Abstract
What can a philosophical analysis of the concept of interpretation contribute to legal theory? In his recent book,Interpretation and Legal Theory, Andrei Marmor proposes a complex and ambitious analysis as groundwork for his positivist assault on “interpretive” theories of law and of language.
I argue (i) that the crucial element in Marmor's analysis of interpretation is his treatment of Ludwig Wittgenstein's remarks on following rules, and (ii) that a less ambitious analysis of interpretation than Marmor's can take better advantage of those insights about rules. I explore some implications of such an analysis for the role of interpretation in legal reasoning.
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Oxford: Clarendon Press, 1992, to which I will refer by page numbers in brackets.
For a contrasting argument that Dworkin's theory is not a coherence theory at all, see Joseph Raz, “The Relevance of Coherence”,Boston University Law Review 72 (1992): 273, “Appendix” at 317.
It should be noted that Marmor's remarks on Donald Davidson are particularly important: Marmor's own theory is presented as an alternative to Davidson's theory of radical interpretation (14–24). Hans Johann Glock has recently developed related objections to radical interpretation, arguing that the theory leads to an absurd semantic nihilism: “The Indispensability of Translation in Quine and Davidson”,Philosophical Quarterly 43 (1993): 194 (see esp. 201-3).
Philosophical Investigations, trans. G. E. M. Anscombe (Oxford: Blackwell, 1976) [to which I will refer as ‘PI’ with section numbers], section 201.
Marmor does not address another potential “notion of meaning”, meaning to do something. An artist, for example, might have intentions (to terrify, to delight . . .) that do not seem to fit Marmor's notion of “meaning that”, because they are not propositional (they cannot be represented as propositions that the artist intended to express). But the notion of “meaning that”, as Marmor uses it, should be understood broadly to include all sorts of intentions to communicate.
Ronald Dworkin,Law's Empire (Cambridge, Mass.: Belknap Press, 1986), p. 52.
Ibid., p. 58.
But Marmor later raises direct objections to the constructive model, arguing that in some cases interpreters choose not to make the best of the object, and mentioning John Finnis's argument that there is often no best interpretation because interpretations are incommensurable (53–55).
Marmor supports this claim with a suggestion that “interpretation” in science is really just explanation, while interpretation in literary, theological or judicial contexts differs from explanation in that it imposes meaning on an object (13–14). Perhaps the difference he has in mind is that explanation simply reports meaning, without imposing it. But there is no support for the claim (if I am right that it is Marmor's claim) that scientific “interpretation” does not impose meaning on data. Certainly further information could turn out to make an interpretation of scientific data untenable, but that is true of interpretations in other areas as well. There are important differences between scientific interpretation and literary interpretation, but they are not accounted for by the distinction between explanation and interpretation.
Law's Empire, supra, n. 6, p. 51. But Dworkin concludes that even scientific interpretation may be “constructive” in his sense (p. 53).
Cf. Marmor's discussion of “family resemblance” concepts: “Suppose we cannot find any one feature due to which chess, football, and patience are all called ‘games’; does this mean that any of them is not a standard example of ‘game’? Clearly not.” (133-34).
For the history of the term “pragmatics” from its invention in 1938, and for a gruelling expedition through possible ways of distinguishing semantics from pragmatics, see Stephen C. Levinson,Pragmatics (Cambridge: Cambridge University Press, 1983), pp. 1–35.
Marmor himself gives an example of a pragmatic convention.: “‘Do you have the time?’ is ... a request to provide a certain piece of information” (26). And see the discussion at p. 160, n. 2.
PI 71, 208-11; see alsoRemarks on the Foundations of Mathematics, 3rd ed. (Oxford: Blackwell, 1978), ed. G. H. von Wright, R. Rhees, G. E. M. Anscombe, trans. G. E. M. Anscombe, pp. 228, 343-44.
Thus the verb “to interpret” has an ordinary imperfect tense; the verb “to understand” does not. Marmor says that interpretation “must consist, at the very least, in one's ability to specify (to oneself or others) how one understands a given utterance” (22). And he says that understanding (along with explanation) and interpretation are “two conceptually separate enterprises” (23). If understanding a rule is an ability, it is not an enterprise. Marmor also calls interpretation “imposition” (13) or “attribution” (31) of meaning. These definitions support the characterization of interpretation as an activity, and they carry the same dual grammatical roles (activity/result) as “interpretation”.
See Margaret Radin, “Reconsidering the Rule of Law”, Gene Anne Smith, “Wittgenstein and the Sceptical Fallacy”, Brian Bix, “The Application (and Mis-Application) of Wittgenstein's Rule-Following Considerations to Legal Theory”, and Frederick Schauer, “Rules and the Rule-Following Argument”, all in Dennis Patterson, ed.,Wittgenstein and Legal Theory (Boulder: Westview, 1992). Marmor's chapter on Wittgenstein and rules is also reprinted in that book. A revised version of Brian Bix's article is reprinted in Bix, Law, Language and Legal Determinacy (Oxford: Clarendon Press, 1993). The argument of Frederick Schauer's paper became part of hisPlaying by the Rules (Oxford: Clarendon Press, 1991). Margaret Radin's paper and Schauer's paper are reprinted in Frederick Schauer, ed.,Law and Language (Aldershot: Dartmouth, 1993). See also Brian Langille, “Revolution Without Foundation: The Grammar of Scepticism and Law”,McGill LJ 33 (1988): 451, and Scott Landers, “Wittgenstein, Realism and CLS: Undermining Rule Scepticism”,Law and Philosophy 9 (1990): 177.
As do Bix, Langille and Smith, supra, n. 16. See G.P. Baker and P.M.S. Hacker,Wittgenstein: Rules, Grammar and Necessity (Oxford: Blackwell, 1985); see alsoScepticism, Rules and Language (Oxford: Blackwell, 1984).
Ken Kress gives a similar account, succinctly: “For Wittgenstein, understanding a rule simply consists of the ability to apply it.” Ken Kress, “Legal Indeterminacy”,California Law Review 77 (1989): 283 at 333.
Baker and Hacker,Wittgenstein: Rules, Grammar and Necessity, supra, n. 17, p. 91.
It is uncharacteristic for Wittgenstein to propose to “restrict” the word “interpretation” to a technical sense (“the substitution of one expression of the rule for another”). We do not necessarily substitute expressions when we interpret: if you ask me for a jack, and I decide that you want the telephone connecting device and not the ship's flag, I may not reformulate anything, though I certainly could articulate my interpretation by reformulating your request. Wittgenstein adopts his technical sense to prevent the misconception that leads to absurdity, by highlighting the possibility of articulating an interpretation of a rule as a reformulation of the rule. Elsewhere, he uses “interpretation” in its ordinary sense -e.g., PI 34. Marmor talks as if the technical sense proposed in PI 201 were the correct meaning of “interpretation” (“what the term ‘interpretation’ properly designates” (153)). It ought to be made clear that he is (legitimately) using that term in Wittgenstein's technical sense.
And seeWittgenstein: Rules, Grammar and Necessity, supra, n. 17, p. 149. Wittgenstein expressed this regress inZettel §229: “So when we wanted to say ‘Any sentence still stands in need of an interpretation’, that meant: no sentence can be understood without a rider” (Oxord: Blackwell, 1978), ed. G. E. M. Anscombe and G. H. von Wright, trans. G. E. M. Anscombe.
And thus Baker and Hacker: “. . . interpretations of rules do not determine meanings. Rather the meanings of rules, like those of all symbols, lie in theiruse.” Ibid., p. 133.
With the same idiosyncrasy Marmor considers law a “form of communication” (122), rather than something that can be communicated.
For a general review of this question, see the articles cited in n. 16, supra.
Law's Empire, supra, n. 6, p. 87.
Law's Empire, supra, n. 6, p. 266, cf. also 353-54.
See above, no. 8.
“Positivism and the Separation of Law and Morals”,Harvard Law Review 71 (1958): 593 at 607.
Ibid. Cf. “General terms would be useless to us as a medium of communication unless there were such familiar, generally unchallenged cases.” The Concept of Law, 2d edition (Oxford: Clarendon Press, 1994), p. 126.
“Positivism and the Separation of Law and Morals”, supra, n. 28, at 607.
The Concept of Law, supra, n. 29, p. 126.
Cf. “We say that, in order to communicate, people must agree with one another about the meanings of words. But the criterion for this agreement is not just agreement with reference to definitions, e.g., ostensive definitions - but also an agreement in judgments. It is essential for communication that we agree in a large number of judgments.” (Remarks on the Foundations of Mathematics, supra, n. 14, p. 343). This parallel supports Marmot's claim that Hart's distinction between core and penumbra “is well entrenched in a highly sophisticated conception of meaning and language, namely, that of Wittgenstein” (125). The penumbra metaphor is at least as old as Bertrand Russell's description of vagueness: “All words are attributable without doubt over a certain area, but become questionable within a penumbra, outside which they are again certainly not attributable.” (“Vagueness”,Australasian Journal of Psychology and Philosophy 1 (1923): 84 at 87). And compare Glanville Williams, “Since the law has to be expressed in words, and words have a penumbra of uncertainty, marginal cases are bound to occur”. “Language and the Law- III”,Law Quarterly Review 61 (1945): 293 at 302. Willard Quine also used the penumbra metaphor inWord and Object (Cambridge, Mass.: M.I.T. Press, 1960), p. 128.
“Authority, Law and Razian Reasons”,Southern California Law Review 62 (1989): 827 at 892.
G. P. Baker and P. M. S. Hacker,Wittgenstein: Meaning and Understanding (Oxford: Blackwell, 1983), vol. I, pp. 224–25.
PI 87, 141-42.
This distinction corresponds roughly to the rather tentative distinction that Hart drew inThe Concept of Law, supra, n. 29, pp. 131-35 (and see p. 263), between rules “with only a fringe of open texture” (p. 133) or “determinate rules” (p. 135) on the one hand, and “vague” or “very general” or “variable” standards (pp. 131-35).
For Raz's own views on the role of intention, see his “Intention in Interpretation”, in Robert George, ed.,The Autonomy of Law (forthcoming).
Law's Empire, supra, n. 6, p. 50. Dworkin suggests, however, that even conversational interpretation may be constructive (see n. 10 above). But the argument offered here against saying that conversational interpretation is intentionalist is also an argument against its being constructive: the interpreter may legitimately (or illegitimately) have a variety of purposes other than to make of a conversational remark the best possible example of its genre.
“Introduction”,Law and Language, supra, n. 16, at xii. I benefitted from discussing earlier versions of this article with Joseph Raz and Steve Smith.
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Endicott, T.A.O. Putting interpretation in its place. Law Philos 13, 451–479 (1994). https://doi.org/10.1007/BF02350479
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DOI: https://doi.org/10.1007/BF02350479