FUNDAMENTAL CHARACTERISTICS OF JUDICIAL INTERPRETATION Cover Image
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CARACTERISTICI FUNDAMENTALE ALE INTERPRETĂRII JUDICIARE
FUNDAMENTAL CHARACTERISTICS OF JUDICIAL INTERPRETATION

Author(s): Cristina Tomuleţ
Subject(s): Law, Constitution, Jurisprudence, Philosophy of Law, Sociology of Law
Published by: Studia Universitatis Babes-Bolyai
Keywords: judicial interpretation; legal formalism; the free law movement; reason; intuition; natural law; positive law; characteristics of judicial interpretation;

Summary/Abstract: In the present study, I analyse three fundamental characteristics of judicial interpretation with the aim of highlighting its nature. To that end, I discuss interpretation as a rational and intuitive act, as a source of legal argumentation and as an act of volition.Regarding the first characteristic of interpretation, I conclude that judicial interpretation can only be the result of intertwining reason and intuition, as a balanced solution to the extreme positions promoted by legal formalism and the free law movement. At the same time, I consider that the use of intuition in the context of judicial interpretation allows the integration of natural law in positive law systems. Concerning the second characteristic of interpretation, I consider that interpretation gives birth to legal argumentation due to the imprecise character of the legal language and also due to the various interests that may be protected via different interpretations of the same legal norm. Finally, I underline that judicial interpretation inevitably becomes an act of volition in the more controversial cases situated at the border of the intended scope of legal norms.

  • Issue Year: 63/2018
  • Issue No: 4
  • Page Range: 64-111
  • Page Count: 48
  • Language: Romanian