The claim that legal theory is best viewed in the light of a theory of interpretation is open to comprehensive and critical examination. Since the interpretative theories of law call into question the main tenets of legal positivism, in method as well as in substance "Interpretation and Legal Theory" sets out to re-examine legal positivism in the light of this interpretative challenge. The author argues that a theory of interpretation, adequately construed, does not undermine the main tenets of legal positivism, as its ...
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The claim that legal theory is best viewed in the light of a theory of interpretation is open to comprehensive and critical examination. Since the interpretative theories of law call into question the main tenets of legal positivism, in method as well as in substance "Interpretation and Legal Theory" sets out to re-examine legal positivism in the light of this interpretative challenge. The author argues that a theory of interpretation, adequately construed, does not undermine the main tenets of legal positivism, as its critics maintain. A general analysis of the concept of interpretation is followed by a comprehensive criticism of Professor R.M. Dworkin's influential theory of interpretation, plus a criticism of the semantic approach to the jurisprudence which is often thought to be its main rival. The second part of the book offers an alternative theory of interpretation in law which is based on the communication model. It is shown that the standard objections to this mode have rested on serious misunderstandings. The theory of interpretation offered here is then brought to bear in defence of some of the more problematic and controversial tenets of legal positivism. Legal positivists are criticized for being committed to the thesis that there must be a clear distinction between "easy cases", where the law can be identified and applied straightforwardly, and "hard cases" where the issue is not determined by the existing legal standards. Having explained the ways in which this is true for legal positivism the author offers a defence based on considerations drawn from the philosophy of language, particularly Wittgenstein's analysis of rule following. Finally, the author considers the age-old question of the role of legislative intents in statutory interpretation, and argues that a very limited form of deference to legislative intents can be derived from the very same considerations which justify one's compliance with an authority's directives in the first place. The discussion throughout is guided by the thesis that interpretation is an exception to the standard understanding of language and communication, as it pertains only to those aspects of understanding which are under-determined by rules or coventions. "Interpretation and Legal Theory" follows the tradition of analytical jurisprudence, and at the same time combines philosophical arguments from the philosophy of language, aesthetics, and moral and political theory.
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