The Vagueness of the Law and the Importance of its Interpretation

2017 ◽  
Author(s):  
Dan Jerker B. Svantesson
Keyword(s):  
Legal Theory ◽  
Legal Philosophy ◽  
Legal Interpretation ◽  
Guiding Principles ◽  
The Law

This chapter keeps us in the domain of legal theory and legal philosophy and discusses how the vagueness of the law explains why different people interpret the law differently. It also places emphasis on the importance of the law’s interpretation and provides a framework that ought to guide our interpretation of law so as to maximise our prospect of reaching jurisdictional interoperability. That framework consists of three main guiding principles: (1) ‘fairness’, (2) ‘consequence focus’, and (3) ‘harmonisationalism’. Further, it discusses some common, and particularly unhelpful, approaches to legal interpretation.

scholarly journals The Theory of Interpretation in Solving Contemporary Legal Issues: With A Focus on the Instrument of Ijtihad

2018 ◽  
Vol 150 ◽  
pp. 05056
Author(s):  
Abdulrahman M.A.Albelahi ◽  
A. Ali ◽  
Faten Mohmed ◽  
Metwally Ali
Keyword(s):  
Islamic Law ◽  
Legal Theory ◽  
Legal Issues ◽  
Legal Interpretation ◽  
Way Of Life ◽  
Essential Question ◽  
Judicial Reasoning ◽  
The Law ◽  
Law And Legislation

Since the beginning, legal theory has concerned itself with the establishment of principles and precepts that govern the procedure of legal interpretation, from the initial stages of the judicial reasoning down to the promulgation of ruling and their implementation, Islam is a total way of life. Muslims are obliged to abide by the rules of Allah in every aspect of their lives, always and wherever they live. However, the actual rules of Allah as given in the Qur’an and the sunna are limited. The Qur’an contains only six hundred verses directly related to laws, and there are approximately two thousand hadiths. The function of interpretation is to discover the intention of the Lawmaker of the matter, therefore, interpretat primarily concerned with the discovery of that which is rot self-evident the objective of interpretation is to ascertain the intention c the Lawmaker with regard to what has been left unexpressed as a matter of necessary interference from the surrounding circumstances. Sometimes, the textual sources did not provide detailed guidelines in which to derive the law, and then the role of interpretation is important to determine the law. In Islamic law the role of Ijtihad undoubtedly important in order to meet new problems. But some of the Jurist contended that the role of Ijtihad had ended and we have to follow the rule that has been stated. An explanation given to this trend is that a point had been reached at which all essential question of law had been thoroughly discussed and further deliberation was deemed unnecessary. In Common law, man-made law and legislation are related to one another within a philosophy of law. Parliament makes law and it is the duty of the courts to give effect to them if properly enacted. While courts may rule that a particular statute or section is invalid for various reasons such as unconstitutionality, they cannot say, "We shall change this Act because it is not appropriate". That function belongs to Parliament (Wu Min Aun 1990: 120). So as in Islamic law, the Lawmaker is Allah S.w.t and the sacred text (Quran) is legislated due to His intention whereas Sunnah of the Prophet Muhammad is enacted due to the Prophet's intention. Therefore, Ulama of Usul Fiqh, in making any Ijtihad, they are du y bound to be guided by Quran and Sunnah.

scholarly journals THEORIES OF VAGUENESS AND THEORIES OF LAW

Legal Theory ◽  
2019 ◽  
Vol 25 (2) ◽  
pp. 132-152
Author(s):  
Alex Silk
Keyword(s):  
Rule Of Law ◽  
Legal Theory ◽  
Theory And Practice ◽  
Legal Interpretation ◽  
Philosophy Of Law ◽  
Conventional Meaning ◽  
The Rule Of Law ◽  
Judicial Practice ◽  
Content Determination ◽  
The Law

ABSTRACTIt is common to think that what theory of linguistic vagueness is correct has implications for debates in philosophy of law. I disagree. I argue that the implications of particular theories of vagueness on substantive issues of legal theory and practice are less far-reaching than often thought. I focus on four putative implications discussed in the literature concerning (i) the value of vagueness in the law, (ii) the possibility and value of legal indeterminacy, (iii) the possibility of the rule of law, and (iv) strong discretion. I conclude with some methodological remarks. Delineating questions about conventional meaning, legal content determination, and norms of legal interpretation and judicial practice can motivate clearer answers and a more refined understanding of the space of overall theories of vagueness, interpretation, and law.

scholarly journals Dennis Patterson on Wittgenstein

2021 ◽  
Vol 6 (2) ◽  
pp. 99-106
Author(s):  
V. V. Ogleznev ◽  
Keyword(s):  
Philosophy Of Language ◽  
Legal Theory ◽  
Full Scale ◽  
Legal Philosophy ◽  
Legal Interpretation ◽  
Rule Following ◽  
Philosophical Investigations ◽  
Special Approach ◽  
Legal Theorist

Dennis Patterson, modern American legal theorist, is one of the active supporters of the importance and significance of later Wittgenstein’s ideas for resolving legal philosophy problems, including legal indeterminacy problem. On the basis of Wittgenstein’s ideas about rule-following and acting in accordance with rule, he developed his own special approach to law and legal interpretation. Although there are some doubts and possible objections that he understood and interpreted «Philosophical Investigations» correctly, it should be recognized that Patterson made a full-scale (and sometimes very convincing) attempt to explicate Wittgenstein’s thoughts in a quite different context, namely, in the context of legal theory. His treatment of wittgensteinian philosophy of language continues to be interesting and sound, despite the criticisms that have been made against his approach. It is in fact very hard to find among modern legal philosophers or theorists someone who could interpret Wittgenstein in a more sophisticated way than Patterson has done

Tending the Garden: Equity and Exscription

Pólemos ◽  
2017 ◽  
Vol 11 (1) ◽  
Author(s):  
Jan-Patrick Oppermann
Keyword(s):  
Legal Theory ◽  
Legal Philosophy ◽  
The Political ◽  
Legal Interpretation ◽  
Conceptual Space ◽  
The Third ◽  
Modest Contribution ◽  
Intellectual Capacity ◽  
Critical Legal Theory ◽  
Philosophical Origin

Abstract The first part of this essay means to make a modest contribution to the critical – that is to say investigative and non-traditional – study of the philosophical origin, sense, and parameters of the concept of equity. Its focus will at first be on Aristotle. Then I will seek to widen the Aristotelian concept of equity by a consideration of the moral and intellectual capacity of “enlarged mentality” as found in Hannah Arendt’s interpretation of Kant. In doing so, I will actively seek to loosen the legal or judicial bonds of this concept, instead allowing it to freely enter a larger conceptual space involving the political and the psychological. In the second part of the essay, this larger conceptual space leads me to a wider meditation with speculative moments concerning the possibility of an ontological extension of a trans-legal interpretation of equity through a consideration of some aspects of the work of French philosopher Jean-Luc Nancy, particularly his notion of “exscription.” In the third part of the essay, I then supplement this Nancean meditation with a psychological turn focusing on Nancy’s commentary on Freud’s remark on the “extension of psyche.” I offer these speculative moments to step beyond Aristotelian and Arendtian/Kantian constraints and also in order to advance possible philosophical exploration of equity and justice against overly narrow containers in “legal philosophy” including “critical legal theory.”

scholarly journals The Essence and Approaches to the Interpretation of Law in the Works of Domestic Scholars

2019 ◽  
Vol 87 (4) ◽  
pp. 13-22
Author(s):  
V. K. Antoshkina
Keyword(s):  
Legal Theory ◽  
Rapid Development ◽  
Scientific Work ◽  
Legal Interpretation ◽  
Philosophical Foundations ◽  
Legal Method ◽  
Analysis And Synthesis ◽  
The Law ◽  
Basic Approaches ◽  
Definition Of

The legal theory of interpretation was the subject of study and research by legal scholars, both practitioners and theoreticians for centuries. Despite the fact that this scientific work allows us to outline the basic approaches to determining the components of the interpretation theory, its study does not stop today, because of the rapid development of society, the emergence of new types and varieties of relations, all spheres of life globalization of sets new challenges, including to the jurists. All these factors make it necessary to reconsider the established approaches, to adapt to new conditions of being, which is quite characteristic of the law interpretation practice. That paper is aimed at identifying approaches to the essence and concept of legal interpretation as a complex, multi-faceted process, taking into account the achievements of national science. The aim is offered to be realized through the fulfillment of the following tasks: highlighting and analysis of the basic approaches, established in the national legal science to law interpretation practice in recent decades and outlining directions of further scientific research in this field. It will provide a comprehensive approach to determining the main characteristics and nature of the law interpretation process at the present stage. To achieve that goal, the author used methods of analysis and synthesis to reflect the unity and difference of views on the phenomenon of the study, and also used a comparative legal method and a systematic one. The author outlined the material in chronological order on the topics of scientific works, their main directions, indicating the main views on the nature of legal interpretation or its individual components. The article demonstrates the way the definition of law interpretation activity has changed, evolved and modernized. We can conclude that the issues that are of most interest of domestic law researchers are concepts and purpose, subjects and objects of interpretation, principles, boundaries, means, rules, results, philosophical foundations of law interpretation activity, features of interpretation depending on the sphere of law characteristics. At the same time, there are promising scientific researches in the mentioned field of law and philology, philosophy, as well as reconsidering the theory of interpretation within certain spheres of law. It should be noted that some ideas about amending the rules and methods of interpretation expressed by scholars in the works are reflected in the current legislation, but, at the same time, that process is not systematic, so it is necessary to step up efforts in the mentioned direction.

Semantics and Legal Interpretation (Further Thoughts)

1989 ◽  
Vol 2 (2) ◽  
pp. 181-191 ◽  
Author(s):  
David O. Brink
Keyword(s):  
Judicial Review ◽  
Legal Theory ◽  
Constitutional Theory ◽  
Legal Interpretation ◽  
General Terms ◽  
Legal Provisions ◽  
Specific Activities ◽  
The Law ◽  
Theoretical Considerations ◽  
Proper Theory

In my article “Legal Theory, Legal Interpretation, and Judicial Review” I tried to do three main things. First, I tried to establish a link between familiar issues within legal theory about the nature and determinacy of the law and familiar issues within constitutional theory about the scope and record of judicial review via their common dependency on assumptions about the nature of legal interpretation. Second, I argued that a proper theory of interpretation has at least two important components: a theory of the semantics of legal terms and a theory about how best to characterize the purposes or intentions underlying legal provisions. Third, I sketched my own account of these two components of legal interpretation and then explored their implications for these familiar disputes within legal theory and constitutional theory. In particular, the semantic claims that I outlined require us (a) to distinguish between the meaning or reference of legal terms and people’s beliefs about the extension of those terms and (b) to rely on theoretical considerations, of various kinds, in ascertaining the extension of general terms occurring in legal provisions. The account of underlying purpose that I sketched requires legal interpreters to identify the purpose of a legal provision with the abstract values that the framers of that provision sought to implement, rather than with the specific activities that they sought to regulate, and then to determine the extension of these values (i.e., the activities that these provisions, properly understood, do regulate) by appeal to theoretical considerations about the nature of these principles and policies. These interpretive claims, I argued, tend to vindicate a belief in the determinacy of the law in hard cases and the style, if not the content, of the Court’s exercise of judicial review in cases concerning individual rights, against worries that in these cases it has exceeded the scope of legitimate judicial review.

scholarly journals Aktualność operatywnego modelu wykładni prawa w obliczu postmodernizmu

Prawo ◽  
2016 ◽  
Vol 320 ◽  
pp. 165-176
Author(s):  
Małgorzata Szymańska
Keyword(s):  
Legal Theory ◽  
Point Of View ◽  
Legal Positivism ◽  
Legal Interpretation ◽  
Critical Approach ◽  
Legal Text ◽  
Modern Times ◽  
The Face ◽  
Postmodern Philosophy ◽  
The Law

The validity of the operative model of legal interpretation in the face of postmodernismDue to postmodernist philosophy is becoming summary increasingly popular this article concerns the validity of a legal interpretation model commonly used in modern times with regard to the postmodernist point of view. Although this problem is widely described in Western literature, in Poland, on the contrary, it is gaining popularity only among philosophers of law. The aim of the article is to present the critical approach of postmodernist philosophy to existing order and demonstrate its attitude towards interpretation of the law. It should be noted that postmodernism has no ambition of constructing its own model of legal interpretation, but comments on and reviews all that has been said on this issue in the legal theory and philosophy of law. This is due to the fact that postmodernism is hostile to all methodologies, modelling theories and theoretical constructions. On the other hand, based on the general assumptions of postmodern philosophy, a postmodern view on the interpretation of the law can be derived. The article discusses deconstructionism, hermeneutics and intertextuality as methods of creating the meaning of a legal text during interpretation, acceptable by postmodernism. The study also presents criticism of the assumption of rational legislator proposed by legal positivism. In this respect postmodernism makes a real revolution in the field of law enforcement, prioritizing the interpreter instead of the legislator, and the creation of a legal text meaning during the process of legal interpretation in place of meaning determination.

scholarly journals FEMINIST LEGAL THEORY DALAM TELAAH PARADIGMA: SUATU PEMETAAN FILSAFAT HUKUM

2018 ◽  
Vol 47 (1) ◽  
pp. 56
Author(s):  
Aditya Yuli Sulistyawan
Keyword(s):  
Critical Theory ◽  
Legal Theory ◽  
Legal Philosophy ◽  
Feminist Legal Theory ◽  
The Law

Feminist Legal Theory (FLT) is a groundbreaking thought against the enactment of the law against women. As one of the schools of thought, the distinctiveness of FLT can not be freely explained. The explanation of this will only be done precisely by the 'umbrella philosophy' called the paradigm. Through the paradigm, FLT will be placed in one paradigm, according to its ontology, epistemology, and methodology. In summary, the purpose of this paper is to create a mapping of legal philosophy to FLT. Based on the discussion, FLT can eventually be mapped as one of the flows within the Critical Theory et. al. paradigm.

scholarly journals Wartości w teorii prawa Jerzego Wróblewskiego

2018 ◽  
Vol 2 (2) ◽  
pp. 258-272
Author(s):  
Jerzy Leszczyński
Keyword(s):  
Legal Theory ◽  
Legal Culture ◽  
Legal Positivism ◽  
Legal Interpretation ◽  
Legal Certainty ◽  
Evaluation Practices ◽  
The Law ◽  
Sophisticated Version

The article presents the role of values and evaluation practices in Jerzy Wróblewski`s legal theory. An overview of the theory includes here the interpretation and the application of the law, in both of which Wróblewski shows the axiological choices made by a lawyer. These choices are only partly limited by the interpretative directives, those generally accepted in a legal culture. The author of the article describes the two ideologies (normative theories), distinguished by Wroblewski, of the legal interpretation (and of the application of the law), which are contradictory to each other as they refer to opposing values: legal certainty and flexibility of law. A third type of ideology, identified by Wróblewski refers to the value of rationality and tries to mitigate the contradictions of the previous two. Some similarities between Wróblewski`s legal theory and the theory of H.L.A.Hart may allow to treat him as the co-founder of a sophisticated version of legal positivism.

ИЗМЕНЕНИЕ ПАРАДИГМЫ МЕТОДОЛОГИИ ЮРИСПРУДЕНЦИИ

2019 ◽  
Vol 13 ◽  
pp. 32-40
Author(s):  
Ю. М. Оборотов
Keyword(s):  
Legal Theory ◽  
Research Strategy ◽  
The State ◽  
New Paradigm ◽  
Methodological Question ◽  
Modern Development ◽  
Decisive Importance ◽  
The Subject ◽  
Methodological Approaches ◽  
The Law

В современной методологии юриспруденции происходит переход от изучения состо­яний ее объекта, которыми выступают право и государство, к постижению этого объек­та в его изменениях и превращениях. Две подсистемы методологии юриспруденции, подсистема обращенная к состоянию права и государства; и подсистема обращенная к изменениям права и государства, — получают свое отображение в концептуальной форме, методологических подходах, методах, специфических понятиях. Показательны перемены в содержании методологии юриспруденции, где определяю­щее значение имеют методологические подходы, определяющие стратегию исследова­тельских поисков во взаимосвязи юриспруденции с правом и государством. Среди наи­более характерных подходов антропологический, аксиологический, цивилизационный, синергетический и герменевтический — определяют плюралистичность современной методологии и свидетельствуют о становлении новой парадигмы методологии юриспру­денции.   In modern methodology of jurisprudence there is a transition from the study the states of its object to its comprehension in changes and transformations. Hence the two subsystems of methodology of jurisprudence: subsystem facing the states of the law and the state as well as their components and aspects; and subsystem facing the changes of the law and the state in general and their constituents. These subsystems of methodology of jurisprudence receive its reflection in conceptual form, methodological approaches, methods, specific concepts. Methodology of jurisprudence should not be restricted to the methodology of legal theory. In this regard, it is an important methodological question about subject of jurisprudence. It is proposed to consider the subject of jurisprudence as complex, covering both the law and the state in their specificity, interaction and integrity. Indicative changes in the content methodology of jurisprudence are the usage of decisive importance methodological approaches that govern research strategy searches in conjunction with the law and the state. Among the most characteristic of modern development approaches: anthropological, axiological, civilization, synergistic and hermeneutic. Modern methodology of jurisprudence is pluralistic in nature alleging various approaches to the law and the state. Marked approaches allow the formation of a new paradigm methodology of jurisprudence.

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