INTERPRETATION AND LEGAL THEORY

This is a revised and extensively rewritten edition of one of the most influential
monographs on legal philosophy published in recent years. Writing in the introduction to the first edition the author characterized Anglophone philosophers as
being “. . . divided, and often waver[ing] between two main philosophical objectives: the moral evaluation of law and legal institutions, and an account of its
actual nature.” Questions of methodology have therefore tended to be sidelined,
but were bound to surface sooner or later, as they have in the later work of Ronald
Dworkin. The main purpose of this book is to provide a critical assessment of
Dworkin’s methodological turn, away from analytical jurisprudence towards a
theory of interpretation, and the issues it gives rise to. The author argues that the
importance of Dworkin’s interpretative turn is not that it provides a substitute for
‘semantic theories of law’, but that it provides a new conception of jurisprudence,
aiming to present itself as a comprehensive rival to the conventionalism manifest
in legal positivism. Furthermore, once the interpretative turn is regarded as an
overall challenge to conventionalism, it is easier to see why it does not confine itself
to a critique of method. Law as interpretation calls into question the main tenets
of its positivist rival, in substance as well as method. The book re-examines conventionalism in the light of this interpretative challenge.

Interpretation and Legal Theory
Second edition

ANDREI MARMOR

OXFORD AND PORTLAND, OREGON
2005

Abingdon Road. Designs and Patents Act 1988. Norfolk .hartpub.uk WEBSITE: http//www. Oregon Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 5804 NE Hassalo Street Portland. To order further copies of this book or to request a list of other publications please write to: Hart Publishing. to be identified as the author of this work Hart Publishing is a specialist legal publisher based in Oxford.Hart Publishing Oxford and Portland. Oxford OX1 4LB Telephone: +44 (0)1865 245533 or Fax: +44 (0)1865 794882 e-mail: mail@hartpub.uk British Library Cataloguing in Publication Data Data Available ISBN 1–84113–424–4 (paperback) Typeset by Hope Services (Abingdon) Ltd. Salter’s Boatyard.co. England. Oregon 97213-3644 USA © Andrei Marmor 2005 Andrei Marmor has asserted his right under the Copyright. Printed and bound in Great Britain on acid-free paper by Page Bros Ltd.co. Folly Bridge.

4. Constructive Identification and the Objects of Art 3. Putnam’s Theory of ‘Natural Kinds’ and the Concept of Law 3. COHERENCE. The Reflective Equilibrium Identity. AND INTERPRETATION: THE EPISTEMIC FOUNDATION OF DWORKIN’S LEGAL THEORY 1. SEMANTICS. and Soundness The Fish—Dworkin Debate The Concept of Fit Once Again 5. CONSTRUCTIVE IDENTIFICATION AND RAZIAN AUTHORITY 1. The Constructive Model of Interpretation Theory and Practice The Internal Point of View The Argumentative Character of Law Constructive Interpretation and the Principle of Charity 4. DWORKIN’S THEORY OF INTERPRETATION AND THE NATURE OF JURISPRUDENCE 1. Pragmatics 3. AND NATURAL LAW 1. 2. Fit. The Meaning of ‘Realism’ and the Meaning of ‘Law’ 2. INTRODUCTION 1 2. Constructive Identification 2. HOLISM. 4. A Third Meaning of Meaning? 3. 5. Razian Authority and Constructive Identification in Law 10 17 21 27 28 33 37 39 44 47 47 53 55 62 65 66 71 74 79 80 82 87 . 3. REALISM. MEANING AND INTERPRETATION 9 1. 2. Real Law? 6. Radical Interpretation 2. 3.Contents Preface to the Revised Edition Preface to the First Edition vii ix 1.

CONSTITUTIONAL INTERPRETATION 95 95 99 103 106 112 119 119 122 126 132 141 1. A Scarecrow Called Formalism The Hart—Fuller Debate The Argument From Defeasibility Indexical Predicates and Empirical Defeasibility Wittgenstein on Following a Rule 8. 4. 2. The Legitimacy of Judicial Review 144 149 Part Two: Interpretation 4. Alternative Methods? 155 160 References Index 171 177 . LEGISLATIVE INTENT AND THE AUTHORITY OF LAW 1. 3. 4. The Moral Legitimacy of the Constitution 3. Two Basic Questions 141 Part One: Moral Legitimacy 2. What is the Issue? Whose Intentions? What Kind of Intentions? Why Should Intentions Count? 9.vi Contents 7. 2. 5. Any Sensible Originalism? 5. 3. NO EASY CASES? 1.

If I have a better sense of these issues now. and I am grateful to Richard Hart. Mostly. I am very grateful to my students over the years who had to endure my constant struggles to understand the nature of interpretation and its bearing on the nature of law and legal reasoning. The latter I have done in a new chapter. it is only because they forced me to explain my thoughts in the face of their healthy skepticism. however. Some of those replies I have already published over the years. But it was certainly a challenge. for presenting me with this opportunity to issue a second edition of this book. Understandably. some of the arguments required revision as well. On the whole.Preface to the Revised Edition It is an awkward task to revise a book one wrote more than a decade ago. I cannot say that it was a pleasure to work on these revisions. though I was quite sure that the English and style would require considerable revision. This revised edition is one more phase in a continual endeavor to understand interpretation and legal theory. which deals with Dworkin’s theory of interpretation. I wasn’t sure that I would find all the arguments cogent. As it turned out. the publisher. I have not attempted to provide here a detailed reply to critics. I approached it with some apprehension and a great deal of concern. 2004 . So when I began this revision project. others must await another occasion. and to add a discussion of interpretation in the constitutional domain. I had to make substantive revisions in Chapter 3. it is more satisfying to explore new topics than to try to clarify old thoughts. Particularly. The purpose of this revised edition is to clarify the arguments which appeared in the first edition. Andrei Marmor Los Angeles.

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My acknowledgments would be seriously wanting if I did not mention my gratitude to Adrian Zuckerman for his help and encouragement during my stay at Oxford. Marty Levine. which provided a generous research allowance enabling me to prepare the book. all of which provided generous funds. I am also indebted for his comments on the drafts of several chapters. and the University of Oxford. who introduced me to legal philosophy several years ago. and saved me from some serious mistakes and obscurities. editing. Many people have helped me to accomplish it. Carsten Hansen. Meir Dan-Cohen’s comments on the drafts of several chapters were extremely helpful: he saw many issues which originally had eluded me. Gad Prudovski. from whom I have learnt a great deal and could still learn much more. A contracted version of Chapter 7 was published in the Canadian Journal of Law and Jurisprudence.Preface to the First Edition This book is based on a doctoral thesis submitted at the University of Oxford. and Ian Rumfitt. Horwitz. My stay at Oxford was made possible by the Tel Aviv University Faculty of Law. . Morton J. Cohen. Ronald Dworkin was kind enough to comment on a substantial part of the book. Finally. and to the members of Balliol College for the stimulating and enjoyable time I spent there. Thanks are also due to G. Balliol College. and I am grateful to the editors for their permission to use the article here. A. I owe a special debt of gratitude to Chaim Gans of Tel Aviv University. and the conversations we have had. I am most grateful to him for his illuminating criticisms of drafts of this work. and for his continuous advice and encouragement throughout these years. I would like to express my appreciation to Rela Mazali for her thorough revision of my English. but my greatest debt is to Joseph Raz. and I am grateful for his invaluable criticisms. influenced my thought considerably. all of whom read parts of this study and offered valuable comments. and style. for the many hours he spent trying to improve my English. and who also provided me with valuable comments on parts of this work. Michael Moore. Peter Hacker’s memorable seminars on Wittgenstein. I am also indebted to the Cegla Institute for Comparative and Private International Law of Tel Aviv University Faculty of Law. to Trevor Dickie.

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but from a methodological perspective it is problematic. the attempt to answer the question ‘What is law?’. historians. But if it is neither the essence of law nor its definition that legal theory should seek out. have their own perspective on law. Hart regarded the main task of legal philosophy as one of providing an analysis of the concept of law and related concepts essential to our understanding of law and legal systems. and an account of its actual nature. During the 19th century it was reasonable to seek a definition of ‘law’. sociologists. legal philosophers could look to the dominating philosophical tradition of the time. The assumption was that law is too complex a phenomenon to be captured by any one definition. in turn. What can philosophy contribute to our understanding of a social practice such as law? How would such an understanding differ from that of the sociologist or historian? Historically. The Concept of Law (1961). the kind of answer expected to the question ‘What is law?’ has typically varied with the dominating philosophical tradition. On the background of twentieth-century analytical philosophy. is somewhat puzzling. find their own particular interests in this social phenomenon. economists. perhaps. thus manifesting. Generally speaking. As such. what then? Once again. HLA Hart is the founder and torchbearer of the resulting tradition. a different kind of answer was required. the rising concern for logical and scientific accuracy. theologians. and it no longer seemed to make sense to speculate about the ‘nature’ or ‘essence’ of law. this definitional task was conceived of as rather naïve. the conceptual analysis undertaken in his monumental book. to the emerging analytical philosophy and its manifest interest in language and the concept of meaning. the interests of Anglophone philosophers are divided. But this latter. each equipped with his or her methods and theoretical objectives. in this case. however. Philosophers. Thus when medieval essentialism lost its appeal. He believed that a meticulous conceptual analysis of this type would . and often waver between two main philosophical objectives: the moral evaluation of law and legal institutions. has shown the methods and insights of recent analytical philosophy to be relevant to the classical questions of legal theory.1 An Introduction: The ‘Semantic Sting’ Argument L AW IS ONE of the most interesting and complex social phenomena of our culture. descriptive type of theorizing. it attracts scholarly attention from a wide range of different fields.

he argues. the analytic––conceptual one. happen to converge. and later throughout his writings. the analytical approach to jurisprudence raised methodological questions of its own. it is far from self-evident what the analysis of concepts consists in. Undoubtedly the reason for this lies at least partly in the substantive improvements Hart was able to offer on the existing (and exciting) models proposed by Austin and Kelsen. since it provides them with 1 Hart has also conceived of his jurisprudence in terms of a project in ‘descriptive sociology’. After all. . however. for the most part. is a serious impediment. Recently. which Dworkin identifies with what he calls ‘semantic theories of law’. and legal positivism in particular. . Yet in the earlier stages of his criticism he followed in the methodological footsteps left by Hart and made his own contribution to the tradition of analytical jurisprudence.1 Needless to say. As long as the legal theories presented by Austin. as they have with the recent work of Professor RM Dworkin. observations about method tended to be rather casual and incidental to the main inquiry. that Dworkin now finds flaw in analytical jurisprudence in general. proclaimed in his preface to The Concept of Law? It seems remarkable that these methodological concerns have not come to the forefront of legal philosophy until quite recently. . Since replacing Hart as the Oxford Professor of Jurisprudence. Is the analysis of the concept of law a matter of determining the ordinary uses of ‘law’? And if so. It is with this. he argues. citing JL Austin. but before the argument can begin it is important to place this methodological turn in the appropriate perspective. Dworkin has turned out to be his predecessor’s most extraordinary critic. But of course. free of romanticism or moralizing myths. and of some of the substantive issues it gives rise to. This approach. One of the main purposes of this book is to provide a critical assessment of this methodological turn. is the only kind of theory that can account for the interpretative nature of legal practice. sharpen[s] our perception of the phenomena’. and many of his followers. The question of how these two projects. ultimately. as Hart. how would this contribute to a better understanding of law as a social phenomenon? What makes it true that ‘a sharpened awareness of words . Kelsen. despite Hart’s own awareness of them and some intriguing answers he suggested as early as his inaugural lecture of 1953. and Hart could offer intriguing models for substantive philosophical discussions. an account of the meaning of ‘law’.2 An Introduction: The ‘Semantic Sting’ Argument lay the intellectual foundations for a rational and critical evaluation of law. is to be replaced by a theory of interpretation which. his critique has taken a sharp methodological turn: it consists in an outright rejection of the analytical approach to legal theorizing. is a difficult one to answer. The semantic basis of these theories. Dworkin believes Hart. and the sociological. to have presumed that an adequate account of the concept of law is. This may be indicative of the attention paid by philosophers to questions of method being inversely proportionate to the substantive progress being made in the given field. the methodological puzzles were bound to surface sooner or later.

An Introduction: The ‘Semantic Sting’ Argument 3 no means of accounting for certain aspects of legal practice. those aspects which he finds most in need of explanation. that it is only the latter kind of disagreement that one expects to find in courtrooms among lawyers and judges. legally valid.’ is false because no such norm is legally valid. This is not a very good label. Thus the statement that ‘the law in England imposes a speed limit on driving’ is true because there exists a legally valid norm to that effect. for example. and it is false that the limit is 100 mph. A statement about the law (in a given legal system) is true if and only if the norm it purports to describe is a valid legal norm. For example. that the law in England imposes a speed limit on driving. but not others. disagreement on a particular issue supposedly settled by the common law must result either from failure to find the relevant precedents or from an inability to agree on the appropriate interpretation of the precedents that have been found. (Or. and in a rather special way: they concern the very basic question of legal theory. It is a widely acknowledged fact that we can make propositions about the law in any given legal system which are true or false. Hence it also follows that there can be (at least) two types of disagreement over the truth or falsehood of propositions about the law. and disagree as to whether or not those conditions actually obtain in a given case or not. competent lawyers often have serious disagreements about the law. Yet Dworkin rightly points out that not all of these legal disagreements are of one and the same kind. Let us take a closer look at this argument.) It follows that there must be certain conditions which render certain norms. or so Dworkin contends. It is true. It is also widely acknowledged that there are numerous problematic cases. for instance. in which case their disagreement is a theoretical one. and the statement that ‘the speed limit in England is 100 mph. People can disagree over the question ‘What are the conditions of legal validity?’. namely. we would not think that deciding on what moral facts are is a matter of an empirical enquiry. though. which. arguments about the contents of the law on a given issue must be due to the fact that they cannot agree as to whether or not these conditions obtain. that precedent in England has legally binding force. to be more precise. these theoretical disagreements (as Dworkin calls them) are disagreements over the conditions of legal validity. the question of ‘What is law?’ More precisely. 2 Dworkin coins the expression ‘grounds of law’ here. Some are more profound than others. Ascertaining what facts are is not necessarily an ‘empirical’ type of enquiry. Appellate court decisions are rife with disagreements between the judges on what the law is. Validity is a logical property of norms in a way akin to that in which truth is a logical property of propositions. Or they can agree on the conditions of validity. is meant to capture those propositions that are taken to constitute the conditions of legal validity in a particular legal system (1986: 4).2 A legal system is a system of norms. .3 It is widely presumed. is false. the proposition: ‘There is a valid legal norm in England according to which the speed limit is 100M mph’. They are expected to agree on the conditions of legal validity in their legal systems. 3 Dworkin (1986: 5) calls this latter type of disagreement ‘empirical’. Lawyers would all agree. if I understand him correctly.

however. at least not according to Dworkin’s understanding of semantic theories of law. leads to an embarrassing dilemma. The type of theoretical argument entertained by legal philosophers is one which concerns the concept of legal validity. and not the conditions of validity in a particular legal system. It is worth mentioning. All this seems quite straightforward. disputes over the legal relevance of legislative intent and the legislative history of a statute are best characterized as disputes over the conditions of legal validity. only a matter of conventions or is it also a matter of moral truths? But. Legal positivism. Be this as it may. Why is this? What makes it a problem for legal positivism to account for theoretical disagreements in law? The argument. the dispute between various versions of the binding force of precedents in English law. considerations. are more convincing than others. he claims.’ Dworkin (1986: 6) contends. have been essentially semantic theories. the main question is not whether precedent in English law is binding in this or that manner. is indeed one which pertains to the question of legal validity. the difference between legal systems adhering to different rules on this matter amounts to a difference in the kind of norms recognized by each system as legally valid. particularly legal positivism. lawyers sometimes support their cases. other examples can easily be provided.4 An Introduction: The ‘Semantic Sting’ Argument Theoretical disagreements about the conditions of legal validity are thought to be the business of legal philosophers and jurisprudence courses in universities. then. This semantic approach. However. Dworkin goes to some lengths to show this through a careful analysis of several concrete ‘hard cases’ from the United States and England (1986: 15–30). is the thesis maintaining that ‘our rules for using “law” tie law to plain historical fact’ (1986: 31). and often controversial. with theoretical. Thus. about the appropriate conditions of legal validity. for example. of which legal positivism is. runs as follows: recent legal theories. and judge their opinions. For a legal philosopher. however. It would boil down to two alternatives. and I presume that examples. it should not be. of course. Dworkin is surely correct in characterizing it as naïve and unrealistic. Whether or not this view is a widely shared one is questionable. in which case the argument would become rather silly (like one . They have presumed that we follow shared rules in using any word. In any case. though perhaps rare. it is a more basic question of how is the previous question to be decided: is it. which Dworkin dubs the ‘semantic sting’. that the kind of theoretical disagreement typically encountered in such legal cases is not very deep. One would be to admit to facing a semantically borderline example. there is no reason why judges should not engage in such deeper controversies. Some of these. ‘Our jurisprudence has no plausible theory of theoretical disagreements in law. for example. however. can be found. allegedly. rules determining the criteria for the given word’s meaning. Theoretical disagreements do form part of legal reasoning. to take another of Dworkin’s examples. If lawyers and judges share semantic rules that determine the meaning of law. any further theoretical argument over what the law is would not make much sense. a prominent example. Not all would agree with him that. aiming to determine the meaning of ‘law’.

In other words. I am afraid. not his own counterargument. even if those truths are not knowable. but about whether to follow the law or to change it. But I think that this mislabeling has taken root by now. But of course. is just the case. contrary to the rhetoric. pointless). since HLA Hart forms one of the express targets of the ‘semantic sting’ argument. we seem to be left with the pretence version.4 The other would be to concede that. In particular. such statements do not necessarily settle the issue. In fact. there seem to be fewer semantic theories of law than Dworkin’s account would suggest. As we would not wish to insult judges with the former option. something of the incongruity this would imply seems to have bothered Dworkin. practically speaking. Williamson (1994). 6 It is embarrassing. or advance and clarify our moral deliberations. Hart was very definite as to the word ‘law’ having more than one meaning. Those who maintain the so-called ‘epistemic theory of vagueness’ think that there is a truth of the matter about borderline cases of vague concepts. how it is to be changed. on this semantic approach. and determined that the dispute between rival legal theories over the appropriate concept of law is ‘ill presented as a verbal one’ (1961: 204).6 To begin with.An Introduction: The ‘Semantic Sting’ Argument 5 over whether a large pamphlet is a ‘book’ or not). almost shameful. of course. which does not mean. after all. I will continue to use the ‘semantic sting’ as a label for Dworkin’s own argument. . that they cannot be answered. theoretical disagreements about the conditions of legal validity are in fact disguised arguments over what the law should be. As Joseph Raz pointed out to me a few years ago. or at least that is what I shall argue. Dworkin (1986: 44–45) actually calls the legal positivists’ argument the semantic sting. as no such explanation is required if the ‘semantic sting’ is shown to have stung no one. But this raises a series of difficult questions: after all. the argument was not really about what the law is. that we have made a mistake in mislabeling Dworkin’s argument as the ‘semantic sting’ argument. This would seem to be the most explicit repudiation one could expect of the semantic approach. as at some point he feels 4 Not everybody believes that such arguments are bound to be philosophically silly (though they would be. and the like. or a kind of pretence. why not take legal rhetoric at face value? Why is such pretence necessary at all? And how can it have worked for such a long time—should judges keep their fingers crossed that this pretence is never discovered? All these are difficult questions. Has he ever maintained that his account of the concept of law was in fact a semantic analysis of the meaning of the word ‘law’? If The Concept of Law is taken as the basic statement of Hart’s views. 5 I will discuss the rationality of judicial rhetoric in Chapter 6. See. the answer will quite clearly be ‘no’. theoretical disagreements are either silly. 7 Dworkin is not the only one who offers this semantic interpretation of Hart: see eg Coleman (1982) and Soper (1987: 1171). The choice between rival concepts of law must be a reasoned one: ‘it must be because one is superior to the other in the way in which it will assist our theoretical inquiries. I shall not attempt to discuss the pretence story at this stage. supplemented.7 Nevertheless. it would be fair to ask whether he actually adhered to the semantic approach attributed to him by Dworkin. however. for example.5 This. philosophers do not always hold to their programmatic proclamations. and with appropriate apologies to Dworkin. or both’ (Hart 1961: 204–5).

Such an argument would be as pointless as an argument over ‘banks’. To begin with. do not manifest an ignorance. Other cases are more complex in this respect.8 Sometimes this is simply a matter of ignorance. this is a spurious dichotomy. this diagnostic explanation is even more puzzling than what it aims to explain. know very little about the chemical composition of plastic. yet most of us have no idea of the criteria we use . for instance. an analysis of the ordinary uses of such concept-words usually reveals a multiplicity of things meant by people in various uses of the word. for instance. as Hart aptly emphasized. Philosophers’ disagreements over the concept of knowledge. . Nor is it usually taken for granted that such concept-words have one meaning only. . there would be no genuine arguments over the question ‘What is law?’ to account for (1968: 43–44). He concludes that the semantic theorists suffer from a ‘block’: they must have presumed that if lawyers follow different rules in using the word ‘law’. rather than semantic considerations. The semantic sting argument would seem to hold here as well: if it is presumed that people share a semantic understanding of the meaning of ‘knowledge’. In short. in which case they are acting foolishly.6 An Introduction: The ‘Semantic Sting’ Argument that the fallacy he has revealed is so transparent as to require a diagnostic explanation of how the semantic approach could be maintained without anyone noticing its fallacy. without being able to articulate a correct theory about what it signifies. in which one person is referring to riverbanks and the other to commercial banks. it falls to philosophy to explicate these for us’ (1986: 31). the question. We use numerous conceptwords according to the appropriate rules of language without being able to provide a complete explanation of the concept-word’s reference. Unfortunately. . yet we all know what ‘plastic’ means. most of us. a choice based on theoretical. Consider. or else they are indulging in a kind of pretence (and acting what?). Semantic theorists must thus have concluded that unless lawyers and judges follow the same rules in using the word ‘law’. the fact that people have genuine disagreements about what a concept refers to does not entail that they do not know the meaning of the word. ‘What is knowledge?’ upon which epistemology turns. I suspect. or that the disagreement is necessarily over borderline examples. and. it remains for us to propose a reasoned choice between the various uses we have revealed. for example. On the contrary. it is important to realize that the logic of the argument could be turned against almost any other philosophical question besides this one. then either philosophers are quarrelling over borderline examples (and have done so for almost two thousand years). But then why should this option be denied 8 It is quite remarkable that at some point Dworkin himself provides an example without realizing its full significance: ‘We all use the word “cause”. in what seems to be roughly the same way . There is a clear sense in which people can be said to know the meaning of a concept-word. they are theoretical disagreements over the best way to understand that which the concept-word ‘knowledge’ actually refers to. then no genuine disagreement between them on the question ‘What is law?’ could be seen as an intelligent debate. . But of course. Each lawyer would simply mean something different from the other when saying what the law is. .

for moral considerations to determine the legal validity of norms. But then it seems that if Dworkin is right about the legal reasoning of lawyers and judges (at least in the 9 Legal positivists are divided on the appropriate interpretation of this thesis. what a community of lawyers and judges thinks that it is. this conventional account of law’s validity cannot explain how the law is able to impose obligations in controversial cases. the Rule of Recognition. legal positivism is patently false. they identify the sources of law. they have exhausted their binding force. Dworkin assumes. and my reasons for rejecting it. in fact. These conventions identify which actions or procedures create the law. But this latter conclusion. that is. that is. Dworkin has long argued for the existence of an irreconcilable tension between the conventionalism espoused by legal positivism and the controversial nature of legal reasoning. Lawyers and judges regard numerous norms as legally binding. . manifest a pattern of agreement.9 (Hart has further maintained that in any given legal system these conventions can be formulated by one master rule. or in other words. Most contemporary positivists maintain that it is possible. the ‘semantic sting’ argument is. According to legal positivism. as ex hypothesi. as long as such moral considerations are derivable from the conventional rules of recognition. though not necessary. For my understanding of the various versions of this idea. For those who claim that law is essentially a matter of social conventions. position on the meaning of ‘law’. This means that a norm cannot be legally valid unless it derives its validity from one of the sources identified by the pertinent conventional rules. it is not easy to provide a single definitive formulation of it. however.) Now. despite their undeniably controversial nature. On a conventionalist account. the conditions of legal validity are determined by the social rules and conventions prevalent in a given community. anti-realist. ipso facto. cannot be maintained. according to Dworkin. once their application turns out to be controversial there are no grounds for further argument on the basis of these conventions. Dworkin argued. Viewed from the vantage point of contemporary theories of language. to the conditions of legal validity. legal positivism amounts to a conventionalist. Thus his conclusion that because legal positivism is committed to the view that law is uncontroversial. seems to be the following.An Introduction: The ‘Semantic Sting’ Argument 7 to lawyers and judges? Why should they not be able to have genuine arguments about the question ‘What is law?’ which neither concern borderline examples nor manifest semantic misunderstandings of any kind? It seems that the only way of understanding these perplexities involves a recognition that what Dworkin is arguing against are not really semantic theories of law but conventionalism in general. Conventions. there is nothing more to law. An additional thesis of legal positivism is that the law is essentially source based. a convergence of beliefs. a new version of an old controversy argument against conventionalism. Now it is not difficult to see that the ‘semantic sting’ argument is a reformulation of this old controversy argument. In other words. As the argument is stated in several ways in Dworkin’s writings. there is no binding law in controversial cases. The essential point. law is. Hence on this conventional theory of law. see Marmor (2001: ch 3). than that which is perspicuous in the rules and practices which people actually follow.

Furthermore. This book sets out to re-examine legal positivism in the light of this interpretative challenge. and I would like to believe that the rest of this book would show it is not. The theory of interpretation he proposes is not a substitute for ‘semantic theories of law’ (which may not have been really espoused by anyone). in which case law is not a matter of conventions. once the ‘semantic sting’ argument is seen in the light suggested here. aiming to present itself as a comprehensive rival to the conventionalism manifest in legal positivism. once the interpretative turn is regarded as an overall challenge to conventionalism. Nevertheless. in substance as well as method. or—if it is what lawyers and judges think— conventionalism is false. In other words. either law is not what lawyers and judges think that it is.8 An Introduction: The ‘Semantic Sting’ Argument common law systems). that is. as they do not see the law as purely a matter of conventions. if what they recognize as binding is not only source-based law. as an overall objection to conventionalism. Law as interpretation calls into question the main tenets of its positivist rival.10 It remains to be seen whether or not this allegation against conventionalism is sound. then conventionalism turns out to be false on its own terms. I think it becomes easier to understand and consequently recognize the importance of Dworkin’s interpretative turn. 10 A very similar interpretation of Dworkin’s argument has been recently endorsed by Kenneth Himma (2002: 165ff) . namely. it is easier to see why it does not confine itself to a critique of method. conventionalism would be self-defeating: if lawyers and judges recognize as legally binding not only those norms which are uncontroversially identifiable under the Rule of Recognition. but a new conception of jurisprudence.

and in many other cases. to mean any kind of ‘explanation’. such as utterances. only those objects which are capable of bearing some meaning qualify as potential objects of interpretation. somewhat loosely. works of art. they do not purport to explain it. interpretation is often used. their argument is. social practices. which means that there are bound to be numerous borderline cases of ‘interpretation’. because the concept of interpretation is vague. But how should one go about such an analysis? The multifarious uses of ‘interpretation’ may prove quite confusing. But what is it that makes interpretation unique in this narrow sense. Here. This. different from any other form of understanding or explanation? Presumably this: roughly. When judges interpret the law. but not exclusively. Literary critics. again. More importantly. and judges. etc. as I suggest there. But there is also a narrow sense of interpretation which does not stand for just any kind of explanation or understanding. due to which they too are cited and perhaps rightly so. and perhaps even dreams. there is a fairly clear sense in which we use the word ‘interpretation’ to designate a unique type of reasoning or understanding. also seem capable of bearing some meaning. texts. I will assume. a distinctly interpretative one. Forms of behavior. or ‘understanding’ or ‘theorizing’ or such. and that this does not necessarily tie the concept of interpretation to that of meaning. it might be useful to attempt an analysis of the concept of interpretation itself. First. rites. I do not find this . is the sense in which the concept of interpretation is narrower than that of explanation. In other words. Hence also. or whatever. This is not to say we should ignore the ordinary meanings of ‘interpretation’. These are typically. which is to examine the concept of interpretation in law and legal theory. musicians debating the appropriate way to perform a Mozart sonata would not be described as arguing about the explanation of the sonata. interpretation can be defined as an understanding or explanation of the meaning of an object.1 1 Timothy Endicott (1994) suggested a much simpler idea instead: he claims that interpretation is simply an answer to a question of the type––‘What do you make of this?’. to take a few familiar examples. theologians. ‘interpretation’ and ‘explanation’ are used interchangeably. but not very helpful. In its broad sense. typically engage in a kind of reasoning which we distinctively call interpretative. as possible objects of interpretation. interpretation has both a broad and a narrow sense. When a scientist is looking though the microscope we could say that she is trying to interpret what she sees. or Mozart. Similarly.2 Meaning and Interpretation B EFORE EMBARKING ON the main project of this book. That is perfectly all right. but only that they should be treated with caution. acts or products of communication.

‘What do you make of it?’ is simply synonymous with ‘What is your interpretation of this?’. I shall then go on to examine the possibility of conceiving the concept of interpretation in terms of the notion of meaning as construed by pragmatics.2 Mainly though. since Frege and Wittgenstein. RADICAL INTERPRETATION The general concern of semantics. . The basic idea here is that knowing the meaning of a sentence is knowing what has to be the case for it to be true or false. just about anything in almost any context. the question ‘What do you make of this?’ can be asked. (or could be extended to encompass one). employing Frege’s distinction between the sense of a sentence and its force. defining interpretation in terms of the attribution of meaning is a convenient move considering the extensive attention paid by contemporary philosophers to the analysis of meaning. because I hope that the discussion will illuminate certain important differences between the concerns of interpretation and those of semantics. of meaning involved in this concept. or summed up in a somewhat different version (for instance Dummett’s). or notions. (The latter has meanwhile come to be called ‘illocutionary force’. and answered. truth-conditional semantics maintains that one has grasped the meaning of a sentence if and only if one is able to specify the conditions which render it true or false. as it still remains to be seen what the appropriate conception of ‘meaning’ is. 2 See eg Wallace (1986: 211–34).10 Meaning and Interpretation This. arguing that although the interests of the two overlap. would seem to advance us very little. It should be noted in advance that this chapter will not provide a comprehensive account of the concept of interpretation. truth-conditional semantics introduced a rather special notion of meaning. interpretation and pragmatics presuppose potentially different criteria of success. Indeed. I thus propose to begin the analysis of the concept of interpretation by way of defining the appropriate notion. Unless. Root (1986). it only prepares the ground for the subsequent discussion which will analyze in further detail some of the issues discussed here. partly because some philosophers assume that this particular theory of meaning was meant to provide the basis for a general theory of interpretation. in which case we are back to square one. McGinn (1986). I shall begin this discussion by questioning the possibility of perceiving the concept of interpretation from the viewpoint proposed by Donald Davidson’s theory of radical interpretation. mostly because it ignores the distinction between the broad and narrow senses of ‘interpretation’. however. More specifically. of course. can be characterized as the analysis of meaning. Nor is it clear whom ‘you’ refers to in this question and why would it be of any interest what ‘you’ make of it. In other words. 1. The choice seems to me to be justified. Since only a relatively small number of actual sentences can be said to have truth values. in the question ‘What is it to know what a linguistic expression means?’ One of the dominating theories in this field is that of truthconditional semantics. Nevertheless. particularly helpful.) The notion of truth conditions is meant to be an explication of the sense of a sentence.

see Baker and Hacker (1984a: chs 2–3). it aims at an explication of linguistic communication. a sarcastic remark. Davidson himself is not sufficiently clear on what radical interpretation is about. The theory may be used to describe an aspect of the interpreter’s competence at understanding what is said. or was trying to communicate. ‘All understanding of the speech of another involves radical interpretation’ (1984: 125). Such knowledge would fail to clarify whether it was a genuine question. and so on. ‘Do you know an honest politician?’ In one clear sense.3 The assumption is that the component of sense remains basically constant in spite of variations of the illocutionary force. an exclamation of 3 For a criticism of the distinction between sense and force. my emphasis) The problem is that the question of what words mean on an occasion of use is equivocal. Consider the following remarks: We interpret a bit of linguistic behavior when we say what a speaker’s words mean on an occasion of use. on that occasion. can only be taken as a stipulative definition of certain aspects of that which renders communication possible. it would seem. and how far. One can assert that such-and-such is the case. (1984: 141) Having identified [his] utterance as intentional and linguistic. ask whether it is the case. wish that it were the case. The gap between the two alternatives is fairly obvious. He says. granted that the theory is true. Yet his own theory of meaning is guided by a rather unique perspective on truth-conditional semantics. my main question is what is it that it states and provides? More particularly: Does it provide the basis for a theory of interpretation? Unfortunately.Radical Interpretation 11 which is taken to be the core of the theory. which aspects? No definitive answer to this is offered when Davidson comes to state the aims of his theory. But this question can be understood in (at least) two distinct ways. On a very broad reading. and is in any case unnecessary. What could we know that would enable us to do this? How could we come to know it? (1984: 125. if at all. which—under the influence of Quine’s (1960) ‘radical translation’ theory—he calls ‘radical interpretation’. In other words. it has to do with the explication of sentence meaning. The question remains. A full presentation of Davidson’s theory of radical interpretation would far exceed the scope of this chapter. In a much more limited sense. My interest lies in the range of this theory rather than its merits. The assumption is that each wellformed sentence has a sense that is distinguishable from its illocutionary force. Now Davidson endorses this conception of ‘meaning’ and much of the theoretical burden attached to it. knowing what the words mean on an occasion of use would be insufficient for understanding what the speaker meant. we are able to go on to interpret his words: we can say what his words. This. meant. . what it is about. Davidson claims to be interested in the question of what could constitute sufficient knowledge on the part of an interpreter which would enable him to interpret each one of the potentially infinite utterances made in his linguistic community. it can be conceived of as the basis for a theory of interpretation. Consider the utterance.

1990: 299). Davidson argues. however. ‘the theory is true if its empirical implications are true’ (1984: 142). On the other hand. Note. In other words. and what constitutes the explanandum. how should one proceed from here? Davidson’s main answer is based on the principle of charity: 4 The most important modification introduced by Davidson is that he takes the notion of truth as given.4 Tarski’s Convention––T. Thus. of course. the only thing which can be taken as given. ‘snow is white’ if and only if grass is green: the T–sentences must give the correct meanings of the object-language sentences (1984: 150). Hence. correct interpretations would be entailed only if certain constraints were added. . are interconnected notions: one’s beliefs cannot be inferred from an utterance without knowledge of what one means. We want theorems of the form ‘snow is white’ if and only if snow is white. Which concept of interpretation did Davidson have in mind? Which concept can his theory account for? On the assumption that each competent member of a linguistic community is by and large capable of interpreting all the possible utterances of a speaker in that community. Davidson contends that what one means by an utterance. where ‘s’ is replaced by a description of s. and not for instance. and so on. the challenge of radical interpretation is this: ‘we suppose we know what sentences a speaker holds true. Davidson employs. while Tarski was interested in a formal definition of truth for a formal language (1984: 134. his emphasis on notions such as ‘linguistic behavior’ or his interest in the ‘occasion of use’ etc. Following Quine. and what one believes.12 Meaning and Interpretation despair. a theory of radical interpretation basically describes what people already know. some of Davidson’s formulations seem to indicate that what he has in mind is a much wider question. or primitive. perhaps. what one means without knowledge of what one believes (1984: 195–96). and ‘p’ is replaced by a sentence that is true if and only if s is. As Davidson puts it. a T–sentence is a theorem of the form: ‘s is true if and only if p’. with appropriate modifications. that Davidson is anxious to retain the recursive aspect of the Tarskian model. The question is. is one’s prepositional attitude of holding sentences true or false in each particular context. All this would seem to imply that we should. Radical interpretation would then be a theory aiming at the explication of that which renders possible the understanding of linguistic communication in general. and when. How is this to be achieved? First it must be clear what is taken to be the data. For each sentence s of the object language. and conversely. For instance. and we want to know what he means and believes’ (1984: 145). (1984: 150) But once this model is applied to the interpretation of an object language. the radical interpretation of a natural language can be looked at in terms of a meta-language. which we would want to see as entailing empirically correct interpretations of the object language. understand Davidson’s project as much broader than an explication of sentence meaning. To account for this relation of entailment.

(The importance of this constraint will be clarified later. or more generally. to some extent. (1984: 152) The function of this principle should not be overstated. by and large. only describe an interpreter’s ‘linguistic competence’. Systematic relations must obtain between the utterances. reverting to most of his previous ideas. which in turn is characterized as having to be systematic. On his definition. and conventional (1986b: 436). however. however. of sentences. indeterminate (1984: 154). otherwise there would be no way of accounting for the semantic relations between words and the structure of sentences. and cannot account for anything further than this. . the ability to interpret idiolects. . is to choose truth conditions that do as well as possible in making speakers hold sentences true when (according to the theory and the theory builder’s view of the facts) those sentences are true. The principle of charity is based on the assumption that mistake or disagreement is only comprehensible against some agreed background (1984: 153). by and large. By the 5 Although not the most recent. mean x when used in other sentences in the same language. ignored. language is. namely what is the scope of this theory? I wish to argue that radical interpretation can only (if at all) be an explication of sentence meaning. in the 1989 Dewey lectures (Davidson 1990) he provided an impressive overview of his semantics. because it is a rather extreme case of linguistic idiosyncrasy. 6 Davidson’s focus on Malapropism is somewhat puzzling. it is not clear that Malapropism is a real phenomenon.) Furthermore. we are now in a position to answer my initial question.6 It is instructive to see how Davidson defines linguistic competence. or what he now calls ‘first meaning’. we can often understand a speaker even if her use of language is somewhat idiosyncratic. and not every potential disagreement one can think of. The critical reflections presented here are not restated in the lectures. without being so weirdly erroneous as Mrs Malaprop. I shall argue that this fact is instructive of an important aspect of the concept of interpretation. it is that which enables interpreters to interpret ‘first meanings’. Let me begin by considering Davidson’s (1986) critical reflections on his own theory. As Davidson warns. Indeterminacies will occur. Be this as it may. including his own theory of radical interpretation. that is. it must.5 Here he seems concerned with a question very similar to the one presented above.Radical Interpretation 13 The general policy . shared. but this is hardly surprising. Davidson claims that theories of meaning. The gist of Davidson’s argument in this article is that linguistic competence (thus defined) is insufficient to account for numerous instances of successful interpretations where the speaker’s use of language is in some way idiosyncratic. After all. First. the task in question is not an absurd one of making disagreement or error impossible. Davidson does not maintain that the theory will yield only one possible interpretation for each sentence of a natural language. a person’s ability to understand the meaning. in fact they are. If a word is used to mean x in a given sentence. and should not be regarded as grounds for objecting to the theory. Davidson focuses his attention on phenomena such as malapropisms. mostly. But this is an heuristic principle which serves to constrain a theory of meaning for a natural language. .

because ‘there are no rules for arriving at passing theories’ (1986b: 446. that ‘there is no such thing as language. the prior theory expresses how he is prepared in advance to interpret an utterance of the speaker. as compared with his previous writings (1984: 265–80). since Mrs Malaprop for instance. Prior theory would better be described as the ability to use the language. and how he wants him to understand that particular utterance of them’ (Dummett 1986: 461). the requirement that first meanings be conventional is of crucial importance: it points to the fact that the use of language is rule governed. For the speaker. 7 Davidson seems to have changed his mind on certain aspects of this point. while his passing theory is the theory he intends the interpreter to use. 8 Cf Dummett (1986: 467). the prior theory is what he believes the interpreter’s prior theory to be. Notably. (1986b: 442) Unfortunately. but cf Davidson (1990: 316).14 Meaning and Interpretation idea that first meanings must be shared. see also Hacker (1988). Lastly. Language could not be used for communication if the meanings of the words and sentences were not known (and known to be known) to both the speaker and the interpreter. it is even clearer that whatever it is that enables one to interpret an idiolect does not amount to a theory one possesses. phenomena such as malapropisms introduce instances of interpretation which are inexplicable in terms of an interpreter’s ‘linguistic competence’. Hence the rather unusual conclusion of his article. Thus the gist of his argument here is that the passing theory cannot be explicated in terms of linguistic competence. Davidson draws a distinction between ‘prior’ and ‘passing’ theories: For the hearer. it is not at all clear here whether Davidson is referring to the wellknown distinction between what a speaker means and what his words mean.7 Now we can return to Davidson’s main argument. Davidson refers to what is often called the public aspect of meaning. The line he draws falls between how the utterer ‘wants the hearer usually to understand certain words that he has uttered. As shown clearly by these characterizations of first meaning. one of Hacker’s main criticisms of Davidson’s work consists in the claim that Davidson does not realize the full implication of this essential feature of language. See Hacker (1988). In that case. . Davidson would perhaps have done better to retain the traditional distinction between speaker’s meaning and utterance meaning after all.8 With regard to the passing ‘theory’. I shall nevertheless go on using Davidson’s terminology. Yet it is doubtful that this is more successful in capturing what Davidson strives to account for. Accordingly. can hardly be said to have known the correct meaning of the words she uttered. This amounts to a cluster of capacities but not to a theory. Does it make sense to say that Mrs Malaprop has a theory about the theory she intends her hearers to use? Or that the hearers have a theory about her theory? Bearing these points in mind. while the passing theory is how he does interpret the utterance. not if a language is anything like what many philosophers and linguists have supposed’ (ibid). the term ‘theory’ is misleading here. More importantly. Dummett construes this distinction somewhat differently. emphasis mine).

as opposed to interpretation. for instance. though perhaps in a way that Davidson would not. we will end up with the conclusion that. Indeterminacy is a different matter. as a matter of principle. for instance. see also Kuhn (1970 ch 5). be extended to encompass passing theories. between the concepts of interpretation and semantic meaning. They can be respected and emulated. On the contrary. Under radical interpretation we assign to every sentence of the object language a T–sentence of the form: ‘“s” is true if and only p’. It is clear enough that Davidson now sees his theory of radical interpretation as.10 Hence the conclusion that interpretation should 9 10 For criticisms of this conclusion. rules should not be confused with paradigms.Radical Interpretation 15 The soundness of this last conclusion is not our concern here. this is the key to the distinction. To put it differently. an account of prior theories. or ‘ “s” is true if and only if q’. but such rules are normally unavailable as reasons or justifications for an interpretation. It can be the case that even when the evidence is exhausted. but not followed.9 We are interested in the possible scope of radical interpretation. as are. can be. To be sure. and those which are not. In explaining the meaning of a given expression. what is needed is an account of the distinction between those aspects of communication which are determined by rules. Interpretation. Deviating from an established paradigm—unlike failing to follow the rules of language—does not necessarily manifest a misunderstanding. see Hacker (1988: 169–71). This is so. ‘ “s” is true and only if p’. but Humpty Dumpty’s private ‘language’ is not language at all. for example. This definition makes no allowance for idiosyncrasies. rules of the correct use of language. how an interpreter can understand a speaker uttering ‘s’ to mean that p. It is limited to an explication of the concept of first meaning and cannot. Semantics. are nevertheless possible interpretations. Unconventional interpretations. like other intellectual activities. concerns those aspects of (linguistic) communication which are rule or convention governed. which Davidson’s radical interpretation obscures. given by Convention–T. But the problem we now face is not indeterminacy but idiosyncrasy. Dummett (1986). To my mind. . These are typically examples of what count as good or acceptable interpretations in the given domain (see Fish 1980). This is manifest in the kind of reasons one would typically provide for the explanation of the meaning of an expression as opposed to the interpretation of an expression. as the construction of what Davidson calls passing theories is underdetermined by rules or conventions. On the distinction between paradigms and rules. guided by the paradigms of interpretation prevalent in a certain ‘interpretative community’. But paradigms do not function like rules. whereas the correct T–sentence of ‘s’ is that it is true if and only if q (as in the case of malapropism). radical interpretation initially proposes a recursive characterization of the concept of meaning. interpretation is usually required because the issue is not determined by rules or conventions. idiosyncratic or crazy as they may be. On the other hand. What we need is an account of. at most. and often is. we typically refer to the rules of the pertinent language.

12 Properly speaking. no process of interpretation going on. But stipulative definitions are sometimes misleading. 201). I shall argue. ‘radical interpretation’ is not a coherent phrase. that is. at the very least. the concept of interpretation typically designates an activity. there is . and explain it to those who are unaware of the rule or its content. A crucial observation made by Wittgenstein in his discussion of following rules is that ‘there is a way of grasping a rule which is not an interpretation’ (Investigations. interpretation must consist. That is. but be seen as parasitic on the latter. there is a way of understanding a sentence or an utterance that does not consist in putting an interpretation on it. (Dummett 1986: 464)11 In short. as it requires the existence of a language in which.16 Meaning and Interpretation not be equated with understanding the meaning of an expression. this also shows that unlike the concept of grasping the meaning of an expression. . and I would assume that Davidson does not deny this. Even in the case of the supposedly simple thought that an utterance means what it literally states. does not constitute an interpretation of anything. Davidson must have meant this as a stipulation. interpretation is something which must be carried out. In this respect. 12 See also Hacker (1988: 168). the interpretation is stated. this observation. or most of the time. In other words. however. Dummett rightly observed that: when the hearer does not have to search for the speaker’s meaning. in one’s ability to specify (to oneself or others) how one understands a given expression. . perhaps not even as a stipulative definition. but the same point can be made with regard to other forms of communication. one does not interpret that which is determined by rules or conventions. . since it is of crucial importance. As we have seen. at the very least. . That. And in this case. Similarly. Let me expand on this point in some further detail. Dummett does not indicate any disagreement with this observation on Davidson’s part. Notably. ‘having that thought will not result in attaching the standard meaning to [her] utterance unless I know what that standard meaning is’ (ibid 464). then. people do not reflect upon the meanings of the words they use. Recall Davidson’s contention that ‘All understanding of the speech of another involves radical interpretation’ (1984: 125). as Dummett rightly emphasizes. he hears and thereby understands’ (ibid 471). eg visual arts or music. But now. but takes for granted that he is using words in just the way with which he is familiar. . ‘in the normal case . makes it clear that interpretation must be an exception to the standard instances of understanding expressions. and about which. Davidson’s stipulation obscures the special role that the concept of interpretation plays in the understanding of an expression. Cf Barnes (1988). if what it suggests is that the 11 Dummett is interested in the case of natural language. in the reflection upon the meaning of words and sentences or whatever it is we strive to interpret. As Dummett puts it. Of course it is true that in ordinary cases. the hearer simply understands. One can of course point to the rule or convention. knowing the language. It is equally clear that interpretation does consist. interpretation is closer to the concept of explanation than to that of understanding.

There is simply no inherent connection between the concepts of understanding and agreement. that any reflection on the meanings of words. PRAGMATICS A different attitude. as it were. ‘across-the-board basis’ (Davidson 1984: 153). often the best explanation is that which brings a certain disagreement to light. or even to stipulate. perhaps less ‘radical’ than those of Davidson’s original project. ‘A’ in the second phrase means something quite different). In any case. not to bits and pieces of it. I shall confine myself to the following remark: whatever form an account of something like a passing theory might take. or any subclass of language. and parasitic on it. The idea here would consist in the application of the principle of charity. so as to encompass a broader sense of interpretation. then it makes no sense to suggest. Thus it seems that theories of 13 This point is discussed in further detail on the basis of Wittgenstein’s account of following a rule. pragmatists are generally concerned with the problems posed by discrepancies between utterer’s meaning and sentence meaning. It would be wrong to suggest that a particular utterance or text. but with regard to a different set of assumptions. As Davidson himself emphasizes. such an account could not employ the principle of charity. In the next chapter I will consider some attempts to do this in the context of social explanation. . the principle of charity amounts to the claim that one cannot have a theory of meaning for a natural language whereby the bulk of the speakers’ beliefs would turn out to be false. should be interpreted with an underlying charitable aim. though largely motivated by the type of problem discussed in the previous section. between what an utterer means and what his words or sentences mean. in one form or another. If A is an exception to B. Roughly speaking. In other words. 2. Here.Pragmatics 17 explication of the meaning of expressions in natural language is basically a matter of interpretation. to elucidate the concept of interpretation by way of contrast: interpretation concerns those aspects of communication which are under-determined by semantic rules or conventions. perhaps it should be asked whether it is possible to extend the scope of Davidson’s theory. since this principle is not applicable to particular instances of interpretation. are two conceptually separate things. Before proceeding. the principle of charity makes sense only upon a thoroughly holistic. is to be found in theories of pragmatics. sentences. in Chapter 7. only more radically so. one should realize that Davidson’s use of ‘interpretation’ utterly obscures the conceptual point made here by Dummett. But this only makes sense with respect to language and thought as a whole. that is. of course. It also indicates that semantics can only be employed. is parasitic upon the prior knowledge of the ordinary or literal meanings. etc. if at all. that A is ‘radical B’ (unless.13 This leads to the conclusion that understanding or explaining the meaning of an expression and interpreting it.

that is. S. communication intention). literal meaning is not what is communicated. see Grandy and Warner (1986). as he called it) in terms of intentions to communicate. Thus. that of an interpreter’s ability to construct a passing theory. namely. As we have seen. Hence the possibility of discrepancy between what words or sentences mean (that is. In 14 Grice has since modified the details of his analysis in a series of articles and lectures. which is what interests semantics. According to Strawson’s (1964) reformulation. its public and conventional feature.14 The basis on which Grice’s theory may be understood is the distinction between two important senses of ‘meaning’: the meaning of an expression. in one form or another. the most we can get by truth-conditional semantics is the concept of first or literal meaning explicated in terms of sense and illocutionary force. however.18 Meaning and Interpretation pragmatics are concerned with basically the same question that we discussed above. it would not capture that aspect of language which renders it public and learnable. one way to view what pragmatics is about is to see it as an attempt to fill this gap between literal meaning and what is actually being communicated. to mean something by x he must intend— (a) S’s utterance of x to produce a certain response r in a certain audience A. See Strawson (1969). though. the point here is different. as I would prefer to put it.15 Whether or not this is a correct allegation against the Griceian model is not our immediate concern. He set out to provide an explication of the concept of someone meaning something by an utterance (non-naturally or non-standardly. However. an attempt to explicate the meaning of expressions in terms of intentions to communicate would leave at least one important aspect of meaning unexplained. What I want to claim is that this intuition. Searle’s argument cannot be explored in detail here. has led pragmatists (such as Searle himself) to employ the basic notions of sentence meaning derived from truth-conditional semantics. . Quite often. first meaning) and what an utterer means (that is. or. For a survey of Grice’s views on the subject. for a speaker. 15 The communication-intention theorists typically tend to provide an explanation of the public aspect of language in terms of its natural evolution. What is the connection between this analysis of meaning that such and such by an expression. Suffice it to say that the Griceian analysis of meaning in terms of intentions to communicate seems too private. (c) A’s recognition of S’s intention (a) to function as at least part of A’s reason for A’s response r. which was what interested Grice. The origins of pragmatics are traditionally associated with the Griceian communication-intention theory of meaning (Grice 1957). the question of an interpreter’s ability to understand an expression (or an aspect of it) which is under-determined by semantic rules. it regards the lack of a conceptual account of what it is for a sentence to have a meaning in this public-conventional sense. and the meaning of the expression? Can the latter be analyzed in terms of the former? In at least one important respect the answer is negative. as it were. (b) A to recognize S’s intention (a). As Searle (1986) has rightly observed. and someone meaning that such-and-such by a given expression.

The key to this ‘reconciliation’ is usually described in terms of the necessary and sufficient contextual knowledge which is required to understand an utterance. as opposed to the more general and lasting. Notably. Yet in the . Some familiar uses of indirect speech-acts are good examples of this phenomenon. some bizarre experiment with cats and mats held in outer space by two astronauts. many instances of communication. He argues that the literal meaning of a sentence has application only relative to a set of contextual or background assumptions. are nevertheless conventionally determined. However. a question about possession. Let me mention two such general cases where the success of communication is context-dependent in a non-conventional manner. is not that background knowledge is required so as to determine literal meaning. though differently presented. though they require some knowledge which goes beyond the literal meaning of words and sentences. and the mat. The contextual assumptions which are conventionally determined can be semantically represented and added to the sentence. but I will present Searle’s more recent formulation of this idea (1978). but a request to provide a certain piece of information. the gravitational force surrounding us. The first is the grammatical under-determinacy of literal meaning. the cat. The word ‘context’ is usually associated with elements of locality and contingency. though not semantically. the context is a matter of convention. as far as Searle’s argument is concerned. Consider the assertion ‘The cat is on the mat’. but that this background knowledge is in principle semantically indeterminable. In normal circumstances we know what this sentence means only because we share a whole set of assumptions about. this is not always the case: the pertinent context. of course. However. the question ‘Do you have the time?’ is not. the literal meaning of the sentence is variable. the crucial point. knowledge of which is required to grasp the appropriate communication intention of the speaker. determined. for instance. the grammatical mood of the sentence). To mention one such example. This position can be traced back to Wittgenstein’s notion of ‘form of life’ as a prerequisite for language use (1958. for example. ‘the cat is on the mat’ has different truth conditions in each of the two situations and this variance is wholly context dependent. 241–42. Nevertheless. But. Hence there is a certain discrepancy here between the literal meaning (in this case. this is an instance of communication which is conventionally. Yet were we to assume a very different environment in which ‘the cat is on the mat’ was uttered. In such cases. is often of a kind which is not governed by rules or conventions. it is something particular and immediate. it may be understood to attempt a ‘reconciliation’ between truth conditional and Griceian semantics. as we shall see in a moment.Pragmatics 19 other words. is the view that the understanding of literal meaning is always preconditioned by some kind of background knowledge. and the actual content of the communication. It is safe to say that on hearing this sentence no one would assume that the cat was hanging on the edge of a vertically standing mat. that might be the precise meaning of such an utterance. A rather familiar idea. sects 142. Picture. see also Dreyfus 1980). in normal circumstances. Yet the concept of context should be treated with caution here.

Sperber and Wilson (1986: 16–17).16 The second. not to speak of the problematic nature of the mental sciences. the implicature in this case is quite obviously the mutual knowledge that a particular event is supposed to begin at a particular time. that successful communication depends on the mutual knowledge of the relevant contextual background. Yes. any literal statement of these contextual assumptions would itself be context dependent in the same way. however. as the example shows. or an aspect of it. See Strawson (1964: 157). . the contextual assumptions cannot be realized in the semantic structure of the sentence. Hence. eg of the kind practiced by Searle. as we have seen. and more familiar type of situation in which the success of communication depends on context is the Griceian notion of ‘implicatures’. we are exactly five minutes late. which is not determined by rules 16 See also Searle (1980: 221–32). Assuming the success of this instance of communication between A and B. for example. the inference of the communication content from the literal meaning and the contextual background assumptions is. it apparently concerns the very same problem tackled by pragmatics. . it is a non-demonstrative inference) (Levinson 1983: 116). Interpretation. The notion of implicature stands for the contextual assumptions which are required to account for a successful instance of communication where the context consists in a particular state of affairs. First. to the extent that interpretation concerns communication. Why pragmatists find these features of implicatures so problematic is itself somewhat mysterious. Consider. that of an interpreter’s ability to understand an expression. but we need not go into this here. Do you have the time? B. Ever since Grice presented this notion it has become the most widely discussed issue in the literature of pragmatics (Levinson 1983: 97–166). the following conversation: A. is not a rule––or convention––governed activity. Secondly. is the cause of a great deal of obscurity in pragmatics. which makes it necessary to have third-order assumptions . and so on indefinitely. Pragmatists have found it difficult to specify the condition of mutual knowledge without falling into an infinite regress: the hearer and speaker must not only share the relevant contextual knowledge but also have a second-order knowledge of what is the knowledge they share.18 Suffice it to say that in such cases communication is clearly under-determined by rules or conventions. Pragmatists find two main features of implicatures puzzling. 18 One reason seems to be that pragmatics literature on implicatures often oscillates between philosophical inquiry. The meaning of (probably) any sentence can be changed by an indefinite number of sets of contextual assumptions. Searle argues (1978: 216). they also must assume that they share these second-order assumptions. First. This oscillation between philosophy and science. namely. logically indeterminate (that is.17 Second.20 Meaning and Interpretation present case. All this would seem to suggest that the interests of pragmatics and interpretation converge at least on one point: both address that aspect of communication which is not explicable in terms of following rules or conventions. knowledge of which must be shared by the speaker and the hearer. that is because they are indefinite in number. 17 . and attempts to provide scientific or quasi-scientific explanations of the mental processes involved in communication.

namely. that is. between the interpretation that a literary critic assigns to a phrase in a poem. manipulative speech-acts etc. hearing it as ‘Jim is a good football player’. Nevertheless. an utterance or a text? With regard to this question. From the perspective of pragmatics. then. there is at least one important respect in which the concerns of pragmatics differ from those of interpretation. except in particular circumstances. A THIRD MEANING OF MEANING? Pragmatics is basically interested in the question of how communication is being actually achieved. In both cases. the act of communication has clearly failed. See Strawson (1964: 162). 3. sect 2. realizing S’s intention (b). and taking up the perspective of interpretation. Suppose further. that Jim is a bad football player. Perhaps there is no substantial difference. it seems. Or is there some difference? Arguably. This consists in the potentially different presuppositions held by each on what is considered to be the relevant criteria of success. so long as H recognizes that this belief was what S intended to convey to him. (c) A’s recognition of S’s intention (a) to function as at least part of A’s reason for A’s response r. an act of communication succeeds if and only if the hearer recognizes S’s intention (b) (Sperber & Wilson 1986: 28). Recall the Griceian model of a speaker’s communication intentions: for S to mean something by x. We judge the act of communication successful even if H fails to believe that Jim is a bad football player. intending (so we assume) H to believe this to be true. what is it to propose an interpretation of. the criteria of success for a communicative act would be defined in terms of grasping speaker’s intentions. when it is not part of the speaker’s intention to secure a certain effect he strives to achieve by means of recognition of the intention to secure it. Suppose S tells H that ‘Jim is a bad football player’. Suppose H misunderstood S’s utterance. he thinks S has a good reason to lie). since H has not recognized S’s intention to communicate that belief. S has succeeded in creating the appropriate response in H. eg in cases of insinuating. we must ask a different question. for example.)19 But now. See also Chapter 8.A Third Meaning of Meaning? 21 or conventions. the interpreter must be engaged in the same kind of reasoning. and our humdrum interpretations of expressions which go beyond the literal meaning of the sentences we encounter. the idea of successful communication is only one possible 19 This is so. As it happens. (b) A to recognize S’s intention (a). he must intend–– (a) S’s utterance of x to produce a certain response r in a certain audience A. that for some reason he does not believe S (for instance. that is. for instance. setting aside the interest in how communication is achieved. Consequently. and hence he now believes the opposite. that is. Let me explain this point. H’s recognition of S’s intention (b) is not only sufficient but also a necessary condition for the success of communication. . intention (b) has not been conveyed. (Note that in normal circumstances.

particularly in the context of interpretation of works of art. . understood in terms of communication intentions would seem more suitable. one is not offering an interpretation but rather expressing a certain reaction or emotion or preference. In using it. for instance. but. if this thesis is correct. and the like. thus defined. it is clearly a counterfactual. Admittedly. Presumably. But is it also a necessary one? Not according to many philosophers and art critics. suggests that the speaker intended to communicate in making the utterance’ (1995: 442). So is there a third meaning of ‘meaning’ which might do the job?20 It is sometimes suggested. that the semantic notion of meaning (that is. cannot be presented as interpretations at all. Interpretation purports to be a statement about the object interpreted. Therefore. in saying that ‘my wife means a lot to me’. etc. This sense is rather remote from our present concerns. readily available to the intended audience.22 Meaning and Interpretation relevant consideration. which is ‘utterance meaning’ that is neither the (semantic) sentence meaning nor the (pragmatic) speaker’s meaning. at least in the semantic context. They argue that successful communication is not the only (or. need not necessarily coincide with the actual speaker’s meaning. and hence. that interpretative statements amount to formulations of the meaning of an object for the interpreter (or. The pragmatic notion of ‘meaning’. and we encounter its use in many interpretative contexts. as I suggest below. which is. I do not ignore this possibility. On the other hand. as some claim. Thus we can say that successful communication is at least one criterion for understanding an expression. Yet such reactions to objects. not about the subject who offers the interpretation. is ‘what evidence. for some particular community interested in the relevant object). We have encountered two senses of ‘meaning’ which are potentially relevant: the meaning of an expression. but it is claimed that it fails to exhaust the full scope of interpretation. which is normally defined in terms of communication intentions. In order to pinpoint the issue. ‘utterance meaning’. . and someone meaning that such-and-such by an expression. the way it is experienced by her. Interpretation. when 20 Goldsworthy (1995) suggested that there is another sense of meaning that I ignore here. among whom it is a very familiar thesis that interpretation is not confined to an attempt to grasp the communication intentions of the artist. not even a relevant) criterion for the successful interpretation of a text or an utterance. I have assumed. basically determined by rules or conventions.) Indeed. consists in the attribution of meaning to an object. In one clear sense it is of course true that one understands an expression if one recognizes the pertinent communication intentions of the speaker. . I have also argued that the concept of interpretation is not explicable in terms of following rules or conventions. let me reiterate some of the conclusions reached so far. the term ‘meaning’ is used here in a very different sense. we still lack a conceptual account of what it is that enables one to make such interpretative statements. ‘meaning of . (Or else the subject would become the real object of the interpretation. Goldsworthy claims. even if they are reactions to works of art. and I shall assume that at least contemporary interpretative practices render it undeniable. one refers here to expressions about the impact of the work of art on the interpreter. as it would be.’) is not the appropriate one for the purpose of explicating the concept of interpretation. I would regard it as a special case of counterfactual speaker’s intentions. Since he makes it quite clear that the utterance meaning.

The point here is actually twofold. that is. nor the meaning intended by the speaker/author. an interpretative statement is either a statement on the communication intentions of the actual speaker. that an interpretation of a certain novel can purport to explain what the novel meant for the generation in which it was created. interpretations need not be based on the intentions of actual authors. meaning that such-and-such by an act or expression. it may be possible to make some inferences about the kind of meanings that the text can possibly bear. despite the fact that the author may have had no such intention. namely. for example. But it is crucial to remember that not everything we say about a work of art. In general. and so forth. or in a weaker version. .22 In other words. It defines the parameters employed throughout the 21 Exceptions are conceivable. What the text means for someone rarely entails anything about what the text means. presupposed by the particular interpretation offered. the ways in which it has been used or the social roles it played. for whom the text meant something. amounts to an interpretation of it. Note that generally. and x is not the literal meaning of T. We can describe or speculate about the ways in which a text has been received by a certain community (or individual). First. for instance. or some later generation of readers. Given that x is the meaning attributed to. or any other text. in terms of the intentions one could attribute to a fictitious author characterized in certain ways. a counterfactual statement can be either contrary to the facts. Of course. and the like? Of course we can say that. Only those aspects of a text which can shed light on its meaning form part of the text’s interpretation. nor is it the meaning of T intended by its author. but these would not be instances of interpreting the novel. as is more often the case. At the same time. This characterization of ‘the author’ constitutes a certain framework of reference. They may have misunderstood it entirely (as they certainly did with Nietzsche’s work). For example.A Third Meaning of Meaning? 23 a literary critic claims that a certain novel is about such-and-such. for instance a text T. and not about her (or somebody else’s) reaction to it.21 Hence we are back to the question of what can be the meaning of ‘the meaning of a text’. 22 Cf Fish (1983a: 282–83). that is. the meaning of an act or expression is understandable in terms of counterfactual intentions. I will suggest that the answer to this question consists in the fact that meaning is assigned by a counterfactual statement. and all this could be very interesting in its own right. as it were. regardless of the facts. whose identity and nature are either explicitly defined or. then the attribution of meaning x to T can only be understood as the contention that on the basis of certain assumptions a certain fictitious or stipulated speaker would have meant x by expressing T. that interpretation is essentially a matter of attributing intentions. or else it must be a counterfactual statement. characterizing the communication intentions of a stipulated hypothetical speaker. in the pragmatics sense of ‘meaning’. if it is neither its literal meaning. the weaker version is more relevant here. But are not there counter examples? Can not we say. But these are typically very problematic inferences. I doubt that much can be learnt about the meanings of Wagner’s work from the fact that it was so warmly received by the Nazis. the critic wishes to make a statement about the meaning of the novel. though. If there is a whole community of readers.

one might ask. There is. conceiving the author of Hamlet in terms of some ideal representative of a certain genre. there is no conceptual flaw in the counterfactual attribution of intentions. The truth conditions of the former would be given in terms of the mental events (or facts) that those statements purport to describe. and be presumed or presented at various levels of abstraction. it would seem that psychoanalysis presents an intermediary case.24 Meaning and Interpretation interpretation in question. from the concrete author. It may be arguable that the attribution of counterfactual intentions does not concern intentions at all. at least not if we think of intentions as mental events. combining elements of interpretation and scientific explanation in a rather intricate manner. and those which do not. for instance. The characterization of a fictitious or stipulated author can vary along various dimensions. or different generic affiliations. or had he been aware of Freud’s conception of the Oedipus complex. that the object of interpretation is a certain character in Shakespeare’s Hamlet: interpretations at the most concrete level typically attempt to discover Shakespeare’s intentions—that is. or whatever else that might affect the meaning of the object in question. Finally. My thesis is confined to the explication of the grammar of interpretation. and was not meant to imply anything further. With respect to the level of abstraction. for instance: what Shakespeare would have intended had he written Hamlet in the twentieth century. I cannot hope to dwell on this matter in any satisfactory way. Generally speaking. . for that matter) that the concept of intention designates a mental event. that while these parameters are potentially variable. the logic of interpretative statements is such that they are typically reducible to the attribution of intentions. Hence also. Still. of course. perhaps. though. and so on. but it is beside the point. for example. At a somewhat more abstract level. does not lie in the grammar of interpretation. a conspicuous logical difference between actual and counterfactual attribution of intentions. that is. despite his unawareness of them while writing. one might also consider those intentions which one presumes that Shakespeare would have been willing to recognize as his own.23 Hence there is no need for a third meaning of ‘meaning’ to explicate the concept of interpretation. we could say that the most concrete characterization presupposed is the one which coincides with the actual. historic author. The thesis advocated here is not meant to deny (or to confirm. In other words. which resides in the nature of the truth conditions of each of these classes of statement. The point is. This is not meant to suggest that 23 Psychoanalytic interpretations may present one general exception to this thesis. the difference between interpretations which confine themselves to attempts to reveal the intentions of the author. so to speak. one can abstract even further by departing from an abstraction of Shakespeare altogether. Say. As the status of psychoanalysis is itself subject to extensive controversy. The dimensions would vary. statements of this kind would be verifiable in ways which are unavailable with respect to counterfactual statements. There is. a grain of truth in this. One could then move away. Progressing to a more abstract characterization. The difference consists in variant characterizations of the ‘author’ whose intentions the interpreter strives to illuminate. for example. however. the ones he actually had—with respect to the character in question. against different historical settings. employing various degrees of abstraction.

and parasitic on. the less creative freedom the interpreter allows himself. And vice versa. one of the interesting questions about the concept of interpretation is whether there is any one criterion of success that is inherently suitable to all instances of interpretation in a particular field. as suggested by Dworkin. the prior knowledge of literal meanings. provide the basic criteria of success for the proposed interpretation. Interpretation. on the basis of which the speaker— whether actual or fictitious—is characterized. For the time being. Generally speaking. for instance. or better. however. whereas the appropriate notion of meaning is given in terms of communication intentions. 24 Stoljar (2001) suggests that counterfactual intentions. is a question I would wish to discuss at a later stage. But these logical differences do not affect the possibility of counterfactual attribution of intentions. this is not meant as more than a very general and rough observation. between interpretation and invention. as it normally concerns those aspects of communication which are under-determined by rules or conventions. I have argued. Whether such a distinction can be substantiated in a satisfactory manner. This view of interpretation coincides with the thesis. that this is one of the reasons for the possible indeterminacy of interpretations in legal and other contexts. one commits oneself to certain criteria. Consequently. which can be made now: it is arguable that the more abstract the characterization of the fictitious author. to the problem of distinguishing. The difference is only a logical one. To be sure. I think. Likewise. in this case historic. It is often much more difficult to know what an author actually meant than what he would have meant had he been working on the basis of certain assumptions which we can attribute to him. that are taken to determine the success or failure of the particular interpretation offered. To the extent that one strives to retrieve the actual author’s intentions. consists in the imposition of meaning on an object. but these doubts pertain to a very different dimension of the matter than the one I have been concerned with. or doubt their objectivity. are often vague and therefore engender a considerable amount of indeterminacy. these doubts pertain to the distinction. that interpretation is an exception to. as it were. the presumptions which are taken to determine this characterization would provide the criteria of success for the particular interpretation offered. the more one commits oneself to retrieving the intentions of the actual author. will be discussed in the next chapter. the greater amount of creativity the interpretation allows. if the author is characterized in terms of some ideal representative of a certain genre. because they are counterfactuals.24 Much depends on the particular assumptions on the basis of which the given interpretation is conducted. for instance. She rightly claims. or perhaps even in general. There is one point. Perhaps one can question the point of making such counterfactual statements. whose supposed identity and characterization determine the criteria of success presumed by the kind of interpretation offered. . The possibility that there is. let me summarize the conclusions that I see as justified at this point. It is important to realize. advocated in the first section. that those assumptions. however.A Third Meaning of Meaning? 25 interpretative statements about actual intentions are somehow easier to verify. This still leaves open the possibility of attributing intentions counterfactually to a fictitious speaker.

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the framework of Dworkin’s substantive argument runs as follows: 1. The interpretation of a social practice. In substance. A very similar framework underlies Dworkin’s methodological argument: 1. the substantive critique of legal positivism and the methodological critique of analytical jurisprudence.3 Dworkin’s Theory of Interpretation and the Nature of Jurisprudence D WORKIN’S THEORY OF law as interpretation is a very complex challenge to analytical jurisprudence in general and legal positivism in particular. Dworkin aims to undermine the positivist insight that a clear distinction exists between law and morality. and independent of. Therefore. 3. there is no analytical distinction between a theory about the nature of law and a theory of adjudication. every conclusion about what the law is. Roughly. Analytical jurisprudence is based on the assumption that the general question of ‘What is law?’ is distinct from. both legal theorists and judges are engaged in an interpretation of a social practice. namely. Therefore. 2. The concept of interpretation plays an essential role in both of these critiques. interpretation necessarily involves evaluative considerations. At the methodological level. 5. 2. 4. Therefore. the question of ‘What is the law?’ on any particular issue in a given legal system. namely. . namely. In fact. purports to present the practice in its best moral light. As he now sees it. Dworkin strives to undermine the traditional distinction between an analysis of the concept of law. Each and every conclusion about what the law is in a given case is a result of interpretation. an attempt to impose the best available interpretation on a given practice. both theorists and practitioners are basically engaged in the same type of reasoning. the general argument is very similar in both of these cases. A theory about the nature of law is an interpretation of a social practice. Interpretation is essentially an attempt to present its object in the best possible light. and the interpretation of what the law is in particular cases. Any interpretation of the law is basically an interpretation of the legal practice. And therefore. The challenge is both substantive and methodological. an attempt to present the legal practice in its best moral light. necessarily involves evaluative considerations. 4. 3. Dworkin challenges this traditional distinction. like law. both amount to the same type or reasoning.

this chapter is mostly about the nature of interpretation and the relations between theory and practice. constructive interpretation is a matter of imposing purpose on an object or practice in order to make of it the best possible example of the form or genre to which it is taken to belong. namely. my emphasis) There are three main insights about the nature of interpretation which are present here. I shall argue. evaluating some of its strengths and weaknesses. A discussion of this third point will be postponed to the next chapter. by a certain construction of a hypothetical speaker. Second. And I have also argued that this intentional grammar of interpretation can either refer to the intentions of an actual speaker. and then I will proceed to focus on the methodological argument. or else. that an interpreter can make of a practice or a work of art anything he would have wanted it to be. I think that Dworkin’s starting point is very similar. The gist of the critic is. . Here I will be concerned with the former two. is the following: Interpretation of works of art and social practices. Roughly.28 Dworkin’s Theory of Interpretation and the Nature of Jurisprudence The purpose of this chapter is to provide a critical analysis of these arguments and the ways in which they are intertwined. . . He also maintains that interpretation is concerned with intentions or purposes. beginning with the question of why the best? Why should every interpretation of an object or text strive to present . that interpretation is essentially genre-dependent. . But the purposes in play are not (fundamentally) those of some author but of the interpreter. to a counterfactual intention presupposed by the kind of interpretation offered. as he calls it. meaning that such and such by a given expression. particularly about the nature of interpretation. First. is indeed essentially concerned with purpose not cause. however. The gist of this constructive model. that is. that the first premise of the framework argument is false: it is not the case that every conclusion about what the law is. But again. THE CONSTRUCTIVE MODEL OF INTERPRETATION I have argued in the previous chapter that interpretation is essentially concerned with meaning in its pragmatic sense. 1. A critique of Dworkin’s substantive argument against legal positivism will be discussed in later chapters. as Dworkin immediately clarifies: It does not follow . the jurisprudential conclusions do not follow. . And third. that there are certain constraints that determine the limits of possible interpretations of a given object. (1986: 52. offering a critique of Dworkin’s conception of the relations between legal theory and legal practice. I will argue that although some of Dworkin’s premises are true and very insightful. that interpretation strives to present its object in its best possible light. And. I will begin with a brief presentation of Dworkin’s constructive model of interpretation. necessarily depends on interpretation (Chapter 7). and he takes the construction of such purposes as essential to what interpretation is all about. the history or shape of a practice or object constrains the available interpretation of it.

deriving from Dworkin’s assumption that the only alternative to this constructive model is the traditional author’s intention model. relies on the fact that artists typically intend their works to become cultural entities. The other line of thought is less direct. of course. So it seems that in order to substantiate the central thesis of the constructive model of interpretation. According to the latter. if the assumption is that what the text means is only what its author intended it to mean. can be put forward. say. The first clue is in a footnote: An interpreter is bound to strive for the best possible presentation of the object of interpretation. detached from their original intentions and purposes. this is what Dworkin’s assumes here. So let us take up these two points in turn. as a better novel. The first argument. Dworkin claims. which draws most of its intuitive support from examples in the realm of works of art. which he rejects for various reasons. of course. that is. If a better reading of the text is available. Dworkin only offers two clues to his answer. If you want to criticize someone’s thesis. it would seem to be rather pointless if we insisted on rejecting that interpretation in favor of the one which presents the novel in a worse light. so to speak. Thus. the artist would rather have it stand on its own. It does not mean. purposes. and according to one of them the novel emerges in a better light. the author’s intent model. But unless you try to make the best of it first. you are not going to convince anyone of the cogency of your critic unless you have tried to present the object of your critic in its best possible light. there is little hope in convincing anyone that it is a failure. This is the kind of intuition we are familiar with from philosophical argument as well. n 12). Dworkin must refute its obvious rival. so you seek out the author’s intentions only to find out that she had intended her intentions to be ignored. or at . but not an interpretation of it. that anything you try to interpret must be presented as something valuable or particularly successful. interpretation is nothing but an attempt to retrieve the actual intentions. The only possible alternative Dworkin sees to this heuristic assumption is the author’s intent model. Perhaps Dworkin’s intuition is clear enough: If two interpretations of. Dworkin has two main arguments against the author’s intent model of interpretation. the question of presenting the text in its best light does not arise. Perhaps it is something deeper about the nature of art.The Constructive Model of Interpretation 29 it in its best possible light? One who expects a detailed. For better or worse. then. at least in the realm of the arts. You think that the text means what the author intended it to mean. the interpretation of the text would only consist in whatever it is that we can find out about the author’s intentions. Once a work of art had been created. that the author of the relevant text had actually had with respect to various aspects of its meaning. argumentative answer to this crucial question is bound to be disappointed. perhaps. Therefore. Or at least. a novel. because ‘otherwise we are left with no sense of why he claims the reading he does’ (1986: 421. etc. Perhaps it is not accurate to say that this just may happen. it will often happen that the attempt to apply the author’s intention model of interpretation would turn out to be self-defeating. that would be an interesting critique.

Thus. An interpreter may argue. First. strives to present its object as the best possible example of its kind. when the specific generic affiliation is not clear. say. at least to some extent. We can only interpret a text if we have a sense of what kind of text it is. In other words. In any case. Some artists may simply not share the kind of vision it involves. after all. and another may think that it is actually a novel. you may find out that the intention you rely upon does not exist. This assumes that it is impossible to interpret anything without first having a sense of what kind of thing it is. If you argue that author’s intentions should be ignored because it is the intentions of the authors that they should. however. even if the classification is tentative or rather abstract. of the genre to which it is taken to belong. Even when the generic affiliation is the issue. one would still have to decide which affiliation presents the work as a better work of literature. perhaps the author of your text actually wanted his particular intentions to be relevant for the interpretation of his work. even in the realm of works of art. it is doubtful that the argument can be extended to the realm of law without begging the question against its factual assumptions. actually. we must have a sense of what kind of thing it is that we strive to interpret. as a piece of literature. art in the modern world. what is the genre to which it belongs. that works of art are typically created with such an intention to become cultural entities. both of them concerning its potential scope. In particular. or if that is in doubt. according to Dworkin. But there are two problems about this argument. On the face of it. Trying to refute the author’s intention model on the basis of assumptions about authors’ intentions is just too precarious and unstable. because me must also have a view about the . and thus perhaps it could not be extended to other cases. if there is a general argument against the author’s intention model. a deeper insight here. Dworkin does have another argument against the author’s intentions model which is actually much more nuanced and insightful. and so forth. we need to get a better sense of the ways in which interpretation is genredependent. that is. for instance. also tend to share this intention that their intentions not be taken into account? It is very doubtful that they do. There is. this argument which is based on the ways in which artists tend to view their creative activities does seem to derive from certain aspects of the nature of art. Is it safe to assume that those who create legal texts. we need to ascend in a level of abstraction and try to decide which generic affiliation of the text would present it as a better example of the higher-level affiliation. however. Dworkin. this may sound too rigid. that Beckett’s Mercier and Camier is best read as a play. need not deny any of this. detached. from the artists’ particular intentions. sometimes we do seem to be engaged in an interpretation of a text or object even if we are not quite sure what the appropriate generic affiliation of the text is. as a work of art.30 Dworkin’s Theory of Interpretation and the Nature of Jurisprudence least. for example. it must be a different kind of argument. there is nothing necessary or essential to this characterization. Why would you ignore that intention now? More importantly. In order to understand it. like legislators and judges. And sometimes the appropriate generic affiliation is precisely what is at dispute between rival interpretations of an object. An interpretation. So this self-defeating argument might defeat itself.

The Constructive Model of Interpretation 31
values which are inherent in that kind or genre. Unless we know what makes texts
in that genre better or worse, we cannot even begin to interpret the text. You cannot begin to think about the interpretation of a novel without having some views
about what is it that makes novels good (or bad), and you cannot interpret a poem
without having a sense of what are the values we find in poetry (or, in poetry of
that kind) and so on. If you propose a certain interpretation of a novel, for example, you must rely on some views you have about the kind of values which make
novels good and worthy of our appreciation. Otherwise you could not explain why
should we pay attention to the kind of interpretation you propose, why pay attention to the aspects of the work you point out and not to any other. So I think that
Dworkin is quite right to maintain that without having some views about the values inherent in the genre to which the text is taken to belong, no interpretation can
take off the ground. The values we associate with the genre partly, but crucially,
determine what would make sense to say about the text, what are the kinds of
meaning we could ascribe to it.
This insight also explains, however, the real nature of the debate about author’s
intentions in interpretation. As Dworkin explains,
the academic argument about author’s intentions should be seen as particularly abstract
and theoretical argument about where value lies in art. (1986: 60)
I am not arguing that author’s intention theory of artistic interpretation is wrong (or
right), but whether it is wrong or right and what it means . . . must turn on the plausibility of some more fundamental assumption about why works of art have the value their
presentation presupposes. (1986: 61)

This is very important. Those who maintain that the particular intentions of, say,
a novelist, have a bearing on what the novel means, must also maintain certain
views about what makes novels valuable and worthy of our appreciation. They
must think that understanding what the author had strove to achieve, or the message the author wanted to convey, are the kind of considerations which bear on the
novel’s meaning, which also assumes that they are the kind of considerations
which are related to what makes novels valuable. And vice versa, of course. If you
deny the relevance of the novelist’s intentions that is only because you have certain
views about what makes novels valuable, views which are detached from the
values we associate with the communication aspects of literature or perhaps art
in general. Needless to say, art is just an example here. As we shall see later, a very
similar line of reasoning applies to the possible roles of the intentions of legislators
in the interpretation of statutes (Chapter 8), and the constitution (Chapter 9).
Whether it makes sense to defer to such intentions must also depend on a theoretical argument about where value lies in the relevant genre, namely, the authority of legislation (or of a constitution).
Thus, the conclusion so far is that the author’s intent model of interpretation
only makes sense as an instance or an application of the constructive model. It
does not compete with it. Whether it makes sense to defer to the intentions of the
author or not is a local issue, specific to the genre in question, and depending on

32 Dworkin’s Theory of Interpretation and the Nature of Jurisprudence
the values we associate with the latter. Does it prove Dworkin’s point that interpretation must always strive to present its object as the best possible example of the
genre it is taken to belong? It would prove the point only if we agreed with
Dworkin that the only alternative to the constructive model is the traditional
author’s intentions model. But this is not a correct assumption. Interpretations
need not strive to present the text in its best light; they could simply strive to present it in a certain light, perhaps better than some, worse than others, but in a way
which highlights an aspect of the meaning of the text which may be worth paying
attention to for some reason or other. Let us recall that Dworkin’s insistence on
‘the best’ derives from the assumption that unless one strives to present the text in
its best light, ‘we are left with no sense of why he claims the reading he does’ (1986:
421). But this simply need not be the case. And sometimes it just cannot be the
case. Let me clarify. There are two points here: one about the motivation and interest in various interpretations, and the other about the limited possibilities of an all
things considered judgment about what is the best.
First about motivation, then. Dworkin’s assumption that unless one strives to
present the text in its best light we would have no reason to pay attention to the
interpretation offered, is just not true. We are familiar with many interpretations,
in the realm of works of art, and others, where we have a very good sense of why
the interpretation is interesting and worth paying attention to, even if it does not
purport to present the text in its best light. For example, a psychoanalytical interpretation of Hamlet would be very interesting and certainly worth paying attention to, even if it does not necessarily render the play better than other, more
traditional interpretations of it. It simply brings out a certain aspect of the play
which is interesting on its own right. Perhaps it contributes to a better understanding of Shakespeare’s work, highlighting aspects of it hitherto unnoticed,
enriching our understanding of the subtleties and richness of the work, and so
forth. It can do all this without assuming that the particular interpretation offered
presents Hamlet in its best possible light. And the same thing can be said about,
say, a modern adaptation of Hamlet set in a contemporary setting, or perhaps even
a parody of it. Thus, the general assumption that without striving to present the
text in its best light we would have no sense of why the interpretation is worth paying attention to, is simply groundless.
Regardless of the question of motivation, however, there is also a question about
possibilities. As several commentators have pointed out (eg Finnis, 1987: 371),
Dworkin’s insistence on the best possible light rests on the assumption that in each
and every case there is the possibility of an all things considered judgment about
what makes a given work valuable, what makes it the best possible example of the
genre to which it is taken to belong. But this assumption, it is rightly claimed,
ignores the problem of incommensurability. It is a rather prevalent aspect of the
evaluative dimensions of works of art, and many other possible objects of interpretation, that often there is no possibility of rendering an all things considered
judgment about their relative merits. There is simply no such thing as the best.
Some interpretations may be better, or worse, than others, but none could be

Theory and Practice 33
claimed to be the best. That is so, simply because some of the evaluative comparisons are incommensurable. The incommensurability of values consists in the fact
that there are certain evaluative comparisons in which it is not true that A is better than B, and not true that A is worse than B, and not true that A is on par with
B. That is typically so because A and B are mixed goods, comprised of numerous
evaluative dimensions, and they just do not have a sufficiently robust common
denominator which makes an all things considered judgment possible. There are
numerous things that make novels valuable, for instance, and one interpretation
may render the novel more valuable on certain dimension, while another
interpretation may make it more valuable on other dimensions. Often it would be
simply impossible to say which one of them, all things considered, is better (or
worse). Think of being asked which novel is the best that you have ever read; you
would probably remain completely baffled, unable to answer. It is a silly question,
you would say, and rightly so.
If this is so obvious, why does Dworkin deny it? What is it in Dworkin’s theory
that makes him insist on the possibility of presenting an object of interpretation in
its best possible light? I think that the answer to this puzzle is to be found in
Dworkin’s jurisprudence, not in his general theory of interpretation. The latter
makes perfect sense without this problematic element. As I will argue below, it is
Dworkin’s attempt to derive from his theory of interpretation certain conclusions
about the nature of jurisprudence that explains his insistence on this element of
interpretation. Thus, in the following sections, I will concentrate on Dworkin’s
critic of analytical jurisprudence on the grounds that legal theory can only be an
interpretation of a social practice and, as such, it can only be the same kind of
interpretation which is characteristic of the practice itself, namely, evaluative,
moral and political in its essence. As we will see in detail below, this conclusion
ultimately depends on Dworkin’s understanding of the constructive model of
interpretation and the problematic idea that interpretation must always attempt
to present its object in the best possible light.

2. THEORY AND PRACTICE

In some social practices, notably law and the arts, Dworkin claims, the participants
develop a complex ‘interpretive’ attitude towards its rules and conventions, an
attitude including two components:
The first is the assumption that the practice . . . does not simply exist but has value, that
it serves some interest or purpose or enforces some principle—in short, that is has some
point—that can be stated independently of just describing the rules that make up the
practice. The second is the further assumption that the requirements of [the practice]
. . . are not necessarily or exclusively what they have always been taken to be but are
instead sensitive to its point. (1986: 47)

Unfortunately, Dworkin does not identify the kind of social practices which can be
said to display this interpretative attitude. My suggestion is the following: the

when the rule functions as a coordinative factor such as the one determining on which side of the road cars are driven. are only intelligible against the background assumption of a purpose or value that the practice is taken to enhance. Not all the social phenomena where people’s behavior conforms to rules are social practices. In other words. the point is that our story cannot be concluded here. or for no reason at all. for instance.1 Thus. we must assume that it is of some meaning or value for the participants. of course. properly so called. that it is not necessary for all the participants in a social practice (constituted by normative rules) to regard the rules as normative. (More on this below. on a normative-based practice in order to render intelligible the idea of norms or rules being reasons for action. for this very reason. On the contrary. This then yields the answer to the question posed above. and rules which merely reflect social regularities. As we know very well from our legal systems. . One should realize. it is inappropriate to call the regularity of actions a social practice. eating meals is not an instance of following a rule. practices constituted by sets of norms.)2 1 See Hart (1961: 78–83). Suppose we observe a regularity in a certain society.) Now. It is in such cases that the social rule is normative. It is possible that people in our imaginary society adhere to this regularity for reasons which are not socially independent. while many others comply with its rules for various prudential or personal reasons. To make sense of the idea that a rule or convention is of itself a reason for action. but these are parasitic on the fact that the norm is primarily considered a reason for action. Is this a social practice that can be said to have a value or purpose or some point? We would hardly say that eating meals is a social practice. but we need not go into this here. This might be the case with regard to five-o’clock tea. In other words. that most people drink tea at five o’clock in the afternoon. or should do. It still lacks an explanation of why or in what sense the participants in a practice conceive of its rules as reason for action. and that as such it enhances a value. attitudes etc. Let me explain. Sometimes they are. Norms can also determine beliefs. for instance. The distinction here is between normative rules which constitute a social practice. some of the participants can be anarchists. and they may act as they do. since people have reason to eat meals regardless of any considerations about what other members of their society do. but then again it might not. 2 In this. it may be meaningful for the participants that the regularity is a practice rather than mere coincidence. When the reasons for doing something are socially independent. that is. social practices. This is where the concept of the value or the point of this practice comes in. I take it to be a defining feature of normative practices that the existence of the rules or conventions is of itself reason for action. even if it occurs as a social regularity. In this sense it can be said that from the point of view of the participants. Constructive interpretation is the imposition of ‘meaning’ or ‘point’. or in general a value. a norm can also be a reason for condemning or praising behavior etc. at least in part. (One need not conclude that socially independent reasons are necessarily excluded in these cases. law. Of course. but not those of Hart.34 Dworkin’s Theory of Interpretation and the Nature of Jurisprudence interpretative attitude characterizes social practices which are constituted by norms. Dworkin shares the views of Kelsen and Raz on the normativity of law. qua normative system. consider the following example. ought to be seen as justified. but this is not always the case.

and how. But the issue is both important and problematic. The question is. The dispute lies elsewhere. Again. modified. that is. law is probably the most institutionalized practice we know. the distinction between what the law is and what it should be. such practices like table manners. different social practices vary according to the different ways in which their requirements are institutionalized. (Art is an interesting intermediate case: viewed as a social enterprise. however. at what stage. the view of the requirements of the practice as sensitive to its supposed value? Dworkin (1986: 47) rightly acknowledges this as a distinct feature which is not logically entailed by the former. etc. which is an essential aspect of it. Most significantly. by a set of established rules and institutions. on the other hand. By this I mean the various ways in which the requirements of the given practice are themselves determined. legal positivism need not deny that the requirements of law are sensitive to its point or value. it certainly has many institutional features. galleries.) The institutional aspect of law is relevant here for the following reason: Dworkin’s assumption that the requirements of law are sensitive to its point or value seems to be directly at odds with the legal positivist doctrine of the separation of law from morality. should display a sensitivity to the value or purpose it is taken to advance.Theory and Practice 35 So much for the first component of the participants’ interpretative attitude. in affecting the way art is viewed in a specific community. and there are no institutions which are entrusted with modifying the rules or instituting new ones. that such etiquette books actually manage to establish canonical formulations of rules of etiquette. art dealers etc. this being one of the main points of dispute between Dworkin and his positivist opponents. However. Mostly. there are no canonical formulations of such rules. Consider.3 Law. they are ex post summaries of rules of etiquette as practiced by certain segments of the population. It is only natural to suppose that any activity performed (among other things) to advance a value or purpose. does have such institutions and many more. On the other hand. it is not clear that the concept of art is necessarily affected by such institutional elements. and this itself shapes the emergent forms in which the practice will be realized in detail. it is never sufficient for a rule or decision to be morally or otherwise justified in order to become law. In fact. What about the second one. In any case. manifest in the role of museums. or perhaps etiquette more generally. books which can be thought to have institutionalized such social practices. people’s actions are bound to be influenced by the way in which they understand or interpret the point or value of the practice. they do not purport to enact such rules or officially modify them. though perhaps they purport to do so. But things become more complicated when we concentrate on social practices. Such an account can hardly be denied. Nobody is there to determine the rules of table manners. as a matter of historical development. However. for instance. to be more precise. do evaluative judgments regarding the value of law actually become part of the law itself? Positivists argue that due to the institutionalized aspect of law. Over a certain period of time. I doubt. 3 I know that at times it was fashionable to have canonical books on etiquette and such. namely. . without an actual and authoritative decision to this effect. he is not very clear in identifying the kinds of practices which are value sensitive in this sense.

the analogy between jurisprudence and literary criticism does not hold independently. Avoiding this requires the restriction of Dworkin’s claim about value-sensitivity to the historical sense of this interpretative approach. is a theory about literary criticism an interpretation of literature? Perhaps it is. that there is no difference between theory and practice in this respect. the same questions on the relations between theory and practice would hold here as well. but such a conclusion would need some argument in its support. claiming as he does at the very beginning of the book (1986: 14) that he will make the ‘judges’ viewpoint’ the paradigm of his theory. To sum up. He can. his conclusions are then not neutral reports about what the citizens of courtesy think but claims about courtesy competitive with theirs. to decide what certain texts mean. for accounting to oneself what it is that the practice requires. it can only follow from an argument which we have yet to explore.36 Dworkin’s Theory of Interpretation and the Nature of Jurisprudence Dworkin cannot at this initial stage presume law to be sensitive to its value in the manner that other. the discussion so far has shown that the normative aspect of legal systems requires its participants to adopt a ‘complex interpretative attitude’ towards its rules. that is. But this only pushes the question one step further: why should the judges’ point of view determine the perspective of legal theory? In short. undertake only to report the various opinions different individuals in the community have about what the practice demands. (For the sake of brevity. which indeed should not be denied by legal positivism. and why is it interpretative in the same way. . if he undertakes that different project he must give up methodological individualism and use the methods his subjects use in forming their own opinions about what courtesy really requires. not because it epitomizes the main ideas of German hermeneutics. Dworkin sometimes compares legal theory to literary criticism (1985: 158–59. 1986: 50). join the practice he proposes to understand. But is literary criticism analogous to legal theory? This is far from clear. Perhaps Dworkin is aware of this problem. providing an answer to the question of why the theory should also be interpretative. Now it must clarify the relation between legal theory and practice. namely. The latter. if he wishes. The reply Dworkin proposes is rather surprising. as I readily conceded. The hermeneutic thesis gains some of its plausibility from a potentially misleading example. More plausibly. Any attempt to explain a social practice such as law. but because in this Dworkin claims to have been inspired by this school. must involve exactly the same kind of reasoning required for participation in the practice. like the role of literary critics. I shall henceforth refer to this thesis as the ‘hermeneutic thesis’. It is the role of judges. it is analogous to adjudication. that is. without incurring the charge of having assumed the very point at issue. non-institutional practices might be.) The following is the relevant passage: A social scientist who offers to interpret the practice must make the same distinction. let me mention a small point. He must. (1986: 64) Before I proceed to examine this thesis in some detail. But that would not constitute an interpretation of the practice itself. is undoubtedly an interpretative enterprise. While jurisprudence might be construed as analogous to some form of literary theory. In other words.

The Internal Point of View 37

3. THE INTERNAL POINT OF VIEW

In order to understand the significance of Dworkin’s hermeneutic thesis we
should take a look at the dispute about the normativity of law. The appropriate
account of the normativity of law has always been one of the most contested topics among legal positivists. Bentham and Austin sought to provide a reductionist
account of legal statements. Austin (1832: lecture 1), for instance, claimed that
statements about legal duties are fully expressible in terms of the likelihood that
one may come to harm of a certain kind.
Yet this reductionism formed one of the main targets in HLA Hart’s criticism of
early positivism. Hart (1961: 78–83) distinguished between the external and the
internal points of view of normative systems. The Austinian description is external in the sense that it is a description of legal practice, or better, its regularities, as
viewed by an outsider attempting to understand the participants’ behavior with no
knowledge of their reasons for behaving as they do. Such an alien sociologist
could, for instance, observe that most people stop their cars when the traffic-light
is red, and that most (or some?) of them are liable to sanctions when they do not.
He could thus only describe the ‘normativity’ of law in terms of predictions about
liability to sanctions. But an analysis of law confined to the external point of view,
Hart argued, is a serious distortion. Legal theory must take account of the internal,
participants’ point of view. Most of these (particularly judges and other officials)
regard the law as reason for actions; hence their statements about the law are
normative statements.
Hart himself, however, seems to have offered yet another type of reduction. He
purported to explain the internal point of view in terms of what people believe to
be reasons for action. He thought it sufficient for legal theory to account for the
normativity of law from this sociological perspective, as it were; that is, in terms of
people’s beliefs, attitudes, tendencies, and the like. Thus, according to Hart’s view,
we encounter two types of normative statement:
1. Made by people who believe in the validity of the normative system (that is, fullblooded normative statements), and
2. Made as statements about (1) by someone who does not necessarily believe in the
validity of the norms.

Raz (1975: 171) recognizes the same two varieties of explanation of norms (which
he labels ‘normative based’ and ‘belief based’, respectively) and acknowledges
them as the basic types. However, he also argues that a third category, which he
calls ‘normative statements from a point of view’ (1975: 170–77) or ‘detached legal
statements’ (1979: 153), cannot be reduced to either (1) or (2). These are statements of the form:

38 Dworkin’s Theory of Interpretation and the Nature of Jurisprudence

3. According to the law A ought to do x.

Nothing follows from statements like (3) as to what the speaker believes that ought
to be done (all thing considered), or as to what anyone else believes. They are statements ‘from a point of view or on the basis of certain assumptions which are not
necessarily shared by the speaker’, or indeed by anyone in particular (Raz 1979: 156).
Raz’s identification of this third type of normative statements, irreducible to the
other two, helps explain for instance, how normative concepts (such as ‘ought’
and ‘duty’) do not have different meanings when used in different normative contexts (for example, law, positive morality, critical morality), while preventing the
confusion of this issue with the question of the necessary connections between law
and morality (Raz 1979: 158). But most important, it enables positivists like Raz
(and Kelsen as construed by Raz) to reconcile positivism with the position mentioned earlier, that from the point of view of the participants, law ought to be considered as justified. Raz can explain Kelsen’s dictum that even ‘an anarchist, if he
were a professor of law, could describe positive law as a system of valid norms,
without having to approve of this law’ (Kelsen 1967: 218n),4 while preserving
Kelsen’s concept of legal validity in terms of justification.
This is a crucial point. Dworkin has previously argued (1977: 48–58) against
Hart’s concept of normativity, that an adequate account of the internal point of
view cannot be ‘belief based’, to use Raz’s expression. This is so, as when the participants in a normative system make claims about what the norms require, they
do not typically make claims about what other people believe that ought to be
done, but simply about what ought to be done. We can now gather that Kelsen and
Raz could agree with Dworkin on this point.5 Legal positivism need not deny that
the participants in a legal system (particularly judges) make full-blooded normative statements which are irreducible to belief-based explanations; but legal positivism is not forced to admit that an account of such statements must adopt the
internal point of view, in a full-blooded, normative manner.
In other words, in so far as the issue is an account of normative statements, there
does not seem to be any real difference between Dworkin and Raz. Both would
agree that when a theorist or a participant seeks to account for what the law
requires in a given case, he or she is bound to make some normative statements
which are (at least in some cases) irreducible to belief-based explanations. Yet
4

See Raz (1979: 156); see also his ‘Kelsen’s Theory of the Basic Norm’ (ibid: 123–45).
I should mention that Hart himself objects to this account of the normativity of law, as depicted
by Raz. He claims that ‘when judges . . . make committed statements . . . it is not the case that they must
necessarily believe or pretend to believe that they are referring to a species of moral obligation’ (1982:
161). Hart’s argument seems to dwell on the fact that people, judges included, can have various reasons
for accepting the normativity of law, reasons which are not necessarily moral or political. I think Raz
would not deny this, yet he would claim that these are somehow parasitic cases, ie parasitic upon the
standard, moral conception. However, a full account of the dispute between the two would exceed the
scope of this chapter, and in any case, even Hart does not deny that Raz’s account of the normativity
of law is compatible with legal positivism (1982: 158).
5

The Argumentative Character of Law 39
neither of them is logically obliged to contend that such an account must adopt the
committed, rather than the detached point of view.
But now it is vitally important to see where the disagreement does in fact lie. It
indeed has to do with the relevant point of view, not with regard to the explication of
normative statements, but regarding the explication of the concept of law. Dworkin
seems to be claiming that the concept of law is also a normative concept, that is, a
concept which can only be accounted for from a normative point of view. This is
why, or rather this is the sense in which, Dworkin’s jurisprudence is a theory of adjudication. Dworkin declines to distinguish between the interpretation of the law, that
is, its particular requirements, and the interpretation of law, that is, the general concept. For him, both amount to one and the same thing: imposing a purpose or value
on the practice so as to present it in its best possible light (Dworkin 1986: 90).
To sum up so far: the hermeneutic thesis should not be understood to deny the
possibility of normative statements from a point of view. What it amounts to is a
contention that jurisprudence— viewed as a theory of the concept of law—and a
theory of adjudication, must adopt the same point of view, that is, the point of view
of a committed participant.
In the following sections I shall try to present what seem to me to be Dworkin’s
arguments in favor of the hermeneutic thesis, arguing that none of them in fact
turns out to be successful. Later, I shall say something more about the consequences of this failure.

4. THE ARGUMENTATIVE CHARACTER OF LAW

Dworkin first refers to the internal perspective on law in a reply to the possible claim
that a proper understanding of law requires a scientific or historical approach. As
the same argument is also mentioned later, however, in the context of the
hermeneutic thesis, it deserves close examination. Consider the following passage:
Legal practice, unlike many other social phenomena, is argumentative. Every actor in the
practice understands that what it permits or requires depends on the truth of certain
propositions that are given sense only by and within the practice; the practice consists in
large part in deploying and arguing about these propositions.
. . . the historian cannot understand law as an argumentative social practice . . . until
he has the participants’ understanding, until he has his own sense of what counts as a good
or bad argument within that practice. (1986: 13–14, my emphasis)

The main point here seems to turn on the question of what one must know or experience so as to be able to understand a social practice such as law. Yet the
distinction drawn here by Dworkin between a sociological or historical approach to
law and a ‘jurisprudential’ one (1986: 14) indicates that he is dealing with two separate questions in one breath. The question of whether a causal explanation of social
practices is possible, and if so, whether and to what extent it is preconditioned by an
interpretative explanation, is a rather familiar issue, extensively debated in the

absorbed in large portions of our knowledge (for instance.7 What emerges then is a multi-layered picture of the necessary background knowledge which makes the propositions of a social practice intelligible.40 Dworkin’s Theory of Interpretation and the Nature of Jurisprudence philosophy of social science. which in fact amounts to knowing a great deal about the world as it is experienced and conceived of by the pertinent community. can be taken a step further: background knowledge is not confined to institutional concepts. Needed at some basic level is a knowledge of the natural language. a knowledge of the pertinent natural language is also required to render the requirements of law intelligible. It contends that participants’ and theorists’ interpretations must adopt one and the same normative point of view. In some cases the institutional background is very specific. or must acquire. Let us call these ‘institutional concepts’. Consider games. are only intelligible against a complex background. concepts which gain their very meanings from the existence of a practice or institution. sect 2. for example). Dworkin’s answer to the second question would seem to run as follows: in the practices he has classified as ‘argumentative’. recall Searle’s argument that the literal meaning of sentences is only applicable relative to a set of background assumptions. the point of playing games at all) in order to understand what a ‘checkmate’ is. Nothing in the necessity of background information can be taken to establish this. would have to be taught the rules of the game (and perhaps. the more necessary it becomes to know about the particular background of these concepts. especially those employing institutional concepts. These considerations thus establish that social practices are intelligible only relative to a body of background information. Furthermore. Clearly. a particular game for instance (as in the case of understanding ‘checkmate’). The same point. the intelligibility of certain requirements of the practice depends on understanding concepts or propositions ‘that are given sense only by and within the practice’. for instance. It only shows that in a familiar sense. the concept of ‘contract’). one needs to know the pertinent practice in order to understand these terms. Certainly. Someone with no idea of what chess is. etc are clearly ‘given sense only by and within’ a certain game. 6 7 See eg Taylor (1971) and (1985). See also Winch (1958). ‘goal’. all statements or propositions. in some cases. The nature of the background information required here may also vary according to the nature of the concept. Chapter 2. In other cases it is much more holistic. the hermeneutic thesis presents a stronger claim than this. for instance.6 But the question we are facing now is entirely different: it pertains to the role of the participants’ point of view in an interpretative explanation. But as we have seen. or a particular theory (required to understand ‘quantum’. and cf Maclntyre (1973). since answering the latter requires no reference whatsoever to the former (although. Does this prove the hermeneutic thesis? Clearly not. the opposite may not be the case). But the term ‘argumentative’ may be misleading here. Yet the closer the attention paid to institutional concepts. however. . The two should be kept distinct. for instance: terms such as ‘checkmate’. knowledge of which any interpreter either shares already.

in such a way as to present it in its best light. unsettled one. one prohibiting the consumption of fish and the other allowing it? Thus. Consider the following improvisation on a rather familiar example: while not a vegetarian myself. and that therefore the interpreter of such a practice must form an evaluative judgment of her own about those values which are inherent in the practice that she purports to interpret. Dworkin would argue that both the participants and the theorists would have to decide what vegetarianism ‘really requires’ (1986: 64). As a first step. Should this make any difference with regard to my ability to make a detached normative statement? To begin with. and as such. not to eat a certain dish. Such evaluative judgments. Nevertheless. are not essentially different from the kind of evaluative judgments made by the practitioners themselves. . in saying ‘according to vegetarianism. or something to this effect. First. Second. however. would reply that I have missed a point here. A should not eat fish’. whom I know to be a devout vegetarian. not its particular requirements. Dworkin claims. I could still tell my friend. I thus make a normative statement from a point of view. Nor do I think that Dworkin would wish to deny this. According to Raz. two such practices. I might be making the mistake of over-generalization. which Dworkin calls ‘argumentative’. that the explanation of a social practice. ‘according to one school of vegetarianism. we must distinguish between two possible cases. is the main argument offered by Dworkin in support of the hermeneutic thesis. perhaps there is a problem of identity here pertaining to the concept of vegetarianism: is vegetarianism a single normative practice or are there. (Perhaps this is why he calls such practices ‘argumentative’. it is important to note that Dworkin makes two distinct points here. First. and that these controversies form an essential part of the practice itself. since it contains fish. or in the background assumptions that make the statements intelligible. since the case in question is a new and. Suppose further. Dworkin sees the problem of controversy as pertinent here. and it is to this argument that I now turn. suppose that it is controversial among vegetarians whether fish should or should not be eaten. that the interpretation of such social practices. Alternatively. is essentially interpretative. Now. This. either in its concrete judgments. the issue of controversy boils down to the problem of applying rules to novel cases. I should have said. necessarily value laden. for example.) Note. As we have seen. that is. I believe. that this controversy is due to different conceptions vegetarians hold about the nature and point of their practice. It is not the necessity of background knowledge on which he relies.The Argumentative Character of Law 41 Dworkin. that the possibility of normative statements from a point of view does not depend on the assumption that the pertinent point of view is uncontroversial. Here (and this has nothing to do with the nature of the background information required to understand a social practice). like law or the arts. if it is not a question of identity. I take it. the debate concerns the relevant point of view with regard to the concept of law. is unique in the sense that the practice itself is an evaluative enterprise. so far. It will not do just to repeat how the rule has been applied. A should not eat fish’. but the fact that it is controversial.

But surely it does not follow that I must rely on my own judgments about those values. An account of the values which make sense of legal practice does not commit one . is not the same as forming an evaluative judgment about those values. like law. so that I can better understand the controversy about.42 Dworkin’s Theory of Interpretation and the Nature of Jurisprudence I have nothing to say against the first thesis. or other. and so on and so forth. After all. and the latter is not entailed by the former. indeed. certain judgments about what counts as criteria of success for the kind of theory in question. judgments that are not essentially different from those of the participants’ themselves. that jurisprudence cannot be neutral. Theories are based on various evaluative judgments. is free from evaluative judgments. whether interpretative. I must form some views about the ways in which vegetarians conceive of their practice and the values they associate with it. how else would one succeed in presenting the legal practice in its best light. the interpretation of the practice is bound to be normative-evaluative as well. Let me explain. So any theory is value-laden in this respect and I doubt that legal positivists have ever denied this. whether it prohibits the consumption of fish as well. scientific. that is. and make sense of its requirements for the participants. Without relying on such judgments the interpretation of legal practice cannot be carried out. political. the interpreter. What Dworkin seems to ignore here is that there is a crucial difference between forming a view about the values which are manifest in a social practice. unless one relies on certain views about the values which are inherent in the practice one strives to interpret? But this last move is questionable. I think that it is true that an interpretation of a social practice is value laden. Forming a theoretical view about the values which are inherent in a given practice. must rely on certain meta-theoretical evaluative assumptions as the ones mentioned above. say. and decide for myself whether I agree with them or not. I think that what he denied is the further contention that such evaluative presuppositions prevent the theory from being neutral in a moral. Perhaps HLA Hart may be thought to have denied even this modest aspect of the evaluative dimension of jurisprudence. sense. Consider the example of vegetarianism mentioned earlier. whether interpretative or not). because the thesis about the impossibility of neutrality actually derives from Dworkin’s second thesis. Those must include. No theory. and actually having evaluative judgments about them. what are important aspects of the subject-matter. I think that this is precisely the sense in which Hart denied. this is true about any theory whatsoever. one which is misguided. And in this he may have been quite right. In fact. must make her own judgments about the values which are really inherent in the law. Dworkin insists. judgments about what is it that the theory should try to explain. Hart did not deny the fact that jurisprudence (just like any other theory. it is the subject matter of interpretation in the case of legal theory that makes all the difference: Because the law is a normative practice. That seems quite right. for example. and rightly so. When I try to understand what vegetarianism is about. and less important ones. but I do not think that this would be quite accurate. In the case of law. no complete theory is just a list of descriptions that the theorist purports to offer. Recall that according to the second thesis that Dworkin advances.

then it may be the case that ‘the best’ is a moral best. for the legal theorist. The question of whether there is an obligation to obey the law is a separate kind of question. and not about the obligation to obey it. I need not decide for myself whether they are sound or not. it would make perfect sense to say that the interpretation of the law is partly a matter of moral judgment. that even if we accept Dworkin’s thesis that interpretation must strive to present its object in its best light. What it does mean would depend on the purposes of a theory about the nature of law.The Argumentative Character of Law 43 to forming any particular evaluative views about them. Only if you think that the main purpose of such a theory is to justify the law. guiding their conduct. see Marmor (2001: 153–59). however. Analytical jurisprudence first and foremost strives to understand what the law is. it may still not follow that the kind of evaluative judgments that legal theory must rely on are necessarily the same as those judgments that judges and other practitioners are expected to make. Thus. If the only way to account for the nature of vegetarianism is to undertake the task of trying to present it in its best possible light. best all things considered. However. from the thesis that any interpretation must strive to present its object in its best possible light. Dworkin’s thesis that legal theory. It seems to me that the only reason for Dworkin to deny this distinction derives from the constructive model of interpretation. For my critic of Perry’s argument.8 The truth is. that is. If this is true. Dworkin’s argument about the identity of theory and practice depends on one crucial aspect of his theory of interpretation. ‘the best possible example of its kind’ does not necessarily mean morally best. then there is some plausibility to the claim that any interpretative understanding collapses into judgment. 8 Stephen Perry (1995) has also argued that jurisprudence must rely on moral argument. for example. from the perspective of the practitioners. and as far as traditional jurisprudence is concerned. This linkage between interpretation and ‘the best’ is both undermotivated and often impossible. it is certainly not the main question. However. the idea that interpretation must always strive to present its object in the best possible light. we have already seen that this aspect of the constructive model is very problematic. then perhaps it is true that the interpreter must form his own evaluative judgments about those values which could best justify vegetarianism. without having any particular evaluative views about those moral assumptions. In other words. But this is only one general question about law that one can ask. They must decide which interpretation makes better moral sense. But at least now we can see why Dworkin insists on it. the moral assumptions which make sense of certain vegetarian practices and beliefs. . remains unfounded. the law purports to create reasons for action. They must regard the law as normative. to explain why would anyone have reasons to obey the law. must rely on those same kind of evaluative judgments that the practitioners themselves supposedly entertain. namely. namely. Without it. and one which is quite obviously a moral one. as an interpretation of a social practice. I can certainly understand. For judges and other actors in the legal practice. It is a theory about the nature of law.

in which Davidson’s principle of charity could support Dworkin’s constructive model? Consider the following account. this principle makes sense. is careful to avoid an obvious mistake. and ‘[a]s a result. recall the . Nevertheless. But the point is that even this seemingly modest formulation should have been further qualified. I take it that what Root has in mind is not the hermeneutic thesis. that is. . however. his arguments are instructive. First. are true’ (1986: 285). Since the norms that guide interpretation are the norms of rationality. CONSTRUCTIVE INTERPRETATION AND THE PRINCIPLE OF CHARITY I would like to conclude this chapter with an examination of an alternative line of reasoning which might be thought to support Dworkin’s theory. ‘the general policy . Nor do Davidson’s further conclusions. He identifies three main features in Davidson’s concept of interpretation that have a bearing on social explanations: (1) that interpretation is holistic. He acknowledges that the ‘principle of charity does not preclude disagreement. . Root. he claims that ‘[A]ccording to Davidson. there is a striking similarity between his account and some of the existing attempts to apply Davidson’s principle of charity to the realm of social explanation. what it precludes is inexplicable disagreement’ (1986: 287). and (3) that the norms of interpretation are the norms of rationality. Nevertheless.44 Dworkin’s Theory of Interpretation and the Nature of Jurisprudence 5. in terms of the ‘reflexivity’ of interpretation. argues that the principle of charity ‘tells against the idea that there may be a great difference between the perspective of the insider and the perspective of the outsider. . and the interpreter’s account’ (1986: 291). perhaps less direct. . Root. and the interpreted as well’ (1986: 279). The hermeneutic thesis is not a denial of conceptual schemes or of radically different minds. exploring the application of Davidson’s theory to social explanation. on Davidson’s own account. have any direct bearing on our present concern. . (2) that it is critical and normative. a weighted majority of the beliefs that the interpreter attributes to her subject must be beliefs that. is to choose truth conditions that do as well as possible in making speakers hold sentences true when (according to the theory and the theory builder’s view of the facts) those sentences are true’ (Davidson 1984: 152). . the critical principles that guide interpretation will limit the differences between the participant’s account . My question then is this: is there any other form. ‘the norms of interpretation are the norms that guide the interpreter . Recall that according to the principle of charity. Although Dworkin himself refers to this option only briefly (1986: 53). only within a holistic conception of language and thought. Most interesting is Root’s characterization of the second and third features. but a somewhat weaker principle. One thing should thus be clear from the outset: the constructive model is not entailed in any straightforward sense by the principle of charity. denying the possibility of conceptual schemes (Davidson 1984: 193–98). Charity counsels the outsider to attribute a perspective to the insider that is very close to her own’ (1986: 291). the principle of charity. As I have already mentioned in the previous chapter. on the interpreters own view.

It clearly does not follow that each particular interpretation must attribute beliefs to a subject in such a way as to make most of his beliefs true. but much further away from the truth. ‘rationality’ is not a magic word capable of dismissing it. As we have seen. therefore. the two are essentially different.) As far as the principle of charity is concerned. or value on a practice in order to present it in its best possible light. even within our own culture. is far from obvious. Interpretation is part and parcel of the legal practice. But unless such a unified concept of rationality is presumed. imposing a point. The idea that there is one principle of rationality guiding our behavior. I have argued for the rejection of the hermeneutic thesis. let alone presenting voodoo in its best light. Root seems to be content to apply the principle of charity as a heuristic principle of interpretation of particular actions or practices. Davidson himself (and Quine for that matter).Constructive Interpretation and the Principle of Charity 45 problem of incommensurability. it is a speaker of a natural language. The fact that one cannot understand voodoo unless one understands a great deal about these people does not entail that the interpreter has to attribute any true beliefs about voodoo to anyone. It contends that jurisprudence is basically a theory of adjudication. qua speaker of such language. as both amount to one and the same form of interpretation. Root’s mistake is due to the following unwarranted inference: suppose we concede Davidson’s general assumption that disagreement of any kind is intelligible only against a background of agreement (Davidson 1984: 153). The inevitable conclusion. cannot be accused of this non sequitur. people who believe in voodoo can be interpreted as being utterly mistaken. a theory which is not itself an interpretation of the law. . The problem of incommensurability is a domestic one. according to the traditional view of analytical jurisprudence. and the former can lend the latter no support. it cannot be concluded that interpretation is necessarily guided by the same norms as the interpreted. so different from our own as to make them inscrutable. as arguments in the previous section have pointed out. purpose. This suggests a need to shift from an interpretative account of jurisprudence to the broader (and traditional) conception of jurisprudence as comprising a theory of interpretation. Jurisprudence should comprise a theory to account for this. (Recall Davidson’s own proviso on the applicability of radical interpretation to a ‘passing theory’. namely. legal theory comprises inter alia a theory of adjudication which concerns the unique features of judicial reasoning. This takes the principle of charity closer to Dworkin’s constructive model. I believe that we are now in a position to draw conclusions. The hermeneutic thesis challenges this division. the more general (and hence perhaps more plausible) the principles of rationality are taken to be. and more importantly. Furthermore. that is. but a philosophical account of what it is to interpret the law. In this chapter. When Davidson refers to ‘a speaker’. Secondly. is that despite apparent similarities between the principle of charity and constructive interpretation. I do not intend to argue that there are radically different minds (or cultures). the less bearing they will have on the interpreter-subject relation. or a subject.

.

A legal system. he has repeatedly argued. and the level of method. This chapter will propound the view that the roles assigned by Dworkin to coherence on the two levels of his theory of interpretation.4 Coherence. will outline the difficulties which arise when this interpretative structure is applied to Dworkin’s jurisprudence. I shall then turn to a closer examination of the epistemic foundations of Dworkin’s theory of interpretation. and soundness. identity. fit. we can discern two distinct levels to which the concept of coherence is pertinent: the level of content. I will argue that a construal of these dimensions in the light of a coherence theory of knowledge constitutes an interesting reply to the brand of skepticism regarding interpretation which is raised by Stanley Fish. however. Finally. that the concept of coherence also plays a crucial role in the epistemic foundations of his legal theory. and Interpretation: The Epistemic Foundation of Dworkin’s Legal Theory T HE CONCEPT OF coherence has always been of fundamental importance to Dworkin’s legal theory. Thus. that is. 1. Later it has become clearer. focusing on the relations between the various dimensions of interpretation he proposes. to which it applies as a basic value of political morality. Holism. I shall begin the discussion with a few observations about the concept of coherence in general and about Rawls’s ‘reflective equilibrium’ in particular—a thesis which has influenced Dworkin’s thought considerably. where coherence also plays a substantive role. are not easily reconcilable. on the . but also those norms which can be shown to fit or cohere better with the best theory of the settled law. as entailed by his thesis of ‘law as integrity’. but that it also casts a shadow on another reply to Fish that Dworkin puts forward. This pair now seems to dominate the main trends in epistemology. THE REFLECTIVE EQUILIBRIUM Coherence and holistic theories of knowledge have received increasing philosophical attention since the publication of WVO Quine’s ‘Two Dogmas of Empiricism’ (1953). recently articulated in the form of a theory of interpretation. comprises not only the settled or conventionally identifiable law.

or entailed by the very nature of our social lives. First. in this sense. this is not necessarily the case.2 Such a view would not necessarily be a skeptical one. a shift in the paradigms of a discipline does not solve its problems but rather engenders new puzzles. This would make the example irrelevant since the two propositions cannot be conceived of as belonging. however. coherence is typically meant to designate something more than mere logical consistency.’ The two are quite obviously consistent but there is hardly any sense in which they can be said to be coherent. together. is insufficient. the only thing we can mean is that p is consistent with other propositions which we also hold to be true.1 Consider the pair of propositions: ‘One should always obey the law’ and ‘All swans are white. Yet as Kuhn himself has taught us. There is a familiar sense in which we think that these two notions are intimately linked. for in what sense is a theory more than a set of consistent propositions? In other words. 3 See eg Russell (1959: 119–23). One is tempted to say that coherence is the requirement of consistency as applied to theories. that is to say. The second and more interesting difficulty encountered by a coherence-based epistemology concerns the relation between coherence and truth. Substituting coherence for foundationalism does not seem to be an exception. it does not follow that a coherent set is likely to be true. Bernard Williams (1981) also seems to hold such a view. There is no need to repeat the well-known difficulties involved in such an explication of the meaning of truth. In fact. because the contradictions between them reflect genuine contradictions inherent in our moral lives. it begs the question. etc. is not a very popular philosophical position. But it is not quite clear just what this additional feature is taken to be. Any theory of knowledge based on the concept of coherence faces two immediate difficulties. cannot be comprised of a set of coherent principles. as a repudiation of the correspondence conception of ‘truth’. if you hold such a coherence theory of truth. is employed to explicate what ‘truth’ means or consists in: when saying that a proposition. even if we hold them to be objective and true. Not surprisingly. to any theory whatsoever. would seem to have completed this philosophical revolution. be true. ultimately. A coherence theory of truth. Coherence. ‘is true’. With one exception: there are philosophical attempts to explicate the notion of ‘truth’ itself in terms of coherence alone. Kuhn’s contribution to our understanding of scientific knowledge (1962). Be this as it may. 2 . It is possible to argue that moral principles. a coherence theory of knowledge would naturally follow.48 The Epistemic Foundation of Dworkin’s Legal Theory ruins of traditional empiricist foundationalism. and Rawls’s elaboration of the reflective equilibrium as the epistemic foundation of his A Theory of Justice (1971). Cf Nagel (1979). Perhaps in the domain of morality. This answer. though perhaps basically correct. it only pushes the question one step further. We would normally assume that a set of incoherent beliefs cannot.3 Opponents of the correspondence 1 Cf MacCormick (1984). If I have understood him correctly. See also Davidson (1986a). p. the essential point is that even if we maintain that a set of incoherent beliefs cannot be true.

this does not provide a logical solution to the problem of indefiniteness. when the theory has been fully articulated. it is questionable whether anyone has ever held such a view. This could be put. 5 On an attempt to solve the problem in a manner different from the below. Once the notion of coherence as an explication of the meaning of truth is abandoned. (And indeed. on this view. The proposition ‘it is true that p’ is. However. A coherence theory of knowledge. however. As Rawls himself admits. . Foundationalism (both in its traditional empiricist and rationalist manifestations) amounts to the claim that some of our beliefs. as a matter of priority. this is a highly implausible view.5 There is presumably an indefinite number of possibilities of constructing sets of logically consistent moral principles. in the sense of not initially requiring any justification. do not require any justification.4 or— taking a less skeptical attitude—to construe it as a ‘primitive’ notion which resists further analysis or reduction of any kind. According to others. however.The Reflective Equilibrium 49 conception of truth usually prefer to abandon the notion of truth altogether. our firmly held intuitions. An examination of Davidson’s suggestions. all the propositions in a given realm requiring equal justification. Thus the only pertinent epistemic criterion for the correctness of theories is logical consistency. on the other hand. would exceed the scope of this chapter. As opposed to foundationalism. Hence. the first question facing advocates of a coherence theory of morality is how to choose among the possible sets of moral principles. is best seen as a rejection of foundationalism. precedence over the force of those beliefs that constitute the foundations. such a theory assigns to consistency among the total relevant set of beliefs. within a given realm of knowledge. coherence theories of knowledge run into serious difficulties in justifying this precedence. ‘truth’ is semantically redundant. It is quite implausible to assume that several theories could be constructed so as to be coherent with all our actual moral 4 In fact. there are two versions of this redundancy conception of ‘truth’. At the opposite pole. but it at least imposes a practical constraint. coherence conceptions can take two possible forms. none of our beliefs should be taken to constitute the foundation of a realm of knowledge. The values or principles must be consistent not only among themselves but also with an additional set of judgments. but only vice versa. the notion of truth is epistemically redundant. even these quasifoundational beliefs are not exempt from possible refutation at some later stage.) The second and much more plausible version of a coherence theory of knowledge runs more or less as follows: some beliefs have a quasi-foundational status. I shall exemplify these difficulties through the case of the application of a coherence theory of knowledge to moral theory. According to a strong coherence theory. See Strawson (1969). if for no other reason than the fact that there are infinite possibilities of constructing sets of consistent propositions. According to the kind of pragmatism advocated by Rorty (1982). see Davidson (1986a). namely. they constitute the foundations of knowledge. Rawls’s proposal of a reflective equilibrium (1971: 34–53) seems to provide the most attractive and comprehensive answer to this question. Patently. Hence the foundational propositions cannot be refuted by the rest of the theory. roughly. semantically equivalent to the proposition that ‘p’.

raises two difficult. First. This would compel us to say that a is true and false. which apparently we must as it would otherwise be pointless to rely on them. we may want to change our initial intuitions or view them in a different light. If we have a reason to prefer P to Q. First. 6 Which is why Rawls does not use the term ‘intuitions’ in this context but ‘considered judgments’ (1971: 47). it is not clear why we should prefer P to a continued adherence to our original set of n judgments. On the contrary. . we must be prepared to disregard or jettison some of them for the sake of the moral theory’s coherence. Hence the notion of a reflective equilibrium. Q. in the process of constructing the moral theory.50 The Epistemic Foundation of Dworkin’s Legal Theory intuitions. holding the initial position would be even more truthful. namely. Now Rawls’ model of the construction of moral theories. they must be held to be true in order to function as constraints on the available moral principles. yet the most coherent set of moral principles.6 Second. be self-reflective. say P. it is not at all clear why the fact that we can reach an equilibrium between our firmly held moral intuitions and general principles serves to justify the epistemic precedence of coherence over the force of our firmly held intuitions. some of our intuitions must be amended or even jettisoned in the interests of consistency with the principles. one subscribes to a coherence theory of truth as well. On the one hand. Can we really have it both ways? The alternative conclusion seems to be that only (a set of) coherent moral intuitions can be true. On the other hand. Our intuitions and the moral principles must be mutually adjusted in a special manner. though. this result is very uncomfortable unless. This is a very troublesome idea. Third. it is true in Q but false in P. To sum up. the intuitions taken into account are only those which are held firmly and meet certain conditions. both seem to yield paradoxical results. 7 It is not entirely clear whether Rawls would apply the reflective equilibrium to the construction of moral theories in general. accounts for only n–5 intuitions. Suppose theory P is coherent with n–a intuitions. Suppose we have discerned that we have a set of n firm moral intuitions. can account for only n–1 of these. once the principles are fully articulated. This leads us directly to the second problem pertaining to Rawls’s model. it even seems highly unlikely that a single set of coherent principles might account for all of our actual moral intuitions. so to speak. If we assume that intuitions reflect correct moral judgments. and theory Q with n–b intuitions (where n stands for all our firmly held moral intuitions). Rawls assumes that the relation between principles and intuitions may. But then. in certain cases. Suppose another coherent set of principles. as we know that different sets of coherent moral principles would account for different sets of intuitions. interrelated questions. the assumption that intuitions are independently true and the converse one.7 attractive as it may seem. of course. Needless to say. that their truth depends on fitting a coherent scheme. is covered by the former. or only to a theory of justice. it is that more truth. the highly problematic status it assigns to intuitions.

to that responsibility’ (1975: 30). Imposing the natural model on Rawls would be inconsistent with one of the main features of the reflective equilibrium. Dworkin claims. It is a constraint to be imposed upon officials for the sake of fairness. Consider the two difficulties raised by the model of reflective equilibrium described above. Intuitions are not to be considered as true ‘in some standard way’. but rather that ‘men and women have a responsibility to fit the particular judgments on which they act into a coherent program of action’ (1975: 28). when necessary. as the natural model does. The ‘natural’ model presupposes that moral principles are discovered rather than created. Dworkin (1975) presented his own interpretation of the reflective equilibrium. our moral intuitions. cannot be wholly satisfactory. (Ibid. that is.The Reflective Equilibrium 51 In one of his earlier articles. are clues to the existence of some moral reality. according to which moral judgments are true when they . ‘[i]t demands that we act on principle rather than on faith. any theory which does not account for an intuition. titled ‘The Original Position’. That is. Such concessions from the perspective of the natural model ‘would be nothing short of cooking the evidence’ (1975: 32). His answer to the question of the status of intuitions is somewhat more obscure. and accordingly the principles which emerge from them. Dworkin considers two possible construals of the reflective equilibrium as an account of the construction of moral theories. objective existence. is this model? Dworkin says. Hence Rawls. that under the natural model. would not be satisfactory in a familiar way. cannot be taken to be an ethical realist. and not allow appeals to unique intuitions that might mask prejudice or self-interest in particular cases. the claim that we are justified in neglecting or discarding some of our intuitions for the sake of coherence. But we are not enlightened as to what this is. one which might be thought to have averted some of the difficulties of Rawls’s position. I believe that by ‘standard way’ Dworkin has in mind a correspondence conception of truth. One important difficulty arising from an attempt to apply the natural model to Rawls is. just as a scientific theory which does not account for certain observational data it is supposed to cover. exactly. but what. at least for one which is held firmly. that principles of justice have some fixed. or told in what other sense they can be considered true. In other words. The other. ‘does not assume. Dworkin’s answer to the question of why coherence justifies the moral theory is based on considerations of political morality. the natural model presupposes some form of ethical realism. my emphasis) The main thing to notice here is the fact that Dworkin regards coherence as a value of political morality. so that descriptions of these principles must be true or false in some standard way’. Its engine is a doctrine of responsibility that requires men to integrate their intuitions and subordinate some of these. namely. provide a public standard for testing or debating or predicting what they do. We are thus left with the constructive construal of the reflective equilibrium. while the constructive model does not. a doctrine of responsibility: It is unfair for officials to act except on the basis of a general public theory that will constrain them to consistency. ‘constructive’ model.

that is. However. an ideal which one might some day hope to achieve). Most people’s conviction that it is morally wrong to torture children just for fun. strategy is adopted by Rawls himself in his later writings. In short. should be allowed to act upon their moral convictions only to the extent that these convictions can be invoked within a coherent scheme of principles. especially in the public domain. he is not interested in an account of how it is that such intuitions can be true or of what their truth consists in. However. Instead. To reiterate: the main problem with the natural model is that if the truth of one’s moral convictions is presupposed. in which case the question of their truth cannot be ignored. Dworkin is saying that people have moral convictions which they typically take to be true. For a similar line of thought with respect to Rawls. The constructive model propounded by Dworkin as an alternative averts both the question of whether our moral convictions are really true.8 On the other hand. However. and more importantly. will not do. These two points. and that of what their truth consists in. of what is the fair and just scheme within which such convictions ought to be taken into account and constitute reasons for actions.52 The Epistemic Foundation of Dworkin’s Legal Theory correspond to some reality. if coherence is justified. it introduces coherence as a moral constraint on public reason. he submits. then we face the following problem: the presupposed values of fairness must themselves be based upon intuitive convictions. a coherence conception which requires neglecting the truth in some cases cannot be justified. simply as a matter of fact. Hence. (Recall that one cannot adopt a skeptical attitude here since this skepticism would affect the value of coherence as well. If they are taken to be true (in ‘some standard way’?) we are driven back to the perplexities of the natural model. my critical remarks in the following pages are not meant to have any direct bearing on Rawls’s recent formulation of his theory. though not identical. that is. See Rawls (1980) and (1985). a specific conception of fairness. 8 A similar. because it is false. regarding the constructive model as a basis for a moral theory’s construction. coherence should be ignored or at least assigned second priority (as. that is. will raise the following difficulty: it simply cannot serve as an alternative in the relevant sense. constitute an interesting and rather unique version of a coherence theory of political morality. as a methodological alternative to the natural model. First. see Raz (1990). that people have these convictions and that they are indeed convictions: The constructive model ‘takes convictions held with the requisite sincerity as given. emphasis mine). Dworkin is quite unclear about any (other) sense in which moral convictions might be true. is probably much more firmly held than any convictions they have about political fairness. as it is here. however. with reference to certain moral values. for example. taken together.) It would seem that the only way of escaping this circularity is to maintain that the basic values of fairness Dworkin relies upon have some foundational status as compared with other moral convictions. Officials. This. apart from determining the fact of their existence. he turns to a different question. and seeks to impose conditions on the acts that these intuitions might be said to warrant’ (1975: 31. Secondly. just as the proposition ‘there is a chair in this room’ is true if and only if there is a chair in this room. .

As such a value. ethical realism? Why is it presented as an interpretation of Rawls who undoubtedly takes coherence to be an issue of method?) though logical perplexities are at least avoided. Dworkin’s concept of interpretation presupposes a coherence theory of knowledge which. Law as integrity urges judges to grasp their adjudicative assignment as guided primarily by concern with the moral value of coherence. All this indicates that Dworkin’s interpretation of the reflective equilibrium actually constitutes a shift from a coherence theory of morality (that is. there are two main challenges Dworkin’s theory of interpretation must meet. Fit. there is another problem here. how can we come to know it? But in addition to this obvious worry about the objectivity of values. and Soundness 53 such a view would amount to a foundationalist. namely. In other words. 2. In his interpretative theory of law. IDENTITY. his conception of coherence becomes much more meticulous. in a better (or worse) light. in fact. much of the text remains largely unclear (for example. Judges ought to interpret past legal decisions only in a way and to the extent that would render (or reveal?) these past political decisions consistent in principle. which is what both Dworkin and Rawls wanted to avoid. when Dworkin comes to elaborate on the epistemic foundations of his interpretative theory. for that matter. namely. The requirement of presenting an object in its best light makes sense. as a particular value of political morality. Recall that according to the constructive model. A text could not be presented in the best light or. once it is applied to law.Identity. however. In this case. FIT. as the best possible example of the genre to which it is taken to belong. about the kind of values which make novels good (or bad)? And even if there is such a truth. Dworkin clearly distinguishes between the role played by coherence at the methodological level. Is there really a truth of the matter. rather than a coherence theory of morality. AND SOUNDNESS At a later stage in his thought. only if rival interpretations are indeed . why is the whole model discussed as an alternative to the natural model. as entailed by his concept of ‘integrity’. in the epistemological sense) to a moral theory which endorses coherence as one of its basic values. and at the level of soundness. any interpretation strives to present its object in the best possible light. to any other meta-ethical stance. for example. So one clear problem pertains to the kind of evaluative judgments involved and the possible skepticism about their objectivity or truth. it must be clear that such a move can offer no alternative to ethical realism or. if we cannot have a firm conception of what the text is. that is. in the form of a coherence theory of knowledge. must leave room for coherence as a distinct value. coherence is rendered a guiding principle for one particular interpretative strategy which may be chosen from among various others. From a methodological perspective. Nonetheless. Its brand of coherence can offer no method of choosing between rival theories since it is itself a substantive moral principle that rests upon substantive moral convictions.

and rather strong in others. They are weak in their emphatic renunciation of the need for a precise identification of the boundaries of the text. and needs careful explication. one must identify the relevant text. that is. At the moment. But are there any such constraints? Dworkin believes so. But. at least roughly speaking. of interpretation. We shall return to this point later on. fit.54 The Epistemic Foundation of Dworkin’s Legal Theory interpretations of the same object. one must first have an idea of what it is that is to be interpreted. that ‘some kind of interpretation is necessary even at this stage’ (1986: 66) (for example. so to speak. First. in the case of law. . suffice it to say that identity imposes fairly loose conditions with regard to the texts’ extension and rather rigorous ones with regard to the classification of its kinds or genres. His answer is very subtle. More naturally. renders the element of identity essential. Furthermore. The second feature. One of the initial conditions enabling interpretation to flourish within the practice. and soundness (1986: 65–72). although we must typically be capable of pointing to paradigm cases as part of our identification of the text. The concept of fit seems to play a double role in the scheme of interpretation. When approaching an interpretative activity. rather than preconditions. any talk of a better or worse interpretation would make no sense. The very idea of a constructive model of interpretation presupposes the availability of constraints. Second. Considered as a process. the conditions outlined by Dworkin as defining the texts’ identity emerge as rather strong ones upon noting that the constructive model is very much genre dependent. is the case when the text is a social practice. ‘a very great 9 Cf Alexander (1987). at least tentatively. Dworkin’s concept of identity defines conditions which are rather weak in some respects. a few words must now be said on the process of interpretation. on how it fits the bulk of the text. So unless we know what the object is. in the sense that they are taken to be parts of it if anything is. In the pre-interpretative stage we identify the text. consider the issue of identifying genres. as Dworkin himself readily admits (1986: 66). the interpretative and the post-interpretative stages. it is crucial to know just what the text is. mentioned earlier). Considered structurally. In other words. is precisely the assumption that the extension of the practice is sensitive to its point or value (the other initial assumption being that it has a point or value). Dworkin emphasizes two important features of this stage. though. Let us consider the structural dimension first. such a paradigm case is nonetheless never ‘secure from challenge by a new interpretation that accounts for other paradigms better and leaves that one isolated as a mistake’ (1986: 72). it contains three elements: identity. at least. Interpretation aims at presenting an object as the best of its kind. for an interpretative enterprise to exist. kinds and genres do not carry identifying labels. one would tend to regard the designation of genres as products. This. such as law. As the soundness of a particular interpretation depends.9 To explain. However. as a social practice such as literary criticism or adjudication. interpretation comprises the pre-interpretative. fit. An initial identification of the kind or genre is hence a precondition for any interpretation.

the constructive model comes into play. it is more like a necessary condition. as several and conflicting interpretations may fit the text in this sense.The Fish—Dworkin Debate 55 degree of consensus is needed’ among interpreters with regard to the identification of what counts as the text (ibid). fit is basically a threshold requirement. 3. the best fit. fit. see Fish (1987). It involves the choice of that interpretation which is attributed the better. Dworkin asks us to imagine a group of novelists who accept the following 10 Dworkin’s first articles on interpretation were criticized by Fish (1983a). The proposed interpretation ‘must fit enough for the interpreter to be able to see himself as interpreting that practice. But this may not be enough. As he puts it in the case of law. It would seem that all this leads to a coherence theory of interpretation. In other words. Dworkin’s (1983) rejoinder was followed by Fish (19836). the better. the purpose of legal theory is ‘to achieve equilibrium between legal practice as [we] find it and the best justification of that practice’ (1986: 90). as I believe that an examination of Stanley Fish’s criticism will help reveal Dworkin’s deeper presuppositions. The post-interpretative stage introduces another. emphasis mine). As Dworkin affirms explicitly. or a legal theory claiming that statutes are not part of the law of England are easy examples of unfitness in this sense. At the very least. Once past the threshold requirement of fit. the interpreter ‘adjusts his sense of what the practice “really” requires so as better to serve the justification he accepts at the interpretative stage’ (ibid). In Law’s Empire Dworkin referred to most of those issues again (eg pp 78–86. post-interpretative stage. the interpretation must account for enough parts of the text and must consider paradigm cases as such (with the proviso mentioned earlier). returning to fit. This tentative offer is then refined and rechecked in the course of the last. In the second. Finally. see also (ibid 424). 424). At this stage. and soundness) in the Rawlsian sense explained in the previous section. we must seek an equilibrium between the soundest value a text can be taken to manifest. Now. however. Note that it is a reflective equilibrium since it involves a process of mutual adjustments (between identity. more evaluative notion of fit. it seems (though Dworkin is not explicit on this point) that the main difference between the interpretative and the post-interpretative stages is as follows: in the former. I shall postpone the analysis of the theory’s coherence basis. interpretative phase of the process of interpretation. when fit operates as a threshold requirement. not inventing a new one’ (1986: 66. the echo of the reflective equilibrium sounds very strong here. THE FISH—DWORKIN DEBATE 10 The pretext for Fish’s criticism is Dworkin’s metaphor of the chain novelists. an interpretation is actually offered. or actually. and its features as identified in the pre-interpretative stage. Fit in the postinterpretative stage is more substantially evaluative. An interpretation of a novel requiring us to disregard every second line in the book. . it seems to assume that the more fit.

See his Scientific Revolution (1962. (Fish 1983a: 273) Admittedly. . That is. to assign it a specific location within our intellectual environment. . since they are strongly embodied in our cultural and professional ambience. this passage seems somewhat obscure but the main idea is clear enough and it is anchored in the concept of prior understanding. in the interpretivist sense. Each judge is then like a novelist in the chain. 12 . Yet every novelist entering into this endeavor accepts the special responsibility of creating the best and most unified novel that he or she can. Hence. Dworkin intends this metaphor to explain the role of judges in common law adjudication in line with his conception of law as integrity: ‘Deciding hard cases at law is rather like this strange literary exercise. or could be. any difference between the nature of the assignment given to first novelist in the chain and that given to the rest. But in fact.11 Upon approaching a text. to begin a novel he 11 See Fish (1980: 268–92). ‘every novelist but the first has the dual responsibilities of interpreting and creating because each must read all that has gone before in order to establish. the first author has surrendered his freedom . .56 The Epistemic Foundation of Dworkin’s Legal Theory assignment: each is to write a single chapter of a novel that they would create collectively. These interpretative convictions do not usually rise to the surface. the notion of an ‘interpretative community’ is drawn from Kuhn’s account of ‘scientific communities’ and their role in scientific inquiry. And why is it so important? The answer to the first question is that he certainly does not. . that the first novelist has a purely creative role. . Fish argues. The first author writes the opening chapter. while the others must both create and interpret. surely. of the points or themes novels can possibly have to a novelistic construction of the words. First. . 1970). . one must realize that these convictions amount to nothing more than the fact that they are convictions which happen to be shared by a group of people at a given time and place. . Dworkin assumes. be it a novel or a legal precedent. . . He or she must read through what other judges in the past have written . Needless to say. they are latently shared by groups of people who therefore constitute an ‘interpretative community’. those who follow him are free and constrained in exactly the same way.12 But still. as soon as he commits himself to writing a novel . . . and the rest will then add their consecutive chapters. the very notion of ‘beginning a novel’ exists only in the context of a set of practices that at once enables and limits the act of beginning. what the novel so far created is’ (1985: 158). The task of the first novelist in the chain is not totally creative. the later novelists do not read directly from the words to a decision about the point or theme of the novel but from a prior understanding . . so Fish claims. they manifest a certain convergence of beliefs and attitudes which may easily change across time and space. One may well wonder whether Dworkin denies any of this. we must already possess a whole set of convictions enabling us to grasp and refer to it as belonging to a certain kind of texts. Moreover. to reach an opinion about what these judges have collectively done’ (1985: 159). Fish has two main objections to the metaphor and its implications. . he argues against Dworkin’s assumption that there is. that is.

no particular interpretation can be identified as better (or worse). whose task is creative.14 Furthermore. it is compatible with his view that interpretation is generally involved even in the pre-interpretative stage. Dworkin explicitly concedes that a rather substantive amount of agreement between interpreters on points such as identifying features of genres and ‘texts’ is necessary in order for an interpretative enterprise to flourish. a judge deciding a court case according to the color of the plaintiff’s hair). As far as I can see.13 In fact. But this distinction is unsustainable. 14 See Fish (1983a: 281). as the case may be). This is not a conceptual possibility. it is simply not the case that the more text there is. Fish contends. The significance of this ‘chain enterprise’ (that is. which is not what Dworkin says but whether what he says is consistent with his theory. the following argument. should it be so ‘new’ as to go beyond the boundaries of the prior understandings (for example. to warrant the conclusion that the prior understandings of one interpretative community are more correct than those of another. or constitute. necessarily compatible with it. being measured only with reference to the prior understandings of the given enterprise and. Dworkin does not deny this. Fish. As he later came to admit. I think. The only way in which the text ‘is there’ to be read or interpreted is determined by the convictions constituting the prior understandings of a given interpretative community. which is the second and main objection to the chain novelists’ example. who must both create and interpret. Dworkin’s later writings indicate that this was probably just as a slip of the pen (or the keyboard. he argues. But the point is that all this may fail to answer the question. does seem to draw a distinction between the first novelist. this body of shared convictions reflects nothing more than a convergence of beliefs. then there is no sense in speaking about ‘the best’ 13 Although one must admit that Fish’s complaint is not textually groundless: at some point Dworkin (1985: 158). and such an idea is partly a matter of interpretation. ex hypothesi. In other words. First. in which case it would not count as a new direction. facts which can be identified independently of particular interpretations of them. Hence also. depends on the assumption that there is a defensible distinction between interpreting a text and changing it or inventing a new one. the more constraints the interpreter faces. See also Feyerabend (1972). there are no textual facts. and the rest. a separate enterprise. or judged to belong to. this kind of consensus is what constitutes an ‘interpretative community’ (1986: 66). Fish claims. Fish then goes on to draw two conclusions.The Fish—Dworkin Debate 57 must have some idea about what novels are. Furthermore. since any such move is either conceived of as an institutional possibility (that is. . attitudes etc. which can change in time or from one community to an other. Neither a chain novelist nor a judge is able to ‘strike out in a new direction’. is an argument to that effect. across the various enterprise-determined-options. that all interpretations are ‘enterprise specific’. is advancing the claim that it is not. since any reading or interpretation changes the text. that is. of law as integrity) says Fish. in accordance with the prior understandings shared by the interpretative community). There is nothing in the ‘texts’ themselves. Second. if there are no textual facts independent of their interpretations.

the same argument reappears throughout the debate with Dworkin. and hence always dependent on various evaluative considerations. 15 See Fish 276–85. is always a matter of interpretation. that there are legal texts which have a determinate meaning prior to any particular interpretation which one would impose on them. even if Dworkin is reluctant to endorse Fish’s thesis that there are no textual facts whatsoever. what the law means. In other words. namely. that proposition is an essential part of the picture of knowledge as a complex and interrelated set of beliefs confronting experience as a coherent whole’ (1983: 293). So consider the case of law. be more or less persuasive within a given interpretative community. then.58 The Epistemic Foundation of Dworkin’s Legal Theory interpretation. the idea that meaning is somehow profoundly interpretation dependent. An interpretation can. The first is based more explicitly on the concept of coherence: ‘There is no paradox in the proposition that facts both depend on. but this is a sociological criterion. it is an essential part of Dworkin’s argument against legal positivism that understanding what the law means is always a matter of interpretation. Basically. Having said as much. I am not trying to suggest here that Fish’s thesis about meaning is tenable. there is nothing to constrain interpretations in the way Dworkin assumes.15 Roughly.) But this is precisely the kind of view which Dworkin’s theory strives to deny. and interpretation would be in place. Assuming. What makes this critic interesting. and therefore nothing to make one interpretation better than any other. If the text is not given prior to its interpretation. Fish’s critic of Dworkin can be subsumed under one main thesis: that there are no facts about the meaning of texts independent of particular interpretations of them. he must at least concede that grasping the meaning of texts is always a matter of interpretation. the theories that explain them. because it would be very difficult for Dworkin to deny Fish’s main premise. contra Fish. On the contrary. Far from it. And the reason Dworkin wishes to deny this derives from his jurisprudence. the constructive model requires some form of constraint. at least in some cases. it would be useful to see just why he feels committed to subscribe to the premises of Fish’s argument. and at the same time constrain. of course. Thus. (Which is basically the position I defend throughout this book. That is so. would basically entail that first we can understand. If there is a sense in which the law can be understood without interpretation. not an epistemic one. Thus before continuing to Dworkin’s reply. It is one of the main purposes of his ‘law as interpretation’ theory to show that understanding what the law is. is the fact that it actually points to an internal difficulty in Dworkin’s theory. Fish claims. . then it is no longer the case that every conclusion about what the law is must involve evaluative considerations. To be sure. and then there may be other cases in which we do not. in keeping with its very concept. This is basically because Dworkin wishes to avert the claim that interpretation is somehow conceptually or semantically constrained from the outset. His refutation of Fish’s criticism comprises two arguments. we can return to Dworkin’s rejoinder to Fish. I believe. The idea is as follows: we have already noticed that.

. It would only be vicious under a very crude version of realism. Of course the constraint would be illusory if that system were not sufficiently complex and structured.The Fish—Dworkin Debate 59 However. but each gives this rejection a different form. In fact. and of how this may operate as an internal constraint. checks. does not necessarily lead to a coherence theory. It provides an idea of what Dworkin presupposes in the notion of coherence. however. after all. Holism urges the realization that the totality of our knowledge is a network of interrelated beliefs. . but denies that it is a vicious one. by the internal tensions. (1983: 293. See eg Dummett (1978: 375 ff). Now. and that is why scientists can abandon theories on the ground that they are inconsistent with the facts deployed by the remaining structure of the body of knowledge. in one specific case: were the relations between facts and theory not sufficiently complex. is itself a matter of interpretation. emphasis mine) This passage is of crucial importance. is itself dependent on the particular interpretation one offers. Again. But there are. might mean the inability of this element to operate as a constraint in any meaningful sense. Dworkin admits to the circle inherent in his argument. Although Dworkin moves back and forth from holistic to coherence formulations of his theoretical assumptions. which might be regarded as a constraint. This is a highly controversial issue. Dworkin says. In other words. consider scientific knowledge: [T]he constraints of scientific investigation are imposed . it amounts to a rejection of the assumption that singular propositions can have empirical content in isolation. among the various kinds and levels of belief. seeming to endorse both concomitantly. that people’s beliefs even about the facts that make up the physical world are the consequence of their more general scientific theories’ (1983: 293). according to which propositions are expected to match some kind of ‘brute facts’. accepting (as Dworkin does) the view propounded by Fish. But we should proceed with caution. even with regard to scientific theories. and balances of the complex structure of what we recognize as scientific knowledge. It is a negative view in the sense that it provides no answer to the question of a substitute for foundationalism. but what the text is. holism also amounts to a repudiation of the analytic-synthetic distinction. and therefore what would constitute sufficient fit. Dworkin claims. 16 According to Quine (1953). it is already a commonplace that facts can be theory laden. the two concepts are quite distinct. Both amount to a rejection of foundationalism. As a consequence. One might still wonder what the answer really is. Have we not just admitted to the charge of vicious circularity? We would have. Fish’s argument boils down to the claim that Dworkin’s theory of interpretation involves a vicious circularity: interpretation must be constrained by how much it fits with the text. . if there were no functional distinctions. There thus seems to be no reason why interpretation should not be constrained by what the text means. even if it is true that the meaning of the text depends on its interpretation. within that system. with no paradox attached: ‘It is now a familiar thesis among philosophers of science and epistemology. that the texts’ identification. since it contains the core of Dworkin’s answer to the question of constraints.16 Holism.

it is a possible position. ‘A moral judgment. the point is that we do not. Dworkin endorses this option. namely. then the more encompassing the coherence. one which rests on the idea of complexity. Moral judgments can be justified or argued for. The external skeptic typically makes the following claim: the only way to give any sense to propositions of the form. the better the indication it is likely to provide. I will return to this last point shortly. coherence amounts to achieving consistency between the various kinds and levels of beliefs. Dworkin claims. 19 Elsewhere I have argued at lengths that this assumption is actually wrong: there is a sense in which values can be objective without a commitment to metaphysical realism. is true’. only by other moral judgments. Hence external skepticism only makes sense if it is true that we regard our evaluative claims as claims about some ‘external reality’. and here we reach the crux of the matter. Whether this is a genuine skeptical stance or just skeptical rhetoric is a difficult question I need not resolve here. and so forth. he endorses a specific concept of coherence.18 But external skepticism. Internal skepticism. The former is a skeptical attitude adopted from within the enterprise.17 Apparently. aesthetic judgments can be justified only by other aesthetic judgments. Skepticism arises from the denial that any plausible sense can be made of such a reality. It follows that internal skepticism presupposes the general ‘right-wrong’ picture and argues only against some (or most) of our moral or aesthetic conclusions. It is somewhat difficult to see why the so-called ‘internal’ skeptic is a skeptic at all. ex hypothesi adopts the internal (for example. Surely Fish’s argument cannot be grounded on this type of skepticism. but is viewed as an indication of the truth. [His] theory is rather a second-level theory about the philosophical standing or classification of these [eg moral] claims’ (1986: 79). On the other hand. that by affirming the objectivity of our evaluative judgments we refer to something external to the domain of those judgments: 17 Quine himself seems to have endorsed the pragmatist solution (1953: 46).19 However. But of course. In other words. and it is this fact which renders the achievement of consistency non-trivial. whereas the latter is a skepticism directed at the whole enterprise. Dworkin begins by drawing a distinction between internal and external skepticism. First. It takes up the challenge of skepticism implied by Fish’s argument. 18 . See Marmor (1995: ch 6. p. In fact. let us examine Dworkin’s second reply to Fish. Hence it must rest on moral or aesthetic arguments. 2001: ch 8). If coherence is not offered as an explication of what truth consists in. not an interpretative or moral position. Perhaps in referring to internal skeptics. though grantedly a plausible attitude. is harmless since it is irrelevant. is by assuming that moral judgments are meant to reflect some reality. namely. external skepticism denies a claim which we need not make. Since our system of knowledge is ‘sufficiently complex and structured’. it is important to realize that a coherence conception of knowledge—as opposed to a coherence theory of truth—makes much more sense when it concurs with holism.60 The Epistemic Foundation of Dworkin’s Legal Theory for which status a coherence theory of knowledge is only one candidate. ‘External skepticism is a metaphysical theory. moral or aesthetic) point of view. Dworkin had in mind those legal theorists who deny the possibility of understanding the whole body of legal material on the basis of a coherent scheme of principles.

is itself an interpretative notion. in Law’s Empire Dworkin emphasizes the second. I believe it should be clear by now what Dworkin’s answer would be. and indeed is manifest in. we can ‘stop’ non-arbitrarily at the level of a theory of self. In other words. Thus. according to the constructive model. But in fact. justice. the interpretation of legal practice. as if each realm of reflection were justified by another. a relation of coherence. To see this point more clearly. given that my reading of him is correct: Simmonds wrongly attributes a linear structure to Dworkin’s theory. an even more fundamental level of evaluation must be appealed to so as to satisfy the requirement of soundness. the distinction between external and internal skepticism becomes very questionable. Hence. we have no reason to stop at this level. The question of whether Dworkin saw that these two replies are mutually exclusive is one I cannot answer. for instance. ad infinitum. But this is inconsistent with the holism which is required of. since soundness of interpretation can be provided at this level by fit with other aspects of our knowledge. as it were. you cannot both maintain that morality is a closed system of beliefs which cannot be challenged by beliefs and convictions from other domains of knowledge. the only kind of justification I could have for acting on that view. But justice. and then you cannot claim that external skepticism is irrelevant or uninteresting. The first rejoinder. But. It must. and yet also rely on a kind of Quineian Holism. and so on. the theory is circular. it is important to realize that this circularity is vindicated by the complexity thesis and the holism presumed by Dworkin. Simmonds argues. Dworkin’s first reply to Fish. not metaphysical. for instance. is some substantive moral argument. is largely ignored in the book. [T]he ‘objective’ beliefs most of us have are moral. this answer is too crude even on Dworkin’s own account. the relation it postulates between different realms of knowledge (for instance. according to Dworkin.20 20 It is interesting that between these two answers to Fish. Surely any theory of the self must also be an interpretation. like human nature or the theory of the self’ (Dworkin 1986: 424). . (1986: 81. that is. Within such a holistic context. justice. including for example. until we must either admit to an infinite regress or decide to stop arbitrarily at one of these levels. more basic level of reflection. however. Simmonds argues that the constructive model leads to infinite regress. which can be organized coherently only within its own boundaries. If you subscribe to Quineian holism. . and the interpretation of justice must also appeal in turn to some. as Dworkin did in his former reply to Fish. beliefs . more basic one. 82) Unfortunately. let me contrast my construal of Dworkin with that of Simmonds (1987: 472). on ‘nonpolitical ideas. be based on the best conception of justice capable of accounting for the practice. they only repeat and qualify other moral beliefs. Take. relying on a holistic/coherence theory of knowledge. law. It gives the impression that moral judgments constitute a closed system. no domain of knowledge is internal. according to the model. But again.The Fish—Dworkin Debate 61 The only kind of evidence I could have for my view that slavery is wrong. self) is not a reductive one but rather a reflective equilibrium. .

To reiterate. at least when it operates as a threshold requirement. we have been looking for available constraints on interpretation. we face a difficulty. however. but insist that it contains sufficient constraints as it is. Let us take a closer look at the first premise. the conclusion that there is a vicious circularity here does not necessarily follow. As we have seen. Dworkin therefore violates his own injunction that the criteria of fit must be independent of the substantive criteria’ (1987: 479). the concept of fit. but this thesis will be placed under serious doubt if the first premise of Simmonds’s argument is denied. The plausibility of the reply to Fish was grounded on the complexity thesis. Apparently. that is. Even if the identity of the text is interpretation-dependent. each for his or her particular institutional purposes. How do we know how much fit would suffice in each particular field? The most plausible answer seems to be that this is determined by the extent to which we think it matters to distinguish interpretation from invention in that particular realm. or something is wrong with Dworkin’s theory of interpretation. which basically runs as follows: 1. according to Fish. In other words. is basically vacuous. why it is a judge’s role and duty to interpret rather than invent. Why does it matter for a judge to interpret rather than invent the legal history of his country? Dworkin’s only answer rests on the concept of integrity. For instance. the charge of circularity in the mutual dependence of identity and soundness was evaded through the assump- . 2. Fish’s argument boils down to the claim that there are none. consider the difference in this respect between a judge and a legal historian referring to the relevant legal history. or worse. Can Dworkin defend his theory by denying it? Can he claim that no damage results from allowing our convictions about fit to depend on the evaluative judgments constituting the dimension of soundness? We have already seen that Dworkin endorses a similar strategy in his reply to Fish. Now. it may be useful to look the critic presented by Simmonds (1987: 478–80). with the text it purports to interpret since there is no text independently of the particular interpretations imposed upon it. THE CONCEPT OF FIT ONCE AGAIN To sum up so far. since the identity of the object of interpretation is totally dependent upon the particular interpretations offered. ‘law as integrity is also the substantive interpretation of legal practices that is being offered. upon the dimension of soundness.62 The Epistemic Foundation of Dworkin’s Legal Theory 4. must be independent of the substantive value judgments constituting the element of soundness. no interpretation can fit better. either something is wrong with the argument. Dworkin maintains. In order to have a better sense of this reply. ‘There is just one small problem. Dworkin’s main reply to this skeptical argument is to maintain the structure of the theory. Our convictions about fit.’ Simmonds says. 3. otherwise there would be no way of distinguishing interpretation from invention. Now consider a theory of adjudication. Law as integrity explains just this.

First. consider the possible criteria of complexity in further detail. fit can be a significant constraint in the case of science because the complexity thesis holds. But the concept of complexity must also embrace a qualitative criterion. value dependence per se does not necessarily lead to simplicity. Does Dworkin’s interpretative theory of law meet these criteria? Hardly. . But it seems that Dworkin’s attitude to holism is rather hesitant. A theory is warranted in relying on the complexity thesis if it accounts for beliefs which (at least prima facie) are different in kind or source. not because fit is independent of justifying values. Now apply Simmonds’s argument to this model. ‘Why does it matter that a scientist interpret rather than invent?’ we would have to reply that it matters as long as. and even belong to very different realms of knowledge. To see why. the value of coherence. this does not undermine the concept of fit in scientific theories. the idea of complexity must embrace a quantitative criterion. But then. In other words. The general justifying value determines the level of fit in this case too. And as we have already seen. Consider science for instance: suppose it is agreed that scientific inquiry is basically motivated by the idea of prediction. seem to depend on basically one heuristic value. it is not value dependence. Dworkin himself concedes that a coherence-based epistemology is rendered very dubious without the presence of complexity. The whole idea of ‘checks and balances’ becomes suspect when it turns out that everything emerges from the same evaluative criterion. but actually denies it in the other reply. that is. which undermines the idea of complexity in Dworkin’s legal theory. prediction. and without much help. Perhaps a coherence-based epistemology makes sense when it is accompanied by holism and applied across the board. since our convictions with regard to both identity and fit so clearly depend on the substantive justification. but the fact that all the elements of interpretation. This will not rescue Dworkin’s theory of interpretation though. at best. the epistemological foundations of this theory remain in doubt. and to the extent that. laws or regularities. Coherence is just doing too much work here. per se. However. We would soon end up with the same conclusion about fit. mathematics. on the selfsame values meant to vindicate the given interpretation. A theory which accounts for very few of our beliefs and shows them to be coherent would hardly ever rise above triviality. One must take caution at this point. When asked. on the assumption that scientific inquiry is similar to interpretation in the relevant respects. we leave very little room for complexity. And as Simmonds’ argument seems to indicate. It embraces notions such as sense datum. At least some of the beliefs embodied in these domains differ in kind or origin. This is why the idea of complexity can play a significant role in such a theory. But in admitting that fit too depends on soundness. He relies on it in one of his replies to Fish. probabilities.The Concept of Fit Once Again 63 tion that the dimension of fit is sufficiently complex. without it. epistemic as well as evaluative. holism does not quite fit with other aspects of Dworkin’s theory of interpretation. that is. as I have already indicated. This is a crucial point. consider what the concept of fit involves in a physical theory. and so forth. logic. prediction is taken to be the scientist’s aim.

can turn just about any expression on its head. if only ingenious enough. however. If we manage to communicate. Fish just assumes. If legal texts can have a meaning that is not entirely dependent on a process of interpretation. showing that he relies on a completely misguided conception of meaning. much more directly. This is hardly a serious theory of meaning. then it is at least sometimes the case that the law can simply be understood. trying to show that even if meaning is entirely interpretation dependent. and I’m willing to assume that it is a fact. The problem lies in the assumptions. it is only because social pressure and shared convictions create a convergence of mutually shared interpretations. And if that is the case. Dworkin sought to confront Fish on his own ground. So for Fish. So here’s Dworkin’s problem. without the mediation of interpretation. the skeptical conclusions about interpretation do follow. and applied. I believe: instead of confronting Fish head on. From the fact. So why not challenge the assumptions? Perhaps because Dworkin felt that his own ‘semantic sting’ argument is just as skeptical about meaning as Fish’s argument? Possibly. The problem is that on the basis of Fish’s skepticism about semantics. It is no longer the case that every conclusion about what the law is. and parasitic on it. The more important reason. The kind of coherence epistemology that Dworkin relies upon in his reply to the brand of skepticism advocated by Stanley Fish very much looks like the case of using a cannon to kill a fly.64 The Epistemic Foundation of Dworkin’s Legal Theory Let me conclude with a diagnostic observation. interpretation is an exception to the standard understating of language and communication. without much argument (that is. it simply does not follow that understanding the meaning of an expression is an instance of a correct interpretation. Fish’s argument is based on a rather naïve skepticism about meaning which could have been confronted. semantics is just a happy coincidence. not in the argument built on them. and dismissed. unless anecdotes count as arguments) that a text can mean anything we just want it to mean. People cannot really know the meaning of the expressions they use because there is nothing to know there. that any interpretation. Fish’s skepticism about interpretation does not follow. then the argument from interpretation against legal positivism collapses. depends on evaluative considerations about what it ought to be. . is the one I have already mentioned: it resides in Dworkin’s jurisprudence. it is a mystery how people actually manage to communicate in a natural language. As we have seen in Chapter 2.

Hence. The appropriate account of the concept of law is a semantic analysis of what ‘law’ means (and. Such a semantic analysis of ‘law’ would show that the term refers to a real or natural kind of entity whose essence and constitution do not consist of social conventions. 1 See particularly his ‘Semantics of Judging’ (Moore 1981). in essence. adherents to this legal theory advocate a semantic approach to jurisprudence. that legal theory is.1 I shall refer to it as ‘Semantic Natural Law’. concepts characteristic of legal language). Realism. for that matter). though probably divergent from it in certain details. The following three theses should provide a rough summary of the theory I have in mind: 1. The present chapter sets out to criticize this view. a theory about the meaning of the concept-word ‘law’. and ‘The Interpretive Turn in Modern Theory: A Turn for the Worse?’ (1989a). 3. and a version of natural law true. and Natural Law T HE VIEW THIS chapter will scrutinize is opposed to Dworkin’s. in substance. Second. But the main portion of this chapter will strive to show that the attempt to analyze the concept of law on the basis of semantic realism is one which is bound to fail. namely. I will elaborate on a possibly more modest version of semantic natural law. tantamount to Michael Moore’s legal theory. but more so in the reasoning offered to support it than in its final conclusions. and Kress’s critique of Dworkin (1987). and how a realist account of the meaning of ‘law’ can support a doctrine of natural law. I shall begin with an outline of what realism in semantics means. because my primary concern is with a certain type of reasoning which has attracted several legal philosophers. 2. They explicitly affirm just what Dworkin’s interpretative approach strives to deny. which employs semantic realism in statutory interpretation. First. this theory espouses semantic realism. of the meanings of other. See also Hurd’s ‘Sovereignty in Silence’ (1990). Later on. in Chapter 7. rather than with the details of any particular theory. thus linking an account of the meaning of ‘law’ with a natural law doctrine. which is. unlike Dworkin (or myself. related. ‘A Natural Law Theory of Interpretation’ (1985). perhaps.5 Semantics. . discovery of the real essence of law renders anything like legal positivism false.

independently of whether we can recognize or confirm this. Strawson (1971: 1–28) argues that specific utterances of such statements (an utterance of the above in 1990. above all else. 3 . An alternative strategy for coping with this type of truth-value gaps would be to maintain the following: for a realist to deny that the principle of bivalence holds with respect to a subclass of statements within the class he is a realist about. realism regarding a given realm of knowledge entails the possibility of verification-transcendent truths within that realm. According to Dummett. For instance. I will use the terms ‘statement’ and ‘proposition’ interchangeably. as applied to some given class of statements. equivalent to ‘not true’). independent of our knowledge. for example) are devoid of truth-value. must maintain a clear distinction between the truth of a statement2 and the recognition of its truth. and Natural Law 1. Thus. it makes perfect sense to hold different positions with respect to different realms or classes of statement. But. it is questionable whether this formulation of realism is capable of capturing the nominalist-realist debates concerning universals (see Dummett (1981: 437). and cf (1978: preface)). by some objective reality whose existence and constitution is. again. On the other hand. realism entails the principle of bivalence. Dummett captures this intuition in the following formulation: The primary tenet of realism.’ Contrary to Russell. he would have to maintain that certain conditions for a statement to be correctly asserted must have failed to obtain in that 2 Following Dummett. admitting truth-value gaps may not seem inconsistent with realism. In any case the ontological status of universals is quite irrelevant to our concerns. This requires several clarifications. because ‘of the intimate connection between the notions of truth and meaning’ (1981: 434). a view on the way our thoughts and language relate to the world. however. Most importantly. A realist must maintain. (1981: 434) The gist of this formulation is a non-epistemic notion of truth: a realist. which states that every statement is determinately either true or false (where ‘false’ is the classical negation operator. THE MEANING OF ‘REALISM’ AND THE MEANING OF ‘LAW’ Realism is seen as a position on a metaphysical issue. this formulation also bears upon the theory of meaning appropriate to the relevant class of statements. there is the question of truth-value gaps. with respect to a certain class of statements. and deny realism in mathematics or morality etc.3 In other words. Realism. as maintained explicitly by Meinong’ (1981: 438). however. given utterances of which contain a singular term with no reference. that there is a determinant reality rendering the statements in that class either true or not true.66 Semantics. To begin with. is that each statement in the class is determined as true or not true. as in Russell’s classical example. one can maintain realism with respect to statements about the physical world. independently of our knowledge. ‘The king of France is bald. Note that one need not hold a realist (or anti-realist) position tout court. ‘even the belief in truth-value gaps due to failure of reference for singular terms represents a repudiation of realism in the relevant aspect: it is opposed to realism concerning non-existent objects. as Dummett emphasizes. Consider Strawson’s analysis of statements.

and failure of reference for singular terms.5 The second point. Two further clarifications regarding realism are in place here. that it is impossible for A to do both x and y. however. First. Suffice it to say that examples of failure to satisfy the conditions of correct assertability would typically involve vagueness. Now. Suppose that in a particular situation both ‘A ought to do x’ and ‘A ought to do y ’ are true statements. In short. 5 For example. . The complex notion of correct assertability cannot be articulated within the bounds of the present discussion. According to Moore: John Finnis.4 Morality might be thought to be a case in which realists need not subscribe to the principle of bivalence. but it is widely acknowledged that there is a serious difficulty in any attempt to reconcile vagueness with prepositional logic. While the former entails the latter. one might be inclined to say that in such cases the statement ‘A ought to prefer x over y’ is neither true nor false. concerns the relation between realism and reductionism. most theories about vagueness deny this. This would be a mistake. however. in which the principle of bivalence would hold. It is usually thought that a full reductionist 4 Vagueness is actually a rather special case. Finnis accordingly rejects the principles of bivalence and stability for moral assertions. since the moral gaps to which Moore is referring here are not truth-value gaps. The fact that there are all things considered judgments on practical dilemmas which are underdetermined by moral reasons does not negate the applicability of bivalence to the realm of moral statements. one could easily construct an artificial language game. as the latter demands that every statement expressing a moral prescription be determinately either true or false. since the statement is simply false. further. (1989a: 879) This is a mistake. the opposite is not the case. equivocal statements. is a realist about moral entities and qualities yet believes that we can ‘run out’ of moral reality. The fact that each statement in a certain class is determinately either true or false does not entail that it is necessarily rendered true or false by an objective reality whose essence and constitution are independent of our knowledge. which bears more relevance to our topic. Suppose. while one would hardly need to be a realist about such a game. and that no further moral grounds are available for deciding between the two options. In such cases the realist adhering to this strategy would hold that the linguistic expressions in question were not genuine statements. it is important to realize that the relation between realism and the principle of bivalence is not a symmetrical one. for to ‘run out’ of moral reality is to admit that there are sentences about morality that are neither true nor false. for example. The epistemic theories of vagueness maintain that bivalence holds with respect to borderline cases as well. and its negation true: ‘It is false that {A ought to prefer x over y}. See Williamson (1994). moral realism which admits of gaps is consistent with the principle of bivalence. not that every possible practical choice. gaps consist in the fact that certain competing moral claims may turn out to be incommensurable. But this is still consistent with the principle of bivalence. all things considered. be either morally right or wrong. from a logical point of view. For a realist with respect to moral statements. in the sense that one might not have any further moral grounds on which to adjudicate between them.The Meaning of ‘Realism’ and the Meaning of ‘Law’ 67 subclass (ibid).

rather obvious. the reduced class does not really exist. . subject to being a realist position about the central-nervous system (ibid). He has called these naive and sophisticated realism. as Dummett suggests. however. Nevertheless the distinction itself is important. Realism.68 Semantics. it is traditionally associated with the eighteenth-century distinction between primary and secondary qualities. the idea is clear enough: when a given class of statements is fully reducible to another. Bearing this clarification in mind. Although this version of naïve realism fits Dummett’s distinction quite well. because of the plausibility of the principle of bivalence for statements about the central nervous system’ (1981: 448). it should be clear that contemporary debates over realism are not confined to this eighteenth-century (indeed naïve) controversy. I shall continue to use Dummett’s terminology. according to ‘sophisticated realism’ it can count as a realist position about psychological statements. According to Dummett. naïve realism being the thesis that secondary qualities. To 6 A word of caution about Dummett’s terminology: Naïve realism is not a new term. and. let us pause here to see what bearing such an account might have upon the nature of law. A and B. ‘far from calling realism concerning psychological statements in question [such a reductive thesis] tends to reinforce it. to be a realist about A. sense: it is opposed to what might be termed full-blooded realism concerning psychological statements. such as color for example. mutatis mutandis. This is not merely a matter of philosophical tradition. Intuitively. however. and Natural Law thesis between two classes of statement entails an anti-realist position with respect to the reduced class. Central-state materialism does call into question realism concerning psychological statements in at least one. If each and every statement in A is fully translatable to a statement in B. suppose further. suppose that such a reductive relation obtains between two classes of statements. only requires a full translation of each and every statement in A to a statement in B. a requirement which is met by the reductive relation (assuming that it is complete). Hence. that one can hold a realist position about B.6 It is important to realize. In other words. that in most familiar contexts it is the naive version of realism which is debated. which maintains that each and every statement about the mental is fully reducible to statements about the central nervous system. Things are not quite this simple. as we see them. as the example of central-state materialism itself shows. Dummett believes this precisely to be the case with central-state materialism. Having said as much about the minimal implications of realism. namely. and if one is a realist about B. do really exist in the world. that there is a mental reality which renders either true or false each and every psychological statement. this reductive relation would seem to mean that statements apparently about things of one kind are really about things of some other kind. as will shortly become evident. then one would seem. for example. It is a prerequisite of sophisticated realism that reduction be complete. Now. Centralstate materialism is only an anti-realist position on the naive version of realism. Such a full-blooded realism asserts of the mental what central-state materialism denies. as it were. It would hence be much more accurate to draw a distinction between two kinds of realism. yet such full reductionist doctrines are not easily come by. maintaining a realist position about A.

for instance. It is also quite easy to see how realism concerning the meaning of ‘law’ would. each and every statement in LP must be presumed to be determinately either true or false. Now it is fairly obvious that such a realist account of the meaning of ‘law’ is incompatible with the main tenets of legal positivism. rejects realism in favor of a coherence conception of knowledge and morality and I doubt that Finnis subscribes to anything like semantic realism about the law. LP in a given legal system. whether the principle of bivalence is applicable to 7 The formulations would vary according to the kind of legal rule in question: if the rule does not impose an obligation. Si. So let us now turn to the question of whether or not it makes sense to hold a realist position with respect to the meaning of ‘law’.) But again. let us call it LP. but. as such. I am by no means claiming that semantic realism must be maintained by anti-positivism. the truths of legal propositions cannot be conceived of independently of the conditions for the recognition of their truths. then it would make sense to claim that the truth of statements in LP could be discovered or revealed. or of any similar form. Hence also. as one discovers a law of nature. contemporary legal positivism entails an anti-realist doctrine on the meaning of ‘law’. Thus. The reason for this is as follows: one of the main tenets shared by legal positivists is the thesis that law is essentially a matter of social conventions. that Dworkin. or by any natural law doctrine. If there were an objective reality rendering legal propositions determinately either true or false. which consists of all the statements about what the law requires (or permits. the formulation would vary accordingly. at least as maintained by Hart. the result remains the same. A realist would merely have to show that there exists a possible interpretation of ‘law’ enabling one to speak of the extension (or reference) of ‘law’ in terms of a determinable class of statements.The Meaning of ‘Realism’ and the Meaning of ‘Law’ 69 begin with. it would surely be easier to maintain a classical natural law doctrine if the plausibility of realism about LP could be substantiated. would be comprised of all the statements of the form: ‘According to the law in Si. We can stipulate a class of statements. we have already seen in detail. This should not be too difficult. As I have already mentioned in Chapter 1.7 Note that there is no need to claim that LP is semantically equivalent to the meaning of ‘law’ in any standard use of the latter. and Raz. authorizes etc) in a given legal system. support a natural law doctrine. A ought to do x’. Whether one prefers Hart’s formulation of the Rule of Recognition or Raz’s formulation of the sources thesis. for one. that is. (In fact. This is what LP is meant to signify. and realism about the meaning of ‘law’ are directly opposed. Let me begin by asking whether it makes sense to claim that each and every statement in LP is determinately either true or false. The conventionalism espoused by legal positivism. if true. confers power. Kelsen. Thus realism as applied to law would entail that each and every statement in LP is rendered either true or false by some objective reality whose existence and constitution are independent of our knowledge. we need an interpretation of the meaning of ‘law’ which would enable us to speak of the truth-values of statements. .

But this is simply false. Can a realist about law then admit to the truth of the statement ‘according to the law A ought to do not-x (in the same set of circumstances)’? Surely not. In such cases it may be of importance (morally or otherwise) to have an established decision. We should thus be willing to admit. we should note that for a realist with respect to legal propositions. however. Suppose it is held to be true that according to morality. Hence. due to the fact that legal propositions refer to moral considerations. At the same time the realist would have to disallow any contradiction between law and morality. The reason is quite straightforward: numerous legal issues are morally neutral (at least within a certain range). and even logically. . This. means the disallowance of any possibility of contradiction between these two realms. and that one does want to take a full-blooded natural law doctrine seriously. difficulties. Legal systems often comprise morally. a similar. The latter makes it obvious that the type of natural law theory entailed by the ‘semantic natural law’ doctrine is such a strong one as to make it doubtful whether anyone actually subscribes to it. implicitly. to establish realism with respect to law. Realism. If the principle of bivalence is held to apply to law. the first step would be to advocate a realist position with respect to the class of moral statements as well. though necessarily required of the realist. reality does not admit of logical contradictions. involve serious. ‘A ought to do x (in a given set of circumstances)’. as within the realm of morality. How would one cope with the first difficulty. A prominent example is the case where the law operates as a coordinating factor. 2004: 27–32). the law cannot impose a set of inconsistent demands. Maintaining the existence of a determinate reality which renders either true or false every statement in LP. a realist would have to show that the principle of bivalence holds with respect to statements about the law. those legal issues which are not determinable on moral grounds? How is the principle of bivalence to be applied to such cases? Suppose. namely. In the first place. It would mean taking Aquinas’s lex iniusta non est lex much more seriously than proponents of modern versions of natural law doctrine could wish. equally serious one would still emerge. inconsistent prescriptions. or morally insignificant. Both of these theses. even from the perspective of natural law theories. Furthermore. that the possible applications of a legal rule are compatible with several conflicting inter8 9 Moore (1982) has argued at length for a realist position in morality. perhaps even more often. and especially one like Moore who wishes to maintain a natural law theory. not to say devastating. even if this difficulty were ignored. within a certain range of options). we cannot accept that realism about morality would settle the issue over realism in law.70 Semantics. even when the case is not determinable on moral grounds. it follows that. I have elaborated on this in ‘The Rule of Law and Its Limits’ (Marmor. often doing so explicitly and. while it is (morally or otherwise) insignificant what decision is eventually taken (that is.9 But suppose I am wrong here. and Natural Law law. for example. at the very least. at least for the sake of the argument.8 However. the plausibility of realism in morality.

at time t. The only conclusion I am indicating is that unless such a full-blooded reduction is presumed. But of course. Thus. which concentrates on word meaning. Now I am by no means claiming that contemporary legal positivism is a realist doctrine. It is. 2. Instead. a full reductionist thesis with respect to a given class of statements is indeed compatible with a sophisticated version of realism. and hence. It is the naïve version of realism which is presently being debated. Can we say that each of the options is determinately either true or false? What would enable us to do so? One natural suggestion might be a reductionist thesis about the meaning of legal propositions. about the commands of the sovereign. which concentrates on the notion of ‘truth’ (and sentence meaning). . that x’—which is. those who subscribe to semantic natural law tend to draw their conclusions from Putnam’s theory of reference. embarrassingly. there is just one problem in conceding this proposal. none of which is morally (or rationally) significant. If my arguments in the previous section are correct.11 10 Perhaps Austin is the only legal positivist one can think of whose views entail something like a sophisticated realism. would mean that ‘at some time prior to t. Their reasons will become apparent once we take a look at Putnam’s theory of natural-kind predicates. this is not the kind of realism about law that semantic natural lawyers have in mind. though.Putnam’s Theory of ‘Natural Kinds’ and the Concept of Law 71 pretations. 11 The main source of the following presentation is ‘The Meaning of “Meaning”’. Putnam (1975: 215–71). In other words. how a realistic thesis could be held with regard to the legal domain. though it falls far short of doing justice to the richness and subtlety of his theory. the possibility of full reductionism has been criticized and consequently jettisoned by positivists such as Hart.10 On the contrary. plausibly. PUTNAM’S THEORY OF ‘NATURAL KINDS’ AND THE CONCEPT OF LAW Despite its centrality to contemporary philosophy of language. and Raz. As explained above. a legal positivist thesis. then the reasons for this should be clear enough. he maintained that all statements about the law are fully reducible to statements about past events. any proposition of the form x is the law in S. For someone like Moore. even on a sophisticated version of realism. is not popular with those legal philosophers who find semantic natural law appealing. determinately either true or false. that there is an objective legal reality which renders determinately either true or false each and every statement about the law. Kelsen. To the extent that one can be a realist about past events (of the pertinent kind). Dummett’s formulation of realism. According to a possible (though not necessarily accurate) interpretation of Austin. namely. semantic natural lawyers wish to assert that which Austin strove to deny. A brief summary of Putnam’s main theses will have to suffice here. suppose one holds the view that a legal proposition is meaningful if and only if it can be fully reduced to a set of propositions about past events. it is hard to see how all statements about the law could be subject to the principle of bivalence. Austin’s reductionist account would turn out to be sophisticated— though not naïve—realism about the law. as shown in Chapter 3. it has been authoritatively decided in S.

72 Semantics, Realism, and Natural Law
Putnam’s central attempt aims at establishing externalism with respect to the
individuation of linguistic contents. That is, an ‘internalist’ would hold the following assumptions which, Putnam claims, cannot be satisfied jointly:
1. To know the meaning of a term is to be in a certain psychological state.
2. No psychological state presupposes the existence of any entity other than the subject
to whom that state is ascribed.
3. The meaning of a term determines its extension (or reference).

To show that meaning (that is, as characterized above) does not determine reference, Putnam employs the now famous example of Twin Earth. Suppose that
Earth and an imaginary Twin Earth differ only in the chemical composition of the
substance called ‘water’ in both worlds. On Twin Earth it is composed of XYZ
instead of H2O, although it is perceptually indistinguishable from H2O. Prior to
the 1750 discovery of the chemical composition of water on Earth, people on both
Earth and on Twin Earth could have shared the exact same psychological state
when referring to water, despite the fact of referring to different substances.
Identical mental states, then, need not indicate identical extensions. Furthermore,
once such a discrepancy in the extension is revealed, we would say that XYZ on
Twin Earth was mistakenly called ‘water’, not that the meaning of ‘water’ had
changed. The example is thus taken to demonstrate how two speakers can be in
exactly the same psychological state, while the extensions of the term associated
with this state nonetheless differ in their respective idiolects.
Putnam’s explanation for this possibility is that we use natural-kind words (and
many other nouns) of a type which he calls indexical, to designate, ‘rigidly’,12
specific kinds of entities, whatever their real nature may eventually turn out to be.
This position is often called externalism, since it admits that reality—the actual
nature of things—forms a part of meaning.
Now, to account for the fact that people can use indexical words despite their
frequent inability to specify the precise extension of these words, Putnam incorporates a doctrine which he terms the division of linguistic labor: people are able
to use words like ‘gold’ and ‘elm’ despite their inability to identify gold or elm with
certainty, since they can rely on a subclass of speakers, that is, experts, to reach
such identifications. The meaning of an indexical word should not, however, be
equated with any particular account of its reference given by experts in a specific
field. The latter should always be regarded as only the best approximation of the
real reference at any given time (Putnam 1975: 227–29).
Finally, Putnam acknowledges that many predicates are not indexicals. Certain
words (which Putnam calls ‘one-criterion words’) are synonymous with a description in terms of necessary and sufficient conditions. Over the years, Putnam has
shifted the position of the line between the two. In the ‘Meaning of “Meaning” ’,
for instance, he holds than an artifact, such as a ‘pencil’ is ‘an indexical as “water”
or “gold”’ (1975: 243). Later, though, he seems to have conceded to the contrary
(1983: 74–75).
12

The term is of course Kripke’s (1972), the idea being that indexical predicates are rigid designators.

Putnam’s Theory of ‘Natural Kinds’ and the Concept of Law 73
Be this as it may, we are now in a position to see why Putnam’s account of
indexical predicates proves so appealing to legal philosophers.13 Showing that
‘law’ is an indexical concept, such as ‘water’ or ‘gold’, would entail conclusions
which are highly favorable to the semantic natural law doctrine. To see this, let us
concentrate on the point at which Putnam’s account of indexical predicates converges with realism.
One of the most important implications of Putnam’s theory is the following: for
any indexical word, it should be possible for a whole community of speakers to
misidentify its extension. As the extension of a term is just what the term is true of, the
possibility of misidentification rules out an anti-realist position which, as we have
already seen, denies that truth and its recognition are completely separate notions.
Consider one of Putman’s examples. Suppose that in Archimedes’ time, certain
pieces of metal, X, were indistinguishable from gold, while today with the aid of
modern techniques, we could easily distinguish between the two. Now, assuming
the indexicality of ‘gold’, Putnam is bound to say that although the Greeks of
Archimedes’ time could not distinguish gold from X, X did not lie within the
extension of ‘gold’ even then (Putnam 1975: 235–38). Or, consider again the Twin
Earth example. For Putnam to be able to say that XYZ on Twin Earth is not water
(although Twin Earthians may mistakenly have called it ‘water’), he must presume
that the extension of ‘water’ can be misidentified by Earthians as well (as indeed it
could easily have been prior to 1750). The alternative view would be an anti-realist
one, namely, that the ability to recognize the extension of words like ‘water’ and
‘gold’ is a constituent of their very meaning, ruling out the possibility of extensive
misidentification, that is, on the part of a whole community of speakers.14
Thus, showing the concept of ‘law’ to be indexical would constitute a repudiation of the brand of anti-realism entailed by legal positivism. Surely, no conventional understanding of law could allow for the possibility of an extensive
misidentification of the law. Furthermore, establishing the indexicality of ‘law’
would give meaning to the idea that there is more to discover about the ‘real
nature’ of law, as it were, than that which is perspicuous in the rules or conventions themselves, and the practices of applying them. In other words, the indexicality of ‘law’ would support the age-old natural law doctrine, that the law can be
discovered even where there are no rules or conventions which settle the issue.
We are thus faced with the question of whether or not it makes any sense at all
to see ‘law’ as an indexical concept. Recall that for ‘law’ to be an indexical predicate, it must be possible for a whole community of speakers—including experts—
to misidentify its extension. Is this possible? Is it possible for a whole legal
community to make a mistake about the identification of their laws?
13 See Moore (1981: 204). See also Kress (1987: 854–60), who advances a Putnamian account of the
meaning of ‘law’ as a rejoinder to Dworkin’s ‘semantic sting’ argument.
14 I am not claiming that an anti-realist view rules out the possibility of any misidentification.
Clearly, even an anti-realist must admit that certain types of misidentification are possible, eg when a
word is used incorrectly. But what the anti-realist cannot admit is the possibility of extensive
misidentification, namely, when a whole community of speakers is concerned.

74 Semantics, Realism, and Natural Law
Let us construct an example analogous to Putnam’s story of the misidentification of ‘gold’. Take a certain legal system, say Roman law in the first century
AD; let us presume that a certain norm, P, was recognized by the Roman lawyers of
the time as part and parcel of their legal system. Does it make sense to say that this
community of lawyers has made a mistake, since according to the ‘real nature’ of
law, P did not lie within the extension of their legal system even then, despite their
inability to recognize this?
I take it that the negative answer to this question is self-evident; such an extensive misidentification in law would seem profoundly mysterious. But the fact that
a philosophical doctrine yields mysterious results has rarely convinced philosophers to discard it, so perhaps something more should still be said about this issue.

3. REAL LAW?

Realism about the legal domain requires a crucially important premise. It must be
assumed that there is a possible distinction between what the law really is, and
what it is taken to be by any particular group of people. This is a distinction with
which we are familiar from the moral domain. With the exception of a very crude
version of relativism, nobody really denies that people can be mistaken about the
moral views they hold. So there is, at least at some level, a distinction between the
moral views that people actually hold, and those truths about morality which they
ought to hold. Without this distinction (which HLA Hart has called ‘positive
morality’ v ‘critical morality’) no realist stance with respect to the moral domain
would make any sense.15 Now, for realism about the law a similar distinction must
be presumed. The realist must maintain that not everything a community of
lawyers believes to be the law really is the law. Law must have a critical aspect, as it
were, which may, or may not, be recognized correctly by the pertinent agents.
At the most abstract level, there are two possible ways of construing this idea of
critical law: the critical perspective of law can be viewed in either instrumental or
non-instrumental terms. Moore’s functional conception of law is a good example
of the former. On his account law’s critical normativity consists in its ‘functional
essence’. This functional essence can be discerned by asking: ‘What are the distinct
goals that law and legal systems serve?’ (Moore 1989a: 887). Not surprisingly,
Moore concedes that law’s purposes are basically moral and political: ‘that law
serves the goals of liberty . . . of equality . . . of substantive fairness . . . of procedural fairness . . . of utility . . . etc’ (ibid). Thus, critical law, according to Moore, is
that which will ‘maximally satisfy the rightly ordered set of some such values’ (ibid,
emphasis mine).

15 To be sure, the reverse does not hold: it is not the case that if you maintain such a distinction
between critical and positive morality you are thus committed to realism about critical morality. As I
have argued at length elsewhere (Marmor 2001), objectivity about morality does not necessarily entail
realism.

since such a view about the nature of law. or rather its ‘form’. suggested by Weinrib (1988). is quite inaccurate. then there is no distinction between the critical evaluation of law from a moral as opposed to a legal point of view. According to this view. Suppose. leads the non-instrumentalist conception of critical law to a coherence theory of truth in law. That is so. from the perspective of other normative-critical domains.Real Law? 75 The problem with this instrumental conception of law’s critical aspect is that instead of providing a concept of critical law. Nor would it help to maintain (counterfactually. It only means that there are certain unique social functions of this practice which we can only grasp by applying moral criteria and moral judgment to its evaluation. autonomous. In my Positive Law and Objective Values (Marmor 2001: ch 1) I argue that constitutive conventions partly create their own point or value and thus render the practice they constitute partly. that law’s critical evaluation is independent of any of its moral or political dimensions. moral in purpose or character. 17 That is. as Weinrib prefers to call it. indeed. It must be the case that a complete understanding of the various functions of law in our society requires reference to the moral domain and moral evaluations. (I know that it is a mystery to some people what that moral aspect could be. Even Plato himself. Law’s critical aspect. that there are certain moral ends or functions which are unique to the social institution of marriage. to the best of my knowledge. unless one adopts a Platonist construal of legal form. simply because many functions of the law are.) Surely that does not render the practice of marriage anything like a functional kind. the truth of a legal norm—as opposed to its validity—is independent of the alleged ends it is taken to enhance. however. None of this affects the argument here. As Weinrib himself realizes. that the social practice of marital relations serves certain moral functions which are unique to this practice.16 Thus. Suppose. I would add. but I have no idea how to understand the contention that legal form should be construed on such a Platonist ontology. if I have understood him correctly. that it can only be evaluated externally. however. which draws on the nature of constitutive conventions.17 This. as it were. I realize. By this latter he means. it simply provides an application of critical morality to law. in turn. but I will assume that they are mistaken. consists in what he calls the ‘immanent rationality’ of law (1988: 955). in other words. In any case. This. If the criteria of legal truths are seen as given in terms of law’s moral and political ends (or functions. As Weinrib explains: 16 A note on the revision here: in the first edition I probably gave the impression that I hold the view that law does not have any autonomous aspect whatsoever. as the presumption is largely false) that there are certain moral and political ends which are somehow unique to law. this non-instrumentalist understanding of critical law makes sense only if confined to the structure of legal reasoning. it relies on conventionalism as the foundation of legal practice. law’s ‘functional essence’ turns out to be critical morality in disguise. . for example. a non-instrumental construction of critical law would seem a more promising attitude. did not advance such an extraordinary claim (but perhaps only because he was contemptuous of lawyers). it is clear enough that Weinrib does not espouse such an interpretation of legal form. if one prefers). is clearly the anti-thesis to realism. though in a very limited sense. But this is something that no legal positivist has ever sought to deny about the law.

not even if we presume the latter to be compatible with a correspondence conception of truth. 18 It is not clear that Weinrib himself wants to adopt a realist position with respect to the meaning of ‘law’. he concludes: Coherence is the criterion of truth for the formalist understanding of juridical relationship. hence this is not necessarily a criticism of his article. the critical aspect of law can hardly be characterized as autonomous or immanent rationality. and hence with realism. Therefore. unlike morality. for then it would no longer be immanent. 972) But this is not quite clear. even if some notion of critical law can be construed on the basis of a coherence conception of truth. would still not do. is directly at odds with a realist conception about that class. This. such a notion of critical law does not admit of realism. for the very reason due to which Moore’s functionalism fails: if the criteria of legal truth are given in terms of moral values. the term ‘criterion of truth’ is ambiguous.18 Note that Weinrib must confine his construal of the criterion of coherence to the epistemological dimension. Realism. would violate his injunction that formalism is not concerned with the moral or political desirability of legal arrangements or institutions. Patently. That is. To begin with. Such an intelligibility cannot be validated by anything outside itself. while others. but with whether it is intelligible as part of a coherent structure of justification. The reason coherence functions as the criterion of truth is that legal form is concerned with immanent intelligibility.76 Semantics. we must shift from a coherence theory of truth to something like a coherence theory of knowledge. Hence. As shown in Chapter 4. can only be critically evaluated from the perspective of other normative domains? One is inclined to see the reason in the fact that law. (1988: 973. Either it means that the truth of legal statements consists in coherence. for example. such as morality. such as law. critical law cannot be distinguished from critical morality applied to law. This. Maintaining that coherence was a justificatory value. Hence. But on such holistic grounds. however. or else that coherence is the only (or primary) indication of truth in law. It might be objected at this point that we still have not reached the root of the matter: why is it the case that certain normative domains. along the lines suggested by Dworkin’s concept of law as integrity. and Natural Law The formalist’s concern is not with whether a given exercise of state power is desirable. either in its own terms or in the terms of the larger ends it serves. . But the fact that he seems unaware of the distinction between a coherence theory of truth and a coherence theory of knowledge seriously obscures his position. a coherence theory of knowledge only makes sense within the context of a thoroughly holistic epistemology. The former option would not do for the purposes of establishing the possibility of realism in law. holism and the autonomy of law are not easily reconcilable. a coherence conception of truth with respect to a certain class of statements. Nor would such a claim be compatible with the notion of critical law which the realist seeks to substantiate. can be conceived of as having immanent or autonomous critical aspects. we must assume that Weinrib means coherence to be an indication of truth.

See Putnam (1975: 243). and concepts which are cultural-relative only in a partial or derivative sense. However. one can make a stronger claim: to the extent that something is a purely cultural product. must deny the possibility that critical morality be at all culturally dependent. like legal institutions. But the realist about aesthetic statements would have to maintain that aesthetic evaluations are not the products of culture (though perhaps partially sensitive to cultural divergence). . the relation between law and morality seems analogous to that between art and aesthetics. 19 Putnam sometimes gives the impression that for a concept to be a product of culture. Hence. although from a different perspective. there seems to be a rather obvious connection between antirealism and cultural relativity. similar relations obtain between the concepts of art and aesthetics. a product of culture.19 The above distinction may be illustrated as follows: imagine yet another Twin Earth whose inhabitants differ from us in two respects: First. This is a puzzling thesis and I do not see anything that can support it. it would not be illegal. Arguably. realism may also allow for a certain degree of cultural divergence stemming from incommensurable cultural choices. and hence cannot be misidentified extensively. second. it must be possible to provide a definition of that concept in terms of necessary and sufficient conditions. Wiggins (1980: 90–101). There is no way of evaluating the behavior of Twin Earthians by any legal. are products of culture. that artistic genres. which renders the possibility of extensive misidentification a logical impossibility. On the other hand. and consequently the Putnamian account of indexicals. makes sense with reference to the latter but not the former. For many years I have used to ask my first year law students to define ‘chair’ in terms of a set of necessary and sufficient conditions for the applicability of the word. and hence not accountable on the basis of indexical predicates. But this is not wholly satisfactory. It might. its reference consists in what people take it to be. as opposed to moral. On the other hand. the moral realist could understandably claim that at least some kind of moral evaluations were applicable to the behavior of Twin Earthians despite their inability to recognize this. Moreover we can offer no idea of what would count as illegal conduct on the part of a Twin Earthian. We have already seen that realism with respect to moral statements is compatible with a view admitting of a certain amount of incommensurability among competing moral choices. for instance. In my opinion. In the next chapter I shall argue. realism about the meaning of ‘art’ seems to be no less implausible than realism about the meaning of ‘law’. Twin Earthians have no concept of morality or of moral evaluation of behavior. standards. be morally wrong for a Twin Earthian to torture his fellow Twin Earthian just for the fun of it. for instance. and they invariably failed. It is difficult to see how the reference of concepts which are purely cultural products could ever be misidentified by the entire population of that culture. Surely this is not because ‘chair’ is an indexical predicate. In fact.Real Law? 77 is a matter of human creation. This suggests a pertinent distinction between concepts which are the products of a culture. It is not clear that a realist with respect to the moral domain. Perhaps realism is applicable to the realm of aesthetics. Realism. Twin Earthians have no form of legal system whatsoever. From the vantage point of the distinction under consideration here.

78 Semantics. incomprehensible. and Natural Law Be this as it may. or anything to be an acceptable view. Realism. The fact that law is a cultural product par excellence renders a realist position. I do want to suggest. . that realism about morality is an understandable position only in so far as it is also maintained that morality is not altogether a product of culture (though perhaps partially sensitive to cultural divergence). I do not wish to assert realism about morality. and hence a Putnamian account about the meaning of ‘law’. aesthetics. however.

as such. Patently then. are partly. then one could speak about the interpretation of law only in those cases where the alleged law was. that is. (1985: 148) Thus the problem for Dworkin here is very simple: it would be pointless to insist on the thoroughly interpretative nature of law and legal reasoning if interpretation was nothing else but the attempt to retrieve the author’s. on the idea that law is interpretative throughout. namely.6 Constructive Identification and Razian Authority A LEGAL SYSTEM. If the interpretation of the law is too closely tied to an author’s intent model of interpretation. I shall try to argue. Otherwise it becomes simply one version of the positivist thesis that propositions of law describe decisions taken by people or institutions in the past. Dworkin’s recent interpretative turn is basically an attempt to re-establish this thesis on novel grounds. . that is. the communication model of interpretation and the coherence thesis are directly opposed. comprises not only source-based law but also those norms which can be shown to be consistent in principle with the bulk of source-based law. I will refer to this basic idea as the ‘coherence thesis’. Thus. determined on the basis of evaluative considerations. This worry is expressed in the following passage: The idea of interpretation cannot serve as a general account of the nature or truth value of propositions of law. however. Dworkin must deny that law is interpreted on the basis of the communication-intention model. but necessarily. The whole point of the interpretative theory Dworkin proposes is to show how conclusions about what the law is. In any other case. that intentions do play a crucial role in the identification of legal norms as such and. It is a crucially important aspect of Dworkin’s theory that a norm can be a legal norm even when it has never been created. Thus. Dworkin argued repeatedly. in fact. one would have to admit to the law’s invention or creation. It is not the purpose of this chapter to argue for the endorsement of the communication model of interpretation in law. or in fact previously contemplated. however. Dworkin has realized that an interpretative account of law might turn out to be inimical to the coherence thesis. the expression of someone’s intention. From the outset. unless it is cut loose from these associations with speaker’s meaning or intention. the legislature’s. if interpretation is explicable only on grounds of the communication-intention model. intentions.

etc. In other words. We have already seen in detail (Chapter 3) how the interpretative nature of both practice and theory yield their value dependence. it is definitely not the case that whatever is ‘the best’ is law (or art). according to Dworkin. the kind of value dependence which might serve to support the coherence thesis is a different matter altogether. as Dworkin admits. one must maintain that evaluative considerations are sufficient to determine (at least sometimes) whether something is a legal norm or a work of art. Here. However. important as this insight may be. One is the thesis that the interpretation of works of art. or some purpose it is meant to enhance. or whatever. is made possible and intelligible only against the background of a conceptual scheme constituted by. Patently. CONSTRUCTIVE IDENTIFICATION Legal practice. moral considerations can. According . A theoretical account of such a practice is basically a matter of achieving a kind of reflective equilibrium between the practice as we find it (roughly!) and its best possible justification (Dworkin 1986: 90). the thesis is irreconcilable with the idea that interpretation amounts to a retrieval of the author’s intentions. it cuts no ice with the dispute between Dworkin and his positivist opponents. evaluative judgments. But. The participants in these practices presume that the practice has a value. like art. is partly value dependent. 1. The possibility of a constructive identification of the law is diametrically opposed to two distinct versions of the communication model. legal norms. In the previous chapters I have tried to show that. This is not the case. provide sufficient grounds for identifying a given norm as a legal one. Dworkin’s position is. first. as opposed to the content. not one. of that which is interpreted. inter alia. because fit itself. not of its particular interpretations. however. but mainly because once the threshold of fit is passed. is an interpretative enterprise. One immediate objection might be raised here. as we have seen. that this formulation of the constructive identification thesis ignores the dimension of fit. that considerations of what is the best can sometimes determine what law is. rather. and the requirements of the practice are taken to be sensitive to these supposed values. what must be demonstrated is the value dependence of the identification of law (or art) as such. In other words. And this is the very essence of the idea of constructive identification. a point. for the very same reasons. according to Dworkin. namely. I shall henceforth refer to this thesis as the constructive identification thesis. The argument focuses on the distinct roles that intentions play in determining the identification. that they do so in a way which is incompatible with Dworkin’s coherence thesis. Yet there are two aspects of the value dependence of interpretation which ought to be kept separate here. it is also irreconcilable with the idea that something can be identified as a legal norm (or a work of art etc) only if it is presumed to have been created as such.80 Constructive Identification and Razian Authority moreover.

1 Now perhaps it is sometimes possible to see something as being created as a result of an intentional action in this weaker sense. A particular text’s identification as a novel. ‘Is A the same f as B?’ where f stands for the pertinent sortal concept (the same what?) (Wiggins 1980: 15). Mostly.Constructive Identification 81 to the latter option. Yet its identification as a text—under a covering concept of a given kind. Second. and hence that the coherence thesis should be rejected. since it is only the latter with which we are concerned here. art is just an example. that it is not the nature of art that interests me here so much. In saying that something has been created as such-and-such. however. for instance. there is a distinction to be drawn between questions of identity and questions of identification. which often relies on the analogy between the interpretative nature of these two enterprises. But two clarifications are required before we proceed. not the nature of perception. neither sameness nor continuity are considered. on the basis of the assumption that it has been created as such. identity concerns spatio-temporal continuity: ‘Is A (= the man standing in the corner) the same person as B (= John. the author’s intentions are not invoked for purposes of determining what. however. The relation between action and intention. Cf Strawson (1979). However. though not in all cases. namely. I should make it clear from the outset. as the kind of considerations capable of supporting or undermining the possibility of constructive identification. in law: ‘Is the legal system A (= in Zimbabwe) the same as B (= (formerly) in Rhodesia)?’ On the other hand. it is typically assumed that the agent had actually formed an intention with respect to what he has produced. a type of texts—relies on the intention to create a text of this kind. so to speak. To justify this move I can only appeal to Dworkin’s own work. but seeing something. what its content is. action performed with the intention of such and such. These are two separate versions of intentionalism. however. The main part of this chapter will argue that certain presuppositions about intentions play a crucial role in the identification of law. Hacker (1988). as an f.)2 1 2 See eg Anscombe (1956). a text means. or singling it out. One could subscribe to the latter without endorsing the former. my classmate from high school)?’ Or. it will be convenient to begin with a discussion of the possibility of applying the thesis of constructive identification to the realm of art. The typical form of an identity question would be. . questions of identification are typically of the form: ‘Is A an f ?’ In this case. is not always so strong. Generally. and more important. does not entail that its content ought to be determined by considerations about what its author had in mind. most of the time people act intentionally without forming any particular intention with respect to the act performed. I shall rely on the stronger sense of intention. our subject is a type of question. for instance. (It is being neither claimed nor denied that we constantly perceive things as such-and-such. Identity is basically a matter of sameness. that is. Davidson (1980: introd).

to begin with. but this does not entail that the identification of works of art. Wiggins (1980) seems to hold such a view. The intentionalist identification thesis explored below does not amount to. as such. This view seems also to have been presumed by Wollheim in Art and its Objects (1980). or even marvelous sunsets on bright summer evenings. unless one can specify the criteria for the identity of f. Thus. for instance. but it is not clear in Wollheim (1978). along the lines of the constructive model. musical timbres etc). Second. and for two reasons. without attempting to pursue the further task of providing a full account of its criteria of identification (a task which. 3 If I understand him correctly. In some of these cases. in many cases. or landscapes. See also Williams (1973: 15–16).3 The concession that people are often able to identify things. in a figurative form of speech. For instance. would be rather futile anyway). under covering concepts for which it is very unlikely that they could specify criteria of identity (think of modes of behavior. or art of that kind. We do not identify trees. were it not claimed by some philosophers that the latter depends upon the former. There is another reason why the distinction between identity and identification is worth mentioning here. as works of art (except of course. it is plausible to hold that the answer may depend on certain evaluative considerations about the values we ascribe to art. my claim is that the artist’s intention to create an object as a work of art (or as. we could not be accused of taking an unwarranted position in such a dispute. Many works of art are tokens of a type. In short. that in this latter case. I will argue in a moment against the plausibility of constructive identification in art. 1980).82 Constructive Identification and Razian Authority This distinction would be rather trivial and hardly worth mention. sometimes leads such philosophers to far-reaching conclusions. 4 This view is elaborated and powerfully criticized by Strawson (1976).4 Fortunately we can avoid such philosophical complexities. 2. or when attributing the object’s creation to a supernatural entity). in some cases. a specification of the criteria of identification for anything at all. for something to be a work of art it must be an artifact. It is sometimes maintained that one cannot specify the criteria for identifying an X as an f. the identifiables are not real entities. Yet I readily admit that. and it is sometimes of interest to ask whether two tokens are actually tokens of the same type or not (see Wollheim 1978. a novel) constitutes an essential element of our conception of what it is for something to be identified as a work of art. nor is it meant to be. CONSTRUCTIVE IDENTIFICATION AND THE OBJECTS OF ART I shall now try to point out certain considerations which support the implausibility of constructive identification in art. First. is possibly constructive. Recall. identity in art can be value dependent. nothing in the following discussion will depend on either admitting or denying any possible conceptual connections between identity and identification. . One can discuss certain conceptual constraints on the identification of things under a certain kind of covering concept.

That is. that is. ‘This was not meant to be a work of art. whatever their precise nature is taken to be. features which contain no reference to any particular intention to create a work of art. are works of art. purposes.6 Let us call such features. One could hardly be described as voting for such-and-such without forming the relevant intention. and the like. we can identify something as a work of art even if it has no aesthetic features whatsoever. Suppose someone who is absolutely unfamiliar with the practice of voting is persuaded to perform the acts considered as a vote for something without even knowing what he is doing. consider the practice of voting.Constructive Identification and the Objects of Art 83 art has to be created. deviations which are parasitic on what it standardly means to perform a speech-act of a certain kind. Now the crucial point here is this: if you maintain the possibility of constructive identification in art. it has to be created by the kind of agents capable of forming intentions. it is difficult to imagine why aesthetic features could not apply to other artifacts or. In short. any attempt to base the criteria for art’s identification on aesthetic features alone is bound to be very problematic. Yet we can easily imagine deviations from this.7 It is true that these revolutionary genres often create new standards of aesthetic appraisal. new tastes as it were. the ‘aesthetic’ features of the object. for example. But again. Such a person might be said to have voted without the requisite intention. how can we discriminate between the concept of an aesthetic artifact and the concept of a work of art? To begin with. but it is’? It seems to. Or. the possibility of such an unusual case 5 6 7 I actually take it to be particularly instructive that there are no exceptions to this. we understand what has been said. (I am not assuming that this notion of ‘aesthetics’ captures the ordinary use of this word. it seems unhelpful to employ aesthetic functions. with instances of insincere speech-acts. The fact that in normal circumstances we presume a speech-act to be sincere (cf Searle 1969: 60) does not entail that we cannot make sense of deviations from this condition.5 But of course. to natural objects which are not artifacts at all. the intention to vote for such and such. The examples I have in mind are early Dada. as is sometimes suggested. you must assume that works of art can be identified as such on the basis of certain features they happen to possess. in fact. Consider the ideology of certain twentieth-century genres which explicitly deny any such aesthetic purposes or merits. (For similar reasons. in a nutshell.) More importantly. not all created objects. creativity. does it not make sense to say. See Lynton (1980: chs 4 and 10). Such as. We often identify them as works of art long before we know whether such a development is feasible. (Remember that we have excluded those aesthetic features which contain an implicit reference to intentions. and conceptual art. . is this: unless we take intentions into account. to take a similar example. artifacts.) And yet. often because it is simply bad or unsuccessful. But it would be a serious distortion to describe their identification as art as wholly dependent on their success in implementing such new standards of aesthetic appraisal.) So the problem. namely. But compare this. for example. we only single out certain kinds of artifact as works of art. sometimes because it was meant to be so. or perhaps ingenuity etc.

One could justifiably claim that it resembled a work of art in various respects. however. sect 4. that if the relevant culture in which the object had been created did not have any concept of art whatsoever. it was too remote from ours to be translated to ‘art’ in our language). In other words. see Chapter 7. does not render the former irrelevant or useless. once discovered by European artists. one need not deny that in exceptional or unusual circumstances. or that it could have been one had it been created as such. we seem to have identified as works of art numerous things which might not have been created as such. Criteria are. Nothing in this contention would amount to an objection to the intentionalist identification thesis advocated here. In the present context. then it is groundless to say that the object is a work of art. does not prove the contrary. the contention that the warrior-mask is a work of art would be question begging. that identifying a warrior mask as a work of art becomes a relevant counter-example. either it is presumed that the purposes in play in its creation are close enough to those we consider artistic. similar inspiring impact can be attributed to beautiful Tahitian women as well. African art. But this fact. but not a logically necessary condition. have had an enormous impact on various modern genres. Suppose one wanted to claim that African warrior-masks were works of art. Oceanic art. Still this seems to have little bearing on what it standardly means to identify something as a work of art. however. and perhaps even things as close to our culture as medieval icons. Admittedly. none of this assumes that the concept of art is stable across time. To be sure. I do want to claim. as it were. by their nature. The fact that these beautiful artifacts. It would require an explanation of what justifies the mask’s classification as a work of art on the basis of its appearance alone. consider ancient cave paintings. the intention to create a work of art is a criterion for its identification as such. It is only when we admit (as I believe it would be right to do) that the pertinent African culture had no concept of art whatsoever (or that if it did. and so forth. art could also be created unintentionally. provided it was presumed that the pertinent African culture had a concept of art sufficiently similar to ours. particularly on primitivism.9 In classifying an artifact. To mention a few examples.8 An objection based on counter-examples may seem in place at this point: from an historical perspective. But in this case. then. 8 For a more detailed account of the defeasibility of criteria. defeasible. 9 . Similarly. and hence classifying it as a work of art would amount to a distortion. only one particular claim would amount to a real counter-example to the thesis suggested here.84 Constructive Identification and Razian Authority is parasitic on our standard understanding of what it means to vote. that criteria are defeasible in a way that necessary conditions are not. one can always imagine circumstances in which a given criterion does not hold. transcultural comparisons pose difficult problems in the context of almost any discussion about the concept of art and its limits. surely the prevalent concept of art in Mediaeval Europe was very different from the concept of art that evolved during the Renaissance and later in the 18th century. but not that it in fact was one. or the purposes in play are not taken to be artistic. in which case it can be said to have been created as a work of art.

a newly discovered culture in which the concept A stands for the following practice: shiny green stones. and for discrimination between bad art and non-art. is basically a matter of agreement. an ordinary urinal. As he puts it in the case of law. in which the criteria would be quite different. of which there is a scarcity. Of course. that the criteria are at least partly contingent and culture dependent in a rather strong sense. of the consensus which happens to prevail at the pre-interpretative stage. . A shopping list is not bad poetry. that we will probably be unable to specify universal criteria for the identification of works of art. exhibited at a New York gallery in 1917. is a famous example. and so on. (One could push the similarity further: the culture includes distinguished stone collectors. The concept of A is simply too remote from our concept of art to be translated into ‘art’ in our language. as in other interpretative enterprises. a kind of shopping list can be intended by its author as poetry. Imagine. and might then be said to be a piece of poetry. Shiny green stones are not works of art. though perhaps a poor one. there seems to be very little here which would warrant the conclusion that A amounts to a peculiar concept of art. . A experts. But only up to a point. we would say. . One can easily envisage a very different conventional setting. private and public collections of shiny green stones. however. it must be intended as art in the first place. for example. the necessary preinterpretive agreement is in that way contingent and local. (1986: 91. Often. This much might well be conceded by Dworkin. it is not poetry at all. identification in art. even if we could see the point in all this. are collected by some of the people in this culture and exhibited in a way very similar to that in which portraits are exhibited in galleries. but is really a very bad one’. simply by presenting them as such. it–– cannot flourish as an interpretive enterprise in any community unless there is enough initial agreement about what practices are legal practices. to employ this strategy of turning such banal objects into works of art. he would argue. In general.Constructive Identification and the Objects of Art 85 Now consider the opposite case: can we say ‘This was meant to be a work of art. Marcel Duchamp’s Fountain. We all enter the history of an interpretive practice at a particular point. in different cultures different things are identified as works of art. it can also mean something like this: ‘It was meant to be a work of art. Undoubtedly. the thesis that intentions play a conceptual role in the identification of works of art is required for the following two purposes: it allows for discrimination between works of art and other aesthetic artifacts. This means. but in fact it is not’? Of course it makes perfect sense to say this simply because people can fail in actually realizing the intention which they have had.) Now. as it were. of our shared convictions about the 10 Indeed it was characteristic of Dada. Is this only a matter of agreement. or involves a peculiar artistic genre.10 To sum up so far. to be able to say that something is bad art. at some point. But. . for example. my emphasis) There is a fairly obvious sense in which it is true that the identification of art is— within certain limits— a matter of social consensus.

Art criticism would be utterly incomplete if critics ignored the background on which works of art are created and understood. not a contingent and local agreement. The fact that the interpretation of the former typically involves a certain vision of the latter is not evidence to the contrary. Now. it is the concept of art which rules out the possibility of constructive identification of works of art. Dworkin rightly distinguishes between conventions. properly so called. In short. simply because genres are not the kind of things which can be works of art (and vice versa. . Yet we can make perfect sense of a denial of this view. Rules of grammar. another possible reply should be mentioned. within our own language. our own conceptual scheme. in general. however. Before we turn to the issue of constructive identification in law. and with no particular difficulties. distinguish very clearly between works of art and the genres to which they are taken to belong. the pertinent genres to which given works are taken to belong. It might be claimed that we got the question wrong from the outset. But in fact this semblance is often false. it is a widely shared conviction that it is wrong to torture people just for fun. are neither true nor false (and neither right nor wrong). and shared convictions (1986: 136). The overall pattern may not have been in anyone’s mind. It should be relatively easy to envisage the negation of anything that is purely a matter of shared convictions. at any particular point. genres can be identified constructively: one need not presume that genres must be created as such. All this should be conceded. Instead of asking ‘How do we identify something as a work of art?’ we should have concentrated on the interpretative nature of art criticism. however. But the interpretative perspective should not obscure the fact that we can normally. This does not seem to be the case. It is possible to account for the emergence of genres in terms of something like an ‘invisible-hand explanation’. Furthermore. with the contention that shiny green stones are not works of art.86 Constructive Identification and Razian Authority practices we identify as art? Perhaps it is. that is. but neither more nor less so than language is. It is typical of shared convictions that they can turn out to be wrong or false. in particular. and asked about the identification of whatever is subject to interpretation in it. One never confuses genres with works of art. one cannot interpret a work of art without having formed a vision of the genre to which the work is taken to belong. The belief in the existence of witches was false. so to speak. of course). Surely. so the argument would continue. genres seem to manifest an overall pattern or design which could only have evolved through the successful attempts of a group of artists to realize the pattern or design. and the practice of burning them an iniquity. objects of art are not interpreted in isolation. people cannot agree or disagree on something that makes no sense. For instance. In other words.

Since law claims to possess legitimate authority. can be derived from Joseph Raz’s analysis of the concept of authority and its bearing on the concept of law. This entails that the law either claims that it has legitimate authority over its subjects. both features of authority-capacity undermine the possibility of constructive identification. is as follows: for something to be able to claim the possession of legitimate authority. or both. although it can fail to possess it. RAZIAN AUTHORITY AND CONSTRUCTIVE IDENTIFICATION IN LAW I have tried to argue. I have expressed my own arguments to the same effect in Marmor (2001: ch 3). (This feature of law. nevertheless. Raz’s argument that the authoritative nature of law undermines not only the coherence thesis but also inclusive legal positivism cannot be explored here. and only that which can be authoritative can either possess or fail to possess legitimate authority. A similar line of reasoning will be suggested here with respect to law. The first reflects the idea that only an agent capable of communication with others can have authority over them. a directive can be authoritatively binding only if it is. and those which would be laid down by a gang of robbers. it must be possible to identify the directive as being issued by the alleged authority without relying on reasons or considerations on which the directive purports to adjudicate. 11 The following discussion is based on ‘Authority. As we have seen. Law and Morality’ (Raz: 1985). someone’s view of how its subjects ought to behave.) Raz’s main argument then. may be quite different. and a brief presentation of its essentials should suffice here. involves only the presumption that we discriminate between the kind of claims laid down by law. The example of art is instructive. In particular. Admittedly. it must be of the kind of thing which is capable of possessing it. These reasons. This rules out the possibility of constructive identification of works of art. the object has to have been created as such. Only certain kinds of things can be considered as possessing authority. But law. is held to possess it. Raz identifies two such features: First.Razian Authority and Constructive Identification in Law 87 3. or is at least presented as. Second. I shall argue. that the identification of something as a work of art must typically rest on. at least in one limited respect: it has shown that the value dependence of the interpretation of works of art does not entail the possibility of constructive identification. There are particular conceptual reasons due to which constructive identification in law is rendered impossible. (1985: 303) Patently. It is to these that I now turn. the presumption that it was intended to be a work of art. nor will it attempt to capture all the possible aspects and implications of this analysis. Raz’s doctrine of authority is well known. The latter is undermined by a conceptual constraint. that it claims to be a legitimate authority.11 First. we assume that all (efficacious) legal systems have de facto authority. inter alia. as the law essentially does. of course. the discussion will do little justice to the complexity of Raz’s analysis of authority. . But it is similar only in a very abstract way. thus far. it must have the requisite features of what might be called authority-capacity.

Again. Seeing how the second feature of authority-capacity is derived requires a closer look at Raz’s analysis of practical authority. Thus. to maintain the constructive identification thesis one must either show what is wrong with Raz’s analysis of authority. is not only a matter of a regularity of behavior but one which is guided by certain norms which are taken to be binding by the pertinent community. The Preemption Thesis: The fact that an authority requires performance of an action is a reason for its performance which is not to be added to all other relevant reasons when assessing what to do. it must be distinguishable from those reasons which would have applied to the disputants directly. Raz’s main insight is that ‘the only proper way to acknowledge the arbitrator’s authority is to take it to be a reason for action which replaces the reasons on the basis of which he was meant to decide’ (1985: 298). See Raz (1985: 306). it will be useful to see how Raz summarizes his concept of authority. than if he tries to follow the reasons which apply to him directly. (Raz also calls the latter reasons dependent reasons. the identification of law depends. however.) Thus. partly. on considerations which the law is there to settle. his decision must itself be taken as a reason for action on the part of the disputants. on reasons which apply to the subjects of those directives . that is. the requisite features of authority-capacity fit the standard sources of law. to sum them up.88 Constructive Identification and Razian Authority nothing can be more straightforwardly opposed to the constructive identification thesis than the idea that law must be a product of an act of communication. The Normal Justification Thesis: The normal and primary way to establish that a person should be acknowledged to have authority over another person involves showing that the alleged subject is likely better to comply with reasons which apply to him . . and present their right balance.) Since the arbitrator is there to settle a dispute. Thus. The outcome is the second feature of authority-capacity. but custom as well. as lawyers know very well. namely. . had there been no arbitration in the first place. custom reflects the judgment of the bulk of a given community about how people ought to behave in the circumstances. 12 Notably. but should replace some of them. among other factors.12 First. on considerations about what the law ought to be. or show why legal norms need not be authoritative directives. Hence. . it must be possible for the disputants to identify his directive independently of those reasons. . According to the latter. in the following three theses (1985: 299): The Dependence Thesis: All authoritative directives should be based. The arbitrator’s decision is meant to reflect certain reasons. . (Raz calls these ‘dependent reasons’. Such reasons I shall call dependent reasons. this runs counter to the constructive identification thesis. not only legislation and judicial decisions. If the authority’s directives are meant to replace some of the reasons on the basis of which he was meant to decide. if he accepts the directives of the authority as authoritatively binding and tries to follow them. The latter. He takes the case of arbitration to represent a paradigmatic example of authority.

Some may tend to resist the claim that justifying one’s compliance with an authority involves holding that the authority knows better what ought to be done. the authority would have to claim that the alleged subjects have a reason to benefit X. must nevertheless appeal to the normal justification thesis. (Raz 19866: 56). The alleged authority of parents over their young children. Yet one would be inclined to deny that this holds in other cases. Of course. Finally. as it were. Raz emphasizes the need to satisfy ‘the condition of autonomy’. On the contrary. so to speak. at least indirectly. even those who might wish to claim that the justification of political authorities can only be derived from certain doctrines about the special tasks they are meant to perform. This is typically the case when the authoritative directives are meant to solve a collective action problem. but this is beside the point. However. that 13 I do not intend to claim that the solutions of all co-ordination problems require authoritative resolutions. say. it must be shown that there are no reasons against complying with the authority which override the reasons for complying with it (ibid). which is not always a matter of ‘knowing what is best’. In any case. suppose it is conceded that an authority might act on reasons aimed to benefit. but not a sufficient. In general. Furthermore. X. or fail to act on such reasons. a reason which applies to them.Razian Authority and Constructive Identification in Law 89 The dependence thesis is unlikely to be disputed. For a given authority to be legitimate. Legitimacy in issuing authoritative directives may be due to the special circumstances of the given situation. what is appealed to is the normal justification thesis. condition for the legitimacy of authorities (Raz 19866: 56). . rather than to any personal merits or expertise. is typically justified by the assumption that parents are more likely to know what is best for their children. it should be emphasized that the normal justification thesis provides a necessary. The normal justification thesis is also less controversial than might meet the eye. Suppose it is held that the main task of political authorities is to maintain the peace and to monopolize the use of force in society. the justification of authority would be incomplete and the question begged. for instance. further conditions must be satisfied. Thus again. most that we encounter are resolved without the help of authorities. nothing that strong is entailed by the normal justification thesis. In particular. authorities can deceive. What has to be shown is that the authority is somehow better situated to decide what its subjects ought to do. when X is not an alleged subject of the authority. and on the relative merit of this objective as compared to other. Even in this case. or in prisoner’s dilemma situations etc. This might be conceded in certain cases. like coordination problems. it is difficult to see how someone can claim legitimate authority unless he claims to decide (at least partly) on reasons which apply to the alleged subjects.13 Furthermore. in claiming legitimacy. particularly in that of political authorities. potentially competing values. In particular. in the absence of an explanation as to why public peace (or anything else) could not be maintained just as well were people to fail to comply with the authority’s directives. (These are dependent reasons.) The justification of political authority would then depend on its degree of success in maintaining peace.

. For a critical review of Raz’s account of exclusionary reasons see eg Moore (1989b). namely. other reasons. Dworkin would argue that Raz’s account. This seems to be the view advocated by Dworkin (1986: 429) in his reply to Raz’s analysis: [Raz] is right that any successful interpretation of our legal practice must recognize and justify the common assumption that law can compete with morality and wisdom and. . however. Assessing what to do. Suppose the pre-emption thesis is denied. the alleged subjects would have to be able to identify authoritative directives independently of. In other words. that which the law is there to settle? To conclude: the argument quoted above hits the wrong mark. but only meant to be added to the balance of reasons the subjects must assess. the subject has to exclude reliance on the dependent reasons. and the authority’s directives taken to result only in additions to the overall balance of reasons for action. other reasons for action.90 Constructive Identification and Razian Authority ‘the matter (over which someone is said to have authority) is not one which it is more important that people should decide for themselves than that they should decide correctly’ (Raz 1989: 1180). It is quite sufficient to admit (as Dworkin seems to in this passage) that they create distinct reasons which can override other prudential or moral reasons for action. But why must law be blind authority rather than authoritative in the more relaxed way other conceptions assume? Suppose this view is correct. as an authoritative directive. It has to be identified as a directive issued by an authority. If determining what the law is involves considerations about what the law is there to settle. and the reasons it yields as reasons to be added to. is a decidedly different one. however. the pre-emption thesis wrong. As Raz himself clarifies (1985: 305). the requisite features of authority-capacity as identified by Raz may be defended without subscribing to his view that an authority’s directives create reasons for action which exclude the consideration of (or always override) the reasons which would otherwise apply directly to the alleged subjects. The concept of exclusionary reasons was presented in Raz (1975: 35–48). authorities’ directives are held to yield reasons for action which are not meant to replace any of those on whose basis the authority was to decide.14 Fortunately. ie those who have reasons to comply with the authority’s directives in the first place. . The pre-emption thesis is the one most likely to prove controversial. even if it does not necessarily override. . Raz thinks law cannot be authoritative unless those who accept it never use their own convictions to decide what it requires. and as distinct from. for the purposes of our discussion it is unnecessary to defend this thesis. In any case. must 14 The pre-emption thesis entails that an authority’s directives yield a kind of exclusionary reason for its alleged subjects. irrespective of the details. and weighed against. override these other virtues in their final decision about what they should do. how can it compete with. Even in this case. an authority’s directive would have to be identified as such. even in this partial way. The main argument against the Razian analysis. repudiating the pre-emption thesis does not save the constructive identification thesis. the pertinent features of authority-capacity do not necessarily depend on the pre-emption thesis (though they are entailed by it). that is. for those who accept law’s authority.

just like Dworkin’s. a more accurate picture of the proportions should be of assistance: how often do judges claim to follow legal norms while in fact relying on extra-legal considerations? In view of the vast number of ‘easy’ cases settled un-problematically in the humdrum routine of adjudication (especially in the lower courts). is a rather flexible notion. on Dworkin’s own account. It is presumably clear to anyone familiar with the politics of law. both laymen and law students get a rather distorted picture in this respect. where in fact there is no law to follow since the pertinent norm does not result from any authoritative directive. Law students. strives to interpret the legal practice as we find it. it is difficult to say how one would go about trying to answer this question. it would have been a problem if it turned out that judges invariably believed that they apply the law even when. many of them get settled before a judicial decision on the law is needed. And yes. This kind of pretence is far from seeming nonsensical or mysterious. the force of this objection is somewhat more limited than might seem to be the case. So the question is not ‘Does it fit?’ but rather. Norms and principles are often considered legally binding despite the fact that no one in any authoritative capacity has issued them. . it admits of degrees and it is sensitive to various evaluative considerations.15 (Paradoxically. Fit. ‘Which account fits better?’ Furthermore. Raz’s analysis makes allowance for the possibility that a norm is considered to be a legal norm because it is presented as an expression of an authority’s view about how its subjects ought to behave. which occurs whenever judges claim to follow the law. the question now facing us is not whether the pretence story makes any sense at all. as far as Raz’s analysis is a conceptual one. But this is precisely the gist of the ‘pretence story’. typically read about the more problematic 15 It may be worth keeping in mind that most legal disputes do not even get to be litigated in courts. Notably. It is. a question of quantity. a more precise idea may be formed of what people regard as the law of their land. namely. it fails on its own terms: judges and lawyers do not use the term ‘law’ as this analysis would have it. without this actually being the case. rather. that often enough. according to Raz’s analysis. The former typically assume that law settles more than it actually does. It is true that Raz’s account. But this only brings us back to the pretence story: according to the Razian analysis of law we must maintain that adjudication often involves a kind of pretence. they cannot be doing that because there is no law to apply. let me mention a few possible considerations which might mitigate the mystery of the alleged discrepancy between theory and practice. Admittedly. on the other hand. or if they do.Razian Authority and Constructive Identification in Law 91 have gone wrong somewhere since it does not fit the practice of adjudication. it should be remembered. First. Instead. the suggestion that Raz’s analysis fails on its own terms is potentially misleading. Furthermore. that at least sometimes judges have a very good reason to claim that they are following the law when they are in fact inventing it. In other words. judges do not actually believe what they say. as it were: what level of pretence (and confusion) can be allowed without the result being an absurd picture of adjudication? Admittedly.

the examples—when taken at face value—are not conclusive. People are not ignorant of the enormous political power vested in their higher courts’ judges. the court is bound to be under enormous political pressure. Hard cases. than one might gather from the picture as depicted by Dworkin. and perhaps even the judges themselves. in a democratic country where the (appointed) Supreme Court has the power to overturn democratic legislation. This is manifest in the great concern about the judges’ political records during the process of their appointment. and the fact that the judiciary is usually not democratically elected to make law. even in fundamental issues at the front of American politics. they explicitly admit to a gap in the law.) Furthermore. this tension between the extent of the quasi-legislative power judges actually have. Finally. the apparent discrepancy goes either way. somewhat paradoxically. Predictably. (More on this in Chapter 9. as one looks at the politics behind the practice of adjudication. would like to admit. is prevalent in all spheres of law. In short. but not of least importance. the cloud of mystery seems to dissipate. which of course is not surprising. But of course. It has more political power than the public. rather than as an interpretation of the existing law.17 Thus.92 Constructive Identification and Razian Authority questions submitted to the courts of appeal. the more reason judges have to fear the possible overturning of their decision (that is. are typical examples where a kind of pretence in adjudication makes perfect sense. particularly those involving controversial instances of judicial review. First. (Again. . and to the fact that their decision (if followed as a precedent) will amount to the creation of new law. one should not distort the picture by ignoring the actual politics.)16 Thus. A somewhat similar objection to the Razian analysis of law’s authoritative nature has been raised recently by Moore. consider the possibility of overturning a judicial decision by an act of legislation: its acceptance is likely to be more readily achieved when the judicial decision is presented as a novelty in the first place. a legal system based on a written constitution is bound to be concerned with special problems. the more reason they have to present it as if it were an interpretation of the existing law. 17 A pertinent piece of folk psychology: people are happier to find others wrong than to admit their own mistakes. one which creates new law) by legislation. it should be kept in mind that many hard cases can be found where judges do not pretend at all to apply or interpret the existing law. Although it does not dwell on the 16 This only serves to show that people are more aware of the judges’ power and practice to create new law. especially in constitutional cases. Dworkin’s most convincing examples concern constitutional cases from the American Supreme Court. and are hence prone to the impression that most legal cases are hard ones. besides the constitutional one. In fact. these will emerge from the tensions between the relative importance of the constitutional provisions and their condensed and rather laconic formulation. for two main reasons. the need for pretence does not always have to be so straightforwardly political.) Second. To mention just one example.

it also maintains that the Razian analysis yields an unacceptably simplistic view about what judges do when they interpret the law: The problem of Raz’s exclusionary reason account of a statute’s authority is that it excludes just the materials a judge needs to make a fully reason based interpretation of any statute. as it is in Moore’s earlier writings. Two prevalent sources of confusion should. When judges interpret the law. As he puts it. The first part of Moore’s objection may be understood in both a weak and a strong sense. When an authoritative directive is ambiguous or otherwise unclear. As far as this view depends on the assumption that all understanding of language and communication involves interpretation. As we have seen elsewhere. Moore is right in presuming that Raz’s analysis would be rendered implausible and rather vacuous if it were the case that law could never be applied straightforwardly. they often have to rely on considerations about that which the law is there to settle. be mentioned. His contention is that authoritative directives can never be applied without relying on the dependent reasons. Raz is not committed to the view that one is confined to an attempt to retrieve the authority’s intentions in order to determine the content of an authoritative directive.Razian Authority and Constructive Identification in Law 93 pretence problem. the objection that Moore is putting forth is much stronger than this. and then applied. however. one which should be obvious by now. But we have already seen that the role of intentions in the identification of things under a covering concept has no direct bearing on the way a text should be interpreted. But law. (Moore 1989: 891. It is arguable that Raz’s pre-emption thesis puts too strong a constraint on interpretation of the law. like any other form of communication. as it were. In short. yet— within certain limits—they can still be said to be following the law. not inventing it. respectively. it involves a fallacy.18 it ignores the fact that an understanding of language is required to make interpretation possible in the first place. It repudiates the constructive identification thesis on the grounds that a directive cannot be identified as a legal directive. ‘plain meanings cannot guide judicial interpretations of statutes by themselves’ (1989: 891). my emphasis) The objection is not made explicit here. not the standard mode of understanding language. reference to the dependent reasons might be required in order to establish the content of the authority’s directive more precisely. the details of which cannot be explored by the present discussion. unless it is presumed to have been intended as such. On the contrary. . can simply be understood. Raz’s analysis dwells on the role of intentions in the identification of law. Interpretation is the exceptional. Raz’s analysis can be employed to elucidate some of the conditions under which it would be reasonable to allude 18 Chapter 2 above. both will be taken up again in the next two chapters. Be this as it may. The second part of the objection involves another fallacy. For plain meaning and legislative intention are inadequate materials for the application of any statute to any case.

Moore errs in assuming that the authoritative account of law renders adjudication implausible. as well as those conditions under which a deference to legislative intent would not make any sense.94 Constructive Identification and Razian Authority to the authority’s intentions when assessing how to read its directives. To conclude. These possibilities will be explored in Chapter 8. . It is not a stance that can be plausibly attributed to Raz. as it would require constant reliance on legislative intentions.

7 No Easy Cases? L EGAL POSITIVISM IS committed to the thesis that a distinction exists between (so-called) ‘easy cases’. Interpretation is typically meant to designate a (partly) creative activity. Taken together with the previous point. To a greater or lesser extent. there being. the distinction between the law as it is and the law as it ought to be entails a parallel distinction between the activities of simply understanding the law and just applying it. but for our present purposes. where the issue is not determined by the existing legal standards. one could say that interpretation adds something new. Basically. and applied straightforwardly. it entails that legal positivism cannot accept the view that law is always subject to interpretation. it has to do with determining the meaning of that which is in some relevant respect unclear or indeterminate. and others. Put somewhat loosely. committed to the distinction between easy and hard cases. previously unrecognized. no easy cases as legal positivism would have it. where the law can be simply understood. I shall then go on to defend the distinction in question against the various arguments offered against it. is a result of some interpretation or other. Dworkin. and in what sense this is so. that is) identify the law and apply it without reference to considerations about what the law ought to be in the circumstances. I will begin by explaining why legal positivism is. these complexities can be ignored. indeed. and ‘hard cases’. This also suggests a particular view about the role of interpretation in adjudication. Fish. . shared by Fuller. Moore. to that which is being interpreted. There is a widespread objection to this thesis. and modifying or creating it. In other words. the objection consists in the claim that this is in fact an illusory distinction. It just cannot be the case that every conclusion about what the law is. this separation thesis necessarily involves the assumption that judges can (at least in some standard sense. This chapter sets out to disprove the above argument. 1 This formulation is notoriously too crude and conceals various and rather distinct positions. in all the relevant respects. A SCARECROW CALLED FORMALISM One of the main tenets of legal positivism is its insistence on the conceptual separation between law as it is and law as it ought to be.1 As stated in the previous chapter. 1.

There must be a core of settled meaning. in (the rather unfortunate) jurisprudential jargon. Since the meaning of a concept-word consists in (inter alia) its use. by the term ‘easy’ case. Consider this. that the view presented here is very schematic. Simple as it sounds. the application of the rule must be determined according to various non-linguistic considerations. I hope to demonstrate that Hart’s insight here is well entrenched in a highly sophisticated conception of meaning and language. emphasis mine) This short passage epitomizes Hart’s thinking on our present subject. by the distinction between the law as it is and the law as it ought to be. In these cases. roller skates. however. The fact that the distinction between easy and hard cases is entailed. on the meanings of the concept-words used in these formulations. which he placed at the basis of judicial reasoning. as we say. in the process of modifying and creating the law. This chapter sets out to defend the view encapsulated in this passage. in two ways. But. primarily. . This is what Hart calls the core of meaning. and this is what is meant. Second. the application of the rule is obvious and unproblematic. Plainly this forbids an automobile. I shall try to respond to the various criticisms put forward against it. since most of the concept-words in our language are actually vague or open textured. their application to the facts will always involve some borderline cases. there must always be standard instances in which the application of the concept-word is unproblematic. however. then the general words we use—like ‘vehicle’ in the case I consider—must have some standard instance in which no doubts are felt about its application. but there will be. adjudication is of course much more complex a practice than Hart’s simple example might be understood to suggest.96 No Easy Cases? judges participate. The argument offered by the line of criticism presently under discussion is that legal positivism should be rejected precisely because the distinction between easy and hard cases is indefensible. and this is the controversial point. is whether the distinction between easy and hard cases has any conceptual basis which is independent of the legal positivist doctrine. consisting in linguistic indeterminacy of the word’s applicability. These are what Hart calls the penumbra. (1958: 63. The gist of Hart’s thesis may be summed up as follows: the formulation of legal rules in a natural language makes their meanings depend. toy automobiles? What about aeroplanes? Are these. but what about bicycles. passage: A legal rule forbids you to take a vehicle into the public park. through their interpretative activities. . to be called ‘vehicles’ for the purposes of the rule or not? If we are to communicate with each other at all . when the facts do fall under the core of the pertinent concept-words of the rule in question. [and] behavior be regulated by rules. that of Wittgenstein. it has been gravely misunderstood. however. The following are only a few . However. or rather required. The most prominent attempt to propound such a foundation is HLA Hart’s distinction between the core and penumbra of concept-words. It is important to bear in mind. by now very famous. as well. is of course of little help in the present context. First. namely. First. there must be a law there to interpret. such as the presumed purpose of the rule or any other relevant consideration which might bear on the case. a penumbra of debatable cases in which words are neither obviously applicable nor obviously ruled out. What we should ask then.

or at least premature at this stage. since he believes that all cases are actually determined by legal standards.3 More significantly. a rule determining the amount of income tax for a certain level of earnings must be supplemented by the rules defining ‘income’. or in Hart’s particular version of it) is sometimes associated with a philosophical scarecrow called judicial formalism (see Moore 1981: 2 Eg think of the difference between carrying out an order to continue an arithmetical series. If any distinction were to be drawn between more or less easy applications of rules. Secondly. that is. First. Third. one cannot overemphasize the warning that the terms ‘easy’ and ‘hard’ cases are potentially misleading. however. means that the relevant legal norm can simply be understood. examining Hart’s thesis in detail. Notwithstanding these complexities. First. and attempting a more complicated one. Second. and applied to the particular case without the mediation of an interpretation of the norm. one can hardly deny that the application of rules is at least the core of judicial reasoning. It still remains to be seen whether complexities of various kinds cast any doubts on this basic model. it would be misguided to pronounce Hart’s thesis necessarily inadequate since adjudication is not merely a matter of applying rules. we just understand what the law says. tax law. in instances requiring the extraction of rules from precedents. including those I would call ‘hard’ cases. . their formulation would typically be much more difficult to determine. for example. as it is suggested by Hart. and not to the distinction between easy and hard cases. Before embarking on our main project. and many others I have not mentioned. 3 In the first edition I have also referred to an ‘easy case’ as one in which the case is ‘wholly determined by legal standards’. or not.5.2 An ‘easy’ case. it would pertain to the complexity of the operations required by the rule. Hershovitz (2002: 631) rightly complained that this formulation is one which even Dworkin would not find objectionable. both of which would be ‘easy’ cases. without an explication of what understanding. as I understand the term here. but this should not prevent anyone from taking the basic model seriously. to the case at hand. As Raz once pointed out. and applying a rule consist in. The distinction has nothing at all to do with the amount of intellectual effort required in order to decide a legal case. ‘tax’ etc). to dismiss Hart’s distinction between easy and hard cases as over simplistic. several somewhat crude misconstruals should be set aside. following. might be much more difficult than deciding many hard cases (Raz 1977: 182). most of the legal rules judges are required to rely upon are already directly or indirectly ‘loaded’ with previous judicial interpretations.A Scarecrow Called Formalism 97 examples: first. The distinction is meant to illuminate one important aspect of judicial reasoning which is. say n + 2. and know that it applies. In particular. No reasonable account of the latter could be provided. it should be realized that Hart is not offering a comprehensive theory of adjudication based on the distinction between easy and hard cases. the distinction between easy and hard cases (whether in legal positivism in general. I think that Hershovitz is right that this formulation is ambiguous. despite its apparent simplicity. 13 + n2  0. it would be a mistake. by no means the only one. in the sense being used here. the individuation of legal rules often depends upon other legal rules or fragments of them (for instance. deciding an easy case in.

logic and analyticity pertain only to the former. but it is precisely this classification to which his distinction between core and penumbra pertains. Given this construal. though. Hart’s contention that ‘plainly this forbids an automobile’ is understood to be a statement made true by its very meaning. or that the ostension expresses an analytical statement. is a matter of logical inference expressible in terms of analytical truths. or expressions. ‘logic is silent on how to classify particulars’ (1958: 67). while the positivist doctrine that there are easy cases is taken to be some type of endorsement of formalism. saying. But in fact the picture here is utterly confused. The latter is taken to suggest that judicial reasoning. not to the latter kind of relation. would seem easily attributable to Hart. The truth is that formalism (in this sense) is so obviously false as to require an explanation of how could it be associated with Hart’s doctrine in the first place. we must keep separate what might be called ‘rule-rule’ and ‘rule-world’. that is. namely. the view that in easy cases the legal conclusion is logically deduced from certain premises. 1967: 100–6). that the law of universal instantiation ((X)Fx infer Fa) ultimately mediates between the rule and its application. It is easily discernible that whatever it is that connects a rule to its application cannot consist of logic or analyticity. that is. The fact that in both cases the criteria for correctness are semantic should not obscure this crucial difference. 4 This should not be confused with a different thesis. thus appealing to a rule about how a word is used in English. formalism is then easily undermined and the entire move considered a serious critique of legal positivism. The concepts of logical inference and analyticity apply only to interrelations between rules or expressions. As Hart put it.98 No Easy Cases? 155–63). . hence an analytical truth. For a rejection of this idea see Baker and Hacker (1985: 92–93). but only that one should concentrate on the serious problems. and formalism is not one of them. rule formulations and statements expressing the classification of the pertinent particulars. In other words.’ When asked to justify this assertion. but the semantic relation between them. formalism is a scarecrow. A legal rule forbids the entrance of vehicles into the public park.4 The move is even more perplexing when we recall that it was Hart himself who repeatedly exposed such a view as a fallacy (1958: 67. the application of rules to given facts. To pinpoint what seems to lie at the source of this confusion. not to their application to the world. neither Hart nor any other legal positivist must subscribe to the view that the application of legal rules is a matter of logical inference. one can only appeal to the meaning of ‘red’.) In short. one would say that this is what ‘red’ means. consider Hart’s example once again. Surely. it makes no sense to say that we have a logical inference here. relations. Needless to say. Suppose someone is pointing at a red object in front of him. This is not to say that Hart’s distinction between easy and hard cases is unproblematic. (This is unlike the statement ‘Bachelor = unmarried man’ which does not concern the application of rules. ‘This is red.

dozes off on the bench for a minute or two––‘has he violated the law?’ Fuller asks. Hart’s first alleged assumption. that the interpretation of a legal rule is purely a matter of determining the concept-words it deploys. accordingly. is a violation of the ‘no vehicle in the park’ rule. Fuller. The second would hold that the interpretation of concept-words in legal rules is (or ought to be) determined by the ordinary use of these terms in natural language. such an attempt to mount the truck. and that it is only in the light of this purposive interpretation that one can judge whether the rule’s application to the facts of a given case is to be relatively easy or difficult. as a memorial. Fuller’s main criticism then.5 5 I must admit that I find this particular example almost silly. Second. the correct legal answer is ‘yes’. forms the target of Fuller’s most vigorous attack: The most obvious defect of his theory lies in its assumption that problems of interpretation typically turn on the meaning of individual words. ‘Does this truck. is that the meaning of concept-words is insensitive to the particular legal context in which these words are meant to function. But again. Perhaps a better example Fuller gives concerns the rule which forbids one from sleeping on benches in the train station. attempts to add another level of criticism in showing that the ideal of fidelity to law is not jeopardized if one rejects Hart’s position on easy cases. Surely. is aimed against these three assumptions. Fuller asks us to consider whether the rule excluding vehicles from the park would apply to a group of local patriots who want to mount on a pedestal in the park a truck used in World War II.The Hart—Fuller Debate 99 2. that understanding a rule is always a matter of determining its purpose. since the purpose of a rule can only be determined in the light of considerations as to what the rule is there to settle. so suppose that a respectable business man waiting for his train to arrive. His point here is actually twofold: first. (1958: 662–63) By way of demonstrating. one deserving a close examination. fall within the core or the penumbra?’ he then asks (1958: 663). I submit this is because we can see clearly enough what the rule ‘is aiming at in general’ so that we know there is no need to worry about the difference between Fords and Cadillacs. Fuller (1958) understands Hart’s thesis to be based on three assumptions. If the rule excluding vehicles from parks seems easy to apply in some cases. he also attributes to Hart the view that unless these assumptions are maintained. any lawyer would tell them to get an authorized permission to do so. The first of these would construe the interpretation of a legal rule as a matter of interpreting the concept-words it deploys. If the veterans want to mount the memorial. which is as it should be. However. in perfect working order. respectable memorial or not. of which he accepts none. ‘we must surrender all hope of giving an effective meaning to the ideal of fidelity to law’ (Fuller 1958: 664). even this example does not quite establish Fuller’s point: dozing off for a few minutes on the bench is simply a borderline case of ‘sleeping’. The third alleged assumption of Hart’s. THE HART—FULLER DEBATE Lon Fuller’s objections to Hart’s distinction between easy and hard cases may still constitute the most elaborate criticism of this thesis. ‘it is in the light of this “ought” that we must decide what the rule “is”’ (1958: 666). Let us take a closer look at the details of Fuller’s account. . possibly taken to be entailed by the previous two points.

standard examples. that is. But even this point (which Fuller seems to ignore) should not be overstated. he would say that an ordinary automobile should be taken as a standard example of ‘vehicle’ if anything is. inter alia. remains constant across different rules. as it is said to ignore or underestimate the ‘speaker’s purpose and the structure of language’ (1958: 669). and I shall begin by considering the second. In all. The answer to this. and a rule concerning the insurance of vehicles. The question is whether or not in this case the judge properly can be said to have applied the rule. and this clearly depends on the soundness of the point raised by Fuller’s first objection (and perhaps the second as well). Fuller’s objection to Hart’s third alleged assumption is based on a misunderstanding. I think. We are thus left with Fuller’s first two objections. Fuller. that he has been greatly influenced by various philosophers of . But the real question is whether or not Hart is committed to maintain the contrary. should be assigned the same meaning in the rule forbidding vehicles in the park. the question of whether Hart’s thesis is based on a particular conception of meaning. and I will discuss it in the sequel. In any case. The reader is more or less left in the lurch. There is no reason to assume that the word ‘vehicle’. and hence decide that even an ordinary automobile was not a ‘vehicle’ for the purposes of the rule at hand. might vary from case to case. it is quite clear that he would not hold this true with respect to the question of whether or not bicycles are also ‘vehicles’ for the purposes of different rules. (This point will be explained in greater detail below. is quite clearly ‘no’. as opposed to their penumbra. to what extent. Instead. to ordinary automobiles. Hart can only be taken to be committed to the view that the core of concept-words.) Furthermore. is one which quite obviously ought to be dismissed outright. irrespective of the particular context in which the rule functions. this is meant to imply that Hart’s concept of interpretation is based on an inadequate theory of meaning. Thus. in which even the core. nor does he elaborate on the grounds for its inadequacy. though. there is no need to deny that in some unusual circumstances a judge might face the possibility that the application of a rule to a given case in keeping with the core of the pertinent concept-word would lead to unacceptable results. Hart was very much aware of the fact that numerous concepts form family-resemblance concepts. for instance. if so. we are left with a vague disavowal of ‘common usage’ as the basis for the analysis of meaning. Recall that what we are faced with is the question of whether Hart’s distinction between core and penumbra commits him to any particular theory of meaning. The idea that concept-words used in the formulation of legal rules ought to be interpreted so as to assign them the same meaning in each and every occurrence. It is a biographical fact. so that any rule concerning ‘vehicles’ must be taken to apply. and. Conversely. partly because it is not fully stated. based on Hart’s own account (cf 1983: introduction).100 No Easy Cases? The basis for the criticism of Hart’s second alleged assumption is somewhat more obscure. is an interesting one in its own right. does not discuss the kind of theory of meaning Hart supposedly has in mind. and to what extent. To begin with.

it should not be assumed that Hart had any such theory in mind. as intrinsically incoherent. particularly Wittgenstein and Austin. he thought that an ideally scientific language would have to be one in which all expressions had a determinant sense. in order to be more accurate. as long as the idea of a theory of meaning is understood in its contemporary sense (for example. In general. On the contrary. then it is obviously true that most concept-words are vague. and it might be instructive to trace some of these ideas back to their source. (See Dummett 1981: 31–35. 316. But I would suggest that as someone who has learnt from (the later) Wittgenstein. which underlines his distinction between core and penumbra. but also was anxious to show that it made no sense whatsoever. Yet. Hart seems to share Wittgenstein’s view that an adequate account of meaning and language must not obscure the fact that the meaning of the words we use is completely overt and manifest in their use. that it would make sense to impose this requirement on any language.) The later Wittgenstein not only discarded this Fregeian version of the requirement for the determinacy of sense. If we understand vagueness to mean that in the practice of applying a word there are irresolvable disagreements in judgment over certain areas of its application. for every possible object. He is usually understood to have adopted Wittgenstein’s views here. Hacker 1986: ch 6. One of the main insights of Wittgenstein’s later work consists in pointing out the futility of such a project and the misconceptions it would involve (cf. vagueness should be distinguished from ‘open texture’ and family resemblance. It is only if one presumes that there is more to the meaning of an expression than what is perspicuous in the practices of using it and explaining its meaning. He defined the latter as follows: A word/ sentence has a determinate sense if and only if. as this presumption is utterly mistaken—as Wittgenstein strove to demonstrate throughout the Philosophical Investigations—Frege’s notion of the determinacy of sense emerges. there is a definite answer to the question of whether it is within the extension (or reference) of the word/sentence or not. and there is no evidence to suggest that Hart has ever dissented from this point. Wittgenstein’s impact is. be it natural or scientific (see Baker and Hacker 1980b: 225). Davidson’s). 48. as a quasi-scientific explanation of meaning. The requirement that sense be determinate has been propounded by Frege (and the early Wittgenstein) and preoccupied him for various theoretical reasons.The Hart—Fuller Debate 101 language. Hart would have avoided any attempt to construct what is usually called a theory of meaning for a natural language. namely. It is worth mentioning that Frege did not consider this requirement to be satisfied in our natural languages. McGinn 1984: 29). . he saw natural language as hopelessly contaminated by vagueness. In other words. See Baker and Hacker (1980a: 170). 440. However. in turn. On the contrary. the most evident in Hart’s treatment of the indeterminacy of sense. Does this mean that all the words in our language are vague? That of course depends upon what we mean by ‘vague’. The former term (coined by Waismann6) is 6 This is not to imply that Wittgenstein would subscribe to Waismann’s analysis of ‘open texture’. however.

and patience are all called ‘games’. this only shows the crucial importance of the idea that a great deal of agreement must exist as to what the standard examples of our concept-words are. of course. Suppose we cannot find any one feature due to which chess. must have standard examples which manifest agreement in judgments about its applicability. whereas in the case of family resemblance we would face multifarious standard instances which do not share any single defining feature. Instead. does this mean that any of them is not a standard example of ‘game’? Clearly not. under normal circumstances. On the contrary. Thus we can see that vagueness. This. the standard examples would share something which makes us use the same word for them all. however. it fulfils its purpose’ (PI sect 87). More importantly. What we do have to address.7 On the other hand. . In the absence of such agreement. is the question of whether or not the distinction between vagueness and family resemblance has any bearing upon Hart’s thesis. that is. football. the successful employment of family-resemblance concepts would have remained a total mystery. which Wittgenstein illustrates by the famous metaphor of ‘family resemblance’ (PI sect 67). and we often have no better explanation of a word’s 7 The difference might also have a bearing on analogical reasoning in adjudication. and it is only due to these similarities that distinct phenomena are called by the same concept-word. The idea that our language comprises family-resemblance concepts is perhaps one of Wittgenstein’s least controversial contributions to philosophy of language. but this point cannot be explored here. On the one hand the following difference is obvious: in the case of vagueness. Although no single defining feature shared by all the standard examples can be specified in the latter case. makes the distinction between core and penumbra more intricate in the latter case. and family resemblance all support the thesis that the concept-words we employ must have a core of meaning. this does not mean that they are not standard examples. and there is no need to expand on it here.102 No Easy Cases? meant to designate the possibility of vagueness. vagueness should also be distinguished from family resemblance. these phenomena are linked to each other by numerous and complex similarities. These standard examples are used in our everyday explanations of what words mean. ‘The sign-post is in order—if. standard examples which manifest agreement in judgments about the word’s applicability. open texture. Hart’s thesis remains basically untouched by this difference: any concept-word. That Wittgenstein would subscribe to the view that most of the words in our language are at least possibly vague is quite undisputable (cf PI sect 187) yet one would be on safe ground in presuming that he would not have attached great significance to this fact. Even terms which are not vague are potentially so. The latter designates a concept-word which is applied to various phenomena where ‘these phenomena have no one thing in common which makes us use the same word for all’ (PI sect 65). since one can always imagine circumstances where there would be irresolvable disagreements in judgments as to the word’s applicability. whether vague or one of family resemblance.

In other words. Under normal circumstances. the ability to specify the standard instances of its applicability can usually be taken to show that one has understood the meaning of a given expression.The Argument From Defeasibility 103 meaning than to point to its standard examples. I shall now concentrate on Fuller’s first thesis. what Fuller’s example would seem to demonstrate. in which case it can be used. at some point Fuller seems to be challenging the picture of meaning depicted here. while assuming that the second is relatively sound. with a particular emphasis on the purpose of the pertinent rule. Fuller’s objection comprises two main theses: first. Words can be more or less vague. Furthermore. he takes the word ‘improvement’ in the rule. that understanding a rule must always involve an understanding of its particular purposes. since understanding the meaning of an expression consists in the ability to use (and explain) it correctly. an assumption to which he objects forcefully. However. and if this is accomplished. is that the word ‘improvement’ must be put in a certain context so as to clarify the question of what is it an improvement of. and as a consequence of the fact that determining the purpose of a rule typically involves considerations about what the rule is there to settle. . for example. Fuller’s second thesis will in turn be rendered harmless. Disambiguation can only take place when an expression has several possible meanings. As an example. Notably. in which case it simply cannot be used. not when it is devoid of meaning. If a word is ‘almost as devoid of meaning as the symbol “X”’. I shall attempt to show that understanding a rule does not necessarily require a grasp of its purpose. Fuller’s discussion here is rather confused. ‘All improvements ought to be promptly reported’. 3. someone who does not recognize the applicability of a word to its standard examples manifests that he has not mastered its use. and hence it must also have standard examples. standard examples provide the criteria for correct understanding of expressions. THE ARGUMENT FROM DEFEASIBILITY Let us return to Fuller’s first and most important objection to Hart’s thesis. As we have seen. All this is taken to demonstrate something like the profound context dependence of meaning in general (1958: 667–68). He then goes on to demonstrate the disambiguation of ‘improvement’ in this sentence according to various assumptions about communication intentions and context. either a word has meaning. This is hardly surprising. but not without meaning at all. then it cannot be disambiguated. ‘it is in the light of this ought that we must decide what the rule is’ (1958: 666). he claims that Hart’s thesis is intelligible only against the assumption that the interpretation of a legal rule is a matter of determining the concept-words it employs. or it is devoid of meaning. Therefore. second. which he claims ‘is almost as devoid of meaning as the symbol “X”’ (1958: 665). And vice versa.

which is an obvious fallacy. it turns upon the question of whether there is a sense in which following or applying a rule does not consist in. . Immediate reflection should find the argument rather puzzling: it seems to hold that since any rule. Moore’s version of the argument confuses the question of what following a rule consists in (which interested Hart). the argument would be stated as follows: Any rule. an interpretation of the rule. Thus the application of a legal rule to any set of facts necessitates that the judge consider the purpose of the rule and ask herself whether the purposes at play would not in fact be defeated were the rule to be construed literally. depends on considerations about what understanding and following a rule consist in. if the argument from defeasibility is to make any sense at all. ‘is a normative one urging judges to disregard that meaning when it does not fit into their notion of the rule’s purpose’ (1981: 277). its conclusion must be revised. is taken to entail that it never makes sense to speak of a straightforward. But if the argument is understood in this way. can result in absurd consequences. Clearly. it must be accompanied by the assumption that judges can identify the law and apply it.104 No Easy Cases? One of the prominent arguments thought to support Fuller’s thesis is what might be called ‘the argument from defeasibility’: since it is the case that any legal rule—if construed literally—might. We have seen that for this thesis to be acceptable. Thus. is just how Moore understands (and subscribes to) Fuller’s argument. as Hart’s thesis maintains (see Moore 1981: 277–79). so the argument continues. The fact that the answer is often obvious. application of a rule. without reference to considerations about what the law ought to be in the circumstances. The argument should be taken to lead to a prescriptive conclusion as to what judges ought to do. in turn. with that of whether a rule should be applied in the circumstances. Even if we concede that judges should always ask themselves the latter question (which is far from clear). In particular. There are several strands of confusion here which ought to be unraveled. It should be kept in mind that our discussion commenced with the positivist doctrine about the separation between law as it is and law as it ought to be. or literal. a judge must always ask herself whether the case before her is one in which the results would be unacceptable if the rule were thus applied. or is not mediated by. since it is of crucial importance. whether this latter assumption is warranted or not. This. when it is. Fuller’s best argument. and then applied. can lead to absurd consequences. Understood in view of such a prescriptive conclusion. without reference to their alleged purposes or any other considerations about what the rule is there to settle. and accordingly judges should always ask themselves whether this danger is present and. he says. This. if construed literally. it cuts no ice in the dispute with Hart (or with any other legal positivist for that matter). under certain circumstances. decide according to standards which would avert the iniquity. does not mean that the question need not always be asked and answered. in fact. if construed literally. have utterly immoral or otherwise absurd results. Let me expound this point. it does not follow that rules cannot be understood. it follows that no rule can be construed literally.

however. rather than conceptual. Hart’s commitment to what follows from linguistic or conceptual analysis alone carries him only so far as to ground a conceptual distinction between easy and hard cases.The Argument From Defeasibility 105 The argument from defeasibility. Is it at all reasonable to suppose that one so clearly concerned with the conceptual separation between law as it is and law as it ought to be would ground his descriptive conception of law on considerations about ‘the ideal of fidelity to law’? Would that not be too obvious a fallacy?8 To sum up: the argument from defeasibility—construed as a moral objection to Hart’s thesis—does not seem to hit the right target. construed as Moore understands it. though. it should be noted that Hart himself does not propound any such argument explicitly. is clearly a moral one. to the best of my knowledge. from a moral point of view. offers another version of this argument. one is bewildered about the source of this diagnosis. In other words. that legal cases should be decided ‘on the basis of linguistic intuition alone’ (1981: 277). however. to the question of how judges ought to decide various cases. considerations. the answer to this normative question is bound to be affected by the moral contents of the particular law and legal system in question. To begin with. as a matter of moral duty. Perhaps Moore was misled here by the argument which Fuller attributes to Hart. have repeatedly claimed that it is sometimes the moral duty of a judge not to apply a certain legal rule to the particular case because it would be morally wrong to do so. Moore. such as Hart and Raz. of whether the rule should be applied (or not) in the circumstances. In short. that is. 8 At one point Fuller seems aware of these difficulties when he suggests the following. based upon semantic rather than moral considerations. let alone its accuracy. is something which legal positivists have no reason to deny. and there is no reason to assume that the answer is invariably yes. Perhaps Moore would reply that I have missed an important point in his argument. This. Yet this is just another confusion. Moore’s assumption that it does seems to be drawn from the view which he attributes to Hart. namely. either in the article (Hart 1958) to which Fuller’s review is addressed or. that his thesis is supported by considerations about the ‘ideal of fidelity to law’ (Fuller 1968: 664). Nor does such a position fit his general line of thought: Hart has never described fidelity to law as an ideal. namely. which is simply a mistake. however. that his objection to the Hartian thesis is based from the outset on moral. Legal positivists. in any other place. As nothing of the sort has been suggested by Hart. This. the question of whether judges should always follow the law and apply it. apply the rule in question. namely. . tackles a different question altogether. or at least by a fear that such an interpretation may be pushed too far’ (1958: 669). It does not extend beyond that. an easy case is not one in which ipso facto a judge should. would put him on safer ground only on the basis of the assumption that Hart’s thesis makes a moral difference in the first place. rather diagnostic observation: ‘I believe we can say that the dominant tone of positivism is set by a fear of a purposive interpretation of law and legal institutions. But this is a rather puzzling point. Needless to say.

that is. However. that Hart was not entitled to assume that the law is as indeterminate as his thesis about the penumbra would seem to entail. let us substitute our worn-out example of the ‘No vehicles in the park’ rule with a legal rule that comprises an indexical concept-word.106 No Easy Cases? A scrutiny of this argument. at best. If. it is the real nature of the entities designated by indexical words that determines their meaning. 4. that a physician is entitled to remove his organs for body-transplants). The point. at best.10 9 The example is Moore’s. it is always possible to discover that a certain instance formerly thought of as a standard example of ‘death’. on Hart’s account. to those concept-words whose meaning determines their reference. the appropriate application of this rule would depend on. of the argument under consideration here. the construal of the extension (or reference) of ‘death’. meaning does not determine reference. there is an important sense in which no such standard examples exist. that whatever might be conceived to be the relevant standard instances of indexical predicates. Thus. on Putnam’s analysis of indexical words such as natural-kind predicates. we now know that this is not necessarily the case. suffers from the following flaw: it is confined. or any other indexical word. Hence. such examples are defeasible in a sense that other. instead of charging Hart with the unwarranted assumption that there are no easy cases. in principle. whatever its real nature turns out to be (Moore 1985: 297). they intend to designate its reference ‘rigidly’. For example. and so is the gist. is more subtle. 10 Interestingly. See Moore (1985: 293–97). but vice versa. as it does not fall within the reference of the word after all. we presume the indexicality of ‘death’. nonindexical instances are not. This defeasibility consists in the fact that the standard examples employed to explicate the meaning of indexicals are. whereas several decades ago we might have thought that a person suffering from total cardiovascular and respiratory failure for thirty minutes to be indisputably dead. in fact constitutes a mistake. however. Nor would we say that the meaning of ‘death’ has changed since. to the contrary. some critics claim. To be sure. INDEXICAL PREDICATES AND EMPIRICAL DEFEASIBILITY Hart’s thesis.9 Now surely. as it is of ‘vehicles’. consider a rule attaching certain legal consequences to a person’s ‘death’ (for example. When people use an indexical predicate. and not—as I have argued in the previous section—criteria for its correct use. To the extent that the law . namely. the ‘externalist’ semantics Moore relies on here has been employed by other critics to reach the opposite conclusion. that there are some standard instances in which no doubts arise as to the word’s applicability. so the argument would run. which will distance us temporarily from Fuller. inter alia. Hence easy applications of this rule would be possible only if it is true of ‘death’. though perhaps not all the details. it might be argued. none (at least in this context) offer the absurd claim that it is impossible to be completely sure of a person’s death. only approximations of the real reference of the concept-word. of course. is offered by the next section. To capture the relevance of this objection. as we have seen in Chapter 5.

Upon reflection. 11 As Moore’s argument is not confined to natural-kind predicates. the kind of defeasibility claimed to be characteristic of indexical predicates does not undermine Hart’s thesis. very probable. or a counter-example. 2000). empirically refutable and defeasible. this assumption is not quite warranted. . notably moral concepts. 1996. Stravropoulos. On the view examined here. It must be scientific evidence. Generally. if at all. evidence which can only render the conclusion. and not about the meaning of ‘gold’. in principle. Still. however. As I explain below. it renders Moore’s view even more controversial and less plausible than my presentation here would indicate. Its most interesting feature is the fact that it is contrasted with the notion of criterion. our certainty about the extension of an indexical predicate is no less than our certainty on the most basic scientific theories and world-views. to use a Dummettian phrase. a truth of the matter about their meaning as well. Moreover. not a fact about the world. The now recognized fact that such theories. The fact that a piece of metal is held to be a piece of gold. On a Wittgensteinian account. (Brink. assuming the indexicality of ‘death’. as some commentators have thought. this is not true of indexical words. they are constitutive elements of the word’s meaning (though not. Since there is a truth of the matter about the real reference of these concepts. the term ‘empirical defeasibility’ would not capture the full scope of his thesis. Thus. at least in principle. Thus the fact that ordinary automobiles are standard examples of ‘vehicle’ is a fact about the meaning of ‘vehicle’. many other types of conceptword are indexicals as well. like (allegedly) ‘death’. in most legal contexts. but never certain. and cf Horowitz. As such. is allegedly a fact about the world. one might argue. but I very much doubt it that externalism constitutes a criticism. On Moore’s account. but not certain. the indexicality of a predicate entails the possibility of ‘verification-transcendent’ truths about its real reference. no employs indexical predicates. like ‘malice’ for example. The judge must unquestionably engage in reasoning which requires him to classify certain particulars. it must be supported by evidence. the defeasibility in question is empirical. and hence. 1988. and even legal terms of art. standard examples of a concept-word typically function as criteria for its correct use. that is. What both of these criticisms share is the assumption that Hart subscribes to ‘internalist’ semantics. I allowed myself to ignore this complexity since it does not affect my arguments here. Or. identical to it). to Wittgenstein’s semantics. Any piece of evidence which might support an item’s inclusion in (or exclusion from) the extension of a given indexical predicate. at best. Thus. can only render the conclusion more or less probable. Now consider the judicial application of a rule which contains an indexical predicate. Suppose we concede the argument so far. there is.Indexical Predicates and Empirical Defeasibility 107 Let us take a closer look at the kind of defeasibility described as characteristic of indexical words. Hart does seem to rely on Wittgenstein’s conception of meaning. any such classification would amount to an empirical statement (or presumption) about the world. to decide whether they fall within the extension of ‘death’. the type of evidence required cannot pertain to the rules or conventions of language. the reference of such concepts is what determines their meaning. about the real reference of ‘death’. that is. an easy reply to this argument seems to present itself immediately.11 it derives from the fact that no statement about the real reference of indexical concept-words is maintainable without doubt.

a change must also occur in its meaning. Conventionalism. indeed. as Moore has learnt from Putnam. while the other. In particular. reference. The level of certainty required in law is no different from the level of certainty required in a great number of other activities where we rely on scientific. But this. So Wittgenstein must be wrong. then. True. the concept of criteria is not one of the clearest in Wittgenstein’s writings. but one takes the notion of criterion to be analyzable in terms of necessary and sufficient conditions. for instance. this view of Wittgenstein’s conventionalism is far too simplistic.108 No Easy Cases? matter how strongly adhered to. Although he did speak about ‘defining criteria’. (Moore. to consider adjudication any different. it underestimates the alleged force of the argument from defeasibility. have a more ambitious plan in mind than merely casting doubts on the reliability of judicial classification of particulars. closely related conceptions of meaning. and he seems to have changed his mind about it during the years. in turn. Both rely on the idea that meanings are conventionally determined by certain criteria. at least with respect to indexical predicates (Moore 1985: 297–98). Although this answer is basically correct. There seems to be no reason. it must be noted that Wittgenstein did not identify criteria with meaning. Moore divides contemporary theories of semantics into two basic conceptions of meaning. maintains ‘some loose assemblage of the conditions [which] will be sufficient for the correct application of the word’ (Moore 1985: 292 n). but this seems to have little practical bearing upon the possibility of there being easy cases in law. both conventionalist accounts of meaning fail for the same reason. According to Moore. To begin with. are not terribly worried by the prospect of scientific revolutions or the defeasibility of the evidence presently taken to support the identification of gold. they both entail that whenever a change occurs in our view of the real nature of the reference of an indexical predicate. and hence in the criteria for its correct use. comprises two basic. Most people who buy and sell gold. and their elucidation suffices to render the argument from empirical defeasibility quite harmless. Admittedly. It rests upon a misconstrual of his analysis of the complex relations between the notions of meaning. . realism and conventionalism. rarely affects our humdrum activities despite the fact that we often rely on these theories. namely. and hence defeasible. their inability to account for the indexicality of predicates like ‘gold’ or ‘death’ etc. is unacceptable. however. and criteria. and particularly Moore. may turn out to be false. Moore is skeptical of the Wittgensteinian analysis of meaning as relied upon by Hart. he did not envisage a particular set of definitive criteria which would determine the correct use of a given expression in terms of necessary and sufficient conditions. Unfortunately. Some points are clear enough. however. not of judges’ ability to classify particulars. evidence. every classification of a particular under an indexical covering-concept might turn out to be false. notably Wittgenstein’s. Proponents of this argument.

‘evidential relationship presupposes the independent identification of the relata. Consider the following section: The fluctuation in grammar between criteria and symptoms makes it look as if there were nothing at all but symptoms. Thus. are multifarious: one can manifest understanding by performing an appropriate action. Secondly. on the other hand. defines. by explaining that which he has understood. Thus. As Hacker rightly observed. on a Wittgensteinian account one should typically expect a multiplicity of criteria for the correct application of a given concept. as opposed to criterion. Interestingly. Hence it should be clear that Wittgenstein did not conceive of the relation designated by ‘p is the criterion for q’ as one of entailment. something which can be learnt from experience.Indexical Predicates and Empirical Defeasibility 109 seems to concede as much. however. through the manner in which he or she responds to something. To capture the full significance of this point. the name of an animal) is a criterion for its use (see Hacker 1986: 308). under normal circumstances. for example. signify empirical evidence which is learnt from experience. The distinction is of crucial importance. It follows that the relation between meaning and a theory about reference is more complicated than Moore seems to have presumed. to revert to one of our examples. If a given phenomenon is considered a symptom of a concept’s applicability.) On the contrary. it is important to realize that all criteria are defeasible. whereas the fact that ‘gold’ is a kind of metal (and not. the fact that this evidential relation eventually turns out to be false has no bearing on the meaning of the concept. We say. one might pretend to be in pain. A criterion. Wittgenstein uses the concept of criterion with an emphasis on its contrast with what he called symptoms. The criteria for understanding. does not entail that a given person is in fact dead. that between criteria and evidence. a criterion for calling a person ‘dead’. another distinction should be mentioned here. for instance. This is so as all criteria for the correct applicability of a concept-word are circumstance dependent. The latter. and also how the situation is deviant from the usual ones’ (1967: sect 144). From the academic year 1933/4 onwards. for example. do typically involve appropriate variations in meaning. Similar changes in criteria. but also teaches that there is rain when we have certain . for instance. or intend to deceive etc. a certain chemical reaction might be a symptom of the identification of ‘gold’. Yet. The manifestation of pain-behavior. or by whatever other means. Just as pain-behavior does not entail that one is in fact in pain. there is no hope of enumerating all the variant circumstances which alter the criteria. Wittgenstein had anticipated the kind of objection raised by Moore. not only those which determine the use of indexical predicates. the fact that a half hour of cardiac-respiratory failure is. is—under normal circumstances—a criterion for the assertion that one is in pain. But of course. I can say so. for example: ‘Experience teaches that there is rain when the barometer falls. as Wittgenstein readily admitted. or partially defines that for which it is a criterion’ (ibid). Nor does this fact undermine the role of criteria in determining meaning: ‘if a circumstance makes the use doubtful.

cannot be settled so easily. this Wittgensteinian analysis is much more reasonable and accurate than the aspect of Putnam’s theory relied upon by Moore. thus stressing that the answer to this question often depends on the way scientists themselves view the relation between a phenomenon and that which it is a phenomenon of. the actual history of the pertinent scientific development must be consulted. (PI sect 354) The connection between the barometer and the occurrence of rain is surely an evidential. Second. for instance. particularly in science. one must look carefully into the ways in which people have understood and used the given concept. Thus. But here one fails to reflect that the fact that the false appearance is precisely one of rain is founded on definition. as a matter of linguistic convention. On the other hand.12 Scientists often define a concept without really deciding whether an item in their definition is a symptom or a criterion. The point of this observation is not to complain of the deplorable laxity of scientific terminology. the fact that we associate death with the absence of any vitality is a criterion for its use. If one day we discover that dead people are capable of reading philosophy. which is associated with this unfortunate state of affairs on the basis of experience. it would indeed be the case that the meaning of ‘rain’ has changed as well. what we mean by ‘rain’. and whatever else constitutes our perception of rain. do not constitute counter-examples to Wittgenstein’s analysis at all. the presence of a certain kind of bacteria in a person’s throat might either be a symptom of the occurrence of a certain disease.110 No Easy Cases? sensations of wet and cold. One of the most interesting points emphasized by Wittgenstein in this context is that criteria and symptoms fluctuate. and refs there. and hence the meaning. no doubt our concept. typically. that the most plausible examples of indexical predicates the theory of whose reference can change without causing any changes in meaning.’ In defense of this. Yet this fluctuation emphasizes how difficult it is decide whether changes in scientific theories yield consequent changes in meaning or not. a change in criteria does carry with it a respective change of meaning. one says that these sense impressions can deceive us. not because they cannot turn out to be false. from a scientific point of view the distinction is usually not too important. . To see whether meanings have changed or not. cardiacrespiratory failure is not a criterion for the correct use of ‘death’. but because they define. as they involve a revision of symptoms rather than criteria. Likewise. On Putnam’s 12 See Hacker (1986: 309). If. are—in normal circumstances—criteria for the correct applicability of the word ‘rain’. however. or a piece of evidence. a change occurs in those criteria. First. Hence. Two conclusions emerge so far. To my mind. but a symptom. the fact that it can turn out to be false has no bearing on the meaning of ‘rain’. of ‘death’ will require a dramatic revision. But our sensations of wet and cold. that according to Wittgenstein. or a criterion for the use of the concept-word signifying that disease. The matter. for some bizarre reason. symptomatic one.

Putnam’s view. I find this thesis unconvincing for two reasons: first. Would anyone want to insist that the meaning of ‘tiger’ remains the same? I suspect that apart from devout Putnamians (which I am not sure that Putnam himself still is) no one would make such a claim. a piece of evidence which renders the classification of certain particulars as ‘tigers’ more or less probable. contrary to the impression arising from Putnam (1975: 197. The fact that the meaning of ‘atom’ in our idiolects is different from the meaning of ‘atom’ in those of the Greeks does not entail that we are not referring. However. as Moore would have him. and hence perhaps more plausible. Feyerabendian conception. I have not seen anywhere that Putnam saddles Wittgenstein with a commitment to internalist semantics. as he explicitly made clear. Most scientific theories affect the symptoms of. say. 236). and accordingly the newer ones are no better than their predecessors. is the one which conceives of meaning exclusively in terms of a state of mind. seems exaggerated in the opposite sense as well. it is a criterion for the use of this word. rather than the criteria for. according to which every change in a theory about the reference of an indexical predicate entails a change in its meaning. the alternative is not necessarily the opposite. . not only a different reference. Suppose we discover. 13 See Moore (1981: 202ff. then the separate explanations are not explanations of the same thing. Being a kind of animal is not a symptom. for instance. The picture of meaning Putnam strove to undermine.Indexical Predicates and Empirical Defeasibility 111 account. instead. skepticism is inevitable. that we have discovered that there are no tigers. if the meaning of our theoretical terms varies with each successive explanation of their reference. Take the differences between our conception of the reference of ‘atom’ and. Putnam worries rightly that unless Feyerabend’s view can be repudiated. Yet Wittgenstein’s distinction between symptoms and criteria should alleviate this worry considerably. perhaps implanted here many centuries ago by aliens. roughly. Consider a less dramatic. example.13 no change in the acceptable theory of the reference of any indexical predicate yields a change in its meaning. those things formerly thought to be tigers have in fact emerged as something else (cf Putnam 1975: 243). that the animals we now call ‘tigers’ are in fact sophisticated machines composed of silicon chips. that we no longer refer to the same substance? And hence that we cannot make sense of the contention that we now have a better theory about ‘atoms’ than the Greeks did? Surely not. that of the Greek atomists. on a Wittgensteinian account. Are we forced to say. ‘tiger’ would surely have acquired a very different meaning. Let us also presume that some of the differences consist not only of variations in the accepted symptoms. if we continue to use the word ‘tiger’ to name these things. as a consequence of surprising discoveries about their reference. something which Wittgenstein strove to undermine himself. It should be noted that Putnam can hardly be said to have criticized Wittgenstein’s conception of meaning. 1985: 300). It seems quite extraordinary to insist that accumulation of knowledge about the world does not bring with it a change in the meaning of the words we use. Secondly. All too often the meaning of words does change. when construed in an unqualified manner. sometimes radically. We would say. the use of indexical predicates. but also of the criteria for the meaning of ‘atom’.

The idea that interpretation is always required in order to determine which acts are in accord with a rule (and which go against it). As with the circumstance dependence of criteria. would be refuted. Instead. There is no need to repeat this argument here. seems supported by the idea that rules as such are indeterminate.112 No Easy Cases? to the same substance. It has already been argued. Notably. Rough approximations are all one needs here. not only Hart’s distinction between easy and hard cases. . it still remains an open question whether one can be said to be following a rule. Basically. Furthermore. based on considerations about what understanding a legal rule consists in. it would amount to a serious objection to the Hartian thesis. 5. if we add to this the assumption that typically. if this view is correct. Construed as a moral objection to Hart’s thesis. without the rule being thus interpreted. a gap which can only be bridged by interpretation. Needless to say. but also the separation thesis distinguishing the law as it is from the law as it ought to be. the question is whether it makes sense to maintain that any application of a rule must be mediated by an interpretation of the rule in question. one which would refute it on its own terms. should not be used interchangeably. for that matter). I shall try to summarize those of his arguments which have a direct bearing on our present concerns. it is not completely clear whether Fuller meant them to be understood along the lines suggested by Moore. Thus. in Chapter 2. We are now in a position to conclude that not much is left of the argument from defeasibility. there seems to be a gap between a rule and its application. Fuller seems to maintain that understanding a rule always consists in (inter alia) a grasp of its purpose. More generally. Repudiating this idea (along with the various misconceptions involved in it) was one of Wittgenstein’s main concerns in his discussion of following rules in the Philosophical Investigations (sects 143–242). a careful examination of Fuller’s suggestion is of great importance. it might be thought that even if this is generally conceded. In other words. WITTGENSTEIN ON FOLLOWING A RULE The question to be addressed at this point is whether or not it makes sense to claim that one can understand a rule only in view of the purposes it is taken to advance. and interpreting it. Construed as a general objection to Wittgenstein’s conventionalism it turns out to be idle. it is irrelevant. and has the ability to explain how it is different. I would suggest that Fuller’s most interesting objection to the Hartian thesis is meant as a conceptual one. To return to Fuller’s arguments. determining the purpose of a rule involves interpretative hypothesis about what the rule is there to settle. that the idea of understanding an expression (or explaining its meaning). one normally understands the difference or deviation. However. a full account of this discussion of Wittgenstein’s would go far beyond the scope of this work (or of my competence.

like a game. If so. as Wittgenstein observed. Pears (1988: 425). but rather an ability (or an array of abilities) to use the expression in accordance with the rules of the language. none of these points would be cited as being part of the rules constituting the game. the fact that we are normally capable of telling whether a ball has fallen inside or outside the marked lines. It is possible that many of the arguments presented by Fuller’s book (1969) on the ‘inner morality of law’.15 14 Baker and Hacker (1985: ch 5). the rules constituting a language-game should be clearly distinguished from the background state of affairs in which there is a point in having such rules and against which they are intelligible. sect 2. this is a wide topic which exceeds the interests of this chapter. as he calls it. one of Wittgenstein’s most important observations about language is that the meaning of expressions in language is perspicuous throughout. are made intelligible only against the background of (inter alia) certain purposes which they can be taken to advance—that is. although we can envisage things being otherwise. All this is part of the background against which there is a point to having the game. play a crucial role in instructing learners how to engage in the pertinent activity. Knowing the meaning of an expression is not an inner state of mind. But in the present context. First. 15 . rather than a different. not the question of what makes it possible to follow the rules of this. play explanatory roles in making actions intelligible. And if things were quite different from what they actually are . ‘the more abnormal the case. . or rules that can be discovered only through scientific or quasi-scientific exploration (Hacker 1988: 162–65. the fact that the players normally desire to win a game. can be accounted for along the lines suggested here.Wittgenstein on Following a Rule 113 Wittgenstein’s concern with what following a rule consists in derives from his conception of meaning. and like all normative rules. . being normative. etc. the more doubtful it becomes what we are to say. Hence.14 Every rule-guided activity presupposes a particular background which is not part of the activity itself but makes it possible and relevant. it would have been quite innocuous as well. Let us begin with the clarification of two general points. McGinn 1984: 119). serve as standards of evaluation. Furthermore. as has already been mentioned. that is. is possible only against the background of the laws of gravitation. that it does not make sense to speak of ‘hidden rules’. game. The game of tennis. contrary to appearances. many of his theses are in fact reconcilable with legal positivism. this would make our normal language-games lose their point’ (PI sect 142). The moral to be drawn from this is that semantic rules. for instance. See also Chapter 2. But of course. the relation of the meaning of an expression to its use(s) is a particular instance of the relation of a rule to its application. they explicitly guide actions. Yet in normal circumstances. The distinction between easy and hard cases as maintained by legal positivism concerns the question of what following a rule consists in. Using language is a rule-governed activity. this would also suggest that. or legal rules in particular. in the sense of background outlined above—it would have been a sound observation. hence the rules in question are normative. Furthermore. must be perspicuous. The distinction is relevant here for the following reason: had Fuller’s thesis been confined to the contention that rules in general. etc.

as it were (and thus.) This should be clarified in some detail. See Baker and Hacker (1984b). just as to understand a proposition is to be able to specify its truth conditions. it seems. this is not what I had in mind’? The suggestion is perplexing: does it make sense to say that all the steps were in his mind before they had actually been taken? (PI sect 188) For a survey and exegesis of Wittgenstein’s arguments. 1. In other words. . is like a sign and its meaning 16 The following discussion will not dwell on Wittgenstein’s alleged ‘rule skepticism’ as it struck Kripke (1982). and undermines. it does not make sense to say that one has understood a rule if one cannot identify the actions which are in accord with it. he then writes ‘1. say from 1. ‘Well. The latter has been repeatedly—and cogently—criticized by numerous writers.) (See Baker and Hacker 1985: 91. can we say that the pupil’s misinterpretation of the rule consists in the fact that he had not captured the intention of the one who gave him the order? Would the latter say. McGinn (1984). see Baker and Hacker (1985: 81–227). He asks us to consider the following example: a pupil is ordered to continue an arithmetical series. can be misinterpreted. consider sect 198: But how can a rule show me what I have to do at this point? Whatever I do is. Interpretation is just another formulation of the rule. 1. according to the rule n + 2. however. in other words. none of this is meant to deny that for every rule there would be countless borderline cases. but rather: any interpretation still hangs in the air along with what it interprets. any rule. but which is exhibited in what we call ‘obeying a rule’ and ‘going against it’ in actual cases. 17 Wittgenstein here considers.114 No Easy Cases? The second point and perhaps the key to the whole discussion. 1. For instance. then no interpretation could do this either. is that Wittgenstein conceived of the relation between a rule and its application as a grammatical one. substituting one rule formulation for another.’ This is not what we ought to say. often actually changing the rule). one which is internal to language. A rule. First.000. the actions in accord with a rule seem to be under-determined by the rule’s formulation: whatever one does can be brought into accord with the rule on some interpretation of it. This is the crucial point: if a rule could not determine which actions were in accord with it. .004. a whole array of possibilities. Pears (1988).16 Wittgenstein begins his discussion of following a rule with the idea of the indeterminacy of rules. Both suggestions. in accord with the rule.000 on. . on some interpretation. that is. and cannot give it any support. (We are talking about the standard cases.’ Two main questions are exemplified here. What this shows is that there is a way of grasping a rule which is not an interpretation.008 . Interpretations by themselves do not determine meaning. as if each one contented us for a moment. And the same point in sect 201: It can be seen that there is a misunderstanding here from the mere fact that in the course of our argument we give one interpretation after another. manifest profound misunderstandings. Thus.002. To understand a rule is to be able to specify which actions are in accord with it (and which would go against it). Pears 1988: 468.17 Second. until we thought of yet another standing behind it. Hence it cannot bridge the gap between rule and action. and it is not clear what this misinterpretation consists in.

there is a normative connection between rules and actions. This partly depends on how one understands his famous private language argument. But that is only to give a causal connection. like those of all symbols. that is. one might surmise that any action can be made to be in accord with the rule. see also Pears 1988: 500). in practice. is not the point. that is. as Baker and Hacker (19846: 20) made clear. must be determined by the actions themselves. by the way the rules are used. for example. Something is a signpost only in so far as there exists a regular use of that sign for particular purposes. he has provided a kind of causal or psychological explanation of how.Wittgenstein on Following a Rule 115 cannot be determined by another sign. Hence also. . that Wittgenstein actually meant both meanings of ‘custom’ to be relevant here. not what this going-by-the-sign really consists in. then it can also be made out to conflict with it. but is exhibited by ‘obeying the rule’ or ‘going against it’. 19 It is possible. This of course. to tell how it has come about that we now go by the signpost. If the meaning of rules (and signs etc) is determined by their use. this conclusion is inaccurate: Wittgenstein’s emphasis here is on the multiplicity of the occasions of use. one is inclined to think that ‘custom’ is meant to indicate the necessity of a community of users. But of course.18 consisting in the existence of a custom of using the sign or rule thus and so. a custom. one learns to follow a rule. not on the multiplicity of users. But. See n 16. the meanings of rules. above. I have further indicated that a person goes by a signpost only in so far as there exists a regular use of signposts. On the contrary. As they put it. Which is to say that learning how to follow a rule is learning to master a technique (PI sect 199). Wittgenstein does not take a skeptical standpoint here: ‘if everything can be made out to accord with a rule. Yet Wittgenstein is careful to warn us against a potential misunderstanding: it might be thought that instead of explaining what following a rule consists in. Consider this subsequent part of sect 198: ‘Then can whatever I do be brought into accord with the rule?’—Let me ask this: what has the expression of the rule—say a signpost—got to do with my actions? What sort of connection is there here?—Well. a social practice.19 A further misunderstanding might arise from the idea that the meaning of rules is determined by their use: ‘Hence there is an inclination to say: every action 18 Contra Kripke. In other words. one still remains puzzled as to how rules can determine the actions in accord with them. if it is the actions which determine the meaning of the rule. ‘The contrast here is not between an aria and a chorus. This completes the previous point. and now I do so react to it. and not otherwise. And so there would be neither accord nor conflict here’ (PI sect 201)—which is obviously absurd—not a skeptical standpoint to be taken seriously. Wittgenstein’s contention that the use of rules consists in there being a custom is potentially misleading. which is not an interpretation of the rule. but between looking at a score and singing’ (ibid. and it is this regularity of use which provides the meaning of the sign. understanding a rule consists in the ability to specify what actions are in accord with the rule. however. perhaps this one: I have been trained to react to this sign in a particular way.

This would be a misunderstanding. if we concede Wittgenstein’s point that understanding a rule consists in the ability to specify which actions are in accord with the rule. It is vacuous if by ‘interpreting’ we simply mean ‘this is how he understood the rule’ and can thus also say that he has misunderstood it. we must also admit that every rule is bound to be interpreted. for instance. that every instance of following a rule is an interpretation of it. However. But we ought to restrict the term “interpretation” to the substitution of one expression of the rule for another’ (PI sect 201). The answer to this is that the quest for completeness is misguided here. our understanding of rules will always be deficient. but rather exhibits that one has understood the rule correctly. To interpret a symphony. so the argument continues. we are led to the conclusion that we can never have a complete grasp of a rule. all rules can be formulated in language. One could say. which would be irreconcilable with the normative aspect of rules and rule-following. One of Wittgenstein’s most important observations in discussing the concept of explanation is that the quest for completeness—if understood as a demand for the removal of every possible doubt—is incoherent: ‘an explanation serves to remove 20 To be sure. . Now. if ‘interpreting’ is taken to mean something which amounts to yet another formulation of the rule. Wittgenstein might be presented with counter-examples. but still wishes to insist that every action according to a rule involves interpretation. that although interpretation does not mediate between rules and actions. and in another wrong. The idea that all rules must be subject to interpretation might still be thought to be essential. Hence. if we want to allow for a complete understanding of rules. one must first have a pretty good idea of what the score means.116 No Easy Cases? according to the rule is an interpretation. there is nothing unique to legal rules here. still acting according to the rule is an interpretation of the rule. whether by performing it or not. the gap between a rule and its application cannot be bridged by another formulation of the rule. including the rules of language itself. however. one cannot say that the action is mediated by interpretation. But this would be misleading since in one sense it is vacuous. however. amount to an interpretation of it? On the face of it. Does not a performance of a symphony. Wittgenstein’s proposal of limiting the term ‘interpretation’ to the substitution of one expression of the rule for another is too restrictive. then obviously the suggestion above would be wrong: acting according to the rule does not constitute another formulation of it.20 are bound to employ general concept-words with various degrees of vagueness. as there will always be instances where one cannot tell whether or not the rule applies. since. since Wittgenstein need not deny that there are occasions in which actions manifest a certain interpretation of a rule. The idea here would run as follows: rules formulated in a natural language. however. Suppose one concedes Wittgenstein’s analysis so far. if we connect Wittgenstein’s discussion of vagueness with his own conception of what understanding a rule consists in. However. as we have seen. It would be wrong to suggest. such as legal rules.

It is only that we should jettison the association of completeness with necessary and sufficient conditions. And one has a complete grasp of a rule. and hence also. If the formulation of a particular rule is inadequate for purposes of determining a particular result in certain circumstances. but rather between one formulation of the rule and another. which would go against it. that is. then there is nothing more to explain or understand about its meaning. not every one that I can imagine’ (PI sect 87). if it fulfils its particular purpose. Thus. one is able to specify which acts are in accord with the rule. of course. On the other hand. which would go against it. As we have seen. To follow a rule. that is. be based on reasons. from the same source of confusion. the relation between a rule and its application is a grammatical one. it fulfils its purpose’ (PI sect 87). Thus. It should be emphasized that all this is not meant to imply that in all cases of disagreement on the applicability of a given rule (due to vagueness. for example). one needs to understand and act according to it. violates the distinction between following a rule and interpreting it. under normal circumstances. Hence. The assumption that there must be more to understand there derives. with the intention of doing so. internal to language. that is. the thesis that one . at least in some standard cases. Equally. one’s grasp of its sense is in some way incomplete. what is required is a new formulation of the rule—one which would remove the doubt—and this is what the term ‘interpretation’ properly designates. that is.Wittgenstein on Following a Rule 117 or to avert a misunderstanding—one. it does not make sense to say that one has understood a rule yet does not know which actions would constitute following it. At this point we can return to Fuller’s thesis. But interpretation here should not be confused with understanding the meaning of the rule. Understanding a rule consists in the ability to specify which actions are in accord with the rule. Wittgenstein would maintain that ‘anything goes’. if it removes the misunderstanding that otherwise would have existed. just as it is misguided to presume that unless one can specify necessary and sufficient conditions for the applicability of a concept-word. it is equally misguided to assume that the complete understanding of a rule must remove all possible doubts about its applicability. as it were. providable in terms of necessary and sufficient conditions (Baker and Hacker 19806: 29–45). This should not be taken to mean that the distinction between complete and incomplete understanding or explanation is out of place. and hence. Fuller’s assumption that one can understand a rule only in view of the purposes it is taken to advance. in both cases. It very well might be the case that interpretation is required to determine the applicability of a rule in certain circumstances. An explanation would be complete. that is. assumptions about the purposes a rule is meant to advance are interpretative assumptions which do not mediate between a rule and its application. and interpretation can. It follows from the presumption that a complete account of the meaning of an expression is a Merkmal-definition. ‘the signpost is in order—if. The same holds true of a complete understanding of rules. that would occur but for the explanation. since its inadequacies should be clear by now. if under normal circumstances.

this is the exception to the standard understanding of what a rule means. In such cases. Interpretation is required only when the formulation of the rule leaves doubts as to its application in a given set of circumstances. . But again. assumptions about the purposes the rule is meant to advance should probably take a prominent role in solving the particular difficulties encountered. which is an obvious absurdity. parasitic on our ability to follow rules without the mediation of interpretation. amounts to contending that the application of a rule always requires its translation into another rule.118 No Easy Cases? always needs to determine the purpose of the rule in order to be able to specify which actions are in accord with it.

by Waldron (1999: ch 6). It is the task of clarifying the issue which I intend to address first. Since I have already responded. of course. I shall attempt to elucidate the conditions under which it would be reasonable for judges to defer to the legislature’s intentions in statutory interpretation. to Waldron’s critic (see Marmor 2001: ch 5). Applying this distinction to the law. we can. Yet. Roughly speaking. In other words. I have argued for a distinction between the role intentions play in determining the content. in some detail. a few introductory remarks are in order. At the more abstract level. I have argued that the authoritative nature of law accounts for the conceptual role intentions play in identifying legal norms as such. which still leaves open the question of whether the legislature’s intentions have any particular role to play in the interpretation of statutes. It is this question which I shall try to answer here. The most immediate difficulty encountered stems from the plurality of views under consideration. or indeed can it play any such role? This is one of the age-old questions of common law jurisprudence. The following two sections will then concentrate on the attempt to clarify the intentionalist’s thesis irrespective of its validity. not surprisingly. I have decided to change very little in the content of this chapter and confined my revisions to matters of style and some clarifications which were needed. In fact there is hardly any position which has not been argued for by 1 A note on the revision: the first edition of this chapter has been subject to various critical essays. The fourth and last section is devoted to the question of justification. these will form the chapter’s first section. under certain circumstances. Yet each standpoint actually comprises a very wide range of positions.8 Legislative Intent and the Authority of Law 1 T HE ROLE OF intentions in interpretation has been discussed from different perspectives and in various contexts. WHAT IS THE ISSUE? Should legislative intent play a role in statutory interpretation. 1. identify two main camps: those who favor deference to legislative intent. Although the topic is familiar. and those who oppose such deference. . most notably. of that which is a possible object of interpretation. as opposed to the identification. some of the issues involved are muddled by a lack of clarity in the definitions of the pertinent questions. referred to below as intentionalists.

that in certain cases the presence of such a fact. I shall also be pointing out the kinds of obstacle such a thesis would have to overcome. Second. how strong of a reason is it? Should it replace all other. to those who claim that legislative intent is the only legitimate source for statutory interpretation. and to what extent? Needless to say. Second. to reiterate.120 Legislative Intent and the Authority of Law one scholar or another. that the law was enacted with a certain intention. even if there is one. or none? How should it be weighed against such other. The kind of a plausible doctrine I have in mind here would comprise the following general theses: first. or applies whenever a legislative intent bearing upon the issue at hand can be discovered. their answers are likely to be intermixed in various ways. at least in certain cases. at least not in any helpful sense. reasons for decision.) At the level of justification. binding upon judges only in the absence of other good reasons for decision. two further questions arise: one regarding the scope of the doctrine. At the descriptive level. thus providing an effective framework for the subsequent discussion. The second. it should not constitute a reason for judicial interpretations of statutes. First. namely. its alleged force. and the other. depending on the particular doctrine espoused. who claim that ‘there is no such thing as a legislative intent’. The first is the question of whether the doctrine’s applicability is confined to certain kinds of case. the question of the doctrine’s force. or is it a very strong one. Each of these tasks comprises various sub-questions. only some of them. respectively. are enacted with relatively specific intentions. is as follows: granted that legislative intent constitutes a reason for decision in a given case. (These two questions will be addressed in the next two sections. intentionalism must face the kind of skepticism which argues that—as a matter of fact—there is no such thing as legislative intent. in which cases. from outright skeptics. and that this is a matter of fact which is discernible through an ordinary fact-finding procedure. But in addition to that. and the kind of intentions which are potentially relevant to statutory interpretation. it would hold that laws. there is. intentionalism must answer those who claim that even if legislative intent were a discernible fact. the first and main question of why is it ever a good reason to defer to legislative intent. Instead. The characterization of a plausible version of intentionalism in terms of these two theses aims at clarifying that intentionalism faces a dual task which is both explanatory and justificatory. I shall not attempt a survey of all these positions. not easily overridden by other types of reason? Thus. reasons for the decision—is it a very weak reason. provides judges with a reason to decide the legal dispute in accordance with the relevant legislative intent. of course. the intentionalist must show that it is possible to identify both the ‘legislator’ whose intentions are meant to count. I will begin the discussion with a general and rough outline of the thesis I wish to examine here. potentially conflicting. although these are conceptually separate questions. we can say that the question of justification comprises three main issues: why should legislative intent be a reason for decision. . In outlining a position that favors deference to legislative intent. potentially conflicting. one which is at least initially plausible.

the question of whose intentions count as the intentions of the legislator might be determined by legal practice. ipso facto. Thus the debate over the desirability of intentionalism in law is bound to be affected by various evaluative considerations. proposing deference to legislative intent as a source of decision-making in such cases is. But they are not thus included because the judicial decision makes a moral difference. that is. Granted that judicial decisions of hard cases often make a moral difference. but by the fact that rules can often be simply understood. it should be noted that the very nature of the justificatory question is itself subject to controversy. to complicate matters a bit further. moral and political ones possibly included. I have argued there that the existence of easy cases is made possible not by the fact that the legislator’s intentions are clear and decisive. Yet intentionalism can be claimed to belong to the concept of law in a much stronger sense. pertains to the kind of reasons judges should rely upon when deciding hard cases. It may be construed as a doctrine which claims that deference to legislative intent is always a matter of law. Yet it does not follow that the considerations capable of supporting intentionalism are necessarily moral ones. We have already seen that considerations supporting interpretative strategies are bound to be sensitive to the purposes and values one finds embodied in the relevant enterprise. I hope it is evident from my arguments in the previous chapter that this is not a plausible view. for instance. In certain legal systems.What is the Issue? 121 Finally. as deference to legislative intent forms part of what it is to follow the law. This assumption about the role of intentionalism also clarifies why there are two possible ways in which it can be a matter of moral and political argument. This is an issue I would like to address before going on to examine the other questions in detail. Both proponents and foes of intentionalism sometimes conduct their arguments as if the issue is to be determined on the basis of considerations pertaining to the concept of law. as both are partly right and partly wrong. some of the questions mentioned above are determinable. like any other interpretative strategy. and then applied. and interpretation is required to determine the appropriate solution of the case. contend that the issue can be resolved satisfactorily. Intentionalism can be a matter which falls within the realm of law if. and to the extent that. such considerations are bound to be based on evaluative considerations of various kinds. Whether these are primarily moral and political is something that remains to be seen. and determined. when the issue is not settled by the existing legal standards. however. Others. in which case it is trivially a matter of law. only if it is first recognized as thoroughly dependent on moral and political arguments. by legal practice. Hence. without the mediation of interpretation. . denying this. morally significant. As they pertain to the reasons that judges should rely on when confronted with hard cases. it will be presumed here that intentionalism. Both positions are confusing.

Hence the question: Can we attribute an intention to a group of people. Even if the historical identity of the author is in doubt. It should be noted that rules or conventions have a twofold function here: both of establishing the practice and of allowing for the identification of the particular instances falling under it. would not find it difficult to answer this question. In other words. or rather hopes. the concept of representative intentions. trade unions. but a whole legislative body composed of numerous members. That is. as is sometimes suggested by lawyers. I refer to the problem of identifying the author. and that it is a person to whom one can attribute intentions. To give one closely related example: numerous speech-acts—like issuing a command. For instance. A legislator might hold certain intentions. such as commercial corporations. like most other objects of interpretation. where certain actions gain their social meaning. in particular. That is. Yet there is one general problem which is unique to law.122 Legislative Intent and the Authority of Law 2. cities etc. on the basis of what can be called. as it were. only on the basis of certain rules or conventions. as it were. On the other hand. or uttering the words ‘I do’ in the appropriate circumstances of a marriage ceremony etc––would not have the social effects they do outside the rule or 2 I am ignoring an additional complication here: even with respect to a single legislator. are typically created by a single ‘author’. but rather a set of established rules or conventions which determine these matters. Works of art. when these people act in their official capacity. often numbering several hundreds?2 Lawyers. as ‘the legislator’ is often not a single person. unofficially. we attribute intentions to corporate bodies. rules help us explain how actions and intentions can be attributed to a corporate body at all. unique to law. statutory interpretation in a modern legal system presents a special problem in this respect. of course. often debate a very similar point. it is characteristic of the concept of representative intentions that the rules which vindicate the attribution of intentions are constitutive of the practice. This does not involve a kind of fiction. by means of identifying certain individuals whose intentions would count as the intentions of the corporate body itself. The situation here is no unlike other. more familiar instances. to take one familiar example. WHOSE INTENTIONS? The argument over the role of authors’ intentions in interpretation is not. they normally know and take into account that they act on behalf of the corporate body. Can we say that in this case he has the intention that his intention not be taken into account by the courts? . Art critics. while also serving to identify the particular instances of such actions and intentions of the corporate body. it is usually the case that there is such an author. it is not always clear whether he has formed a certain intention in his official capacity or not. Hence also. and which art critics are usually spared. as they would point to the fact that we often do attribute such intentions in similar situations. We are vindicated in attributing intentions to the corporate body because rules or conventions determine that the intentions of certain individuals are considered— within certain established limits—as the intentions of the corporate body itself.

5 Perhaps this is due to the fact that such rules would have to determine a hierarchical structure within the legislative body.3 In a familiar sense. count as an act of legislation. 3 See Austin (1955).6 Some. legislative intent is a fiction due to conceptual considerations. while the performance of others involves no reliance on convention or rule-governed practices of any kind. Let us begin by taking a closer look at the more radical version of this skeptical stance. at least in the common law legal systems. of course. The skeptic concludes that since there are no rule––or convention––governed practices of identifying the intentions of certain individuals taken to represent the intentions of the legislative body. its actual existence and discoverability would. Hence.5 Notably. But Strawson’s (1964) critique makes it clear that only certain types of illocutionary act are essentially conventional. these rules or conventions must also determine whose actions are appropriate for the successful performance of an act of legislation and under what circumstances. As the more extreme one has it. be a rare occasion. apart from the conventions determining the literal meaning of the words used by the speaker). of course. also determine whose intentions count for the purposes of intentionalism. Intention is a mental predicate. tend to reach skeptical conclusions at this point. But this is not the relevant sense of ‘intention’ here. a myth. however. an underlying assumption that the actions of the legislators have been carried out intentionally. Notably. something which is utterly opposed to our conception of representative democracy. 4 There is. Hence each and every performance of such a speech-act involves an implicit invocation of the appropriate conventional practice which is taken to determine the social meaning of the speech-act in question (that is. legislative bodies are quite unlike most other corporate bodies. most jurists seem to concede this fact. seems to suggest that those rules which determine whose actions. conventions do not extend so far as to determine whose intentions—amongst the various members of the legislative body—and in what combination. Needless to say. at best. as it only says that something was not done by chance. . Brest (1980: 212). The following argument may be taken to be representative: 1.4 In this. but also whose intentions count as the intentions of the corporate body itself. The performance of certain actions counts as an act of legislation if an only if these actions are carried out in accordance with (and as an instance of following) certain rules or conventions. however. 6 See MacCallum (1968). where rules determine not only whose actions. It is only those possessing certain mental capacities who can be said to form intentions. But I could not find any arguments in the text which could be taken to support this claim. this is true of legislation as well. would count as the intentions of the legislative body itself. see text below. or under the influence of drugs etc.Whose Intentions? 123 convention governed practices of which they are parts. and in what circumstances. though. this is not the kind of intention which might have any bearing on statutory interpretation. There are actually two prevalent versions of this skeptical argument. The more moderate version of skepticism holds that even if we had an idea of what it meant for a legislative body to have an intention. attributing intentions to the latter is bound to be a fiction. Austin seems to have maintained that all the speech-acts for which he coined the phrase ‘illocutionary acts’ are essentially conventional in this way. Unfortunately. On his recommendation to follow the majority view.

namely. for instance. Attributing shared intentions to a group is not a purely quantitative matter of counting. 4. perhaps. in terms of this and similar intentions. as such. The conclusion.’ The affection for strawberries. this is often what we mean when we attribute intentions to a group of people (that is. 3. we still would not say anything like. those who oppose it) also share the expectation that this intention be held by their group. On the assumption that the conditions of (3) do not obtain in the case of legislative bodies. as such. for example. which is the relevant concept here. and that of shared intentions. how many members of a given group happen to share a certain intention. There is nothing wrong with the first two premises of this argument. that an attribution of a shared group intention makes sense. however. and the pertinent kind of intention. the following kind of statements: ‘The “Red Sox” are desperate to win tomorrow’s game’. Consider. in part. The former is purportedly the intention of a group. ‘The Dada movement strove to challenge some of the most established conventions of European art’. ‘The Palestinians want to have a state of their own’. Unless there are determinate ways of identifying certain individuals whose intentions represent the intentions of the group. even if it is shared by all the members of a certain nation. in a non-representative manner). Presumably. does not follow because premise 3 is actually false. or relevant. that there is a non-accidental connection between the identification of the group as a group of a certain kind. has nothing to do with the identification of the group as a nation. to speak of a nation aspiring to independence. we must distinguish between the idea of a group-intention. no intention can be attributed to a group of people. or perhaps most. as such. which the skeptic rejects. that the very same people also happen to share an extraordinary fondness for strawberries. as opposed to its individual members. does not possess a mind. as those who share the pertinent intention (and. To see this. while even expecting membership in the group to be identified.124 Legislative Intent and the Authority of Law 2. only individual people have the requisite mental capacities to form intentions. ‘It is the nation’s intention to eat great quantities of strawberries. 7 Cf Raz (1986b: 208). members of a certain group of people. these cannot be said to have any intentions whatsoever. But the idea of shared intentions involves no such ontological perplexities. as it were. The said intention is significant for them precisely (though not only) because they expect it to be shared by other members of the group. A group of people as such. organization etc. Only when the connection between the kind of intention in question and the nature of the group is somehow natural. Arguably. etc. what we basically say is that a certain intention or aspiration or such is shared by all. An additional element must obtain. But this is not so simple. It is natural.7 Had we discovered. for example. . Even if you are a skeptic about the idea of group intentions. In such cases. the skeptic is opposed to the ontological perplexities raised by the potential reference of this concept. you cannot deny that it is possible for many people to have basically the same kind of intentions (or at least very similar ones). which is somehow distinct from the intentions of any of its individual members.

More problematically. that is. This ambiguity is sometimes difficult to resolve. they can also have conflicting and incompatible ones vis-à-vis a law they have enacted. applies to the case in question.Whose Intentions? 125 Now. however. this has to do with a majority vote. Brest 1980). It is in accord with the rules which determine whose actions. 60 of whom voted in favor of R. it is sometimes embarrassingly difficult to answer the question of just whose 8 See eg Dworkin (1985: 47). To begin with. This leaves no place for doubt that perhaps the intention is only accidental to the identification of the legislative body as such. and 40 of whom opposed it. Nevertheless. that R would apply to x. say x. Let us assume that there are 100 members of parliament. that several difficulties arise with respect to the applicability of this model. we have a majority of members of parliament who thought that R would be taken to apply to x. it seems equally sufficient that the requisite intention be held by the majority of legislators (MacCallum 1968: 263). 30 did so (partly or mainly?!) because they were convinced that R would apply to x. each perhaps hoping (though often with no illusions) that his or her intention will eventually be realized in practice. R. Suffice it to say that in such cases there is a strong inclination to admit that either construal of the majority model would be utterly inadequate. Consider the following example: suppose the issue before the court is whether or not a certain statute. the majority model is ambiguous. Thus. employing the concept of shared intentions. True. . Ordinarily. the conclusion which emerges so far should not be overstated. It is unclear whether the majority which it is based on comprises those who voted for or against the bill. it is the business of legislators to enact laws. Let us assume that the following facts are known: of the 60 members of parliament who supported the bill. being an instance of one of the most common modes of attributing intentions to groups. After all. at least within the present framework of our constitutional practices. or those who share an intention with respect to the particular issue at hand. if it is normally the case that the actions of the majority are sufficient for the successful enactment of a law. But we also know that this is not the majority who would support the bill thus understood. let us return to law. On the assumption that there is no particular reason why legislators cannot share certain intentions. the majority model seems particularly suitable. namely. I do not believe that any single criterion is capable of removing all such cases of the ambiguity. and in what combination. Thus. It is not surprising. Furthermore. the majority model seems to offer a very plausible construct allowing for the attribution of intentions to the legislature. count as an act of legislation. while 35 of those who opposed the bill did so because they thought the same. it would be natural to maintain that legislative intent is present when most of the legislators share a particular intention vis-à-vis a law they have enacted. Considerations mentioned so far seem to support what is usually called the majority model of legislative intent (cf MacCallum 1968. Hence. Moreover. as has often been pointed out. Just as legislators can share intentions.8 at times there is no majority view—at least not in any compelling sense—on the particular issue bearing upon the case before the court.

The fact that legislation in legislative assemblies is a complex and concerted action involving elaborate procedures does not undermine this simple fact. motives. Let me conclude this section with the appropriate caution: the conceptual doubts about the possibility of ascribing intentions to the legislature do not seem to be well founded. If I decide to sell my old car. Sometimes such intentions combine to explain an action and motivate it. it could be because I have a desire to buy a new one. After all. for example. they may be quite separate and each one of them sufficient to explain or motivate the action in itself. An attempt to provide some answers to this question forms the topic of the next section.126 Legislative Intent and the Authority of Law intentions count. On the contrary: Unless we assume that the legislators have a pretty good sense of what it is that they strive to achieve by enacting a law. A group of people who do not sufficiently share certain intentions would normally find it very difficult to achieve the kind of concerted action which is required in passing a law. it would be very difficult to understand how they manage to achieve the act of legislation at all. Such a complex action as passing a law would often be accompanied by a whole range of intentions. A similar situation must be present in the case of legislation as well. But it would be a great distortion to maintain that this is always the case. expectations and the like. 3. at other times. ‘Why are these interpretative intentions relevant?’ . and perhaps because I like change for its own sake. legislation is a complex political action which strives to bring about a certain change in the normative fabric of the law. it still remains to be explored whether the kind of intentions which we are likely to discover would be helpful in statutory interpretation. and because I have promised my wife that I will no longer drive this old and unsafe car. However. this cannot be taken to solve any problem. WHAT KIND OF INTENTIONS? Most of the non-trivial actions we perform are accompanied by a variety of intentions. It is the kind of action which is done with a purpose in sight. Even if the legislators have an ‘interpretive intention’ (as Dworkin calls it) which consists in their intention with respect to the kind of intentions they intend to be relevant or dominant. cases where the majority of legislators share a certain intention vis-à-vis a law they have enacted would render the phenomenon of legislation a rather mysterious achievement. striving to achieve something. hopes. And this brings up a whole array of difficult questions: Which intentions are potentially relevant and why? Are some of these legally relevant intentions more important than others? How does one cope with the cases where various intentions are in conflict or otherwise incoherent?9 9 Dworkin (1985: 52–54) rightly contends that one cannot answer these questions by relying on the intentions of the legislators themselves. or almost never. Suggesting that there are never. An attempt to rely upon the interpretative intentions would only beg the question. In such cases—and in so many others as we shall see shortly— the appropriate conclusion should be that the legislature had no particular intention with respect to the issues bearing on the case before the court.

10 Bearing this qualification in mind. The distinctions must thus be guided by certain assumptions about theoretical relevance. desire. to enhance his chances of winning the forthcoming local elections. In our case. 10 For this reason. let me emphasize that any classification of the various intentions with which a given act is being performed is necessarily limited and partial. expectation. let us also presume. while others. 14 Dworkin’s distinction between abstract and concrete intentions is a good example of how this triviality can be muddled. what I shall call further intentions. the legislators are likely to have had a variety of. His notion of the abstract intention stands for the intention which is manifest in the law itself. I will mostly talk about a single legislator in this section. it would also be a mistake in the present context to attach too much weight to the analysis of the concept of intention. are not. it is useful to distinguish between what the legislator aims to achieve (or avoid) by enacting the law. which I shall dwell on in some detail below. and his notion of the concrete intention draws upon the legislator’s thoughts about the proper application of the words used in the statute. 15 The terminology is borrowed from Moore (1985: 344). though they exist. 11 This distinction. or what speech-act theorists call the condition of sincerity.13 Admittedly. etc) about its proper application.14 Apart from the aims which are manifest in the language of the law itself. Surely it must have been one of the intentions of the legislator that if anything is a vehicle it should not enter the park.11 I will consider each of these broad categories separately. 3. I believe that the following discussion will show this to be a superfluous complication. this is a rather trivial point. and its related notions.What Kind of Intentions? 127 Before I venture to suggest some answers to these questions. like motive. 12 For the sake of simplicity. as the possibilities of placing the dividing lines are almost endless. to revert to our example. . This was bound to yield unnecessary questions eg ‘Are there intermediary cases between the two?’ ‘Is the distinction a matter of fact or a question of theoretical convenience?’ and the like. On the notion of further intentions in speech-acts in general. they must be sensitive to the reasons one would have for assigning legal significance to the various types of intention. though in various forms. has been long recognized. expectations. let me suggest the following distinction. The legislator cannot deny such an intention without breaching the rules of language or logic. or muddled.1 Aims and Further Intentions When we ask ourselves what it is that the legislator12 sought to achieve by enacting the law. the ‘No vehicles in the park’ rule. and. and her thoughts (or assumptions. to reduce the level of pollution in the vicinity. we will always find that certain purposes are manifest in the language of the law itself. as a matter of logic. The terminology would have been innocuous. the legislator might have enacted the law in order to enhance the safety of people who use the park. hope. once again. but trivialities sometimes tend to be forgotten. 13 See Austin (1955: 15). see Strawson (1964: 161–63). Consider.15 in enacting the law. See MacCallum (1968: 237). assuming that the multiplicity of legislators should not alter any of the basic points made here. Searle (1969: 60). Thus. had Dworkin not further maintained that the difference consists in different ‘levels of abstraction’ (1985: 48). purpose etc. At the most abstract level. to protect the safety of squirrels in the park.

and what it was that he strove to achieve by it. be motivated by desire for revenge. in which case the further intention is identical.128 Legislative Intent and the Authority of Law There are three points that I wish to emphasize about further intentions. Likewise. Second. The Marxist notion of ‘class-consciousness’ is often given as an example in this context. motive is an extremely problematic concept. the legislator’s intention of making himself more popular by enacting this law. there are motives which do not figure in any proper description of what the legislator sought to achieve by enacting the law (that is. On the other hand. . however. see eg K Graham. First. ‘How Do Illocutionary Descriptions Explain?’. with the intention which is manifest in the language of the law itself. It is even more difficult to specify any general guidelines according to which such a distinction could be substantiated. It might be a good idea. Is there any sense in which such intentions are not legally relevant. while protecting the squirrels may not be such a good idea. I take it.16 Of course it is possible to enact a law without having any idea why such a law is required. Suffice it to say that there is often a substantial overlap between motives and further intentions. as opposed to just being morally problematic? It is not always as easy to recognize the difference between relevant and irrelevant intentions as this example might be taken to suggest. But if we think that there is any legal relevance to further intentions. certain moral convictions the legislator holds may explain both his motive in enacting a given law. In particular. for example. Such laws are. it is often difficult to distinguish the further intentions with which an act has been performed from the agent’s motive in performing it. 17 Cf Anscombe (1956). is a kind of intention which. it should be realized that hardly any act of legislation is performed without any such further intentions whatsoever. and those which are not. quite rare. for instance. in Tully (1988). and perhaps most problematic point. 18 For a discussion of this point in the context of intentionalism in historical studies in general.18 An analysis of such hidden motives and their potential role in legislation is an interesting topic in its own right. to enhance the safety of people who use the park. the main question is whether we can come up with a criterion which is independent of the content of the particular intentions in ques16 There is one general exception to this: when the intention which is manifest in the language of the law itself is held by the legislator to stand for an ultimate purpose. An agent may. both would seem to be potentially relevant. But this is not always the case. but it has little bearing on our present concerns.17 and I cannot explore its various meanings here. stems from the distinction that we might wish to draw between further intentions which are legally relevant. even enthusiastic supporters of intentionalism would be very reluctant to take into account. as it were. It would be quite extraordinary if intentionalism were taken to extend to such hidden motives as well. while at the same time it may be the case that revenge was what this agent strove to achieve by his action. In any case. I shall not dwell on this possibility. Furthermore. These are typically motives that the legislator is not (fully) aware of. but we may hope that this does not happen very often. The third. in terms of further intentions). Admittedly.

. pertaining to the kind of speech-act performed. consider the question of whether or not the ‘No vehicles in the park’ rule also applies to bicycles. and intending that not x. On the contrary. Thus. deceiving. 2. for example. rendering it explicit would be self-defeating. which will often require supplementation by other. it simply did not occur to his mind. The whole point of insinuating. the speech-act cannot remain one of insinuating (Strawson 1964: 163). in such cases it is not part of the legislator’s intention to secure the effect he strives to achieve through others’ recognition of his intention to secure it. primarily moral. such as insinuating. legislators often have certain intentions or expectations as to the proper application of the law they have enacted. More precisely. But of course. to take a typical example. or will the line eventually be drawn only on the basis of moral and political considerations delineating a sphere of legitimate intentions with which laws should be enacted? There is perhaps at least a partial content-independent criterion. The former is an instance of either (1) or (2) above. 3.19 Needless to say. have the rather unique feature that the speaker’s further intention is essentially non-avowable.2 Application Intentions Apart from their various aims in enacting a given law. the intention to induce. there is the possibility that the legislator had a determinate intention that the rule should—or should not—apply to bicycles as well. is that the hearer suspects.What Kind of Intentions? 129 tion. the plausibility of intentionalism with respect to application intentions derives from the existence of the kind of intentions designated by option (3). and the latter is an instance of (3). a certain belief. Let us term these the legislators’ application intentions. but only suspects. when it is one of the intentions of the speaker to use a speech-act for purposes of manipulation. It is possible that the legislator has not given the question any thought at all. that the legislator himself is most likely to disavow them. 3. showing off etc. Similarly. With due caution. It may serve as a sufficient (but not necessary) condition for the identification of further intentions which one would initially be reluctant to take into account. considerations. this can be applied to our problem as well. which practically amounts to the same thing. this is only a partial criterion. Certain types of speech-act. The following possibilities exist: 1. it is his intent that the former intention remains unrecognized by the hearer. Finally. Once this intention is rendered explicit. there is a strong element of self-defeat in rendering such intentions explicit. for instance. The legislator may have thought about the question. but either failed to make up his mind or intended to delegate the decision to the courts. whereby the legislator has had a determinate intention with respect to 19 Note that the phrase ‘not intending that x’ is ambiguous between having no intention about x.

like any other speech-act. the idea of a hypothetical intention is quite unhelpful. how is one to tell what the legislator would have intended? In short. should adopt a point of view which differs from that of the legislature. advocates of intentionalism have often attempted to define their doctrine in such a way as to encompass situations of these types as well. see Chapter 2. and my discussion will be confined to this option. Hence also. sect 2. The first is based on what might be called the idea of hypothetical intention: In situations such as these. it is argued. it is far from clear what kind of facts should be taken into account: should judges take into account only the explicitly stated aims of the legislator. and I happen to know that he takes a ride every morning in the park. There are two common views which aim to overcome the lack of a determinate legislative intent. according to the suggestion under consideration here. to say the least. is not a vacuous suggestion. or various presumed aims as well? Should the judge go to the trouble of finding out the legislator’s personal inclinations too? Imagine.130 Legislative Intent and the Authority of Law the issue bearing on the case before the court. which are guided by the presumption that judges. . or it is just an awkward way of saying that the judge should decide the case according to those kind of considerations which are expected of legislators. The second alternative sometimes suggested in this context is a recommendation to judges to ask themselves what it is that they would have intended had they been in the legislator’s place. must be performed on the basis of an under20 On the definition of communication intentions. But how would one go about answering such a question? After all. the correct decision can easily be at odds with the actual intentions of the legislator. as the kind of reasoning suggested to judges on this option is indifferent to the actual intentions of the legislator. as described in (1) and (2). It is thus advisable not to discuss this suggestion under the title of ‘intentionalism’ at all.’ Is this the kind of fact judges should be allowed to consider? And if not. the judge must ask herself what it is that the legislator would have decided had he been directly confronted with the issue and a decision required of him.20 An act of legislation. it would prove extremely difficult to answer such a counterfactual question even with respect to one’s own intentions. in which case we are back with the same perplexities. the judge saying something like this: ‘I know this legislator. for instance. It can be contrasted with other. potentially conflicting grounds for judicial reasoning. Furthermore. as a matter of fact. is ambiguous: either it is tantamount to the hypothetical-intention thesis. This. If I have to decide what it is that I would have done were I in place of A. Yet as the situations described in the former two options are not all that rare. there is nothing I need to know about the actual intentions of A. ex officio. I shall assume from now on that application intentions are potentially relevant only when. the legislator has had a determinate intention bearing on the issue before the court. This. In any case. First. admittedly. this thesis is irrelevant. There are two further points to be noticed about application intentions. however. they should not be confused with communication intentions. But for our present purposes.

Of course the legislator can be mistaken (or insincere). and interpreting it. legislative intent may turn out to be incoherent in many other ways than the one described here. The second. and as a matter of fact. that is of the appropriate interpretative strategy judges should adopt in the resolution of hard cases. As I have repeatedly argued in the previous chapters. of course. It should be emphasized that this is not a matter of the intensity with which the legislator holds his various intentions. no logical incoherence is attributed to the legislator. It should be realized. was meant to achieve a certain purpose. the application intentions ought to be taken into account—from the legislator’s own point of view—only if. and as such. or else he would have to admit that P was not an adequate formulation of his further intentions. when the further intentions are assigned precedence over the application intentions with which they are inconsistent. she must expect the hearer to share the pertinent knowledge of these conventions and states of affairs and be aware of the speaker’s intention to rely on them. and more important point. would typically be based on his assumption that R thus applied is more likely to achieve P. and this is another sense in which we can speak of the potential frustration of the legislators’ intentions. be frustrated. That would amount to the absurdity that when the means are inappropriate for achieving the ends. either the legislator would have to admit that his application intentions were inadequate. But in this case.What Kind of Intentions? 131 standing that certain conventions and other states of affairs obtain. one should nevertheless stick to the means. being likely to defeat his own purposes in enacting the law. Thus. they also include a great deal of background knowledge—referring to conventions and other states of affairs—allowing for the successful performance of an act of communication. however. that in this case the frustration of the legislative intent is a standard instance of misunderstanding. but only a factual mistake. But in any case. meansends relationship of sorts would typically have to obtain. as it were. understanding an act of communication. of course. their realization is likely to enhance his further intentions. as Dworkin rightly argues (1985: 50–51) in such cases it would be impractical . that his application intentions ought to be assigned precedence to his further intentions. eg when the legislator’s further intentions or application intentions are internally inconsistent. and to the extent that. And. It very well might be the case that the legislator has a clearer or stronger sense that R should be interpreted to apply to x than any of his further intentions in enacting R. In either case. for instance. however.21 21 To be sure. are two separate things which ought not to be confused. when a speaker expects to be understood. However. is this: between the legislators’ application and further intentions (or the aims which are manifest in the law). his application intention must be indicative of his further intentions. Suppose a statute. applying R to x might be inconsistent with the intention of achieving P. without being incoherent. and hence better ignored. The legislator cannot maintain. On the other hand. But such expectations can. but a matter of logic. has nothing to do with the question under consideration. say P. These necessarily include linguistic conventions which determine the meaning of the utterance in the given situation. R. The application intention of the legislator that R should be taken to apply to x. as it were.

I shall not be concerned with those intentions which are manifest in the language of the law itself. legislators typically have further intentions in enacting a given law. That is. I must emphasize that I shall not be concerned here with constitutional interpretation. people do not normally expect statutes to be interpreted by the courts primarily according to the legislature’s intentions. 22 For obvious reasons. the US judiciary is much more inclined to look at legislative intent than its British counterpart. Constitutional interpretation will be discussed in the next chapter. the frustration of such intentions would result in the breach of the rule in question. I have also suggested that some of these further intentions may be essentially non-avowable. however. Apart from the intentions that are manifest in the language of the law itself. . If the parties to a legal dispute can show that they had a justified expectation that the relevant statute be interpreted according to the legislators’ intentions (assuming the legislator had had such an intention bearing on the case).132 Legislative Intent and the Authority of Law To sum up so far: I have distinguished between three main types of intention that are potentially relevant from the legal point of view. Generally. which comprise a general practice of reliance on legislative intent22 for purposes of interpreting statutes. two clarifications are called for. in which case they are rendered initially irrelevant. I shall be assuming that there are no conventions. we arrived to the main normative question about the potential relevance of legislative intent in statutory interpretation. 23 Even within common law systems there are differences in the conventions of statutory interpretation with respect to deference to legislative intent. the practical result is that the legislator had no intention with respect to the pertinent issue. However. as if she had not made up her mind. that at least in the common law legal systems there are no such conventional practices. I have pointed out that considerations of consistency require that the legislator’s application intentions be taken into account only if. that is.23 or even impossible to decide which intentions ought to be regarded as the dominant ones. nor do I intend my arguments to have any straightforward application to the latter. judges would normally be obliged—other things being equal—to respect these expectations. before taking up this task. they are in accord with his further intentions. First. And in any case. WHY SHOULD INTENTIONS COUNT? At long last. and to the extent that. we must now turn to the question of the possible justifications of intentionalism. I shall assume. 4. followed by the community at large. For example. the question of whether such intentions ought to be taken into account or not. and there we shall see that the interpretative problems and the moral concerns are quite different and thus yield different conclusions. the intentions which are manifest in the law itself are of little help to judges faced with hard cases. and sometimes they would have certain intentions bearing on its proper application. The second clarification is this: considering the various justifications of intentionalism. namely. This assumption ought to be emphasized for the following reason: had there been such a conventional practice. judges would have had a reason to respect it on grounds of the ideal of protected expectations. Finally. Hence in such cases.

agreed upon. rather than the intentions of legislators. Suppose further. Judges ought to respect the intentions of the legislature. Perhaps it also entails that the final say on legal matters should rest in the hands of the legislative bodies. But this line of thought is even less promising than the previous one. they ought to respect the choices of the elected representatives of the people. After all. was enacted. Suppose. that R should not apply to x. The legislators’ thoughts about how their . what it is that.Why Should Intentions Count? 133 How can intentionalism be justified. they think. for example. is sufficient to gain majority support (Ely 1980: 17). After all. In other words. This. there is no assurance that the legislators’ intentions adequately reflect majority opinion. however. and the majority now holds the opposite. I suspect. in statutes. is to establish. is the argument based on democratic principles. But this only begs the question: what is it that the representatives have democratically chosen? Opponents of intentionalism can plausibly argue that it is not accidental to democratic procedures that they result in authoritative texts. as precisely as possible. considerations belonging to the concept of law render this option unacceptable. Hence. what is the point in respecting the majority view if it is no longer the majority view? But this is a perplexing result. particularly when the law is relatively old and may have been enacted in a very different socialpolitical environment than the one which prevails during its interpretation by the court. that is. It entails that intentionalism is not limited to the legislators’ intentions in enacting the law. even if one could make sense of the argument from democracy. the majority’s intention was that R should apply to x. namely. that when a statute. say ten years ago. To the extent that judges ought to respect the wishes of the majority (and of course I am not assuming here that they ought to do so). It is often stressed in this context that since judges are not democratically elected or politically accountable for their decisions. Needless to say. that most of those who rely on the argument from democracy have a different thought in mind. and perhaps even more laymen. I suspect. that the constellation of the legislators’ intention has changed since. then. R. one which. Which constellation of the legislators’ intention should the judge follow according to the democratic principle. because such intentions are in line with the wishes of the majority. It is this principle of majority rule that often motivates intentionalism. find appealing. but extends to intentions which have not been expressed in any institutionalized way. many lawyers. at most. One of the main objectives motivating parliamentary debates to culminate in a vote on a particular text. respect for democratic procedures entails that judges should apply the law whenever this is possible. they would be better to consult opinion polls. however. falls far short of admitting to the intentionalist’s conclusions. the past or the present one? Relying on the principle of majority rule would force one to choose the contemporary constellation of the legislators’ intentions as the one which should be followed. One can readily concede that judges ought to respect the political choices of people’s elected representatives. its applicability to any but contemporary laws would be utterly problematic. if it is not supported by legal practice? The most popular line of thought.

134 Legislative Intent and the Authority of Law
subjects ought to behave are legally irrelevant, unless they have been expressed,
that is, communicated, in one of the established ways recognized by the legal practice. Thus, if intentionalism is to make any sense at all, it must be confined to the
original intentions of those who enacted the law. But, as we have seen, whenever
the latter is not in accord with the contemporary constellation of the legislators’
intentions, the argument from democracy renders intentionalism quite unattractive on its own terms.24
Let me turn now to a different line of thought which I find much more promising. Generally, I will suggest that the primary way of justifying reasons for complying with the intentions of the legislator involves the very same considerations
which are taken to vindicate compliance with an authority’s directives in the first
place. In other words, I will argue that the justification of deference to legislative
intent must be derived from the conditions which can be taken to establish that
one person should be acknowledged to have authority over another. These conditions have been discussed in Chapter 6, and I will not repeat them here. The
present argument is confined to showing that the same analysis, based on Raz’s
conception of the concept of authority, can be employed to elucidate the conditions under which it would be reasonable to defer to the authority’s intentions
when assessing how to interpret his directives.
Generally, as we have seen, the legitimacy of a practical authority derives from its
mediating role; that is, an authority should be acknowledged as a legitimate one if,
and to the extent that, its alleged subjects are likely to comply better with the reasons
for action which apply to them by following the authority’s directives than by trying
to figure out or act on those reasons by themselves. This is basically what Raz calls the
‘normal justification thesis’. It is crucial to note, however, that this normal
justification thesis is in fact compound, consisting of two distinct types of
justification. In some cases, compliance with the authority’s directives can only be
justified on the basis of the assumption that the authority is likely to have better
access to the right reasons bearing on the issue than its alleged subjects. In other
words, the assumption here is that the authority knows better what ought to be done,
as it were. I will call this the expertise branch of the normal justification thesis.
Relative expertise, however, is not the only way to meet the conditions of the
normal justification thesis. At other occasions, it is enough to show that the
authority is better situated than its alleged subjects to make the pertinent decision;
that is, without thus being committed to the presumption that there are certain
reasons for action, whose identification and ascertainment are more accessible to
the persons in authority. By and large, this is the typical kind of justification available when the function of the authoritative resolution is to solve collective action
problems, such as large-scale coordination problems, prisoner’s dilemma situations, and such. Roughly, then, I will presume that a problem of collective action
arises whenever the fact of having an established and enforceable decision is more
important (morally or otherwise) than the particulars of the actual decision taken
24

Cf Gans (1988: 105).

Why Should Intentions Count? 135
(that is, within a certain, reasonable, range of options).25 In situations such as
these, the legitimacy of the authority in question derives from its ability to solve
the collective action problem, an ability which may not involve expertise of any
kind. This latter point is of crucial importance as it shows that the legitimacy of
authorities to issue directives may be acknowledged even with respect to issues, or
fields of conduct, where no possibility of expertise is recognized. (More on this
point later.)
This distinction, between the expertise and the collective action theses, bears
upon the plausibility of intentionalism as follows: the case for deferring to the
authority’s intentions—when its directives require interpretation—is typically
much stronger in the case of expertise than in the case of collective action. When
one’s reasons for acknowledging the authority of another are based on the assumption that the authority is more likely to have a better access to the right reasons bearing on the pertinent issue, it would typically be most sensible to take the authority’s
intentions into account when her directives require interpretation. An example can
illustrate this point. Suppose one acknowledges the authority of one’s physician,
considering her the best available expert on the relevant medical problems. Now,
suppose that the doctor’s medical prescription is ambiguous, as there happen to be
two different medicines which fit it. Under normal circumstances, attempting to
clarify the physician’s intention would be the most sensible thing to do.
On the other hand, if one’s reasons for complying with an authority’s directives
are based on the collective action thesis, there is no need to presume that the person in authority is an expert in the pertinent field. Hence there does not seem to
be any particular reason to defer to the authority’s intentions in order to solve
interpretative questions as, ex hypothesi, the person in authority was not presumed
to have a better access than the subjects themselves to the reasons on which they
should act.
Admittedly, in both cases, the task of filling in the gaps left by the need to interpret the authority’s directives can be carried out by someone else who would thus
have to be acknowledged as yet another authority. But there is this crucial difference: in the case of expertise, there would be reason to confer the discretion on the
second authority only if, and to the extent that, the latter is believed to have at least
equal expertise in the pertinent issue. On the other hand, an authority that was not
presumed initially to possess any particular expertise on the question under
consideration can be replaced by anyone else whose position enables him to solve
the problem equally well.
Thus, when the expertise justification thesis applies, there is reason to take the
authority’s intentions into account when assessing how to interpret the latter’s
directives. But even in this case, the reasons do not carry absolute weight, as it
were. When contrasted with other, competing considerations (for instance, the
advice of another expert), their relative weight would have to be sensitive to the
25
It is not part of my argument here that all collective action problems, as such, require an authoritative resolution; many collective action problems are efficiently settled by other means.

136 Legislative Intent and the Authority of Law
degree of likelihood that the authority indeed has better access to the right reasons
bearing on the particular issue. The more reason one has to believe that the
authority knows better what ought to be done in the circumstances, the more
weight one would attach to the authority’s pertinent intentions. Furthermore, one
can see that deference to the authority’s intentions should replace other reasons for
decision only within the bounds of expertise considerations. One’s reasons for
complying with the judgments of one’s physician are confined to those considerations which apply to the question of the most appropriate medical treatment.
They should not include reasons which are not based on expertise, like, for
instance, the reasons involved in a decision not to take the treatment at all, or to
commit suicide instead.
Now, it is being assumed here that the alleged legitimacy of the legal authorities
derives from both sources. According to this assumption, legislatures exercise
both types of authority, depending on various factors, like the particular realm of
conduct, the nature of the decisions required, the kind of evidence available to the
legislature, etc. Sometimes the legitimacy of their directives derives from the
expertise justification thesis,26 and at other times, it derives from the collective
action justification thesis. And quite often, it may derive from both. A given statue
may have certain aspects which are justified from the perspective of the expertise
branch of the normal justification thesis, and other aspects may be justified
because they constitute a solution to a collective action problem.
Thus, the conclusion I am driving at should be apparent by now. The intentionalist’s thesis gains its plausibility from the availability of the expertise
justification thesis, and its applicability is confined to those cases. When the legitimacy of the legislator’s authority—in a certain realm of conduct—derives from
the collective action justification thesis, judges have no particular reason to defer
to the legislators intentions in filling in the gaps arising from the need to interpret
their directives. This task can be performed equally well by the judges themselves,
exercising their own authoritative role.27 We have also seen that when there is reason to defer to the legislators intentions, the relative weight assigned to this reason
must depend on the degree of relative expertise that the legislators are presumed
to possess. Furthermore, this reason should not replace other reasons if the latter
are not within the confines of expertise considerations.
At this point, though, one might raise an objection which runs along the following lines. Consider the role of authorities in the solution of collective action
problems. Let us presume that potential litigants have a justified interest in avoiding litigation as far as possible, and also that they have a justified interest in the
predictability of the judicial decisions in case these are eventually required. Let us
further assume that the dispute concerns the interpretation of a statute and that
there is a legislative intent bearing on the case. Now, would the parties concerned
26
I should be kept in mind that the relevant legislature is often an administrative agency (like the
US FDA, or EPA etc) and those tend to possess a considerable amount of expertise.
27
It should be remembered that judges themselves act in an authoritative capacity, and that in the
case of higher courts, this authority often equals that of the legislators.

and perhaps more essential. or that morality is an objective domain. would also tend to maintain that basic moral principles are epistemically transparent. none of which should rely on skepticism. because this would enhance the stability and predictability of the law. In order to find out the relevant legislative intent. neither of which obtains in the case of legislative intent. as it were. within the bounds of the collective action justification thesis. not to mention all the obstacles to extracting the legislative intent from the historical material. Stability and predictability require at least two conditions. I have already mentioned that in the common law systems. Second. is one which is not supported by the facts. intentionalism can be justified through reference to the values of stability and predictability. conventionally entrenched. Let us return to the thesis which I have advocated so far. there is no reason to hold anyone an expert in the relevant field. This is quite important because it is arguable that expertise is not available in the realm of morality. Since morality is the kind of domain which admits of no verification procedures. But why should we think that expertise is not applicable to the moral domain? There actually several reasons for denying the possibility of expertise in the realm of morality. On the contrary. The problem with this argument is quite simple: it is based on factual assumptions which do not happen to obtain. it seems that in cases stemming from collective action problems. people do not generally expect that statutes will be interpreted. it could be argued that the idea of expertise in morality is also morally objectionable as it would be inconsistent with . there is no possibility of expertise there. Finally. at least not primarily. As to the first condition. One important implication of this thesis consists in the fact that internationalism is not a plausible option with respect to those domains in which it is not possible to recognize expertise. by anyone who cares to see. The presence of the second condition is even more doubtful: legislative intent is not easily accessible and ascertainable to the public at large or even. Since many acts of legislation are based on moral reasons and purport to affect moral conduct. according to the intentionalist doctrine. that there be an actual practice. if the case eventually reaches the court. those who think that there are moral truths. giving effect to a particular way of solving problems. Unless some people can be claimed to have better access to certain procedures which can be taken to verify the truths in a given domain. would the judges not have a strong reason to respect such expectations? In other words. one typically needs a great deal of material on the legislative history of the statute. There is just nothing more to be known about morality than that which is clarified by reasoning from true premises. First. that the relevant sources of decision-making be easily accessible to the parties concerned. just there to be seen. in fact. that is. even if it is available. Another line of thought which leads to the same conclusion would be premised on the assumption that expertise requires the possibility of some verification procedures. Hence the suggestion that courts should interpret statutes by deference to legislative intent.Why Should Intentions Count? 137 not be better off relying on the relevant legislative intent when they plan their conduct? And. to most lawyers. the practical significance of this problem is considerable.

even if only briefly. By the former I mean. That is so. once intentionalism is advocated on the grounds of the expertise justification thesis. In other words. even in moral matters there is often a need to solve collective action problems and an authoritative decision might be justified on that ground. Hence it should be realized that there is no contradiction in acknowledging the legitimacy of an authority in issuing directives on certain matters of moral significance. the opinions expressed in various commissions. . often it is more important to have an established and enforceable authoritative decision than getting the details of the decision right. But it may be more important for us to have an authoritative definition of ‘theft’ in the criminal code. and the like. for example. and not merely of the legislators’ intentions. than getting the details of the definition right (within a certain range of acceptable options. to progress in various sciences. to attach greater or lesser weight to their pertinent intentions. Similar considerations pertain to the dimension of time: the older the law is. of course). while at the same time denying the possibility of expertise in morality. that the older a law is the more suspicious one has to be of the relevance of the legislators’ intentions. Even those who deny the possibility of expertise in morality can acknowledge the legitimacy of an authority in issuing directives on matters of moral significance. That is. and thus would not call for any particular deference to legislative intent. We should be careful here. Thus the natural conclusion. it is quite important to have a definition in the criminal code of what constitutes ‘theft’. and this is basically a moral question. and therefore also of the applicability of intentionalism with respect to these matters. due to the accumulation of experience and the available evidence. can shed light on the considerations bearing on the case before the court. and serve as valuable sources of decision-making. and also as an indication as to the level of expertise the legislators are presumed to have. and accordingly. For example. People are morally responsible for their choices and actions only if they are based on their own moral deliberation and ethical choices. The reasons for this are obvious: expertise changes over time. both independently. To begin with. the opinions of these people. the less attractive intentionalism becomes. The legitimacy derives from the fact that even in the moral domain. Therefore. Such material enables judges to substantiate their assumptions on the legislators’ expertise. the intentions of officials and experts who participated in the drafting process. because authoritative resolutions on certain issues of moral significance can be justified on the basis of the collective action thesis. I would like to mention some further implications of the thesis advocated here. and the like. it seems that laws which are based on moral reasons cannot be associated with the expertise branch of the normal justification thesis. So there seem to be host of epistemic and ethical considerations which count against the possibility of recognizing expertise in the moral domain.138 Legislative Intent and the Authority of Law the basic demands of moral autonomy. Within the bounds of the expertise justification thesis. manifesting expertise. and the evidence they have relied upon. we can see why judges should sometimes take account of preparatory material on the basis of which the law has been enacted.

Furthermore. a certain law is justified on the basis of the expertise branch of the normal justification thesis. at least in the context of law. the latter would have to be more suspect. to the extent that there is. compared with judgments on the appropriate ends to be achieved (that is. or anybody else for that matter. further intentions). should not be expected to be able to decide in advance on all the appropriate means for achieving a given end. as means tend to vary a great deal with the circumstances. the rather natural conclusion that judges should be more cautious about the legislators’ application intentions than about their further intentions.Why Should Intentions Count? 139 Finally. such intentions should be scrutinized meticulously. This entails. since. It is not part of my argument to insist that this is likely to happen very often. the expertise justification thesis makes allowance for a certain discrimination between the legislators’ further and application intentions: typically. such an intention and it can clarify something that needs clarification. The point I wanted to make is strictly conditional: if. with respect to judgments about the appropriate means to achieve certain ends. I do not think that this is a correct view. It might be argued that the considerations mentioned so far actually prove the implausibility of intentionalism altogether. and only if. the expertise justification thesis is never available. Admittedly. Now. The reason for this is as follows: recall that application intentions manifest one’s thoughts on the appropriate means to achieve certain ends. would it make sense to defer to the legislature’s intentions in the interpretation of the law. that is. since independent reasons and evidence are typically more available in these cases. if the reasons for acknowledging the legitimacy of legal authorities are only supported by the collective action justification thesis. Hence the legislators’ alleged expertise. but I would not try to argue against it here. again. The chapter cannot be concluded without mentioning the following objection to the thesis it espouses. can be more readily contested on the grounds of competing evidence. there would be no occasions for its application. they are often verifiable in ways which are not equally available with respect to judgments about ends. . the former possess a greater degree of ascertainment. legislators. intentionalism in law is indeed rendered vacuous. in fact.

.

Every legal system must have. however. This unique legal power raises two main normative questions: One is about the moral legitimacy of the institution itself. until recently. however. First. and the other is about the ways in which it ought to be practiced.9 Constitutional Interpretation 1. 1 Most non-democratic countries have written constitutions as well. Thus. its basic law making and law applying institutions. certain rules or conventions which determine the ways in which law is made in that system and ways in which it is applied to particular cases. and the kinds of authority they have. In stable legal systems we would also find rules and conventions determining the structure of sovereignty. It is one of the arguments of this chapter that the ways in which constitutional interpretation ought to be carried out must be sensitive to the main concerns about the moral legitimacy of a constitutional regime. This chapter is confined. or perhaps just used to be. I will not discuss sub-state or regional constitutions nor should it be assumed that the arguments presented here would straightforwardly apply to such cases. resulting in legal decisions that may last for decades and are practically almost impossible to change by regular democratic processes. 2 These are. the various organs of government. and their constitution is basically customary. that is. and a few years ago the Israeli supreme court has ruled that it has the power of constitutional judicial review. and the answers to them are bound to be related. the UK. (Israel does have some basic laws which are quasi-constitutional. . is not entirely free of judicial review due to its submission to the European Convention on Human Rights and some other quasi-constitutional constraints the courts have recently recognized. TWO BASIC QUESTIONS I N MOST CONSTITUTIONAL democracies. by necessity. though by now very few.) Even the UK. of course. we need a clearer picture of the issues. a document (or a limited number of documents) enacted in some special way. containing the canonical formulation of that country’s constitution. Both of these questions are actually more complex. the interpretation of the constitution involves the power of the judiciary (typically the supreme or constitutional court) to determine issues of profound moral and political importance. New Zealand and. Other democracies. however. to a discussion of constitutional democracies. Another restriction on the scope of this essay is that it is confined to constitutions of sovereign states. on the basis of very limited textual guidance. then every legal system has a constitution. Most democratic1 countries have a ‘written constitution’. if by ‘constitution’ we mean the basic political structure of the legal system.2 have no such canonical document. Israel.

to interpret the constitutional document and impose its interpretation on all other branches of government. which has already been amended hundreds of times. The constitution. 1. constitutions could not achieve their longevity. The question of whether this is an inevitable aspect of constitutional interpretation. setting out the basic structure of the legal system for future generations. The main technique by which constitutions can be guaranteed to be lasting for generations is their rigidity: Constitutions typically provide for their own methods of change or amendment. an essential aspect of constitutions that they are meant to be lasting. however. Supremacy. I will therefore assume that this is a necessary feature of written constitutions. is the supreme law of the land. Constitutions purport to establish and regulate the basic structure of the legal system. as we say. the more ‘rigid’ it is. Longevity. judges have the power to change the constitution. As a matter of historical development. and the Swiss constitution. 2. is an issue I will discuss in some detail below. the main way in which constitutions change is by judicial interpretation.4 Generally it is assumed that unless the constitutional provisions prevail over ordinary legislation. however. Constitutions vary considerably on this dimension. including the legislature. and thus they are deemed supreme over all other forms of legislation. by their very nature. A written constitution typically enables a higher court. As we shall see in detail below. It is. 3. the constitution of India. making it relatively much more difficult to amend than ordinary democratic legislation. Ordinary statues may happen to be in force for a very long time as well. But this is not an essential aspect of ordinary legislation. there is no point in having a constitutional document at all. for example.5 Without such relative rigidity. 5 The US constitution is probably one of the most rigid constitutions in the Western world. practically necessary for judicial review. it has become the reality that in legal systems with written constitutions some higher court has the power of judicial review. it would be very difficult for a court to impose restrictions on the legislature’s authority. Without such a canonical document. however. that they are intended to apply to generations well beyond the generation in which they had been created. famously propounded by Hans Kelsen. that constitutions do not change in other ways. a written constitution does make a crucial difference because it establishes a practice of judicial review. Constitutions. with which we need not be concerned here. like the supreme court or a special constitutional court. purport to be in force for a very long time. . or not.3 Far from it. however. This latter thesis. 4 The constitution’s normative supremacy should not be confused with the idea that all law derives its legal validity from the constitution.142 Constitutional Interpretation Nevertheless. I am not claiming that this power of judicial review is a necessary feature of legal systems with a written constitution. which is quite frequently amended by popular referenda. is probably false in most legal systems. Whether they recognize it as such or not. Rigidity. 3 A written constitution is. The more difficult it is to amend the constitution. and they often do so. but it is an essential aspect of constitutions that they are relatively secure from formal change by the ordinary democratic processes. None of this means. There are five main features of constitutional documents worth noting here. At the other extreme. there are.

prong of constitutions involve moral issues as well. purport to have very general application. the establishment of the main legislative. is perhaps partly a matter of coordination. Moral content. The moral content and moral importance of a bill of rights is obvious and widely recognized as such. that many aspects of the other. we are not morally indifferent to the question of who makes the law and how it is done. Many constitutional provisions. In the second domain. by people who lived in a different generation. if there is such a division. however. they have the final say on the matter. Be this as it may. including the legislature. structural.6 The aspiration for longevity may be another reason for abstractly formulated principles. and the reasons for it are historical. On the one hand. potentially long lasting. particularly in the domain of the bill of rights and similar matters of principle. (I would venture to guess that a high level of specificity tends to occur in those cases where the constitution allows for amendment by a relatively straightforward process of referendum. This tension between 6 Once again. executive and judicial branches of government and their respective legal powers. often enacted a very long time ago. their decisions are often morally very significant. and so on.Two Basic Questions 143 4. and the area of human and civil rights. constitutions typically define a list of individual and sometimes group rights which are meant to be secure from encroachment by governmental authorities. but many aspects of it are not without moral significance. Determining the structure of government. these constitutional decisions are typically based on the interpretation of very general and abstract provisions. sometimes an abstract formulation is simply a result of compromise between competing conceptions of the relevant principle held by opposing parties of framers. or requires. And of course. There is nothing essential or necessary in this two pronged constitutional content. Most constitutions regulate two main domains: the basic structure of government with its divisions of political power. 5.7 On the other hand. with few exceptions. those who are entrusted with the authoritative interpretation of the constitution are granted considerable legal power. constitutions vary considerably in this respect as well. most importantly. the establishment and control of the armed forces. It is worth keeping in mind. This is one of the main reasons for the high level of abstraction in which constitutional provisions tend to be formulated. After all. In the first domain we normally find such issues as the division of power between the federal and local authorities. and. They are meant to apply to all spheres of public life. .) 7 A very interesting and suggestive exception is section 33 of the Canadian Charter of Rights and Freedoms which allows the legislature to overrule constitutional decisions of the supreme court (both preemptively or ex post). as long as it is done so very explicitly and renewed every five years. Generality and Abstraction. legislation etc. These five features of written constitutions explain the uniquely problematic nature of constitutional interpretation. Many constitutions contain very specific provisions even in the realm of rights and principles. the less clear it is what the provision actually means. this need for generality and abstraction comes with a price: the more general and abstract the formulation of a constitutional provision.

The most challenging moral question about the legitimacy of constitutions arises precisely because it is not like Ulysses who ties himself to the mast. but this is just a matter of proportion. and there is a separate question about the moral legitimacy of judicial review. Like Ulysses who tied himself to the mast. Elster himself has some doubts about the application of the precommitment idea to constitutions. more or less along the lines of the US constitutional practice: we assume that there is a written constitutional document which is deemed the supreme law of the land. lawyers. for simplicity’s sake. Not every provision of a written constitution is particularly abstract or problematic. without any need for interpretation. Nevertheless. Many constitutional provisions can simply be understood. lobbyists. It is certainly true that there are likely to be many more ‘hard cases’ in constitutional law than in the ordinary business of statutory regulation. and applied. Surely. nor is the whole constitution confined to such high-minded issues as basic rights or important moral or political principles. are also engaged in the interpretation of the constitution and their views may often have a considerable impact on how the constitution is understood in a given society. I mentioned that there are two main normative questions that need to be addressed: Is a written constitution morally legitimate. political activists etc. the constitution is seen as a device of self-imposed commitments and restrictions. PART ONE: MORAL LEGITIMACY 2. I will concentrate on the courts. One note of caution before we proceed. Let me consider these questions in turn. . and how should judges go about in their interpretation of the constitution?8 Both questions are more complex. many other political actors.9 But this Ulysses metaphor is very misleading. There is nothing in the nature of constitutions which would preclude the existence of ‘easy cases’. but rather like a Ulysses 8 It would be a mistake to assume that only judges are in the business of constitutional interpretation. THE MORAL LEGITIMACY OF THE CONSTITUTION Constitutions are often described as pre-commitment devices. guarding against temptations which may lead one off the track in the future. we can now formulate the main questions. Cf Waldron (1999). like legislators. 9 See Jon Elster’s Ulysses Unbound (2000). we assume that it has been enacted (and perhaps subsequently amended) some generations ago. So let us concentrate on a paradigmatic model. The first question is actually twofold: there is a question about the moral legitimacy of the constitution. we assume that there is a supreme court which is entrusted with the legal interpretation of the document and that this legal power includes the power of judicial review. It would be a mistake to assume that there are no ‘easy cases’ in constitutional law.144 Constitutional Interpretation the scope of the power and the paucity of constraints informs the main concerns of constitutional interpretation. assuming that it is the courts’ authoritative interpretation which is the most important one. With this rough outline of the uniqueness of constitutional interpretation.

there are sometimes ‘constitutional moments’. There are several arguments which strive to avoid this inter-generational problem or mitigate it considerably. is hardly a good one. that it ignores the fact that constitutions tend to embody widely shared principles and ideals. that is. though: it has been claimed that in the history of a nation. though I will not try to substantiate those doubts in any detail here. if we think that constitutions are legitimate. They are not deliberately designed to bind future generations to our conceptions of the good and the just. It is true.10 But perhaps it is not necessary. representing. we should be able to explain how it is legitimate to make authoritatively binding decisions on important matters of morality and politics. then the inter-generational question remains: why should one generation have the power to legally bind future generations to its conceptions of the good government and the kind of rights we should have? An answer of the form: we just had the political opportunity to do it. This is an interesting point. It may be objected that this formulation underestimates the significance of ‘We the people’. the intergenerational issue remains: perhaps no one. as it were. The constitution is valid because its content is morally good. The assumption is that the constitution legally enshrines values we would all see as fundamental as well. or else. perhaps we should not attach too much weight to the intergenerational problem. regardless of the ways in which it came into being.The Moral Legitimacy of the Constitution 145 who ties others to the mast with him. But these collective actions and decisions do not purport to have authority over future generations. for better and worse. In other words. The claim 10 There is one argument I would like to mention. At least not deliberately so. of course. when a unique opportunity arises to enshrine in a constitutional document moral principles of great importance. . it could be argued that the moral legitimacy of the constitution simply derives from its moral soundness. even an entire generation. in which case it would be pointless. It is this intention to impose constitutional constraints for the future that is problematic. I think that it leaves the basic question in its place: either the constitutional protection of such values makes no practical difference. it’s just that there is not always the political opportunity to incorporate those values into the law and render the values legally binding. that are supposed to last for generations and difficult to change by ordinary democratic processes. Since this is basically just a matter of unique historical opportunities. should have the power to make important moral decisions for future generations. but from a moral perspective. The enactment of a constitution purports to bind the current and future generations by imposing significant constraints on their ability to make laws and govern their lives according to the ordinary democratic decision making processes. and thus it does not really matter how old the constitution is. Even if at the time of the constitution’s enactment its principles and ideals are really shared across the board. On the other hand. But this would make very little difference. if it does make a difference in being legally authoritative. the inter-generational issue is central to the question about the very legitimacy of constitutions. the nation’s raison d’etat. First. that a great number of our current practices and collective decisions are bound to affect. Even if the constitution is new. Thus the question arises: why should the political leaders of one generation have the power to bind future generations to their conceptions of the good and the right? It is crucial to note that the moral significance of this question is not confined to old constitutions. I doubt that such an argument can be provided. the fortunes of future generations. it purports to bind future generations.

namely. the constitution would be morally legitimate because its actual content is shaped by the pertinent needs and concerns of the community at the time 11 See also Raz (1998: 167). the only reasons for action the constitution provides are the kind of reasons we have anyway. that they are good moral reasons. namely. the legitimacy of the constitution derives from the moral authority of its framers. Validity is dynamic. and this assumption is false. the constitution is legitimate because it had been enacted by people who. As I have mentioned in the previous chapter. But even so. to any constitution one encounters. something that we can attribute to the constitutional document. it could show how the constitutional document does make a practical difference. ascribing to them knowledge and wisdom beyond anything that would be historically warranted. More importantly. which draws not on the moral soundness of the constitution itself. at least relative to us. and the authoritative interpretation at any given time correctly instantiates the values which ought to be upheld in the community. Notably. with a different and even more problematic argument for the legitimacy of constitutions. . But the argument clearly fails. This argument from moral soundness should not be confused. it is very difficult to explain what difference the constitution makes. indeed. this argument cannot apply generally. According to the latter. depending on the current interpretation of the constitution and its application to particular cases. What would be the point of having a written constitution unless the constitutional document makes a normativepractical difference? It can only make such a difference if it constitutes reasons for action. and it is this moral soundness that validates the constitution. According to the argument from moral soundness. however.11 According to the third argument. Thus. because such an argument is bound to rely on a huge mystification of the moral stature of the framers. and for two main reasons.146 Constitutional Interpretation would have to be that the principles concerning the form of government which the constitution prescribes and the rights and values it upholds are just the correct moral values under the present circumstances. regardless of the constitution. As long as the particular content of the constitution is determined by its interpretation. One could say that it misses the point of having a constitution at all. morally sound. Needless to say. It would only apply when it holds true. the argument is problematic. but on the moral expertise of its framers. there are good epistemic and moral reasons to hold that no one can possess expertise in the realm of basic moral principles. It would make a difference because it meets the conditions of the normal justification thesis: by following the constitutional prescriptions we are more likely to follow the correct moral reasons that apply to us than by trying to figure out those reasons for ourselves. if this argument is sound. when it is actually true that the content of the constitution is. are experts in those fields of political morality which are enshrined in the constitution. First. the argument fails because it assumes that there is expertise in morality. But according to the argument under consideration. the moral validity of the constitution is not a static matter. then. according to this argument.

14 12 This idea is usually expressed by the metaphor of the ‘living constitution’. either by solving some problems which were there to be solved. Social conventions are of such a nature. . for example. or else they constitute their own values by creating a conventional practice which is worth engaging in. Similarly. But we have to be more careful here. social cohesion etc. Conventions create reasons for action because they are practiced. beyond the fact that the convention is there and just happens to be followed. The fact that we could have had a different. See. 13 For a much more detailed account of the nature of social conventions see Marmor (2001: chs 1–2). the reasons for action it creates are valid reasons. 14 Constitutions may promote other values as well. let me mention a fourth argument. Raz wishes to claim that as long as the constitution we have is not immoral. Conventions evolve either in order to solve a pre-existing coordination problem.13 Either way. a crucial assumption of this argument must be. there must be something valuable in the practice of following the convention for it to give rise to reasons for action. These uses are determined by the particular interpretations and legal decisions rendered by the court at any given time. the fact that we happen to have it is a good reason to abide by it. It would be a mistake to assume. there is a whole range of practices which gain their moral validity from the fact of the practice itself. perhaps even better convention under the circumstances. I presume.The Moral Legitimacy of the Constitution 147 of interpretation. (1998: 173) As Raz himself points out. According to Raz. this argument. Those goods can often be achieved by other means as well. the fact that the constitution is there and happens to be followed cannot be the whole reason for following it. such as educational values. It must serve some values. or by creating valuable practices worth engaging in. Thus. which I will call the argument from interpretation. I think that Raz recognizes this when he points out that constitutions typically serve the values of stability and continuity of a legal system (1998: 174–75). does not entail that there is anything wrong with following the convention that we do have. Before I consider the merit of the argument from interpretation. The constitution of a country is a legitimate constitution because it is the constitution it has. and as long as the convention is not morally impermissible. Kavanagh (2003). renders the moral validity of the constitution entirely dependent on the particular uses to which it is put. that every type of good promoted by a given institution legitimizes the need to have that institution in the first place. though they certainly depend on it. Our reasons for following a social convention are not entirely derivable from the fact that the convention is practiced. constitutions are selfvalidating in that their validity derives from nothing more than the fact that they are there. [P]ractice-based law is self-vindicating. As long as they remain within the boundaries set by moral principles.12 In other words. that there is enough interpretative flexibility in constitutional documents to allow for the courts to adapt the constitutional prescriptions to current needs and values. however. Similarly. which may be more legitimate or desirable. recently suggested by Joseph Raz.

Namely. both arguments must assume that the written constitution. then the reason for -ing under circumstances Cn is a moral reason. R: ‘All x’s ought to  under circumstances Cn’. such as solution to a coordination problem. or else. either the constitution embodies choices which are morally underdetermined (in one of the two ways mentioned). generally: unless their content is underdetermined by morality. the values and principles enshrined in it must be morally permissible. This goes without saying. when certain choices are made in particular cases. If morality determines the rule. Some moral errors a constitution contains may be outweighed by other values it promotes. To be sure. see Marmor (2001: 25–31). (I am not suggesting that the constitution must be morally perfect. For now.148 Constitutional Interpretation There is another crucial assumption here about which Raz is quite explicit: the conclusion about the self-validating nature of constitutional practice can only follow ‘if morality underdetermines the principles concerning the form of government and the content of individual rights enshrined in constitutions’ (1998: 173). . Roughly. that is. morally correct. For a more detailed account. First. or else. it can be interpreted to make the difference that it should. The same is true about social conventions. But the thesis must be that constitutional documents typically allow enough interpretative flexibility that makes it possible to apply their morally significant provisions in morally sound ways. those would be the kind of choices which are made between incommensurable goods or values. However. actually makes less of a difference than one might have thought. the constitution must be applied in a way which is morally sound. irrespective of the fact that R is practiced. it is pretty clear that both the argument from interpretation and Raz’s argument from self-validity must hold that only morally correct choices are valid. The application of constitutional principles or values can be morally underdetermined in two ways: either they concern issues which are simply not determined by moral considerations. suffice it to point out one important implication of this thesis. the thesis here is not that the constitutional document can be interpreted to mean just about anything we want it to mean. if they do manifest moral choices. It follows from this that both arguments must assume that at least in those areas in which the constitution would make a moral difference. they would be legitimate if they are either morally underdetermined. say. Therefore. The conditions for the legitimacy of a constitution must comprise the following conditions. Let me be more precise. I do not wish to deny the truth of this last assumption. according to the true moral principles that should apply to the particular case. in those cases in which the value choices are morally determinable. as such.) Second. they are not conventional rules. or optimal.15 or else. I will have more to say about it in the last section. that it makes the moral legitimacy of constitutions very 15 This is not to deny that there are cases in which there is a moral duty to solve a coordination problem. I hope that we are now in a position to see that both Raz’s argument and the argument from interpretation share a certain assumption about the nature of constitutions that is crucially important.

If we have a written constitution which is the supreme law of the land. However. it is widely acknowledged that the courts’ power of judicial review is not easily reconcilable with general principles of democracy. even if technically speaking. it cannot be changed by the ordinary processes of democratic legislation. a great deal of the burden of moral legitimacy is shifted by these arguments to the application of the constitution. for most practical purposes. Lawyers sometimes find it difficult to understand why the normative justification of judicial review is separate from the question of the legitimacy of constitutions. it is certainly conceivable to have a legal system with a written constitution without entrusting the power of its authoritative interpretation in the hands of the judiciary or. Therefore. then surely it follows that the courts must determine what the law is and make sure that it is applied to particular cases. . it should be sufficient just to keep this aspect of judicial review in mind. to what we call ‘judicial review’. in the sense that not every constitutional decision is necessarily a review of an act of legislation. without assuming too much about any particular theory of democracy. 3. Therefore. it is also widely acknowledged that the desirability of judicial review is mostly a question of institutional choice: given the fact that we do have a constitution. We just cannot have it in any other way. in fact. technically speaking. For them the reasoning of Marbury v Madison is almost tautological. and I cannot hope to expound here on the necessary elements of a theory of democracy to substantiate this point. secondly. thus assuming that the constitution is legitimate only if the courts are likely to apply the constitution in a morally desirable way. in the hands of anybody in particular. the distinction is not morally/politically significant. which is the most suitable institution that should be assigned the role of interpreting it and applying it to particular cases? Finally. namely. or some other legal issue that may be affected by the constitution. First. 17 See Waldron (1999). THE LEGITIMACY OF JUDICIAL REVIEW Three points about judicial review are widely acknowledged.The Legitimacy of Judicial Review 149 much dependent on the practices of their interpretation. acknowledge the existence of at least a tension between our commitment to democratic decision procedures and the courts’ power to overrule decisions made by a democratically elected legislature. The power of the courts to impose their interpretation of the constitution on the 16 It should be acknowledged that not every legal decision of the court about the interpretation of the constitution amounts. that it is not a necessary feature of a constitutional regime. In other words. the question about the legitimacy of judicial review.17 For our purposes. not every constitutional decision is an exercise of judicial review. it should be kept in mind that the practical effect of such constitutional decisions is basically the same: once rendered by the supreme (or constitutional) court. Even those who support the legitimacy of judicial review. This brings us to the second question about the legitimacy of constitutions. It may simply be a review of an administrative decision. As I have already mentioned.16 This is a very complicated issue.

18 The argument must be premised on the further assumption that the court is the most suitable institution to carry out this task of constitutional interpretation. moral and ethical in nature. constitutional provisions prevail over ordinary legislation. But why should that be the case? One consideration which is often offered as a reply consists in the thesis that the constitution is a legal document and that therefore its interpretation is a legal matter. The appropriate remedy could be much less drastic. the fact that deliberation in a courtroom is argumentative. Since courts tend to possess legal expertise. such a pretence is not necessarily conducive to sound moral deliberation. the requirement to justify decisions by reasoned opinions which are made public. . 18 In fact there is another mistake here: even if the courts are assigned the role of constitutional interpretation. so the argument goes. eg a declaratory judgment. therefore. and it is also true that there must be some institution which has the power to determine. or any other institution in particular. there is a constant pressure on judges faced with decisions in ‘hard cases’ to present their reasoning in legal language even if the decision is not based on legal reasons in any meaningful sense. This question is not easy to answer. or shaping the limits of political authorities and the structure of democratic processes. 19 I do not wish to claim that all constitutional decisions are primarily concerned with moral issues. in which case. one of the crucial questions here is whether the supreme court is the kind of institution which is conducive to sound moral deliberation and decision making on moral issues. such as determining the nature and scope of basic human and civil rights. having certain characteristics which are conducive to moral deliberation. often the issue is one of bureaucratic efficiency or such. some constitutional decisions concern the structural aspects of government. That is so. courts do have certain institutional advantages in this respect. Partly. courts are also under considerable pressure to conceal the true nature of the debate. that it is open to arguments from opposing sides. because the kind of issues decided in constitutional cases are.150 Constitutional Interpretation legislature simply follows. But also because there are conflicting considerations here. mostly. it does not follow that constitutional decisions are based on legal reasoning requiring legal expertise. But of course this is a non sequitur. (For example. casting it in legal language and justifying their decisions in legal terms. it simply does not follow that this institution must be the supreme court.19 Therefore.) On the other hand. it does not necessarily follow that they should have the legal power to invalidate an act of legislation which is unconstitutional. from the fact that the constitution is legally supreme to ordinary legislation. even if the choices are straightforwardly moral or political in nature. or there could be no remedy at all. in concrete cases. and that its interpretation is. a legal matter. As we have noted in previous chapters. and so forth. On the one hand. Although perfectly rational from the judiciary’s perspective. The problem with this argument is that it relies on a dubious inference: from the fact that the constitution is a legal document. because it is a matter of culture that may vary from place to place. Even if it is true that as a matter of law. Most constitutional decisions are based on moral and political considerations. they are the best kind of institution to be entrusted with constitutional interpretation. whether such a conflict exists or not.

the question arises: Why do we need this intermediary step cast in the form ‘a right’? 20 21 22 For a recent defense of this argument. See Raz (1986: ch 7) . however. Those who favor the courts’ power of judicial review often rely on an argument which is less concerned with the nature of the institution. it is just an intermediary step in a moral argument leading from the values of certain human interests. I will assume that the most plausible account of the nature of rights is the interest theory of rights. Admittedly. 3. Precisely because the supreme court is not an ordinary democratic institution. those duties which would be required and warranted to secure A’s interest in . rights are actually intermediary conclusions in arguments which begin with the evaluation of interests and end with conclusions about duties which should be imposed on other people. Basically. we would say that A has a right to  if an aspect of A’s well being. I have presented the argument which follows in the next few paragraphs in Marmor (1997). the reasoning which supports the institution of judicial review is as follows: 1. as far as possible. in fact. which I will call the argument from consensus.21 In what follows. then it would not only justify the institutional choice of the court in deciding constitutional issues.22 According to this analysis. it is relatively free of political pressures and shortsighted populist temptations.The Legitimacy of Judicial Review 151 There is a much more important issue here. Explaining this point requires a small detour. We could say that judicial review is anti-democratic only on its surface.20 I think that this argument fails. it secures the protection of those rights and principles which are actually held by the vast majority of the people. If its assumptions are sound. When we say that A has a right to . and more with the nature of the decisions in constitutional cases. we are likely to secure. justifies the imposition of duties on others. we say that A’s interest in  justifies the imposition of duties on others in respect to that interest. From a strictly analytical point of view. And it fails mostly because it is based on a misconception of the nature of rights and the role of rights discourse in a pluralistic society. at a deeper level. an interest of A. to conclusions about the need to impose certain duties. 2. but would also go a considerable way in mitigating the anti-democratic nature of judicial review. by entrusting the power of judicial review with the supreme court. from shortsighted political temptations. in a sense. According to this line of thought. The constitutional entrenchment of these rights is required in order to protect them from the vagaries of momentary political pressures. there is a great deal to be said in favor of this argument. Therefore. Cf Alexander (2003). the concept of a right is. Therefore. that is. exploring some crucial aspects of the nature of rights. according to this analysis. reflecting a deep level of moral consensus. the protection of those rights and principles which are. The rights and principles entrenched in the constitution are those which are widely shared in the community. 4. widely shared in the community. see Harel (2003). redundant.

of course. It is. But having a right to do something does not entail that one has a reason to do it. The proposition: ‘A has duty to ’ entails that A has a reason to . I am not suggesting that people with conflicting conceptions of the good and of ultimate values cannot agree on some duties we should all have. a much more important reason: intermediary steps. Thus. in spite of considerable disagreement about the grounds of those intermediary conclusions. and consequently of the various duties people have. namely. or the duty to respect others. that rights discourse is much . Furthermore. In other words. But it is very often the case that people agree on the existence of a given right even if they actually disagree on the nature and scope of the duties which the rights justifies. however. as rights do not entail immediate reasons for action. people can settle on the recognition of rights. it is often the case that practical arguments proceed through the mediation of intermediary steps. in spite of deep controversies regarding the grounds of those rights (and their ramifications). the intermediary nature of rights discourse which is quintessential. 24 Unless. like the duty not to cause unnecessary suffering. (Your right to freedom of speech. does not give you any reasons to say something. My point is relative: that it is easier to agree on a list of relatively specific rights than duties. I think that we are quite familiar with this phenomenon. in pluralistic societies. however. such as rights. Hence it is not surprising or accidental that in homogeneous societies there is very little rights discourse. namely. True. Societies where different groups of people are deeply divided about their conceptions of the good. it is crucial to realize that there is an important asymmetry between rights and duties. that it simply saves time and energy. precisely because of their intermediary nature. and they do not need this intermediary step from ultimate values to duties. for instance. It explains why rights discourse is particularly fit for pluralistic societies. Only in those societies where people do not share a common understanding of ultimate values. need to settle on a set of rights they can all acknowledge. that rights discourse is prevalent. But not a particularly fancy one. since there is no immediate relation of entailment between rights and reasons for action. despite the fact that they would deeply disagree about the reasons for having those rights. Rights. such societies normally share a common understanding of ultimate values.) This analytical point is very important: it explains why people with different and competing sets of fundamental values are bound to disagree about the duties they have.24 But this need not be the case with rights. Rights discourse enables a common culture to be formed around some intermediary conclusions. I do not intend to suggest that Raz would agree (or not) with the main thesis that I advocate here in the next few paragraphs. do not entail that the right-holder has any particular reasons for action. simply because there is no need to begin each and every practical argument from first premises. this last point is actually a piece of armchair sociology. the duties in question are very abstract. that would be too tedious.25 23 See Raz (1986: 181). enable us to settle on a set of shared intermediary conclusions. There is. there is an indirect relation of entailment: rights justify the imposition of duties on others. unlike duties. it is normally easier for people with different conceptions of the good to agree on a shared set of rights than duties. 25 Admittedly.152 Constitutional Interpretation Joseph Raz gave two answers23: One partial answer might be.

At this point the interlocutor is likely to ask: but what is the alternative? If we do not entrust the resolution of such conflicts in the hands of the court. and their relative weight in competition with other rights or values. to the extent that it exists. though not universally so.26 If this account of the nature of rights discourse is basically correct.The Legitimacy of Judicial Review 153 But this social function of rights discourse also points to its own limits. In order to determine in a reasoned manner the limits of a given right. they are more tentative in two senses: First. I do not intend the explanation to be exhaustive. that we can leave the resolution of such evaluative and ideological conflicts to the ordinary legislative and other democratic decision making processes. more often than not we will discover that there was never an agreement there to begin with. there is bound to be disagreement over the boundaries of those rights and their desirable ramifications. As a matter of fact. they are democratic. is very abstract and quite unlikely to have significant bearing on constitutional interpretation. it is mostly because there is little agreement on anything else. is bound to be a controversial matter. or between rights and other values. not less importantly. But this deeper level of tacit consensus. legislative decisions tend to be much more tentative than constitutional decisions of a supreme court. The intermediary nature of rights discourse explains why determining the limits of rights. It is true that in pluralistic societies we do tend to agree on the rights enshrined in the bill of rights. It is quite likely that there are other explanations for this difference. It fails because it relies on a widespread consensus which is illusory. perhaps. If rights discourse is prevalent in a given society. but it is typically in such cases that rights have relatively little cultural and political significance. . of course. In fact. Those who have lost their case today may still gain the upper hand more prevalent in pluralistic societies than in homogenous ones. Since it is conflict between rights. or its relative weight in a situation of conflict. we are bound to discover that there is not going to be any consensual basis on which such conflicts can be resolved. that gets litigated in the constitutional cases. in particular. and it is precisely at this point that agreement breaks down. In other words. And. besides the one I offer here. how else are we going to resolve them? The answer is. But at least they have two advantages: for whatever its worth. that the prevalence of rights discourse in a given society does reflect a deeper level of consensus about the acceptance of pluralism and perhaps even individualism. 26 It is probably true. Widespread consensus on how to resolve various conflicts between rights. Not because they are more likely to be morally sound than the decisions of courts. is only possible in the framework of a shared culture of moral and political views. but this is a very tenuous agreement which breaks down as soon as a conflict comes to the surface. precisely because of those reasons which explain the widespread consensus on the rights we have. then it should become clear why the argument from consensus is bound to fail. one would naturally need to go back to the reasons for having the right in the first place. on the ultimate values people cherish. legislative decisions on morally or ideologically controversial issues do not tend to last for too long. or rights and other values.

It would be a mistake to assume. need not make this obvious mistake. Waldron claims. version of rights-instrumentalism is that the assumptions it relies upon are just as controversial as the moral issues underlying rights discourse (1999: 253). judges are more likely to get them right. is rather skeptical about this instrumental argument. or at least. democratic decisions also tend to convey a more tentative kind of message than constitutional decisions of a supreme court. After 27 There is one important exception: some countries may have a persistent minority group which is unlikely to have its interests protected by an ordinary majoritarian decision making process. or at least. he claims. which I deeply regret. more plausible. more frequently right than any other institution. declaring a timeless moral truth. When the court decides a constitutional issue. they are of such a nature that legislatures are bound to get them wrong. 28 I heard this last argument in a lecture by Bernard Williams which he gave at Columbia Law School a few years ago. As far as I could ascertain. much depends on how the courts are actually perceived by the public. the democratic legislative assembly? Supporters of judicial review think that there are plenty of such reasons. would do a better job in protecting them. or the legislature. However. But this is wrong. Even in the absence of knowledge or consensus about rights. or they may be systematically biased about such issues.154 Constitutional Interpretation tomorrow. it should be admitted that the observation underlying this argument is at least partly culture dependent.27 Secondly. it tells the losing party not more than that it simply lost this time. and then it is only an instrumental issue whether the courts. Williams has never published his lecture. however. courts would do a better job in protecting our rights than. But this is not a convincing reply. such a message conveys to the losing party that it has got its profound moral principles wrong. the desirability of judicial review is a matter of institutional choice. that the only way to protect the interests of persistent minorities is by constitutional entrenchment of their rights. one major consideration must concern the likelihood that a supreme court will get the moral decisions right. there may be reasons to assume that some institutions are more likely to go right (or wrong) about such issues than others. whereas the whole point of the objection to judicial review was that rights are just as controversial as any other political issue (1999: 252–53). political actors in the majority to take into account the interests of the minority) may be more efficient. This right-instrumentalism. it decides it in a sort of timeless fashion. Often a more sophisticated democratic process (forcing. Perhaps legislative assemblies do not have the appropriate incentives to even try to protect our rights. for example. say. faces the difficulty of taking for granted that we know what rights we should have. Are there any reasons to believe that from an instrumental perspective. and so forth. It does not necessarily convey the message that the loser is morally wrong. They can maintain that whatever our rights and their limits ought to be. a democratic decision does not convey such a message. and to what extent. and a great many factors which figure in such a complex consideration are empirical in nature. As opposed to this. however. or at odds with the basic moral values cherished by the rest of the community. Ultimately. because it assumes that we already possess the truth about rights. Waldron’s reply to this. Surely. as it were. Jeremy Waldron (1999).28 To be sure. . however. none of this is meant to be conclusive. and may win at another. Supporters of judicial review.

Perhaps legislative assemblies are not so diverse and progressive as Waldron depicts in his Law and Disagreement (1999). would not be a morally legitimate interpretation. The normative element pertains to the conditions of legitimacy of constitutional interpretation: It maintains that an interpretation of the constitution which would not be faithful to the ways in which the constitution was originally understood by those who enacted it. how should it proceed. Nevertheless. and most importantly. typically lagging behind progressive movements in society. namely. or at least be faithful to. for about two decades) is such a remarkable exception. Admittedly. . including legislative assemblies. and that their views on what the constitution means are sufficiently clear and discernable to allow for the kind of interpretative guidance that is needed to determine (at least some not insignificant number of) constitutional cases facing the supreme 29 Yes. some of which are actually at odds with each other. This normative thesis. must be premised on the complex factual assumption that we can have a fairly sound conception of who the framers of the constitution are. ANY SENSIBLE ORIGINALISM? The widespread attraction of ‘originalism’ is one of the main puzzles about theories of constitutional interpretation. It is certainly arguable that courts are essentially conservative institutions. perhaps. ‘originalism’ is not the title of one particular theory of constitutional interpretation but rather the name of a family of diverse ideas. Neither the long history of judicial review in the US. constrained by the lack of any real political power which tends to limit severely their incentive and confidence in making progressive social changes. PART TWO: INTERPRETATION 4. The Warren Court is a famous exception in the US supreme court’s history. the understanding of the constitutional provisions which can be historically attributed to its framers. and seems to be here to stay.Any Sensible Originalism? 155 all. nor the institutional character of the courts. and perhaps he could show that rights-instrumentalism may actually fail on its own terms. but he is certainly right to question whether courts are necessarily better suited to protect our rights. of course there are exceptions. it should be recalled.29 severely circumscribed by adversary procedures. I will move on to consider the second main issue about constitutional interpretation. however. since judicial review is the constitutional practice in most contemporary democracies. the underlying theme. In any case. is clear enough: Originalists claim that the interpretation of the constitution should seek to effectuate. how can we design political institutions. but it is precisely the point of it: the progressive agenda of the Warren Court (which only lasted. necessarily lend credence to the supporters of judicial review. due to which it is warranted to subsume such diverse views under one title. unless we possess considerable knowledge about institutional constraints and the likely consequences of various institutional structures? Waldron should have confronted the institutional issue more directly. Such a general thesis must comprise both a normative and a descriptive element.

imposed on an entire nation for generations to come? Unless originalists can provide a moral justification for granting such a vast and lasting power on any particular person. The main problem with originalism is a moral one: Why should the framers of a constitution. The idea that the framers’ views should inform constitutional interpretation can either be derived from the assumption that the framers somehow had known better what ought to be done. as it were.156 Constitutional Interpretation court. let me consider the second kind of argument.31 Since I have already mentioned the doubts we should have about the idea that the framers can be regarded as moral experts. because one can think of countless other ways in which judges could decide cases. Any alternative to originalism. Consider the factual assumptions first. their case for originalism cannot be substantiated. for example. indeed. or that it is free of bias and ideological prejudices. or else it must be based on the idea that any conceivable alternative is even worse. There are so many reasons to doubt both of these assumptions that it is quite a mystery why originalism still has the scholarly (and judicial) support that it does. and their eventual impact on its result. at best. much more objective than this one. it is commonly the case that a very large number of political actors are involved in the process of creating (or amending) the constitution.30 How likely is it that such a loose group of political actors would actually share a reasonably coherent moral and political philosophy underlying the various constitutional provisions? Or. on the basis of their own moral 30 The problem of identifying the ‘framers’ is exacerbated in those cases in which there is an elaborate ratification process of the constitution. is just too naïve to be taken seriously. And the problem is that there are only two kinds of argument one can offer here. the assumption that the interpretation of history is somehow objective or free of evaluative considerations. less legitimate. there is a third argument which is often mentioned: originalists sometimes rest their case on the claim that the historical truths about framers’ intentions are objective and thus allow an objective constraint on judicial discretion in constitutional cases. sometimes they are enacted as a result of a revolution or a civil war striving to stabilize and legalize the new constitutional order. In spite of this historical diversity. But this is puzzling. so this argument runs. at best. Thus the term ‘the framers of the constitution’ usually refers to a very loose concatenation of a fairly large number of people and institutions. and both of them are bound to fail. and it is typically the case that our knowledge of their precise roles in the process. . 31 In fact. at other times as result of a secession (which may be more or less orderly). or group persons. or anyone for that matter. playing different legal and political roles in the constitution’s enactment. There are numerous ways in which constitutions come into being. have the tremendous power of having their moral and political views about what constitutes good government and the nature of our basic rights. often generations later? But such factual doubts should be the least of our worries. they could toss a coin. and sometimes as a result of a legal reform that takes place within a well functioning legal system and according to its prescribed legal authority. is very partial. Secondly. that they should be considered as moral experts. would involve the power of the judges of the supreme court to determine. First. that they would have any particular views about most of the constitutional issues which will come before the courts.

and so forth. Framing this in terms of the intentions of the framers. and that would be illegitimate for various reasons. because the supreme court is not a democratic institution. they would have to admit that the older the constitution. to make the argument at least initially plausible. Although not phrased in terms of this distinction between application and further intentions. it must be confined to the framers’ further intentions. Now. and so forth. let us suppose that we do know who the framers of the constitution are. History should be consulted. and suppose further that we can be confident that we know everything that there is to know about their purposes. Even if we have no reason to speculate about the framers’ thoughts and expectations with respect to the ways in which the relevant constitutional provisions should be applied to particular cases. Just as it makes no sense to bind the constitutional interpretation to application intentions of ‘old’ framers. this is basically the view about constitutional interpretation which Dworkin advocates. so this argument runs. the less it would make sense to defer to the framers’ application intentions. Dworkin claims. It must assume that an original understanding of the constitution is actually capable of constraining. But if we think about this in a principled way. Goldsworthy (2003: 177) . what the constitution actually means in controversial cases. the possible interpretations of the constitutional document. it does not necessarily reflect the wish of the people. indeed. let us follow the main distinction introduced in the previous chapter and divide the relevant intentions of the framers into those which constitute their further intentions and those which constitute their application intentions.Any Sensible Originalism? 157 views. it is not accountable to the people. because they could not have predicted the kind of concerns we face today. they would simply impose their own moral and political views on us. at the very least. and it contends that such a constraint is. we do have reasons to understand and respect the general purposes that the framers’ had had in enacting the constitutional provision which they did. Or. Let me concentrate on the moral issue. at least to some extent. Thus. most originalists would readily admit that deference to the framers’ application intentions is very problematic. For example. intentions. the assumption is that unless judges are required to defer to the ‘original’ understanding of the constitution. if originalism is to make any sense at all.32 Surely it makes no sense to rely on the views of people who lived generations ago about things they were completely unfamiliar with and could not have possibly imagined to exit. In other words. morally desirable. it would make no sense to bind any constitutional interpretation for the future by the application intentions of framers in our generation. Thus. for example. We must try to understand the ‘very general 32 See. we must acknowledge that this conclusion cannot be confined to particularly old constitutions. it should be noted that this argument rests on two limbs. in order to understand what is the general moral or political principle that the framers had sought to enact in the constitution. Once again.

The latter should be left to the supreme court to figure out according to its best moral reasoning. and the moral authority of the constitution’s framers is one of them. that the framers had had. But as soon as we begin to think about this question. must begin with certain views about the values which are inherent in the genre to which the text is taken to belong. however noble and admirable. I could hardly explain why should we pay attention to this aspect of the novel rather than to any other. Once we discard any assumption about the framers’ superior knowledge about matters of moral and political principle. Dworkin (1986: 60–61) rightly claimed. for example. or anything else for that matter. not much remains to justify their particular role in legitimizing the constitutional framework that we have. The legitimacy of a constitution must reside in the solution it offers to the problems we face. The main problem with this argument is. particularly when we take into account the fact that it is supposed to last for generations (and is typically guaranteed to do so by the constitution’s rigidity). including in the constitutional context. the more acute the problem of moral legitimacy becomes. what is it that makes a constitutional regime worthy of our appreciation and respect.158 Constitutional Interpretation principle. not any concrete application of it’ (1996: 9). But then the same principle should apply to legal interpretation. Before we decide to consult history. This is a very considerable power that is not easy to justify. And it is advisable to keep in mind that the . or even that we can have satisfactory answers to it. could have very little to do with the moral or political purposes of its framers. however. Any interpretation. it is one of the main concerns about the legitimacy of constitutions that by following a constitution as the supreme law of the land. we in effect grant the framers of the constitution legal authority which exceeds the authority of our elected representatives to enact laws according to respectful democratic processes. as we should. Otherwise. If I purport to offer an interpretation of a certain novel. not in the purposes. Dworkin is absolutely right about this. As we have noted above. we must rely on the correct views about what makes constitutions good or bad. In the constitutional case. Whatever it is that makes constitutions good and worthy of our respect. I do not intend to suggest that an answer to the general question of what makes constitutions valuable is easy to answer. that it actually ignores Dworkin’s own best insight about the nature of interpretation. As we have noted earlier. A certain view about what makes instances of a given genre good or bad must inform any interpretation of a text within that genre. I must first have some views about the kind of values which make novels good and worthy of our appreciation. we cannot even begin to interpret the particular text in hand. Unless we know what it is that makes texts in that particular genre better or worse. the appeal of the framers intentions dissipates even before it takes any particular shape. or intentions. But at least we know some of the problems. we must first form our views about the kind of values which are inherent in the relevant genre. Thus the more we tie our deference to the constitution to the framers’ particular role in its enactment. the role of the framers in the enactment of a constitution is one of the most problematic aspects of the legitimacy of a constitutional regime.

or incommensurably good (or bad). it should be kept in mind that if originalism does not make any moral sense. equally. Either way. but did not enact in the constitutional provision. But this is not a coherent argument: either the issue is an historical one. it cannot be solved by striving to curtail the discretion of the court by means which are morally groundless. but cf 1985: 49) seems to have suggested that the only relevant evidence of the framers’ intentions in such cases is a linguistic one: the very abstract formulation of the pertinent constitutional provision attests to the further intention of the framers’ to enact the abstract principle as such. ‘that the framers of the Fourteenth Amendment did not mean to lay down only so weak a principle as that one . as general or abstract as they may be. and not only some weaker principle of formal equality before the law. a very narrow principle of a formal equality before the law. one of Dworkin’s own favorite cases: suppose that the question is whether the equal protection clause of the 14th amendment of the US Constitution rules out school segregation or not. So what is the alternative? Perhaps this one: that the courts should strive to interpret the constitution according to their best possible understanding of the moral/political issues involved. originalism cannot be derived from textualism.Any Sensible Originalism? 159 framers of a constitution could also have had purposes and intentions which are not so noble and admirable. striving to reach the best possible moral decision under the current circumstances. I will get to this in a moment. I do not mean to suggest that there is always. one decision which is the best. Dworkin claims. To be sure. But it is just puzzling how Dworkin ignores the possibility of the opposite historical verdict here: What if it really turned out that history was decisive in supporting the opposite conclusion? Suppose that it really was the case that the framers had in mind only. Even if there is a problem of moral legitimacy with the supreme court’s decisions on constitutional issues. ‘History seems decisive’. and exclusively. it is not an argument which refers to historical truths. the poor fate of its alternatives cannot provide it with any credentials either. . Dworkin contents that this question should not be determined according to the application intentions of the framers. To put it briefly. it should make no difference. Dworkin writes. and not any specific principle which they may have hoped to achieve. in which case it is very unclear why should we speak about the framers here at all. in which case no evidence can be excluded. The point is that in constitutional interpretation on matters of 33 In some of his writings Dworkin (1977: 134. Then we shall see that it must be a very general moral principle of excluding any form of unjustified discrimination. we should consider the kind of general principle which the framers intended by the phrase ‘equal protection of the laws’. we probably know well enough that the framers of the 14th amendment would not have thought that it rules out anything like school segregation. Instead. Consider. I began this last discussion by suggesting that originalism is at least partly motivated by the fear of its alternative. . There may be several conceivable decisions. in fact. and not anything as general as an anti-discrimination principle of equality. for example. However.’ (1996: 9).33 Should that force us to the conclusion that Brown v Board of Education was wrongly decided? Or should it even mean that there is any consideration worth mentioning that counts against the moral legitimacy of Brown? We are just left to wonder why should we ever care about framers’ purposes. . or even most of the time. or else.

with respect to the kinds of moral argument which are legitimate and the boundaries of such interpretative reasoning. the courts are entrusted with the legal power to interpret the constitution and sound moral reasoning is the only tool at their disposal.34 This is a legal power. 5. the effect of the moral language and moral subject matter of constitutional clauses is to confer on the court a type of directed power. only those which are really cruel. and therefore. not an argument. we must consider a few more alternatives and modifications. and not. the question of ‘enumerated rights’. actually to change it. which they are duty bound to exercise. For better or worse. When the law grants a certain legal power to an agent. however. invalid. This is one sense in which the power to interpret the constitution and. and the question of whether there is a distinction between conserving and innovative interpretations. Not any kind of consideration would justify invalidating certain penal practices. Note. as I will argue below.160 Constitutional Interpretation moral or political principle. of course. However. More precisely. for example. This is only a conclusion at this stage. since it limits the kind of purposes judges should take into account and the kind of reasons they can rely upon to justify their decision. there is no substitute to sound moral reasoning. enshrining moral and political principles and individual or group rights. and it is constrained by certain prescribed aims and reasons. When the constitution prescribes. economic efficiency or budgetary concerns. On the one hand. that this power is constrained in another crucial sense. 5. I will consider three such controversies: the question of whether judges should rely on the conventional conceptions of morality. Before it can be substantiated. . however. Controversies are abound. The claim that judges have directed power to rely on moral arguments in their interpretation of constitutional clauses is not news. mostly judges and other officials. is directed. it typically leaves it entirely to the choice of the agent whether to exercise the power or not.1 Conventional Morality? It is difficult to deny that our constitutional regime has trapped us in a very uncomfortable situation. say. ALTERNATIVE METHODS? What is the legal authority of the court to rely on moral arguments in constitutional interpretation? The simple answer is that the constitution is phrased in moral terms. And since cruelty is a moral concept. it actually imposes a duty on the supreme court to determine what kinds of punishment are cruel and unusual. it is clear that constitutional cases 34 See Raz (1994: ch 10) and Marmor (2001: 67–68). and it is directed in two respects: It is the kind of power that the courts ought to exercise. the reasons for such a decision must be moral ones. however. that ‘cruel and unusual punishment’ should be invalidated. the law frequently grants certain powers to various agents.

For example. it must be because we think that those values are unlikely to be shared enough. Values that are widely shared do not require constitutional protection. Recently. To begin with. it is not a real option. It is typically the case that only at a very superficial level we can all agree that a certain right should be protected. Understandably. more often than not. we are bound to feel very uneasy about the courts’ power to impose its moral views on the nation without any significant political accountability. Secondly. So there seems to be an easy way out of the dilemma: as long as judges are confined to rely on conventional moral values. 2002).Alternative Methods? 161 involve decisions of profound moral importance and judges who are entrusted with the interpretation of the constitution must make decisions on very important issues of moral principle. Similarly. that is. Nor can we assume that controversies are only at the surface and that there is bound to be greater consensus at a deeper level. and more importantly. quite the opposite is true. As I have already argued in section 3. but when we begin to think about the deeper reasons for such normative conclusions we will soon realize that the disagreements are rather profound. In a great number of cases which get litigated at the constitutional level. I am often told by my colleagues that it is impossible to change the current interpretation of the second amendment’s so called ‘right to bear arms’ because it reflects widely shared popular beliefs. almost impossible to change by regular democratic processes. those values which are widely shared by the entire community. there is no widely shared view that can settle the interpretative question. even if they happen to believe that such moral views are mistaken and not critically defensible. practically speaking. it is tempting to seek ways to mitigate such concerns. Such cases tend to be litigated precisely because there is a widespread moral controversy and various segments of the population hold opposing views on the matter. however. the idea that constitutional interpretation should be grounded on those values which happen to be widely shared in the community would undermine one of the basic rationales for having a constitution in the first place. It is precisely because we fear the temptation of encroachment of certain values by popular sentiment that we remove their protection from ordinary democratic 35 This is not an idle method invented by scholars only to be refuted in their articles. Now. the court justified its decision to change its views on the constitutionality of the execution of retarded persons by appealing to changes in the popular sentiment. See Atkins v Virginia (536 US 304. . their decisions would not disrupt the democratic nature of the regime and thus we mitigate the problem of lack of accountability. as to allow their implementation without such constitutional protection.35 This is not a very good idea. But once we realize that the court’s decisions in constitutional cases are. and for several reasons. so to speak. it is often claimed that the US supreme court’s decision to legalize capital punishment is justified because it gives effect to the views held by the vast majority of Americans. there seems to be an obvious consideration which presents itself: judges should interpret the constitution on the basis of those moral and ethical values which are widely shared in the community. Many constitutional decisions are actually justified by such a reasoning. If we have a good reason to enshrine certain values in a constitution and thus remove their protection from the ordinary democratic decision making processes. then.

. also point to the limits of innovation that courts can pursue. 39 See Marmor (2001: 160–68). Much depends on specific legislative procedures. where no particular preference is supported by any general reasons. and Democracy’ (forthcoming in Ratio Juris). however. Much depends on social context and a great many social variables that we can only hope to guess right. it may be advisable to postpone constitutional change until a time when it would be better received and easier to implement. A typical case I have in mind concerns the phenomenon of moral change. and various institutional constraints. to the extent that there is such a sound reason. however. Without holding such a view on the limits of conventional morality. But these are rare occasions. But the fragility of this implementation process. hitherto unnoticed. in such cases it makes sense to maintain that the preferences of the majority should prevail. it may happen. In some cases there may be good moral reasons to take into account conventional morality. Or things can lose their value when we come to realize that they are no longer valuable. and contrary conclusion is certainly warranted in some cases.162 Constitutional Interpretation processes. the democratic legislature is the kind of institution which is bound to be sensitive to popular sentiment and widely shared views in the community. all things considered. the Brown case is such a counter example. are prominent examples that come to one’s mind in this context. See. Racial equality. There is a sense. this is a sound reason for constitutional protection of rights and principles. These are usually cases in which we must make choices about preferences of taste. And then we must think that even if a moral view is widely shared. It is difficult to generalize here. People differ in their capacities to adapt and internalize the need for change. and its tremendous cost. concerns those political choices in which the right decision is simply the one which is actually preferred by the majority.36 After all. 37 Perhaps this argument could also be used to reach the conclusion that democratic legislative assemblies are not to be trusted with the protection of constitutional rights. it must assume this point. attest to it. Two people may share a certain value but differ in the ways in which they apply the value they share to particular cases. that lasted for decades. This is not a rule. Garrett and Vermeule (2001). Equality. and the difficulties of implementing it.38 New values are sometimes discovered. But if most people are not yet there. All I am saying is that. Shared values do not necessarily entail shared judgments on particular cases.37 None of this means that the courts should ignore conventional morality altogether. just because they are the majority. constitutionalism makes no sense.39 Such changes in evaluative judgments tend to involve a transitional period and such transition tends to be more difficult for some than for others. Arguably. if it is the case that new values have not yet taken root in most of the population. as it often does. 38 Another example. 36 I am not claiming here that. in which the argument should be more nuanced. for example. that the individuals who occupy the supreme court realize the need for change and would have good reasons to implement it. and more recently. We may come to realize new values of things or actions. it is because we assume that ordinary legislation is all too sensitive to popular sentiment and widely shared views. I have elaborated on this type of decision in my ‘Authority. or invented. Thus. We do not need the constitutional courts to do more of the same. which is rarely relevant in constitutional cases. If we need constitutional protection at all. it can still be mistaken and that it would be wrong to implement it. even if the latter is partly mistaken. This might be too quick a move. gender equality.

2 Enumerated Rights? The phenomenon of moral change raises another important concern in constitutional interpretation. this argument assumes. The value of human dignity is broad and flexible enough to encompass a considerable range of rights and values thus allowing the German Constitutional Court a considerable amount of innovation. social and moral pressure may build up to recognize a new basic right. in a series of important and rather controversial decisions. Privacy is not mentioned in the constitution. Under such circumstances. there is likely to be an expectation. the court recognized the right to privacy as a constitutional right. un-enumerated in the constitution. and should not. This is the easier case: If a given right can be derived from those rights and values which are listed in the constitution. there is a great deal to be said in favor of the conclusion that the courts should draw the correct moral inference and recognize the right in question.41 Should then the courts simply incorporate the new right by their own innovation. Sometimes the constitutional document does not mention a specific right. have. See: Griswold v Connecticut (381 US 479. particularly if the constitution is very rigid. Introducing any change in the constitution. the constitution is not particularly rigid and constitutional amendments are more frequent. In some countries. The main difficulty concerns the second type of case. more recently. Very few constitutions explicitly grant to the supreme court the power to invent new constitutional rights as need arises. 1965). 41 A good example is the right to privacy in the US constitution. there may be a greater amount of tolerance in allowing the courts to innovate and extend the constitution as need arises. and social change brings with it new concerns and new values. Constitutions tend to contain a specific list of individual (and. a need to recognize and enforce such a right became apparent. not enumerated in the constitutional document. which is a legal power that the courts do not. No other stance would be morally consistent. is exclusively within the domain of constitutional amendments 40 Some lists of rights are more open ended and allow the courts to incorporate rights on the basis of new interpretations of existing rights.40 But when the constitution is relatively old. and perhaps a justified one. There are two possible cases. but as the court realized during the mid to late 1960s. where no such derivation is possible. . Katz v United States (389 US 347 (1967) and others. amounts to changing the constitution itself. A good example is Article I of the German Basic Law which states that the right to human dignity is inviolable. it seems natural to claim that a recognition of a new right. that new rights should be recognized only through the formal amendment process. In these latter type of cases. In other places. Consequently.Alternative Methods? 163 5. certain group) rights. It also pertains to the nature of legal interpretation and the morality of constitutional law. But the question is not only a social-political one. mandating the court to enforce those rights and not others. but it can be derived by a moral inference from those rights and values which the constitution does mention. and there is certainly no right to privacy enumerated there. cases in which it cannot be claimed that the new right in question is simply deducible from those which are already recognized in the constitution. or just wait for a formal constitutional amendment? An answer to this question partly depends on the specific legal and political culture.

competent users just hear or read something. and hence it would make no sense to claim that judges do not have the power to change the constitution. Thus. including such as what we value in the text. Goldsworthy (2003). a point may be reached where the distinction between the original meaning of the 42 43 See. which is not. and not something that the courts should do within their power of rendering constitutional decisions. at least in one clear sense. The text. we should say. you strive to bring out a certain aspect of the text which could not have been grasped simply by. This does not amount to an interpretation of the expression. Interpretation. Interpretation comes into the picture only when there is something that is not clear. for example. by its very nature. First. but then again. eg ‘this is not what x means’. to the ways in which the text is grasped. or would it be more accurate to say that it changes only our understanding of it? (‘Understanding’ here should be taken in a very broad sense. and thereby understand what the expression means. but under closer scrutiny. at best. when we have a long series of successive interpretations of a given text. under the pertinent circumstances. its interpretation changes only what we make of it. and their change. or ‘this is not what I meant’ or such. of course. previously unrecognized. and generally quite right to say that it is the latter. or the possible uses to which it is put. interpretation always adds something. or desirable.43 But there are two relevant exceptions. it is arguable that any interpretation of the constitution changes its meaning. the argument turns out to be more problematic than it seems. But if any interpretation amounts to a certain change. reading it and thereby understanding what the expression means. adds something new. In the ordinary use of a language. Interpretation must always go beyond the level of the standard understanding of the meaning of the relevant expressions. then the distinction is. what uses it can be put to. and the only genuine concern is about the extent of the change which is legitimate. Does it mean that interpretation always changes the text. a new aspect of the text which had not been previously recognized or appreciated. When you offer an interpretation of a certain text.) It seems natural. I have already argued. on the other hand. In other words. Let me reiterate briefly. Interpretation. say. You do not interpret anything simply by pointing out a certain fact (linguistic or other) about the text or its surrounding circumstances. We typically clarify a misunderstanding by pointing out the relevant fact.42 This sounds right. They do it all the time. and so on. misunderstanding does not call for an interpretation. a matter of degree and not a distinction between two kinds of activity. is not an instance of clarifying a misunderstanding. Cf Raz (1995). which is presumed to be legitimate.164 Constitutional Interpretation according to the processes prescribed by the constitution. The argument assumes that there is a distinction between the ordinary interpretation of constitutional clauses. or a puzzle. in previous chapters. when there is a question. . remains the same. something that needs to be clarified. There is always the possibility of misunderstanding. that any interpretation changes our understanding of the text.

partly a question of institutional choice and. that any general conclusion would be warranted. and the new law remains in force until it is changed again by a subsequent interpretation. This is an actual. authoritative interpretations of the text actually change it. arguably. but other arguments may still be valid. Needless to say. from the point of interpretation onwards). The question of who should make it. When a need for a certain constitutional change is present. Judicial decisions attach new legal meanings. I believe that the US supreme court has made an error. or may not. at other times. Any interpretation of the constitution changes its legal meaning. A note of caution may be in place here. But the fact is that even erroneous interpretations make the law. it is the law. may get very blurred. I cannot speculate on such matters here. Be this as it may. however. according to which judges have the power to interpret the constitution but not to change it. so does the legal meaning of the constitution itself. it is still the law. I doubt. And as their interpretation changes. There are better and worse interpretations. the change ought to be made. historical process. When judges in their official capacity express their interpretation of the law. we are still not entitled to reach a conclusion about the courts’ authority to invent new constitutional rights. Unfortunately. Surely. often these changes are minute and hardly noticeable.44 Thus the thesis we examined. All this is bound to be true about constitutional interpretation as well. the constitution itself. Capital punishment is constitutional in the US legal system. it is mostly the case law that lawyers would refer to. The court’s interpretation of the law actually determines what the law is (that is. happen. But once an authoritative interpretation of a law has been laid down. . even dramatic. the text itself. a huge error. is partly a question about the political culture of the relevant society. We have only shown that one argument against it is not sound. legal interpretations which are exercised by the court. the constitution means what it is taken to mean by the supreme or constitutional court. and therefore. That is why in the legal case. Perhaps in certain legal systems these considerations yield a fairly determinate conclusion. is groundless. and in this they change. the law is changed. not only our understanding of it.Alternative Methods? 165 text. such an assumption would be absurd. In the legal sense. however. 44 Lawyers would consider this quite obvious: when a question arises about the constitutionality of a certain issue. All this being said. in deciding that capital punishment does not violate the eighth amendment. are authoritative. they are more evident. and according to what procedures. and thus new legal ramifications. partly a matter of democratic theory. and it may. None of the above entails that judges cannot make mistakes in their constitutional interpretation. in the legal sense. and there are mistaken interpretations as well. and its meaning as it has been shaped by previous interpretations. I think that it was a mistaken interpretation of the constitution. to the text. the second exception is the important one: As opposed to interpretation in all other realms.

constitutional decisions are moral decisions that have to be morally justified. or restraint. Both during the Lochner era. The US supreme court during the Lochner era. and the moral considerations that apply include both fidelity to the law of the constitution as it is. In this sense. In fact. . the more it is an ‘activist’ court. that the Warren court was liberal and progressive. for instance. What the opposition is. nor does it entail anything about the nature of constitutional interpretation. sometimes leaning more towards the one than the other. for example. there is a distinction which pertains to the content of the moral and political agenda of the court. Judicial activism. so to speak. which leads to openness to the need to develop and modify it’ (1998: 180–81). First. . Furthermore. The moral and political agenda of the court. The distinction which does pertain to methods of constitutional interpretation is the one which divides interpretations of the constitution into those which conserve previous understandings of it. in this sense. activism in this sense is neither related to the content of the moral views in question. Sometimes. simply means the willingness to confront political opposition. . you do not. but driven by opposite moral/political agendas in these two cases. Activism. But again. and the Rehnquist court is conservative. does not entail anything about the kind of constitutional interpretation which would be required to effectuate the relevant agenda. and openness to its shortcomings and to injustices its application may yield in certain cases. ‘lives in spaces where fidelity to an original and openness to novelty mix .3 Conserving and Innovative Interpretations In popular culture there is a conception of the courts’ role in constitutional interpretation as one which moves between activism and passivity. Raz suggests.166 Constitutional Interpretation 5. The nature of the moral objective does not determine the nature of constitutional interpretation strategy which is required to achieve it. is entirely context dependent. . at other times. and those which strike out in a new direction. The more the court is willing to impose its views in spite of (real or potential) opposition. Another distinction which lawyers and political theorists often talk about concerns the willingness of the court to confront opposition and engage in a conflict with the other political branches of the government or with certain segments of the population. can mean several different things. Sometimes the courts come up with novel. we would say. activism in this sense does not necessarily translate itself to any particular type or method of constitutional interpretation. we could say. however. . Both are inevitable in the interpretation of a constitution. however. the US supreme court pursued an activist role. as such. to the extent that it has one. at other times they manifest conservativism. It all depends on the base line and the relevant circumstances. you get to advance a conservative agenda. constitutional interpretation. Raz calls it the distinction between conserving and innovative interpretations. and the Warren court era. and what it takes to confront it. passivity. even surprising decisions. by exercising restraint or just not doing much. was activist in pursuing a very conservative agenda. .

But it may be worth asking what is it. defer to the text it strives to interpret. Accordingly. if they introduced a change. or ‘the constitution as it is’. a previous interpretation which would determine the result. exactly. But as we have already seen. of course. it must add some new insight or understanding. Nevertheless. there is a sense in which the distinction is very familiar. but one of the parties . Otherwise. These would seem to be innovative interpretations. it is a distinction between the proportions of these two elements. actually. Before we explore this issue. This makes perfect sense. true to the original. let me reiterate a crucial point: even in constitutional law. have clarified an important aspect of it which had been confused or unclear before the decision was rendered. there are many decisions which do not qualify as ‘landmark’ decisions. I have no qualms about this distinction. which entails that it must be. in that they simply reaffirm an aspect of the law which was already known. every interpretation is a mix of a certain deference to the original and shedding new light on it. what we have in mind is the conservation of its previous interpretations by the court. Easy cases do not tend to reach constitutional courts. to some extent. or else. not an interpretation of one. and by this they usually refer to decisions which have introduced a major change in the law or. It is a difference in degree. as Dworkin would say. Almost invariably. however. The question is whether it would still make sense to speak of a conserving interpretation when it is not a previous interpretation which is supposed to be conserved. it was relatively small or marginal.Alternative Methods? 167 I think that Raz would admit that just about any interpretation involves both a conserving and an innovative element. constitutional cases get to be litigated and reach the supreme court in those ‘hard cases’ where the relevant constitutional clause is just not clear enough to determine a particular result. at the very least. innovative interpretation would be a form of overruling the court’s own previous interpretation of the pertinent constitutional clause. On the one hand. to use Raz’s expression. something which is not obviously there already. but somehow the constitution itself. not a distinction in kind. officials elected. Governments operate on a day-to-day basis. (Sometimes a case reaches the court in spite of the fact that there is. but it does not mean that the constitution cannot be simply understood. that the court conserves in its ‘conserving interpretation’? The constitution itself? Its ‘original meaning’? And what would that be? What could be meant by Raz’s expression ‘fidelity to the law of the constitution as it is’? In one sense. So when we speak about conserving interpretation. every interpretation must also have an innovative element. there are ‘easy cases’. and if there is a distinction between conserving and innovative interpretations. and applied. and so on and so forth. it is just an invention of a new text. In other words. to countless instances in ways which do not involve any need for interpretation whatsoever. Or. Lawyers frequently refer to ‘landmark decisions’. elections are run. it may decide to change it. we know the answer: faced with a constitutional case. the court may decide to adhere to its previous interpretations of the relevant constitutional issue. And then. interpretation must be an interpretation of a text. all according to the provisions of the constitution.

If the best way to exercise the power is by relying on sound moral arguments. That is so. Either way. when the litigation stems from the fact that it is not clear enough what the constitution requires in that particular case? Unless we want to revive a mythical originalism here. . It would be a mistake to maintain that because the very legitimacy of constitutional interpretation is clouded in some moral doubts. self-restraint and avoidance of intervention is the appropriate strategy for courts to pursue. But since they do have the power. there is hardly any alternative to sound moral deliberation. they must exercise it properly. I have also raised some doubts about the moral legitimacy of judicial review and. I do not intend to claim that courts should not exercise self-restraint. constitutional cases are almost always hard cases. there must be a plausible argument that the relevant constitutional clause could mean something different from what it had been previously thought to mean.168 Constitutional Interpretation manages to convince the court to reconsider its previous doctrine and potentially. and they must be decided on moral grounds. There are many domains. Far from it. But what the appropriate moral decision ought to be is rarely affected by the question of who makes it. My argument above is confined to the nature of the moral considerations which ought to determine constitutional decisions. judges should adopt a strategy of self-restraint. unpopular. then morality itself dictates that those who are more likely to have the better judgment should be left to make the relevant decision. the concrete results of constitutional cases. When there is no previous interpretation that bears on the case. But even in those cases. refraining from making the right moral decisions just because they might be considered bold. where caution. I have been arguing here that in the realm of constitutional interpretation. then moral considerations are the ones which ought to determine. conserving interpretation is simply not an option because there is not anything to conserve there. about the very legitimacy of long lasting constitutions. and the case is respectable enough to have reached constitutional litigation. Sometimes moral considerations may dictate caution and self-restraint and at other times they may not. I should be more precise here. or otherwise potentially controversial. Constitutional issues are mostly moral issues. Perhaps it is true that constitutional courts have too much political power in the interpretation of the constitution. to some extent. So is not there a tension here? Yes there is. the courts should rely on sound moral judgment. If the decision is of such a nature that it depends on relative institutional competence. arising because the constitution ‘as it is’ is just not clear enough. because there are many areas in which the courts are less likely to get things right than the particular agency or authority which they are required to review. So what would it mean to conserve ‘the meaning of the constitution as it is’. On the other hand. I think that there is nothing that a constitutional interpretation can conserve unless it is a previous interpretation. This is basically a matter of comparative institutional competence. but it does not necessarily point towards a different conclusion. as far as possible. including within constitutional law. overrule it.) In other words. One final comment.

and Michael Shapiro.Alternative Methods? 169 None of this means that the doubts about the moral legitimacy of judicial review should be shelved away and forgotten. perhaps certain powers of constitutional interpretation ought to be shifted from the judiciary to the legislative assembly. McGill University Legal Theory workshop. and at the faculty of law at Tel Aviv University. for their comments on drafts of this chapter. The practical conclusions which follow from such concerns could justify the need for reform and amendment of our constitutional regime. . * I am very grateful to Erwin Chemerinsky. I have also benefited from discussions of this chapter at the USC faculty workshop. allowing for easier amendment procedures. Chaim Gans. perhaps constitutions should mandate their own periodical revisions and re-confirmation by some democratic process. Elizabeth Garrett. but I am confident that there is much room for innovation and improvement. I am not sure about any of these suggestions. Alon Harel. Perhaps constitutions should be made less rigid. David Enoch. Far from it.

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66. 62–4 identity 54 and integrity 53–5 and knowledge 49. 44–5 coherence 47. 64 fit 54–5. 135–6. 82–6 Austin. 79 expertise justification 134. 107 easy v hard cases 91–2. 107. Friedrich 10. 76 and morality 49–53 prior understanding 56–8 reflective equilibrium 47–53 soundness 55 and truth 48–9 communication-intention model 18. 121 constitutional law 144 enumerated rights 163–5 evaluative judgments 41–3. moral legitimacy 144–9 see also judicial review intergenerational issue 145 interpretation argument 146–9 moral expertise 146 moral soundness 145–6 self-validity by practice 147–8 constitutional documents 141–4 abstraction 143 generality 143 longevity 142 moral content 143 rigidity 142–3 supremacy 142 constitutional interpretation 132. Donald 10. 44–5 defeasibility 103–6 indexical predicates 106–12 democracy 133–4. 81 contextual knowledge 19–20 conventional morality 160–2 conventionalism 7–8 core/penumbra 96. 101 . and authority-capacity 88 art v artifact.Index adjudication: interpretation 9. 53 constraints 58–9 enterprise-determined options 57 fit 54–5. 99–101 and interpretation 99–103 constitution. 71 authority-capacity 87–94 author’s intentions model 29–32 Bentham. 45 aims 127 America see United States analytical jurisprudence 2 application intentions 129–32. 137–9 and morality 137–8 time dimension 138 Finnis. John 67. 95 theory 39. 93–4 and intentions 79–80. 68. 99–101 correct assertability 66–7 counterfactual intentions 23–5 critical law 74–7 cultural relativity 77–8 Davidson. 160 and authority-capacity 92 conserving v innovative interpretations 166–9 conventional morality 160–2 easy v hard cases 144 enumerated rights 163–5 originalism see originalism constitutional moments 145n constructive identification 80–2 in art 82–6 and authority-capacity 87–94 and identity 81–2. John 37. JL 2 Austin. 95. 153–4 dependence thesis 88–9 descriptive sociology 2 detached legal statements 37–9 disambiguation 103 Dummett. 11–17 passim. 62. 99–106. as metaphor 77. 141. 69 Fish. 157 arbitration. 62–4 formalism 95–8 Frege. M 10. Stanley 95 debate with Dworkin 55–61. 16–17. Jeremy 37 bivalence 66–7 and morality 67 Brown case 162 central-state realism 68 chain novelists metaphor 55–8 charity principle 12–13. 79 concept-words: core/penumbra 96. 96–8.

43. 21–5. 59–60. 21 Grisewold v Connecticut 163n group intentions 123 Hart. 44–5 holism 47–8. 5 debate with Fuller 99–103 easy v hard cases 96–8. 69. 157–8 genre-dependence 30–1 Germany. 61 hypothetical intentions 130 identification see constructive identification identity 54 see also constructive identification indexical predicates 72–3 defeasibility 106–12 insinuation 129 institutionalization 35–6 integrity. 92–4. 71 Rule of Recognition 69 hermeneutic thesis 36–9. 44–5 detached legal statements 37–9 evaluative judgments 41–3. Alexius von 66 methodological concerns 1–2 Moore. TS 48 law as interpretation 27–8 argumentative practices 39–43 ‘best possible light’ 28–33. 95 defeasibility 103–6 easy v hard cases 91–2. Michael 65. 112 Meinong. 107 and fidelity to law 105 internal point of view 37. 112 legislative intent 119 see also expertise justification. 104. 112 motivation 32 participants’ role 39–43 possibilities 32–3 principle of charity 44–5 social practices 33–7 theory and practice 36 legal expertise 150 legal positivism 1–2. normal justification aims 127 conventional practice 132 democratic arguments 133–4 justifications 132–41 kinds of 126–32 majority model 125–6 representative intentions 122–6 statutory interpretation 119–21 linguistic competence 13–14 Marbury v Madison 149 meaning. Basic Law and Constitutional Court 163n Gricean semantics 18–20. 44–5 internal point of view 37 law as it is/ought to be 95. 121 formalism 95–8 law as it is/ought to be 95. 43 charity principle 44–5 concept words 99–103 constructive model 28–33. 40. 99–106. and coherence 53–5. 76. 132 internal point of view 37 interpretation: see also law as interpretation and meaning 9–10. legitimacy 149–55 see also constitution. and interpretation 9–10. 117–18 further intentions 127–9. 132 group v shared 123–4 hypothetical 130 non-avowable 129. 99–103. H 2. 95. 95. 104. 21–5 radical 10–17 stages 53–5 judicial review. 71. 96–8. Lon 95 debate with Hart 99–103 defeasibility 103–6 and following a rule 112. 40. 146 and legitimacy of constitution 144–9 and originalism 156–9 and realism 70 . 71 knowledge. 104–12 passim moral change 162. 38. 69.178 Index Fuller. 81 counterfactual 23–5 further 127–9. 163 morality: and bivalence 67 and coherence 49–53 conventional 160–2 and expertise 137–8. legislative intent application 129–32 author’s 29–32 and constructive identification 79–80. and coherence 49 Kuhn. 42. intentions. 132. HLA: The Concept of Law 1–2. 76 intentionalism see legislative intent intentions: see also communication-intention model. 74. moral legitimacy argument from consensus 151–3 as democratic decision 153–4 legal expertise 150 right-instrumentalism 154–5 Katz v United States 163n Kelsen. 79 hermeneutic thesis 36–9.

John 48. 132 normal justification 88–90. reference and criteria 107. 136–7 expertise 134. J 37. 44–5 prior understanding 56–8 prior/passing theories 14–15 Putnam. 62. and coherence 48–9 truth-conditional semantics 10–11 Twin Earth example 72. 15 theoretical disagreements 3–5 truth. Ludwig 10. 61 radical interpretation 10–17 Rawls. 108. PF 18. 135–6. J 18. 90 principle of charity 12–13.Index 179 natural law 65 realism 66–71 natural-kind predicates 71–4 non-avowable intentions 129. 17. 51 Raz. 165. 38. 71 authority doctrine 87–94. 134 conserving v innovative interpretations 166–7 constitutional validity by practice 147–8 normal justification 88–90. 64 shared intentions 123 Simmonds. H 71–4. EJ 75–6 Wittgenstein. 106. M 44–5 rules: and interpretation 112. 108–12 . 63 skepticism 60–1 and legislative intent 123–4 social practices 33–7 soundness 55 statutory interpretation see under legislative intent Strawson. 73 Ulysses metaphor 144–5 United States: Constitution 8th amendment 165 14th amendment 159 Supreme Court 92. 41. WVO 12. Jeremy 154–5 Weinrib. 146 normative rules 34–6 normativity of law 37–9 as intermediary conclusions 151–3 right-instrumentalism 154–5 Root. 134–6 rights as intermediary conclusions 151–3 sources thesis 69 realism 66–8 and law 68–71. NE 61. 66 passing theories 14–15 pragmatics 17–21 preemption thesis 88. 101–2 on following a rule 112–18 meaning. 137–9 representative intentions see under legislative intent rights: enumerated 163–5 Tarskian model 12. 40 semantic natural law 65 semantics 4–8. 73–8 and morality 70 and reductionism 67–8. Bertrand 66 originalism 155–60 application intentions 157 further intentions 157–8 moral authority 156–9 Searle. 166 vegetarianism metaphor 41–3 Waldron. 110–11 Quine. 19–20. 71 reference theory 71–4 reflective equilibrium 47–53 relative expertise 134. 134–6 collective action 134–5. 137–9. 135–6. 47–8. 116 meaning and application 113–15 quest for completeness 116–17 use 115–16 Russell.