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Title: "Might laws be interpretive works in progress?"
Abstract: My goal in this paper is to consider a question in the ontology of law – what kind of thing are laws? According to a natural, familiar, and widespread view, laws are either artifacts or social constructs. They are things that are made. The idea that laws are things that are made looms large for some – in the hands of some positivists it is the indubitable observation that must shape our understanding of many questions about the shape and content of the law. For others it lurks in the background – a truth, but not one that teaches us anything important about questions of legal theory. In this paper I will be interested in exploring an alternative possibility: that laws are what I call interpretive objects. In particular, that they are what I call interpretive works in progress.
I am not quite going to argue, in this paper, that laws are interpretive works in progress. Doing so would require a careful consideration of the alternatives, but because the idea of interpretive objects is an unfamiliar one, I will be too preoccupied with explaining this idea in its own right to be able to adequately consider its alternatives. Moreover, a thorough argument that laws are interpretive works in progress would require conducting a complete survey of different sources of evidence – different ways in which the answer to this question could make a difference for different areas of legal theory, and a separate assessment of which of those answers are independently plausible. But I won’t have the space here for this survey, either.
Instead, I will confine myself to calling attention to three topics where I find the applications of the idea that laws are interpretive works in progress particularly intriguing – to simple questions about statutory interpretation, judicial review, and horizontal precedential respect. Because I can’t fully consider the alternative treatments of these topics made possible by alternative accounts of the ontology of laws, I can’t claim to argue that the thesis that laws are interpretive works in progress offers the best explanation of them. And because I can’t fully consider the other upshots of the idea that laws are interpretive works in progress, I can’t claim to argue that any costs of this thesis are worth it. But I hope that you will find the applications of this idea to be sufficiently intriguing, as I do, that it is worth it to consider them in their own right, and to see what we can learn from them, whether or not we end up accepting this idea.