Realist Semantics and Legal Theory

Abstract

In "Legal Theory, Legal Interpretation, and Judicial Review", David O. Brink advocates a central role in legal interpretation for considerations of human purpose. He states:

'It is important to remember that the primary objects of legal interpretation - statutes, constitutional provisions, and precedents - like most objects of interpretation are human artifacts, the products of purposeful activity. In interpreting the products of purposeful activity, we must appeal to the purposes which prompted and guided the activity whose product we are trying to understand.'

The view that the meaning of human activities is best discerned from the point of view of the participants in the activity is one that is shared by philosophers from both the analytic and continental traditions. Like others who argue for consideration of purpose in the interpretation of law, Brink recognizes that no account of the purposive nature of law as a human activity can be complete without considering problems of meaning. In jurisprudence, this recognition finds specific focus in the problem of legal indeterminacy. Given the 'open texture' of legal norms, no theory of law can be adequate without some account of how problems of contextual indeterminacy are to be resolved. Indeed, without such an account, we cannot even make sense of the notion of 'disagreement' in law.