Meaning Propositions
In DSL, the focus is only on the interpretation sensu stricto (Aarnio 1987, 67). Let us call M meaning proposition. It expresses the meaning content of a linguistic expression, L.
One example of L, and for DSL the most important, is a statute (article), A. It is typical of M that it reveals a list or catalogue of the possible meaning alternatives. In a single case, the meaning proposition Mi can be formulated as follows:Mi: L (an article) means (disjunctively) L1, L2 or L3.
From another point of view, the meaning proposition Mi can be understood as a norm formulation. Each meaning alternative, L1, L2 and L3, expresses a possible norm, N1, N2 and N3. In this regard, the meaning proposition Mi is an articulation of a set of norms. Depending on the linguistic or normative dimension, we can draw up either alternative meaning propositions (Mi/L1, Mi/L2, Mi/L3) or, correspondingly, alternative norms (N1, N2, N3).
As far as the multiplicity of meaning alternatives is concerned, the following distinction is useful:
(1) semantic or lexical meaning alternatives,
(2) legally possible alternatives, and
(3) contextually possible meanings (Aarnio 1997, 143).
The first group covers all the meanings we may recognise on the basis of our lexical understanding - that is, by means of dictionaries or other common linguistic usage. This group reveals the widest possible cluster of meanings, and is very seldom used as such in legal contexts.
The task of DSL is to select those meaning candidates that the legal order makes possible. The frameworks for meaning provided by the statutes are wide and undergo change along with language. Still, the legal order always indicates some boundaries for the use of linguistic expressions.
The third alternative is the most limited. Contextually possible meanings are defined by the proper use of sources of law.
Since a single correct result cannot be drawn from sources of law in hard cases, the third group also offers a group of alternatives, nothing more. It is the task of the scholar or the judge to make the final choice between them.The proper interpretation does not have to be confined to the catalogue of possible meaning alternatives. What is essential is the selection procedure - i.e., a move from the lexical meanings to those which are contextually possible. This selection is necessary in the case of disagreement. In a legal discussion, the parties may disagree and often actually disagree with the meaning content of a proposition. This belongs to the everyday life of DSL. In order to determine whether the parties are or are not in real disagreement, one has to have a yardstick, as Svein Eng says:
“Comparison presupposes a common yardstick and common features: Just as the comparison of two phenomena with respect to length presupposes that one has concepts of units of length and that these concepts are applicable to both phenomena” (Eng 2003, 3). In his study, Eng clarifies such yardsticks for the comparison of and choice between propositions (Eng 2003, 28-354).
In this sense, interpretation is always a matter of language and deals with meaning contents. From the point of legal order, the interpretation produces information about the valid norms and recommendations on which norm is valid with all things considered. A certain alternative, for instance L1/N1, is selected as the “correct” or “best justified” from more than one candidate for special reasons. With this in mind, we might use the term interpretative standpoint (Ps). This proposition expresses the final result from the arguments used to support the choice between different meaning candidates L1...Ln, for example:
Pi: The article L means L1.
Providing arguments for an interpretative standpoint, Pi, is legal reasoning. It has to be practised by the judge who solves a legal question, but it is also a characteristic of DSL, even though a scholar does not apply statutes to actual cases.
The scholar maps out the typical cases covered by the statutes.As we have seen, legal discourse can be characterised as a hermeneutical procedure, because there are, certainly, hermeneutical features involved in legal reasoning. However, hermeneutics does not include any methodical apparatus for how one should approach the statutes or other legal materials in order to produce good, correct or well-founded interpretations. Hermeneutics is more like a viewpoint or a background philosophy pointing out one essential dimension of legal discourse, but only that. The most essential weakness of hermeneutics is the lack of the means to control the interpretative propositions. Instead, the controllability is guaranteed by the procedural theory of legal discourse. It regulates the selection of the meaning alternatives in hard cases. The selection cannot be made randomly or arbitrarily.
The Swedish reformer Olaus Petri recorded this in the 16th century in his instructions for judges: “Arbitrariness or violence is not the law of the land”.
Naturally, there is no similar obligation of reasoning for DSL as for the judges. The “obligation of reasoning” for DSL follows, on the one hand, from the fact that the scholar is in the same epistemically internal position as the judge, and on the other hand, from the requirement of controllability set for science in general. In this regard, an attempt will be made in this study to build up an ideal model of legal reasoning. The credible and acceptable interpretation depends on the good reasoning procedure in DSL as well as in the adjudication.