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Article

Ономастический софизм: изменять, а не познавать (о толковании Конституции)

Пферсманн О.

The author of this article restarts the polemics around the realist theory of interpretation. Examining the thesis of this theory about identity of legal interpretation and jurisdictional decision-making, the author proves that confusion between these two different phenomena is based on incorrect use of the term “interpretation”. In the article are discussed six meanings of this term, at least present in legal interpretation, and each meaning must be used in the appropriate context. Undue confusion between these meanings enables the partisans of the realist theory of interpretation to construct “interpretation” as a notion without clear conceptual limits. This argument is designated by the author as an onomastic sophism, as a rhetoric stratagem based on the idea that a term has the same meaning in different contexts. The author repudiates the thesis forwarded by the realists that it is impossible to cognize meaning of legal texts, and draws on the incoherence of this argumentation which lastly recognizes a possibility to attribute a meaning through a judicial decision. In general, as O. Pfersmann argues, the realist theory of interpretation intends to justify changes in constitution through judicial argumentation without considering the order prescribed by the constitution for changes and amendments.