Le giustificazioni interpretative nella pratica dell’interpretazione giuridica (The Interpretative Justification of the Practice of Legal Interpretation)

Abstract

The question at issue in the present essay is whether there is a reason to doubt the seemingly indubitable fact that the function of interpretive justifications of judges and lawyers is to show that certain interpretive judgments are correct. The conclusion is that there is a reason to doubt this fact: the reason is that judges and lawyers do not seem to attribute this function to their interpretive justifications, because their justifications do not have the content which is needed to perform such a function. Four theses are developed to support this conclusion. First, there are three meanings in which interpretive judgments could be said correct: grounded on facts; grounded on norms belonging to the legal system; grounded on moral norms. Second, an examination of interpretive argumentation indicates that interpretive judgments are to be conceived as moral judgments, whose correctness depends on moral norms. Third, to claim that an interpretive judgment is correct, the interpretive justification which is offered must have a premise that states a methodological principle, i.e. a moral norm prescribing a hierarchy of interpretive arguments to be used to attribute a meaning to legal texts. Fourth, the premise that states a certain methodological principle is a missing element in the interpretive justifications of judges and lawyers.