INTERPRETATION AND LEGAL THEORY

Vol. 16 No. 4 (April, 2006), pp.271-276

INTERPRETATION AND LEGAL THEORY (rev. 2d ed), by Andrei Marmor. Oxford and Portland, Oregon: Hart Publishing, 2005. 185pp. Paper. £30.00/$60.00. ISBN: 1-84113-424-4.

Reviewed by Christoph Konrath, Parliamentary Research Department, Austrian Parliament. Email: christoph.konrath [at] parlament.gv.at.

Many students of law seem to regard jurisprudence and adjudication as techniques that enable a lawyer or a judge to establish the definite content of legal provisions applicable in a certain case. If an unambiguous conclusion cannot be reached, lawyers reckon that they have overlooked something or have to improve their legal skills. Quite often, they are disappointed that they cannot find objective and uncontestable answers in the law. Andrei Marmor would not argue for such a trivial view of the law and legal skills. Yet, his arguments propound a picture of law in theory and practice that does come close to the student’s perspective: Marmor is a defender of legal positivism, and according to him, interpretation – and thus a central feature of the contested character of practical reasoning – is the exception. In his book INTERPRETATION AND LEGAL THEORY he argues that it must be possible for us to grasp the meaning of a legal rule in a way which does not require recourse to interpretation. Though this view is founded in a certain reading of Ludwig Wittgenstein’s philosophy of language, Marmor sustains it by repeated reference to legal praxis as some way of following rules and conventions.

Legal positivists hold that it is the task of legal scholars to distinguish between the questions ‘what is the law?’ and ‘how should judges decide cases?’ The legal positivist does not deny that there may be a number of different solutions to a certain legal problem, but her approach is primarily explicative and not applicative viz. constructive. In turn, this attitude emphasizes the discretionary power and the ‘technical’ skills of the judge. Such a view is, for example, expounded in Hans Kelsen’s seminal book on legal positivism (1960/67). Kelsen devoted only seven pages of his book of more than 400 pages to the problem of interpretation. He argued for a clear distinction between interpretation as a task of the judge who is bound to decide in a case even on a rather vague basis (as every utterance of words is vague) and interpretation as a task of a legal scholar which shall be the pure cognitive ascertainment of the meaning of a legal provision.

These sketchy remarks are not intended to devalue the contribution that Kelsen and other positivists have made to legal theory. However, developments in the philosophy of language, the emergence of new modes of literary theory, and the migration of some of their concerns into philosophy of law led to a new interest in the role of interpretation in legal reasoning. The context was set by civil rights movements and the further development of the welfare and the regulatory state which brought forth a whole new set of questions in legal [*272] theory and practice. Thus, a number of theorists started to explore the parallels and divergences between law and philosophy of language, as well as interpretation in law and interpretation in literature. Ronald Dworkin’s ‘LAW’S EMPIRE’ (1986) is widely regarded as the most elaborate account of law as an interpretive concept that calls into question the main tenets of its positivist rival.

Andrei Marmor is one of those thinkers who presented a re-examination of legal positivism in the light of Dworkin’s challenge in 1992. Since then he has developed a theory of social conventions to provide new foundations for legal positivism (Marmor 2001) and has become one of the foremost representatives of his field. He has now revised and partly rewritten his first book INTERPRETATION AND LEGAL THEORY. Indeed, and as Marmor accentuates in the Preface, this second edition is more of a restatement to clarify the arguments and to add a discussion of interpretation in the constitutional domain (which has probably made the most considerable impact on the recent discussion on legal theory and interpretation). However, it is not a reply to his critics. While this may afford a more coherent book, it does leave the reader quite puzzled at times. After all, some of Marmor’s theses are disputed and so are some of the epistemic and philosophical foundations of his arguments.

INTERPRETATION AND LEGAL THEORY provides a powerful critical assessment of Dworkin’s methodological turn, away from analytical jurisprudence towards a general theory of interpretation. It disputes the first premise of Dworkin’s arguments, namely, that every conclusion about what the law is necessarily depends on interpretation. In turn, Marmor argues that interpretation is “part and parcel of the legal practice” (p. 45). Thus, jurisprudence should comprise a theory to account for this. But this should be a theory, which is not itself an interpretation of the law, but a philosophical account of what it is to interpret the law (p.45). The philosophical foundations that Marmor promotes for such an enterprise are mainly based on a specific reading of Ludwig Wittgenstein’s famous though disputed account of following a rule (Wittgenstein 1958, §§143-242; cf. Dickson 2005).

Marmor’s understanding of the concept of interpretation is explained in the context of a dense introduction to contemporary philosophy of language (ch. 2). Marmor asks what makes interpretation unique and different from any other forms of understanding or explanation. A discussion of semantics as an analysis of meaning, Donald Davidson’s theory of ‘radical interpretation’ and pragmatics leads to the conclusion that “interpretation consists in the imposition of meaning on an object, whereas the appropriate notion of meaning is given in terms of communication intentions.” Marmor argues that “interpretation is an exception to, and parasitic on, the prior knowledge of literal meanings, as it normally concerns those aspects of communication which are under-determined [*273] by rules or conventions” (p.25).

Marmor’s critique focuses on Dworkin’s “Constructive Model of Interpretation,” which holds that interpretation strives to present its object in the best possible light, that interpretation is essentially genre-dependent and that there are certain constraints that determine the limits of possible interpretations of a given object. By now, Marmor has become well-known as an ardent critic of Dworkin’s argument of “in the best possible light.” He confronts Dworkin’s thesis with a discussion of author’s intentions, the genre-dependency of any text and the notion of incommensurability of values. This lets him conclude that we should not seek an answer to the question why we should strive for an “interpretation in the best possible light” in Dworkin’s general theory of interpretation but in his jurisprudence. Therefore, he assesses Dworkin’s critique of analytical jurisprudence and the relation between theoretical and practical argumentation. However, from the standpoint of legal theory he has to refute these arguments. This is because he holds the view that analytical jurisprudence strives to understand what the law is and not why we should obey the law (p.43).

This line of critique becomes clearer when Marmor explicates the epistemic foundations of Dworkin’s theory, especially the author’s understanding of coherence. Remember that Dworkin has repeatedly argued that a legal system comprises not only the conventionally identifiable law, but also those norms which can be shown to fit or cohere better with the best theory of the settled law. Marmor is skeptical about the scope and possibility of any coherence theory of knowledge and he underpins his point by an analysis of coherence theories, notably John Rawls’ “reflective equilibrium.” Dworkin has interpreted Rawls’ approach and adapted it for his own argument for a moral theory which endorses coherence as one of its basic values. This thought is explicated in a discussion of the concepts of ‘identity’ and ‘fit’ and a review of the ‘Fish-Dworkin-Debate.’ Marmor attempts to understand this debate as a discussion about the constraints of interpretation. In his view, the assumptions and the difficulties of Dworkin’s and Fish’s arguments can but lead to the conclusion, that “if legal texts have a meaning that is not entirely dependent on a process of interpretation, then it is at least sometimes the case that the law can simply be understood” (p.64) – and this is exactly what Marmor propounds in his theory.

Marmor’s defence of legal positivism in light of Dworkin’s challenge and his theory on what it means to interpret the law builds on Joseph Raz’s “doctrine of authority” (Raz 1985), H.L.A. Hart’s distinction between the core and penumbra of concept-words at the basis of judicial reasoning (Hart 1958) and Wittgenstein’s remarks on following a rule (Wittgenstein 1958). Marmor argues that constructive identification in law – a core concept of Dworkin – is rendered impossible due to conceptual reasons which can be derived from Raz’s analysis of the concept of authority (p.87). This analysis entails that the law claims to possess legitimate authority [*274] and that it must be possible to identify the authority’s directive independently of the reasons on the basis of which the authority found its decision. Then, he confronts Dworkin’s disapproval of the distinction between ‘easy cases,’ where the law can be simply understood and applied straightforwardly, and ‘hard cases,’ where the issue is not determined by existing legal standards (p.95). Marmor argues that this distinction builds on one of the main insights of legal positivism, namely its insistence on the conceptual separation between law as it is and law as it ought to be.

This all leads to the assumption that “judges can identify the law and apply it without references to considerations about what the law ought to be in the circumstances” (p.95). While critics may associate this with a “philosophical scarecrow called judicial formalism” (p. 97), Marmor thinks that these conceptual tenets stand on a firm basis and should be upheld. Reminding the reader of Hart’s distinction between the core and penumbra of concept-words, he argues that this distinction is entrenched in a “highly sophisticated conception of meaning and language, namely, that of Wittgenstein” (p.96). An elaborate analysis of the ‘Hart-Fuller-debate’ is intended to clarify Hart’s arguments and to illustrate his shortcomings. In order to refute Fuller’s allegation against Hart and to restate the latter’s arguments it is necessary to discuss Wittgenstein’s thoughts on what it means to follow a rule in more detail. Again, Marmor asks “whether it makes sense to maintain that any application of a rule must be mediated by an interpretation of the rule in question” (p.112). He explains that Wittgenstein’s concern with what following a rule consists derives from his conception of meaning. And this is, in turn, not an inner state of mind, but rather an (array) of abilities to use the expression in accordance with the rules of the language. Following Gordon Baker’s and Peter Hacker’s (1985) understanding of Wittgenstein (cf. the critique of Dickson 2005), Marmor argues “that 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” (p.113). He sustains his argument by explaining Wittgenstein’s line of thought and discusses counter examples and misunderstandings – e.g., the problem of vagueness. In sum, Marmor proposes a theory of what it means to interpret the law on the basis of Wittgenstein’s arguments that complies with the main tenets of legal positivism.

What follows is a discussion of the role of the legislator’s intentions and their role in the interpretation of statutes and an attempt to elucidate the conditions under which it would be reasonable for judges to defer to the legislature’s intentions in statutory interpretation (ch.8). However, the real test for Marmor’s approach is the interpretation of constitutions and thus, the determination of issues of profound moral and political importance “on the basis of very limited textual guidance” (p.141). He is concerned with the moral legitimacy of the institution itself and the ways in which it ought to be practiced. This chapter is essentially – and in contrast to the rest of the book – a discussion about the legitimacy and [*275] power of the US Supreme Court and a critique of some recent debates about it. Marmor raises the question of what is the legal authority of the Court to rely on moral arguments in constitutional interpretations. He considers the controversies about whether judges should rely on conventional conceptions of morality, the question of ‘enumerated rights,’ and the question of whether there is a distinction between conserving and innovative interpretations. He concludes that constitutional cases are almost always ‘hard cases’ and that there is hardly any alternative to sound moral deliberation. Still, Marmor asks whether constitutional courts should not practice self-restraint and whether constitutions should be made less rigid and allow for easier amendment procedures. That is quite similar to the answer Kelsen gave in his famous 1929 lecture on the genesis of the Austrian model of Constitutional Review which is in fact grounded in legal positivism and the separation of law and morals (cf. Öhlinger 2003). However, Marmor did not take up this argument which could in fact have supplemented his re-statement of legal positivism.

To conclude: INTERPRETATION AND LEGAL THEORY is a challenging contribution to an on-going, arguably perennial debate. Especially the discussion of major works and disputes in relation to insights of the philosophy of language is of importance as it points to shortcomings and weaknesses of the prevalent adaptations of legal and literary theory.

REFERENCES:

Baker, Gordon and Hacker, Peter. 1985. WITTGENSTEIN, RULES, GRAMMAR AND NECESSITY. Oxford: Blackwell.

Dickson, Julie. 2005. “Interpretation and Coherence in Legal Reasoning.” THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Fall 2005 Edition), Edward N. Zalta (ed.). URL = http://plato.stanford.edu/archives/fall2005/entries/legal-reas-interpret .

Dworkin, Ronald. 1986. LAW’S EMPIRE. London: Fontana Press.

Hart, H. L. A. 1958. “Positivism and the Separation of Law and Morals.” 71 HARVARD LAW REVIEW 593.

Kelsen, Hans. 1929. “Wesen und Entwicklung der Staatsgerichtsbarkeit.” VERÖFFENTLICHUNGEN DER VEREINIGUNG DEUTSCHER STAATSRECHTSLEHRER. Tübingen: Mohr.

Kelsen, Hans. 1960. REINE RECHTSLEHRE. Wien: Franz Deuticke (Knight trans. 1967. PURE THEORY OF LAW. Berkeley: University of California Press).

Marmor, Andrei. 1991. INTERPRETATION AND LEGAL THEORY. Oxford: Oxford University Press.

Marmor, Andrei. 2001. OBJECTIVE LAW AND POSITIVE VALUES. Oxford: Oxford University Press. [*276]

Öhlinger, Theo. 2003. “The Genesis of the Austrian Model of Constitutional Review of Legislation.” 16 RATIO JURIS 206-222.

Raz, Joseph. 1985. “Authority, Law and Morality.” 68 MONIST 295-324.

Wittgenstein, Ludwig. 1958. PHILOSOPHICAL INVESTIGATIONS, Eng. trans. by G.E.M. Anscombe, 2nd ed. Oxford: Blackwell.

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