Expressed Norms, Acontextual Meanings, Interpretive Arguments

Abstract

During the last decades, Riccardo Guastini introduced the distinction between expressed and unexpressed norms into the Italian theory of legal interpretation. According to Guastini and Damiano Canale, such a distinction is grounded on a distinction between two kinds of interpretive activity and reasoning: an expressed norm is identified through the techniques of interpretation strictly understood; an unexpressed norm is identified through the techniques of legal construction. Here I criticize such a view and propose the following definitions: a norm is expressed if it corresponds to a possible meaning of a legal text, that is, a meaning which can be expressed by this text in accordance with linguistic rules; a norm is unexpressed if it does not correspond to any meaning of this sort.