Abstract
In matters such as legal interpretation, analytical legal theory (ALT) has long focused on the structure of thought rather than on the psychological process of thinking. In doing so, despite accepting that interpreting is a psychological process, linguistic and logical analysis was favored in lieu of sociological, psychological and behavioral enterprises. This is mainly because the latter—dubbed, at the best possible scenario, “soft core science”—contradicted, in his predictive aim, the paradigm of the “free-willed rational man” that ALT presupposed. But here is the twist: the model seems flawed. Rationality does not entirely explain the functioning of the human brain. Neuroscience and evolutionary psychology state the case that the human brain functions in such a way that it primarily replicates our genes over our interests or wills. In this paper, we submit that it is perhaps time to conceive “naturalizing” legal interpretation by complementing the anthropologically spare model of ALT by attending to the both blades of the scissor in Simon’s metaphor: the invariants of both language and human interpreters. Our point of departure is the neoskeptical theory and the highlighted voluntas of legal interpretation in legal realism à la génois, particularly that of Riccardo Guastini. We are primarily interested in a theory of legal interpretation with explanatory power: describing and explaining what input (that is, what combination of facts and reasons) produces what interpretative output. Our claim is that a theory of interpretation (lato sensu) will necessarily be incomplete if it does not address the conditions of the human interpreter and account for the difference between “hardware” and “software”, or, as we call them, the permanent (P-)conditions and contextual (C-)conditions of the interpreter. In our first approach at an explanatory model, the description of actual interpretations of legal agents—as well as the underlying legal arguments—is a depiction of variables that, in turn, are dependent upon invariants of human behavior. It is these biological and psychological invariants of interpretation statements qua empirical data that are subject to analysis. We conclude that addressing contextual conditions is also necessary: each contextual condition is unique and variable, but the “existence” of contextual conditions and their impact on the interpretative output is a permanent condition and should therefore be addressed in a comprehensive explanatory model.
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Notes
- 1.
According to Ogloff, a number of well-known psychologists showed interest in applying psychology’s findings to law as early as the 1890s: Cattel’s 1895 article in Science concerned how accurately one can recall information; Freud’s 1906 lectures to judges in Vienna regarded the merits of psychology in establishing facts; Watson’s 1913 article sustained that judges could make use of psychological findings. See Ogloff (2000), p. 461. However, as Ogloff also points out, the development of legal psychology in the early twentieth century was prevented by forces within psychology as well as “by a conservative backlash in law which limited the progressive scholars in the field (…). The demise of legal realism had a chilling effect on legal psychology (…).” See Ogloff (2000), p. 463. The gap between the two areas has been narrowing from the mid-twentieth century on, as psychology entered its mature age. Nevertheless, the relationship between the two is not without conflict.
- 2.
“Only with Frege was the proper object of philosophy finally established: namely, first, that the goal of philosophy is the analysis of the structure of thought; secondly, that the study of thought is to be sharply distinguished from the study of the psychological process of thinking; and finally, that the only proper method for analyzing thought consists in the analysis of language.” See Dummett (1978), p. 458; Priel (2011), p. 79.
- 3.
See Austin (1832), p. 10ff. As Herbert L. A. Hart puts it, “the analysis (or study of the meaning) of legal concepts is (a) worth pursuing and (b) to be distinguished from historical inquiries into the causes or origins of laws, from sociological inquiries into the relation of law and other social phenomena, and from the criticism or appraisal of law whether in terms of morals, social aims, “functions,” or otherwise”. See Hart (1958), p. 601, Note 25 and 608–610. “Deeply ingrained in the analytic legal philosophy literature that followed in Hart’s footsteps is an ambivalence towards the social sciences, and a conception of jurisprudence as relatively independent of them.” See Priel (2011), p. 79.
- 4.
- 5.
See Barberis (2011), p. 203.
- 6.
See, among others, Wróblewski (1989), pp. 3–16.
- 7.
See Guastini (2019), p. 25.
- 8.
See Guastini (2019), p. 14.
- 9.
- 10.
Creative interpretation is, therefore, a type of interpretation in which there is no “cooperative conditions between the utterer and the receptors” since “the receptors aim in a conscient manner to ascribe to normative statements meanings different to the one which was assigned by the utterer”. See Comanducci (2011), pp. 54–55. See also Guastini (2008a, b), p. 17.
- 11.
“Legal construction” is an expression that Guastini borrowed from Rudolf von Jhering. It consists of a set of intellectual operations which include, inter alia, (i) the creation of normative and axiological gaps, (ii) the creation of axiological hierarchies among norms, (iii) the specification of legal principles, (iv) the balancing of conflicting principles and (v) more importantly, the construction of unexpressed (so-called “implicit”) norms. See Guastini (2015), p. 47.
- 12.
- 13.
“The emotivists thought that to sincerely judge that something is good or right is to have an emotional positive attitude toward it that is capable of providing motivation for action”. See Soames (2003), p. 302.
- 14.
“Empty containers” was an expression used by Juan Carlos Bayón within the context of criticism of radical skepticism in the “Convegno Italo-Spagnolo-Francese-Portoghese di Teoria del Diritto” (Palermo 2017) under the topic of the works of Giovanni Tarello, witnessed by both authors of this paper. Note, however, that Guastini understands, in the article published in this very same book, that “(…) interpretation has (conceptual, not factual) limits, in the sense that not every sentence claiming to be interpretive can be reasonably subsumed under the concept of interpretation. Interpreting consists not in ascribing just any meaning, but in ascribing one meaning in the range of meanings admitted by (a) linguistic usage, (b) accepted interpretive methods, and (c) juristic (“dogmatic”) constructions. A limited concept of interpretation is essential in view of distinguishing between ordinary ascription of meaning to legal texts – i.e., adjudicative interpretation properly understood – and genuine “interstitial legislation” by jurists and judges.” See Guastini (2019), p. 17.
- 15.
- 16.
- 17.
On the Jørgensen dilemma, see Bulygin and Mendonca (2005), pp. 27–28.
- 18.
The neo-skeptical school raises serious doubts over the difference between hard and easy interpretive cases. See Comanducci (2011), pp. 58–59.
- 19.
See Marmor (2005), p. 9 ff.
- 20.
See Chiassoni (2008), p. 149 ff.
- 21.
See Guastini (2019), pp. 24–25.
- 22.
See Ross (1968), pp. 109–110.
- 23.
Naturally, we are dealing with regulative norms. On the difference between regulative and constitutive norms, see Ferrer Beltrán (2000), p. 123 ff.
- 24.
- 25.
This concept of hierarchy presupposes different levels of language. This is the normative mirror of the relation, in linguistics, between a metalanguage (the language of which one is speaking of) and the object language (the language one is speaking). See Guastini (2011), p. 56.
- 26.
On the “pressure of rules”, see Schauer (1991), pp. 2–5.
- 27.
See Guastini (2015), p. 49.
- 28.
“After all, it is only words that the legislature utters; it is for the courts to say what these words mean; that is it is for them to interpret legislative acts. (…) The courts put life into the dead words of the statute’ (…) statutes do not interpret themselves; their meaning is declared by the courts, and it is with the meaning declared by the courts, and with no other meaning, that they are imposed upon the community as Law”. See Gray (1948), pp. 124 ff.; 170.
- 29.
See Ross (1998), p. 161.
- 30.
See Guastini (2019), p. 14.
- 31.
On Quine’s “replacement thesis”, see Leiter (2007a), pp. 36–38.
- 32.
See Leiter (2007a), p. 40. Note that the connection between Quinean philosophy, the Realists and behaviorism is not irrelevant. All were “nurtured in a similar intellectual milieu, one dominated by “naturalism” and, more particularly, by behaviorism in psychology”. See Idem: 40.
- 33.
See Coleman and Leiter (2010), p. 228.
- 34.
See Austin (1832), p. 10ff.
- 35.
“The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation. This truth, when formally announced as an abstract proposition, is so simple and glaring that it seems idle to insist upon it. But simple and glaring as it is, when enunciated in abstract expressions the enumeration of the instances in which it has been forgotten would fill a volume.” See Austin (1832), p. 159.
- 36.
Pino claims that “this “reasonableness” qualification is sometimes present” in the works of Guastini. See Pino (2019), p. 37.
- 37.
See Pino (2019), p. 37.
- 38.
Guastini also recognizes that jurists, lawyers, and judges are frequently the very source of indeterminacy of legal texts in the sense that their language and ways of expression raise interpretive problems that would not appear in an ordinary conversation.
- 39.
“The Realists all embraced the following descriptive thesis: in deciding cases, judges react primarily to the underlying facts of the case, rather than to the applicable legal rules and reasons (the latter figuring primarily as ways of providing post-hoc rationales for decisions reached on other grounds)”. See Leiter (2007b), p. 61.
- 40.
Załuski (2009), p. 132. With their focus on norms and their exclusive reliance on armchair, analytical conceptual methodology, normativist theories of law offer few entry points for interdisciplinary perspectives. The legal realist, however, approach raises the same general questions about the determinants of human behavior encountered in sociology, economics and political science. See Dyevre (2014), p. 377.
- 41.
See Hart (1994), p. vi.
- 42.
See Kelsen (1960), p. 1.
- 43.
See Dyevre (2014), p. 372.
- 44.
See Comanducci (2011), p. 56.
- 45.
Priel explains this distrust by quoting Hart—“I have been terribly mistrustful of sociology in general. That’s an Oxford disease”—and Argyle—“I think that the prejudice against social psychology may have been because psychology itself had great difficulty gaining acceptance in Oxford in particular; Gilbert Ryle was against it … The humanities dons may have been against since their model of man was of free, rational agents, and they objected to the idea that their thoughts or behavior could be predicted and explained.” See Priel (2011), p. 79.
- 46.
See Comanducci (2011), p. 56.
- 47.
See Leiter and Weisberg (2010), pp. 31–74.
- 48.
For a brief account, see Workman and Reader (2014).
- 49.
- 50.
See Dyevre (2014), pp. 374–375.
- 51.
See Kant (1998), p. 70.
- 52.
See Kant (1781), p. 473.
- 53.
- 54.
See article 10 (3) of the Portuguese Civil Code.
- 55.
Naturally, the statement is mainly provocative. A full account of the validity of article 10 (3) of the Portuguese Civil Code would entail a thorough analysis which will not be performed here. That is not the point of this research.
- 56.
See Simon (1990), pp. 1–19.
- 57.
Though transversal to any human being, P-conditions can be coped with. That, however, does not exclude its invariance.
- 58.
See Rachlinski (2001), p. 365.
- 59.
Why not in psychology is a question that is still to be fully answered. We believe it to be partially due to the long-standing quarrel between philosophy and psychology. On the subject, see, for example, Norris (2006), p. 12ff.
- 60.
Bounded rationality is a concept that stems from the observation that when individuals make decisions their reasoning capacity is limited by available time, cognitive capacities and the nature of the situation that requires a decision. As a consequence, agents act as “satisficers”, seeking satisfactory solutions instead of optimal ones. The term “satisficing” arises from the conjugation between ‘satisfy’ and ‘suffice’ and it was coined by Herbert A. Simon, who proposed bounded rationality as an alternative to perfect rationality (the mainstream model used, for example, in economics). See Simon (1957).
- 61.
In addition to bounded rationality, people often display bounded willpower, which entails taking actions that are in conflict with their own long-term interests (smoking, not saving, etc.). See Sunstein et al. (1998), p. 1479.
- 62.
For example, transitivity of preferences is a fundamental principle shared by most major contemporary models of decision making. To have transitive preferences, a person, group, or society that prefers choice option x to y and y to z must prefer x to z. However, as highlighted by Tversky, individuals “are not perfectly consistent in their choices. When faced with repeated choices between x and y, people often choose x in some instances and y in others.” He suggested that “the observed inconsistencies reflect inherent variability or momentary fluctuation in the evaluative process. Tversky (1969), p. 31. See also Regenwetter et al. (2011), p. 43.
- 63.
Descartes (1644), pp. 19–20.
- 64.
Namely concerning the application of the mechanistic framework to human mind. Descartes thought that, in contrast to the physical body, the human mind could not be explained through the lenses of mechanicism. He was later contradicted by modern cognitive scientists. See Bechtel (2008), p. 2.
- 65.
See Cosmides and Tooby (2006), p. 186.
- 66.
- 67.
See Cosmides and Tooby (2006), p. 181ff.
- 68.
See Gaulin and McBurney (2001), pp. 19–40. “Darwin’s ideas are important to psychology because the theory of evolution is not just a theory about were species come from. Rather, the theory details a process that continually designs species. Picture a machine on the shop floor of a manufacturing plant. If someone explains to you how the machine works, you will have some idea of the product it makes. So it is with natural selection. Anyone who understands the workings of natural selection will have profound insight into the kinds of creatures it can create. (…) And the theory of evolution by natural selection is quite explicit about what these living things are designed to do, which is a matter of great importance to psychologists and anyone else who hopes to understand behavior.”—p. 19. See also Załuski (2009), pp. 15–50.
- 69.
- 70.
- 71.
See Symons (1992), p. 139.
- 72.
See Symons (1992), p. 142.
- 73.
See Dyevre (2014), pp. 364–386.
- 74.
Tooby and Cosmides describe these characteristics as “cognitive instincts”. See Cosmides and Tooby (2006), p. 186.
- 75.
See Alford et al. (2005).
- 76.
See Dyevre (2014), p. 378.
- 77.
See Benforado and Hanson (2012), p. 520.
- 78.
On the mainstream descriptive thesis of Legal Realism, see Leiter (2007a), p. 21. Do note that the difference between interpreters in general and judges for the present purposes, though relevant to an extent, should not be overweighed—nor, for the same reason, should it be the difference between Guastini’s “interpretation in abstracto” and “interpretation in concreto”. It is our understanding that it is those who sustain that such difference is highly significant who bear the burden of evidencing that “interpretation in abstracto” does not entail conceiving hypothetical legal cases (or classes of cases) that instantiate the antecedents of the normative statements which are subject of legal interpretation. If that is, however, the case, then the difference between “interpretation in abstracto” and “interpretation in concreto” is blurred.
- 79.
See Dyevre (2014), p. 370.
- 80.
Differently, software constraints will form the variable component of interpreters.
- 81.
Namely, heuristics and biases. See Tversky and Kahneman (1974).
- 82.
See Tversky and Kahneman (1974).
- 83.
See Tversky and Kahneman (1974).
- 84.
According to Kahneman, human beings are equipped with two decision-making processes:
-
a)
“System 1” processes information and produces choices in an intuitive, experiential and adaptive way: decisions are reached faster and with consumption of less resources;
-
b)
“System 2” is analytical, methodical and thorough: it consumes much more resources and is used only when deemed required.
While system 1 decides in a “satisficing way”, system 2 decides in a maximizing way. See Kahneman (2011), pp. 29–143.
-
a)
- 85.
See Klayman and Ha (1987) and Kunda (1990). A typical example is the classical study at Stanford University in which participants who were either for or against capital punishment read about studies that either supported or challenged capital punishment. It was shown that participants favored studies that followed their prior attitudes: those who were in favor of capital punishment agreed more with studies that confirmed their position and rated those studies as better and more convincing, while those who were against capital punishment favored the studies that argued against it—see Lord et al. (1979).
- 86.
See Portuguese Supreme Court decision of 03.04.2014 (process 436/07.6TBVRL.P1.S1). The Supreme Court has later changed its view—with a different set of judges—on different decisions, notably on the decision of 17.02.2009 (process 08A2124).
- 87.
The Portuguese Supreme Court decision of 03.04.2014 is fundamentally supported upon the reasoning of Vasconcelos (2015, p. 68ff).
- 88.
See Hastorf and Cantril (1954), pp. 129–134.
- 89.
See Jain and Maheswaran (2000).
- 90.
See Ditto and Lopez (1992).
- 91.
See Chueca (2015), pp. 58–59.
- 92.
- 93.
For instance, defending a univocal constitutional concept of “life”, as deduced from the constitutional concept of “human person” (“human person is any human being ever since the conception”), within the context of the Portuguese Constitution, see Otero (2016), p. 550. For an entirely different perspective, Dworkin (1993), p. 11ff. For the description of alternative interpretations of concepts such as “human person”, “human dignity”, “personal autonomy”, “life” and “health”, see Villa (2016), p. 89ff.
- 94.
- 95.
As for judicial interpretation, Richard Posner puts forward a list of variables believed to influence behaviour such as ideology, power, prestige, reputation, leisure time, and income. See Posner (1993), pp. 1–4.
- 96.
See Burnett (2016), pp. 152–187.
- 97.
See Brentari (2015).
- 98.
See Burnett (2016), p. 177ff.
- 99.
See Guastini (2012), p. 215ff.
- 100.
On the concept of “explanation”, see Brożek (2016), p. 18ff.
- 101.
See Villa (2016), p. 95ff. Frequently, the formulation or adhesion to theoretical backgrounds (certain legal, moral, philosophical or economic theories) are a vehicle for the creation of ought sentences (obligations, prohibitions and permissions) which simply do not pertain to the legal system (i.e., they are a vehicle for the pure creation of norms). See Guastini (2012), p. 213. This too has to do with theoretical background assumptions, e.g.: (a) a certain theory of legal sources (e.g., legal positivism versus “law as integrity”), (b) a certain theory of interpretation (e.g., originalism, textualism, purposivism, etc.); a certain theory on graduability and expansibility of legal principles (e.g., Alexy’s Optimierungsgebote or Sieckmann’s reiterated mandates of validity), etc. Theoretical background assumptions provide for the implicit creation of legal norms: some implicit legal norms are derived from the conjunction of the discourse of law together with a theoretical background assumption: e.g., boni mores. Other implicit legal norms are derived purely from theoretical background assumptions: e.g., arguments from “natur der sache”, human personalism, the principle of favor laboratoris.
- 102.
See Hanson (2012), p. 3.
- 103.
See Furgeson and Babcock (2012), p. 684.
- 104.
- 105.
- 106.
- 107.
See Westen et al. (2006), pp. 1947–1958.
- 108.
See Furgeson and Babcock (2012), p. 690.
- 109.
See Comanducci (2011), p. 58.
- 110.
See Leiter (2007b), pp. 65–67.
- 111.
See Comanducci (2011), p. 57.
- 112.
See 2.1 above.
- 113.
See Brożek (2016), p. 25.
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Lopes, P.M., Franco, R. (2019). Naturalizing Interpretation: A First Approach on “Hardware” and “Software” Determinants of Legal Interpretation. In: Duarte, D., Moniz Lopes, P., Silva Sampaio, J. (eds) Legal Interpretation and Scientific Knowledge. Springer, Cham. https://doi.org/10.1007/978-3-030-18671-5_4
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