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Legal Indeterminacy and Constitutional Interpretation

Author: J.J. Moreso

Publisher: Springer Science & Business Media

Published: 2013-04-17

Total Pages: 292

ISBN-13: 9401591237

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The main purpose of this book is to offer a logical analysis of legal propositions, especially of constitutional propositions. This analysis shows the relationship between truth-conditions of legal propositions and the problem of indeterminacy. Where the law is indeterminate, legal propositions lack truth-values. The background of this approach is the philosophical debate between realism and antirealism. The book deals with the notions of legal norms and legal systems and provides an analysis of the notion of legal indeterminacy and its relation to gaps, contradictions and the vagueness of legal concepts. It shows also that the simple model of a legal system is not sufficient to account for the complexity of legal propositions referring to legal systems of some degree of maturity. Several notions from legal dynamics are presented in order to bring to light the importance of concepts like applicability or hierarchy for the determination of the truth-value of a legal proposition. Thus the primacy of constitution becomes a central idea in the theoretical reconstruction of most contemporary legal systems; a conceptual explanation of this idea is presented and some conclusions from that explanation are drawn. Finally, a particular conception of constitutional interpretation is proposed. Special attention is paid to the relationship between interpretation and legal indeterminacy and, more specifically, to the problem of the discretion enjoyed by the organs entrusted with applying the constitution and also to the several theses that have been discussed controversially in the context of constitutional interpretation, such as the relevance of the intentions for the interpretation of the constitution and for the justification of judicial review.

Book Synopsis Legal Indeterminacy and Constitutional Interpretation by : J.J. Moreso

Download or read book Legal Indeterminacy and Constitutional Interpretation written by J.J. Moreso and published by Springer Science & Business Media. This book was released on 2013-04-17 with total page 292 pages. Available in PDF, EPUB and Kindle. Book excerpt: The main purpose of this book is to offer a logical analysis of legal propositions, especially of constitutional propositions. This analysis shows the relationship between truth-conditions of legal propositions and the problem of indeterminacy. Where the law is indeterminate, legal propositions lack truth-values. The background of this approach is the philosophical debate between realism and antirealism. The book deals with the notions of legal norms and legal systems and provides an analysis of the notion of legal indeterminacy and its relation to gaps, contradictions and the vagueness of legal concepts. It shows also that the simple model of a legal system is not sufficient to account for the complexity of legal propositions referring to legal systems of some degree of maturity. Several notions from legal dynamics are presented in order to bring to light the importance of concepts like applicability or hierarchy for the determination of the truth-value of a legal proposition. Thus the primacy of constitution becomes a central idea in the theoretical reconstruction of most contemporary legal systems; a conceptual explanation of this idea is presented and some conclusions from that explanation are drawn. Finally, a particular conception of constitutional interpretation is proposed. Special attention is paid to the relationship between interpretation and legal indeterminacy and, more specifically, to the problem of the discretion enjoyed by the organs entrusted with applying the constitution and also to the several theses that have been discussed controversially in the context of constitutional interpretation, such as the relevance of the intentions for the interpretation of the constitution and for the justification of judicial review.

Contemporary Perspectives On Constitutional Interpretation

Author: Susan J Brison

Publisher: Routledge

Published: 2018-03-08

Total Pages: 386

ISBN-13: 042998099X

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Current controversies over abortion, affirmative action, school prayer, hate speech, and other issues have sparked considerable public debate about how the U.S. Constitution should be interpreted. Such controversies, along with the changing composition of an often deeply divided Supreme Court, have led to a resurgence of interest in theories of constitutional interpretation. This anthology, edited by Susan J. Brison and Walter Sinnott-Armstrong, presents some of the most exciting and influential contemporary work in this area. Written by ten of the country's most prominent legal scholars, the selections represent a wide variety of interpretive approaches, reflecting different political orientations from the far right to the far left. These theorists have drawn on a variety of other disciplines, including literature, economics, history, philosophy, and politics, and have in turn influenced these fields. The selections were chosen for their accessibility, originality, variety, and importance. Together they provide an excellent introduction to constitutional interpretation as well as a valuable collection for experienced scholars in the field.

Book Synopsis Contemporary Perspectives On Constitutional Interpretation by : Susan J Brison

Download or read book Contemporary Perspectives On Constitutional Interpretation written by Susan J Brison and published by Routledge. This book was released on 2018-03-08 with total page 386 pages. Available in PDF, EPUB and Kindle. Book excerpt: Current controversies over abortion, affirmative action, school prayer, hate speech, and other issues have sparked considerable public debate about how the U.S. Constitution should be interpreted. Such controversies, along with the changing composition of an often deeply divided Supreme Court, have led to a resurgence of interest in theories of constitutional interpretation. This anthology, edited by Susan J. Brison and Walter Sinnott-Armstrong, presents some of the most exciting and influential contemporary work in this area. Written by ten of the country's most prominent legal scholars, the selections represent a wide variety of interpretive approaches, reflecting different political orientations from the far right to the far left. These theorists have drawn on a variety of other disciplines, including literature, economics, history, philosophy, and politics, and have in turn influenced these fields. The selections were chosen for their accessibility, originality, variety, and importance. Together they provide an excellent introduction to constitutional interpretation as well as a valuable collection for experienced scholars in the field.

Constitutional Interpretation

Author: Sotirios A. Barber

Publisher: OUP USA

Published: 2007-06-07

Total Pages: 218

ISBN-13: 0195328582

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The presuppositions of constitutional interpretation -- The principal questions of constitutional interpretation -- The principal features of the American constitutional order : the positive constitutionalism of The federalist -- Approaches to constitutional interpretation -- Textualism and consensualism -- Narrow originalism/intentionalism -- Broad originalism -- Structuralism -- Doctrinalism and minimalism -- The philosophic approach -- Pragmatism -- Epilogue: a fusion of approaches to constitutional interpretation.

Book Synopsis Constitutional Interpretation by : Sotirios A. Barber

Download or read book Constitutional Interpretation written by Sotirios A. Barber and published by OUP USA. This book was released on 2007-06-07 with total page 218 pages. Available in PDF, EPUB and Kindle. Book excerpt: The presuppositions of constitutional interpretation -- The principal questions of constitutional interpretation -- The principal features of the American constitutional order : the positive constitutionalism of The federalist -- Approaches to constitutional interpretation -- Textualism and consensualism -- Narrow originalism/intentionalism -- Broad originalism -- Structuralism -- Doctrinalism and minimalism -- The philosophic approach -- Pragmatism -- Epilogue: a fusion of approaches to constitutional interpretation.

Words That Bind

Author: John Arthur

Publisher: Routledge

Published: 2018-02-12

Total Pages: 354

ISBN-13: 0429982585

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Words That Bind presents a careful and nuanced treatment of constitutional interpretation and judicial review. By bringing constitutional theory and contemporary political philosophy to bear on each other, John Arthur illuminates these topics as no other recent author has.

Book Synopsis Words That Bind by : John Arthur

Download or read book Words That Bind written by John Arthur and published by Routledge. This book was released on 2018-02-12 with total page 354 pages. Available in PDF, EPUB and Kindle. Book excerpt: Words That Bind presents a careful and nuanced treatment of constitutional interpretation and judicial review. By bringing constitutional theory and contemporary political philosophy to bear on each other, John Arthur illuminates these topics as no other recent author has.

Interpreting the Constitution

Author: Kent Greenawalt

Publisher: Oxford University Press

Published: 2015-11-04

Total Pages: 512

ISBN-13: 0190606479

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This third volume about legal interpretation focuses on the interpretation of a constitution, most specifically that of the United States of America. In what may be unique, it combines a generalized account of various claims and possibilities with an examination of major domains of American constitutional law. This demonstrates convincingly that the book's major themes not only can be supported by individual examples, but are undeniably in accord with the continuing practice of the United States Supreme Court over time, and cannot be dismissed as misguided. The book's central thesis is that strategies of constitutional interpretation cannot be simple, that judges must take account of multiple factors not systematically reducible to any clear ordering. For any constitution that lasts over centuries and is hard to amend, original understanding cannot be completely determinative. To discern what that is, both how informed readers grasped a provision and what were the enactors' aims matter. Indeed, distinguishing these is usually extremely difficult, and often neither is really discernible. As time passes what modern citizens understand becomes important, diminishing the significance of original understanding. Simple versions of textualist originalism neither reflect what has taken place nor is really supportable. The focus on specific provisions shows, among other things, the obstacles to discerning original understanding, and why the original sense of proper interpretation should itself carry importance. For applying the Bill of Rights to states, conceptions conceived when the Fourteenth Amendment was adopted should take priority over those in 1791. But practically, for courts, to interpret provisions differently for the federal and state governments would be highly unwise. The scope of various provisions, such as those regarding free speech and cruel and unusual punishment, have expanded hugely since both 1791 and 1865. And questions such as how much deference judges should accord the political branches depend greatly on what provisions and issues are involved. Even with respect to single provisions, such as the Free Speech Clause, interpretive approaches have sensibly varied, greatly depending on the more particular subjects involved. How much deference judges should accord political actors also depends critically on the kind of issue involved.

Book Synopsis Interpreting the Constitution by : Kent Greenawalt

Download or read book Interpreting the Constitution written by Kent Greenawalt and published by Oxford University Press. This book was released on 2015-11-04 with total page 512 pages. Available in PDF, EPUB and Kindle. Book excerpt: This third volume about legal interpretation focuses on the interpretation of a constitution, most specifically that of the United States of America. In what may be unique, it combines a generalized account of various claims and possibilities with an examination of major domains of American constitutional law. This demonstrates convincingly that the book's major themes not only can be supported by individual examples, but are undeniably in accord with the continuing practice of the United States Supreme Court over time, and cannot be dismissed as misguided. The book's central thesis is that strategies of constitutional interpretation cannot be simple, that judges must take account of multiple factors not systematically reducible to any clear ordering. For any constitution that lasts over centuries and is hard to amend, original understanding cannot be completely determinative. To discern what that is, both how informed readers grasped a provision and what were the enactors' aims matter. Indeed, distinguishing these is usually extremely difficult, and often neither is really discernible. As time passes what modern citizens understand becomes important, diminishing the significance of original understanding. Simple versions of textualist originalism neither reflect what has taken place nor is really supportable. The focus on specific provisions shows, among other things, the obstacles to discerning original understanding, and why the original sense of proper interpretation should itself carry importance. For applying the Bill of Rights to states, conceptions conceived when the Fourteenth Amendment was adopted should take priority over those in 1791. But practically, for courts, to interpret provisions differently for the federal and state governments would be highly unwise. The scope of various provisions, such as those regarding free speech and cruel and unusual punishment, have expanded hugely since both 1791 and 1865. And questions such as how much deference judges should accord the political branches depend greatly on what provisions and issues are involved. Even with respect to single provisions, such as the Free Speech Clause, interpretive approaches have sensibly varied, greatly depending on the more particular subjects involved. How much deference judges should accord political actors also depends critically on the kind of issue involved.

The Constitution in the Courts

Author: Michael J. Perry

Publisher: Oxford University Press, USA

Published: 1994

Total Pages: 352

ISBN-13:

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Wade, striking down restrictive abortion legislation, brought this debate to a fever pitch. The United States Senate hearings on Robert Bork's nomination to the Supreme Court were another of its very public manifestations. Regrettably, the constitutional debate has become highly polemical. Even among professional participants there is much more heat than light.

Book Synopsis The Constitution in the Courts by : Michael J. Perry

Download or read book The Constitution in the Courts written by Michael J. Perry and published by Oxford University Press, USA. This book was released on 1994 with total page 352 pages. Available in PDF, EPUB and Kindle. Book excerpt: Wade, striking down restrictive abortion legislation, brought this debate to a fever pitch. The United States Senate hearings on Robert Bork's nomination to the Supreme Court were another of its very public manifestations. Regrettably, the constitutional debate has become highly polemical. Even among professional participants there is much more heat than light.

Constitutional Originalism

Author: Robert W. Bennett

Publisher: Cornell University Press

Published: 2011-06-06

Total Pages: 223

ISBN-13: 0801461111

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Problems of constitutional interpretation have many faces, but much of the contemporary discussion has focused on what has come to be called "originalism." The core of originalism is the belief that fidelity to the original understanding of the Constitution should constrain contemporary judges. As originalist thinking has evolved, it has become clear that there is a family of originalist theories, some emphasizing the intent of the framers, while others focus on the original public meaning of the constitutional text. This idea has enjoyed a modern resurgence, in good part in reaction to the assumption of more sweeping power by the judiciary, operating in the name of constitutional interpretation. Those arguing for a "living Constitution" that keeps up with a changing world and changing values have resisted originalism. This difference in legal philosophy and jurisprudence has, since the 1970s, spilled over into party politics and the partisan wrangling over court appointments from appellate courts to the Supreme Court. In Constitutional Originalism, Robert W. Bennett and Lawrence B. Solum elucidate the two sides of this debate and mediate between them in order to separate differences that are real from those that are only apparent. In a thorough exploration of the range of contemporary views on originalism, the authors articulate and defend sharply contrasting positions. Solum brings learning from the philosophy of language to his argument in favor of originalism, and Bennett highlights interpretational problems in the dispute-resolution context, describing instances in which a living Constitution is a more feasible and productive position. The book explores those contrasting positions, to be sure, but also uncovers important points of agreement for the interpretational enterprise. This provocative and absorbing book ends with a bibliographic essay that points to landmark works in the field and helps lay readers and students orient themselves within the literature of the debate.

Book Synopsis Constitutional Originalism by : Robert W. Bennett

Download or read book Constitutional Originalism written by Robert W. Bennett and published by Cornell University Press. This book was released on 2011-06-06 with total page 223 pages. Available in PDF, EPUB and Kindle. Book excerpt: Problems of constitutional interpretation have many faces, but much of the contemporary discussion has focused on what has come to be called "originalism." The core of originalism is the belief that fidelity to the original understanding of the Constitution should constrain contemporary judges. As originalist thinking has evolved, it has become clear that there is a family of originalist theories, some emphasizing the intent of the framers, while others focus on the original public meaning of the constitutional text. This idea has enjoyed a modern resurgence, in good part in reaction to the assumption of more sweeping power by the judiciary, operating in the name of constitutional interpretation. Those arguing for a "living Constitution" that keeps up with a changing world and changing values have resisted originalism. This difference in legal philosophy and jurisprudence has, since the 1970s, spilled over into party politics and the partisan wrangling over court appointments from appellate courts to the Supreme Court. In Constitutional Originalism, Robert W. Bennett and Lawrence B. Solum elucidate the two sides of this debate and mediate between them in order to separate differences that are real from those that are only apparent. In a thorough exploration of the range of contemporary views on originalism, the authors articulate and defend sharply contrasting positions. Solum brings learning from the philosophy of language to his argument in favor of originalism, and Bennett highlights interpretational problems in the dispute-resolution context, describing instances in which a living Constitution is a more feasible and productive position. The book explores those contrasting positions, to be sure, but also uncovers important points of agreement for the interpretational enterprise. This provocative and absorbing book ends with a bibliographic essay that points to landmark works in the field and helps lay readers and students orient themselves within the literature of the debate.

Keeping Faith with the Constitution

Author: Goodwin Liu

Publisher: Oxford University Press

Published: 2010-08-05

Total Pages: 272

ISBN-13: 0199750661

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Chief Justice John Marshall argued that a constitution "requires that only its great outlines should be marked [and] its important objects designated." Ours is "intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." In recent years, Marshall's great truths have been challenged by proponents of originalism and strict construction. Such legal thinkers as Supreme Court Justice Antonin Scalia argue that the Constitution must be construed and applied as it was when the Framers wrote it. In Keeping Faith with the Constitution, three legal authorities make the case for Marshall's vision. They describe their approach as "constitutional fidelity"--not to how the Framers would have applied the Constitution, but to the text and principles of the Constitution itself. The original understanding of the text is one source of interpretation, but not the only one; to preserve the meaning and authority of the document, to keep it vital, applications of the Constitution must be shaped by precedent, historical experience, practical consequence, and societal change. The authors range across the history of constitutional interpretation to show how this approach has been the source of our greatest advances, from Brown v. Board of Education to the New Deal, from the Miranda decision to the expansion of women's rights. They delve into the complexities of voting rights, the malapportionment of legislative districts, speech freedoms, civil liberties and the War on Terror, and the evolution of checks and balances. The Constitution's framers could never have imagined DNA, global warming, or even women's equality. Yet these and many more realities shape our lives and outlook. Our Constitution will remain vital into our changing future, the authors write, if judges remain true to this rich tradition of adaptation and fidelity.

Book Synopsis Keeping Faith with the Constitution by : Goodwin Liu

Download or read book Keeping Faith with the Constitution written by Goodwin Liu and published by Oxford University Press. This book was released on 2010-08-05 with total page 272 pages. Available in PDF, EPUB and Kindle. Book excerpt: Chief Justice John Marshall argued that a constitution "requires that only its great outlines should be marked [and] its important objects designated." Ours is "intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." In recent years, Marshall's great truths have been challenged by proponents of originalism and strict construction. Such legal thinkers as Supreme Court Justice Antonin Scalia argue that the Constitution must be construed and applied as it was when the Framers wrote it. In Keeping Faith with the Constitution, three legal authorities make the case for Marshall's vision. They describe their approach as "constitutional fidelity"--not to how the Framers would have applied the Constitution, but to the text and principles of the Constitution itself. The original understanding of the text is one source of interpretation, but not the only one; to preserve the meaning and authority of the document, to keep it vital, applications of the Constitution must be shaped by precedent, historical experience, practical consequence, and societal change. The authors range across the history of constitutional interpretation to show how this approach has been the source of our greatest advances, from Brown v. Board of Education to the New Deal, from the Miranda decision to the expansion of women's rights. They delve into the complexities of voting rights, the malapportionment of legislative districts, speech freedoms, civil liberties and the War on Terror, and the evolution of checks and balances. The Constitution's framers could never have imagined DNA, global warming, or even women's equality. Yet these and many more realities shape our lives and outlook. Our Constitution will remain vital into our changing future, the authors write, if judges remain true to this rich tradition of adaptation and fidelity.

Interpretation, Law and the Construction of Meaning

Author: Anne Wagner

Publisher: Springer Science & Business Media

Published: 2007-05-16

Total Pages: 225

ISBN-13: 1402053207

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The study of legal semiotics emphasizes the contingency and fluidity of legal concepts and stresses the existence of overlapping, competing and coexisting legal discourses. New problems, changing power structures and societal norms and new faces of injustice – all these force reconsideration, reformulation and even replacement of established doctrines. This book focuses on the application of law in a wide variety of contexts, including international politics and diplomatic practice.

Book Synopsis Interpretation, Law and the Construction of Meaning by : Anne Wagner

Download or read book Interpretation, Law and the Construction of Meaning written by Anne Wagner and published by Springer Science & Business Media. This book was released on 2007-05-16 with total page 225 pages. Available in PDF, EPUB and Kindle. Book excerpt: The study of legal semiotics emphasizes the contingency and fluidity of legal concepts and stresses the existence of overlapping, competing and coexisting legal discourses. New problems, changing power structures and societal norms and new faces of injustice – all these force reconsideration, reformulation and even replacement of established doctrines. This book focuses on the application of law in a wide variety of contexts, including international politics and diplomatic practice.