4 Interpretation and modi fi cation
4.2.4 Back to the frame theorem?
Despite the earlier argument, the theory of a frame of possible meanings can nonetheless be said to lie at the heart of Kelsen’s theory of interpretation. It is the frame itself that scholars ought to be concerned with, not the choice between the possible meanings. Here is the key passage again with changed emphasis:
If ‘interpretation’ is to be understood as epistemic ascertainment of the meaning of the object to be interpreted, the result of a legal interpretation can only be the ascertainment of a frame (which is the law to be interpreted) and thus the cognisance of multiple possibilities [of meaning], which are possible within the frame.140
Three aspects of Kelsen’s frame theorem are worth discussing briefly. It is alleged that Kelsen believed that norms necessarily have multiple meanings and that in no case would there be only one possible meaning. Eugenio Bulygin141 would support such an argument on a different reasoning. He sees this as given by the necessary vagueness of language. Kelsen, however, writes that ‘the interpretation of a stat- ute does not necessarily [have to lead] to one single correct decision, but it [could]
possibly lead to multiple [decisions]’.142 However, it is irrelevant for our purposes
139 Merkl (1916) supra note 41 at 1076–1077.
140 ‘Versteht man unter “Interpretation” die erkenntnismọòige Feststellung des Sinnes des zu interpretierenden Objektes, so kann das Ergebnis einer Rechtsinterpretation nur die Feststellung eines Rahmens sein, den das zu interpretierende Recht darstellt, und damit die Erkenntnis mehrerer Mửglichkeiten, die innerhalb dieses Rahmens gegeben sind.’ Kelsen (1960) supra note 3 at 349 (Ch 45 d) (emphasis added).
141 Eugenio Bulygin, Cognition and interpretation of law, in: Letizia Gianformaggio, Stanley L.
Paulson (eds), Cognition and interpretation of law (1995) 11–35 at 13; Ringhofer (1971) supra note 106 at 204–205.
142 ‘die Interpretation eines Gesetzes nicht notwendig zu einer einzigen Entscheidung als der allein richtigen [fỹhren muò], sondern mửglicherweise zu mehreren fỹhren [kann]’ Kelsen (1934b) supra note 95 at 1366 (emphasis added). In his ‘Allgemeine Theorie der Normen’ Kelsen is even more clear: ‘The possibility of unequivocal legal norms cannot be denied.’ ‘Die Mửglichkeit unzweideu- tig formulierter Rechtsnormen kann nicht geleugnet werden.’ Kelsen (1979) supra note 47 at 151 (Ch 50), 325 (N 145). Mayer (1992) supra note 103 at 65; Walter (1983) supra note 96 at 190–191.
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whether or not Kelsen believed in the necessity of multiple meanings, because it is the non-necessity of one correct meaning which is at the heart of the frame theorem.
The second aspect is the danger inherent in the theory that there is necessarily one correct meaning for norms. Traditional doctrines deny that a norm can have multiple possible meanings (Mehrdeutigkeit); ‘traditional approaches claim that the law-makers cannot seriously be presumed to have made law of this kind’,143 hence they claim that the law has not been understood properly and that somewhere one has ‘overlooked’ some premise which allows one to deduce the correct meaning.
If traditional jurists are confronted by a norm having multiple possible meanings, they add an extraneous norm which serves to eliminate all but one meaning, which is declared to be the only meaning.144 However, this has the drawback that
‘traditional jurisprudence’, which ostensibly is committed to legal positivism, becomes a sort of natural law doctrine, i.e. a form of legal idealism. Legal positivism has the objective of portraying only the positive norms of the normative order to be described. The tactic above adds norms which do not belong to the normative order145 and disguises an arbitrarily selected ideal law as positive law.146 Interpretation as cognition of norms is thus made impossible. Legal scholarship has to admit where the norm fails to be more precise147 and where it reaches the limits of legal cognition.148 At best, scholarship can show us what the norms look like and if it were to restrict the meaning of norms to sub-meanings, or if it were to ‘create’ a meaning which the norm does not have, it would be untrue to its nature of merely cognising law.149
There is a neglected third aspect to the frame theorem, for the frame of possible meanings and those meanings themselves are different things. If the choice between these possible meanings is free, if the norm only gives a frame of possible meanings,150 and if scholarship’s task is to cognise the frame – not, though, to authoritatively determine it – then how is the frame determined?151 This question
143 ‘[d]ie herkửmmliche Jurisprudenz behauptet, dem Rechtssetzer kửnne nicht ernstlich unterstellt werden, Recht in dieser Form geschaffen zu haben’; Thaler (1982) supra note 114 at 9 (FN 9).
144 Thaler (1982) supra note 114 at 10, 12, 153.
145 Merkl (1916) supra note 41 at 1063, 1069–1070.
146 Thaler (1982) supra note 114 at 159.
147 Merkl (1916) supra note 41 at 1067; Winkler (1990) supra note 102 at 218.
148 Walter (1983) supra note 96 at 191; Mayer (1992) supra note 103 at 62
149 Merkl (1916) supra note 41 at 1063: ‘[A] legal textbook cannot contain one iota more of legal content than its object, than the law it purports to describe.’ ‘[D]as umfangreichste Werk über positives Recht enthọlt um kein Jota mehr an Rechtsinhalt als sein Objekt, als der behandelte Ausschnitt des geschriebenen Rechts.’
150 Thaler (1982) supra note 114 at 17 (FN 35).
151 The determination of the frame is the determination of the meanings themselves: Pierluigi Chiassoni, Varieties of judges-interpreters, in: Letizia Gianformaggio, Stanley L. Paulson (eds), Cognition and interpretation of law (1995) 39–50 at 71, Kelsen (1960) supra note 3 at 349 (Ch 45 d); Inés Weyland, Idealism and realism in Kelsen’s treatment of norm conflicts, in:
Richard Tur, William Twining (eds), Essays on Kelsen (1986) 249–269 at 258–259.
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leads to a particulary interesting intramural debate, because the determination of the frame (what the frame looks like, how many possible meanings there are) is not free, even if it happens without human intervention in the ideal realm through the existence of the norms. The frame is immanent in the very validity (existence) of the norm. It is part of the ontology of the norm and not influenced by its cognition or application. But the question remains: if the ‘width’ of the frame is not within the discretion of organs, what happens if that organ chooses a meaning outside the frame? Is the cognition of the frame itself by legal science a self-contradictory ‘non-authoritative determination’ (Section 5.5.3.3)?
Before we end this look at the Kelsenian challenge, an outstanding issue can appositely be discussed here. It is the unusual distinction between ‘scientific’
and ‘authentic’ interpretation in Kelsen’s writings. The distinction is threefold.
(1) Who is to perform the interpretation? Authentic interpretations, for Kelsen, are performed by organs, that is by humans authorised by the law to apply it.152 This is in contradistinction to traditional international law doctrine, which sees an interpretation as ‘authentic’ only if done by the law-makers themselves, in the case of treaty law, by the parties in a different agreement. Kelsen, however, distinguishes between a general and individual authentic interpretation. (2) The result of authentic interpretation is a norm, as the word ‘application’ intimates.
‘Authentic interpretation, whether general or individual, is a law-creating act.’153 (3) Authentic interpretation is an act of will, scholarly interpretation is an act of cognition; one determining what is law, the other finding the law. Because an act of will is necessary for the creation of positive law, authentic inter- pretation as law-creation must be an act of will; mere cognition cannot create norms.154
From the standpoint of traditional doctrine it may be questioned whether we are properly speaking of authentic interpretation whenever a norm is applied (is the result of an act of interpretation, is created). Is there a difference between an authentic interpretation in the classical sense and a mere application?155 In the first case the organ which had previously created a general norm (e.g. a treaty) now creates another norm of the same kind, e.g. the ‘subsequent agreement between the parties regarding the interpretation of the treaty’ with the intention
152 Kelsen (1960) supra note 3 at 346 (Ch 45).
153 Kelsen (1950) supra note 52 at xv; Stanley L. Paulson, Kelsen on legal interpretation, 10 Legal Studies (1990) Number 2, 136–152 at 146. See also the interesting parallel theory of ‘choice’ and a system of precedent in Hart (1961) supra note 1 at 121–132 (Ch VII.1), 200–201; cf. Claudio Luzzati, Kelsen vs. Bulygin on legal interpretation: how not to read Kelsen through Hart’s eyes, in: Letizia Gianformaggio, Stanley L. Paulson (eds), Cognition and interpretation of law (1995) 85–106 at 85–87.
154 Kelsen (1960) supra note 3 at 351 (Ch 46).
155 Carl Schmitt agrees with Kelsen: ‘Any organ which authentically clarifies the questionable con- tent of a law is in this case a law-maker.’ ‘Jede Instanz, die einen zweifelhaften Gesetzesinhalt authentisch auòer Zweifel stellt, fungiert in der Sache als Gesetzgeber.’ Carl Schmitt, Der Hỹter der Verfassung (1931) 45.
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of ‘clarifying’ certain terms of the first treaty, envisaged in Article 31(3)(b) VCLT.
In the second case, an organ (e.g. the Security Council or an arbitrator) applies a general norm (e.g. the UN Charter or a compromis) which it had not created.
In so doing, it creates a further – perhaps individual – norm (e.g. a resolution or a judgment) which determines the meaning of certain terms for the purpose of the lower-level norm. The difference between the two cases is that in the first case the frame of meanings of the general norm itself is ostensibly changed156 by the latter act and not ‘applied’ by it, while in the second case the meaning is merely fixed for the purposes of the lower-level norm, for one specific instance, while the frame of possible meanings of the higher-level norm itself is not changed.
There may be a difference between these two methods of ‘interpretation’, but it is not particularly relevant with respect to interpretation, properly speaking.
The term ‘authentic interpretation’ is a contradictio in adiecto, because interpretation is not a ‘legal act’ if that means an act having some influence on the norms themselves. Interpretation is an act of cognition, which, though usually per- formed by jurists, itself is not performed as determination (creating law) but as a cognitive or hermeneutic function.157 Scholarly interpretation – an analysis of the possible meanings – may precede a decision – an act of will – in the mind of the human acting as organ, a human who has hermeneutic faculties. However, norm-creation as act of will is a categorically different function.158 The classical definition of ‘authentic interpretation’ fares no better, for the modification of a norm by a later norm cannot be described as an act of cognition. It may have happened incidentally, but is not necessary. The divergence is even greater here than in the case of an application of law. If L2 were to define ‘rubber duck’ in L1 (where L1 is an earlier law) as a flying object stabilised by fins carrying nuclear warheads over ranges greater than 1500km, then for the purpose of L1 – as modified by L2 – that is what a rubber duck is.
However, only norms authorised by the normative system to change the norm in question, usually only a norm of the same kind, can possibly change the norm in question. One problem of international legal theory is that there is uncertainty as to which norms can change international treaty law. The doctrine of acte contraire, that a treaty can only be changed by a treaty, is under attack by the proponents of a ‘dynamic’ view of treaties.159 Therefore, the term ‘authentic interpretation’ is laden with problems. We will consider this problem further in Section 4.4.
Have the Vienna School’s theories, has its critique been useful to the theory of treaty interpretation? It seems so. Kelsen’s theory of interpretation can be used as a means of showing the uncertainty inherent in the interpretation of legal texts, one that can only be filled by adding external elements to positive international
156 The possibility of change in law will be discussed in Chapter 5.
157 Hruschka (1972) supra note 2 at 95.
158 Robert Walter, Heinz Mayer, Gabriele Kucsko-Stadlmayer, Grundriò des ửsterreichischen Bundesverfassungsrechts (10th ed. 2007) 64 (MN 126); Kelsen (1979) supra note 47 at 246 (N 43).
159 An overt ‘dynamicist’ is Wolfram Karl: Karl (1983) supra note 125.
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law. The Pure Theory purifies legal science; its critique of other theories makes their problems obvious. If one then applies this strict standard to international law, one uncovers the failures of the dogmatic structure. This epitome of modern- ist legal theories, this positivist theory ironically but intentionally serves as a tool for the deconstruction of traditional international legal doctrine. It makes explicit that our results depend upon our assumptions and dogmas (and that the Pure Theory is but another dogma).