported by arguments of the same category: two linguistic (or systemic) arguments can support different interpretations (Cf. MacCormick 1993).

14 It is not easy to find examples of purely literalist theories of legal interpretation, since many of the problems of interpretation arise precisely because of linguistic indeterminacy. For a sound defence of literal interpretation in the legal field, see Laporta 2007: ch. VIII.

15 Subjectivism (or intentionalism) is sometimes considered equivalent to interpretative originalism, but Rodríguez-Toubes Muñiz 2014 argues that this is a mistake. He makes a double distinction between, on the one hand, objectivist and subjectivist conceptions and, on the other hand, originalist and evolutionary conceptions. While the first distinction refers to whether the meaning ascribable is the meaning “that emerges from the text” or the meaning intended by its author, the second distinction refers to whether the meaning (either objectively ascribable to the text or subjectively to the legislator) is that which the norm had at the time of its enactment, or at the time of its interpretation (and, where applicable, of its application). Although subjectivism and originalism are usually associated with one another, Rodríguez-Toubes Muñiz points out that they should not be confused because they do not always go hand in hand. Thus, for example, he points out that Scalia would be at the same time a representative of an objectivist and originalist conception of interpretation (Rodríguez-Toubes Muñiz 2014: 324).

16 Cf. Guastini 2008: 51 ff. He has argued on several occasions that, since all cases are in fact difficult (for him, the indeterminacy of the law is omnipresent), the only plausible response is scepticism. However, and as we will see, in his last writings (Guastini 2014) he seems to accept that there may be cases (although few) in which there are not several interpretative possibilities, but only one.

17 As we have seen before, this distinction of the two uses of interpretative statements is pointed out by Guastini 1999: 205.

18 In my opinion, a good theory of legal argumentation must serve not only to describe or to analyse actual argumentative instantiations, but also to evaluate them. Here I follow Atienza 2013.

19 MacCormick 1993: 28-29.

20 MacCormick 1993: 28.

21 Nino 1994.

22 Here I follow Atienza 2017b: ch. I.

23 Cf. Dworkin 2006: 1 ff., 223 ff.

24 Although, obviously, the plausibility of this combination will depend on the conception of the norm that one has.

25 I am using the expression “social practices” in the same sense that Dworkin uses it. Cf. Dworkin 1986.

26 Of course, with the expression “Constitutional State” I am not referring to all the states that have a formal constitution (a mere superior norm), but to the States with a Constitution in a material sense, a constitution that characterizes a so-called political constitutionalism. Cf. Aguiló Regla 2019.

27 They could say that the “reason” for this regularity is simply a “matter of history”, but this answer is related, at most, to the explanatory reasons or causes of this regularity, not to its justificatory reasons: they had to admit that the situation could have been completely different.

28 Cf. Atienza 2013: 110.

29 At this point I distance myself from Guastini, for whom legal interpretation is necessarily ascribed to the genre of interpretations of texts and would have nothing in common with other interpretative genres (for example, that of social practices). Cf. Lifante Vidal 2018: 117 ff.

30 In an article, precisely entitled “Why Interpret?”, Joseph Raz wonders why interpretation is central to legal practices. He considers that the answer to this question is found in the status of sources of law. This is why he considers that “continuity” and “authority” provide the key to his question, but the different question about how to interpret law is also connected in his opinion with other factors, namely “equity” and “legal development” (Raz 1996: 349 ff.).

31 In this sense, Dworkin 2011: 134 ff. distinguishes between different types of interpretation, depending on the “occasions” in which they are carried out, each of which is defined not so much by the object of interpretation, but by the purpose pursued as well as, in part, by the type of relationship that exists between the interpreter and the object to be interpreted in each case. These interpretative types or occasions are the collaborative, the explanatory, and the conceptual. Collaborative interpretation is that in which it is assumed that the object of interpretation has an author who has initiated a project (an enterprise) in which the interpreter is also involved and tries to advance. In this way, the author and the interpreter would share the general purpose pursued by the project. Explanatory interpretation does not presuppose that the interpreters and creators of the object or event to be interpreted are on the same level (they do not share a project). In conceptual interpretation, the interpreter seeks the meaning of a concept that has been created not by individual authors, but by a community itself. This community includes the interpreter himself, so that on this occasion of interpretation, the distinction between creator of the object to be interpreted and interpreter dissipates to a certain extent. Dworkin considers legal interpretation (fundamentally judicial interpretation) a case of collaborative interpretation.

32 This is truth also with sceptical authors, such as Guastini or Kelsen. It is known that the latter distinguishes between authentic and non-authentic interpretation; under the latter he only focuses in interpretation which is carried out by legal science (cfr. Kelsen 2005: 355 ff.).

33 I addressed the characterization of these sceptical conceptions of legal interpretation in Lifante Vidal 2018: ch. II.

34 To put it in Dworkinian terminology: legal interpretation would be a case of “collaborative interpretation” (Dworkin 2011: 134 ff.).

35 As Hart showed, occupying a distinctive place or office in a social organization (to participate in a project) implies being responsible for the performance of these duties, or for doing what is necessary to fulfil them (Hart 1992: 212). This is precisely one of the meanings of the term responsibility Hart distinguishes, namely, the “role-responsibility”.

36 In the same vein, in an article entitled “Professionalism as Interpretation”, Wendel draws attention to how self-destructive and irrational it would be for lawyers not to worry about improving legal practice, given that legal practice is necessary to be able to defend one’s own particular interests: “any plausible ethical argument–i.e., one that is worthy of the respect of similarly situated others–must take account of the consequences of widespread manipulation of formal legal norms” (Wendel 2005: 1210).

37 For the characterization of this formal (or legalistic) concept of rule of law and its distinction from a substantive (or non-legalistic) one, see Craig 1997 and Barber 2004. This designation is criticized by Gardner 2012, who doubts the suitability of these labels to refer to the features included in the ideal of the rule of law, at least as it is developed by Fuller 1969 or Raz 1979 and Raz 1994.

38 Raz 1979: 211.

39 Díaz 1966: 31 (translation my own).

40 Laporta 2007.

41 Joseph Raz has also claimed, in a similar sense, that the “observance of the rule of law is necessary if the law is to respect human dignity” (Raz 1979: 221). Respecting human dignity entails treating humans as persons capable of planning and plotting their future. Thus, respecting people’s dignity entails respecting their autonomy, their right to control their future.

42 Cf. Atiyah & Summers 1987: 11-17. It is important to note that, for these authors, formality (in any sense) is a matter of degree, so that a reason may be more or less formal and/or substantial. A legal reasoning would be “formalist” when there is a degeneration of one or more of the formal aspects present in the law to the detriment of its substantive aspects. In fact, for these authors, both excess of formality and excess of substantivity would be reprehensible (cf. Atiyah & Summers 1987: 28 ff.). In a subsequent solo work, Summers departed somewhat from this formal/substantive distinction by opting for a broader definition of what “form” in law implies. However, he would still agree with the risks of excess “formalism” (cf. Summers 2006: 61, n. 32).

43 In a previous paper (Lifante Vidal 2013), I distinguished between three dimensions of predictability: 1) An objective dimension: what can be predicted? 2) A subjective dimension: who can predict? And 3) a temporal dimension: until when can one predict?

44 Llewellyn 1933: 58. I quote Fuller 1934: 432.

45 Atienza 1985: 118-119 refers to this interconnection between legal certainty and other components of justice, indicating its character as an adjectival value.

46 In similar sense, MacCormick says that legal interpretation requires us to reflect on “we must reflect on the values and principles appropriate to the institutions of the societies, the states and the supranational and international communities which we inhabit. We need to think about the meaning of constitutionalism […], democracy, the rule of law, the separation of power, procedural justice, equality before and under the law, human rights and the integrity of public offices” (MacCormick 1993: 28). Also, Dworkin 2010 argues that the jurist (he refers primarily to judges), in his task of interpreting law, also necessarily ends up performing, consciously or unconsciously, functions of a moral and political philosopher.

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References

Electronic reference

Isabel Lifante Vidal, « In defence of a constructivist conception of legal interpretation »Revus [Online], Online since 11 July 2020, connection on 15 August 2020. URL: http://journals.openedition.org/revus/5897; DOI: https://doi.org/10.4000/revus.5897

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About the author

Isabel Lifante Vidal

Professor of Law, University of Alicante (Spain)

Address: Facultad de derecho, Universidad de Alicante – Carretera San Vicente del Raspeig s/n – 03690 San Vicente del Raspeig, Alicante – Spain

E-mail: isabel.lifante@ua.es

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