Vol. 14 No. 5 (May 2004), pp.305-311

LAW AND LEGAL INTERPRETATION, by Fernando Atria and D. Neil MacCormick (eds). Burlington, Vermont: Ashgate Publishing Company, 2003. 594pp. Hardcover $210. £115. ISBN: 0754620212.

Reviewed by Yu Xingzhong, Department of Government and Public Administration, The Chinese University of Hong Kong. Email: xzyu@cuhk.edu.hk

With the publication of LAW AND LEGAL INTERPRETATION, the editors and the publisher of International Library of Essays in Law and Legal Theory have made another great contribution to the study of law and legal scholarship. Collected in this volume are a selection of previously published papers on law and legal interpretation written by leading scholars of jurisprudence and legal philosophy. It is a representation of many heated debates and discussions on the topic, a systematization of ideas and views expressed by scholars of different schools of thought, and a good basic textbook for the beginners in the field.

The interpretive turn in jurisprudence since the end of the twentieth century has yielded an enormous amount of literature that constitutes a new perspective of law and legal institutions. From the debates on original meaning of the constitutional provisions, to the study of legal reasoning in a more general sense, to the similarities and differences between legal interpretation and legal reasoning, the enthusiasm in the interpretive enterprise has affected almost all fields of law and attracted the attention of many legal scholars. As a result, many competing views and various ideas on legal interpretation have been offered in academic journals and as book chapters. Despite the apparent prosperity of the field, however, it is in fact not easy to have a comprehensive and systematic understanding of these debates and discussions, as the debates were carried out sporadically in various venues of publication. For better understanding of the nature and substance of the interpretive turn in law, it has become necessary to have something like an anthology. LAW AND LEGAL INTEPRETATION has fulfilled that task.

As a reader, I find this collection meaningful in at least three ways. First of all, it presents a somewhat systematic understanding of the interpretive turn in law so that one could easily, if one wants to, grasp the nature and substance of the most important movement in jurisprudence at the end of the last century without having to go through academic journals one by one to get a glimpse of what has happened. It is a tailor-made work that serves both the diligent and not-so-diligent scholars.  Secondly, as such it can both provide clues for in-depth research in the related subject and serve as a textbook providing guidance for beginners and curious as well.

The third way is even more important. By putting together such a collection the authors have actually worked to shape a theory of interpretation that is especially devoted to the field of law. This needs more explanation. The contemporary [*306] discussion of legal interpretation in the United States and elsewhere accommodates a variety of views employing interdisciplinary means and languages.  Among the authors who hold those views, many speak directly from literary, philosophical, linguistic, and religious perspectives.  The explicit and implicit deference to scholarly authorities like Davidson, Gadamer, Heidegger, Quine, and Schleiermacher, has enriched the scope of discussion, but at the same time, dictated the direction to which theories about legal interpretation may move.  The discussion is very often focused on the authenticity and necessity of legal hermeneutics, or on the similarities between literary interpretation and legal interpretation.  Rarely do people take special interest in developing a theory of interpretation particularly concerning law. Since law is expressed in the form of language and therefore has general characteristics of language, interpretation of law is necessarily of texts.  But as legal texts differ significantly from other types of documents, legal interpretation also possesses its own features. Granted that interpretation in law is analysis of some sort, but interpretation in law is not as metaphysical, exciting and optional as in philosophical or literary construction. Rather it is a painstaking, harsh, and sometimes cruel practice, which has its own inner logic and innate characteristics. The essays collected in this book explicitly concentrate on the interpretation of legal phenomena as a real and practical artifact, rather than a subject for philosophical speculation. 

One question that readers might have is whether the selected papers in the collection are faithfully representative of the whole terrain of the study of legal interpretation—that is, whether the picture presented here is complete, true and authoritative. While it is possible that the editors may have chosen only those articles which they deem to be important and may have left out those which are equally important but don’t interest them for some reason, it is helpful to note that the editors, Fernando Atria and D. Neil MacCormick, are themselves recognized authorities in the field and have written extensively on the subject. In addition, a brief look at the organization of the book would certainly dispel any suspicion in that regard.  

Structurally, the book is arranged into six parts with essays in each part on different topics, totaling 19 essays. The issues addressed in each section are, respectively, the importance of interpretation for law, interpretation and legal reasoning, interpretation and application of legal rules, legal interpretation and politics, interpretation and objectivity, and justification and coherence in judicial decision-making. Obviously, these are the core issues that have been hotly debated by legal scholars in the past several decades and a collection organized around these topics is basically true to the real world of the legal hermeneutics. But the scope of the 19 essays actually is much richer and covers more issues than the headings under which they have been arranged. Furthermore, major thinkers in the field such as Ronald Dworkin, Joseph Raz, Robert Alexy, Neil MacCormick, Roberto Unger, Robert Summers, Aleksander Peczenik, and Stanley Fish, to name just a few, are all included. The collection of the papers is preceded by an introduction written by the editors, which succinctly summarizes the main points of the various authors, providing [*307] quite clear guidance for understanding them in the collection.

The meaning of legal interpretation, which is the substance of Part I, is a very important issue but begs no easy answer. The issue of meaning is an abstract, unclear and complex concept which may not have a unified definition. Meaning embodies intertwined relations with regard to history, culture, psychology and practice. Without meaning, it is impossible to imagine human existence. Legal interpretation, as a tool for studying the phenomenon of law and for the process of explaining law and legal rules, represents the complex interaction among the interpreter and the linguistic and real worlds. The first question to ask about legal interpretation is hence, naturally, what is its meaning. Perhaps we need legal interpretation simply because we want to do something other than what has been restricted by the legal provisions concerned, or perhaps there is really an issue of ambiguity, gaps, and even loopholes in certain legal rules. But Dworkin and Raz have their own views about this. Dworkin’s piece, entitled “Law, Philosophy and Interpretation,” artfully expressed the idea that interpretation is constitutive of law, which has opened a new chapter in the scholarship of legal hermeneutics and attracted extensive attention and enthusiasm. For Raz, interpretation of law may reveal something relating to the nature of law which we must not neglect. Thus the importance of interpreting law goes beyond the interpretation itself. It also helps us to understand the larger phenomena of law and legal practice.

Part II deals with interpretation and legal reasoning, the two closely related topics that have enjoyed varied degrees of emphasis in different traditions of legal scholarship. For continental lawyers, interpretation seems to be a more preferred term, as the legal systems of continental countries are mainly statute-oriented—and the statutes need to be interpreted. For common law lawyers, legal reasoning occupies more space, as the common law is case-based, and the judicial decision-making process in common law is primarily a reasoning process which utilizes precedents. In this collection the editors’ eyes are focused on the relationship between law and morality as it is reflected in interpretation and legal reasoning. In his “Law as Practical Reason” Detmold addresses the practicality of law and legal reasoning. He believes that legal reasoning is practical in the sense that its natural conclusion is an action. Detmold distinguishes “apply what is reasonable” from “apply what is reasonable to apply,” implying that the judge is bound by law insofar as he or she is not supposed to discuss what is reasonable. For him what is reasonable is specified by the rule of recognition, and there is no question of re-deliberating that question. Fernando Atria’s essay, “Legal Reasoning and Legal Theory Revisited,” deals with the relationship between legal theory and legal reasoning. For him the correctness of a legal theory can be seen from the acceptability of legal interpretation and legal reasoning that legal theory endorses. A third essay included in this part is Michael Moor’s “A Natural Law Theory of Interpretation,” which addresses issues like meaning, legislative intent, precedent, and values, from the perspective of a natural law theory, putting forward an affirmative perspective on law and morality.

[*308] Both legal interpretation and legal reasoning concern application of legal rules. Every rule is formulated within a certain context but does not explicitly reflect that foundation.  The background comprises the elements of the time, the place, the reason, the process, and the people who make the rule.  Once a legal rule is written down in the form of language, it loses its background simply because of the inherent limit of language.  In this sense, a legal rule is not indeterminate, it is too determinate.  As a legal rule cannot possibly register all elements of the context, it is, in effect, a form of the law it is intended to embody, possessing only a suggestive function; whereas the real substance of law dwells in the background. This linguistic double jeopardy has made the application of legal rules all the more difficult, if not totally impossible.

Can general rules solve particular questions? What is the role of logic in the application of legal rules? Are application and justification discourses separate processes or a combined practice? Those are the issues taken up by Part III, which addresses vagueness and defeasibility of legal rules. Traditional view holds that rules are applied to cases in a deductive manner; Carlos Alchourron questions that ideal model. He argues that because of the vagueness of the natural language used in presenting rules, and because of the defeasibility of rules, that model ideal is both impossible and undesirable. Robert Alexy considers the basic difference between application and justification. His view is that any discourse of application necessarily includes a discourse of justification upon which its results depends. Klaus Günther, however, sees quite opposite. He believes that a norm is justified insofar as it can be shown to be in the interest of all those who are affected. But from the fact that a norm is justified it does not follow that it has to be applied to all cases, because sometimes circumstances may have changed. Zenon Bankowski sees the conflict between generality and particularity, formalism and rule-skepticism, in a higher moral ground. He transforms the discussion of rule-governed decision-making into a discussion of the conflicts between the logic of law and the logic of love. For him, love transforms the systemic world of law into legality, where law and love do not destroy one another.

Part IV focuses on legal interpretation and politics. It includes Roberto Unger’s “Legal Analysis as Institutional Imagination” and a reply to his piece by Emilios Christodoulidis. Over the years Unger’s effort to reconstruct social theory and recast political practice has been quite consistent. He works on the contradictions inherent in the liberal legal order and the justifications that go with such an order. In this particular piece, part of a more substantial work on legal analysis, Unger addresses the issue of the political content of legal interpretation—in particular its potential for radical political change. Unger focuses on the contradiction between rights of choice and the rules designated to ensure the effective enjoyment of those rights, pointing out that the value of a right to choose is severely limited by lack of effective enjoyment of those rights, and that this has gradually encroached the legal consciousness and transformed the contemporary law. For Unger, rational legal analysis as embraced by mainstream writers cannot solve the perceived conflict. He argues [*309] for treating legal analysis as institutional imagination to be carried out by mapping and criticism in relation to legal categories and institutions, and the interplay between detailed institutional arrangements in law and the professed ideals those arrangements were intended to embody. Emilios Christodoulidis’s reply casts suspicion on Unger’s ideal blueprint by considering Unger’s theories of institutional imagination and reconstructed conceptions of rights. He points out that some fundamental concepts, such as solidarity rights, espoused by Unger cannott be translated into law because law is inherently premised upon the win-or-lose principle. 

Legal interpretation is by nature a work of creativity. But can it be objective? Is the interpreter restricted by anything or does he have total freedom in exercising the role of an interpreter? If he is bound, then what is it that binds him?  Is there coherence in judicial decision-making? What are the relationships between norms and facts? These are classical questions about the nature of legal interpretation and the indeterminacy of law, to which many competing answers have been given. The interpreter is a subjective person and is capable of subjective interpretation, but he is also bound by the subject matter he interprets, be it a statute or a case. The activity of interpretation cannot be wholly subjective, nor could it be absolutely objective. Part V and Part VI of the collection tackle these issues. Articles by Charles Yablon and Jes Bjarup address the indeterminacy issue from a Wittgensteinian perspective on rules and private language and offer insights on these tough questions. Stanley Fish, in his article, “Working on the Chain Gang,” challenges Dworkin’s view on the objectivity of legal interpretation. For Fish, Dworkin’s “chain novel” metaphor does not hold water, because the hypothetical dichotomy between “mechanical” and “free interpretation does not correspond to actual practice. Fish is of the view that a dualism of text and interpretation does not exist. The rigorous interpretive approach cannot admit that there is already a text awaiting interpretation at any point in the process.

Jan van Dunne explicates the differences between normative and narrative coherence in legal decision-making, arguing that this dualism follows Kantian dichotomy between norms and facts, which is not always accepted by scholars. For Dunne, the difference between normative and narrative coherence is distinctive at first sight only, and deceptive on closer scrutiny. MacCormick, in his article, “Reasonableness and Objectivity,” also addresses the relation between norms and facts. The lens through which he looks at this relation is the concept of “reasonableness,” which Hart also discusses in his work. MacCormick believes that, although there is a subjective element in every judgment of reasonableness, we can take our reflections beyond raw feelings and give them some objectivity in something like the idea of an “impartial spectator,” a phrase he draws from Adam Smith. Peczenik’s article, “Authority Reasons in Legal Interpretation and Moral Reasoning,” considers the role of authority reasons in moral and legal reasoning. He argues that the gaps between general legal premises and particular decisions can be covered by “authority reasons,” which include legal and moral rationales. This part also [*310] includes an influential article by Robert Summers which deals with two types of substantive influences typically embodied in common law legal reasoning. Summers distinguishes different types of reasons in law and legal interpretation, such as “authority reasons,” “factual reasons,” “interpretational” and “substantive reasons,” arguing that common law decision-making gives primacy to “substantive reasons.” The final article in the collection, co-authored by Jerzy Wroblewski and MacCormick emphasizes the importance of the text in legal interpretation and asserts that issues of interpretation are indeed central to legal thought and activity.   

On the whole the book is a feast of different tastes and views. It is a panorama of scholarly beauty. This review can hardly capture even the most important argument of any single piece in it, but I found it extremely rewarding to go through the volume. Scholars working in the field cannot afford not to read it, even though people may have different interpretations of it.


Alexy, Robert. 1989. A THEORY OF LEGAL ARGUMENTATION. Oxford: Clarendon Press.

Atria, Fernando. 2002. ON LAW AND LEGAL REASONING. Oxford: Hart Publishing.

Davidson, Donald. 2001. INQUIRIES INTO TRUTH AND INTERPRETATION. Oxford: Oxford University Press (2nd edition)

Dworkin, Ronald. 1982. “Law as Interpretation.” 60 TEXAS LAW REVIEW 527-60.

Fish, Stanley. 1990. IS THERE A TEXT IN THIS CLASS? Cambridge, MA: Harvard University Press.

Gadamer, Hans Georg. 1976. PHILOSOPHICAL HERMENEUTICS. University of California Press.

Greenawalt, Kent. 1995. LAW AND OBJECTIVITY. Oxford: Oxford University Press.

Günther, Klaus. 1993. THE SENSE OF APPROPRIATENESS. Albany, NY: SUNY Press.

Habermas, Jurgen. 1997. BETWEEN FACTS AND NORMS. Cambridge: Polity Press.

Heidegger, Martin. 1996. BEING AND TIME (Tr. Joan Stambaugh). Albany, NY: SUNY Press.

Kripke, Saul. 1982. WITTGENSTEIN ON RULES AND PRIVATE LANGUAGE. Cambridge, MA: Harvard University Press.

Leiter, Brian. 2002. OBJECTIVITY IN LAW AND MORALS. Cambridge: Cambridge University Press.

MacCormick, D. Neil. 1994. LEGAL REASONING AND LEGAL THEORY. Oxford: Clarendon Press.

Marmor, Andrew. 1998. LAW AND INTERPRETATION---ESSAYS IN LEGAL PHILOSOPHY. Oxford: Oxford University Press.


Peczenik, Aleksander. 1989. ON LAW AND LEGAL REASON. Dordrecht: D. Reidel.

Quine, Willard V. 1980. FROM A LOGICAL POINT OF VIEW. Cambridge, MA: Harvard University Press (Second Edition).

Raz, Joseph. 1992. PRACTICAL [*311] REASON AND NORMS, Princeton, NJ: Princeton University Press.


Schleiermacher, Friedrich. 1982. HERMENEUTICS, Atlanta, GA: Scholars Press. 

Smith, Adam. 1976. THE THEORY OF MORAL SENTIMENTS. D.D. Raphael & A.L. MacFie (eds.) Liberty Fund, Inc.

Unger, Roberto M. 1996. WHAT SHOULD LEGAL ANALYSIS BECOME? London: Verso.

Wittgenstein, Ludwig. 1999. THE PHILOSOPHICAL INVESTIGATIONS (3rd ed.). New York: Prentice Hall.

Copyright 2004 by the author, Yu Xingzhong.