Interpretation isn’t just Meaning! The Existential Function of Interpretation in International Law

by Duncan Hollis

Looking back at all the debates over whether the United States could have legal authority to use force in Syria, I was struck by the presence of two very different types of arguments about the Responsibility to Protect (R2P).  For some, the R2P questions were interpretative in nature — what did R2P mean (i.e., does it require Security Council authorization) and how does its meaning apply in the Syrian context?  Obviously, different interpretative methods and techniques could generate different answers to what R2P meant, and, with them, different outcomes for the Syrian intervention question. Many others, however, never made it to this interpretative stage.  For them, the R2P questions were existential — did it even exist within the corpus of international law in the first place?

Looking at R2P in Syria provides a paradigmatic example of how international legal interpretation can do more than simply explain what a legal concept “means”.  It shows that the interpretative project is not just an expository process but an existential one. The very act of interpreting validates the legal existence of that which is being interpreted. Interpretations of R2P with respect to the legality of a Syrian intervention necessarily accepted the existence of R2P within international law.  At the same time, deciding whether or not R2P exists itself constitutes a particular form of interpretative process, or what I call an existential interpretation.  I’ve written a paper about these existential aspects of international legal interpretation that’s now available on SSRN (I also presented it at this fabulous conference on interpretation in Cambridge).  Here’s the abstract:

For most international lawyers, interpretation involves acts giving meaning to a particular legal rule. Interpretative studies center largely on questions of method and technique – by what process should (or must) meaning be given to an international legal rule and how does a given meaning accord with the interpretative method employed. In recent years, increasing methodological awareness of interpretative theory has broadened – or, in the case of critical scholarship, challenged – the capacity of interpretation to give meaning to international law.

Notwithstanding the value in focusing on interpretative methods and techniques, the concept of interpretation they produce remains incomplete. International law’s interpretative processes are like an iceberg – the meaning arrived at by an interpreter is not simply a function of the method and technique employed (the visible tip) but rests on an array of earlier choices about what “exists” to be interpreted in the first place (the iceberg’s hidden, critical mass). A familiar example involves the question of what evidence counts as “State practice” for purposes of identifying customary international law. Interpreters who only count what States “do” may generate different content for a claimed rule than those who also consider what States “say” about the rule, even holding constant the method and technique employed. Similar existential questions arise throughout the international legal order. Before a treaty can be interpreted according to the 1969 Vienna Convention, for example, the interpreter must conclude the treaty actually exists. Indeed, interpretative choices lie at the core of international law’s sources doctrine, since what qualifies as international law (or not) can privilege or foreclose specific interpretative methods and outcomes.

This paper seeks to uncover the “existential function” of interpretation in international law. It explains how all interpretations have existential effects as they create, confirm, or deny the existence of the subject of interpretation. At the same time, I identify a particular structure of interpretative argument – what I call “existential interpretation” – by which interpreters ascertain the existence of their subjects. I review examples of this phenomenon in questions about the existence of interpretative authority, evidence, international law, and its sources.

Existential interpretations and the functions they serve have significant implications for international legal (a) discourse, (b) doctrine, and (c) theories of international law. Existential interpretations delineate the boundaries for interpretative discourse, narrowing it in cases of consensus on the existence of the interpreted subject, and broadening it in cases of dispute. Where interpretative resolutions of existential questions are possible, they may impact the content of international law doctrine, either directly or indirectly. And, where resolution is not possible, existential interpretations may operate as proxies for theoretical disagreement about the nature or purpose of international law (e.g., positivists may insist interpreters exclude from their toolbox the same soft law sources that naturalists insist require effectiveness as a matter of right). The paper concludes with a call for further study of existential interpretation given its importance to practice as well as its potential to provide a new lens for mapping the unity and fragmentation of the international legal order itself.

I’d welcome feedback if any of you find the paper is worth a read.

http://opiniojuris.org/2013/10/07/interpretation-isnt-just-meaning-existential-function-interpretation-international-law/

3 Responses

  1. This is a very thought-provoking and well written essay. It not only provides useful theoretical insights (the discussion of Cover’s jurispathic and jurisgenerative interpretations is particularly well-done; reference could also be made here to Koskenniemi’s concept of “bedrock” taken from Wittgenstein), but it also manages to bridge the gap between theory and (a wealth of) practice like few articles of its ilk do.
    I would fully agree that “every interpretation involves the creation, confirmation, or denial of the existence of that which is interpreted”. Indeed, for me, the most illustrative aspect of the essay is reflected in the last sentence: “International law exists as something worthy of our ongoing efforts to give it meaning.” If we dig deep enough, every act of interpretation in international law (or any legal system) involves existential interpretation of this very thing that we call “international law”. I would perhaps encourage more emphasis on the use of existential interpretation in questioning our own assumptions (or how these assumptions come to be) and not just its use in practice. 
    While I find the specific focus on existential interpretation provides useful insights in a very clear way, I question to what extent we can truly separate interpretation’s existential function from its essential and its creative functions. Every assertion of existence is assertion of a particular form of existence and an assertion that this existence should have some normative sway. As I have written (23 EJIL 97, at 110-111), “What we perceive to be institutions, organizations, disciplines, or schools of thought within international law (and even the whole of international law itself, not to mention its primary building blocks, states) are not singular, clearly delimited entities. They neither exist apart from other similar concepts nor possess immutable internal structures. Rather, they are perceptions that the rhizomatic network of human consciousness has developed such a dense web of interconnections and rigidity as to give the appearance of unity – of internal coherence and outward delimitation. … To perceive international law is to create it, to establish certain connections across the rhizome and to cut off others, to define its borders and its internal relations, in short to impose on the rhizome of human thought an arborescent unity” (citations omitted). 
    By reducing international legal argument and interpretation to a series of “yes/no” existential questions, I fear that we may limit the infinite range of possibilities that potentially exist. These concerns are indirectly addressed in the essay in the discussion of lessons for practice (pp. 38-40). I find this section particularly strong in that here the essay clearly focuses on interpretation as a social practice, whereas much of the prior discussion of existential interpretation gives the impression of interpretation as an individual activity. It may be a stylistic choice (the isolated focus on existential interpretation does bring particular clarity), but perhaps the social nature of interpretation could be woven in earlier.
    Again, an excellent essay, and I’m really impressed by how this ties what is often too abstract theory to a wealth of very concrete examples. Kudos
     

  2. David – thanks for your thoughtful comments on the piece.  I agree that there is a tremendous range of possibilities in interpretative dialogues.  My point is merely to foreground the existential aspects that have previously not been identified much, if at all, in interpretative discourse.  Your point about emphasizing the social practice in interpretation is well taken and I’m going to try and work it in more to the next draft of this piece.

  3. You’re very welcome. It’s a great piece already; a really illuminating read. I look forward to the next draft and will definitely recommend it to others.

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