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Interpretivism

Interpretivism

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Interpretivism is a school of thought in contemporary jurisprudence
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...

 and the philosophy of law. The main claims of interpretivism are that
  • Law is not a set of given data, conventions
    Convention (norm)
    A convention is a set of agreed, stipulated or generally accepted standards, norms, social norms or criteria, often taking the form of a custom....

     or physical facts, but what lawyer
    Lawyer
    A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...

    s aim to construct or obtain in their practice
    Practice of law
    In its most general sense, the practice of law involves giving legal advice to clients, drafting legal documents for clients, and representing clients in legal negotiations and court proceedings such as lawsuits, and is applied to the professional services of a lawyer or attorney at law, barrister,...

    . This marks a first difference between interpretivism and legal positivism
    Legal positivism
    Legal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. However, the most prominent figure in the history of legal positivism is H.L.A...

    . But the refusal that law be a set of given entities opposes interpretivism to natural law
    Natural law
    Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...

     too.
  • There is no separation between law and morality
    Morality
    Morality is the differentiation among intentions, decisions, and actions between those that are good and bad . A moral code is a system of morality and a moral is any one practice or teaching within a moral code...

    , although there are differences. This is not in accordance with the main claim of legal positivism.
  • Law is not immanent
    Immanence
    Immanence refers to philosophical and metaphysical theories of divine presence, in which the divine is seen to be manifested in or encompassing of the material world. It is often contrasted with theories of transcendence, in which the divine is seen to be outside the material world...

     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.


In the English
English language
English is a West Germanic language that arose in the Anglo-Saxon kingdoms of England and spread into what was to become south-east Scotland under the influence of the Anglian medieval kingdom of Northumbria...

 speaking world, interpretivism is usually identified with Ronald Dworkin
Ronald Dworkin
Ronald Myles Dworkin, QC, FBA is an American philosopher and scholar of constitutional law. He is Frank Henry Sommer Professor of Law and Philosophy at New York University and Emeritus Professor of Jurisprudence at University College London, and has taught previously at Yale Law School and the...

's theses on the nature of law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...

, which is sometimes seen as a third way between natural law
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...

 and legal positivism
Legal positivism
Legal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. However, the most prominent figure in the history of legal positivism is H.L.A...

.

The concept also includes continental legal hermeneutics and authors such as Helmut Coing and Emilio Betti
Emilio Betti
Emilio Betti was an Italian jurist, Roman Law scholar, philosopher and theologian. He is best known for his contributions to hermeneutics, part of a broad interest in interpretation...

. Legal hermeneutics can be seen as a branch of philosophical hermeneutics, whose main authors in the 20th century are Heidegger
Martin Heidegger
Martin Heidegger was a German philosopher known for his existential and phenomenological explorations of the "question of Being."...

 and Gadamer
Hans-Georg Gadamer
Hans-Georg Gadamer was a German philosopher of the continental tradition, best known for his 1960 magnum opus, Truth and Method .-Life:...

, both drawing on Husserl's
Edmund Husserl
Edmund Gustav Albrecht Husserl was a philosopher and mathematician and the founder of the 20th century philosophical school of phenomenology. He broke with the positivist orientation of the science and philosophy of his day, yet he elaborated critiques of historicism and of psychologism in logic...

 phenomenology. Hermeneutics has now expanded to many varied areas of research in the social sciences
Social sciences
Social science is the field of study concerned with society. "Social science" is commonly used as an umbrella term to refer to a plurality of fields outside of the natural sciences usually exclusive of the administrative or managerial 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
Chaim Perelman
Chaïm Perelman was a Polish-born philosopher of law, who studied, taught, and lived most of his life in Brussels. He was among the most important argumentation theorists of the twentieth century...

, Wolfgang Fikentscher
Wolfgang Fikentscher
Wolfgang Fikentscher is a German jurist and legal anthropologist.- Life :Fikentscher earned his Dr. juris and S.J.D at Ludwig Maximilian University of Munich/Germany...

, Castanheira Neves
António Castanheira Neves
António Castanheira Neves is a Portuguese legal philosopher and a professor emeritus at the law faculty of the University of Coimbra....

, Friedrich Müller, Aulis Aarnio and Robert Alexy
Robert Alexy
Robert Alexy is a jurist and a legal philosopher.Alexy studied law and philosophy at the University of Göttingen...

.

External links

  • Stanford Encyclopedia
    Stanford Encyclopedia of Philosophy
    The Stanford Encyclopedia of Philosophy is a freely-accessible online encyclopedia of philosophy maintained by Stanford University. Each entry is written and maintained by an expert in the field, including professors from over 65 academic institutions worldwide...

    's articles on legal interpretivism, by Nicos Stavropoulos, and on interpretation and coherence in law, by Julie Dickson.