II. The Exemplar: Dworkin on Jurisprudence and Interpretation

Scholars often associate legal interpretation in general, and constitutional interpretation in particular, with the judiciary as the institutional instantiation of that practice. Among these scholars, Dworkin’s account is the most sophisticated and serves to describe the sort of position I argue against. His approach champions a judicial perspective in legal interpretation on grounds which employ an appeal both to the nature of jurisprudence and to legal interpretation. I thus take his as the exemplar of someone making an association that is often made implicitly and explicitly.^{Footnote 2}

According to Dworkin, “legal practice is an exercise in interpretation not only when lawyers interpret particular documents or statutes but generally”.^{Footnote 3} With this he meant not only to provide scholars with tools to grasp the meaning of norms, clauses or rules but also to offer an answer to the question of what law is.^{Footnote 4} Dworkin developed his theory as an alternative to “semantic theories of law”,^{Footnote 5} of which, Hart’s positivism was the most prominent example.^{Footnote 6} They debated various themes, including: the types of standards that constitute the law,^{Footnote 7} whether jurisprudence is an explanatory or a normative enterprise,^{Footnote 8} and, the perspective from which jurisprudence is to be theorised. This article focuses on the last of these issues.

Dworkin insisted that legal theory should be undertaken from the internal perspective of a specific participant of the practice of law: the judge. The interpretive practice that law consists in, what law is, hinges upon what judges make of it. Legal interpretation is interpretation by judges.^{Footnote 9} So, why judges? Dworkin answers in this important passage:

This reasoning is problematic. Dworkin avows that judges’ opinions exhaust both adjudication and “any other aspect of legal practice”. For this to be true, however, adjudication would have to be representative of the full array of practices and institutions that constitute the law. But this is hardly the case. Put differently, even if “[a]ny judge’s opinion is itself a piece of legal philosophy” it is not equally true that legal philosophy is limited to providing grounds for the judges’ opinions, let alone that it should be. The problem runs deeper, however. Law is often theorised as if scholars asked themselves whether their accounts explain and/or justify what judges do in practice and how they could influence the practice of law inside the courtroom.^{Footnote 11} Yet, it is not obvious that the perspective of the judge should determine the perspective of legal theory.^{Footnote 12}

This way of thinking about the problem is at odds with the usage legal scholars give to the concept of interpretation in law. That usage does not lend support to these Dworkinian stances. The following sections provide grounds for criticising these views and propose an alternative. I first survey how the notion of interpretation is used by legal scholars (III), and then provide tools for choosing institutional interpretive paradigms (IV and V).

III. Interpretation in Law: A Survey

This section examines how legal scholars conceptualise interpretation. It provides a framework for the assessment of an association between interpretation and some institutional perspective, such as the one exemplified by Dworkin. An overview of the literature shows two things. First, legal scholars generally define interpretation as the imposition of meaning on an object.^{Footnote 13} The definition is, in turn, ambiguous between two extremes: at one pole interpretation is similar to the notion of understanding or explaining. At the other, it is close to creation or invention. Whether someone is interpreting and/or creating or explaining is determined by a structure of constraints,^{Footnote 14} such as literal meaning of the text, the author’s intention, the genre to which the object belongs, its purpose, among others.^{Footnote 15} Second, no depiction of what interpretation is carries with it an institutional commitment of any sort.

Most scholars consider that the interpretive process is determined by an interplay of semantic and pragmatic factors.^{Footnote 16} Exceptionally, some limit interpretation to either semantics or pragmatics. Solum argues, for instance, that “interpretation is the process (or activity) that recognizes or discovers the ‘linguistic meaning’ or ‘semantic content’ of the legal text”,^{Footnote 17} and that “[o]nce we determine that the linguistic meaning of a text is vague, interpretation has done its work”.^{Footnote 18} For Solum, once we introduce pragmatic elements into the process of imposition of meaning, we abandon interpretation and enter the domain of “construction”, that is, “the process (or activity) that translates linguistic meaning into legal effects (or ‘semantic content’ into ‘legal’ content)”.^{Footnote 19}

On the other hand, Richard Fallon Jr. claims that it is pragmatics what ultimately determines meaning. He argues that in the legal context, there is frequently “no single, linguistic fact of the matter concerning what statutory or constitutional provisions mean”.^{Footnote 20} Meaning is a folk concept that “depends heavily on how ordinary people use the term and would apply it in testing cases”.^{Footnote 21} The difference with legal meaning is that it depends on standards that are “largely internal to law”.^{Footnote 22}

Solum, however, is mistaken in equating interpretation exclusively with semantics, but right in claiming that interpretation has a semantic dimension. Individuals give meaning to objects placed in a shared net of communicative linguistic conditions without which they would likely talk past each other. This is exemplified by cases where we listen to or read a word or expression for the first time. Our usual reaction to these situations is not to say, like Humpty Dumpty, “when I use a word … it means just what I chose it to mean”. Instead, like Alice, we become puzzled by our lack of familiarity with the term and feel compelled to search for its meaning before we can use it in any given context.

Yet, interpretation is interpretation of something, and objects are contextually situated entities. Like works of art, literature and other textual objects, law also has a contextual component. Without context, without pragmatics, interpretation is reduced to pure semantics. But this would turn interpretation into the analysis of categories such as syntax, lexicology, etymology and the like. Such reduction gets us closer to understanding an object, but not close enough as to impose a meaning on it.

Fallon Jr. is wrong as well. He is right in insisting that words are not infused with some intrinsic meaning independent of the context in which one makes use of them. Words indeed exercise on us what Wittgenstein called psychological compulsion. Yet, it is a mistake to think that the meaning of a word is something that we have in our mind “and which is, as it were, the exact picture we want to use”. No, “the fact that one speaks of the apt word does not show the existence of a Something that …”.^{Footnote 23} Rather, we are forced by a picture, a mental image created by a word, to think that words impose a particular application on us.^{Footnote 24} Our tendency to think that words carry intrinsic meaning that can be discovered without the inclusion of a context in which the interpreter participates, is misguided. The contrary would imply the possibility of fully determining meaning through ostensive definitions. This possibility, however, has been successfully challenged by Wittgenstein.^{Footnote 25}

I submit that interpretation is better understood as a practice of imposing meaning to an object, with flexible constraints limiting the interpreters’ abilities to either explain an object or create a new one. It is both a noun and a gerund, a fuzzy and procedural entity that culminates in the decisional act of imposing a meaning on an object.^{Footnote 26} Disagreements regarding what interpretation is take place within the limits of this group of elements. Moreover, the interactions between its elements constitute good reasons to abandon positions placed at the poles of the scope within which interpretation exists as a distinct notion. Coming back to my main question, it is fair to say that of all the considerations explored in this section, none supports the idea that there are institutional considerations inherent to the concept of interpretation. The idea, exemplified by Dworkin, but endorsed by other scholars, that legal interpretation should be theorised as if X agent is interpreting, must be justified by reasons external to its nature. The point is rather obvious—though not trivial—that any agent can interpret.

Now, the interpretation of some objects is better justified when performed by some agents, better being measured by standards external to the idea of interpretation itself. The adoption of an institutional perspective and the concession of authority to that agent to determine what words mean in law, ought to be championed on grounds that do not appeal to the nature of interpretation as such. What is the relationship between interpretation and its possible institutional forms found in law? The next section argues that the adoption of institutional perspectives depends on the sources being interpreted and depends, also, on the effects authoritative interpretations have on individuals. I then conclude that a more visible role of non-judicial agents in legal interpretation is called for at the constitutional level.

IV. Conversational Context and Institutions

The concept or nature of interpretation does not imply necessary institutional perspectives. Selecting the judge’s as the internal perspective is not a conceptually necessary choice to adopt.^{Footnote 27} There are other standpoints from which legal theorists can view the interpretation of law. I submit that the choice for institutional viewpoints for legal and constitutional interpretation hinges on the hierarchy of the source of law being interpreted, and on the number of individuals potentially affected by the interpretive standards applied in a given decision. A combination of these standards progressively justifies judicial perspectives when the sources interpreted carry less normative strength and/or when the decision affects a circumscribed number of people because they have a chance to address the court. On the other hand, to the extent that decisions carry erga omnes effects, judicial paradigms become progressively less justified where legal standards carry higher strength, most prominently, where the standard being interpreted is the constitution, and where the individuals subject to authoritative interpretations are not parties at the trial. In such cases, the most suited repositories of constitutional meaning are agents whose raison d’être entails incorporating, either directly or representatively, as many individuals and groups as possible.

This heuristic does not lead courts to refrain from interpreting the constitution and other sources that, like statutes, are placed at the highest positions of the hierarchy of law. It means that, to the extent that they decide cases based on higher sources of law, the effects of their decisions should be limited to the case at hand and to the parties at that trial. In support, I rely on Marmor’s notion of conversational context. He says that constitutional terms are super-polysemous and “tend to designate different types of concerns, depending on context, background assumptions, the speaker’s intention, etc.”.^{Footnote 28} The main problem with constitutions, Marmor claims, is their “essentially thin conversational context: constitutions do not form part of an ordinary conversation between parties sharing a great deal of background knowledge”.^{Footnote 29} However, when the conversational context is thicker, when interpreters do share a great deal of background knowledge, they are better positioned to impose a meaning on an object that is coherent with the language game they are part of.

Marmor’s contention is that the conversational context of constitutions is thin.^{Footnote 30} This is not necessarily the case. The conversational context of constitutions can be thin, and usually is, because their indeterminacy increases the difficulty to specify about what individuals are talking. But the problem is not that thinness in their conversational context is some intrinsic property of constitutions. It is, rather, that conversations about constitutional problems are usually framed in a relatively high level of generality, abstraction, and polysemy. This does not mean that speakers cannot be on the same page, as it were, when they discuss problems which have bearings on constitutional matters. It means that, for them to be on the same page, such context must be built upon more general, abstract considerations that all parties can identify as relevant for them. Still, and with this caveat, I believe Marmor’s category to be useful.

The more the context generates relevant meaningful options, the less decisional the choice for the meaning ultimately imposed. Likewise, the further we are from context—or, what is the same, the more we interpret in the abstract—the greater the number of potentially imposed meanings, the less bound, the more decisional the interpretive practice. Other scholars argue along the same lines. The argument is similar, for example, to Sunstein & Vermeule’s capabilities approach. In their view, one should focus on “how should certain institutions, with their distinctive abilities and limitations, interpret certain texts”.^{Footnote 31} Although I do not discuss the value of their pragmatism, I highlight normative considerations instead. Here, my choice for an institutional paradigm is primarily conceptual and normative rather than pragmatic.^{Footnote 32}

One must also disagree with Posner’s ‘pragmatic adjudication’. His pragmatist judge sees norms in novel cases “merely as sources of information and as limited constraints on his freedom of decision”.^{Footnote 33} Unlike him, I take legal sources as authoritative standards judges are not authorised to disregard.^{Footnote 34} Waldron avers that judges face hindrances in the resolution of moral issues because the institutional setting in which they discharge their duties requires them to address such issues in a particular legalistic way.^{Footnote 35} I am sympathetic to this position but shall not delve here into the nature of the practical reasoning judges undertake. Rather, I focus on the more external relationship between the institutional position of judges, the sources with which they resolve cases, and the audience they are likely to affect when making decisions.

My proposal is not binary, i.e., judges or no-judges. Instead, I suggest that there are reasons to shift from a judicial paradigm to a different one when sources carry higher normative strength and when the number of potentially affected is higher. To see how this works, it is useful to examine how Supreme and Constitutional Courts’ reviewing procedures are often regulated. Although this varies across countries, the dynamics between legal sources, audiences, semantics, abstraction and context can be examined, generally, according to whether the system under study is a diffuse or a concentrated one. It can also be examined according to whether courts perform concrete or abstract constitutional review.

Diffuse systems are those in which constitutional challenges are made through ordinary litigation.^{Footnote 36} The US Supreme Court is the best-known example, but other countries follow analogous patterns.^{Footnote 37} In these cases, the interpretive and reviewing process is ignited by specific individuals raising specific grievances. Context is initially determined by the facts of the case provided by the parties in their allegations and by the sources they claim that apply to the issue at hand. It is against the background of those facts and normative standards that allegations are made to convince the court that one party’s story is better subsumed in the norms contained in the constitution.

Sometimes courts have competence to determine that a provision is unconstitutional in the specific context of a trial and thus ignore those sources as relevant for their decision. Consider, for example, the Chilean Constitution, whose article 20 prescribes that a person who by cause of arbitrary or illegal acts or omissions suffers privation, disturbance or threat in the legitimate exercise of a number of fundamental rights, can “resort to the respective Court of Appeals, which will immediately adopt the measures that it judges necessary to re-establish the rule of law and assure due protection to the affected [person] notwithstanding other rights which he might assert before the authority or the corresponding tribunals”. The reviewing process is undertaken against the background of the facts provided by parties affected by the decision. In turn, the interpretations of both the challenged provision and the constitution are performed with the intention of solving the specific case. Context is thus built by parties who rightfully expect the court to adjudicate.

One should have no quarrel with this. The process determining to what extent those norms regulate the facts invoked by the parties, the adjudicative process, is one that courts are fit for undertaking. Moreover, the individuated nature of judicial decisions matters in at least two aspects. First, in terms of legitimacy. Decisions are more acceptable when reasons are provided for them. Second, individuation gives context to the interpretive exercise that needs to be performed by the court. Thus, the relation between interpretation and adjudication depends upon the ability of individuals to secure access to the court and make their claims, provide their evidence, and expect an individualised decision. There are systems, however, where the effects of the courts’ decisions have erga omnes effects. That is, they extend beyond individual cases.^{Footnote 38} The context against which these courts decide is initially provided by the parties, although the decision affects non-litigants as well. As it happens, in some systems, the very possibility of access to the court hinges on the degree to which judges believe the decision will affect the public.^{Footnote 39}

The problems motivating specific individuals to take their cases to the court may or may not coincide, however, with concerns affecting society as a whole. In order to justify a decision not only to their initial audience—the parties—, judges need to consider an additional set of affected agents to whom they need to give reasons for their decision. But, the sort of considerations they need to take into account to provide that sort of justification ought to include facts, claims, and arguments which are no longer the ones given by the parties. They are to be determined by the court, in abstraction.

What reasons are there to assume that the specific conversational context provided by the parties is the one that is relevant for every other individual or institution that had nothing to do with the trial in the first place? Three possible answers come to mind. First, that there is nothing, or at least little, in that conversational context that may be relevant for non-litigants that would lead them to accept a given meaning. They were not parties at the trial, and, prima facie, there are no reasons for accepting the decision adopted in that specific adjudicative process, unless the outcomes derived from the decision are seen to be satisfactory. However, outcome-based reasons do not justify giving courts a general competence affecting non-litigants.^{Footnote 40}

A second answer is that non-litigants would find reasons to accept the court’s interpretive criteria in cases where they, either directly or as represented, contributed to the conversational context of the trial. Some legal systems, for instance, allow non-litigants to address the court when some issue affecting their legitimate interest is raised during the trial, for example, through interventions and submissions of briefs by amicus curiae.^{Footnote 41}

These are, however, examples of a limited extension of the capacity to be a party at a trial in circumstances where certain agents see their specific interests affected or whose opinion may be relevant for these courts’ decision. These exceptions do not justify extending the effects of a decision to every member of a polity, particularly to those with no knowledge of or interest in the case. In the language of social sciences, the model lacks ‘external validity’. It does not allow us to know whether “the results are generalizable to the whole population”. Only a model that “maintains both internal and external validity … can speak credibly for ‘we the people’”.^{Footnote 42}

A third reason is that there are uncontroversial examples in other areas of law like private and administrative law, where courts’ decisions affect non-litigants as well.^{Footnote 43} Consider private law as an example. Cases like bankruptcy or judicially declared nullity of certain contracts may have effects on non-parties. Yet, a claim to the illegitimacy of such decisions, in the same way that I object to constitutional judicial adjudication, seems out of place. Third parties who contracted with other persons who in turn contracted with bankrupted companies or individuals, may see their contracts annulled by the court. More generally, the effects of judicial decisions in private law also have societal effects. They are public instruments that can be made effective against any person, litigant or not. So, one may ask what is so special about constitutional law.

Yet, as much as the whole society may be affected by a judicial decision in private law, non-litigants are affected within the boundaries of the particular relationship put into question in court. One can trace the effects of the decision to specific relationships between individuals who directly relate to the trial at hand. In Marmor’s terminology, they are part of the same conversational context. This is not the same with constitutional law.

Things are starker in models of abstract concentrated constitutional review, i.e., models where power is conferred to a single court to determine the constitutionality of a legal source. The decisions of these courts are not binding solely upon litigants: “in so far as they apply and interpret constitutional law, they generally bind all constitutional organs, courts, and authorities”.^{Footnote 44} The archetype of this system is the Austrian Constitution of 1920, but it is also present in, for example, Germany, Italy, Cyprus, Turkey, Spain, Colombia, Chile, etc.^{Footnote 45}

In these procedures, courts review legal sources that allegedly conflict with the constitution. The task the court faces, however, is not of the same kind as are found with ordinary adjudicative processes, where context is provided by the parties and their facts. By contrast, in models of abstract constitutional review the courts review the constitutionality of legislation in absence of facts providing context.

One could still argue, however, that even in those cases there is context conditioning the meanings potentially imposed. The only difference, the argument would go, is in the nature of the facts considered by the court. Those facts are not specific disputes between individualised parties, but instead, concerns bearing on social questions, related, for example, to the likely consequences the decision could effect for some group, or to the impact on the stability of the legal system, or to the morality of the norm, or to its adequacy to constitutional principles, etc.

This is correct. There will be indeed a context limiting the interpretive activity. Yet, the facts and allegations delineating this contextual background are not offered by those affected by the eventual decision. It could be the case that some affected persons have the chance to make allegations, but this possibility is not of the essence of abstract a priori reviewing procedures. There is one possible reply. Although the citizenry in its entirety does not participate in the provision of meaning of norms affecting them when interpretations are authoritatively performed by a constitutional court, it is usually their representatives who knock on the court’s door. They are the ones offering allegations and interpretations of what they, qua representatives, think the constitution means. The court then, decides upon those competing visions, which ultimately are the visions of the citizenry.

But this is misleading. The tasks of constitutional courts are not best described and accounted for by saying that their judges participate in a representative procedure.^{Footnote 46} The ways in which abstract reviewing competences are framed in different countries show that what is expected from courts is the determination of constitutional meaning, not the resolution of political conflicts between factions. Their attributions are framed in terms of granting them powers to safeguard the constitution, not democracy or the representative system.^{Footnote 47}

The nature of the sources subject to interpretation is an additional criterion, combined with the inclusion of those affected, which generates a heuristic that helps to determine when courts are optimal constitutional interpreters for which cases. That nature results from a combination of features that include a norm’s hierarchy within the legal system, and the indeterminacy of the provisions containing the norm. My suggestion is that the final authoritative interpretation of norms placed at the higher hierarchical positions of a legal system, and whose formulation is ambiguous and vague enough so as to demand a normative assessment of their collective effects, ought to be undertaken with reference to a context determined not by specific individuals; they ought to be determined by as many parties affected as possible. Because courts are generally oriented towards deciding individual cases, courts do not appear to be optimal as final constitutional interpreters.

The requirements of interpretation are better satisfied when final meanings are argued for by those potentially affected by a decision that hinges on that interpretive process. They are thus met when subjected to procedures of inclusive collective-decision making, that is, to democratic procedures. At the constitutional level, direct or representative democratic institutions hold better credentials to interpret authoritatively. They are oriented at gathering as many perspectives as possible in decision-making processes that affect large groups of individuals or an entire polity.

Picking up again on Marmor’s idea, the interplay between participants at inclusive democratic institutions and the sort of information necessary to undertake interpretive processes at the constitutional level thickens the conversational context of constitutions. Because authoritative decisions at the constitutional level generate societal consequences, societal perspectives are the ones prevailing as sources of context in the determination of meaning of constitutional clauses.

These remarks move the examination towards the domains of democratic theory. We need further reflections on the sort of democratic theories that fit this heuristic. The next section offers guidance on what sort of democratic theory must underpin institutions laden with the task of interpreting constitutional provisions bearing on issues of societal scale. It claims that the imposition of meaning on polysemous, abstract, indeterminate constitutional norms is best made within a thicker conversational context; this takes place when inclusive conversations between parties give room for the exchange of arguments, information and preferences. Deliberative democratic mechanisms thus appear as ideal theoretical alternatives for the institutionalisation of authoritative constitutional interpretation.

V. Interpretation and Democratic Institutional Perspectives

This section champions deliberative democracy as a theoretical perspective from which constitutional interpretation may be instantiated in concrete institutions. Following Elster and Martí,^{Footnote 48} I contrast deliberative democracy with the following alternatives: market democracy, pluralist democracy and agonistic democracy.^{Footnote 49} One will find in these models different characteristics in the process of decision-making. Deliberative democrats advocate for the idea that collective decisions should be adopted via deliberation,^{Footnote 50} including every potentially affected person.^{Footnote 51} Deliberation operates as a justification for and as a condition of the legitimacy of the decisions adopted.^{Footnote 52} They are adamant that democratic procedures should not be limited to aggregating preferences during elections. Decisions should be preceded by deliberation.^{Footnote 53} Market or economic models, on the other hand, promote the accretion of individuals’ wills according to some interpretation of the principle of voting. I include here Schumpeter’s elites competition account,^{Footnote 54} Downs’ economic theory of democracy,^{Footnote 55} and accounts whose methodological bases endorse some version of social choice theory.^{Footnote 56} Although different in several aspects, they all value the political process instrumentally, as a device for expressing preferences,^{Footnote 57} and some regard democracy and the market as “special cases of the more general category of collective social choice”.^{Footnote 58}

Pluralists share with market models, for example, a rejection of any notion of the common good,^{Footnote 59} and the assumption that individuals enter the political process with pre-selected interests they try to advance through dealing and compromise.^{Footnote 60} Dahl, the model’s most prominent representative,^{Footnote 61} claims in a Madisonian vein,^{Footnote 62} that the aim of democracy is to distribute power to different centres that mutually check one another through peaceful dealing.^{Footnote 63} In short, Pluralists put premiums on association and negotiation or compromise among interest groups.

Agonists emphasise conflict and power and belittle rational dialogue.^{Footnote 64} They can be primarily associated with the work of Mouffe and Laclau,^{Footnote 65} but other authors have stressed the role that interests and power play in the political process as well.^{Footnote 66} They criticise liberal democracies and consider that power struggles and political conflict cannot and should not be overcome. They ought to be at front-centre of any political analysis.^{Footnote 67} The alternative is the abandonment of an individualism that renders impossible “the extension of the democratic revolution to an ensemble of social relations whose specificity can only be grasped by recognizing the multiplicity of the identities and subject positions that make up an individual”.^{Footnote 68}

In my view, of the three models under consideration, deliberative democracy is the best alternative for an institutional paradigm for constitutional interpretation when that interpretation carries authoritative erga omnes effects. By keeping decision-making procedures within the limits of an interpretive practice, the democratic theory’s constitutive features best allow for the generation of institutions with authority to impose meaning on all constitutional norms featuring collective consequences. To justify this assertion, I test to what degree the democratic theories considered meet the conditions imposed by three elements of constitutional interpretation; these are abstracted from the considerations made in the preceding sections, namely, inclusion, context, and interpretive justification. Meeting those conditions at the theoretical level serves as a justification for the design of democratic institutions in charge of providing authoritative meaning to a constitution.