Naslov
Reinventing Systematic Interpretation: Criteria and Uses of the Tripartition into Public, Private, and Social Law

Autori
Padjen, Ivan

Vrsta, podvrsta i kategorija rada
Poglavlja u knjigama, znanstveni

Knjiga
The Modern Legal Interpretation: Legalism or Beyond

Urednik/ci
Novak, Marko ; Strahovnik, Vojko

Izdavač
Cambridge Scholars Publishing

Grad
London : Delhi

Godina
2018

Raspon stranica
96-115

ISBN
978-1-5275-1164-4

Ključne riječi
systematic interpretation ; systematization of law ; public law ; private law ; social law ; policy oriented jurisprudence

Sažetak
The problem of the paper is indicated by Ruth Wedgwood's appraisal at a conference on international criminal law in 2001: when a German judge has applied his 500 concepts to facts of a criminal case, he is left with the discretion to sentence the defendant from three and a half to five years of imprisonment ; when an American judge has applied all of his 50 concepts, he is left with the discretion between 0 and 20 years of imprisonment. Contrary to the expectations the citation above may have generated, the paper is advocating adoption – but with adaptation - of a distinctly American theory. It is Harold D. Lasswell and Myres S. McDougal's policy oriented or configurative jurisprudence (POJ). It is a higly articulated theory de lege ferenda, which is arguably the best framework available for legislating and administrating social change and adjudicating hard cases. However, POJ is inadequate as a framework for systematic interpretation of law, which is genuinely legal in two senses: unlike other standard canons or methods of interpretation, it relies primarily on legal criteria ; it cannot be substituted for by criteria of another discipline, such as linguistics. The paper is reconstructing a crucial aspect of continental European conceptions of a legal system. It is the tripartition into public, private and social law on the basis of criteria derived from Aristotle’s analysis of justice. The usefulness of the tripartition in systematic interpretation of law is exemplified by the status of associations and the claim that the right to marry is a human right.

Izvorni jezik
Engleski

Znanstvena područja
Pravo, Politologija

POVEZANOST RADA