Prof. dr hab. Marek Smolak
Adam Mickiewicz University in Poznań
English abstract: The article’s purpose is to demonstrate that the directives of legal interpretation are constitutive and conventional. The directives of legal interpretation are constitutive because they confer the status of legal interpretive practice on social practice. The directives of legal interpretation are conventional because they are arbitrary in the sense given to them by A. Marmor. The directives of legal interpretation constitute not only the legal interpretive practice, but also the values of this practice. Among these values, I include innovative thinking, reasoning by analogy, intellectual challenges. If constitutive conventions are responsive, i.e., if they respond to various human needs and values, then at the core of legal interpretive practice there are values that are momentous for those who participate in these practices. Two types of values are distinguished: values in a strong sense and in a weak sense. Values in the strong sense are values whose realization is acontextual, i.e., independent of any context of a given legal interpretive practice. I include certainty and uniformity of understanding of legal texts in this category of values. On the other hand, values in the weak sense are contextual values, i.e., ones that depend on the goals that legal interpretive practice is supposed to fulfil. Examples of contextual values are adaptability and stability of law. I considered that there is a special relationship between values in both the strong and weak senses and the directives of legal interpretation. Based on mutual expectations, members of a given community assume that a particular directive of legal interpretation best realizes an important value of legal interpretation. The correctness of the above relationship largely depends on previous legal interpretive practice.
Keywords: legal interpretation directives, constitutive rule, conventional rule, values in legal interpretive practice
Language: Polish
Published: Number 2(43)/2025, pp. 80-96.
DOI: https://doi.org/10.36280/AFPiFS.2025.2.80
Download: Download
Number of downloads: 159
This text is licensed under a Creative Commons Attribution 4.0 International License.