Judicial legitimacy and legal interpretation in the debate between Brutus and Publius

Abstract

In the model of legal interpretation and judicial legitimacy which emerges from Publius’ replies to Brutus and his fellow Anti‐federalists, legal interpretation is seen not as an application of formal hermeneutic methods to ascertain exclusively the empirical semantic meaning of rules, or the historical psychological intentions of legislators, but as a rhetorical process in which controversial arguments provide a basis for the judicial determination of a legal meaning which results in a normatively justifiable application of the law. The formal derivation of law from the legislative process, and of judicial decisions from the common meaning of the law, can only provide a prima facie legitimation which must be able to withstand critical arguments related to the ultimate norms which provide the substantive justification for government and law. To guard against judicial arbitrariness in deciding among the claims of conflicting visions of justice and the public good, the first stage of the rhetorical process of interpretation and legitimation, in which arguments linking formal and substantive normative standards are submitted as a basis for judicial judgment, must be complemented by a second stage, in which that judgment itself must prove persuasive and win empirical acceptance.