Legal Interpretation, Conceptual Ethics, and Alternative Legal Concepts

Abstract

When legal theorists ask questions about legal interpretation—such as what it fundamentally is, what it aims at, or how it should work—they often do so in ways closely tethered to existing legal practice. For example: they try to understand how an activity legal actors (purportedly) already engage in should be done better, such as how judges can better learn about the content of the law. In this paper, I discuss a certain kind of “conceptual ethics” approach to thinking about legal interpretation, which is less tethered to existing legal practice (or the existing meaning of core pieces of legal terminology). The approach I explore asks questions about legal interpretation in a way that is tethered to what legal (or “legal‐ish”) concepts people should deploy, as part of arguments on behalf of engaging in legal (or “legal‐ish”) practices different from our current ones. In exploring this approach, I aim to help us better understand the landscape of philosophical issues about legal interpretation, including parts of it that I think have been underexplored.