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Article

English, Spanish, Portuguese

ID: <

oai:doaj.org/article:f1310e3f40ce422e88607e74135a6ca6

>

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From the interpretation of the law to the arguments put forward by the Constitution: reality, theories and assessment

Abstract

DOI: 10.5294/dika.2012.21.1.6 This article makes a comparative study of the theory of legal interpretation specific to legal positivism, the dominant legal theory of the political form of the rule of law, and the view of the interpretative theory of the Constitutional State. The central features of the positivist view of interpretation are: the understanding of legal science as theoretical and descriptive science, the absence of assessments and the attachment to the letter of the law and legal certainty as exclusive criteria that should guide the work of the interpreter. In constitutionalism, there is a revalorisation of legal interpretation as a task of practical reason, implying the presence of substantial values in the law, and obliging the interpreter to use argumentation techniques that go beyond the mechanical application of the law. All these views are ultimately compared with the interpretative theory of classic legal realism, which is presented here as the best way to understand the work of the interpreter, and in whose thesis many of the contemporary theories of interpretation can be assumed. DOI: 10.5294/dika.2012.21.1.6

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