Making the Law Explicit The Normativity of Legal Argumentation

by Klatt, Matthias

• ISBN13: 9781841134918
• ISBN10: 1841134910
• Format: Hardcover
• Copyright: 2008-08-01
• Publisher: Hart Publishing

Summary

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

Author Biography

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

Table of Contents

Introduction	p. 1
The Doctrine of the Limits of the Wording	p. 4
Interpretation and Invention in English Legal Reasoning	p. 7
Towards a Common European Approach	p. 15
The Possibility of the Rule of Law Defended	p. 18
The Sceptical Challenge: Indeterminacy and Vagueness	p. 19
The Rationality and Objectivity of Legal Reasoning	p. 23
At a Glance	p. 27
The Doctrine of the Limits of the Wording	p. 33
The Limits of the Wording in Hermeneutic Legal Theory	p. 33
The Limits of the Wording in Analytic Legal Theory	p. 44
The Deconstructivistic Challenge of the Structuring Legal Theory	p. 54
The Results of the First Chapter	p. 64
Normativity and Objectivity of Linguistic Meaning	p. 87
Introduction	p. 87
The Normativity of Linguistic Meaning	p. 96
The Objectivity of Linguistic Meaning	p. 181
The Results of the Second Chapter	p. 207
Semantic Normativity in the Law	p. 211
Addressing the Three Central Issues	p. 211
The Theory of the Limits of the Wording	p. 230
The Results of the Third Chapter	p. 274
Bibliography	p. 283
Index	p. 301
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