Statutory Interpretation as Argumentation

Abstract

Interpretation is regarded as the passage from a legal text to a legal rule (Hage 1996, 214;Tarello 1980), namely a normative premise under which an individual case is "subsumed" or classified (see Moreso and Chilovi, chapter 2, part III, this volume, on "Interpretive Arguments and the Application of the Law"). This passage can be compared to the common understanding and processing of utterances in ordinary conversation (Smolka and Pirker 2016), in which semantic content is only a vehicle for getting to the "speaker's meaning" or what is communicated-a richer content "to which meaning and obvious background assumptions have both contributed" (Soames 2008, 411; see also Butler 2016;Carston 2013;Horn 1995;Miller 1990). Legal interpretation does not differ essentially from ordinary interpretation, even though legislative speech is one-sided (there is nobody who can immediately answer back) and the basic presumption governing such texts is that the author used the language to convey ideas (Sinclair 1985, 390). However, pragmatic principles constitute a dimension of rationality which is necessary for the understanding of

Interpretation, Argumentation, and the Determinacy of Law

“…The logical framework here presented contributes to filling a gap in the literature, as few contributions have so far addressed legal interpretation through formal models (see Araszkiewicz 2013; Rotolo, Governatori, and Sartor 2015; Walton, Macagno, and Sartor 2021), while formal argumentation has already been extensively applied to case‐based reasoning (Ashley 1990; Horty 2011; Horty and Bench‐Capon 2012; Prakken and Sartor 1998).…”

“…This article focuses on explicit arguments meant to support or attack a determination of a text's legal content. I will refer to these as “interpretive arguments,” without taking up the much‐debated distinctions between interpretation strictly understood and other ways of determining legal content—such as construction (Solum 2010), the exercise of judicial discretion (Endicott 2012), or rectification (Soames 2013)—since these ways also involve interpretive arguments broadly understood (see Walton, Macagno, and Sartor 2021, chap. 1).…”

Mapping the Issues of Automated Legal Systems: Why Worry About Automatically Processable Regulation?

“…Such interpretation requires complementary knowledge: not only legal knowhow, but also-depending on the legislation at hand-technical expertise (e.g., in data protection law, see Tamò-Larrieux et al 2021). Encoding such knowledge would either require to "foresee all potential scenarios and develop subrules that hopefully cover all future interactions" (Hildebrandt 2020, p. 71), which seems neither feasible nor sensible, or develop APR that is able to extract the context and adapt decisions accordingly (Moens 2006;Niklaus et al 2021;Walton et al 2021). Research on the latter issue has undeniably provided some promising results on capturing contexts (Tang and Clematide 2021) and on capturing the evolution of the interpretation of the law (Walton et al 2021).…”

“…Encoding such knowledge would either require to "foresee all potential scenarios and develop subrules that hopefully cover all future interactions" (Hildebrandt 2020, p. 71), which seems neither feasible nor sensible, or develop APR that is able to extract the context and adapt decisions accordingly (Moens 2006;Niklaus et al 2021;Walton et al 2021). Research on the latter issue has undeniably provided some promising results on capturing contexts (Tang and Clematide 2021) and on capturing the evolution of the interpretation of the law (Walton et al 2021). Yet, it remains questionable whether the extent to which we capture social interpretation and reflexivity of the law (Cobbe 2020), tied to the evolution of the interpretation of the law, is sufficient to parallel non-encoded law.…”

How Should AI Interpret Rules? A Defense of Minimally Defeasible Interpretive Argumentation

“…This is no coincidence: arguments that can be made for or against interpretations of a textual rule are called interpretive arguments. MacCormick et al (1991) [40] identified eleven types of interpretive arguments commonly used in legal argumentation, and their categorization has since been built on and refined in various ways [38,39,50,58,68,69], some of which are reflected in our above lists. In general, interpretive arguments, following the general formulation of Sartor et al [60] are of the form: "If expression E occurs in document D, E has a setting of S, and E would fit this setting of S by having interpretation I, then E ought to be interpreted as I" [60].…”