Interpretación jurídica y objetividad de los valores

Marmor’s book “Interpretation and Legal Theory” focuses on some philosophical aspects of legal interpretation which have been often neglected or misconceived by legal theory. By considering these aspects Marmor gives an original and challenging picture of the relations between, on the one hand, interpretation and intentionality, and, on the other, interpretation, authority, and the rule of law. Marmor’s analysis of these issues puts him in an autonomous position within contemporary legal positivism. In this paper I claim that Marmor’s picture of legal interpretation might be more coherent and consistent if he would admit that his own is not a descriptive theory of interpretation in a genuine sense. Marmor does not explain what legal interpretation consists in or how officials interpret the law. He is not concerned with the nature of interpretation as a matter of fact. He is concerned with the nature of interpretation as a means to realize some objective values, i.e. the values which interpretation has to instantiate in the case officials are playing the social games called democracy and the rule of law. This theoretical position could be characterized as a form of conceptual normativity: the legal domain ought to be so as to correspond to the concept we have of it. It is a concept depending on the objective, although conventional values the law is here to settle. I think that this admission would neither drain Marmor’s analysis of its philosophical interest nor imply a dismissal of legal positivism. I do not hold, in fact, that it is not possible to give a genuine description of legal interpretation, nor that legal positivism is necessarily bound to such a kind of account. I am simply claiming that Marmor’s theory of legal interpretation does not offer a genuine description of his subject. It offers a description of how officials have to interpret the law in order to realize the social and political values which are constitutive of the practice they take part to. In the first section of the paper I point out that Marmor’s theory of legal interpretation is developed in opposition to the picture of constructive interpretation supplied by Ronald Dworkin. In particular, Marmor’s claims about interpretation justify the negation of Dworkin’s correspondent claims. Since Dworkin’s picture of constructive interpretation has not an explanatory but a normative purpose, however, it seems to me that Marmor’s discourse is not descriptive as he assumes it is: the negation of a normative sentence does not reverse the direction of fit of the sentence. In the second section I claim that there is something common to Dworkin’s and Marmor’s arguments on legal interpretation. It is the implicit premise consisting in making reference to values. Assuming Dworkin’s point of view, a normative-based practice exists if, and only if, it serves some interest or purpose, that is enforces some principles and realizes some political values. Social and political values play an important role in Marmor’s picture of legal interpretation too. According to Marmor, for instance, the author’s intention is a suitable criterion of interpretation in the legal domain if and only if there is a set of objective values which makes the use of such a criterion a necessary condition of their instantiation. This hypothesis permits to reconstructs Marmor’s thesis on legal interpretation in a coherent and consistent way.