A Theory that Beats the Theory? Lineages, the Growth of Signs, and Dynamic Legal Interpretation

25 Pages Posted: 17 Apr 2015

See all articles by Marcin Matczak

Marcin Matczak

Warsaw University - Faculty of Law and Public Administration

Date Written: April 17, 2015

Abstract

Legal philosophers distinguish between a static and a dynamic interpretation of law. The former assumes that the meaning of the words used in a legal text is set at the moment of its enactment and does not change with time. The latter allows the interpreters to update the meaning and apply a contemporary understanding to the text. The dispute between these competing theories has significant ramifications for social and political life. To take an example, depending on the approach, the term “cruel punishment” used in the US Constitution will be given an 18th century meaning or a contemporary one.

The philosophy of language seems to provide greater support to the static approach to legal interpretation. Within this approach the lawmaker is perceived as a speaker and legal texts are interpreted as utterances. As a consequence, interpretation is a quest for the speaker/lawmaker’s intention or the public meaning that prevailed at the time of enactment. Neither the intention nor the public meaning are considered to have changed in time.

In this paper I argue that the philosophy of language provides the dynamic approach with an equally robust support as the static one. This support comes from an externalist perspective in semantics, rooted in philosophical pragmatism and supported by Ruth Millikan’s concept of meaning as proper function. Grounding the dynamic approach in a well-founded linguistic philosophy rises to the challenge presented by the originalists’ declaration that “it takes a theory to beat a theory”.

Keywords: originalism, living constitutionalism, dynamic legal interpretation, speech acts, semantic externalism, constitutional interpretation

Suggested Citation

Matczak, Marcin, A Theory that Beats the Theory? Lineages, the Growth of Signs, and Dynamic Legal Interpretation (April 17, 2015). Available at SSRN: https://ssrn.com/abstract=2595519 or http://dx.doi.org/10.2139/ssrn.2595519

Marcin Matczak (Contact Author)

Warsaw University - Faculty of Law and Public Administration ( email )

Krakowskie Przedmiescie 26/28
Warszawa, 00-927
Poland

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