Version: v1, Published online: 1998
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5. Interpretation and rights
Uncertainty as to the real ‘closure’ of a legal system will crop up also at the level of words which make up such rules. This of course is the problem of interpretation. Some realists advance an entirely sceptical theory of interpretation (rule-scepticism) in which no certainty is possible. While many will dismiss such extreme arguments as bad semantics, even the most hardened of positivists will feel much less confident when it comes to certain operations within legal systems, or about certain words of legal discourse that express concepts which have a fundamental role in legal arguments, especially words designating (legal) rights.
Rights are easily identifiable as the Trojan Horse by which external material slips into an otherwise apparently closed legal system. Opponents of positivism will then say that this is because such material is not really external to the law to begin with, but is only seen as such by an overly narrow (legalistic, formalist) conception of law and the rule of law. The legal naturalists will claim that this clearly shows that certain moral ideas are a necessary part of the construction of a right (and hence that morality is necessary to the task of describing law). This argument draws formidable support from the Constitution of the USA as interpreted by their courts, which includes several moral principles and makes them justiciable (Hart 1977).
To legal positivists, wholly open-ended interpretation would make the rule of law an empty travesty, for it depends upon the end of certainty. They point to the difference between mere legality and strict legality. The rule of law requires legality in the second sense, which implies not only that legal decisions be taken according to a law, but also that the words of the law be formulated by positivistic-minded legislators in such a way as to have a relatively determined meaning; and that interpreters must make the maximum effort in good faith to extract such a meaning before resorting to discretion (Ferrajoli 1990).
All this explains the apparently perverse positivistic attempts to ‘sterilize’ legal rights. If the rule of law in this strict sense has to survive, then rights must be reducible to the words of positive legal rules. Rights must derive from rules and not the other way around.
Most positivist accounts of the theory of legal rights, such as Kelsen’s, stress that law must be entirely reduced to legal norms, and that therefore rights and legal institutions must also be so reduced. Ross’ legal realist theory of a legal right (Ross 1951) follows the same reductionist line as Kelsen’s (see Ross, A.). Legal rights amount to no more than a conceptual facility which merely makes it easier to sum up the underlying legal rules. The difference is that the positivist will say that the content of a right is a set of duties and powers attributed by legal rules, usually statutes, while a realist will say that rights and duties are empty words without any reference to facts, which at most (Ross) are a useful shorthand for describing and predicting the probable behaviour of the courts, and at worst (Olivecrona 1971) are powerful irrational social factors such as people wrongly believing in the existence of rights and being conditioned by such illusions (see Olivecrona, K.).
The opposite position claims that rights contain more than the words of the legal rules which express them; that they contain a normative surfeit, which can be extracted out of them without making new law. In this case rights could be a source of ‘new’ law which is not new but already there, although sometimes previously unstated and unsuspected. In the last twenty years Ronald Dworkin has moved a brilliant attack on the tenets of legal positivism in its Hartian form. Precisely in the name of legal rights, Dworkin has formulated in a renovated form the traditional theory of normative surfeit, that law cannot or should not be reduced to a set of explicit rules (Dworkin 1978).
The forward line of defence of positivism on this specific front is today held by Neil MacCormick (MacCormick and Weinberger 1986). As all good defences, MacCormick’s stance is composed of a counterattack and a retrenchment. Against Dworkin, the basic tenet of positivism, the distinction between describing and evaluating the law, is reaffirmed (in the name of Bentham); the retrenchment is MacCormick’s institutional theory of law, where a theory of right still based on rules is advanced, which attempts to make sense, through the concept of institution, of the aspects of legal rights not strictly reducible to already explicit statutory words (see Institutionalism in law §5).
Jori, Mario. Interpretation and rights. Legal positivism, 1998, doi:10.4324/9780415249126-T008-1. Routledge Encyclopedia of Philosophy, Taylor and Francis, https://www.rep.routledge.com/articles/thematic/legal-positivism/v-1/sections/interpretation-and-rights.
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