Interpretivism (legal)
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Interpretivism is a school of thought in contemporary jurisprudence and the philosophy of law. In the English speaking world, interpretivism is usually identified with Ronald Dworkin's theses on the nature of law, which is sometimes seen as a third way between natural law and legal positivism.
The word also covers continental legal hermeneutics and authors such as Helmut Coing and Emilio Betti. Legal hermeneutics can be seen as a branch of philosophical hermeneutics, whose main authors in the 20th century are Heidegger and Gadamer, both drawing on Husserl's phenomenology. Hermeneutics has now expanded to many varied areas of research in the social sciences as an alternative to a conventionalist approach.
In a wider sense, interpretivism includes even the theses of, in chronological order, Josef Esser, Theodor Viehweg, Chaim Perelman, Wolfgang Fikentscher, Castanheira Neves, Friedrich Müller, Aulis Aarnio and Robert Alexy.
The main claims of interpretivism are:
- Law is not a set of given data, conventions or physical facts, but what lawyers aim to construct or obtain in their practice. This marks a first difference between interpretivism and legal positivism. But the refusal that law be a set of given entities opposes interpretivism to natural law too.
- There is no separation between law and morality, although there are differences. This is not in accordance with the main claim of legal positivism.
- Law is not immanent in nature nor do legal values and principles exist independently and outside of the legal practice itself. This is the opposite of the main claim of natural law theory.
[edit] External links
- Stanford Encyclopedia's articles on legal interpretivism, by Nicos Stavropoulos, and on interpretation and coherence in law, by Julie Dickson.
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