Abstract
My aim in this paper is arguing for interpretive scepticism from a pragmatics point of view. The argument will develop in four steps. In the first step, I will lay down the conceptual framework I am going to use. In the second step, I will make clear what I consider scepticism and formalism to be. Here, I will contrast scepticism (non-cognitivism) with two varieties of formalism (integral and restricted cognitivism, respectively), and set forth a few criticisms of them. In the third step, I will consider a sophisticated version of restricted cognitivism: the one defended by Andrei Marmor in a series of valuable essays. Marmor makes his case by resorting to philosophy of language. I will argue, however, that philosophy of language, and pragmatics as a substantive part thereof, far from providing support for the restricted form of cognitivism Marmor advocates, suggest contrariwise that it should be abandoned. In the fourth, and last, step, I will lay down the outline of a pragmatic interpretivist theory of judicial interpretation.
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Notes
- 1.
Barberis 2014: 196–204, claims that scepticism and the so-called mixed theory – in my view, a variety of cognitivism which I will consider in a moment – would both provide correct answers, since they would aim at different questions. The mixed theory would provide a true answer to the question: “How is law being in fact applied by judges?” It would be concerned, accordingly, with so-called “concrete interpretation”. Contrariwise, scepticism would provide a true answer to the different question: “How is law being in fact interpreted by jurists and judges?” It would be concerned, consequently, with the interpretation of legal texts apart from their application to individual cases, i.e., with so-called “abstract interpretation”. I suspect that the presumed way out suggested by Barberis depends on a confusion about the notion of “concrete interpretation”, as I shall suggest in the following footnote.
- 2.
Some authors – Guastini 2011: 138–140; Barberis 2014–draw a distinction between abstract interpretation (interpretation in abstracto, “text-oriented interpretation”) and concrete interpretation (“interpretation in concreto”, “fact-oriented interpretation”). Abstract interpretation amounts to translating a source-sentence into an explicit general norm, without paying attention to the application of the norm to individual cases, while paying attention, instead, to overcoming ambiguity problems: that is to say, problems arising from the capability of source-sentences to be translated into a set of alternative (abstract) explicit norms. Concrete interpretation is concerned, contrariwise, with the qualification of individual cases according to previously identified abstract general norms; it focuses on the reference (Bedeutung) of the descriptive expressions featuring in the general norms; it is meant to overcome problems of vagueness or open texture, if any, of the concepts to be used for qualifying cases. I think the notion of concrete interpretation, as it is usually defined, suffers from an ambiguity that must be brought to the fore, in order to get a clearer conceptual apparatus. Indeed it seems worthwhile distinguishing two notions of concrete interpretation. On the first notion, concrete interpretation is a part of the activity of translating a source-sentence into a general norm. This I shall call concrete-interpretation-as-translation. On the second notion, contrariwise, concrete interpretation amounts to qualifying a certain individual fact in terms of a previously identified general norm. This I shall call concrete-interpretation-as-qualification. The output of concrete-interpretation-as-qualification is a qualification sentence: like, for instance, “John Smith’s entering the park on roller-skates is – has the value of, amounts to, counts as – entering the park with a vehicle”. On the contrary, the outcome of concrete-interpretation-as-translation is a norm, the formulation of which incorporates a parenthetic, denotative, definition of the relevant qualifying expression: like, for instance, “No vehicles (automobiles, motorcycles, bicycles, roller-skates, etc.) are allowed into the park”. In a well-designed judicial opinion, the outcome of concrete-interpretation-as-qualification logically depends on the outcome of a corresponding concrete-interpretation-as-translation. To be sure, the judicial process of interpretation-as-translation, broadly conceived, usually has its starting point in the description of an individual case (“John Smith entered the city park on roller-skates”) and in a legal issue arising in its connection (“Did John Smith’s behaviour violate the Mayor’s ordinance ‘No vehicles into the city park’?”). The two notions of concrete-interpretation are precisely useful to emphasize this central aspect of adjudication.
- 3.
From the standpoint of judicial interpretation and integration, the law can in fact be considered as a rhetorical normative system. As a system, to wit, that consists, at any given time, of the totality of the rhetorical consequences of a given set of source-sentences. I have offered a short presentation of this view in Chiassoni 2014.
- 4.
Interpretive discretion as power is the legal power, for a judge, to make interpretive decisions, aimed at the resolution of an individual case at hand. The content of such interpretive decisions depends on the exercise of interpretive discretion as a fact, namely, of a liberty of choice that arises as a de facto feature of adjudication. It is apparently with discretion as fact that Herbert Hart deals in a posthumous, recently published essay. There, after claiming that «discretion occupies an intermediate place between choices dictated by purely personal and momentary whim and those which are made to give effect to clear methods of reaching clear aims or to conform to rules whose application in the particular case is obvious», Hart emphasizes that every discretional decision always consists in the making of a “leap”, for it can never be supported by conclusive reasons: «phrases often used to describe the exercise of discretion, such as “intuition” [and] “recognition of an implicit guiding purpose,” may encourage the illusion that we never reach the point where we have to reconcile conflicting values or choose between them without some more ultimate principle to guide us. I think the suggestion that we never reach the “leap” is just as wrong as a description of discretion as a mere arbitrary choice would be. It seems to me clear that just because there is a point at which we can no longer be guided by principles and at the best can only ask for the confirmation of our judgment by persons who have submitted themselves to a similar discipline before deciding, that we have in discretion the sphere where arguments in favour of one decision or another may be rational without being conclusive» (Hart 1956, 658, 665; see also Hart 1961: 273–276). As it is well known, Ronald Dworkin singles out “weak” from “strong” discretion. The former obtains whenever an official’s decision depends on a «use of judgment» that is «controlled by a standard furnished» by a particular authority: for instance, a sergeant is ordered by the lieutenant to “take his five most experienced men on patrol”. The latter obtains whenever an official’s decision is not «controlled by a standard furnished» by a particular authority, but must nonetheless keep within the limits set by the general standards of «rationality, fairness, and effectiveness»: for instance, a sergeant is simply ordered to “take five men on patrol” (Dworkin 1977: 31–33). Clearly, weak discretion and strong discretion are different not by quality, but by quantity: strong discretion obtains whenever the decision-maker has weaker constraints to abide by. Both notions can be captured by Hart’s notion. On discretion in law, see also: Lifante Vidal 1989; Ruiz Manero 1990: 181–198; Iglesias Vila 1999; Laporta 2007: 207–208 («When the law is indeterminate, when its sentences are defeasible, when cases are hard cases, it shows up in front of us the riddle of judicial discretion»).
- 5.
Suppose, for instance, that the following situation obtains: (i) the interpretive code prescribes to interpret “according to the original legislative intent”; but (ii) competing interpretations are available of what the original legislative intent was, each one pointing to a different way of translating the source-sentence at hand. In that case, the judge will enjoy application discretion in relation of selecting what, all-things-considered, is to be taken as the governing legislative intent. To be sure, application discretion is something that can also be conferred explicitly by some directive of the selected code. Suppose, for instance, an interpretive code contains a default directive like, e.g.: “Whenever no (clear) legislative intent is available, interpret in such a way as to realize justice for the individual case”.
- 6.
Are situations of interpretive discretion judge-dependent or judge-independent? For the reasons that will appear in the following, I am inclined to think that they depend on context, which, in turn, is neither always, nor wholly, waterproof to judicial beliefs, preferences, attitudes and expectations.
- 7.
Sometimes two varieties of scepticism are singled out, according to the role they ascribe to interpretation in the determination of the meaning of source-sentences. Radical scepticism claims that there is really no meaning before interpretation: interpretation creates the meaning of source-sentences. Contrariwise, moderate scepticism claims that source-sentences are always open to a plurality of meanings. There are meanings before interpretation; interpretation, however, necessarily consists in deciding, for any case at hand, which is the (all-things-considered) correct one. See Guastini 2011: 150, 156–159.
- 8.
- 9.
A staunch representative of integral cognitivism is the German jurist Carl Friedrich von Savigny, the founder of the Historical School. For a recent account of his theory of legal interpretation, see, e.g., Chiassoni 2009: ch. IV, § 4.
- 10.
A more complicated version of the argument would take into account the possibility of there being, in any legal system, a (different) objective code like that for each sector of positive law (constitutional law, private law, administrative law, criminal law, etc.). This complication would not alter the gist of the argument.
- 11.
- 12.
Consider, for instance, the literal meaning directive as it is usually found in juristic textbooks and judicial opinions (“Interpret the source-sentences according to their literal meaning”). Does it instruct to take into account the literal meaning at the time the source-sentence was enacted, or, rather, the literal meaning at the time of its application? This is something the directive, as usually understood in our legal cultures, leaves to the interpreters to decide.
- 13.
An example from history may perhaps help. The French jurists of the so-called Exegetical School apparently shared the same principles, which they regarded as evident, about the proper way of interpreting the Civil Code. These were the principle of “respect for the legislature” and the principle of “primacy of the text”. These principles represented the core of the “objective” interpretive code considered as absolutely binding in French XIXth century legal culture. Nonetheless, the two principles, due to their eminent indeterminacy, formed the basis for different, more specific, codes, adopted by individual interpreters. On this point, see e.g. Chiassoni 2009: ch. IV, § 3. Similar considerations hold for those cultures where principles like “literal interpretation and legislative intent”, “systemic interpretation”, “constitution-oriented interpretation”, “respect for the Constitution”, etc. are paramount.
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- 15.
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Marmor 2014: 1 ff.
- 17.
- 18.
Marmor explains the idea of “reasonable uptake”, which corresponds roughly to what in previous essays qualified as “understanding”, in the following terms: «the subjective intentions of the speaker are only partly constitutive of assertive content; speakers can sometimes fail to communicate all that they had intended to. Therefore, the content that is said or asserted by a speech act partly depends on its reasonable uptake. Assertive content, on this view (that I share), must be defined objectively as the kind of content that a reasonable hearer, with full knowledge of the contextual background of the speech, would understand the speaker to have intended to convey, given what the speaker expressed, the relevant contextual knowledge, and the relevant conversational norms that apply» (Marmor 2014: 19).
- 19.
Marmor 2011: 142 «Our ability to understand each other in a communicative context depends on a shared, at least tacit, understanding about the kind of conversation we are engaged in, and the norms governing it. Understandings of this kind are, of course, subject to occasional misunderstandings or deviations of various kinds, in which case, typically some aspect of the communication fails. None of this, however, is a matter of interpretation. From the fact that there is some normative framework governing the kind of conversation one is engaged in, it does not follow that a hearer’s grasp of the communicative content hangs in the air, as it were, until she comes up with an interpretation of the relevant maxims. Maxims are typically common knowledge between speaker and hearer, in no need of interpretation»; pp. 144–145: «Mostly, just like in an ordinary conversation, we hear (or read, actually) what the legal directive says and thereby understand what it requires. In some cases, it is unclear what the law says, and interpretation is called for».
- 20.
- 21.
Marmor 2014: 27, 28 ff., 33: «in the context of statutory law, the gap between semantic and assertive content is much more limited and infrequent compared with ordinary conversation».
- 22.
Marmor 2014: 22 ff., 28 ff., 33–34, 108. In other parts of the book, pragmatic understanding, as part of the reasonable uptake of the full communicative content of a speech act, also concerns the identification of the implicated content of the communication, beyond the assertive content. See, e.g., Marmor 2014: 49 ff. Marmor (2011: 141) makes clear that: «every communicative interaction is guided by some norms that govern the kind of contribution to the conversation that speakers are supposed to make. Without such a normative framework, typically shared by the relevant conversational parties, communication would not be possible».
- 23.
- 24.
- 25.
Marmor 2011: 137; see also pp. 9–10: against «Dworkin’s argument that we can never grasp what the law says without interpretation», so that, given the partly evaluative nature of it, «understanding what the law requires is necessarily dependent on some evaluative considerations», Marmor wishes to argue that Dworkin’s conception «of what it takes to understand a legal directive is based on a misunderstanding of language and linguistic communication […] when linguistic considerations are taken into account in the appropriate ways, we will realize that interpretation becomes the exception, not the standard form of understanding what the law says»; Marmor 2014: 107–109.
- 26.
See, e.g., Marmor 2014: 74.
- 27.
Marmor 2011: 107–108, 138: «When we conduct an ordinary conversation, it is not our experience that every utterance by a speaker is somehow followed by a pause, when the hearer thinks about ways to interpret what has been said. Under the normal circumstance of a conversation, we just hear the utterances and thereby understand what has been said». See also Marmor 2014: 107–109.
- 28.
Marmor 2011: 136: «Philosophy of language is central to an understanding of law for a different reason. Law, as we have seen in previous chapters, consists of authoritative directives. The content of the law is tantamount to the content that is communicated by various legal authorities. Authorities communicate, of course, in a natural language. Therefore, an understanding of how linguistic communication works and, in particular, how much is actually determined by various semantic and pragmatic aspects of language, is central to an understanding of what law is»; Marmor 2014: 1: «Language is to lawyers what a piano is to the pianist: the tool of trade».
- 29.
Marmor 2011: 141.
- 30.
- 31.
Marmor 2014: 19, 20.
- 32.
See, e.g., Marmor 2011: 138–139: «It is a very familiar aspect of natural language that the content communicated by a speaker is often partly determined by certain contextual and normative factors. These contextual and normative determinates of linguistic contents are called the pragmatic aspects of language. In other words, it is a well-recognized fact that semantics and syntax (meaning) are essential vehicles for conveying communicative content, but the content that is actually communicated is often partly determined by various pragmatic factors».
- 33.
Marmor 2011: 105.
- 34.
Marmor 2011: 143.
- 35.
Marmor 2011: 138.
- 36.
Marmor 2005: 97.
- 37.
- 38.
Perhaps, that may be the case with ordinary people, but that’s another story, to be carefully considered.
- 39.
- 40.
- 41.
Marmor 2014: 107–109.
- 42.
Marmor 2011: 150–151.
- 43.
Marmor 2008: 30.
- 44.
- 45.
Marmor 2014: 11–12.
- 46.
First-order maxims do not stay all on the same plane. A maxim like the literal meaning maxim is endowed with interpretive efficiency: it may be used to translate a source-sentence into some explicit norm; contrariwise, the use of, say, the maxim of coherence is to select the outputs of interpretive efficient maxims. But for the present purpose, this issue may be left aside.
- 47.
See Bobbio 1971: 243–249.
- 48.
By way of a thought experiment, I have imagined the maxims of a Gricean code of judicial interpretation in Chiassoni 1999: 95–97.
- 49.
A first version of the present paper was presented at the “Oxford-Girona-Genoa Seminar in Jurisprudence”, Oxford, April 10, 2015. I wish to thank the participants for their queries.
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Chiassoni, P. (2017). The Pragmatics of Scepticism. In: Poggi, F., Capone, A. (eds) Pragmatics and Law. Perspectives in Pragmatics, Philosophy & Psychology, vol 10. Springer, Cham. https://doi.org/10.1007/978-3-319-44601-1_5
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