andrei marmor interpretation and legal theory

INTERPRETATION AND LEGAL THEORY

This is a revised and extensively rewritten edition of one of the most influentialmonographs on legal philosophy published in recent years. Writing in the intro-duction to the first edition the author characterized Anglophone philosophers asbeing “. . . divided, and often waver[ing] between two main philosophical objec-tives: the moral evaluation of law and legal institutions, and an account of itsactual nature.” Questions of methodology have therefore tended to be sidelined,but were bound to surface sooner or later, as they have in the later work of RonaldDworkin. The main purpose of this book is to provide a critical assessment ofDworkin’s methodological turn, away from analytical jurisprudence towards atheory of interpretation, and the issues it gives rise to. The author argues that theimportance of Dworkin’s interpretative turn is not that it provides a substitute for‘semantic theories of law’, but that it provides a new conception of jurisprudence,aiming to present itself as a comprehensive rival to the conventionalism manifestin legal positivism. Furthermore, once the interpretative turn is regarded as anoverall challenge to conventionalism, it is easier to see why it does not confine itselfto a critique of method. Law as interpretation calls into question the main tenetsof its positivist rival, in substance as well as method. The book re-examines con-ventionalism in the light of this interpretative challenge.

Interpretation and Legal Theory Second edition

ANDREI MARMOR

OXFORD AND PORTLAND, OREGON2005

Hart PublishingOxford and Portland, Oregon

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© Andrei Marmor 2005

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Contents

Preface to the Revised Edition viiPreface to the First Edition ix

1. INTRODUCTION 1

2. MEANING AND INTERPRETATION 9

1. Radical Interpretation 102. Pragmatics 173. A Third Meaning of Meaning? 21

3. DWORKIN’S THEORY OF INTERPRETATION AND THE NATURE OF JURISPRUDENCE 27

1. The Constructive Model of Interpretation 282. Theory and Practice 333. The Internal Point of View 374. The Argumentative Character of Law 395. Constructive Interpretation and the Principle of Charity 44

4. COHERENCE, HOLISM, AND INTERPRETATION: THE EPISTEMICFOUNDATION OF DWORKIN’S LEGAL THEORY 47

1. The Reflective Equilibrium 472. Identity, Fit, and Soundness 533. The Fish—Dworkin Debate 554. The Concept of Fit Once Again 62

5. SEMANTICS, REALISM, AND NATURAL LAW 65

1. The Meaning of ‘Realism’ and the Meaning of ‘Law’ 662. Putnam’s Theory of ‘Natural Kinds’ and the Concept of Law 713. Real Law? 74

6. CONSTRUCTIVE IDENTIFICATION AND RAZIAN AUTHORITY 79

1. Constructive Identification 802. Constructive Identification and the Objects of Art 823. Razian Authority and Constructive Identification in Law 87

7. NO EASY CASES? 95

1. A Scarecrow Called Formalism 952. The Hart—Fuller Debate 993. The Argument From Defeasibility 1034. Indexical Predicates and Empirical Defeasibility 1065. Wittgenstein on Following a Rule 112

8. LEGISLATIVE INTENT AND THE AUTHORITY OF LAW 119

1. What is the Issue? 1192. Whose Intentions? 1223. What Kind of Intentions? 1264. Why Should Intentions Count? 132

9. CONSTITUTIONAL INTERPRETATION 141

1. Two Basic Questions 141

Part One: Moral Legitimacy

2. The Moral Legitimacy of the Constitution 1443. The Legitimacy of Judicial Review 149

Part Two: Interpretation

4. Any Sensible Originalism? 1555. Alternative Methods? 160

References 171Index 177

vi Contents

Preface to the Revised Edition

It is an awkward task to revise a book one wrote more than a decade ago. So whenI began this revision project, I approached it with some apprehension and a greatdeal of concern. I wasn’t sure that I would find all the arguments cogent, though Iwas quite sure that the English and style would require considerable revision. As itturned out, some of the arguments required revision as well. Particularly, I had tomake substantive revisions in Chapter 3, which deals with Dworkin’s theory ofinterpretation. On the whole, I have not attempted to provide here a detailed replyto critics. Some of those replies I have already published over the years, othersmust await another occasion. The purpose of this revised edition is to clarify thearguments which appeared in the first edition, and to add a discussion of inter-pretation in the constitutional domain. The latter I have done in a new chapter.

I cannot say that it was a pleasure to work on these revisions. Understandably,it is more satisfying to explore new topics than to try to clarify old thoughts. But itwas certainly a challenge, and I am grateful to Richard Hart, the publisher, for pre-senting me with this opportunity to issue a second edition of this book. Mostly,however, I am very grateful to my students over the years who had to endure myconstant struggles to understand the nature of interpretation and its bearing onthe nature of law and legal reasoning. If I have a better sense of these issues now,it is only because they forced me to explain my thoughts in the face of their healthyskepticism. This revised edition is one more phase in a continual endeavor tounderstand interpretation and legal theory.

Andrei MarmorLos Angeles, 2004

Preface to the First Edition

This book is based on a doctoral thesis submitted at the University of Oxford.Many people have helped me to accomplish it, but my greatest debt is to JosephRaz, from whom I have learnt a great deal and could still learn much more. I ammost grateful to him for his illuminating criticisms of drafts of this work, and forhis continuous advice and encouragement throughout these years.

Ronald Dworkin was kind enough to comment on a substantial part of thebook, and I am grateful for his invaluable criticisms. Peter Hacker’s memorableseminars on Wittgenstein, and the conversations we have had, influenced mythought considerably. I am also indebted for his comments on the drafts of severalchapters. I owe a special debt of gratitude to Chaim Gans of Tel Aviv University,who introduced me to legal philosophy several years ago, and who also providedme with valuable comments on parts of this work. Meir Dan-Cohen’s commentson the drafts of several chapters were extremely helpful: he saw many issues whichoriginally had eluded me, and saved me from some serious mistakes and obscuri-ties.

Thanks are also due to G. A. Cohen, Carsten Hansen, Morton J. Horwitz, MartyLevine, Michael Moore, Gad Prudovski, and Ian Rumfitt, all of whom read partsof this study and offered valuable comments.

My acknowledgments would be seriously wanting if I did not mention my grat-itude to Adrian Zuckerman for his help and encouragement during my stay atOxford; to Trevor Dickie, for the many hours he spent trying to improve myEnglish; and to the members of Balliol College for the stimulating and enjoyabletime I spent there.

My stay at Oxford was made possible by the Tel Aviv University Faculty of Law,Balliol College, and the University of Oxford, all of which provided generousfunds. I am also indebted to the Cegla Institute for Comparative and PrivateInternational Law of Tel Aviv University Faculty of Law, which provided a gener-ous research allowance enabling me to prepare the book.

A contracted version of Chapter 7 was published in the Canadian Journal of Lawand Jurisprudence, and I am grateful to the editors for their permission to use thearticle here.

Finally, I would like to express my appreciation to Rela Mazali for her thoroughrevision of my English, editing, and style.

1

An Introduction: The ‘Semantic Sting’ Argument

LAW IS ONE of the most interesting and complex social phenomena of ourculture. As such, it attracts scholarly attention from a wide range of differentfields; historians, theologians, sociologists, economists, each equipped with

his or her methods and theoretical objectives, find their own particular interests inthis social phenomenon. Philosophers, in turn, have their own perspective on law,but from a methodological perspective it is problematic. Generally speaking, theinterests of Anglophone philosophers are divided, and often waver between twomain philosophical objectives: the moral evaluation of law and legal institutions,and an account of its actual nature. But this latter, descriptive type of theorizing,the attempt to answer the question ‘What is law?’, is somewhat puzzling. What canphilosophy contribute to our understanding of a social practice such as law? Howwould such an understanding differ from that of the sociologist or historian?

Historically, the kind of answer expected to the question ‘What is law?’ has typ-ically varied with the dominating philosophical tradition. Thus when medievalessentialism lost its appeal, and it no longer seemed to make sense to speculateabout the ‘nature’ or ‘essence’ of law, a different kind of answer was required.During the 19th century it was reasonable to seek a definition of ‘law’, thus mani-festing, perhaps, the rising concern for logical and scientific accuracy. On thebackground of twentieth-century analytical philosophy, however, this definitionaltask was conceived of as rather naïve. The assumption was that law is too complexa phenomenon to be captured by any one definition. But if it is neither the essenceof law nor its definition that legal theory should seek out, what then? Once again,legal philosophers could look to the dominating philosophical tradition of thetime, in this case, to the emerging analytical philosophy and its manifest interestin language and the concept of meaning. HLA Hart is the founder and torch-bearer of the resulting tradition; the conceptual analysis undertaken in his monu-mental book, The Concept of Law (1961), has shown the methods and insights ofrecent analytical philosophy to be relevant to the classical questions of legal theory.Hart regarded the main task of legal philosophy as one of providing an analysis ofthe concept of law and related concepts essential to our understanding of law andlegal systems. He believed that a meticulous conceptual analysis of this type would

lay the intellectual foundations for a rational and critical evaluation of law, free ofromanticism or moralizing myths.1

Needless to say, the analytical approach to jurisprudence raised methodologicalquestions of its own. After all, it is far from self-evident what the analysis of concepts consists in. Is the analysis of the concept of law a matter of determiningthe ordinary uses of ‘law’? And if so, how would this contribute to a better under-standing of law as a social phenomenon? What makes it true that ‘a sharpenedawareness of words . . . sharpen[s] our perception of the phenomena’, as Hart, citing JL Austin, proclaimed in his preface to The Concept of Law?

It seems remarkable that these methodological concerns have not come to theforefront of legal philosophy until quite recently, despite Hart’s own awareness ofthem and some intriguing answers he suggested as early as his inaugural lecture of1953, and later throughout his writings. Undoubtedly the reason for this lies atleast partly in the substantive improvements Hart was able to offer on the existing(and exciting) models proposed by Austin and Kelsen. This may be indicative ofthe attention paid by philosophers to questions of method being inversely pro-portionate to the substantive progress being made in the given field. As long as thelegal theories presented by Austin, Kelsen, and Hart could offer intriguing modelsfor substantive philosophical discussions, observations about method tended to berather casual and incidental to the main inquiry. But of course, the methodologi-cal puzzles were bound to surface sooner or later, as they have with the recent workof Professor RM Dworkin.

Since replacing Hart as the Oxford Professor of Jurisprudence, Dworkin hasturned out to be his predecessor’s most extraordinary critic. Yet in the earlierstages of his criticism he followed in the methodological footsteps left by Hart andmade his own contribution to the tradition of analytical jurisprudence. Recently,however, his critique has taken a sharp methodological turn: it consists in an out-right rejection of the analytical approach to legal theorizing. This approach, whichDworkin identifies with what he calls ‘semantic theories of law’, is to be replacedby a theory of interpretation which, he argues, is the only kind of theory that canaccount for the interpretative nature of legal practice.

One of the main purposes of this book is to provide a critical assessment of thismethodological turn, and of some of the substantive issues it gives rise to; butbefore the argument can begin it is important to place this methodological turn inthe appropriate perspective.

Dworkin believes Hart, and many of his followers, to have presumed that anadequate account of the concept of law is, ultimately, an account of the meaningof ‘law’. It is with this, for the most part, that Dworkin now finds flaw in analyti-cal jurisprudence in general, and legal positivism in particular. The semantic basisof these theories, he argues, is a serious impediment, since it provides them with

1 Hart has also conceived of his jurisprudence in terms of a project in ‘descriptive sociology’. Thequestion of how these two projects, the analytic––conceptual one, and the sociological, happen to con-verge, is a difficult one to answer.

2 An Introduction: The ‘Semantic Sting’ Argument

no means of accounting for certain aspects of legal practice, those aspects which hefinds most in need of explanation. Let us take a closer look at this argument.

It is a widely acknowledged fact that we can make propositions about the law inany given legal system which are true or false. It is true, for example, that the lawin England imposes a speed limit on driving, and it is false that the limit is 100mph. It is also widely acknowledged that there are numerous problematic cases;competent lawyers often have serious disagreements about the law. Appellatecourt decisions are rife with disagreements between the judges on what the law is.Yet Dworkin rightly points out that not all of these legal disagreements are of oneand the same kind. Some are more profound than others, and in a rather specialway: they concern the very basic question of legal theory, namely, the question of‘What is law?’ More precisely, these theoretical disagreements (as Dworkin callsthem) are disagreements over the conditions of legal validity.2

A legal system is a system of norms. Validity is a logical property of norms in away akin to that in which truth is a logical property of propositions. A statementabout the law (in a given legal system) is true if and only if the norm it purports todescribe is a valid legal norm. Thus the statement that ‘the law in England imposesa speed limit on driving’ is true because there exists a legally valid norm to thateffect; and the statement that ‘the speed limit in England is 100 mph.’ is falsebecause no such norm is legally valid. (Or, to be more precise, the proposition:‘There is a valid legal norm in England according to which the speed limit is 100Mmph’, is false.) It follows that there must be certain conditions which render cer-tain norms, but not others, legally valid. Hence it also follows that there can be (atleast) two types of disagreement over the truth or falsehood of propositions aboutthe law. People can disagree over the question ‘What are the conditions of legalvalidity?’, in which case their disagreement is a theoretical one. Or they can agreeon the conditions of validity, and disagree as to whether or not those conditionsactually obtain in a given case or not.3

It is widely presumed, or so Dworkin contends, that it is only the latter kind ofdisagreement that one expects to find in courtrooms among lawyers and judges.They are expected to agree on the conditions of legal validity in their legal systems;arguments about the contents of the law on a given issue must be due to the factthat they cannot agree as to whether or not these conditions obtain. Lawyerswould all agree, for instance, that precedent in England has legally binding force;disagreement on a particular issue supposedly settled by the common law mustresult either from failure to find the relevant precedents or from an inability toagree on the appropriate interpretation of the precedents that have been found.

2 Dworkin coins the expression ‘grounds of law’ here, which, if I understand him correctly, is meantto capture those propositions that are taken to constitute the conditions of legal validity in a particularlegal system (1986: 4).

3 Dworkin (1986: 5) calls this latter type of disagreement ‘empirical’. This is not a very good label,though. Ascertaining what facts are is not necessarily an ‘empirical’ type of enquiry. For example, wewould not think that deciding on what moral facts are is a matter of an empirical enquiry.

An Introduction: The ‘Semantic Sting’ Argument 3

Theoretical disagreements about the conditions of legal validity are thought to bethe business of legal philosophers and jurisprudence courses in universities.

Whether or not this view is a widely shared one is questionable. In any case,Dworkin is surely correct in characterizing it as naïve and unrealistic. Theoreticaldisagreements do form part of legal reasoning; lawyers sometimes support theircases, and judge their opinions, with theoretical, and often controversial, consid-erations, about the appropriate conditions of legal validity. Dworkin goes to somelengths to show this through a careful analysis of several concrete ‘hard cases’ fromthe United States and England (1986: 15–30). Some of these, however, are moreconvincing than others. Not all would agree with him that, for example, disputesover the legal relevance of legislative intent and the legislative history of a statuteare best characterized as disputes over the conditions of legal validity. Be this as itmay, other examples can easily be provided. Thus, the dispute between variousversions of the binding force of precedents in English law, to take another ofDworkin’s examples, is indeed one which pertains to the question of legal validity;the difference between legal systems adhering to different rules on this matteramounts to a difference in the kind of norms recognized by each system as legallyvalid.

It is worth mentioning, however, that the kind of theoretical disagreement typ-ically encountered in such legal cases is not very deep. The type of theoretical argu-ment entertained by legal philosophers is one which concerns the concept of legalvalidity, and not the conditions of validity in a particular legal system. For a legalphilosopher, the main question is not whether precedent in English law is bindingin this or that manner; it is a more basic question of how is the previous questionto be decided: is it, for example, only a matter of conventions or is it also a matterof moral truths? But, of course, there is no reason why judges should not engagein such deeper controversies, and I presume that examples, though perhaps rare,can be found.

All this seems quite straightforward. However, it should not be, at least notaccording to Dworkin’s understanding of semantic theories of law, of which legalpositivism is, allegedly, a prominent example. ‘Our jurisprudence has no plausibletheory of theoretical disagreements in law,’ Dworkin (1986: 6) contends. Why isthis? What makes it a problem for legal positivism to account for theoretical dis-agreements in law? The argument, which Dworkin dubs the ‘semantic sting’, runsas follows: recent legal theories, particularly legal positivism, he claims, have beenessentially semantic theories, aiming to determine the meaning of ‘law’. They havepresumed that we follow shared rules in using any word, rules determining the cri-teria for the given word’s meaning. Legal positivism, then, is the thesis maintain-ing that ‘our rules for using “law” tie law to plain historical fact’ (1986: 31). This semantic approach, however, leads to an embarrassing dilemma. If lawyersand judges share semantic rules that determine the meaning of law, any furthertheoretical argument over what the law is would not make much sense. It wouldboil down to two alternatives. One would be to admit to facing a semantically bor-derline example, in which case the argument would become rather silly (like one


over whether a large pamphlet is a ‘book’ or not).4 The other would be to concedethat, contrary to the rhetoric, the argument was not really about what the law is,but about whether to follow the law or to change it. In other words, on this seman-tic approach, theoretical disagreements are either silly, or a kind of pretence. As wewould not wish to insult judges with the former option, we seem to be left with thepretence version; theoretical disagreements about the conditions of legal validityare in fact disguised arguments over what the law should be, how it is to bechanged, supplemented, and the like. But this raises a series of difficult questions:after all, why not take legal rhetoric at face value? Why is such pretence necessaryat all? And how can it have worked for such a long time—should judges keep theirfingers crossed that this pretence is never discovered?

All these are difficult questions, which does not mean, of course, that they cannot be answered. I shall not attempt to discuss the pretence story at this stage,however, as no such explanation is required if the ‘semantic sting’ is shown to havestung no one.5 This, I am afraid, is just the case, or at least that is what I shallargue.6

To begin with, there seem to be fewer semantic theories of law than Dworkin’saccount would suggest. In particular, since HLA Hart forms one of the express tar-gets of the ‘semantic sting’ argument, it would be fair to ask whether he actuallyadhered to the semantic approach attributed to him by Dworkin. Has he evermaintained that his account of the concept of law was in fact a semantic analysisof the meaning of the word ‘law’? If The Concept of Law is taken as the basic state-ment of Hart’s views, the answer will quite clearly be ‘no’. In fact, Hart was verydefinite as to the word ‘law’ having more than one meaning, and determined thatthe dispute between rival legal theories over the appropriate concept of law is ‘illpresented as a verbal one’ (1961: 204). The choice between rival concepts of lawmust be a reasoned one: ‘it must be because one is superior to the other in the wayin which it will assist our theoretical inquiries, or advance and clarify our moraldeliberations, or both’ (Hart 1961: 204–5). This would seem to be the most explicitrepudiation one could expect of the semantic approach. But of course, such state-ments do not necessarily settle the issue; after all, philosophers do not always holdto their programmatic proclamations.7 Nevertheless, something of the incon-gruity this would imply seems to have bothered Dworkin, as at some point he feels

4 Not everybody believes that such arguments are bound to be philosophically silly (though theywould be, practically speaking, pointless). Those who maintain the so-called ‘epistemic theory ofvagueness’ think that there is a truth of the matter about borderline cases of vague concepts, even ifthose truths are not knowable. See, for example, Williamson (1994).

5 I will discuss the rationality of judicial rhetoric in Chapter 6. 6 It is embarrassing, almost shameful, that we have made a mistake in mislabeling Dworkin’s argu-

ment as the ‘semantic sting’ argument. As Joseph Raz pointed out to me a few years ago, Dworkin(1986: 44–45) actually calls the legal positivists’ argument the semantic sting, not his own counter-argument. But I think that this mislabeling has taken root by now, and with appropriate apologies toDworkin, I will continue to use the ‘semantic sting’ as a label for Dworkin’s own argument.

7 Dworkin is not the only one who offers this semantic interpretation of Hart: see eg Coleman(1982) and Soper (1987: 1171).


that the fallacy he has revealed is so transparent as to require a diagnostic explan-ation of how the semantic approach could be maintained without anyone notic-ing its fallacy. He concludes that the semantic theorists suffer from a ‘block’: they must have presumed that if lawyers follow different rules in using the word‘law’, then no genuine disagreement between them on the question ‘What is law?’could be seen as an intelligent debate. Each lawyer would simply mean somethingdifferent from the other when saying what the law is. Such an argument would beas pointless as an argument over ‘banks’, in which one person is referring to river-banks and the other to commercial banks. Semantic theorists must thus have con-cluded that unless lawyers and judges follow the same rules in using the word ‘law’,there would be no genuine arguments over the question ‘What is law?’ to accountfor (1968: 43–44).

Unfortunately, this diagnostic explanation is even more puzzling than what itaims to explain. To begin with, it is important to realize that the logic of the argu-ment could be turned against almost any other philosophical question besides thisone. Consider, for instance, the question, ‘What is knowledge?’ upon which epis-temology turns. The semantic sting argument would seem to hold here as well: ifit is presumed that people share a semantic understanding of the meaning of‘knowledge’, then either philosophers are quarrelling over borderline examples(and have done so for almost two thousand years), in which case they are actingfoolishly, or else they are indulging in a kind of pretence (and acting what?).

But of course, this is a spurious dichotomy. There is a clear sense in whichpeople can be said to know the meaning of a concept-word, without being able toarticulate a correct theory about what it signifies. We use numerous concept-words according to the appropriate rules of language without being able to provide a complete explanation of the concept-word’s reference.8 Sometimes this issimply a matter of ignorance; most of us, I suspect, know very little about thechemical composition of plastic, yet we all know what ‘plastic’ means. Other casesare more complex in this respect. Philosophers’ disagreements over the concept ofknowledge, for instance, do not manifest an ignorance; they are theoretical disagreements over the best way to understand that which the concept-word‘knowledge’ actually refers to. Nor is it usually taken for granted that such concept-words have one meaning only. On the contrary, an analysis of the ordin-ary uses of such concept-words usually reveals a multiplicity of things meant bypeople in various uses of the word, and, as Hart aptly emphasized, it remains forus to propose a reasoned choice between the various uses we have revealed, achoice based on theoretical, rather than semantic considerations. In short, the factthat people have genuine disagreements about what a concept refers to does notentail that they do not know the meaning of the word, or that the disagreement isnecessarily over borderline examples. But then why should this option be denied

8 It is quite remarkable that at some point Dworkin himself provides an example without realizingits full significance: ‘We all use the word “cause”, for example, in what seems to be roughly the sameway . . . yet most of us have no idea of the criteria we use . . . it falls to philosophy to explicate these forus’ (1986: 31).


to lawyers and judges? Why should they not be able to have genuine argumentsabout the question ‘What is law?’ which neither concern borderline examples normanifest semantic misunderstandings of any kind?

It seems that the only way of understanding these perplexities involves a recog-nition that what Dworkin is arguing against are not really semantic theories of lawbut conventionalism in general. In other words, the ‘semantic sting’ argument is,in fact, a new version of an old controversy argument against conventionalism.Dworkin has long argued for the existence of an irreconcilable tension between theconventionalism espoused by legal positivism and the controversial nature of legalreasoning. As the argument is stated in several ways in Dworkin’s writings, it is noteasy to provide a single definitive formulation of it. The essential point, however,seems to be the following. According to legal positivism, the conditions of legalvalidity are determined by the social rules and conventions prevalent in a givencommunity. These conventions identify which actions or procedures create thelaw, or in other words, they identify the sources of law. An additional thesis of legalpositivism is that the law is essentially source based. This means that a norm can-not be legally valid unless it derives its validity from one of the sources identifiedby the pertinent conventional rules.9 (Hart has further maintained that in anygiven legal system these conventions can be formulated by one master rule, theRule of Recognition.) Now, according to Dworkin, this conventional account oflaw’s validity cannot explain how the law is able to impose obligations in contro-versial cases. Conventions, Dworkin assumes, manifest a pattern of agreement, aconvergence of beliefs; once their application turns out to be controversial thereare no grounds for further argument on the basis of these conventions, as exhypothesi, they have exhausted their binding force. Hence on this conventionaltheory of law, there is no binding law in controversial cases. But this latter conclu-sion, Dworkin argued, cannot be maintained. Lawyers and judges regard numer-ous norms as legally binding, despite their undeniably controversial nature. Thushis conclusion that because legal positivism is committed to the view that law isuncontroversial, legal positivism is patently false.

Now it is not difficult to see that the ‘semantic sting’ argument is a reformula-tion of this old controversy argument. Viewed from the vantage point of contem-porary theories of language, legal positivism amounts to a conventionalist, that is,anti-realist, position on the meaning of ‘law’. For those who claim that law isessentially a matter of social conventions, law is, ipso facto, what a community oflawyers and judges thinks that it is. On a conventionalist account, there is nothingmore to law, that is, to the conditions of legal validity, than that which is perspic-uous in the rules and practices which people actually follow. But then it seems thatif Dworkin is right about the legal reasoning of lawyers and judges (at least in the

9 Legal positivists are divided on the appropriate interpretation of this thesis. Most contemporarypositivists maintain that it is possible, though not necessary, for moral considerations to determine thelegal validity of norms, as long as such moral considerations are derivable from the conventional rulesof recognition. For my understanding of the various versions of this idea, and my reasons for rejectingit, see Marmor (2001: ch 3).


common law systems), conventionalism would be self-defeating: if lawyers andjudges recognize as legally binding not only those norms which are uncontrover-sially identifiable under the Rule of Recognition, that is, if what they recognize asbinding is not only source-based law, then conventionalism turns out to be falseon its own terms. In other words, either law is not what lawyers and judges thinkthat it is, in which case law is not a matter of conventions, or—if it is what lawyersand judges think— conventionalism is false, as they do not see the law as purely amatter of conventions.10

It remains to be seen whether or not this allegation against conventionalism issound, and I would like to believe that the rest of this book would show it is not.Nevertheless, once the ‘semantic sting’ argument is seen in the light suggestedhere, namely, as an overall objection to conventionalism, I think it becomes easierto understand and consequently recognize the importance of Dworkin’s inter-pretative turn. The theory of interpretation he proposes is not a substitute for‘semantic theories of law’ (which may not have been really espoused by anyone),but a new conception of jurisprudence, aiming to present itself as a comprehen-sive rival to the conventionalism manifest in legal positivism. Furthermore, oncethe interpretative turn is regarded as an overall challenge to conventionalism, it iseasier to see why it does not confine itself to a critique of method. Law as inter-pretation calls into question the main tenets of its positivist rival, in substance aswell as method. This book sets out to re-examine legal positivism in the light ofthis interpretative challenge.

10 A very similar interpretation of Dworkin’s argument has been recently endorsed by KennethHimma (2002: 165ff)


2

Meaning and Interpretation

BEFORE EMBARKING ON the main project of this book, which is toexamine the concept of interpretation in law and legal theory, it might beuseful to attempt an analysis of the concept of interpretation itself. But how

should one go about such an analysis? The multifarious uses of ‘interpretation’ mayprove quite confusing. This is not to say we should ignore the ordinary meaningsof ‘interpretation’, but only that they should be treated with caution. First, becausethe concept of interpretation is vague, which means that there are bound to benumerous borderline cases of ‘interpretation’. More importantly, interpretationhas both a broad and a narrow sense. In its broad sense, interpretation is often used,somewhat loosely, to mean any kind of ‘explanation’, or ‘understanding’ or ‘theo-rizing’ or such. When a scientist is looking though the microscope we could say thatshe is trying to interpret what she sees. That is perfectly all right, but not very help-ful. Here, and in many other cases, ‘interpretation’ and ‘explanation’ are used inter-changeably. But there is also a narrow sense of interpretation which does not standfor just any kind of explanation or understanding. Literary critics, theologians, andjudges, to take a few familiar examples, typically engage in a kind of reasoningwhich we distinctively call interpretative. When judges interpret the law, they donot purport to explain it. Similarly, musicians debating the appropriate way to perform a Mozart sonata would not be described as arguing about the explanationof the sonata, or Mozart, or whatever; their argument is, again, a distinctly inter-pretative one. In other words, there is a fairly clear sense in which we use the word‘interpretation’ to designate a unique type of reasoning or understanding.

But what is it that makes interpretation unique in this narrow sense, differentfrom any other form of understanding or explanation? Presumably this: roughly,interpretation can be defined as an understanding or explanation of the meaning ofan object. This, I will assume, is the sense in which the concept of interpretation isnarrower than that of explanation. Hence also, only those objects which are capableof bearing some meaning qualify as potential objects of interpretation. These aretypically, but not exclusively, acts or products of communication, such as utter-ances, texts, works of art, etc. Forms of behavior, social practices, rites, and perhapseven dreams, also seem capable of bearing some meaning, due to which they too arecited and perhaps rightly so, as possible objects of interpretation.1

1 Timothy Endicott (1994) suggested a much simpler idea instead: he claims that interpretation issimply an answer to a question of the type––‘What do you make of this?’, and that this does not necessarily tie the concept of interpretation to that of meaning, as I suggest there. I do not find this

This, however, would seem to advance us very little, as it still remains to be seenwhat the appropriate conception of ‘meaning’ is. Nevertheless, defining interpre-tation in terms of the attribution of meaning is a convenient move considering theextensive attention paid by contemporary philosophers to the analysis of meaning.I thus propose to begin the analysis of the concept of interpretation by way ofdefining the appropriate notion, or notions, of meaning involved in this concept.

More specifically, I shall begin this discussion by questioning the possibility ofperceiving the concept of interpretation from the viewpoint proposed by DonaldDavidson’s theory of radical interpretation. The choice seems to me to be justified,partly because some philosophers assume that this particular theory of meaningwas meant to provide the basis for a general theory of interpretation, (or could beextended to encompass one).2 Mainly though, because I hope that the discussionwill illuminate certain important differences between the concerns of interpreta-tion and those of semantics. I shall then go on to examine the possibility of con-ceiving the concept of interpretation in terms of the notion of meaning asconstrued by pragmatics, arguing that although the interests of the two overlap,interpretation and pragmatics presuppose potentially different criteria of success.

It should be noted in advance that this chapter will not provide a comprehen-sive account of the concept of interpretation; it only prepares the ground for thesubsequent discussion which will analyze in further detail some of the issues discussed here.

1. RADICAL INTERPRETATION

The general concern of semantics, since Frege and Wittgenstein, can be character-ized as the analysis of meaning; or summed up in a somewhat different version(for instance Dummett’s), in the question ‘What is it to know what a linguisticexpression means?’ One of the dominating theories in this field is that of truth-conditional semantics. The basic idea here is that knowing the meaning of a sentence is knowing what has to be the case for it to be true or false. In other words,truth-conditional semantics maintains that one has grasped the meaning of a sen-tence if and only if one is able to specify the conditions which render it true orfalse. Since only a relatively small number of actual sentences can be said to havetruth values, truth-conditional semantics introduced a rather special notion ofmeaning, employing Frege’s distinction between the sense of a sentence and itsforce. (The latter has meanwhile come to be called ‘illocutionary force’.) Thenotion of truth conditions is meant to be an explication of the sense of a sentence,

particularly helpful, mostly because it ignores the distinction between the broad and narrow senses of‘interpretation’. Indeed, the question ‘What do you make of this?’ can be asked, and answered, justabout anything in almost any context. Nor is it clear whom ‘you’ refers to in this question and whywould it be of any interest what ‘you’ make of it. Unless, of course, ‘What do you make of it?’ is simplysynonymous with ‘What is your interpretation of this?’, in which case we are back to square one.

2 See eg Wallace (1986: 211–34); Root (1986); McGinn (1986).

10 Meaning and Interpretation

which is taken to be the core of the theory. The assumption is that each well-formed sentence has a sense that is distinguishable from its illocutionary force.One can assert that such-and-such is the case, ask whether it is the case, wish thatit were the case, and so on.3 The assumption is that the component of senseremains basically constant in spite of variations of the illocutionary force.

Now Davidson endorses this conception of ‘meaning’ and much of the theoret-ical burden attached to it. Yet his own theory of meaning is guided by a ratherunique perspective on truth-conditional semantics, which—under the influenceof Quine’s (1960) ‘radical translation’ theory—he calls ‘radical interpretation’.

A full presentation of Davidson’s theory of radical interpretation would farexceed the scope of this chapter, and is in any case unnecessary. My interest lies inthe range of this theory rather than its merits; what it is about, and how far, if atall, it can be conceived of as the basis for a theory of interpretation. In other words,granted that the theory is true, my main question is what is it that it states and pro-vides? More particularly: Does it provide the basis for a theory of interpretation?

Unfortunately, Davidson himself is not sufficiently clear on what radical inter-pretation is about. He says, ‘All understanding of the speech of another involvesradical interpretation’ (1984: 125). This, it would seem, can only be taken as a stipulative definition of certain aspects of that which renders communication pos-sible. The question remains, which aspects? No definitive answer to this is offeredwhen Davidson comes to state the aims of his theory. Consider the followingremarks:

We interpret a bit of linguistic behavior when we say what a speaker’s words mean on anoccasion of use.

The theory may be used to describe an aspect of the interpreter’s competence at under-standing what is said. (1984: 141)

Having identified [his] utterance as intentional and linguistic, we are able to go on tointerpret his words: we can say what his words, on that occasion, meant. What could weknow that would enable us to do this? How could we come to know it? (1984: 125, myemphasis)

The problem is that the question of what words mean on an occasion of use is equivocal. Davidson claims to be interested in the question of what could consti-tute sufficient knowledge on the part of an interpreter which would enable him tointerpret each one of the potentially infinite utterances made in his linguistic com-munity. But this question can be understood in (at least) two distinct ways. On avery broad reading, it aims at an explication of linguistic communication. In amuch more limited sense, it has to do with the explication of sentence meaning.

The gap between the two alternatives is fairly obvious. Consider the utterance,‘Do you know an honest politician?’ In one clear sense, knowing what the wordsmean on an occasion of use would be insufficient for understanding what thespeaker meant, or was trying to communicate. Such knowledge would fail to clarify whether it was a genuine question, a sarcastic remark, an exclamation of

3 For a criticism of the distinction between sense and force, see Baker and Hacker (1984a: chs 2–3).

Radical Interpretation 11

despair, and so on. On the other hand, some of Davidson’s formulations seem toindicate that what he has in mind is a much wider question. For instance, hisemphasis on notions such as ‘linguistic behavior’ or his interest in the ‘occasion ofuse’ etc. All this would seem to imply that we should, perhaps, understandDavidson’s project as much broader than an explication of sentence meaning.Radical interpretation would then be a theory aiming at the explication of thatwhich renders possible the understanding of linguistic communication in general.Which concept of interpretation did Davidson have in mind? Which concept canhis theory account for?

On the assumption that each competent member of a linguistic community isby and large capable of interpreting all the possible utterances of a speaker in thatcommunity, a theory of radical interpretation basically describes what peoplealready know. As Davidson puts it, ‘the theory is true if its empirical implicationsare true’ (1984: 142). In other words, the radical interpretation of a natural language can be looked at in terms of a meta-language, which we would want tosee as entailing empirically correct interpretations of the object language. Toaccount for this relation of entailment, Davidson employs, with appropriatemodifications,4 Tarski’s Convention––T. For each sentence s of the object lan-guage, a T–sentence is a theorem of the form:

‘s is true if and only if p’, where ‘s’ is replaced by a description of s, and ‘p’ is replaced bya sentence that is true if and only if s is. (1984: 150)

But once this model is applied to the interpretation of an object language, correctinterpretations would be entailed only if certain constraints were added. We wanttheorems of the form ‘snow is white’ if and only if snow is white, and not forinstance, ‘snow is white’ if and only if grass is green: the T–sentences must give thecorrect meanings of the object-language sentences (1984: 150). How is this to beachieved?

First it must be clear what is taken to be the data, and what constitutes theexplanandum. Following Quine, Davidson contends that what one means by anutterance, and what one believes, are interconnected notions: one’s beliefs cannotbe inferred from an utterance without knowledge of what one means, and con-versely, what one means without knowledge of what one believes (1984: 195–96).Thus, the only thing which can be taken as given, Davidson argues, is one’s pre-positional attitude of holding sentences true or false in each particular context.Hence, the challenge of radical interpretation is this: ‘we suppose we know whatsentences a speaker holds true, and when, and we want to know what he meansand believes’ (1984: 145). The question is, of course, how should one proceed fromhere? Davidson’s main answer is based on the principle of charity:

4 The most important modification introduced by Davidson is that he takes the notion of truth asgiven, or primitive, while Tarski was interested in a formal definition of truth for a formal language(1984: 134; 1990: 299). Note, however, that Davidson is anxious to retain the recursive aspect of theTarskian model.


The general policy . . . is to choose truth conditions that do as well as possible in makingspeakers hold sentences true when (according to the theory and the theory builder’s viewof the facts) those sentences are true. (1984: 152)

The function of this principle should not be overstated, however. As Davidsonwarns, the task in question is not an absurd one of making disagreement or errorimpossible. The principle of charity is based on the assumption that mistake ordisagreement is only comprehensible against some agreed background (1984:153). But this is an heuristic principle which serves to constrain a theory of mean-ing for a natural language, and not every potential disagreement one can think of.(The importance of this constraint will be clarified later.)

Furthermore, Davidson does not maintain that the theory will yield only onepossible interpretation for each sentence of a natural language. Indeterminacieswill occur, but this is hardly surprising, and should not be regarded as grounds forobjecting to the theory. After all, language is, to some extent, indeterminate (1984:154).

Be this as it may, we are now in a position to answer my initial question, namelywhat is the scope of this theory? I wish to argue that radical interpretation can only(if at all) be an explication of sentence meaning, and cannot account for anythingfurther than this. I shall argue that this fact is instructive of an important aspect ofthe concept of interpretation.

Let me begin by considering Davidson’s (1986) critical reflections on his owntheory.5 Here he seems concerned with a question very similar to the one pre-sented above. Davidson claims that theories of meaning, including his own theoryof radical interpretation, only describe an interpreter’s ‘linguistic competence’,that is, a person’s ability to understand the meaning, or what he now calls ‘firstmeaning’, of sentences. The gist of Davidson’s argument in this article is that lin-guistic competence (thus defined) is insufficient to account for numerousinstances of successful interpretations where the speaker’s use of language is insome way idiosyncratic. Davidson focuses his attention on phenomena such asmalapropisms, or more generally, the ability to interpret idiolects.6

It is instructive to see how Davidson defines linguistic competence. On hisdefinition, it is that which enables interpreters to interpret ‘first meanings’, whichin turn is characterized as having to be systematic, shared, and conventional(1986b: 436). Systematic relations must obtain between the utterances; otherwisethere would be no way of accounting for the semantic relations between words andthe structure of sentences. If a word is used to mean x in a given sentence, it must,by and large, mean x when used in other sentences in the same language. By the

5 Although not the most recent; in the 1989 Dewey lectures (Davidson 1990) he provided an impres-sive overview of his semantics, reverting to most of his previous ideas. The critical reflections presentedhere are not restated in the lectures; in fact they are, by and large, ignored.

6 Davidson’s focus on Malapropism is somewhat puzzling. First, it is not clear that Malapropism isa real phenomenon; mostly, however, because it is a rather extreme case of linguistic idiosyncrasy; wecan often understand a speaker even if her use of language is somewhat idiosyncratic, without being soweirdly erroneous as Mrs Malaprop.


idea that first meanings must be shared, Davidson refers to what is often called thepublic aspect of meaning. Language could not be used for communication if themeanings of the words and sentences were not known (and known to be known)to both the speaker and the interpreter. Lastly, the requirement that first meaningsbe conventional is of crucial importance: it points to the fact that the use of lan-guage is rule governed.7

Now we can return to Davidson’s main argument. As shown clearly by thesecharacterizations of first meaning, phenomena such as malapropisms introduceinstances of interpretation which are inexplicable in terms of an interpreter’s ‘linguistic competence’. Accordingly, Davidson draws a distinction between‘prior’ and ‘passing’ theories:

For the hearer, the prior theory expresses how he is prepared in advance to interpret anutterance of the speaker, while the passing theory is how he does interpret the utterance.For the speaker, the prior theory is what he believes the interpreter’s prior theory to be,while his passing theory is the theory he intends the interpreter to use. (1986b: 442)

Unfortunately, it is not at all clear here whether Davidson is referring to the well-known distinction between what a speaker means and what his words mean.Dummett construes this distinction somewhat differently. The line he draws fallsbetween how the utterer ‘wants the hearer usually to understand certain wordsthat he has uttered, and how he wants him to understand that particular utteranceof them’ (Dummett 1986: 461). Yet it is doubtful that this is more successful incapturing what Davidson strives to account for, since Mrs Malaprop for instance,can hardly be said to have known the correct meaning of the words she uttered. Inthat case, Davidson would perhaps have done better to retain the traditional distinction between speaker’s meaning and utterance meaning after all.

More importantly, the term ‘theory’ is misleading here. Prior theory would bet-ter be described as the ability to use the language. This amounts to a cluster ofcapacities but not to a theory.8 With regard to the passing ‘theory’, it is even clearerthat whatever it is that enables one to interpret an idiolect does not amount to atheory one possesses. Does it make sense to say that Mrs Malaprop has a theoryabout the theory she intends her hearers to use? Or that the hearers have a theoryabout her theory?

Bearing these points in mind, I shall nevertheless go on using Davidson’s terminology. Thus the gist of his argument here is that the passing theory cannotbe explicated in terms of linguistic competence, because ‘there are no rules forarriving at passing theories’ (1986b: 446, emphasis mine). Hence the rather unusualconclusion of his article, that ‘there is no such thing as language, not if a languageis anything like what many philosophers and linguists have supposed’ (ibid).

7 Davidson seems to have changed his mind on certain aspects of this point, as compared with hisprevious writings (1984: 265–80). Notably, one of Hacker’s main criticisms of Davidson’s work con-sists in the claim that Davidson does not realize the full implication of this essential feature of language.See Hacker (1988), but cf Davidson (1990: 316).

8 Cf Dummett (1986: 467); see also Hacker (1988).


The soundness of this last conclusion is not our concern here.9 We are inter-ested in the possible scope of radical interpretation. It is clear enough thatDavidson now sees his theory of radical interpretation as, at most, an account ofprior theories. It is limited to an explication of the concept of first meaning andcannot, as a matter of principle, be extended to encompass passing theories. Thisis so, as the construction of what Davidson calls passing theories is under-determined by rules or conventions. On the other hand, radical interpretation ini-tially proposes a recursive characterization of the concept of meaning, given byConvention–T. Under radical interpretation we assign to every sentence of theobject language a T–sentence of the form: ‘“s” is true if and only p’. This definitionmakes no allowance for idiosyncrasies. Indeterminacy is a different matter. It canbe the case that even when the evidence is exhausted, we will end up with the con-clusion that, for example, ‘ “s” is true and only if p’, or ‘ “s” is true if and only if q’.But the problem we now face is not indeterminacy but idiosyncrasy. What we needis an account of, for instance, how an interpreter can understand a speaker utter-ing ‘s’ to mean that p, whereas the correct T–sentence of ‘s’ is that it is true if andonly if q (as in the case of malapropism).

To put it differently, though perhaps in a way that Davidson would not, what isneeded is an account of the distinction between those aspects of communicationwhich are determined by rules, and those which are not. To my mind, this is thekey to the distinction, which Davidson’s radical interpretation obscures, betweenthe concepts of interpretation and semantic meaning. Semantics, as opposed tointerpretation, concerns those aspects of (linguistic) communication which arerule or convention governed. This is manifest in the kind of reasons one wouldtypically provide for the explanation of the meaning of an expression as opposedto the interpretation of an expression. In explaining the meaning of a given expres-sion, we typically refer to the rules of the pertinent language; but such rules arenormally unavailable as reasons or justifications for an interpretation. On the con-trary, interpretation is usually required because the issue is not determined by rulesor conventions. To be sure, rules should not be confused with paradigms.Interpretation, like other intellectual activities, can be, and often is, guided by theparadigms of interpretation prevalent in a certain ‘interpretative community’.These are typically examples of what count as good or acceptable interpretationsin the given domain (see Fish 1980). But paradigms do not function like rules.They can be respected and emulated, but not followed, as are, for instance, rulesof the correct use of language. Deviating from an established paradigm—unlikefailing to follow the rules of language—does not necessarily manifest a mis-understanding. Unconventional interpretations, idiosyncratic or crazy as theymay be, are nevertheless possible interpretations; but Humpty Dumpty’s private‘language’ is not language at all.10 Hence the conclusion that interpretation should

9 For criticisms of this conclusion, see Hacker (1988: 169–71); Dummett (1986).10 On the distinction between paradigms and rules, see also Kuhn (1970 ch 5).


not be equated with understanding the meaning of an expression, but be seen asparasitic on the latter. Let me expand on this point in some further detail, since itis of crucial importance.

Recall Davidson’s contention that ‘All understanding of the speech of anotherinvolves radical interpretation’ (1984: 125). As we have seen, Davidson must havemeant this as a stipulation. But stipulative definitions are sometimes misleading.And in this case, I shall argue, Davidson’s stipulation obscures the special role thatthe concept of interpretation plays in the understanding of an expression.Dummett rightly observed that:

when the hearer does not have to search for the speaker’s meaning, but takes for grantedthat he is using words in just the way with which he is familiar, there is . . . no process ofinterpretation going on.

A crucial observation made by Wittgenstein in his discussion of following rules is that‘there is a way of grasping a rule which is not an interpretation’ (Investigations, 201).Similarly, there is a way of understanding a sentence or an utterance that does not con-sist in putting an interpretation on it. (Dummett 1986: 464)11

In short, one does not interpret that which is determined by rules or conventions.One can of course point to the rule or convention, and explain it to those who areunaware of the rule or its content. That, however, does not constitute an interpre-tation of anything.

Of course it is true that in ordinary cases, or most of the time, people do notreflect upon the meanings of the words they use, and I would assume thatDavidson does not deny this. As Dummett puts it, ‘in the normal case . . . thehearer simply understands. That is, knowing the language, he hears and therebyunderstands’ (ibid 471). Dummett does not indicate any disagreement with thisobservation on Davidson’s part. It is equally clear that interpretation does consist,at the very least, in the reflection upon the meaning of words and sentences orwhatever it is we strive to interpret. In other words, interpretation must consist, atthe very least, in one’s ability to specify (to oneself or others) how one understandsa given expression. But now, this observation, as Dummett rightly emphasizes,makes it clear that interpretation must be an exception to the standard instances ofunderstanding expressions, as it requires the existence of a language in which, andabout which, the interpretation is stated. Even in the case of the supposedly sim-ple thought that an utterance means what it literally states, ‘having that thoughtwill not result in attaching the standard meaning to [her] utterance unless I knowwhat that standard meaning is’ (ibid 464).12

Properly speaking, then, ‘radical interpretation’ is not a coherent phrase, perhaps not even as a stipulative definition, that is, if what it suggests is that the

11 Dummett is interested in the case of natural language, but the same point can be made withregard to other forms of communication, eg visual arts or music. Cf Barnes (1988).

12 See also Hacker (1988: 168). Notably, this also shows that unlike the concept of grasping themeaning of an expression, the concept of interpretation typically designates an activity; interpretationis something which must be carried out. In this respect, interpretation is closer to the concept of expla-nation than to that of understanding.


explication of the meaning of expressions in natural language is basically a matterof interpretation, only more radically so. If A is an exception to B, and parasitic onit, then it makes no sense to suggest, or even to stipulate, that A is ‘radical B’(unless, of course, ‘A’ in the second phrase means something quite different). Inany case, one should realize that Davidson’s use of ‘interpretation’ utterly obscuresthe conceptual point made here by Dummett, that any reflection on the meaningsof words, sentences, etc, is parasitic upon the prior knowledge of the ordinary orliteral meanings.13

This leads to the conclusion that understanding or explaining the meaning of anexpression and interpreting it, are two conceptually separate things. It also indi-cates that semantics can only be employed, if at all, to elucidate the concept ofinterpretation by way of contrast: interpretation concerns those aspects of com-munication which are under-determined by semantic rules or conventions.

Before proceeding, perhaps it should be asked whether it is possible to extendthe scope of Davidson’s theory, in one form or another, so as to encompass abroader sense of interpretation. The idea here would consist in the application ofthe principle of charity, but with regard to a different set of assumptions, perhapsless ‘radical’ than those of Davidson’s original project. In the next chapter I willconsider some attempts to do this in the context of social explanation. Here, I shallconfine myself to the following remark: whatever form an account of somethinglike a passing theory might take, such an account could not employ the principleof charity, since this principle is not applicable to particular instances of interpre-tation. As Davidson himself emphasizes, the principle of charity makes sense onlyupon a thoroughly holistic, ‘across-the-board basis’ (Davidson 1984: 153). Itwould be wrong to suggest that a particular utterance or text, or any subclass oflanguage, should be interpreted with an underlying charitable aim, as it were.There is simply no inherent connection between the concepts of understandingand agreement; often the best explanation is that which brings a certain disagree-ment to light. In other words, the principle of charity amounts to the claim thatone cannot have a theory of meaning for a natural language whereby the bulk ofthe speakers’ beliefs would turn out to be false. But this only makes sense withrespect to language and thought as a whole, not to bits and pieces of it.

2. PRAGMATICS

A different attitude, though largely motivated by the type of problem discussed inthe previous section, is to be found in theories of pragmatics. Roughly speaking,pragmatists are generally concerned with the problems posed by discrepanciesbetween utterer’s meaning and sentence meaning, that is, between what an utterermeans and what his words or sentences mean. Thus it seems that theories of

13 This point is discussed in further detail on the basis of Wittgenstein’s account of following a rule,in Chapter 7.

Pragmatics 17

pragmatics are concerned with basically the same question that we discussedabove, namely, that of an interpreter’s ability to construct a passing theory, or, asI would prefer to put it, the question of an interpreter’s ability to understand anexpression (or an aspect of it) which is under-determined by semantic rules.

The origins of pragmatics are traditionally associated with the Griceian communication-intention theory of meaning (Grice 1957).14 The basis on whichGrice’s theory may be understood is the distinction between two important sensesof ‘meaning’: the meaning of an expression, which is what interests semantics, andsomeone meaning that such-and-such by a given expression, which was whatinterested Grice. He set out to provide an explication of the concept of someonemeaning something by an utterance (non-naturally or non-standardly, as hecalled it) in terms of intentions to communicate. According to Strawson’s (1964)reformulation, for a speaker, S, to mean something by x he must intend—

(a) S’s utterance of x to produce a certain response r in a certain audience A;(b) A to recognize S’s intention (a);(c) A’s recognition of S’s intention (a) to function as at least part of A’s reason for A’sresponse r.

What is the connection between this analysis of meaning that such and such by anexpression, and the meaning of the expression? Can the latter be analyzed in termsof the former? In at least one important respect the answer is negative. As Searle(1986) has rightly observed, an attempt to explicate the meaning of expressions interms of intentions to communicate would leave at least one important aspect ofmeaning unexplained, that is, its public and conventional feature. Searle’s argu-ment cannot be explored in detail here. Suffice it to say that the Griceian analysisof meaning in terms of intentions to communicate seems too private, as it were; itwould not capture that aspect of language which renders it public and learnable.15

Whether or not this is a correct allegation against the Griceian model is not ourimmediate concern. What I want to claim is that this intuition, in one form oranother, has led pragmatists (such as Searle himself) to employ the basic notionsof sentence meaning derived from truth-conditional semantics. As we have seen,however, the most we can get by truth-conditional semantics is the concept of firstor literal meaning explicated in terms of sense and illocutionary force. Quite often,though, literal meaning is not what is communicated. Hence the possibility of dis-crepancy between what words or sentences mean (that is, first meaning) and whatan utterer means (that is, communication intention).

Thus, one way to view what pragmatics is about is to see it as an attempt to fillthis gap between literal meaning and what is actually being communicated. In

14 Grice has since modified the details of his analysis in a series of articles and lectures. For a surveyof Grice’s views on the subject, see Grandy and Warner (1986).

15 The communication-intention theorists typically tend to provide an explanation of the publicaspect of language in terms of its natural evolution. However, the point here is different; it regards thelack of a conceptual account of what it is for a sentence to have a meaning in this public-conventionalsense. See Strawson (1969).


other words, it may be understood to attempt a ‘reconciliation’ between truth con-ditional and Griceian semantics. The key to this ‘reconciliation’ is usuallydescribed in terms of the necessary and sufficient contextual knowledge which isrequired to understand an utterance. Yet the concept of context should be treatedwith caution here. The word ‘context’ is usually associated with elements of local-ity and contingency; it is something particular and immediate, as opposed to themore general and lasting. However, as we shall see in a moment, many instancesof communication, though they require some knowledge which goes beyond theliteral meaning of words and sentences, are nevertheless conventionally deter-mined. In such cases, the context is a matter of convention. Some familiar uses ofindirect speech-acts are good examples of this phenomenon. To mention one suchexample; the question ‘Do you have the time?’ is not, in normal circumstances, aquestion about possession, but a request to provide a certain piece of information.Hence there is a certain discrepancy here between the literal meaning (in this case,the grammatical mood of the sentence), and the actual content of the communi-cation. Nevertheless, this is an instance of communication which is convention-ally, though not semantically, determined. But, of course, this is not always thecase: the pertinent context, knowledge of which is required to grasp the appropri-ate communication intention of the speaker, is often of a kind which is not governed by rules or conventions.

Let me mention two such general cases where the success of communication iscontext-dependent in a non-conventional manner. The first is the grammaticalunder-determinacy of literal meaning. A rather familiar idea, though differentlypresented, is the view that the understanding of literal meaning is always precon-ditioned by some kind of background knowledge. This position can be traced backto Wittgenstein’s notion of ‘form of life’ as a prerequisite for language use (1958,sects 142, 241–42; see also Dreyfus 1980), but I will present Searle’s more recentformulation of this idea (1978). He argues that the literal meaning of a sentencehas application only relative to a set of contextual or background assumptions.Consider the assertion ‘The cat is on the mat’. In normal circumstances we knowwhat this sentence means only because we share a whole set of assumptions about,for instance, the gravitational force surrounding us, the cat, and the mat. It is safeto say that on hearing this sentence no one would assume that the cat was hangingon the edge of a vertically standing mat. Yet were we to assume a very differentenvironment in which ‘the cat is on the mat’ was uttered, that might be the precisemeaning of such an utterance. Picture, for example, some bizarre experiment withcats and mats held in outer space by two astronauts.

Notably, the literal meaning of the sentence is variable; ‘the cat is on the mat’has different truth conditions in each of the two situations and this variance iswholly context dependent. However, the crucial point, as far as Searle’s argumentis concerned, is not that background knowledge is required so as to determine lit-eral meaning, but that this background knowledge is in principle semanticallyindeterminable. The contextual assumptions which are conventionally deter-mined can be semantically represented and added to the sentence. Yet in the

Pragmatics 19

present case, Searle argues (1978: 216), the contextual assumptions cannot be real-ized in the semantic structure of the sentence. First, that is because they areindefinite in number. The meaning of (probably) any sentence can be changed byan indefinite number of sets of contextual assumptions. Secondly, any literal state-ment of these contextual assumptions would itself be context dependent in thesame way.16

The second, and more familiar type of situation in which the success of com-munication depends on context is the Griceian notion of ‘implicatures’. Ever sinceGrice presented this notion it has become the most widely discussed issue in theliterature of pragmatics (Levinson 1983: 97–166). The notion of implicaturestands for the contextual assumptions which are required to account for a suc-cessful instance of communication where the context consists in a particular stateof affairs, knowledge of which must be shared by the speaker and the hearer.Consider, for example, the following conversation:

A. Do you have the time?B. Yes, we are exactly five minutes late.

Assuming the success of this instance of communication between A and B, theimplicature in this case is quite obviously the mutual knowledge that a particularevent is supposed to begin at a particular time. Pragmatists find two main featuresof implicatures puzzling. First, that successful communication depends on themutual knowledge of the relevant contextual background.17 Second, the inferenceof the communication content from the literal meaning and the contextual back-ground assumptions is, as the example shows, logically indeterminate (that is, it isa non-demonstrative inference) (Levinson 1983: 116). Why pragmatists find thesefeatures of implicatures so problematic is itself somewhat mysterious, but we neednot go into this here.18 Suffice it to say that in such cases communication is clearlyunder-determined by rules or conventions.

All this would seem to suggest that the interests of pragmatics and interpreta-tion converge at least on one point: both address that aspect of communicationwhich is not explicable in terms of following rules or conventions. Interpretation,as we have seen, is not a rule––or convention––governed activity. Hence, to theextent that interpretation concerns communication, it apparently concerns thevery same problem tackled by pragmatics, namely, that of an interpreter’s abilityto understand an expression, or an aspect of it, which is not determined by rules

16 See also Searle (1980: 221–32).17 Pragmatists have found it difficult to specify the condition of mutual knowledge without falling

into an infinite regress: the hearer and speaker must not only share the relevant contextual knowledgebut also have a second-order knowledge of what is the knowledge they share; however, they also mustassume that they share these second-order assumptions, which makes it necessary to have third-orderassumptions . . . and so on indefinitely. See Strawson (1964: 157); Sperber and Wilson (1986: 16–17).

18 One reason seems to be that pragmatics literature on implicatures often oscillates between philo-sophical inquiry, eg of the kind practiced by Searle, and attempts to provide scientific or quasi-scientificexplanations of the mental processes involved in communication. This oscillation between philosophyand science, not to speak of the problematic nature of the mental sciences, is the cause of a great dealof obscurity in pragmatics.


or conventions. Perhaps there is no substantial difference, then, between the inter-pretation that a literary critic assigns to a phrase in a poem, for instance, and ourhumdrum interpretations of expressions which go beyond the literal meaning ofthe sentences we encounter. In both cases, it seems, the interpreter must beengaged in the same kind of reasoning. Or is there some difference? Arguably,there is at least one important respect in which the concerns of pragmatics differfrom those of interpretation. This consists in the potentially different presupposi-tions held by each on what is considered to be the relevant criteria of success. Letme explain this point.

3. A THIRD MEANING OF MEANING?

Pragmatics is basically interested in the question of how communication is beingactually achieved. Consequently, the criteria of success for a communicative actwould be defined in terms of grasping speaker’s intentions. Recall the Griceianmodel of a speaker’s communication intentions: for S to mean something by x, hemust intend––

(a) S’s utterance of x to produce a certain response r in a certain audience A;(b) A to recognize S’s intention (a);(c) A’s recognition of S’s intention (a) to function as at least part of A’s reason for A’sresponse r.

From the perspective of pragmatics, an act of communication succeeds if and onlyif the hearer recognizes S’s intention (b) (Sperber & Wilson 1986: 28). Suppose Stells H that ‘Jim is a bad football player’, intending (so we assume) H to believe thisto be true. We judge the act of communication successful even if H fails to believethat Jim is a bad football player, so long as H recognizes that this belief was what Sintended to convey to him, that is, realizing S’s intention (b). (Note that in normalcircumstances, H’s recognition of S’s intention (b) is not only sufficient but also anecessary condition for the success of communication. Suppose H misunderstoodS’s utterance, hearing it as ‘Jim is a good football player’. Suppose further, that forsome reason he does not believe S (for instance, he thinks S has a good reason to lie),and hence he now believes the opposite, namely, that Jim is a bad football player. Asit happens, S has succeeded in creating the appropriate response in H. Nevertheless,the act of communication has clearly failed, since H has not recognized S’s intentionto communicate that belief, that is, intention (b) has not been conveyed.)19

But now, setting aside the interest in how communication is achieved, and tak-ing up the perspective of interpretation, we must ask a different question; that is,what is it to propose an interpretation of, for example, an utterance or a text? Withregard to this question, the idea of successful communication is only one possible

19 This is so, except in particular circumstances, when it is not part of the speaker’s intention tosecure a certain effect he strives to achieve by means of recognition of the intention to secure it, eg incases of insinuating, manipulative speech-acts etc. See Strawson (1964: 162). See also Chapter 8, sect 2.

A Third Meaning of Meaning? 21

relevant consideration. In one clear sense it is of course true that one understandsan expression if one recognizes the pertinent communication intentions of thespeaker. Thus we can say that successful communication is at least one criterionfor understanding an expression. But is it also a necessary one? Not according tomany philosophers and art critics, among whom it is a very familiar thesis thatinterpretation is not confined to an attempt to grasp the communication inten-tions of the artist. They argue that successful communication is not the only (or,as some claim, not even a relevant) criterion for the successful interpretation of atext or an utterance, etc.

Admittedly, if this thesis is correct, and I shall assume that at least contemporaryinterpretative practices render it undeniable, we still lack a conceptual account ofwhat it is that enables one to make such interpretative statements. In order to pin-point the issue, let me reiterate some of the conclusions reached so far.Interpretation, I have assumed, consists in the attribution of meaning to an object.We have encountered two senses of ‘meaning’ which are potentially relevant: themeaning of an expression, which is, at least in the semantic context, basically deter-mined by rules or conventions, and someone meaning that such-and-such by anexpression, which is normally defined in terms of communication intentions. I havealso argued that the concept of interpretation is not explicable in terms of followingrules or conventions, and hence, that the semantic notion of meaning (that is,‘meaning of . . .’) is not the appropriate one for the purpose of explicating the con-cept of interpretation. The pragmatic notion of ‘meaning’, understood in terms ofcommunication intentions would seem more suitable, and we encounter its use inmany interpretative contexts, but it is claimed that it fails to exhaust the full scopeof interpretation. So is there a third meaning of ‘meaning’ which might do the job?20

It is sometimes suggested, particularly in the context of interpretation of worksof art, that interpretative statements amount to formulations of the meaning of anobject for the interpreter (or, for some particular community interested in the rele-vant object). Presumably, one refers here to expressions about the impact of thework of art on the interpreter, the way it is experienced by her, and the like. Yetsuch reactions to objects, even if they are reactions to works of art, cannot be pre-sented as interpretations at all. Interpretation purports to be a statement about theobject interpreted, not about the subject who offers the interpretation. (Or else thesubject would become the real object of the interpretation.) Indeed, the term‘meaning’ is used here in a very different sense, as it would be, for instance, in saying that ‘my wife means a lot to me’. This sense is rather remote from our present concerns. In using it, one is not offering an interpretation but ratherexpressing a certain reaction or emotion or preference. On the other hand, when

20 Goldsworthy (1995) suggested that there is another sense of meaning that I ignore here, which is‘utterance meaning’ that is neither the (semantic) sentence meaning nor the (pragmatic) speaker’smeaning; ‘utterance meaning’, Goldsworthy claims, is ‘what evidence, readily available to the intendedaudience, suggests that the speaker intended to communicate in making the utterance’ (1995: 442).Since he makes it quite clear that the utterance meaning, thus defined, need not necessarily coincidewith the actual speaker’s meaning, it is clearly a counterfactual. Therefore, I do not ignore this possi-bility, but, as I suggest below, I would regard it as a special case of counterfactual speaker’s intentions.


a literary critic claims that a certain novel is about such-and-such, despite the factthat the author may have had no such intention, the critic wishes to make a state-ment about the meaning of the novel, and not about her (or somebody else’s) reac-tion to it. But are not there counter examples? Can not we say, for instance, thatan interpretation of a certain novel can purport to explain what the novel meantfor the generation in which it was created, or some later generation of readers, andthe like? Of course we can say that, but these would not be instances of interpret-ing the novel. We can describe or speculate about the ways in which a text has beenreceived by a certain community (or individual), the ways in which it has beenused or the social roles it played, and so forth, and all this could be very interest-ing in its own right. But it is crucial to remember that not everything we say abouta work of art, or any other text, amounts to an interpretation of it. Only thoseaspects of a text which can shed light on its meaning form part of the text’s inter-pretation. What the text means for someone rarely entails anything about what thetext means.21 Hence we are back to the question of what can be the meaning of ‘themeaning of a text’, if it is neither its literal meaning, nor the meaning intended bythe speaker/author.

In general, I will suggest that the answer to this question consists in the fact thatmeaning is assigned by a counterfactual statement. Given that x is the meaningattributed to, for instance a text T, and x is not the literal meaning of T, nor is itthe meaning of T intended by its author, then the attribution of meaning x to Tcan only be understood as the contention that on the basis of certain assumptionsa certain fictitious or stipulated speaker would have meant x by expressing T.22 Inother words, an interpretative statement is either a statement on the communica-tion intentions of the actual speaker, or else it must be a counterfactual statement,characterizing the communication intentions of a stipulated hypothetical speaker,whose identity and nature are either explicitly defined or, as is more often the case,presupposed by the particular interpretation offered.

The point here is actually twofold. First, that interpretation is essentially a mat-ter of attributing intentions, that is, in the pragmatics sense of ‘meaning’, namely,meaning that such-and-such by an act or expression. At the same time, interpreta-tions need not be based on the intentions of actual authors; the meaning of an actor expression is understandable in terms of counterfactual intentions, that is, interms of the intentions one could attribute to a fictitious author characterized incertain ways. This characterization of ‘the author’ constitutes a certain frameworkof reference, as it were. It defines the parameters employed throughout the

21 Exceptions are conceivable, though. If there is a whole community of readers, for example, forwhom the text meant something, it may be possible to make some inferences about the kind of mean-ings that the text can possibly bear. But these are typically very problematic inferences. For example, Idoubt that much can be learnt about the meanings of Wagner’s work from the fact that it was sowarmly received by the Nazis. They may have misunderstood it entirely (as they certainly did withNietzsche’s work).

22 Cf Fish (1983a: 282–83). Note that generally, a counterfactual statement can be either contrary tothe facts, or in a weaker version, regardless of the facts. Of course, the weaker version is more relevanthere.


interpretation in question. The point is, however, that while these parameters arepotentially variable, the logic of interpretative statements is such that they are typ-ically reducible to the attribution of intentions.23 Hence there is no need for a thirdmeaning of ‘meaning’ to explicate the concept of interpretation. In other words,the difference between interpretations which confine themselves to attempts toreveal the intentions of the author, and those which do not, does not lie in thegrammar of interpretation. The difference consists in variant characterizations ofthe ‘author’ whose intentions the interpreter strives to illuminate.

The characterization of a fictitious or stipulated author can vary along variousdimensions, and be presumed or presented at various levels of abstraction. Thedimensions would vary, for instance, against different historical settings, or differ-ent generic affiliations, or whatever else that might affect the meaning of the objectin question. With respect to the level of abstraction, we could say that the mostconcrete characterization presupposed is the one which coincides with the actual,historic author. One could then move away, so to speak, from the concrete author,employing various degrees of abstraction. Say, for example, that the object ofinterpretation is a certain character in Shakespeare’s Hamlet: interpretations at themost concrete level typically attempt to discover Shakespeare’s intentions—thatis, the ones he actually had—with respect to the character in question. At a some-what more abstract level, one might also consider those intentions which one pre-sumes that Shakespeare would have been willing to recognize as his own, despitehis unawareness of them while writing. Progressing to a more abstract characteri-zation, one might ask, for instance: what Shakespeare would have intended had hewritten Hamlet in the twentieth century, or had he been aware of Freud’s concep-tion of the Oedipus complex, and so on. Finally, one can abstract even further bydeparting from an abstraction of Shakespeare altogether, conceiving the author ofHamlet in terms of some ideal representative of a certain genre, for example.

It may be arguable that the attribution of counterfactual intentions does not con-cern intentions at all, that is, at least not if we think of intentions as mental events.There is, perhaps, a grain of truth in this, but it is beside the point. My thesis isconfined to the explication of the grammar of interpretation, and was not meant toimply anything further. The thesis advocated here is not meant to deny (or toconfirm, for that matter) that the concept of intention designates a mental event.Still, there is no conceptual flaw in the counterfactual attribution of intentions.There is, of course, a conspicuous logical difference between actual and counterfac-tual attribution of intentions, which resides in the nature of the truth conditions ofeach of these classes of statement. The truth conditions of the former would be givenin terms of the mental events (or facts) that those statements purport to describe.Hence also, statements of this kind would be verifiable in ways which are unavail-able with respect to counterfactual statements. This is not meant to suggest that

23 Psychoanalytic interpretations may present one general exception to this thesis. As the status ofpsychoanalysis is itself subject to extensive controversy, I cannot hope to dwell on this matter in any sat-isfactory way. Generally speaking, though, it would seem that psychoanalysis presents an intermediarycase, combining elements of interpretation and scientific explanation in a rather intricate manner.


interpretative statements about actual intentions are somehow easier to verify. It isoften much more difficult to know what an author actually meant than what hewould have meant had he been working on the basis of certain assumptions whichwe can attribute to him. The difference is only a logical one. But these logical differ-ences do not affect the possibility of counterfactual attribution of intentions.Perhaps one can question the point of making such counterfactual statements, ordoubt their objectivity, but these doubts pertain to a very different dimension of thematter than the one I have been concerned with. Generally speaking, these doubtspertain to the distinction, or better, to the problem of distinguishing, between inter-pretation and invention. Whether such a distinction can be substantiated in a satis-factory manner, is a question I would wish to discuss at a later stage.

There is one point, however, which can be made now: it is arguable that themore abstract the characterization of the fictitious author, the greater amount ofcreativity the interpretation allows. And vice versa, the more one commits oneselfto retrieving the intentions of the actual author, the less creative freedom theinterpreter allows himself, as it were. To be sure, this is not meant as more than avery general and rough observation.24 Much depends on the particular assump-tions on the basis of which the given interpretation is conducted. It is importantto realize, however, that those assumptions, on the basis of which the speaker—whether actual or fictitious—is characterized, provide the basic criteria of successfor the proposed interpretation. To the extent that one strives to retrieve the actualauthor’s intentions, for instance, one commits oneself to certain criteria, in thiscase historic, that are taken to determine the success or failure of the particularinterpretation offered. Likewise, if the author is characterized in terms of someideal representative of a certain genre, for instance, the presumptions which aretaken to determine this characterization would provide the criteria of success forthe particular interpretation offered.

Consequently, one of the interesting questions about the concept of interpreta-tion is whether there is any one criterion of success that is inherently suitable to allinstances of interpretation in a particular field, or perhaps even in general. The pos-sibility that there is, as suggested by Dworkin, will be discussed in the next chapter.

For the time being, let me summarize the conclusions that I see as justified atthis point. Interpretation, I have argued, consists in the imposition of meaning on an object, whereas the appropriate notion of meaning is given in terms of communication intentions. This still leaves open the possibility of attributingintentions counterfactually to a fictitious speaker, whose supposed identity andcharacterization determine the criteria of success presumed by the kind of inter-pretation offered. This view of interpretation coincides with the thesis, advocatedin the first section, that interpretation is an exception to, and parasitic on, the priorknowledge of literal meanings, as it normally concerns those aspects of commun-ication which are under-determined by rules or conventions.

24 Stoljar (2001) suggests that counterfactual intentions, because they are counterfactuals, are oftenvague and therefore engender a considerable amount of indeterminacy. She rightly claims, I think, thatthis is one of the reasons for the possible indeterminacy of interpretations in legal and other contexts.


3

Dworkin’s Theory of Interpretation andthe Nature of Jurisprudence

DWORKIN’S THEORY OF law as interpretation is a very complex challenge to analytical jurisprudence in general and legal positivism in

particular. The challenge is both substantive and methodological. In sub-stance, Dworkin aims to undermine the positivist insight that a clear distinctionexists between law and morality. At the methodological level, Dworkin strives toundermine the traditional distinction between an analysis of the concept of law,and the interpretation of what the law is in particular cases. Analytical jurispru-dence is based on the assumption that the general question of ‘What is law?’ is dis-tinct from, and independent of, the question of ‘What is the law?’ on any particularissue in a given legal system. Dworkin challenges this traditional distinction. As henow sees it, there is no analytical distinction between a theory about the nature oflaw and a theory of adjudication; both amount to the same type or reasoning,namely, an attempt to impose the best available interpretation on a given practice.

The concept of interpretation plays an essential role in both of these critiques,namely, the substantive critique of legal positivism and the methodological cri-tique of analytical jurisprudence. In fact, the general argument is very similar inboth of these cases. Roughly, the framework of Dworkin’s substantive argumentruns as follows:

1. Each and every conclusion about what the law is in a given case is a result of inter-pretation. 2. Interpretation is essentially an attempt to present its object in the best possible light. 3. Therefore, interpretation necessarily involves evaluative considerations. 4. And therefore, every conclusion about what the law is, necessarily involves evaluativeconsiderations.

A very similar framework underlies Dworkin’s methodological argument:

1. A theory about the nature of law is an interpretation of a social practice.2. Any interpretation of the law is basically an interpretation of the legal practice.3. Therefore, both legal theorists and judges are engaged in an interpretation of a socialpractice. 4. The interpretation of a social practice, like law, purports to present the practice in itsbest moral light.5. Therefore, both theorists and practitioners are basically engaged in the same type ofreasoning, namely, an attempt to present the legal practice in its best moral light.

The purpose of this chapter is to provide a critical analysis of these arguments andthe ways in which they are intertwined. I will argue that although some ofDworkin’s premises are true and very insightful, particularly about the nature ofinterpretation, the jurisprudential conclusions do not follow. I will begin with abrief presentation of Dworkin’s constructive model of interpretation, evaluatingsome of its strengths and weaknesses, and then I will proceed to focus on themethodological argument, offering a critique of Dworkin’s conception of the rela-tions between legal theory and legal practice. A critique of Dworkin’s substantiveargument against legal positivism will be discussed in later chapters. The gist of thecritic is, however, that the first premise of the framework argument is false: it is notthe case that every conclusion about what the law is, necessarily depends on interpretation (Chapter 7). But again, this chapter is mostly about the nature ofinterpretation and the relations between theory and practice.

1. THE CONSTRUCTIVE MODEL OF INTERPRETATION

I have argued in the previous chapter that interpretation is essentially concernedwith meaning in its pragmatic sense, namely, meaning that such and such by agiven expression. And I have also argued that this intentional grammar of inter-pretation can either refer to the intentions of an actual speaker, or else, to a coun-terfactual intention presupposed by the kind of interpretation offered, that is, by acertain construction of a hypothetical speaker. I think that Dworkin’s startingpoint is very similar. He also maintains that interpretation is concerned withintentions or purposes, and he takes the construction of such purposes as essentialto what interpretation is all about. The gist of this constructive model, as he callsit, is the following:

Interpretation of works of art and social practices, I shall argue, is indeed essentially con-cerned with purpose not cause. But the purposes in play are not (fundamentally) thoseof some author but of the interpreter. Roughly, constructive interpretation is a matter ofimposing purpose on an object or practice in order to make of it the best possible example ofthe form or genre to which it is taken to belong.

And, as Dworkin immediately clarifies:

It does not follow . . . that an interpreter can make of a practice or a work of art anythinghe would have wanted it to be, . . . the history or shape of a practice or object constrainsthe available interpretation of it. (1986: 52, my emphasis)

There are three main insights about the nature of interpretation which are presenthere. First, that interpretation strives to present its object in its best possible light.Second, that interpretation is essentially genre-dependent. And third, that thereare certain constraints that determine the limits of possible interpretations of agiven object. A discussion of this third point will be postponed to the next chap-ter. Here I will be concerned with the former two, beginning with the question ofwhy the best? Why should every interpretation of an object or text strive to present

28 Dworkin’s Theory of Interpretation and the Nature of Jurisprudence

it in its best possible light? One who expects a detailed, argumentative answer tothis crucial question is bound to be disappointed. Dworkin only offers two cluesto his answer. The first clue is in a footnote: An interpreter is bound to strive forthe best possible presentation of the object of interpretation, Dworkin claims,because ‘otherwise we are left with no sense of why he claims the reading he does’(1986: 421, n 12). The other line of thought is less direct, deriving from Dworkin’sassumption that the only alternative to this constructive model is the traditionalauthor’s intention model, which he rejects for various reasons. So let us take upthese two points in turn.

Perhaps Dworkin’s intuition is clear enough: If two interpretations of, say, anovel, can be put forward, and according to one of them the novel emerges in abetter light, that is, as a better novel, it would seem to be rather pointless if weinsisted on rejecting that interpretation in favor of the one which presents thenovel in a worse light. This is the kind of intuition we are familiar with from philo-sophical argument as well. If you want to criticize someone’s thesis, you are notgoing to convince anyone of the cogency of your critic unless you have tried to present the object of your critic in its best possible light. It does not mean, ofcourse, that anything you try to interpret must be presented as something valuableor particularly successful. But unless you try to make the best of it first, there is little hope in convincing anyone that it is a failure.

The only possible alternative Dworkin sees to this heuristic assumption is theauthor’s intent model. According to the latter, interpretation is nothing but anattempt to retrieve the actual intentions, purposes, etc, that the author of the rele-vant text had actually had with respect to various aspects of its meaning.Therefore, if the assumption is that what the text means is only what its authorintended it to mean, then, of course, the question of presenting the text in its bestlight does not arise. For better or worse, the interpretation of the text would onlyconsist in whatever it is that we can find out about the author’s intentions. If a bet-ter reading of the text is available, that would be an interesting critique, perhaps,but not an interpretation of it. So it seems that in order to substantiate the centralthesis of the constructive model of interpretation, Dworkin must refute its obvi-ous rival, the author’s intent model. Or at least, this is what Dworkin’s assumeshere.

Dworkin has two main arguments against the author’s intent model of inter-pretation. The first argument, which draws most of its intuitive support fromexamples in the realm of works of art, relies on the fact that artists typically intendtheir works to become cultural entities, detached from their original intentionsand purposes. Once a work of art had been created, the artist would rather have itstand on its own, so to speak. Thus, at least in the realm of the arts, it will oftenhappen that the attempt to apply the author’s intention model of interpretationwould turn out to be self-defeating. You think that the text means what the authorintended it to mean, so you seek out the author’s intentions only to find out thatshe had intended her intentions to be ignored. Perhaps it is not accurate to say thatthis just may happen. Perhaps it is something deeper about the nature of art, or at

The Constructive Model of Interpretation 29

least, art in the modern world, that works of art are typically created with such anintention to become cultural entities, detached, at least to some extent, from theartists’ particular intentions. But there are two problems about this argument,both of them concerning its potential scope. First, even in the realm of works ofart, there is nothing necessary or essential to this characterization. Some artistsmay simply not share the kind of vision it involves. So this self-defeating argumentmight defeat itself. If you argue that author’s intentions should be ignored becauseit is the intentions of the authors that they should, you may find out that the inten-tion you rely upon does not exist; perhaps the author of your text actually wantedhis particular intentions to be relevant for the interpretation of his work. Whywould you ignore that intention now? More importantly, this argument which isbased on the ways in which artists tend to view their creative activities does seemto derive from certain aspects of the nature of art, and thus perhaps it could not beextended to other cases. In particular, it is doubtful that the argument can beextended to the realm of law without begging the question against its factualassumptions. Is it safe to assume that those who create legal texts, like legislatorsand judges, also tend to share this intention that their intentions not be taken intoaccount? It is very doubtful that they do. Thus, if there is a general argumentagainst the author’s intention model, it must be a different kind of argument.Trying to refute the author’s intention model on the basis of assumptions aboutauthors’ intentions is just too precarious and unstable.

Dworkin does have another argument against the author’s intentions modelwhich is actually much more nuanced and insightful. In order to understand it,however, we need to get a better sense of the ways in which interpretation is genre-dependent. An interpretation, according to Dworkin, strives to present its objectas the best possible example of its kind, that is, of the genre to which it is taken tobelong. This assumes that it is impossible to interpret anything without first hav-ing a sense of what kind of thing it is, what is the genre to which it belongs. On theface of it, this may sound too rigid; after all, sometimes we do seem to be engagedin an interpretation of a text or object even if we are not quite sure what the appro-priate generic affiliation of the text is. And sometimes the appropriate genericaffiliation is precisely what is at dispute between rival interpretations of an object.An interpreter may argue, for instance, that Beckett’s Mercier and Camier is bestread as a play, and another may think that it is actually a novel. Dworkin, however,need not deny any of this. Even when the generic affiliation is the issue, one wouldstill have to decide which affiliation presents the work as a better work of litera-ture, for example. In other words, when the specific generic affiliation is not clear,we need to ascend in a level of abstraction and try to decide which generic affilia-tion of the text would present it as a better example of the higher-level affiliation,say, as a piece of literature, or if that is in doubt, as a work of art, and so forth. Inany case, we must have a sense of what kind of thing it is that we strive to interpret,even if the classification is tentative or rather abstract.

There is, actually, a deeper insight here. We can only interpret a text if we havea sense of what kind of text it is, because me must also have a view about the


values which are inherent in that kind or genre. Unless we know what makes textsin that genre better or worse, we cannot even begin to interpret the text. You can-not begin to think about the interpretation of a novel without having some viewsabout what is it that makes novels good (or bad), and you cannot interpret a poemwithout having a sense of what are the values we find in poetry (or, in poetry ofthat kind) and so on. If you propose a certain interpretation of a novel, for exam-ple, you must rely on some views you have about the kind of values which makenovels good and worthy of our appreciation. Otherwise you could not explain whyshould we pay attention to the kind of interpretation you propose, why pay atten-tion to the aspects of the work you point out and not to any other. So I think thatDworkin is quite right to maintain that without having some views about the val-ues inherent in the genre to which the text is taken to belong, no interpretation cantake off the ground. The values we associate with the genre partly, but crucially,determine what would make sense to say about the text, what are the kinds ofmeaning we could ascribe to it.

This insight also explains, however, the real nature of the debate about author’sintentions in interpretation. As Dworkin explains,

the academic argument about author’s intentions should be seen as particularly abstractand theoretical argument about where value lies in art. (1986: 60)

I am not arguing that author’s intention theory of artistic interpretation is wrong (orright), but whether it is wrong or right and what it means . . . must turn on the plausi-bility of some more fundamental assumption about why works of art have the value theirpresentation presupposes. (1986: 61)

This is very important. Those who maintain that the particular intentions of, say,a novelist, have a bearing on what the novel means, must also maintain certainviews about what makes novels valuable and worthy of our appreciation. Theymust think that understanding what the author had strove to achieve, or the mes-sage the author wanted to convey, are the kind of considerations which bear on thenovel’s meaning, which also assumes that they are the kind of considerationswhich are related to what makes novels valuable. And vice versa, of course. If youdeny the relevance of the novelist’s intentions that is only because you have certainviews about what makes novels valuable, views which are detached from the values we associate with the communication aspects of literature or perhaps art in general. Needless to say, art is just an example here. As we shall see later, a verysimilar line of reasoning applies to the possible roles of the intentions of legislatorsin the interpretation of statutes (Chapter 8), and the constitution (Chapter 9).Whether it makes sense to defer to such intentions must also depend on a theor-etical argument about where value lies in the relevant genre, namely, the author-ity of legislation (or of a constitution).

Thus, the conclusion so far is that the author’s intent model of interpretationonly makes sense as an instance or an application of the constructive model. Itdoes not compete with it. Whether it makes sense to defer to the intentions of theauthor or not is a local issue, specific to the genre in question, and depending on

The Constructive Model of Interpretation 31

the values we associate with the latter. Does it prove Dworkin’s point that inter-pretation must always strive to present its object as the best possible example of thegenre it is taken to belong? It would prove the point only if we agreed withDworkin that the only alternative to the constructive model is the traditionalauthor’s intentions model. But this is not a correct assumption. Interpretationsneed not strive to present the text in its best light; they could simply strive to pre-sent it in a certain light, perhaps better than some, worse than others, but in a waywhich highlights an aspect of the meaning of the text which may be worth payingattention to for some reason or other. Let us recall that Dworkin’s insistence on‘the best’ derives from the assumption that unless one strives to present the text inits best light, ‘we are left with no sense of why he claims the reading he does’ (1986:421). But this simply need not be the case. And sometimes it just cannot be thecase. Let me clarify. There are two points here: one about the motivation and inter-est in various interpretations, and the other about the limited possibilities of an allthings considered judgment about what is the best.

First about motivation, then. Dworkin’s assumption that unless one strives topresent the text in its best light we would have no reason to pay attention to theinterpretation offered, is just not true. We are familiar with many interpretations,in the realm of works of art, and others, where we have a very good sense of whythe interpretation is interesting and worth paying attention to, even if it does notpurport to present the text in its best light. For example, a psychoanalytical inter-pretation of Hamlet would be very interesting and certainly worth paying atten-tion to, even if it does not necessarily render the play better than other, moretraditional interpretations of it. It simply brings out a certain aspect of the playwhich is interesting on its own right. Perhaps it contributes to a better under-standing of Shakespeare’s work, highlighting aspects of it hitherto unnoticed,enriching our understanding of the subtleties and richness of the work, and soforth. It can do all this without assuming that the particular interpretation offeredpresents Hamlet in its best possible light. And the same thing can be said about,say, a modern adaptation of Hamlet set in a contemporary setting, or perhaps evena parody of it. Thus, the general assumption that without striving to present thetext in its best light we would have no sense of why the interpretation is worth pay-ing attention to, is simply groundless.

Regardless of the question of motivation, however, there is also a question aboutpossibilities. As several commentators have pointed out (eg Finnis, 1987: 371),Dworkin’s insistence on the best possible light rests on the assumption that in eachand every case there is the possibility of an all things considered judgment aboutwhat makes a given work valuable, what makes it the best possible example of thegenre to which it is taken to belong. But this assumption, it is rightly claimed,ignores the problem of incommensurability. It is a rather prevalent aspect of theevaluative dimensions of works of art, and many other possible objects of inter-pretation, that often there is no possibility of rendering an all things consideredjudgment about their relative merits. There is simply no such thing as the best.Some interpretations may be better, or worse, than others, but none could be


claimed to be the best. That is so, simply because some of the evaluative compar-isons are incommensurable. The incommensurability of values consists in the factthat there are certain evaluative comparisons in which it is not true that A is bet-ter than B, and not true that A is worse than B, and not true that A is on par withB. That is typically so because A and B are mixed goods, comprised of numerousevaluative dimensions, and they just do not have a sufficiently robust commondenominator which makes an all things considered judgment possible. There arenumerous things that make novels valuable, for instance, and one interpretationmay render the novel more valuable on certain dimension, while another interpretation may make it more valuable on other dimensions. Often it would besimply impossible to say which one of them, all things considered, is better (orworse). Think of being asked which novel is the best that you have ever read; youwould probably remain completely baffled, unable to answer. It is a silly question,you would say, and rightly so.

If this is so obvious, why does Dworkin deny it? What is it in Dworkin’s theorythat makes him insist on the possibility of presenting an object of interpretation inits best possible light? I think that the answer to this puzzle is to be found inDworkin’s jurisprudence, not in his general theory of interpretation. The lattermakes perfect sense without this problematic element. As I will argue below, it isDworkin’s attempt to derive from his theory of interpretation certain conclusionsabout the nature of jurisprudence that explains his insistence on this element ofinterpretation. Thus, in the following sections, I will concentrate on Dworkin’scritic of analytical jurisprudence on the grounds that legal theory can only be aninterpretation of a social practice and, as such, it can only be the same kind ofinterpretation which is characteristic of the practice itself, namely, evaluative,moral and political in its essence. As we will see in detail below, this conclusionultimately depends on Dworkin’s understanding of the constructive model of interpretation and the problematic idea that interpretation must always attemptto present its object in the best possible light.

2. THEORY AND PRACTICE

In some social practices, notably law and the arts, Dworkin claims, the participantsdevelop a complex ‘interpretive’ attitude towards its rules and conventions, anattitude including two components:

The first is the assumption that the practice . . . does not simply exist but has value, thatit serves some interest or purpose or enforces some principle—in short, that is has somepoint—that can be stated independently of just describing the rules that make up thepractice. The second is the further assumption that the requirements of [the practice] . . . are not necessarily or exclusively what they have always been taken to be but areinstead sensitive to its point. (1986: 47)

Unfortunately, Dworkin does not identify the kind of social practices which can besaid to display this interpretative attitude. My suggestion is the following: the

Theory and Practice 33

interpretative attitude characterizes social practices which are constituted bynorms. Let me explain. Not all the social phenomena where people’s behavior con-forms to rules are social practices, properly so called. The distinction here isbetween normative rules which constitute a social practice, and rules which merelyreflect social regularities.

I take it to be a defining feature of normative practices that the existence of therules or conventions is of itself reason for action.1 Thus, consider the followingexample. Suppose we observe a regularity in a certain society, for instance, thatmost people drink tea at five o’clock in the afternoon. Is this a social practice thatcan be said to have a value or purpose or some point? We would hardly say that eat-ing meals is a social practice, and that as such it enhances a value, since people havereason to eat meals regardless of any considerations about what other members oftheir society do, or should do. In other words, eating meals is not an instance of fol-lowing a rule. When the reasons for doing something are socially independent, it isinappropriate to call the regularity of actions a social practice, even if it occurs as asocial regularity. This might be the case with regard to five-o’clock tea; but thenagain it might not. It is possible that people in our imaginary society adhere to thisregularity for reasons which are not socially independent. On the contrary, it maybe meaningful for the participants that the regularity is a practice rather than merecoincidence, and they may act as they do, at least in part, for this very reason. It isin such cases that the social rule is normative. (One need not conclude that sociallyindependent reasons are necessarily excluded in these cases. Sometimes they are,for instance, when the rule functions as a coordinative factor such as the one deter-mining on which side of the road cars are driven, but this is not always the case.)

Now, the point is that our story cannot be concluded here. It still lacks an expla-nation of why or in what sense the participants in a practice conceive of its rules asreason for action. This is where the concept of the value or the point of this practice comes in. To make sense of the idea that a rule or convention is of itself areason for action, we must assume that it is of some meaning or value for the par-ticipants. This then yields the answer to the question posed above. Constructiveinterpretation is the imposition of ‘meaning’ or ‘point’, or in general a value, on anormative-based practice in order to render intelligible the idea of norms or rulesbeing reasons for action. In other words, social practices, that is, practices consti-tuted by sets of norms, are only intelligible against the background assumption ofa purpose or value that the practice is taken to enhance. In this sense it can be saidthat from the point of view of the participants, law, qua normative system, oughtto be seen as justified. (More on this below.)2

1 See Hart (1961: 78–83). Of course, a norm can also be a reason for condemning or praising behav-ior etc, but these are parasitic on the fact that the norm is primarily considered a reason for action.Norms can also determine beliefs, attitudes etc, but we need not go into this here.

2 In this, Dworkin shares the views of Kelsen and Raz on the normativity of law, but not those ofHart. One should realize, of course, that it is not necessary for all the participants in a social practice(constituted by normative rules) to regard the rules as normative. As we know very well from our legalsystems, some of the participants can be anarchists, while many others comply with its rules for various prudential or personal reasons, or for no reason at all.


So much for the first component of the participants’ interpretative attitude.What about the second one, namely, the view of the requirements of the practiceas sensitive to its supposed value? Dworkin (1986: 47) rightly acknowledges this asa distinct feature which is not logically entailed by the former. Again, he is not veryclear in identifying the kinds of practices which are value sensitive in this sense.But the issue is both important and problematic. It is only natural to suppose thatany activity performed (among other things) to advance a value or purpose,should display a sensitivity to the value or purpose it is taken to advance. Butthings become more complicated when we concentrate on social practices.

Most significantly, different social practices vary according to the different waysin which their requirements are institutionalized. By this I mean the various waysin which the requirements of the given practice are themselves determined,modified, etc, by a set of established rules and institutions. Consider, for instance,such practices like table manners, or perhaps etiquette more generally. Nobody isthere to determine the rules of table manners, there are no canonical formulationsof such rules, and there are no institutions which are entrusted with modifying therules or instituting new ones.3 Law, on the other hand, does have such institutionsand many more. In fact, law is probably the most institutionalized practice weknow. (Art is an interesting intermediate case: viewed as a social enterprise, it cer-tainly has many institutional features, manifest in the role of museums, galleries,art dealers etc, in affecting the way art is viewed in a specific community. On theother hand, it is not clear that the concept of art is necessarily affected by suchinstitutional elements.)

The institutional aspect of law is relevant here for the following reason:Dworkin’s assumption that the requirements of law are sensitive to its point orvalue seems to be directly at odds with the legal positivist doctrine of the separationof law from morality, that is, the distinction between what the law is and what itshould be. However, to be more precise, legal positivism need not deny that therequirements of law are sensitive to its point or value, as a matter of historicaldevelopment. Over a certain period of time, people’s actions are bound to beinfluenced by the way in which they understand or interpret the point or value ofthe practice, and this itself shapes the emergent forms in which the practice will berealized in detail. Such an account can hardly be denied. The dispute lies elsewhere.The question is, at what stage, and how, do evaluative judgments regarding thevalue of law actually become part of the law itself? Positivists argue that due to theinstitutionalized aspect of law, which is an essential aspect of it, it is never sufficientfor a rule or decision to be morally or otherwise justified in order to become law,without an actual and authoritative decision to this effect. However, this being oneof the main points of dispute between Dworkin and his positivist opponents,

3 I know that at times it was fashionable to have canonical books on etiquette and such, books whichcan be thought to have institutionalized such social practices. I doubt, however, that such etiquettebooks actually manage to establish canonical formulations of rules of etiquette, though perhaps theypurport to do so. In any case, they do not purport to enact such rules or officially modify them. Mostly,they are ex post summaries of rules of etiquette as practiced by certain segments of the population.

Theory and Practice 35

Dworkin cannot at this initial stage presume law to be sensitive to its value in themanner that other, non-institutional practices might be, without incurring thecharge of having assumed the very point at issue. Avoiding this requires the restric-tion of Dworkin’s claim about value-sensitivity to the historical sense of this interpretative approach, which indeed should not be denied by legal positivism.

To sum up, the discussion so far has shown that the normative aspect of legalsystems requires its participants to adopt a ‘complex interpretative attitude’towards its rules. Now it must clarify the relation between legal theory and prac-tice, providing an answer to the question of why the theory should also be inter-pretative, and why is it interpretative in the same way. The reply Dworkinproposes is rather surprising, namely, that there is no difference between theoryand practice in this respect. Any attempt to explain a social practice such as law,must involve exactly the same kind of reasoning required for participation in thepractice, that is, for accounting to oneself what it is that the practice requires. (Forthe sake of brevity, I shall henceforth refer to this thesis as the ‘hermeneutic the-sis’, not because it epitomizes the main ideas of German hermeneutics, butbecause in this Dworkin claims to have been inspired by this school.) The follow-ing is the relevant passage:

A social scientist who offers to interpret the practice must make the same distinction. Hecan, if he wishes, undertake only to report the various opinions different individuals inthe community have about what the practice demands. But that would not constitute aninterpretation of the practice itself; if he undertakes that different project he must giveup methodological individualism and use the methods his subjects use in forming theirown opinions about what courtesy really requires. He must, that is, join the practice heproposes to understand; his conclusions are then not neutral reports about what the cit-izens of courtesy think but claims about courtesy competitive with theirs. (1986: 64)

Before I proceed to examine this thesis in some detail, let me mention a smallpoint. The hermeneutic thesis gains some of its plausibility from a potentially mis-leading example. Dworkin sometimes compares legal theory to literary criticism(1985: 158–59; 1986: 50). The latter, as I readily conceded, is undoubtedly aninterpretative enterprise. But is literary criticism analogous to legal theory? This isfar from clear. More plausibly, it is analogous to adjudication. It is the role ofjudges, like the role of literary critics, to decide what certain texts mean. Whilejurisprudence might be construed as analogous to some form of literary theory,the same questions on the relations between theory and practice would hold hereas well. In other words, is a theory about literary criticism an interpretation of literature? Perhaps it is, but such a conclusion would need some argument in itssupport. Perhaps Dworkin is aware of this problem, claiming as he does at the verybeginning of the book (1986: 14) that he will make the ‘judges’ viewpoint’ the par-adigm of his theory. But this only pushes the question one step further: why shouldthe judges’ point of view determine the perspective of legal theory? In short, theanalogy between jurisprudence and literary criticism does not hold independently;it can only follow from an argument which we have yet to explore.


3. THE INTERNAL POINT OF VIEW

In order to understand the significance of Dworkin’s hermeneutic thesis weshould take a look at the dispute about the normativity of law. The appropriateaccount of the normativity of law has always been one of the most contested top-ics among legal positivists. Bentham and Austin sought to provide a reductionistaccount of legal statements. Austin (1832: lecture 1), for instance, claimed thatstatements about legal duties are fully expressible in terms of the likelihood thatone may come to harm of a certain kind.

Yet this reductionism formed one of the main targets in HLA Hart’s criticism ofearly positivism. Hart (1961: 78–83) distinguished between the external and theinternal points of view of normative systems. The Austinian description is exter-nal in the sense that it is a description of legal practice, or better, its regularities, asviewed by an outsider attempting to understand the participants’ behavior with noknowledge of their reasons for behaving as they do. Such an alien sociologistcould, for instance, observe that most people stop their cars when the traffic-lightis red, and that most (or some?) of them are liable to sanctions when they do not.He could thus only describe the ‘normativity’ of law in terms of predictions aboutliability to sanctions. But an analysis of law confined to the external point of view,Hart argued, is a serious distortion. Legal theory must take account of the internal,participants’ point of view. Most of these (particularly judges and other officials)regard the law as reason for actions; hence their statements about the law are normative statements.

Hart himself, however, seems to have offered yet another type of reduction. Hepurported to explain the internal point of view in terms of what people believe tobe reasons for action. He thought it sufficient for legal theory to account for thenormativity of law from this sociological perspective, as it were; that is, in terms ofpeople’s beliefs, attitudes, tendencies, and the like. Thus, according to Hart’s view,we encounter two types of normative statement:

1. Made by people who believe in the validity of the normative system (that is, full-blooded normative statements), and2. Made as statements about (1) by someone who does not necessarily believe in thevalidity of the norms.

Raz (1975: 171) recognizes the same two varieties of explanation of norms (whichhe labels ‘normative based’ and ‘belief based’, respectively) and acknowledgesthem as the basic types. However, he also argues that a third category, which hecalls ‘normative statements from a point of view’ (1975: 170–77) or ‘detached legalstatements’ (1979: 153), cannot be reduced to either (1) or (2). These are state-ments of the form:

The Internal Point of View 37

3. According to the law A ought to do x.

Nothing follows from statements like (3) as to what the speaker believes that oughtto be done (all thing considered), or as to what anyone else believes. They are state-ments ‘from a point of view or on the basis of certain assumptions which are notnecessarily shared by the speaker’, or indeed by anyone in particular (Raz 1979: 156).

Raz’s identification of this third type of normative statements, irreducible to theother two, helps explain for instance, how normative concepts (such as ‘ought’and ‘duty’) do not have different meanings when used in different normative con-texts (for example, law, positive morality, critical morality), while preventing theconfusion of this issue with the question of the necessary connections between lawand morality (Raz 1979: 158). But most important, it enables positivists like Raz(and Kelsen as construed by Raz) to reconcile positivism with the position men-tioned earlier, that from the point of view of the participants, law ought to be con-sidered as justified. Raz can explain Kelsen’s dictum that even ‘an anarchist, if hewere a professor of law, could describe positive law as a system of valid norms,without having to approve of this law’ (Kelsen 1967: 218n),4 while preservingKelsen’s concept of legal validity in terms of justification.

This is a crucial point. Dworkin has previously argued (1977: 48–58) againstHart’s concept of normativity, that an adequate account of the internal point ofview cannot be ‘belief based’, to use Raz’s expression. This is so, as when the par-ticipants in a normative system make claims about what the norms require, theydo not typically make claims about what other people believe that ought to bedone, but simply about what ought to be done. We can now gather that Kelsen andRaz could agree with Dworkin on this point.5 Legal positivism need not deny thatthe participants in a legal system (particularly judges) make full-blooded norma-tive statements which are irreducible to belief-based explanations; but legal posi-tivism is not forced to admit that an account of such statements must adopt theinternal point of view, in a full-blooded, normative manner.

In other words, in so far as the issue is an account of normative statements, theredoes not seem to be any real difference between Dworkin and Raz. Both wouldagree that when a theorist or a participant seeks to account for what the lawrequires in a given case, he or she is bound to make some normative statementswhich are (at least in some cases) irreducible to belief-based explanations. Yet

4 See Raz (1979: 156); see also his ‘Kelsen’s Theory of the Basic Norm’ (ibid: 123–45).5 I should mention that Hart himself objects to this account of the normativity of law, as depicted

by Raz. He claims that ‘when judges . . . make committed statements . . . it is not the case that they mustnecessarily believe or pretend to believe that they are referring to a species of moral obligation’ (1982:161). Hart’s argument seems to dwell on the fact that people, judges included, can have various reasonsfor accepting the normativity of law, reasons which are not necessarily moral or political. I think Razwould not deny this, yet he would claim that these are somehow parasitic cases, ie parasitic upon thestandard, moral conception. However, a full account of the dispute between the two would exceed thescope of this chapter, and in any case, even Hart does not deny that Raz’s account of the normativityof law is compatible with legal positivism (1982: 158).


neither of them is logically obliged to contend that such an account must adopt thecommitted, rather than the detached point of view.

But now it is vitally important to see where the disagreement does in fact lie. Itindeed has to do with the relevant point of view, not with regard to the explication ofnormative statements, but regarding the explication of the concept of law. Dworkinseems to be claiming that the concept of law is also a normative concept, that is, aconcept which can only be accounted for from a normative point of view. This iswhy, or rather this is the sense in which, Dworkin’s jurisprudence is a theory of adju-dication. Dworkin declines to distinguish between the interpretation of the law, thatis, its particular requirements, and the interpretation of law, that is, the general con-cept. For him, both amount to one and the same thing: imposing a purpose or valueon the practice so as to present it in its best possible light (Dworkin 1986: 90).

To sum up so far: the hermeneutic thesis should not be understood to deny thepossibility of normative statements from a point of view. What it amounts to is acontention that jurisprudence— viewed as a theory of the concept of law—and atheory of adjudication, must adopt the same point of view, that is, the point of viewof a committed participant.

In the following sections I shall try to present what seem to me to be Dworkin’sarguments in favor of the hermeneutic thesis, arguing that none of them in factturns out to be successful. Later, I shall say something more about the conse-quences of this failure.

4. THE ARGUMENTATIVE CHARACTER OF LAW

Dworkin first refers to the internal perspective on law in a reply to the possible claimthat a proper understanding of law requires a scientific or historical approach. Asthe same argument is also mentioned later, however, in the context of thehermeneutic thesis, it deserves close examination. Consider the following passage:

Legal practice, unlike many other social phenomena, is argumentative. Every actor in thepractice understands that what it permits or requires depends on the truth of certainpropositions that are given sense only by and within the practice; the practice consists inlarge part in deploying and arguing about these propositions.

. . . the historian cannot understand law as an argumentative social practice . . . untilhe has the participants’ understanding, until he has his own sense of what counts as a goodor bad argument within that practice. (1986: 13–14, my emphasis)

The main point here seems to turn on the question of what one must know or expe-rience so as to be able to understand a social practice such as law. Yet the distinction drawn here by Dworkin between a sociological or historical approach tolaw and a ‘jurisprudential’ one (1986: 14) indicates that he is dealing with two sep-arate questions in one breath. The question of whether a causal explanation of socialpractices is possible, and if so, whether and to what extent it is preconditioned by aninterpretative explanation, is a rather familiar issue, extensively debated in the

The Argumentative Character of Law 39

philosophy of social science.6 But the question we are facing now is entirely differ-ent: it pertains to the role of the participants’ point of view in an interpretativeexplanation. The two should be kept distinct, since answering the latter requires noreference whatsoever to the former (although, the opposite may not be the case).

Dworkin’s answer to the second question would seem to run as follows: in thepractices he has classified as ‘argumentative’, the intelligibility of certain require-ments of the practice depends on understanding concepts or propositions ‘that aregiven sense only by and within the practice’. But the term ‘argumentative’ may bemisleading here. Consider games, for instance: terms such as ‘checkmate’, ‘goal’,etc are clearly ‘given sense only by and within’ a certain game. Let us call these‘institutional concepts’, concepts which gain their very meanings from the exist-ence of a practice or institution. Certainly, one needs to know the pertinent prac-tice in order to understand these terms. Someone with no idea of what chess is, forinstance, would have to be taught the rules of the game (and perhaps, in some cases,the point of playing games at all) in order to understand what a ‘checkmate’ is.

The same point, however, can be taken a step further: background knowledge isnot confined to institutional concepts. Clearly, for instance, a knowledge of thepertinent natural language is also required to render the requirements of law intel-ligible. Furthermore, recall Searle’s argument that the literal meaning of sentencesis only applicable relative to a set of background assumptions.7 What emerges thenis a multi-layered picture of the necessary background knowledge which makes thepropositions of a social practice intelligible. Needed at some basic level is a know-ledge of the natural language, which in fact amounts to knowing a great deal aboutthe world as it is experienced and conceived of by the pertinent community. Yetthe closer the attention paid to institutional concepts, the more necessary itbecomes to know about the particular background of these concepts. The natureof the background information required here may also vary according to thenature of the concept. In some cases the institutional background is very specific,a particular game for instance (as in the case of understanding ‘checkmate’), or aparticular theory (required to understand ‘quantum’, for example). In other casesit is much more holistic, absorbed in large portions of our knowledge (forinstance, the concept of ‘contract’).

These considerations thus establish that social practices are intelligible only rel-ative to a body of background information, knowledge of which any interpretereither shares already, or must acquire. Does this prove the hermeneutic thesis?Clearly not. It only shows that in a familiar sense, all statements or propositions,especially those employing institutional concepts, are only intelligible against acomplex background. But as we have seen, the hermeneutic thesis presents astronger claim than this. It contends that participants’ and theorists’ interpreta-tions must adopt one and the same normative point of view. Nothing in the necessity of background information can be taken to establish this.

6 See eg Taylor (1971) and (1985). See also Winch (1958), and cf Maclntyre (1973).7 Chapter 2, sect 2.


Dworkin, I believe, would reply that I have missed a point here. It is not thenecessity of background knowledge on which he relies, but the fact that it is con-troversial, and that these controversies form an essential part of the practice itself.(Perhaps this is why he calls such practices ‘argumentative’.) Note, however, thatthe possibility of normative statements from a point of view does not depend onthe assumption that the pertinent point of view is uncontroversial, either in itsconcrete judgments, or in the background assumptions that make the statementsintelligible. Nor do I think that Dworkin would wish to deny this. As we have seen,the debate concerns the relevant point of view with regard to the concept of law,not its particular requirements. Nevertheless, Dworkin sees the problem of con-troversy as pertinent here.

Consider the following improvisation on a rather familiar example: while not avegetarian myself, I could still tell my friend, whom I know to be a devout vege-tarian, not to eat a certain dish, since it contains fish. According to Raz, I thusmake a normative statement from a point of view. Now, suppose that it is contro-versial among vegetarians whether fish should or should not be eaten. Supposefurther, that this controversy is due to different conceptions vegetarians holdabout the nature and point of their practice. Should this make any difference withregard to my ability to make a detached normative statement?

To begin with, we must distinguish between two possible cases. First, perhapsthere is a problem of identity here pertaining to the concept of vegetarianism: isvegetarianism a single normative practice or are there, for example, two such prac-tices, one prohibiting the consumption of fish and the other allowing it? Thus, insaying ‘according to vegetarianism, A should not eat fish’, I might be making themistake of over-generalization. I should have said, ‘according to one school of veg-etarianism, A should not eat fish’, or something to this effect.

Alternatively, if it is not a question of identity, the issue of controversy boilsdown to the problem of applying rules to novel cases. It will not do just to repeathow the rule has been applied, since the case in question is a new and, so far, unset-tled one. Here (and this has nothing to do with the nature of the backgroundinformation required to understand a social practice), Dworkin would argue thatboth the participants and the theorists would have to decide what vegetarianism‘really requires’ (1986: 64), that is, in such a way as to present it in its best light.This, I take it, is the main argument offered by Dworkin in support of thehermeneutic thesis, and it is to this argument that I now turn.

As a first step, it is important to note that Dworkin makes two distinct pointshere. First, that the explanation of a social practice, like law or the arts, is essen-tially interpretative, and as such, necessarily value laden. Second, that the inter-pretation of such social practices, which Dworkin calls ‘argumentative’, is uniquein the sense that the practice itself is an evaluative enterprise, and that therefore theinterpreter of such a practice must form an evaluative judgment of her own aboutthose values which are inherent in the practice that she purports to interpret. Suchevaluative judgments, Dworkin claims, are not essentially different from the kindof evaluative judgments made by the practitioners themselves.


I have nothing to say against the first thesis. I think that it is true that an inter-pretation of a social practice is value laden. In fact, this is true about any theorywhatsoever. No theory, whether interpretative, scientific, or other, is free fromevaluative judgments. After all, no complete theory is just a list of descriptions thatthe theorist purports to offer. Theories are based on various evaluative judgments.Those must include, for example, certain judgments about what counts as criteriaof success for the kind of theory in question, judgments about what is it that thetheory should try to explain, what are important aspects of the subject-matter, andless important ones, and so on and so forth. So any theory is value-laden in thisrespect and I doubt that legal positivists have ever denied this. Perhaps HLA Hartmay be thought to have denied even this modest aspect of the evaluative dimen-sion of jurisprudence, but I do not think that this would be quite accurate. Hartdid not deny the fact that jurisprudence (just like any other theory, whether inter-pretative or not), must rely on certain meta-theoretical evaluative assumptions asthe ones mentioned above. I think that what he denied is the further contentionthat such evaluative presuppositions prevent the theory from being neutral in amoral, political, sense. And in this he may have been quite right, because the the-sis about the impossibility of neutrality actually derives from Dworkin’s secondthesis, one which is misguided, indeed. Let me explain.

Recall that according to the second thesis that Dworkin advances, it is the sub-ject matter of interpretation in the case of legal theory that makes all the difference:Because the law is a normative practice, the interpretation of the practice is boundto be normative-evaluative as well. In the case of law, the interpreter, Dworkininsists, must make her own judgments about the values which are really inherentin the law, judgments that are not essentially different from those of the particip-ants’ themselves. Without relying on such judgments the interpretation of legalpractice cannot be carried out; how else would one succeed in presenting the legalpractice in its best light, that is, unless one relies on certain views about the valueswhich are inherent in the practice one strives to interpret? But this last move isquestionable. What Dworkin seems to ignore here is that there is a crucial differ-ence between forming a view about the values which are manifest in a social prac-tice, like law, and actually having evaluative judgments about them.

Consider the example of vegetarianism mentioned earlier. When I try to under-stand what vegetarianism is about, so that I can better understand the controversyabout, say, whether it prohibits the consumption of fish as well, I must form someviews about the ways in which vegetarians conceive of their practice and the val-ues they associate with it. That seems quite right. But surely it does not follow thatI must rely on my own judgments about those values, and decide for myselfwhether I agree with them or not. Forming a theoretical view about the valueswhich are inherent in a given practice, and make sense of its requirements for theparticipants, is not the same as forming an evaluative judgment about those values, and the latter is not entailed by the former. I think that this is precisely thesense in which Hart denied, and rightly so, that jurisprudence cannot be neutral.An account of the values which make sense of legal practice does not commit one


to forming any particular evaluative views about them. I can certainly understand,for example, the moral assumptions which make sense of certain vegetarian prac-tices and beliefs, without having any particular evaluative views about those moralassumptions; I need not decide for myself whether they are sound or not.

It seems to me that the only reason for Dworkin to deny this distinction derivesfrom the constructive model of interpretation, namely, from the thesis that anyinterpretation must strive to present its object in its best possible light, that is, bestall things considered. If this is true, then there is some plausibility to the claim thatany interpretative understanding collapses into judgment. If the only way toaccount for the nature of vegetarianism is to undertake the task of trying to presentit in its best possible light, then perhaps it is true that the interpreter must form hisown evaluative judgments about those values which could best justify vegetarian-ism. In other words, Dworkin’s argument about the identity of theory and practicedepends on one crucial aspect of his theory of interpretation, namely, the idea thatinterpretation must always strive to present its object in the best possible light.However, we have already seen that this aspect of the constructive model is veryproblematic. This linkage between interpretation and ‘the best’ is both under-motivated and often impossible. But at least now we can see why Dworkin insistson it. Without it, Dworkin’s thesis that legal theory, as an interpretation of a socialpractice, must rely on those same kind of evaluative judgments that the practition-ers themselves supposedly entertain, remains unfounded.8

The truth is, however, that even if we accept Dworkin’s thesis that interpreta-tion must strive to present its object in its best light, it may still not follow that thekind of evaluative judgments that legal theory must rely on are necessarily thesame as those judgments that judges and other practitioners are expected to make.For judges and other actors in the legal practice, the law purports to create reasonsfor action. They must regard the law as normative, guiding their conduct. Thus,from the perspective of the practitioners, it would make perfect sense to say thatthe interpretation of the law is partly a matter of moral judgment. They mustdecide which interpretation makes better moral sense. However, for the legal the-orist, ‘the best possible example of its kind’ does not necessarily mean morallybest. What it does mean would depend on the purposes of a theory about thenature of law. Only if you think that the main purpose of such a theory is to justifythe law, to explain why would anyone have reasons to obey the law, then it may bethe case that ‘the best’ is a moral best. But this is only one general question aboutlaw that one can ask, and as far as traditional jurisprudence is concerned, it is cer-tainly not the main question. Analytical jurisprudence first and foremost strives tounderstand what the law is. It is a theory about the nature of law, and not aboutthe obligation to obey it. The question of whether there is an obligation to obey thelaw is a separate kind of question, and one which is quite obviously a moral one.

8 Stephen Perry (1995) has also argued that jurisprudence must rely on moral argument. For mycritic of Perry’s argument, see Marmor (2001: 153–59).


5. CONSTRUCTIVE INTERPRETATION AND THE PRINCIPLE OF CHARITY

I would like to conclude this chapter with an examination of an alternative line ofreasoning which might be thought to support Dworkin’s theory, that is, the prin-ciple of charity. Although Dworkin himself refers to this option only briefly (1986:53), there is a striking similarity between his account and some of the existingattempts to apply Davidson’s principle of charity to the realm of social explana-tion. Recall that according to the principle of charity, ‘the general policy . . . is tochoose truth conditions that do as well as possible in making speakers hold sen-tences true when (according to the theory and the theory builder’s view of thefacts) those sentences are true’ (Davidson 1984: 152). As I have already mentionedin the previous chapter, this principle makes sense, on Davidson’s own account,only within a holistic conception of language and thought. One thing should thusbe clear from the outset: the constructive model is not entailed in any straightfor-ward sense by the principle of charity. Nor do Davidson’s further conclusions,denying the possibility of conceptual schemes (Davidson 1984: 193–98), have anydirect bearing on our present concern. The hermeneutic thesis is not a denial ofconceptual schemes or of radically different minds. My question then is this: isthere any other form, perhaps less direct, in which Davidson’s principle of charitycould support Dworkin’s constructive model?

Consider the following account. Root, exploring the application of Davidson’stheory to social explanation, argues that the principle of charity ‘tells against theidea that there may be a great difference between the perspective of the insider andthe perspective of the outsider. Charity counsels the outsider to attribute a per-spective to the insider that is very close to her own’ (1986: 291). I take it that whatRoot has in mind is not the hermeneutic thesis, but a somewhat weaker principle.Nevertheless, his arguments are instructive. He identifies three main features inDavidson’s concept of interpretation that have a bearing on social explanations:(1) that interpretation is holistic; (2) that it is critical and normative; and (3) thatthe norms of interpretation are the norms of rationality. Most interesting is Root’scharacterization of the second and third features, in terms of the ‘reflexivity’ ofinterpretation. Since the norms that guide interpretation are the norms of ratio-nality, ‘the norms of interpretation are the norms that guide the interpreter . . . andthe interpreted as well’ (1986: 279), and ‘[a]s a result, the critical principles thatguide interpretation will limit the differences between the participant’s account . . . and the interpreter’s account’ (1986: 291). Root, however, is careful to avoidan obvious mistake. He acknowledges that the ‘principle of charity does not pre-clude disagreement; what it precludes is inexplicable disagreement’ (1986: 287).Nevertheless, he claims that ‘[A]ccording to Davidson, a weighted majority of thebeliefs that the interpreter attributes to her subject must be beliefs that, on theinterpreters own view, are true’ (1986: 285). But the point is that even this seem-ingly modest formulation should have been further qualified. First, recall the


problem of incommensurability; ‘rationality’ is not a magic word capable of dismissing it. I do not intend to argue that there are radically different minds (orcultures), so different from our own as to make them inscrutable. The problem ofincommensurability is a domestic one, as arguments in the previous section havepointed out. The idea that there is one principle of rationality guiding our behav-ior, that is, even within our own culture, is far from obvious. But unless such aunified concept of rationality is presumed, it cannot be concluded that interpreta-tion is necessarily guided by the same norms as the interpreted. Furthermore, themore general (and hence perhaps more plausible) the principles of rationality aretaken to be, the less bearing they will have on the interpreter-subject relation.

Secondly, and more importantly, Root seems to be content to apply the prin-ciple of charity as a heuristic principle of interpretation of particular actions orpractices. This takes the principle of charity closer to Dworkin’s constructivemodel, but much further away from the truth. Root’s mistake is due to the fol-lowing unwarranted inference: suppose we concede Davidson’s general assump-tion that disagreement of any kind is intelligible only against a background ofagreement (Davidson 1984: 153). It clearly does not follow that each particularinterpretation must attribute beliefs to a subject in such a way as to make most ofhis beliefs true. Davidson himself (and Quine for that matter), cannot be accusedof this non sequitur. When Davidson refers to ‘a speaker’, or a subject, it is aspeaker of a natural language, qua speaker of such language. (Recall Davidson’sown proviso on the applicability of radical interpretation to a ‘passing theory’.) Asfar as the principle of charity is concerned, people who believe in voodoo can beinterpreted as being utterly mistaken. The fact that one cannot understand voodoounless one understands a great deal about these people does not entail that theinterpreter has to attribute any true beliefs about voodoo to anyone, let alone pre-senting voodoo in its best light.

The inevitable conclusion, therefore, is that despite apparent similaritiesbetween the principle of charity and constructive interpretation, the two are essen-tially different, and the former can lend the latter no support.

I believe that we are now in a position to draw conclusions. As we have seen,according to the traditional view of analytical jurisprudence, legal theory com-prises inter alia a theory of adjudication which concerns the unique features ofjudicial reasoning. The hermeneutic thesis challenges this division. It contendsthat jurisprudence is basically a theory of adjudication, as both amount to one andthe same form of interpretation, namely, imposing a point, purpose, or value on apractice in order to present it in its best possible light.

In this chapter, I have argued for the rejection of the hermeneutic thesis. Thissuggests a need to shift from an interpretative account of jurisprudence to thebroader (and traditional) conception of jurisprudence as comprising a theory ofinterpretation. Interpretation is part and parcel of the legal practice.Jurisprudence should comprise a theory to account for this, a theory which is notitself an interpretation of the law, but a philosophical account of what it is tointerpret the law.

Constructive Interpretation and the Principle of Charity 45

4

Coherence, Holism, and Interpretation:The Epistemic Foundation of

Dworkin’s Legal Theory

THE CONCEPT OF coherence has always been of fundamental impor-tance to Dworkin’s legal theory. A legal system, he has repeatedly argued,comprises not only the settled or conventionally identifiable law, but also

those norms which can be shown to fit or cohere better with the best theory of thesettled law. Later it has become clearer, however, that the concept of coherencealso plays a crucial role in the epistemic foundations of his legal theory. Thus, wecan discern two distinct levels to which the concept of coherence is pertinent: thelevel of content, to which it applies as a basic value of political morality, and thelevel of method, recently articulated in the form of a theory of interpretation. Thischapter will propound the view that the roles assigned by Dworkin to coherenceon the two levels of his theory of interpretation, are not easily reconcilable.

I shall begin the discussion with a few observations about the concept of coher-ence in general and about Rawls’s ‘reflective equilibrium’ in particular—a thesiswhich has influenced Dworkin’s thought considerably. I shall then turn to a closerexamination of the epistemic foundations of Dworkin’s theory of interpretation,focusing on the relations between the various dimensions of interpretation he pro-poses, that is, identity, fit, and soundness. I will argue that a construal of thesedimensions in the light of a coherence theory of knowledge constitutes an inter-esting reply to the brand of skepticism regarding interpretation which is raised byStanley Fish, but that it also casts a shadow on another reply to Fish that Dworkinputs forward. Finally, will outline the difficulties which arise when this interpreta-tive structure is applied to Dworkin’s jurisprudence, where coherence also plays asubstantive role, as entailed by his thesis of ‘law as integrity’.

1. THE REFLECTIVE EQUILIBRIUM

Coherence and holistic theories of knowledge have received increasing philosoph-ical attention since the publication of WVO Quine’s ‘Two Dogmas of Empiricism’(1953). This pair now seems to dominate the main trends in epistemology, on the

ruins of traditional empiricist foundationalism. Kuhn’s contribution to ourunderstanding of scientific knowledge (1962), and Rawls’s elaboration of thereflective equilibrium as the epistemic foundation of his A Theory of Justice (1971),would seem to have completed this philosophical revolution. Yet as Kuhn himselfhas taught us, a shift in the paradigms of a discipline does not solve its problemsbut rather engenders new puzzles. Substituting coherence for foundationalismdoes not seem to be an exception.

Any theory of knowledge based on the concept of coherence faces two immedi-ate difficulties. First, coherence is typically meant to designate something morethan mere logical consistency. But it is not quite clear just what this additional fea-ture is taken to be.1 Consider the pair of propositions: ‘One should always obey thelaw’ and ‘All swans are white.’ The two are quite obviously consistent but there ishardly any sense in which they can be said to be coherent. One is tempted to saythat coherence is the requirement of consistency as applied to theories. This wouldmake the example irrelevant since the two propositions cannot be conceived of asbelonging, together, to any theory whatsoever. This answer, though perhaps basic-ally correct, is insufficient. In fact, it begs the question, for in what sense is a theorymore than a set of consistent propositions? In other words, it only pushes the ques-tion one step further.

The second and more interesting difficulty encountered by a coherence-basedepistemology concerns the relation between coherence and truth. There is a famil-iar sense in which we think that these two notions are intimately linked. We wouldnormally assume that a set of incoherent beliefs cannot, ultimately, be true.Perhaps in the domain of morality, this is not necessarily the case. It is possible toargue that moral principles, even if we hold them to be objective and true, cannotbe comprised of a set of coherent principles, because the contradictions betweenthem reflect genuine contradictions inherent in our moral lives, or entailed by thevery nature of our social lives, etc.2 Such a view would not necessarily be a skepti-cal one. Be this as it may, the essential point is that even if we maintain that a setof incoherent beliefs cannot be true, it does not follow that a coherent set is likelyto be true. With one exception: there are philosophical attempts to explicate thenotion of ‘truth’ itself in terms of coherence alone, that is to say, as a repudiationof the correspondence conception of ‘truth’. Coherence, in this sense, is employedto explicate what ‘truth’ means or consists in: when saying that a proposition, p, ‘istrue’, the only thing we can mean is that p is consistent with other propositionswhich we also hold to be true. Not surprisingly, if you hold such a coherencetheory of truth, a coherence theory of knowledge would naturally follow.

A coherence theory of truth, however, is not a very popular philosophical position. There is no need to repeat the well-known difficulties involved in suchan explication of the meaning of truth.3 Opponents of the correspondence

1 Cf MacCormick (1984).2 Cf Nagel (1979). If I have understood him correctly, Bernard Williams (1981) also seems to hold

such a view.3 See eg Russell (1959: 119–23). See also Davidson (1986a).

48 The Epistemic Foundation of Dworkin’s Legal Theory

conception of truth usually prefer to abandon the notion of truth altogether,4 or—taking a less skeptical attitude—to construe it as a ‘primitive’ notion which resistsfurther analysis or reduction of any kind.

A coherence theory of knowledge, on the other hand, is best seen as a rejectionof foundationalism. Foundationalism (both in its traditional empiricist and ratio-nalist manifestations) amounts to the claim that some of our beliefs, within a givenrealm of knowledge, do not require any justification; they constitute the founda-tions of knowledge. Hence the foundational propositions cannot be refuted by therest of the theory, but only vice versa. At the opposite pole, coherence conceptionscan take two possible forms. According to a strong coherence theory, none of ourbeliefs should be taken to constitute the foundation of a realm of knowledge, allthe propositions in a given realm requiring equal justification. Thus the only per-tinent epistemic criterion for the correctness of theories is logical consistency.Patently, this is a highly implausible view, if for no other reason than the fact thatthere are infinite possibilities of constructing sets of consistent propositions. (Andindeed, it is questionable whether anyone has ever held such a view.)

The second and much more plausible version of a coherence theory of know-ledge runs more or less as follows: some beliefs have a quasi-foundational status,in the sense of not initially requiring any justification. However, even these quasi-foundational beliefs are not exempt from possible refutation at some later stage,when the theory has been fully articulated. This could be put, roughly, as a matterof priority. As opposed to foundationalism, such a theory assigns to consistencyamong the total relevant set of beliefs, precedence over the force of those beliefsthat constitute the foundations.

Once the notion of coherence as an explication of the meaning of truth is aban-doned, however, coherence theories of knowledge run into serious difficulties injustifying this precedence. I shall exemplify these difficulties through the case ofthe application of a coherence theory of knowledge to moral theory.5

There is presumably an indefinite number of possibilities of constructing sets oflogically consistent moral principles. Hence, the first question facing advocates ofa coherence theory of morality is how to choose among the possible sets of moralprinciples. Rawls’s proposal of a reflective equilibrium (1971: 34–53) seems to pro-vide the most attractive and comprehensive answer to this question. The values orprinciples must be consistent not only among themselves but also with an addi-tional set of judgments, namely, our firmly held intuitions. As Rawls himselfadmits, this does not provide a logical solution to the problem of indefiniteness,but it at least imposes a practical constraint. It is quite implausible to assume thatseveral theories could be constructed so as to be coherent with all our actual moral

4 In fact, there are two versions of this redundancy conception of ‘truth’. According to the kind ofpragmatism advocated by Rorty (1982), the notion of truth is epistemically redundant. According toothers, ‘truth’ is semantically redundant. The proposition ‘it is true that p’ is, on this view, semanticallyequivalent to the proposition that ‘p’. See Strawson (1969).

5 On an attempt to solve the problem in a manner different from the below, see Davidson (1986a).An examination of Davidson’s suggestions, however, would exceed the scope of this chapter.

The Reflective Equilibrium 49

intuitions. On the contrary, it even seems highly unlikely that a single set of coher-ent principles might account for all of our actual moral intuitions. Hence thenotion of a reflective equilibrium. Our intuitions and the moral principles must bemutually adjusted in a special manner. First, the intuitions taken into account areonly those which are held firmly and meet certain conditions.6 Second, in theprocess of constructing the moral theory, some of our intuitions must be amendedor even jettisoned in the interests of consistency with the principles. Third, Rawlsassumes that the relation between principles and intuitions may, in certain cases,be self-reflective; once the principles are fully articulated, we may want to changeour initial intuitions or view them in a different light.

Now Rawls’ model of the construction of moral theories,7 attractive as it mayseem, raises two difficult, interrelated questions. First, it is not at all clear why thefact that we can reach an equilibrium between our firmly held moral intuitionsand general principles serves to justify the epistemic precedence of coherence overthe force of our firmly held intuitions. Suppose we have discerned that we have aset of n firm moral intuitions, yet the most coherent set of moral principles, say P,can account for only n–1 of these. If we assume that intuitions reflect correct moraljudgments, which apparently we must as it would otherwise be pointless to rely onthem, it is not clear why we should prefer P to a continued adherence to our orig-inal set of n judgments. Suppose another coherent set of principles, Q, accountsfor only n–5 intuitions. If we have a reason to prefer P to Q, it is that more truth,so to speak, is covered by the former. But then, holding the initial position wouldbe even more truthful.

This leads us directly to the second problem pertaining to Rawls’s model,namely, the highly problematic status it assigns to intuitions. On the one hand,they must be held to be true in order to function as constraints on the availablemoral principles. On the other hand, we must be prepared to disregard or jettisonsome of them for the sake of the moral theory’s coherence. Can we really have itboth ways?

The alternative conclusion seems to be that only (a set of) coherent moral intuitions can be true. This is a very troublesome idea, though, as we know thatdifferent sets of coherent moral principles would account for different sets of intu-itions. Suppose theory P is coherent with n–a intuitions, and theory Q with n–bintuitions (where n stands for all our firmly held moral intuitions). This wouldcompel us to say that a is true and false; it is true in Q but false in P. Needless tosay, this result is very uncomfortable unless, of course, one subscribes to a coher-ence theory of truth as well. To sum up, the assumption that intuitions are inde-pendently true and the converse one, that their truth depends on fitting a coherentscheme, both seem to yield paradoxical results.

6 Which is why Rawls does not use the term ‘intuitions’ in this context but ‘considered judgments’(1971: 47).

7 It is not entirely clear whether Rawls would apply the reflective equilibrium to the construction ofmoral theories in general, or only to a theory of justice.


In one of his earlier articles, titled ‘The Original Position’, Dworkin (1975) pre-sented his own interpretation of the reflective equilibrium, one which might bethought to have averted some of the difficulties of Rawls’s position.

Dworkin considers two possible construals of the reflective equilibrium as anaccount of the construction of moral theories. The ‘natural’ model presupposesthat moral principles are discovered rather than created. That is, our moral intu-itions, and accordingly the principles which emerge from them, are clues to theexistence of some moral reality. The other, ‘constructive’ model, ‘does not assume,as the natural model does, that principles of justice have some fixed, objectiveexistence, so that descriptions of these principles must be true or false in somestandard way’, but rather that ‘men and women have a responsibility to fit the par-ticular judgments on which they act into a coherent program of action’ (1975: 28).In other words, the natural model presupposes some form of ethical realism, whilethe constructive model does not. One important difficulty arising from an attemptto apply the natural model to Rawls is, that under the natural model, any theorywhich does not account for an intuition, at least for one which is held firmly, cannot be wholly satisfactory, just as a scientific theory which does not account forcertain observational data it is supposed to cover, would not be satisfactory in afamiliar way. Hence Rawls, Dworkin claims, cannot be taken to be an ethical real-ist. Imposing the natural model on Rawls would be inconsistent with one of themain features of the reflective equilibrium, namely, the claim that we are justifiedin neglecting or discarding some of our intuitions for the sake of coherence. Suchconcessions from the perspective of the natural model ‘would be nothing short ofcooking the evidence’ (1975: 32). We are thus left with the constructive construalof the reflective equilibrium; but what, exactly, is this model? Dworkin says, ‘[i]tdemands that we act on principle rather than on faith. Its engine is a doctrine ofresponsibility that requires men to integrate their intuitions and subordinate someof these, when necessary, to that responsibility’ (1975: 30). Consider the twodifficulties raised by the model of reflective equilibrium described above.Dworkin’s answer to the question of why coherence justifies the moral theory isbased on considerations of political morality, that is, a doctrine of responsibility:

It is unfair for officials to act except on the basis of a general public theory that will con-strain them to consistency, provide a public standard for testing or debating or predict-ing what they do, and not allow appeals to unique intuitions that might mask prejudiceor self-interest in particular cases. (Ibid, my emphasis)

The main thing to notice here is the fact that Dworkin regards coherence as a valueof political morality. It is a constraint to be imposed upon officials for the sake offairness.

His answer to the question of the status of intuitions is somewhat more obscure.Intuitions are not to be considered as true ‘in some standard way’. But we are notenlightened as to what this is, or told in what other sense they can be consideredtrue. I believe that by ‘standard way’ Dworkin has in mind a correspondence conception of truth, according to which moral judgments are true when they

The Reflective Equilibrium 51

correspond to some reality, just as the proposition ‘there is a chair in this room’ istrue if and only if there is a chair in this room. Dworkin is quite unclear about any(other) sense in which moral convictions might be true, apart from determiningthe fact of their existence, that is, that people have these convictions and that theyare indeed convictions: The constructive model ‘takes convictions held with therequisite sincerity as given, and seeks to impose conditions on the acts that theseintuitions might be said to warrant’ (1975: 31, emphasis mine).

In short, Dworkin is saying that people have moral convictions which they typ-ically take to be true. However, he is not interested in an account of how it is thatsuch intuitions can be true or of what their truth consists in. Instead, he turns to adifferent question, of what is the fair and just scheme within which such convic-tions ought to be taken into account and constitute reasons for actions, especiallyin the public domain. Officials, he submits, should be allowed to act upon theirmoral convictions only to the extent that these convictions can be invoked withina coherent scheme of principles. These two points, taken together, constitute aninteresting and rather unique version of a coherence theory of political morality.8

On the other hand, regarding the constructive model as a basis for a moraltheory’s construction, that is, as a methodological alternative to the natural model,will raise the following difficulty: it simply cannot serve as an alternative in the rele-vant sense. To reiterate: the main problem with the natural model is that if thetruth of one’s moral convictions is presupposed, a coherence conception whichrequires neglecting the truth in some cases cannot be justified. Hence, coherenceshould be ignored or at least assigned second priority (as, for example, an idealwhich one might some day hope to achieve). The constructive model propoundedby Dworkin as an alternative averts both the question of whether our moral con-victions are really true, and that of what their truth consists in; it introduces coher-ence as a moral constraint on public reason. However, if coherence is justified, asit is here, with reference to certain moral values, that is, a specific conception offairness, then we face the following problem: the presupposed values of fairnessmust themselves be based upon intuitive convictions, in which case the questionof their truth cannot be ignored. If they are taken to be true (in ‘some standardway’?) we are driven back to the perplexities of the natural model. (Recall that onecannot adopt a skeptical attitude here since this skepticism would affect the valueof coherence as well.)

It would seem that the only way of escaping this circularity is to maintain thatthe basic values of fairness Dworkin relies upon have some foundational status ascompared with other moral convictions. This, however, will not do. First, becauseit is false, simply as a matter of fact. Most people’s conviction that it is morallywrong to torture children just for fun, is probably much more firmly held than anyconvictions they have about political fairness. Secondly, and more importantly,

8 A similar, though not identical, strategy is adopted by Rawls himself in his later writings. See Rawls(1980) and (1985). However, my critical remarks in the following pages are not meant to have anydirect bearing on Rawls’s recent formulation of his theory. For a similar line of thought with respect toRawls, see Raz (1990).


such a view would amount to a foundationalist, rather than a coherence theory ofmorality, which is what both Dworkin and Rawls wanted to avoid.

All this indicates that Dworkin’s interpretation of the reflective equilibriumactually constitutes a shift from a coherence theory of morality (that is, in the epis-temological sense) to a moral theory which endorses coherence as one of its basicvalues. In this case, much of the text remains largely unclear (for example, why isthe whole model discussed as an alternative to the natural model, that is, ethicalrealism? Why is it presented as an interpretation of Rawls who undoubtedly takescoherence to be an issue of method?) though logical perplexities are at leastavoided. Nonetheless, it must be clear that such a move can offer no alternative toethical realism or, for that matter, to any other meta-ethical stance. Its brand ofcoherence can offer no method of choosing between rival theories since it is itselfa substantive moral principle that rests upon substantive moral convictions.

2. IDENTITY, FIT, AND SOUNDNESS

At a later stage in his thought, when Dworkin comes to elaborate on the epistemicfoundations of his interpretative theory, his conception of coherence becomesmuch more meticulous. In his interpretative theory of law, Dworkin clearly dis-tinguishes between the role played by coherence at the methodological level,namely, in the form of a coherence theory of knowledge, and at the level of sound-ness, namely, as a particular value of political morality. In other words, Dworkin’sconcept of interpretation presupposes a coherence theory of knowledge which,however, once it is applied to law, must leave room for coherence as a distinctvalue, as entailed by his concept of ‘integrity’. As such a value, coherence is ren-dered a guiding principle for one particular interpretative strategy which may bechosen from among various others. Law as integrity urges judges to grasp theiradjudicative assignment as guided primarily by concern with the moral value ofcoherence. Judges ought to interpret past legal decisions only in a way and to theextent that would render (or reveal?) these past political decisions consistent inprinciple.

From a methodological perspective, there are two main challenges Dworkin’stheory of interpretation must meet. Recall that according to the constructivemodel, any interpretation strives to present its object in the best possible light, asthe best possible example of the genre to which it is taken to belong. So one clearproblem pertains to the kind of evaluative judgments involved and the possibleskepticism about their objectivity or truth. Is there really a truth of the matter, forexample, about the kind of values which make novels good (or bad)? And even ifthere is such a truth, how can we come to know it? But in addition to this obviousworry about the objectivity of values, there is another problem here. A text couldnot be presented in the best light or, in fact, in a better (or worse) light, if we cannot have a firm conception of what the text is. The requirement of presentingan object in its best light makes sense, only if rival interpretations are indeed

Identity, Fit, and Soundness 53

interpretations of the same object. So unless we know what the object is, any talk ofa better or worse interpretation would make no sense. The very idea of a con-structive model of interpretation presupposes the availability of constraints. Butare there any such constraints? Dworkin believes so. His answer is very subtle,though, and needs careful explication.

Considered as a process, interpretation comprises the pre-interpretative, theinterpretative and the post-interpretative stages. Considered structurally, it containsthree elements: identity, fit, and soundness (1986: 65–72). Let us consider the struc-tural dimension first. When approaching an interpretative activity, one must firsthave an idea of what it is that is to be interpreted. In other words, one must identifythe relevant text. The second feature, fit, renders the element of identity essential. Asthe soundness of a particular interpretation depends, at least roughly speaking, onhow it fits the bulk of the text, it is crucial to know just what the text is.

Dworkin’s concept of identity defines conditions which are rather weak in somerespects, and rather strong in others. They are weak in their emphatic renuncia-tion of the need for a precise identification of the boundaries of the text, so tospeak. This, at least, is the case when the text is a social practice, such as law. Oneof the initial conditions enabling interpretation to flourish within the practice, inthe case of law, is precisely the assumption that the extension of the practice is sen-sitive to its point or value (the other initial assumption being that it has a point orvalue). Furthermore, although we must typically be capable of pointing to para-digm cases as part of our identification of the text, in the sense that they are takento be parts of it if anything is, such a paradigm case is nonetheless never ‘securefrom challenge by a new interpretation that accounts for other paradigms betterand leaves that one isolated as a mistake’ (1986: 72).

However, the conditions outlined by Dworkin as defining the texts’ identityemerge as rather strong ones upon noting that the constructive model is verymuch genre dependent. Interpretation aims at presenting an object as the best ofits kind. An initial identification of the kind or genre is hence a precondition forany interpretation. But, as Dworkin himself readily admits (1986: 66), kinds andgenres do not carry identifying labels. More naturally, one would tend to regardthe designation of genres as products, rather than preconditions, of interpretation.We shall return to this point later on. At the moment, suffice it to say that identityimposes fairly loose conditions with regard to the texts’ extension and rather rig-orous ones with regard to the classification of its kinds or genres.

The concept of fit seems to play a double role in the scheme of interpretation.9

To explain, a few words must now be said on the process of interpretation. In thepre-interpretative stage we identify the text, at least tentatively. Dworkin empha-sizes two important features of this stage. First, that ‘some kind of interpretationis necessary even at this stage’ (1986: 66) (for example, consider the issue of iden-tifying genres, mentioned earlier). Second, for an interpretative enterprise to exist,that is, as a social practice such as literary criticism or adjudication, ‘a very great

9 Cf Alexander (1987).


degree of consensus is needed’ among interpreters with regard to the identificationof what counts as the text (ibid).

In the second, interpretative phase of the process of interpretation, the construc-tive model comes into play; an interpretation is actually offered. This tentative offeris then refined and rechecked in the course of the last, post-interpretative stage.

Now, returning to fit, it seems (though Dworkin is not explicit on this point)that the main difference between the interpretative and the post-interpretativestages is as follows: in the former, fit is basically a threshold requirement. The pro-posed interpretation ‘must fit enough for the interpreter to be able to see himselfas interpreting that practice, not inventing a new one’ (1986: 66, emphasis mine).But this may not be enough, as several and conflicting interpretations may fit thetext in this sense. The post-interpretative stage introduces another, more evalua-tive notion of fit. It involves the choice of that interpretation which is attributedthe better, or actually, the best fit. In other words, when fit operates as a thresholdrequirement, it is more like a necessary condition; the interpretation must accountfor enough parts of the text and must consider paradigm cases as such (with theproviso mentioned earlier). An interpretation of a novel requiring us to disregardevery second line in the book, or a legal theory claiming that statutes are not partof the law of England are easy examples of unfitness in this sense. Fit in the post-interpretative stage is more substantially evaluative. At the very least, it seems toassume that the more fit, the better. At this stage, the interpreter ‘adjusts his senseof what the practice “really” requires so as better to serve the justification heaccepts at the interpretative stage’ (ibid).

As Dworkin affirms explicitly, the echo of the reflective equilibrium sounds verystrong here. Once past the threshold requirement of fit, we must seek an equilibriumbetween the soundest value a text can be taken to manifest, and its features asidentified in the pre-interpretative stage. As he puts it in the case of law, the purposeof legal theory is ‘to achieve equilibrium between legal practice as [we] find it and thebest justification of that practice’ (1986: 90), see also (ibid 424). Note that it is areflective equilibrium since it involves a process of mutual adjustments (betweenidentity, fit, and soundness) in the Rawlsian sense explained in the previous section.

It would seem that all this leads to a coherence theory of interpretation. I shallpostpone the analysis of the theory’s coherence basis, however, as I believe that anexamination of Stanley Fish’s criticism will help reveal Dworkin’s deeper presup-positions.

3. THE FISH—DWORKIN DEBATE10

The pretext for Fish’s criticism is Dworkin’s metaphor of the chain novelists.Dworkin asks us to imagine a group of novelists who accept the following

10 Dworkin’s first articles on interpretation were criticized by Fish (1983a); Dworkin’s (1983)rejoinder was followed by Fish (19836). In Law’s Empire Dworkin referred to most of those issues again(eg pp 78–86, 424). Finally, see Fish (1987).

The Fish—Dworkin Debate 55

assignment: each is to write a single chapter of a novel that they would create col-lectively. The first author writes the opening chapter, and the rest will then addtheir consecutive chapters. Yet every novelist entering into this endeavor acceptsthe special responsibility of creating the best and most unified novel that he or shecan. Hence, ‘every novelist but the first has the dual responsibilities of interpretingand creating because each must read all that has gone before in order to establish,in the interpretivist sense, what the novel so far created is’ (1985: 158). Dworkinintends this metaphor to explain the role of judges in common law adjudicationin line with his conception of law as integrity: ‘Deciding hard cases at law is ratherlike this strange literary exercise. . . . Each judge is then like a novelist in the chain.He or she must read through what other judges in the past have written . . . to reachan opinion about what these judges have collectively done’ (1985: 159).

Fish has two main objections to the metaphor and its implications. First, heargues against Dworkin’s assumption that there is, or could be, any differencebetween the nature of the assignment given to first novelist in the chain and thatgiven to the rest. Dworkin assumes, so Fish claims, that the first novelist has apurely creative role, while the others must both create and interpret.

But in fact, the first author has surrendered his freedom . . . as soon as he commits him-self to writing a novel . . . the very notion of ‘beginning a novel’ exists only in the contextof a set of practices that at once enables and limits the act of beginning.

Moreover, those who follow him are free and constrained in exactly the same way. . . . That is, the later novelists do not read directly from the words to a decision about thepoint or theme of the novel but from a prior understanding . . . of the points or themesnovels can possibly have to a novelistic construction of the words. (Fish 1983a: 273)

Admittedly, this passage seems somewhat obscure but the main idea is clearenough and it is anchored in the concept of prior understanding.11 Uponapproaching a text, be it a novel or a legal precedent, we must already possess awhole set of convictions enabling us to grasp and refer to it as belonging to a certain kind of texts, that is, to assign it a specific location within our intellectualenvironment. These interpretative convictions do not usually rise to the surface,since they are strongly embodied in our cultural and professional ambience; theyare latently shared by groups of people who therefore constitute an ‘interpretativecommunity’.12 But still, Fish argues, one must realize that these convictionsamount to nothing more than the fact that they are convictions which happen tobe shared by a group of people at a given time and place; they manifest a certainconvergence of beliefs and attitudes which may easily change across time andspace.

One may well wonder whether Dworkin denies any of this. And why is it soimportant? The answer to the first question is that he certainly does not. The taskof the first novelist in the chain is not totally creative; surely, to begin a novel he

11 See Fish (1980: 268–92).12 Needless to say, the notion of an ‘interpretative community’ is drawn from Kuhn’s account of

‘scientific communities’ and their role in scientific inquiry. See his Scientific Revolution (1962, 1970).


must have some idea about what novels are, and such an idea is partly a matter ofinterpretation. Dworkin does not deny this.13 In fact, it is compatible with his viewthat interpretation is generally involved even in the pre-interpretative stage.Furthermore, Dworkin explicitly concedes that a rather substantive amount ofagreement between interpreters on points such as identifying features of genresand ‘texts’ is necessary in order for an interpretative enterprise to flourish. As helater came to admit, this kind of consensus is what constitutes an ‘interpretativecommunity’ (1986: 66). But the point is that all this may fail to answer the ques-tion, which is not what Dworkin says but whether what he says is consistent withhis theory. Fish, I think, is advancing the claim that it is not.

As far as I can see, the following argument, which is the second and main objec-tion to the chain novelists’ example, is an argument to that effect. The significanceof this ‘chain enterprise’ (that is, of law as integrity) says Fish, depends on theassumption that there is a defensible distinction between interpreting a text andchanging it or inventing a new one. But this distinction is unsustainable, he argues,since any reading or interpretation changes the text. The only way in which the text‘is there’ to be read or interpreted is determined by the convictions constituting theprior understandings of a given interpretative community.14 Furthermore, thisbody of shared convictions reflects nothing more than a convergence of beliefs,attitudes etc, which can change in time or from one community to an other. Thereis nothing in the ‘texts’ themselves, Fish contends, to warrant the conclusion thatthe prior understandings of one interpretative community are more correct thanthose of another; there are no textual facts, that is, facts which can be identifiedindependently of particular interpretations of them. Hence also, it is simply not thecase that the more text there is, the more constraints the interpreter faces.

Fish then goes on to draw two conclusions. First, that all interpretations are‘enterprise specific’. Neither a chain novelist nor a judge is able to ‘strike out in anew direction’. This is not a conceptual possibility, since any such move is eitherconceived of as an institutional possibility (that is, in accordance with the priorunderstandings shared by the interpretative community), in which case it wouldnot count as a new direction; or judged to belong to, or constitute, a separateenterprise, should it be so ‘new’ as to go beyond the boundaries of the prior under-standings (for example, a judge deciding a court case according to the color of theplaintiff’s hair).

Second, Fish claims, across the various enterprise-determined-options, no par-ticular interpretation can be identified as better (or worse), being measured onlywith reference to the prior understandings of the given enterprise and, ex hypoth-esi, necessarily compatible with it. In other words, if there are no textual facts inde-pendent of their interpretations, then there is no sense in speaking about ‘the best’

13 Although one must admit that Fish’s complaint is not textually groundless: at some pointDworkin (1985: 158), does seem to draw a distinction between the first novelist, whose task is creative,and the rest, who must both create and interpret. Dworkin’s later writings indicate that this was prob-ably just as a slip of the pen (or the keyboard, as the case may be).

14 See Fish (1983a: 281). See also Feyerabend (1972).


interpretation. An interpretation can, of course, be more or less persuasive withina given interpretative community, but this is a sociological criterion, not an epis-temic one.15

Roughly, then, Fish’s critic of Dworkin can be subsumed under one main the-sis: that there are no facts about the meaning of texts independent of particularinterpretations of them. If the text is not given prior to its interpretation, Fishclaims, there is nothing to constrain interpretations in the way Dworkin assumes,and therefore nothing to make one interpretation better than any other. To besure, I am not trying to suggest here that Fish’s thesis about meaning is tenable. Farfrom it. What makes this critic interesting, I believe, is the fact that it actuallypoints to an internal difficulty in Dworkin’s theory. That is so, because it would bevery difficult for Dworkin to deny Fish’s main premise, namely, the idea thatmeaning is somehow profoundly interpretation dependent.

Thus before continuing to Dworkin’s reply, it would be useful to see just why hefeels committed to subscribe to the premises of Fish’s argument. This is basicallybecause Dworkin wishes to avert the claim that interpretation is somehow concep-tually or semantically constrained from the outset. And the reason Dworkin wishesto deny this derives from his jurisprudence. So consider the case of law. Assuming,contra Fish, that there are legal texts which have a determinate meaning prior toany particular interpretation which one would impose on them, would basicallyentail that first we can understand, at least in some cases, what the law means, andthen there may be other cases in which we do not, and interpretation would be inplace. (Which is basically the position I defend throughout this book.) But this isprecisely the kind of view which Dworkin’s theory strives to deny. It is one of themain purposes of his ‘law as interpretation’ theory to show that understandingwhat the law is, is always a matter of interpretation, and hence always dependenton various evaluative considerations. If there is a sense in which the law can beunderstood without interpretation, then it is no longer the case that every conclu-sion about what the law is must involve evaluative considerations. In other words,it is an essential part of Dworkin’s argument against legal positivism that under-standing what the law means is always a matter of interpretation. Thus, even ifDworkin is reluctant to endorse Fish’s thesis that there are no textual facts whatsoever, he must at least concede that grasping the meaning of texts is alwaysa matter of interpretation.

Having said as much, we can return to Dworkin’s rejoinder to Fish. His refuta-tion of Fish’s criticism comprises two arguments. The first is based more explicitlyon the concept of coherence: ‘There is no paradox in the proposition that factsboth depend on, and at the same time constrain, the theories that explain them.On the contrary, that proposition is an essential part of the picture of knowledgeas a complex and interrelated set of beliefs confronting experience as a coherentwhole’ (1983: 293). The idea is as follows: we have already noticed that, in keepingwith its very concept, the constructive model requires some form of constraint.

15 See Fish 276–85. Basically, the same argument reappears throughout the debate with Dworkin.


However, accepting (as Dworkin does) the view propounded by Fish, that thetexts’ identification, which might be regarded as a constraint, is itself a matter ofinterpretation, might mean the inability of this element to operate as a constraintin any meaningful sense. In other words, Fish’s argument boils down to the claimthat Dworkin’s theory of interpretation involves a vicious circularity: interpreta-tion must be constrained by how much it fits with the text, but what the text is, andtherefore what would constitute sufficient fit, is itself dependent on the particularinterpretation one offers. Now, Dworkin admits to the circle inherent in his argu-ment, but denies that it is a vicious one. It would only be vicious under a very crudeversion of realism, according to which propositions are expected to match somekind of ‘brute facts’. In fact, Dworkin claims, even with regard to scientific theories, it is already a commonplace that facts can be theory laden, with no paradox attached: ‘It is now a familiar thesis among philosophers of science andepistemology, after all, that people’s beliefs even about the facts that make up thephysical world are the consequence of their more general scientific theories’ (1983:293). There thus seems to be no reason why interpretation should not be constrained by what the text means, even if it is true that the meaning of the textdepends on its interpretation.

One might still wonder what the answer really is. Have we not just admitted tothe charge of vicious circularity? We would have, Dworkin says, in one specificcase: were the relations between facts and theory not sufficiently complex. Again,consider scientific knowledge:

[T]he constraints of scientific investigation are imposed . . . by the internal tensions,checks, and balances of the complex structure of what we recognize as scientific know-ledge. Of course the constraint would be illusory if that system were not sufficiently com-plex and structured, if there were no functional distinctions, within that system, amongthe various kinds and levels of belief. But there are, and that is why scientists can aban-don theories on the ground that they are inconsistent with the facts deployed by theremaining structure of the body of knowledge. (1983: 293, emphasis mine)

This passage is of crucial importance, since it contains the core of Dworkin’s answerto the question of constraints. It provides an idea of what Dworkin presupposes inthe notion of coherence, and of how this may operate as an internal constraint. Butwe should proceed with caution. Although Dworkin moves back and forth fromholistic to coherence formulations of his theoretical assumptions, seeming toendorse both concomitantly, the two concepts are quite distinct. Both amount to arejection of foundationalism, but each gives this rejection a different form.

Holism urges the realization that the totality of our knowledge is a network ofinterrelated beliefs. As a consequence, it amounts to a rejection of the assumptionthat singular propositions can have empirical content in isolation.16 Holism, however, does not necessarily lead to a coherence theory. It is a negative view in thesense that it provides no answer to the question of a substitute for foundationalism,

16 According to Quine (1953), holism also amounts to a repudiation of the analytic-synthetic dis-tinction. This is a highly controversial issue. See eg Dummett (1978: 375 ff).


for which status a coherence theory of knowledge is only one candidate.17

Apparently, Dworkin endorses this option. In fact, he endorses a specific conceptof coherence, namely, one which rests on the idea of complexity. Since our systemof knowledge is ‘sufficiently complex and structured’, coherence amounts toachieving consistency between the various kinds and levels of beliefs, and it is thisfact which renders the achievement of consistency non-trivial.

On the other hand, it is important to realize that a coherence conception ofknowledge—as opposed to a coherence theory of truth—makes much more sensewhen it concurs with holism. If coherence is not offered as an explication of whattruth consists in, but is viewed as an indication of the truth, then the more encom-passing the coherence, the better the indication it is likely to provide.

I will return to this last point shortly. First, let us examine Dworkin’s secondreply to Fish. It takes up the challenge of skepticism implied by Fish’s argument.Dworkin begins by drawing a distinction between internal and external skepticism.The former is a skeptical attitude adopted from within the enterprise, whereas thelatter is a skepticism directed at the whole enterprise. ‘External skepticism is ametaphysical theory, not an interpretative or moral position. [His] theory is rathera second-level theory about the philosophical standing or classification of these [egmoral] claims’ (1986: 79). Internal skepticism, though grantedly a plausible atti-tude, ex hypothesi adopts the internal (for example, moral or aesthetic) point ofview. Hence it must rest on moral or aesthetic arguments. It follows that internalskepticism presupposes the general ‘right-wrong’ picture and argues only againstsome (or most) of our moral or aesthetic conclusions. Surely Fish’s argument cannot be grounded on this type of skepticism.18

But external skepticism, Dworkin claims, is harmless since it is irrelevant. Theexternal skeptic typically makes the following claim: the only way to give any senseto propositions of the form; ‘A moral judgment, p, is true’, is by assuming thatmoral judgments are meant to reflect some reality. Skepticism arises from thedenial that any plausible sense can be made of such a reality. Hence external skep-ticism only makes sense if it is true that we regard our evaluative claims as claimsabout some ‘external reality’.19 However, and here we reach the crux of the matter,the point is that we do not. Moral judgments can be justified or argued for, only byother moral judgments; aesthetic judgments can be justified only by other aestheticjudgments, and so forth. In other words, external skepticism denies a claim whichwe need not make, namely, that by affirming the objectivity of our evaluative judg-ments we refer to something external to the domain of those judgments:

17 Quine himself seems to have endorsed the pragmatist solution (1953: 46).18 It is somewhat difficult to see why the so-called ‘internal’ skeptic is a skeptic at all. But of course,

it is a possible position. Perhaps in referring to internal skeptics, Dworkin had in mind those legal theorists who deny the possibility of understanding the whole body of legal material on the basis of acoherent scheme of principles. Whether this is a genuine skeptical stance or just skeptical rhetoric is adifficult question I need not resolve here.

19 Elsewhere I have argued at lengths that this assumption is actually wrong: there is a sense in whichvalues can be objective without a commitment to metaphysical realism. See Marmor (1995: ch 6; 2001:ch 8).


The only kind of evidence I could have for my view that slavery is wrong, the only kindof justification I could have for acting on that view, is some substantive moral argument.

[T]he ‘objective’ beliefs most of us have are moral, not metaphysical, beliefs . . . theyonly repeat and qualify other moral beliefs. (1986: 81, 82)

Unfortunately, this answer is too crude even on Dworkin’s own account. It givesthe impression that moral judgments constitute a closed system, as it were, whichcan be organized coherently only within its own boundaries. But this is inconsist-ent with the holism which is required of, and indeed is manifest in, Dworkin’s firstreply to Fish. In other words, you cannot both maintain that morality is a closedsystem of beliefs which cannot be challenged by beliefs and convictions from otherdomains of knowledge, and yet also rely on a kind of Quineian Holism, asDworkin did in his former reply to Fish.

To see this point more clearly, let me contrast my construal of Dworkin withthat of Simmonds (1987: 472). Simmonds argues that the constructive modelleads to infinite regress. Take, for instance, the interpretation of legal practice. Itmust, according to the model, be based on the best conception of justice capableof accounting for the practice. But justice, according to Dworkin, is itself an inter-pretative notion, and the interpretation of justice must also appeal in turn to some,more basic level of reflection, on ‘nonpolitical ideas, like human nature or thetheory of the self’ (Dworkin 1986: 424). But, Simmonds argues, we have no reasonto stop at this level. Surely any theory of the self must also be an interpretation.Hence, according to the constructive model, an even more fundamental level ofevaluation must be appealed to so as to satisfy the requirement of soundness, andso on, ad infinitum.

I believe it should be clear by now what Dworkin’s answer would be, given thatmy reading of him is correct: Simmonds wrongly attributes a linear structure toDworkin’s theory, as if each realm of reflection were justified by another, morebasic one, until we must either admit to an infinite regress or decide to stop arbit-rarily at one of these levels. But in fact, the theory is circular; the relation it postu-lates between different realms of knowledge (for instance, law, justice, self) is not areductive one but rather a reflective equilibrium, that is, a relation of coherence.Thus, for instance, we can ‘stop’ non-arbitrarily at the level of a theory of self, sincesoundness of interpretation can be provided at this level by fit with other aspects ofour knowledge, including for example, justice. But again, it is important to realizethat this circularity is vindicated by the complexity thesis and the holism presumedby Dworkin. Within such a holistic context, however, the distinction betweenexternal and internal skepticism becomes very questionable. If you subscribe toQuineian holism, no domain of knowledge is internal; and then you cannot claimthat external skepticism is irrelevant or uninteresting.20

20 It is interesting that between these two answers to Fish, in Law’s Empire Dworkin emphasizes thesecond. The first rejoinder, relying on a holistic/coherence theory of knowledge, is largely ignored inthe book. The question of whether Dworkin saw that these two replies are mutually exclusive is one Icannot answer.


4. THE CONCEPT OF FIT ONCE AGAIN

To sum up so far, we have been looking for available constraints on interpretation.Fish’s argument boils down to the claim that there are none, since the identity ofthe object of interpretation is totally dependent upon the particular interpreta-tions offered, that is, upon the dimension of soundness. In other words, the con-cept of fit, according to Fish, is basically vacuous; no interpretation can fit better,or worse, with the text it purports to interpret since there is no text independentlyof the particular interpretations imposed upon it. As we have seen, Dworkin’smain reply to this skeptical argument is to maintain the structure of the theory, butinsist that it contains sufficient constraints as it is. Even if the identity of the text isinterpretation-dependent, Dworkin maintains, the conclusion that there is avicious circularity here does not necessarily follow.

In order to have a better sense of this reply, it may be useful to look the criticpresented by Simmonds (1987: 478–80), which basically runs as follows:

1. Our convictions about fit, at least when it operates as a threshold require-ment, must be independent of the substantive value judgments constituting theelement of soundness, otherwise there would be no way of distinguishing inter-pretation from invention.

2. How do we know how much fit would suffice in each particular field? Themost plausible answer seems to be that this is determined by the extent to whichwe think it matters to distinguish interpretation from invention in that particularrealm. For instance, consider the difference in this respect between a judge and alegal historian referring to the relevant legal history, each for his or her particularinstitutional purposes.

3. Now consider a theory of adjudication. Why does it matter for a judge tointerpret rather than invent the legal history of his country? Dworkin’s onlyanswer rests on the concept of integrity. Law as integrity explains just this; why itis a judge’s role and duty to interpret rather than invent.‘There is just one small problem,’ Simmonds says, ‘law as integrity is also the sub-stantive interpretation of legal practices that is being offered. Dworkin thereforeviolates his own injunction that the criteria of fit must be independent of the substantive criteria’ (1987: 479).

Apparently, either something is wrong with the argument, or something iswrong with Dworkin’s theory of interpretation. Let us take a closer look at the firstpremise. Can Dworkin defend his theory by denying it? Can he claim that no dam-age results from allowing our convictions about fit to depend on the evaluativejudgments constituting the dimension of soundness? We have already seen thatDworkin endorses a similar strategy in his reply to Fish. Now, however, we face adifficulty. The plausibility of the reply to Fish was grounded on the complexitythesis; but this thesis will be placed under serious doubt if the first premise ofSimmonds’s argument is denied. To reiterate, the charge of circularity in themutual dependence of identity and soundness was evaded through the assump-


tion that the dimension of fit is sufficiently complex. But in admitting that fit toodepends on soundness, that is, on the selfsame values meant to vindicate the giveninterpretation, we leave very little room for complexity. And as we have alreadyseen, Dworkin himself concedes that a coherence-based epistemology is renderedvery dubious without the presence of complexity.

One must take caution at this point; value dependence per se does not necessar-ily lead to simplicity. Consider science for instance: suppose it is agreed that scientific inquiry is basically motivated by the idea of prediction. Now applySimmonds’s argument to this model, on the assumption that scientific inquiry issimilar to interpretation in the relevant respects. We would soon end up with thesame conclusion about fit. When asked, ‘Why does it matter that a scientist inter-pret rather than invent?’ we would have to reply that it matters as long as, and tothe extent that, prediction is taken to be the scientist’s aim. The general justifyingvalue determines the level of fit in this case too. However, this does not underminethe concept of fit in scientific theories; fit can be a significant constraint in the caseof science because the complexity thesis holds, not because fit is independent ofjustifying values.

This will not rescue Dworkin’s theory of interpretation though. To see why, con-sider the possible criteria of complexity in further detail. First, as I have already indi-cated, the idea of complexity must embrace a quantitative criterion. A theory whichaccounts for very few of our beliefs and shows them to be coherent would hardlyever rise above triviality. But the concept of complexity must also embrace a quali-tative criterion. A theory is warranted in relying on the complexity thesis if itaccounts for beliefs which (at least prima facie) are different in kind or source. Thisis a crucial point; consider what the concept of fit involves in a physical theory. Itembraces notions such as sense datum, prediction, logic, mathematics, laws or reg-ularities, probabilities, and so forth. At least some of the beliefs embodied in thesedomains differ in kind or origin, and even belong to very different realms of know-ledge. This is why the idea of complexity can play a significant role in such a theory.

Does Dworkin’s interpretative theory of law meet these criteria? Hardly, sinceour convictions with regard to both identity and fit so clearly depend on the sub-stantive justification. The whole idea of ‘checks and balances’ becomes suspectwhen it turns out that everything emerges from the same evaluative criterion, thatis, the value of coherence. In other words, it is not value dependence, per se, whichundermines the idea of complexity in Dworkin’s legal theory, but the fact that allthe elements of interpretation, epistemic as well as evaluative, seem to depend onbasically one heuristic value. Coherence is just doing too much work here, andwithout much help. Perhaps a coherence-based epistemology makes sense when itis accompanied by holism and applied across the board. But it seems thatDworkin’s attitude to holism is rather hesitant, at best. He relies on it in one of hisreplies to Fish, but actually denies it in the other reply. And as Simmonds’ argu-ment seems to indicate, holism does not quite fit with other aspects of Dworkin’stheory of interpretation. But then, without it, the epistemological foundations ofthis theory remain in doubt.

The Concept of Fit Once Again 63

Let me conclude with a diagnostic observation. The kind of coherence episte-mology that Dworkin relies upon in his reply to the brand of skepticism advocatedby Stanley Fish very much looks like the case of using a cannon to kill a fly. Fish’sargument is based on a rather naïve skepticism about meaning which could havebeen confronted, and dismissed, much more directly. Fish just assumes, withoutmuch argument (that is, unless anecdotes count as arguments) that a text canmean anything we just want it to mean. So for Fish, semantics is just a happy coin-cidence; it is a mystery how people actually manage to communicate in a naturallanguage. People cannot really know the meaning of the expressions they usebecause there is nothing to know there. If we manage to communicate, it is onlybecause social pressure and shared convictions create a convergence of mutuallyshared interpretations. This is hardly a serious theory of meaning. From the fact,and I’m willing to assume that it is a fact, that any interpretation, if only ingeniousenough, can turn just about any expression on its head, it simply does not followthat understanding the meaning of an expression is an instance of a correct inter-pretation. As we have seen in Chapter 2, interpretation is an exception to the stan-dard understating of language and communication, and parasitic on it. So here’sDworkin’s problem, I believe: instead of confronting Fish head on, showing thathe relies on a completely misguided conception of meaning, Dworkin sought toconfront Fish on his own ground, trying to show that even if meaning is entirelyinterpretation dependent, Fish’s skepticism about interpretation does not follow.The problem is that on the basis of Fish’s skepticism about semantics, the skepti-cal conclusions about interpretation do follow. The problem lies in the assump-tions, not in the argument built on them. So why not challenge the assumptions?Perhaps because Dworkin felt that his own ‘semantic sting’ argument is just asskeptical about meaning as Fish’s argument? Possibly. The more important rea-son, however, is the one I have already mentioned: it resides in Dworkin’sjurisprudence. If legal texts can have a meaning that is not entirely dependent ona process of interpretation, then it is at least sometimes the case that the law cansimply be understood, and applied, without the mediation of interpretation. Andif that is the case, then the argument from interpretation against legal positivismcollapses. It is no longer the case that every conclusion about what the law is,depends on evaluative considerations about what it ought to be.


5

Semantics, Realism, and Natural Law

THE VIEW THIS chapter will scrutinize is opposed to Dworkin’s, butmore so in the reasoning offered to support it than in its final conclusions.First, unlike Dworkin (or myself, for that matter), adherents to this legal

theory advocate a semantic approach to jurisprudence. They explicitly affirm justwhat Dworkin’s interpretative approach strives to deny, namely, that legal theoryis, in essence, a theory about the meaning of the concept-word ‘law’. Second, thistheory espouses semantic realism, thus linking an account of the meaning of ‘law’with a natural law doctrine. The following three theses should provide a roughsummary of the theory I have in mind:

1. The appropriate account of the concept of law is a semantic analysis of what ‘law’means (and, perhaps, of the meanings of other, related, concepts characteristic of legallanguage).2. Such a semantic analysis of ‘law’ would show that the term refers to a real or naturalkind of entity whose essence and constitution do not consist of social conventions.3. Hence, discovery of the real essence of law renders anything like legal positivism false,and a version of natural law true.

The present chapter sets out to criticize this view, which is, in substance, tanta-mount to Michael Moore’s legal theory, though probably divergent from it in cer-tain details.1 I shall refer to it as ‘Semantic Natural Law’, because my primaryconcern is with a certain type of reasoning which has attracted several legalphilosophers, rather than with the details of any particular theory. I shall beginwith an outline of what realism in semantics means, and how a realist account ofthe meaning of ‘law’ can support a doctrine of natural law. But the main portionof this chapter will strive to show that the attempt to analyze the concept of law onthe basis of semantic realism is one which is bound to fail. Later on, in Chapter 7,I will elaborate on a possibly more modest version of semantic natural law, whichemploys semantic realism in statutory interpretation.

1 See particularly his ‘Semantics of Judging’ (Moore 1981), ‘A Natural Law Theory of Interpretation’(1985), and ‘The Interpretive Turn in Modern Theory: A Turn for the Worse?’ (1989a). See also Hurd’s‘Sovereignty in Silence’ (1990), and Kress’s critique of Dworkin (1987).

1. THE MEANING OF ‘REALISM’ AND THE MEANING OF ‘LAW’

Realism is seen as a position on a metaphysical issue, a view on the way ourthoughts and language relate to the world. Dummett captures this intuition in thefollowing formulation:

The primary tenet of realism, as applied to some given class of statements, is that eachstatement in the class is determined as true or not true, independently of our knowledge,by some objective reality whose existence and constitution is, again, independent of ourknowledge. (1981: 434)

The gist of this formulation is a non-epistemic notion of truth: a realist, above allelse, must maintain a clear distinction between the truth of a statement2 and therecognition of its truth. A realist must maintain, with respect to a certain class ofstatements, that there is a determinant reality rendering the statements in thatclass either true or not true, independently of whether we can recognize or confirmthis.3 In other words, realism regarding a given realm of knowledge entails the pos-sibility of verification-transcendent truths within that realm. But, as Dummettemphasizes, this formulation also bears upon the theory of meaning appropriateto the relevant class of statements, because ‘of the intimate connection between thenotions of truth and meaning’ (1981: 434).

Most importantly, realism entails the principle of bivalence, which states thatevery statement is determinately either true or false (where ‘false’ is the classicalnegation operator, equivalent to ‘not true’). This requires several clarifications,however. To begin with, there is the question of truth-value gaps. ConsiderStrawson’s analysis of statements, given utterances of which contain a singularterm with no reference, as in Russell’s classical example, ‘The king of France isbald.’ Contrary to Russell, Strawson (1971: 1–28) argues that specific utterances ofsuch statements (an utterance of the above in 1990, for example) are devoid oftruth-value. Thus, admitting truth-value gaps may not seem inconsistent withrealism. According to Dummett, however, ‘even the belief in truth-value gaps dueto failure of reference for singular terms represents a repudiation of realism in therelevant aspect: it is opposed to realism concerning non-existent objects, as main-tained explicitly by Meinong’ (1981: 438). An alternative strategy for coping withthis type of truth-value gaps would be to maintain the following: for a realist todeny that the principle of bivalence holds with respect to a subclass of statementswithin the class he is a realist about, he would have to maintain that certain con-ditions for a statement to be correctly asserted must have failed to obtain in that

2 Following Dummett, I will use the terms ‘statement’ and ‘proposition’ interchangeably. 3 Note that one need not hold a realist (or anti-realist) position tout court; it makes perfect sense to

hold different positions with respect to different realms or classes of statement. For instance, one canmaintain realism with respect to statements about the physical world, and deny realism in mathemat-ics or morality etc. On the other hand, it is questionable whether this formulation of realism is capableof capturing the nominalist-realist debates concerning universals (see Dummett (1981: 437), and cf(1978: preface)). In any case the ontological status of universals is quite irrelevant to our concerns.

66 Semantics, Realism, and Natural Law

subclass (ibid). The complex notion of correct assertability cannot be articulatedwithin the bounds of the present discussion. Suffice it to say that examples of fail-ure to satisfy the conditions of correct assertability would typically involve vague-ness, equivocal statements, and failure of reference for singular terms. In suchcases the realist adhering to this strategy would hold that the linguistic expressionsin question were not genuine statements, from a logical point of view.4

Morality might be thought to be a case in which realists need not subscribe tothe principle of bivalence. According to Moore:

John Finnis, for example, is a realist about moral entities and qualities yet believes thatwe can ‘run out’ of moral reality. Finnis accordingly rejects the principles of bivalenceand stability for moral assertions; for to ‘run out’ of moral reality is to admit that thereare sentences about morality that are neither true nor false. (1989a: 879)

This is a mistake, however, since the moral gaps to which Moore is referring hereare not truth-value gaps. For a realist with respect to moral statements, gaps con-sist in the fact that certain competing moral claims may turn out to be incom-mensurable, in the sense that one might not have any further moral grounds onwhich to adjudicate between them. But this is still consistent with the principle ofbivalence. Suppose that in a particular situation both ‘A ought to do x’ and ‘Aought to do y ’ are true statements. Suppose, further, that it is impossible for A todo both x and y, and that no further moral grounds are available for decidingbetween the two options. Now, one might be inclined to say that in such cases thestatement ‘A ought to prefer x over y’ is neither true nor false. This would be a mis-take, however, since the statement is simply false, and its negation true: ‘It is falsethat {A ought to prefer x over y}. In short, moral realism which admits of gaps isconsistent with the principle of bivalence, as the latter demands that every state-ment expressing a moral prescription be determinately either true or false, not thatevery possible practical choice, all things considered, be either morally right orwrong. The fact that there are all things considered judgments on practical dilem-mas which are underdetermined by moral reasons does not negate the applicabil-ity of bivalence to the realm of moral statements.

Two further clarifications regarding realism are in place here. First, it is import-ant to realize that the relation between realism and the principle of bivalence is nota symmetrical one. While the former entails the latter, the opposite is not the case.The fact that each statement in a certain class is determinately either true or falsedoes not entail that it is necessarily rendered true or false by an objective reality whose essence and constitution are independent of our knowledge.5

The second point, which bears more relevance to our topic, concerns the relationbetween realism and reductionism. It is usually thought that a full reductionist

4 Vagueness is actually a rather special case. The epistemic theories of vagueness maintain that bivalence holds with respect to borderline cases as well; most theories about vagueness deny this, but itis widely acknowledged that there is a serious difficulty in any attempt to reconcile vagueness withprepositional logic. See Williamson (1994).

5 For example, one could easily construct an artificial language game, in which the principle of biva-lence would hold, while one would hardly need to be a realist about such a game.

The Meaning of ‘Realism’ and the Meaning of ‘Law’ 67

thesis between two classes of statement entails an anti-realist position with respectto the reduced class. Intuitively, the idea is clear enough: when a given class of state-ments is fully reducible to another, this reductive relation would seem to mean thatstatements apparently about things of one kind are really about things of some otherkind. Hence, the reduced class does not really exist, as it were. Now, suppose thatsuch a reductive relation obtains between two classes of statements, A and B, and,suppose further, that one can hold a realist position about B. If each and every state-ment in A is fully translatable to a statement in B, and if one is a realist about B, thenone would seem, mutatis mutandis, to be a realist about A. In other words, main-taining a realist position about A, only requires a full translation of each and everystatement in A to a statement in B, a requirement which is met by the reductive relation (assuming that it is complete). Dummett believes this precisely to be thecase with central-state materialism, for example, which maintains that each andevery statement about the mental is fully reducible to statements about the centralnervous system. According to Dummett, ‘far from calling realism concerning psychological statements in question [such a reductive thesis] tends to reinforce it,because of the plausibility of the principle of bivalence for statements about the central nervous system’ (1981: 448).

Things are not quite this simple, however. Central-state materialism does callinto question realism concerning psychological statements in at least one, ratherobvious, sense: it is opposed to what might be termed full-blooded realism con-cerning psychological statements. Such a full-blooded realism asserts of the men-tal what central-state materialism denies, namely, that there is a mental realitywhich renders either true or false each and every psychological statement. It wouldhence be much more accurate to draw a distinction between two kinds of realism,as Dummett suggests. He has called these naive and sophisticated realism. Central-state materialism is only an anti-realist position on the naive version of realism;according to ‘sophisticated realism’ it can count as a realist position about psy-chological statements, subject to being a realist position about the central-nervoussystem (ibid).6

It is important to realize, however, that in most familiar contexts it is the naiveversion of realism which is debated, as the example of central-state materialismitself shows. This is not merely a matter of philosophical tradition. It is a pre-requisite of sophisticated realism that reduction be complete, yet such full reduc-tionist doctrines are not easily come by. Nevertheless the distinction itself isimportant, as will shortly become evident.

Having said as much about the minimal implications of realism, let us pausehere to see what bearing such an account might have upon the nature of law. To

6 A word of caution about Dummett’s terminology: Naïve realism is not a new term; it is tradition-ally associated with the eighteenth-century distinction between primary and secondary qualities, naïverealism being the thesis that secondary qualities, such as color for example, do really exist in the world,as we see them. Although this version of naïve realism fits Dummett’s distinction quite well, it shouldbe clear that contemporary debates over realism are not confined to this eighteenth-century (indeednaïve) controversy. Bearing this clarification in mind, I shall continue to use Dummett’s terminology.


begin with, we need an interpretation of the meaning of ‘law’ which would enableus to speak of the truth-values of statements. This should not be too difficult. Wecan stipulate a class of statements, let us call it LP, which consists of all the state-ments about what the law requires (or permits, authorizes etc) in a given legal sys-tem. Thus, LP in a given legal system, Si, would be comprised of all the statementsof the form: ‘According to the law in Si, A ought to do x’, or of any similar form.7

Note that there is no need to claim that LP is semantically equivalent to themeaning of ‘law’ in any standard use of the latter. A realist would merely have toshow that there exists a possible interpretation of ‘law’ enabling one to speak of theextension (or reference) of ‘law’ in terms of a determinable class of statements.This is what LP is meant to signify. Thus realism as applied to law would entail thateach and every statement in LP is rendered either true or false by some objectivereality whose existence and constitution are independent of our knowledge. Hencealso, each and every statement in LP must be presumed to be determinately eithertrue or false.

Now it is fairly obvious that such a realist account of the meaning of ‘law’ isincompatible with the main tenets of legal positivism, at least as maintained byHart, Kelsen, and Raz. As I have already mentioned in Chapter 1, contemporarylegal positivism entails an anti-realist doctrine on the meaning of ‘law’. The reasonfor this is as follows: one of the main tenets shared by legal positivists is the thesisthat law is essentially a matter of social conventions. Whether one prefers Hart’sformulation of the Rule of Recognition or Raz’s formulation of the sources thesis,the result remains the same; the truths of legal propositions cannot be conceivedof independently of the conditions for the recognition of their truths. The con-ventionalism espoused by legal positivism, and realism about the meaning of ‘law’are directly opposed.

It is also quite easy to see how realism concerning the meaning of ‘law’ would,if true, support a natural law doctrine. If there were an objective reality renderinglegal propositions determinately either true or false, then it would make sense toclaim that the truth of statements in LP could be discovered or revealed, as one dis-covers a law of nature. I am by no means claiming that semantic realism must bemaintained by anti-positivism, as such, or by any natural law doctrine. (In fact, wehave already seen in detail, that Dworkin, for one, rejects realism in favor of acoherence conception of knowledge and morality and I doubt that Finnis sub-scribes to anything like semantic realism about the law.) But again, it would surelybe easier to maintain a classical natural law doctrine if the plausibility of realismabout LP could be substantiated.

So let us now turn to the question of whether or not it makes sense to hold arealist position with respect to the meaning of ‘law’. Let me begin by askingwhether it makes sense to claim that each and every statement in LP is determin-ately either true or false, that is, whether the principle of bivalence is applicable to

7 The formulations would vary according to the kind of legal rule in question: if the rule does notimpose an obligation, but, for instance, confers power, the formulation would vary accordingly.

The Meaning of ‘Realism’ and the Meaning of ‘Law’ 69

law. In the first place, we should note that for a realist with respect to legal propo-sitions, and especially one like Moore who wishes to maintain a natural law theory,the first step would be to advocate a realist position with respect to the class ofmoral statements as well. This, due to the fact that legal propositions refer to moralconsiderations, often doing so explicitly and, perhaps even more often, implicitly.We should thus be willing to admit, at least for the sake of the argument, the plaus-ibility of realism in morality.8

However, even from the perspective of natural law theories, we cannot acceptthat realism about morality would settle the issue over realism in law. The reasonis quite straightforward: numerous legal issues are morally neutral (at least withina certain range), or morally insignificant. A prominent example is the case wherethe law operates as a coordinating factor. In such cases it may be of importance(morally or otherwise) to have an established decision, while it is (morally orotherwise) insignificant what decision is eventually taken (that is, within a certainrange of options). Hence, to establish realism with respect to law, a realist wouldhave to show that the principle of bivalence holds with respect to statements aboutthe law, even when the case is not determinable on moral grounds.

At the same time the realist would have to disallow any contradiction betweenlaw and morality. Suppose it is held to be true that according to morality, ‘A oughtto do x (in a given set of circumstances)’. Can a realist about law then admit to thetruth of the statement ‘according to the law A ought to do not-x (in the same setof circumstances)’? Surely not. Maintaining the existence of a determinate realitywhich renders either true or false every statement in LP, as within the realm ofmorality, means the disallowance of any possibility of contradiction between thesetwo realms; reality does not admit of logical contradictions.

Both of these theses, however, though necessarily required of the realist, involveserious, not to say devastating, difficulties. The latter makes it obvious that the typeof natural law theory entailed by the ‘semantic natural law’ doctrine is such astrong one as to make it doubtful whether anyone actually subscribes to it. Itwould mean taking Aquinas’s lex iniusta non est lex much more seriously than pro-ponents of modern versions of natural law doctrine could wish. Furthermore,even if this difficulty were ignored, a similar, equally serious one would stillemerge. If the principle of bivalence is held to apply to law, it follows that, at thevery least, the law cannot impose a set of inconsistent demands. But this is simplyfalse. Legal systems often comprise morally, and even logically, inconsistent prescriptions.9

But suppose I am wrong here, and that one does want to take a full-blooded nat-ural law doctrine seriously. How would one cope with the first difficulty, namely,those legal issues which are not determinable on moral grounds? How is the principle of bivalence to be applied to such cases? Suppose, for example, that thepossible applications of a legal rule are compatible with several conflicting inter-

8 Moore (1982) has argued at length for a realist position in morality.9 I have elaborated on this in ‘The Rule of Law and Its Limits’ (Marmor, 2004: 27–32).


pretations, none of which is morally (or rationally) significant. Can we say thateach of the options is determinately either true or false? What would enable us todo so? One natural suggestion might be a reductionist thesis about the meaning oflegal propositions. As explained above, a full reductionist thesis with respect to agiven class of statements is indeed compatible with a sophisticated version of real-ism. Thus, suppose one holds the view that a legal proposition is meaningful if andonly if it can be fully reduced to a set of propositions about past events. In otherwords, any proposition of the form x is the law in S, at time t, would mean that ‘atsome time prior to t, it has been authoritatively decided in S, that x’—which is,plausibly, determinately either true or false. For someone like Moore, though,there is just one problem in conceding this proposal. It is, embarrassingly, a legalpositivist thesis.

Now I am by no means claiming that contemporary legal positivism is a realistdoctrine, even on a sophisticated version of realism.10 On the contrary, as shownin Chapter 3, the possibility of full reductionism has been criticized and con-sequently jettisoned by positivists such as Hart, Kelsen, and Raz. The only conclu-sion I am indicating is that unless such a full-blooded reduction is presumed, it ishard to see how all statements about the law could be subject to the principle ofbivalence, and hence, how a realistic thesis could be held with regard to the legaldomain.

2. PUTNAM’S THEORY OF ‘NATURAL KINDS’ AND THE CONCEPT OF LAW

Despite its centrality to contemporary philosophy of language, Dummett’s for-mulation of realism, which concentrates on the notion of ‘truth’ (and sentencemeaning), is not popular with those legal philosophers who find semantic naturallaw appealing. If my arguments in the previous section are correct, then the reasons for this should be clear enough. Instead, those who subscribe to semanticnatural law tend to draw their conclusions from Putnam’s theory of reference,which concentrates on word meaning. Their reasons will become apparent oncewe take a look at Putnam’s theory of natural-kind predicates. A brief summary ofPutnam’s main theses will have to suffice here, though it falls far short of doingjustice to the richness and subtlety of his theory.11

10 Perhaps Austin is the only legal positivist one can think of whose views entail something like asophisticated realism. According to a possible (though not necessarily accurate) interpretation ofAustin, he maintained that all statements about the law are fully reducible to statements about pastevents, namely, about the commands of the sovereign. To the extent that one can be a realist about pastevents (of the pertinent kind), Austin’s reductionist account would turn out to be sophisticated—though not naïve—realism about the law. But of course, this is not the kind of realism about law thatsemantic natural lawyers have in mind. It is the naïve version of realism which is presently beingdebated; semantic natural lawyers wish to assert that which Austin strove to deny, that there is an objec-tive legal reality which renders determinately either true or false each and every statement about the law.

11 The main source of the following presentation is ‘The Meaning of “Meaning”’, Putnam (1975:215–71).

Putnam’s Theory of ‘Natural Kinds’ and the Concept of Law 71

Putnam’s central attempt aims at establishing externalism with respect to theindividuation of linguistic contents. That is, an ‘internalist’ would hold the fol-lowing assumptions which, Putnam claims, cannot be satisfied jointly:

1. To know the meaning of a term is to be in a certain psychological state.2. No psychological state presupposes the existence of any entity other than the subjectto whom that state is ascribed.3. The meaning of a term determines its extension (or reference).

To show that meaning (that is, as characterized above) does not determine refer-ence, Putnam employs the now famous example of Twin Earth. Suppose thatEarth and an imaginary Twin Earth differ only in the chemical composition of thesubstance called ‘water’ in both worlds. On Twin Earth it is composed of XYZinstead of H2O, although it is perceptually indistinguishable from H2O. Prior tothe 1750 discovery of the chemical composition of water on Earth, people on bothEarth and on Twin Earth could have shared the exact same psychological statewhen referring to water, despite the fact of referring to different substances.Identical mental states, then, need not indicate identical extensions. Furthermore,once such a discrepancy in the extension is revealed, we would say that XYZ onTwin Earth was mistakenly called ‘water’, not that the meaning of ‘water’ hadchanged. The example is thus taken to demonstrate how two speakers can be inexactly the same psychological state, while the extensions of the term associatedwith this state nonetheless differ in their respective idiolects.

Putnam’s explanation for this possibility is that we use natural-kind words (andmany other nouns) of a type which he calls indexical, to designate, ‘rigidly’,12

specific kinds of entities, whatever their real nature may eventually turn out to be.This position is often called externalism, since it admits that reality—the actualnature of things—forms a part of meaning.

Now, to account for the fact that people can use indexical words despite theirfrequent inability to specify the precise extension of these words, Putnam incor-porates a doctrine which he terms the division of linguistic labor: people are ableto use words like ‘gold’ and ‘elm’ despite their inability to identify gold or elm withcertainty, since they can rely on a subclass of speakers, that is, experts, to reachsuch identifications. The meaning of an indexical word should not, however, beequated with any particular account of its reference given by experts in a specificfield. The latter should always be regarded as only the best approximation of thereal reference at any given time (Putnam 1975: 227–29).

Finally, Putnam acknowledges that many predicates are not indexicals. Certainwords (which Putnam calls ‘one-criterion words’) are synonymous with a descrip-tion in terms of necessary and sufficient conditions. Over the years, Putnam hasshifted the position of the line between the two. In the ‘Meaning of “Meaning” ’,for instance, he holds than an artifact, such as a ‘pencil’ is ‘an indexical as “water”or “gold”’ (1975: 243). Later, though, he seems to have conceded to the contrary(1983: 74–75).

12 The term is of course Kripke’s (1972), the idea being that indexical predicates are rigid designators.


Be this as it may, we are now in a position to see why Putnam’s account ofindexical predicates proves so appealing to legal philosophers.13 Showing that‘law’ is an indexical concept, such as ‘water’ or ‘gold’, would entail conclusionswhich are highly favorable to the semantic natural law doctrine. To see this, let usconcentrate on the point at which Putnam’s account of indexical predicates con-verges with realism.

One of the most important implications of Putnam’s theory is the following: forany indexical word, it should be possible for a whole community of speakers tomisidentify its extension. As the extension of a term is just what the term is true of, thepossibility of misidentification rules out an anti-realist position which, as we havealready seen, denies that truth and its recognition are completely separate notions.

Consider one of Putman’s examples. Suppose that in Archimedes’ time, certainpieces of metal, X, were indistinguishable from gold, while today with the aid ofmodern techniques, we could easily distinguish between the two. Now, assumingthe indexicality of ‘gold’, Putnam is bound to say that although the Greeks ofArchimedes’ time could not distinguish gold from X, X did not lie within theextension of ‘gold’ even then (Putnam 1975: 235–38). Or, consider again the TwinEarth example. For Putnam to be able to say that XYZ on Twin Earth is not water(although Twin Earthians may mistakenly have called it ‘water’), he must presumethat the extension of ‘water’ can be misidentified by Earthians as well (as indeed itcould easily have been prior to 1750). The alternative view would be an anti-realistone, namely, that the ability to recognize the extension of words like ‘water’ and‘gold’ is a constituent of their very meaning, ruling out the possibility of extensivemisidentification, that is, on the part of a whole community of speakers.14

Thus, showing the concept of ‘law’ to be indexical would constitute a repudia-tion of the brand of anti-realism entailed by legal positivism. Surely, no conven-tional understanding of law could allow for the possibility of an extensivemisidentification of the law. Furthermore, establishing the indexicality of ‘law’would give meaning to the idea that there is more to discover about the ‘realnature’ of law, as it were, than that which is perspicuous in the rules or conven-tions themselves, and the practices of applying them. In other words, the indexi-cality of ‘law’ would support the age-old natural law doctrine, that the law can bediscovered even where there are no rules or conventions which settle the issue.

We are thus faced with the question of whether or not it makes any sense at allto see ‘law’ as an indexical concept. Recall that for ‘law’ to be an indexical predi-cate, it must be possible for a whole community of speakers—including experts—to misidentify its extension. Is this possible? Is it possible for a whole legalcommunity to make a mistake about the identification of their laws?

13 See Moore (1981: 204). See also Kress (1987: 854–60), who advances a Putnamian account of themeaning of ‘law’ as a rejoinder to Dworkin’s ‘semantic sting’ argument.

14 I am not claiming that an anti-realist view rules out the possibility of any misidentification.Clearly, even an anti-realist must admit that certain types of misidentification are possible, eg when aword is used incorrectly. But what the anti-realist cannot admit is the possibility of extensivemisidentification, namely, when a whole community of speakers is concerned.

Putnam’s Theory of ‘Natural Kinds’ and the Concept of Law 73

Let us construct an example analogous to Putnam’s story of the misident-ification of ‘gold’. Take a certain legal system, say Roman law in the first centuryAD; let us presume that a certain norm, P, was recognized by the Roman lawyers ofthe time as part and parcel of their legal system. Does it make sense to say that thiscommunity of lawyers has made a mistake, since according to the ‘real nature’ oflaw, P did not lie within the extension of their legal system even then, despite theirinability to recognize this?

I take it that the negative answer to this question is self-evident; such an exten-sive misidentification in law would seem profoundly mysterious. But the fact thata philosophical doctrine yields mysterious results has rarely convinced philoso-phers to discard it, so perhaps something more should still be said about this issue.

3. REAL LAW?

Realism about the legal domain requires a crucially important premise. It must beassumed that there is a possible distinction between what the law really is, andwhat it is taken to be by any particular group of people. This is a distinction withwhich we are familiar from the moral domain. With the exception of a very crudeversion of relativism, nobody really denies that people can be mistaken about themoral views they hold. So there is, at least at some level, a distinction between themoral views that people actually hold, and those truths about morality which theyought to hold. Without this distinction (which HLA Hart has called ‘positivemorality’ v ‘critical morality’) no realist stance with respect to the moral domainwould make any sense.15 Now, for realism about the law a similar distinction mustbe presumed. The realist must maintain that not everything a community oflawyers believes to be the law really is the law. Law must have a critical aspect, as itwere, which may, or may not, be recognized correctly by the pertinent agents.

At the most abstract level, there are two possible ways of construing this idea ofcritical law: the critical perspective of law can be viewed in either instrumental ornon-instrumental terms. Moore’s functional conception of law is a good exampleof the former. On his account law’s critical normativity consists in its ‘functionalessence’. This functional essence can be discerned by asking: ‘What are the distinctgoals that law and legal systems serve?’ (Moore 1989a: 887). Not surprisingly,Moore concedes that law’s purposes are basically moral and political: ‘that lawserves the goals of liberty . . . of equality . . . of substantive fairness . . . of proced-ural fairness . . . of utility . . . etc’ (ibid). Thus, critical law, according to Moore, isthat which will ‘maximally satisfy the rightly ordered set of some such values’ (ibid,emphasis mine).

15 To be sure, the reverse does not hold: it is not the case that if you maintain such a distinctionbetween critical and positive morality you are thus committed to realism about critical morality. As Ihave argued at length elsewhere (Marmor 2001), objectivity about morality does not necessarily entailrealism.


The problem with this instrumental conception of law’s critical aspect is thatinstead of providing a concept of critical law, it simply provides an application ofcritical morality to law. If the criteria of legal truths are seen as given in terms oflaw’s moral and political ends (or functions, if one prefers), then there is no distinction between the critical evaluation of law from a moral as opposed to alegal point of view; law’s ‘functional essence’ turns out to be critical morality indisguise.

Nor would it help to maintain (counterfactually, I would add, as the presump-tion is largely false) that there are certain moral and political ends which are some-how unique to law. Suppose, for example, that there are certain moral ends orfunctions which are unique to the social institution of marriage. Suppose, in otherwords, that the social practice of marital relations serves certain moral functionswhich are unique to this practice. (I know that it is a mystery to some people whatthat moral aspect could be, but I will assume that they are mistaken.) Surely thatdoes not render the practice of marriage anything like a functional kind. It onlymeans that there are certain unique social functions of this practice which we canonly grasp by applying moral criteria and moral judgment to its evaluation. Butthis is something that no legal positivist has ever sought to deny about the law. Itmust be the case that a complete understanding of the various functions of law inour society requires reference to the moral domain and moral evaluations. That isso, simply because many functions of the law are, indeed, moral in purpose orcharacter.16

Thus, a non-instrumental construction of critical law would seem a morepromising attitude. According to this view, suggested by Weinrib (1988), the truthof a legal norm—as opposed to its validity—is independent of the alleged ends itis taken to enhance. Law’s critical aspect, or rather its ‘form’, as Weinrib prefers tocall it, consists in what he calls the ‘immanent rationality’ of law (1988: 955). Bythis latter he means, if I have understood him correctly, that law’s critical evalua-tion is independent of any of its moral or political dimensions.

As Weinrib himself realizes, however, this non-instrumentalist understandingof critical law makes sense only if confined to the structure of legal reasoning.17

This, in turn, leads the non-instrumentalist conception of critical law to a coher-ence theory of truth in law. As Weinrib explains:

16 A note on the revision here: in the first edition I probably gave the impression that I hold the viewthat law does not have any autonomous aspect whatsoever; that it can only be evaluated externally, asit were, from the perspective of other normative-critical domains. This, I realize, is quite inaccurate. Inmy Positive Law and Objective Values (Marmor 2001: ch 1) I argue that constitutive conventions partlycreate their own point or value and thus render the practice they constitute partly, though in a very limited sense, autonomous. None of this affects the argument here, however, since such a view aboutthe nature of law, which draws on the nature of constitutive conventions, is clearly the anti-thesis torealism; it relies on conventionalism as the foundation of legal practice.

17 That is, unless one adopts a Platonist construal of legal form, but I have no idea how to under-stand the contention that legal form should be construed on such a Platonist ontology. Even Plato himself, to the best of my knowledge, did not advance such an extraordinary claim (but perhaps onlybecause he was contemptuous of lawyers). In any case, it is clear enough that Weinrib does not espousesuch an interpretation of legal form.

Real Law? 75

The formalist’s concern is not with whether a given exercise of state power is desirable,either in its own terms or in the terms of the larger ends it serves, but with whether it isintelligible as part of a coherent structure of justification.

The reason coherence functions as the criterion of truth is that legal form is concernedwith immanent intelligibility. Such an intelligibility cannot be validated by anything out-side itself, for then it would no longer be immanent.

Hence, he concludes:

Coherence is the criterion of truth for the formalist understanding of juridical relation-ship. (1988: 973, 972)

But this is not quite clear. To begin with, the term ‘criterion of truth’ is ambigu-ous. Either it means that the truth of legal statements consists in coherence, or elsethat coherence is the only (or primary) indication of truth in law. The formeroption would not do for the purposes of establishing the possibility of realism inlaw. Patently, a coherence conception of truth with respect to a certain class ofstatements, is directly at odds with a realist conception about that class. Hence,even if some notion of critical law can be construed on the basis of a coherenceconception of truth, such a notion of critical law does not admit of realism.

Therefore, we must assume that Weinrib means coherence to be an indicationof truth. That is, we must shift from a coherence theory of truth to something likea coherence theory of knowledge. This, however, would still not do, not even if wepresume the latter to be compatible with a correspondence conception of truth,and hence with realism. As shown in Chapter 4, a coherence theory of knowledgeonly makes sense within the context of a thoroughly holistic epistemology. But onsuch holistic grounds, the critical aspect of law can hardly be characterized asautonomous or immanent rationality; holism and the autonomy of law are noteasily reconcilable.18 Note that Weinrib must confine his construal of the criterionof coherence to the epistemological dimension. Maintaining that coherence was ajustificatory value, along the lines suggested by Dworkin’s concept of law asintegrity, for example, would violate his injunction that formalism is not con-cerned with the moral or political desirability of legal arrangements or institu-tions. Nor would such a claim be compatible with the notion of critical law whichthe realist seeks to substantiate. This, for the very reason due to which Moore’sfunctionalism fails: if the criteria of legal truth are given in terms of moral values,critical law cannot be distinguished from critical morality applied to law.

It might be objected at this point that we still have not reached the root of thematter: why is it the case that certain normative domains, such as morality, can beconceived of as having immanent or autonomous critical aspects, while others,such as law, can only be critically evaluated from the perspective of other norma-tive domains? One is inclined to see the reason in the fact that law, unlike morality,

18 It is not clear that Weinrib himself wants to adopt a realist position with respect to the meaningof ‘law’, hence this is not necessarily a criticism of his article. But the fact that he seems unaware of thedistinction between a coherence theory of truth and a coherence theory of knowledge seriouslyobscures his position.


is a matter of human creation, a product of culture. But this is not wholly satis-factory. It is not clear that a realist with respect to the moral domain, for instance,must deny the possibility that critical morality be at all culturally dependent. Wehave already seen that realism with respect to moral statements is compatible witha view admitting of a certain amount of incommensurability among competingmoral choices. Hence, realism may also allow for a certain degree of cultural diver-gence stemming from incommensurable cultural choices.

On the other hand, there seems to be a rather obvious connection between anti-realism and cultural relativity. It is difficult to see how the reference of conceptswhich are purely cultural products could ever be misidentified by the entire popu-lation of that culture. In fact, one can make a stronger claim: to the extent thatsomething is a purely cultural product, its reference consists in what people take itto be, which renders the possibility of extensive misidentification a logical impos-sibility. This suggests a pertinent distinction between concepts which are the prod-ucts of a culture, and concepts which are cultural-relative only in a partial orderivative sense. Realism, and consequently the Putnamian account of indexicals,makes sense with reference to the latter but not the former.19

The above distinction may be illustrated as follows: imagine yet another TwinEarth whose inhabitants differ from us in two respects: First, Twin Earthians haveno concept of morality or of moral evaluation of behavior; second, Twin Earthianshave no form of legal system whatsoever. In my opinion, the moral realist couldunderstandably claim that at least some kind of moral evaluations were applicableto the behavior of Twin Earthians despite their inability to recognize this. It might,for instance, be morally wrong for a Twin Earthian to torture his fellow TwinEarthian just for the fun of it. However, it would not be illegal. Moreover we canoffer no idea of what would count as illegal conduct on the part of a Twin Earthian.There is no way of evaluating the behavior of Twin Earthians by any legal, asopposed to moral, standards.

Arguably, similar relations obtain between the concepts of art and aesthetics.From the vantage point of the distinction under consideration here, the relationbetween law and morality seems analogous to that between art and aesthetics.Perhaps realism is applicable to the realm of aesthetics. But the realist about aes-thetic statements would have to maintain that aesthetic evaluations are not theproducts of culture (though perhaps partially sensitive to cultural divergence). Onthe other hand, realism about the meaning of ‘art’ seems to be no less implausiblethan realism about the meaning of ‘law’. In the next chapter I shall argue, althoughfrom a different perspective, that artistic genres, like legal institutions, are productsof culture, and hence cannot be misidentified extensively.

19 Putnam sometimes gives the impression that for a concept to be a product of culture, and hencenot accountable on the basis of indexical predicates, it must be possible to provide a definition of thatconcept in terms of necessary and sufficient conditions. See Putnam (1975: 243); Wiggins (1980:90–101). This is a puzzling thesis and I do not see anything that can support it. For many years I haveused to ask my first year law students to define ‘chair’ in terms of a set of necessary and sufficient con-ditions for the applicability of the word, and they invariably failed. Surely this is not because ‘chair’ isan indexical predicate.

Real Law? 77

Be this as it may, I do not wish to assert realism about morality, aesthetics, oranything to be an acceptable view. I do want to suggest, however, that realismabout morality is an understandable position only in so far as it is also maintainedthat morality is not altogether a product of culture (though perhaps partially sen-sitive to cultural divergence). The fact that law is a cultural product par excellencerenders a realist position, and hence a Putnamian account about the meaning of‘law’, incomprehensible.


6

Constructive Identification and Razian Authority

ALEGAL SYSTEM, Dworkin argued repeatedly, comprises not onlysource-based law but also those norms which can be shown to be consis-tent in principle with the bulk of source-based law. I will refer to this basic

idea as the ‘coherence thesis’. Thus, Dworkin’s recent interpretative turn is basic-ally an attempt to re-establish this thesis on novel grounds, namely, on the ideathat law is interpretative throughout. From the outset, however, Dworkin has realized that an interpretative account of law might turn out to be inimical to thecoherence thesis, that is, if interpretation is explicable only on grounds of the com-munication-intention model. This worry is expressed in the following passage:

The idea of interpretation cannot serve as a general account of the nature or truth valueof propositions of law, unless it is cut loose from these associations with speaker’s mean-ing or intention. Otherwise it becomes simply one version of the positivist thesis thatpropositions of law describe decisions taken by people or institutions in the past. (1985:148)

Thus the problem for Dworkin here is very simple: it would be pointless to insiston the thoroughly interpretative nature of law and legal reasoning if interpretationwas nothing else but the attempt to retrieve the author’s, that is, the legislature’s,intentions. The whole point of the interpretative theory Dworkin proposes is toshow how conclusions about what the law is, are partly, but necessarily, deter-mined on the basis of evaluative considerations. If the interpretation of the law istoo closely tied to an author’s intent model of interpretation, then one could speakabout the interpretation of law only in those cases where the alleged law was, infact, the expression of someone’s intention. In any other case, one would have toadmit to the law’s invention or creation. Patently then, Dworkin must deny thatlaw is interpreted on the basis of the communication-intention model. It is a cru-cially important aspect of Dworkin’s theory that a norm can be a legal norm evenwhen it has never been created, or in fact previously contemplated, as such. Thus,the communication model of interpretation and the coherence thesis are directlyopposed.

It is not the purpose of this chapter to argue for the endorsement of the com-munication model of interpretation in law. I shall try to argue, however, thatintentions do play a crucial role in the identification of legal norms as such and,

moreover, that they do so in a way which is incompatible with Dworkin’s coher-ence thesis. The argument focuses on the distinct roles that intentions play in determining the identification, as opposed to the content, of that which is inter-preted.

1. CONSTRUCTIVE IDENTIFICATION

Legal practice, like art, according to Dworkin, is an interpretative enterprise. Theparticipants in these practices presume that the practice has a value, a point, orsome purpose it is meant to enhance, and the requirements of the practice aretaken to be sensitive to these supposed values. A theoretical account of such a prac-tice is basically a matter of achieving a kind of reflective equilibrium between thepractice as we find it (roughly!) and its best possible justification (Dworkin 1986:90). We have already seen in detail (Chapter 3) how the interpretative nature ofboth practice and theory yield their value dependence. Yet there are two aspects ofthe value dependence of interpretation which ought to be kept separate here. Oneis the thesis that the interpretation of works of art, legal norms, or whatever, ismade possible and intelligible only against the background of a conceptual schemeconstituted by, inter alia, evaluative judgments. In the previous chapters I havetried to show that, important as this insight may be, it cuts no ice with the disputebetween Dworkin and his positivist opponents.

However, the kind of value dependence which might serve to support the coher-ence thesis is a different matter altogether. Here, one must maintain that evaluativeconsiderations are sufficient to determine (at least sometimes) whether something isa legal norm or a work of art, etc. In other words, what must be demonstrated is thevalue dependence of the identification of law (or art) as such, not of its particularinterpretations. I shall henceforth refer to this thesis as the constructive identificationthesis.

One immediate objection might be raised here, namely, that this formulation ofthe constructive identification thesis ignores the dimension of fit. This is not thecase, however, first, because fit itself, as Dworkin admits, is partly value dependent;but mainly because once the threshold of fit is passed, moral considerations can,according to Dworkin, provide sufficient grounds for identifying a given norm asa legal one. And this is the very essence of the idea of constructive identification.In other words, it is definitely not the case that whatever is ‘the best’ is law (or art).Dworkin’s position is, rather, that considerations of what is the best can some-times determine what law is.

The possibility of a constructive identification of the law is diametricallyopposed to two distinct versions of the communication model, not one. Patently,as we have seen, the thesis is irreconcilable with the idea that interpretationamounts to a retrieval of the author’s intentions. But, for the very same reasons, itis also irreconcilable with the idea that something can be identified as a legal norm(or a work of art etc) only if it is presumed to have been created as such. According

80 Constructive Identification and Razian Authority

to the latter option, the author’s intentions are not invoked for purposes of deter-mining what, for instance, a text means, what its content is, so to speak. Yet itsidentification as a text—under a covering concept of a given kind, that is, a type oftexts—relies on the intention to create a text of this kind. These are two separateversions of intentionalism. One could subscribe to the latter without endorsing theformer. A particular text’s identification as a novel, for instance, on the basis of theassumption that it has been created as such, does not entail that its content oughtto be determined by considerations about what its author had in mind.

The main part of this chapter will argue that certain presuppositions aboutintentions play a crucial role in the identification of law, and hence that the coher-ence thesis should be rejected. However, it will be convenient to begin with a dis-cussion of the possibility of applying the thesis of constructive identification to therealm of art. To justify this move I can only appeal to Dworkin’s own work, whichoften relies on the analogy between the interpretative nature of these two enter-prises. I should make it clear from the outset, however, that it is not the nature ofart that interests me here so much, as the kind of considerations capable of supporting or undermining the possibility of constructive identification; art is justan example. But two clarifications are required before we proceed.

In saying that something has been created as such-and-such, it is typicallyassumed that the agent had actually formed an intention with respect to what hehas produced. The relation between action and intention, however, is not alwaysso strong; most of the time people act intentionally without forming any particu-lar intention with respect to the act performed.1 Now perhaps it is sometimes pos-sible to see something as being created as a result of an intentional action in thisweaker sense. Mostly, however, I shall rely on the stronger sense of intention,namely, action performed with the intention of such and such.

Second, and more important, there is a distinction to be drawn between ques-tions of identity and questions of identification, since it is only the latter with whichwe are concerned here. Identity is basically a matter of sameness. The typical formof an identity question would be, ‘Is A the same f as B?’ where f stands for the per-tinent sortal concept (the same what?) (Wiggins 1980: 15). Generally, though notin all cases, identity concerns spatio-temporal continuity: ‘Is A (= the man stand-ing in the corner) the same person as B (= John, my classmate from high school)?’Or, in law: ‘Is the legal system A (= in Zimbabwe) the same as B (= (formerly) inRhodesia)?’

On the other hand, questions of identification are typically of the form: ‘Is A anf ?’ In this case, neither sameness nor continuity are considered, but seeing some-thing, or singling it out, as an f. (It is being neither claimed nor denied that we constantly perceive things as such-and-such; our subject is a type of question, notthe nature of perception.)2

1 See eg Anscombe (1956); Davidson (1980: introd); Hacker (1988).2 Cf Strawson (1979).

Constructive Identification 81

This distinction would be rather trivial and hardly worth mention, were it notclaimed by some philosophers that the latter depends upon the former. It is some-times maintained that one cannot specify the criteria for identifying an X as an f,unless one can specify the criteria for the identity of f.3 The concession that peopleare often able to identify things, under covering concepts for which it is veryunlikely that they could specify criteria of identity (think of modes of behavior,musical timbres etc), sometimes leads such philosophers to far-reaching conclu-sions. For instance, that in this latter case, the identifiables are not real entities.4

Fortunately we can avoid such philosophical complexities, and for two reasons.First, nothing in the following discussion will depend on either admitting or deny-ing any possible conceptual connections between identity and identification.Second, we could not be accused of taking an unwarranted position in such a dispute. The intentionalist identification thesis explored below does not amountto, nor is it meant to be, a specification of the criteria of identification for anythingat all. One can discuss certain conceptual constraints on the identification ofthings under a certain kind of covering concept, without attempting to pursue thefurther task of providing a full account of its criteria of identification (a task which,in many cases, would be rather futile anyway).

There is another reason why the distinction between identity and identificationis worth mentioning here. I will argue in a moment against the plausibility of con-structive identification in art. Yet I readily admit that, in some cases, identity in artcan be value dependent, along the lines of the constructive model. Many works ofart are tokens of a type, and it is sometimes of interest to ask whether two tokensare actually tokens of the same type or not (see Wollheim 1978; 1980). In some ofthese cases, it is plausible to hold that the answer may depend on certain evaluativeconsiderations about the values we ascribe to art, or art of that kind, but this doesnot entail that the identification of works of art, as such, is possibly constructive.

2. CONSTRUCTIVE IDENTIFICATION AND THE OBJECTS OF ART

I shall now try to point out certain considerations which support the implausibil-ity of constructive identification in art. Recall, my claim is that the artist’s inten-tion to create an object as a work of art (or as, for instance, a novel) constitutes anessential element of our conception of what it is for something to be identified asa work of art. Thus, to begin with, for something to be a work of art it must be anartifact. We do not identify trees, or landscapes, or even marvelous sunsets onbright summer evenings, as works of art (except of course, in a figurative form ofspeech, or when attributing the object’s creation to a supernatural entity). In short,

3 If I understand him correctly, Wiggins (1980) seems to hold such a view. This view seems also tohave been presumed by Wollheim in Art and its Objects (1980), but it is not clear in Wollheim (1978).See also Williams (1973: 15–16).

4 This view is elaborated and powerfully criticized by Strawson (1976).


art has to be created. That is, it has to be created by the kind of agents capable offorming intentions, purposes, and the like.5

But of course, not all created objects, that is, artifacts, are works of art; we onlysingle out certain kinds of artifact as works of art. Now the crucial point here isthis: if you maintain the possibility of constructive identification in art, you mustassume that works of art can be identified as such on the basis of certain featuresthey happen to possess, features which contain no reference to any particularintention to create a work of art.6 Let us call such features, whatever their precisenature is taken to be, the ‘aesthetic’ features of the object. (I am not assuming thatthis notion of ‘aesthetics’ captures the ordinary use of this word.) So the problem,in a nutshell, is this: unless we take intentions into account, how can we discrimin-ate between the concept of an aesthetic artifact and the concept of a work of art?

To begin with, it is difficult to imagine why aesthetic features could not apply toother artifacts or, in fact, to natural objects which are not artifacts at all.(Remember that we have excluded those aesthetic features which contain animplicit reference to intentions.) More importantly, we can identify something asa work of art even if it has no aesthetic features whatsoever, often because it is sim-ply bad or unsuccessful, sometimes because it was meant to be so. Consider theideology of certain twentieth-century genres which explicitly deny any such aesthetic purposes or merits.7 It is true that these revolutionary genres often cre-ate new standards of aesthetic appraisal, new tastes as it were. But it would be aserious distortion to describe their identification as art as wholly dependent ontheir success in implementing such new standards of aesthetic appraisal. We oftenidentify them as works of art long before we know whether such a development isfeasible. In short, any attempt to base the criteria for art’s identification on aes-thetic features alone is bound to be very problematic. (For similar reasons, it seemsunhelpful to employ aesthetic functions, as is sometimes suggested.)

And yet, does it not make sense to say, ‘This was not meant to be a work of art,but it is’? It seems to; we understand what has been said. But compare this, forexample, with instances of insincere speech-acts. The fact that in normal circum-stances we presume a speech-act to be sincere (cf Searle 1969: 60) does not entailthat we cannot make sense of deviations from this condition, deviations which areparasitic on what it standardly means to perform a speech-act of a certain kind. Or,to take a similar example, consider the practice of voting. One could hardly bedescribed as voting for such-and-such without forming the relevant intention,namely, the intention to vote for such and such. Yet we can easily imagine devia-tions from this. Suppose someone who is absolutely unfamiliar with the practiceof voting is persuaded to perform the acts considered as a vote for something with-out even knowing what he is doing. Such a person might be said to have votedwithout the requisite intention. But again, the possibility of such an unusual case

5 I actually take it to be particularly instructive that there are no exceptions to this. 6 Such as, for example, creativity, or perhaps ingenuity etc. 7 The examples I have in mind are early Dada, and conceptual art. See Lynton (1980: chs 4 and 10).

Constructive Identification and the Objects of Art 83

is parasitic on our standard understanding of what it means to vote. Similarly, oneneed not deny that in exceptional or unusual circumstances, art could also be cre-ated unintentionally, as it were. Still this seems to have little bearing on what itstandardly means to identify something as a work of art. In other words, the inten-tion to create a work of art is a criterion for its identification as such, but not a log-ically necessary condition. Criteria are, by their nature, defeasible; one can alwaysimagine circumstances in which a given criterion does not hold. But this fact, thatcriteria are defeasible in a way that necessary conditions are not, does not renderthe former irrelevant or useless.8

An objection based on counter-examples may seem in place at this point: froman historical perspective, we seem to have identified as works of art numerousthings which might not have been created as such. To mention a few examples,consider ancient cave paintings, Oceanic art, African art, and perhaps even thingsas close to our culture as medieval icons. Admittedly, transcultural comparisonspose difficult problems in the context of almost any discussion about the conceptof art and its limits. In the present context, however, only one particular claimwould amount to a real counter-example to the thesis suggested here. Suppose onewanted to claim that African warrior-masks were works of art. Nothing in thiscontention would amount to an objection to the intentionalist identification the-sis advocated here, provided it was presumed that the pertinent African culturehad a concept of art sufficiently similar to ours. It is only when we admit (as Ibelieve it would be right to do) that the pertinent African culture had no conceptof art whatsoever (or that if it did, it was too remote from ours to be translated to‘art’ in our language), that identifying a warrior mask as a work of art becomes arelevant counter-example. But in this case, the contention that the warrior-maskis a work of art would be question begging. It would require an explanation ofwhat justifies the mask’s classification as a work of art on the basis of its appear-ance alone. One could justifiably claim that it resembled a work of art in variousrespects, or that it could have been one had it been created as such, but not that itin fact was one.9 In classifying an artifact, then, either it is presumed that the pur-poses in play in its creation are close enough to those we consider artistic, in whichcase it can be said to have been created as a work of art, or the purposes in play arenot taken to be artistic, and hence classifying it as a work of art would amount toa distortion. To be sure, none of this assumes that the concept of art is stable acrosstime; surely the prevalent concept of art in Mediaeval Europe was very differentfrom the concept of art that evolved during the Renaissance and later in the 18thcentury, and so forth. I do want to claim, however, that if the relevant culture inwhich the object had been created did not have any concept of art whatsoever,then it is groundless to say that the object is a work of art.

8 For a more detailed account of the defeasibility of criteria, see Chapter 7, sect 4.9 The fact that these beautiful artifacts, once discovered by European artists, have had an enormous

impact on various modern genres, particularly on primitivism, does not prove the contrary; similarinspiring impact can be attributed to beautiful Tahitian women as well.


Now consider the opposite case: can we say ‘This was meant to be a work of art,but in fact it is not’? Of course it makes perfect sense to say this simply becausepeople can fail in actually realizing the intention which they have had. Often, how-ever, it can also mean something like this: ‘It was meant to be a work of art, but isreally a very bad one’. In general, to be able to say that something is bad art, it mustbe intended as art in the first place. A shopping list is not bad poetry; it is notpoetry at all. Of course, a kind of shopping list can be intended by its author aspoetry, and might then be said to be a piece of poetry, though perhaps a poorone.10

To sum up so far, the thesis that intentions play a conceptual role in theidentification of works of art is required for the following two purposes: it allowsfor discrimination between works of art and other aesthetic artifacts, and for dis-crimination between bad art and non-art.

This much might well be conceded by Dworkin. But, he would argue,identification in art, as in other interpretative enterprises, is basically a matter ofagreement, of the consensus which happens to prevail at the pre-interpretativestage. One can easily envisage a very different conventional setting, in which thecriteria would be quite different. As he puts it in the case of law, it––

cannot flourish as an interpretive enterprise in any community unless there is enoughinitial agreement about what practices are legal practices. . . . We all enter the history ofan interpretive practice at a particular point; the necessary preinterpretive agreement isin that way contingent and local . (1986: 91, my emphasis)

There is a fairly obvious sense in which it is true that the identification of art is—within certain limits— a matter of social consensus. Undoubtedly, in different cul-tures different things are identified as works of art. This means, for example, thatwe will probably be unable to specify universal criteria for the identification ofworks of art; that the criteria are at least partly contingent and culture dependentin a rather strong sense. But only up to a point.

Imagine, for example, a newly discovered culture in which the concept A standsfor the following practice: shiny green stones, of which there is a scarcity, are col-lected by some of the people in this culture and exhibited in a way very similar tothat in which portraits are exhibited in galleries. (One could push the similarityfurther: the culture includes distinguished stone collectors, private and public col-lections of shiny green stones, A experts, and so on.) Now, even if we could see thepoint in all this, there seems to be very little here which would warrant the con-clusion that A amounts to a peculiar concept of art, or involves a peculiar artisticgenre. Shiny green stones are not works of art, we would say. The concept of A issimply too remote from our concept of art to be translated into ‘art’ in our language. Is this only a matter of agreement, of our shared convictions about the

10 Indeed it was characteristic of Dada, at some point, to employ this strategy of turning such banalobjects into works of art, as it were, simply by presenting them as such. Marcel Duchamp’s Fountain,an ordinary urinal, exhibited at a New York gallery in 1917, is a famous example.

Constructive Identification and the Objects of Art 85

practices we identify as art? Perhaps it is, but neither more nor less so than lan-guage is, in general.

Dworkin rightly distinguishes between conventions, properly so called, andshared convictions (1986: 136). It is typical of shared convictions that they canturn out to be wrong or false. The belief in the existence of witches was false, andthe practice of burning them an iniquity. Rules of grammar, however, are neithertrue nor false (and neither right nor wrong). Furthermore, people cannot agree ordisagree on something that makes no sense. It should be relatively easy to envisagethe negation of anything that is purely a matter of shared convictions. Forinstance, it is a widely shared conviction that it is wrong to torture people just forfun. Yet we can make perfect sense of a denial of this view, that is, within our ownlanguage, our own conceptual scheme. This does not seem to be the case, however,with the contention that shiny green stones are not works of art. In short, it is theconcept of art which rules out the possibility of constructive identification ofworks of art, not a contingent and local agreement.

Before we turn to the issue of constructive identification in law, another possi-ble reply should be mentioned. It might be claimed that we got the question wrongfrom the outset. Instead of asking ‘How do we identify something as a work of art?’we should have concentrated on the interpretative nature of art criticism, andasked about the identification of whatever is subject to interpretation in it. Surely,so the argument would continue, objects of art are not interpreted in isolation. Artcriticism would be utterly incomplete if critics ignored the background on whichworks of art are created and understood, in particular, the pertinent genres towhich given works are taken to belong. In other words, one cannot interpret awork of art without having formed a vision of the genre to which the work is takento belong. Now, genres can be identified constructively: one need not presumethat genres must be created as such. It is possible to account for the emergence ofgenres in terms of something like an ‘invisible-hand explanation’; genres seem tomanifest an overall pattern or design which could only have evolved through thesuccessful attempts of a group of artists to realize the pattern or design. But in factthis semblance is often false. The overall pattern may not have been in anyone’smind, so to speak, at any particular point.

All this should be conceded. But the interpretative perspective should notobscure the fact that we can normally, and with no particular difficulties, distin-guish very clearly between works of art and the genres to which they are taken tobelong. The fact that the interpretation of the former typically involves a certainvision of the latter is not evidence to the contrary. One never confuses genres withworks of art, simply because genres are not the kind of things which can be worksof art (and vice versa, of course).


3. RAZIAN AUTHORITY AND CONSTRUCTIVE IDENTIFICATION IN LAW

I have tried to argue, thus far, that the identification of something as a work of artmust typically rest on, inter alia, the presumption that it was intended to be a workof art; the object has to have been created as such. This rules out the possibility ofconstructive identification of works of art. But law, of course, may be quite differ-ent. The example of art is instructive, nevertheless, at least in one limited respect:it has shown that the value dependence of the interpretation of works of art doesnot entail the possibility of constructive identification. The latter is underminedby a conceptual constraint. A similar line of reasoning will be suggested here withrespect to law. But it is similar only in a very abstract way. There are particular con-ceptual reasons due to which constructive identification in law is rendered impos-sible. These reasons, I shall argue, can be derived from Joseph Raz’s analysis of theconcept of authority and its bearing on the concept of law. It is to these that I nowturn.

Raz’s doctrine of authority is well known, and a brief presentation of its essen-tials should suffice here.11 First, we assume that all (efficacious) legal systems havede facto authority. This entails that the law either claims that it has legitimateauthority over its subjects, is held to possess it, or both. (This feature of law, thatit claims to be a legitimate authority, involves only the presumption that we dis-criminate between the kind of claims laid down by law, and those which would belaid down by a gang of robbers.) Raz’s main argument then, is as follows: for some-thing to be able to claim the possession of legitimate authority, as the law essen-tially does, it must be of the kind of thing which is capable of possessing it. Onlycertain kinds of things can be considered as possessing authority, and only thatwhich can be authoritative can either possess or fail to possess legitimate author-ity. Since law claims to possess legitimate authority, although it can fail to possessit, it must have the requisite features of what might be called authority-capacity.Raz identifies two such features:

First, a directive can be authoritatively binding only if it is, or is at least presented as,someone’s view of how its subjects ought to behave. Second, it must be possible to iden-tify the directive as being issued by the alleged authority without relying on reasons orconsiderations on which the directive purports to adjudicate. (1985: 303)

Patently, both features of authority-capacity undermine the possibility of constructive identification. The first reflects the idea that only an agent capable of communication with others can have authority over them. As we have seen,

11 The following discussion is based on ‘Authority, Law and Morality’ (Raz: 1985). Admittedly, thediscussion will do little justice to the complexity of Raz’s analysis of authority, nor will it attempt to cap-ture all the possible aspects and implications of this analysis. In particular, Raz’s argument that theauthoritative nature of law undermines not only the coherence thesis but also inclusive legal positivismcannot be explored here. I have expressed my own arguments to the same effect in Marmor (2001: ch 3).

Razian Authority and Constructive Identification in Law 87

nothing can be more straightforwardly opposed to the constructive identificationthesis than the idea that law must be a product of an act of communication.

Seeing how the second feature of authority-capacity is derived requires a closerlook at Raz’s analysis of practical authority. He takes the case of arbitration to rep-resent a paradigmatic example of authority. The arbitrator’s decision is meant toreflect certain reasons, to sum them up, and present their right balance. (Raz callsthese ‘dependent reasons’.) Since the arbitrator is there to settle a dispute, his decision must itself be taken as a reason for action on the part of the disputants.Thus, it must be distinguishable from those reasons which would have applied tothe disputants directly, had there been no arbitration in the first place. (Raz alsocalls the latter reasons dependent reasons.) Thus, Raz’s main insight is that ‘theonly proper way to acknowledge the arbitrator’s authority is to take it to be a rea-son for action which replaces the reasons on the basis of which he was meant todecide’ (1985: 298). The outcome is the second feature of authority-capacity. If theauthority’s directives are meant to replace some of the reasons on the basis ofwhich he was meant to decide, it must be possible for the disputants to identify hisdirective independently of those reasons. Again, this runs counter to the construc-tive identification thesis. According to the latter, the identification of law depends,partly, on considerations about what the law ought to be, namely, on considera-tions which the law is there to settle.

Hence, to maintain the constructive identification thesis one must either showwhat is wrong with Raz’s analysis of authority, or show why legal norms need notbe authoritative directives.12 First, however, it will be useful to see how Raz sum-marizes his concept of authority, in the following three theses (1985: 299):

The Dependence Thesis:

All authoritative directives should be based, among other factors, on reasons which applyto the subjects of those directives . . . Such reasons I shall call dependent reasons.

The Normal Justification Thesis:

The normal and primary way to establish that a person should be acknowledged to haveauthority over another person involves showing that the alleged subject is likely better tocomply with reasons which apply to him . . . if he accepts the directives of the authorityas authoritatively binding and tries to follow them, than if he tries to follow the reasonswhich apply to him directly.

The Preemption Thesis:

The fact that an authority requires performance of an action is a reason for its perfor-mance which is not to be added to all other relevant reasons when assessing what to do,but should replace some of them.

12 Notably, the requisite features of authority-capacity fit the standard sources of law, that is, notonly legislation and judicial decisions, but custom as well. The latter, as lawyers know very well, is notonly a matter of a regularity of behavior but one which is guided by certain norms which are taken tobe binding by the pertinent community. Thus, custom reflects the judgment of the bulk of a given com-munity about how people ought to behave in the circumstances. See Raz (1985: 306).


The dependence thesis is unlikely to be disputed. In particular, it is difficult to seehow someone can claim legitimate authority unless he claims to decide (at leastpartly) on reasons which apply to the alleged subjects. Of course, authorities candeceive, or fail to act on such reasons, but this is beside the point. Furthermore,suppose it is conceded that an authority might act on reasons aimed to benefit, say,X, when X is not an alleged subject of the authority. Even in this case, in claiminglegitimacy, the authority would have to claim that the alleged subjects have a rea-son to benefit X, a reason which applies to them, at least indirectly.

The normal justification thesis is also less controversial than might meet the eye.Some may tend to resist the claim that justifying one’s compliance with an author-ity involves holding that the authority knows better what ought to be done, as itwere. This might be conceded in certain cases. The alleged authority of parentsover their young children, for instance, is typically justified by the assumption thatparents are more likely to know what is best for their children. Yet one would beinclined to deny that this holds in other cases, particularly in that of politicalauthorities. However, nothing that strong is entailed by the normal justificationthesis. What has to be shown is that the authority is somehow better situated todecide what its subjects ought to do, which is not always a matter of ‘knowing whatis best’, so to speak. Legitimacy in issuing authoritative directives may be due tothe special circumstances of the given situation, rather than to any personal mer-its or expertise. This is typically the case when the authoritative directives aremeant to solve a collective action problem, like coordination problems, or in pris-oner’s dilemma situations etc, (Raz 19866: 56).13

Furthermore, even those who might wish to claim that the justification of polit-ical authorities can only be derived from certain doctrines about the special tasksthey are meant to perform, must nevertheless appeal to the normal justificationthesis. Suppose it is held that the main task of political authorities is to maintainthe peace and to monopolize the use of force in society. (These are dependent rea-sons.) The justification of political authority would then depend on its degree ofsuccess in maintaining peace, and on the relative merit of this objective as com-pared to other, potentially competing values. In any case, the justification ofauthority would be incomplete and the question begged, in the absence of anexplanation as to why public peace (or anything else) could not be maintained justas well were people to fail to comply with the authority’s directives. Thus again,what is appealed to is the normal justification thesis.

Finally, it should be emphasized that the normal justification thesis provides anecessary, but not a sufficient, condition for the legitimacy of authorities (Raz19866: 56). For a given authority to be legitimate, further conditions must besatisfied. In general, it must be shown that there are no reasons against complyingwith the authority which override the reasons for complying with it (ibid). In particular, Raz emphasizes the need to satisfy ‘the condition of autonomy’, that

13 I do not intend to claim that the solutions of all co-ordination problems require authoritative res-olutions. On the contrary, most that we encounter are resolved without the help of authorities.


‘the matter (over which someone is said to have authority) is not one which it ismore important that people should decide for themselves than that they shoulddecide correctly’ (Raz 1989: 1180).

The pre-emption thesis is the one most likely to prove controversial.14

Fortunately, however, for the purposes of our discussion it is unnecessary todefend this thesis. As Raz himself clarifies (1985: 305), the pertinent features ofauthority-capacity do not necessarily depend on the pre-emption thesis (thoughthey are entailed by it). Suppose the pre-emption thesis is denied, that is, author-ities’ directives are held to yield reasons for action which are not meant to replaceany of those on whose basis the authority was to decide, but only meant to beadded to the balance of reasons the subjects must assess. This seems to be the viewadvocated by Dworkin (1986: 429) in his reply to Raz’s analysis:

[Raz] is right that any successful interpretation of our legal practice must recognize andjustify the common assumption that law can compete with morality and wisdom and,for those who accept law’s authority, override these other virtues in their final decisionabout what they should do. . . . Raz thinks law cannot be authoritative unless those whoaccept it never use their own convictions to decide what it requires, even in this partialway. But why must law be blind authority rather than authoritative in the more relaxedway other conceptions assume?

Suppose this view is correct, the pre-emption thesis wrong, and the authority’sdirectives taken to result only in additions to the overall balance of reasons foraction. Even in this case, an authority’s directive would have to be identified assuch, namely, as an authoritative directive. It has to be identified as a directiveissued by an authority, and the reasons it yields as reasons to be added to, andweighed against, other reasons for action. In other words, the requisite features ofauthority-capacity as identified by Raz may be defended without subscribing to hisview that an authority’s directives create reasons for action which exclude the con-sideration of (or always override) the reasons which would otherwise applydirectly to the alleged subjects. It is quite sufficient to admit (as Dworkin seems toin this passage) that they create distinct reasons which can override other pruden-tial or moral reasons for action. In any case, the alleged subjects would have to beable to identify authoritative directives independently of, and as distinct from,other reasons. If determining what the law is involves considerations about whatthe law is there to settle, how can it compete with, even if it does not necessarilyoverride, that which the law is there to settle? To conclude: the argument quotedabove hits the wrong mark; repudiating the pre-emption thesis does not save theconstructive identification thesis.

The main argument against the Razian analysis, however, is a decidedly differ-ent one. Dworkin would argue that Raz’s account, irrespective of the details, must

14 The pre-emption thesis entails that an authority’s directives yield a kind of exclusionary reasonfor its alleged subjects, ie those who have reasons to comply with the authority’s directives in the firstplace. Assessing what to do, the subject has to exclude reliance on the dependent reasons. The conceptof exclusionary reasons was presented in Raz (1975: 35–48). For a critical review of Raz’s account ofexclusionary reasons see eg Moore (1989b).


have gone wrong somewhere since it does not fit the practice of adjudication.Furthermore, as far as Raz’s analysis is a conceptual one, it fails on its own terms:judges and lawyers do not use the term ‘law’ as this analysis would have it. Normsand principles are often considered legally binding despite the fact that no one inany authoritative capacity has issued them. Admittedly, Raz’s analysis makesallowance for the possibility that a norm is considered to be a legal norm becauseit is presented as an expression of an authority’s view about how its subjects oughtto behave, without this actually being the case. But this only brings us back to thepretence story: according to the Razian analysis of law we must maintain that adju-dication often involves a kind of pretence, which occurs whenever judges claim tofollow the law, where in fact there is no law to follow since the pertinent norm doesnot result from any authoritative directive.

Notably, on Dworkin’s own account, the force of this objection is somewhatmore limited than might seem to be the case. Fit, it should be remembered, is arather flexible notion; it admits of degrees and it is sensitive to various evaluativeconsiderations. So the question is not ‘Does it fit?’ but rather, ‘Which account fitsbetter?’ Furthermore, the suggestion that Raz’s analysis fails on its own terms ispotentially misleading. It is true that Raz’s account, just like Dworkin’s, strives tointerpret the legal practice as we find it. And yes, it would have been a problem ifit turned out that judges invariably believed that they apply the law even when,according to Raz’s analysis, they cannot be doing that because there is no law toapply. But this is precisely the gist of the ‘pretence story’, namely, that oftenenough, judges do not actually believe what they say.

It is presumably clear to anyone familiar with the politics of law, that at leastsometimes judges have a very good reason to claim that they are following the lawwhen they are in fact inventing it. This kind of pretence is far from seeming non-sensical or mysterious. In other words, the question now facing us is not whetherthe pretence story makes any sense at all. It is, rather, a question of quantity, as itwere: what level of pretence (and confusion) can be allowed without the resultbeing an absurd picture of adjudication? Admittedly, it is difficult to say how onewould go about trying to answer this question. Instead, let me mention a few pos-sible considerations which might mitigate the mystery of the alleged discrepancybetween theory and practice.

First, a more accurate picture of the proportions should be of assistance: howoften do judges claim to follow legal norms while in fact relying on extra-legal con-siderations? In view of the vast number of ‘easy’ cases settled un-problematicallyin the humdrum routine of adjudication (especially in the lower courts), a moreprecise idea may be formed of what people regard as the law of their land.15

(Paradoxically, both laymen and law students get a rather distorted picture in thisrespect. The former typically assume that law settles more than it actually does. Law students, on the other hand, typically read about the more problematic

15 It may be worth keeping in mind that most legal disputes do not even get to be litigated in courts,or if they do, many of them get settled before a judicial decision on the law is needed.


questions submitted to the courts of appeal, and are hence prone to the impres-sion that most legal cases are hard ones.)

Furthermore, Dworkin’s most convincing examples concern constitutionalcases from the American Supreme Court, which of course is not surprising, fortwo main reasons. First, a legal system based on a written constitution is bound tobe concerned with special problems. Predictably, these will emerge from the ten-sions between the relative importance of the constitutional provisions and theircondensed and rather laconic formulation. (More on this in Chapter 9.) Second,in a democratic country where the (appointed) Supreme Court has the power tooverturn democratic legislation, the court is bound to be under enormous polit-ical pressure. It has more political power than the public, and perhaps even thejudges themselves, would like to admit. In fact, this tension between the extent ofthe quasi-legislative power judges actually have, and the fact that the judiciary isusually not democratically elected to make law, is prevalent in all spheres of law,besides the constitutional one. (Again, one should not distort the picture by ignor-ing the actual politics. People are not ignorant of the enormous political powervested in their higher courts’ judges. This is manifest in the great concern aboutthe judges’ political records during the process of their appointment.)16

Thus, as one looks at the politics behind the practice of adjudication, especiallyin constitutional cases, the cloud of mystery seems to dissipate. Hard cases, par-ticularly those involving controversial instances of judicial review, are typicalexamples where a kind of pretence in adjudication makes perfect sense. But ofcourse, the need for pretence does not always have to be so straightforwardly polit-ical. To mention just one example, consider the possibility of overturning a judi-cial decision by an act of legislation: its acceptance is likely to be more readilyachieved when the judicial decision is presented as a novelty in the first place,rather than as an interpretation of the existing law.17 Thus, somewhat paradoxi-cally, the more reason judges have to fear the possible overturning of their decision (that is, one which creates new law) by legislation, the more reason theyhave to present it as if it were an interpretation of the existing law.

Finally, but not of least importance, it should be kept in mind that many hardcases can be found where judges do not pretend at all to apply or interpret theexisting law; they explicitly admit to a gap in the law, and to the fact that their decision (if followed as a precedent) will amount to the creation of new law. Inshort, the examples—when taken at face value—are not conclusive; the apparentdiscrepancy goes either way.

A somewhat similar objection to the Razian analysis of law’s authoritativenature has been raised recently by Moore. Although it does not dwell on the

16 This only serves to show that people are more aware of the judges’ power and practice to createnew law, even in fundamental issues at the front of American politics, than one might gather from thepicture as depicted by Dworkin.

17 A pertinent piece of folk psychology: people are happier to find others wrong than to admit theirown mistakes.


pretence problem, it also maintains that the Razian analysis yields an unacceptablysimplistic view about what judges do when they interpret the law:

The problem of Raz’s exclusionary reason account of a statute’s authority is that itexcludes just the materials a judge needs to make a fully reason based interpretation ofany statute. For plain meaning and legislative intention are inadequate materials for theapplication of any statute to any case. (Moore 1989: 891, my emphasis)

The objection is not made explicit here, as it is in Moore’s earlier writings, thedetails of which cannot be explored by the present discussion. Two prevalentsources of confusion should, however, be mentioned; both will be taken up againin the next two chapters, respectively.

The first part of Moore’s objection may be understood in both a weak and astrong sense. It is arguable that Raz’s pre-emption thesis puts too strong a con-straint on interpretation of the law. When an authoritative directive is ambiguousor otherwise unclear, reference to the dependent reasons might be required inorder to establish the content of the authority’s directive more precisely. Whenjudges interpret the law, they often have to rely on considerations about that whichthe law is there to settle, yet— within certain limits—they can still be said to be fol-lowing the law, not inventing it.

Be this as it may, the objection that Moore is putting forth is much stronger thanthis. His contention is that authoritative directives can never be applied withoutrelying on the dependent reasons. As he puts it, ‘plain meanings cannot guide judi-cial interpretations of statutes by themselves’ (1989: 891).

As far as this view depends on the assumption that all understanding of lan-guage and communication involves interpretation, it involves a fallacy. As we haveseen elsewhere,18 it ignores the fact that an understanding of language is requiredto make interpretation possible in the first place. In short, Moore is right in pre-suming that Raz’s analysis would be rendered implausible and rather vacuous if itwere the case that law could never be applied straightforwardly, as it were. But law,like any other form of communication, can simply be understood, and thenapplied. Interpretation is the exceptional, not the standard mode of understand-ing language.

The second part of the objection involves another fallacy, one which should beobvious by now. Raz’s analysis dwells on the role of intentions in the identificationof law. It repudiates the constructive identification thesis on the grounds that adirective cannot be identified as a legal directive, unless it is presumed to have beenintended as such. But we have already seen that the role of intentions in theidentification of things under a covering concept has no direct bearing on the waya text should be interpreted. Raz is not committed to the view that one is confinedto an attempt to retrieve the authority’s intentions in order to determine the con-tent of an authoritative directive. On the contrary, Raz’s analysis can be employedto elucidate some of the conditions under which it would be reasonable to allude

18 Chapter 2 above.


to the authority’s intentions when assessing how to read its directives, as well asthose conditions under which a deference to legislative intent would not make anysense. These possibilities will be explored in Chapter 8. To conclude, Moore errsin assuming that the authoritative account of law renders adjudication implausi-ble, as it would require constant reliance on legislative intentions. It is not a stancethat can be plausibly attributed to Raz.


7

No Easy Cases?

LEGAL POSITIVISM IS committed to the thesis that a distinction existsbetween (so-called) ‘easy cases’, where the law can be simply understood,and applied straightforwardly, and ‘hard cases’, where the issue is not deter-

mined by the existing legal standards. There is a widespread objection to this thesis, shared by Fuller, Moore, Dworkin, Fish, and others. Basically, the objectionconsists in the claim that this is in fact an illusory distinction, there being, in all therelevant respects, no easy cases as legal positivism would have it.

This chapter sets out to disprove the above argument. I will begin by explainingwhy legal positivism is, indeed, committed to the distinction between easy andhard cases, and in what sense this is so. I shall then go on to defend the distinctionin question against the various arguments offered against it.

1. A SCARECROW CALLED FORMALISM

One of the main tenets of legal positivism is its insistence on the conceptual separ-ation between law as it is and law as it ought to be.1 As stated in the previous chap-ter, this separation thesis necessarily involves the assumption that judges can (atleast in some standard sense, that is) identify the law and apply it without referenceto considerations about what the law ought to be in the circumstances. In otherwords, the distinction between the law as it is and the law as it ought to be entailsa parallel distinction between the activities of simply understanding the law andjust applying it, and modifying or creating it. This also suggests a particular viewabout the role of interpretation in adjudication. Interpretation is typically meantto designate a (partly) creative activity; it has to do with determining the meaningof that which is in some relevant respect unclear or indeterminate. Put somewhatloosely, one could say that interpretation adds something new, previously unrec-ognized, to that which is being interpreted. Taken together with the previouspoint, it entails that legal positivism cannot accept the view that law is always sub-ject to interpretation. It just cannot be the case that every conclusion about whatthe law is, is a result of some interpretation or other. To a greater or lesser extent,

1 This formulation is notoriously too crude and conceals various and rather distinct positions, butfor our present purposes, these complexities can be ignored.

judges participate, through their interpretative activities, in the process of modi-fying and creating the law. First, however, there must be a law there to interpret.

The fact that the distinction between easy and hard cases is entailed, or ratherrequired, by the distinction between the law as it is and the law as it ought to be, isof course of little help in the present context. The argument offered by the line ofcriticism presently under discussion is that legal positivism should be rejected pre-cisely because the distinction between easy and hard cases is indefensible. What weshould ask then, is whether the distinction between easy and hard cases has anyconceptual basis which is independent of the legal positivist doctrine. The mostprominent attempt to propound such a foundation is HLA Hart’s distinctionbetween the core and penumbra of concept-words, which he placed at the basis ofjudicial reasoning. Consider this, by now very famous, passage:

A legal rule forbids you to take a vehicle into the public park. Plainly this forbids an auto-mobile, but what about bicycles, roller skates, toy automobiles? What about aeroplanes?Are these, as we say, to be called ‘vehicles’ for the purposes of the rule or not? If we are tocommunicate with each other at all . . . [and] behavior be regulated by rules, then the gen-eral words we use—like ‘vehicle’ in the case I consider—must have some standardinstance in which no doubts are felt about its application. There must be a core of settledmeaning, but there will be, as well, a penumbra of debatable cases in which words areneither obviously applicable nor obviously ruled out. (1958: 63, emphasis mine)

This short passage epitomizes Hart’s thinking on our present subject. Simple as itsounds, however, it has been gravely misunderstood. This chapter sets out todefend the view encapsulated in this passage, in two ways. First, I shall try torespond to the various criticisms put forward against it. Second, I hope to demon-strate that Hart’s insight here is well entrenched in a highly sophisticated concep-tion of meaning and language, namely, that of Wittgenstein.

The gist of Hart’s thesis may be summed up as follows: the formulation of legalrules in a natural language makes their meanings depend, primarily, on the mean-ings of the concept-words used in these formulations. Since the meaning of a concept-word consists in (inter alia) its use, there must always be standardinstances in which the application of the concept-word is unproblematic. This iswhat Hart calls the core of meaning. However, since most of the concept-words inour language are actually vague or open textured, their application to the facts willalways involve some borderline cases. These are what Hart calls the penumbra,consisting in linguistic indeterminacy of the word’s applicability. In these cases, theapplication of the rule must be determined according to various non-linguisticconsiderations, such as the presumed purpose of the rule or any other relevant con-sideration which might bear on the case. But, and this is the controversial point,when the facts do fall under the core of the pertinent concept-words of the rule inquestion, the application of the rule is obvious and unproblematic, and this is whatis meant, in (the rather unfortunate) jurisprudential jargon, by the term ‘easy’ case.

It is important to bear in mind, however, that the view presented here is veryschematic; adjudication is of course much more complex a practice than Hart’ssimple example might be understood to suggest. The following are only a few

96 No Easy Cases?

examples: first, most of the legal rules judges are required to rely upon are alreadydirectly or indirectly ‘loaded’ with previous judicial interpretations. Second, ininstances requiring the extraction of rules from precedents, their formulationwould typically be much more difficult to determine. Third, the individuation oflegal rules often depends upon other legal rules or fragments of them (for instance,a rule determining the amount of income tax for a certain level of earnings mustbe supplemented by the rules defining ‘income’, ‘tax’ etc).

Notwithstanding these complexities, and many others I have not mentioned, itwould be a mistake, or at least premature at this stage, to dismiss Hart’s distinc-tion between easy and hard cases as over simplistic. In particular, it would be mis-guided to pronounce Hart’s thesis necessarily inadequate since adjudication is notmerely a matter of applying rules. First, it should be realized that Hart is not offer-ing a comprehensive theory of adjudication based on the distinction between easyand hard cases. The distinction is meant to illuminate one important aspect ofjudicial reasoning which is, however, by no means the only one. Secondly, one canhardly deny that the application of rules is at least the core of judicial reasoning.No reasonable account of the latter could be provided, without an explication ofwhat understanding, following, and applying a rule consist in. It still remains to beseen whether complexities of various kinds cast any doubts on this basic model, asit is suggested by Hart, but this should not prevent anyone from taking the basicmodel seriously, despite its apparent simplicity.

Before embarking on our main project, that is, examining Hart’s thesis in detail,several somewhat crude misconstruals should be set aside. First, one cannotoveremphasize the warning that the terms ‘easy’ and ‘hard’ cases are potentiallymisleading. The distinction has nothing at all to do with the amount of intellectualeffort required in order to decide a legal case. As Raz once pointed out, decidingan easy case in, for example, tax law, might be much more difficult than decidingmany hard cases (Raz 1977: 182). If any distinction were to be drawn betweenmore or less easy applications of rules, it would pertain to the complexity of theoperations required by the rule, and not to the distinction between easy and hardcases, in the sense being used here.2 An ‘easy’ case, as I understand the term here,means that the relevant legal norm can simply be understood, and applied to theparticular case without the mediation of an interpretation of the norm; we justunderstand what the law says, and know that it applies, or not, to the case at hand.3

More significantly, the distinction between easy and hard cases (whether in legalpositivism in general, or in Hart’s particular version of it) is sometimes associatedwith a philosophical scarecrow called judicial formalism (see Moore 1981:

2 Eg think of the difference between carrying out an order to continue an arithmetical series, say n+ 2, and attempting a more complicated one, 13 + n2 � 0.5, both of which would be ‘easy’ cases.

3 In the first edition I have also referred to an ‘easy case’ as one in which the case is ‘wholly deter-mined by legal standards’. Hershovitz (2002: 631) rightly complained that this formulation is onewhich even Dworkin would not find objectionable, since he believes that all cases are actually deter-mined by legal standards, including those I would call ‘hard’ cases. I think that Hershovitz is right thatthis formulation is ambiguous.

A Scarecrow Called Formalism 97

155–63). The latter is taken to suggest that judicial reasoning, that is, the applica-tion of rules to given facts, is a matter of logical inference expressible in terms ofanalytical truths, while the positivist doctrine that there are easy cases is taken tobe some type of endorsement of formalism. Needless to say, formalism is then easily undermined and the entire move considered a serious critique of legal pos-itivism. The truth is that formalism (in this sense) is so obviously false as to requirean explanation of how could it be associated with Hart’s doctrine in the first place.It is easily discernible that whatever it is that connects a rule to its application can-not consist of logic or analyticity.4 The move is even more perplexing when werecall that it was Hart himself who repeatedly exposed such a view as a fallacy(1958: 67; 1967: 100–6).

To pinpoint what seems to lie at the source of this confusion, consider Hart’sexample once again. A legal rule forbids the entrance of vehicles into the publicpark; Hart’s contention that ‘plainly this forbids an automobile’ is understood tobe a statement made true by its very meaning, hence an analytical truth. Given thisconstrual, the view that in easy cases the legal conclusion is logically deduced fromcertain premises, that is, rule formulations and statements expressing theclassification of the pertinent particulars, would seem easily attributable to Hart.But in fact the picture here is utterly confused. The concepts of logical inferenceand analyticity apply only to interrelations between rules or expressions, not totheir application to the world. As Hart put it, ‘logic is silent on how to classify par-ticulars’ (1958: 67), but it is precisely this classification to which his distinctionbetween core and penumbra pertains. In other words, we must keep separate whatmight be called ‘rule-rule’ and ‘rule-world’, relations; logic and analyticity pertainonly to the former, not to the latter kind of relation. The fact that in both cases thecriteria for correctness are semantic should not obscure this crucial difference.Suppose someone is pointing at a red object in front of him, saying, ‘This is red.’When asked to justify this assertion, one can only appeal to the meaning of ‘red’;one would say that this is what ‘red’ means, thus appealing to a rule about how aword is used in English. Surely, though, it makes no sense to say that we have a log-ical inference here, or that the ostension expresses an analytical statement. (This isunlike the statement ‘Bachelor = unmarried man’ which does not concern theapplication of rules, or expressions, but the semantic relation between them.)

In short, formalism is a scarecrow; neither Hart nor any other legal positivistmust subscribe to the view that the application of legal rules is a matter of logicalinference. This is not to say that Hart’s distinction between easy and hard cases isunproblematic, but only that one should concentrate on the serious problems, andformalism is not one of them.

4 This should not be confused with a different thesis, namely, that the law of universal instantiation((X)Fx infer Fa) ultimately mediates between the rule and its application. For a rejection of this ideasee Baker and Hacker (1985: 92–93).

98 No Easy Cases?

2. THE HART—FULLER DEBATE

Lon Fuller’s objections to Hart’s distinction between easy and hard cases may stillconstitute the most elaborate criticism of this thesis, one deserving a close examin-ation. Fuller (1958) understands Hart’s thesis to be based on three assumptions, ofwhich he accepts none. The first of these would construe the interpretation of alegal rule as a matter of interpreting the concept-words it deploys. The secondwould hold that the interpretation of concept-words in legal rules is (or ought tobe) determined by the ordinary use of these terms in natural language. The thirdalleged assumption of Hart’s, possibly taken to be entailed by the previous twopoints, is that the meaning of concept-words is insensitive to the particular legalcontext in which these words are meant to function.

Fuller’s main criticism then, is aimed against these three assumptions. However,he also attributes to Hart the view that unless these assumptions are maintained,‘we must surrender all hope of giving an effective meaning to the ideal of fidelityto law’ (Fuller 1958: 664). Fuller, accordingly, attempts to add another level of crit-icism in showing that the ideal of fidelity to law is not jeopardized if one rejectsHart’s position on easy cases.

Let us take a closer look at the details of Fuller’s account. Hart’s first allegedassumption, that the interpretation of a legal rule is purely a matter of determin-ing the concept-words it deploys, forms the target of Fuller’s most vigorous attack:

The most obvious defect of his theory lies in its assumption that problems of interpreta-tion typically turn on the meaning of individual words.

If the rule excluding vehicles from parks seems easy to apply in some cases, I submit thisis because we can see clearly enough what the rule ‘is aiming at in general’ so that we knowthere is no need to worry about the difference between Fords and Cadillacs. (1958: 662–63)

By way of demonstrating, Fuller asks us to consider whether the rule excluding vehi-cles from the park would apply to a group of local patriots who want to mount on apedestal in the park a truck used in World War II, as a memorial. ‘Does this truck, inperfect working order, fall within the core or the penumbra?’ he then asks (1958:663). His point here is actually twofold: first, that understanding a rule is always amatter of determining its purpose, and that it is only in the light of this purposiveinterpretation that one can judge whether the rule’s application to the facts of a givencase is to be relatively easy or difficult. Second, since the purpose of a rule can onlybe determined in the light of considerations as to what the rule is there to settle, ‘it isin the light of this “ought” that we must decide what the rule “is” ’ (1958: 666).5

5 I must admit that I find this particular example almost silly. Surely, the correct legal answer is ‘yes’,such an attempt to mount the truck, respectable memorial or not, is a violation of the ‘no vehicle in thepark’ rule. If the veterans want to mount the memorial, any lawyer would tell them to get an autho-rized permission to do so, which is as it should be. Perhaps a better example Fuller gives concerns therule which forbids one from sleeping on benches in the train station; so suppose that a respectable busi-ness man waiting for his train to arrive, dozes off on the bench for a minute or two––‘has he violatedthe law?’ Fuller asks. But again, even this example does not quite establish Fuller’s point: dozing off fora few minutes on the bench is simply a borderline case of ‘sleeping’.

The Hart—Fuller Debate 99

The basis for the criticism of Hart’s second alleged assumption is somewhatmore obscure, partly because it is not fully stated. Instead, we are left with a vaguedisavowal of ‘common usage’ as the basis for the analysis of meaning, as it is saidto ignore or underestimate the ‘speaker’s purpose and the structure of language’(1958: 669). In all, this is meant to imply that Hart’s concept of interpretation isbased on an inadequate theory of meaning. Fuller, though, does not discuss thekind of theory of meaning Hart supposedly has in mind, nor does he elaborate onthe grounds for its inadequacy. The reader is more or less left in the lurch. In anycase, the question of whether Hart’s thesis is based on a particular conception ofmeaning, and to what extent, is an interesting one in its own right, and I will dis-cuss it in the sequel.

Fuller’s objection to Hart’s third alleged assumption is based on a misunder-standing. The idea that concept-words used in the formulation of legal rules oughtto be interpreted so as to assign them the same meaning in each and every occur-rence, irrespective of the particular context in which the rule functions, is onewhich quite obviously ought to be dismissed outright. There is no reason toassume that the word ‘vehicle’, for instance, should be assigned the same meaningin the rule forbidding vehicles in the park, and a rule concerning the insurance ofvehicles. But the real question is whether or not Hart is committed to maintain thecontrary. The answer to this, I think, is quite clearly ‘no’. To begin with, Hart canonly be taken to be committed to the view that the core of concept-words, asopposed to their penumbra, remains constant across different rules. Thus, hewould say that an ordinary automobile should be taken as a standard example of‘vehicle’ if anything is, so that any rule concerning ‘vehicles’ must be taken toapply, inter alia, to ordinary automobiles. Conversely, it is quite clear that hewould not hold this true with respect to the question of whether or not bicycles arealso ‘vehicles’ for the purposes of different rules. But even this point (which Fullerseems to ignore) should not be overstated. Hart was very much aware of the factthat numerous concepts form family-resemblance concepts, in which even thecore, that is, standard examples, might vary from case to case. (This point will beexplained in greater detail below.)

Furthermore, there is no need to deny that in some unusual circumstances ajudge might face the possibility that the application of a rule to a given case inkeeping with the core of the pertinent concept-word would lead to unacceptableresults, and hence decide that even an ordinary automobile was not a ‘vehicle’ forthe purposes of the rule at hand. The question is whether or not in this case thejudge properly can be said to have applied the rule, and this clearly depends on thesoundness of the point raised by Fuller’s first objection (and perhaps the second aswell). We are thus left with Fuller’s first two objections, and I shall begin by con-sidering the second.

Recall that what we are faced with is the question of whether Hart’s distinctionbetween core and penumbra commits him to any particular theory of meaning, and,if so, to what extent. It is a biographical fact, based on Hart’s own account (cf 1983:introduction), that he has been greatly influenced by various philosophers of

100 No Easy Cases?

language, particularly Wittgenstein and Austin. But I would suggest that as some-one who has learnt from (the later) Wittgenstein, Hart would have avoided anyattempt to construct what is usually called a theory of meaning for a natural lan-guage. One of the main insights of Wittgenstein’s later work consists in pointing outthe futility of such a project and the misconceptions it would involve (cf. Hacker1986: ch 6; McGinn 1984: 29), and there is no evidence to suggest that Hart has everdissented from this point. On the contrary, Hart seems to share Wittgenstein’s viewthat an adequate account of meaning and language must not obscure the fact thatthe meaning of the words we use is completely overt and manifest in their use. Inother words, as long as the idea of a theory of meaning is understood in its contem-porary sense (for example, Davidson’s), namely, as a quasi-scientific explanation ofmeaning, it should not be assumed that Hart had any such theory in mind.

Wittgenstein’s impact is, however, the most evident in Hart’s treatment of theindeterminacy of sense, which underlines his distinction between core andpenumbra. He is usually understood to have adopted Wittgenstein’s views here,and it might be instructive to trace some of these ideas back to their source. Therequirement that sense be determinate has been propounded by Frege (and theearly Wittgenstein) and preoccupied him for various theoretical reasons. In gen-eral, he thought that an ideally scientific language would have to be one in whichall expressions had a determinant sense. He defined the latter as follows: A word/sentence has a determinate sense if and only if, for every possible object, there is adefinite answer to the question of whether it is within the extension (or reference)of the word/sentence or not. It is worth mentioning that Frege did not considerthis requirement to be satisfied in our natural languages. On the contrary, he sawnatural language as hopelessly contaminated by vagueness. (See Dummett 1981:31–35, 48, 316, 440.)

The later Wittgenstein not only discarded this Fregeian version of the require-ment for the determinacy of sense, but also was anxious to show that it made nosense whatsoever. It is only if one presumes that there is more to the meaning ofan expression than what is perspicuous in the practices of using it and explainingits meaning, that it would make sense to impose this requirement on any language,be it natural or scientific (see Baker and Hacker 1980b: 225). However, as this pre-sumption is utterly mistaken—as Wittgenstein strove to demonstrate throughoutthe Philosophical Investigations—Frege’s notion of the determinacy of senseemerges, in turn, as intrinsically incoherent.

Does this mean that all the words in our language are vague? That of coursedepends upon what we mean by ‘vague’. If we understand vagueness to mean that inthe practice of applying a word there are irresolvable disagreements in judgment overcertain areas of its application, then it is obviously true that most concept-words arevague. Yet, in order to be more accurate, vagueness should be distinguished from‘open texture’ and family resemblance. The former term (coined by Waismann6) is

6 This is not to imply that Wittgenstein would subscribe to Waismann’s analysis of ‘open texture’.See Baker and Hacker (1980a: 170).

The Hart—Fuller Debate 101

meant to designate the possibility of vagueness. Even terms which are not vague arepotentially so, since one can always imagine circumstances where there would beirresolvable disagreements in judgments as to the word’s applicability. ThatWittgenstein would subscribe to the view that most of the words in our language areat least possibly vague is quite undisputable (cf PI sect 187) yet one would be on safeground in presuming that he would not have attached great significance to this fact;‘The sign-post is in order—if, under normal circumstances, it fulfils its purpose’ (PIsect 87).

More importantly, vagueness should also be distinguished from family resem-blance. The latter designates a concept-word which is applied to various phenom-ena where ‘these phenomena have no one thing in common which makes us usethe same word for all’ (PI sect 65). Instead, these phenomena are linked to eachother by numerous and complex similarities, which Wittgenstein illustrates by thefamous metaphor of ‘family resemblance’ (PI sect 67), and it is only due to thesesimilarities that distinct phenomena are called by the same concept-word. Theidea that our language comprises family-resemblance concepts is perhaps one ofWittgenstein’s least controversial contributions to philosophy of language, andthere is no need to expand on it here. What we do have to address, however, is thequestion of whether or not the distinction between vagueness and family resem-blance has any bearing upon Hart’s thesis.

On the one hand the following difference is obvious: in the case of vagueness,the standard examples would share something which makes us use the same wordfor them all, whereas in the case of family resemblance we would face multifariousstandard instances which do not share any single defining feature. This, of course,makes the distinction between core and penumbra more intricate in the lattercase.7 On the other hand, Hart’s thesis remains basically untouched by this differ-ence: any concept-word, whether vague or one of family resemblance, must havestandard examples which manifest agreement in judgments about its applicability.Although no single defining feature shared by all the standard examples can bespecified in the latter case, this does not mean that they are not standard examples.Suppose we cannot find any one feature due to which chess, football, and patienceare all called ‘games’; does this mean that any of them is not a standard example of‘game’? Clearly not. On the contrary, this only shows the crucial importance of theidea that a great deal of agreement must exist as to what the standard examples ofour concept-words are. In the absence of such agreement, the successful employ-ment of family-resemblance concepts would have remained a total mystery.

Thus we can see that vagueness, open texture, and family resemblance all sup-port the thesis that the concept-words we employ must have a core of meaning,that is, standard examples which manifest agreement in judgments about theword’s applicability. These standard examples are used in our everyday explana-tions of what words mean, and we often have no better explanation of a word’s

7 The difference might also have a bearing on analogical reasoning in adjudication, but this pointcannot be explored here.

102 No Easy Cases?

meaning than to point to its standard examples. Furthermore, standard examplesprovide the criteria for correct understanding of expressions. Under normal cir-cumstances, someone who does not recognize the applicability of a word to itsstandard examples manifests that he has not mastered its use. And vice versa, sinceunderstanding the meaning of an expression consists in the ability to use (andexplain) it correctly, the ability to specify the standard instances of its applicabil-ity can usually be taken to show that one has understood the meaning of a givenexpression.

Notably, at some point Fuller seems to be challenging the picture of meaningdepicted here. As an example, he takes the word ‘improvement’ in the rule, ‘Allimprovements ought to be promptly reported’, which he claims ‘is almost asdevoid of meaning as the symbol “X”’ (1958: 665). He then goes on to demonstratethe disambiguation of ‘improvement’ in this sentence according to variousassumptions about communication intentions and context, with a particularemphasis on the purpose of the pertinent rule. All this is taken to demonstratesomething like the profound context dependence of meaning in general (1958:667–68).

However, Fuller’s discussion here is rather confused. If a word is ‘almost asdevoid of meaning as the symbol “X”’, then it cannot be disambiguated.Disambiguation can only take place when an expression has several possiblemeanings, not when it is devoid of meaning. In other words, either a word hasmeaning, in which case it can be used, and hence it must also have standard exam-ples, or it is devoid of meaning, in which case it simply cannot be used. Words canbe more or less vague, but not without meaning at all. Therefore, what Fuller’sexample would seem to demonstrate, is that the word ‘improvement’ must be putin a certain context so as to clarify the question of what is it an improvement of,for example. This is hardly surprising.

3. THE ARGUMENT FROM DEFEASIBILITY

Let us return to Fuller’s first and most important objection to Hart’s thesis. As wehave seen, he claims that Hart’s thesis is intelligible only against the assumptionthat the interpretation of a legal rule is a matter of determining the concept-wordsit employs, an assumption to which he objects forcefully. Fuller’s objection com-prises two main theses: first, that understanding a rule must always involve anunderstanding of its particular purposes; second, and as a consequence of the factthat determining the purpose of a rule typically involves considerations aboutwhat the rule is there to settle, ‘it is in the light of this ought that we must decidewhat the rule is’ (1958: 666).

I shall now concentrate on Fuller’s first thesis, while assuming that the second isrelatively sound. I shall attempt to show that understanding a rule does not neces-sarily require a grasp of its purpose, and if this is accomplished, Fuller’s secondthesis will in turn be rendered harmless.

The Argument From Defeasibility 103

One of the prominent arguments thought to support Fuller’s thesis is whatmight be called ‘the argument from defeasibility’: since it is the case that any legalrule—if construed literally—might, under certain circumstances, have utterlyimmoral or otherwise absurd results, a judge must always ask herself whether thecase before her is one in which the results would be unacceptable if the rule werethus applied. The fact that the answer is often obvious, so the argument continues,does not mean that the question need not always be asked and answered. Thus theapplication of a legal rule to any set of facts necessitates that the judge consider thepurpose of the rule and ask herself whether the purposes at play would not in factbe defeated were the rule to be construed literally. This, in turn, is taken to entailthat it never makes sense to speak of a straightforward, or literal, application of arule, as Hart’s thesis maintains (see Moore 1981: 277–79).

There are several strands of confusion here which ought to be unraveled.Immediate reflection should find the argument rather puzzling: it seems to holdthat since any rule, if construed literally, can result in absurd consequences, it fol-lows that no rule can be construed literally, which is an obvious fallacy. Thus, if theargument from defeasibility is to make any sense at all, its conclusion must berevised. The argument should be taken to lead to a prescriptive conclusion as towhat judges ought to do. This, in fact, is just how Moore understands (and sub-scribes to) Fuller’s argument; Fuller’s best argument, he says, ‘is a normative oneurging judges to disregard that meaning when it does not fit into their notion ofthe rule’s purpose’ (1981: 277). Understood in view of such a prescriptive conclu-sion, the argument would be stated as follows: Any rule, if construed literally, canlead to absurd consequences, and accordingly judges should always ask themselveswhether this danger is present and, when it is, decide according to standards whichwould avert the iniquity.

But if the argument is understood in this way, it cuts no ice in the dispute withHart (or with any other legal positivist for that matter). Moore’s version of theargument confuses the question of what following a rule consists in (which inter-ested Hart), with that of whether a rule should be applied in the circumstances. Evenif we concede that judges should always ask themselves the latter question (whichis far from clear), it does not follow that rules cannot be understood, and thenapplied, without reference to their alleged purposes or any other considerationsabout what the rule is there to settle.

Let me expound this point, since it is of crucial importance. It should be kept inmind that our discussion commenced with the positivist doctrine about the separ-ation between law as it is and law as it ought to be. We have seen that for this the-sis to be acceptable, it must be accompanied by the assumption that judges canidentify the law and apply it, without reference to considerations about what thelaw ought to be in the circumstances. Clearly, whether this latter assumption iswarranted or not, depends on considerations about what understanding and following a rule consist in. In particular, it turns upon the question of whetherthere is a sense in which following or applying a rule does not consist in, or is notmediated by, an interpretation of the rule.

104 No Easy Cases?

The argument from defeasibility, construed as Moore understands it, tackles adifferent question altogether, namely, of whether the rule should be applied (ornot) in the circumstances. Needless to say, the answer to this normative questionis bound to be affected by the moral contents of the particular law and legal sys-tem in question. This, however, is something which legal positivists have no reason to deny.

Perhaps Moore would reply that I have missed an important point in his argu-ment, namely, that his objection to the Hartian thesis is based from the outset onmoral, rather than conceptual, considerations. This, though, would put him onsafer ground only on the basis of the assumption that Hart’s thesis makes a moraldifference in the first place, which is simply a mistake. Moore’s assumption that itdoes seems to be drawn from the view which he attributes to Hart, that legal casesshould be decided ‘on the basis of linguistic intuition alone’ (1981: 277). Yet this isjust another confusion. Hart’s commitment to what follows from linguistic orconceptual analysis alone carries him only so far as to ground a conceptual distinction between easy and hard cases. It does not extend beyond that, to thequestion of how judges ought to decide various cases, that is, from a moral pointof view. In other words, an easy case is not one in which ipso facto a judge should,as a matter of moral duty, apply the rule in question. Legal positivists, such as Hartand Raz, have repeatedly claimed that it is sometimes the moral duty of a judge notto apply a certain legal rule to the particular case because it would be morallywrong to do so. In short, the question of whether judges should always follow thelaw and apply it, is clearly a moral one, and there is no reason to assume that theanswer is invariably yes.

Perhaps Moore was misled here by the argument which Fuller attributes toHart, namely, that his thesis is supported by considerations about the ‘ideal offidelity to law’ (Fuller 1968: 664). But this is a rather puzzling point. To begin with,it should be noted that Hart himself does not propound any such argument explic-itly, either in the article (Hart 1958) to which Fuller’s review is addressed or, to thebest of my knowledge, in any other place. Nor does such a position fit his generalline of thought: Hart has never described fidelity to law as an ideal. Is it at all rea-sonable to suppose that one so clearly concerned with the conceptual separationbetween law as it is and law as it ought to be would ground his descriptive con-ception of law on considerations about ‘the ideal of fidelity to law’? Would that notbe too obvious a fallacy?8

To sum up: the argument from defeasibility—construed as a moral objection toHart’s thesis—does not seem to hit the right target. Moore, however, offers anotherversion of this argument, based upon semantic rather than moral considerations.

8 At one point Fuller seems aware of these difficulties when he suggests the following, rather diagnostic observation: ‘I believe we can say that the dominant tone of positivism is set by a fear of apurposive interpretation of law and legal institutions, or at least by a fear that such an interpretationmay be pushed too far’ (1958: 669). As nothing of the sort has been suggested by Hart, however, one isbewildered about the source of this diagnosis, let alone its accuracy.

The Argument From Defeasibility 105

A scrutiny of this argument, which will distance us temporarily from Fuller, isoffered by the next section.

4. INDEXICAL PREDICATES AND EMPIRICAL DEFEASIBILITY

Hart’s thesis, it might be argued, suffers from the following flaw: it is confined, atbest, to those concept-words whose meaning determines their reference.However, as we have seen in Chapter 5, on Putnam’s analysis of indexical wordssuch as natural-kind predicates, meaning does not determine reference, but viceversa; it is the real nature of the entities designated by indexical words that deter-mines their meaning. To capture the relevance of this objection, let us substituteour worn-out example of the ‘No vehicles in the park’ rule with a legal rule thatcomprises an indexical concept-word. Thus, consider a rule attaching certain legalconsequences to a person’s ‘death’ (for example, that a physician is entitled toremove his organs for body-transplants).9 Now surely, on Hart’s account, theappropriate application of this rule would depend on, inter alia, the construal ofthe extension (or reference) of ‘death’. Hence easy applications of this rule wouldbe possible only if it is true of ‘death’, as it is of ‘vehicles’, that there are some stand-ard instances in which no doubts arise as to the word’s applicability. If, however,we presume the indexicality of ‘death’, so the argument would run, there is animportant sense in which no such standard examples exist.

To be sure, none (at least in this context) offer the absurd claim that it is impos-sible to be completely sure of a person’s death. The point, of course, is more sub-tle, namely, that whatever might be conceived to be the relevant standard instancesof indexical predicates, such examples are defeasible in a sense that other, non-indexical instances are not. This defeasibility consists in the fact that the standardexamples employed to explicate the meaning of indexicals are, at best, onlyapproximations of the real reference of the concept-word, and not—as I haveargued in the previous section—criteria for its correct use. Hence, in principle, itis always possible to discover that a certain instance formerly thought of as a stand-ard example of ‘death’, or any other indexical word, in fact constitutes a mistake,as it does not fall within the reference of the word after all. For example, whereasseveral decades ago we might have thought that a person suffering from total car-diovascular and respiratory failure for thirty minutes to be indisputably dead, wenow know that this is not necessarily the case. Nor would we say that the meaningof ‘death’ has changed since. When people use an indexical predicate, they intendto designate its reference ‘rigidly’, that is, whatever its real nature turns out to be(Moore 1985: 297).10

9 The example is Moore’s, and so is the gist, though perhaps not all the details, of the argumentunder consideration here. See Moore (1985: 293–97).

10 Interestingly, the ‘externalist’ semantics Moore relies on here has been employed by other criticsto reach the opposite conclusion; instead of charging Hart with the unwarranted assumption that thereare no easy cases, some critics claim, to the contrary, that Hart was not entitled to assume that the lawis as indeterminate as his thesis about the penumbra would seem to entail. To the extent that the law

106 No Easy Cases?

Let us take a closer look at the kind of defeasibility described as characteristic ofindexical words. Its most interesting feature is the fact that it is contrasted with thenotion of criterion. On a Wittgensteinian account, standard examples of a con-cept-word typically function as criteria for its correct use; they are constitutive ele-ments of the word’s meaning (though not, as some commentators have thought,identical to it). Thus the fact that ordinary automobiles are standard examples of‘vehicle’ is a fact about the meaning of ‘vehicle’, not a fact about the world. On theview examined here, however, this is not true of indexical words. The fact that apiece of metal is held to be a piece of gold, is allegedly a fact about the world, andnot about the meaning of ‘gold’.

Thus, the defeasibility in question is empirical;11 it derives from the fact that nostatement about the real reference of indexical concept-words is maintainablewithout doubt. Or, to use a Dummettian phrase, the indexicality of a predicateentails the possibility of ‘verification-transcendent’ truths about its real reference.Any piece of evidence which might support an item’s inclusion in (or exclusionfrom) the extension of a given indexical predicate, can only render the conclusionmore or less probable, but never certain.

Now consider the judicial application of a rule which contains an indexicalpredicate, like (allegedly) ‘death’. The judge must unquestionably engage in rea-soning which requires him to classify certain particulars, that is, to decide whetherthey fall within the extension of ‘death’. Thus, assuming the indexicality of ‘death’,any such classification would amount to an empirical statement (or presumption)about the world, that is, about the real reference of ‘death’. As such, it must be sup-ported by evidence, evidence which can only render the conclusion, at best, veryprobable, but not certain. Moreover, the type of evidence required cannot pertainto the rules or conventions of language. It must be scientific evidence, and hence,in principle, empirically refutable and defeasible.

Upon reflection, an easy reply to this argument seems to present itself immedi-ately. Suppose we concede the argument so far. Still, one might argue, in most legal contexts, the kind of defeasibility claimed to be characteristic of indexicalpredicates does not undermine Hart’s thesis. Generally, our certainty about theextension of an indexical predicate is no less than our certainty on the most basicscientific theories and world-views. The now recognized fact that such theories, no

employs indexical predicates, the reference of such concepts is what determines their meaning. Sincethere is a truth of the matter about the real reference of these concepts, there is, at least in principle, atruth of the matter about their meaning as well. (Brink, 1988; Stravropoulos, 1996; and cf Horowitz,2000). What both of these criticisms share is the assumption that Hart subscribes to ‘internalist’ seman-tics. As I explain below, this assumption is not quite warranted. Hart does seem to rely onWittgenstein’s conception of meaning, but I very much doubt it that externalism constitutes a criti-cism, or a counter-example, to Wittgenstein’s semantics.

11 As Moore’s argument is not confined to natural-kind predicates, the term ‘empirical defeasibil-ity’ would not capture the full scope of his thesis. On Moore’s account, many other types of concept-word are indexicals as well, notably moral concepts, and even legal terms of art, like ‘malice’ forexample. I allowed myself to ignore this complexity since it does not affect my arguments here; if at all,it renders Moore’s view even more controversial and less plausible than my presentation here wouldindicate.

Indexical Predicates and Empirical Defeasibility 107

matter how strongly adhered to, may turn out to be false, rarely affects our humdrum activities despite the fact that we often rely on these theories. Mostpeople who buy and sell gold, for instance, are not terribly worried by the prospectof scientific revolutions or the defeasibility of the evidence presently taken to sup-port the identification of gold. There seems to be no reason, then, to consideradjudication any different. True, every classification of a particular under anindexical covering-concept might turn out to be false, but this seems to have littlepractical bearing upon the possibility of there being easy cases in law. The level ofcertainty required in law is no different from the level of certainty required in agreat number of other activities where we rely on scientific, and hence defeasible,evidence.

Although this answer is basically correct, it underestimates the alleged force ofthe argument from defeasibility. Proponents of this argument, and particularlyMoore, have a more ambitious plan in mind than merely casting doubts on thereliability of judicial classification of particulars. Moore is skeptical of theWittgensteinian analysis of meaning as relied upon by Hart, not of judges’ abilityto classify particulars.

Moore divides contemporary theories of semantics into two basic conceptionsof meaning, realism and conventionalism. Conventionalism, in turn, comprisestwo basic, closely related conceptions of meaning. Both rely on the idea that mean-ings are conventionally determined by certain criteria, but one takes the notion ofcriterion to be analyzable in terms of necessary and sufficient conditions, while theother, notably Wittgenstein’s, maintains ‘some loose assemblage of the conditions[which] will be sufficient for the correct application of the word’ (Moore 1985: 292 n).

According to Moore, however, both conventionalist accounts of meaning failfor the same reason, namely, their inability to account for the indexicality of pred-icates like ‘gold’ or ‘death’ etc. In particular, they both entail that whenever achange occurs in our view of the real nature of the reference of an indexical pred-icate, and hence in the criteria for its correct use, a change must also occur in itsmeaning. But this, as Moore has learnt from Putnam, is unacceptable. SoWittgenstein must be wrong, at least with respect to indexical predicates (Moore1985: 297–98).

Unfortunately, this view of Wittgenstein’s conventionalism is far too simplistic.It rests upon a misconstrual of his analysis of the complex relations between thenotions of meaning, reference, and criteria. Admittedly, the concept of criteria isnot one of the clearest in Wittgenstein’s writings, and he seems to have changedhis mind about it during the years. Some points are clear enough, however, andtheir elucidation suffices to render the argument from empirical defeasibility quiteharmless.

To begin with, it must be noted that Wittgenstein did not identify criteria withmeaning. Although he did speak about ‘defining criteria’, he did not envisage aparticular set of definitive criteria which would determine the correct use of agiven expression in terms of necessary and sufficient conditions. (Moore, indeed,

108 No Easy Cases?

seems to concede as much.) On the contrary, on a Wittgensteinian account oneshould typically expect a multiplicity of criteria for the correct application of agiven concept. The criteria for understanding, for instance, are multifarious: onecan manifest understanding by performing an appropriate action, by explainingthat which he has understood, through the manner in which he or she responds tosomething, or by whatever other means.

Secondly, it is important to realize that all criteria are defeasible, not only thosewhich determine the use of indexical predicates. This is so as all criteria for the cor-rect applicability of a concept-word are circumstance dependent. The manifestationof pain-behavior, for instance, is—under normal circumstances—a criterion forthe assertion that one is in pain. But of course, one might pretend to be in pain, orintend to deceive etc. Yet, as Wittgenstein readily admitted, there is no hope ofenumerating all the variant circumstances which alter the criteria. Nor does thisfact undermine the role of criteria in determining meaning: ‘if a circumstancemakes the use doubtful, I can say so, and also how the situation is deviant from theusual ones’ (1967: sect 144).

Hence it should be clear that Wittgenstein did not conceive of the relation des-ignated by ‘p is the criterion for q’ as one of entailment. Thus, to revert to one ofour examples, the fact that a half hour of cardiac-respiratory failure is, under nor-mal circumstances, a criterion for calling a person ‘dead’, does not entail that agiven person is in fact dead. Just as pain-behavior does not entail that one is in factin pain.

To capture the full significance of this point, another distinction should bementioned here, that between criteria and evidence. From the academic year1933/4 onwards, Wittgenstein uses the concept of criterion with an emphasis onits contrast with what he called symptoms. The latter, as opposed to criterion, signify empirical evidence which is learnt from experience. Thus, for example, acertain chemical reaction might be a symptom of the identification of ‘gold’,something which can be learnt from experience, whereas the fact that ‘gold’ is akind of metal (and not, for example, the name of an animal) is a criterion for itsuse (see Hacker 1986: 308).

The distinction is of crucial importance. As Hacker rightly observed, ‘evidentialrelationship presupposes the independent identification of the relata. A criterion,however, defines, or partially defines that for which it is a criterion’ (ibid).

It follows that the relation between meaning and a theory about reference ismore complicated than Moore seems to have presumed. If a given phenomenon isconsidered a symptom of a concept’s applicability, the fact that this evidential rela-tion eventually turns out to be false has no bearing on the meaning of the concept.Similar changes in criteria, on the other hand, do typically involve appropriatevariations in meaning. Interestingly, Wittgenstein had anticipated the kind ofobjection raised by Moore. Consider the following section:

The fluctuation in grammar between criteria and symptoms makes it look as if therewere nothing at all but symptoms. We say, for example: ‘Experience teaches that there israin when the barometer falls, but also teaches that there is rain when we have certain


sensations of wet and cold.’ In defense of this, one says that these sense impressions candeceive us. But here one fails to reflect that the fact that the false appearance is preciselyone of rain is founded on definition. (PI sect 354)

The connection between the barometer and the occurrence of rain is surely anevidential, symptomatic one; the fact that it can turn out to be false has no bear-ing on the meaning of ‘rain’. But our sensations of wet and cold, and whatever elseconstitutes our perception of rain, are—in normal circumstances—criteria for thecorrect applicability of the word ‘rain’; not because they cannot turn out to befalse, but because they define, as a matter of linguistic convention, what we meanby ‘rain’. If, for some bizarre reason, a change occurs in those criteria, it wouldindeed be the case that the meaning of ‘rain’ has changed as well. Likewise, cardiac-respiratory failure is not a criterion for the correct use of ‘death’, but a symptom,or a piece of evidence, which is associated with this unfortunate state of affairs onthe basis of experience. On the other hand, the fact that we associate death with theabsence of any vitality is a criterion for its use. If one day we discover that deadpeople are capable of reading philosophy, no doubt our concept, and hence themeaning, of ‘death’ will require a dramatic revision.

Two conclusions emerge so far. First, that the most plausible examples of index-ical predicates the theory of whose reference can change without causing anychanges in meaning, do not constitute counter-examples to Wittgenstein’s analy-sis at all, as they involve a revision of symptoms rather than criteria. Second, thataccording to Wittgenstein, a change in criteria does carry with it a respectivechange of meaning.

The matter, however, cannot be settled so easily. One of the most interestingpoints emphasized by Wittgenstein in this context is that criteria and symptomsfluctuate, particularly in science.12 Scientists often define a concept without reallydeciding whether an item in their definition is a symptom or a criterion. Thus, forinstance, the presence of a certain kind of bacteria in a person’s throat might eitherbe a symptom of the occurrence of a certain disease, or a criterion for the use ofthe concept-word signifying that disease. The point of this observation is not tocomplain of the deplorable laxity of scientific terminology; from a scientific pointof view the distinction is usually not too important. Yet this fluctuation empha-sizes how difficult it is decide whether changes in scientific theories yield conse-quent changes in meaning or not, thus stressing that the answer to this questionoften depends on the way scientists themselves view the relation between a phenomenon and that which it is a phenomenon of. Hence, typically, the actualhistory of the pertinent scientific development must be consulted. To see whethermeanings have changed or not, one must look carefully into the ways in whichpeople have understood and used the given concept.

To my mind, this Wittgensteinian analysis is much more reasonable and accu-rate than the aspect of Putnam’s theory relied upon by Moore. On Putnam’s

12 See Hacker (1986: 309), and refs there.

110 No Easy Cases?

account, as Moore would have him,13 no change in the acceptable theory of thereference of any indexical predicate yields a change in its meaning. I find this the-sis unconvincing for two reasons: first, contrary to the impression arising fromPutnam (1975: 197, 236), the alternative is not necessarily the opposite,Feyerabendian conception, according to which every change in a theory about thereference of an indexical predicate entails a change in its meaning. Putnam wor-ries rightly that unless Feyerabend’s view can be repudiated, skepticism isinevitable; if the meaning of our theoretical terms varies with each successiveexplanation of their reference, then the separate explanations are not explanationsof the same thing, and accordingly the newer ones are no better than their prede-cessors. Yet Wittgenstein’s distinction between symptoms and criteria should alleviate this worry considerably. Most scientific theories affect the symptoms of,rather than the criteria for, the use of indexical predicates.

Secondly, Putnam’s view, when construed in an unqualified manner, seemsexaggerated in the opposite sense as well. All too often the meaning of words doeschange, sometimes radically, as a consequence of surprising discoveries abouttheir reference. It seems quite extraordinary to insist that accumulation of know-ledge about the world does not bring with it a change in the meaning of the wordswe use. Suppose we discover, for instance, that the animals we now call ‘tigers’ arein fact sophisticated machines composed of silicon chips, perhaps implanted heremany centuries ago by aliens. Would anyone want to insist that the meaning of‘tiger’ remains the same? I suspect that apart from devout Putnamians (which I amnot sure that Putnam himself still is) no one would make such a claim. We wouldsay, instead, that we have discovered that there are no tigers; those things formerlythought to be tigers have in fact emerged as something else (cf Putnam 1975: 243).However, if we continue to use the word ‘tiger’ to name these things, ‘tiger’ wouldsurely have acquired a very different meaning, not only a different reference. Beinga kind of animal is not a symptom, a piece of evidence which renders theclassification of certain particulars as ‘tigers’ more or less probable; it is a criterionfor the use of this word.

Consider a less dramatic, and hence perhaps more plausible, example. Take thedifferences between our conception of the reference of ‘atom’ and, say, that of theGreek atomists. Let us also presume that some of the differences consist not onlyof variations in the accepted symptoms, but also of the criteria for the meaning of‘atom’. Are we forced to say, on a Wittgensteinian account, that we no longer referto the same substance? And hence that we cannot make sense of the contentionthat we now have a better theory about ‘atoms’ than the Greeks did? Surely not.The fact that the meaning of ‘atom’ in our idiolects is different from the meaningof ‘atom’ in those of the Greeks does not entail that we are not referring, roughly,

13 See Moore (1981: 202ff; 1985: 300). It should be noted that Putnam can hardly be said to havecriticized Wittgenstein’s conception of meaning. The picture of meaning Putnam strove to undermine,as he explicitly made clear, is the one which conceives of meaning exclusively in terms of a state of mind,something which Wittgenstein strove to undermine himself. I have not seen anywhere that Putnamsaddles Wittgenstein with a commitment to internalist semantics.


to the same substance. Rough approximations are all one needs here. As with thecircumstance dependence of criteria, one normally understands the difference ordeviation, and has the ability to explain how it is different.

We are now in a position to conclude that not much is left of the argument fromdefeasibility. Construed as a moral objection to Hart’s thesis, it is irrelevant.Construed as a general objection to Wittgenstein’s conventionalism it turns out tobe idle.

To return to Fuller’s arguments, it is not completely clear whether Fuller meantthem to be understood along the lines suggested by Moore. I would suggest thatFuller’s most interesting objection to the Hartian thesis is meant as a conceptualone, based on considerations about what understanding a legal rule consists in.Basically, Fuller seems to maintain that understanding a rule always consists in(inter alia) a grasp of its purpose. Notably, if this view is correct, it would amountto a serious objection to the Hartian thesis, one which would refute it on its ownterms. Furthermore, if we add to this the assumption that typically, determiningthe purpose of a rule involves interpretative hypothesis about what the rule is thereto settle, not only Hart’s distinction between easy and hard cases, but also the separation thesis distinguishing the law as it is from the law as it ought to be, would be refuted. Thus, a careful examination of Fuller’s suggestion is of greatimportance.

5. WITTGENSTEIN ON FOLLOWING A RULE

The question to be addressed at this point is whether or not it makes sense to claimthat one can understand a rule only in view of the purposes it is taken to advance.More generally, the question is whether it makes sense to maintain that any appli-cation of a rule must be mediated by an interpretation of the rule in question.

It has already been argued, in Chapter 2, that the idea of understanding anexpression (or explaining its meaning), and interpreting it, should not be usedinterchangeably. There is no need to repeat this argument here. However, it mightbe thought that even if this is generally conceded, it still remains an open questionwhether one can be said to be following a rule, without the rule being thus inter-preted. The idea that interpretation is always required in order to determine whichacts are in accord with a rule (and which go against it), seems supported by the idea that rules as such are indeterminate. In other words, there seems to be a gap between a rule and its application, a gap which can only be bridged by inter-pretation.

Repudiating this idea (along with the various misconceptions involved in it)was one of Wittgenstein’s main concerns in his discussion of following rules in thePhilosophical Investigations (sects 143–242). Needless to say, a full account of thisdiscussion of Wittgenstein’s would go far beyond the scope of this work (or of mycompetence, for that matter). Instead, I shall try to summarize those of his argu-ments which have a direct bearing on our present concerns.

112 No Easy Cases?

Wittgenstein’s concern with what following a rule consists in derives from his con-ception of meaning. Knowing the meaning of an expression is not an inner state ofmind, but rather an ability (or an array of abilities) to use the expression in accord-ance with the rules of the language. Hence, the relation of the meaning of an expres-sion to its use(s) is a particular instance of the relation of a rule to its application.

Let us begin with the clarification of two general points. First, as has alreadybeen mentioned, one of Wittgenstein’s most important observations about lan-guage is that the meaning of expressions in language is perspicuous throughout.Using language is a rule-governed activity, like a game, hence the rules in questionare normative, and like all normative rules, they explicitly guide actions, serve asstandards of evaluation, play explanatory roles in making actions intelligible, playa crucial role in instructing learners how to engage in the pertinent activity, etc.The moral to be drawn from this is that semantic rules, being normative, must beperspicuous, that is, that it does not make sense to speak of ‘hidden rules’, or rulesthat can be discovered only through scientific or quasi-scientific exploration(Hacker 1988: 162–65; McGinn 1984: 119).

Furthermore, the rules constituting a language-game should be clearly distin-guished from the background state of affairs in which there is a point in havingsuch rules and against which they are intelligible.14 Every rule-guided activity pre-supposes a particular background which is not part of the activity itself but makesit possible and relevant. The game of tennis, for instance, is possible only againstthe background of the laws of gravitation, the fact that we are normally capable oftelling whether a ball has fallen inside or outside the marked lines, the fact that theplayers normally desire to win a game, etc. All this is part of the backgroundagainst which there is a point to having the game. Yet in normal circumstances,none of these points would be cited as being part of the rules constituting thegame. Furthermore, as Wittgenstein observed, although we can envisage thingsbeing otherwise, ‘the more abnormal the case, the more doubtful it becomes whatwe are to say. And if things were quite different from what they actually are . . . thiswould make our normal language-games lose their point’ (PI sect 142).

The distinction is relevant here for the following reason: had Fuller’s thesis beenconfined to the contention that rules in general, or legal rules in particular, aremade intelligible only against the background of (inter alia) certain purposeswhich they can be taken to advance—that is, in the sense of background outlinedabove—it would have been a sound observation. But in the present context, itwould have been quite innocuous as well. The distinction between easy and hardcases as maintained by legal positivism concerns the question of what following arule consists in, not the question of what makes it possible to follow the rules ofthis, rather than a different, game.15

14 Baker and Hacker (1985: ch 5); Pears (1988: 425). See also Chapter 2, sect 2.15 It is possible that many of the arguments presented by Fuller’s book (1969) on the ‘inner moral-

ity of law’, as he calls it, can be accounted for along the lines suggested here. If so, this would also suggest that, contrary to appearances, many of his theses are in fact reconcilable with legal positivism.But of course, this is a wide topic which exceeds the interests of this chapter.

Wittgenstein on Following a Rule 113

The second point and perhaps the key to the whole discussion, is thatWittgenstein conceived of the relation between a rule and its application as agrammatical one, that is, one which is internal to language. To understand a ruleis to be able to specify which actions are in accord with it (and which would goagainst it), just as to understand a proposition is to be able to specify its truth con-ditions. In other words, it does not make sense to say that one has understood arule if one cannot identify the actions which are in accord with it. (We are talkingabout the standard cases; none of this is meant to deny that for every rule therewould be countless borderline cases.) (See Baker and Hacker 1985: 91; Pears 1988:468.) This should be clarified in some detail.16

Wittgenstein begins his discussion of following a rule with the idea of the inde-terminacy of rules. He asks us to consider the following example: a pupil is orderedto continue an arithmetical series, say from 1,000 on, according to the rule n + 2;he then writes ‘1,000, 1,002, 1,004, 1,008 . . .’ Two main questions are exemplifiedhere. First, any rule, it seems, can be misinterpreted, and it is not clear what thismisinterpretation consists in.17

Second, the actions in accord with a rule seem to be under-determined by therule’s formulation: whatever one does can be brought into accord with the rule onsome interpretation of it. Both suggestions, however, manifest profound misun-derstandings. Thus, consider sect 198:

But how can a rule show me what I have to do at this point? Whatever I do is, on someinterpretation, in accord with the rule.’ This is not what we ought to say, but rather: anyinterpretation still hangs in the air along with what it interprets, and cannot give it anysupport. Interpretations by themselves do not determine meaning.

And the same point in sect 201:

It can be seen that there is a misunderstanding here from the mere fact that in the courseof our argument we give one interpretation after another; as if each one contented us fora moment, until we thought of yet another standing behind it. What this shows is thatthere is a way of grasping a rule which is not an interpretation, but which is exhibited inwhat we call ‘obeying a rule’ and ‘going against it’ in actual cases.

This is the crucial point: if a rule could not determine which actions were in accordwith it, then no interpretation could do this either. Interpretation is just anotherformulation of the rule, substituting one rule formulation for another, as it were(and thus, often actually changing the rule). Hence it cannot bridge the gapbetween rule and action. A rule, in other words, is like a sign and its meaning

16 The following discussion will not dwell on Wittgenstein’s alleged ‘rule skepticism’ as it struckKripke (1982). The latter has been repeatedly—and cogently—criticized by numerous writers. SeeBaker and Hacker (1984b); McGinn (1984); Pears (1988).

17 Wittgenstein here considers, and undermines, a whole array of possibilities. For instance, can wesay that the pupil’s misinterpretation of the rule consists in the fact that he had not captured the inten-tion of the one who gave him the order? Would the latter say, ‘Well, this is not what I had in mind’?The suggestion is perplexing: does it make sense to say that all the steps were in his mind before theyhad actually been taken? (PI sect 188) For a survey and exegesis of Wittgenstein’s arguments, see Bakerand Hacker (1985: 81–227).

114 No Easy Cases?

cannot be determined by another sign; the meanings of rules, like those of all sym-bols, must be determined by the actions themselves, that is, by the way the rulesare used. Hence also, understanding a rule consists in the ability to specify whatactions are in accord with the rule, which is not an interpretation of the rule, butis exhibited by ‘obeying the rule’ or ‘going against it’, that is, in practice. Considerthis subsequent part of sect 198:

‘Then can whatever I do be brought into accord with the rule?’—Let me ask this: whathas the expression of the rule—say a signpost—got to do with my actions? What sort ofconnection is there here?—Well, perhaps this one: I have been trained to react to thissign in a particular way, and now I do so react to it.

But that is only to give a causal connection; to tell how it has come about that we now goby the signpost; not what this going-by-the-sign really consists in. On the contrary; Ihave further indicated that a person goes by a signpost only in so far as there exists a reg-ular use of signposts, a custom.

This completes the previous point. If the meaning of rules (and signs etc) is deter-mined by their use, one might surmise that any action can be made to be in accordwith the rule. In other words, one still remains puzzled as to how rules can deter-mine the actions in accord with them, if it is the actions which determine themeaning of the rule. But of course, there is a normative connection between rulesand actions,18 consisting in the existence of a custom of using the sign or rule thusand so, and not otherwise. Which is to say that learning how to follow a rule islearning to master a technique (PI sect 199). Yet Wittgenstein is careful to warn usagainst a potential misunderstanding: it might be thought that instead of explain-ing what following a rule consists in, he has provided a kind of causal or psycho-logical explanation of how, for example, one learns to follow a rule. This of course,is not the point. Something is a signpost only in so far as there exists a regular useof that sign for particular purposes, and it is this regularity of use which providesthe meaning of the sign.

Wittgenstein’s contention that the use of rules consists in there being a customis potentially misleading; one is inclined to think that ‘custom’ is meant to indicatethe necessity of a community of users, a social practice. But, as Baker and Hacker(19846: 20) made clear, this conclusion is inaccurate: Wittgenstein’s emphasishere is on the multiplicity of the occasions of use, not on the multiplicity of users.As they put it, ‘The contrast here is not between an aria and a chorus, but betweenlooking at a score and singing’ (ibid; see also Pears 1988: 500).19

A further misunderstanding might arise from the idea that the meaning of rulesis determined by their use: ‘Hence there is an inclination to say: every action

18 Contra Kripke, Wittgenstein does not take a skeptical standpoint here: ‘if everything can be madeout to accord with a rule, then it can also be made out to conflict with it. And so there would be neitheraccord nor conflict here’ (PI sect 201)—which is obviously absurd—not a skeptical standpoint to betaken seriously. See n 16, above.

19 It is possible, however, that Wittgenstein actually meant both meanings of ‘custom’ to be relevanthere. This partly depends on how one understands his famous private language argument.


according to the rule is an interpretation. But we ought to restrict the term “inter-pretation” to the substitution of one expression of the rule for another’ (PI sect201). Suppose one concedes Wittgenstein’s analysis so far, but still wishes to insistthat every action according to a rule involves interpretation. Now, one cannot saythat the action is mediated by interpretation, since, as we have seen, the gapbetween a rule and its application cannot be bridged by another formulation of therule. One could say, however, that although interpretation does not mediatebetween rules and actions, still acting according to the rule is an interpretation ofthe rule. But this would be misleading since in one sense it is vacuous, and inanother wrong. It is vacuous if by ‘interpreting’ we simply mean ‘this is how heunderstood the rule’ and can thus also say that he has misunderstood it. However,if ‘interpreting’ is taken to mean something which amounts to yet another formu-lation of the rule, then obviously the suggestion above would be wrong: actingaccording to the rule does not constitute another formulation of it, but ratherexhibits that one has understood the rule correctly.

Wittgenstein might be presented with counter-examples. Does not a perfor-mance of a symphony, for instance, amount to an interpretation of it? On the faceof it, Wittgenstein’s proposal of limiting the term ‘interpretation’ to the substitu-tion of one expression of the rule for another is too restrictive. This would be amisunderstanding, however, since Wittgenstein need not deny that there are occasions in which actions manifest a certain interpretation of a rule. It would bewrong to suggest, however, that every instance of following a rule is an interpreta-tion of it, which would be irreconcilable with the normative aspect of rules andrule-following. To interpret a symphony, whether by performing it or not, onemust first have a pretty good idea of what the score means.

The idea that all rules must be subject to interpretation might still be thought tobe essential, if we connect Wittgenstein’s discussion of vagueness with his ownconception of what understanding a rule consists in. The idea here would run asfollows: rules formulated in a natural language, such as legal rules,20 are bound toemploy general concept-words with various degrees of vagueness. However, if weconcede Wittgenstein’s point that understanding a rule consists in the ability tospecify which actions are in accord with the rule, we are led to the conclusion thatwe can never have a complete grasp of a rule; our understanding of rules willalways be deficient, as there will always be instances where one cannot tell whetheror not the rule applies. Hence, if we want to allow for a complete understanding ofrules, so the argument continues, we must also admit that every rule is bound tobe interpreted.

The answer to this is that the quest for completeness is misguided here. One ofWittgenstein’s most important observations in discussing the concept of explana-tion is that the quest for completeness—if understood as a demand for theremoval of every possible doubt—is incoherent: ‘an explanation serves to remove

20 To be sure, there is nothing unique to legal rules here; all rules can be formulated in language,including the rules of language itself.

116 No Easy Cases?

or to avert a misunderstanding—one, that is, that would occur but for the explan-ation; not every one that I can imagine’ (PI sect 87). The same holds true of a complete understanding of rules. The assumption that there must be more tounderstand there derives, in both cases, from the same source of confusion. It follows from the presumption that a complete account of the meaning of anexpression is a Merkmal-definition, that is, providable in terms of necessary andsufficient conditions (Baker and Hacker 19806: 29–45). Thus, just as it is mis-guided to presume that unless one can specify necessary and sufficient conditionsfor the applicability of a concept-word, one’s grasp of its sense is in some wayincomplete, it is equally misguided to assume that the complete understanding ofa rule must remove all possible doubts about its applicability.

This should not be taken to mean that the distinction between complete andincomplete understanding or explanation is out of place. It is only that we shouldjettison the association of completeness with necessary and sufficient conditions.An explanation would be complete, if it fulfils its particular purpose, that is, if itremoves the misunderstanding that otherwise would have existed. Equally, ‘thesignpost is in order—if, under normal circumstances, it fulfils its purpose’ (PI sect87). And one has a complete grasp of a rule, if under normal circumstances, one isable to specify which acts are in accord with the rule, and hence, which would goagainst it.

It should be emphasized that all this is not meant to imply that in all cases of dis-agreement on the applicability of a given rule (due to vagueness, for example),Wittgenstein would maintain that ‘anything goes’, as it were. It very well might bethe case that interpretation is required to determine the applicability of a rule incertain circumstances, and interpretation can, of course, be based on reasons. Butinterpretation here should not be confused with understanding the meaning of therule. If the formulation of a particular rule is inadequate for purposes of deter-mining a particular result in certain circumstances, then there is nothing more toexplain or understand about its meaning; what is required is a new formulation ofthe rule—one which would remove the doubt—and this is what the term ‘inter-pretation’ properly designates.

At this point we can return to Fuller’s thesis, since its inadequacies should beclear by now. Fuller’s assumption that one can understand a rule only in view ofthe purposes it is taken to advance, violates the distinction between following arule and interpreting it. To follow a rule, one needs to understand and act accord-ing to it, with the intention of doing so. As we have seen, the relation between arule and its application is a grammatical one, that is, internal to language.Understanding a rule consists in the ability to specify which actions are in accordwith the rule, that is, at least in some standard cases, and hence also, which wouldgo against it. Thus, it does not make sense to say that one has understood a rule yetdoes not know which actions would constitute following it. On the other hand,assumptions about the purposes a rule is meant to advance are interpretativeassumptions which do not mediate between a rule and its application, but ratherbetween one formulation of the rule and another. Hence, the thesis that one


always needs to determine the purpose of the rule in order to be able to specifywhich actions are in accord with it, amounts to contending that the application ofa rule always requires its translation into another rule, which is an obvious absurd-ity. Interpretation is required only when the formulation of the rule leaves doubtsas to its application in a given set of circumstances. In such cases, assumptionsabout the purposes the rule is meant to advance should probably take a prominentrole in solving the particular difficulties encountered. But again, this is the excep-tion to the standard understanding of what a rule means, parasitic on our abilityto follow rules without the mediation of interpretation.

118 No Easy Cases?

8

Legislative Intent and the Authority of Law1

THE ROLE OF intentions in interpretation has been discussed from dif-ferent perspectives and in various contexts. At the more abstract level, Ihave argued for a distinction between the role intentions play in determin-

ing the content, as opposed to the identification, of that which is a possible objectof interpretation. Applying this distinction to the law, I have argued that theauthoritative nature of law accounts for the conceptual role intentions play inidentifying legal norms as such, which still leaves open the question of whether thelegislature’s intentions have any particular role to play in the interpretation ofstatutes. It is this question which I shall try to answer here.

Although the topic is familiar, a few introductory remarks are in order; these willform the chapter’s first section. The following two sections will then concentrate onthe attempt to clarify the intentionalist’s thesis irrespective of its validity. Thefourth and last section is devoted to the question of justification. In other words, Ishall attempt to elucidate the conditions under which it would be reasonable forjudges to defer to the legislature’s intentions in statutory interpretation.

1. WHAT IS THE ISSUE?

Should legislative intent play a role in statutory interpretation, or indeed can itplay any such role? This is one of the age-old questions of common law juris-prudence. Yet, not surprisingly, some of the issues involved are muddled by a lackof clarity in the definitions of the pertinent questions. It is the task of clarifying theissue which I intend to address first. The most immediate difficulty encounteredstems from the plurality of views under consideration. Roughly speaking, we can,of course, identify two main camps: those who favor deference to legislative intent,under certain circumstances, referred to below as intentionalists, and those whooppose such deference. Yet each standpoint actually comprises a very wide rangeof positions. In fact there is hardly any position which has not been argued for by

1 A note on the revision: the first edition of this chapter has been subject to various critical essays,most notably, by Waldron (1999: ch 6). Since I have already responded, in some detail, to Waldron’scritic (see Marmor 2001: ch 5), I have decided to change very little in the content of this chapter andconfined my revisions to matters of style and some clarifications which were needed.

one scholar or another, from outright skeptics, who claim that ‘there is no suchthing as a legislative intent’, to those who claim that legislative intent is the onlylegitimate source for statutory interpretation.

I shall not attempt a survey of all these positions. Instead, I will begin the discus-sion with a general and rough outline of the thesis I wish to examine here. In outlin-ing a position that favors deference to legislative intent, one which is at least initiallyplausible, I shall also be pointing out the kinds of obstacle such a thesis would haveto overcome, thus providing an effective framework for the subsequent discussion.

The kind of a plausible doctrine I have in mind here would comprise the fol-lowing general theses: first, it would hold that laws, at least in certain cases, areenacted with relatively specific intentions, and that this is a matter of fact which isdiscernible through an ordinary fact-finding procedure. Second, that in certaincases the presence of such a fact, namely, that the law was enacted with a certainintention, provides judges with a reason to decide the legal dispute in accordancewith the relevant legislative intent.

The characterization of a plausible version of intentionalism in terms of thesetwo theses aims at clarifying that intentionalism faces a dual task which is bothexplanatory and justificatory. First, intentionalism must face the kind of skepti-cism which argues that—as a matter of fact—there is no such thing as legislativeintent, at least not in any helpful sense. Second, intentionalism must answer thosewho claim that even if legislative intent were a discernible fact, it should not con-stitute a reason for judicial interpretations of statutes.

Each of these tasks comprises various sub-questions. At the descriptive level, theintentionalist must show that it is possible to identify both the ‘legislator’ whoseintentions are meant to count, and the kind of intentions which are potentiallyrelevant to statutory interpretation. (These two questions will be addressed in thenext two sections, respectively.) At the level of justification, there is, of course, thefirst and main question of why is it ever a good reason to defer to legislative intent,even if there is one. But in addition to that, two further questions arise: one regard-ing the scope of the doctrine, and the other, its alleged force. The first is the ques-tion of whether the doctrine’s applicability is confined to certain kinds of case, orapplies whenever a legislative intent bearing upon the issue at hand can be discov-ered. The second, the question of the doctrine’s force, is as follows: granted thatlegislative intent constitutes a reason for decision in a given case, how strong of areason is it? Should it replace all other, potentially conflicting, reasons for decision,only some of them, or none? How should it be weighed against such other, poten-tially conflicting, reasons for the decision—is it a very weak reason, binding uponjudges only in the absence of other good reasons for decision, or is it a very strongone, not easily overridden by other types of reason?

Thus, to reiterate, we can say that the question of justification comprises threemain issues: why should legislative intent be a reason for decision, in which cases,and to what extent? Needless to say, although these are conceptually separate ques-tions, their answers are likely to be intermixed in various ways, depending on theparticular doctrine espoused.

120 Legislative Intent and the Authority of Law

Finally, to complicate matters a bit further, it should be noted that the verynature of the justificatory question is itself subject to controversy. This is an issueI would like to address before going on to examine the other questions in detail.Both proponents and foes of intentionalism sometimes conduct their argumentsas if the issue is to be determined on the basis of considerations pertaining to theconcept of law. Others, denying this, contend that the issue can be resolved satisfactorily, only if it is first recognized as thoroughly dependent on moral andpolitical arguments. Both positions are confusing, however, as both are partlyright and partly wrong.

Intentionalism can be a matter which falls within the realm of law if, and to theextent that, some of the questions mentioned above are determinable, and deter-mined, by legal practice. In certain legal systems, for instance, the question ofwhose intentions count as the intentions of the legislator might be determined bylegal practice, in which case it is trivially a matter of law. Yet intentionalism can beclaimed to belong to the concept of law in a much stronger sense. It may be con-strued as a doctrine which claims that deference to legislative intent is always amatter of law, as deference to legislative intent forms part of what it is to follow thelaw. I hope it is evident from my arguments in the previous chapter that this is nota plausible view; I have argued there that the existence of easy cases is made possi-ble not by the fact that the legislator’s intentions are clear and decisive, but by thefact that rules can often be simply understood, and then applied, without themediation of interpretation. Hence, it will be presumed here that intentionalism,like any other interpretative strategy, pertains to the kind of reasons judges shouldrely upon when deciding hard cases; that is, when the issue is not settled by theexisting legal standards, and interpretation is required to determine the appropri-ate solution of the case.

This assumption about the role of intentionalism also clarifies why there are twopossible ways in which it can be a matter of moral and political argument. Grantedthat judicial decisions of hard cases often make a moral difference, proposing def-erence to legislative intent as a source of decision-making in such cases is, ipsofacto, morally significant. Yet it does not follow that the considerations capable ofsupporting intentionalism are necessarily moral ones. As they pertain to the rea-sons that judges should rely on when confronted with hard cases, such considera-tions are bound to be based on evaluative considerations of various kinds, moraland political ones possibly included. But they are not thus included because thejudicial decision makes a moral difference. We have already seen that considera-tions supporting interpretative strategies are bound to be sensitive to the purposesand values one finds embodied in the relevant enterprise. Thus the debate over thedesirability of intentionalism in law is bound to be affected by various evaluativeconsiderations. Whether these are primarily moral and political is something thatremains to be seen.

What is the Issue? 121

2. WHOSE INTENTIONS?

The argument over the role of authors’ intentions in interpretation is not, ofcourse, unique to law. Art critics, to take one familiar example, often debate a verysimilar point. Yet there is one general problem which is unique to law, and whichart critics are usually spared. I refer to the problem of identifying the author.Works of art, like most other objects of interpretation, are typically created by asingle ‘author’. Even if the historical identity of the author is in doubt, it is usuallythe case that there is such an author, and that it is a person to whom one canattribute intentions. On the other hand, statutory interpretation in a modern legalsystem presents a special problem in this respect, as ‘the legislator’ is often not asingle person, but a whole legislative body composed of numerous members.Hence the question: Can we attribute an intention to a group of people, oftennumbering several hundreds?2

Lawyers, in particular, would not find it difficult to answer this question, as theywould point to the fact that we often do attribute such intentions in similar situa-tions. For instance, we attribute intentions to corporate bodies, such as commer-cial corporations, trade unions, cities etc, on the basis of what can be called, theconcept of representative intentions. That is, by means of identifying certain indi-viduals whose intentions would count as the intentions of the corporate body itself.This does not involve a kind of fiction, as is sometimes suggested by lawyers, butrather a set of established rules or conventions which determine these matters. Weare vindicated in attributing intentions to the corporate body because rules orconventions determine that the intentions of certain individuals are considered—within certain established limits—as the intentions of the corporate body itself.Hence also, when these people act in their official capacity, they normally knowand take into account that they act on behalf of the corporate body.

It should be noted that rules or conventions have a twofold function here: bothof establishing the practice and of allowing for the identification of the particularinstances falling under it. That is, rules help us explain how actions and intentionscan be attributed to a corporate body at all, while also serving to identify the par-ticular instances of such actions and intentions of the corporate body. In otherwords, it is characteristic of the concept of representative intentions that the ruleswhich vindicate the attribution of intentions are constitutive of the practice. Thesituation here is no unlike other, more familiar instances, where certain actionsgain their social meaning, as it were, only on the basis of certain rules or conven-tions. To give one closely related example: numerous speech-acts—like issuing acommand, or uttering the words ‘I do’ in the appropriate circumstances of a mar-riage ceremony etc––would not have the social effects they do outside the rule or

2 I am ignoring an additional complication here: even with respect to a single legislator, it is notalways clear whether he has formed a certain intention in his official capacity or not. A legislator mighthold certain intentions, or rather hopes, unofficially, as it were. Can we say that in this case he has theintention that his intention not be taken into account by the courts?


convention governed practices of which they are parts. Hence each and every per-formance of such a speech-act involves an implicit invocation of the appropriateconventional practice which is taken to determine the social meaning of thespeech-act in question (that is, of course, apart from the conventions determiningthe literal meaning of the words used by the speaker).3 In a familiar sense, this istrue of legislation as well. The performance of certain actions counts as an act oflegislation if an only if these actions are carried out in accordance with (and as aninstance of following) certain rules or conventions. Hence, these rules or conven-tions must also determine whose actions are appropriate for the successfulperformance of an act of legislation and under what circumstances.

Unfortunately, however, at least in the common law legal systems, conventionsdo not extend so far as to determine whose intentions—amongst the various mem-bers of the legislative body—and in what combination, would count as the inten-tions of the legislative body itself.4 In this, legislative bodies are quite unlike mostother corporate bodies, where rules determine not only whose actions, but alsowhose intentions count as the intentions of the corporate body itself.5

Notably, most jurists seem to concede this fact.6 Some, however, tend to reachskeptical conclusions at this point. The skeptic concludes that since there are norule––or convention––governed practices of identifying the intentions of certainindividuals taken to represent the intentions of the legislative body, attributingintentions to the latter is bound to be a fiction, a myth. There are actually twoprevalent versions of this skeptical argument. As the more extreme one has it, legislative intent is a fiction due to conceptual considerations. The more moderateversion of skepticism holds that even if we had an idea of what it meant for a legislative body to have an intention, its actual existence and discoverabilitywould, at best, be a rare occasion.

Let us begin by taking a closer look at the more radical version of this skepticalstance. The following argument may be taken to be representative:

1. Intention is a mental predicate. It is only those possessing certain mental capacitieswho can be said to form intentions.

3 See Austin (1955). Notably, Austin seems to have maintained that all the speech-acts for which he coined the phrase ‘illocutionary acts’ are essentially conventional in this way. But Strawson’s (1964)critique makes it clear that only certain types of illocutionary act are essentially conventional, while theperformance of others involves no reliance on convention or rule-governed practices of any kind.

4 There is, of course, an underlying assumption that the actions of the legislators have been carriedout intentionally. But this is not the relevant sense of ‘intention’ here, as it only says that something wasnot done by chance, or under the influence of drugs etc. Needless to say, this is not the kind of inten-tion which might have any bearing on statutory interpretation.

5 Perhaps this is due to the fact that such rules would have to determine a hierarchical structurewithin the legislative body, something which is utterly opposed to our conception of representativedemocracy.

6 See MacCallum (1968); Brest (1980: 212), though, seems to suggest that those rules which deter-mine whose actions, and in what circumstances, count as an act of legislation, also determine whoseintentions count for the purposes of intentionalism. But I could not find any arguments in the textwhich could be taken to support this claim. On his recommendation to follow the majority view, seetext below.

Whose Intentions? 123

2. A group of people as such, as opposed to its individual members, does not possess amind; only individual people have the requisite mental capacities to form intentions.3. Unless there are determinate ways of identifying certain individuals whose intentionsrepresent the intentions of the group, no intention can be attributed to a group of people,as such.4. On the assumption that the conditions of (3) do not obtain in the case of legislativebodies, these cannot be said to have any intentions whatsoever.

There is nothing wrong with the first two premises of this argument. The conclusion,however, does not follow because premise 3 is actually false. To see this, we must dis-tinguish between the idea of a group-intention, which the skeptic rejects, and that ofshared intentions, which is the relevant concept here. The former is purportedly theintention of a group, organization etc, as such, which is somehow distinct from theintentions of any of its individual members. Presumably, the skeptic is opposed tothe ontological perplexities raised by the potential reference of this concept. But theidea of shared intentions involves no such ontological perplexities. Even if you are askeptic about the idea of group intentions, you cannot deny that it is possible formany people to have basically the same kind of intentions (or at least very similarones). Arguably, this is often what we mean when we attribute intentions to a groupof people (that is, in a non-representative manner). Consider, for example, the fol-lowing kind of statements: ‘The “Red Sox” are desperate to win tomorrow’s game’;‘The Palestinians want to have a state of their own’; ‘The Dada movement strove tochallenge some of the most established conventions of European art’; etc. In suchcases, what we basically say is that a certain intention or aspiration or such is sharedby all, or perhaps most, members of a certain group of people.

But this is not so simple. Attributing shared intentions to a group is not a purelyquantitative matter of counting, as it were, how many members of a given grouphappen to share a certain intention. An additional element must obtain, namely,that there is a non-accidental connection between the identification of the groupas a group of a certain kind, and the pertinent kind of intention. It is natural, forexample, to speak of a nation aspiring to independence, as those who share thepertinent intention (and, perhaps, those who oppose it) also share the expectationthat this intention be held by their group, as such. The said intention is significantfor them precisely (though not only) because they expect it to be shared by othermembers of the group, while even expecting membership in the group to beidentified, in part, in terms of this and similar intentions.7 Had we discovered, forinstance, that the very same people also happen to share an extraordinary fondnessfor strawberries, we still would not say anything like, ‘It is the nation’s intention toeat great quantities of strawberries.’ The affection for strawberries, even if it isshared by all the members of a certain nation, has nothing to do with theidentification of the group as a nation. Only when the connection between thekind of intention in question and the nature of the group is somehow natural, orrelevant, that an attribution of a shared group intention makes sense.

7 Cf Raz (1986b: 208).


Now, let us return to law. Considerations mentioned so far seem to supportwhat is usually called the majority model of legislative intent (cf MacCallum 1968;Brest 1980). On the assumption that there is no particular reason why legislatorscannot share certain intentions, it would be natural to maintain that legislativeintent is present when most of the legislators share a particular intention vis-à-visa law they have enacted. This leaves no place for doubt that perhaps the intentionis only accidental to the identification of the legislative body as such. After all, it isthe business of legislators to enact laws. Furthermore, at least within the presentframework of our constitutional practices, the majority model seems particularlysuitable. It is in accord with the rules which determine whose actions, and in whatcombination, count as an act of legislation. Ordinarily, this has to do with a major-ity vote. Thus, if it is normally the case that the actions of the majority are sufficientfor the successful enactment of a law, it seems equally sufficient that the requisiteintention be held by the majority of legislators (MacCallum 1968: 263).

Hence, the majority model seems to offer a very plausible construct allowing forthe attribution of intentions to the legislature, being an instance of one of the mostcommon modes of attributing intentions to groups; that is, employing the conceptof shared intentions. It is not surprising, however, that several difficulties arisewith respect to the applicability of this model. To begin with, as has often beenpointed out,8 at times there is no majority view—at least not in any compellingsense—on the particular issue bearing upon the case before the court. Just as legislators can share intentions, they can also have conflicting and incompatibleones vis-à-vis a law they have enacted, each perhaps hoping (though often with noillusions) that his or her intention will eventually be realized in practice.

More problematically, the majority model is ambiguous. It is unclear whetherthe majority which it is based on comprises those who voted for or against the bill,or those who share an intention with respect to the particular issue at hand. Thisambiguity is sometimes difficult to resolve. Consider the following example: sup-pose the issue before the court is whether or not a certain statute, R, applies to thecase in question, say x. Let us assume that there are 100 members of parliament,60 of whom voted in favor of R, and 40 of whom opposed it. Let us assume thatthe following facts are known: of the 60 members of parliament who supported thebill, 30 did so (partly or mainly?!) because they were convinced that R would applyto x, while 35 of those who opposed the bill did so because they thought the same,namely, that R would apply to x. Thus, we have a majority of members of parlia-ment who thought that R would be taken to apply to x. But we also know that thisis not the majority who would support the bill thus understood. Suffice it to saythat in such cases there is a strong inclination to admit that either construal of themajority model would be utterly inadequate. Moreover, I do not believe that anysingle criterion is capable of removing all such cases of the ambiguity.

Nevertheless, the conclusion which emerges so far should not be overstated.True, it is sometimes embarrassingly difficult to answer the question of just whose

8 See eg Dworkin (1985: 47).

Whose Intentions? 125

intentions count. In such cases—and in so many others as we shall see shortly—the appropriate conclusion should be that the legislature had no particular inten-tion with respect to the issues bearing on the case before the court. But it would bea great distortion to maintain that this is always the case. Suggesting that there arenever, or almost never, cases where the majority of legislators share a certain inten-tion vis-à-vis a law they have enacted would render the phenomenon of legislationa rather mysterious achievement. After all, legislation is a complex political actionwhich strives to bring about a certain change in the normative fabric of the law. Itis the kind of action which is done with a purpose in sight, striving to achievesomething. The fact that legislation in legislative assemblies is a complex and con-certed action involving elaborate procedures does not undermine this simple fact.On the contrary: Unless we assume that the legislators have a pretty good sense ofwhat it is that they strive to achieve by enacting a law, it would be very difficult tounderstand how they manage to achieve the act of legislation at all. A group ofpeople who do not sufficiently share certain intentions would normally find it verydifficult to achieve the kind of concerted action which is required in passing a law. Let me conclude this section with the appropriate caution: the conceptual doubtsabout the possibility of ascribing intentions to the legislature do not seem to bewell founded. However, it still remains to be explored whether the kind of inten-tions which we are likely to discover would be helpful in statutory interpretation.An attempt to provide some answers to this question forms the topic of the nextsection.

3. WHAT KIND OF INTENTIONS?

Most of the non-trivial actions we perform are accompanied by a variety of inten-tions. If I decide to sell my old car, for example, it could be because I have a desireto buy a new one, and because I have promised my wife that I will no longer drivethis old and unsafe car, and perhaps because I like change for its own sake.Sometimes such intentions combine to explain an action and motivate it, at othertimes, they may be quite separate and each one of them sufficient to explain ormotivate the action in itself. A similar situation must be present in the case of leg-islation as well. Such a complex action as passing a law would often be accompan-ied by a whole range of intentions, hopes, motives, expectations and the like. Andthis brings up a whole array of difficult questions: Which intentions are potentiallyrelevant and why? Are some of these legally relevant intentions more importantthan others? How does one cope with the cases where various intentions are inconflict or otherwise incoherent?9

9 Dworkin (1985: 52–54) rightly contends that one cannot answer these questions by relying on theintentions of the legislators themselves. Even if the legislators have an ‘interpretive intention’ (asDworkin calls it) which consists in their intention with respect to the kind of intentions they intend tobe relevant or dominant, this cannot be taken to solve any problem. An attempt to rely upon the inter-pretative intentions would only beg the question, ‘Why are these interpretative intentions relevant?’


Before I venture to suggest some answers to these questions, let me emphasizethat any classification of the various intentions with which a given act is being per-formed is necessarily limited and partial, as the possibilities of placing the dividinglines are almost endless. The distinctions must thus be guided by certain assump-tions about theoretical relevance. In our case, they must be sensitive to the reasonsone would have for assigning legal significance to the various types of intention.10

Bearing this qualification in mind, let me suggest the following distinction. At themost abstract level, it is useful to distinguish between what the legislator aims to achieve (or avoid) by enacting the law, and her thoughts (or assumptions,expectations, etc) about its proper application.11 I will consider each of these broadcategories separately.

3.1 Aims and Further Intentions

When we ask ourselves what it is that the legislator12 sought to achieve by enact-ing the law, we will always find that certain purposes are manifest in the languageof the law itself, as a matter of logic, while others, though they exist, are not.Consider, once again, the ‘No vehicles in the park’ rule. Surely it must have beenone of the intentions of the legislator that if anything is a vehicle it should not enterthe park. The legislator cannot deny such an intention without breaching the rulesof language or logic, or what speech-act theorists call the condition of sincerity.13

Admittedly, this is a rather trivial point, but trivialities sometimes tend to be for-gotten, or muddled.14

Apart from the aims which are manifest in the language of the law itself, the leg-islators are likely to have had a variety of, what I shall call further intentions,15 inenacting the law. Thus, to revert to our example, the legislator might have enactedthe law in order to enhance the safety of people who use the park; to reduce the levelof pollution in the vicinity; to protect the safety of squirrels in the park; and, let usalso presume, to enhance his chances of winning the forthcoming local elections.

10 For this reason, it would also be a mistake in the present context to attach too much weight to theanalysis of the concept of intention, and its related notions, like motive, desire, hope, expectation, pur-pose etc.

11 This distinction, though in various forms, has been long recognized. See MacCallum (1968: 237).12 For the sake of simplicity, I will mostly talk about a single legislator in this section, assuming that

the multiplicity of legislators should not alter any of the basic points made here. 13 See Austin (1955: 15); Searle (1969: 60).14 Dworkin’s distinction between abstract and concrete intentions is a good example of how this

triviality can be muddled. His notion of the abstract intention stands for the intention which is mani-fest in the law itself, and his notion of the concrete intention draws upon the legislator’s thoughts aboutthe proper application of the words used in the statute, which I shall dwell on in some detail below. Theterminology would have been innocuous, had Dworkin not further maintained that the difference con-sists in different ‘levels of abstraction’ (1985: 48). This was bound to yield unnecessary questions eg‘Are there intermediary cases between the two?’ ‘Is the distinction a matter of fact or a question of the-oretical convenience?’ and the like. I believe that the following discussion will show this to be asuperfluous complication.

15 The terminology is borrowed from Moore (1985: 344). On the notion of further intentions inspeech-acts in general, see Strawson (1964: 161–63).

What Kind of Intentions? 127

There are three points that I wish to emphasize about further intentions. First,it should be realized that hardly any act of legislation is performed without anysuch further intentions whatsoever.16 Of course it is possible to enact a law with-out having any idea why such a law is required, but we may hope that this does nothappen very often.

Second, it is often difficult to distinguish the further intentions with which anact has been performed from the agent’s motive in performing it. Admittedly,motive is an extremely problematic concept,17 and I cannot explore its variousmeanings here. Suffice it to say that there is often a substantial overlap betweenmotives and further intentions. An agent may, for instance, be motivated by desirefor revenge, while at the same time it may be the case that revenge was what thisagent strove to achieve by his action. Likewise, certain moral convictions the leg-islator holds may explain both his motive in enacting a given law, and what it wasthat he strove to achieve by it. But this is not always the case. Furthermore, thereare motives which do not figure in any proper description of what the legislatorsought to achieve by enacting the law (that is, in terms of further intentions).These are typically motives that the legislator is not (fully) aware of. The Marxistnotion of ‘class-consciousness’ is often given as an example in this context.18 Ananalysis of such hidden motives and their potential role in legislation is an inter-esting topic in its own right, but it has little bearing on our present concerns. Itwould be quite extraordinary if intentionalism were taken to extend to such hidden motives as well. In any case, I shall not dwell on this possibility.

The third, and perhaps most problematic point, stems from the distinction thatwe might wish to draw between further intentions which are legally relevant, andthose which are not. It might be a good idea, for example, to enhance the safety ofpeople who use the park, while protecting the squirrels may not be such a goodidea. But if we think that there is any legal relevance to further intentions, bothwould seem to be potentially relevant. On the other hand, the legislator’s intentionof making himself more popular by enacting this law, is a kind of intention which,I take it, even enthusiastic supporters of intentionalism would be very reluctant totake into account. Is there any sense in which such intentions are not legally relevant, as opposed to just being morally problematic?

It is not always as easy to recognize the difference between relevant and irrele-vant intentions as this example might be taken to suggest. It is even more difficultto specify any general guidelines according to which such a distinction could besubstantiated. In particular, the main question is whether we can come up with acriterion which is independent of the content of the particular intentions in ques-

16 There is one general exception to this: when the intention which is manifest in the language of thelaw itself is held by the legislator to stand for an ultimate purpose, in which case the further intentionis identical, as it were, with the intention which is manifest in the language of the law itself. Such lawsare, however, quite rare.

17 Cf Anscombe (1956).18 For a discussion of this point in the context of intentionalism in historical studies in general, see

eg K Graham, ‘How Do Illocutionary Descriptions Explain?’, in Tully (1988).


tion, or will the line eventually be drawn only on the basis of moral and politicalconsiderations delineating a sphere of legitimate intentions with which lawsshould be enacted? There is perhaps at least a partial content-independent criter-ion, pertaining to the kind of speech-act performed. Certain types of speech-act,such as insinuating, deceiving, showing off etc, have the rather unique feature thatthe speaker’s further intention is essentially non-avowable; rendering it explicitwould be self-defeating. The whole point of insinuating, for instance, is that thehearer suspects, but only suspects, the intention to induce, for example, a certainbelief. Once this intention is rendered explicit, the speech-act cannot remain oneof insinuating (Strawson 1964: 163). Similarly, when it is one of the intentions ofthe speaker to use a speech-act for purposes of manipulation, it is his intent thatthe former intention remains unrecognized by the hearer.

With due caution, this can be applied to our problem as well. It may serve as asufficient (but not necessary) condition for the identification of further intentionswhich one would initially be reluctant to take into account, that the legislator him-self is most likely to disavow them. More precisely, in such cases it is not part ofthe legislator’s intention to secure the effect he strives to achieve through others’recognition of his intention to secure it. On the contrary, there is a strong elementof self-defeat in rendering such intentions explicit. But of course, this is only a par-tial criterion, which will often require supplementation by other, primarily moral,considerations.

3.2 Application Intentions

Apart from their various aims in enacting a given law, legislators often have cer-tain intentions or expectations as to the proper application of the law they haveenacted. Let us term these the legislators’ application intentions. Thus, to take atypical example, consider the question of whether or not the ‘No vehicles in thepark’ rule also applies to bicycles. The following possibilities exist:

1. It is possible that the legislator has not given the question any thought at all; it simplydid not occur to his mind.2. The legislator may have thought about the question, but either failed to make up hismind or intended to delegate the decision to the courts, which practically amounts to thesame thing.3. Finally, there is the possibility that the legislator had a determinate intention that therule should—or should not—apply to bicycles as well.19

Needless to say, the plausibility of intentionalism with respect to applicationintentions derives from the existence of the kind of intentions designated byoption (3), whereby the legislator has had a determinate intention with respect to

19 Note that the phrase ‘not intending that x’ is ambiguous between having no intention about x,and intending that not x. The former is an instance of either (1) or (2) above, and the latter is aninstance of (3).


the issue bearing on the case before the court. Yet as the situations described in theformer two options are not all that rare, advocates of intentionalism have oftenattempted to define their doctrine in such a way as to encompass situations ofthese types as well. There are two common views which aim to overcome the lackof a determinate legislative intent, as described in (1) and (2). The first is based onwhat might be called the idea of hypothetical intention: In situations such as these,it is argued, the judge must ask herself what it is that the legislator would havedecided had he been directly confronted with the issue and a decision required ofhim. But how would one go about answering such a question? After all, it wouldprove extremely difficult to answer such a counterfactual question even withrespect to one’s own intentions. Furthermore, it is far from clear what kind of factsshould be taken into account: should judges take into account only the explicitlystated aims of the legislator, or various presumed aims as well? Should the judgego to the trouble of finding out the legislator’s personal inclinations too? Imagine,for instance, the judge saying something like this: ‘I know this legislator, and I happen to know that he takes a ride every morning in the park.’ Is this the kind offact judges should be allowed to consider? And if not, how is one to tell what thelegislator would have intended? In short, the idea of a hypothetical intention isquite unhelpful, to say the least.

The second alternative sometimes suggested in this context is a recommenda-tion to judges to ask themselves what it is that they would have intended had theybeen in the legislator’s place. This, however, is ambiguous: either it is tantamountto the hypothetical-intention thesis, in which case we are back with the same per-plexities, or it is just an awkward way of saying that the judge should decide thecase according to those kind of considerations which are expected of legislators.This, admittedly, is not a vacuous suggestion. It can be contrasted with other,potentially conflicting grounds for judicial reasoning, which are guided by the pre-sumption that judges, ex officio, should adopt a point of view which differs fromthat of the legislature. But for our present purposes, this thesis is irrelevant, as thekind of reasoning suggested to judges on this option is indifferent to the actualintentions of the legislator. If I have to decide what it is that I would have donewere I in place of A, there is nothing I need to know about the actual intentions ofA. Hence also, according to the suggestion under consideration here, the correctdecision can easily be at odds with the actual intentions of the legislator. It is thusadvisable not to discuss this suggestion under the title of ‘intentionalism’ at all. Inany case, I shall assume from now on that application intentions are potentiallyrelevant only when, as a matter of fact, the legislator has had a determinate inten-tion bearing on the issue before the court, and my discussion will be confined tothis option.

There are two further points to be noticed about application intentions. First, they should not be confused with communication intentions.20 An act of legislation, like any other speech-act, must be performed on the basis of an under-

20 On the definition of communication intentions, see Chapter 2, sect 2.


standing that certain conventions and other states of affairs obtain. These neces-sarily include linguistic conventions which determine the meaning of the utterancein the given situation. And, of course, they also include a great deal of backgroundknowledge—referring to conventions and other states of affairs—allowing for thesuccessful performance of an act of communication. Thus, when a speaker expectsto be understood, she must expect the hearer to share the pertinent knowledge ofthese conventions and states of affairs and be aware of the speaker’s intention torely on them. But such expectations can, of course, be frustrated, and this is anothersense in which we can speak of the potential frustration of the legislators’ inten-tions. It should be realized, however, that in this case the frustration of the legisla-tive intent is a standard instance of misunderstanding, and as such, has nothing todo with the question under consideration, that is of the appropriate interpretativestrategy judges should adopt in the resolution of hard cases. As I have repeatedlyargued in the previous chapters, understanding an act of communication, andinterpreting it, are two separate things which ought not to be confused.

The second, and more important point, is this: between the legislators’ applica-tion and further intentions (or the aims which are manifest in the law), means-ends relationship of sorts would typically have to obtain. Suppose a statute, R, was meant to achieve a certain purpose, say P. The application intention of the leg-islator that R should be taken to apply to x, for instance, would typically be basedon his assumption that R thus applied is more likely to achieve P. Of course thelegislator can be mistaken (or insincere), and as a matter of fact, applying R to xmight be inconsistent with the intention of achieving P. But in this case, either thelegislator would have to admit that his application intentions were inadequate,being likely to defeat his own purposes in enacting the law, and hence betterignored; or else he would have to admit that P was not an adequate formulation ofhis further intentions. In either case, however, the application intentions ought tobe taken into account—from the legislator’s own point of view—only if, and to theextent that, their realization is likely to enhance his further intentions.

It should be emphasized that this is not a matter of the intensity with which thelegislator holds his various intentions, as it were, but a matter of logic. It very wellmight be the case that the legislator has a clearer or stronger sense that R should beinterpreted to apply to x than any of his further intentions in enacting R. But inany case, his application intention must be indicative of his further intentions. Thelegislator cannot maintain, without being incoherent, that his application inten-tions ought to be assigned precedence to his further intentions. That wouldamount to the absurdity that when the means are inappropriate for achieving theends, one should nevertheless stick to the means. On the other hand, when the fur-ther intentions are assigned precedence over the application intentions with whichthey are inconsistent, no logical incoherence is attributed to the legislator, but onlya factual mistake, as it were.21

21 To be sure, legislative intent may turn out to be incoherent in many other ways than the onedescribed here, eg when the legislator’s further intentions or application intentions are internallyinconsistent. However, as Dworkin rightly argues (1985: 50–51) in such cases it would be impractical


To sum up so far: I have distinguished between three main types of intentionthat are potentially relevant from the legal point of view. Apart from the intentionsthat are manifest in the language of the law itself, legislators typically have furtherintentions in enacting a given law, and sometimes they would have certain inten-tions bearing on its proper application. I have also suggested that some of thesefurther intentions may be essentially non-avowable, in which case they are rendered initially irrelevant. Finally, I have pointed out that considerations of con-sistency require that the legislator’s application intentions be taken into accountonly if, and to the extent that, they are in accord with his further intentions.

4. WHY SHOULD INTENTIONS COUNT?

At long last, we arrived to the main normative question about the potential rele-vance of legislative intent in statutory interpretation, namely, the question ofwhether such intentions ought to be taken into account or not. That is, we mustnow turn to the question of the possible justifications of intentionalism. However,before taking up this task, two clarifications are called for.

First, I must emphasize that I shall not be concerned here with constitutionalinterpretation, nor do I intend my arguments to have any straightforward appli-cation to the latter. Constitutional interpretation will be discussed in the nextchapter, and there we shall see that the interpretative problems and the moral con-cerns are quite different and thus yield different conclusions.

The second clarification is this: considering the various justifications of intentionalism, I shall be assuming that there are no conventions, followed by thecommunity at large, which comprise a general practice of reliance on legislativeintent22 for purposes of interpreting statutes. This assumption ought to be empha-sized for the following reason: had there been such a conventional practice, judgeswould have had a reason to respect it on grounds of the ideal of protected expec-tations. If the parties to a legal dispute can show that they had a justified expecta-tion that the relevant statute be interpreted according to the legislators’ intentions(assuming the legislator had had such an intention bearing on the case), judgeswould normally be obliged—other things being equal—to respect these expecta-tions. I shall assume, however, that at least in the common law legal systems thereare no such conventional practices, that is, people do not normally expect statutesto be interpreted by the courts primarily according to the legislature’s intentions.23

or even impossible to decide which intentions ought to be regarded as the dominant ones. Hence insuch cases, the practical result is that the legislator had no intention with respect to the pertinent issue,as if she had not made up her mind.

22 For obvious reasons, I shall not be concerned with those intentions which are manifest in the lan-guage of the law itself. Generally, the frustration of such intentions would result in the breach of therule in question. And in any case, the intentions which are manifest in the law itself are of little help tojudges faced with hard cases.

23 Even within common law systems there are differences in the conventions of statutory interpre-tation with respect to deference to legislative intent. For example, the US judiciary is much moreinclined to look at legislative intent than its British counterpart.


How can intentionalism be justified, then, if it is not supported by legal prac-tice? The most popular line of thought, one which, I suspect, many lawyers, andperhaps even more laymen, find appealing, is the argument based on democraticprinciples. It is often stressed in this context that since judges are not democrati-cally elected or politically accountable for their decisions, they ought to respect thechoices of the elected representatives of the people.

One can readily concede that judges ought to respect the political choices ofpeople’s elected representatives. But this only begs the question: what is it that therepresentatives have democratically chosen? Opponents of intentionalism canplausibly argue that it is not accidental to democratic procedures that they resultin authoritative texts, that is, in statutes. One of the main objectives motivatingparliamentary debates to culminate in a vote on a particular text, is to establish, asprecisely as possible, what it is that, agreed upon, is sufficient to gain majority sup-port (Ely 1980: 17). Hence, at most, respect for democratic procedures entails thatjudges should apply the law whenever this is possible. Perhaps it also entails thatthe final say on legal matters should rest in the hands of the legislative bodies. This,however, falls far short of admitting to the intentionalist’s conclusions.

I suspect, however, that most of those who rely on the argument from democ-racy have a different thought in mind. Judges ought to respect the intentions of thelegislature, they think, because such intentions are in line with the wishes of themajority. It is this principle of majority rule that often motivates intentionalism.But this line of thought is even less promising than the previous one. To the extentthat judges ought to respect the wishes of the majority (and of course I am notassuming here that they ought to do so), they would be better to consult opinionpolls, rather than the intentions of legislators. After all, there is no assurance thatthe legislators’ intentions adequately reflect majority opinion, particularly whenthe law is relatively old and may have been enacted in a very different social-political environment than the one which prevails during its interpretation by thecourt.

In other words, even if one could make sense of the argument from democracy,its applicability to any but contemporary laws would be utterly problematic.Suppose, for example, that when a statute, R, was enacted, say ten years ago, themajority’s intention was that R should apply to x. Suppose further, that the con-stellation of the legislators’ intention has changed since, and the majority nowholds the opposite, namely, that R should not apply to x. Which constellation ofthe legislators’ intention should the judge follow according to the democraticprinciple, the past or the present one? Relying on the principle of majority rulewould force one to choose the contemporary constellation of the legislators’ inten-tions as the one which should be followed. After all, what is the point in respect-ing the majority view if it is no longer the majority view? But this is a perplexingresult. It entails that intentionalism is not limited to the legislators’ intentions inenacting the law, but extends to intentions which have not been expressed in anyinstitutionalized way. Needless to say, considerations belonging to the concept oflaw render this option unacceptable. The legislators’ thoughts about how their

Why Should Intentions Count? 133

subjects ought to behave are legally irrelevant, unless they have been expressed,that is, communicated, in one of the established ways recognized by the legal prac-tice. Thus, if intentionalism is to make any sense at all, it must be confined to theoriginal intentions of those who enacted the law. But, as we have seen, wheneverthe latter is not in accord with the contemporary constellation of the legislators’intentions, the argument from democracy renders intentionalism quite unattrac-tive on its own terms.24

Let me turn now to a different line of thought which I find much more promis-ing. Generally, I will suggest that the primary way of justifying reasons for com-plying with the intentions of the legislator involves the very same considerationswhich are taken to vindicate compliance with an authority’s directives in the firstplace. In other words, I will argue that the justification of deference to legislativeintent must be derived from the conditions which can be taken to establish thatone person should be acknowledged to have authority over another. These condi-tions have been discussed in Chapter 6, and I will not repeat them here. The present argument is confined to showing that the same analysis, based on Raz’sconception of the concept of authority, can be employed to elucidate the condi-tions under which it would be reasonable to defer to the authority’s intentionswhen assessing how to interpret his directives.

Generally, as we have seen, the legitimacy of a practical authority derives from itsmediating role; that is, an authority should be acknowledged as a legitimate one if,and to the extent that, its alleged subjects are likely to comply better with the reasonsfor action which apply to them by following the authority’s directives than by tryingto figure out or act on those reasons by themselves. This is basically what Raz calls the‘normal justification thesis’. It is crucial to note, however, that this normaljustification thesis is in fact compound, consisting of two distinct types ofjustification. In some cases, compliance with the authority’s directives can only bejustified on the basis of the assumption that the authority is likely to have betteraccess to the right reasons bearing on the issue than its alleged subjects. In otherwords, the assumption here is that the authority knows better what ought to be done,as it were. I will call this the expertise branch of the normal justification thesis.

Relative expertise, however, is not the only way to meet the conditions of thenormal justification thesis. At other occasions, it is enough to show that theauthority is better situated than its alleged subjects to make the pertinent decision;that is, without thus being committed to the presumption that there are certainreasons for action, whose identification and ascertainment are more accessible tothe persons in authority. By and large, this is the typical kind of justification avail-able when the function of the authoritative resolution is to solve collective actionproblems, such as large-scale coordination problems, prisoner’s dilemma situa-tions, and such. Roughly, then, I will presume that a problem of collective actionarises whenever the fact of having an established and enforceable decision is moreimportant (morally or otherwise) than the particulars of the actual decision taken

24 Cf Gans (1988: 105).


(that is, within a certain, reasonable, range of options).25 In situations such asthese, the legitimacy of the authority in question derives from its ability to solvethe collective action problem, an ability which may not involve expertise of anykind. This latter point is of crucial importance as it shows that the legitimacy ofauthorities to issue directives may be acknowledged even with respect to issues, orfields of conduct, where no possibility of expertise is recognized. (More on thispoint later.)

This distinction, between the expertise and the collective action theses, bearsupon the plausibility of intentionalism as follows: the case for deferring to theauthority’s intentions—when its directives require interpretation—is typicallymuch stronger in the case of expertise than in the case of collective action. Whenone’s reasons for acknowledging the authority of another are based on the assump-tion that the authority is more likely to have a better access to the right reasons bear-ing on the pertinent issue, it would typically be most sensible to take the authority’sintentions into account when her directives require interpretation. An example canillustrate this point. Suppose one acknowledges the authority of one’s physician,considering her the best available expert on the relevant medical problems. Now,suppose that the doctor’s medical prescription is ambiguous, as there happen to betwo different medicines which fit it. Under normal circumstances, attempting toclarify the physician’s intention would be the most sensible thing to do.

On the other hand, if one’s reasons for complying with an authority’s directivesare based on the collective action thesis, there is no need to presume that the per-son in authority is an expert in the pertinent field. Hence there does not seem tobe any particular reason to defer to the authority’s intentions in order to solveinterpretative questions as, ex hypothesi, the person in authority was not presumedto have a better access than the subjects themselves to the reasons on which theyshould act.

Admittedly, in both cases, the task of filling in the gaps left by the need to inter-pret the authority’s directives can be carried out by someone else who would thushave to be acknowledged as yet another authority. But there is this crucial differ-ence: in the case of expertise, there would be reason to confer the discretion on thesecond authority only if, and to the extent that, the latter is believed to have at leastequal expertise in the pertinent issue. On the other hand, an authority that was notpresumed initially to possess any particular expertise on the question under consideration can be replaced by anyone else whose position enables him to solvethe problem equally well.

Thus, when the expertise justification thesis applies, there is reason to take theauthority’s intentions into account when assessing how to interpret the latter’sdirectives. But even in this case, the reasons do not carry absolute weight, as itwere. When contrasted with other, competing considerations (for instance, theadvice of another expert), their relative weight would have to be sensitive to the

25 It is not part of my argument here that all collective action problems, as such, require an author-itative resolution; many collective action problems are efficiently settled by other means.


degree of likelihood that the authority indeed has better access to the right reasonsbearing on the particular issue. The more reason one has to believe that theauthority knows better what ought to be done in the circumstances, the moreweight one would attach to the authority’s pertinent intentions. Furthermore, onecan see that deference to the authority’s intentions should replace other reasons fordecision only within the bounds of expertise considerations. One’s reasons forcomplying with the judgments of one’s physician are confined to those consider-ations which apply to the question of the most appropriate medical treatment.They should not include reasons which are not based on expertise, like, forinstance, the reasons involved in a decision not to take the treatment at all, or tocommit suicide instead.

Now, it is being assumed here that the alleged legitimacy of the legal authoritiesderives from both sources. According to this assumption, legislatures exerciseboth types of authority, depending on various factors, like the particular realm ofconduct, the nature of the decisions required, the kind of evidence available to thelegislature, etc. Sometimes the legitimacy of their directives derives from theexpertise justification thesis,26 and at other times, it derives from the collectiveaction justification thesis. And quite often, it may derive from both. A given statuemay have certain aspects which are justified from the perspective of the expertisebranch of the normal justification thesis, and other aspects may be justifiedbecause they constitute a solution to a collective action problem.

Thus, the conclusion I am driving at should be apparent by now. The inten-tionalist’s thesis gains its plausibility from the availability of the expertisejustification thesis, and its applicability is confined to those cases. When the legit-imacy of the legislator’s authority—in a certain realm of conduct—derives fromthe collective action justification thesis, judges have no particular reason to deferto the legislators intentions in filling in the gaps arising from the need to interprettheir directives. This task can be performed equally well by the judges themselves,exercising their own authoritative role.27 We have also seen that when there is rea-son to defer to the legislators intentions, the relative weight assigned to this reasonmust depend on the degree of relative expertise that the legislators are presumedto possess. Furthermore, this reason should not replace other reasons if the latterare not within the confines of expertise considerations.

At this point, though, one might raise an objection which runs along the fol-lowing lines. Consider the role of authorities in the solution of collective actionproblems. Let us presume that potential litigants have a justified interest in avoid-ing litigation as far as possible, and also that they have a justified interest in the predictability of the judicial decisions in case these are eventually required. Let usfurther assume that the dispute concerns the interpretation of a statute and thatthere is a legislative intent bearing on the case. Now, would the parties concerned

26 I should be kept in mind that the relevant legislature is often an administrative agency (like theUS FDA, or EPA etc) and those tend to possess a considerable amount of expertise.

27 It should be remembered that judges themselves act in an authoritative capacity, and that in thecase of higher courts, this authority often equals that of the legislators.


not be better off relying on the relevant legislative intent when they plan their con-duct? And, if the case eventually reaches the court, would the judges not have astrong reason to respect such expectations? In other words, it seems that in casesstemming from collective action problems, that is, within the bounds of the col-lective action justification thesis, intentionalism can be justified through referenceto the values of stability and predictability.

The problem with this argument is quite simple: it is based on factual assump-tions which do not happen to obtain. Stability and predictability require at leasttwo conditions, neither of which obtains in the case of legislative intent. First, thatthere be an actual practice, conventionally entrenched, giving effect to a particularway of solving problems. Second, and perhaps more essential, that the relevantsources of decision-making be easily accessible to the parties concerned. As to thefirst condition, I have already mentioned that in the common law systems, peopledo not generally expect that statutes will be interpreted, at least not primarily,according to the intentionalist doctrine.

The presence of the second condition is even more doubtful: legislative intent isnot easily accessible and ascertainable to the public at large or even, in fact, to mostlawyers. In order to find out the relevant legislative intent, one typically needs agreat deal of material on the legislative history of the statute; not to mention all theobstacles to extracting the legislative intent from the historical material, even if itis available. Hence the suggestion that courts should interpret statutes by defer-ence to legislative intent, because this would enhance the stability and predictabil-ity of the law, is one which is not supported by the facts.

Let us return to the thesis which I have advocated so far. One important impli-cation of this thesis consists in the fact that internationalism is not a plausibleoption with respect to those domains in which it is not possible to recognize exper-tise. This is quite important because it is arguable that expertise is not available inthe realm of morality. Since many acts of legislation are based on moral reasonsand purport to affect moral conduct, the practical significance of this problem isconsiderable. But why should we think that expertise is not applicable to the moraldomain? There actually several reasons for denying the possibility of expertise inthe realm of morality, none of which should rely on skepticism. On the contrary,those who think that there are moral truths, or that morality is an objectivedomain, would also tend to maintain that basic moral principles are epistemicallytransparent, just there to be seen, as it were, by anyone who cares to see. There isjust nothing more to be known about morality than that which is clarified by reasoning from true premises. Another line of thought which leads to the sameconclusion would be premised on the assumption that expertise requires the pos-sibility of some verification procedures. Unless some people can be claimed tohave better access to certain procedures which can be taken to verify the truths ina given domain, there is no reason to hold anyone an expert in the relevant field.Since morality is the kind of domain which admits of no verification procedures,there is no possibility of expertise there. Finally, it could be argued that the idea ofexpertise in morality is also morally objectionable as it would be inconsistent with


the basic demands of moral autonomy. People are morally responsible for theirchoices and actions only if they are based on their own moral deliberation and eth-ical choices. So there seem to be host of epistemic and ethical considerations whichcount against the possibility of recognizing expertise in the moral domain.Therefore, it seems that laws which are based on moral reasons cannot be associ-ated with the expertise branch of the normal justification thesis, and thus wouldnot call for any particular deference to legislative intent.

We should be careful here. Even those who deny the possibility of expertise inmorality can acknowledge the legitimacy of an authority in issuing directives onmatters of moral significance. The legitimacy derives from the fact that even in themoral domain, often it is more important to have an established and enforceableauthoritative decision than getting the details of the decision right. In other words,even in moral matters there is often a need to solve collective action problems andan authoritative decision might be justified on that ground. Hence it should berealized that there is no contradiction in acknowledging the legitimacy of anauthority in issuing directives on certain matters of moral significance, while at thesame time denying the possibility of expertise in morality, and therefore also of theapplicability of intentionalism with respect to these matters. That is so, becauseauthoritative resolutions on certain issues of moral significance can be justified onthe basis of the collective action thesis. For example, it is quite important to havea definition in the criminal code of what constitutes ‘theft’, and this is basically amoral question. But it may be more important for us to have an authoritativedefinition of ‘theft’ in the criminal code, than getting the details of the definitionright (within a certain range of acceptable options, of course).

I would like to mention some further implications of the thesis advocated here,even if only briefly. To begin with, once intentionalism is advocated on thegrounds of the expertise justification thesis, we can see why judges should some-times take account of preparatory material on the basis of which the law has beenenacted, and not merely of the legislators’ intentions. By the former I mean, forexample, the opinions expressed in various commissions, the intentions ofofficials and experts who participated in the drafting process, and the like. Withinthe bounds of the expertise justification thesis, the opinions of these people, andthe evidence they have relied upon, can shed light on the considerations bearingon the case before the court, and serve as valuable sources of decision-making.That is, both independently, manifesting expertise, and also as an indication as tothe level of expertise the legislators are presumed to have. Such material enablesjudges to substantiate their assumptions on the legislators’ expertise, and accord-ingly, to attach greater or lesser weight to their pertinent intentions.

Similar considerations pertain to the dimension of time: the older the law is, theless attractive intentionalism becomes. The reasons for this are obvious: expertisechanges over time, due to the accumulation of experience and the available evidence, to progress in various sciences, and the like. Thus the natural conclusion,that the older a law is the more suspicious one has to be of the relevance of the legislators’ intentions.


Finally, the expertise justification thesis makes allowance for a certain discrim-ination between the legislators’ further and application intentions: typically, thelatter would have to be more suspect. The reason for this is as follows: recall thatapplication intentions manifest one’s thoughts on the appropriate means toachieve certain ends. Now, compared with judgments on the appropriate ends tobe achieved (that is, further intentions), the former possess a greater degree ofascertainment; they are often verifiable in ways which are not equally availablewith respect to judgments about ends. Furthermore, as means tend to vary a greatdeal with the circumstances, legislators, or anybody else for that matter, shouldnot be expected to be able to decide in advance on all the appropriate means forachieving a given end. Hence the legislators’ alleged expertise, with respect to judg-ments about the appropriate means to achieve certain ends, can be more readilycontested on the grounds of competing evidence. This entails, again, the rathernatural conclusion that judges should be more cautious about the legislators’application intentions than about their further intentions; such intentions shouldbe scrutinized meticulously, since independent reasons and evidence are typicallymore available in these cases.

The chapter cannot be concluded without mentioning the following objectionto the thesis it espouses. It might be argued that the considerations mentioned sofar actually prove the implausibility of intentionalism altogether, since, at least inthe context of law, the expertise justification thesis is never available. Admittedly,if the reasons for acknowledging the legitimacy of legal authorities are only sup-ported by the collective action justification thesis, intentionalism in law is indeedrendered vacuous; there would be no occasions for its application. I do not thinkthat this is a correct view, but I would not try to argue against it here. The point Iwanted to make is strictly conditional: if, and only if, a certain law is justified onthe basis of the expertise branch of the normal justification thesis, would it makesense to defer to the legislature’s intentions in the interpretation of the law, that is,to the extent that there is, in fact, such an intention and it can clarify somethingthat needs clarification. It is not part of my argument to insist that this is likely tohappen very often.


9

Constitutional Interpretation

1. TWO BASIC QUESTIONS

IN MOST CONSTITUTIONAL democracies, the interpretation of theconstitution involves the power of the judiciary (typically the supreme or constitutional court) to determine issues of profound moral and political

importance, on the basis of very limited textual guidance, resulting in legal deci-sions that may last for decades and are practically almost impossible to change byregular democratic processes. This unique legal power raises two main normativequestions: One is about the moral legitimacy of the institution itself, and the otheris about the ways in which it ought to be practiced. Both of these questions areactually more complex, of course, and the answers to them are bound to berelated. It is one of the arguments of this chapter that the ways in which constitu-tional interpretation ought to be carried out must be sensitive to the main con-cerns about the moral legitimacy of a constitutional regime. First, however, weneed a clearer picture of the issues.

Most democratic1 countries have a ‘written constitution’, that is, a document(or a limited number of documents) enacted in some special way, containing thecanonical formulation of that country’s constitution. Other democracies, thoughby now very few,2 have no such canonical document, and their constitution isbasically customary. Thus, if by ‘constitution’ we mean the basic political structureof the legal system, its basic law making and law applying institutions, then everylegal system has a constitution. Every legal system must have, by necessity, certainrules or conventions which determine the ways in which law is made in that sys-tem and ways in which it is applied to particular cases. In stable legal systems wewould also find rules and conventions determining the structure of sovereignty,the various organs of government, and the kinds of authority they have.

1 Most non-democratic countries have written constitutions as well. This chapter is confined, how-ever, to a discussion of constitutional democracies. Another restriction on the scope of this essay is thatit is confined to constitutions of sovereign states. I will not discuss sub-state or regional constitutionsnor should it be assumed that the arguments presented here would straightforwardly apply to suchcases.

2 These are, or perhaps just used to be, the UK, New Zealand and, until recently, Israel. (Israel doeshave some basic laws which are quasi-constitutional, and a few years ago the Israeli supreme court hasruled that it has the power of constitutional judicial review.) Even the UK, however, is not entirely freeof judicial review due to its submission to the European Convention on Human Rights and some otherquasi-constitutional constraints the courts have recently recognized.

Nevertheless, a written constitution does make a crucial difference because itestablishes a practice of judicial review. A written constitution typically enables ahigher court, like the supreme court or a special constitutional court, to interpretthe constitutional document and impose its interpretation on all other branchesof government, including the legislature. I am not claiming that this power of judi-cial review is a necessary feature of legal systems with a written constitution.3 Farfrom it. As a matter of historical development, however, with which we need notbe concerned here, it has become the reality that in legal systems with written con-stitutions some higher court has the power of judicial review.

There are five main features of constitutional documents worth noting here.

1. Supremacy. Constitutions purport to establish and regulate the basic structureof the legal system, and thus they are deemed supreme over all other forms of leg-islation. The constitution, as we say, is the supreme law of the land.4 Generally it isassumed that unless the constitutional provisions prevail over ordinary legislation,there is no point in having a constitutional document at all. I will therefore assumethat this is a necessary feature of written constitutions.

2. Longevity. Constitutions, by their very nature, purport to be in force for a verylong time, setting out the basic structure of the legal system for future generations.Ordinary statues may happen to be in force for a very long time as well. But this isnot an essential aspect of ordinary legislation. It is, however, an essential aspect ofconstitutions that they are meant to be lasting, that they are intended to apply togenerations well beyond the generation in which they had been created.

3. Rigidity. The main technique by which constitutions can be guaranteed to belasting for generations is their rigidity: Constitutions typically provide for theirown methods of change or amendment, making it relatively much more difficult toamend than ordinary democratic legislation. The more difficult it is to amend theconstitution, the more ‘rigid’ it is. Constitutions vary considerably on this dimen-sion, but it is an essential aspect of constitutions that they are relatively secure fromformal change by the ordinary democratic processes.5 Without such relative rigid-ity, constitutions could not achieve their longevity. None of this means, however,that constitutions do not change in other ways. As we shall see in detail below, themain way in which constitutions change is by judicial interpretation. Whether theyrecognize it as such or not, judges have the power to change the constitution, andthey often do so. The question of whether this is an inevitable aspect of constitu-tional interpretation, or not, is an issue I will discuss in some detail below.

3 A written constitution is, however, practically necessary for judicial review. Without such a canon-ical document, it would be very difficult for a court to impose restrictions on the legislature’s author-ity.

4 The constitution’s normative supremacy should not be confused with the idea that all law derivesits legal validity from the constitution. This latter thesis, famously propounded by Hans Kelsen, isprobably false in most legal systems.

5 The US constitution is probably one of the most rigid constitutions in the Western world. At theother extreme, there are, for example, the constitution of India, which has already been amended hun-dreds of times, and the Swiss constitution, which is quite frequently amended by popular referenda.

142 Constitutional Interpretation

4. Moral content. Most constitutions regulate two main domains: the basic struc-ture of government with its divisions of political power, and the area of humanand civil rights. In the first domain we normally find such issues as the division ofpower between the federal and local authorities, if there is such a division, theestablishment of the main legislative, executive and judicial branches of govern-ment and their respective legal powers, the establishment and control of the armedforces, and so on. In the second domain, constitutions typically define a list ofindividual and sometimes group rights which are meant to be secure fromencroachment by governmental authorities, including the legislature. There isnothing essential or necessary in this two pronged constitutional content, and thereasons for it are historical. The moral content and moral importance of a bill ofrights is obvious and widely recognized as such. It is worth keeping in mind, how-ever, that many aspects of the other, structural, prong of constitutions involvemoral issues as well. Determining the structure of government, legislation etc, isperhaps partly a matter of coordination, but many aspects of it are not withoutmoral significance. After all, we are not morally indifferent to the question of whomakes the law and how it is done.

5. Generality and Abstraction. Many constitutional provisions, particularly in thedomain of the bill of rights and similar matters of principle, purport to have verygeneral application. They are meant to apply to all spheres of public life. This isone of the main reasons for the high level of abstraction in which constitutionalprovisions tend to be formulated.6 The aspiration for longevity may be anotherreason for abstractly formulated principles. And of course, sometimes an abstractformulation is simply a result of compromise between competing conceptions ofthe relevant principle held by opposing parties of framers. Be this as it may, thisneed for generality and abstraction comes with a price: the more general andabstract the formulation of a constitutional provision, the less clear it is what theprovision actually means, or requires.

These five features of written constitutions explain the uniquely problematicnature of constitutional interpretation. On the one hand, those who are entrustedwith the authoritative interpretation of the constitution are granted considerablelegal power, their decisions are often morally very significant, potentially long last-ing, and, most importantly, with few exceptions, they have the final say on thematter.7 On the other hand, these constitutional decisions are typically based onthe interpretation of very general and abstract provisions, often enacted a verylong time ago, by people who lived in a different generation. This tension between

6 Once again, constitutions vary considerably in this respect as well. Many constitutions containvery specific provisions even in the realm of rights and principles. (I would venture to guess that a highlevel of specificity tends to occur in those cases where the constitution allows for amendment by a rel-atively straightforward process of referendum.)

7 A very interesting and suggestive exception is section 33 of the Canadian Charter of Rights andFreedoms which allows the legislature to overrule constitutional decisions of the supreme court (bothpreemptively or ex post), as long as it is done so very explicitly and renewed every five years.

Two Basic Questions 143

the scope of the power and the paucity of constraints informs the main concernsof constitutional interpretation.

One note of caution before we proceed. It would be a mistake to assume thatthere are no ‘easy cases’ in constitutional law. Not every provision of a written con-stitution is particularly abstract or problematic, nor is the whole constitutionconfined to such high-minded issues as basic rights or important moral or polit-ical principles. Many constitutional provisions can simply be understood, andapplied, without any need for interpretation. It is certainly true that there are likelyto be many more ‘hard cases’ in constitutional law than in the ordinary businessof statutory regulation, but this is just a matter of proportion. There is nothing inthe nature of constitutions which would preclude the existence of ‘easy cases’.

With this rough outline of the uniqueness of constitutional interpretation, wecan now formulate the main questions. So let us concentrate on a paradigmaticmodel, more or less along the lines of the US constitutional practice: we assumethat there is a written constitutional document which is deemed the supreme lawof the land, we assume that it has been enacted (and perhaps subsequentlyamended) some generations ago, we assume that there is a supreme court which isentrusted with the legal interpretation of the document and that this legal powerincludes the power of judicial review. I mentioned that there are two main nor-mative questions that need to be addressed: Is a written constitution morally legit-imate, and how should judges go about in their interpretation of the constitution?8

Both questions are more complex. The first question is actually twofold: there is aquestion about the moral legitimacy of the constitution, and there is a separatequestion about the moral legitimacy of judicial review. Let me consider these ques-tions in turn.

PART ONE: MORAL LEGITIMACY

2. THE MORAL LEGITIMACY OF THE CONSTITUTION

Constitutions are often described as pre-commitment devices. Like Ulysses whotied himself to the mast, the constitution is seen as a device of self-imposed com-mitments and restrictions, guarding against temptations which may lead one offthe track in the future.9 But this Ulysses metaphor is very misleading. The mostchallenging moral question about the legitimacy of constitutions arises preciselybecause it is not like Ulysses who ties himself to the mast, but rather like a Ulysses

8 It would be a mistake to assume that only judges are in the business of constitutional interpreta-tion. Surely, many other political actors, like legislators, lawyers, lobbyists, political activists etc, arealso engaged in the interpretation of the constitution and their views may often have a considerableimpact on how the constitution is understood in a given society. Nevertheless, for simplicity’s sake, Iwill concentrate on the courts, assuming that it is the courts’ authoritative interpretation which is themost important one.

9 See Jon Elster’s Ulysses Unbound (2000); Elster himself has some doubts about the application ofthe precommitment idea to constitutions. Cf Waldron (1999).


who ties others to the mast with him. In other words, the inter-generational issueis central to the question about the very legitimacy of constitutions. The enact-ment of a constitution purports to bind the current and future generations byimposing significant constraints on their ability to make laws and govern theirlives according to the ordinary democratic decision making processes. Thus thequestion arises: why should the political leaders of one generation have the powerto bind future generations to their conceptions of the good and the right? It is crucial to note that the moral significance of this question is not confined to oldconstitutions. Even if the constitution is new, it purports to bind future genera-tions. It is this intention to impose constitutional constraints for the future that isproblematic, and thus it does not really matter how old the constitution is.

It may be objected that this formulation underestimates the significance of ‘Wethe people’, that it ignores the fact that constitutions tend to embody widely sharedprinciples and ideals, representing, as it were, the nation’s raison d’etat. But thiswould make very little difference. Even if at the time of the constitution’s enactment its principles and ideals are really shared across the board, the inter-generational issue remains: perhaps no one, even an entire generation, shouldhave the power to make important moral decisions for future generations. At leastnot deliberately so. It is true, of course, that a great number of our current prac-tices and collective decisions are bound to affect, for better and worse, the fortunesof future generations. But these collective actions and decisions do not purport tohave authority over future generations. They are not deliberately designed to bindfuture generations to our conceptions of the good and the just. On the other hand,if we think that constitutions are legitimate, we should be able to explain how it islegitimate to make authoritatively binding decisions on important matters ofmorality and politics, that are supposed to last for generations and difficult tochange by ordinary democratic processes. I doubt that such an argument can beprovided, though I will not try to substantiate those doubts in any detail here.10

But perhaps it is not necessary. There are several arguments which strive to avoidthis inter-generational problem or mitigate it considerably.

First, it could be argued that the moral legitimacy of the constitution simplyderives from its moral soundness. The constitution is valid because its content ismorally good, that is, regardless of the ways in which it came into being. The claim

10 There is one argument I would like to mention, though: it has been claimed that in the history ofa nation, there are sometimes ‘constitutional moments’, when a unique opportunity arises to enshrinein a constitutional document moral principles of great importance. Since this is basically just a matterof unique historical opportunities, perhaps we should not attach too much weight to the inter-generational problem. The assumption is that the constitution legally enshrines values we would all seeas fundamental as well, it’s just that there is not always the political opportunity to incorporate thosevalues into the law and render the values legally binding. This is an interesting point, but from a moralperspective, I think that it leaves the basic question in its place: either the constitutional protection ofsuch values makes no practical difference, in which case it would be pointless, or else, if it does make adifference in being legally authoritative, then the inter-generational question remains: why should onegeneration have the power to legally bind future generations to its conceptions of the good governmentand the kind of rights we should have? An answer of the form: we just had the political opportunity todo it, is hardly a good one.

The Moral Legitimacy of the Constitution 145

would have to be that the principles concerning the form of government which theconstitution prescribes and the rights and values it upholds are just the correctmoral values under the present circumstances, and it is this moral soundness that validates the constitution. Needless to say, this argument cannot apply gener-ally, to any constitution one encounters. It would only apply when it holds true,namely, when it is actually true that the content of the constitution is, indeed,morally sound. But even so, the argument is problematic. One could say that itmisses the point of having a constitution at all. What would be the point of havinga written constitution unless the constitutional document makes a normative-practical difference? It can only make such a difference if it constitutes reasons foraction. But according to the argument under consideration, the only reasons for action the constitution provides are the kind of reasons we have anyway,regardless of the constitution, namely, that they are good moral reasons.According to the argument from moral soundness, then, it is very difficult toexplain what difference the constitution makes.

This argument from moral soundness should not be confused, however, with adifferent and even more problematic argument for the legitimacy of constitutions,which draws not on the moral soundness of the constitution itself, but on themoral expertise of its framers. According to the latter, the constitution is legitimatebecause it had been enacted by people who, at least relative to us, are experts inthose fields of political morality which are enshrined in the constitution. Thus,according to this argument, the legitimacy of the constitution derives from themoral authority of its framers. Notably, if this argument is sound, it could showhow the constitutional document does make a practical difference. It would makea difference because it meets the conditions of the normal justification thesis: by fol-lowing the constitutional prescriptions we are more likely to follow the correctmoral reasons that apply to us than by trying to figure out those reasons for our-selves. But the argument clearly fails, and for two main reasons. First, because suchan argument is bound to rely on a huge mystification of the moral stature of theframers, ascribing to them knowledge and wisdom beyond anything that would behistorically warranted. More importantly, the argument fails because it assumesthat there is expertise in morality, and this assumption is false. As I have men-tioned in the previous chapter, there are good epistemic and moral reasons to holdthat no one can possess expertise in the realm of basic moral principles.11

According to the third argument, the moral validity of the constitution is not astatic matter, something that we can attribute to the constitutional document.Validity is dynamic, depending on the current interpretation of the constitutionand its application to particular cases. As long as the particular content of the con-stitution is determined by its interpretation, and the authoritative interpretationat any given time correctly instantiates the values which ought to be upheld in thecommunity, the constitution would be morally legitimate because its actual con-tent is shaped by the pertinent needs and concerns of the community at the time

11 See also Raz (1998: 167).


of interpretation.12 In other words, this argument, which I will call the argumentfrom interpretation, renders the moral validity of the constitution entirely depen-dent on the particular uses to which it is put. These uses are determined by the particular interpretations and legal decisions rendered by the court at any giventime. Thus, a crucial assumption of this argument must be, that there is enoughinterpretative flexibility in constitutional documents to allow for the courts toadapt the constitutional prescriptions to current needs and values.

Before I consider the merit of the argument from interpretation, let me mentiona fourth argument, recently suggested by Joseph Raz. According to Raz,

As long as they remain within the boundaries set by moral principles, constitutions are self-validating in that their validity derives from nothing more than the fact that they arethere.

[P]ractice-based law is self-vindicating. The constitution of a country is a legitimateconstitution because it is the constitution it has. (1998: 173)

As Raz himself points out, there is a whole range of practices which gain theirmoral validity from the fact of the practice itself. Social conventions are of such anature. Conventions create reasons for action because they are practiced, and aslong as the convention is not morally impermissible, the reasons for action it cre-ates are valid reasons. The fact that we could have had a different, perhaps evenbetter convention under the circumstances, does not entail that there is anythingwrong with following the convention that we do have. Similarly, I presume, Razwishes to claim that as long as the constitution we have is not immoral, the factthat we happen to have it is a good reason to abide by it. But we have to be morecareful here. Our reasons for following a social convention are not entirely deriv-able from the fact that the convention is practiced, though they certainly dependon it. Conventions evolve either in order to solve a pre-existing coordinationproblem, or else they constitute their own values by creating a conventional prac-tice which is worth engaging in.13 Either way, there must be something valuable inthe practice of following the convention for it to give rise to reasons for action,beyond the fact that the convention is there and just happens to be followed.Similarly, the fact that the constitution is there and happens to be followed cannotbe the whole reason for following it. It must serve some values, either by solvingsome problems which were there to be solved, or by creating valuable practicesworth engaging in. I think that Raz recognizes this when he points out that con-stitutions typically serve the values of stability and continuity of a legal system(1998: 174–75).14

12 This idea is usually expressed by the metaphor of the ‘living constitution’. See, for example,Kavanagh (2003).

13 For a much more detailed account of the nature of social conventions see Marmor (2001: chs1–2).

14 Constitutions may promote other values as well, such as educational values, social cohesion etc.It would be a mistake to assume, however, that every type of good promoted by a given institution legit-imizes the need to have that institution in the first place. Those goods can often be achieved by othermeans as well, which may be more legitimate or desirable.

The Moral Legitimacy of the Constitution 147

There is another crucial assumption here about which Raz is quite explicit: theconclusion about the self-validating nature of constitutional practice can only fol-low ‘if morality underdetermines the principles concerning the form of governmentand the content of individual rights enshrined in constitutions’ (1998: 173). Thesame is true about social conventions, generally: unless their content is underde-termined by morality, they are not conventional rules. If morality determines therule, say, R: ‘All x’s ought to � under circumstances Cn’, then the reason for �-ingunder circumstances Cn is a moral reason, irrespective of the fact that R is practiced.

I hope that we are now in a position to see that both Raz’s argument and theargument from interpretation share a certain assumption about the nature of con-stitutions that is crucially important. Roughly, both arguments must assume thatthe written constitution, as such, actually makes less of a difference than one mighthave thought. Let me be more precise. The conditions for the legitimacy of a con-stitution must comprise the following conditions. First, the values and principlesenshrined in it must be morally permissible. This goes without saying. (I am notsuggesting that the constitution must be morally perfect, or optimal. Some moralerrors a constitution contains may be outweighed by other values it promotes.)Second, when certain choices are made in particular cases, they would be legit-imate if they are either morally underdetermined, or else, morally correct. Theapplication of constitutional principles or values can be morally underdeterminedin two ways: either they concern issues which are simply not determined by moralconsiderations, such as solution to a coordination problem,15 or else, if they domanifest moral choices, those would be the kind of choices which are madebetween incommensurable goods or values. However, in those cases in which thevalue choices are morally determinable, it is pretty clear that both the argumentfrom interpretation and Raz’s argument from self-validity must hold that onlymorally correct choices are valid. Therefore, either the constitution embodieschoices which are morally underdetermined (in one of the two ways mentioned),or else, the constitution must be applied in a way which is morally sound. It fol-lows from this that both arguments must assume that at least in those areas inwhich the constitution would make a moral difference, it can be interpreted tomake the difference that it should, that is, according to the true moral principlesthat should apply to the particular case. To be sure, the thesis here is not that theconstitutional document can be interpreted to mean just about anything we wantit to mean. But the thesis must be that constitutional documents typically allowenough interpretative flexibility that makes it possible to apply their morallysignificant provisions in morally sound ways.

I do not wish to deny the truth of this last assumption. I will have more to sayabout it in the last section. For now, suffice it to point out one important implica-tion of this thesis. Namely, that it makes the moral legitimacy of constitutions very

15 This is not to deny that there are cases in which there is a moral duty to solve a coordination prob-lem. For a more detailed account, see Marmor (2001: 25–31).


much dependent on the practices of their interpretation. In other words, a greatdeal of the burden of moral legitimacy is shifted by these arguments to the appli-cation of the constitution, thus assuming that the constitution is legitimate only ifthe courts are likely to apply the constitution in a morally desirable way. Thisbrings us to the second question about the legitimacy of constitutions, namely, thequestion about the legitimacy of judicial review.

3. THE LEGITIMACY OF JUDICIAL REVIEW

Three points about judicial review are widely acknowledged. First, that it is not anecessary feature of a constitutional regime. As I have already mentioned, it is certainly conceivable to have a legal system with a written constitution withoutentrusting the power of its authoritative interpretation in the hands of the judiciary or, in fact, in the hands of anybody in particular. Therefore, secondly, itis also widely acknowledged that the desirability of judicial review is mostly a ques-tion of institutional choice: given the fact that we do have a constitution, which isthe most suitable institution that should be assigned the role of interpreting it andapplying it to particular cases? Finally, it is widely acknowledged that the courts’power of judicial review is not easily reconcilable with general principles ofdemocracy. Even those who support the legitimacy of judicial review, acknow-ledge the existence of at least a tension between our commitment to democraticdecision procedures and the courts’ power to overrule decisions made by a demo-cratically elected legislature.16 This is a very complicated issue, and I cannot hopeto expound here on the necessary elements of a theory of democracy to substanti-ate this point.17 For our purposes, it should be sufficient just to keep this aspect ofjudicial review in mind, without assuming too much about any particular theoryof democracy.

Lawyers sometimes find it difficult to understand why the normativejustification of judicial review is separate from the question of the legitimacy ofconstitutions. For them the reasoning of Marbury v Madison is almost tautologi-cal. We just cannot have it in any other way. If we have a written constitutionwhich is the supreme law of the land, then surely it follows that the courts mustdetermine what the law is and make sure that it is applied to particular cases. Thepower of the courts to impose their interpretation of the constitution on the

16 It should be acknowledged that not every legal decision of the court about the interpretation ofthe constitution amounts, technically speaking, to what we call ‘judicial review’, in the sense that notevery constitutional decision is necessarily a review of an act of legislation. It may simply be a review ofan administrative decision, or some other legal issue that may be affected by the constitution. However,it should be kept in mind that the practical effect of such constitutional decisions is basically the same:once rendered by the supreme (or constitutional) court, it cannot be changed by the ordinary processesof democratic legislation. Therefore, even if technically speaking, not every constitutional decision isan exercise of judicial review, for most practical purposes, the distinction is not morally/politicallysignificant.

17 See Waldron (1999).

The Legitimacy of Judicial Review 149

legislature simply follows, so the argument goes, from the fact that the constitu-tion is legally supreme to ordinary legislation. But of course this is a non sequitur.Even if it is true that as a matter of law, constitutional provisions prevail overordinary legislation, and it is also true that there must be some institution whichhas the power to determine, in concrete cases, whether such a conflict exists or not,it simply does not follow that this institution must be the supreme court, or anyother institution in particular.18 The argument must be premised on the furtherassumption that the court is the most suitable institution to carry out this task ofconstitutional interpretation. But why should that be the case?

One consideration which is often offered as a reply consists in the thesis that theconstitution is a legal document and that therefore its interpretation is a legal mat-ter. Since courts tend to possess legal expertise, they are the best kind of institutionto be entrusted with constitutional interpretation. The problem with this argumentis that it relies on a dubious inference: from the fact that the constitution is a legaldocument, and that its interpretation is, therefore, a legal matter, it does not followthat constitutional decisions are based on legal reasoning requiring legal expertise.Most constitutional decisions are based on moral and political considerations. Thatis so, because the kind of issues decided in constitutional cases are, mostly, moraland ethical in nature, such as determining the nature and scope of basic human andcivil rights, or shaping the limits of political authorities and the structure of demo-cratic processes.19 Therefore, one of the crucial questions here is whether thesupreme court is the kind of institution which is conducive to sound moral delib-eration and decision making on moral issues. This question is not easy to answer.Partly, because it is a matter of culture that may vary from place to place. But alsobecause there are conflicting considerations here. On the one hand, courts do havecertain institutional advantages in this respect, having certain characteristics whichare conducive to moral deliberation. (For example, the fact that deliberation in acourtroom is argumentative, that it is open to arguments from opposing sides, therequirement to justify decisions by reasoned opinions which are made public, andso forth.) On the other hand, courts are also under considerable pressure to con-ceal the true nature of the debate, casting it in legal language and justifying theirdecisions in legal terms, even if the choices are straightforwardly moral or politicalin nature. As we have noted in previous chapters, there is a constant pressure onjudges faced with decisions in ‘hard cases’ to present their reasoning in legal language even if the decision is not based on legal reasons in any meaningful sense.Although perfectly rational from the judiciary’s perspective, such a pretence is notnecessarily conducive to sound moral deliberation.

18 In fact there is another mistake here: even if the courts are assigned the role of constitutionalinterpretation, it does not necessarily follow that they should have the legal power to invalidate an actof legislation which is unconstitutional. The appropriate remedy could be much less drastic, eg adeclaratory judgment, or there could be no remedy at all.

19 I do not wish to claim that all constitutional decisions are primarily concerned with moral issues;some constitutional decisions concern the structural aspects of government, in which case, often theissue is one of bureaucratic efficiency or such.


There is a much more important issue here. Those who favor the courts’ powerof judicial review often rely on an argument which is less concerned with thenature of the institution, and more with the nature of the decisions in constitu-tional cases. According to this line of thought, which I will call the argument fromconsensus, the reasoning which supports the institution of judicial review is as follows:

1. The rights and principles entrenched in the constitution are those which are widelyshared in the community, reflecting a deep level of moral consensus. 2. The constitutional entrenchment of these rights is required in order to protect themfrom the vagaries of momentary political pressures, from shortsighted political tempta-tions. 3. Precisely because the supreme court is not an ordinary democratic institution, it isrelatively free of political pressures and shortsighted populist temptations. 4. Therefore, by entrusting the power of judicial review with the supreme court, we arelikely to secure, as far as possible, the protection of those rights and principles which are,in fact, widely shared in the community.

Admittedly, there is a great deal to be said in favor of this argument. If its assump-tions are sound, then it would not only justify the institutional choice of the courtin deciding constitutional issues, but would also go a considerable way in mitigat-ing the anti-democratic nature of judicial review. We could say that judicial reviewis anti-democratic only on its surface; at a deeper level, it secures the protection ofthose rights and principles which are actually held by the vast majority of thepeople.20

I think that this argument fails. And it fails mostly because it is based on a mis-conception of the nature of rights and the role of rights discourse in a pluralisticsociety. Explaining this point requires a small detour, exploring some crucialaspects of the nature of rights.21 In what follows, I will assume that the most plausible account of the nature of rights is the interest theory of rights. Basically,according to this analysis, we would say that A has a right to � if an aspect of A’swell being, that is, an interest of A, justifies the imposition of duties on others,those duties which would be required and warranted to secure A’s interest in �.22

According to this analysis, rights are actually intermediary conclusions in argu-ments which begin with the evaluation of interests and end with conclusions aboutduties which should be imposed on other people. When we say that A has a rightto �, we say that A’s interest in � justifies the imposition of duties on others inrespect to that interest. From a strictly analytical point of view, however, the con-cept of a right is, in a sense, redundant; it is just an intermediary step in a moralargument leading from the values of certain human interests, to conclusions aboutthe need to impose certain duties. Therefore, the question arises: Why do we needthis intermediary step cast in the form ‘a right’?

20 For a recent defense of this argument, see Harel (2003). Cf Alexander (2003). 21 I have presented the argument which follows in the next few paragraphs in Marmor (1997).22 See Raz (1986: ch 7)


Joseph Raz gave two answers23: One partial answer might be, that it simply savestime and energy; it is often the case that practical arguments proceed through themediation of intermediary steps, simply because there is no need to begin each andevery practical argument from first premises; that would be too tedious.

There is, however, a much more important reason: intermediary steps, such asrights, enable us to settle on a set of shared intermediary conclusions, in spite ofconsiderable disagreement about the grounds of those intermediary conclusions. Inother words, people can settle on the recognition of rights, despite the fact thatthey would deeply disagree about the reasons for having those rights. Rights discourse enables a common culture to be formed around some intermediary conclusions, precisely because of their intermediary nature.

Furthermore, it is crucial to realize that there is an important asymmetrybetween rights and duties. Rights, unlike duties, do not entail that the right-holderhas any particular reasons for action. The proposition: ‘A has duty to �’ entailsthat A has a reason to �. But having a right to do something does not entail thatone has a reason to do it. (Your right to freedom of speech, for instance, does notgive you any reasons to say something.) This analytical point is very important: itexplains why people with different and competing sets of fundamental values arebound to disagree about the duties they have.24 But this need not be the case withrights, since there is no immediate relation of entailment between rights and rea-sons for action. True, there is an indirect relation of entailment: rights justify theimposition of duties on others. But it is very often the case that people agree on theexistence of a given right even if they actually disagree on the nature and scope ofthe duties which the rights justifies. Thus, it is normally easier for people with dif-ferent conceptions of the good to agree on a shared set of rights than duties, asrights do not entail immediate reasons for action.

It is, however, the intermediary nature of rights discourse which is quintessen-tial. It explains why rights discourse is particularly fit for pluralistic societies.Societies where different groups of people are deeply divided about their con-ceptions of the good, need to settle on a set of rights they can all acknowledge, inspite of deep controversies regarding the grounds of those rights (and theirramifications). Hence it is not surprising or accidental that in homogeneous soci-eties there is very little rights discourse; such societies normally share a commonunderstanding of ultimate values, and consequently of the various duties peoplehave, and they do not need this intermediary step from ultimate values to duties.Only in those societies where people do not share a common understanding ofultimate values, namely, in pluralistic societies, that rights discourse is prevalent.25

23 See Raz (1986: 181). I do not intend to suggest that Raz would agree (or not) with the main the-sis that I advocate here in the next few paragraphs.

24 Unless, of course, the duties in question are very abstract, like the duty not to cause unnecessarysuffering, or the duty to respect others. I am not suggesting that people with conflicting conceptions ofthe good and of ultimate values cannot agree on some duties we should all have. My point is relative:that it is easier to agree on a list of relatively specific rights than duties.

25 Admittedly, this last point is actually a piece of armchair sociology. But not a particularly fancyone. I think that we are quite familiar with this phenomenon, namely, that rights discourse is much


But this social function of rights discourse also points to its own limits. Theintermediary nature of rights discourse explains why determining the limits ofrights, and their relative weight in competition with other rights or values, isbound to be a controversial matter. In order to determine in a reasoned mannerthe limits of a given right, or its relative weight in a situation of conflict, one wouldnaturally need to go back to the reasons for having the right in the first place, andit is precisely at this point that agreement breaks down. As a matter of fact, moreoften than not we will discover that there was never an agreement there to beginwith. In other words, precisely because of those reasons which explain the wide-spread consensus on the rights we have, there is bound to be disagreement over theboundaries of those rights and their desirable ramifications. Widespread consen-sus on how to resolve various conflicts between rights, or between rights and othervalues, is only possible in the framework of a shared culture of moral and politicalviews, but it is typically in such cases that rights have relatively little cultural andpolitical significance. If rights discourse is prevalent in a given society, it is mostlybecause there is little agreement on anything else, in particular, on the ultimatevalues people cherish.26

If this account of the nature of rights discourse is basically correct, then it shouldbecome clear why the argument from consensus is bound to fail. It fails because itrelies on a widespread consensus which is illusory. It is true that in pluralistic soci-eties we do tend to agree on the rights enshrined in the bill of rights, but this is a very tenuous agreement which breaks down as soon as a conflict comes to thesurface. Since it is conflict between rights, or rights and other values, that gets lit-igated in the constitutional cases, we are bound to discover that there is not goingto be any consensual basis on which such conflicts can be resolved.

At this point the interlocutor is likely to ask: but what is the alternative? If we donot entrust the resolution of such conflicts in the hands of the court, how else arewe going to resolve them? The answer is, of course, that we can leave the resolu-tion of such evaluative and ideological conflicts to the ordinary legislative andother democratic decision making processes. Not because they are more likely tobe morally sound than the decisions of courts. But at least they have two advan-tages: for whatever its worth, they are democratic. And, not less importantly, per-haps, legislative decisions tend to be much more tentative than constitutionaldecisions of a supreme court. In fact, they are more tentative in two senses: First,legislative decisions on morally or ideologically controversial issues do not tend tolast for too long. Those who have lost their case today may still gain the upper hand

more prevalent in pluralistic societies than in homogenous ones. It is quite likely that there are otherexplanations for this difference, besides the one I offer here. I do not intend the explanation to beexhaustive.

26 It is probably true, though not universally so, that the prevalence of rights discourse in a givensociety does reflect a deeper level of consensus about the acceptance of pluralism and perhaps evenindividualism. But this deeper level of tacit consensus, to the extent that it exists, is very abstract andquite unlikely to have significant bearing on constitutional interpretation.


tomorrow.27 Secondly, democratic decisions also tend to convey a more tentativekind of message than constitutional decisions of a supreme court. When the courtdecides a constitutional issue, it decides it in a sort of timeless fashion, declaring atimeless moral truth, as it were; such a message conveys to the losing party that ithas got its profound moral principles wrong. As opposed to this, a democraticdecision does not convey such a message; it tells the losing party not more thanthat it simply lost this time, and may win at another. It does not necessarily con-vey the message that the loser is morally wrong, or at odds with the basic moralvalues cherished by the rest of the community.28

To be sure, none of this is meant to be conclusive. Ultimately, the desirability ofjudicial review is a matter of institutional choice, and a great many factors whichfigure in such a complex consideration are empirical in nature. Surely, one majorconsideration must concern the likelihood that a supreme court will get the moraldecisions right, or at least, more frequently right than any other institution. Arethere any reasons to believe that from an instrumental perspective, courts would doa better job in protecting our rights than, say, the democratic legislative assembly?

Supporters of judicial review think that there are plenty of such reasons. JeremyWaldron (1999), however, is rather skeptical about this instrumental argument.This right-instrumentalism, he claims, faces the difficulty of taking for grantedthat we know what rights we should have, and to what extent, and then it is onlyan instrumental issue whether the courts, or the legislature, would do a better jobin protecting them. But this is wrong, Waldron claims, because it assumes that wealready possess the truth about rights, whereas the whole point of the objection tojudicial review was that rights are just as controversial as any other political issue(1999: 252–53). Supporters of judicial review, however, need not make this obvi-ous mistake. They can maintain that whatever our rights and their limits ought tobe, they are of such a nature that legislatures are bound to get them wrong; or atleast, judges are more likely to get them right. Even in the absence of knowledge orconsensus about rights, there may be reasons to assume that some institutions aremore likely to go right (or wrong) about such issues than others. Perhaps legisla-tive assemblies do not have the appropriate incentives to even try to protect ourrights, or they may be systematically biased about such issues, and so forth.

Waldron’s reply to this, more plausible, version of rights-instrumentalism isthat the assumptions it relies upon are just as controversial as the moral issuesunderlying rights discourse (1999: 253). But this is not a convincing reply. After

27 There is one important exception: some countries may have a persistent minority group which isunlikely to have its interests protected by an ordinary majoritarian decision making process. It wouldbe a mistake to assume, however, that the only way to protect the interests of persistent minorities is byconstitutional entrenchment of their rights. Often a more sophisticated democratic process (forcing,for example, political actors in the majority to take into account the interests of the minority) may bemore efficient.

28 I heard this last argument in a lecture by Bernard Williams which he gave at Columbia Law Schoola few years ago. As far as I could ascertain, Williams has never published his lecture, which I deeplyregret. However, it should be admitted that the observation underlying this argument is at least partlyculture dependent; much depends on how the courts are actually perceived by the public.


all, how can we design political institutions, including legislative assemblies, unlesswe possess considerable knowledge about institutional constraints and the likelyconsequences of various institutional structures? Waldron should have con-fronted the institutional issue more directly, and perhaps he could show thatrights-instrumentalism may actually fail on its own terms. Neither the long historyof judicial review in the US, nor the institutional character of the courts, necessar-ily lend credence to the supporters of judicial review. It is certainly arguable thatcourts are essentially conservative institutions, typically lagging behind progres-sive movements in society,29 severely circumscribed by adversary procedures, andmost importantly, perhaps, constrained by the lack of any real political powerwhich tends to limit severely their incentive and confidence in making progressivesocial changes. Perhaps legislative assemblies are not so diverse and progressive asWaldron depicts in his Law and Disagreement (1999), but he is certainly right toquestion whether courts are necessarily better suited to protect our rights. In anycase, since judicial review is the constitutional practice in most contemporarydemocracies, and seems to be here to stay, I will move on to consider the secondmain issue about constitutional interpretation, namely, how should it proceed.

PART TWO: INTERPRETATION

4. ANY SENSIBLE ORIGINALISM?

The widespread attraction of ‘originalism’ is one of the main puzzles about theo-ries of constitutional interpretation. Admittedly, ‘originalism’ is not the title of oneparticular theory of constitutional interpretation but rather the name of a family ofdiverse ideas, some of which are actually at odds with each other. Nevertheless, theunderlying theme, due to which it is warranted to subsume such diverse viewsunder one title, is clear enough: Originalists claim that the interpretation of theconstitution should seek to effectuate, or at least be faithful to, the understandingof the constitutional provisions which can be historically attributed to its framers.Such a general thesis must comprise both a normative and a descriptive element.The normative element pertains to the conditions of legitimacy of constitutionalinterpretation: It maintains that an interpretation of the constitution which wouldnot be faithful to the ways in which the constitution was originally understood bythose who enacted it, would not be a morally legitimate interpretation. This nor-mative thesis, however, must be premised on the complex factual assumption thatwe can have a fairly sound conception of who the framers of the constitution are,and that their views on what the constitution means are sufficiently clear and dis-cernable to allow for the kind of interpretative guidance that is needed to determine(at least some not insignificant number of) constitutional cases facing the supreme

29 Yes, of course there are exceptions. The Warren Court is a famous exception in the US supremecourt’s history, but it is precisely the point of it: the progressive agenda of the Warren Court (whichonly lasted, it should be recalled, for about two decades) is such a remarkable exception.

Any Sensible Originalism? 155

court. There are so many reasons to doubt both of these assumptions that it is quitea mystery why originalism still has the scholarly (and judicial) support that it does.

Consider the factual assumptions first. There are numerous ways in which con-stitutions come into being; sometimes they are enacted as a result of a revolutionor a civil war striving to stabilize and legalize the new constitutional order, at othertimes as result of a secession (which may be more or less orderly), and sometimesas a result of a legal reform that takes place within a well functioning legal systemand according to its prescribed legal authority. In spite of this historical diversity,it is commonly the case that a very large number of political actors are involved inthe process of creating (or amending) the constitution, and it is typically the casethat our knowledge of their precise roles in the process, and their eventual impacton its result, is very partial, at best. Thus the term ‘the framers of the constitution’usually refers to a very loose concatenation of a fairly large number of people andinstitutions, playing different legal and political roles in the constitution’s enact-ment.30 How likely is it that such a loose group of political actors would actuallyshare a reasonably coherent moral and political philosophy underlying the variousconstitutional provisions? Or, indeed, that they would have any particular viewsabout most of the constitutional issues which will come before the courts, oftengenerations later?

But such factual doubts should be the least of our worries. The main problemwith originalism is a moral one: Why should the framers of a constitution, or any-one for that matter, have the tremendous power of having their moral and polit-ical views about what constitutes good government and the nature of our basicrights, imposed on an entire nation for generations to come? Unless originalistscan provide a moral justification for granting such a vast and lasting power on anyparticular person, or group persons, their case for originalism cannot be substan-tiated. And the problem is that there are only two kinds of argument one can offerhere, and both of them are bound to fail. The idea that the framers’ views shouldinform constitutional interpretation can either be derived from the assumptionthat the framers somehow had known better what ought to be done, that theyshould be considered as moral experts, as it were, or else it must be based on theidea that any conceivable alternative is even worse, less legitimate.31 Since I havealready mentioned the doubts we should have about the idea that the framers canbe regarded as moral experts, let me consider the second kind of argument.

Any alternative to originalism, so this argument runs, would involve the powerof the judges of the supreme court to determine, on the basis of their own moral

30 The problem of identifying the ‘framers’ is exacerbated in those cases in which there is an elabor-ate ratification process of the constitution.

31 In fact, there is a third argument which is often mentioned: originalists sometimes rest their caseon the claim that the historical truths about framers’ intentions are objective and thus allow an objec-tive constraint on judicial discretion in constitutional cases. But this is puzzling, at best. First, becauseone can think of countless other ways in which judges could decide cases, much more objective thanthis one; they could toss a coin, for example. Secondly, the assumption that the interpretation of his-tory is somehow objective or free of evaluative considerations, or that it is free of bias and ideologicalprejudices, is just too naïve to be taken seriously.


views, what the constitution actually means in controversial cases. In other words,the assumption is that unless judges are required to defer to the ‘original’ under-standing of the constitution, they would simply impose their own moral and polit-ical views on us, and that would be illegitimate for various reasons. For example,because the supreme court is not a democratic institution, it is not accountable tothe people, it does not necessarily reflect the wish of the people, and so forth. Onceagain, it should be noted that this argument rests on two limbs. It must assumethat an original understanding of the constitution is actually capable of constrain-ing, at least to some extent, the possible interpretations of the constitutional document, and it contends that such a constraint is, indeed, morally desirable.

Let me concentrate on the moral issue. Thus, to make the argument at least initially plausible, let us suppose that we do know who the framers of the consti-tution are, and suppose further that we can be confident that we know everythingthat there is to know about their purposes, intentions, and so forth. Framing thisin terms of the intentions of the framers, let us follow the main distinction intro-duced in the previous chapter and divide the relevant intentions of the framersinto those which constitute their further intentions and those which constitutetheir application intentions.

Now, most originalists would readily admit that deference to the framers’application intentions is very problematic. Or, at the very least, they would haveto admit that the older the constitution, the less it would make sense to defer tothe framers’ application intentions.32 Surely it makes no sense to rely on the viewsof people who lived generations ago about things they were completely unfamil-iar with and could not have possibly imagined to exit. But if we think about thisin a principled way, we must acknowledge that this conclusion cannot beconfined to particularly old constitutions. Just as it makes no sense to bind theconstitutional interpretation to application intentions of ‘old’ framers, becausethey could not have predicted the kind of concerns we face today, it would makeno sense to bind any constitutional interpretation for the future by the applicationintentions of framers in our generation.

Thus, if originalism is to make any sense at all, it must be confined to theframers’ further intentions. Even if we have no reason to speculate about theframers’ thoughts and expectations with respect to the ways in which the relevantconstitutional provisions should be applied to particular cases, so this argumentruns, we do have reasons to understand and respect the general purposes that theframers’ had had in enacting the constitutional provision which they did.Although not phrased in terms of this distinction between application and furtherintentions, this is basically the view about constitutional interpretation whichDworkin advocates. History should be consulted, Dworkin claims, in order tounderstand what is the general moral or political principle that the framers hadsought to enact in the constitution. We must try to understand the ‘very general

32 See, for example, Goldsworthy (2003: 177)


principle, not any concrete application of it’ (1996: 9). The latter should be left tothe supreme court to figure out according to its best moral reasoning.

The main problem with this argument is, however, that it actually ignoresDworkin’s own best insight about the nature of interpretation. Any interpretation,Dworkin (1986: 60–61) rightly claimed, must begin with certain views about thevalues which are inherent in the genre to which the text is taken to belong. Unlesswe know what it is that makes texts in that particular genre better or worse, we can-not even begin to interpret the particular text in hand. If I purport to offer aninterpretation of a certain novel, for example, I must first have some views aboutthe kind of values which make novels good and worthy of our appreciation.Otherwise, I could hardly explain why should we pay attention to this aspect of thenovel rather than to any other. A certain view about what makes instances of agiven genre good or bad must inform any interpretation of a text within thatgenre. Dworkin is absolutely right about this. But then the same principle shouldapply to legal interpretation, including in the constitutional context. Before wedecide to consult history, or intentions, or anything else for that matter, we mustfirst form our views about the kind of values which are inherent in the relevantgenre. In the constitutional case, we must rely on the correct views about whatmakes constitutions good or bad, what is it that makes a constitutional regimeworthy of our appreciation and respect. But as soon as we begin to think about thisquestion, the appeal of the framers intentions dissipates even before it takes anyparticular shape.

I do not intend to suggest that an answer to the general question of what makesconstitutions valuable is easy to answer, or even that we can have satisfactoryanswers to it. But at least we know some of the problems, and the moral authorityof the constitution’s framers is one of them. As we have noted above, it is one ofthe main concerns about the legitimacy of constitutions that by following a con-stitution as the supreme law of the land, we in effect grant the framers of the con-stitution legal authority which exceeds the authority of our elected representativesto enact laws according to respectful democratic processes. This is a very consid-erable power that is not easy to justify, particularly when we take into account thefact that it is supposed to last for generations (and is typically guaranteed to do soby the constitution’s rigidity). As we have noted earlier, the role of the framers inthe enactment of a constitution is one of the most problematic aspects of the legit-imacy of a constitutional regime. Once we discard any assumption about theframers’ superior knowledge about matters of moral and political principle, as weshould, not much remains to justify their particular role in legitimizing the con-stitutional framework that we have. Thus the more we tie our deference to the con-stitution to the framers’ particular role in its enactment, the more acute theproblem of moral legitimacy becomes. Whatever it is that makes constitutionsgood and worthy of our respect, could have very little to do with the moral orpolitical purposes of its framers. The legitimacy of a constitution must reside in thesolution it offers to the problems we face, not in the purposes, however noble andadmirable, that the framers had had. And it is advisable to keep in mind that the


framers of a constitution could also have had purposes and intentions which arenot so noble and admirable. Either way, it should make no difference.

Consider, for example, one of Dworkin’s own favorite cases: suppose that thequestion is whether the equal protection clause of the 14th amendment of the USConstitution rules out school segregation or not. Dworkin contents that this ques-tion should not be determined according to the application intentions of theframers; in fact, we probably know well enough that the framers of the 14thamendment would not have thought that it rules out anything like school segre-gation. Instead, Dworkin claims, we should consider the kind of general principlewhich the framers intended by the phrase ‘equal protection of the laws’. Then weshall see that it must be a very general moral principle of excluding any form ofunjustified discrimination, and not only some weaker principle of formal equalitybefore the law. ‘History seems decisive’, Dworkin writes, ‘that the framers of theFourteenth Amendment did not mean to lay down only so weak a principle as thatone . . .’ (1996: 9). But it is just puzzling how Dworkin ignores the possibility of theopposite historical verdict here: What if it really turned out that history was deci-sive in supporting the opposite conclusion? Suppose that it really was the case thatthe framers had in mind only, and exclusively, a very narrow principle of a formalequality before the law, and not anything as general as an anti-discriminationprinciple of equality.33 Should that force us to the conclusion that Brown v Boardof Education was wrongly decided? Or should it even mean that there is any con-sideration worth mentioning that counts against the moral legitimacy of Brown?We are just left to wonder why should we ever care about framers’ purposes, asgeneral or abstract as they may be.

I began this last discussion by suggesting that originalism is at least partly moti-vated by the fear of its alternative. I will get to this in a moment. However, it shouldbe kept in mind that if originalism does not make any moral sense, the poor fateof its alternatives cannot provide it with any credentials either. Even if there is aproblem of moral legitimacy with the supreme court’s decisions on constitutionalissues, it cannot be solved by striving to curtail the discretion of the court by meanswhich are morally groundless. So what is the alternative? Perhaps this one: that thecourts should strive to interpret the constitution according to their best possibleunderstanding of the moral/political issues involved, striving to reach the best pos-sible moral decision under the current circumstances. To be sure, I do not meanto suggest that there is always, or even most of the time, one decision which is thebest. There may be several conceivable decisions, equally, or incommensurablygood (or bad). The point is that in constitutional interpretation on matters of

33 In some of his writings Dworkin (1977: 134, but cf 1985: 49) seems to have suggested that the onlyrelevant evidence of the framers’ intentions in such cases is a linguistic one: the very abstract formula-tion of the pertinent constitutional provision attests to the further intention of the framers’ to enact theabstract principle as such, and not any specific principle which they may have hoped to achieve, but didnot enact in the constitutional provision. But this is not a coherent argument: either the issue is an his-torical one, in which case no evidence can be excluded, or else, it is not an argument which refers tohistorical truths, in which case it is very unclear why should we speak about the framers here at all. Toput it briefly, originalism cannot be derived from textualism.


moral or political principle, there is no substitute to sound moral reasoning. Forbetter or worse, the courts are entrusted with the legal power to interpret the con-stitution and sound moral reasoning is the only tool at their disposal. This is onlya conclusion at this stage, not an argument. Before it can be substantiated, we mustconsider a few more alternatives and modifications.

5. ALTERNATIVE METHODS?

What is the legal authority of the court to rely on moral arguments in constitutionalinterpretation? The simple answer is that the constitution is phrased in moralterms, enshrining moral and political principles and individual or group rights.More precisely, however, the effect of the moral language and moral subject mat-ter of constitutional clauses is to confer on the court a type of directed power.34 Thisis a legal power, and it is directed in two respects: It is the kind of power that thecourts ought to exercise, and it is constrained by certain prescribed aims and rea-sons. When the law grants a certain legal power to an agent, it typically leaves itentirely to the choice of the agent whether to exercise the power or not. However,the law frequently grants certain powers to various agents, mostly judges and otherofficials, which they are duty bound to exercise. This is one sense in which thepower to interpret the constitution and, as I will argue below, actually to change it,is directed. When the constitution prescribes, for example, that ‘cruel and unusualpunishment’ should be invalidated, it actually imposes a duty on the supreme courtto determine what kinds of punishment are cruel and unusual, and therefore,invalid. Note, however, that this power is constrained in another crucial sense,since it limits the kind of purposes judges should take into account and the kind ofreasons they can rely upon to justify their decision. Not any kind of considerationwould justify invalidating certain penal practices, only those which are really cruel.And since cruelty is a moral concept, the reasons for such a decision must be moralones, and not, say, economic efficiency or budgetary concerns.

The claim that judges have directed power to rely on moral arguments in theirinterpretation of constitutional clauses is not news, of course. Controversies areabound, however, with respect to the kinds of moral argument which are legitimateand the boundaries of such interpretative reasoning. I will consider three such controversies: the question of whether judges should rely on the conventional con-ceptions of morality, the question of ‘enumerated rights’, and the question ofwhether there is a distinction between conserving and innovative interpretations.

5.1 Conventional Morality?

It is difficult to deny that our constitutional regime has trapped us in a veryuncomfortable situation. On the one hand, it is clear that constitutional cases

34 See Raz (1994: ch 10) and Marmor (2001: 67–68).


involve decisions of profound moral importance and judges who are entrustedwith the interpretation of the constitution must make decisions on very importantissues of moral principle. But once we realize that the court’s decisions in consti-tutional cases are, practically speaking, almost impossible to change by regulardemocratic processes, we are bound to feel very uneasy about the courts’ power toimpose its moral views on the nation without any significant political account-ability. Understandably, then, it is tempting to seek ways to mitigate such concerns. Now, there seems to be an obvious consideration which presents itself:judges should interpret the constitution on the basis of those moral and ethicalvalues which are widely shared in the community, that is, even if they happen tobelieve that such moral views are mistaken and not critically defensible. So thereseems to be an easy way out of the dilemma: as long as judges are confined to relyon conventional moral values, those values which are widely shared by the entirecommunity, their decisions would not disrupt the democratic nature of the regimeand thus we mitigate the problem of lack of accountability.35

This is not a very good idea, however, and for several reasons. To begin with,more often than not, it is not a real option. In a great number of cases which getlitigated at the constitutional level, there is no widely shared view that can settlethe interpretative question. Such cases tend to be litigated precisely because thereis a widespread moral controversy and various segments of the population holdopposing views on the matter. Nor can we assume that controversies are only atthe surface and that there is bound to be greater consensus at a deeper level. As Ihave already argued in section 3, quite the opposite is true. It is typically the casethat only at a very superficial level we can all agree that a certain right should beprotected, but when we begin to think about the deeper reasons for such norma-tive conclusions we will soon realize that the disagreements are rather profound.

Secondly, and more importantly, the idea that constitutional interpretationshould be grounded on those values which happen to be widely shared in the com-munity would undermine one of the basic rationales for having a constitution inthe first place. Values that are widely shared do not require constitutional protec-tion. If we have a good reason to enshrine certain values in a constitution and thusremove their protection from the ordinary democratic decision making processes,it must be because we think that those values are unlikely to be shared enough, soto speak, as to allow their implementation without such constitutional protection.It is precisely because we fear the temptation of encroachment of certain values bypopular sentiment that we remove their protection from ordinary democratic

35 This is not an idle method invented by scholars only to be refuted in their articles. Many consti-tutional decisions are actually justified by such a reasoning. For example, it is often claimed that the USsupreme court’s decision to legalize capital punishment is justified because it gives effect to the viewsheld by the vast majority of Americans. Recently, the court justified its decision to change its views onthe constitutionality of the execution of retarded persons by appealing to changes in the popular sen-timent. See Atkins v Virginia (536 US 304, 2002). Similarly, I am often told by my colleagues that it isimpossible to change the current interpretation of the second amendment’s so called ‘right to beararms’ because it reflects widely shared popular beliefs.

Alternative Methods? 161

processes.36 After all, the democratic legislature is the kind of institution which isbound to be sensitive to popular sentiment and widely shared views in the com-munity. We do not need the constitutional courts to do more of the same. If weneed constitutional protection at all, it is because we assume that ordinary legisla-tion is all too sensitive to popular sentiment and widely shared views. And then wemust think that even if a moral view is widely shared, it can still be mistaken andthat it would be wrong to implement it. Without holding such a view on the limits of conventional morality, constitutionalism makes no sense.37

None of this means that the courts should ignore conventional morality altogether. In some cases there may be good moral reasons to take into accountconventional morality, even if the latter is partly mistaken. But these are rare occa-sions. A typical case I have in mind concerns the phenomenon of moral change.38

New values are sometimes discovered, or invented. We may come to realize newvalues of things or actions, hitherto unnoticed. Or things can lose their value whenwe come to realize that they are no longer valuable.39 Such changes in evaluativejudgments tend to involve a transitional period and such transition tends to bemore difficult for some than for others. People differ in their capacities to adaptand internalize the need for change. Racial equality, and more recently, genderequality, are prominent examples that come to one’s mind in this context. Thus,it may happen, as it often does, that the individuals who occupy the supreme courtrealize the need for change and would have good reasons to implement it. But ifmost people are not yet there, if it is the case that new values have not yet takenroot in most of the population, it may be advisable to postpone constitutionalchange until a time when it would be better received and easier to implement. This is not a rule, and contrary conclusion is certainly warranted in some cases. Arguably, the Brown case is such a counter example, and the difficulties ofimplementing it, that lasted for decades, attest to it. But the fragility of this imple-mentation process, and its tremendous cost, also point to the limits of innovationthat courts can pursue. It is difficult to generalize here. Much depends on socialcontext and a great many social variables that we can only hope to guess right.

36 I am not claiming here that, all things considered, this is a sound reason for constitutional pro-tection of rights and principles. All I am saying is that, to the extent that there is such a sound reason,it must assume this point. There is a sense, however, in which the argument should be more nuanced.Two people may share a certain value but differ in the ways in which they apply the value they share toparticular cases. Shared values do not necessarily entail shared judgments on particular cases.

37 Perhaps this argument could also be used to reach the conclusion that democratic legislativeassemblies are not to be trusted with the protection of constitutional rights. This might be too quick amove, however. Much depends on specific legislative procedures, and various institutional constraints.See, for example, Garrett and Vermeule (2001).

38 Another example, which is rarely relevant in constitutional cases, concerns those political choicesin which the right decision is simply the one which is actually preferred by the majority. These are usu-ally cases in which we must make choices about preferences of taste, where no particular preference issupported by any general reasons; in such cases it makes sense to maintain that the preferences of themajority should prevail, just because they are the majority. I have elaborated on this type of decision inmy ‘Authority, Equality, and Democracy’ (forthcoming in Ratio Juris).

39 See Marmor (2001: 160–68).


5.2 Enumerated Rights?

The phenomenon of moral change raises another important concern in constitu-tional interpretation. Very few constitutions explicitly grant to the supreme courtthe power to invent new constitutional rights as need arises. Constitutions tend tocontain a specific list of individual (and, more recently, certain group) rights,mandating the court to enforce those rights and not others.40 But when the con-stitution is relatively old, and social change brings with it new concerns and newvalues, social and moral pressure may build up to recognize a new basic right, notenumerated in the constitutional document.41 Should then the courts simplyincorporate the new right by their own innovation, or just wait for a formal con-stitutional amendment? An answer to this question partly depends on the specificlegal and political culture. In some countries, the constitution is not particularlyrigid and constitutional amendments are more frequent. Under such circum-stances, there is likely to be an expectation, and perhaps a justified one, that newrights should be recognized only through the formal amendment process. In otherplaces, particularly if the constitution is very rigid, there may be a greater amountof tolerance in allowing the courts to innovate and extend the constitution as needarises. But the question is not only a social-political one. It also pertains to thenature of legal interpretation and the morality of constitutional law.

There are two possible cases. Sometimes the constitutional document does notmention a specific right, but it can be derived by a moral inference from thoserights and values which the constitution does mention. This is the easier case: If agiven right can be derived from those rights and values which are listed in the con-stitution, there is a great deal to be said in favor of the conclusion that the courtsshould draw the correct moral inference and recognize the right in question. Noother stance would be morally consistent. The main difficulty concerns the secondtype of case, where no such derivation is possible; cases in which it cannot beclaimed that the new right in question is simply deducible from those which arealready recognized in the constitution. In these latter type of cases, it seems naturalto claim that a recognition of a new right, un-enumerated in the constitution,amounts to changing the constitution itself, which is a legal power that the courtsdo not, and should not, have. Introducing any change in the constitution, this argu-ment assumes, is exclusively within the domain of constitutional amendments

40 Some lists of rights are more open ended and allow the courts to incorporate rights on the basisof new interpretations of existing rights. A good example is Article I of the German Basic Law whichstates that the right to human dignity is inviolable. The value of human dignity is broad and flexibleenough to encompass a considerable range of rights and values thus allowing the German Con-stitutional Court a considerable amount of innovation.

41 A good example is the right to privacy in the US constitution. Privacy is not mentioned in theconstitution, and there is certainly no right to privacy enumerated there, but as the court realized dur-ing the mid to late 1960s, a need to recognize and enforce such a right became apparent. Consequently,in a series of important and rather controversial decisions, the court recognized the right to privacy asa constitutional right. See: Griswold v Connecticut (381 US 479, 1965); Katz v United States (389 US 347(1967) and others.


according to the processes prescribed by the constitution, and not something thatthe courts should do within their power of rendering constitutional decisions.42

This sounds right, but under closer scrutiny, the argument turns out to be moreproblematic than it seems. The argument assumes that there is a distinctionbetween the ordinary interpretation of constitutional clauses, which is presumedto be legitimate, and their change, which is not. But if any interpretation amountsto a certain change, then the distinction is, at best, a matter of degree and not a dis-tinction between two kinds of activity. In other words, it is arguable that any inter-pretation of the constitution changes its meaning, and hence it would make nosense to claim that judges do not have the power to change the constitution. Theydo it all the time, and the only genuine concern is about the extent of the changewhich is legitimate, or desirable, under the pertinent circumstances.

I have already argued, in previous chapters, that any interpretation changes ourunderstanding of the text, or the possible uses to which it is put. Interpretation, byits very nature, adds something new, previously unrecognized, to the ways inwhich the text is grasped. Let me reiterate briefly. In the ordinary use of a language,competent users just hear or read something, and thereby understand what theexpression means. This does not amount to an interpretation of the expression.Interpretation comes into the picture only when there is something that is notclear, when there is a question, or a puzzle, something that needs to be clarified.There is always the possibility of misunderstanding, of course, but then again, mis-understanding does not call for an interpretation. We typically clarify a misun-derstanding by pointing out the relevant fact, eg ‘this is not what x means’, or ‘thisis not what I meant’ or such. Interpretation, on the other hand, is not an instanceof clarifying a misunderstanding. You do not interpret anything simply by point-ing out a certain fact (linguistic or other) about the text or its surrounding circumstances. Interpretation must always go beyond the level of the standardunderstanding of the meaning of the relevant expressions. When you offer aninterpretation of a certain text, you strive to bring out a certain aspect of the textwhich could not have been grasped simply by, say, reading it and thereby under-standing what the expression means. Thus, at least in one clear sense, interpreta-tion always adds something, a new aspect of the text which had not beenpreviously recognized or appreciated.

Does it mean that interpretation always changes the text, or would it be moreaccurate to say that it changes only our understanding of it? (‘Understanding’ hereshould be taken in a very broad sense, including such as what we value in the text,what uses it can be put to, and so on.) It seems natural, and generally quite rightto say that it is the latter. The text, we should say, remains the same; its interpreta-tion changes only what we make of it.43 But there are two relevant exceptions.First, when we have a long series of successive interpretations of a given text, apoint may be reached where the distinction between the original meaning of the

42 See, for example, Goldsworthy (2003). 43 Cf Raz (1995).


text, and its meaning as it has been shaped by previous interpretations, may getvery blurred. This is an actual, historical process, and it may, or may not, happen.

Be this as it may, the second exception is the important one: As opposed tointerpretation in all other realms, legal interpretations which are exercised by thecourt, are authoritative. The court’s interpretation of the law actually determineswhat the law is (that is, from the point of interpretation onwards). That is why inthe legal case, authoritative interpretations of the text actually change it. Whenjudges in their official capacity express their interpretation of the law, it is the law.Judicial decisions attach new legal meanings, and thus new legal ramifications, tothe text, and in this they change, in the legal sense, the text itself, not only ourunderstanding of it. Needless to say, often these changes are minute and hardlynoticeable; at other times, they are more evident, even dramatic. But once anauthoritative interpretation of a law has been laid down, the law is changed, andthe new law remains in force until it is changed again by a subsequent interpreta-tion. All this is bound to be true about constitutional interpretation as well. In thelegal sense, the constitution means what it is taken to mean by the supreme or con-stitutional court. And as their interpretation changes, so does the legal meaning ofthe constitution itself.44 Thus the thesis we examined, according to which judgeshave the power to interpret the constitution but not to change it, is groundless.Any interpretation of the constitution changes its legal meaning, and therefore,the constitution itself.

A note of caution may be in place here. None of the above entails that judgescannot make mistakes in their constitutional interpretation. Surely, such anassumption would be absurd. There are better and worse interpretations, andthere are mistaken interpretations as well. But the fact is that even erroneous inter-pretations make the law. I believe that the US supreme court has made an error, ahuge error, in deciding that capital punishment does not violate the eighth amend-ment. I think that it was a mistaken interpretation of the constitution.Unfortunately, however, it is still the law. Capital punishment is constitutional inthe US legal system.

All this being said, we are still not entitled to reach a conclusion about thecourts’ authority to invent new constitutional rights. We have only shown that oneargument against it is not sound, but other arguments may still be valid. I doubt,however, that any general conclusion would be warranted. When a need for a cer-tain constitutional change is present, the change ought to be made. The questionof who should make it, and according to what procedures, is partly a questionabout the political culture of the relevant society, partly a question of institutionalchoice and, arguably, partly a matter of democratic theory. Perhaps in certain legalsystems these considerations yield a fairly determinate conclusion. I cannot speculate on such matters here.

44 Lawyers would consider this quite obvious: when a question arises about the constitutionality ofa certain issue, it is mostly the case law that lawyers would refer to.


5.3 Conserving and Innovative Interpretations

In popular culture there is a conception of the courts’ role in constitutional inter-pretation as one which moves between activism and passivity, sometimes leaningmore towards the one than the other. Sometimes the courts come up with novel,even surprising decisions, at other times they manifest conservativism, passivity,or restraint. Judicial activism, however, can mean several different things.

First, there is a distinction which pertains to the content of the moral andpolitical agenda of the court, to the extent that it has one. In this sense, we couldsay, for instance, that the Warren court was liberal and progressive, and theRehnquist court is conservative. The moral and political agenda of the court,however, does not entail anything about the kind of constitutional interpretationwhich would be required to effectuate the relevant agenda. Sometimes, by exer-cising restraint or just not doing much, you get to advance a conservative agenda,at other times, you do not. The US supreme court during the Lochner era, forexample, was activist in pursuing a very conservative agenda. It all depends onthe base line and the relevant circumstances. The nature of the moral objectivedoes not determine the nature of constitutional interpretation strategy which isrequired to achieve it.

Another distinction which lawyers and political theorists often talk about con-cerns the willingness of the court to confront opposition and engage in a conflictwith the other political branches of the government or with certain segments ofthe population. The more the court is willing to impose its views in spite of (realor potential) opposition, the more it is an ‘activist’ court, we would say. Butagain, activism in this sense is neither related to the content of the moral viewsin question, nor does it entail anything about the nature of constitutional inter-pretation, as such. Both during the Lochner era, and the Warren court era, theUS supreme court pursued an activist role, but driven by opposite moral/politi-cal agendas in these two cases. Furthermore, activism in this sense does not nec-essarily translate itself to any particular type or method of constitutionalinterpretation. Activism, in this sense, simply means the willingness to confrontpolitical opposition. What the opposition is, and what it takes to confront it, isentirely context dependent.

The distinction which does pertain to methods of constitutional interpretationis the one which divides interpretations of the constitution into those which con-serve previous understandings of it, and those which strike out in a new direction,so to speak. Raz calls it the distinction between conserving and innovative inter-pretations. Both are inevitable in the interpretation of a constitution. In fact, con-stitutional interpretation, Raz suggests, ‘lives in spaces where fidelity to an originaland openness to novelty mix . . . constitutional decisions are moral decisions thathave to be morally justified, and the moral considerations that apply include bothfidelity to the law of the constitution as it is, . . . and openness to its shortcomingsand to injustices its application may yield in certain cases, which leads to opennessto the need to develop and modify it’ (1998: 180–81).


I think that Raz would admit that just about any interpretation involves both aconserving and an innovative element. On the one hand, interpretation must bean interpretation of a text, which entails that it must be, to some extent, true to theoriginal, defer to the text it strives to interpret. Otherwise, as Dworkin would say,it is just an invention of a new text, not an interpretation of one. But as we havealready seen, every interpretation must also have an innovative element, it mustadd some new insight or understanding, something which is not obviously therealready. In other words, every interpretation is a mix of a certain deference to theoriginal and shedding new light on it, and if there is a distinction between con-serving and innovative interpretations, it is a distinction between the proportionsof these two elements. It is a difference in degree, not a distinction in kind.

Nevertheless, there is a sense in which the distinction is very familiar. Lawyersfrequently refer to ‘landmark decisions’, and by this they usually refer to decisionswhich have introduced a major change in the law or, at the very least, have clarifiedan important aspect of it which had been confused or unclear before the decisionwas rendered. These would seem to be innovative interpretations. And then, ofcourse, there are many decisions which do not qualify as ‘landmark’ decisions, inthat they simply reaffirm an aspect of the law which was already known. Or, if theyintroduced a change, it was relatively small or marginal. I have no qualms aboutthis distinction. But it may be worth asking what is it, exactly, that the court con-serves in its ‘conserving interpretation’? The constitution itself? Its ‘original mean-ing’? And what would that be? What could be meant by Raz’s expression ‘fidelityto the law of the constitution as it is’?

In one sense, we know the answer: faced with a constitutional case, the courtmay decide to adhere to its previous interpretations of the relevant constitutionalissue, or else, it may decide to change it. So when we speak about conserving inter-pretation, what we have in mind is the conservation of its previous interpretationsby the court. Accordingly, innovative interpretation would be a form of overrulingthe court’s own previous interpretation of the pertinent constitutional clause. Thismakes perfect sense. The question is whether it would still make sense to speak ofa conserving interpretation when it is not a previous interpretation which is sup-posed to be conserved, but somehow the constitution itself, or ‘the constitution asit is’, to use Raz’s expression.

Before we explore this issue, let me reiterate a crucial point: even in constitu-tional law, there are ‘easy cases’. Easy cases do not tend to reach constitutionalcourts, but it does not mean that the constitution cannot be simply understood,and applied, to countless instances in ways which do not involve any need forinterpretation whatsoever. Governments operate on a day-to-day basis, electionsare run, officials elected, and so on and so forth, all according to the provisions of the constitution. Almost invariably, however, constitutional cases get to be litigated and reach the supreme court in those ‘hard cases’ where the relevant con-stitutional clause is just not clear enough to determine a particular result.(Sometimes a case reaches the court in spite of the fact that there is, actually, a previous interpretation which would determine the result, but one of the parties


manages to convince the court to reconsider its previous doctrine and potentially,overrule it. But even in those cases, there must be a plausible argument that therelevant constitutional clause could mean something different from what it hadbeen previously thought to mean.) In other words, constitutional cases are almostalways hard cases, arising because the constitution ‘as it is’ is just not clear enough.So what would it mean to conserve ‘the meaning of the constitution as it is’, whenthe litigation stems from the fact that it is not clear enough what the constitutionrequires in that particular case? Unless we want to revive a mythical originalismhere, I think that there is nothing that a constitutional interpretation can conserveunless it is a previous interpretation. When there is no previous interpretation thatbears on the case, and the case is respectable enough to have reached constitutionallitigation, conserving interpretation is simply not an option because there is notanything to conserve there.

One final comment. I have been arguing here that in the realm of constitu-tional interpretation, there is hardly any alternative to sound moral deliberation.Constitutional issues are mostly moral issues, and they must be decided on moralgrounds. On the other hand, I have also raised some doubts about the morallegitimacy of judicial review and, to some extent, about the very legitimacy oflong lasting constitutions. So is not there a tension here? Yes there is, but it doesnot necessarily point towards a different conclusion. It would be a mistake tomaintain that because the very legitimacy of constitutional interpretation isclouded in some moral doubts, judges should adopt a strategy of self-restraint,refraining from making the right moral decisions just because they might be con-sidered bold, unpopular, or otherwise potentially controversial. Perhaps it is truethat constitutional courts have too much political power in the interpretation ofthe constitution. But since they do have the power, they must exercise it prop-erly. If the best way to exercise the power is by relying on sound moral argu-ments, then moral considerations are the ones which ought to determine, as faras possible, the concrete results of constitutional cases. Sometimes moral consid-erations may dictate caution and self-restraint and at other times they may not.But what the appropriate moral decision ought to be is rarely affected by thequestion of who makes it.

I should be more precise here. I do not intend to claim that courts should notexercise self-restraint. Far from it. There are many domains, including within con-stitutional law, where caution, self-restraint and avoidance of intervention is theappropriate strategy for courts to pursue. That is so, because there are many areasin which the courts are less likely to get things right than the particular agency orauthority which they are required to review. This is basically a matter of compar-ative institutional competence. My argument above is confined to the nature ofthe moral considerations which ought to determine constitutional decisions. If thedecision is of such a nature that it depends on relative institutional competence,then morality itself dictates that those who are more likely to have the better judg-ment should be left to make the relevant decision. Either way, the courts shouldrely on sound moral judgment.


None of this means that the doubts about the moral legitimacy of judicial reviewshould be shelved away and forgotten. Far from it. The practical conclusionswhich follow from such concerns could justify the need for reform and amend-ment of our constitutional regime. Perhaps constitutions should be made lessrigid, allowing for easier amendment procedures; perhaps certain powers of con-stitutional interpretation ought to be shifted from the judiciary to the legislativeassembly; perhaps constitutions should mandate their own periodical revisionsand re-confirmation by some democratic process. I am not sure about any of thesesuggestions, but I am confident that there is much room for innovation andimprovement.

* I am very grateful to Erwin Chemerinsky, David Enoch, Chaim Gans, Elizabeth Garrett, AlonHarel, and Michael Shapiro, for their comments on drafts of this chapter. I have also benefited fromdiscussions of this chapter at the USC faculty workshop, McGill University Legal Theory workshop,and at the faculty of law at Tel Aviv University.


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References 175

adjudication: interpretation 9, 95theory 39, 45

aims 127America see United Statesanalytical jurisprudence 2application intentions 129–32, 157arbitration, and authority-capacity 88art v artifact, as metaphor 77, 82–6Austin, JL 2Austin, John 37, 71authority-capacity 87–94author’s intentions model 29–32

Bentham, Jeremy 37bivalence 66–7

and morality 67Brown case 162

central-state realism 68chain novelists metaphor 55–8charity principle 12–13, 44–5coherence 47, 53

constraints 58–9enterprise-determined options 57fit 54–5, 62–4identity 54and integrity 53–5and knowledge 49, 76and morality 49–53prior understanding 56–8reflective equilibrium 47–53soundness 55and truth 48–9

communication-intention model 18, 79concept-words:

core/penumbra 96, 99–101and interpretation 99–103

constitution, moral legitimacy 144–9see also judicial reviewintergenerational issue 145interpretation argument 146–9moral expertise 146moral soundness 145–6self-validity by practice 147–8

constitutional documents 141–4abstraction 143generality 143longevity 142moral content 143

rigidity 142–3supremacy 142

constitutional interpretation 132, 141, 160and authority-capacity 92conserving v innovative interpretations

166–9conventional morality 160–2easy v hard cases 144enumerated rights 163–5originalism see originalism

constitutional moments 145nconstructive identification 80–2

in art 82–6and authority-capacity 87–94and identity 81–2, 93–4and intentions 79–80, 81

contextual knowledge 19–20conventional morality 160–2conventionalism 7–8core/penumbra 96, 99–101correct assertability 66–7counterfactual intentions 23–5critical law 74–7cultural relativity 77–8

Davidson, Donald 10, 11–17 passim, 44–5defeasibility 103–6

indexical predicates 106–12democracy 133–4, 153–4dependence thesis 88–9descriptive sociology 2detached legal statements 37–9disambiguation 103Dummett, M 10, 16–17, 66, 68, 107

easy v hard cases 91–2, 95, 96–8, 99–106, 107,121

constitutional law 144enumerated rights 163–5evaluative judgments 41–3, 79expertise justification 134, 135–6, 137–9

and morality 137–8time dimension 138

Finnis, John 67, 69Fish, Stanley 95

debate with Dworkin 55–61, 62, 64fit 54–5, 62–4formalism 95–8Frege, Friedrich 10, 101

Index

Fuller, Lon 95debate with Hart 99–103defeasibility 103–6and following a rule 112, 117–18

further intentions 127–9, 132, 157–8

genre-dependence 30–1Germany, Basic Law and Constitutional Court

163nGricean semantics 18–20, 21Grisewold v Connecticut 163ngroup intentions 123

Hart, HLA: The Concept of Law 1–2, 5debate with Fuller 99–103easy v hard cases 96–8, 99–106, 107and fidelity to law 105internal point of view 37, 38, 42, 71Rule of Recognition 69

hermeneutic thesis 36–9, 40, 44–5holism 47–8, 59–60, 61hypothetical intentions 130

identification see constructive identificationidentity 54

see also constructive identificationindexical predicates 72–3

defeasibility 106–12insinuation 129institutionalization 35–6integrity, and coherence 53–5, 76intentionalism see legislative intentintentions:

see also communication-intention model;legislative intent

application 129–32author’s 29–32and constructive identification 79–80, 81counterfactual 23–5further 127–9, 132group v shared 123–4hypothetical 130non-avowable 129, 132

internal point of view 37interpretation:

see also law as interpretationand meaning 9–10, 21–5radical 10–17stages 53–5

judicial review, legitimacy 149–55see also constitution, moral legitimacyargument from consensus 151–3as democratic decision 153–4legal expertise 150right-instrumentalism 154–5

Katz v United States 163nKelsen, H 2, 69, 71knowledge, and coherence 49Kuhn, TS 48

law as interpretation 27–8argumentative practices 39–43‘best possible light’ 28–33, 43charity principle 44–5concept words 99–103constructive model 28–33, 43, 44–5detached legal statements 37–9evaluative judgments 41–3, 79hermeneutic thesis 36–9, 40, 44–5internal point of view 37law as it is/ought to be 95, 104, 112motivation 32participants’ role 39–43possibilities 32–3principle of charity 44–5social practices 33–7theory and practice 36

legal expertise 150legal positivism 1–2, 69, 95

defeasibility 103–6easy v hard cases 91–2, 95, 96–8, 99–103,

121formalism 95–8law as it is/ought to be 95, 104, 112

legislative intent 119see also expertise justification; intentions;

normal justificationaims 127conventional practice 132democratic arguments 133–4justifications 132–41kinds of 126–32majority model 125–6representative intentions 122–6statutory interpretation 119–21

linguistic competence 13–14

Marbury v Madison 149meaning, and interpretation 9–10, 21–5,

112Meinong, Alexius von 66methodological concerns 1–2Moore, Michael 65, 71, 74, 76, 92–4, 95,

104–12 passimmoral change 162, 163morality:

and bivalence 67and coherence 49–53conventional 160–2and expertise 137–8, 146and legitimacy of constitution 144–9and originalism 156–9and realism 70

178 Index

natural law 65realism 66–71

natural-kind predicates 71–4non-avowable intentions 129, 132normal justification 88–90, 134–6

collective action 134–5, 136–7expertise 134, 135–6, 137–9, 146

normative rules 34–6normativity of law 37–9

originalism 155–60application intentions 157further intentions 157–8moral authority 156–9

passing theories 14–15pragmatics 17–21preemption thesis 88, 90principle of charity 12–13, 44–5prior understanding 56–8prior/passing theories 14–15Putnam, H 71–4, 106, 108, 110–11

Quine, WVO 12, 47–8, 61

radical interpretation 10–17Rawls, John 48, 51Raz, J 37, 38, 41, 71

authority doctrine 87–94, 134conserving v innovative interpretations 166–7constitutional validity by practice 147–8normal justification 88–90, 134–6rights as intermediary conclusions 151–3sources thesis 69

realism 66–8and law 68–71, 73–8and morality 70and reductionism 67–8, 71

reference theory 71–4reflective equilibrium 47–53relative expertise 134, 135–6, 137–9representative intentions see under legislative

intentrights:

enumerated 163–5

as intermediary conclusions 151–3right-instrumentalism 154–5

Root, M 44–5rules:

and interpretation 112, 116meaning and application 113–15quest for completeness 116–17use 115–16

Russell, Bertrand 66

Searle, J 18, 19–20, 40semantic natural law 65semantics 4–8, 64shared intentions 123Simmonds, NE 61, 62, 63skepticism 60–1

and legislative intent 123–4social practices 33–7soundness 55statutory interpretation see under legislative

intentStrawson, PF 18, 66

Tarskian model 12, 15theoretical disagreements 3–5truth, and coherence 48–9truth-conditional semantics 10–11Twin Earth example 72, 73

Ulysses metaphor 144–5United States:

Constitution8th amendment 16514th amendment 159

Supreme Court 92, 165, 166

vegetarianism metaphor 41–3

Waldron, Jeremy 154–5Weinrib, EJ 75–6Wittgenstein, Ludwig 10, 17, 101–2

on following a rule 112–18meaning, reference and criteria 107,

108–12

Index 179

andrei marmor interpretation and legal theory

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