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

Abstract

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

Suggested Citation

Spaak, Torben, Legal Positivism, Anti-Realism, and the Interpretation of Statutes. Available at SSRN: https://ssrn.com/abstract=923619

Torben Spaak (Contact Author)

Stockholm University ( email )

S-106 91 Stockholm
Sweden
46 8 16 45 89 (Phone)
46 8 612 41 09 (Fax)

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