Is interpreting a legal text something different form understanding it? If this is the case, what does such a difference consist in? Is it a matter of semantic content of the text or does it depend on the communicative function of legal language? And if a straightforward line between understanding and interpretation can be drawn, does interpretation necessary involve discretionary evaluations or does it rest on objective standards? These traditional issues in legal theory will be addressed by means of a critical reading of Andrei Marmor's book Interpretation and Legal Theory (2005, 2nd ed.). Marmor's book gives a challenging picture of the relation between interpretation and intentionality, as well as between interpretation, authority, and the rule of law. It is a picture which aspires to be original in content but traditional in method. Along the lines of Hart's legal positivism, Marmor aims at describing the very nature of legal interpretation, not at prescribing how to interpret the law. In this essay I will argue that Marmor's understanding of legal interpretation might be more coherent if he would admit that his is not a descriptive theory of legal interpretation in a genuine sense. Marmor is not concerned with interpretation as a matter of fact. He is concerned with interpretation as a means to realize some objective values: the values which interpretation ought to instantiate if legal officials are playing the social game called democracy and the rule of law.
Legal Interpretation and the Objectivity of Values
CANALE, DAMIANO
2008
Abstract
Is interpreting a legal text something different form understanding it? If this is the case, what does such a difference consist in? Is it a matter of semantic content of the text or does it depend on the communicative function of legal language? And if a straightforward line between understanding and interpretation can be drawn, does interpretation necessary involve discretionary evaluations or does it rest on objective standards? These traditional issues in legal theory will be addressed by means of a critical reading of Andrei Marmor's book Interpretation and Legal Theory (2005, 2nd ed.). Marmor's book gives a challenging picture of the relation between interpretation and intentionality, as well as between interpretation, authority, and the rule of law. It is a picture which aspires to be original in content but traditional in method. Along the lines of Hart's legal positivism, Marmor aims at describing the very nature of legal interpretation, not at prescribing how to interpret the law. In this essay I will argue that Marmor's understanding of legal interpretation might be more coherent if he would admit that his is not a descriptive theory of legal interpretation in a genuine sense. Marmor is not concerned with interpretation as a matter of fact. He is concerned with interpretation as a means to realize some objective values: the values which interpretation ought to instantiate if legal officials are playing the social game called democracy and the rule of law.
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