Retracing One’s Steps: Searching for the Ethics of Legal Interpretation
The article discusses the problem of interpretation in law. Are there some criteria by which we can distinguish a good interpretation from a bad one, interpretation from over-interpretation? It is argued in this article that there is always a choice in defining the meaning of a text and this choice can be seen as an ethical one. This article thus studies the question of limits of interpretation by focusing on the ethical elements of interpretation. It is argued here that legal interpretation contains a requirement of justice that shapes the responsibility that the interpreter carries for his choices of meaning. Therefore the ethical elements of interpretation are especially pressing in the interpretation of legal texts.
Because I still like him, I can foresee the impatience of the bad reader: this is the way I name or accuse the fearful reader, the reader in a hurry to be determined, decided upon deciding (in order to annul, in other words to bring back to oneself, one has to wish to know in advance what to expect (oneself)). Now, it is bad, and I know no other definition of the bad, it is bad to predestine one’s reading, it is always bad to foretell. It is bad, reader, no longer to like retracing one’s steps [1, p. 4].
We have to interpret legal texts, in order for us to know what the law says, what it demands of us, how we can follow it and how we can judge whether somebody has followed it. How is this done? How do we determine what the texts mean? There have to be some ways of limiting our interpretation of the texts, after all, the law cannot say whatever we want it to say in a given situation. The central problem discussed in this article is the question of the limits, or rather boundaries of interpretation. Are there some criteria by which we can distinguish a good interpretation from a bad one, interpretation from over-interpretation?
This article discusses the role of the text and its reader in legal interpretation. The opening quotation from Jacques Derrida’s The Postcard is an apt introduction to this problem. The reader (or interpreter) can be good or bad, and is responsible for his reading. But what is a responsible interpretation? It is argued in this article that there is always an ethical element in interpretation, a choice or a decision that has to be made. Herein lies the responsibility of the interpreter. This responsibility is perhaps magnified in the field of law, where the interpretational choices have significant consequences in people’s lives.
There are different interpretive routes through the network of legal texts. The starting point of this article is that the route that follows semantics, is a bad one, or rather, it is illusory to expect this route to lead anywhere. Language alone does not constitute a route; neither can it be a means of justifying the interpretations we choose to make. Since there are no fixed or definite meanings in language, the meaning of a text cannot be anchored only in the meanings of words. Therefore, an interpretative choice cannot be justified by mere wording or semantic meaning of the legal text. And in the field of law, justifications for interpretations have to be given. Thus, the means of justifying interpretations has to be found somewhere outside semantics.
This article ponders the question of limits of interpretation by focusing on the ethical elements of interpretation. If there is always a choice in defining the meaning of a text, then this choice can be seen as an ethical choice. Ethics could perhaps function as a way of conceptualizing how a meaning is ascribed to a text by a reader or an interpreter. With these background assumptions in mind, this article approaches some well known theories of interpretation and looks for ways to chart some ethical underpinnings and structures that could function as means of thinking about the limits of interpretation.
No meaning is the first, the last or the correct one. Legal interpretation is a process without end. It’s a labyrinth in which we move with no guarantees that we have chosen the right path. There are no guarantees. The idea in this article is that because there are no guarantees, we have all the more reason to produce good interpretations, and the criteria for good interpretations are fundamentally ethical.
Ethics of Reading
All these models belong to the problematic of inside outside polarities, open to a variety of crossings, displacements, and substitutions, as inside becomes outside, outside inside, or as features on either side cross over the wall, membrane, or partition dividing the sides [21, p. 7].
Far from being “indeterminate” or “nihilistic”, however, or a matter of wanton free play or arbitrary choice, each reading is, strictly speaking, ethical, in the sense that it has to take place, by an implacable necessity, as the response to a categorical demand, and in the sense that the reader must take responsibility for it and its consequences in the personal, social, and political worlds [21, p. 59].
The ethics of reading has a twofold character: firstly, there is an ‘I must’ inscribed in every act of reading, secondly, every act of reading takes place in a time and a situation and the reader has to take responsibility for its consequences. There is thus an ethical challenge in the reading itself, but the reading is also an act that can be evaluated ethically in a broader context.
Miller’s ideas underline that there is an ethical responsibility not only in our everyday actions, but also in the way we read and write [see also 6]. This is especially important to notice in the legal field. The law consists mostly of reading and writing, of different interpretation situations. If an ethical responsibility, which includes the requirement of justice, is seen as inherent to law, it seems that this responsibility should be directed to the core of how law is done, that is, to the legal decision-making process including legislation, interpretation and application of the law. The legal interpreter has a twofold task when interpreting the legal text. His ethical responsibility is double. He has a responsibility towards the text he is interpreting, but also towards the particular case which he is deciding. He has to respond to the ethical demand that the text makes, and at the same time to the ethical demand of the interpretation act itself with its consequences.
Complexities of Meaning
When a legal text is interpreted and applied in a case, the meaning of the text is neither fully present, nor exhausted in the situation. According to Derrida, in any interpretation we only grasp an element of meaning, nothing complete [see e.g. 3]. A legal text, as any other text, can always have something hidden. There is indeterminacy, something undecidable, involved in all acts of interpretation [see 2, 7, 10]. It is always a jump to go from text to meaning. A text does not dictate its own meaning.
The gap between the text and its meaning is filled by an interpreter. It is essential that we acknowledge that it is always somebody who interprets. To arrest the play of signification is to make an arrest, it is an act that is done and that has to be done. We can see this act as being ultimately strategic or political. Derrida’s view is something close to this one. For him, there is always force, even violence, in interpretation. As the word arrest hints, it is a question of an interruption, by force. With the need to make a decision the interpreter is always inside a structure of politics [4, see also 18, 23]. Derrida even uses the term “interpretative force” . A similar view is sometimes held in legal theory as well.
It is agued in this article that the gap between a text and meaning is also a question of ethics. Language is always also ethical. This is a view inspired by Levinasian ethics, a view which Derrida does not fully accept. According to Emmanuel Levinas, the essence of language is friendship and hospitality . That is, the fact that something is said or communicated, presupposes a hospitable attitude towards another person. The willingness to listen, the willingness to even start interpreting presupposes a benevolent or benign attitude towards a speaker or writer. There can be no understanding without a welcome, that is, without a willingness to try to understand what a speaker or a text wants to say.
What could an ethics of legal interpretation more specifically entail? An ethics of reading law could perhaps be a call to respect the otherness of the text; to respect it hiding something. We could say in a Levinas-inspired sense that the interpreter should not try to possess the text, to own it or completely take hold of it. Rather, we should, as for instance Hans-Georg Gadamer stresses, listen to what the text wants to say and stay open to the uniqueness of the text. In the following, this article studies more closely what Gadamer’s hermeneutics can offer an account of interpretation that is based on ethics.
Hermeneutics—Being Open to the Text
How does hermeneutics fit together with the idea of ethical limits of interpretation? Can a demand for the responsibility of interpretation be found already in Gadamer’s theory and what could this way of reading Gadamer give to an understanding of legal interpretation? Hermeneutics sees understanding and interpretation as intertwined activities. Their structure is circular. All understanding depends on some previous understanding. The interpretation of a text takes place in this circular movement. A person who wants to understand a text constructs a meaning for the whole text for himself as soon as he is able to grasp any meaning in it. His anticipation of the text as a structured whole meaning something, saying something understandable, is the attitude he has at the beginning of the interpretation process. This anticipation of meaning constitutes stepping into the hermeneutic circle.
There is in hermeneutics a focus on the interpreter, whose attitude and the way he approaches the text are significant factors in the interpretation process. The interpreter is only able to understand a meaning in a text because he has some presuppositions about what the text means. But this anticipation is only the step into the circle. Once inside the process, the prejudices that the interpreter has are replaced by new ones as the interpretation evolves. Thus interpretation is an activity, in which new meanings are projected continuously until the overall meaning is decided upon. Interpretation begins with presuppositions that are replaced during the interpretation process by more appropriate ones. An interpreter is always inside a horizon consisting of his presuppositions.
The hermeneutic view of interpretation stresses the relationship between the parts and the whole. We can understand the whole only through understanding its parts, but the whole also determines the meaning of the parts. The two-way movement from parts to whole to parts is the basic structure of interpretation, and the task of the interpreter is to create a meaning for the whole. The harmony of the parts and the whole is one criterion for correct understanding. If this harmony is not achieved, understanding has not been successful.
It is not, then, at all a case of safeguarding ourselves against the tradition that speaks out of the text but, on the contrary, to keep everything away that could hinder us in understanding it in terms of the thing. It is the tyranny of hidden prejudices that makes us deaf to the language that speaks to us in tradition [11, p. 239].
Tradition and prejudice are elements in the interpretation of a text, but they do not absolve our responsibility for the interpretation. Prejudices are there to be replaced by new and more appropriate ones as the interpretation of a text evolves. Moreover, the tradition in which the text is seen to belong does not determine the interpretation of the text; at most it pushes the interpretation in a particular direction. When we interpret a text we have to be both prejudiced and open to its meaning. We have to assume that the text wants to tell us something. Our presuppositions should not be static so that we hold on to an anticipated meaning even where the text wants to tell us something else. At the core of hermeneutics is the requirement of sensitivity to the text’s newness. What is important is that the interpreter has a basic level of self-knowledge that enables him to understand and acknowledge his presuppositions, so that the text can show its own truth against them [11, p. 238]. Thus hermeneutics searches for the text’s truth, its own new and singular meaning.
Interpretation as Dialogue
According to Gadamer, all understanding, including interpretation of a text, should be seen as a conversation or dialogue, so it becomes evident that one crucial precondition for it is to listen to the other (be it a text or another person), and be open to what the other wants to say [11, p. 238, see also 24]. “[L]anguage is conversation. One must look for the word that can reach another person. And it is possible for one to find it/…/” [12, p. 106]. It seems that what is essential in language is that it is conversation, an activity of sharing and being with somebody. Every time there is language, whether a text, a word, a whisper, there is conversation [13, p. 95]. Being open to the text, which is a prerequisite for understanding, is like engaging in a conversation with it. Thus the only way for an interpreter to understand the text is to listen to it and try to grasp what it wants to say. This dialogical structure is for Gadamer that which makes the hermeneutic experience universal. Language is conversation always and everywhere: “The word is what one person speaks and another understands” [13, p. 95]. This universality entails that language, meaning and interpretation are grounded in dialogue and inter-human understanding, which establishes a foundation for hermeneutics at a profound level [15, p. 35]. Hermeneutics is a general basis for all understanding as well as a background against which a variety of scholarly disciplines can be built.
A successful interpretation happens through the fusion of the horizons of the interpreter and the text. In a conversation, it is necessary that the horizons of the participants merge in order for an understanding to be possible between them [see 14, p. 119]. Likewise in interpretation, the horizon of the interpreter has to merge with that of the text in order for the interpretation to be successful. There is a risk in this scenario that the interpretation may thus turn into a totalizing activity in which the horizon of the interpreter, his prejudices and his tradition, come to dominate the horizon of the text, losing the otherness of the text in the hegemony of the interpreter. This is Levinasian critique of hermeneutics, to which Gadamer responds by underlining openness to the meaning of the other as a prerequisite for understanding. “One must seek to understand the other, and that means that one has to believe that one could be in the wrong” [14, p. 119].
The idea of dialogue also concerns our relationship with what Gadamer calls tradition. A dialogue takes place within a tradition and is itself part of a tradition, but there is also dialogue with the tradition. As was stated above, the tradition and the prejudices and presuppositions we have on entering a dialogue with the text are replaced by new ones during the interpretation of the text, that is, in conversation with it. We therefore enter into a dialogue with the tradition as well: it is by no means a fixed entity, something predetermined, or a straightjacket restricting our interpretation, but should rather be seen as a flexible background in which and through which interpretation takes place. Tradition is not something given nor something clearly distinguishable. In fact, it is not clear how to separate a text and its tradition. All texts belong to some tradition, and a tradition is nothing other than the collection of texts: ““tradition” is simply the collective name for each individual text (text in the widest sense, which would include a picture, an architectural work, even a natural event)” [12, p. 11].
What is pushed aside or dislocated when my word reaches another person, and especially when a text reaches its reader, can never be fixed in a rigid identity. Where understanding takes place, there is not just an identity. Rather, to understand means that one is capable of stepping into the place of the other in order to say what one has there understood and what one has to say in response [13, p. 96].
To understand what the other says is to be able to relate to him and step into his place and to be able to respond to him.
Language is such that, whatever particular meaning a word may possess, words do not have a single unchanging meaning; rather, they possess a fluctuating range of meaning, and precisely this fluctuation constitutes the peculiar risk of speaking. Only in the process of speaking, as we speak further, as we build up the fabric of a linguistic context, do we come to fix the meanings in the moments of meaning of our speaking. Only in this way do we mutually agree on what we mean [16, p. 25].
There is no final meaning for a text, nor is there an ordinary meaning: “/…/the conversation that we are is one that never ends. No word is the last word, just as there is no first word. Every word is itself always an answer and gives rise always to a new question” [13, p. 95]. For Gadamer, the essence of understanding is to be responsive to “what aims at being said beyond all words sought after or found” [14, p. 118].
On the Ethics of Hermeneutics
What about the bad reader, then? If prejudices are necessary for understanding a text, how do we draw the line between acceptable interpretation and the activity of the “bad” reader? The bad reader is a fearful reader, a reader in a hurry or one who does not like retracing his steps. We may even call him violent if he uses a kind of power against the text, a stubbornness of projection, in which he reads the text his own way. He is, in short, disrespectful of the text. What about the interpreter following the hermeneutic view, is he respectful enough? Can Gadamer’s views be criticized on account of him not recognising the threat of the bad reader? Perhaps not, as we should not think of prejudices simply as conditions of understanding that somehow determine the outcome of the interpretation process. Rather, Gadamer thinks that interpretation is always subject to revision when we encounter new evidence or information [see 17, p. 44]. We do have anticipations of the meaning of a text when we start reading and interpreting it, but they are, and should be, shattered in the process of interpreting the text. This may be exactly what “retracing one’s steps” means. Ultimately, what is necessary in understanding according to Gadamer’s hermeneutics is openness to something new, something other, and a readiness to replace one’s prejudices with new ones . The interpretation process creates something that is new and unique every time . In Gadamer’s view, the interpreter learns something every time he interprets the text, just as the participants in a conversation can never know in advance where the conversation is taking them, or control it or direct it towards a predetermined meaning.
Gadamer’s view on hermeneutics does not include a search for the original meaning of a text seen as an author’s “original intention”. The text, be it a spoken utterance or a written statement, takes on an independent life after it leaves the author. The text and its meaning are no longer dependent on the author’s intentions, which is not to say that the author’s intentions are wholly irrelevant. Gadamer considers the case of a work of art. A work of art, unlike an object or handicraft, is not made for a designated use. It is in a strange way suspended from use as well as from misuse. It stands for itself and in itself. The intention of the artist has somehow gone into the work of art and can no longer be determined separately from it, nor found behind it or before it. Works of art are detached from their origins and begin to speak independently. When it comes to poetry or literature, Gadamer thinks that no word or sentence refers directly back to the intention of the author. Things are rather the other way around: every reader is subjected to the command of the text. The work in itself has something to say to us [14, p. 123]. Thus the work of art has autonomy in leaving the sphere of influence of its author.
The work of art demands a response. It is a kind of a sovereign that gives us orders. We see this in Gadamer’s insistence on us being open to the text and its unique meaning. From here it is a short leap, almost not a step at all, to the demand of a responsible interpretation. Openness is not restricted to mere neutrality, but demands a more active stance in the interpreter. The sovereign authority of the work of art is also a call for responsible answers and dialogue [see also 5]. The interpreter has a responsibility before the work, a responsibility which he cannot avoid.
This article claims that we can read Gadamer’s hermeneutics as founding meaning and interpretation on something thoroughly ethical. What is at the core of this theory is a willingness to understand, to listen to what somebody wants to say. To understand what the other says is to be able to respond to him. Thus we can see Gadamer’s ideas being in one sense closer to a Levinasian view than it would perhaps seem at first sight. Also in hermeneutics, language is communication and being together, and interpretation necessarily involves a welcoming of the other: the text or another person.
How, then, does this way of thinking provide any way of limiting interpretation? After all, hermeneutics does not offer us a clear method of interpreting, it does not give us any rules or clear procedures about how to interpret. It is, however, not even the aim of an ethical view of interpretation to be able to develop clear rules. This should not be seen as a lack. Firstly, it would be unwise to suggest that the only way to draw up some boundaries or limits for interpretation would be by defining a method including rules, which the interpreter, for instance a judge, would be obliged to follow. How a rule is followed is not something self-evident and, as can be seen from the ongoing debate on Wittgenstein’s ideas on rule-following, the power of rules to draw clear limits for an activity is questionable. This approach is therefore not what an ethical view on interpretation is after. But an ethical view does still search for ways of limiting interpretation; it just does not believe that these limits can be found in constructing methodological rules.
Seeing the interpreter as an active agent with a responsibility, instead of somebody who can hide behind the meanings of words,1 for instance, is a central idea in the approach of this article, that is, the approach that bases interpretation on ethics. This means that we can assess an interpretative choice that has been made, and we can have criteria for interpretation, but these are ethical ones. It is natural that these concern the judge who has to be fair and impartial and guided by the idea of justice. When the parties interpret, the situation is somewhat different. Their way of interpretation has understandably a more self-interested character. In the following this article studies the ideas of interpretation and over-interpretation developed by Umberto Eco in order to ponder in more detail how an ethically oriented theory on the limits of interpretation could work.
The Intention of a Text Limiting Interpretation
In the legal field, the question of how to limit interpretation is a pressing one. Interpretation is not something that is totally free or indeterminate, but it is not completely determined either. A text can be given many meanings, but should not be given just any meaning. There has to be something that limits interpretation, at the same time as a text always allows for multiple meanings. The theory of interpretation offered by Eco is an interesting attempt to solve some central questions concerning interpretation, particularly the limits of interpretation. We find in his thinking some similarities to that of Gadamer, although there are some differences as well. Eco thinks that a text cannot perhaps have one correct interpretation, but that not all interpretations are equally good. There are better and worse interpretations of a text. The problem is how do we tell them apart?
The Text’s Rights
Eco thinks that the text and its particular characteristics set the limits for a successful interpretation. It is, however, very hard to find an answer from him on what these characteristics are exactly and how they set the demarcation between an acceptable and an unacceptable interpretation. In Interpretation and Overinterpretation he distinguishes between the text’s rights and the interpreter’s rights, remarking that in recent discussions the interpreter has been given too powerful a role [9, p. 23]. Eco seems to claim that in interpretation, which is influenced both by the object of interpretation, i.e., the text, and by an actor, i.e., the interpreter, the text should be given the central position that belongs to it. The interpreter is never totally free in his actions; the text delimits him. Eco distinguishes between (1) the intention of the author of the text, (2) the intention of the text, and (3) the intention of the interpreter. The intention that should be in focus is, Eco claims, that of the text. A good interpretation concentrates on finding the intention of the text [9, pp. 24–25].
What, then, is the intention of the text, which Eco finds so crucial for distinguishing a good interpretation from a bad one? It cannot be found on the mere surface of the text. To grasp it, conscious and focused effort is needed. Thus it is also dependent on the interpreter’s choices and intentions. The intention of the text is to create a model reader who can make assumptions about the meaning of the text. To find out what a text’s intention is to recognize a certain semiotic strategy which can sometimes be deduced from some stylistic features of the text. If the text begins with “once upon a time”, we can assume that the model reader is a child [9, pp. 64–65]. Eco has talked in his earlier work about the importance of finding the right frequency of interpretation, the right code. Relevant factors are the historical situation and the interpreter’s characteristics, such as education and upbringing. A lawyer is trained to interpret legal texts, finding different meanings in them from a layman. However, this analysis of the model reader does not take us very far. To find out what class or type the text belongs to is no doubt important, but it is seldom the problem. A legal text, for instance, a legal or a court decision, is quite easy to recognize, but to find out what the text says, what it stipulates or what it allows, is another matter. The schooling of a lawyer does not necessarily restrict or determine the interpretation that he makes. All texts, including legal ones, involve some indeterminacy. There is always room for interpretation in a particular category of texts. Lawyers and literature researchers alike are seldom unanimous regarding the correct interpretation of a text, regardless of their education and training. Eco draws our attention to the decoding of texts, which does not, however, touch on the difficult problems of interpretation. According to Gadamer, “It is certainly correct that a certain decoding process underlies all writing and reading of texts, but this represents merely a precondition for hermeneutic attention to what is said in the words” [12, p. 112].
According to Eco, the way to examine what the intention of a text is to study the text as a coherent whole. The internal coherence of the text, its own internal structure, controls an otherwise uncontrollable reader [9, p. 65]. Interpretations of different parts of the text have to fit together. However, this still leaves many things open. There can surely be examples of coherent interpretations of texts that we still could not consider good interpretations. A functioning interpretation rests on the features of the text, on which a coherent whole can be built, but this means that some other features are deemed secondary or irrelevant at the same time [9, pp. 144–146]. The interpreter thus has a great responsibility and power concerning the meaning of a text.
Although Eco focuses on the text and its intentions, he does pay attention to the interpreter as well. The interpreter has to be competent. He has to have sufficient knowledge of the encyclopaedia, or at least parts of it as knowledge of the entire encyclopaedia seems impossible. Every interpreting situation is a difficult encounter, in which the competence of the interpreter and the competence that the text requires stand face to face.
Interpretation Versus Use
Eco distinguishes between the interpretation and use of a text. A text can be used for many things: it can be parodied, used as inspiration, or as sleeping medicine. But interpretation of a text means that its cultural and linguistic background is respected [9, p. 69]. Eco seems to partially identify false interpretation of a text and use of a text. To use a text is to exploit it for personal, political or ideological reasons. Interpretation, on the other hand, respects the text itself. In a way, Eco pinpoints this respect for the semantic meaning of the utterances that the text consists of. When a text is used, its semantic meanings are not respected, the interpreter is reading it as he wants. However, Eco admits that that there is always an element of use in interpretation, and these two ways of encountering a text cannot always be clearly separated [see 8, pp. 57–58, 62]. A reader often uses and interprets a text at the same reading.
Even if we cannot clearly say where interpretation stops and use begins, use is the type of reading that is freer in Eco’s theory. Interpretation can be good or bad, and ultimately it is society’s opinion and other interpretations that determine whether it is good or bad, but the use of a text is in a way revolutionary. By using texts we can break free from earlier and approved interpretations and come to a new understanding of the text . To use a text is thus a means for the interpreter to free himself of the conformity of interpretation, and cannot be seen simply as something negative directed against the intention of the text. It is an activity that distances itself from the thing itself, however. In using texts, we do not first try to establish what the text wants to say and it is not the intention of the text that directs the reading. Using a text is imposing the reader’s intentions on it, but it is difficult to maintain a clear-cut view that an encounter with a text is at best interpretation and at worst use. From the viewpoint of the text though, when we acknowledge the integrity of the text and hold the intention of the text very high, the use of it is less respectful than interpretation.
Eco sees a good interpretation as one that the consensus of the community would accept. His argument is based on the Peircean notion of habit in that the convention of the community is something similar to an ultimate criterion for a successful interpretation. Interpretation has an inter-subjective character, which gives it a degree of objectivity [see 22, p. 336]. Here Eco sees a similarity between his own views and Gadamer’s ideas on tradition [9, p. 144]. However, Eco leaves room for new and ground-breaking interpretations in saying that a good interpretation can be built on preceding ones accepted in the community and at the same time form a new way of interpreting. A good interpretation can be new and different, but only time will tell whether it is a good one. The question that arises then is what help we have from Eco’s theory in the interpretation situation when we try to achieve a good or just interpretation.
In spite of the obvious differences in degrees of certainty and uncertainty, every picture of the world (be it a scientific law or a novel) is a book in its own right, open to further interpretation. But certain interpretations can be recognized as unsuccessful because they are like a mule, that is, they are unable to produce new interpretations or cannot be confronted with the traditions of the previous interpretations [9, p. 150].
Respecting the Legal Text
There are many features that make legal interpretation special and set it apart from other cases of interpreting texts. The most important is perhaps the demand for justice that is built into all legal activities. Seen in a Gadamerian way as a situational and practical activity, legal interpretation cannot be indifferent to the aims and values inherent in law. The demand for justice has to be taken into consideration in legal interpretation. The situation at hand, the case that has to be decided, and the demand for justice, shape legal interpretation.
A central feature in Gadamer’s theory of interpretation is that he sees interpretation, understanding and application as a mixed activity. They amount to more or less the same thing. The practicality of interpretation is fundamental in legal interpretation, where it is particularly hard to distinguish where interpretation ends and application begins. One of the central ideas in a hermeneutic view of law is that we always interpret legal texts in some practical situation. Interpretation and application of law are intertwined in that we always interpret the normative content of law from the point of view of a certain case. Interpretation thus has the goal of finding an answer to the situation at hand.
Legal interpretation is a process of understanding that includes prejudices and background information. This information is shared by the legal community, being the legal tradition that lawyers are educated in. This tradition is relevant in our interpretation choices, but by no means determines in an unambiguous way which interpretation is a good one and which is not. After all, lawyers who share a legal tradition and have very similar background information nevertheless often disagree on what the meaning of a legal text is.
It seems that when we try to transfer Eco’s thinking to the field of legal interpretation, we encounter some problems. It is clear that he does not have in mind an activity, in which the text interpreted has a normative character as it has in legal interpretation. There is a difference between legal and, say, literary interpretation in precisely the normativity of text and the aims of interpretation. Legal interpretation usually includes both interpretation and use. It is never neutral, but surely not wholly determined by politics or some kind of power either. When legal texts are interpreted, they are often used at the same time, because the activity of interpretation has very practical aims in law. Could the ideal of interpreting rather than using texts be of value in law? The idea of interpretation as a respectful activity in contrast with (ab)use has a nice ring to it and could be combined with Gadamerian ideas of openness to the text. It seems that when seeking the meaning of the text, we should perhaps approach it with the respect that Eco has in mind, not with the agenda of making the most of the text for our own purposes. Why? Because this may be the only way for us to be able to say what a text means, what it wants to say. And in legal interpretation we want to know what a text means. Not definitely and for all eternity, but with relevance to this case and this practical situation.
Law constitutes a peculiar sign system in that more often than not new and ground-breaking interpretations are very fruitful. In addition to the fact that interpretation as use for different purposes is accepted, and even required behaviour of many lawyers, these interpretations, which often represent a border-line between accepted and not accepted, are what develop law. This makes law a flexible system keeping up with the developments surrounding it. It also makes it possible for law to stretch, so that it covers all sorts of particular situations, that is, the multitude of peoples’ lives. Law is a dynamic system, and evolves in the practice of interpretation. There has to be room for over- and under-interpretation, in order for law to change and develop. Still, there should to be some limit on interpretation for many reasons, not least for the underlying principles that law should respect, i.e., justice or legal certainty. Legal interpretation has to be both free and restricted.
Legal actors often bend the meaning of legal texts to their own advantage. However, disinterested interpretation is also needed, and we can by no means assume that interpretation in the legal field is only (ab)use. Firstly, in every interpretation or understanding there has to be a neutral element, something that is not totally determined by the egoistic choices of the interpreter, otherwise it would be hard to see how sharing meanings, that is communication, would be possible at all. In the legal field, the situations where law is read with the parties’ own interest in sight, there is also a common ground, a common legal language and way of speaking within which the legal interpretation usually moves in order for it to be successful at all. Secondly, the idea of respectful interpretation, where the intention of the text itself is respected, distinguished from mere use, is an interesting way of solving the problem of how to decide on a good interpretation when there are different conflicting interpretations. Here Eco’s theory could be helpful. The intention of the text should reign supreme over the intentions of the different readers-users of the text. It is the task of the trained legal interpreter, the judge, to hear what the text itself commands.
To respect the text and its intention could be a way of practising a just way of interpreting. According to Neil MacCormick, since there is a necessary pretension to justice built into the work of legal institutions, the demand for justice is inherent in all legal interpretation and radiates to the level of meanings of texts. He says: “The task of judges and courts is not only to apply rules issued by the legislature but, more generally, ‘to do justice according to law’” [20, p. 276]. The demand for justice shapes the meaning of law, that is, what is seen as being in accordance with the law and what is not. If the demand for justice is intrinsic to law, then it includes legal interpretation, and contributes to the meaning of legal texts. This has to do with the ethical responsibility for the consequences that an interpretation of law has in the legal field and for the parties involved. There is always an ethical element in reading, and this is especially important in law.
A way to limit interpretation and safe-guard ourselves from arbitrary and choices of interpreters is by focusing on the text itself and its intention. But, and here I return to Gadamer and to Derrida’s idea of the bad reader, here the task of the interpreter becomes very important. If we want to distinguish between the three factors of interpretation, that is, the producer of the text, the interpreter of the text, and the text itself, then focusing on the text itself and its intention by way of respecting it amounts actually to focusing on the interpreter and his responsibility. The text itself is at the centre of an ethics of interpretation. The only way to achieve a good or just interpretation is when the interpreter approaches the text in a particular way. The respect and competence of the interpreter are key issues. The intention of the text only gets the importance it deserves if we pay attention to the choices of the interpreter, who has to face the text with a particular attitude and skills.
Conclusions: Interpretation Doing Justice
The task of the interpreter of legal texts includes the twofold responsibility of Miller’s ethical reader. There is an ‘I must’ inscribed in the act of reading itself. This ‘I must’ has in this article been illustrated by the requirement that the interpreter stays open to the meaning of the text, listens to what the text wants to say and respects the intention of the text. Respecting the legal text requires that we let the text speak for itself and let the text dictate the means of its interpretation. If we would approach it with a set of predetermined rules or a strict “method” of interpretation, then we would not be as attentive to what the law wants to say as we could be. Thus the ‘I must’ turns into a principle according to which no interpretation can be correct, proper or right, if it is not also respectful and ethical at the same time.
However, every act of reading takes place in a time and a situation and the reader has to take responsibility for its consequences. There is an ethical challenge not only in the reading itself, but also in a broader context. The twofold responsibility of the interpreter means that he has a responsibility towards the text he is interpreting, but also towards the particular case which he is deciding. He has to respond to the ethical demand of the interpretation act with its consequences. This is especially significant in the legal field, as there are important consequences for the parties involved. However, it can be argued that the two elements of the ethical responsibility of the interpreter cannot be distinguished completely, but that they come together in the interpretation situation. In the field of law, this situation is penetrated by the demand for justice and the two ethical elements of reading law are aspects of the call for every interpretation decision to be just.
The ethical element in interpretation can be seen in Gadamer’s theory in the way he underlines the importance of the dialogical structure of interpretation, where it is essential to be open to the meaning of the text. It can also be seen in Eco’s theory, when he emphasises the rights of the text. It can be seen in Derrida when he warns us not to be bad readers. “Bad” has a nice ambiguity to it, because it can mean “deficient”, “defective”, “false”, “incompetent” as well as more morally laden assessments such as “malicious”, “negligent”, and even “evil”. In a similar way, it has been argued in this article that the criteria for a correct, useful or good interpretation cannot be separated from ethical criteria. The correctness and the ethical goodness of interpretation come together.
A crucial argument in this article has been that what happens when a text is interpreted and a meaning is given to it is not only something political, but also ethical. If it is true that every interpretation is a choice that has to be made by somebody somewhere at some point of time, then with this choice comes responsibility. From the fact that there is a choice, it does not necessarily, nor exclusively, follow that we are stuck in a structure of politics. It can be a structure of ethics just as well. Ultimately, we choose meanings, and these choices are acts that can be god or bad in an ethical sense. This way the correctness and incorrectness of interpretation boils down to goodness and badness, to ethical criteria. Thus, to give a good interpretation means that the interpretation is well-grounded, thorough, meticulous, but these criteria have at the same time ethical underpinnings. They boil down to respect for the text and what the text wants to say, a willingness to understand and a willingness to make a good and just interpretation. What does this mean for the limits of interpretation in the legal field? It means that we have some criteria by which we can assess and limit legal interpretation on the one hand and perhaps justify our interpretation choices on the other. Underlining the ethics of interpretation does not mean that we allow random or arbitrary interpretations of legal texts; on the contrary, it gives us a means of assessing and criticising interpretations.
The way interpretations of legal texts refer to the ‘wording of the text’ or the ‘ordinary meanings of words in everyday language’ etc. as a means of justifying the interpretation of the text is in this article considered dubious. The different ways in which this approach can be criticized is, however, too broad a subject to go into here.
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