Legal and Interpretation - A Collection of Philosophical Essays on Law

Author: Ma Mo
Publisher:
Publish Date: 2006-12-01
Features: In 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, in the past decade, much legal theory has been constructed around the concept of interpretation. However, a very important point is that interpretation is a grander paradigm: it is not just a topic of interest to legal philosophers, but also, in the view of some influential philosophers, a general method, a meta-theory of legal theory. For example, Ronald Dworkin proposed the interpretive method of jurisprudence 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?" as well as between the first two questions and the moral question: "What should law be?" Dworkin's recent legal interpretation theory 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 must be interpreted by participants (participants) using very similar methods; theorists and practitioners (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.
In 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, in the past decade, much legal theory has been constructed around the concept of interpretation. However, a very important point is that interpretation is a grander paradigm: it is not just a topic of interest to legal philosophers, but also, in the view of some influential philosophers, a general method, a meta-theory of legal theory. For example, Ronald Dworkin proposed the interpretive method of jurisprudence 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?" as well as between the first two questions and the moral question: "What should law be?" Dworkin's recent legal interpretation theory 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 must be interpreted by participants (participants) using very similar methods; theorists and practitioners (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 points of contention 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 Dworkin's interpretive methodological turn. 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 wish to understand.
Interpretation is not just 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 there are interesting similarities between these two disciplines. The scope and validity of this similarity are subjects of debate, and several of these debates 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 require, a general theory of interpretation. Most contributors to this collection seem to acknowledge that the concepts of interpretation and meaning are very closely linked. Interpretation is primarily an explanation of the meaning of the object of interpretation. However, this common starting point merely 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 about the possibility of knowledge in this field—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, particularly to adjudication theory.
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 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 implications for the legitimacy of judgment. 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 statutory law interpretations? Is interpretation fundamentally different from creation? If not, are judges authorized to create law?
This moral and political concern has always been part of jurisprudence. 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 debate and controversy, the analogy between law and literature has provided legal philosophers with new insights into these traditional issues. Not all themes about law and interpretation are new; the role of legislative purpose in statutory law interpretation is one of the jurisprudential issues that have recurred across generations. Some contributors to this book follow this line of argument, and naturally, they have reached different conclusions. However, regarding the view that the role of legislative purpose in statutory law interpretation is closely related to an appropriate theory of legal authority, they are more or less in agreement. 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 contentious relationship 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 reflects on a major issue 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 further thought and research.