Rethinking Interpretative Arguments

Abstract

AbstractProblems in the interpretation of legal provisions often lead to disagreements in the establishment of statutory meaning in law. When facing real or potential conflicts of opinion, legal practitioners generally provide reasons to support one interpretation over another, resorting to different types of arguments to support their claim. Such arguments were tentatively categorized by MacCormick and Summers (Interpreting statutes. Routledge, New York, 1991) in the form of an interpretative model for statutes. In this paper, I explain how this model overlaps with general principles of text analysis as proposed by Textual Discourse Analysis, a theory of text linguistics, and how statutory interpretation and text analysis are intertwined. I reconsider the notion of interpretative arguments as suggested by the model, arguing how linguistic arguments in fact function as a gateway to all other argument types, and discuss certain analytical possibilities when applied to the interpretation of commitments in hypothetical contexts adopting Multilateral Environmental Agreements as a central point of reflection. It is suggested that a framework could be developed with the purpose of providing a tool for establishing statutory meaning based on textual data from a linguistic perspective, while also considering the role played by interpretative argumentation in this process. It is further proposed how pragma-dialectics could contribute to this endeavor, taking into account, for example, its theoretical affinities with Textual Discourse Analysis and distinct heuristics for the analysis and evaluation of argumentation, after which I reflect on how argumentation structures could be used as descriptive tools of statutory meaning.KeywordsTextual discourse analysisInterpretative argumentationStatutory meaningPragma-dialecticsMultilateral environmental agreements