Can Legal Interpretation Be a Coordination Game? 

Michele Ubertone (Bologna University)

Abstract

Between A and B’s neighbouring properties there is a tall tree that has been sick for some time and needs expensive care, otherwise it would risk falling to the ground and seriously damaging both properties. A dispute arises between the two neighbours. Each of the two claims that the other is supposed to bear the expenses to secure the tree. The dispute focuses on the interpretation of a contract stipulated between the two parties. Let us disregard the specific wording of this contract. Suffice it to say that it is a text of which A and B would like to give two completely divergent interpretations. Let's call Pro-A the interpretation preferred by A (the tree must be secured at B’s expense) and Pro-B the interpretation preferred by B (the tree must be secured at A’s expense). Between A and B, an interpretative conflict takes place that can be traced back to what Bruno Celano calls the “struggle for the text” (“lotta per il testo”). As David Lewis has argued, in ordinary linguistic communication, the choice of meanings to be attributed to words is a pure coordination game: it is convenient for all speakers to converge on whichever use of the terms the other speakers converge on. But, according to Bruno Celano, when it comes legal discourse, the attribution of meaning to words is systematically accompanied by a struggle, a conflict of interest: each of the parties wants to give the text a meaning favourable to herself. Celano says that the “struggle-for-text game” implied by legal interpretation is not a coordination game. In this paper, I would like to dispute or at least qualify Celano’s claim, by arguing that in many situations in which the interpretation of a legal text is disputed the attribution of meaning to it by the parties involved can be indeed a type of coordination game. In this kind of game, the convergence on a common meaning is important for all the parties involved (without this, the text would have no value or authority), but they disagree on what this common meaning should be. It is a coordination game, but it is not a pure coordination game. I will argue that the game that is played in situations such as the one portrayed in our example is a battle of the sexes. If A and B do not converge on any common interpretation they will get the lowest payoff (the tree will fall, causing very serious damage to both). However, the two ways in which A and B can coordinate, the two Nash equilibria of the game, do not give the same payoff to both: convergence on Pro-A is more convenient to A and convergence on Pro-B is more convenient to B.

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