Legal Positivism, Anti-Realism, and the Interpretation of Statutes
LOGIC, LAW, MORALITY. THIRTEEN ESSAYS IN PRACTICAL PHILOSOPHY IN HONOUR OF LENNART AQVIST, pp. 127-145, Krister Segerberg & Rysiek Sliwinski, eds., Uppsala University, 2003
19 Pages Posted: 11 Aug 2006
The so-called realist/anti-realist debate cuts through a number of philosophical disciplines, such as the philosophy of science, the philosophy of mathematics, and meta-ethics. In this article, I argue that this debate pertains to jurisprudential matters as well. More specifically, I argue (i) that our position in the semantic realism/anti-realism debate will influence our understanding of the interpretive arguments - especially the textual argument - and (what I shall refer to as) the modalities of decision, such as analogy and argumentum e contrario. I also argue (ii) that our current understanding of these concepts is premised on semantic anti-realism, and that therefore adoption of some sort of semantic realism would entail radical changes in our understanding of these concepts. Finally, I argue (iii) that legal positivists who are also empiricists have reason to accept such antirealism.
Keywords: Legal positivism, anti-realism, statutory interpretation
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