In The Object of Interpretation, Professor Urbina offers a comprehensive exploration of this topic. He addresses the nature of the object of interpretation, the different senses of the term “object of interpretation”, the alternative candidates for objects of interpretation, and how to determine which should be the object in practice. The paper claims that there is no single correct object of legal interpretation. Text, lawmaking choice, practice, and order are suitable candidates. None of them are necessary objects of interpretation. Ultimately, the object of interpretation is what is treated as a precise source of law, namely, facts that are recognized as generating law. Which candidate is the object of interpretation in any given context is contingent on descriptive considerations on what is regularly treated as a legal source in that legal system and on normative considerations on what officials should treat as a legal source. In this sense, officials cannot presuppose what the object of interpretation is. They should ground what that object should be. Furthermore, in many instances, the object of interpretation is legally unsettled. When this is the case, legal interpreters must exercise discretion in choosing an object of interpretation. But they must also deliberate morally about whether to follow a legal settlement when there is one, and about which settlement they will help bring about when one is needed. Hence, the “‘correct’ object of interpretation is, then, a function of positive law and moral judgment”.
For his analysis, Professor Urbina understands a legal source as a “thing that contains or generates legal norms”, and legal interpretation as the activity of determining what legal norms are generated by legal sources. According to his point of view, a legal source is a fact that generates legal norms that either (i) has been issued according to the rules of the legal system; or (ii) that has been recognized as a legal source in legal practice by officials. In any of these cases, the legal system could recognize a source more or less “precisely”. Thus, it could recognize, for example, “What the Queen in Parliament enacts” as law or “The text that the Queen in Parliament enacts” as law. The latter recognition is at the level of precision of the object of interpretation. Thus, the law here settles the object of interpretation by sanctioning one of the possible alternatives. These two features can break a possible circularity problem, namely, that a legal source is a fact that can generate legal norms, and, at the same time, a legal norm is a determination grounded in a legal source.
Moreover, Professor Urbina conceptualizes the task of “determining the object of interpretation”. From his perspective, this task is twofold, namely, it requires attending to the legal sources that are recognized as law in a legal system and to practical reasons bearing on an interpreter’s choice of an approach to interpretation. Even when a legal system settles on an object of interpretation (“the text that the Queen in Parliament…”), individual legal interpreters still face a choice of either going along with this legal settlement or not. The law may provide a reason for the choice of object, but it need not be a conclusive one. In turn, the choices of legal interpreters may alter the legal settlement, and thus, through individual interpretations, the legal system may settle on a different object of interpretation—or on none. Thus, one can think of the “correct” object of interpretation in three—equally valid—senses. First, as legal correctness, that is, as what “corresponds to either what the legal system recognizes as a source of law in that legal system or is mandated by a legal rule”. Second, as practical and individual correctness. This is about what an interpreter should treat as the object of interpretation, and it depends on “the moral and prudential reasons bearing on that choice”. Third, as practical and systemic correctness, namely, what a legal system should recognize as a precise source of law, thus settling on an alternative on the object of interpretation.
Prof. Urbina’s contribution to the topic is both highly original and illuminating. It also opens a big field for future interpretation. How should officials undertake a process of choosing the object of interpretation? Should they always begin with the socially recognized text and then assess the relevance of lawmaking choice, practice, and order? Or should they proceed the other way around? Namely, should they begin with interpreting the practice, then order, lawmaking choices, and finally, the text? Furthermore, how to articulate descriptive and normative reasons? In case of conflict, what sort of reasons should prevail? Should officials operate with normative reasons in all cases or in cases of open-textured texts? All these questions can lead to deconstructing the field of choosing the object of interpretation to an uncharted territory of topoi. The value of Prof. Ubina’s article is to highlight the complexity of choosing the object of interpretation that, in the work of many other authors, remains hidden.
