Authentic Interpretation

• Published date: 01 March 2020
• DOI: http://doi.org/10.1111/raju.12271
• Author: Timothy Endicott
• Date: 01 March 2020

© 2020 The Authors. Ratio Juris published by University of Bologna and John Wiley & Sons Ltd.

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution

and reproduction in any medium, provided the original work is properly cited

Ratio Juris. Vol. 33 No. 1 March 2020 (6–23)

Authentic Interpretation

TIMOTHY ENDICOTT*

Abstract. I approach the identification of the principles of legal interpretation through a dis-

cussion of an important but largely forgotten strand in our legal heritage: the idea (and at

some points in English law, the rule) that the interpretation of legislation is to be done by the

lawmaker. The idea that authentic interpretation is interpretation by the lawmaker united the

Roman emperors Constantine and Justinian with Bracton, Aquinas, King James I of England,

Hobbes, and Bentham. Already in the early 17th century, a new modern approach was emerg-

ing in England. The modern approach separates the interpretive power from the legislative

power, and allocates the interpretive power to an independent court. I argue that there are some

cogent, general considerations in favour of the modern approach. But it is worth identifying the

elements of good sense that made it seem that the interpretive power ought to be reserved for

the lawmaker. And it is worth identifying the drawbacks in the modern approach; I argue that

they are highly relevant to the complex question of how judges ought to interpret legislation.

1. Interpretation and the Dual Aspects of Law

Legal interpretation is a crucial nexus between the factual and the normative aspects of

law. As Professor Robert Alexy (2010) says, law’s two aspects are “dual.”1 The normative

aspect of law is its existence as a dynamic system of norms, answering an array of inter-

connected questions as towhat is to be done in a political community. The factual aspect

of law is a set of events with a history; it is also a set of dispositions of persons and agen-

cies at the present moment. That set of events and that pattern of dispositions (we can

call the complex a “practice”) can be identified as a matter of fact, from an external point

of view (the point of view that you or I might take as observers). The factual aspect of law

is itsexistence as a practice (including the practice of treating the law as a system of

norms, and the practice of treating decisions—legislative, executive, judicial, public, and

private—as having normative force). The norms are to be identified from the internal

point of view (the point of view that you or I might take in deciding what to do)—

although any of us might identify the norms of the system without adhering to it or

taking that point of view, as long as we can understand it.

1 Cf. Alexy 2013, 97: “[...] law necessarily comprises both a real or factual dimension and an

ideal or critical one. The real dimension consists of authoritative issuance and social efficacy, the

ideal refers to moral correctness.” I think that the terms real and ideal are potentially misleading:

I do not think that the normative aspect of law is less real than its factual aspect, and although

there is an association between every norm and an ideal (understood as something that is to be

hoped for and aspired to), I would rather focus directly on what is to be done, rather than on

what is ideally to be done. So I will speak of the factual and normative aspects of law.

*I am grateful for advice from Professor Wolfgang Ernst.

7

Ratio Juris, Vol. 33, No. 1 © 2020 The Authors. Ratio Juris published by University of Bologna and John Wiley & Sons Ltd.

Authentic Interpretation

The two aspects of law are dual because of the connections between them. And

legal interpretation is a crucial connection between the law as a practice, and the

normative content of the law. Legal interpretation can be a principled activity only

insofar as the interpreter holds the two aspects of law in the right relation.

I think that legal interpretation can be a principled activity. In this essay I will

attempt to identify its most basic principles. By principles, I mean the abstract major

premises that you and I and anyone engaged in legal interpretation ought to adopt

in reasoning as to our own conduct as interpreters: that is, in reasoning as to whether

to interpret, and what to interpret, and what would be a good interpretation (and

which putative interpretations are not interpretations). If we do not abide by those

principles at all, we are not really interpreting, even if we would like to think that we

are. And in order to interpret well, we need to abide by those principles intelligently

and faithfully.

I will approach the identification of those principles by way of a discussion of an

important but largely forgotten strand in our legal heritage: the idea (and at some

points in English law, the rule) that the interpretation of legislation is to be done by

the legislator. The idea is that only interpretation by the authority that made the law

is authentic. Authentic interpretation is, in fact, a very old technical term for interpre-

tation by the lawmaker. I will argue that there are some cogent, general considerations

in favour of the modern approach, which is to separate the interpretive power from

the legislative power (and from other lawmaking powers), and to allocate it to an in-

dependent court (Section 4). But it is worth remembering that the modern approach

is a newfangled form of separation of powers (and not, as modern law students may

assume, a necessary feature of the nature of law). And it is worth identifying the

elements of good sense that made it seem that the interpretive power ought to be

allocated to the lawmaker. And it is worth identifying the drawbacks in the modern

approach; they are relevant to the complex question of how judges ought to interpret.

The argument supports an account of the basic principles of legal interpretation

(Section 5), which I set out to explain and to defend:

0. the principle of legality;

1. the principle of conferral of lawmaking power;

2. the principle of conferral of interpretive power;

3. the principle that the purpose of legal interpretation is to provide a norm for the

application of the law;

4. the principle that the discretions that result from interpretive power are to be

exercised justly and for the public good.

And it supports a general account of those principles: They are the structural re-

quirements that legal interpretation must meet, if the interpreter is to make the right

connection between the two aspects of law. Legal interpretation determines the nor-

mative effect of the fact of a lawmaking decision.

As a test case to focus the discussion, I would like to introduce you to

SturgeonvCondor, a decision of the Court of Justice of the European Union (CJEU).2

It is one of my favourite examples of a kind of case that you too may have

2 Judgment of 19 November 2009, Sturgeon v Condor Flugdienst GmbH, Joined Cases C-402/07

and C-432/07, EU:C:2009:716 (hereinafter Sturgeon v Condor or Sturgeon).