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3.5.2 Legal Reasoning and Interpretation

By Tatiana Duarte

On this page

  1. Working definition
  2. Examples of how ‘legal reasoning’ and ‘legal interpretation’ are used
  3. ‘Legal reasoning and interpretation’ in terms of MoE, affordance and LPbD
    1. Mode of Existence
      1. Legal reasoning
      2. Interpretation
    2. Affordance
      1. Legal reasoning
      2. Interpretation
    3. Legal Protection by Design
      1. Legal reasoning
      2. Interpretation

Working definition

  • Legal reasoning concerns the justification of the determination of legal effect in a specific case. The justification is provided in the form of a syllogism:

    1. The major: a legal norm that attributes specified legal effect if specified legal conditions are fulfilled
    2. The minor: a specified set of legally relevant facts that, supported by evidence, fulfil the relevant legal conditions
    3. The conclusion: the attribution of the specified legal effect
  • The syllogism is not a method to find the legal effect but a way to test whether a legal norm does or does not apply. This test requires to choose the relevant legal norm, and both interpretation and legal reasoning.
  • The syllogism requires interpretation of the legal norm in the light of the facts and interpretation of the facts in the light of the legal norm. The following types of interpretation are deemed valid:

    1. Ordinary meaning (grammatical or literal interpretation) based on the prevailing meaning of the norm’s written articulation
    2. Framers’ intent (the intent of the legislature) as inferred from official documents
    3. Systematic interpretation based on the role the relevant norm plays in the context of the relevant legal system (its place in the relevant statute, its relationship with other norms whether higher norms such as a Constitution or Treaty or precedent)
    4. Teleological interpretation based on the purpose of the relevant legal norm, taking framers’ intent, ordinary meaning and systematic interpretation into account
  • The syllogism requires a decision about the extent to which a case is like or unlike other relevant cases. Such a decision requires one of two types of reasoning:

    1. By analogy, arguing that since one case is like another the same legal norms applies to both
    2. A contrario, arguing that since one case is different from another the same legal norm does not apply to both
  • Legal reasoning is often defined as deontological reasoning (not about how things are but about how they should be) and understood as non-monotonic and defeasible logic. This means that whereas ‘if a then b’ is correct for now, additional information may render it incorrect.

Let us import from Hart the famous no vehicles in park example to illustrate what we mean by legal reasoning and interpretation.1

Imagine you arrive at a local park by scooter and see a signpost where it can be read No vehicles in the park.

You wonder:

  • Does a scooter count as a vehicle?
  • Is the word ‘vehicles’ only applicable to means of transportation that reach a certain speed threshold?
  • Can I explore the park by scooter or should I walk?

You conclude that the prohibition probably applies only to vehicles that might threat safety of the passers-by, like cars or motorcycles. You decide entering the park by scooter.

A police officer approaches and applies you a fine, arguing that you have violated a rule the forbids the circulation of vehicles in the park. You wonder how you can contradict such understanding and present your point of view.

If a court was confronted which such a case,2 it could decide that, for the purposes of the prohibition, a scooter is a vehicle. In that case, the court would ground such decision on a (value-laden) family resemblance3 between the factual scooter and the normative concept of vehicle,4 and confer legal effect to the prohibition, for instance, by condemning the offender to pay a fine.

If a different interpretative path were adopted, the intellectual process of legal reasoning would not change in its structure, but would change its content.

The court could, instead, understand that a scooter does not have a normative family resemblance with a vehicle in the context of the prohibition, case in which it would conclude that the norm does not regulate the facts at stake. If that was the case, the scooter driver would not be fined.

This is where interpretation and legal reasoning intertwine and mutually constitute each other – the court attributes meaning to a legal norm (interpretation) and uses that interpretation to evoke that norm as the regulative criterion for closure (legal reasoning).

Mode of Existence

The conceptual lenses of modes of existence allow us to overcome the tension between ontological and epistemological perspectives on law,5 by pointing out the modes of veridiction embedded in and instituted by legal reasoning.

The activity of the judiciary is constituted and delimited by rules, principles, procedures and practices that, on the one hand, define its positive space of autonomy before other sovereign powers, and, on the other hand, negatively circumscribe its jurisdiction — i.e., its power to dictate the law — in the face of the spheres of legislature and administration.6 Legal reasoning incorporates the powers and constraints of the judiciary, thereby granting the legitimacy (indeed, the legality) of its authoritative discourse.7

The court interprets facts in terms of legal norms (and vice-versa), thereby transfiguring them from brute into institutional facts.

Norms, procedures and practices regulate the conduct of the judge (who must be impartial and independent), as well as the way they learn the facts and arguments presented by the parties.8

Facts are considered legally relevant when they have a bearing on the judicial verdict, that is, to the extent the law is required to intervene in that particular conflict. The court interprets facts in terms of legal norms (and vice-versa) thereby operating their transfiguration from brute to institutional facts.9 Facts may be relevant because they fit an interpretative reading of a legal norm.

Nevertheless, the particular epistemology of institutional facts includes rules concerning the production of evidence, which also constrain the relevance of facts to law.10 Regardless their legal relevance in terms of fitting a legal norm, where facts are obtained through illegal means, or where the production of evidence offends a principle or a fundamental right (for example, the right to remain silent), such facts may not be considered in a court of law.

This shows that legal reasoning is not reducible to a semi-mechanical procedure of framing facts under the terms of the legal system. It is, rather, a value-laden reasoning which ensures not only substantive fitness, but also procedural fairness. Here, we can see that the mode of veridiction afforded by legal reasoning is designed to guarantee legal protection.

The epistemological validity of legal reasoning is grounded on a triptych of facts, norms and practices. By practices we mean ways of making sense of blends of facts and norms in the specific context of providing closure to legal disputes — for instance, by vouching proposals on how to justify judicial decisions or by introducing interpretative strategies.

The epistemological validity of legal reasoning is grounded on a triptych of facts, norms and practices.

Practices are subscribed by interpretative communities, who may be defined as models of thinking that incorporate a principle-based understanding of law 11 — i.e., a conception about the law, interpretation and forms of reasoning.

Whether aware of that or not, jurists belong to interpretative communities, as their understanding of the legal system is informed by (a background compound of) beliefs about law that constrain their interpretative practice.

A machine may detect patterns of reasoning through the application of mathematical formulae and statistical methodologies to a dataset composed with a relevant number of juridical decisions in text.

Nevertheless, the machine output would not translate the way in which jurists accept and are bound by rule-based practices that constrain their reasoning.12 Indeed, when the court, and jurists in general, perform legal acts, they attribute them an illocutionary force afforded by an internal perspective of the law.13

This is not tantamount to saying that all the jurists agree about the outcome of a case or about the way legal norms should be read — as matter of fact, the same attorney may represent opposite claims and construct meaningful arguments in both cases. This only means that jurists are bound by an institutional framework itself informed by interpretative cultures recognisable as such.14

A judge, as a jurist themselves, is part of an interpretative community — therefore, their principle-based understanding of law will most likely inform the epistemology of the judicial decision.15

Legal reasoning is the result of a discursive interplay between the judge, prosecutors and attorneys within the judicial environment.

The norms and procedures that constitute legal reasoning do not regulate the content of the decision itself. Yet, they grant a rule-based institutional epistemology that settles the language-game of the judicial discourse in the specific competence of dictating the law in a concrete case.16

Legal reasoning is the result of a discursive interplay between the judge, prosecutors and attorneys within the judicial environment. Its epistemology is informed by a complex network of institutional facts, primary and secondary norms and interpretative practices.

As a fundamental aspect of both the epistemology and legitimacy of authoritative closure, legal reasoning emerges as a guarantee that a judicial decision stems from the legal system in its dimensions of form, substance and procedure.

Interpretation

In the previous section, we have approached constitutive aspects of legal reasoning — one of those being interpretation, to which we shall now zoom in to inquire what its truth-conditions are.

What are the interpretative rules followed by the judge when deciding concrete cases?

The purpose of this study is not to provide an extensive report on the different accounts on legal interpretation developed by legal scholarship along the history of law. However, it is possible to map the objectives and the criteria that are traditionally ascribed to authoritative interpretation.

In continental legal traditions, two different currents of thought ascribe fundamentally different purposes to interpretation.17

One of these doctrines considers that the aim of interpretation is to reproduce the authoritative will of the organ that enacted the legal norm (mens legislatoris) — therefore, it has been dubbed the subjectivist account.18 This strand of thought implies a particular configuration of the system of countervailing powers, where only legislature, as the embodied representative of the will of the demos, has the institutional legitimacy to ascribe meaning to legal norms. Following this trail of thought, the interpretative activity undertaken by the judge is only legitimate as a reverberation of the people’s will, as expressed in legal text.

The intention of the legislator of the past is manufactured with the tissue of today.

The subjectivist account seems to overlook the necessarily contemporaneous nature of interpretation, which makes possible — as much as it contaminates — any interpretation of the past. The reader will not access the intention of the legislator as a psychological fact, but, rather, as an interpretative fact — i.e., as something informed by interpretative conventions. In other words, the intention of the legislator of the past is manufactured with the tissue of today.19

A different account abstracts the meaning of text from its author, arguing that legal norms can be attributed an objective meaning contained in the law (mens legis). The so-called objectivist doctrine acknowledges the a-changing20 nature of meaning and, thus, both the legitimacy and the obligation of the judiciary to confer meaning to positive law by interpreting the situated will of the legal system rather than that of the author.

Although traditional in continental jurisdiction, this binary division between subjectivist and objectivist theories overlooks the complexity of the interpretative phenomenon. Which indeed lends itself to accommodate both doctrines.

The two accounts would be mutually exclusive only if they were understood as ascribing incompatible purposes to interpretation. But if we understand that the purpose of legal reasoning and interpretation is to provide closure, the interpretative paths (and the interpretative result) provided by subjectivist and objectivist theories do not necessarily exclude each other.

Authoritative interpretation must reflect the scheme of countervailing powers, which involves interpreting and iterating the democratic will expressed in text and the coherence of the legal system inscribed in the norm.21 This understanding blurs the boundaries between objectivist and subjectivist accounts22 and acknowledges interpretation as a comprehensive, iterative practice. The purpose of providing closure determines the scope of interpretation, but not its direction (as suggested by the doctrines exposed above).

Continental legal doctrine developed criteria to attain what it understood as being the purpose of interpretation — either the intent of the legislator, or the meaning of the law —, namely the grammatical, historical, systematic and teleological criteria.23

The grammatical element constitutes what is traditionally called the letter of the text, whereas the other methods propose interpretative roads beyond it to attain the spirit of the law. These interpretative criteria constitute a heritage of legal theory that still resonates today. Hereunder we will provide an overview of them as they are learnt by jurists.

The grammatical criterion sticks interpretation to a binding relation between a scheme of signs (text) and meaning, or a range of foremeanings.24

The historical criterion invites the interpreter to inquire the conditions that led to the adoption of a legislative solution, namely by analysing the travaux preparatoires that were in the origin of a legal norm and/or the original problems a specific legal solution proposed to answer to.

The systematic criterion implies considering the norm as part of a whole meaningful integrity, which may be a section, a statute or the constitution. The norm, as a unit (part) of the legal order, expresses or inscribes the unity of the (whole) legal order. The location of a norm within the written map of positive law provides what we could metaphorically call meaningful coordinates to grasp the unwritten territory of law.

By following the teleological criterion, the interpreter focuses on the purpose ascribed to a norm within the legal order.25

The norm, as a unit (part) of the legal order, expresses or inscribes the unity of the (whole) legal order.

The four criteria just described should be taken together as typical intellectual operations involved in attributing meaning to legal propositions and not as four different kinds of interpretation.26

Due to the inescapable incompleteness of written law in the face of infinite possible arrangements of fact, it can also be the case that no written norm, once interpreted, provides a proper regulative criterion that fits the case. In such cases, the court may summon a rule that has been evoked to regulate past cases found similar to the case at hand to construct the justification of closure (analogia legis). A kind of reversed analogy is offered by the argumentum a contrario, which consists of a negative reasoning in reading the norm that justifies the different treatment of the case at hand.

The traditional accounts and criteria provided above rely on the dichotomy letter/spirit. Such dichotomy overlooks the fact that the process of reading involves decoding text while interpreting the legal system. This means that reading is not a neutral activity that allows us to read only the letter without necessarily attaining an interpretative spirit (as supposed by the traditional letter/spirit binomial).

A familiar example of the non-neutral character of reading are the so-called literal meanings. They are no less a constructed product than other less evident meanings. The difference is that literal meanings conceal a pre-interpretative projection (a fore-meaning) under the cover of self-evidence.27 Even where the attribution of meaning sounds so self-evident that it looks like it is given literally by text, interpretation does not cease to be a construction. Literal meanings just signal that an internalised interpretative procedure preceded a reading – not that interpretation is spurious or non-existent. Denying the existence of literal meanings is not, however, denying, but acknowledging, the existence of interpretative habits that underlie the appearance of self-evidence.28

Positing an authoritative interpretation is a performative act which always implies going beyond what legislation (text) can do — which is constructing the norm of the case, a written speech act that is necessarily different from the written speech act of enacting legislation.

Affordance

In this section we will inquire whether and the extent to which legal reasoning provides legal protection.

Legal reasoning affords a guarantee that the modes of veridiction of law apply to the judicial discourse.

Legal scholarship has proposed different models to ensure a Droit-based reasoning in court.29 One of the proposed models is imported from formal logic and is based on the modus ponens argument, known as (legal) syllogism. This account implies taking statutes as universals which must be instantiated by the facts of the case30 so that a judicial decision or a claim can be legally justified.31

The classical structure of the legal syllogism is constituted by a major premise (a universal), minor premise (the facts that predicate a universal) and a conclusion that necessarily derives from the logical relation between the two premises.32

However, legal scholarship is not unanimous regarding the structure of the legal syllogism. One of the main divergencies concerns the content of the major premise. Some formulate it as the text of a statute (legal norm) or, where a matter is not regulated by a statute, as an explicit or implicit major premise grounded in case law and doctrine.33 Others understand the major premise as the result of a constructive labour on text (interpretation).

Legal doctrine on syllogism distinguishes internal justification — the validity of the inference derived from the premises — from external justification — the validity of the premises.34 Indeed, the interpretative nature of law, itself afforded by the ductility of scripted natural language, relies on rhetorical and persuasive arguments more than it relies in logical connectors.35 This is tantamount to saying that the sense and the reference of legal syllogism is determined by non-deductive arguments.36

Some claim that the conclusion deductively entailed by the premises is not itself the decision of a case; it is, rather, a material element that pinpoints what the court may justifiably decide.37 In short, what the legal syllogism thesis is committed to is at ensuring a framework in which interpretative arguments make sense as legal arguments.38 Hence, once the interpretative process is concluded, the decision may be formalised as a syllogism.

Other strands of legal scholarship, such as the one professed by Ronald Dworkin, consider that judicial discourse is legally grounded where it reflects the substantive integrity of the legal system.

Coherence is obtained through what Dworkin calls constructive interpretation, that is, through the best possible arrangement of legal principles, rules and practices to rule the case at hand.39 Justification translates a dimension of fit committed to the integrity of the legal system.40

The working definition understands legal syllogism as a product of constructive interpretation, where both major and the minor premises are an interpretative result. The major premise is not composed by the text of a statute (as such), nor the minor premise corresponds to a simple transposition of the facts as alleged by the parties. Both the major and minor premises are interpretatively developed, by iterating facts, norms and practices against each other until a meaningful product of such iteration is obtained.41

The combination of legal syllogism and constructive interpretation intends to ensure that the facts predicated by the minor premise are interpreted as ruled by an interpretative construction (involving facts, norms and practices) of the legal system.

Valid legal reasoning affords a particular kind of treatment that protects citizens from unfair judicial action.

The constitutional equilibrium between legislature, administration and adjudication is reflected on the proceedings in court as much as in the written judicial justification for closure. Legal reasoning ensures that the judicial verdict is a legitimate product of the legal system.

By guaranteeing that the judicial discourse is imbued with the modes of veridiction of law, legal reasoning affords a particular kind of treatment that protects citizens from a judicial discourse that does not reflect the protection afforded by law (i.e., the fairness of the judicial decision). This second point will be discussed in the section concerning legal protection by design.

Interpretation

Let us go back to the example mentioned in the first section of this contribution.

The sign board with the message no vehicles in the park is the exteriorisation of a legal norm enacted by the legislature, which was enforced by the police officer in their role as an agent of the administration. To contest the interpretation enforced by the administration, the citizen must resort to the court, the competent body to provide closure through an authoritative (re)reading of the norm against the legal system, after hearing the arguments of administration and those presented by the citizen.

The case triggers the need to interpret the norm that forbids the circulation vehicles in the park. The court must, then, respond to the following question: is a scooter considered a vehicle for the purposes of the prohibition?

This must not be understood as if legal interpretation was reducible to a semantic operation of decoding law. The authoritative attribution of meaning involves multiple iterations which are not exclusively semantic, but logical, axiological, systematic and teleological.

What is seemingly a mere semantic operation of interpreting the concept of vehicle is rather a compound of diverse variables, such as: (i) the purposes ascribed to the prohibition (which can be ensuring safety, or quietness in the park); (ii) the systematic insertion of that norm within the legal system; (iii) the possible consequences of such and such interpretation; (iv) similar regulated cases; (v) interpretative principles, such as the one that forbids the application of prohibitions by analogy, among others. Each of these variables offers a different light on the concept of vehicle.

The court’s (and the police officer’s) reading of the norm is the result of weighing different variables, each of which induces a particular interpretative route.

The authoritative act of reading by the court is informed by the purpose of providing closure to a juridical dispute. Here, it is important to clarify the relation between interpretation and application. Although we may intellectually differentiate interpretation and application as two different operations, they are indistinguishable in the process of reading.42

Similarly, legal reasoning and interpretation are mutually constitutive practices that we can only separate by rationalising them as intellectual operations, as we have done along this contribution. We did that as a way to reveal their different outlines and the expectations each of them grants, however, affirming their unified legal phenomenology.

The distance afforded by text forces jurists into a situated reading, informed by a shared form of life within an interpretative community.

If we depict legal reasoning and interpretation as intellectual operations, we can say that interpretation is the process of attributing meaning to the word vehicle having in mind the facts of the case and the sources of law; whereas legal reasoning is intellectual trail that connects the meaning of vehicle with a source of law that grounds the decision of the case.

However, what seems clear when we describe legal reasoning and interpretation (as well as interpretation and application) as intellectual operations becomes intertwined and blurred when they are understood as performative (authoritative) practices. This means that when the court puts term to a juridical conflict by grounding its decision on a source of law, legal reasoning and interpretation are unified, rather that separate, practices.

The distance afforded by text forces jurists into a situated reading, informed by a shared form of life within an interpretative community. The existence of interpretative communities must, therefore, be considered as an affordance of text, having a fundamental role in defining referential practice points that are constitutive of a specific kind of reasoning and interpretation as a legal one.43 The existence of interpretative communities does not mean absence of disagreement between lawyers, but, rather, a common acknowledgement of the terms of such disagreement.

Along with legal education (itself informed by them), interpretative communities afford jurists to learn living-patterns (not simple regularities, but a-changing rule-based regularities) through which they make sense of the legal order as a coherent whole.

Judicial interpretation is infused with the structural constraints determined by judges’ (who are themselves jurists) allegiance with an interpretative community.44 Interpretative communities have the elasticity to acknowledge the contestable nature of interpretation and yet afford referential points to sustain an interpretative rhetoric, either from the court or from the parties.

The interpretative practices followed either by the parties or by the court must be recognisable as such — again by interpretative communities — to be considered as decisions, claims or defences within the legal language game.

By affording referential practice points that allow making sense of the legal system, interpretation affords legal protection in a double sense. One, it establishes a language game that constrains authoritative reasoning and interpretation, thereby preventing their fall into arbitrariness. Two, it settles the language game that equips the citizen to contest an administrative decision (or a judicial one, through appeal) under the terms of law’s mode of veridiction.

The role of legal reasoning for legal protection may be drawn in diverse ways, according to the theoretical understanding of the legitimacy of law and philosophical accounts about the process of rule-following and its rapport with language.

For the time being, we propose a look into the affinity between legal reasoning and legal protection by design concretised in the justification of judicial decisions. The concept of legal protection by design triggers us to do so from two different loci. The first looks into legal reasoning through the lens of the system of countervailing instituted by the Rule of Law. The second topoi inquires the extent to which legal reasoning, as a condition of legitimacy of a judicial decision, affords contestation.

The justification of judicial decisions is one of the most eloquent expressions of the checks and balances system. On the one hand, the judge is obliged to shelter their decisions in a source of law. On the other hand, legislature constrains the conduct of the judge through the establishment of principles and rules of procedure in court. This shows that a judge is as much a meaning attributor as is subject to law in their exercise of such authoritative power.

Legal reasoning strives to guarantee that the individual norm of the case is grounded on a source of law and that its substantiation is offered to the legal community observing a particular form of discourse.

But not only that.

Legal norms, principles and procedures generate a especial kind of certainty, not about the outcome, but about a particular kind of treatment.

Legal reasoning ensures fairness both during the procedure in court and in the intellectual trail that informs judicial decision-making. This is patent in the constraining effect procedural norms have in the scope of legal reasoning, such as those concerning forms of obtaining evidence; limitation periods; the adversarial nature of procedure, among others. Moreover, as already stated, legal reasoning is infused with the deontological rules that regulate the behaviour of the judge, which determine its independence and impartiality in judging any claim.

The norms, principles and procedures that guarantee a fair trial generate a especial kind of certainty, not about the outcome, but about a particular kind of treatment. This outwork of the system of countervailing powers demonstrates how legal reasoning is a fundamental element in a system designed to provide legal protection.

The second topoi proposes to inquire whether legal reasoning affords contestability. As stated before, the court’s verdict must be a recognisable artefact of the legal system, that is, it must fit a recognisable interpretation of positive law. To be sure, judicial decisions must be clear concerning court’s reasoning on facts and legal norms — even if its effects only apply to the involved legal subjects, the decision addresses the community as whole.

There is, however, a caveat concerning the intelligibility — and altogether, the contestability — of judicial decisions for a lay citizen. The intricacies of the justificatory discourse operate in the particular language of the jurists. Hence, the modes of veridiction of law rest on an interplay between facts, norms and practices that might be opaque to a lay citizen.

This is why attorneys are usually required to assist legal subjects, as they inform the community of jurists technically equipped understand the decision as a contestable product and voice their constituents’ claims. Representation by a lawyer is a guarantee of due process, mentioned both in Articles 47 and 48 (2) of the Charter of Fundamental Rights of the European Union.

An effective legal protection demands effective advice, defence and representation in order to allow legal subjects to present their petitions to court and to interpret the reasoning of judicial decisions.

Interpretation

In this section, we will develop the idea stated above that interpretation affords legal protection. We have already demonstrated that judicial interpretation is an exteriorisation of a particular system of powers. Now, we will attempt to focus on the extent to which interpretation affords contestability, as a core element of the concept of legal protection by design.

Legal interpretation requires decoding text, both as a system of signs and as the inscription of a principle/rule-based system. Both the decoding movements happen simultaneously.

Hence, no reading is neutral.

To be sure, the ICI of text does not, by itself, determinate an interpretative outcome; it, however, imposes the need for interpretation.45 This is not saying that text by itself (as if unread) enforces a particular meaning is, rather, dependent on the interpretative horizons of the reader.

No reading is neutral.

The process of reading (legal) text is contingent on conceptions and practices that produce the interpretative result. Even words whose meaning seems so literal that it sounds indisputable (and thus incontestable) are artefacts of a prior interpretative process. The fugaciousness of textual meaning is a core aspect of legal protection, as it affords contestation even where an interpretation is perceived as pre-determined and, therefore, indisputable.

The particular epistemology of law may be illustrated by way of example. In the Portuguese Criminal Code, the crime of breaching of home or disturbance of private life is aggravated when committed at night or in a deserted place, or in other circumstances listed in the legal norm.46

What if the crime is committed during twilight or at dawn?47

Then, the judge must decide48 (not deduce)49 what makes the circumstances of the case fit (count as) the legal concept of night. In other words, the court must determine whether the facts of the case are legally relevant in light of the norm that aggravates the crime. Such relevance is not mechanically determined by the fact that the crime was committed during the night period in a naturalistic sense.

Judicial interpretation is infused by the modes of veridiction of law, therefore its felicity conditions are not to be performed as a verification of naturalistic conditions — which would, in any case, imply an interpretative choice concerning what counts as the night period.

The legal concept of night is informed by social and cultural ideas and appraised according to the role of the norm within the legal system.50 A greater vulnerability is associated to the night period, either because it is dark or because it is considered to be a resting period, where people are less vigilant, and the offender takes advantage of such circumstances.51 The idea of exposure and vulnerability is also suggested by other of the aggravating circumstances (a deserted place).

Probably the aggravating circumstance would be weighted differently in a case where a house is breached during the night when nobody is there compared to a case where an elderly couple is inside sleeping. This does not mean that the word night is to be converted into a vulnerability assessment in such a way that if someone breached a property during daytime whenever an elderly couple was inside sleeping, the aggravating circumstance night would serve as a justification to aggravate the crime.52 It just means that the concept of night is not naturalistic, but legal – that is, informed by (an interpretation of) the values of the legal order.

The example above should not be read as the only possible (admissible) interpretation of the norm — the multiplicity of facts that could possibly be regulated by it would not authorise such conclusion. Nor would the interpretation suggested above be representative of all the interpretative communities — textualist currents would likely dismiss it as plainly wrong.

What the example meant to demonstrate is that the meaning of legal norms is not offered as-is by text, but is obtained through it, in light of the values of the legal system as read by the interpreter.

The interpretative nature of the act of reading legal norms opens alleys for contestability, even in cases where a decision is based on the most apparently literal interpretation. By nature, the act of reading offers itself as a contestable (because context-able) artefact.

The meaning of legal norms is not offered as-is by text, but is obtained through it, in light of the values of the legal system as read by the interpreter.

What is desirable on the side of contestability, may raise a concern: if the judge gets to infuse interpretation with the beliefs they attribute to the legal system, closure is arbitrary and left to their whims.

The risk of subjectivism has haunted legal doctrine and has been both avoided and embraced. However, this leitmotiv overlooks the judge either as part of an interpretative community and as a role.

Interpretative communities share beliefs about interpretation and their recognition as such makes them part of the interpretative culture of a legal order.53 If a decision is framed according to a repository of beliefs shared by a legal community, arbitrariness becomes a chimera – or, else, an arbitrary decision would not qualify as recognisable judicial decision in virtue of its alienness to any known interpretative community.

Furthermore, the institutional role of the judge demands them to justify their decisions in a way that makes of them a legitimate product of the legal system.

Contestability is afforded by the unsettling nature of meaning and by the institutionalisation of the authoritative powers of writing and reading. The institutional role of the judge and its natural allegiance to an interpretative community hamper arbitrary decisions, thereby affording legal protection by design.


References

>1 - Anyone who, without consent, enters another person's dwelling
>or remains there after being ordered to leave is punished with a
>prison sentence of up to one year or a fine of up to 240 days.

2 - The same penalty applies to anyone who, with the intention of disturbing another person’s private life, peace and quiet, calls their home or cell phone.

3 - If the crime provided for in paragraph 1 is committed at night or in a deserted place; by means of violence or threat of violence, with the use of a weapon or by means of breaking into; escalation or false key; or by three or more, the agent is punished with a prison sentence of up to three years or a fine.

  1. H.L.A. Hart, The Concept of Law (Oxford University Press 1994), pp. 124-129. 

  2. If a person decided to enter the park driving her scooter and a police officer fined her for violating the prohibition (under the argument that a scooter counts as vehicle), she could contest the fine in court. 

  3. The idea of family resemblance can be found in L. Wittgenstein, Philosophical Investigations (G.E.M. Anscombe tr, Macmillan Publishing 1953), §§ 67-68. 

  4. The example must not be understood as if legal interpretation was reducible to a single semantic operation — it involves multiple iterations which are not exclusively semantic, but logical, axiological, systematic or teleological. 

  5. M. Hildebrandt, Smart Technologies and the End(s) of Law (Edward Elgar Publishing 2015), pp. 160-161; B. Latour, An inquiry to the modes of existence — An anthropology of the moderns (Catherine Porter tr, Harvard University Press 2013), pp. 54-61. 

  6. For a perspective on external and internal sovereignty as constitutive of the system of countervailing powers and as a condition for protection of fundamental rights, see M. Hildebrandt, ‘Extraterritorial jurisdiction to enforce in cyberspace?: Bodin, Schmitt, Grotius in cyberspace’, (2013) 63(2) University of Toronto Law Journal 196-224, at p. 204. 

  7. This seems to correspond to what Hart calls rules of adjudication, a species within the category of secondary rules (together with the rules of recognition and change). To be sure, legal reasoning is also constrained by primary rules that courts are bound to evoke as a normative criterion to decide cases. However, in this section we are not referring to the primary rules that constitute the outcome of a case, but to the secondary norms that institute legal reasoning as a practice of a sovereign power. We prefer the term norms of adjudication to Hart’s original concept of rules of adjudication to encompass both the principles and rules that institute and regulate the judiciary in its authoritative practice of applying law to concrete cases. On the concept of rules of adjudication, H.L.A. Hart, The Concept of Law, (Second Edition, Oxford University Press 1994), pp. 96-98. Associating legal reasoning with legitimacy, rather than to method, M. Hildebrandt, Law for Computer Scientists and Other Folk, (Oxford University Press, 2020), p. 28. 

  8. By ´party’ we are referring to all participants in a juridical dispute, that is, the defendant, the plaintiff and the prosecutor. 

  9. The distinction between brute and institutional facts may be found in G.E.M. Anscombe, ‘On Brute Facts’ (1958) 18(3) Analysis 69-72; J. Searle, Speech Acts — An Essay in the Philosophy of Language (Cambridge University Press 1969); M. Hildebrandt, ‘Legal and technological normativity: more (and less) than twin sisters’ (2008) 12(3) Techné: Research in Philosophy and Technology 169. 

  10. M. Hildebrandt, Law for Computer Scientists and Other Folk (Oxford University Press 2020), pp. 28-30. 

  11. Although the idea of interpretative communities took inspiration on the work of Stanley Fish, the definition in the text seems broader and more abstract that the one the author subscribes to, which goes like this: Indeed, it is interpretive communities, rather than either the text or the reader, that produce meanings and are responsible for the emergence of formal features. Interpretive communities are made up of those who share interpretive strategies not for reading but for writing texts, for constituting their properties. In other words these strategies exist prior to the act of reading and therefore determine the shape of what is read rather than, as is usually assumed, the other way around. Even this formulation is not quite correct. The phrase “those who share interpretive strategies” suggests that individuals stand apart from the communities to which they now and then belong. This definition may be found in the ‘Introduction’ to the work Is There a Text in This Class? The Authority of Interpretive Communities (Harvard University Press 1980), p. 14. A developed account on interpretative communities may also be found in the same work, in the essay entitled ‘Interpreting the Variorum’, particularly at pp. 167-173. The understanding of ‘interpretative communities’ in the body of the text is broader than the one professed by Fish, as we do not see any reason to restrict the notion of ‘interpretative communities’ only to those involved in writing texts. Interpretative communities seem recognisable not only as those who systematise ideas, but also as the jurists who apply these frameworks of thought and reinstate them or reinterpret them critically. 

  12. From an external perspective of law, such as the one that seems to underlie the mode of existence of law as an instrument of social engineering, it probably won’t be possible to distinguish between the rule of law from the rule by law. Such distinction may be found in the work of M. Hildebrandt, Smart Technologies and the End(s) of Law (Edward Elgar Publishing 2015), pp. 163-165; ‘Radbruch’s Rechtsstaat and ‘Schmitt’s Legal Order: Legalism, Legality, and the Institution of Law’ in (2015) 2(1) New Historical Jurisprudence & Historical Analysis of Law 42-63, particularly pp. 56-62. 

  13. In the sense given by H.L.A. Hart, The Concept of Law (Second Edition, Oxford University Press 1994), p. 3. Calling up for the distinction between rules and regularities, L. Wittgenstein, Philosophical Investigations (G.E.M. Anscombe tr, Macmillan Publishing 1953), §§ 629-632; C. Taylor, ‘To follow a rule’, Philosophical Arguments (Harvard University Press 1997), p. 179; M. Hildebrandt, ‘The adaptive nature of text-driven law’, (2021) 1(1) Journal of Cross-disciplinary Research in Computational Law 1-15 at pp. 8-9. 

  14. Such recognition is not solipsistic, in the sense that an individual privately acknowledges an interpretative community as a recognisable one within the culture of a legal order. This acknowledgment is conventional and informs the beliefs of the interpreter, as the basis of her understanding of the legal system. This account is developed by Stanley Fish, ‘Is there a text in this class?’ in Is There a Text in This Class? The Authority of Interpretive Communities (Harvard University Press 1980), pp. 317-321. 

  15. The finite nature of human beings condemns them to interpret the world from a standpoint (situation), which informs the amplitude of her vision – this is what Gadamer calls horizon, bringing the idea of a line which changes as we move to the phenomenon of understanding. The horizon will be as broad as our capacity to understand from our standpoint what is distant. Our beliefs inform our standpoint (present situation), therefore determining the breadth of our interpretative horizon. This means that interpretation is not an unbiased phenomenon. See H.-G. Gadamer, Truth-and-Method (Second Revised Edition, J. Weinsheimer and D.G. Mars trs, Continuum 2004), pp. 313-318. The same idea, with different nuances, namely that beliefs are supported by interpretative communities, can also be found in Stanley Fish, Is There a Text in This Class? The Authority of Interpretive Communities (Harvard University Press 1980), pp. 14-17. 

  16. This seems close to J. Habermas, Between Facts and Norms – Contributions to a Discourse Theory of Law and Democracy, (William Rehg tr, MIT Press 1996), p. 235. 

  17. These two different currents are referred to by Kark Engisch, Introdução ao Pensamento Jurídico, Portuguese translation of the Einführung in das Juristiche Denken by J.B. Machado, Lisboa: Fundação Calouste Gulbenkian (2008) pp. 169-197; K. Larenz, Metodologia da Ciência do Direito, Portuguese translation of the Methodenlehre der Rechtswissenschaft by J. Lamego, Lisboa: Fundação Calouste Gulbenkian (2009) pp. 445-450; A. Castanheira Neves, ‘Metodologia Jurídica – Problemas fundamentais (Reimpressão)’, in Stvdia Ivridica – 1 Boletim da Faculdade de Direito da Universidade de Coimbra (2013) pp. 98-103. 

  18. An extensive critique against the interpretative endeavour of attributing the meaning of a statute to its author’s intentions is provided by R. Dworkin, Law’s Empire (Harvard University Press 1986), pp. 317-337; ‘Law as Interpretation’ (1982) 9(1) Critical Inquiry, 179-200 at pp. 197-199. Also criticising the subjectivist account, G. Radbruch, ‘Legal Philosophy’ in The Legal Philosophies of Lask, Radbruch, and Dabin (Kurt Wilk tr, Harvard University Press 1950) pp. 140-146. Claiming that intention is not a psychological fact, but an interpretative fact constrained by conventional norms, S. Fish, ‘Working on the Chain Gang’, in Doing What Comes Naturally (Duke University Press 1989), pp. 98-101. 

  19. S. Fish, ‘Working on the Chain Gang’, in Doing What Comes Naturally (Duke University Press 1989), pp. 98-101. Besides the particular architecture of intention as an interpretative (rather than psychological) phenomenon, in interpreting the past we must be aware that our expectations concerning meaning inform the horizon of our own understanding. This means that interpretation is constrained by our fore-understanding of its object. Such anticipation of meaning is not subjective, but rather proceeds from a shared vision about the past. For further development, H.-G. Gadamer, Truth-and-Method (Second Revised Edition, J. Weinsheimer and D.G. Mars trs, Continuum 2004), pp. 278-284; 302-310. 

  20. This expression was borrowed from Bob Dylan’s lyrics Times they are a-changin’, from the album with the same name, launched in

    1. By the expression we want to illustrate the idea conveyed by (our interpretation of) the lyrics, that is, the continuous redefinition of circumstances and thoughts about the world – which is inherent to the interpretation of text.

  21. Savigny establishes two felicity conditions for interpretation: the interpreter must (i) attempt to reconstruct the intellectual trail of the legislator and (ii) acknowledge the historico-dogmatic whole of the legal system and perceive its relations with text. See F.K. von Savigny, System of the Modern Roman Law (William Holloway tr, J. Higginbotham 1857) §XXXIII 173-174 and Traité de Droit Romain, translated by M. Ch. Guenoux, Paris: Libraire de Firmin Didot Frères (1855) §XXXIII 208-209. The association of expression to subjectivist theories and of inscription to objectivist theories was inspired by work of R. Barthes, ‘La mort de l’ auteur’ (1968) 5 Manteia 61-67, p. 64. The article is translated in English language, under the title ‘The death of the author’, translated by S. Heath, Image, music, text (Fontana, London 1977), p. 146. 

  22. As Gadamer puts it Understanding is to be thought of less as a subjective act than as a participating even of tradition, a process of transmission in which past and present are constantly mediated. See Truth-and-Method (Second Revised Edition, J. Weinsheimer and D.G. Mars trs, Continuum 2004) at p. 302. 

  23. The classical source in this respect is the work of F.K. von Savigny, System of the Modern Roman Law (William Holloway tr, J. Higginbotham 1857) §XXXIII 171-173 and Traité de Droit Romain, translated by M. Ch. Guenoux, Paris: Libraire de Firmin Didot Frères (1855) §XXXIII 206-209. Savigny distinguished four elements for the interpretation of written laws: grammatical, logical, historical and systematic. The logical element concerned the discretisation of the thought in logical parts — the word thought points to the sense, as the intellectual import of the law, and not to the intention of the legislator. The French translation clarifies that the Author expressly avoided the word ‘intention’ — see note (a) at p. 206. Savigny considered that the objective of interpretation (explication) was the reconstruction the sense of the law, that is, its content. Therefore, everything that did not belong to the content of the law, regardless how associated with it, should remain out of the object of interpretation. This was the case of the motive (the purpose, the telos) of the law (ratio legis), which could mean either a rule from which others could be deduced and taken as a consequence of; or the effect the rule aimed at producing. For Savigny, these senses of the word motive were not necessarily opposed; indeed, we should admit that the legislator has had both in mind — thus, the difference is that the first meaning was more common in rules of the ius commune and the second in rules of the ius singulare. About the motive of the law, see § XXXIV of the same work — in the English translation pp. 174-178, in the French translation pp. 206-209. 

  24. The notion of foremeaning refers to an anticipatory projection of the meaning of text based on the expectations of the reader regarding its meaning. We found the idea of foremeanings in Gadamer’s work, building on Heidegger. See Truth and Method at pp. 278-284; 302-310. 

  25. In the interpretation of European Union Law, we can find a variant of the teleological interpretative element named meta-teleological interpretation. It refers to an interpretative approach which considers overarching goals and principles of the Treaties; whereas the teleological element is concerned with immediate purposes of a specific legal norm. Initially, the meta-teleological element was more associated to economic goals; later on, fundamental rights integrated meta-teleological interpretation which reflects the different perception on the content of European Community/European Union Law over time. The meta-teleological argument seems to combine the interpretation of principles and policies – which are not always unambiguously distinguishable. For further developments, see J. Gerards, “Judicial argumentation on fundamental rights — The EU Courts’ challenge”, in European Legal Method — in a multi-level EU legal order, Jurist-og Økonomforbundets Forlag (2012) 34-38. 

  26. F.K. von Savigny, System of the Modern Roman Law §XXXIII 173-174 and Traité de Droit Romain §XXXIII 207-208. 

  27. S. Fish, ‘Still Wrong After all these Years’, in Doing What Comes Naturally (Duke University Press 1989), pp. 358-359. 

  28. L. Wittgenstein, Philosophical Investigations (G.E.M. Anscombe tr, Macmillan Publishing 1953) §§ 85; 198-199. The Author compares rules to signposts at §85, pointing out their common lack of interpretative self-sufficiency, which depends on the practice of following them. 

  29. Some of these models are exposed by E.T. Feteris, Fundamentals of Legal Argumentation — A Survey of Theories on the Justification of Judicial Decisions (2nd edition, Dordrecht: Springer 2017). 

  30. The idea that a particular case is an instance of a general norm is not undisputed. The case may be understood not as an instance of a general norm — which would still be logically problematic, as norm and case are not realities of the same kind to be in a general/particular logical relation — but, rather, as the reason why general norms exist, which is to provide closure to legal disputes. As Radbruch puts it, the interest of jurists is not so much the general statement that compose the norm, but the summarization of many individual statements by way of an economy of thought. See G. Radbruch, ‘Legal Philosophy’, p. 150. A similar idea may be found in H.L.A. Hart, ‘The Ascription of Responsibility and Rights’ in (1948-1949) 49 Proceedings of the Aristotelian Society 171-194. However, Hart has expressly repudiated such account in the preface of his later work, Punishment and Responsibility — Essay in the Philosophy of Law (2nd edition, Oxford University Press 2008), since he found its main contentions were not defeasible and that the critiques addressed to them were justifiable. The criticism we are referring to is the one Hart quotes to justify his departure from his initial position, namely by P.T. Geach, ‘Ascriptivism’, (1960) 69(2) The Philosophical Review 221-225 and G. Pitcher, ‘Hart on Action and Responsibility’ (1960) 69(2) The Philosophical Review 226-235. Some corrective shields could have dismissed the above-referred criticism to Hart’s account, namely (i) replacing the opposition between descriptive and ascriptive by that between descriptive and normative; and (ii) instead of referring to the defeasibility of legal concepts, what in fact is at stake is the defeasibility of legal rules, as suggested by F. Atria, On Law and Legal Reasoning (Hart Publishing 2001), pp. 138-139. 

  31. N. MacCormick, Rhetoric and the Rule of Law – A Theory of Legal Reasoning (New York: Oxford University Press 2005), p. 80. 

  32. In the text, we only mention the simplest form of the legal syllogism doctrine, but not all the Authors formulate the legal syllogism in the same way, nor they attribute the premises or the conclusion the same kind of content. A different formulation of the legal syllogism may be found in H. Kelsen, Essays in legal and moral philosophy (D. Reidel Publishing Company 1973), p. 245. Differently from MacCormick, Kelsen presents the major premise and the conclusion as statements about the validity of a legal norm (not a norm). The validity of the court’s decision (individual norm) is presupposed as a premise, not logically inferred. 

  33. N. MacCormick, Rhetoric and the Rule of Law — A Theory of Legal Reasoning, p. 46. The formulation of the major premise as a part of statute may be found at p. 36. 

  34. J. Wróblewski, ‘Legal Syllogism and Rationality of Judicial Decision’ (1974) 5(1-2) Rechtstheorie 33-46, at p. 39; R. Alexy, Teoría de la Argumentación Jurídica — La teoría del discurso racional como teoria de la fundamentación jurídica, (original title Theorie der Juristischen Argumentation — Die Theorie des rationalen Diskurses als Theorie der juristischen Begründung (1978) (M. Atienza and I. Espejo trs, Lima: Palestra 2007) especially pp. 306-391. 

  35. N. MacCormick, Rhetoric and the Rule of Law — A Theory of Legal Reasoning, pp. 42-43. The author indicates five problems that may compromise syllogistic premisses based on non-deductive reasoning: (i) problems of proof; (ii) problems of qualification: (iii) problems of evaluation; (iv) problems of interpretation; and (v) problems of relevancy. Also stating that legal reasoning is a matter of argumentation rather than logic, M. Hildebrandt, Law for Computer Scientists and Other Folk (Oxford University Press 2020), p. 30. 

  36. In MacCormick’s expression, the real reasons of the decision. See Rhetoric and the Rule of Law — A Theory of Legal Reasoning, p. 42. 

  37. MacCormick, Rhetoric and the Rule of Law — A Theory of Legal Reasoning, p. 55. 

  38. MacCormick, Rhetoric and the Rule of Law — A Theory of Legal Reasoning, p. 43. 

  39. About constructive interpretation, R. Dworkin, Law’s Empire (Harvard University Press 1986), especially at pp. 65-68. 

  40. R. Dworkin, Law’s Empire (Harvard University Press 1986) pp. vii; 254-258. 

  41. This idea seems to correspond to what J. Rawls, Theory of Justice (Revised edition, Belknap Press 1999), pp. 15-19, called reflective equilibrium. Rawls writes It is an equilibrium because at last our principles and judgments coincide; and it is reflective since we know to what principles our judgments conform and the premises of their derivation (p. 18 (our highlights)). The idea of reflectivity \ seems to refer to the deductive derivation of judgments from principles (what the scholarship on syllogism calls internal justification). The idea of equilibrium seems to have in mind a sort of constructive interpretation (what the scholarship on syllogism calls external justification). This is clearer when Rawls adds I do not claim for the principles of justice proposed that they are necessary truths or derivable from such truths. A conception of justice cannot be deduced from self-evident premises or conditions on principles; instead, its justification is a matter of the mutual support of many considerations, of everything fitting together into one coherent view* (p. 19 (our highlights)). 

  42. H.-G. Gadamer, Truth and Method, pp. 318-322. 

  43. S. Fish, ‘Still Wrong After all these Years’, in Doing What Comes Naturally (Duke University Press 1989), p. 360. 

  44. S. Fish, ‘Working on the Chain Gang’, in Doing What Comes Naturally (Duke University Press 1989), p. 98. 

  45. M. Hildebrandt, Law for Computer Scientists and Other Folk (Oxford University Press 2020), p. 6. 

  46. The norm in reference is Article 190 (Breach of home or disturbance of private life) of the Portuguese Criminal Code, which we reproduce. 

  47. This example is inspired in A. Castanheira Neves, ‘Metodologia Jurídica — Problemas fundamentais (Reimpressão)’, Stvdia Ivridica — 1 Boletim da Faculdade de Direito da Universidade de Coimbra (2013), p. 140. 

  48. Even where deductive reasoning is applied, the construction of the premises is an interpretative decision of the judge. To use the terms currently used by scholarship on syllogism, the external justification is the result of an interpretative decision; only the internal justification is deductive. It is only possible to deduce when the terms of such deduction are defined – which does not happen deductively. The particular formulation of syllogistic reasoning is contingent on the beliefs of the interpreter concerning the construction of the premises (authors are not unanimous about their composition) and the configuration of syllogism itself. In the example given in the text, the legal relevance of night implies an interpretative decision about whether night shall count as an aggravating circumstance. That the facts of the case fit the normative concept of night is an interpretative decision, not a deduction. 

  49. The act of will that underlies authoritative interpretation must not be confounded with what MacCormick classifies as a replication of what he called the Kelsenian objection, which, in a simplistic formulation, states that a judicial decision, as an act of will, cannot be deduced from pre-established premisses — i.e., the will of the legislator declared in the general norm does not imply the act of will that constitutes the rule of the case. MacCormick does not deny the objection, only its scope. He states that the fact that a decision is not deductively attained does not undermine the possibility that conclusions relevant to its justification may be derived from pre-established premisses. In other words, the conclusion derived from the premisses would not be the decision itself but would be relevant to justify it. The Author evokes the Rule of Law and the principles of representative democracy, according to which the court is bound by pre-established rules, to justify this account. Regarding the classificatory problem, MacCormick considers Kelsen’s objection only from the perspective that ascriptions, as acts of will, cannot be deduced. However, Kelsen’s account seems to imply more than that — it is not just that a will cannot be deduced, but, rather, that an individual will may not be logically inferred from a general will. About the so-called Kelsenian objection, N. MacCormick, Rhetoric and the Rule of Law – A Theory of Legal Reasoning, pp. 55-57; see pp. 70-72 for the classificatory problem. Kelsen’s account may be found in H. Kelsen, Essays in legal and moral philosophy (D. Reidel Publishing Company 1973), pp. 241-244. 

  50. G. Radbruch, ‘Legal Philosophy’ in The Legal Philosophies of Lask, Radbruch, and Dabin (Kurt Wilk tr, Harvard University Press 1950), pp. 148-149. Radbruch distinguished legally relevant concepts, used in setting forth states of fact, from constructive and systematic concepts, by means of which the normative content of a legal norm is grasped (for instance, legal rights, legal relations and legal institutions). According to Radbruch, when legally relevant concepts (the former category), such as night, are adopted by law, they endure a teleological transformation. We would prefer to qualify such conceptual transformation (indeed, translation) either as axiological (in the sense that it reflects values of the legal system that are not restricted to its teleology) or as interpretative (which is a less loaded concept and allows for interpretative flexibility). 

  51. This form of reasoning in law is analogous to the one Paul Ricœur attributes to metaphors and symbols as a surplus of signification, as opposed to the literal signification in ‘Metaphor and Symbol’, Interpretation Theory: Discourse and the Surplus of Meaning (Texas University Press 1976), p. 55. 

  52. In criminal law such reasoning would be particularly problematic, as several jurisdictions forbid the analogic application of criminal rules — which mutatis mutandis applies to aggravating circumstances. 

  53. Stating that interpretative communities cut-off the tension between objectivity and subjectivity, S. Fish, Is There a Text in This Class? The Authority of Interpretive Communities (Harvard University Press 1980), p. 14. 

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