Damiano Canale (Bocconi University) has posted Rule-Following and Interpretive Correctness in Law on SSRN. Here is the abstract:
This article takes the rule-following paradox as a way of re-examining a familiar question in legal theory: what makes the interpretation of a legal provision correct? The paradox shows that several influential answers to this question remain unsatisfactory. Whether correctness is traced back to authority, convention, settled usage, normative facts, or practical judgement, each account struggles to explain how an interpretive outcome can be binding in law and yet still be open to criticism as mistaken. The article argues that this difficulty can be addressed by bringing together an inferentialist account of content and an institutional theory of law. On this account, legal content is articulated through the exchange of reasons within an institutional practice structured by second-order rules that determine when an interpretive outcome acquires legal force. Interpretive correctness, on this view, depends on the relation between the argumentative justification of an interpretive outcome and the institutional conditions under which it becomes binding.
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