Damiano Canale

On Legal Inferentialism: Toward a Pragmatics of Semantic Content in Legal Interpretation?

In this paper we consider whether a pragmatics of semantic content can be a useful approach to legal interpretation. More broadly speaking, since a pragmatic conception of meaning is a component of inferential semantics, we consider whether an inferentialist approach to legal interpretation can be useful in dealing with some problems of this important aspect of law. In other words, we ask whether Legal Inferentialism is a suitable conception for legal interpretation. In Section 1 we briefly consider the semantics/pragmatics debate in contemporary philosophy of language and in relation to legal interpretation. In Section 2 we discuss the relations between a pragmatics of semantic content and an inferentialist conception of content. In Section 3 we consider how Inferentialism can be applied to legal interpretation. Finally, in Section 4 we consider some possible advantages and drawbacks of Inferentialism applied to legal interpretation and adjudication.

Analogy and Interpretation in Legal Argumentation

While restrictive interpretation is justified when “the law says more than it wanted”, extensive interpretation is justified when “the law says less than it wanted”. But extensive interpretation is in tension with the prohibition of reasoning by analogy in criminal law, so we should explain what the difference is between extensive interpretation and analogical reasoning. In some legal systems the latter is prohibited in criminal law (unless it is in favor of the accused) and the former is not, but it is very unclear whether there is a difference between the two and what it might be. Some scholars say that they differ from a theoretical point of view, since the ways they produce their outcomes are different: extensive interpretation claims that a given case falls under a norm obtained by interpreting extensively a given provision; analogical reasoning claims that a gap is filled by arguing analogically from a source case to a target case. Or, to put it differently, with the latter a new norm is created, while with the former the meaning of an existing norm is extended. But the two do not differ from a practical point of view, since their outcomes are the same (the regulation is extended to the case in hand). Is there a way to distinguish them in theory and practice? The paper will deal with this issue discussing a recent Italian case (the “Vatican Radio case”) where the Court of Cassation claimed to argue from extensive interpretation and not from analogy.

What Inferentialism Tells Us About Combinatory Vagueness in Law

What is the best way to address the problem of combinatory vagueness in legal adjudication? According to a view widely held by philosophers of language, courts must make reference to what the legislature intended to say. Intentional content makes up for the lack of determinacy of meaning and contextual content, and can be used to reduce combinatory vagueness to such an extent that it can be determined whether a combinatory vague norm applies to borderline cases. In this paper I argue that this view does not provide a convincing account of how legal language works since it does not take into consideration the specific characteristics of legislative intention and the institutional dimension of linguistic communication in law. I then put forward a different explanation of combinatory vagueness based on an inferentialist approach to semantics and pragmatics. In this account, combinatory vagueness is a feature of language which depends on a specific form of disagreement between the participants in an exchange of reasons. By looking at the linguistic interplay between parties and judge in a legal dispute, the paper shows how combinatory vagueness arises and how it is reduced by courts in order to settle borderline cases.