To Whom Does the Law Speak? Canvassing a Neglected Picture of Law’s Interpretive Field

Abstract

Among the most common strategies underlying the so-called indeterminacy thesis is the following two-step argument: (1) that law is an interpretive practice, and that evidently legal actors more generally hold different (and competing) theories of meaning, which lead to disagreements as to what the law says (that is, as to what the law is); (2) and that, as there is no way to establish the prevalence of one particular theory of meaning over the other, indeterminacy is pervasive in law. In this paper I offer some reflections to resist this trend. In particular I claim that a proper understanding of law as an authoritative communicative enterprise sheds new light on the relation between the functioning of the law and our theories of interpretation, leading to what can be considered a neglected conclusion: the centrality of the linguistic criterion of meaning in our juridical interpretive practices. In the first part of the chapter I discuss speech-act theory in the study of law, assessing its relevance between alternative options. Then I tackle the 'to whom does the law speak?' question, highlighting the centrality of lay-people for our juridical practices. Lastly, I examine the consequences of this neglected fact for our interpretive theories.

The Making of Constitutional Democracy: From Creation to Application of Law

“…While this type of power might be effective in the same way that a de facto political authority ismembers of the group which are subject to the military rule will comply more often than not with it -their compliance will not be grounded in any set of normative attitudes towards the exercise of power itself. For any type of even minimal acceptance or acquiescence towards the military rule by the populationwhich would suffice to constitute it as a de facto political authority -seems 48 52 As I argue below, the distinction derives from the Latin 'potestas' and 'potentia'. While both 'potency' and 'might' exist in the English vocabulary, they are not routinely used to differentiate power as potestas and power as potentia.…”

“…These two concepts are clearly different, and this distinction can be found in other Romance languages too: in French pouvoir and puissance, in Spanish poder and potencia. 52 This polysemy in the English language, while it can be arguably clarified in everyday linguistic usage by the context of specific utterances, 53 remains more problematic for philosophical and political enquiry. This has been the case, for instance, in translating and discussing Spinoza's works in the English-speaking world.…”

“…with 'authority'. 56 The lack of agreement in the literature has prompted Dowding to suggest that power might not been just polysemic and polythetic, but perhaps ultimately an essentially contested concept. 57 A trend has emerged however in the literature that recognises at least two distinct understandings (that is, two different concepts) of power loosely traceable back to Spinoza's.…”

“…50 While there might be no such thing as 'the' relationship between law and politics (especially if the latter is broadly understood), in this work our focus is narrower, and precisely on the relationship between law and political power 51 cf A Halpin, 'The Search for Law: A review of Mariano Croce, Self-Sufficiency of Law: A Critical-Institutional Theory of Social Order' (2014) 5(2) Jurisprudence 409. 52 From an analytical point of view, there are two additional potential sources of positive law: customary law (not to be confused with custom itself) and the case law of courts: J Gardner, 'Some Types of Law' in J Gardner, Law as a Leap of Faith: Essays on Law in General (Oxford, Oxford University Press, 2012). 53 A Schiavone, The Invention of Law in the West (J Carden and A Shugaar trans, Cambridge, Harvard University Press, 2012) (translation of the original Italian: A Schiavone, Ius.…”

“…On Aquinas's substitution of lex for ius, see JB and General Jurisprudence, vol 7 (Dordrecht, Springer, 2007) 6. 56 cf Grimm, 'Types of Constitutions' (n 41) 102-3, who instead represents the mainstream position in the literature according to which law becomes 'reflexive' only with the American and French revolutionary constitutions of the late 18th century.…”