Abstract
While some descriptive and normative theories of legislation account for an extensive role of legal interpretation in legislation, others see its legislative role as marginal. Yet in contemporary constitutional democracies, where legislation is limited and guided by constitutional norms, as well as international and supranational law, legal interpretation must play some role in legislation—even if all or most of legislative activity may not be adequately described and evaluated as legal interpretation. In this chapter, I aim to explore some implications of recognizing the role of legal interpretation in legislation—notably, for the conceptualization and significance of legal expertise in the legislative process, as well as for determining the moral duties of legislative representatives. First, I argue that the role of legal interpretation in legislation calls for institutional reforms in legislatures in order to ensure that legal expertise is adequately channeled into the legislative process, including agenda-setting. Second, I argue that interpreting legal norms through legislation implies specific moral duties for legislative representatives, both in their relations to one another and in their relations vis-à-vis their constituents. I show that giving legal interpretation its due in a descriptive and normative account of legislative activity does not imply an elitist understanding of legislation, and it does not compromise our conception of legislatures as loci of political and moral disagreement and democratic representation.
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Notes
- 1.
I will use the term ‘constituents’ throughout this chapter to refer to ‘those who are or should be represented’ by a given representative. I take no substantive position here on whom legislative representatives should represent.
- 2.
For a critique of such a broad definition, see Endicott (2012), who would prefer to see a lot of what falls under this definition of interpretive activity as reasoning but not interpretation. Finnis (1987, pp. 357, 359) also prefers the use of ‘practical argumentation’ or ‘practical reasoning’ to the broad use of interpretation. Ronald Dworkin (1987) is a well-known proponent of the broad understanding of interpretation which arguably extends to most of moral and legal reasoning (even though he also puts forth his own specific, substantive theory of ‘constructive interpretation’). He is not without precursors, of course, in assuming a broad understanding of interpretation. Cf. Kelsen’s (1934, p. 50) broad, but positive law-oriented definition: ‘Interpretation is an intellectual activity that accompanies the law-creating process as it moves from a higher level of the hierarchical structure to the lower level governed by this higher level.’ (Arguably, Kelsen’s definition is so broad as to also include voluntaristic elements – see Kelsen 1934, §38, pp. 82–83.) The present chapter’s use of the term falls within the family of broader conceptions of interpretation, but preserves the contrast between interpretation and acts of will. Further, I acknowledge the differences between various kinds of practical reasoning that could be brought under this umbrella term, and I indicate more precisely which one I refer to when it matters for my argumentation, especially in Sects. 3, 4, and 5.
- 3.
This is not to say that legislators only engage in such interpretation ex ante. Just as courts untypically engage in ex ante interpretation in addition to their more typical role of ex post interpreters, legislators may engage, albeit untypically, in ex post legal interpretation. The U.S. Supreme Court cites a famous example in its judgment in New York Times v. Sullivan 376 U.S. 254 (1964), at p. 276: ‘Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history. Fines levied in its prosecution were repaid by Act of Congress on the ground that it was unconstitutional.’ The Sedition Act of 1798 expired in 1801, but Congress interpreted the First Amendment of the US Constitution to prohibit the restrictions of the (by then, expired) act on freedom of speech as it enacted the compensatory Act of July 4, 1840.
- 4.
See Finnis (1998, pp. 266–273). However, cf. Waldron (2010, p. 2), who disagrees with the voluntaristic understanding of specification in Aquinas’ theory in particular, or in natural law theory in general: ‘These details are not given as matter of the initial apprehension of natural law, though it would be wrong to suggest (as some natural lawyers do) that they are therefore in a domain of creativity or pure will, as though moral considerations had run out altogether.’ My point is not to present a particular understanding of either Aquinas or natural law theory more broadly, but rather to provide an initial survey of legislative activities where the voluntaristic aspect of legislation may be relevant, in order to contrast the voluntaristic and the interpretive aspects in what follows.
- 5.
The UK constitutional doctrine of parliamentary sovereignty is also an apt example of a thoroughly voluntaristic conception of legislation (see, e.g., Goldsworthy 2010).
- 6.
I will say more on the relationship between interpretation and specification below.
- 7.
See Alexy (2009) on constitutional rights as principles—defined, in turn, as optimization requirements.
- 8.
Schauer (1981, pp. 228–230) distinguishes between the coverage and protection of an individual right: coverage refers to the scope of a right considered in itself, while protection refers to the scope of the right determined by taking conflicting rights and principles into consideration.
- 9.
A representative statement of this approach is Kai Möller’s: ‘democracy is about making majority decisions which reflect reasonable ways of specifying the spheres of autonomy of equal citizens; and constitutional rights give each citizen an entitlement to the effect that a policy which affects his personal autonomy must be based on a scheme which specifies his sphere of autonomy in a reasonable way’ (2012, p. 122). Möller characterizes Mattias Kumm’s view as even more radical than his own: ‘Kumm rejects the idea that rights cover only a limited domain of politics and claims, strikingly, that all of politics is about specifying the rights of free and equal citizens’ (p. 109, emphasis added). Note that this is a much stronger claim that merely saying that constitutional rights and human rights affect all political decisions—which may mean no more than that no domain of legislation is exempt from substantive constitutional or human rights constraints (e.g., not even private law, cf. Sajó and Uitz 2005).
- 10.
Cf. John Finnis’ (1987) critique of Ronald Dworkin’s interpretive theory in Law’s Empire: Finnis (1987) argues that Dworkin fails to notice that ‘in relying (say, for the premisses of an argument) on what one believes, one relies on it under the description what is [or: seems to be] the case, not under the description what I believe about what is the case’ (p. 365, original emphases and parentheses; see also pp. 360–361). In other words, reasoning about justice is not the same as taking one’s convictions about justice and interpreting them as the ultimate objects of interpretation. Reasoning should take justice as its ultimate object, and not mental states, even if it cannot but engage with mental states. (The moral epistemology behind these claims is undoubtedly controversial—but this is not the place to enter such controversies.)
- 11.
Endicott (2012, p. 115) expresses a critique along the same lines, rejecting the idea of interpreting social practices as a way to make claims about justice: ‘The idea is that the interpretive data consist of the judgments of justice and injustice that members of a community have a practice of making, and also of the sorts of argument that the participants in the practice make in defending their judgments. […] a conclusion as to what justice requires in a particular case will be more attractive if it better fits those facts’. Endicott rightly criticizes this approach for its undue deference to the status quo: ‘The practices of a community have a crucial bearing on the demands of justice in all sorts of ways—but not in the respect that a judgment of justice must fit them’ (2012, p. 116).
- 12.
Further, the interpretive aspect of legislation may also extend, on a more communitarian conception, to the interpretation of the cultural or political identity or heritage or customs, or social practices, of the political community. Arguably, such interpretive activities less clearly share the characteristics of normative reasoning than legal or moral interpretation. They may or may not have a readily identifiable object of interpretation—if they do, this brings them closer in method to legal interpretation (at least that of positive law); if they do not, this strengthens the methodological analogy with moral interpretation understood as moral reasoning. The substantive evaluation of this communitarian conception of the interpretive aspect of legislation is beyond the scope of this chapter.
- 13.
First Amendment to the US Constitution.
- 14.
Cf. the European Parliament legislative resolution of 26 March 2019 on the proposal for a directive of the European Parliament and of the Council discontinuing seasonal changes of time and repealing Directive 2000/84/EC, Preamble, (7a): ‘For the purpose of ensuring a harmonised implementation of this Directive, Member States should cooperate with one another and take decisions on their envisaged time arrangements in a concerted and coordinated manner.’ Article 2 of the proposed text provides more details on the coordination mechanism.
- 15.
While it is the daily business of courts to specify the content of one norm with regard to the content of another norm as they apply legal norms, legislatures also engage in interpretive specification tasks of this kind, especially when they implement international or supranational legal norms in national legislation. As Kelsen (1934) already reminds us, norm-creation and norm-application form a continuum rather than being activities entirely distinct from each other.
- 16.
This is simply because certain roles in the legal profession, as well as substantive legal expertise in some domains, require an understanding of how a particular decision affects diverse interests—which is crucial for the competent interpretation and application of legal and moral norms. This is not to say that legal expertise necessarily entails higher moral sensitivity or especially privileged epistemic access to fundamental moral principles. Acquiring legal expertise is, instead, merely one possible way to acquire the skill of interpreting abstract norms and applying them to particular, rather complex factual circumstances—a skill that I assume to be transferable to the realm of moral norms. Cf. János Kis (2009, pp. 580–581), who emphasizes the significance of the complexity of the social circumstances to which political morality applies for the design of democratic institutions: ‘moral judgment requires no expertise or special information: the lights and the knowledge of any reasonable citizen are sufficient to form considered convictions on them. […] This argument makes perfect sense in the domain of personal morality where the interacting people have the opportunity for acquiring shared experience. But it needs qualification at the level of issues raised by political morality. In some cases, those issues involve judgment on complex social mechanisms.’
- 17.
A related but distinct question has recently been explored by Donald Bello Hutt in an essay that was published and came to my attention while I was preparing the final draft of this chapter (Bello Hutt 2020). The question which drives Bello Hutt’s inquiry is this one: can we think of political representation as an activity analogous to legal interpretation? Bello Hutt is especially interested in constitution-making, and he envisages political representation in the constitution-making process as an interpretive activity whose subject matter (i.e., what is interpreted) consists in the preferences of those represented. By contrast, I am primarily interested in legislation, and in what it implies for the duties of political representatives to envisage legislation as an interpretive activity whose subject matter is pre-existing law. Hence, while we both see affinities between legal interpretation and political representation, Bello Hutt and I explore rather different questions. However, it matters for both of us, even if for different reasons, that legislative representatives have to discharge fairly complex tasks in order to translate their constituents’ views and preferences into a legal form—an insight that goes largely unnoticed in the literature on political representation.
- 18.
In this respect, I provide the skeleton of a functionalist account of the duties of legislative representatives (for the general characteristics of such accounts, see Thompson 1987, pp. 99–102). My inquiry is normative rather than conceptual: I wish to provide an outline of some specific duties of representatives that follow from the Legal Interpretation Approach, rather than analyzing the concept of representation (cf. Saward 2010; Rehfeld 2006, 2018).
- 19.
The distinction between horizontal and vertical duties concerns the subject matter of these duties, and not their addressees. Both kinds are most intuitively conceived as owed to those represented—even though representatives may owe some of their duties to their own constituents, while others to all those represented by the legislative assembly.
- 20.
Cf. Bello Hutt (2020), who aptly points out that ‘[…] a fundamental aspect of the job typically attributed to representatives [is] to create law, the most salient features of which are abstraction and generality. It is an essential part of representative lawmaking procedures that their outcome is abstracted from the specific preferences of concrete individuals’ (p. 359, original emphasis). Representatives, on his account just as well as on mine, should ‘not take constituents’ preferences as mere information but rather as material that needs to be shaped and accommodated to the production of law’ (p. 360). Bello Hutt focuses on preferences, while I discuss interests here. Yet despite some significant differences between these concepts, we both discuss the role of political representation in turning the more particular into the more universal in the process of law-making—which, on my account, also consists in legal interpretation in a wide range of cases.
- 21.
These duties may raise questions as to what kind of competence voters should have in order to be in a position to authorize representatives and hold them to account regarding matters of legal interpretation. This may be particularly important because the legalistic aspect of legislative work is likely to increase the already significant information asymmetry between voters and representatives, and hence to further undermine voters’ potential for both authorization and accountability. While I have no space here to discuss this challenge in detail, suffice it to say, on the one hand, that the general public can understand as well as substantively and meaningfully engage with legal debates if the relevant information is adequately conveyed to them—and, on the other hand, that such information may well be conveyed to the general public not only by representatives but also by third parties such as the media or civil society organizations. For an account of why adult voters should not be subject to any competence requirement as a condition of their enfranchisement, see Mráz (2020).
- 22.
Cf. the earlier work of John Rawls (1971), who famously held that a member of the legislative assembly should ‘vote his [sic] opinions as to which laws and policies best conform to principles of justice’—i.e., to the correct principles of justice (p. 361). Dennis Thompson’s (1987) critique of this position focuses on the fact that there is disagreement within legislatures about what are the correct principles of justice, and hence Rawls’ requirement demands either too little (no criterion at all to guide conduct) or too much (as principles may be subject to reasonable political disagreement). By analogy, without consensus on the legal sources as the objects to be interpreted at least, either not much follows from the Legal Interpretation Approach with regard to legislative representatives’ duties, or the duties which follow are themselves controversial as they depend on substantive legal and political positions that representatives may reasonably disagree on.
- 23.
See, for instance, Avishai Margalit’s (2010) work on compromises and, in his terminology, rotten—morally impermissible—compromises.
- 24.
Cf. Roni Mann’s (2018) work on the non-ideal theory of constitutional adjudication, which grapples in a highly informative way with the dual—principled and strategic—nature of adjudication by constitutional courts operating in non-ideal circumstances.
- 25.
Preambles, though, which by themselves lack any normative force, are a grey area: they are part of the text voted on, but they tend to contain reasons for adopting the ensuing legal norms.
- 26.
This is not to deny that some legislative representatives may not be morally authorized to compromise on legal interpretations relevant to legislative activity, given what they owe to their constituents. This may especially readily apply to representatives who can properly see themselves as morally tasked (or even legally tasked, for example through some quota measures) to ensure representation for a disadvantaged, politically unrepresented or underrepresented group or minority (cf. Mráz 2021), and especially when such representatives consider issues of legal interpretation that they see as concerning core matters of principle for the disadvantaged community represented, rather than as concerning ‘merely’ individual or group interests. Such core matters of principle could include, for instance, the state’s legal duties of rectification for past injustices, or its duties of non-discrimination or affirmative action, or respect for minority rights.
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Acknowledgements
I would like to thank the organizers and participants of the IVR Special Workshop on Legisprudence and Legal Theory: Democracy, Diversity and Dignity in Lawmaking at the University of Lucerne, as well as participants of the Law and Morality Workshop at Eötvös Loránd University’s Institute of Philosophy. Thanks are due to Péter Cserne, Dmitrii Dorogov, Ákos Forczek, Zsolt Kapelner and Anna Réz for very helpful conversations and comments on an earlier draft. This work has received funding from the European Union’s Horizon 2020 research and innovation programme via the REDEM project (www.redem-h2020.eu) under grant agreement No. 870996.
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Mráz, A. (2022). Legislation as Legal Interpretation: The Role of Legal Expertise and Political Representation. In: Ferraro, F., Zorzetto, S. (eds) Exploring the Province of Legislation. Legisprudence Library, vol 9. Springer, Cham. https://doi.org/10.1007/978-3-030-87262-5_3
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