The paper purports to provide an analytical treatment of the truth and legal interpretation issue. In the first part, it lays down a conceptual apparatus meant to capture the main aspects of the legal interpretation phenomenon, with particular attention paid to the several kinds of linguistic outputs resulting from interpretive activities. In the second part, it recalls three different notions of truth, focussing, so far as systemic truth is concerned, on the difference between deductive and rhetorical (...) normative systems. In the third, and last, part, it shows in which ways the phenomenon of legal interpretation encompasses truth-apt entities, leaving the choice between austere and liberal alethic pluralism to the reader. A few, final remarks address the formalism/scepticism problem. (shrink)

"In Realms of Legal Interpretation, Kent Greenawalt focuses on how courts decide what is legally forbidden or authorized, and how context shapes their decisions. The problem, he argues, is that we do not, and never have, agreed on all the details of the standards United States judges should employ - like everyone else, judges have different ideas of what constitutes good common sense. Moreover, circumstance regularly throws up hurdles... Different judges react in different ways. Acknowledging that courts will (...) never agree upon a uniform approach to applying norms and interpreting the law, Greenawalt's aim is to provide a capacious, user-friendly model for approaching hard cases sensibly in both public and private law. Just as importantly, the book serves as a pithy guide to the major forms of legal interpretation for nonlawyers" --. (shrink)

When legal theorists ask questions about legal interpretation—such as what it fundamentally is, what it aims at, or how it should work—they often do so in ways closely tethered to existing legal practice. For example: they try to understand how an activity legal actors (purportedly) already engage in should be done better, such as how judges can better learn about the content of the law. In this paper, I discuss a certain kind of “conceptual ethics” (...) approach to thinking about legal interpretation, which is less tethered to existing legal practice (or the existing meaning of core pieces of legal terminology). The approach I explore asks questions about legal interpretation in a way that is tethered to what legal (or “legal-ish”) concepts people should deploy, as part of arguments on behalf of engaging in legal (or “legal-ish”) practices different from our current ones. In exploring this approach, I aim to help us better understand the landscape of philosophical issues about legal interpretation, including parts of it that I think have been underexplored. (shrink)

Pierluigi Chiassoni’s wonderful book, Interpretation without Truth,1 is an important and welcome addition to the ongoing conversations about interpretation, legal realism, and legal truth. Chiasson...

This thought-provoking book explores the multifaceted phenomenon of objectivity and its relations to various aspects of the law and practical reasoning. Featuring contributions from an international group of researchers from differing legal contexts, it addresses topics relevant not only from a theoretical point of view but also themes directly connected with legal and judicial practice. Beginning with an introduction from the editors proposing a new account of the meaning of objectivity, the book is then divided into three broad (...) themes illuminated by this account. Chapters first address a range of problems linked to the relationship between objectivity and jurisprudence, before turning in the second part to an analysis of the functions of objectivity in legal interpretation. The final part then deals with the function of objectivity in practical reasoning. Offering a spectrum of scholarly insights within a coherent intellectual framework, this book will be a crucial read for scholars and graduate students of legal philosophy and legal theory. Its discussion of objectivity as it relates to legal practice and practical reasoning will also be of interest to practitioners such as judges, arbitrators and lawyers. (shrink)

In order to achieve a desired effect of tax legal interpretation, its linguistic mechanisms are frequently insufficient. Elements of paralinguistic interpretation are more and more often indispensable. It applies inter alia when domestic tax law regulations must be verified in the light of the EU tax law. However, the study depict interpretative problems regarding the institution of remuneration of excess payments, which is regulated in Polish tax law. Considerations presented in this article confirm that legal (...) class='Hi'>interpretation of tax law is a complicated process. It is important to establish correct system connection between the analyzed legal regulations and other provisions, often contained in other legal acts. Moreover, it seems necessary to refer to the purpose-oriented interpretation of the law. Only then a chance for a satisfactory final result of the provision’s legal interpretation can be guaranteed. What is more, such an effect will create an element being a part of a logically composed and arranged unity. (shrink)

By significantly diminishing the role intentions play in communication, in Imagination and Convention Lepore and Stone attempt to overthrow the Gricean paradigm which prevails in the philosophy of language. The approach they propose is attractive to theorists of legal interpretations for many reasons. Primary among these is that the more general dispute in the philosophy of language between Griceans and non-Griceans mirrors the dispute between intentionalists and non-intentionalists in legal interpretation. The ideas proposed in Imagination and Convention (...) naturally support the non-intentionalist camp, which makes them unique in the contemporary philosophy of language.In this paper I argue that despite an almost universal acceptance for the Gricean paradigm in legal interpretation, a strong, externalist approach to language, one in which interpretation is based on conventions, not intentions, better reflects the nature of legal language. The latter functions in societies as a written, public discourse to which many individuals contribute; the number of contributions renders the identification of individual intentions impossible, making it badly suited to a Gricean, intention-based analysis. Lepore and Stone’s discourse-based, non-Gricean alternative provides a better tool for the theorist of legal interpretation to analyse legal language. In what follows, I first present an overview of the disputes in legal interpretation that may be affected by Imagination and Convention. In the second section, I analyze several of Lepore and Stone’s theses and apply them to issues in legal interpretation, paying particular attention to their concept of “direct intentionalism.” In the last section, I outline some proposals for finishing the anti-Gricean revolution, which involves Ruth Millikan’s idea of conventions as lineages. (shrink)

It is a common metaphor that the text is a window onto the world that it depicts. I want to explore this metaphor and the insights it may offer us for better understanding legal interpretation. As in the opening epigraph from James Boyd White, I shall develop the metaphor of the text as window in three ways: the text may be transparent, opaque, or translucent. My goal will be to argue that the best way to understand legal (...) interpretation is to conceive of the legal text as translucent, but along the way I will compare the merits also of considering the legal text as either transparent or opaque. (shrink)

Introduction: dimensions of inquiry -- Speaker intent and convention; linguistic meaning and pragmatics; Vagueness and indeterminacy: three topics in the philosophy of language -- Literary interpretation, performance art, and related subjects -- Religious interpretation -- General theories of interpretation -- Starting from the bottom: informal instructions -- The law of agency -- Wills -- Contracts -- Judicial alterations of textual provisions: Cy Pres and relatives -- Conclusion and a comparison.

The aim of the article is to characterise and analyse Paul Amselek’s research approach to legal hermeneutics. The text provides an outline of Amselek’s assumptions and theses about legal interpretation, considered in the broad context of hermeneutics, and in the narrower context of legal logic and argument. In point of fact, one of the methodological aims of Amselek’s philosophical reflection is to harmonise the two indicated contexts for framing interpretation — the wide context of hermeneutics, (...) and the more narrow context of legal logic and argument. Amselek refers to issues in communication theory, reaching beyond the hermeneutic concept of text interpretation and evocation of the original authorial intention. He analyses the legal text-message in its content and argument layers, he also endeavours to specify the methodological possibilities of interpreting the attitudes and motivations of subjects — participants in communication situation. He also inquires about the ethical attitudes of jurisdiction authorities, performing the interpretation of a body of law — the subjects responsible for lawmaking and the execution of law. Adopting post-Enlightenment anthropological assumptions, Amselek accepts the primacy of rationality in cognition, decision making, and activity of the human individual. However, in his considerations on interpretation he concurrently underscores the role of affective factors, motivating many choices and actions made by legal subjects. (shrink)

This book discusses the question of whether legal interpretation is a scientific activity. The law’s dependency on language, at least for the usual communication purposes, not only makes legal interpretation the main task performed by those whose work involves the law, but also an unavoidable step in the process of resolving a legal case. This task of decoding the words and sentences used by normative authorities while enacting norms, carried out in compliance with the principles (...) and rules of the natural language adopted, is prone to all of the difficulties stemming from the uncertainty intrinsic to all linguistic conventions. In this context, seeking to determine whether legal interpretation can be scientific or, in other words, can comply with the requirements for scientific knowledge, becomes a central question. In fact, the coherent application of the law depends on a knowledge regarding the meaning of normative sentences that can be classified as being structured, systematically organized and tendentially objective. Accordingly, this book focuses on analyzing precisely these problems; its respective contributions offer a range of revealing perspectives on both the problems and their ramifications. (shrink)

Introduction: dimensions of inquiry -- Speaker intent and convention; linguistic meaning and pragmatics; Vagueness and indeterminacy: three topics in the philosophy of language -- Literary interpretation, performance art, and related subjects -- Religious interpretation -- General theories of interpretation -- Starting from the bottom: informal instructions -- The law of agency -- Wills -- Contracts -- Judicial alterations of textual provisions: Cy Pres and relatives -- Conclusion and a comparison.

Ratio Juris, Volume 35, Issue 2, Page 191-222, June 2022.

The article presents so-called “derivational” theory of legal interpretation and analyzes its basic assumptions. The derivational theory of legal interpretation is still little known outside of Poland. The article is divided into two parts. The first part is presenting the normative model of legal interpretation according to the derivational theory. In the second part, the basic assumptions and features of the theory are analysed in context of some other approaches to legal interpretation. (...) The author argues that there are two levels of the derivational theory: local and universal. The local level of theory is related to the fact that it was designed for Polish legal system and legal culture. However, beyond its local features, the derivational theory is presenting strong theoretical framework and some significant universal ideas about legal interpretation. This creates universal level that can be called the “hard core” of the theory. The author characterizes the elements of this hard core, and in particular the most important element: the idea that the legal interpretation consists in the reconstruction of legal norms from legal provisions. (shrink)

While some descriptive and normative theories of legislation account for an extensive role of legal interpretation in legislation, others see its legislative role as marginal. Yet in contemporary constitutional democracies, where legislation is limited and guided by constitutional norms, as well as international and supranational law, legal interpretation must play some role in legislation—even if all or most of legislative activity may not be adequately described and evaluated as legal interpretation. In this chapter, I (...) aim to explore some implications of recognizing the role of legal interpretation in legislation—notably, for the conceptualization and significance of legal expertise in the legislative process, as well as for determining the moral duties of legislative representatives. First, I argue that the role of legal interpretation in legislation calls for institutional reforms in legislatures in order to ensure that legal expertise is adequately channeled into the legislative process, including agenda-setting. Second, I argue that interpreting legal norms through legislation implies specific moral duties for legislative representatives, both in their relations to one another and in their relations vis-à-vis their constituents. I show that giving legal interpretation its due in a descriptive and normative account of legislative activity does not imply an elitist understanding of legislation, and it does not compromise our conception of legislatures as loci of political and moral disagreement and democratic representation. (shrink)

I argue that disputes within constitutional theory about whether recent supreme court decisions exceed the scope of legitimate judicial review and disputes within legal theory about the nature and determinacy of law are best seen and assessed as disputes over the nature of legal interpretation. I criticize the interpretive assumptions on which these disputes generally depend and defend a theory of interpretation which tends to vindicate the determinacy of law even in hard cases and the style (...) of recent court decisions which many critics find troublesome. (shrink)

In this paper I will tackle three issues. First, I aim to briefly outline the backbone of semantic minimalism, while focusing on the idea of ‘liberal truth conditions’ developed by Emma Borg in her book ‘Minimal Semantics’. Secondly, I will provide an account of the three principal views in legal interpretation: intentionalism, textualism and purposivism. All of them are based on a common denominator labelled by lawyers ‘literal meaning’. In the paper I suggest a novel way of viewing (...) this common denominator as almost identical to the Borgian ‘liberal truth conditions’, at least at a conceptual level. In the third section I will focus on the conceptual similarities between the two ideas. I intend to depict that, although legal theorists do not admit it explicitly, they treat literal legal meaning as minimal propositional content that can be ascribed liberal truth conditions. There are two main objections to liberal truth conditions: their under-determinacy and unintuitive character. Both objections can be applied to ‘literal meaning’. However, the idea of liberal truth conditions gives an adequate account of what lawyers call literal meaning and is helpful in explaining the mechanism of understanding of provisions and reasons leading to the necessity of statutory interpretation. (shrink)

(1999). Critical hermeneutics and American legal interpretation:A search for the meaning of new york times v. sullivan. Angelaki: Vol. 4, Judging the law, pp. 173-188.

In this article we investigate the relationship between legal translation and legal interpretation. The common wisdom is that these activities are closely related, but the nature of that relationship remains disputable. We adopt the perspective of legal theory—as opposed to the perspective of translation studies—which seems to be underrepresented in the literature of the subject. We start with distinguishing between the two notions of legal interpretation: the wide sense and the narrow sense. We argue (...) that the relationship between legal translation and legal interpretation changes significantly depending on the notion of legal interpretation that is assumed. The wide sense is often assumed by translation scholars and it renders legal interpretation as a necessary prerequisite for legal translation. Jurists, on the other hand, usually assume the narrow sense which renders legal interpretation and legal translation as two distinct activities with some shared features. We then focus on four issues of legal interpretation in the narrow sense: the types of legal interpretive problems, the creation of legal interpretive problems, the methods of legal interpretation, the resolution of legal interpretive problems. We conclude with a detailed comparison of legal translation and legal interpretation in the context of those four issues. (shrink)

The main purpose of legal interpretation is to create conditions for the effective functioning of law and its components by clarifying their true content, which eliminates any doubts and ambiguities. The purpose of this article is: first, to analyze the provisions of current Ukrainian legislation for identifying the general approaches embodied in it and the principles for the implementation of legal interpretation activities by state power bodies; secondly: presentation on the basis of modern achievements and developments (...) of legal science of the system of measures for standardization of such activity, bringing it in line with the needs of law enforcement practice. The solution of the set tasks was carried out using the method of philosophical dialectics, a system of general scientific and special scientific methods of cognition, which are based on the principles of objectivity, comprehensiveness, complexity. Based on the analysis of the normative material, it is concluded that there is no single harmonized approach in the Ukrainian legislation on the procedure for providing clarifications of the content of normative-legal acts. The authors give arguments on the need to clarify and streamline the legal interpretation activity by state bodies and propose a number of measures to achieve this goal. Based on the conducted analysis of the normative material, the authors outline the main problematic issues of the legislative definition of the basics of legal interpretation and provide specific proposals for improving the current legislation in this area. (shrink)

The subject of this study are the argumentation strategies applied by the Polish and German apex courts competent in criminal matters, namely the Supreme Court and the Federal Court of Justice, respectively. The investigation encompasses a total of 200 rulings issued by the criminal panels of these bodies. Particular focus was put on examining which arguments both courts apply to solve interpretation problems, and secondly, how these courts systematize the interpretation process. Methodologically, the examination utilizes, inter alia, the (...) principles of qualitative research, without neglecting the legal dogmatic perspective. A crucial theoretical foundation underlying this study is the distinction between formalistic and substantive legal cultures. The examination reveals that neither the Polish nor the German legal culture is purely formalistic or value-oriented. Nevertheless, the Supreme Court of Poland shows greater affinity for formalistic arguments, whereas the substantive interpretation methods are more widespread in the judicature of the German Federal Court of Justice. In particular, the Polish Court prefers the linguistic interpretation, whereas the German Court favours the purposive approach. (shrink)

"My argument is as follows. In the first section, I sketch briefly the ways in which intentionalism might provide a solution to the problem of vagueness. The second section describes the different areas in which counterfactuals must be invoked by intentionalism. In the third section I point out that on a classic analysis of counterfactuals - that of David Lewis and Robert Stalnaker - the truth conditions of counterfactuals depend on relations of similarity among possible worlds. Since similarity is vague, (...) so are counterfactuals. Finally, I show that there is no unique solution to the problem of vagueness for the specific types of counterfactuals required by intentionalists - those referring to authors' or legislators' mental states, and those attempting to transport historical authors into the present. Although some counterfactuals are relatively 'insensitive' - in Lewis's sense -- those required in intentionalist interpretation are at least moderately sensitive. This means taht different contexts will resolve the vagueness in different ways. The choice among contexts must be made by the interpreter and is not determined by author's intentions. Hence the vagueness due to counterfactual reasoning about author's intention leads to indeterminacies that cannot be resolved by intentionalism itself. Intentionalism is a solution neither to the problem of vagueness nor to the problem of indeterminacy." Distinguishes between strict intentionalism and moderate intentionalism. Both are often seen as a means for reducing vagueness in legal language. However, counterfactual intentions are needed to resolve certain problems. First, in combining actual intentions, e.g. in a legislature, where different combinations may result in different legislation. Second, it is needed to resolve conflicts between intentions, particularly between different levels of abstraction. Third, reducing vagueness, which will be necessary even with enactment intentions. Fourth, there may be no determinate intention that would even, in principle, resolve a borderline case - e.g. when intentions are conflated. [For discussion of application and enactment intentions, see Goldsworthy, "Originalism in Constitutional Interpretation," Federal Law Review 25: 1.] Lastly, counterfactuals may be necessary to distinguish between application and enactment intentions. Lewis on counterfactuals: "For Lewis and Stalnaker, the key idea in the explication of truth conditions of counterfactuals is that of 'comparative overall similarity' of possible worlds. A counterfactual is true if and only if in the closest, most similar world to the actual in which the antecedent of the conditional is true, the consequent of the conditional is also true." Thus, there may be a determinate relevant world for some cases - i.e. there may be a counterfactual that determines the answer to a counterfactual question. This, however, will not always be the case. For example, counterfactuals concerning Caesar being the leader of N. Korea. Here, for Lewis, where there are ties of closeness of counterfactuals, all tied CFs will be false. When considering counterfactual intentions for the sake of interpretation, some may be determinate or insensitive. Normally, however, this will not be the case. "For intentionalism to resolve the matter of whether the regulation prohibiting vehicles prohibits toy cars as well, one of these counterfactuals must be true and the other false. Imagine a possible world in which the oncsideration of the borderline case is added to the authors' mental states. It is likely that connected belief will be affected as well. For example consideration of the aim of the regulation will occur as a consequence of the consideration of whether the regulation applies to the borderline case: Is ensuring peace and quiet in the park overriding, or are there exceptions to accommodate children's games? When there are changes in a constellation of men tal states, we will have to imagine a situation in whichh the legislators' beleifs are very different from what they in fact were. This creates at least a profound epistemological problem, because, as Dworkin puts it: "[it] has the effect of sharply reducing the amount of historical evidence that is relevant to answering the counterfactual." More important, however, in some worlds in which the legislators consider the case of a child's toy car, they will treat the peace and quiet purpose as overriding, whereas in others they will treat the children's play purpose as overriding. This means that different worlds will resolve the truth-value of the counterfactuals differently." "If I am right that counterfactual reasoning is ubiquitous in intentionalism, intentionalism suffers from an extra dimension of vagueness and is therefore at a disadvantage when measured against theories that do not rely on counterfactuals.". (shrink)

Legal scholars talk and write about interpretation in terms of the meaningof words, and for many legal philosophers legal interpretation involvessubsuming particular situations under general rules. However, the more youexamine legal interpretation the more confusing the whole idea ofinterpretation becomes. The aim of this paper is to use Bernard Lonergan'sdiscussion of functional specialization to make sense of this disorderlystate of affairs.

An essential aim of this study is to present principles of the legal interpretation of the term “building structure” for the needs of the imposition of a real estate tax. The analysis of both administrative courts’ judgments and the subject literature indicates lack of consistency in the scope of this term’s meaning. In my opinion, interpretative discrepancies are caused by incorrect legal interpretation of the legal definition. It should be noticed that numerous controversies connected with (...) the legal interpretation of the term building structure are connected with considerable tax burden of this type of building objects. Taxpayers, for obvious reasons, are therefore “interested” in not finding the objects owned by them to be building structures in the meaning of the Tax Law, or possibly in finding only those objects’ specified parts to be building structures. It is easily apparent particularly in the case of objects of complex structures. On the other hand, however, for many municipalities in Poland, income from building structures’ taxation creates municipal budgets. This way the practice of applying local tax law encounters numerous disputes between taxpayers and self-government tax authorities. (shrink)

This essay explores themes raised by Scott Soames in Chapter Twelve of The World Philosophy Made. Soames’s key contribution is the articulation of a general theory of legal interpretation and more specific theory, Constitutional Deferentialism, that is a form of public meaning originalism. His development of the connections between the philosophy of language and legal interpretation have been especially important and influential.

In this paper I put forward some arguments in defence of inclusive legal positivism . The general thesis that I defend is that inclusive positivism represents a more fruitful and interesting research program than that proposed by exclusive positivism . I introduce two arguments connected with legal interpretation in favour of my thesis. However, my opinion is that inclusive positivism does not sufficiently succeed in estranging itself from the more traditional legal positivist conceptions. This is the (...) case, for instance, with regard to the value-freedom principle, which is commonly accepted by inclusive positivist scholars. In contrast with this approach, I try to show, in the concluding section, how a constructivistic version of inclusive positivism could legitimately acknowledge the presence of value-judgments in the cognitive activities of jurists and legal theorists. (shrink)

There is a familiar disagreement between Justice Antonin Scalia of the US Supreme Court and Ronald Dworkin over whether the Eighth Amendment to the US Constitution could be plausibly interpreted so as to prohibit capital punishment. The dispute reflects a deep divergence in approach to statutory interpretation. I explore this divergence by paying particularly close attention to its metasemantic background. I then argue that the metasemantic orientation clearly vindicates the Dworkinian side.

"16 'On Justification and Interpretation', ARSP-Beiheft, 53, pp. 255-68." -- "17 'Authority Reasons in Legal Interpretation and Moral Reasoning', ARSP Supplementa (III), pp. 144-52." -- "18 'Two Types of Substantive Reasons: The Core of a Theory of Common-Law Justification', Cornell Law Review, 63, pp. 707-88." -- "19 'Reasonableness and Objectivity', Notre Dame Law Review, 74, pp. 1575-603.

ABSTRACTAs the title suggests, I take up three motifs in the article. Legal science, on a narrower reading, examines the law qua object of legal cognition. Substituting legal cognition for traditio...

"Language shapes and reflects how we think about the world. It engages and intrigues us. Our everyday use of language is quite effortless--we are all experts on our native tongues. Despite this, issues of language and meaning have long flummoxed the judges on whom we depend for the interpretation of our most fundamental legal texts. Should a judge feel confident in defining common words in the texts without the aid of a linguist? How is the meaning communicated by (...) the text determined? Should the communicative meaning of texts be decisive, or at least influential?... [Contributors] argue that the meaning of language is crucial to the interpretation of legal texts, such as statutes, constitutions, and contracts. Accordingly... analysis of language from linguists, philosophers, and legal scholars should influence how courts interpret legal texts."--. (shrink)

The fields of linguistic pragmatics and legal interpretation are deeply interrelated. The purpose of this paper is to show how pragmatics and the developments in argumentation theory can contribute to the debate on legal interpretation. The relation between the pragmatic maxims and the presumptions underlying the legal canons are brought to light, unveiling the principles that underlie the types of argument usually used to justify a construction. The Gricean maxims and the arguments of legal (...) interpretation are regarded as presumptions subject to default used to justify an interpretation. This approach can allow one to trace the different legal interpretive arguments back to their basic underlying presumptions, so that they can be compared, ordered, and assessed according to their defeasibility conditions. This approach allows one to understand the difference between various types of interpretive canons, and their strength in justifying an interpretation. (shrink)

Law is perceived as a stabilising mechanism in an everchanging world and, as such, is founded on the quest for the one “true” meaning of legal norms as a basis for the rule of law. But I shall suggest that it is futile to seek a fixed meaning of legal norms or the one “true” method for interpreting them. The argument will be built by first considering the “trialectics” between hermeneutics, linguistics, and jurisprudence, and then taking a systematic (...) approach to law itself, to this end drawing inspiration from the work of Ferdinand de Saussure. I shall finally argue for the necessity of a more procedural understanding of the rule of law. (shrink)