Deep interpretive disagreements and theory of legal interpretation

Abstract

This paper deals with deep interpretive disagreements (DID): very profound divergences that may occur in legal interpretation (on single cases, or on similar cases) among judges and jurists. These divergences involve alternative interpretations of certain expressions or phrases (for instance, “human person”, “dignity”, “personal autonomy”, “life”, “health”) and may lead, under certain conditions, to incompatible interpretations of the legal sentences that incorporate these expressions. The most important examples of this kind of legal sentences are constitutional provisions that express principles asserting legal rights. The main thesis of this paper is 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, after inquiring into the properties of these kinds of disagreements, and exploring their implications in law (also through the discussion of two Italian legal cases, the famous cases Englaro and Welby), the author examines two very important questions that may be raised about these disagreements: a meta-ethical question (“In what ways can we justify or settle or even solve these disagreements?), and an epistemological question (“How to explain disagreements?”) and offers an original answer to both.