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The Interpretation of Court Opinions
Published online by Cambridge University Press: 15 February 2022
Abstract
What kind of argument is acceptable for this or that interpretation when the text is a court’s opinion? There is plenty of discussion about literary, constitutional, and statutory interpretation. Is it acceptable to import their tenets or theories to the interpretation of court opinions? This paper goes over the leading views on literary, constitutional, and statutory interpretation to compare them with the needs of the court opinions’ interpretation. The author argues that one must interpret court opinions according to the pragmatic model and endeavor to understand the meaning the judge intended for the text.
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- © The Author(s), 2022
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1. Here are some reasons. The interpretation shows differences depending on the opinion’s use: (a) as the decision of the particular original dispute, or (b) as a precedent in future conflicts. One could call that ‘layers of interpretation.’ In the concrete case, it is narrow and particularized; it rules the interests of the parties. See Charles W Collier, “Precedent and Legal Authority: A Critical History” (1988) 1988:5 Wis L Rev 771 at 800-24. As a precedent, it presents broad and generalizing tendencies; it rules (or has a persuasive effect) “as regards the world at large.” Sir John William Salmond, Salmond on Jurisprudence (Sweet & Maxwell, 1957) at 223. Accordingly, in the first case, the interpreter looks for the decisions of all the legal relations brought to the court, be they well or poorly reasoned. In the second case, the interpreter looks for the ratio decidendi, not as a rule entirely based on the text, but resulting from its historical fortune and development (similar to statutes or the constitution). See Neil Duxbury, The Nature and Authority of Precedent (Cambridge University Press, 2008) at 105. On the ‘authorship’ of precedents, Alexander and Sherwin say: “It appears, therefore, that no effective precedent rule exists until a further round of acceptance occurs, with all endorsers concurring in the meaning of the rule as posited by some prior judge.” Larry Alexander & Emily Sherwin, Demystifying Legal Reasoning (Cambridge University Press, 2008) at 58. Last, precedents attain different influences (or forces) in diverse systems; they are usually open-textured; and they can be part of a country’s legal order (a coherent whole, under a systemic view). For similar reasons, I do not deal with the interpretation of opinions in KapMuGs (Germany), IRDRs (Brazil), direct actions of unconstitutionality, reference procedures (EU), class actions, and the like.
2. By ‘literary,’ I mean imaginative writings, works like poems and novels, although even court opinions could be considered literature in a broader sense. On court opinions as a literary genre, see Robert A Ferguson, “The Judicial Opinion as Literary Genre” (1990) 2:1 Yale JL & Human 201.
3. Umberto Eco, The Limits of Interpretation (Indiana University Press, 1994) at 50.
4. Undoubtedly courts have authority to resolve disputes. But I am not implying that only communications from people with authority deserve a pragmatic interpretation. I advocate that intentionalism is not born from authority (either influential, practical, or theoretical). We have reasons to look for authorial intentions when chatting with a friend, the doorkeeper, a stranger, and so on. I return to it in Section IV.
5. There would be room to think about artificial intelligence, ghostwriters, and nonsense opinions in this context. Still, the themes are too large to be treated here in association with questions concerning interpretation and intentionality.
6. In the following sections, I work with only two of Eco’s intentiones. I am not considering intentio lectoris (literally, reader’s intention). Intentio lectoris, in Eco’s words, is what the “addressees find in it [i.e., in a text] by virtue of their own systems of signification or their wishes and drives.” See Umberto Eco, “Intentio Lectoris” (1988) 2:12 Differentia: Rev of Italian Thought 147 at 154. I believe that intentio lectoris has little to say about the goal of the interpretation of court opinions (a prescriptive task), despite its importance for the study of a text’s effects on its readers (a descriptive study). It is worth noting that the intentio lectoris approach can be of use when a case is revisited several times by subsequent decisions that establish its ratio decidendi until it becomes part of case-law. Still, the interpretation of decisions as precedents is outside the scope of this article.
7. See Jonathan R Siegel, “The Inexorable Radicalization of Textualism” (2009) 158:1 U Pa L Rev 117 at 131; Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law, ed by Amy Gutmann (Princeton University Press, 1997) at 17, 29, 31.
8. Paul Brest, “The Misconceived Quest for the Original Understanding” (1980) 60:2 BUL Rev 204 at 204.
9. See, generally, supra note 7.
10. Antonin Scalia & Bryan A Garner, Reading Law: The Interpretation of Legal Texts (Thomson/West, 2012) at 234.
11. Stanley Fish, “Intention and the Canons of Legal Interpretation”, The New York Times (16 July 2012), online: https://opinionator.blogs.nytimes.com/2012/07/16/intention-and-the-canons-of-legal-interpretation/.
12. It is worth noting that words can have several ordinary meanings. For instance, the verb ‘to mark’ has more than 80 possible meanings in Google Translate. On problems with the so-called ‘plain meaning rule,’ also known as the ‘literal rule,’ see Fish, ibid; DG Gifford, WL Reynolds, & AM Murad, “A Case Study in the Superiority of the Purposive Approach to Statutory Interpretation” (2012) 64:2 SCL Rev 221. About polysemy, see Ingrid Lossius Falkum & Agustin Vicente, “Polysemy: Current Perspectives and Approaches” (2015) 157 Lingua 1.
13. That is, roughly, the model of ‘pragmatic interpretation,’ better described in Marcelo Dascal, Interpretation and Understanding (John Benjamins, 2003) at 330-31. I discuss it in more detail in Section IV.
14. Maybe it is not a fair comparison, but this classic tale of Mulla Nasreddin comes to mind to illustrate the situation: “Mulla had lost his ring in the living room. He searched for it for a while, but since he could not find it, he went out into the yard and began to look there. His wife, who saw what he was doing, asked: ‘Mulla, you lost your ring in the room, why are you looking for it in the yard?’ Mulla stroked his beard and said: ‘The room is too dark and I can’t see very well. I came out to the courtyard to look for my ring because there is much more light out here.’” Houman Farzad, Classic Tales of Mulla Nasreddin, translated by Diane L Wilcox (Mazda Publishers, 1989) at 26.
15. See Umberto Eco, Lector in Fabula (Grasset, 1985); Umberto Eco, Interpretation and Overinterpretation (Cambridge University Press, 1992) [Eco, Interpretation].
16. Ibid at 78.
17. Ibid at 69.
18. Andrei Marmor, Interpretation and Legal Theory, revised 2d ed (Hart, 2005) at 22.
19. Ibid.
20. William Starr, “Counterfactuals” in Edward N Zalta, ed, The Stanford Encyclopedia of Philosophy (2019) (Fall 2019 ed), online: https://plato.stanford.edu/archives/fall2019/entries/counterfactuals/.
21. Gideon Rosen distinguishes ‘textualism’ from ‘hypothetical intentionalism’ and remarks that “[t]extualism and hypothetical intentionalism will yield the same result in many cases. This is unsurprising, since one of the main sources of evidence available to the hypothetical interpreter is the public language meaning of the contract. The views will yield different verdicts when the hypothetical interpreter has access to evidence that trumps or supplements this linguistic evidence.” Gideon Rosen, “Textualism, Intentionalism, and the Law of the Contract” in Andrei Marmor & Scott Soames, eds, Philosophical Foundations of Language in the Law (Oxford University Press, 2011) 130 at 141.
22. One should not confuse my ‘model judge’ with Dworkin’s. I borrowed mine from Eco’s model author. Mine is the hypothetical author of a court’s opinion and works as a strategy for the use of its interpreters. Dworkin’s ‘model judge’ depicts a style of adjudication. Hercules is the interpreter of the law as a coherent whole (or integrity) and is a strategy for judges’ use, a strategy to decide. See Ronald Dworkin, Law’s Empire (The Belknap Press of Harvard University Press, 1986) at 243.
23. Eco, Interpretation, supra note 15 at 65.
24. E D Hirsch, Jr, Validity in Interpretation (Yale University Press, 1967) at 6-23.
25. Ibid at 14.
26. Ibid at 17.
27. Ibid at 18.
28. Ibid.
29. Ibid at X.
30. Jukka Mikkonen, The Cognitive Value of Philosophical Fiction (Bloomsbury, 2013) at 113.
31. See HLA Hart, Punishment and Responsibility: Essays in the Philosophy of Law (Oxford University Press, 2008) at 113-35.
32. See Gregory Klass, “Intent to Contract” (2009) 95:6 Va L Rev 1437.
33. See Garratt v Dailey, 279 P (2d) 1091 (Wash Sup Ct 1955).
34. On the differences and similarities between intentions in Law and in Philosophy, see R A Duff, “Intentions Legal and Philosophical” (1989) 9:1 Oxford J Leg Stud 76.
35. Joseph Raz, Between Authority and Interpretation: On the Theory of Law and Practical Reason (Oxford University Press, 2009) at 279.
36. Again, this can be otherwise in the interpretation of laws. See Gerald C MacCallum, Jr, “Legislative Intent” (1966) 75:5 Yale LJ 754.
37. Lon L Fuller, The Morality of Law, revised ed (Yale University Press, 1969) at 145.
38. “Teleological interpretation means interpretation according to the recognizable purposes and the basic idea of a regulation.” My translation from Karl Larenz & Claus-Wilhelm Canaris, Methodenlehre der Rechtswissenschaft (Springer-Lehrbuch, 1995) at 153. More bibliography in Aharon Barak, Purposive Interpretation in Law, translated by Sari Bashi (Princeton University Press, 2005) at 86.
39. Emilio Betti, Interpretação da Lei e dos Atos Jurídicos (WMF Martins Fontes, 2007) at 207.
40. My translation from ibid at 94. In a broader sense, note Jhering’s motto: “Der Zweck ist der Schöpfer des ganzen Rechts” (The purpose is the creator of all law). Rudolph von Jhering, Der Zweck im Recht (Nobel Press, 1898) at 2.
41. United States v Shirey, 359 US 255 (1959) at 2.
42. Lon L Fuller, “Positivism and Fidelity to Law—A Reply to Professor Hart” (1958) 71:4 Harv L Rev 630 at 664.
43. Henry M Hart, Jr & Albert M Sacks, The Legal Process: Basic Problems in the Making and Application of Law, ed by William N Eskridge, Jr & Philip P Frickey (Foundation Press, 1994) at 1124.
44. According to Barzun, “Fuller devoted much more attention than did Hart or Sacks to methodological questions in jurisprudence specifically and in social science more generally. He argued in various places that one could not offer purely descriptive accounts of law, because law was a purposive activity.” Charles L Barzun, “The Forgotten Foundations of Hart and Sacks” (2013) 99:1 Va L Rev 1 at 36.
45. Fuller, supra note 42.
46. William Twining & David Miers, How to Do Things with Rules: A Primer of Interpretation, 4th ed (Butterworths, 1999) at 152. The authors refer to rules and not precisely to statutes.
47. Barak, supra note 38 at 88.
48. Ibid.
49. Samuel L Bray, “The Mischief Rule” (2021) 109:5 Geo LJ 967 at 973 [emphasis added].
50. Hart, Jr & Sacks, supra note 43 at 1374, 1378.
51. Alexander & Sherwin, supra note 1 at 132-39.
52. Mauro Cappelletti, Juízes Legisladores? Sergio Antonio Fabris, ed, translated by Carlos Alberto Alvaro de Oliveira (SAFE, 1993) at 20, 128.
53. This is not a specific case, but an amalgam of several ones found in the Brazilian courts. For instance: 50010842220174047011, 50107199020184047205, 10004433320148260554, and 50228203920194030000 (Brazilian CNJ unified identification of lawsuits).
54. The issue may seem easy to solve, but hundreds of thousands of lawsuits still deal with it in Brazilian courts after more than ten years since the first cases.
55. Hans-Georg Gadamer, Truth and Method, 2d revised ed, translated by Joel Weinsheimer & Donald G Marshall (Bloomsbury Academic, 2004) at 367.
56. Thomas R Lee & Stephen C Mouritsen, “Judging Ordinary Meaning” (2018) 127:4 Yale LJ 788 at 824.
57. Ludwig Wittgenstein, Philosophical Occasions: 1912-1951, James C Klagge & Alfred Nordmann, eds (Hackett, 1993) at 397. See also Dascal, supra note 13 at IX.
58. William K Wimsatt, Jr & Monroe C Beardsley, “The Intentional Fallacy” in William K Wimsatt, The Verbal Icon: Studies in the Meaning of Poetry (The University Press of Kentucky, 1954) 3 at 5 [emphasis added].
59. Art 487, II of Law No 13.105, Code of Civil Procedure (Brazil); Norman Siebrasse, “The SCC Did Not Hold the Viagra Patent to Be Void in Rem”, Sufficient Description (22 Jan 2013), online: www.sufficientdescription.com/2013/01/the-scc-did-not-hold-viagra-patent-to.html.
60. Eco, Interpretation, supra note 15 at 67.
61. Hirsch, supra note 24 at 1-6.
62. Arthur Kaufmann, “Preliminary Remarks on a Legal Logic and Ontology of Relations” in Patrick Nerhot, ed, Law, Interpretation, and Reality (Springer Netherlands, 1990) 104 at 114.
63. Dworkin, supra note 22 at 239.
64. There is a vivid discussion on the importance of the authority to intentionalism (in statutory interpretation). See, for instance, Marmor, supra note 18 at 132-39; Heidi M Hurd, “Interpretation Without Intentions” in George Pavlakos & Veronica Rodriguez-Blanco, eds, Reasons and Intentions in Law and Practical Agency (Cambridge University Press, 2015) 52 at 55-56; Raz, supra note 35 at 285.
65. See Dascal, supra note 13 at 13; Peter Pagin, “When does Communication Succeed? The Case of General Terms” in Teresa Marques & Åsa Wikforss, eds, Shifting Concepts: The Philosophy and Psychology of Conceptual Variability (Oxford University Press, 2020) 51; Alexander & Sherwin, supra note 1 at 131-66.
66. Norms can be hypothetical (conditioned) or categorical (unconditioned). The first species is the one that, with rare exceptions, is found in the legislative technique (“when A is, B ought to be”), and the second species is usually found in judicial decisions (“the thief Schulze ought to be put in jail”). See Hans Kelsen, General Theory of Law and State (Transaction, 2005) at 38-39 [Kelsen, Law and State]; Hans Kelsen, Teoria Geral das Normas, Sergio Antonio Fabris, ed, translated by José Florentino Duarte (SAFE, 1986) at 25.
67. See Kelsen, Law and State, supra note 66 at 135; Jerzy Wróblewski, The Judicial Application of Law, Zenon Bankowski & Neil MacCormick, eds (Springer, 1992) at 317.
68. Gadamer, supra note 55.
69. Eco, Interpretation, supra note 15 at 67.
70. Ferguson, supra note 2 at 204.
71. Paul Grice, Studies in the Way of Words (Harvard University Press, 1991) at 26.
72. My view of the conversational approach is roughly based on Dascal, supra note 13 at 331. See also Noël Carroll, “Art, Intention, and Conversation” in Gary Iseminger, ed, Intention and Interpretation (Temple University Press, 1992) 97.
73. Dascal, supra note 13 at 330.
74. Ibid at 415, 562-93.
75. Candace L Sidner, “What the Speaker Means: The Recognition of Speakers’ Plans in Discourse” (1983) 9:1 Computers & Mathematics with Applications 71 at 72.
76. See United States v One Book Entitled Ulysses by James Joyce, 72 F (2d) 705 (2nd Cir 1934).
77. On this issue, see Daniel Del Gobbo, “Unreliable Narration in Law and Fiction” (2017) 30:2 Can JL & Jur 311.
78. I do not deny that in statutory interpretation, the interpreter can deal with errors of expression as well. Even textualists have strategies to that end. My point is that the idea of an intention guides the interpreter in these situations. The following is a case of statutory interpretation: in Amalgamated Transit Union Local 1309 v Laidlaw Transit Services, Inc., 435 F (3d) 1140 (9th Cir 2006), the court interpreted “not less than” as meaning “not more than,” because the provision would not make sense otherwise.
79. John Perry, “Directing Intentions” in Joseph Almog & Paolo Leonardi, eds, The Philosophy of David Kaplan (Oxford University Press, 2009) 187 at 191.
80. 554 US 570 (2008) at 52 [emphasis in original].
81. Marat Shardimgaliev, “Implicatures in Judicial Opinions” (2019) 32:2 Intl J Sem L 391 at 402.
82. Izabela Skoczeń, Implicatures within Legal Language (Springer, 2019) at 21.
83. Jeffrey Goldsworthy, “Moderate versus Strong Intentionalism: Knapp and Michaels Revisited” (2005) 42:2 San Diego L Rev 669 at 670. Professor Goldsworthy writes about statutory interpretation. I do not see a problem in quoting him to talk about the interpretation of court opinions. I think that the interpretation of judicial opinions is not dependent on the objectives of the statutory interpretation. That is to say: what is valid for statutory interpretation is not necessarily valid for interpreting judicial decisions. Their respective theories, though, are not exclusive. That does not mean that the interpretative approaches cannot be the same: it just means that they are not necessarily the same.
84. See Perry, supra note 79.
85. Goldsworthy, supra note 83 at 680.