Legal interpretation as a rule-guided phenomenon

Paweł Banaś

pp. 255-264

in: Michał Araszkiewicz, Paweł Banaś, Tomasz Gizbert-Studnicki, Krzysztof Płeszka (eds), Problems of normativity, rules and rule-following, Berlin, Springer, 2015

Abstract

The content of law is derived from legal texts in a process of interpretation that is not random but is rather supposed to follow some rules. There are different types of rules of interpretation, and they govern different levels of every interpretation process. In describing this process, an analogy can be drawn between some notions present in the contemporary philosophy of language and legal interpretation. Rules of interpretation constitute legal content; i.e. they provide it with truth conditions. Rules of interpretation are given by a political theory adopted together with semantic theory grounded in social practice. Ontologically, the most problematic issue is the question of what makes an application of rules of interpretation correct or incorrect. It is part of a certain view of law to suggest that indeed there are always facts of some kind (either social practice or moral values) that guide the application of given rules of interpretation. This common picture of law is built on some presuppositions, among them normativity (guidance and justification), objectivity and classical realism. Within this view, it is also presupposed that there are right answers to questions about the content of law. It is argued that Kripkenstein's sceptical paradox poses a threat to this view, as it questions the existence of any facts that could guide any types of rules of interpretation. Such an ontological threat does not necessarily weaken the justificatory function of legal interpretation.