Interpretation and Legal Theory by Andrei Marmor

By Andrei Marmor

It is a revised and broadly rewritten version of 1 of the main influential monographs on felony philosophy released lately. Writing within the creation to the 1st version the writer characterised Anglophone philosophers as being “…divided, and infrequently waver[ing] among major philosophical pursuits: the ethical review of legislations and criminal associations, and an account of its genuine nature.” Questions of technique have consequently tended to be sidelined, yet have been certain to floor ultimately, as they've got within the later paintings of Ronald Dworkin. the most goal of this e-book is to supply a serious review of Dworkin’s methodological flip, clear of analytical jurisprudence in the direction of a idea of interpretation, and the problems it offers upward push to. the writer argues that the significance of Dworkin’s interpretative flip isn't that it offers an alternative choice to “semantic theories of legislations” (a doubtful concept), yet that it offers a brand new notion of jurisprudence, aiming to give itself as a entire rival to the conventionalism show up in criminal positivism. additionally, as soon as the interpretative flip is thought of as an total problem to conventionalism, it really is more uncomplicated to determine why it doesn't confine itself to a critique of strategy. legislations as interpretation calls into query the most tenets of its positivist rival, in substance in addition to approach. The e-book re-examines conventionalism within the mild of this interpretative problem.

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I will begin with a brief presentation of Dworkin’s constructive model of interpretation, evaluating some of its strengths and weaknesses, and then I will proceed to focus on the methodological argument, offering a critique of Dworkin’s conception of the relations between legal theory and legal practice. A critique of Dworkin’s substantive argument against legal positivism will be discussed in later chapters. The gist of the critic is, however, that the first premise of the framework argument is false: it is not the case that every conclusion about what the law is, necessarily depends on interpretation (Chapter 7).

Thus, according to Hart’s view, we encounter two types of normative statement: 1. Made by people who believe in the validity of the normative system (that is, fullblooded normative statements), and 2. Made as statements about (1) by someone who does not necessarily believe in the validity of the norms. Raz (1975: 171) recognizes the same two varieties of explanation of norms (which he labels ‘normative based’ and ‘belief based’, respectively) and acknowledges them as the basic types. However, he also argues that a third category, which he calls ‘normative statements from a point of view’ (1975: 170–77) or ‘detached legal statements’ (1979: 153), cannot be reduced to either (1) or (2).

In fact, the general argument is very similar in both of these cases. Roughly, the framework of Dworkin’s substantive argument runs as follows: 1. Each and every conclusion about what the law is in a given case is a result of interpretation. 2. Interpretation is essentially an attempt to present its object in the best possible light. 3. Therefore, interpretation necessarily involves evaluative considerations. 4. And therefore, every conclusion about what the law is, necessarily involves evaluative considerations.

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