Methodologies of interpretation as ways of legitimization
Dr. Marjan Avjeski will be presenting the topic "Methodologies of interpretation as ways of legitimization" in connection to the MultiRights project.
Interpretation has been a hot button topic of late in the international law circles. To use a cliché gallons of ink and tons of printing paper have been spent debating the issue. The debate has certainly shed light on the operation of courts and has, to a large extent, managed to show how judges use the methodologies codified in Article 31-33 of the Vienna Convention on the law of Treaties (VCLT), as well as the methodologies that have been left uncodified as part of customary international law, in their interpretative processes. However, it is my opinion that most authors have missed the point, at least the starting point, and very few if all have started with the question of what do we do when we do interpretation and what is, in fact, interpretation.
It is my claim that by answering this question, by having a clearer picture of what we do when we do interpretation, we will shed some light on the use of interpretative methodologies and interpretative methodology talk in articles and judgments. I will also argue in this paper that methodologies do not have the effect that we think they do – to a large extent do not constrain interpretation – when they are deployed as part of a judicial opinion and that they are more useful – and used more – as rhetorical tools, helping the judges justify their normative outcomes. The broader aim of this paper is to decouple the terms interpretation and judging which have become almost synonymous with each other over the years and to point out that judges do not always do interpretation (do not always discover meaning of texts enacted by somebody else) when they judge but that judging entails something more than “mere” interpretation.