Legal interpretivism

Abstract

Interpretivism about law offers a philosophical explanation of the impact of institutional practice -the legally significant action and practices of political institutions- on legal rights and obligations. It says that how institutional practice affects the law is determined by certain principles, identified by interpretation, which explain why the practice should have that role. I distinguish between hybrid interpretivism, which has been extensively discussed in the literature, and a non-hybrid version that has been completely neglected. The key difference between the two lies in the role of morality in each. In the hybrid version, morality is used to process a set of institutionally conveyed norms, so as to make the set as morally attractive as possible and thereby to ensure that morality ratifies the rights and obligations that obtain under it. This operation gives rise to the problem of choosing among possible tradeoffs between moral appeal and fidelity to the past, which seems intractable. In the non-hybrid version, problems such as this do not arise. Morality ultimately determines the content of the law, by determining the moral relevance of institutional action. On this view, legal rights and obligations are a subset of genuine moral rights and obligations: Those that obtain in virtue of institutional action.