In their critique of intentionalism, contemporary textualists have emphasized the disorder and opacity of the legislative process and the importance of compromise in that process (see Manning 2001, 71-78; 2003, 2408-19; Easterbrook, 1983, pp. 540-41; 1988, 63–64; 1990, 444–48; 1994, 68; 2010, 916, 922; 2012, xxii; Scalia and Garner, 2012, pp. 392-93). Individual legislators who originally propose legislation may have a specific legal intent – to enact a particular legal standard. However, compromises must be made to ensure the adoption of legislation. Legislative agreements are often verbal rather than substantive, i.e. they often take the form of adding certain words to legislation without reaching agreement on the net impact of a change in wording. Indeed, compromises often succeed precisely because controversial issues remain opaque and unresolved. In the case of complex and controversial legislation, there may be no reason to believe that there is a coherent and findable legal intent. (This is not to say that there is no semantic intention – to use these words – or a minimal intention – to change the law by passing this law.) Even leaving aside the metaphysical question of what would constitute a collective intention in the circumstances, it is often extremely implausible that there is a collective legal intent and that the courts, if it did, could reliably identify it. Another significant departure from the simple assumption that the correct theory of legal interpretation simply follows true legal theory would take into account the abilities and limitations of legal interpreters. The consideration of limited rationality raises important questions for a theory of legal interpretation. Judges, to take a particularly large group, work with limited time and information and they are subject to human cognitive limitations and biases that are much discussed in recent literature.
See the entry Bounded rationality. Given these facts, it may be counterproductive for judges to work directly to treat sources of law in a way that contributes to justice in the same way that they actually contribute to it. Overall, they could better identify precisely the ways in which sources contribute to the content of the law if they instead follow a relatively simple rule of thumb. [41] Similarly, we may also have special accounts for other participants in the justice system, such as legislators, law enforcement officers and police officers. A legal theory – actually a family of theories – offers a natural explanation for the relevance of typical normative arguments. The theories of this family hold that legal obligations are constituted by certain authentic normative (or moral) obligations. [40] For example, according to moral impact theory, the relevant obligations are, broadly defined, those arising from the actions of legal institutions (Greenberg 2014). At the fundamental level, therefore, all relevant values determine which are the determinants of the content of the law – and how they contribute to the content of the law. For example, the contribution of a law to the content of the law is the impact of its adoption in light of fairness, democracy and other relevant values on our duties (and rights, permits, powers, etc.). Therefore, in terms of moral impact theory, it is a natural way of arguing for a method of interpretation, of arguing that the way in which the method of interpretation uses sources to contribute to the content of the law is broadly supported by the relevant values. In the United States, there are several methods of legal interpretation: Surprisingly, most 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] In principle, however, a proponent of another theory of legal interpretation, such as textualism, might argue that Dworkin`s legal theory actually supports textualism. The theorist should argue that textualism is the best method of identifying the set of principles that best justify legal practice. To return to Hartian positivism, normative factors can only play a role if there is a consensus among judges that does the necessary work (or a consensus on another criterion that sings these normative factors). If, as is likely, there is no consensus among the judges doing the necessary work, Hart`s theory implies that normative factors play no role in determining the content of the law. In this case, whether a method of interpreting the law is supported by democracy, fairness or other values has no bearing on whether it determines precisely the content of the law. A related point is that many legal interpretations seem to involve value judgments. If we start from a legal metaphysics according to which the content of law cannot depend on such value judgments – as some legal theorists do – then we will think that legal interpretation must not be simply a search for the contributions of provisions to law. Legal interpretation is familiar to lawyers, judges and legal theorists.
Public and private disputes of paramount importance revolve around questions of interpretation of legal texts. Nevertheless, there are deep and pervasive controversies about the correct theory or method of legal interpretation. One reason for this controversy is that, perhaps surprisingly, there is no consensus on the more fundamental question of what legal interpretation is – in particular, what its constitutive purpose is. For example, does legal interpretation seek the linguistic meaning of legal texts, the best possible resolution of disputes, or the contribution of legislation to the content of the law? Without progress on this fundamental issue, progress cannot be expected in understanding the correct method of interpreting the law.
