William Baude (University of Chicago) and Stephen E. Sachs (Duke University) recently posted on SSRN an important paper titled “The Law of Interpretation.” (How important? Their paper will be published in the Harvard Law Review–that important!) Law professors like Baude and Sachs and their kin have killed millions of trees writing papers and whole books about legal interpretation (the Baude & Sachs paper, for example, is 85 pages and contains 372 footnotes) because interpretation is so central to what courts do in deciding hard cases, especially cases involving constitutional law. Specifically, courts must resort to various theories of interpretation when there are gaps in the law or when the applicable law consists of conflicting rules or legal principles. For their part, Baude and Sachs claim that “legal interpretation … is deeply shaped by preexisting legal rules. These rules tell us what legal materials to read and how to read them. Like other parts of the law, what we call ‘the law of interpretation’ has a claim to guide the actions of judges, officials, and private interpreters — even if it isn’t ideal. We argue that legal interpretive rules are conceptually possible, normatively sensible, and actually part of our legal system.” In other words, the authors claim that there are rules of legal interpretation and that these rules comprise a second-order legal system.
Nevertheless, although we don’t want to be “that guy,” we are obliged to point out a fundamental logical flaw in their argument, a blind spot that destroys their entire theoretical edifice in a single blow. Specifically: what happens when there are gaps in these second-order interpretative rules themselves, or when the rules in this second-order system are themselves in conflict? Is there a third-order law (i.e. a law of the law of interpretation) to help us interpret the second-order interpretation rules, or do we have an infinite regress? (Addendum: we have posted a formal reply to Baude & Sachs on SSRN.)