Minimalism: a closer look at judges as interpreters

Speaker: Raquel Barradas de Freitas
Series: UCL Legal Philosophy Forum (ULPF)

Abstract

Judges are paradigmatic interpreters because they are under a duty to interpret for others. Such a duty stems from an epistemic gap between judges and their addressees. I wish to suggest that, in adjudication, such a gap is bridged by an act of explanation. Judges interpret when they explain legal meaning.
The aim of my paper is to defend what I call a minimalist account of legal interpretation, which I support by defending three main claims or combinations of claims: (i) Legal rules are not interpretable and legal texts are not primary objects of legal interpretation. (ii) There is a relevant difference between interpretative authority (a form of epistemic authority) and legal authority (a form of practical authority) and interpretative conclusions can be epistemically authoritative without being exclusionary reasons for action. (iii) Interpreting and adjudicating are different activities. Interpretation explains, adjudication resolves. Legal interpreters do not typically produce legal rules: they are required to be guided by them.

The paper focuses on the relationship between interpretation and authority. I distinguish the role of judges as interpreters and as legal authorities. I suggest that in their capacity as interpreters, judges purport to offer their addressees reasons for belief of a certain kind. In particular, they purport to give them reasons to believe or accept certain interpretative conclusions, i.e. to believe them or accept them as true. By contrast, in their capacity as legal authorities, judges resolve legal disputes and, in so doing, purport to give the parties exclusionary reasons for action.

Interpretative conclusions are reasons for belief. Beliefs reached in virtue of interpretation can count among the reasons a judge has to reach a certain decision (A rather than B). Such beliefs are often part of the justification given for

a particular decision because the duty to interpret is subsidiary to the duty to justify a judicial decision. But interpretative beliefs are not legal reasons offered to the addressees of the purportedly authoritative adjudicatory act as exclusionary reasons for action. Interpretation and adjudication thus involve a claim to exercise two different kinds of authority – epistemic and practical.

Speaker

Born in Angola, Raquel was raised in Lisbon. She studied Law and briefly taught Legal Theory at Universidade Nova de Lisboa. She completed an Masters in Legal Research (2009) and a DPhil in Law (2014) at Oxford, supervised by John Gardner. She has been tutor in Jurisprudence at Oxford for the last five years.
Raquel’s research focuses on the concepts of interpretation and authority and their role in judicial decision making and adjudication. She is particularly interested in possible points of contact between jurisprudence and the philosophy of art – more specifically, between legal interpretation and the interpretation of works of abstract music, in the conceptual connections between emotion, belief and action, the distinction between reasons for belief and reasons for action, and in the possible applications of virtue ethics to a theory of adjudication and judicial reasoning. She is now Teaching Fellow (Jurisprudence) at UCL.