Delimiting Legal Interpretation: The Problem of Moral Bias and Political Distortion—the Case of Criminal Intention

• Published date: 01 June 2022
• Author: Izabela Skoczeń,Francesca Poggi
• Date: 01 June 2022
• DOI: http://doi.org/10.1111/raju.12344

Ratio Juris. Vol. 35 No. 2 June (191–222)

Delimiting Legal Interpretation: The

Problem of Moral Bias and Political

Distortion— the Case of Criminal

Intention

IZABELA SKOCZEŃ and FRANCESCA POGGI

Abstract. This essay criticizes Dworkin’s and Greenberg’s interpretivism using one concrete

example, namely, the interpretation of rules of criminal law pertaining to intentionality ascrip-

tions. In fact, according to interpretivism, some judicial interpretations of criminal intention

can be explained as practices that depart from legislatively communicated content to imple-

ment moral principles. We distinguish between a Kantian and a consequentialist approach to

criminal intention and claim that judicial practice can be viewed as an implementation of the

consequentialist approach which pulls apart the Kantian criteria communicated by the legisla-

tor. However, we argue that, in doing so, judges open the door to folk biases, political pressures,

and stereotypes that produce distorted and unfair results. To deal with this objection, inter-

pretivism would have to both claim that judicial practice is erroneous and provide a theory of

objective moral truth, yet it fails in both respects.

1. Introduction

According to a widespread view, law is a communicative phenomenon. Statutes are

made by people democratically empowered to introduce, modify, or eliminate them

to change the law, and it would be puzzling to assume that the content of a statute

is not the one it communicates. Moreover, legislation can play its typical function of

directing behavior only if the law’s addressees understand what the statute says and

behave accordingly. As a consequence, it may reasonably be argued that the enact-

ment of a statute is a communicative behaviour and that the content of law amounts

to what the statute says.

However, this standard picture has recently come under attack from antipositiv-

istic followers of Dworkin’s views on interpretation, such as Mark Greenberg. Mark

Greenberg and Ronald Dworkin both support the thesis— usually labelled interpre-

tivism (Stavropoulos 2021)— according to which the content of law is not primarily

* The research was funded by the Polish National Centre for Science (Harmonia Grant No.

2018/30/M/HS5/00254). The Authors would like to thank the entire Harmonia grant team for

helpful comments, as well as Andrzej Światłowski, Ewa Grzęda, Kamil Mamak, and Dominik

Zając for help in unearthing interesting case law.

© 2022 University of Bologna and John Wiley & Sons Ltd.

Izabela Skoczeń and Francesca Poggi192

Ratio Juris, Vol. 35, No. 2© 2022 University of Bologna and John Wiley & Sons Ltd.

constituted by the linguistic content associated with the authoritative text; it is rather

a set of rights and obligations that also depends on moral principles. Therefore, legal

interpretation does not amount to seeking the linguistic content of a statutory text,

but it aims to identify the set of moral “rights and obligations that obtained in virtue

of some enactment, even though the enactment’s having that impact was not consid-

ered and endorsed, in some specified sense, by the enacting institution” (ibid.). To

that end, interpreters cannot always escape moral considerations.1 The “master ques-

tion is what is morally required in light of the enactment of the statute, not what the

statute’s linguistic content is” (Greenberg2014, 1334).

This essay aims to substantiate some criticisms of interpretivism, using one con-

crete example, namely, the interpretation of rules of criminal law pertaining to inten-

tionality ascriptions. We go further than recent criticisms by Smith (2019) and

Goldsworthy(2019), who claim that moral requirements such as the presumption of

mens rea is an important part of the communicated content of criminal legal rules.2

We argue that, in the case of rules pertaining to criminal intentions, blind recourse to

factors beyond the content communicated by the legislator produces unfair results

and decisions distorted by various biases, which can in turn violate the basic princi-

ple of equality. Moreover, any departure from communicated content forced by fac-

tors such as probative difficulties, which license judicial activism, has to be in strict

consistency with the content communicated by the legislature. We claim that if this

consistency is not sustained, and unconstrained moral intuitions are allowed, as

Greenberg, for instance, suggests, the interpretive process becomes subject to bias

and distorts the effects of various factors, such as politics or gender.

We proceed as follows. First, we examine interpretivism in greater detail, fo-

cusing on the versions developed by Dworkin and Greenberg (Section2). We then

illustrate why judicial interpretation of criminal rules on intention is a good exam-

ple of a practice inspired by interpretivism (Section3). In particular, we analyse

how such an interpretive practice is engaged in by Italian and Polish judges and

which problems it raises in those legal systems (Sections3.1 and 3.2). We argue

that, according to interpretivism, both Italian and Polish judicial interpretations of

criminal intention can be explained as practices that depart from legislatively com-

municated content to implement a moral intuition. In particular, we distinguish

between a Kantian and a consequentialist approach to criminal intention, and we

claim that judges set aside the Kantian criteria communicated by the legislator

to implement a consequentialist approach, which, in turn, is consistent with, can

be drawn from, and surely justifies other criminal rules (Section4). However, we

argue that, in doing so, judges open the door to folk biases, political pressures, and

1 Both Greenberg and Dworkin maintain that judges do not need to engage in moral consider-

ations, especially in easy cases (Dworkin1995; Greenberg2014, 1335– 6).

2 As we take it, Smith’s and Goldsworthy’s theses appear to be part of a broader thesis exten-

sively advocated by Baude and Sachs(2017) claiming that rules of interpretation are also part of

the law and thus are part of the linguistic content of the law. They call it the law of interpreta-

tion. Moreover, Smith claims that so- called retrospectively operating modifier laws (which alter

the linguistic content of previous legal rules) are an example confirming Greenberg’s theory, but

this claim also looks controversial if we assume that law and its linguistic content is broader, as

it encompasses the laws of interpretation. Note that the law of interpretation is practice- based

and descriptive: It is a basis for deriving rights and obligations, and thus no claim about objec-

tive morality is needed to produce a coherent theory.

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Ratio Juris, Vol. 35, No. 2 © 2022 University of Bologna and John Wiley & Sons Ltd.

Delimiting Legal Interpretation

stereotypes that lead to distorted and unfair results (Sections5 and 6). Finally, we

stress the implication that our criticism of interpretivism, if well founded, has for

legal interpretation. We argue that, in the case of criminal intention, interpretivism

would have to both claim that judicial practice is erroneous and provide a theory

of objective moral truth, neither of which interpretivism manages to do. In light of

this, following the linguistic content of the law wherever it is clear enough appears

as a value in itself (Section 6).

2. The Challenge of Interpretivism

Many varieties of interpretivism have been developed to date (Stavropoulos2021).

However, we focus only on two versions— those formulated by Dworkin and

Greenberg— which we briefly sketch in this section.

According to Dworkin, the content of the law is not the meaning of its statu-

tory texts or utterances, nor is it the content of any mental state of the legislature.

Statutory texts are just data, among many— such as case law and legal and policy

decisions— from which interpreters must derive the principles that best justify the

data itself. That is to say, according to this view, the interpreter starts from the data

to identify the set of moral principles that best fits and justifies those data as a whole.

This is the core of what is usually called principled consistency, and what Dworkin

calls the principle of integrity. As far as adjudication is concerned, the principle of

integrity instructs judges

to identify legal rights and duties, so far as possible, on the assumption that they were all cre-

ated by a single author— the community personified— expressing a coherent conception of jus-

tice and fairness. […] According to law as integrity, propositions of law are true if they figure in

or follow from the principle of fairness, justice, and procedural due process that provide the best

constructive interpretation of the community’s legal practice. (Dworkin1995, 225)3

Therefore, according to this view, the interpreter works with two sets of norms,

one comprising the norms conveyed by institutions and the other the moral prin-

ciples that represent the best consistent justification of the first set as a whole. The

interpreter “is to compare the two sets, and adjust the first in light of the second”

(Stavropoulos2021). The outcome of this operation is to identify the legally valid

rights and obligations. It follows that the principle of integrity “is decisive over what

a judge recognizes as law” (Dworkin1995, 218). Instead, a single statute’s enactment

changes the law only insofar as, in changing the data, it also changes the set of prin-

ciples that best justifies such data (on this point see Greenberg2011, 227).

Greenberg defends a stronger form of interpretivism labelled “pure interpretiv-

ism.” He claims the following:

3 For extensive discussion of the idea see Brink2001; Burley2004; Cohen1984; Coleman2001;

Finnis1990; Gardner2012; Hart2012, Postscript; Hershovitz2006; Mitchell1983; Raz1972; 1986;

2001; Ripstein2007. Perhaps Dworkin dismissed this view in his last writings (see Dworkin2011;

2013). The point is debated, and we will not examine it here (see Waldron2013; 2019); instead,

we will focus our attention mainly on Law’s Empire (Dworkin1995).