Toward a Theory of Legal Interpretation

2014 ◽  
Author(s):  
Scott Soames
Keyword(s):  
Legal System ◽  
Legal Interpretation ◽  
Empirical Theory ◽  
Legal Norms ◽  
Ideal System ◽  
Legal Texts ◽  
Moral Theories ◽  
The Law

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?

scholarly journals DISTINCTION BETWEEN TRANSACTIONS REQUIRING AND NOT REQUIRING PERCEPTION: GROUNDS AND SIGNIFICANCE

2021 ◽  
Vol 17 (1(63)) ◽  
pp. 160-176
Author(s):  
Юрий Сергеевич ПОВАРОВ
Keyword(s):  
Legal Interpretation ◽  
Dialectical Logic ◽  
Scientific Methods ◽  
Theoretical Methods ◽  
Legal Norms ◽  
Scientific Potential ◽  
The Law

The proposed scientific grouping of transactions into those requiring and not requiring perception has not been systematically reflected in Russian civil legislation; moreover, the scientific potential of this classification is often questioned. Purpose: to explain the nature and significance of the distinction between transactions requiring and not requiring perception; to analyze the approaches used to establish the criterion for such a distinction; to develop a mechanism for determining whether a transaction belongs to a particular classification group; and to study the permissibility of extrapolation of division into other (rather than unilateral transactions) legal acts. Methods: the author uses general theoretical methods of formal and dialectical logic, as well as specific scientific methods such as legal-dogmatic, legal modeling, comparative legal, interpretation of legal norms. Results: the author proves the irrelevance of ignoring a factor of (not) compulsory perception of will and, as a consequence, the significance of the studied gradation (while the classification of a transaction as requiring or not requiring perception affects the conditions and timing of its legal effects, and the interpretation of the transaction as receptive is necessary to establish and comply with the rules on the procedure and the addressee of the notification of will). The author highlights the main models for reflecting the legal role of perception in the application to transactions that need perception; the author assesses positively the approach to identifying a transaction as (non) receptive based on the direct instructions of the law and the essence of the transaction; the idea of the advisability of adapting the division also to legal acts that are not unilateral transactions is carried out.

scholarly journals IS THE LOGIC OF LAW IN CONTRAST TO CHRISTIAN VALUES?

2017 ◽  
pp. 191
Author(s):  
Marko Trajković
Keyword(s):  
Legal System ◽  
Thomas Aquinas ◽  
Legal Norm ◽  
Legal Norms ◽  
Moral Principles ◽  
Squeeze Out ◽  
Real Behavior ◽  
The Law ◽  
The Government

Is it possible for logic of law to squeeze out Christian values, given that the nihilism towards values leads towards the rejection of the major role of the law, which is the protection and realization of values? Is the actual goal of the legal norm, as part of law and logical legal system turned into a command, to establish the behavior which carries out the Christian values it contains? Is the constitution, the law or some other act as the embodiment of the legal norm, really based on certain social and legal values? As opposed to the law, there is a man able to ponder and wonder. Does he live in accordance with the legal norms only out of fear of punishment? Would it be possible for the government to establish the legal system which would be totally based on the fear of sanctions? Can that kind of legal system ever become a stable whole, or might it be destroyed by itself? Is the reason for the failure of the system of the state and law insufficiently centralized government, for example, or the lack of Christian values in their very grounds? The answer to the question posed by St. Thomas Aquinas depends on the answers to the previously posed questions. The question posed by St. Thomas Aquinas is: is the law made only for the evil and the wicked?  However, it would be naive to rely on the tendency of correlation between human behavior and his moral principles. The entire human history confirms the result. We are well equipped to find reasons for what we do, but we are not so good when we are to do something for which we see good reasons, for which the reasons are obvious. We often say to our children: “Do as I tell you”, forgetting that they watch and copy exactly what we do. One of the ways to strengthen the bonds between values-attitudes-behavior is to apply signs for encouragement which are supposed to empower the real behavior.

scholarly journals TREND TO APPROVAL OF THE IDEA OF JUDICIAL LAW MAKING IN PROCEDURAL LEGISLATION AND JUDICIAL PRACTICE

2021 ◽  
Vol 6(72) (3) ◽  
pp. 84-89
Author(s):  
N. N. Lukasheva
Keyword(s):  
Legal System ◽  
Legal Regulation ◽  
Legal Interpretation ◽  
Highly Qualified ◽  
Judicial Practice ◽  
The Law ◽  
Normative Value ◽  
Law Making

The article points out the lack of uniformity in the legal regulation of the issues under study, namely, problems of the abolition of judicial acts, as well as the unjustified differentiation of legal regulation in various procedural codes, in which, to one degree or another, the role of judicial legal interpretation as a source of law is determined. It points out the need to overcome the negative practice of giving normative value to judicial practice, which, as a result, acquires legislative consolidation, and by explanation of the highest judicial instances practice becomes higher than the law. The necessity of determining the limits of the law-making role of the courts is substantiated, as well as the need to amend legislative acts, proceeding from the legal system, in order to give more certainty to legislative provisions, unification of legal regulation in content and form. The legislator needs to introduce certainty into the relevant legal relations, which should not consist in recognizing the juridical obligation of legal positions developed by the highest judicial instances. The credibility of these legal positions should not go beyond recognition by their authoritative opinion of the participants of the relevant collegial judicial bodies – highly qualified professionals.

The Legal Framework for Foundations in the Habsburg Monarchy from 1750 to 1918

2017 ◽  
Vol 1 (2) ◽  
pp. 154-172
Author(s):  
Gabriele Schneider
Keyword(s):  
Public Good ◽  
Legal System ◽  
Legal Framework ◽  
The State ◽  
Habsburg Monarchy ◽  
The Public ◽  
Regulation And Supervision ◽  
Role Of The State ◽  
The Law

Foundations, as permanent funds established by a certain legal act, can serve manifold purposes, but often pursue charitable goals. As such, they play an important role for the public good. Therefore, states always had an interest in fostering foundations by providing a pertinent legal framework. In Austria, this topic has not yet been the focus of scholarship. Through this study some light is shed on the implementation of the law on foundations in the Habsburg Monarchy. It focuses on the role of the state and its legal system regarding the regulation and supervision of foundations from 1750 to 1918. This period is characterized by the sovereigns’ endeavor to regulate the position of foundations via extensive legislation. In particular, a system of oversight for foundations was created in order to guarantee the attainment of their charitable goals. In fact, this system prevailed until the end of the 20thcentury.

The Muslim and the Law: A Brunei Experience

2017 ◽  
Vol 3 ◽  
Author(s):  
Zabaidah Haji Kamaludin
Keyword(s):  
Islamic Law ◽  
Critical Factor ◽  
Legal Issues ◽  
Core Element ◽  
The Core ◽  
Ideal System ◽  
The Law ◽  
Islamic Values

An Islamic system of governance is an ideal system, which is a tantalising objective for many Muslims but often times not achieved in practice. Countries may call themselves ‘Islamic’ but the core element of Islamicity, that of values such as compassion, equity and justice may not have breached the consciousness of their leaders and citizens. Sometimes it is individuals who act as the catalyst for sparking action. For a Muslim, it is his īmān that serves to light his conscience, and guiding him the dispensation of his everyday tasks within his organisation. This individualised īmān may at times serve as a small but critical factor tilting the different organisational functions of government towards integrations under an Islamic system of governance. This paper recounts the challenges of a Muslim engaging in legal issues in a non-Islamic context, seeking to help enable his organisation to undertake the role of incorporating non-Islamic law with Islamic values.

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 PERSPEKTIF HUKUM SEBAGAI LANDASAN PEMBANGUNAN EKONOMI DI INDONESIA (SEBUAH PENDEKATAN FILSAFAT)

Jurnal Hukum ◽  
1970 ◽  
Vol 28 (2) ◽  
pp. 929
Author(s):  
Zulfi Diane Zaini
Keyword(s):  
Economic Development ◽  
Economic Behavior ◽  
Economic Democracy ◽  
Legal Norms ◽  
Economic Area ◽  
Margin Of Appreciation ◽  
National Ideology ◽  
The Law ◽  
Effective Function

The role of law in economic development of a nation is something that cannot be ignored its existence. So it is very obvious, if the law of a nation is effective, economic development would be easy to implement. But otherwise if the law has not effective function, it can definitely be an adverse impact on economic development. This condition also exists to Indonesia as a country which is still developing the economic area. Moreover, when Indonesia declared in its constitution as a legal state (rechtstaat). From this it is also implied that Indonesia wants two things: Firstly, the law is expected to function, and secondly, the law can serve, then economic development would be easy to be realized.The economic nationalism spirit in the globalization era shows increasing realization of the urgency to be the national economy which is strong, tough and independent. Economic Democracy is based on the popular and family, as well as cooperative efforts animates economic behavior of individuals and communities. Thus Indonesia Economic Law in the form of the Margin of Appreciation becomes benchmark for the justification of the legal norms which is enforced so the core values of Pancasila as the national ideology is kinship with the community life ideal form in society, is society kinship, so in the field of economics, Pancasila ideology wants kinship (familial Economic Democracy Article 33 of the 1945 Constitution), which is realized through the welfare state.Keywords: Law, Basis, Economic

scholarly journals THE ROLE OF JUDICIAL PRACTICE IN THE LEGAL SYSTEM: RUSSIAN EXPERIENCE IN THE WORLD CONTEXT

2017 ◽  
pp. 40-49 ◽  
Author(s):  
Виктор Момотов ◽  
Viktor Momotov
Keyword(s):  
Legal System ◽  
Negative Attitude ◽  
Case Law ◽  
Legal Framework ◽  
Legal Systems ◽  
Legal Norms ◽  
Judicial Practice ◽  
The Usa ◽  
Anglo American

In Russian legal science there is a wide-spread belief according to which legal precedents are not sources of Russian law, because Russian legal system forms a part of continental legal system. Various researchers believe that judicial practice does not contain legal norms and consequently case law is not a component of Russian legal framework. The present paper contains the theoretical and historical legal research of the place and role of case law in Anglo-American and continental legal systems. It’s shown that for long historical periods legal precedents were recognized as sources of law not only in Great Britain and the USA, but also in major European legal systems, while at the present time differentiation of legal systems with respect to their attitude towards case law is becoming outdated. Furthermore, based on the research of various legal scholars’ traditions (principally of the positivistic and the sociological traditions) this article demonstrates that negative attitude towards case law is largely determined by the formalistic and obsolete understanding of the term ”source of law”, coming from the misinterpretation of positivism. The paper also presents the current development trends of case law as a source of law. In particular the article outlines the proactive interpretations of new statutory provisions issued by the Plenum of the Supreme Court of the Russian Federation, the global uniqueness of such interpretations and the influence of scientific–technological progress and public needs on the highest court’s interpretations. The mutual interference of case law and statutory law is shown.

The gypsy’s lot: myth and reality

2017 ◽  
Author(s):  
Robert Jago
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Lived Experiences ◽  
European Court ◽  
The Law ◽  
The Uk ◽  
The Relationship

This chapter focuses on the lived experiences of gypsies (collectively referred to as gypsies rather than Roma or travellers). The author argues that the relationship between the legal system and the specific lifestyle of this group is itself causing many tensions which cannot be separated from the long-held myths about gypsies. Jago shows how the standing of gypsies in the UK legal system has, in turn, become the object of various myths. He demonstrates how judgements by the European Court of Human Rights in favour of gypsy claims created in many an image of the law being always on the side of the gypsy. A perception which Jago demonstrates is far from true. After addressing the nature and role of myths in general the author illustrates the tension between positive, romanticised myths about the freedom of gypsy lifestyle and three derogatory myths, namely gypsies as "child-snatchers", as thieves and as "land grabbers". Jago illustrates that these myths are linked to deep-rooted beliefs around property and its ownership.

Interpreting Multilingual Legislation

2019 ◽  
pp. 183-208
Author(s):  
Janny H.C. Leung
Keyword(s):  
Legal Interpretation ◽  
Legal Texts ◽  
Constituent Group ◽  
Legal Outcomes ◽  
The Law ◽  
The Cost

This chapter discusses the intricacies of interpreting multilingual legal texts. Multiplicity of legal languages potentially amplifies linguistic indeterminacy, which in turn contributes to legal indeterminacy. It would be a nightmare for a bilingual or multilingual jurisdiction if the application of two or more language versions of the law to the same case leads to two or more different legal outcomes. Such legal indeterminacy could give rise to chaos. Indeed, these nightmares have periodically haunted bilingual and multilingual jurisdictions. Established rules of legal interpretation, having been derived with the assumption that there is only one official text of the law, are not always helpful in resolving interpretation problems in a multilingual jurisdiction. In multilingual jurisdictions, the authority of the law is shifted away from the text that represents it. The cost of linguistic inclusivity is that each constituent group of a multilingual jurisdiction has to surrender predictability of legal outcome derivable from a single version of the law.

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