Abstract

GUASTINI, Riccardo. Legal Interpretation and Legal Construction. Isonomía [online]. 2015, n.43, pp.11-48. ISSN 1405-0218.

This article spells out an analytical and realistic theory of legal interpretation. Analytical, since its method is the logical analysis ofjurists' and judges' language. Realistic, since it assumes, first, that law is indeterminate and, second, that judicial interpretation is intrinsically discretionary. In the first part, some fundamental distinctions are introduced, namely: "in abstracto" and "in concreto" interpretation; cognitive, adjudicative, and creative interpretation; interpretation strictly understood and juristic construction. The last mentioned distinction, in particular, takes on a special importance. Interpretation properly understood amounts to ascribing meaning to normative texts, whereas juristic construction mainly consists in formulating new norms, supposedly implicit in the legal system. The second part is devoted to the logical analysis of the arguments most commonly used by jurists to justify their interpretive and constructive operations.

Keywords : interpretation; legal indeterminacy; legal construction; interpretive arguments; legal rules on interpretation.

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