The Intensionality behind Legal Concepts and Their Extensional Boundaries: Between Conventionalism and Interpretivism

• Date: 01 December 2016
• Author: Alexandra Arapinis,Angela Condello
• DOI: http://doi.org/10.1111/raju.12142
• Published date: 01 December 2016

The Intensionality behind Legal

Concepts and Their Extensional

Boundaries: Between Conventionalism

and Interpretivism

ALEXANDRA ARAPINIS and ANGELA CONDELLO

Abstract. This article constitutes an attempt to reexamine a crucial issue of legal

theory from the perspective of philosophy of language and of social ontology: by

analyzing a jurisprudential case recently decided by the U.S. Supreme Court, we

explain how Sear le’s account on rul es in The Construction of Social Reality constitutes

an important starting point for the clarification of the old jurisprudential debate

between conventionalism and interpretivism. In a nutshell, we show that Searle’s

framework, while strictly conventionalist, makes it possible to conceive of the dis-

tinction between the semantic content of rules (their intended purpose) and their

extension, by drawing a parallel with the idea of “deep conventions” (and “essential

rules”) as well as with the semantic conventions in natural language. The paper thus

touches on the broader problem of the relations between legal concepts and nonlegal

values (law and morality).

1. Law, Decision, Interpretation

1.1. A Debate in Jurisprudence

This article constitutes an attempt to connect two key issues in legal theory from

the perspective of philosophy of language and social ontology: the source of valid-

ity of law and how law is interpreted when actually applied by judges. Though

“reasoning about law” and “reasoning according to law,” as Raz (2010) puts it, are

two distinct issues, they are in fact deeply intertwined, as is clear from the long-

standing debate between conventionalists and interpretivists. In this paper, we will

show how Searle’s account of rules in The Construction of Social Reality (Searle 1995)

casts new light on the interplay between Marmor’s notions of constitutive and

deep conventions. We will argue that deep conventions, which are the most

directly relevant for interpretation, confer meaning not only on the system of con-

stitutive conventions, in the sense that they correspond to the underlying practice,

but also on the legal concepts introduced by constitutive conventions and inter-

preted in jurisprudential decision-making.

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Let us briefly reconstruct the jurisprudential debate that constitutes the back-

ground thesis of this paper by starting with a concrete example. When defining

legal institutions such as “property,” law describes what they consist of, such as

owning a tangible or intangible asset, thus indicating the functions, actions, sanc-

tions, and generally all the consequences that are attached to them: consuming,

renting, selling, transferring, exchanging, mortgaging, and so on. However, what if

the understanding of the concepts changes in time? What if, as is often the case, the

old forms of a conventionally accepted and defined legal concept (land or tangible

assets) are replaced by, or placed alongside, new forms that still belong to the same

area of reference, but are completely different (intellectual property, ownership of

“space” on the Internet)? When faced with hard cases, judges are called on to

answer these questions. Theories in this respect have developed into two main

schools of thought, which have been labeled in various ways (such as formalism

vs. realism, positivism vs. anti-positivism, conventionalism vs. interpretivism). We

will here refer to the debate between legal conventionalism (from here on conven-

tionalism, a sort of legal positivism) and interpretivism. In order to properly frame

the debate, a preliminary—though simplistic—remark is necessary. On the one

hand, legal positivists conceive of law as a set of rules, for which nonlegal values

do not count, whereas legal interpretivists claim that legal practice is, by its nature,

based on interpretation. According to conventionalists, legal validity or authority is

a social fact, conventionally established through social agreement and practice.

From this perspective, law has an essentially conventional character, since it is not

subject to an ideal or absolute morality, but rather to an accepted standard, based

on consent and agreement.

On the one hand, strict conventionalism is thus based on two main hypotheses:

(i) law is a system of a specific type of social rules, that are valid because they are

enacted, and as a result, moral or ideal considerations cannot and should not limit

or influence the scope and operation of the law; (ii) for this reason, no nonlegal

principles count in law (e.g., moral values), since the existence of laws is not

dependent on their satisfying any particular moral values of universal application

to all legal systems. The existence of laws depends on their being established

through decisions of human beings in society. The alleged “neutrality” of legal posi-

tivism stands on the focal role of the conventional procedures of establishment of

the rules: The procedure by which the law becomes “positive” is the basic argument

on which legal positivism opposed natural law and now opposes anti-positivism.

On the other hand, interpretivism is the view according to which a proposition

of law is true by virtue of an interpretive fact: in a nutshell, by virtue of the fact

that the proposition follows from the best justification of a community’s political

practice. Interpretation thus consists in the derivation of valid legal norms through

the application of an evaluative filter to a set of given norms. This theory was first

postulated by Ronald Dworkin as a critique of positivism in judicial reasoning, in

particular of Hart’s understanding of the interconnection between law, language,

and interpretation (see Dworkin 1977a, 1977b, 1986; Hart 1994, 1958).

Dworkin rejected the positivist conceptions of law and interpretation, instead

theorizing that individual rights are premised upon a comprehensive set of moral

precepts that make them valuable. Nevertheless, it is now generally recognized

that Hart never claimed that the law is simply a model of rules (in Dworkin’s sense

of rule), nor was he committed to such a position (Shapiro 2007, 4).

440 Alexandra Arapinis and Angela Condello

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C2016 The Author. Ratio Juris V

C2016 John Wiley & Sons Ltd. Ratio Juris, Vol. 29, No. 4