17 Nov Meaning of Legal Philosophy
If, on the other hand, the interpretation of the law seeks to introduce a provision to the content of the law, the relevance of the different intentions of the legislature depends on the way in which those intentions affect the content of the law. Does the content of the law depend on the legal provision intended by the legislator? Or on what rule of law would a reasonable person in certain circumstances have intended to create a hypothetical coherent legislature in pronouncing the wording of the provision? Or perhaps what the legislator claims or has said? Normative arguments might be relevant at this stage. For example, there may be democratic reasons why legal intentions have a significant influence on the content of the law only if they are publicly available in certain authoritative sources. Treaty intentions exist and can be identified if relevant sources, such as committee reports, plenary debates, etc., identify the reasons for the relevant legislation. Of course, when sources identify contradictory justifications, the existence of conventional intentions becomes problematic. In principle, however, there are well-known objections to treating conventional intentions as consistent. As critics of legislative history have pointed out, it is relatively easy for legislators to insert purported legislative objectives into legislative history (cf. Scalia 1997, 29-37; Scalia and Garner, 2012, pp. 376-78; Easterbrook, 1990, pp. 448-49; 1994, 65). Such justifications are often advanced for external reasons, such as thwarting a law by making its objectives appear unacceptable in scope, or increasing the chances of enactment by ensuring that the objectives do not appear exceptional.
There is generally no reason to consider these justifications representative of the attitudes of members of the legislature, and they are not part of the legislative assembly`s vote. It is probably for this reason that most contemporary theorists attribute to conventional intentions a role relatively subordinate to legal interpretation. For a critique of reliance on conventional intentions, see Eskridge 1994, 18-21. This question is in fact one aspect of a larger question about the appropriateness of different types of legislative intent in light of what legal interpretation seeks to achieve. If, for example, legal interpretation seeks the linguistic meaning of relevant legal texts, then legal intentions have little or no relevance to semantic and communicative intentions. The linguistic meaning of a text does not depend on the legal rules that people want to create by accepting the text. [19] Similarly, intentions to use are only weak evidence of linguistic significance. On the other hand, communicative intentions, for example, are very relevant for pragmatically conveyed content such as speaker importance (see section 4.2 and entries on pragmatics; implicature; Paul Grice). In the literature on legal interpretation, theorists offer various arguments for their favorite theories of legal interpretation. As already mentioned, normative arguments based on moral values such as democracy, fairness and the rule of law are the most common. For example, both textualists and intentionalists make arguments based on democracy (see Eskridge 1994, 13; Eskridge and Frickey, 1990, p. 326; Barak, 2005, p.
248; Alexander, 2013, 540; Easterbrook, 1994, p. 63). According to Justice Scalia, “it is simply incompatible with democratic government, or even fair government, to allow the meaning of a law to be determined by what Parliament meant, not by what Parliament has proclaimed.” (Scalia 1997, 17.) More importantly, Hart argues that Austin overlooks the existence of secondary meta-rules that deal with primary rules themselves and distinguish full-fledged legal systems from primitive legal systems: such arguments for certain theories of legal interpretation are usually offered without explaining why those arguments are relevant, and often without considering other types of arguments. What is the appropriate way to choose between competing theories of legal interpretation? What types of arguments are relevant? How do we decide between competing arguments when they conflict with each other? It is unusual for theorists to deal explicitly with the question of how to choose between competing theories of interpretation. For exceptions, see, for example, Shapiro 2009 chap. 1, 12–13; Greenberg, 2017a; Fallon, 1999. Alternatively, the term “meaning” may be used for the information or content that a symbol expresses or represents. This symbolic meaning can be called meaning in the narrow sense. Mathematical symbols and semaphore flags have meanings in the narrow sense. Philosophy of law concerns the analytical and normative study of law and legal concepts.
These include the questions “What is law?” in relation to the nature of the law and fundamental questions about the scope and authority of the law. Legal philosophers criticize the standard assumptions of many legal practitioners for going beyond doctrinal legal analysis to gain new ideas and how potential problems might be solved. This article provides an overview of the most important approaches to legal philosophy, such as natural law theory, legal positivism, legal realism, economic analysis of law, and alternative approaches. The entry then provides an overview of important issues in legal philosophy, such as arbitration, legal argumentation, and the philosophy of criminal law. The widespread acceptance that legal interpretation seeks the meaning of a statute or constitutional provision most likely reflects a combination of (1) a lack of clarity as to the meaning in which the term “meaning” is used; 2) misunderstandings about what linguistic meaning is; (3) a fusion of the linguistic meaning of a provision with its contribution to the content of the Act (in short, its contribution); 4) and the assumption that the contribution of a provision is its linguistic meaning. [6] See Berman and Toh 2013, 547. Even demanding theorists who carefully distinguish between different types of linguistic meaning do not distinguish between the linguistic meaning of a provision and its contribution to the content of the law. [7] Surprisingly, much of the literature on legal interpretation does not address the fundamental question of the constitutive purpose of legal interpretation. [2] When evaluating methods of interpretation, authors tend to refer to all considerations that seem useful to them without addressing what legal interpretation is for. For example, Philip Frickey suggests that the way to evaluate purposivism is to ask “whether the interpretations that this theory produces are more valid for a legal system than literalist or intentionalist interpretations” (2006, 851-52). [3] As already mentioned, the type of object relevant appears to be legal or even political, certainly not semantic or communicative (see Eskridge 1993, 1744-45; 1994, 29; Hart and Sacks, 1994, p.
148; Barak, 2005; Dickerson, 1975, pp. 88-90; Manning, 2006; Scalia and Garner, 2012, pp. 35-39). The famous purposivist case of the Church of the Holy Trinity illustrates this point. The case concerned the question whether a law making it illegal for an alien to immigrate under a pre-existing contract for the performance of “works or services of any kind” applied to an attempt by a church to employ an English minister. The Supreme Court relied on evidence outside the text of the law to determine that the purpose of the law was limited to regulating the immigration of workers, although it recognized that the meaning of the words included the work of a clergyman. Thus, if Hart`s theory is true, in order to defend a preferred theory of legal interpretation, a theorist must either argue: (1) that the manner in which the theory contributes a provision to the content of the law is included in the recognition rule because it is treated as correct by a large majority of judges; or (2) the manner in which the doctrine contributes a provision to the content of the law is confirmed by a test which, in turn, is considered correct by a large majority of judges. [37] This would be a difficult task. (Since these are the only two possibilities that Hart`s account allows, to the extent that there is no consensus on a theory of legal interpretation and no consensus criteria validating a particular theory of interpretation, it is unclear which theory of interpretation is correct.) [38] The philosophy of law can be divided into analytical and normative jurisprudence. [5] Analytical jurisprudence seeks to define what is right and what is not by identifying the essential characteristics of the law.