https://orcid.org/0000-0002-5373-0571
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ABSTRACT
Central to the legal positivism of the nineteenth and the first half of the twentieth century was the dogma of the Ideal Legislator. Legal materials were to be interpreted as the work of an omniscient, coherent, consistent legislator. We argue that this dogma persists in the different guise of the competent speaker model, on which legal materials are the work of a competent speaker, who follows all the pertinent semantic and pragmatic rules. We will first lay out the Ideal Legislator dogma as applied in legal interpretation, arguing that this dogma does not limit interpretive discretion but rather amplifies it by hiding it under the veil of an inexistent, purely instrumental rationality. We will then turn to the competent speaker model, showing that, despite its apparent neutrality, it proves to be a reincarnation of the Ideal Legislator dogma, for it, too, amplifies interpretive discretion, only it hides it under the veil of an inexistent, purely linguistic rationality. Finally, we will inquire into the different types of rationality and their relations, arguing that there is always a choice and value judgment involved in ascribing rationality to legislators, and that these choices and judgments need to be carefully inspected and normatively justified.
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Notes
1 Norberto Bobbio, Positivismo giuridico (Giappichelli 1996).
2 See Cristina Redondo, ‘The Many Faces of Legal Positivism’ (2015) 44 Ragion Pratica 199.
3 Slawomira Wronkowska, ‘The Rational Legislator as a Model for the Real Lawmaker’ in Zygmunt Ziembiński (ed), Polish Contributions to the Theory and Philosophy of Law (Rodopi 1987).
4 Norberto Bobbio, ‘Le bon législateur’ in Le raisonnement juridique: Actes du congrès mondial de philosophie du droit et de philosophie sociale: Bruxelles, 30 aout–3 septembre 1971 (Emile Bruylant 1971).
5 Giacomo Gavazzi, ‘La motivazione delle leggi’ (1974) 39 Il Politico 173.
6 Legal-dogmatic research ‘is probably best described as research that aims to give a systematic exposition of the principles, rules and concepts governing a particular legal field or institution and analyses the relationship between these principles, rules and concepts with a view to solving unclarities and gaps in the existing law’ (Jan M Smits, ‘What Is Legal Doctrine? On The Aims and Methods of Legal-Dogmatic Research’ in Rob van Gestel, Hans-W Micklitz, Edward L Rubin (eds), Rethinking Legal Scholarship: A Transatlantic Dialogue (CUP 2017) 210).
7 See Álvaro Núñez Vaquero, ‘Dogmática jurídica’ (2014) 6 Eunomía 245.
8 Carlos S Nino, Consideraciones sobre la dogmática jurídica (UNAM 1989) 77–78.
9 ibid 86–87.
10 ibid 92–95.
11 See e.g., John P Dywer, ‘The Pathology of Symbolic Legislation’ (1990) 17 Ecology Law Quarterly 233.
12 Alf Ross, ‘Tû-tû’ (1957) 70 Harvard Law Review 812.
13 Leszek Nowak, ‘A Concept of Rational Legislator’ in Zygmunt Ziembiński (ed), Polish Contributions to the Theory and Philosophy of Law (Rodopi 1987).
14 Michał Krotoszyński, ‘Legislative History, Ratio Legis, and the Concept of the Rational Legislator’ in Verena Klappstein and Maciej Dybowski (eds), Ratio Legis: Philosophical and Theoretical Perspectives (Springer 2018).
15 See Bartosz Brozek and Radosław Zyzik, ‘The Theory and Practice of Lawmaking: A Polish Perspective’ in Krzysztof Wojtyczek (ed), Public Law: Twenty Years After; The Public Law after 1989 from Polish Perspective (Esperia 2012).
16 Jerzy Wróblewski, ‘Legal Decision and Its Justification’ (1971) 53–54 Logique et Analyse 409.
17 See Giovanni Sartor, ‘A Sufficientist Approach to Reasonableness in Legal Decision-Making and Judicial Review’ in Giorgio Bongiovanni, Giovanni Sartor, and Chiara Valentini (eds), Reasonableness and Law (Springer 2009).
18 John Griffiths, ‘Is Law Important?’ (1979) 54 New York University Law Review 339. Griffiths calls ‘direct’ effects of the law those that obtain in the observable behaviour of its addressees, namely, their compliance with the law, or their ‘conforming’ behaviour; the ‘indirect’ effects are the additional cascading effects the legislator seeks as an outcome of the direct effects, namely, the social, economic, or other consequences that stem from the prescribed conduct.
19 See Jerzy Wróblewski, ‘A Model of Rational Law-Making’ (1979) 65 Archiv für Rechts- und Sozialphilosophie 187.
20 Joseph R Gusfield, ‘Moral Passage: The Symbolic Process in Public Designations of Deviance’ (1967) 15 Social Problems 175, 177.
21 In this latter sense, legislators would be acting as ‘norm entrepreneurs’, i.e., actors interested in changing existing social norms. See Cass R Sunstein, ‘Social Norms and Social Roles’ (1996) 96 Columbia Law Review 903. On the interplay between legal and social norms and its ability to change the social meaning of actions, see Lawrence Lessig, ‘The Regulation of Social Meaning’ (1995) 62 University of Chicago Law Review 943.
22 Andrei Marmor, Philosophy of Law (Princeton University Press 2011) 153–57.
23 There are also technical terms in the law, to be sure, but they are usually defined precisely by ordinary language.
24 Mark Greenberg, ‘Legislation as Communication? Legal Interpretation and the Study of Linguistic Communication’ in Andrei Marmor and Scott Soames (eds), Philosophical Foundations of the Language in the Law (OUP 2011).
25 Max Radin, ‘Statutory Interpretation’ (1930) 43 Harvard Law Review 863, 863.
26 Claudio Luzzati, Del giurista interprete (Giappichelli 2016) 134.
27 Greenberg (n 24) 239.
28 ibid 253. For further criticism see Ronald Dworkin, Law’s Empire (Harvard University Press 1986) 317ff.; Heidi M Hurd, ‘Sovereignty in Silence’ (1990) 99 Yale Law Journal 945; Jeremy Waldron, Law and Disagreement (OUP 2004) 119ff; Ralf Poscher, ‘The Normative Construction of Legislative Intent’ (2017) 9 Droit et Philosophie 107.
29 As Goldsworthy says: ‘The distinction is between legislators’ actual intentions, which may be too difficult or impossible to ascertain and aggregate, and the legislature’s apparent intentions as “expressed” or “manifested” by readily accessible textual and contextual evidence’. Jeffrey Goldsworthy, ‘The Real Standard Picture and How Facts Make Law: A Response to Mark Greenberg’ (2019) 64 The American Journal of Jurisprudence 163, 180.
30 In this essay we present the competent speaker model as closely connected to intentionalism. However, according to Alexander and Prakash, an intention-free textualism is a conceptual impossibility, since no text can be interpreted without referring to the intentions of some author. Alexander and Prakash claim that what marks out textualism is the idea that we should look to the communicative intentions of a hypothetical author and not to the intentions of the actual author. Such a hypothetical author can be conceived in different ways, and one of these is precisely to consider her as an idealised author. If that is correct, then our criticisms also hold against versions of textualism which appeal to the intention of an idealised legislator. See Larry Alexander and Saikrishna Prakash, ‘“Is That English You’re Speaking?” Why Intention Free Interpretation Is an Impossibility’ (2004) 41 San Diego Law Review 967.
31 Grice, for example, singles out indeterminacy as a central feature of ordinary conversation. See Paul H Grice, Studies in the Way of Words (Harvard University Press 1989) 39–40.
32 Goldsworthy (n 29) 179. Actually, Goldsworthy concedes that judges sometimes reconstruct the competent speaker’s intention in different ways, but he seems to think that this is due to problems with the underlying linguistic theory. Thus, he says that ‘there is no good reason to exclude in advance the possibility that philosophers of language will one day prove that some version of OCT is superior to others’. Goldsworthy (n 29) 177–78.
33 Goldsworthy (n 29) 180, quoting Antonin Scalia, A Matter of Interpretation (Princeton University Press 2018) 31. A similar view is endorsed by Neale, speaking of stipulative determination of (legal) meaning. See Stephen Neale, ‘Determinations of Meaning’ in Ernest Lepore and David Sosa (eds), Oxford Studies in the Philosophy of Language vol. 2 (OUP 2021) 31.
34 Goldsworthy (n 29) 180.
35 Goldsworthy expressly limits his theses to Anglo-American jurisdictions. As far as some continental legal systems are concerned, it has been doubted that judges understand their own interpretive activity as aimed at retreiving legislative communicative intentions, however understood. Thus, in such systems, even the descriptive thesis that judges try to retrieve an objectified legislative intent seems to be false. See Reinhard Zimmermann, ‘Legal Methodology in Germany’ (2022) 26 The Edimburg Law Review 153, 172–73; Francesca Poggi, ‘La teoría comunicativa de la interpretación jurídica en los sistemas jurídicos constitucionalizados: Críticas teóricas y empíricas’ (2023) 58 Isonomía 57.
36 This is quite explicit in Capone, who also adheres to a version of the competent speaker model: ‘Since the rational law-maker cannot be self-contradictory, it does not matter whether the historical law-maker contradicted herself at various points. We interpret the text in such a way […] as to avoid contradiction’. Alessandro Capone, ‘The Role of Pragmatics in (Re)constructing the Rational Law-Maker’ in Alessandro Capone and Francesca Poggi (eds), Pragmatics and Law (Springer 2016) 153.
37 Goldsworthy (n 29) 187.
38 See, e.g., Christopher McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19 European Journal of International Law 655; Neomi Rao, ‘Three Concepts of Human Dignity in Constitutional Law’ (2011) 86 Notre Dame Law Review 183.
39 Goldsworthy (n 29) 188.
40 ibid 185. See also J. Goldsworthy, ‘Subjective versus Objective Intentionalism in Legal Interpretation’ in Heidi M Hurd (ed) Moral Puzzles and Legal Perplexities: Essays on the Influence of Larry Alexander (CUP 2018) 171–72.
41 Richard Ekins, The Nature of Legislative Intent (OUP 2019). Ekins combines the competent speaker model with Bratman’s account of collective intentionality. Although we cannot enter into this discussion here, the notion that Bratman’s account can be applied to legislative intention has been called into doubt. See Poscher (n 28); Damiano Canale and Francesca Poggi, ‘Pragmatic Aspects of Legislative Intent’ (2019) 64 American Journal of Jurisprudence 125; and Francesca Poggi, ‘Against the Conversational Model of Legal Interpretation’ (2020) 40 Revus 1.
42 See also Poscher (n 28) 128.
43 Fabrizio Macagno, Douglas Walton, and Giovanni Sartor, ‘Pragmatic Maxims and Presuppositions in Legal Interpretation’ (2018) 37 Law and Philosophy 69, 86.
44 Ekins (n 42) 206.
45 Capone (n 36) 147.
46 Joseph Raz, Practical Reasons and Norms (Hutchinson 1975); Thomas M Scanlon, What We Owe to Each Other (Belknap Press of Harvard University Press 1998); Maria Álvarez, ‘Reasons for Action: Justification, Motivation, Explanation’ in Edward N Zalta (ed), The Stanford Encyclopedia of Philosophy (Winter 2017 edn) <https://plato.stanford.edu/archives/win2017/entries/reasons-just-vs-expl> accessed 31 January 2022.
47 Even as good reasons, however, they may be no more than pro tanto reasons, in the sense that if they are to gain the status of ‘all-things-considered’ reasons in favour of something, it must be the case that they are not defeated or outweighed by normative reasons against that something. If, as noted, all normative reasons are good reasons, then a prima facie normative reason which does not actually provide a justification for the course of action in question is not, strictly speaking, a bad reason but rather a false one. See Jonathan Dancy, Practical Reality (OUP 2000) 1–5.
48 Jay David Atlas, Logic, Meaning, and Conversation: Semantical Underdeterminacy, Implicature, and Their Interface (OUP 2005) 73. As Atlas (68ff.) notes, even Grice, at places, seems to run the two questions together. Grice’s conversational maxims certainly impose some constraints of linguistic rationality (informativeness, brevity, orderliness, etc), but it would be a mistake to carry such constraints over from the implicated meaning to the speaker’s reasons for implicating it. In other words, according to Atlas, we have to distinguish the meaning we have to attribute to the speaker’s utterance in order to make it consistent with conversational maxims (implicatum) from the mental state that needs to be attributed to the speaker in order to rationally explain her utterance.
49 As far as logical irrationality goes, things are more complex. The so-called Davidson-Quine principle of charity, especially in Davidson’s version, requires us to ascribe some forms of logical rationality to others in order to understand their speech. The point is too complex to be discussed here, but two observations are worth making. First, even Davidson’s more radical statement of the principle (at least on some interpretations of it) has been understood to require a kind of rationality that in the main is linguistic, and in particular semantic, that is, it requires that utterances be interpreted in such a way that the speakers’ beliefs are as far as possible correct. Second, the principle does not exclude the possibility of there being circumstances in which we could even understand illogical and unreasonable utterances: if that is so, we could never conclude that someone has said something illogical, and yet we do.
50 Mario Jori, ‘Legal Pragmatics’ in Alessandro Capone and Francesca Poggi (eds), Pragmatics and Law: Philosophical Perspectives (Springer 2016).
51 Poscher (n 28) 122. Poscher offers two reasons why a single communicative intention has to be ascribed to all legislators as individuals and not to the legislature as a collective body. The first of these is to make sense of legislative voting: ‘If the vote of each legislator can be directed at a different law, voting as a preference aggregation mechanism loses its footing’ (Poscher (n 28) 122). The second is to avoid ontological costs: ‘Ascribing intentions to an entity comes with the ontological commitment to its existence’ (ibid 123). But if we bear in mind that the individual ascription in question is a fiction—or that only as a fiction can we ascribe a single communicative intention to each legislator—the first reason cannot be easily understood. If we recognise, as Poscher does, that each legislator can have a different communicative intention or no intention at all (she may not even have seen the text of the bill), then the voting-aggregation mechanism is to that extent irrational. As for the second reason, ontological costs can be avoided if we focus on a reasonable interpreter or, better yet, on the communicative intent ‘that a reasonable reader would gather’ (Goldsworthy (n 29) 180).
52 Poscher (n 28) 122.
53 ibid 124.
54 ibid
55 ibid 125.
56 ibid 129.
57 ibid 130.
58 Ralph Poscher, ‘The Hermeneutic Character of Legal Construction’ in Simone Glanert and Fabien Girard (eds), Law’s Hermeneutics: Other Investigations (Routledge 2017), 213.
59 ibid 216.
60 ibid 217.
61 ibid 217–18.
62 As we have seen, what is false is not always that judges conceive their activity as aimed at discovering the intention of an ideal legislator or a competent speaker. This may be true in some jurisdictions and in some historical moments. What is false is that this kind of activity is neutral and not value-driven, and that it leads to the identification of just one meaning. Besides being false, such a description is also misleading, because it conceals interpretive discretion. Believing in the truth of this description implies not being aware of one’s own and others’ value choices, passing them off as the product of a neutral methodology.
63 Atienza instead distinguishes five levels of legislative rationality: (R1) linguistic, (R2) systematic, (R3) pragmatic, (R4) teleological, and (R5) axiological or ethical. It is worth noting that, although only R5 is labelled by Atienza as ethical or axiological, all the other levels have some kind of embedded value that endows them with ethical import. Thus linguistic rationality (R1) pursues the value of communication through linguistic clarity and precision; systematic rationality (R2) pursues legal certainty and predictability; pragmatic rationality (R3) pursues the effectiveness of the laws (i.e., compliance); and teleological rationality (R4) pursues social efficacy (i.e., the ability to achieve policy goals). See Manuel Atienza, Contribución a una teoría de la legislación (Civitas 1997) 27–40.
64 Bobbio (n 4).
65 As we saw in section 3, no legal provision can be interpreted without reconstructing its legal context, and different aspects of this context need to be reconstructed. Among other things, this means interpreting a set of related provisions and constitutional principles and identifying legislative purposes, while also taking account of whatever case law and international agreements bear on the matter, depending on the legal tradition in question.
66 Atienza describes symbolic legislation as consisting of ‘laws made not to be complied with, or not to attain their declared purposes’. For him, in such cases, statutes tend to be obscure and indeterminate, thereby presenting us with a conflict between ‘linguistic’ rationality on the one hand and ‘pragmatic’ and ‘teleological’ rationality on the other. Atienza (n 63) 389.
67 See Louis Kaplow, ‘A Model of the Optimal Complexity of Legal Rules’ (1992) 11 Journal of Law, Economics, & Organization 150.
68 See Hanoch Dagan, ‘Lawmaking for Legal Realists’ (2013) Legisprudence (special issue) 187.
69 This does not amount to suggesting that judges and legal intepreters must always attribute rationality to each and every piece of legislation. Sometimes this is not possible, for as we have seen, different forms of rationality conflict. Other times attributing irrationality to a law is a means of salvaging the rationality of the system as a whole, as by declaring a law unconstitutional or otherwise annulling it because it is unreasonable (contrary to constitutional principles) or logically or instrumentally irrational. What we want to emphasise is that even the choice to deem a law irrational or unreasonable is, within certain bounds, discretionary.
70 An earlier version of this paper was presented at the ‘Analytic Philosophy meets Legal Theory’ International Conference (Krakow, September 2021) organized by the Jagiellonian University of Krakow. We would like to thank the organizers for inviting us and the convenors for their helpful comments, as well as three anonymous reviewers for their careful reading and valuable suggestions.