The Interpreter's Attitude Regarding the Principles of Interpretation. Dworkin vs Hart
| Author | Claudia Andritoi, PhD |
| Position | Senior Lecturer. Eftimie Murgu University, Resita |
| Pages | 45-56 |
Page 45
The connection between positive law, the principles that govern it and natural law, together with its principles, intervenes in the connection with the research of the foundation of positive law and its autonomy on the basis of a certain limitation. ThePage 46duality of law was strongly studied by jurists who tried to offer solution in the matter of the distinction between natural law and positive law.
A first aspect to be discussed refers to the foundation of the idea of positive law, as it was exposed and sustained by Kerhuel, idea that is sustained not only on the rejection of any reference to the principles of natural law (Kerhuel, 2007, pp. 292- 300), but also, on the obeying of the freedom of speech right. Thus the author has affirmed the fact that the idea of positive law is not justified by the principles of natural law. We access this point of view, knowing the fact that certain positivist or existentialist currents understand positive law by excluding any references to natural law.
Judicial positivism denies any reference to an ideal in justice or to any source of law that would impose in its positive reality. According to the opinions shared by scholars of Kerhuel's theory and reasoning, there is no other law than the codified one.
To the opposite pole, positive law and natural law represent two law orders, the development of is realized through a reciprocal interaction.
The articulations observed between them result from an essential contribution of the natural law principles to positive law, and reciprocally, the role of positive law in the understanding and accepting of natural law principles in social life. Positive law appeals to the natural law principles in order to attenuate its own deficiencies, in this position not existing in the service of justice, but in the measure of its conformity to natural principles.
These hold an essential role in searching and guaranteeing an ideal in justice, underlining the essential contribution of natural law to positive law, which result from the fact that positive law extracts its lawfulness and if compulsory force from the principles of natural law. When we observe a possible difference between the terms of positive law and those of the natural law, the positive law must be interpreted according to natural law, in the terms of positive law. The readjustment of positive law to natural law is the result of a regulations unity and to the fact that natural law prevails; the limiting to the terms of positive law there is an exigency of formalization.
The interpretation is not only present in different area of activity, but it also structures different domains or it formulates modalities under which they are presented (law or other sociologic sciences) (Eremia, 1998, p. 1).Page 47
It gains through law new coordinates, determined on one side by the legislator and on the other side by the judge's activity, the judicial domain being the one that offers to interpretation special characteristics that allow not only the manifest of reason and of human intelligence, but also the their expression in a determinate social frame (Popa, 1992, p. 173), as professor Nicolae Popa sustains.
A judicial interpretation refers not only to the analysis of judicial area, but also of those that once entered into the reality component, have relevance for positive law (Troper, 2001, p. 72).
According to a general definition, law refers to a just order that consists in a certain equality loomed between reciprocal report of individuals and social group. Certain authors refer to natural law (Gurvitch, 1933) as to „the idea of a necessary regulation of any positive law" (Leonard, 1991, pp. 268-269), idea that approaches the identification of natural law as „an intuitive positive law". This idea is also seen in Kant's writings for who the expression „intuitive positive law" refers to a notion the objective content of which cannot discern an exhaustive and definitive manner, considered to be necessary and prior to the demarche prosecuted. (Kant, 1994, p. 54) The language used by Kant allows the idea of a just order integration, anterior to positive law, which represents in this case an indispensable basis of law, without being transposed into reality in an immediate and complete manner.
The interdependence of the two law orders can not lead to the conclusion according to which what is admitted in a legal manner, it is de facto according to the principles of natural law. If all regulations are presumed to contribute to the realization of common good, it doesn't mean that all these are according to natural law, creating situations when the law tolerates, without sanctioning, contrary situations to natural law. (Jestaz, 1990, p. 528) For example, if an injustice is not qualified as being a crime, the judge cannot punish it, even if it can be punished through natural law.
Positive law extracts its moral force from natural law, the latter one being able to sustain itself, in an independent manner from the existence of civil law and outside any connection to an organized and recognized judicial system. According to the example of all humanist conceptions, natural law aspires to its contour in a shape with roots in positive law. (Aillet, 1993, pp. 51-52)
The legislator has predicted correctly, in a presumptive way, starting from natural law, a certain number of principles or fundamental rights, some with value of constitutional principle, fact which offered them a supreme value in judicial norms hierarchy, in which the state has the role of a values guarantor and for democracyPage 48itself. (Del Vecchio, 1979, p. 92) Building, in a social field, the principles of natural law, positive law attenuates the deficient in the knowledge of natural law, whose meaning, subjected to different interpretations, may be dissolved in a variety of...
To continue reading
Request your trial