The action between ‘being’ and ‘having to be’
Interpretation is a dynamic phenomenon . To suggest it is the same etymology ( inter-, indicative of a position of mediation, and praes , implying a positive action) which identifies in the interpreter a subject stretched between three temporal scans: the past as a moment of position of the norm; the future as a reference parameter for the logic of the reasoning followed, which must be proposed as a valid comparison for subsequent interpretations; the present as a social, economic and political context, a place for relationships that color the attributions of meaning made by the interpreter with meaning.
What does it mean that interpretation dominates the law? What consequences derive from the observation that the interpretation and application of the law are intimately linked operations? The dynamism of interpretation is reflected in the essentially practical purposes that inspire it, in the existence of concrete cases to be regulated and which require specific action. The science of law, understood as applied knowledge that resolves conflicts, sees controversy as its source of production and a primary sphere of intervention of interpretation: precisely where interpretative doubts arise, spaces are opened for a new vision of the world . The conception of interpretation as actio duplexit allows to overcome the dualism between norm and fact and to underline the eminently practical value of social law-practice.
Interpretation can be defined as intellectual activity and the “act of creative will” (Gustavo Zagrebelsky, Right to the mirror ) which associates linguistic expressions – signifiers – with a meaning, a meaning inevitably dropped into a specific social context. The latter, like law, understood as a social practice aimed at solving problems, thrives on relationships that time changes constantly, opening horizons that in today’s multicultural societies are colored by experiences that are sometimes very different in places and times, even if extremely next.
Often it has been possible to find the recurrence of expressions such as ‘end of the state’ or even ‘end of history’. They seem emblematic expressions of a crisis that envelops the fundamental juridical institution, the only one capable of allowing the Hegelian spirit to truly show itself as the “Spirit of the time”, directly undermining the foundations of the key instrument that allows its creation in the world: law and its sources (Paolo Grossi, Return to law ).
Faced with what Paolo Grossi defines as the “conceptual shock of a real theoretical and practical earthquake” that has affected entire sectors of the legal system, with the parallel and consequent expansion of the role of the judge, in the face of the inability of today’s legislator to respond promptly to the needs of a world in constant evolution, judicial interpretation has rediscovered and reaffirmed its centrality with greater force, drawing new life blood from the demands of justice that are increasingly urgently addressed to law.
In the dominant legal discourse it is argued that interpretation dominates the law , since unlike natural laws, which are knowable, legal norms can only be re-known (Claudius Ewald Messner, Orientations of law ). The practical-dynamic value of law, which the expression just cited underlines, consists properly in the inseparable link between application and interpretation, with the awareness that “discretion corresponds to a certain degree of creativity” (Zagrebelsky): the classical theory of interpretation it can now be considered outdated. However, here arises the need for a methodical control of the interpreter’s activity, in order to limit his exuberant activity.
For Foucault, it is the author of the text who is the guarantor of the unity of meaning attributable to it, as its origin and its discursive center. And, in effect, “the interpreter is bound to the text, but is also burdened by another constraint, which comes to him from the recipients of the message: he must be understandable, indeed, convincing. This means having to ‘take into account’ the cultural context in which the reception takes place “(Zagrebelsky), in a trilateral relationship both from the spatial point of view – between the interpreted text, interpreter and recipient of the interpretation -, as well as temporal – in the dialogue between a present which is the single concrete case, between a past which is the norm and between a future which will welcome interpretation.actio simplex which sees the judge committed to operate on the rules “making them descend” on the facts (Rodolfo Sacco, L’interpretation, ), when “the principles, on the contrary, claim to be interpreted, due to their indeterminacy and elasticity” (Grossi ).
However, it would not be possible to grasp the intrinsically dynamic nature of the interpretative process if one did not overcome the stalemate of a similar logical-legalistic and positivistic approach, reducing the entire activity of the judge to a mere deductive syllogism, condemned by Hume’s law to impotence before the ‘incommunicability between the two worlds of being (the facts) and that of having to be (the norms), if not reaching the acceptance of a broader vision, crystallized in an actio duplex . With it it is possible to arrive at an interpretation that can be said to be ‘successful’ and at the recognition of a norm that is adequate both for the law and for the concrete case or for ” human facts ” , understandable “according to categories of meaning and value “(Zagrebelsky) .
These categories constitute the ‘horizon of expectations’ ( Erwartungshorizont ), essential for a decision to be defined as correct and in accordance with the dictates of law, justice and rationality. Even in the crisis of post-modern society , it is still the Constitution, “set of values capable of constituting , that is , of establishing and at the same time stabilizing, a juridical experience” (Grossi) that offers the common and founding values of a society and to embody the spirit of an action that tries to cancel as much as possible the distance between being and having to be.