Kent Greenawalt
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199756131
- eISBN:
- 9780199855292
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199756131.001.0001
- Subject:
- Law, Philosophy of Law
This book focuses on textual interpretation of the law. All law needs to be interpreted, and there are many ways to do it. The book covers the dominant methods of legal interpretation, explaining ...
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This book focuses on textual interpretation of the law. All law needs to be interpreted, and there are many ways to do it. The book covers the dominant methods of legal interpretation, explaining their underlying structure and efficacy. But there are other issues involved. Which perspective should we prioritize—the writer or the reader? Should interpretation be abstract or contextual? Should it have a specific aim or a general objective? To answer these tough questions, the book explores how interpretive strategies from other disciplines—the philosophy of language, literary and musical interpretation, religious interpretation, and general interpretive theory—can augment and enrich our methods of legal interpretation.Less
This book focuses on textual interpretation of the law. All law needs to be interpreted, and there are many ways to do it. The book covers the dominant methods of legal interpretation, explaining their underlying structure and efficacy. But there are other issues involved. Which perspective should we prioritize—the writer or the reader? Should interpretation be abstract or contextual? Should it have a specific aim or a general objective? To answer these tough questions, the book explores how interpretive strategies from other disciplines—the philosophy of language, literary and musical interpretation, religious interpretation, and general interpretive theory—can augment and enrich our methods of legal interpretation.
Kent Greenawalt
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199756131
- eISBN:
- 9780199855292
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199756131.003.0005
- Subject:
- Law, Philosophy of Law
This chapter turns from theories of interpretation developed in particular disciplines to general theories. Everyone agrees that legal analysis involves one form (or a number of related forms) of ...
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This chapter turns from theories of interpretation developed in particular disciplines to general theories. Everyone agrees that legal analysis involves one form (or a number of related forms) of interpretation. Thus, any truly general theory will apply to law. But that does not tell us just how a theory will apply to various branches of law and how helpful it may be for those whose overarching interest concerns law. The chapter examines the approach of Hans–Georg Gadamer, the most influential modern hermeneutical theorist, and considers the relevance of his approach for understanding interpretation in law and for addressing issues about how that interpretation may best proceed.Less
This chapter turns from theories of interpretation developed in particular disciplines to general theories. Everyone agrees that legal analysis involves one form (or a number of related forms) of interpretation. Thus, any truly general theory will apply to law. But that does not tell us just how a theory will apply to various branches of law and how helpful it may be for those whose overarching interest concerns law. The chapter examines the approach of Hans–Georg Gadamer, the most influential modern hermeneutical theorist, and considers the relevance of his approach for understanding interpretation in law and for addressing issues about how that interpretation may best proceed.
Joseph Raz
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199562688
- eISBN:
- 9780191705342
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562688.003.0011
- Subject:
- Law, Philosophy of Law
This chapter focuses on the role intention must have in the interpretation of legislation. It argues that the doctrine of authority provides the foundation for the role of conserving interpretation ...
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This chapter focuses on the role intention must have in the interpretation of legislation. It argues that the doctrine of authority provides the foundation for the role of conserving interpretation in adjudication. In the practice of adjudication, interpretation features even where the doctrine of authority does not extend, and where conserving interpretation is either impossible or unjustified. However, the question of why and when should the courts use innovative interpretation as the morally correct way of deciding cases remains to be answered.Less
This chapter focuses on the role intention must have in the interpretation of legislation. It argues that the doctrine of authority provides the foundation for the role of conserving interpretation in adjudication. In the practice of adjudication, interpretation features even where the doctrine of authority does not extend, and where conserving interpretation is either impossible or unjustified. However, the question of why and when should the courts use innovative interpretation as the morally correct way of deciding cases remains to be answered.
Joseph Raz
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199562688
- eISBN:
- 9780191705342
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562688.003.0013
- Subject:
- Law, Philosophy of Law
This chapter discusses the authority and interpretation of constitutions. A principle of constitutional theory that commands widespread support says that the principles of constitutional ...
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This chapter discusses the authority and interpretation of constitutions. A principle of constitutional theory that commands widespread support says that the principles of constitutional interpretation depend in part on the theory of constitutional authority. In determining the conditions for constitutional legitimacy, the theory of the authority of the constitution contributes to the determination of principles of interpretation. It is argued that this sound principle is also the source of many false analogies motivated by attempts to assimilate the authority of the constitution to that of other parts of the law.Less
This chapter discusses the authority and interpretation of constitutions. A principle of constitutional theory that commands widespread support says that the principles of constitutional interpretation depend in part on the theory of constitutional authority. In determining the conditions for constitutional legitimacy, the theory of the authority of the constitution contributes to the determination of principles of interpretation. It is argued that this sound principle is also the source of many false analogies motivated by attempts to assimilate the authority of the constitution to that of other parts of the law.
Joseph Raz
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199562688
- eISBN:
- 9780191705342
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562688.003.0009
- Subject:
- Law, Philosophy of Law
This chapter on legal interpretation considers the question: Why is interpretation central to legal practices? After all not all normative practices assign interpretation such a central role. In this ...
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This chapter on legal interpretation considers the question: Why is interpretation central to legal practices? After all not all normative practices assign interpretation such a central role. In this regard the law contrasts with morality. The reason for the contrast has to do with the status of sources in the law. There are no ‘moral sources’, while legal sources are central to the law. It argues that legal interpretation is primarily the interpretation not of the law, but of its sources. To understand why interpretation is central to legal practices requires understanding the role of sources in the law: the reasons for having them, and hence also the ways in which they should be treated. The chapter shows how reflections about these topics connect with some traditional jurisprudential puzzles, such as the relations between law and morality.Less
This chapter on legal interpretation considers the question: Why is interpretation central to legal practices? After all not all normative practices assign interpretation such a central role. In this regard the law contrasts with morality. The reason for the contrast has to do with the status of sources in the law. There are no ‘moral sources’, while legal sources are central to the law. It argues that legal interpretation is primarily the interpretation not of the law, but of its sources. To understand why interpretation is central to legal practices requires understanding the role of sources in the law: the reasons for having them, and hence also the ways in which they should be treated. The chapter shows how reflections about these topics connect with some traditional jurisprudential puzzles, such as the relations between law and morality.
Michael A. Livingston, Pier Giuseppe Monateri, and Francesco Parisi
Mauro Capelletti, John Henry Meryman, and Joseph M. Perillo (eds)
- Published in print:
- 2015
- Published Online:
- May 2016
- ISBN:
- 9780804774956
- eISBN:
- 9780804796552
- Item type:
- chapter
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9780804774956.003.0007
- Subject:
- Law, Comparative Law
This chapter—arguably the grandest in the book—traces the Italian style as it affects legal interpretation. It describes the difference between the “folklore” of interpretation, under which the judge ...
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This chapter—arguably the grandest in the book—traces the Italian style as it affects legal interpretation. It describes the difference between the “folklore” of interpretation, under which the judge is merely the mouthpiece of the statute, and the actual practice, in which the judge’s values, beliefs, and attitudes inevitably affect the outcome of cases. The core of the chapter is devoted to the work of three scholars—Emilio Betti, Tullio Ascarelli, and Piero Calamandrei—who attempted to resolve this problem, the last with an ambitious theory regarding the need to update interpretation to meet the demands of a democratic society. The chapter concludes with a brief section that summarizes the themes of the book as a whole.Less
This chapter—arguably the grandest in the book—traces the Italian style as it affects legal interpretation. It describes the difference between the “folklore” of interpretation, under which the judge is merely the mouthpiece of the statute, and the actual practice, in which the judge’s values, beliefs, and attitudes inevitably affect the outcome of cases. The core of the chapter is devoted to the work of three scholars—Emilio Betti, Tullio Ascarelli, and Piero Calamandrei—who attempted to resolve this problem, the last with an ambitious theory regarding the need to update interpretation to meet the demands of a democratic society. The chapter concludes with a brief section that summarizes the themes of the book as a whole.
Kent Greenawalt
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199756131
- eISBN:
- 9780199855292
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199756131.003.0001
- Subject:
- Law, Philosophy of Law
This introductory chapter sets out the purpose of the book, which is to identify the questions that any approach to textual interpretation must answer (explicitly or implicitly), and to show how the ...
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This introductory chapter sets out the purpose of the book, which is to identify the questions that any approach to textual interpretation must answer (explicitly or implicitly), and to show how the considerations that bear on desirable interpretation shift as one moves from one kind of legal interpretation to another. It then discusses basic issues about textual interpretation in law, nontextual interpretation, and the scope of the term “interpretation”.Less
This introductory chapter sets out the purpose of the book, which is to identify the questions that any approach to textual interpretation must answer (explicitly or implicitly), and to show how the considerations that bear on desirable interpretation shift as one moves from one kind of legal interpretation to another. It then discusses basic issues about textual interpretation in law, nontextual interpretation, and the scope of the term “interpretation”.
Kent Greenawalt
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199756131
- eISBN:
- 9780199855292
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199756131.003.0009
- Subject:
- Law, Philosophy of Law
The law of contracts is a major part of modern private law, and the law's treatment of contracts is the subject of extensive scholarly attention in the United States. This chapter explores questions ...
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The law of contracts is a major part of modern private law, and the law's treatment of contracts is the subject of extensive scholarly attention in the United States. This chapter explores questions about contract interpretation similar to those concerning wills. These include: How far should courts be guided by objective meaning, how far by the subjective intent of the parties? How general or contextual should objective meaning be taken to be? When should courts “write in” terms that parties have failed to supply—a power that is quite limited for wills—and how should they go about that task? If various contractual provisions point in different directions, should a court give each its apparent meaning, even at the cost of an unwieldy totality, or bend the language of some terms to make the whole contract work well? What evidences of meaning should courts allow?Less
The law of contracts is a major part of modern private law, and the law's treatment of contracts is the subject of extensive scholarly attention in the United States. This chapter explores questions about contract interpretation similar to those concerning wills. These include: How far should courts be guided by objective meaning, how far by the subjective intent of the parties? How general or contextual should objective meaning be taken to be? When should courts “write in” terms that parties have failed to supply—a power that is quite limited for wills—and how should they go about that task? If various contractual provisions point in different directions, should a court give each its apparent meaning, even at the cost of an unwieldy totality, or bend the language of some terms to make the whole contract work well? What evidences of meaning should courts allow?
Andrei Marmor and Scott Soames (eds)
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199572380
- eISBN:
- 9780191728914
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199572380.001.0001
- Subject:
- Law, Philosophy of Law
This book brings together the best contemporary philosophical work in the area of the intersection between philosophy of language and the law. Some of the contributors are philosophers of language ...
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This book brings together the best contemporary philosophical work in the area of the intersection between philosophy of language and the law. Some of the contributors are philosophers of language who are interested in applying advances in philosophy of language to legal issues, and some of the participants are philosophers of law who are interested in applying insights and theories from philosophy of language to their work on the nature of law and legal interpretation. By making this body of recent work available in a single volume, this book gives both a general overview of the various interactions between language and law, and also detailed analyses of particular areas in which this interaction is manifest. The contributions to this volume are grouped under three main general areas: The first area concerns a critical assessment, in light of recent advances in philosophy of language, of the foundational role of language in understanding the nature of law itself. The second main area concerns a number of ways in which an understanding of language can resolve some of the issues prevalent in legal interpretation, such as the various ways in which semantic content can differ from law's assertive content; the contribution of presuppositions and pragmatic implicatures in understanding what the law conveys; the role of vagueness in legal language, for example. The third general topic concerns the role of language in the context of particular legal doctrines and legal solutions to practical problems, such as the legal definitions of inchoate crimes, the legal definition of torture, or the contractual doctrines concerning default rules.Less
This book brings together the best contemporary philosophical work in the area of the intersection between philosophy of language and the law. Some of the contributors are philosophers of language who are interested in applying advances in philosophy of language to legal issues, and some of the participants are philosophers of law who are interested in applying insights and theories from philosophy of language to their work on the nature of law and legal interpretation. By making this body of recent work available in a single volume, this book gives both a general overview of the various interactions between language and law, and also detailed analyses of particular areas in which this interaction is manifest. The contributions to this volume are grouped under three main general areas: The first area concerns a critical assessment, in light of recent advances in philosophy of language, of the foundational role of language in understanding the nature of law itself. The second main area concerns a number of ways in which an understanding of language can resolve some of the issues prevalent in legal interpretation, such as the various ways in which semantic content can differ from law's assertive content; the contribution of presuppositions and pragmatic implicatures in understanding what the law conveys; the role of vagueness in legal language, for example. The third general topic concerns the role of language in the context of particular legal doctrines and legal solutions to practical problems, such as the legal definitions of inchoate crimes, the legal definition of torture, or the contractual doctrines concerning default rules.
Kent Greenawalt
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199756131
- eISBN:
- 9780199855292
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199756131.003.0011
- Subject:
- Law, Philosophy of Law
The previous chapters looked at the basic components of legal interpretation. These explored how other disciplines might bear on legal texts; what constitutes desirable performance and the meaning of ...
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The previous chapters looked at the basic components of legal interpretation. These explored how other disciplines might bear on legal texts; what constitutes desirable performance and the meaning of informal instructions; and the various aspects of interpreting texts (and oral communications) created by private individuals but enforceable in law. This concluding chapter offers a few general observations about how these efforts relate to what will follow in subsequent volumes, and compares its conclusions with those of an outstanding Israeli judge and jurist, Aharon Barak, who has offered a general, comprehensive theory for the interpretation of legal texts.Less
The previous chapters looked at the basic components of legal interpretation. These explored how other disciplines might bear on legal texts; what constitutes desirable performance and the meaning of informal instructions; and the various aspects of interpreting texts (and oral communications) created by private individuals but enforceable in law. This concluding chapter offers a few general observations about how these efforts relate to what will follow in subsequent volumes, and compares its conclusions with those of an outstanding Israeli judge and jurist, Aharon Barak, who has offered a general, comprehensive theory for the interpretation of legal texts.
Joseph Raz
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199562688
- eISBN:
- 9780191705342
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562688.003.0012
- Subject:
- Law, Philosophy of Law
This chapter presents a case for legal innovation and change within a stable, continuous legal framework. It proceeds in two stages. First, it puts the case for innovative interpretation. It shows ...
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This chapter presents a case for legal innovation and change within a stable, continuous legal framework. It proceeds in two stages. First, it puts the case for innovative interpretation. It shows how the general view of interpretation applies to legal interpretation as we know it. It then presents a brief discussion of the limits of interpretation.Less
This chapter presents a case for legal innovation and change within a stable, continuous legal framework. It proceeds in two stages. First, it puts the case for innovative interpretation. It shows how the general view of interpretation applies to legal interpretation as we know it. It then presents a brief discussion of the limits of interpretation.
Kent Greenawalt
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199756131
- eISBN:
- 9780199855292
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199756131.003.0008
- Subject:
- Law, Philosophy of Law
This chapter argues that among written documents with legal authority, the reasons for emphasizing the writer's intent in some form are strongest for wills. Wills resemble a principal's instructions ...
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This chapter argues that among written documents with legal authority, the reasons for emphasizing the writer's intent in some form are strongest for wills. Wills resemble a principal's instructions as an agent seeks to interpret them. In contrast with an agent considering instructions, the overarching focus for wills has been on the time they are written, although recent law has somewhat expanded the possibilities of reformation in light of changing circumstances. Thus, the typical interpretation rests on a form of originalism.Less
This chapter argues that among written documents with legal authority, the reasons for emphasizing the writer's intent in some form are strongest for wills. Wills resemble a principal's instructions as an agent seeks to interpret them. In contrast with an agent considering instructions, the overarching focus for wills has been on the time they are written, although recent law has somewhat expanded the possibilities of reformation in light of changing circumstances. Thus, the typical interpretation rests on a form of originalism.
Scott Soames
- Published in print:
- 2014
- Published Online:
- October 2017
- ISBN:
- 9780691160726
- eISBN:
- 9781400850464
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691160726.003.0014
- Subject:
- Philosophy, American Philosophy
This chapter is concerned with the content of legal norms governing the interpretation of legal texts by legally authoritative actors in a legal system. As such, a theory of legal interpretation is a ...
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This chapter is concerned with the content of legal norms governing the interpretation of legal texts by legally authoritative actors in a legal system. As such, a theory of legal interpretation is a theory of the content of the law, codified or uncodified, governing legally authorized interpreters. Thought of in this way, it is a nonnormative empirical theory related to, but distinct from, (a) empirical theories about what the mass of judges in a particular legal system actually do in the cases before them; (b) moral theories about what they morally should do in particular cases; and (c) politically normative theories about what the role of the judiciary should be in an ideal system. The most important question to be answered by such a theory is, what precisely is required of legally authoritative interpreters, how much and what kind of latitude are they allowed, and what factors are they to take into account in their interpretations?Less
This chapter is concerned with the content of legal norms governing the interpretation of legal texts by legally authoritative actors in a legal system. As such, a theory of legal interpretation is a theory of the content of the law, codified or uncodified, governing legally authorized interpreters. Thought of in this way, it is a nonnormative empirical theory related to, but distinct from, (a) empirical theories about what the mass of judges in a particular legal system actually do in the cases before them; (b) moral theories about what they morally should do in particular cases; and (c) politically normative theories about what the role of the judiciary should be in an ideal system. The most important question to be answered by such a theory is, what precisely is required of legally authoritative interpreters, how much and what kind of latitude are they allowed, and what factors are they to take into account in their interpretations?
Nicos Stavropoulos
- Published in print:
- 1996
- Published Online:
- March 2012
- ISBN:
- 9780198258995
- eISBN:
- 9780191681899
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198258995.001.0001
- Subject:
- Law, Philosophy of Law
The question of objectivity in legal interpretation has emerged in recent years as an important topic in contemporary jurisprudence. This book addresses the issue of how and in what sense legal ...
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The question of objectivity in legal interpretation has emerged in recent years as an important topic in contemporary jurisprudence. This book addresses the issue of how and in what sense legal interpretation can be objective. It supports the possibility of objectivity in law and spells out the content of objectivity involved. It then provides a defence against the classical, as well as the less well-known, objections to the possibility of objectivity in legal interpretation. The discussion is thoroughly grounded in metaphysics, which sets the book apart from other similar discussions in jurisprudence. The book identifies an important source of resistance to the acceptance of the possibility of objectivity in legal interpretation; a widely held but faulty semantic. It then develops an alternative semantic framework, drawing on influential theories in contemporary philosophy. The book shows that objectivism is a natural, commonsensical position, and rejects the currently popular notion that objectivism requires extravagant or bizarre metaphysics. Furthermore, the discussion presents the opportunity to re-interpret major debates in jurisprudence and to show how influential theories, notably H. L. A. Hart's and Ronald Dworkin's, bear on that issue.Less
The question of objectivity in legal interpretation has emerged in recent years as an important topic in contemporary jurisprudence. This book addresses the issue of how and in what sense legal interpretation can be objective. It supports the possibility of objectivity in law and spells out the content of objectivity involved. It then provides a defence against the classical, as well as the less well-known, objections to the possibility of objectivity in legal interpretation. The discussion is thoroughly grounded in metaphysics, which sets the book apart from other similar discussions in jurisprudence. The book identifies an important source of resistance to the acceptance of the possibility of objectivity in legal interpretation; a widely held but faulty semantic. It then develops an alternative semantic framework, drawing on influential theories in contemporary philosophy. The book shows that objectivism is a natural, commonsensical position, and rejects the currently popular notion that objectivism requires extravagant or bizarre metaphysics. Furthermore, the discussion presents the opportunity to re-interpret major debates in jurisprudence and to show how influential theories, notably H. L. A. Hart's and Ronald Dworkin's, bear on that issue.
Benjamin Shaer
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199673667
- eISBN:
- 9780191751769
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199673667.003.0116
- Subject:
- Law, Comparative Law, Philosophy of Law
This chapter attempts to make sense of the character of legal interpretation and to assess some of the many claims about how legal interpretation does or should proceed. It sketches a cognitively ...
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This chapter attempts to make sense of the character of legal interpretation and to assess some of the many claims about how legal interpretation does or should proceed. It sketches a cognitively realistic approach to legal interpretation, which seeks to understand such interpretation as a ‘triadic’ process that relates a text to its author or authors, on the one hand, and its interpreter or interpreters, on the other; and which reveals the cognitive tasks that legal interpreters perform in arriving at conclusions about a legal text in the legal context. The chapter is organized as follows. Section 1 identifies some live issues in legal interpretation: the gap between high-level principles and decisions on the ground, and the lack of any clear articulation of how legal interpretation actually works at the level of cognitive process. Section 2 spells out the Relevance Theory framework and its implications for legal interpretation. Section 3 explores the features of legal interpretation by briefly comparing them to those of ‘ordinary’ communication and literary interpretation, and then returns to some of the problems in legal interpretation touched on earlier. Section 4 presents some brief conclusions about the approach to legal interpretation that the chapter has offered.Less
This chapter attempts to make sense of the character of legal interpretation and to assess some of the many claims about how legal interpretation does or should proceed. It sketches a cognitively realistic approach to legal interpretation, which seeks to understand such interpretation as a ‘triadic’ process that relates a text to its author or authors, on the one hand, and its interpreter or interpreters, on the other; and which reveals the cognitive tasks that legal interpreters perform in arriving at conclusions about a legal text in the legal context. The chapter is organized as follows. Section 1 identifies some live issues in legal interpretation: the gap between high-level principles and decisions on the ground, and the lack of any clear articulation of how legal interpretation actually works at the level of cognitive process. Section 2 spells out the Relevance Theory framework and its implications for legal interpretation. Section 3 explores the features of legal interpretation by briefly comparing them to those of ‘ordinary’ communication and literary interpretation, and then returns to some of the problems in legal interpretation touched on earlier. Section 4 presents some brief conclusions about the approach to legal interpretation that the chapter has offered.
Lars Vinx
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199227952
- eISBN:
- 9780191711077
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199227952.003.0005
- Subject:
- Law, Philosophy of Law
Kelsen was a fervent advocate of constitutional entrenchment and of constitutional review by a constitutional court. However, Kelsen's theory of legal interpretation and adjudication suggests that ...
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Kelsen was a fervent advocate of constitutional entrenchment and of constitutional review by a constitutional court. However, Kelsen's theory of legal interpretation and adjudication suggests that judges on a constitutional court will inevitably have taken political decisions more often than not. How can the institution of judicial review be defended as compatible with democracy, given this starting point? What positive contribution can it make to the development of a legality-based conception of political legitimacy? This chapter analyzes Kelsen's answer to this question by discussing his understanding of adjudication and his concept of constitution. It goes on to construct a conception of proper judicial role in a democratic state that is based on the conception of democracy developed in the previous chapter.Less
Kelsen was a fervent advocate of constitutional entrenchment and of constitutional review by a constitutional court. However, Kelsen's theory of legal interpretation and adjudication suggests that judges on a constitutional court will inevitably have taken political decisions more often than not. How can the institution of judicial review be defended as compatible with democracy, given this starting point? What positive contribution can it make to the development of a legality-based conception of political legitimacy? This chapter analyzes Kelsen's answer to this question by discussing his understanding of adjudication and his concept of constitution. It goes on to construct a conception of proper judicial role in a democratic state that is based on the conception of democracy developed in the previous chapter.
Joseph Raz
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199562688
- eISBN:
- 9780191705342
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562688.003.0010
- Subject:
- Law, Philosophy of Law
Interpretation involves explaining, showing, or displaying the meaning of the object of interpretation. Interpretation is therefore often thought to be retrieval, a process of retrieving and ...
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Interpretation involves explaining, showing, or displaying the meaning of the object of interpretation. Interpretation is therefore often thought to be retrieval, a process of retrieving and elucidating the meaning the original has. This chapter shows that the ideas associated with the retrieval picture are mistaken or misleading. It focuses on interpretation of works of art, music, and literature, and offers abstract account of interpretation which can be modified to apply to other standard objects of interpretation (e.g., the law, historical events, rituals, and social customs). The account allows for a more balanced view of the different ways in which authors' intentions can play a role in interpretation.Less
Interpretation involves explaining, showing, or displaying the meaning of the object of interpretation. Interpretation is therefore often thought to be retrieval, a process of retrieving and elucidating the meaning the original has. This chapter shows that the ideas associated with the retrieval picture are mistaken or misleading. It focuses on interpretation of works of art, music, and literature, and offers abstract account of interpretation which can be modified to apply to other standard objects of interpretation (e.g., the law, historical events, rituals, and social customs). The account allows for a more balanced view of the different ways in which authors' intentions can play a role in interpretation.
Joseph Raz
- Published in print:
- 1999
- Published Online:
- March 2012
- ISBN:
- 9780198267904
- eISBN:
- 9780191683404
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198267904.003.0009
- Subject:
- Law, Philosophy of Law
This chapter is a jurisprudential reflection on intention in legal interpretation. The aim of this chapter is to explore an aspect of legal interpretation, so that the theory of law may be ...
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This chapter is a jurisprudential reflection on intention in legal interpretation. The aim of this chapter is to explore an aspect of legal interpretation, so that the theory of law may be understood. The question, ‘what is the law?’ is very much intertwined with the question of how the law should be interpreted. This chapter does not, however, cover practices of interpretation specific to some legal systems. The chapter presents some of interpretation's general characteristics. There are four elements to be considered as a guide to how interpretation should be understood: interpretation is of an original; an interpretation states the meaning of the original; interpretation is subject to assessment; and interpretation is an intentional act.Less
This chapter is a jurisprudential reflection on intention in legal interpretation. The aim of this chapter is to explore an aspect of legal interpretation, so that the theory of law may be understood. The question, ‘what is the law?’ is very much intertwined with the question of how the law should be interpreted. This chapter does not, however, cover practices of interpretation specific to some legal systems. The chapter presents some of interpretation's general characteristics. There are four elements to be considered as a guide to how interpretation should be understood: interpretation is of an original; an interpretation states the meaning of the original; interpretation is subject to assessment; and interpretation is an intentional act.
Scott Soames
- Published in print:
- 2014
- Published Online:
- October 2017
- ISBN:
- 9780691160726
- eISBN:
- 9781400850464
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691160726.003.0015
- Subject:
- Philosophy, American Philosophy
This chapter begins by articulating the principles underlying the two key dimensions of a new, deferentialist, theory of legal interpretation—the identification of original asserted or stipulated ...
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This chapter begins by articulating the principles underlying the two key dimensions of a new, deferentialist, theory of legal interpretation—the identification of original asserted or stipulated content, and the nature of the deference required when new circumstances demand that judges make new law. These principles are then applied to the interpretation of the due process clauses of the Fifth and Fourteenth Amendments to the Constitution of the United States. It sketches one avowedly nondeferentialist conception of judicial responsibility, one straightforwardly deferentialist conception, and one conception that is a hybrid of the two. Taken as competing accounts of the existing norms governing legal interpretation by legally authorized actors (typically the judiciary), it is argued that the real dispute is between the deferentialist and the hybrid view.Less
This chapter begins by articulating the principles underlying the two key dimensions of a new, deferentialist, theory of legal interpretation—the identification of original asserted or stipulated content, and the nature of the deference required when new circumstances demand that judges make new law. These principles are then applied to the interpretation of the due process clauses of the Fifth and Fourteenth Amendments to the Constitution of the United States. It sketches one avowedly nondeferentialist conception of judicial responsibility, one straightforwardly deferentialist conception, and one conception that is a hybrid of the two. Taken as competing accounts of the existing norms governing legal interpretation by legally authorized actors (typically the judiciary), it is argued that the real dispute is between the deferentialist and the hybrid view.
ROBERT HOWSE
- Published in print:
- 2001
- Published Online:
- January 2010
- ISBN:
- 9780199248124
- eISBN:
- 9780191714863
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199248124.003.0003
- Subject:
- Law, EU Law
The creation of the World Trade Organisation (WTO) in 1995 has often been identified with the establishment of a system for adjudicative resolution of disputes which, in its effectiveness and ...
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The creation of the World Trade Organisation (WTO) in 1995 has often been identified with the establishment of a system for adjudicative resolution of disputes which, in its effectiveness and sophistication, surpasses what has been achieved by other international tribunals, such as the International Court of Justice. Under the WTO, member states have access to dispute settlement as of right. A ruling will be adopted as binding unless all the members, including the winning party, vote against its adoption (negative consensus). Determinations of when and how the losing party must act to implement a ruling are subject to arbitration. Should the losing party not implement a ruling in accord with the findings of the arbitrator, retaliation (a withdrawal of trade concessions to the losing party by the winning party) is automatically authorised. This chapter looks at the legitimacy of adjudication and dispute settlement during the first four years of WTO jurisprudence. The role of fair procedures as well as integrity and coherence in legal interpretation in the legitimation of adjudicative decisions is examined.Less
The creation of the World Trade Organisation (WTO) in 1995 has often been identified with the establishment of a system for adjudicative resolution of disputes which, in its effectiveness and sophistication, surpasses what has been achieved by other international tribunals, such as the International Court of Justice. Under the WTO, member states have access to dispute settlement as of right. A ruling will be adopted as binding unless all the members, including the winning party, vote against its adoption (negative consensus). Determinations of when and how the losing party must act to implement a ruling are subject to arbitration. Should the losing party not implement a ruling in accord with the findings of the arbitrator, retaliation (a withdrawal of trade concessions to the losing party by the winning party) is automatically authorised. This chapter looks at the legitimacy of adjudication and dispute settlement during the first four years of WTO jurisprudence. The role of fair procedures as well as integrity and coherence in legal interpretation in the legitimation of adjudicative decisions is examined.
