Principles of Legal Interpretation
Mark Greenberg, UCLA

1. Introduction
In the large literature on legal interpretation, we find intelligent argument andsophisticated theoretical resources. But the field lacks system or structure – there is no general
understanding of what constraints a theory of legal interpretation must meet or what it must
accomplish in order to be successful. Theorists enter the debate from different starting points,
offering a particular consideration or type of argument in favor of a preferred account. Some
theorists argue from a particular conception of legislative supremacy, democracy, or legitimacy.
Others maintain that the study of language yields the correct method of legal interpretation. Stillothers offer an assortment of different “modes” of interpretation. A common approach is to offer
normative considerations, such as the appropriate role of appointed judges in a democracy, forfavoring a particular method of interpretation. Another tack is to insist that given what
interpretation is, legal interpretation can only be the ascertainment of the legislature’s intentions.
Are such diverse approaches in competition? Could an account based on a conception oflegislative supremacy, linguistic considerations, or the nature of interpretation accomplish thetasks facing an account of legal interpretation? We lack a framework for evaluating suchquestions.
The present paper seeks to address this problem of structure. The goal is to argue fromdifficult-to-dispute starting points to a set of fundamental principles that constrain any account of1

legal interpretation. I do not advocate a particular theory or method of legal interpretation.
Rather, I derive principles that any tenable theory of legal interpretation must adhere to.
Here is the plan for the rest of the paper. Section 2 argues that we should understandlegal interpretation to be the process of using legal materials to ascertain the content of the law.
Section 3, the centerpiece of my argument, considers the relation between the epistemology andthe metaphysics of law — that is, between how to ascertain the content of the law and how thecontent of the law is determined. I argue that a theory of legal interpretation is (in a sense that I
elucidate) responsible to a theory of how the content of the law is determined. Section 4
responds to three objections, thus sharpening my position on the relation between the
epistemology and the metaphysics of law. Section 5 responds to the objection that legal
interpretation should be concerned with second-best, rather than ideal, theory. Sections 6
through 8 introduce three further principles that theories of legal interpretation must satisfy.
Section 9 argues that my central principle — concerning the relation between a theory of legal
interpretation and a theory of law — is more difficult to satisfy than might initially appear
because the most widely-held theory of law is inconsistent with any controversial theory of legal
interpretation. Section 10 examines the implications of my principles for representative theories
of legal interpretation.

2. Legal interpretation as discovering the law
The Starting Point: Legal interpretation is the process or activity of using legal materials
to ascertain what the law is, or, more precisely, to ascertain legal obligations, powers, rights,
privileges, and so on.

2My starting point is that legal interpretation is the process or activity of using legal
materials, such as statutes, constitutions, contracts, wills, and the like, to ascertain legal
obligations, powers, rights, privileges, and so on. (In practice, of course, we look at somerelatively small subset of legal materials in order to answer some particular question.)1
That legal interpretation seeks to discover legal obligations (powers, rights, and so on) is
partly intended to be a useful regimentation of ordinary usage. When lawyers and judges
interpret statutes, regulations, contracts, wills, they are normally trying to determine what legal
obligations there are. Conversely, when a judge makes a discretionary decision, such asdetermining a criminal sentence that is not specified by sentencing guidelines, or engages in factfinding, we don’t describe the judge’s decision-making process as legal interpretation.
That’s not to say that nothing else ever gets mixed in under the term ‘legal interpretation.’
Courts engage in a range of activities that are not always carefully distinguished fromascertaining what the law is. These activities include fashioning decision rules,2 finding a way todecide a case that is not covered by applicable law, creating law, deciding whether enforcing thelaw goes beyond the court’s institutional capabilities, and so on.3 I don’t want to dispute thatsuch activities, typically together with ascertaining what the law is, are sometimes included
under the rubric of legal interpretation. But to the extent that it is clear that a court is doing

1

It would be simpler to say that legal interpretation is the process of using legal materials to discover what the lawis, but this formulation would be awkward in the case of contracts, wills, and other private law instruments. My
focus will be on interpretation of statutes and constitutions, so I will often use the simple formulation and talk of
discovering what the law is. The discussion is for the most part applicable to the interpretation of private law
instruments as well.
2

On the distinction between decision rules and the content of the law, see Berman XXX.
A few qualifications. First, it is worth noting that, at least on orthodox views of the relation between law andmorality, there are separate legal and moral questions of how to decide a case that is not covered by applicable law.
Second, as I mention in the text below, it may be that, when there is no applicable first-order legal standard, there isa legally correct way for a judge to proceed. Third, I do not include in the list in the text activities unlikely to be
confused with ascertaining what the law is, such as fact-finding and deciding whether it is morally required todisregard applicable law.
3

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something other than ascertaining the law, e.g., finding a way to decide a case that is not coveredby applicable law, that rubric seems inappropriate.
One important clarification: when I say that a case is not covered by applicable law, I
mean that there are at least two outcomes that the applicable first-order legal norms do not ruleout. But many other outcomes may be excluded by those norms. Thus, that a case is not coveredby applicable law is consistent with existing legal norms strongly constraining the legallypermissible outcomes. Moreover, even if the applicable first-order legal standards do notresolve the case, it may be that there is a legally correct way for a judge to proceed. For
example, there may be rules of closure – e.g., if there is no first-order legal standard that gives
the plaintiff a right to win, decide the case in favor of the defendant. More interestingly, it may
be that there are legal requirements on how a judge should go about creating law when necessary
to resolve the case. For example, it might be that when a statutory scheme leaves a specificquestion unresolved, the judge is legally required to create law interstitially in the way that best
implements the principles embodied in the statutory scheme or in the way that the legislature
would have resolved it had it considered the issue. In other words, a legal system might havesecond-order legal norms governing how to resolve cases that are not resolved by first-order
legal norms. Again, when I say that a case is not covered by applicable law, I mean only thatfirst-order legal norms do not dictate a unique resolution.
With respect to the activities of lawyers, as opposed to judges, there are fewer candidates
for other activities that might be classified as legal interpretation. Lawyers don’t create law,
fashion decision rules, and so on. One relevant activity that lawyers engage in is predicting what
courts or other authorities will do. They often make such predictions, however, precisely byworking out what the law is, and, in that case, it is no surprise that the term legal interpretation is4

apt. In some cases, however, lawyers predict what the authorities will do based on their personalfamiliarity with the relevant officials, on political considerations, or the like. And here the term‘legal interpretation’ again seems inappropriate.
Ascertaining the law is obviously governed by different principles than activities such as
creating law or finding a way to decide a case that is not governed by existing law. It is anactivity with a different aim; consequently, different means are suited to it. It is therefore
important to distinguish ascertaining the law from other activities that courts and lawyers engage
in. Given that ‘legal interpretation’ centrally picks out working out what the law is, it seems an
apt regimentation to use the term exclusively for that activity.
Thus far, I’ve been suggesting that taking legal interpretation to be a search for thecontent of the law is a useful precisification of ordinary usage. But I want to make a stronger
claim: that the theories I discuss and criticize – for example, theories commonly labeled“originalism,” “textualism,” “intentionalism,” “purposivism,” “non-originalism,” “pluralism,”and “living constitutionalism” – are in fact best understood as trying to ascertain the law. (I willcontinue to refer to such theories as theories of legal interpretation, but I don’t mean to beg anyquestions by this usage; it is just a shorthand for such theories.) To the extent that these theories
were engaged in some other project, my criticisms would not be apt. Thus, my claim that legal
interpretation seeks to ascertain the law is primarily a claim about what project the theories inquestion are engaged in, rather than a claim about the use of the term “legal interpretation”.
I believe that I am on strong ground in claiming that theories of legal interpretation seek
to ascertain how statutory and constitutional provisions and other legal instruments affect thecontent of the law. Some theories are more or less explicit about this point. In others, the point
is implicit. To see this, notice, first, that theorists of legal interpretation would be in broad
5

agreement that courts are in general bound to follow the law when there is law on the issue
before them. (I say “in general” because it is plausible that it is sometimes permissible for courts
to sometimes underenforce legal requirements.4 But this issue is not relevant here. Whentheorists of legal interpretation give their preferred accounts, they certainly are not offering
accounts of when courts should underenforce the law.) Moreover, the theorists in question taketheir accounts to yield outputs that are, at least as a rule, decisive – that is, they are supposed toresolve legal cases. Consequently, the accounts cannot be well understood as seeking toascertain some factor that merely bears on what the content of the law is, for example thelinguistic meaning of the texts. Given the consensus that courts are generally bound to follow
the law and the assumption that the accounts yield decisive resolutions, the accounts must either
be accounts of how to ascertain the law or accounts of how to decide cases when there is no law.
There are at least three reasons for thinking that theorists are not best understood as
addressing how courts should decide cases when there is no law. First, before a court can reachthe question of how to decide a case when there is no law, the court must begin by trying toascertain the law. Thus, a theory of how to decide a case when there is no law could only be
relevant after a theory of how to ascertain what the law is. But theorists of legal interpretation
take their theories to provide a starting point as well as a decisive answer to cases.
Second, the theories in question tend to be focused on the details of texts, legislative
history, and the like. This focus makes sense if the goal is to figure out what the law is. But if
the goal is to decide a case where there is no law, it is more difficult to explain the attention to4

See Sager XXX. In at least many such cases, it is arguable that in deciding to underenforce the law, courts arefollowing higher-level legal standards, e.g., ones concerning what courts should do when they are institutionally illsuited to enforcing constitutional obligations. To the extent that this is correct, the statement that judges are boundto follow the law when there is law on the issue before them is true without qualification (though misleading
because it might suggest that judges must always follow first-order legal standards).

6

the details of statutory texts and so on; and there are lots of other relevant considerations, such as
the societal consequences that we would expect to receive more consideration. Moreover, theappeals to legislative supremacy, the nature of authority, the limited role of judges in a
democracy, what interpreters are seeking when they try to understand linguistic utterances, andso on wouldn’t really make sense if the goal were to figure out how to decide cases when there isno law.
Third, many theorists of legal interpretation strenuously insist that there is one uniquely
correct way to interpret statutes and other legal texts. If the project were how to decide cases
when there is no applicable law, one would expect the tone to be very different – one would
expect a much more tentative, open-ended type of inquiry. In sum, despite some confusion in
the literature, theories of legal interpretation are best understood as theories of how to ascertain
what the law is.5
Larry Solum has advocated using the term “legal interpretation” for the activity ofworking out the linguistic meaning of the legal texts, as opposed to the content of the law.6 His

5The points in the last two paragraphs are less strong to the extent that there are second-order norms about how todecide cases in the absence of law that require close attention to the details of legal materials and dictate uniqueoutcomes. But it is implausible that the U.S. legal system has such norms as a general matter.
6
Solum proposes using "constitutional interpretation" for the activity of working out the linguistic meaning of theconstitutional text and "constitutional construction" for the activity of working out the impact of the Constitution on
the law. His main concern is to prevent conflation between linguistic meaning and what the law is. He and I sharethe view that it is extremely important to prevent this conflation. So our difference on this point is largely
terminological. Solum appeals to the long-standing use of the interpretation/construction distinction, but on myreading of that history, it does not support his terminology. It is true that some writers gloss “interpretation” asdiscovering “meaning,” but such remarks must be understood in light of the extremely common conflation of
discovering meaning with discovering a provision's contribution to the content of the law. Once this point is taken
into account, the traditional distinction is better characterized by saying that interpretation involves working out aprovision's contribution to the law, while construction is a more creative process of creating law that takes overwhen a provision's contribution to the law is indeterminate or uncertain on the issue before the court. See
Whittington 1999.
In my view, using "legal interpretation" for finding linguistic meaning is more likely to promote theconflation than using “legal interpretation” exclusively for finding the content of the law. Moreover, we don't needa technical term for the process of working out the linguistic content of legal texts, any more than we need a special
term for working out the linguistic content of any text. Rather, we need to be careful to use different terms for, on

7

usage actually brings out how natural it is to use the term in my way. On Solum’s view, once
legal interpretation is completed, we don’t yet know what the law is. We have to begin aseparate process of using the ordinary linguistic meanings of the texts along with other legally
relevant considerations to work out what the law is.
By contrast, legal interpretation as it is ordinarily understood is supposed to yield a takeon what the law is, not an intermediate step from which one can go on to work out what the law
is. It would be peculiar for an appellate opinion to arrive at a legal interpretation of the relevant
provisions and then to begin a discussion of how to get from that interpretation to a conclusion
about what the law is. Two observations support this point about ordinary usage. Legalinterpretation, on the ordinary understanding, draws on considerations that are not relevant toordinary linguistic meaning. For example, the rule of lenity in criminal law seems to have its
basis in considerations of fairness. Such canons are sometimes rationalized as heuristic devices
for inferring what the legislature meant or communicated, but they don’t look much like sincere
attempts to infer the legislature’s communicative intentions. Similarly, if legal interpretation
were just a matter of working out the linguistic meaning of the texts, it would not require special
skills beyond those of competent speakers of the language (and in some cases technical linguistic
skills), though it might require knowledge of specialized vocabulary or knowledge of relevant

the one hand, the impact of an enactment on the content of the law and, on the other hand, linguistic contents, suchas semantic content, speaker's meaning, communicative content, and implicatures.
Moreover, Solum's usage has other unfortunate side effects. It tends to suggest that there is only one
linguistic meaning. As argued in section 7, it is important that theories of legal interpretation distinguish different
types of linguistic meaning. Second, Solum’s usage tends to slant the playing field in favor of views that, like hisown, claim that the relation between linguistic meaning and the content of the law is relatively simple. Specifically,
the two-stage picture goes well with a view like Solum's on which the linguistic meaning of the texts becomes thelaw either without modification or, if necessary, with some filling in or precisification. It obviously does not fit wellwith a view like that of Ronald Dworkin or my own on which there is no simple route from linguistic meaning to thecontent of the law and on which linguistic meaning has no privileged status. Dworkin, Law's Empire; Greenberg,“The Moral Impact Theory,” Yale Law Journal (2014).

8

background considerations.7 In fact, however, legal interpretation draws on lawyerly reasoning
skills that are learned in law school.8
It is worth emphasizing that the question of legal interpretation addressed here is not thequestion of how judges should decide cases. First, the question of legal interpretation is not
specific to judges or to any other particular actor. Anyone, including a private citizen or atheorist, can seek to discover the law. Second, as pointed out above, in deciding cases, judges
have tasks that go beyond figuring out what the law is, such as deciding how to decide cases
where there is no binding legal standard, creating law, and deciding whether legal requirements
should be underenforced.

3. The need for an account of legal interpretation to be linked to a theory of law
The Linkage Principle: Any account of legal interpretation is responsible to a theory oflaw, i.e., a theory of how the determinants of the content of the law make legal propositions true.
From our starting point that legal interpretation seeks to ascertain what the law is, ourfirst fundamental principle follows: that an account of legal interpretation is responsible to atheory of law. I will first address what I mean by a theory of law and then turn to my claim thatan account of legal interpretation must be responsible to such a theory.
Facts about the content of the law – for example, the fact that, under California law,
contracts for the sale of land are not valid unless committed to writing – are not among the most7

The reason for the qualification about technical linguistic skills is that, although ordinary speakers are proficient at
inferring, for example, speaker meaning, there are more esoteric types of linguistic meaning such as semantic
content. See section 7. But the skills necessary to identify such contents are not taught in law school.
8
A third reason is that, as I discuss below, I largely set aside considerations of bounded rationality that may have an
important bearing on how judges should decide cases. See section 5.

9basic facts of the universe. Rather, such legal content facts – legal facts, for short – obtain in
virtue of other, more basic facts. A core project in philosophy of law is that of giving what I willcall a theory of law – an account of how the content of the law is determined at the mostfundamental level. For example, on H.L.A. Hart’s positivist theory, the content of the law isdetermined at the fundamental level by convergent practices of judges and other officials – what
Hart calls the rule of recognition.9 By contrast, on Ronald Dworkin’s “law as integrity,” theory,the content of the law is determined, roughly speaking, by the set of principles that best fit andjustify the legal practices. Yet another view would be that the content of the law is determinedby, say, the linguistic meaning of the authoritative legal texts.10
To say that a theory of law specifies how the content of the law is determined at thefundamental level is to say that there is no further determinant that makes it the case that thecontent of the law is determined in that way. For example, if Hartian positivism is true,11 it is notthat there are, say, moral reasons in virtue of which the convergent practice of judges is whatmatters. Rather, the most basic explanation of why statutes, judicial decisions, and the like havethe impact that they do on the content of the law is that judges have a practice of treating those
items as having that impact.12 Similarly, if the content of the law is determined at the9

For brevity, I will usually write "the fundamental level" rather than "the most fundamental level."
In Greenberg (forthcoming), I argue that this "Standard Picture" is most plausibly understood as an account of
how the content of the law is determined at the surface level, not the fundamental level.
11
It is not necessary to add the qualification that Hartian positivism is true at the fundamental level because it isbuilt into Hartian positivism that it is a theory of how the content of the law is determined at the fundamental level.
12
There is a deep question concerning what kind of philosophical explanation, if any, there can be of why thecontent of the law is determined, at the fundamental level, in the way that it is. Such an explanation would have toappeal to factors that are not themselves determinants of the content of the law. For example, assuming that Hartian
positivism is true, suppose that a putative explanation appeals to a certain factor – factor X – to explain why thepractice of judges is the fundamental determinant of the content of the law. Factor X could not be a determinant of
the content of the law, for, if it were, it would be more fundamental than the practice of judges. I hope to address
the question raised in this paragraph elsewhere, but for present purposes I set it aside. I will assume throughout thatthe kinds of explanations that I am discussing of how the content of the law is determined are ones that appeal todeterminants of the content of the law. There can be no explanation of this sort of why the content of the law isdetermined, at the fundamental level, in the way that it is.
10

10

fundamental level by, say, the plain meaning of the authoritative texts, then it is not that the plain
meaning of those texts matters because of the practice of judges, reasons of democracy, or
anything else.
The distinction between the fundamental level and less basic levels should be familiarfrom discussions of inclusive legal positivism. Inclusive and exclusive legal positivists agree
that, at the fundamental level, moral facts play no role. But inclusive positivists, unlike
exclusive legal positivists, maintain that moral facts may play a role in determining the content
of the law at a less basic level, for the rule of recognition may give that role to moral facts.13
As inclusive legal positivism illustrates, that the content of the law is determined in aparticular way at the fundamental level is consistent with its being determined in a different way
at the surface level of ordinary practice.14 We can use Hartian positivism to illustrate the point
more generally. If Hartian positivism is correct, then the way in which the law is determined at
the surface level will depend on the actual practice of judges in the particular legal system. If thepractice of judges is, say, to treat the semantic content of an authoritative legal text as its
contribution to the content of the law, then, at the surface level, the content of the law will be
determined by the semantic content of the authoritative legal texts.15 We could make parallel
points with respect to other theories of how the content of the law is determined at thefundamental level.16

13

See Hart 1994: 250-54.
There could be intermediate levels between the fundamental level and the surface level, but I will set aside thiscomplication, as it should not affect my argument.
15
Semantic content is, roughly speaking, the information conventionally encoded in the linguistic expressions. In
non-technical terms, the semantic content of a sentence is approximately its literal meaning. See section 7 below.
14

16

To say that the content of the law is determined in a particular way, whether at the surface level or thefundamental level, is not to make a claim about the actual practice of judges or other practitioners, such as a claim
about how they in fact go about ascertaining what the content of the law is. Rather, it is to say what it is in virtue of
which the legal facts obtain. A claim about how the content of the law is determined therefore has a closer bearing

11

Having clarified the notion of a theory of law, I turn to my argument that a theory of legal
interpretation has to be appropriately linked to a theory of law.17 In general, an account of how
to figure out the properties of particular Xs must be appropriately based on what Xs are. An
astronomer can use a radio telescope to tell us about cosmic bodies because the bodies that she isstudying give off radiation that can be picked up by the radio telescope. The astronomer’s
method for inferring facts about the cosmic bodies from the data provided by the instruments is
closely linked to a theory of the bodies themselves, what they are made of and how they behave.
The fact that using a particular instrument – a barometer, say – for learning about stars would
have some virtue, e.g. that it would be inexpensive or would save the astronomer’s eyes – could
not be a good reason for using the instrument unless what it measures is appropriately related tothe stars. To use a sports analogy, if one wants to learn how to keep track of the score in an
unfamiliar sport, one needs to understand what the determinants of the score are, e.g., how theactions of the players make it the case that a point is scored.
The general point should be uncontroversial. A method for learning about something has
to be appropriately geared to the target of study. We can use vision to learn about physicalobjects because they reflect light. We can’t use vision to learn about numbers (except indirectly
by looking at symbols) because they do not. In philosophical terms, the epistemology of adomain has to be appropriately linked to the metaphysics of that domain. (By the“epistemology” of a domain, I will mean how we learn about the facts of that domain. By theon how it would be legally correct to go about figuring out what the law is than on how judges or other practitioners
actually do it.
17
For arguments in a similar vein, see Scott Shapiro 2010: 25-30; Greenberg 2011. My arguments focus on theclaim that a theory of legal interpretation must be linked to a theory of how the content of the law is determined at
the fundamental level, but similar points apply even more strongly to the connection between a theory of legal
interpretation and an account of how the content of the law is determined at the surface level.

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“metaphysics” of a (non-basic) domain, I mean how the facts of the domain are determined orconstituted by more basic facts.)
Indeed, on a flat-footed line of thought, one might think that there is little or no space
between a theory of how to detect the facts of some target domain and a theory of how the facts
about domain – the X facts – are (metaphysically) determined. Suppose that the X facts are
determined by more basic A facts, B facts, and C facts. To put it schematically, let’s say that the
X facts are a particular function Θ of those facts -- Θ (A,B,C). On the flat-footed line of thought,
then, the best theory of how to detect the X facts is simply that we must detect the A, B, and C
facts and calculate Θ (A, B, C).18 To take a simple, concrete example, consider M1, a standard
measure of the money supply. Suppose we want to know what M1 is in the United States at aparticular time. Money supply facts are not basic facts about the universe. So we need to know
the more basic facts that determine M1. M1 is the sum of currency on hand plus demand
deposits (roughly, checking accounts). Thus, in order to figure out what M1 is, we need to figureout the total quantities of currency on hand and demand deposits and then add them together.
(Similar points could be made about how to figure out the total quantities of currency on handand demand deposits.)
Matters are not quite this simple, however.19

18

There is a special case in which we have an X-fact detector that makes it unnecessary for us for us to consciously
identify the A, B, and C facts and calculate Θ – or even to be aware of how the X facts are determined. I discuss thiskind of case – in which we have a reliable way of detecting the target facts without knowing anything about themetaphysics – below XXX.
19
I defer discussion of two complications. First, some metaphysical differences do not make a difference toepistemology. Second, in some domains, we have methods of ascertaining the facts that we have reason to believe
are reliable, even if we know little about the underlying metaphysics. In section 4, I argue that neither of thesecomplications is relevant to legal interpretation.

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First, an account of how to ascertain the facts must be sensitive to evidentiary
considerations. Suppose, for example, that, on the correct theory of law, a statute's contribution
to the content of the law is the content of the legislature's communicative intention in enacting
the statute. We know from the study of language that the standard way of inferring
communicative intentions relies on context. In that case, the best theory of legal interpretation
may direct us to use context in interpreting statutes. But context plays no role in making thecontent of the law what it is; for the legislature's communicative intentions are not what they arein virtue of the context. Context is just a means of inferring communicative intentions.
A theory of legal interpretation might also include evidentiary restrictions of a different
sort. It might be that there are legal or moral reasons – as opposed to reasons of accuracy – notto permit consulting certain kinds of evidence. For example, it might be that, for democratic
reasons, private diaries of legislators are not appropriate kinds of evidence, even if consulting
them would yield more accurate conclusions about the content of the law.20
Next, at least on one way of thinking about epistemology, epistemology depends not only
on the facts to be detected, but also on the abilities and limitations of the creatures in question.
An account of how to find out about cosmology for creatures with sensory apparatus sensitive toneutrinos, magnetic fields, and x-rays would be very different from an account designed forhuman beings. Human beings have to, for example, build neutrino telescopes, and makeinferences from the readings on the instruments. Similarly, an epistemology for humans should20

On one line of thought, this kind of point should really be implemented at the level of metaphysics rather thanepistemology. According to this way of thinking, if democratic reasons preclude the consultation of certain sources,
then the content of the law does not depend on whatever is in the sources. I think that it is a possibility, however,that the content of the law might depend on certain facts, yet there are legal or moral reasons why it is not
appropriate for a court to consider certain kinds of evidence of those facts, even though they are reliable sources of
those facts. Nothing will turn on this point, however.

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take into account their bounded rationality. For example, if we are interested in how soldiers incombat should figure out where the enemy is located, we must take into account the effects offear, lack of sleep, time pressure, and the like.
Turning to legal interpretation, certain kinds of evidentiary restrictions illustrate thepoint. Suppose that the content of the law depends on the communicative intentions oflegislators. Given widespread human biases and tendencies, it might be that looking at certain
kinds of evidence of those communicative intentions would tend to produce worse outcomes –that is, ones that are less accurate about the content of the law – than excluding those kinds ofevidence.
These points about taking into account the abilities and limitations of specific kinds ofcreatures do not change the basic point that an account of how to figure out the X facts – where
X facts are high-level facts of some sort – must depend on how the X facts are constituted bymore basic facts. Whatever the abilities and limitations of the creatures in question, the best
method of figuring out the X facts depends on how the X facts are constituted. To return to theexample on which the X facts are a specific function of A, B, and C facts, we may need an
additional layer of theory to take into account how the specific abilities and limitations of therelevant creatures affect the best way for them to figure out the A, B, and C facts (and to
calculate the relevant function). But the ultimate goal is to figure out the A, B, and C facts (andcalculate the function); thus, the metaphysics of the X facts plays a crucial role in determining
which method of discovering the X facts is best. Whatever the specific capacities of the relevant
creatures, the fact that the X facts are constituted by (a specific function of) the A, B, and C facts
is an essential part of what makes a theory of how to figure out the X facts true.

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In the case of legal interpretation, our concern will be with legal interpretation for humanbeings, not for other possible creatures. We can therefore set aside questions about how
creatures with other kinds of perceptual or cognitive faculties might go about ascertaining thelaw. There are special issues about how, say, children, people without legal education, or people
with cognitive impairments should best go about ascertaining the law. For example, in many
circumstances, people without legal education should simply consult a legal expert, rather thantrying to ascertain the law directly. Similarly, in certain situations, personal involvement islikely to impair one’s ability to ascertain the law, so people who have a direct stake in a mattermight be advised to consult a disinterested legal expert. I set aside such issues, instead simply
assuming that our concern is with intelligent, cognitively normal adult humans who have been
trained as lawyers (and are not personally interested in the issue at stake).
Even with this qualification, bounded rationality raises important issues for a theory oflegal interpretation.21 Judges, to take an especially important group, operate with limited timeand limited information and they are subject to human cognitive biases and other limitations
much discussed in recent literature. It would be important for a theory of legal interpretation
aimed specifically at judges to take such considerations into account. We might also want tohave special accounts for other participants in the legal system, for example, for legislators,
executive officials, and police officers.
Let’s distinguish between, on the one hand, an ideal theory of legal interpretation, which
specifies how an intelligent, legally trained human being works out what the law is – without
taking into account bounded rationality and, on the other hand, a second-best theory of legal

21

See Greenberg 2014 1335-1336.

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interpretation that takes into account bounded rationality. For reasons that I discuss in section 5,
I will for the most part focus on ideal theory. From this point on, I will set aside considerationsof bounded rationality, especially circumstances that are specific to particular types of actors,
such as judges or police officers, and will use ‘a theory of legal interpretation’ to refer to ideal
theory in the sense just identified.
With these clarifications out of the way, we can now ask: what exactly is the nature of therelevant link between the epistemology of law and the metaphysics of law – between a theory oflegal interpretation and the way in which the content of the law is determined? First, a theory ofinterpretation presupposes a theory of law. If a theory of legal interpretation is true, it is true
primarily because of 1) the way in which the content of the law is determined at the fundamental
level and 2) any factors or circumstances that the fundamental level makes relevant.22 If it is truethat we should interpret statutes in accordance with, say, their communicative content, it is true
either because a statute’s communicative content is the fundamental determinant of its
contribution to the content of the law or, more likely, because the fundamental determinant of thecontent of the law, perhaps the convergent practice of judges, makes it the case that a statute’s
communicative content is its contribution. (Actually, there is another possibility – that a statute’s
communicative content is the best evidence of its contribution to the content of the law. But ifthat is true, it is again because of the fundamental determinants of the content of the law and any
factors that those determinants make relevant.) In a nutshell, a theory of legal interpretation is
ultimately made true by the way in which the content of the law is determined at the fundamental
level along with factors that are made relevant by the fundamental determinants. Therefore, a

22

The reason for the qualification "primarily" is that peripheral factors, such as considerations of what evidence may
appropriately be considered, may also play a role.

17theory of legal interpretation presupposes a theory of law in the sense that the truth of a theory oflegal interpretation requires that an appropriate theory of law be true.
A consequence is that a theory of legal interpretation is responsible to a theory of law.
What does this responsibility involve as a concrete matter? A minimal implication is that atheory of legal interpretation must be consistent with a coherent and plausible theory of law. For
example, some accounts of legal interpretation claim that interpreters should draw on anassortment of modalities or factors.23 It a serious question what plausible theory of law could
make true such an unstructured multifactorial interpretive process.24 If there is no plausible
theory of law that could make a theory of legal interpretation true, then the theory of legal
interpretation must be rejected.
Another implication of the responsibility of a theory of legal interpretation to a theory of
law is that the commitments of the theory must be consistent with the theory of law that ispresupposed. There are various kinds of inconsistency. Many theorists of legal interpretation, if
pressed on the question of their underlying theory of law, would appeal to Hartian positivism, as
it is the most widely held theory of law. As I argue in section 9, however, Hartian positivism isin fact inconsistent with any controversial theory of legal interpretation. Now, in some cases, atheorist’s appeal to Hartian positivism is doing no work, and the theorist could simply abandon
that appeal. In other cases, however, theorists explicitly or implicitly rely on the assumption that
Hartian positivism is true in defending a controversial theory of legal interpretation.
Similarly, in developing and defending theories of legal interpretation, theorists regularly
make arguments that seem to presuppose conflicting theories of law. Many theorists seem to

23
24

See Bobbitt 1991; Breyer 2005.
See Berman and Toh 2013.

18

assume that the contribution of a constitutional or statutory provision is constituted by its
linguistic meaning and that this fact is not dependent on normative factors. In refining their
theories – for example in seeking to avoid awkward implications – the same theorists appeal tonormative factors, for example to reasons of democracy, legitimacy, or rule of law. As I discuss
below, for example, Scott Soames argues on linguistic grounds that the content of the law isdetermined by what the legislature asserts. Moral values play no role. He also argues, however,that linguistic meaning should not control when it yields a result that is inconsistent with “thechief publicly stated purpose that proponents of the law advanced to justify it.”25 Presumably,
this position could be defended on grounds of democracy. But what coherent and plausible
theory of law could support such a combination of positions about legal interpretation? If moral
values are not part of what makes it the case that linguistic meaning constitutes a statute’s
contribution, then how can moral values be relevant to override the role of linguistic meaning?
Another kind of inconsistency involves appeal to apparently ad hoc considerations. The
central tenets of a theory of interpretation may seem to presuppose a particular theory of law.
But the theory of interpretation also includes wrinkles that are not warranted in light of thattheory of law. For example, Scalia and Garner (2012) seem to presuppose that a statute’s
contribution is the linguistic meaning of the text. They then go on to endorse various kinds ofinterpretative canons that are not well designed to discover linguistic meaning, but moreplausibly serve judicial policies or other goals.26
An especially common kind of ad hoc argument involves appeal to a consideration
sounding in democratic values, legitimacy, or rule of law, without considering other arguments

25
26

Soames 2013.
See, e.g., Scalia and Garner 2012: 31.

19

based on the same values or considering other values. Contemporary textualists, for example,
often gesture toward an argument from democracy. But if an argument from democracy is
relevant, it is difficult to see how it could be warranted to stop short of asking what democraticvalues support all things considered. If one democratic reason militates in favor of public
meaning, but other democratic reasons outweigh that reason, it would be hard to argue that
respecting public meaning is justified on democratic grounds. Similarly, if reasons of fairness
and rule of law in favor of public meaning are outweighed by democratic values, it would be
hard to claim on fairness grounds that respecting public meaning is justified on balance.
Consequently, once one takes normative factors to be relevant, it is difficult to avoid the viewthat the determinants of the content of the law depend on all relevant normative factors.27
Therefore, there is at least a prima facie difficulty for a position that appeals to one normativeargument, without considering others.
In light of these points, it would be a good practice for theorists of legal interpretation to
say explicitly which theory – or at least which general type of theory – of law they presuppose.
Doing so would impose a salutary discipline on theories of legal interpretation, combating the
problematic tendencies described above. For example, theorists who indicated a commitment toa theory of law would presumably be less likely to offer arguments that seem to presupposeinconsistent theories of law or to offer ad hoc arguments, ones not grounded in the relevant
theory of law. Critics would be in a better position to evaluate a theory of interpretation that was
linked to a theory of law, for they would not be left guessing about the ultimate grounds onwhich the theory of interpretation rests.

27

The remarks in the text are just the barest sketch of how an argument would go. For development of theargument, see Greenberg 2014: 1334-1337.

20

It might be thought that my argument entails that there is no way to argue for a theory ofinterpretation other than by appealing to – and, ultimately, defending – a theory of law. I do notthink that such a strong conclusion is warranted, however. A theorist might begin with firm
convictions about the way in which some interpretive questions must come out.28 For example,
one might take it as a fixed point that the fourteenth amendment of the U.S. Constitution musthave the consequence that segregated public schools are unconstitutional. A theorist might also
appeal to intuitively attractive theoretical principles or considerations. Some possible examples:a good theory of legal interpretation should avoid absurd results; should give importance to the
linguistic meaning of authoritative legal texts; should have the consequence that the content of
the law is accessible; should respect democratic values. Starting with a set of convictions about
interpretive outcomes and some prima facie attractive principles, a theorist could use a method
analogous to reflective equilibrium to develop and support a theory of legal interpretation. So
there are resources for developing and defending a theory of legal interpretation without
appealing to a full-blown theory of law.29
On the other hand, there are significant limits to how much progress can be made withsuch a method. To begin with, it would be difficult to find many theoretical principles that are
sufficiently uncontroversial to serve as starting points. And there are many competing theories
of interpretation that can account for all or most widely shared convictions about interpretive
outcomes while respecting uncontroversially attractive theoretical considerations.

28

I am grateful to Seana Shiffrin for discussion of this point.
It is worth noting that the responsibility of a theory of legal interpretation to a theory of law is not avoided by theuse of a “bottom-up” or reflective-equilibrium-type method to defend the theory. If the theory of legal interpretationis true, it must be in virtue of the fundamental determinants of the content of the law, and so the theory must,
regardless of how it is defended, be consistent with a plausible theory of law.
29

21

Ultimately, there will be conflicts between competing theories of legal interpretation thatcan only be resolved by resolving debates between the underlying theories of law. Some theories
of legal interpretation may be eliminated because they cannot be reconciled with plausible
theories of law. Others may be eliminated by a reflective-equilibrium-type method. It seems
inevitable, however, that there will remain competing candidates that presuppose different
theories of law. (There will also be competing candidates that presuppose the same theory oflaw; such debates must be resolved by working out the consequences of the relevant theory oflaw.) If that is right, debates over legal interpretation can only be resolved, in the end, byaddressing the fundamental issue of how the content of the law is determined. This consequence
is unsurprising because whether a theory of legal interpretation is true depends on how thecontent of the law is determined.
It might be thought that this implication is problematic. The way in which the content of
the law is determined at the most fundamental level is a controversial issue in the philosophy oflaw. Therefore, my argument has the consequence that debates over legal interpretation
ultimately depend on a controversial issue in philosophy of law.
This implication is no objection, however. First, there are far fewer theories of law thanthere are theories of legal interpretation, so the debate would be greatly narrowed if it were
honed down to the issue of how the content of the law is determined. More importantly, it is agood thing if debates about legal interpretation are focused on what is ultimately at issue.
Because a theory of legal interpretation is made true primarily by the way in which the content of
the law is determined at the fundamental level, it is healthy to recognize the dependence of
debates about legal interpretation on debates about how the content of the law is determined. In
addition, as I have emphasized, many currently influential theories are not appropriately linked
22

to any plausible theory of law, relying on ad hoc arguments and the like. Consequently, a great
deal of progress could be made in theorizing about legal interpretation without resolving thequestion of how the content of the law is determined. Moreover, there may be a two-way street
between the development of theories of legal interpretation and of theories of law, since theories
of legal interpretation may stimulate new theories of law.

4. Three objections
In this section, I address three objections and in the process elaborate my account of therelation between legal interpretation and how the content of the law is determined.
First, I have written as if a theory of legal interpretation presupposes a unique account of
how the content of the law is determined. An objector might point out that some differences in
metaphysics do not have implications for epistemology. In particular, it is possible for there to
be different accounts of how the content of the law is determined that have the same implications
for legal interpretation. (At one extreme, two accounts could have the same implications forinterpretation with respect to all possible legal systems; at the opposite end of the spectrum, they
could have the same implications only in the particular circumstances of a specific legal system
at a given time.) We can say that two such accounts are interpretively equivalent (with respect tothe relevant legal systems). Disputes between interpretively equivalent accounts of how thecontent of the law is determined are not relevant to legal interpretation.
Although interpretively equivalent accounts are possible, prominent accounts of how thecontent of the law is determined in fact have extremely different implications for legal
interpretation. Hartian positivism is probably the most widely held contemporary account of23

how the content of the law is determined. I argue in section 9 that it has the consequence that nocontroversial theory of legal interpretation can be correct. For example, because textualism,
purposivism, living originalism, and Dworkinian interpretivism are all controversial in the US
legal system, if Hartian positivism is true, none of these accounts of interpretation is correct. By
contrast, if Dworkin’s “law as integrity” theory is true, then – at least if Dworkin is right about
the consequences of his theory30 – the correct method of legal interpretation seeks the set ofprinciples that best fit and justify the practices of the legal system, including the Constitution,
statutes, judicial decisions.
Differently again, Scott Shapiro argues that his Planning Theory has complex
consequences for theories of legal interpretation, for example that there are different criteria forthe correctness of a method of interpretation depending on why the officials of the legal system
accept, or purport to accept, the rules of the system. In an “authority” system – of which the US
legal system is probably an example – which method of interpretation is correct depends on theplanners’ attitudes about the trustworthiness of the interpreters.31 On my own Moral Impact
Theory, roughly speaking, legal interpretation requires ascertaining the moral consequences of
the ratification of constitutions, enactment of statutes, and other actions of legal institutions.32
Finally, on the widespread implicit picture of law according to which the content of the law isconstituted by the linguistic meaning of the authoritative legal texts, legal interpretation requires

30

As Dworkin himself points out, one could accept his "law as integrity" account of how the content of the law isdetermined at the fundamental level, but reject his account of its higher level consequences. For example, hedescribes a "conventionalist" account on which legal interpretation would involve no moral reasoning. See Law's
Empire XXX.
31
See Shapiro 2011, chapters 12-13.
32
See Greenberg 2004/2006; 2011; 2014 at 1325-1341. By including the Moral Impact Theory among “prominent
theories of how the content of the law is determined,” I don't mean to suggest that the Moral Impact Theory is
prominent to others. But it is prominent to me.

24ascertaining the linguistic meaning of those texts.33 In sum, these five accounts of how thecontent of the law is determined are likely to have importantly different implications for legal
interpretation in the US and similar legal systems. Because we are not in a situation where actual
competing accounts of how the content of the law is determined are plausibly interpretively
equivalent, we can set aside the qualification that differences in how the content of the law isdetermined are relevant only to the extent that they have different implications for
epistemology.34
Second, it might be pointed out that, in some domains (that are plausibly not domains ofbasic facts, i.e., facts that do not obtain in virtue of the obtaining of other facts), we are able toascertain the relevant facts without knowing much of anything about the metaphysics. Humans
have reliable knowledge of our own mental states, such as beliefs, desires, and emotions, thoughmost humans have never thought about the metaphysics of mind (and the metaphysics of mind iscontroversial among philosophers). Ordinary people know a lot about their own mental states
without ever pausing to worry about metaphysics. To take a different kind of example,
mathematicians are adept at amassing mathematical knowledge, despite the fact that themetaphysics of mathematics is highly controversial. Mathematicians have no need to concern
themselves with the metaphysics of math in order to discover mathematical truth. It might
therefore be wondered why we cannot, in a parallel way, proceed with figuring out the content of
the law without worrying about how the content of the law is determined.

33

In Greenberg (forthcoming), I argue that this "Standard Picture" is most plausibly understood as an account of
how the content of the law is determined at the surface level, not the fundamental level.
34
Therefore, when I say, for example, that a theory of legal interpretation presupposes an account of how the content
of the law is determined, strictly speaking, I should be understood as saying that a theory of legal interpretation
presupposes a set of interpretively equivalent accounts of how the content of the law is determined.

25

The cases of our own minds and of mathematics are special because, in these domains,
we have methods of acquiring knowledge that we have reason to believe are reliable. And,
crucially, our reasons for believing that these methods are reliable do not depend on anunderstanding of the metaphysics of the domains. In the mental case, we presumably haveinnate mechanisms that are sensitive to our own mental states. Those innate mechanisms, to theextent that they are reliable, track the relevant facts, but they operate unconsciously. Because
these mechanisms do the work for us, one does not need to be consciously aware of what lowerlevel facts make it the case that one has a belief or a fear. (Recent developments in psychology
as well as older Freudian ideas suggest that people’s knowledge of their own minds is less goodthan people typically assume, but we can set this point aside for the sake of argument.) In themathematical case, the method of acquiring knowledge – mathematical proof – is virtuallyuncontroversial among mathematicians until one reaches the most recondite questions. In
addition to the consensus of mathematicians, the extraordinary success of math-based scienceand technology gives us reason to be confident in the reliability of mathematical methods.
The legal case is utterly different. Far from there being an uncontroversial method oflegal interpretation that we have reason to believe is reliable, there is widespread debate over thecorrect method of legal interpretation. Competing theories of legal interpretation takeinconsistent positions about the role of the communicative intentions of legislatures, public
meaning, moral values, contemporary understandings, historical practices, and much more. Ifmathematicians had comparable debates about how to discover mathematical truth, then points
parallel to the ones that I have made about legal interpretation would apply. Indeed, it is worth
noting that, even when we have reliable methods like those in the mental and mathematicalcases, those methods are correct, to the extent that they are correct, because of the underlying

26

metaphysics. The mechanisms that give us first-person knowledge of our own minds are reliable
only because, and to the extent that, they track the determinants of our mental states. If it turned
out, surprisingly, that in a particular subfield of mathematics, the determinants of mathematicalfacts could not be reliably tracked by standard methods of mathematical proof, mathematicians
would need new methods for acquiring knowledge in that subfield.35
The third and final objection is that my argument seems to assume that, with respect toevery issue, there either is, or is not, applicable law. This assumption, the objection continues,
conflicts with the phenomenology of judging (and perhaps of lawyering as well). Judges do not
feel that they face two cleanly distinct types of situations: one in which there is there is anapplicable legal standard that must be followed and another in which there is no such standard
and judges are free to do as they please. I will make several points in response.
First, remember that when I say that a case is not resolved by applicable law, I mean that
there are at least two legally permissible outcomes. But that is not to say that the outcome is notstrongly constrained by law. So one reason why a judge would feel not suddenly feel free is thateven when the case is not resolved by applicable legal standards, the law may exclude many
possible outcomes. And one reason why a judge might experience a continuum of freedom fromapplicable law is that there is in fact a continuum from cases in which the first-order legal

35

What about ethics? It is controversial how much consensus there is regarding methodology in ethics. If we
restrict ourselves to Anglo-American moral philosophy, ignoring, for example, people who claim to acquire ethicalknowledge by divine revelation or by consulting their reactions of disgust, there is arguably somewhat lesscontroversy over the methods of acquiring ethical knowledge than in the legal case. To the extent that there is anaccepted method that is known to be reliable, ethics can be treated like the mathematical case. But ethics certainly
lacks anything like what mathematics has – a method that is agreed by all to be fully reliable. Partly as a result,
there is a great deal of disagreement over first-order ethical propositions. In order to make progress in ethics, wetherefore need to settle disputes about methodology. I would make arguments about the epistemology of ethics thatare parallel to those that I make about law. The method of ethics is responsible to metaethics. To take one example,
if Cornell moral realism is a true account of metaethics, then the reflective equilibrium method would plausibly not
be a reliable method of learning about ethics.

27

standards permit only one outcome to cases in which the first-order legal standards place little
constraint on the outcome.
Second, as mentioned in section 2, even when a case is not resolved by applicable law inthe sense that there is no first-order legal standard that dictates a unique outcome, there may
often be second-order legal standards that control how the case should be resolved. (Moreover,some such second-order standards would have the consequence that reasoning about which legal
standard to create would involve considerations intimately related to figuring out what thestatutory scheme requires. An example would be a requirement that, when a statutory scheme
leaves a specific question unresolved, the judge is legally required to create law interstitially in a
way that best fits the rest of the statutory scheme.)
Third, the sense that judges are constrained even after the law has run out might befostered by a very simple picture of the metaphysics of law. Suppose that a theorist assumes that
if the plain language of the most obviously pertinent constitutional provisions, statutes, judicial
decisions, and the like does not clearly resolve an issue, then the law does not resolve that issue.
The theorist then observes that judges (and lawyers), even after they recognize that the plain
language of the relevant materials does not clearly resolve an issue, continue to engage in legal
interpretation, closely scrutinizing the relevant texts (as well as other, less facially relevant texts)
and making arguments about how they are best interpreted. Such a theorist might well conclude
that, even after the law has run out, judges (and lawyers) do not feel unconstrained.
Nothing in this line of thought presents any objection to my argument. A very plausible
understanding of the situation is that judges, whatever they might say when engaged intheoretical reflection, do not work with the simple picture of the metaphysics of law that thetheorist assumes. When they find that the plain language of the relevant texts does not clearly28

resolve an issue, they do not conclude that there is no law on that issue. They continue to engage
in legal interpretation because they are trying to ascertain what the law is. Of course, it is aseparate issue whether judges are correct to think that there is law for them to ascertain. And
that issue turns on the metaphysical question of how the content of the law is determined.
(Obviously, it would be question begging to assume the very simple picture of the metaphysics
of law, which, if known to be accurate, would largely eliminate the interest of legal interpretation— understood in the way I have elucidated — by restricting it to cases in which it is obvious
what the content of the law is.)Finally, and most importantly, it is sometimes uncertain whether there is a first-order
legal standard that resolves a particular issue. Uncertainty about whether there is law on a given
issue provides no reason to doubt that there either is or is not law on the issue. But it helps to
explain why judges do not feel a sharp divide between cases that are governed by law and casesthat are not. It is rarely clear that there is no first-order legal standard on a given issue;
uncertainty is much more common. Consequently, judges will typically not be confident that
there is no applicable legal standard. Moreover, it is plausible that, when faced with such
uncertainty, judges think that a judgment that there is in fact no legal standard must not be madelightly; rather, they take themselves, as a rule, to be bound to make all possible efforts toascertain whether one legal position is better supported by relevant arguments. .
Now what judges should do when they are uncertain whether there is a controlling legal
standard is an important question for a theory of legal interpretation. The point that I want toemphasize here is that the answer to this question depends importantly on the way in which thecontent of the law is determined. (Indeed, when a judge should be uncertain whether there is acontrolling legal standard itself depends on how the content of the law is determined.) Where
29

the line between law and no law falls depends on how the content of the law is determined.
Similarly, how often there is no law governing an issue depends on how the content of the law isdetermined. For example, on the very simple picture of the metaphysics of law just mentioned,
there is no law whenever the plain language of the relevant texts does not clearly resolve theissue, so there will very often be no law. On a very different picture of the metaphysics of law
on which, to put it crudely, there is law whenever the relevant arguments on one side are better
than those on the other, the line will fall in a very different place and there will be law much
more often. (I don’t mean to offer this picture as a serious account of the metaphysics of law;rather, I am just gesturing at a type of picture that contrasts with the simple one.) Thus, cases inwhich there is uncertainty about whether there is a governing legal standard present no objection
to my thesis about the responsibility of theories of legal interpretation to theories of how thecontent of the law is determined.
In sum, the phenomenology of judging provides no compelling reason to doubt that, oneach case, there is or is not a governing legal standard.36

36

An objector might nevertheless press the possibility of indeterminacy about whether there is a governing legal
standard. Notice that this would be higher order indeterminacy, rather than indeterminacy about what the law is on
some issue. That is, the objector suggests that it could be indeterminate whether there is or is not a legal standard.
I’m inclined to make the simple response that higher-order indeterminacy of this sort is, for the purposes of legal
interpretation, tantamount to first-order indeterminacy. On this line of thought, if it is indeterminate whether there is
or is not an applicable legal standard that the resolves the relevant issue, then the law leaves the issue unresolved. A
more nuanced answer is that whether or not such indeterminacy is possible, what it would look like, and in whatcircumstances it would obtain all depend on how the content of the law is determined. Thus, to the extent that atheory of legal interpretation might treat higher-order indeterminacy differently from first-order indeterminacy, suchhigher-order indeterminacy constitutes no exception to the responsibility of a theory of legal interpretation to atheory of law.

30

[The following section, section 5, may not appear in this form in the final version of this paper.
Please feel free to skip it.]
5. Another Objection: Legal Interpretation as Ideal or Second-Best Theory?
I have so far taken a theory of legal interpretation to be an ideal theory. That is, a theoryof legal interpretation specifies how to work out what the law is without taking into accountlimitations of particular investigators or types of investigators.
It might be objected that a theory of legal interpretation should not be concerned with
ideal theory, but with second-best theory. Because of the limitations or biases of particularinstitutional actors, those actors would do a better job of complying with ideal theory in the longrun if they did not attempt to follow the ideal theory of legal interpretation directly, but simply
adhered to specific rules. This general type of idea – that agents operating under particularconstraints may in the long run better achieve an overall goal by following second-best rules – isa familiar one from discussions of rule utilitarianism. In designing a legal system, it could besensible to require particular institutional agents not to follow the ideal theory of legal
interpretation, but to follow second-best rules. Adrian Vermeule has powerfully argued for sucha conclusion.37 According to the imagined objection, since judges and other agents will in thelong run do a better job of complying with the ideal theory by following second-best theory thanby trying to follow ideal theory directly, it is a mistake to think that legal interpretation should beconcerned with ideal theory at all.38

37

Vermeule (2006).
Vermeule also suggests that, as a result, a theory of legal interpretation need not be concerned in practice withhow the content of the law is determined. See note 39.
38

31

There are several answers. First, the subject of legal interpretation understood as ideal
theory is of independent theoretical interest, whatever the practical importance of second-besttheory.
Second, a second-best theory has to be relative to a particular type of institution, with its
particular limitations. But legal interpretation is not only a matter of practical rules for specificinstitutions. A theorist or scholar can engage in legal interpretation – and therefore care about
the correct approach to legal interpretation – without any specific institution in mind.
Third, it may well be that second-best rules have to be imposed as a matter of overallsystem design. In Anglo-American legal systems as they are presently constituted, there is astrong argument that it is not legally permissible for a judge to unilaterally decide to follow asecond-best rule. Following a second-best rule makes a difference only when it leads a judge todecide a case differently from the way in which the judge would have decided the case if thejudge had attempted to decide the case according to the applicable legal rules directly. Plausibly,
a judge who believes that one party has a legal right to prevail on substantive legal grounds may
not simply decide to resolve the case against that party on the basis of a second-best rule on the
ground that adherence to that rule is likely to lead to more legally correct outcomes in the longrun. (And, if that is right, it may be impermissible for a judge to circumvent this problem bydeciding not to do her best to determine which party has a legal right to prevail.) Similararguments apply to other institutional actors. Thus, although second-best theory is important forsystem designers or reformers, it may not be of practical relevance to ordinary judges,
prosecutors, and administrative agencies as things now stand.
Fourth, the very attraction of second-best theory presupposes a consequentialist
assumption that the relevant values, whatever they are, always support following a rule that32

maximizes the number of cases in which the relevant values are adhered to – even when theagent is confident that following the rule in the present case goes against the relevant values. But
such an assumption is controversial. One familiar problem is that some values may be agent
relative. For example, it is plausible that I may not betray a friend even if doing so would lead to
fewer betrayals of friends in the long run. The question of whether the underlying
consequentialist assumption is correct with respect to the values relevant in the legal case is adifficult philosophical issue in its own right, and beyond the scope of this article. The
problematic nature of the assumption, however, provides another reason for the importance oflegal interpretation as understood here.
Finally, and most importantly, ideal theory has metaphysical and epistemic priority oversecond-best theory. The metaphysical priority is obvious. The correctness of the ideal theory
does not depend on second-best theory, but the correctness of a second-best theory depends onwhich ideal theory is true. Suppose it is true that a certain group of judges would come closer tocomplying with the ideal theory by trying to follow a particular set of rules rather than by trying
to follow the ideal theory directly. Obviously, that truth holds partly in virtue of what the ideal
theory specifies. Thus, the importance of second-best theory provides no objection to myargument that a theory of legal interpretation is responsible to a theory of law.
Ideal theory also has epistemic priority. In order to work out which second-best rules
particular actors or institutions would do best to follow, we need to know what idealinterpretation would look like. Whether it is true that a particular institution, with particular
limitations, would (in the long run) be most successful at complying with ideal theory byfollowing particular second-best rules is a difficult empirical question. Investigating the question
requires comparing how well an agent with particular limitations would succeed in complying
33

with ideal theory by trying to follow ideal theory directly as compared with how it would do byfollowing candidate second-best theories. No such comparison can be made without the ideal
theory. Thus, we need to know the ideal theory in order to ascertain which second-best theory iscorrect.39 Indeed, because this paper does not take a position on how the content of the law isdetermined — and therefore does not take a position on which ideal theory of legal interpretationis correct — we cannot here engage in second-best theorizing.
In sum, regardless of whether it might be wise to impose certain second-best rules onparticular institutional actors, ideal theory remains of independent theoretical and practicalimportance. And, to reiterate, however important second-best theory may be, it provides noobjection to the claim that a theory of legal interpretation is responsible to a theory of law.

6. The content of the law versus the linguistic meaning of the legal texts
The Linguistic Meaning versus Legal Content Principle: A theory of legal interpretationmust distinguish between the content of the law and the linguistic meaning of the legal texts.

39

Vermeule argues that, in some cases, even without resolving underlying debates about how the law is determined,
we can be confident that judges would do better to follow a second-best procedure. He gives the example that
intentionalists and textualists should both accept that, given the limitations and tendencies of judges, judges would
come closer to correct interpretations of the law restricting their attention to clear and specific statutory language
and not considering other evidence of legislative intention.
It is obvious that differences in ideal theory can in principle make a difference to which second-best rules
would produce the best results. Vermeule’s claim is that, in practice, all plausible ideal theories of legal
interpretation would yield the same second-best rules. But given the diversity of theories of legal interpretation andhow little we know about the results that different institutional actors would likely produce if they attempted tofollow different approaches, any such claim is both tendentious and premature.
And, at any rate, it is the job of theorists to work out which ideal theories of legal interpretation areplausible. Typically the way in which a field as a whole comes to views about which theories are plausible isthrough particular theorists trying to figure out which theory is true, and developing and defending their preferred
accounts. Without theorists developing and defending particular ideal accounts, we would not be in a position toevaluate the relative plausibility of different candidates.

34

Moreover, a theory of legal interpretation that holds that an interpreter’s ultimate goal is toascertain the meaning of legal texts must offer an argument connecting the meaning of legal
texts to the content of the law.
Theorists of legal interpretation often do not distinguish carefully between the ordinary
linguistic content or meaning of the legal texts and the content of the law. (The point of thequalification “ordinary” is that the linguistic content of a legal text is an instance of linguistic
content generally, not something specially legal.) When theorists talk about, for example, themeaning of a constitutional provision, it is often unclear whether they are talking about alinguistic content or a legal content.40 Contributing to the problem, the terminology in this area
is slippery. For example, talk of what a constitutional provision “says,” “states,” or “asserts,” orof its “content,” is ambiguous between, on the one hand, aspects of the linguistic meaning of thestatutory text and, on the other, the impact of a statute on legal obligations, powers, and the like.
In addition, the term meaning itself has many different uses.
To avoid ambiguity, I will use linguistic content (or sometimes meaning and its cognates)
to refer to the information that language enables us systematically to convey to others.
Linguistic content is to be distinguished from meaning in the loose non-linguistic sense that isroughly equivalent to significance or upshot. For example, we might ask the meaning of a recent
political event or an embarrassing situation. More importantly, for present purposes, linguistic
content is to be distinguished from the content of the law – what the law requires and permits.
As we will see in section 7, linguistic content is not one monolithic thing: thecontemporary study of language has distinguished multiple types of ordinary linguistic content

40

See, e.g., Goldsworthy (2009); Greenawalt (2002).

35

(semantic content, speaker’s meaning, what is said, what is conversationally implicated, and soon). I will use linguistic content or meaning to refer generally to any of these (and more precise
terms for the specific types of linguistic content).
Our starting point is that legal interpretation seeks the content of the law. The content of
the law consists of obligations, rights, powers, and the like. By contrast, linguistic meaning is
information represented by symbols. These two things are not even of the same generalcategory. And, as a general matter, the content of norms need not be determined by information
represented by symbols. After all, there are systems of norms in which texts or other symbols
have no constitutive role.
Morality is one example. We use symbols to talk and think about morality, and it might
be true that creatures without symbols could not be subject to moral norms. But many moral
norms do not obtain in virtue of the existence or production of certain texts or symbolic
representations. The content of the moral norms is not determined by the information
represented by symbols. (At least, this is true on standard views about morality.) The point is
not limited to domains of robust normativity such as morality.41 Whatever is the truth about theactual norms of etiquette (or fashion), we can easily imagine norms of etiquette that obtain in
virtue of customs rather than in virtue of the symbolic representation of information.
It may turn out that, according to the best theory, what legal obligations people have isdetermined exclusively by what certain legal texts mean. Perhaps this is even true as a matter of41

Citation for the distinction between robust and formal normativity.

36

necessity – there is no possible legal system in which the law is differently determined. But it isfar from obvious that it is true.42
One way to see this is just to notice that there are coherent, and indeed popular, theories
of law on which the law diverges from what the authoritative legal texts mean. To take one
example, on a popular kind of intentionalist theory of statutes and constitutions, the content of
the law depends at least in part on the legal intentions of the legislature or framers. (Alegislature’s legal intention in enacting a provision is the change in the law that it the legislatureintends to effect, or, to put it another way, the legal norm it intends to enact. On no colorable
theory of linguistic meaning is an agent’s legal intention in pronouncing a text constitutive of thelinguistic meaning of the text.43) To take a very different example, on Dworkin’s “law asintegrity” theory, the content of the law is, as noted above, the set of principles that best fit andjustify the past decisions of legal institutions (and the requirements that follow from thoseprinciples). On either theory, the content of the law is not determined by the linguistic meaningof the authoritative legal texts.

42

To put matters in a slightly more technical way, the concept of what the law requires is a different concept fromthe concept of the meaning of the authoritative legal texts. (Notice, for example, that they have different component
concepts, and that someone could have one concept without having the other.) Two distinct concepts may of course
refer to the same substance or object; they may even do so necessarily. But it requires investigation or argument toshow that they do. The concept of Obama’s favorite drink is a distinct concept from the concept of hydrogenhydroxide or H2O. But we could discover that these concepts happen to have the same referent. Even if two
concepts necessarily have the same referent, it may be far from obvious that they do. The concept of an equilateraltriangle is distinct from the concept of an n-sided polygon that can be inscribed in a circle regardless of the length ofits sides, though it can be proved that these concepts necessarily are co-referential.
In these examples, the putatively co-referential concepts are intuitively concepts of objects in the samegeneral category. As pointed out in the text, however, obligations and information represented by symbols are noteven of the same general category. Consequently, it is not clear that the concept of the content of the law and theconcept of the meaning of the authoritative legal texts could have the same referent. At best, perhaps, the content of
the law might obtain in virtue of the meanings of the authoritative texts.
43

On legal intentions see section 8 below. On the distinction between legal and linguistic intentions, especiallycommunicative intentions, see Greenberg 2011 and forthcoming.

37

A different point is that it is plausible that there are customary legal norms for which
there are no relevant authoritative legal texts. If this is right, it is enough to undermine thesimple view that the content of the law is solely constituted by the meaning of authoritative legal
texts. Furthermore, if an entirely custom-based legal system is possible, then it is not necessarythat the content of the law is determined even in part by the meaning of authoritative legal texts.
Given the distinction between what the law requires and the ordinary meaning of theauthoritative legal texts, any assumption that what the law requires is – or is determined by – themeaning of the authoritative legal texts requires argument. In light of our starting point that legal
interpretation seeks to discover the law, a theory of legal interpretation must not assume without
argument that the goal is to discover the ordinary meaning of the authoritative legal texts.

7. The distinction between different types of linguistic content
The Linguistic Multiplicity Principle: A theory of legal interpretation must distinguishbetween different types of linguistic content (and a claim about the relevance of a particular typeto legal interpretation must be appropriately based on a theory of law).
It is uncontroversial that linguistic content of the legal texts is highly relevant to legal
interpretation. As discussed in section 6, when theorists of legal interpretation write about “themeaning” of a statutory or constitutional provision or other legal text, it is often unclear whether
they are referring to the provision’s contribution to the content of the law or to its linguistic
meaning. Even once we are clearly focused on linguistic content, however, there are manydifferent types of linguistic content. (Moreover, and this is a separate point, there is a great deal38

of controversy about what the theoretically important types are.) For illustrative purposes, I will
focus on a few prominent categories.
Semantic content is, roughly speaking, the information conventionally encoded in the
linguistic expressions. In non-technical terms, the semantic content of a sentence isapproximately its literal meaning.
By contrast, there are pragmatically communicated contents, ones that the speaker means
or intends to communicate by uttering certain words (and typically can reliably communicate inthat way), but that go beyond the literal meaning of the words. For example, Paul Grice’s
seminal work introduced the notion of speaker meaning. Grice made an important distinction
between what linguistic expressions mean (semantic content) and what speakers mean byuttering them. On Grice’s account, speaker meaning is the content of certain complex intentionsof the speaker. Roughly, the speaker meaning of an utterance is what the speaker, in making theutterance, intends that the hearer come to believe by recognizing that very intention. For
example, the semantic content of the sentence “I have eaten breakfast” is plausibly that I haveeaten breakfast at least one time in my life. In typical contexts, however, I utter this sentence inorder to communicate that I have eaten breakfast today. To take a different kind of example,
suppose that in response to an invitation to a party, I say “I have a deadline that I have to meet.”I mean that I will not go to the party, and my interlocutor will no doubt be able to infer this. Butthat I am not going to the party is not part of the literal meaning of the words. Hearers are adept
at inferring what speakers mean. Indeed, we recognize the speaker meaning so effortlessly that it
often requires technical expertise to explicitly identify the semantic content of the words.
In many — but not all — cases, the speaker meaning does include the literal meaning of
the sentences, but it also includes further information. The two examples in the previous
39paragraph illustrate the phenomenon that Grice called “conversational implicature”. A content
that is merely implicated is a component of what the speaker means or intends to communicatethat is not part of what the speaker says or asserts. Linguists now distinguish many types of
implicature.
Following Grice, many theorists have identified or closely linked what is said with thesemantic content of the words. Recently, however, several theorists have argued that even what
is said typically goes well beyond the semantic content, though it stops short of all that ismeant.44 On this kind of view, we need a three-way distinction between semantic content, what
is said, and what is meant (including what is merely implicated).
Next, we have communicative content. Different theorists have different views about
what constitutes the communicative content of an utterance. On a broadly Gricean view, thecommunicative content would be the content of the speaker’s communicative intention in
making the utterance. On a more natural understanding, information is not communicated unlessthere is uptake by the audience, as well as the intention to convey the information. Thus, thecommunicative content of an utterance could be understood as that part of what the speakerintended to communicate that was recognized by the audience. And there are other possibilities.
On some views that have recently entered the legal interpretation debate, communicative content
is something like what a reasonable member of the audience would understand the speaker tohave intended to communicate. (I discuss this type of content below as part of a family ofcontents that depend on the understanding of a reasonable member of the audience.) Differently
again, there is that part of what the speaker intended to communicate that a reasonable member

44

See, e.g., Soames XX.

40

of the audience would be expected to recognize. For our purposes, nothing turns on which ofthese contents is communicative content properly understood. For even if a content is notcommunicative content – indeed, even if it does not play an important role in the study oflanguage – it may be highly relevant to the content of the law. In section 8, I elaborate on
potential determinants of the content of the law that are not linguistic contents.
In recent years, theorists of legal interpretation often appeal to what they call “public
meaning” or “objective meaning.”45 These terms are not standard technical terms in the study oflanguage. Roughly, the idea is to appeal to the understanding of a reasonable member of theaudience. But there are many different notions of public meaning. For example, one dimension
on which notions of public meaning vary is the object of audience understanding. We havealready encountered the notion of what a reasonable audience would understand the speaker tohave intended to communicate. Varying the object of audience understanding yields othernotions: what the audience would understand the semantic content to be; what the audiencewould take the speaker to have asserted or committed herself to (as opposed to merely
implicated); what legal norm the audience would take the legislature to have intended to enact;46
what legal norm the audience would take the legislature to have enacted. Many notions of public
or objective meaning — such as the notion of what legal norm the audience would take thelegislature to have intended to enact – are not concerned with linguistic meaning at all, and manyothers are not important theoretical notions in the study of language. For this reason, I discuss
notions of public meaning in section 8, which concerns determinants of the content of the lawthat are not linguistic contents.

45
46

Citations.
In section 8, I introduce the term legal intention for such an intention.

41

It should be clear at this point that there are multiple candidates for linguistic contents
that are determinants of the content of the law: so far, we have at least semantic content, what issaid, speaker meaning, different notions of communicative content, and the family of ‘public
meaning’ notions. There are many other possibilities. Solum, for instance, develops a notion ofclause meaning by starting with semantic content and modifying it, for example by adding
certain contextual effects, implications, and stipulations. There are more fine-grained
distinctions as well. For example, there are many types of implicatures, and it may well be thatsome types are relevant to the content of the law, while others are not.47
I want to forestall one natural misunderstanding. It might be thought that what I havebeen calling “different types of linguistic meaning” represent different and competing ways ofreading texts. It might even be thought that the existence of different types of meaning implies
some kind of indeterminacy about the meaning of texts. But this is a mistake. The different
types of linguistic meaning are not in competition with each other in a way that would make it
coherent for the meaning of a text to be indeterminate between them (or for one of them to be“the meaning” of a text). Rather, the point is that there are different types of meaning that playdifferent and compatible – indeed complementary – roles in language and communication.
For example, on a theory that recognizes semantic content, what is said or asserted,
speaker meaning, what is conversationally implicated, and what is (successfully) communicated,
there is no coherent debate about whether “the meaning” of an utterance is one of these contents
rather than another. The utterance may determinately have all these different types of meaning.
On a particular occasion, the words uttered have a semantic content, and the speaker uses that47

See Greenberg 2011 XX.

42

semantic content to assert a particular content. What the speaker means may go beyond what is
asserted, for it may include what is conversationally implicated. If things go well, the audience
may use the semantic content of the words, among other things, to infer what the speaker means,
resulting in successful communication of the speaker meaning. But the audience may fail toinfer part of what the speaker intended to communicate, so what is successfully communicatedmay be only part of what the speaker intended. There is no sense in which, for example, thesemantic content, the speaker meaning, and what is successfully communicated are competing
readings of the text.
A very different point is that, as I have already hinted, there is a lively debate among
different theories of meaning. Some disputes are about relatively fine-grained issues, such as
how to understand what is said and how different it is from semantic content. But the study of
meaning is a relatively young field, and there are radical disagreements about the most fruitful
way of carving up the phenomena.48 Again, I do not mean to suggest that the existence ofcompeting theories implies any indeterminacy about meaning. No doubt some theories will turnout to be better than others. The significance for legal interpretation is that, at least at this stage
in the study of language and communication, theorists of legal interpretation cannot simply defer
to one consensus model of what the relevant types of meaning are.
One immediate consequence of the existence of different types of linguistic content – notto mention candidates that are not linguistic contents – is that a theory of legal interpretation that
insists that its preferred candidate is the only available one is flawed. For example, many
theorists have tried to argue that there is no alternative to seeking the intentions of framers or

48

Citations to, for example, dynamic semantics, relevance theory, radical pragmatics.

43

legislators, for example on the ground that texts without intentions are just marks on paper.49
Conversely, Solum defends his favored ‘clause meaning’ by arguing that, because the framers of
the Constitution did not have the intentions constitutive of speaker meaning, the meaning of
constitutional provisions must be their semantic content (with certain modifications).50 Sucharguments neglect many alternative candidates.
A second consequence is that theories of interpretation that assign a role to “the meaning”
of the relevant texts, without elaborating the specific type of linguistic content, areunderspecified. Similarly, it is common for legal interpreters to make claims beginning “themeaning of a text is,” and concluding with a preferred candidate, such as what the speakerintended to communicate or what a reasonable member of the audience at the time would havetaken the words to convey. Unfortunately, given the multiplicity of types of linguistic content,
no such claim can be correct.
A related pitfall is to specify a type of meaning that, in light of what we know from thestudy of language, is not well defined. For example, one might be tempted at first blush to taketextualists to be concerned with semantic content. Their emphasis on texts naturally suggests themeaning that is encoded in the text. But prominent textualists urge that the relevant factor is not
literal meaning. Along the same lines, contemporary textualists endorse canons of interpretationsuch as inclusio unius est exclusio alterius (the inclusion of one is the exclusion of another) thatare probably best understood as ways of getting at what the speaker intended to communicate.51
But textualists reject the idea of looking to the content of the speaker’s intentions.

49

Citations
Solum XXX at 52.
51
See Manning XXX.
50

44

Similarly, many legal theorists, including textualists, assume that linguistic meaningchanges with context in a way that is not accepted by mainstream views about language.

On

standard views in the philosophy of language, what textualists mean by context – roughly,surrounding language – is not a determinant of meaning. Rather, context is thought to provide away of inferring the intentions of the speaker. It can be evidence, for example, of what the
speaker intended to communicate. In Smith, the famous case concerning the phrase “use a gun”,
Justice Scalia suggests that the meaning of “use” changes depending on the context, so that insome contexts, it means something like use for its intended purpose. The study of language
provides no support, however, for the idea that the meaning of words varies with context in thisway.

8. Candidates other than linguistic contents
The Other Determinants Principle: A theory of legal interpretation must recognize
potential determinants of the content of the law other than linguistic contents.
There are candidates for determinants of the content of the law other than linguistic
contents. One example we have already encountered is the content of the legislature’s orframers’ legal intentions.
Intentions of lawmakers are an important source of potential determinants of the content
of the law, and, just as it is important to distinguish different types of linguistic content, we must
distinguish different kinds of intentions. First, there are intentions to produce certain
consequences in the world, such as to reduce crime or to stimulate research into alternative
energy sources. Such practical intentions are typically to modify behavior in a particular way.
45

Second, lawmakers may have legal intentions – intentions to modify the content of the law by,for example, creating new legal obligations or powers. Third, they may have various kinds oflinguistic intentions, such as which language they intend to be writing in and which particular
words they intend to use. An especially important category of linguistic intentions arecommunicative intentions, for example, the intention to communicate a particular content by
uttering a given linguistic expression.
Linguistic intentions are intimately related to the linguistic content of the relevant texts.
As noted above, for instance, Gricean accounts maintain that speaker meaning is constituted by
the content of a specific kind of communicative intention.
Legal intentions, by contrast, are fundamentally distinct from linguistic intentions:because they are intentions to change the law in a particular way, they need not (and generally donot) include any reference to linguistic expressions or meaning. For example, a typical legal
intention might be to increase the penalty for a particular crime or to require employees ofrestaurants to wash their hands. Thus, legal intentions are a potential determinant of the content
of the law that is not any type or part of linguistic content.52
Another such determinant is the notion of statutory or constitutional purpose appealed toby purposivist accounts of legal interpretation. Hart and Sacks’s The Legal Process is often citedas the classic statement of this kind of approach. A court is to “decide what purpose ought to be
attributed to the statute … on the assumption that the legislature consisted of reasonable persons

The legislature’s legal intention, as I use the term here, must be distinguished from the legislature’s intention thatthe legal norm that it enacts apply or not apply to a particular activity – what we could call its application intentions.
For example, a legislature might enact a statute with the legal intention of requiring that people with contagious
diseases be quarantined on entering the country. The legislature might have an application intention that people
with psoriasis be covered by the statute, for the legislature might mistakenly believe that psoriasis is a contagious
disease. But that application intention is distinct from the legislature's legal intention. On the distinction between
legal and communicative intentions, see Greenberg 2011.
5246

pursuing reasonable purposes reasonably and to interpret the words of the statute immediately inquestion so as to carry out the purpose as well as possible.” The relevant purpose is not an actual
psychological purpose of any individual or group. Rather, it is a kind of constructed purpose that
we attribute to the statute on the basis of certain, probably counterfactual, assumptions, e.g., thatthe statute was the product of one rational mind.
We’ve seen thus far that some influential theories of legal interpretation appeal to
candidates that are not linguistic contents. It’s worth noting, in addition, that any serious theoryof law accepts that factors other than linguistic contents are relevant to determining the content
of the law. This point can easily go unnoticed when considering approaches that hold that aprovision’s contribution to the content of the law is a linguistic content, for example, its plain
meaning or communicative content. On any account, however, the content of the law depends
not merely on the linguistic content of the text, but also on such facts as that the text was enacted
in accordance with specified procedures by a certain authority. Plausibly, the relevant facts will
include things like the historical context in which the text was enacted. Moreover, accounts oflegal interpretation often appeal to real-world consequences and to moral values – democratic
considerations, rule of law, popular sovereignty – to support a preferred candidate for aprovision’s contribution to the content of the law. The implicit assumption seems to be that suchfactors have a bearing on how the content of the law is determined. And they lack even the formof linguistic contents.
It is often implicitly assumed that the role of democratic considerations, consequences ofan interpretive method, and the like is to favor one candidate content over others (or, lessplausibly, to help to determine what a text’s linguistic meaning is). But if such factors are
relevant to the content of the law, it can’t be assumed that this is the only kind of role they can47

play. Theories of law may assign a wide range of roles to factors other than linguistic contents.
On Ronald Dworkin’s influential theory, as mentioned, a statute’s contribution to the content of
the law is roughly the principles that would best fit and justify the statute’s enactment. On thistheory, the statute’s contribution is not any linguistic content of the statutory text, and moral
values play a more complex role in determining a statute’s contribution than favoring one
linguistic content over others.
Another kind of non-linguistic candidate for a determinant of the content of the law
emerges from consideration of the notion of ‘public’ or ‘objective’ meaning introduced in theprevious section. We saw, for example, that by varying the object of audience understanding, we
obtain a range of contents such as what the reasonable audience member would take thelegislator to have intended to communicate.
Such contents inevitably involve a degree of idealization or construction. We need to
specify what counts as a reasonable member of the audience, what knowledge a reasonable
member of the audience is taken to have, and so on. For example, it is often the case that manyor most members of Congress did not read the relevant words of a statute and therefore have nolinguistic intentions with respect to them. Moreover, to the extent that they have linguistic
intentions, the two Houses of Congress and the President may well have different linguistic
intentions. Are we to ask what a reasonable member of the audience who knows such facts
about the legislative process would take Congress and the President to have jointly intended?
Presumably not. We might rather ask what a reasonable person would take a single hypotheticalspeaker who had uttered the words of the statute to have intended.
At this point, it is clear that we are in the business of constructing a content. There arevarious ways to flesh out the relevant stipulations. Perhaps the single hypothetical speaker48

should be taken to be ideally rational. And what context should be stipulated? Theorists who
favor an objective notion of communicative content generally assume that we should take therelevant context to be ordinary communication or conversation. In ordinary conversation, astandard view is that the audience works out what the speaker intended to communicate byassuming that the speaker is trying to comply with certain principles, such as Grice’s principle ofcooperation and maxims of conversation. But why should we take the question to be what aspeaker who had uttered the words in ordinary communication and in compliance withconversational principles would have intended? The purposes and context of legislation are very
different from ordinary communication. We might instead ask what a single rational lawmaker
who had complied with all applicable principles of legislation would have intended.
The existence of candidates for a provision’s contribution to the content of the law otherthan linguistic contents reinforces the inadequacy of defending a theory of interpretation bysimply offering considerations that favor one’s preferred candidate over one or two other salient
candidates. For example, to defend the theory that a statute’s contribution is its communicative
content, it won’t do to argue that semantic content is too skeletal or is otherwise a poor
candidate. Even showing that one’s preferred candidate is better than all other linguistic contents
isn’t enough.

9. Legal interpretation and legal positivism

49

This section shows that satisfying the Linkage Principle is more difficult than might
initially appear. The most widely held contemporary theory of law is inconsistent with any
controversial theory of legal interpretation.
The Linkage Principle holds that a theory of legal interpretation is responsible to a theoryof law. Hartian legal positivism is the most widely held theory of law today, and is dominant in
U.S. law schools. Many theorists of legal interpretation seem to assume that some version ofthat theory is true, and many more would probably point to it if challenged as to which theory oflaw they presuppose.53 Perhaps surprisingly, however, Hartian positivism cannot form the basis
for a controversial theory of legal interpretation. According to Hartian positivism, thefundamental determinant of the content of the law is the convergent practices of judges and otherlegal officials. The problem is that, as a result, no theory of legal interpretation that departs fromthe consensus practices of judges can be correct.
On the Hartian account, the rule of recognition, which is the fundamental or ultimate
determinant of how the content of the law is determined, is constituted by the convergent
practices of judges and other legal officials. I will skip the details for present purposes, but thebasic point is that what makes it the case that a particular aspect of a constitution or a statutedetermines the content of the law is a convergent practice among at least a large majority ofjudges. For example, if judges: 1) regularly treat, say, a statute’s semantic content as its
contribution to the law; 2) are disposed to criticize other judges who fail to do so (or threaten to
fail to do so); and 3) regard such criticisms as justified, then a statute’s semantic content is its

53

For example, Larry Alexander explicitly claims that legal positivism supports his particular originalist approach tolegal interpretation. Alexander 2015. And, in a recent public exchange at the American Philosophical Association's
2014 Pacific Division Meeting, Scott Soames suggested that he would appeal to Hartian legal positivism as the basis
for his account.

50

contribution to the law. To the extent that there is no consensus on what constitutes a statute’s
contribution to the content of the law, a statute’s contribution is indeterminate.
The immediate consequence is that no theorist of legal interpretation can base her theory
on Hartian positivism if her theory is to prescribe any approach to legal interpretation thatdiverges from what is accepted by a large majority of judges. That is, a theorist of legal
interpretation who wishes to do anything but repeat the accepted consensus among judges needsa theory of law other than Hartian positivism. For example, an intentionalist or textualist
position on Constitutional interpretation is inconsistent with Hartian positivism. For there isanything but a consensus among judges that intentionalism or textualism is correct.
This objection is closely related to Dworkin’s argument from theoretical disagreement in
Law’s Empire. Dworkin argues that legal positivists cannot explain disagreement about the
grounds of law – about what are the ultimate determinants of law.
The problem that I am posing for theories of legal interpretation differs from Dworkin’s
theoretical agreement objection to positivism in several ways. Most importantly for present
purposes, Dworkin framed his argument as moving from the claims that theoretical disagreement
is common and that legal positivism is unable to account for it, to the conclusion that legal
positivism is flawed. Given this framing of the argument, Brian Leiter and others have pointed
out a way for positivists to respond.54 Positivists can argue that lawyers and judges who seem tobe engaging in theoretical disagreements are in fact either mistaken or disingenuous. For
example, when judges seem to be disagreeing about the role of plain meaning in determining thecontent of the law, they may simply be deluded in thinking that there is a fact of the matter on

54

See Leiter, XXX.

51

the question. In fact, the rule of recognition does not settle the question, so the law isindeterminate as to the role of plain meaning. Alternatively, the judges may be pretending toargue about what the law is, though they in fact realize that there is no answer. They maintainthe pretense for political reasons.
Whatever the merits of Leiter’s response as a response to Dworkin, his response is notavailable to a theorist of legal interpretation. A theorist of legal interpretation cannot take theposition that she is erroneous or disingenuous in claiming that own her approach to legal
interpretation is correct. If she accepts the Hartian view that the ultimate determination of thecontent of the law rests on the consensus practices of judges, she cannot argue that a nonconsensus method of legal interpretation is correct. In simple form, the dilemma is that thefollowing three propositions are inconsistent: 1) method of legal interpretation M is not widely
accepted; 2) method of legal interpretation M is legally correct; 3) legal positivism in its
dominant Hartian form is true.
In other words, my objection, unlike Dworkin’s, is directed at theories of interpretation,
not at legal positivism. Legal positivism can respond to Dworkin’s objection by accepting that
there is a significant amount of indeterminacy with respect to how the content of the law isdetermined. (And positivists can try to argue that indeterminacy at this level does not result inwidespread indeterminacy with respect to run-of-the-mill cases because all plausible accounts ofinterpretation overlap in their implications for such cases.) But a theorist of legal interpretation
cannot accept that it is indeterminate which account of legal interpretation is correct.
A positivist theorist of legal interpretation might try to argue that the correct account oflegal interpretation is made correct not by the rule of recognition, but by substantive law. For
example, some theorists have claimed that the correct account of statutory interpretation is52

determined by the Constitution. It is surely correct that there can be second-order legal standards
that govern legal interpretation. The problem, however, is that on the Hartian theory of law,
there can be legal standards that determine that a particular method of interpretation is correct
only if those standards are recognized by the rule of recognition. In other words, a reading of theConstitution, court decisions, or customs that determines that, say, intentionalism is the correct
method of reading statutes would have to itself follow from the consensus practices of judges.
Unfortunately, in the U.S. legal system, the consensus practices of judges do not yield secondorder standards that resolve the lively disputes over which method of legal interpretation iscorrect.
Alternatively, a theorist might argue that at a high level of generality there is a consensus
among judges on the theorist’s preferred method of interpretation, and that the disagreement is in
the application of that consensus. For example, it might be argued that there is a consensus thatthe communicative content of the legislative texts is determinative, but that some judges havemistaken views about what constitutes the communicative content. Or that there is a consensus
that a statute’s contribution to the content of the law is whatever the best understanding of
democracy says that it should be, but a disagreement about what democracy requires.
It is not at all plausible, however, that there is such a consensus. Judges do not all agree
that, for example, communicative content or plain meaning is controlling. They don’t even agree
that the linguistic content of the relevant texts is controlling. Nor do they agree that democratic
considerations are the relevant ones. The only kind of consensus is on bland platitudes such asthat the meaning of the relevant texts is important. There is neither a consensus of belief nor ofpractice on any of the issues on which theories of legal interpretation disagree.

53

10. Applications
Although the principles rest on extremely basic assumptions, they have surprisingly farreaching implications for a wide range of existing theories of legal interpretation. I havementioned a few examples along the way. In this section, I examine the implications of theprinciples for several theories of legal interpretation in more detail.
[This section remains to be written. What follows is really just a placeholder —discussion of one recent theory of legal interpretation. Ultimately, I plan to discuss influential
representatives of major camps.]

Scott Soames’s Deferentialism
Scott Soames, a prominent philosopher of language, has in recent years developed atheory of statutory and constitutional interpretation that he calls Deferentialism. According tothis theory, roughly, we should interpret a statutory or constitutional provision in accordancewith its asserted content except to the extent that that asserted content is in conflict with “thechief publicly stated purpose that proponents of the law advanced to justify it.” In case of suchconflict, “the judicial authority must make new law by articulating a minimum change in existing
law that maximizes the fulfillment of the original rationale for the law.” Soames identifies
asserted content with what a reasonable person who understood the meanings of the words andthe relevant background would take to have been asserted or stipulated by the lawmaker in
adopting the text.

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Soames does not try to show that the two main components of his account – asserted
content and publicly stated purpose – or the roles that he assigns to them have any basis in atheory of law.
First, he says very little about why the chief purpose that proponents of the law advanced
to justify it should get the extremely important role that he gives it in constituting theConstitution's contribution. He says only that this stated purpose is what is epistemicallyaccessible and worthy of deference. These considerations are plausibly relevant for normative
reasons (though Soames does not say so). For example, epistemic accessibility arguably mattersfor reasons of fairness and democracy. Similarly, one might argue that democracy does notsupport giving weight to policy goals of legislators that were not made public. If the view is thatthe content of the law depends on such normative considerations, then one needs a full-scaleconsideration of what is supported by all the relevant considerations. On the other hand, if thecontent of the law does not depend on such normative considerations, then it is unclear why they
are relevant to legal interpretation.
Second, with respect to asserted content, much of Soames’s argument is directed atshowing that the semantic content of the texts is not a good candidate. For example, Soames
insists that, in Smith v. United States (the notorious “uses … a firearm” case), "there is no real
alternative . . . to identifying the legal content with what Congress actually asserted." He simply
ignores all candidates that are not linguistic contents. As the Linguistic Multiplicity Principle
and the Other Determinants Principle make clear, eliminating semantic content falls far short ofshowing that asserted content constitutes the Constitution's contribution to the content of the law.
At various points, Soames relies heavily on an analogy to ordinary communication:55

according to Deferentialism, the content of a legal provision can nomore be identified with the meanings of the sentences in the text,
or with the lawmakers' policy goals in adopting it, than thecontents we assert ordinary life can be identified with the linguistic
meanings of the sentences we use, or with our conversational goals
in using them.… Legal content is determined in essentially thesame way that the asserted or stipulated contents of ordinary texts
are.
This theme runs through all of Soames's work on legal interpretation, so I take it to lie at
the heart of his argument. The first premise is that, in ordinary communication, the contents that
we assert can't be identified with the meanings of the sentences we use or with ourconversational goals. Soames then infers that the asserted content of legal texts can't beidentified with the meanings of the sentences or with the policy goals of the lawmakers. Thusfar, all of his claims are about language, and have strong support in the contemporary study oflanguage.
But Soames next seems to simply assume that the asserted content constitutes theConstitution's contribution to the content of the law. That is, he seems to move without
argument from the asserted content of the Constitution to the duties and rights it contributes tothe law. In taking for granted that the content asserted by the lawmakers constitutes theprovision’s contribution to the content of the law, Soames violates the Meaning Versus Law
Principle.
Most importantly, it is difficult to see what plausible and coherent theory of law could
underwrite Soames’s theory. On the one hand, his theory seems to claim on exclusively
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linguistic grounds that a particular version of ‘asserted content’ constitutes the content of thelaw. On the other hand, the theory apparently relies on normative considerations to displaceasserted content in specified circumstances, yet takes no account of other normative
considerations. What plausible theory of law could imply this structure?

11. Conclusion
A few basic principles of legal interpretation, which derive from difficult-to-dispute starting
points, have powerful implications. They provide constraints that theories of interpretation mustmeet and a framework for evaluating such theories.

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