Abstract

POGGI, Francesca. The Communication Theory of Legal Interpretation in the Constitutionalised Legal Systems. Theoretical and Empirical Critiques. Isonomía [online]. 2023, n.58, pp.57-81.  Epub Aug 11, 2023. ISSN 1405-0218.  https://doi.org/10.5347/isonomia.58/2023.658.

This essay aims to critically examine the so-called communication theory of legal interpretation. Such theory, which is very widespread, claims that there is no relevant difference between ordinary conversation and legal interpretation, since both are ways of understanding an intentional communication. In particular, according to this theory, just as the content of an ordinary conversation is constituted by the speaker’s communicative intention, so the content of law is determined by the legislators’ communicative intentions. After briefly introducing the communication theory and the reasons behind it (§2), I will examine the theoretical criticisms that have been raised against it (§3), how its proponents react to those criticisms by modifying some elements of the theory, and whether such adjustments are sufficient to overcome the criticisms (§4). Then I will formulate an empirical critique against the communication theory in its various versions. I will argue that this theory is false –it does not provide a true description of legal interpretative practice– with respect to some legal systems –the constitutionalised legal systems (§5). Finally, I will briefly mention the consequences that the falsity of this theory yields with respect to some essential values of democratic states (§6).

Keywords : legal interpretation; communication theory; legislative intent; constitutionally oriented interpretation; content of law; Jeffrey Goldsworthy.

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