Abstract
Some philosophers (notably Soames 2008b, 2011) have recently emphasized the similarities between lawmaking and the production of linguistic utterances in ordinary communication. Based on these similarities, they have defended a theory of legal interpretation (known as “communication theory”) that identifies the legal content of a lawmaking act with (some level of) the communicative content of the authoritative “utterance”. While different versions of the theory differ with respect to which level of utterance content they regard as relevant, they agree that the theory’s scope is fully general in that it applies to all legal systems. In this paper, we argue that this commitment of the theory is problematic. By examining the role of interpretative arguments in legal interpretation, we argue that there is a tension between this commitment and the doctrine of the rule of recognition (Hart 1961). In light of this, we argue that Hartian positivism is only compatible with a weakened or “minimal” version of the theory. Insofar as both the communication theory and Hartian positivism provide true insights on how legal content is determined, this result gives us reason to accept only a minimal version of the theory.
And this undulating imprecision, this uncertainty, is the strange matter of which he is made.
—Jorge Luis Borges (1999, 279).
J. J. Moreso is professor of legal philosophy at Pompeu Fabra University, Barcelona (Spain). Samuele Chilovi is a doctoral student at the University of Barcelona, his research has been partially funded by FFI2012-35026 and FFI2015-66372-P MINECO/FEDER, UE.
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Notes
- 1.
See, for instance, Pound (1922), Chap. III: “Three steps are involved in the adjudication of a controversy according to law: (1) Finding the law, ascertaining which of the many rules in the legal system is to be applied, or, if none is applicable, reaching a rule for the cause (which may or may not stand as a rule for subsequent cases) on the basis of given materials in some way which the legal system points out; (2) interpreting the rule so chosen or ascertained, that is, determining its meaning as it was framed and with respect to its intended scope; (3) applying to the cause in hand the rule so found and interpreted.”
- 2.
We will be using the terms norm, requirement, and obligation interchangeably as shorthand for the facts about the content of the law in a given legal system, at a given time.
- 3.
All three variants share the common assumption that the object (source) whose meaning they purport to account for is some sort of act of meaning. If the assumption is correct, this may seem to rule out what jurists sometimes call “evolutive interpretation” from the arguable interpretative strategies, since the relevant feature of the speech act (be it sentence or utterer meaning) should in any event be fixed at the time the speech act is performed. We don’t rule out this possibility, though we notice that there are at least two ways in which some form of evolutive interpretation may still be argued for. One is by arguing that (i) word meaning is the interpretative target and, (ii) though it is fixed at the time of the text’s enactment, (iii) some terms’ extension may vary over time even without there being any change in meaning. (This position is defended by Perry (2011), who views it as a form of textualism, since it takes word and sentence meaning [at the time of the enactment] as authoritative.) Alternatively, evolutive interpretation may be advocated for the interpretation of some terms by (i) assuming utterance meaning as the interpretative target, and (ii) defending an account of certain terms as interpretation-sensitive, thereby conferring a content-creating role on the interpreter in relation to them. (This view is defended in Cappelen (2009) with respect to the interpretation of legal texts.)
- 4.
- 5.
Soames (2008b) and Neale (2008, 2012) correctly criticize both the majority and the dissent opinion in the judgment issued by the US Supreme Court on Smith v. United States (508 U.S. 113 S. Ct. 2050, 1993) for their failure to appreciate the ways in which an expression’s or a sentence’s linguistic meaning may underdetermine what a speaker uses that sentence to assert on a given occasion.
- 6.
- 7.
This is Savigny’s original German: “Mit diesen vier Elementen [grammatischen, logischen, historischen, systematische] ist die Einsicht in den Inhalt des Gesetzes vollendet. Es sind also nicht vier Arten der Auslegung, unter denen man nach Geschmack und Belieben wählen könnte, sondern es sind verschiedene Thätigkeiten, die vereinigt wirten müssen, wenn die Auslegung gelingen soll.”
- 8.
We call theories (a), (b), and (c) the three versions of CT corresponding to each of these levels of meaning.
- 9.
Unless one agrees with Grice (1989, 87) that “‘S (utterer) said that p’ entails ‘S did something x by which S meant that p.’”
- 10.
In doing so, we restrict the scope of the analysis to comparing theories (a) and (b), partly because it is still unclear what theory (c) exactly amounts to.
- 11.
- 12.
Theory (b) is defended by Soames (2008b).
- 13.
Soames (2013).
- 14.
Marmor (1992), Endicott (2012), and Neale (2008) appear to agree (and we agree with them) that it is pointless to speak of “interpretation” when the content of the law is obvious; jurists usually express this thought with the maxim in claris non fit interpretatio. So it would probably be useful to employ a different term in reference to such cases (Marmor’s and Endicott’s usages converge on understanding).
- 15.
For simplicity, we are ignoring some aspects of legal practices (e.g. precedent) that have no counterpart in ordinary conversational contexts (while this is not to say that CT cannot account for them). However, it is still correct to say that, according to CT, since the principle of epistemic asymmetry holds in the legal sphere, too, the relation between interpretation and meaning here is the same as it is in conversational contexts. In this regard, it is also worth noting that there may be interesting parallels to draw between the phenomenon of overruling and that of retraction. Many thanks to Eliot Michaelson and Chiara Valentini for urging us to tackle this issue.
- 16.
Our description of theories (a) and (b) tracks the assumption, implicit in the work done by the proponents of these views, that the propositional content of assertoric uses of sentence tokens (assertive utterances, for short) is not determined in a way which is different from that of prescriptive ones. Therefore, we think it is fair to take (b) theorists to hold the view that the content of a conditional sentence used to make a legislative utterance is the same as the corresponding indicative conditional used to make an assertive speech act. Further, we assume the truth conditions of indicative conditionals to be those given by the truth table for the material conditional. The account of theory (b) we present owes its plausibility to the fact that, in general, Soames himself takes it for granted that the content of the law is whatever the lawmakers assert or stipulate—which means that at least he thinks lawmakers perform speech acts whose content is no different from that which they would have were the lawmakers instead making assertions; this, indeed, leads him to speak interchangeably of lawmakers asserting and stipulating things. Similarly, Neale (2008) does not distinguish what is said or implicated by speakers in ordinary conversation from lawmakers saying or implicating something in writing and voting for directives—at least not in the relevant sense that would make the content of (say) conditionals expressed in legislative utterances differ from those figuring in assertoric uses of language.
- 17.
It is a central feature of CT that if a text’s linguistically based content (see Soames 2008b), i.e. a sentence’s semantic content plus the speaker’s intentions, fails to yield a single correct result for a given case, then the law’s content is underdetermined with respect to that case. The fact that in his discussion of the open texture of language, and hence of law, in chap. VII of The Concept of Law, Hart appeared to embrace a similar view has sometimes led scholars to think that Hart’s views on adjudication commit his theory of law to CT. That seems a stretch to us; for it seems implausible that Hart’s central thesis—the doctrine of the rule of recognition—is compatible with the view that the relation between words and obligations is grounded in an account of the sort defended by CT (see Sect. 4.1–4.5).
- 18.
Theory (b) is not for this reason committed to denying that the propositions entailed by true propositions of law are also part of the law. Indeed, one property of implicatures, which distinguishes them from logical implications, is that they are cancellable without contradiction. So (b) theorists could consistently maintain that entailed law is part of the law while excluding implicatures from it.
- 19.
This way of putting the point is somewhat loose, for in order to be correct, one would have to say “that was implicitly communicated by the speaker in uttering p,” since utterances do not implicate anything, nor do sentences, of course: speakers do. However, the context should make clear what we mean in framing the point in this way.
- 20.
The maxims of conversation were first formulated by Paul Grice (1989) and represent one of his greatest contributions to pragmatic theory and to the philosophy of language more generally.
- 21.
For an assessment of the project of analysing the relations between the legal agents taking part in the approval and interpretation of statutes along the lines of Grice’s cooperative principle and maxims of conversation, see Chiassoni (1999) and Marmor (2011a, b). The analysis they offer is partly critical of the project, for they emphasize the strategic character of the agents’ behaviour on three different levels of the legal context: (i) in legislative speech, between the legislators involved in the enactment process; (ii) in judicial interpretation, the “conversation” between lawmakers and judges often involves ongoing efforts on each side to redefine the division of labour between the judiciary and the legislative branch of government; and (iii) in adjudication, between the parties to the judicial dispute. However, it should be noticed that even if this were correct (which it probably is), it would not by itself pose an objection to the thesis that statutory implicatures are part of the law. This is so because even if the maxims were strategically violated by the agents involved—indeed, even if there was no such thing as a Gricean-like set of maxims in the legislative and judicial context—implicatures could still be produced, since the function of the maxims is epistemic, not constitutive, with respect to them. Endicott (2014) makes the related point that, while even in ordinary conversation agents happen to behave strategically, this is no ground for denying that they produce implicatures. Many thanks to Eliot Michaelson for discussion on these issues.
- 22.
Raz (2009a) defends the view that there can be interpretive pluralism in law—a thesis which, as we saw, contrasts with the communication theory of legal interpretation. Indeed, it is not surprising that the position Raz advocates is premised on the explicit denial of there being a close affinity between simple speech acts and laws (ibid. 300).
- 23.
This way of framing the issue is meant to remain neutral between (a), (b), and (c) with regard to the notion of “communicative content,” and beyond statutes, it should be applicable to any kind of lawmaking performed through the enactment of provisions framed in a natural language (e.g. constitutions, regulations, directives).
- 24.
On some occasions, he hints at semantic content and at the legislators’ achievement intentions as other possible candidates.
- 25.
By legal facts, we mean facts about the content of the law in a given jurisdiction (at a given time).
- 26.
One point related to ours has been made in Bayón (2002).
- 27.
Thanks to Guglielmo Feis, Dan López de Sa, Eliot Michaelson and Chiara Valentini for helpful comments and discussions on previous drafts of the paper.
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Moreso, J.J., Chilovi, S. (2018). Interpretive Arguments and the Application of the Law. In: Bongiovanni, G., Postema, G., Rotolo, A., Sartor, G., Valentini, C., Walton, D. (eds) Handbook of Legal Reasoning and Argumentation. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-9452-0_17
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