Legal and Interpretation

Author: (USA) Ma Mo
Publisher:
Publish Date: 2006-12-01
Features: Over the past fifteen years, interpretation has become one of the main knowledge paradigms for legal scholars. Just as the interest in rules in the 1960s and the interest in principles in the 1970s, many constructions of legal theory in the past decade have revolved around the concept of interpretation. However, a very important point is that interpretation is a more grandiose paradigm: it is not just a topic of interest to legal philosophers, but in the view of some influential philosophers, interpretation is also a general method, a meta-theory of legal theory. For example, Ronald Dworkin proposed an interpretive method in legal theory to oppose the traditional analytical method. The latter has a core assumption that there is a clear distinction between the philosophical question: "What is law?" and the legal question: "What is the law regarding this or that issue?" and between the former two questions and the moral question: "What should law be?" Dworkin's recent theory of legal interpretation challenges these conceptual distinctions. He argues that the concept of interpreting law is necessarily closely related to the thinking of what the law is for solving problems. In his view, law is not just an interpretive undertaking, but it must always be interpreted by participants using very similar methods; theorists and practitioners are engaged in the same reasoning, namely, trying to impose the best interpretation on the practices they face. For this reason, the concept of law and the justification of its specific requirements can no longer be seen as two separate issues. Over the past fifteen years, interpretation has become one of the main knowledge paradigms for legal scholars. Just as the interest in rules in the 1960s and the interest in principles in the 1970s, many constructions of legal theory in the past decade have revolved around the concept of interpretation. However, a very important point is that interpretation is a more grandiose paradigm: it is not just a topic of interest to legal philosophers, but in the view of some influential philosophers, interpretation is also a general method, a meta-theory of legal theory. For example, Ronald Dworkin proposed an interpretive method in legal theory to oppose the traditional analytical method. The latter has a core assumption that there is a clear distinction between the philosophical question: "What is law?" and the legal question: "What is the law regarding this or that issue?" and between the former two questions and the moral question: "What should law be?" Dworkin's recent theory of legal interpretation challenges these conceptual distinctions. He argues that the concept of interpreting law is necessarily closely related to the thinking of what the law is for solving problems. In his view, law is not just an interpretive undertaking, but it must always be interpreted by participants using very similar methods; theorists and practitioners are engaged in the same reasoning, namely, trying to impose the best interpretation on the practices they face. For this reason, the concept of law and the justification of its specific requirements can no longer be seen as two separate issues.
Whatever the merits, this methodological development and turn is one of the main topics of debate among the contributors to this book. Dworkin's interpretive theory of law seems to support the anti-positivist stance in legal theory. However, it is interesting to note that some critics who strongly endorse his conclusions firmly oppose his interpretive method, and vice versa. For this reason, some critics who endorse many of H.L.A. Hart's conclusions about the relationship between law and morality benefit greatly from the turn to Dworkin's interpretive methodology. Nevertheless, both camps recognize that interpretation is central to understanding law. After all, the interpretive nature of legal practice is universal, and unless we fully understand what constitutes interpretation, we cannot have a clear picture of the practices we want to understand. Interpretation is not merely a legal concept, or even not a typical legal concept. It also plays an important role in the fields of art and art criticism. This means that there are interesting similarities between these two disciplines. And the scope and validity of this similarity are subjects of debate, some of which are vividly illustrated in this collection. However, there is little doubt that both legal theory and literary theory are interested in the concept of interpretation. Therefore, both disciplines are clearly interested in, and seem to need, a general theory of interpretation. Most contributors to this collection seem to acknowledge that the concepts of interpretation and meaning are very closely related. Interpretation is primarily an explanation of the meaning of the object of interpretation. However, this common starting point only opens the door to disputes about the kinds, core, and scope of meaning. That is, people expect a general theory of interpretation to at least provide answers to the following three types of questions: possible objects of interpretation; the core of interpretation and its normative basis; and epistemological questions, such as what the possibility of knowledge in this field is—such as, are there correct and incorrect interpretations? Is interpretation objective in some sense? These and other general questions about interpretation are of great significance to legal theory, especially to the theory of adjudication. It is well known that people expect judges to interpret specific texts. But what is a text? How do we, and what exactly, determine the object of interpretation here? Assuming we have determined the text, can we consider these texts to impose substantial constraints on their possible interpretations? Do those interpretations have some objective status? What does it mean to say that some interpretation is objectively true (or false)? These general questions about interpretation have important moral and political significance for the legitimacy of adjudication. For example, if texts do not constrain interpretation in some meaningful way, then what is the basis for the legitimacy of such interpretation? How can judges justify their interpretations of statutes? Is interpretation fundamentally different from creation? If not, are judges authorized to create law? This moral and political concern has always been part of legal theory. However, examining these traditional questions from the advantageous perspective of a general theory of interpretation is a relatively recent development. Therefore, despite the potential for controversy and complexity, the analogy between law and literature has provided legal philosophers with new insights into these traditional issues. Not all topics about law and interpretation are new; the role of legislative purpose in statutory interpretation is one of the recurring legal theory questions of each generation. Some contributors to this book follow this line of argument and, needless to say, draw different conclusions. However, they are more or less consistent in the view that the role of legislative purpose in statutory interpretation is closely related to an appropriate theory of legal authority. According to this line of thought, the justification for respecting legislative purpose must stem from considerations of the legitimacy of legal authority. Here again, the close and controversial connection between the concept of interpretation and the concept of law becomes apparent. Therefore, by utilizing recent analyses of authority and combining them with research in the contemporary field of interpretation, the contributors to this book offer fresh and stimulating insights into these ancient debates. The essays in this collection are like the face of Janus; they look both backward and forward. In a sense, the collection looks back at one of the main issues in legal theory over the past fifteen years; at the same time, the contributors also raise some entirely new and challenging issues. Some of these are tentative, while others are more complete and comprehensive, and all require more thought and research.