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Schiavello I. Interpretation A. Interpet: means to award a meaning to an ens ( an entity) which needs an ascription of meaning B.

Interpretation is the activity we engage in when we are trying to find the meaning of something ( Michael S. Moore) 1. There is a concept of interpretation which underpins all the possible meanings of term in different domains 2. Interpretation is always interpretation of something, so it is possible to add that interpretation identifies a relationship between 3 elements a. The intention of the author of something b. The meaning of the object of the interpretation quite apart from the intention of the author c. The word interpretation refers to the act of interpreting and to the product of interpretation Interpretation: we should determine what the law is A. Hart 1. few questions concerning human society have been asked with such persistence and answered by serious thinkers in so many diverse, strange, and even paradoxical ways as the question what is law 2. Law is a system of norms ( rules or principles) a. Legal interpretation is interpretation of norms 1) What is a norm? a) A written linguistic formulation B. The main object legal interpretation is language 1. A sign is something natural 2. A symbol is an artificial product of human beings a. Symbols are conventional 3. A language is the most highly developed, most efficacious and most complex system of symbols C. Difficulties in legal interpretation 1. In the case of vagueness, there is a central core in which the word applies and an area of uncertainty concerning the possible uses of the word in particular conditions a. A word is vague if its reference is indeterminate or undeterminate 2. A word is ambiguous when it has more than one referent a. Many potential interpretative problems linked to ambiguity can easily be worked out by looking at words in their context b. But when ambiguity is something more complex than mere homonymy, looking at the context many not suffice D. The object of legal interpretation is not so different from the object of literary interpretation ( Dworkin), but there are differences: 1. The law fulfils a practical function, that of regaulating social life, by prescribing or prohibiting given products a. Legal interpretation is not the end itself, but it is instrumental to the application of general norm to a concrete case b. The legal interpreter, unlike the literary interpreter is forced to choose among the various possible interpretations

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2 conflicting perspectives in legal interpretation: formalism and antiformalism A. Formalism 1. The only legal source was legislations which shoes the intention of a rational legislator 2. Legal codes were cosndeired precise, exhaustive and consistent, and so the job of judges and legal interpreters was reduced to identifying the rules contained in the code 3. It reduces interpretation to the intention of the author of the text and the meaning of the thing itself a. The task of the interpreter is a mechanical one, he should only correctly understand the meaning of the text itself b. The meaning of the norm is not the product of interpretation, but comes before interpretation itself 4. The model is deductive logic 5. It underestimates the fact that it is the interpreter that sets out correct premises a. Vagueness and ambiguity are vices completely absent in law ( tries to preserve the well-known ideal of certainty in law) B. Anti-formalism 1. There are no constraints at all on judges when they decide a judicial case 2. Presupposes a sort of interpretative scepticism a. Rules are too general, vague, ambiguous, for clearly dierecting the task of judging. 3. Treats the ideal of doing justice according to law as mere fiction and reduces law to what judges do in the courts 4. Jerome Frank: the law of any case is what the judge decides a. They decide on the ground of their own idea of justice, their mood, their favour for one or for the other of the parties involved in litigation b. Only after having decided in this way do judges find some legal justification to back up their decisions 5. It reduces interpretation to the intention of the interpreter 6. Alf ross: a legal decision is a combination of cognitive interpretation of the law and of an evaluative attitude of judges a. Norms alone cant determine legal decision 1) They only help us to predict what the judges will do in deciding the case.

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Dworkins three different conceptions of law and legal interpretation A. Conventionalism 1. Revisited form of interpretative formalism a. It distinguishes 2 different interpretative practices for easy and hard cases respectively 1) Easy cases: judges have to apply the law the mechanical way 2) Hard cases: no constraints on judges, so they do not apply pre-existing law, but are completely free to decide what they prefer a) Judges act as legislators, exercising strong discretion B. Pragmatism 1. Revised form of an anti-formalist theory a. Not interested in legal tradition at all

b. They think it would be possible to go beyond tradition in the name of positive change for society Dworkin constrasts this way of thinking, arguing that: - Civilization is impossible unless the decisions of some well-defined person or group are accepted by everyone as setting public standards that will be enforced if necessary trhough police power - If judges were seen to pick and choose among legislation, enforcing only those statues they approved, this would defeat the pragmatists goal because it would make things not better but much worse 2. Pragmatism is built on political conviction that only be treating each case in an individual way is it possible to ensure justice and/or efficiency C. Law as integrity 1. It denies the statements of the law as either a. The backward-looking reports of conventionalism b. The forward-looking programs of legal pragmatism 2. Legal claims are interpretative judgements a. They combine (a) and (b), they interpret contemporary legal practice seen as an unfolding political narrative. b. We understand legal reasoning only by seeing the sense in which they do both and neither V. The risk is the sceptical drift implied by the challenge of interpretative turn.

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