Article/Publication Details

Textualism and Legal Positivism in the Philosophy of Language

(Original title: Textualizmus a právny pozitivizmus z hľadiska filozofie jazyka)
Organon F, 2012, vol. 19, Supplementary Issue 1, pp. 145-162.
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Abstract

This paper addresses the problem which consists in the cases when the court properly makes substantive evaluative judgments in coming to a decision that determines what the law is. Since legal positivism says that one can determine what the law is without making any such judgments, there may seem to be a conflict here. The discussion of legal positivism throws light on contemporary disputes about the doctrine of interpretation known as “textualism.” S. Soames (textualism2) states that the content of a legal text is what the lawmakers say, assert, or stipulate in adopting the text. A. Scalia (textualism1) argues that the content of a legal text is the meaning – sometimes “the ordinary meaning” – of the text. The paper shows that legal positivism is consistent with the second definition of textualism.

Keywords

A. Scalia., easy case, hard case, legal positivism, ordinary meaning, philosophy of language, philosophy of law, S. Soames, textualism

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