Abstract
This short essay aims at discussing the opposition between two different views on limits in legal interpretations: I will call them (i) “no-limits option” and (ii) “pro-limits option”. As for (i), it is based on a widely diffused understanding of individual freedom: that of an unceasing breaking of all limits. This idea involves nowadays not only a number of once accepted moral limits, nor the material or social limits suffered by people, but also the limits of conceptual determinations. As for (ii), it is based on the conjecture that limit would be the condition of “no longer, not yet”—as such, a matter of authentic freedom. The “no-limits option” can easily lead, in legal interpretation, to a radical contextualism according to which there would be unlimited meanings for a syntactically and semantically same legal text. The “pro-limits option”, on the contrary, maintains that the existence of limits is reasonable, and that reasonableness is itself a limit to interpretation. In other words, the undetermined space of “no longer, not yet” in which the limits consist of is open to exploration on and beyond through appropriate procedures of reason-giving. According to the “pro-limits option”, a reasonably common core-meaning of a legal text should be sought also when cases of application vary—and that would be precisely the nature of legal interpretation. Arguments in favor of this thesis can be found in Western philosophy from Aristotle to contemporary neurosciences (according to which reasonableness is natural). A remarkable consequence of my discussion on these two options deals with the concept of normativity, given that option (i) conceives normativity only as an expression of will (the one to establish and to infringe limits), whereas option (ii) links normativity to reasonableness.
Highlights
It would be appropriate to distinguish in advance what this paper deals with and what it does not.1 First it does not deal with the so-called practical limits of law
A practical limit is generally intended as a limit concerning the relationship between the purpose of the legislature in making the rule – which involves the political level of the discussion, in the sense of the policies the law-makers agree with in order to regulate a certain social issue and the means imagined to achieve this end, which can be known thanks to the text of the regulation
To remain at my example above, it should be considered if a general prohibition of alcohol consumption like the one operated by US government in the 1920s could be effective in limiting alcohol abuse or, on the contrary, it will end up encouraging it in illegal and hidden ways
Summary
It would be appropriate to distinguish in advance what this paper deals with and what it does not. First it does not deal with the so-called practical limits of law. The evaluation about limits like the means-ends ones is generally carried out a posteriori or at least it is grounded in advance (when the rule has to be established) on some experiences already made in the field or in similar fields – so that an a posteriori judgement is required. This kind of limits is a matter of “wisdom” (phronesis) and as such it implies reasonableness. I will consider here only the specific part of legal discourses represented by legal argumentation in judicial decisions (either from the part of the judge or from that of the lawyers), slightly addressing the role of reasonableness in being as well as in giving limits to law, just as the title of my essay suggests
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