© 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_18
18. The Normativity of Rules of Interpretation
Faculty of Law, Jagiellonian University, Kraków, Poland
Rules of interpretation of law have both heuristic and justificatory functions. They are normative in the sense that they deliver justificatory reasons for interpretative decisions. The normativity of these rules cannot be explained by recourse to the concept of convention. Rules of interpretation are based on various (and sometimes conflicting) values of political morality. Rules of interpretation reduce the complexity of the judicial decision-making process by delivering second order reasons for interpretative decisions—the first order reasons being values of political morality that underlie those rules. The reasons supplied by rules of interpretation are not exclusionary, as their application does not exclude the need for recourse to the first order reasons. Such recourse is necessary if particular rules of interpretation remain in conflict with respect to the case to be solved. The question of justifying rules of interpretation is not a semantic question. These rules are not supported by any definite semantic theory, but by political philosophy, justifying the adoption of a certain set of values pertaining to political morality. In this respect, certain differences pertaining to the mode of resolution of conflicts between various rules may be observed between common law and civil law legal cultures.
KeywordsInterpretationLegal cultureNormativityReasonsRules of interpretation
18.1 Is the Interpretation of Law Rule-Guided?
It is a common occurrence that judges present their interpretative decisions as based on rules, canons, maxims or methods of interpretation. For the sake of brevity, I will refer below exclusively to “rules” as a general term covering all designations listed above. In this broad sense of the term, rules of interpretation may have various forms. Some of them are strict rules, providing for a definite outcome (for example: if the same word occurs more than once in the statute, the same meaning should be ascribed to each of those occurrences), but some are rather prudential maxims, the application of which must be based on a judgment (for example: adopted interpretation should not be in conflict with fundamental constitutional values). Others just indicate which factors should be taken into account by the interpreter (for example: take into account the legislative history of the statute). In the discussion that follows, I will not discriminate between these different types of rules. Further, I will deal exclusively with statutory interpretation, leaving aside the interpretation of other legal materials.
The question of whether the interpretation of law is a rule-guided enterprise may pertain to two distinct issues. The first issue is whether the interpreters, while considering the matter of the proper meaning of the text of a statute, actually engage rules of interpretation as a device to help them solve the problem that they face. Thus, the first issue is the role of rules of interpretation in the heuristics of the interpretation of law (in the context of deliberation). The second issue is the role of rules of interpretation in the process of justifying the interpretative decision, or in other words, the question: “What is the role of rules in the process of presenting the reasons for the adopted interpretative decision (in the context of justification)?”
As far as the first issue is concerned, the answer can only be based on empirical research. In the absence of such research, it is impossible to say whether rules of interpretation are actually applied by interpreters for the purpose of finding the right solution to interpretative problems that they face, or whether, as maintained by legal realists, such a solution is selected by intuition, “hunch” or moral beliefs, and the exclusive role of the rules is to justify the solution so identified. It is possible that no uniform answer to this question can be given—some interpreters take rules of interpretation seriously, as devices to help them find the right solution, and others rely on their own intuition and make use of the rules only for the purpose of rationalizing the outcome of their morally-driven or intuitive interpretation. Alternatively, it may be argued that the distinction between the context of deliberation and the context of justification is not sound with respect to legal interpretation, or at least not clear-cut, and therefore, the solutions of both issues should run congruently.
For the purpose of this paper, I assume that rules of interpretation have both a guiding and a justificatory role, but I will be interested exclusively in the latter role. An obvious feature of the judicial decision-making process is that a judge must present his or her decision based on, and driven by, the law. If the text of a statute is ambiguous or if there is a basis for departing from the plain meaning of the statute, the judge is bound to give reasons for his or her interpretative decision. But even if the language of a statute is clear and does not give rise to any doubts, the tacit reason for the decision based on such plain meaning is provided by the rule prescribing that the judge is bound by the wording of the statute. The question of whether such reasons reflect the actual psychological motives behind the judge’s decision is impossible to answer, due to the fact that there is no practical means to check what the actual motives are. While discussing the interpretation adopted by the judge (for instance, in the context of an appeal against his or her decision), we only have access to the reasons which have been explicitly revealed by the judge (or we may attempt to reconstruct reasons implicitly assumed), as we are not able to gain access to his or her actual psychological motives. On the other hand, we have no basis to assume that the actual motives always, or even usually, dramatically depart from the reasons given for justification. Thus, rules of interpretation probably play a certain role as devices that provide motivating reasons1.
I assume, therefore, that the principal function of rules of interpretation in legal practice is to give justificatory reasons supporting interpretative decisions. Below, I will discuss this role exclusively. Rules of interpretation are normative in the sense that they supply such reasons.
18.2 Rules of Interpretation Supply Justificatory Reasons
In order to be able to supply a justificatory reason, a rule must jointly satisfy three requirements (Brożek 2012, p. 10):
it must be objective,
it must be applied in a conscious way (at least potentially), and
any departure from the pattern established by such a rule must be (at least potentially) subject to critique.
Let us check whether those requirements are satisfied by rules of statutory interpretation. As far as the requirement of objectivity is concerned, it is plausible to argue that objectivity as mind-independence is what is meant here. Let me borrow from M. Kramer the distinction between strong and weak mind-independence (Kramer 2007). Strong mind-independence is the mind-independence tout-court. It means that the existence of the thing in question does not depend on anyone’s thoughts or beliefs. The Earth’s moon is mind-independent in this sense, as it would exist even if nobody were aware of its existence. Obviously, rules of interpretation are not mind-independent in the strong sense, as they would not exist in absence of the thoughts and beliefs of the members of a particular legal culture. Weak mind-independence means that the existence of the thing in question does not depend on the thoughts, beliefs or attitudes of any particular individual, but depends on collective attitudes or beliefs which individuals share in their interactions. Rules of interpretation are mind-independent in the weak sense, since their existence depends upon collective beliefs shared by a community of judges, lawyers and other state officers in a given legal culture. This does not mean that all rules of interpretation must be uncontroversial within a legal culture. To the contrary, certain rules and/or the mode of their application are a matter of dispute (I will revert to this problem below). This means only that rules of interpretation, in order to perform their justificatory function, cannot be private rules invented by a particular interpreter. They must be generally shared by the community of interpreters (or at least by a substantial part of such a community), which does not mean that each individual interpreter must accept (or even be aware of) each of these rules. An interpretative decision would not be deemed sufficiently justified if it were solely based on private rules adopted by a given interpreter. Such private rules would not be considered as giving justificatory reasons since they lack objectivity (weak mind-independence).
It also appears that the second requirement is satisfied as well. Rules of interpretation are applied in a conscious way. This does not mean that they are always explicitly worded, since usually, in easy cases, they are only tacitly assumed. It is, however, a fact of legal interpretation practice that interpreters, when asked for justification of their interpretative decision, are usually prepared to refer to the rules that they have consciously applied or at least tacitly assumed. If they fail to indicate such rules, their interpretative decisions are deemed to be unjustified. The same applies to the third requirement. In legal disputes relating to interpretation or application of the law, rules of interpretation are frequently evoked as the basis of a critique of the interpretation adopted by an opponent. An interpretative decision is claimed to be wrong if it has been made in breach of certain rules of interpretation, unless other rules sufficiently support such a decision. Departure from a generally accepted rule requires justification.
Therefore, rules of interpretation are normative in the sense that they supply justificatory reasons for actions (interpretative decisions). My claim that rules of interpretation supply justificatory reasons for actions (interpretative decisions) is a descriptive, and not a normative, claim. I do not want to say that rules of interpretation always give good or sufficient reasons for interpretative decisions. My only claim is that rules of interpretation are utilized in the practice of interpretation to provide justificatory reasons. The question of whether any particular reasons are good or sufficient is to be answered by a normative theory of interpretation. For the purpose of this paper, I do not assume any normative theory of statutory interpretation.
Further, for the purpose of this paper, it is not necessary to answer the question of whether rules of interpretation are normative in a weak or strong sense. This may depend upon specific features of a given legal culture and on specific features of particular rules. In some legal cultures, certain rules of interpretation may be normative in a strong sense (for example, when the rules of interpretation are explicitly formulated in a statute2). In other cultures, most of the rules of interpretation are just prudential rules, canons or maxims with a weak normative force, which may be overweighed by an opposite rule. Another interesting question is what kinds of reasons are delivered by rules of interpretation, and in particular, whether they deliver epistemic, triggering or robust reasons (Enoch 2011). For the sake of brevity, I will leave this question unanswered.
One more thing needs to be explained to avoid misunderstanding. Rules of interpretation as such do not constitute justificatory reasons, but only define what facts or circumstances count as justificatory reasons. To give a simple example: if an interpreter adopts the rule that the actual intention of the lawgiver should be taken into account in the interpretation of a statute, the reason for a definite interpretative decision is the fact that the lawgiver has had a certain intention. In order to justify the decision, it is not sufficient to refer to that rule, but the actual intention (as a certain fact) must be demonstrated. Such a fact, however, constitutes a justificatory reason only due to the existence of the rule. In the absence of the respective rule, the actual intention of the lawgiver would not constitute a justificatory reason.
18.3 Are Rules of Interpretation Conventional?
Where does the normative force of rules of interpretation come from and how can it be justified? This question appears to be important, as justification is a necessary component of normativity (Bertea 2009, p. 25).