Legal Interpretation as a Rule-Guided Phenomenon
© Springer International Publishing Switzerland 2015Michał Araszkiewicz, Paweł Banaś, Tomasz Gizbert-Studnicki and Krzysztof Płeszka (eds.)Problems of Normativity, Rules and Rule-FollowingLaw and Philosophy Library11110.1007/978-3-319-09375-8_19
19. Legal Interpretation as a Rule-Guided Phenomenon
Faculty of Law, Jagiellonian University, Kraków, Poland
The content of law is derived from legal texts in a process of interpretation that is not random but is rather supposed to follow some rules. There are different types of rules of interpretation, and they govern different levels of every interpretation process. In describing this process, an analogy can be drawn between some notions present in the contemporary philosophy of language and legal interpretation. Rules of interpretation constitute legal content; i.e. they provide it with truth conditions. Rules of interpretation are given by a political theory adopted together with semantic theory grounded in social practice. Ontologically, the most problematic issue is the question of what makes an application of rules of interpretation correct or incorrect. It is part of a certain view of law to suggest that indeed there are always facts of some kind (either social practice or moral values) that guide the application of given rules of interpretation. This common picture of law is built on some presuppositions, among them normativity (guidance and justification), objectivity and classical realism. Within this view, it is also presupposed that there are right answers to questions about the content of law. It is argued that Kripkenstein’s sceptical paradox poses a threat to this view, as it questions the existence of any facts that could guide any types of rules of interpretation. Such an ontological threat does not necessarily weaken the justificatory function of legal interpretation.
KeywordsInterpretationMeaning theoryContent of lawRule guidanceRule scepticism
Law can be seen as a system that contains a certain set of rules and relations between them. In legal practice, these rules are derived from legal texts in a process of interpretation. Interpreters look for the proper meaning of what is written so they can say that what is meant by a text is in fact a legal rule. Hence, the aim of legal interpretation is to provide the meaning of a given text of law (i.e. the content of law). The ‘proper meaning’ of a legal text can be arrived at only if some rules of interpretation are followed. This is a platitude about law stating that the process of interpretation should never be random; instead, there are a number of so-called second-order rules, such as e.g. clara (non) sunt interpretanda (if the text is clear on how the first-order rule should be understood, one should (not) engage in a ‘deep’ interpretation process), that should guide it.
Interpretation serves legal discourse in many ways: its function can be seen as explanatory or heuristic, i.e. providing adequate descriptions of judges’ practices; it can also be seen as justificatory, i.e. providing reasons for judges’ decisions (see Studnicki, Chap. 18). However, the most fundamental aspect of legal interpretation is that it constitutes the content of law. For a judge to say that a certain rule is a valid legal rule, there must exist a rule of interpretation (a second-order rule) that, when applied, points to this first-order rule as what is meant by a legal text. However, to say that law is constituted by the interpretation of a legal text does not automatically entail an interpretivist theory of law in the Dworkinian style.1
The interpretation of law is a multi-layer phenomenon; on the deepest level, however, it must at least provide some theory of linguistic meaning. The starting point of every interpreter of law is always a piece of language that requires some further processing. In the sense in which the output of such processing is constituted by the latter, interpretation must be seen at least minimally constitutive of the content of law. In this chapter, an analogy will be drawn between the interpretation of legal texts and some notions from the contemporary philosophy of language to develop this issue further.
In this chapter, I also aim to show that legal interpretation is a rule-guided process that operates on different types of rules, some of which can be perceived as grounded in some semantic theory and others in a kind of social practice, moral values or political theory. Finally, I would suggest that all levels of interpretation are subject to some version of Kripkenstein’s sceptical problem that questions the intuitively realist picture of law where there exists an answer to the question of law arrived at via correct interpretation.
19.2 Legal Interpretation as a Multi-Level Process
As previously stressed, legal interpretation aims at providing the (correct) meaning of a given legal text. The journey starting with a legal text, a linguistic entity, requires some theory of linguistic meaning in the beginning. Legal discourse is quite different from meaning discourse, and every analogy drawn between them must be well justified. However, I assume (and strongly believe) that this difference is not qualitative and the latter is simply more general than the former (at least in terms of linguistic properties). Legal discourse includes discourse about the meaning of legal texts. What makes a discourse about the meaning of legal texts a part of a legal discourse is that truth-evaluable sentences within the former require truth-makers provided (or suggested) by some legal theory.
If my assumption is acceptable (and it does not seem very controversial), then I may draw some analogies between certain notions present in the contemporary philosophy of language and legal interpretation.
Philosophers of language tend to distinguish different levels of interpretation. Borg (2004, p. 38)2 points to three such levels:
Linguistic decoding, which results in a logical form [according to e.g. Carston (1988), unlike in Borg (2004)—an incomplete one]. This is a purely formal stage, guided by syntactic rules of language. It is debatable whether it provides in the end anything truth-evaluable, any propositional content so that minimal formal semantic theory can be of any use here (as Borg suggests). Nonetheless, interpretation (whether legal or not) requires some semantic theory, part of which describes formal syntactic rules that at some very basic level guide any use of meaningful expressions in any language.
Primary pragmatic inference, the result of which is an explicature (‘what is said’3). According to e.g. Carston (1988) or proponents of dual pragmatics in general, unlike Borg (2004), this is a level that provides us with propositional content to which truth value can be assigned. For Carston (1988), explicature is built on a linguistically determined content as well as anything pragmatically inferred4 that seems necessary to obtain whatever is really said (still, however, not implied). At this level, different types of development of the logical form obtained as a result of level-one processes are allowed: reference assignment, disambiguation, specification of vague terms, the supply of empty grammatical categories with conceptual content, the building of certain relations between events and states, free enrichment, completion, saturation, etc. It must be noted that pragmatic inferences at this level are local. They operate on subparts of a logical form [in an example by Carston and Hall (2011), free enrichment e.g. replaces an encoded concept with an inferred concept or adds material to change the interpretation of some encoded element]. However, all the pragmatic inferences are somehow context-dependent; alas, rules that guide interpretation at this level are very different from those at level one.
Secondary pragmatic inference, which results in an implicature (‘what is implied’), a fully pragmatically enhanced item (Borg 2004, p. 38). It is either ‘the act of meaning, implying, or suggesting one thing by saying something else’ or ‘the object of that act’ (Davis 2013). For Grice, an implicature is arrived at by following the cooperative principle and maxims of quality (‘Say what you believe is true’), quantity (‘Be informative’), relation (‘Be relevant’) and manner (‘Be perspicuous’) (Grice 1975; for more about the issues, see I. Skoczeń’s Chap. 26). Alternatively, Sperber and Wilson (1986) and Carston and Hall (2011), as proponents of relevance theory, in contrast to Grice, claim that implicatures are globally derived speaker-meant contextual implications. They are global because they do not encode a logical form provided by level one but operate on fully propositional content. An example (taken from Carston and Hall 2011, p. 21) is as follows:
X: Does John like cats?
Y: He doesn’t like any animals.
Cats are animals.
John doesn’t like cats.
Dogs are animals.
John doesn’t like dogs.
Sentences 2 and b (so-called ‘implicated conclusions’) are not said but rather communicated by the speaker, and they are not in any way developed from an initial logical form; hence, they must be implicatures (according to relevance theory). Again, different rules of interpretation must be applied at this level to arrive at ‘what is communicated.’
I do not intend to advocate any particular framework (either the Gricean or that of relevance theory), as there are strong arguments that neither of them is adequate to accommodate discourse about the meaning of a legal text fully (see Skoczeń, Chap. 26). However, the general idea that the process of legal interpretation can be divided into at least three stages governed by different types of rules (all of which can be labeled ‘rules of interpretation’) seems a natural implication of my previous assumption that a discourse about the meaning of a legal text is just less general but qualitatively the same as a meaning discourse in general.