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02/12/2017

Mark Greenberg: What Makes a Method of Legal Interpretation Correct?
Michael Ramsey

Mark Greenberg (UCLA School of Law and Department of Philosophy) has posted What Makes a Method of Legal Interpretation Correct? Legal Standards vs. Fundamental Determinants (Harvard Law Review Forum, forthcoming) on SSRN.  Here is the abstract:      

William Baude and Stephen Sachs argue for the importance of the “law of interpretation” – legal standards that govern how statutes, constitutional provisions, and other legal materials are to be interpreted. Their article begins by following and developing a cluster of arguments I have elaborated in recent work – arguments that emphasize the importance of distinguishing between, on the one hand, the linguistic meaning of legal texts and, on the other, the content of the law. But Baude and Sachs’s view about the most important implication of these arguments is very different from mine. Their central message is a practical, lawyerly one: we can avoid the abstract and theoretical complexities and normative and linguistic disputes that have typified central debates over legal interpretation by instead looking to law for the answers. Baude and Sachs’s goal here is not to take a position on what the law of interpretation requires with respect to the relevant issues, but to argue that the answers are there to be found in the law. 

It is an important and understudied idea that legal interpretation can, to an extent, be governed by ordinary legal standards. And Baude and Sachs develop the idea in fruitful and interesting ways. The dependence of legal interpretation on legal standards is relatively limited and superficial, however. As I will argue, the crucial point is that answers to questions about legal interpretation depend on how the content of the law is determined at a more fundamental level than legal standards.

Once we carefully distinguish between the linguistic meaning of the legal texts and the content of the law, it becomes clear that the main goal of legal interpreters is to find the latter. Because legal interpretation seeks the content of the law, which methods of legal interpretation are correct depends ultimately on the way in which the content of the law is determined by more basic facts (including, for example, facts about the enactment of statutes and the decision of cases). There can be legal standards that specify how these more basic facts determine the content of the law, but such legal standards play a subsidiary role in the full explanation of how the content of the law is determined. For the legal standards that make up the law of interpretation – like other legal standards – themselves depend on the way in which the content of the law is determined at the fundamental level – the province of jurisprudential theories such as those of HLA Hart and Ronald Dworkin (theories of law, for short). As a result, one cannot resolve key questions about Baude and Sachs’s law of interpretation – to what extent and why law can alter the way in which the content of the law is determined, what that “law of interpretation” requires, how to find it, and how much of it there actually is – without addressing the central jurisprudential question of how the content of the law is determined. Attempting to explain how legal standards are determined by pointing to further, second-order legal standards only pushes back a step the core question of how the more basic facts determine legal standards.