Intentionalist Legal Interpretation

Such arguments in favour of certain theories of legal interpretation are usually presented without explaining why those arguments are relevant, and often without considering other types of arguments. What is the appropriate way to choose between competing theories of legal interpretation? What types of arguments are relevant? How do we decide between competing arguments when they conflict with each other? It is unusual for theorists to deal explicitly with the question of how to choose between competing theories of interpretation. For exceptions, see, for example, Shapiro 2009 chap. 1, 12–13; Greenberg, 2017a; Fallon, 1999. This chapter deals with the role that the authors` intentions and the text should play in the interpretation of the ECHR. The European Court of Justice has relatively consistently rejected intentionalism and textualism as methods of interpretation in favour of the so-called „evolutionary“ or „living instrument“ approach. The chapter provides a philosophical defense of the Court`s approach, drawing on relevant debates on the interpretation of the U.S. Constitution. It is argued that neither the text nor the authors` intentions alone can justify why the ECHR does or does not grant a particular right. Certainty and publicity, two values often invoked in support of intentionalism and textualism, are not applied in the ECHR, which are not intended to guide the behaviour of individuals or to protect States` expectations of their obligations under the ECHR. On the contrary, the ECHR seeks to prohibit states from treating individuals in a particular way, however convenient or justified they may find out. Article 2 emphasized that what matters is which method of legal interpretation is correct – and what are the reasons or arguments in favour of a method – depends on the interpretation of the law sought.

The accuracy of a method of legal interpretation depends first in approximation on the reliability of the reliability of the interpretation of the law. For example, if legal interpretation seeks the best resolution of disputes, then a method of legal interpretation is only correct if it leads to the best dispute resolution. [32] The main factors that promote the understanding of dispute resolution of legal interpretation (as opposed to one from which legal interpretation seeks input from a provision) are the open process, which is characteristic of many legal interpretations, and the ad hoc or eclectic approach to evaluating methods of legal interpretation, which is used in many legal interpretation writings. Lawyers and judges generally consider a variety of factors when interpreting the law without having a well-structured idea of the relevance of these different factors and why they are relevant. It is essential not to confuse the linguistic meaning of a provision with its contribution to the content of the law. It may turn out that the contribution of a law is constituted by its linguistic meaning (or, more precisely, by some type of linguistic meaning), but this is a very controversial assertion about how the content of the law is determined. If, in dealing with the preliminary question of what interpretation of the law is sought, we simply merge the contribution of a statute with its linguistic meaning, then we forget, among other errors, the need for substantive argumentation for that claim. To put it more simply, in ordinary communication – when we don`t make jokes, lie or be ironic, but just want to be understood or get others to do something – the words we use are inextricably linked to our intentions and intentions. We must mean what we say, not something else; Otherwise, we can blame ourselves if our intentions are thwarted. For the debate on the interpretation of the law, this means that the text is as important as the objective: the two cannot be separated. According to Grice, therefore, the interpretation of statutes is intended to serve the general purpose of conveying information in the most effective manner possible in order to influence the conduct of those for whom the law is intended. Another assumption is that the legislator does not provide more and no less information than necessary; And that they are serious and not intentionally obscure, ambiguous, verbose or messy.

The linguistic sense is a kind of symbolic meaning. Linguistic meaning is information that is reliably and systematically conveyed by words, phrases, and other linguistic units. In fact, there are different types and components of linguistic meaning, such as word meaning, semantic content, what is said, speaker meaning, and involvement. [5] (In this paragraph, when I considered the possibility that legal interpretation seeks linguistic meaning, I left aside the question of the nature of linguistic meaning.) An important reason for rejecting the claim that legal interpretation seeks linguistic meaning stems from three assertions widely shared by legal interpretation theorists: 1) legal interpretation often leads to interpretations that resolve legal disputes; (2) In settling disputes, judges must respect the content of the law, except in extremely exceptional circumstances. (3) The content of the law is often sufficiently determined to settle disputes.