Legal Interpretation, Conceptual Ethics, and Alternative Legal Concepts

• Published date: 01 December 2023
• Author: David Plunkett
• Date: 01 December 2023
• DOI: http://doi.org/10.1111/raju.12395

© 2023 University of Bologna and John Wiley & Sons Ltd.

Ratio Juris. Vol. 36 No. 4 December (286–313)

Legal Interpretation, Conceptual Ethics,

and Alternative Legal Concepts

DAVID PLUNKETT*

Abstract. When legal theorists ask questions about legal interpretation—such as what it funda-

mentally is, what it aims at, or how it should work—they often do so in ways closely tethered

to existing legal practice. For example: they try to understand how an activity legal actors (pur-

portedly) already engage in should be done better, such as how judges can better learn about

the content of the law. In this paper, I discuss a certain kind of “conceptual ethics” approach

to thinking about legal interpretation, which is less tethered to existing legal practice (or the

existing meaning of core pieces of legal terminology). The approach I explore asks questions

about legal interpretation in a way that is tethered to what legal (or “legal-ish”) concepts people

should deploy, as part of arguments on behalf of engaging in legal (or “legal-ish”) practices

different from our current ones. In exploring this approach, I aim to help us better understand

the landscape of philosophical issues about legal interpretation, including parts of it that I think

have been underexplored.

1. Introduction

A common claim about legal practice—endorsed by legal practitioners and theorists

alike—is that “legal interpretation” is an important activity that judges and other legal

actors engage in. There is a range of different questions that philosophers ask about

what legal interpretation is, or about what it should be. One important question is what

the success-conditions of legal interpretation as such are; or, put another way, what the

constitutive aim of legal interpretation is. Another question is how judges (or other legal

actors) should engage in legal interpretation: for example, whether they should use a

“textualist” interpretative method, which (put roughly) hews closely to the “original”

meaning of legal texts, or a “purposivist” one, which (put roughly) looks to uncover the

“purpose” behind legislation. These two questions are tied closely together. For if the

constitutive aim of legal interpretation is to X, this provides a standard with which to

evaluate proposals for how judges (or other legal actors) should engage in legal inter-

pretation: namely, we can ask how well those proposals would allow them to X.

* Thanks to Hrafn Asgeirsson, Mitch Berman, Benjamin Eidelson, Natalie Dokken, Max

Etchemendy, Mark Greenberg, Sean Kim, Zachary Lang, Tristram McPherson, Corrado Roversi,

Adrian Russian, Scott Shapiro, Tim Sundell, Zoe Thierfelder, Elmar Unnsteinsson, Fangzhou

Yu, and an anonymous referee for helpful discussion and feedback on this paper, or on ideas

connected to it. Earlier versions of this paper were presented at the University of Bologna, the

University of Iceland, and Dartmouth College. Thanks to everyone who participated in those

discussions.

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Ratio Juris, Vol. 36, No. 4© 2023 University of Bologna and John Wiley & Sons Ltd.

Legal Interpretation, Conceptual Ethics, and Alternative Legal Concepts

When legal philosophers ask these (and other related) questions about legal inter-

pretation, they often do so in a way that is closely tethered to actual legal practice. In

short, they standardly want to better understand an activity (one aptly discussed as

“legal interpretation”) that legal actors already actually engage in, and how they

should do that activity, in order to do it better. In this paper, I want to put on the table

another set of questions about “legal interpretation” that are asked in a way that is

less tethered to actual legal practice. The questions are tied to a certain kind of “con-

ceptual ethics” approach to thinking about both “legal interpretation” and “law”. In

broad terms, the approach I explore asks questions about what legal (or “legal-ish”)

concepts people should deploy, as part of arguments on behalf of engaging in legal

(or “legal-ish”) practices different from our current ones. Somewhat more specifi-

cally, I focus on arguments that involve advocating for a change in what activity

should count as “legal interpretation” (at least in certain contexts), via making an

argument for shifting which concept the term ‘law’ (as used in stating a theory of

legal interpretation) is used to express.1 The idea of such an argument, in the versions

of it that I am interested in, is (roughly) to argue that certain people (e.g., certain

judges or legal theorists) should engage in this new activity (at least in certain con-

texts), rather than the activity we currently discuss as “legal interpretation”.

My aims in this paper with respect to this kind of approach to “legal interpreta-

tion” are relatively philosophically modest. I aim to get this sort of “conceptual eth-

ics” approach to issues about “legal interpretation” more clearly in view, and explore

how the issues it raises are distinct from other, related ones that have received more

sustained and more explicit critical attention. In discussing this approach, I aim to

help us better understand the landscape of philosophical issues about legal interpre-

tation, including parts of it that I think have been underexplored. Toward the end

of the paper, I also briefly discuss how issues raised by this approach might help us

see a certain kind of ideological role that statements about legal interpretation might

play, which we should be attentive to.

2. What Legal Interpretation Is

In order to situate the particular kind of conceptual ethics approach to “legal in-

terpretation” and “law” that I want to focus on in this paper—and the kinds of

distinctive issues it brings up—it will be helpful to say a bit more about the initial

two questions about legal interpretation that I introduced in the first paragraph

of the introduction. I will start by discussing them as asked in relatively standard

ways, which don’t have the same ties to the kinds of “reforming” or “revolution-

ary” views in conceptual ethics about ‘law’ that I eventually focus on. This will

help provide a useful contrast for better understanding the alternative kind of

approach I want to focus on.

Let’s start with the question about what the constitutive aim of legal interpreta-

tion is.

1 In this paper, I use single quotation marks (e.g., ‘shoe’) to mention linguistic items (as well as

to nest quotation marks within pairs of enclosing double quotation marks). I use double quota-

tion marks (e.g., “shoe”) for a variety of tasks including quoting others’ words, scare quotes,

and mixes of use and mention. I use small caps (e.g., ) to pick out concepts.