ТУМАЧЕЊЕ ПРЕМА ПРИРОДИ СТВАРИ – ПРИЛОГ СОЦИОЛОШКОЈ ТЕОРИЈИ ТУМАЧЕЊА ПРАВА
INTERPRETATION BY THE NATURE OF THINGS
Subject(s): Social Theory, Hermeneutics, Philosophy of Law, Sociology of Law
Published by: Правни факултет Универзитета у Београду
Keywords: Interpretation by the nature of things. ‒ Sociological theory of the interpretation of law. ‒ Interpretation of law as a inductive logic operation.
Summary/Abstract: Interpretation by the nature of things most of the authors in the field of legal hermeneutics view in the manner of Bidlinsky, Larense and Canaris. This approach is largely paradoxical because in explaining the examples from legal practice it fails to sustain and survive the idealistic understanding of the category of “things” that come from the philosophy of law. To paraphrase Horacio, who says that “we can impose on nature by force, it always returns” (expellas naturam furca tamen usque recurret), we will primarily state the following (1) any discussion on the interpretation must by the nature of things start or finally always ends up with the realistic definition of the category of “things” within the formula of the “nature of things”. This further means that (2) only when the essence of the “things” is examined through the lens of facts (realist, naturalistic) the formula “about the nature of things” gains a dimension of a relevant hermeneutical instrument. Also, (3) realistic understanding of “things” – that arises, not so much by the power of a theoretical paradigm as much as the by the needs of legal practice – make the interpretation by the nature of things look as a sociological analysis where it manifests itself as the fulfillment of needing from a legal norm, or filling legal gaps, starting from typical, ordinary or usual state of social relations expressed through the interpretation of the facts of the case. Accordingly, also on the level of discussion on the interpretation of the nature of things (4) the sociological theory of interpretation of the law confirmes itself whereby it views the procedure of interpretation of law as primarily an inductive logic operation, when favoring small premise of the juristic conclusion (working on the facts) and where the explanation of the facts of the case (which is inserted between the establishment of facts and qualifications of facts) emerges as a key criterion of interpretation of legal norms.
- Issue Year: 64/2016
- Issue No: 2
- Page Range: 30-48
- Page Count: 19
- Language: Serbian