Chapter

The Separation Thesis and the Limits of Interpretation

Andrei Marmor

in Positive Law and Objective Values

Published in print May 2001 | ISBN: 9780198268970
Published online January 2010 | e-ISBN: 9780191713187 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198268970.003.0004
The Separation Thesis and the Limits of Interpretation

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This chapter analyses Ronald Dworkin's interpretative challenge. One of Dworkin's main arguments against legal positivism is based on the following two premises: first, determining what the law is in each particular instance results from an interpretative reasoning; secondly, that interpretation necessarily involves evaluative considerations. Therefore, the argument concludes, it follows that determining what the law is always depends on evaluative considerations. The chapter focuses on the first premise, examining three possible arguments in support of it: a semantic argument, an epistemic argument, and Dworkin's theory of legal principles. The chapter argues that none of these arguments succeeds. Neither semantic nor epistemic considerations can support the idea that determining what the law is always follows from an interpretation. It is also argued that there are no legal principles of the kind envisaged by Dworkin.

Keywords: Ronald Dworkin; legal positivism; interpretation; legal principles; separation thesis; semantic argument; epistemic argument

Chapter.  9181 words. 

Subjects: Jurisprudence and Philosophy of Law

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