Frames v. Containers

Abstract

The chapter proceeds in the exploration of the dispute between interpretive cognitivism (“formalism”) and non-cognitivism (“realism”) from a further vantage point. It considers and compares two competing theories concerning the notions of legal interpretation and of general norms of written-law. These are the frame of interpretations theory and the container-retrieval theory—the latter, as we shall see, in a conventional linguistic meaning variety. Three lines of argument will be deployed to defend the frame theory from “retrievalist” critiques. To begin with, I will claim that it is immune from the pretended capital flaw of being unable to allow for a clear-cut distinction between explicit norms (the norms representing the meaning of a legal provision) and implicit norms (the norms “without provision” representing the un-expressed, tacit, content of the law). Furthermore, I will claim that it is also immune from a second, pretended capital flaw: i.e., its alleged inability to discriminate between legal orders where legislation is a source of law and legal orders where legislation is not a source of law. Finally, I will argue that, as a theory of written norms, interpretation and argumentation, the frame theory enjoys of a competitive advantage over the rival theory, on four grounds: juristic commonsense, contemporary pragmatics, ideological neutrality, and conceptual adequacy. As a whole, the chapter purports to add another, third, link to the argument for a realistic, construction conception of legal meaning.