Adjudication Is Not Interpretation: Some Reservations About the Law-as-Literature Movement (original) (raw)
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Are There Nothing but Texts in the Class - Interpreting the Interpretive Turns in Legal Thought
Chicago Kent Law Review, 2000
CHICAGO-KENT LAW REVIEW rigorously and consciously critical, rather than reformist, of our most basic legal norms, institutions, and adjudicative practices. Gadamer set the direction, tone, and much of the content of our critical contemporary movements in legal thought. This outstanding group of articles in this Symposium on Gadamer's work and the current state of critical legal theory provides an opportunity to assess the influence of Gadamer's ideas in critical legal thought. More specifically, it provides an opportunity to assess, amplify, and then respectfully criticize the "paradigm shift" in critical legal thought that Gadamer's meditations on the nature of interpretive meaning helped to trigger. In large part because of the influence of Hans-Georg Gadamer, critical legal scholars now commonly regard the task of understanding legal texts, and the task of criticizing legal texts as, essentially, interpretive enterprises-rather than (to take just a few possibilities), historical enterprises, adjudicative enterprises, political enterprises, or, for that matter, unambiguously critical enterprises. 4 What legal scholars, legal historians, judges, and legal critics essentially do, according to Gadamer, is interpret-not just analyze, discover, apply, or criticizelegal texts. 5 Consequently, understanding the nature of interpretation-how it is possible, what constrains it, what does not constrain it, what ought to constrain it, what it consists of, what it requires of us, and how it does (or does not) facilitate criticism of law, and if so what sort of criticism, is now a central task-is perhaps the central task-of critical legal scholarship. This quite fundamental shift in the way we think about the work of both understanding and criticizing legal texts is what is generally captured in the provocative phrase "the interpretive turn," '6 at least as that phrase applies to legal scholarship: when used by legal scholars, 24.
The Moral Dilemmas of Court Interpreting
1995
In court interpreting, the law distinguishes between the prescribed activity of what it considers translation -defined as an objective, mechanistic, transparent process in which the interpreter acts as a mere conduit of words -and the proscribed activity of interpretation, which involves interpreters decoding and attempting to convey their understanding of speaker meanings and intentions. This article discusses the practicability of this cut-and-dried legal distinction between translation and interpretation and speculates on the reasons for its existence. An attempt is made to illustrate some of the moral dilemmas that confront court interpreters, and an argument is put forward for a more realist understanding of their role and a major improvement in their professional status; as recognized professionals, court interpreters can more readily assume the latitude they need in order to ensure effective communication in the courtroom.
Interpretation and Legal Theory
Judges should interpret the law, not make it ... Nearly everyone assents to this proposition (or something like it), so why is there controversy? In this essay I examine three grounds or sources of disagreement. First, the concept of interpretation is unclear. Second, there is uncertainty about whether legal interpretation raises special interpretive problems. Third, there is an implicit assumption among legal theorists that cOustitutional interpretation is a specially problematic kind of legal interpretation. My goal is to clarify these and other misconceptions. In Chapter 2 I connect normative theories of adjudication to the concept of interpretation. In Chapters 3 and 4 I develop a conception of interpretation that explains how constitutional interpretation is possible and why it is necessary, thus refuting proponents of the invention and discovery models of adjudication. In Chapters 5 and 6 I develop theories of expression meaning and constitutional interpretation, respectively. Chapters 7 and 8 are critical analyses of the interpretive theories of H.
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.
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
As a matter of history, the term "interpretivism" was current only for a short time in the 1970s and has since been largely replaced by the term "textualism." But "interpretivism" still survives, partly as a matter of rhetoric: one who calls himself an "interpretivist" implies that what distinguishes him from others who see things differently is that he "interprets" the law while they do something else, and presumably something less legitimate. This paper responds to the contention of one self-described interpretivist (Justice Stephen Markman of the Michigan Supreme Court) that interpretivism is a strategy for constitutional interpretation that follows the constitutional text, respects original meanings, establishes known and stable rules in advance of particular cases, and keeps judges within their traditional role. The paper argues that the foregoing goals are regularly in tension with one another. In the rhetoric of judicial polit...
"Same As It Ever Was: Rethinking the Politics of Legal Interpretation."
1989
This article, which places the development of the "law-and-interpretation" or "legal hermeneutics" school of legal scholarship in historical and political context, is meant to serve as an accessible introduction to the literature on legal hermeneutics. The author situates the law-and-interpretation debate in the context of intellectual developments in the humanities and social sciences, and points out some of its empirical and theoretical limitations. While a great deal of the literature on legal hermeneutics either ignores the politics of interpretation or deals with it superficially, claiming it to be outside of the scope of inquiry of those interested in the field of legal study, the author suggests that politics is in fact constitutive of the very act of interpretation.
Interpretation and Institutions
SSRN Electronic Journal, 2002
To evaluate theories of interpretation, it is necessary to focus on institutional considerations-to ask how actual judges would use any proposed approach, and to investigate the possibility that an otherwise appealing approach will have unfortunate dynamic effects on private and public institutions. Notwithstanding this point, blindness to institutional considerations is pervasive. It can be found in the work of early commentators on interpretation, including that of Jeremy Bentham; in the influential work of H.L.A. Hart, Ronald Dworkin, and Henry Hart and Albert Sacks; and in much contemporary writing. This blindness to institutional considerations creates serious problems for the underlying theories. The problems are illustrated with discussions of many disputed issues, including the virtues and vices of formalism; the current debate over whether administrative agencies should have greater interpretive freedom than courts; and the roles of text, philosophy, translation, and tradition in constitutional law. In many cases, an understanding of institutional capacities and dynamic effects should enable diverse people, with different views about ideal legal interpretation, to agree on what actual legal interpretation should entail.