Legal interpretation

The present paper started as a commentary on Giorgio Pino’s article presented in the II Lisbon Meeting on Legal Theory on Legal Interpretation and Scientific Knowledge, but soon gained independence. Nevertheless, in addition to the issues mentioned, the two main ideas he presents — that legal interpretation is not a scientific operation and that legal knowledge cannot be considered a kind of science, and, consequently, “politics” is a much more appropriate notion to resort to  — are also addressed.
For this endeavour, firstly, I lay out a conceptual framework of law and legal science — a soft normativist model — which will allow me to explain my options regarding the subject of legal interpretation and therefore avoid a “dialogue of the deaf”. Secondly, I outline the basis of my general theory of legal interpretation, in which I will address questions such as: what do we mean by legal interpretation? What is its object and is law hopelessly indeterminate? Who are the subjects of interpretation? If there are different interpretative moments, and how do we interpret? This last aspect is decisive because, unlike what is usually argued, interpretation is a norm-guided activity by natural language and interpretative norms. Thirdly, I try to answer the question regarding the scientificity of legal knowledge, addressing questions such as the possibility of obtaining legal knowledge — is there any determination and objectivity? — and the importance of the distinction between clear and hard cases. I finish by arguing that there is no doubt that interpretation can be to some extent a scientific activity.

Sumário: Introdução: A pré-história constitucional brasileira. Parte I: A nova interpretação constitucional. I. Tradição e modernidades: uma nota explicativa; II. Póspositivismo e a ascensão dos princípios; III. Princípios e regras, ainda uma vez; IV. Ponderação de interesses, valores e normas; V. Teoria da argumentação. Parte II: Princípios constitucionais. I. Princípios instrumentais de interpretação constitucional; II.

Assessing a year's worth of debate over the 2009 Supreme Court decision in Ashcroft v. Iqbal, this Article provides a novel explanation for the decision and presents it as radical indeed, but in a way previously unremarked by commentators. The sharp divisions in the responses to Iqbal have masked a deeper consensus and have blocked wide awareness of the decision's constructive potential for diverse interest groups. This consensus is based on a simplified account of the ideal function of pleading in our system of civil litigation, one that first took hold in the early twentieth century. What unsettles many observers about Iqbal is its suggestion that district court judges must interpret a civil complaint in order to decide whether it states a claim. As this Article explains, however, pleading scrutiny always has involved interpretation; if we find that suggestion troubling, it is only because the vocabulary we have long used to discuss the role and treatment of civil pleadings represses this fact. The Article describes the ways this vocabulary has shaped the debate over Iqbal and the contingent historical reasons for its dominance. Looking forward, it shows how Iqbal makes possible a new agenda for procedural scholarship that draws from work on other types of legal interpretation, and it suggests some of the specific ways in which this perspective can guide implementation of Iqbal and clarification of its requirements.

The article presents Merkl’s main contributions to Kelsen’s pure theory of Law. The employed method consists in the bibliographical research of Merkl’s and Kelsen’s writings as well as the relevant literature on the subjects covered. The reach of Merkl’s influence to Kelsen’s legal theory is highlighted through an analysis and comparison of Merkl’s with Kelsen’s writings. It is pointed out that Merkl’s influence on Kelsen is not restricted to the doctrine of the hierarchical structure, since it also comprises the discussions on lex posterior, error-calculus/alternative empowerment and legal interpretation.

El autor explica sistemática y críticamente la visión de Francesco Viola sobre el derecho y su cognoscibilidad. Ambos puntos son, dada la inusual perspectiva de Viola, inseparables, pues, para Viola, el significado focal de diritto es una práctica social constituida por los actos de interpretación que sus participantes hacen de la misma, al reconocerla como valor que se debe seguir. La conclusión de este estudio es que, sin perjuicio de ciertas objeciones que se le deben hacer a Viola –a saber, la incoherencia de su pensamiento, por decirse iusnaturalista a la vez que defiende tesis cercanas al relativismo–, su comprensión del razonamiento práctico como prudencia y la necesidad del casuismo como método jurídico son auténticas contribuciones al debate sobre la ley natural.

The United Nations Commission on the Limits of the Continental Shelf is expected to play an essential role in delineating the rights of the Arctic states to seabed resources in the Arctic Ocean. In this article, the authors look to the effect of scientific discourse on Commission authority. The authors argue that in addition to the conferral of its authority by the United Nations Convention on the Law of the Sea, the Commission draws its authority in the Arctic from the way its regulatory frameworks, aimed at containing or closing off disputes about jurisdiction and sovereign rights, correlate with discursive practices used by transnational networks to reach scientific agreement.

This article deals with the implications of the widespread practice of use of legal databases in Polish judicial practice. Apart from the undeniable positive effects of development of an electronic civilization, the article deals with the negative effects of use of databases. This is because a conflict arises between the possibilities offered by the latest technology in the form of easy access to legal texts, commentaries and thousands of rulings, and the unique historical experience of the judiciary in a former communist country, methods of legal interpretation sustained by legal positivism, and domination by a syllogistic model for application of the law, resulting in dysfunction of legal databases. A kind of “hybrid interpretation of law” is formed, which is a combination of a legacy, the effects of transformation of the economy and the system, as well as the new rules of law, on the one hand, and the ideology of bound decisions of judges on the other. The nature of the “hybrid interpretation of law” is the infinite scope for citing judicial rulings and commentaries available in the databases without taking a broader theoretical view – without supporting arguments, and so the citing of a ruling has become the basis for adjudication. The question of whether the possibilities that electronic databases offer will cause interpretation of this kind to turn into a new form of legal rhetoric, or whether it will remain merely  a means of adaptation of the discretionary power of judges to legal positivism doctrine, and thus the sophism of the period of transformation, remains an open one.

A contemporary phenomenon – multiplicity of authentic sources of law in different languages – complicates the process of statutory interpretation. In multilingual jurisdictions, problems arise when a literal interpretation of authentic versions of the law leads to inconsistent outcomes. Jurisdictions resolve such inconsistency in different ways. This article identifies converging trends and diverging practices in multilingual interpretation by comparing various jurisdictions and explains the phenomena by placing the jurisdictions in their social, historical and political contexts. I will then attempt to sketch a typology of legal multilingualism and analyse its significance to interpretation theories. I conclude that legal multilingualism has caused a shift in interpretation dynamics and fuelled a conceptualisation of the law that is distant from the text that formulates it, forcing one to rethink the relationship between language and the law.

The central issue of this paper concerns the discretion of judges in the application of the law, discretion that has expanded enormously, since judges are engaged in the direct application of principles drawn from the constitution or even - at times - from other legal orders altogether. Every legal system has its own methods of selecting and instituting judges, but of no system can it be said that they enjoy full democratic legitimacy and may be free to create law at will. Both in the US and in continental Europe many perceive the need to find some strategies that might bring the interpretative discretion under control, seeking suggestions sometimes in the theory of legal sources, sometimes in the theory of legal interpretation. The point of this paper is that no answer can be found because we are asking the wrong questions.
In the first part, I make use of some hints provided by epistemological reflections of quantum physics theorists, above all Heisenberg. The critical perspective is that of “ontological materialism”, i.e. the idea that in the process of legal interpretation and application, the interpreter is dealing with a “thing” that exists independent of his/her intervention. In the second part, I attempt to suggest a possible solution to the impasse, exploring the meaning of the institutional dimension of legal interpretation and application.

"This article discusses a rare instance of the highest national courts explicitly addressing traffic signs in their judgments or decisions. It critically examines the standpoint expressed by the Polish Constitutional Tribunal and the Supreme Court, according to which the basic traffic sign categories in Poland—obligatory, prohibitory, informative and warning—are not separable (not disjunctive) [e.g. prima facie non-normative signs (informative or warning) can also be normative (obligatory or prohibitory)]. These courts formulated this idea when addressing the legal question concerning the applicability of legal provision penalizing failure to comply with a traffic sign to parking a car without paying a fee in an area marked by an informative sign that indicates the need to charge a fee for parking. The article analyses and criticizes the relevant standpoint of the Polish Constitutional Tribunal and the Supreme Court. It shows how many negative consequences can result from frivolous treatment and neglect of traffic signs. It also reconstructs some possible practical recommendations concerning not only traffic signs but also visualizations of legal rules in general."

Can we dispense with lawyers as intermediaries between the law and its subjects? Can laypeople have direct access to the law? The Plain English Movement (PEM) has long promoted the use of plain language in legal writing as the way to demystify the law, and many governments and private corporations have expended significant resources on drafting legislation and legal documents in plain language. This article argues that the PEM has exaggerated the capacity of plain language to render the law intelligible to the non-lawyer, obscuring the deeper question of legal complexity by focusing solely on language and style. Using the law effectively requires expertise that goes far beyond understanding the meaning of the words used to communicate it: certain complex aspects of the law cannot be eliminated by mere simplification of language, and this article demonstrates that other specialized skills are required over and above the ability to penetrate technical language. The paradigmatic illustration of the need for such skills is litigation.

Much controversy has emerged on the demarcation between legal positiv-ism and non-legal positivism with some authors calling for a ban on the-as they see it-nonsensical labelling of legal philosophical debates. We agree with these critics; simplistic labelling cannot replace the work of sophisticated and sound argumenta-tion. In this paper we do not use the term 'legal positivism' as a simplistic label but identify a specific position which we consider to be the most appealing and plausible view on legal positivism. This is the view advocated by Gardner in his paper 'Legal Positivism: 5 1/2 Myths' (Gardner 2001, 199), where he carefully scrutinises the most convincing and unifying postulates of legal positivism, which he calls "the thin view". The study shows that this thin view presupposes an empirical conception of action that is untenable and implausible since it makes acts of engagement with the law unintelligible to an observer of such acts.

In this paper I'm primarily concerned with framing the role of precedents in terms of reasons that they can give to judges in various legal systems. The main purpose of the paper is to identify the ways in which precedents can be authoritative in judicial reasoning. First, I'll explain the distinction between two kinds of precedents - precedents of solution and precedents of interpretation. Second, I'll identify the ways in which both precedents of solution and precedents of interpretation affect the reasoning of future courts, and focus on the cases in which this affection can be considered practically and epistemically authoritative. Finally, I'll consider the conditions under which it can be epistemically justified to treat precedents as authoritative, with a focus on the possibility of justifying the epistemic authority of interpretative precedents.

By designating defence of individual rights in terms of a higher goal,  "to anchor the values of the State of Israel as a Jewish and Democratic State" the legislator created the basis for a weakening of the Supreme Court and of the defence of human rights. The analysis includes presentation of interpretive strategies adopted by SC Justices that try to overcome the problem created by the problematic wording of this legislation.

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Legal philosophers distinguish between a static and a dynamic interpretation of law. The former assumes that the meaning of the words used in a legal text is set at the moment of its enactment and does not change with time. The latter allows the interpreters to update the meaning and apply a contemporary understanding to the text. The dispute between these competing theories has significant ramifications for social and political life. To take an example, depending on the approach, the term “cruel punishment” used in the US Constitution will be given an 18th century meaning or a contemporary one.

The philosophy of language seems to provide greater support to the static approach to legal interpretation. Within this approach the lawmaker is perceived as a speaker and legal texts are interpreted as utterances. As a consequence, interpretation is a quest for the speaker/lawmaker’s intention or the public meaning that prevailed at the time of enactment.  Neither the intention nor the public meaning are considered to have changed in time.

In this paper I argue that the philosophy of language provides the dynamic approach with an equally robust support as the static one. This support comes from an externalist perspective in semantics, rooted in philosophical pragmatism and supported by Ruth Millikan’s concept of meaning as proper function. Grounding the dynamic approach in a well-founded linguistic philosophy rises to the challenge presented by the originalists’ declaration that “it takes a theory to beat a theory”.

Camayd-Freixas, Erik. “Court Interpreter Ethics and the Role of Professional Organizations.” Christina Schäffner, Krzysztof Kredens, and Ivonne Fowler, eds. Interpreting in a Changing Landscape: Selected Papers from Critical Link 6. Amsterdam: John Benjamins, 2013. 15-30.

The changing landscape in interpreting includes a recent trend toward criminalizing unauthorized immigration, giving rise to a procedurally and ethically ambiguous area of the law: " crimmigration. " Its contradictions in terms of constitutional, civil, and human rights came to the fore in the 2008 Postville, Iowa immigration raid and mass felony prosecutions, a landmark case that challenged interpreter codes of ethics and the role of professional organizations in responding to such challenges. This paper examines both the intrinsic and interpretive limitations of existing ethical codes through a historical analysis of their development in relation to the main traditions in ethical theory – deontology, consequentialism, moral sentiments, and virtue ethics – and using Postville as a practical case study. Recommendations are made for an in-depth revision of interpreter codes and the proactive leadership role of professional organizations, proposing as model the interpreter code of ethics of the Massachusetts Trial Courts.

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.

It has long been noticed that there is no predetermined meaning of legal terms. Rather, meaning depends on the context and the interpreter (Engberg in Brook J Int Law 29:1135, 2003. https ://brook lynwo rks.brook law.edu/bjil/vol29 /iss3/6). While this assertion holds true for both unilingual and multilingual legal environments, the Court of Justice of the European Union (hereinafter: CJEU) openly acknowl-edges it, by stating that no legal consequences can be based on the terminology used. Accordingly, by virtue of the principle of equal authenticity, when interpreting EU law courts cannot rely on a single language version. Adjudicating legal disputes involving linguistic matters in a multilingual environment-i.e. cases of discrepancies between different language versions of an EU legislative text-the CJEU has been given a fascinating role insofar as its interpretative moves include linguistic compar-ison, which in turn bears ramifications on uniformity and equal authenticity, as well as on effectiveness of EU law. With a view to unmasking the nature of the linguistic comparison carried out by the CJEU, this study examines settled case law, asking the following questions: What are the central moves of linguistic comparison? What role does it play in the process of CJEU’s decision-making? Has it changed over time?
Keywords Linguistic comparison· CJEU· Multilingualism· Equal authenticity· Legal interpretation

Academic analysis of pronouncements of human rights treaty monitoring bodies has tended to focus on their contribution to the promotion of human rights in domestic jurisdictions, particularly to convey the desire of scholars to see more use of these pronouncements by domestic courts. Comparatively little attention has been paid to the issue of their legal status in light of the supervisory function of human rights monitoring bodies.
The following paper starts with a thorough analysis of a few recent cases by national courts, which commented
on the legal value of the work of these bodies. The paper then challenges two recurring arguments in the legal
scholarship: their assimilation to judicial bodies, and the existence of a procedural obligation on States to consider their views. Next, it focuses on the interpretive weight of the pronouncements of these treaty bodies in international law, and, accordingly, in national jurisdictions. The paper argues that the alleged existence of a general procedural obligation on States to consider the pronouncements of human rights treaty monitoring bodies is controversial, and that their work does not have a specific, or privileged, legal position in defining the ordinary meaning of a treaty. The conclusions point out that supervisory bodies have a specific and important role in the international legal order, different from that of courts, which bears preserving.

The subject of the study is the ideas of classical institutionalists (M. Hauriou and S. Romano) on the role of court and the nature of justice. The methodological basis of the work is the method of interpretation, which is the main one for the study of the legal theories history, and also the method of problem-theoretical reconstruction, as well as general scientific methods of analysis, synthesis, etc. The relevnce of the conducted research is to identify the key elements of Maurice Hauriou and Santi Romano’s ideas on the role and content of justice and their interpretation, taking into account the achievements of modern legal science regarding the different styles (strategies) of judicial interpretation. Maurice Hauriou believes that the basis of the court powers is not the political power, but the sovereignty of the constitutional statute. This makes it possible for courts to perform the function of deterrence (restriction) of other state bodies, the source of power of which is a political sovereignty. For this reason, the French jurist pushes the boundaries of justice wide enough to allow judicial rule-making, which is competitive with the parliament. To a certain extent, this position of Maurice Hauriou may be at the heart of his world view. For example, he puts an «idea» in the foundation of the institution, which eventually becomes the guardian of justice. Santi Romano, on the other hand, seeks to avoid any idealism by remaining in positions close to sociological positivism. Unlike Maurice Hauriou, he creates not a public law theory, but a general legal theory. For this reason, he focuses much more on the content of interpretation as a specific judicial activity than his French teacher. He considers it as a formal logical and essentially cognitive procedure. However, the general context of the pluralistic teaching of Italian jurisprudence makes it possible to take a broader view of the judiciary than that of Maurice Hauriou. Santi Romano also allows the court to have normative competence, but does not consider it part of justice. Despite the fundamental assumption that it is possible for the courts to create norms, neither Santi Romano nor Maurice Hauriou can be considered forerunners or supporters of radical judicial realism, according to which the judge is the only true creator of law, who makes norms in a sovereign and spontaneous manner without looking back at the existing legal order.
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Предметом исследования являются воззрения классических институционалистов М. Ориу и С. Романо на роль суда и природу юстиции. Методологическую базу работы составляет метод интерпретации, являющийся основным для изучения истории правовых учений и охватывающий также метод проблемно-теоретической реконструкции, а также общенаучные методы анализа, синтеза и др. Новизна проведённого исследования заключается в выявлении ключевых элементов воззрений Мориса Ориу и Санти Романо на роль и содержание юстиции, их интерпретация с учётом достижений современной юридической науки в контексте различных стилей (стратегий) судебной интерпретации. Морис Ориу полагает, что основанием полномочий суда является не политическая власть, но суверенитет конституционного статуса. Это делает возможным выполнение судами функции сдерживания (ограничения) иных органов государства, источником власти которых является политический суверенитет. В связи с этим французский правовед достаточно широко раздвигает границы юстиции и вполне допускает судейское нормотворчество, конкурентное парламенту. В определенной мере такая позиция М. Ориу может быть обусловлена «идеалистическими» элементами в основе его мировоззрения. Так, в основание института им кладется «идея», на страже которой в конечном счёте и оказывается юстиция. Санти Романо в свою очередь, напротив, стремится избежать любого идеализма, оставаясь на позициях, близких социологическому позитивизму. В отличие от Мориса Ориу, он создаёт общую правовую теорию, а не теорию публичного права. По этой причине он куда больше своего французского учителя уделяет внимания вопросам содержания толкования как специфической судейской деятельности. Он понимает его как формальную логическую и сущностно когнитивную процедуру. Однако общий контекст плюралистического учения итальянского правоведа делает возможным не менее широкий взгляд на суд, чем у Мориса Ориу. Санти Романо также допускает существование у суда нормотворческой компетенции, однако не считает таковую частью юстиции. Несмотря на принципиальное допущение возможности создания судами норм, ни Санти Романо, ни Морис Ориу не могут рассматриваться как предтечи или сторонники радикального судебного реализма, согласно которому судья - единственный подлинный творец права, суверенно и спонтанно создающий нормы, без оглядки на уже существующий правовой порядок.

For most of the Middle Ages, canon law’s position toward the Jews of Latin Christendom was straightforward: they were to be marginalized, but not expelled. Over the course of the fourteenth and fifteenth centuries, however, jurists began to question whether canon law might indeed require the expulsion of Jews. This question turned on the interpretation of an ecumenical decree, Usurarum voraginem, which had been drafted in response to Christian moneylending, but whose ambiguous phrasing took on new meaning as a result of shifting political dynamics and new trends in canonistic jurisprudence. Ultimately, even a reigning pope would come down in favor of an expansive reading of the decree, rupturing a tradition of papal resistance to Jewish expulsion that had endured for nearly a thousand years. By tracing jurists’ debates over the meaning of the decree alongside the response of secular and ecclesiastical authorities, this paper explores the interaction between legislative intent, legal interpretation, and the expulsion of Jews in the late Middle Ages.

Ronald Dworkin and Duncan Kennedy represent arguably two opposing poles in legal theory. This paper offers a novel frame for reading their respective legal theories which reconceptualizes the traditional way in which they were opposed, and new ways to compare them, to understand their commonalities and their differences.

While Dworkin is taken to be a champion of a theory of rights, he is also associated with a certain theory of interpretation which holds that even in hard cases judges have limited discretion and a right answer to every legal question we might reasonably encounter. Kennedy, in contrast, seems to disagree with Dworkin in every conceivable respect such as the nature of law and legal reasoning, the role of right, the relation of law to its outsides (politics/ideology), thus questioning the objectivity and neutrality of legal reasoning, and he seems to be advocating what could be termed as a “radical indeterminacy” thesis.

The paper attempts reading Dworkin and Kennedy alongside each other, rather than in opposition, and so it deploys two interrelated strategies to establish such frame. One is concerned softening what appear to be rigid opposition through scrutinizing their writings, whereas the other takes stock of the common themes, presuppositions, images of law, and sensibilities that both share either explicitly or implicitly. This double strategy reveals the arguments that are attributed to them and which they themselves deny they are making. To that end, the paper unveils an unacknowledged shift toward phenomenology in legal theory that took place in the last few decades.

This paper looks at transgender identities and the law in the context of marriage in common law jurisdictions. It particularly focuses on the nature and sources of authority over word meaning as well as the role of language and definition in classifying transgender individuals into a legal category.

This article demonstrates the overlooked contribution of the ancient Near East to the development of constitutional law. The legal corpus of Deuteronomy provides a utopian model for the organization of the state, one that enshrines separation of powers and their systematic subordination to a public legal text—the “Torah”—that delineates their jurisdiction while also ensuring their autonomy. This legislation establishes an independent judiciary while bringing even the monarch under the full authority of the law. Deuteronomy’s implicit model for a political constitution is unprecedented in legal history. Two of its cornerstones are fundamental to the modern idea of constitutional government: (1) the clear division of political powers into separate spheres of authority; and (2) the subordination of each branch to the authority of the law. This legislation was so utopian in its own time that it seems never to have been implemented; instead, idealism rapidly yielded to political pragmatism. Nonetheless, Deuteronomy’s draft constitution provides an important corrective to standard accounts of constitutional legal history.

Keywords:
Constitutional theory; rule of law; separation of powers; Deut 16:18-18:22; Laws of public officials; Law of the king; independence of the judiciary; Deut 17:14-20; Ämtergesetze; Verfassungstheorie; Torah monarchy; Sophocles Antigone law; Herodotus Demaratus; Greek kingship; Mishnah King; mishnah Aboth 1:1; American constitution; Josephus πολιτεία [politeia]; origin of judicial system; Hammurabi; founding myth; independent judiciary.

The so-called conversational model claims that legal interpretation does not significantly differ from ordinary understanding: both are inferential processes complying with a pattern that can be traced back to Paul Grice’s thesis. This essay seeks to criticize such a claim, showing that the so-called legislative intent is not able to play the role that speaker’s intention plays in ordinary understanding and the Gricean thesis.

The aim of this paper is to compare different conceptions of the role of (normative) coherence in the legal field. More precisely, it aims to deepen Neil MacCormick's theory of legal reasoning, in which coherence is essentially considered an interpretative tool, and Ronald Dworkin's legal theory, in which coherence occupies a more crucial place. The main results of this paper can be summarized in two points. A) For Dworkin, coherence is not just an interpretative standard but constitutes the hard core of his theory of law. B) As a consequence of A, Dworkin's reflections on coherence (as an interpretative standard) cannot be separated from his theory of law grounded on the concept of integrity.

When a judge follows the letter of the law, her judgment may be considered blinkered by the man in the street. Legal professionals, however, would classify the judgment as formalistic. From a theoretical perspective, formalistic decision-making limits the number of premises on which a judge may base a verdict. It asks the judge to focus on the literal meaning of the legal text and to disregard other interpretative premises, like the purpose or function of the law, legislative history or – in civil law jurisdictions – previous court decisions.

Formalism as an art of limiting judicial choices is perceived by many as fully consistent with the rule of law. It seems to both allow the curtailment of interpretive discretion and to ensure fidelity to the will of the lawmaker. This contrasts with an all-things-considered approach, where the premises for judicial decision-making seem unlimited, discretion encouraged, and the will of the lawmaker ignored.

In this paper I show that the apparent compatibility between formalism and the rule of law is based on a particular assumption as to the nature of legal language: that this language is criterial in the sense that in order to understand it, one needs to rely on dictionary definitions understood as sets of criteria. This assumption is misguided, and its flaws are revealed by theoretical advances in the contemporary philosophy of language. Specifically, semantic externalism demonstrates that the meaning of language cannot be discovered merely by reading dictionaries; rather, it requires the investigation of the linguistic practices of a particular communicative community, and an insight into the history and function of individual legal terms.

Because the nature of legal language is different from that assumed by the formalists, the compatibility between formalism and the rule of law collapses. With such a distorted perspective of the characteristics of legal language, formalism cannot ensure fidelity to it. This paper shows that judicial decisions based on applying definitions are very often surprising to the law’s addressees; this contradicts one of the main tenets of the rule of law, namely, the predictability of court verdicts. As a consequence, the rule of law requires a different, moderately non-formalistic approach to legal interpretation. Within this approach, judges can make decisions based on a broader scope of interpretive premises and by doing so ensure a better level of predictability.​

""The study is focused on analysing formalism which is a strategy of applying laws by stressing the formal features of the law, even if the consequences of the strategy like that are difficult to accept in light of legal principles and the general requirement of equity. Contrary to the common view presented in the legal literature, the study sets out arguments that the formalism is neither justified in the tradition of legal positivism, neither in the idea of the rule of law. In particular it is not true that formalism secures stability and predictability of laws application. On the other hand, a non-formalistic approach to applying laws, consisting in a simultaneous application of strict rules and general principles and in acknowledging the purpose and the function of the law as important factors, allows for realising the values that are traditionally linked with legal positivism. That non-formalistic approach to applying laws, called in the study 'interpretative holism', was supported by a wide use of contemporary philosophy of language, in particular the Kripke-Putnam semantics and the findings of the contemporary philosophy of law and legal theory.

Praca jest poświęcona analizie zjawiska formalizmu, które jest strategią stosowania prawa, podlegająca na podkreśleniu wagi formalnych cech prawa, nawet jeśli strategia taka prowadzi do rezultatów trudnych do zaakceptowania z punktu widzenia zasad prawa albo ogólnych wymogów słuszności. Przeciwnie do dotychczasowych stanowisk reprezentowanych w literaturze, w pracy przedstawione są argumenty, że formalistyczne podejście do stosowania prawa nie ma uzasadnienia, ani w koncepcji pozytywizmu prawniczego, ani w koncepcji rządów prawa. Z drugiej strony nieformalistyczne podejście do stosowania prawa, które polega głównie na współstosowaniu reguł i zasad oraz na uwzględnianiu celu i funkcji prawa,
pozwala na realizację wartości tradycyjnie przypisywanych koncepcji pozytywizmu prawniczego. Ta nieformalistyczna strategia stosowania prawa, nazywana w pracy holizmem interpretacyjnym, została w pracy uzasadniona poprzez szerokie wykorzystanie współczesnej filozofii języka, w szczególności tzw. semantyki Kripkego-Putnama oraz współczesnego dorobku polskiej i zagranicznej teorii i filozofii prawa.""

This book provides a history of legal thinking and reasoning. It focuses on the tools, methods and procedures to interpret legal texts. The book analyses 10 consecutive models : rhetorical; biblical-talmudic; patristic; scholastic; geometrical; philological-historical; sociological; economical; normativist-positivist and pragmatic (700 pages).

The interpretation and the indirect reporting of a speaker’s communicative intentions lie at the crossroad between pragmatics, argumentation theory, and forensic linguistics. Since the leading case Masson v. New Yorker Magazine, Inc., in the United States the legal problem of determining the truth of a quotation is essentially equated with the correctness of its indirect reporting, i.e. the representation of the speaker’s intentions. For this reason, indirect reports are treated as interpretations of what the speaker intends to communicate. Theoretical considerations, aimed at establishing the pragmatic meaning of an utterance and differentiating between presumptive and non-presumptive interpretation, are thus interwoven with the practical legal need of distinguishing a correct indirect report from an indirect one or a misquotation. An incorrect report or a misquotation has the dialectical effect of attributing to the misquoted party commitments that he never held, which the latter needs to rebut. This shifting of the burden of persuasion can be increased by using strategically the conflict between the presumptive interpretation of an utterance and the non-presumptive one, i.e. the different types of pragmatic ambiguity. When an interpreter is confronted with an utterance taken out of its dialogical context, his interpretative process is not guided by the actual context or intention, but rather the most frequent or prototypical dialogical setting or the most typical individual purpose that it could have served to achieve. This presumptive reconstruction can be used to provide a prima facie case that the other party needs to reject. The stronger the interpretative presumptions a speaker needs to rebut, the more effective the misquotation strategy. The conflict between the systematic and the presumptive process of interpretation can be represented as an argumentative mechanism of reconstruction of the individual intention, which allows one to assess the reasonableness of the interpretative reasoning.

This essay challenges the idea according to which, in legal interpretation, a well-defined literal meaning is always (or in the most of cases) detectable. I will claim that this idea is untenable and, at any rate, when lawyers talk of literal meaning, they rarely refer to a totally a-contextual meaning; rather they refer to a meaning which is determined by contextual elements too, and is assumed to be unique and well determined precisely because of the determinacy and uniqueness of these elements. I will argue that even this idea is misleading and try to support an alternative view of meaning.

El artículo se centra en una sólida e importante orientación adoptada por la Corte constitucional italiana
desde comienzos de los años 90: la llamada doctrina de la interpretación conforme a la Constitución, que
fuerza a los jueces a intentar conciliar la ley y la Carta fundamental antes de plantear cuestiones de
legitimidad constitucional, declarando inadmisible o manifiestamente infundada la cuestión propuesta
cuando exista una solución interpretativa.
El trabajo indaga el fundamento de este riguroso deber descartando que se trate de un efecto colateral de la
estructura jerárquica del sistema de las fuentes y relacionándolo, en cambio, con las teorías hermenéuticas
de un derecho por principios como lo es el constitucional.
Así mismo, se analizan las técnicas de decisión desarrolladas por el órgano constitucional de control para
inducir a los jueces a su cumplimiento, evitando la innecesaria activación del control sobre las leyes.
También se ponen de manifiesto los perfiles críticos en el plano teórico de estas técnicas y sus
inconvenientes prácticos.
Finalmente se examina la relación que se instaura con el vértice de la magistratura ordinaria, la Corte di
Cassazione, que en el ordenamiento italiano tiene el deber de velar por la correcta interpretación de las
leyes, poniendo en evidencia la “competencia” que caracteriza la postura de los dos órganos en el plano de
la actividad interpretativa, la cual conduce tanto a momentos de agudo conflicto entre ellos como de
estrecha y armónica colaboración./
The article focuses on an important and wide case law followed by the Italian Constitutional Court from
the beginning of the nineties: the so called doctrine of the interpretation in conformity with the
Constitution, in according to which constitutional judges aim at inducing common judges to try to
harmonize statutes with the Constitution before raising questions of constitutional review, declaring them
consequently “inadmissible” or “manifestly groundless”, when an interpretative solution exists.
The work investigates the juridical basis of such a constrictive obligation, excluding that it could be
regarded as a collateral effect of the hierarchical structure which rules the system of the sources of law and
connecting it, on the contrary, with hermeneutical theories involved in a law made of principles, as the
constitutional law is.
Besides, it analyzes the techniques of decision elaborated by the Constitutional Court in order to propel
common judges to observe the aforementioned obligation, avoiding an useless activation of the
constitutional control. It also puts into evidence both critical aspects on a theoretical point of view and
practical drawbacks of these techniques.
Finally the work explores the resulting relationship with the ordinary jurisdictional authority’s summit,
the Corte di Cassazione, which is competent to ensure the right interpretation of the law in Italian
juridical system, pointing out the “concurring” role of the two judicial institutions in the interpretative
activity, which produces episodes of acute contrast and episodes of close harmonic cooperation as well.

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The speech-act approach to rules is commonplace in both Anglo-American and continental traditions of legal philosophy. Despite its pervasiveness, I argue in this paper that the approach is misguided and therefore intrinsically flawed.
My critique identifies how speech-act theory provides an inadequate theoretical framework for the analysis of written discourse, a case in point being legal text. Two main misconceptions resulting from this misguided approach are the fallacy of synchronicity and the fallacy of a-discursivity. The former consists of treating legal rules as if they were uttered and received in the same context, the latter consists of treating legal rules as relatively short, isolated sentences. Among the consequences of these fallacies are an excessive focus on the lawmakers’ semantic intentions and the neglect of the semantic and pragmatic complexity of rules as sets of utterances (discourses).
To redress these flaws, I propose analysing legal rules through the prism of complex text-acts. My paper presents the consequences of this revised approach for legal interpretation, supporting Joseph Raz's idea of minimal legislative intent.

Este estudio intenta responder a la siguiente pregunta: ¿cómo introduce John M. Finnis en la teoría ius-naturalista del derecho, la idea hartiana y raziana de que el derecho proporciona razones excluyentes para la ac-ción? En la búsqueda de una respuesta se abordarán los siguientes ejes temáticos: (a) el concepto genérico de razón para actuar, y su distinción de otras motivaciones posibles para la acción; (b) los rasgos propios de la razón jurídica para obrar, que la diferencian de otro tipo de razones para la acción; (c) los conceptos correlativos de autoridad y obligación en refe-rencia al derecho. En este análisis se señalarán algunas fortalezas en la propuesta de Finnis con respecto a sus predecesores de la tradición posi-tivista, pero también algunas debilidades descriptivas e inconsistencias teóricas. Estas dificultades se presumen ligadas a la dificultad de Finnis en su intento de conciliar el aparato conceptual heredado de la tradición iuspositivista, con el esquema conceptual heredado de la tradición ius-naturalista y, más ampliamente, con la epistemología práctica tomista que recoge de esta tradición.

Ripropongo qui il draft di uno studio risalente, che discute però di problemi e questioni che tornano di attualità nel campo dell'interpretazione del diritto e della sua evoluzione nazionale e trasnazionale, con vari riferimenti alle diverse tecniche interpretative in Civil Law e in Common Law.