Ответ Отто Пферсманну
The author of this paper responds to the critique of the realist theory of interpretation made by O. Pfersmann. M. Troper insists that critique of his theory is based on the incorrect philosophical generalizations. The realist theory considers that it is impossible to find an objective meaning of legal texts also through judicial process. Thus, claiming at the same time that judicial decisions are the main source of knowledge about law and that these decisions do not have objective meaning does not lead to any internal contradictions in this theory.
In legal interpretation, where does meaning come from? Law is made from language, yet law, unlike other language-related disciplines, has not so far experienced its “pragmatic turn” towards inference and the construction of meaning. This book investigates to what extent a pragmatically-based view of linguistic and legal interpretation can lead to new theoretical views for law and, in addition, to practical consequences in legal decision-making. With its traditional emphasis on “the letter of the law” and the immutable stability of a text as legal foundation, law has been slow to take the pragmatic perspective: namely, the language-user’s experience and activity in making meaning. More accustomed to literal than to pragmatic notions of meaning, that is, “in” the text rather than constructed by speakers and hearers … the disciplines of law may be culturally resistant to the pragmatic turn. By bringing together the different but complementary perspectives of pragmaticians and lawyers, this book addresses the issue of to what extent legal meaning can be productively analysed as deriving from resources beyond the text, … beyond the letter of the law. This collection re-visits the feasibility of the notion of literal meaning for legal interpretation and, at the same time, the feasibility of pragmatic meaning for law. Can explications of pragmatic meaning support court actions in the same way concepts of literal meaning have traditionally supported statutory interpretations and court judgements? What are the consequences of a user-based view of language for the law, in both its practices of interpretation and its definition of itself as a field? Readers will find in this collection means of approaching such questions, and promising routes for inquiry into the genre- and field-specific characteristics of inference in law. In many respects, the problem of literal vs. pragmatic meaning, confined to the text vs. reaching beyond it, will appear to parallel the dichotomy in law between textualism and intentionalism. There are indeed illuminating connections between the pair of linguistic terms and the more publicly controversial legal ones. But the parallel is not exact, and the linguistic dichotomy is in any case anterior to the legal one. Even as linguistic-pragmatic investigation may serve legal domains, the legal questions themselves point back to central conditions of all linguistic meaning.
The article analyses interpretation of the articles of the European Convention on Human rights and Fundamental Freedoms, which guarantee the right to private and family life, to marry, to access court and to be free from arbitrary detention in the context of formal equality and non-discrimination for the persons with mental disabilities. The author argues that the judges of international courts interpret human rights language not literally, but broadly, pragmatically – involving comparative legal studies, judicial practice of different states, fact analysis for the better protection of fundamental rights of the applicants, thus employing compensatory possibilities of law for the equalization of the possibilities to access the rights for the persons, belonging to disadvantages groups.
The book containts articles written by European scholars about the place of socio-economic rights in the modern democracies. The introduction is written by Wiktor Osiatynski, who analyses the confusing concepts of socio-economic rights.
In this article the author examines the problems connected with definition of nature of constitutional interpretation. On the base of the cases from the judicial practice, Michel Troper shows that specificity of constitutional interpretation does not reside in particular character of constitution which is the object of interpretation. According to this French theorist who is leader of the school of French legal realism, the particular trait of constitutional interpretation is due to the fact that this kind of interpretation results in constructing a hierarchy of normative acts in a given legal order. Even if such a hierarchy is described in a constitution, it will nevertheless remain hypothetical and subject to changes through an act of constitutional interpretation. Michel Troper insists that a meaning of a legal text cannot be defined prior to interpretation; therefore this legal text will not have any definitive content before being interpreted. The French theorist concludes that a legal norm is not created by the way of legislation — it is created through authentic interpretation of the legislative acts. As authentic interpretation the author holds such construction of a legal text which brings any legally relevant consequences having binding force in this given legal order, there consequences being immune to overruling by any higher instance. Such interpretation can be exercised both by judicial and non-jurisdictional bodies.
In this article the author resumes the debates about sustainability of the neo-realist theory of legal interpretation. Pfersmann meticulously analyses the new arguments of his adversary, Michel Troper, and criticizes these arguments. Neo-realism recurs to content-analysis of legal texts as of speech acts, which is not possible without semantics, but at the same time it denies using any semantic arguments. Another inconsistency results in that any normative hierarchy in law being rejected by neo-realism, and this amounts to impossibility to identify any legal texts and any legal order. Pfersmann also stresses that normative effects of interpretation are connected not with any factual actions, but with normative structure of a legal order. The author concludes that the neo-realist theory of interpretation meets with failure for lack of a proper object and a coherent method of scientific inquiry.