Define a Legal Text

The interpretation of the law is familiar to lawyers, judges and legal theorists. Public and private disputes of paramount importance revolve around questions of interpretation of legal texts. Nevertheless, there is a deep and pervasive controversy over the correct theory or method of interpreting the law. One of the reasons for such controversy is that, perhaps surprisingly, there is no consensus on the more fundamental question of what legal interpretation is – in particular, what is its constituent purpose. Does the interpretation of the law cover, for example, the linguistic meaning of legal texts, the best settlement of disputes or the substantive contribution of legal provisions? Without progress on this fundamental issue, progress cannot be expected in understanding the correct method of interpreting the law. Even more urgently, as is often the case, the relevant members of a legislator have extremely different and often competing attitudes, so what makes a particular intention the collective intention of the group? Even among MPs who vote in favour of the bill, there will usually be major disagreements, for example, over the intended legal effect. (For the sake of simplicity, let`s assume that this depends only on the legal intentions of the legislator, not on his intentions of communication or application.) Judges, lawyers and jurists tend to be pluralistic and rely on many types of sources, methods and methods of reasoning, including, for example, textual analysis, deliberate reasoning, consideration of historical sources, precedent-based thinking, prospective assessment of consequences and appeals to moral values such as fairness, democracy and the rule of law (e.g., Fallon, 1987; Eskridge & Frickey, 1990; Breyer, 2005; see Berman 2018, 1341-42). It is even less likely that Parliament has communicative intentions with respect to most provisions that give rise to controversies of interpretation. Remember that a communicative intention is an intention to communicate a certain message by expressing certain words. Most members of the Legislative Assembly will not have read a typical provision and will not have the technical expertise in laws of any complexity to understand what message should be conveyed to create a particular legal standard or achieve a particular policy objective. (For more recent empirical work suggesting that members of the legislature rarely deal with the details of the legislative text and, even if they did, would not be able to determine whether the text is properly calculated to achieve their legal or political intentions, see Bressman and Gluck 2013; 2014.) Thus, even if the members of the legislature had relevant legal intentions with regard to the provisions at the centre of interpretative disputes, it is an exaggeration to assume corresponding communicative intentions on their part. If, on the other hand, the interpretation of the law is intended to add a provision to the content of the law, the relevance of the various legislative intentions depends on the intentions of those intentions on the content of the law.

Does the content of the law depend on the legal provision that the legislator really intended? Or on what primacy of the law would a reasonable person have, in certain circumstances, adopted a hypothetical coherent legislature in order to create it by expressing the terms of the provision? Or perhaps on what the legislator has said or said? Normative arguments could be relevant at this stage. For example, there may be reasons of democracy where legal intentions have a significant impact on the content of the law only if they are publicly available in certain relevant sources. The “new originalists” (see Section 3) explicitly advocate the use of the term “constitutional interpretation” for the process of discovering the meaning of the constitutional text (to be distinguished from “constitutional construction”, an “essentially creative” process of constructing meaning). But with the important exception of Larry Solum (2010), it is clear from their writings that they do not consistently use the term “meaning” for the linguistic meaning, which often seems to have in mind, for example, a legal norm or an understanding of how a legal standard should be applied in certain cases (e.g., Whittington 1999a, 5-11; Barnett, 2013, p. 419). For more examples, see section 4.2. As proposed below, it can be argued that their view is better reconstructed so that the interpretation of the law refers to the content of the law that they consider to be of “public importance”. A variant of the actual legislative intent is counterfactual intent (cf. Posner 1986).

To say that Parliament had some counterfactual intent means that if Parliament had dealt with the matter in question, it would have had the intention in question. Metaphysical, existential, and epistemic problems are particularly serious for counterfactual intentions. Moreover, since the emphasis is on what the legislature would have intended with regard to the specific issue before the Court, counterfactual intentions are understood more as counterfactual intentions than as counterfactual legal or communicative intentions. And the relevance of the intentions of application for the interpretation of the law is particularly problematic. (see Greenberg and Litman, 1998; Berman, 2007, p. 385; 2009, 28; McConnell, 1997, p. 1284; Whittington, 2013, pp. 382-83). This question is more fundamental than the more well-known questions about the method of interpretation, because which method is correct (and what reasons or arguments speak in favor of a method) depends on the interpretation of the law sought. In general, the question of the quality of a method depends on what the method is intended for. The appropriate method for determining, for example, the linguistic meaning of a text is likely to be very different from the appropriate method for finding the best solution to a dispute. Similarly, the fact that a method is fair or democratic may very well be irrelevant if the interpretation of the law seeks linguistic significance, but very relevant if it is aimed at the best resolution of disputes.

This part of the text may also be accompanied by a set of prescriptive guidelines indicating the treatment of the recipient. What is useful about saying that the interpretation of the law seeks a linguistic meaning? Interpretation is often considered to be the activity of attribution of meaning (e.g., Knapp and Michaels, 1982; 1983; Graglia, 1992; Poisson, 2005; 2008; Michaels, 2009; Alexandre, 2013). By definition, according to one version of the argument, the interpretation of an object seeks its meaning – probably in the narrowest sense of what that object symbolizes or represents. (If “meaning” were understood in the broad sense of the meaning, the argument could not result in any actual limitation of legal interpretation.) Another related argument is that legal interpretation is an example of linguistic interpretation and that linguistic interpretation seeks a linguistic meaning (e.g., Soames, 2009; Alexandre, 2011). According to the first point of view, the interpretation of the law goes a little further than the linguistic meaning and the contribution of the provisions to the law. It aims to resolve disputes pending before the courts or other arbitrators. The position is often not explicitly defended. In fact, there has recently been a tendency to emphasize the distinction between jurisprudence (understood as anything else that courts must do to resolve disputes) and interpretation. [9] Objectified intentions are imputed to Parliament by making various assumptions, generally counterfactual, about the audience and the author of the law. For example, we might ask ourselves what legal standard a reasonable person would have adopted from a consistent and reasonable legislator in order to create it by adopting the terms of a legal provision.

Among the most common elements that we find when examining the structure of these types of texts we find the following: Given these implications of well-known legal theories for defending theories of legal interpretation, it is worth returning to the type of arguments that legal interpretation theorists actually offer to support their favorite reports. As mentioned earlier, normative arguments are probably the most common. The typical argument is that a method is supported by a certain value – democracy or fairness, for example – because the method treats sources of law as if they contribute to the law as that value requires. However, in influential textualist and originalist movements, there has been a discernible tendency to move away from arguments about judicial restraint and to turn to arguments that textualism and originalism accurately identify the content of the law. Berman (2018, 1340-44) identifies this trend in originalist science. (See also Whittington 2004, pp. 608-09.) As Randy Barnett puts it, “the original meaning of the text is provided by the law to which legal decision-makers are bound” (Barnett 2013, 417). See, for example, Calabresi and Prakash 1994, 552; Bork, 1990, 5, page 144 Similarly, textualists seem attracted to the idea that “the text is the law.” Scalia, 1997, p. 22; Scalia and Garner 2012, 383, 397-98; Easterbrook, 2017, page 82 However, as Berman (2018, 1343 n.

60) points out, Scalia was not consistent in this regard.