Interpretative conventions and legal positivism

Abstract

The thesis that the content of law depends on the "interpretative conventions" of legal practice implies that what the rules establish is not always determined by their literal meaning. To leave aside the literal interpretation of a word (by extending or limiting its ordinary meaning) or the literal interpretation of a rule (for example, by considering a circumstance as an exception, even if it is not explicitly mentioned), and to argue that it is what the law requires means entering the realm of the implicit. But what is "the implicit"? Does it consist in the criteria implicit in the social practice of law (i.e., in the interpretative conventions "without restrictions") or only in what the legislator has implicitly established (i.e., in the interpretative conventions "with restrictions")? In light of this distinction, recently pointed out by Cristina Redondo, I discuss some of the questions she raises about the "relevance thesis" of the legal system as something other than the "relevance hypothesis", and I critically discuss her view that the choice between the interpretative conventions "without restrictions" and those "with restrictions" implies a choice between inclusive and exclusive legal positivism.