Modern Legal Interpretation: Legalism or Beyond

Marko Novak · Vojko Strahovnik

Jan 2019 · Cambridge Scholars Publishing

Ebook

203

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About this ebook

Legalism or legal formalism usually depicts judges as resolving cases by allegedly merely applying pre-existing legal rules. They do not seem to legislate, exercise discretion, balance or pursue policies, and they definitely do not look outside of conventional legal texts for guidance in deciding new cases. For them, the law is an autonomous domain of knowledge and technique. What they follow are the maxims of clarity, determinacy, and coherence of law. This perception of law and adjudication is sometimes designated as “an orthodox lawyering”. However, at least in certain cases, it is very difficult to say that legalism is not an inappropriate theory or a method of legal interpretation.

Different theories have attested that legal interpretation is much more than just legalism, which appears to be far too naïve. In the framework of modern legal interpretation, the following questions can be raised. Is it possible to integrate legalism in a coherent theory of legal interpretation? Is legalism as a distinctive theory of legal interpretation still a feasible theory of interpretation? How can such a formalist approach withstand a critique from Dworkinian moral interpretivism or accusations of being a myth, masking political preferences from legal realists? These and many other issues about legal interpretation are discussed in this book by prominent legal philosophers and legal theorists.

About the author

Marko Novak, PhD, is an Associate Professor of Legal Theory and Constitutional Law and the Dean of the European Faculty of Law, Slovenia. He is currently the President of the Council for the Judiciary of the Republic of Slovenia, and a member of the Executive Board of the European Network of Councils for the Judiciary.

Vojko Strahovnik, PhD, is a Senior Research Associate in Philosophy at the University of Ljubljana, Slovenia. He is also an Assistant Professor at the Faculty for Government and European Studies and the European Faculty of Law, Slovenia.

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