Civil-Law Courts in Common-Law Systems: Interpretive Cultures in Comparative Perspective

Civil-law courts in common-law systems: interpretive cultures in comparative
perspective
JOAO PEDRO PADUA (UFF, Brazil/Brooklyn Law School)
Abstract
In the comparative law literature and in the literature that deals with legal interpretation and
incorporates comparative insights, the general idea is that civil law legal systems are
deductive, norm-based, whereas common law legal systems are inductive, precedent-based.
In arguing for textualism as an interpretive methodology, the late Justice Antonin Scalia
proposed that Federal Courts in the U.S. should behave as civil law courts, since most of the
cases over which they adjudicate are to be settled through the construal of predefined,
legislature enacted statutes. In this Article, we start from Scalia’s argument and put it to a
conceptual and empirical test. Using the concept of interpretive culture, constructed from
social science theoretical imports and analyzing comparatively four cases, two decided by the
U.S. Supreme Court and two decided the Brazilian Supreme Court, the Article turns Scalia’s
assumptions on their head and shows that, actually, it is the U.S. Supreme Court that gives
greater emphasis on the textual analysis of the legal norms. Theoretical entailments and
comparative law tenets from these findings are discussed. The Article concludes that it is
unwarranted to argue that textualism or greater concern with the text of statutes (or
constitutional norms) automatically foster separation of powers or respect for democracy, and
that, rather, these are parts of interpretive cultures that vary in time and space and for
complex reasons.
I. Introduction
At the end of the1990s, the late Justice Antonin Scalia delivered a lecture at Princeton
University on the subject of legal interpretation that remains very influential. He cleverly
chose to title it “Common-law Courts in a Civil-law system: The Role of the United States
Federal Courts in interpreting the Constitution and the Laws"1 His main argument – and the
reason for the title – was that although the US lawyers and judges view themselves as
applying common-law inductive methods of reasoning and norm construing (or creating),
they are, in fact, applying civil-law-like deductive methods, by using pre-existing written
norms as parameters to regulate litigated facts. He then used this argument to develop and
defend his preferred principle of norm-construing, textualism – dubbed originalism for
constitutional interpretation for reasons we shall see.
1
Antonin Scalia, Common-Law Courts in a Civil Law System: The Role of the United States
Federal Courts in interpreting the Constitution and the Laws, in 2 A MATTER OF
INTERPRETATION: FEDERAL COURTS AND THE LAW 3 (Amy Gutman ed., 2018).
Electronic copy available at: https://ssrn.com/abstract=3540482

Although he never addresses the issue explicitly, implicit in his argument and in how
it connects with the title of his lecture is the claim that while common-law judges usually
create legal norms out of some form of customary and common-sense normative expectations
case by case, civil-law judges only reveal the meaning already encoded in the pre-existing
normative text, enacted by a legislature, however it may be called in each country2. In this
view, civil-law style of legal reasoning and norm-applying would be more democratic,
because it would yield the power to make the law to elected legislators, instead of giving it to
unelected, unaccountable judges3.
In this Article, I want to address exactly this issue, in the form of three questions. Is
there really a civil-law method of norm-construing and norm-applying that is different from
the common-law method? And, if there is, is this method inevitably more textualist or at least
text-oriented? Finally, if so, is it a more democratic method? (Spoiler alert: you will probably
be surprised with the answers. I’m sure Justice Scalia would).
Although the dialogue between common-law and civil-law styles of legal
interpretation has developed over the years4, it still seems to be a somewhat awkward one,
mostly because the parties to this dialogue cannot make the imaginative effort to understand
each system in terms that are both native to them and translatable to each other5.
Therefore, it is one of the main arguments of this paper that different ways, methods
and unwritten protocols that jurists use to approach, read, and construe meaning of legal texts
coalesce into interpretive cultures. These interpretive cultures, in turn, come back to orient
the individual jurist each time s/he has to resolve some perceived meaning problem in legal
texts. At the same time, in using those cultural tenets to solve meaning problems, the jurist
2
Cf. Id., at 6 (“Common-law courts performed two functions: One was to apply the law to
the facts. All adjudicators – French judges, arbitrators, even baseball umpires and football
referees – do that. But the second function, and the more important one, was to make the
law". (Emphasis in the original)).
3
Id., at 9-13.
4
See, generally, Robert S. Summers and Michele Tauffo, Interpretation and comparative
analysis, in INTERPRETING STATUTES: A COMPARATIVE STUDY 461 (D. Neil
MacCormick & Robert S. Summers, eds., 1991) (summarizing the results of a multiyear,
multicountry effort in comparative statutory interpretation); Lawrence M. Solan, Precedent in
statutory interpretation,94 N. C. L. REV. 1165, 1168-9 (2016) (proposing that what sets
common-law and civil-law styles of statutory interpretation is not the use of the text, but the
heavy use of precedents by the former); and sources cited therein.
5
See Clifford Geertz, Thick description: Toward an interpretive theory of culture, in THE
INTEPRETATION OF CULTURES 17 (Clifford Geertz ed. 1973).

actualizes and displays the very tenets that her interpretive culture offers her as tools for legal
interpretation6.
In answering the questions about how common-law and civil-law systems might
differ in what regards legal interpretation, I must, accordingly, try to disclose some of the
interpretive cultural aspects that seem to underpin and guide the interpretive task, as
approached by each of the systems.
To do that, I will proceed as follows. In Part II, I will draw on social science and
discourse studies to construct more elaborately the analytical concept of interpretive cultures,
that will guide our analyses of both common-law and civil-law styles of legal interpretation.
In Part III, I will explore, via literature review, how legal interpretation as a whole
phenomenon, that includes constitutional and statutory tokens, operates in common-law and
civil-law jurisdictions, with a focus on the US and Brazilian systems as (recognizably
incomplete) proxies for each system. In Part IV, I will illustrate the theoretical discussion, by
analyzing one constitutional and one statutory case decided by each the US and Brazilian
Supreme Courts, focusing on how each interpretive culture materializes in the methods of
interpretation formulated in each case. In Part V, I will bring it all together, to show how
interpretive cultures influence and are shown in the particular ways the highest courts of each
culture perform their tasks of construing what the law means and how they should justify this
construction. Concluding remarks will finish the Article.
II. Interpretive cultures

A. The concept of culture
The concept of "culture", besides having a vast semantic reference, is one of the most
studied, and debated about, in the social sciences7. Originally developed as an analytical
concept to allow the study of different communities that early ethnographers wanted to
explore, it went into a definitional voyage that selectively highlighted different foci, based on
what next generations of ethnographers proposed, based on their observations and theoretical
imports. For instance, the concept went from the focus on the civilizational, ontogenetic
6
One can think here of concepts like Gadamer’s famous “hermeneutical circle” and
Garfinkel's reflexivity as a feature of social symbolic actions. See Hans-Georg Gadamer, The
universality of the hermeneutic problem, in PHILOSOPHICAL HERMENEUTICS (David E.
Lange ed. and transl., 1977); Harold Garfinkel, What is Ethnomethodology, in STUDIES IN
ETHNOMETHODOLOGY 1, 7-9 (Harold Garfinkel, ed. 1967).
7
See, generally, DENYS CUCHE, A NOÇÃO DE CULTURA NAS CIÊNCIAS SOCIAIS
(1999).

concept of culture as the totality of social institutions in Tylor, to the focus on the relativistic
construction of local patterns of behavior and thought in Boas8.
At the second half of the 20th Century, reviewing these concepts and his own
ethnography, Clifford Geertz proposed a renovation of it:.
The concept of culture I spouse […] is essentially a semiotic one.
Believing, with Max Weber, that man is an animal suspended in webs
of significance he himself has spun, I take culture to be those webs,
and the analysis of it to be therefore not an experimental science in
search of law but an interpretive one in search of meaning.9
The conceptual pair semiotic culture::interpretive anthropology puts the discovery of
meaning and its explication at the center of the analytical enterprise. Human behavior,
society, and its communities may make sense – to us and to them – because we can put them
in webs of significance and understand how these webs are constructed.
Molding this semiotic concept of culture to the study of legal settings, Geertz
developed a related one, that of “legal sensibilities”:
That determinate sense of justice -- what I will be calling […] a legal
sensibility – is, thus, the first object of notice for anyone concerned to
speak comparatively about the cultural foundations of law. Such
sensibilities differ not only in the degree to which they are
determinate, the power they exercise, vis-à-vis other modes of thought
and feeling, over the processes of social life (when faced with
pollution controls, the story goes, Toyota hired a thousand engineers,
Ford a thousand lawyers); or in their particular style and content. They
differ, and markedly, in the means they use – the symbols they deploy,
the stories they tell, the distinctions they draw, the visions they project
– to represent events in judiciable form. 10
Although Geertz was focusing on concepts of justice and on the relation of abstract
norms and legally relevant facts, the idea that legal cultures form legal sensibilities, as an
ensemble of unarticulated-yet-always-operational background knowledge is a pervasive one
8
Id., at 35-48.
9
Geertz, supra note 5, at 5.
10
Clifford Geertz, Local Knowledge: Fact and law in comparative perspective, in LOCAL
KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTRHOPOLOGY 167, 175
(Clifford Geertz, ed., 1983)

to any aspect of legal phenomena. As the social sciences – especially ethnomethodology –
have shown about social actors more generally, jurists construct their actions in legal settings
on the basis of local use of such a background knowledge that includes not only knowledge
of legal concepts, information and norms (i.e., know that), but especially knowledge of legal
protocols, methods and techniques that allow her actions to be evidence of her professional
role as a lawyer – both to member of the legal community and member outside of it (i.e.,
know how)11.
These legal sensibilities encompass a host of activities typical of legal settings and
legal actions. They also constrain the form of production and understanding of those
activities as part of a professional culture. Lawyers not only question witnesses, but do that in
a specific, lawyerly way. They do not only write persuasive documents, but do that in a
specific way and in specifically shaped documents (for instance, a legal brief). All of the
specific, legal sensible ways of doing stuff, is learned through the socialization process that
goes on in Law School, internships, clerkships and the like, alongside the more formal
training in legal concepts and doctrines. Through this learning how to act as lawyer – i.e. to
have legal sensibilites – the aspiring lawyer gets inside, bit by bit, a legal community, which
is one specific community of practice12.
In any number of specific practices, then, lawyers act consistently with predictable
and stable protocols. These protocols, in turn, are consistent with the practices shaped by the
community-specific culture or legal sensibility. I want to focus next and throughout this
Article in one of these practices, namely the interpretation of normative texts or legal
interpretation.
11
See Garfinkel, supra, note 6, at 11ff. Garfinkel proposed, based on empirical observations,
two levels of social action, one at the surface and the other underlying in with background
knowledge. He initially formulated a "documentary method of interpretation" to analyze how
the surface level actualizes and also interacts with the underlying one. Although later this
concept has come into criticism inside the ethnomethodological program of sociology, this
subtler conceptual discussion need not concern us here. See ROD WATSON, ANALYSING
PRACTICAL AND PROFESSIONAL TEXTS: A NATURALISTIC APPROACH 1344
(2009, Kindle® Edition).
12
See Janet Holmes & Miriam Meyerhoff, The community of practice: Theories and
methodologies in language and gender research, 28 LANG. SOC. 173 (1999). See also Julie
Colemans & Baudouin Dupret, Introduction, in ETHNOGRAPHIES DU RAISONNEMENT
JURIDIQUE 7 (Julie Colemans & Baudouin Dupret, eds., 2018) (Discussing forms of logical
reasoning specific to the legal field, which the authors called “juridism” [juridisme, in
French]).

B. Interpretation as part of a legal culture
Approaching a legal text from the perspective of a jurist, i.e., a member of the legal
community, is more than just knowing principles or methods of interpretation that one has
learned from doctrinal sources. It starts with the ability – that comes from practice – to
recognize and parse those legal texts, which are usually very peculiar from a syntactic and
lexical point of view13. This is true not only of statutes and other written norms, but also of
particular norms such as contracts14.
In addition, different legal cultures have different conventions for structuring legal
texts. Compare for instance the Federal bribery statute of the United States15 (1) with the
bribery statute from the Brazilian Penal Code16 (2):
(1)
(b) Whoever—
[…]
(2) being a public official or person selected to be a public official,
directly or indirectly, corruptly demands, seeks, receives, accepts, or
agrees to receive or accept anything of value personally or for any
other person or entity, in return for:
(A) being influenced in the performance of any official act;
(B) being influenced to commit or aid in committing, or to collude in,
or allow, any fraud, or make opportunity for the commission of any
fraud, on the United States; or
(C) being induced to do or omit to do any act in violation of the
official duty of such official or person;
[…]
shall be fined under this title or not more than three times the
monetary equivalent of the thing of value, whichever is greater, or
13
See Vijay Bhatia, Cognitive structuring in legislative provisions, in LANGUAGE AND
THE LAW 136, 140-9 (John Gibbons, ed., 1994) (exploring syntactic properties and their
cognitive consequences in statutes from Singapore and India); Risto Hitlunen, The grammar
and structure of legal texts, in THE OXFORD HANDBOOK OF LANGUAGE AND LAW
39 (Peter M. Tiersma and Lawrence M. Sola, eds., 2016) (same with examples from UK
Law); PETER M. TIERSMA, LEGAL LANGUAGE 51-143 (2000) (showing lawyerly ways
of talking, selecting lexical itens, interpreting texts and generally “talking like a lawyer”).
14
See Tiersma, supra note 13, at 100-14.
15
18 U.S.C. § 201 (Bribery of public officials and witnesses)
16
Brazilian Penal Code, article 317 ("Corrupção Passiva")

imprisoned for not more than fifteen years, or both, and may be
disqualified from holding any office of honor, trust, or profit under the
United States.
(2)
To demand or receive, for oneself or others, directly or indirectly,
even outside of public capacity or before entering it, but because of it,
undue reward, or to accept a promise of said reward;
Sanction – prison term, from 2 (two) to 12 (twelve years), and a fine.17
Just by looking at the two provisions it is clear that legal culture in the US calls for
more detailed definitions, with as many qualifications, modifications and specifications as
possible. The Brazilian legal culture, on the other hand, values concise and abstract
normative texts, that contain only what is deemed essential for a basic description of the
criminalized behavior. Also, although both provisions use syntactic structures that generalize
the person who is the potential author of the criminalized act, the US version marks this
generalization with an indefinite pronoun ("whoever”), followed by conjugated verbs
(“demands, seeks, receives", etc.), while the Brazilian version marks the same linguistic
phenomenon by using an infinite – unconjugated – version of some of the same verbs.
Consider, finally, how the graphic display of the texts is different, in what regards the
indentation and separation of some parts of it.
So, in being socialized in a legal community, one first has to learn to familiarize
oneself with the kinds of legal texts one will encounter on a daily basis. Moreover, one has to
learn how to read it properly, which means construing meaning in them. One part of this task
is accomplished through the use of principles and methods of interpretation that the legal
community has at its disposal – which will occupy us in the next part of this Article.
Another part of this task deals with when, where and why to apply those principles
and methods. In other words, how is it that an interpretive problem is spotted, so that there is
a need to mobilize legal principles of interpretation to solve it. After all, although every
17
The original reads as follows:
"Solicitar ou receber, para si ou para outrem, direta ou indiretamente, ainda que fora da
função ou antes de assumi-la, mas em razão dela, vantagem indevida, ou aceitar promessa de
tal vantagem:
Pena – reclusão, de 2 (dois) a 12 (doze) anos, e multa."
(My translation)

reading of a legal text is inevitably an act of interpreting it, since linguistics has long shown
that there is no such thing as an immediate, or natural meaning18, not all of those
interpretations give rise to problems that require dedicated attention and effort19. Separating
one type of cases from the other is part of the protocols that go with the legal culture. So,
framing an interpretive problem as such is part of the legal culture.
The formulating of interpretive issues as interpretive problems that need solving and
the principles and methods for solving it are integral to each legal culture, or more
specifically, to one of its semiotic components: interpretive cultures. As any cultural aspect of
any society or community, these interpretive cultures differ from one another. Also as with
any culture, the degree of variation and closeness can be grasped at different levels of
abstraction, from macro-systems to micro-communities or even sub-communities. The more
concrete the level, the higher the degree of the claim of empirical accuracy, but also the lower
the degree of general usefulness as a conceptual matter.
In comparative law, there has been a conventionalized way of grouping different legal
communities in systems (or families) that groups together countries that have affinities in
terms of legal history, conception of sources of law and structure of legal norms20. Two of
such systems are the Common Law system and the Civil Law system (also called Roman-
Germanic system). Although this systemic grouping overlooks differences at the country
level, it is a good enough heuristic for the purposes of this Article. Furthermore, some of its
overgeneralization will be compensated in this Article by the focus on two countries, U.S.
and Brazil, which will be taken as proxies for the systems of which they are part.
Before we turn to the review of the specific interpretive cultures in each of these two
legal communities, it should be noted that some of their principles and methods of legal
18
See Marcelo Dascal, Transparênca e Dúvida: Pragmática da Interpretação no Direito, in
INTERPRETAÇÃO E COMPREENSÃO 342 (Marcelo Dascal, ed. 1999).; Dieter Stein, On
Inferencing in the Law, in THE PRAGMATIC TURN IN LAW 335 (Janet Giltrow & Dieter
Stein, eds., 2017)
19
See LAWRENCE M. SOLAN, THE LANGUAGE OF STATUES: LAWS AND THEIR
INTERPRETATION 5-12 (2010) (arguing that “most of the time [...] rules work so well that
the possibility of concocting unusual situations in which they do not provide unequivocal
answers go unnoticed”); François Recanati, Does Linguistic Communication Rest on
Inference?, 17 MIND & LANGUAGE (1, 2) 105 (2002) (showing how every meaning
construction is in the end pragmatic, since semantics is always potentially underdeterminate,
but also showing how there are different degrees of underdetermination).
20
See RENÉ DAVID, 3 OS GRANDES SISTEMAS DO DIREITO CONTEMPORÂNEO
14-20 (1998); Máximo Langer, From legal transplants to legal translations: The
globalization of plea bargaining and the Americanization thesis in criminal procedure, 45
HARVARD INT. LAW J. 1–64 (2004).

interpretation may sometimes look similar, especially in the types of evidence to which they
call the attention of interpreters. However, we should keep in mind that even when the
content of these principles and methods seem to overlap, the cultural structure – i.e. the web
of significance – in which they are embedded infuses in them differences that usually make
the apparent similarity just apparent.
Consider, for instance, that although what is called the “systematic principle of
interpretation” in the civil law systems21 is close to one evidence of meaning at which
textualists call the interpreter to look in the common law systems22 – to wit, meaning of
similar texts in similar laws --, the way these two systems use the same evidence is very
different. Common law textualists tend to isolate specific words or phrases to compare in
different normative texts, whereas civil law interpreters will use “systematic interpretation”
more loosely, to compare whole stretches of text or even whole norms between laws,
sometimes incorporating its (policy) objectives into the mix.
That actually is the importance of thinking in terms of interpretive cultures, not only
of interpretive principles. The way to formulate an interpretive problem and the way to use
interpretive tools to solve it are conditioned by – and realizations of – usually unwritten
methods and protocols stemming from those cultures. The doctrinal principles and methods
of legal interpretation only make sense locally – i.e., in each community of which they are
part – against the semiotic backdrop of those other (cultural) methods and protocols of
interpretation.
III. Legal interpretation in Common Law and Civil Law

A. Legal interpretation as macro-category
Especially in the common law culture – and, inside it, especially in the US – there is a
separation between two domains of inquiry regarding interpretation of written legal norms:
statutory and constitutional interpretation. The reasons for this separation are: (i) these two
kinds of legal texts would be structurally different – i.e. syntactically and lexically --, so that
constitutional texts would be vaguer than statutes; (ii) constitutional norms are older texts,
which creates interpretive problems, especially for a more purposive approach; and (iii) the
interpretation of constitutional norms would have a greater normative effect, in terms of the
21
See, infra, Part __.
22
See, infra, Part __.

division of tasks and power between the Legislative and the Judicial branches, since the
Constitution is more difficult to amend.
As Abbe Gluck puts it,
[I]n the constitutional context, […] the nature of the question is
different – i.e., how to interpret a difficult-to-amend, old document
versus how to interpret statutes that still may be drafted or amended
after precedential methodological regimes are imposed. Indeed, it is
because of this difference – that statutes are much easier to enact and
amend in response to court decisions than are constitutional
amendments – that courts generally attach different levels of
substantive stare decisis to constitutional and statutory precedents,
giving stronger precedential effect to statutory decisions.23
So, the case for the constitutional interpretation as a distinct case of interpretation
rests on three sets of reasons, we can call textual-structural, semantic-historical and
normative-functional. It is not the aim of this Article to challenge the whole idea, but, as I
will eventually propose that legal interpretation can be profitably considered as a whole field
of inquiry, even if with special normative concerns for statutory and constitutional norms at
times, I shall look into these reasons briefly.
23
See Abbe R. Gluck, The states as laboratories of statutory interpretation: Methodological
consensus and the new modified textualism, 119 YALE L. J. 1750, 1822 (n. 269) (2010). See
also, e.g., Scalia, supra note 1, at 36 ("The problem [of constitutional interpretation] is
distinct not because special principles of interpretation apply, but because the usual principles
are being applied to an unusual text”).
Interestingly, this idea that stare decisis should be stronger in statutory cases, because it is
easier to amend statutes, which makes sense at face value, can also be turned on its head.
Since the Constitution is harder to amend, it deals with more important and structural issues
in society and basic design of political institutions, therefore deeply affecting social life,
politics and policy. So the additional instability generated in constitutional cases could also
be criticized on those grounds, for if the Supreme Court overturns itself, a host of social
bodies, institutions and actors have to quickly adapt. Just to take one current example, one
can imagine the social turmoil that would come if the Supreme Court overturns Roe v. Wade.
In fact, stability seems to be – rightly or wrongly – a key value in the concept of legislation,
no matter if constitutional or statutory. See Steven G. Calabresi, Afterword to the New
Edition, in 2 A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW
151 (Amy Gutman, ed. 2018) (“That the Constitution was meant to prevent and slow down
change is apparent from Article I, section 7, which requires bicameralism and presentment to
the President before a bill can become law. This onerous requirement deliberately makes it
hard to enact federal law.”).

In what regards the textual-structural reason, the argument that the Constitution has
specially crafted, vague texts as opposed to more precise statutory texts is a case of normative
metonymy. As Laurence Tribe reminds us, "not all constitutional provisions are of the same
sort even at the moment they are launched upon their historic journey. Some are highly
specific and concrete, other considerably less precise and more transparently fluid."24 In fact
most of the discussions about how to correctly interpret constitutional norms in the US comes
from a handful of more "aspirational"25 norms that are distinctly vague in their lexical
content, especially the Fourteenth Amendment’s due process and equal protection clauses26,
from which the right to privacy was derived. Some constitutional norms, in fact, are very
statute-like, as, for instance, the norm that states the requisites for a person to be elected a
Representative27.
The question with constitutional interpretation seems rather to be that legal culture
preconceives it as a more foundational and political legal document, even if it is also
conceived as a legal document with normative functions28.
As for the semantic-historical reason, the Constitution is indeed, probably, the oldest
normative written source still in effect in the American Legal System. However, there are a
lot of very old statutes still in the books, especially in Criminal Law, where statutes tend to
die hard and can be rendered useless by prosecutorial fiat – so there is not a lot of incentives
to repeal them legislatively. Even a very important statute such as the Hobbs Act, that still
defines important federal crimes such as extortion and corruption, was enacted in 194829.
Although heavily amended in 1994, it is still the source of legal controversy today30 and, if
one is to try to get the public understanding of its terms when enacted, one would have to
venture into the same type of historical inquiry as if one was trying to determine what, say,
24
Laurence H. Tribe, Comment, in 2 A MATTER OF INTERPRETATION: FEDERAL
COURTS AND THE LAW 86 (Amy Gutman ed., 2018).
25
Id., at 86.
26
See STEPHEN GRIFFIN, AMERICAN CONSTITUTIONALISM: FROM THEORY TO
POLITICS 169 (1996).
27
U.S. Const. art. I, § 2, cl. 2 ("No Person shall be a Representative who shall not have
attained to the Age of twenty five Years, and been seven Years a Citizen of the United States,
and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen").
28
This “legalization of the Constitution” seems to have been the biggest accomplishment of
the Marshall Court and it is the basis for the establishment of the Supreme Court as an
important political body, that has a very special function in the coordination between the
three branches, i.e., judicial review. See GRFFIN, supra note 27, at 145.
29
18 USC, §1951(a)
30
See, ex. gr., McDonnell v. US, 136 S. Ct. 2355, 195 L. Ed. 2d 639 (2016)

“due process of law” meant in 186831. So the question here is more of interpretive
methodology and less of the oldness of the text.
Finally, the normative reasons that ground the difference of constitutional and
statutory interpretation, the argument that in interpreting constitutional norms the courts have
less room to engage the Legislature in a normative dialogue is generally true. However,
although it is a truism to say that it is easier to amend statutes than the Constitution, the
question of whether the Legislatures – especially Congress – do override statutory
interpretation is an empirical one – and one with a seemingly very complicated answer32.
Also, it doesn’t seem sound to draw a conceptual/doctrinal line in categories of interpretation
of legal text based on the presumed willingness of the involved governmental branches to
reverse this interpretation. It is akin to propose that we can have different interpretations of
tax statutes because Congress seems more willing to amend them33.
In a similar vein, while pointing out that "all judges use similar basic tool to help
them accomplish the task [of statutory or constitutional interpretation]”, Stephen Breyer has
proposed the term “literalist” as a “shorthand for both [textualists (in respect to statutes) and
31
Scalia hints at this when he writes that "the same principles apply” to statutory and
constitutional interpretation. See supra note 24. Justice Scalia himself had the opportunity to
put these principles in practice many times when judging actual cases. In Moskal v. US (498
U.S. 103 (1990)), for instance, where the issue was whether a statute that made a crime to
transport any "falsely made, forged, altered, or counterfeited securities” applied to legitimate
car titles that contained deliberately false information, he dissented, arguing that the meaning
of “falsely made” in 1939, when the statute was enacted was synonym to “forged" and,
therefore, did not apply. See Lawrence M. Solan, Linguistic issues in statutory interpretation,
in THE OXFORD HANDBOOK OF LANGUAGE AND LAW 95-6 (Peter M. Tiersma and
Lawrence M. Solan eds., 2016) (discussing changes of meaning in statutes using the same
case as an example).
32
See Matthew R. Christiansen and William N. Eskridge, Jr., Congressional overrides of
Supreme Court statutory interpretation decisions 1967-2011, 92 TEXAS L. REV. 1317, 1320
(arguing that, “the large majority of overrides are not well-publicized restorative overrides
[…]-but are instead more routine policy-updating overrides, namely, override statutes
frequently supported by bipartisan majorities in Congress that have as their stated goal the
updating of public law, rather than "correction" of judicial mistakes”).
33
I am talking here about basing different interpretive principles and methods on the
possibility of reversing the interpretation at which one arrives in using said principles and
methods. Of course, different statutes can -- and maybe should -- invite different policy,
purpose and moral considerations in the process of interpretation based on the legal matter at
stake. For instance, Tiersma has proposed a more literalist approach to criminal statutes for
reasons of fair notice and rule of law, whereas a more purposive approach would be
acceptable for regulatory statutes, that are presumptively directed to regulators, lawyers and
the like. See Peter M. Tiersma, A message in a bottle: Text, autonomy and statutory
interpretation, 76 TULANE L. REV. 431, 476-7 (2001).

originalist (in respect to the Constitution)]"34. Brian Bix has also argued that the basic issue
of interpretation is common to the general interpretation of (any) legal texts, i.e.,
"determining the meaning and application of constitutional provisions, statutes, contracts,
wills and trusts”35.
Furthermore, from a comparative point of view, the strict separation of constitutional
and statutory interpretation as different types of interpretation is even more difficult to
defend. To be sure, the doctrine of Civil Law countries has long proposed to make separation
between the two. But that would be a weak separation, restricted to some specific methodical
variables that do not affect the “nature of the interpretive activity as such" 36. Also in Civil
Law systems, most notably after the Second World War, the interpretation and application of
statutes has frequently intermeshed with that of constitutional norms, mainly through the so-
called mechanism of constitution conformant interpretation (Verfassungkonforme
Auslegung)37.
Therefore, I will propose and follow in the remainder of this Article, that any
interpretive enterprise inside legal contexts and settings are but tokens of the same type,
namely the legal interpretation type – which, as Bix38 stated, might encompass not only the
constitutional and statutory tokens, but also contracts and wills, for example. General issues
and questions of legal interpretation will have different tasks to accomplish and possible
particularities in specific interpretive enterprises, but their cultural traditions will be the same.
In other words, any issue in specific domains of legal interpretation will be illuminated and
referred to the interpretive culture of which it is an instance39.
B. Legal interpretation in common law systems
34
See STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC
CONSTITUTION 7, 116 (2006).
35
Brian H. Bix, Legal interpretation and the philosophy of language, in THE OXFORD
HANDBOOK OF LANGUAGE AND LAW 152 (Peter M. Tiersma and Lawrence M. Solan,
eds., 2016).
36
See Ricardo Guastini, Especificidad de la interpretación constitucional?, in
DISTINGUIENDO: ESTUDIOS DE TEORÍA Y METATEORÍA DEL DERECHO 287
(Ricardo Guastini ed., 1999).
37
See infra ___
38
See Bix, supra, note 36.
39
Much in the same way Garfinkel described the feature of reflexivity of any social action.
See Garfinkel, supra note 6.

We should start with what seems to be a consensus amongst legal scholars and
practitioners in how to approach a legal text in common law legal systems40: everyone should
begin with the text. Lawrence Solan explains this point by emphasizing that
[w]hat the two sides [of the debate about how to best interpret a
statute] share is a commitment to legislative primacy as the core value
in statutory interpretation. […] Most of the debate in the interpretation
of statutes […] is not [about] what a court should try to do but rather
how a court should accomplish what everyone agrees should be
accomplished.
For example, Supreme Court justices of all political stripes routinely
begin statutory interpretation by analyzing the language of the
statute.41
In the constitutional domain, Stephen Breyer acknowledges that, among the "basic
tools” of interpretation, the first is "read the text’s language along with related language in
other parts of the document"42.
Therefore, the debate does not begin with whether the analysis of the text of the norm
– and whatever meaning can be derived directly from it – is controlling, but whether it is
solely controlling. As Eskridge and Levi put it, “Almost all major theorists of statutory
interpretation, and all who are sitting judges, believe that the starting point for application is
statutory text. An increasing number of theorists, the so-called 'new textualists’, believe that
text should also be the stopping point in most cases."43
40
As I pointed out earlier, I am using the US legal system as a proxy for the Common Law in
general. Although it has its limitations and should be generalized with careful skepticism, this
strategy seems warranted to the extent that the discussion about whether or not to extend the
inquiry beyond textual analysis seems to be, in the UK especially, of the same kind as in the
US, even if not with the same intensity and with the same degree of disagreement. See
Lawrence M. Solan, Law, language and lenity, 40 WM. & MARY L. REV. 57, 90 (n. 143)
(describing changes in the House of Lords precedents about the use of legislative history in
statutory interpretation, with the decision Pepper v. Hart); James J. Brudney, Below The
Surface: Comparing Legislative History Usage by The House of Lords and The Supreme
Court, 85 WASH. U. L. REV. 1, 2 (1998) ("Our legal community is not alone in debating the
use of legislative history as a resource for the interpretation of statutes.”); Scott C. Styles,
The Rule of Parliament: Statutory Interpretation after Pepper v Hart, 14 OXFORD J.
LEGAL STUD. 151 (1994) (discussing the implications of the same decision for the
relationship between Parliament and the courts).
41
LAWRENCE M. SOLAN, THE LANGUAGE OF THE STATUTES: LAWS AND
THEIR INTERPRETATION 51 (2010) (Emphasis in the original).
42
Breyer, supra note 35, at 7.
43
William N. Eskridge, Jr. And Judith N. Levi, Regulatory variables and statutory
interpretation, 73 WASH. U. L. Q. 1103, 1112 (1995) (citation omitted).

The debate begins, then, when scholars and practitioners discuss whether to use
sources other than the text to ascertain its meaning, or at least, its best application for the case
at hand44. Here, we have a divide between two schools that propose two different paths to
follow, when the textual analysis, for whatever reason45, does not provide a clear meaning of
the norm to resolve the case, or when it does, but the clear meaning seems also clearly the
wrong way to resolve it.
One path, textualism, circles around the text itself. Legal interpretation should not
transcend the text. If the textual analysis stumbles upon an indeterminacy – an ambiguity or
vagueness --, only textual aides can be used. These aides are to be viewed as somewhat
internal to the text, as opposed to external aides, which are prohibited.
Scalia has a simple way of summarizing what textualism is: "[a] text should not be
construed strictly, and it should not be construed leniently; it should be construed reasonably,
to contain all that it truly means."46 To know what is it that a normative text “fairly means”,
44
See Id., at 1106-1112 (discussing the distinction between describing meaning and
normatively proposing a specific application based on the acceptance of rejection of the
meaning so described and proposing the concept of “regulatory variability” to account for the
different possible applications of the same words and phrases).
45
The literature usually points to issues of ambiguity and vagueness. These are inevitable
features of language use that predict that, at times, it is impossible for interpreters of
utterances to ascertain its meaning on the basis of language alone, because more than one
meaning is equally warranted by standard practices of interpretation. See SOLAN, supra,
note 41, at 38-9. In oral uses of language, cointeractants can disambiguate or clarify
utterances be the conversational mechanism of repair, which is not available for written texts,
most of the time. See Emmanuel A. Schegloff, Repair after Next Turn: The Last Structurally
Provided Defense of Intersubjectivity in Conversation, 97 AMERICAN JOURNAL OF
SOCIOLOGY 1295 (1992).
We should also keep in mind that besides being inherent features of any language use,
ambiguity and vagueness are also the products of the very practices used to formulate
meaning in concrete settings, since there is no such thing as an "encoded meaning” in any
text, but rather meaning heuristics that can lead to unpredictable interpretive conclusions. See
Stein, supra, note 18; Joao Pedro Padua, "Apenas encaminhado": Categorizações como
estratégias discursivas de (in)efetivação de direitos fundamentais em uma decisão do
Supremo Tribunal Federal, 4 LANGUAGE AND LAW/LINGUAGEM E DIREITO 60
(2017) (showing how the Brazilian Supreme Court used a discursive technique to formulate
the meaning of a constitutional provision in a way that effectively trumped its plain
meaning). See also Ward Farnsworth et al., Ambiguity about ambiguity: An empirical inquiry
into legal interpretation, 2 J. LEGAL ANALYSIS 257 (2010) (showing how policy
preferences influences how people construe ambiguity in legal texts and how the framing of
the question of ambiguity is also consequential); Gluck, supra note 24, at 1797 (showing how
a specific state high court has used a “low ambiguity threshold” to shape the interpretation of
a statute the way it wanted it to mean).
46
Scalia, supra note 1, at 22.

textualists will normally look for the ordinary meaning of the words and phrases whose
meaning is being analyzed47, emphasizing that “texts should be taken at face value"48.
Of course, textualists recognize that sometimes the reading of the text, aiming at the
ordinary meaning of the words and phrases of which it is composed will not suffice. Again,
Scalia puts it the simplest: "[e]very statute that comes into litigation is to some degree
'ambiguous'"49. While he also points out that “words do have a limited range of meaning, and
no interpretation that goes beyond that range is permissible"50, textualists in general have an
“enriched version of context"51 to which they can turn. They “find no difficulty looking at the
earlier interpretive decisions of courts, background assumptions shared by the relevant
community, constitutional considerations, questions of coherence with related statutes, and a
host of other considerations"52 – including the so-called canons of construction, of which
some textualists, such as Scalia, are especially fond53.
What textualists will not do is look for interpretive aides in the history of the
discussion and enactment of the normative text54. That is what best separates them from
proponents of the other interpretive path, members of which have been dubbed
“purposivists”55, “intetionalists”56 and which I will be calling “eclecticists”, following the
proposition of Breyer57 and Solan58, that members of this group simply have no restrictions as
to which considerations might help determine the correct meaning of normative texts,
whatever “correct” means in the specific setting where the interpretation is being worked out.
47
Id. At 23-4 (discussing his dissent in Smith v. United States, 508 U.S. 223 (1993)); Solan,
supra, note 42 at 79.
48
Abbe R. Gluck and Lisa Schultz Bressman, Statutory interpretation form the inside – An
emprical study of congressional drafting, delegation and canons: Part I, 65 STAN. L. REV.
901, 913 (2013) (quoting John F. Manning, Textualism and Legislative Intent, 91 VA. L.
REV. 419, 424 (2005)).
49
Scalia, supra note 1, at 27.
50
Id. at 24.
51
Solan, supra note 47, at 79.
52
Id. at 52.
53
Scalia, supra note 1, at 25-9. See also Gluck and Bressman, supra, note 49 at 924 ff.
(presenting, defining, and sorting out different types of canons).
54
Manning explains that, “[f]or textualists, legislative history is uniquely problematic
because it permits legislators to create their own context, and thus to influence the details of
meaning outside the process of bicameralism and presentment”. See John F. Manning,
Textualism and the Role of The Federalist in Constitutional Adjudication, 66 GEO. WASH.
L. REV. 1337, 1345 (1998).
55
See Gluck, supra note 24, at 1764.
56
See Solan, supra note 42, at 51.
57
Breyer, supra note 35, at 7-8.
58

Eclecticists will also look for interpretive answers initially in the text. But they
difference themselves from textualists firstly in focus. They will look into "'the words of the
statute . . . so as to carry out the purpose as best [they] can'"59. Secondly, in their search for
the correct interpretation of the normative text, they will take into consideration external
interpretive aides, specifically evidence about legislative history and what that tells about the
intention of its drafters.
Textualists eschew the inquiry into the intention of whatever body was responsible for
drafting the normative text on both conceptual and normative grounds60. Conceptually, they
reject the very existence of an actual unified intention that can be discerned for a body of
diverse congressmen or assemblymen, that might as well have endorsed a particular text for
different reasons and with different purposes in mind61. Normatively, they adopt a
“nondelegation doctrine”, that states that looking in legislative history for the meaning to be
ascribed to the normative text would flout the constitutional requirement for bicameralism
and presentment and would constitute a forbidden "delegat[ion, by Congress] to its own
agents or members the de facto authority to 'say what the law is’”62.
Eclecticists, on the other hand, counter that, when what is said in the normative text is
vague or ambiguous, the only right way to go is to look for the intention of its drafters.
Looking for other sources of meaning – like The Federalist Papers for constitutional
interpretation63 or dictionaries or contemporary commentators – is a de facto much worse
kind of delegation. It delegates meaning settling to sources not vested with democratic and
constitutional authority at all. Also, collective intention is not only an empirical reality64, but
also, the idea that communication was intentional is a necessary condition for any text to
59
Gluck, supra note 24, at 1764 (quoting HENRY M HART, JR. & ALBERT M. SACKS,
THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION
OF LAW 1374 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994)).
60
See, Manning supra note 54, at 1338-42. It should be pointed out that in the same Article,
Manning recognizes that the idea of intent is unavoidable for understanding meaning in legal
texts. He, however, proposes a concept of "objective intent", that relies on what a reasonable
legislature would have wanted the text to mean. See Id., at 1341-2.
61
Id. at 1341; See alson Scalia, supra note 1, at 15-18 (drawing a conceptual distinction
between what was "intended” and what was “said” by the legislature).
62
Manning, supra note 60, at 1338.
63
William N. Eskridge, Jr., Should the Supreme Court read The Federalist but not Statutory
Legislative History?, 66 GEO. WASH. L. REV. 1301, 1303-8 (1998)
64
See Lawrence M. Solan, Private Language, Public Laws: The Central Role of Legislative
Intent in Statutory Intepretation, 93 Geo. L. J. 427, 444-9 (2005).

mean anything65. In other words, meaning is necessarily tied to uncovering a communicative
intent inserted into the words, phrases and their connection in clauses and sentences, even if
this intent is attributed to the drafter by the reader without an actual inquiry as to whether this
was the actual intent of the empirical drafter.
The debate/divide goes on, including with interesting mixed interpretive
methodologies in empirical settings such some States' high courts66, but I do not need to
venture any further into it or the foundations thereof. My goal is to stress that, for all their
different views about the nature of interpretive methods, principles and boundaries, both
textualists and eclecticists agree that the textualization of the norm, i.e. the specific ways in
which the norm was drafted as that specific text and no other, is the primary focus of legal
interpretation67. This focus need to be demonstrably defeated somehow for other foci to be
recruited to help to solve the problem.
Some textualists will use more sophisticated textual analysis, such as an examination
of "the whole statutory scheme, related statutes or the evolution of the statute from previously
enacted versions”68 while other will use "only the simplest of textual tools – some
combination of 'plain text (ordinary reading of the statute), dictionary definitions, and
precedent"69. On the other hand, eclecticists might be more flexible in declaring the ending of
the textual analysis with persisting ambiguity or vagueness and jump into other inquiries,
such as evidence into legislative intent and the general purpose of the statute or constitutional
norm.
However, as Abbe Gluck has put it succinctly, “one would be hard pressed to find any
courts that today, in practice, do not look to text first, even if they do not call themselves
'textualists’”70. Or, as Solan puts it with more detail,
65
Stanley Fish, There Is No Textualist Position, 42 SAN DIEGO L. REV. 629 (2005); Brian G.
Slocum, Pragmatics and Legal Texts: How best to account for the gaps between literal
meaning and communicative meaning, in THE PRAGMATIC TURN IN LAW 119, 119-20
(Janet Giltrow & Dieter Stein, eds., 2017) (although using the concept of "communicative
meaning" instead of “communicative intent”); Recanati, supra note 19, at 110-3 (arguing that
any piece of discourse is semantically underdetermined, which means that evidence of
speaker meaning is always potentially a part of the context necessary to understand it)
66
See Gluck, supra note 24, at 1829 ff. (describing what she identified as a "modified
textualism” as a controlling methodology in at least five states’ high courts).
67
The quote form Solan (supra note 53) is actually not directed at textualists only, but at
“proponents of both approaches”.
68
Gluck, supra note 24, at 1837.
69
Id., at 1837.
70
Gluck, supra note 24, at 1834.

Gone largely unnoticed in the battles between these camps during the
past quarter century is the fact that both sides in the debate agree upon
almost everything when it comes to statutory interpretation. Most of
those whom textualists call “intentionalists” are really not that at all.
Rather, they take a pragmatic, eclectic approach to the interpretation
of statutes, relying upon whatever information appears to provide an
interpretation that is loyal to the language of the statute and the intent
of its drafters and is coherent with the code in general."71
Underlying this text-first-whatever-after approach is a commitment to “legislative

primacy as the core value in . . . interpretation"72 and the role of the Judiciary as a “faithful
agent” of the norm-drafter, a concept that both textualists and eclecticists share73.
It is now proper to state that common law interpretive culture has, as one of its mains
semiotic components, the concept that interpreters in general and courts in particular should
be highly deferential to the normative text and should exhaust its meaning potentials, as best
as they can, before turning to anything else – even if what this “anything else” is is debatable.
As we shall see, this paradoxically contrasts with how Civil Law systems view their
interpretive tasks.
C. Legal interpretation in civil law systems
Civil law systems74 have as its chief source of legal authority the written norms that
come from legislative bodies, whether they are constitutional assemblies or permanent
congresses and parliaments. This comes, historically, in opposition to common law systems,
whose chief source of legal authority was the reiteration of certain substantive legal reasoning
71
72
Id., at 51.
73
See Gluck and Bressman, supra note 49, at 912-5
74
Although I will cite literature from various civil law-based legal systems, I will rely on the
Brazilian literature more specifically – as I did with the US literature at the common law part
of this literature review. Brazil, by the way, is an especially suited legal system to function as
a proxy for the whole of the civil law family, since it has, over the years, been the home of
legal transplants coming from various different legal systems within the family. See Ana
Lucia de L. Tavares, A Constituição Brasileira de 1988: Subsídios para os Comparatistas
["The Brazilian Constitution of 1988: Subsidies for Comparatists”], 109 REVISTA DE
INFORMAÇÃO LEGISLATIVA, 71, 86-103 (1991) (showing different sources for norms
and institutions at the current Brazilian constitution).

through the actual decisions of courts, which, in time, became the source of precedents that
stated what the law was75.
Therefore, it made sense that interpretive theories and methods were developed in
civil law systems for making sense of statute-like legal norms76. The most famous of these
theories came from German legal scholar of French descent Friedrich Carl von Savigny77. In
a theoretical enterprise typical of Modern Civil Law doctrine, Savigny was studying and
systematizing Roman Law concepts and legal norms in order to make sense of 19th Century
German Law. In the modern period, post Liberal Revolutions, civil law systems such as
Prussia’s – later Germany’s -- aspired to achieve the same perceived level of conceptual
greatness as the Romans'78. Savigny proposed that the activity of interpretation contained
four “elements”: grammatical, logical, historical and systematic79.
Originally, these elements were part of an indivisible activity. All legal interpretation
was supposed to have these four elements, although each instance could have a different
focus on one or more of them80. Having been passed on to different generations, however
these “elements” have become sort of four different principles of interpretation and, as such,
75
See DAVID, supra note 20, at 79-85, 324-9; SCALIA, supra note 1, at 3-9. This principle
of how legal norms are spotted and understood is the basis of the Dworkinian concept of
"principles” as a species of legal norm besides “rules”, the latter being more in sync with the
civil law (traditional) conception of a legal norm. See Ronald M. Dworkin, The Model of
Rules, 35 U. CHI. L. REV. 14, 22-9 (1967). Ironically, as we shall see, this theory of
Dworkin’s, even though heavily influenced by the concept of common law legal norms, has
been widely transplanted to civil law systems, especially in constitutional interpretation, after
the II World War.
76
The way normative texts are drafted differ in civil law and common law systems, as I have
already demonstrated. See supra, Part II (B).
77
See FRIEDRICH CARL VON SAVIGNY, SISTEMA DEL DERECHO ROMANO
ACTUAL (1878).
78
On the study of Roman Law to the building of European legal systems in general, through
the Medieval and Modern ages, see PETER KOSCHAKER, EUROPA Y EL DERECHO
ROMANO (1955). That is why Civil Law systems are also called the Roman-Germanic
Family by the comparative law literature. See DAVID, supra note 20.
79
See SAVIGNY, supra note 78, at 149-51. Specifically for Portuguese-speaking legal
systems, see also, Virgílio A. da Silva, Interpretação Constitucional e Sincretismo
Metodológico, in INTERPRETAÇÃO CONSTITUCIONAL 116-117 (Virgílio A. da Silva,
ed., 2005); A. CASTANHEIRA NEVES, METODOLOGIA JURÍDICA: PROBLEMAS
FUNDAMENTAIS 103-106 (1993).
80
See SAVIGNY, supra note 78 at 150 (“Keep in mind that these are not four classes of
interpretation, amongst which one can choose according to one’s taste or caprice, but four
distinct operations, whose reunion is indispensable to interpret the law, even though some of
these elements can have more importance and make itself more noteworthy”).

have also become so widespread that they are now referred to in manuals and textbooks only
by their name, without mention of their origins81.
Savigny has defined the four elements thusly:
The grammatical element […] has as its object the words that the
legislature uses to communicate to us its thinking, that is, the language
of the laws.
The logical element, the decomposition of the thinking or the logical
relations that unite its different parts.
The historical [element] has as its object the state of the law about the
subject at the time when the [new] law has been edited; [it] determines
the manner of action of the [new] law and the change it has
introduced.
[…] the systematic element has as its object the intimate bond that
unites the institutions and rules of law in the base of a whole unity.
These elements have, mostly, maintained their original names and definitions, with
some minor tweaks. Especially, the element Savigny called “logical” is now recognized as
“teleological” and refers more to the motives and aims that underlie the passing of the law in
question. The logical element, for its part, has been incorporated by the grammatical element
in a wholesome consideration of the meaning of the legislative language82.
Differing from the canons of construction of American Law, these elements or
principles of interpretation do not aim to solve specific interpretive problems, but rather to
create a larger principled method for approaching legal texts. Also, they tend to be viewed
not as separate approaches to legal interpretation, in the sense that, say, textual analyses and
legislative materials are viewed by the common law interpretive culture as separate,
sometimes collaborative, sometimes contrastive methods, that might be used in lieu of or to
overcome the insufficiency of one another. Rather, the civil law’s elements or principles of
interpretation are always supposed to be complementary, even if sometimes backgrounded,
principles.
81
See, e.g., ADRIAN SGARBI, TEORIA DO DIREITO: PRIMEIRAS LIÇÕES 530 (2009)
(categorizing these elements as “criteria for interpretation”); DONALD P. KOMMERS, 2
THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF
GERMANY 42-43 (1997) (calling the four-element scheme "the dominant tradition”). Even
the Federal Constitutional Court of Germany has, as early as 1960 proclaimed those four
elements as the basic principles of interpretation of legal norms. See 11 BVerfGE 126, 128
(1960).
82
See Silva, supra note 80, at 116-117; CASTANHEIRA NEVES, supra note 80, at 103-106.
Savigny himself seemed ambivalent about the incorporation of what he called the “motives”
of the law to the logical element of legal interpretation. See SAVIGNY, supra note 78, at
214-218.

Because of this, there is also not a debate among different schools or orientations to
legal interpretation. There are, to be sure, different schools on the nature of the legal
phenomenon and on the study thereof. Echoing a debate also present in the American legal
theory, civil law systems entertain since at least the 19th Century a debate between so-called
legal positivists and jusnaturalists.83 More recently, the place once occupied by jusnaturalists
has been progressively overtook by postpositivists and neoconstitutionalists84.
However, although they do debate about how to best interpret the law and decide hard
cases, this debate is mostly indirect, stemming from the more fundamental debate about the
relationship between law and morality85. Questions of this relationship touch on questions of
interpretation of legal norms, to be sure, but not as discussion about methods or principles of
interpretation per se. Rather they are relevant insofar as they raise issues such as the nature of
legal norms86 and the limits of constitutional adjudication87.
In Civil Law, then, the basic component of the interpretive culture postulates a unified
approach to legal interpretation. However, as the Savignynian concept have evolved inside
the civil law tradition, the four elements, now recognized as separate, have also come to be
viewed as potentially in conflict. Sometimes the teleological element seems not to be served
by the grammatical one. Or the historical element seems to be at odds with the systematic
one. Or some other combination.
83
See Noel Struchiner, Algumas "proposições fulcrais" acerca do Direito: O debate
jusnaturalismo v. juspositivismo, in PERSPECTIVAS ATUAIS DE FILOSOFIA DO
DIREITO 399, 399-415 (Antonio C. Maia et al eds., 2005) (arguing that the debate between
legal positivism and jusnaturalism centered around some of "the basic propositions about the
law”). See also SGARBI, supra note 82, at 692-739; HANS KELSEN, GENERAL THEORY
OF LAW & STATE 3-14; 391ff. (2005).
84
Albert Calsamiglia, Postpositivismo, 21 DOXA 209 (1998).
85
Herbert Hart, tellingly, devoted different chapters of his main book to the relationship
between law and morality (chapter VIII) and the question of jusnaturalism (chapter IX),
versus the issue of legal interpretation (chapter VII). See HEBERT HART, THE CONCEPT
OF LAW (1961). See, however, Manning, supra note 54, at 1341 (explaining that “[the
textualist] assumptions about legislative ‘intent’ correspond significantly to those of modern
positivism”).
86
Such as the debate about rules and principles initiated by Dworkin. See Dworkin, supra
note 75. In the civil law debate, see HUMBERTO ÁVILA, 4 TEORIA DOS PRINCÍPIOS:
DA DEFINIÇÃO À APLICAÇÃO DOS PRINCÍPIOS JURÍDICOS 26-75 (2004) (citing
Dworkin, but relying heavily in the German legal debate centered around jurist Robert
Alexy’s notion of principles as “optimization directives” (Optimisierungsgebote)).
87
See, for a review of literature, both of Civil Law and Common Law, JÜRGEN
HABERMAS, BETWEEN FACTS AND NORMS: CONTRIBUTION TO A DISCOURSE
THEORY OF LAW AND DEMOCRACY 194-287 (1998).

As opposed to what seem to be the case of common law systems – where the faithful
agent metaphor dominates even purposivist attitude towards legal interpretation88 -- the
grammatical element in the civil law tradition seem to be the weakest of the four. That means
civil law jurists will generally be socialized in an interpretive culture that will diminish the
importance of textual analysis and textual meaning, however defined, in interpreting legal
norms. There are two main arguments used to justify this part of civil law interpretive culture.
The first one stems from an ontological understanding of language and meaning that
view language as inherently – and hopelessly – vague or incomplete. For instance, a very
important Italian legal theorist, Ricardo Guastini, that also writes extensively about
comparative issues, readily dismisses the search for a literal meaning in legal texts:
In general terms, by literal or declarative interpretation one can
understand that interpretation that attributes to a [legal text] its
“literal" meaning, that is, the most immediate – the prima facie
meaning as it is usually said – which is suggested by the common use
of words and from the syntactic connections.
This definition fails for lack of rigor, for the simple fact that it is not
possible to establish with clarity what is the literal meaning of the
words; so that is also not possible to draw a precise line of separation
between the literal interpretation and other types of interpretation. The
literal meaning, in fact, is a variable dependent on the linguistic
competence and on the linguistic intuition of each one. As such, it is
something highly subjective.89
The assumed impossibility of finding a literal, ordinary meaning in ontological

grounds is reinforced, in part of the Civil Law doctrine, by a normative conception that
proposes that even if literal meaning could be found, it should be trumped by some ad hoc
meaning that develops out of considering the aspects of the case being decided, some
conception of justice, and/or the purpose of the law as a whole. That view understands the
limiting of legal reasoning and interpretation to the meaning of text as a limit also in the
possibility of reaching a just decision for each case and so, as a formalism in a bad sense.
Consider how a Portuguese legal theorist frames the matter:
[T]he emphasis on the "teleological element” – that is the practical-
normative comprehension and not only historical-philological or
analytical-dogmatic of legal norms – implies the abandonment of a
88
See supra note 73 and accompanying text.
89
Ricardo Guastini, Introducción a las técnicas interpretativas, in DISTINGUIENDO:
ESTUDIOS DE TEORÍA Y METATEORÍA DEL DERECHO 211, 212 (Ricardo Guastini,
ed., 1999).

purely hermeneutic sense (hermeneutic-exegetic) and the assumption
of truly normative sense (practical-normative) in legal interpretation.90
Connected to this last point, the second argument against much concern with literal
meaning comes from a peculiar way of understanding the application of constitutional norms
and the framing of constitutional questions as interpretive questions. In the common law
tradition, constitutional and statutory interpretation are separated as distinct enterprises, even
if derived from the same conceptions of legal norms and interpretive methods. As such, either
a case is about statutory interpretation or about constitutional interpretation. The only way the
two intersect is through judicial review. Even then, either the statute in question is
unconstitutional and therefore void, or it is constitutional and therefore must be applied as
interpreted by the courts91.
In the Civil Law tradition, a case can be both about constitutional interpretation and
about statutory interpretation, even when the constitutionality of the statute is not really being
litigated. To understand this, we first need to understand how contemporary civil law
constitutional law has framed the specificity of constitutional interpretation. Stemming from
German concepts and the precedents that the Federal Constitutional Court in Germany has
developed right after its creation in 195192, most of the Civil Law systems have accepted the
90
CASTANHEIRA NEVES, supra note 80, at 108. See also KOMMERS, supra note 82, at
42 (calling the "teleological, or purposive, analysis" a “favored form of judicial reasoning in
Germany”); Solan, supra note 4, 1168-9.
To be sure, this in not uniform in civil law doctrine. Some more recent theorists have begun
advocating for a return to some form of literalism, sometimes using US legal doctrine. See,
e.g., Noel Struchiner & Fabio P. Shecaira, A Distinção entre Direito e Moral e a Distinção
Moral do Direito, 22 REVISTA DE DIREITO DO ESTADO 131, 140-4 (2012).
91
It may be argued that, sometimes, the courts in the common law system – at least in the
U.S. Common Law system – will pointedly intermesh constitutional and statutory questions
when, for instance, they refuse to adopt one possible interpretation from the ordinary
meaning of a statute because that meaning would clash with some constitutional norm (See,
ex. gr., McDonnell v. United States, 136 S.Ct. 2355 (2016) (refusing to adopt a broad
meaning of “official act” in the Federal Bribery Statute, because that would raise Due Process
and Federalism concerns)). Even in those cases, however, there are two distinct normative
“decoding” operations. First, the statute is (textually) interpreted. Then, the Constitution is
(mostly textually) interpreted. Then the two are compared and, if there is also a different
possible interpretation of the statute that would not clash with the constitutional parameter, it
is automatically preferred, saving the court from engaging in the use of further textualist or
eclecticist interpretive aids to solve the ambiguity. (See Id., at 2372-3). As we shall see next,
in the civil law contemporary constitutional adjudication, even unambiguous statutes may
have its agreed-upon meaning judicially changed, because of the broad use of some
constitutional parameter, even an indirect one.
92
See KOMMERS, supra note 82, at 15.

doctrinal proposition of a specific type of interpretation, suited for constitutional norms.
Although the underlying motives for the necessity of a specific set of methods and principles
to interpret constitutional norms are not different from those usually invoked by common law
doctrine93, both the history and the objective of these sets and methods are different.
Historically, this doctrine gained traction after World War II. Deriving its arguments
from a view that formalism and positivism provided legal bases for the Nazi regime94, these
so-called “neoconstitutionalists” called for a "constitutionalization of the legal order, after
which the [legal] order in question becomes totally impregnated by constitutional norms"95.
So, in the civil law tradition, one postulates two different waves of constitutionalism. The
first one, when the first modern constitutions – including the US Constitution – were drafted
and a second one, after WWII.
In terms of objectives, this new wave of constitutionalism was supposed to be
different from the first one, in that contemporary constitutions would have more normative
effect and would extend its scope from just the institutional design of government and its
bodies and some basic civil liberties against the state to a more comprehensive set of rights
and quasi-moral principles that should substantively ground the (new) constitutional states96.
Especially in Germany, this new constitutionalism would view in the constitution not just a
system of norms, but also an "objective order of values"97, that could be invoked from the
textual norms, whenever the law – mostly through the courts -- had to settle a basic ethical
question regarding the functioning of the state and society as a whole98.
This way of understanding the new constitutions lead to the formulation of a specific
doctrine to interpret it, since these constitutions would be different from old constitutions and
form other legal rules, especially statutes. This doctrine of constitutional interpretation would
start from the four-element conception of the 19th Century, but would also append other
principles to it. In the words of a Justice of the Brazilian Supreme Court,
The idea of a new constitutional interpretation is likened to the
development of some original formulas for the concretization of the
will of the constitution. It does not result in despise or abandonment of
93
94
See KOMMERS, supra note 82, at 47.
95
Ricardo Guastini, La Constitucionalización del Ordenamiento Jurídico: El Caso Italiano,
in 2 NEOCONSTITUCIONALISMO(S) 49, 49 (Miguel Carbonell, ed., 2005).
96
Id., at 52-3.
97
See KOMMERS, supra note 82, at 47-8.
98
Hence what Guastini, supra note 82, at 53-5, called an "overinterpretation of the
constitution".

the classic method – the subsumptive, grounded in the application of
rules – nor of the traditional elements of hermeneutics: grammatical,
historic, systematic and teleological. On the contrary, they continue to
play an important role in the search of sense of norms and the solution
of concrete cases. Relevant, but not always sufficient.
Even in the framework of traditional legal dogmatics, there have
already been systematized various specific principles of constitutional
interpretation, for the purpose of overcoming the limitations of
conventional legal interpretation, conceived mostly in function of
statutory law, and more specifically private law.99
The same author proposes six “instrumental principles of constitutional
interpretation”: “principle of constitutional supremacy”, “principle of presumption of
constitutionality of statutes and act of government”, “principle of the unity of constitution”,
"principle of effectiveness” and “principle of constitution conformant interpretation”100.
Although these are not methods, but principles of interpretation – their so-called
"instrumental" character notwithstanding --, they point to the way the Civil Law tradition of
neoconstitutionalism conceives of constitutional interpretation.
Nevertheless, and here is the main point, constitutional interpretation does not matter
only to constitutional norms. One of those principles is the “principle of constitution
conformant interpretation”. It was originally created in a 1953 decision by the German
Federal Constitutional Court, when it evaluated the constitutionality of a statute that limited
the freedom of movement of citizens from soviet-controlled East Berlin to West Berlin101. In
partially accepting the constitutional challenge to the statute, the Court stated that there were
multiple possible interpretations to the statute and its limitations to the freedom of movement,
but one of them was "conformant to the constitution” (Verfassungskonforme). So, in
99
Luís R. Barroso & Ana P. de Barcellos, O Começo da História. A Nova Interpretação
Constitucional e o Papel dos Princípios no Direito Brasileiro, in A NOVA
INTERPRETAÇÃO CONSTITUCIONAL 327, 331 (Luís R. Barroso, org., 2006). The use of
the concepts "rules” and "subsumptive method" is a reference to Ronald Dworkin’s theory of
legal norms. See Dworkin, supra note 76.
100
Id., at 359-64. See also Silva, supra note 80, at 118 (arguing that these principles are
actually a doctrinal transplant from a textbook of a single German author, Konrad Hesse, and
criticizing the Brazilian doctrine for parroting German doctrine without realizing it).
Notice how some of these principles correspond to constitutional concepts of the American
constitutional doctrine, although they are framed different there. Some would be substantive
canons of construction (e.g. presumption of constitutionality), some would be just basic
concepts (e.g. supremacy of the constitution). See infra note 106 and accompanying text.
101
2 BVerfGE 226 (1953)

maintaining the stability of the legal system and the principle of presumption of
constitutionality, this interpretation should be chosen as the only one.
In this definition, this principle is similar to what the U.S. Supreme Court often does
in statutory interpretation102. Since its inception, however, the use of this principle has given
the Court the power to, “in fact take […] the function of a corrector [of] the legislature”103.
Although the constitution conformant interpretation is not supposed to rewrite the norm or
expand meaning in a way not permitted by the semantic limits thereof, “quite frequently, the
limits […] are not observed. […] ‘Practice in fact shows that the constitution conformant
interpretation is almost always the remoter interpretation that is often artificial and moves
further away from the conception of all the parties involved.’”104
Coupled with the consideration of the constitution as a source of an objective order of
values, the principle of constitutional conformant interpretation actually allows civil law
courts that adopt these concepts to effectively put aside parts of statutes that are seen as not
compatible with the constitution and substitute them with new words, phrases and meanings.
Literal meaning of the words in this context become secondary, since the courts claim a
prerogative to in effect forget about them, so as to find an interpretation that fits with
constitutional values105. Although most courts will not candidly acknowledge they are doing
102
See supra note 91.
103
Andreas Voβkuhle, Theorie und Praxis der Verfassungskonformen Auslegung von
Gesetzen durch Fachgerichte, 125 ARCHIV DES ÖFFENTLICHEN RECHTS 177, 182
(2000)
104
Matthias Jestaedt, The Constitution Conformant Interpretation – Norm Conpatibilisation
through Harmonisation by way of Interpretation, in RELATIONSHIP BETWEEN THE
LEGISLATURE AND THE JUDICIARY 25, 31 (Alexander Burns et al, eds., 2017).
105
That is, in fact, what the Federal Constitutional Court did in its leading case of the
constitution conformant literature. See supra, note 101 and accompanying text. The Court
construed the general limits the statute imposed on traffic between East and West Berlin as
demanding a procedure to authorize such traffic, which authorization could only be denied
when the government could show that the person applying for it presented a danger to public
safety. These requirements for the authorization procedure and limits for denials thereof were
not part of the statute, but were part of the constitutional codification of the freedom of
movement (Recht auf Freizügigkeit). Hence, the Court just morphed them together, creating,
in effect, a new statute. See 2 BVerfGe 226, 236 (1953).
Note that this is a different procedure from, say, the one the US Supreme Court used in
deriving a mandate to a specific set of warnings from the privilege against self incrimination
stated in the 5th Amendment. See Miranda v. Arizona, 384 U.S. 436 (1966). There, there was
a question of the direct application of semantically open constitutional clauses to a specific
set of cases. There was no statute being interpreted in light of, or “conformant to”, the Fifth
Amendment. Both procedures are arguably the creation, rather than mere interpretation of,
legal norms. But they operate differently.

it, this procedure amounts to a covert rewriting of parts of the statute, with the avowed aim of
saving its constitutionality106.
Taken as two consecutive conceptual moves, civil law legal systems have first
conceived the language of legal norms as by nature and hopelessly vague, implying that a
general reliance on textual analysis and literal meaning is set to failure, and suggesting
instead a priority to the teleological element of interpretation. Following that, they have more
recently conceived that post-war constitutions, in codifying an objective order of values,
authorize the virtual amendment of statutes and other legal norms, especially by way of the
constitution conformant interpretation, whenever their meaning – even a remote one, given
the semantic potential of the text -- is construed to be at odds with said values. Since this
way of constitutional interpretation can be applied to any inferior legal norm, statutory
interpretation also become always constitutional interpretation, at least potentially. A court
can always invoke some constitutional norm or its underlying value to present a meaning of a
statute, among its various possible ones, as the only constitutionally acceptable interpretation.
So it is now proper to state that civil law interpretive culture has, as one of its main
semiotic components, the concept that interpreters in general and courts in particular,
although in principle bound by legal norms enacted by legislative bodies, are authorized –
indeed obligated – to probe into the meaning potential of those norms, given that they are by
definition undetermined, so as find the best way to promote the purposes of each norm and
the constitutional values that may be relevant to the meaning construction of that legal norm
vis-à-vis the case in point. In doing so, interpreters and courts are authorized to put in second
place the inquiry into the literal meaning of the norms they are interpreting107.
106
Consider a case in the Brazilian Supreme Federal Court where a Civil Code provision that
recognized “civil unions between a man and a woman” was subjected to a constitutionally
conformant interpretation that resulted in the provision being construed as to also protect
same-sex civil unions, effectively either eliminating the “between a man and a woman”
phrase or adding phrases such as “and between a man and a man or a woman and a woman”.
STF, ADI 4277, rel. Min. Carlos Britto, plenary, publ. 05/05/2011 (unanimous).
Needless to say, this comment does not amount to a criticism of same-sex unions or
marriages, but only an extreme-case example of the interpretive potential of the principle of
constitution conformant interpretation.
Also, compare this rewriting of the statute on constitutional grounds with how the U.S.
Supreme Court did effectively the same thing, but by declaring all laws that prohibited or
failed to regulate same-sex marriages to be unconstitutional, because of violation of th
Fourteenth Amendment due process clause. Obergefell v. Hodges, 135 S.Ct. 2584 (2015).
107
This conclusion contradicts one famous international study on statutory interpretation
involving the analysis of interpretation methods of the high courts in nine different countries,
including the UK and US and seven civil-law systems. See Robert S. Summers & Michele

IV. CASE STUDIES
A. Objectives and methodology
Having reviewed the literature and fixated the main semiotic components of the
interpretive culture of common law and civil law legal systems, it is time to make the
concepts more concrete, by showing how these two interpretive cultures apply in specific
cases where the interpretation of legal norms is in dispute.
My objective is to demonstrate empirically the somewhat surpising theoretical
conclusion at which I arrived by reviewing the literature, to wit that common law legal
systems, although built upon the work of judges and courts in figuring out legal principles for
specific cases has evolved into an interpretive culture fixated mostly in devising meaning of
legal texts by closely scrutinizing its surface linguistic choices; whereas civil law legal
systems, although built upon the exegesis of general and abstract written legal norms by
constrained courts has evolved into an interpretive culture that leaves the text to the
background while pursuing ethical discussions about normative purposes and values
underlying generally worded constitutional norms.
I shall do that by studying four cases, two cases for each legal system, one
constitutional and one statutory. Even though I have argued above that, as a culture, legal
interpretation can be viewed as a macro-category108, encompassing the interpretation of
constitutional norms, statutes and other legal documents, from a participant's perspective109,
Taruffo, Interpretation and Comparative Analysis, in INTEPRETING STATUTES: A

COMPARATIVE STUDY 461, 465 (D. Neil MacCormick & Robert S. Summers, eds.,
2016) (arguing that interpretation based on ordinary or technical meaning of the words
contained in the statutes are “[decisive] and wide-ranging” in "[a]ll systems in our study”).
The discrepancy between that study and mine may be derived from the aim in that study to
find universal arguments used in statutory interpretation in virtually any Western legal
system or on the method of “rational reconstruction” the study employed, or on the fact that
the study was actually developed in the 1980s, when the constitutional adjudication doctrine
on post-war civil law legal systems was not yet fully systematized. See Zenon Bankowski et
al, On method and Methodology, in INTEPRETING STATUTES: A COMPARATIVE
STUDY 9 (D. Neil MacCormick & Robert S. Summers, eds., 2016).
Whatever the reason for the different conclusions, our literature review and the case studies
below show that common law and civil law systems approach legal texts differently, with
common law systems more deferential to textual analysis and word meaning than civil law
systems.
108
109
On the importance of alternating between the observer and the participant position to legal
theory, see Jürgen Habermas, A Short Reply, 12 RATIO JURIS 445 (1999).

jurists tend to understand their task differently if they are dealing with the interpretation of
the Constitution or some statute110. Also, since my aim is to demonstrate the operation of the
two interpretive cultures, it makes sense to show that this operation is constant in any
interpretive setting.
The four cases were selected, first, because they are cases about disputed
interpretation of legal texts, not about doctrines or principles of specific areas of the law. And
second, because their result was highly contested inside each court – they are all majority
cases, by narrow margins – and also potentially outside each court, as the results themselves
are based on controversial interpretive grounds.
Methodologically, I will describe in detail each case, the legal controversy in them
and the legal norm(s) discussed111. I will also be using topic selection and topic progression
(or topic chain) analysis. This kind of analysis have been linked, in the literature of discourse
analysis112 and applied linguistics to legal contexts (also called Forensic Linguistics)113, to the
identification of sense-making and agenda-setting processes in the writing of texts and in the
making of conversational contributions. The way a speaker or a writer assembles the different
topics s/he feels are needed to construct an argument gives us information about how s/he
perceives the discursive needs of the setting and type of texts s/he is assembling. In turn, this
perception can be traced back to the interpretive culture that underlies the reasoning and the
(discursive) actions of the social actor – in our case, the judge(s). This circular movement
between social protocols or patterns, social actions and the practical reasons for doing what
the actor is doing is what Garfinkel114 has called the reflexivity of social action and it is this
110
This is more true for the American jurist and less true for the Brazilian jurist, since, as I
have showed (supra note 101 and accompanying text), civil law systems of the post-WW II
can enmesh a discussion of constitutional norm and constitutionally recognized values also in
statutory cases. However, even in Civil Law systems, sometimes the case is only about the
interpretation of constitutional norm, which justifies the selection criterion I made.
111
See Gluck, supra note 24, at 1773-5 (proposing the “close reading of cases” as a method
of legal analysis).
112
See JAMES PAUL GEE, HOW TO DO DISCOURSE ANALYSIS: A TOOLKIT 64-8,
142-8 (2011) (demonstrating how the choosing of topics and chaining of them demonstrates
how the main sense of texts is developed and worked out cohesively, albeit with a narrower
definition of “topic” than I am using here).
113
See Roger W. Shuy, Discourse Analysis in the Legal Context, in HANDBOOK OF
DISCOURSE ANALYSIS: SECOND EDITION 822, 827-31 (Deborah Tannen et al., eds.
2015) (discussing topic progression as evidence of coconversationalists agendas and
communicative intentions)
114
See Garfinkel, supra note 6.

reflexivity than shows the analyst how cultural semiotic resources organize themselves and
the social action based therein.
As I said, I am using cases from the U.S. Supreme Court and the Brazilian Federal
Supreme Court (Supremo Tribunal Federal). U.S. and Brazil function as proxies for common
law and civil law legal systems. This is a limitation of the extrapolation one can make of the
case studies that follow, but it does not invalidate their value as examples of each interpretive
culture.
Since I assume possible readers from both common law and civil law traditions, I will
also explain the case and its background, knowing it will be superfluous information for some
readers.
I will discuss the four cases together in a Part V of this Article.
B. Legal Interpretation in the US Supreme Court

1. DC v. Heller – making the constitution speak (in surprising ways)
In the 1970s, after “extensive public hearings and lengthy research” at a council
committee, DC legislature passed legislation that severely limited the possibility of someone
lawfully owning a handgun within the district115.One piece of legislation required "a license
from the District’s chief of police in order to carry a ‘pistol’ […] anywhere in the District”116.
Another required “that the lawful owner of a firearm ke[pt] his weapon ‘unloaded and
disassembled or bound by a trigger lock or similar device’, unless it [was] kept at his place of
business or being used for lawful recreational purposes”117. A third piece prohibited “(in most
cases) the registration of a handgun within the District", and “because registration is a
prerequisite to firearm possession, […] the effect of this provision [was] generally to prevent
people in the District from possessing handguns”118.
The case centered around a lawsuit initially brought in 2004 by Heller, "a D.C. special
police officer authorized to carry a handgun while on duty”, that, after being denied by the
District a registration certificate that would allow him to have a gun at home, asked the
District Court, “on Second Amendment grounds, to enjoin the city from enforcing the bar on
the registration of handguns, the licensing requirement insofar as it prohibits the carrying of a
115
DC v. Heller, 128 S.Ct. 2783, 2854 (2008) (Breyer, J., dissenting)
116
Id., at 2853 (Breyer, J., dissenting).
117
Id. (Breyer, J., dissenting)
118
Id., at 2854 (Breyer, J., dissenting).

firearm in the home without a license, and the trigger-lock requirement insofar as it prohibits
the use of ‘functional firearms at home’"119. Heller lost at the District Court, but the Court of
Appeals for the D.C. Circuit reversed, and the case was appealed to the US Supreme Court.
In ruling the case, the majority opinion, written by Justice Scalia, after briefly
presenting the facts of the case, dealt with the language of the Second Amendment, beginning
with quoting its text120. The first rhetorical move the majority opinion did was the now
famous splitting and classifying of said text:
The Second Amendment is naturally divided into two parts: its
prefatory clause and its operative clause. The former does not limit the
latter grammatically, but rather announces its purpose. The
Amendment could be rephrased, “Because a well regulated Militia is
necessary to the security of a free State, the right of the people to keep
and bear Arms shall not be infringed”.121
This and related arguments regarding the textual – i.e. syntactic – structure of the
Second Amendment have been criticized in both linguistic122 and rhetorical123 grounds,
including the accusation that Scalia has sharply departed from its typical
textualism/originalism in devising, outside the express text of the Amendment, an almost
natural right of self-defense124. These issues and the merits of the case and its decision need
not concern us here.
What instead interests me is the format the majority used in constructing its
reasoning. So, let me return to how the topics of the reasoning progress. Of the 34 pages of
119
Id., at 2788.
120
Id., at 2788.
121
Id., at 2789.
122
See Jeffrey P. Kaplan, Unfaithful to Textualism, 10 Geo. J.L. & Pub. Pol'y 385 (2012)
(arguing that the interpretation of the first clause of the Second Amendment by the majority
in Heller is misguided by the linguistic nature of the absolute form of the verb that it
contains); Pamela Hobbs, Not semantics but just results: The use of linguistic analysis in
constitutional interpretation, 44 J. PRAGMAT. 815, 822 (2012), (criticizing the reading made
by Justice Scalia as a “context-free approach”).
123
See Peter Brooks, Law and Humanities: Two Attempts, 93 B. U. L. REV. 1437, 1437-53
(2013) (criticizing the "putative return to the past” in Scalia’s version of an “original
textualism” in Heller).
124
Heller, at 2801 (arguing that “[t]he prefatory clause does not suggest that preserving the
militia was the only reason Americans valued the ancient right; most undoubtedly thought it
even more important for self-defense and hunting. But the threat that the new Federal
Government would destroy the citizens’ militia by taking away their arms was the reason that
right – unlike some other English rights – was codified in a written Constitution").

the majority opinion's legal reasoning125, the first 14126 are basically dedicated to discuss and
dissect the text of the Second Amendment, including such topics as the distinction between
the "prefatory” and “operative” clauses127, the analysis of the phrases of the "operative
clause"128, then of the “prefatory clause”129 and the fit between the two clauses130. Even the
next topics, which do not directly analyze the text of the Second Amendment, frequently deal
with its meaning indirectly, by, for instance, addressing contemporaneous commentators to
the Constitution131, or decisions of other contemporaneous courts132, in typical originalist
fashion. There is also indirect consideration of the meaning of the text when specific U.S.
Supreme Court precedents are glossed over133. It seems right to say that there are only a few
topics not directly or indirectly dedicated to the task of finding the textual meaning of the
Second Amendment -- for example, when the topics of handguns or long guns134, or of the
effects of the prohibition of handgun in the right of self-defense135 are addressed.
In Heller, the way the opinion of the court begins with a detailed analysis of the text
structure and textual meaning and stays with is for the most part of said opinion demonstrates
how the majority, represented by Justice Scalia, perceived their main rhetorical duty to be
with the textual meaning of the Second Amendment itself. In other words, the argument of
the majority needed to be centered around showing how the decision the Court was taking
was consistent with that textual meaning, however it may have been construed or however
one might agree or not with this reasoning. This seems especially remarkable, since this case
was all about the construction of the meaning of a constitutional norm, which, among jurists,
is conventionally perceived to be drafted in open-textured and long-lasting ways136, so that
the fidelity to the specific meaning of words and phrases is generally viewed to be less
crucial than with statutory interpretation.
125
Id., at 2788-822.
126
Id., at 2788-802.
127
Id., at 2789-90.
128
Id., at 2790-7.
129
Id., at 2799-801.
130
Id., at 2801-2.
131
Id., at 2805-7
132
Id., at 2807-9
133
Id., at 2812-6
134
Id., at 2818
135
Id., at 2822
136
Even if the empirical truth of this perception is open to debate. See supra, note ___ and
accompanying text.

We shall now turn, then, to statutory interpretation, where we will see that this focus
on the text of the norm is, as excepted, even more pronounced.
2. Yates v. U.S. – when tangible objects become tangible doctrines
In 2007, a commercial fishboat, whose captain was Yates, was fishing in the Gulf of
Mexico, when an Officer from a Florida agency to preserve wildlife inspected the boat and
“noticed three red grouper that appeared to be undersized hanging from a hook on the
deck”137. The officer made a thorough inspection of the boat’s catch and set aside various fish
that also appeared undersized. Then, he “directed Yates to leave the fish, thus segregated, in
the crates until [the boat] returned to the port”138. However, Yates directed the crew to throw
the segregated fish overboard. Because of that, Yates was indicted and eventually convicted
of two crimes, one of which was the §1519, entitled “Destruction, alteration, or falsification
of records in Federal investigations and bankruptcy”139. Yates argued that his actions were
not within the scope of that statute, but lost at the Trial Court and at the U.S. Court of
Appeals for the Eleventh Circuit.
Section 1519, the core of the interpretive discussion in Yates, reads:
Whoever knowingly alters, destroys, mutilates, conceals, covers up,
falsifies, or makes a false entry in any record, document, or tangible
object with the intent to impede, obstruct, or influence the
investigation or proper administration of any matter within the
jurisdiction of any department or agency of the United States or any
case filed under title 11, or in relation to or contemplation of any such
matter or case, shall be fined under this title, imprisoned not more than
20 years, or both.140
The discussion centered around whether the action Yates took, i.e. throwing fish that
would be used as evidence in federal proceedings against him overboard, was within the
meaning of the clause of the statute that defined the criminal conduct, i.e., " [w]hoever
knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in
any record, document, or tangible object […]". Specifically, the discussion centered around
whether the fish fell within the scope of "tangible object” for the purposes of characterizing
137
Yates v. United States, 135 S.Ct. 1074, 1079 (2015)
138
Id.
139
18 U.S.C. § 1519.
140
Id.

the offense in Yates conduct. As the Court summarized, the argument of the government was
that “[t]he words of § 1519 […] support reading the provision as a general ban on the
spoliation of evidence, covering all physical items that might be relevant to any matter under
federal investigation."141 Yates, on the other hand, “urge[d] a contextual reading of § 1519,
tying 'tangible object’ to the surrounding words, the placement of the provision within the
Sarbanes-Oxley Act, and related provisions enacted at the same time […]."142 Because of
that, Yates "maintains [that Section 1519] targets not all manner of evidence, but records,
documents, and tangible objects used to preserve them, e.g. computers, servers, and other
media on which information is stored”.143
The court, through a 5-4 majority, sided with Yates and reversed his conviction on the
§ 1519 charge. However, as with Heller, our attention should not focus on the merits of the
case, but rather on the rhetorical and discursive methods used to justify the decision. For, as
with Heller, Yates was ultimately decided, and argued on, textual bases, not policy or other
normative considerations.
The opinion of the Court, after telling the story of the case and fixating the
controversy between the two parties, immediately went on to discuss the textual meaning of
the phrase “tangible object”. In fact, it started with the dictionary definition of the phrase, in
search of its ordinary meaning.144 It then proceeded to list arguments about how to find that
meaning, using "the specific context in which that language is used”145, and to list precedents
about find meaning in context146 and comparing different uses of the same phrase in different
statutes147. It then moved to using “interpretive guides”148 to ascertain the meaning of
"tangible object”, namely, the section’s caption149, its placement within Title 18 of the U.S.
Code150, the noscitur a sociis canon151, the relation between the argument “tangible object”
and “the list of actions § 1519 proscribes”152 and, finally, the ejusdem generis canon153.
141
Yates, 135 S.Ct. at 1081.
142
Id.
143
Id.
144
Id.
145
Id.,at 1082
146
Id.
147
Id., at 1082-3, 1087.
148
Id., at 1083.
149
Id.
150
Id.
151
Id., at 1085-6.
152
Id., at 1086.
153
Id., at 1086-7.

The only part of the opinion that does not directly deals with tools, methods and
arguments to find the textual meaning of phrases from § 1519 is the last topic, when the
Court invoked the rule of lenity, a so-called "substantive canon of construction” – as opposed
to the "procedural canons"154 –, and a little earlier, when, while formulating the meaning of §
1519, the Court interspersed the more linguistic reasoning with some normative reasons, such
as the invocation of the Bond precedent155.
Again, as in Heller, topic selection and progression shows that the perceived way to
approach the legal problem under scrutiny was to ascertain the meaning of disputed words
and phrases, even if the case could also, like Bond, give rise to all sorts of normative – legal
and moral – questions about the limits of criminal law and the proper use of broadly defined
statutes, that abuse the listing of verbs and arguments. Normative considerations seemed to
be on the background, as evidenced by late invoking of the rule of lenity, which seemed
unwarranted by the previous exhaustive construction of the meaning of “tangible object”156.
However, these considerations were never controlling of the reasoning of the Court. From the
beginning of the opinion, this was framed as an ordinary meaning problem and progressed
through various discursive and rhetorical moves typical of textualist reasoning: dictionary
definitions, comparing of the phrases in different parts of the same statute and different
statutes, procedural canons of construction, and so on.
Taken together, Yates and Heller suggest that even in hard cases, where moral import
seem strong, the Court still shows a dominant preoccupation with framing the question as one
154
See Solan, supra note 41, at 75; Gluck & Bressman, supra note 49, at 924.
155
See Bond v. United States 134 S.Ct. 2077 (reversing a conviction under a statute designed
to fight terrorism of a biologist who used a toxic agent in a mild dose to cause a rash in her
husband's lover, because that would amount to a "boundless reading of a [penal] statutory
term). It should be noted that while Bond did make normative claims about the correct ways
to apply criminal statutes, it was ultimately decided on the basis of an ambiguity construed on
the phrase “chemical weapon", and that said "ambiguity derives from the improbably broad
reach of the key statutory definition given the term —'chemical weapon'—being defined").
Id., at 2090.
The conjunction of linguistic and normative reasons to construe meaning in normative texts
is, by the way, exactly what Eskridge and Levi proposed is the common method for
normative construction, for which they coined the concept “regulatory variables”. Eskridge &
Levi, supra note 44.
156
See Solan supra note 41, at 115-22 (showing how since the Rhenquist Court, the U.S.
Supreme Court used the rule of lenity only after a thorough inquiry into the meaning of the
text is futile in eliminating vagueness or ambiguity). This late appeal to the rule of lenity, by
the way, was criticized by the minority opinion, exactly because there were no doubts about
the meaning of “tangible object”, neither in the reading of the majority, nor in the reading of
the minority. Yates, 135 S.Ct., at 1098 (Kagan, J., dissenting).

of uncovering the real meaning of the text, be it a text from the Constitution or some statute.
Other considerations, while pertinent, are background issues that only come to the fore to
confirm that the textual argument is the correct one also from a more normative-oriented
perspective.
They also show that, as the literature pointed, the focus on textual analysis, at least as
a necessary first discursive move, did not depend on the ideological leaning of justices.
Heller was decided by a standard ideological divide and the majority opinion was written by
a conservative Justice. But Yates was not. Actually, it pitted liberals against liberals and
conservatives against conservatives, with the majority opinion being written by the liberal
Justice Ginsburg and the main dissent written by the also liberal Justice Kagan.
We will come back to this from a more systematic and comparative perspective later.
For now, we shall see how the Brazilian Supreme Court decides their cases, when the
meaning of a norm is in discussion.
C. Legal interpretation in the Brazilian Federal Supreme Court (Supremo Tribunal Federal)
1. Preliminary remarks on the Brazilian Federal Supreme Court
The Brazilian Federal Supreme Court – which I will henceforth refer to by the
acronym "STF”, the common way it is referred to in Brazil – was modeled after the U.S.
Supreme Court in the first Republican Constitution of Brazil, that went into effect in 1890. It
has since changed in institutional design, but mainly to incorporate under its jurisdiction
powers usually granted to Constitutional Courts in Continental Europe (and some other
countries, like Columbia)157.
Under the current institutional design, from the latest Brazilian Constitution, enacted
in 1988, the STF has most of the main jurisdiction the U.S. Supreme Court has, plus
jurisdiction to adjudicate over the abstract constitutionality of Federal and State statutes. The
STF is, at the same time, the highest federal court of the Land and a sort of Constitutional
Court. In the cases we will see below, we are going to be considering only cases the STF has
decided in its capacity as the highest court of the Land.
Consider also, as we have noted before, that, because of the way in which the
relationship between constitutional and statutory law is conceived of in Brazil – following,
again, Continental European legal systems --, any statutory case can potentially be a
157
See, generally, LOUIS FAVOREU, LES COURS CONSTITUTIONNELLES (1996).

constitutional case as well158. I tried to select two cases that, to the most part, were framed, by
the STF itself, as predominantly constitutional or predominantly statutory.
Consider, finally, that STF cases do not have names as their primary reference.
Rather, they have a sequential number, prefaced by a code or the name of the type of case.
The constitutional case we will analyze is a habeas corpus petition and the statutory case is a
criminal investigation of a congressman – that, under Brazilian Constitution has to be
presented directly before the STF, according to an institute that can be translated as special
function jurisdiction (foro especial por prerrogativa de função).
2. Habeas Corpus 126292 – what the Constitution says in not in the text
The Brazilian Constitution of 1988 has a norm that states "Nobody will be considered
guilty until all the appeals against a guilty sentence are denied or have run out”159, which is
referred to in Brazilian constitutional and criminal doctrine as the principle of presumption of
innocence. Habeas Corpus 126.292 dealt with the case of a person convicted of Aggravated
Robbery in the State of São Paulo. The trial court convicted the defendant, but granted him
the right to stay in liberty pending appeal. The São Paulo Court of Appeals affirmed his
conviction and ordered him to begin serving his sentence. He appealed again, this time to a
Brazilian High Court of Appeals (Superior Tribunal de Justiça)160 on statutory grounds and
also asked this court to issue a stay of the arrest warrant pending this appeal. The stay was
denied, which prompted him to appeal again, this time to the STF, again asking for a stay of
the arrest warrant. The stay was initially granted by the Minister – the title of judges of the
STF -- that was responsible for the case.
On the final judgement, however, this Minister, followed by the majority of his
colleagues (seven out of eleven) denied the appeal and affirmed the decision of the São Paulo
Appeals Court, therefore ordering the defendant to begin serving his sentence, even while his
158
159
Article 5th, item LVII (My translation). In Portuguese: “Ninguém será considerado
culpado antes do trânsito em julgado de sentença penal condenatória”.
160
In the Brazilian court system, decisions by all courts of appeals, Federal or State, are
subjected to recourse to a High Court, that adjudicates on most statutory issues, and the STF,
that adjudicates on most constitutional issues. High Court decisions are, sometimes,
appealable to the STF, mostly on constitutional grounds, but sometimes also on statutory
grounds.

appeal to the High Court on the statutory question (not important to the present discussion)
was still pending.
The legal discussion on the STF decision was about the meaning of Article 5th, item
LVII of the Brazilian Constitution, quoted above. Specifically, whether it forbade the serving
of a criminal sentence while there were still appeals pending before the High Court or the
STF itself. Under Brazilian doctrine, this serving of a criminal sentence while there were
appeals pending is called “provisional penal execution” (execução penal provisória)
Unlike what we have seen in U.S. Supreme Court decisions, the first discursive move
of the opinion of the Court in this case was not about the framing of the textual issue
litigated, but rather about the framing of the normative values that underlain that text:
The theme related to the provisional penal execution of criminal
sentences involves a reflecting about: (a) the reach of the principle of
presumption of innocence coupled with (b) the search for a necessary
balance between this principle and the effectiveness of the criminal
jurisdiction, that must satisfy not only values dear to the accused, but
also to society, in the face of the reality of our intricate and complex
criminal justice system.161
After framing the issue in that way and without ever quoting the text of the
Constitution in dispute, the opinion next moves to analyzing the trends on previous
precedents about the import of the principle of presumption of innocence on the
constitutionality of provisional penal execution162.
After analyzing past precedents, which also did not focus on the text of the
constitutional norm in dispute, the opinion dedicated itself to telling the story of the principle
of presumption of innocence163. It is only at the beginning of this topic that the opinion
actually quotes the text, but only pointedly. It would not discuss its meaning until two topics
161
STF, HC 126292, plenary, rep. Min. Teori Zavascki, j. 02/17/.2016, p. 4-5.
162
STF, HC 126292, at 5-7. It should be noted that the STF flip-flopped on the issue. Right
after the enactment of the 1988 Constitution, it affirmed the constitutionality of the
provisional penal execution, then in a decision of 2009 overruled itself, saying it was
unconstitutional. In the decision I am analyzing now, of 2016, it overruled itself again.
Recently, in 2019, the STF overruled itself yet again and since this last decision, considers
the provisional penal execution to be unconstitutional, as it did from 2009 to 2016. Because
we are not analyzing the merits of the case, but rather the interpretive methodology that
account for the decision, this last reversal is immaterial to our analysis. See STF, ADC 43,
rep. Min. Marco Aurelio, j. 11/7/2019.
163
Id., at 7-8.

afterward. First the opinion would assert some normative imports of said principle 164and the
domain of production and evaluation of evidence as its main scope165.
When the decision finally gets to the meaning of the text of Article 5th, item LVII, the
meaning is not framed as a topic in its own right166. Rather, the opinion is discussing at this
point the limits of the normative scope of the principle of presumption of innocence,
specifically in what relates to the effects of appeals in the immediate serving of a penal
sentence – i.e. in the provisional penal execution. To further the argument that, since the main
import of said principle is in the domain of evidence, the principle loses normative force
progressively as convictions are issued and upheld, the opinions quotes a legal paper:
In what refers to the presumption of innocence, its essential core
imposes the burden of proof of the crime and its agency on the
government. […]
Moreover, this guarantee prohibits, in general, the treatment of the
defendant as guilty until all appeals against a guilty sentence have run
out. However, the definition of what comes [to be understood as]
treating [someone] as guilty depends on the intermediation of the
legislature.
That is, the norm assert that nobody will be considered guilty until all
the appeals against a conviction are denied or have run out, but it is far
from precising what comes to be considering someone guilty.167
This is the only part of the opinion dedicated to constructing meaning of the text of
the norm. From there, it goes on to present a limitation to the principle of presumption of
innocence given by an electoral statute168, talking about how foreign legal systems deal with
the issue169, making policy arguments about how appeals to the High Court and the Supreme
Court are not designed to assess the factual basis of convictions170, telling the details of the
case decided in 2009, that changed the original precedents allowing the provisional penal
execution171, and, finally, coming back to the balancing of constitutional values and how it
should be resolved in favor of the overruling of the then-current precedent and the coming
164
Id., at 8
165
Id., at 8-9.
166
Id., at 10.
167
Id. (citation omitted).
168
Id., at 11-2
169
Id., at 12-5
170
Id., at 15-7
171
Id., at 17-8. See supra, note 162.

back to the previous ones, authorizing the provisional penal execution of convictions, even
when there were still appeals to be decided before the High Court or the Supreme Court172.
As we can see, only an indirect part of one topic of the opinion was dedicated to
mentioning the textual aspects of the norm and how it could impact the meaning thereof.
Other than that part, roughly three small paragraphs long, the opinion formulated the norm as
the principle of presumption of innocence and declared its significance and normative scope
without reference to the normative text itself. Even when it did discuss the words and phrases
of said text, it only came as far as announcing it as vague and then proceeding to create a
meaning not out of the working out of tools for resolving vagueness and ambiguity, but from
the working out of policy and value considerations that were supposed to be above and
beyond the text itself.
To be sure, if we come back to Heller173, the U.S. Supreme Court also resorted to
historical considerations about a kind of normative textual chain that led to the drafting of the
Second Amendment and, from that history, created a right of self-defense, that, according the
majority, was embedded but not expressed in the text of the Amendment. However, in the
Heller opinion, this historical argument was used well into its topical chain, after it had
dedicated a huge part thereof to a complex linguistic reconstruction of that text . In Habeas
Corpus 126.292, the STF did not bother to do much textual work at all, before asserting that
the normative scope of the presumption of innocence should reside mostly in evidence
considerations and, therefore, did not forbid the provisional execution of penal sentences.
The difference in discursive and rhetorical work in both opinions, both of which deal
with making sense of a constitutional, rule-like text, demonstrate how the two courts,
representing two different interpretive cultures, perceive their rhetorical and sense-making
duties to be in interpreting legal (constitutional) norms.
2. Inquiry 1145 – unusual ways to ascertain textual meaning
In Inquiry 1.145174, the STF was deciding whether a then-congressman had

committed a crime. The congressman had paid a group of teachers to assist his daughter and
some of her colleagues when she took university entrance exams175. At the day of the exam,
172
Id. at 18-9.
173
See supra, note 110 and accompanying text.
174
STF, Inq. 1.145, plenary, rep. Min. Mauricio Correa, j. 19/12/2006.
175
Called vestibulares in Portuguese, and similar to SATs in the U.S.

the girl wore a device that received radio transmissions covertly attached to her underwear.
The group of teachers sat at a radio station nearby. By means not very clear in the opinion,
these teachers had previous or contemporaneous knowledge of the exam’s questions and
solved them, then transmitted the answers via radio waves, that were captured by the device
attached to the girl. She listened to it secretly in the bathroom, from time to time. Somehow
the girl and her colleagues got caught and, also in ways not disclosed, so did the teachers and
the congressman who hired them176.
The question before the STF was whether that action was a crime under Brazilian law.
Initially, the congressman was indicted for a general criminal fraud – called Estelionato in the
Brazilian Penal Code. Later, the Brazilian Attorney General’s Office changed the charge to a
crime called “Ideological Falsehood” – Falsidade Ideológica in the Brazilian Penal Code,
because it considered that the elements of the crime of Estelionato were not present in the
case.
Estelionato is defined177 thusly: “To obtain, to oneself or others, illicit benefit, to
someone else’s loss, by inducing or maintaining someone in error, through artifice, deceit or
some other fraudulent means”178. Ideological Falsehood is defined thusly: “To omit, in a
public or private document, statement that was supposed to be therein, or to insert therein a
false statement or [a statement] different from the one that should have been written, with the
intent to curtail a right, create an obligation or alter the truth of a legally material fact”179.
The congressman’s defense argued that the action for which he was indicted neither
matched the elements of the Estelionato crime, nor the ones of the Ideological Falsehood
crime. Interestingly, although the defense seemed to have used an specific argument about
Estelionato -- namely, that the element "someone else’s loss” was not present in the facts180 -
-, in what regards Ideological Falsehood, it "limited [itself] to reuse, in its entirety, the
176
STF, Inq. 1.145, at 1-3.
177
In Brazilian legal style of drafting penal laws, instead of the indefinite pronoun to frame
the agent, that is typical of the U.S. penal laws, the agent is omitted and the verbs that define
the action/s incriminated is at the infinite mode. So instead of, for instance, “whoever gets”,
we would have in Brazil, “to get”. See supra note 16, and accompanying text.
178
Brazilian Penal Code, Article 171. (In Portuguese: “Obter, para si ou para outrem,
vantagem ilícita, em prejuízo alheio, induzindo ou mantendo alguém em erro, mediante
artifício, ardil, ou qualquer outro meio fraudulento”)
179
Brazilian Penal Code, Article 299 (In Portuguese: “Omitir, em documento público ou
particular, declaração que dele devia constar, ou nele inserir ou fazer inserir declaração
falsa ou diversa da que devia ser escrita, com o fim de prejudicar direito, criar obrigação ou
alterar a verdade sobre fato juridicamente relevante”).
180
STF, Inq 1145, at 3.

reasoning made before, because it reflected the same sufficient grounding to demonstrate that
this new framing also did not adjust to ideological falsehood, in line with precedents […]"181
In deciding this case, the STF took a somewhat different rhetorical and discursive
approach from the one in Habeas Corpus 126292. Here, it dealt more often and more directly
with the textual meaning of the penal statutes mentioned above. The first substantial topic it
addressed was a paraphrasing of the arguments used by the prosecution to assert that the facts
matched the definition of Ideological Falsehood:
[The Attorney General's office argue that] the fraud in vestibular182,
through electronic cheating [is a] crime according to article 299 of the
Penal Code, with support in the following premises: the exam is a
document in the legal sense; the candidate does not solve the
questions with its own knowledge; there is an altering of the truth of a
legally material fact and, finally, there is a curtailment of the rights of
other contestants"183
This style of reasoning resembles the common law style we identified earlier,
especially in the Yates case. It dealt with textual meaning of the statutory norm.
The opinion proceeds to also paraphrase the arguments of the prosecution regarding
the absence of fit between the facts and the Estelionato crime184 and then begins to reason
about how the Court will decide the matter185. It is here that the rhetorical and discursive
methods used by the Court differ from those used by the U.S. Supreme Court in telling ways.
Unlike the U.S. Supreme Court, the STF does not isolate specific words or phrases
whose meaning it seeks to discuss and construe. Rather, it takes the contested normative text
as whole and formulate its meaning as deriving from this whole. Consider how the STF
briefly dismisses the application of the Estelionato crime to the case:
The Attorney General’s office, when it set aside the indictment for
estelionato, recognized that this criminal figure did not came to typify
the case. In my view, for all the right reasons, given that to commit the
action of Article 171, it is necessary the existence of a certain and
determined victim, as this Court has decided […]; besides, it is
necessary the existence of an economic loss [prejuízo patrimonial],
that certainly did not get verified in case, except for the defendant
181
Id., at 3-4.
182
I.e., university entrance exams. Emphasis added.
183
STF, Inq. 1145, at 5.
184
Id., at 6.
185
Id.

himself, who spent a money amount in its failed attempt to obtain,
through fraud, the approval of his daughter and friends. 186
The opinion then moves on, without devoting any more time to address how these
requirements it imposed on the application of the Estelionato crime actually correspond to or
derive from parts of its normative text. The same style of whole-meaning formulation is used
to construe the meaning of the other crime considered, Ideological Falsehood:
[O]ne can see that the qualification of the defendant’s action as a
crime of ideological falsehood is improper. Beyond not existing any
omission in a public or private document of statement that was
supposed to be therein, one cannot conceive that there has been a false
information or one that was different from the one that should have
been written, because there is no way to precise if the candidates
effectively benefited themselves from the artifice of "electronic
cheating" or even which would have been their [answers] without the
use of the deceit.187
Even though we can see indirect quoting of the normative text in this excerpt, this text
is not the object of any discursive tool for construing the meaning of its words and phrases.
The quoting of the text is the base of a general denial of its applicability to the case. The
controversy is never about what that or that part of the text means, but rather, assuming that
the meaning is obvious, whether that obvious meaning refers to cases such as the one being
adjudicated or not.
Further evidence of this is that the topical chain that led to this last excerpt and the
one that followed it did not unpack the normative text either. Leading to the excerpt, the
opinion discussed the administrative norms of vestibulares, which would make "[t]he action
of so-called cheating, to be sure, [earn] a size and graveness with the introduction of the use
of creative and sophisticated means, among which the electronic”188 and the caveat that "this
circumstance […] reveals itself as insufficient" to make that action a crime189.
Right after the excerpt quoted above, the opinion cites a textbook explanation of the
Ideological Falsehood crime and then repeats that the action under scrutiny did not fall under
its terms, again making the analysis about the inexistence of false information or material
186
STF, Inq. 1145, at 6
187
Id., at 8-9.
188
Id., at 8.
189
Id.

omissions190. The opinion then moves on to reaffirm the immorality of the defendants’
actions, mentioning that "one is not defending the legitimacy of the conduct, nor rejecting the
occurrence of fraud, but merely sustaining that one cannot identify it in the criminal statutes
in force"191, a topic that will recur, with similar argument, until the end of the opinion, two
pages later.
Again, we should note that even in an opinion in which the main theme is the
interpretation of criminal statutes and its possible application to a case, the interpretation
proper proceeds in a straightforward way, without linguistic or textual aids, such as
dictionaries, comparing with other statutes, analysis of statute headers, placement within the
code or interpretive canons192.
The words and phrases are not even highlighted as specific objects of focus and
scrutiny. Rather, the statutory texts are treated as a whole object of analysis, with occasional
references to its components. So even the use of intuitive judgments as the only method of
assessing and construing the meaning of the statute, which is also part of the Common Law
interpretive culture193, is applied in this case in a different, more holistic way.
V. INTERPRETIVE CULTURES, LEGAL MEANING AND THE TEXT IN COMMON

LAW AND CIVIL LAW SYSTEMS
As the literature on anthropology and the social sciences demonstrates, cultures can
be viewed as semiotic repositories that guide how those acting inside it view the world, their
tasks and the nature of their interactions with comembers of the same culture194. Also,
cultures are multidimensional, in that they move in time, but also in depth195. Cultures can
have many subcultures, each having to do with specific domains, identities and tasks.
190
Id., at 9.
191
Id., at 10.
192
The only aids the decision did use was the looking for precedents and the one citation to a
textbook, but even these aids were incorporated in the holistic way discussed in the text and
did not approach the way a Common Law opinion would go about using similar aids. See
supra note 182 and accompanying text.
193
See Lawrence M. Solan & Tammy Gales, Finding Ordinary Meaning in the Law: The
Judge, the Dictionary or the Corpus, 1 INTL. J. LEGAL DISCOURSE 253, 255-6 (2016).
194
See supra Part II, A.
195
Hence the metaphor of a “hermeneutical spiral” to account for the work of making sense
of cultures and cultural objects. See Alessandro Duranti, The Audience as Co-Author: An
Introduction, 6 TEXT 239, 244 (1986).

Therefore, inside a legal culture, we have an interpretive culture, which encapsulates semiotic
resources that guide professional interpreters of legal texts on how to perform their task.
Cultures develop out of complex factors and can be influenced by random events. It is
also continuously evolving. The way it is at any given point, however, predicts how social
actions are supposed to work. In following the protocols offered them by their cultures, social
actors actualize and strengthen the culture’s resources. Being part of the legal culture in
general, interpretive cultures develop out of complex factors and, at any given point, allow
for predictions as to how professional actors will perform their tasks of interpreting texts.
So, in answering the first question I set out at the introduction, namely, whether there
really were two different methods of norm-construing and norm-applying in civil law and
common law systems, we must answer it in the affirmative. Justice Scalia was right in
pointing out that there was such a difference196. Contrary to what Justice Scalia proposed,
however, the difference is not on the inductive/judge-made character of the common law
method versus the deductive/legislature-made character of the civil law method. In fact – and
maybe counter-intuitively --, the difference seems to be in the reverse. common law norm-
construing and norm-applying methods seem to favor the parsing and interpreting of the
words and phrases of the statutes and constitutional norms much more that civil law methods.
This is the case even if, historically and in the literature of comparative law, the
common law tradition has been linked to judge-made, case-by-case law or the so-called
inductive method, whereas the civil law tradition has been linked to written norm-centered,
general and abstract law or the so-called deductive method197. For reasons this Article cannot
spot, maybe involving multiple complex cultural processes, the common law tradition has
evolved to being the tradition more fond of trying to get right the text of the written,
legislature-enacted, legal norm – hence the “faithful agent” metaphor198. Conversely, the civil
law tradition has evolved to being the tradition more comfortable with leaving the text in the
background, while letting considerations about values, policy objectives and morality drive
196
See Scalia, supra note 1, at 8-9.
197
See Bernard Audit, L’Americanisation du Droit: Introduction, 45 ARCHIVES DE
PHILOSOPHIE DU DROIT 7, 8-9 (also linking the case-oriented nature of the common law
to the English philosophical tradition of empiricism and the law-oriented nature of the civil
law to the French philosophical tradition of rationalism). See also supra note 20 and
accompanying text.
198
See supra note 73 and accompanying text. The U.K. system has the “Parliamentary
Sovereignty” doctrine, which is analogous. See Styles supra note 41, at 155.

the applying of the law to the case. And this answers the second question I set out at the
introduction.
This is not to say that civil law jurists will never defer moral or policy considerations
to a settled meaning of the legal text or that common law jurists will never push the text
around to achieve a result consistent with moral or policy considerations199. This only means
that the way a civil law jurist or a common law jurist will generally approach an interpretive
problem will be different in predictable ways. While both will say they are just applying the
law, common law jurists will first deal somehow with the text of legal norm relevant to the
case. They will parse its text, find the meaning of its contested parts on the dictionary,
precedent or similar normative texts, and then, maybe, incorporate other considerations of
legislative intention, policy or moral/value considerations.
Civil law jurists will first state the problem in general normative terms, with little
concern for the actual words of the relevant texts. Then they will elaborate on different
normative angles of the problem, present colliding values and policy considerations. Only
then they will invoke the actual words of the normative text under consideration, and, maybe,
devote some portion of the opinion to construe its meaning, often as a whole enterprise,
almost never explicitly parsing it or using textual aides – such as a dictionary – to do so.
These templates are, as any templates, mutable in real instances. It is not a fixed
order. But they reconstruct accurately the interpretive dynamic we have seen above, both in
the literature review and the four case studies. They also show us how the two different
interpretive cultures make jurists operating therein perceive their need to justify what they are
doing and how they are doing it.
What it does not seem to do however, is prevent both the U.S. Supreme Court and the
Brazilian STF to be perceived by commentators as “activists” from time to time. The power
of judicial review of the U.S. Supreme Court has probably been criticized from the moment it
was first declared in the early 1800’s200. The criticism of “activism” has no ideological
199
In fact, it might be argued Heller was just such a case.
200
See Jeremy Waldron, The Core of The Case against Judicial Review, 115 YALE L.J. 1346
(2006).

coherence requirement and can be directed to decisions with both liberal201 and conservative
outcomes202.
In Brazil, the scenario is similar. The decision in HC 126.292 – a “conservative”
decision -- has been heavily criticized, with the STF being accused of mis-applying the
constitution and of being “activist” 203. Criticism was also present, albeit milder, when the
STF issued a constitutional conformant interpretation of the Brazilian Civil Code, declaring
that it should be read to permit same-sex unions – even if the text of the constitutional norm
used as parameter said “it is recognized the […] union between man and woman”204 – a
“liberal” decision.
So, it seems the democratic character of the functioning of Judicial Branch does not
so much rest on the interpretive culture it follows, i.e. whether its decisions are reasoned as
text-centered or not. Rather, it depends on the complex relationship it establishes between
itself and the other, elected, branches.
It seems fair to say it will never be a perfect relationship. For the foreseeable future,
all courts will probably be occasionally accused of being “activists”. This accusation will also
occasionally be with merit, since courts, in common law and civil law are occasionally prone
to impose their moral and policy views on that of the elected branches. But although the merit
of the accusation will depend on complex institutional arguments, it does not seem like it will
be mainly dependent – if at all -- upon the interpretive culture the court embraces.
And that answers the third question I set out at the introduction.
CONCLUSION
This Article argued that assumed differences between civil law and common law
systems in what regards the interpretation of legal norms are usually based on false
201
See, ex. gr., Obergefell, supra note 116, at 2626 (ROBERTS, C.J., dissenting) (going to
lengths to state, “[i]f you are among the many Americans […] who favor expanding same-sex
marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired
goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate
the availability of new benefits. But do not celebrate the Constitution. It had nothing to do
with it”).
202
See dissenting opinions in Heller (supra note 116 and accompanying text).
203
See Joao Pedro Padua, Categorizações como Método de Produção de Sentido de Normas
Constitucionais: Contribuições da Interface entre Direito e Análise do Discurso, 221
REVISTA DE INFORMAÇÃO LEGISLATIVA 87, 88-9 (2019) (quoting doctrinal and
institutional sources).
204
STF, ADI 4277, Pleno, rel. Min. Carlos Britto, DJe 14/10/2011 (unanimous).

assumptions. Namely, the assumption that because civil law systems come from a history of
doctrinal comment over written legal authority – mostly statutes --, these systems would
naturally be more centered around interpretation of the text of those authorities. Or, to
paraphrase Justice Scalia, that civil law systems would naturally tend to be more textualist in
legal interpretation205.
As this Article have shown, this is not the case. In fact, the reverse seems true.
common law jurists seem much more fixated in construing textual meaning than their civil
law counterparts. And, inside the common law tradition, that seems to hold true both for
textualists and for what this Article called eclecticists. That is why the title of this Article
reversed the title of the famous Scalia Article. What seemed to be missing from both Scalia’s
work and most of the comparative law literature on the subject was a focus on legal
interpretation in terms of interpretive cultures, which was something this Article also tried to
advance.
The conclusions laid down in this Article should be taken with a grain of salt,
however. By using two specific legal systems as proxies for the entire traditions of civil law
and common law – Brazil and the U.S., respectively --, there is always a risk of
overgeneralization. Even being in the same tradition, different national legal systems have
different specificities, that derive from local history, legal transplants, reforms and the like.
Nonetheless, they may give us a fair big picture of how different systems deal with
interpretive problems.
This is important not only for advancing our knowledge of comparative law, but
because legal interpretation is the bread and butter of the functioning of any legal system.
Any legal system is primarily devised as system for impartially applying some form of legal
parameter to resolve social conflicts. In time, these legal parameters have coalesced into legal
norms, mostly in the form of statutes and constitutional norms. Judicial decisions that
interpret those parameters are also used as parameters on their own right, i.e., precedents.
So, understanding how different legal systems approach interpretive tasks is important
for assessing the ways our own systems do that and propose how to improve them. It is also
important for not pursuing intuitive avenues that are not backed up by the facts. This Article
has shown that a more or less text-centered approach are not decisive to define how
democratic or balanced courts are in the system of checks and balances. But it has also shown
that there are real differences between them. If we can refine the research, maybe we can
205
See Scalia, supra note 1.

arrive at some good conclusions in terms of improving the functioning of legal systems inside
democratic States.

Civil-Law Courts in Common-Law Systems: Interpretive Cultures in Comparative Perspective

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Civil-law courts in common-law systems: interpretive cultures in comparative

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II. Interpretive cultures

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III. Legal interpretation in Common Law and Civil Law

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B. Legal interpretation in common law systems

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Underlying this text-first-whatever-after approach is a commitment to “legislative

C. Legal interpretation in civil law systems

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The assumed impossibility of finding a literal, ordinary meaning in ontological

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Taruffo, Interpretation and Comparative Analysis, in INTEPRETING STATUTES: A

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B. Legal Interpretation in the US Supreme Court

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2. Yates v. U.S. – when tangible objects become tangible doctrines

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2. Inquiry 1145 – unusual ways to ascertain textual meaning

In Inquiry 1.145174, the STF was deciding whether a then-congressman had

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V. INTERPRETIVE CULTURES, LEGAL MEANING AND THE TEXT IN COMMON

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