Is Interpretation in International Law a Game?
Forthcoming in: Andrea Bianchi, Daniel Peat & Matthew Windsor (eds), Interpretation in International Law (OUP 2014).
Amsterdam Center for International Law No. 2014-21
Postnational Rulemaking Working Paper No. 2014-02
26 Pages Posted: 23 May 2014
Date Written: May 23, 2014
The present chapter combines the ubiquitous metaphor of the language of international law with the analogy between interpretation and the playing of games. It asks how to possibly make sense of international law as a language and of interpretation as a game. Above all, it elucidates the linguistic assumptions embedded in established uses of the metaphor and the analogy. It ultimately argues that interpretation might not be well understood in analogy to games, not if the game is anything like the typical example of chess. Established approaches picture interpretation as a rule-governed activity. In turn, they see it as instructed by a given language, as ordered by a pervasive grammar, or as based on a set of constitutive background rules. But in law, as in language, we make the rules as we go along. There are a variety of good methodological, political, and strategic reasons for rejecting the dualism between a background scheme - be it a language, a grammar or a set of constitutive rules - and its execution. If that is so, how then can we still see interpretation as an ordered activity? A first answer fleshes out a view of interpretation as a creative practice in which actors struggle for the law. The practice is constrained and stabilized by tradition. A second, more radical, alternative demonstrates how and why it might make sense to argue that there is no language to play with. Interpretation then aims at a better understanding of the speaker, not of any language of international law.
Keywords: interpretation, language of international law, linguistics, sociolinguistics, semantic pragmatism, Donald Davidson
JEL Classification: K33
Suggested Citation: Suggested Citation