The case-bound character of legal reasoning (original) (raw)
A short note on interpretation of legal texts.
In this short note I wish to argue that the conventional legal interpretative technique is not a process that can somehow ‘yield’ unique or singular ‘interpretation’ simply because interpretation is not static objective, dispassionate, process somehow operating on a legal text to extract a true unique or singular meaning. On the contrary the very act of interpretation disrupts, modifies and transforms the legal text whereby the searched for ‘meaning’ suddenly becomes meaningless and sense of justice is a process of coherence and reference. Such an experience of interpretation is reminiscent of our experience of the development of common law.
Oxford Journal of Legal Studies, 2022
Karl Llewellyn's critique of the canons of statutory interpretation led to a decline in their use for several decades. His critique, however, faced sustained resistance from some corners of the academy and the judiciary. Although this resistance has had only a selective uptake, it animated a gradual revival of the canons and brought the state of scholarship to an impasse that is for the most part partisan. In this article, I examine the semantic canons from a deeper level and argue that a universal assumption about them is false. Said assumption is that, although not dispositive, the semantic canons at least offer some reasons in favour of or against a candidate interpretation. Inclinations to rely on the semantic canons are also based on this assumption, although it is an assumption that the critics of the canons also share. I argue that this assumption is false because the semantic canons are a class of rules that are by nature not reason-giving. This provides a new ground against giving the semantic canons deliberative weight in questions of statutory interpretation. (Forthcoming in the Oxford Journal of Legal Studies. Penultimate draft).
Ordinary Meaning A Theory of the Most Fundamental Principle of Legal Interpretation
There is a long-standing judicial commitment to interpreting language in legal texts according to its ‘ordinary meaning’. That is, courts have uniformly agreed that words in legal texts should be interpreted in light of accepted standards of communication. The constituent question of what makes some meaning the ordinary one and the evidential question of how the determinants of ordinary meaning are identified and conceptualized are thus of crucial importance to the interpretation of legal texts. Yet, beyond very general characterizations or assumptions that the answers are self-evident, neither the constituent nor the evidential question has been comprehensively examined by courts or commentators. This book provides a theory that answers the constituent question and a general framework for how the determinants of ordinary meaning (i.e., the evidential question) should be identified and developed. The fundamental problem with the common process used by courts for determining the ordinary meaning of texts, such as significant reliance on acontextual dictionary definitions, is that it often does not result in interpretations that reflect the ordinary meaning of the textual language, or only coincidentally does so. One main flaw in the judiciary’s approach is a failure to properly consider context. Certainly, there is a tension between the inherent requirement of ordinary meaning that it be generalizable across contexts and the reality that meaning is inherently contextual. A significant aspect of framing the ordinary meaning inquiry, and considering arguments about it, therefore involves considering the contribution that context makes to meaning. One way to capture generalizable meanings is to conceive of ordinary meaning as being primarily based on semantic meaning. Further, a distinction between ‘narrow context’ and ‘wide context’ can be made, with ordinary meaning being determined on the basis of consideration of facts from the ‘narrow context’. In addition, one marked feature of interpretive principles is that they often serve to restrict the domains of legal texts, thereby creating a gap between literal meaning and ordinary meaning. Yet framing ordinary meaning as being primarily based on semantic meaning, determined from consideration of ‘narrow context’, does not eliminate interpretive discretion. When context is considered, the assignment of meaning invariably has an ineliminable element of interpreter discretion. This is true with respect to indexicals and quantifiers, as well as other linguistic phenomena. Nevertheless, focusing on the systematicities of language can often narrow the range of interpretive discretion and improve the judiciary’s determination of ordinary meaning.
Two Faces of Legal Reasoning: Rule-Based and Case-Based
In this chapter I would like to substantiate the thesis that legal reasoning is never purely rule-based nor case-based, as it always requires a kind of interplay between abstract rules and concrete legal decisions. In order to do so, I begin by formulating two thought experiments: one, in which a highly abstract normative order is imagined and its limitations analysed; and the other, which considers a normative order consisting of particular cases only and pinpoints its failure to deliver a solid foundation for legal decisions. I further argue that the problematic features of purely abstract and purely concrete normative systems detected in both experiments are also present in, respectively, the civil law and the common law traditions. I conclude by indicating that there is no functioning legal system without a constant “dialogue” between the abstract and the concrete.
THE LANGUAGE OF LEGAL RULES SOME NOTES ABOUT PLAIN-MEANING IN LAW
This essay examines the common opinion that there is a close relationship between the indeterminacy of legal language and hard cases. The analysis begins with Frederick Schauer's conception of plain meaning in law in order to argue that the coexistence of hard and easy cases in a legal system is independent of the written or unwritten nature of the rules involved in each case and that the distinction between hard and easy cases depends much more on the pragmatic features of legal language and the specific context in which rules are applied. To sum up the main theses presented in the essay, first, legal disputes and, especially, litigation might be either encouraged or prevented by using, according to the circumstances, a determinate or an indeterminate lexicon. Moreover, the fact that in some cases legal meanings are equivalent to ordinary meanings, while in other cases they are not, is a pragmatic feature unrelated to the original linguistic field of the terms or the nature of legal concepts used in legal provisions. Finally, the similarities and differences existing in law between technical legal meanings and ordinary meanings is the outcome of the general conception of legal language implicit in the concept of law adopted by legal interpreters.
W. Baude’s and S.E. Sachs’ paper entitled ‘The law of interpretation’ is a fascinating survey of a plethora of cases from the American common law system. The main conclusion of the article is extremely interesting both from the philosophical and practical point of view. Namely, the Authors claim that there exists something additional in the law, that has not been identified before and this is the law of interpretation. This law of interpretation is claimed to be a set of both written and unwritten rules, including the canons of construction. In the present paper I investigate the nature of this law of interpretation. A closer look at the examples provided by W. Baude and S.E. Sachs throughout their paper proves some non-homogenous nature of the unwritten rules of the law of interpretation. I claim that this non-homogeneity comes from different more fundamental facts that these unwritten rules of interpretation are related to. Moreover, I argue that the elements of the law of interpretation that are indeed incorporated into the law are in fact scarce and I investigate two main reasons for this state of affairs – the nature of context and the structure of all-things-considered moral arguments.
The common law and the forms of reasoning
International journal for the semiotics of law, 2000
The purpose of this article is to examine how various forms of reasoning both can and should be used to decide cases in the common law tradition. I start by separating positive questions about what the law is from normative questions about what the law ought to be. Next, I present a Peircean account of three main forms of reasoning-deduction, induction and abduction-and examine how they can be used by judges to decide cases in the common law. Finally, I argue that the three forms of reasoning can be used to answer both kinds of questions, but in different ways. All three forms of reasoning can be used to answer questions of positive law, while questions of normative law present a special case that may require the use of aesthetic judgments of taste in the formation of a legal hypothesis.
THE LANGUAGE OF LEGAL RULES SOME NOTES ABOUT PLAIN-MEANING IN LAW di
2013
This essay examines the common opinion that there is a close relationship between the indeterminacy of legal language and hard cases. The analysis begins with Frederick Schauer’s conception of plain meaning in law in order to argue that the co-existence of hard and easy cases in a legal system is independent of the written or unwritten nature of the rules involved in each case and that the distinction between hard and easy cases depends much more on the pragmatic features of legal language and the specific context in which rules are applied. To sum up the main theses presented in the essay, first, legal disputes and, especially, litigation might be either encouraged or prevented by using, according to the circumstances, a determinate or an indeterminate lexicon. Moreover, the fact that in some cases legal meanings are equivalent to ordinary meanings, while in other cases they are not, is a pragmatic feature unrelated to the original linguistic field of the terms or the nature of leg...
Statute Law Review , 2021
What methods, if at all, do Indian judges deploy in their law reading? In their abundant refer- ences to the term “jurisprudence”, the Indian judge gives neither precise meanings nor meth- ods to ascertaining what is jurisprudence; the judges declare when purposively breaking new grounds, or, the state constitutively roots for a strict, even a conservative, reading of its will and legislative intention. Judges while read penal and taxation statutes strictly, at the Indian Supreme Court the "ends of justice" clearly override, as it should, positivist interpretations. The legislature and the executive therefore tolerate the Supreme Court’s purposive reading down of the colonial statutes, just as, conversely, they reject the Court’s "reading down and reading wide" of politically sensitive public law statutes to defend their postcolonial intent. I aim to map the uncertain landscape of the Indian Supreme Court’s use of “jurisprudence” and jurisprudence’s relationship with statutory interpretation.
Historical Aspects of Legal Interpretation
1986
One of the most interesting developments within contemporary legal theory has been the increasing importance accorded to the concept of interpretation. It is fortunately no longer possible to speak uncritically of, or simply to assume, the communicational and linguistic dimensions of legal regulation or of legal institutional discourse. While the concepts of communicationof discourse, language, text and sign-have long been key terms of debate within philosophy, literary theory and cultural studies, it is really only very recently that lawyers and particularly the legal academy have begun to take a serious if somewhat defensive interest in these disputes. The issues raised and the interests threatened are ponderous and vast; many of the dogmatic articles of legal faith are at stake and it should not be viewed as surprising if the debates as to the substantive implications of different forms of interpretation appear at times extreme and the positions adopted seem labored or untenable....
Journal of Siberian Federal University. Humanities & Social Sciences
The subject of this article is a method of jurisprudential definition introduced by a British philosopher and jurist H.L.A. Hart. In particular it discusses: (1) the author's account of specificity of legal discourse (meaning and speech function of legal concepts) and discrepancy between that and a traditional method of definition per genus et differentiam; (2) Hart's alternative method of "philosophical definition" of legal concepts; (3) correlation of this method with other definitive / explanatory techniques used by the author in 1949-1961 papers and further; (4) complexities of jurisprudential and philosophical character related to Hart's method. Special attention is paid to Hart's position as to relationship between semantics and pragmatics in legal discourse (and so in "philosophical definition"). The conclusion is established claiming a change of the author's corresponding views: a transition to a looser type of connection between meaning and force of legal concepts in which these concepts (while maintaining its social, institutional character) can be used both in descriptive ("external") and "ascriptive" / normative ("internal") statements.
Textualism and legal interpretation: the canons of legal interpretation of Antonin Scalia
Jogtudományi Közlöny
In the age of written law, in the last two hundred years of Western legal development, the meaning of the written text of legal norms was the starting point for any jurist to research the case-specific meaning of the law of a particular country and to make judgments, etc., based on the case. However, the extent to which this text is decisive for the legal decision of a case varies greatly, depending on the legal view of the jurist who applies the written law to the case. Indeed, the abstract text of the law contains only the most important facts, and cases always appear to the jurist applying the law with many, many details, and depending on the weight he attaches to these details - or whether he considers some of them together with the facts corresponding to the law in question - he may attach different meanings to them and even apply his judgment of a particular case to other legal provisions. Similarly, if one uses a general principle of law or a category of legal doctrine to assess the facts of the case and considers the guidelines of the legislation in light of it, one may in turn take the assessment of the case in different directions. Similarly, when the underlying statutory text is considered together with previous supreme court jurisprudence, the text may be given a different meaning than when it is considered alone. Finally, there is also the possibility that the judge will include fundamental constitutional rights in his or her assessment of the case and attempt to interpret the text of the statutory provision in question in light of those rights. Thus, the question arises to what extent, in addition to the primary importance of the statutory text, the latter is to be regarded as determinative for the case decision and when one can go beyond the text and draw on the decisional power of the other legal layers and include the context of legal principles and legal doctrinal categories as well as previous higher court jurisprudence and the requirements of fundamental rights in the legal decision. In my own earlier work, I mainly analyzed the possible implications of the different legal layers in interpreting the law and tried to show the role of the different legal layers in interpreting the law in the prevailing legal view in some European and North American countries, but I did not analyze the exact scope of the law while pointing out the primacy of the textual level (Pokol 2001). Perhaps the most important contemporary proponent of the textualist view of law, U.S. Supreme Court Justice Antonin Scalia, has published a new book, "Reading Law. The Interpetation of Legal Texts" (Thomson and West 2012), and it provides an opportunity to analyze in more detail the role of the textual level of law in interpreting law at different levels of law. Scalia's co-author on this book, as on an earlier one published in 2008, is his young colleague Bryan A. Garner, a linguist and legal linguist. Thomson and West Edition. 2008.) Since this book is essentially just a continuation of a particular version of textualism that Scalia had developed over many years, I identify with him in the positions he takes in this book, and for simplicity's sake I interpret the book below as his ideas.
[2008] Making the Law Explicit: The Normativity of Legal Argumentation
2008
Legal argumentation consists in the interpretation of texts. Therefore, it has a natural connection to the philosophy of language. Central issues of this connection, however, lack a clear answer. For instance, how much freedom do judges have in applying the law? How are the literal and the purposive approaches related to one another? How can we distinguish between applying the law and making the law?
Report from the workshop: Historical and New Approaches to Legal Interpretation
The Lawyer Quarterly, 2019
On 14 September 2018, the international workshop entitled “Historical and New Approaches to Legal Interpretation” was held at the Faculty of Law of Charles University in Prague. The workshop was organized mainly by JUDr. Pavel Ondřejek, Ph.D., within the Charles University programme Progres Q04 “Law in a Changing World” in cooperation with the Czech Section of the International Association for Philosophy of Law and Social Philosophy (IVR). The special workshop was a result of a cooperation between the Faculty of Law, Charles University and the Faculty of Law, University of Eastern Finland. Its main aim was to explore new ways of searching for knowledge in the very important theoretical field of legal interpretation. The workshop speakers consisted of three Finnish and four Czech legal theorists. The first panel “Reflections on ‘Savigny’s Canons’ of Interpretation”, was opened by Professor Seppo Sajama (University of Eastern Finland Law School) with his speech “The Systematic Canon”....
Legal Disagreements and Theories of Reference
Perspectives in Pragmatics, Philosophy & Psychology, 2016
According to Hartian positivists, law is a conventional practice that requires a convergence that includes not only the regularity of behavior but also of certain beliefs and attitudes. It is easy to conclude that in this framework the meaning of terms is determined by shared criteria that are transparent to all parties, a form of semantic descriptivism. This, at least, is the way in which Dworkin and his followers have interpreted Hart's positivist stance. The problem is that disagreements often arise on how to interpret the words of the law, and this fact seems to conflict with the emphasis of positivism on the idea of agreement, or so it is argued. If the meaning of legal terms depends on shared criteria, why do individuals disagree? And if they disagree, what does their disagreement consist in? 2 We use the word "conventional" in a more flexible way than Lewis (1969) and the authors that discuss him. Regarding the conventional nature of law, see (Marmor 2009) and (Vilajosana 2010). 3 There is an important difference, often missed, between interpretive disagreements, disagreements about the concept of law and disagreements about the sources of the law, among others. Here we will analyze only interpretive disagreements, that is, disagreements about the content of the law. 4 Descriptivism finds its inspiration in the semantic theories of Gottlob Frege and Bertrand Russell. Russell (1910-1911 and other works) explicitly defended that referential terms such as proper names are abbreviations of definite descriptions. Frege's commitment to descriptivism is debatable. According to Frege (1892) what determines the reference of expressions is a sense, conceptual
Analisi & diritto, 2021
The mainstream view on legal interpretation relies on different theories of ordinary meaning in order to set down what the legal meaning is and how to grasp it. In this essay I distinguish among the current theories of meaning by classifying them into two broad groups, or better, two ideal models: rule-based theories and speaker-based theories. This distinction is not meant to be mutually exclusive nor collectively exhaustive. However, these two models, and the difference between them, are interesting for my purposes in so far as they are usually considered the best candidates to account for legal meaning, i.e. the meaning of legal texts. Against these common views, I will attempt to show that the application of both models to legal interpretation is problematic. Even though for different reasons, both models are not suitable for legal domain. The failure of both models brings out an irreducible difference between ordinary understanding and legal interpretation and produces some unpleasant consequences. In particular, it results in the collapse of the distinction between creation and application of law.