Making the Law Explicit

The Normativity of Legal Argumentation
1. Auflage 2008
ISBN: 978-1-84113-491-8
Verlag: Bloomsbury 3PL

Buch, Englisch, 256 Seiten, Format (B × H): 161 mm x 240 mm, Gewicht: 652 g

Reihe: European Academy of Legal Theory Series

Legal argumentation consists in the interpretation of texts. Therefore, it has a natural connection to the philosophy of language. Central issues of this connection, however, lack a clear answer. For instance, how much freedom do judges have in applying the law? How are the literal and the purposive approaches related to one another? How can we distinguish between applying the law and making the law?

This book provides answers by means of a complex and detailed theory of literal meaning. A new legal method is introduced, namely the further development of the law. It is so far unknown in Anglo-American jurisprudence, but it is shown that this new method helps in solving some of the most crucial puzzles in jurisprudence.

At its centre the book addresses legal indeterminism and refutes linguistic-philosophical reasons for indeterminacy. It spells out the normative character of interpretation as emphasized by Raz and, with the help of Robert Brandom's normative pragmatics, it is shown that the relativism of interpretation from a normative perspective does not at all justify scepticism. On the contrary, it supports the claim that legal argumentation can be objective, and maintains that statements on the meaning of a statute can be right or wrong, and take on inter-subjective validity accordingly.

This book breaks new ground in transferring Brandom's philosophy to legal theoretical problems and presents an original and exciting analysis of the semantic argument in legal argumentation. It was the recipient of the European Award for Legal Theory in 2002.

'This book represents, on the one hand, a reception of Robert Brandom's important theory including applications of this theory in the field of legal philosophy and, on the other, an exploration of the limits of an appeal in legal interpretation to the text. The enquiry thereby impinges upon the central juridico-philosophical themes of meaning, objectivity, and normativity. The author's work counts as a significant contribution to analytical jurisprudence and is deserving of a wide readership.' Robert Alexy, Professor for Public Law and Legal Philosophy, Kiel.

'Klatt focuses on a very profound theory of concept formation and uses this theory in a creative way to solve classical problems of legal argumentation.' Aleksander Peczenik

Autoren/Hrsg.

Klatt, Matthias

Fachgebiete

• Rechtswissenschaften Recht, Rechtswissenschaft Allgemein Rechtstheorie, Rechtsmethodik, Rechtsdogmatik, Rechtsprechungslehre
• Rechtswissenschaften Recht, Rechtswissenschaft Allgemein Rechtsphilosophie, Rechtsethik
• Geisteswissenschaften Philosophie Rechtsphilosophie, Rechtsethik

Inhaltsverzeichnis

Introduction 1
I. The Doctrine of the Limits of the Wording

II. Interpretation and Invention in English Legal Reasoning

III. Towards a Common European Approach

IV. The Possibility of the Rule of Law Defended

V. The Sceptical Challenge: Indeterminacy and Vagueness

VI. The Rationality and Objectivity of Legal Reasoning

VII. At a Glance

Chapter 1: The Doctrine of the Limits of the Wording

I. The Limits of the Wording in Hermeneutic Legal Theory

II. The Limits of the Wording in Analytic Legal Theory

III. The Deconstructivistic Challenge of the Structuring Legal Theory

IV. The Results of the First Chapter

Chapter 2: Normativity and Objectivity of Linguistic Meaning

I. Introduction

II. The Normativity of Linguistic Meaning

III. The Objectivity of Linguistic Meaning

IV. The Results of the Second Chapter

Chapter 3: Semantic Normativity in the Law

I. Addressing the Three Central Issues

II. The Theory of the Limits of the Wording

III. The Results of the Third Chapter

Über Autor(innen)

Matthias Klatt is Juliana Cuyler Matthews Junior Research Fellow in Law at New College, Oxford University.