Abstract
The chapter proceeds in the exploration of the dispute between interpretive cognitivism (“formalism”) and non-cognitivism (“realism”) from a further vantage point. It considers and compares two competing theories concerning the notions of legal interpretation and of general norms of written-law. These are the frame of interpretations theory and the container-retrieval theory—the latter, as we shall see, in a conventional linguistic meaning variety. Three lines of argument will be deployed to defend the frame theory from “retrievalist” critiques. To begin with, I will claim that it is immune from the pretended capital flaw of being unable to allow for a clear-cut distinction between explicit norms (the norms representing the meaning of a legal provision) and implicit norms (the norms “without provision” representing the un-expressed, tacit, content of the law). Furthermore, I will claim that it is also immune from a second, pretended capital flaw: i.e., its alleged inability to discriminate between legal orders where legislation is a source of law and legal orders where legislation is not a source of law. Finally, I will argue that, as a theory of written norms, interpretation and argumentation, the frame theory enjoys of a competitive advantage over the rival theory, on four grounds: juristic commonsense, contemporary pragmatics, ideological neutrality, and conceptual adequacy. As a whole, the chapter purports to add another, third, link to the argument for a realistic, construction conception of legal meaning.
If “interpretation” is understood as cognitive ascertainment of the meaning of the object that is so interpreted, then the result of a legal interpretation can only be the ascertainment of the frame that the law that is to be interpreted represents, and thereby the cognition of several possibilities within the frame
—H. Kelsen (1960)
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Notes
- 1.
Interpretive argumentation is, in turn, one variety of argumentation “in law”, or “as to the law”, along with argumentation concerning the filling up of gaps (integrative argumentation), the resolution of antinomies (normative conflict argumentation), etc. On these topics, see Chap. 2, Sect. 2.2.1.2 above and Chap. 7 below.
- 2.
- 3.
The idea of staging a contest between the “frames of interpretations” theory and the “container-retrieval” theory came to me from reading a discussion on Riccardo Guastini’s book Interpretare e argomentare (Guastini 2011a), edited by Vito Velluzzi (2013b), with essays by Velluzzi (2013a, pp. 73–76), Pino (2013, pp. 77–101), Diciotti (2013, pp. 103–123; for a sequel to the discussion, see also Diciotti 2014, pp. 57–71), and Guastini (2013, pp. 125–136). There, the usual terminology is employed and old characters are around. I thought the experiment of upsetting terminology and disguising old characters useful; furthermore, the “frames of interpretations” theory does not correspond, from a strictly philological perspective, to the theory of any individual author participating in that debate. It is my own rendering and reconstruction of a set of ideas I deem worthwhile considering.
- 4.
- 5.
On Kelsen’s “Wiener Realism”, see Chiassoni (2013).
- 6.
On these notions, see also Chap. 2, Sect. 2.2, above. What about customary law and case law? Clearly, the apparatus I am rehearsing in the text does not apply to these forms of “unwritten law”. Nonetheless, it can be used to build up conceptual structures endowed with like clarification virtue. Concerning customary law, it suggests distinguishing between custom-practice and custom-rule. Custom-practice is the set of iterated behaviours that make up the behaviouristic “text” out of which some custom-rule can be extracted, by way of an activity of custom-practice interpretation. The custom-rule is, accordingly, a rule that is the output of interpreting a custom-practice. Clearly, the whole activity is thoroughly “theory-laden”. It requires the choice and mastery of some conception of customary law, providing criteria for distinguishing custom-practices from like social phenomena, and living custom-rules from dead or still-to-be-born ones. Furthermore, it requires identifying a social practice as a custom-practice, and then interpreting it. Concerning case law, it suggests, likewise, distinguishing between precedent-opinion and precedent-rule (precedent-holding). The former is the text out of which the latter is identified by means of interpretation. On interpretation of judicial precedent, see Chap. 9, Sect. 9.4, below.
- 7.
- 8.
- 9.
Of course, the outcome of practical interpretation proper can also be translating a legal provision into two or more explicit norms. In the text, I will always refer to a singular norm for simplicity’s sake.
- 10.
The logical structure of an interpretive argument can be reconstructed, for instance, as follows: 1. Statutory provisions should be translated into the norm(s) corresponding to their literal meaning. 2. a is a statutory provision. 3. b is the norm corresponding to the literal meaning of a. 4. a should be translated into the norm b. The adoption of premise 1 can also be considered as what justifies a different logical structure, like, e.g., the following.: 1’. The legally correct meaning of statutory provisions corresponds to their literal meaning. 2. a is a statutory provision. 3’. b is the literal meaning of a. 4’. b is the legally correct meaning of a. On translation rules, see Chap. 2, Sect. 2.2.1.1 and Chap. 3, Sect. 3.4 above.
- 11.
- 12.
As you may remember (Chap. 2, Sect. 2.2.1.1, Chap. 3, Sects. 3.4 and 3.6 above), we may single out six different types of translation rules: (a) rules of linguistic interpretation (e.g., “Statutory provisions should be interpreted according to the ordinary linguistic meaning of their expressions at the time of their enactment”); (b) rules of intentional or genetic interpretation (e.g., “Statutory provisions should be interpreted according to the original semantic intention of the historical legislator”; “Statutory provisions should be interpreted according to the counter-factual semantic intention of the historical legislator”, etc.); (c) rules of teleological interpretation (e.g., “Statutory provisions should be given the meaning pointed out for them by the objective purpose they serve”); (d) rules of authoritative interpretation (e.g., “Statutory provisions should be given the meaning established for them by the Supreme Court in its opinions”); (e) rules of systemic interpretation (e.g., “Statutory provisions should be given the meaning pointed out for them by the relevant constitutional principles”); (f) rules of “heteronomous”, substantive, normative-ethics, interpretation (e.g., “Statutory provisions should be given the meaning pointed out for them by the critical morality they refer to”).
- 13.
For instance: “N1 is the (all-things-considered) legally correct meaning of legal provision LP1, since it corresponds to the literal meaning of LP1, amounts to a clear prescription as to the individual case at hand, and there is no room for legislative intent, or any other form of interpretation, when the literal meaning is clear”. As we have seen, which translation rules should be used depends on the selection rule the interpreter stands for. See Chap. 3, Sect. 3.4, above.
- 14.
Preference rules typically include rules of systemic interpretation, like, e.g., the consistency and completeness rules: “Statutory provisions should not be given any meaning logically incompatible with constitutional principles”, “Statutory provisions should not be given any meaning incompatible, from a teleological perspective, with the fundamental principles of the legal system”, “Statutory provisions should be given the meaning, among the several ones identified by means of translation rules TR1 … TRn, that is most instrumentally in tune with the requirements of fundamental principles”, “Statutory provisions should not be given any meaning showing the law to be incomplete as to the case at hand”, etc. On preference rules see Chap. 3, Sect. 3.4, above.
- 15.
The situation does not change when legal provisions concerning the “proper ways” of interpretation and integration are enacted. First, such provisions are not self-interpreting: they need to be interpreted by judges, jurists and lawyers. Second, on a literal reading, they usually provide a set of fatally indeterminate and dubiously ordered interpretation and integration rules.
- 16.
The “maxims” that rule over interpreters dealing with interpretive rules will be considered further in the next chapter (see Chap. 6 below).
- 17.
- 18.
There may be methodological disputes in a legal culture as to the methods to be considered as “approved” by the law. In such cases, conjectural interpreters must record and take into account them in their inquiries.
- 19.
(MCS) “Legal provision LPi expresses either the norm N1, if it is being interpreted according to the (paramount) translation rule TR1 and the set of interpretive resources IR1, or, rather, the norm N2, if it is being interpreted according to the (paramount) translation rule TR2 and the set of interpretive resources IR2, or, rather, the norm …”. See Chap. 2, Sect. 2.2.2.1, above.
- 20.
- 21.
For instance, a methodologically viable interpretation of a marriage provision to the effect of covering same-sex unions may be unviable—i.e., likely to be considered “wrong” and rejected—from the standpoint of prevailing social ideologies.
- 22.
- 23.
- 24.
- 25.
See Sect. 5.2 above.
- 26.
A container-retrieval view like the one I consider in the text is apparently endorsed, e.g., by Diciotti (2013), pp. 103–124, at pp. 105 ff. Here and in other parts of my paper I will use Diciotti’s views, as I see them, as endowed with exemplary value to the purpose of my argument.
- 27.
The archetype of the container-retrieval view in contemporary jurisprudence is usually located in ch. VII of Hart (1961). For a similar view of more recent cast see Soames (2007). In his Problems of the Philosophy of Law (Hart 1967, pp. 105–108) and the Introduction (Hart 1983a, pp. 7–8) to his Essays in Jurisprudence and Philosophy (Hart 1983b), Hart avows his former view was an “oversimplification”, and makes clear that the determinate meaning of legal rules may depend not only on linguistic conventions, but also on the “special conventions on the legal use of words” and on interpretive techniques (like, e.g., resort to “the obvious or agreed purpose of a rule”). Apparently, in his rejection of a purely “retrieval conception” of legal interpretation, J. Raz goes along the same line as the “second” Hart. See Raz (2009), part III.
- 28.
Diciotti calls it “interpretation strictu sensu” (in a narrow sense): Diciotti (2014), p. 62.
- 29.
Vagueness collapses into ambiguity, since it consists in the possibility of two alternative meanings for the same vague text: a wider meaning, including the penumbral case in the area of the “positive reference” of the vague predicate, and a narrower meaning, including the penumbral case in the area of the “negative reference” of the vague predicate. On the collapse of vagueness into a form of ambiguity insists Diciotti (2014), pp. 64–65, who talks of “potential ambiguity”.
- 30.
The argument runs as follows. Whenever an agent (say, a judge) disambiguates or precisifies the literal meaning of an ambiguous or vague legal provision, the output is still made of literal meaning: the alternatives among which the agent makes a choice “can be considered norms that are expressed” by the legal provision at stake, since they are the output of a “simple” disambiguation or “precisification of the literal meaning of” the legal provision (Diciotti 2014, p. 64).
- 31.
A further possibility of making sense of the conventional meaning theory would be reading it as an empirical claim about what is the “common way” of reading legal provisions and establishing the content of legal system. As to “our” legal systems, however, such claim would be clearly false.
- 32.
“If such a distinction is not possible, it is also impossible to distinguish explicit norms [norme espresse] from implicit norms [norme inespresse] by looking at the methods by means of which they are identified” (Diciotti 2013, p. 106, my translation).
- 33.
Diciotti (2013), pp. 107–108.
- 34.
- 35.
Diciotti (2014), pp. 63–65.
- 36.
- 37.
Diciotti (2014), pp. 60–61.
- 38.
Diciotti (2014), p. 61, italics added (ndr).
- 39.
References
Bulygin E (1991 [1994]) On Legal Interpretation. In: Koch H-J, Neumann U (eds) Praktische Vernunft und Rechtsanwendung / Legal system and practical reason, ARSP-Beiheft 53. Franz Steiner, Stuttgart, pp 11–22
Carrió GR (1965) Notas sobre derecho y lenguaje. Abeledo-Perrot, Buenos Aires
Chiassoni P (2013) Wiener realism. In: Duarte d’Almeida L, Gardner J, Green L (eds) Kelsen revisited. Hart, Oxford, pp 131–162
Diciotti E (2013) Norme espresse e norme inespresse. Sulla teoria dell’interpretazione di Riccardo Guastini. Rivista di filosofia del diritto/J Legal Philos 1:103–123
Diciotti E (2014) Il realismo giuridico e l’interpretazione della legge. Analisi e Diritto:57–71
Guastini R (2011a) Interpretare e argomentare. Giuffrè, Milano
Guastini R (2013) Replica. Rivista di filosofia del diritto/J Leg Philos 1:125–136
Hart HLA (1961) The concept of law. Third edition, with a Postscript edited by PA Bulloch and J Raz, And with an introduction and notes by L. Green. Oxford University Press, Oxford, 2013
Hart HLA (1967 [1983]) Problems of the philosophy of law. In: Hart HLA (ed) Essays in jurisprudence and philosophy. Clarendon Press, Oxford, pp 88–119
Hart HLA (1977 [1983]) American jurisprudence through English Eyes: the Nightmare and the Noble Dream. In: Hart HLA (ed) Essays in jurisprudence and philosophy. Clarendon Press, Oxford, pp 123–143
Hart HLA (1983a) Introduction. In: Hart HLA (ed) Essays in jurisprudence and philosophy. Clarendon Press, Oxford, pp 1–18
Hart HLA (1983b) Essays in jurisprudence and philosophy. Clarendon Press, Oxford
Kelsen H (1960) Reine Rechtslehre, 2nd edn. Deuticke Wien [eng. tr. The pure theory of law. The University of California Press, Berkeley, and Los Angeles, 1967]
Pino G (2013) Interpretazione cognitiva, interpretazione decisoria, interpretazione creative. Rivista di filosofia del diritto/J Leg Philos 1:77–101
Raz J (2009) Between authority and interpretation. On the theory of law and practical reason. Oxford University Press, Oxford
Soames S (2007) Interpreting legal texts: what is, and what is not, special about the law. Paper presented at “An International Conference on Law, Language, and Interpretation”, University of Akureyri, Akureyri, Iceland, April 1–2, 2007
Velluzzi V (2013a) Introduzione. Rivista di filosofia del diritto/J Legal Philos 1:73–76
Velluzzi V (ed) (2013b) Interpretazione e costruzione del diritto. Riflessioni su Interpretare e argomentare di Riccardo Guastini. Rivista di filosofia del diritto/J Legal Philos 1:73–136
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Chiassoni, P. (2019). Frames v. Containers. In: Interpretation without Truth. Law and Philosophy Library, vol 128. Springer, Cham. https://doi.org/10.1007/978-3-030-15590-2_5
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