Electronic copy available at: http://ssrn.

com/abstract=2332187


Bojan Spai!, LLM
Faculty of Law, University of Belgrade
Emilio Betti's Legal Hermeneutics: Between a Theory of Legal
Interpretation and a Hermeneutical Theory of Law
1. Hermeneutics and theory of legal interpretation
In the domain of theory and philosophy of law it has always been a custom to reaffirm the
traditional divide between jusnaturalism and legal positivism. Ironically it seems even more so today
when on the meta-theoretical level the fields have become crowded with different, divergent and
particularistic approaches that have come to fore in the last five decades. It is also seldom that any of
these theoretical currents are consolidated in a way that could be considered a third alternative to the
traditional ones. One of those rare alternatives is most certainly the hermeneutical or interpretivist
approach pioneered in the Anglo-American world by Ronald Dworkin.
1
The peculiarity of the
hermeneutical alternative to positivism and jusnaturalism is characterized by a shift in the
perspective from which law is viewed and analyzed. In the hermeneutical perspective the issue at
stake is not a substantial one any more, it is rather methodological in that it doesnt give us solutions
to the problems in legal theory but rather provides us with the tools to approach those problems. In
this paper I shall argue that, considering the specific nature of a regional philosophy, such as the
philosophy of law today, there is reason to argue that the analysis of the roots of this modified meta-
theoretical map of contemporary philosophical study of law ought to encompass philosophical and

1
R. Dworkin, Law as Interpretation, Texas Law Review, Vol. 60, 1981-1982, 527-550; R. Dworkin, Law's Empire.
Cambridge, Mass., Belknap Press, 1986. In Italian literature in the last few decades there has been widespread discussion
of hermeneutical and analytical philosophy and theory of law M. Barberis, Il troppo poco e il quasi niente. Su
ermeneutica e filosofia analitica del diritto, in M. Jori (Ed.), Ermeneutica e filosofia analitica: Due concezioni del diritto a confronto,
Torino, Giappichelli, 1994, pp. 150-161; M. Jori, (Ed.), Ermeneutica e filosofia analitica, Torino, Giappichelli, 1994; F. Viola,
Critica dell' ermeneutica alla filosofia analitica Italiana del diritto, in M. Jori (Ed.), Ermeneutica e filosofia analitica: Due
concezioni del diritto a confronto, Torino, Giappichelli, 1994, pp. 64-104; G. Zaccaria, Tra Ermeneutica ed Analitica: dal
contrasto alla collaborazione. in M. Jori (Ed.), Ermeneutica e filosofia analitica: Due concezioni del diritto a confronto, Torino,
Giappichelli, 1994, pp. 105-147. In the Anglo-American legal circle Dworkins hermeneutics (along with the theory of
legal and literary interpretation of Stanley Fish) has been analyzed as an interpretivist account of understanding
according (or according to some authors interpretative universalism) D. M. Patterson, Law and truth, New York,
Oxford University Press, 1996, pp. 72-73.
Electronic copy available at: http://ssrn.com/abstract=2332187


methodological positions of certain authors after WWII that should, in my view, be taken into
consideration far more than is now the case.
As the third alternative developed from a well known, but often neglected part of legal
theory and philosophy, I shall try to sketch this development making a distinction between
hermeneutical theory and philosophy of law on one hand and theory of legal interpretation on the
other. To make things perfectly clear from the start we shall assume that 1) theories of legal interpretation
give descriptive or normative accounts of the understanding and interpretation of legal texts. 2)
Hermeneutical theories of law on the other hand are an account of the concept of law from the
perspective of hermeneutical philosophy; the main trait of the hermeneutical philosophy of law
being the idea that a certain conception of interpretation can lead us to the determination of key
concepts in a social practice that we call law (and eventually even lead us to the concept of law).
In Europe, after the disastrous Weltanschaung of the legal profession that Gustav Radbruh
(18781949) characterized as Gesetz ist Gesetz dictum (of legal positivism) emerged neo-positivism
and neo-jusnaturalism characterized by an inclination towards the examination of the nature of
things (Natur der Sache). In the fifties, these reinstated new approaches received forceful criticism
from the perspective of the renaissance of the Aristotelian practical philosophy, from a viewpoint
pioneered in the domain of rhetorics and topics by Theodor Viehweg (1907-1988), Cham Perelman
(1912 1984) and others.
2
The sixties brought another strong impulse to the new currents in the
legal-philosophical debates under the influence of one of the great and immensely influential books
of the second half of the XX century, Truth and Method by Hans Georg Gadamer.
3
With Gadamer a
tradition lost in the hallways of academic mainstream philosophy, known up to that moment mostly
as instrumental and merely technical, started to grow into a full blown philosophical approach that is
considered by some today as the philosophical "#$%! on the European continent.
4


2
Whose work is well known in the counties of Ex-Yugoslavia thanks to Jasminka Hasanbegovi!: J. Hasanbegovi!,
Topika i pravo: zna!aj obnove misli o topici za odre"enje prirode i osobenosti pravnog rasu"ivanja, Beograd, Vojnoizdava&ki zavod,
2005; J. Hasanbegovi!, Perelmanova pravna logika kao nova retorika, Beograd, Istra'iva&ko-izdava&ki centar SSO Srbije, 1988.
3
H. G. Gadamer, Truth and method, New York, Crossroad, 1989; H. G. Gadamer, Istina i metoda, Sarajevo, IP "Veselin
Masle(a", 1978; A. )ar&evi!, Hermeneutika kao filozofija, in H. G. Gadamer, Istina i metoda, Sarajevo, IP "Veselin
Masle(a", 1978, pp. 613-679.
4
G. Vattimo, Oltre l'interpretazione: il significato dell'ermeneutica per la filosofia, Roma, Laterza, 1994, p. 3.


For continental philosophers hermeneutics was always (in a way even before the definitive
coining of the term by Johann Martin Chladenius in the XVIII century), a theory of a practice of
interpretation in various regional humanistic disciplines such as philology, theology and most
importantly law.
5
Gadamers invitation, that was gladly adopted by German speaking jurists, was that
hermeneutics wasnt to be merely a normative theory of interpretation and understanding but a
descriptive philosophical account of mans relation to the world and to one another.
6
In stark
contrast with the hermeneutical tradition of writers such as Meier,
7
Ast,
8
Schleiermacher
9
and
Dilthey,
10
Gadamers philosophical hermeneutics aimed to be a strictly descriptive endeavor. As such
it wasn't (at least explicitly) meant to guide interpretative practice in any way but to simply ascertain
that the conditions of our understanding of the world (in Gadamers case especially the man-made
world of Geisteswissenchaften) were not entirely covered by the methods of natural sciences, and that
the humanities should reconsider their methodological orientation inspired by the natural sciences.
Being formulated as such, every reception of it in regional philosophies had to have a
profoundly anti-methodological view of the character of legal understanding. Such were in part the
elaborations of the legal consequences of philosophical hermeneutics in the field of law with a major
figure like Josef Esser and his Vorferstandiss und Methodenwahl.
11
Giuseppe Zaccaria, paraphrasing the
words of Ralf Dreier
12
emphasizes that this turn in German legal theory can be described with the

5
See: *. Gronden, Uvod u filozofsku hermeneutiku, Novi Sad, Akademska knjiga, 2010.
6
In recent years there have been attempts to convert Gadamers ontological hermeneutics in aid of a normative critique
of originalism a normative theory of (mainly) constitutional interpretation that has evolved into the idea that the
original public meaning is the main goal of the interpretation of the American constitution: J. Valauri, As Time Goes by:
Hermeneutics and Originalism. Social Science Research Network Working Paper Series, 2010.
7
G. F. Meier, Versuch einer allgemeinen Auslegungskunst, 1757.
8
F. Ast, Grundlinien der Gramatik, Hermeneutik und Kritik, Landshut, Jos. Thomann, 1808. An excellent study about pre-
Schleiermacherian philological hermeneutics was written by Peter Szondi P. Szondi, Introduction to Literary Hermeneutics.
Cambridge, Cambridge University Press, 1995.
9
F. Schleiermacher, Hermeneutik und Kritik: mit besonderer Beziehung auf das neue Testament, Berlin, Reimer, 1838.
10
W. Dilthey, Hermeneutics and the study of history (R. A. Makkreel & F. Rodi Eds.), Princeton, Princeton University Press,
1996.
11
J. Esser, Vorversta!ndnis und Methodenwahl in der Rechtsfindung; Rationalita!tsgarantien der richterlichen Entscheidungspraxis.
Frankfurt am Main, Athena!um Verlag, 1970.
12
R. Dreier, Recht - Moral - Ideologie. Studien zur Rechtstheorie. Frankfurt am Maine, Suhrkamp, 1981, p. 17.


words: The theory of law is dead, long live methodology of law.
13
It could be that these words give
a good picture of the shift in perspective for most of the theories of law that started emerging, but in
the domain of hermeneutics, they were fundamentally flawed. If methodological endeavors result
almost without exception in normative propositions, Gadamer and the legal theory inspired by his
work have deeply anti-methodological and therefore anti-normative roots.
Drawing inspiration from philological hermeneutics, but also referring to the philosophical
hermeneutics of Gadamer,
14
Ronald Dworkin formulated his own alternative to the analytically
inspired legal positivism sketched in Herbert Harts seminal work The Concept of Law.
15
Dworkin was
successful in elaborating his theory by introducing, as the German jurists did, not only a theory of
legal interpretation but also a hermeneutical theory of law that challenged orthodox analytically
inspired positivist approaches. This hermeneutical turn in the US came to be known as the
interpretivist theory of law or interpretative universalism - its main characteristic being that all
understanding is a matter of interpretation and that the understanding of a social practice (law for
example) is a matter of imposing an interpretation to that practice.
16
In his early work, Dworkin
emphasized the fact that a fruitful parallel can be drawn between legal interpretation and literary
interpretation by using the metaphor of a chain-novel,
17
sketching almost exclusively a theory of
legal interpretation based on a certain understanding of legal rules, legal principles and legal
tradition. In Dworkins later work a theory of legal interpretation becomes not only a part of a
theory of law but its necessary element:
[L]egal reasoning is an exercise in constructive interpretation, that our law consists in the
best justification of our legal practices as a whole, that it consists in the narrative story that
makes of these practices the best they can be.
18

Now, Dworkins crucial insight is profoundly hermeneutical considering the fact that
interpretation not only determines what law is in a particular case, but is also inextricably tied to

13
G. Zaccaria, L'arte dell'interpretazione. Saggi sull'ermeneutica giuridica contemporanea. Padova, CEDAM, 1990, p. 3.
14
Dworkin mentions Gadamer at least three times in his Empire of Law with the highest of praise: Dworkin, 1986, pp. 55,
62, 420.
15
H. L. A. Hart, The Concept of Law, New York, Oxford University Press, 1994.
16
Patterson 1996, pp. 72-73.
17
Dworkin 1981-1982, pp. 527-550.
18
Dworkin 1986, p. vii.


what the law (to put it precisely what a law) is, i.e. to put it in traditional terms interpretation is
crucial for the determination of the nature of law.
19
In the 80 the analysis of the relation between
hermeneutics and Anglo-American legal literature was almost commonplace, even to the point that
certain authors referred explicitly to Dworkins work as hermeneutics, coming to the conclusion
that Dworkin's law as integrity model of legal reasoning is a paradigm case of philosophical
hermeneutics in action,
20
having Gadamer in mind. Nowadays the situation has changed a lot with a
slight but important shift that theories of legal interpretation made in the 80s. As the interest of
legal theorists increasingly focused on realist and non-realist theories of meaning, the relation
between hermeneutics and the theory of interpretation was lost for American jurisprudence,
surviving only in the works of authors like John Valauri, Gregory Leyh and Francis Mootz.
21

However, their hermeneutical perspective was always to a significant degree dependent on Gadamer,
whose intention was pronouncedly descriptive and nonanalytic and has gained little prominence in
the predominantly normative debates in legal hermeneutics.
In this way a dichotomy between analytical and hermeneutical philosophy and theory of law
was sketched as a crucial meta-theoretical distinction, despite the fact that this debate was
formulated in newer terms in the US. However, this divide, explicitly formulated in these terms and
fully theoretically elaborated, grew strong in certain legal cultures such as the Italian. The analytical
perspective was elaborated in the 70 Norberto Bobio
22
and carried forward by Giovani Tarello and
the Genoa school of legal realism with Ricardo Guastini, Pierluigi Chiassoni and Paolo
Comanducci.
23
The other hermeneutical strand in Italian jurisprudential thought, maintaining that an
adequate answer to jurisprudential problems can be achieved through a hermeneutical analysis of

19
Dworkins theory of law, however, deviates in part from the anti-metaphysical tradition of hermeneutics that was in
part adopted by American neopragmatism. Interpretivism encompasses in part the perspectivist claim that all knowledge
is perspective related. His almost angry response to the claim of Richard Rorty that his theory is in essence pragmatist
can be found in Dworkins Justice in Robes: R. Dworkin, Justice in robes. Cambridge, Belknap Press, 2006, pp. 36-48.
20
G. Leyh, Dworkin's Hermeneutics, Mercer Law Review, Vol. 39, 1987-1988, pp. 852.
21
Leyh 1987-1988, pp. 851-866; F. J. Mootz, Ugly American Hermeneutics, Nevada Law Journal, Vol. 10, summer, 2010,
pp. 587-606; J. Valauri, 2010.
22
N. Bobbio, Scienza del diritto e analisi del linguaggio, in U. Scarpelli (Ed.), Diritto e analisi del linguaggio. Milano,
Comunit, 1976.
23
Viola 1994, pp. 64-101; Zaccaria 1994, pp. 105-147.


legal problems, was developed by Francesco Viola and Giuseppe Zaccaria.
24
In my view, this
important distinction can aid us better in the meta-theoretical analysis of contemporary
jurisprudence than the usual dichotomies between legal positivism and natural law theory, and I shall
proceed with explaining the reasons behind my attempt to insert the continental hermeneutical
tradition and the Anglo-American interpretative tradition into the conversation.
2. Bettis legal hermeneutics and the elements of a hermeneutical philosophy of law
2.1. Legal hermeneutics as a part of a general theory of interpretation
More than 15 years before H. G. Gadamer published his revolutionary work, an Italian jurist mainly
interested in roman private law wrote a piece entitled The Civilistic Categories of Interpretation and held a
course on legal interpretation in which he elaborated his views on the subject.
25
In 1955 that same
jurist published one of the most important works in general hermeneutics of the XX century entitled
The General Theory of Interpretation.
26
In doing so, Emilio Betti, in the forties and fifties, not only
elaborated a methodology of legal interpretation but also incorporated it in a general hermeneutics,
giving it a philosophical, i.e. epistemological and even ontological background. Bettis main intention
was not to put forward an alternative to legal positivism (analytical in the case of Herbert Hart or
neo-Kantian in the case of Hans Kelsen) and jusnaturalism, but it can be argued that in his work are
the elements of an alternative which could be seen as the building blocks of a hermeneutical or
interpretivist approach to law.
2.2. Objectivity and cannons of legal hermeneutics
Unlike Gadamers philosophical hermeneutics, Bettis approach to interpretation and
understanding was mainly normative. That is not to say that there are no philosophical (ontological

24
F. Viola, Ermeneutica e diritto. Mutamenti nei paradigmi tradizionali della scienca giuridica, in G. Nicolaci (Ed.), La
controversia ermeneutica, Milano, Jaca Book, 1989, pp. 61-81; G. Zaccaria, L'arte dell'interpretazione. Saggi sull'ermeneutica giuridica
contemporanea. Padova: CEDAM, 1990.
25
E. Betti, Le categorie civilistiche dell'interpretazione, in G. Crif (Ed.), Interpretazione della legge e degli atti giuridici: teoria
generale e dogmatica, Milano, Giuffr, 1971, pp. 4-56.
26
E. Betti, Teoria generale dell'interpretazione, Vol. 1, Milano, Giuffr, 1990a; E. Betti, Teoria generale dell'interpretazione, Vol. 2,
Milano, Giuffr, 1990b. To put things into perspective, hermeneutics was still such an unpopular term that even half a
decade later Gadamers publisher insisted that he removed the word from the subtitle of Truth and Method. Betti's work,
despite its importance as well as his own efforts, stayed in the dark out of which it was at least partially taken out after
Gadamers polemics with some of his central thesis.


or descriptive) elements in it; rather, in his work Betti tried to normatively cover the field of
interpretation drawing inspiration from a long tradition of theorizing about hermeneutics as a
general theory of interpretation that gives an account of understanding and interpretation of
regional: philological, theological and legal interpretative practices. This entire tradition was
characterized in the early 80s as methodological hermeneutics by Joseph Bleicher.
27

The most important idea behind Bettis hermeneutics was that a theory of interpretation
should provide us with a set of methodological rules that could guide interpretative endeavors
toward understanding, making them objective.
28
In the field of interpretation, objectivity for him
mainly meant that sensus non est infferendus, sed efferendus, i.e. that the meaning of a representative form
(any objectivation of spirit that caries a meaning; primarily a text but also an action under certain
circumstances, a narrative and a symbol) is not to be understood in terms of the author or
interpreters intentions or subjective ideas of the how the text should be used but primarily in terms
of the meaning or sense that is contained in the text itself.
29

Gadamer, it is very well known, tried in his work to restore the old lost unity of the
hermeneutical problem by describing the work of a literary critic, theologian or jurist as
fundamentally and deeply similar in the sense that they in a way always conduct the work of
application when interpreting texts assimilating them to a contemporary horizon of meaning. Betti
thought of this as fundamentally flawed; regional traditions within hermeneutics were to be, in his
view, respected and reaffirmed in a distinction between recognitive, reproductive and normative
interpretation.
30
The practice of legal interpretation, quite understandably, took its place in the
domain of normative hermeneutics in which the interpreter tries to reach the maxims of conduct or
decision by interpreting a objectivation of spirit, mainly a legal, theological text, or human behavior.
In the domain of theory of legal interpretation, in the sense that we described this discipline earlier,
Betti tried to situate legal hermeneutics in a constellation of general hermeneutics and to provide

27
J. Bleicher, Contemporary hermeneutics: hermeneutics as method, philosophy, and critique: Routledge & Kegan Paul, 1980.
28
Betti 1990a, p. 190.
29
A. Argiroffi, Valori, prassi, ermeneutica: Emilio Betti a confronto con Nikolai Hartmann e Hans Georg Gadamer. Torino, G.
Giappichelli, 1994, p. 206. A grave misunderstanding of Betti in the Anglo-American literature, steaming from the lack
of translations of his work in English can be found in A Dictionary of Legal Theory by Brian Bix: B. Bix, A Dictionary of
Legal Theory, Oxford, Oxford University Press, 1994. Bix practically classifies Betti as a originalist which couldnt be
farther from the truth.
30
Betti 1990a, p. 347.


methodological guidelines that could guide the interpreter towards objectivity, or at least keep him
from providing nonobjective interpretations.
31
The explanation of these guidelines could prove
crucial to ascertaining whether there is a hermeneutical theory or philosophy of law in Bettis work,
that are usually considered to be the product of later decades of legal theorizing. In order to do this,
Ill compare his account of interpretative methodology with a recent account put forward by legal
thinkers that subscribe to a specific account of legal (and in particular constitutional) interpretation
called originalism.
2.3. (Only) Four Cannons of Legal Interpretation
2.3.1. Contemporary iterations of the cannons of interpretation
In a recent book by Antonin Scalia and Bryan A. Garner the previously mentioned specific
problem of theory of interpretation has reemerged. It is in fact the problem of canons or maxims
that constrain interpretation, the possibility of their formulation and effectiveness. Their attempt to
frame the above mentioned is, in their own words, the first modern attempt, certainly in a century,
to collect and arrange only the valid canons (perhaps only a third of the possible candidates) and to
show how and why they apply to proper legal interpretation
32
In his review Richard Posner writes:
A problem that undermines their entire approach is the authors lack of a consistent
commitment to textual originalism. They endorse fifty-seven canons of construction, or
interpretive principles, and in their variety and frequent ambiguity these canons provide
them with all the room needed to generate the outcome that favors Justice Scalias strongly
felt views on such matters as abortion, homosexuality, illegal immigration, states rights, the
death penalty, and guns
33


31
The objectivity of interpretation and the problem of achieving it through canons becomes a problem for Betti after
the discussion with Gadamer. In early works he contended that canons could lead us to a positive outcome of
interpretation in terms of objectivity. In later works he mostly ascribed a critical or negative role to canons he started
regarding them as tool for avoiding wrong interpretations: E. Betti, Allgemeine Auslegungslehre als Methodik der
Geisteswissenschaften, Tu!bingen, Mohr, 1967, p. 217; Betti 1990b, p. 999.
32
A. Scalia, B. A. Garner, Reading Law: The Interpretation of Legal Texts, New York, Thomson West, 2012.
33
R. A. Posner, The Incoherence of Antonin Scalia, New Republic,
http://www.newrepublic.com/article/magazine/books-and-arts/106441/scalia-garner-reading-the-law-textual-
originalism , 2012. The argument of course goes both ways as I shall show in the case of Emilio Betti. Every formulation
of canons can be used to support competing political views.


The looseness of the canons stated in the book are for Posner a deviation from textual
originalism, as they cannot lead us to a consistent ruling on some of the key issues in constitutional
adjudication. More specifically, they cannot lead to a decision that is impartial when it comes to
competing political views on the matters settled by the constitution. Stanley Fish, one of the
prominent participants in the debates on interpretation in the 80s, tries to explain what Scalia and
Garner make of the canons and their role in interpretation:
What is a canon? Scalia and Garner are careful to say that canons are not rules in any
strict sense canons do not direct those who follow them to specific actions in the
manner of rules like no smoking or no pets allowed. The canons, the authors say, are
background principles of assumed legislative intent. They get their sense and their rationale
from the enterprise in which they function, and they might be inapplicable or out of place in
another enterprise.
34

Fish points out that canons are in a sense regional, that they are construed to be used in a
specific, legal context which renders them practically useless in other areas of interpretation.
According to him, Scalia and Garner remain confined to their own field of interest within their own
professed theory of legal interpretation, which is a form of textualism evolved to incorporate
internationalist elements.
In this part of the article Ill try to make three points regarding the above mentioned book
and its main ideas. 1) The first point is rather trivial. It concerns the fact that there have been
conceptions of canons of interpretation and that Reading Law isnt quite as revolutionary as the
authors portray it to be. 2) Secondly, and in close relation to the first point, Ill show that the idea of
putting normative constrains on legal interpretation by resorting to canons isnt in itself textualist or
originalist but can be (and has been) linked to intentionalist and purposivist approaches. 3) Finally,
Ill argue that the canons themselves cant lead us to the determination of the meaning of legal texts,
even less to one right answer to every legal question. If they are to be useful in the process of
understanding what the law is in a particular case, their role has to be more modest.
In spite of its triviality I will devote most of this exposition to the first point, I hope for
good reasons. Tackling the idea that Scalia and Garner are the first to formulate canons of (legal)

34
S. Fish, Intentions and the Canons of Legal Interpretation. The New York Times.
http://opinionator.blogs.nytimes.com/2012/07/16/intention-and-the-canons-of-legal-interpretation/ , 2012.


interpretation in our time from the perspective of theoretical jurisprudence on the European
continent is a rather easy task. Despite the fact that their claim relates mainly to the English speaking
world it also contains an explicit critique of the Anglo-American legal education for not emphasizing
enough the interpretation of legislative texts. By doing so, the authors come close to continental
theoretical and practical jurisprudence that in its classic form relied heavily on statutes and
constitutions as an object of legal reasoning. And exactly from this viewpoint, the above mentioned
claim sounds plain wrong. Neither the reviewers nor the authors of the book mention or refer to
Emilio Betti. One of the main points of Bettis account of interpretation and understanding is
exactly one of the main points of the work by Scalia and Garner - the interpretative process is and
should be a process structured by certain criteria or maxims or even rules in a broad sense of this
word. I shall try to sketch his account of general canons of interpretation in order to show that some
of the main points of Reading Law regarding the canons of interpretation, mainly the idea of their
connection with the textualist version of the one right answer thesis and fidelity to the text of the
law, are misleading at best.
2.3.2. Bettis canons of interpretation
Emilio Betti was not a textualist in the sense that in the dichotomy of legislative
promulgation - legislative intention he opted for the first one, nor was he a intentionalist in the sense
that he strived to ascertain the actual intention of the legislature.
35
The idea that the law consists
only of words promulgated by legislature was foreign to him:
It is an illusion to think that codified rules do not have lacunas and that the living and valid
law is that what is only written in a codification; it is a big mistake to believe that law can be
immobilized and that his dynamics can be paralyzed by formalism in regards of his
application.
36

As I have mentioned, unlike Scalia and Garner and despite being a jurist, Betti didn't confine
himself to the analysis of the process of legal interpretation but has tried to frame canons that are
applicable in all of the major regional hermeneutics. The canons are thus not formulated in Bettis
theory of legal interpretation but in his general theory of interpretation, which not only involves
interpretation in its normative function (legal, theological and psychological hermeneutics), but also

35
A. Marmor, Textualism in Context. Social Science Research Network Working Paper Series, 2012, p. 2.
36
E. Betti, Interpretazione della legge e degli atti giuridici, Milano, Giuffr, 1971a, p. 96.


interpretation in its recognitive (literary and historical hermeneutics) and reproductive function
(dramatical hermeneutics). In all of these areas the dialectics of the interpretative process revolves
around two antinomic poles: a subjective one (the actuality of the subject) and an objective one (the
alterity of the object). Understanding, which is related to interpretation as its result, occurs within
this relation.
The process of interpretation itself is not simply vague and without guidelines. In the
tradition of regional hermeneutics Betti identifies certain maxims, some pertaining to the subject and
some pertaining to the object of interpretation, that guarantee a right epistemological positioning
of the interpreter and whose recognition warrants the directedness of the cognitive procedure in
question.
37
Already in 1948, in the mentioned introductory lecture about legal interpretation, Betti
identifies the four cannons of hermeneutics in the tradition of civil law,
38
making legal interpretation
central to his hermeneutics.
39
In concordance with the dynamics of the interpretative process Betti
locates two canons on its subjective side and two on its objective side.
2.3.3. The canon of hermeneutical autonomy
The first canon on the objective side - the canon of hermeneutical autonomy - means
primarily that the text has to be understood in its autonomy, in accordance to the law by which it
was made; therefore, it has to be evaluated from the perspective of its internal necessity, coherence
and rationality.
40
It dictates that the text has to be read in its own sense and by its own internal
logic, disregarding any external goals of the interpreter (his own interests for example) that can be
achieved by a certain interpretation. A text is a manifestation of a spirit (a will, a subject) that is
foreign to the interpreter, and it has to be understood by understanding the manifestation of that
spirit, without free ascription of meaning. In more recent hermeneutics this cannon is best expressed
in the words sensus non est inferendus, sed efferendus, which is to say that sense cannot be arbitrarily
ascribed to the text but has to be derived from the text itself, from its own mode of being,

37
Betti 1990b, p. 304.
38
E. Betti, Le categorie civilistiche dell'interpretazione, in G. Crif (Ed.), Interpretazione della legge e degli atti giuridici: teoria
generale e dogmatica, Milano: Giuffr, 1971b, pp. 4-56.
39
In a completely different manner Gadamer took legal hermeneutics as exemplary when it comes to building a general
hermeneutical philosophy, having in mind one of its crucial aspects application: Gadamer, 1989, p. 305.
40
Betti 1971a, p. 14; Betti 1990b, pp. 305-306.


measured by its own measure.
41
The first canon can thus be expressed by saying that neither may
the interpreter take into consideration only the so called plain meaning of the word, nor can he can
ascribe to the text an arbitrary meaning.
42
In other words, the distance (which is a key concept here)
must be kept between the interpreter and the text in regards to the subjective interests, prejudice and
uses that the interpreterandum could have for the subject of interpretation. It is necessary to let the
thing appear to us the way it is says Betti following the father of phenomenology Edmund Huserl.
43

From the perspective of todays analytical approaches to interpretation this canon mostly
affirms a semantic and syntax-oriented approach. More importantly, it also incorporates what today
would be called the pragmatic aspect of language that, according to some authors, has relevance in
the legal context.
44
Bettis insistence on the autonomy of the object of interpretation is not
adherence to a textualist or plain meaning approach, but rather takes into consideration the meaning
of the text as a product of an author, context, and implied content. Also, in this canon a specific
kind of legal objectivity is postulated in the concept of methodological and ontological distance
between the text and the interpreter, which is quite different in exposition and content than todays
dominant conceptions of objectivity.
45

2.3.4. The canon of totality and coherence
The second cannon on the side alterity (or objectivity) of the text points to the correlation
that exists between the parts of the text and its entirety; explication of these relations is in fact the
necessary condition for the determination of meaning (in recent theory of interpretation this is
simplistically discussed as the importance of context; in philosophical hermeneutics it has
traditionally been called the problem, or the cannon of the hermeneutical circle).
46
Betti formulates
the canon in this way:

41
Betti 1990b, p. 305.
42
T. Griffero, Interpretare: la teoria di Emilio Betti e il suo contest, Torino, Rosenberg & Sellier, 1988, p. 128.
43
C. Danani, La questione dell' ogetivit nell' ermeneutica di Emilio Betti. Milano, Universit Cattolica, 1998, pp. 134-135.
44
A. Marmor, The Pragmatics of Legal Language, Ratio Iuris, Vol. 21, Issue 4, pp. 423-452.
45
M. H. Kramer, Objectivity and the Rule of Law, Cambridge, Cambridge University Press, 2007; N. Stavropoulos, Objectivity
in law, New York: Clarendon Press, 1996; M. S. Moore, Natural Law Theory of Interpretation. California Law Review, Vol.
58, pp. 277-397; Patterson, Ibidem.
46
Betti 1971a, pp. 15-16. This issue has recently been discussed by on of the most prominent theorists of legal
interpretation in the Anglo-American world Andrei Marmor. Having analyzed the semantics and syntax of legal


The meaning, intensity and lineatures of a word can not be understood except in the
context in which the word was uttered; likewise the importance and value of a proposition
can not be understood but within the reciprocal relation and meaningful concatenation of
discourse to which it belongs [concatenazione significativa].
47

By summing up all the levels on which this canon operates we can say that a) in the semantic
and syntactical sense it involves the entirety of language in which a discourse is located, b) the
entirety of the psychological life of the author of the text and c) the sum of the spirituality (or
cultural and socio-historical background) to which a text belongs.
48

In his formulation of this cannon Betti is also skeptical of accounts that equate the
understanding of speech with the understanding of written text which has become quite common in
recent theories of interpretation. For him the difference between a text and a discourse is not only
the difference between "hearing and reading; it is born from a different reciprocal position in which
in a conversation the interlocutor finds himself, and in which a reader find himself in the relation
with the author. The author and the reader do not talk to each other, nor they write to each other;
the communicative process revolves in an entirely different way. The author formulates the thought
for his own sake, disregarding the psychological reactions go the reader; the reader on his side reads
for his own sake, disregarding the psychological context that is important in the regular discourse.
The written discourse is something that establishes a strict distance between an author and a reader -
at least in the beginning the reader is confined to what is written, to the texture of dicers. It is a
product of fixation and condensation, that due to its stable and tramandable character gives to the
author the position of superiority that is far beyond the one possible in the spoken discourse
between the one who speaks and the one who listens."
49


language in his Interpretation and Legal Theory (Marmor 2005), in the article The Pragmatics of Legal Language Marmor
emphasizes what he (following Scott Soames) calls the pragmatic enrichment of the content of legal communication.
The analysis of the pragmatics of legal language involve two basic ideas. The first refers to the role of the context in
understanding and the second involves implied content (Marmor 2008, pp. 423-424). In older hermeneutics, especially
philosophical, the canon is closely related to the problem of the hermeneutical circle which is a problem way beyond
the reach of this expose, and strongly related to the continental tradition of theory of interpretation.
47
Betti 1990a, p. 310.
48
Betti 1990a, pp. 313-314.
49
Betti 1990a, p. 365. The possibility of differences between pragmatic enrichment of oral and written discourse
cannot be discussed in detail in this paper.


2.3.5. Canon of the actuality of understanding
The first two canons pertain to the objective side of interpretation. They establish the object
of interpretation in its autonomy, alterity and within a totality of spiritual manifestations in a specific
cultural context and epoch. This alterity of the object, the impossibility of fully grasping the meaning
of the text is especially significant for Betti, because it emphasizes the distance that can never fully
be crossed between the interpreter and the text, making the text always partially dependent on the
interpreting subject and his position.
50
It is therefore necessary to affirm the dependence of
interpretation on the interpreter, his subjective mental categories and live spirituality that are
necessary prerequisites of understanding.
51

The first canon on the side of the subject of interpretation envisages the calling of the
interpreter to reconstruct the path of the creative process, and in that way to make alive and in the
actuality of his own thinking reconstruct a life experience that belongs to the past; i.e. to understand
the text as a fact of his own experience by means of a kind of transposition in the circle of his own
spirituality by means of recognition and reconstruction.
52
a) Precisely in this actuality of
understanding Betti finds that initial impulse to understand something foreign and distant: The
origin and the starting impulse of the interpretative activity lay in a specific interest for
understanding, in a bond that connects the manifestations of other subjects with the actual
manifestation of our spirit. b) More importantly this canon postulates that we cannot get rid of our
own subjectivity in interpretation, it doesnt impair understanding but is itself the condition of the
possibility of interpretation (to put things in Kantian terms). The interpreter has to establish the
meaning of a text, and that cannot be done without the subjective possibility of intellectual
relatedness to the text and our mode of conceptualizing and representing it.
53

2.3.6. The canon of the hermeneutic correspondence and consonance (the canon of
adequacy of understanding)
The fourth canon that Betti identifies dictates to the interpreter the obligation to put his own
actuality in a relation of full belonging and harmony with the calling or impulse that arrives from the

50
Betti 1971b, p. 23.
51
Danani 1998, p. 142.
52
Betti 1971b, p. 21; Betti 1990a, p. 314.
53
Betti 1990a, p. 316.


text.
54
It is actually an ethical and theoretical position, a spiritual openness that has to be assumed in
order to reach congeniality with the object. The correspondence doesn't mean mathematical equality
or identity of between the result of interpretation and its object . Congeniality means a constant
reaffirmation and renovation of interpretation. In the negative sense, this canon means that the
subject of interpretation has to constantly make explicit his own prejudices, wishes and interests; in
the positive sense it dictates that the interpreters conduct has to be adequate to the specific character
of the object of interpretation.
55
The canon of correspondence or adequacy therefore allows for
differentiation between interpretations in a recognitive, representative or normative function, as the
main intention with which we approach the text differs from one hermeneutical discipline to
another. It also allows for the possibility of regional hermeneutics to formulate context specific
canons and principles of interpretation. Scalia and Garner did exactly that - they identified the
interpretative canons that are, in their view, taken into consideration in the interpretation of legal
and only legal texts.
In the first iteration of his views Bettis definition of canons can be seen, as one critic
remarked, as the establishment of principles that should guarantee the positive outcome of every
hermeneutical effort in order to establish the epistemological status of interpretation as equal to
other modes of cognitive activity.
56
But Betti was always careful not to define the cannons in such a
way. He was, even in his early work, way more eager to speak about them as a kind of practical
guidelines, even more as a kind of Moral des Denkens (Herbart) or intellektuelles Gewissen
(Nietzsche).
57
The canons were modeled as a sort of spiritual inclination of the interpreter, rather
than as rigid scientific rules or strict logical reasoning that must be followed in order to reach
understanding of a text (or any objectivation of spirit or representative form in Bettis terminology).
Nevertheless, in the first version of his formulation Betti regarded the four canons of interpretation
primarily as methodological guidelines that should lead to a correct interpretation. In a debate quite
important for hermeneutics on the European continent (that was, thanks to Edmund Hirsch and

54
Betti 1971b, p. 25; Betti 1990a, p. 320.
55
Betti 1990a, p. 318
56
F. Bianco, Ogettivita dellinterpretazione e dimensioni del comprendere Unanalisi critica dellermeneutica di Emilio
Betti, Quaderni fiorentini per la storia del pensiero giuridico modern, Vol. 7, 1978, p. 51.
57
Betti 1990a, p. 304


Richard Palmer, brought also in US)
58
between him and Hans Georg Gadamer he reiterated his
views by stating that the main purpose of canons was not to establish rules for correct
understanding, but to avoid incorrect ones.
59

2.3.7. Contemporary dilemmas
Returning to the new publication that will most certainly serve as a bastion of textualism, we
find two explicit main points that the authors wanted to make. 1) The first is the claim that words
have definite meanings which is strongly related to the notion that interpretative questions have a
right answer. 2) The second states that canons are (intrinsically) interpretative tools that support
fidelity to text as a general position of a judge. In a way, the authors imply that interpretative canons
are instruments of textualism and their account of them is an attempt (certainly not the first, as I
have shown) to present the canons as tools for consistent and text-oriented adjudication aimed at
judges committed to textual fidelity.
From a Bettian perspective the first idea cant be backed up by an account of interpretative
canons. Normative instructions, regardless of the form they acquire, can never fully eliminate the
distance between a text and an interpreter. The meaning of words, propositions and texts is always,
even with all the normative constraints, at least partially determined by the subject of interpretation,
given the fact that meaning emerges in a relation between the interpreters actuality and a texts
objectivity. As we have seen in his formulation of the canon of totality, in order to understand a text
we always have to resort not only to semantic context (evidence how a reasonable person uses
words) but also to what certain contemporary authors call the policy context (evidence about the
way a reasonable person uses words).
60
The idea that normative constraints determine
interpretation of normative propositions puts us in a vicious circle and cannot lead to the notion of
one right answer to every legal issue. Furthermore, Betti never asserts that interpretative questions
are settled in a final manner because of at least one intrinsic property of the language itself - what he
called its elitic character, the fact that within a text there is always a surplus of meaning compared to
the meaning of words; on Bettis account, not only legal language, but language itself always implies

58
R. Palmer, Hermeneutics: Interpretation Theory in Schleiermacher, Dilthey, Heidegger and Gadamer. Evanston, Northwestern
University Press, 1969; E. D. Hirsch, Validity in Interpretation, Yale University Press, 1974.
59
Betti 1967, p. 217; Betti 1990b, p. 999.
60
J. F. Manning, What Divides Textualists From Purposivists? Columbia Law Review, Vol. 106, 2006, p. 70.


more than it says.
61
This characteristic of language, along with the distance between an interpreter
and a text, makes the interpretative situation open and dynamic in a way that cannot be completely
removed even by resorting to canons of interpretation.
As for the second point, Ive already mentioned that Betti was always far from being a
textualist or originalist. In fact, he was one of the most important legal theorists that affirmed the
importance of evolutionary interpretation, the idea that the meaning of legal texts is to be
understood from the perspective of the interpreting subject, i.e. from the perspective of his own
socio-historical background. The position reached by Scalia and Garner is a textualism that amounts
at most to the claim that when we interpret a text, the text itself is what we should refer to (no
theory of interpretation has ever questioned this), having already incorporated elements from all the
other interpretative approaches such as intention, context and, to a lesser degree, purpose. All things
considered, it is not so much the case that the canons of interpretation are being integrated in a
textualist approach. Rather, this iteration of textualism deviates even further from its early versions
that were discarded as being incapable of holding ground on main ideas on original meaning. The
canons themselves can not serve as strict positive instructions as much as they can impose certain
loose and vague boundaries whose crossing can make an interpretation look like an arbitrary
ascription of meaning.
3. Traditional legal problems in Bettis hermeneutical perspective
Let me now return to the discussion of hermeneutical theories of law and theories of legal
interpretation. Topical, rhetorical and hermeneutical perspectives in Germany opened a possibility to
overcome traditional dichotomies between jusnaturalism and positivism. This was not done by
studying the field that we call legal interpretation or legal hermeneutics, but in a field that could be
called hermeneutical philosophy of law. Arthur Kaufman and Josef Esser (and later, from a different
point of view, in Robert Alexy) have developed a conviction that the traditional fact-value gap could
be "deconstructed" from a hermeneutical and discursive perspective. However, Bettis work from
1947 already demonstrates an important development in legal hermeneutics that could've (but in
Bettis elaboration didn't) lead to a specific theory of law that could be termed hermeneutical. He of
course did not elaborate a hermeneutical theory of law, but as some contemporary authors

61
Andrei Marmor discusses this characteristic of legal language in a recent article: A. Marmor, Can the Law Imply More
than it Says? On Some Pragmatic Aspects of Strategic Speech, Social Science Research Network Working Paper Series, 2009.


emphasize, elements of such a theory can be found in his work. I shall contest here that those
elements can be identified in at least two parts of Bettis work in legal interpretation. Simply put,
already in his work from 1948 we can see that a certain account of legal interpretation has a deep
bearing on the understanding of the legal phenomenon.
62

For Betti, law is a spiritual totality, with a general characteristic that it is an agglomeration of
technical (poetical) and practical (prudential) elements which render the legal system actual and
potential at the same time. The legal system is thus theoretically construed by Betti as always open
and never final, being in a permanent process of actualization and making.
63
It is also a situated
system based on the social reality that precedes him and that is in a manner (not exhaustively)
structured by it. Betti writes:
Social life constitutes a matter of legal regulation in regards to practical problems that are
put forward, if they constitute a stable organization of functions that are considered
necessary and useful for the integrity of social life (Betti, 1971b, p. 102)
Before becoming a normative system therefore, law is a system of social regulation that is
always in movement in a way that is productive. Like other objectivations of spirit, the law is also
subject to laws of formation and development that are twofold - they regard coherence on one side
and theological character on the other. This is, on one hand, in Bettis view fundamentally different
from the conceptions of law formulated by e.g., Montesquieu or Kelsen, who reduce legal
interpretation to a cognitive recognition, in order to become, in the impossibility of determining the
sense of the normative formula, a brute volitive activity. From Bettis perspective the legal system is
a dynamic totality which is rendered coherent by interpretative endeavors. Bettis role models are
those conceptions of law that he terms dynamic
64
and in which the legal system is viewed as a
cultural phenomenon that, thanks to interpretation, is in a permanent process of making,
development, integration and adaptation. It is this way that Betti comes to the conclusion that
interpretation is a key element in determining a legal systems coherence and totality:

62
Caiani points out: We can freely say that the entire Bettis discussion on the problem of legal interpretation is directly
and concisely conditioned by a broad historicist vision and a dialectics of the real as a continued process of spiritual
realizations and situational evaluations that constitute a basis for his entire assessment of hermeneutics L. Caiani, La
filosofia dei giuristi italiani, Padova, Cedam, 1995, p. 171.
63
Argiroffi 1994, p. 207.
64
Whose proponents were German jurists Ernst Zitelmann and Philip Heck.


It is an illusion to think that codified rules do not have lacunas and that the living and valid
law is that what is only written in a codification; it is a big mistake to believe that law can be
immobilized and that his dynamics can be paralyzed by formalism in regards of his
application. The truth is that for the effective realization of the behavior for which the
regulation exists an entire sequence of complementary procedures is required - those of
adaptation and conforming, integration and development - that constantly revolve and make
so that the norm doesnt remain dead, but instead to become alive and valid in a legal system
to which it belongs. (Betti, 1971b, p. 96).
Interpretation is for Betti therefore not only a technical legal activity, but primarily an activity
that develops the legal system, making it coherent. This is the first point I wanted to make in regards
to the thesis that Betti was not only aiming at an interpretative theory of law but also provided
elements for an interpretivist or hermeneutic philosophy/theory of law.
The other point of Bettis work that I wanted to bring to fore in the context of a
hermeneutical philosophy of law is his view on legal principles.
To a dynamic vision of a legal system that is based on historical sense it is clear that in
positive law, outside of visible norms there are principles and criteria of valuation that are
being elaborated by theoretical and practical jurisprudence as an organ of social
consciousness, on which the parties can rely in order to determine a maxims of judicial
decision making that is subject to control by a higher instance court.
65

In a more detailed definition of principles, Betti emphasizes that they should not be
understood as a result achieved a posteriori with a procedure of abstraction and generalization, but
rather as normative valuations, principles and criteria of evaluation that are an integral part of the
fundamentals of a legal system and have a genetic function in regard of other specific norms
66

(Betti, 1971b, p. 317). That said, it is clear that for Betti legal principles are not an object of
interpretation, as they don't have definite content, but instead represent instruments of
interpretation. They have a heuristic and hermeneutic function in legal practice; they are used by
lawyers to determine a maxim of decision making in a concrete case in a way that integrates the
legal system into an ethos of a society in which it is situated, in its historical and sociological

65
E. Betti 1971a, pp. 135-136.
66
E. Betti 1971a, p. 325.


ambient (Betti, 1971b, p. 325). However, and that is perfectly clear, they do not represent
something exterior to the legal system but constitute it in a way that is primarily interpretative. And,
as we all recall well, the difference and relevance of legal rules and legal principles was one of the
main lines of attack on the positivist conceptions of law by interpretivist ones.
With that said, what we could call a hermeneutical philosophy or theory of law in Bettis
work is only given in fragments. Towards the end of his life while trying to prepare entries for an
Encyclopedia of law he was indeed contemplating ways in which he could expand the problematic given
in this early work which he partially did in the article Attualit di una teoria generale dellinterpretazione
published in 1967.
67
This project was never completed and thus we can only speculate what it would
look like. Having in mind Bettis lifelong rejection of what he called existentially inspired
hermeneutics, it is at least certain that he wouldnt be inclined to accept an anti-methodological view
of the general theory of interpretation proposed by German and Italian legal theorists inspired by
Gadamer, nor an all-encompassing theory of law based on interpretation as proposed by Dworkin.
4. A final Bettian note on the possibility of a hermeneutical (interpretivist)
theory of law
In general philosophy hermeneutics has become a kind of philosophical "#$%!, an all
encompassing view of philosophical problems that are to be construed as problems of language
according to Gadamers dictum, Sein das verstenden werden kann ist Sprache. In some legal traditions,
such as the United States Ronald Dworkin, Giuseppe Zaccaria and Francesco Viola in Italy, Josef
Esser and Arthur Kaufman in Germany, a hermeneutical approach to law has emerged.
Interpretation as a technical legal activity in these theories evolved into a founding methodological
principle of the entire legal theory, contrasting them to purely descriptive endeavors of legal
positivism. This theory of interpretation has set itself the task of not only explaining what the law
says but also ascertaining what the law is. Glimpses of a similar approach render Bettis neglected
and almost forgotten work on legal interpretation contemporary and relevant.
This is not to say that a hermeneutical philosophy of law solves the fundamental questions
on the nature of law. In the end, it is quite probable that by giving elements of a hermeneutical

67
E. Betti, Attualit di una teoria generale dell'interpretazione, in G. Crif (Ed.), Interpretazione della legge e degli atti giuridici:
teoria generale e dogmatica, Milano, Giuffr, 1971c, pp. 83-87; G. Crif, Nota del curatore, in Interpretazione della legge e degli atti
giuridici, Milano, Giuffr, 1971, pp. XI-XIII


philosophy of law and not developing a full-blown interpretivist theory of law, Betti himself
acknowledged the limitations of interpretation as an all-encompassing approach to the legal
phenomenon. As said by one of the authors critical to Gadamers approach to hermeneutics in
regards to its exclusion of methodology and its universal claims:
If hermeneutics takes into account the polivalence in reading texts, if she becomes a theory
of multilateral readability, she can serve as an instrument of a solid argumentative education
without pretense to be the last word in interpretation, always leaving the door open for new
possibilities.
68

It can be argued with Betti that hermeneutics is at its best when it confines itself to problems
of textual interpretation, without universalist aspirations that have been given to her in the tradition
of continental philosophy. It can also be argued with Wittgenstein that interpretation does not cover
the entire field of understanding of textual communication. These broader philosophical issues are
out of the scope of this paper.
Having in mind the exposition thus far, it would seem that there is no dilemma in regards to
the fruitfulness of a communication between different traditions of theorizing on interpretation and
understanding. And yet, this is so often overlooked by jurists on both sides of the ocean. The
problems debated in the tradition of continental hermeneutics reemerge in contemporary originalist
debates, and there are times when some of the solutions of those earlier debates could prove
relevant and convincing for todays actors (or at least some of them). If we dont get intimidated by
a largely different approach and style, the confrontation of European and Anglo-American theorists
of interpretation almost always proves fruitful, even if it doesnt lead us to a consolidation of views.
Such a dialogue has been productive in the work of American and European philosophers alike
(think of Rorty and McDowell, Habermas and Apel), and there is no reason why it shouldnt be
fruitful in the case of jurisprudence and philosophy of law.

68
K. H. Stierle, Per un'apertura del circolo ermeneutico, in G. Nicolaci (Ed.), La controversia ermeneutica, Milano, Jaca
Book, 1994, pp. 17-18.