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7.1 Expository Versus Censorial Jurisprudence

The very beginning of every discussion about neutrality, meant as “Wertfreiheit”, in the legal domain—it seems to me—is Jeremy Bentham’s distinction between expository and censorial jurisprudence: “A book of jurisprudence can have but one or the other of two objects: (1) to ascertain what the law is; (2) to ascertain what it ought to be. In the former case it may be styled a book of expository jurisprudence; in the latter, a book of censorial jurisprudence: or, in other words, a book on the art of legislation”.Footnote 1

Bentham’s distinction is echoed by John Austin in the following way: “The existence of law is one thing, its merit or demerit is another, whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation”.Footnote 2

The same attitude is shared by Hans Kelsen too: his “pure theory of law” purportedly responds to “the required separation of legal science from politics”Footnote 3; the pure theory “is being kept free from all the elements foreign to the specific method of a science whose only purpose is the cognition of law […]. A science has to describe its object as it actually is, not to prescribe as it should be or should not be from the point of view of some specific value judgments. The latter is a problem of politics, and, as such, concerns the art of government, an activity directed at values, not an object of science, directed at reality”.Footnote 4

Both Bentham and Austin, as well as Kelsen, aimed at distinguishing the value-­free knowledge of the law from (a) the moral or political criticism and/or approval (or justification) of the existing law as well as (b) legal policy (viz., directives de lege ferenda addressed to the legislature).

Notice that if law is conceived of as a language—the language of law-giving authoritiesFootnote 5—then both expository and censorial jurisprudence are second-order languages whose object-language is the law itself. Both concepts (expository and censorial jurisprudence) suppose a sharp logical distinction between the language of the law and the language of lawyers.

Nonetheless, Bentham’s, Austin’s, and Kelsen’s characterization of expository jurisprudence as pure cognition of the law as it is—hence a purely cognitive, value-­free, enterprise—cannot be taken as a satisfactory description of the actual practice of academic lawyers—i.e., in French juristic language, “la doctrine”. Rather, it should be understood as a normative model of “legal science”, since almost every book or essay usually claiming to be and actually considered as a piece of legal cognition (“expository jurisprudence”, knowledge of the law in force) cannot be reduced to a merely cognitive enterprise.Footnote 6

7.2 The Issue Restated: Legal Science Versus Legal Scholarship

In the common usage of continental jurisprudence the ordinary juristic work is frequently labelled as “legal science”,Footnote 7 “legal doctrine”,Footnote 8 or “legal dogmatics”.Footnote 9 Nonetheless, all such phrases can be understood as pointing to (at least) two quite different intellectual enterprises which ought to be distinguished:

  1. 1.

    On the one hand, legal science properly so called—the “science of law” (Kelsen), the “science of jurisprudence” (Austin)—i.e., the scientific (neutral, value-free) description of the law in force Footnote 10;

  2. 2.

    On the other hand, what I shall call legal scholarship,Footnote 11 i.e., the usual academic investigation into the law, especially into those normative texts which are regarded as the official sources of law.

What should the science of law exactly amount to, can be questioned, e.g., it may be questioned whether it should confine itself to describing the so-called “law in books” (this is often the case in continental jurisprudential style) or it should take into account judicial decisions (case-law) as the very core of “law in action”. The first line of inquiry is (at least apparently) suggested, e.g., by Hans Kelsen; the ­second one is recommended namely by American Realists as well as the Scandinavian realist scholar Alf Ross. But this issue is immaterial in the present context.Footnote 12

Legal science (strictly understood) and legal scholarship are different matters. The main difference between them, however, is not the same as between describing and evaluating and/or prescribing. Sure, from time to time academic lawyers do evaluate—criticize or approve (or justify)—the law in force; sometimes they also make statements de lege ferenda, i.e. directives belonging to the realm of the “art of legislation” (in Bentham’s terms) or “art of government” (in Kelsen’s language). In such circumstances, however, they do not usually claim to act as genuine “scientists”. The non-neutral character of legal scholarship lies elsewhere and is the specific subject of this paper.

7.3 The Main Components of Legal Scholarship

In common juristic usage, the legal academic work as a whole is often labelled as “interpretation” without any further specification. However, such a use of the term “interpretation” is definitely too large. Its main fault is overshadowing the variety of intellectual operations actually accomplished by legal scholars. Since interpreting, properly understood, is but a part—and not the most important, I dare say—of actual juristic work. Side by side with interpretation, jurists accomplish a great deal of other operations too. I propose to label them “juristic construction”.

  1. 1.

    Interpretation stricto sensu consists in ascribing meaning to normative texts (such as statutes, the constitution, etc.). The standard form of an interpretive sentence, I assume, is: “T means M” (where T stands for the interpreted text and M for the ascribed meaning).

  2. 2.

    Juristic construction, in the sense I am going to use the phrase, mainly consists in shaping unexpressed rules, i.e. rules that no normative authority ever formulated—rules that cannot be ascribed to any definite enacted text as its meaning-­content or direct (logical) implication.

In most cases the grounds of such rules are juristic “theories” or “doctrines”,Footnote 13 such as the theory of parliamentary government, the theory of written constitutions, the theory of the relationships between European Community law and the domestic legal systems of the member states, the doctrine of incorporation of rules of international law in municipal legal systems, the opposite doctrine of transformation (according to which international rules only form part of municipal law if accepted by statutes), the competing theories of civil liability, the different conceptions of equality, and so on.

Such theories are, on the one hand, products of juristic construction and, on the other hand, powerful tools for further construction. In particular, they are used as arguments for asserting the existence or validity of unexpressed rules. Generally speaking, the framing of unexpressed rules is aimed at filling (real or supposed) gaps in the law.

But, of course, both interpretation and construction need some further analysis.

7.4 Interpretation

In common usage, “interpretation” refers sometimes to an act of knowledge, sometimes to an act of decision, sometimes to a genuine act of rule-creation. Therefore we should distinguish between “cognitive”, “adjudicative”, and “creative” interpretation.Footnote 14

  1. 1.

    Cognitive interpretation consists in identifying the (“frame” of) various possible meanings of a legal text—the meanings admissible on the basis of shared linguistic (syntactic and semantic) rules, accepted methods of interpretation, and existing juristic theories—without choosing anyone of them.

  2. 2.

    Adjudicative interpretation consists in settling one definite meaning, chosen among the meanings identified (or identifiable) by means of cognitive interpretation, and discarding the others.

  3. 3.

    Creative interpretation consists in ascribing the text a “new” meaning not included in the frame of meanings identified (or identifiable) by means of cognitive interpretation.

Suppose a legal provision P is ambiguous or otherwise indeterminate in such a way that it could be interpreted as expressing either the rule R1 or the rule R2. Well, cognitive interpretation will take the form of a sentence stating “P can mean either R1 or R2”; adjudicative interpretation, in turn, will be expressed by a sentence stating either “P means R1” or “P means R2”; creative interpretation, in turn, will consist in saying, e.g., “P means R3” (notice that, by hypothesis, R3 is not one of the admissible meanings of P, as identified by cognitive interpretation).

Take this very simple example. Article 40 of the Italian constitution states: “The right to strike will be exercised in compliance with the statutes which regulate it”. Now, suppose that no statute actually exists regulating the exercise of such a right. Well, cognitive interpretation of this constitutional provision could run, more or less, like this: article 40 of the constitution can be ascribed three different meanings—(a) the right to strike may not be exercised until some statute does regulate its exercise; (b) lacking any statutory regulation, the right to strike may be exercised with no limits at all; (c) even in absence of any statute regulating the issue, the right to strike may be exercised although within limits, viz., its “natural” limits deriving from the balance of it with other fundamental rights and constitutional values.Footnote 15 Adjudicative interpretation, in turn, would consist in choosing one of such competing meanings.

As a good example of creative interpretation, I shall mention the following. Article 72 of the Italian constitution requires a certain legislative procedure for the enactment of any “statute on constitutional matters”. No need to say that “constitutional matters” is an open-textured concept, which allows for a great deal of ­interpretive discretion. The phrase “statute on constitutional matters”, however, is not ambiguous—in ordinary juristic language, it univocally denotes ordinary (i.e. non-­constitutional) statutes bearing upon issues of constitutional significance (paradigmatic example: statutes concerning the electoral system of the Chambers). Nevertheless, according to the Constitutional Court’s opinion, it should be interpreted as meaning the same as “constitutional statutes”, i.e., statutes adopted by the special procedure required for constitutional amendments. Such a meaning of the phrase clearly falls outside the range of meanings—in the present case the one and only meaning, in fact—identifiable by cognitive interpretation.Footnote 16

Cognitive interpretation is a purely scientific operation devoid of any practical effect—it belongs to the realm of legal science properly understood. Adjudicative and creative interpretations, in turn, are “political” operations—they do not point at ascertaining the existing law; rather, they point at shaping it.

However, as far as I can see, creative interpretation, as defined above, is somewhat unusual. In most cases creative interpretation takes a slightly different form—it consists in deriving from a legal text some unexpressed (“implicit”, in a large, non-logical, sense) rules either by means of a great variety of non-deductive arguments (e.g., a contrariis, a simili, etc.) or on the basis of some a priori juristic theory.Footnote 17 Well, deriving (“constructing” or framing) unexpressed rules, strictly speaking, is not an “interpretive” act—it is a genuine form of so-called “interstitial legislation” by interpreters. And this last remark leads us to juristic construction.

7.5 Juristic Construction

Legal scholars’ books and papers are crowded by theoretical assumptions, previous to the interpretation of any particular legal provision—assumptions that have no direct relationship with normative texts.Footnote 18 Such assumptions:

  1. 1.

    First, inevitably condition interpretation, either orienting it in a definite direction or excluding certain interpretive decisions otherwise possible;

  2. 2.

    Second, most of all, are grounds for deriving a great deal of unexpressed rules.

Let me provide some examples.

  1. (a)

    According to the European Court of Justice,Footnote 19 “the European Economic Community constitutes a new legal order of international law […] which comprises not only member states but also their nationals. Independently of the legislation of member states, Community law not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the Treaty, but also because of the obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon the member states and upon the institutions of the Community. […] According to the spirit, the general scheme and the wording of the EEC Treaty, article 12 must be ­interpreted as producing direct effects and creating individual rights which national courts must protect”.

    In other words, the Court assumes the European Community Treaty to be neither an ordinary international act (governing relationships among states) nor a constitutional act (governing relationships between citizens and the state), but an entirely new kind of legal act with a mixed nature, half international, half constitutional. This “theoretical” assumption leads the Court to interpret several provisions of the Treaty as creating rights and obligations not only in the relationships among states but even in the relationships between each state and its citizens.

  2. (b)

    According to Alexander Hamilton,Footnote 20 “a limited constitution” is a constitution “which contains certain specified exceptions to the legislative authority”, i.e., a constitution limiting the competence of the legislature, and “limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all the acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing”.

    Hamilton’s reasoning—a piece of “art of legislation” in Bentham’s terms—is quite simple: the Constitution states a number of limits to the legislative power; the only way to make such limits effective is declaring any legislative act contrary to the constitution void; such a declaration cannot be entrusted but to the courts. No need to say that such a power of the courts goes far beyond the explicit provisions of the Federal Constitution of the U.S.A.

    Hamilton’s theory of limited constitutions, however, is echoed and expanded by Justice Marshall, in Marbury (1803)Footnote 21: “a legislative act contrary to the constitution is not law […]. Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of such government must be that an act of the legislature, repugnant to the constitution, is void. […] So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. […] If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such an ordinary act, must govern the case to which they both apply”.

    Justice Marshall, in other words, assumes that, according to the intention of the framers, the Constitution is superior to (more valued than) legislative acts, and derives from such a “theoretical” assumption two outstanding normative consequences—first, any legislative act contrary to the constitution is void; second, the Court is entitled to declare such an act void. Both consequences are but unexpressed rules, that the Supreme court is adding to the Constitution.

  3. (c)

    The Italian Constitution of 1948 has framed a “parliamentary government”, since the Executive is subject to the confidence of the Chambers and, in case of a vote of censure, is (supposedly) under the obligation to resign. Now, Italian constitutional lawyers (more or less unanimous on this point) maintain that, under the supposed “general theory” of parliamentary government, the President of the Republic is not the “head” of the Executive: he or she is rather a “neutral” power—something like Benjamin Constant’s pouvoir neutre—whose function is just “guaranteeing” the constitution, i.e. assuring the normal functioning of the ordinary political-constitutional process.

    Such a “theoretical” assumption has a great normative import. For example: the President is granted a veto-power over legislative acts; however, he or she may not exercise such a power on political grounds, since the function of the veto-power is allowing the President to exercise an a priori control over the constitutionality of statutes (quite different from the a posteriori control assured by the Constitutional Court); in particular, the President may use his/her veto-­power (only) against statutes whose unconstitutionality is self-evident. Another example: the acts of the Executive, although settled by the Council of Ministers, are enacted by the President, i.e. they are, properly speaking, presidential (not governmental) acts; the President, however, may not refuse his/her signature except when facing acts clearly unconstitutional. And so on. In other words, the “general theory” of parliamentary government allows legal scholars to add a great deal of rules—limiting presidential powers—to those expressly stated by the Constitution.

  4. (d)

    The Italian Constitutional Court assumes—without providing any argument—that the constitution contains (or implies) a number of “supreme principles”, which are allegedly superior to the remaining constitutional provisions, and concludes that such principles may not be suppressed, derogated, or changed in any way—not even by means of the procedure of constitutional amendment. As a consequence, the Court empowers itself to declare null and void any constitutional amendment purporting to subvert the supreme principles.Footnote 22 Notice that in no way does the existing constitutional text allow for such theses.

7.6 Unexpressed Rules

An unexpressed rule is a rule that no normative authority ever formulated—a rule which cannot be ascribed to any legal text as its meaning-content.

Every unexpressed rule is the result of an argument, in which (usually) some expressed rule is one of the premises and the unexpressed one is the conclusion. But it has to be stressed that in most cases such arguments, first, are not logically valid and, second (most of all), include premises which are not expressed rules, but arbitrary juristic conceptual constructs and theories. At least three different kinds of reasoning and three different corresponding classes of unexpressed rules can be distinguished.

  1. 1.

    Some unexpressed rules are derived from explicit rules by means of a logically valid argument, in which all the premises are but explicit rules.

    For example, a first explicit rule states “All citizens have the right to vote”; a second explicit rule, in turn, states “Everyone procreated by citizen-parents is a citizen”. From such premises one can deductively infer the implicit rule: “Everyone procreated by citizen-parents has the right to vote”.

    Unexpressed rules of this kind, however, are of no interest in the present context, since, although not formulated by normative authorities, they are logically entailed by explicit rules (without adding any further premises). Their juristic formulation is the result of a merely cognitive operation.

  2. 2.

    Other unexpressed rules are derived from explicit rules by means of logically invalid arguments—e.g., argumentum a simili, argumentum a contrariis, etc.

    For example, a constitutional provision grants all “citizens” the right to vote; arguing a contrariis, one could maintain that such a provision implies the unexpressed rule according to which non-citizens are positively (although implicitly) excluded from the exercise of such a right (in such a way that a statute granting them the same right would be unconstitutional). Another example: a statutory provision grants “big corporations” a tax-break; arguing a simili, one could maintain that, in the light of a supposed ratio legis (e.g., economic development during a financial crisis), big corporations are essentially “similar” to medium-­size companies and, therefore, the provision at hand implies the further rule to the effect that the same tax-break is to be applied to such companies too. In both cases (a contrariis, a simili), a new unexpressed rule is added to the legal system.

  3. 3.

    Moreover, a lot of unexpressed rules are derived—deductively or not, this is not really important—either from explicit rules plus some theoretical assumption, or directly from a theoretical assumption alone.

I already gave some examples of it in the preceding section. Consider however some examples more.

  1. (a)

    According to the “classical” constitutional theory of the Enlightenment, the function of every constitution is limiting political powerFootnote 23; this view implies that constitutional rules are addressed (only) to the supreme state organs and in no way subject to judicial application. Nowadays, on the contrary, most constitutional lawyers think that the function of the constitution is (also or even essentially) moulding social relationships among citizensFootnote 24; from this view they draw the conclusion that constitutional rules should be directly applied by any judge in any controversy (what is called “Drittwirkung” in German jurisprudence).Footnote 25

  2. (b)

    Article 139 of the Italian Constitution prohibits whatever revision (even by means of constitutional amendment) of the “republican form” of the state. Most constitutional lawyers, however, assume that a republican state is, by definition, a democratic one, and conclude that no revision of the democratic form of the state is allowed. No need to say that this conclusion, whose only ground is a disputable juristic concept of “republic”, has the outstanding effect of excluding from constitutional amendment nearly the whole constitutional text.

  3. (c)

    The Court of Justice of the European Community assumes, on the one hand, that the European Community law and the law of the member states form a ­unified legal system and, on the other hand, that European law is superior to state law, and draws the conclusion that state legislation is invalid (or, at any rate, non-applicable) when incompatible with Community law.Footnote 26 No need to say that both assumptions have no textual counterparts in the EEC Treaty.

  4. (d)

    The Italian Constitutional court assumes, on the contrary, that the European Community law and the law of the member states are independent legal systems, and draws the conclusion that Community law cannot derogate or invalidate incompatible state legislation.Footnote 27 This assumption too has no textual basis in the Treaty.

Generally speaking, formulating unexpressed rules is often aimed at concretising principles. The concretisation of principles, in turn, is often a means to fill up real or supposed gaps in the law.Footnote 28

7.7 Concretising Principles

Framing unexpressed rules amounts to “apocryphal” legislation by interpreters. And, as a matter of fact, it constitutes the main and most significant part of legal scholars’ work. This is especially true as far as constitutional interpretation—or, rather, constitutional “construction”—is concerned.

It is a well known feature of most European constitutions of the twentieth century that they include a great deal of “principles”, i.e. provisions affected by a high degree of indeterminacy (open circumstances of application, defeasibility, etc.)—provisions, in particular, that because of their indeterminacy cannot be applied without previous “concretisation”.

On the one hand, principles, because of their peculiar form of indeterminacy, cannot be used as direct justifications of judicial decisions of individual cases. For example, the principle “Defence is an inviolable right at every stage and instance of legal proceedings” (article 24 of Italian Constitution) says nothing about the presence or absence of the advocate to the police interrogation of the accused person; to decide whether the advocate ought to be present or not, the principle must be “transformed” into a (relatively) precise rule.Footnote 29 The principle “National sovereignty belongs to the people” (article 3 of French Constitution) says nothing about the right to vote of immigrants from inside the European Union in the elections of city councils; to decide whether such immigrants are entitled to vote or not, one has to derive, from the principle, a definite rule.Footnote 30

On the other hand, in most cases the judicial review of legislation requires comparing (not two rules, but) a rule and a principle.Footnote 31 Rules and principles, however, are logically heterogeneous sentences. As a consequence, such a comparison is simply impossible without previous concretisation of the principle at stake. How to compare a statutory rule which does not provide the presence of the advocate to the police interrogation with the constitutional principle of the defence as an inviolable right? How to compare the principle of national sovereignty with a statute or a treaty entitling European immigrants to vote in the elections of city councils? Once more, principles need concretisation.

Concretising a principle means “extracting” from it one or more unexpressed rules. Such a concretisation amounts to an argument where the premises are the principle at hand coupled with one or more arbitrary “theoretical” assumptions. For example: “Defence is an inviolable right at every stage and instance of legal proceedings”; the police interrogation of the accused person is a part of the legal proceedings; hence the advocate ought to be present.Footnote 32

7.8 Production of Rules by Means of Rules

Generally speaking, legal scholarship amounts to shaping the legal system in two connected waysFootnote 33:

  1. 1.

    First, determining by means of adjudicative interpretation the meaning-contents of the enacted texts;

  2. 2.

    Second, producing (new) rules by means of (pre-existing) rules, i.e.—echoing a happy formula by J. L. Mackie—“inventing right and wrong”Footnote 34: more precisely, inventing rights, powers, obligations, and other “jural relations”.

In Bentham’s, Austin’s, and Kelsen’s view, law is a language—the set of sentences enacted by the lawgiving authorities—and “expository jurisprudence” is depicted as a second-order descriptive language whose object-language is the normative language of the law.Footnote 35 This view of the “science of law” is a normative model on which one can easily agree. But it cannot be considered as a reliable description of actual legal scholars’ practice.

In actual legal scholars’ language, at least three kinds of sentences can be distinguished:

  1. (a)

    “Normative propositions” (“Rechtssätze”, “propositions of law”, etc.), i.e. true or false sentences describing the law in force;

  2. (b)

    Adjudicative interpretive statements, which are not propositions at all, since they do not describe, but ascribe meaning;

  3. (c)

    Normative formulations, which do not describe anything at all, but settle new (unexpressed) rules.

There is no possible confusion between the revolving of the earth around the sun and the astronomical science which describes it, since the moving of planets is no language-entity (while astronomical science obviously is). As far as the relationship between legal scholarship and the law is concerned, on the contrary, such a confusion is possible and actually obtains. This is so since both law and legal scholarship are but languages. In other words, no clear-cut distinction can be established between the language of law and the language of lawyers—they are subject to a continuous osmotic process. Lawyers’ language does not “bear upon” the language of the law—rather, legal scholars do mould and continuously enrich their ­subject-­matter of study.

This amounts to say that interpretation and juristic construction are not the “legal science”—as academic lawyers usually claim—but a part of the law itself and therefore a part of the subject-matter of legal science. In other words, describing the law in force requires taking into account legal scholarship as a significant part of it.Footnote 36