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Deep Interpretive Disagreements and Theory of Legal Interpretation Vittorio Villa 1. Introduction 1.1 Sources of deep interpretive disagreements This paper represents, at one and the same time, a refinement and a development of a

research programme on legal interpretation. Here I present some conjectural ideas on an important part of this programme, dedicated to deep interpretive disagreements (from now on DID).

I find this subject very interesting because it represents, and not by chance, a peculiar connection among three different subjects, which are at the core of my long-term research interests.

The first subject concerns, at the metaethical level, the problem of justification of ethical value judgments involved in legal interpretation. These judgments are frequently made by jurists, in the course of legal interpretation, in today’s rule of law systems.

The second subject concerns, at the level of legal theory, the construction of a theory of legal interpretation that could be able to explain how legal interpretation (and in particular constitutional interpretation) works in rule of law systems.

The third subject concerns, at the epistemological level, the problem of cognitive value of legal interpretation, even in cases in which it is carried out through value judgments.

DID represent a very peculiar kind of legal disagreement. Anyway, at a more general level, we must admit that, in the present time, our western communities are going through many important disagreements of different kinds, in many areas of public discourses: in politics, in ethics, in law. Many scholars have engaged themselves in studying this interesting phenomenon. If you look at the fields of political philosophy and ethics, for instance, you can easily notice that in the last few years there have been some important works on this subject1.

The causes of such a huge flourishing of disagreements are various and complex, but fortunately are not the direct subject of my paper. We already know, anyway, that the ethico-political culture of our western communities is permeated by ethical pluralism and, more generally, by the presence of profound divergences in worldviews, ideologies, styles of life. These are certainly important sources of disagreements. We could say, with the words of John Rawls (2005, XVI-XVII,) that the plurality of comprehensive reasonable conceptions (religious, ethical, philosophical) is a stable feature of the social life of our communities.

It is also important to add, in order to approach more directly the subject of my research, the complex cultural process that Guastini (1990, 185-206) calls “costituzionalizzazione”. This process took place from the sixties on, in the italian rule of law system as well as in other western rule of law systems. Making specific reference to Italian legal culture, it is enough to say that it has represented a process of transformation of our system, at the end of which it has been totally “impregnated” by constitutional norms. This process impinges particularly on the way in which jurists conceive and interpret constitution (by the way, in the following sections, I will use, unless otherwise noted, the general term “jurists” making common reference to legal scholars and judges).

The predominant conviction of jurists was that of the “pervasiveness” of constitution and of its capacity to directly influence every aspect of the life of the legal system. As a matter of fact, this process has determined in continental as in anglo-saxon countries, above all in the last few years, a sort of over-interpretation of the constitution. Interpretive attitudes through which legal decisions

                                                                                                               1) In the domain of political philosophy see, for instance, the books of Waldron (1999), and Gaus (1996), and the collection edited by Macedo (1999). In the domain of ethics, see, for instance, the works of Harman (2000) and Larmore (1996), and the collection edited by Gowans (2000).

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were taken (especially by higher courts) gave the constitutional text an extensive interpretation and a pervasive presence in the system. This phenomenon has globally increased the number of disagreements in jurists’ interpretive activity. As a matter of fact, constitutionally oriented interpretations have produced very different – and sometimes alternative – interpretations of Constitution2.

Coming back to disagreements, now, I have the impression that, at least in some of political studies, disagreement is just taken for granted, in order to analyse its impact for many other important problems (to ascertain, for instance, how legislation can manage it), and not studied in itself. By contrast, things have been different in legal theory, where legal disagreements, in recent times, have been carefully studied as a direct object of investigation (Besson 2005, Eng 2010, Luque Sanchez 2012).

Anyway, my opinion is that DID represent a very interesting phenomenon, examination of which shows something very important about the way in which law is interpreted and applied in rule of law systems. It helps us to understand more clearly, for instance, the nature and features of interpretation of constitutional provisions, and, furthermore, the way in which today the relationship between law and morals should be conceived. In relation to this, I stress that DID are paradigmatic instances of ethics’ great influence in the interpretive and applicative practices that take place in rule of law systems. This relationship could today be characterised as fluid (Villa 2004, 267). By this predicate I mean that in all those cases in which evaluative terms and phrases (contained in legal provisions expressing principles) are subjected to interpretation, legal reasoning, which assigns one or another meaning to these expressions, starts from ethical premises; that is, this reasoning needs to attach itself to one or another of the background ethico-political conceptions that lie outside the legal system, in order to direct the interpretive process. This process will then lead the interpreters, once they have come back inside the system, to give a specific meaning (taking into account the constraints related to fitness to other pre-interpreted legal materials) to those expressions. I have elsewhere reconstructed this process as sequential and dynamic (Villa 2012, 112-116).

Another important reason that could be able to explain the attention of legal theory to disagreements is related to Dworkin’s (1986, 31 ff.) critical attack on legal positivism. As a matter of fact, Dworkin accused legal positivism, in the updated hartian version, of not taking on board theoretical disagreements inside legal practices. In this paper, however, I will not comment on this issue, even if I hold that legal positivism, with suitable changes, can successfully respond to this criticism. The fact is that much of Dworkin’s criticism of legal positivism is based on mistakes and misunderstandings. Apart from that, I am convinced that Dworkin’s thinking, even if it is analytically not rigorous and characterised by extreme metaphysical and epistemological abstinence (Blanco 2001, 649-672), is an important source of stimulating suggestions for legal theory, and above all for theory of legal interpretation. In particular, Dworkin’s theses on interpretive disagreements represent an essential reference point for me.

1.2 The main theses of the paper DID represent a species of genus “legal interpretive disagreements”. The latter, in their turn,

are a sub-class of legal disagreements taken as a whole. DID are very profound and radical divergences that sometimes take place among jurists in legal interpretation.

In the next section I will try to give a definition of DID and to depict their main features. Now I would like to sum up the overall meaning of my theses on DID. As I said before, DID represent a very important phenomenon of today’s rule of law systems, but not in quantitative terms (their number is quite small in respect of the number of trivial and easy cases that pass through lawyers’

                                                                                                               2) On alternative interpretations of constitutional provisions, see Celano (2013, 103-105).

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offices and judges’ benches3), but in qualitative terms. They quite often involve interpretation of basic constitutional provisions, containing reference to values (through the use of some ethical expressions and phrases), and sometimes the complicated balancing4 of the values incorporated in these provisions: for instance, those values that are part of the definition of what is a “human person”, and those values that establish which features (such as “dignity”, “freedom”, “self-autonomy”, and so on) persons possess and which fundamental rights should be ascribed to them. The interpretation of these evaluative expressions5 raises important questions (the relationship between law and morals, the correctness of judicial answers to hard cases, the nature and role of value judgments involved in interpretation, etc.).

My main thesis, throughout the paper, will be that DID represent genuine, faultless and unsolvable disagreements, and share many important features with other kinds of disagreement much discussed today in contemporary philosophy of language.

In particular, a very important point stressed in the paper will be that these disagreements are faultless. That is, as far as contrasting interpretations go beyond the threshold represented by their cultural and semantic tolerability, they cannot be considered as the result of mistakes or misunderstandings by legal interpreters, but rather as the outcome of divergent but equally legitimate interpretations of those expressions and of the sentences incorporating them; and these divergences depend on more basic differences among ethico-political comprehensive conceptions that stay in the background of constitutions of rule of law systems’ constitutions.

We can come back, now, to two of the three important fields of research that are involved in the study of DID. It is possible, at the end of this section, to briefly state in advance the outcomes of my reflections on these two subjects.

Regarding the first subject, I will answer the question of “how to justify disagreements?”, and therefore I will try to offer a metaethical foundation of DID. Here my thesis will be that only a certain version of relativism could provide a persuasive justification to them.

Regarding the second subject, I will answer the question of “how to explain disagreements?”, and therefore I will present the theory of interpretation that is best equipped, in my opinion, to deal with this matter. My answer will be placed inside the recent contextualist and relativist theories of meaning and truth, and will give rise to an approach called pragmatically oriented theory of legal interpretation.

The various stages of the paper will be the following ones. In the second section I will present a definition of DID and will outline their main features. In the third section, I will reconstruct two paradigmatic instances of DID that are taken from

the italian judicial system and that belong to the field of bioethics (and particularly of the “end of life” problem).

In the fourth section I will discuss the metaethical implications of DID and will present my personal – and relativistic – view on the matter, criticizing the alternative justifications of expressivism ad objectivism.

In the fifth and final section, I will maintain that a pragmatically oriented theory is the most adequate approach to taking into account how interpretation works in cases of DID. I will present this theory in a modified version in respect of the original formulation (Villa 2012).

                                                                                                               3)  On this point I disagree with Brian Leiter (2012, 79 ff., 85-87), according to whom interpretive disagreements do not constitute a key phenomenon in our rule of law systems, either in quantitative, or in qualitative terms. 4) I’m not able here to give an extensive analysis of the notion of “balance” in legal interpretation. Cf., anyway, Pino (2010, chp 8); Bin (1992); Guastini (2011, part. II, chp 6). 5) These expressions could be inserted in the general category of natural language’ terms that today philosophy of languages calls interpretation sensitive terms (cf. Cappelen 2008, 23-46).

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2. Definition and main features of DID 2.1 A taxonomy of legal disagreements As I have already said, DID are a sub-class of the class of legal interpretive disagreements,

that, in their turn, are part of the more general category of legal disagreements. In drawing the lines of this last category I will make reference, for what regards the subjects of disagreements, to legal theorists, jurists and judges; and, for what regards the objects of disagreements, to the necessary linguistic dimension of all these activities (that is, to discourses of theorists, jurists and judges),

By “legal disagreements” I mean all the possible kinds of divergences, not necessarily in the form of contradictions, that can be detected in the discourses of legal theorists, jurists and judges, during their activities designed to take into account, interpret and apply – positive law (object-language) that is part of today rule of law systems.

The point of departure of all these discourses is constituted by what we can call, quite loosely, “legal field of experience”; but we do not need, for the purposes of my research, a more in-depth analysis. We can just limit ourselves to referring to all kinds of practices (linguistic or not) that (in one or another arrangement) can be taken to be part of the “positive law” of our rule of law systems. As a matter of fact, what is the object “positive law”, and “what it is made of” is a matter of disagreements too.

The arrival point of these reciprocally contrasting discourses is constituted by different kinds of “linguistic materials”: theoretical definitions (for instance, definition of “law”), constructions of “legal institutions”, explicit or implicit norms (as the result of one or more interpretations of legal sentences), and so on.

My taxonomy is quite different from those recently proposed by many scholars: Luque Sanchez (2012, 24-30); Ratti (2013, 143-145); Papayannis-Ramirez Ludena (2012, 219-221); Guastini (2012, 61-72). For instance, I do not distinguish, as Ratti does, between evaluative and non-evaluative disagreements: value judgments are involved in almost all kinds of legal disagreements, and for this reason it is not correct to build a single sub-class containing “value free” statements. Secondly, I do not distinguish, contrary to Guastini and Ratti, between applicative and interpretive disagreements: application of law, according to my theory of legal interpretation, is just one of the phases (the last one) of legal interpretation (Villa 2012, 187-189). For this reason disagreements related to application of law should be inserted inside the class of interpretive disagreements. Finally, I do not distinguish, as Guastini does, between disagreements concerning interpretation in astratto and disagreements concerning interpretation in concreto: there isn’t a qualitative difference between doctrinal interpretation and judicial interpretation.

Lastly, I would like to point out that, in distinguishing between theoretical disagreements and interpretive disagreements, I opt for referring to the subjects of disagreements and not to the objects. The reason is that it is much more complicated to differentiate disagreements from the point of view of the objects. As a matter of fact, there is a very tight interaction between theoretical and interpretive disagreements. The latter, very often, depend on theoretical divergences, and vice versa. In any case, interpretation intervenes massively inside theoretical disagreements, for instance in those concerning sources of law. Interpretation devises implicit principles, which afterwards could be considered as “law sources”; and it contributes to repealing norms that were earlier considered as sources. Moreover, some ethical principles can be identified as sources only after they have been formulated through interpretation.

Inside the class of legal disagreements I distinguish two large sub-classes: that of theoretical disagreements and that of interpretive disagreements in a strict sense. Each of them includes, in turn, different levels of disagreements (from strongest ones at the top, to weakest ones at the bottom).

The sub-class of theoretical disagreements includes the divergences that take place, at different levels, inside legal theory. They regard the different ways of conceptualizing legal

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experience and cover a spectrum that goes from the more general theoretical differences, connected, on one side, to notions common to different but similar legal systems (today rule of law systems), and, on the other side, to the more specific notions connected to the study, by legal dogmatics, of various sections of a single legal system. If we move from the top to the bottom, the importance and centrality of disagreements tend to decrease. At the very top we have deep theoretical disagreements, those which involve radically different ways of approaching legal experience, different ways of “tailoring” this field: ways which, so to say, posit different entities or processes (rules, psycho-social facts, social practices) as the population of this cultural region. Going downwards we run into other kinds of theoretical disagreements, that become weaker and weaker as we move towards the bottom. On the way we may face divergences that involve divergent ways of developing the same research tradition (for instance, legal positivism) by different conceptions; and, still lower, divergences among different discourses inside the same conceptions (look, for instance, at the differences between Kelsen and Ferrajoli about theory of validity).

The sub-class of interpretive disagreements includes divergences that take place among interpretive reasoning (in a strict sense) of jurists: here, too, we have a quite large field of extension, which contains, at the top, the strongest and most untreatable disagreements (exactly DID) about value laden expressions, and, going downwards, much weaker differences (for instance, about the extension of a substantive, such as the term “vehicle” in the famous example of the municipal regulation about “vehicles in the park”).

2.2 A definition of DID It’s time, now, to give a definition of DID. By this phrase I mean very profound and radical

disagreements that may occur among jurists in legal interpretation, on single cases or on similar cases. These strong divergences mainly regard the interpretation of provisions expressing principles, but sometimes they may also concern provisions expressing legislative rules (look, for instance, at the rule expressed by art. 529 of the italian criminal code, which gives a legislative definition of decency). Anyway, there is no doubt that principles (both at the constitutional level and at the legislative one) are the pivotal forum for the analysis of DID. Disagreement on principles can be single-principled, when it regards alternative interpretations of a single provision; or it can be multi-principled (Besson 2005, 56), when it regards interpretation of more than one principle. It may include explicit principles or implicit principles (that is, brought to light by jurists’ and judges’ constructive interpretation based on pre-existing legal materials). Cases of most severe and divisive disagreements are, however, those concerning constitutional principles that confer fundamental rights. On this point Celano rightly says that principles «si presentano “a grappoli”» (Celano 2013, 88-89), with the consequence of acknowledging, in a case, that one right conferred by one single principle could imply denying the satisfaction of the right conferred by another competing principle.

The necessary condition that allows us to qualify disagreements as DID is the presence, in the linguistic materials to be interpreted, of evaluative expressions or phrases (“life”, human person”, “dignity”, “personal autonomy”, “decency, etc.): that is, expressions and phrases that connote evaluative notions (in the sense that they refer to values), whose interpretation requires jurists to make reference to competing and divergent ethico-political background conceptions.

It must be stressed that these notions do not lose their evaluative character, just through the fact of their penetration, through principles, into legal system. I do not agree, therefore, with the argument properly criticized by Giorgio Pino (2014, 209), who calls it “Kind Midas argument”, borrowing it from a statement of Kelsen’s, according to which «just as everything King Midas touched turned into gold, everything to which the law refers becomes law, i.e., something legally existent» (Kelsen 1945, 61).

2.3 DID and theory of meaning

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In order to get a clearer picture of DID, I will now try to specify some of their most important

features. First of all, what characterizes DID at the level of meaning is a peculiar feature of the

expressions and phrases contained in the legal provisions quoted before. What I mean is that these expressions and phrases lack sense, and so they are indeterminate; and do not lack, at least directly, reference, and so cannot be characterised as vague.

Dworkin moves in the same direction, too, when he says (1996, 77-78) that American Bill of Rights «consists of broad and abstract principles of political morality», and that «the key issue in applying these abstract principles to particular controversies is not of reference but one of interpretation». I would have preferred him, perhaps, to have spoken of “sense”, and not, much more generically, of “interpretation”. But Dworkin, mistakenly, doesn’t take any kind of interest in the theory of meaning. Anyway, he is expressing the same idea.

Some scholars that have studied this matter don’t exhibit the same clarity. For instance, when Moreso (2012, 234) refers to super-evaluative semantics, in his attempt at finding an objectivist solution for interpretive disagreements, he stresses very clearly that he is adopting an approach intended to solve problems of vagueness and not of indeterminacy. For me it is important, on the contrary, to distinguish sharply between indeterminacy (in sense) and vagueness (in reference); and it is more and more important for theory of interpretation, because this distinction helps us sharply to separate semantic operations that are completely different.

In order better to understand my theses on indeterminacy of meaning it is useful to briefly outline some features of my approach to meaning. I opt for an inclusive notion of meaning, containing both sense (intension) and reference (extension).

Sense covers the linguistic dimension of meaning: giving sense to an expression implies answering questions like “what is this word’s meaning?”. In answering this question we exhibit skills in correctly using a dictionary, and, therefore, in giving definitions.

Reference covers the relationship between language and world (in the ordinary and not philosophically demanding meaning of “world”). The answer to a question of reference (“what do you refer to with…?”) requires different kinds of skills, that is, to be able to point out or depict, to some extent, concrete objects, or to draw the boundaries of a given field of extension (if we deal with general terms).

It is not possible here to go into the details of this theory of meaning (see for this my 2012, 163-180). I limit myself to restating that evaluative expressions and phrases that are the subject matter of DID lack sense (indeterminacy) and not reference. In these cases we cannot even pose a question of reference (for instance, the question of “that given behavior is contrary to decency”), if we don’t previously answer the question of sense (“what is decency?”).

It could be also said that evaluative expressions and phrases, contained in legal principles and considered as indeterminate, do not exhibit a commonly shared definition; in other words, they connote what Gallie (1955-56, 167-198) calls essentially contested notions. In cases like these my opinion is that, as far as these expressions connote a single univocal notion, they share a very minimal conceptual core, sometimes made up of paradigmatic cases, positive and/or negative. For instance, one of the instances representing a concrete clear case of behaviour contrary to decency is the behaviour of a man walking down the street completely naked. But the problem is that from a single univocal concept, through interpretation, we may derive different conceptions.

The sharing, inside a linguistic community, of paradigmatic instances doesn’t imply at all that in these cases we face a problem of reference: these instances are elements taken for granted inside that community, which operate as a frame for interpretation, but do not determine further stages of that activity. When Gallie uses the phrase “essential contestability”, he refers to indeterminate (not vague) notions like “freedom”, “democracy”, “justice”, etc., whose meanings change with different worldviews and background ethico-political conceptions; but the interpretation of these notions, as far as it doesn’t reduce itself to a “dialogue of the deaf”, must presuppose some common semantic

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element that fixes the threshold of tolerability of each interpretation. The possible presence of a common hard core of meaning for these essentially contested

notions is very important for DID, because it helps us to fix a minimal level of agreement without which speaking of disagreements makes no sense at all. Dworkin (2011, 161) expresses the same opinion when he says that the sharing of paradigmatic cases, by discordant interpretations, gives a solid and recognisable basis to disagreement.

From this point of view, I do not understand why Manuel Atienza (2012, 65-67) claims that the “concept/conceptions” scheme is completely useless when we deal with essentially contested notions. On the contrary, I stress that it is very useful to fix a semantic common and undisputable point of departure (concepts, paradigmatic instances) for the discussion of essential contested notions.

2.4 The objects of DID Let’s take stock. We have maintained that DID are very radical disagreements in interpretive

reasoning and choices, whose subject matter is legal sentences containing evaluative expressions and phrases. These disagreements are particularly strong and unmanageable in cases in which the subject matter of interpretation is sentences expressing constitutional principles that confer fundamental rights. In the case of DID the resulting disagreements should be considered as genuine, faultless and unsolvable.

Nothing I have said implies, nevertheless, that DID take place only among sentences expressing judicial verdicts (for instance, about bindingness or otherwise of a previous decision, or about constitutionality or otherwise of a statute); it does not even imply that this kind of disagreements consists necessarily of logical contradictions between legal statements.

This is an important point, about which it is worth critically discussing a very stimulating essay, not yet published, by Andrej Kristan and Giulia Pravato, about faultless disagreements in law (2014). I take this opportunity to observe that I greatly appreciate Kristan’s works on legal disagreements because they contribute to the development of contextualist and relativist positions in legal theory.

On this basic point I entirely agree with him. Things are different on the subject of disagreements. Kristan and Pravato hold that genuinely faultless disagreements only take place with reference to definitive judicial sentences about a single case, and therefore to situations of cross-contexts (just because, according to them, among different verdicts about a single case one of the parties wins and the other loses), and particularly in cases of retrospective overruling.

I don’t understand the reason for imposing these rigid constraints on legal disagreements, and, in particular, the reason why only contradictions have to be considered as true faultless disagreements. It seems to me that the authors are more interested to enter the recent debate on this matter in philosophy of language and semantics, than to investigate the fruitfulness of this discussion for getting results that could be able to increase the explanatory resources of theory of legal interpretation.

I have, on the contrary, always maintained that the role played by philosophy of language (and epistemology), in respect of legal theory, is all in all ancillary, just as an important tool to gain more clarity in the analysis of the problems of our subject matter. The final positive judgment for the adoption of semantic and epistemological conceptions depends on their explanatory utility for legal theory. For this reason I have always considered it appropriate to adopt contextually materials taken from different conceptions (and I will do the same in this essay).

This doesn’t seem the approach privileged by Kristan and Pravato for faultless legal disagreements. Leaving apart the general critical observations made above, the authors, in my opinion, confuse formal and substantial aspects of disagreements. As a matter of fact, one thing is the formal solution of a disagreement between two parties in a lawsuit, by a definitive sentence (in respect of which the other discordant sentences on the same case, are labelled, for the same authors,

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as “mistakes”); another thing is the substantial dimension of the disagreement in the interpretation of the provisions dealing with that given matter. This disagreement, as a matter of fact, since it is radical and deep, is going to last not only in doctrinal discussions, but also in future judicial controversies on similar cases. In other words, it is not up to sentences to open or close disagreements.

The last critical observation regards the terms chosen by Kristan and Pravato as the legal predicates that constitute the focus of disagreement. The authors choose deontic terms like binding (vs. not binding); or terms that point out a legal qualification of a given norm, such as constitutional (vs, not constitutional); or, in the end, terms that connote an evaluation, through the criterion of truth or ethical correctness, of a certain interpretive choice or a certain judicial decision.

These are all terms that in ethics would be basically qualified as expressing thin ethical notions, as opposed to other terms (“brave”, “cruel”, “virtuous”) that would be qualified as thick (Williams 2006, 143-145, 99-101, 111-115). The first ones are «very abstract vehicles of commendation or disparagement that can be attached to an almost unlimited range of actions or state of affairs». The second ones «mix the praise or disparagement they offer with more concrete factual descriptions» (Dworkin 2011, 181), and therefore could be applied to certain actions and not to others.

I am of the opinion that for a research that takes DID as its subject matter it is not fruitful to deal with thin ethical notions; this kind of approach wouldn’t be suitable as a tool for going deeply inside the real substance of interpretive disagreements, which regards thick ethical notions. It is the latter domain that deserves to be scrutinized.

2.5 DID as real, faultless and unsolvable disagreements DID have three basic features: they are genuine, faultless, unsolvable disagreements. I will

now analyse these features in more detail. Firstly, DID are genuine disagreements. In saying this I want to criticize the thesis according

to which dissenting interpreters, who face a value laden term or phrase (such as “life”, “dignity”, “human person” “self-autonomy”, etc.), talk past each other, because they are not making any statement, but are giving expression to their feelings or preferences. This will be, as we shall see in a moment, the answer of expressivism. In my opinion, on the contrary, dissenting interpreters in these cases speak, to some extent, of the “same thing”, because they share a common conceptual ground and agree on some paradigmatic instances. It is trivial to observe, on a more general level, that no disagreement is possible without a prior agreement, without sharing a high number of background assumptions6.

In the case of DID, therefore, agreement is the point of departure of the discussion, whereas disagreement is the point of arrival, because our interpretive choices, which start from a certain common ground, tend irremediably to diversify. Moreso, too, uses the phrase “common ground” (2012, 233-239) in his important works on legal disagreements. In his view, nevertheless, it is not completely clear if “common ground” refers to the discussion’s starting assumptions, or to the – in his opinion desirable – point of arrival7.

The idea that transpires through Moreso’s statements is that, when disagreements are genuine, then it should be possible to have a debate, and so sharing the common goal of eliminating mistakes and individuating a common basis that allows the removal of disagreement. In other words, it seems to me that, according to this position, the more disagreements are genuine, the more it is possible, in

                                                                                                               6) On the background assumptions as presuppositions of communication, see Searle (1980, 221-232). 7) Moreso builds on an essay by Stalnaker (2002, 701-721) on the same matter. But it seems to me that for Stalnaker, too, common ground is the point of departure, and not of arrival, of a discussion among dissenting speakers.

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the end, to find an agreement. My opinion, on the contrary, is that common ground is always the point of departure of all

kinds of legal disagreement, but it is not always the landing place, and certainly it isn’t in cases of DID.

Secondly, DID are faultless disagreements. By the way, when I use the word “faultless”, I don’t want at all to join the recent discussion in philosophy of language on faultless disagreements8, adopting one or another of the competing positions adopted in this field. I use the term in a very specific sense, in order to characterize a peculiar feature of a certain kind of interpretive disagreements (DID) in law.

Deep and radical interpretive disagreements do not presuppose mistakes or misunderstandings by divergent interpretations, as far as they overstep the threshold represented by cultural and semantic tolerability (and so they become legitimate interpretations). All this means that legitimate interpretations share concepts and paradigms “deemed certain” by the competent members of that given legal culture, and use argumentative resources on which there is agreement in the same legal culture, at that given time. In the last analysis, the competent members of that legal community will represent, in my opinion, “the court of last resort”. I will say more on this point later.

Thirdly, DID are by their nature unsolvable. By this I mean that in these cases there is no way of finding a single right answer for the interpretive questions that are on the table.

2.6 The interpreter’s and legal philosopher’s points of view Another important feature of DID deserves to be mentioned. I am persuaded that interpretive

statements through which DID reveal themselves possess a propositional content9 (and this makes real disagreement among different contents possible), a content that is presented by discordant interpreters, in public discourses (in a trial, for instance), as correct. By this I mean that all the divergent interpretive choices advance claims to correctness, in a sense that is close to Alexy’s (1998, 171) formulation, with the difference that his formulation is placed in an objectivist theoretical context, and mine, on the contrary, inside a relativist one. Jurists’ claims, namely, present their single interpretive choices as supported by the best arguments, and sometimes as if they were the only one right answer for that given case. But it is important to note that this way of presentation falls exclusively within the competence of the interpreter, it is done from the interpreter’s point of view, and not from the legal philosopher’s: the latter point of view could be very different, at least if the philosopher should adopt a relativistic perspective. In this case, in the course of his reconstruction, he would disclose the groundlessness of such claims, at least if they are conceived as absolutely valid; and at the same time he will show, on the contrary, that the claim conceived as uniquely correct is actually bound to one of the available reference schemes, containing theoretical and ethico-political elements.

In order to understand this point more clearly, we can refer to Robert Brandom’s theses on the role of assertions in social communication (Brandom 1994, 157 ff,, 202 ff.). According to Brandom, to express an assertion means to make a move in the social game of communication, a game whose rules are backed by social sanctions. One of these rules is “to be sincere”, in the sense that one ought to assert a proposition only if one believes that proposition to be true.

In a similar vein, we could say that one of the rules in the social game of judicial interpretation and adjudication (and of judges’ professional deontology, too) is to strive to give right answers, really true answers to legal cases. These rules, in other words, are part of judges’ ethical and deontological equipment.

Things are different, as I have stressed above, for legal philosophers. In order to better

                                                                                                               8) On this discussion, cf. at least Kölbel (2002, 98-106), MacFarlane (2014, 133-136), O’Grady (2010, 203-226), and Wright (2006, 58 ff.) 9) On the notion of propositional contentfulness see Brandom (1994, 79-83).

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understand this change of perspective, we may refer to some passages of a very interesting book by Aldo Gargani (1985, XI ff., 25-35). In a quite similar way to what I did above for judges and legal philosophers, he establishes a very sharp distinction between the points of view of the scientist and of the philosopher of science. He says that when the single scientist approaches knowledge, he treats his statements as if they referred to a “reality in itself”, as if they could disclose the truth as correspondence to facts; these are beliefs that afterwards historians and philosophers of science, at the level of meta-reflection, will recognize as illusions. On the contrary, philosophers will prefer to talk about “world versions”, “truth as internal to a conceptual scheme”, and so on. A similar situation, as I have tried to show above, occurs in the change of perspective between judges and legal philosophers (at least if they are relativists). Judges are looking for single right answers; legal philosophers reconstruct them as contextually bounded and value laden interpretive choices.

By the way, I am persuaded that to acknowledge the presence of a big gap between the interpreter’s and the legal philosopher’s points of view could represent a useful conceptual tool in order to give a relativistic interpretation of Dworkin’s right answer thesis10, an alternative interpretation to the prevailing objectivist view. But, unfortunately, there is not enough space, in this paper, to develop this point.

3. Two paradigmatic instances of DID 3.1 The “Englaro case” In this section I will present two paradigmatic instances of DID, relating to two legal cases

that have effectively taken place in the last twenty years in the italian judicial system. Until now with my argument I have tried to show that the presence of DID is abstractly possible, even likely, in our rule of law systems; with reference to concrete cases, I want to take a step forward, and so to point out that cases of this kind have really happened.

These two cases express vividly profound interpretive disagreements, that affect the heart of the legal system, and in particular the fundamental ethico-political values warranted by constitutional principles. Both come from bioethics, and concern the matter of “end of life”, a domain in which the lack, in the italian legal system, of specific legislative rules, leaves plenty of space for intervention of constitutional principles, and, consequently, for divergences about their interpretation.

The first example is the well known – within our domestic borders – “Englaro case”. It was a very long court case, that went through nine decisions (between 1999 and 2008), referring to three different legal proceedings. But I will very shortly deal only with the arguments adopted, in the last trial, by the “Corte di Appello di Milano” and the “Cassazione”.

Putting it very briefly, and apart from technicalities, the facts of the case can be described in this way: a girl, Eluana Englaro, is the victim of a tremendous car crash, that leaves her in a profound and irreversible coma. She is kept artificially alive for years by machines. Finally her father resorts to Lecco’s Court, asking for the interruption of all medical treatments and saying that his daughter would never have accepted a situation like this, precisely because of the conception she had of the dignity of her life. The Court declares the father’s legal claim to be inadmissible, and he appeals to the Milan “Corte di Appello”.

It is worth repeating that I’m not interested in the details of the case and in the specific legal problems involved. I’m interested, instead, in underlining the deep interpretive disagreement that arose between the arguments contained in the decision of the Milan “Corte di Appello” (16-12-2006) and those contained in the decision of the Cassazione (Cass., Sez, I Civile, sentenza n. 21748, 16-10-2007). The first decision is contrary to the father’s judicial request, the second is in favour of

                                                                                                               10) For a relativistic interpretation of Dworkin’s right answer thesis, see Moore (1991-1992, 2424-2533).

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it: we could say, in our lexicon, that this DID regards the different normative ideas about the notion of the human person and its main features (more exactly, about the hierarchical order to be chosen among these features) that lie behind these arguments. It is a disagreement that displays itself in the divergent interpretive readings that the Courts jointly give of constitutional provisions referred to under articles 2, 13, 32 of our Constitution. According to the Corte di Appello, in this case the “right to life” (life considered as a primary good) must be in any case warranted (according to provision 2 of the Constitution ), independently of the quality and dignity of life, as it would be perceived from the point of view of the person involved (provisions 13 and 32). On the contrary, according to the Cassazione, the principle of self-autonomy (including the right of the person to decide what to do about his or her life) could prevail, in some extreme cases, over the right to life.

We face here a deep ethico-legal interpretive disagreement: a disagreement which necessarily involves, for the interpreters, linking up to ethico-political conceptions that lie in the background of the system, those that regard the normative ideas of human person and the kind of hierarchy which should exist among its features.

This is a genuine and deep conflict between two basic values incorporated in our constitutional principles, a conflict which requires interpreting the value-laden expressions included in them (but, essentially, interpretation of the normative idea of the human person, which could involve different types of selection of his most important features), and balancing between different rights: right to life and right to self-autonomy.

This conflict, as all cases of DID, is genuine, faultless and unsolvable (there isn’t a single right answer). In this case, like many other similar cases, we have reached the top (or, better, the protected hard core) of ethico-political values that are placed at the basis of a legal system: values, furthermore, that cannot be further justified resorting to additional and more fundamental principles.

It is important to add that this is not a fake conflict between different ways of envisaging law as it should be, according to the subjective ethical views of the dissenting judges. It is rather a conflict, as Dworkin would say, about the best way of interpreting “law as it is” (of course, in a evaluative and constructive way). There is a difference, Dworkin rightly says, making an interesting comparison between interpreting law and interpreting a work of art, «between saying how good a particular work of art can be made to be and saying how good that is» (Dworkin 1985, 153).

3.2 The “Welby case” The second paradigmatic instance of DID, the “Welby case”, also regards the matter of “end

of life”, even if the features of both cases are different. Anyway, in this second case too, the subject of dispute is basically very similar, because here the same fundamental ethical values come into play in the arguments advanced by two of the judges that participated in the case’s unfolding.

Here, too, the court case is very complex and cannot be reconstructed in details. What interests us is the criminal profile of the case, and in particular the interpretive argument adopted by two different judges for justifying the lawfulness or not of the behaviour of the anaesthetist involved in the case. The doctor had helped Mr. Welby (a terminal patient affected by muscular dystrophy) to die, suspending the medical treatment that kept him alive.

The last sentence, that pronounced by “giudice dell’udienza preliminare” (GUP), avoided the defendant being prosecuted. Well, the motivation of this decision includes arguments that are in deep disagreement with those advanced by the judge in an earlier stage of the prosecution, “ il giudice delle indagini preliminari” (GIP). These arguments refer to the interpretation of articles 2, 13, and 32 of the Constitution, and involve, as in the previous case, meanings to be attributed to evaluative expressions and phrases like “human person”, “life”, “self-autonomy”, etc., and require, too, a balance among rights warranted by principles including these expressions.

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The GIP stressed, among other things, that life, in its sacredness11, inviolability, and inalienability, represents the boundary for all other rights (like that warranted by art. 32 of the Constitution) that protect human dignity. According to the GUP, on the contrary, the combined interpretation of articles 2 (on the inviolable rights of human person) and 13 (that grants the right to self-autonomy as a specification of the right to freedom) establishes that the right to refuse medical treatments, too, is part of the inviolable rights of the person, those which protect the supreme values warranted by the legal system. For this reason the latter cannot have a prejudicially lower position in respect of the “right to life”. In the case of a conflict between the two, therefore, it is necessary to balance, and, according to the GUP, in cases in which the right to self-determination concerns the refusal of medical treatments, the balance leads to the prevalence of the latter over the right to life, because the former, on the basis of article 32, can only be limited only by a legislative provision (in this case missing).

4. DID between ethical objectivism and ethical relativism 4.1 The “two baskets theory” We have to face, now, two of the three questions that I have raised at the beginning, that is: i)

the question of the metaethical justification of DID (the “why question”); ii) the question of their theoretical explanation (the “how question”).

First of all, nevertheless, I would like to start with an important preliminary clarification. If we should start from the mainstream reconstruction of the various available metaethical positions, then perhaps we would establish two important distinctions (in the manner of Chiassoni 2009, 241-257, for instance), which certainly have a very general field of extension, but which I will now try to specify for the DID’ domain.

The first distinction very sharply separates cognitivist metaethics and non-cognitivist metaethics. According to the former, in their interpretive activity jurists are effectively able to find (at least in most cases) right answers, single correct solutions for DID, solutions that determine law as it is for a given single case; and, according to the latter, it is not up to jurists to discover single right solutions, precisely because in these cases there is no pre-existing law to be found, but, if anything, a new law to be created, whose content will depend on discretional choices of interpreters, which quite often will be driven by their evaluative attitudes and preferences.

The second distinction establishes a dichotomy between a descriptive metaethics and a prescriptive metaethics. The former should take into account how in fact jurists behave when they face interpretive disagreements; the latter should prescribe how they must behave faced with these disagreements. With the help of this second distinction it could be also possible, according to Chiassoni (2009, 242-244), to make no sense of the heated discussion that normally takes place on this topic between objectivists and relativists.

I strongly disagree with both distinctions, because I find that they are affected by the presence of inadequate epistemological presuppositions, which are an expression of an outdated neo-empiricist perspective12. I have frequently criticized this dichotomic approach in the last few decades, with particular reference to the “Genoa school theses” (Villa 1990, 617-665). Here I restrict myself to stressing a quite general point, that is placed in the background of both distinctions, and criticism of which is important for better understanding my alternative epistemological perspective.

                                                                                                               11) An interesting question, which I cannot concern myself with in the space of this essay, is if a judge, in his interpretive activity, can legitimatelly use arguments drawn from the sacredness’ dimension. 12) For a detailed critical analysis of this perspective see my (1984, chp. IV).

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These two dichotomies, together with many others (for instance, “discovery vs. creation”, “fact judgments vs. value judgments”, “acts of pure knowledge vs. acts of pure will”), represent the outcome of a totally inadequate epistemology now discredited (even for natural sciences). This perspective builds, to speak metaphorically, two sorts of “baskets” inside which to put all the different kinds of discourse, in every linguistic domain we are supposed to be placed in.

There is a “much smaller basket” that should contain all cognitive discourses; the latter are considered as descriptive discourses that this conception is able to define, positively, quite clearly and precisely (albeit in a totally inadequate and reductive way, as far as they are conceived as discourses aiming at getting knowledge). The ultimate goal of these discourses, even if after many complex logical reduction operations (so that they could by reduced to observative statements) should be that of taking into account – even by approximation –“reality as it is” (any kind of reality it would be possible to speak of). In the words of Crispin Wright, according to this conception, if we respect warrant-conferring standards of so-called descriptive discourses, «we do, as it were, put ourselves into “representational mode” – do put ourselves in position to produce mirrors, in thought of language, of the state of affairs with which the discourse distinctively deals» (Wright 1992, 92).

The second “much bigger basket” should contain all the - not at all homogeneous - discourses that are non-cognitive in character, and that are not defined with the same clarity, in the sense that they are almost always defined negatively (they are discourses that are non-descriptive in character). As a matter of fact, there are very big differences among the discourses that are put together in this large second basket. It does not seem, for instance, that a pure taste judgment like “I like chocolate ice cream” could be considered of the same kind as a very challenging and demanding value judgment like “slavery is unfair”. But, anyway, the risk that this conception takes is that of homogenizing these two kinds of discourse, and so of ending up assimilating evaluative judgments to taste judgments13.

In the space of this essay, I can only put forward again two basic objections to this “two baskets theory”: the first against the smaller basket, the second against the bigger one.

For what regards the smaller basket, the reader is referred, for a much more detailed discussion, to my (1999). Here I can only note that the descriptive language view proposed by this conception implies that there is a set of statements (descriptive ones) whose aim is to take into account a reality considered as totally independent from the adopted scheme of description, and whose correctness (or truth) can be established independently of every future investigation of ours14. The idea that represents the background of this statement is, following John McDowell, that «how things are is how things are in themselves – that is independently of how they strike the occupants of this or that particular point of view» (McDowell 1981, 141). According to McDowell (and I agree with him), this position is unintellegible because «we cannot occupy the independent perspective that platonism envisages…» (ibid., 150).

For what regards the bigger basket, I can only repeat what I have already said about the substantial assimilation between taste judgments and value judgments that could be provoked by the heterogeneous presence of totally different kinds of statements inside the basket. As I will show in the next paragraph, this homogenization produces counter-intuitive outcomes, and certainly it doesn’t take into account the much greater complexity and disputability of the second ones.

4.2 The expressivist metaethics We may come back now to the matter of the metaethical justification of DID. I will examine

below three possible answers to this question, perhaps the most widespread ones. Among these I will select the answer that will be able to keep untouched the three basic features (genuiness,

                                                                                                               13) For a position that in legal philosophy shares this kind of dichotomy, see Leiter (2007, 238 ff.). 14) It is the idea that Crispin Wright labels as “investigation independence thesis” and that criticizes adopting the wittgensteinian rule following argument (Wright 1987, 148-149).

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faultnessness, unsolvability) that I have attached to DID. This is a necessary condition that is part of the positive heuristics of the hard core of my research programme, a condition around which I have created a protective belt against attempts at falsification15.

The three metaethical conceptions that I will analyse will be, in the following order: expressivism, objectivism and relativism.

With regard to expressivism, I will try to show that this conception fails completely to take into account what I have already considered, in sub-section 2.5, an important feature of DID: the fact that the dissenting judgments possess a propositional content, in the sense that they advance claims to correctness that need to be disputed in public discourse. Well, the way in which expressivists conceive value judgments makes it impossible to attach this feature to DID, and so dismisses disagreement as meaningless.

Let us proceed in order. Expressivism represents the attempt to apply to value judgments in general, and to ethical judgments in particular, a kind of analysis tailored for taste judgments.

From this point of view, ethical judgments and ethico-political judgments that are expressed in the legal domain, must be conceived, in the last analysis, as a rationalisation of attitudes that find their roots in feelings of pleasure or rejection– or in any other kind of emotions – about a certain “state of things”. In the ethical domain expressivism finds its best expression in the emotivist conception of ethics (Ayer 1952, 102-119).

I have already criticized the epistemological presuppositions of the assimilation of value judgments to taste judgments that is implied in the expressivist conception. This kind of assimilation produces a shift in the meaning of value judgments in general, and of ethical judgments in particular, with the result that to the latter there are attached the same features as taste judgments.

My opinion, on the contrary, is that ethical judgments are completely different from taste judgments, as moreover we may infer from our most consolidated intuitions.

If we refer specifically, now, to the legal domain and so to the ethical judgments implied in interpretive arguments, we may say that today’s most important theories of legal argumentation (for instance, Alexy 1998, Atienza 2012) converge in maintaining that expressing an ethico-legal judgment requires one to give reasons in support of it, to engender discussions for and against; and the fact that disputes and debates arise doesn’t mean at all, as Kölbel believes (2002, 28-29), that only one of the competitors is right and all the others wrong, perhaps because they make mistakes. In other words, it is a common opinion that discussion and disagreement are a physiological matter in the ethical judgment’ domain, even in the field of legal interpretation; this certainly isn’t the case in taste judgments. Furthermore, ethical judgments, contrary to taste judgments, tend to mutually strengthen and support one another, because they are normally structured in systems, or, more exactly, in networks that include peripheral elements and central elements, more protected against attempts at falsification.

Moreover, the assimilation of ethical judgments to taste judgments has another heavy counter-indication, another dangerous shift in the meaning of ethical judgments: a shift in the direction of ethical subjectivism, of a conception that conceives them as individual preferences. This is a particularly unsatisfying outcome for value judgments, and more so for the ethico-legal judgments implied in DID. As I said before, dissenting legal interpreters advance claims to correctness: claims whose validity cannot be corroborated by supposed moral facts or argumentative procedures of objective character; but certainly not even by their agreement with subjective preferences. What must be done, on the contrary, is to verify the positive connection of these judgments with perspectives shared by a certain section of a given reference legal community.

Anyway, I will dwell on this point later. Here, at the end of this short critical analysis, I want to stress again that expressivism does not even represent a minimally satisfactory account of DID. In this perspective, actually, DID disappear completely from the framework, because they are all in all considered as the result of a linguistic misunderstanding: expressivism says that in these cases,

                                                                                                               15) For this view of scientific research programs see Lakatos (1978, 48-51).

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on closer scrutiny, there is no disagreement at all. The dissenting interpreters talk past each other. Everything is reduced to a conflict among radically different subjective preferences, without any of them asserting something that can be disputed. By the way, this thesis distorts completely what we want to say when we express ethico-legal judgments (for this opinion, cf. Wright 2006, 39).

4.3 The objectivist metaethics Pierluigi Chiassoni (2009, 63-73) has recently given a very detailed taxonomy of metaethical

objectivist positions. It certainly pinpoints many important features of this notion, in its various reconstructions, and clearly separates the ontological aspects from the epistemological ones. Its main flaw, nevertheless, is that it mixes together positions that are genuinely objectivist, in the strong sense, and positions that are not objectivist at all, or positions that are objectivist only in a very marginal sense, and that, for this reason, should be characterised in a different way.

We could not say, anyway, that this taxonomy is not correct; but, as a result of a stipulation, we may dispute its fruitfulness. Well, from this point of view I do not think it is appropriate to put together, in the same category, genuinely objectivist positions and positions that are substantially very different, like those expressing, according to Chiassoni, a deontological objectivism or a methodological objectivism.

In my opinion it is much more suitable, instead, to start from a conceptual definition16 of objectivism, that attempts to fix the minimal conceptual hard core of this notion, in its genuine and strong sense, establishing which are the necessary conditions of objectivist conceptions, and leaving aside those that are on the borderline. By working in this way it would be possible to recognize much more clearly, among other things, the conceptual opposition existing between objectivism and relativism, and, by negation, to trace out a definition of relativism.

I will give now a general definition of objectivism that will exhibit the necessary conditions that must be attributed to beliefs and statements in order for them to be qualified as objectivist. It will be very easy, immediately afterwards, to apply the predicate “ethical” to those beliefs and statements and to obtain a definition of objectivism for the metaethical domain. I propose, therefore, to consider as objectivist the conception according to which some of the statements and beliefs that we have (the supposed fundamental and central ones) are qualified as true, or correct or valid universally, that is, independently from a reference to a context (it could be a paradigm, a conceptual scheme, a culture, an ethical perspective, etc.). It is obvious that, in order to obtain metaethical objectivism, we must only add the predicate “ethical” to those beliefs and statements17.

In other words, according to this definition, all beliefs and statements are objective that, regardless of how they have been created, of how they could be verified, or which context they are part of, gain total independence of contextually placed points of view (Kölbel 2002, 21). These beliefs and statements require, so to say, assent by all; Crispin Wight would say that they are commanded of us, that they request cognitive command (Wright 1992, 92, 146). Other beliefs and statements that do not meet this criterion are instead considered as the outcome of some sort of cognitive failure (mistakes, misunderstandings, and so on).

Objectivist conceptions can of course be subjected to different kinds of criticism. I do not repeat here the criticism of an epistemological character that I have already spoken of in relation to the “two baskets theory”. In any case these conceptions maintain that ethical judgments could be qualified as correct (or true) as far as they correspond to some sort of supposed “moral facts or entities” (in the strong versions); or, in more moderate versions, as far as they can be identified through argumentative criteria equipped with universal validity, regardless of their acceptance or adoption in specific contexts.

                                                                                                               16) For the meaning of “conceptual definition” I refer to my (2004, 18-20). 17) For a good example of a very strong version of metaethical objectivism, see Moore (1991-1992, 2425-2533).

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I think that these theses are substantially implausible, and, furthermore, that they clash with the widespread phenomenon of ethical pluralism. A fortiori they should be considered as inadequate for explaining DID. It seems to me in contrast with legal interpretive practices of rule of law systems to maintain that, inside the set of interpretations that pass the threshold of cultural and semantic tolerability, only one is right and the others mistaken. It would amount to charging the interpretive work of jurists with a wide number of serious mistakes and misunderstandings.

Actually the fact is, and I agree with Chiassoni (2012, 245) on this point, that for the objectivist unsolvable disagreements are spurious disagreements; for him faultless disagreements are only those that can be solved through a single right answer. In interpretive practices what really counts is finding agreements.

To sum up, in my opinion objectivism is not at all able to explain DID. The three necessary features of these disagreements (the fact that they are genuine, faultless and unsolvable) disappear completely from the objectivist framework.

4.4 The relativist metaethics The third metaethical conception, relativism, is the only one of the three that is able to keep

firm together the three features of DID just mentioned. This is a strong reason for choosing it as the reference conceptual scheme for analysis of DID.

The definition of relativism is a quite complex and much debated matter, also because there are today many – local and global – versions of this conception. Anyway I think it is useful to highlight the opposition with objectivism and to build this definition contrasting it with objectivism’s definition. From this point of view, we may say (Villa 2010, 173) that are all those conceptions are relativistic according to which “the correctness, or the truth, of all (strong versions) – or at least of a significant and large part of (weak versions) – the beliefs and statements – of a cultural, semantic, ethical, epistemic, aesthetic, etc., character – depends on a context (which can be a paradigm, a culture, a language, a ethical perspective, and so on) chosen each time as a reference point; and this means that there is no position, point of view or parameter “outside any context”, making it possible to effect a completely neutral evaluation of these elements, and therefore to make any affirmation in absolute terms. As Wright (2008, 158) aptly says, according to relativism «there is no such thing as simply being X». In a relativistic view the presence of the context, together with the parameters that it includes, has always to be added to the beliefs and statements produced in the various domains, and limits the field of extension of their claims to correctness.

Again, as for objectivism, it is sufficient to attach the predicate “ethical” to those beliefs and statements to obtain a minimal metaethical version of relativism.

As I will show in the last section, dedicated to legal interpretation, we may strengthen this minimal version by adding that, in the legal domain, and particularly in DID, the relevant contexts should be called contexts of interpretation, and that what changes in these various contexts is the content of the evaluative expressions and phrases of the provisions whose interpretation is under dispute. This version of relativism is quite close to what Cappelen18 calls, exactly, content relativism. The parameter inside these contexts that is crucial for the change in the meaning contents is that connected with an ethico-political perspective19 chosen as the reference point.

In the paradigmatic instances reconstructed in section 3 the subject of disagreement is constituted by evaluative expressions and phrases like “life”, “human person”, “dignity”, “self-autonomy”, and so on. In those examples it should be clear that the different ethico-political

                                                                                                               18) Cappelen (2008a, 265-2686 and 2008b, 23-46). I thank Samuele Chilovi very much for his suggestions about Cappelen’s theses. 19) It is Kölbel (2002, 91) who speaks of sharing of different perspectives, in order to explain his thesis about the relativity of truth. Here I use the notion to characterize the crucial element in the contexts of interpretation.

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perspectives are represented by a liberal-individualistic position, on one side, and by a communitarian-religious position, on the other side. The dissent that revolves around DID, therefore, does not directly regard single interpretive choices or judicial verdicts: primary disagreement goes through background ethico-political perspectives.

As I said before, relativism is the only one of the three positions that is able to explain all the three necessary conditions, mentioned above, for qualifying disagreements as DID. Let’s see why.

Firstly, according to relativism, DID are genuine disagreements because they are the outcome of discordant assignments of meaning to the same evaluative expressions and phrases included in the dispositions whose overall interpretation is disputed. In other words, the interpretations of the contested notions connoted by these words share a common semantic basis and some paradigmatic instances. That is, dissenting interpreters do not talk past each other, even if they attach different meanings to these notions, because they are placed in different contexts of interpretations; and these contexts relativize to their specific parameters the claims to correctness implied in the various interpretations.

From this point of view, we could say that relativism is able to solve the problem of puzzling data pattern that affects DID and which Cappelen (2008a, 265) speaks of, referring to relativism in general: that is, the problem according to which «there’s evidence that the terms in question exhibit some kind of content stability across contexts….(and) on the other hand there’s evidence that their contents vary from one context of use to another».

Secondly, according to relativism, discordant interpretations are faultless, in the sense that they aren’t the outcome of some kind of mistakes or misunderstanding. On the contrary, they, insofar as they overcome the threshold made of cultural and semantic tolerability, represent the result of the intervention of different ethical perspectives.

Thirdly, DID are unsolvable, because, if we start from a relativistic framework, we have to admit that they do not allow single right answers as solutions. The dissent on them is placed at the level of fundamental values of the system20 (the central elements of the ethical network). Think, for instance, of the conflict between the value of human life and that of self-autonomy, which I discussed in section 3.

4.5 Relativism as a “middle way” between objectivism and subjectivism I will try to show, in this sub-section, that a relativistic metaethics can represent an

appropriate “middle way” between the opposite extremes of objectivism and subjectivism. I am persuaded, in other words, that when, in cases of DID, the claims to correctness of jurists’ interpretations reach the ultimate values of the system21, the path towards objectivism is blocked, and so we cannot rely on some sort of ethical facts or on universally applicable argumentative criteria; but likewise we cannot found these claims on subjective preferences. Neither of these conceptions takes DID seriously. The middle path that I suggest should be followed is constituted by what we can call the social roots of ethical judgments variously expressed by the dissenting interpreters.

What I mean, for the present moment in a very tentative way, is that a plausible justification of these claims should rest, in the last analysis, on their attested convergence with a commonly shared ethico-political perspective; that is, a convergence with a set of long-established ethico-political standards that are adopted by a specific group or section of a given legal community, a group that is giving voice to a determined interpretation of that legal culture.

                                                                                                               20) On the ultimate values of an ethical system (the so-called first principles) see Scarpelli (1976, 24). Cf. also Harman (2000, 21). 21) In these cases Wittgenstein (1958, § 217) would say that «if I have exhausted the justifications I have reached bedrock and my spade is turned».

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From this point of view I think that if we want to examine fruitfully, from a relativistic perspective, the problem of justification of these claims to correctness, then it could be worthwhile to take inspiration from the famous wittgensteinian theses on rule following (1958, § 202 ff.), in the challenging interpretations given by McDowell (1981, 141-162) and Wright (1981, 99-117).

In particular, Wright maintains that from these wittgensteinian passages it is possible to derive the epistemological thesis according to which the evaluation of the correctness of the application of a rule (a semantic rule or a calculation rule, for instance) is based neither on some sort of ratification-independent fact (objectivism in a strong sense), nor on some element of rule follower’s private knowledge (subjectivism in a strong sense); it is based, on the contrary, on the positive verdicts of a reference community, attesting the agreement of the rule follower’s single move with the community’s judgments.

It must be remembered that, regardless of the specific theory to be chosen for handling justifications of DID, the solution here suggested remains firmly relativistic. No single objective answer could ever be given when DID issues are at stake.

It can be added that this kind of metaethical relativistic perspective could generate interesting implications for constitutional topics like, for instance, the idea of italian Constitution that it would be best to adopt, and the way in which the interpretation of its constitutional provisions should be understood, including evaluative expressions and phrases. According to Giorgio Pino’s very good essay (2015), today the most widely shared image of the Constitution is that which sees it, basically, as a set of background fundamental values to be brought to light by interpreters. So far, so good: but then problems arise, however, because most scholars of constitutional law22 hold that these values express a coherent and harmonious order, a pre-determined (in respect of interpretation) hierarchy of values. In consequence of this, it is up to interpreters to reconstruct the appropriate equilibrium among these values, even if this entails balancing between them, in cases they were in conflict. But, according to this view, in these situations the interpreter’s task should be anyway that of not compromising the essential content of the rights flowing from these constitutional principles.

I have no space, unfortunately, to develop this point: I am persuaded, nevertheless, that the presence of DID constitutes an important counter-example against this coherent and harmonious view of our constitutional values. When interpretation of fundamental constitutional values comes into play, the interpretation of their meanings (or, more exactly, of the evaluative expression and phrases that connote their notions) must necessarily engage with background ethico-political conceptions23. At this level nothing objective can be found: these conceptions are plural and contain notions essentially contested, which are in need of interpretation, too; evaluative – and disputable – choices will be unavoidable for interpreters. In other words, from a relativistic point of view our Constitution couldn’t anyway represent the objective foundation, the firm and true anchorage of jurists’ interpretive and applicative practices.

5. DID and theory of legal interpretation 5.1 The pragmatically oriented theory of legal interpretation The last section regards the problem of how legal interpretation should equip itself to deal

with – and to give solutions to – DID. With regard to this matter we surely need a theory of legal interpretation that moves in tune with the relativist premises adopted within metaethics, and that gives enough space to the role played by the context in interpretation.

                                                                                                               22) For this objective view of constitutional principles, see Luciani (1991, 170 ff.), Baldassarre (1991, 639-658), and Ruggeri (1998, 1-33). I thank Giorgio Pino very much for his precious suggestions about this idea of Constitution and its implications for constitutional interpretation. 23) This is also the opinion of our scholar of criminal law, Giovanni Fiandaca, in his very stimulating essay (2011, 383-1414).

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In recent times I have attempted (Villa 2012) to sketch a theory of this kind, which I have called a pragmatically oriented theory of legal interpretation. Nevertheless, the investigation dedicated to DID made me realize that this theory requires some important changes. These changes, however, can be introduced without giving up the original contextualist machinery. It is especially the notion of “background context” that needs to be reconsidered.

My exposition will be carried out in two stages: i) firstly, I will sketch some outlines of pragmatically oriented theory in its first version; ii) secondly, I will mention some of the changes to the theory that are necessary for adequately taking DID into account.

The first thing to be done is to clarify the sense in which I use the locution “pragmatically oriented”. This locution is meant to highlight an important aspect of this theory, and precisely that of the need, always and in all cases, for interpretative activity to be produced in a context; in the absence of this, one cannot speak of construction of a complete meaning of the disposition to be interpreted. In short, it is pragmatics, as a discipline that studies the effects and contexts of communication, that gives a necessary marching direction to semantics, as a discipline that studies the conventional meanings of words. The theoretical sources of this semantic theory lie in the recent approach in philosophy of language that may be called contextualism, in the specific version that takes the form of an indexical non standard version, developed, among others, by Travis (1998, 87-107), Recanati (2004) and Carston (1982)24.

In a pragmatically oriented theory of meaning, the role of the context is double: there is a context that we can call “distal” or “background”, which is represented by that set of basic pieces of information on natural facts (for instance, on certain laws of nature) and cultural ones (for instance, on the presence of certain institutions and certain social habits), of shared practices on how to do “certain things correctly”, and so forth, which are commonly shared by the competent members – even minimally – of a certain linguistic community, and which help to fix some stable meanings in the affirmations that we make25.

In addition to the distal context, there is a second sense of context, which some philosophers of language call “proximal context”. It concerns the “precise, local and identifiable aspects” that the receiver of the communicative message must bring into play in order to attribute a complete meaning to sentences

The gist of these considerations can be summed up as follows: there are never expressions and affirmations that are completely decontextualized; without reference contexts and speech acts the words that we pronounce and write remain completely inert.

In the example of “vehicles in the park”, it is only through concrete, real or imagined, situations that the expression “vehicle” is given a complete meaning within the speech act producing the utterance expressing that given sentence in a contextually determined way, also settling any doubts on the identification of single objects as being part or not of the “class of vehicles” (“is the pedal car a vehicle or not?”).

To conclude these considerations, it is worth stressing that, from the point of view of this theory, the complete meaning of a sentence can only be produced through the combined intervention of the distal context and the proximal context. Before this we only have, as the starting basis, semantic frames or schemata of meaning, and that is to say the conventional meanings of the single expressions contained in the sentence, which constitute the framework of what we want to say, a space of signification that also represents a major constraint for the process of specification and concretization that will lead to the complete meaning. But, as I have said, the complete meaning is only given through the single speech act that produces an utterance of the sentence by

                                                                                                               24) For a good analysis of the contextualist approach in philosophy of language, see Bianchi (2001). 25)For a well known analysis of background context, see these two essays of John Searle (1979, 117–131 and 1980, 221–232).

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contextualizing it.

5.2 Theory of interpretation between contextualism and relativism

This, putting it very schematically, is the original version of the semantic basis of my theory of legal interpretation. But very early, also as a result of a quite sharp criticism26 that came in the meantime, I noticed that something didn’t work properly in my theory, particularly on the side of the background context. In the ensuing period I produced two attempts to refine this notion (Villa 2012, 151-178 and 2013, 303-363). At the present time I am much more persuaded of what doesn’t work in my theory, than of the ways to be pursued to improve it.

The main criticism of the notion of background context as it is presented in my book is twofold.

Firstly, that notion was conceived in too static a way. The thesis that I held was that context only came into play when, so to say, revolutions took place: that is, only when some elements of the context underwent a radical change, and so the conventional initial meaning of the disposition to be interpreted was, to some extent, profoundly modified. In other “normal” situations its function was only that of keeping firm and stable the conventional meaning of legal sentences. In other words, in my view, either the background context remained stable, but all in all motionless, or it changed quite radically27.

Now I believe that the background context is always at work, and is constantly operative in interpretation, and many times directly guides this activity; and more so in the case of DID, where it (or, more exactly, different sections of it) directs the interpretive competing choices towards one or another of the divergent ethico-political perspectives.

Secondly, the idea conveyed by previous version was that of background context conceived as an undifferentiated whole, inside which it was completely unclear which elements were able to drive interpretive activity; and this flaw was particularly relevant in the case of DID, where the ethico-political elements that really influenced the interpretive choices there weren’t highlighted at all. It was mainly an “irenic view”, in which there was one and only one monolithic context at a time.

Now I believe, at least in the domain of legal interpretation (and much more so in the case of DID), that what I thought was a single context is actually divided into a plurality of sub-contexts, which are very different from each other.

The problem that I’m facing, at this stage of my research work on DID, is how to assimilate these new developments into a coherent theoretical body. At the moment it’s a sort of a “work in progress”, and therefore I can only offer some suggestions.

In the first place, I am convinced that the contextualist perspective that I have adopted in the book can be maintained as the most suitable approach to meaning for legal interpretation. With the help of this perspective, it is possible to analyse and explain, better than with other theories, the interpretive process through which a legal sentence becomes, through intervention of – background and proximal – context, a norm, sometimes one of the many possible norms to be derived from the sentence.

However, to explain interpretation better in the case of DID, it is necessary to make some external additions to the original theoretical system, i.e. to draw some integrations from more or less different theories of meaning that are part of the contemporary scene in philosophy of language. I feel no difficulty in doing this, because my priority is not that of assembling a general theory of meaning, but, on the contrary, that of taking all the materials that could be useful for

                                                                                                               26) See, for instance, the essays of Poggi (2012, 55-65), Vignolo (2012, 67-75) and Kristan (2013, 143-200). 27) These critical observations resemble, to some extent, those addressed by Toulmin (1972, 105-129) to the kuhnian notion of paradigm.

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increasing the explanatory power of theory of legal interpretation. But, of course, not all integrations are fine. Not so with the suggestion coming from MacFarlane regarding truth relativism (2014, VI-VII, 59 ff, 76 ff., 92), according to which, in some linguistic domains, a sentence could have a stable propositional content in different contexts of use, while its truth values may change in relation to different contexts of assessment.

Theory of interpretation does at all not need this duplication of the contexts, because all the interpretative work, that is the conversion of the disposition into norm, is performed inside the various interpreters’ contexts. We can call them contexts of interpretation; in so doing we will perhaps succeed in distinguishing more sharply the original context of use (for instance the context in which the legislator is placed) from the subsequent and spatio-temporally differentiated context in which the jurist-interpreter is placed.

In using the phrase “contexts of interpretation” I’m adopting a terminology used by Cappelen (2008, 23 ff.) for characterizing his relativistic thesis, according to which contexts of interpretations (conceived in a quite general way, without specific reference to legal domain) are the contexts inside which utterances of sentences are – quite often very differently – interpreted, and so their semantic content may change in relation to the differences in the contexts. This is the kind of relativization that it is important to introduce for legal interpretation in general, and a fortiori for cases of DID.

What remains to be highlighted is the kind of contextual parameter which plays the pivotal role in determining the discordant interpretive choices in DID. Well, here we may welcome another important suggestion coming from contemporary philosophy of language: specifically from Kölbel (2002, XV, 32, 91-102), according to whom the adoption of a perspective or of a set of standards is the relevant contextual element that explains radical disagreements, even in DID, where the perspectives are of an ethico-political character; with the difference, however, in respect of Kölbel’s position, that in my view the adoption of discordant perspectives explains changes in semantic contents of sentences and not in their truth values.

Undoubtedly, much work should be done towards the construction of a contextualist theory of

legal interpretation provided with sufficient explanatory power. Its important task is that of developing a theory that could be able to cope with new challenges that arise for jurists from recent evolution of rule of law systems.

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