Law and Interpretation: Essays in Legal Philosophy

Law and Interpretation: Essays in Legal Philosophy

Law and Interpretation: Essays in Legal Philosophy

Law and Interpretation: Essays in Legal Philosophy

Synopsis

Interpretation has emerged in recent years as one of the most interesting and important elements of legal scholarship. This collection of new essays in law and interpretation provides an overview of this important topic, written by some of the most distinguished scholars in the field. The collection assesses the role of legislative intent in the interpretation of statutes, and in determining legal standards. This collection will appeal not only to lawyers and to legal theorists, but to all scholars of legal discourse.

Excerpt

Interpretation has become one of the main intellectual paradigms of legal scholarship in the last fifteen years. Like the interest in rules during the 1960s and in legal principles during the 1970s, much of legal theorizing in the last decade has been built around the concept of interpretation. In one important respect, however, interpretation is a more ambitious paradigm: it is not only a subject-matter legal philosophers are interested in, but according to some influential philosophers, interpretation is also a general method, a meta-theory of legal theory. Ronald Dworkin, for instance, presents the interpretative method as a rival to the traditional analytical approach to jurisprudence. It has been a central presumption of the latter that there is a clear distinction between the philosophical question: 'What is law?' and the lawyer's question: 'What is the law on this or that matter?', and between these two and the moral question, 'What should the law be . . .?'

Dworkin's recent interpretative theory of law challenges these conceptual distinctions. Accounting for the concept of law, he claims, is inevitably tied up with considerations about what the law is there to settle. Law, he claims, is not only an interpretative enterprise, but must also be accounted for by the very same methods employed by the participants; both theorists and practitioners are engaged in one and the same kind of reasoning, namely, in an attempt to impose the best interpretation on the practice they encounter. Thus, the concept of law and the justification of its particular requirements can no longer be seen as two separate issues.

Whether this methodological development is a turn for the better or worse is one of the main themes in dispute among the contributors to this volume. Dworkin's interpretative theory of law seems to support an anti-positivist stance in legal theory. Interestingly, however, some of those who are most sympathetic to his conclusions forcefully reject his interpretative method, and vice versa. Thus, some of those who would subscribe to many of H. L. A. Hart's conclusions about the relations between law and morality see considerable advantages in Dworkin's interpretative methodological turn. Both camps, however, acknowledge the centrality of interpretation to the understanding of law. After all, legal practice is pervasively interpretative, and unless we have an adequate grasp of what interpretation consists of, we cannot have a clear picture of the practice we purport to understand.

Interpretation is not uniquely, or even typically, a legal concept. In the realm of arts and art criticism it also plays a central role, and this suggests that there are interesting analogies between these two disciplines. Once again, the extent and usefulness of the analogy is subject to controversy . . .

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