Metodo

International Studies in Phenomenology and Philosophy

Series | Book | Chapter

213507

The normativity of rules of interpretation

Tomasz Gizbert-Studnicki

pp. 243-254

Abstract

Rules of interpretation of law have both heuristic and justificatory functions. They are normative in the sense that they deliver justificatory reasons for interpretative decisions. The normativity of these rules cannot be explained by recourse to the concept of convention. Rules of interpretation are based on various (and sometimes conflicting) values of political morality. Rules of interpretation reduce the complexity of the judicial decision-making process by delivering second order reasons for interpretative decisions—the first order reasons being values of political morality that underlie those rules. The reasons supplied by rules of interpretation are not exclusionary, as their application does not exclude the need for recourse to the first order reasons. Such recourse is necessary if particular rules of interpretation remain in conflict with respect to the case to be solved. The question of justifying rules of interpretation is not a semantic question. These rules are not supported by any definite semantic theory, but by political philosophy, justifying the adoption of a certain set of values pertaining to political morality. In this respect, certain differences pertaining to the mode of resolution of conflicts between various rules may be observed between common law and civil law legal cultures.

Publication details

Published in:

Araszkiewicz Michał, Banaś Paweł, Gizbert-Studnicki Tomasz, Płeszka Krzysztof (2015) Problems of normativity, rules and rule-following. Dordrecht, Springer.

Pages: 243-254

DOI: 10.1007/978-3-319-09375-8_18

Full citation:

Gizbert-Studnicki Tomasz (2015) „The normativity of rules of interpretation“, In: M. Araszkiewicz, P. Banaś, T. Gizbert-Studnicki & K. Płeszka (eds.), Problems of normativity, rules and rule-following, Dordrecht, Springer, 243–254.