The Multidimensional Process of Interpretation: Content-Determination and Law-Ascertainment Distinguished
A. Bianchi, D. Peat and M. Windsor (eds.), Interpretation in International Law (OUP, 2015) 111-129
Amsterdam Center for International Law No. 2014-15
29 Pages Posted: 1 Mar 2014 Last revised: 11 Jan 2015
Date Written: February 28, 2014
This chapter is premised on the idea that international lawyers, while trying to give meaning to legal rules (content-determination) or while engaging in the identification of rules (law-ascertainment), necessarily commit themselves to certain techniques, rhetoric and traditions that are provided by the normative universe of international law. In doing so, this chapter, drawing on the insightful metaphor at the heart of this volume, argues that the object of the game of interpretation should be seen as multi-dimensional. Playing the game of interpretation consists not only of attributing meaning to the rules (content-determination), but also of ascertaining what is and what is not law (law ascertainment).
This chapter is structured as follows. Part II discloses the understanding of interpretation that the subsequent argument is premised on. Part III sets out the central distinction between content-determination and law-ascertainment as interpretive processes. Both the common and distinctive features of law-ascertainment and content-determination processes are discussed here, with a focus on the type of constraints that have been put in place to domesticate them. While constraints on content-determination processes have most of the time been envisaged as ‘rules’ in mainstream international legal scholarship, constraints on law-ascertainment processes, although often referred to as ‘secondary rules’, are better seen as indicative of a professional community’s practices and traditions. Part IV concludes with a few epistemological remarks on the place and the state of the debate on interpretation in contemporary international legal scholarship.
Keywords: international law, interpretation, interpretive processes, law-ascertainment, content-determination, Stanley Fish, Owen Fiss, textualism, intentionalism, purposivism
JEL Classification: K33
Suggested Citation: Suggested Citation