Jack Balkin, Yale Law School; Understanding Legal Understanding: The Legal Subject and the Problem of Legal Coherence (original) (raw)
Related papers
2007
Instead of seeing legal coherence as a preexisting feature of an object apprehended by a subject, we should view legal understanding as something that the legal subject brings to the legal object she comprehends. Because the legal subject is herself socially constructed, we must consider how her social construction leads her to understand the legal system or its parts as possessing or lacking coherence. The goal of this approach is not to replace all inquiries about the legal object with those about the legal subject; it is rather to see the subject and object of legal interpretation as equal partners in the constitution of the legal system. We must pay greater attention to the legal subject now only because we have paid it so little attention before.
Legal Interpretation and Coherence
This essay has three interrelated goals. First, I venture to show that some insights from hermeneutic philosophy pertaining to the process of interpretation may be rendered clearer and more explicit with the use of contemporary logical tools. Second, I attempt to construct an analytic theory of legal interpretation (and interpretation in general) and posit that such a framework forces one to take advantage of the criterion of coherence. Finally, I claim that interpretation only plays an auxiliary role in legal reasoning.
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.
On the Incoherence of Legal Language to the General Public
International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique, 2011
I will suggest, in this article, a possible explanation of the fact that legal language appears incoherent to the general public. I will present one legal text (an indictment), explaining why it appears incoherent to legal laypersons. I will argue that the traits making this particular text appear incoherent are, first, that a specialized legal meaning is conveyed implicitly and, second, that there are no keywords that could direct laypersons to the knowledge making this meaning obvious to legalists. I will conclude that any legal text having these traits is likely to appear incoherent to the general public and suggest that the traits making my example appear incoherent might be rather common among the various texts of the various legal systems. On this suggestion there is no need to assume any causal relation between lawyers' social interests and the apparent incoherence of legal language as it entails that this incoherence is inevitable. (I will argue that it is a result of the facts that legal language is ordinary language used, in the ordinary way, in the special context of the legal discourse.)
Identification of Legal Content, Legal Nihilism and Propriety of Methods of Interpretation
How do we ensure agents formulating legal statements are not systematically in error? In this paper I assume that the success of legal statements follows from the fact that propositions expressed by legal statements adequately represent legal reality. I argue that the content of legal statements hinges implicetly on the sources of law and methods in which we attribute meaning to these sources. In this regard, I identify the primary obstacle to the success of actions that consist of asserting legal statements as a systematic failure to refer to the proper method of interpretation by the agents formulating these statements. The paper explores several solutions to this challenge, focusing on the solution explaining the success in referring to the proper method of interpretation in virtue of meta-interpretive considerations. Subsequently, the paper discusses a challenge to this solution following from the claim that there are many different theories of meta-interpretation, and there is no fact (neither natural, nor conventional or intentional, anchored in the collective consciousness of society), determining that one of them is more accurate than the other ones. Given all the intricacies, this study focuses on exploring a coherent framework for understanding how different interpretive methods and meta-interpretative theories can be evaluated and applied in legal practice. It seeks to articulate a model that accommodates the diversity of interpretations while striving for a reasoned consensus on how legal texts should be understood and applied.
Semantic, Interpretive, and Conceptual Theories of Law
Suri: Journal of the Philosophical Association of the Philippines, 2021
A general jurisprudential theory explains the essential features of law. The objective of this paper is to provide a comparison of three kinds of jurisprudential theories that have dominated legal philosophy in the last seventy years. First, there are semantic theories that seek to understand the nature of law by digging out shared linguistic criteria that designate the correct use of legal terms. Second, there are interpretive theories that take the perspective of the judge in constructing the most moral interpretation the law to determine what it "really" says on a case. And third, there are conceptual theories which explicate the logical presuppositions, implications, and concepts that underlie legal phenomena and reveal more than what is made obvious by language. This paper shall also defend Legal Positivism-the view that law has social foundations-against Ronald Dworkin's objection known as the "semantic sting", which claims that positivists are unable to account for the existence of deep controversy in legal practice by virtue of allegedly treating law as a trivial linguistic enterprise. It shall argue, alternatively, that deep controversy occurs because law is an "essentially contested concept", which in turn occurs because law is a complex social institution.
The Legal Mind. A New Introduction to Legal Epistemology
Cambridge University Press, 2020
How does a lawyer think? Does legal intuition exist? Do lawyers need imagination? Why is legal language so abstract? It is no longer possible to answer these questions by applying philosophical analysis alone. Recent advances in the cognitive sciences have reshaped our conceptions of the human mental faculties and the tools we use to solve problems. A new picture of the functioning of the legal mind is emerging. In The Legal Mind, Bartosz Brożek uses philosophical arguments and insight from the cognitive sciences to depict legal thinking as a close cooperation between three cognitive mechanisms - intuition, imagination, and language - and addresses the question of how to efficiently use these mental tools. This novel and provocative approach provides a fresh perspective on legal thinking and gives rise to important questions pertaining to the limits of legal interpretation and rationality in the law.