Legal interpretation

Legal interpretation is a key concept in legal theory, because it is inherently connected to important conceptual, ontological and epistemological questions about law. Given the number of rival theories and the intense debates between their proponents, legal interpretation can be considered an “essentially contested concept”. It is reasonable to identify at least three or four main perspectives regarding these different theoretical questions. First, there are ontological questions: what does legal interpretation amount to? Is legal interpretation a matter of cognition (cognition of what?), a matter of decision or volition (will theory), or both (and if so, which aspect is dominant)? Second, there are epistemological questions: are there correct criteria for legal interpretation and, if so, what are they? Is legal interpretation concerned solely with the ordinary meaning of language, or are there peculiarly legal criteria? Do these legal criteria vary from one legal culture to another? It has also been widely discussed whether morality does or should influence legal interpretation. According to the competing perspectives, the morality in question might be objective and universal, relative to particular societies, or in some sense internal to the law—and its effect can be either to increase or to reduce the interpreters’ freedom. Third, the conceptual question concerns the distinction between the creation and the application of law: is legal interpretation a matter of pure discretion, of strict determinacy, or is there a third way? That question is related to some of the most fundamental principles of our contemporary Constitutional States, such as the separation of powers, legal certainty, the rule of law, and, more broadly, democracy.