William Twining, David Miers, How to Do Things with Rules
Why have rules?
It may be of some help to examine the sort of reasons usually given for having rules. Our aim in doing this is not to survey comprehensively the possible ways of justifying rules. It is to look at some common ways of doing so in order to gain some insight into the nature of mandatory norms generally. Mill admirably summarises two very common reasons for having rules: 'By a wise practitioner, therefore, rules of conduct will only be considered as provisional. Being made for the most numerous cases, or for those of most ordinary occurrence, they point out the manner in which it will be least perilous to act, where time or means do not exist for analysing the actual circumstances of the case, or where we cannot trust our judgment in estimating them' (A System of Logic, 6, 12, 3).
Rules are thus justified as time-saving devices and as devices to reduce the risk of error in deciding what ought to be done. We may add to these features the related justification of rules as labour-saving devices. A rule can be examined in tranquility on the basis of the best information available concerning the factors likely to be present in the situations to which it applies. The rule states what is to be done in these situations on the balance of foreseeable reasons. When a situation to which it applies actually occurs the norm subjects can rely on the rule, thus saving much time and labour and reducing the risks of a mistaken calculation which is involved in examining afresh every situation on its merits. (J. Raz, Practical Reason and Norms (1975), 1990, p. 59)
Offences Against the Person Act 1861, s. 57
Whosoever, being married, shall marry any other person during the life of the former husband or wife, whether the second marriage shall have taken place in England or Ireland or elsewhere, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding seven years; and any such offence may be dealt with, inquired of, tried, determined, and punished in any county or place in England or Ireland where the Offender shall be apprehended or be in custody, in the same manner in all respects as if the offence had been actually committed in that county or place: Provided, that nothing in this section contained shall extend to any second marriage, contracted elsewhere than in England and Ireland by any other than a subject of Her Majesty, or to any person marrying a second time whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by such person to be living within that time, or shall extend to any person who, at the time of such second marriage, shall have been divorced from the bond of the first marriage, or to any person whose former marriage shall have been declared void by the sentence of any court of competent jurisdiction.
Interpretation
The interpretive function may be said to be the central function of a legal system. (Talcott Parsons)
Introduction
In this book 'interpretation' used to refer to the activity of puzzling over, considering, arguing about and determining the meaning and scope of an object of interpretation. Difficult questions arise about legal and non-legal rules as objects of interpretation, the relationship between meanings of words and meanings of rules, how interpretation in legal contexts is similar to and
different from interpretation in literature, theology and social relations, and questions about literal, legalistic and purposive interpretation. This section introduces some examples and quotations that raise some basic questions about these themes.
Interpretation: what?
Applying the law always involves interpreting it. Any norm posed in an authoritative legal text has to be understood before it can be applied. Accordingly in a wide sense of the term 'interpretation', every application of law requires some act of interpretation, since one has to form an understanding of what the text says in order to apply it, and any act of apprehension of meaning can be said to involve interpretation... This applies even to mundane settings... A narrower or stricter conception of interpretation is more useful and relevant in the study of legal reasoning. This is the sense according to which we 'interpret' only when facing some occasion of doubt about meaning, followed by a resolution of that doubt by reference to some reason(s) supporting the preferred way of resolving it. (Neil MacCormick, Rhetoric and the Rule of Law (2005), p. 121)
First, it is an explanation or in performance-interpretation) a display of an object.
Second, it explains an object by making plain its meaning. Only what has meaning can be interpreted.
Third, some interpretations are good and some are bad, and some are better than others. This is not to say that all interpretations can be ranked by how good they are. Some are incommensurable.
Fourth, a good interpretation is one that explains the meaning of its object, and thereby the object that has that meaning, so that the intended audience does, if it tries, understand it.
These four features are probably true of interpretation in general. The special kind of interpretation (that we are concerned with) shares these four marks of interpretation, but has three additional ones:
Fifth, a good interpretation provides understanding, not merely knowledge. This in itself excludes the giving of a dictionary meaning, substitution of synonyms or near synonyms, and translation; that is it excludes semantic meaning.
Sixth, interpretive pluralism: there can be more than one good interpretation of objects with meaning.
Seventh, some good interpretations are innovative, in a strong sense. That is they are not merely new in having been hitherto unknown to some or all. They are innovative in that the meaning they explain is not one the object has independently of them. (Joseph Raz, Between Authority and Interpretation (2009) pp. 301-2)
Objects of interpretation
Central to my account of interpretation is that typical objects of interpretation are what I will call cultural goods, namely things whose meaning depends on cultural practices. They are goods' in a loose sense. They include things, relationships, activities, institutions, and more which can be good or bad. They are normative in that they are produced and maintained by activities aimed at achieving goals assumed to be valuable, or by activities which are seen as subject to norms assumed to be valid. Two main classes of goods stand out. First, works of art, including literary works, musical works, and products of the visual arts. Second, social relations (such as the various forms of friendship), social events (such as weddings) and, more indirectly, social institutions. (Joseph Raz, ibid., p. 305)
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