Objective interpretation as conforming interpretation
- Autores: Lidia Rodak
- Localización: Oñati socio-legal series, ISSN-e 2079-5971, Vol. 1, Nº. 9, 2011 (Ejemplar dedicado a: Autonomy and Heteronomy of the Judiciary in Europe / coord. por Joxerramon Bengoetxea Caballero, Heike Jung), 11 págs.
- Idioma: inglés
- Enlaces
-
Resumen
The practical discourse willingly uses the formula of �objective interpretation�, with no regards to its controversial nature that has been discussed in literature.
The main aim of the article is to investigate what �objective interpretation� could mean and how it could be understood in the practical discourse, focusing on the understanding offered by judicature.
The thesis of the article is that objective interpretation, as identified with textualists� position, is not possible to uphold, and should be rather linked with conforming interpretation. And what this actually implies is that it is not the virtue of certainty and predictability - which are usually associated with objectivity - but coherence that makes the foundation of applicability of objectivity in law.
What could be observed from the analyses, is that both the phenomenon of conforming interpretation and objective interpretation play the role of arguments in the interpretive discourse, arguments that provide justification that interpretation is not arbitrary or subjective. With regards to the important part of the ideology of legal application which is the conviction that decisions should be taken on the basis of law in order to exclude arbitrariness, objective interpretation could be read as a question �what kind of authority �supports� certain interpretation�? that is almost never free of judicial creativity and judicial activism.
One can say that, objective and conforming interpretation are just another arguments used in legal discourse.
