Theory Of Legal Interpretation Research Articles

Penafsiran Hukum Waris Beda Agama di Indonesia

In classical fiqh studies, most scholars agree that Muslims and non-Muslims do not inherit from each other. Jumhur's opinion is stated implicitly in KHI, which says that heirs must be Muslim. After the 1995 Supreme Court decision regarding obligatory wills for heirs of different religions, differences of opinion began to occur over inheritance from different religions. Some follow this jurisprudence, while others still hold the jumhur opinion in classical fiqh. This article attempts to analyze the different interpretations of the regulations regarding heirs of different religions by using the theory of legal interpretation. This article is qualitative research with a normative juridical approach. The research data was obtained from various literature relevant to the object of this study. This article concludes that, in reading the regulations regarding heirs of different religions, there are three methods of legal interpretation, namely: first, a grammatical interpretation which results in the conclusion that non-Muslim heirs have no rights over the heir's assets; second, an analogical interpretation that can be used to make an analogy of a mandatory will for children or adoptive parents with the status of non-Muslim heirs; third, a sociological or teleological interpretation that functions more flexibly because it can be adapted to the context of social values that grow and develop in society.

Development of the Theory of Interpretation of Law in Western European Jurisprudence

The article shows the main approaches to the theory of interpretation and legal interpretation in Western European philosophical and legal science. The art of interpretation has its origins in ancient times and has developed and is developing in various directions by representatives of different sciences. It seems justified to start the research with a general theory of interpretation, followed by a transition to legal interpretation (interpretation of law). At the same time, normative interpretation is considered as a link through which the transition from interpretation in general to legal interpretation takes place. Only the works of representatives of the Romano-German law school have been analyzed. Moreover, both works that belong to the classics of philosophy and jurisprudence, and the works of modern researchers. It is shown that the fundamental ideas of the classics of the theory of interpretation have been developed in the works of modern lawyers. The author proceeds from the fact that the peculiarities and patterns of the formation and formation of the Romano-Germanic legal family significantly influenced the views and methodological approaches of lawyers representing these legal systems. On the basis of modern research, a number of conclusions are drawn that seem important for the modern theory of interpretation of law and legal practice. Attention is focused on the fact that it is unacceptable to identify political and specifically legal interpretation. The author draws attention to the fact that currently the research of the theory of interpretation is not limited to the framework of national legal systems and goes to the global level. This article should be considered as one of their possible attempts to study the theoretical and legal patterns existing in the theory of legal interpretation. The article may be of interest to specialists in the fi eld of general theory of law and comparative law.

A constructivist conception of legal interpretation

This essay explores a number of issues central to a value-based yet positivist conception of law and legal interpretation. In particular, after some reflections on whether and in what sense a theory of law can be considered axiologically and/or methodologically superior, some classic issues in the theory of legal interpretation are discussed: the distinctions of noetic versus dianoetic interpretation, interpretatio legis versus iuris, and simple versus difficult cases. The analysis then focuses on the claim to correctness inherent in legal reasoning, on its pragmatic connotations, on its controversial relations to the thesis of the so-called separation of law and morality, and to ethical conformism. I argue that the conception of legal interpretation proposed by Isabel Lifante is instead a non-neutral conception of law that contributes to the reinforcement of a Dionysian and Herculean legal practice.

OBJECTIVE INTENTIONALISM AND DISAGREEMENT

AbstractIntentionalist theories of legal interpretation are often divided between objectivist and subjectivist variants. The former take an interpretation to be correct depending on what the reasonable/rational lawmaker intended or what the reasonable/rational audience thinks they intended. The latter take an interpretation to be correct where the interpretation is what the speaker actually intended. This paper argues that objectivism faces serious problems as it cannot deal with disagreement: reasonable and rational persons can often disagree as to what the interpretation of a text should be. It also defends subjectivism against criticisms by objectivists.

Об эволютивном толковании в российском праве

Introduction: the paper discusses the analysis of evolutive interpretation as a special phenomenon in the theory of legal interpretation. There is no this phenomenon among the traditional ways and types of interpretation in domestic law. First, this concept originated in the depths of the sociological legal understanding, which requires the judge to make decisions that meet legal justice and public expectations. Secondly, from these positions, any product that the court “produces” within the framework of the sociological approach to law is judicial law-making. The question of its terminological designation is related to the peculiarities of the implementation of approaches to legal understanding in the practical activities of the court. Third, the term “evolutive” interpretation, which has developed in the activities of the supranational judicial institutions of the integration associations, has historically proved to be euphonious, convenient and suitable for practical use. The purpose of the research is to formulate the methodological foundations of the application and the characteristic features of the evolutive interpretation. The objectives of the research are to reveal the features of the historical genesis, the essential features of evolutive interpretation from the point of view of judicial and scientific doctrine, to show that this ambiguous concept is still the subject of scientific discussion. Methods: the paper uses the philosophical and general scientific principles; the system, genetic and activity approaches; the formal-legal, system and cultural-historical methods. Results: when discussing the possibility of extrapolating the foreign term “evolutive” interpretation into the domestic legal system, it is necessary to observe the continuity of the development of the domestic legal science and the national legal traditions. It is necessary to proceed from the achieved national experience of technical and legal support and terminologization of law-making and law-enforcement processes.

¿La justicia de la ‘mano muerta del pasado’? Sobre la interpretación dinámica y el principio de legalidad penal

El problema de la ‘mano muerta del pasado’ refiere a la cuestión que se plantea en teoría de la interpretación acerca del grado de fidelidad que se le debe a quienes redactaron y aprobaron una disposición jurídica. Esta tesis suele ser discutida intensamente por quienes defienden una interpretación dinámica de las normas y disposiciones que reconocen derechos fundamentales. Sin embargo, esto introduce un reto complicado al momento de interpretar el alcance del principio de legalidad penal, porque de la pretensión de asegurar la eficacia de las normas penales no podría derivarse alguna clase de aplicación analógica de las disposiciones jurídicas. Por ende, cabría preguntarse, ¿es la interpretación dinámica irreconciliable con el principio de legalidad que modela al derecho penal propio de un Estado de Derecho? ¿Es la interpretación dinámica simplemente una excusa para eludir la prohibición de aplicación analógica de normas penales? Este trabajo pretende brindar una respuesta a tales interrogantes.

Analisis Perlakuan Branch Profit Tax atas Bentuk Usaha Tetap Perusahaan Pelayaran Luar Negeri

This study aims to analyze the interpretation of Branch Profit Tax (BPT) according to Directorate General of Taxes (DJP) and permanent establishment (PE) of shipping company, as well as to provide input to settle this differences in interpretation by making confirmation letter or changing the regulation. The PE studied is the Singapore PE because there were differences in interpretation of the Minister of Finance Decree (KMK) number 417/KMK.04/1996 regarding BPT between the PE and DJP. This study uses The Theory of Legal Interpretation and the concept of legal interpretation. The research approach used is qualitative with case study. Data collection techniques used are interviews and documentation. The analysis technique uses descriptive, content, and thematic analysis techniques. The results show that BUT X used a systematic or logical interpretation and interpreted the income tax rate of 2.64% in KMK number 417/KMK.04/1996 includes BPT, while DGP used grammatical interpretation and interpreted the income tax rate of 2.64% in the KMK does not include BPT. The input given is to change the KMK number 417/KMK.04/1996 so that there are no differences in interpretation in the future and the KMK can be used for the PE of shipping companies from all partner countries.

Critical Jurisprudence of Duncan Kennedy and the Status of the Theory of Legal Interpretation

Critical Jurisprudence of Duncan Kennedy and the Status of the Theory of Legal Interpretation

Jerzy Wróblewski’s Legal Theory and His Influence on Humanist Legal Thought

This paper presents Jerzy Wróblewski’s (1926–1990) theory of law. He was an eminent Polish legal philosopher. His philosophical minimalism, anticognitivism, relativism and moderate reconstructivism constitute the basis for analytical theory of law in Poland. He was developing his theory of law over the span of several dozens of years but the assumptions were formulated already in his first work on legal interpretation published in 1959. His paradigm of legal theory includes several areas: the theory of the legal norm, theory of legal interpretation, theory of the legal system, theory of application of law, theory of law-making and the methodology of legal sciences.

Conceptualising Judicial Application of Law in the Polish Theory of Legal Interpretation

The article presents the issue of the judicial application of the law in contemporary Civil Law jurisdictions. This topic arouses a great deal of controversy, because it is associated with granting courts a wide range of discretionary powers, including lawmaking. In the theoretical-legal literature this issue is often dealt with by juxtaposing different ideologies on the judicial application of law: bound, free or legal and rational. This division was introduced and developed by Jerzy Wróblewski, whose concept of the judicial application of law is presented and critically analyzed in the present article, with particular attention paid to the principle of the separation of powers. In recent Polish theoretical-legal literature, discussion on this issue has tended to focus less on whether the courts in our legal system possess lawmaking competence, and more on whether they should be allowed such competence. This is due to the fact that a view now prevails in the literature which holds that, in certain cases, there is a need for creative interpretation of the law, as this can remedy the poor quality of the law enacted by the legislator.

Object and intention under Article 101 TFEU: Lessons from Australia, New Zealand and analytical jurisprudence

What does it mean for an agreement to have an anticompetitive ‘object’ under Article 101(1) of the Treaty on the Functioning of the European Union? Can the European Commission support an ‘object’ case by reference to the agreement parties’ subjective intention, and if so, how? What exactly is the relationship between an agreement’s object and the parties’ subjective intention under competition law? This article is the first to bring insights from Australian and New Zealand cases, as well as analytical jurisprudence, to bear on these underexplored yet important questions affecting the European Union and common law jurisdictions around the world. Using Ronald Dworkin’s theory of legal interpretation as the analytical basis, this article argues for a ‘mixed’ conception of the ‘object’ concept which enables an anticompetitive object to be proven either objectively or subjectively. Anticompetitive subjective intention accordingly provides an independent, alternative basis for competition law liability for agreements; the lack of such intention, meanwhile, does not help exculpate parties who are liable based on their objective purpose to restrict competition. This article also argues that voluntariness and evidentiary limits ought to be imposed on the use of anticompetitive subjective intention in the ‘object’ analysis of agreements.

The Derivational Theory of Legal Interpretation in Polish Legal Theory

The article presents so-called “derivational” theory of legal interpretation and analyzes its basic assumptions. The derivational theory of legal interpretation is still little known outside of Poland (in contrast to the clarificative theory which was popularized in many English-language publications by Jerzy Wróblewski). The article is divided into two parts. The first part is presenting the normative model of legal interpretation according to the derivational theory. In the second part, the basic assumptions and features of the theory are analysed in context of some other approaches to legal interpretation. The author argues that there are two levels (or aspects) of the derivational theory: local and universal. The local level of theory is related to the fact that it was designed for Polish legal system and legal culture. However, beyond its local features, the derivational theory is presenting strong theoretical framework and some significant universal ideas about legal interpretation. This creates universal level that can be called the “hard core” of the theory. The author characterizes the elements of this hard core, and in particular the most important element: the idea that the legal interpretation consists in the reconstruction of legal norms from legal provisions.

Merkl’s contribution to Kelsen’s theory of legal interpretation

This paper analyzes Adolf Julius Merkl’s contributions to Hans Kelsen’s theory of legal interpretation. Initially the possible extension of the influence of Kelsen’s conception of legal science as a descriptive discipline on Merkl’s theory of legal interpretation is discussed. The many common aspects between Merkl’s and Kelsen’s conceptions of legal interpretation are identified and presented and after that the dissonances and differences between these conceptions are indicated. It is highlighted that in Merkl’s theory of interpretation there is a distinction to be found, between the grammatical-logical interpretation and the literal legal interpretation. Based on the presentation of these aspects and on the indication of Merkl’s texts on many specific topics it is argued that Kelsen’s theory of legal interpretation incorporated many of Merkl’s ideas on the matter.

Is The Conditionally Constitutional Doctrine Constitutional?

Under the Conditionally Constitutional Doctrine, the Indonesian Constitutional Court may declare that a provision of a statute is constitutional if it is read in a way described by the Constitutional Court. In practice, this doctrine allows the Constitutional Court to create new legal norms that might not be covered or even considered in the reviewed statute. The main question is: does the Constitutional Court have any legitimate reasons to use such doctrine? This is especially crucial because the Indonesian House of Representatives once banned the doctrine through amendment to Law No. 24 of 2003 on Constitutional Court in 2011 and shortly thereafter, the Constitutional Court declared that the amendment is unconstitutional. In this article, I will discuss the validity of the Conditionally Constitutional Doctrine through the lens of various theories of legal interpretation, and further conclude that given the nature of judicial review process, attempting to answer the above question from the perspective of traditional legal interpretation theories would not be fruitful. Instead, I would recommend using a pragmatic approach in dealing with the existence of the doctrine and offer certain aspects that can be further pursued by Indonesian legal researchers in order to improve the use of such doctrine.

Teoría y metateoría de la interpretación jurídica

Este artículo da cuenta, apoyados en la teoría general del derecho, de los fundamentos teóricos, conceptuales y epistemológicos de la interpretación jurídica. Se trata de proponer un marco de referencia (conceptual, teórica y doctrinal) que permita a los investigadores del derecho abordar los diversos problemas teórico y práctico que suscitan la interpretación jurídica. El lector encontrará un completo análisis de las diferentes perspectivas que desde la teoría general del derecho se proponen hoy sobre los conceptos, las clasificaciones y las teorías de la interpretación jurídica.

Cognitive theory of metaphor and Jerzy Wróblewski’s concept of legal interpretation

Jerzy Wróblewski is one of the most prominent and influential legal theorists in Poland. His theory of legal interpretation containing a division into linguistic, systemic and functional dimension is highly regarded by Polish legal community. However, when formulating the theory Wróblewski was aware that his theory lacks some elements. In his work he points out that despite three dimensions the result of the interpretation is still unpredictable. For instance, interpreter’s personality might be additional factor influencing legal interpretation process. In this context, Wróblewski compares the lawmaker to a composer and a subject making legal interpretation to a musician performing a piece of music. Wróblewski emphasizes the importance of such factors. However, an interpreter should disregard additional factors in the process of legal interpretation.
 At the time, when Wróblewski formulated his theory, the cognitive science was not developed yet. Nowadays, Lakoff Johnson’s idea of conceptual metaphors is widely known and might be one of the missing elements Wróblewski had in mind. 
 This paper will examine such possibility and its consequences. Firstly Wróblewski’s theory of legal interpretation will be presented. Next, I will move to a brief description of Lakoff-Johnson theory. Then, it will be discussed if such approach is possible in terms of Wróblewski’s theory. Finally, the necessary modification of legal interpretation theory will be analyzed. In this part, the key question is whether the metaphorical aspect is a new dimenson of legal interpretation.

Bentham on the Interpretation of Laws

ABSTRACTA widely accepted view is that, for Bentham, legal interpretation was a mechanical or technical matter. This paper reconstructs Bentham’s complex theory of legal interpretation and challenges the above view. It demonstrates that Bentham’s theory of legal interpretation consists of three major theses. First, when there are different interpretations of a law, the authoritative interpreter ought to be the sovereign legislature. Second, strict interpretation attributes to the legislature the will it actually has when making the law. The strict interpretation of a law ought to take the text of the law itself as the standard, and then be guided by its purpose. Third, liberal interpretation attributes to the legislature a will that it would have had if it had been aware of the case before the court, but which it in fact failed to have through inadvertency. Liberal interpretation is a necessary evil, and must be checked: liberal interpretation ought to be made according to the pattern and materials of the old laws, and be subject to the authority of the sovereign legislature.

Ambiguidade e vagueza na interpretação jurídica

Vagueness and ambiguity are key problems in theories of legal interpretation. The ar­ticle first delimits vagueness and ambiguity and sets it into relation to related phenom­ena like the generality of legal expressions (i). Vagueness proves to be a multifaceted phenomenon which can be systematised along three distinctions: vagueness of individu­ation and classification, degree and combinatory vagueness, and semantic and pragmatic vagueness. For law pragmatic vagueness seems of specific import (ii). As for the origins and accounts of vagueness the different approaches are sorted into logic, ontic, epis­temic and semantic accounts with epistemic and semantic accounts showing the closest relations to legal theories of interpretation (iii). The last section argues that vagueness is not a threat to legal interpretation and rule of law values properly understood. It is cautious, though, with regard to some suggested values of vagueness. However, it sees a value of vagueness in reducing decision costs, which cannot be completely accommo­dated by other semantic features of vague concepts like generality (iv). Keywords : philosophy of law, legal interpretation, ambiguity, vagueness.

The grasping hand: Kelo v. City of New London and the limits of eminent domain

On June 23, 2005, the Supreme Court ruled that the city of New London, Connecticut, could condemn fifteen residential properties in the Fort Trumbull area and transfer them to a new private owner. The of eminent domain to take private property for works is generally considered a permissible public use under the Fifth Amendment. In New London, however, the land was condemned to promote private development. Ilya Somin argues that Kelo represents a serious - and dangerous-error. Not only are economic development and closely related blight condemnations unconstitutional under most theories of legal interpretation, they also tend to victimize the poor and the politically weak, and to destroy more economic value than they create. Kelo exemplifies these patterns: the neighbors who chose to fight their evictions had little political power, while the influential Pfizer Corporation played an important role in persuading officials to proceed with the project. In the end, the poorly conceived development plan failed: the condemned land lies empty to this day. A notably unpopular verdict, Kelo triggered an unprecedented political backlash, with forty-five states passing new laws intended to limit the of eminent domain. But many of the new state laws turned out to impose few or no genuine constraints. The Kelo backlash led to significant progress, but not nearly as much as it would first appear. Despite its outcome, the closely divided ruling in Kelo shattered what many believed to be a consensus that virtually any condemnation qualifies as a use. With controversy over this issue sure to continue, The Grasping Hand offers an analysis of the case alongside a history of the meaning of and the of eminent domain and an evaluation of options for reform.

What the Epistemic Account of Vagueness Means for Legal Interpretation

This paper explores what the epistemic account of vagueness (“epistemicism”) means for theories of legal interpretation. The thesis of epistemicism is that vague statements are true or false even though it is impossible to know which. I argue that if epistemicism is accepted within the domain of the law, then the following three conditions must be satisfied: (1) Interpretative reasoning within the law must adhere to the principle of bivalence and the law of excluded middle, (2) interpretative reasoning within the law must construe vague statements as an epistemic phenomenon, and (3) epistemicism must be expanded to include normative considerations in order to account for legal theories that are consistent with the first two conditions. The first two conditions are internal to a particular theory of legal interpretation, while the third condition is external to a particular theory of legal interpretation. My conclusion shows that there are legal theories that are internally consistent with the fundamental features of epistemicism. However, within the domain of law—and specifically in the case of legal theories that are internally consistent with epistemicism—I show that vagueness cannot be explained simply by our ignorance of the meaning and use of vague expressions. Rather, epistemicism must also account for ignorance of the requisite normative considerations in legal theories with which it is otherwise consistent.