U potrazi za pravim značenjem pravnog pravila
In Search of the True Meaning of Legal Rules

Author(s): Mirjana Nadaždin Defterdarević
Subject(s): Law, Constitution, Jurisprudence
Published by: Правни факултет Универзитета у Источном Сарајеву
Keywords: Legal norm; Interpretation of law; Interpretation methods; Legal arguments; Discursive character of argumentation; New rethoric;
Summary/Abstract: The paper is devoted to the issue of establishing the true meaning of legal norms. Interpretation of law transcends in its complexity the interpretation of all other, however complex, cultural phenomena, rendering the hermeneutic approach, which has been practiced from the very beginning of law, insufficient. The reason for this is extralegal elements, which the hermeneutic approach in interpreting content implies. The escape the control of legality and objectivity, whose respect is, essentially, determined by law. The paradigm of difficulty and complexity of interpreting and understanding the content of a legal message is a legal dispute in which determining the true meaning of a legal norm implies legal syllogism, logical reasoning, and argumentative explanation of the conclusions reached. The resolution of a legal dispute, as the best example of the interpretation of law, testifies the interpretation in law implies the simultaneous application of hermeneutics, argumentation, and rhetoric. This approach was practiced until the modern age when, following the idea of making law, both as a science and as and activity, objective, exact, value-neutral, and certain, it moved away from both hermeneutics and rhetoric. It was a delusional attempt. With its irreplaceable creative charge to the interpretation of law, rhetoric has returned, replacing traditional methods of interpretation with legal arguments, and the theory of legal argumentation has mainly become the theory of legal interpretation. In an effort to better respond to the demands of jurisprudence, legal hermeneutics offered new approaches that emancipated as theories of juristic argumentation.The author raises the issue of the reliability of a legal instrument for determining the true meaning of the legal norm, the manner and the magnitude of changes in the approach to interpretation over time, and the real effects of those applications. In doing so, she explains the necessity of the interpretation procedure, reviewing individual approaches chosen for this purpose without intending to present the procedure of interpretation and understanding of legal content in all its complexity. The paper, in its review , follows different approaches to the interpretation of legal content, from legal hermeneutics, methods of interpretation, legal argumentation and its application as a discursive technique, all the way to new rhetoric showing the directions in which interpretation in law moved. The theoretical legal approach in the explication of the topic is based on the application of dogmatic, teleological, axiological, and sociological methods.

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