Explaining meaning: towards a minimalist account of legal interpretation

Thesis

To interpret is to seek understanding. This formulation hides as much as it reveals and I propose to unpack it.

I argue that interpreting is only a part of what legal theorists and practitioners do. In Part I, I attempt an ‘in vitro’ analysis and present the bare concept of interpretation: interpretation is an activity that needs an object; interpreting is reasoning about meaning when there is a possibility of mistake about that meaning.

Part II focuses on two domains of interpretation: musical performance and adjudication. I rely on Joseph Raz’s account of interpretation as explanation or display and identify the former domain as a paradigm of display and the latter as a paradigm of explanation. Both are examples of interpretation for others and involve a claim to theoretical authority on the part of interpreters. But, unlike musicians- who interpret only works of music- judges interpret a great variety of objects. Musical interpretation is identified by its object, whereas legal interpretation is not. Legal interpretation is explanation of legal meaning.

I then discuss the tenets of the minimalist view of legal interpretation: (i) legal rules are not interpretable and legal texts are not primary objects of legal interpretation; (ii) there is a difference between interpretative authority (a form of theoretical authority) and legal authority (a form of practical authority) and interpretative conclusions can be theoretically authoritative without being exclusionary reasons for action; (iii) Interpreting and adjudicating are different activities. Interpretation explains, adjudication resolves. Legal interpreters do not produce legal rules: they are required to be guided by them.

Authors: Barradas de Freitas, R

• Publication date: 2014
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: Oxford University, UK
• Language: English
• Keywords: adjudication; legal meaning; theoretical authority; reasons for action; Interpretation; reasons for belief; practical authority; legal reasoning
• Subjects: Ethics and philosophy of law; Legal philosophy