Online research in philosophy

What can a philosophical analysis of the concept of interpretation contribute to legal theory? In his recent book,Interpretation and Legal Theory, Andrei Marmor proposes a complex and ambitious analysis as groundwork for his positivist assault on “interpretive” theories of law and of language. I argue (i) that the crucial element in Marmor's analysis of interpretation is his treatment of Ludwig Wittgenstein's remarks on following rules, and (ii) that a less ambitious analysis of interpretation than Marmor's can take better advantage of those insights about rules. I explore some implications of such an analysis for the role of interpretation in legal reasoning.

Abstract. The paper argues for the following points: (1) Marmor's own understanding of "legal positivism" is different from the understanding defended, e.g., by Herbert Hart and Norberto Bobbio, and apparently misleads him into the wrong track of a theoretical inversion; (2) Marmor's two-stages model of (legal) interpretation—the understanding-interpretion model—provides no support for Marmor's own positivistic theory of law; (3) Marmor's concept of interpretation is at odds both with the basic tenets of Hartian and Continental methodological legal positivism, on the one hand, and with the actual practice of legal interpretation in the Western world, on the other hand; (4) Marmor's concept of an easy case is likewise objectionable.

There are two possible ways to understand form and substance in legal reasoning. The first refers to the distinction between concepts and their applications, whereas the second concentrates on the difference between authoritative and non-authoritative reasons. These approaches refer to the formalistic and positivistic conceptions of the law, the latter being the author's point of departure. Nevertheless, they are both helpful means of analysis in legal interpretation. Interpretation is divided into formal and substantive justification. They have certain functions and they are utilized in interaction. Authoritative reasons and formal reasoning constitute the necessary point of departure. However, substantive reasons are also necessary in order to justify choices included in interpretation. In addition to formal and substantive reasoning, the role of legal concepts is analysed.

Interest in interpretation has emerged in recent years as one of the main intellectual paradigms of legal scholarship. This collection of new essays in law and interpretation provides the reader with an overview of this important topic, written by some of the most distinguished scholars in the field. The book begins with interpretation as a general method of legal theorizing, and thus provides critical assessment of the recent "interpretative turn" in jurisprudence. Further chapters include essays on the nature of interpretation, its objectivity, the possible determinacy of legal standards, and their nature. Concluding with a series of articles on the role of legislative intent in the interpretation of statutes, this work offers new and refreshing insights into this old controversy.

If legal aid means nothing more than legal representation in court, then to that extent there is a right to legal aid, although of limited availability. It is a right that has been found to be implicit, in various legal systems and in human rights instruments. But a right to legal aid could mean so much more than a limited right to legal representation. I argue for legal aid in its broadest sense as a fundamental human right, guaranteeing public access not only to legal institutions and legal representation, but as well to legal information, legal advice, and legal education and knowledge. The key to establishing a right to a broader idea of legal aid lies in understanding the role of the state from a human rights perspective rather than a welfarist one. After reviewing cases and human rights treaties that describe a right to legal representation, I conclude that even that right is available only in limited circumstances. I then outline a new argument for a fundamental human right not only to legal representation, but to 'legal aid' more broadly understood.

Human reasoning and legal analysis -- Paradigms and the process of legal analysis -- Logic, rhetoric, and legal analysis -- Advanced analytical tools in legal analysis -- Complex legal analysis and communication.

The problem of the legal person is a central issue in legal philosophy and the theory of law. In this article I examine the semantic meaning of the concept of the person in Russian philosophy at the turn of the twentieth century, considered to be the "Golden Age" of Russian legal thought. This provides an overview of the conception of the personality in the context of different legal approaches (theory of natural law, legal positivism, the psychological legal doctrine, and the sociological school of law). I indicate a polemic among the theories of the person and attempts to create an integral concept of the legal subject. In addition I present an analysis of the relation between the concepts of the legal subject and the moral person, which personify fundamental features of law and morality. In order to demarcate the notions of individual and the legal subject, I focus on doctrines of the artificial person or the juridical person.

This article proposes a formal analysis of a fundamental aspect of legal reasoning: dealing with normative conflicts. Firstly, examples are illustrated concerning the dynamics of legal systems, the application of rules and exceptions, and the semantic indeterminacy of legal sources. Then two approaches to cope with conflicting information are presented: the preferred theories of Brewka, and the belief change functions of Alchourrón, Gärdenfors, and Makinson. The relations between those approaches are closely examined, and some aspects of a model of reasoning with normative conflicts are outlined. Since this model takes into account an ordering of the involved regulations, criteria to order legal norms are finally specified.

A number of important legal theorists have recently argued for metaphysically realist approaches to legal determinacy grounded in particular semantic theories or theories of reference, in particular, views of meaning and reference based on the works of Putnam and Kripke. The basic position of these theorists is that questions of legal interpretation and legal determinacy should be approached through semantic meaning. However, the role of authority (in the form of lawmaker choice) in law in general, and democratic systems in particular, require that these realist solutions to the problem of legal determinacy be rejected, or at least significantly revised.