Interpretation is a familiar feature of law and legal practice. For some legal theorists, interpretation is a central - even foundational - aspect of law. I argue that interpretation is a parasitic activity in legal practice. In other words, I want to disagree with those who make the case for interpretation as a basic or fundamental feature of law. While interpretation is certainly an important element of legal practice, it is an activity that depends upon existing and widespread agreement among legal practitioners with respect to most features of legal practice. In short, interpretation is not the firmament of law. The need for interpretation arises from the firmament of praxis. That is, interpretation in law arises from established forms of action that all participants recognize and employ whenever they make, appraise, and adjudicate claims about the state of the law. Interpretation is grounded in a distinct form of discursive action that we recognize as legal in nature. Thus, before we can truly understand the role of interpretation in law, we must first explicate the particular form of understanding we identify as legal. Only with a clear view of the nature of understanding in law can we then properly explicate the nature and scope of interpretation in law. When we look at how participants in law engage in interpretation, the activity can best be described by three general principles. These principles capture what it is that lawyers do when they, of necessity, interpret the law.
Interpretation in Law,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol42/iss2/11