Relevant Legal Provisions

28 Νοεμβρίου 2022 Χωρίς κατηγορία

As already mentioned, the relevant nature of the objective appears to be legal or even political, certainly not semantic or communicative (see Eskridge 1993, 1744-45; 1994, 29; Hart and Sacks, 1994, p. 148; Barak, 2005; Dickerson, 1975, pp. 88-90; Manning, 2006; Scalia and Garner, 2012, pp. 35-39). The famous purposivist case of the Church of the Holy Trinity illustrates this point. The case concerned the question whether a law making it illegal for an alien to immigrate under a pre-existing contract for the performance of “works or services of any kind” applied to an attempt by a church to employ an English minister. The Supreme Court relied on evidence outside the text of the law to determine that the purpose of the law was limited to regulating the immigration of workers, although it recognized that the meaning of the words included the work of a clergyman. Article 2 emphasized that what matters is which method of legal interpretation is correct – and what are the reasons or arguments in favour of a method – depends on the interpretation of the law sought. The accuracy of a method of legal interpretation depends first in approximation on the reliability of the reliability of the interpretation of the law. For example, if legal interpretation seeks the best resolution of disputes, then a method of legal interpretation is only correct if it leads to the best dispute resolution. [32] The main factors that promote the understanding of dispute resolution of legal interpretation (as opposed to one from which legal interpretation seeks input from a provision) are the open process, which is characteristic of many legal interpretations, and the ad hoc or eclectic approach to evaluating methods of legal interpretation, which is used in many legal interpretation writings.

Lawyers and judges generally consider a variety of factors when interpreting the law without having a well-structured idea of the relevance of these different factors and why they are relevant. This question is more fundamental than the more well-known questions about the method of interpretation, because the correct method (and the reasons or arguments that matter for a method) depends on the legal interpretation sought. In general, how a method is depends on what the method is suitable for. The appropriate method for determining, for example, the linguistic meaning of a text is likely to be very different from the appropriate method for finding the best dispute resolution. Similarly, whether a method is fair or democratic may well be irrelevant if the interpretation of the law seeks linguistic meaning, but very relevant if it is aimed at the best resolution of disputes. Pragmatism is most associated with Justice Richard Posner (Posner, 1998; 2003; 2008). [16] The basic idea is to resolve cases in such a way as to obtain the best results. Constitutional provisions, laws, judicial decisions, etc.

are only relevant to the extent that their observance leads to better results. According to Posner, pragmatism “seeks the best decision taking into account present and future needs, and therefore views maintaining consistency with previous decisions not as an end in itself, but only as a means to achieve the best results in this case” (Posner 1998, 238). What can be said about the assertion that legal interpretation seeks linguistic meaning? It is often taken as a starting point that interpretation is the activity of attribution issues. (e.g., Knapp & Michaels, 1982; 1983; Graglia, 1992; Fisch, 2005; 2008; Michaels, 2009; Alexander, 2013). By definition, according to one version of the argument, the interpretation of an object seeks its meaning – presumably in the strict sense of what that object symbolizes or represents. (If the term “meaning” were understood in a broad sense, the argument could not give rise to any real limitation of legal interpretation.) A related argument is that legal interpretation is an example of linguistic interpretation and that linguistic interpretation seeks linguistic meaning (e.g., Soames, 2009; Alexander, 2011). In their critique of intentionalism, contemporary textualists have emphasized the disorder and opacity of the legislative process and the importance of compromise in that process (see Manning 2001, 71-78; 2003, 2408-19; Easterbrook, 1983, pp. 540-41; 1988, 63–64; 1990, 444–48; 1994, 68; 2010, 916, 922; 2012, xxii; Scalia and Garner, 2012, pp. 392-93).

Individual legislators who originally propose legislation may have a specific legal intent – to enact a particular legal standard. However, compromises must be made to ensure the adoption of legislation. Legislative agreements are often verbal rather than substantive, i.e. they often take the form of adding certain words to legislation without reaching agreement on the net impact of a change in wording.

Greek EL English EN French FR German DE