Toward a Theory of Legal Interpretation
By “legal interpretation” I mean the legally authoritative resolution of questions about what the content of the law is in its application to particular cases. It is the interpretation of legal texts by legally authoritative actors. One aspect of it is epistemological and one is constitutive. The epistemological task is to ascertain the content of laws resulting from previous actions of other legally authoritative sources. The constitutive task is to render an authoritative judgment that itself plays a role in determining what the content of the law is. Sometimes this judgment changes the content of the laws, or legal provisions, that were the focus of the epistemological task.
The content of a law is (to a first approximation) that which the appropriate lawmakers assert, stipulate, or otherwise prescribe by adopting an authoritative text. Just as the assertive content of an ordinary conversation cannot, in general, be identified with the meanings of the sentences used there, or with conversationalists’
goals in saying what they do, so the assertive or stipulative content of a legal text cannot, in general, be identified with the ordinary or technical meanings of the sentences in the text, or with the policy goals motivating lawmakers to approve it. Nor can the content of the text be identified with any normative improvement of what they asserted or stipulated, or with any idealization of their speech act, such as what they would have stipulated had the known all relevant facts. The content of a legal text is determined in essentially the same way that the contents of other texts or linguistic performances are, save for complications resulting from the fact that the agent of a legislative speech act is often not a single language user but a group, the purpose of the speech act is not usually to contribute to the cooperative exchange of information, but to generate behavior-modifying stipulations, and the resulting stipulated contents are required to fit smoothly into a complex set of pre-existing stipulations generated by other actors at other times.
Lawmakers, in my broad sense, are those whose official actions and linguistic performances are constitutive of the contents of the law. They include legislators enacting statutes, administrative bodies issuing rules implementing them, ratifiers of constitutions, voters on ballot initiatives, and judges issuing precedent-setting opinions. In the sphere of “private law,” lawmakers include the parties to a contract, those responsible for legislation regulating the law of contracts, and judges as well as other official bodies adjudicating contractual disputes. Crucially, legally authoritative interpreters of the law are themselves lawmakers, whose actions are in turn subject to further interpretation.
When legal interpretation is understood as the interpretation of legal texts by legally authoritative actors, it naturally follows that such interpretation is itself law governed. The governing legal rules determine the responsibilities of officials who interpret legal texts and make authoritative decisions about them. These rules may or may not be codified in statutes, or expressed in written constitutions. Whether or not they are so codified, they are binding social conventions concerning the duties of specific legal actors. Since the contents of these duties may vary from one legal system to the next, what constitutes correct legal interpretation may vary from system to system.
