19 Recanati utilise cette expression pour caractériser les thèses du contextualisme radical (François Recanati, Literalism and Contextualism: Some Varieties, in G. Preyer & G. Peter (eds.), Contextualism in Philosophy. Knowledge, Meaning and Truth, Oxford, Clarendon Press, 2005, p. 188-191). D’autres reconstructions très utiles sont celles de Marcelo Dascal, Contextualism, dans H. Parret, M. Sbisà & J. Verschueren (eds.), Possibilities and Limitation of Pragmatics, Amsterdam, Benjamins, 1981, 153-177; et Carla Bianchi, La dipendenza contestuale. Per una teoria pragmatica del significato, Napoli, Edizioni scientifiche italiane, 2001, 297–325. 6In the construction of my theory, I chose moderate contextualism as the semantic reference point.2 Now, it is important to clarify in this context that the adoption of this theory of meaning should not be considered without criticism as a mechanical operation of the transfer of this semantic theory into the theory of interpretation.
Moreover, in my book, in terms of the “acceptable level of adaptation”3, I qualify the objective towards which the “process of interweaving” between the two theories should be directed, suggesting that the transplantation of this semantic approach into the theory of legal interpretation is neither easy nor obvious. The law as set out in previous court decisions. Synonymous with precedent. Similar to the common law, which stems from tradition and judicial decisions. 4 Two earlier versions of my theory of interpretation, elaborated without the help of semantic contextualism and of which I knew nothing about the existence at the time, are contained in my two books Conoscenza giuridica e concetto di diritto positivo, Torino, Giappichelli, 1993, 289-331 (where I already speak of pragmatic theory of legal interpretation); and Il positivismo giuridico. Metodi, teorie e giudizi di valore, Turin, Giappichelli, 2004, 201-227. 36C to put it briefly, Poggi`s position in contextualism is not entirely clear. Admittedly, in deciding radical contextualism, it is not enough to limit oneself to claiming that there is no clear non-contextual meaning that is determined only by semantic rules, since meaning also depends on contextual assumptions.23 In this context, the thesis of a lack of clear non-contextual meaning applies to both types of contextualism.
3First of all, the concept of “context” is not sufficiently developed: a satisfactory configuration of the three dimensions in which the context develops is not given, and the relationship of mutual interaction between them is not shown. More precisely, the substantive context is statically shaped, also in contrast to the dynamic approach chosen by my theory, as if the only role of such a type of context in interpretative activity was to determine changes in the conventional meaning of expressions contained in legal sentences after changes in the substantive assumptions that are part of it. 28Poggi has different ideas about the possible analogies between conversational language and legal language:17 She believes that in ordinary language conversations, the purpose of the person receiving the communicative message is to understand the speaker`s intentions; The recipient therefore relies on the elements that belong to the context of the message statement. In the interpretation of the law, on the other hand, the context of the expression of the legal judgment (which concerns the legislator) is much less important; The interpreter is directly in front of the embassy, and the context to be preferred becomes almost exclusively that of the recipient (the lawyer or the judge), a context much less predictable and much more changing. Although Wood v. Capita is not pushing for a new law, it is an important decision as it seeks to reconcile previous authorities when it comes to contract interpretation. The Supreme Court`s approval of literal and contextual approaches provides English courts with great flexibility in deciding questions of interpretation. However, it remains to be seen whether, in practice, this decision will influence the recent tendency of courts to prefer a more literal approach. This may seem to lead to less certainty or predictability for the parties, particularly in cases where (as in Wood v. Capita) different approaches might lead to different conclusions.
However, the Supreme Court has made it clear that it considers that the guidelines on the interpretation of the treaty need to be clarified and, at least for the time being, that it does not see the need to propose a new reformulation. 16In these circumstances, I do not believe that any methodological requirement for judges to always respect the original conventional meaning of expressions contained in the legislature`s language can help to fill the “lack of certainty” that affects our legal system today. The conventional semantic framework does not sufficiently guarantee this principle. In any event, I do not believe, for my part, that the principle of legal certainty can be guaranteed at least by a stability of interpretation resulting from the rigidity of traditional meanings. Rather, I believe that this principle can be better guaranteed, certainly in a way that is always biased and balanced with other principles, in situations where there is a tendency towards uniformity of interpretation styles and evaluation orientations within a particular legal culture. 8In addition to the differences between the different versions, there is, in any case, a fundamental intuition of semantic contextualism that I have long maintained, even before becoming aware of the presence of contextualist positions in the contemporary philosophy of language:4 It is the one according to which the conventional linguistic meaning of expressions used in ordinary language (as well as in legal language), And it is precisely for this reason that the meanings of the sentences that contain it subdeterminate the complete meanings generated in a dynamic and sequential process by an interpretative activity that is always and necessarily contextually oriented. Context in its three dimensions (which we will discuss in more detail later) is always a necessary element of interpretation: there is no complete propositional meaning without the intervention of context. “The extent to which [textualism or contextualism] assists the judge in his or her task depends on the circumstances of the agreement or arrangement in question. Some agreements can be successfully interpreted mainly through text analysis, for example because of their sophistication and complexity and because they have been negotiated and prepared with the help of professionals. The correct interpretation of other contracts can be achieved by placing greater emphasis on the factual matrix, for example because of its informality, brevity or lack of qualified professional support.
However, negotiators of complex formal contracts often fail to arrive at a logical and coherent text, for example due to conflicting objectives of the parties, lack of communication, different editorial practices or deadlines that require compromises on the part of the parties to reach an agreement. There can therefore often be provisions in a detailed technically signed contract that are not clear, and the lawyer or judge can be particularly useful in interpreting these provisions if he takes into account the matrix of facts and the subject matter of similar provisions in contracts of the same nature… »; 30 Dworkin is a jurist who insists most strongly on this aspect, although unfortunately he does not do so with the necessary analytical rigour. Cf. Ronald Dworkin, A Matter of Principle, Cambridge Mass, Harvard University Press, 1985, page 147, page 162 1Andrej Kristan`s proposal to devote two issues of the journal Revus in its thematic section to a discussion of my theses on the theory of legal interpretation obviously pleases and I thank him, as do I to my colleagues (Kristan himself, Poggi and Vignolo) who contributed to this initiative.1 But the gratitude is twofold, as their essays highlighted the shortcomings and unsatisfactory aspects of my work. and therefore forced me to re-examine certain parts of it, both from the point of view of reconstruction (concrete cases of interpretation) and from the point of view of construction (with regard to the development of my own perspective). The context of a legal document is often examined to shed light on the intent of an ambiguous or obscure sentence or clause so that it can be interpreted as its author intended. A court decision in a previous case with facts and legal issues similar to a legal dispute currently being heard by a court. Judges “generally follow precedents,” that is, they apply the principles established in previous cases to rule on new cases that have similar facts and raise similar legal issues.