There are certain standards of legal interpretation. Interpretive directives are heterogeneous—both in terms of the issues they address and of the form. Not all authors consider the canons of interpretation to be norms like any other ones. Moreover, some claim that the term “incorrect interpretation” refers only to an arbitrarily chosen concept. I intend to investigate whether, despite the objections raised, interpretative directives can be said to have the status of legal norms. I wonder whether the so-called law of interpretation (...) (LoI), can provide a normative key to assess the correctness of the interpretation of legal texts. Text raises important questions concerning LoI. Firstly, the question of the status of interpretative directives and the problem of their defeasibility. Second, it refers to the problem of compliance with interpretative directives and the consequences of their violation, drawing attention to the two contexts of legal interpretation (the context of discovery and justification) and to the fact that canons of interpretation can constitute a standard for the correctness of the interpretative procedure and for its result. Third, this paper refers to the problem of vagueness of interpretative directives, analysing the advantages of maintaining it to a certain extent, as well as the possibilities of reducing it in the rest. The fourth issue analysed is the multiplicity of canons and the lack of a defined hierarchy of them. I conclude by pointing out that LoI should provide a model by which to assess the correctness of an interpretation. (shrink)

The purpose of this chapter is twofold. On the one hand, our goal is theoretical, as we aim at providing an instrument for detecting, analyzing, and solving ambiguities based on the reasoning mechanism underlying interpretation. To this purpose, combining the insights from pragmatics and argumentation theory, we represent the background assumptions driving an interpretation as presumptions. Presumptions are then investigated as the backbone of the argumentative reasoning that is used to assess and solve ambiguities and drive (theoretically) interpretive mechanisms. On (...) the other hand, our goal is practical. By analyzing ambiguities as stemming from different presumptions concerning language or, more importantly, expected communicative roles and goals, we can use communicative misunderstandings as the signal of deeper disagreements concerning mutual expectations or cultural differences. This argumentation-based interpretive mechanism will be applied to the analysis of medical interviews in the area of diabetes care, and will be used to bring to light the sources of misunderstanding and the different presumptions that define distinct cultures. We will consequently illustrate the analytical tools by identifying and distinguishing the various types of ambiguity underlying misunderstandings, and we will address them by describing the communicative intentions ascribed to the ambiguous utterances. (shrink)

The notions of inference and default are used in pragmatics with different meanings, resulting in theoretical disputes that emphasize the differences between the various pragmatic approaches. This paper is aimed at showing how the terminological and theoretical differences concerning the two aforementioned terms result from taking into account inference and default from different points of view and levels of analysis. Such differences risk making a dialogue between the theories extremely difficult. However, at a functional level of analysis the different theories, (...) definitions, and approaches to interpretation can be compared and integrated. At this level, the standardization of pragmatic inferences can be regarded as the development of a specific type of presumptions, used to draw prima-facie interpretations. (shrink)

This paper proposes an argumentation-based procedure for legal interpretation, by reinterpreting the traditional canons of textual interpretation in terms of argumentation schemes, which are then classified, formalized, and represented through argument visualization and evaluation tools. The problem of statutory interpretation is framed as one of weighing contested interpretations as pro and con arguments. The paper builds an interpretation procedure by formulating a set of argumentation schemes that can be used to comparatively evaluate the types of arguments used in cases of (...) contested statutory interpretation in law. A simplified version of the Carneades Argumentation System is applied in a case analysis showing how the procedure works. A logical model for statutory interpretation is finally presented, covering pro-tanto and all-things-considered interpretive conclusions. (shrink)

The fields of linguistic pragmatics and legal interpretation are deeply interrelated. The purpose of this paper is to show how pragmatics and the developments in argumentation theory can contribute to the debate on legal interpretation. The relation between the pragmatic maxims and the presumptions underlying the legal canons are brought to light, unveiling the principles that underlie the types of argument usually used to justify a construction. The Gricean maxims and the arguments of legal interpretation are regarded as presumptions subject (...) to default used to justify an interpretation. This approach can allow one to trace the different legal interpretive arguments back to their basic underlying presumptions, so that they can be compared, ordered, and assessed according to their defeasibility conditions. This approach allows one to understand the difference between various types of interpretive canons, and their strength in justifying an interpretation. (shrink)

The classification of a state of affairs under a legal category can be considered as a kind of con- densed decision that can be made explicit, analyzed, and assessed us- ing argumentation schemes. In this paper, the controversial conflict of opinions concerning the nature of “marriage” in Obergefell v. Hodges is analyzed pointing out the dialecti- cal strategies used for addressing the interpretive doubts. The dispute about the same-sex couples’ right to marry hides a much deeper disa- greement not only (...) about what mar- riage is, but more importantly about the dialectical rules for defining it. (shrink)

Loci of pragmatic intrusion signal the tension between semantics and pragmatics. -/- .

This article analogises political representation to legal interpretation. It then applies the analogy to the hitherto neglected question of what political representation means for deliberative constitutionalism. The upshot is a conception of deliberative constitutionalism that, while uncompromisingly grounded in the reasoned expression of the preferences of a polity's constituents through deliberative democratic institutional innovations, mandates representatives to translate those preferences into general and abstract constitutional law. It thus enhances the deliberative contribution of citizens in the determination of constitutional meaning, while (...) preserving the value of representative institutions. (shrink)

The article presents so-called “derivational” theory of legal interpretation and analyzes its basic assumptions. The derivational theory of legal interpretation is still little known outside of Poland. The article is divided into two parts. The first part is presenting the normative model of legal interpretation according to the derivational theory. In the second part, the basic assumptions and features of the theory are analysed in context of some other approaches to legal interpretation. The author argues that there are two levels (...) of the derivational theory: local and universal. The local level of theory is related to the fact that it was designed for Polish legal system and legal culture. However, beyond its local features, the derivational theory is presenting strong theoretical framework and some significant universal ideas about legal interpretation. This creates universal level that can be called the “hard core” of the theory. The author characterizes the elements of this hard core, and in particular the most important element: the idea that the legal interpretation consists in the reconstruction of legal norms from legal provisions. (shrink)