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Beyond Indeterminacy and Self-Contradiction in Law: Transnational Abductions and Treaty Interpretation in U.S. v. Alvarez-Machain
Derek C. Smith 1
Full text available: PDF format *
[H]uman laws cannot have the unerring quality of scientifically demonstrated conclusions. Not every rule need possess final infallibility and certainty; as much as is possible in its class is enough.
St. Thomas (Summa Theologica, Ia-2ae. xci. 3, ad 3)2
Introduction
In both international and domestic law the interpretation of normative texts generates continual academic, legal and political controversy. Courts and other interpreters often resolve difficult moral and political questions when they interpret the law. At times the text seems to compel a certain result, and at others, as in the Alvarez-Machain3 case, there are quite persuasive arguments for diverging interpretations leading to radically different results. When a court, an administrative agency or a State adopts one of several conflicting interpretations, those whose desired outcome is not endorsed are usually incensed and the decision engenders political conflict. Because of its obvious importance for the legal system and a law-based society, scholars have written extensively on interpretation. But despite the political controversies and intensive intellectual reflection, the underlying questions remain substantially unresolved.
The critical legal studies movement and other sceptical and post-modern writers have sparked recent debate by questioning the legitimacy of the Rule of Law based on two arguments related to interpretation. Critical scholars assert, on the one hand, that legal rules are indeterminate and judicial interpretation is, consequently, of a mostly rhetorical nature and, on the other, that modern legal thought is plagued by inherent contradictions or dilemmas. As a result, while there are other issues relative to interpretation, three related questions stand out as needing answers at present - the first two concern the determinacy debate and the third the self-contradiction question:
1) To what extent are legal rules indeterminate?
2) What is the function of legal rules in interpretive legal decision-making? and
3) If interpreters in modern legal systems are caught in a dilemma, what are its contours and what is its significance?
In this article, I address these theoretical questions in the context of the concrete treaty interpretation problem raised in United States v. Alvarez-Machain.
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1 Research Fellow, University of Seville. I would like to express my
deepest gratitude to Professor Juan Antonio Carrillo-Salcedo for his
indispensable support and insightful comments during the drafting of this
article. I would also like to thank Professor David A. Martin for his comments
and support while I conducted research at the University of Virginia School of
Law.
2 Translation from T. Gilby, St. Thomas Aquinas, Philosophical
Texts (1982) 363, para. 1063.
3 Unites States v. Alvarez-Machain, 60 U.S.L.W. 4523, 112
S.Ct. 2188, (16 June 1992).
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