Vol 18 No 1 (2018)
Essays

Taking Context Seriously

Pierluigi Chiassoni
Istituto Tarello per la Filosofia del Diritto, Genoa University
Published October 26, 2018
Keywords
  • Legal interpretation,
  • contextualism,
  • Literalism,
  • interpretive cognitivism,
  • Interpretive non-cognitivism

Abstract

The paper is part of a larger project that aims at arguing for a construction conception of legal meaning. The basic claim I wish to make may be phrased as follows: the meaning of legal provisions neither is simply discovered, nor is a matter of wholesale creation, though it may involve significant pieces of interpretive creativity; rather, it is constructed out of pre-existing materials through a typically reflexive and holistic process. In support of the construction picture, four different, conspiring, arguments seem worthwhile considering: an argument from interpretive games (and Grice-inspired interpretive maxims); an argument from the dispute between literalism and contextualism; an argument from the failure of semantics-driven legal pragmatics, and, finally, an argument from the failure of semiotic vindication of “texts’ rights” and “the limits of interpretation”. Only the second argument, the argument from the dispute between literalism and contextualism, will be deployed here. In the first part of the paper, I will provide an outline of two competing jurisprudential theories about legal meaning and interpretation: semantic quasi-cognitivism and pragmatic non-cognitivism. In the second part of the paper, I will offer a bird-eye account of the dispute between literalism and contextualism in contemporary philosophy of language and linguistics. In the third, and last, part of the paper, I will pause to reflect on what a jurist concerned with legal meaning and legal interpretation could get out of the dispute between literalism and contextualism. I will claim that the dispute provides substantive suggestions for getting rid of semantic quasi-cognitivism and endorsing a sophisticated, meaning construction version of pragmatic non-cognitivism.